HomeMy WebLinkAboutCT 98-15; Rancho Carrillo Village B Phase II; Tentative Map (CT) (43)HECHT
SOLBERG
ROBINSON A-JOHN HECHT
r>r\T rujCDr1 ATTORNEY AT LAW
i GOLDBERG E-Mail: AJH@hsrg.com
LLP
February 9, 2000
Via Overnight Mail
Ms. Nancy Nemec
Continental Residential, Inc.
2237 Faraday Avenue, Suite 100
Carlsbad, CA 92008
Re: CT 98-15 (Serrano At Rancho Carrillo)
Dear Nancy:
Enclosed is the Declaration of Restrictions For Serrano At Rancho Carrillo. I understand
that you will be sending a copy of the Declaration to the City for its review. To the assist the
City I have described below those sections of the enclosed document, which satisfy the
provisions in Planning Commission Resolution No. 4467 which pertain to the Declaration.
Condition of Resolution Provision of Declaration
11 (A) 14.2
11(B) 7.3 (f)
11 (C) 4.20
11 (D) Recital I (page 2)
11 (E) 7.3 (and all Sub-sections)
11(F) 6.21
38 Article VII
ATTORNEYS AT LAW 600 WEST BROADWAY, EIGHTH FLOOR SAN DIEGO, CALIFORNIA 92101 TELEPHONE 619.239.3444 FACSIMILE 619.232.6828
Ms. Nancy Nemec
February 9, 2000
Page 2
Please let me know if I can assist you or the City with the City's review in any way.
Very truly yours,
A. JbtafHecE£A.P.L.C.
HECTpr/SOLBERG, ROBINSON & GOLDBERG LLP
AJH/ew
Enclosure.
Recording Requested By
and
When Recorded Mail To:
HECHT, SOLBERG, ROBINSON & GOLDBERG LLP
Mr. John Hecht
600 West Broadway, Eighth Floor
San Diego, California 92101
DECLARATION OF RESTRICTIONS
FOR
SERRANO AT RANCHO CARRILLO
(A CONDOMINIUM COMMON INTEREST DEVELOPMENT)
TABLE OF CONTENTS
RECITALS 1
ARTICLE I DEFINITIONS 3
Section 1.1 Architectural Committee 3
Section 1.2 Articles 3
Section 1.3 Association 3
Section 1.4 Association Property 3
Section 1.5 Board 3
Section 1.6 Building Envelope 3
Section 1.7 Bylaws 3
Section 1.8 Common Area 3
Section 1.9 Common Expenses 4
Section 1.10 Condominium 4
Section 1.11 Condominium Plan 4
Section 1.12 Covered Property 4
Section 1.13 DVA 5
Section 1.14 Declarant 5
Section 1.15 Declaration .5
Section 1.16 Eligible Insurer or Guarantor 5
Section 1.17 Eligible Mortgage Holder 5
Section 1.18 Exclusive Use Area 5
Section 1.19 Living Unit 5
Section 1.20 Member 6
Section 1.21 Mortgage 6
Section 1.22 Mortgagee 6
Section 1.23 Owner 6
Section 1.24 Phase 6
Section 1.25 Project 6
Section 1.26 Real Property 6
Section 1.27 Retail Purchaser 6
ARTICLE II PROPERTY RIGHTS IN ASSOCIATION PROPERTY AND COMMON AREA 6
Section 2.1 Title to the Association Property 6
Section 2.2 Owners' Easements of Enjoyment 7
Section 2.3 Delegation of Use 8
Section 2.4 City Easement 8
Section 2.5 Power of Attorney to Correct Errors 9
ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 9
Section 3.1 Each Owner Is A Member 9
Section 3.2 Classes of Voting Membership 9
Section 3.3 Termination of Class B Membership 10
Section 3.4 Commencement of Voting Rights 10
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ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION . 10
Section 4.1 Covenant for Assessments 10
Section 4.2 Purpose of Assessments 10
Section 4.3 Maximum Regular and Special Assessments 11
Section 4.4 Non-Lien Assessments (Compliance) 12
Section 4.5 Schedule of Monetary Penalties 12
Section 4.6 Rate of Regular Assessments 13
Section 4.7 Rate of Special Assessments for Repairs 13
Section 4.8 Date of Commencement of Regular Assessments 13
Section 4.9 Adjustment of Assessments; Due Dates 13
Section 4.10 Limited Regular Assessments 13
Section 4.11 Model Homes 14
Section 4.12 Effect of Non-Payment of Assessments; Remedies of the
Association 14
Section 4.13 Subordination of the Lien to First Deeds of Trust and First
Mortgages 15
Section 4.14 Estoppel Certificate 16
Section 4.15 Non-Use of Association Property or Common Area 16
Section 4.16 Taxation of Association 16
Section 4.17 Payment of Assessments By Declarant 16
Section 4.18 Sub-metering of Water 16
Section 4.19 Uncompleted Facilities 17
Section 4.20 Assessments Levied by City 17
Section 4.21 Capitalization of Association 18
ARTICLE V POWERS AND DUTIES OF ASSOCIATION 18
ARTICLE VI USE OF CONDOMINIUMS 18
Section 6.1 Residential Purposes 18
Section 6.2 Lease of Condominium 18
Section 6.3 Use Not to Impair Insurance 18
Section 6.4 Animals 19
Section 6.5 Nuisance 19
Section 6.6 Sign Control 19
Section 6.7 Outside Antennae 19
Section 6.8 No Owner Modification to Association Property or Common Area . 19
Section 6.9 No Offensive Activity 20
Section 6.10 Power Equipment 20
Section 6.11 Use of Association Property and Common Area 20
Section 6.12 Owners Liable for Damage 21
Section 6.13 Decorating by Owner 21
Section 6.14 No Impairment of Structures 21
Section 6.15 Exclusive Use Areas 21
Section 6.16 Use of Exclusive Use Areas 21
Section 6.17 Garages 23
Section 6.18 Outside Parking 23
Section 6.19 Right of Access 23
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Section 6.20 Window Coverings 23
Section 6.21 Sight Distance Corridors 23
Section 6.22 City Requirements; Fire Suppression Zones 24
Section 6.23 Post-Tensioned Slabs 24
Section 6.24 No Over Irrigation 24
Section 6.25 Trash Drop Off Locations 24
Section 6.26 No Discharging of Toxic Chemicals 24
Section 6.27 Construction and Sales Activities 25
ARTICLE VII RESPONSIBILITIES OF MAINTENANCE 25
Section 7.1 Maintenance by Owners 25
Section 7.2 Failure to Maintain 26
Section 7.3 Maintenance by Association 26
Section 7.4 Reimbursement 27
Section 7.5 Wood-Destroying Pests 27
ARTICLE VIII SEPARATION OF INTERESTS AND PARTITION PROHIBITED 28
Section 8.1 No Separation of Interests 28
Section 8.2 No Partition 28
Section 8.3 Power of Attorney 28
ARTICLE IX DAMAGE, DESTRUCTION AND CONDEMNATION OF COMMON AREA
OR ASSOCIATION PROPERTY 29
Section 9.1 Damage or Destruction 29
Section 9.2 Condemnation 30
Section 9.3 Insurance 30
Section 9.4 Mortgagee Approval 32
ARTICLE X DAMAGE, DESTRUCTION AND CONDEMNATION OF SEPARATE
INTERESTS 32
Section 10.1 Damage or Destruction 32
Section 10.2 Condemnation 33
Section 10.3 Mortgagee Approval 33
ARTICLE XI CONDEMNATION OF ASSOCIATION PROPERTY 33
ARTICLE XII ASSOCIATION'S RIGHT OF ENTRY 33
ARTICLE XIII ADDITIONAL EXCLUSIVE EASEMENTS AND LICENSES 34
Section 13.1 Common Area Licenses 34
Section 13.2 Association Property 34
ARTICLE XIV ENFORCEMENT 34
Section 14.1 Enforcement 34
Section 14.2 No Waiver 34
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ARTICLE XV ADDITIONAL PROVISIONS 34
Section 15.1 Severability 34
Section 15.2 Amendments Prior to Escrow Closings 34
Section 15.3 Amendments After Escrow Closings 34
Section 15.4 Mortgagee Approval of Amendment 34
Section 15.5 Extension of Declaration 36
Section 15.6 Annexation; Reservation of Easements 36
Section 15.7 Enforcement Litigation 38
Section 15.8 Encroachment Easements 38
Section 15.9 Provisions Apply to All Condominiums 38
Section 15.10 DVA Approval 38
Section 15.11 FHA Approval 39
Section 15.12 Special Responsibilities of Association 39
Section 15.13 Limitation of Restrictions on Declarant 39
Section 15.14 Owners' Compliance 40
Section 15.15 Payments of Taxes or Premiums by First Mortgagees 40
Section 15.16 Mortgagee Curing Defaults 40
Section 15.17 Approval of First Mortgagees 40
Section 15.18 Notice to Eligible Mortgagees 41
Section 15.19 Documents to be Available to Mortgagees 42
Section 15.20 Mortgagee Protection 42
Section 15.21 Conflicts 42
Section 15.22 Provisions of Civil Code Section 1360 42
Section 15.23 Documents to be Provided to Prospective Purchasers 43
Section 15.24 Easement to Inspect and Test 44
Section 15.25 Association Property and Common Area Inspection 44
Section 15.26 Definitions 46
Section 15.27 Dispute Notification and Resolution Procedure 46
Section 15.28 Judicial Reference of Certain Disputes 48
Section 15.29 Judicial Reference in Purchase Agreements 49
Section 15.30 No Amendment Without Declarant's Consent 49
ARTICLE XVI DEVELOPMENT BY DECLARANT 49
Section 16.1 Planned Development 49
Section 16.2 Reservation of Rights to Complete Project 49
Section 16.3 Failure to Complete Project 50
Section 16.4 Right of Declarant to Redesign Project 50
Section 16.5 Amendment to Condominium Plan(s) 50
Section 16.6 Power of Attorney 50
Section 16.7 Indemnification of Owners on Exercise of Power of Attorney .... 52
Section 16.8 Limitation on Amendment 52
EXHIBIT "A" THE REAL PROPERTY
EXHIBIT "B" PHASING OF THE PROJECT
SUBORDINATION AGREEMENT(S)
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DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS is made this _ day of , 2000, by
CONTINENTAL RESIDENTIAL, INC., a California corporation, d/b/a Continental Homes
(hereinafter called "Declarant");
This Declaration is made with reference to the following
RECITALS:
A. THE REAL PROPERTY. Declarant is the owner of that certain Real Property located
in the City of Carlsbad, County of San Diego, California, more particularly described as on
Exhibit "A" attached to this Declaration.
B. THE PROJECT. Declarant plans to construct a phased residential condominium
project called "SERRANO AT RANCHO CARRILLO" on portions of the Real Property with more
than one home in each building.
C. PHASING OF SERRANO AT RANCHO CARRILLO. It is currently intended that SERRANO
AT RANCHO CARRILLO will be marketed in the seven (7) Phases described on Exhibit "B"
attached to this Declaration. However, there is no guarantee that all Phases will be con-
structed or completed or that the phasing will occur in the exact order set forth on Exhibit "B".
If all Phases of SERRANO AT RANCHO CARRILLO are completed and annexed as planned,
there will be a total of one hundred twenty-four (124) Condominiums in the Project. Each
Condominium shall have appurtenant to it a membership in SERRANO AT RANCHO CARRILLO
ASSOCIATION, a California nonprofit mutual benefit corporation ("Association"), which will
be the management body for the Project and the owner in fee of the Association Property.
D. PROPERTY COVERED BY THIS DECLARATION. Initially, this Declaration encumbers
only the following real property (the Covered Property):
Lot 1 of CITY OF CARLSBAD TRACT 98-15 RANCHO CARRILLO
VILLAGE "B", according to Map thereof No. , filed
with the County Recorder of San Diego County, California on
, 2000.
Other portions of the Real Property may be annexed to this Declaration pursuant to the Section
below entitled "Annexation; Reservation of Easements" and thereby become a part of the
Covered Property.
E. CONDOMINIUMS. Declarant intends to establish a condominium project under the
provisions of the California CIVIL CODE. Each home in the Covered Property will be located
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within space shown as a Living Unit on a Condominium Plan. Each Living Unit will consist of
a separate interest to space within a building and it is intended that there will be more than
one Living Unit in each building. (Four-Plex and Five-Plex buildings are presently planned for
the Project).
F. CONDOMINIUM PLANS. It is currently intended that there will be a separate
Condominium Plan for each residential building within the Covered Property. For purposes of
convenience, Condominium Plans covering more than one of the residential buildings intended
to be constructed on the land described in Recital D above may be attached together and
recorded together. Each residential building within the Covered Property will be within a
Building Envelope shown on the applicable Condominium Plan.
G. THE COMMON AREA AND ASSOCIATION PROPERTY. The Common Area will consist
of those portions of SERRANO AT RANCHO CARRILLO which are owned in undivided interests
amongst certain Owners, with the Owners of the Living Units in a building sharing an equal
undivided interest in the Common Area portions of the applicable Building Envelope; the
Common Area portions of a Building Envelope will be the entire Building Envelope excepting
the Living Units in the building. The Association Property refers to portions of the Covered
Property which will be transferred to the Association (either as easements or fee title). The
Association Property will include all portions of the Covered Property other than the Building
Envelopes. Any Association Property to be owned by the Association with respect to a Phase
shall be conveyed to the Association prior to close of the first escrow in the respective Phase
to a Retail Purchaser.
H. No REPRESENTATION OF COMPLETION. Declarant makes no representation that all
the Condominiums, Association Property or Common Area planned for the Project will in fact
be completed.
I. MASTER DECLARATION. The Real Property, being a part of an overall project
known as "Rancho Carrillo", is subject to that certain Master Declaration of Restrictions For
Rancho Carrillo Master Association (the "Master Declaration") recorded June 17, 1998,
Document No. 1998-0369115, Official Records of San Diego County, California. Owners will
be members of both the Association and the Rancho Carrillo Master Association.
J. CONDOMINIUM ELEMENTS. Generally, the Owners of a Condominium will receive
those property interests which are described below in the definition of "Condominium".
K. COMMON PLAN OF RESTRICTIONS; BINDING ON FUTURE OWNERS. Before selling or
conveying any interests in the Covered Property, Declarant desires to subject the Covered
Property to certain covenants and restrictions, in accordance with a common plan, for the
benefit of Declarant and any and all present and future owners of the Covered Property.
NOW, THEREFORE, Declarant hereby declares that all the Covered Property, (including,
upon annexation, additional portions of the Real Property which are added to the Covered
Property), shall be held, sold and conveyed subject to the following easements, restrictions and
covenants, which are enforceable equitable servitudes as described in California CIVIL CODE
Section 1354 and which are for the purpose of establishing a general plan for protecting the
value and desirability of, and which shall run with the Covered Property and be binding on all
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parties having any right, title or interest in the Covered Property, their heirs, successors and
assigns, and shall inure to the benefit of each Owner thereof.
ARTICLE I
DEFINITIONS
Section 1.1. "Architectural Committee" shall mean and refer to the person or persons
which may be from time to time appointed by the Board to serve as the Architectural
Committee. The members of the Architectural Committee need not be members of the Board
or the Association. Each member of the Architectural Committee shall serve until he or she
resigns or is removed by the Board. The Board shall act as the Architectural Committee in the
event the Board does not appoint an Architectural Committee. The architectural control
provisions set forth below are in addition to the architectural control provisions set forth in the
Master Declaration.
Section 1.2. "Articles" shall mean and refer to the Articles of Incorporation of the
Association as they may from time to time be amended.
Section 1.3. "Association" shall mean and refer to SERRANO AT RANCHO CARRILLO
ASSOCIATION, a California Nonprofit Mutual Benefit Corporation, its successors and assigns.
Section 1.4. "Association Property" shall mean all real property and easements owned
by the Association from time to time for the common use and enjoyment of the Owners. It is
anticipated the Association Property will include the remainder of the Covered Property after
excluding all the Building Envelopes. Any pipes, wires or other utility installations which serve
more than one Living Unit but which are not owned and maintained by the City or a public
utility and are not part of the Common Area will also be Association Property (e.g., it is
currently intended that there will be a private sub-meter water system and private storm drain
system within the Project). Television cable and related CATV equipment and other
communication equipment may be owned by the cable supplier or another third party.
Section 1.5. "Board" shall mean and refer to the Board of Directors of the Association.
Section 1.6. "Building Envelope" shall mean and refer to that three dimensional portion
of the Covered Property, established pursuant to GOVERNMENT CODE § 66427. Each Building
Envelope shall be the area which is so described on the applicable Condominium Plan. It is
intended that a separate Condominium Plan will be recorded for each Building Envelope. Each
Condominium Plan will also describe the Living Units, Common Area and Exclusive Use Areas
within the Building Envelope.
Section 1.7. "Bylaws" shall mean and refer to the Bylaws of the Association as they
may from time to time be amended.
Section 1.8. "Common Area" shall consist of all portions of a Building Envelope except
the Living Units located in such Building Envelope. The boundaries of the Common Area shall
be the boundaries of the applicable Building Envelope as shown on the applicable Condominium
Plan. The Owners of the Living Units within a Building Envelope shall receive an equal
undivided ownership interest in the Common Area of that Building Envelope only, with the
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undivided interest of each such Owner being equal to the reciprocal of the number of Living
Units within the Building Envelope. It is intended that the Common Area include all portions
of the building in a Building Envelope, including, but not limited to, the roof, any chimneys,
vents, balconies, foundations, overhangs, columns and other appurtenances regardless of
whether any such items lie outside the boundary lines shown on the applicable Condominium
Plan. In interpreting deeds and plans, the then existing physical boundaries of a building
whether in its original state or reconstructed in substantial accordance with the original plans
thereof, shall be conclusively presumed to be its boundaries rather than the boundaries
expressed in the deed or plan, regardless of settling or lateral movement of the building and
regardless of minor variance between boundaries shown on the plan or deed and those of the
building.
Section 1.9. "Common Expenses" means and includes the actual and estimated
expenses of operating the Project and any reasonable reserve for such purposes as found and
determined by the Board and all sums designated common expenses by or pursuant to the
condominium documents.
Section 1.10. "Condominium" shall mean and refer to a fee simple estate in the Project
and shall consist of:
(a) A Living Unit airspace;
(b) The exclusive right to use and occupy any Exclusive Use Area which the
applicable Condominium Plan shows as being appurtenant to the Living Unit;
(c) An undivided interest as tenant in common to the Common Area;
(d) An easement over the Association Property which has been conveyed
to the Association, subject to the Association's rules, regulations and procedures.
Section 1.11. "Condominium Plan" shall mean and refer to each Condominium Plan
recorded pursuant to California CIVIL CODE Section 1351(e) covering any portion of the
Covered Property. It is intended that several separate Condominium Plans be recorded
concurrently, and for purposes of convenience, more than one such Condominium Plan may
be attached together as a single document; however, each such Condominium Plan shall
remain a separate Condominium Plan within the meaning of CIVIL CODE SECTION 1351 (e).
Section 1.12. "Covered Property" shall initially mean following real property:
Lot 1 of CITY OF CARLSBAD TRACT 98-1 5 RANCHO CARRILLO
VILLAGE "B", according to Map thereof No. , filed
with the County Recorder of San Diego County, California on
, 2000.
Other portions of the Real Property may be annexed to this Declaration pursuant to the Section
below entitled "Annexation; Reservation of Easements" and will thereby become a part of the
Covered Property.
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Section 1.13. "DVA" shall mean and refer to the United States Department of
Veterans Affairs.
Section 1.14. "Declarant" shall mean and refer to CONTINENTAL RESIDENTIAL, INC.,
a California corporation, d/b/a Continental Homes. Declarant shall also refer to (a) the assigns
of Declarant who are expressly assigned the rights of Declarant and (b) successors of
Declarant who become successors by operation of law or by exercise of the remedies under
a mortgage, deed of trust or deed in lieu of foreclosure.
Section 1.15. "Declaration" shall mean and refer to this enabling Declaration of
Restrictions, as it may from time to time be amended.
Section 1.16. "Eligible Insurer or Guarantor" shall mean and refer to an insurer or
governmental guarantor who has requested notice from the Association of those matters
which such insurer or guarantor is entitled to notice of by reason of this Declaration or the
Bylaws of the Association and who has provided the Association with the address to which
such notice is to be sent and the Condominium unit number which is encumbered by a
Mortgage in which it has an interest.
Section 1.17. "Eligible Mortgage Holder" shall mean and refer to a holder of a first
Mortgage on a Condominium who has requested notice from the Association of those matters
which such holder is entitled to notice of by reason of this Declaration or the Bylaws of the
Association and who has provided the Association with the address to which such notice is
to be sent and the Condominium unit number which is encumbered by a Mortgage in which
it has an interest.
Section 1.18. "Exclusive Use Area" shall mean and refer to those portions of the
Association Property or Common Area to which an exclusive right to use is granted to an
Owner as shown and described on the applicable Condominium Plan. Balcony, Patio and Entry
Exclusive Use Areas are currently planned for the Project. A Condominium Plan may show the
minimum square footage area of one or more Exclusive Use Areas but not show the actual
dimensions of the Exclusive Use Area except by reference to Project improvements {e.g.,
fences and walls which adjoin a Patio).
Section 1.19. "Living Unit" shall mean and refer to a separate interest in space as
defined in California CIVIL CODE Section 1351(f) and as shown and described as such on the
applicable Condominium Plan. The following are Common Area or Association Property and not
a part of any Living Unit: Bearing walls, columns, floors, roofs, foundations, central heating,
central refrigeration and central air conditioning equipment, reservoir tanks, pumps and other
central services, pipes, ducts, flues, chutes, conduits, wires and other utility installations,
wherever located, except the outlets thereof when located in the Living Unit and such items
as are used exclusively by an Owner and not in common. Each Living Unit shall include any
door or window within a perimeter wall, the interior undecorated surfaces of bearing walls and
perimeter walls, floors and ceilings, any photo cell sensor porch entry lighting, and the outlets
of all utility installations in the Living Unit, including the fire box of any fireplace located in the
Living Unit. In interpreting deeds and plans, the then existing physical boundaries of a Living
Unit, whether in its original state or reconstructed in substantial accordance with the original
plans thereof, shall be conclusively presumed to be its boundaries rather than the boundaries
expressed in the deed or plan, regardless of settling or lateral movement of the building and
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regardless of minor variance between boundaries shown on the plan or deed and those of the
building. "Living Unit" includes any garage portion thereof as shown on the applicable
Condominium Plan.
Section 1.20. "Member" shall mean and refer to a person entitled to membership in the
Association as provided herein.
Section 1.21. "Mortgage" shall mean and refer to a mortgage or deed of trust which
encumbers a Condominium.
Section 1.22. "Mortgagee" shall mean and refer to a beneficiary under a deed of trust
which encumbers a Condominium as well as a mortgagee under a Mortgage.
Section 1.23. "Owner" shall mean and refer to the record owner, whether one (1) or
more persons or entities, of fee simple title to any Condominium, including contract sellers, but
excluding those having such interest merely as security for the performance of an obligation.
Section 1.24. "Phase" shall mean and refer to a portion of the Covered Project shown
on Exhibit "B" attached hereto as a separate Phase. However, Declarant shall have the right
to revise the phasing of the Project from time to time as evidenced either by recordation of a
document which revises Exhibit "B" (which Declarant shall have the unilateral right to do) or
by Declarant applying for and receiving one or more Final Subdivision Public Reports issued by
the California Department of Real Estate which describe revised phasing. The obligation of
Condominium Owners to pay dues to the Association and the right of such Condominium
Owners to exercise voting rights in the Association shall not commence against the
Condominiums within a Phase until the first day of the month following close of the first sale
of a Condominium by Declarant in that particular Phase of development.
Section 1.25. "Project" shall mean and refer to the Covered Property.
Section 1.26. "Real Property" shall mean and refer to that real property located in the
City of Carlsbad, County of San Diego, California, described on Exhibit "A" attached hereto.
Section 1.27. "Retail Purchaser" shall mean and refer to anyone other than a successive
Declarant who purchases a Condominium from Declarant through authority of a Final
Subdivision Public Report issued by the California Department of Real Estate.
ARTICLE II
PROPERTY RIGHTS IN ASSOCIATION PROPERTY AND COMMON AREA
Section 2.1. Title to the Association Property. Declarant covenants for itself, its
successors and assigns, that Declarant will convey to the Association any Association
Property within a Phase of the Covered Property free and clear of all encumbrances and liens,
except non-delinquent taxes, easements, covenants, conditions and reservations then of
record, including those set forth in this Declaration, prior to the conveyance of the first
Condominium in the respective Phase to a Retail Purchaser.
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Section 2.2. Owners' Easements of Enjoyment. Subject to the limitations set forth in
this Declaration, every Owner of a Condominium shall have a right and easement of
enjoyment, use and ingress and egress to and from the Association Property from and after
conveyance of the same to the Association. These rights and an Owner's undivided interest
in the Common Area shall be appurtenant to and shall pass with the title of each
Condominium, subject to the following provisions:
(a) The right of the Board to make rules and regulations relating to the
operation and use of the Association Property and Common Area, including the right of
the Board to restrict use of the recreational facilities to those in possession of Living Units
and to those additional persons who are entitled to use. Except for areas where
easement rights have been transferred or reserved to the contrary, the Board shall have
the right to control the hours of such use and to determine whether such facilities may
be used by guests of persons entitled to use. The Association shall have no right to
restrict reasonable access to a Condominium by the persons who have the right to
possession of the Condominium.
(b) The right of the Board to suspend the voting rights of an Owner and right
to suspend use of recreational facilities by the Owner and occupants of a Condominium:
(i) During the period of time any Association assessment against the
Condominium remains delinquent; and/or
(ii) For a period of not more than thirty (30) days for any infraction
of the Board's published rules and regulations after reasonable written notice
and an opportunity for a hearing before the Board which satisfies the minimum
requirements of California CORPORATIONS CODE Section 7341 as set forth in the
Bylaws.
(c) The right of the Board, subject to the limitations stated in the Section
below entitled "Approval of First Mortgagees" and subject to the restrictions stated in
California CORPORATIONS CODE Section 8724, to transfer less than substantially all of the
Association Property. It is specifically intended that the Board have the right to cooperate
with Declarant and any Owner in adjusting the boundaries of Exclusive Use Areas or
between the Association Property and other portions of the Project.
(d) The sole and exclusive right of the Association, acting through its Board,
to operate, maintain and control the Association Property and Common Area except as
otherwise stated in this Declaration.
(e) The right of the Board to grant or dedicate to third parties permits,
licenses (which may be irrevocable), and easements over the Association Property and
Common Area for utilities, roads and other purposes necessary for the proper operation
of the Project; and the right of the Board to convey portions of the Association Property
to others in connection with a boundary adjustment requested by an adjacent property
owner or public entity.
(f) The right of the Board to grant easements and licenses over the
Association Property and the Common Area pursuant to this Declaration.
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(g) The right of the Association, in accordance with the Articles and Bylaws,
to borrow money for the purpose of improving the Association Property and to
hypothecate any of all real or personal property owned by the Association.
(h) The right of access, ingress and egress over the Association Property and
Common Area and the right of installation and use of utilities on the Association Property
and Common Area for the benefit of the Condominiums.
(i) Declarant's right to construct and market homes and other improvements
within the Real Property, including the following rights: •
(i) Declarant and its sales agents, employees and independent
contractors shall have the right to the non-exclusive use of the Association
Property and Common Area for the purpose of maintaining sales offices,
parking, signs and flags reasonably necessary to market the Condominiums in
the Real Property. Declarant shall have the right, during its marketing of the Real
Property, to control those hours in which Declarant, its agents, contractors and
potential buyers to have access to the Real Property. These rights of Declarant
may be exercised only until close of escrow to Retail Purchasers of all 124
Condominiums planned for the Real Property.
(ii) Declarant shall also have a non-exclusive easement over the
Association Property and Common Area to provide access and utilities thereto
for the purpose of constructing, marketing and utilizing portions of the Real
Property owned by Declarant.
(iii) Declarant shall have the other rights of Declarant under this
Declaration, including those set forth in the Article below entitled
"DEVELOPMENT BY DECLARANT".
The use of the Common Area and the Association Property by Declarant and its
agents shall not unreasonably interfere with the use thereof by the Class A Members of the
Association. Declarant shall repair any portion of the Association Property or Common Area
which may be damaged by Declarant.
Section 2.3. Delegation of Use. Subject to the restrictions stated in this Declaration,
any Owner may delegate, in accordance with the Bylaws and the rules and regulations of the
Board, the Owner's right of enjoyment to the Association Property and Common Area and
facilities to the members of the Owner's family, tenants, guests or contract purchasers who
reside in the applicable Living Unit. Each Owner shall be responsible to the Association for any
damage to the Association Property and Common Area caused by such Owner or persons to
whom Common Area or Association Property rights have been transferred.
Section 2.4. Citv Easement. The City shall have an easement over the Association
Property for maintenance purposes which may be exercised upon the failure of the Association
to maintain the Association Property in accordance with the conditions of approval of the
tentative map for Carlsbad Tract No. 98-15, pursuant to Section 7.3 of this Declaration.
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Section 2.5. Power of Attorney to Correct Errors. The Association is hereby given a
power of attorney to act on behalf of the Owners and their Mortgagees to correct errors in any
Condominium Plan by executing on behalf of the affected Owners and Mortgagees an
amendment to the applicable Condominium Plan and an instrument to effect any conveyances
or partial reconveyances necessary to correct such errors. The power hereby given to the
Association is limited as follows:
(a) The power may be exercised only to correct errors in a Condominium Plan
as evidenced by a written statement which describes the error(s) and which is signed by
the engineer who prepared the Condominium Plan or by Declarant. The power hereby
given may not be utilized for any other purpose.
(b) The power may not be exercised on behalf of an Owner or his or her
Mortgagee if the Owner's Living Unit or Exclusive Use Area would be reduced in size by
reason of the correction.
The power hereby given is coupled with an interest and may not be revoked by an Owner but
may be revoked by a Mortgagee. Any such revocation by a Mortgagee shall be by means of
its signed statement of revocation recorded with the County Recorder of San Diego County.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
Section 3.1. Each Owner Is A Member. Each Owner of a Condominium shall be a
Member of the Association. Membership shall be appurtenant to and may not be separated
from ownership of any Condominium. Each Owner is obligated promptly, fully and faithfully
to comply with and conform to this Declaration and the Bylaws and the rules and regulations
adopted from time to time by the Board and officers of the Association. Membership in the
Association shall not be transferred, pledged or alienated in any way, except upon the sale or
encumbrance of the Condominium to which it is appurtenant, and then only to the purchaser,
in the case of a sale, or Mortgagee, in the case of an encumbrance of such Condominium. Any
attempt to make a prohibited transfer is void. In the event the Owner of any Condominium
should fail or refuse to transfer the membership registered in the Owner's name to the
purchaser of his or her Condominium, the Association shall have the right to record the
transfer upon its books and thereupon the old membership outstanding in the name of the
seller shall be null and void.
Section 3.2. Classes of Voting Membership. The Association shall have two classes
of voting membership:
(a) Class A. Class A Members shall be all Owners of the Condominiums with
the exception of Declarant, and shall be entitled to one (1) vote for each Condominium
owned. When more than one person holds an interest in any Condominium, all such
persons shall be Members. The vote for such Condominium shall be exercised as they
among themselves determine, but in no event shall more than one (1) vote be cast with
respect to any Condominium.
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(b) Class B. The Class B Member(s) shall be the Declarant and shall be
entitled to three (3) votes for each Condominium owned.
Section 3.3. Termination of Class B Membership. The Class B membership shall cease
and be converted to Class A membership on the happening of either of the following events,
whichever occurs earlier:
(a) Two (2) years following the date of the first conveyance of record by
Declarant of a Condominium to a Retail Purchaser pursuant to the most recent Final
Subdivision Public Report issued by the California Department of Real Estate for a Phase
of the Project; or
(b) Four (4) years following the date of the first conveyance of record by
Declarant of a Condominium to a Retail Purchaser pursuant to the original Final
Subdivision Public Report issued by the California Department of Real Estate for Phase
1 of the Project.
Section 3.4. Commencement of Voting Rights. Voting rights shall be attributable to
a Condominium commencing on the date the Association's regular assessments have
commenced against the Condominium.
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION
Section 4.1. Covenant for Assessments. The Declarant, for each Condominium
owned, covenants, and each Owner of any Condominium by acceptance of a deed to the
Condominium, whether or not so expressed in such deed, is deemed to covenant and agrees
to pay to the Association: (a) regular assessments, which shall include an adequate reserve
fund for periodic maintenance, repair and replacement of the Association Property and
Common Area, (b) special assessments, and (c) those other assessments provided for in this
Article. The regular and special assessments, together with interest, costs, late charges and
reasonable attorney's fees, shall, except as stated in Sections 4.4 and 4.18, be a charge and
continuing lien upon the Condominium against which each such assessment is made, the lien
to become effective upon recordation of a notice of assessment. Each such assessment,
together with interest, costs, late charges and reasonable attorney's fees shall also be the
personal obligation of the person who was the Owner of such Condominium at the time when
the assessment fell due. The personal obligation for delinquent assessments shall not pass to
an Owner's successors in title unless expressly assumed by them; however, the assessment
shall remain a lien on the Condominium.
Section 4.2. Purpose of Assessments. The assessments levied by the Association shall
be used exclusively to promote the recreation, health, safety and welfare of all the residents
in the entire Project and for the improvement and maintenance of the Association Property and
Common Area for the common good of the Project, to reimburse the Association for the costs
incurred in bringing an Owner into compliance with the Bylaws, this Declaration and the rules
and regulations adopted by the Board, and for those other purposes described in this
Declaration. The regular assessments shall be determined at least annually by the Board to
meet the expenses of the Association, including the establishment of reserve accounts, based
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upon the annual budget adopted by the Board pursuant to the Bylaws. A special assessment
is an assessment the Board, in its discretion, determines necessary if the Association's
available funds are or will become inadequate to meet the estimated expenses of the
Association for a fiscal year. The Board may levy the entire special assessment immediately
or levy it in installments over a period the Board determines appropriate. In addition, a special
assessment against a particular Owner only may be levied by the Board as set forth in Section
4.4.
Section 4.3. Maximum Regular and Special Assessments. The Board shall levy regular
and special assessments sufficient to perform the obligations of the Association as provided
in this Declaration and the Bylaws. However, the Board shall not increase the assessments
during any fiscal year unless the Board has complied with the requirements of Subsection (a)
of the Section in the Bylaws entitled "Financial Statements" or unless the Board has obtained
the approval of Owners casting a majority of the votes at a meeting or election of the
Association conducted in accordance with Chapter 5 (commencing with Section 7510) of Part
3 of Division 2 of Title 1 of the California CORPORATIONS CODE and Section 7613 of the
California CORPORATIONS CODE at which a quorum was present or participated. For purposes
of this Section, "quorum" means more than fifty percent (50%) of the Owners.
Except for assessment increases necessary for emergency situations, the Board
may not impose annual increases in regular assessments that are in aggregate more than
twenty percent (20%) greater than the regular assessments for the Association's preceding
fiscal year nor special assessments which in the aggregate exceed five percent (5%) of the
budgeted gross expense of the Association for the fiscal year, without the approval of Owners
casting a majority of the votes at a meeting or election of the Association conducted in
accordance with Chapter 5 (commencing with §7510) of Part 3 of Division 2 of Title 1 of the
California CORPORATIONS CODE and §7613 of the California CORPORATIONS Code at which a
quorum was present or participated. An emergency situation is any one of the following:
(a) An extraordinary expense required by an order of a court;
(b) An extraordinary expense necessary to repair or maintain the Project or
any part of it for which the Association is responsible where a threat to personal safety
in the Project is discovered;
(c) An extraordinary expense necessary to repair or maintain the Project or
any part of it for which the Association is responsible that could not have been
reasonably foreseen by the Board in preparing and distributing the proforma operating
budget under Section 1365 of the California CIVIL CODE. However, prior to the imposition
or collection of an assessment under this Subsection (c), the Board shall pass a resolution
containing written findings as to the necessity of the extraordinary expense involved and
why the expense was not or could not have been reasonably foreseen in the budgeting
process, and the resolution shall be distributed to the members of the Association with
the notice of assessment.
Notwithstanding the above stated limitation against increases in regular
assessments:
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(i) The Board may increase regular assessments more than twenty percent
(20%) if such increase was shown on an Association budget approved by the California
Department of Real Estate and if such increase is allowed by California law;
(ii) The Board may levy special assessments pursuant to the Section in the
Bylaws entitled "Limitation on Expenditure of Reserve Funds";
(iii) Sums assessed against Owners pursuant to the Section below entitled
"Non-Lien Assessments (Compliance)" shall not be considered in calculating the increases
in assessments; and
(iv) Sums assessed against Owners pursuant to the Section below entitled
"Sub-metering of Water" shall not be considered in calculating the increases in assess-
ments.
The due dates of assessments shall be as the Board establishes them. The
Association shall, upon demand and for a reasonable charge, furnish a certificate signed by an
officer of the Association setting forth whether the assessments on a specified Condominium
have been paid. If a certificate states an assessment has been paid, such certificate shall be
conclusive evidence of such payment.
Section 4.4. Non-Lien Assessments (Compliance). The Association may also impose
a special assessment against any Owner to reimburse the Association for costs incurred in
bringing an Owner and the Owner's Condominium into compliance with the provisions of the
Declaration, the Bylaws and Association rules and regulations, or as a penalty imposed as a
disciplinary measure for failure of an Owner or occupants of the Owner's Condominium to
comply with such provisions. Such special assessment may be imposed upon the vote of the
Board after notice and an opportunity for a hearing which satisfy the requirements of Section
7341 of the California CORPORATIONS CODE, as set forth in the Bylaws, and the Board shall
meet in executive session if requested by the Owner being disciplined and the Owner shall be
entitled to attend the executive session. Except to the extent such special assessment is to
reimburse the Association for the cost of collecting assessments, the special assessment shall
not constitute a lien on the Owner's Condominium and shall be assessed only against the
Owner who is or was in non-compliance. The Association shall have lien rights with respect
to charges imposed against an Owner which are reasonable late payment fees for delinquent
assessments, interest and other charges to reimburse the Association for costs reasonably
incurred (including attorney's fees) in its efforts to collect delinquent assessments.
Section 4.5. Schedule of Monetary Penalties. If the Association adopts a policy of
imposing any monetary penalty, including any fee, on any Owner for violation of this
Declaration or the rules of the Association, including any monetary penalty relating to the
activities of a guest or invitee of an Owner, the Board shall adopt and distribute to each
Owner, by personal delivery or first-class mail, a schedule of the monetary penalties that may
be assessed for those violations, which shall be in accordance with the authorization for
Owner discipline set forth in this Declaration and the Bylaws. The Board shall not be required
to distribute any additional schedules of monetary penalties unless there are changes from the
schedule that was adopted and distributed to the Owners pursuant to this Section.
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Section 4.6. Rate of Regular Assessments. Both regular and special assessments shall
be levied upon each Condominium at a uniform rate. However, this Section does not apply to
the sums payable by reason of Sections 4.4, 4.7, 4.10, 4.11, 4.18 or 4.20.
Section 4.7. Rate of Special Assessments for Repairs. Any special assessment to raise
funds for the rebuilding or major repair of a portion of the structural Common Area or
Association Property shall be levied against each Condominium in the Project against which
the Association's regular assessments have commenced. Such special assessments shall be
levied upon the basis of the ratio of the square footage of the floor area of the Living Unit of
the Condominium to be assessed to the total square footage of the aggregate floor area of the
Living Units in all Condominiums to be assessed.
Section 4.8. Date of Commencement of Regular Assessments. The regular assess-
ments shall commence as to all Condominiums in a particular Phase of the Project on the first
day of the month following the conveyance of the first Condominium to a Retail Purchaser in
that Phase.
Section 4.9. Adjustment of Assessments; Due Dates. The Board shall fix the amount
of the regular assessments against each Condominium at least thirty (30) days in advance of
each fiscal year but may change the assessment amount on any subsequent occasion.
Although the amount of regular assessments (other than special assessments) shall be
determined at least annually, commencement of regular assessments against an additional
Phase during the marketing period may cause the regular assessment amounts to change.
Unless otherwise determined by the Board, regular assessments shall be due and payable in
monthly installments on the first day of each calendar month. No notice of regular assess-
ments shall be required except for notices of changes in assessment amount or changes in due
dates. Written notice of changes in the regular assessments or of any special assessment shall
be sent by first class mail to every Owner subject thereto not less than thirty (30) nor more
than sixty (60) days prior to the change in assessments or the special assessment becoming
due.
Section 4.10. Limited Regular Assessments. This Section shall apply only if not all the
residential buildings within a Phase have been completed at the time the regular assessments
commence against the Phase. Any Condominiums which will be located in a building which
is uncompleted at the time regular assessments commence are referred to herein as
"Uncompleted Condominiums" and shall be subject to limited regular assessments in lieu of
regular assessments as hereinafter provided, unless the Board resolves and Declarant expressly
agrees otherwise. For purposes hereof, a Condominium shall be deemed "Uncompleted" if the
construction of the structural improvements to the building in which the Condominium is
located has not progressed to the point which allows the Condominium to be legally occupied.
Should any Phase of the Project include any Uncompleted Condominium at the time
assessments commence against such Phase, then:
(a) In addition to preparing its usual budget, the Association shall prepare a
budget which includes costs and reserves for operation, repair and replacement of all
portions of the Association Property then under the jurisdiction of the Association, other
than any portion of any building within the Project. Such budget is referred to herein as
the "Budget for Non-Building Association Property".
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(b) The regular assessments which commence against each Uncompleted
Condominium ("Limited Regular Assessments") shall be based only upon the Budget for
Non-Building Association Property until the first to occur of (i) completion of the structural
improvements of the building in which the Uncompleted Condominium is located (as is
evidenced by Declarant's filing a Notice of Completion for such building), or (ii) actual
occupancy of such Uncompleted Condominium. An Uncompleted Condominium shall
thereafter forever lose its status of being Uncompleted and shall be subject to the same
regular assessment as all other completed Condominiums.
(c) The Limited Regular Assessments shall be uniform in amount. Limited
Regular Assessments, if any, shall commence against each Uncompleted Condominium
within a Phase at the same time as regular assessments commence for the Phase, and
Limited Regular Assessment shall be in lieu of such regular assessments.
(d) The limitations on assessment increases set forth in Section 4.3 shall not
apply to increases in assessments against a previously Uncompleted Condominium which
result from the conversion of Limited Regular Assessments to regular assessments.
(e) Limited Regular Assessments shall be deemed to be regular assessments,
as such term is used in this Declaration, for all purposes, except as this Section
specifically provides otherwise. The Board shall have the right to disregard this Section
provided that Declarant has given its consent to Board's decision to do so. If Limited
Regular Assessments are applicable, the non-limited regular assessments will exclude
costs of maintenance and reserves for each building containing the Uncompleted
Condominiums until non-limited regular assessments commence against such building.
Section 4.11. Model Homes. Conveyance of a Condominium which is being used by
Declarant for model home, sales office, design center, construction office or similar purposes
(any of which uses are referred to in this Section as "Model Home") shall not commence the
regular assessments against such Condominiums or other Condominiums within the Phase
until:
(a) discontinuance of use of such Condominium as a Model Home; or
(b) conveyance of any non-Model Home Condominium in the Phase,
whichever first occurs. During the period of time commencing on the first day of the month
after conveyance of a Condominium being used by Declarant as a Model Home and ending on
the date regular assessments commence against such Condominium, Declarant shall be solely
responsible to maintain all portions of the Phase in which a Condominium is being used as
Model Home. The Board shall have the right to inspect the areas being maintained by
Declarant pursuant to this Section to determine that such maintenance meets reasonable stan-
dards.
Section 4.12. Effect of Non-Pavment of Assessments: Remedies of the Association.
Any assessment made in accordance with this Declaration (including lien and non-lien
assessments) shall be a debt of the Owner of a Condominium from the time the assessment
is due. Any assessment not paid within fifteen (15) days after the due date shall be delinquent.
Any assessment not paid within thirty (30) days after the due date shall bear interest at the
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rate of twelve percent (12%) per annum from thirty (30) days after the due date until paid in
full. The Association shall have the right to impose a late charge on unpaid assessments in an
amount not exceeding the greater of Ten Dollars ($10.00) or ten percent (10%) of each
assessment which is fifteen (15) days delinquent. At any time after any assessments levied
by the Association affecting any Condominium have become delinquent, the Board may file
for recording in the Office of the County Recorder of the County of San Diego a notice of
delinquency as to such Condominium, which notice shall state all amounts which have become
delinquent with respect to such Condominium and the costs (including attorney's fees),
interest and late charges which have accrued thereon, the amount of any assessments relating
to such Condominium which is due and payable although not delinquent, a description of the
Condominium with respect to which the delinquent assessments are owed, the name of the
record or reputed record Owner of such Condominium, and the name and address of the
trustee authorized by the Association to enforce the lien by sale. Such notice shall be signed
by an officer of the Association or its authorized agent.
Immediately upon recording of any notice of delinquency pursuant to the
foregoing provisions of this Section, the amounts delinquent, as set forth in such notice,
together with the costs (including attorney's fees), late charges and interest accruing thereon,
shall (except as provided in Sections 4.4 and 4.18) be and become a lien upon the
Condominium described therein, which lien shall also secure all other payments and/or
assessments which shall become due and payable with respect to said Condominium following
such recording, and all costs (including attorney's fees), late charges and interest accruing
thereon. When a notice of assessment has been recorded, such assessment shall constitute
a lien on each respective Condominium prior and superior to all other liens, except (i) all taxes,
bonds, assessments and other levies which, by law, would be superior thereto, and (ii) the lien
or charge of any first Mortgage of record.
In the event the delinquent assessments and all other assessments which have
become due and payable with respect to the same Condominium, together with all costs
(including attorney's fees), late charges and interest which have accrued on such amounts, are
fully paid or otherwise satisfied prior to the completion of any sale held to foreclose the lien
provided for in this Article, the Board shall record a further notice, similarly signed, stating the
satisfaction and releasing of such lien.
Each assessment lien may be foreclosed in the same manner as the foreclosure
of a mortgage upon real property under the laws of the State of California, or may be enforced
by sale pursuant to Sections 2924, 2924(b), 2924(c) and 1367 the California CIVIL CODE, and
all other applicable statutes, and to that end a power of sale is hereby conferred upon the
Association. The Association, acting on behalf of the Condominium Owners, shall have the
power to bid for the Condominium at a foreclosure sale, and to acquire and hold, lease,
mortgage and convey the same. Suit to recover a money judgment for unpaid assessments,
rent and attorney's fees shall be maintainable without foreclosing or waiving the lien.
Section 4.13. Subordination of the Lien to First Deeds of Trust and First Mortgages. The
lien of the assessments, interest, costs, attorney's fees and late charges shall be subordinate
to the lien of any first Mortgage upon any Condominium. Sale or transfer of any Condominium
shall not affect the assessment lien. However, the sale or transfer of any Condominium
pursuant to judicial or non-judicial foreclosure of a first Mortgage shall extinguish the lien of
such assessments as to payments which became due prior to such sale or transfer. However,
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the Association may treat as Common Expenses, assessable against all the Condominiums,
any unpaid assessments for which lien rights have terminated. No sale or transfer shall relieve
such Condominium from lien rights for any assessments thereafter becoming due.
Section 4.14. Estoppel Certificate. The Association shall furnish, upon demand by any
person, a certificate signed by an officer of the Association setting forth whether the
assessments on a specified Condominium have been paid. A properly executed certificate of
the Association as to the status of assessments on a Condominium is binding upon the
Association as of the date of its issuance.
Section 4.15. Non-Use of Association Property or Common Area. No Owner shall be
exempt from personal liability for assessments levied by the Association, nor shall any
Condominium be released from the liens and charges of assessments because of the non-use
of the Association Property or Common Area nor because of abandonment of the
Condominium.
Section 4.16. Taxation of Association. In the event that any taxes are assessed against
the Common Area, Association Property or the personal property of the Association, rather
than against the individual Condominiums, the taxes shall be added to the regular assessments
and, if necessary, a special assessment may be levied against the Condominiums in an amount
equal to the taxes, to be paid in two (2) installments, thirty (30) days prior to the due date of
each tax installment.
Section 4.17. Payment of Assessments By Declarant. Except as specifically stated
otherwise in this Article, Declarant shall pay all assessments levied by the Association against
any Condominium owned by Declarant at the same time, in the same manner and in the same
amount as any other Owner.
Section 4.18. Sub-metering of Water. It is currently intended the domestic water will
be supplied to the Living Units through master water meters installed within the Project and
that water and sewer services will be billed to the Association based on readings from the
master meters. However, each Owner will be obligated to reimburse the Association in the
amounts reasonably billed by the Association, or its contracting company, for the cost of the
water and sewer services supplied to the Owner's Living Unit or Exclusive Use Area based on
the reading from the sub-meter which monitors water consumption from the Owner's Living
Unit and Exclusive Use Area(s). In billing each Owner, the Association or its contractor shall
utilize water consumption information from the sub-meters and the billing information which
is provided by the supplier of water and sewer services. Should the supplier of such services
charge penalties for excessive water consumption or should the supplier otherwise charge
different rates for different levels of consumption, the Association may in any reasonable
manner utilize such information in its allocation and determination of reimbursement amounts
pursuant to this Section.
The Association shall have the right to enter into an agreement with a private
water metering service to (a) read the sub-meters, (b) prepare and send the bills and (c) collect
sums billed to each Owner on behalf of the Association. Alternatively, the Association may
itself do any such billing activities for its reimbursement of amounts applicable to each
Condominium. In no event shall the charge for reimbursement for water or sewer services be
considered to be a part of the regular assessments. The reimbursement amounts so billed
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(whether billed by the Association or a private water metering service) shall be the personal
obligation of the persons who owned the Condominium during the period of time the water
being billed for was supplied to the Condominium. The charges for water or sewer services
shall not constitute a lie"n on the Owner's Condominium. No Owner shall interfere with the
reading of such sub-meters nor in any manner change or disconnect such sub-meters. The
Association is hereby granted an easement for it or its agents and contractors to read, repair,
realign or replace such sub-meters, wherever located.
The Association shall have the right to require each Owner to establish an
impound account with the Association or with the private water meter reading service in order
to provide a deposit from which the Owner's water bill can be payed. The amount of such
impound account shall not exceed the Board's good faith estimate of the sums to be billed to
the Owner for two (2) month's service; however, the Board shall have the right to require an
Owner to increase the deposit up to a sum equal to the Board's good faith estimate of the
sums to be billed to the Owner for six (6) month's service in the event Board reasonably
determines the increased deposit would be prudent given the Owner's past payment history.
Section 4.19. Uncompleted Facilities. The Board may (but shall have no obligation to)
exclude from Association regular assessments those portions of budgeted assessments which
are for the purpose of defraying expenses and reserves directly attributable to the existence
of improvements to be maintained by the Association but which are not complete at the time
of the assessment. Any such exemption from assessments shall be in effect only until
completion of the improvements, which may be evidenced by recordation of a notice of
completion for the same.
Section 4.20. Assessments Levied By City. In the event the City performs maintenance
of the Association Property as provided in Section 7.3 (f), the City shall be entitled to
reimbursement from the Owners for the actual costs incurred by the City in performing such
maintenance. After performing such maintenance, the City shall provide an invoice to the
Owners, with a copy to the Association, setting forth the total amount due from each Owner
with respect to such maintenance. The invoice will be accompanied with the 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 the provisions of this Section. If the
Association fails to pay such invoice in full within the period specified, the payment shall be
deemed delinquent and shall be subject to a late charge in the amount equal to six percent
(6%) of the amount of the invoice. Thereafter, the City may pursue collection from the
Association by means of any remedies available at law or 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 Owner of each Condominium in the Project
for an equal pro-rata share of the invoice plus late charge. If any Owner fails to pay such
regular assessments to the City, the City shall have the right to enforce the obligation of an
Owner to pay such assessments in the same manner as the Association with regard to regular
assessments as provided in Section 4.12 of this Declaration and each Owner hereby vests the
City with the right and power to levy such special assessment, to impose a lien upon their
respective Condominium and to bring all legal actions and/or to pursue the lien foreclosure
procedures against any Owner and his or her respective Condominium for purposes of
collecting such special assessment. Each Owner shall be entitled to an offset from the regular
assessments otherwise payable to the Association in an amount equal to the amounts paid to
the City pursuant to this Section.
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Section 4.21. Capitalization of Association. Upon conveyance to a Retail Purchaser of
each Condominium in Phase 1 from Declarant, the Retail Purchaser shall contribute to the
capital of the Associatio'n an amount equal to two times the then regular assessment for that
Condominium as determined by the Board. This amount shall be deposited by the Retail
Purchaser into the purchase and sale escrow and disbursed therefrom to the Association at
close of escrow. Amounts paid pursuant to this Section are not advance payments of assess-
ments and are in addition to and not in lieu of regular and special assessments of the
Association. The capital contributions will be the Association's funds and may not be used
by Declarant to defray its expenses, construction costs or assessments. The obligation to
make capital contributions pursuant to this Section shall apply to each Condominium in Phase
1 only and shall not apply to any Condominium located in any other Phase. This Section shall
not apply to any resales of any Condominium.
ARTICLE V
POWERS AND DUTIES OF ASSOCIATION
The Association shall have those powers and duties set forth in its Bylaws.
ARTICLE VI
USE OF CONDOMINIUMS
Section 6.1. Residential Purposes. Each Condominium shall be improved, used and
occupied for private, single-family dwelling purposes only, and shall be not be used for any
commercial purposes other than home businesses which are allowed by City zoning
ordinances. However, Declarant may use any of the Condominiums owned by Declarant as
model homes, design centers, construction offices and sales offices until all the Condominiums
in all Phases of the Project are sold and conveyed by Declarant to Retail Purchasers.
Section 6.2. Lease of Condominium. Each Owner shall have the right to lease the
Owner's Condominium provided that such lease is in writing. Each tenant shall be bound by
and obligated to the provisions of this Declaration, the Bylaws and the rules and regulations
of the Board, and a tenant's failure to do so shall be deemed a default under the lease. No
Owner shall lease a Condominium for transient or hotel purposes and no Condominium shall
be leased for a term less than twenty-six (26) days. Should the Board so request an Owner
to do so, the Owner shall forward an executed copy of a lease to the Owner's Condominium
to the Board together with the telephone number and street address of the residence of the
Owner. Other than as provided in this Section, there shall be no restriction on the right of any
Owner to lease a Condominium.
Section 6.3. Use Not to Impair Insurance. No Condominium shall be occupied,
improved or used for any purpose or in any manner which shall cause such Condominium or
any Condominium to be uninsurable against loss by fire or the perils of the extended coverage
endorsement to the California Standard Fire Policy form, or cause any such policy or policies
representing such insurance to be cancelled or suspended, or the company issuing the same
to refuse renewal thereof or to increase the premium therefor.
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Section 6.4. Animals. No animals of any kind shall be raised, bred or kept on the
Project except that a reasonable number of dogs, cats or other household pets may be kept,
provided that they are 'not kept, bred or maintained for any commercial purpose, nor in
violation of any other provision of this Declaration. A "reasonable number" as used in this
Section shall ordinarily include no more than an aggregate of two (2) dogs and cats per
household; provided, however, a reasonable number in any instance may be more or less
depending on whether the pets constitute a nuisance to other Owners. Animals belonging to
Owners, occupants or their licensees, tenants or invitees within the Project must be either kept
within an enclosed area (Living Unit, Balcony or Patio) or on a leash being held by an individual
capable of controlling the animal. Each Owner shall be liable to each and all remaining Owners,
their families, guests, tenants and invitees, for any unreasonable noise or damage to person
or property caused by any animals brought or kept upon the Project by the Owner or by
members of his or her family, his or her tenants or his or her guests; and it shall be the duty
and responsibility of each Owner to immediately clean up any waste from his or her animals.
Section 6.5. Nuisance. No Condominium shall be used in such manner as to obstruct
or interfere with the enjoyment of occupants of other such areas or annoy them by
unreasonable noise or otherwise, nor shall any nuisance be committed or permitted to occur
in any portion of the Project. Ordinary and usual techniques of construction of Improvements
permitted hereunder shall not be deemed a nuisance. Any violation of the Section above
entitled "Animals" or ordinances or regulations of the City of Carlsbad is hereby declared to
be a nuisance.
Section 6.6. Sign Control. An Owner may place one (1) sign of reasonable and
customary dimensions in the window of the Owner's Living Unit to advertise the Condominium
. for sale or rent. No other signs may be placed anywhere in the Project without the prior written
permission of the Architectural Committee. All signs must conform with applicable City of
Carlsbad ordinances. No signs shall be erected or displayed anywhere in the Project except
signs placed by authority of the Board. Anything contained in this Declaration to the contrary
notwithstanding, Declarant shall have the right to install and maintain in any Condominium
owned or leased by it, on the Association Property and Common Area during the sales period
set forth in Section 6.1 above, such signs, poles, flags, banners and advertisements as it
deems appropriate in connection with its sales program for the sale to the public of
Condominiums.
Section 6.7. Outside Antennae. There shall be no outside television or radio antennae,
masts, satellite dishes, transmitter tower or facility, poles or flag poles (other than poles or flag
poles installed and maintained by Declarant in connection with its sales program for the period
set forth in Section 6.1 above) constructed, installed or maintained in the Project for any
purpose whatsoever without approval of the Architectural Committee. However, in
considering whether to approve an antenna or to impose requirements on such approval, the
Architectural Committee shall not violate any applicable law or regulation, including, but not
limited to any law of the State of California or applicable regulations of the Federal
Communications Commission.
Section 6.8. No Owner Modification to Association Property or Common Area. Except
as otherwise specifically provided in this Declaration, no Owner shall have the right to alter,
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paint, decorate, remodel, landscape or adorn any part of the Association Property or Common
Area without the written consent of the Board.
Section 6.9. No' Offensive Activity. No noxious or offensive activity shall be carried
on in the Project, nor shall anything be done in the Project which may be or become an
annoyance or nuisance to the others within the Project. However, construction or repair of
improvements made at the Board's instruction or at Declarant's instruction shall be permitted.
Nothing shall be done in any Condominium or elsewhere in the Project which will impair the
structural integrity of any building. Except as otherwise provided in this Declaration, nothing
shall be altered or constructed in or removed from the Association Property or Common Area,
except upon the written consent of the Board. All equipment, garbage cans, wood piles or
storage piles shall be kept screened and concealed from view of neighboring Condominiums,
streets, Association Property and Common Area. All rubbish, trash or garbage shall be regularly
removed from each Condominium and shall not be allowed to accumulate in the Project. No
fences, hedges or walls shall be erected or maintained in the Project except such as are
installed in accordance with the initial construction by Declarant or as provided by the
Architectural Committee. No exterior clothes lines shall be erected or maintained, and there
shall be no outside drying or laundering of clothes in an Exclusive Use Area or other portion
of the Association Property or on the Common Area except in areas (if any) which may be
approved by the Board.
Section 6.10. Power Equipment. No power equipment, hobby shops or car maintenance
(other than emergency work) shall be permitted in the Project except with prior written
approval of the Board. Approval shall not be unreasonably withheld and in deciding whether
to grant approval the Board shall consider the effects of noise, air pollution, dirt or grease, fire
hazard, interference with radio or television reception, and similar objections. Construction or
repair of improvements at Declarant's request shall not require such approval.
Section 6.11. Use of Association Property and Common Area. Except as otherwise
provided in this Declaration, the Association Property and Common Area shall be improved and
used only for the following purposes:
(a) Affording vehicular passage and pedestrian movement within the Project,
including access to the Condominiums;
(b) Recreational use by the Owners and occupants of Condominiums and
their guests, subject to rules established by the Board;
(c) Beautification of the Project and providing privacy to the residents of the
Project through landscaping and such other means as the Board shall deem appropriate;
(d) Parking of automotive passenger vehicles in areas provided therefor as
may be designated and approved by the Board by such persons, upon such terms and
conditions as may from time to time be determined by the Board; the rules and
regulations of the Board may be enforced by the Board, which shall have the right and
power to remove vehicles from the Project at the cost of the vehicle owner and to levy
monetary penalties as provided in this Declaration;
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(e) As Exclusive Use Areas to be used in the manner described in this
Declaration or a Declaration of Annexation;
(f) By Declarant for marketing and construction activities; and
(g) Those additional purposes which may be allowed by the Board or as
provided in this Declaration.
No Owner shall use or interfere with use of the Common Area or Association Property in any
manner which shall increase the Association's cost of insurance or which shall result in
cancellation of insurance or making insurance unavailable.
Section 6.12. Owners Liable for Damage. Each Owner shall be legally liable to the
Association for all damages to the Project, including but not limited to, the buildings, recrea-
tional facilities and landscaping caused by such Owner, such Owner's guests (or other
licensees) or any occupant of such Owner's Living Unit as such liability may be determined
under California law. Each Owner shall be responsible for compliance with the provisions of
this Declaration, the Bylaws and rules and regulations of the Board by such Owner's licensees
and occupants of such Owner's Condominium.
Section 6.13. Decorating by Owner. Each Owner shall have the right, at the Owner's
sole cost and expense, to maintain, repair, paint, paper, panel, plaster, tile and finish the
interior surfaces of the ceilings, floors, window frames, door frames, trim and perimeter walls
of the Owner's Living Unit, and the surfaces of the bearing walls and partitions located within
the Living Unit. Such Owner shall have the right to substitute new finished surfaces in place
of those existing on the ceiling, floors, walls and doors of his or her Living Unit. Windows shall
be covered only by drapes, curtains and shades, and shall not be painted or covered by
aluminum foil, paper, bed sheets or similar materials. Each Owner shall have the obligation to
keep in good repair all items mentioned in this Section.
Section 6.14. No Impairment of Structures. No Owner shall make any change to his or
her Condominium which would adversely affect the structural integrity of the building.
Section 6.15. Exclusive Use Areas. Each Exclusive Use Area shall be appurtenant to the
Living Unit it serves. Conveyance of a Living Unit will automatically convey all appurtenant
Exclusive Use Areas. No Owner shall make any improvements to an Exclusive Use Area unless
such improvements have been approved or pre-approved by the Architectural Committee.
Section 6.16. Use of Exclusive Use Areas. Each Owner shall be entitled to use any
Exclusive Use Area appurtenant to the Owner's Living Unit for usual and ordinary residential
purposes for which such area was designed.
(a) Each Owner shall be entitled to the Balcony Exclusive Use Area, if any,
which is appurtenant to the Owner's Living Unit for Balcony purposes. Should potted
plants be placed on a Balcony, the Owner must take adequate steps to capture water
from such potted plants and to prevent any damage to the Common Area or another
Living Unit or to prevent unsightly conditions. The Board shall have the right to restrict
pots or other items from being placed on top of any fence or railing, or to allow the
potted plants to grow on the exterior of a Balcony or other portions of the building. Each
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Owner shall be responsible to pay for the repairs of any damage which may be caused
by the placing of potted plants or other items on the Balcony.
(b) Each Owner shall have the right to use his or her Patio for residential
patio purposes and an Owner may install such improvements in his or her Patio as are
permitted by the Architectural Committee. Each Owner shall be responsible to maintain
and repair any subsurface drainage improvements installed by Declarant in the Owner's
Patio unless the Association has assumed such maintenance. No Owner shall interfere
with the surface or. any subsurface drainage of his or her Patio as established by
Declarant nor shall any Owner install any Patio improvements which would make it
impractical to repair or replace subterranean drainage installed by Declarant within such
Owner's Patio. All improvements installed by an Owner in his or her Patio shall provide
for proper and adequate drainage.
(c) Each Owner shall have the right to use his or her Entry for entry into his
or her Living Unit and an Owner may install such improvements in his or her Entry as are
permitted by the Architectural Committee. Each Owner shall be responsible to maintain
and repair any subsurface drainage improvements installed by Declarant in the Owner's
Entry unless the Association has assumed such maintenance. No Owner shall interfere
with the surface or any subsurface drainage of his or her Entry as established by
Declarant nor shall any Owner install any Entry improvements which would make it
impractical to repair or replace subterranean drainage installed by Declarant within such
Owner's Entry. All improvements installed by an Owner in his or her Entry shall provide
for proper and adequate drainage.
(d) No Owner shall place any items on his or her Exclusive Use Area which
are within the view of another Owner(s) and which the Architectural Committee deems
to be unsightly. For example, and not by way of limitation, the Architectural Committee
shall have the right to adopt regulations which disallow bicycles from being stored on a
Balcony, Patio or Entryway.
(e) No Owner shall make any improvements to his or her Exclusive Use Area
unless and until the Architectural Committee has approved plans of such improvements
showing such detail as the Architectural Committee or its consultant deems appropriate.
Any such approval may be conditional. The Architectural Committee shall have sixty (60)
days to approve or disapprove such plans from the date the plans, in form required by the
Architectural Committee, are received by the Architectural Committee. Failure of the
Architectural Committee to approve or disapprove the plans within such sixty (60) day
period shall be deemed an approval. The Architectural Committee shall have the right to
hire a civil engineer, landscape architect or other expert consultant as the Architectural
Committee deems appropriate to evaluate plans and inspect the improvements. The
Owner shall be required to pay the cost of such consultant. The Architectural Committee
may require an Owner to deposit the estimated cost of such consultant at the time plans
are submitted for Architectural Committee approval.
(f) Each Owner assumes all risks which may result from improvements he
or she makes to his or her Exclusive Use Area(s) and each Owner indemnifies and holds
harmless the Association, the Architectural Committee, Declarant and each other Owner
from any claim, demands, liabilities, judgments, attorney's fees and other obligations
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which arise out of or are incurred in connection with the installation, existence or removal
of improvements.
(g) The Board or Architectural Committee shall have the right to restrict
those activities and improvements which it believes would have adverse structural,
drainage or maintenance impacts or adverse visual or noise impacts on other Owners.
(h) The Board and the Architectural Committee shall have the right to allow
Owners to exclusively use portions of the Association Property or Common Area above
or below the vertical limits of any Exclusive Use Area.
Section 6.17. Garages. Each Owner shall have the right to use any garage portion of
the Owner's Living Unit for parking of automotive vehicle(s) (including cars, passenger vans
and trucks) and the storage of non-hazardous materials. Neither the Association nor any Owner
shall convert any garage to any use which prevents its use for vehicular parking of the number
of vehicles used by the Owner. However, nothing herein stated is intended to disallow
Declarant from converting garage area to living area.
Section 6.18. Outside Parking. The Board shall have the right, but not the obligation,
to assign the right to use parking spaces within the Association Property and Common Area
(which are. not within an Exclusive Use Area) to one or more Owners for such periods and on
such terms as the Board deems appropriate. Should the Board decide to make such
assignments, it shall generally do so on a first come, first served basis, but the Board may
consider such factors as the Board deems relevant. The Association may charge a fee for
assigning the right to use an outside parking space.
No dune buggy, boat, trailer, recreational vehicle, mobile home, motor home,
van, camper shell which is detached from a vehicle or otherwise mounted on a vehicle, nor
truck which (a) is larger than one ton capacity, or (b) has a mounted camper shell which
protrudes from the truck from either side or from beyond the rear gate or above the cab
ceiling, shall be parked within any private street or anywhere else in the Project where visible
to other Owners unless the Board expressly allows otherwise. Commercial vehicles shall be
permitted within the Project for purposes of making deliveries and similar purposes, provided
the same conform to rules which may be established by the Board. No dismantled or wrecked
vehicle or equipment shall be parked, stored or deposited within the Project and no vehicle
shall be repaired within the Project.
Section 6.19. Right of Access. Each Owner shall have the right of reasonable access
for egress and ingress to and from such Owner's Living Unit (including, but not limited to the
garage portion) and Exclusive Use Areas.
Section 6.20. Window Coverings. Unless Declarant has done so, each Owner shall,
within one hundred twenty (120) days after close of escrow for his or her Condominium, install
window coverings on all windows of his or her Living Unit which are visible from any public
or private street. The exterior appearance of such window coverings must be consistent with
Section 6.13 and any requirements promulgated by the Architectural Committee.
Section 6.21. Sight Distance Corridors. The Association and the Owner of each
affected area shall at all times comply with sight distance requirements established by the
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City. Mature vegetation within the sight line area of all intersections shall be no greater than
30" in height or have a canopy no less than 8' in height. No structure, fence, wall, sign or
other object over 30 inches above the street level shall be placed or permitted to encroach
within the area identified as a sight distance corridor in accordance with City Standards and
the conforming mylar tentative map of the Carlsbad Tract 98-15. The applicable Owner or the
Association shall comply with these requirements.
Section 6.22. City Requirements: Fire Suppression Zones. The Association and each
Owner shall at all times comply with the City of Carlsbad requirements, including, but not
limited to its fire suppression requirements. The City's fire suppression requirements may
include restrictions on the types, materials and locations of improvements within the Project.
Section 6.23. Post-Tensioned Slabs. It is anticipated that some or all of the residences
within the Project may be constructed with post-tensioned concrete slabs ("System") because
of soils conditions. The System involves placing steel cables under high tension in the concrete
slab located beneath the residence. Each Owner shall be responsible for determining whether
his or her residence has been constructed with a System. Any attempt by an Owner or other
person to alter or pierce the foundation (e.g., saw cutting or drilling to install a floor safe) could
damage the integrity of the System and/or cause serious injury or damage to persons and
property. No Owner shall cut into or otherwise disturb the System. Neither Declarant nor any
contractor of Declarant shall be responsible for any damage or injury resulting from or arising
in connection with any alteration or piercing of the slab or the foundation of any residence.
Each Owner shall hold Declarant harmless from and indemnify Declarant against all claims,
demands, losses, costs (including attorney's fees), obligations and liabilities arising out of or
in connection with the failure of the Owner to comply with the provisions of this Section.
Section 6.24. No Over Irrigation. The Association shall not over irrigate the Association
Property or the Common Area or allow irrigation or water delivery systems to fall into disrepair.
No Owner shall carelessly use water, allow overflow of water or over irrigate any plants within
his or her Entry, Balcony or Patio Exclusive Use Area or Living Unit. The excess water may
cause substantial damage to the Project.
Section 6.25. Trash Drop Off Locations. Certain portions of the Association Property
may be designated as trash container drop off locations by the Board. The residents within
the Project are required to place their trash containers at such locations during designated time
periods. The Board may adopt rules and regulations regarding the trash container drop off and
pick-up policies. The Board may also adopt rules and regulations to designate such Association
Property for guest parking spaces on the days such areas are not utilized for container drop
off locations.
Section 6.26. No Discharging of Toxic Chemicals. Toxic chemicals or hydrocarbon
compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood
preservatives and other such fluids shall not be discharged into any street or drive, public or
private, or into any storm drain or storm water conveyance systems. Use and disposal of
pesticides, fungicides, herbicides, insecticides, fertilizers and other such chemical treatments
must, as prescribed in their respective containers, meet Federal, State, County and City
requirements.
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Section 6.27. Construction and Sales Activities. The development, construction,
marketing and sales activities of Declarant are exempt from the covenants, restrictions and
limitations set forth in this Article. None of the covenants, restrictions and limitations set forth
in this Article or elsewhere in this Declaration shall be applied to the development,
construction, marketing or sales activities of Declarant or construed in such a manner as to
prevent or limit development, construction, marketing or sales activities by Declarant.
ARTICLE VII
RESPONSIBILITIES OF MAINTENANCE
Section 7.1. Maintenance by Owners. Each Owner of a Condominium shall be
responsible for the maintenance and repair of:
(a) The windows and the interior surfaces of doors enclosing the Living Unit,
including the vinyl or metal frames, tracks and exterior screens of glass doors and
windows.
(b) The interior of the Living Unit and all appliances whether "built-in" or
freestanding within the Living Unit.
(c) The plumbing, electrical, cable television, water heating systems, heating
systems and air conditioning systems (if any), any photo cell sensor porch entry lighting
fixtures, and other systems servicing the Owner's Condominium and located either within
or without the outside perimeter of the exterior walls, floors and ceilings thereof, so long
as those systems are used exclusively by such Owner and not in common. For example,
each Owner shall be responsible to maintain any automatic garage door opener for his or
her garage. Declarant hereby reserves an easement to allow such systems to be located
within the Association Property and Common Area in those locations where installed by
Declarant. No Owner may permanently remove the photo cell sensor porch entry lighting
fixtures servicing his or her Living Unit.
(d) The maintenance and repair of the interior surfaces and drainage systems
of any Balcony which the Owner has the exclusive right to use. For example, the Owner
shall be responsible for re-surfacing his or her Balcony and shall keep his or her Balcony
free from all trash and debris. All drainage systems for a Balcony shall be in good working
condition at all times. The Association shall be responsible to paint and maintain both the
exterior and interior surfaces of any open railings such as iron or tubular steel railings.
(e) The routine maintenance (for example, sweeping and cleaning) of any
Exclusive Use Area appurtenant to the Condominium, including the removal of any oil
stains on any Balcony which the Owner has the exclusive right to use. An Owner shall
also be responsible to maintain, repair and replace when appropriate, any improvements
which the Owner makes to his or her Exclusive Use Area.
(f) All Patio improvements. All such improvements shall be maintained in
good condition and appearance, free from weeds, trash and debris, and all drainage
systems for a Patio shall be kept in good working condition at all times.
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(g) The interior of any fences and walls which separate the Owner's Patio
from Common Area or Association Property.
(h) Should a fence or wall exist between two Patios, the cost of
maintenance, repair and replacement of such fence or wall shall be shared equally by the
Owners of the two adjoining Patios.
Section 7.2. Failure to Maintain. In the event an Owner defaults in his or her
maintenance or repair obligations, the Board may give written notice of such default, stating
with particularity the work of maintenance or repair the Board finds to be required and
requesting the same be completed in a reasonable period of time as specified in the notice. In
the event the Owner fails to complete such maintenance or repair within the period specified
in the notice, the Board may cause such work to be completed and assess the Owner the cost
thereof.
Section 7.3. Maintenance by Association. The Association shall maintain the
Association Property and Common Area (except for those items of maintenance which the
Owner is required to perform pursuant to Section 7.1 above). The Association shall be
responsible for the maintenance and repair of the structure and exterior of each wall or fence
separating the Entries or Patios from Common Area or Association Property. The Association's
maintenance obligations include, but are not limited to the following amenities and utilities:
Private streets, private sidewalks, private street lights, private storm drains and any other
private utilities or amenities.
(a) The Association shall maintain any subterranean drainage improvements
which are located within an Exclusive Use Area only if such improvements are identified
on a Condominium Plan for Association maintenance; otherwise the Owner of the
Exclusive Use Area shall be responsible to maintain any subterranean drainage facilities
located within such Owner's Exclusive Use Area.
(b) The Association shall maintain all concrete terrace drains and other
drainage systems (if any) which are located on Association Property or Common Area.
(c) All landscaping within the Association Property or Common Area shall
be maintained in a healthy and thriving condition, free from weeds, trash and debris.
(d) The Association shall maintain any parkways, street mediums or other
public areas within or adjoining the Project which the City requires to be maintained by
the Association.
(e) The Association shall maintain an ongoing program to remove dirt, litter
and other debris from the surface of private streets and the recreational area by means
of street sweeping and other suitable means which shall be established and enforced.
The Association shall coordinate the programs established by the City from time to time
to assist Owners with the removal and proper disposal of toxic and hazardous waste
products. As stated in Section 6.26 above, toxic chemicals or hydrocarbon compounds
such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood
preservatives and other such fluids shall not be discharged into any street or drive, public
or private, or into any storm drain or storm water conveyance systems. Use and disposal
of pesticides, fungicides, herbicides, insecticides, fertilizers and other such chemical
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treatments must, as prescribed in their respective containers, meet Federal, State, County
and City requirements. Best Management Practices shall be used to eliminate or reduce
surface pollutants when planning any changes to the landscaping and surface
improvements.
(f) If the Association fails to maintain all or any portion of the Association
Property in accordance with this Article, the City shall be entitled to give written notice
to the Association, with a copy to the Owners, setting forth with particularity the work
of maintenance or repair which the City finds to be required and requesting that the same
be carried out by the Association within a period of thirty (30) days after the
Association's receipt of such notice (or such longer time period as the City may specify
in such notice). If the Association fails to carry out such maintenance or repair within the
period specified above, the City shall have the right, but not the obligation, to cause such
work to be completed and shall be entitled to reimbursement of the costs incurred in
connection therewith from the Owners, as provided in Section 4.20.
Section 7.4. Reimbursement. Each Owner shall reimburse the Association for
those costs incurred which result from the Condominium occupants' excessive or neglectful
use of the Exclusive Use Area or other portions of the Common Area or Association Property.
Section 7.5. Wood-Destroying Pests. The Association shall be responsible for the
repair and maintenance of the Association Property and Common Area occasioned by the
presence of wood-destroying pests or organisms; provided, however, it shall be the
responsibility of each Owner to maintain and repair any improvements which may have been
added by such Owner to the Owner's and/or Exclusive Use Area. The Association may cause
the temporary, summary removal of any occupant of the Project for such periods and at such
times as may be necessary for prompt, effective treatment of wood-destroying pests or
organisms. The costs of temporary relocation during the repair and maintenance by the
Association shall be borne by the affected Owners and not the Association.
The Association shall give notice of the need to temporarily vacate a residence
to the occupants and to the Owner, not less than fifteen (15) days nor more than thirty (30)
days prior to the date of the temporary relocation. The notice shall state the reason for the
temporary relocation, the date and time of the beginning of treatment, the anticipated date
and time of termination of treatment, and that the occupants will be responsible for their own
accommodations during the temporary relocation. Notice by the Association shall be deemed
complete upon either:
(a) Personal delivery of a copy of the notice to the occupants, and sending
a copy of the notice to the Owner, if different than the occupants, by first-class mail,
postage prepaid at the most current address shown on the books of the Association; or
(b) By sending a copy of the notice to the occupants at the residence
address and a copy of the notice to the Owner, if different than the occupants, by first-
class mail, postage prepaid at the most current address shown on the books of the
Association.
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ARTICLE VIII
SEPARATION OF INTERESTS AND PARTITION PROHIBITED
Section 8.1. No Separation of Interests. No Owner may sell, assign, lease or convey
any portion of his or her Condominium separate or apart from the entire Condominium. Any
conveyance, encumbrance, judicial sale or other transfer (voluntary or involuntary) of any
portion of his or her Condominium separate or apart from the entire Condominium shall be
void.
Section 8.2. No Partition. There shall be no termination of the Project and the Common
Area of the Project shall remain undivided with no judicial partition thereof except:
(a) With the approval, after substantial destruction or condemnation of the
Project occurs, of at least sixty-seven percent (67%) of the total voting power of the
Association and approval by Eligible Mortgage Holders who represent at least fifty-one
percent (51%) of the Condominiums that are subject to Mortgages held by Eligible
Mortgage Holders; or
(b) With the approval, for reasons other than substantial destruction or
condemnation of the Project, of at least sixty-seven percent (67%) of the total voting
power of the Association and approval by Eligible Mortgage Holders who represent at
least sixty-seven percent (67%) of the Condominiums that are subject to Mortgages held
by Eligible Mortgage Holders; or
(c) As allowed by California law, including California CIVIL CODE Section
1359, as the same may be amended from time to time.
An Eligible Mortgage Holder who receives a written request to give such
approvals who does not deliver or mail the requesting party a negative response within thirty
(30) days shall be deemed to have given such approval provided such written request was
delivered by certified mail or registered mail with "return receipt" requested.
Nothing in this Section shall be deemed to prohibit partition of a cotenancy in
a Condominium.
Section 8.3. Power of Attorney. The Association is hereby granted an irrevocable
power of attorney to sell the Project for the benefit of all the Owners thereof when partition
of the Owners' interests in the Project may be had pursuant to this Article. The power of
attorney herein granted may be exercised upon the vote or written consent of Owners who
own at least fifty percent (50%) of the Condominiums in the Project. Such power of attorney
may be exercised by any two (2) Members of the Board who are hereby authorized to record
a certificate of exercise in the Office of the County Recorder of the County of San Diego,
which certificate shall be conclusive evidence thereof in favor of any person relying thereon
in good faith.
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ARTICLE IX
DAMAGE. DESTRUCTION AND CONDEMNATION OF
COMMON AREA OR ASSOCIATION PROPERTY
Section 9.1. Damage or Destruction. If any portion of the Common Area or Associa-
tion Property is damaged or destroyed by fire or other casualty, then:
(a) If the cost of repairing or rebuilding does not exceed the amount of
available insurance proceeds by more than five percent (5%) of the budgeted gross
expenses of the Association, the Board shall contract to repair or rebuild the damaged
portions of the Common Area or Association Property. Such repair or rebuilding will be
in substantial accordance with the original construction unless it is impractical to do so.
(b) If the cost of repairing or rebuilding exceeds the amount of available
insurance proceeds by more than five percent (5%) of the budgeted gross expenses of
the Association, then:
(i) The Board shall obtain at least two competitive bids for the repair
or rebuilding not more than forty-five (45) days after such damage occurs;
(ii) The Board shall use its best efforts to cause a special meeting of
the Members to occur no later than ninety (90) days after such damage occurs.
The notice of such meeting shall state that the reason for the meeting is to
consider repair or rebuilding the portion of the Project which was damaged and
whether to impose a special assessment to repair or rebuild. Such notice shall
be accompanied with a summary of the competitive bids for repair or replace-
ment.
(iii) Unless a majority of the voting power of the Association votes
against the Board doing so, the Board shall within one hundred and eighty (180)
days after such damage enter into a contract for repair or replacement and
impose special assessments therefor pursuant to its Resolution to do so in
accordance with Paragraph (c) of Section 4.3 above. For purposes hereof, a
"Majority of the voting power of the Association" means: (A) a majority of the
voting power of each Class of Members if the two-class voting structure is in
effect, or (B) a majority of the total voting power if only one-class voting is in
effect.
(iv) Nothing herein stated is intended to prevent the Board from
repairing or replacing the Common Area or Association Property and imposing
a special assessment therefor pursuant to its authority to do so in accordance
with Paragraph (a) or (b) of Section 4.3 above.
(c) If the Owners vote to not repair or rebuild the Common Area or
Association Property, then each Owner (and the Owner's Mortgagee(s) as their respective
interests shall then appear) shall be entitled to receive that portion of insurance proceeds
equal to the proportion of the decrease in fair market value of the Owner's Condominium
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as compared to the aggregate decrease in fair market values of all the Condominiums in
the Project caused by such damage or destruction. Fair market value shall be determined
by an MAI (Member Appraisal Institute of the American Institute of Real Estate
Appraisers) appraiser selected by the Board and hired by and at the expense of the
Association. Should a dispute arise as to the distribution of insurance proceeds, the
dispute shall be decided by arbitration by the American Arbitration Association pursuant
to its Commercial Rules of Arbitration.
(d) If a bid to repair or rebuild is accepted, the Board shall levy a special
assessment against each Condominium pursuant to Section 4.7 above for purposes of
raising funds for the rebuilding or repair and to make up any deficiency between the total
insurance proceeds and the contract price for such repair and rebuilding, and such
assessment and all insurance proceeds, whether or not subject to liens of Mortgagees,
shall be paid to the account of the Association to be used for such rebuilding.
(e) This Article shall not apply to any destruction of a Phase unless and until
a Condominium has been conveyed in such Phase. Prior to any such conveyance within
a Phase, the Association shall have no right or obligation to insure or repair the improve-
ments of such Phase and no Owner but Declarant shall be entitled to the proceeds of any
insurance carried by Declarant.
Section 9.2. Condemnation. If any portion of the Common Area in any Phase is taken
by condemnation, eminent domain or any proceeding in lieu thereof, then all the Owners in all
Phases of the Project, and their Mortgagees as their respective interests then appear, shall be
entitled to receive a distribution from the award for such taking in the same proportion as
insurance proceeds would be distributed pursuant to Subsection (c) of the Section above
entitled "Damage or Destruction"; provided, however, that should it be determined to repair
or rebuild any portion of the Common Area, such proceeds shall be paid to the Association for
that purpose in the same manner and subject to the same terms, conditions and limitations as
are set forth above in this Article for repairing damaged or destroyed portions of the Common
Area. A decision to repair or rebuild shall be made in the same manner and subject to the same
conditions and limitations as provided above in this Article for determining whether to rebuild
or repair following damage or destruction.
Section 9.3. insurance. The Association shall obtain and continue in effect at least the
following insurance:
(a) A master fire insurance policy with glass coverage and extended
coverage endorsement for one hundred percent (100%) of the current replacement cost
of all of the Common Area and Association Property improvements within the Project,
excluding land, foundations, excavations and other items that are usually excluded from
insurance coverage. The maximum deductible amount shall be the lesser of $10,000 or
one percent (1%) of the policy face amount. The Association shall have no right or
obligation to obtain such insurance for a Phase unless and until the first conveyance of
a Condominium in such Phase. "Improvements" means and refers to the Association
Property and Common Area together with those appliances and improvements located
within the Living Units provided by Declarant to the initial Owners of Condominiums and
does not include items not provided by Declarant. The form and content of such policy
must satisfy the requirements of the Federal National Mortgage Association ("FNMA")
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and the Federal Home Loan Mortgage Corporation ("FHLMC") and shall contain the
following endorsements:
(i) • An Inflation Guard Endorsement, when it can be obtained.
(ii) A construction code endorsement, if there is a construction code
provision that would require changes to undamaged portions of the building(s)
even when only part of a building is destroyed by an insured hazard (typical
endorsements include Demolition Cost Endorsements, Contingent Liability From
Operation of Building Laws Endorsement and Increased Cost of Construction
Endorsement).
(iii) A Special Condominium Endorsement which states the policy shall
provide that any insurance trust agreement will be recognized; the right of
subrogation against Owners will be waived; the insurance will not be prejudiced
by any acts or omissions of Owners that are not under the control of the
Association; and the policy will be primary, even if an Owner has other
insurance that covers the same loss.
(b) A comprehensive general liability and property damage insurance policy
with cross liability endorsement, if available, insuring the Association, any manager, the
D.eclarant, and the Owners against liability incident to ownership or use of the
Association Property and Common Area. The limits of such insurance shall not be less
than $3 Million covering all claims for death, personal injury and property damage arising
out of a single occurrence. The form and content of the comprehensive general liability
policy must satisfy the requirements of FNMA and FHLMC.
(c) A policy insuring the Association's officers and directors against liability
for their negligent acts or omissions while acting in their capacity as officers and
directors. The limits of such insurance shall be not less than $1 Million for all claims
arising out of a single occurrence.
(d) Section 1365.7 of the California CIVIL CODE provides for a partial
limitation on the liability of volunteer officers and directors of the Association who reside
in a Living Unit, provided that certain requirements, as set forth in the Code section, are
satisfied. The requirements include that general liability insurance and insurance covering
individual liability of officers and directors for negligent acts or omissions be carried by
the Association in specified amounts. The Association shall maintain general liability
insurance and insurance covering individual liability of officers and directors for negligent
acts or omissions in amounts which satisfy the requirements of the Code to limit the
liability of volunteer officers and directors of the Association.
(e) A fidelity bond covering members of the Board, officers and employees
of the Association and employees of any manager or managing agent, whether or not
such persons are compensated for their services, naming the Association as obligee and
written in an amount equal to at least three (3) months' aggregate regular assessments
(including reserves) by the Association against all Condominiums then subject to
assessment.
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(f) Workers' compensation insurance covering any employees of the
Association.
(g) A standard all risk of loss perils insurance policy under an extended
coverage casualty policy for the full insurable value of all insurable improvements to the
Association Property, a policy covering all loss to personalty owned by the Association
insured with coverage in the maximum insurable fair market value of such personalty as
determined annually by an insurance carrier selected by the Association. Insurance
proceeds for improvements in the Association Property and personalty owned by the
Association shall be payable to the Association.
Insurance premiums for the master policy and other insurance obtained by the
Association (other than the cost of indorsements which cover only particular Owners) shall be
a Common Expense to be included in the regular assessments levied by the Association. Each
Owner shall be responsible to pay any deductible amount for any loss to his or her
Condominium. Each Owner may separately insure the improvements not covered by the master
fire insurance policy and personal property within the Owner's Condominium. However, no
Owner shall insure a Condominium in any manner which would cause any diminution in
insurance proceeds from the master policy. Should any Owner violate this provision the Owner
shall be responsible to the Association for any such diminution.
All insurance policies shall provide that they shall not be cancelable by the
insurer without first giving at least ten (10) days prior notice in writing to the Association and
the servicer of each first Mortgage which requests such notice, and shall contain a waiver of
subrogation by the insurers against the Association, Board and Owners.
The Association shall maintain such insurance coverage as may be required by
FNMA or FHLMC so long as either FNMA or FHLMC respectively holds a Mortgage on or owns
any Condominium.
Nothing herein stated shall prevent the Association from obtaining additional
amounts of insurance or from adding to the items covered by a master policy.
Section 9.4. Mortgagee Approval. Any restoration or repair of the Project, after a
partial condemnation or damage due to an insurable hazard, shall be performed substantially
in accordance with original plans and specifications, unless other action is approved by Eligible
Mortgage Holders of first Mortgages on Condominiums which have at least fifty-one percent
(51 %) of the votes of Condominiums subject to Eligible Mortgage Holders' Mortgages.
ARTICLE X
DAMAGE. DESTRUCTION AND CONDEMNATION
OF SEPARATE INTERESTS
Section 10.1. Damage or Destruction. In the event of damage or destruction to any
Living Unit or Exclusive Use Area improvements which the Owner is obligated to maintain, the
Owner shall reconstruct the same as soon as reasonably practicable (unless the Association
is not required to repair surrounding damaged Association Property or Common Area pursuant
to the terms of Article IX above). The Owner shall be entitled to the benefit from an equitable
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distribution of the master policy of casualty insurance referred to in Article IX above to the
extent the distribution covers the damage or destruction of elements of the Condominium
which are the obligation of the Owner to repair as provided in this Section.
Section 10.2. Condemnation. In the event of any taking of a Living Unit or Exclusive
Use Area, the Owner of the Condominium (and such Owner's Mortgagees as their interests
may appear) shall be entitled to receive the award for such taking and after acceptance thereof
the Owner and the Owner's Mortgagee shall be divested of all further interest in the Project
and membership in the Association if such Owner shall vacate the Condominium as a result
of such taking of the Living Unit. In such event the Owner shall grant the Owner's remaining
interest in the Common Area appurtenant to the Living Unit-so taken, if any, to the other
Owners owning a fractional interest in the same Common Area, such grant to be in proportion
to the fractional interest in the Common Area then owned by each.
Section 10.3. Mortgagee Approval. Any restoration or repair of the Project, after a
partial condemnation or damage due to an insurable hazard, shall be performed substantially
in accordance with original plans and specifications, unless other action is approved by Eligible
Mortgage Holders of first Mortgages on Condominiums which have at least fifty-one percent
(51 %) of the votes of Condominiums subject to Eligible Mortgage Holders' Mortgages.
ARTICLE XI
CONDEMNATION OF ASSOCIATION PROPERTY
In the event the Association Property or any portion thereof shall be taken for public
purposes of condemnation as a result of any action or proceeding in eminent domain, or shall
be transferred in lieu of condemnation to any authority entitled to exercise the power of
eminent domain, then the award or consideration for such taking or transfer shall be paid to
and belong to the Association.
ARTICLE XII
ASSOCIATION'S RIGHT OF ENTRY
For the purpose of performing the maintenance of the Association Property and Common
Area or for any other purpose reasonably related to the performance by the Board of its
responsibilities under this Declaration, the Association's agents or employees shall have the
right to enter any Living Unit, Exclusive Use Area or upon any portion of the Association
Property and Common Area to effect repairs, improvements, replacements or maintenance as
necessary; provided, however, except in case of an emergency, there shall be no entry into
a Living Unit or Exclusive Use Area without (a) a court order allowing such entry or (b) the
Owner's consent, which consent shall not unreasonably be withheld and shall be presumed
if the Owner makes no objection to such entry within three (3) days after the Board delivers
notice of its intent to enter. When there is an entrance into any Living Unit or Exclusive Use
Area such entrance shall be made with as little inconvenience to the Owner as possible and
any damage caused shall be repaired by the Association.
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ARTICLE XIII
ADDITIONAL EXCLUSIVE EASEMENTS AND LICENSES
The Board shall have the right to grant the following additional easements and licenses:
Section 13.1. Common Area Licenses. The Board shall have the right to grant
irrevocable licenses for Owners to exclusively use portions of the Common Area adjoining the
Owners' Exclusive Use Area, provided that the granting of such licenses would not materially
and adversely affect any Owner's use of the Common Area.
Section 13.2. Association Property. The Board shall have the right to grant easements
for Owners to exclusively use portions of the Association Property adjoining the Owners'
Exclusive Use Area, provided that the granting of such easements would not materially and
adversely affect any Owner's use of the Association Property.
ARTICLE XIV
ENFORCEMENT
Section 14.1. Enforcement. The Association, Declarant, and/or any Owner shall have
the right to enforce against one another, by any proceeding at law or in equity, all restrictions,
covenants, reservations, liens and charges now or hereafter imposed by this Declaration.
Section 14.2. City Enforcement. The City shall have the right, but not the obligation,
to enforce those provisions in this Declaration in which the City has an interest.
Section 14.3. No Waiver. Failure by the Association, Declarant, the City or any Owner
to enforce any provision of this Declaration shall in no event be deemed a waiver of the right
to do so thereafter.
ARTICLE XV
ADDITIONAL PROVISIONS
Section 15.1. Severabilitv. Should any provision in this Declaration be void or become
invalid or unenforceable in law or equity by judgment or court order, the remaining provisions
hereof shall be and remain in full force and effect.
Section 15.2. Amendments Prior to Escrow Closings. Prior to the date escrow closes
for any sale of a Condominium to a Retail Purchaser, this Declaration may be unilaterally
amended by Declarant.
Section 15.3. Amendments After Escrow Closings. The following provisions shall apply
after the close of the first escrow for a sale of a Condominium to a Retail Purchaser. During
the period of time prior to conversion of the Class B membership to Class A membership, this
Declaration may be amended by an instrument in writing signed by the President or Secretary
of the Association certifying that at least sixty-seven percent (67%) of the voting power of
each class of Members of the Association have approved the amendment. After conversion
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of the Class B membership in the Association to Class A membership, the Declaration may be
amended by an instrument in writing signed by the President or Secretary of the Association
certifying that the following have approved the amendment: (a) at least sixty-seven percent
(67%) of the total voting power of the Association, and (b) at least sixty-seven percent (67%)
of the voting power of Members of the Association other than Declarant. The percentage of
voting power necessary to amend a specific clause or provision of this Declaration shall not
be less than any percentage of affirmative votes prescribed for action to be taken under that
clause. An amendment shall become effective upon the recording thereof by the Office of the
County Recorder of the County of San Diego, California.
Section 15.4. Mortgagee Approval of Amendment. Anything contained herein to the
contrary notwithstanding, no amendment material to a Mortgagee may be made to this
Declaration without the prior written consent of Eligible Mortgage Holders whose Mortgages
encumber fifty-one percent (51 %) or more of the Condominiums within the Project which are
subject to Eligible Mortgage Holder Mortgages. For purposes hereof, any amendments to provi-
sions of this Declaration governing any of the following subjects, shall normally be deemed
"material to a Mortgagee":
(a) Voting rights.
(b) Assessment liens and the priority of assessment liens and the right of
Eligible Mortgage Holders to approve increases in regular assessments of in aggregate
more than twenty-five percent (25%) during any fiscal year from the regular assessments
assessed during the previous fiscal year.
(c) The right of Eligible Mortgage Holders to approve reductions in reserves
for maintenance, repair and replacement of the Association Property and the Common
Area.
(d) Responsibility for maintenance and repairs.
(e) Reallocation of interests in the Common Area or Association Property
(including Exclusive Use Area) or rights to its use.
(f) Redefinition of boundaries.
(g) Convertibility of Living Units into Common Area or Association Property
and vice versa.
(h) Annexation and deannexation.
(i) Hazard or fidelity insurance requirements.
(j) Imposition of any restrictions on the leasing of Condominiums.
(k) Imposition of any right of first refusal or similar restriction on the right
of a Condominium Owner to sell, transfer or otherwise convey the Owner's
Condominium.
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(I) Section 15.15.
(m) Restoration or repair of the Project (after a hazard or partial condemna-
tion) in a manner other than specified herein.
(n) Any action to terminate the legal status of the Project after substantial
destruction or condemnation occurs.
(o) Any provision which, by its terms, is specifically for the benefit of the
first Mortgagees, or specifically confers rights on first Mortgagees.
An Eligible Mortgage Holder who receives a written request to approve
amendments (including additions) who does not deliver or mail to the requesting party a
negative response within thirty (30) days, shall be deemed to have approved such request
provided that such written request was delivered by certified mail or registered mail, with
"return receipt" requested.
There shall be no amendment to or revocation of the provisions of Section 2.4, 4.20,
7.3 (f) or 14.2 without the prior written consent of the City.
Section 15.5. Extension of Declaration. Each and all of these covenants, conditions and
restrictions shall terminate sixty (60) years following the recordation of this Declaration, of
Restrictions with the Office of the County Recorder of the County of San Diego, after which
date they shall automatically be extended for successive periods of ten (10) years unless all
the Owners have executed and recorded at any time within six (6) months prior to said sixty
(60) year period, or within six (6) months prior to the end of any such ten (10) year period, in
the manner required for a conveyance of real property, a writing in which it is agreed that said
restrictions shall terminate at the end of said sixty (60) year period or at the end of any such
ten (10) year period.
Section 15.6. Annexation: Reservation of Easements.
(a) If Declarant should develop portions of the Real Property which are not
initially a part of Covered Property, such additional lands or any portion thereof may be
annexed to this Declaration and thereby be added to and included within the Project and
the Covered Property and thereby become subject to the jurisdiction of the Association
by action of Declarant without the assent of Members of the Association. Annexation
may be accomplished by the recording of a Declaration of Annexation which requires
Owners of Condominiums therein to be Members of the Association. Any such area may
be deannexed anytime prior to the first conveyance of a Condominium in such area by
Declarant executing, acknowledging and recording a Declaration of Deannexation for such
area.
(b) Annexation of any additional portion of the Real Property to the Covered
Property is subject to the following requirements:
(i) Recordation of a Declaration of Annexation identifying the specific
land to be annexed;
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(ii) Declarant shall be obligated to pay the Association, concurrently
with the closing of the escrow for the first sale of a Condominium in a Phase of
the annexed area, appropriate amounts for reserves for replacement or deferred
maintenance of Common Area or Association Property improvements in the
annexed area necessitated by or arising out of the use and occupancy of
Condominiums under a rental program, if any, conducted by Declarant which
has been in effect for a period of at least one (1) year as of closing of escrow
for the first sale of a Condominium in the annexed area;
(iii) The Condominiums to be constructed in the area to be annexed
shall be substantially consistent with the Condominiums in the initially Covered
Property in structure type and quality of construction, if so required by FNMA.
This Subsection (iii) is intended to benefit FNMA only and its requirements may
be waived by FNMA;
(iv) Annexation shall not result in there being more than 124
Condominiums in the Project; and
(v) The Declaration of Annexation shall not change the provisions
herein set forth (including, but not limited to, those pertaining to voting rights
and assessments) but may impose additional restrictions, easements and
covenants on the area being annexed.
(vi) The DVA shall have the right to reasonably determine that the
annexation is in substantial conformity with the overall development plan, if
any, approved by the DVA;
(c) Declarant reserves the right to construct on the portions of the Real
Property annexed to this Declaration, Condominiums of those sizes, price ranges, floor
plans, architectural styles and designs as Declarant may, in its sole discretion, determine.
Such sizes, price ranges, floor plans, architectural styles and/or designs need not be
consistent with any previous or other Phase except as required by FNMA pursuant to
Subsection (c)(iii) above. Among other things, but not as a limitation, Declarant may
construct on the Real Property annexed hereto, lower or higher priced Condominiums,
higher density or lower density residences, attached or detached residences. Moreover,
Declarant shall not be obligated to complete the future Phases at all or in any particular
order and has the right to change the Association Property and the numbers of
Condominiums in a Phase, subject to the limitations stated in Subsection (b) above.
(d) The Declaration of Annexation shall contain (i) a description of the
property to be annexed, and (ii) a statement that the property to be annexed shall be
subject to this Declaration.
(e) Declarant hereby reserves reciprocal cross-easements in and to the
Association Property (other than Exclusive Use Areas) and Common Area in all Phases
of the Project for the benefit of the Owners of Condominiums in all other Phases of the
Project. These cross-easements shall not benefit or burden a Phase until (i) such Phase
has become subject to this Declaration and (ii) a Condominium has been conveyed to a
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Retail Purchaser in such Phase; provided, however, each Owner of a Condominium shall
at all times be provided with ingress and egress to such Owner's Condominium.
(f) As'an alternative method of annexation, pursuant to a two-thirds (2/3)
majority of the voting power of its Members, or the written assent of such Members,
excluding the voting power or written assent of Declarant and the approval of the DVA,
the owner of any property who desires to add it to the scheme of this Declaration and
to subject it to the jurisdiction of the Association, may file of record a Declaration of
Annexation.
(g) Declarant hereby reserves in favor of- each Condominium and the
Association Property in each Phase which is subject to this Declaration an appurtenant
non-exclusive easement to use any drainage systems installed anywhere within the Real
Property for the purposes of accepting drainage from such Association Property or
Condominium regardless of whether the drainage system is located within a Phase which
is within the Covered Property.
Section 15.7. Enforcement Litigation. Except as provided in Section 15.26 below, in
the event the Association, Declarant or any Owner shall commence litigation to enforce any
of the covenants or restrictions contained in this Declaration, the prevailing party in such
litigation shall be entitled to costs of suit and such attorney's fees as the Court may adjudge
reasonable and proper. The "prevailing party" shall be the party in whose favor a final
judgment is entered.
Section 15.8. Encroachment Easements. Easements are hereby reserved in favor of the
Owner of each Condominium and the Association over all adjoining Condominiums, the
Association Property and Common Area for the purpose of accommodating any minor
encroachments due to engineering errors, errors in original construction, repair, settlement or
shifting of any building, or any other cause. There shall be easements for the maintenance of
said encroachments as long as they shall exist, and the rights and obligations of Owners shall
not be altered in any way by said encroachments, settlement or shifting; provided, however,
that in no event shall an easement for encroachment be. created in favor of an Owner if the
encroachment occurred due to the willful misconduct of any Owner. In the event any portion
of a structure in the Project is partially or totally destroyed and then repaired or rebuilt, each
Owner agrees that minor encroachments over adjoining Condominiums, Association Property
or Common Area shall be easements for the maintenance of said encroachments so long as
they shall exist.
Section 15.9. Provisions Apply to All Condominiums. The provisions of this Declaration
apply to all Condominiums which have been made subject to this Declaration, including any
unsold Condominiums which may be owned by Declarant. Declarant shall have the same rights
and assumes the same duties as any other Owner with respect to unsold Condominiums,
except as expressly stated otherwise.
Section 15.10. DVA Approval. So long as there is a Class B membership in the Associa-
tion, and during the period of time that the DVA is the guarantor of a Mortgage encumbering
a Condominium, the following actions will require the prior approval of the DVA: Deannexation
of additional property from the Real Property, any mergers or consolidations of the
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Association, any special assessment, and a material amendment to the Declaration, a draft of
which shall be submitted to and approved by the DVA prior to recordation.
Section 15.11. FrfA Approval. The Federal Housing Authority ("FHA") shall have the
same approval rights as are provided to the DVA in this Declaration during such period of time
as FHA is insuring a Mortgage encumbering a Condominium within the Project or owns a
Condominium within the Project.
Section 15.12. Special Responsibilities of Association. In the event that the improve-
ments to be installed by Declarant to the Association Property or Common Area have not been
completed prior to the issuance by the California Department of Real Estate of a Final
Subdivision Public Report covering a Phase and in the further event that the Association is the
obligee under a bond to secure performance by the Declarant to complete such improvements,
then if such improvements have not been completed and a Notice of Completion filed within
sixty (60) days after the completion date specified in the Planned Construction Statement
appended to the bond, the Board shall consider and vote upon the question of whether or not
to bring action to enforce the obligations under the bond. If the Association has given an
extension in writing for the completion of any such improvement then the Board shall consider
and vote on said question if such improvements have not been completed and a Notice of
Completion filed within thirty (30) days after the expiration of the extension period. In the
event that the Board determines not to take action to enforce the obligations secured by the
bond, or does not vote on the question as above provided, then, in either such event, upon
petition signed by Members representing not less than five percent (5%) of the total voting
power of the Association, the Board shall call a special meeting of the Members of the
Association to consider the question of overriding the decision of the Board or of requiring the
Board to take action on the question of enforcing the obligations secured by the bond. Said
meeting of Members shall be held not less than thirty-five (35) days nor more than forty-five
(45) days following receipt of the petition. At said meeting a vote of a majority of the voting
power of the Members of the Association, excluding the vote of Declarant, to take action to
enforce the obligations under the bond shall be deemed to be the decision of the Association,
and the Board shall thereafter implement the decision by initiating and pursuing appropriate
action in the name of the Association.
Section 15.13. Limitation of Restrictions on Declarant. Declarant is undertaking the work
of construction of residential Condominium dwellings and incidental improvements within the
Project. The completion of that work, and the sale, rental and other disposal of said
Condominium dwellings is essential to the establishment and welfare of the Project as a
residential community. In order that Declarant's work may be completed and the Project may
be established as a fully occupied residential community as rapidly as possible, nothing in this
Declaration shall be understood or construed to:
(a) Prevent Declarant, its contractors or subcontractors from doing in the
Project whatever is reasonably necessary or advisable in connection with the completion
of such work; or
(b) Prevent Declarant or its representatives from erecting, constructing and
maintaining on any part of the Project such structures as may be reasonable and
necessary for the conduct of its business of completing such work and establishing the
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Project as a residential community and disposing of the same in parcels by sale, lease or
otherwise; or
(c) Pr6vent Declarant from conducting on any part of the Project its business
of completing such work, and of establishing a plan of Condominium ownership and of
disposing of Condominiums in the Project by sale, lease or otherwise; or
(d) Prevent Declarant from maintaining such signs within the Project as may
be necessary for the sale, lease or disposition of Condominiums; provided, however, that
the maintenance of any such sign shall not unreasonably interfere with the use by any
Owner of such Owner's Condominium.
The rights of Declarant provided in Subparagraphs (a) through (d) above may be
exercised during the period of time commencing when the Condominiums are first sold or
offered for sale to the public and ending when all Condominiums have closed escrow.
Section 15.14. Owners' Compliance. Each Owner, tenant or occupant of a Condominium
shall comply with the provisions of this Declaration, the Bylaws, decisions and resolutions of
the Association or its duly authorized representative, as lawfully amended from time to time,
and failure to comply with any such provisions, decisions, or resolutions shall be grounds for
an action to recover sums due, for damages, or for injunctive relief.
All agreements and determinations lawfully made by the Association in
accordance with the voting percentages established in this Declaration or in the Bylaws, shall
be deemed to be binding on all Owners of Condominiums, their successors and assigns.
Section 15.15. Payments of Taxes or Premiums by First Mortgagees. First Mortgagees
may, jointly or severally, pay taxes or other charges which are in default and which may or
have become a charge against the Association Property, unless such taxes or charges are
separately assessed against the Owners, in which case, the rights of first Mortgagees shall be
governed by the provisions of their deeds of trust. First Mortgagees may, jointly or severally,
also pay overdue premiums on casualty insurance policies, or secure a new casualty insurance
coverage on the lapse of a policy for the Association Property, and first Mortgagees making
such payments shall be owed immediate reimbursement thereof from the Association.
Entitlement to such reimbursement shall be reflected in an agreement in favor of any first
Mortgagee who requests the same to be executed by the Association.
Section 15.16. Mortgagee Curing Defaults. A Mortgagee who acquires title by judicial
foreclosure, deed in lieu of foreclosure or trustee's sale shall not be obligated to cure any
breach of the provisions of this Declaration which is non-curable or of a type which is not
practical or feasible to cure. The determination of the Board made in good faith as to whether
a breach is non-curable or not feasible to cure shall be final and binding on all Mortgagees.
Section 15.17. Approval of First Mortgagees. Unless at least sixty-seven percent (67%)
of the first Mortgagees (based on one vote for each first Mortgage owned) have given their
prior written approval, the Association shall not be entitled to:
(a) By act or omission seek to abandon or terminate the Project.
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(b) Change the pro rata interest or obligations of any Condominium in order
to levy assessments or charges, allocate distribution of hazard insurance proceeds or
condemnation awards, or determine the pro rata share of ownership of each
Condominium in the Common Area. (This Subsection is not intended to require approval
of First Mortgagees to the annexation of additional Phases to the Project or to the sale
of Condominiums in such additional Phases.)
(c) Partition or subdivide any Condominium.
(d) 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 public purposes and other easements allowed by this Declaration shall not be
deemed a transfer within the meaning of this Subsection nor shall non-material boundary
adjustments be deemed a transfer within the meaning of this Subsection.
(e) Restoration of the project (after hazard damage or partial condemnation)
in such a manner other than specified in this Declaration. Any restoration or repair of the
Association Property or Common Area after partial condemnation or damage due to an
insurable event, shall be performed substantially in accordance with this Declaration and
original plans and specifications unless other action is approved by Eligible Mortgage
Holders, Insurers or Guarantors which have at least sixty-seven percent (67%) of the
votes of Condominiums subject to Eligible Mortgage Holders, Insurers or Guarantors.
When Owners are considering termination of the legal status of the project for reasons
other than substantial destruction or condemnation of the project, Eligible Mortgage
Holders, Insurers or Guarantors which have at least sixty-seven percent (67%) of the
votes of Condominiums subject to Eligible Mortgage Holders, Insurers or Guarantors must
agree.
(f) Use hazard insurance proceeds or proceeds from other third parties for
losses to or claimed defects in any portion of the Association Property or Common Area
for other than the repair, replacement or reconstruction of such Association Property or
Common Area.
(g) When professional management has been previously required by any
Eligible Mortgage Holder, Insurer or Guarantor, whether such entity became an Eligible
Mortgage Holder, Insurer or Guarantor at that time or later, any decision to establish self-
management by the Association shall require the prior consent of at least sixty-seven
percent (67%) of the voting power of the Association and the approval of Eligible
Holders, Insurers or Guarantors of Mortgages on Condominiums which have at least fifty-
one percent (51 %) of the votes of Condominiums subject to Eligible Mortgage Holders,
Insurers or Guarantors. This paragraph (g) applies only if the Project contains 50 or more
Living Units.
Section 15.18. Notice to Eligible Mortgagees. Upon written request to the Association
identifying the name and address of the Eligible Mortgage Holder, Insurer or Guarantor and the
Condominium number or address, any Eligible Mortgage Holder, Insurer or Guarantor will be
entitled to timely written notice of:
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(a) Any condemnation loss or any casualty loss which affects a material
portion of the Project or any Condominium on which there is a Mortgage held, insured or
guaranteed by such Eligible Mortgage Holder, Insurer or Guarantor.
(b) Any delinquency in the payment of assessments or other default by an
Owner subject to a Mortgage held, insured or guaranteed by such Eligible Mortgage
Holder, Insurer or Guarantor which remains uncured for a period of sixty (60) days.
(c) Any-lapse, cancellation or material modification of any insurance policy
or fidelity bond maintained by the Association.
(d) Any proposed action which would require the consent of a specified
percentage of Eligible Mortgage Holders, Insurers or Guarantors as specified above.
Section 15.19. Documents to be Available to Mortgagees. The Association shall make
available to Owners and Mortgagees, and holders, insurers or guarantors of any Mortgage,
current copies of this Declaration, the Bylaws, other rules concerning the Project and the
books, records and financial statements of the Association. "Available" means available for
inspection, upon request, during normal business hours or under other reasonable
circumstances. If the Project consists of fifty (50) or more Condominiums, the Association
must provide an audited statement for the preceding fiscal year if an Eligible Mortgage Holder
or Eligible Mortgage Insurer or Guarantor of a first Mortgage submits a written request for it.
If the Project consists of less than fifty (50) Condominiums and no audited statement is
available, the Eligible Mortgage Holder or Eligible Mortgage Insurer or Guarantor may have an
audited statement prepared at its expense. Any such financial statement so requested shall
be furnished within a reasonable time following such request.
Section 15.20. Mortgagee Protection. A breach by an Owner of any of the covenants,
conditions and restrictions contained herein shall not affect, impair, defeat or render invalid the
lien, charges or encumbrance of any first Mortgage made for value which may then exist on
any Condominium; provided, however, that in the event of a foreclosure of any such first
Mortgage, or if the holder of the note secured by such first Mortgage acquires title to a
Condominium in any manner whatsoever in satisfaction of the indebtedness, then the
purchaser at the foreclosure sale shall, upon acquiring title, become subject to each and all of
the covenants, conditions and restrictions contained herein, but free from the effects of any
breach occurring prior thereto.
Section 15.21. Conflicts. In the event of any conflict between any of the provisions of
this Article and any of the other provisions of this Declaration, the provisions of this Article
shall control.
Section 15.22. Provisions of Civil Code Section 1360. Section 1360 of the California
CIVIL CODE provides as follows:
"(a) Subject to the provisions of the governing documents and other
applicable provisions of law, if the boundaries of a Living Unit are contained within
a building, the owner of a Living Unit may do the following:
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(1) Make any improvements or alterations within the boundaries
of his or her Living Unit that do not impair the structural integrity or mechanical
systems or lessen the support of any portions of the common interest development.
(2) Modify a unit in a condominium project, at the owner's
expense, to facilitate access for persons who are blind, visually handicapped, deaf
or physically disabled, or to alter conditions which could be hazardous to these
persons. These modifications may also include modifications of the route from the
public way to the door of the unit for the purposes of this paragraph if the unit is on
the ground floor or already accessible by an existing ramp or elevator. The right
granted by this paragraph is subject to the following conditions:
(A) The modifications shall be consistent with
applicable building code requirements.
(B) The modifications shall be consistent with
the intent of otherwise applicable provisions of the governing
documents pertaining to safety or aesthetics.
(C) Modifications external to the dwelling shall
not prevent reasonable passage by other residents, and shall be
removed by the owner when the unit is no longer occupied by
persons requiring those modifications who are blind, visually
handicapped, deaf or physically disabled.
(D) Any owner who intends to modify a unit
pursuant to this paragraph shall submit his or her plans and
specifications to the association of the condominium project for
review to determine whether the modifications will comply with
the provisions of this paragraph. The association shall not deny
approval of the proposed modifications under this paragraph
without good cause.
(b) Any change in the exterior appearance of a Living Unit shall be in
accordance with the governing documents and applicable provisions of law."
Section 15.23. Documents to be Provided to Prospective Purchasers.
(a) By Owners. Each Owner shall, as soon as practicable before transfer of
title to his or her Condominium or execution of a real property sales contract therefor (as
defined in CIVIL CODE Section 2985), provide the following to the prospective purchaser
those items which Civil Code Section 1368 requires be provided to the prospective
purchaser. As of the date of this Declaration, Civil Code Section 1368 requires the
following items be provided:
(i) A copy of this Declaration, the Association's Articles and Bylaws,
and the Condominium Plan for the Phase which describes the Condominium
offered for sale;
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(ii) The statement required by CIVIL CODE Section 1368(2), if
applicable (i.e., if an age restriction becomes applicable);
(iiij A copy of the Association's most recent financial statement
distributed pursuant to CIVIL CODE Section 1365;
(iv) A true statement, in writing, from an authorized representative of
the Association, as to the respective amounts levied upon the Owner's
Condominium 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 date of the statement, are or may be made a lien
upon the Owner's Condominium pursuant to CIVIL CODE Section 1367.
(v) A copy of the preliminary list of defects provided to each Owner
pursuant to Civil Code Section 1375 if such that Section requires the list to be
provided.
(vi) Any change in the Association's current regular and special
assessments and fees which have been approved by the Board but have not
become due and payable as of the date of the disclosure required by this
Section.
(b) By the Association. Upon written request to the Association it shall,
within ten (10) days of mailing or delivery of the request, provide an Owner with a copy
of the requested Association items specified in (i), (ii), (iii) and (iv) above. The Association
may charge a fee for this service which may not exceed the cost to prepare and
reproduce the requested items.
Section 15.24. Easement to Inspect and Test. Declarant reserves easements to enter
any portion of the Project, including the interior of any residence and Exclusive Use Area to
inspect those areas and to conduct destructive testing referred to in California CIVIL CODE
Sectionl 375(d). However, Declarant shall notify the Association, with respect to Association
Property which is to be inspected and the Owner of the Exclusive Use Area or Living Unit to
be inspected of at least three (3) alternative dates and times when such inspection can take
place (the earliest of which shall not be less than ten (10) days after the notification is given)
and Declarant shall give the Association and Owner, respectively, the opportunity to specify
which date and time is acceptable to the Association and Owner. Should the Association or
Owner not respond affirmatively with respect to one of the dates and times within five (5)
days, then Declarant may decide which of the dates and times the inspection and testing shall
take place and so notify the Association or Owner, respectively. Alternatively, Declarant may
seek a judicial order allowing such inspection and testing to take place. Declarant shall be
entitled to its reasonably incurred attorney's fees and be deemed the "Prevailing Party" should
such a court order be sought and obtained. Declarant shall be obligated to fully repair any
damage caused by any such destructive testing.
Section 15.25. Association Property and Common Area Inspection. In addition to its
other inspection and testing rights set forth in this Declaration, Declarant may, at its election,
notify the Board that (i) Association Property and Common Area landscaping and related
improvements for a particular Phase, or some portion thereof, have been completed and (ii)
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Declarant is requesting the inspection provided for in this Section. Within fifteen (15) days
after Declarant gives such notice, Declarant shall select an independent and qualified landscape
architect to perform the inspection. Each person selected or appointed pursuant to this Section
is referred to collectively as the "Expert". Declarant shall pay the reasonable compensation of
the Expert.
Promptly upon the selection of the Expert as provided above, the Expert shall
inspect the improvements as to which Declarant has given notice of completion and requested
inspection. One representative of the Declarant and one representative of the Board may
accompany the Expert during the inspection. The inspection shall be limited to a visual
inspection, and improvements shall not be uncovered. The Expert shall not be responsible for
identifying latent deficiencies. Promptly after the inspection is completed, the Expert shall
submit a written report (the "Report") to Declarant and the Board specifying the respects, if
any, in which the improvements do not substantially conform to the plans and specifications
therefor and are defective, and if there are no such deficiencies, the Report shall state that the
improvements conform to the plans and specifications therefor. The Report shall constitute
conclusive and binding evidence that, except as otherwise provided therein and except for
latent deficiencies, if any, the improvements have been constructed in substantial accordance
with the plans and specifications therefor, and thereafter Declarant shall have no further
liability, duty or obligation with respect to such improvements, except to remedy any
deficiencies specified in the Report and except with respect to latent deficiencies, if any, and
the separate repair obligations of Declarant under express written warranty, if any.
Declarant shall correct any deficiencies specified in the Report, and the Expert
shall reinspect such improvements within thirty (30) days after Declarant's request. Such
reinspection shall be performed in the same manner as provided for the first inspection.
Promptly after the reinspection is completed, the Expert shall submit another written report
(the "Reinspection Report") to Declarant and the Board specifying the deficiencies specified
in the Report which have not been corrected, if any, and if all such deficiencies have been
corrected the Reinspection Report shall state that the improvements substantially conform to
the plans and specifications therefor. The Reinspection Report shall constitute conclusive and
binding evidence that, except as otherwise provided therein and except for latent deficiencies,
if any, the improvements have been constructed in substantial accordance with the plans and
specifications therefor, and thereafter Declarant shall have no further liability, duty or
obligation with respect to such improvements, except to remedy any deficiencies specified in
the Reinspection Report, and except with respect to latent deficiencies, if any, and the
separate repair obligations of Declarant under express written warranty, if any.
Additional inspections and Reinspection Reports shall be made, if necessary, all
in accordance with and with the same effect as provided hereinabove.
Within ten (10) days after all deficiencies have been corrected, as evidenced by
a Report or Reinspection Report, the Board shall be deemed to have accepted the improve-
ments in writing and shall release in writing any and all rights under any and all payment and
performance, labor and material, and completion bonds pertaining to the improvements.
No amendment may be made to this Section without the written consent of Declarant.
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Section 15.26. Definitions. The following words will have the following meanings for
purposes of this Article:
(a) "Construction Defect Dispute" shall mean and refer to any dispute
between an Owner or the Association and Declarant or between an Owner or the
Association and any employee, agent, partner, contractor, subcontractor or material
supplier of Declarant which dispute relates to the use or condition of the Real Property
or any improvements to the Real Property. Construction Defect Disputes include, but are
not limited to, disputes regarding boundaries, surveys, soils conditions, grading, design,
specifications, construction, installation of improvements or disputes which allege breach
of implied or express warranties as to the condition of the Real Property.
(b) "ConstructionParty" refers to Declarant, or any director, officer, partner,
employer, subcontractor or agent of Declarant.
(c) "Claimant" refers to any party (including any Owner or the Association)
who intends to make a claim for Construction Defect against a Construction Party.
Section 15.27. Dispute Notification and Resolution Procedure. Any Construction Defect
Dispute shall be subject to the following provisions:
(a) Notice. Any Claimant with a claim against a Construction Party shall
notify the Construction Party in writing of the claim, which writing shall describe the
nature of the claim and the proposed remedy (the "Claim Notice").
(b) Right to Inspect and Right to Corrective Action. Within a reasonable
period after receipt of the Claim Notice, which period shall not exceed sixty (60) days,
each Construction Party and the Claimant shall meet at a mutually-acceptable place
within the Real Property to discuss the claim. At such meeting or at such other mutually-
agreeable time, each Construction Party and its/their representatives shall have full
access to the property that is subject to the claim for the purposes of inspecting the
same. The parties shall negotiate in good faith in an attempt to resolve the claim. If a
Construction Party elects to take any corrective action, the Construction Party and its
representatives and agents shall be provided full access to the property subject to the
claim to take and complete corrective action.
(c) Civil Code Sections 1368.4 and 1375. Nothing contained herein shall
be deemed a waiver or limitation of the provisions of California CIVIL CODE Section
1368.4. If the claim is subject to the provisions of CIVIL CODE Section 1375 as it may be
amended from time to time, compliance with the procedures of CIVIL CODE Sections 1375
(b), (d) and (e) shall satisfy the requirements of Sections 15.27 (a) and 15.27 (b) above.
(d) Mediation. If the parties cannot resolve the claim pursuant to the
procedures described in subsection (b) above, (including, if applicable, CIVIL CODE Section
1375 procedures) the matter shall be submitted to mediation pursuant to the mediation
procedures adopted by the American Arbitration Association or any successor thereto or
to any other entity offering mediation services that is acceptable to the parties. No
person shall serve as a mediator in any dispute in which the person has any financial or
personal interest in the result of the mediation, except by the written consent of all
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parties. Prior to accepting any appointment, the prospective mediator shall disclose any
circumstances likely to create a presumption of bias or to prevent a prompt
commencement of the mediation process.
(i) Within ten (10) days of the selection of the mediator, each party
shall submit a brief memorandum setting forth its position with regard to the
issues that need to be resolved. The mediator shall have the right to schedule
a pre-mediation conference and all parties shall attend unless otherwise agreed.
The mediation shall be commenced within ten (10) days following the submittal
of the memoranda and shall be concluded within fifteen (15) days from the
commencement of the mediation unless the parties mutually agree to extend the
mediation period. The mediation shall be held in the county in which the Real
Property are located or such other place as is mutually acceptable to the parties.
(ii) The mediator has discretion to conduct the mediation in the
manner in which the mediator believes is most appropriate for reaching a
settlement of the dispute. The mediator is authorized to conduct joint and
separate meetings with the parties and to make oral and written recommenda-
tions for settlement. Whenever necessary, the mediator may also obtain expert
advice concerning technical aspects of the dispute, provided the parties agree
and assume the expenses of obtaining such advice. The mediator does not
have the authority to impose a settlement on the parties.
(iii) Prior to the commencement of the mediation session, the
mediator and all parties to the mediation shall execute an agreement pursuant
to California EVIDENCE CODE Section 1152.5(e) or successor statute in order to
exclude the use of any testimony or evidence produced at the mediation in any
subsequent dispute resolution forum, including, but not limited to, court
proceedings, reference proceedings or arbitration hearings. Pursuant to
California EVIDENCE CODE Sectionl 152.5(a), the agreement shall specifically
state that evidence of anything said or of any admission made in the course of
the mediation is not admissible evidence, and disclosure of any such evidence
shall not be compelled in any civil action in which, pursuant to law, testimony
can be compelled to be given. Unless the document provides otherwise, no
document prepared for the purpose of, or in the course of, or pursuant to, the
mediation, or copy thereof, is admissible evidence; and disclosure of any such
document shall not be compelled in any civil action in which, pursuant to law,
testimony can be compelled to be given.
(iv) Persons other than the parties, the representatives and the
mediator may attend mediation sessions only with the permission of the parties
and the consent of the mediator. Confidential information disclosed to a
mediator by the parties or by witnesses in the course of the mediation shall not
be divulged by the mediator. All records, reports, or other documents received
by the mediator while serving in such capacity shall be confidential. There shall
be no stenographic record of the mediation process.
(v) The expenses of witnesses for either side shall be paid by the
party producing such witnesses. All other expenses of the mediation, including
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required traveling and other expenses of the mediator, and the expenses of any
witnesses, or the cost of any proofs or expert advice produced at the direct
request of the mediator, shall be borne equally by the parties unless they agree
otherwise'. Each Owner covenants that each shall forbear from commencing any
litigation against the Construction Party without complying with the procedures
described in this Section.
Section 15.28. Judicial Reference of Certain Disputes. Any Construction Defect Dispute
against a Construction Party shall be submitted to general judicial reference pursuant to
California CODE OF CIVIL PROCEDURE Sections 638(1) and 641-645 or any successor statutes
thereto, and all parties shall cooperate in good faith to ensure that all necessary and
appropriate parties are included in the judicial reference proceeding. A Construction Party shall
not be required to participate in the judicial reference proceeding should such Construction
Party reasonably determine that not all necessary and appropriate parties will or can be legally
compelled to participate. The following provisions apply to any such judicial reference:
(a) The parties waive their right to a jury trial.
(b) The parties shall share equally in the fees and costs of the referee, unless
the referee orders otherwise. The parties shall bear their own attorneys' fees.
(c) The general referee shall have the authority to try all issues, whether of
fact or law, and to report a statement of decision to the court. The parties shall use the
procedures adopted by Judicial Arbitration and Mediation Services ("JAMS") for judicial
reference (or any other entity offering judicial reference dispute resolution procedures as
may be mutually acceptable to the parties), provided that the following rules and
procedures shall apply in all cases unless the parties agree otherwise:
(i) The proceedings shall be heard in San Diego County;
(ii) The referee must be a retired judge or a licensed attorney with
substantial experience in relevant matters;
(iii) Any dispute regarding the selection of the referee shall be
resolved by JAMS or the entity providing the reference services, or, if no entity
is involved, by the court with appropriate jurisdiction;
(iv) The referee may require one or more pre-hearing conferences;
(v) The parties shall be entitled to conduct all discovery as otherwise
provided in the California CODE OF CIVIL PROCEDURE, and the referee shall oversee
discovery and may enforce all discovery orders in the same manner as any trial
court judge;
(vi) A stenographic record of the trial shall be made, provided that the
record shall remain confidential except as may be necessary for post-hearing
motions and any appeals;
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Section 16.3. Failure to Complete Project. In the event all Phases of the Covered
Property are not constructed as originally intended by Declarant and a building has not been
constructed in one or more Building Envelopes ("Undeveloped Building Envelopes"), Declarant
may convey by quitclairrt deed to the Association, the Undeveloped Building Envelopes within
the Covered Property then owned by Declarant. Upon the conveyance of an Undeveloped
Building Envelope to the Association, the Living Units and Common Area which have not then
been constructed shall thereafter be Association Property, and the applicable Condominium
Plan(s) may be amended by Declarant in accordance with this Declaration. Within sixty (60)
days following any such conveyance, Declarant shall at Declarant's expense clean-up any
debris from the Undeveloped Building Envelope so conveyed.
Section 16.4. Right of Declarant to Redesign Project. Declarant reserves the right in its
sole discretion, but subject to any necessary City approvals, to redesign any portion of the
Project other than Living Units and Common Area which have been conveyed by Declarant to
others. The redesign may alter the boundaries of any improvement, adjust the location of the
Building Envelopes and Association Property, change the elevation and appearance of improve-
ments, and change the location of the amenities. However, in no event shall the redesign result
in more than one hundred twenty-four (124) Living Units being constructed within the Project.
Section 16.5. Amendment to Condominium Plants). The Condominium Plan covering
a Building Envelope may be amended or revoked by a document signed and acknowledged by
the then owners of the Building Envelope and by their Mortgagees. For example, until the
conveyance of a Condominium within a Building Envelope, amendment of the applicable
Condominium Plan covering just that Building Envelope shall require the signature only of
Declarant as the owner of the Building Envelope and of the Mortgagees whose Mortgage
encumbers the Building Envelope.
Section 16.6. Power of Attorney. Each Mortgagee of a Mortgage and each Owner of
a Condominium by accepting a Mortgage or deed to a Condominium, shall be deemed to have
constituted and irrevocably appointed Declarant as his attorney-in-fact, for himself and each
of his optionees, grantees, licensees, trustees, receivers, lessees, tenants, judgment creditors,
heirs, legatees, devisees, administrators, executors, legal representatives, successors and
assigns, whether voluntary or involuntary, and thereby to have conveyed a power of attorney
coupled with an interest to Declarant as his attorney-in-fact to effect the redesign of all or any
portion of the Project in accordance with the limitations and requirements set forth in this
Article; and further:
(a) To prepare, execute, acknowledge and record any map or record
of survey required or permitted by the provisions of the Subdivision Map Act of the State
of California in effect on the date of the recording of this Declaration and as thereafter
enacted or amended, and any ordinances, rules and regulations of applicable govern-
mental entities and authorities having jurisdiction over the Project in effect on the date
of the recording of this Declaration and as thereafter enacted or amended, or which may
be required or permitted by any title insurer, and in connection therewith, to perform all
conditions, undertake any obligations and execute all agreements and documentation
required or permitted by any federal, state and local governmental entities and authorities;
to appear before any such governmental entities and authorities; and to execute,
acknowledge and deliver any improvement agreements and bonds and post deposits
securing the performance of any such conditions and obligations.
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securing the performance of any such conditions and obligations; and do all other things
now or hereafter permitted or required by any such governmental body and any such laws
and regulations.
(g) To prepare, execute, acknowledge and record any deeds, waivers,
releases, reconveyances or other documentation which may be permitted or required to
clear title to any Condominiums in the Project.
(h) . To do any and all things necessary or desirable under the
circumstances to effect and accomplish the purposes of this Article.
Section 16.7. Indemnification of Owners on Exercise of Power of Attorney. Declarant
shall indemnify and hold each Owner free and harmless from all liabilities, including attorney's
fees, which are incurred as a direct result of the execution by Declarant of any improvement
agreements or bonds, or both, in connection with the exercise by Declarant of the power of
attorney set forth in Section 16.6.
Section 16.8. Limitation on Amendment. This Article may not be amended without the
written approval of Declarant attached to the instrument of amendment.
IN WITNESS WHEREOF, the undersigned, being Declarant herein, has executed this
instrument the day and year first hereinabove written.
CONTINENTAL RESIDENTIAL, INC., a California corporation,
d/b/a Continental Homes
By_
Title
By_
Title
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STATE OF CALIFORNIA }
) ss.
COUNTY OF SAN DIEGO )
On . before me, , Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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Exhibit "A"
The Real Property
Lots 1 arid 2 of CITY OF CARLSBAD TRACT 98-15 RANCHO
CARRILLO VILLAGE "B", according to Map thereof No.
, filed with the County Recorder of San Diego
County, California on , 2000.
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Exhibit "B"
Phasing of the Project
(Page 1 of 2)
Phase
1
2
3
4
5
6
7
No. ofDU's
14
18
18
20
17
18
19
Lot No.
1
1
1
1
1
2
2
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