HomeMy WebLinkAboutCT 98-19; Roesch Property Residential Subdivision; Tentative Map (CT) (50)AUG-30-01 THU 10:26 AM HSR&G FAX NO, 619 232 6828 P, 02/02
HECHT
SOLBERC
ROBINSON
GOLDBERG
LLP
SUSAN LEE DALY
ATTORVRY AT LAW
October 4, 2000
Via U.S. Mail
Ms. Anne Hysong
Mr. Mike Shirey
City of Carlsbad
Planning Department
1635 Faraday Avenue
Carlsbad, California 92008
Re: Shorepointe: Carlsbad Tract No. 97-14 Unit 1 and Carlsbad Tract No. 97-14 Unit 2
(Mariano) & Carlsbad Tract No. 98-19 (Roesch)
Dear Ms. Hsyong and Mr. Shirey:
Enclosed for your file is a copy of the Declaration of Covenants, Conditions and Restnctions for
Shorepointe ("CC&Rs") which was recorded in the Office of the County Recorder of San Diego County,
California, on May 26, 2000, as Document No. 2000-0279190.
If you have any questions, please do not hesitate to call me.
Very truly yours,
Susan Lee Daly
HECHT, SOLBERG, ROBINSON & GOLDBERG LLP
SLDvjm
Enclosure
Mr. Tom Farrar (w/o enc)cc:
rwWXTAN PAOSI<or<:pvinte'.Lir\Hs\ong!00*00.
ATTORNEYS A rUw 600 Wcsr BROAJJWAC, Ktcuru Fuxm SAN Dttco, CAUFOBVU 9210J IEUPHONC 619239.3444 F/KSMILE 619.252.6828
HECHT
SOLBERG
ROBINSON
GOLDBERG^^=
LLP
SUSAN LEE DALY
ATTORNEY AT LAW
February 3, 2000
Via Overnight Express
Ms. Anne Hysong
Mr. Mike Shirey
City of Carlsbad
Planning Department
1635 Faraday Avenue
Carlsbad, California 92008
Re: Shorepointe: Carlsbad Tract No. 97-14 Unit 1 and Carlsbad Tract No. 97-14 Unit 2
(Mariano) & Carlsbad Tract No. 98-19 (Roesch)
Dear Ms. Hsyong and Mr. Shirey:
As requested by Mr. Gregg Linhoff of Standard Pacific of San Diego, I am sending you a draft of
the Declaration of Restrictions for Shorepointe ("CC&Rs"). The CC&Rs cover both the Mariano and Roesch
properties. As I mentioned to Mr. Shirey today during our telephone call, the original cc&rs for Mariano
has been revised to create one homeowners association for both properties. The CC&Rs incorporate all
of the conditions required for Mariano and Roesch properties. As I mentioned to Mr. Shirey, having one
homeowners association will benefit all the home buyers because the consolidation will reduce the
homeowners assessments (i. e. there will be one management company). For your convenience, the following
chart cross-references the conditions required to be addressed in the CC&Rs for both the Roesch and Mariano
properties.
Planning Commission Resolution No. 4186
Condition 12a
Condition 12b
Condition 12c
Condition 13
Condition 28
Condition 39
Condition 44
Condition 46
CC&Rs
Section 12.1
Section 9.7
Section 4. 15
Sections 7.25, 7.26 & 9.1 -
9.3
Section 12.14
Section 12.15
Section 12.16
Section 7.35
ATTORNEYS AT LAW 600 WEST BROADWAY, EIGHTH FLOOR SAN DIEGO, CALIFORNIA 92101 TELEPHONE 619-239.3444 FACSIMILE 619.232.6828
Ms. Anne Hysong
Mr. Mike Shirey
February 3, 2000
Page 2
Condition 47
Condition 48
Condition 49
Condition 59
Condition 60
Condition 62
Condition 74
Condition 79
Condition 91
Recital E, Sections 2.2(h),
7.25, 7.26(a) & 7.27,
Sections 7.25 & 9. l(a)(vii)
Sections 7.33(a) &
9.1(a)(viii)
Sections 4.2, 9. 1,9.2, 9.3 &
9.5
Sections 9.3 & 9.4
Section 7.21
Recital E & Section
9.1(a)(vi)
Section 7.37
Section 7.29
Planning Commission Resolution 4626
Condition 15A
Condition 15B1
CC&Rs
Section 12.1
Section 12.3(e)
1. Please note that the Conditions of Approval for Planning Commission Resolution No. 4186 did not require
this requirement. In lieu of the exact wording referred to in Condition 15B of Planning Commission Resolution No.
4629,1 have provided Section 12.3(e) which states:
Approval of City. Any amendment to this Declaration shall require the consent of the City
Attorney of the City and the Planning Director of the City if such amendment would reduce
or eliminate the standards of maintenance and repair of Lots, Common Area or Common
Maintenance Area or reduce or eliminate any right of the City set forth in this Declaration.
I have assumed that the City would only want to review and approve amendments related to the restrictions that
the City initially imposed in the CC&Rs. Otherwise, the City may be asked to review proposed amendments irrelevant
to any of the City requirements. Also, I have prepared many cc&rs which have been reviewed by the Planning
Department of the City of Carlsbad and this is the first time that Condition 15B has been imposed. We, therefore,
request that you permit the proposed language of Section 12.3(e) to satisfy Condition 15B.
Ms. Anne Hysong
Mr. Mike Shirey
February 3, 2000
Page3
Condition 15.C
Condition 15D
Condition 18
Condition 19
Condition 20
Condition 2 12
Condition 27
Condition 30
Condition 3 1
Condition 34
Condition 50
Section 9.7
Section 4. 15
Recital E& Section 7. 15
Section 7.25
Sections 7.25 & 9.1(a)(vii)
Sections 7.33 & 9.1(a)(viii)
Section 7.25
Sections 4.2, 9.1, 9.2 , 9.3 &
9.5
Sections 9.3 & 9.4
Section 7.21
Section 7.37
Planning Commission Resolution 4629
Condition 21
CC&Rs
Sections 7.33 & 9.1(a)(viii)
If you have any questions, please do not hesitate to call me.
Very truly yours,
Susan Lee Daly
HECHT, SOLBERG, ROBINSON & GOLDBERG LLP
SLD:jm
Enclosure
cc: Mr. Gregg Linhoff (w/enc; via overnight)
4629.
Sections 7.33 & 9.1 (a)(viii) comply with revised Condition 21 for Planning Commission Resolution
Recording Requested By
and
When Recorded Return To:
HECHT, SOLBERG, ROBINSON & GOLDBERG UP
Ms. Susan L. Daly
600 West Broadway, Eighth Floor
San Diego, California 92101
THE ORIGINAL OF THIS DOOM
m RECQRe OH HAY 26, 2000
DOCUHENT NUMBER 2000-0279190
GREGORY J. SMITH, COUNTY RECORDER
SAN DIEGO COUNTY RECORDER'S OFFICE
TIME: 3:58 PM
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
SHOREPOINTE
PLANNED UNIT DEVELOPMENT
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TABLE OF CONTENTS
PAGE
RECITALS 1
ARTICLE I DEFINITIONS 2
1.1 Annexable Property 2
1.2 ARC 2
1.3 Articles 2
1.4 Association 2
1.5 Board 2
1.6 Brush Management Lots 2
1.7 Bylaws 2
1.8 City 2
1.9 Common Area 2
1.10 Common Maintenance Area 2
1.11 Construction Restriction Areas 3
1.12 Declarant 3
1.13 Declaration 3
1.14 Final Maps 3
1.15 Fire Protection Requirements 3
1.16 Lot 3
1.17 Member 3
1.18 Mortgage 3
1.19 Mortgagee 3
1.20 Owner 3
1.21 Phase 3
1.22 Properties 3
1.23 Purchaser 3
1.24 Real Property 3
ARTICLE II PROPERTY RIGHTS IN COMMON AREA 3
2.1 Title to Common Area 3
2.2 Owners' Easements of Enjoyment 4
2.3 Delegation of Use 5
ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 5
3.1 Membership 5
3.2 Voting Rights 5
3.3 Approval By Each Class of Members 5
ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION 5
4.1 Creation of Lien and Personal Obligation for Assessments 5
4.2 Purpose of Assessments 6
4.3 Limitation on Regular and Special Assessments 6
4.4 Individual Assessments 7
4.5 Uniform Rate of Assessment 7
4.6 Date of Commencement of Regular Assessments; Due Dates 7
4.7 Effect of Non-Payment of Assessments; Remedies of Association 7
4.8 Schedule of Monetary Penalties 8
4.9 Treatment of Monetary Penalty 8
4.10 Subordination of the Lien to First Mortgages 9
4.11 Estoppel Certificate 9
4.12 Personal Liability of Owner 9
4.13 Exempt Property 9
4.14 Model Residences 9
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PAGE
4.1 5 Assessments Levied By City 9
4.16 Capitalization of Association 10
ARTICLE V GOVERNMENTAL REGULATIONS 10
ARTICLE VI ARCHITECTURAL CONTROL 10
6.1 Architectural Review Committee 10
6.2 ARC Approval 10
6.3 Approved Conditions 10
6.4 Notification 11
6.5 Waiver 11
6.6 No Liability 11
6.7 Design Criteria 11
6.8 Variances 11
6.9 ARC Guidelines 12
6.10 Enforcement 12
6.11 Declarant Exemption 12
ARTICLE VII USE RESTRICTIONS 12
7.1 Antennae 12
7.2 Nuisances . . 13
7.3 Exterior Maintenance and Repair; Owner's Obligations 13
7.4 Drainage 13
7.5 Subsurface Drainage Systems 13
7.6 Water and Sewer Systems 14
7.7 No Hazardous Activities 14
7.8 Unsightly Articles 14
7.9 Temporary and Prefabricated Structures 14
7.10 Mining and Drilling 14
7.11 View Impairment 14
7.12 Residential Use 14
7.13 Residential Area Improvements 15
7.14 Landscaping 15
7.15 Parking and Vehicular Restrictions 16
7.16 Further Subdivision 17
7.17 Animals 17
7.18 Signs 17
7.19 Trees; Street Trees 17
7.20 Slope Control, Use and Maintenance 18
7.21 Sight Distance Corridors 18
7.22 Common Walls and Fences 18
7.23 Outdoor Lighting 18
7.24 Easement Reservations 19
7.25 Open Space Easement 19
7.26 Restrictions on Certain Common Maintenance Areas; City and
Coastal Commission Restrictions 19
7.27 Park 20
7.28 Post-Tension Slabs 20
7.29 Lots Affected By Building Setback and Fire Protection Requirements ... 20
7.30 Lot 105 of Unit 1 Map 21
7.31 Limitation on Basketball Hoops 21
7.32 Limitation on Play Structures 21
7.33 Trail Easement 21
7.34 Window Coverings 21
7.35 Use of Reclaimed Water for Irrigation 21
7.36 Mail Boxes 22
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PAGE
ARTICLE VIII INSURANCE AND CONDEMNATION 22
8.1 Insurance 22
8.2 Condemnation 23
ARTICLE IX COMMON AREA AND COMMON MAINTENANCE AREA;
MAINTENANCE RESPONSIBILITIES 23
9.1 Association Maintenance 23
9.2 Association Maintenance Standards; Commencement of Maintenance . 26
9.3 Drainage Facilities Maintenance Program 26
9.4 Owner Maintenance 27
9.5 Maintenance of Walls and Fences 27
9.6 Association's Right to Repair Neglected Lots 27
9.7 Maintenance By City 28
9.8 Use of Proceeds To Repair 28
ARTICLE X ANNEXATION 28
10.1 By Association 28
10.2 By Declarant 28
ARTICLE XI RIGHTS OF LENDERS 28
11.1 Payments of Taxes or Premiums by First Mortgagees 28
11.2 Priority of Lien of Mortgage 29
11.3 Curing Defaults 29
11.4 Approval of First Mortgagees 29
11.5 Restoration of Common Area 29
11.6 Professional Management 29
11.7 Notice to Mortgagees 29
11.8 Documents to be Available 30
11.9 Conflicts 30
ARTICLE XII GENERAL PROVISIONS 30
12.1 Enforcement 30
12.2 Severability 30
12.3 Amendments 30
1 2.4 Extension of Declaration 32
1 2.5 Encroachment Easement 32
12.6 Special Responsibilities of Association 33
12.7 Attorneys' Fees 33
12.8 Notice of Actions Against Declarant 33
12.9 Construction Defect Disputes 34
12.10 Limitation of Restrictions on Declarant 37
12.11 No Interference With City Ordinances 38
12.12 Conflict Of Provisions 38
12.13 Documents Provided To Prospective Purchasers 38
12.14 Notice Regarding Lights, Noise, Traffic and Circulation 39
12.15 Availability of Caltrans and North County Transit 39
12.16 Notice Regarding Adjacent Agricultural Operations 39
EXHIBITS: "A": Annexable Property
"B": Common Area and Common Maintenance Areas
"C": Construction Restriction Areas
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DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR
SHOREPOINTE
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR SHOREPOINTE
("Declaration") is made as of H&X Z£ . 2000, by STANDARD PACIFIC CORP., a Delaware
corporation ("Declarant"), with reference to the following:
RECITALS:
A. Declarant is the owner of the real property located in the City of Carlsbad, County of
San Diego, California, described as:
Lots 22 through 27, inclusive, 75 through 80, inclusive, 105 through 108,
inclusive, and 129 through 133, inclusive, of CITY OF CARLSBAD TRACT 97-14
UNIT NO. 1 - MARIANO according to Map thereof No. 13840 ("Unit 1 Map")
filed in the Office of the County Recorder of San Diego County, California, on
September 1, 1999; and
Remainder Parcel of Carlsbad Tract No. 92-02 SAMBI SEASIDE HEIGHTS UNIT
1, in the City of Carlsbad, County of San Diego, State of California, According
to Map thereof No. 13378, filed in the Office of the County Recorder of San
Diego County, California, on December 9, 1996 ("Remainder Parcel")
(collectively referred to as "Phase 1").
Lots 22 through 27, inclusive, 75 through 80, inclusive, 105 through 108, inclusive, and 129 through
133, inclusive, of the Unit 1 Map are "Lots"; there is no "Common Area" (as such terms are defined
in Article I of this Declaration). For purposes of this Declaration the Remainder Parcel is a part of Lot
105 of the Unit 1 Map.
B. Declarant may from time to time annex to this Declaration and to the jurisdiction of
CARLSBAD SHOREPOINTE HOMEOWNERS ASSOCIATION, a California nonprofit mutual benefit
corporation ("Association") some or all of the "Annexable Property" as additional "Phases" (as such
terms are defined in Article I of this Declaration). This Declaration initially encumbers only Phase 1.
Reference in this Declaration to the "Properties" refers to Phase 1 described above and such additional
Phases as they become annexed to this Declaration.
D. It is planned to develop Phase 1, and those portions of the Annexable Property which
are annexed to this Declaration pursuant to this Declaration, as a Common Interest Development described
in §1351(k) of the California CIVIL CODE as a "Planned Development" consisting of approximately one
hundred sixty-seven (167) single-family detached homes, together with Common Area lots. The
development will be consistent with the overall development plan submitted to and approved by the
City of Carlsbad ("City"). The Planned Development is planned to be constructed in Phases. Declarant
reserves the right during the development of the Properties to change the design, size, type and price
of the homes to be built within the Properties.
E. The "Owners" of Lots will be members of the Association (as such term is defined in
Article I of this Declaration). The Association shall maintain the Common Area and the "Common
Maintenance Area" (as such term is defined in Article I of this Declaration). It is currently expected that
the Common Area will consist of a park with a tot lot, two (2) open space lots with walking trails and
a desiltation basin, and a recreational vehicle storage facility. Common Maintenance Areas are planned
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to include (i) portions of Lots, (ii) a portion of the Remainder Parcel and (iii) may include areas outside
the Properties, over which maintenance easements are conveyed to the Association or which the
Association is otherwise obligated to maintain.
F. Before selling any of the Lots, Declarant wishes to impose the following plan of covenants
and restrictions on Phase 1 and each additional Phase which becomes annexed to this Declaration.
NOW, THEREFORE, Declarant hereby certifies and declares and does hereby establish the following
general plan for the protection and benefit of Phase 1 and each additional Phase which is annexed hereto
and has fixed and does hereby fix the following protective covenants and restrictions upon each and
every ownership interest in Phase 1 and each additional Phase which is annexed hereto under which
covenants and restrictions each ownership interest shall be held, used, occupied, leased, sold, encumbered,
conveyed and/or transferred. Each and all of the covenants and restrictions are for the purpose of
protecting the value and desirability of and shall inure to the benefit of and shall run with and be binding
upon and pass with each Lot and Common Area within the Properties and each and every ownership
interest therein and shall inure to the benefit of, apply to and bind the respective successors in title or
interest of Declarant. The covenants and restrictions set forth herein are enforceable equitable servitudes
as described in California CIVIL CODE §1354. The covenants and restrictions herein shall neither bind
nor burden any portion of the Annexable Property until such portions become annexed to this Declaration
pursuant to Article X of this Declaration.
ARTICLE I
DEFINITIONS
1.1 "Annexable Property" — All of the real property described in Exhibit "A" attached to
the Declaration, including all improvements constructed thereon, which may be annexed to the Properties.
1.2 "ARC" — The architectural review committee created pursuant to Article VI of this
Declaration.
1.3 "Articles" — The Articles of Incorporation of the Association.
1.4 "Association" - CARLSBAD SHOREPOINTE HOMEOWNERS ASSOCIATION, a California
Nonprofit Mutual Benefit Corporation.
1.5 "Board" — The Board of Directors of the Association.
1.6 "Brush Management Lots" — Certain Lots within the Properties which are subject to
the Fire Protection Requirements; the Owners of these Lots are subject to requirements set forth in Section
7.29.
1.7 "Bylaws" — The Bylaws of the Association.
1.8 "City" — The City of Carlsbad, California.
1.9 "Common Area" — All real property owned in fee or easement by the Association. Common
Area may also include portions of any Annexable Property annexed to the Declaration from time to time.
1.10 "Common Maintenance Area" — Those portions of Lots and other real property (other
than Common Area), the maintenance of which is the responsibility of the Association as provided by
easement or agreement.
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1.11 "Construction Restriction Areas" — Portions of the Brush Management Lots are subject
to building setback and Fire Protection Requirements; the restrictions applicable to these areas are set
forth in Section 7.29{b).
1.12 "Declarant" — STANDARD PACIFIC CORP., a Delaware corporation, its successors and
assigns, if such successor or assign should acquire more than five (5) Lots for the purpose of development,
and the rights of "Declarant" are assigned to them.
1.13 "Declaration" — This Declaration of Covenants, Conditions and Restrictions for
SHOREPOINTE.
1.14 "Final Maps" — The final subdivision maps of the Unit 1 Map, "Unit 2 Map" (as defined
in Exhibit "A", "Tract 98-19" (as defined in Exhibit "A") and any other final subdivision maps covering
the Properties.
1.15 "Fire Protection Requirements" — The fire protection requirements set forth in the
"Landscape Manual of the City adopted by the City Council on November 13, 1990" as it may be amended
from time to time.
1.16 "Lot" — Any plot of land shown as a separate lot or parcel upon any recorded Final Map
or parcel map of any portion of the Properties, with the exception of the Common Area and the Remainder
Parcel. For purposes of this Declaration, the Remainder Parcel is a part of Lot 105 of the Unit 1 Map
and is not a separate Lot.
1.17 "Member" — An Owner who is entitled to membership in the Association as provided
in the Declaration.
1.18 "Mortgage" — A Deed of Trust as well as a mortgage encumbering a Lot.
1.19 "Mortgagee" — The beneficiary of a Deed of Trust as well as the mortgagee of a Mortgage.
1.20 "Owner" — The record owners, whether one or more persons or entities, of fee simple
title to any Lot, including contract sellers, but excluding those having such interests merely as security
for the performance of an obligation.
1.21 "Phase" — That portion of the Properties which is described as a separate phase on a
Final Subdivision Public Report issued by the California Department of Real Estate.
1.22 "Properties" — The real property described as Phase 1, and such additional real property
as may be annexed to the Declaration and brought within the jurisdiction of the Association.
1.23 "Purchaser" — Any Owner of a Lot who acquires a Lot from Declarant for the Owner's
own use. Purchaser does not include any transferee of Declarant in connection with a reorganization
or restructuring of Declarant or who is designated as a Declarant under the provisions of this Declaration.
1.24 "Real Property" — The Properties and Annexable Property.
ARTICLE II
PROPERTY RIGHTS IN COMMON AREA
2.1 Title to Common Area. Declarant will convey fee simple title to the Common Area, if
any, in each Phase to the Association prior to the first conveyance of a Lot in that Phase to a Purchaser
free and clear of all monetary encumbrances and liens, except real property taxes and assessments which
may be due but are not delinquent, and easements, covenants, conditions, reservations and other
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exceptions to title then of record, including those set forth in the Final Maps of which the Common Area
is a part and in the Declaration.
2.2 Owners' Easements of Enjoyment. Each Owner shall have a right and easement of ingress,
egress and of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with
the title to the Owner's Lot, subject to the following provisions:
(a) The right of the Association to suspend the voting rights and right to use of any
recreational facilities on the Common Area by an Owner for any period during which any
Association assessment against his Lot remains unpaid; and for a period not to exceed thirty
(30) days for any infraction of the published rules and regulations of the Association. No suspen-
sion shall be effective unless the Owner has been given fifteen (15) days prior notice of the
suspension and the reasons therefor and the Owner has been given an opportunity to be heard
by the Board, orally or in writing, not fewer than five (5) days prior to the effective date of the
suspension. Notice may be given to the Owner by any method reasonably calculated to provide
actual notice, but if given by mail must be given by first-class or registered mail sent to the last
address of the Owner shown on the records of the Association.
(b) The right of the Board to dedicate or transfer all or any part of the Common Area
to any public agency, authority or utility for such purposes and subject to such conditions as
may be agreed to by the Board. No dedication or transfer of all or substantially all of the assets
of the Association shall be effective unless approved in accordance with the California
CORPORATIONS CODE.
(c) The right of the Board, in accordance with the Articles and Bylaws, to borrow
money for the purpose of improving the Common Area and, with the assent of two-thirds (%)
of each class of Members, hypothecate the Common Area.
(d) The right of access, ingress and egress of Owners over the Common Area and
the right of installation and use of utilities on the Common Area for the benefit of Lots, subject
to rules and regulations adopted by the Board.
(e) The right of the Board to grant maintenance, access and utility easements over
the Common Area to others and to convey portions of the Common Area to others.
(f) The right of the Board to adopt rules and regulations relating to the use of the
Common Area and the governance of the Properties.
(g) Restrictions on use of the Common Area imposed by the City in connection with
the City approvals described in Article V of the Declaration.
(h) The right of the Board to adopt rules and regulations relating to the use of the
recreational vehicle storage facility, including, but not limited to, the right to impose fees for
the usage of such facility and establish procedures and priorities for use of such facility.
(i) Subject to the obligation to restore and repair any damage, Declarant and its
sales agents, employees and independent contractors shall have:
(i) A non-exclusive easement over the Common Area for the purpose of
making repairs to the Common Area, and for the purpose of access for constructing,
marketing and maintaining the Properties, including all Phases of the Real Property; and
(ii) The right to the non-exclusive use of the Common Area for the purpose
of maintaining sales offices and signs reasonably necessary to market the Lots to the
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public for a period of not more than five (5) years after conveyance of all of the Common
Area to the Association, or the sale of all Lots within the Real Property to Purchasers,
whichever is first to occur. The use of the Common Area by Declarant and its agents
shall not unreasonably interfere with the use of the Common Area by the Class A Members
of the Association.
2.3 Delegation of Use. Any Owner may delegate, in accordance with the Bylaws, his rights
with respect to use of the Common Area and facilities to the members of his family, his tenants or contract
purchasers who reside on his Lot.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
3.1 Membership. Every Owner of a Lot which is subject to assessment by the Association
shall be a Member of the Association. Membership is appurtenant to and may not be separated from
ownership of a Lot.
3.2 Voting Rights. The Association shall have two (2) classes of voting membership:
(a) Class A. Class A Members shall be all Owners, with the exception of Declarant,
and shall be entitled to one (1) vote for each Lot owned. When more than one (1) person holds
an interest in any Lot, all such persons shall be Members. The vote for the Lot shall be exercised
as the Owners among themselves determine, but in no event shall more than one (1) vote be
cast with respect to any Lot.
(b) Class B. Class B Member(s) shall be Declarant and shall be entitled to three (3)
votes for each Lot owned. The Class B membership shall cease and be converted to Class A
membership on the happening of the earlier of the following to occur:
(i) Two (2) years following the first conveyance of a Lot to a Purchaser
pursuant to the most recently issued original Final Subdivision Public Report issued by
the California Department of Real Estate for a Phase; or
(ii) Four (4) years following the date of the first conveyance of a Lot to a
Purchaser pursuant to the original Final Subdivision Public Report issued by the California
Department of Real Estate for Phase 1.
3.3 Approval By Each Class of Members. Unless otherwise stated in this Declaration, any
provision of the Articles, the Bylaws or this Declaration, which expressly requires the approval of a
specified percentage of the Members before being undertaken, shall require the approval of Declarant.
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS
TO ASSOCIATION
4.1 Creation of Lien and Personal Obligation for Assessments. Declarant, for each Lot owned,
covenants, and each Owner of a Lot by acceptance of a deed to a Lot, whether or not it shall be so
expressed in the deed, is deemed to covenant to pay to the Association: (a) regular assessments; and
(b) special assessments; and (c) individual assessments. The regular and special assessments, together
with interest, late charges, costs and reasonable attorneys' fees, shall be a charge on the land and shall
be a continuing lien upon the Lot against which the assessment is made. The lien shall be effective upon
recordation of a notice of delinquent assessment. Each assessment, together with interest, late charges,
costs and reasonable attorneys' fees, shall also be the personal obligation of the person who was the
Owner of the Lot at the time the assessment is due. The personal obligation for delinquent assessments
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shall not pass to successors in title of a Lot, unless expressly assumed by them. An individual assessment
shall not be a lien on any Lot except as otherwise provided in Section 4.4 below.
4.2 Purpose of Assessments. The assessments levied by the Association shall be used exclu-
sively to promote the recreation, health, safety and welfare of the residents of the Properties, for the
improvement and maintenance of the Common Area and Common Maintenance Area, and to reimburse
the Association for the costs incurred in bringing an Owner into compliance with the Articles, Bylaws,
Declaration and rules and regulations adopted by the Board. The regular assessment is the assessment
determined annually by the Board to meet the expenses of the Association, including the establishment
of reserve accounts for the periodic maintenance, repair and replacement of the Common Area and
Common Maintenance Area, for the next fiscal year based upon the annual budget adopted by the Board
pursuant to the Bylaws. A special assessment is an assessment the Board, in its discretion, determines
necessary if the Association's available funds are or will become inadequate to meet the estimated
expenses of the Association for the fiscal year. The Board may levy the entire special assessment immedi-
ately or levy it in installments over a period the Board determines appropriate. An individual assessment
against a particular Owner only may be levied by the Board as set forth in Section 4.4 of the Declaration.
The Board shall provide notice by first-class mail to each Owner of any increase in the regular assessment
or of any special assessment not fewer than thirty (30) nor more then sixty (60) days prior to the increased
regular assessment or special assessment becoming due.
4.3 -Limitation on Regular and Special Assessments. The Board shall levy regular and special
assessments sufficient to perform the obligations of the Association as provided in the Declaration and
Bylaws; provided, however, except for assessment increases necessary for emergency situations:
(a) the Board may not increase the regular assessments for any fiscal year unless
the Board has complied with the provisions of California CIVIL CODE §1365.5 (preparation and
distribution of the budget), and
(b) the Board may not impose a regular assessment that is more than twenty percent
(20%) greater than the regular assessment for the Association's preceding fiscal year nor special
assessments which in the aggregate exceed five percent (5%) of the budgeted gross expense
of the Association for the fiscal year,
without the approval of Owners casting a majority of the votes at a meeting or election of the Association
conducted in accordance with Chapter 5 (commencing with §7510) of Part 3 of Division 2 of Title 1
of the California CORPORATIONS CODE and §7613 of the California CORPORATIONS CODE at which a quorum
was present or participated. For purposes of this Section, "quorum" means more than fifty percent (50%)
of the Owners. An emergency situation is any one of the following:
(1) An extraordinary expense required by an order of a court;
(2) An extraordinary expense necessary to repair or maintain the Properties or any
part of it for which the Association is responsible where a threat to personal safety in the
Properties is discovered; or
(3) An extraordinary expense necessary to repair or maintain the Properties 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 pro forma operating budget under CIVIL CODE §1365.
However, prior to the imposition or collection of an assessment under this subsection, the Board
shall pass a resolution containing written findings as to the necessity of the extraordinary expense
involved and why the expense was not or could not have been reasonably foreseen in the
budgeting process, and the resolution shall be distributed to the Members with the notice of
assessment.
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The term "regular assessment for the Association's preceding fiscal year" as used in thisSection is deemed
to be the regular assessment which would have existed in the absence of any subsidy of assessments
agreed to be paid by Declarant. Anything in this Section to the contrary notwithstanding, the limitation
on regular and special assessments shall comply with the laws of the State of California at the time
the regular or special assessment is levied by the Association.
4.4 Individual Assessments. The Association may also impose a specific assessment against
an individual Member to reimburse the Association for costs incurred in bringing a Member or his Lot
into compliance with the provisions of the Declaration, the Articles, the Bylaws and the Association
rules and regulations, and architectural guidelines, which assessment may be imposed upon the vote
of the Board after notice and an opportunity for a hearing which satisfy the requirements of §7341 of
the California CORPORATIONS CODE; provided, however, that except to the extent the specific assessment
is to reimburse the Association for the cost of collecting assessments, a specific assessment levied
pursuant to this Section shall not constitute a lien on the Owner's Lot.
4.5 Uniform Rate of Assessment. Both regular and special assessments shall be fixed at a
uniform rate for all Lots and may be collected on a monthly or other periodic basis as determined by
the Board.
4.6 Date of Commencement of Regular Assessments; Due Dates. Except as stated in Sections
4.13 and 4.14 below, the regular assessments shall commence as to all Lots in each Phase on the first
day of the month following the first conveyance of a Lot to a Purchaser in such Phase. The Board shall
fix the amount of the regular assessment against each Lot at least thirty (30) days in advance of each
regular assessment period. Written notice of the regular assessment shall be sent to every Owner. The
due dates for payment of all assessments shall be established by the Board and may be billed monthly
or on such other periodic basis as the Board may determine.
4.7 Effect of Non-Pavment of Assessments: Remedies of Association. Any assessment made
in accordance with this Declaration (including lien and non-lien assessments) shall be a debt of the Owner
of a Lot 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 rate of twelve percent (12%) per annum from thirty (30) days after the due
date until paid in full. In addition to charging interest, the Association shall have the right to impose
a late charge on unpaid assessments in an amount not exceeding the greater of $ 10.00 or ten percent
(10%) of each assessment which is fifteen (15) days delinquent.
Before the Association may place a lien upon a Lot to collect a debt which is past due,
the Association shall notify the Owner in writing by certified mail of the fee and penalty procedures
of the Association, provide an itemized statement of the charges owed by the Owner, including items
on the statement which indicate the principal owed, any late charges and the method of calculation,
any attorney's fees and the collection practices used by the Association, including the right of the
Association to the reasonable costs of collection. Any payments toward such a debt shall be first applied
to the principal owed, and only after the principal owed is paid in full shall such payments be applied
to interest or collection expenses.
At any time after any assessments levied by the Association affecting any Lot have become
delinquent and provided the Board has complied with the requirements set forth in the preceding paragraph,
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 Lot, which notice shall state all amounts which have become delinquent with
respect to such Lot and the costs (including attorney's fees), interest and late charges which have accrued
thereon, the amount of any assessments relating to such Lot which is due and payable although not
delinquent, a description of the Lot with respect to which the delinquent assessments are owed, the
name of the record or reputed record Owner of such Lot, 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
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or its authorized agent and mailed in the manner set forth in CIVIL CODE §2924(b) to all record owners
of the Owner's interest in the Properties no later than ten (10) calendar days after recordation of the
notice of delinquency.
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 inSection
4.4) be and become a lien upon the Lot described therein, which lien shall also secure all other payments
and/or assessments which shall become due and payable with respect to said Lot 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 Lot prior and
superior to all other liens, except (a) all taxes, bonds, assessments and other levies which, by law, would
be superior thereto, and (b) the lien or charge of any first Mortgage of record.
The assessment lien may be enforced by sale by the Association after failure of the Owner
to pay the assessment. The sale shall be conducted in accordance with the provisions of §2924, §2924b
and §2924c of the California CIVIL CODE applicable to the exercise of powers of sale in mortgages or
in any other manner permitted by law. The Association shall have the power to purchase the Lot at the
foreclosure sale and to hold, lease, mortgage and convey the Lot. Suit to recover a money judgment
for unpaid assessments, rent and attorneys' fees shall be maintainable without foreclosing or waiving
the lien securing the assessment.
In the event the delinquent assessments and all other assessments which have become
due and payable with respect to the same Lot 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.
After expiration of thirty (30) days following the recording of a lien created pursuant
to this Section, 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 § § 2924, 2924(b), 2924(c) and 1367 of 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 Lot Owners, shall have the power to bid for the Lot at a foreclosure sale, and to acquire
and hold, lease, mortgage and convey the same. Suit to recover a money judgment for unpaid assess-
ments, rent and attorney's fees shall be maintainable without foreclosing or waiving the lien.
4.8 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 were adopted and distributed to the Owners pursuant to this Section.
4.9 Treatment of Monetary Penalty. A monetary penalty imposed by the Association as a
disciplinary measure for failure of a Member to comply with the Declaration, Bylaws or rules of the
Association or as a means of reimbursing the Association for costs incurred by the Association in the
repair of damage to the Common Area for which the Member was allegedly responsible or in bringing
the Member and his Lot into compliance with the Declaration, Bylaws or rules of the Association, shall
not be treated as an assessment which may become a lien against the Member's Lot enforceable as
provided in the California CIVIL CODE. This Section shall not apply to charges imposed against an Owner
which are reasonable late payment penalties for delinquent assessments nor charges to reimburse the
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Association for the loss of interest and for costs reasonably incurred (including attorneys' fees) in its
efforts to collect delinquent assessments.
4.10 Subordination of the Lien to First Mortgages. Except as otherwise provided by law, the
assessment lien shall be subordinate to the lien of any first Mortgage, and the sale or transfer of any
Lot pursuant to judicial or non-judicial foreclosure of a first Mortgage shall extinguish the lien of the
assessment as to payments which became due prior to the sale or transfer. No sale or transfer shall
relieve the Lot from lien rights for any assessments thereafter becoming due. Except as otherwise provided
by law, when the Mortgagee of a first Mortgage or other purchaser of a Lot obtains title to the Lot as
a result of foreclosure, the acquirer of title, his successors and assigns, shall not be liable for the share
of the common expenses or assessments by the Association chargeable to the Lot which was due prior
to the acquisition of title to the Lot by such acquirer, except for a share of the charges or assessments
resulting from a re-allocation of the charges or assessments which are made against all Lots.
4.11 Estoppel Certificate. The Association shall furnish or cause an appropriate officer to furnish,
upon demand by any person, a certificate signed by an officer of the Association setting forth whether
the assessments on a specified Lot have been paid. A properly executed certificate of the Association
as to the status of assessments on a Lot is binding upon the Association as of the date of its issuance.
4.12 Personal Liability of Owner. No Member may exempt himself from personal liability for
assessments levied by the Association, nor release the Lot owned by him from the liens and charges
for assessments by waiver of the use and enjoyment of the Common Area or by abandonment of his
Lot.
4.13 Exempt Property. All properties dedicated to and accepted by a local public authority,
and all properties owned by a charitable nonprofit organization exempt from taxation by the laws of
the State of California, shall be exempt from assessment by the Association. However, no land or improve-
ments devoted to dwelling use shall be exempt from assessments by the Association.
4.14 Model Residences. Conveyance of a Lot which is being used by Declarant for model
residence, sales office, design center, construction office or similar purposes (any of which uses are
referred to in this Section) shall not commence the regular assessments against such Lot or other Lots
within the Phase until discontinuance of use of such Lot as a model residence or conveyance of any
non-model residence Lot in the Phase, whichever first occurs.
4.15 Assessments Levied By City. In the event the City performs the necessary maintenance
of either Common Areas or the Common Maintenance Areas, including those areas required by the City
to be maintained by the Association, in accordance with Section 9.6 of this Declaration, the City shall
submit a written invoice to the Association for all costs incurred by the City to perform such maintenance
of the Common Areas and Common Maintenance Areas. The City shall provide a copy of such invoice
to each Owner, together with a statement that if the Association fails to pay such invoice in full within
the time specified, the City will pursue collection against the Owners pursuant to the provisions of this
Section. Said invoice shall be due and payable by the Association within twenty (20) days of receipt
by the Association. If the Association fails to pay such invoice in full within the period specified, payment
shall be deemed delinquent and shall be subject to a late charge in an amount equal to six percent (6%)
of the amount of the invoice. Thereafter the City may pursue collection from the Association by means
of any remedies available at law or in equity. Without limiting the generality of the foregoing, in addition
to all other rights and remedies available to the City, the City may levy an assessment against the Owners
of each Lot for an equal pro rata share of the invoice, plus the late charge. Such assessment shall
constitute a charge on the land and shall be a continuing lien upon each Lot against which the assessment
is levied. Each Owner or a Lot hereby vests the City with the right and power to levy such assessment,
to impose a lien upon their respective Lot and to bring all legal actions and/or to pursue lien foreclosure
procedures against any Owner and his respective Lot for purposes of collecting such assessment in
accordance with the procedures set forth in Section 4.7 of this Declaration.
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4.16 Capitalization of Association. Upon acquisition of record title to a Lot from Declarant,
in each Phase, each Owner who purchases a Lot from Declarant shall contribute to the capital of the
Association the amount of $200.00. The capital contribution shall be deposited by the buyer into a
purchase and sale escrow and disbursed from the escrow to the Association. Amounts paid pursuant
to this Section shall not be considered as advance payments of assessments. The capital contribution
payments are in addition to and not in lieu of regular and special assessments of the Association.
ARTICLE V
GOVERNMENTAL REGULATIONS
The Properties and their use are subject to the jurisdiction of the City, and the ordinances,
regulations and permits issued by the City, including the conditions to approval of the tentative tract
maps for the Final Maps, the Site Development Plans and Landscape Plans applicable to the Properties
and to coastal development permits and hillside development permits. Each Owner shall at all times comply
with each governmental ordinance, regulation or permit which is applicable to such Owner's Lot and
the Association shall at all times comply with each governmental ordinance, regulation or permit which
is applicable to the Common Area or Common Maintenance Area.
ARTICLE VI
ARCHITECTURAL CONTROL
6.1 Architectural Review Committee. No construction, development, alteration, grading,
landscaping, addition, excavation, modification, decoration, painting or reconstruction of the visible exterior
of any improvement, including a residence, patio cover, fence, landscaping or other yard improvements,
on any Lot shall be commenced or maintained until the plans and specifications therefor showing the
nature, design, kind, shape, height, width, color, materials and location have been submitted to and
approved in writing by a committee of not less than three (3) nor more than five (5) persons ("ARC").
All members of the ARC may be appointed and replaced by Declarant until one (1) year following issuance
by the California Department of Real Estate of the original Final Subdivision Public Report for Phase 1.
Thereafter, a majority of the members of the ARC may be appointed and replaced by Declarant and a
minority of the members of the ARC may be appointed or replaced by the Board until ninety percent
(90%) of the Lots in the Real Property have been conveyed of record to Purchasers or until five (5) years
following issuance by the California Department of Real Estate of the original Final Subdivision Public
Report for Phase 1, whichever shall first occur. Thereafter, all members of the ARC may be appointed
or replaced by the Board. ARC members appointed by Declarant or the Board need not be Members of
the Association. Persons submitting proposals or plans and specifications to the ARC (each person is
referred to as the "Applicant") must obtain a dated, written receipt for such plans and specifications
and furnish the ARC with the address to which communications from the ARC to the Applicant are to
be directed. No building additions, including patio covers, shall be permitted without the prior approval
of the City, as well as of the ARC. Building additions, including patio covers, may be permitted only
if they are consistent with the architecture of the residential unit located on the Lot. In addition to ARC
approval, certain improvements to a Lot may require a building permit or other approval from the City
and may further be subject to the Fire Protection Requirements.
6.2 ARC Approval. The ARC shall approve proposals or plans and specifications submitted
for its approval only if it deems that the construction, alteration, addition or other construction activity
contemplated thereby in the locations indicated will not be detrimental to the appearance of the Properties
and surrounding real property as a whole, and that the appearance of any structure or other improvement
will be in harmony with the surrounding structures and improvements.
6.3 Approved Conditions. The ARC may condition its approval of proposals or plans and
specifications on such changes thereto as it deems appropriate, and may require submission of additional
plans and specifications or other information prior to approving or disapproving material submitted. The
ARC may adopt, amend or supplement the architectural guidelines (a) concerning design and materials
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standards, rules and guidelines for construction activities; (b) setting forth procedures for the submission
of plans for approval; (c) requiring a reasonable fee ("Review Fee") payable to the ARC for any costs
involved to accompany each application for approval; and (d) specifying additional factors which it will
take into consideration in reviewing submissions. The ARC may require such detail in plans and specifica-
tions submitted for its review as it deems proper, including, without limitation, floor plans, site plans,
drainage plans, elevation drawings and description or samples of plantings, exterior materials and colors.
Until receipt by the ARC of all plans, specifications or other materials deemed necessary by the ARC,
the ARC may postpone review of any plans submitted for approval.
6.4 Notification. Decisions of the ARC and the reasons for decisions shall be transmitted
by the ARC to the Applicant at the address set forth in the application for approval within forty-five
(45) days after receipt by the ARC of all materials required by the ARC. Any application submitted pursuant
to this Article VI shall be deemed approved, unless the ARC's written disapproval or a request for additional
information or materials is transmitted to the Applicant within forty-five (45) days after the date of receipt
by the ARC of all required materials.
6.5 Waiver. The approval of the ARC to any proposals or plans and specifications or drawings
for any work done or proposed or in connection with any other matter requiring the approval and consent
of the ARC shall not be deemed to constitute a waiver of any right to withhold approval or consent as
to any similar proposals, plans and specifications, drawings or matters whatever subsequently or
additionally submitted for approval or consent.
6.6 No Liability. Neither the ARC, nor any members of the ARC, nor their duly authorized
representatives, shall be liable to any Applicant or Lot Owner for any loss, damage or injury arising out
of or in any way connected with the performance of the ARC'S duties, unless due to the willful misconduct
of the ARC.
6.7 Design Criteria. The ARC shall review and approve or disapprove all plans submitted to
it for any proposed improvement, alteration, addition or other construction activity on the basis of
satisfaction of the ARC with the grading plan, location of the improvements on the Lot, the finished
ground elevation, the color scheme, finish, design, proportions, architecture, shape, height, style, appropri-
ateness of proposed improvements, affect on adjoining Lots, the materials to be used, the kinds, pitch
or type of roof proposed, the planting, landscaping, size, height or location of vegetation on a Lot, and
on the basis of aesthetic considerations and the overall benefit or detriment to the Properties and
surrounding real property generally which would result from such improvement, alteration, addition or
other construction activity. Although the ARC shall take into consideration the aesthetic aspects of the
architectural designs, placement of buildings, landscaping, color, schemes, exterior finishes and materials,
and similar features, it shall not be responsible for reviewing, nor shall its approval of any plans or design
be deemed approval of any plan or design from the standpoint of adequacy of drainage, structural safety,
view impacts or conformance with building or other codes. The ARC approval of any particular construction
activity shall expire and the plans and specifications therefor shall be resubmitted for ARC approval if
substantial work pursuant to the approved plans and specifications is not commenced within six (6)
months after the ARC's approval of such construction activity. All construction activities shall be performed
as promptly and as diligently as possible and shall be completed within such reasonable period of time
specified by the ARC.
6.8 Variances. The ARC may authorize variances from compliance with any of the architectural
provisions of Articles VI and VII, including, without limitation, restrictions on height, size, floor area or
placement of structures, or similar restrictions, when circumstances such as topography, natural obstruc-
tions, hardship, aesthetic or environmental considerations may require. Such variances must be in writing,
and must be signed and acknowledged by at least a majority of the members of the ARC. The granting
of a variance shall not operate to waive any of the terms and provisions of Articles VI and VII for any
purpose except as to the particular property and particular provision covered by the variance, nor shall
it affect in any way the Owner's obligation to comply with all laws and regulations of any governmental
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authority affecting the use of his Lot, including, but not limited to, zoning and building requirements
of any governmental agency or entity having jurisdiction over the Lot.
6.9 ARC Guidelines. The ARC shall adopt rules for the conduct of its affairs and design
guidelines for construction activities. The architectural guidelines of the ARC may provide for the pre-
approval of certain specified types or categories of construction activities, provided that such pre-approved
construction activities are implemented by the affected Owner in conformance with the standards for
design, materials and other criteria established in the architectural guidelines for such pre-approved
construction activities. The ARC may from time to time adopt, supplement or amend architectural guide-
lines to establish, expand, limit or otherwise modify the categories and criteria for any pre-approved
construction activities.
6.10 Enforcement. The Association, Declarant and any Owner shall have the right to enforce
by any proceedings at law or in equity, all covenants, conditions, restrictions and reservations imposed
by the provisions of the Declaration and rules and regulations adopted pursuant to this Declaration. Each
Owner shall have a right of action against the Association for any failure of the Association to comply
with the provisions of the Declaration or of the Bylaws or Articles. Failure by the Association, Declarant
or any Owner to enforce any covenant, condition, restriction or reservation in the Declaration shall not
be deemed a waiver of the right to do so thereafter. The City shall have the right, but not the obligation,
to enforce the provisions of the Declaration and for such purposes shall be deemed a party hereto. In
the event the City files a legal action to enforce the provisions of the Declaration and it is the prevailing
party in the litigation, it shall be entitled to recover costs of suit and attorneys' fees incurred in the
litigation.
6.11 Declarant Exemption. This Article VI shall not apply to, and the ARC shall have no authority
or responsibility to review or approve any, improvements made by Declarant on any Lot or to the Common
Area or Common Maintenance Area.
ARTICLE VII
USE RESTRICTIONS
7.1 Antennae. Unless approved by the Board of the Association, Owners may not install
any antennae on the exterior of a residence for any purpose, except for an "Authorized Antenna." For
purposes of this Section, an Authorized Antenna means (a) an antenna that is designed to receive direct
broadcast satellite service, including direct-to-home satellite service, that is one meter or less in diameter,
(b) an antenna that is designed to receive video programming service, including multichannel multi point
distribution service, instructional television fixed service, and local multi point distribution service, that
is one meter or less in diameter or diagonal measurement, or (c) an antenna that is designed to receive
television broadcast signals. The installation of an Authorized Antenna shall be subject to the following
requirements:
(i) The proposed location for installation of an Authorized Antenna may be
reviewed by the Board in order to ensure that the visibility of the Authorized Antenna
is minimized with respect to other Owners. Such review by the Board shall not (A) unrea-
sonably delay or prevent installation maintenance or use of an Authorized Antenna, (B)
unreasonably increase the cost of installation, maintenance or use of an Authorized
Antenna; or (C) preclude reception of an acceptable quality signal.
(ii) If an Owner proposes to install an Authorized Antenna on the property
of another Owner, such installation must be approved in advance by the Board.
(iii) The Board may adopt additional restrictions on installation or use of an
Authorized Antenna as a part of the Association's Rules and Regulations so long as such
restrictions do not (A) unreasonably delay or prevent installation, maintenance or use
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of an Authorized Antenna, (B) unreasonably increase the cost of installation, maintenance
or use of an Authorized Antenna, or (C) preclude reception of an acceptable quality signal.
(iv) The Board may prohibit the installation of an Authorized Antenna if the
installation, location or maintenance of such Authorized Antenna unreasonably affects
the safety of managers, agents or employees of the Association and other Owners.
7.2 Nuisances. No rubbish or debris of any kind shall be placed or permitted to accumulate
anywhere within a Lot. No odor shall be permitted to arise from a Lot which renders the Lot or any portion
of a Lot unsanitary, unsightly or offensive to any street or to any portion of the Properties, or vicinity
thereof, or to its occupants. No noise or other nuisance shall be permitted to exist or operate upon any
portion of a Lot so as to be unreasonably offensive or detrimental to any other part of the Properties,
or vicinity thereof, or to their occupants. Without limiting the generality of any of the foregoing provisions,
no exterior speakers, horns, whistles, bells or other sound devices (other than security devices used
exclusively for security purposes), noisy or smoky vehicles, unlicensed off-road motor vehicles or other
items which unreasonably disturb other Owners or their tenants shall be located, used or placed on any
Lot. No vehicles may be operated upon any portion of the Properties not improved as a street, driveway
or parking area. Alarm devices used exclusively to protect the security of a residence and its contents
shall be permitted, provided that the devices do not produce annoying sounds or conditions as a result
of frequently occurring false alarms.
7.3 Exterior Maintenance and Repair; Owner's Obligations. No improvement within a Lot
shall be permitted to fall into disrepair, and each improvement shall at all times be kept in good condition
and repair by the Owner of the Lot.
7.4 Drainage. There shall be no interference with the established surface drainage pattern
over any Lot which affects any other portion of the Real Property unless an adequate alternative provision
is made for proper surface drainage and it is in accordance with all applicable governmental codes and
ordinances. "Established surface drainage" is defined as the drainage which exists at the time the overall
grading and landscaping of the Properties is completed by Declarant pursuant to grading plans approved
by the City.
There are created, granted and reserved non-exclusive easements appurtenant to each
Lot in the Real Property for drainage according to the patterns for drainage created by the approved
grading plans for the Real Property as well as according to the actual, natural and existing patterns for
drainage. Each Owner covenants and agrees that he shall not obstruct or otherwise interfere with the
drainage patterns of waters from adjacent Lots in the Real Property over his Lot or, in the alternative,
that in the event it is necessary and essential to alter the drainage pattern for the protection and use
of his Lot, he will make adequate provisions for proper drainage in accordance with the applicable
governmental grading ordinance.
No surface drainage shall be allowed from one Lot to another unless that drainage pattern
is part of the established surface drainage pattern. The soil level of each Lot adjacent to a building shall
be at least six (6) inches below the finished floor slab of the adjacent building.
7.5 Subsurface Drainage Systems. Subsurface drainage systems for the Lots within the Real
Property have been or will be installed by Declarant pursuant to plans and specifications approved by
the City ("Subsurface Systems"). The Subsurface Systems include pipes installed below the finished
grade of the Lots which transport water underground from the Lots to the streets. The Subsurface System
is described in detail on the grading plans for the Real Property on file with the City which are available
at the City. Before any excavation on a Lot, the Owner of the Lot is responsible for determining whether
the excavation will damage or interfere with the proper operation of the Subsurface System. Any Owner
who is responsible for causing any damage to the Subsurface System shall be responsible for repairing
or replacing such system.
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7.6 Water and Sewer Systems. No individual water supply system, water softener system
or sewage disposal system shall be permitted on any Lot unless the system is designed, located,
constructed and equipped in accordance with the requirements, standards and recommendations of
any applicable water district and any applicable governmental health authority having jurisdiction to control
and regulate those systems.
7.7 No Hazardous Activities. No activities shall be conducted nor shall any improvements
be constructed on a Lot which are or might be unsafe or hazardous to any person or property.
7.8 Unsightly Articles. No unsightly articles, including clotheslines, shall be permitted to remain
on any portion of a Lot which are visible from any street or from any other Lot. Without limiting the
generality of the foregoing, refuse, garbage and trash shall be kept at all times in covered, sanitary
containers commercially designed for that purpose (/. e., oil drums or similar substitutes for commercially
designed refuse receptacles are prohibited) and located within an enclosed area or areas appropriately
screened from the view of any other Lot or Real Property. The containers shall be exposed to the view
of neighboring Lots only when set out for a reasonable period of time (not to exceed twelve (12) hours
before and after scheduled trash collection hours). There shall be no exterior fires, except barbecue fires
contained within receptacles designed for that purpose which do not create a fire hazard or exterior
fires contained within screened and properly vented fireplaces or gas fire pits conforming to local building
codes; provided such use of receptacles or fireplaces is subject to restrictions set forth in Section 7.29,
if applicable. No bars or other solid materials (other than screens) shall be placed on the exterior of any
windows of a residence on a Lot.
7.9 Temporary and Prefabricated Structures. No tent, shed, shack, trailer or any temporary
building, improvement or structure shall be placed upon any portion of a Lot without the prior approval
of the ARC. The foregoing excludes construction trailers and other temporary or prefabricated structures
or improvements utilized during construction and sales activities.
7.10 Mining and Drilling. The surface of a Lot shall not be used for the purpose of mining,
quarrying, drilling, boring or exploring for or removing water, oil, gas or other hydrocarbons, geothermal
heat, minerals, rocks, stones, gravel or earth, nor shall oil wells, tanks, tunnels, mineral or geothermal
excavations or shafts be permitted upon the surface of any portion of a Lot.
7.11 View Impairment. There is no representation that any view exists from any Lot. Each
Owner, by accepting a deed to a Lot, acknowledges that grading of, construction on or installation of
improvements, including landscaping or the continued growth of landscaping, on other Lots within the
Properties and on surrounding real property may impair whatever view may exist from the Owner's Lot,
and each Owner consents to such impairment and waives any claim for view impairment.
7.12 Residential Use. All Lots within the Properties shall be improved and used solely for
single-family residential use, unless the ordinances of the City permit use by more than a single family;
provided, however, that this provision shall not preclude any Owner from renting or leasing all of his
Lot or room(s) within the dwelling by means of a written lease or rental agreement. No lease shall be
for a term of less than thirty (30) days. No Lot shall be used or caused to be used or allowed or authorized
to be used in any way, directly or indirectly, for any business, commercial, manufacturing, mercantile,
storage, vending or other non-residential purposes; except Lots may be used for model home sites,
construction offices, a design center, and display and sales office purposes during the construction and
sales period by Declarant. The provisions of this Section shall not preclude an Owner from maintaining
a home-office and conducting business activities therefrom on the following conditions: (a) there is not
external evidence of such activity; (b) such activities are conducted in conformance with all applicable
government ordinances; (c) the patrons or clientele of such activities do not visit the Lot or park
automobiles or other vehicles within the Properties; (d) the existence or operation of such activities is
not apparent or detectable by sight, sound or smell from outside of the boundaries of the Lot; and (e)
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such activities are consistent with the residential character of the Properties and conform with the
provisions of this Declaration.
7.13 Residential Area Improvements.
(a) Residence. No Lot shall be improved except with one residence (unless additional
residences are permitted by the ordinances of the City) designed to accommodate no more than
a single family (unless the ordinances of the City permit use by more than a single family) and
its servants and occasio.nal guests, plus a garage, fencing and such other improvements as are
necessary or customarily incident to a single-family residence. Subject to applicable requirements
of any governmental agency or entity having jurisdiction over the Lot, no part of the construction
on any Lot shall exceed two (2) stories in height above the finished pad. Chimneys, railings,
vent stacks, pediments and similar architectural features of normal size, height and distribution
may rise above the two (2) story construction limit. No projections of any type shall be placed
or permitted to remain above the roof of any building within the Lot, except chimneys, railings,
vent stacks, pediments and similar architectural features. Anything contained in this Section
to the contrary notwithstanding, any structure constructed on a Lot shall be subject to the
ordinances of the City regulating the height of structures. No wiring or air conditioning fixture,
water softeners or other devices (other than solar heating devices approved by the Board) shall
be installed on the exterior of a residence or be allowed to protrude through the walls or roof
of the residence (with the exception of those items installed during the original construction
of the residence).
(b) Utilities. Except for facilities installed by Declarant, a public utility company or
a governmental entity, all utility and storage areas or structures must be (i) completely concealed
from the view of any other Lot or street, or (ii) constructed of such design, materials, configuration
and in such location as to be compatible with the residence and other improvements on the Lot.
(c) Fences. All fences installed within the Properties shall be in conformance with
the fencing plan for the Properties approved by the City, if any. No fence within a Lot shall be
constructed or altered as to type or height without the approval of the ARC. In the event fencing
within the Properties requires replacement, the replacement fencing shall be substantially identical
to the fencing being replaced, unless other replacement fencing is approved by the ARC.
(d) Flag Poles. No flag pole shall be permitted in the front yard of a Lot; provided,
however, this provision shall not preclude any Owner from affixing a flag to the dwelling on a
Lot.
(e) Roofs. All structures shall be improved with fire retardant roofs, and no roof shall
be repaired or replaced with material different than originally installed by Declarant.
7.14 Landscaping. Within six (6) months after the close of escrow for the sale of a Lot by
Declarant to a Purchaser, the Owner shall install and shall thereafter maintain plants, shrubs, trees and
any other appropriate landscaping improvements, pursuant to plans and specifications approved by the
ARC, on those portions of the Lot which have not been landscaped by Declarant but are visible from
any street within the Properties or surrounding real property (other than those portions of the Lot within
the Common Maintenance Area).
Within one (1) year after the close of escrow for the sale of a Lot by Declarant to a
Purchaser, the Owner shall install and shall thereafter maintain plants, shrubs, trees and any other
appropriate landscaping improvements, pursuant to plans and specifications approved by the ARC, on
the rear yard portion of the Lot (other than those portions of the Lot within the Common Maintenance
Area).
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Each Owner shall properly maintain and periodically replace when necessary all trees,
plants, grass, vegetation and other landscaping improvements located on the Owner's Lot (other than
those portions of the Lot within the Common Maintenance Area). No plants or seeds infected with insects
or plant diseases, shall be brought upon, grown or maintained upon any Lot. If any Owner fails to install
or maintain landscaping in conformance with architectural guidelines or allows his landscaping to
deteriorate to a dangerous, unsafe, unsightly or unattractive condition, the ARC, upon thirty (30) days
prior written notice to the Owner, shall have the right either to seek any remedies at law or in equity
which it may have or to correct such condition and to enter upon the Owner's property for the purpose
of doing so, and the Owner shall promptly reimburse the ARC for the cost thereof.
7.15 Parking and Vehicular Restrictions.
(a) Prohibited Vehicles. No "Prohibited Vehicles" (as defined herein) shall be parked,
stored or kept on any Lot except wholly within an enclosed garage, and then only if the garage
door is capable of being fully closed. A Prohibited Vehicle is defined as: any commercial type
vehicle (including, but not limited to, any dump truck, cement mixer truck, oil or gas truck or
delivery truck); any inoperable vehicle or any other similar vehicle; or any vehicle or vehicular
equipment, mobile or otherwise, constituting a nuisance. Prohibited Vehicles shall not be allowed
in any driveway or other exposed parking areas, except for the purposes of loading, unloading,
making deliveries or emergency repairs ("Transitory Use"), provided that no Transitory Use shall
extend over more than twenty-four (24) hours during any seven (7) consecutive days.
(b) Recreational Vehicles. No "Recreational Vehicles" (as defined herein) shall be
parked, stored or kept on any Lot except (i) wholly within an enclosed garage, and then only
if the garage door is capable of being fully closed or (ii) within a fenced side or rear yard. A
Recreational Vehicle is defined as: any recreational vehicle (including, but not limited to, any
camper unit, house/car or motor home); or any bus, trailer, trailer coach, camp trailer, boat, aircraft
or mobile home. Recreational Vehicles shall not be allowed in any driveway or other exposed
parking areas, except for the purposes of Transitory Use, provided that no Transitory Use shall
extend over more than twenty-four (24) hours during any seven (7) consecutive days.
(c) Garages and Other Parking Areas. Garages or other parking areas shall be used
only for parking vehicles (including Recreational Vehicles and Prohibited Vehicles); provided,
however, if an Owner has fewer vehicles than the garage will accommodate, the extra space
in the garage may be used for temporary storage. An Owner of a residence with a garage which
provides for parking of more than two (2) vehicles may convert his additional parking space(s)
in the garage into an habitual living area which is a part of the residence on the Lot subject to:
(i) the prior approval of the ARC; (ii) City Code requirements and the prior approval of the City,
if required; and (iii) at least two (2) parking spaces remaining within the garage. There shall be
no parking in the driveways if the Owner's garage is not being utilized to the maximum designed
capacity for the parking of authorized vehicles, or if to do so obstructs free traffic flow, constitutes
a nuisance or otherwise creates a safety hazard. Garage doors shall be kept closed at all times,
except as reasonably required for ingress to and egress from the interiors of the garages.
(d) Repairs. No repairs or restorations of any vehicle or equipment shall be conducted
upon any Lot or elsewhere within the Properties, except (i) wholly within an enclosed garage
or (ii) within a fenced yard where activities are not visible from any street; provided, however,
that such activity is not undertaken as a business, and provided further that such activity may
be prohibited entirely if it constitutes a nuisance.
(e) Rules. The Board may adopt rules and regulations regulating parking within the
Properties.
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0
These restrictions shall not be interpreted in a manner which would permit any activity which
would be contrary to any ordinance of the City or other governmental agency having jurisdiction over
the Properties.
7.16 Further Subdivision. No Lot may be further subdivided (including division into time-share
estates or time-share uses) without the prior written approval of the Board; provided, however, that
nothing in this Section shall be deemed to prevent an Owner from: (a) selling a Lot to more than one
person to be held by them as tenants in common, joint tenants, tenants by the entirety or as community
property; (b) leasing or renting by any Owner of all of his Lot by means of a written lease or rental agree-
ment; or (c) adjusting the boundary of a Lot by boundary adjustment, parcel map or other procedure
authorized by the City. The provisions of this Section shall not apply to any Lot owned by Declarant.
Should Lot 134 be annexed to this Declaration, Declarant intends to further subdivide such Lot into
additional Lots.
7.17 Animals. No animals, fowl, poultry, fish, reptiles or insects of any kind ("Animals") shall
be raised, bred or kept on any Lot, except for dogs, cats, fish, tropical birds or such other typical household
pets; provided that such pets are not kept, bred or maintained for any commercial purpose nor in
unreasonable quantities nor in violation of any applicable law or ordinance. Each and every dog and cat
must carry an identification tag which contains the address of the Owner of the Animal. No Animal shall
be maintained in any Lot which constitutes a nuisance to other Owners of Lots. Animals belonging to
Owners, occupants or their licensees, tenants or invitees must be either kept within the enclosure, an
enclosed yard, or on a leash or bridle being held by a person capable of controlling the Animal.
Furthermore, to the extent permitted by law, any Owner shall be liable to each and all 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 Properties by an Owner or by members of his family, his tenants
or his guests; and it shall be the duty and responsibility of each Owner to clean up any excrement or
other unclean or unsanitary condition caused by such Animal within the Properties. Each and every Owner
shall comply with the rules and regulations governing the keeping of Animals adopted by the Board from
time to time.
7.18 Signs. No sign, poster, billboard, balloon or other display or advertising device of any
kind shall be displayed on, over or from any portion of the Properties, except (a) such signs, flags, poles
and banners (regardless of size or configuration) as may be used by Declarant in connection with the
development of the Real Property and the sale, lease or other disposition of Lots; (b) entry monuments
and similar community identification signs, if any; (c) one sign which may be displayed on each Lot
advertising the Lot for sale or lease; provided that such for sale or lease signs shall not be larger than
18" by 30" in size, shall not be attached to the ground by means other than a conventional vertical stake
which shall not exceed 4" by 4" in diameter and shall not exceed five (5) feet in height above ground
level; (d) one sign which may be displayed on each Lot providing notification that the house on the Lot
is serviced by a security system; provided that the sign shall be freestanding not more than three (3)
feet from the exterior of the house on the Lot, the top of the sign shall not be higher than five (5) feet
above the ground and shall not be larger than 1 2" by 1 2" in size; and (e) one decorative flag which may
be displayed on each Lot; provided that the use and display of such flag shall be subject to the rules
and regulations of the Association. All signs shall conform to the City Sign Ordinances.
7.19 Trees; Street Trees.
(a) Trees. Unless located in the Common Maintenance Area, all trees, hedges and
other plant materials shall be trimmed by the Owner of the Lot upon which they are located so
they do not create a nuisance, which determination shall be within the sole judgment of the
Board. Any loss of view caused by ordinary tree growth shall not be considered a nuisance. Before
planting any trees on a Lot, other than within the Common Maintenance Area, the proposed
location of the trees shall be approved in writing by the ARC. No trees planted by Declarant shall
be removed without the prior written approval of the ARC.
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(b) Street Trees. Declarant has planted or will plant "Street Trees" on each Lot within
the Properties as required by the City. Any Street Trees planted by Declarant on the front yard
and, with respect to corner Lots only, side yard of a Lot shall not be removed or replaced with
a tree of a different species without the prior approval of the City and the ARC. The ARC shall
have the right, but not the obligation, to replace any tree on a Lot which has been removed by
the Owner without the prior written approval of the ARC and to enter upon a Lot for such purpose.
Each Owner is responsible to maintain and irrigate the Street Trees located on his Lot.
7.20 Slope Control, Use and Maintenance. Each Lot Owner will keep, maintain, water, plant
and replant all slope banks located on the Owner's Lot (other than slopes within the Common Maintenance
Area) to prevent erosion, control brush in accordance with the requirements of the City and to create
an attractive appearance. No structure, planting or other material shall be placed or permitted to remain
or other activities undertaken on any slope banks which may damage or interfere with established slope
ratios, create erosion or sliding problems, or which may change the direction of flow of drainage channels
or obstruct or retard the flow of water through drainage channels.
7.21 Sight Distance Corridors. "Sight Distance Corridor" requirements exist on portions of
Lots 1, 11, 20, 44, 45, 57, 60, 71, 91, 92, and 134 of the Unit 1 Map and Lots 4, 16 and 21 of Tract
98-19 (the boundaries of which are shown thereon). No structure, fence, wall, sign or other object over
thirty (30) inches in height above the adjacent street elevation may be placed or permitted to remain
within any portion of the Sight Distance Corridor. The Owner of the Lot on which a Sight Distance Corridor
exists shall be responsible for maintaining the height limitation set forth in this Section, unless such area
is located within the Common Maintenance Area. As required by the City, within the Sight Distance
Corridor, Street Trees must have no branches or foliage lower than 8'.0" above the sidewalk or finished
grade. At the time of planting, shrubs and ground cover must be of a species and variety that at maturity,
without pruning, the height will not exceed 30".
7.22 Common Walls and Fences. There is created, established and granted an easement
appurtenant to all Lots in the Properties for the placement of all common fences and walls, where the
fences or walls were originally installed by Declarant, regardless of whether the fences and walls are
located precisely upon the boundary separating two (2) Lots. Those Owners who have a common fence
or wall which adjoin their Lots and effectively creates the boundary line between the Lots shall equally
have the right to use the fence or wall, and each shall have the exclusive right to the use and the
obligations of maintenance of the interior surface of the fence or wall facing the Owner's residence.
Neither Owner shall drive nails, screws, bolts or other objects more than half way through any common
fence or wall, or impair in any way the structural integrity of the common wall or fence. In the event
that any portion of the common fence or wall, except the interior surface of one (1) side, is damaged
from any cause other than the act or negligence of either party, it shall be replaced or rebuilt at their
joint expense. In the event any portion of the common fence or wall is damaged by the Owner of only
one of the Lots, that Owner shall, at its expense, be responsible for the repair of the damage to the
fence or wall. In the event of a dispute arising in connection with a common boundary fence or wall
or the provisions of this Section, the matter shall be submitted to and decided by binding arbitration.
Each party to the dispute shall choose one arbitrator and those arbitrators shall choose one additional
arbitrator. The decision shall be rendered by a majority of all arbitrators in accordance with the American
Arbitration Association Commercial Rules of Arbitration.
7.23 Outdoor Lighting. Outdoor lighting on a Lot shall be shaded and adjusted so the light
falls only on the Lot on which the lighting is located and does not fall or reflect on other Lots or Common
Area; provided, however, the ARC may grant variances from this restriction for lighting installed and
maintained for security purposes.
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7.24 Easement Reservations. The rights and duties of the Owners of Lots with respect to
sanitary sewer, water, electricity, gas, television cable (or CATV service) and telephone lines, and other
facilities, shall be governed by the following:
(a) Each Owner shall maintain those facilities and connections located upon his Lot
which are not maintained by the respective utility company or public agency.
(b) Wherever sanitary sewer, water or gas connections, television cables, electricity
or telephone lines are installed within the Properties and it becomes necessary to gain access
to the connections, cables and/or lines through a Lot owned by someone other than the Owner
of the Lot served by the connections, cables and/or lines, the Owner of the Lot served by the
connections, cables and/or lines shall have the right, and is hereby granted an easement to the
full extent necessary, to enter upon such other Lot or to have the utility companies enter upon
such other Lot to repair, replace and generally maintain the connections, cables and/or lines.
(c) Whenever sanitary sewer, water or gas connections, television cables, electricity
or telephone lines are installed within the Properties and the connections, cables and/or lines
serve more than one (1) Lot, the Owner of each Lot served by the connections, cables and/or
lines shall be entitled to the full use and enjoyment of the portions of the facilities which service
his Lot.
(d) In the event of a dispute between Owners with respect to the repair or rebuilding
of the connections, cables and/or lines, or the sharing of the cost of maintenance, the matter
shall be resolved by binding arbitration. Each party to the dispute shall choose one arbitrator
and those arbitrators shall choose one additional arbitrator. The decision shall be rendered by
a majority of all arbitrators in accordance with the American Arbitration Association Commercial
Rules of Arbitration.
(e) No Owner shall construct any improvements on any utility easement area of record
which will unreasonably interfere with the maintenance and repair of the facilities located in
the easement, without the prior written consent of the appropriate utility company or easement
owner.
7.25 Open Space Easement. Open space easements over Common Area lot 137 of the Unit
1 Map and Common Area lot 22 of Tract 98-19 have been dedicated to the City on their respective
maps. Development of the open space areas is limited to improvements set forth on the grading, landscape
and improvement plans and biological revegetation program approved by the City. Any further development
of the open space areas is prohibited except upon written order of the City Fire Department for fire
prevention purposes or upon written approval of the City Planning Director in response to a request by
the owner of such open space lot. Any request by the owner of the open space lot for further development
of the open space area which requires the removal of trees or plants shall include a report from a qualified
arborist or botanist indicating the need to remove specified trees or plants because of disease or impending
danger to adjacent habitable Lots or existing improvements to the Common Area. Any request by the
owner of such lot for further development of the open space area which would disturb native vegetation
thereon shall include a report from a qualified biologist indicating the anticipated result of the requested
improvement on the native vegetation.
7.26 Restrictions on Certain Common Maintenance Areas: City and Coastal Commission
Restrictions.
(a) City Restrictions. In addition to other Common Maintenance Areas to be granted
to the Association on a Phase by Phase basis, Declarant intends to grant Common Maintenance
Area easements to the Association over portions of Lots 1 through 6, inclusive, 8, 15 through
18, inclusive, 21 through 32, inclusive, 45 through 55, inclusive, 86 through 118, inclusive.
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and 133 of the Unit 1 Map. As required by the City, development of the Common Maintenance
Areas within these Lots are limited to improvements set forth on the Site Development Plans
and Landscape Plans for the Properties. The purposes of the Common Maintenance Area
easements within these Lots are for landscaping and for maintenance of irrigation and drainage
facilities, for erosion prevention and remediation, and for the removal of debris and trash.
(b) Coastal Commission Restrictions. Portions of Lots 92 through 104, inclusive,
of the Unit 1 Map are also subject to the Amendment to Deed Restriction required by the California
Coastal Commission recorded in the Office of the County Recorder of San Diego County,
California, on October 14, 1999 as Document No. 1999-0693448. The Amendment to Deed
Restriction restricts the use of portions of Lots 92 through 104, inclusive, of the Unit 1 Map
which areas are planned to be Common Maintenance Areas to be maintained by the Association
pursuant to Section 9.1.
7.27 Park. Common Area lot 36 of the Unit 1 Map shall be developed and maintained as a
park.
7.28 Post-Tension Slabs. Each Owner acknowledges that the concrete slab for some or all
of the Lots constructed on the Properties may have been reinforced with a grid of steel cable which
was installed in the concrete and then tightened to create a very high tension. This type of slab is
commonly known as a "post-tension slab". Each Owner further acknowledges that cutting into a
post-tension slab for any reason (e.g., to install a floor safe/to remodel plumbing, etc.) is very hazardous
and may result in serious damage to the dwelling unit and/or personal injury. By accepting a grant deed
to a Lot, each Owner specifically covenants and agrees that:
(a) An Owner shall not cut into or otherwise tamper with a post-tension slab;
(b) An Owner shall not knowingly permit or allow any other person to cut into or
tamper with a post-tension slab, other than a licensed contractor who has been informed that
the slab is post-tensioned and who has identified the location of the cables running within the
slab;
(c) An Owner shall disclose the existence of the post-tension slab (if any) to any
tenant, subsequent purchaser or lessee of the Lot; and
(d) An Owner shall indemnify and hold Declarant, its respective officers, employees,
contractors and agents, free and harmless from and against any and all claims, damages, losses
or other liability (including attorneys' fees) arising from any breach of this Section.
7.29 Lots Affected By Building Setback and Fire Protection Requirements.
(a) Brush Management Lots. Portions of the Brush Management Lots (the boundaries
of which are shown on Exhibit "C" attached to this Declaration and Declarations of Annexation
for subsequent Phases) are subject to the Fire Protection Requirements. Each Owner of a Brush
Management Lot shall maintain his Lot in accordance with the Fire Protection Requirements. Brush
clearance as required by the Fire Protection Requirements may change the character and appearance
of the Properties and Declarant shall not be liable to any Owner for work performed in compliance
with the Fire Protection Requirements. There is no guarantee or assurance that compliance with
the Fire Protection Requirements will prevent damage or destruction by fire.
(b) Construction Restriction Areas. To reduce fire hazards, the Construction Restriction
Areas of the Brush Management Lots are subject to "building setback" and the Fire Protection
Requirements. The Construction Restriction Areas shall not be improved with gazebos, patio
overhangs, play equipment, room additions, tool sheds, fences or other combustible structures.
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The Construction Restriction Area shall be landscaped and irrigated in conformance with landscape
guidelines adopted by the Board, if any, and the Fire Protection Requirements. The boundaries
of the Construction Restriction Areas on the Brush Management Lots are shown on Exhibit "C"
attached to this Declaration and Declarations of Annexation for subsequent Phases). The
construction or installation of non-combustible accessory structures maybe approved by the City
Fire Department.
(c) Lots 149 through 157 of the Unit 2 Map and Lots 7 through 12 of Tract 98-19.
Pursuant to City requirements, Declarant plans to construct the residences located on Lots 149
through 151, inclusive, of the Unit 2 Map and Lots 7 through 12, inclusive, of Tract 98-19 in
compliance with §504 of the "Urban Wild/and Interface Code published in January 1997 by the
International Fire Code Institute, Whittier California." Any modifications or reconstruction of the
residences on such Lots shall be in compliance with § 504 of the URBAN WILDLAND INTERFACE CODE.
Also, as required by the Fire Protection Requirements, residential sprinklers have been installed
in all of the homes within Lots 149 through 151, inclusive, of the Unit 2 Map and Lots 7 through
12, inclusive, of Tract 98-19; without the consent of the City, they shall not be removed or altered;
provided however, they may be repaired or replaced.
7.30 Lot 105 of Unit 1 Map. The Remainder Parcel is appurtenant to Lot 105 of the Unit 1
Map. The Remainder Parcel may not be sold, encumbered or leased separately from Lot 105.
7.31 Limitation on Basketball Hoops. An Owner may place a portable basketball hoop in his
Lot. A permanent hoop is permitted in the rear yard only provided, that there is a minium of fifteen feet
(15'} setback from the neighbors' property Lot line. The hours of usage and other reasonable conditions
may be set forth in the rules and regulations of the Association.
7.32 Limitation on Play Structures. An Owner may place a play structure in his Lot; provided,
however, any structure which is above six (6) foot in height shall be placed only with the prior written
consent of the ARC as to the location. Such consent may be conditioned on set back requirements from
adjoining Owner's Lots and other reasonable conditions set forth in the architectural guidelines of the
ARC.
7.33 Trail Easement.
(a) An offer of dedication of a trail easement over portions of Common Area lot 137
of the Unit 1 Map has been rejected by the City; however, the offer of dedication remains open.
The trail easement shall remain private and not open to the public until acceptance of the offer
of dedication by the City.
(b) An offer of dedication of a trail easement over portions of Common Area lot 22
of Tract 98-19 has been rejected by the City; however, the offer of dedication remains open.
The City has required the trail easement on Common Are lot 22 to be open to the public. However,
the Association is required to maintain the trail easement on lot 22 until such easement dedication
is accepted by the City. The City may not ever accept the dedication.
7.34 Window Coverings. No newspapers or metallic foil shall be placed on any window of a
residence on a Lot, and no sheets shall be placed on any window of a residence of a Lot for a period
in excess of six (6) months.
7.35 Use of Reclaimed Water for Irrigation. As required by the City, Declarant has installed
irrigation pipes for reclaimed water use. If and when reclaimed water is available, the Association may
be required by the City to use reclaimed water for irrigating any landscaping within the Common Areas
and Common Maintenance Areas. Notice is provided that reclaimed water may overspray on to the Lots
adjacent to the landscaped Common Area and Common Maintenance Areas and such water should not
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be consumed by people or Animals. Declarant and Association shall not be responsible for any overspray
of reclaimed water.
7.36 National Pollutant Discharge Elimination System Requirements. As required by the City,
the Association and the Owners and occupants of Lots within the Properties are required to comply with
the following requirements:
(a) The Association and the Owners and occupants of the Lots shall coordinate efforts
to establish or work with established disposal programs to remove and properly dispose of toxic
and hazardous waste products from the Properties.
(b) Toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze,
solvents, paints, paint thinners, wood preservatives and other such fluids shall not be discharged
into any street, public or private, or into storm drain or storm water conveyance systems. Use
and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers and other such chemical
treatments shall meet Federal, State, County and City requirements as prescribed in their respective
containers.
(c) Best Management Practices as set forth in the "California Storm Water Best
Management Practices Handbook" shall be used to eliminate or reduce surface pollutants when
planning any changes to the landscaping and surface improvements within the Properties.
ARTICLE VIII
INSURANCE AND CONDEMNATION
8.1 Insurance.
(a) The Association shall keep (i) any improvements on the Common Area and Common
Maintenance Area insured against loss by fire and the risks covered by a Standard All Risk of
Loss Perils insurance policy under an extended coverage casualty policy in the amount of the
maximum insurable replacement value thereof, and (ii) all personalty owned by the Association
insured with coverage in the maximum insurable fair market value of personalty as determined
annually by an insurance carrier selected by the Association. Insurance proceeds for improvements
in the Common Area and Common Maintenance Area and personalty owned by the Association
shall be payable to the Association. In the event of any loss, damage or destruction, the Association
shall cause the same to be replaced, repaired or rebuilt if it occurred in the Common Area or
Common Maintenance Area. In the event the cost of such replacement, repair or rebuilding of
Common Area or Common Maintenance Area (A) exceeds the insurance proceeds available therefor,
or (B) no insurance proceeds are available therefor, the deficiency or full cost thereof shall be
assessed to the Owners as a special assessment pursuant to Section 4.3 above. In the event
of any loss, damage or destruction to improvements on a Lot (other than that portion thereof
within the Common Maintenance Area), the Owner of the Lot shall cause the same to be replaced,
repaired or rebuilt at no cost to the Association.
(b) The Association shall procure and keep in force a general liability insurance policy
in the name of the Association and the Owners against any liability for personal injury or property
damage resulting from any occurrence in or about the Common Area or Common Maintenance
Area in an amount not less than $ 1,000,000 in indemnity against the claims of one or more persons
in one accident or event, and not less than $100,000 for damage to property.
(c) The Association shall maintain a fidelity bond in an amount equal to the amount
of funds held by the Association during the term of the bond but not less than one-fourth (14)
of the annual assessments, plus reserves, naming the Association as obligee and insuring against
loss by reason of the acts of the Board, officers and employees of the Association, and any
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management agent and its employees, whether or not such persons are compensated for their
services.
(d) Copies of all insurance policies (or certificates) showing the premiums to have
been paid shall be retained by the Association and open for inspection by Owners at any reasonable
time(s). All insurance policies shall (i) provide that they shall not be cancellable by the insurer
without first giving at least ten (10) days' prior notice in writing to the Association; and (ii) contain
a waiver of subrogation by the insurer(s) against the Association, Board and Owners.
(e) Anything contained herein to the contrary notwithstanding, the Association shall
maintain such insurance coverage as may be required by the Federal National Mortgage Association
("FNMA") or the Federal Home Loan Mortgage Corporation ("FHLMC") so long as FNMAorFHLMC,
respectively, holds a mortgage on or owns any Lot.
(f) Section 1365.7 of the California CIVIL CODE provides for a partial limitation on
the liability of volunteer officers and directors of the Association, provided that certain require-
ments, as set forth in CIVIL CODE §1365.7, are satisfied. The requirements include that general
liability insurance and officers' and directors' liability insurance be carried by the Association in
specified amounts. The Association shall maintain general liability insurance and officers' and
directors' liability insurance in amounts which satisfy the requirements of CIVIL CODE §1365.7
to limit the liability of volunteer officers and directors of the Association.
(g) In the event any insurance policy deductible amount relating to an Owner's property
loss is charged to the Association, the Owner shall reimburse the Association upon written demand
for the amount charged to the Association.
(h) Association insurance policy premiums paid by Declarant shall be prorated between
Declarant and the Association as of the date of the first closing of a sale of a Lot in Phase 1 to
a Purchaser, and the Association shall refund to Declarant upon demand the amount of the proration
attributable to the period following the proration date.
8.2 Condemnation. In the event the Common Area or any portion thereof shall be taken for
public purposes by condemnation as a result of any action or proceeding in eminent domain, or shall be
transferred in lieu of condemnation to any authority entitled to exercise the power of eminent domain,
then the award or consideration for such taking or transfer shall be paid to and belong to the Association.
ARTICLE IX
COMMON AREA AND COMMON MAINTENANCE AREA;
MAINTENANCE RESPONSIBILITIES
9.1 Association Maintenance. The Association shall, in perpetuity, maintain and provide for
the maintenance in good repair, appearance and working order of all the Common Areas and Common
Maintenance Areas and all improvements thereon. The following are planned Common Areas and Common
Maintenance Areas:
(a) Common Areas. The Common Areas are planned to include, but are not limited to:
(i) Any entryway monumentation, landscaping and irrigation facilities located
within the Common Areas.
(ii) All concrete terrace drains located within the Common Areas.
(iii) Private sewer, storm drain and other drainage facilities located within the
Common Areas.
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(iv) The park, including the tot lot, located on Common Area lot 36 of the
Unit 1 Map.
(v) Walls and fencing located solely within the Common Area.
(vi) A desiltation basin located on Common Area lot 137 of the Unit 1 Map.
The desiltation basin shall be maintained by the Association subject to the terms of the
Drainage Basin Maintenance Agreement dated July 23, 1999.
(vii) Open space areas on Common Area lot 137 of the Unit 1 Map and Common
Area lot 22 of Tract 98-19 shall be maintained in accordance with the restrictions set
forth in Section 7.25 of this Declaration. Declarant reserves the right, but is not obligated,
to maintain lot 137 of the Unit 1 Map and lot 22 of Tract 98-19 should the Association
fail to properly maintain such open space areas in accordance with the restrictions set
forth in Section 7.25 of this Declaration.
(viii) The walking trails located within Common Area lot 137 of the Unit 1 Map
and Common Are lot 22 of Tract 98-19. The trails shall be maintained by the Association
until the City accepts the offer of dedication of the trail easements. The City may not
ever accept the offer of dedications.
(ix) Subject to the United States Post Master's consent, if required, any mail
boxes located within the Common Area.
(x) Any portions of the Common Area subject to the Fire Protection
Requirements shall be maintained in accordance with the restrictions set forth in Section
7.29 of this Declaration.
(xi) The recreational vehicle facility located on Common Area lot 136 of the
Unit 1 Map.
(b) Common Maintenance Areas:
(i) On-Site Common Maintenance Areas: Common Maintenance Areas which
are located within the Properties ("On-site Common Maintenance Areas") include, but
are not limited to:
(A) Subject to Section 7.26(a) and Section 7.29, landscaping, mainte-
nance of the irrigation and drainage facilities, erosion prevention and remediation,
brush management and the removal of debris and trash on portions of Lots 1
through 6, inclusive, 8, 15 through 18, inclusive, 21 through 32, inclusive, 45
through 55, inclusive, 86 throughl 1 8, inclusive, and 1 33 of the Unit 1 Map. The
boundaries of the Common Maintenance Areas are shown in Exhibit "B" to this
Declaration or Declarations of Annexation forthe Phases in which the Lots (which
the Common Maintenance Areas are a part) become subject to this Declaration.
(B) Subject to Section 7.26(b), landscaping, maintenance of the
irrigation and drainage facilities, erosion prevention and remediation, and the
removal of debris and trash on portions of Lots 92 through 104, inclusive, of the
Unit 1 Map. The boundaries of the Common Maintenance Areas are shown in
Exhibit "B" to this Declaration or Declarations of Annexation for the Phases in
which the Lots (which the Common Maintenance Areas are a part) become subject
to this Declaration.
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(C) Any entryway monumentation, fencing, walls, landscaping and
irrigation facilities within the Common Maintenance Areas shown in Exhibit "B"
to this Declaration or Declarations of Annexation for the Phases in which the Lots
(which the Common Maintenance Areas are a part) become subject to the
Declaration.
(D) All brow ditches and other drainage facilities located within the
Common Maintenance Areas shown in Exhibit "B" to this Declaration or
Declarations of Annexation for the Phases in which the Lots (which the Common
Maintenance Areas are a part) become subject to the Declaration.
(E) Portions of Lots shown and described on Exhibit "B" attached
to this Declaration and/or Declarations of Annexation for the Phases in which the
Lots (which the Common Maintenance Areas are a part) become subject to the
Declaration.
(ii) Off-Site Common Maintenance Areas: Common Maintenance Areas which
are not located within the Properties ("Off-Site Common Maintenance Areas") include,
but are not limited to:
(A) The landscaping and irrigation facilities within portions of the
parkways along Aviara Parkway, Mariposa Road, Cobble Stone Road, Golden Bush
Street and Torreyanna Circle as shown in Exhibit "B" to this Declaration or
Declarations of Annexation for the Phases in which the obligations for maintenance
of such off-site areas are to be transferred to the Association.
(B) The landscaping, irrigation facilities and brow ditches within the
easement areas adjacent to the northern boundary of the Properties as shown
in Exhibit "B" to this Declaration or Declarations of Annexation for the Phases
in which the obligations for maintenance of such off-site easement areas are to
be transferred to the Association. The Association's obligation to maintain this
area is subject to the terms of an agreement to be recorded in the Office of the
County Recorder of San Diego County, California.
(C) The landscaping and irrigation facilities within the easement area
adjacent to the eastern boundary of the Properties as shown in Exhibit "B" to
this Declaration or Declarations of Annexation for the Phases in which the
obligations for maintenance of such off-site easement areas are to be transferred
to the Association. The Association's obligation to maintain this area is subject
to the terms of the Easement Agreement recorded in the Office of the County
Recorder of San Diego County, California, on July 29, 1999 as Document No.
1999-0523023. The terms of the Easement Agreement include, but are not limited
to, the Association's obligation to maintain certain amount of comprehensive
general liability insurance.
(D) The private street located on and landscaping and irrigation facilities
within lot 135 of the Unit 1 Map: (1) should the owner of such lot fail to maintain
the street or the landscaping and irrigation facilities described in Exhibit "B" to
this Declaration or Declarations of Annexation for the Phases in which the
obligations for maintenance of such off-site areas are to be transferred to the
Association; and (2) should the Association wish to maintain it. The Association's
right to maintain these areas are subject to rights provided by the owner of lot
135 of the Unit 1 Map.
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(E) The exterior portion of the perimeter wall located on portions of
lot 134 of the Unit 1 Map: (1) should the owner of lot 134 fail to maintain the
perimeter walls located within an area described in Exhibit "B" to this Declaration
or Declarations of Annexation for the Phases in which the obligations for
maintenance of such off-site areas are to be transferred to the Association; and
(2) should the Association wish to maintain it. The Association's right to maintain
this area is subject to rights provided by the owner of lot 134 of the Unit 1 Map.
(F) Subject to the United States Post Master's consent, if required,
any mail boxes located on Lots.
(G) Such other property, the obligation for maintenance of which is
the responsibility of the Association as set forth in an easement to or agreement
with the Association as shown in a Declaration of Annexation for the Phase in
which the obligation for maintenance of such off-site area is to be transferred
to the Association.
An easement or right over an area which otherwise would be Common Maintenance Area
may be conveyed to a public assessment district, in which event the area conveyed shall be
maintained by the public assessment district.
9.2 Association Maintenance Standards; Commence of Maintenance. The Association shall
maintain and provide for the maintenance of all Common Area and Common Maintenance Area and all
improvements thereon in good repair and appearance as set forth in the Declaration and in accordance
with the requirements of the City and any landscape maintenance manual adopted by the Board for the
Properties. The Association shall maintain all drainage facilities located within the Common Area and
Common Maintenance Area in good working condition. The Association shall have the right to enter onto
any Lot (but not within the dwelling on the Lot) as may be necessary for the construction, maintenance
or emergency repair of the Common Area or Common Maintenance Area or, if necessary, for the benefit
of the Owners in common, including the maintenance and repair of surface and subsurface drainage pipes
and facilities. Any damage caused to a Lot by entry of the Association shall be repaired by the Association
at its expense. The Association may retain the services of consultants to periodically review and inspect
the Common Area and Common Maintenance Area to ensure adequacy of the Association's maintenance
program.
The Association's obligation to maintain the Common Area shall commence upon
conveyance of the Common Area to the Association. The Association's obligation to maintain the Common
Maintenance Area shall commence in Phases upon conveyance to the Association of a Common
Maintenance Area Easement describing the Common Maintenance Area to be maintained or upon convey-
ance of a Lot upon which the Common Maintenance Area is located to a Purchaser, whichever shall first
occur. The Association's obligation to maintain the Common Maintenance Area which is not located within
the Properties (the maintenance of which is the responsibility of the Association pursuant to the Declaration,
Declaration of Annexation or by easement or agreement) shall commence in Phases (as shown in this
Declaration or Declaration of Annexation) upon the first close of escrow of a Lot to a Purchaser within
a particular Phase, unless an easement or agreement requires otherwise. The Association's consent shall
not be required to transfer to the Association any off-site Common Maintenance Areas by Declarant.
9.3 Drainage Facilities Maintenance Program. The Association shall maintain in good repair
and condition any drainage facilities located in the Common Area and Common Maintenance Area, including,
but not limited to, any vegetated swales, riprap swales, concrete terrace drains, brow ditches, inlets,
cleanouts, subsurface drainage pipes, and outlets. The drainage facilities shall be maintained by the
Association until such time as these facilities may be accepted for maintenance by the City. The
maintenance shall include removal of trash and debris, and ensuring that all drainage facilities remain
in good working order. The Association shall have the right to enter onto any Lot as may be necessary
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for the construction, maintenance or emergency repair of drainage facilities on the Common Area or
Common Maintenance Area. Any damage caused to a Lot by entry of the Association shall be repaired
by the Association at the Association's expense.
9.4 Owner Maintenance. Each Owner shall keep and maintain in good repair and appearance
all portions of his Lot and the landscaping within the public right of way which is between the sidewalk
adjacent to the Owner's front yard and the side yard, where applicable, and the street right of way and
improvements thereon (other than that portion the maintenance of which is the responsibility of the
Association or a public maintenance assessment district), including, but not limited to, any fence or wall,
concrete terrace drain, brow ditch or drainage swale which is located on the Owner's Lot. The Owner
of each Lot shall water, weed, maintain and care for the landscaping located on his Lot (other than that
portion the maintenance of which is the responsibility of the Association or a public maintenance
assessment district) and the landscaping within the public right of way which is between the sidewalk
adjacent to the Owner's front yard, side yard, where applicable, and the street right of way so that the
same presents a neat and attractive appearance, free from weeds, trash and debris. No Owner shall interfere
with or damage the Common Maintenance Area nor interfere with or impede Declarant, the Association
or a public maintenance assessment district in connection with the maintenance of the Common Area
or Common Maintenance Area.
9.5 Maintenance of Walls and Fences.
(a) The Association shall maintain the exterior portion of any walls and fences located
adjacent to any Common Maintenance Area or Common Area, as shown on Exhibit "B" to this
Declaration or Declarations of Annexations; provided, however, the Association shall maintain
both sides of any tubular fences originally installed by Declarant. The Owner of the Lot, on which
such wall or fence is located or adjoins his Lot, shall maintain, repair and replace the structure
of such wall or fence and shall maintain the interior portion of such wall or fence facing his
residence, except for any tubular fences originally installed by Declarant.
(b) The Association shall maintain any fence or wall (including tubular fences) located
solely within the Common Area or Common Maintenance Area (including the structure and both
the interior and exterior surfaces).
(c) For any fence or wall, other than the walls or fences described in subsection (a)
and (b) of this Section, which separates the Lots, each Owner shall have the obligation to maintain
and repair the interior portion of the fence or wall facing the Owner's residence and the Owners
shall, subject to Section 7.22, share, on an equitable basis, the cost of replacing such fence or
wall. The Owner of each affected portion of the Properties upon which a party wall or fence is
located shall have a reciprocal non-exclusive easement to the Properties immediately adjacent
to the interior fence or wall for the limited purpose of maintaining the party wall or fence.
9.6 Association's Right to Repair Neglected Lots. In the event an Owner of a Lot should fail
to maintain his Lot and improvements on his Lot in a manner satisfactory to the Board, the Association,
after approval by two-thirds (%) vote of the Board, shall have the right through its agents and employees,
to enter onto the Lot and to repair, maintain and restore the Lot and exterior of the building and any other
improvements erected on the Lot. However, no entry into a dwelling may be made without the consent
of the Owner, and entry shall only be made after not less than three (3) days notice has been given to
the Owner. Entry by the Association shall be made with as little inconvenience to the Owner as possible
and any damage caused by the Association shall be repaired by the Association. The cost of such exterior
maintenance shall be added to and become a part of the assessment to which the Lot is subject, but
the cost shall not be a lien on the Lot. There is hereby created an easement in favor of the Association
to enter onto each Lot which is subject to assessment by the Association to provide maintenance as
provided in this Section, subject to the foregoing notice and consents requirements.
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9.7 Maintenance By City. If the Association fails to maintain the Common Area or Common
Maintenance Areas, including the Open Space Easement Areas as provided in this Article, the City shall
have the right, but not the duty to perform the necessary maintenance. If the City elects to perform such
maintenance, the City shall give written notice to the Association, with a copy thereof to the Owners,
setting forth with particularity the maintenance which the City finds to be required and requesting the
same be carried out by the Association within a period of thirty (30) days from the giving of such notice.
In the event that the Association fails to carry out such maintenance of the Common Area and or Common
Maintenance Areas within the period specified by the City's notice, the City shall be entitled to cause
such work to be completed and shall be entitled to reimbursement with respect thereto from the Owners
as provided in Section 4.15.
9.8 Use of Proceeds To Repair. In the event the Association receives, on its own behalf or
for the benefit of the Owners, any proceeds as a result of any construction defect or similar claims brought
by the Association, then the Association shall apply such proceeds first for the purpose of repairing such
defects or replacing reserve funds previously utilized by the Association to cause such repairs and then
to the costs of the action to recover such sums. Any excess proceeds shall be applied as determined
by the Board, subject to any requirements established by the laws of the State of California applicable
non-profit mutual benefit corporations and any other applicable laws.
ARTICLE X
ANNEXATION
10.1 By Association. Additional residential property. Common Area and Common Maintenance
Area may be annexed to the Properties and to the Declaration upon the vote or written assent of two-thirds
(%) of the voting power of Members of the Association, excluding the vote of Declarant. Upon approval
by Members of the Association, the Owner of the property wishing it to be annexed may file of record
a "Declaration of Annexation" which shall extend the provisions of this Declaration to the property being
annexed.
10.2 By Declarant. Land within the Annexable Property may be annexed to the Declaration
as Lots, Common Area and Common Maintenance Area and to the jurisdiction of the Association by the
owner of the property and additional Common Area and Common Maintenance Area may be transferred
to the Association without the consent of Members of the Association or the Board at any time within
ten (10) years following the original issuance by the California Department of Real Estate of the most
recently issued Final Subdivision Public Report fora Phase. The ten (10) year period shall be automatically
extended for each day of delay caused by or resulting from any building moratoria or other action imposed
by a governmental body or agency which delays or prevents the construction or sale of a home on any
Lot. Annexation shall be made by Declaration of Annexation executed by the owner of the land being
annexed. The Declaration of Annexation may be revoked or amended at any time before the first close
of sale of a Lot in the annexed property and may contain additional or different restrictions applicable
to the annexed property.
ARTICLE XI
RIGHTS OF LENDERS
11.1 Payments of Taxes or Premiums by First Mortgagees. First Mortgagees may, jointly or
severally, pay taxes or other charges which are in default and which may or have become a charge against
the Common Area, unless the taxes or charges are separately assessed against the Owners, in which
case, the rights of first Mortgagees shall be governed by the provisions of their Mortgages. First Mortgagees
may, jointly or severally, also pay overdue premiums on casualty insurance policies, or secure a new
casualty insurance coverage on the lapse of a policy for the Common Area; first Mortgagees making such
payments shall be owed immediate reimbursement from the Association. Entitlement to reimbursement
shall be reflected in an agreement in favor of any first Mortgagee who requests the same to be executed
by the Association.
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11.2 Priority of Lien of Mortgage. No breach of the covenants, conditions or restrictions in
the Declaration shall affect, impair, defeat or render invalid the lien or charge of any first Mortgage made
in good faith and for value encumbering any Lot, but all of the covenants, conditions and restrictions
shall be binding upon and effective against any Owner whose title to a Lot is derived through foreclosure
or trustee's sale, or otherwise.
11.3 Curing Defaults. A first Mortgagee who acquires title by judicial foreclosure, deed in lieu
of foreclosure or trustee's sale shall not be obligated to cure any breach of the provisions of this Declaration
which is non-curable or of a type which is not practical or feasible to cure. The determination of the Board
made in good faith as to whether a breach is non-curable or not feasible to cure shall be final and binding
on Mortgagees.
11.4 Approval of First Mortgagees. Except as provided by statute in case of condemnation
or substantial loss to the Lots or Common Area, unless the Mortgagees of first Mortgages encumbering
sixty-seven percent (67%) or more of the Lots which are subject to a Mortgage or Owners representing
sixty-seven percent (67%) of the voting power of the Association (excluding the vote of Declarant) have
given their prior written approval, the Association shall not:
(a) By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer
the Common Area. The granting of easements for public utilities or for other public purposes shall
not be deemed a transfer within the meaning of this subsection.
(b) Change the method of determining the obligations, assessments, dues or other
charges which may be levied against an Owner.
(c) By act or omission, change, waive or abandon any scheme of regulations, or
enforcement thereof, pertaining to the architectural design or exterior appearance of residences,
the exterior maintenance of residences, the maintenance of Common Area walks or common
fences and driveways, or the upkeep of lawns and plantings in the Properties.
(d) Fail to maintain fire and extended coverage insurance on the Common Area on
a current replacement cost basis in an amount not less than one hundred percent (100%) of the
insurable value, based on current replacement cost.
(e) Use hazard insurance proceeds for losses to any portion of the Common Area
for other than the repair, replacement or reconstruction of the Common Area.
11.5 Restoration of Common Area. Any restoration or repair of the Common Area after partial
condemnation or damage due to an insurable event, shall be performed substantially in accordance with
the Declaration and original plans and specifications unless other action is approved by holders of first
Mortgages on Lots which have at least fifty-one percent (51 %) of the votes of Lots subject to Mortgage
holders.
11.6 Professional Management. When professional management has been previously required
by a first Mortgage holder, a decision to establish self-management by the Association shall require the
consent of at least sixty-seven percent (67%) of the voting power of Members of the Association and
the approval of holders of first Mortgages on Lots, the Owners of which have at least fifty-one percent
(51%) of the votes of Lots encumbered by Mortgages.
11.7 Notice to Mortgagees. Upon written request to the Association identifying the name and
address of the holder and the Lot number or address, any first Mortgage holder will be entitled to timely
written notice of:
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(a) Any condemnation loss or any casualty loss which affects a material portion of
the Properties or any Lot on which there is a first Mortgage held by the Mortgage holder.
(b) Any delinquency in the payment of assessments or charges owed by an Owner
subject to a first Mortgage held by the Mortgage holder which remains uncured for a period of
sixty (60) days.
(c) Any lapse, cancellation or material modification of any insurance policy or fidelity
bond maintained by the Association.
(d) Any proposed action which would require the consent of a specified percentage
of Mortgage holders.
11.8 Documents to be Available. The Association shall make available to Owners and Mortgagees,
and holders, insurers or guarantors of any first Mortgage, current copies of the Declaration, the Bylaws,
other rules concerning the Properties and the books, records and financial statements of the Association.
"Available" means available for inspection, upon request, during normal business hours or under other
reasonable circumstances. The holders of first Mortgages encumbering fifty-one percent (51 %) or more
of the Lots subject to a Mortgage shall be entitled to have an audited statement for the immediately preced-
ing fiscal year prepared at their expense if one is not otherwise available. Any financial statement so
requested shall be furnished within a reasonable time following the request.
11.9 Conflicts. In the event of any conflict between any of the provisions of this Article and
any of the other provisions of the Declaration, the provisions of this Article shall control.
ARTICLE XII
GENERAL PROVISIONS
12.1 Enforcement. The Association, Declarant and any Owner shall have the right to enforce
by any proceedings at law or in equity, all covenants, conditions, restrictions and reservations imposed
by the provisions of the Declaration and rules and regulations adopted pursuant to this Declaration. Each
Owner shall have a right of action against the Association for any failure of the Association to comply
with the provisions of the Declaration or of the Bylaws or Articles. Failure by the Association, Declarant
or any Owner to enforce any covenant, condition, restriction or reservation in the Declaration shall not
be deemed a waiver of the right to do so thereafter. The City shall have the right, but not the obligation,
to enforce the provisions of the Declaration and for such purposes shall be deemed a party hereto. In
the event the City files a legal action to enforce the provisions of the Declaration and it is the prevailing
party in the litigation, it shall be entitled to recover costs of suit and attorneys' fees incurred in the litigation.
12.2 Severabilitv. Should any provision in the Declaration be void or become invalid or
unenforceable in law or equity by judgment or court order, the remaining provisions shall be and remain
in full force and effect.
12.3 Amendments.
(a) By Declarant. Prior to the date escrow closes for any sale of a Lot to an Owner,
this Declaration may be unilaterally amended by Declarant.
(b) By Members. Except as may otherwise be stated in the Declaration, during the
period of time prior to conversion of the Class B membership in the Association to Class A member-
ship, this Declaration may be amended at any time and from time to time by the vote or written
consent of sixty-seven percent (67%) of the voting power of each class of Members of the Associa-
tion, any which amendment shall become effective upon recording with the Office of the County
Recorder of San Diego County, California. After conversion of the Class B membership in the
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Association to Class A membership, the Declaration may be amended at any time and from time
to time by the vote or written consent of (i) sixty-seven percent (67%)of the total voting power
of the Association, and (ii) at least sixty-seven percent (67%) of the voting power of Members
of the Association other than Declarant.
(c) Amendments Material to Mortgagees. Anything herein stated to the contrary
notwithstanding, no material amendment may be made to this Declaration without the prior written
consent of Mortgagees of first Mortgages encumbering fifty-one percent (51 %) or more of the
Lots within the Properties which are subject to a Mortgage."Material amendment" shall mean,
for purposes of this Section, any amendments to provisions of this Declaration governing any
of the following subjects:
(i) The fundamental purpose for which the Properties were created (such
as a change from residential use to a different use).
(ii) Assessments, assessment liens or the priority of assessment liens.
(iii) Reserve for maintenance, repair and replacement of the Common Area
or Common Maintenance Area.
(iv) Responsibilities for maintenance and repairs,
(v) Insurance or fidelity bonds.
(vi) Restoration or repair of the Properties after a hazard damage or partial
condemnation.
(vii) Rights to use the Common Area or Common Maintenance Area.
(viii) Expansion or contraction of the Properties or the addition, annexation or
withdrawal of property to or from the Properties.
(ix) Voting rights.
(x) Convertibility of Lots into Common Area or of Common Area into Lots.
(xi) Redefinition of boundaries of any Lot or the Common Area.
(xii) The interests in the Common Areas or Common Maintenance Area.
(xiii) Leasing of Lots.
(xiv) Imposition of any restrictions on the right of an Owner to sell or transfer
his Lot.
(xv) Any action to terminate the legal status of the Association after substantial
destruction or condemnation.
(xvi) The requirement of retention of professional management of the Associa-
tion.
(xvii) Any provision which is expressly for the benefit of first Mortgagees or
insurers or guarantors of first Mortgages.
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An amendment to the Declaration shall not be considered material if it is for the purpose
of correcting technical errors or for clarification or for making a change which is of no practical
significance. A first Mortgagee who receives a written request delivered by certified or registered
mail, return receipt requested, to approve amendments who does not deliver or mail to the
requesting party a negative response within thirty (30) days, shall be deemed to have approved
such request.
(d) Amendments to Specific Clauses. Notwithstanding the above provisions, the
percentage of the voting power necessary to amend a specific clause or provision in the Declaration
shall not be less than the percentage of affirmative votes necessary for action to be taken under
that clause or provision.
(e) Approval of City. Any amendment to this Declaration shall require the consent
of the City Attorney of the City and the Planning Director of the City if such amendment would
reduce or eliminate the standards of maintenance and repair of Lots, Common Area or Common
Maintenance Area or reduce or eliminate any right of the City set forth in this Declaration.
(f) Reduction of Required Percentage. The percentage of membership votes or written
consents required to amend the Declaration may be reduced under certain circumstances by Court
Order obtained pursuant to California CIVIL CODE §1356.
(g) No Amendment Without Declarant's Written Consent. Any provision within this
Declaration which provides Declarant specific rights shall not be amended without the written
approval of Declarant during the period prior to (i) ten (10) years after this Declaration is recorded
or (ii) the annexation of all the Annexable Property and sale of all the Lots to Purchasers, whichever
shall first occur.
12.4 Extension of Declaration. Each and all of the covenants, conditions and restrictions shall
run with and bind the land for a term of sixty (60) years from the date the Declaration is recorded, after
which date they shall automatically be extended for successive periods of ten (10) years, unless the Owners
of two-thirds (%) of the Lots subject to the Declaration have executed and recorded at any time within
six (6) months prior to the end of the 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 written
instrument in which it is agreed that the restrictions shall terminate at the end of the sixty (60) year period
or at the end of any ten (10) year period.
12.5 Encroachment Easement. The following easements are hereby reserved by Declarant,
subject to all items of record, including, but not limited to, the general utility easements of record:
(a) It is intended that, unless Declarant decides to relocate the same, each fence or
wall installed by Declarant with the intention of separating Lots from one another, or separating
a Lot from Common Area, or separating a Lot from Common Maintenance Area shall establish
the usable boundaries between the affected Lots, the Lots and Common Area and the Lots and
Common Maintenance Area, respectively, regardless of whether the fence or wall lies exactly
on the boundary line. An easement is hereby reserved for each such fence or wall to be repaired
and replaced by the party(ies) obligated to maintain the same, in the location where such fence
or wall was so installed by Declarant. Declarant shall have the right, but not the obligation, to
relocate any such fence or wall to the applicable boundary line during the period of time that
Declarant has the right to annex Lots to this Declaration. The portions of land lying inside a fence
or wall may be used by the adjoining Owner for yard purposes, subject to any open space
easements or other items of record. The portions of land lying outside a fence or wall which adjoin
Common Area or Common Maintenance Area may be used by the Association for such purposes.
T:\AJH\STAN-PAC\Shoiepointe\ccrs.050900.wpd -32-
(b) In the event any improvement to a Lot encroaches upon the Common Area or
Common Maintenance Area or any Common Area or Common Maintenance Area improvement
encroaches upon any Lot as a result of the construction, reconstruction, repair, shifting, settlement
or movement of any portion thereof, an easement for the encroachment and for its maintenance
is hereby reserved for so long as the encroachment exists; provided, however, in no event shall
an easement for encroachment be created in favor of an Owner or the Association if the
encroachment occurred due to the willful misconduct of the Owner or the Association. In the
event a structure on a Lot is partially or totally destroyed and then rebuilt or repaired, the minor
encroachments over adjoining Common Area and Common Maintenance Area shall be permitted
and there shall be easements for maintenance of the encroachments so long as they shall exist.
"Improvement" as used in this subsection does not include a fence or wall (fences and walls are
the subject of subsection (a) of this Section).
(c) An easement is hereby reserved in favor of each Lot over adjoining Lots for the
purpose of accommodating encroachments due to design, construction, engineering errors, errors
in construction, settlement or shifting of the building, roof overhangs, architectural or other
appendants and drainage of water from roofs. There shall be easements for the maintenance of
encroachments so long as they shall exist; provided, however, that no easement is created in
favor of an Owner if the encroachment occurred due to the willful misconduct of the Owner.
In the event a structure on any Lot is partially or totally destroyed and then rebuilt or repaired,
the minor encroachments over adjoining Lots shall be permitted and there shall be easements
for maintenance of encroachments so long as they shall exist.
12.6 Special Responsibilities of Association. In the event improvements to be installed by
Declarant to the Common Area have not been completed prior to the issuance by the California Department
of Real Estate of a Final Subdivision Public Report for a Phase, and in the further event the Association
is the obligee under a bond to secure the obligation of Declarant to complete the improvements, then
if the improvements have not been completed and a Notice of Completion filed within sixty (60) days
after the completion date specified in the Planned Construction Statement appended to the bond, the
Board shall consider and vote upon the question of whether or not to bring action to enforce the obligations
under the bond. If the Association has given an extension in writing for the completion of any improvement,
then the Board shall consider and vote on the question if the improvements have not been completed
and a Notice of Completion filed within thirty (30) days after the expiration of the extension period. In
the event the Board determines not to take action to enforce the obligations secured by the bond, or
does not vote on the question as above provided, then, in either event, upon petition signed by Members
representing five percent (5%) or more of the voting power of the Association (excluding the voting power
of Declarant), the Board shall call a special meeting of the Members of the Association to consider the
question of overriding the decision of the Board or of requiring the Board to take action on the question
of enforcing the obligations secured by the bond. The meeting of Members shall be held not less than
thirty-five (35) days nor more than forty-five (45) days following receipt of the petition. At the meeting,
a vote of a majority of the voting power of Members of the Association, excluding the vote of Declarant,
to take action to enforce the obligations under the bond shall be deemed to be the decision of the
Association, and the Board shall thereafter implement the decision by initiating and pursuing appropriate
action in the name of the Association.
12.7 Attorneys' Fees. Except as stated herein, in the event of litigation arising out of or in
connection with the Declaration, the prevailing party shall be entitled to receive costs of suit and such
sum for attorneys' fees as the Court deems reasonable. Notwithstanding any other provision herein to
the contrary, in any dispute between the Association and/or any Owner and Declarant, each party shall
bear its own attorneys' fees. ^
12.8 Notice of Actions Against Declarant. The Association shall comply with the provisions
of § 1368.4 of the CIVIL CODE, or any successor statute or law, by providing written notice to each Member
whose name then appears on the records of the Association, not later than thirty (30) days prior to the
T:\AJH\STAN-PAC\Shocepoime\ccrs.050900.wpd -33-
filing of any civil action by the Association against Declarant or other developer of the Properties for either
alleged damage to the Common Area or other property within the Properties that the Association is obligated
to maintain or repair, or alleged damage to any other portion of the Properties that arises out of, or is
integrally related to, such damage to the Common Area or other property within the Properties that the
Association is obligated to maintain or repair. Such notice shall specify all of the following:
(a) That a meeting of the Members will take place to discuss problems that may lead
to the filing of a civil action;
(b) The options, including civil actions, that are available to address the problems;
(c) The time and place of such meeting; and
(d) A description of the nature of the claim, the basis for bringing the claim, the source
of funds to process the proceedings (i.e., reserves or special or regular assessments), an estimate
of the cost to the Association in prosecuting any claim, a description of the agreement with the
attorney representing the Association on such claim and a statement advising the members of
their duty to disclose to prospective purchasers and lenders the claims of defect which the
Association will assert. Such notice shall be given to Declarant and each Member and any other
person or entity with the party or prospective party to the civil action.
Notwithstanding the foregoing, if the Association has reason to believe, after a diligent and good faith
inquiry, that the applicable statute of limitations will expire before the Association files such a civil action,
the Association may give the notice, described above, within thirty (30) days after the filing of the action.
However, the Association shall undertake reasonably prudent steps to ascertain whether a tolling agreement
extending the time period for such expiration can be executed with Declarant and the other parties to
the civil action.
12.9 Construction Defect Disputes.
(a) Definitions.
(i) "Claimant" — Any party (including any Owner or the Association) who
intends to make a claim for Construction Defect against a Construction Party.
(ii) "Construction Defect Dispute" — 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 Properties or any improvements to the Properties.
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 Properties.
(iii) "Construction Party" — Declarant or any director, officer, partner, employer,
subcontractor or agent of Declarant.
(b) Dispute Notification and Resolution Procedure. Any Construction Defect Dispute
shall be subject to the following provisions:
(i) 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").
T:\AJH\STAN-PAC\Shorepomte\ccrs.05090O.wpd -34-
(ii) 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 Properties 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.
(iii) Civil Code § § 1368.4 and 1375. Nothing contained herein shall be deemed
a waiver or limitation of the provisions of California CIVIL CODE §1368.4. If the claim is
subject to the provisions of CIVIL CODE §1375 as it may be amended from time to time,
compliance with the procedures of CIVIL CODE §§ 1375 (b), (d) and (e) shall satisfy the
requirements of subsections (i) and (ii) above.
(iv) Mediation. If the parties cannot resolve the claim pursuant to the procedures
described in subsection (ii) above, (including, if applicable, CiviLCODE § 1375 procedures)
the matter shall be submitted to mediation pursuant to the mediation procedures adopted
by the American Arbitration Association or any successor thereto or to any other entity
offering mediation services that is acceptable to the parties. No person shall serve as a
mediator in any dispute in which the person has any financial or personal interest in the
result of the mediation, except by the written consent of all parties. Prior to accepting
any appointment, the prospective mediator shall disclose any circumstances likely to create
a presumption of bias or to prevent a prompt commencement of the mediation process.
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 Properties are located or such other place as is mutually acceptable to the parties.
The mediator has discretion to conduct the mediation in the manner in which the
mediator believes is most appropriate for reaching a settlement of the dispute. The mediator
is authorized to conduct joint and separate meetings with the parties and to make oral
and written recommendations for settlement. Whenever necessary, the mediator may
also obtain expert advice concerning technical aspects of the dispute, provided the parties
agree and assume the expenses of obtaining such advice. The mediator does not have
the authority to impose a settlement on the parties.
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
§ 11 52.5(e) or successor statute in order to exclude the use of any testimony or evidence
produced at the mediation in any subsequent dispute resolution forum, including, but not
limited to, court proceedings, reference proceedings or arbitration hearings. Pursuant to
California EVIDENCE CODE § 1152.5(a), the agreement shall specifically state that evidence
of anything said or of any admission made in the course of the mediation is not admissible
evidence, and disclosure of any such evidence shall not be compelled in any civil action
in which, pursuant to law, testimony can be compelled to be given. Unless the document
provides otherwise, no document prepared for the purpose of, or in the course of, or
T:\AJH\STAN-PAC\Shorepointe\ccrs.05090O.wpd -35-
pursuant to, the mediation, or copy thereof, is admissible in 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.
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.
The expenses of witnesses for either side shall be paid by the party producing
such witnesses. All other expenses of the mediation, including required traveling and other
expenses of the mediator, and the expenses of any witnesses, or the cost of any proofs
or expert advice produced at the direct request of the mediator, shall be borne equally
by the parties unless they agree otherwise. Each Owner covenants that each shall forbear
from commencing any litigation against the Construction Party without complying with
the procedures described in this Section.
(c) 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 § § 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:
The parties waive their right to a jury trial.
(ii) 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.
(iii) 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:
(A) The proceedings shall be heard in San Diego County;
(B) The referee must be a retired judge or a licensed attorney with
substantial experience in relevant matters;
(C) 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;
(D) The referee may require one or more pre-hearing conferences;
(E) The parties shall be entitled to conduct all discovery as otherwise
provided in the California CODE OF CIVIL PROCEDURE, and the referee shall oversee
T:\AJH\STAN-PAC\Shorepomte\ccrs.05090O.wpd -36-
discovery and may enforce all discovery orders in the same manner as any trial
court judge;
(F) 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;
(G) The referee's statement of decision shall contain findings of fact
and conclusions of law to the extent applicable; and
(H) The referee shall have the authority to rule on all post-hearing
motions in the same manner as a trial judge.
(iv) The statement of decision of the referee upon all of the issues considered
by the referee is binding upon the parties, and upon filing of the statement of decision
with the clerk of the court, or with the judge where there is no clerk, judgment may be
entered thereon. The decision of the referee will stand as the decision of the Court and
any decision of the referee may be excepted to and reviewed in like manner as if made
by the Court. This provision shall in no way be construed to limit any valid cause of action
which may be brought by any of the parties.
(v) No amendment may be made to this Section without the consent of
Declarant.
(d) Judicial Reference In Purchase Agreements. The limitation of this Section to certain
controversies, claims or disputes shall not be deemed to supersede any written agreement (e.g.,
purchase agreement) between Declarant and an Owner which may provide for the judicial reference
of additional controversies, claims or disputes.
12.10 Limitation of Restrictions on Declarant. Declarant is undertaking the work of construction
of residential dwellings and incidental improvements upon the Real Property. The completion of that work,
and the sale, rental and other disposal of dwellings is essential to the establishment and welfare of the
Real Property as a residential community. In order that the work may be completed and the Real Property
be established as a fully occupied residential community as rapidly as possible, nothing in this Declaration
shall be understood or construed to:
(a) Prevent Declarant, its contractors or subcontractors from doing on the Common
Area or any Lot whatever is reasonably necessary or advisable in connection with the completion
of the work, including access over the Properties;
(b) Prevent Declarant or its representatives from erecting, constructing and maintaining
on any part or parts of the Real Property, such structures as may be reasonable and necessary
for the conduct of its business of completing the work and establishing the Real Property as a
residential community and transferring the Real Property in parcels by sale, lease or otherwise;
(c) Prevent Declarant from conducting on any part of the Real Property its business
of completing the work, and of establishing a plan of ownership and of transferring the Real
Property by sale, lease or otherwise;
(d) Prevent Declarant from maintaining such signs, poles or flags on any of the Real
Property as may be necessary for the sale, lease or disposition thereof; provided, however, that
the maintenance of any sign, pole or flag shall not unreasonably interfere with the use by any
Owner of his Lot or the Common Area;
T:\AJH\STAN-PAC\Shorepointe\ccrs.050900.wpd -37-
(e) Prevent Declarant from making changes to, repairing or replacing the Common
Area as may be reasonably necessary to satisfy or comply with the requirements of the City or
other applicable public agencies;
(f) Prevent the right of Declarant to: (i) modify all unsold Lots in the Real Property,
including increasing or decreasing the size or number of Lots; (ii) complete construction of any
improvements in the Real Property; (iii) redesign or otherwise change the style, square footage,
color or appearance of any improvement in any portion of the Real Property owned or controlled
by Declarant; (iv) construct such additional improvements on any portion of the Real Property
owned or controlled by Declarant; and/or (v) otherwise control all aspects of designing and
constructing the improvements and selling or leasing Lots in the Real Property provided prior
approval of the appropriate governmental agencies, if applicable, is obtained by Declarant. Declarant
hereby reserves unto itself, and its successors and assigns, a non-exclusive easement for ingress
and egress on, over and across the Properties as necessary to construct improvements, and further
reserves the exclusive right to maintain sales office, model complex and reasonable signs on any
portion of the Properties owned or controlled by Declarant;, or
(g) Prevent Declarant from establishing additional licenses, easements and rights-of-way
for building, constructing or installing any utility or other similar facilities over any portion of the
Real Property owned by Declarant, in favor of Declarant, utility companies or other, as may, from
time to time be reasonably necessary for the development of the Real Property.
The rights of Declarant provided in subsections (a) through (g) of this Section, may be
exercised by Declarant as long as Declarant owns any portion of the Real Property. So long as Declarant,
its successors and assigns, owns one or more of the Lots described herein, Declarant, its successors
and assigns, shall be subject to the provisions of this Declaration. Declarant, in exercising its rights under
this Section, shall not unreasonably interfere with the use of the Common Area by any Owner.
12.11 No Interference With City Ordinances. No provision in this Declaration and no contract
of sale, lease or other written document, shall establish any restriction on Declarant or others which would
prevent any other person or entity from complying with all applicable provisions of the Governmental
Regulations referred to in Article V of this Declaration or any other City ordinances, rules, policies or
regulations.
12.12 Conflict Of Provisions. In the event of a conflict among the provisions of the Declaration,
the Articles and the Bylaws, the provisions of the Declaration shall control. In the event of a conflict
between the provisions of the Articles and Bylaws, the provisions of the Articles shall control.
12.13 Documents Provided To Prospective Purchasers. Each Owner, other than Declarant, shall
as soon as practicable before sale of a Lot, provide to the prospective purchaser the disclosures, information
and documents required by law, as the law may from time to time be changed. As of the date of this
Declaration, these disclosures, information and documents include, but are not limited to:
(a) A copy of the Articles, Bylaws and Declaration.
(b) A copy of the most recent financial statements of the Association.
(c) A true statement in writing from an authorized representative of the Association
as to the amount of the Association's current annual and special assessments and fees, as well
as any assessments levied upon the Lot which are unpaid as of 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 Lot.
T \AJH STAN-PAOShorepoirte ccrs 05C9CO wpd -38-
(d) A statement setting forth any change in the Association's current annual and special
assessments and fees which have been approved by the Board but have not become due and
payable as of the date this statement is provided.
12.14 Notice Regarding Lights, Noise. Traffic and Circulation. Notice is provided to all Owners
and residents within the Properties of the existence and possible impacts from, among other things, lights,
noise, traffic and circulation.
12.15 Availability of Caltrans and North County Transit. The City has required that the Association
obtain and distribute to the residents of the Properties, on an annual basis, information from Caltrans
and North County Transit regarding the availability of public transportation, ride-sharing, and transportation
pooling services in the area.
12.16 Notice Regarding Adjacent Agricultural Operations. Notice is provided to all Owners and
residents within the Properties of the dust, pesticides and odors associated with adjacent agricultural
operations.
IN WITNESS WHEREOF, the undersigned, being Declarant herein, has set its hand and seal as
of the date first hereinabove written.
STANDARD PACIFIC CORP., a Delaware corporation
By
, Authorized Representative
, Authorized Representative
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On
ss.
20£0, before me Anc ion,
a Notary Public in and for said State, personally appeared ^
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) j^/are subscribed to the within instrument and acknowledged to me that hX/sJa4/they executed
the same in h>£/hyf/their authorized capacity(ies), and that by hi^/h^r/their signature(s) on the instrument,
the person(s), or the ^frtjty upon behalf of which the person(s) acted, executed the instrument.
WITNESS
Signature
AUSOMJL
Notary rut*;. CaltafTto
Sen Diego County (<
T \AJH\ST AN.PAC\Shorepoime''Ccrs.050900 wpd -39-
EXHIBIT "A"
ANNEXABLE PROPERTY
Lots 1 through 21, inclusive, 28 through 74, inclusive, 81 through 104, inclusive, 109
through 128, inclusive, and 134 through 137, inclusive, of the Unit 1 Map;
Lots 138 through 151, inclusive, of CITY OF CARLSBAD TRACT NO. 97-14 UNIT NO.
2 ("Unit 2 Map") according to Map thereof No. 13942 filed in the Office of the County
Recorder of San Diego County, California, on March 2, 2000; and
The real property referred to as ("Tract 98-19"):
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO
BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, AS DESCRIBED IN CERTIFICATE
OF COMPLIANCE RECORDED MARCH 11, 1997 AS FILE NO. 1997-0106633 OF OFFICIAL
RECORDS, AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 4, SECTION 22, SAID CORNER BEING
MARKED BY A 2 INCH IRON PIPE WITH BRASS DISC STAMPED "L.S. 4525 AHR S21 S22
T12N R5W CC 1980" AS SHOWN ON RECORD OF SURVEY MAP NO. 12096, FILED IN THE
OFFICE OF THE COUNTY RECORDER MARCH 23, 1989; THENCE ALONG THE NORTH LINE
OF SAID SECTION 22, SOUTH 89°28'34" EAST, 1222.11 FEET (NORTH 89°28'21" WEST,
1222.18 FEET PER R OF S 12096), TO AN INTERSECTION WITH A LINE ESTABLISHED BY
A 1/2 INCH IRON PIN AND A 2 INCH IRON PIPE MARKED "L.S. 2821", SAID LINE BEING THE
WESTERLY LINE OF LOT 3 OF SAID SECTION 22 AS SHOWN AND ESTABLISHED ON SAID
RECORD OF SURVEY MAP NO. 12096; THENCE ALONG SAID WESTERLY LINE, SOUTH
01 °43'58" EAST (SOUTH 01 °43'45" EAST PER R OF S 12096), 997.78 FEET TO SAID
2 INCH IRON PIPE ESTABLISHING THE SOUTHWEST CORNER OF SAID LOT 3 PER RECORD
OF SURVEY MAP NO. 1 2096; THENCE ALONG THE SOUTHERLY LINE OF LOT 4 OF SAID
SECTION 22 AS SHOWN AND DESCRIBED ON SAID RECORD OF SURVEY MAP NO. 12096,
NORTH 87°09'02" WEST, 1 263.13 FEET (NORTH 87°08'42" WEST, 1263.48 FEET PER
R OF S 1 2096) TO A POINT ON THE WEST LINE OF SAID SECTION 22; THENCE ALONG
SAID WEST LINE, NORTH 00°33'56" EAST, 945.75 FEET (NORTH 00°35'09" EAST, 945.70
FEET PER R OF S 12096) TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE CITY OF CARLSBAD IN DEED
RECORDED NOVEMBER 2, 1999 AS FILE NO. 1999-0732164 OF OFFICIAL RECORDS.
T:\AJH STAN.PACVShorepointe'.ccrs.050900 wed
EXHIBIT "B"
COMMON AREA AND COMMON MAINTENANCE AREAS
Phase 1
Common Area:
• None
On-Site Common Maintenance Areas:
The landscaping, maintenance of the irrigation and drainage facilities, brush management,
erosion prevention and remediation and the removal of debris and trash on portions of Lots
22 through 27, inclusive, 105 through108, inclusive, and 133 of the Unit 1 Map as shown
on Exhibit "B-1".
Any entryway monumentation, fencing, walls, landscaping and irrigation facilities within portions
of Lot 105 shown in Exhibit "B-1".
Any brow ditches and other drainage facilities located within portions of Lots 22 through 27,
inclusive, 105 through108, inclusive, and 133 of the Unit 1 Map as shown on Exhibit "B-1".
Subject to Section 9.5, the exterior portion of any walls and fences located on Lots 22 through
27, inclusive, and 105 through 108, inclusive, and 133 of the Unit 1 Map as shown on Exhibit
"B-1". However any tubular steel fencing originally installed on any of these Lots shall be
maintained by the Association.
Off-Site Common Maintenance Areas:
The landscaping and irrigation facilities within portions of the parkways along Lots 105 through
108, inclusive, and 133 of the Unit 1 Map as shown in Exhibit "B-1".
Any mail boxes located adjacent to Lots 25, 26, 129 and 130 of the Unit 1 Map.
T 'AJH'STAN-PAC'.SnoreDOinte .CCfS 350900 «vpd
EXHIBIT "C"
BRUSH MANAGEMENT LOTS & CONSTRUCTION RESTRICTION AREAS
Portions of Lots 129 through 133, inclusive, of the Unit 1 Map as shown on Exhibit
"C-1".
T ;AjH\STAN-PAC\Shoreoointe\ccrs 0509OO wpd
Exhibit C-1
Shorepointe
j
Fire Protection Zones
A-1, A-2, A-3, Owner Maintai
Building Rights Restricted
O)01
Legend
Fire Protection Zones
HOA Maintained
Goldenbush Street
Buyer
Buyer
North
Scale: 1"=40'
Locations & dimensions are approximate.
Date
Date
Fire Protection Areas
TnctNo:
CT97-14
Lot No.:129
CQ
Hs5xw
SHOREPOINTE PHASE ONE
HOMEOWNERS ASSOCIATION
MAINTENANCE AREAS
N D
PHASE ONE HOMEOWNERS
PHASE ONE HOMEOWNERS
ASSOCIATION AREA OF
RESPONSIBILITY
FENCE - OPEN IRON RAIL FENCE: INTERIOR & EXTERIOR MAINTENANCE
WALL - MASONRY WALL: EXTERIOR MAINTENANCE ONLY
Exhibit C--1
Shorepointe
Fire Protection Zones
A-1, A-2, A-3, Owner Maintained
Building Rights Restricted
Legend
Goldenbush Street
Fire Protection Zones
HOA Maintained
Buyer
Buyer
North
Scale: 1"=40'
Locations & dimensions are approximate.
Date
Date
Fire Protection Areas
Tract No.:
CT97-14
129
H-taxw
SHOREPOINTE PHASE ONE
HOMEOWNERS ASSOCIATION
MAINTENANCE AREAS
N D
PHASE ONE HOMEOWNERS
PHASE ONE HOMEOWNERS
ASSOCIATION AREA OF
RESPONSIBILITY
FENCE - OPEN IRON RAIL FENCE: INTERIOR & EXTERIOR MAINTENANCE
WALL - MASONRY WALL: EXTERIOR MAINTENANCE ONLY
EXHIBIT "C"
BRUSH MANAGEMENT LOTS & CONSTRUCTION RESTRICTION AREAS
Portions of Lots 129 through 133, inclusive, of the Unit 1 Map as shown on Exhibit
"C-1".
T:\AJH\STAN-PAC\Shorepointe\ccrs.050900.wpd
Exhibit C-1
Shorepointe
Fire Protection Zones
A-1, A-2, A-3, Owner Maintained
Building Rights Restricted
Legend
Goldenbush Street
Fire Protection Zones
HOA Maintained
Buyer
Buyer
North
Scale: 1"=40'
Locations & dimensions are approximate.
Date
Date
Fire Protection Areas
Tract No.:
CT97-14
Lai No.:129
Exhibit C-1
Shorepointe
Fire Protection Zone
A-1, A-2 - Owner Maintained
Building Rights Restricted
Legend
Fire Protection Zones
HOA Maintained
Goldenbush Street
North
Scale: 1"=40'
Locations & dimensions are approximate.
Buyer Date
Buyer Date
Fire Protection Areas
Tract No.:
CT97-14
L«No.:
Exhibit C-1
Shorepointe
Fire Protection Zone
A-1 - Owner Maintained
Building Rights Restricted
Legend
Fire Protection Zones
HOA Maintained
Goldenbush Street
Buyer
Buyer
North
Scale: 1'= 40'
Locations & dimensions are approximate.
Date
Date
Fire Protection Areas
Tract No.:
CT97-1*
131
Exhibit C--1
Shorepointe
Fire Protection Zone
A-1, A2 - Owner Maintained
Building Rights Restricted
Goidenbush Street
Legend
Fire Protection Zones
HOA Maintained
Buyer
Buyer
North
Scale:!'=40'
Locations & dimensions are approximate.
Date
Date
Fire Protection Areas
TtKlNo.:
CT97-14
Lot No.:
Exhibit C-1
Shorepointe
/ZQfl
Fire Protection Zone
A-1 and A-2, Owner Maintained
Building Rights Restricted
Legend
Fire Protection Zones
HOA Maintained
HOA Maintained
Slope Area
North
Goldenbush Street
Scale: 1"=40'
Locations & dimensions are approximate.
Buyer Date
Buyer Date
Fire Protection Areas
TmctNo.:
CT97-14
•IOO