HomeMy WebLinkAboutCT 96-03; Pacific View Estates; Tentative Map (CT) (9)PACIFIC WH COHMWIK LLC
P.O. BOX 2198-CARLSBAD, CALIFORNIA 92018
Phone 760-7iO-9785 ~ Fax 760-720-9785
November 6, 1997
Ms. Dee Landers, Associate Planner
City of Carlsbad
2075 Las Palmas Drive
Carlsbad, CA 92009-1576
(619) 438-1161 Ext. 4451. Fax:438-0894
RE: CT 96-03 TENTATIVE TRACT MAP Homeowner Association documents
and CC&R's., 26 Single Family Residential Detached Homes. AP No. 167-
250-16; Located at N.E. Corner of Donna Drive at Carlsbad Village Drive.
Dear Ms. Landers,
In accordance with Condition number 23, enclosed please find a copy of our C.C.&
R. documents for the above referenced project. Please note, Article XXI, pages 64
through 67 contain the City required verbiage to satisfy our Conditions of Approval
numbers: 23a, 23b, 23c, 24, 31, 37, and 41. Assuming these documents meet with
the City approval, then we will sign and execute the original for public recordation.
Should you have further questions or if I may be of any assistance, please don't
hesitate to call me direct at (760) 720-9780. Thanking you in advance for your
consideration and prompt response in these matters, I am,
Respectfully,
PACIFIC VIEW COMMUNITIES, LLC
Don L. Jack
Managing Member
RECEIVED RECEIVED
NOV 061997 N0v n« --'
CITY OF CARLSBAD CITY OF CARLSBAD
PLANNING DEPT. PLANNING DEPT.
chrn97
RECORDING REQUESTED BY: )
WHEN RECORDED MAIL TO: )
)
BRIAN D. GREENBERG, Esq. )
ONE AMERICA PLAZA )
600 West Broadway )
Suite 1400 )
San Diego, California 92101 )
(Space Above for Recorder's Use]
REVISED DRAFT
10/26/97
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
PACIFIC VIEW ESTATES
RECEIVED
MMD#295028
TABLE OF CONTENTS
FOR
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
PACIFIC VIEW ESTATES
1. Definitions 2
1.1. Annexable Territory 2
1.2. Articles 2
1.3. Assessment, Annual 2
1.4. Assessment, Capital Improvement 2
1.5. Assessment, Reconstruction 3
1.6. Assessment, Special 3
1.7. Association 3
1.8. Association Maintenance Funds 3
1.9. Association Property 3
1.10 . Beneficiary 3
1.11. Board or Board of Directors 3
1.12. Budget 4
1.13 . Bylaws 4
1.14 . City 4
1.15. Close of Escrow 4
1.16. Common Area 4
1.17. Declarant 5
1.18. Declaration 5
1.19. Deed of Trust 5
1.20. ORE 5
1.21. Family 5
1.22. FHLMC 5
1.23. Fiscal Year 5
1.24. FNMA 5
1.25. GNMA 5
1.26. Improvements 6
1.27. Landscape Maintenance Areas 6
1.28. Landscape Irrigation Areas 6
1.29. Manager 6
1.30. Member, Membership 6
1.31. Mortgage 6
1.32. Mortgagee, Mortgagor 6
1.33. Notice and Hearing 6
1.34. Owner 7
1.35. Person 7
1.36. Phase One (1) 7
1.37. Phase of Development 7
1.38. Property or Proj ect 7
1.39. Record, File, Recordation 7
1.40. Residence 7
1.41. Restrictions 7
1.42. Rules and Regulations 7
1.43. Separate Interest or Lot 8
2. PACIFIC VIEW ESTATES OF CARLSBAD HOMEOWNERS ASSOCIATION 8
2.1. Organization of Association 8
2.2. Duties and Powers 8
2.3. Membership 9
2.4. Transfer 9
2.5. Classes of Membership 9
2.6. Voting Rights 10
2.7. Repair and Maintenance by the Association 11
2.8. Unsegregated Real Property Taxes 11
2.9. Repair and Maintenance by Owners 12
2.10. Use of Agent 12
3. Rights in Association Property 13
3.1. Association Easement 13
3.2. Members' Easements in Common Property 13
3.3. Extent of Members' Easements 13
3.4. Delegation of Use 14
3.5. Waiver of Use 14
3.6. Damage by Member 14
4. Maintenance Funds and Assessments 15
4.1. Personal Obligation of Assessments 15
4.2. Maintenance Funds of Association 16
4.3. Purpose of Assessments 16
4.4. Limitations on Annual Assessment Increases 17
4.5. Annual Assessments/Commencement-Collection 20
4.6. Capital Improvement Assessments 20
4.7. Delinquency 20
4.8. Creation and Release of Lien 20
4.9. Enforcement of Liens 21
4.10. Priority of Assessment Lien 22
4.11. Capital Contributions to the Association 22
5. Property Easements and Rights of Entry 23
5.1. Easements 23
5.2. Rights of Entry 24
-11-
6. Declarant's Rights and Reservations 25
6.1. Declarant's General Rights and Reservations 25
7. Residence and Use Restrictions 26
7.1. Single Family Residences 26
7.2. Parking and Vehicular Restrictions 26
7.3. Parking Regulations 27
7.4. Nuisances 27
7.5. Signs 28
7.6. Antennas/Satellite Dishes 28
7.7. Animal Regulations 29
7.8. Business or Commercial Activity 29
7.9. Rubbish Removal 30
7.10. Further Subdivision 30
7.11. Drainage 31
7.12. View Obstructions 31
7.13. Rights of Handicapped 31
7.14. Maintenance/Alteration of Residences/fences 31
8 . Insurance 32
8.1. Duty to Obtain Insurance; Types 32
8.2. Waiver of Claims Against Insurance 33
8.3. Right and Duty of Owners to Insure 33
8.4. Notice of Expiration Requirements 33
8.5. Insurance Premiums 33
8.6. Trustee for Policies 34
8.7. Action as Trustee 34
8.8. Annual Insurance Review 35
9. Destruction of Improvements 35
9.1. Restoration of the Property 35
9.2. Notice to Owners and Listed Mortgagees 36
10. Rights of Mortgagees 36
11. Duration and Amendment 40
11.1. Duration 40
11.2. Termination and Amendment 40
11.3. Protection of Declarant 43
12. Enforcement of Certain Bonded Obligations 44
12.1. Consideration by Board of Directors 44
12.2. Consideration by the Members 44
-iii-
13. General Provisions 45
13.1. Enforcement of Restrictions 45
13.2. Severability 47
13.3. Interpretation 47
13.4. Mergers or Consolidations 47
13.5. No Public Right or Dedication 47
13.6. Nonliability and Indemnification 47
13.7. Notices 50
13.8. Priorities and Inconsistencies 50
13.9. Constructive Notice and Acceptance 50
13.10. Declarant's Right to Cure Alleged Defects 50
13.11. Arbitration of Alleged Defect Claims 52
13 .12. No Representations or Warranties 53
14. Annual Inspection 54
14 .1. Duty to .Inspect 54
14.2. Purpose of Inspection 54
14 . 3 . Scope of Inspection 54
14.4. Experts and Consultants 54
14 . 5 . Report to Owners 54
15. Alternative Dispute Resolution 55
15.1. Compliance with Civil Code Section 1354 55
15.2. Authority of Board of Directors 55
16. Organizational Documentation . 57
16.1. Documentation to be provided by Declarant 57
16.2. Documentation to be provided by Declarant for
Phases 58
17. Annexation of Additional Property 59
17.1. Additions by Declarant 59
17.2. Other Additions 59
17.3. Rights of Added Territory 60
17.4. Notice of Addition of Territory 60
17.5. Deannexation 61
18. Causes of Action in Tort 61
18.1. Lawsuits Against the Association 61
-iv-
19. Documentation to be provided Prospective Purchaser 62
19.1. Owner Requirements of Civil Code Section 1368 62
19.2. Association Requirements of Civil Code Section
1368 63
19.3. Failure to comply with Article XX 63
19.4. Validity of Transfer 64
19.5. Additional Owner Requirements 64
20. Civil Code Section 1375 64
20.1. Review of Civil Code Section 1375 64
21. Requirements of the City of Carlsbad 64
21.1. Conditions of Project Approval 64
21.2. Failure of the Association to Maintain Association
Property and Easements 64
21.3. Private Driveways 65
21.4. Special Assessments Levied by the City 65
21.5. Sight Distance Corridor 65
21.6. Maintenance of Lot Ten (10) 65
21.7. Maintenance of Concrete Terrace Drains 66
21.8. Open Space Easement 66
21.9. General Enforcement by the City 66
SUBORDINATION 69
EXHIBIT "A" 71
EXHIBIT "B" 72
EXHIBIT "1" 75
EXHIBIT "2" 76
-v-
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
PACIFIC VIEW ESTATES
THIS DECLARATION is made by PACIFIC VIEW COMMUNITIES LLC., a
California limited liability company ("Declarant").
PREAMBLE:
A. Declarant is the owner of Phase One (1) of certain real
property located in the City of Carlsbad, County of San Diego,
State of California, described as follows:
Lots Four (4) to Seven (7), inclusive, of CITY OF
CARLSBAD TRACT NO. 96-03, Map thereof No. , filed in
the Office of the County Recorder of said San Diego
County on 1997 as Instrument No. .
B. It is the desire and intention of Declarant to create a
"Planned Development," as defined in Section 1351(k) of the
California Civil Code, and to impose mutually beneficial
restrictions under a general plan of improvement for the benefit of
all the Lots and Association Property created pursuant to the
Davis-Stirling Common Interest Development Act. Phase One (1) is
the first phase of a multi-phase Planned Development which
Declarant proposes to develop in three (3) phases. There is no
assurance that all of the Planned Development and/or all of the
proposed phases will be completed as planned.
C. Declarant hereby declares that all the Property in Phase
One (1) is to be held, conveyed, hypothecated, encumbered, leased,
rented, used, occupied and improved subject to the limitations,
restrictions, reservations, rights, easements, conditions and
covenants contained in this Declaration, all of which are declared
and agreed to be in furtherance of a plan for the protection,
subdivision, maintenance, improvement and sale of the Property for
the purpose of enhancing the value, desirability and attractiveness
of the Property. All provisions of this Declaration, including
without limitation the easements, uses, obligations, covenants,
conditions and restrictions hereof, are hereby imposed as equitable
servitudes upon the Property. All of the limitations, restrictions,
reservations, rights, easements, conditions and covenants herein
shall run with and burden the Property and shall be binding on and
for the benefit of all of the Property and all Persons having or
acquiring any right, title or interest in the Property, or any part
thereof, and their successive owners and assigns.
ARTICLE I
1. Definitions.
Unless otherwise expressly provided, the following words and
phrases when used herein shall have the following specified
meanings.
1.1. Annexable Territory.
Annexable Territory shall mean the property described in Exhibit
"A" attached hereto and incorporated herein by this reference, all
or any portion of which may, from time to time, be made subject to
this Declaration pursuant to the provisions of Article XIX hereof.
1.2. Articles.
Articles shall mean the Articles of Incorporation of the
Association filed or to be filed in the Office of the Secretary of
State of the State of California, as such Articles may be amended
from time to time.
1.3. Assessment, Annual.
Annual Assessment shall mean a charge against a particular Owner
and his Lot, representing a portion of the Common Expenses which
are to be levied among all of the Owners and their Lots in the
Property in the manner and proportions provided herein.
1.4. Assessment, Capital Improvement.
Capital Improvement Assessment shall mean a charge which the Board
may from time to time levy against each Owner and his Lot,
representing a portion of the cost to the Association for
installation or construction of any capital improvements on any of
the Association Property. Such charge shall be levied equally among
all the Owners and their Lots in the Property.
1.5. Assessment, Reconstruction.
Reconstruction Assessment shall mean a charge which the Board may
from time to time levy against a particular Owner and his Lot,
representing a portion of the cost to the Association for
reconstruction of any Improvements on any of the Association
Property. Such charge shall be levied equally among all of the
Owners and their Lots in the Property.
1.6. Assessment, Special.
Special Assessment shall mean a charge against a particular Owner,
directly attributable to, or reimbursable by, that Owner, equal to
the cost incurred by the Association for corrective action
performed pursuant to the provisions of this Declaration, or a
reasonable fine or penalty assessed by the Board, plus interest and
other charges on such Special Assessments as provided for herein.
Special Assessments shall not include any late payment penalties,
interest charges or costs (including attorneys' fees) incurred by
the Association in the collection of Annual, Capital Improvement
and Reconstruction Assessments.
1.7. Association.
Association shall mean PACIFIC VIEW ESTATES OF CARLSBAD HOMEOWNERS
ASSOCIATION, a California nonprofit corporation (formed pursuant to
the Nonprofit Mutual Benefit Corporation Law of the State of
California), its successors and assigns. The Association is an
"association" as defined in Section 1351 (a) of the California Civil
Code.
1.8. Association Maintenance Funds.
Association Maintenance Funds shall mean the accounts created for
receipts and disbursements of the Association, pursuant to Article
V hereof.
1.9. Association Property.
Association Property shall mean all of the real and personal
property and Improvements to which the Association shall hold fee
title for the common use and enjoyment of the Members as provided
herein. There is no Association Property in Phase One (1) . There is
additional Association Property included as part of the Annexable
Territory and described on Exhibit "A" of this Declaration.
1.10. Beneficiary.
Beneficiary shall mean a Mortgagee under a Mortgage or a
Beneficiary under a Deed of Trust, as the case may be, and the
assignees of such Mortgagee or Beneficiary.
1.11. Board or Board of Directors.
Board or Board of Directors shall mean the Board of Directors of
the Association.
1.12. Budget.
Budget shall mean a written, itemized estimate of the income and
Common Expenses of the Association in performing its functions
under this Declaration, which Budget shall be prepared pursuant to
the Bylaws.
1.13. Bylaws.
Bylaws shall mean the Bylaws of the Association as adopted by the
Board, as such Bylaws may be amended from time to time.
1.14. City.
City shall mean the incorporated municipal City of Carlsbad, the
County of San Diego, State of California, and its various
departments, divisions, employees and representatives.
1.15. Close of Escrow.
Close of Escrow shall mean the date on which a deed is Recorded
conveying a Lot pursuant to a transaction requiring the issuance of
a Final Subdivision Public Report by the ORE.
1.16. Common Expenses.
Common Expenses shall mean those expenses for which the Association
is responsible under this Declaration, including the actual and
estimated costs of: maintenance, management, operation, repair and
replacement of the Association Property and Landscape Maintenance
Areas; unpaid Special Assessments, Reconstruction Assessments and
Capital Improvement Assessments; the cost of maintenance of the
recreational facilities on the Association Property; the costs of
any and all utilities metered to more than one Lot and other
commonly metered charges for the Property; the costs of trash
collection and removal (as applicable); the costs of maintenance of
the entry gate, clustered mailboxes and address identification
signs; costs of management and administration of the Association
including, but not limited to, compensation paid by the Association
to managers, accountants, attorneys and other employees; the costs
of all gardening, security, and other services benefiting the
Association Property and the Landscape Maintenance Areas; the costs
of fire, casualty and liability insurance, workers' compensation
insurance, errors and omissions and director, officer and agent
liability insurance, worker's compensation insurance, and other
insurance covering the Property and the directors, officers and
agents of the Association; the costs of bonding of the members of
the Board; taxes paid by the Association, including any blanket tax
assessed against the Property; amounts paid by the Association for
discharge of any lien or encumbrance levied against the Property,
or portions thereof; and the costs of any other item or items
incurred by the Association, for any reason whatsoever in
connection with the Property, for the common benefit of the Owners.
1.17. Declarant.
Declarant shall mean PACIFIC VIEW COMMUNITIES LLC., a California
limited liability company, its successors, and any Person to which
it shall have assigned any of its rights hereunder by an express
written assignment.
1.18. Declaration.
Declaration shall mean this instrument, as it may be amended from
time to time.
1.19. Deed of Trust.
Deed of Trust shall mean a Mortgage as further defined herein.
1.20. ORE.
ORE shall mean the California Department of Real Estate and any
successors thereto.
1.21. Family.
Family shall mean one or more natural persons related to each other
by blood, marriage or adoption, or one or more natural persons not
all so related, but who maintain a common household in a Residence.
1.22. FHLMC.
FHLMC shall mean the Federal Home Loan Mortgage Corporation (also
known as The Mortgage Corporation) created by Title II of the
Emergency Home Finance Act of 1970, and any successors to such
corporation.
1.23. Fiscal Year.
Fiscal Year shall mean the fiscal accounting and reporting period
of the Association selected by the Board from time to time.
1.24. FNMA.
FNMA shall mean the Federal National Mortgage Association, a
government-sponsored private corporation established pursuant to
Title VIII of the Housing and Urban Development Act of 1968, and
any successors to such corporation.
1.25. GNMA.
GNMA shall mean the Government National Mortgage Association
administered by the United States Department of Housing and Urban
Development, and any successor to such association.
1.26. Improvements.
Improvements shall mean all structures and appurtenances thereto of
every type and kind, including but not limited to, buildings,
walkways, sprinkler pipes, recreational facilities, roads,
driveways, parking areas, fences, screening walls, block walls,
retaining walls, awnings, stairs, decks, landscaping, antennae,
hedges, windbreaks, the exterior surfaces of any visible structure
and the paint on such surfaces, planted trees and shrubs, poles,
signs, exterior air conditioning and water softener fixtures or
equipment.
1.27. Landscape Maintenance Areas.
Landscape Maintenance Areas shall mean the portion of the Project
described in Exhibit "1".
1.28. Landscape Irrigation Areas.
Landscape Irrigation Areas shall mean the portion of the Project
described in Exhibit "2".
1.29. Manager.
Manager shall mean the Person employed by the Association pursuant
to and limited by the provisions of this Declaration, and delegated
the duties, power or functions of the Association as limited by
this Declaration, the Bylaws and the terms of the agreement between
the Association and said Person.
1.30. Member, Membership.
Member shall mean any Person holding a membership in the
Association, as provided in this Declaration. Membership shall mean
the property, voting and other rights and privileges of Members as
provided herein, together with the correlative duties and
obligations contained in the Restrictions.
1.31. Mortgage.
Mortgage shall mean any Recorded mortgage or deed of trust or other
conveyance of one or more Lots or other portion of the Property to
secure the performance of an obligation, which conveyance will be
reconveyed upon the completion of such performance.
1.32. Mortgagee, Mortgagor.
Mortgagee shall mean a Person to whom a Mortgage is made and shall
include the Beneficiary of a Deed of Trust. "Mortgagor" shall mean
a Person who mortgages his or its property to another (i.e., the
maker of a Mortgage), and shall include the Trustor of a Deed of
Trust. The term "Trustor" shall be synonymous with the term
"Mortgagor" and the term "Beneficiary" shall be synonymous with the
term "Mortgagee."
1.33. Notice and Hearing.
Notice and Hearing shall mean written notice and a hearing before
the Board, at which the Owner concerned shall have an opportunity
to be heard in person, or by counsel at the Owner's expense, in the
manner further provided in the Bylaws.
1.34. Owner.
Owner shall mean the Person or Persons, including Declarant,
holding fee simple interest to a Lot. The term "Owner" shall
include a seller under an executory contract of sale but shall
exclude Mortgagees.
1.35. Person.
Person shall mean a natural individual or any other entity with the
legal right to hold title to real property.
1.36. Phase One (1).
Phase One (1) shall mean all of the real property described in
Paragraph A to the Preamble of this Declaration.
1.37. Phase of Development.
Phase of Development shall mean (a) Phase One (1) or (b) all the
real property covered by a Notice of Addition recorded pursuant to
Article XIX of this Declaration, for which a Final Subdivision
Public Report has been issued by the DRE, unless otherwise defined
in such Notice of Addition.
1.38. Property or Project.
Property or Project shall mean all of the real property described
in Paragraph A of the Preamble to this Declaration. The Property is
a "common interest development" and a "planned development" as
defined in Section 1351(c) and-Section 1351(k), respectively, of
the California Civil Code.
1.39. Record, File, Recordation.
Record, Recorded, Filed, or Recordation shall mean, with respect to
any document, the recordation or filing of such document in the
Office of the San Diego County Recorder.
1.40. Residence.
Residence shall mean a Lot intended for use by a single Family,
1.41. Restrictions.
Restrictions shall mean this Declaration, the Articles, Bylaws and
the Rules and Regulations of the Association from time to time in
effect.
1.42. Rules and Regulations.
Rules and Regulations shall mean the rules and regulations adopted
by the Board pursuant to this Declaration or the Bylaws, as such
rules and regulations may be amended from time to time.
1.43. Separate Interest or Lot.
Separate Interest or Lot shall mean a separate interest in space as
defined in Section 1351(1) of the California Civil Code. Each
Separate Interest or Lot shall be a separate freehold estate.
ARTICLE II
2. PACIFIC VIEW ESTATES OF CARLSBAD HOMEOWNERS ASSOCIATION.
2.1. Organization of Association.
The Association is or shall be incorporated under the name of
PACIFIC VIEW ESTATES OF CARLSBAD HOMEOWNERS ASSOCIATION, as a
corporation not for profit under the Nonprofit Mutual Benefit
Corporation Law of the State of California, as required by Section
1363 of the California Civil Code.
2.2. Duties and Powers.
The duties and powers of the Association are those set forth in the
Declaration, the Articles and Bylaws, together with its general and
implied powers of a nonprofit mutual benefit corporation, generally
to do any and all things that a corporation organized under the
laws of the State of California may lawfully do which are necessary
or proper, in operating for the peace, health, comfort, safety and
general welfare of its Members, subject only to the limitations
upon the exercise of such powers as are expressly set forth in the
Articles, the Bylaws and in this Declaration. The Association shall
further have the right to install or construct capital Improvements
on the Association Property. The Association may at any time, and
from time to time reconstruct, replace or refinish any Improvement
or portion thereof upon the Association Property in accordance with
the original design, finish or standard of construction of such
Improvement; replace destroyed trees or other vegetation and plant
trees, shrubs and ground cover upon any portion of the Association
Property. The Association may employ personnel necessary for the
effective operation and maintenance of the Association Property,
including the employment of legal, management and accounting
services. The Association shall additionally have the power but not
the duty to enter into contracts with Owners or other persons to
provide services or to maintain and repair Improvements within the
Property and elsewhere which the Association is not otherwise
required to provide or maintain pursuant to this Declaration;
provided, however, that any such contract shall provide for the
payment to the Association for the costs of providing such services
or maintenance. Concurrently with the commencement of Annual
Assessments as provided in Section 5.5 of this Declaration. The
obligations thereunder are hereby deemed to have been assigned to
and accepted by the Association as of the commencement of Annual
Assessments. The Association shall maintain the Landscape
Maintenance Areas and the Landscape Irrigation Areas described in
Exhibit "1" and Exhibit "2". In addition, in the event Lot 8,
described on Exhibit "A" as Association Property, is conveyed to
the Association and made subject to this Declaration, the
Association shall assign the use of the Recreational Vehicle
Parking Areas located on Lot 8. Use of the Recreational Vehicle
Parking Areas located on Lot 8 by an Owner without the approval of
the Board of Directors of the Association is hereby prohibited.
2.3. Membership.
Every Owner, upon becoming the Owner of a Lot, shall automatically
become a Member of the Association, and shall remain a Member
thereof until such time as his ownership ceases, at which time his
membership in the Association shall automatically cease. Ownership
of a Lot shall be the sole qualification for Membership in the
Association. Membership in the Association shall not be assignable
except to the Person to which title to the Lot has been
transferred, and every Membership in the Association shall be
appurtenant to and may not be separated from the fee ownership of
such Lot. The rights, duties, privileges and obligations of all
Members of the Association shall be as provided in the
Restrictions.
2.4. Transfer.
The Membership held by any Owner shall not be transferred, pledged
or alienated in any way, except upon the sale or encumbrance of
such Owner's Lot and then only to the purchaser or Mortgagee of
such Lot. A prohibited transfer is void and will not be reflected
upon the books and records of the Association. A Class A Member who
has sold his Lot to a contract purchaser under an agreement to
purchase shall be entitled to delegate to the contract purchaser
his Membership rights in the Association. The delegation shall be
in writing and shall be delivered to the Board before the contract
purchaser may vote. However, the contract seller shall remain
liable for all charges and assessments attributable to his Lot
until fee title to the Lot sold is transferred. If the Owner of any
Lot fails or refuses to transfer his Membership to the
purchaser of the Lot upon transfer of fee title thereto, the Board
of Directors shall have the right to record the transfer upon the
books of the Association. Until satisfactory evidence of such
transfer has been presented to the Board, the purchaser shall not
be entitled to vote at meetings of the Association. The Association
may levy a reasonable transfer fee against a new Owner and his Lot
(which fee shall be added to the Annual Assessment chargeable to
such new Owner) to reimburse the Association for the administrative
cost of transferring the membership to the new Owner on the records
of the Association provided such fee does not exceed the
Association's actual cost involved in changing its records of
ownership.
2.5. Classes of Membership.
The Association shall have two (2) classes of voting Membership.
(a) Class A. Class A Members shall originally be all
Owners except Declarant for so long as there exists a Class
Membership. Class A Members shall be entitled to one (1) vote for
each Lot owned by such Class A Members and subject to assessment.
Declarant shall become a Class A Member with regard to Lots
owned by Declarant upon conversion of Declarant's Class B
Membership as provided below. When more than one (1) Person owns
any Lot, all such Persons shall be Members. The vote for such Lot
shall be exercised in accordance with Section 2.6, but in no event
shall more than one (1) Class A vote be cast for any Lot.
(b) Class B. The Class B Member shall be Declarant. The
Class B Member shall be entitled to three (3) votes for each Lot
owned by Declarant and subject to assessment. The Class B
Membership shall cease and be converted to Class A Membership
immediately upon the first to occur of the following events:
(1) The second anniversary of the first Close of Escrow
in the most recent Phase of the Project; or
(2) The fourth anniversary of the first Close of Escrow
in the first Phase of the Project;
2.6. Voting Rights.
(a) All voting rights shall be subject to the
Restrictions. Except as provided in Section 13.2 of this
Declaration and Section 4.8 of the Bylaws, as long as there
exists a Class B Membership, any provision of this
Declaration, the Articles or Bylaws which expressly requires
the vote or written consent of a specified percentage (i.e.,
other than actions requiring merely the vote or written
consent of a majority of a quorum) of the voting power of the
Association before action may be undertaken shall require the
approval of such specified percentage of the voting power of
each class of membership. Except as provided in Section 13.2
of this Declaration and Section 4.8 of the Bylaws, upon
termination of the Class B Membership, any provision of this
Declaration, the Articles or Bylaws which expressly requires
the vote or written consent of Owners representing a specified
percentage (i.e., other than actions requiring merely the vote
or written consent of a majority of a quorum) of the voting
power of the Association before action may be undertaken shall
then require the vote or written consent of Owners
representing such specified percentage of both the total
voting power of the Association and the voting power of the
Association residing in Owners other than Declarant.
10
(b) Class A Members shall be entitled to one (1) vote for
each Lot in which they hold the interest required for
Membership. When more than one (1) Person holds such interest
or interests in any Lot ("co-owners"), all of such co-owners
shall be Members and may attend any meeting of the
Association, but only one (1) such co-owner shall be entitled
to exercise the single vote to which the Lot is entitled. Co-
owners owning the majority interests in a Lot shall from time
to time designate in writing one of their number to vote.
Fractional votes shall not be allowed, and the vote for each
Lot shall be exercised, if at all, as a unit. Where no voting
co-owner is designated or if the designation has been revoked,
the vote for the Lot shall be exercised as the co-owners
owning the majority interests in the Lot mutually agree.
Unless the Board receives a written objection in advance from
a co-owner, it shall be conclusively presumed that the
corresponding voting co-owner is acting with the consent of
his co-owners. No vote shall be cast for any Lot if the co-
owners present in person or by proxy owning the majority
interests in such Lot cannot agree to said vote or other
action. The nonvoting co-owner or co-owners shall be jointly
and severally responsible for all of the obligations imposed
upon the jointly-owned Lot and shall be entitled to all other
benefits of ownership. All agreements and determinations
lawfully made by the Association in accordance with the voting
percentages established herein, or in the Bylaws of the
Association, shall be deemed to be binding on all Owners,
their successors and assigns.
2.7. Repair and Maintenance by the Association.
Subject to Article X pertaining to destruction of Improvements and
Article XI pertaining to eminent domain, the Association shall
paint, maintain, repair and replace the Association Property and
Improvements thereon or shall contract for such maintenance, repair
and replacement to assure maintenance of the Association Property
and Improvements thereon in a clean, sanitary and attractive
condition reasonably consistent with the level of maintenance
reflected in the most current Budget on file with and approved by
the DRE. The Board shall determine, in its sole discretion, the
level and frequency of maintenance of the Association Property.
2.8. Unsegregated Real Property Taxes.
To the extent not assessed to or paid by the Owners, the
Association shall pay all real and personal property taxes and
assessments levied upon any portion of the Property. In addition,
if all of the Lots in the Property are taxed under a blanket tax
bill covering all of the Property each Owner shall pay his
proportionate share of any installment due under the blanket tax
11
bill to the Association at least ten (10) days prior to the
delinquency date. The Association shall transmit the taxes to the
appropriate tax collection agency on or before the delinquency
date. Blanket taxes for the Property shall be allocated equally
among the Owners and their Lots, based upon the total number of
Lots in the Property. The Association shall, at least forty-five
(45) days prior to the delinquency date of any blanket tax
installment, deliver to each Owner a copy of the tax bill, along
with a written notice setting forth the Owner's obligation to pay
his proportionate share of the tax installment and the potential
additional charges to the Owner for failure to comply. The
Association shall pay the taxes on behalf of any Owner who does not
pay his proportionate share. The Association shall add to the
Annual Assessment of a delinquent Owner the amount of any sum
advanced, plus interest at the rate of twelve percent (12%) per
annum and any amount necessary to reimburse" the Association for any
penalty or late charge actually assessed in connection with the
blanket tax bill, which late charge results from the failure of the
delinquent Owner to make timely payment of his proportionate share
of the taxes. Until the Close of Escrow for the sale of ninety
percent (90%) of the Lots in the Property, the foregoing provisions
relating to the collection of taxes in connection with a blanket
tax bill on all or any portion of the Property may not be amended
without the express written consent of Declarant.
2.9. Repair and Maintenance by Owners.
Each Owner shall maintain, repair, replace, paint, paper, plaster,
tile, finish and restore or cause to be so maintained, repaired,
replaced and restored, at his sole expense, all portions of his
Residence.
2.10. Use of Agent.
The Board of Directors, on behalf of the Association, may contract
with a Manager for the performance of maintenance and repair and
for conducting other activities on behalf of the Association, as
may be determined by the Board. The maximum term of any such
contract ("Management Contract") shall be one (1) year, unless a
longer term is approved either by vote or written assent of a
majority of the voting power of the Association. The maximum term
of any contract providing for Declarant's services to the
Association or the Project shall also be three (3) years. Each such
contract for Declarant's services and each Management Contract
shall provide for its termination by either party thereto with
cause upon no more than thirty (30) days' written notice to the
other party, and without cause and without payment of a termination
fee upon no more than ninety (90) days' written notice to the other
party.
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ARTICLE III
3. Rights in Association Property.
3.1. Association Easement.
The Association shall have an easement over the Association
Property and the Landscape Maintenance Areas for performing its
duties and exercising its powers described in this Declaration. The
Association's obligations to maintain the Common Property shall
commence on the date Annual Assessments commence on Lots in Phase
One (1) of the Property. Until commencement of Annual Assessments
on Lots in Phase One (1) of the Property, the Association Property
and the Landscape Maintenance Areas shall be maintained by
Declarant.
3.2. Members' Easements in Association Property. Subject
to the provisions of this Declaration, every Member of the
Association shall have, for himself, his Family, his tenants and
guests, a nonexclusive easement of access, ingress, egress, use and
employment of, in, to and over the Association Property, and such
easement shall be appurtenant to and shall pass with title to every
Lot in the Property.
3.3. Extent of Members' Easements.
The rights and easements of use and enjoyment of the Association
Property created by this Declaration shall be subject to the
Restrictions, which include, without limitation, the following:
(a) The right of the Board to suspend the rights and
easements of any Member, and the Persons deriving such rights
and easements from any Member, for use and enjoyment of any
recreation facilities located on the Association Property, for
any period during which the payment of any Annual, Special,
Capital Improvement or Reconstruction Assessment against the
Member and his Lot remains delinquent, and, after Notice and
Hearing as provided in the Bylaws, to suspend such rights and
easements for the period set forth in the Bylaws for any
violation of the Restrictions, it being understood that any
suspension for either nonpayment of any Assessment or breach
of the Restrictions shall not constitute a waiver or discharge
of the Member's obligation to pay assessments as provided in
this Declaration;
(b) Subject to the approval of seventy-five percent (75%)
of each class of Membership, the right of the Association to
consent to or otherwise cause the construction of additional
Improvements on the Association Property and to consent to or
otherwise cause the alteration or removal of any existing
Improvements on the Association Property for the benefit of
the Members of the Association;
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(c) The right of the Association, acting through the
Board, to grant, consent to or join in the grant or conveyance
of easements, licenses or rights-of-way in, on or over the
Association Property for purposes not inconsistent with the
intended use of the Property as a residential planned
development;
(d) The rights and reservations of Declarant as set forth
in this Declaration;
(e) The right of the Association, acting through the
Board, to reasonably restrict access to roofs, maintenance and
landscaped areas and similar areas of the Property;
(f) The right of the Association to reasonably limit the
number of guests and tenants of the Owners using the
Association Property; and
(g) The right of the Association, with the approval of
fifty-one percent (51%) of each class of membership, acting
through the Board, to establish uniform Rules and Regulations
for the use of the Association Property.
3.4. Delegation of Use.
Any Owner entitled to the right and easement of use and enjoyment
of the Association Property may delegate his right and easement to
his tenants, contract purchasers or subtenants who reside in his
Lot, subject to reasonable regulation by the Board. An Owner who
has so delegated his right and easement shall not be entitled to
use or enjoyment of the recreational facilities or equipment of the
Association Property for so long as such delegation remains in
effect.
3.5. Waiver of Use.
No Owner may exempt himself from personal liability for assessments
duly levied by the Association, or effect the release of his Lot
from the liens and charges thereof, by waiving the use and
enjoyment of the Association Property or by abandoning his Lot.
3.6. Damage by Member.
To the extent permitted by California law, each Member shall be
liable to the Association for any damage to the Association
Property not fully reimbursed to the Association by insurance
(including without limitation any deductible amounts under any
insurance policies against which the Association files a claim for
such damage) if the damage is sustained because of the negligence,
willful misconduct by the Member, his guests, tenants or invitees,
or any other Persons deriving their right and easement of use and
enjoyment of the Association Property from the Member, or his or
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their respective family and guests, both minor and adult. However,
the Association, acting through the Board, reserves the right to
determine whether any claim shall be made upon the insurance
maintained by the Association, and the Association further reserves
the right, after Notice and Hearing as provided in the Bylaws, to
levy a Special Assessment equal to the increase, if any, in
insurance premiums directly attributable to the damage caused by
the Member or the Person for whom the Member may be liable as
described above. In the case of joint ownership of a Lot, the
liability of the owners shall be joint and several, except to the
extent that the Association shall have previously contracted in
writing with the joint owners to the contrary. After Notice and
Hearing as provided in the Bylaws, the cost of correcting the
damage to the extent not reimbursed to the Association by insurance
shall be a Special Assessment against such Member's Lot, and may be
enforced as provided herein.
ARTICLE IV
4. Maintenance Funds and Assessments.
4.1. Personal Obligation of Assessments.
Declarant, for each Lot owned by it, hereby covenants and agrees to
pay, and each Owner, by acceptance of a deed to a Lot whether or
not it shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Association (1) Annual Assessments for
Common Expenses, (2) Special Assessments, (3) Reconstruction
Assessments and (4) Capital Improvement Assessments; such
assessments to be established and collected as provided herein. The
Association shall not levy or collect any Annual Assessment,
Capital Improvement Assessment, Special Assessment or
Reconstruction Assessment that exceeds the amount necessary for the
purpose for which it is levied. Except as provided in this Section
4.1, all such assessments (other than Special Assessments),
together with interest, costs, and reasonable attorneys' fees for
the collection thereof, shall be a charge on the Lot against which
such assessment is made. Each such assessment (including Special
Assessments), together with interest, costs and reasonable
attorneys' fees, shall also be the personal obligation of the
Person who was the Owner of the Lot at the time when the assessment
fell due. This personal obligation cannot be avoided by abandonment
of the Lot or by an offer to waive use of the Association Property
The personal obligation for delinquent assessments shall not pass
to any new Owner ("Purchaser") unless expressly assumed by the
Purchaser.
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4.2. Maintenance Funds of Association.
The Board of Directors shall establish no fewer than two (2)
separate Association Maintenance Fund accounts into which shall be
deposited all monies paid to the Association, and from which
disbursements shall be made, as provided herein, in the performance
of functions by the Association under this Declaration. The
Association Maintenance Funds may be established as trust accounts
at a banking or savings institution and shall include: (1) an
Operating Fund for current Common Expenses of the Association, (2)
an adequate Reserve Fund for capital improvements, replacements,
painting and repairs of the Association Property (which cannot
normally be expected to occur on an annual or more frequent basis),
and for payment of deductible amounts for policies of insurance
which the Association obtains as provided in Section 8.1 hereof,
and (3) any other funds which the Board of Directors may establish
to the extent necessary under the provisions of this Declaration.
Nothing contained herein shall limit, preclude or impair the
establishment of additional Maintenance Funds by the Association,
so long as the amounts assessed to, deposited into, and disbursed
from any such Fund are earmarked for specified purposes authorized
by this Declaration.
4.3. Purpose of Assessments.
The assessments levied by the Association shall be used exclusively
to promote the recreation, health, safety and welfare of the Owners
and for the operation, replacement, improvement and maintenance of
the Association Property and to discharge any other obligations of
the Association under this Declaration. All amounts deposited into
the Maintenance Funds must be used solely for the common benefit of
all of the Owners for purposes authorized by this Declaration.
Disbursements from the Operating Fund shall be made by the Board of
Directors for such purposes as are necessary for the discharge of
its responsibilities herein for the common benefit of all of the
Owners, other than those purposes for which disbursements from the
Reserve Fund are to be used. In accordance with ORE Regulation
2792.16 (j), the Board of Directors shall not expend funds
designated as reserve funds for any purpose other than those
purposes set forth in California Civil Code Section 1365.5. Nothing
contained herein shall limit, preclude or impair the establishment
of additional Maintenance Funds by the Association, so long as the
amounts assessed to, deposited into, and disbursed from any such
Fund are earmarked for specified purposes authorized by this
Declaration. Nothing in this Declaration shall be construed in
such a way as to prohibit the use of Association assessments or
funds to abate any annoyance or nuisance emanating from outside the
boundaries of the Property. Annual Assessments shall be used to
satisfy Common Expenses of the Association, as provided herein and
in the Bylaws.
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4.4. Limitations on Annual Assessment Increases.
The Board shall levy Annual Assessments in accordance with the
following provisions and, in accordance with DRE regulation 2792.16
(d) must comply with the provisions of Section 1366 of the
California Civil Code prior to any increase in Annual Assessments:
(a) Maximum Authorized Annual Assessment for Initial Year
of Operations. Until the first day of the Fiscal Year
immediately following the Fiscal Year in which Annual
Assessments commence, the Board may only levy an Annual
Assessment per Lot in an amount which exceeds the Annual
Assessment per Lot as disclosed in the Final Subdivision
Public Report issued by the California Department of Real
Estate if the Board first obtains the approval of Members
casting a majority of votes at a meeting or election of the
Association in which more than fifty percent (50%) of the
Members are represented ("Increase Election") . Notwithstanding
the foregoing, this Section does not limit Annual Assessment
increases necessary for addressing an "Emergency Situation" as
defined in Section 5.4(d).
(b) Maximum Authorized Annual Assessment for Subsequent
Fiscal Years. Starting with the first Fiscal Year immediately
following the Fiscal Year in which Annual Assessments
commence, the Board may only levy Annual Assessments which
exceed the Annual Assessments for the immediately preceding
Fiscal Year as follows:
(1) If the increase in Annual Assessments is less
than or equal to ten percent (10%) of the Annual
Assessments for the immediately preceding Fiscal Year,
then the Board may levy the Annual Assessment without
obtaining the approval of Members casting a majority of
votes in an Increase Election;
(2) If the increase in Annual Assessments is greater
than ten percent (10%) of the Annual Assessments for the
immediately preceding Fiscal Year, then the Board must
obtain the approval of Members casting a majority of
votes in an Increase Election.
Notwithstanding the foregoing, this Section does not
limit Annual Assessment increases necessary for addressing an
"Emergency Situation" as defined in Section 4.4(d).
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(c) Supplemental Annual Assessments. If the Board, by
majority vote, determines that the important and essential
functions of the Association may be properly funded by an
Annual Assessment in an amount less than the maximum
authorized Annual Assessment described above, it may levy such
lesser Annual Assessment. If the Board determines that the
estimate of total charges for the current year is or will
become inadequate to meet all Common Expenses for the Property
for any reason, it shall immediately determine the approximate
amount of the inadequacy. Subject to the limitations described
in Sections 4.4(a) and (b) above and (d) below, and compliance
with the provisions of California Civil Code Section 1366, the
Board shall have the authority to levy, at any time by a
majority vote, a supplemental Annual Assessment reflecting a
revision of the total charges to be assessed against each Lot.
(d) Emergency Situations. For purposes of Sections
4.4 (a) , 4.4(b) and 4.6, 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 Property or any portion thereof for which
the Association is responsible when a threat to personal
safety on the Property is discovered; and
(3) An extraordinary expense necessary to repair or
maintain the Property or any portion thereof for which
the Association is responsible that could not have been
reasonably foreseen by the Board when preparing the
Budget. Prior to the imposition or collection of an
assessment pursuant to this subparagraph (3), 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. The resolution shall
be distributed to the Members with the Notice of
Assessment.
(4) An extraordinary expense in making the first
payment of the earthquake insurance surcharge pursuant to
Section 5003 of the Insurance Code.
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4.5. Annual Assessments/Commencement-Collection.
The Board of Directors shall authorize and levy the amount of the
Annual Assessment upon each Lot, as provided herein, by majority
vote of the Board. Annual Assessment shall commence on all Lots in
a Phase of Development on the first day of the first calendar month
following the first Close of Escrow for the sale of a Lot in such
Phase of Development or on the first day of the first calendar
month following the conveyance of the Association Property, if any,
to the Association, whichever shall first occur. All Annual
Assessments shall be assessed equally against the Members and their
Lots based upon the number of Lots owned by each Member. Annual
Assessments for fractions of any month involved shall be prorated.
Declarant shall pay its full pro rata share of the Annual
Assessments on all unsold Lots for which Annual Assessments have
commenced. The Board shall fix the amount of the Annual Assessment
against each Lots at least thirty (30) days in advance of each
Annual Assessment period. However, unless otherwise established by
the Board, the initial Annual Assessments shall be assessed in
accordance with the most recent Budget on file with and approved by
the DRE. Written notice of any change in the amount of any Annual
Assessment, Capital Improvement Assessment or Reconstruction
Assessment shall be sent via first-class mail to every Owner
subject thereto, not less than thirty (30) nor more than sixty (60)
days prior to the increased assessment becoming due. From time to
time the Board may determine that all excess funds in the Operating
Fund be retained by the Association and used to reduce the
following year's Annual Assessment. Upon dissolution of the
Association incident to the abandonment or termination of the
Property, any amounts remaining in any of the Maintenance Funds
shall be distributed to or for the benefit of the Members in the
same proportions as such monies were collected from the Members.
Each Member shall pay to the Association his Annual Assessment
in installments at such frequency and in such amounts as
established by the Board. Each installment of Annual Assessments
may be paid by the Member to the Association in one check or in
separate checks as payments attributable to deposits into specified
Association Maintenance Funds. If any installment of an Annual
Assessment payment is less than the amount assessed and the payment
does not specify the Association Maintenance Fund or Funds into
which it should be deposited, the receipt by the Association from
that Member shall be credited in order of priority first to the
Operating Fund, until that portion of the Annual Assessment has
been satisfied, and second to the Reserve Fund.
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4.6. Capital Improvement Assessments.
Subject to compliance with the provisions of California Civil Code
Section 1366, the Board of Directors of the Association may levy,
in any Fiscal Year, a Capital Improvement Assessment or
Reconstruction Assessment applicable to that Fiscal Year only for
the purpose of defraying, in whole or in part, the cost of any
construction, reconstruction, repair or replacement of a capital
Improvement or other such addition upon the Association Property
including fixtures and personal property related thereto.
4.7. Delinquency.
Any installment of an assessment provided for in this Declaration
shall be delinquent if not paid within fifteen (15) days of the due
date as established by the Board of Directors of the Association.
The Board shall be authorized to adopt a system pursuant to which
any installment of Annual Assessments, Capital Improvement
Assessments, Special Assessments, or Reconstruction Assessments not
paid within thirty (30) days after the due date, plus all
reasonable costs of collection (including attorneys' fees) and late
charges as provided herein, shall bear interest commencing thirty
(30) days from the due date until paid at the rate of up to twelve
percent (12%) per annum, but in no event more than the maximum rate
permitted by law. The Board may also require the delinquent owner
to pay a late charge in accordance with California Civil Code
Section 1366(c)(2). The Association need not accept any tender of
a partial payment of an installment of an assessment and all costs
and attorneys' fees attributable thereto, and any acceptance of any
such tender shall not be deemed to be a waiver of the Association's
right to demand and receive full payments thereafter.
4.8. Creation and Release of Lien.
All sums other than Special Assessments assessed in accordance with
the provisions of this Declaration shall constitute a lien on the
respective Lot prior and superior to (a) any declaration of
homestead Recorded after the Recordation of this Declaration, and
(b) all other liens, except (1) all taxes, bonds, assessments and
other levies which, by law, would be superior thereto, and (2) the
lien or charge of any first Mortgage of record (meaning any
Recorded Mortgage or Deed of Trust with first priority or seniority
over other Mortgages or Deeds of Trust) made in good faith and for
value and Recorded prior to the date on which the "Notice of Lien"
(described in this Section) against the respective Lot was
Recorded. The lien shall become effective upon Recordation by the
Board or its authorized agent of a Notice of Assessment ("Notice of
Lien") securing the payment of any Annual, Capital Improvement or
Reconstruction Assessment or installment thereof, levied by the
Association against any Lot Owner as provided in Section 1367 of
the California Civil Code. The Notice of Lien shall state (i) the
20
amount of the assessment or installment, as the case may be, and
other authorized charges and interest, including the cost of
preparing and Recording and Notice of Lien, (ii) the expenses of
collection in connection with any delinquent installments, including
without limitation reasonable attorneys' fees, (iii) a sufficient
description of the Lot against which the same has been assessed,
(iv) the name and address of the Association, (v) the name of the
Owner thereof, and (vi) in order for the lien to be enforced by
nonjudicial foreclosure, the name and address of the trustee
authorized by the Association to enforce the lien by sale. The
Notice of Lien shall be signed by any authorized officer or agent
of the Association. The Lien shall relate only to the individual
Lot against which the assessment was levied and not to the Property
as a whole. Upon payment to the Association of the full amount
claimed in the Notice of Lien, or other satisfaction thereof, the
Board of Directors shall cause to be Recorded a Notice of
Satisfaction and Release of Lien ("Notice of Release") stating the
satisfaction and release of the amount claimed. The Board of
Directors may demand and receive from the applicable Owner a
reasonable charge, to be determined by the Board, for the
preparation and Recordation of the Notice of Release before
Recording it. Any purchaser or encumbrancer who has acted in good
faith and extended value may rely upon the Notice of Release as
conclusive evidence of the full satisfaction of the sums stated in
the Notice of Lien.
4.9 Enforcement of Liens.
It shall be the duty of the Board of Directors to enforce the
collection of any amounts due under this Declaration by one or more
of the alternative means of relief afforded by this declaration.
The lien on a Lot may be enforced by sale of the Lot by the
Association, the Association attorneys, any title insurance company
authorized to do business in California, or other persons authorized
to conduct the sale as a trustee, after failure of the Owner to pay
any Annual, Capital Improvement or Reconstruction Assessment, or
installment thereof, as provided herein. The sale shall be
conducted in accordance with the provisions of the California Civil
Code, applicable to the exercise of powers of sale in mortgages and
deeds of trust, or in any manner permitted by law. An action may
be brought to foreclose the lien of the association by the Board,
or by any Owner if the Board fails or refuses to act, after the
expiration of at least one hundred twenty (120) days from the date
on which the Notice of Lien was Recorded; provided that at least ten
(10) days have expired since a copy of the Notice of Lien was mailed
to the Owner affected thereby. The Association, through its agents,
shall have the power to bid on the Lot at foreclosure sale, and to
acquire and hold, lease, mortgage and convey the same. Upon
completion of the foreclosure sale, an action may be brought by the
21
Association or the purchaser at the sale in order to secure
occupancy of the defaulting Owner's Lot, and the defaulting Owner
shall be required to pay the reasonable rental value for such Lot
during any period of continued occupancy by the defaulting Owner or
any persons claiming under the defaulting Owner. Suit to recover a
money judgment for unpaid assessments shall be maintainable without
foreclosing or waiving any lien securing the same, but this
provision or any institution of suit to recover a money judgment
shall not constitute an affirmation of the adequacy of money
damages. Any recovery resulting from a suit in law or equity
initiated pursuant to this Section may include reasonable
attorneys' fees as fixed by the court.
4.10. Priority of Assessment Lien.
The lien of the assessments provided for herein, including interest
and costs (including attorneys' fees), shall be subordinate to the
lien of any previously Recorded first Mortgage upon one or more
Lot. Sale or transfer of any Lot shall not affect the assessment
lien. However, the sale or transfer of any Lot pursuant to judicial
or nonjudicial foreclosure of a first Mortgage shall extinguish the
lien of such assessments as to payments which became due prior to
such sale or transfer. No sale or transfer shall relieve such Lot
from liens for any assessments thereafter becoming due. When the
Beneficiary of a first Mortgage of record or other purchaser of a
Lot obtains title pursuant to a judicial or nonjudicial foreclosure
of the first Mortgage, such Person, his successors and assigns,
shall not be liable for the share of the Common Expenses or
assessments by the Association chargeable to such Lot which became
due prior to the acquisition of title to such Lot such Person. Such
unpaid share of Common Expenses or assessments shall be deemed to
be Common Expenses collectible from all of the Owners of the Lot
including such Person, his successors and assigns.
4.11. Capital Contributions to the Association.
Upon acquisition of record title to a Lot from Declarant, each
Owner of a Lot in a Phase of Development shall contribute to the
capital of the Association an amount equal to one-sixth (l/6th) of
the amount of the then Annual Assessment for that Lot as determined
by the Board. This amount shall be deposited by the buyer into the
purchase and sale escrow and disbursed therefrom to the Association
or to Declarant if Declarant has previously advanced such funds to
the Association.
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ARTICLE V
5. Property Easements and Rights of Entry.
5.1. Easements.
(a) Access. Declarant expressly reserves for the benefit
of the Owners reciprocal, nonexclusive easements for access,
ingress and egress over all of the Association Property and
Landscape Maintenance Areas including any private streets or
driveways currently existing in the Property or subsequently
added to it, which easements may be conveyed by Declarant to
Owners and to the Association for so long as Declarant owns
any interest in the Property. Subject to the provisions of
this Declaration governing use and enjoyment thereof, the
easements may be used by all Owners and their guests, tenants
and invitees residing on or temporarily visiting the Property,
for walkways, vehicular access and such other purposes
reasonably necessary for use and enjoyment of a Lot in the
Property.
(b) Maintenance and Repair. Declarant expressly reserves
for the benefit of the Board of Directors and all agents,
officers and employees of the Association, nonexclusive
easements over the Association Property, the Landscape
Maintenance Areas, and the Landscape Irrigation Areas only as
necessary to maintain and repair the Association Property, the
Landscape Maintenance Areas, and the Landscape Irrigation
Areas and to perform all other necessary tasks in accordance
with the provisions of this Declaration. Such easements over
the Association Property, the Landscape Maintenance Areas, and
the Landscape Irrigation Areas shall be appurtenant to and
binding upon, and shall pass with the title to, every Lot
conveyed.
(c) Utility Easements. Declarant expressly reserves for
the benefit of the Association the right of Declarant to grant
additional easements and rights-of-way over the Property to
utility companies and public agencies, as necessary, for the
proper development and disposal of the Property. Such right of
Declarant shall expire upon Close of Escrow for the sale of
all Lots in the Property or upon expiration of five (5) years
from the date of original issuance by the DRE of the Final
Subdivision Public Report for the Property, whichever comes
first.
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(e) Encroachments. Declarant, the Association and Owners
of contiguous Residences shall have a reciprocal easement
appurtenant to each of the Residences over the Residences and
the Association Property for the purpose of (1) accommodating
any existing encroachment of any wall of any Improvement, and
(2) maintaining the same and accommodating authorized
construction, reconstruction, repair, shifting, movement or
natural settling of the Improvements or any other portion of
the Property housing their respective Residences. Easements
and reciprocal negative easements for utility services and
repairs, replacement and maintenance of the same over all of
the Association Property are specifically reserved for the
benefit of the Owners. Declarant expressly reserves for the
benefit of the Association Property, and for the benefit of
the Owners and the Association, reciprocal nonexclusive
easements for drainage of water over, across and upon the
Association Property. The foregoing easements shall not
unreasonably interfere with each Owner's use and enjoyment of
adjoining Residences. No portion of the Association Property,
including without limitation parking spaces and other
amenities contemplated as a part of the Property, are proposed
to be leased by Declarant to the Owners or to the Association.
(f) Completion of Improvements. Declarant expressly
reserves for its benefit the right and easement to enter the
Property to complete any Improvement which Declarant deems
desirable to implement Declarant's development plan.
5.2. Rights of Entry.
The Board of Directors shall have a limited right of entry in and
upon the Association Property, the Landscape Maintenance Area, the
Landscape Irrigation Area for the purpose of inspecting the
Property, and taking whatever corrective action may be deemed
necessary or proper by the Board of Directors, consistent with the
provisions of this Declaration. Nothing herein shall be construed
to impose any obligation upon the Association to maintain or repair
any property or Improvements required to be maintained or repaired
by the Owners. An Owner shall permit a right of entry to the Board
of Directors or any other person authorized by the Board of
Directors, as reasonably necessary, such as in case of any
emergency originating in or threatening his Residence, whether the
Owner is present or not. Any damage caused to a Residence by such
entry by the Board of Directors or by any person authorized by the
Board of Directors shall be repaired by the Association as a Common
Expense of the Association.
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ARTICLE VI
6. Declarant's Rights and Reservations.
6.1. Declarant's General Rights and Reservations.
Nothing in the Restrictions shall limit, and no Owner or the
Association shall do anything to interfere with, the right of
Declarant to subdivide or resubdivide any portion of the Property,
or to complete Improvements to and on the Association Property or
any portion of the Property owned solely or partially by Declarant,
or to alter the foregoing or its construction plans and designs, or
to construct such additional Improvements as Declarant deems
advisable in the course of development of the Property so long as
any Lot in the Property remains unsold. The rights of Declarant
hereunder shall include, but shall not be limited to, the right to
install and maintain such structures, displays, signs, billboards,
flags and sales offices as may be reasonably necessary for the
conduct of its business of completing the work and disposing of the
Lots by sale, resale, lease or otherwise. Each Owner by accepting
a deed to a Lot hereby acknowledges that the activities of
Declarant may temporarily or permanently impair the view of such
Owner and may constitute an inconvenience or nuisance to the
Owners, and hereby consents to such impairment, inconvenience or
nuisance. This Declaration shall not limit the right of Declarant
at any time prior to acquisition of title to a Lot in the Property
by a purchaser from Declarant to establish on that Lot additional
licenses, easements, reservations and rights-of-way to itself, to
utility companies, or to others as may from time to time be
reasonably necessary to the proper development and disposal of the
Property. Declarant may use any Lots owned by Declarant in the
Property as model home complexes or real estate sales or leasing
offices. Declarant need not seek or obtain the approval of the
Board of Directors for approval of any Improvement constructed or
placed on any portion of the Property by Declarant. The rights of
Declarant hereunder and elsewhere in these Restrictions may be
assigned by Declarant to any successor in interest to any portion
of Declarant's interest in any portion of the Property by a written
assignment. Notwithstanding any other provision of this
Declaration, the prior written approval of Declarant, as developer
of the Property, will be required before any amendment to this
Article shall be effective. Each Owner hereby grants, upon
acceptance of his deed to his Lot, an irrevocable, special power of
attorney to Declarant to execute and Record all documents and maps
necessary to allow Declarant to exercise its rights under this
Article. Declarant and its prospective purchasers of Lots shall be
entitled to the nonexclusive use of the Association Property and
any recreational facilities thereon, without further cost for
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access, ingress, egress, use or enjoyment, in order to show the
Property to its prospective purchasers and dispose of the Property
as provided herein. Declarant, its successors and tenants, shall
also be entitled to the nonexclusive use of any portions of the
Property which comprise private streets, drives and walkways for
the purpose of ingress, egress and accommodating vehicular and
pedestrian traffic to and from the Property. The use of the
Association Property by Declarant shall not unreasonably interfere
with the use thereof by other Owners. The Association shall provide
Declarant with all notices and other documents to which a
Beneficiary is entitled pursuant to this Declaration, provided that
Declarant shall be provided such notices and other documents
without making . written request therefor. The rights and
reservations of Declarant set forth in this Article VII shall
terminate on the fifth (5th) anniversary of the first Close of
Escrow for the sale of a Lot in the Property.
ARTICLE VII
7. Residence and Use Restrictions.
All of the Property shall be held, used and enjoyed subject to the
following limitations and restrictions and the exemptions of
Declarant set forth in this Declaration.
7.1. Single Family Residences.
That portion of the Lot comprising the "residential elements" shall
be used for no other purpose other than a residence for a single
Family or in the case of Lots 14, 21, 24, and 27, a secondary
single family residential dwelling is permitted. An Owner may rent
his Residence to a single Family provided that the Residence is
rented pursuant to a lease or rental agreement which is (a) in
writing, (b) for a term of at least thirty (30) days, and (c)
subject to all of the provisions of this Declaration. Private
recreational vehicle storage on an Owners Lot is acceptable
provided the recreational vehicle is screened and/or reasonably
well hidden from street view. Recreational vehicles and
automobiles may not be permanently parked and/or stored on a
driveway located on an Owners Lot or on public streets. The term
"permanently parked and/or stored" shall mean in excess of fourteen
(14) days.
7.2. Parking and Vehicular Restrictions.
All vehicles owned or operated by or within the control of an Owner
or a resident of an Owner's Lot and kept within the Property shall
be parked in the assigned garage of that Owner to the extent of the
space available; provided that each Owner shall ensure that any
such garage accommodates at least the number of vehicles for
which it was originally constructed. No repair, maintenance or
restoration of any vehicle shall be conducted on the Property
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except within an enclosed garage when the garage door is closed,
provided such activity is not undertaken as a business, and
provided that such activity may be prohibited entirely by the Board
if the Board determines that it constitutes a nuisance.
7.3 Parking Regulations.
The Board may establish additional regulations as is reasonable and
deemed appropriate.
7.4. Nuisances.
No noxious or offensive activities shall be carried on upon the
Property or on any public street abutting or visible from the
Property. No horns, whistles, bells or other sound devices, except
security devices used exclusively to protect the security of a
Residence and its contents, shall be placed or used in any such
Residence. Noisy vehicles, large power equipment and large power or
commercial tools, off-road motor vehicles or items which may
unreasonably interfere with television or radio reception of any
Owner in the Property and objects which create or emit loud noises
or noxious odors, shall not be located, used or placed on any
portion of the Property or on any public street abutting or visible
from the Property, or exposed to the view of other Owners without
the prior written approval of the Board of Directors. The Board
shall have the right to determine if any noise, odor, or activity
producing such noise or odor constitutes a nuisance. No Owner shall
permit or cause anything to be done or kept upon the Property or on
any public street abutting or visible from the Property which may
increase the rate of insurance on Lots or on Association Property,
or result in the cancellation of such insurance, or which will
obstruct or interfere with the rights of
other Owners, nor commit or permit any nuisance thereon or violate
any law on any public street abutting or visible from the Property.
Each Owner shall comply with all of the requirements of the local
or state health authorities and with all other governmental
authorities with respect to the occupancy and use of a Residence.
Each Owner shall be accountable to the Association and other Owners
for the conduct and behavior of children and other family members
or persons residing in or visiting his Residence. Any damage to the
Association Property, personal property of the Association, or
property of another Owner, caused by such children or other family
members shall be repaired at the sole expense of the Owner of the
Residence where such children or other family members or persons
are residing or visiting.
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7.5. Signs.
No sign, poster, display, billboard or other advertising device of
any kind shall be displayed to the public view on any portion of
the Property or on any public street abutting or visible from the
Property, or shown or displayed from any Residence, without the
prior written consent of the Board of Directors, provided, however,
that the restrictions of this Section shall not apply to any sign
or notice of customary and reasonable dimension which states that
the Residence is for rent or sale, so long as it is consistent with
the standards promulgated by the Board of Directors. Such sign or
notice may be placed within a Residence, and may also be placed
upon the Association Property with the prior written approval of
the Board of Directors; provided that the location of such sign or
notice on the Association Property shall be within an area
specifically established by the Board of Directors for such
purpose. This Section shall not apply to any signs used by
Declarant or its agents in connection with the sale of Lots or the
construction or alteration of the Residences or Association
Property, traffic and visitor parking signs installed by Declarant,
and traffic and parking control signs installed with the consent of
the Board. Notwithstanding the foregoing, nothing contained in this
Section shall be construed in such manner as to permit the
maintenance of any sign which is not in conformance with any
ordinance of the City.
7.6. Antennas/Satellite Dishes.
No alteration to or modification of a central radio/or television
antenna system or cable television system, whichever is applicable,
if developed by the Declarant or a cable television franchisee and
is maintained by the Association or said franchisee, shall be
permitted. Small radio, television antenna's or satellite dishes
or other such similar electronic receiving devices, shall be
permitted; however, no Owner or Invitee may be permitted to
construct and/or use and operate in a manner which would be
considered to unreasonably obstruct the view of another Owner of a
Lot. No other such devices shall be permitted, including, but not
limited to "Citizens Band" (C.B.), amateur radio, microwave
transmission, or other similar electronic receiving or broadcasting
devices, without the prior written consent of the Board or its
delegated committee, and the necessary approvals and permits
obtained from the appropriate local government agency.
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In accordance with and subject to 47 Code of Federal Regulations
Section 1.4000, a copy of which is attached hereto as Exhibit "B",
the Board of Directors shall give such applications expeditious
handling prior to other matters pending before the Board of
Directors. The Board of Directors shall, in reviewing each
application, consider, with the assistance of counsel, the
requirements set forth in Exhibit "B" attached hereto and any
amendments thereto.
Nothing provided for herein shall obligate the Declarant or the
Board to install a master antenna system. All fees for the use of
any cable television system shall be borne by the respective
Owners, and not by the Declarant.
7.7. Animal Regulations.
No livestock, reptiles, insects, poultry or other such creatures or
the like of any kind shall be raised, bred or kept in any Residence
except that usual and ordinary domestic dogs, cats, fish, and birds
inside bird cages may be kept as household pets within any
Residence provided that they are not kept, bred or raised therein
for commercial purposes or in unreasonable quantities or sizes. As
used in the Declaration, "unreasonable quantities" shall ordinarily
mean more than two (2) pets per Residence; provided, however, that
the Board may determine that a reasonable number in any instance
may be more or less. The Board shall have the right to limit the
size of pets and may prohibit maintenance of any animal which
constitutes, in the opinion of the Board, a nuisance to any other
Owner. Animals belonging to Owners, occupants or their licensees,
tenants or invitees within the Property must be either kept within
an or on a leash held by a person capable of controlling the
animal. Furthermore, any Owner shall be liable to each and all
remaining Owners, their families, guests and invitees, for any
unreasonable noise or damage to person or property caused by any
animals brought or kept upon the Property by such Owner or by
members of his family, his tenants or his guests; and it shall be
the duty and responsibility of each such Owner to clean up after
such animals which have used any portion of the Property or public
street abutting or visible from the Property.
7.8. Business or Commercial Activity.
No part of the Property shall ever be used for any business,
commercial (including auctions or similar events), manufacturing,
mercantile, storage, vending or other nonresidential purposes,
including without limitation any activity for which the provider is
compensated in any way or receives any form of consideration,
regardless of whether the activity is engaged in full or part-time,
generates or does not generate a profit, or requires or does not
require a license; except Declarant, its successors and assigns may
29
use any portion of the Property for a model home site and display
and sales offices in accordance with Article VII hereof. The
provisions of this Section 8.8 shall not preclude any of the above-
described activities without external evidence thereof, provided
that all of the following conditions are fulfilled: (a) such
activities are conducted in conformance with all applicable
governmental ordinances; (b) the patrons or clientele of such
activities do not visit the Residences or park automobiles or other
vehicles within the Property; (c) the existence or operation of
such activities is not apparent or detectable by sight, sound or
smell from the outside of the boundaries of the Residences; (d) no
such activity increases the liability or casualty insurance
obligation or premium of the Association; and (e) such activities
are consistent with the residential character of the Property and
conform with the provisions of this Declaration.
7.9. Rubbish Removal.
Trash, garbage, or other waste shall be disposed of by residents of
the Property only by depositing the same into trash containers. No
portion of the Property shall be used for the storage of building
materials, refuse or any other materials, except that building
materials may be kept on any balcony, patio or parking space
temporarily during construction. No clothing, household fabrics or
other unsightly articles shall be hung, dried or aired on any
portion of the Property, including the interior of any Residence,
so as to be visible from other Residences or the street. There
shall be no exterior fires whatsoever except barbecue fires
contained within receptacles therefor.
7.10. Further Subdivision.
Except as otherwise provided herein, no Owner shall physically or
legally further subdivide his Lot in any manner, including without
limitation, the division of his Lot into time-share estates or
time-share uses; provided, however, that this provision shall not
be construed to limit the right of an Owner to (1) rent or lease
all of his Lot by means of a written lease or rental agreement
subject to the restrictions of this Declaration; (2) to sell his
Lot; or (3) to transfer or sell any Lot to more than one Person to
be held by them as tenants-in-common, joint tenants, tenants by the
entirety or as community property. Any failure by the lessee of the
Lot to comply with the terms of this Declaration, the Bylaws of the
Association or the Rules and Regulations shall constitute a default
under the lease or rental agreement. Notwithstanding the foregoing,
no Lot in the Property may be partitioned or subdivided without the
prior written approval of the Beneficiary of any first Mortgage on
that Lot. This Section may not be amended without the prior written
approval of the Beneficiaries of at least seventy-five percent
(75%) of the first Mortgages of Lots in the Property.
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7.11. Drainage.
There shall be no interference with or alteration of the
established drainage pattern over the Property, unless an adequate
alternative provision is made for proper drainage with the prior
written approval of the Board of Directors. For the purpose hereof,
"established" drainage is defined as the drainage which exists at
the time of the first Close of Escrow for the sale of a Lot or that
which is shown on any plans.
7.12. View Obstructions.
No vegetation or other obstruction shall be planted or maintained
upon any patio or balcony in such location or of such height as to
unreasonably obstruct the view from any other Residence in the
vicinity thereof. If there is a dispute between Owners concerning
the obstruction of a view from a Residence, the dispute shall be
submitted to the Board of Directors, whose decision in such
matters shall be binding. Any such obstruction shall be removed by
the Owner of the Residence upon which the obstruction is located.
Any item or vegetation maintained upon any patio or balcony, which
item or vegetation is exposed to the view of any Owner, shall be
removed if the Board of Directors determines that the maintenance
of such item or vegetation in its then existing state is contrary
to the purposes or provisions of this Declaration. If an owner
fails to perform necessary pruning, trimming, or thinning, the
Association shall have the right, after Notice and Hearing, to
enter upon such Residence for the purpose of performing such work.
The Board of Directors shall ensure that the vegetation on the
Association Property maintained by the Association is cut
frequently, so that the view of any Owner is not unreasonably
obstructed.
7.13. Rights of Handicapped.
Subject to the provisions of Article IV of this Declaration, each
Owner shall have the right to modify his Residence at his sole cost
and expense, in order to facilitate access to his Residence by
persons who are blind, visually handicapped, deaf or physically
disabled, or to alter conditions which could be hazardous to such
persons.
7.14. Maintenance/Alteration of Residences/fences.
The exteriors of all Residences and fences shall be maintained in
a clean, attractive and well-kept condition and in conformity with
the general plan established by this Declaration and the aesthetic
appearance of the Property.
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ARTICLE VIII
8. Insurance.
8.1. Duty to Obtain Insurance: Types.
(a) Public Liability. The Board shall cause to be
obtained and maintained adequate blanket public liability
insurance (including medical payments), with such limits as
may be considered acceptable to FNMA (not less than $1 million
covering all claims for personal injury and property damage
arising out of a single occurrence), insuring against
liability for bodily injury, death and property damage arising
from the activities of the Association and its Members, with
respect to the Association Property.
(b) Fire and Casualty Insurance. The Board shall also
cause to be obtained and maintained fire and casualty
insurance with extended coverage, without deduction for
depreciation, in an amount as near as possible to the full
replacement value of the Association Property.
(c) Fidelity Bonds. Fidelity bond coverage which names
the Association as an obligee must be obtained by or on behalf
of the Association for any person or entity handling funds of
the Association, including, but not limited to, officers,
directors, trustees, employees and agents of the Association
and employees of the Manager of the Association, whether or
not such Persons are compensated for their services, in an
amount not less than the estimated maximum of funds, including
reserve funds, in the custody of the Association or the
Manager, as the case may be, at any given time during the term
of each bond. However, in no event may the aggregate amount of
such bonds be less than the sum equal to one fourth (1/4) of
the Annual Assessments on all Lots in the Property, plus
reserve funds.
(d) Insurance Required by FNMA, GNMA and FHLMC. The
Association shall continuously maintain in effect such
casualty, flood and liability insurance and fidelity bond
coverage meeting the insurance and fidelity bond requirements
for planned unit development established by FNMA, GNMA and
FHLMC, so long as any of which is a Mortgagee or Owner of a
Lot within the Property, except to the extent such coverage is
not available or has been waived in writing by FNMA, GNMA and
FHLMC, as applicable.
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(e) Other Insurance. The Board of Directors shall
purchase such other insurance, as necessary, including but not
limited to, errors and omissions, directors, officers and
agents liability insurance, plate glass insurance, medical
payments, malicious mischief, liquor liability and vandalism
insurance, fidelity bonds and worker's compensation, and such
other risks as shall customarily be covered with respect to
planned developments similar in construction, location and
use.
(f) Beneficiaries. Such insurance shall be maintained for
the benefit of the members of the Association.
8.2. Waiver of Claims Against Association.
As to all policies of insurance maintained by or for the benefit of
the Association and its members, the Association and its members
hereby waive and release all claims against one another, the Board
of Directors and Declarant, to the extent of the insurance proceeds
available, whether or not the insurable damage or injury is caused
by the negligence of or breach of any agreement by any of said
Persons.
8.3. Right and Duty of Owners to Insure.
It is the responsibility of each Owner to provide insurance for the
Residence on his Lot.
8.4. Notice of Expiration Requirements.
If available, each of the policies of insurance maintained by the
Association shall contain a provision that said policy shall not be
canceled, terminated, materially modified or allowed to expire by
its terms, without ten (10) days' prior written notice to the Board
and Declarant, and to each Owner and Beneficiary, insurer and
guarantor of a first Mortgage who has filed a written request with
the carrier for such notice, and every other Person in interest who
requests such notice of the insurer. In addition, fidelity bonds
shall provide that they may not be canceled or substantially
modified without ten (10) days prior written notice to any
insurance trustee named pursuant to Section 9.6 and to each FNMA
servicer who has filed a written request with the carrier for such
notice.
8.5. Insurance Premiums.
Insurance premiums for any insurance coverage obtained by the
Association and deemed necessary by the Board of Directors shall be
a Common Expense to be included in the Annual Assessments levied by
the Association and collected from the Owners. That portion of the
Annual Assessments necessary for the required insurance premiums
shall be separately accounted for by the Association in the Reserve
Fund, to be used solely for the payment of premiums of required
insurance as such premiums become due.
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8.6. Trustee for Policies.
The Association, acting through its Board of Directors, is hereby
appointed and shall be deemed trustee of the interests of all named
insureds under policies of insurance purchased and maintained by
the Association. Unless the applicable insurance policy provides
for a different procedure for the filing of claims, all claims made
under such policy shall be sent to the insurance carrier or agent,
as applicable, by certified mail and be clearly identified as a
claim. A record of all claims made shall be kept by the
Association. All insurance proceeds under any such policies as
provided for in Section 8.1 of this Article shall be paid to the
Board of Directors as trustees. The Board shall have full power to
receive and to receipt for the proceeds and to deal therewith as
provided herein. Insurance proceeds shall be used by the
Association for the repair or replacement of the property for which
the insurance was carried or otherwise disposed of as provided in
Article IX of this Declaration. The Board is hereby granted the
authority to negotiate loss settlements with the appropriate
insurance carriers, with participation, to the extent they desire,
of first Mortgagees who have filed written requests within ten (10)
days of receipt of notice of any damage or destruction as provided
in Section 9.4 of this Declaration. Any two (2) officers of the
Association may sign a loss claim form and release form in
connection with the settlement of a loss claim, and such signatures
shall be binding on all the named insureds. A representative chosen
by the Board may be named as an insured, including a trustee with
whom the Association may enter into an insurance trust agreement or
any successor to such trustee, who shall have exclusive authority
to negotiate losses under any policy providing property or
liability insurance and to perform such other functions necessary
to accomplish this purpose.
8.7. Actions as Trustee.
Except as otherwise specifically provided in this Declaration, the
Board, acting on behalf of the Association and all Owners, shall
have the exclusive right to bind such parties in respect to all
matters affecting insurance carried by the Association, the
settlement of a loss claim, and the surrender, cancellation, and
modification of all such insurance, in a manner satisfactory to
Beneficiaries of seventy-five percent (75%) of the first Mortgages
held by first Mortgagees who have filed requests under Section 9.4.
Duplicate originals or certificates of all policies of fire and
casualty insurance maintained by the Association and of all
renewals thereof, together with proof of payment of premiums, shall
be delivered by the Association to all Owners and Mortgagees who
have requested the same in writing.
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8.8. Annual Insurance Review.
The Board shall review the insurance carried by or on behalf of the
Association at least annually, for the purpose of determining the
amount of the casualty and fire insurance referred to in Section
8.1 above. If economically feasible, the Board shall obtain a
current appraisal of the full replacement value of the Improvements
on the Association Property except for foundations and footings,
without deduction for depreciation, from a qualified independent
insurance appraiser, prior to each such annual review.
ARTICLE IX
9. Destruction of Improvements.
9.1. Restoration of the Association Property.
Except as otherwise provided in this Declaration, in the event of
any destruction of any portion of the Association Property, the
repair or replacement of which is the responsibility of the
Association, it shall be the duty of the Association to restore and
repair the same to its former condition, as promptly as practical.
The proceeds of any insurance maintained pursuant to Article IX
hereof for reconstruction or repair of the Association Property
shall be used for such purpose, unless otherwise provided herein.
The Board shall be authorized to have prepared the necessary
documents to effect such reconstruction as promptly as practical.
The Association Property shall be reconstructed or rebuilt
substantially in accordance with the original construction plans if
they are available, unless changes recommended by the Board of
Directors have been approved in writing by sixty-seven percent
(67%) of the Owners and by the Beneficiaries of fifty-one percent
(51%) of first Mortgages upon the Lots. If the amount available
from the proceeds of such insurance policies for such restoration
and repair is at least eighty-five percent (85%) of the estimated
cost of restoration and repair, a Reconstruction Assessment shall
be levied by the Board of Directors to provide the necessary funds
for such reconstruction, over and above the amount of any insurance
proceeds available for such purpose. If the amount available from
the proceeds of such insurance policies for such restoration and
repair is less than eighty-five percent (85%) of the estimated cost
of restoration and repair, the Board may levy a Reconstruction
Assessment and proceed with the restoration and repair only if both
of the following conditions ("Conditions to Reconstruction") have
first been satisfied: (a) the levy of a Reconstruction Assessment
to pay the costs of restoration and repair of the Association
Property is approved by the affirmative vote or written consent of
sixty-seven percent (67%) of the Owners and by the written consent
of the Beneficiaries of fifty-one percent (51%) of the first
35
Mortgages on the Lots in the Property; and (b) within six (6)
months after the date on which the destruction occurred, the Board
Records a certificate of the resolution authorizing the restoration
and repair ("Reconstruction Certificate"). If either of the
Conditions to Reconstruction does not occur following a destruction
for which insurance proceeds available for restoration and repair
are less than eighty-five percent (85%) of the estimated cost of
restoration and repair, it shall be conclusively presumed that the
Owners have determined not to proceed with restoration and repair
and not to allow the Board to levy a Reconstruction Assessment.
9.2. Notice to Owners and Listed Mortgagees.
The Board, immediately upon having knowledge of any damage or
destruction affecting a material portion of the Association
Property, shall promptly notify all Owners and Beneficiaries,
insurers and guarantors of first Mortgages on Lots in the Property
who have filed a written request for such notice with the Board.
The Board, immediately upon having knowledge of any damage or
destruction affecting a Residence, shall promptly notify any
Beneficiary, insurer or guarantor of any Mortgage encumbering such
Residence who has filed a written request for such notice with the
Board.
ARTICLE X
10. Rights of Mortgagees.
Notwithstanding any other provisions of this Declaration, no
amendment or violation of this Declaration shall operate to defeat
or render invalid the rights of the Beneficiary under any Deed of
Trust upon one (1) or more Lots made in good faith and for value,
provided that after the foreclosure of any such Deed of Trust such
Lot(s) shall remain subject to this Declaration, as amended. For
purposes of this Declaration, "first Mortgage" shall mean a
Mortgage with first priority over other Mortgages or Deeds of Trust
on a Condominium, and "first Mortgagee" shall mean the Beneficiary
of a first Mortgage. For purposes of any provision of this
Declaration or the other Restrictions which require the vote or
approval of a specified percentage of first Mortgagees, such vote
or approval shall be determined based upon one (1) vote for each
Lot encumbered by each such first Mortgagee. In order to induce
FHLMC, GNMA and FNMA to participate in the financing of the sale of
Lots within the Project, the following provisions are added hereto
(and to the extent these added provisions conflict with any other
provisions of the Restrictions, these added provisions shall
control):
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(a) Each Beneficiary, insurer and guarantor of a first
Mortgage encumbering one (1) or more Lots, upon filing a
written request for notification with the Board, is entitled
to written notification from the Association of:
(1) any condemnation or casualty loss which affects
either a material portion of the Association Property or
the Lot(s) securing the respective first Mortgage; and
(2) any delinquency of sixty (60) days or more in
the performance of any obligation under the Restrictions,
including without limitation the payment of assessments
or charges owed by the Owner(s) of the Lot(s) securing
the respective first Mortgage, which notice each Owner
hereby consents to and authorizes; and
(3) a lapse, cancellation, or material modification
of any policy of insurance or fidelity bond maintained by
the Association; and
(4) any proposed action of the Association which
requires consent by a specified percentage of first
Mortgagees.
(b) Each Owner, including each first Mortgagee of a
Mortgage encumbering any Lot who obtains title to such Lot
pursuant to the remedies provided in such Mortgage, or by
foreclosure of the Mortgage, or by deed or assignment in lieu
of foreclosure, shall be exempt from any "right of first
refusal" created or purported to be created by the
Restrictions.
(c) Each first Mortgagee of a Mortgage encumbering any
Lot which obtains title to such Lot, pursuant to the remedies
provided in such Mortgage or by foreclosure of such Mortgage,
shall take title to such Lot free and clear of any claims for
unpaid assessments or charges against such Lot which accrued
prior to the time such Mortgagee acquires title to such Lot in
accordance with Section 5.10.
(d) Unless at least sixty-seven percent (67%) of the
first Mortgagees or sixty-seven percent (67%) of the Owners
(other than Declarant) have given their prior written
approval, neither the Association nor the Owners shall:
(1) by act or omission seek to abandon or terminate
the Association Property; or
37
(2) change the pro rata interest or obligations of
any Lot in order to levy assessments or charges, allocate
distributions of hazard insurance proceeds or
condemnation awards or determine the pro rata share of
ownership of each Lot in the Association Property; or
(3) partition or subdivide any Lot; or
(4) by act or omission, seek to abandon, partition,
subdivide, encumber, sell or transfer the Association
Property. (The granting of easements for public utilities
or for other purposes consistent with the intended use of
the Association Property under this Declaration, and the
granting of exclusive easements to Owners over portions
of the Association Property to conform the boundaries of
the Association Property to the as-built location of
Improvements installed or constructed by Declarant shall
not be deemed a transfer within the meaning of this
clause); or
(5) by act or omission change, waive or abandon any
scheme of regulations, or enforcement thereof, pertaining
to the architectural design, the exterior appearance or
the maintenance of the Lots or the Association Property;
or
(6) fail to maintain or cause to be maintained Fire
and Extended Coverage insurance on insurable Association
Property as provided in Article IX of this Declaration;
or
(7) use hazard insurance proceeds for losses to any
Association Property for other than the repair,
replacement or reconstruction of such Association
Property, subject to the provisions of Article X of this
Declaration; or
(8) change the method of determining the
obligations, assessments, other charges which may be
levied any Owner.
(e) All Beneficiaries, insurers, and guarantors of first
Mortgages, upon written the Association, shall have the right
and guaranty request to:
(1) examine current copies of the Association's
books, records and financial statements and the
Restrictions during normal business hours; and
38
(2) require the Association submit an annual audited
financial statement without expense to the entity
requesting the statement; and
(3) receive written notice of all meetings of
Owners; and
(4) designate in writing a representative who shall
be authorized to attend all meetings of Owners.
(f) All Beneficiaries, insurers and guarantors of first
Mortgages, upon written request, shall be given thirty (30)
days' written notice prior to the effective date of (1) any
proposed, material amendment to the Restrictions; (2) any
termination of an agreement for professional management of the
Property following any decision of the Owners to assume self-
management of the Project; and (3) any proposed termination of
the Property as a Planned Development.
(g) The Reserve Fund described in Article V of this
Declaration must be funded by regular scheduled monthly,
quarterly, semiannual or annual payments rather than by large
special assessments.
(h) The Board shall secure and cause to be maintained in
force at all times a fidelity bond for any Person handling
funds of the Association, including, but not limited to,
employees of the professional Manager.
(i) The Board may enter into such contracts or agreements
on behalf of the Association as are required in order to
satisfy the guidelines of the FHLMC, FNMA or GNMA or any
similar entity, so as to allow for the purchase, guaranty or
insurance, as the case may be, by such entities of first
Mortgages encumbering Lots. Each Owner hereby agrees that it
will benefit the Association and the membership of the
Association, as a class of potential Mortgage borrowers and
potential sellers of their residential Lots, if such agencies
approve the Property as a qualifying subdivision under their
respective policies, rules and regulations, as adopted from
time to time. Each Owner hereby authorizes his Mortgagees to
furnish information to the Board concerning the status of any
Mortgage encumbering a Lot.
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(j) When professional management has been previously
required by a Beneficiary, insurer or guarantor of a first
Mortgage, any decision to establish self-management by the
Association shall require the approval of sixty-seven percent
(67%) of the voting power of the Association and the
Beneficiaries of fifty-one percent (51%) of the first
Mortgages of the Lots in the Project.
(k) First Mortgagees may, jointly or singly, pay taxes or
other charges which are in default and which may or have
become a charge against any Association Property and may pay
any overdue premiums on hazard insurance policies, or secure
new hazard insurance coverage on the lapse of a policy, for
Association Property, and First Mortgagees making such
payments shall be owed immediate reimbursement therefor from
the Association.
ARTICLE XI
11. Duration and Amendment.
11.1. Duration.
This Declaration shall continue in full force for a term of fifty
(50) years from the date of Recordation hereof, after which the
term shall be automatically extended for successive periods of ten
(10) years, unless a Declaration of Termination satisfying the
requirements of an amendment to this Declaration as set forth in
Section 12.2 is Recorded. There shall be no severance by sale,
conveyance, encumbrance or hypothecation of an interest in any Unit
from the concomitant Membership in the Association, as long as this
Declaration shall continue in full force and effect.
11.2. Termination and Amendment.
(a) Notice of the subject matter of a proposed amendment
to this Declaration in reasonably detailed form shall be
included in the notice of any meeting or election of the
Association at which a proposed amendment is to be considered.
The resolution shall be adopted by the vote, in person or by
proxy, or written consent of Members representing not less
than (i) sixty-seven percent (67%) of the voting power of each
Class of Members of the Association, and (ii) sixty-seven
percent (67%) of the voting power of the Association residing
in Members other than Declarant; provided that the specified
percentage of the voting power of the Association necessary to
amend a specified Section or provision of this Declaration
shall not be less than the percentage of affirmative votes
prescribed for action to be taken under that Section or
provision.
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(b) In addition to the required notice and consent of
Members and Declarant provided above, the Beneficiaries of
fifty-one percent (51%) of the first Mortgages on all the Lots
in the Project who have requested the Association to notify
them of proposed action requiring the consent of a specified
percentage of first Mortgagees must approve any amendment to
this Declaration which is of a material nature, as follows:
(1) Any amendment which affects or purports to
affect the validity or priority of Mortgages or the
rights or protection granted to Beneficiaries, insurers
or guarantors of first Mortgages as provided in Articles
V, IX, X, XI, and XII hereof.
(2) Any amendment which would necessitate a
Mortgagee after it has acquired a Lot through
foreclosure, to pay more than its proportionate share of
any unpaid assessment or assessments accruing after such
foreclosure.
(3) Any amendment which would or could result in a
Mortgage being canceled by forfeiture, or in a Lot not
being separately assessed for tax purposes.
(4) Any amendment relating to the insurance
provisions as set out in Article IX hereof, or to the
application of insurance proceeds as set out in Article
X hereof, or to the disposition of any money received in
any taking under condemnation proceedings.
(5) Any amendment which would or could result in
partition or subdivision of a Lot in any manner
inconsistent with the provisions of this Declaration.
(6) Any amendment which would subject any Owner to
a right of first refusal or other such restriction, if
such Lot is proposed to be sold, transferred, or
otherwise conveyed.
(7) Any amendment concerning:
(A) Voting rights;
(B) Rights to use the Association Property;
(C) Reserves and responsibility for
maintenance, repair and replacement of the
Association Property;
41
(D) Boundaries of any Lots;
(E) Owners' interests in the Association
Property;
(F) Convertibility of Association Property
into Lots or Lots into Association Property;
(G) Leasing of Lots;
(H) Establishment of self-management by the
Association where professional management has been
required by any Beneficiary, insurer or guarantor
of a first Mortgage;
(I) Annexation or deannexation of real
property to or from the Property; or
(J) Assessments, assessment liens, or the
subordination of such liens.
(c) Termination of this Declaration shall require
approval by the Members as provided in subsection (a) of this
Section 12.2. No such termination shall be effective unless it
is also approved in advance either by fifty-one percent (51%)
of the Beneficiaries of the first Mortgages on all of the Lots
in the Property (if said termination is proposed by reason of
the substantial destruction or condemnation of the Property)
or by sixty-seven percent (67%) of such Beneficiaries (if said
termination is for reasons other than such substantial
destruction or condemnation).
(d) Each Beneficiary of a first Mortgage on a Lot in the
Property which receives proper written notice of a proposed
amendment or termination of this Declaration by certified or
registered mail with a return receipt requested shall be
deemed to have approved the amendment or termination if the
Beneficiary fails to submit a response to the notice within
thirty (30) days after the Beneficiary receives the notice.
(e) A copy of each amendment shall be certified by at
least two (2) officers of the Association, and the amendment
shall be effective when a Certificate of Amendment is
Recorded. The Certificate, signed and sworn to by two (2)
officers of the Association that the requisite number of
Owners and mortgagees have either voted for or consented in
writing to any amendment adopted as provided above, when
Recorded, shall be conclusive evidence of that fact. The
42
Association shall maintain in its files the record of all such
votes or written consents for a period of at least four (4)
years. The certificate reflecting any termination or amendment
which requires the written consent of any of the Beneficiaries
of first Mortgages shall include a certification that the
requisite approval of such first Mortgagees has been obtained.
(f) Notwithstanding any other provisions of this Section
11.2, at any time prior to the first Close of Escrow for the
sale of a Lot within the Property, Declarant may unilaterally
amend or terminate this Declaration by Recording a written
instrument which effects the amendment or termination and is
signed and acknowledged by Declarant.
(g) Notwithstanding any other provisions of this Section
11.2, for so long as Declarant owns any portion of the
Property, Declarant may unilaterally amend this Declaration by
Recording a written instrument signed by Declaration in order
to conform this Declaration to the requirements of DRE, FNMA,
GNMA or FHLMC then in effect.
11.3. Protection of Declarant.
Until the fifth (5th) anniversary of the first Close of Escrow for
the sale of a Lot in the Property, The prior written approval of
Declarant, as developer of the Property, will be required before
any amendment which would impair or diminish the rights of
Declarant to complete the Property or sell or lease Lots therein in
accordance with this Declaration shall become effective.
Notwithstanding any other provisions of the Restrictions, until
such time as Declarant no longer owns any Lots in the Property, the
following actions, before being undertaken by the Association,
shall first be approved in writing by Declarant:
(a) Any amendment or action requiring the approval of
first Mortgagees pursuant to this Declaration, including
without limitation all amendments and action specified in
Sections 12.2;
(b) The levy of a Capital Improvement Assessment for the
construction of new facilities not constructed on the
Association Property by Declarant; or
(c) Subject to Section 4.4 regarding limitations on
Annual Assessment increases, any significant reduction of
Association maintenance or other services.
43
ARTICLE XII
12. Enforcement of Certain Bonded Obligations.
12.1. Consideration by Board of Directors.
If (1) the Association Property Improvements are not completed
prior to the issuance of a Final Subdivision Public Report by the
ORE for the sale of Lots in the Property, and (2) the Association
is obligee under a bond or other arrangement ("Bond") required by
the DRE to secure performance of the commitment of Declarant to
complete such Improvements, the Board shall consider and vote on
the question of action by the Association to enforce the
obligations under the Bond, with respect to any such Improvement
for which a Notice of Completion has not been filed within sixty
(60) days after the completion date specified for that Improvement
in the Planned Construction Statement appended to the Bond. If the
Association has given an extension in writing for the completion of
any Association Property Improvement, the Board shall be directed
to consider and vote on the aforesaid question if a Notice of
Completion has not been filed, within thirty (30) days after the
expiration of the extension.
12.2. Consideration by the Members.
A special meeting of Members, for the purpose of voting to override
a decision by the Board not to initiate action to enforce the
obligations under the Bond or on the failure of the Board to
consider and vote on the question, shall be held no fewer than
thirty-five (35) days nor more than forty-five (45) days after
receipt by the Board of a petition for such a meeting signed by
Members representing five percent (5%) of the total voting power of
the Association. A vote of a majority of the voting power of the
Association residing in Members other than 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 this decision by initiating and pursuing appropriate
action in the name of the Association.
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ARTICLE XIII
13. General Provisions.
13.1. Enforcement of Restrictions.
(a) Violations Identified by the Association. If the
Board determines that there is a violation of any provision of
the Restrictions, or that an Improvement which is the
maintenance responsibility of an Owner is in need of
installation, maintenance, repair, restoration or painting,
then the Board shall give written notice to the responsible
Owner identifying (i) the condition or violation complained
of, and (ii) the length of time the Owner has to remedy the
violation including, if applicable, the length of time the
Owner has to submit plans to the Board of Directors and the
length of time the Owner has to complete the work proposed in
the plans submitted to the Board of Directors. The Owner
shall be permitted a minimum of forty-five (45) days to remedy
a violation as noted herein.
If an Owner does not perform such corrective action as is
required by the Board within the allotted time, the Board,
after Notice and Hearing, may undertake to remedy such
condition or violation complained of, and the cost thereof
shall be charged to the Owner as a Special Assessment. Such
Special Assessment shall be subject to enforcement and
collection by the Board in accordance with the procedures
provided for in this Declaration.
If the violation involves nonpayment of any type of
Assessment, then the Board shall be entitled to collect such
delinquent Assessment pursuant to the procedures set forth in
Article V.
(b) Violations Identified by an Owner. In the event that
an Owner alleges that another Owner, his family, guests or
tenants, is violating the Restrictions (other than nonpayment
of any type of Assessment), the Owner must first submit the
matter to the Board pursuant to the Notice and Hearing
procedure established in Article VII of the Bylaws before the
complaining Owner may resort to a court of law for relief with
respect to the alleged violation.
45
(c) Legal Proceedings. Failure to comply with any of the
terms of the Restrictions by an Owner, his family, guests,
employees, invitees or tenants, shall be grounds for relief
which may include, without limitation, an action to recover
sums due for damages, injunctive relief, foreclosure of any
lien, or any combination thereof; provided, however, that the
procedures established in Sections 13.1 (a) and (b) above must
first be followed, if they are applicable.
(d) Limitation on Expenditures. The Association shall not
incur litigation expenses, including without limitation
attorneys' fees, where the Association initiates legal
proceedings or is joined as a plaintiff in legal proceedings
without the approval of a majority of the voting power of the
Association, excluding the voting power of any Owner who would
be a defendant in such proceedings. Such approval shall not be
necessary if the legal proceedings are initiated to (i)
enforce the use restrictions contained in Article VII hereof
or (ii) collect any unpaid assessments levied pursuant to this
Declaration.
(e) Schedule of Fines. The Board may adopt a schedule of
reasonable fines or penalties which, in its reasonable
discretion, it may assess against an Owner for the failure of
such Owner, or of a resident of or visitor to such Owner's
Lot, to comply with any provisions of the Restrictions. Such
fines or penalties may only be assessed by the Board after
Notice and Hearing.
(f) No Waiver. Failure to enforce any provision hereof
shall not constitute a waiver of the right to enforce that
provision, or any other provision hereof.
(g) Right to Enforce. The Board, any Owner (not at the
time in default hereunder) , the Code Enforcement Officer of
the City of Carlsbad, or Declarant (so long as Declarant is an
Owner) shall be entitled to enforce the Restrictions as
described in this Article. Each Owner shall have a right of
action against the Association for the Association's failure
to comply with the Restrictions. Each remedy provided for in
this Declaration shall be cumulative and not exclusive or
exhaustive.
(h) Attorneys Fees. Any judgment rendered in any action
or proceeding pursuant to this Declaration shall include a sum
for reasonable attorneys' fees in such amount as the court may
deem reasonable, in favor of the prevailing party, as well as
the amount of any delinquent payment, interest thereon, costs
of collection and costs of court.
46
13.2. Severabilitv.
The provisions hereof shall be deemed independent and severable,
and a determination of invalidity or partial invalidity or
unenforceability of any one provision or portion hereof by a court
of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
13.3. Interpretation.
The provisions of this Declaration shall be liberally construed to
effectuate its purpose of creating a uniform plan for the creation
and operation of a residential planned development and for the
maintenance of Association Property, and any violation of this
Declaration shall be deemed to be a nuisance. The Article and
Section headings have been inserted for convenience only, and shall
not be considered or referred to in resolving questions of
interpretation or construction. As used herein, the singular shall
include the plural and the plural the singular; and the masculine,
feminine and neuter shall each include the other, unless the
context dictates otherwise.
13.4. Mergers or Consolidations.
Upon a merger or consolidation of the Association with another
association, its properties, rights and obligations may, by
operation of law, be transferred to another surviving or
consolidated association or, alternatively, the properties, rights
and obligations of another association may, by operation of law, be
added to the properties, rights and obligations of the Association
as a surviving corporation pursuant to a merger. The surviving or
consolidated association may administer and enforce the covenants,
conditions and restrictions established by this Declaration
governing the Property, together with the covenants and
restrictions established upon any other property, as one plan.
13.5. No Public Right or Dedication.
Nothing contained in this Declaration shall be deemed to be a gift
or dedication of all or any part of the Property to the public, or
for any public use.
13.6. Nonliability and Indemnification.
(a) General Limitation. Except as specifically provided
in the Restrictions or as required by law, no right, power, or
responsibility conferred on the Board, the Articles or the
Bylaws shall be construed as a duty, obligation or disability
charged upon the Board, any member of the Board, or any other
officer, employee or agent of the Association. No such Person
shall be liable to any party (other than the Association or a
47
party claiming in the name of the Association) for injuries or
damage resulting from such Person's acts or omissions within
what such Person reasonably believed to be the scope of his
Association duties ("Official Acts"), except to the extent
that such injuries or damage result from such Person's willful
or malicious misconduct. No such Person shall be liable to the
Association (or to any party claiming in the name of the
Association) for injuries or damage resulting from such
Person's Official Acts, except to the extent that such
injuries or damage result from such Person's negligence or
willful or malicious misconduct.
(b) Damages Limitation. In accordance with Civil Code
Section 1365.7, a volunteer Board member or volunteer
Association officer, as defined in subdivision (a) of Civil
Code Section 1351, which manages a common interest
development which is exclusively residential, shall not be
personally liable in excess of the coverage of insurance
specified below to any person who suffers injury, including
without limitation bodily injury, emotional distress, wrongful
death or property damage or loss as a result of the tortious
act or omission of the volunteer officer or Board member if
all of the following conditions are satisfied:
(1) The Board member or officer is a tenant of a Lot
or an Owner of no more than two (2) Lots;
(2) The act or omission was performed within the
scope of the Board member's or officer's Association
duties;
(3) The act or omission was performed in good faith;
(4) The act or omission was not willful, wanton or
grossly negligent; and
(5) The Association maintained and had in effect at
the time the act or omission occurred and at the time a
claim was made one (1) or more policies of insurance
which shall include coverage for (A) general liability of
the Association and (B) individual liability of officers
and Board members for negligent acts or omissions in that
capacity; provided, that both types of coverage are in
the amount of at least five hundred thousand dollars
($500,000.00) if the common interest development consists
of 100 or fewer separate interests or at least one
million dollars ($1,000,000.00) if the common interest
development consists of more than 100 separate interests.
48
A Board member or Association officer who at the time of
the act or omission was the Declarant or received direct or
indirect compensation as an employee from Declarant or from a
financial institution that purchased a Lot at a judicial or
nonjudicial foreclosure of a Mortgage is not a volunteer for
purposes of this Section 13.6(b). The payment of actual
expenses incurred by a Board member or Association officer
does not affect the member's or officer's status as a
volunteer for purposes of this Section 13.6(b).
(c) Indemnification. The Association shall pay all
expenses incurred by, and satisfy any judgment or fine levied
against, any person as a result of any action or threatened
action against such person to impose liability on such person
for his Official Acts, provided that:
(1) The Board determines that such person acted in
good faith and in a manner such person reasonably
believed to be in the best interests of the Association;
(2) In the case of a criminal proceeding, the Board
determines that such person had no reasonable cause to
believe his conduct was unlawful; and
(3) In the case of an action or threatened action by or
in the right of the Association, the Board determines that
such person acted with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position
would use under similar circumstances.
Any determination of the Board required under this
Section 13.6 (c) must be approved by a majority vote of a
quorum consisting of Directors who are not parties to the
action or threatened action giving rise to the
indemnification. If the Board fails or refuses to make any
such determination, such determination may be made by the vote
or written consent of a majority of a quorum of the Members of
the Association voting at a meeting of the Association called
for such purpose, provided that the person to be indemnified
shall not be entitled to vote. Payments made hereunder shall
include amounts paid and expenses incurred in settling any
such action or threatened action. This Section 14.7(c) shall
be construed to authorize payments and indemnification to the
fullest extent now or hereafter permitted by applicable law.
The entitlement to indemnification hereunder shall inure to
the benefit of the estate, executor, administrator, heirs,
legatees, or devisees of any person entitled to such
indemnification.
49
13.7. Notices.
Except as otherwise provided in this Declaration, notice to be
given to an Owner shall be in writing and may be delivered
personally to the Owner. Personal delivery of such notice to one or
more co-owners of a Lot or to any general partner of a partnership
owning a Lot shall be deemed delivery to all co-owners or to the
partnership, as the case may be. Personal delivery of such notice
to any officer or agent for the service of process on a corporation
shall be deemed delivery to the corporation. In lieu of the
foregoing, such notice may be delivered by regular United States
mail, postage prepaid, addressed to the Owner at the most recent
address furnished by such Owner to the Association or, if no such
address shall have been furnished, to the street address of such
Owner's Lot. Such notice shall be deemed delivered three (3)
business days after the time of such mailing, except for notice of
a meeting of Members or of the Board of Directors in which case the
notice provisions of the Bylaws shall control. Any notice to be
given to the Association may be delivered personally to any member
of the Board, or sent by United States mail, postage prepaid,
addressed to the Association at such address as shall be fixed from
time to time and circulated to all Owners.
13.8. Priorities and Inconsistencies.
If there are conflicts or inconsistencies between this Declaration
and either the Articles of Incorporation or the Bylaws of the
Association, the terms and provisions of this Declaration shall
prevail.
13.9. Constructive Notice and Acceptance.
Every person who owns, occupies or acquires any right, title,
estate or interest in or to any Lot or other portion of the
Property does hereby consent and agree, and shall be conclusively
deemed to have consented and agreed, to every limitation,
restriction, easement, reservation, condition and covenant
contained herein, whether or not any reference to these
restrictions is contained in the instrument by which such person
acquired an interest in the Property, or any portion thereof.
13.10. Declarant's Right to Cure Alleged Defects.
It is Declarant's intent that the Association Property, the Lots,
and the Improvements be built in compliance with all applicable
building codes and ordinances and that they be of a quality that is
consistent with good construction practices for production housing
of this type. Nevertheless, due to the complex nature of
construction and the subjectivity involved in evaluating such
quality, disputes may arise as to whether a defect in construction
exists and Declarant's responsibility therefor. It is Declarant's
intent to resolve all disputes and claims regarding "Alleged
50
Defects" (as defined below) in any portion of the Association
Property, any Lot, and any Improvements, amicably, and without the
necessity of time consuming and costly litigation. Accordingly, the
Association, and all Owners shall be bound by the following claim
resolution procedure:
(a) Declarant's Right to Cure. If the Association or any
Owner or Owners (collectively "Claimant") claim, contend or
allege that any portion of the Association Property, any Lot,
and/or any Improvements are defective or that Declarant or its
agents, consultants, contractors or subcontractors were
negligent in the planning, design, engineering, grading or
construction thereof (collectively, an "Alleged Defect"),
Declarant is hereby granted the irrevocable right to inspect,
repair and/or replace such Alleged Defect as set forth herein.
(b) Notice to Declarant. In the event that a Claimant
discovers any Alleged Defect, Claimant shall immediately,
after discovery, notify Declarant, in writing, at PACIFIC VIEW
COMMUNITIES, LLC., P.O. Box 2198, Carlsbad, CA 92018 or such
other address at which Declarant maintains its principal place *
of business, of the specific nature of such Alleged Defects
("Notice of Alleged Defect").
(c) Ricrht to Enter, Inspect. Repair, and/or Replace.
Within a reasonable time after the receipt by Declarant of a
Notice of Alleged Defect or the independent discovery of any
Alleged Defect by Declarant, Declarant shall have the
irrevocable right, upon reasonable notice to Claimant and
during normal business hours, to enter onto or into, as
applicable, the Association Property, any Lot, or any
Improvements for the purposes of inspecting and, if deemed
necessary by Declarant, repairing and/or replacing such
Alleged Defect. In conducting such inspection, repairs and/or
replacement Declarant shall be entitled to take any actions as
it shall deem reasonable and necessary under the
circumstances.
(d) No Additional Obligations. Nothing set forth in this
Section 13.10 shall be construed to impose any obligation on
Declarant to inspect, repair or replace any items or Alleged
Defect for which Declarant is not otherwise obligated under
applicable state and federal law or any limited warranty
provided by Declarant in connection with the sale of the Lots
and the Residences constructed thereon. Notwithstanding any
other provision of this Declaration, this Section 14.11 shall
not be amended without the prior written approval of
Declarant.
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13.11. Arbitration of Alleged Defect Claims.
(a) In the event the Claimant, as defined in Section
13.11, and the Declarant are unable to reach an agreement with
regard to the repair and/or replacement of an Alleged Defect, the
Claimant must agree to submit the matter to arbitration.
(b) In accordance with the requirements of the
California Department of Real Estate, the arbitration will be
conducted in accordance with the following rules and procedures:
(1) For the Declarant to advance the fees necessary
to initiate the arbitration, with the costs and fees, including
ongoing costs and fees to be paid as agreed by the parties. If the
Declarant and the Claimant can't agree to the payment of the
ongoing costs and fees, then as determined by the arbitrator (s),
with the overall costs and fees of the arbitration to ultimately be
borne as determined by the arbitrator;
(2) For administration of the arbitration by a
neutral and impartial person(s);
(3) For the appointment of a neutral and impartial
individual (s) to serve as arbitrator (s), with the arbitrator (s) to
be appointed within a specified period of time, which in no event
shall be more than sixty (60) days from the administrator's receipt
of a written request from a party to arbitrate the claim or
dispute. In selecting the arbitrator, the provisions of Section
1297.121 of the Code of Civil Procedure shall apply. An arbitrator
may be challenged for any of the grounds listed therein;
(4) For the venue of the arbitration to be in the
county where the subdivision is located unless the parties agree to
some other location;
(5) For the prompt and timely commencement of the
arbitration in accordance with (i) the rules of the arbitration, or
if the rules do not specify a date by which the arbitration must
commence, then (ii) a date as agreed to by the parties, and if they
cannot agree, (iii) a date determined by the arbitrator(s);
(6) For the arbitration to be conducted in
accordance with the rules and procedures which are reasonable and
fair to the parties;
(7) For the prompt and timely conclusion of the
arbitration;
52
(8) For the arbitrators to be authorized to provide
all recognized remedies available in law or equity, other than
punitive damages, for any cause of action that is the basis of the
arbitration.
(c) The arbitrator shall conduct the arbitration in
accordance with the rules and procedures that are equivalent in
substance to the commercial arbitration rules of the American
Arbitration Association, or other similarly recognized regional or
statewide entity which regularly provides arbitration services,
such as JAMS/ENDISPUTE, provided the agreed rules and procedures
for the arbitration contain provisions substantially complying with
paragraph (b), subparagraphs (1)- (8), inclusive, of this Section
13.12.
(d) Since the Declarant has not submitted a copy of the
rules to be applicable to an arbitration subject to the
requirements of paragraph (b) herein as part of Declarant's
application for a public report, in accordance with the
requirements of the California Department of Real Estate, Claimant
and the Declarant shall therefore select an arbitrator who elects
to conduct the arbitration in accordance with the rules and
procedures that are equivalent in substance to the commercial
arbitration rules of the American Arbitration Association, or other
similarly recognized regional or statewide entity which regularly
provides arbitration services, such as JAMS/ENDISPUTE.
(e) An arbitration conducted pursuant to this Section
13.12 shall be subject to the reference requirements set forth in
Code of Civil Procedure Sections 638 through 645.1, inclusive.
13.12. No Representations or Warranties.
No representations or warranties of any kind, express or implied,
have been given or made by Declarant, or its agents or employees in
connection with the Property, or any portion thereof, its physical
condition, zoning, compliance with applicable laws, fitness for
intended use, or in connection with the subdivision, sale,
operation, maintenance, cost of maintenance, taxes or regulation
thereof as a planned development, except as specifically and
expressly set forth in this Declaration and except as may be filed
by Declarant from time to time with the DRE.
53
ARTICLE XIV
14. Annual Inspection.
14.1. Duty to Inspect.
It shall be the duty of the Board to have the Association Property
inspected at least once each year.
14.2. Purpose of Inspection.
The purpose of the inspection shall be to (i) determine whether the
Association Property is being maintained adequately in accordance
with the standards of maintenance established in Section 2.7
hereof, (ii) identify the condition of the Association Property and
any Improvements thereon including the existence of any hazards or
defects, and the need for performing additional maintenance,
refurbishment, replacement, or repair, and (iii) recommend
preventive actions which may be taken to reduce potential
maintenance costs to be incurred in the future.
14.3. Scope of Inspection.
All of the Association Property and Improvements thereon including,
but not limited to, the exterior and structural integrity of any
structures, if applicable, gates, walls, walkways, irrigation
systems, landscaping, and drainage devices shall be inspected.
14.4. Experts and Consultants.
The Board may employ such experts and consultants as are necessary
to perform the inspection and make the report required by this
Article.
14.5. Report to Owners.
The Board shall have a report of the results of the inspection of
the Association Property required by this Article prepared. The
report shall be furnished to Owners within the time set forth for
furnishing Owners with the Budget. The report shall include at
least the following:
(a) a description of the condition of the Association
Property, including a list of items inspected, and the status
of maintenance, repair and need for replacement of all such
items;
(b) a description of all maintenance, repair and
replacement planned for the ensuing fiscal year included in
the Budget;
(c) if any maintenance, repair or replacement is to be
deferred, the reason for such deferral;
54
(d) a summary of all reports of inspections performed by
any expert or consultant employed by the Board to perform
inspections;
(e) a report of the status of compliance with the
maintenance, replacement and repair needs set forth in the
inspection report for preceding years; and
(f) such other matters as the Board deems appropriate.
ARTICLE XV
15. Alternative Dispute Resolution.
15.1. Compliance with Civil Code Section 1354.
Each Owner of a Lot and the Association shall comply with the
Alternative Dispute Resolution requirements set forth in Civil Code
Section 1354 prior to filing of a civil action. In accordance with
Civil Code Section 1354 (i) members shall be provided, either at
the time the pro forma budget required by Civil Code Section 1365
is distributed or in the manner specified in Section 5016 of the
Corporations Code, with a summary of the provisions of Civil Code
Section 1354 which includes the following language: "Failure by any
member of the Association to comply with the prefiling requirements
of Section 1354 of the Civil Code may result in the loss of your
rights to sue the Association or another member of the Association
regarding enforcement of the governing documents."
15.2. Authority of Board of Directors.
The Board of Directors of the Association is hereby authorized, but
not required, to perform any act reasonably necessary to resolve
any civil claim or action through alternative dispute resolution
proceedings such as mediation, binding arbitration, or non-binding
arbitration proceedings. The Board of Directors of the Association
is further hereby authorized, but not required to, perform the
following acts:
(a) Providing, or in good faith attempting to provide,
one hundred twenty (120) days advance notice of the Board of
Director's intent to initiate the prosecution of any civil action
and of the nature and basis of the claim to every member of the
Association and every entity or person who is a prospective party
to the civil action, provided that notice can be given (i) more
than one hundred twenty (120) days prior to the expiration of any
pertinent statute of limitations, and (b) without prejudice to the
Association's right to enforce the governing documents, and further
provided that no such notice need be given prior to filing of an
action in small claims court or an action solely to enforce
assessment obligations.
55
(b) Prior to initiating the prosecution of a civil
action solely for declaratory relief or injunctive relief to
enforce the governing documents, or for declaratory relief or
injunctive relief to enforce the governing documents in conjunction
with a claim for monetary damages not in excess of five thousand
dollars ($5,000.00), to endeavor to submit the matter to
alternative dispute resolution in compliance with the provisions of
Section 1354 (b) of the Civil Code.
(c) Immediately after initiating the prosecution or
defense of any civil action, making a reasonable effort, in good
faith, to meet and confer with every person who is a party
concerning appropriate processes for resolving the civil action,
including available alternative dispute resolution proceedings;
concerning appropriate processes for avoiding or reducing costs or
losses to the parties associated with the action; providing the
opportunity to cure any alleged defect in common areas or
facilities which is the basis for the action; and providing the
scope of discovery, if any, to be conducted prior to the inception
of any alternative dispute resolution procedure.
(d) Considering diversion of the prosecution or defense
of any civil action to alternative dispute resolution proceedings
such as mediation, non-binding arbitration, or binding arbitration.
(e) Agreeing to participate and participating fully and
in good faith in the resolution of any civil action through any
alternative dispute resolution proceedings, including but not
limited to mediation, non-binding arbitration, and binding
arbitration, and paying costs reasonably incurred by the
Association on account of those alternative dispute resolution
proceedings.
In accordance with Section 2792.21 (d) of Title 10, California Code
of Regulations, no portion of the governing instruments shall
require the Board of Directors to do any of the following:
(a) As a prerequisite to initiating any civil action, to
conduct inspections, maintain inspection records, exhaust
applicable casualty insurance coverage maintained by the
Association, provide an opportunity to cure, meet with members, or
obtain the consent of the members.
(b) Except in compliance with the provisions of Section
1354 (b) of the Civil Code, to submit civil claims of any kind to
binding or non-binding alternative dispute resolution procedures.
56
ARTICLE XVI
16. Organizational Documentation.
16.1. Documentation to be provided by Declarant.
In accordance with Section 2792.23 of Title 10, California Code of
Regulations, the Declarant will, not later than ninety (90) days
after the first Close of Escrow, deliver a copy of the following
documents to the Board of Directors of the Association at the
office of the Association or at such other place as the Board of
Directors shall prescribe. The obligation to deliver the following
documents shall apply to any document obtained by the Declarant no
matter when obtained, provided however, such obligation shall
terminate upon the earlier of (1) conveyance of the last Lot
covered by a subdivision public report or (2) three (3) years after
the expiration of the most recent public report on the Project.
The following documents are:
(a) The recorded subdivision map or maps for the
Project.
(b) The deeds and easements executed by the Declarant
conveying the Association Property or other interest to the
Association, to the extent applicable.
(c) The recorded Declaration of Covenants, Conditions,
and Restrictions for the Project, including all amendments and
annexations thereto.
(d) The Association's filed Articles of Incorporation,
if any, and all amendments thereto.
(e) The Association's Bylaws and all amendments thereto.
(f) All architectural guidelines and all other rules
regulating the use of the Owner's interest in the Property or use
of the Association Property which have been promulgated by the
Association.
(g) The plans approved by the local agency or county
where the project is located for the construction or improvement of
facilities that the Association is obligated to maintain or repair;
provided, however, that the plans need not be as-built plans and
that the plans may bear appropriate restrictions on their
commercial exploitation or use and may contain appropriate
disclaimers regarding their accuracy.
57
(h) All Notice of Completion Certificates issued for
Association Property improvements (other than residential
structures).
(i) Any bond or security device in which the Association
is the beneficiary.
(j) Any written warranty being transferred to the
Association for Association Property equipment, fixtures, or
improvements.
(k) Any insurance policy procured for the benefit of the
Association, its governing board or the Association Property.
(1) Any lease or contract to which the Association is a
party.
(m) The membership register, including mailing addresses
and telephone numbers, books of account and minutes of meetings of
the members, of the Board of Directors and of committees of the
Board of Directors.
(n) Any instrument referred to in Business and
Professions Code Section 11018.6 (d) but not described above which
establishes or defines the common, mutual or reciprocal rights or
responsibilities of members of the Association.
16.2. Documentation to be provided by Declarant for
Phases.
Also in accordance with Section 2792.23 of Title 10 California Code
of Regulations, the Declarant will, not later than ninety (90) days
after the first Close of Escrow after annexation of additional
phases to the Project, deliver copies of those documents described
in Section 20.01 which are applicable to that phase, to the Board
of Directors of the Association at the office of the Association or
at such other place as the Board of Directors shall prescribe. The
obligation to deliver the documents described in Section 20.01
shall apply to any document obtained by the Declarant no matter
when obtained, provided, however, such obligation shall terminate
upon the earlier of (1) conveyance of the last Lot covered by a
subdivision public report or (2) three (3) years after the
expiration of the most recent public report on the Project.
58
ARTICLE XVII
17. Annexation of Additional Property.
17.1. Additions by Declarant.
Declarant or its successors or assigns shall have the right from
time to time to add the Annexable Territory, or any portion or
portions thereof, to the Properties and to bring such added
territory within the general plan and scheme of this Declaration
without the approval of the Association, its Board of Directors, or
Members; provided that:
(a) Declarant shall submit proof satisfactory to the ORE
that no proposed annexation will result in an overburdening of
common facilities; and
(b) Declarant shall submit proof satisfactory to the ORE
that no proposed annexation will cause a substantial increase in
assessments against existing Owners which was not disclosed in
subdivision public reports under which pre-existing owners
purchased their interests; and
(c) Declarant identifies the land proposed to be annexed
and the total number of residential units then contemplated by the
Declarant for the overall subdivision development; and
(d) Declarant has provided a written commitment to pay
to the Association, concurrently with the closing of the escrow for
the first sale of a subdivision interest in an annexed phase,
appropriate amounts for reserves for replacement of deferred
maintenance of common area improvements in the annexed phase
necessitated by or arising out of the use and occupancy of
residential units under a rental program conducted by the Declarant
which has been in effect for a period of at least one (1) year as
of the date of closing of the escrow for the first sale of a
residential Lot in the annexed phase.
17.2. Other Additions.
In addition to the provisions for annexation specified in Section
17.1 above, additional real property may be annexed to the
Properties and brought within the general plan and scheme of this
Declaration upon the approval by vote or written consent of Members
entitled to exercise no less than two-thirds (2/3rds) of the voting
power to the Association.
59
17.3. Rights of Added Territory.
Subject to the provisions of Section 17.4, upon the recording of a
Notice of Addition of Territory containing the provisions set forth
in this Section, all provisions contained in this Declaration shall
apply to the real property described in such Notice of Addition of
Territory (the "added territory") in the same manner as if it were
originally covered by this Declaration. Thereafter, the rights,
powers, and responsibilities of the parties to this Declaration
with respect to the added territory shall be the same as with
respect to the property originally covered hereby, and the rights,
powers, and responsibilities of the Owners, lessees and occupants
of Lots within the added territory, as well as within the property
originally subject to this Declaration, shall be the same as if the
added territory were originally covered by this Declaration. From
and after the first day of the first month following the first
Close of Escrow for the sale of a Lot in the added territory, the
Owners of Lots located in the added territory shall share in the
payment of assessments to the Association to meet Common Expenses
of the entire Properties as provided in Section 3.7 hereof. Voting
rights attributable to the Lots in the added territory shall not
vest until Annual Assessments have commenced as to such Lots.
17.4. Notice of Addition of Territory.
The additions authorized under Sections 17.1 and 17.2 shall be made
by recording a Notice of Addition of Territory, or other similar
instrument (which notice or instrument may contain the Supplemental
Declaration, if any, affecting each such Phase of Development),
with respect to the added territory ("Notice of Addition") which
shall extend the general plan and scheme of this Declaration to
such added territory. The Notice of Addition for any addition
under Section 17.1 shall be signed by the Declarant. The Notice of
Addition for any addition under Section 17.2 shall be signed by at
least two (2) officers of the Association to certify that the
requisite approval of the Members of the Association under Section
17.2 was obtained. The recordation of said Notice of Addition
shall constitute and effectuate the annexation of the added
territory described therein, and thereupon said added territory
shall become and constitute a part of the Properties, become
subject to this Declaration and encompassed within the
general plan and scheme of covenants, conditions, restrictions,
reservation of easements and equitable servitudes contained herein,
and become subject to the functions, powers and jurisdiction of the
Association; and the Owners of Lots in the added territory shall
automatically become members of the Association. Such Notice of
Addition may contain a Supplemental Declaration with such additions
and modifications of the covenants, conditions, restrictions of
easements and equitable servitudes contained in this Declaration as
may be necessary to reflect the different character, if any, of the
60
added territory, or as Declarant may deem appropriate in the
development of the of the added territory, and as are not
inconsistent with the general plan and scheme of this Declaration.
In no event, however, shall such Notice of Addition or Supplemental
Declaration revoke, modify or add to the covenants, conditions,
restrictions, reservation of easements, or equitable servitudes
established by this Declaration as the same shall pertain to the
real property originally covered by this Declaration. Concurrently
with the first Close of Escrow for the sale of a Lot in any Phase
of Development annexed to the Properties in accordance herewith,
Declarant shall pay to the Association an appropriate amount (as
determined by the DRE) for reserves for replacement or deferred
maintenance of Association of Association Property in such Phase
necessitated by or arising out of the use and occupancy of the Lots
in such Phase under a rental program which was in effect for at
least one (1) year prior to such first Close of Escrow.
17.5. Deannexation.
Declarant may delete all or a portion of a Phase of Development
from coverage of this Declaration and the jurisdiction of the
Association, so long as Declarant is the owner of all of such Phase
of Development, and provided that (1) a Notice of Deletion of
Territory is Recorded in the same manner as the applicable Notice
of Addition was Recorded; (2) Declarant has not exercised any
Association vote with respect to any portion of such Phase of
Development; (3) assessments have not yet commenced with respect to
any portion of such Phase of Development; (4) Close of Escrow has
not occurred for the sale of any Lot in such Phase of Development,
(5) the Association has not made any expenditures or incurred any
obligations with respect to any portion of such Phase of
Development.
ARTICLE XVIII
18. Causes of Action in Tort.
18.1. Lawsuits Against the Association.
In accordance with Civil Code Section 1365.9, any cause of action
in tort against any person arising solely by reason of an ownership
interest in the Association Property of a Common Interest
Development shall be brought against the Association and not
against the individual owners of the Separate Interest, as defined
in Civil Code Section 1351 (1), provided that all of the following
insurance requirements are met:
61
(a) The Association maintained and had in effect at the
time the alleged act or omission occurred and at the time a claim
is made, one or more policies of insurance which include coverage
for (1) general liability of the Association and (2) individual
liability of officers and directors of the Association for
negligent acts or omissions of those person acting in their
official capacity as officers and directors. Both types of
coverage described in (1) and (2) herein shall be in the following
minimum amounts:
(i) At least two million dollars ($2,000.000.00) per
occurrence if the Common Interest Development consists of one
hundred (100) or fewer separate interests; or
(ii) At least three million dollars ($3,000,000.00) per
occurrence if the Common Interest Development consists of more than
one hundred (100) separate interests.
(b) The Association shall, upon issuance or renewal of
insurance, but no less than annually, notify its Members as to the
amount and type of insurance carried by the Association, and it
shall accompany this notification with statements to the effect
that the Association is or is not insured to the levels specified
by this Section 18.1, and that if not so insured, Owners may be
individually liable for the entire amount of a judgement, and if
the Association is insured to the levels specified in this Section
18.1, then Owners may be individually liable only for their
proportional share of assessments levied to pay the amount of any
judgment which exceeds the limits of the Association's insurance.
ARTICLE XIX
19. Documentation to be provided Prospective Purchaser.
19.1. Owner Requirements of Civil Code Section 1368.
In accordance with Civil Code Section 1368, the Owner of a Separate
Interest, other than an Owner subject to the requirements of
Section 11018.6 of the Business and Professions Code, shall, as
soon as practicable before transfer of title to the Separate
Interest or execution of a real property sales contract therefor,
as defined in Civil Code Section 2985, provide the following to the
prospective purchaser:
(1) a copy of the governing documents of the common
interest development.
62
(2) If there is a restriction in the Restrictions
limiting the occupancy, residency, or use of a separate interest on
the basis of age in a manner different from that provided in Civil
Code Section 51.3, a statement that the restriction is only
enforceable to the extent permitted by Civil Code Section 51.3 and
a statement specifying the applicable provision of Civil Code
Section 51.3.
(3) A copy of the most recent documents distributed
pursuant to Civil Code Section 1365.
(4) A true statement in writing from an authorized
representative of the Association as to the amount of the
Association's current regular and special assessments and fees, as
well as any assessments levied upon an Owner's interest in the
common interest development which are unpaid on the date of the
statement. The statement shall also include true information on
late charges, interest, and costs of collection which, as of the
statement, are or may be made a lien upon the Owner's interest in
a common interest development pursuant to Civil Code Section 1367.
(5) Any change in the Association's current regular and
special assessments and fees which have been approved by the
Association's Board of Directors, but have not become due and
payable as of the date disclosure is provided pursuant to this
Article.
19.2 Association Requirements of Civil Code Section
1368.
In accordance with Civil Code Section 1368, upon written request,
the Association shall, within ten (10) days of the mailing or
delivery of the request, provide the Owner of a Separate Interest
with a copy of the requested items specified in paragraphs 19.1
(1) , (2) , (3), and (4) . The Association may charge a fee for this
service, which shall not exceed the Association's reasonable cost
to prepare and reproduce the requested items. The Association
shall not impose or collect any assessment, penalty, or fee in
connection with a transfer of title or any other interest except
the Association's actual costs to change its records and that
authorized by this Section 19.2.
19.3. Failure to comply with Article XIX.
Any person or entity who willfully violates this Article XIX, in
accordance with Civil Code Section 1368, shall be liable to the
purchaser of a separate interest which is subject to Civil Code
Section 1368, for actual damages occasioned thereby and, in
addition, shall pay a civil penalty in an amount not to exceed five
hundred ($500.00). In an action to enforce this liability, the
prevailing party shall be awarded reasonable attorney's fees.
63
19.4 Validity of Transfer.
Nothing in this Article XIX affects the validity of title to real
property transferred in violation of this Article XIX.
19.5. Additional Owner Requirements.
In addition to this requirements of this section, an Owner
transferring title to a separate interest shall comply with
applicable requirements of Civil Code Sections 1133 and 1134.
ARTICLE XX
20. Civil Code Section 1375.
20.1. Review of Civil Code Section 1375.
Before the Association commences an action for damages against the
Declarant of the project, based upon a claim for defects in the
design or construction of the Project, the Board of Directors shall
review, with counsel, the procedure set forth in Civil Code Section
1375.
ARTICLE XXI
21. Requirements of the City of Carlsbad.
21.1. Conditions of Project Approval. In accordance with
items 23, 24, 31, 37, and 41 of the conditions of approval of the
Project, as defined herein, by the City of Carlsbad, the following
language is included within this Declaration.
21.2. Failure of the Association to Maintain Association
Property and Easements.
In the event the Association fails to maintain the Association
Property and/or the Association's Easements, as required by Article
III, Section 1, 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 in the Project,
setting forth, with particularity, the maintenance which the City
finds to be required and requesting the same be carried out by the
Association within a period of thirty (30) days from the date of
such notice. In the event that the Association fails to carry out
such maintenance of the Association Property and/or Association
Easements 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 herein.
64
21.3. Private Driveways. All Private Driveways located
on a Lot shall be kept clear of parked vehicles at all times.
21.4. Special Assessments Levied by the City.
In the event the City has performed the necessary maintenance to
either the Association Property and/or Association Easements, the
City shall submit a written invoice to the Association for all
costs incurred by the City to perform such maintenance of the
Association Property and/or Association Easements. The City shall
provide a copy of such invoice to each Owner in the Project,
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 in the Project pursuant to this
Section. Said invoice shall be due and payable by the Association
within twenty (20) days of receipt by the Association. If the
Association shall fail to pay such invoice in full within the \)^
period specified, payment shall be deemed delinquent and shall be fi&r
subject to a late charge in an amount equal to six percent (6%) of -, * (J
the amount of the invoice. Thereafter, the City may pursue'^''
collection from the Association by means of any remedies available
at 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 prorata share of the
invoice, plus the late charge. Such special assessment shall
constitute a charge on the land and shall be a continuing lien upon
each Lot against which the special assessment is levied. 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 legal actions and/or pursue lien
foreclosure procedures against any Owner and his/her Lot for
purposes of collecting such special assessment in accordance with
the procedures set forth in Article V of this Declaration.
21.5. Sight Distance Corridor. 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 with
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.
21.6. Maintenance of Lot Ten (10). As a condition of
approval of the Project by the City, each Owner of a Lot subject to
this Declaration is hereby advised that the Declarant has placed a
landscape easement over all of Lot Ten (10) , as more fully
described in Preamble, paragraph A of this Declaration. The
Association shall maintain Lot Ten (10) until such time as Lot Ten
(10) is needed for access purposes for the adjacent property,
65
described as , APN 167-250-04. At the time Lot Ten (10) is needed
for access purposes for said adjacent property, the Association
shall relinquish th.e landscape maintenance easement. Each Owner of
a Lot subject to this Declaration is hereby advised that Lot Ten
(10) is intended to be paved at the expense of said adjacent
property and used as a driveway to access future development of
said adjacent property .
21.7. Maintenance of Concrete Terrace Drains . <
Each Owner of a Lot subject to this Declaration shall maintain a
concrete terrace drain, if any, located on the Owner's Lot. The
Association shall maintain a concrete terrace drain, if any,
located on the Association Property.
21.8. Open Space Easement .
The Owners of Lots 1, 4, 5, 6, 7, 8, 9, 12, 13, 15, 16, 17, 18,
19, 20, 26, 27, 28, 29 and 33 are hereby advised that the
Declarant, as a condition of approval of the Final Map for the
Project by the City, the City has required inclusion of an open u, ,_ a,
space easement for those portions of the aforementioned lots which '
are in slopes, in their entirety to prohibit any encroachment or
development, including but not limited to fences, walls, decks,
storage buildings, pools, spas, stairways, and landscaping, other
than approved as part of the landscape plans shown on Exhibits "E"-
"F" on file with the Planning Department of the City.
21.9. General Enforcement by the City. The City shall &
have the right, but not the obligation, to enforce those Protective
Covenants set forth in this Declaration in favor of, or in which,
the City has an interest .
This Declaration is dated for identification purposes October
26, 1997.
PACIFIC VIEW COMMUNITIES , LLC . , a
California limited liability company of:
PACIFIC VIEW LTD., a Nevada limited
liability company
By: _
D. JACK
Its: MANAGING MEMBER
"Declarant"
66
LANDSOURCE CARLSBAD, LLC., a California
limited liability company
By:
PHIL MULLARD
Its: MANAGING MEMBER
"Declarant"
67
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 199 , before me, the
undersigned, a Notary Public in and for said State, personally
appeared and personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the 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.
Notary Public in and for said State
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 199 , before me, the
undersigned, a Notary Public in and for said State, personally
appeared and personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the 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.
Notary Public in and for said State
68
SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in
and under that certain Deed of Trust dated , 19 , and Recorded on
19 as Instrument No. the Official Records of San
Diego County, California (the "Deed of Trust") , which Deed of Trust
is by and between , as Trustor, , as
Trustee, and , as Beneficiary, hereby
expressly subordinates said Deed of Trust and its beneficial
interest thereunder to the foregoing Declaration of Covenants,
Conditions and Restrictions and Reservation of Easements for
PACIFIC VIEW ESTATES ("Declaration") and to all maintenance and
other easements to be conveyed to the Association in accordance
with the Declaration. By executing this Subordination, the
undersigned agrees that should the undersigned acquire title to all
or any portion of the Property by foreclosure or any other remedy
in or relating to the Deed of Trust, the undersigned will acquire
title subject to the provisions of the Declaration, which shall
remain in full force and effect.
Dated: , 1997
By:_
ItS:_
By:_
Its:
69
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 199 , before me, the
undersigned, a Notary Public in and for said State, personally
appeared and personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the 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.
Notary Public in and for said State
70
EXHIBIT "A"
PHASE II: Lots Fourteen (14) through Twenty-Four (24),
inclusive, and Association Property Lot Eight
(8) of CITY OF CARLSBAD TRACT NO. 96-03, Map
thereof No. , filed in the Office of the County
Recorder of said San Diego County on 1997
as Instrument No. .
PHASE III: Lots One (1) through Three (3), inclusive, Lots
Twenty-Five (25) through Thirty-One (31),inclusive,
Lot Thirty-Three (33), and Association Property Lot
Nine (9) and Association Property Lot Twelve (12) of
CITY OF CARLSBAD TRACT NO. 89-23, Map thereof No.
, filed in the Office of the County Recorder of
said San Diego County on 1997 as
Instrument No.
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EXHIBIT "B"
47 Code of Federal Regulations Section 1.4000.
1.4000. Restrictions impairing reception of Television
Broadcast Signals, Direct Broadcast Satellite Services or Multi-
Channel Multipoint Distribution Services
(a) Any restriction, including but not limited to any
state or local law or regulation, including zoning, land-
use, or building regulation, or any private covenant,
homeowners' association rule or similar restriction on
property within the exclusive use or control of the
antenna user where the user has a direct or indirect
ownership interest in the property, that impairs the
installation, maintenance, or use of:
(1) an antenna that is designed to receive direct
broadcast satellite service, including direct-to-
home satellite services, that is one meter or less
in diameter or is located in Alaska; or
(2) an antenna that is designed to receive video
programming services via multipoint distribution
services, including multichannel multi-point
distribution services, instructional television
fixed services, and local multi-point distribution
services, and that is one meter or less in diameter
or diagonal measurement; or
(3) an antenna that is designed to receive
television broadcast signals, is prohibited to the
extent it impairs, subject to paragraph (b). For
purposes of this rule, a law, regulation, or
restriction impairs, maintenance or use of an
antenna if it: (1) unreasonably delays or prevents
installation, maintenance, or use, (2) unreasonably
increases the cost of installation, maintenance, or
use, or (3) precludes reception of an acceptable
quality signal. No civil, criminal or
administrative, or other legal action of any kind
shall be taken to enforce any restriction or
regulation prohibited by this rule except pursuant
to paragraph (c) or (d) . No fine or other penalties
shall accrue against an antenna user while a
proceeding is pending to determine the validity of
any restriction.
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(b) Any restriction otherwise prohibited by paragraph (a) is
permitted if:
(1) it is necessary to accomplish a clearly defined
safety objective that is either state in the text,
preamble or legislative history of the restriction or
described as applying to that restriction in a document
that is readily available to antenna users, and would be
applied to the extent practicable in a non-discriminatory
manner to other appurtenances, devices, or fixture that
are comparable in size, weight and appearance to these
antennas and to which local regulation would normally
apply; or
(2) it is necessary to preserve an historic district
listed or eligible for listing in the National Register
of Historic Places, as set forth in the National Historic
Preservation Act of 1966, as amended , 16 U.S.C. Section
470a, and imposes no greater restrictions on antennas
covered by this rule than are imposed on the
installation, maintenance, or use of other modern
appurtenances, devises or fixtures that are comparable in
size, weight, and appearances to these antennas; and
(3) it is no more burdensome to affected antenna users
than is necessary to achieve the objectives described
above.
(c) Local governments or associations may apply to the
Commission for a waiver of this rule under Section 1.3 of the
Commission's rules, 47 C.F.R. Section 1.3. Waiver requests
will be put on public notice. The Commission may grant a
waiver upon a showing by the applicant of local concerns of a
highly specialized or unusual nature. No petition for waiver
shall be considered unless it specifies the restriction at
issue. Waivers granted in accordance with this section shall
not apply to restrictions amended or enacted after the waiver
is granted. Any responsive pleadings must be served on all
parties and filed within 30 days after release of a public
notice that such petition has been filed. Any replies must be
filed within 15 days thereafter.
(d) Parties may petition the Commission for a declaratory
ruling under Section 1.2 of the Commission's rules, 47 C.F.R.
Section 1.2, or a court of competent jurisdiction, to
determine whether a particular restriction is permissible or
prohibited under this rule. Petitions to the Commission will
be put on public notice. Any responsive pleadings must be
served on all parties and filed within 30 days after release
of a public notice that such petition has been filed. Any
replies must be filed within 15 days thereafter.
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(e) In any Commission proceeding regarding the scope or
interpretation of any provision of this section, the burden of
demonstrating that a particular governmental or
nongovernmental restriction complies with this section and
does not impair the installation, maintenance, or use of
devices designed for over-the-air reception of video
programming services shall be on the party that seeks to
impose or maintain the restriction.
(f) All allegations of fact contained in petitions and
related proceedings before the Commission must be supported by
affidavit of a person or persons with actual knowledge
thereof. An original and two copies of all petitions and
pleadings should be addressed to the Secretary, Federal
Communications Commission, 1919 M St. N.W., Washington, D.C.
20554. Copies of the petitions and related proceedings will
be available for public inspection in the Cable Reference Room
in Washington, D.C. Copies will be available for purchaser
from the Commission's contract copy center, and Commission
decisions will be available on the Internet.
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EXHIBIT "1"
LANDSCAPE MAINTENANCE AREAS
"Landscape Maintenance Areas" shall mean and refer to those
portions of an Owners Lot shown as the cross hatched area on the
diagrammatic portion of this Exhibit "1".
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CO
ZE
X
x
EXHIBIT "2"
LANDSCAPE IRRIGATION AREAS
"Landscape Irrigation Areas" shall mean and refer to those portions
of an Owners Lot shown as the cross hatched area on the
diagrammatic portion of this Exhibit "2".
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