HomeMy WebLinkAboutCT 99-03; Villages of La Costa Greens Part 2 of 2; Engineering ApplicationRecording Requested By:
When Recorded Mail To:
Luce, Forward, Hamilton & Scripps LLP
600 W. Broadway, Suite 2600
San Diego, CA 92101
Artn: Nancy T. Scull, Esq.
This Space for Recorder's Use Only
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
LA COSTA GREENS
SECTION 15.4 OF THIS DECLARATION CONTAINS BINDING ARBITRATION
PROVISIONS IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND
A WAIVER OF THE CONSTITUTIONAL RIGHT TO A JURY.
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 3
1.1 Additional Charges 3
1.2 Architectural Committee 3
1.3 Best Management Practices 3
1.4 Budget 3
1.5 City 3
1.6 City Requirements 3
1.7 Close of Escrow 3
1.8 Common Expenses 4
1.9 Common Maintenance Area 5
1.10 Community Articles 5
1.11 Community Assessments 5
1.12 Community Association 6
1.13 Community Association' Maintenance Manual 6
1.14 Community Association Property 6
1.15 Community Board 6
1.16 Community Bylaws 6
1.17 Community Design Standards 6
1.18 Community Governing Documents 6
1.19 Community Handbook 7
1.20 Condominium and Condominium Owner 7
1.21 Condominium Project 7
1.22 Condominium Project Assessments 7
1.23 Condominium Project Association 7
1.24 Condominium Project Board 7
1.25 Condominium Project Common Area 7
1.26 Condominium Project Declaration 7
1.27 County 7
1.28 Covered Property 8
1.29 Declarant 8
.30 Declaration 8
.31 Delegate 8
.32 Delegate Districts 8
.33 ORE 8
.34 Election Committee 8
1.35 Eligible Holder 8
1.36 Federal Agencies 8
1.37 Final Maps 9
.38 Fire Suppression Zones 9
.39 First Mortgage 9
.40 First Mortgagee 9
.41 Fiscal Year 9
.42 Governmental Agency 9
.43 Habitat Preserve Areas 9
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.44 Habitat Preserve Adjacent Areas 9
.45 Habitat Preserve Restrictions 9
.46 Improvements 9
.47 Institutional Mortgagee 10
.48 Invitee 10
.49 La Costa Greens Community 10
.50 Lot 10
.51 Maintenance Obligations 10
.52 Member 10
.53 Merchant Builder or Merchant Builders 10
1.54 Mortgage 10
1.55 Mortgagee
1.56 Notice and Hearing 1
1.57 Operating Rules 1
1.58 Owner 1
1.59 Perimeter Walls and Fences 1
1.60 Person
1.61 Phase
1.62 Public Report
1.63 Public Use Areas 1
.64 Recreational Vehicle Storage Area 1
.65 Residence 12
.66 Residential Lot 12
.67 Special Benefit Areas 12
.68 Special Benefit Area Budget 12
.69 Special Benefit Maintenance Areas 12
.70 Supplementary Declaration 12
.71 Telecommunication Facilities 12
.72 Telecommunication Services 12
.73 Trail System 13
.74 Voting Power 13
ARTICLE 2 PROPERTY RIGHTS IN RESIDENTIAL LOTS AND ASSOCIATION
PROPERTY 13
2.1 Ownership of Community Association Property and Common
Maintenance Area 13
2.2 Rights of Use of the Community Association Property and Common
Maintenance Areas 14
2.3 Owners' Easements of Enjoyment 14
2.4 Establish Special Assessment District 15
2.5 Encroachment 16
2.6 Easements Reserved to Declarant, the Merchant Builders and/or
Community Association 16
2.7 Amendment to Eliminate Easements 18
ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS IN COMMUNITY
ASSOCIATION 19
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3.1 Ownership of Residential Lots 19
3.2 Membership 19
3.3 Classes of Voting Membership 20
3.4 Declarant's Right to Select Director 21
3.5 Continuing Approval of Declarant 21
3.6 Special Benefit Area Approvals 22
3.7 Commencement of Voting Rights 22
ARTICLE 4 POWERS AND DUTIES OF THE COMMUNITY ASSOCIATION 22
4.1 Powers of Community Association 22
4.2 Duties of the Community Association 26
4.3 Prohibited Activities 28
ARTICLE 5 ASSESSMENTS 32
5.1 Creation of Lien and Personal Obligation for Assessments 32
5.2 Maintenance Funds of Community Association 32
5.3 Purpose of Community Assessments 33
5.4 Nature of Assessments 33
5.5 Limitation on Assessments 35
5.6 Changes to Budget 36
5.7 Allocation of Community Assessments to Lots 37
5.8 Date of Commencement of Regular Assessments; Due Dates 38
5.9 Annual Levy of Regular Assessments 38
5.10 Notice and Assessment Installment Due Dates 38
5.11 Estoppel Certificate 38
5.12 Excess Funds 39
5.13 Collection of Assessments; Liens 39
5.14 Additional Charges 41
5.15 Waiver of Exemptions 41
5.16 Subordination of Lien to First Mortgages 42
5.17 No Offsets 42
5.18 Transfer of Covered Property 42
5.19 Failure to Fix Assessments 42
5.20 Personal Liability of Owner 42
5.21 Exempt Covered Property 42
5.22 Capitalization of Community Association 43
ARTICLE 6 ARCHITECTURAL CONTROL 43
6.1 Architectural Committee 43
6.2 Scope 44
6.3 Exemptions 44
6.4 Duties 44
6.5 Community Design Standards 44
6.6 Address 45
6.7 Fees 45
6.8 Meetings 45
6.9 Approval of Solar Energy Systems 45
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6.10 Waiver 45
6.11 Government Regulations 46
6.12 Waiver 46
6.13 Variances 46
6.14 Liability 47
6.15 Estoppel Certificate 47
6.16 Interpretation 47
6.17 Amendments 47
ARTICLE 7 USE RESTRICTIONS 48
7.1 Residential Use 48
7.2 Nuisances 48
7.3 Air Conditioning Fixtures 49
7.4 Utilities 49
7.5 Roofs 49
7.6 Antennae and Satellite Dishes 49
7.7 Exterior Maintenance and Repair; Owner's Obligations 50
7.8 Drainage 50
7.9 Water and Sewer Systems 50
7.10 No Hazardous Activities 50
7.11 Unsightly Articles 51
7.12 Temporary and Prefabricated Structures 51
7.13 Mining and Drilling 51
7.14 View Impairment 51
7.15 Landscaping 51
7.16 Parking and Vehicular Restrictions 52
7.17 Further Subdivision 53
7.18 Animals 53
7.19 Signs 53
7.20 Trees 53
7.21 Slope Control, Use and Maintenance 54
7.22 Habitat Preserve Areas 54
7.23 Erosion Control 54
7.24 La Costa Greens Storm Drains and Storm Water 55
7.25 Fire Suppression Zones 56
7.26 Window Coverings 56
7.27 Exterior Painting 56
7.28 Outdoor Lighting Restrictions 56
7.29 Sight Distance Corridors 57
7.30 Plant Species 57
7.31 Perimeter Wall and Fence 57
7.32 Open Space Lots 57
7.33 Indemnification 57
ARTICLE 8 ASSOCIATION PROPERTY, COMMON MAINTENANCE AREA AND
MAINTENANCE RESPONSIBILITIES 57
8.1 Maintenance and Use of Community Association Property 57
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8.2 Trail System 58
8.3 Compliance with Best Management Practices 58
8.4 Common Maintenance Area 58
8.5 Community Association Maintenance 58
8.6 Commencement of Maintenance 59
8.7 Storm Water Treatment Obligations 59
8.8 Drainage Facilities 60
8.9 Repair and Maintenance by Owner 60
8.10 Community Association's Right to Repair Neglected Lots 61
8.11 Landscape and Irrigation Maintenance 62
ARTICLE 9 INSURANCE AND CONDEMNATION 62
9.1 Insurance 62
9.2 Copies of Policies 64
9.3 Review of Insurance 65
9.4 Individual Insurance 65
9.5 Condemnation 65
ARTICLE 10 DESTRUCTION OF IMPROVEMENTS 65
10.1 Restoration of Improvements 65
ARTICLE 11 DEVELOPMENT RIGHTS 67
11.1 Limitations of Restrictions 67
11.2 Rights of Access and Completion of Construction 68
11.3 Size and Appearance of La Costa Greens Community 70
11.4 Marketing Rights 70
11.5 Declarant Rights 70
11.6 Amendment 70
11.7 Declarant Representative 70
ARTICLE 12 SUPPLEMENTARY DECLARATIONS 71
12.1 Covenants Running with the Land 71
12.2 Supplementary Declarations 71
12.3 Mergers or Consolidations 71
12.4 De-Annexation 71
ARTICLE 13 RIGHTS OF LENDERS 72
13.1 Payments of Taxes or Premiums by First Mortgagee 72
13.2 Priority of Lien of Mortgagee 72
13.3 Curing Defaults 72
13.4 Approval of First Mortgagees 72
13.5 Restoration of Community Association Property 73
13.6 Professional Management 73
13.7 Notice to Mortgagees 73
13.8 Documents to be Available 74
13.9 Conflicts 74
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ARTICLE 14 AMENDMENTS 74
14.1 Amendment 74
14.2 Conflict with Article 13 or Other Provisions of this Declaration 76
14.3 Approval by City 76
14.4 Business and Professions Code Section 11018.7 76
14.5 Reliance on Amendments 76
ARTICLE 15 TERM AND ENFORCEMENT 77
15.1 Duration 77
15.2 Enforcement and Nonwaiver 77
15.3 NOTICE OF ACTIONS AGAINST DECLARANT 78
15.4 ALTERNATIVE DISPUTE RESOLUTION 78
15.5 General Enforcement by the City 82
15.6 City Required Disclosures 83
15.5.4 Restricted Facilities Parking 84
15.7 Copy of Recorded Declaration to City 84
ARTICLE 16 GENERAL PROVISIONS 84
16.1 Headings 84
16.2 Severability 84
16.3 Cumulative Remedies 84
16.4 Violations as Nuisance 84
16.5 No Racial Restriction 85
16.6 Access to Books 85
16.7 Liberal Construction 85
16.8 Notification of Sale of Residential Lot 85
16.9 Notices 85
16.10 Number; Gender 85
16.11 Exhibits 85
16.12 Binding Effect 85
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DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
OF LA COSTA GREENS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF
LA COSTA GREENS ("Declaration") is made as of , 200_, by REAL
ESTATE COLLATERAL MANAGEMENT COMPANY, a Delaware corporation
("Declarant"), with reference to the facts set forth below.
RECITALS
A. Declarant is the Owner of the real property situated in the City of Carlsbad,
County of San Diego, State of California, more particularly described on Exhibit "A" attached
to this Declaration ("Covered Property").
B. Declarant intends to develop the Covered Property as a Master Planned
Development (as defined in Section 2792 of Title 10 of the California Code of Regulations),
which is also a "common interest development" pursuant to the Davis-Stirling Common Interest
Development Act. If developed as planned, the La Costa Greens Community will consist of
approximately 858 Residences, together with certain areas which will be conveyed to the
Community Association (as hereinafter defined) as Community Association Property. (Herein
the Covered Property subject to this Declaration and the Improvements situated thereon are
sometimes referred to as the "La Costa Greens Community"). However, there is no assurance
that the La Costa Greens Community will be completed as planned.
C. Declarant has formed the La Costa Greens Community Association, a California
nonprofit, mutual benefit corporation, for the purpose of exercising the powers and duties set
forth herein for the benefit of all of the Covered Property and each Owner of any portion of the
Covered Property.
D. The Owners of Residential Lots within the La Costa Greens Community will be
members of the La Costa Greens Community Association, a California nonprofit mutual benefit
corporation ("Community Association").
E. Before any Residential Lots are conveyed to Owners under a Public Report,
Declarant desires to establish covenants, conditions and restrictions upon the Covered Property
and each and every portion thereof, which will constitute a general scheme for the management
of the Covered Property and for the use, occupancy and enjoyment thereof, all for the purpose of
enhancing and protecting the value, desirability and attractiveness of the Covered Property and
enhancing the quality of life therein.
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INTRODUCTION TO THE PURPOSE OF THE DECLARATION
AND THE COMMUNITY GOVERNING DOCUMENTS
Declarant has established this Declaration to create a community for all of the Owners
within the Covered Property and to provide a governance structure for the La Costa Greens
Community. This Declaration reflects and sets forth those goals and provides the powers and
procedures necessary to govern and maintain the La Costa Greens Community.
The responsibilities and powers of the Community Association are not solely focused on,
or limited to control of the Owners and other people within La Costa Greens Community, the
Community Association has other powers and duties, including responsibility for the
management and maintenance of real property. While the Community Association has the power
to provide for the maintenance, management, and preservation of portions of the Covered
Property, the Community Association also has other powers and functions which are described
in this Declaration.
This Declaration also establishes an Architectural Committee which has jurisdiction over
design review for the La Costa Greens Community. The Architectural Committee administers,
interprets, and enforces the La Costa Greens Community Design Standards, which are
architectural standards and procedures designed to enhance the quality of all planning and
architecture within the La Costa Greens Community.
The La Costa Greens Community may also include areas where the Community
Association provides special services for the benefit of the Owners in those areas. These areas
are referred to as "Special Benefit Areas ". In such cases, the Owners within the Special Benefit
Areas may have the obligation to pay additional assessments for the special benefit which they
receive. The special benefit might include the maintenance by the Community Association of
areas such as private streets or slopes or similar areas which serve or benefit the Special Benefit
Areas. The Community Association may also appoint committees with representatives from the
Special Benefit Areas to participate in the administration and governance of the Special Benefit
Areas.
Throughout this Declaration, there are summaries (like this summary) which are
indicated in italics to aid the reader's comprehension and use of the Community Governing
Documents. In the event of a conflict between any summary or diagram and the text of any of the
Community Governing Documents, the text shall control.
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DECLARATION
NOW, THEREFORE, Declarant hereby declares and does hereby establish the following
general plan for the protection and benefit of all of the Covered Property and does hereby fix the
following protective covenants, conditions and restrictions upon each and every ownership
interest in the Covered Property and any other property annexed to this Declaration under which
covenants, conditions and restrictions shall be established and each ownership interest shall be
held, used, occupied, leased, sold, encumbered, conveyed and/or transferred. Each and all of the
covenants, conditions and restrictions are for the purpose of protecting the value and desirability
of and shall inure to the benefit of all of the Covered Property and shall run with and be binding
upon and pass with the real property 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.
Declarant hereby declares that all of the Covered Property described in Exhibit "A" shall be
subject to this Declaration and shall constitute the initial land subject to this Declaration.
ARTICLE 1
DEFINITIONS
Unless the context otherwise specifies or requires, the terms defined in this Article shall,
for all purposes of this Declaration, have the meanings herein specified.
1.1 Additional Charges. The term "Additional Charges" means costs, fees, charges
and expenditures, including without limitation, attorneys' fees, late charges, interest and
recording and filing fees actually incurred by the Community Association in collecting and/or
enforcing payment of assessments, fines and/or penalties.
1.2 Architectural Committee. The term "Architectural Committee" means the
committee created under the Article of this Declaration entitled "Architectural Committee."
1.3 Best Management Practices. The term "Best Management Practices" means the
Best Management Practices imposed from time to time by Governmental Agencies, including
those which are set forth in this Declaration and the Community Design Standards.
1.4 Budget. The term "Budget" means a written, itemized estimate of the Community
Association's income and Common Expenses prepared pursuant to the Community Bylaws.
1.5 City. The term "City" means the City of Carlsbad, State of California, a
municipal corporation.
1.6 City Requirements. The term "City Requirements" refers to the conditions and
requirements imposed by the City in connection with the approval of Tentative Map No. 99-03,
any Final Maps covering all or any portion of the Covered Property and any other approvals
identified in this Declaration or any Supplementary Declaration.
1.7 Close of Escrow. The term "Close of Escrow" means the date on which a deed is
recorded conveying a Residential Lot under authority of a Public Report. The term "Close of
Escrow" shall not include the recordation of a deed (i) between Declarant and (a) any successor
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to any rights of Declarant hereunder or (b) any Merchant Builder or (ii) between Merchant
Builders.
1.8 Common Expenses. The term "Common Expenses" means the actual and
estimated costs and expenses incurred or to be incurred by the Community Association,
including, but not limited to, the following:
1.8.1 maintenance, management, operation, repair and replacement of the
Community Association Property and Common Maintenance Area (including any Special
Benefit Areas) and all other areas within the Covered Property which are maintained by the
Community Association;
1.8.2 the cost of any services provided from time to time by the Community
Association including, any recreational, technology or other consultants which the Community
Association elects to maintain to provide services to the Community Association;
1.8.3 the costs incurred in administering any committees formed by the
Community Association, subject to the provisions of the Community Governing Documents;
1.8.4 due but unpaid Community Assessments;
1.8.5 maintenance by the Community Association of medians and other areas
within the public rights-of-way to the extent required by the City, including without limitation,
the medians within Alicante Road and any bus shelters and similar structures or areas within the
public rights-of-way which the Community Association elects to or is required to maintain;
1.8.6 costs of management and administration of the Community Association,
including, but not limited to, compensation paid by the Community Association to managers,
accountants, attorneys, architects and employees;
1.8.7 the costs of any utilities, trash pickup and disposal, gardening, patrols and
other services benefitting the Owners and their Residential Lots to the extent such services are
paid for by the Community Association;
1.8.8 the costs of fire, casualty, liability, worker's compensation and any other
insurance maintained by the Community Association;
1.8.9 reasonable reserves as deemed appropriate by the Community Board or
otherwise required to be maintained under the Community Governing Documents;
1.8.10 the costs of bonding of the members of the Community Board, the
Architectural Committee, any professional managing agent or any other person handling the
funds of the Community Association;
1.8.11 taxes paid by the Community Association;
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1.8.12 amounts paid by the Community Association for the discharge of any lien
or encumbrance levied against all or any portion of the Community Association Property or the
Common Maintenance Areas;
1.8.13 the costs of any other services provided by or for the Community
Association; and
1.8.14 the costs of any other item or items designated by, or in accordance with
other expenses incurred by the Community Association for any reason whatsoever in connection
with the operation, or governance of the La Costa Greens Community or in furtherance of the
purposes or the discharge of any obligations imposed on the Community Association by the
Community Governing Documents.
1.9 Common Maintenance Area. The term "Common Maintenance Area" or
"Common Maintenance Areas" means (a) any portion of the Covered Property which is not
owned by the Community Association but which is required to be maintained by the Community
Association and (b) any property located outside of the boundaries of the Covered Property
including public property, public rights of way and median areas (including without limitation,
all median landscaping within any streets located within the La Costa Greens Community except
median landscaping located within Alga Road and El Camino Real), the maintenance of which
the Community Association is responsible for as provided in this Declaration or any
Supplementary Declaration. The Common Maintenance Area may include, without limitation,
easements over the Residential Lots of the Owners for maintenance purposes. The Common
Maintenance Areas also include any private lighting covered by any Encroachment Removal
Agreements entered into by the City and the Declarant, unless otherwise designated in a
Supplementary Declaration. The Common Maintenance Areas shall be described in the
Supplementary Declarations.
1.10 Community Articles. The term "Community Articles" means the Articles of
Incorporation of the Community Association.
1.11 Community Assessments. The term "Community Assessments" refers
collectively or individually, as required by the context, to all or any of the assessments levied by
the Community Association in accordance with Article 6 of this Declaration and shall include
the Community Assessments defined below.
1.11.1 Regular Assessment. The terms "Regular Assessment" or "Regular
Assessments" means the assessment to be paid by each Owner to the Community Association for
Common Expenses as described in Subsection 5.4.1 of this Declaration.
1.11.2 Special Assessment. The terms "Special Assessment" or "Special
Assessments" means an assessment levied by the Community Association if the Community
Association determines that the Regular Assessments will be inadequate pursuant to the
provisions of Subsection 5.4.2 of this Declaration.
1.11.3 Capital Improvement Assessment. The terms "Capital Improvement
Assessment" or "Capital Improvement Assessments" means an assessment against each Owner
and such Owner's Residential Lot, representing a portion of the cost to the Community
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Association for installation or construction of any capital improvements for the Community
Association Property which the Community Association may from time to time authorize under
the provisions of Subsection 5.4.3 of this Declaration.
1.11.4 Enforcement Assessment. The terms "Enforcement Assessment" or
"Enforcement Assessments" refers to the charges assessed against any Owner and such Owner's
Residential Lot to reimburse the Community Association as a result of an Owner's failure to
comply with the provisions of this Declaration as described in Subsection 5.4.4 of this
Declaration.
1.11.5 Reconstruction Assessment. The terms "Reconstruction Assessment" or
"Reconstruction Assessments" means a charge against each Owner and such Owner's Lot
representing a portion of the cost to the Community Association for reconstruction of any portion
or portions of the Community Association Property or Common Maintenance Area which is
imposed under the provisions of Article 11 of this Declaration.
1.11.6 Special Services Assessment. The term "Special Services Assessment"
means an assessment which is levied on some but not all of the Owners for special services
provided by the Community Association to such Owners as described in Subsection 5.4.6 of this
Declaration.
1.12 Community Association. The term "Community Association" means the La
Costa Greens Community Association, a California nonprofit mutual benefit corporation.
1.13 Community Association' Maintenance Manual. The term "Community
Association's Maintenance Manual" refers to the manual which may be prepared by Declarant or
its agents and provided to the Association, specifying obligations for maintenance of the
Association Property, the Community Association Property and the Common Maintenance Areas
by the Community Association, as updated and amended from time to time.
1.14 Community Association Property. The term "Community Association Property"
means all the real property owned in fee simple by the Community Association. The
Community Association Property shall be described in the Supplementary Declarations (as
hereinafter defined).
1.15 Community Board. The term "Community Board" means the Board of Directors
of the Community Association.
1.16 Community Bylaws. The term "Community Bylaws" means the Community
Bylaws of the Community Association, as they may from time to time be amended, which are or
shall be adopted by the Board.
1.17 Community Design Standards. The term "Community Design Standards" means
the design criteria, guidelines and policies and procedures adopted by the Community Board for
the Architectural Committee.
1.18 Community Governing Documents. The term "Community Governing
Documents" means the Community Articles, Community Bylaws, Community Handbook (which
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includes the Community Design Standards), this Declaration and the Supplementary
Declarations, and any amendments to any of the foregoing.
1.19 Community Handbook. The term "Community Handbook" means the handbook
adopted by the Community Board prior to the first conveyance of a Residential Lot to an Owner
under a Public Report which sets forth the rules, procedures and other guidelines for the
governance of the Covered Property. The Community Handbook includes the Community
Design Standards.
1.20 Condominium and Condominium Owner. The terms "Condominium" and
"Condominium Owner" means, respectively, the estate and the Owner thereof of any
condominium within the La Costa Greens Community established pursuant to Sections 1351(f)
of the Civil Code of the State of California or any similar statute hereinafter enacted.
1.21 Condominium Project. The term "Condominium Project" means all Lots,
improved or unimproved, and Condominium Project Common Area, if any, of a separate
subdivision or development within the Covered Property as established by a Final Map or
condominium plan, record of survey or other such land division for which a separate
Condominium Project Association other than the Community Association, is formed to govern
and control the operation and maintenance of the Condominium Project and which is
encumbered by a Condominium Project Declaration.
1.22 Condominium Project Assessments. The term "Condominium Project
Assessments" means assessments determined pursuant to any Condominium Project Declaration
which are levied exclusively on Residential Lots contained in a particular Condominium Project
and which are created pursuant to a Condominium Project Declaration and the articles of
incorporation and bylaws therefor.
1.23 Condominium Project Association. The term "Condominium Project
Association" means the homeowners association formed to operate and govern a Condominium
Project.
1.24 Condominium Project Board. The term "Condominium Project Board" means the
governing body of a Condominium Project Association as established pursuant to the
Condominium Project Declaration and the articles of incorporation and bylaws for the
Condominium Project Association.
1.25 Condominium Project Common Area. The term "Condominium Project Common
Area" means the area within the boundaries of a Condominium Project owned by the
Condominium Project Association or collectively by all or some of the Owners of Residential
Lots within the Condominium Project in common and restricted to use primarily by such Owners
and such Owner's lessees and invitees.
1.26 Condominium Project Declaration. The term "Condominium Project
Declaration" means the covenants, conditions and restrictions recorded for a Condominium
Project.
1.27 County. The term "County" means the County of San Diego.
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1.28 Covered Property. The term "Covered Property" includes all of the real property
described in Exhibit "A" of this Declaration, and such Additional Property as may hereafter be
brought within the jurisdiction of this Declaration pursuant to a Supplementary Declaration.
1.29 Declarant. The term "Declarant" means Real Estate Collateral Management
Company, a Delaware corporation, and its successors and assigns, if such successors and assigns
acquire any or all of Declarant's interest in the Covered Property for the purpose of purchase or
sale, and Declarant has expressly transferred or assigned to such successors or assigns its rights
and duties as Declarant to a portion or all of the La Costa Greens Community. For any successor
or assignee of "Declarant" to be deemed a Declarant under the terms hereof, Declarant shall
record in the County a certificate so designating said successor or assignee as Declarant. A
successor Declarant shall also be deemed to include the beneficiary under any deed of trust
securing an obligation from a then existing Declarant encumbering all or any portion of the
Covered Property, which beneficiary has acquired any such property by foreclosure, power of
sale or deed in lieu of such foreclosure or sale.
1.30 Declaration. The term "Declaration" means this Declaration of Covenants,
Conditions and Restrictions of La Costa Greens, and any further amendments thereto.
1.31 Delegate. The term "Delegate" refers to a person elected in the manner provided
in the Community Bylaws to represent the collective voting power on certain issues of all of the
Members within the Delegate District of such Delegate.
1.32 Delegate Districts. The term "Delegate District" refers to a particular portion of
the Covered Property which is represented by a Delegate and is created in the manner described
in the Section of the Community Bylaws entitled "Delegate Districts."
1.33 ORE. The term "ORE" means and refers to the California Department of Real
Estate or any successor agency that is responsible for administering the sale of subdivided lands
pursuant to Sections 11000, et. seq., of the California Business and Professions Code, or any
similar statute hereinafter enacted.
1.34 Election Committee. The term "Election Committee" means and refer to the
committee appointed by the Community Board (or, if the Board so elects, the Community Board
acting as the Election Committee), to nominate candidates to the Community Board and to
perform other functions relating to election procedures as described in the Community
Governing Documents.
1.35 Eligible Holder. The term "Eligible Holder" means any First Mortgagee who has
given written notice to the Community Association specifying its name, address and the
Residential Lot number or address of the Residential Lot and requesting written notice of any or
all of the events specified in this Declaration.
1.36 Federal Agencies. The term "Federal Agencies" refers collectively to one or
more of the following agencies and the following letter designation for such agencies shall mean
and refer to, respectively, the agency specified within the parentheses following such letter
designation: FHA (Federal Housing Administration), FHLMC (Federal Home Loan Mortgage
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Corporation), FNMA (Federal National Mortgage Association), GNMA (Government National
Mortgage Association), and VA (United States Department of Veterans Affairs).
1.37 Final Maps. The term "Final Maps" refers to the final subdivision maps covering
all or any portion of the La Costa Greens Community.
1.38 Fire Suppression Zones. The term "Fire Suppression Zones" means the areas
designated by the City as fire suppression zones. The Fire Suppression Zones will be designated
in a Supplementary Declaration.
1.39 First Mortgage. The term "First Mortgage" means a first mortgage or deed of
trust which encumbers any one (1) or more Residential Lots and has priority over any other
mortgage or deed of trust encumbering such Residential Lot, and shall include any first mortgage
or deed of trust securing an obligation of Declarant, a Merchant Builder, or an Owner.
1.40 First Mortgagee. The term "First Mortgagee" means the Mortgagee of a First
Mortgage.
1.41 Fiscal Year. The term "Fiscal Year" means the fiscal accounting and reporting
period of the Community Association selected by the Community Board.
1.42 Governmental Agency. The term "Governmental Agency" means the City, the
County of San Diego and any other federal, state, local or municipal governmental entity or
quasi-governmental entity or agency including, without limitation, any special assessment
district, maintenance district or community facilities district having jurisdiction over the Covered
Property.
1.43 Habitat Preserve Areas. The term "Habitat Preserve Areas" means the areas
which have been designated by certain Governmental Agencies as habitat preserve areas
designated on Exhibit "B" attached hereto.
1.44 Habitat Preserve Adjacent Areas. The term "Habitat Preserve Adjacent Areas"
means the portions of the Covered Property, which may include Residential Lots and
Community Association Property which are contiguous to or adjacent to the Habitat Preserve
Areas and which are subject to the Habitat Preserve Restrictions. The Habitat Preserve Adjacent
Areas will be designated in Supplementary Declarations.
1.45 Habitat Preserve Restrictions. The term "Habitat Preserve Restrictions" refers to
the restrictions imposed on the Habitat Preserve Areas specified in Exhibit "C", and any
additional restrictions imposed in a Supplementary Declaration.
1.46 Improvements. The term "Improvements" refers to buildings, structures or
improvements of any type or kind constructed within the La Costa Greens Community,
including, but not limited to, buildings, walkways, trails, utility installations, swimming pools
and other recreational facilities, garages and garage conversions, carports, roads, driveways,
parking areas, fences, screening walls, block walls, retaining walls, awnings, patio and balcony
covers, stairs, decks, landscaping, irrigation systems, antennae, the exterior surfaces of any
visible structure painting, hedges, windbreaks, railings, plantings, planted trees and shrubs, poles,
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signs, storage areas, exterior and solar or wind-powered energy systems or equipment and water-
softening, heater or air conditioning and heating fixtures or equipment; the grading, excavation,
filling or similar disturbance to the surface of the land and any change or alteration of any
previously approved Improvement including any change of exterior appearance, color or texture.
1.47 Institutional Mortgagee. The term "Institutional Mortgagee" means a First
Mortgagee which is (i) a bank, savings and loan association, insurance or mortgage company or
other entity or institution chartered under federal and/or state law; (ii) an insurer or governmental
guarantor of a First Mortgage; (iii) any federal or state agency; (iv) the State of California as the
vendor under an installment land sales contract covering a Residential Lot; or (v) any other
institution specified by the Community Board in a recorded instrument, who is the Mortgagee of
a Mortgage or the beneficiary of a Deed of Trust encumbering a Residential Lot.
1.48 Invitee. The term "Invitee" means any person whose presence within the La
Costa Greens Community is approved by or is at the request of a particular Owner, including, but
not limited to, lessees, tenants and the family, guests, employees, licensees or invitees of
Owners, tenants or lessees.
1.49 La Costa Greens Community. The term "La Costa Greens Community" refers to
the Covered Property and all Improvements from time to time situated thereon.
1.50 Lot. The term "Lot" means any plot of land shown as a separate lot or parcel
upon any recorded Final Map or parcel map of any portion of the Covered Property.
1.51 Maintenance Obligations. The term "Maintenance Obligations" refers to the
Community Association's obligations to perform (i) all reasonable maintenance consistent with
the terms of the Community Association's Maintenance Manual, any maintenance obligations
and schedules in any warranty offered by Declarant or any manufacturer, and any maintenance
obligations and schedules otherwise provided to the Community Association or the Owners by
Declarant or any manufacturer, as applicable; and (ii) any commonly accepted maintenance
practices to prolong the life of the materials and construction of the Community Association
Property and Common Maintenance Areas, as applicable, as updated and amended from time to
time.
1.52 Member. The term "Member" means every person or entity who qualifies for
membership under this Declaration including Declarant, as long as Declarant qualifies for
membership under Article 3 of this Declaration.
1.53 Merchant Builder or Merchant Builders. The term "Merchant Builder" or
"Merchant Builders" means any person or entity which acquired or has entered into a purchase
agreement to acquire from Declarant a portion of the La Costa Greens Community for the
purpose of improving such property with Residences and conveying such Residences to
purchasers under authority of a Public Report in accordance with a Declaration of Development
Covenants, Conditions and Restrictions recorded against the Covered Property by Declarant in
connection with the conveyance to a Merchant Builder.
1.54 Mortgage. The term "Mortgage" means a deed of trust as well as a mortgage
encumbering a Residential Lot.
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1.55 Mortgagee. The term "Mortgagee" means the beneficiary of a deed of trust as
well as the mortgagee of a Mortgage.
1.56 Notice and Hearing. The term "Notice and Hearing" means the procedure which
gives an Owner notice of an alleged violation of the Community Governing Documents and the
opportunity for a hearing before the Community Board.
1.57 Operating Rules. The term "Operating Rules" refers to those rules set forth in the
Community Handbook that constitute an operating rule under Civil Code Section 1357.100 et
seq.
1.58 Owner. The term "Owner" means the record Owners, including Declarant and
Merchant Builders, 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.
1.59 Perimeter Walls and Fences. The term "Perimeter Walls and Fences" refers to the
walls and fences bordering portions of the La Costa Greens Community designated in any
Supplementary Declaration which shall be maintained by the Community Association pursuant
to the provisions of this Declaration.
1.60 Person. The term "Person" means a natural individual or individuals or any other
entity with the legal right to hold title to real property. When the word "person" is not
capitalized, the word refers only to natural persons.
1.61 Phase. The term "Phase" means a group of Lots which are or have been made
subject to this Declaration and are designated by Declarant as a separate Phase by a document
(which may be a Supplementary Declaration or another notice of annexation) executed by
Declarant and recorded with the County Recorder of the County of San Diego. Should Declarant
not have made a contrary designation, each group of Residential Lots and any other Lots which
have been made subject to this Declaration and are covered by a separate Public Report (as
defined below) issued by the DRE or otherwise recognized by the California Real Estate
Commissioner as a separate Phase shall constitute a separate Phase.
1.62 Public Report. The term "Public Report" means the final subdivision public
report issued by the DRE for a Phase, including any amendments to such Public Report.
1.63 Public Use Areas. The term "Public Use Areas" means any portion of the
Community Association Property designated for public or quasi-public use as a condition of
approval of any tentative map or Final Map for any part of the La Costa Greens Community or as
required under the City Requirements or as otherwise required by any other Governmental
Agencies. Public Use Areas may include, without limitation, parcels designated for parks, open
space and trails. The Public Use Areas shall be designated by Declarant in a Supplementary
Declaration.
1.64 Recreational Vehicle Storage Area. The term "Recreational Vehicle Storage
Area" refers to Lot 2 of Final Map No. 99-03 which shall be conveyed to the Community
Association for recreational vehicle lot purposes as described in Section 7.16. of this
Declaration.
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1.65 Residence. The term "Residence" refers to each residential dwelling or
condominium situated within a Lot.
1.66 Residential Lot. The term "Residential Lot" refers to each Lot upon which a
Residence has been or is planned to be constructed and in the case of a Condominium, all
elements of a "unit", "residential unit" or "living unit" as such terms or similar terms may be
used in a condominium plan or subdivision map recorded for said condominium pursuant to the
California Civil Code.
1.67 Special Benefit Areas. The term "Special Benefit Areas" refers to the portions of
the Covered Property which directly receive a special benefit (which benefit may be in the form
of amenities provided or maintenance or other services offered) and for which additional
Assessments will be imposed on the Owners within the Special Benefit Areas who receive such
special benefits pursuant to the provisions of this Declaration. The Special Benefit Areas shall
be described in a Supplementary Declaration.
1.68 Special Benefit Area Budget. The term "Special Benefit Area Budget" refers to
the elements of the budget for the Community Association which itemizes the cost components
to be assessed against portions of the Covered Property within a Special Benefit Area, as
provided in this Declaration and the Community Bylaws.
1.69 Special Benefit Maintenance Areas. The term "Special Benefit Maintenance
Areas" refers to those areas within a Special Benefit Area which will be maintained by the
Community Association. The Special Benefit Maintenance Areas shall be designated in a
Supplementary Declaration.
1.70 Supplementary Declaration. The term "Supplementary Declaration" means those
certain declarations of covenants, conditions and restrictions, or similar instruments which,
(a) annex any portion of the Additional Property and extend the plan of this Declaration to such
Additional Property and/or (b) identify any Special Benefit Areas and/or describe certain areas
within the Covered Property that are to be maintained by the Community Association and/or
(c) contain such other complementary additions and modifications as are provided in Article 13
the other provisions of this Declaration and/or (d) make technical or minor corrections to this
Declaration or any other Supplementary Declaration. A Supplementary Declaration may also be
recorded by a Merchant Builder to set forth alternative dispute resolution procedures governing
disputes or claims between an Owner and a Merchant Builder, which do not and will not include
the Declarant or the Community Association.
1.71 Telecommunication Facilities. The term "Telecommunication Facilities" means
equipment, cables, conduits, inner ducts, vaults, connecting hardware, wires, poles, transmitters,
antennae and other facilities and structures necessary for or used in the process of
Telecommunication Services.
1.72 Telecommunication Services. The term "Telecommunication Services" means
Telecommunication Facilities, Improvements and services for cable television, communication,
telecommunications, antennae, high-speed data, and all related vertical services, intranet,
internet, information transfer, transmission, video, and other similar services or technological
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evolutions of the foregoing and any other Telecommunication Services identified in a
Supplementary Declaration.
1.73 Trail System. The term "Trail System" or "Trail Systems" refers to any trail
system within the Community Association Property or Common Maintenance Areas established
under the City Requirements which is required to be maintained either by the City or the
Community Association. The Trail Systems will be designated in a Supplementary Declaration.
1.74 Voting Power. The term "Voting Power" means the total number of votes
allocated to Residential Lots as set forth in the Section of Articles entitled "Classes of Voting
Membership".
ARTICLE 2
PROPERTY RIGHTS IN RESIDENTIAL LOTS AND ASSOCIATION PROPERTY
In addition to the Residential Lots, there are many different types of areas within the La
Costa Greens Community. Some of the areas consist of Community Association Property which
are areas actually owned by the Community Association. There are also areas known as
Common Maintenance Areas, which are areas over which the Community Association has
easements for maintenance. Many of these areas will be identified in Supplementary
Declarations to this Declaration. Each Owner's rights of enjoyment within the La Costa Greens
Community, including in certain cases, the Residential Lots, are limited by some of the property
rights which are described in this Article.
2.1 Ownership of Community Association Property and Common Maintenance Area.
Fee title to the Community Association Property and the easement rights in the Common
Maintenance Area for each Phase of the Covered Property shall be conveyed to, accepted and
thereafter owned by the Community Association in accordance with a phasing plan to be
approved by the DRE as such phasing plan may be modified from time to time. The Community
Association must accept the conveyance of fee title to any Community Association Property or
easement rights in any Common Maintenance Area, and the Community Association shall
execute each such deed and any accompanying escrow instructions if requested to do so by
Declarant or a Merchant Builder. No Owner shall interfere with the exercise by the Community
Association, Declarant or a Merchant Builder of its rights or the fulfillment of its obligations
hereunder. Any such conveyances shall be made free and clear of all liens, except real property
taxes and assessments, which may be due after such conveyance, and shall be subject to any
easements, covenants, conditions and reservations then of record, including, without limitation,
those set forth on any Final Map and this Declaration. Additionally, Declarant and a Merchant
Builder (with Declarant's written consent) shall have an easement and right of entry to enter the
Community Association Property to complete the construction of any landscaping or other
Improvements to be installed on the Community Association Property and Common
Maintenance Area or to perform any work under any warranties. Neither such construction nor
such maintenance shall in any way postpone the commencement of Community Assessments
pursuant to this Article or entitle a Member to claim any offset or reduction in the amount of
such Community Assessments.
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2.2 Rights of Use of the Community Association Property and Common Maintenance
Areas. The interest of each Owner in the use and benefit of the Community Association
Property and Common Maintenance Area shall be appurtenant to the Owner's Residential Lot
subject to the Community Association's right to exercise exclusive jurisdiction and control over
the Community Association Property and Common Maintenance Area and the other rights,
restrictions and easements described in this Declaration, the City Requirements, any Final Map
and any other matters of record. The nature, design, quantity, quality and all other attributes of
the Community Association Property and Common Maintenance Area, and the facilities and
amenities thereon, shall be determined by Declarant in Declarant's sole and absolute discretion
or by a Merchant Builder (with Declarant's written consent).
2.3 Owners' Easements of Enjoyment. Every Owner shall have a non-exclusive
easement for use and enjoyment in and to the Community Association Property and such right
shall be appurtenant to and shall pass, with the title to every Residential Lot, subject to the
provisions set forth below and any rights and restrictions set forth elsewhere in this Declaration
and the other Community Governing Documents and the Final Map and City Requirements. The
ownership interests in the Community Association Property and Residential Lots described in
this Article are subject to the easements granted and reserved in this Declaration. Each of the
easements reserved or granted herein shall be deemed to be established upon the recordation of
this Declaration and shall be covenants running with the land for the use and benefit of the
Owners, the Community Association and the Declarant. Individual grant deeds to Residential
Lots may, but shall not be required to, set forth the easements specified in this Declaration.
2.3.1 Limits on Users of Community Association Property. The Community
Association shall have the right to (a) limit the use of portions of the Community Association
Property except any portions designated as Public Use Areas solely to those Owners who own
Residential Lots or solely to those Owners who own Residential Lots within any applicable
Special Benefit Area, (b) limit or permit usage thereof by non-Members as the Community
Association deems appropriate and/or (c) permit members of the public to use portions of the
Community Association Property in addition to the areas designated as Public Use Areas. The
Community Association may limit the number of guests, invitees, tenants, permittees or agents
of Owners using the Community Association Property.
2.3.2 Suspend Rights of Members. The Community Association shall have the
right, after Notice and Hearing, to temporarily suspend the voting rights and right to use of the
Community Association Property by an Owner pursuant to the terms of this Declaration and the
Community Handbook.
2.3.3 Dedicate or Grant Easements. The Community Association shall have the
right to dedicate or transfer or grant easements over all or any portion of the Community
Association Property to any Governmental Agency or other Persons for such purposes and
subject to such conditions as may be agreed to by the Community Association.
2.3.4 Borrow Funds. The Community Association shall have the right, in
accordance with the Community Governing Documents, to borrow money for the purpose of
improving, repairing or adding to the Community Association Property and for the
administration of the Community Association and its function and to pledge personal property
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assets of the Community Association for such loan. The Community Association may not
encumber the Community Association Property with monetary liens unless the vote or written
consent of two-thirds (2/3rds) of the Voting Power of the Community Association is obtained
except that the vote or written consent of the Members shall not be required for any municipal or
other similar financing offered by a Governmental Agency or for any borrowing that does not
exceed five percent (5%) of the gross budget (in the aggregate) for a Fiscal Year.
2.3.5 Entry by Community Association. The Community Association and the
Community Association's agents and employees shall have the right (but not the obligation) to
enter upon the Residential Lots (other than the interior of the Residence situated thereon) to
enforce the provisions of this Declaration or to perform its maintenance obligations under this
Declaration.
2.3.6 Entry by the City. The City and the City's agents and employees shall
have the right (but not the obligation) to enter upon the Community Association Property and
any Common Maintenance Area to enforce the provisions of this Declaration in favor of, or in
which the City has an interest.
2.3.7 Restrictions on Use Imposed on Community Association Property. The
Community Association Property shall be subject to the restrictions set forth in the City
Requirements, including without limitation, open space easements or easements for access of the
property dedicated to the City upon the filing of record of the Final Maps covering all or any
portion of the Covered Property.
2.3.8 Hiking Trail System. A hiking trail system may be constructed within
certain portions of the Community Association Property and/or Common Maintenance Areas in a
location and based upon a design approved by the City ("Trail System") in connection with the
overall development of the La Costa Greens Community. Declarant has dedicated to the City a
public access easement over portions of the Trail System included within the Public Use Areas
and the public shall have the right to use any portion of the Trail System which has been so
dedicated. The rights and obligations of Declarant and the City with regard to the Trail System
and the conditions of use, improvement and maintenance of the portions of the Trail System
included within the Public Use Areas are set forth in the recorded Final Maps covering the La
Costa Greens Community and the other City Requirements.
2.3.9 Bicycle and Pedestrian Paths. The Community Association Property or
Common Maintenance Areas shall be subject to the right of the public to use any bicycle and
pedestrian paths included with the Public Use Areas which are dedicated to the City for public
use.
2.3.10 Community Association Easement. The Community Association shall
have an easement over the Common Maintenance Areas in each Phase for performing its duties
and exercising its powers described in this Declaration, including, without limitation,
maintenance and refurbishment and replacement of the Common Maintenance Areas.
2.4 Establish Special Assessment District. The Community Association shall have
the right to establish, in cooperation with the City, a special assessment district for the
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performance of all or a portion of the maintenance and other functions now within the
responsibility of the Community Association, together with the right of the Community
Association to convey, lease or otherwise transfer, subject to the provisions of this Declaration,
all or any portion of the Community Association Property to said district. In the event Declarant
or any Merchant Builder owns any portion of the Covered Property or the Additional Property,
the prior consent of the Declarant shall be obtained prior to the formation of any special
assessment district.
2.5 Encroachment. There are hereby reserved and granted for the benefit of each
Residential Lot, as dominant tenement, over, under and across each other Residential Lot and
Community Association Property, as servient tenements, and for the benefit of the Community
Association Property, as dominant tenement, over, under and across each Residential Lot, as
servient tenement, non-exclusive easements for encroachment, support, occupancy and use of
such portions of Residential Lots and Community Association Property as are encroached upon,
used and occupied by the dominant tenement as a result of any original construction design,
accretion, erosion, addition, deterioration, decay, errors in original construction, movement,
settlement, shifting or subsidence of any building, structure, or other improvements or any
portion thereof, or any other cause. In the event any portion of the La Costa Greens Community
is partially or totally destroyed, the encroachment easement shall exist for any replacement
structure which is rebuilt pursuant to the original construction design. The easement for the
maintenance of the encroaching improvement shall exist for as long as the encroachments exists;
provided, however, that no valid easement of encroachment shall be created due to the willful
misconduct of the Community Association or any Owner. Any easement of encroachment may,
but need not be, cured by repair and restoration of the structure.
2.6 Easements Reserved to Declarant, the Merchant Builders and/or Community
Association. There are hereby reserved the easements set forth below.
2.6.1 Master Telecommunications Easement. There is hereby reserved to
Declarant with the right to grant and transfer the same, for the benefit of Declarant (and, with the
written consent of Declarant, the Merchant Builders) and each of their respective agents,
subcontractors, invitees, employees and contractors, and for the benefit of their respective
successors and assigns, blanket easement (collectively, "Telecommunications Easements") over
the Covered Property for access and for purposes of constructing, installing, locating, altering,
operating, maintaining, inspecting, upgrading and enhancing Telecommunications Facilities
(collectively, "Telecommunications Purposes") for the benefit of Declarant and its subsidiaries,
transferees, successors and assigns. Such easements are freely transferable. No one, except for
Declarant, and Declarant's transferees may use the Covered Property for Telecommunications
Purposes. All Telecommunications Facilities shall be owned, leased or licensed by Declarant, as
determined by Declarant, in its sole discretion and business judgment. Transfer of the Covered
Property does not imply transfer of any Telecommunications Easements or Telecommunications
Facilities. The holders of the Telecommunications Easements may not exercise the rights
reserved in this Section in any manner which will unreasonably interfere with the reasonable use
and enjoyment of the Covered Property by any Owner. If the exercise of any
Telecommunications Easement results in damage to the Covered Property, then the easement
holder who caused the damage shall, within a reasonable period of time, repair such damage.
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2.6.2 Master Cable Television Service Easement. There is hereby reserved to
Declarant with the right to grant and transfer the same, for the benefit of Declarant (and, with the
written consent of Declarant, the Merchant Builders) and each of their respective agents,
subcontractors, invitees, employees and contractors, and for the benefit of their respective
successors and assigns, nonexclusive easements for access and for purposes of constructing,
installing, locating, altering, operating, maintaining, inspecting, upgrading and enhancing cable
television system lines, facilities, and equipment. The community cable television lines,
facilities and equipment may be owned, leased or licensed by Declarant, as determined by
Declarant, in its sole discretion and business judgment. Transfer of all or any portion of the
Covered Property does not imply the transfer of any such cable television lines, facilities or
equipment located thereon. The holders of the easements reserved in this Section may not
exercise their rights hereunder in any manner which will unreasonably interfere with the
reasonable use and enjoyment of the Covered Property by any Owner.
2.6.3 Easement for Declarant and Merchant Builders Over Community
Association Property. Declarant hereby expressly reserves for the benefit of Declarant and all
Merchant Builders with the right to grant and transfer the same and each of their respective
agents, subcontractors, invitees, employees and contractors, and for the benefit of their respective
successors and assigns, a nonexclusive easement, in, to, and over the Community Association
Property for access, ingress, egress, use and enjoyment, in order to show the Covered Property or
Additional Property to Merchant Builders and other prospective purchasers, including, without
limitation, prospective purchasers of the Merchant Builders and to develop, construct, market,
sell, lease or otherwise dispose of the Covered Property or the Additional Property all as
provided in the Article hereof entitled "Development Rights." Such easement shall continue
until the last Close of Escrow under a Public Report in the Covered Property and the Additional
Property has occurred; provided, however, that such use shall not unreasonably interfere with the
rights of enjoyment of the other Owners as provided herein.
2.6.4 Irrigation Easements. Declarant hereby reserves for the benefit of
Declarant and the Community Association with the right to grant and transfer the same, and for
the benefit of their respective successors and assigns, a nonexclusive easement in, to and over the
Community Association Property and Common Maintenance Areas and any other areas
designated in a Supplementary Declaration for the installation, maintenance, repair and
replacement of irrigation and water lines for the benefit of the Community Association.
2.6.5 Easement Over the Common Maintenance Area on Lots. Declarant (and
with the written consent of Declarant, the Merchant Builders) reserve, for the benefit of the
Community Association, an easement over the portion of the Common Maintenance Area, if any,
on the Lots for maintenance and over the remainder of the Lots for access, ingress and egress
necessary to perform such maintenance. No Owner may interfere with the exercise of the rights
under the easement reserved in this Section.
2.6.6 Drainage Easements. Declarant reserves for the benefit of the Covered
Property, the Owners, the Merchant Builders, and the Community Association, reciprocal
nonexclusive easements for drainage of water over, across and on the Covered Property.
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2.6.7 Easements for Public Service Use. In addition to the foregoing easements,
Declarant reserves easements over the Covered Property for public services of the Governmental
Agencies, including but not limited to, the right of law enforcement and fire protection personnel
to enter upon any part of the Covered Property for the purpose of carrying out their official
duties.
2.6.8 Perimeter Wall Easements. Declarant and each Merchant Builder reserves
for the benefit of the Community Association the following easements:
(a) An easement over all Lots abutting the Community Association
Property owned by the Community Association, consisting of a three (3) foot wide strip of land
(or wider if and to the extent required by the size of the Perimeter Wall and Fence footing) along
the entire length of the property line separating such Lot from the Community Association
Property owned by the Community Association, for the purpose of accommodating the footings
and other structural components of any Perimeter Wall and Fence located on or immediately
adjacent to such property line, including any encroachments thereof onto the Lot; and
(b) An easement for access over such Lots reasonably necessary for
maintaining the Perimeter Walls and Fences and related Improvements.
2.6.9 Utilities. There is hereby reserved to Declarant and the Merchant
Builders, together with the right to grant and transfer the same, easements on, over, under,
through and across the Covered Property for the purpose of constructing, erecting, operating and
maintaining facilities and Improvements, including without limitation, easements for the
installation and maintenance of electric, telephone, cable television, water, gas, sanitary sewer
lines, and drainage facilities, roads, park areas, parkways and walkways as may be shown on any
recorded subdivision or parcel maps of the Covered Property or as are required by the City or
County of San Diego or any other Governmental Agencies.
2.6.10 Community Association Easements. There is hereby reserved to
Declarant, the Community Association and their duly authorized agents and representatives, such
easements over the Covered Property as are necessary to perform the duties and obligations of
the Community Association as are set forth in the Community Governing Documents.
2.6.11 Storm Water Compliance Easements. There is hereby reserved to the
Community Association, the Declarant and the Merchant Builders, the easements necessary to
exercise their rights to enforce an Owner's compliance with any storm water requirements
imposed by any Governmental Agencies as provided in Section 7.2.4 of this Declaration.
2.7 Amendment to Eliminate Easements. This Declaration cannot be amended to
modify or eliminate the easements reserved to Declarant and the Merchant Builder herein
without prior written approval of Declarant and any attempt to do so shall have no effect. Any
attempt to modify or eliminate this Article shall, for so long as Declarant or any Merchant
Builder owns any portion of the Covered Property or Additional Property, also require the prior
written approval of Declarant.
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ARTICLE 3
MEMBERSHIP AND VOTING RIGHTS IN COMMUNITY ASSOCIATION
Each Owner of a Residential Lot is a Member of the Community Association. The
success of the La Costa Greens Community is dependent, in part, upon each Owner's
participation in the activities of the Community Association. Initially, there are different classes
of membership within the La Costa Greens Community. The qualifications for membership for
all Owners, including the Declarant, are described in this Article.
3.1 Ownership of Residential Lots. Ownership of each Residential Lot within the La
Costa Greens Community shall include (a) a membership in the Community Association and
(b) subject to the provisions of this Declaration and any Final Maps and other City Requirements
exclusive or non-exclusive easement or easements appurtenant to such Residential Lot over the
Community Association Property as described in this Declaration and the deed to the Residential
Lot.
3.2 Membership.
3.2.1 Qualifications. Members of the Community Association shall be
(i) Declarant (irrespective of whether Declarant is the Owner of a Residential Lot) , for so long
as Declarant is entitled to either cast a Class C vote pursuant to the Section of this Article entitled
"Class C Membership" or cast votes on behalf of any Merchant Builders, and (ii) each Owner
(including Declarant and any Merchant Builder) of one (1) or more Residential Lots in the La
Costa Greens Community. Ownership of a Residential Lot shall be the sole qualification for an
Owner's membership in the Community Association.
3.2.2 Transfer of Membership. All memberships in the Community Association
held by Owners, other than Declarant, shall be appurtenant to the Residential Lot owned by each
Owner and shall not be transferred, pledged or alienated, in any way, except upon the transfer of
title to the Owner's Residential Lot. Declarant's Class C membership may not be transferred
except to a successor to Declarant's rights to all or a portion of the Additional Property. Transfer
of Declarant's Class C membership shall be evidenced by the recordation in the Office of the
County Recorder of San Diego County of an Assignment of Declarant's Rights. Any attempt to
make a prohibited membership transfer shall be void and will not be reflected on the books of the
Community Association.
3.2.3 Assignment of Right of Use. A Member shall have the right to assign, in
accordance with the Community Bylaws, an Owner's rights of use and enjoyment to the
Community Association Property to a lessee or tenant of an Owner's Residential Lot; provided,
however, that such Member shall not also be entitled to the use and enjoyment of the recreational
facilities, if any, located on the Community Association Property during the term of the
assignment. The assigning Member shall remain liable for all charges and assessments
attributable to the Owner's Residential Lot. A Member who has sold his or her Residential Lot
to a contract purchaser under an agreement to purchase shall be entitled to assign to the contract
purchaser his or her membership rights in the Community Association. Such assignment shall be
in writing and shall be delivered to the Community Board before such contract purchaser may
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vote. However, the contract seller shall remain liable for all charges and assessments attributable
to his or her Residential Lot until fee title to the Residential Lot is transferred.
3.2.4 Transfer of Membership Upon Sale. If the Owner of any Residential Lot
fails or refuses to transfer the membership registered in his or her name to the purchaser of such
Residential Lot upon transfer of fee title thereto, the Community Board shall have the right to
record the transfer upon the books of the Community Association. The Community Association
will levy a transfer fee against new Owners in the amount of the actual costs incurred by the
Community Association to change its records and their Residential Lots in order to reimburse the
Community Association for the costs of transferring the memberships to the new Owners on the
records of the Community Association.
3.3 Classes of Voting Membership. The Community Association shall have three (3)
classes of voting membership which are described below.
3.3.1 Class A Membership. Class A Members shall originally be all Owners of
Residential Lots with the exception of Declarant and the Merchant Builders, for so long as there
exists a Class B membership. Upon termination of the Class B membership, Declarant and
Merchant Builders shall be Class A Members for so long as they own Residential Lots subject to
this Declaration. Each Owner will be entitled to cast one (1) vote for each Residential Lot.
3.3.2 Class B Membership. The Class B Member shall be the Declarant who
shall be entitled to three (3) votes for each Residential Lot owned by Declarant and Merchant
Builders in a Phase for which assessments have commenced. Declarant shall cast all votes on
behalf of Declarant and any Merchant Builders who have assigned their rights to Declarant. The
Class B membership shall cease and be converted to Class A membership on the happening of
any of the following events, whichever occurs earliest:
(a) When six hundred forty-four (644) Residential Lots representing
seventy-five percent (75%) of the Residences permitted to be developed by the City for the La
Costa Greens Community have been conveyed to Class A Members;
(b) On the fifth anniversary following the first close of escrow within
a Phase covered by the most recently issued Public Report;
(c) On the twentieth anniversary of the first conveyance of a
Residential Lot to a Class A Member in the La Costa Greens Community under authority of a
Public Report.
3.3.3 Class C Membership. The Class C Member shall be Declarant (whether
or not Declarant is an Owner). The Class C membership shall not be considered a part of the
Voting Power of the Community Association and Declarant shall not be entitled to exercise any
Class C votes except for the purpose of electing a majority of the members of the Community
Board pursuant to the provisions set forth below. The Class C Member shall be entitled to solely
elect a majority of the members of the Community Board until the date which is the earlier to
occur of:
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(a) When six hundred forty-four (644) Residential Lots which
represents seventy-five percent (75%) of the Residences permitted to be developed by the City
for the La Costa Greens Community have been conveyed to Class A Members;
(b) On the fifth anniversary following the first close of escrow within
a Phase covered by the most recently issued Public Report; or
(c) On the twentieth (20th) anniversary of the first conveyance of a
Residential Lot to a Class A Member in the La Costa Greens Community.
3.4 Declarant's Right to Select Director. In any election of Directors after the Class
C membership has been terminated, so long as Declarant owns any of the Annexable Property or
a Merchant Builder owns any of the Covered Property, the Community Board shall adopt special
procedures to ensure that at least one (1) Community Director is selected by Declarant. A
representative to the Community Board selected by the Declarant pursuant to the provisions of
this Section may be removed prior to the expiration of his or her term of office only with the
consent of Declarant.
3.5 Continuing Approval of Declarant. Notwithstanding the foregoing, and without
limiting Declarant's unilateral rights provided elsewhere in this Declaration or the Community
Bylaws, even after the termination of Class "B" membership, and until such time as Owners,
other than Declarant and Merchant Builders own at least seventy-five percent (75%) of the
Residential Lots within the La Costa Greens Community, or until the twentieth (20th)
anniversary of the first Close of Escrow of a Residential Lot, whichever occurs first, the approval
of Declarant shall be required before the Community Association may take any permitted action
with respect to the following:
3.5.1 Reduction in the level of, or change in allocation of responsibility for
(a) maintenance of and repairs to all or part of any Community Association Property subject to
this Declaration, (b) any other maintenance obligations of the Community Association set forth
in this Declaration, and (c) any responsibilities for maintaining circulation within the La Costa
Greens Community set forth in this Declaration;
3.5.2 Conveyance by the Community Association of all or any part of the
Community Association Property;
3.5.3 Alteration in the method of fixing and collecting Assessments or any
increase in Assessments beyond the amounts permitted under Section 5.5 of this Declaration;
3.5.4 Modification, enforcement and review procedures of the Architectural
Committee or any change in the architectural and landscaping design;
3.5.5 The creation of a Special Benefits Area as provided in this Declaration;
3.5.6 Modifications to Improvements on the Community Association Property
or to the level or frequency of maintenance of the Community Association Property;
3.5.7 The obligation to provide Declarant with inspection reports;
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3.5.8 Reduction or modification of any easement or other rights reserved to
Declarant or any Merchant Builders under this Declaration;
3.5.9 Alteration in the method of enforcing the provisions of this Declaration;
and
3.5.10 Amendments to this Declaration or the Community Governing Documents
which would diminish or otherwise affect Declarant's or any Merchant Builder's right of
approval regarding the actions enumerated above.
3.6 Special Benefit Area Approvals. Notwithstanding any other provisions of the
Community Governing Documents, any action expressly for the benefit of or imposing an
obligation only upon a Special Benefit Area or the Owners of Lots within the Special Benefit
Area which requires a vote of the Members, shall require the approval of the prescribed
percentage of the class or classes of Members or the approval of Members of only those Owners
within the Special Benefit Area, except as otherwise provided in Section 5.4.5 of this
Declaration.
3.7 Commencement of Voting Rights. An Owner's right to vote, including Declarant
or a Merchant Builder, shall not vest until Assessments have been levied upon such Owner's
Residential Lot as provided in this Declaration. All voting rights shall be subject to the
restrictions and limitations provided for herein and in the Community Governing Documents.
Notwithstanding the foregoing, Declarant shall have the right to cast any votes assigned to
Declarant by a Merchant Builder.
ARTICLE 4
POWERS AND DUTIES OF THE COMMUNITY ASSOCIATION
The Community Association will govern the La Costa Greens Community and as the
governing body will have certain powers and duties which are described below.
4.1 Powers of Community Association. The Community Association shall have all
the powers of a nonprofit corporation organized under the Nonprofit Mutual Benefit Corporation
Law of California subject only to such limitations on the exercise of such powers as are set forth
in the Community Articles, the Community Bylaws and this Declaration. It shall have the power
to do any lawful thing that may be authorized, required, or permitted to be done by the
Community Association under this Declaration, the Community Articles and the Community
Bylaws, and to do and perform any act that may be necessary or proper for or incidental to, the
exercise of any of the express powers of the Community Association, including, without
limitation, the powers set forth below. If the Community Association as a corporate entity is
dissolved, a non-profit unincorporated association shall forthwith and without further action or
notice be formed to succeed to all of the rights and duties of said Community Association
hereunder. The affairs of such unincorporated association shall be governed by the Community
Bylaws and this Declaration as if they were created for the purpose of governing the affairs of an
unincorporated association.
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4.1.1 Delegation of Powers: Professional Management. The Community
Association acting by and through the Community Board can delegate its powers, duties, and
responsibilities to committees or employees, including a professional managing agent
("Manager"), subject to the requirements of the Section of Article 14 entitled "Professional
Management."
4.1.2 Right of Entry and Enforcement. Except in the case of emergencies in
which case no prior notice need be given, the Community Board or any authorized representative
thereof shall have the right, upon forty-eight (48) hours prior notice and during reasonable hours,
to enter upon any Residential Lot (other than the interior of a Residence) for the purpose of
construction, maintenance or emergency repair. Such persons shall not be deemed guilty of
trespass by reason of such entry. If the cost of such maintenance or repair relate to
Improvements otherwise required to be maintained by the Owner, the costs of such repair shall
be assessed against said Owner as an Enforcement Assessment in accordance with the provisions
of Article 5 hereof.
4.1.3 Easements and Rights of Way. The Community Association, acting by
and through the Community Board, may grant and convey to any third party easements and
licenses for use and rights of way in, on, over or under any Community Association Property
conveyed or otherwise transferred to said Community Association or under its jurisdiction in
accordance with the provisions of this Declaration.
4.1.4 Dedication. The Community Association, acting by and through the
Community Board, may dedicate any of its property to an appropriate public authority for public
use as provided for in this Declaration.
4.1.5 Capital Improvements. The Community Board may, on its own motion or
acting on a petition signed by a majority of the Owners, approve the construction, installation or
acquisition of a particular capital improvement to the Community Association Property or
Common Maintenance Areas, subject to the limitations set forth in Section 4.3.7 of this
Declaration.
4.1.6 Enter Into Maintenance, Subsidy Agreements and/or Use Agreements.
Notwithstanding any other provisions of this Declaration or the Community Bylaws regarding
the term and termination of contracts with Declarant or Merchant Builders for providing services
to the Community Association, Declarant (and any Merchant Builder with the written consent of
Declarant) may enter into one or more written maintenance agreements with the Community
Association under which Declarant (or such Merchant Builder, as the case may be) shall pay all
or any portion of the Common Expenses and perform all or any portion of the Community
Association's maintenance responsibilities in exchange for a temporary suspension of all or a
portion of the Regular Assessments. Each such maintenance agreement shall be for a term and
shall be on such conditions as are approved by the DRE, and may require Owners to reimburse
Declarant or any of such Merchant Builders, through the Community Association, for a portion
of the costs expended in satisfaction of Common Expenses. The Community Association shall
also have the power to enter into agreements for the use of the Community Association Property.
4.1.7 Right of Enforcement and Notice and Hearing.
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(a) Enforcement Actions. The Community Association, in its own
name and on its own behalf, or on behalf of any Owner who consents, shall have the power but
not the duty to commence and maintain actions for damages or to restrain and enjoin any actual
or threatened breach of any provision of the Community Governing Documents or any
resolutions of the Community Board, and to enforce by mandatory injunction, or otherwise, all
of these provisions. In addition, the Community Association can temporarily suspend the
membership rights and privileges and/or can assess monetary penalties against any Owner or
other person entitled to exercise such rights or privileges for any violation of the Community
Governing Documents or Community Board resolutions.
(b) Notice Requirements. Before a decision to impose such a
suspension and/or monetary penalties is reached by the Community Board, at least fifteen (15)
days written notice of suspension or imposition of monetary penalties and the reasons therefor
must be given to the Owner of such suspension or imposition of a penalty or any such longer
period as may be required under California Corporations Code Section 7341, or any successor
statute or law. Additionally, before the Community Board decides to impose a suspension of
privileges and/or impose a monetary penalty, the aggrieved Owner shall be provided with an
opportunity to be heard by the Community Board.
(c) Delegation. The Community Board shall have the right to appoint
a committee to hear any actions brought against an Owner for a violation of the Community
Governing Documents, and to take actions on behalf of the Community Board in connection
with an enforcement action.
4.1.8 Contract for Goods and Services. The Community Association shall have
the power to contract for goods and services for the benefit of the Community Association
Property, Common Maintenance Areas, Special Benefit Areas and other portion of the La Costa
Greens Community necessary for the Community Association to perform its duties and
obligations hereunder including, without limitation, legal and accounting services necessary or
proper in operating the Community Association Property, Common Maintenance Areas and
Special Benefit Areas or in enforcing the Community Governing Documents, and performing
any of the other Community Association duties or rights, subject to the limitations set forth
below.
4.1.9 Litigation. The Community Association shall have the power, but not the
duty, to initiate, defend, settle or intervene in mediation, arbitration, judicial or administrative
proceedings on behalf of the Community Association in matters pertaining to (a) the application
or enforcement of the Community Governing Documents and (b) damage to the Community
Association Property, Common Maintenance Areas and Special Benefit Areas. Any recovery by
the Community Association with respect to any damage to or defect in the Community
Association Property and Common Maintenance Areas shall be utilized solely for the purpose of
paying for the costs of obtaining the recovery and for correcting such Community Association
Property and Common Maintenance Areas damage or defect and such proceeds shall be applied
(a) first, for the purpose of repairing such defects, (b) second, for replacing Reserve Funds
previously utilized by the Community Association to cause such repairs and (c) then to the costs
of such litigation. The Community Association and not the individual Members shall have the
power to pursue any claims or other actions using the non-adversarial proceedings for
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construction defects to the Community Association Property or the Common Maintenance Area
pursuant to Civil Code Section 895 et. seq. and any successor statute or laws.
4.1.10 DRE. The Community Association shall have the power to enter into
contracts approved by the DRE.
4.1.11 Telecommunications Contract. Notwithstanding anything in this
Declaration to the contrary, the Community Association shall have the power to enter into,
accept an assignment of, or otherwise cause the Community Association to comply with the
terms and provisions of an exclusive telecommunications services contract
("Telecommunications Contract") with a telecommunications service provider ("Service
Provider"), pursuant to which the Service Provider shall serve as the exclusive provider of
Telecommunications Services to each Residential Lot in the Covered Property. The Community
Board shall only enter into, accept an assignment of, or otherwise cause the Community
Association to comply with the terms and provisions of the Telecommunications Contract if the
Community Board determines, in its prudent business judgment, that such action is in the best
interests of the Community Association. Although not exhaustive, a contract that satisfies the
following requirements shall be deemed to be within the best interests of the Community
Association.
(a) Initial Term and Extensions. The initial term of the
Telecommunications Contract does not exceed two (2) years, and, if the Telecommunications
Contract provides for automatic extensions, the length of each such extension does not exceed
five (5) years;
(b) Termination. The Telecommunications Contract provides that:
(i) at least six (6) months prior to the expiration of either the initial or any extended term of the
Telecommunications Contract, the entire membership of the Community Association may,
without cause, by a sixty percent (60%) vote, prevent any automatic extension that the
Telecommunications Contract may provide for, and thereby allow the Telecommunications
Contract to expire, and (ii) at any time, the Community Board may terminate the
Telecommunications Contract if, in the sole discretion of the Community Board, the Service
Provider fails to provide quality, state-of-the-art Telecommunications Service or the
Telecommunications Contract becomes economically obsolete;
(c) Fees. The monthly fee charged to the Community Association by
the Service Provider for the provision of the Telecommunications Services to all of the
Residential Lots represents a discount from the comparable retail fees charged by the Service
Provider in the general geographic area in which the Covered Property is located, and, if so, the
amount of such discount;
(d) Installation of Telecommunications Facilities. The Service
Provider is solely responsible for the installation, and the cost thereof, of all of the
Telecommunications Facilities necessary to provide Telecommunications Services to each
Residential Lot; and
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(e) Removal of Telecommunications Facilities. The Service Provider
has the right to remove the Telecommunications Facilities upon expiration or termination of the
Telecommunications Contract.
4.1.12 Claims and Actions. Subject to the provisions of this Declaration, the
Community Association shall have the power, but not the duty, to initiate, defend, settle or
intervene in mediation, arbitration, judicial or administrative proceedings on behalf of the
Community Association in matters pertaining to (a) the application or enforcement of this
Declaration and (b) damage to the Community Association Property or the Common
Maintenance Area; provided, however, that from and after the date which is five (5) years after
the date of the first conveyance of a Residential Lot to an Owner under a Public Report within
the Additional Property ("Relinquishment Date"), no representative of Declarant on the Board
shall vote on the initiation of any claim under California Civil Code Section 895 et. seq.
Notwithstanding the foregoing, Declarant may relinquish such control at an earlier date, in the
sole discretion of Declarant. Declarant shall have no control over the Community Association's
ability to decide whether to initiate a claim under such statutory provisions and in the event of
such a vote, the affirmative vote of the two non-Declarant representatives on the Community
Board shall be binding so long as a quorum of the Community Board is present at any meeting
where such vote is taken. The Community Association and not the individual members shall
have the power to pursue any claims or other actions using the non-adversarial procedures for
construction defects in the Community Association Property or the Common Maintenance Area
pursuant to Civil Code Section 895 et. seq., or any successor statutes or laws.
4.2 Duties of the Community Association. In addition to the powers delegated to it
by its Community Articles or the Community Bylaws, and without limiting their generality, the
Community Association, acting by and through the Community Board, has the obligation to
conduct all business affairs of common interest to all Owners, including without limitation, each
of the duties set forth below.
4.2.1 Taxes and Assessments. The Community Association shall have the duty
to pay all real and personal property taxes and assessments and all other taxes levied against the
Community Association Property, personal property owned by the Community Association or
against the Community Association. Such taxes and assessments may be contested by the
Community Association; provided, that they are paid or that a bond insuring payment is posted
before the sale or the disposition of any property to satisfy the payment of such taxes.
4.2.2 Maintenance of La Costa Greens Community. The Community
Association shall have the duty to accept fee simple and easement title to and to maintain and
repair the Community Association Property, Common Maintenance Area and any other portions
of the La Costa Greens Community required to be maintained by the Community Association
pursuant to the provisions of this Declaration or any Supplementary Declaration in a good order
and repair, and subject to the provisions of this Declaration and the City Requirements. All of
such obligations shall be discharged when and in such manner as the Community Board
determines in its judgment to be appropriate, provided that the Community Association shall
conform with the requirements of any agreements entered into between Declarant or any
Merchant Builder and a Governmental Agency pertaining to the Community Association
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Property and Common Maintenance Area, including without limitation, any agreements
providing for maintenance of Public Use Areas by the Community Association.
4.2.3 Insurance. The Community Association shall have the duty to obtain,
from reputable insurance companies and maintain the insurance described in the Article hereof
entitled "Insurance and Condemnation."
4.2.4 Audit. The Community Association shall have the power and duty to
permit any Owner, who may be accompanied by an accountant or other consultant, at said
Owner's sole expense to audit or inspect the Community Association's books and records;
provided that such audit or inspections are made during normal business hours and without
unnecessary interference with the operations of the manager or the Community Association.
4.2.5 Community Assessments. The Community Association shall establish,
determine, levy, collect and enforce all Assessments and cause to be prepared all budgets and
financial statements and establish and maintain a working capital and contingency fund as
required by the Community Governing Documents.
4.2.6 Utility Services. The Community Association shall obtain utility services
necessary or desirable, for the benefit of the Community Association Property and Common
Maintenance Areas including, but not limited to, water, gas, electricity, telephone, refuse
collection, sewage disposal and other services necessary to perform its other obligations under
this Declaration.
4.2.7 Architectural Control. The Community Association shall have the duty to
promulgate architectural standards and procedures as set forth in the Community Design
Standards and appoint the Architectural Committee in connection therewith in accordance with
the provisions of Article 6 of this Declaration.
4.2.8 Community Handbook. The Community Association shall adopt, amend,
and repeal such rules and regulations as it deems reasonable prior to the close of escrow of the
first Residential Lot to an Owner under a Public Report. The Community Handbook shall
govern such matters in furtherance of the purposes of the Community Association, including,
without limitation, the use of the Community Association Property and Common Maintenance
Area; provided, however, that the Community Handbook may not discriminate (except to the
extent the Community Handbook addresses special restrictions or procedures which are imposed
on Owners within a Special Benefit Area). In the event of any conflict between the Community
Handbook and any other provisions of the other Community Governing Documents, the
provisions of the Community Handbook shall be superseded by the provisions of the other
Community Governing Documents to the extent of any such inconsistency. Notwithstanding the
foregoing if any rule set forth in the Community Handbook is deemed to be an Operating Rule,
the Association shall comply with the requirements and procedures set forth in Civil Code
Section 1357.100 et seq.
4.2.9 Special Benefit Areas Administration. The Community Association shall
administer and perform any obligations associated with any Special Benefit Areas created
pursuant to this Declaration.
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4.2.10 Maintenance Manual. The Community Association shall maintain at the
offices of the Community Association a copy of the Maintenance Manual provided by the
Declarant to the Community Association and shall have the duty to comply with all requirements
and follow all maintenance schedules set forth in the Association's Maintenance Manual.
4.2.11 Members' Approval of Certain Actions. In the event that any claim or
other actions brought by the Association or other applicable law under California Civil Code
Section 895 et. seq., and any successor statutes or laws, or other applicable laws, involving
allegations of construction defects relating to the Community Association Property or the
Common Maintenance Area is not resolved pursuant to the non-adversarial procedures set forth
in California Civil Code Sections 910 through 938, and any successor statutes or laws, the
Community Association shall not initiate a further action or procedure against Declarant under
Section 154 or otherwise without first obtaining the consent of the Owners other than Declarant,
constituting a quorum of more than fifty percent (50%) of the Owners of the Community
Association casting a majority of the votes at a meeting or election of the Community
Association conducted in accordance with the provisions of California Corporations Code
Sections 7510 et. seq. and 7613 and any successor statutes or laws.
4.2.12 Use of Proceeds to Repair. If the Community Association receives, on its
own behalf or for the benefit of the Owners, any proceeds as a result of any construction defect
or other claims brought by the Community Association relating to repair or maintenance of the
Community Association Property or the Common Maintenance Areas, then the Community
Association shall apply such proceeds first for the purpose of making the repairs or replacing
reserve funds previously utilized by the Community Association to cause such repairs and then
to the costs of such litigation. Any excess proceeds shall be applied as determined by the
Community Board, subject to any requirements established by the non-profit mutual benefit laws
of the State of California and any other applicable laws.
4.3 Prohibited Activities. Notwithstanding any other provisions of this Declaration or
the other Community Governing Documents, the Community Association is expressly prohibited
from undertaking or performing any of the following activities, or expending or otherwise
utilizing Community Association funds or resources therefor, and the Community Association
shall be prohibited from undertaking the following activities.
4.3.1 Property Manager. For so long as Declarant's Class C votes are in effect,
the Community Association shall not discontinue the management of the Community
Association by a professional, certified or accredited management company. After Declarant's
Class C votes are no longer in effect the Community Association shall not discontinue the
management of the Community Association by a professional, and certified or accredited
management company without the vote of (a) Declarant, so long as Declarant or any Merchant
Builder owns any Lot within the Covered Property, or Additional Property and (b) a vote of
sixty-six and two thirds (66 2/3rds) of the Voting Power of the Community Association. If the
Community Association votes to discontinue the management of the Community Association by
a certified or accredited professional manager in accordance with the procedures set forth above,
then any replacement manager shall have at least five (5) years experience in the management of
planned communities and shall have earned accreditation or certification from a professional
association management organization such as the Professional Community Association of
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Managers designation from the Community Association Institute. Nothing contained herein
shall limit the Community Association from hiring other employees for the Covered Property.
4.3.2 Offsite Nuisances. The Community Association shall not use any
assessments or expend Community Association funds or resources to abate any annoyance or
nuisance emanating from outside the physical boundaries of Phases in which Assessments have
commenced.
4.3.3 Political Activities or Contributions. The Community Association shall
not engage in any federal, state or local political activities or activities intended to influence a
governmental action affecting areas outside the boundaries of the Covered Property (e.g.,
endorsement or support of (a) legislative or administrative actions by a Governmental Agency
which affect persons or property outside the Covered Property, (b) candidates for elected or
appointed office, and (c) initiatives, recall elections or other ballot proposals). The Community
Association is prohibited from conducting, sponsoring, participating in or expending funds or
resources on any activity, campaign or event, including without limitation any social or political
campaign, event or activity, which does not directly and exclusively pertain to any of the powers
and duties of the Community Association.
4.3.4 Subassociation or Cost Center. For so long as Declarant has the rights
under Sections 3.3.3 and 3.4 of this Declaration, neither the Community Association nor any
Owner nor any Merchant Builder, without the prior written consent of Declarant, shall (a) form
an association (as defined in Section 1351 (a) of the California Civil Code) to manage any portion
of the Covered Property or (b) create a cost Special Benefits Area or other such device to
apportion any Common Expenses of the Community Association against fewer than all of the
Owners and their Lots.
4.3.5 Mortgagee Consents. For so long as Declarant has the voting rights under
Sections 3.3.3 and 3.4 of this Declaration, the Community Association may not, without the
prior written consent of Declarant, take any action listed in Section 14.4 of the Declaration for
which the consent of Owners or First Mortgagees is required.
4.3.6 Reserved Rights of Declarant and Merchant Builders. For so long as
Declarant or any Merchant Builder is entitled to exercise any right, or avail itself of any
exemption, in Article 12 or elsewhere in this Declaration or the Community Governing
Documents, neither the Community Association, nor the Community Board, nor any Owner shall
take any action which is inconsistent with, or which would abrogate, any such right or
exemption.
4.3.7 Limitations on Authority of Community Board. The Community Board
shall not take any of the actions listed below except with the vote or written consent of: (a) a
majority of the Members of each of Class A and Class B during the time the two-class voting
structure set forth in Article 3 of this Declaration is in effect; or (b) except with the vote at a
meeting of the Community Association or by written ballot without a meeting pursuant to
Corporations Code Section 7513 of at least a majority of the Members of the Community
Association including at least a majority of Community Association Members other than
Declarant after conversion to a single Class A voting membership.
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(a) Limit on Capital Improvements. The Community Board shall not,
without obtaining the consent of the Members as set forth above, incur aggregate expenditures
for capital improvements to the Community Association Property or Common Maintenance
Areas in any fiscal year in excess of five percent (5%) of the budgeted gross expenses of the
Community Association for that Fiscal Year.
(b) Limit on Sales of Community Association Property. The
Community Board shall not, without obtaining the consent of the Members as set forth above,
sell during any fiscal year property of the Community Association having an aggregate fair
market value greater than five percent (5%) of the budgeted gross expenses of the Community
Association for that Fiscal Year.
(c) Limit on Third Person Contracts. The Community Board shall not,
without obtaining the consent of the Members as set forth above, enter into a contract with a
third person (other than a Governmental Agency) wherein the third person will furnish goods or
services for the Community Association Property or the Common Maintenance Areas to the
Community Association for a term longer than one year with the following exceptions:
(i) A contract with a public utility company if the rates
charged for the materials or services are regulated by the Public Utilities Commission; provided,
however, that the term of the contract shall not exceed the shortest term for which the supplier
will contract at the regulated rate;
(ii) A prepaid casualty and/or liability insurance policy not to
exceed three (3) years duration; provided that the policy permits short-rate cancellation by the
insured;
(iii) Except as otherwise provided in this Declaration, a contract
for a term not to exceed three (3) years that is terminable by the Community Association after no
longer than one year without cause, penalty or other obligations upon ninety (90) days written
notice of termination to the other party;
(iv) A Telecommunications Contract under Section 4.1.12 of
this Declaration; and
(v) Any contract approved by the DRE.
4.3.8 Nonliability.
(a) General Rule. No Person is liable to any other Person (other than
the Community Association or a party claiming in the name of the Community Association) for
injuries or damage resulting from such Person's Official Acts, except to the extent that such
injuries or damage result from the Person's willful or malicious misconduct. No Person is liable
to the Community Association (or to any party claiming in the name of the Community
Association) for injuries or damage resulting from such Person's Official Acts, except to the
extent that such injuries or damage result from such Person's negligence or willful or malicious
misconduct. The Community Association is not liable for damage to property in the Community
Property unless caused by the negligence of the Community Association, the Community Board,
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the Community Association's officers, or the manager or the manager's staff of the Community
Association.
(b) Nonliability of Volunteer Community Board Members and
Officers. A volunteer Community Board member or volunteer Community Association officer
shall not be personally liable to any Person who suffers injury, including bodily injury, emotional
distress, wrongful death or property damage or loss as a result of the tortious act or omission of
the volunteer officer or Community Board member if all applicable conditions specified in
Section 1365.7 of the California Civil Code are met.
4.3.9 Scope of Powers and Standard of Care.
(a) General Scope of Powers. Unless a duty to act is imposed on the
Community Board, the Architectural Committee or other committees or representatives of the
Community Association by this Declaration or law, the Community Board, the Architectural
Review Committee and the committees have the right to decide to act or not act. Any decision to
not act is not a waiver of the right to act in the future.
(b) Business Affairs. This Section applies to Community Board
member actions in connection with management, personnel, maintenance and operations,
insurance, contracts and finances, and Architectural Review Committee member actions. Each
Community Board member shall perform his or her duties in good faith, in a manner the
Community Board member believes to be in the best interests of the Community Association and
with such care, including reasonable inquiry, as an ordinarily prudent person in a like position
would use under similar circumstances. When performing his or her duties, a Community Board
member is entitled to rely on information, opinions, reports or statements, including financial
data prepared or presented by:
(i) One or more officers or employees of the Community
Association whom the Community Board member believes to be reliable and competent in the
matters presented;
(ii) Counsel, independent accountants or other Persons as to
matters which the Community Board member believes to be within such Person's professional or
expert competence; or
(iii) A committee of the Community Board upon which the
Community Board member does not serve, as to matters under its designated authority, which
committee the Community Board member believes to merit confidence, so long as the
Community Board member acts in good faith, after reasonable inquiry when the need is
indicated by the circumstances and without knowledge that would cause such reliance to be
unwarranted.
This Section 4.3.9 is intended to be a restatement of the business judgment rule
established in applicable law. All modifications and interpretations of the business judgment rule
applicable to the Community Association, shall be interpreted to modify and interpret this
Section 4.3.9.
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(c) Community Association Governance. This Section applies to
Community Board actions and Architectural Review Committee decisions in connection with
interpretation and enforcement of the Declaration, architectural and landscaping control,
regulation of uses within the Covered Property, rule making and oversight of committees.
Actions taken or decisions made in connection with these matters shall be reasonable, fair and
nondiscriminatory.
ARTICLE 5
ASSESSMENTS
To fund the activities of the Community Association, the Community Association will be
collecting various types of assessments. These assessments fund the services which are being
provided by the Community Association. By paying assessments which fund the programs and
services of the Community Association, all of the Owners within the La Costa Greens
Community are benefitted. In addition to the overall assessments which are levied against all
Owners, some Owners whose Lots are situated in Special Benefit Areas will pay an additional
payment for the services provided to the Special Benefit Areas by the Community Association.
5.1 Creation of Lien and Personal Obligation for Assessments. Declarant and each
Merchant Builder, for each Residential Lot owned, covenants, and each Owner of a Residential
Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is
deemed to covenant to pay to the Community Association all assessments levied pursuant to the
provisions of this Declaration. All assessments levied herein, together with any Additional
Charges, shall (except as otherwise provided in Section 5.4.4 below) be a charge on the land and
shall be a continuing lien upon the Residential Lot against which each such assessment is made.
The lien shall be effective upon recordation of a notice of delinquent assessment. Each
assessment, together with interest, late charges, costs and reasonable attorney's fees, shall also be
the personal obligation of the person who was the Owner of the Residential Lot at the time the
assessment is due and shall bind his or her heirs, devisees, personal representatives and assigns.
The personal obligation for delinquent assessments shall not pass to successors in title of a
Residential Lot unless expressly assumed by them; however, the delinquent assessment shall
remain a lien on the Residential Lot. No such assumption of personal liability by a successive
Owner (including a contract purchaser under an installment land contract) shall relieve any
Owner from personal liability for delinquent assessments. If more than one person or entity was
the Owner of a Residential Lot, the personal obligation to pay such assessment or installment
respecting such Residential Lot shall be both joint and several.
5.2 Maintenance Funds of Community Association. The Community Board shall
establish no fewer than two (2) separate association maintenance funds accounts ("Community
Association Maintenance Funds") into which shall be deposited all monies paid to the
Community Association and from which disbursements shall be made, as provided herein, in the
Community Association's performance of functions under this Declaration. The Community
Association Maintenance Funds may be established as trust accounts at a banking or savings
institution and shall include: (a) an operating fund for current expenses ("Operating Fund"),
(b) an adequate Reserve Fund ("Reserve Fund") for the deposit of Reserves attributable to
Improvements within the Community Association Property or Common Maintenance Areas
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(which would not reasonably be expected to recur on an annual or more frequent basis), and for
payment of deductible amounts for insurance policies which the Community Association obtains
as provided in the Article entitled "Insurance and Condemnation", and (c) any other funds which
the Community Board may establish to the extent necessary under the Declaration's provisions.
Nothing contained herein precludes the establishment of additional Community Association
Maintenance Funds by the Community Association, so long as the amounts assessed, deposited
into, and disbursed from any such Fund are designated for purposes authorized by this
Declaration.
5.3 Purpose of Community Assessments. The Community Assessments levied by the
Community Association shall be used exclusively for the purposes and function of the
Community Association set forth in this Declaration and Community Governing Documents.
Regular Assessments shall be used to satisfy Common Expenses as provided herein and in the
Community Bylaws. If the Community Association decides to use or transfer Reserve Funds (as
defined below) to pay for litigation, the Community Association must notify its Members of the
decision at the next available mailing. Such notice shall provide an explanation of why the
litigation is being initiated or defended, why operating funds cannot be used, how and when the
Reserve Funds will be replaced, and a proposed budget for the litigation. The notice must state
that the Members have a right to review an accounting for the litigation as provided in
Section 1365.5 of the California Civil Code or any successor statute or law, which will be
available at the Community Association's office. The accounting shall be updated monthly.
5.4 Nature of Assessments. The Community Board shall establish the following
Assessments, each of which shall be used only for the purposes specified in this Article.
5.4.1 Regular Assessments. Regular Assessments shall be an annual assessment
for Common Expenses fixed and levied by the Community Board based upon the estimated costs
of operation of the Community Association in accordance with the budgets prepared pursuant to
the provisions of the Community Bylaws, and the accomplishment of its purposes, performance
of its duties and the exercise of its powers that benefit the entire Covered Property. The amount
and time of payment of Regular Assessments shall be determined as provided for below. Until
January 1st of the year immediately following the conveyance of the first Lot to an Owner, the
annual maximum Regular Assessment shall not exceed the maximum amount permitted for the
Community Association under any Public Report issued for such period by the Department of
Real Estate for any Lot then subject to this Declaration. Increases in Regular Assessments shall
be subject to the limitations set forth in the Section of this Article entitled "Limitation on
Assessments".
5.4.2 Special Assessments. Special Assessments may be levied at any time
during any fiscal year if the Regular Assessments prove inadequate for any reason, including
nonpayment of any Owner's share thereof. Special Assessments shall be allocated in the same
manner as Regular Assessments. Increases in Special Assessments shall be subject to the
limitations set forth in the Section of this Article entitled "Limitation on Assessments."
5.4.3 Capital Improvement Assessments. In addition to the Regular
Assessments, the Community Association may levy, in any fiscal year, a Capital Improvement
Assessment applicable to that year only, for the purpose of defraying, in whole or in part, the
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cost of any construction or replacement (other than due to destruction) of a described Capital
Improvement upon the Community Association Property to the extent the same is not covered by
the provisions affecting Reconstruction Assessments in the Article hereof entitled "Destruction
of Improvements," including the necessary fixtures and personal property related thereto.
Capital Improvement Assessments shall be assessed and shall be allocated to Owners in the same
manner as Regular Assessments. All amounts collected as Capital Improvement Assessments
may only be used for Capital Improvements and shall be deposited by the Community Board in a
separate bank account to be held in trust for such purposes. Said funds shall not be commingled
with any other funds of the Community Association and shall be deemed a contribution to the
capital account of the Community Association by the Members. Increases in Capital
Improvements Assessments shall be subject to the limitations set forth in Section 5.5 below.
5.4.4 Enforcement Assessments. The Community Association may levy an
Enforcement Assessment against any Owner who causes damage to the Community Association
Property and/or Common Maintenance Areas or for bringing an Owner or such Owner's Lot into
compliance with the provisions of the Community Governing Documents or any other charge
designated an Enforcement Assessment in the Community Governing Documents, together with
attorneys' fees, interest and other charges related thereto as provided in this Declaration. If the
Community Association undertakes to provide materials or services which benefit individual
Owners, then such Owners in accepting such materials or services agree that the costs thereof
shall be an Enforcement Assessment. The Community Board shall have the authority to adopt a
reasonable schedule of Enforcement Assessments for any violation of the Community Governing
Documents. If, after Notice and Hearing as required by the Community Governing Documents,
the Owner fails to cure or continues such violation, the Community Association may impose an
additional fine each time the violation is repeated, or not corrected as provided for herein and
may assess such Owner and enforce the Enforcement Assessment as herein provided for
nonpayment of a Community Assessment. As specified above, a hearing committee may be
established by the Community Board to administer the foregoing. Whenever the Community
Association performs any service or accomplishes any item of repair or maintenance which is the
duty of a Condominium Project Association or an Owner to accomplish, but which has not been
accomplished by the Condominium Project Association or Owner, or whenever the Community
Association determines to preempt the performance of a Condominium Project Association or a
specific Owner of a given act of maintenance or repair, the Community Association shall
specifically charge the cost thereof, together with any financing costs and administrative costs
incurred by the Community Association, to the Owner for whom such work was done, or the
Condominium Project for which such work was done, as the case may be, and shall include such
additional cost as an Enforcement Assessment for such Owners or Condominium Project
Association.
5.4.5 Formation of Special Benefit Areas. The Declarant, prior to the
conveyance of a Lot by a Merchant Builder to an Owner under a Public Report, may establish a
Special Benefit Area or expand an existing Special Benefit Area by designating the Lots to be
included within such Special Benefit Area in a Supplementary Declaration. Subject to the
provisions of Sections 3.6 of this Declaration, the Community Association may also establish or
expand additional Special Benefit Areas with respect to portions of the Covered Property which
directly receive a special benefit from the Community Association for special services provided
to such Owners. If any Special Benefit Area is formed or expanded after the Lots to be included
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within such Special Benefit Area have been conveyed to an Owner under authority of a Public
Report, then the approval of a majority of the Owners of the Lots proposed to be included in the
Special Benefit Area shall be required. Upon its approval, the Special Benefit Area and Special
Benefit Maintenance Area shall be described in a Supplementary Declaration recorded by the
Declarant or Community Association, as applicable, as provided in Section 12.4 of this
Declaration. From and after the formation of such a Special Benefit Area, it shall be
administered by the Community Association in the same manner as all other Special Benefit
Areas provided for in this Declaration.
5.4.6 Special Services Assessment. The Community Board may establish a
Special Services Assessment to reimburse the Community Association for Special Services
rendered by the Community Association to an Owner. In the event that the Community
Association obtains income directly related to an item which has been assessed as a Special
Services Assessment, such income shall be allocated so as to reduce or offset such Special
Services Assessment.
5.4.7 Reconstruction Assessments. Reconstruction Assessments may be levied
by the Community Board under the conditions and in the manner specified in the Article hereof
entitled "Destruction of Improvements."
5.5 Limitation on Assessments. The Community Board shall levy Regular
Assessments and Special Assessments sufficient to perform the obligations of the Community
Association as provided in the Declaration and Community Bylaws; provided, however, except
for assessment increases necessary for emergency situations, and except for Special Assessments
imposed to restore funds to the Community Association pursuant to California Civil Code
§ 1365.5(c) and except as provided in this Section: (a) the Community Board may not increase
the Regular Assessments for any fiscal year unless the Community Board has complied with the
provisions of California Civil Code § 1365.5 (preparation and distribution of the budget), and
(b) the Community Board may not impose a Regular Assessment that is more than twenty
percent (20%) greater than the Regular Assessment for the Community Association's preceding
fiscal year (whether such percentage is calculated against the General Assessment Component or
Special Benefit Area Assessment Components as described in Section 5.7 below or the
aggregate of both such amounts) but specifically excluding the Technology Assessment, if any,
nor may the Community Board impose Special Assessments which in the aggregate exceed five
percent (5%) of the budgeted gross expenses of the Community Association for the fiscal year
(whether such percentage is calculated against the Common Expenses of the Community
Association or, if the Special Assessment is to be levied only against a Special Benefit Area, to
the Common Expenses of a Special Benefit Area), without the approval of Owners casting a
majority of the votes of the Members affected thereby at a meeting or election of the Community
Association conducted in accordance with Chapters (commencing with §7510) of Part 3 of
Division 2 of Title I of the California Corporations Code and §7613 of the California
Corporations Code at which a quorum was present or participated. Notwithstanding the
foregoing, if any such Regular Assessments or Special Assessments include a Special Benefit
Area Assessment Component as described in Section 5.7 below, and the amount of such
increases of Regular Assessments or levy of Special Assessments would not otherwise require
the approval of Owners subject only to the General Assessment Component, only the approval of
Owners within the applicable Special Benefit Area shall be required for increases to the Regular
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Assessments or the levy of Special Assessments which only result in the increases described
above to the total Regular Assessments or the levy of Special Assessments applicable to the
Special Benefit Area except to the extent as may otherwise be required under Section 1366 of the
California Civil Code.
5.5.1 Quorum. For purposes of this Section, "quorum" means more than fifty
percent (50%) of the Owners.
5.5.2 Emergency Situation. For purposes of this Section, an emergency
situation is any one of the following:
(a) An extraordinary expense required by an order of a court;
(b) An extraordinary expense necessary to repair or maintain the La
Costa Greens Community or any part of it for which the Community Association is responsible
where a threat to personal safety in the Community Association is discovered;
(c) An extraordinary expense necessary to repair or maintain the La
Costa Greens Community or any part of it for which the Community Association is responsible
that could not have been reasonably foreseen by the Community Board in preparing and
distributing the Budget required under the Declaration and Community Bylaws. However, prior
to the imposition or collection of an assessment under this Subsection, the Community 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. Any increases authorized under this Section shall not be imposed unless the
Community Board has complied with the budgetary requirements set forth in the Community
Bylaws with respect to the Fiscal Year for which an assessment is being levied;
(d) An extraordinary expense in making the first payment of the
earthquake insurance surcharge pursuant to § 5003 of the California Insurance Code.
The term "Regular Assessment for the Community Association's preceding Fiscal Year"
as used in this Section 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 or any Merchant Builder.
Anything in this Section to the contrary notwithstanding, the limitation on Regular Assessments
and Special Assessments shall comply with the laws of the State of California at the time the
Regular Assessment or Special Assessment is levied by the Community Association.
5.5.3 Notice to Owners. The Community Association shall provide notice by
first class mail to the Owners of any increase in the Regular Assessments or Special Assessments
of the Community Association, not less than thirty (30) days and not more than sixty (60) days
prior to the increased assessment becoming due and payable.
5.6 Changes to Budget. Declarant has submitted to the DRE a budget for the La
Costa Greens Community, which may be modified from time to time and approved by the DRE
("DRE Approved Budget"). Subject to Section 1366(b) of the California Civil Code or any
successor statute thereof, in the event that the amount of the Regular Assessments is greater than
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the amounts permitted to be increased by this Declaration without a vote of the Voting Power
pursuant to the requirements set forth in Section 5.5 above, then the Community Board, on
behalf of the Community Association and without the requirement of prior notice to the
Members or a vote of the Members, shall be entitled to increase the maximum Regular
Assessment at that time to an amount which has been reviewed by the DRE pursuant to the DRE
Approved Budget.
5.6.1 Maintenance and Subsidy Agreements. Notwithstanding any other
provisions of this Declaration or the Community Bylaws regarding the term and termination of
contracts with Declarant or Merchant Builders for providing services to the Community
Association, Declarant (and any Merchant Builder with the written consent of Declarant) may
enter into one or more written maintenance or subsidy agreements with the Community
Association under which Declarant (or such Merchant Builder, as the case may be) shall pay all
or any portion of the Common Expenses and/or perform all or any portion of the Community
Association's maintenance responsibilities in exchange for a temporary suspension of all or a
portion of the Regular Assessments. Each such maintenance or subsidy agreement shall be for a
term and shall be on such conditions as are approved by the DRE, and may require Owners to
reimburse Declarant or any of such Merchant Builders, through the Community Association, for
a portion of the costs expended by Declarant in satisfaction of Common Expenses.
5.7 Allocation of Community Assessments to Lots. The Community Assessments
shall be allocated to each Residential Lot as to which Community Assessments have commenced
as set forth below.
5.7.1 General Assessment Component. The Regular Assessments exclusive of
the Common Expenses included within the Special Benefit Area Budget ("General Assessment
Component") shall be allocated among the Owners and their respective Residential Lots at a
uniform rate among all of the Residential Lots subject to such assessment. Special Assessments,
Reconstruction Assessments and Capital Improvement Assessments shall be allocated in the
same manner as Regular Assessments. Enforcement Assessments and Special Services
Assessments shall be levied directly to the individual Owners in a manner consistent with the
provisions of Article 5 of this Declaration, respectively.
5.7.2 Special Benefit Area Assessment Component. The portion of the Regular
Assessments budgeted exclusively to any particular Special Benefit Area, if any, in the Special
Benefit Area Budget ("Special Benefit Area Assessment Component") shall be assessed solely to
the Owners of Residential Lots within the applicable Special Benefit Area, at a uniform rate
among all the Residential Lots within the Special Benefit Area subject to such assessment, unless
a different allocation is set forth in the Special Benefit Area Budget.
5.7.3 Other Community Assessments. Special Assessments, Reconstruction
Assessments and Capital Improvement Assessments shall be allocated in the same manner as
Regular Assessments. Enforcement Assessments and Special Services Assessments shall be
levied directly to the individual Owners in a manner consistent with the provisions of Article 5
of this Declaration, respectively.
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5.8 Date of Commencement of Regular Assessments; Due Dates. The Regular
Assessments provided for herein shall commence as to all Residential Lots in a Phase subject to
this Declaration on the first day of the month following the conveyance of the first Residential
Lot within such Phase to an Owner under authority of a Public Report. As to any Additional
Property which is thereafter annexed into the Covered Property pursuant to a Supplementary
Declaration, the Regular Assessments shall commence as to all Additional Property within such
Phase upon the first day of the first month following the closing of the sale of the first
Residential Lot in such Phase to an Owner under a Public Report or such earlier date as may be
selected by Declarant for the commencement of assessments in such Phase. The first Regular
Assessment shall be adjusted according to the number of months remaining in the calendar year.
In no event shall any sale or leaseback by Declarant of any Residential Lot in the Project being
used as a model home, sales office, design center, construction office or similar purpose
(collectively, a "Model Home") and which are not occupied by a homeowner cause the
commencement of assessments in a Phase for which assessments have not otherwise
commenced.
5.9 Annual Levy of Regular Assessments. Any Regular Assessments in excess of the
amount permitted under the DRE Approved Budget shall be fixed by the Community Board
against each Lot at least sixty (60) days in advance of each annual Community Assessment
period. Written notice of such Regular Assessment shall be sent to every Owner subject thereto
at least forty-five (45) days prior to its effective date. Unless expressly provided otherwise by
the Community Board, each Regular Assessment shall be payable in advance, in equal monthly
installments or such installments as may be established by the Community Board, the first of
which installments shall be due and payable on the first day of the first month of each fiscal year.
5.10 Notice and Assessment Installment Due Dates. A single ten (10) day prior written
notice of each Special Assessment, Capital Improvement Assessment or any other Assessment
(other than Regular Assessments and Special Services Assessments) shall be given to each
Owner. The Community Association shall give an initial notice for any Special Services
Assessment and thereafter the Special Services Assessment shall be payable concurrently with
the Regular Assessment. The due dates for the payment of installments normally shall be the
first day of each month unless some other due date is established by the Community Board.
Each installment of Regular Assessments, Special Assessments and Capital Improvement
Assessments and any other Assessments levied hereunder shall become delinquent if not paid
within fifteen (15) days after its due date. There shall accrue with each delinquent installment a
late charge, interest charge to be set by the Community Board and reasonable costs of collection,
including attorneys' fees, but which shall not, in any event, exceed the maximum rates permitted
under California Civil Code Section 1366, or any successor statute or law.
5.11 Estoppel Certificate. The Community Board on not less than ten (10) days prior
written request shall execute, acknowledge and deliver to the party making such request a
statement in writing stating whether or not, to the knowledge of the Community Association, a
particular Owner is in default as to such Owner's Residential Lot under the provisions of this
Declaration and further stating the dates to which installments of assessments, regular or special,
have been paid as to such Residential Lot. Any such statement may be relied on by any
prospective purchaser or Mortgagee of the Residential Lot, but reliance on such statement may
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not extend to any default not involving the payment of assessments of which the signer had no
actual knowledge.
5.12 Excess Funds. The Community Board may determine that funds remaining in the
Operating Fund at the end of a Fiscal Year be retained and used to reduce the following Fiscal
Year's Regular Assessments. Upon dissolution of the Community Association incident to the
abandonment or termination of the Covered Property as a planned development, any amounts
remaining in any of the Community Association Maintenance Funds shall be distributed to or for
the benefit of the Members in the same proportions as such monies were collected from them.
5.13 Collection of Assessments; Liens.
5.13.1 Right to Enforce. The right to collect and enforce Assessments is vested
in the Community Board acting for and on behalf of the Community Association. The
Community Board or its authorized representative, can enforce the obligations of the Owners to
pay Assessments provided for in this Declaration by commencement and maintenance of a suit at
law or in equity, or the Community Board may foreclose by judicial proceedings or through the
exercise of the power of sale pursuant to Section 5.13.6 enforce the lien rights created. Suit to
recover a money judgment for unpaid Assessments together with all other Additional Charges
described in Section 5.15 shall be maintainable without foreclosing or waiving the lien rights.
Notwithstanding anything else to the contrary herein, except for monetary penalties imposed by
the Community Association to reimburse the Community Association for costs incurred by the
Community Association in the repair of damage to the Community Association Property or
Common Maintenance Areas for which the Member or the Member's guests or Invitees were
responsible which may become a lien on the Owner's Residential Lot, a monetary penalty
imposed by the Community Association as a disciplinary measure for failure of a Member to
comply with the Community Governing Documents or in bringing the Member and his or her
Residential Lot into compliance with the Community Governing Documents may not be
characterized nor treated as an Assessment which may become a lien against the Member's
Residential Lot enforceable by a sale of the interest hereunder. The limitation in the preceding
sentence however, does not apply to any Additional Charges.
5.13.2 Notice of Assessment and Foreclosure. The Community Association shall
distribute a written notice regarding assessments and foreclosure as set forth in California Civil
Code Section 1365.1 during the sixty (60) day period immediately preceding the beginning of
each fiscal year.
5.13.3 Delinquent Assessments. The Community Association shall comply with
the requirements of California Civil Code Section 1367.1 and any successor statutes or laws
when collecting delinquent assessments. The Community Board or its authorized representative
must send to the delinquent Owner or Owners, at least thirty (30) days prior to the recordation of
a lien against the delinquent Owner's Residential Lot (as set forth in Section 5.13.4), a written
notice by certified mail, which notice shall contain all of the information specified in California
Civil Code Section 1367.1 and any successor statutes or laws ("Initial Notice"). The delinquent
Owner may dispute the debt noticed pursuant to the Initial Notice by submitting to the
Community Board a written explanation of the reasons for the delinquent Owner's dispute
("Owner Explanation"). The Community Board shall respond to the Owner Explanation in
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writing to the delinquent Owner within the time frame set forth in California Civil Code
Section 1367.1 and any successor laws or statutes. The delinquent Owner may submit a written
request to the Community Board to meet with the Community Board to discuss a payment plan
for the debt noticed in the Initial Notice. The Community Board shall meet with the delinquent
Owner in executive session within the time frame set forth in California Civil Code
Section 1367.1 and any successor laws or statutes. The Community Association shall provide
the Owners the standards for payment plans if any exists.
5.13.4 Creation of Lien. If there is a delinquency in the payment of any
assessment, or installment on a Residential Lot any amounts that are delinquent, together with
the late charge described in California Civil Code Section 1366 and any successor statutes or
laws, interest at the rate permitted in such Section, and all costs that are incurred by the
Community Board or its authorized representative in the collection of the amounts, including
reasonable attorneys' fees, shall be a lien against such Residential Lot upon the recordation in the
Office of the County Recorder of a notice of delinquent assessment ("Notice of Delinquent
Assessment") as provided in California Civil Code Section 1367 and any successor statutes or
laws. After its recordation, the Notice of Delinquent Assessment shall be mailed to all Owners
of record as provided in California Civil Code Section 1367.1 and any successor statutes or laws.
5.13.5 Assignment. The Community Association may not voluntarily assign or
pledge the Community Association's right to collect payments or assessments, or to enforce or
foreclose a lien to a third party except where provided under California Civil Code
Section 1367.1(g) and any successor statutes or laws.
5.13.6 Notice of Default; Foreclosure. The Community Board or its authorized
representative can record a notice of default and can cause the Residential Lot with respect to
which a notice of default has been recorded to be sold in the same manner as a sale is conducted
under California Civil Code Sections 2924, 2924b and 2924c and any successor statutes or laws,
or through judicial foreclosure, and as provided in California Civil Code Section 1367.1 and any
successor statutes or laws. However, as a condition precedent to the holding of any such sale
under Section 2924c, appropriate publication shall be made. In connection with any sale under
Section 2924c, the Community Board is authorized to appoint its attorney, any officer or
director, or any title insurance company authorized to do business in California as trustee for
purposes of conducting the sale. The fee of the trustee shall not exceed the amounts prescribed
in California Civil Code Sections 2924c and 2924d. If (a) a delinquency is cured before sale, or
before completing a judicial foreclosure, or (b) if it is determined that a lien previously recorded
against a Residential Lot was recorded in error, the Community Board or its authorized
representative, within the time frame set forth in California Civil Code Section 1367.1 and any
successor statutes or laws, shall cause to be recorded in the office of the County Recorder a
certificate setting forth the satisfaction or rescission of such claim and release of such lien upon
payment of actual expenses incurred, including reasonable attorneys' fees by any delinquent
Owner. If the lien was satisfied, the Community Association shall provide the delinquent Owner
a copy of the lien release or notice that the delinquent assessment has been satisfied and if the
Community Association filed a rescission of the lien, then the Community Association shall
provide such Owner with a declaration that the lien filing or recording was in error and a copy of
the lien release or notice of rescission. Any payments made on delinquent assessments shall be
applied in accordance with California Civil Code Section 1367.1 and any successor statutes or
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laws. On becoming delinquent in the payment of any assessments, or installments each
delinquent Owner shall be deemed to have absolutely assigned all rent, issues and profits of his
or her Residential Lot to the Community Association and shall further be deemed to have
consented to the appointment of a receiver (which appointment may, at the election of the
Community Association, be enforced by the Community Association through specific
performance). The Community Association, acting on behalf of the Owners, shall have the
power to bid upon the Residential Lot at foreclosure sale and to acquire, hold, lease, mortgage
and convey the Residential Lot and vote as an Owner of the Residential Lot.
5.13.7 Payments Under Protest. Notwithstanding any other provisions set forth
in this Section 5.13, the Owners shall have the right to make certain payments under protest and
be entitled to alternative dispute resolution as provided in California Civil Code Sections 1354
and 1366.3, and 1367.1 or any successor statutes or laws, as provided in this Declaration.
5.13.8 Payment of Assessments. Any payments of sums due under this Article
shall first be applied to assessments owed, and only after assessments owed have been paid in
full shall the payments be applied to the fees and costs of collections, attorney's fees, late
charges or interest. If an Owner requests a receipt after payment of a delinquent assessment, the
Community Association shall provide a receipt which sets forth the date of payment and the
individual who received such payment.
5.14 Additional Charges. In addition to any other amounts due or any other relief or
remedy obtained against an Owner who is delinquent in the payment of any Assessments, each
Owner agrees to pay Additional Charges incurred or levied by the Community Board including
such additional costs, fees, charges and expenditures as the Community Association may incur or
levy in the process of collecting from that Owner monies due and delinquent subject to
California Civil Code Section 1362.l(j). Additional Charges shall include, but not be limited to,
the following:
5.14.1 Attorneys' Fees. Reasonable attorneys' fees and costs incurred in the
event an attorney(s) is employed to collect any Assessment or sum due, whether by suit or
otherwise;
5.14.2 Late Charges. A late charge in an amount to be fixed by the Community
Board in accordance with Civil Code Section 1366, or any successor statute or law, to
compensate the Community Association for additional collection costs incurred in the event any
Assessment or other sum is not paid when due or within any "grace" period established by law;
5.14.3 Costs of Suit. Costs of suit and court costs incurred as are allowed by the
court;
5.14.4 Interest. Interest to the extent permitted by law; and
5.14.5 Other. Any such other additional costs that the Community Association
may incur in the process of collecting delinquent Assessments or sums.
5.15 Waiver of Exemptions. Each Owner, to the extent permitted by law, waives, to
the extent of any liens created pursuant to this Article, the benefit of any homestead or
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exemption laws of California in effect at the time any Assessment, or installment becomes
delinquent or any lien is imposed.
5.16 Subordination of Lien to First Mortgages. When a Notice of Delinquent
Assessment has been recorded, such assessment shall constitute a lien on such delinquent
Owner's Residential Lot prior and superior to all other liens, except, (a) all taxes, (b) bonds,
assessments and other levies which, by law, would be superior thereto, and (c) any First
Mortgage now or hereafter placed upon any Residential Lot subject to assessment. The sale or
transfer shall relieve such Residential Lot from lien rights for any Assessments thereafter
becoming due nor from the lien of any subsequent Assessment. Where the First Mortgagee or
other purchaser of a Residential Lot obtains title to the same as a result of foreclosure (excluding
a transfer by a deed in lieu of foreclosure), such acquirer of title, his or her successors and
assigns, shall not be liable for the share of the Common Expenses or Assessments by the
Community Association chargeable to such Residential Lot which became due prior to the
acquisition of title to such Residential Lot by such acquisition, except for a share of such charges
or Assessments resulting from a reallocation of such charges or Assessments which are made
against all Residential Lots.
5.17 No Offsets. All Assessments shall be payable in the amounts specified by the
particular Assessment and no offsets against such amount shall be permitted for any reasons,
including, without limitation, a claim that the Community Association is not properly exercising
its duties of maintenance, operation or enforcement.
5.18 Transfer of Covered Property. After transfer or sale of property within the La
Costa Oaks Community, the selling Owner or Owners shall not be liable for any Assessment
levied on such Owner or Owner's Residential Lot after the date of such transfer of ownership
and written notice of such transfer is delivered to the Community Association. The selling
Owner shall still be responsible for all Assessments and charges levied on his or her Residential
Lot prior to any such transfer.
5.19 Failure to Fix Assessments. The omission by the Community Board to fix the
Assessments hereunder before the expiration of any year, for that or the next year, shall not be
deemed either a waiver or modification in any respect of the provisions of this Declaration or a
release of the Owner from the obligation to pay the Assessments or any installment thereof for
that or any subsequent year, but the Assessment fixed for the preceding year shall continue until
a new Assessment is fixed.
5.20 Personal Liability of Owner. No Member may exempt himself or herself from
personal liability for Assessments levied by the Community Association nor release the Lot
owned by such Owner from the liens and charges for Assessments by waiver of the use and
enjoyment of the Community Association Property or Common Maintenance Areas or by
abandonment of such Owner's Residential Lot.
5.21 Exempt Covered Property. Community Association Property and all Covered
Property dedicated to and accepted by a local public authority, and all Covered Property owned
by a charitable nonprofit organization exempt from taxation by the laws of the State of
California, shall be exempt from assessments by the Community Association. However, no land
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or improvements devoted to dwelling use shall be exempt from assessments by the Community
Association.
5.22 Capitalization of Community Association. Upon the Close of Escrow of a
Residential Lot, each Owner shall contribute to the capital of the Community Association an
amount equal to Seventy-Five Dollars ($75.00). Notwithstanding the foregoing, the Community
Association, with the prior written consent of the Declarant, may elect to terminate the collection
of the capital contributions, and in such case, any Owner who has previously paid a capital
contribution shall NOT be entitled to any offsets to the Owner's assessments which have been
previously paid. The capital contribution shall be deposited by the Owner into the purchase and
sale escrow and disbursed from the escrow to the Community Association. Amounts paid
pursuant to this Section shall not be considered as advance payments of Assessments and are in
addition to and not in lieu of Regular Assessments and Special Assessments of the Community
Association. The provisions set forth above shall not apply to the conveyance of a Residential
Lot to a Merchant Builder by Declarant.
ARTICLE 6
ARCHITECTURAL CONTROL
To maintain the architectural harmony of the La Costa Greens Community, the
Community Board will appoint an Architectural Committee which will be charged with the
responsibility for ensuring the overall architectural integrity of the La Costa Greens Community.
One of the functions of the Architectural Committee will be to implement design standards for
the La Costa Greens and to implement procedures for review of architectural plans. These
standards and procedures will be set forth in the La Costa Greens Community Design Standards.
Additionally, the Architectural Committee will review the plans of each Owner for the
installation of Improvements within the Covered Property and may take such actions as it deems
necessary to ensure compliance with the standards of the Community Design Standards.
6.1 Architectural Committee. The Architectural Committee shall be a committee of
not less than three (3) nor more than five (5) persons. All members of the Architectural
Committee may be appointed and replaced by Declarant until the earlier to occur of (a) the date
that 772 of the Residential Lots proposed for the overall La Costa Greens Community have been
conveyed to Class A Members; or (b) on the seventh (7th) anniversary following the most recent
conveyance to a Class A Member of a Residential Lot in any Phase under authority of a Public
Report. Thereafter, all members of the Architectural Committee shall be appointed or replaced
by the Community Board. Architectural Committee members appointed by Declarant need not
be Members of the Community Association.
6.1.1 Resignations. Any member or alternate member of the Architectural
Committee may at any time resign from the Architectural Committee upon written notice
delivered to Declarant or to the Community Board, whichever then has the right to appoint
Architectural Committee members.
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6.1.2 Vacancies. Vacancies on the Architectural Committee, however caused,
shall be filled by the Declarant or the Community Board, whichever then has the power to
appoint Architectural Committee members.
6.2 Scope. No Improvements shall be commenced, erected or maintained upon the
Covered Property, nor shall there be any addition to or change in the exterior of any Residence,
structure or other Improvement, unless plans and specifications, therefor, showing the nature,
design, kind, shape, height, width, color, material and location and any other information
prescribed by the Community Design Standards (collectively, "Plans and Specifications") have
been submitted to and approved by the Architectural Committee in accordance with the
procedures set forth in the Community Design Standards. The provisions of this Article shall
preempt and supersede any inconsistent provision of any rules or restrictions of any
Condominium Project Association to the extent that any Condominium Project Declaration or
any other governing documents for a Condominium Project are in conflict with the provisions of
this Declaration.
6.3 Exemptions. The exemptions described below are hereby granted and the
provisions of this Article shall not apply to the parties described below.
6.3.1 Declarant Exemption. The provisions of this Article 6 shall not apply to
Declarant or to any Improvements erected or installed by the Declarant within the La Costa
Greens Community.
6.3.2 Merchant Builder Exemption. The provisions of this Article 6 shall not
apply to Merchant Builder or to any Improvements erected or installed by the Merchant Builder
within the La Costa Greens Community.
6.4 Duties. It shall be the duty of the Architectural Committee to consider and act
upon such proposals or plans submitted to it pursuant to the Community Design Standards, to
foster the maintenance of and ensure compliance with the architectural standards for the La
Costa Greens Community, to administer the Community Design Handbook, to perform other
duties delegated to it by the Community Association, to ensure that any Improvements
constructed within the Covered Property conform to plans approved by the Architectural
Committee, and to carry out all other duties imposed upon it by the Community Governing
Documents. The Architectural Committee, in its own name or on behalf of the Community
Association, may exercise all available legal and equitable remedies to prevent or remove any
unauthorized and unapproved construction of Improvements within the Covered Property or any
portion thereof. Notwithstanding the foregoing, the Architectural Committee may delegate its
plan review responsibilities to one or more members of the Architectural Committee or to any
other individuals or consultants deemed acceptable to the Architectural Committee. Upon such
delegation, the approval or disapproval of plans and specifications by such persons shall be
equivalent to approval or disapproval by the entire Architectural Committee. Unless any such
procedures regarding submission of plans are complied with, such Plans and Specifications shall
be deemed not submitted.
6.5 Community Design Standards. The Community Board shall adopt and
promulgate the Community Design Standards to be administered through the Architectural
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Committee prior to the first close of escrow of a Residential Lot to an Owner under a Public
Report. The Community Design Standards shall establish a plan for the architectural standards
of the La Costa Greens Community and shall establish guidelines and procedures to be followed
by each Owner, including the procedures for submission of plans and specifications. The failure
of the Community Board to include any particular standards or guidelines in the Community
Design Standards shall not limit the right of the Architectural Committee to enforce standards to
protect the overall theme and development of the Covered Property. The Community Design
Standards shall set forth time limitations for the completion of any Improvements for which
approval is required. The Community Design Standards may include such other limitations and
restrictions as the Community Board in its reasonable discretion shall adopt including, without
limitation, regulations of the following: construction, reconstruction, exterior addition, change
or alteration to or the maintenance of any building, structure, wall or fence and conversions of
garages, including, without limitation, the nature, kind, shape, height, materials, exterior color
and surface and location of any Residence, or other Improvements of any kind.
6.6 Address. The address of the Architectural Committee shall be the principal office
of the Community Association or any other place as may be designated by the Community Board
pursuant to the Community Bylaws. Such address shall be the place for the submittal of plans
and specifications and the place where the current Community Design Standards, if any, shall be
kept.
6.7 Fees. The Community Board may establish fees for the review and approval of
any plans initially submitted and/or resubmitted by an Owner. A schedule of such fees shall be
included in the Community Design Standards.
6.8 Meetings. The Architectural Committee shall meet from time to time as
necessary to properly perform its duties hereunder. Unless otherwise provided for herein, the
vote or written consent of a majority of the members of the Architectural Committee shall
constitute an act by the Architectural Committee unless the unanimous decision of its members is
otherwise required by the Community Governing Documents. The members of the Architectural
Committee shall be entitled to reimbursement for reasonable expenses incurred by them in the
performance of any Architectural Committee function.
6.9 Approval of Solar Energy Systems. Any Owner proposing to install or use a solar
energy system, as defined in Civil Code Section 801.5, shall be subject to the same review and
approval process as any Owner proposing to construct any Improvements or other actions
requiring the approval of the Architectural Committee pursuant to this Declaration. However,
only reasonable restrictions on the installation and use of a solar energy system shall be
permitted. Reasonable restrictions on a solar energy system are those restrictions which do not
significantly increase the cost of the system or its sufficiency or specified performance, or which
allow for an alternative system of comparable costs, efficiency, and energy conservation
benefits.
6.10 Waiver. The approval by the Architectural Committee of any plans, drawings or
specifications for any work done or proposed, or for any other matter requiring the approval of
the Architectural Committee under this Declaration, shall not constitute a waiver of any right to
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withhold approval of any similar plan, drawing, specification or matter subsequently submitted
for approval.
6.11 Government Regulations. In the event there is any conflict between the
requirements or actions of the Architectural Committee and the mandatory regulations or
ordinances of any governmental entity relating to the Covered Property, the government
regulation or ordinance, to the extent that such regulations and ordinances are more restrictive,
shall control and the Architectural Committee shall modify its requirements or actions to
conform to the government regulation or ordinance; provided, however, that if the governmental
rules or regulations are less restrictive, the provisions of this Declaration shall nonetheless apply.
The application by an Owner for review and approval by the Architectural Committee of any
plans and specifications or other submittals by such Owner shall in no way be deemed to be
satisfaction or compliance with any applicable statute or law, or governmental rule or regulation
or public utility requirement (hereinafter collectively referred to as "Additional Requirements");
provided, however, if the additional requirements are less restrictive than the provisions of this
Declaration, the provisions of this Declaration shall nonetheless apply. Although the
Community Association has the right to require evidence of City approval of the Improvements
as a condition to review of the final Plans and Specifications, nothing contained herein shall
impose on the Community Association the duty to obtain evidence of approval by the City of any
Improvements as a condition to issuance of final approval or any liability on the Community
Association as a result of the failure of the Community Association to request evidence of City
approval.
6.12 Waiver. The approval of the Architectural Committee 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 Architectural Committee shall not be deemed to
constitute a waiver of any right to withhold approval or consent as to any similar proposals,
Plans and Specifications, drawings or matters whatever subsequently or additionally submitted
for approval or consent. Although the Architectural Committee shall take into consideration the
aesthetic aspects of the architectural designs, placement of buildings, landscaping, color,
schemes, exterior finishes and materials, and similar features, it shall not be responsible for
reviewing, nor shall its approval of any plans or design be deemed approval of any plan or design
from the standpoint of adequacy of drainage, structural safety or conformance with building or
other codes or the requirements of the City.
6.13 Variances. The Architectural Committee may authorize variances from
compliance with any of the architectural provisions of this Article 6, including, without
limitation, restrictions on height, size, floor area or placement of structures, or similar
restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or
environmental considerations may require. Such variances must be in writing, and must be
signed and acknowledged by at least a majority of the members of the Architectural Committee.
The granting of such a variance shall not operate to waive any of the terms and provisions of this
Article 6 for any purpose except as to the particular property and particular provision hereof
covered by the variance, nor shall it affect in anyway the Owner's obligation to comply with all
laws and regulations of any Governmental Agency affecting the use of such Owner's Residential
Lot, including, but not limited to, zoning and building requirements of any Governmental
Agency having jurisdiction over the Residential Lot. No variance shall be authorized from the
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Community Design Standards adopted by the Architectural Committee, except with the majority
vote of all members of the Architectural Committee.
6.14 Liability. Neither the Community Board nor the Architectural Committee nor any
member thereof shall be liable to the Community Association or to any Owner for any damage,
loss or prejudice suffered or claimed on account of: (a) the approval or disapproval of any plans,
drawings and specifications, whether or not defective; (b) the construction or performance of any
work, whether or not pursuant to approved plans, drawings, and specifications; or (c)the
execution and filing of an estoppel certificate pursuant to this Article 6, whether or not the facts
therein are correct; provided, however, that such Community Board and Architectural
Committee member has acted in good faith on the basis of such information as may be possessed
by him. Without in any way limiting the generality of the foregoing, the Architectural
Committee or any member thereof, may, but is not required to, consult with or hear the views of
the Community Association or any Owner with respect to any plans, drawings, specifications or
any other proposal submitted to the Architectural Committee.
6.15 Estoppel Certificate. Within thirty (30) days after written request is delivered to
the Community Board by any Owner, and upon payment to the Community Association of a
reasonable fee (as fixed from time to time by the Community Association), the Community
Board shall deliver an estoppel certificate to the requesting Owner, executed by any two (2) of its
members, certifying (with respect to any Residential Lot of said Owner) that as of the date
thereof, either: (a) all Improvements made and other work completed by said Owner comply
with this Declaration, or (b) such Improvements or work do not so comply, in which event the
certificate shall also identify the non-complying Improvements or work and set forth with
particularity the basis of such non-compliance. Any purchaser from the Owner, or from anyone
deriving any interest from such Owner, shall be entitled to rely on said certificate with respect to
the matters therein set forth, such matters being conclusive as between the Community
Association, Declarant and all Owners and such persons deriving any interest through them.
6.16 Interpretation. All questions of interpretation or construction of any of the terms
or conditions herein shall be resolved by the Architectural Committee, or if upon appeal, by the
Community Board and its decision shall be final, binding and conclusive on all of the parties
affected unless such decision is appealed, in which case the decision of the Community Board
shall be final, binding and conclusive on all of the parties affected.
6.17 Amendments. Notwithstanding the Article hereof entitled "Amendments," no
amendment, verification or rescission of this Article may be had, nor shall Declarant, or any
successor thereof, be prohibited from completing the construction of the La Costa Greens
Community prior to the conveyance by Declarant, or its successor, of the last Residential Lot
without the (i) written consent of Declarant, and the (ii) recording of such consent in the Office
of the County Recorder. Such written consent shall not be required after the conveyance by
Declarant and any Merchant Builders of all the Residential Lots within the Covered Property.
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ARTICLE 7
USE RESTRICTIONS
Living in a master planned community has the benefit of providing a sense of community
and governance for the benefit of all the Owners within the La Costa Greens Community. To
ensure the continued value and enjoyment of the La Costa Greens Community, there are also use
restrictions which govern each Owner within the Community. While the use restrictions may
limit the rights to perform certain activities within the La Costa Greens Community, the use
restrictions also help to protect the overall La Costa Greens Community and thereby may
provide a benefit to the Owners and their occupants.
7.1 Residential Use. All Residential Lots within the Covered Property 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 his or her Residential Lot by means of a written
lease or rental agreement. No lease shall be for a term of less than thirty (30) days. No
Residential 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 Residential 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 or the Merchant Builders. The provisions of this
Section shall not preclude professional or administrative occupations without external evidence
thereof, for so long as such occupations (i) are conducted in conformance with all applicable
governmental ordinances, (ii) are merely incidental to the use of the Residential Lot as a
residence, (iii) the patrons or clientele of such professional or administrative occupation do not
regularly visit or conduct business on the Residential Lot and (iv) the conduct of the business
does not result in the regular parking of business vehicles in the streets adjacent to the Covered
Property. In addition, home childcare facilities shall be permitted only to the extent they are
operated in accordance with applicable law, including but not limited to zoning requirements and
licensing regulations.
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 Covered Property, 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 Covered Property or to any Owner or 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 Covered Property not improved as a street,
driveway or parking area. Outdoor lighting on a Residential Lot shall be hooded and shaded and
adjusted so the light falls only on the Residential Lot on which the lighting is located and does
not fall or reflect on other Residential Lots or public rights of way.
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7.3 Air Conditioning Fixtures. No wiring or air conditioning fixture, water softeners
or other devices (other than solar heating devices approved by the Architectural Committee)
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).
7.4 Utilities. All utility, storage areas or structures and pool and spa equipment
installed or constructed after the conveyance of a Residential Lot to an Owner by Declarant or a
Merchant Builder must be (i) completely concealed from the view of any other Residential 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 Residential Lot.
7.4.1 Accessory Structures. Patios and accessory structures may be allowed if
they are in conformance with the City's Zoning Ordinances Section 21.10.050(l)(d)(i),(ii),
(iii) and (iv) and Section 21.10.050(2) and approved by the Architectural Committee.
7.5 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 or the
Merchant Builder.
7.6 Antennae and Satellite Dishes. No person may install on the exterior of any
Residence or in a yard any antenna or over-the-air receiving device except for an "Authorized
Antenna." An Authorized Antenna is (i) an antenna designed to receive direct broadcast satellite
service, including direct-to-home satellite service, that is one meter or less in diameter, or (ii) an
antenna designed to receive video programming service, including multichannel multipoint
distribution service, instructional television fixed service, and local multipoint distribution
service, and is one meter or less in diameter or diagonal measurement, (iii) an antenna designed
to receive television broadcast signals, or (iv) an antenna used to receive and transmit fixed
wireless signals.
7.6.1 Restriction on Installation. The Community Board may adopt reasonable
restrictions on installation and use of an Authorized Antenna as part of its Community Design
Standards Guidelines in order to minimize visibility of the Authorized Antenna from other
Residential Lots. Such restrictions may designate one or more preferred installation locations, or
requires camouflage such as paint (subject to the antenna manufacturer's recommendations) or
screening vegetation or other Improvements. However, no restriction imposed by the
Community Board may (i) unreasonably delay or prevent the installation, maintenance or use of
an Authorized Antenna, (ii) unreasonably increase the cost of installation, maintenance or use of
an Authorized Antenna, or (iii) preclude acceptable quality reception.
7.6.2 Prohibition on Installation. The Community Board may prohibit the
installation of an Authorized Antenna in a particular location if, in the Community Board's
opinion, the installation, location or maintenance of such Authorized Antenna unreasonably
affects the safety of the Owners or any other Person, or for any other safety-related reason
established by the Community Board. The Community Board may also prohibit an Owner from
installing an Authorized Antenna on any real property which such Owner does not own or is not
entitled to exclusively use or control under this Declaration. The Community Board also has the
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power to prohibit or restrict the installation of any antenna or other over-the-air receiving device
that does not meet the definition of an Authorized Antenna above.
7.6.3 Review after Installation. The Community Board may review the location
and installation of an Authorized Antenna after it is installed. After its review, the Community
Board may require that the Authorized Antenna be moved to a preferred location (if one has been
designated) for safety reasons or to comply with reasonable restrictions subject to this Section
and applicable law.
7.6.4 Restatement of Applicable Law. Notwithstanding the provisions of this
Section, the Community Board shall not impose or enforce any restrictions upon television or
video antennae, including satellite dishes, that are inconsistent with the provisions of 47 U.S.C.
Section 207 or the regulations promulgated thereunder, or any successor statues or laws. This
Section is intended to be a restatement of the authority granted to the Community Board under
the law. All amendments, modifications, restatements and interpretations of the law applicable
to the installation, use or maintenance of an antenna or other over-the-air receiving device shall
be interpreted to amend, modify, restate or interpret this Section.
7.7 Exterior Maintenance and Repair; Owner's Obligations. No Improvement within
a Residential 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 Residential Lot.
7.8 Drainage. There shall be no interference with the established drainage pattern
over any Residential Lot so as to affect any other portion of the Covered Property, unless an
adequate alternative provision is made for proper drainage and it is in accordance with all
applicable governmental codes and ordinances and approved by the Architectural Committee.
"Established drainage" is defined as the drainage which exists at the time the overall grading and
landscaping of the Covered Property is completed pursuant to grading plans approved by the
City. All drainage facilities located on a Residential Lot shall be maintained by the Owner of the
Lot. The finished pad elevation of a Residential Lot shall be at least six (6) inches below the
finished floor slab of the Residence on such Residential Lot. Unless otherwise specified in a
Supplementary Declaration or under the Final Maps, all concrete terrace drains located on a Lot
(other than within the Common Maintenance Area) shall be maintained in good working
condition by the Owners of the Lot. No drainage shall be allowed from one Lot to another
unless that drainage pattern is part of the established drainage pattern.
7.9 Water and Sewer Systems. No individual water supply system, water softener
system or sewage disposal system shall be permitted on Residential 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 Agencies.
7.10 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. No toxic chemicals or hydrocarbon materials (including gasoline, motor oil,
antifreeze, solvents, paint, paint thinners, wood preservatives or other similar fluids) shall be
discharged onto any public or private street or into storm drain or storm water conveyance
systems serving the Covered Property. Use and disposal of pesticides, fungicides, herbicides,
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insecticides, fertilizers and other chemicals shall be consistent with laws, ordinances, and
regulations of all federal, state, County, City and other Governmental Agencies and such use and
disposal shall also be in accordance with recommendations prescribed by the manufacturer of the
product on the product container. The Community Association may coordinate the use of the
City's established program to assist Owners with the removal and proper disposal of toxic and
hazardous waste products from the Covered Property. Best Management Practices shall be used
to eliminate or reduce surface pollutants when making changes to the landscaping and surface
improvements of the Covered Property.
7.11 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 such purpose (i.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 Residential
Lot. The containers shall be exposed to the view of neighboring Residential 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 and outdoor
fireplaces contained within receptacles designed therefor which do not create a fire hazard.
7.12 Temporary and Prefabricated Structures. No shed, shack, trailer or any temporary
building, improvement or structure shall be placed upon any portion of a Residential Lot without
the prior approval of the Architectural Committee. The foregoing excludes construction trailers
and other temporary or prefabricated structures or improvements utilized during construction and
sales activities by the Declarant or a Merchant Builder.
7.13 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.
7.14 View Impairment. There is no representation that any view exists from any Lot.
Each Owner, by accepting a deed to a Residential Lot, acknowledges that grading of,
construction on or installation of improvements, including landscaping and the growth of
landscaping, on other Lots within the Covered Property and on surrounding real property may
impair whatever view may exist from the Owner's Residential Lot and each Owner consents to
such impairment and waives any claim for view impairment. Each Owner and the Community
Association, by accepting a deed to a Lot or any Community Association Property, respectively,
acknowledges that any construction or installation by Declarant or a Merchant Builder or by
other Owners following Architectural Committee approval as provided in Article 6 hereof may
impair the view of such Owner, and each Owner and the Community Association on behalf of
the Members hereby consent to such impairment.
7.15 Landscaping. Within six (6) months after the close of escrow for the sale of a
Residential Lot under a Public Report by a Merchant Builder to a retail purchaser, the Owner
shall submit plans for approval of landscaping to the Architectural Committee. Within one (1)
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year after the close of escrow, for sale of a Residential Lot under a Public Report by a Merchant
Buyer the Owners shall install and shall thereafter maintain plants, shrubs, trees and any other
appropriate landscaping improvements, pursuant to plans and specifications approved by the
Architectural Committee, on the Residential Lot. No plants or seeds infected with insects or
plant diseases, shall be brought upon, grown or maintained upon any Residential Lot. If any
Owner fails to install or maintain landscaping in conformance with the Community Design
Standards or allows his or her landscaping to deteriorate to a dangerous, unsafe, unsightly or
unattractive condition, the Community Board, 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 Community Board for the cost thereof. Each Owner
whose Residential Lot is located within a Habitat Preserve Adjacent Area shall also comply with
the requirements of Section 7.30 regarding the plant species that may be planted in a Habitat
Preserve Adjacent Area.
7.16 Parking and Vehicular Restrictions. None of the following (collectively
"Prohibited Vehicles") shall be parked, stored or kept on any street within the Covered Property:
any large commercial type vehicle (including, but not limited to, any dump truck, cement mixer
truck, oil or gas truck or delivery truck); any recreational vehicle (including, but not limited to,
any camper unit, house/car or motor home); any bus, trailer, trailer coach, camp trailer, boat,
aircraft or mobile home; any inoperable vehicle or any other similar vehicle; or any vehicle or
vehicular equipment, mobile or otherwise, constituting a nuisance, except that the foregoing shall
not restrict any recreational vehicles permitted to be parked in the Recreational Vehicle Storage
Area. No Prohibited Vehicle shall be parked, stored or kept on any Residential Lot except
wholly within an enclosed garage, and then only if the garage door is capable of being fully
closed. Prohibited Vehicles shall not be allowed in any driveway or other exposed parking areas,
or any street (public or private), 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 hours during any seven (7) consecutive days. Vehicles owned, operated or
within the control of an Owner, or of a resident of the Owner's Residential Lot, shall be parked
in the garage. Garages shall be used only for parking authorized vehicles, and shall not be used
for storage, living or business purposes, or any other purpose which prevents the storage of the
number of vehicles for which the garage was assigned; provided, however, if the Lot contains a
three (3) or more car garage, one parking space within the garage may be used for storage or may
be converted for living purposes if approved by the City and the Architectural Committee.
Garage doors shall be kept closed at all times, except as reasonably required for ingress to and
egress from the interiors of the garages. No repairs or restorations of any motor vehicle, boat,
trailer, aircraft or other vehicle or equipment shall be conducted upon any street, Lot or
elsewhere within the Covered Property, except wholly within an enclosed garage; provided,
however, that such activity is not undertaken as a business, and provided further that such
activity is prohibited entirely if it constitutes a nuisance. Any repair which continues for a period
exceeding sixty (60) days in any one (1) year period shall be deemed a storage. These
restrictions shall not be interpreted in such a manner so as to permit any activity which would be
contrary to any ordinance of the City or other Governmental Agency having jurisdiction over the
Covered Property.
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7.17 Further Subdivision. No Residential Lot may be further subdivided (including
division into time-share estates or time-share uses) without the prior written approval of the
Community Board; provided, however, that nothing in this Section shall be deemed to prevent an
Owner, including Declarant and the Merchant Builders, from selling a Residential 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, or leasing or renting by any Owner of all of his or her Residential Lot by
means of a written lease or rental agreement, or adjusting the boundary of a Residential Lot by
boundary adjustment or parcel map.
7.18 Animals. No animals, fowl, poultry, fish, reptiles or insects of any kind
("animals") shall be raised, bred or kept on any Residential Lot, except that a reasonable number
of birds, fish, dogs, cats or other household pets may be kept, provided that they are not kept,
bred or maintained for any commercial purpose, nor in unreasonable quantities nor in violation
of any applicable law or ordinance. No animal shall be maintained in any Residential Lot which
constitutes a nuisance to other Owners of Residential 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 Invitees, for any unreasonable noise or damage to person or property caused by any animals
brought or kept upon the Covered Property by an Owner or by such Owner's Invitees and it shall
be the duty and responsibility of each Owner to clean up after such animals which have used any
portion of the Covered Property. Notwithstanding the foregoing, the Community Handbook may
further limit or restrict the keeping of such pets. The Community Board shall specifically have
the power to prohibit the keeping or maintenance of any animal, which, in the opinion of the
Community Board, after Notice and Hearing, is deemed by the Community Board to constitute a
nuisance to any other Owner in the sole and exclusive opinion of the Community Board.
7.19 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 Covered Property, except (i) such
signs, flags, poles and banners (regardless of size or configuration) as may be used by Declarant
or the Merchant Builders in connection with the development of the Covered Property and the
sale, lease or other disposition of Residential Lots, (ii) entry monuments and similar community
identification signs, and (iii) one sign on each Residential Lot advertising the Residential Lot for
sale or lease in conformance with the Community Design Standards and any ordinances of the
City. All signs shall conform to the sign ordinances of the City, and shall when required by City
Ordinance be reviewed and approved by the Planning Director of the City prior to installation.
7.20 Trees. All trees, hedges and other plant materials shall be trimmed by the Owner
of the Residential Lot upon which they are located so they do not create a nuisance, which
determination shall be within the sole judgment of the Community Board. Before planting any
trees, the proposed location of the trees shall be approved in writing by the Architectural
Committee, except that this restriction shall not apply to any trees planted by Declarant or a
Merchant Builder on a Residential Lot. Any replacement of trees and hedges planted by
Declarant or a Merchant Builder may only be replaced with the same tree or hedge, unless the
Owner demonstrates to the Architectural Committee that the original tree or hedge is not suitable
for such location due to its size or due to its susceptibility to disease. Each Owner whose
Residential Lot is located within a Habitat Preserve Adjacent Area shall also comply with the
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requirements of Section 7.30 regarding the plant species that may be planted in a Habitat
Preserve Adjacent Area.
7.21 Slope Control, Use and Maintenance. Each Owner will keep, maintain, water,
plant and replant all slope banks located on the Owner's Residential Lot (other than slopes
within the Common Maintenance Area or any other areas designated for maintenance by others
in a Supplementary Declaration) to prevent erosion, control brush in accordance with the
requirements of the City and to create an attractive appearance. It shall be the duty of all Owners
to conduct all construction and installation of improvements on such slopes in accordance with
any guidelines or rules adopted by the Community Board for maintenance of such slopes.
Thereafter each Owner shall keep, maintain, water, and replant all slopes in such a manner as to
protect the integrity of such Owner's Residential Lot and all adjoining Residential Lots and the
structural improvements thereon. No Owner of a Residential Lot upon which any Common
Maintenance Area is located shall alter or modify the landscaping, irrigation or other
Improvements located within such Common Maintenance Area, and such Owners shall not
install Improvements of any kind within such Common Maintenance Area and is only permitted
to enter such Common Maintenance Area only as is reasonably necessary to maintain, construct
or repair Improvements on the portion of such Owner's Residential Lot located adjacent to such
Common Maintenance Area if prior approval of the Community Board is obtained. 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.
7.22 Habitat Preserve Areas. Any Owner of a Lot within a Habitat Preserve Adjacent
Area shall comply at all times, with the Habitat Preserve Restrictions. The Community
Association shall also, at all times comply with the Habitat Preserve Restrictions to the extent
they effect the Community Association Property or Common Maintenance Areas. For each
Owner's information, educational materials prepared by the Habitat Preserve Manager are
attached hereto as Exhibit "D".
7.23 Erosion Control. Prior to installing any landscaping on an Owner's Residential
Lot, the Owner shall be responsible for ensuring that there is no runoff from the Owner's
Residential Lot and the Owner shall be required to take such action as may be reasonably
necessary to prevent any runoff, including, if required by the City or any Governmental Agency,
installing landscaping in advance of the time periods set forth in Section 8.15. During
landscaping of an Owner's Residential Lot, landscaping and construction materials must be
stored only upon the Owner's Residential Lot. Such materials must be properly contained to
prevent spillover into the streets or Community Association Property or Common Maintenance
Areas or any other areas within the La Costa Greens Community. Should spillover occur, spilled
material must be swept and containerized. Spilled materials shall not be washed into the storm
water curb drain inlets. Temporary erosion or sediment control devices (which may include
sandbags) may have been installed by Declarant or Merchant Builders during construction of the
La Costa Greens Community. Owners shall not remove any temporary erosion or sediment
control devices installed by Declarant until the Owner's Lot is landscaped and the plantings are
established. Each Owner is responsible for preventing sediment leaving Owner's Residential
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Lot. Each Owner shall be liable to the Declarant and any Merchant Builder for any damage
resulting from failure to prevent sediment from leaving the Owner's Residential Lot.
7.24 La Costa Greens Storm Drains and Storm Water. Each Owner and the
Community Association acknowledge that water that enters a storm drain flows directly to
natural sources of water, including waterways, creeks, drains, rivers, lakes and that erosion has
an impact on the environment. Unlike the water in the sewer system in the Residence which is
being purchased by an Owner, which flows to wastewater treatment plants, water that enters a
storm drain flows directly, without any treatment, to waterways, creeks, streams, rivers, lakes
and/or oceans. The National Pollution Discharge Elimination System, the Federal Clean Water
Act, and the policies and ordinances of the City in effect as of the date of this Declaration,
prohibit discharging anything other than natural rain water into storm drainage systems,
including gutters and streets which drain into storm drains. Toxic chemicals or hydrocarbon
compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood
preservatives, fertilizers, lawn clippings, yard waste, detergents, pet waste, paints and other such
materials and pollutants shall not be discharged into any street, public or private, gutters, or into
storm drains or storm water conveyance systems. Owner and the Community Association
further acknowledge that the disposal of such pollutants and materials into a storm drain system
may result in significant penalties and fines and that such Owner may be responsible for any
activities by Owner's contractors (e.g., painters, landscapers, etc.) who dispose of such pollutants
from an Owner's Lot into a storm drain system. All Owners are required to comply with such
restrictions. Owners are encouraged to consult with the City and other Governmental Agencies
concerning the proper disposal of any toxic or hazardous materials. Dumping any such materials
into sewers, gutters or storm drains is prohibited by this Declaration and against the law.
7.24.1 Storm Water Pollution Prevention Best Management Practices. To
comply with the requirements of the City and other governing jurisdiction in connection with the
storm water pollution prevention best management practices, each Owner and the Community
Association agrees that it will, at all times, maintain all Improvements and erosion control
devices located within a Lot owned by such Owner or the Community Association, in a clean
and safe condition, free and clear of any and all debris. All landscaping shall be maintained by
an Owner (including the Community Association as to Lots or easements maintained by the
Community Association) in a manner that will prevent soil erosion and minimize sediment
transport. To the extent that the Declarant or any Merchant Builder has installed any erosion
protection devices (e.g., sandbags) an Owner (including the Community Association) shall not
remove such devices unless and until all landscaping has been installed on any Lot, and has been
sufficiently grown so as to prevent soil erosion and transport of any sediment. All trash
receptacles shall be covered and closed at all times. The Community Association and the
Owners shall comply with all applicable Best Management Practices ("BMP") and perform all
maintenance that may be imposed by any water quality management plan that may affect the
Property. The costs of the Community Association's portion of such maintenance, if any, shall
be treated as Common Expenses.
7.24.2 Liability to Declarant. So long as Declarant or any Merchant Builder
owns any Lot within the Project, if an Owner or the Community Association is not in compliance
with the provisions of this Section and as a result, Declarant or a Merchant Builder incur any
liability, Declarant or the Merchant Builder shall have the right but not the obligation to enter
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upon the Lot to correct such violation. Any Owner who violates the requirements of this Section
shall indemnify, protect, defend and hold Declarant and the applicable Merchant Builder and the
Declarant's and Merchant Builder's officers, directors, successors and assigns entirely free and
harmless from and against any liabilities, penalties, costs, expenses and actions, including,
without limitation, attorneys' fees and costs arising from or attributed to a violation of the
provisions of this Section and shall, within fifteen (15) days after request from Declarant and/or
the Merchant Builder, reimburse Declarant and/or the Merchant Builder for any costs and
expenses incurred by Declarant and/or the Merchant Builder in correcting any violation by any
Owner or the Community Association of this Section.
7.25 Fire Suppression Zones. Certain Residential Lots in the La Costa Greens
Community are included within the Fire Suppression Zones, for which there are certain
guidelines and regulations with respect to the use and maintenance thereof by the Owners,
imposed by the City and other Governmental Agencies. Each Owner whose Residential Lot is
within a Fire Suppression Zones shall be required to comply with the requirements imposed by
the City, including without limitation, Section 4.7.9 of the Master Plan for the Villages of La
Costa and any other applicable guidelines or regulations as may be adopted by the City, the
County, or other Governmental Agency from time to time. By accepting a deed to a Residential
Lot in the La Costa Oaks Community, each Owner acknowledges that there may be restrictions
on flammable structures, trees or shrubs in the Fire Suppression Zone. Each Owner shall comply
with the restrictions on the Fire Suppression Zones set forth on Exhibit "E" attached hereto and
incorporated herein and any additional restrictions which may be set forth in a Supplementary
Declaration. All Fire Suppression Zones within the Covered Property shall be designated in a
Supplementary Declaration.
7.26 Window Coverings. Temporary window coverings ("Temporary Window
Coverings") in a design and color that does not conflict with the surrounding Improvements (but
excluding aluminum foil, newspapers, or any other contrasting material) shall be permitted for a
maximum period of sixty (60) days from the date that a Residential Lot is conveyed to an Owner
by Declarant or a Merchant Builder. Except as specifically provided above, no Temporary
Window Coverings shall be used to cover any door or window of any Residence. All window
coverings (including Temporary Window Coverings) shall be of a neutral color harmonious with
and not conflict with the color scheme of the exterior wall surface of the Residence on the
Residential Lot.
7.27 Exterior Painting. All exterior painting of a Residence shall be subject to the
approval of the Architectural Committee, unless the painting is of the same color as the then
current color of the exterior of the Residence.
7.28 Outdoor Lighting Restrictions. All backyard lighting installed in Residential Lots
within the Habitat Preserve Adjacent Areas shall be shielded to prevent any light spill over onto
the Habitat Preserve Areas. Shielding can consist of the installation of fixtures that physically
direct light away from the Habitat Preserve Adjacent Areas or landscaping berms or other
barriers at the edge of the Residential Lots that prevent light over spill into the Habitat Preserve
Areas.
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7.29 Sight Distance Corridors. No structure, fence, wall, tree shrub sign or other
object over thirty (30) inches above the street level may be placed or permitted to encroach
within the areas identified as a sight distance corridor on the Final Maps as specified in the City
Standard Public Street Design Criteria (Section 8.B.3.). No structure, fence, wall tree, street,
sign or other object shall be placed or permitted on the Property within the CalTrans corner sight
distance corridors as shown on the Final Maps as specified on the City standard public street
design criteria Section 8.B.1. Each Owner as to any Residential Lot owned by such Owner and
the Association as to any Community Association Property and Common Maintenance Area
shall comply with these restrictions.
7.30 Plant Species. Neither the Community Association nor any Owner shall plant or
use in its landscaping any Invasive Plant Species in any Habitat Preserve Adjacent Areas. The
Invasive Plant Species are set forth in Exhibit "F" attached hereto and incorporated herein.
7.31 Perimeter Wall and Fence. In no event can any Owner make any alterations to
any Perimeter Wall and Fence or remove or replace any Perimeter Wall and Fence, or modify
any Perimeter Wall and Fence in connection with any construction on an Owner's Lot. All
alterations, repairs and replacements of the Perimeter Walls and Fences can only be made by the
Community Association.
7.32 Open Space Lots. Pursuant to the City Requirements, there shall be no
development of Lot Numbers 4, 21, 22, 24, 26, 27, 29, 31, 34, 36, 38, 39, 41 and 44 of Map
Number 99-03, including but not limited to fences, walls, decks, storage buildings, pools, spas,
stairways and landscaping (other than that approved as part of the grading plan, improvement
plan, biological revegetation program or landscaping plan). Such lot numbers and/or legal
descriptions of the lots may be modified or supplemented in a Supplementary Declaration.
Additionally, the Community Association shall not remove any native vegetation except on
written order of the City Fire Department for fire prevention purposes , or upon written approval
of the Planning Director based upon a request from the Community Association accompanied by
a report from a qualified arborist/botanist indicating the need to remove specified trees and/or
plants because of disease or impending danger to adjacent Residences. For areas containing
native vegetation the report required to accompany the request shall be prepared by a qualified
biologist.
7.33 Indemnification. Each Owner shall be liable to the remaining Owners for any
damage to the Community Association Property and Common Maintenance Areas that may be
sustained by reason of the negligence of that Owner, or the Owner's Invitees.
ARTICLE 8
ASSOCIATION PROPERTY. COMMON MAINTENANCE AREA
AND MAINTENANCE RESPONSIBILITIES
8.1 Maintenance and Use of Community Association Property. The Community
Association shall maintain the Community Association Property and Common Maintenance
Areas in a good condition of maintenance and repair reasonably consistent with the level of
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maintenance reflected in the most current Budget and in accordance with the obligations and
schedules for maintenance set forth in the Maintenance Manual.
8.2 Trail System. The Community Association shall maintain the Trail Systems
unless the City accepts the dedication of any portion of the Trail Systems, in which case the City
shall be responsible for the maintenance of the portions of the Trail System where the dedication
was accepted. There is no guarantee that the City will accept and be responsible for the
maintenance of all or any portion of the Trail System.
8.3 Compliance with Best Management Practices. Each Owner and the Community
Association shall comply with all Best Management Practices. The Community Association
shall also comply with all Best Management Practices.
8.4 Common Maintenance Area. The Common Maintenance Area shall include
portions of Lots and adjacent public property (including all medians within any streets located
within the La Costa Greens Community except median landscaping located within Alga Road
and El Camino Real) and any other lots or easements. The Community Association shall
maintain the Common Maintenance Areas in a good condition of maintenance and repair. 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. The obligation of the Community Association to maintain the
Common Maintenance Area shall commence in phases as the maintenance obligations for
portions of the Common Maintenance Area are assigned to the Community Association by
Declarant or are the subject of Common Maintenance Area easements or licenses entered into by
Declarant and the Community Association.
8.4.1 Obligation to Maintain Certain Public Areas. Some of the areas which
may become subject to Community Association maintenance may include entry monuments,
trails, parkways or other improvements in public general utility easement areas or other rights of
way, and a Declarant shall have the right to transfer such maintenance and related obligations to
the Community Association. For example, a Declarant may enter into "Encroachment Removal
Agreements" with the City which provide for maintenance, indemnity, insurance and related
obligations. All such obligations shall be automatically transferred to the Community
Association at such time as the Community Association becomes obligated to maintain the area.
The Community Association will be obligated to maintain a particular public area from and after
the date specified by a Declarant in this Community Declaration, a Notice of Declaration of
Annexation or other instrument by which such maintenance obligation is transferred to the
Community Association. However, maintenance by the Community Association is subject to the
City allowing such maintenance.
8.5 Community Association Maintenance. The Community Association shall
maintain and provide for the maintenance of all the Community Association Property and
Common Maintenance Area and all Improvements thereon, including any trails, in good repair
and appearance as set forth in this Declaration and in accordance with the requirements of the
City and the Maintenance Manual. The Community Association is obligated to comply with all
the maintenance obligations and schedules set forth in the Maintenance Manual provided by
Declarant for the Community Association Property and Common Maintenance Areas. The
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Community Association shall provide landscaping and gardening properly to maintain and
periodically replace when necessary the trees, plants, grass and other vegetation placed in the
Community Association Property and Common Maintenance Area pursuant to landscape plans
approved by the City. The Community Association shall maintain all concrete terrace drains
located within the Community Association Property and Common Maintenance Area in good
working condition. Unless otherwise specified in a Supplementary Declaration, the Community
Association will maintain the cluster mailboxes in the La Costa Greens Community. All brush
on the Community Association Property and Common Maintenance Areas shall be maintained in
accordance with the specifications of the City Landscape Guidelines Manual. The Community
Association shall have the right to enter onto any Lot (but not within the Residence of any
Residential Lot) as may be necessary for the construction, maintenance or emergency repair of
the Community Association Property 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. The drainage facilities shall be maintained by the
Community 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. Any damage caused to a Lot by entry of the
Community Association shall be repaired by the Community Association at its expense. The
Community Association shall, retain the services of consultants to periodically review and
inspect the Community Association Property and Common Maintenance Area to ensure
adequacy of the Community Association's maintenance program.
8.6 Commencement of Maintenance. Notwithstanding any conveyance of
Community Association Property to the Community Association, the Community Association's
responsibility to maintain the Community Association Property located in any Phase shall not
begin until (i) the Community Association Property is completed in accordance with the plans
approved by the City and (ii) annual Assessments in such Phase have commenced; except that, if
such Phase consists of only Community Association Property, the Community Association's
maintenance responsibility therefor shall commence on the later to occur of (a) completion of the
Community Association Property in accordance with the plans therefor approved by the City, or
(b) the first day of the month immediately following the month in which the deed is recorded
conveying such property to the Community Association. Notwithstanding the foregoing, if the
contractors or subcontractors of Declarant or a Merchant Builder are contractually obligated to
maintain the landscaping or other Improvements on the Community Association Property, the
Community Association shall not interfere with the performance of such warranty or other
contractual maintenance obligations. Such maintenance performed by the contractors or
subcontractors of Declarant or a Merchant Builder shall not postpone the commencement of
Regular Assessments pursuant to this Declaration nor entitle an Owner to claim any offset or
reduction in the amount of such Assessments. If the Community Association Property or any
other portion of the Community Association Property is dedicated to and accepted for
maintenance by a Governmental Agency, then the Community Association may, but need not,
maintain the area if the Governmental Agency either fails to maintain the area or elects to cease
maintaining the area.
8.7 Storm Water Treatment Obligations. The Community Association shall maintain
in good condition and repair all storm water quality treatment facilities located in the Community
Association Property and Common Maintenance Areas and Public Use Areas and within any
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areas that are subject to any encroachment removal agreements as identified in a Supplementary
Declaration. Storm water quality treatment facilities are comprised of flow-based treatment units
(mechanical devises) ("Flow Based Units") and volume-based basins (extended detention basins)
("Volume Based Units") (collectively, "Storm Water Treatment Facilities"). Flow-based units
shall be inspected periodically by the Community Association to assure their condition to treat
anticipated runoff. Soon after installation, the condition of the Flow Based Units shall be
checked after every runoff event for the first 30 days. Proper inspection includes a visual
observation to ascertain whether the Flow Based Unit is functioning properly and measuring the
amount of deposits in the Flow Based Unit. During the wet season, Flow Based Units shall be
inspected at least once every thirty (30) days. Floatables shall be removed and sumps cleaned
when the sump storage exceeds eighty-five percent (85%) percent of capacity. The volume
based units operational performance are effected by mowing, control of pond vegetation,
removal of accumulated bottom sediments, removal of debris from all inflow and outflow
structures, unclogging of orifice perforations, etc. Periodic inspections shall be performed by the
Community Association following each significant storm. These basins shall be inspected at
least twice a year to evaluate facility operation. Grass areas in and around these basins shall be
mowed at least twice annually to limit vegetation height to eighteen (18) inches. Accumulated
sediment shall be removed from the lower stage of the basin, when the sediment volume exceeds
twenty percent (20% )of the accumulations zone or when inlet or outlet structures become
impaired. Sediment shall be cleared from the sedimentation chamber at least once every ten (10)
years. Maintenance, monitoring and inspection reports for all Storm Water Quality Treatment
Facilities shall be the responsibility of the Community Association. All project records for
monitoring and reporting in accordance with the Storm Water Pollution Prevention Plan for the
La Costa Greens Community shall be the responsibility of the Community Association. The
Community Association may contract with service providers for the maintenance and inspections
for the Storm Water Treatment Facilities, however, the filing of reports associated with
monitoring and inspections shall be the responsibility of the Community Association.
The Community Association shall, on an annual basis, prepare a compliance report,
based upon a site inspection, which certifies that the post construction activities for any Storm
water Treatment Facilities located within any Community Association Property or Common
Maintenance Areas are in compliance with the requirements of the SWPPP.
8.8 Drainage Facilities. The Community Association shall maintain in good repair
and condition all drainage facilities located in the Community Association Property and
Common Maintenance Area and Public Use Areas (to the extent required by the City), including,
but not limited to, vegetated swales, riprap swales, concrete terrace drains, inlets, cleanouts,
subsurface drainage pipes, and outlets.
8.9 Repair and Maintenance by Owner. Each Owner shall keep and maintain in good
repair and appearance all portions of his or her Residential Lot and Improvements thereon (other
than that portion the maintenance of which is the responsibility of the Community Association or
a public maintenance assessment district), including, but not limited to, any fence or wall,
concrete terrace drain or drainage swales which is located on the Owner's Lot. The Owner of
each Residential Lot shall water, weed, maintain and care for the landscaping located on his or
her Residential Lot (other than that portion the maintenance of which is the responsibility of the
Community Association or a public maintenance assessment district) so that the same presents a
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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
Community Association or a public maintenance assessment district in connection with the
maintenance of the Community Association Property or Common Maintenance Area. Without
limiting the generality of the foregoing, except for the obligations of the Community Association
to repair and maintain any Common Maintenance Area, situated on a Residential Lot every
Owner shall perform the maintenance obligations set forth below.
8.9.1 Exterior of Residence. Each Owner shall maintain the exterior of the
Owner's Residence and/or other Improvements on such Owner's Residential Lot, including,
without limitation, the interior of any walls and fences (and the exterior of any walls and fences,
if the exterior is not maintained by another Owner) in good condition and repair and in
accordance with the Community Design Standards and all requirements of the City.
Landscaping shall be installed and maintained in accordance with the La Costa Greens
maintenance plan or as otherwise approved by the Planning Director for the City.
8.9.2 Landscaping. The Owner of each Residential Lot shall water, weed,
maintain and care for the landscaping located on his or her Residential Lot (other than that
portion the maintenance of which is the responsibility of the Community Association or a public
maintenance assessment district) so that the same presents a neat and attractive appearance, free
from weeds, trash and debris and in accordance with any other standards for maintenance set
forth in this Declaration and in accordance with all requirements of the City.
8.9.3 Interior Fencing Between Two Residential Lots. For any fencing which
separates two (2) Residential Lots, each Owner shall have the obligation to maintain the interior
of the fence and the Owners shall share, on an equitable basis, the cost of replacing such fencing.
The Owner of each affected portion of the Covered Property upon which a party wall or fence is
located shall have a reciprocal, non-exclusive easement to the Covered Property immediately
adjacent to the interior fence for the limited purpose of maintaining the party wall or fence.
8.9.4 Fencing Separating Residential Lots and Community Associations
Property. Any Owner whose fencing borders Community Association Property shall maintain
the interior of the fencing facing the Owner's Residential Lot and the maintenance of the exterior
and repair and replacement of the fencing shall be the responsibility of the Community
Association.
8.10 Community Association's Right to Repair Neglected Lots. If an Owner of a
Residential Lot should fail to maintain such Owner's Residential Lot and Improvements on the
Residential Lot in a manner satisfactory to the Community Board, the Community Association,
after approval by two-thirds (2/3) vote of the Community Board, shall have the right (but not the
obligation) through its agents and employees, to enter onto the Residential Lots solely for the
purpose of correcting the violation on the Residential Lot. However, such entry shall be subject
to Section 4.1.2 of this Declaration. Entry onto a Residential Lot by the Community Association
shall be made with as little inconvenience to the Owner as possible and any damage caused by
the Community Association shall be repaired by the Community Association. The cost of
exterior maintenance shall be added to and become a part of the assessment to which the Lot is
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subject. There is hereby granted an easement in favor of the Community Association to enter
onto each Residential Lot to correct such violations as set forth in this Section.
8.11 Landscape and Irrigation Maintenance. All landscaping by the Community
Association must be maintained in accordance with the La Costa Greens maintenance plan or as
otherwise approved by the Planning Director of the City. The Community Association shall
employ the services of a professional landscape architect, maintenance contractor or other such
professional person to assist the Community Association in performing its duties hereunder. The
inspectors shall provide written reports of their inspections to the Declarant and the Community
Association promptly following completion thereof. The written reports shall identify any items
of maintenance or repair which either require current action by the Community Association or
will need further review and analysis. Such written reports shall specifically include a review of
all irrigation and drainage systems within the La Costa Greens Community. The Community
Board shall report the contents of such written reports to Declarant (if not already provided by
the inspector directly) and to the Members of the Community Association at the next meeting of
the Members following receipt of such written reports or as soon thereafter as reasonably
practicable and shall include such written reports in the minutes of the Community Association.
The Community Board shall promptly cause all matters identified as requiring attention to be
maintained, repaired, or otherwise pursued in accordance with prudent business practices and the
recommendations of the inspectors. Should such inspection require the inspection of any
Residential Lot, there is hereby created a nonexclusive easement in favor of the Community
Association, and its officers, agents, employees and independent contractors, to conduct such
inspections and to correct any violations of this Declaration of the other Governing Documents
by an Owner which entry shall be subject to the provisions of this Declaration. Any damage to
any structure, landscaping or other improvements caused by the Community Association, or any
of its officers, agents, employees or independent contractors, while performing such
maintenance, repair or replacement work shall be repaired by the Community Association at its
sole cost and expense.
ARTICLE 9
INSURANCE AND CONDEMNATION
// is important that the Community Association maintain insurance. This Article
discusses the insurance which the Community Association will be required to maintain and also
discuss the obligations of the Owners for insurance.
9.1 Insurance. The Community Association, to the extent available, shall obtain and
continue in effect, in its own name, the types of insurance set forth below.
9.1.1 Fire and Extended Coverage Insurance. The Community Association shall
keep (i) any Improvements on the Community Association Property 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 personal property owned by the Community
Association insured with coverage in the maximum insurable fair market value of personal
property as determined annually by an insurance carrier selected by the Community Association.
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Insurance proceeds for improvements in the Community Association Property and Common
Maintenance Area and personal property owned by the Community Association shall be payable
to the Community Association. Insurance proceeds for Improvements in the Community
Association Property and/or personal property owned by the Community Association shall be
payable to the Community Association. In the event of any loss, damage or destruction to the
Community Association Property (excluding Residential Lots), the Community Association shall
cause the same to be replaced, repaired or rebuilt in accordance with the provisions of this
Declaration. Premiums for all insurance carried by the Community Association are a Common
Expense.
(a) Description of Policy Coverages. The policy shall cover the
following real and personal property:
(i) Community Association Property. All Improvements, if
any, within the Community Association Property and Common Maintenance Areas; but
excluding land, foundations, excavations, and other items typically excluded from property
insurance coverage; and
(ii) Landscaping. Lawn, trees, shrubs and plants located in the
Community Association Property and Common Maintenance Areas.
(b) Covered Cause of Loss. The policy shall provide coverage against
losses caused by fire and all other hazards normally covered by a "special form" policy or its
equivalent.
(c) Primary. The policy shall be primary and noncontributing with
any other insurance policy covering the same loss.
(d) Endorsements. The policy shall contain such endorsements as the
Community Board in its discretion shall elect.
(e) Waiver of Subrogation. Except as provided in Section 7.23, the
Community Association waives all rights of subrogation against the Owners and their Invitees.
All insurance policies obtained by the Community Association shall include a waiver of all
subrogation rights against any Owner and their Invitees; provided, however, that a failure or
inability of the Community Association to obtain such a waiver shall not defeat or impair the
waiver of subrogation rights between the Community Association and the Owners and their
Invitees set forth herein.
9.1.2 Liability Insurance. The Community Association shall procure and keep
in force public liability insurance in the name of the Community Association and the Owners
against any liability for personal injury or property damage resulting from any occurrence in or
about the Community Association Property or Common Maintenance Area with such minimum
limits are set forth in Section 1365.9 of the California Civil Code, insuring against liability for
bodily injury, death and property damage arising from the Community Association's activities or
with respect to property the Community Association maintains or is required to maintain
including, if obtainable, a cross-liability endorsement insuring each insured against liability to
each other insured.
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9.1.3 Fidelity Bond. The Community Association shall maintain a fidelity bond
in an amount equal to the amount of funds held by the Community Association during the term
of the bond but not less than one-fourth (1/4) of the annual Regular Assessments plus reserves,
naming the Community Association as obligee and insuring against loss by reason of the acts of
the Community Board, officers and employees of the Community Association, and any
management agent and its employees, whether or not such persons are compensated for their
services.
9.1.4 Worker's Compensation Insurance. The Community Association shall
maintain worker's compensation insurance to the extent necessary to comply with all applicable
laws of the State of California or the regulations of any governmental body or authority having
jurisdiction over the La Costa Greens Community.
9.1.5 Directors and Officers. The Community Association shall obtain directors
and officers insurance to cover the officers and directors of the Community Association against
liability for their negligent acts or omissions while acting in their capacity as officers and
directors. The limits of such insurance shall not be less than One Million Dollars for all claims
arising out of a single occurrence or such other minimum amount which meets the requirements
of California Civil Code Section 1365.7.
9.1.6 Other Insurance. The Community Association shall maintain other types
of insurance as the Community Board determines to be necessary to fully protect the interests of
the Owners. Anything contained herein to the contrary notwithstanding, the Community
Association shall maintain such insurance coverage as may be required by the Federal National
Mortgage Community Association ("FNMA") or the Federal Home Loan Mortgage Corporation
("FHLMC") so long as FNMA or FHLMC, respectively, holds a mortgage on or owns any Lot.
9.2 Copies of Policies. Copies of all insurance policies (or certificates) showing the
premiums to have been paid shall be retained by the Community Association and open for
inspection by Owners at any reasonable time(s). All insurance policies shall (i) provide that they
shall not be cancelable by the insurer without first giving at least ten (10) days' prior notice in
writing to the Community Association, and (ii) if obtainable, contain a waiver of subrogation by
the insurer(s) against the Community Association, Community Board and Owners.
9.2.1 Insurance to Satisfy Civil Code. Section 1365.7 of the California Civil
Code provides for a partial limitation on the liability of volunteer officers and directors of the
Community Association, provided that certain requirements, as set forth in the Code Section are
satisfied. The requirements include that general liability insurance and officers' and directors'
liability insurance be carried by the Community Association in specified amounts. The
Community Association shall maintain general liability insurance and officers' and directors'
liability insurance in amounts which satisfy the requirements of the California Civil Code
Section 1365.7 or any successor statute or law to limit the liability of volunteer officers and
directors of the Community Association.
9.2.2 Reimbursement of Community Association. In the event any insurance
policy deductible amount relating to an Owner's property loss is charged to the Community
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Association, the Owner shall reimburse the Community Association upon written demand for the
amount charged to the Community Association.
9.3 Review of Insurance. The Community Board shall review the adequacy of all
insurance at least once every year. The review shall include a replacement cost appraisal of all
insurable Improvements within the Community Association Property without respect to
depreciation. The Community Board shall adjust and modify the policies to provide coverage
and protection that is customarily carried by and reasonably available to prudent owners of
similar property in the area in which the La Costa Greens Community is situated.
9.4 Individual Insurance. Each Owner shall maintain property insurance against
losses to real and personal property located within the Residential Lot, including the Residence
and to any upgrades or Improvements to any fixtures or Improvements located within the
Residential Lot and liability insurance against any liability resulting from any injury or damage
occurring within the Residential Lot. The Community Association's insurance policies will not
provide coverage against any of the foregoing. All Owners hereby waive all rights of
subrogation against the Community Association, and any insurance maintained by an Owner
must contain a waiver of subrogation rights by the insurer as to the Community Association;
provided, however, that a failure or inability of an Owner to obtain such a waiver shall not defeat
or impair the waiver of subrogation rights between the Owners and the Community Association
set forth herein. If any Owner violates this provision and, as a result, there is a diminution in
insurance proceeds otherwise payable to the Community Association, the Owner will be liable to
the Community Association to the extent of the diminution. The Community Association may
levy a Special Services Assessment against the Owner's Residential Lot to collect the amount of
the diminution.
9.5 Condemnation. If the Community Association Property 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 Community Association.
ARTICLE 10
DESTRUCTION OF IMPROVEMENTS
The Community Association will have certain obligations if there is damage or
destruction to Community Association Property or Common Maintenance Areas. As an Owner,
you will also have certain obligations if your Residence or other Improvements are destroyed.
This Article describes those obligations and responsibilities.
10.1 Restoration of Improvements. In the event of partial or total destruction of
Improvements upon the Community Association Property, it shall be the duty of the Community
Association to restore and repair the same to its former condition (or a condition substantially
similar to the former condition or as may be required to comply with the current Governmental
Regulations) as promptly as practical, as hereinafter set forth.
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10.1.1 Insurance Proceeds Adequate. If the cost of repairing or rebuilding the
Community Association Property does not exceed the amount of insurance proceeds initially
offered or paid by the insurance carrier by more than ten percent (10%) of the cost of
reconstruction, then the following shall apply:
(a) All insurance proceeds shall be paid to a commercial bank or trust
company designated by the Community Board to be held for the benefit of the Community
Association and the Owners and their Mortgagees, as their interests shall appear.
(b) The Community Board shall levy a Reconstruction Assessment
against the Owners in the same manner as provided in Article 5 equal to the difference between
the cost of repairing or rebuilding and the amount of available insurance proceeds, which sums
shall be payable into the fund held by the insurance trustee. The Community Board may
advance the amount of the Reconstruction Assessment to the insurance trustee from the
Community Association's Maintenance Funds or Reserves.
(c) When the amount held by the insurance trustee is sufficient to pay
the costs of repair and reconstruction, the Community Board shall thereupon contract for the
repair or reconstruction of the Improvements, paying the cost of such work from the amount held
by the insurance trustee, said repair or reconstruction to be for the purpose of returning the
Improvements substantially to their appearance and condition immediately prior to the casualty.
(d) The Community Association may rebuild such damaged or
destroyed common facilities in a different manner, or in a different location on the Community
Association Property, provided that such Community Board action shall require consent of at
least eighty percent (80%) of the Community Board. If the Community Board cannot reach such
an eighty percent (80%) decision, any such change shall require the vote or written assent of the
Members representing at least a majority of the Voting Power of the Community Association,
and the written consent of a majority of the Mortgagees. In any event, if such changed plans
require additional capital so as to constitute a Capital Improvement Assessment, the written
assent of the Members, cast through Delegates, representing at least a majority of the Voting
Power of the Community Association must be obtained if so required by the requirements of
Article 4 of this Declaration.
10.1.2 Insurance Proceeds Inadequate. If the cost of such repairing or rebuilding
exceeds the amount of available insurance by more than ten percent (10%) of the cost of
reconstruction, then all insurance proceeds shall be deposited as provided in the Section above
entitled "Insurance Proceeds Adequate" and the Community Board shall require a determination
by written assent or vote of the Members representing at least a Majority of the Voting Power as
to whether a Reconstruction Assessment equal to the difference between available insurance
proceeds and the cost of such repairing or rebuilding shall be levied. Such majority vote must
include at least a two-thirds (2/3rds) majority of the Class A Members. If the Members
determine not to levy such assessment, then the Community Board shall use the insurance
proceeds available to make such restoration or repair as soon as reasonably possible or to clear
the site of the damaged improvements and landscape the site for park and the costs thereof shall
be paid for with the insurance proceeds and in such case, any deficiency to remove the damaged
Improvements and install landscaping may be raised by borrowing such proceeds and levying the
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finance and other costs thereof as part of a Reconstruction Assessment or by paying such costs
directly and levying a Reconstruction Assessment in an amount determined by the Community
Board. In the event any excess insurance proceeds remain, the Community Board, in its sole
discretion, may retain such sums in the general funds of the Community Association or distribute
pro-rata all or a portion thereof to the Members, subject to the prior rights of Mortgagees whose
interest may be protected by insurance policies carried by the Community Association. The
rights of the Owner and the Mortgagee of his or her Lot as to such pro-rata distribution shall be
governed by the provisions of the Mortgage encumbering such Lot.
10.1.3 Residential Lots. In the event of partial or total damage or destruction of
any Residential Lot within the La Costa Greens Community, the Owner shall either:
(a) diligently commence to rebuild the same, if the insurance proceeds
and other funds available to the Owner are sufficient to pay the costs of such rebuilding; or
(b) if there are not sufficient funds to rebuild, clear and level the
Residential Lot, remove all wreckage, foundations, slabs, debris and remains of the building or
buildings therefrom and leave the same in a level, clean and landscaped condition.
Upon reconstruction, the Residence shall be rebuilt substantially in accordance with the
original plans and specifications therefor; provided, however, that the exterior appearance
thereof shall substantially resemble the appearance in form and color prior to such damage and
destruction. Notwithstanding the foregoing, however, the Owner of such damaged
Improvements may reconstruct or repair the same in accordance with new or changed plans or
specifications with the prior written approval of the Architectural Committee.
ARTICLE 11
DEVELOPMENT RIGHTS
Declarant and the Merchant Builders will, during the course of the La Costa Greens
Community, be developing and marketing for sale or rental, the residential lots within the La
Costa Greens Community. In order to assure the Declarant and the Merchant Builder that these
rights will not be limited, the Declarant and the Merchant Builders are reserving certain rights
for development. This Article sets forth those rights which are intended to facilitate the overall
development of the La Costa Greens Community.
11.1 Limitations of Restrictions. Declarant and the Merchant Builders are undertaking
the work of developing Residential Lots and other Improvements within the La Costa Greens
Community. The completion of the development work and the marketing and sale, rental and
other disposition of the Residential Lots is essential to the establishment and welfare of the
Covered Property and the Additional Property as a first-class residential community. In order
that the work may be completed and the La Costa Greens Community be established as a fully
occupied residential community as rapidly as possible, nothing in this Declaration shall be
interpreted to deny Declarant or, to the extent provided below, the Merchant Builders the rights
set forth in this Article.
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11.2 Rights of Access and Completion of Construction. Declarant, and to the extent
approved in writing by the Declarant, the Merchant Builders and their contractors and
subcontractors shall have the rights set forth below.
11.2.1 Access. Declarant, the Merchant Builders and their contractors and
subcontractors shall have the right to obtain reasonable access over and across the Community
Association Property and Common Maintenance Areas within any Residential Lot owned by it
whatever is reasonably necessary or advisable in connection with the completion of the La Costa
Greens Community and the maintenance thereof.
11.2.2 Construct Improvements. Declarant, and to the extent approved in writing
by the Declarant, the Merchant Builders and their contractors and subcontractors shall have the
right to erect, construct and maintain on the Community Association Property of the La Costa
Greens Community or within any Residential Lot owned by it such structures or Improvements,
including, but not limited to, sales offices, flags, balloons, banners and signs, as may be
reasonably necessary for the conduct of its business to complete the work, establish the La Costa
Greens Community as a residential community and dispose of the La Costa Greens Community
in parcels by sale, lease or otherwise, as determined by Declarant in its sole discretion and to
perform or complete any work to improvements required for Declarant and the Merchant
Builders to obtain a release of any bonds posted by Declarant or the Merchant Builders with the
City.
11.2.3 Grant Easements. Declarant, and the Community Association, shall have
the right to establish and/or grant over and across said Community Association Property such
easements and rights of way on, over, under or across all or any part thereof to or for the benefit
of the State of California, the City or County or any other political subdivision or public
organization, or any public utility entity or cable television provider, for the purpose of
constructing, erecting, operating and maintaining facilities and Improvements thereon, therein or
thereunder at that time or at any time in the future, including: (i) poles, wires and conduits for
transmission of electricity, providing telephone service and cable television service to the La
Costa Greens Community and for the necessary attachments in connection therewith; and
(ii) public and private sewers, sewage disposal systems, storm water drains, land drains and
pipes, water systems, sprinkling systems, water, heating and gas lines or pipes and any and all
equipment in connection therewith. The Community Association Property shall be subject to
any dedication stated in the Subdivision Map for the La Costa Greens Community of an
easement for public use for installation, maintenance and operation of facilities for public
utilities over all of the Community Association Property. Said public utilities easement shall
inure and run to all franchised utility companies and to the City or County and shall include the
right of ingress and egress over the Community Association Property by vehicles of the City or
County and such utility companies to properly install, maintain, repair, replace and otherwise
service such utility facilities. The grant of said public utility easement shall not be interpreted to
imply any obligation or responsibility of any such utility company or the City or County for
maintenance or operation of any of the Community Association Property or the facilities located
thereon or the repair, replacement or reconstruction thereof except as occasioned by such utility
companies or City or County of the utility facilities for which they are responsible. The
Community Association Property shall also be subject to any easements granted by the Declarant
to any public or private entity for cellular, cable or other similar transmission lines. The City and
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County furthermore is granted an easement across the Community Association Property and any
private streets situated within any portion of the La Costa Greens Community for ingress and
egress for use by emergency vehicles of the City or County.
11.2.4 Exemptions. Nothing in the Community Governing Documents limits and
no Owner or the Community Association will interfere with the right of Declarant to subdivide
and resubdivide any portion of the Covered Property or with the right of Declarant and Merchant
Builders, either directly or through their respective agents and representatives, to sell, resell, rent
or re-rent any portion of the Covered Property, or the right of Declarant or a Merchant Builder to
complete excavation, grading, construction of Improvements or other development activities to
and on any portion of the Covered Property owned by Declarant or a Merchant Builder, as
applicable, or to alter the foregoing and the construction plans and designs, or to construct such
additional Improvements as Declarant or a Merchant Builder deems advisable in the course of
developing the Covered Property so long as any Lot in the Covered Property or any portion of
the Community Association Property is owned by Declarant or a Merchant Builder. These rights
include, but are not limited to, carrying on by Declarant, the Merchant Builders, and their
respective agents and representatives of such grading work as may be approved by the
Governmental Agency having jurisdiction, and erecting, constructing and maintaining on the
Covered Property such structures, signs and displays reasonably necessary for the conduct of the
business of completing the work and disposing of the Covered Property and the Community
Association Property by sale, lease or otherwise. Each Owner, by accepting a deed to a
Residential Lot, acknowledges that any construction or installation by Declarant or a Merchant
Builder may impair the view of such Owner, and each Owner consents to such impairment.
This Declaration does not limit the right of Declarant or, if approved in writing by
Declarant a Merchant Builder, at any time prior to acquisition of title to a Residential Lot by an
Owner from Declarant or a Merchant Builder, to establish on that Residential Lot, additional
licenses, easements, reservations and rights-of-way to itself, to utility companies, or to others as
reasonably necessary to the proper development, marketing and sale of the Covered Property and
Community Association Property. Declarant and, if approved in writing by Declarant, the
Merchant Builders may use any and all portions of the Community Association Property for
access to the sales and leasing facilities of Declarant and Merchant Builders. Declarant and, if
approved in writing by Declarant, Merchant Builders may use any structures or vehicles owned,
respectively, by Declarant or Merchant Builders in the Covered Property as model home
complexes, or real estate sales or leasing offices; provided that such uses within the Covered
Property shall terminate on the last Close of Escrow for the sale of a Residential Lot in the
Covered Property pursuant to a transaction requiring the issuance of a Public Report, at which
time Declarant or Merchant Builders, as the case may be, shall restore their respective structures
to their previous appearance. All or any portion of the rights of Declarant or a Merchant Builder,
as applicable, hereunder and elsewhere in this Declaration may be assigned by Declarant or such
Merchant Builder (with Declarant's prior written consent), as applicable, to any successor in
interest to any portion of Declarant's or Merchant Builder's interest in any portion of the
Covered Property or the Community Association Property (including without limitation, to any
Merchant Builder) by an express written assignment which specifies the rights of Declarant or
such Merchant Builder so assigned. Notwithstanding any other provision of this Declaration, for
so long as Declarant or a Merchant Builder owns any portion of the Covered Property or the
Community Association Property, Declarant or such Merchant Builder's prior written approval is
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required before any amendment to this Article 12 or any other provision effecting the rights or
exemptions of Declarant hereunder, is effective.
11.3 Size and Appearance of La Costa Greens Community. Declarant shall not be
prevented from increasing or decreasing the number of Residential Lots that may be annexed to
the La Costa Greens Community or from changing the exterior appearance of Community
Association Property structures, the landscaping or any other matter directly or indirectly
connected with the La Costa Greens Community in any manner deemed desirable by Declarant,
if Declarant obtains governmental consents required by law.
11.4 Marketing Rights. Subject to the limitations of this Declaration, Declarant and
the Merchant Builders shall have the right to: (i) maintain model homes, sales offices, storage
areas and related facilities in any unsold Residential Lots or Community Association Property
within the La Costa Greens Community as are necessary or reasonable, in the opinion of
Declarant, for the sale or disposition of the Residential Lots; (ii) make reasonable use of the
Community Association Property, Common Maintenance Areas and facilities situated thereon
for the sale of Residential Lots; (iii) post signs, flags and banners in connection with its
marketing; and (iv) conduct their business of disposing of Residential Lots by sale, lease or
otherwise.
11.5 Declarant Rights. The rights of Declarant under this Declaration may be assigned
to any successor(s) by an express assignment in a recorded instrument, including without
limitation, a deed, option or lease. This Declaration shall not be construed to limit the right of
Declarant at any time prior to such an assignment to establish additional licenses, reservations
and rights-of-way to itself, to utility companies or to others as may be reasonably necessary to
the proper development and disposal of property owned by Declarant.
11.6 Amendment. The provisions of this Article may not be amended without the
consent of Declarant until either (i) all of the Additional Property has been annexed to the La
Costa Greens Community and all of the Residential Lots in the La Costa Greens Community
owned by Declarant or a Merchant Builder have been sold or (ii) five (5) years after the original
issuance of the most recent Public Report for a Phase in the La Costa Greens Community
whichever occurs first.
11.7 Declarant Representative. Until the later to occur of the date on which Declarant
(i) no longer owns a Lot in the Covered Property or (ii) no longer has an assignment of a
Merchant Builder's voting rights or (iii) cannot unilaterally annex property to the Covered
Property, the Community Association shall provide Declarant with written notice of all meetings
of the Community Board as if Declarant were an Owner and Declarant shall be entitled, without
obligation, to have a representative present at all such Community Board meetings ("Declarant's
Representative"). The Declarant's Representative shall be in addition to any representative
which the Declarant may have on the Community Board and, if Declarant elects to have an
additional representative, the Declarant's Representative may be present in an advisory capacity
only and shall not be a Community Board member or have any right to vote on matters coming
before the Community Board.
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ARTICLE 12
SUPPLEMENTARY DECLARATIONS
In certain situations, the Declarant may record Supplementary Declarations to impose
additional covenants on portions of the Covered Property or to make technical or minor
correction to this Declaration or the other Governing Documents. Declarant may also de-annex
some of the property already covered by this Declaration. That process is also covered in this
Article.
12.1 Covenants Running with the Land. Declarant may transfer all or any portion of
the Covered Property or the Additional Property to a builder under a grant deed wherein
Declarant reserves the right to annex such property and subject it to this Declaration. The
restriction on the Additional Property wherein it may be made subject to this Declaration upon
the recordation of a Supplementary Declaration is hereby declared to be an equitable servitude
upon the Additional Property in favor of the Covered Property and shall run with the land and be
binding on and inure to the benefit of all parties having or acquiring any right, title or interest, in
such Additional Property.
12.2 Supplementary Declarations. Supplementary Declarations may be recorded by
Declarant with respect to a Phase, which may further delineate any Community Association
Property, Common Maintenance Area or Special Benefit Area or Special Benefit Maintenance
Areas within such Phase or contain complementary additions and modifications as provided in
this Section 17.3 or make minor or technical corrections to this Declaration. If the signature or
consent of any Merchant Builder which owns any portion of the Covered Property subject to a
Supplementary Declaration is required, such Merchant Builder shall execute and consent to any
such Supplementary Declaration.
12.3 Mergers or Consolidations. Upon a merger or consolidation of the Community
Association with another association, the Community Association's properties, rights and
obligations may, by operation of law, be transferred to the surviving or consolidated association,
or, alternatively, the properties, right and obligations of another association may, by operation of
law, be added to the properties, rights and obligations of the Community Association as a
surviving corporation pursuant to a merger. The surviving or consolidated association may
administer the covenants, conditions and restrictions established by this Declaration within the
La Costa Greens Community, together with the covenants and restrictions established upon any
other property as one plan.
12.4 De-Annexation. Declarant may delete all or any portion of the Covered Property
from the coverage of this Declaration or any Supplementary Declaration, provided Declarant
and/or a Merchant Builder are the sole Owner(s) of all of the real property to be deleted and,
with respect to the Phase in which such Covered Property is located, no Lot has been conveyed
to a member of the homebuying public, no Community Association Property has been conveyed
to the Community Association and no Community Assessments have commenced; provided,
however, that the consent of any Merchant Builder which owns any portion of the real property
affected by such deletion and the consent of the City shall be required. Such deletion shall be
effective upon the recordation of a "Notice of Deletion of Territory," or other instrument signed
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by Declarant and consented to by any applicable Merchant Builder. Prior to annexation,
Declarant may also, upon recordation of a Supplementary Declaration, delete any portion of the
Additional Property by so designating such portion of land to be excluded from the Additional
Property in a Supplementary Declaration.
ARTICLE 13
RIGHTS OF LENDERS
The various lenders at the La Costa Greens Community may also require special rights.
This Article contains provisions for the benefit of many of the lenders.
13.1 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 Community Association Property, 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 Community Association Property from the Owner; First
Mortgagees making such payments shall be owed immediate reimbursement from the
Community 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 Community
Association.
13.2 Priority of Lien of Mortgagee. 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.
13.3 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 Community 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.
13.4 Approval of First Mortgagees. Except as provided by statute in case of
condemnation or substantial loss to the Lots or Community Association Property, 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 Community Association (excluding the vote of Declarant) have given their prior
written approval, the Community Association shall not:
13.4.1 Partition. By act or omission, seek to abandon, partition, subdivide,
encumber, sell or transfer the Community Association Property. The granting of easements or
leases or use agreements for public utilities or for other public purposes shall not be deemed a
transfer within the meaning of this Subsection;
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13.4.2 Allocation of Charges. Change the method of determining the obligations,
assessments, dues or other charges which may be levied against an Owner;
13.4.3 Maintenance. 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
Community Association Property and Common Maintenance Areas, walls or common fences
and driveways, or the upkeep of lawns and plantings in the La Costa Greens Community;
13.4.4 Insurance. Fail to maintain fire and extended coverage insurance on any
Community Association Property upon which Buildings have been constructed 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; or
13.4.5 Hazard Insurance. Use hazard insurance proceeds for losses to any
portion of the Community Association Property for other than the repair, replacement or
reconstruction of the Community Association Property.
13.5 Restoration of Community Association Property. Any restoration or repair of the
Community Association Property 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 Residential Lots
which have at least a majority of the Voting Power of the Community Association.
13.6 Professional Management. When professional management has been previously
required by a First Mortgage holder, a decision to establish self-management by the Community
Association shall require the consent of at least sixty-seven percent (67%) of the Voting Power
of Members of the Community Association and the approval of holders of First Mortgages on
Residential Lots, the Owners of which have at least fifty-one percent (51%) of the votes of
Residential Lots encumbered by Mortgages.
13.7 Notice to Mortgagees. Upon written request to the Community Association
identifying the name and address of the holder and the Residential Lot number or address, any
First Mortgage holder will be entitled to timely written notice of:
13.7.1 Any condemnation loss or any casualty loss which affects a material
portion of the project or any Residential Lot on which there is a First Mortgage held by the
Mortgage holder.
13.7.2 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;
13.7.3 Any lapse, cancellation or material modification of any insurance policy
or fidelity bond maintained by the Community Association; and
13.7.4 Any proposed action which would require the consent of a specified
percentage of Mortgage holders.
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13.8 Documents to be Available. The Community Association shall make available to
Owners and Mortgagees, and holders, insurers or guarantors of any First Mortgage, current
copies of the Declaration, the Community Bylaws, other rules concerning the project and the
books, records and financial statements of the Community 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, upon written request, be entitled to have an audited
statement for the immediately preceding fiscal year prepared at their expense if one is not
otherwise available. Any financial statement so requested shall be furnished within a reasonable
time following the request.
13.9 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 14
AMENDMENTS
This Declaration establishes the covenants, conditions and restrictions for the La Costa
Greens Community. It may be possible, in the future, that the Community Declaration will need
to be amended. This Article sets forth the procedures that must be followed, and the consents
that must be obtained in order to amend this Declaration.
14.1 Amendment. Except as may otherwise be stated in the Declaration, during the
period of time prior to conversion of the Class B membership in the Community Association to
Class A membership, this Declaration may be amended at any time and from time to time by the
vote or written consent of sixty-seven percent (67%) of the voting power of each class of
Members of the Community Association. Any amendment shall become effective upon
recording with the Office of the County Recorder of the County. After conversion of the Class B
membership in the Community Association to Class A membership, the Declaration may be
amended at any time and from time to time by the vote or written consent of (a) sixty-seven
percent (67%) of the total Voting Power of the Community Association, and (b) at least sixty-
seven percent (67%) of the Voting Power of Members of the Community Association other than
Declarant. Anything herein stated to the contrary notwithstanding, no material amendment may
be made to this Declaration without the prior written consent of Eligible Holders encumbering
fifty-one percent (51%) or more of the Lots within the Covered Property 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:
(a) The fundamental purpose for which the La Costa Greens was
created (such as a change from residential use to a different use);
(b) Assessments, assessment liens or the priority of assessment liens;
(c) Reserves for maintenance, repair and replacement of the
Community Association Property or Common Maintenance Area;
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(d) Responsibilities for maintenance and repairs;
(e) Insurance or fidelity bonds;
(f) Restoration or repair of the after a hazard damage or partial
(g) Rights to use the Community Association Property or Common
(h) Expansion or contraction of the Covered Property or the addition
or withdrawal of property to or from the Covered Property;
(i) Voting rights;
(j) Convertibility of Residential Lots into Community Association
Property or of Community Association Property into Residential Lots;
condemnation;
Maintenance Area;
Property;
Maintenance Area;
transfer his or her Lot;
(k) Redefinition of boundaries of any Community Association
(1) The interests in the Community Association Property or Common
(m) Leasing of Residential Lots;
(n) Imposition of any restrictions on the right of an Owner to sell or
(o) Any action to terminate the legal status of the Community
Association after substantial destruction or condemnation;
(p) The requirement of retention of professional management of the
Community Association;
(q) Any provision which is expressly for the benefit of Eligible
Holders or insurers or guarantors of Eligible Holders.
An addition or amendment to this Declaration shall not be considered material if it is for
the purposes of correcting technical errors or for clarification only. Any Eligible Holder of a
First Mortgage who received a written request to approve additions or amendments by certified
or registered mail, return receipt requested, who does not respond within thirty (30) days, shall
be deemed to have approved such addition or amendment. Notwithstanding the foregoing, the
percentage of a quorum or the voting power of the Community Association or of Members other
than the Declarant necessary to amend a special clause or provision of this Declaration shall not
be less than the prescribed percentage of affirmative votes required for action to be taken under
this clause or provision. An amendment or modification shall be effective when executed by the
President or Vice President and Secretary or Assistant Secretary of the Community Association
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who shall certify that the amendment or modification has been approved as hereinabove
provided, and shall record the amendment in the Official Records of San Diego County,
California. For the purpose of recording such instrument, each Owner, with the exception of the
Secretary, U.S. Department of Veteran Affairs, an officer of the United States of America,
hereby grants to the President or Vice President and Secretary or Assistant Secretary of the
Community Association an irrevocable power of attorney to act for and on behalf of each and
every Owner in certifying, executing and recording said instrument. Notwithstanding anything
to the contrary contained herein, in no event may any of Declarant's rights or privileges under
the Community Governing Documents be terminated, altered or amended without Declarant's
prior written consent.
14.1.2 Other Approvals Required for Amendments. Notwithstanding anything to
the contrary contained in this Declaration, Sections 1.15,1.53, 3.2.4, 3.3.3, 4.1.9, 4.2.10, 4.2.11,
8.5, 9.2, 15.4, 16.3, and 16.4 of this Declaration shall not be amended without the vote or
approval by written ballot of at least (a) ninety percent (90%) of the Voting Power of the
Members of the Community Association other than Declarant, and (b) at least ninety percent
(90%) of the Eligible Holders. Such vote shall be an Owner Participation Issue under the
Community Bylaws.
14.2 Conflict with Article 13 or Other Provisions of this Declaration. To the extent
any provisions of this Article conflict with the provisions of Article 14 or any other provision of
this Declaration, except those contained in Section 14.2, the provisions of Article 14 or the other
provisions shall control.
14.3 Approval by City. Notwithstanding anything to the contrary set forth in this
Declaration, including without limitation, the amendment provisions set forth in this Article 15,
the consent of the City shall be required for any amendment to Sections 2.3.6, 2.3.7,2.3.8, 2.6.4,
8.22, 8.25, 8.28, 8.29, 8.30, 8.31, 9.2, 9.3, 9.4, 9.7.1, 9.7.2, 9.9, 15.3, 16.3.1,16.6, 16.7, 16.8 of
this Declaration or any other provision of this Declaration which gives to the City any approval
rights or enforcement rights under this Declaration. Any approval by the City hereunder shall be
submitted to the Planning Director and/or City Engineer whose decision shall be binding on the
City. The City shall approve or disapprove any proposed amendment within thirty (30) days of
submittal of the amendment to the City Manager. Any amendment shall be delivered to the City
in the same manner as provided in Section 13.7 of this Declaration for Mortgagees, to the City's
then current office.
14.4 Business and Professions Code Section 11018.7. All amendments or revocations
of this Declaration shall comply with the provisions of California Business and Professions
Code, Section 11018.7 or any successor statutes or laws, to the extent said Section is applicable.
14.5 Reliance on Amendments. Any amendments made in accordance with the terms
of this Declaration shall be presumed valid by anyone relying on them in good faith.
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ARTICLE 15
TERM AND ENFORCEMENT
This Article describes the procedures that apply in enforcing this Declaration and
specifies the types of dispute resolution procedures that will be followed to resolve such disputes.
15.1 Duration. The provisions of this Declaration, including the covenants, conditions
and restrictions contained herein shall run with and bind the Covered Property and shall continue
to be effective for a period of ninety-nine (99) years from the date of recordation. Thereafter, the
Declaration shall be automatically extended for successive periods often (10) years unless the
City and the Owners of two-thirds (2/3) of the Residential Lots subject to the Declaration have
executed and recorded at any time within six (6) months prior to the end of the 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 ten (10) year period.
15.2 Enforcement and Nonwaiver.
15.2.1 Rights of Enforcement of Community Governing Documents. The
Community Association or any Owner shall have a right of action against any Owner, and any
Owner shall have a right of action against the Community Association, to enforce by
proceedings at law or in equity, all restrictions, conditions, covenants and reservations, now or
hereafter imposed by the provisions of the Community Governing Documents or any amendment
thereto, including the right to prevent the violation of such restrictions, conditions, covenants, or
reservations and the right to recover damages or other dues for such violation except that Owners
shall not have any right of enforcement concerning liens for Community Assessments or
Condominium Project Assessments, as the case may be. The Community Association shall have
the exclusive right to the enforcement of provisions relating to architectural control and the
Community Handbook, unless the Community Association refuses or is unable to effectuate such
enforcement, in which case any Owner who otherwise has standing shall have the right to
undertake such enforcement. Failure of the Community Association, Declarant or any Owner to
enforce any covenants or restrictions herein contained shall in no event be deemed a waiver of
the right to do so thereafter. The City shall have the same right to enforce the provisions of this
Declaration as an Owner in the Covered Property.
15.2.2 Procedure for Enforcement. Notwithstanding anything to the contrary set
forth in Section 16.2.1, in enforcing any action under the Community Governing Documents,
unless the applicable time limitation for commencing an action would run within one hundred
twenty (120) days prior to the filing of a civil action by either the Community Association or an
Member solely for declaratory relief or injunction relief in connection with a claim for monetary
damages, other than assessments of the Community Association, not in excess of Five Thousand
Dollars ($5,000.00), related to the enforcement of the Community Governing Documents, the
parties shall endeavor as provided in California Civil Code Section 1354 or any successor statute
or law, to submit their dispute to a form of alternative dispute resolution such as mediation or
arbitration. The Community Board shall annually provide to the Members a summary of the
provisions of California Civil Code Section 1354 or any successor statute or law, which shall
include the language required and shall be delivered in the manner provided in Civil Code
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Section 1365. The exception for disputes related to Community Association assessments referred
above shall not apply to disputes between a Member and the Community Association regarding
assessments imposed by the Community Association, if the Member chooses to pay in full the
Community Association all of the assessments specified in California Civil Code Section 1366.3
or any successor statute or law, states by written notice that the amount is paid under protest, and
delivers such written notice in accordance with the provisions of California Civil Code
Section 1366.3 or any successor statute or law. Upon the delivery of such notice, the Community
Association shall inform the Member that such Member may resolve the dispute through
alternative dispute resolution as set forth in California Civil Code Section 1354 and any other
procedures to resolve the dispute that may be available through the Community Association. As
provided in Civil Code Section 1366.3, the right of any Owner to utilize alternative dispute
resolution under such Section may not be exercised more than two (2) times in any single
calendar year and not more than three (3) times within any five (5) calendar years.
15.3 NOTICE OF ACTIONS AGAINST DECLARANT. To the extent applicable, the
Community Association shall comply with the provisions of Civil Code Section 1368.4, Civil
Code Sections 910 through 938, and any successor statutes or laws, subject to the provisions of
Section 15.4.
15.4 ALTERNATIVE DISPUTE RESOLUTION. The purpose of this Section 15.4 is
to provide an expedited means of resolving any claims, disputes and disagreements which may
arise between (a) an Owner and/or the Community Association and (b) Declarant concerning the
Covered Property that are not resolved pursuant to any applicable statutory dispute resolution
procedures (individually referenced to herein as "Dispute" and collectively as "Disputes"). A
Supplementary Declaration may be recorded by a Merchant Builder setting forth any alternative
dispute resolution procedures relating to disputes or claims between an Owner and a Merchant
Builder, which do not involve the Community Association and/or the Declarant.
15.4.1 Mediation.
(a) Disputes Subject to Mediation. Except for construction defect
claims which are to be resolved through the non-adversarial statutory provisions set forth in
Sections 910 through 938 of the California Civil Code, any Disputes arising out of or relating to
the Covered Property may not be commenced until the matter has been submitted to Judicial
Arbitration and Mediation Services ("JAMS"), or its successor, for mediation.
15.4.2 Arbitration.
(a) Agreement to Arbitrate. If a dispute is not resolved through
mediation or the statutory non-adversarial procedure, the Declarant or any director, officer,
partner, member, employee or agent of Declarant and either the Community Association or any
Owner shall resolve any and all Disputes exclusively through binding arbitration in the County.
This arbitration provision shall apply to Disputes of any kind or nature regardless of when the
Dispute first arose or the nature of the relief sought. Alternatively, either the Community
Association, any Owner or Declarant may elect to resolve such Disputes through a small claims
court proceeding, in which case the party filing the small claims action will have waived the
right to any relief in excess of the jurisdiction of the small claims court.
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(b) Waiver of Trial by Judge or Jury. By agreeing to resolve all
Disputes through binding arbitration, the Community Association, each Owner and the
Community Association and Declarant each give up the right to have their respective claims and
defenses decided by a judge or a jury.
(c) Rules Applicable to All Cases. The arbitration will be conducted
by JAMS in accordance with the JAMS rules ("JAMS Rules") then applicable to the claims
presented, as supplemented by this Declaration. The following supplemental rules shall apply to
all arbitration proceedings and shall govern in the event of a conflict between the rules set forth
below and the JAMS Rules.
(d) Qualifications of Arbitrators. The arbitrator shall be neutral and
impartial and either a retired judge or a member or former member of the California State Bar
with at least fifteen (15) years experience as a practicing lawyer and at least ten (10) years
experience with construction related disputes.
(e) Appointment of Arbitrator. The arbitrator to preside over the
Dispute shall be selected in accordance with the JAMS Rules, but no later than sixty (60) days
after a notice of claim is filed.
(f) Expenses. All fees charged by JAMS and the arbitrator shall be
advanced by Declarant. If Declarant is the prevailing party in the arbitration, the arbitrator may,
to the extent permitted by law and the JAMS Rules, direct the Owner or the Community
Association, as applicable to reimburse the Declarant for up to fifty percent (50%) of the JAMS
fee and arbitrator's fee advanced by Declarant within sixty (60) days after the final arbitration
award.
(g) Preliminary Procedures. If state or federal law requires the
Declarant, the Community Association or Owner to take steps or procedures before commencing
an action in court, then the Declarant, the Community Association or Owner must take such
steps or follow such procedures, as the case may be, before commencing the arbitration. For
example, any claims or Disputes pursuant to California Civil Code Section 895 et. seq., as
hereafter amended shall be subject to the non-adversarial procedures set forth in California Civil
Code Section 910 through 938, prior to the initiation of any arbitration or small claims court
proceeding against Declarant. In addition, nothing contained herein shall be deemed a waiver or
limitation of the provisions of California Civil Code Sections 1368.4, 1375, 1375.05 or 1375.1.
(h) Participation by Other Parties. Declarant, the Community
Association or Owner to the extent either such party is defending a claim in the arbitration, may,
if it chooses, have all necessary and appropriate parties included as parties to the arbitration.
(i) Rules of Law. The arbitrator must follow California substantive
law (including statutes of limitations) but may receive hearsay evidence. The arbitrator shall be
authorized to provide all recognized remedies available at law or equity for any cause of action.
(j) Attorneys Fees and Costs. Each party shall bear its own attorneys
fees and costs (including expert witness costs) in the arbitration.
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15.4.3 Additional Rules Applicable To Certain Cases. In any arbitration in which
a claim of Declarant, the Community Association or Owner exceeds $250,000 in value, the
following additional rules will supplement the JAMS Rules and govern in the event of a conflict
between the following rules and the rules set forth above, the JAMS Rules, or both.
(a) Qualifications of Arbitrator. In addition to the requirements of
Section 15.4.1(d) above, the arbitrator shall be a retired judge of the California Superior Court, a
California Court of Appeal, or the California Supreme Court.
(b) Transcripts. All hearings in which evidence is received must be
recorded by a customary method so that a transcript of all testimony can be prepared. The cost
of the recording shall be paid by Declarant as further provided in Section 15.4.4(e) below and
the cost of the transcription shall be paid by the appealing party.
(c) Rules of Law. The arbitrator must follow the California Evidence
Code.
(d) Written Decision. Within thirty (30) days after the hearing is
closed, the arbitrator must issue a written decision. If either Declarant, the Community
Association or Owner requests it, the arbitrator must issue a reasoned award.
(e) Petition to Confirm Award. Neither Declarant, the Community
Association or Owner may petition a court to enter judgment on the arbitration award until the
other party's time to serve a notice of appeal, as set forth below, has expired.
15.4.4 Procedure for Appeal of Certain Cases. In any arbitration in which a
claim of Declarant, the Community Association or Owner exceeds $250,000 in value, each party
shall have a limited right to appeal the arbitration award as set forth below.
(a) Right of Appeal. There shall be no right to appeal unless the oral
evidence received by the arbitrator was preserved in a manner that it can be converted to an
accurate and reliable written transcript.
(b) Appellate Arbitration. An appeal shall be decided by one (1)
neutral appeal arbitrator appointed by JAMS under the rules that govern appointment of
arbitrators. The appeal arbitrator must be a retired judge.
(c) Issues on Appeal. The only issues that may be considered on
appeal are: (1) the award of money was excessive; (2) the award of money was insufficient;
(3) the arbitrator awarded non-monetary relief that was inappropriate; (4) a party who received
non-monetary relief should have received other or additional relief. The appeal arbitrator may
affirm the arbitration award or make any alternative award he or she finds to be just, but must not
reject the arbitrator's decisions (a) that a particular party is entitled to relief of some nature or
amount or (b) that a particular party is responsible to provide relief of some nature or amount.
(d) Notice of Appeal. To appeal an arbitration award, a party must
serve written notice of the appeal on JAMS and all parties to the arbitration within thirty (30)
days after mailing of the arbitrator's award to the parties. The written notice of appeal must
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include a general description of the grounds for appeal and the relief requested. A party who has
received a timely notice of appeal may thereafter file and serve its own notice of appeal within
sixty (60) days after mailing of the arbitration award to the parties.
(e) Expenses and Costs on Appeal. The appealing party must advance
all fees for the appeal and provide JAMS with a written transcript of the oral testimony, copies of
all documentary evidence and all other tangible evidence received by the arbitrator. If more than
one party appeals, the appealing parties must share equally the JAMS fees and the cost of
preparing and copying the transcript and all other evidence received by the arbitrator. The
appeal arbitrator may award costs of the nature provided in the Federal Rules of Appellate
Procedure provided that the maximum, which may be awarded to Declarant as the prevailing
party, is fifty percent (50%) of the total costs of the arbitration appeal.
(f) Appellate Briefs. The appeal arbitrator may receive written briefs
from the parties and hear oral argument, but must not receive new evidence. The appeal
arbitrator must make his or her decision based only on the evidence that was presented to the
arbitrator, except that the appeal arbitrator may visit any site involved in the Dispute.
(g) Decision on Appeal. The decision of the appeal arbitrators shall be
the final award in the case and shall be treated as the arbitration award for all purposes.
(h) Federal Arbitration Act. Declarant, the Community Association
and each Owner acknowledge that because many of the materials and products incorporated into
the home are manufactured in other states, the conveyance of the Covered Property evidences a
transaction involving interstate commerce and the Federal Arbitration Act (9 U.S.C. §1, et. seq.)
now in effect and as it may be hereafter amended will govern the interpretation and enforcement
of the arbitration provisions of this Declaration.
15.4.5 AGREEMENT TO ARBITRATE AND WAIVER OF JURY TRIAL.
(a) ARBITRATION OF DISPUTES. DECLARANT, EACH
OWNER BY ACCEPTANCE OF A DEED, AND THE COMMUNITY ASSOCIATION
AGREE TO HAVE ANY DISPUTE DECIDED BY NEUTRAL ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA
ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS
CONSISTENT WITH THE FEDERAL ARBITRATION ACT, AND EACH OWNER,
DECLARANT AND THE COMMUNITY ASSOCIATION ARE GIVING UP ANY RIGHTS
DECLARANT, EACH OWNER AND THE COMMUNITY ASSOCIATION MIGHT
POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.
DECLARANT, EACH OWNER, AND THE COMMUNITY ASSOCIATION ARE GIVING
UP THEIR RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS
THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS SECTION 16.4. IF
DECLARANT, ANY OWNER OR COMMUNITY ASSOCIATION REFUSED TO SUBMIT
TO ARBITRATION AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE
COMPELLED TO ARBITRATE UNDER THE FEDERAL ARBITRATION ACT AND THE
CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT.
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(b) WAIVER OF JURY TRIAL. IN THE EVENT THE
FOREGOING ARBITRATION PROVISION IS HELD NOT TO APPLY OR IS HELD
INVALID, VOID OR UNENFORCEABLE IN ITS ENTIRETY FOR ANY REASON, ALL
DISPUTES SHALL BE TRIED BEFORE A JUDGE IN A COURT OF COMPETENT
JURISDICTION WITHOUT A JURY. THE JUDGE IN SUCH COURT OF COMPETENT
JURISDICTION SHALL HAVE THE POWER TO GRANT ALL LEGAL AND EQUITABLE
REMEDIES AND AWARD COMPENSATORY DAMAGES. DECLARANT, BY
EXECUTING THIS DECLARATION AND EACH OWNER, AND THE COMMUNITY
ASSOCIATION BY ACCEPTING A DEED TO ANY PORTION OF THE COVERED
PROPERTY, HEREBY WAIVE AND COVENANT NOT TO ASSERT THEIR
CONSTITUTIONAL RIGHT TO TRIAL BY JURY OF ANY DISPUTES, INCLUDING, BUT
NOT LIMITED TO, DISPUTES RELATING TO CONSTRUCTION DEFECTS,
MISREPRESENTATION OR DECLARANT'S FAILURE TO DISCLOSE MATERIAL
FACTS. THIS MUTUAL WAIVER OF JURY TRIAL SHALL BE BINDING UPON THE
RESPECTIVE SUCCESSORS AND ASSIGNS OF SUCH PARTIES AND UPON ALL
PERSONS AND ENTITIES ASSERTING RIGHTS OR CLAIMS OR OTHERWISE ACTING
ON BEHALF OF DECLARANT, ANY OWNER AND THE COMMUNITY ASSOCIATION
OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
15.4.6 Final and Binding Award. The decision of the arbitrator or, if an appeal is
heard, the decision of the appeal arbitrators, shall be final and binding. A petition to confirm,
vacate, modify or correct an award may be filed in any court of competent jurisdiction in the
county in which the Covered Property is located, but the award may be vacated, modified or
corrected only as permitted by the Federal Arbitration Act.
15.4.7 Severability. In addition to and without limiting the effect of any general
severability provisions of this Declaration, if the arbitrator or any court determines that any
provision of this Section 15.4 is unenforceable for any reason, that provision shall be severed,
and proceedings agreed to in this Declaration shall be conducted under the remaining
enforceable terms of this Section 15.4.
15.4.8 Application of Award. Any proceeds awarded to the Community
Association arising from any Dispute by settlement, award or otherwise shall be applied in
accordance with the provisions of Section 4.1.9 of this Declaration.
15.5 General Enforcement by the City.
15.5.1 Right of City to Enforce Declaration. The City shall have the right, but
not the obligation, to enforce the restrictions set forth in this Declaration in favor of, or in which
the City has an interest.
15.5.2 Failure of Community Association to Maintain Community Association
Property and Common Maintenance Areas. If the Community Association fails to maintain the
Community Association Property or Common Maintenance Areas as provided in Article 8, 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 Community
Association, with a copy thereof to the Owners in the La Costa Greens Community, setting forth
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27817-13/1753225.9 82 2/17/04
with particularity the maintenance which the City finds to be required and requesting the same be
carried out by the Community Association within a period of thirty (30) days from the giving of
such notice. In the event that the Community Association fails to carry out such maintenance of
the Community Association Property 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 herein.
15.5.3 Special Assessments Levied by the City. In the event the City has
performed the necessary maintenance to either Community Association Property or Common
Maintenance Areas, the City shall submit a written invoice to the Community Association for all
costs incurred by the City to perform such maintenance of the Community Association Lots
and/or Community Association's easements. The City shall provide a copy of such invoice to
each Owner in the La Costa Greens Community, together with a statement that if the Community
Association fails to pay such invoice in full within the time specified, the City will pursue
collection against the Owners in the La Costa Greens Community pursuant to the provisions of
this Section. Said invoice shall be due and payable by the Community Association within twenty
(20) days of receipt by the Community Association. If the Community Association shall fail 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 Community Association by means
of any remedies available at law or in equity. Without limiting the generality of the foregoing, in
addition to all other rights and remedies available to the City, the City may levy a Special
Assessment against the Owners of each Residential Lot in the La Costa Greens Community for
an equal pro rata share of the invoice, plus the late charge. Such Special Assessment shall
constitute a charge on the land and shall be a continuing lien upon each Residential Lot against
which the Special Assessment is levied. Each Owner in the La Costa Greens Community hereby
vests the City with the right and power to levy such Special Assessment, to impose a lien upon
their respective Residential Lot and to bring all legal actions and/or to pursue lien foreclosure
procedures against any Owner and his or her respective Lot for purposes of collecting such
Special Assessment in accordance with the procedures set forth in Article 5 of this Declaration.
15.6 City Required Disclosures. The following information is set forth in this
Declaration as required by the City as a condition to City approval of the Tentative Map. Each
Owner acknowledges that this is not a comprehensive and exhaustive list of all material
information about the La Costa Greens Community and that this information is subject to
change.
15.6.1 Use of Reclaimed Water. As required by the City, the Community
Association shall use reclaimed water for the irrigation of Community Association Property and
Common Maintenance Area landscaping if reclaimed water becomes reasonably available for
that purpose. If reclaimed water does become reasonably available for irrigation of the
Community Association Property or Common Maintenance Area, the Community Association
shall not discontinue use of reclaimed water for that purpose without the approval of the
applicable water district.
15.6.2 Aircraft Noise. The information set forth in this Section is correct as of
the date of the recordation of this Declaration. Any of this information is subject to modification
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27817-13/1753225.9 83 2/17/04
or change in the future. The La Costa Greens Community is located in the vicinity of the
McClellan Palomar Airport and is subject to overflight, sight and sound from aircraft operating
from this airport and also may create noise, pollution and dirt. The facility is, as of the date of
this Declaration, operated by the County. Overflight may result from private, public and military
aircraft. Declarant makes no warranty or representation as to the future use of this airport, future
increase or decrease in overflights, or any other impact resulting form the use of this facility.
Flights may occur 24 hours a day, but a voluntary jet curfew exists Monday through Sunday
from 10:00 p.m. to 7 a.m. Flight activity generally consists of private aircraft, jet commuter and
helicopters. For additional information regarding airport operations, you may call the McClellan
Palomar Airport.
15.6.3 Natural Hazards. Portions of the La Costa Greens Community are located
in areas where there may be natural hazards. Each Owner who acquires a Residential Lot subject
to a Public Report should review carefully the Natural Hazards Disclosure Report provided to
such Owner by the Merchant Builder, and each subsequent Owner should review carefully any
disclosures about natural hazards provided by the Seller of the Residential Lot.
15.6.4 Restricted Facilities Parking. The recreational facilities that are to be
included as part of the Community Association Property are not currently being designed with
on-site parking. Members who use the recreational facilities will be required to park on the
streets in the area of the recreational facilities. Residences in the vicinity of the recreational
facilities may be impacted by this parking arrangement.
15.7 Copy of Recorded Declaration to City. Upon recordation of this Declaration with
the Office of the County Recorder of San Diego County, California, Declarant shall forward a
copy of the recorded Declaration to Michael J. Holzmiller, Planning Director, City of Carlsbad,
1635 Faraday Avenue, Carlsbad, California 92008-7314.
ARTICLE 16
GENERAL PROVISIONS
16.1 Headings. The headings used in this Declaration are for convenience only and are
not to be used to interpret the meaning of any of the provisions of this Declaration.
16.2 Severability. The provisions of this Declaration shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforceability of any provision or
provisions of it shall not invalidate any other provisions.
16.3 Cumulative Remedies. Each remedy provided for in this Declaration shall be
cumulative and not exclusive. Failure to exercise any remedy provided for in this Declaration
shall not, under any circumstances, be construed as a waiver.
16.4 Violations as Nuisance. Every act or omission in violation of the provisions of
this Declaration shall constitute a nuisance and, in addition to all other remedies herein set forth,
may be abated or enjoined by any Owner, any Member of the Community Board, the manager,
or the Community Association.
La Costa Greens
CC&Rs
27817-13/1753225.9 84 2/17/04
16.5 No Racial Restriction. No Owner shall execute or cause to be recorded any
instrument which imposes a restriction upon the sale, leasing or occupancy of his or her
Residential Lot on the basis of race, sex, color or creed.
16.6 Access to Books. Declarant may, at any reasonable time and upon reasonable
notice to the Community Board or manager, at his or her own expense, cause an audit or
inspection to be made of the books and financial records of the Community Association.
16.7 Liberal Construction. The provisions of this Declaration shall be liberally
construed to effectuate its purpose. Failure to enforce any provision hereof shall not constitute a
waiver of the right to enforce said provision thereafter.
16.8 Notification of Sale of Residential Lot. Concurrently with the consummation of
the sale of any Residential Lot under circumstances whereby the transferee becomes an Owner
thereof, or within five (5) business days thereafter, the transferee shall notify the Community
Board in writing of such sale. Such notification shall set forth the name of the transferee and his
or her mortgagee and transferor, the common address of the Residential Lot purchased by the
transferee, the transferee's and the mortgagee's mailing address, and the date of sale. Prior to the
receipt of such notification, any and all communications required or permitted to be given by the
Community Association, the Community Board or the manager shall be deemed to be duly made
and given to the transferee if duly and timely made and given to said transferee's transferor.
16.9 Notices. Mailing addresses may be changed at any time upon written notification
to the Community Board. Unless otherwise permitted hereunder, notices shall be in writing and
shall be given by certified mail, return receipt requested, overnight courier or personal delivery.
Notices shall be deemed received in three (3) days if mailed by certified mail, return receipt
requested, one (1) business day after deposit with an overnight courier or upon receipt if
delivered in person. All notices to the Community Association shall be delivered to the current
addresses of the Community Association. All notices to an Owner shall be delivered to a
Residential Lot unless an Owner notifies the Community Association in writing of a change of
address.
16.10 Number: Gender. The singular shall include the plural and the plural the singular
unless the context requires the contrary, and the masculine, feminine and neuter shall each
include the masculine, feminine or neuter, as the context requires.
16.11 Exhibits. All exhibits referred to are attached to this Declaration and incorporated
by reference.
16.12 Binding Effect. This Declaration shall inure to the benefit of and be binding on
the successors and assigns of the Declarant, and the heirs, personal representatives, grantees,
tenants, successors and assigns of the Owners.
La Costa Greens
CC&Rs
27817-13/1753225.9 85 2/17/04
IN WITNESS WHEREOF, the undersigned, as Declarant, has executed this Declaration
as of the date first set forth above.
REAL ESTATE COLLATERAL MANAGEMENT
COMPANY, a Delaware corporation
By:
Name:
Title:
La Costa Greens
CC&Rs
27817-13/1753225.9 86 2/17/04
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
LIST OF EXHIBITS
Legal Description of Covered Property Initially Subject to this Declaration
Habitat Preserve Areas
Habitat Preserve Restrictions
Educational Materials
Fire Suppression Zones
Invasive Species
La Costa Greens
CC&Rs
27817-13/1753225.9 2/17/04
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
On , 200 , before me, ,a
Notary Public in and for said State, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
La Costa Greens
CC&Rs
27817-13/1753225.9 1 2/17/04
SUBORDINATION AGREEMENT
The undersigned, as Holder of the Beneficial Interest in that certain Deed of Trust dated
and recorded in the Office of the County Recorder of San Diego County
on as Instrument No. hereby declares that the lien and
charge of the Deed of Trust are and shall be subordinate to the Declaration of Covenants,
Conditions and Restrictions of the La Costa Greens recorded in the Office of the County
Recorder of San Diego County on as Instrument No.
(collectively, "Declaration") to which this Subordination Agreement is attached.
Dated: , a
By:_
By: _
Name:
Title: "
La Costa Greens
CC&Rs
27817-13/1753225.9 1 2/17/04
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On , 200 , before me, ,a
Notary Public in and for said State, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature (SEAL)
La Costa Greens
CC&Rs
27817-13/1753225.9 1 2/17/04
EXHIBIT "A"
Covered Property Subject to this Declaration
LOTS 2 THROUGH 4 INCLUSIVE, 6 THROUGH 14, INCLUSIVE, 16 THROUGH 19,
INCLUSIVE, 21, 22, 24, 26, 27, 29, 31, 34, 36, 38, 39, 41, 44, 46, 47, 48 AND 49 OF CITY OF
CARLSBAD TRACT NO. 99-03 VILLAGES OF LA COSTA, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP
THEREOF NO. , FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAID SAN DIEGO COUNTY ON , 2004.
La Costa Greens
CC&Rs
27817-13/1753225.9 EXHIBIT "A" 2/17/04
EXHIBIT "B"
Habitat Preserve Areas
LOTS 20, 23, 25, 28, 30, 32, 33, 35, 37, 40, 42, 43 AND 45 OF THE CITY OF CARLSBAD
TRACT NO. 99-03, VILLAGES OF LA COSTA, IN THE CITY OF CARLSBAD, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. , FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN
DIEGO COUNTY ON APRIL 29, 2004. \\Conflrm\\
La Costa Greens
CC&Rs
27817-13/1753225.9 EXHIBIT "B" 2/17/04
EXHIBIT "C"
Habitat Preserve Restrictions
1. All dogs must be leashed.
2. Mountain bikes, off-road vehicles, camping, shooting and hunting are not allowed.
3. Cliff jumping and swimming are strictly prohibited in Box Canyon.
La Costa Greens
CC&Rs
27817-13/1753225.9 EXHIBIT "C" 2/17/04
EXHIBIT "D"
Educational Materials
Background
Within your new community is the La Costa Preserve, 1,000 acres of dedicated natural
open space which includes the 200-foot deep Box Canyon and its 40-foot waterfall.
The eastern portion of the Preserve forms a core habitat area including a large contiguous
stretch of coastal sage scrub, chaparral and natural open space. Two hundred additional acres of
off-site habitat links this core area with open space to the south, providing an important
component to the regional conservation effort to ensure the long-term vitality of key animal
species.
The Preserve is expected to protect 18 pairs of threatened California Gnatcatchers and
ensure the long-term survival of more than 60 other species including the Del Mar manzanita,
thread-leaved brodiaea, summer holly, California adolphia, wart-stemmed ceanothus and sticky-
leaved live-forever. The wildlife identified on the Preserve includes coyote, mule deer, bobcat,
red-tailed hawks, horned lizards, rufous-crowned sparrow, and orange-throated whiptail.
Management Plan
The Center for Natural Lands Management, a Fallbrook-based non-profit foundation,
owns and manages La Costa Preserve, The Center has been responsible for managing natural
open space for more than ten years, currently overseeing more than 50,000 acres within 36
preserves throughout California. The Center has teamed with the Batiquitos Lagoon Foundation
to utilize the Foundation's vast experience managing the lagoon as part of their collective efforts
to protect the Preserve.
Under the Preserve's management plan, the Center's responsibilities will include the
inventory and monitoring of important habitat and wildlife populations such as birds, mammals,
reptiles, amphibians, invertebrate and sensitive plant species as well as ongoing maintenance of
the property including erosion control, fence and gate maintenance, and sign construction and
replacement. In addition, the Center will conduct programs including habitat restoration and
enhancement, invasive pest/exotic plant species control, plant and animal management, fire
management and public education. Morrow Development has established an endowment in
excess of $1.4 million to provide for maintenance of the Preserve in perpetuity.
Designated Uses
To insure the protection of the La Costa Preserve for the enjoyment of all the residents,
the following rules have been established:
• The Preserve is open for walking, hiking, wildlife viewing and
horseback riding on designated trails only. Dogs must be leashed.
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27817-13/1753225.9 EXHIBIT "D"
1 2/17/04
Mountain bikes, off-road vehicles, camping, shooting and hunting
are not allowed.
Cliff jumping and swimming are strictly prohibited in Box
Canyon.
Management Contact
Center for Natural Lands Management
425 East Alvarado Street, Suite H
Fallbrook, CA 92028-2960
(760)731-7790
La Costa Greens
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27817-13/1753225.9 EXHIBIT "D"
2 2/17/04
EXHIBIT "E"
Fire Suppression Zones
Fire suppression zones are managed strips of land consisting of irrigated zones and dry or
thinning zones of varying width, depending on local conditions. Therefore, fire suppression
zones, if applicable, will vary from lot to lot. Additionally, within the fire suppression zones
sub-zones exist, again depending on specific site conditions. The site conditions are broken into
two distinct categories, Manufactured Slopes — Condition A, or Native Slopes — Condition B.
The sub-zones are shown on page 4 of this Exhibit E, and described as follows:
1. Condition A — Manufactured Slope Fire Protection
a. Section A-1 — measured horizontally 20 feet outward from the outlying
edge of structure(s).
• Planted with groundcover or low growing shrub species (less than
three (3) feet in height) known to have fire retardant qualities.
• No trees or shrubs allowed.
• No structures allowed including patio trellises, arbors, fire pits,
gazebos, enclosed porches and balconies.
• Irrigated.
b. Section A-2 — measured horizontally 20 feet outward from the outlying
edge of Section A-l.
• Planted with low water use naturalizing plant species known to
have low fuel characteristics.
c.
• No trees allowed.
• Irrigated.
Section A-3 — measured outward from the outlying edge of A-2 to
include the remainder of the area between Section A-2 and high-risk fire
areas. Horizontal distance from the structure(s) to untreated high-risk
areas shall not be less than 60 feet.
• Planted with low water use naturalizing plant species known to
have low fuel characteristics.
• Trees are allowed, but shall not be planted closer than 20 feet
apart.
La Costa Greens
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27817-13/1753225.9 EXHIBIT "E"
1
2/17/04
2.
• Irrigated.
Condition B — Native Slopes— Wild Land Fire Suppression
Pertains to areas where removal of environmentally sensitive native vegetation is
restricted within the fire sections.
a. Section B-l — measured 20 feet horizontally from the outlying edge of
the structure(s) toward the environmentally restricted area as defined by
the City.
• Removal of "high fuel and moderate hazard species."
• Planting with groundcover or low growing shrub species (less that
three feet in height) known to have fire retardant qualities or as
otherwise required by the City.
• No trees or shrubs allowed.
• No structures allowed including patio trellises, arbors, fire pits,
gazebos, enclosed porches and balconies.
• Irrigated.
b. Section B-2 — measured horizontally 20 feet outward from the outlying
edge of Section B-l.
• Removal of "high fuel species."
• Removal of selective pruning of up to 60 percent of the volume of
the "moderate fuel species."
• Replanting with naturalizing low fuel species.
• Trees and large tree form shrubs (e.g., Oaks, Sumac, Toyon) which
are being retained shall be pruned to provide clearance equal to
three times the height of the surrounding understory plant material
or six feet, whichever is higher. Dead and excessively twiggy
growth shall also be removed.
• Temporarily irrigated.
c. Section B-3 — measured horizontally 20 feet outward from the outlying
edge of Section B-2. The outer edge of B-3 shall extend horizontally to a
point at least 60 feet from structures.
• Removal of "high fuel species."
La Costa Greens
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27817-13/1753225.9 EXHIBIT "E"
2
2/17/04
Removal by selective pruning of up to 40 percent of the volume of
the "moderate fuel species."
Trees and large tree form shrubs (e.g., Oaks, Sumac, Toyon) which
are being retained shall be pruned to provide clearance equal to
three times the height of the surrounding understory plant material
or six feet, whichever is higher. Dead and excessively twiggy
growth shall also be removed.
Not irrigated.
La Costa Greens
CC&Rs
27817-13/1753225.9 EXHIBIT "E" 2/17/04
3
Latin Name
EXHIBIT "F"
Invasive Species
Common Name
Ammophila arenaria
Arundo donax
Bromus tectorum
Carpobrotus edulis
Centaurea solstitialis
Cortaderia jubata
Cortaderia selloana
Cynara cardunculus
Cystisus scoparius
Eucalyptus globulus
Foeniculum vulgare
Genista monspessulana
Lepidium latifolium
Myriophyllum spicatum
Pennisetum setaceum
Rubus discolor
Senecio mikanioides (Delairea odorata)
Taeniatherum caput-medusae
Tamarix chinemis, T.gallica, T.parviflora &
T.ramosissima
Ulex europaeus
Ailanthus altissima
Atriplex semibaccata
Brassica tournefortii
Bromus madritensis ssp.rubens
Cardaria draba
Conicosia pugioniformis
Cotoneaster pannosus, c.lacteus
Cytisus striatus
Egeria densa
Ehrharta calycina
Eichhornia crassipes
Elaegnus angustifolia
Euphorbia esula
Ficus carica
Lupinus arboreus
Mentha pulegium
Myoporum laetum
European beach grass
Giant reed, arundo
Cheat grass, downy brome
Iceplant, sea fig
Yellow starthistle
Andean pampas grass, jubatagrass
Pampas grass
Artichoke thistle
Scotch broom
Tasmanian blue gum
Wild fennel
French broom
Perennial pepperweed, tall whitetop
Eurasian watermilfoil
Fountain grass
Himalayan blackberry
Cape ivy, German ivy
Medusa-head
Tamarisk, salt cedar
Gorse
Tree of Heaven
Australian saltbush
Moroccan or African mustard
Red Brome
White top, hoary cress
Narrow-leaved iceplant, roundleaf iceplant
Cotoneaster
Striated broom
Brazilian waterweed
Veldt grass
Water hyacinth
Russian olive
Leafy spurge
Edible fig
Bush lupine
Pennyroyal
Myoporum
La Costa Greens
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27817-13/1753225.9 EXHIBIT "F"
1
2/17/04
Latin Name Common Name
Spartina alterniflora
Ageratina adenophora
Bassia Hyssopifolia
Bellardia trixago
Brassica nigra
Cardaria chalepensis
Carduus pycnocephalus
Centaurea calcitrapa
Centaurea melitensis
Cirsium arvense
Cirsium vulgare
Conium maculatum
Crataegus monogyna
Ehrharta erecta
Erechtites glomerata, e.minima
Festuca arundinacea
Hedera helix
Holcus lanatus
Hypericum perforatum
Ilex aquifolium
Iris pseudacorus
Leucanthemum vulgare
Mesembryanthemum crystallinum
Myriophyllum aquaticum
Olea europaea
Phalaris aquatica
Potamogeton crispus
Ricinus communis
Robinia pseudoacacia
Schinus molle
Schinus terebinthifolius
Seneciojacobaea
Spartium junceum
Verbascum thapus
Vinca major
Atlantic or smooth cordgrass
Eupatory
Bassia
Bellardia
Black mustard
Lens podded white top
Italian thistle
Purple starthistle
Tocalote, Malta starthistle
Canada thistle
Bull thistle
Poison hemlock
Hawthorn
Veldt grass
Australian fireweed
Tall fescue
English ivy
Velvet grass
Klamathweed, St.John's wort
English holly
Yellow water iris, yellow flag
Ox-eye daisy
Crystalline iceplant
Parrot's feather
Olive
Harding grass
Curly leaf pondweed
Castor bean
Black locust
Peruvian pepper tree
Brazilian pepper
Tansy ragwort
Spanish broom
Wooly or common mullein
Periwinkle
La Costa Greens
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2/17/04
WRITTEN CONSENT ACTION uu ORIGINAL
Finest City Realty Advisors, a
California corporation
The undersigned being all of the Directors of Finest City Realty Advisors, a California
corporation, (the "Company") hereby unanimously adopt the following resolution on
behalf of the Company:
RESOLVED, Finest City Realty, a California corporation, hereby expressly confirms that
Charles Abdi, as President of the Company, is granted full and complete authority to take
any action in connection with any real property, located in any County within the State of
California, in the Company's capacity as a Co-Managing Member of ECR Carlsbad
Management, LLC, a Delaware limited liability company, (which is the General Partner
of ECR Corporate Center, L.P., a California limited partnership) including but not limited
to purchasing, mortgaging, encumbering, holding, subdividing, improving, managing,
marketing, selling and executing as sole signatory any documents related thereto.
This Written Consent Action may be executed in any number or counterparts, each of
which shall be deemed an original.
DATE: January 16, 2006
C. Diane Abdi
s:\mrb\general\fcrawrittenconsentaction.doc
CERTIFICATION
The undersigned, Monica R. Browning, certifies (i) that she keeps the Minute Book for
WBC Investments LLC, a California limited liability company, including the original
Operating Agreement and all amendments thereto and (ii) that the attached First
Amendment to Operating Agreement for WBC Investments LLC is a true and correct
copy thereof which was duly signed by all of the Members of WBC Investments LLC.
Date: June \L
Monica R. Browning, Esq.
(State Bar of California # 106201)'
AGREEMENT OF LIMITED PARTNERSHIP
OF
ECR CORPORATE CENTER, L.P.
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
UNDER THE SECURITIES ACT OF 1933, 15 U.S.C. § 15b ET SEQ., AS AMENDED (THE "FEDERAL ACT"), IN
RELIANCE UPON ONE (1) OR MORE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE
FEDERAL ACT. IN ADDITION, THE ISSUANCE OF THIS SECURITY HAS NOT BEEN QUALIFIED UNDER
THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968, OR ANY OTHER STATE SECURITIES LAWS
(COLLECTIVELY, THE "STATE ACTS"), IN RELIANCE UPON ONE (1) OR MORE EXEMPTIONS FROM THE
REGISTRATION PROVISIONS OF THE STATE ACTS. IT IS UNLAWFUL TO CONSUMMATE A SALE OR
OTHER TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN TO, OR TO RECEIVE ANY
CONSIDERATION THEREFOR FROM, ANY PERSON OR ENTITY WITHOUT AN OPINION OF COUNSEL FOR
THE PARTNERSHIP THAT THE PROPOSED SALE OR OTHER TRANSFER OF THIS SECURITY DOES NOT
AFFECT THE AVAILABILITY TO THE PARTNERSHIP OF SUCH EXEMPTIONS FROM REGISTRATION AND
QUALIFICATION, AND THAT SUCH PROPOSED SALE OR OTHER TRANSFER IS IN COMPLIANCE WITH ALL
APPLICABLE STATE AND FEDERAL SECURITIES LAWS. THE TRANSFER OF THIS SECURITY IS FURTHER
RESTRICTED UNDER THE TERMS OF THE LIMITED PARTNERSHIP AGREEMENT GOVERNING THE
PARTNERSHIP, A COPY OF WHICH IS ON FILE WITH THE PARTNERSHIP.
SDM653581.4
1-6
AGREEMENT OF LIMITED PARTNERSHIP
OF
ECR CORPORATE CENTER, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP OF ECR CORPORATE CENTER,
L.P., is entered into effective as of January 12,2006, by and between ECR CARLSBAD
MANAGEMENT, LLC, a Delaware limited liability company, as the general partner, and
CARLTAS INVESTMENTS L.P., a California limited partnership, as the limited partner. The
capitalized terms used herein shall have the respective meanings assigned to such terms in
ARTICLE XI.
ARTICLE I
FORMATION AND AGREEMENT OF LIMITED
PARTNERSHIP
1.01 Formation. The Partners hereby form a limited partnership pursuant to the
provisions of the Act and this Agreement.
1.02 Filings. In connection with the formation of the Partnership, the General Partner
shall execute a Certificate of Limited Partnership (Form LP-1) pursuant to the provisions of
Section 15621 of the Act, which shall be duly filed in the Office of the California Secretary of
State, and certified copies of which may be recorded in the office of the recorder of any county
within or outside the State of California. The General Partner is also authorized to execute,
acknowledge, verify and/or file such other documents and/or instruments as may be necessary
and/or appropriate in order to form the Partnership, continue its existence, and conduct its
business in accordance with the provisions of the Act.
1.03 Names and Addresses. The name under which the Partnership is to be conducted
shall be "ECR Corporate Center, L.P." The principal executive office of the Partnership shall
be at 5600 Avenida Encinas, Suite 100, Carlsbad, California 92008, or such other place or places
as the General Partner may determine. The name and address of the registered agent for service
of process on the Partnership is John C. White, 5600 Avenida Encinas, Suite 100, Carlsbad,
California 92008. The names and addresses of the Partners are set forth on Exhibit "A" attached
hereto.
1.04 Nature of Business. The express, limited and only purposes for which the
Partnership is to exist are (i) to acquire that certain real property consisting of approximately five
and seven-tenths (5.7) acres of sheet graded land located adjacent to the Bressi Ranch Business
Park between Camino Vida Roble and Towne Center Drive east of El Camino Real in the City of
Carlsbad, County of San Diego, State of California, and more particularly described on
Exhibit "B" attached hereto (the "Property"); (ii) pursue one of two alternative development
projects, either (A) as "Project A," to develop and construct upon the Property me.dical office
buildings, consisting of approximately 85,000 square feet of usable space ("Project A Plan"), or
(B) as "Project B," if elected by the General Partner, to develop and construct upon the Property
office buildings consisting of approximately 100,000 square feet (collectively, the "Project B
Plan"), together with any and all related on-site and off-site improvements appurtenant thereto;
SDM653581.4
1-6
13.71 WBC. The term "WBC" means WBC Investments LLC, a California limited
liability company.
IN WITNESS WHEREOF, the Partners have executed this Agreement effective as of the
day and year first above written.
"General Partner"ECR CARLSBAD MANAGEMENT, LLC,
a Delaware limited liability company
By: WBC Investments LLC,
a California limited liability company
Its: Co-Managing Member
By:
John C. White, Co-Manager
By: FINEST CITY REALTY ADVISORS, INC., a
California corporation
Its: Co-Managjtte Member .
By:
Charles Abdi, President
"Limited Partner"CARLT-AS INVESTMENTS-,- LrPr,- -
a California limited partnership
By: WBC Investments LLC,
a California limited liability company
Its: General Partner
By:
John C. White, Co-Manager
SDM65358I.4
1-6
-37-
SECRETARY'S CERTIFICATE OF
REAL ESTATE COLLATERAL MANAGEMENT COMPANY
THE UNDERSIGNED, the Secretary of Real Estate Collateral Management
Company, a Delaware corporation (the "Corporation"), does hereby certify that the
following is a true and correct copy of the resolutions adopted by the unanimous written
consent of the Board of Directors of the Corporation on December 12, 2001 and the same
are in full force and effect as of the date hereof:
RESOLVED, that the Corporation is hereby authorized to enter into all
agreements, indentures, mortgages, deeds, conveyances, licenses, permits, transfers,
contracts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds in an aggregate amount of up to One Hundred and Thirty Million
Dollars ($130,000,000), undertakings, proxies and other instruments or documents
required or deemed necessary by an Authorized Officer to be delivered in connection
with the development of the property owned by the Corporation and the project known as
thee Villages of La Costa.
FURTHER RESOLVED, that the President or any Vice President of the
Corporation (the "Authorized Officers") are hereby authorized and directed to execute
and deliver on behalf of the Corporation any documents and instruments necessary or
appropriate to effectuate and to perform such other acts as may be deemed necessary and
proper to effectuate the intent and purposes of the foregoing resolution.
FURTHER RESOLVED, the Corporation does hereby ratify and confirm all
actions that have been taken in conjunction with the foregoing resolutions as of the date
hereof.
IN WITNESS WHEREOF, I have hereto set my hand on this 14th day of
December, 2001.
L.S. Mattenson,
Secrerary
**$!$#*
REAL ESTATE COLLATERAL MANAGEMENT COMPANY
CERTIFICATE OF INCUMBENCY
I, L. C. Zaremba, the Assistant Secretary of Real Estate Collateral Management
Company, a Delaware corporation, certify that the persons named below are officers of
this corporation, holding the offices set forth opposite their names, and that their
appointments have not been cancelled as of the date hereof.
T. P. Shanley
F. R. Schimel
D. A. Watts
L. C. Klug
President
Vice President
Vice President
Vice President
Dated: August 11,2003
. C. Zaremba,
Assistant Secretary
\\PHILVHCL30 VOL.3 SERVER\VOL3\DEFnHILEGAL\3nlaw\LAW\HCFS\LaCosta\RECMincunib2003.cert.doc
HFC COMMERCIAL REALTY, INC.
Certification of Resolutions of the
Board of Directors
The undersigned, Lynne C. Zaremba, does hereby certify that she is a duly appointed
and qualified Assistant Secretary of HFC COMMERCIAL REALTY, INC., a Delaware
corporation (the "Company").
The undersigned further certifies that attached hereto and marked as Exhibit A is a
true and complete copy of the resolutions duly adopted by the Board of Directors of the
Company by unanimous written consent dated as of May 6, 1987, and that said resolutions
have not been amended or rescinded and are now in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand this 11th day of July 2005.
fr?(g.
f~11 T: C. Zaremba
Assistant Secretary
U
(corporate seal)
I:\3Nlaw\LAW\HCFS\LaCosta\HFC CR 05061987ResCert.doc
EXHIBIT A
"RESOLVED, that the President or any Vice President and the Secretary and
Assistant Secretary of this Corporation be and they are hereby authorized and empowered
in the Corporation's name and on its behalf:
to take such further action and to execute such other documents for such additional
purposes necessary or desirable to carry on the business and conduct the affairs of
this Corporation and as such officers may deem from time to time advisable for the
best interests of the Corporation."
I:\3Nlaw\LAW\HCFS\LaCosta\HFC CR 05061987ResCert.doc
O
HFC COMMERCIAL REALTY, INC.
Certificate of Incumbency
and Signature of Officer
The undersigned certifies that she is the Assistant Secretary of HFC Commercial Realty,
Inc. (the "Company"), a Delaware corporation, and that, as such, she is duly authorized to execute
this Certificate on behalf of the Company, and further certifies that the following person is, up to
and including the date of this Certificate, the duly elected, qualified and acting officers of the
Company as specified below, and that the signature of such person appearing opposite his name is
his own true signature.
Name Title Signature
F. R. Schimel Vice President
WITNESS the signature of the undersigned this 2nd of February, 2004.
fe C. Zaremba
istant Secretary
[SEAL]
l:\3nlaw\LAW\HCFS\HFCcomlrealty.lncumbCert.doc
Gornmunity
Building Communities. Changing Lives.
September 6, 2003
City Engineer
City of Carlsbad
2075 Las Palmas Drive
Carlsbad, CA 92009
RE: La Costa Paloma - Affordable Apartment Community at the Greens
Dove Family Housing Associates, L.P.
Dear City Engineer:
This is to confirm that Susan M. Reynolds, Executive Director of Community
Ho using Works is the duly authorized signatory on behalf of Community Housing Works,
General Partner of Dove Family Housing Associates, L.P, for all legal documents
pertaining to Dove's affordable apartment community at the Greens, which is now under
construction at Dove Lane in the City of Carlsbad. As Executive Director, Ms. Reynolds
is an officer of the Community HousingWorks corporation in accordance with its bylaws.
Please convey this authorization to any parties who may require this confirmation.
Thank you.
Sincerely,
Jbhn R. Mawhinney ^rt\W
President
Board of Directors
D 1820 South Escondido Blvd., Suite 101, Escondido, CA 92025
Phone: 760-432-6878 Fax: 760-432-6883
D 4089 Fairmount Avenue, San Diego, CA 92105Phone: 619-282-6647 Fax: 6i9-64o-7i 19
CHARTERED MEMBER www.communityhousingworks.org
JUN-06-2003 FR1 04:46 PM COMMUNITY HOUSINGWORKS FAX NO. 760 740 6866 P. 04
COMMUNITY HOUSINGWORKS
AUTHORIZING RESOLUTION
CORPORATE AND PARTNERSHIP ACTION
RE: FINANCING OF DOVE FAMILY APARTMENTS
At a duly constituted meeting of the Board of Directors of Community Housing Works, a
California nonprofit public benefit corporation (the "Corporation") held on March 21, 2001, the
following resolutions were adopted:
WHEREAS, the Corporation is a general partner of Dove Family Housing Associates, a
California Limited Partnership, along with Mercy Housing West, a California nonprofit public
benefit corporation as its co-general partner (the "Partnership").
WHEREAS, the Partnership owns certain real property located in the City Carlsbad, San
Diego County, California (the "Property");
WHEREAS, the Board of Directors of the Corporation, acting on its behalf and as the general
partner of the Partnership, deems it to be in the best interests of the Partnership to borrow an amount
not to exceed $20,000,000 financed with the proceeds of tax exempt bonds (the "Bond Loan") issued
by the City of Carlsbad (the "City") and to enter into any and all documents, including but not
limited to a deed of trust, a loan agreement, a regulatory agreement and any other types of
agreements necessary to consummate the Bond Loan;
WHEREAS, the Board of Directors of the Corporation, acting as the general partner of the
Partnership, deems it to be in the best interests of the Partnership to obtain a letter of credit from
Citibank (West), FSB issued by Citibank, N.A., to secure the Bond Loan (the "Letter of Credit") and
to enter into any and all documents with Citibank (West), FSB and Citibank, N.A., including but not
limited to a reimbursement agreement, a deed of trust, assignments, indemnities, a bond pledge and
security agreement, an assignment of general partnership interest and any other types of agreements
necessary to consummate the issuance of the Letter of Credit;
WHEREAS, the Board of Directors of the Corporation, acting as the general partner of the
Partnership, deems it to be in the best interests of the Partnership to enter into all agreements
required by the underwriter, Red Capital Markets, Inc., including but not limited to a bond purchase
agreement, a remarketing agreement and any other types of agreements necessary to consummate
the marketing of the Bonds;
WHEREAS, the Board of Directors of the Corporation, acting as the general partner of the
Partnership, deems it to be in the best interests of the Partnership to take all steps necessary to
approve the Preliminary Official Statement and the Official Statement in connection with the
issuance and marketing of the Bonds;
C;\wiNDOMS\Tsmporsry Interntc FHen\OLKlO'M\ir«Bopcnbond£inCHK.vpci
RFCFIVFD TIMF JUN. fi. 4:SOPM PRINT TIME JUN. 6. 4:54PM
JUN-06-2003 FRI 04:47 Ptl COMMUNITY HOUSINGWORKS FAX NO. Y6U Y4U r1. Ub
WHEREAS, the Board of Directors of the Corporation, acting in its sole capacity, deems it
to be in the best interests of the Corporation to execute a repayment guaranty in favor of Citibank
(West), FSB and Citibank, N.A. in connection with the issuance of the Letter of Credit;
WHEREAS, the Board of Directors of the Corporation, acting as the general partner of the
Partnership, deems it to be in the best interests of the Partnership to borrow the approximate amount
of $2,070,000 from the City (the "City Loan") and shall enter into any and all documents, including
but not limited to a loan agreement, a deed of trust, a promissory note, regulatory agreement and any
other types of agreements necessary to consummate the City Loan;
NOW, THEREFORE, BE IT RESOLVED: That the Partnership shall borrow the Bond Loan
and shall enter into any and all documents, including but not limited to a deed of trust, a promissory
note, a loan agreement, a regulatory agreement and any other types of agreements necessary to
consummate the Bond Loan;
FURTHER RESOLVED: That the Partnership shall obtain the Letter of Credit and shall
enter into any and all documents, including but not limited to a reimbursement agreement, a deed
of trust, assignments, indemnities, a bond pledge and security agreement, an assignment of general
• partnership interest and any other types of agreements necessary to consummate the issuance of the
Letter of Credit;
FURTHER RESOLVED: That the Partnership shall enter into all agreements required by the
underwriter, Red Capital Markets, Inc., including but not limited to a bond purchase agreement, a
remarketing agreement and any other types of agreements necessary to consummate the marketing
of the Bonds;
FURTHER RESOLVED: That the Partnership shall take all steps necessary to approve the
Preliminary Official Statement and the Official Statement in connection with the issuance and
marketing of the Bonds;
FURTHER RESOLVED: That the Corporation, acting in its sole capacity, shall enter into
all agreements required by Citibank (West), FSB and Citibank, N.A., including but not limited to
a repayment guaranty and any other types of agreements necessary to consummate the issuance of
the Letter of Credit;
FURTHER RESOLVED: That the Partnership shall borrow the City Loan and shall enter into
any and all documents, including but not limited to a loan agreement, a deed of trust, a promissory
note, a regulatory agreement and any other types of agreements necessary to consummate the City
Loan;
FURTHER RESOLVED: That any officer or the executive director of the Corporation,
acting alone, on behalf of the Corporation in its sole capacity and in its capacity as the general
C:\WINDOWS\Taraporary Internet Pll«a\OU<10'I4\reBDptnl>ona£inCHW.wpa
RECEIVED TIME JUN. 6. 4:50PM PRINT TIME JUN. 6. 4:53PM
JUN-06-20p3_FRI 04:47 PN COntlUNlTY HUUSlNliWUKMi fHA NU. (DU inu DODO r. uo
partner of the Partnership, shall be authorized and directed to execute any and all necessary
documents, including, but not limited to loan agreements, deeds of trusts, notes, regulatory
agreements assignments, indemnities, a bond pledge and security agreement, a bond purchase, a
remarketing agreement, a repayment guaranty and shall take any and all further action necessary to
consummate the activity contemplated in this Resolution.
C:\WIWOWS\Tcmporairv Internal Filce\OLi<lim\r«Eoptnbon<irinCHW.«pa
TIMF JUN. 6. 4:^flPM PRINT TIME M, 6. 4:53PM
JUN-06-2003 FRI 04:47 PM COMMUNITY HOUSINGWORKS FAX NO. 760 740 6866 P. 07
I, the undersigned, hereby certify that the foregoing is a true copy of the Resolution adopted
by the Board of Directors of the above mentioned Corporation at a meeting of said Board held on
the aforementioned date, and that said Resolution is in full force and effect, and that the Board of
Directors of said Corporation, has, and at the time of the adoption of said Resolution had, full power
and authority to appoint the said executive director and officer(s) therein named who have full power
and lawful authority to exercise the same.
Dated:,2003
C:\NJNDCWS\Tempor9ry Internee rileo\OfcK10«\r«i<optnbDnd£inCHM.up<i
RFCFIVFD TIMF M. fi. 4:50PM PRINT TIME JUN. 6, 4:53PM
MERCY HOUSING WEST
Mercy Housing System
INCUMBENCY CERTIFICATE
The undersigned, being the duly elected Secretary of Mercy Housing West, a California
nonprofit public benefit corporation (the "Corporation"), hereby certifies as follows:
1. The persons named below now hold the offices of the Corporation set forth opposite
their names and are authorized by the Corporation to act as such:
Name Office
Sr. Lillian Murphy, RSM President
Patricia O'Roark Vice President
Jane M. Graf Vice President
Val Agostino Vice President
Dara Kovel Vice President
Chuck Wehrwein Vice President
Kathleen Krebs Vice President/Treasurer
John Mclntyre Secretary
Trish Nelson Asst. Secretary
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this 29th day of
September, 2003.
Bv:
Trish Nelson <rr?TS
i'j\ "Assistant Secretary of ,.— „
Mercy Housing Housing West, r«? ^9 t-J
a California nonprofit public " u
benefit corporation —*a\Mu
Mercy Housing is co-sponsored by SWOT/ commurafo of Catholic women religions.
601 EAST 18TH AVENUE, SUITE 150 • DENVER, COLORADO 80203, • 303.830.3300 • FAX 303.830.3301
www.mercyhousing.org
JUN-06-2003 FRI 04:48 PH COMMUNITY HOUSINGWORKS FAX NO. 760J40 6866 P. 13
MERCY HOUSING WEST
AUTHORISING BESOLUTION
CORPORATE AND PARTNERSHIP ACTION
RE: FINANCING OF DOVE FAMILY APARTMENTS
At a duly constituted meeting of the Board of Directors ofMercy Housing West, a California nonprofit
public benefit corporation (the "Corporation") held on ^\\jj^j 3. 2003, tKe following resolutions
were adopted: *>
WHEREAS, the Corporation is » general partner of Dove Family Housing Associates, a California
Limited Partnership, along with CcmmimityHousingWorks, a Califbmianonprofit public benefit corporation
as its co-general partner (the 'Partnership").
WHEREAS, the Partnership owns certain real property located in the City of Carlsbad, San Diego
County, California (the "Property");
WHEREAS, the Board of Directors of the Corporation, acting on its behalf and as the general partner
of the Partnership, deems it to be in the best interests of the Partnership to barrow an amount not to exceed
$20,000,000 financed with the proceeds of tax exempt bonds (the "Bond Loan") issued by die City of Carlsbad
(the "City") and to enter into any and all documents, including but not limited to a deed of trust, a loan
agreement, a regulatory agreement and any othertypes of agreements necessary to consummate the Bond Loan;
WHEREAS, the Board of Directors of the Corporation, acting as the general partner of the
Partnership, deems it to be in the best interests of the Partnership to obtain a letter of credit from Citibank
(West), FSB issued by Citibank, N.A,, to secure the Bond Loan (the "Letter of Credit") and to enter into any.
and all documents with Citibank (West), FSB and Citibank, N.A., including but not limited to a reimbursement
' agreement, a deed of trust, assignments, indemnities, a bond pledge and security agreement, an assignment of
general partnership interest and any other types of agreements necessary to consummate the issuance of the
Letter of Credit,
WHEREAS, the Board of Directors of the Corporation, acting as the general partner of the
Partnership, deems it to b* in the best interests of the Partnership to enter into all agreements required by the
underwriter, Red Capital Markets. Inc.. including but notlimfted to a bond purchase agreement, a remarlttting
agreement and any other types of agreements necessary to consummate the marketing of the Bonds;
WHEREAS, the Board of Directors of the Corporation, acting as die general partner of the
Partnership, deems it to be in the best interests of the Partnership to take all steps necessary to approve the
Preliminary Official Statement and the Official Statement in connection with the issuance and marketing of the
Bonds;
WHEREAS, the Board of Directors of the Corporation, acting as the general partner of the
Partnership, deems it to be in (he best interests of the Partnership to borrow the approximate amount of
$2,070,000 from the City (the "City Loan") and shall enter into any and all documents, including but not
limited to a loan agreement, a deed of trust, a promissory note, regulatory agreement and any other types of
agreements necessary to consummate the City Loan; ,
ReHlutlen-McTeyHMiihigWeii^Dev»F*mily4ix: 1 of 2
too/pa -ar--- r«.iTcr,nu"0/e0 ^RFmVFD TIMF .IIIN fi 4'ROPM PRINT TIMF JUN. fi
- JUN~0_6:2003 F-R.L04:48 PM COMMUNITY HOUSINGWORKS FAX NO. 760 740 6866 P. 14
NOW, THEREFORE, BB IT RESOLVED: That *he Partnership shaU borrow the Bond Loan and shall
enter into any and all documents, including but not limited to a deed of trust, a promissory note, a loan
agreement, 9. regulatory agreement and any other types of agreements necessary to consummate the Bond Loan;
FURTHER RESOLVED: That the Partnership shall obtain the Letter of Credit and shall enter into any .
and all documents, including but nor limited to a reimbursement agreement, a deed of trust, assignments,
indemnities, a bond pledge and security agreement, an assignment of general partnership interest and any other
types of agreements necessary to consummate the issuance of the Letter of Credit;
FURTHER RESOLVED: That the Partnership shall enter into all agreements required by the
underwriter, Red Capital Markets, Inc., including but not limited to a bond purchase agreement, a wmarketing
agreement and any other types of agreements necessary to consummate the marketing of Ac Bonds;
KJRTHER RESOLVED: That the Partnership shall take aflstqjs necessary to approve ftePreli
Official Statement and the Official Statement in connection with the issuance and marketing of the Bonds;
FURTHER RESOLVED; That Ihe Partnership shall boirow the City Loan and shall enter into any and
all documents, including but not limited to a loan agreement, a deed of trust, a promissory note, a regulatory
agreement and any other types of agreements necessary to consummate the City Loan;
FURTHER RESOLVED: That any officer of the Corporation, acting alone, on behalf of the
Corporation in its sole capacity and in its capacity as the general partner of the Partnership, shall be authorized
and directed to execute any and all necessary documents, including, but not limited to loan agreements, deeds
of trusts, notes, regulatory agreements assignments, indemnities, a bond pledge and security agreement, a bond
purchase, a renurkea'ng agreement and shall take any and all further action necessary to consummate the
activity contemplated in this Resolution.
I, The undersigned, hereby certify that the foregoing is a due copy of the Resolution adopted by the
Board of Directors of the above mentioned Corporation at a meeting<of said Board held on the aforementioned
date, and mac said Resolution is in full force and effect, and that the Board of Directors of said Corporation,
has, and at the time of the adoption of said Resolution had, full power and authority to appoint the said
o£ficer(s) therein named who have fall power and lawful authority to exercise the same.
Dated.-.2003
By:.
Secretary
-Meroy Housing WctfDov* FWtrily.doc 2 of 2
W/P8 -PFPFIVFR T1MF PRINT TIMF^iffT
—N-
FIRST AMENDMENT TO OPERATING AGREEMENT
FOR
WBC INVESTMENTS LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
This First Amendment to Operating Agreement (this "Amendment") is made as of July 27,2005,
by and among the parties listed on the signature page hereof (collectively referred to as the u
"Members" or individually as a "Member"), with reference to the following facts:
A. The Members have entered into that certain Operating Agreement for WBC Investments
LLC, a California limited liability company, dated January 10,2002 (the "Agreement").
B. The Members now desire to amend the Agreement as set forth in this Amendment.
NOW, THEREFORE, the Members hereby amend the Agreement as set forth below.
1. Management, Article IV of the Agreement is amended in its entirety as follows:
ARTICLE IV
MANAGEMENT AND CONTROL OF THE COMPANY
4.1 Management by Co-Managers. The business, property and affairs
of the Company shall be managed by John C. White and
Christopher C. Calkins as Co-Managers. Except for situations in
which the approval of the Members is expressly required by the
Articles or this Agreement, the Co-Managers shall each have full
and complete authority, power, and discretion to manage and
control the business, property and affairs of the Company, to make
all decisions regarding those matters and to perform any and all
other acts or activities customary or incident to the management of
the Company's business, property and affairs, and conduct all
banking business of the Company including but not limited to,
each as sole signatory, opening, writing checks on, and closing any
bank account in the name of the Company. The Co-Managers shall
each have the express authority to borrow money from any party,
issue evidences of indebtedness in connection therewith, refinance,
increase the amount of, modify, amend, or change the terms of, or
extend the time for, payment of any indebtedness or obligation of
the Company, and secure such indebtedness by mortgage, deed of
trust, pledge, security interest, or other lien on Company assets.
Except as provided in Section 4.2 below, the Co-Managers shall
each have the express authority as sole signatory to execute any
deed, instrument, document or other writing on behalf of the'
Company.
4.2 Limitations on Power of Manager. No Manager shall have
authority to cause the Company to engage in the following
transactions without first obtaining the approval of Members
holding a majority of the Units:
A. The sale, exchange or other disposition of all, or substantially
all, of the Company's assets occurring as part of a single
transaction or plan, or in multiple transactions over a month period,
except in the orderly liquidation and winding up of the business of
the Company upon its duly authorized dissolution.
B. The merger of the Company with another limited liability
company or corporation, general partnership, limited partnership or
other entity (except that any act which would cause a Member to
incur personal liability for the obligations of the Company or its
successor shall also require the consent of such Member).
C. An alteration of the authorized businesses of the Company as
set forth in Section 1.4.
D. Any act which would make it impossible to carry on the'
ordinary business of the Company.
E. The confession of a judgment against the Company.
F. Any other transaction described in this Agreement as requiring
the approval, consent or vote of the Members.
4.3 Member Approval. No annual or regular meetings of the Members
are required to be held. However, if such meetings are held, such
meetings shall be noticed, held and conducted pursuant to the Act.
In any instance in which the approval of the Members is required
under this Agreement, such approval may be obtained in any
manner permitted by the Act. Unless otherwise provided in this
Agreement, approval of the Members shall mean the approval of
Members who hold a majority of the Units.
4.4 Devotion of Time. The Co-Managers and each Member shall
devote whatever time or effort as it, he or she deems appropriate
for the furtherance of the Company's business.
4.5 Competing Activities. The Co-Managers, Members and their
Affiliates may engage or invest in any activity, including without-
limitation those that might be in direct or indirect competition with
s:\mrb\contracts\wbcamendtoopagmt.doc
the Company. Neither the Co-Managers, the Company nor any
Member shall have any right in or to such other activities or to the
income or proceeds derived there from. No Co-Manager or
Member shall be obligated to present any investment opportunity
to the Company, even if the opportunity is of the character that, if
presented to the Company, could be taken by the Company. The
Co-Managers and each Member shall have the right to hold any
investment opportunity for his or her own account or to
recommend such opportunity to persons other than the Company.
The Members acknowledge that the Co-Managers, certain
Members and their affiliates own and/or manage other businesses,
including businesses that may compete with the Company and for
the Co-Manager's or Member's time. Each Member hereby waives
any and all rights and claims which he or she may otherwise have
against the Co-Manager, other Members and their affiliates as a
result of any such activities.
4.6 Transactions between the Company and the Co-Managers.
Notwithstanding that it may constitute a conflict of interest, the
Co-Managers, Members and their Affiliates may engage in any
transaction with the Company so long as such transaction is not
expressly prohibited by this Agreement and so long as the terms
and conditions of such transaction, on an overall basis, are fair and
reasonable to the Company and are at least as favorable to the
Company as those that are generally available from persons
capable of similarly performing them or if Members holding a
majority of the Units held by the Members having no interest in
such transactions (other than their interests as Members) approve
the transaction in writing.
4.7 Removal of Co-Manager. A Co-Manager may be removed at any
time, with or without cause, by affirmative vote of a majority of the
Units at a meeting called expressly for that purpose. Any removal
shall not affect the Co-Manager's rights as a Member or constitute
a withdrawal of a Member.
4.8 Vacancies. Any vacancy in the position of Co-Manager may be
filled by the affirmative vote or written consent of a majority of the
Units.
2. Bank Accounts. The first sentence of Section 8.3 of the Agreement is amended in its
entirety to read, "The Co-Managers shall maintain the funds of the Company in one or more
separate bank accounts in the name of the Company, and shall not permit the funds of the
Company to be commingled in any fashion with the funds of any other person."
s:\mrb\contracts\wbcamendtoopagmt.doc
3. Capitalized Terms. All capitalized terms used in this Amendment shall have the same
meaning as defined in the Purchase Agreement.
4. Counterparts. This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which shall constitute one Amendment.
5. Full Force and Effect. Except as provided herein, all of the terms and conditions of the
Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, all of the Members of WBC Development LLC, a California limited
liability company, have executed this Amendment, effective as of the date written above.
s:\mrb\contracts\wbcamendtoopagmtdoc
CERTIFICATE OF SECRETARY
OF LENNAR HOMES OF CALIFORNIA, INC.
I, Sherrie Sarasua, Assistant Secretary of LENNAR HOMES OF CALIFORNIA, INC. hereby
certify that the following is a true and correct copy of Resolution duly adopted by the Board of Directors of
LENNAR HOMES OF CALIFORNIA, INC. on July 17, 1998 and that said Resolution is in full force and
effect and has not been rescinded or modified:
RESOLVED, that Robert W. Garcin is elected to the office of Vice President of this Corporation.
Dated: January 23, 2003
/
i^nerrie Sarasua, Assistant Secretary of
Lennar Homes of California, Inc.
LENNAR BRESSI, CT 99-03 & CT 00-06, SIGNATURE BLOCK
APPROVED BY JULIA COLEMAN
12/09/02
Applicant:
Lennar Bressi Ranch Venture LLC, a California
Limited Liability Company
By: Lennar Bressi Carlsbad LLC, a California
Limited Liability Company, Its Managing
Member
By: Lennar Homes of California/fnc., a
Cajilbfn^torporation, Itsplanaging
^i(sign here)
ROBERT W. GARCIN, V!CF.
(print name here)
(title and organization of signatory)
By:
(sign here)
(print name here)
(title and organization of signatory)
OPERATING AGREEMENT
of
ECR CARLSBAD MANAGEMENT, LLC
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
UNDER THE SECURITIES ACT OF 1933, 15 U.S.C. § 15b ET SEP.. AS AMENDED (THE "FEDERAL ACT"1. IN
RELIANCE UPON ONE (1) OR MORE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE
FEDERAL ACT. IN ADDITION, THE ISSUANCE OF THIS SECURITY HAS NOT BEEN QUALIFIED UNDER
THE DELAWARE CORPORATE SECURITIES LAW OR ANY OTHER STATE SECURITIES LAWS
(COLLECTIVELY, THE "STATE ACTS"). IN RELIANCE UPON ONE (1) OR MORE EXEMPTIONS FROM THE
REGISTRATION PROVISIONS OF THE STATE ACTS. IT IS UNLAWFUL TO CONSUMMATE A SALE OR
OTHER TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN TO, OR TO RECEIVE ANY
CONSIDERATION THEREFOR FROM, ANY PERSON OR ENTITY WITHOUT THE OPINION OF COUNSEL FOR
THE COMPANY THAT THE PROPOSED SALE OR OTHER TRANSFER OF THIS SECURITY DOES NOT
AFFECT THE AVAILABILITY TO THE COMPANY OF SUCH EXEMPTIONS FROM REGISTRATION AND
QUALIFICATION, AND THAT SUCH PROPOSED SALE OR OTHER TRANSFER IS IN COMPLIANCE WITH ALL
APPLICABLE STATE AND FEDERAL SECURITIES LAWS. THE TRANSFER OF THIS SECURITY IS FURTHER
RESTRICTED UNDER THE TERMS OF THIS AGREEMENT.
SDU653590.3
1-6
4*7
OPERATING AGREEMENT
of
ECR CARLSBAD MANAGEMENT, LLC
This Operating Agreement is made and entered into, as of the Effective Date, by and
among (i) WBC Investments LLC, a California limited liability company ("WBC") and (ii)
Finest City Realty Advisors, Inc., a California corporation ("FCRA") for the purpose of forming
a Delaware limited liability company in accordance with the provisions hereinafter set forth.
ARTICLE I
DEFINITIONS
The following terms, as used herein, shall have the following respective meanings:
1.1 Act. The Delaware Limited Liability Company Act, Section 18-101, et. seq.. of
Title 8, Chapter 18 of the Delaware Laws, as amended from time-to-time.
1.2 Additional Member. A member other than an Initial Member or a Substitute
Member who has acquired a Membership Interest from the Company.
1.3 Affiliate. Any person or entity which, directly or indirectly through one (1) or
more intermediaries, controls or is controlled by or is under common control with another person
or entity. The term "control" as used herein (including the terms "controlling," "controlled
by," and "under common control with") means the possession, direct or indirect, of the power
to (i) vote fifty percent (50%) or more of the outstanding voting securities of such person or
entity, or (ii) otherwise direct management policies of such person or entity by contract or
otherwise.
1.4 Assignee. A transferee of a Membership Interest who has not been admitted as a
Substitute Member.
1.5 Assignor, A transferor of a Membership Interest.
1.6 Business Day. Any day other than Saturday, Sunday or any federal holiday.
1.7 Capital Account. The account maintained for a Member or Assignee determined
in accordance with Section 5.3.
1.8 Capital Contribution. Any contribution actually made to the capital of the
Company pursuant to Sections 5.1 and 5.2, by or on behalf of a Member or Assignee.
1.9 Cash Flow. The excess, if any, of all cash receipts of the Company as of any
applicable determination date in excess of the sum of (i) all cash disbursements (inclusive of any
guaranteed payment within the meaning of IRC Section 707(c) paid to any Holder, and
reimbursements made to the Holders, but exclusive of distributions to the Holders in their
capacities as such) of the Company prior to that date, plus (ii) any reserve for anticipated cash
SD\1653590.3
1-6 1
C 3
1.23 Holder. A Person holding an Economic Interest, whether as a Member or as an
Assignee.
1.24 Income and Losses. With respect to a taxable year of the Company (or other
period for which Income or Losses must be computed), the Company's taxable income or loss
for federal income tax purposes, as determined by the tax advisors employed by the Company for
this purpose, except that: (1) any tax-exempt income of the Company as described in IRC
Section 705(a)(l)(B) shall be treated as gross income of the Company, (2) any nondeductible
noncapital expenditures as described in IRC Section 705(a)(2)(B) shall be treated as a deduction
of the Company, and (3) if any Company property is reflected on the books of the Company at a
value ("Book Value") different from the adjusted tax basis of such property, any item of Income
or Loss with respect to such property shall be computed by reference to such Book Value.
1.25 Initial Capital Contribution. The Capital Contribution agreed to be made by the
Initial Members as described in Section 5.1.
1.26 Initial Members. Those persons identified on Exhibit A attached hereto and
made a part hereof by this reference who have executed the Operating Agreement.
1.27 IRC. The Internal Revenue Code of 1986, as amended.
1.28 Majority. The affirmative vote or written consent of Members having Percentage
Interests in excess of one-half of the Percentage Interests of all the Members entitled to vote on a
particular matter. Assignees and, in the case of approvals to withdrawal where consent of the
remaining Members is required, Dissociating Members, shall not be considered Members
entitled to vote for the purpose of determining a Majority.
1.29 Management Right. The right of a Member to participate in the management of
the Company, including the right to information and to consent or approve actions of the
Company.
1.30 Member. A member as defined by the Act, including all Initial Members,
Substitute Members and Additional Members (but not including any Assignee or any Member
who has Dissociated).
1.31 Membership Interest. A membership interest as defined by the Act.
1.32 Money. Cash or other legal tender of the United States, or any obligation, such as
a deposit in a federally-insured bank or similar financial institution, that is immediately reducible
to legal tender without delay or discount. Money shall be considered to have a fair market value
equal to its face amount.
1.33 Notice. Any notice or other communication which satisfies the following
requirements:
All notices or other communications required or permitted hereunder shall be in writing,
and shall be delivered or sent, as the case may be, by any of the following methods: (i) personal
delivery, (ii) overnight commercial carrier, (iii) registered or certified mail, postage prepaid,
SD\1653590.3
1-6 3
c
3.7 Meetings of Members.
3.7.1 Meetings. Meetings of Members are expressly not required, but may be
held at any place, either within or without the State of Delaware, selected by the Person or
Persons calling the meeting. If no other place is stated or fixed, all meetings shall be held at the
principal executive office of the Company. A meeting of the Members may be called at any time
by any Member by Notice to all Members given not less than ten calendar days nor more than
sixty calendar days before the date of the meeting. The Notice shall state the place, date, and
hour of the meeting and the general nature of the business to be transacted.
3.7.2 Action Without a Meeting. Any action that may be taken at any meeting
of the Members may be taken without a meeting if a consent in writing, setting forth the action
so taken, is signed and delivered to the Company by all Members entitled to vote thereon.
3.8 Right of Inspection: Provision of Records to Members.
3.8.1 Inspection.
(a) Upon the request of any Member or Holder for purposes
reasonably related to the interest of that Person as a Member or Holder, the Company shall
promptly deliver to the requesting Member or Holder, at the expense of the Company, a copy of
the information required to be maintained by Sections 2.6.1, 2.6.2 and 2.6.4.
(b) Each Member and Holder has the right, upon reasonable request
for purposes reasonably related to the interest of the Person as Member or Holder, to:
(i) inspect and copy during normal business hours any of the
Company records described in Sections 2.6.1 through 2.6.7; and
(ii) obtain from the Company, promptly after their becoming
available, a copy of the Company's federal, state, and local income tax or information returns for
each Fiscal Year.
3.8.2 Tax Information. The Company shall send or cause to be sent to each
Holder within ninety (90) calendar days after the end of each taxable year such information as is
necessary to complete their respective federal and state income tax or information returns, and, if
the Company has thirty-five or fewer Holders, a copy of the Company's federal, state, and local
income tax or information returns for the year.
3.8.3 Relationship with Act. Nothing in this Section 3.8 shall be construed as in
any way limiting a Member's right of inspection as set forth in Section 18-305 of the Act.
ARTICLE IV
MANAGEMENT: OFFICERS
4.1 Management. Subject to Section 4.2, the business and affairs of the Company
shall be managed and all the Company powers shall be exercised by the Members, acting by
unanimous consent. The Members may delegate the management of the day-to-day operation of
SD\1653590.3
1-6
c
the Company to the officers of the Company or other Persons provided that the affairs of the
Company shall be managed and all powers shall be exercised under the ultimate direction of the
Members, including, without limitation, the following:
4.1.1. To monitor, supervise and manage all aspects of the Partnership and the
Project;
4.1.2. To review, select, analyze, structure, negotiate, complete and enter into,
execute and consummate all agreements, leases, instruments and other documents and do all
other acts advisable in connection with the Partnership, the Project and any other Property
acquired by the Company and Company's business and affairs;
4.1.3. To institute, prosecute, and defend any Proceeding in the Company's
name;
4.1.4. To borrow money and incur indebtedness from third parties (whether
affiliated or unaffiliated with any Member) for the purposes of the Company, and to cause to be
executed and delivered therefor in the Company name promissory notes, bonds, debentures,
deeds of trust, mortgages, pledges, hypothecations or other evidences of debt and securities
therefor;
4.1.5. To change the principal place of business of the Company from one
location to another as provided in Section 2.4, and to fix and locate from time-to-time one or
more subsidiary offices of the Company;
4.1.6. To select and remove all of the officers, agents and employees of the
Company, to prescribe such powers and duties for them as may not be inconsistent with law,
with the Certificate or this Operating Agreement, to fix their compensation, and to require from
them security for faithful service;
4.1.7. To employ independent certified public accountants to perform annual
audits of the Company, if required, and to provide such additional services as the Members may
from time-to-time desire; and
4.1.8. To employ at the expense of the Company such agents, employees,
managers, accountants, attorneys, consultants, and other persons necessary or appropriate to
carry out the business and affairs of the Company, and to pay such compensation to such persons
as is competitive with the compensation paid to unaffiliated persons in the area for similar
services.
4.1.9. In connection with the formation of the Partnership, WBC, acting alone as
a Member of the Company acting as general partner of the Partnership, shall have the authority
to execute a Certificate of Limited Partnership (Form LP-1) and file it in the Office of the
California Secretary of State and obtain an employer identification number for the Partnership.
4.2 Division of Responsibilities. In its capacity as general partner of the Partnership,
the Company is responsible for taking all actions necessary to acquire, develop, construct,
market and sell the Project. Accordingly, notwithstanding the provisions of Section 4.1, the
SD\I 653590.3
1-6 9
c
portion hereof or any Exhibit attached hereto. This Operating Agreement (including the Exhibits
attached hereto) contains and constitutes the entire understanding between the Members, and
supersedes any prior or contemporaneous understanding, correspondence, negotiations or
agreements between the Members respecting the within subject matter. Each Member agrees to
perform any further acts, and to execute and deliver any further documents and instruments, as
may be reasonably necessary or desirable to implement the provisions of this Operating
Agreement.
IN WITNESS WHEREOF, this Operating Agreement is entered into as of the date first
set forth above.
WBC INVESTMENTS LLC,
a California limited liability company
By:
. White, Co-Manager
FINEST CITY REALTY ADVISORS, INC.,
a California corporation
By:
Chaiies Abdi, President
SD\1653590.3
1-6 30
Percentage Interest
50%
50%
Initial Capital
Contribution
$193,000
$193,000
EXHIBIT A
Percentage Interest and Initial Capital Contribution
Member and Address
WBC
FCRA
II. Allocation Between Members of Acquisition Fee and Development Fee
A. Initially, the allocation of these fees shall be as follows:
Member Acquisition Fee Development Feg
WBC 50% 58.33%
FCRA 50% 41.67%
B. From and after the City of Carlsbad's certification of a building pad on the
Property, the allocation of these fees shall be as follows:
Member Acquisition Fee Development Fee
WBC 50% 50%
FCRA 50% 50%
SD\1653590.3
1-6
SUBDIVISION GUARANTEE
OrderNo. 13066274 - uso Fee: $
Dated: May 31, 2002 at 7:30 A.M.
Subdivision: CITY OF CARLSBAD TRACT NO. 99-03 LA COSTA GREENS
CHICAGO TITLE INSURANCE COMPANY
a corporation, herein called the Company
GUARANTEES
The County of SAN DIEGO and any City within which said subdivision is located in a sum not
exceeding $1,000.00 that, according to those public records which, under the recording laws, impart constructive
notice of matters affecting the title to the land included within the exterior boundary shown on the map of the above
referenced subdivision, the only parties having any record title interest in said land whose signatures are
necessary, under the requirements of the Subdivision Map Act, on the certificates consenting to the
recordation of said map and offering for dedication any streets, roads, avenues, and other easements offered
for dedication by said map are as set forth in Schedule A.
Issued by:
CHICAGO TITLE INSURANCE COMPANY925 "B" STREET
SAN DIEGO, CA 92101
PHONE NO. (619) 239-6081
FAX NO. (619) 544-6277
Patrick F. Stone
President
Secretary
Order No: 13066274 -U50
Dated: May 31, 2002
Siibdivision:
at7:30 A.M.
Fax Number: (619)544-6292
SCHEDULE A
The map hereinbefore referred to is a subdivision of:
SEE ATTACHED DESCRIPTION
The parties hereinbefore referred to are:
OWNERS:
REAL ESTATE COLLATERAL MANAGEMENT COMPANY, A DELAWARE CORPORATION
TRUST DEED HOLDERS:
CHICAGO TITLE COMPANY, AS TRUSTEE UNDER DEED OF TRUST RECORDED NOVEMBER 17, 1988 AS
FILE NO. 88-592631, OFFICIAL RECORDS.
EASEMENT HOLDERS:
(1) THE SIGNATURE OF SAN DIEGO GAS AND ELECTRIC COMPANY, OWNER OF EASEMENTS AS
DISCLOSED BY DEEDS RECORDED FEBRUARY 16, 1920 IN BOOK 798, PAGE 241 OF DEEDS; MARCH
23, 1954 IN BOOK 5179, PAGE 433; APRIL 16, 1954 IN BOOK 5207, PAGE 158; APRIL 19,
1954 IN BOOK 5208, PAGE 399; APRIL 22, 1954 IN BOOK 5212, PAGE 492; MAY 12, 1954 IN
BOOK 5235, PAGE 130; JUNE 18, 1954 IN BOOK 5273, PAGE 432; JULY 27, 1960 AS DOCUMENT
NO. 151772; AUGUST 28, 1969 AS DOCUMENT NO. 158721 AND 158741; FEBRUARY 5, 1971 AS
DOCUMENT NO. 23034; OCTOBER 1, 1997 AS FILE NO. 1997-0488228 AND JUNE 16, 1998 AS
FILE NO. 1998-0366138, ALL OF OFFICIAL RECORDS OF SAN DIEGO COUNTY HAS BEEN OMITTED
UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (A) (3) (A) (I) OF GOVERNMENT CODE,
THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS
NOT REQUIRED BY THE GOVERNING BODY.
(2) THE SIGNATURE OF THE COUNTY OF SAN DIEGO, OWNER OF AN EASEMENT AS DISCLOSED BY
DEED RECORDED JUNE 11, 1943 IN BOOK 1514, PAGE 145 OF OFFICIAL RECORDS OF SAN DIEGO
SEE ATTACHED EXHIBIT
SUBDIVA -12/22/88
Policy No.
Page i
EXHIBIT
COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION
(A) (3) (A) (I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A
FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY.
(3) THE SIGNATURE OF CARLSBAD MUNICIPAL WATER DISTRICT, OWNER OF EASEMENTS AS
DISCLOSED BY DEEDS RECORDED OCTOBER 23, 1961 AS DOCUMENT NO. 183352 AND MAY 11, 1964
AS DOCUMENT NO. 84209, BOTH OF OFFICIAL RECORDS OF SAN DIEGO COUNTY HAS BEEN OMITTED
UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (A) (3) (A) (I) OF GOVERNMENT CODE,
THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS
NOT REQUIRED BY THE GOVERNING BODY.
(4) THE SIGNATURE OF SAN MARCOS COUNTY WATER DISTRICT, OWNER OF AN EASEMENT AS
DISCLOSED BY DEED RECORDED JANUARY 27, 1969 AS DOCUMENT NO. 15564 OF OFFICIAL RECORDS
OF SAN DIEGO COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436,
SUBSECTION (A) (3) (A) (I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT
RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY.
(5) THE SIGNATURE OF THE CITY OF CARLSBAD, OWNER OF EASEMENTS AS DISCLOSED BY DEEDS
RECORDED JULY 24, 1970 AS DOCUMENT NO. 130797; DECEMBER 9, 1983 AS FILE NO.
83-449259; AUGUST 16, 1984 AS FILE NO. 84-312777; DECEMBER 1, 1997 AS FILE NO.
1997-0605498; FEBRUARY 13, 1998 AS FILE NO. 1998-0077152 AND MARCH 20, 1998 AS FILE
NO. 1998-152413, ALL OF OFFICIAL RECORDS OF SAN DIEGO COUNTY HAS BEEN OMITTED UNDER
THE PROVISIONS OF SECTION 66436, SUBSECTION (A) (3) (A) (I) OF GOVERNMENT CODE, THEIR
INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT
REQUIRED BY THE GOVERNING BODY.
(6) THE SIGNATURE OF DANIELS CABLEVISION, SUCCESSOR TO LA COSTA COMMUNITY ANTENNA
SYSTEM, INC., OWNER OF EASEMENTS AS DISCLOSED BY DEEDS RECORDED AUGUST 17, 1982 AS
FILE NO. 82-254573 AND 82-254574, BOTH OF OFFICIAL RECORDS OF SAN DIEGO COUNTY HAS
BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (A)(3)(A)(I) OF
GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND
SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY.
(7) THE SIGNATURE OF COSTA REAL MUNICIPAL WATER DISTRICT, OWNER OF AN EASEMENT AS
DISCLOSED BY DEED RECORDED FEBRUARY 6, 1984 AS FILE NO. 84-043971 OF OFFICIAL RECORDS
OF SAN DIEGO COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436,
SUBSECTION (A) (3) (A) (I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT
RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY.
(8) THE SIGNATURE OF LEUCADIA COUNTY WATER DISTRICT, OWNER OF AN EASEMENT AS
DISCLOSED BY DEED RECORDED MAY 15, 1984 AS FILE NO. 84-180447 OF OFFICIAL RECORDS OF
SAN DIEGO COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION
(A) (3) (A) (I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A
FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY.
(9) THE SIGNATURE OF VALLECITOS WATER DISTRICT, OWNER OF AN EASEMENT AS DISCLOSED BY
DEED RECORDED MARCH 20, 1998 AS FILE NO. 1998-0151414 OF OFFICIAL RECORDS OF SAN
DIEGO COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION
(A) (3) (A) (I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A
FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY.
(10) THE SIGNATURE OF STATE OF CALIFORNIA , OWNER OF AN EASEMENT AS DISCLOSED BY
DEED RECORDED SEPTEMBER 21, 2001 AS FILE NO. 2001-0680640 OF OFFICIAL RECORDS OF SAN
DIEGO COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION
EXHIBITS -12/22/88
Policy No.
Page 2
EXfflBIT
(A) (3) (A) (I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A
FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY.
(11) THE SIGNATURE OF PACIFIC BELL , OWNER OF AN EASEMENT AS DISCLOSED BY DEED
RECORDED MARCH 6, 2002 AS FILE NO. 2002-0189274 OF OFFICIAL RECORDS OF SAN DIEGO
COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION
(A) (3) (A) (I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A
FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY.
EXHIBITS - 12/22/88
Page i DESCRIPTION
Order No. 13066274
PARCEL A:
PARCEL 3 OF PARCEL MAP NO. 1188, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
DECEMBER 20, 1972 AS FILE NO. 340334 OF OFFICIAL RECORDS.
TOGETHER WITH THAT PORTION DESCRIBED AS PARCEL "A" IN DEED TO LA COSTA LAND
COMPANY FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
SEPTEMBER 7, 1973 AS FILE NO. 73-245058 OF OFFICIAL RECORDS, SAID LAND BEING
THAT PORTION DELINEATED AND DESIGNATED AS "NOT A PART OF THIS MAP" ON SAID
PARCEL MAP NO. 1188.
EXCEPTING THEREFROM THAT PORTION OF ALGA ROAD AS DESCRIBED IN DEED TO THE CITY
OF CARLSBAD RECORDED DECEMBER 9, 1983 AS FILE NO. 83-449259 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM PARCEL A OF PARCEL MAP NO. 13427, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 16, 1984 AS FILE NO. 84-031333 OF
OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE CITY OF CARLSBAD BY
DOCUMENT RECORDED DECEMBER 1, 1997 AS FILE NO. 1997-0605498 OF OFFICIAL RECORDS.
AFFECTS PARCEL NOS. 213-030-11, 215-021-07, 215-030-06, 215-030-14, 215-031-08,
215-052-15 AND 215-061-01, 09.
PARCEL A-l:
AN EASEMENT AND RIGHT OF WAY OVER, UNDER, ALONG AND ACROSS THAT PORTION OF
PARCEL A OF PARCEL MAP NO. 13427, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, AUGUST 16, 1984 AS FILE NO. 84-031333 OF OFFICIAL RECORDS, FOR THE
PURPOSES SET OUT IN THAT CERTAIN AGREEMENT RECORDED SEPTEMBER 12, 1985 AS FILE
NO. 85-335690 AND RE-RECORDED FEBRUARY 28, 1986 AS FILE NO. 86-078338, BOTH OF
OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL A, SAID POINT BEING ON THE
NORTHERLY LINE OF THAT CERTAIN DOCUMENT GRANTED TO THE CITY OF CARLSBAD,
DECEMBER 9, 1983 AS FILE NO. 83-449259 OF OFFICIAL RECORDS AND SHOWN ON SAID
PARCEL MAP NO. 13427; THENCE ALONG THE WESTERLY BOUNDARY LINE OF SAID PARCEL A,
THE FOLLOWING COURSES: NORTH 5°12'03" EAST, 409.16 FEET, TO THE BEGINNING OF A
TANGENT 1,000.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY
ALONG THE ARC OF SAID 21°15'34" A DISTANCE OF 371.05 FEET; THENCE NORTH 16°03'31"
WEST, 243.88 FEET, TO THE BEGINNING OF A TANGENT 300.00 FOOT RADIUS CURVE
CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH
A CENTRAL ANGLE OF 45°17'29" A DISTRANCE OF 237.14 FEET; THENCE NORTH 29°13'58"
EAST, 60.63 FEET TO THE BEGINNING OF A TANGENT 800.00 FOOT RADIUS CURVE CONCAVE
NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 26°34'36" A DISTANCE OF 371.08 FEET; THENCE NORTH 2°39'22" EAST,
311.48 FEET TO THE BEGINNING OF A TANGENT 600.00 FOOT RADIUS CURVE, CONCAVE
SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 15°36'09" A DISTANCE OF 163.39 FEET; THENCE NORTH 12°56'47"
WEST, 56.41 FEET, TO THE BEGINNING OF A TANGENT 600.00 FOOT RADIUS CURVE,
W
Page 2 DESCRIPTION
Order No. 13066274
CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH
A CENTRAL ANGLE OF 19°48'26" A DISTANCE OF 207.42 FEET, TO THE BEGINNING OF A
TANGENT 450.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 44°43'38" A DISTANCE OF
351.29 FEET; THENCE NORTH 37°51'59n WEST, 263.43 FEET TO THE BEGINNING OF A
TANGENT 400.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36°24'50" A DISTANCE OF
254.22 FEET; THENCE NORTH 74°16'49" WEST, 495.90 FEET; THENCE NORTH 33°21'02"
WEST, 99.22 FEET; THENCE LEAVING SAID WESTERLY BOUNDARY LINE SOUTH 74°16'49"
EAST, 516.83 FEET TO THE BEGINNING OF A TANGENT 450.00 FOOT RADIUS CURVE,
CONCAVE SOUTHWESTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH
A CENTRAL ANGLE OF 36°24'50" A DISTANCE OF 285.99 FEET; THENCE SOUTH 37°51'59"
EAST, 315.82 FEET, TO THE BEGINNING OF A TANGENT 480.00 FOOT RADIUS CURVE,
CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE
SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 34°16'12" A DISTANCE OF 287.10 FEET; THENCE SOUTH 03°35'47"
EAST, 281.56 FEET; THENCE SOUTH 5°49'18" EAST, 228.98 FEET; THENCE SOUTH 8°22'00"
WEST, 100.50 FEET; THENCE SOUTH 2°39'22" WEST, 211.48 FEET, TO THE BEGINNING OF A
TANGENT 825.00 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26°34'36" A DISTANCE OF
382.68 FEET; THENCE SOUTH 29°13'58" WEST, 60.63 FEET, TO THE BEGINNING OF A
TANGENT 275.00 FOOT RADIUS CURVE, CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE
ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45°17'29" A DISTANCE OF 217.38 FEET;
THENCE SOUTH 16°03'31" EAST, 243.88 FEET, TO THE BEGINNING OF A TANGENT 1,025.00
FOOT RADIUS CURVE, CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID
CURVE THROUGH A CENTRAL ANGLE OF 21°15'34" A DISTANCE OF 380.32 FEET; THENCE
SOUTH 5°12'03" WEST, 407.20 FEET TO A POINT OF THE NORTHERLY LINE OF SAID
DOCUMENT; THENCE NORTH 89°16'32" WEST ALONG THE NORTHERLY LINE THEREOF 25.08
FEET, TO THE POINT OF BEGINNING.
PARCEL B:
THAT PORTION OF THE SOUTH HALF OF SECTION 25, TOWNSHIP 12 SOUTH, RANGE 4 WEST,
SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF LOT 57 OF LA COSTA MEADOWS UNIT NO. 1,
ACCORDING TO MAP THEREOF NO. 6800, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, DECEMBER 9, 1970; THENCE ALONG THE BOUNDARY OF SAID UNIT 1 AS
FOLLOWS:
SOUTH 60°37'21" EAST, 549.65 FEET TO THE NORTHERLY LINE OF ALGA ROAD AS SHOWN ON
SAID MAP NO. 6800, BEING A POINT IN THE ARC OF A 949 FOOT RADIUS CURVE, CONCAVE
NORTHERLY A RADIAL BEARS SOUTH 42°42'01" EAST TO SAID POINT, WESTERLY ALONG SAID
CURVE THROUGH AN ANGLE OF 32°40'34" A DISTANCE OF 541.22 FEET, TANGENT TO SAID
CURVE SOUTH 79°58'33" WEST, 670 FEET TO A TANGENT 949 FOOT RADIUS CURVE, CONCAVE
NORTHERLY, WESTERLY ALONG SAID CURVE THROUGH AN ANGLE OF 25°54'00" A DISTANCE OF
428.99 FEET AND SOUTH 15°52'33" WEST 50 FEET TO THE NORTHEASTERLY CORNER OF LA
COSTA VALLEY UNIT NO. 4, ACCORDING TO MAP THEREOF NO. 5781, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE ALONG THE NORTHERLY BOUNDARY
OF SAID MAP NO. 5781 AS FOLLOWS:
WESTERLY ALONG THE ARC OF A 999 FOOT RADIUS CURVE, CONCAVE NORTHERLY, THROUGH AN
ANGLE OF 23°22'00" A DISTANCE OF 407.42 FEET, TANGENT TO SAID CURVE NORTH
50°44'00" WEST, 398 FEET TO A TANGENT 1,001 FOOT RADIUS CURVE, CONCAVE SOUTHERLY,
Page 3 DESCRIPTION
Order No. 13066274
WESTERLY ALONG SAID CURVE, THROUGH AN ANGLE OF 38°30'58" A DISTANCE OF 672.91
FEET, NORTH 89°14'58" WEST, 98.00 FEET AND NORTH 0°45'02" EAST, 17.00 FEET TO THE
NORTH LINE OF SAID SOUTH ONE-HALF OF SECTION 26; THENCE ALONG SAID NORTH LINE
SOUTH 89°14'58" EAST, 161.14 FEET TO THE NORTHWEST CORNER OF SAID SOUTH HALF OF
SECTION 25; THENCE ALONG THE NORTH LINE OF SAID SOUTH HALF OF SECTION 25 SOUTH
89°12'29" EAST, 2,321.97 FEET TO THE POINT OF BEGINNING.
EXCEPTING THAT PORTION OF ALGA ROAD AS DESCRIBED IN DEED TO THE CITY OF i
CARLSBAD, RECORDED DECEMBER 9, 1983 AS FILE NO. 83-449259 OF OFFICIAL RECORDS. j
AFFECTS PARCEL NOS. 215-480-02 AND 215-480-03. !
Federal Emergency Management Agency
Washington, D.C. 20472
JUN302006
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
The Honorable Claude A. Lewis
Mayor, City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
IN REPLY REFER TO:
Case No.: 05-09-A482P
Follows Conditional
Case No.: 03-09-0039R
Community Name: City of Carlsbad, C A
Community No.: 060285
Effective Date of
This Revision:JUN 30 2006
Dear Mayor Lewis:
The Flood Insurance Rate Map for your community has been revised by this Letter of Map Revision (LOMR).
Please use the enclosed annotated map panel(s) revised by this LOMR for floodplain management purposes and for
all flood insurance policies and renewals issued in your community.
Additional documents are enclosed which provide information regarding this LOMR. Please see the List of
Enclosures below to determine which documents are included. Other attachments specific to this request may be
included as referenced in the Determination Document. If you have any questions regarding floodplain management
regulations for your community or the National Flood Insurance Program (NFIP) in general, please contact the
Consultation Coordination Officer for your community. If you have any technical questions regarding this LOMR,
please contact the Director, Federal Insurance and Mitigation Division of the Department of Homeland Security's
Federal Emergency Management Agency (FEMA) in Oakland, California, at (510) 627-7175, or the FEMA Map
Assistance Center toll free at 1-877-336-2627 (1-877-FEMA MAP). Additional information about the NFIP is
available on our website at http://www.fema.gov/nfip.
Sincerely,
For: William R. Blanton, Jr, CFM, Acting Chief
Engineering Management Section
Mitigation Division
Michael B. Godesky, Project Engineer
Engineering Management Section
Mitigation Division
List of Enclosures:
Letter of Map Revision Determination Document
Annotated Flood Insurance Rate Map
cc: Mr. Robert Wojcik
Deputy City Engineer
City of Carlsbad
Mr. Eric Mosolgo, P.E.
Manager
Water Resources Department
Hunsaker and Associates
Mr. Timothy Shanley
Real Estate Collateral Management Co.
Page 1 of 4 Issue Date: J(JR 3 Q fljflg Effective Date:3020D6 Case No.: 05-09-A482P LOMR-APP
Follows Conditional Case No.: 03-09-0039R
Federal Emergency Management Agency
Washington, B.C. 20472
LETTER OF MAP REVISION
DETERMINATION DOCUMENT
COMMUNITY AND REVISION INFORMATION PROJECT DESCRIPTION BASIS OF REQUEST
COMMUNITY
City of Carlsbad
San Diego County
California
CULVERT
DETENTION BASIN
FILL
BASE MAP CHANGES
HYDRAULIC ANALYSIS
HYDROLOGIC ANALYSIS
NEW TOPOGRAPHIC DATA
COMMUNITY NO.: 060285
IDENTIFIER La Costa Greens APPROXIMATE LATITUDE & LONGITUDE: 33.110, -117.260
SOURCE: Topozone DATUM: NAD 27
ANNOTATED MAPPING ENCLOSURES ANNOTATED STUDY ENCLOSURES
TYPE: FIRM*NO.: 06073C1032F DATE: June 19, 1997 NO REVISION TO THE FLOOD INSURANCE STUDY REPORT
* FIRM - Flood Insurance Rate Map; ** FBFM - Flood Boundary and Floodway Map; *** FHBM - Flood Hazard Boundary Map
FLOODING SOURCE(S) & REVISED REACH(ES)
Unnamed Tributary 1 to San Marcos Creek - from Alga Road to approximately 7000 feet upstream of Alga Road
Unnamed Tributary 2 to San Marcos Creek - from its confluence with Unnamed Tributary 1 to approximately 1100 feet upstream of Poinsettia Lane
SUMMARY OF REVISIONS
Flooding Source
Unnamed Tributary 1 to San Marcos Creek
Unnamed Tributary 1 to San Marcos Creek
Unnamed Tributary 2 to San Marcos Creek
Effective Flooding
Zone A
Zone A
Zone A
Revised Flooding
Zone A
Zone X(shaded)
Zone X(unshaded)
Increases Decreases
YES YES
NONE YES
NONE YES
* BFEs - Base Flood Elevations
DETERMINATION
This document provides the determination from the Department of Homeland Security's Federal Emergency Management Agency (FEMA)
regarding a request for a Letter of Map Revision (LOMR) for the area described above. Using the information submitted, we have determined that
a revision to the flood hazards depicted in the Flood Insurance Study (FIS) report and/or National Flood Insurance Program (NFIP) map is
warranted. This document revises the effective NFIP map, as indicated in the attached documentation. Please use the enclosed annotated map
panels revised by this LOMR for floodplain management purposes and for all flood insurance policies and renewals in your community.
This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have
any questions about this document, please contact the FEMA Map Assistance Center toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the
LOMR Depot, 3601 Eisenhower Avenue, Alexandria, VA 22304. Additional Information about the NFIP is available on our website at http://www.fema.gov/nfip.
Michael B. Godesky, Project Engineer
Engineering Management Section
Mitigation Division 106979 10.3.1.05092100482 102-l-C
,
L J
•Page 2 of 4 issue Date: JUN 3 0 2006 Effective Date: j\j\\ 3 Q 2006 Case No.: 05-09-A482P LOMR-APP
Federal Emergency Management Agency
Washington, B.C. 20472
LETTER OF MAP REVISION
DETERMINATION DOCUMENT (CONTINUED)
COMMUNITY INFORMATION
APPLICABLE NFIP REGULATIONS/COMMUNITY OBLIGATION
We have made this determination pursuant to Section 206 of the Flood Disaster Protection Act of 1973 (P.L. 93-234) and in accordance
with the National Flood Insurance Act of 1968, as amended (Title XIII of the Housing and Urban Development Act of 1968, P.L. 90-448),
42 U.S.C. 4001-4128, and 44 CFR Part 65. Pursuant to Section 1361 of the National Flood Insurance Act of 1968, as amended,
communities participating in the NFIP are required to adopt and enforce floodplain management regulations that meet or exceed NFIP
criteria. These criteria, including adoption of the FIS report and FIRM, and the modifications made by this LOMR, are the minimum
requirements for continued NFIP participation and do not supersede more stringent State/Commonwealth or local requirements to which
the regulations apply.
NFIP regulations Subparagraph 60.3 (b)(7) requires communities to ensure that the flood-carrying capacity within the altered or relocated
portion of any watercourse is maintained. This provision is incorporated into your community's existing floodplain management
ordinances; therefore, responsibility for maintenance of the altered or relocated watercourse, including any related appurtenances such as
bridges, culverts, and other drainage structures, rests with your community. We may request that your community submit a description
and schedule of maintenance activities necessary to ensure this requirement.
COMMUNITY REMINDERS
We based this determination on the 1 -percent-annual-chance discharges computed in the submitted hydrologic model. Future
development of projects upstream could cause increased discharges, which could cause increased flood hazards. A comprehensive
restudy of your community's flood hazards would consider the cumulative effects of development on discharges and could, therefore,
indicate that greater flood hazards exist in this area.
Your community must regulate all proposed floodplain development and ensure that permits required by Federal and/or
State/Commonwealth law have been obtained. State/Commonwealth or community officials, based on knowledge of local conditions and
in the interest of safety, may set higher standards for construction or may limit development in floodplain areas. If your
State/Commonwealth or community has adopted more restrictive or comprehensive floodplain management criteria, those criteria take
precedence over the minimum NFIP requirements.
We will not print and distribute this LOMR to primary users, such as local insurance agents or mortgage lenders; instead, the community
will serve as a repository for the new data. We encourage you to disseminate the information in this LOMR by preparing a news release
for publication in your community's newspaper that describes the revision and explains how your community will provide the data and
help interpret the NFIP maps. In that way, interested persons, such as property owners, insurance agents, and mortgage lenders, can
benefit from the information.
This revision has met our criteria for removing an area from the 1-percent-annual-chance floodplain to reflect the placement of fill.
However, we encourage you to require that the lowest adjacent grade and lowest floor (including basement) of any structure placed within
subject area be elevated to or above the Base (1-percent-annual-chance) Flood Elevation.
This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have
any questions about this document, please contact the FEMA Map Assistance Center toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the
LOMR Depot, 3601 Eisenhower Avenue, Alexandria, VA 22304. Additional Information about the NFIP is available on our website at http://www.fema.gov/nfip.
Michael B. Godesky, Project Engineer
Engineering Management Section
Mitigation Division 106979 10.3.1.05092100482 102-l-C
Page 3 of 4 Issue Date: JUfl 3 OlDOfi Effective Date: JUN 3 0 2006 Case No.: 05-09-A482P LOMR-APP
Federal Emergency Management Agency
Washington, D.C. 20472
LETTER OF MAP REVISION
DETERMINATION DOCUMENT (CONTINUED)
We have designated a Consultation Coordination Officer (CCO) to assist your community. The CCO will be the primary liaison between
your community and FEMA. For information regarding your CCO, please contact:
Ms. Sally M. Ziolkowski
Director, Federal Insurance and Mitigation Division
Federal Emergency Management Agency, Region IX
1111 Broadway Street, Suite 1200
Oakland, CA 94607-4052
(510)627-7175
STATUS OF THE COMMUNITY NFIP MAPS
We will not physically revise and republish the FIRM and FIS report for your community to reflect the modifications made by this
LOMR at this time. When changes to the previously cited FIRM panel(s) and FIS report warrant physical revision and republication in
the future, we will incorporate the modifications made by this LOMR at that time.
This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have
any questions about this document, please contact the FEMA Map Assistance Center toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the
LOMR Depot, 3601 Eisenhower Avenue, Alexandria, VA 22304. Additional Information about the NFIP is available on our website at http://www.fema.gov/nfip.
Michael B. Godesky, Project Engineer
Engineering Management Section
Mitigation Division 106979 10.3.1.05092100482 102-l-C
•Page 4 of 4 Issue Date: jyfl 302006 Effective Date: jyfl 3 Q 2006 Case No.: 05-09-A482P LOMR-APP
Federal Emergency Management Agency
Washington, B.C. 20472
LETTER OF MAP REVISION
DETERMINATION DOCUMENT (CONTINUED)
PUBLIC NOTIFICATION OF REVISION
This revision is effective as of the date of this letter. Any requests to review or alter this determination should be made within 30 days
and must be based on scientific or technical data.
This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have
any questions about this document, please contact the FEMA Map Assistance Center toll free at 1-877-336-2627 (1-877-FEMA MAP) or by letter addressed to the
LOMR Depot, 3601 Eisenhower Avenue, Alexandria, VA 22304. Additional Information about the NFIP is available on our website at http://www.fema.gov/nfip.
Michael B. Godesky, Project Engineer
Engineering Management Section
Mitigation Division 106979 10.3.1.05092100482 102-l-C
NATIONAL FLOOD INSURANCE PROGRAM
FEMA NATIONAL SERVICE PROVIDER
November 10, 2005
Mr. Timothy Shanley
Real Estate Collateral Management Co.
1903 Wright Place, Suite 108
Carlsbad, CA 92008
IN REPLY REFER TO:
Case No.: 05-09-A482P
Community: City of Carlsbai
Community No.: 060285
316-AD
Dear Mr. Shanley:
This is in regard to your request dated September 7,2005, that the Department o/Homeland Security's
Federal Emergency Management Agency (FEMA) issue a revision to the Flood/Insurance Rate Map
(FIRM) for San Diego County, California and Incorporated Areas. Pertinent jpformation about the request
is listed below.
Identifier:
Flooding Sources:
FIRM Panel(s) Affected:
La Costa Greens
Tributary Channels of San Marcos Creek
06073C1032 F
The data required to complete our review, which must be submitted within 90 days of the date of this
letter, are listed on the enclosed summary.
If we do not receive the required data within 90 days, we will suspend our processing of your request.
Any data submitted after 90 days will be treated as an original submittal and will be subject to all
submittal/payment procedures, including the flat review and processing fee for requests of this type
established by the current fee schedule.
FEMA receives a very large volume of requests and cannot maintain inactive requests for an indefinite
period of time. In addition, as a result of the aftermath of recent hurricanes, many FEMA employees have
been deployed to assist in disaster relief efforts. Therefore, we are unable to grant extensions for the
submission of required data/fee for revision requests. If a requester is informed by letter that additional
data are required to complete our review of a request, the data/fee must be submitted within 90 days of the
date of the letter. Any fees already paid will be forfeited for any request for which the requested data are
not received within 90 days.
We will continue to work expeditiously to review all submittals in accordance with National Flood
Insurance Program (NFIP) regulations, and will aim to meet the regulatory timeframe for the review of all
requests. However, requesters should be aware that delays may occur in the review process because of the
current emergency situation. We appreciate the patience and cooperation of all requesters as FEMA assists
in hurricane relief efforts.
360} Elsenhower Avenue, Alexandria, VA 22304-6425 PH:1-877-FEMA MAP FX: 703.960.9125
The Mapping on Demand Team, under contract with the Federal Emergency Management Agency, is the
National Service Provider for the National Flood Insurance Program Cr
If you have general questions about your request, FEMA policy, or the NFIP, please call the FEMA Map
Assistance Center, toll free, at 1-877-FEMA MAP (1-877-336-2627). If you have specific questions
concerning your request, please call the Revisions Coordinator for your State, Ms. Sheila Norlin, who may
be reached at (703) 317-3054.
Sincerely,
Enclosures
cc: Mr. Robert J. Wojcik
Deputy City Engineer
City of Carlsbad
Mr. Eric Mosolgo, R.C.E.
Manager
Water Resources Department
Hunsaker and Associates
Sheila M. Norlin, CFM
National LOMC Manager
Michael Baker Jr., Inc.
NATIONAL FLOOD INSURANCE PROGRAM
FEMA NATIONAL SERVICE PROVIDER
Summary of Additional Data Required to Support a
Letter of Map Revision
Case No.: 05-09-A482P Requester: Mr. Timothy Shanley
Community: City of Carlsbad, CA Community No.: 060285
The issues listed below must be addressed before we can continue the review of your request.
1. As discussed in a telephone conversation with Mr. Eric Mosolgo, Manager, Water Resources
Department, Hunsaker and Associates, on October 21, 2005, areas north of the culvert at the
intersection of Alicante Road and Poinsettia Lane will not be revised. Please incorporate these
changes into all hydraulic models and the submitted work map. Please note that the project area will
remain designated Zone A.
2. Only a post-project conditions hydraulic model was included in the submitted report entitled
"Application for FEMA Letter of Map Revision (LOMR) for La Costa Greens", prepared by Hunsaker
and Associates, dated July 2005. Please submit an existing or pre-project conditions hydraulic model.
3. Please submit as-built basin plans for the Alicante Detention Basin.
4. Please submit detailed operation and maintenance plans for all detention basins.
5. The submitted Application/Certification Form 3, entitled "Riverine Structures Form," was not
completely filled out. Please complete and submit Form 3 for all bridges, culverts, and detention
basins.
6. The submitted work map entitled "Developed Conditions Floodplain Exhibit for La Costa Greens,"
contained in the above-referenced report, does not provide essential information required to complete
our detailed review of this request. Please provide a topographic work map, certified by a registered
professional engineer, that includes all applicable items listed on the enclosed Form 2, entitled
"Riverine Hydrology & Hydraulics Form." In addition, please make sure alignments and endpoints of
all cross sections from the submitted hydraulic model are depicted on the work map, that the boundary
delineations of the post-project conditions floodplain are clearly outlined, and that the base/center line
used to determine the stationing along the tributary between cross sections is clearly shown on the
revised work map.
7. The topwidths shown in the post-project conditions hydraulic analyses at several cross sections do
not match the approximate topwidths shown on the above-referenced work map. Please provide an
explanation for these discrepancies, or make the appropriate changes.
Please send the required data directly to us at the address shown at the bottom of this page. For
identification purposes, please include the case number referenced above on all correspondence.
3607 Eisenhower Avenue, Alexandria, VA 22304-6425 PH:1-877-FEMA MAP FX: 703.960.912S
The Mapping on Demand Team, under contract with the Federal Emergency Management Agency, is the
National Service Provider for the National Flood Insurance Program
Effective September 1, 2002, the Federal Emergency Management Agency (FEMA) revised the fee
schedule for reviewing and processing requests for conditional and final modifications to published flood
information and maps. A copy of the notice summarizing the current fee schedule, which was published in
the Federal Register, is enclosed for your information. In accordance with this schedule, the fee for your
request is $4,200 and must be submitted before we can continue processing your request. The amount you
submitted, $3,800, is not sufficient. The balance, $400, must be submitted before we can continue
processing your request. Payment of this fee must be made in the form of a check or money order, payable
in U.S. funds to the National Flood Insurance Program, or a credit card payment. For identification
purposes, the case number referenced above must be included on the check or money order. We will not
perform a detailed technical review of your request until we receive this payment.
Payment must be forwarded to one of the addresses listed below.
Using U.S. Postal Service: Using overnight service:
Federal Emergency Management Agency FEMA Fee-Charge System Administrator
Fee-Charge System Administrator c/o Michael Baker Jr., Inc.
P.O. Box 22787 3601 Eisenhower Avenue
Alexandria, VA 22304 Alexandria, VA 22304
Pius
Federal Emergency Management Agency
Washington, B.C. 20472
SEP 2 5 2003
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
The Honorable Claude A. Lewis
Mayor, City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Dear Mayor Lewis:
IN REPLY REFER TO:
Case No.: 03-09-0039R
Community: City of Carlsbad, CA
Community No.: 060285
104
302883
This responds to a request that the Federal Emergency Management Agency (FEMA) comment on the
effects that a proposed project would have on the effective Flood Insurance Rate Map (FIRM) for San
Diego County, California and Incorporated Areas (the effective FIRM for your community), in accordance
with Part 65 of the National Flood Insurance Program (NFIP) regulations. In a letter dated October 1,
2002, Mr. Robert J. Wojcik, Deputy City Engineer, Development Services, Public Works - Engineering,
City of Carlsbad, requested that FEMA evaluate the effects that the existing culverts at Alga Road along
the North Tributary to San Marcos Creek (North Tributary), the proposed La Costa Greens development
along the North Tributary and the East Tributary to San Marcos Creek (East Tributary), and updated
topographic information would have on the flood hazard information shown on the effective FIRM.
The proposed La Costa Greens development will include triple 12-foot by 6-foot reinforced-concrete box
culverts along the North Tributary at Alicante Road; an 84-inch-diameter reinforced-concrete pipe culvert
along the North Tributary from just downstream to approximately 2,000 feet upstream of the intersection
of Alicante Road and Poinsettia Lane; and a berm along the North Tributary, located approximately
1,500 feet upstream of the intersection of Alicante Road and Poinsettia Lane. The Special Flood Hazard
Areas (SFHAs), the areas that would be inundated by the flood having a 1-percent chance of being equaled
or exceeded in any given year (base flood), along the revised reaches are designated Zone A, SFHAs with
no Base Flood Elevations determined.
All data required to complete our review of this request for a Conditional Letter of Map Revision
(CLOMR) were submitted with letters from Howard H. Chang, Ph.D., P.E., Howard H. Chang
Consultants, and Mr. Wojcik.
We reviewed the submitted data and the data used to prepare the effective FIRM for your community and
determined that the proposed project meets the minimum floodplain management criteria of the NFIP. We
believe that, if the proposed project is constructed as shown on the plans entitled "La Costa Greens,
Phase 1" and "La Costa Greens, Alicante Road (North)," both prepared by O'Day Consultants and dated
April 2001, and as described in the reports entitled "Application for FEMA Conditional Letter of Map
Revision (CLOMR) For Tributary Channels of San Marcos Creek With Proposed La Costa Greens
Development," prepared by Howard H. Chang Consultants, dated August 2002; "La Costa Greens,
Carlsbad, California," prepared by Geocon Incorporated, dated January 20, 2003; and "Operation &
Maintenance Plan for Proposed Levee Detailed in La Costa Greens CLOMR Application," prepared by
Hunsaker & Associates, dated June 16, 2003, and the data listed below are received, a revision to the
FIRM would be warranted.
Our comparison of the proposed conditions model to the information shown on the effective FIRM
revealed that, as a result of existing conditions and the proposed project, the width of the SFHA along the
North Tributary will increase in some areas and decrease in other areas compared to the effective SFHA
width from just upstream of Alga Road to approximately 1,100 feet upstream of West Carillo Way. hi
addition, an SFHA will be added along the North Tributary from approximately 1,600 feet upstream to
approximately 3,100 feet upstream of West Carillo Way. The maximum increase in SFHA width,
approximately 300 feet, will occur approximately 1,700 feet upstream of West Carillo Way. The
maximum decrease in SFHA width, approximately 1,200 feet, will occur approximately 100 feet upstream
of West Carillo Way. The width of the SFHA along the East Tributary will decrease compared to the
effective SFHA width from its confluence with the North Tributary to approximately 2,600 feet upstream.
The maximum decrease in SFHA width, approximately 700 feet, will occur approximately 1,000 feet
upstream of its confluence with the North Tributary. All increases in SFHA width are within the La Costa
Greens development.
Upon completion of the project, your community may submit the data listed below and request that we
make a final determination on revising the effective FIRM and Flood Insurance Study (FIS) report.
• Detailed application and certification forms, which were used hi processing this request, must be
used for requesting final revisions to the maps. Therefore, when the map revision request for the
area covered by this letter is submitted, Form 1, entitled "Overview & Concurrence Form," must
be included. (A copy of this form is enclosed.)
• The detailed application and certification forms listed below may be required if as-built conditions
differ from the preliminary plans. If required, please submit new forms (copies of which are
enclosed) or annotated copies of the previously submitted forms showing the revised information.
Form 2, entitled "Riverine Hydrology & Hydraulics Form"
Form 3, entitled "Riverine Structures Form"
Hydraulic analyses, for as-built conditions, of the base flood, together with a topographic work
map showing the revised floodplain boundaries, must be submitted with Form 2.
• Effective September 1, 2002, FEMA revised the fee schedule for reviewing and processing
requests for conditional and final modifications to published flood information and maps. In
accordance with this schedule, the current fee for this map revision request is $3,800 and must be
received before we can begin processing the request. Please note, however, that the fee schedule is
subject to change, and requesters are required to submit the fee in effect at the time of the
submittal. Payment of this fee shall be made in the form of a check or money order, made payable
in U.S. funds to the National Flood Insurance Program, or by credit card. The payment must be
forwarded to the following address:
Federal Emergency Management Agency
Fee-Charge System Administrator
P.O. Box 3173
Merrifield, VA 22116-3173
• As-built plans, certified by a registered professional engineer, of all proposed project elements
• Community acknowledgment of the map revision request
• Please submit evidence that the maintenance and operation plan for the berm, which was
submitted with this CLOMR request, has been adopted by the community. If the plan has
changed, please submit a new plan, which may be in the form of a written statement from the
community Chief Executive Officer, an ordinance, or other legislation, that describes the nature of
the maintenance activities, the frequency with which they will be performed, and the title of the
local community official who will be responsible for ensuring that the maintenance activities are
accomplished.
• The submitted plans for the existing culverts entitled "Alga Road," prepared by Rick Engineering
Company, dated September 9, 1983, are not certified as representing as-built conditions. Please
submit as-built copies of these plans or a letter stating that the plans represent as-built conditions.
• The base floodplain topwidths shown in the proposed conditions HEC-RAS hydraulic analysis do
not match the approximate base floodplain topwidths shown at various cross sections on the
topographic work map entitled "CLOMR Exhibit for La Costa Greens," prepared by O'Day
Consultants, dated August 21, 2002. Please resolve these discrepancies.
After receiving appropriate documentation to show that the project has been completed, FEMA will initiate
a revision to the FIRM and FIS Report.
The basis of this CLOMR is, in whole or in part, a culvert project. NFIP regulations, as cited in
Paragraph 60.3(b)(7), require that communities assure that the flood-carrying capacity within the altered or
relocated portion of any watercourse is maintained. This provision is incorporated into your community's
existing floodplain management regulations. Consequently, the ultimate responsibility for maintenance of
the culverts rests with your community.
This CLOMR is based on minimum floodplain management criteria established under the NFIP. Your
community is responsible for approving all floodplain development and for ensuring all necessary permits
required by Federal or State law have been received. State, county, and community officials, based on
knowledge of local conditions and in the interest of safety, may set higher standards for construction in the
SFHA. If the State, county, or community has adopted more restrictive or comprehensive floodplain
management criteria, these criteria take precedence over the minimum NFIP criteria.
If you have any questions regarding floodplain management regulations for your community or the NFIP in
general, please contact the Consultation Coordination Officer (CCO) for your community. Information on
the CCO for your community may be obtained by calling the Chief, National Flood Insurance Program
Branch, Federal Insurance and Mitigation Division of FEMA in Oakland, California, at (510) 627-7184. If
you have any questions regarding this CLOMR, please call our Map Assistance Center, toll free, at
1-877-FEMAMAP (1-877-336-2627).
Sincerely,
Max H. Yuan, P.E., Project Engineer
Hazard Study Branch
Emergency Preparedness
and Response Directorate
Enclosures
cc: Mr. Clyde Wickham
City Engineer
City of Carlsbad
Mr. Robert J. Wojcik
Deputy City Engineer
Development Services
Public Works - Engineering
City of Carlsbad
Mr. Donald See
Associate Civil Engineer
County of San Diego
Howard H. Chang, Ph.D., P.E.
Howard H. Chang Consultants
For: Doug Bellomo, P.E., Acting Chief
Hazard Study Branch
Emergency Preparedness
and Response Directorate
o
FEDERAL EMERGENCY MANAGEMENT AGENCY
OVERVIEW & CONCURRENCE FORM
O.M.B. No. 3067-0148
Expire* September 30,2005
PAPERWORK BURDEN DISCLOSURE NOTICE
Public reporting burden for this form is estimated to average 1 hour per response. The burden estimate includes the time for reviewing instructions, searching
existing data sources, gathering and maintaining the needed data, and completing, reviewing, and submitting the form. You are not required to respond to this
collection of information unless a valid OMB control number appears in the upper right comer of this form. Send comments regarding the accuracy of the burden
estimate and any suggestions for reducing this burden to: Information Collections Management, Federal Emergency Management Agency, 500 C Street, SW.
Washington, DC 20472, Paperwork Reduction Project (3067-0148). Submission of the form is required to obtain or retain benefits under the National Flood
Insurance Program. Please do not send your completed survey to the above address.
A. REQUESTED RESPONSE FROM FEMA
This request is for a (check one)
QCLOMR: A letter from FEMA commenting on whether a proposed project, if built as proposed, would justify a map
revision, or proposed hydrology changes (See 44 CFR Ch. 1, Parts 60,65 & 72).
QLOMR: A letter from FEMA officially revising the current NFIP map to show the changes to floodplains, regulatory floodway, or flood
elevations. (See Parts 60 & 65 of the NFIP Regulations).
B. OVERVIEW
1. The NFIP map panel(s) affected for all impacted communities is (are):
Community No.Community Name State Map No.Panel No.Effective Date
Etc 480301
480287 Hams County _
TX
TX
480301
48201C
0005D
0220G
02/08/83
09/28/90
2. Flooding Source:
3. Project Name/Identifier:
4. FEMA zone designations affected:(choices A, AH, AO, A1-A30, A99, AE, AR, V, V1-V30, VE, B ,C, D, X)
5. Basis for Request and Type of Revision:
a. The basis for this revision request is (check all that apply)
Q Physical Change Qj Improved Methodology/Data
Q Regulatory Floodway Revision Ql Other (Attach Description)
Note: A photograph and narrative description of the area of concern is not required, but is very helpful during
review.
b. The area of revision encompasses the following types of flooding and structures (check all that apply).
Types of Flooding:
Structures:
iverine
Q Alluvial fan
[^Channelization
Q| Coastal
Ql Lakes
Q Levee/Floodwall
QFNI
[^Shallow Flooding (e.g., Zones AO and AH)
Q Other (Attach Description)
Q Bridge/Culvert
Q Other, Attach Description
FEMA Form 81-tl9, SEPT 02 Overview & Concurrence Form MT-2Form1 Page 1 of 2
C. REVIEW FEE
Has the review fee for the appropriate request category been included?
Please see FEMA website at http://vvww.fema.gov/mit/tsd/frm_fees.htm for 1
l~jYfis Fee amount' $
QlNo, Attach Explanation
:ee Amounts and Exemptions.
D. SIGNATURE
All documents submitted in support of this request are correct to the best of my knowledge. 1 understand that any false statement may 1
be punishable by fine or imprisonment under Title 18 of the United States Code, Section 1001. 1
lame:
Mailing Address:
Signature of Requester (required):
Company:
Daytime Telephone No.: Fax No.:
E-Mail Address:
Date:
As the community official responsible for floodplain management, 1 hereby acknowledge that we have received and reviewed this Letter of
(/lap Revision (LOMR) or conditional LOMR request. Based upon the community's review, we find the completed or proposed project
beets or is designed to meet all of the the community floodplain management requirements, including the requirement that no fill be
)laced in the regulatory fjoodway, and that all necessary Federal. State, and local permits have been, or in the case of a conditional
.OMR, will be obtained. In addition, we have determined that the land and any existing or proposed structures to be removed from the
SFHA are or will be reasonably sale from flooding as defined in 44CFR 65.2(c), and that we have available upon request by FEMA. alt
analyses and documentation used to make this determination.
Community Officiate Name and Title:Telephone No.:
Community Name: Community Official's Signature: (required) Date:
CERTIFICATION BY REGISTERED PROFESSIONAL ENGINEER AND/OR LAND SURVEYOR
This certification is to be signed and sealed by a licensed land surveyor, registered professional engineer, or architect authorized by law to certify elevation
nformation. All documents submitted in support of this request are correct to the best of my knowledge. 1 understand that any false statement may be punishable
by fine or imprisonment under Title 1 8 of the United States Code, Section 1 001 .
Certffier's Name: License No.: Expiration Date:
Company Name: Telephone No.: Fax No.:
Signature:
Ensure the forms that are appropriate to your revision request are included
Form Name and (Number) Required if...
£J Riverine Hydrology & Hydraulics Form (Form 2) New or revised discharj
Q Riverine Structures Form (Form 3) Channel is modified, at
addition/revision of leva
Q| Coastal Analysis Form (Form 4) New or revised coastal
Q Coastal Structures Form (Form 5) Addition/revision of coa
QAIIuvial Fan Flooding Form (Form 6) Flood control measures
Date:
jes or water-surface elevations
dftion/revision of bridge/culverts,
s/floodwall, addition/revision of dam
elevations Seal (optional)
stal structure
on alluvial fans
FEMA Form 81-89, SEPT 02 Overview & Concurrence Form MT-2Form1 Paae2of2
rawcYFEDERAL EMERGENCY MANAGEMENT AGENCY
RIVERINE HYDROLOGY & HYDRAULICS FORM I O.M.B. No. 3067-«l4t
Expire* September 30, 2005
PAPERWORK BURDEN DISCLOSURE NOTICE
Public reporting burden for this form is estimated to average 3 hours per response. The burden estimate includes the time for reviewing
instructions, searching existing data sources, gathering and maintaining the needed data, and completing, reviewing, and submitting the
form. You are not required to respond to this collection of information unless a valid OMB control number appears in the upper right
comer of this form. Send comments regarding the accuracy of the burden estimate and any suggestions for reducing this burden to:
Information Collections Management, Federal Emergency Management Agency, 500 C Street, SW, Washington, DC 20472, Paperwork
Reduction Project (3067-0148). Submission of the form is required to obtain or retain benefits under the National Flood Insurance
Program. Please do not send your completed survey to the above address. ^_ :
Flooding Source:
Note: Flout one tarn for each flooding source studied.
A. HYDROLOGY
1. Reason far New Hydrotogfc Analysis (check aH that apply)
4.
No existing analysis
Proposed Conditions (CLOMR)
Qj Not revised (skip to section 2)
r~L AMwnattve methodology
Comparision of Representative 1%-Annual-Chance Discharges
Location Drainage Area (Sq. Mi.)
Q Improved data
r-j Changed physical condition of watershed
FIS (cfs)Revised (cfs)
i—• f - t'J. *;*rwy- ' v l-Q StattsttoaJ AraryriBOfGage Record*
Q Regional Regression Equations
Please enclose al relevant models in olgtat format, map)
PredpltatioiWRunoff Model [TR-26, HEC-1, HEC-HMS. ete.J
Other (please attach description)
nputattons (bidudJna computation of perametere).arK«docun»ent8tion to support the new
analysis. The document. •Numerical Modeto Accepted by FEMA for NFIPUsage" lists the modete accepted by FEMA. TNs document can be found at:
http^/www.fema.o^/rniMsd/en_rn(xfl.htm.
Review/Approval of Analysis
If your community reo^iires a regional, state, or (eo^ral ag
Impacts of Seolrnent Transport on Hydrology
Was sedment transport considered?
for why sedhnent transport was not cor
QYes QNo
nSdered.
If Yes, then f» out Section F (Sedhnent Transport) of Form 3. If rto, then attach your explanation
B. HYDRAULICS
1.
Downstream Limit _
Upstream Limit _
2. Hvdrauic Method Used
Hydraufe Analysis
Description Cross Section Water-Surface Elevations (ft)
Effective Proposed/Revised
[HEC-2, HEC-RAS. Other (Attach description)]
FEMA Form 81-89A, SEPT 02 Riverine Hydrology ft Hydraulic* Form MT-2Form2 Page 1 of 2
o
B. HYDRAULICS (CONTINUED)
3. Pre -Submittal Review of Hydraulic Models
FEMA has developed two review programs, CHECK-2 and CHECK-RAS to aid in the review of HEC-2 and HEC-RAS hydraulic models,
respectively. These review programs verify that the hydraulic estimates and assumptions in the model data are in accordance with NFIP
requirements, and that the data are comparable with the assumptions and limitations of HEC-2/HEC-RAS. CHECK-2 and CHECK-RAS
identify areas of potential error or concern. These tools do not replace engineering judgment. CHECK-2 and CHECK-RAS can be
downloaded from http://www.ferna.gov/mtt/tsd/frm soft. htm. We recommend that you review your HEC-2 and HEC-RAS models with
CHECK-2 and CHECK-RAS. If you disagree with a~message, please attach an explanation of why the message is not valid in this case.
Review of your submittal and resolution of valid modeling discrepancies will result in reduced review time.
HEC-2/HEC-RAS models reviewed with CHECK-2/CHECK-RAS? QYes QNo
. Models Submitted
Duplicate Effective Model* Natural File Name Floodway File Name . . •
Corrected Effective Model* Natural File Name Floodway File Name
Existing or Pre-Project Conditions Model Natural File Name Floodway File Name
Revised or Post-Project Conditions Model Natural File Name Floodwav File Name
Other-(attach description) Natural File Name Floodway File Name
•Not required for revisions to approximate 1%-annual-chance floodplains (Zone A) - for details, refer to the corresponding section of the
instructions.
The document "Numerical Models Accepted by FEMA for NFIP Usage" list the models accepted by FEMA. This document can be found
at http:/Avww.fema.gov/mrtftsd/en_modl.htm.j
C. MAPPMO REQUIREMENTS
A certified topogH^hte ^ showing the following information (where applicable): the boundaries of the effective,
existing, and fnfa&Aj&i^^ floodplain (for approximate Zone A revisions) or the bburtdaries of the 1%- and
0.2%-«uiurt-cluinc*{Id^^ ftoodway (for detailed Zone AE, AO. and AH revisions); location antollgnment of all
cross sections with stationing control indicated; stream, road, and other alignments (e.g., dams, levees, etc.); current community
easements and boundaries; boundaries of the requester's property, certification of a registered professional engineer registered in the
subject State; location and description of reference marks; and the referenced vertical datum (NGVD, NAVD, eta).
Note that the boundaries of the existing or proposed conditions floodplains and regulatory floodway to be shown on the revised FIRM
and/or FBFM must tie-in with the effective floodplain and regulatory floodway boundaries. Please attach a copy of the effective FIRM
and/or FBFM, annotated to show the boundaries of the revised 1%- and 0.2%-annual-chance floodplains and regulatory floodway that
tie-in with the boundaries of the effective 1%- and 0.2% -annual-chance floodplain and regulatory floodway at the upstream and
downstream limits of the area of revision.
0. COMMON REGULATORY REQUIREMENTS
1. For CLOMR requests, do Base Flood Elevations (BFEs) Increase? tjYes Qtte
For CLOMR requests, if either of the following is true, please submit evidence of compliance with Section 65.12 of the NFIP
regulations:
• The proposed project encroaches upon a regulatory floodway and would result in increases above 0.00 ftxrt.
• The proposed project encroaches upon a SFHA with BFEs established and would result in increases above 1.00 foot
2,Does,*h* request involve the placement or proposed placement of fill? QYes QiNo
If Yes, the community must acknowledge that the area to be removed from the special flood hazard area, to include any structures or
proposed structures, meets (will meet) all of the standards of the the local floodplain ordinances, and is (will be) reasonably safe from
flooding in accordance with NFIP regulation 44 CFR 65.2(c). Please see the MT-2 Instructions for more information.
3. For LOMR requests, is the regulatory floodway being revised? QYes QlNo
If Yes, attach evidence of regulatory floodway revision notification. As per Paragraph 65.7(b)(1) of the NFIP regulations, notification is
required for requests involving revisions to the regulatory floodway. (Not required for revisions to approximate 1%-annual-chance
floodplains [studied Zone A designation] unless a regulatory floodway is being added. Elements and examples of regulatory floodway
revision notification can be found in the MT-2 Form 2 Instructions.)
4. For LOMR requests, does this request require property owner notification and acceptance of BFE increases? QYes QjNo
If Yes, please attach proof of property owner notification and acceptance (if available). Elements of and examples of property owner
notification ipan be found in the MT-2 Form 2 Instructions.
FEMA Form 81-89A; SEPT 02 Riverine Hydrology & Hydraulics Form MT-2 Form 2 Page 2 of 2
(FEDERAL EMERGENCY MANAGEMENT AGENCY I
RIVERINE STRUCTURES FORM I
O.M.B. No. 3067-0148
Expires September 30, 2005
PAPERWORK BURDEN DISCLOSURE NOTICE
Public reporting burden for this form is estimated to average 7 hours per response. The burden estimate includes the time for reviewing
instructions, searching existing data sources, gathering and maintaining the needed data, and completing, reviewing, and submitting the
form. You are not required to respond to this collection of information unless a valid OMB control number appears in the upper right
corner of this form. Send comments regarding the accuracy of the burden estimate and any suggestions for reducing this burden to:
Information Collections Management, Federal Emergency Management Agency, 500 C Street, SW, Washington, DC 20472, Paperwork
Reduction Project (3067-0148). Submission of the form is required to obtain or retain benefits under the National Flood Insurance
Program. Please do not send your completed survey to the above address.
(Flooding Source:
Note: Fill out one form for each flooding source studied.
A. GENERAL
Complete the appropriate section(s) for each Structure listed below:
Channelization complete Section B
Bridge/Culvert complete Section C
Dam complete Section D
Levee/Floodwall complete Section E
Sediment Transport complete Section F (if required)
Description Of Structure
1 . Name of Structure:
Type (check one): [^Channelization Q Bridge/Culvert
Location of Structure:
Downstream Limit/Cross Section:
Upstream Limit/Cross Section:
2. Name of Structure:
Type (check one): Q|Channelization Q Bridge/Culvert
Location of Structure:
Downstream Limit/Cross Section:
Upstream Limit/Cross Sentinn'
3. Name of Structure:
Type (check one): [j Channelization Q Bridge/Culvert
Location of Structure'
Downstream Limit/Cross Section:
1 Ipstrpqm Limit/Cross Rentinn-
Note: For more structures, attach additional pages as needed.
Q Levee/Floodwall QDam
Q Levee/Floodwall QDam
Q Levee/Floodwall [^JDam
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 1 of 10
O B. CHANNELIZATION
Flooding Source:
Name of Structure:
1. Accessory Structures
The channelization includes (check one):
Q Levees (Attach Levee/Floodwall System Analysis Form - Section E) [^Drop structures
QSuperelevated sections [^Transitions in cross sectional geometry
Q Debris basin/detention basin Q Energy dissipator
Q Other (Describe):
2. Drawing Checklist
Attach the plans of the channelization certified by a registered professional engineer, as described in the instructions.
3. Hydraulic Considerations
The channel was designed to carry _ (cfs) and/or the _ -year flood.
The design elevation in the channel is based on (check one):
Qj Subcritical flow Q Critical flow Q| Supercritical flow Q Energy grade line
If there is the potential for a hydraulic jump at the following locations, check all that apply and attach an explanation of how the
hydraulic jump is controlled without affecting the stability of the channel.
Qj Inlet to channel Q Outlet of channel QAt Drop Structures QAt Transitions
Q Other locations (specify): _
4. Sediment Transport Considerations
Was sediment transport considered? Q Yes QiNo If Yes, then fill out Section F (Sediment Transport).
If No, then attach your explanation for why sediment transport was not considered.
C. BRIDGE/CULVERT
Flooding Source:
Name of structure:.
1. This revision reflects (check one):
QNew bridge/culvert not modeled in the FIS
Q Modified bridge/culvert previously modeled in the FIS
ysis of bridge/culvert previously modeled in the FIS
2. Hydraulic model used to analyze the structure (e.g., HEC-2 with special bridge routine, WSPRO, HY8): _
If different than hydraulic analysis for the flooding source, justify why the hydraulic analysis used for the flooding source could not
analyze the structures. Attach justification.
3. Attach plans of the structures certified by a registered professional engineer. The plan detail and information should include the
following (check the information that has been provided):
^Dimensions (height, width, span, radius, length) tlErosion Protection
Q Shape (culverts only) QLow Chord Elevations - Upstream and Downstream
Q Material QjTop of Road Elevations - Upstream and Downstream
Q Beveling or Rounding Q Structure Invert Elevations - Upstream and Downstream
QWing Wall Angle QjStream Invert Elevations - Upstream and Downstream
QSkew Angle Q Cross-Section Locations
Q Distances Between Cross Sections
4. Sediment Transport Considerations
Was sediment transport considered? QYes Q No If Yes, then fill out Section F (Sediment Transport).
If No, then attach your explanation for why transport was not considered.
FEMAForm81-89B, SEPT 02 Riverine Structures Form MT-2Form3 Page 2 of 10
n HAM " \k _ J
Flooding Source:
Name of Structure:
1. This request is for (check one): Qj Existing dam QNew dam Q Modification of existing dam
2. The dam was designed by (check one): Q Federal agency Q State agency Q Local government agency
Q Private organization Name of the agency or organization:
3. Does the project involve revised hydrology? QYes
If Yes, complete the Riverine Hydrology & Hydraulics Form (Form 2)
4. Does the submittal include debris/sediment yield analysis? QYes
If Yes.then fill out Section F (Sediment Transport).
If No, then attach your explanation for why debris/sediment analysis was not considered.
5. Does the Base Flood Elevation behind the dam or downstream of the dam change?
Q Yes Q No If Yes, complete the Riverine Hydrology & Hydraulics Form (Form 2) and complete the table below.
Stillwater Elevation Behind the Dam
FREQUENCY (% annual chance) FIS REVISED
10-year (10%)
50-year (2%)
100-year (1%)
500-year (0.2%)
Normal Pool Elevation
6. Please attach a copy of the formal Operation and Maintenance Plan.
FEMA Form 81-898, SEPT 02 Riverine Structures Form MT-2Form3 Page 3 of 10
E. LEVEE/FLOODWALL
1. System Elements
a. This Levee/Floodwall analysis is based on (check one):
Q upgrading of an existing levee/floodwall system
Qa newly constructed levee/floodwall system
[preanalysis of an existing levee/floodwall system
b. Levee elements and locations are (check one):
Qearthen embankment, dike, berm, etc. Station to
[^structural floodwall Station to
QOther (describe): Station to
c. Structural Type (check one):
[^monolithic cast-in place reinforced concrete
Q reinforced concrete masonry block
Q sheet piling
Qother (describe):
d. Has this levee/floodwall system been certified by a Federal agency to provide protection from the base flood?
QYes QNo
If Yes, by which agency? ^_____^__
e. Attach certified drawings containing the following information (indicate drawing sheet numbers):
1. Plan of the levee embankment and floodwall structures Sheet Numbers: —
2. A profile of the levee/floodwall system showing the
Base Flood Elevation (BFE), levee and/or wall crest and
foundation, and closure locations for the total levee system. Sheet Numbers:
3. A profile of the BFE, closure opening outlet and inlet
invert elevations, type and size of opening, and kind of closure Sheet Numbers:
4. A layout detail for the embankment protection measures. Sheet Numbers:
5. Location, layout, and size and shape of the levee
embankment features, foundation treatment, floodwall
structure, closure structures, and pump stations. Sheet Numbers:
2. Freeboard
a. The minimum freeboard provided the BFE is:
Riverine
3.0 feet or more at the downstream end and throughout QYes
3.5 feet or more at the upstream end QYes
4.0 feet within 100 feet upstream of all structures and/or constrictions UlYes
Coastal
1.0 foot above the height of the one percent wave associated with the 1%-annual-chance
stillwater surge elevation or maximum wave runup (whichever is greater) QjYes QNo
2.0 feet above the 1%-annual-chance stillwater surge elevation QYes
FEMAForm81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 4 of 10
W LEVEE/FLOODWALL (CONTINUED)
2. Freeboard (continued)
Please note, occasionally exceptions are made to the minimum freeboard requirement. If an exception is requested,
attach documentation addressing Paragraph 65.10(b)(1)(ii) of the NFIP regulations.
If No is answered to any of the above, please attach an explanation,
b. Is there an indication from historical records that ice-jamming can affect the BFE? !j Yes Q No
If Yes, provide ice-jam analysis profile and evidence that the minimum freeboard discussed above still exists.
3. Closures
a. Opening through the levee system (check one): Q exists QJ does not exist
If opening exists, list all closures:
Channel Station Left or Right Bank Opening Type Higl»est Elevation for Type of Closure Device
Opening Invert
(Extend table on an added sheet as needed and reference)
Note: Geotechnical and geologic data
In addition to the required detailed analysis reports, data obtained during field and laboratory investigations and used in the
design analysis for the following system features should be submitted in a tabulated summary form. (Reference U.S. Army Corps of Engineers
[USAGE] EM-1 11 0-2-1 906 Form 2086.)
4. Embankment Protection
a. The maximum levee slope landside
b. The maximum levee slope floodsid
c. The range of velocities along the le
d. Embankment material is protected
e. Riprap Design Parameters (check
Attach references
Reach
Sta to
Sta to
Sta to
Sta to
Sta to
Sta to
i<?'
3 is:
vee during the basp fl"od is' (min ) t« (IT
by (describe what kind):
one): Q Velocity [^Tractive stress
.-». ^ «*« 25;
ax.)
Stone Riprap Depth of
Dioo Dso Thickness Toedown
(Extend table on an added sheet as needed and reference each entry)
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2Form3 Page 5 of 10
E. LEVEE/FLOODWALL (CONTINUEUrf
4. Embankment Protection (continued)
f. Is a bedding/filter analysis and design attached? t^Yes
g. Describe the analysis used for other kinds of protection used (include copies of the design analysis):
Attach engineering analysis to support construction plans.
5. Embankment and Foundation Stability
a. Identify locations and describe the basis for selection of critical location for analysis:
[^Overall height: Sta., height ft.
QLimiting foundation soil strength:
Sta. , depth to
strength 0 =
slope: SS =
degrees, c =
(h)to
psf
(v)
(Repeat as needed on an added sheet for additional locations)
b. Specify the embankment stability analysis methodology used (e.g., circular arc, sliding block, infinite slope, etc.):
c. Summary of stability analysis results:
Case Loading Conditions Critical Safety Factor Critical (Win.
End of construction 1.3
Sudden drawdown 1.0
III Critical flood stage 1.4
IV Steady seepage at flood stage 1.4
VI Earthquake (Case I)1.0
(Reference: USAGE EM-1110-2-1913 Table 6-1)
d. Was a seepage analysis for the embankment performed?
If Yes, describe methodology used:
tjYes QiNo
e. Was a seepage analysis for the foundation performed?
f. Were uplift pressures at the embankment landside toe checked?
g. Were seepage exit gradients checked for piping potential?
h. The duration of the base flood hydrograph against the embankment is
Attach engineering analysis to support construction plans.
UlYes Q|No
QYes QNo
QjYes
hours.
FEMA Form 81-89B, SEPT 02 Riverine Sturctures Form MT-2Form3 Page 6 of 10
: LEVEE/FLOODWALL (CONTINUED)
6. Floodwall and Foundation Stability
a. Describe analys
Q UBC(1988)
b. Stability analysi
Qj Overturning
c. Loading include
Q Lateral eart
ti Surchage-S
Q Wind @ Pw
Q| Seepage (L
Q 1%-annual-
Q| 1%-annual-
d. Summary of Sta
Itemize for each
Loading Condition
Dead & Wind
Dead & Soil
Dead, Soil, Flood, &
Impact
Dead, Soil, & Seismic
is submittal based on Code (check one):
or rj Othfr (specify)'
s submitted provides for:
Q Sliding If not ^*piqin'
d in the analyses were:
h @ PA = psf; PP = psf
>lope @ ^i surface psf
= psf
plift)- FJ Earthquake @ P«q = %g
chance significant wave height ft.
chance significant wave period: sec.
bility Analysis Results: Factors of Safety,
range in site lay out dimension and loading condition limitation for each respective reach.
Criteria (Min) Sta To Sta To
Overturn Sliding Overturn Sliding Overturn Sliding
1.5 1.5
1.5 1.5
1.5 1.5
1.3 1.3
(Ref: FEMA 114 Sept 1986; USAGE EM 1110-2-2502)
(Note: Extend table on an added sheet as needed and reference)
e. Foundation bearing strength for each soil type:
Bearing Pressure Sustained Load (psf) Short Term Load (psf)
Computed design maximum
Maximum allowable
f. Foundation scour protection rj is, Q is not provided. If provided, attach explanation and supporting documentation.
Attach engineering analysis to support construction plans.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 7 of 10
E. LEVEE/FLOODWALL (CONTINUEEB)
7. Settlement
a. Has anticipated potential settlement been determined and incorporated into the specific construction elevations to maintain the
established freeboard margin? Q Yes Q No
b. The computed range of settlement is ft. to ft.
c. Settlement of the levee crest is determined to be primarily from:
Q Foundation consolidation
Ql Embankment compression
Ol Other (Describe):
d. Differential settlement of floodwalls Qhas Qjhas not been accommodated in the structural design and construction.
Attach engineering analysis to support construction plans.
8. Interior Drainage
a. Specify size of each interior watershed:
Draining to pressure conduit: acres
Draining to ponding area: acres
b. Relationships Established
Ponding elevation vs. storage QYes Q No
Ponding elevation vs. gravity flow QYes Q No
Differential head vs. gravity flow QYes Q No
c. The river flow duration curve is enclosed: QYes Q No
d. Specify the discharge capacity of the head pressure conduit: cfs
e. Which flooding conditions were analyzed?
• Gravity flow (Interior Watershed) QYes Q No
• Common storm (River Watershed) QYes Q| No
• Historical ponding probability QYes Q No
• Coastal wave overtopping t^Yes Q No
If No for any of the above, attach explanation.
f. Interior drainage has been analyzed based on joint probability of interior and exterior flooding and the capacities of pumping and
outlet facilities to provide the established level of flood protection. Q Yes QNo
If No, attach explanation.
g. The rate of seepage through the levee system for the base flood is cfs.
h. The length of levee system used to drive this seepage rate in item g: ft.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 8 of 10
E. LEVEE/FLOODWALL (CONTINUED)
Interior Drainage (continued)
i. Will pumping plants be used for interior drainage?
If Yes, include the number of pumping plants:
For each pumping plant, list:
QjYes
Plant #1 Plant #2
The number of pumps
The ponding storage capacity
The maximum pumping rate
The maximum pumping head
The pumping starting elevation
The pumping stopping elevation
Is the discharge facility protected?
Is there a flood warning plan?
How much time is available between
warning and flooding?
Will the operation be automatic? QYes
If the pumps are electronic, are there backup power sources? QjYes
(Reference: USAGE EM-1110-2-3101, 3102, 3103, 3104, and 3105)
Include a copy of supporting documentation of data and analysis. Provide a map showing the flooded area and maximum ponding
elevations for all interior watersheds that result in flooding.
9. Other Design Criteria
a. The following items have been addressed as stated:
Liquefaction Qis Qis not a problem
Hydrocompaction Q is Q is not a problem
Heave differential movement due to soils of high shrink/swell QJ is QJ is not a problem
b. For each of these problems, state the basic facts and corrective action taken:
Attach supporting documentation.
c. If the levee/floodwall is new or enlarged, will the structure adversely impact flood levels and/or flow velocities
floodside of the structure? QYes QNo
Attach supporting documentation.
d. Sediment Transport Considerations:
Was sediment transport considered? QYes QjNo If Yes, then fill out Section F (Sediment Transport).
If No, then attach your explanation for why sediment transport was not considered.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form . MT-2Form3 Page 9 of 10
E. LEVEE/FLOODWALL (CONTINUE
^
ED)
10. Operational Plan and Criteria
a. Are the planned/installed works in full compliance with Part 65.10 of the NFIP regulations? QYes
b. Does the operation plan incorporate all the provisions for closure devices as required in Paragraph 65.10(c)(1) of the NFIP
regulations? Q Yes Q No
c. Does the operation plan incorporate all the provisions for interior drainage as required in Paragraph 65.10{c)(2) of the NFIP
regulations? Q Yes Q No
If the answer is No to any of the above, please attach supporting documentation.
11. Maintenance Plan
a. Are the planned/installed works in full compliance with Part 65.10 of the NFIP regulations? QlYes QNo
If No, please attach supporting documentation.
12. Operations and Maintenance Plan
Please attach a copy of the formal Operations and Maintenance Plan for the levee/floodwall.
F. SEDIMENT TRANSPORT
Mooding Source:
Name of Structure:
If there is any indication from historical records that sediment transport (including scour and deposition) can affect the Base Flood
Elevation (BFE); and/or based on the stream morphology, vegetative cover, development of the watershed and bank conditions, there is a
potential for debris and sediment transport (including scour and deposition) to affect the BFEs, then provide the following information
along with the supporting documentation:
Sediment load associated with the base flood discharge: Volume acre-feet
Debris load associated with the base flood discharge: Volume acre-feet
Sediment transport rate (percent concentration by volume)
Method used to estimate sediment transport:
Most sediment transport formulas are intended for a range of hydraulic conditions and sediment sizes; attach a .detailed explanation for
using the selected method.
Method used to estimate scour and/or deposition:
Method used to revise hydraulic or hydrologic analysis (model) to account for sediment transport:
Please note that bulked flows are used to evaluate the performance of a structure during the base flood; however, FEMA does not map
BFEs based on bulked flows.
If a sediment analysis has not been performed, an explanation as to why sediment transport (including scour and deposition) will not
affect the BFEs or structures must be provided.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 10 of 10
Federal Emergency Management Agency
Washington, D.C. 20472
FEE SCHEDULE FOR PROCESSING REQUESTS FOR MAP CHANGES
This notice contains the revised fee schedule for processing certain types of requests for changes to
National Flood Insurance Program (NFIP) maps. The change in the fee schedule will allow FEMA
to further reduce the expenses to the NFIP by more fully recovering the costs associated with
processing conditional and final map change requests. The revised fee schedule for map changes
is effective for all requests dated September 1,2002, or later and supersedes the current fee
schedule, which was established on June 1,2000.
To develop the revised fee schedule for conditional and final map change requests, FEMA
evaluated the actual costs of reviewing and processing requests for Conditional Letters of Map
Amendment (CLOMAs), Conditional Letters of Map Revision - based on Fill (CLOMR-Fs),
Conditional Letters of Map Revision (CLOMRs), Letters of Map Revision - based on Fill
(LOMR-Fs), Letters of Map Revision (LOMRs), and Physical Map Revisions (PMRs).
Based on our review of actual cost data for Fiscal Yean 2()00 and 2001, FEMA has established the
following review and processing fees, which are to be submitted with all requests submitted on or
after September 1,2002, that are not otherwise exempted under 44 CFR 72.5. Those fees below
shown in bold format reflect a change in die fee established in June 1,2000.
Fee Schedule for Requests for CLOMAs, CLOMR-Fs, and LOMR-Fs
Request for single-lot/single-structure CLOMA and CLOMR-F $500
Request for single-lot/single-structure LOMR-F $425
Request for single-lot/single-structure LOMR-F based on as-built
information (CLOMR-F previously issued by us) $325
Request for multiple-lot/muitiple-structure CLOMA $700
Request for multiple-lotfmiUtipte-structure CLOMR-F and LOMR-F $800
Request for multiple-lot/multiple-structure LOMR-F based on
as-built information (CLOMR-F previously issued) $700
Fee Schedule for Requests for CLOMRs
Request based on new hydrology, bridge, culvert, channel, or
combination of any of these $4,000
Request based on levee, berm, or other structural measure $4,500
Fee Schedule for Requests for LOMRs and PMRs
Requesters must submit the review and processing fees shown below with requests for LOMRs
and PMRs dated June 1,2000, or later that are not based on structural measures or alluvial fans.
Request based on bridge, culvert, channel, or combination thereof $4,200
Request based on levee, berm, or other structural measure $6,000
Request based on as-built information submitted as follow-up to CLOMR $3,800
Fees for CLOMRs, LOMRs, and PMRs Based on Structural Measures on Alluvial Fans
FEMA has maintained $5,000 as the initial fee for requests for CLOMRs and LOMRs based on
structural measures on alluvial fans. FEMA will also continue to recover the remainder of the
review and processing costs by invoicing the requester before issuing a determination letter,
consistent with current practice. The prevailing private-sector labor rate charged to FEMA ($50
per hour) will continue to be used to calculate the total reimbursable fees.
Payment Submission Requirements
Requestera must make fee payments for non-exempt requests before we render services. This
payment must be mttwfoim of a check or rrHjrieyonler or by credit cart Please make all
checks and money orders in U.S. funds payable to the National Flood Insurance Program. We
will deposit all tees collected to the National Flood Insurance Fund, which is the source of funding
for providing this service.
F*^ /*••«,
NATIONAL FLOOD INSURANCE PROGRAM
FEMA MAP COORDINATION CONTRACTOR
July 1,2003
Mr. Clyde Wickham IN REPLY REFER TO:
City Engineer Case No.: 03-09-0039R
City of Carlsbad Community: City of Carlsbad, CA
1635 Faraday Avenue Community No.: 060285
Carlsbad, CA 92008-7314
316-AD/ACK
Dear Mr. Wickham:
This acknowledges receipt of additional data in support of your request for a Conditional Letter of Map
Revision for the above-referenced community. Our review of the submitted data indicates we have the
minimum data needed to continue our evaluation. If we need additional data to complete our evaluation,
or if delays are encountered, we will notify you hi writing within 60 days of the date of this letter.
If you write to us about your request, please include the case number shown above in your letter. If you
have general questions about your request, Federal Emergency Management Agency (FEMA) policy, or
the National Flood Insurance Program, please call the FEMA Map Assistance Center, toll free, at
1-877-FEMA MAP (1-877-336-2627). If you have specific questions concerning your request, please call
the Revisions Coordinator for your State, Sheila M. Norlin, who may be reached at (703) 317-3054.
Sincerely,
Andrea L. Ryon, P.E., Director
Engineering Division
Michael Baker Jr., Inc.
cc: Mr. Donald See
Associate Civil Engineer
County of San Diego
Howard H. Chang, Ph.D., P.E.
Howard H. Chang Consultants
3601 Eisenhower Avenue, Alexandria, Virginia 22304-6425 PH: 703.960.8800 FX: 703.960.9125
Michael Baker Jr., Inc., under contract with the FEDERAL EMERGENCY MANAGEMENT AGENCY, is a
Map Coordination Contractor for the National Flood Insurance Program
GEOCON
INCORPORATED
GEOTECHNICAL CONSULTANTS
Project No. 06403-12-06
We 16,2003
Howard H. Chang Consultants
Post Office Box 9492
6001 Avenida Alteras
Rancho Santa Fe, California 92067-4492
Attention: Dr. Howard H. Chang
Subject: LA COSTA GREENS
CARLSBAD, CALIFORNIA
RESPONSE TO FEMA LETTER TO CITY OF CARLSBAD DATED MAY 2, 2003
Reference: Response to FEMA Letter to City of Carlsbad dated November 1, 2002, La Costa
Greens, Carlsbad, California, prepared by Geocon Incorporated, dated January 20,
2003.
Gentlemen:
In accordance with the request of Mr. Kevin Sullivan of Morrow Development Incorporated and our
recent discussions, we are providing this transmittal to formally respond to topics addressed in the
subject FEMA letter to the City of Carlsbad. In that letter, dated May 2, 2003, FEMA required that
several items be submitted prior to completing the review of the City of Carlsbad's request to amend
the Flood Insurance Rate Map (FIRM) for San Diego County.
As discussed in our previous correspondence, it is our understanding that the requested FIRM
amendment is due to the proposed construction of an 18-foot-high levee to the west of Alicame Road,
approximately 700 feet north of the intersection with Poinsettia Lane. The levee will function
primarily as a run-off diversion mechanise in an open-flow surface-water system. However, it is
possible that the levee will function as a short-term water retention structure, As such, we have
reviewed the proposed construction as sho^Ti on the preliminary project design drawings daxc-d April
2001. Provided below are our response comments to the subject FEMA letter.
Item 1: The submitted Application / Certification Form 3, entitled "Riverine Structures
From", states that the rate of seepage through the levee system for the flood having
1-percent chance of being equaled or exceeded in any given year (base flood) is
estimated at 0.0015 cubic fee- per second. This* is not addressed in the submitted
report entitled "Response tc FEMA Letter to City of Carlsbad," prepared by
Geocon Incorporated, dated November 1, 2002. Please submit engineering analyses
to demonstrate that seepage through the levee foundation and embankment will not
jeopardize embankment or foundation stability, as outlined in Paragraph 65.10
(b)(4) of the National Flood Insurance Program (NFIP) regulations (copy enclosed).
Response: The NFIP regulations refer to the U.S. Army Corps of Engineers (COE)
manual, "Design and Construction of Levees" (EM 1110-2-1913, Chapter 6, Section II).
6960 Flanders Drive • San Diego, California 921:; 1-2974 • Telephone (858) 558-6900 • Fax (858) 558-61.!>9
The manual indicates that, for the analysis of landside slope stability during steady
seepage conditions from full flood stage, effective stresses should be used. As shown in
Figure A-4 of the referenced report, we have conservatively modeled a fully developed
phreatic surface during flood conditions. The SLOPE/W computer program incorporates
pore-water pressures that exist at this loading condition into the slope stability analysis.
As shown in the seepage calculations and flow net provided on Figure 1, we anticipate
that estimated seepage volumes during steady seepage conditions will be on the order of
1.5 x 10-3 cubic feet per second. Furthermore, the exit gradient calculations provided on
Figure 2 indicate that an approximate factor of safety of 2.6 will be provided against
piping potential.
It should be noted that the seepage and exit gradient calculations provided on Figure 1
were developed assuming a relatively impervious foundation material will be provided
during grading operations associated with the construction of the levee. An assumed
coefficient of permeability was also assigned to the compacted fill material expected to
comprise the embankment.
Item 2: The above-referenced report states that the alluvial soils will be removed and
replaced with compacted fill to a depth that approximately correlates to 3 feet above
the groundwater table at the levee site. This is not reflected in the submitted plans
entitled "City of Carlsbad, La Costa Greens, Alicante Road (North)," prepared by
O'Day Consultants, Inc., dated April 2001. Please submit plans that show the
removed alluvial soils, as recommended in the submitted report.
Response: It is our understanding that the project civil engineer, Hunsaker & Associates
of San Diego, California, will respond to this item.
Item 3: The above referenced report did not include construction compaction methods used
for the proposed levee, as required in Paragraph 65.10 (b) (5) of the NFIP
regulations.
Response: Fill materials should be placed and compacted in horizontal lifts, each not
exceeding 8 inches in uncompacted thickness. The fill should be placed and compacted in
lifts that run parallel to face of the levee. Compaction of fill should be performed by
mechanical means only and a "sheepsfoot" corrpactor should be used. Smooth drum-
roller devices are not acceptable. Due to equipment limitations, thinner lifts may be
necessary to achieve the recommended level of compaction. Compaction is defined as the
in-place dry density of the compacted soil divided by the laboratory-compacted
maximum dry density as determined by ASTM Test Method D 1557-91, expressed as a
percentage.
The engineered fill for the embankment should consist of on-site fine-grained materials
and should be compacted to a minimum of 92-percent compaction at a moisture content
of 1 to 3 percent above the laboratory optimum value.
Project No. 06403-12-06 - 2 - June 16, 2003
Item 4: Please submit an operation and maintenance plan for the proposed levee, in
accordance with Paragraphs 65.10 (c) and (d) of the NFIP regulations.
Response: It is our understanding that the project civil engineer will provide an
operation and maintenance plan for the proposed levee.
We trust that the information presented herein meets your needs at this time. Should you have
questions regarding this correspondence, or if we may be of further service, please contact the
undersigned at your convenience.
Very truly yours,
GEOCON INCORPORATED
Shane Rodacker
RCE 63291
SR:AS:dmc
(2) Addressee
(2) Morrow Development, Inc.
Attention: Mr. Kevin Sullivan
(I/fax) Hunsaker & Associates, Inc.
Attention: Mr. Eric Mosolgo
Project No. 06403-12-06 -3-June 16,2003
FIGURE 1
SEEPAGE CALCULATIONS
Seepage Calculation (Das, 1985):
A = (H/tanp)
A= (18'/tan 26.6°) = 36'
d = 0.3 A + ((A-B)/tan (3) + B + (H / tan B)
d = 10.8' + 0+ 18' +(18'/tan 26.6°)
L = (d / cos a) - V [(d2 / cos2 a) - (H2 / sin2 a)]
L = 56.75' / cos 26.6° - V[(56.752 / cos2 26.6°) - (182 / sin2 26.6°)]
L = 14.35'
q = k L (tan a sin a) = k (14.35) (tan 26.6° x sin 26.6°) = 3.21k, where k = coefficient of
permeability
*assume k value of 1.0 x 10"4 ft / min
q = 3.2 x 1Cr4 ft3/min/ft = 0.46 ft3/day/ft
For 300 ft. long levee, Q = 300' x 0.46 ft3/day/ft
Q = 138 ft3/day = 1.61 x 10'3 ft3/sec
Exit Gradient Calculation:
Hydraulic head, hw = 18'
h' = hw / nd = 18' / 4 = 4.5', where nd = number of equipotential drops through each flow net
channel
Exit gradient, ie = h' /1 = 4.5' / 11' = .41, where I = average distance between equipotential
lines
Critical gradient, ic = [(VT - vw) / Yw] = YB / Yw = [(130 # / ft3 - 62.4 # / ft3) / (62.4 # / ft3)] = 1.08
FS (piping) = ic/ie
FS = 1.08 / .41 = 2.63 > 2.0 to 2.5 (Cedergren, 1989) OK
Project No. 06403-12-06 June 16,2003
NAT!SNAL FLOOD INSURANCE PROGRAM
FEMA MAP COORDINATION CONTRACTOR
April 21, 2003
Mr. Clyde Wickham
City Engineer
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Dear Mr. Wickham:
IN REPLY REFER TO:
Case No.: 03-09-0039R
Community: City of Carlsbad, CA
Community No.: 060285
316-ACK.FRQ
This responds to your letter dated April 12, 2003, concerning an October 1, 2002, request that the Federal
Emergency Management Agency (FEMA) issue a conditional revision to the Flood Insurance Rate Map
(FIRM) for Sail Diego County, California and Incorporated Areas. Pertinent information about the request
is listed below.
Identifier:
Flooding Source:
FIRM Panel(s) Affected:
La Costa Greens
Tributary of San Marcos Creek
06073C1032F
We have completed an inventory of the items that you submitted. We have received the data and the
review and processing fee ($4>500) required to begin a detailed technical review of your request. If
additional data are required, we will inform you within 60 days of the date of this letter.
If you have general questions about your request, FEMA policy, or the National Flood Insurance Program,
please call the FEMA Map Assistance Center, toll free, at 1-877-FEMA MAP (1-877-336-2627). If you
have specific questions concerning your request, please call the Revisions Coordinator for your State,
Sheila M. Norlin, who may be reached at (703) 317-3054.
Sincerely,
Andrea L. Ryon, P.E., Director
Engineering Division
Michael Baker Jr., Inc.
cc: Mr. Donald See
Associate Civil Engineer
County of San Diego
Howard H. Chang, Ph.D., P.E.
Howard H. Chang Consultants
3607 Eisenhower Avenue, Alexandria, Virginia 22304-6425 PH: 703.960.8800 FX: 703.960.9125
Michael Baker Jr., Inc., under contract with the FEDERAL EMERGENCY MANAGEMENT AGENCY, is a
Map Coordination Contractor for the National Flood Insurance Program
NATIONAL FLOOD INSURANCE PROGRAM
FEMA MAP COORDINATION CONTRACTOR
February 5, 2003
Mr. Clyde Wickham IN REPLY REFER TO:
City Engineer Case No.: 03-09-0039R
City of Carlsbad Community: City of Carlsbad, CA
1635 Faraday Avenue Community No.: 060285
Carlsbad, CA 92008-7314
316-ACK.FRQ
Dear Mr. Wickham:
This responds to your letter dated January 27, 2003, concerning an October 1, 2002, request that the
Federal Emergency Management Agency (FEMA) issue a conditional revision to the Flood Insurance
Rate Map (FIRM) for San Diego County, California and Incorporated Areas. Pertinent information
about the request is listed below.
Identifier: La Costa Greens
Flooding Source: Tributary of San Marcos Creek
FIRM Panel(s) Affected: 06073C1032 F
We have completed an inventory of the items that you submitted. The items identified below are
required before we can begin a detailed review of your request.
The submitted data include proposed construction of an 18-foot-high levee along the north branch
channel, west of Alicante Road and approximately 700 feet north of the intersection with Poinsettia
Lane. For this structure, please complete and submit sections A and E of the enclosed
Application/Certification Form 3, entitled "Riverine Structures Form," along with all supporting data
listed on the form.
All required items are to be submitted to us at the address shown at the bottom of this page. If all
required items are not submitted within 90 days of the date of this letter, we will treat any subsequent
request as an original submittal, and it will be subject to all submittal/payment procedures.
If you are unable to meet the 90-day deadline for submittal of required items, and would like FEMA to
continue processing your request, you must request an extension of the deadline. This request must be
submitted to us in writing and must provide (1) the reason why the data cannot be submitted within the
requested timeframe, and (2) a new date for the submittal of the data. FEMA receives a very large
volume of requests and cannot maintain inactive requests for an indefinite period of time. Therefore, the
fees will be forfeited for any request for which neither the requested data nor a written extension request
is received within 90 days.
When you write us about your request, please include the case number referenced above in your letter.
3607 Eisenhower Avenue, Suite 600, Alexandria, Virginia 22304-6425 PH: 703.960.8800 FX: 703.960.9125
Michael Baker Jr., Inc., under contract with the FEDERAL EMERGENCY MANAGEMENT AGENCY, is a
Map Coordination Contractor for the National Flood Insurance Program
If you have general questions about your request, FEMA policy, or the National Flood Insurance
Program, please call the FEMA Map Assistance Center, toll free, at 1-877-FEMA MAP
(1-877-336-2627). If you have specific questions concerning your request, please call the Revisions
Coordinator for your State, Sheila M. Norlin, who may be reached at (703) 317-3054.
Sincerely,
Andrea L. Ryon, P.E., Director
Engineering Division
Michael Baker Jr., Inc.
Enclosures
cc: Mr. Donald See
Associate Civil Engineer
County of San Diego
Howard H. Chang, Ph.D., P.E.
Howard H. Chang Consultants
Federal Emergency Management Agency
Washington, B.C. 20472
FEE SCHEDULE FOR PROCESSING REQUESTS FOR MAP CHANGES
This notice contains the revised fee schedule for processing certain types of requests for changes to
National Flood Insurance Program (NFTP) maps. The change in the fee schedule will allow FEMA
to further reduce the expenses to the NFIP by more fully recovering the costs associated with
processing conditional and final map change requests. The revised fee schedule for map changes
is effective for all requests dated September 1, 2002, or later and supersedes the current fee
schedule, which was established on June 1,2000.
To develop the revised fee schedule for conditional and final map change requests, FEMA
evaluated the actual costs of reviewing and processing requests for Conditional Letters of Map
Amendment (CLOMAs), Conditional Letters of Map Revision - based on Fill (CLOMR-Fs),
Conditional Letters of Map Revision (CLOMRs), Letters of Map Revision - based on Fill
(LOMR-Fs), Letters of Map Revision (LOMRs), and Physical Map Revisions (PMRs).
Based on our review of actual cost data for Fiscal Years 2000 and 2001, FEMA has established the
following review and processing fees, which are to be submitted with all requests submitted on or
after September 1,2002, that are not otherwise exempted under 44 CFR 72.5. Those fees below
shown in bold format reflect a change in the fee established in June 1,2000.
Fee Schedule for Requests for CLOMAs, CLOMR-Fs, and LOMR-Fs
Request for single-lot/single-structure CLOMA and CLOMR-F $500
Request for single-lot/single-structure LOMR-F $425
Request for single-lot/single-structure LOMR-F based on as-built
information (CLOMR-F previously issued by us) $325
Request for multiple-lot/multiple-structure CLOMA $700
Request for multiple-lot/multiple-structure CLOMR-F and LOMR-F $800
Request for multiple-lot/multiple-structure LOMR-F based on
as-built information (CLOMR-F previously issued) $700
Fee Schedule for Requests for CLOMRs
Request based on new hydrology, bridge, culvert, channel, or
combination of any of these $4,000
Request based on levee, berm, or other structural measure $4,500
Fee Schedule for Requests for LOMRs and PMRs
Requesters must submit the review and processing fees shown below with requests for LOMRs
and PMRs dated June 1, 2000, or later that are not based on structural measures or alluvial fans.
Request based on bridge, culvert, channel, or combination thereof $4,200
Request based on levee, berm, or other structural measure $6,000
Request based on as-built information submitted as follow-up to CLOMR $3,800
Fees for CLOMRs, LOMRs, and PMRs Based on Structural Measures on Alluvial Fans
FEMA has maintained $5,000 as the initial fee for requests for CLOMRs and LOMRs based on
structural measures on alluvial fans. FEMA will also continue to recover the remainder of the
review and processing costs by invoicing the requester before issuing a determination letter,
consistent with current practice. The prevailing private-sector labor rate charged to FEMA ($50
per hour) will continue to be used to calculate the total reimbursable fees.
Payment Submission Requirements
Requesters must make fee payments for non-exempt requests before we render services. This
payment must be in the form of a check or money order or by credit card payment. Please make all
checks and money orders in U.S. funds payable to the National Flood Insurance Program. We
will deposit all fees collected to the National Flood Insurance Fund, which is the source of funding
for providing this service.
ERffEFEDERATEMERGENCY MANAGEMENT AGENCY ^ I O.M.B. No. 3067-0148RIVERINE STRUCTURES FORM I 1**™September30,200*
PAPERWORK BURDEN DISCLOSURE NOTICE
Public reporting burden for this form is estimated to average 7 hours per response. The burden estimate includes the time for reviewing
instructions, searching existing data sources, gathering and maintaining the needed data, and completing, reviewing, and submitting the
form. You are not required to respond to this collection of information unless a valid OMB control number appears in the upper right
corner of this form. Send comments regarding the accuracy of the burden estimate and any suggestions for reducing this burden to:
Information Collections Management, Federal Emergency Management Agency, 500 C Street, SW, Washington, DC 20472, Paperwork
Reduction Project (3067-0148). Submission of the form is required to obtain or retain benefits under the National Flood Insurance
Program. Please do not send your completed survey to the above address.
IFlooding Source:
Note: Fill out one form for each flooding source studied.
A. GENERAL
Complete the appropriate section(s) for each Structure listed below:
Channelization complete Section B
Bridge/Culvert .. complete Section C
Dam ... complete Section D
Levee/Flood wall complete Section E
Sediment Transport complete Section F (if required)
Description Of Structure . -.< ' ' •••' " "
1 . Name of Structure:
Type (check one): Qj Channelization Q Bridge/Culvert
Location of Structure:
Downstream Limit/Cross Section:
Upstream Limit/Cross Section:
2. Name of Structure:
Type (check one): [^Channelization Q Bridge/Culvert
Location of Structure:
Downstream Limit/Cross Section:
Upstreapn I jmit/CTross Section-
3. Name of Structure:
Type (check one): Q Channelization Q Bridge/Culvert
Location of Structur0'
Downstream Limit/Cross Section:
Upstream Limit/r.ros? Section-
Note: For more structures, attach additional pages as needed.
Q Levee/Floodwall
Q| Levee/Floodwall
Ql Levee/Floodwall
QDam
QDam
QDam
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 1 of 10
B. CHANNELIZATION O
:looding Source:
Name of Structure:
1. Accessory Structures
The channelization includes (check one):
Qj Levees (Attach Levee/Floodwall System Analysis Form - Section E) QjDrop structures
QSuperelevated sections Q|Transitions in cross sectional geometry
Qj Debris basin/detention basin Qj Energy dissipator
Q Other (Describe):
2. Drawing Checklist
Attach the plans of the channelization certified by a registered professional engineer, as described in the instructions.
3. Hydraulic Considerations
The channel was designed to carry (cfs) and/or the -year flood.
The design elevation in the channel is based on (check one):
Q| Subcritical flow Q Critical flow Q Supercritical flow Qj Energy grade line
If there is the potential for a hydraulic jump at the following locations, check ail that apply and attach an explanation of how the
hydraulic jump is controlled without affecting the stability of the channel.
Q Inlet to channel Q Outlet of channel QAt Drop Structures QAt Transitions
Q Other locations (specify):
4. Sediment Transport Considerations
Was sediment transport considered? Q Yes GlMo If Yes, then fill out Section F (Sediment Transport).
If No, then attach your explanation for why sediment transport was not considered.
C. BRIDGE/CULVERT
Flooding Source:
Name of structure:.
1. This revision reflects (check one):
QjNew bridge/culvert not modeled in the FIS
Q Modified bridge/culvert previously modeled in the FIS
analysis of bridge/culvert previously modeled in the FIS
2. Hydraulic model used to analyze the structure (e.g., HEC-2 with special bridge routine, WSPRO, HY8): _
If different than hydraulic analysis for the flooding source, justify why the hydraulic analysis used for the flooding source could not
analyze the structures. Attach justification.
3. Attach plans of the structures certified by a registered professional engineer. The plan detail and information should include the
following (check the information that has been provided):
•J Dimensions (height, width, span, radius, length) Q Erosion Protection
LJ Shape (culverts only) QLOW Chord Elevations - Upstream and Downstream
^Material QjTop of Road Elevations - Upstream and Downstream
Q Beveling or Rounding Qj Structure Invert Elevations - Upstream and Downstream
QWing Wall Angle [^Stream Invert Elevations - Upstream and Downstream
QSkew Angle (^Cross-Section Locations
fjj Distances Between Cross Sections
4. Sediment Transport Considerations
Was sediment transport considered? QYes Q| No If Yes, then fill out Section F (Sediment Transport).
If No, then attach your explanation for why transport was not considered.
FEW A Form 81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 2 of 10
D DAM
Flooding Source:
Name of Structure:
1. This request is for (check one): Q Existing dam
2. The dam was designed by (check one): Q Federal agency
Q Private organization Name of the agency or organization:
3. Does the project involve revised hydrology? QYes
[^Modification of existing dam
Q State agency Q Local government agency
If Yes, complete the Riverine Hydrology & Hydraulics Form (Form 2)
4. Does the submittal include debris/sediment yield analysis? QjYes
If Yes.then fill out Section F (Sediment Transport).
If No, then attach your explanation for why debris/sediment analysis was not considered.
5. Does the Base Flood Elevation behind the dam or downstream of the dam change?
Ql Yes Q No If Yes, complete the Riverine Hydrology & Hydraulics Form (Form 2) and complete the table below.
Stillwater Elevation Behind the Dam
FREQUENCY (% annual chance) FIS REVISED
10-year (10%)
50-year (2%)
100-year (1%)
500-year (0.2%)
Normal Pool Elevation
6. Please attach a copy of the formal Operation and Maintenance Plan.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2Form3 Page 3 of 10
E. LEVEE/FLOODWALL o
1. System Elements
a. This Levee/Floodwall analysis is based on (check one):
Q upgrading of an existing levee/floodwall system
Qa newly constructed levee/floodwall system
preanalysis of an existing levee/floodwall system
b. Levee elements and locations are (check one):
Q earthen embankment, dike, berm, etc. Station to
[^structural floodwall Station to
QjOther (describe): Station to
c. Structural Type (check one):
Q monolithic cast-in place reinforced concrete
[^reinforced concrete masonry block
Qsheet piling
Q Other (describe):
d. Has this levee/floodwall system been certified by a Federal agency to provide protection from the base flood?
QjYes QNo
{ If Yes, by which agency?
e. Attach certified drawings containing the following information (indicate drawing sheet numbers):
1. Plan of the levee embankment and floodwall structures Sheet Numbers:
2. A profile of the levee/floodwall system showing the
Base Flood Elevation (BFE), levee and/or wall crest and
foundation, and closure locations for the total levee system. Sheet Numbers:
3. A profile of the BFE, closure opening outlet and inlet
invert elevations, type and size of opening, and kind of closure Sheet Numbers:
4. A layout detail for the embankment protection measures. Sheet Numbers:
5. Location, layout, and size and shape of the levee
embankment features, foundation treatment, floodwall
structure, closure structures, and pump stations. Sheet Numbers:
2. Freeboard
a. The minimum freeboard provided the BFE is.
Riverine
3.0 feet or more at the downstream end and throughout tlYes QNo
3.5 feet or more at the upstream end QYes
4.0 feet within 100 feet upstream of all structures and/or constrictions Qi Yes
Coastal
1.0 foot above the height of the one percent wave associated with the 1%-annual-chance
stillwater surge elevation or maximum wave runup (whichever is greater) QYes QNo
2.0 feet above the 1%-annual-chance stillwater surge elevation . QYes
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2Form3 Page 4 of 10
E. LEVEE/FLOODWALL (CONTINUElW
2. Freeboard (continued)
Please note, occasionally exceptions are made to the minimum freeboard requirement. If an exception is requested,
attach documentation addressing Paragraph 65.1 0(b)(1)(ii) of the NFIP regulations.
If No is answered to any of the above, please attach an explanation,
b. Is there an indication from historical records that ice-jamming can affect the BFE? QYes QNo
If Yes, provide ice-jam analysis profile and evidence that the minimum freeboard discussed above st II exists.
3. Closures
a. Opening through the levee system (check one): Q exists Q does not exist
If opening exists, list all closures:
Channel Station Left or Right Bank Opening Type Highest Elevation for
Opening Invert
Type of Closure Device
(Extend table on an added sheet as needed and reference)
Note: Geotechntoal and geologic data
In addition to the required detailed analysis reports, data obtained during field and laboratory investigations and used in the
design analysis for the following system features should be submitted in a tabulated summary form. (Reference U.S. Army Corps of Engineers
[USAGE] EM-1 11 0-2-1 906 Form 2086.)
4. Embankment Protection
a. The maximum levee slope landside
b. The maximum levee slope floodsid
c. The range of velocities along the le
d. Embankment material is protected
e. Riprap Design Parameters (check
Attach references
Reach
Sta to
Sta to
Sta to
Sta to
Sta to
Sta to
is-
sis:
/ee during the base
by (describe what ki
3ne): [|
Sideslope
flood is
nd):
]j Velocity
Flow
Depth
(min ) to fmax^
[_J Tractive stress
Velocity Curve or stone
Straight n nU 100 U 50
s Riprap Deplh of
Thickness loeoown
(Extend table on an added sheet as needed and reference each entry)
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2Form3 Page S of 10
t. LEVEE/FLOODWALL (CONTINUED)
Embankment Protection (continued)
f. Is a bedding/filter analysis and design attached? QYes
g. Describe the analysis used for other kinds of protection used (include copies of the design analysis):
Attach engineering analysis to support construction plans.
5. Embankment and Foundation Stability
a. Identify locations and describe the basis for selection of critical location for analysis:
QOverall height: Sta., height ft.
Q Limiting foundation soil strength:
Sta. , depth to
strength y) -
slope: SS =
degrees, c =
(h)to __
psf
(v)
(Repeat as needed on an added sheet for additional locations)
b. Specify the embankment stability analysts methodology used (e.g., circular arc, sliding block, infinite slope, etc.):
c. Summary of stability analysis results:
Case Loading Conditions Critical Safety Factor Critical (Min.)
End of construction 1.3
Sudden drawdown 1.0
III Critical flood stage 1.4
IV Steady seepage at flood stage 1.4
VI | Earthquake (Case I)1.0
(Reference: USAGE EM-1110-2-1913 Table 6-1)
d. Was a seepage analysis for the embankment performed?
If Yes, describe methodology used:
QYes QiNo
e. Was a seepage analysis for the foundation performed?
f. Were uplift pressures at the embankment landside toe checked?
g. Were seepage exit gradients checked for piping potential?
h. The duration of the base flood hydrograph against the embankment is
Attach engineering analysis to support construction plans.
QjNo
QYes QNo
QYes QNo
hours.
FEMA Form 81-89B, SEPT 02 Riverine Sturctures Form MT-2Form3 Page 6 of 10
E. LEVEE/FLOODWALL (CONTINUElV
6. Floodwall and Foundation Stability
a. Describe analysis submittal based on Code (check one):
Q|UBC(1988) or Q Other (specify):
b. Stability analysis submitted provides for:
Qj Overturning Q Sliding If not, explain:
c. Loading included in the analyses were:
Q Lateral earth @ PA= _ psf; Pp = psf
Q Surchage-Slope @ , Q| surface
Q Wind @ Pw =
psf
psf
Qj Seepage (Uplift);%gQ| Earthquake @ Peq =
1%-annual-chance significant wave height ft.
Q 1%-annual-chance significant wave period: sec.
d. Summary of Stability Analysis Results: Factors of Safety.
Itemize for each range in site lay out dimension and loading condition limitation for each respective reach.
Loading Condition Criteria (Min)
Overturn Sliding
Sta
Overturn
To
Sliding
Sta
Overturn
To
Sliding
Dead & Wind 1.5 1.5
Dead & Soil 1.5 1.5
Dead, Soil, Flood, &
Impact
1.5 1.5
Dead, Soil, & Seismic 1.3 1.3
(Ref: FEMA 114 Sept 1986; USACE EM 1110-2-2502)
(Note: Extend table on an added sheet as needed and reference)
e. Foundation bearing strength for each soil type:
Bearing Pressure Sustained Load (psf)Short Term Load (psf)
Computed design maximum
Maximum allowable
f. Foundation scour protection Q is, Q is not provided. If provided, attach explanation and supporting documentation.
Attach engineering analysis to support construction plans.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2Form3 Page 7 of 10
t. LEVEE/FLOODWALL (CONTINUED)
7. Settlement
a. Has anticipated potential settlement been determined and incorporated into the specific construction elevations to maintain the
established freeboard margin? Q Yes Q No
b. The computed range of settlement is ft. to ft.
c. Settlement of the levee crest is determined to be primarily from:
Qj Foundation consolidation
Ql Embankment compression
Of Other (Describe):
d. Differential settlement of floodwalls Q has Qjhas not been accommodated in the structural design and construction.
Attach engineering analysis to support construction plans.
8. Interior Drainage
a. Specify size of each interior watershed:
Draining to pressure conduit: acres
Draining to ponding area: acres
b. Relationships Established
Ponding elevation vs. storage QYes Q No
Ponding elevation vs. gravity flow QYes Q No
Differential head vs. gravity flow QlYes Q No
c. The river flow duration curve is enclosed: QYes Q No
d. Specify the discharge capacity of the head pressure conduit: cfs
e. Which flooding conditions were analyzed?
• Gravity flow (Interior Watershed) QYes Q No
* Common storm (River Watershed) QYes Q| No
* Historical ponding probability QYes Q No
• Coastal wave overtopping QlYes Q No
If No for any of the above, attach explanation.
f. Interior drainage has been analyzed based on joint probability of interior and exterior flooding and the capacities of pumping and
outlet facilities to provide the established level of flood protection. Q Yes [J No
If No, attach explanation.
g. The rate of seepage through the levee system for the base flood is cfs.
h. The length of levee system used to drive this seepage rate in item g: ft.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 8 of 10
E. LEVEE/FLOODWALL (CONTINUED)
8. Interior Drainage (continued)
i. Will pumping plants be used for interior drainage?
If Yes, include the number of pumping plants:
For each pumping plant, list:
QYes
Plant #1 Plant #2
The number of pumps
The ponding storage capacity
The maximum pumping rate
The maximum pumping head
The pumping starting elevation
The pumping stopping elevation
Is the discharge facility protected?
Is there a flood warning plan?
How much time is available between
warning and flooding?
Will the operation be automatic? QjYes QjNo
If the pumps are electronic, are there backup power sources? QYes QNo
(Reference: USAGE EM-1110-2-3101, 3102, 3103, 3104, and 3105)
Include a copy of supporting documentation of data and analysis. Provide a map showing the flooded area and maximum ponding
elevations for all interior watersheds that result in flooding.
9. Other Design Criteria
a. The following items have been addressed as stated:
Liquefaction Qis Q| is not a problem
Hydrocompaction Q is Q is not a problem
Heave differential movement due to soils of high shrink/swell Q is Q is not a problem
b. For each of these problems, state the basic facts and corrective action taken:
Attach supporting documentation.
c. If the levee/floodwall is new or enlarged, will the structure adversely impact flood levels and/or flow velocities
floodside of the structure? QYes QNo
Attach supporting documentation.
d. Sediment Transport Considerations:
Was sediment transport considered? QYes ^}No If Yes, then fill out Section F (Sediment Transport).
If No, then attach your explanation for why sediment transport was not considered.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2Form3 Page 9 of 10
W
E. LEVEE/FLOODWALL (CONTINUED)
10. Operational Plan and Criteria
a. Are the planned/installed works in full compliance with Part 65.10 of the NFIP regulations? Q|Yes
b. Does the operation plan incorporate all the provisions for closure devices as required in Paragraph 65.10(c)(1) of the NFIP
regulations? Q Yes Q| No
c. Does the operation plan incorporate all the provisions for interior drainage as required in Paragraph 65.10(c)(2) of the NFIP
regulations? Q Yes Qj No
If the answer is No to any of the above, please attach supporting documentation.
11. Maintenance Plan
a. Are the planned/installed works in full compliance with Part 65.10 of the NFIP regulations? QYes QNo
If No, please attach supporting documentation.
12. Operations and Maintenance Plan
Please attach a copy of the formal Operations and Maintenance Plan for the levee/floodwall.
F. SEDIMENT TRANSPORT
Flooding Source:
Mame of Structure:
',<(,., :•••<:•>:•• •• v.-.. i .';V,f;i,'.. 'I'rff'i.i -V- !;;;«\i'' •'• 4 '*''• •••' ii',-!''';" *tf>-.<''^«fe^{;iy>'V;p;*^V5*^i,,
If there is any indication from historical 'records that sediment transport (including scour and deposition) can affect the Base Flood
Elevation (BFE); and/or based oh the stream morphology, vegetative cover, development of the watershed and bank conditions, there is a
potential for debris and sediment transport (including scour and deposition) to affect the BFEs, then provide the following information
along with the supporting documentation:
Sediment load associated with the base flood discharge: Volume acre-feet
Debris load associated with the base flood discharge: Volume acre-feet
Sediment transport rate (percent concentration by volume)
Method used to estimate sediment transport:
Most sediment transport formulas are intended for a range of hydraulic conditions and sediment sizes; attach a detailed explanation for
using the selected method. '
Method used to estimate scour and/or deposition:
Method used to revise hydraulic or hydrologic analysis (model) to account for sediment transport:
Please note that bulked flows are used to evaluate the performance of a structure during the base flood; however, FEMA does not map
BFEs based on bulked flows.
If a sediment analysis has not been performed, an explanation as to why sediment transport (including scour and deposition) will not
affect the BFEs or structures must be provided.
FEMA Form 81-89B, SEPT 02 Riverine Structures Form MT-2 Form 3 Page 10 of 10
NATIONAL FLOOD iNSURAl^uE PROGRAM
FEMA MAP COORDINATION CONTRACTOR "Rue
November 1,2002
Mr. Clyde Wickham
City Engineer
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Dear Mr. Wickham:
IN REPLY REFER TO:
Case No.: 03-09-0039R
Community: City of Carlsbad, CA
Community No.: 060285
316-ACK.FRQ
This responds to your request dated October 1, 2002, that the Federal Emergency Management Agency
(FEMA) issue a conditional revision to the Flood Insurance Rate Map (FIRM) for San Diego County,
California and Incorporated Aieas,. Pertinent information about the request is listed beiow.
Identifier:La Costa Greens
a.
Flooding Source:
FIRM Panel(s) Affected:
Tributary of San Marcos Creek
06073C1032F
FEMA has implemented a procedure to recover costs associated with reviewing and processing requests
for modifications to published flood information and maps. Effective September 1, 2002, FEMA revised
that fee schedule. A copy of the notice summarizing the current fee schedule, which was published in
the Federal Register, is enclosed foi \our information. In accordance with this schedule, the fee for your
request is $4,500 and must be submitted before we can continue processing your request. Payment of
this fee must be made in the form of a check or money order, made payable in U.S. funds to the National
Flood Insurance Program (NFIP), or credit card payment. For identification purposes, the case number
referenced above must be included on the check or money order. We will not perform a detailed
technical review of your request until we receive this payment.
Payment must be forwarded to one of the addresses listed below.
'Qt
*
using U.S. r
Federal Emergency Management Agency
Fee-Charge System Administrator
P.O. Box 3173
Merrifield, VA 22116-3173
FEMA Fee-Charge System Administrator
c/o Dewberry & Davis
METS Division, Stop 19A
8401 Arlington Boulevard
Fairfax, VA 22031
We have completed an inventory of the items that you submitted. The items identified below are
required before we can begin a detailed review of your request.
1. The submitted undated topographic work map entitled "CLOMR Exhibit For La Costa Greens,"
prepared by O'Day Consultants, does not show the effective boundaries of the Special Flood
Hazard Area (SFHA), the area that would be inundated by the flood having a 1-percent chance of
being equaled or exceeded in any given year (base flood), along the Tributary of San Marcos
Creek. Please submit a revised topographic work map, certified by a registered professional
3601 Eisenhower Avenue, Alexandria, Virginia 22304-6425 PH: 703.960.8800 FX: 703.960.9125
Michael Baker Jr., Inc., under contract with the FEDERAL EMERGENCY MANAGEMENT AGENCY, is a
Map Coordination Contractor for the National Flood Insurance Program
engineer, that shows the effective and revised SFHA boundary delineations and how the revised
SFHA boundary delineations tie into the effective SFHA boundary delineations upstream and
downstream of the revised reach.
2. According to the submitted information, a berm is being proposed on the north branch channel.
Please submit all supporting backup data for this berm.
3. The submitted HEC-RAS model entitled "La Costa Greens," prepared by Howard H. Chang
Consultants, dated August 2002, is missing the files entitled "alga.fgfl/ to g03)" "alga.(/07 to
f03)," and "a\ga.(p01 top03)." Please provide copies of these files on diskette.
All required items (except the required fee) are to be submitted to us at the address shown at the bottom
of the first page. If all required items are not submitted within 90 days of the date of this letter, we will
treat any subsequent request as an original submittal, and it will be subject to all submittal/payment
procedures.
If you are unable to meet the 90-day deadline for submittal of required items, and would like FEMA to
continue processing your request, you must request an extension of the deadline. This request must be
submitted to us in writing and must provide (1) the reason why the data cannot be submitted within the
requested timeframe, and (2) a new date for the submittal of the data. FEMA receives a very large
volume of requests and cannot maintain inactive requests for an indefinite period of time. Therefore, the
fees will be forfeited for any request for which neither the requested data nor a written extension request
is received within 90 days.
When you write us about your request, please include the case number referenced above in your letter.
If you have general questions about your request, FEMA policy, or the NFIP, please call the FEMA Map
Assistance Center, toll free, at 1-877-FEMA MAP (1-877-336-2627). If you have specific questions
concerning your request, please call the Revisions Coordinator for your State, Sheila M. Norlin, who
may be reached at (703) 317-3054.
Sincerely,
Andrea L. Ryon, P.E., Director
Engineering Division
Michael Baker Jr., Inc.
Enclosures
cc: Mr. Donald See
Associate Civil Engineer
County of San Diego
Howard H. Chang, Ph.D., P.E.
Howard H. Chang Consultants
Federal Emergency Management Agency
Washington, D.C. 20472
FEE SCHEDULE FOR PROCESSING REQUESTS FOR MAP CHANGES
This notice contains the revised fee schedule for processing certain types of requests for changes to
National Flood Insurance Program (NFIP) maps. The change in the fee schedule will allow FEMA
to further reduce the expenses to the NFIP by more fully recovering the costs associated with
processing conditional and final map change requests. The revised fee schedule for map changes
is effective for all requests dated September 1,2002, or later and supersedes the current fee
schedule, which was established on June 1,2000.
To develop the revised fee schedule for conditional and final map change requests, FEMA
evaluated the actual costs of reviewing and processing requests for Conditional Letters of Map
Amendment (CLOMAs), Conditional Letters of Map Revision - based on Fill (CLOMR-Fs),
Conditional Letters of Map Revision (CLOMRs), Letters of Map Revision - based on Fill
(LOMR-Fs), Letters of Map Revision (LOMRs), and Physical Map Revisions (PMRs).
Based on our review of actual cost data for Fiscal Years 2000 and 2001, FEMA has established the
following review and processing fees, which are to be submitted with all requests submitted on or
after September 1,2002, that are not otherwise exempted under 44 CFR 72.5. Those fees below
shown in bold format reflect a change in the fee established in June 1,2000.
Fee Schedule for Requests for CLOMAs, CLOMR-Fs, and LOMR-Fs
Request for single-lot/single-structure CLOMA and CLOMR-F $500
Request for single-lot/single-structure LOMR-F $425
Request for single-lot/single-structure LOMR-F based on as-built
information (CLOMR-F previously issued by us) $325
Request for multiple-lot/multiple-structure CLOMA $700
Request for multiple-lot/multiple-structure CLOMR-F and LOMR-F $800
Request for multiple-lot/multiple-structure LOMR-F based on
as-built information (CLOMR-F previously issued) $700
Fee Schedule for Requests for CLOMRs
Request based on new hydrology, bridge, culvert, channel, or
combination of any of these $4,000
Request based on levee, berm, or other structural measure $4,500
o
Fee Schedule for Requests for LOMRs and PMRs
Requesters must submit the review and processing fees shown below with requests for LOMRs
and PMRs dated June 1,2000, or later that are not based on structural measures or alluvial fans.
Request based on bridge, culvert, channel, or combination thereof $4,200
Request based on levee, berm, or other structural measure $6,000
Request based on as-built information submitted as follow-up to CLOMR $3,800
Fees for CLOMRs, LOMRs, and PMRs Based on Structural Measures on Alluvial Fans
FEMA has maintained $5,000 as the initial fee for requests for CLOMRs and LOMRs based on
structural measures on alluvial fans. FEMA will also continue to recover the remainder of the
review and processing costs by invoicing the requester before issuing a determination letter,
consistent with current practice. The prevailing private-sector labor rate charged to FEMA ($50
per hour) will continue to be used to calculate the total reimbursable fees.
Payment Submission Requirements
Requesters must make fee payments for non-exempt requests before we render services. This
payment must be in the form of a check or money order or by credit card payment. Please make all
checks and money orders in U.S. funds payable to the National Flood Insurance Program. We
will deposit all fees collected to the National Flood Insurance Fund, which is the source of funding
for providing this service.