RECORDING REQUESTED BY:                            

 

                                                                                            

WHEN RECORDED MAIL TO:                             

                                                                

                                                                                                               

Luce, Forward, Hamilton & Scripps LLP                   

600 West Broadway, Suite 2600                                                          

San Diego, CA 92101                                              

Attn: Nancy T. Scull, Esq.                                         

                                                                          

 

                                                                                                                                                                              

                                                                          

                                       

 

 

                                               DECLARATION OF COVENANTS,

                          CONDITIONS AND RESTRICTIONS FOR ENCINITAS RANCH

 

 

 

 

 

         THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR ENCINITAS RANCH ("Declaration") is made this ____ day of _________ 1999, by ENCINITAS RANCH LLC, a California limited liability company ("Declarant"), with reference to the facts set forth below.

 

 

 

 

 

                                                                    RECITALS

 

 

 

         A.        Declarant owns or controls through its wholly owned subsidiaries, portions of the community situated in the City of Encinitas, County of San Diego, and State of California known as "Encinitas Ranch" ("Encinitas Ranch").  Declarant desires to record this Declaration against a portion of Encinitas Ranch more particularly described on Exhibit "A" attached hereto and incorporated herein ("Covered Property").

 

 

 

         B.         Declarant may add all or any of the real property described on Exhibit "B" attached hereto and incorporated herein ("Annexable Property") and said Annexable Property so annexed will thereupon be subject to this Declaration and become a part of the Covered Property.

 

 

 

         C.        Declarant intends to develop the Covered Property as a master planned development (as defined in Section 2782.32 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 (California Civil Code Section 1350 et seq.).  The Covered Property subject to this Declaration will be developed as a master planned community to be governed by the Encinitas Ranch Community Association, a California non-profit mutual benefit corporation ("Community Association").  If developed as planned and consistent with the Encinitas Ranch Specific Plan and the City of Encinitas requirements, approximately 530 Residences (as defined below) will be constructed on the Covered Property.  There will also be certain areas which will be conveyed in fee title to the Community Association as Community Common Area (as hereinafter defined) and certain areas over which easements will be conveyed to the Community Association, as Common Maintenance Area (as hereinafter defined).  The Covered Property will be developed with several neighborhood communities ("Neighborhoods"), each of which may be covered by one or more final  subdivision maps.  The Neighborhoods may be changed from time to time and there is no guarantee that any Neighborhoods will be included within the Covered Property.

 

        D.        All of the Covered Property will hereafter be held and conveyed subject to certain protective covenants, conditions and restrictions hereinafter set forth.  Before any of the Lots (as defined below) are sold, 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. 

 

 

 

                                                                   ARTICLE 1

 

 

                                                                DECLARATION

 

 

         NOW, THEREFORE, Declarant hereby covenants, agrees and declares that all of the Covered Property is, and shall be, held, conveyed, encumbered, hypothecated, leased, rented, used, occupied and improved subject to the following limitations, covenants, conditions, restrictions, easements, liens and charges which are hereby declared and agreed to be in furtherance of a general plan for the subdivision, improvement, protection, maintenance and sale of all of the Covered Property and all of which are declared and agreed to be for the purpose of enhancing, maintaining and protecting the value and attractiveness of the Covered Property and every part thereof.  All of the limitations, covenants, conditions, restrictions, easements, liens and charges are equitable servitudes and shall run with the land and shall be binding upon and inure to the benefit of all parties having or acquiring any right, title or interest, in the Covered Property or any part thereof, and shall be binding on and inure to the benefit of each successor‑in‑interest of such parties.  Declarant hereby declares that all of the Covered Property described in Exhibit "A" shall be subject to this Declaration and shall constitute the initial increment of land subject to this Declaration.  Declarant declares that pursuant to the Article hereof entitled "Annexation of Real Property" all or any portion of the real property described on Exhibit "B" may be annexed and become subject to this Declaration and, upon annexation, the Annexable Property shall be subject to the limitations, restrictions, easements, covenants, conditions, liens and charges of this Declaration.

 

 

 

                                                                   ARTICLE 2          

 

 

                                                                 DEFINITIONS

 

 

Unless the context clearly indicates otherwise, the following terms used in this Declaration are defined as set forth below.

 

 

 

         2.1              Accessory Unit.  The term "Accessory Unit" means an attached or detached single family residence apartment constructed and used in conformance with Chapter 24.21 and Section 30.48.040W of the City of Encinitas Municipal Code, as amended from time to time.

 

 

 

         2.2              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 Association in collecting and/or enforcing payment of assessments, fines and/or penalties.

 

 

 

        2.3              Annexable Property.  The term "Annexable Property" means any or all of the real property described on Exhibit "B" which may be made subject to this Declaration by annexation pursuant to the provisions set forth in Article 14 of this Declaration and any modifications or additions to such Annexable Property as a result of any lot line or boundary adjustments.

 

 

         2.4              Architectural Committee.  The term "Architectural Committee" means the committee which shall be appointed by the Community Board and shall perform the duties described in Article 7 of this Declaration.

 

 

 

         2.5              Architectural Standards.  The term "Architectural Standards" means the architectural, design and other procedures and standards promulgated by the Community Board for implementation by the Architectural Committee.

 

 

 

         2.6              Base Budget.  The term "Base Budget" means the elements of the budget for the Community Association which itemizes the cost components to be shared by all Members of the Community Association, as provided in this Declaration and the Community Bylaws.

 

 

 

         2.7              Brush Management Areas.  The term "Brush Management Areas" means those portions of any Lots and/or Community Common Area which are located within any brush management or fuel modification areas established from time to time by the  City or other Governmental Agencies.  Brush Management Areas may, but shall not be required to be, identified in a Supplementary Declaration.  Brush Management Areas may also include areas located outside of the boundaries of the Covered Property which are identified in a Supplementary Declaration which the City or another Governmental Agency requires the Community Association to maintain in accordance with the requests of the City or the applicable Governmental Agency.

 

 

 

         2.8              Builder Parcels.  The term "Builder Parcels" means those parcels of real property which are sold to Merchant Builders (as hereinafter defined).

 

 

 

         2.9              City.  The term "City" refers to the City of Encinitas.

 

 

 

         2.10          Common Expenses.  The term "Common Expenses" means the actual and estimated costs and expenses incurred or to be incurred by the Community Association, the Community Board or the Architectural Committee, including, but not limited to, the following:

 

 

 

                 2.10.1          maintenance, management, operation, repair and replacement of the Community Common Area, Common Maintenance Areas (including any Cost Centers), Entry Monument Areas and all other areas within the Covered Property which are maintained by the Community Association;

 

 

 

      2.10.2          due but unpaid Community Assessments (as hereinafter defined);

 

 

 

   2.10.3          maintenance by the Community Association of areas within the public right‑of‑way of public streets in the vicinity of the Covered Property as provided in this Declaration or pursuant to agreements with the City;

 

 

 

 

   2.10.4          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;

 

 

 

   2.10.5          the costs of any utilities, landscaping and other services benefiting the Owners and their Lots to the extent such services are paid for by the Community Association;

 

 

 

   2.10.6          the costs of fire, casualty, liability, worker's compensation and other insurance covering the Community Common Area and activities of the Community Association or obtained by the Community Association pursuant to the provisions of this Declaration;

 

 

 

   2.10.7          reasonable reserves as deemed appropriate by the Community Board or otherwise required pursuant to the Community Governing Documents;

 

 

 

   2.10.8          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;

 

 

 

   2.10.9          taxes paid by the Community Association;

 

 

 

   2.10.10      amounts paid by the Community Association for the discharge of any lien or encumbrance levied against the Community Common Area or portions thereof;

 

 

 

   2.10.11      costs incurred by the Architectural Committee or other committees of the Community Association; and

 

 

 

   2.10.12      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 and/or maintenance of the Community Common Area, or in furtherance of the purposes or the discharge of any obligations imposed on the Community Association by the Community Governing Documents.

 

 

 

         2.11          Common Maintenance Area or Common Maintenance Areas.  The term "Common Maintenance Area" or "Common Maintenance Areas" means those areas within the Covered Property or adjacent to the Covered Property (including any adjacent public property or public right-of-way) which are not owned by the Community Association but which the Community Association is obligated to maintain as provided in any Supplementary Declaration or separate maintenance or easement agreements entered as into by the Community Association.  The Common Maintenance Areas shall be identified in Supplementary Declarations.  The term Common Maintenance Areas includes the Slope Maintenance Areas (as defined below).

 

 

 

         2.12          Community Articles.  The term "Community Articles" means the Articles of Incorporation of the Community Association, as the same may from time to time be duly amended.

 

 

 

         2.13          Community Assessments.  The term "Community Assessments" means collectively or individually, as required by the context, all or any of the assessments levied by the Community Association pursuant to Article 5 of this Declaration and shall include, without limitation, the Community Assessments defined below.

 

 

 

                 2.13.1          Capital Improvement Assessment.  The terms "Capital Improvement Assessment" or "Capital Improvement Assessments" means a charge against each Owner and such Owner's Lot, representing a portion of the cost to the Community Association for installation or construction of any capital Improvements for the Community Common Area or Common Maintenance Area which the Community Association may from time to time authorize pursuant to the provisions of Article 5 of this Declaration.

 

 

 

   2.13.2          Enforcement Assessment.  The terms "Enforcement Assessment" or "Enforcement Assessments" means the charges assessed against any Owner and such Owner's Lot to reimburse the Community Association for costs incurred in bringing the Owner and such Owner's Lot into compliance with the provisions of this Declaration pursuant to Article 5 of this Declaration.

 

 

 

   2.13.3          Regular Assessment.  The terms "Regular Assessment" or "Regular Assessments" means the amount which is to be paid by each Owner to the Community Association for Common Expenses as described in Article 5 of this Declaration.

 

 

 

             2.13.4          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 Common Area pursuant to the provisions of Article 12 of this Declaration.

 

 

 

             2.13.5          Special Assessment.  The terms "Special Assessment" or "Special Assessments" means an assessment levied by the Community Board if the Community Board determines that the Regular Assessments will be inadequate pursuant to the provisions of Article 5 of this Declaration.

 

 

 

         2.14          Community Association.  The term "Community Association" means the Encinitas Ranch Community Association, a California nonprofit mutual benefit corporation, incorporated under the laws of the State of California, or any successor entity charged with the duties, obligations and powers of said Community Association. 

 

 

 

         2.15          Community Association Rules.  The term "Community Association Rules" means the rules and regulations adopted by the Community Board for the governance of the Covered Property.

 

 

 

         2.16          Community Board.  The term "Community Board" means the Board of Directors of the Community Association.

 

 

 

         2.17          Community Bylaws.  The term "Community Bylaws" means the Bylaws of the Community Association, as the same may from time to time be amended.

 

 

 

         2.18          Community Common Area.  The term "Community Common Area" means all real property and the Improvements situated thereon, owned in fee from time to time by the Community Association for the common use and enjoyment of the Owners.  The Community Common Area shall be described in Supplementary Declarations.

 

 

 

         2.19          Community Directors.  The term "Community Directors" means the members of the Community Board elected pursuant to the provisions of the Community Bylaws.

 

 

 

         2.20          Community Funds.  The term "Community Funds" means collectively all of the funds established by the Community Association for the deposit of Community Assessments.

 

 

 

         2.21          Community Governing Documents.  The term "Community Governing Documents" means the Community Articles, Community Bylaws, Community Association Rules, the Architectural Standards, this Declaration and the Supplementary Declarations, and any amendments to any of the foregoing.

 

 

 

         2.22          Cost Centers.  The term "Cost Centers" means portions of the Covered Property which directly receive a special benefit from any portions of the Community Common Area or Common Maintenance Area and which are designated as Cost Center Maintenance Areas and for which additional Assessments will be imposed on the Owners of Lots within such Cost Center, as provided in the Cost Center Budget.  Cost Centers shall be described in a Supplementary Declaration.

 

 

 

         2.23          Cost Center Budget. The term "Cost Center Budget" means 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 Cost Center, as provided in this Declaration and the Community Bylaws.

 

 

 

         2.24          Cost Center Maintenance Areas.  The term "Cost Center Maintenance Areas" means those portions of the Community Common Area and Common Maintenance Area for which a Cost Center has been established.  The instrument which identifies the Cost Center (e.g., the Supplementary Declaration or other notice of annexation) may also identify the Cost Center Maintenance Areas.  The Cost Center Maintenance Areas shall be described in a Supplementary Declaration.

 

 

 

         2.25          Covered Property.  The term "Covered Property" means all the real property described on Exhibit "A" attached hereto and all Improvements thereon, and, subsequent to the annexation thereof pursuant to this Declaration, any real property which shall become subject to this Declaration.  In the event of the de-annexation of any Covered Property previously subject to this Declaration, the term "Covered Property" shall not be deemed to include any such de-annexed property.

 

 

         2.26          Custom Lots.  The term "Custom Lots" refers to any Custom Lots designated in a Supplementary Declaration.

 

 

 

         2.27          Declarant.  The term "Declarant" means Encinitas Ranch LLC, a California limited liability company ("Encinitas Ranch LLC") and shall include those successors and assigns of Encinitas Ranch LLC who acquire or hold title to any part or all of the Covered Property for purposes of development and are expressly named as a successor Declarant in an Assignment of' Declarant's Rights executed by Encinitas Ranch LLC, or a successor Declarant, and recorded with the County Recorder for San Diego County assigning the rights and duties of Declarant to such successor Declarant, with such successor Declarant accepting and assuming the assignment of such rights and duties.  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.

 

 

 

         2.28          Declaration.  The term "Declaration" means this Declaration of Covenants, Conditions and Restrictions of Encinitas Ranch, and any amendments thereto.

 

 

 

         2.29          DRE.  The term "DRE" means 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.

 

 

 

         2.30          Dwelling.  The term "Dwelling" means the residential dwelling unit together with garages and other structures on the same Lot, including any Accessory Units.

 

 

 

         2.31          Encinitas Ranch Community.  The term "Encinitas Ranch Community" means all of the real property which is, from time to time, included within the community situated in the City of Encinitas commonly known as "Encinitas Ranch."

 

 

 

         2.32          Entry Monument Areas.  The term "Entry Monument Areas" means those areas within which monument signage for the benefit of the Encinitas Ranch Community is located.  The Entry Monument Areas may be located in Community Common Areas or the Lots of certain Owners. Certain Entry Monument Areas may also be located in areas situated outside of the Covered Property.  The Entry Monument Areas shall be identified in a Supplementary Declaration.

 

 

 

         2.33          First Mortgage.  The term "First Mortgage" means a first mortgage or deed of trust which encumbers any one (1) or more Lots and has priority over any other mortgage or deed of trust encumbering such Lot, and shall include any first mortgage or deed of trust securing an obligation of Declarant, Merchant Builder, or an Owner.

 

 

 

         2.34          First Mortgagee.  The term "First Mortgagee" means the Mortgagee of a First Mortgage.

 

 

 

         2.35          FHA.  The term "FHA" means the Federal Housing Administration.

 

 

 

         2.36          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.

 

 

         2.37          Improvements.  The term "Improvement" or "Improvements" means all structures and appurtenances thereto of every type and kind in the Covered Property constructed by an Owner, Declarant or a Merchant Builder, including but not limited to, Dwellings and other buildings, outbuildings, guardhouses, walkways, pedestrian, bicycle trails, utility installations, swimming pools and other recreational facilities, garages, carports, roads, sidewalks, walkways, driveways, parking areas, fences, screening walls, block walls, retaining walls, awnings, patio and balcony covers, stairs, decks, landscaping, hedges, slopes, windbreaks, the exterior surfaces of any visible structure, paintings, planted trees and shrubs, irrigation systems, antennae, poles, signs, solar or wind powered energy systems or equipment, and water softener, heater or air conditioning and heating fixtures or equipment; the demolition or destruction by voluntary action of any structure or appurtenance thereto of every type and kind; the grading, excavation, filling or similar disturbance to the surface of the land including, without limitation, change of grade, change of ground level, change of drainage pattern or change of stream bed; landscaping, planting, clearing or removing of trees, shrubs, grass or plants; and any change or alteration of any previously approved Improvement including any change of exterior appearance color or texture.

 

 

 

         2.38          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 Lot; or (v) any other institution specified by the Community Board in a recorded instrument, who is the First Mortgagee of a First Mortgage encumbering a Lot.

 

 

 

         2.39          Invitee.  The term "Invitee" means any person whose presence within the Covered Property 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.

 

 

 

         2.40          Lot.  The term "Lot" or "Lots" means any improved or unimproved lot or parcel shown on any recorded final subdivision map or any recorded parcel map to the extent such lots or parcels are part of the Covered Property.  Notwithstanding anything to the contrary contained herein, the term "Lot" shall not include any Community Common Area.  A residential structure which includes a main residence and an Accessory Unit shall be deemed a single Lot, unless otherwise shown on a final subdivision map.

 

 

 

        2.41          Maintenance Guidelines.  The term "Maintenance Guidelines" means the guidelines for the ordinary and necessary maintenance, repair, replacement and preservation of the Improvements situated within the Community Common Area and Common Maintenance Area.  Among other things, the Maintenance Guidelines may specify suggested maintenance levels, recommended intervals for regularly scheduled maintenance items, and the scope of required maintenance practices and procedures.  The Maintenance Guidelines may be provided to the Community Association by Declarant and may be supplemented, amended and updated by the Community Board. 

 

 

 

         2.42          Member.  The term "Member" means every person or entity who qualifies for membership as described in Article 3 of this Declaration, including Declarant, as long as Declarant qualifies for membership pursuant to said Article.

 

 

 

         2.43          Merchant Builder or Merchant Builders.  The term "Merchant Builder" or "Merchant Builders" means any person or entity which has or will acquire from Declarant a portion of the Covered Property for the purpose of improving such property with Dwellings or developing and marketing Custom Lots.

 

 

 

         2.44          Mortgage.  The term "Mortgage" means a deed of trust as well as a mortgage encumbering a Lot or other parcels of real property in the Covered Property.

 

 

 

         2.45          Mortgagee.  The term "Mortgagee" means the mortgagee or beneficiary under any Mortgage.

 

 

 

         2.46          Neighborhood.   The term "Neighborhood" means the areas within the Covered Property developed and marketed as an area within the Covered Property.

 

 

 

         2.47          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.

 

 

 

         2.48          Owner.  The term "Owner" means one or more persons or entities who are alone or collectively the record owner of a fee simple title to a Lot, including Declarant and Merchant Builders unless the context provides otherwise.  A contract purchaser under a recorded installment land sales contract shall be included as an Owner but those merely having an interest as security for the performance of an obligation shall not be Owners.

 

 

 

         2.49          Pedestrian Trails.  The term "Pedestrian Trails" means those pedestrian walkways included within the Community Common Area or adjacent to the Covered Property over which easements have been granted to the public. 

 

 

 

         2.50          Perimeter Walls or Fences.  The term "Perimeter Walls or Fences" means any fence or wall situated on the boundary between a Residential Lot and any Community Common Area, public rights of way, or any Maintenance Areas, including Slope Maintenance Areas or any real property located outside of the boundaries of the Covered Property.

 

 

 

         2.51          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 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.

 

 

 

         2.52          Private Streets.  The term "Private Streets" means those streets, roads, drives and storm drain and lighting Improvements within the Covered Property which are owned and maintained by the Community Association as provided herein. 

 

 

 

         2.53          Public Report. The term "Public Report" means the Final Subdivision Public Report issued by the DRE for any Phase in the Covered Property, including any amendments to such Public Report.

 

 

 

         2.54          Residence.  The term "Residence" means the residences constructed within the Covered Property.

 

 

 

         2.55          Slope Maintenance Area.  The term "Slope Maintenance Area" means those portions of the Lots containing slope areas over which the Community Association shall have an easement for maintenance thereof.  The Slope Maintenance Areas shall be described in a Supplementary Declaration(s).

 

 

 

         2.56          Subdivision Map.  The term "Subdivision Map" means any final subdivision or parcel map creating Lots within the Covered Property.

 

 

 

         2.57          Supplementary Declaration.  The term "Supplementary Declaration" means those certain declarations of covenants, conditions and restrictions, or similar instruments, (a) annexing any portion of the Annexable Property and extending the plan of this Declaration to such Annexable Property as provided in Article 14 of this Declaration and/or (b) describing certain areas within the Covered Property that are to be maintained by the Community Association or such other complementary additions and modifications as are provided in Sections 14.1 and 14.5 of this Declaration.

 

 

 

         2.58          VA.  The term "VA" means the United States Department of Veterans Affairs.

 

 

 

         2.59          Voting Power.  The term "Voting Power" means the total number of votes allocated to Lots as set forth in Section 3.2 of this Declaration.

 

 

 

 

                                                                   ARTICLE 3

 

 

                                               THE COMMUNITY ASSOCIATION

 

 

 

         3.1              Membership.

 

 

 

                 3.1.1              Qualifications.  Members of the Community Association shall be (i) Declarant (irrespective of whether Declarant is the owner of a Lot), for so long as Declarant is entitled to either cast a Class C vote pursuant to Section 3.2.3 below or cast votes on behalf of any Merchant Builders, and (ii) each Owner (including Declarant and any Merchant Builder) of one (1) or more Lots in the Covered Property.  Membership in the Community Association shall be subject to the Community Governing Documents.  Ownership of a Lot shall be the sole qualification for an Owner's membership in the Community Association; provided, however, that Declarant shall be a Class C Member irrespective of such ownership.

 

 

 

   3.1.2              Transfer of Membership.  All memberships in the Community Association held by Owners other than Declarant shall be appurtenant to the 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 Lot.  Declarant's Class C membership may not be transferred except to a successor to Declarant's rights to all or a portion of Encinitas Ranch.  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 which specifically assigns such Declarant's Class C membership rights.  Any attempt to make a prohibited membership transfer shall be void and will not be reflected on the books of the Community Association.

 

 

 

   3.1.3              Assignment of Right of Use.  A Member shall have the right to assign, in accordance with the Community Bylaws, such Owner's rights of use and enjoyment in the Community Association to a lessee or tenant of such Owner's 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 Common Area during the term of such assignment.  The assigning member shall remain liable for all charges and assessments attributable to such Owner's Lot.

 

 

 

   3.1.4              Transfer of Membership Upon Sale.  If the Owner of any Lot fails or refuses to transfer the membership registered in such Owner's name to the purchaser of such 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 may levy a transfer fee against new Owners in the amount of the actual costs incurred by the Community Association to change its records 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.

 

 

 

         3.2              Classes of Voting Membership/Member Vote Entitlement.  The Community Association shall have three (3) classes of voting membership which are described below.

 

 

 

                 3.2.1              Class A Membership.  Class A Members shall originally be all Owners of Lots with the exception of Declarant and the Merchant Builders, for so long as there exists a Class B membership.  Each Member will be entitled to cast with respect to each Lot subject to assessment and owned by Class A Members, one (1) vote for each such Lot.

 

 

 

   3.2.2              Class B Membership.  The Class B Member shall be the Declarant who shall be entitled to three (3) votes for each 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 397 Residences, representing seventy-five percent (75%) of the Residences proposed to be developed for Encinitas Ranch have been conveyed to Class A Members;

 

 

 

         (b)               On the fifth anniversary following the most recent conveyance to a Class A Member of the first Lot in any Phase under the authority of a Public Report; or

 

 

 

                         (c)               On the fifteenth anniversary of the first conveyance of a Lot to a Class A member in the Covered Property under authority of a Public Report.

 

 

 

                   3.2.3              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:

 

 

 

                            (a)               When 397 Residences, representing seventy-five percent (75%) of the Residences proposed to be developed for Encinitas Ranch have been conveyed to Class A Members;

 

 

 

                            (b)               On the fifth anniversary following the most recent conveyance to a Class A Member of the first Lot in any Phase under the authority of a Public Report; or

 

 

 

                            (c)               On the fifteenth anniversary of the first conveyance of a Lot to a Class A Member in the Covered Property under authority of a Public Report.

 

 

 

                   3.2.4              Election of Board Members by Declarant.  In addition to the foregoing, twenty percent (20%) of the Members of the Community Board may be elected by Declarant until the first to occur of the following:

 

 

 

                            (a)               When 477 Residences, representing ninety percent (90%) of the Residences proposed to be developed for Encinitas Ranch have been conveyed to Class A Members;

 

 

 

                            (b)               On the fifth anniversary following the most recent conveyance to a Class A Member of the first Lot in any Phase under the authority of a Public Report; or

 

 

 

                            (c)               On the fifteenth anniversary of the first conveyance of a Lot to a Class A Member in the Covered Property under the authority of a Public Report.

 

 

 

         3.3              Continuing Approval of Declarant.  Notwithstanding the foregoing, and without limiting Declarant's rights provided elsewhere in this Declaration or the Community Bylaws, even after the termination of Class B membership, and until such time as Declarant or any entities owned or controlled by Declarant is no longer the fee owner of, or the holder of a mortgage or deed of trust against any portion of Encinitas Ranch, the approval of Declarant shall be required before the Community Association may take any permitted action with respect to the following:

 

 

 

                   3.3.1              Reduction in the level of, or change in allocation of responsibility for (a) maintenance of and repairs to all or part of any Community Common Area and Common Maintenance Area 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 Covered Property set forth in this Declaration;

 

 

 

             3.3.2              Conveyance by the Community Association of all or any part of the Community Common Area and/or conveyance of easements on, over, through and across the Common Maintenance Area;

 

 

 

              3.3.3              Annexation to the Community Association of any of the real property described in Exhibit "B";

 

 

 

                   3.3.4              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;

 

 

 

             3.3.5              Modification, enforcement and review procedures of the Architectural Committee or any change in the Architectural Standards;

 

 

 

             3.3.6              Reduction or modification of any easement or other rights reserved to Declarant pursuant to the provisions of Article 13 of this Declaration; and

 

 

 

             3.3.7              Amendments to this Declaration or the  Community Bylaws which would diminish or otherwise affect Declarant's or any Merchant Builder's right of approval regarding the actions enumerated above.

 

 

 

         3.4              Election Committee.  If deemed necessary by the Community Board, an Election Committee shall be appointed annually by the Community Board to nominate candidates for the Community Board, regulate nominations, evaluate voting requirements, regulate voting procedures and campaigns and adopt rules to insure an orderly and fair election of directors in accordance with the terms of the Community Bylaws.  The Community Board may, from time to time, vest the Election Committee with certain rule‑making powers for the limited purpose of effectuating the fair and orderly election of directors.

 

 

 

         3.5              Commencement of Voting Rights.  An Owner's right to vote, including Declarant's right to vote (except for Declarant's voting rights under Sections 3.2.3 and 3.3 above), shall not vest until Community Assessments have been levied upon such Owner's Lot as provided in this Declaration.  All voting rights shall be subject to the restrictions and limitations provided for herein and in the Community Bylaws.

 

 

 

         3.6              Cost Center Approvals.  Notwithstanding any other provisions of the Community Governing Documents, any action relating solely to the Cost Centers shall require the approval of the prescribed percentage of the class or classes of Members of only those Owners within such Cost Center.  Any amendment of this Declaration to eliminate or change the provisions of this Declaration relating to Cost Centers shall require the approval of the prescribed percentage of the class or classes of Members or the approval of Members other than Declarant (if applicable) of those Owners within such Cost Center.

 

 

 

                                                                   ARTICLE 4

 

 

                                               THE COMMUNITY ASSOCIATION

 

 

 

         4.1              Purpose and Organization.  The Community Association is a nonprofit mutual benefit corporation formed under the laws of the State of California to operate and maintain the Covered Property for the benefit of the Owners.  The Community Association is charged with the duties and is given the powers set forth in this Article and its affairs shall be governed by the Community Governing Documents.  In the event that the Community Association as a corporate entity is dissolved, a nonprofit 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.  Except for those acts which are expressly reserved to the vote of the membership of Owners in this Declaration, any duty, obligation or authority vested or required to be performed and any power or privilege which may be exercised by the Community Association pursuant to this Declaration shall be performed or exercised only by the Community Board or its authorized delegates, agents and servants, and any power, duty, obligation or authority vested or conferred on the Community Board by this Declaration shall be deemed a power, duty, obligation or authority of the Community Association.  The Community Board shall conduct its affairs as provided for in the Community Bylaws.

 

 

 

 

         4.2              Scope of Powers and Duties of Community Association.  The Community Association shall have all of the powers of a nonprofit mutual benefit corporation organized under the laws of the State of California operating for the benefit of the Owners subject only to the limitations expressly set forth in the Community Governing Documents.  The Community Association shall have the power to do any and all acts which are authorized, required or permitted  under the Community Governing Documents.  The Community Association is formed exclusively for those purposes and activities which are specifically and directly related to (i) equipping, maintaining, operating and utilizing the Community Common Area and the Common Maintenance Area, (ii) collecting assessments to finance the maintenance and utilization of the Community Common Area and the Common Maintenance Area, (iii) performing the obligations of the Community Association under the Community Governing Documents, and (iv) administering and enforcing this Declaration and the other Community Governing Documents (collectively, the "Permitted Functions").  Notwithstanding the foregoing, Permitted Functions do not include those activities prohibited pursuant to Section 4.5 below.  The funds and resources of the Community Association shall be utilized solely and exclusively for the direct cost of Permitted Functions.  Nothing in this Section shall be deemed to preclude the use of the Community Common Area or Common Maintenance Area by Declarant or the Merchant Builders for promotional special events and other purposes as authorized by this Declaration.

 

 

 

         4.3              General Powers of the Community Association.  In addition to the duties and powers enumerated elsewhere in the Community Governing Documents and without limiting the generality thereof, the Community Association shall have the powers and authority set forth below, which, unless expressly provided otherwise, may be undertaken by the Community Board, or such committees, entities, persons or companies expressly designated by the Community Board to exercise such powers or authority.

 

 

 

                   4.3.1              Performance of Duties.  The Community Association shall have the power to undertake all of the express duties required under the Section below entitled "Duties of Community Association" to be done by the Community Association.

 

 

 

                   4.3.2              Enforcement.  The Community Association shall have the power to enforce the provisions of the Community Governing Documents by appropriate means and carry out the obligations of the Community Association hereunder, including, without limitation, the expenditure of funds of the Community Association, the employment of legal counsel, the commencement of legal and/or equitable actions, the promulgation and enforcement of the Community Association Rules and the establishment of fines or penalties as provided for in this Declaration.

 

 

 

                   4.3.3              Easements and Rights of Way.  The Community Association shall have the power to grant and convey easements, licenses for use, and rights of way, to any third party where necessary or appropriate in, on, over and through the Community Common Area for the benefit of the Owners, the Community Association or the Covered Property.

 

 

 

                   4.3.4              Dedication.  The Community Association shall have the power to dedicate or grant easements over any of its real property to any public authority, public assessment district or private or public utility company, or other service companies for public use or in connection with providing services to the Covered Property.

 

 

                   4.3.5              Delegation of Powers.  The Community Association shall have the power to delegate its powers under the Community Governing Documents to committees, officers, or employees as expressly authorized by the Community Governing Documents. 

 

 

 

                   4.3.6              Management.  Subject to the provisions of Section 15.6.2 of this Declaration, the Community Association shall have the power to employ a manager or other persons and contract with independent contractors or managing agents who have professional experience in the management of planned unit developments or master associations to perform any services required for the maintenance, protection, operation and preservation of the Covered Property or negotiate and enter into contracts which grant concessions over the Community Common Area.

 

 

 

                   4.3.7              Legal and Accounting.  The Community Association shall have the power to obtain legal and accounting services as may be required by the Community Board for operation of the Community Association or enforcement of the Community Governing Documents.

 

 

 

                   4.3.8              Right of Entry.  The Community Association shall have the power and right (but not the obligation) in accordance with the provisions of this Declaration to enter upon any Lot without liability to any Owner, upon at least twenty‑four (24) hours prior notice, for the purpose of enforcing any of the provisions of the Community Governing Documents, or for the purpose of maintaining any Community Common Area or Common Maintenance Area pursuant to this Declaration; provided, however, that in the event that there is an emergency, the agents and representatives of the Community Board may enter such Lot immediately and without notice for the sole purpose of taking such action as is necessary under the circumstances.  In no event, however, may the Community Association enter into the interior of any Residence.  Any damage caused by an entry by the Community Association pursuant to the provisions of this Section shall be repaired by the Community Association.

 

 

 

                   4.3.9              Acquire Real Property.  The Community Association shall have the power to acquire and hold real property by lease or purchase for offices or other Community Common Area that may be necessary or convenient for the management of the Community Common Area, the administration of the affairs of the Community Association or for the benefit of the Members and Owners.

 

 

 

                   4.3.10          Other Property.  The Community Association shall have the power to acquire and hold, as trustee for the benefit of its Members, tangible and intangible personal property and to dispose of the same by sale or otherwise.  No such personal property of an aggregate value greater than five percent (5%) of the budgeted gross expenses for a fiscal year of the Community Association shall be acquired by or disposed of by the Community Association during that fiscal year without written approval of a majority of the Voting Power.

 

 

 

 

                   4.3.11          Borrow Money.  The Community Association shall have the right in accordance with the Community Governing Documents, to borrow money for the purpose of improving, replacing, restoring or expanding the Community Common Area or adding new Community Common Area or Common Maintenance Area and in aid thereof, to mortgage said property, provided that the prior affirmative vote or written approval of sixty-seven percent (67%) of the Voting Power has been obtained to mortgage said property except that the vote or written approval of the Members shall not be required for any municipal or similar financing offered by a Governmental Agency or for any borrowing during a fiscal year of the Community Association that does not exceed five percent (5%) of the budgeted gross expenses of the Community Association for that fiscal year, and provided further that the rights of such Mortgagees shall be subordinated to the rights of the Members.  In the event of a default upon any such Mortgage of the Community Common Area, the lender's rights thereunder shall be limited to a right, after taking possession of such properties, to charge admission and other fees as a condition to continued enjoyment of the Members and, if necessary, to open the enjoyment of the Community Common Area to a wider public until the Mortgage debt is satisfied, whereupon the possession of such properties shall be returned to the Community Association and all rights of the Members hereunder shall be fully restored.

 

 

 

                   4.3.12          Enforcement of Restrictions and Rules. 

 

 

                            (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 therefore 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.  Addition–ally, 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, orally or in writing, not less than five (5) days before the date of the suspension of privileges or imposition of monetary penalty is to take effect.  For the purposes of this Section, notice shall be given by any method reasonably calculated to provide actual notice.  Notice may be hand-delivered to the Owner or sent by first class registered or certified mail, return receipt requested or overnight courier delivery and addressed to the Owner at the last address of the Owner shown on the Community Association's records, or any other method deemed reasonable by the Community Board for delivering notices. 

 

 

 

                   4.3.13          Public Rights of Use.  The Community Association shall have the power to grant to the public rights of use to the Community Common Area, as may be required by the City or any Governmental Agency.

 

 

                   4.3.14          Cost Centers.  Subject to the restrictions set forth in Sections 4.5.4 and 5.4.6 of this Declaration, the Community Association shall have the power to form and administer Cost Centers in accordance with the terms and provisions of this Declaration and the Community Bylaws.  In connection with the administration of Cost Centers, the Community Association shall have the power to establish advisory committees for any Cost Center, comprised of Owners whose Lots are within the applicable Cost Center.  Such advisory committees may propose special rules and regulations with respect to Cost Centers or Cost Center Maintenance Areas which may be adopted by the Community Board.  The Community Board shall also adopt special election procedures for the election of members of such advisory committees. 

 

 

 

                   4.3.15          Contract for Goods and Services.  The Community Association shall have the power to contract for goods and services for the benefit of the Community Common Area and  Common Maintenance Area necessary for the Community Association to perform its duties and obligations hereunder including, without limitation, enforcing the Community Governing Documents, and performing any of the other Community Association duties or rights, subject to the limitations set forth in Section 4.5.7 below.

 

 

 

                   4.3.16          Litigation.  Subject to the provisions of this Declaration, including, but not limited to, Section 17.4, 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 Common Area and Common Maintenance Area.  Any recovery by the Community Association with respect to any damage to or defect in the Community Common Area and Common Maintenance Area shall be utilized solely for the purpose of paying for the costs of obtaining the recovery and for correcting such damage or defect.

 

 

 

                   4.3.17          Capital Improvements.  The Community Board may, on its own motion or acting on a petition signed by a major–ity of the Owners, approve the construction, installation or acquisition of a particular capital improvement to the Community Common Area and Common Maintenance Area, subject to the limitations set forth in Section 4.5.7 of this Declaration.

 

 

 

         4.4              Duties of Community Association.  The Community Association shall have the duty and obligation to perform the acts and functions stated in this provision subject to and in accordance with the Community Governing Documents.

 

 

 

                   4.4.1              Community Standards.  The Community Association shall establish and maintain overall quality standards for the Covered Property compatible with the development of Encinitas Ranch, including, without limitation, design, signage, maintenance and landscape standards.  The inherent powers and duties emanating therefrom may be delegated by the Community Board to the Architectural Committee.

 

 

                   4.4.2              Community Common Area and Common Maintenance Area.  The Community Association shall accept any Community Common Area and Improvements situated thereon and any easements over the Common Maintenance Area conveyed by the Declarant or any Merchant Builders and/or created under this Declaration and shall maintain, operate, and otherwise manage all of the facilities situated on the Community Common Area and the facilities required to be maintained by the Community Association within the Common Maintenance Area, and all personal property acquired by the Community Association in accordance with the terms and provisions of this Declaration.  The Community Board shall periodically review the nature and scope of the operations of the Community Association to assure such operations are in satisfactory compliance with the requirements of the Community Governing Documents.

 

 

 

                   4.4.3              Taxes.  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 Common Area, 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.  Notwithstanding the foregoing, in no event shall the Community Association have any obligation to pay any such taxes with respect to the Common Maintenance Area, which shall be the obligation of the Owner of fee title thereof. 

 

 

 

                   4.4.4              Community Assessments.  The Community Association shall establish, determine, levy, collect and enforce all Community Assessments and cause to be prepared all budgets and financial statements.

 

 

 

                  4.4.5              Utility Services.  The Community Association shall obtain utility services necessary or desirable, for the benefit of the Community Common Area, 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.

 

 

 

                   4.4.6              Architectural Control.  The Community Association shall have the duty to maintain architectural control over the Covered Property, promulgate Architectural Standards and appoint the Architectural Committee in connection therewith in accordance with the provisions of Article 7 of this Declaration.

 

 

 

                   4.4.7              Community Association Rules.  The Community Association shall adopt, amend, and repeal such rules and regulations as it deems reasonable.  The Community Association Rules shall govern such matters in furtherance of the purposes of the Community Association, including, without limitation, the use of the Community Common Area and Common Maintenance Area.  In the event of any conflict between any such Community Association Rules and any other provisions of the other Community Governing Documents, the provisions of the Community Association Rules shall be deemed to be superseded by the provisions of the other Community Governing Documents  to the extent of any such inconsistency.

 

 

 

 

                   4.4.8              Common Area Maintenance.  The Community Association shall maintain, repair, inspect, replace, paint and landscape the Community Common Area, the Common Maintenance Area and the Entry Monument Areas in accordance with the requirements of the Declaration and any other property and interests owned by the Community Association in accordance with the provisions of the Community Governing Documents, and acquire, maintain and replace such furnishings and equipment as the Community Board shall determine proper. 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 the Declarant, or by a Merchant Builder with the written consent of Declarant, with a Governmental Agency pertaining to the Community Common Area or the Common Maintenance Area.  The Community Association may prepare or cause to be prepared and implemented, on an annual basis, a comprehensive maintenance program for maintenance of the Community Common Area and the Common Maintenance Area, which maintenance program shall be subject to review and approval by the Community Board.

 

 

                   4.4.9              Cost Center Administration.  The Community Association shall administer and perform any obligations associated with any Cost Centers created pursuant to this Declaration.

 

 

                   4.4.10          Insurance.  The Community Association shall contract for and maintain insurance in accordance with the requirements set forth in the Article hereof entitled "Insurance."

 

 

 

                   4.4.11          Liens and Charges.  The Community Association shall pay any amount necessary to discharge any lien or encumbrance upon the Community Common Area, or any other property or interest of the Community Association.  Where one or more Owners are jointly responsible for the existence of such lien, they shall be jointly and severally liable for the cost of discharging it, and any costs incurred by the Community Association by reason of said lien or liens shall be specially assessed to said Owner(s).

 

 

                   4.4.12          Reserves.  The Community Association shall establish and maintain a working capital and contingency fund as required under the Community Governing Documents.

 

 

         4.5              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 therefore, and the following activities shall not constitute Permitted Functions of the Community Association. 

 

 

                   4.5.1              Property Manager.  The Community Association shall not (a) hire, as a professional manager, any full time employees for the Covered Property; or (b) rent, lease or otherwise furnish offices, personnel or other facilities, whether located within the Covered Property or off-site or utilize any Community Common Area and Common Maintenance Area as office space or other facilities for an "on-site" manager ("Manager") or for performing other Community Common Area and Common Maintenance Area day-to-day administrative activities.  The Manager for the Community Association shall at all times be a professional manager employed as an independent contractor officer at its own place of business. Nothing contained herein shall limit the Community Association from hiring other employees for the Covered Property.

 

 

                   4.5.2              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 Community Assessments have commenced.

 

 

                   4.5.3              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 a Permitted Function.

 

 

                   4.5.4              Subassociation or Cost Center.  For so long as Declarant has the rights under Sections 3.2.3 and 3.3 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 or eliminate a Cost Center, 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.

 

 

 

                   4.5.5              Mortgagee Consents.  For so long as Declarant has the voting rights under Sections 3.2.3 and 3.3 of this Declaration, the Community Association may not, without the prior written consent of Declarant, take any action listed in Section 15.10 of this Declaration for which the consent of Owners or First Mortgagees is required.

 

 

 

                   4.5.6              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 13 or elsewhere in this Declaration, 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.

 

 

                   4.5.7              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 of the Voting Power during the time the three-class voting structure set forth in Section 3.2 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.

 

 

 

                            (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 Common Area and Common Maintenance Area 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 Common Area and Common Maintenance Area.  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 Common Area and Common Maintenance Area or 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)               A contract for a term not to exceed five (5) 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; and

 

 

 

                                     (iv)               Agreements for television services, satellite dish services, communication services, or other technology services and equipment with terms not in excess of ten (10) years, provided that if Declarant has a direct or indirect ownership interest in the supplier of such services or equipment equal to or greater than ten percent (10%), then agreements with such supplier shall provide that such services or equipment must be supplied at rates which are no more than the rates charged for comparable services or equipment supplied by providers thereof which are not affiliated with Declarant and are capable of providing such services or equipment to the Covered Property.

 

 

 

 

                   4.5.8              Compensation.  The Community Association shall not pay compensation to Community Directors or officers of the Community Association for services performed in the conduct of the Community Association's business; provided, however, that the Community Board may cause a Community Director or officer or a member of the Architectural Committee to be reimbursed for expenses approved by the Community Board and incurred in carrying on the business of the Community Association.  Nothing contained herein shall limit the Association from paying compensation to any members of any committees appointed by the Board or consultants to such committees, including the Architectural Committee.

 

 

 

         4.6              Additional Provisions.  Notwithstanding the provisions of this Declaration, by accepting a deed for a portion of the Covered Property, the Community Association and the Owners acknowledge and agree that there may be certain laws and regulations that may be applicable to the operation of the Community Association and the Covered Property by the Community Association, including, without limitation, the Davis-Stirling Common Interest Development Act of Section 1350 et seq. of the California Civil Code and the Community Association and Owners shall comply with such provisions to the extent required by such laws and regulations.

 

 

 

                                                                   ARTICLE 5

 

 

 

                                      COMMUNITY FUNDS AND ASSESSMENTS

 

 

 

         5.1              Creation of the Lien and Personal Obligation of Assessments.  The Declarant, for each Lot owned by it, hereby covenants and agrees to pay, and each Owner, by acceptance of a deed or other conveyance creating in such Owner the interest required to be deemed an Owner, whether or not it shall be so expressed in any such deed or other conveyance, is deemed to covenant and agree to pay Community Assessments to the Community Association in accordance with the requirements of the Community Governing Documents, including, without limitation, the following: Regular Assessments, Special Assessments, Capital Improvement Assessments, Reconstruction Assessments and Enforcement Assessments.  Such Community Assessments shall be fixed, established and collected from time to time as hereinafter provided.  Such Community Assessments together with such interest, late charges and costs and reasonable attorneys' fees, shall be the debt of and personal obligation of the Owner of such Lot at the time when the Community Assessment fell due.  The personal obligation for such Community Assessments shall not pass to the successors in title of an Owner unless expressly assumed by such successors.  Each such Community Assessments, together with interest thereon, late charges, attorneys' fees and court costs, and other costs of collection thereof, as hereinafter provided, shall, also upon recordation of a Notice of Delinquent Assessment in accordance with the provisions of the Section of this Article entitled "Foreclosure of Lien" shall be a lien upon the Lot against which each such Community Assessment is made.

 

 

 

         5.2              Community Association Funds.  The Community Association shall establish and maintain a maintenance and operation fund ("Maintenance and Operation Fund") into which the Community Board shall deposit Regular Assessments.  The Community Association shall also establish and maintain such other funds including a reserve fund ("Reserve Fund") and capital improvement fund ("Capital Improvement Fund") as the Community Board deems appropriate for deposit and disbursement of other Community Assessments as the Community Board may from time to time establish.  All of said funds are generally referred to herein as the Community Funds.  The Community Board shall establish and collect all Community Assessments and, where necessary, enforce the liens therefore as provided for in this Article.

 

 

 

         5.3              Purpose of Community Assessments.  The Community Assessments levied by the Community Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Covered Property, for the improvement and maintenance of the Community Common Area and Common Maintenance Area and any other areas which the Community Association is obligated to maintain under this Declaration, to reimburse the Community Association for the costs incurred in bringing an Owner into compliance with the Community Governing Documents and to discharge any other obligations under the 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 Community 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 DRE 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 Section 5.5 below. 

 

 

 

                   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 cost of any construction or replacement (other than due to destruction) of a described Capital Improvement upon the Community Common Area 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 Common Area 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.  In the event 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 a hearing as required by Section 4.3.12 of this Declaration, the Owner fails to cure or continues such violation, the Community Association may impose an additional fine each time the violation is repeated and 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.  A hearing committee may be established by the Community Board to administer the foregoing.

 

 

 

                   5.4.5              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."

 

 

 

                  5.4.6              Formation of Cost Centers.  Subject to the provisions of Sections 4.3.14 and 4.5.4 of this Declaration, the Community Association may establish additional Cost Centers with respect to portions of the Covered Property which directly receive a special benefit from portions of the Community Common Area or Common Maintenance Area and may levy Regular Assessments with a component for such Cost Center as provided in Section 5.7 below, upon a vote by a majority of the Owners of the Lots benefited by the proposed Cost Center.  Upon its approval, the Cost Center and Cost Center Maintenance Area shall be described in a Supplementary Declaration recorded by the Community Association.  From and after the formation of such a Cost Center, it shall be administered by the Community Association in the same manner as all other Cost Centers provided for in this Declaration.  Nothing contained herein shall give the Community Association any rights to approve Cost Centers established by the Declarant upon the recordation of this Declaration or the recordation of a Supplementary Declaration.

 

 

         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 Section 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 Section 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 Cost Center Assessment Component as described in Section 5.7.2 below or the aggregate of both such amounts) nor 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 Cost Center, to the Common Expenses of a Cost Center), 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 Chapter 5 (commencing with Section 7510) of Part 3 of Division 2 of Title I of the California Corporations Code and Section 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 Cost Center Assessment Component, 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 Cost Center shall be required for increases to the Regular 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 Cost Center. 

 

 

 

                   5.5.1              Quorum.  For purposes of this Section, "quorum" means Owners holding more than fifty percent (50%) of the Voting Power.

 

 

 

                   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 Covered Property or any part of it for which the Community Association is responsible where a threat to personal safety in the Covered Property is discovered; or

 

 

                           (c)               An extraordinary expense necessary to repair or maintain the Covered Property 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  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 by 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.

 

 

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.  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              Increases in Assessments Based Upon Level Assessment.  Declarant has submitted to the DRE a budget which provides, in certain Phases, for a certain level of Regular Assessments over the course of the development of the Covered Property ("DRE Approved Budget").  Therefore, notwithstanding any limitations contained in this Declaration to the contrary, in the event that the amount of the Regular Assessments is greater than the amounts permitted to be increased by this Declaration without a vote of the Members 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 any amount which is within the level assessments as approved by the DRE Approved Budget. 

 

 

 

         5.7              Allocation of Community Assessments to Lots.  The Community Assessments shall be allocated to each assessable Lot as set forth below.

 

 

 

                   5.7.1              General Assessment Component.  The Regular Assessments exclusive of the Common Expenses included within the Cost Center Budget shall be allocated among the Owners and their respective Lots as provided in the Base Budget ("General Assessment Component").

 

 

                   5.7.2              Cost Center Assessment Component.  The portion of the Regular Assessments budgeted exclusively to any particular Cost Center in the Cost Center Budget shall be assessed solely to the Owners of Lots within the applicable Cost Center, at a uniform rate determined by dividing the amount of the assessment by the total number of Lots within the Cost Center subject to such assessment ("Cost Center Assessment Component").  The Cost Center Assessment Component may include, without limitation, estimated or actual costs and expenses incurred by the Community Association for administering and maintaining the Cost Center Maintenance Areas, obtaining and maintaining insurance coverage related to the Cost Center Maintenance Areas, providing utility service to the Cost Center Maintenance Areas and funding reasonable reserves for the repair or replacement of the Cost Center Maintenance Areas.  The Community Association shall provide for a separate accounting for the funds which are collected and expended on behalf of a Cost Center.  The Community Association shall also provide for a reserve study and the annual review and disclosure of the reserves applicable to a Cost Center to the same extent required for the other budgetary components.

 

 

 

                   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 shall be levied directly to the individual Lots, in a manner consistent with the provisions of Sections 5.4.4 of this Declaration.

 

 

 

         5.8              Levy of Community Assessments.  Community Assessments shall be levied and commence according to the procedures set forth below.

 

 

 

                   5.8.1              Commencement of Regular Assessments.  Annual Regular Assessments shall commence as to all Lots located within a Phase of the Covered Property on the first day of the first month following the closing of the first sale of any such Lot located within a Phase of said Covered Property to an Owner, other than Declarant or a Merchant Builder.  As to any land which is thereafter annexed into the Covered Property, Regular Assessments shall commence as to all of the Lots in a Phase which is annexed upon the first day of the first month following the closing of the sale of the first Lot in such Phase of the annexed property to an Owner, other than Declarant or a Merchant Builder. 

 

 

 

                   5.8.2              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.

 

 

 

                   5.8.3              Levy of Other Community Assessments.  All other Community Assessments shall be fixed at such times and in such amounts as the Community Board deems appropriate, and the Owners shall be given reasonable notice thereof.  The due dates for such other Community Assessments shall be established by the Community Board.

 

 

 

                   5.8.4              Initial Capital Contribution.  To insure adequate funds to meet the initial expenses of the Community Association, upon the initial sale of each Lot to an Owner, other than Declarant or a Merchant Builder, such Owner shall pay to the Community Association an amount equal to One Hundred Dollars ($100.00).  Each Merchant Builder shall require that this amount be deposited by each Owner into the purchase and sale escrow established by the Merchant Builder and Owner and disbursed therefrom to the Community Association.  The amounts set forth herein are not to be considered in lieu of annual Regular Assessments or any other Community Assessments levied by the Community Association.

 

 

 

                   5.8.5              Certificate of Payment.  The Community Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Community Association setting forth whether the Community Assessments on a specified Lot have been paid.  Such certificate shall be conclusive evidence of payment of any Community Assessment therein stated to have been paid.

 

 

 

         5.9              No Offsets.  All Community Assessments shall be payable in the amount specified by the particular Community Assessment, and no offset against such amount shall be permitted for any reason, including, without limitation, a claim that the Declarant or the Community Association is not properly exercising its duties or powers as provided for in this Declaration.

 

 

 

         5.10          Community Assessment Rolls.  The Community Association may maintain and revise annually, an assessment roll for every Lot within the Covered Property reflecting the name and address of each Owner, and other data necessary to levy the Community Assessments.  The Community Association is not required to make such assessment roll available for distribution to Members.

 

 

 

         5.11                   Transfer of Covered Property.  After transfer or sale of a Lot in the Covered Property, the transferring or selling Owner or Owners shall not be liable for any Community Assessment levied on the Lot after the date of such transfer of ownership.  The selling Owner shall remain personally responsible for all Community Assessments and charges levied on the Lot prior to any such transfer unless the personal obligation is expressly assumed by the transferee.

 

 

 

         5.12          Collection of Assessments; Liens.

 

 

 

                   5.12.1          Right to Enforce.  The right to collect and enforce Community 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 Community Assessments, provided for in this Declaration by commencement and maintenance of a suit at law or in equity, or the Community Board may fore–close by judicial proceedings or through the exercise of the power of sale pursuant to Section 5.12.3 enforce the lien rights created.  Suit to recover a money judgment for unpaid Community Assessments, together with all other Additional Charges described in Section 5.13 shall be maintainable without fore–closing 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 Common Area and Common Maintenance Area –for which the Member or the Member's guests or tenants were responsible which may become a lien on the Owner's 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 Lot into compliance with the Community Governing Documents may not be characterized nor treated as an Community Assessment, which may become a lien against the Member's Lot enforceable by a sale of the interest hereunder.  The limitation in the preceding sentence, however, does not apply to any Additional Charges.

 

 

 

                   5.12.2          Creation of Lien.  If there is a delinquency in the payment of any Community Assessment, or installment on a Lot, any amounts that are delinquent, together with the late charge described in that Section, interest at the rate permitted in California Civil Code Section 1366, or any successor statute or law, 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 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 or any successor statute or law.  After its recordation, the Notice of Delinquent Assessment shall be mailed to all Owners of record of the applicable Lot as provided in California Civil Code Section 1367 or any successor statute or law.  The Notice of Delinquent Assessment may not be recorded unless and until the Community Board or its authorized representative has sent to the delinquent Owner or Owners, not less than fifteen (15) days before the recordation of the Notice of Delinquent Assessment, a written notice of default and a demand for payment by certified mail, which notice shall contain all of the information specified in California Civil Code Section 1367, or any successor statute or law.

 

 

 

                   5.12.3          Notice of Default; Foreclosure.  The Community Board or its authorized representative can record a notice of default and can cause the 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, or through judicial foreclosure, and as provided in California Civil Code Section 1367 or any successor statute or law.  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.  If a delinquency is cured before sale, or before completing a judicial foreclosure, the Community Board or its authorized representative, shall cause to be recorded in the office of the County Recorder a certificate setting forth the satisfaction of such claim and release of such lien upon payment of actual expenses incurred, including reasonable attorneys' fees by any delinquent Owner.  Any payments made on delinquent Assessments shall be applied in accordance with California Civil Code Section 1367 or any successor statute or law.  On becoming delinquent in the payment of any Community Assessments, or installments thereof, each delinquent Owner shall be deemed to have absolutely assigned all rent, issues and profits of his or her 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 Lot at fore–closure sale and to acquire, hold, lease, mortgage and convey the Lot and vote as an Owner of the Lot.

 

 

 

                   5.12.4          Payments Under Protest.  Notwithstanding any other provisions set forth in this Section 5.12, 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, or any successor statutes or laws, as provided in this Declaration.

 

 

 

                   5.12.5          Cure of Default.  Upon the timely curing of any default for which a Notice of Delinquent Assessment was recorded by the Community Association, officers of the Community Association or a managing agent appointed by the Community Board are hereby authorized to file or record, as the case may be, an appropriate release of such notice, upon payment by the defaulting Owner of a reasonable fee, to be determined by the Community Association to cover the cost of preparing and filing or recording such release together with a payment of such other costs, interest or fees as shall have been incurred.

 

 

 

                   5.12.6          Non-Exclusive Remedy.  The Community Assessment liens and the foreclosure and sale thereunder shall be in addition to and not in substitution of all other rights and remedies which the Community Association and its assigns may have hereunder and by law, including a suit to recover a money judgment for unpaid Community Assessments as above provided.

 

 

 

                   5.12.7          Delegation of Authority.  Each Owner, with the exception of the Secretary, U.S. Department of Veteran Affairs Administrator of Veteran Affairs, an officer of the United States, hereby vests in and irrevocably delegates to the Community Board or its duly authorized representatives the right and power to bring all actions at law or equity, and lien foreclosures, whether judicially or by power of sale, or otherwise, against any Member for the collection of delinquent Community Assessments in accordance herewith, and hereby expressly waives any objection to the enforcement in accordance with this Declaration of the obligation to pay Community Assessments as set forth in this Declaration.

 

 

        

         5.13          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 Community 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.  Additional Charges shall include, but not be limited to, the following:

 

 

 

                   5.13.1          Attorneys' Fees.  Reasonable attorneys' fees and costs incurred in the event an attorney(s) is employed to collect any Community Assessment, or sum due, whether by suit or otherwise;

 

 

 

                   5.13.2          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 Community Assessment, or other sum is not paid when due or within any "grace" period established by law;

 

 

 

                   5.13.3          Costs of Suit.  Costs of suit and court costs incurred as are allowed by the court;

 

 

 

                   5.13.4          Interest.  Interest to the extent permitted by law; and

 

 

 

                   5.13.5          Other.  Any such other additional costs that the Community Association may incur in the process of collecting delinquent Assessments or sums.

 

 

 

         5.14          Subordination of the Lien to First Mortgages.  The lien of the Community Assessments provided for herein shall be subordinate to the lien of any recorded First Mortgage.  The sale or transfer of any Lot shall not affect any Community Assessment lien.  However, the sale or transfer of any such Lot which is subject to any recorded First Mortgage pursuant to a decree of foreclosure, or a sale under power of sale under such First Mortgage shall extinguish the lien of such Community Assessments as to payments thereof which become due prior to such sale or transfer.  Pursuant to the provisions hereof, liens shall be created on the interest of the purchaser at such foreclosure sale, to secure all Community Assessments assessed hereunder to such purchaser, as an Owner after the date of such foreclosure sale, which lien shall have the same effect and be enforced in the same manner as provided herein.

 

 

 

 

                                                                 ARTICLE 6

 

 

                                                           USE RESTRICTIONS

 

 

 

         6.1              Permitted Uses and Limitations.  The following use restrictions shall apply in the Covered Property.

 

 

 

                   6.1.1              Residential Use.  All Lots shall be known and described as Lots and shall be used for no purpose other than residential purposes.  No Lot shall be used or caused to be used or allowed or authorized to be used in any way, directly or indirectly, for any business, commercial, manufacturing, mercantile, storage, vending or other non-residential purposes; except Lots may be used for model home sites, construction offices, a design center, and display and sales office purposes during the construction and sales period by Declarant 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 Lot as a residence, and (iii) the patrons or clientele of such professional or administrative occupation do not regularly visit or conduct business on the Lot.  In addition to the foregoing, home child care centers shall be permitted only to the extent that they are of a type regulated by the City and are operated in accordance with the Encinitas Municipal Code and all other applicable legal and zoning requirements and licensing regulations, subject to any provisions under applicable law with respect to restrictions on the operation of home child care centers, including, but not limited to, "family day care homes" under California Health and Safety Code Sections 1597.40 and 1596.78 or any successor statute or laws.  Nothing contained herein shall limit the rights of Declarant or any Merchant Builder set forth in Article 13 of this Declaration.

 

 

 

                   6.1.2              Rental of Dwelling.  An Owner shall be entitled to rent the Dwelling situated on the Owner's Lot, subject to the restrictions contained in this Declaration, including, but not limited to, the Section above entitled "Residential Use".  Any rental or leasing agreement shall be in writing, shall provide that the lease or rental is subject to the Community Governing Documents and shall provide that any failure to comply with any provisions of the Community Governing Documents shall be a default under the terms of the rental or lease agreement.  No Owner may lease such Owner's Lot or Improvements thereon for hotel, motel or transient purposes.  Any lease which is either for a period of fewer than thirty (30) days or pursuant to which the lessor provides any services normally associated with a hotel, shall be deemed to be for transient or hotel purposes.  Any Owner who shall lease his or her Dwelling shall be responsible for assuring compliance by such Owner's lessee of the Community Governing Documents.

 

 

 

                   6.1.3              No Time-Share Projects.  No Lot shall be divided into a time-share estate or time-share use as defined in California Business and Professions Code Section 11003.5 without the prior written approval of the Board.

 

 

 

                   6.1.4              Signs.  All signs shall be in conformance with the Architectural Standards.  No sign or billboard of any kind shall be displayed to the public view on any Lot or Community Common Area with the following exceptions:

 

 

 

                            (a)               signs as may be required by legal proceedings, or the prohibition of which is precluded by law;

 

 

 

                            (b)               signs as may be used by Declarant (or any Merchant Builder with the written consent of Declarant) or its sales agents in connection with the development of the Encinitas Ranch Community and the sale and marketing of the Lots or to designate facilities or future facilities within any portion of the Covered Property;

 

 

 

                            (c)               signs on the Community Common Area which Declarant (or any Merchant Builder with Declarant's written consent) deems necessary for the construction of any Improvements and identification signs regarding financing and construction;

 

 

 

                            (d)               signs on the Community Common Area as may be required for traffic control and regulation of open areas within the Encinitas Ranch Community; and

 

 

 

                            (e)                identification signs on the Community Common Area as may be deemed appropriate by the Community Board to designate facilities or future facilities within the Covered Property.

 

 

Declarant may permit Merchant Builders to place such signs on the Community Common Area, as provided for herein, for the same purpose as Declarant deems appropriate, provided such signs have been approved by Declarant.  Declarant's rights to so establish signs shall be exercised for a reasonable period of time in conjunction with Declarant's and the Merchant Builder's development of the Covered Property.  Notwithstanding the foregoing, in accordance with the provisions of California Civil Code Section 713, or any successor law or statute, an Owner may display on the Owner's Lot not more than one (1) "for sale" or "for lease" sign per Lot so long as such sign shall comply with any standards promulgated by the Community Board or Architectural Committee as to the size, color, shape or other qualifications for permitted signs.

 

 

 

                   6.1.5              Nuisance; Hazards and Waste.  No noxious or unreasonably offensive trades or activities shall be carried on upon any Lot or Community Common Area or any part of the Covered Property and nothing shall be done thereon which may be, or may become an annoyance, nuisance, disturbance or unreasonable embarrassment to the Covered Property, or which shall, in any way, interfere with the quiet enjoyment of each of the Owners of such Owner's respective Dwelling, or which shall, in any way, increase the rate of insurance, or which constitutes a violation of any law, ordinance or regulation, now or hereafter in effect, imposed by any Governmental Agency having jurisdiction over the Covered Property.

 

 

 

                   6.1.6              No Temporary Structures.  Except for such temporary structures or items as may placed within the Encinitas Ranch Community (i) by Declarant in connection with development, sale or leasing of Improvements within the Encinitas Ranch Community, (ii) by a Merchant Builder in connection with the development, sale or leasing of Lots or Dwellings in conformity with this Declaration, and (iii) as may be reasonably required in connection with the construction or reconstruction of a Dwelling or other Improvement on a single family Lot by an individual Owner pursuant to the approval of the Architectural Committee, no temporary buildings, trailers or structures shall be placed on any portion of the Covered Property.

 

 

 

                   6.1.7              Garages/Vehicular Restrictions.  

 

                            (a)               Garages.  Except for a model homes used by Declarant or a Merchant Builder, or if approved by the Architectural Committee, no Owner shall convert his or her garage to any use which prevents its use for vehicular parking of the number of automotive vehicles owned by the Owner.  Each occupant of a Lot shall park his or her vehicles in his or her garage and parking by occupants of a Lot shall be allowed on driveways only to the extent that such occupants possess more vehicles than can be accommodated in the garage.  Nothing stated in this Section is intended to prevent Declarant or with the consent of Declarant, a Merchant Builder from offering a garage conversion program (e.g., converting a three-car garage into a two-car garage) with respect to any Lot built and sold by Declarant or with the consent of Declarant, a Merchant Builder.  Garage doors shall remain closed at all times except to allow entry or exit of a vehicle or person to or from the garage.

 

                           (b)               Vehicular Restrictions.  No dune buggy, boat, trailer, recreational vehicle, mobile home, motor home, van which weighs more than 10,000 pounds, camper shell whether detached from a vehicle or mounted on a vehicle, nor truck which (i) weighs more than 10,000 pounds or (ii) has a mounted camper shell which protrudes from the truck from either side or from beyond the rear gate or above the cab ceiling, shall be parked anywhere in the Encinitas Ranch Community except outside of public view unless the Architectural Standards provide otherwise.  Commercial vehicles shall be permitted within the Encinitas Ranch Community if parked within garages or if used for construction purposes (except that nothing contained herein shall limit any construction vehicles of Declarant or any Merchant Builder), for purposes of making deliveries and similar purposes.  No dismantled or wrecked vehicle or equipment shall be parked, stored, or deposited in the Encinitas Ranch Community and no vehicle shall be repaired in the Encinitas Ranch Community within public view.  No noisy or smoky vehicles or off-road unlicensed vehicles shall be operated within the Encinitas Ranch Community.

 

                            (c)               Parking.  No Owner or occupant of a Lot shall park his or her vehicle in any area where parking is disallowed by the City.  Any Invitee of an Owner of a Lot shall park his or her vehicle in the driveway of that Owner or occupant or on a street within the Encinitas Ranch Community that is designated for parking by the City.

 

 

                   6.1.8              Animals.  No animals of any kind shall be raised, bred or kept on the Covered Property except that a reasonable number of dogs, cats or other household pets may be kept on the Lots, provided that they are not kept, bred or maintained for any commercial purpose, nor in violation of any other provision of this Declaration.  The decision of the Board shall be binding as to whether the number of animals being kept by an Owner are reasonable, which determination may take into account whether the animals are imposing a nuisance or unreasonable annoyance to other Owners.  In no event shall any Owners keep or breed any pit bulls or other dogs deemed by the Board to constitute a danger to other Owners or their Invitees.  Animals belonging to Owners or their Invitees within the covered Property must be either kept within an enclosure, an enclosed yard or a leash being held by an individual capable of controlling the animal.  Each Owner shall be liable to each and all remaining Owners and their Invitees for any unreasonable noise or damage to personal property caused by any animals brought or kept upon a Lot by the Owner or by such Owner's Invitees; and it shall be the duty and responsibility of each Owner to immediately clean up any waste from his or her animals.

 

 

 

                   6.1.9              Oil, Water and Mineral Operations.  No tools or equipment and no derrick or other structure designed for use in boring for oil, gas, or other kindred substances, or designed for use in boring for water, or designed for use in any mining operation or exploration shall hereafter be erected or placed upon the Real Property; and no Owner of any Lot shall ever consent to the use of the surface of the land comprising his or her Lot, or any portion of the subsurface thereof, by any lessee under any lease to be negotiated or under any lease now of record affecting any of said Lot, which lease pertains to the exploration, mining or operating for oil, gas or other hydrocarbon substances and the taking, storing, or removing and disposition of same.  No portion of the Covered Property shall be used in any manner to remove any water, oil or other hydrocarbons minerals of any kind, ground earth or any earth substance of any kind.

 

 

 

                   6.1.10          Grading and Drainage.  There shall be no alteration of land forms in, or installation or construction of any structures or Improvements of any kind in or on the Community Common Area or any changes or alterations to drainage or drainage patterns, erosion control, desiltation (and any equipment to monitor desiltation) or other improvements in the Covered Property or to the exterior appearance of any improvements within the Community Common Area without the prior written approval of the Architectural Committee.

 

 

 

                   6.1.11          Unsightly Items.  All weeds, rubbish, debris, or unsightly materials or objects of any kind shall be regularly removed from the Lots and shall not be allowed to accumulate thereon.  All refuse containers, woodpiles, storage areas, machinery and equipment shall be prohibited upon any Lot unless obscured from view of adjoining streets, Lots, alleys or Community Common Area nearest such portion of the Lot from a height of six (6) feet or less and shall comply with any restrictions or standards promulgated by the Community Board or an Architectural Committee. 

 

 

 

                   6.1.12          Outside Installations.  No projections of any type may be placed or permitted to remain above the roof of any building within the Covered Property, except one or more chimneys and vent stacks originally installed, if at all, by Declarant or a Merchant Builder.  No patio cover, wiring, or air conditioning fixture, water softeners, or other devices may be installed on the exterior of a Dwelling or be allowed to protrude through the walls or roof to the Dwelling (with the exception of those items installed during the original construction of the Dwelling) unless the Architectural Committee’s prior written approval is obtained.

 

 

 

                   6.1.13          Open Space Areas.  Easements may be established (e.g., by final subdivision maps covering portions of the Covered Property) for open space areas.  Each Owner, and the Community Association shall at all times comply with the applicable requirements and restrictions so imposed, including, but not limited to, restrictions on development in buffer/open space easements.  For example, no private development shall be allowed which is inconsistent with any open space restriction which is dedicated to the City on any final subdivision map nor any open space lot owned by the City except as may be specifically permitted by the City. 

 

 

 

                   6.1.14          Brush Management Areas.  Each Owner is hereby advised that portions of the Encinitas Ranch Community including Lots are adjacent to and included in areas designated by the City of Encinitas to be included in a Brush Management Program (the "Brush Management Program").  The Brush Management Program has been established in accordance with the California wildlife fire danger rating system.  The Brush Management Program sets forth special maintenance obligations and includes restrictions on the Improvements (including landscaping) on the portion of an Owner's Lot which is subject to the Brush Management Program.  The Community Association shall maintain a copy of the Brush Management Program for each Owner and it shall be the obligation of the Owner to determine whether any portions of an Owner's Lot is subject to a Brush Management Program.  Each Owner is further advised to contact the Fire Department of the City of Encinitas and/or County of San Diego to determine the obligations of the Owner with regard to the Brush Management Program.

 

 

 

                  6.1.15          Burning.  There shall be no exterior fires whatsoever except barbeque fires and/or exterior fireplace fires located only upon the Owner's Lot and contained within receptacles designed for such purposes.  In addition to barbeques, the Declarant and/or Owner may construct an exterior fireplace on a Lot, provided that the construction and operation of same comply with City and all other governmental ordinances, regulations and permits, including fire safety regulations and are approved by the Architectural Committee.  Otherwise, outside fires are not permitted unless prior written approval is given by the Community Association and such Owner acts in compliance with all local governmental fire safety and permit regulations.  No Owner shall permit any condition to exist on his or her Lot, including, without limitation, trash piles or weeds, which creates a fire hazard or is in violation of local fire regulations and fuel modification and brush management requirements.

 

 

 

                   6.1.16          Window Coverings.  Unless window covers required by this Section are already in place, each Owner shall, within one hundred and twenty (120) days after close of escrow for his or her Lot, install permanent window coverings which cover those windows of his or her residence which are visible from any public or private street.  The Architectural Committee may specify certain windows which are not subject to this requirement.  The exterior appearance of such window covering must be consistent with any requirements promulgated by the Architectural Committee and generally shall have a neutral exterior appearance.

 

 

 

                   6.1.17          Clothesline.  No clotheslines shall be placed, nor shall any clothes be hung in any manner whatsoever on any Lot in a location, including, but not limited to, the garage door, visible from a public street.

 

 

 

                   6.1.18          Flagpoles.  No flagpoles shall be placed or maintained on any Lot of the Common area without Architectural Committee approval.  Notwithstanding, the Declarant shall be exempt from this restriction as set forth in Article 13 hereof.

 

 

 

                   6.1.19          Basketball Hoops and Other Fixed Sports Apparatus.  No basketball standards or fixed sports or play apparatus shall be installed or attached to the front of any Dwelling or garage or be erected in any yard without the prior approval of the Architectural Committee.  Any portable basketball standards shall be subject to the Community Association Rules and the Architectural Standards. 

 

 

 

                   6.1.20          Antennae and Satellite Dishes.  No television or radio poles, antennae, satellite dishes, or technological evolutions of the foregoing, other than those originally installed by Declarant or any Merchant Builder approved by the Community Board or the Architectural Committee appointed by the Community Board shall be constructed, erected or maintained on or within the Covered Property; provided, however, that the foregoing restriction shall not be construed to limit the installation or use of video or television antennas within the Covered Property, including a satellite dish (collectively, "Antenna"), except as otherwise prohibited or restricted by law, that is of a size and type consistent with the provisions of Section 1376 of the California Civil Code or any successor statute or law, so long as the following requirements are satisfied:  (a) the Owner has submitted an application and notice to the Community Board prior to the installation of the Antenna as provided in Article 7 of this Declaration; and (b) the Owner has obtained the approval of the Community Board for the installation of the Antenna.  The application for approval of an Antenna shall be processed by the Community Board in the same manner as any other architectural modification within the Covered Property.  Notwithstanding the foregoing, the Community Board shall not impose or enforce any restrictions on antennas that are inconsistent with the provisions of Section 207 of the Telecommunications Act of 1996 (47 U.S.C. Section 303) or the regulations promulgated thereunder or any successor statutes or laws.

 

 

 

                   6.1.21          Slope Maintenance Areas.  There are certain Slope Maintenance Areas situated on certain Lots within the Covered Property.  No structures, planting or other material shall be placed or permitted to remain along, under or upon, nor shall any act be committed or act or omission suffered to be committed with respect to Slope Maintenance Areas situated on any Lot which may damage or interfere with established slope ratios, create erosion or slide problems, or which may damage, obstruct, alter or retard the direction of the established drainage of water along, under, upon or within the Slope Maintenance Areas or the flow of water through drainage channels located along, under, upon or within a Slope Maintenance Area.

 

 

 

                   6.1.22          Entry Gates.  Declarant or upon the written consent of Declarant, a Merchant Builder shall have control over the entry gates of those Neighborhoods in the Encinitas Ranch Community with entry gates and Declarant or the Merchant Builder shall be responsible for the maintenance and repair of the entry gates until all sales of all Lots in the Encinitas Ranch Community have been completed or until Declarant, in its sole discretion, determines that the Community Association should take responsibility for control, maintenance and repair of some or all of the entry gates.  The Community Association's obligation shall commence immediately upon receipt of written notice from the Declarant identifying the entry gates to be thereafter controlled and maintained by the Community Association.  Notwithstanding who has responsibility for the entry gates, Declarant or a Merchant Builder shall be entitled to have the entry gates of a particular Neighborhood remain open during regular business hours in order to conduct sales in that Neighborhood.  If Declarant or a Merchant Builder is marketing Residences in another Neighborhood through the Model Homes of a different Neighborhood, then Declarant or such Merchant Builder shall be entitled to have the entry gates of such Neighborhood remain open during normal business hours to conduct sales in the other Neighborhood.

 

 

 

                   6.1.23          View Impairment.  There is no representation that any view exists from any Lot.  Each Owner, by accepting a deed to a Lot, acknowledges that grading of, construction on or installation of improvements, including landscaping, on other Lots within the Covered Property and on surrounding real property may impair whatever view may exist from the Owner's Lot and each Owner consents to such impairment and waives any claim for view impairment.  Each Owner and the Community Association, by accepting a deed to a Lot or any Community Common Area and Common Maintenance Area, acknowledges that any construction or installation by Declarant or a Merchant Builder or by other Owners following Architectural Committee approval as provided in Article 7 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.

 

 

 

                   6.1.24          Public Trails.  A public trail shall be constructed within certain Neighborhoods in a location and based on a design approved by the City in connection with the overall development of the Encinitas Ranch Community.  Declarant has dedicated to the City, a public access easement over the public trail and the public trail shall be subject to the right of the public to use the public trail.  The public trail shall be limited for use by pedestrians and bicyclists only.  No Owner shall obstruct pedestrian movement to, from and on the public trail.  No improvement, excavation, or work which in any way alters the public trail from its natural and existing state shall be constructed, erected, placed or maintained by any Owner.  The City shall be solely responsible for the maintenance of the public trail unless the City delegates responsibility for maintenance of the public trail to the Community Association.  The rights and obligations of the City and Declarant with respect to the public trail and the conditions of use, improvement and maintenance shall be set forth in each final subdivision map for a Neighborhood containing a public trail. 

 

 

 

                   6.1.25          Drainage.  Each Owner agrees for himself or herself and his or her successors and assigns that he or she will not in any way interfere with the natural or established drainage of water over, under or through his or her Lot from an adjoining or other Lot in the Covered Property, including run off from the roof of an adjoining Lot, and that he or she will make adequate provisions for proper drainage in the event the Association determines it is necessary to change the natural or established flow of water drainage over the Owner's Lot.  For the purposes hereof, "natural" drainage is defined as the drainage which would naturally occur at the time the overall approved grading plan of said Covered Property has been completed by the Declarant.  For the purposes hereof, "established" drainage is defined as the drainage which occurred or which would occur at the time the overall grading of the Covered Property, including the finish grading of each Lot in the Covered Property, has been completed by the Declarant.  "Established" drainage shall also include any drainage system including but not limited to storm drains and swales constructed by Declarant.  In the event an Owner interferes with the natural or established drainage over his or her Lot or any other Lot or Common Area or if an Owner causes flooding or over saturation of any other Lot or Common Area, such Owner shall be deemed to be in violation of this Declaration.

 

 

 

                   6.1.26          No Obstructions.  There shall be no obstruction of any Community Common Area or Common Maintenance Area except as permitted herein or as provided by the Community Governing Documents.  Nothing shall be placed or stored in the Community Common Area, except as allowed by the express permission of the Community Board.

 

 

 

                   6.1.27          Rubbish.  No portion of the Covered Property shall be used or maintained a dumping ground for rubbish.  No oil or other refuse shall be allowed to enter storm drains.

 

 

 

                   6.1.28          Compliance With Laws, Etc.  No Owner shall permit anything to be done or kept in a Lot that violates any applicable laws, ordinances, statutes, rules or regulations of any Governmental Agency.

 

 

 

                   6.1.29          No Subdivision of Lots.  No Lot shall be further subdivided nor shall be less than all of any such Lot be conveyed by an Owner thereof.  No easement or other interest in a Lot shall be given without the prior written approval of the Architectural Committee.  The Owners, other than Declarant and the Merchant Builders of two (2) or more contiguous Lots may apply to the Architectural Committee for permission to use such Lots as the site for a single Dwelling.

 

 

 

                   6.1.30          No Alteration of Common Maintenance Area.  No Owner shall modify in any manner or install any new Improvements within any Common Maintenance Area located upon such Owner's Lot, without the written consent of the Community Association.

 

 

 

                   6.1.31          Entry Monument Areas.  Each Owner of a Lot containing an entry monument area shall not interfere with or obstruct the Community Association's right to maintain such Entry Monument Areas.

 

 

 

         6.2              Indemnification.  Each Owner shall be liable to the Community Association and remaining Owners for any damage to the Community Common Area or Common Maintenance Area that may be sustained by reason of the negligence or willful misconduct of that Owner or such Owner's Invitees.  Each Owner, by acceptance of his or her deed, agrees for such Owner, to indemnify each and every other Owner and to hold each Owner from, and defend such Owner against, any claim of any person for personal injury or property damage caused by the negligence or willful misconduct of such Owner or such Owner's Invitees, unless the injury or damage occurred by reason of the negligence or willful misconduct of any other Owner or the Community Association.  Upon demand by the Community Association, each Owner shall be responsible for the payment of any deductible amount payable under the Community Association's insurance policy as a result of any claims arising from the negligence or willful misconduct of such Owner or such Owner's Invitees.

 

 

 

 ARTICLE 7

 

 

ARCHITECTURAL CONTROL

 

 

 

            7.1 Scope. Except as otherwise provided in this Declaration, there shall be no excavation, construction, building, landscaping, development or other improvements in the Covered Property, including any change or alteration or exterior addition to any improvements situated within the Covered Property without compliance with this Article.

 

 

 

7.2         Exemptions. The exemptions described below are hereby granted.

 

 

 

                        7.2.1 Declarant Exemptions. The provisions of this Article 7 shall not apply to Declarant or any Improvements erected or installed by the Declarant on the Covered Property.

 

 

 

                        7.2.2 Merchant Builder Exemptions. The provisions of this Article 7 shall not apply to any Merchant Builder or any Improvements entered or installed by the Merchant Builder on the Covered Property.

 

 

 

 

                        7.2.3 Custom Lot Exemptions. The provisions of this Article 7 shall not apply to any Improvements to any custom Lots (“Exempt Custom Lots”) so long as the Improvements constructed by an Owner on such Custom Lots have been approved by the Declarant or a Merchant Builder. In the event review of the Improvements in the Custom Lots is performed by Declarant or any Merchant Builder, the Declarant or the Merchant Builder may assign its rights to review the improvements to the Architectural Committee established under this Declaration.

 

 

 

 

            7.3 Appointment of Architectural Committee. There shall be one (1) Architectural Committee for the Covered Property. The Architectural Committee shall consist of not less than three (3) persons who shall initially be appointed by the Declarant for a period of one (1) year after the original issuance of the Public Report for the first Phase, provided, however, that the number of members of the Architectural Committee may be increased by the Board to a greater odd number of members. Members of the Architectural Committee appointed by the Declarant need not be Members of the Community Association. After the expiration of such initial one year period, a majority of the members of the Architectural Committee may be appointed and replaced by Declarant until the earlier to occur of (a) the date that 477 Residences, representing ninety percent (90%) of the Residences proposed to be developed for Encinitas Ranch have been conveyed to Class A Members; or (b) on the fifth (5^tth) anniversary following the most recent conveyance to a Class A member of the first Lot in any Phase under authority of a Public Report. Thereafter, all members of the Committee shall be appointed or replaced by the Community Board.

 

 

 

                        7.3.1     Resignations. Any member or alternate member of the Architectural Committee may at any time resign from the Architectural Committee upon written notice delivered to the Community Board and/or Declarant, to the extent that Declarant, then has the right to appoint a majority of the Architectural Committee members.

 

 

 

                        7.3.2 Vacancies. Vacancies on an Architectural Committee, however caused, shall be filled by the Declarant or the Community Board, based on which such party appoint the Architectural Committee member whose position was vacated.

 

 

            7.4 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 terms hereof, to administer any Architectural Standards promulgated by the Community Board, 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 may establish reasonable

rules and may assess a fee for the submission of plans in connection with review of Plans and Specifications (as defined below) including, without limitation, the number of sets of plans to be submitted. 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. 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 such rules regarding submission of plans are complied with, such Plans and Specifications shall be deemed not submitted.

 

 

 

            7.5 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 Architectural Standards, if any, shall be kept.

 

 

 

            7.6 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 Architectural Standards.

 

 

 

 

            7.7 Effect of Architectural Committee. The establishment of the Architectural Committee and the procedures herein for architectural approval shall not be construed as changing any rights or restrictions upon Owners to maintain, repair, alter, modify or otherwise have control over the Owners’ respective Lot(s) and the Dwelling(s) and other Improvements situated thereon, as may otherwise be specified in the Community Governing Documents.

 

 

 

            7.8 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, but shall otherwise receive no compensation for services rendered.

 

 

 

            7.9 Approval and Conformity of Plans. The Community board shall, from time to time, adopt and promulgate Architectural Standards to be administered through the Architectural Committee. The failure of the Community Board to include any particular standards or guidelines in the Architectural 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 Architectural Standards shall include, among other things, those restrictions and limitations upon the Owners set forth below.

 

 

                        7.9.1 Limitations on Improvements. If the Architectural Standards so provide, 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 Dwelling, structure or other Improvement, unless plans and specifications therefore, showing the nature, design, kind, shape, height, width, color, material and location and any other information prescribed by the Architectural Standards (collectively “Plans and Specifications”) have been submitted to and approved by the Architectural Committee in accordance with the procedures set forth in the Architectural Standards.

 

 

 

                        7.9.2 Time Limitations. The architectural Standards may set forth time limitations for the completion of any Improvements for which approval is required pursuant to the Architectural Standards.

 

 

 

                        7.9.3 Conformity of Plans and Specifications. The Architectural Standards may require the conformity of completed Improvements to plans and specifications approved by the Architectural Committee and to the Architectural Standards. The Architectural Committee may, but shall not be required to, record a notice of noncompletion or noncompliance of any completed Improvements with the Architectural Standards, identifying the violating Lot and its Owner and specifying the reason for the notice executed by the Architectural Committee, in the Office of the County Recorder of San Diego County, California, and provide such notice to such Owner after the expiration of the time limitations established pursuant to Section 7.9.2 above or institute legal proceedings to enforce compliance or completion of the Improvements approved by the Architectural Committee.

 

 

 

                        7.9.4 Procedures. The Architectural Standards may impose procedures for the approval of plans and specifications, including requiring submission of preliminary plans and final plans and impose time periods for the submission of such plans.

 

 

                        7.9.5 Other Limitations. The Architectural 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, including, without limitation, the nature, kind, shape, height, materials, exterior color and surface and location of any Dwelling, or other Improvements of any kind.

 

 

 

                        7.9.6 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.

 

 

 

            7.10 Time Period for Review of Plans and Specifications. In the event the Architectural Committee fails to approve or disapprove such plans and specifications within forty-five (45) days after the same have been duly submitted in accordance with any rules regarding such submission adopted by the Architectural Committee, the Owner requesting said approval may submit a written notice to the Architectural Committee advising the Architectural Committee of its failure to act. If the Architectural Committee fails to approve or disapprove any such plans and specifications within fifteen (15) days after the receipt of said notice from such Owner, said plans shall be deemed approved.

 

 

 

            7.11 Appeal In the event plans and specifications submitted to the Architectural Committee are disapproved thereby, the Owner making such submission may appeal in writing to the Community Board. The written request must be received by the Community Board not more than thirty (30) days following the final decision of the Architectural Committee. The Community Board shall submit such request to the Architectural Committee for review, whose written recommendations will be submitted to the Community Board. Within forty-five (45) days following receipt of the request for appeal, the Community Board shall render its written decision. If the Community Board fails to render a decision within said forty-five (45) day period, the appealing Owner shall provide a written notice with respect thereto to the Community Board. If the Board fails to approve or disapprove any such plans and specifications within fifteen (15) days after the receipt of that notice from such Owner, said plans shall be deemed approved.

 

                                                                                                      

 

            7.12 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 be deemed to constitute a waiver of improvements or work do not so comply, in which waiver of any right to withhold approval of any similar plan, drawing, or specification or matter subsequently submitted for approval.

 

 

 

            7.13 Estoppel Certificate. Within forty-five (45) days after written demand is delivered to the Architectural Committee 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 Architectural Committee shall record an estoppel certificate, executed by any two (2) of its members, certifying (with respect to any Lot of said Owner) that as of the date thereof either: (a) all improvements made and other work done upon or within said Lot comply with the provisions of this Article 7, of (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 purchase from the Owner, or from anyone deriving any interest in said Lot through him, 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.

 

 

 

            7.14 Liability. Neither 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, (c) the development of any property within the Covered Property, or (d) the execution and filing of an estoppel certificate pursuant to the Section above entitled “Estoppel Certificate”, whether or not the facts therein are correct, provided that such member has acted in good faith on the basis of such information as may be possessed by him. Any plans and specifications submitted to the Architectural Committee are not approved by the Architectural Committee for engineering design, and by approving such plans and specifications neither the Architectural Committee, the members thereof, the Community Association, the Community Board, the Declarant nor any Merchant Builder assumes liability therefore or for any defect in any structure constructed from such plans and specifications. 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 any member of the Community Association with respect to any plans, drawings, specifications or any other proposal submitted to such Architectural Committee.

 

 

 

            7.15 Governmental Requirements. The application to and the approval of and by an Architectural Committee of any proposals, plans or other submittals shall no way be deemed to be in satisfaction of or in compliance with any building permit process or any other governmental requirements, the responsibility for which shall be solely with the respective Owner. In the event there is any conflict between the requirements or actions of the Architectural Committee and the mandatory regulations or ordnances of any Governmental Agency relating to the Covered Property, the governmental 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 to the government regulation or ordinance; provided, however, that if the government rules or regulations are less restrictive, the provisions of the Community Governing Documents shall nonetheless apply.

 

 

 

            7.16 Interpretation. All questions of interpretation or construction of any of the terms 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 involved.

 

            7.17 Amendments. Notwithstanding the Article hereof entitled “Amendments,” no amendment, verification or rescission of this Article may be had, nor shall Declarant, or any Merchant Builder if approved in writing by Declarant, be prohibited from completing the construction of the Covered Property for so long as Declarant or a Merchant Builder owns, or is the holder of a mortgage or deed of trust against, any portion of Encinitas Ranch, without the (i) written consent of Declarant, and the (ii) recording of such consent in the Office f the County Recorder.

 

 

 

 

ARTICLE 8

 

 

 

PROPERTY RIGHTS: COMMUNITY COMMON AREA AND

COMMON MAINTENANCE AREA AND EASEMENTS

 

 

 

            8.1 Ownership of Community Common Area and Common Maintenance Area. Fee title to the community Common Area and 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 on or before the first conveyance of fee title to a Lot in such phase of the Covered Property in accordance with a phasing plan to be approved by the DRE as such phasing plan may be modified from time to time, free and clear of all liens, except real property taxes, which may be due but are not delinquent, and shall be subject to any easements, covenants, conditions and reservations then of record, including those set forth on any subdivision map of which the Community Common Area or Common Maintenance area are a part and in this Declaration. The Community Association must accept the conveyance of the title to or a leasehold interest in any Community Common Area or easement right in any Common Maintenance Area when conveyed or established, and the Community Association shall execute each such deed or lease and an 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. Notwithstanding the foregoing, Declarant and a Merchant Builder (with Declarant’s written consent) and their respective agents and employees shall have the right to enter the Community Common Area to complete the construction of any landscaping or other Improvements to be installed on the Community Common Area and Common Maintenance Area. Such construction shall not 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. The interest of each Owner in the use and benefit of the Community Common Area and Common Maintenance Area shall be appurtenant to the Owner’s Lot subject to the Community Association’s right to exercise exclusive jurisdiction and control over the Community Common Area and Common Maintenance Area and the other rights and easements described in this Declaration. The nature, design, quantity, quality and all other attributes of the Community Common Area ad Common Maintenance Area, and the facilities and amenities thereon, shall be determined in Declarant’s sole and absolute discretion or by a Merchant Builder (with Declarant’s written consent).

 

 

 

            8.2 Permitted Uses of Community Common Area. The Community Common Area shall be used by the Owners and their Invitees for the common interest and benefit of the Covered Property; provided, however, that any portions of the Community Common Area shall also b e fore the use of members of the public if required by the requirements imposed by the City or other governmental Agencies having jurisdiction over the Covered property.

 

 

            8.3 Owners’ Right of Enjoyment in Community Common Area. Every Owner shall have a non-exclusive easement for use and enjoyment in and to the Community Common Area and such right shall be appurtenant to and shall pass with the title to every Lot, subject to the provisions set forth below.

 

 

 

                        8.3.1 Limits on Users of Community Common Area. Subject to the provisions of this Declaration restricting the Community Association from limiting the rights of the public to use areas within the Covered Property as required by the City, the Community Association shall have the right to (a) limit the use of portions of the Community Common Area to those Owners who own Lots or solely to those Owners who own lots within any applicable Cost Center, (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 Common Area. The Community Association may limit the number of guests, invitees, tenants, permittees or agents of Owners using the Community Common Area.

 

 

                        8.3.2 Restrict Use of Community Common Area. The Community Association shall have the right to limit and restrict the use of the Community Common Area and portions thereof, during specific times or on specific dates, and to prohibit all use and access to portions of the Community common Area which are Cost Center Maintenance Ares or as otherwise deemed necessary by the Community Board for health, safety, welfare, privacy or security purposes.

 

 

 

                        8.3.3 Suspend Right to Use Community Common Area. The Community Association shall have the right after Notice of Hearing, to temporarily suspend the right to use the facilities located on the Community Common Area by an Owner pursuant to the terms of the Community Governing Documents.

 

 

 

                        8.3.4 Dedication. The Community Association shall have the right to dedicate or transfer all or any part of the Community Common Area or any interest therein to any public agency, authority or utility or other entity, which dedication or transfer shall be subject to the provisions of this Declaration and such other conditions as the Community Association deems proper.

 

 

                        8.3.5 Easements. The Community Association shall have the right of Owners, as provided in Section 8.9.3 of this Declaration, to easements appurtenant to the Community Common Area and Common Maintenance Area for encroachments onto Lots for Improvements originally constructed by Declarant and/or Merchant Builders.

 

 

 

                        8.3.6 Establish Special Assessment Districts. The Community Association shall have the right to establish, in cooperation with the City, one or more special assessment districts for the 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, leas or otherwise transfer, subject to the provisions of this Declaration, all or any portion of the Community Common Area to said district.

 

 

 

                        8.3.7 Establish Open Space Easements. The Community Association shall have the right to establish such open space easements as are deemed necessary by the Community Association over portions of the Community Common Area.

 

 

 

                        8.3.8 Use by Public and Access by City. The Community Association shall have the right to allow use of the Community common Area by members of the public, pursuant to any requirements imposed by the City and shall not restrict such use if required by the City or other development approvals by the City pertaining to the Covered Property. In addition, the community Common Area is subject to certain access rights and easements in favor of the City and other Governmental Agencies for utilities, ingress and egress and law enforcement purposes.

 

 

                        8.3.9 Grant Access and Utility Easements. The Community Association shall have the right to grant maintenance, access and utility easements over the Community Common Area and Common Maintenance Area to others and to convey interests in the Community Common Area and Common Maintenance Area to others.

 

 

                        8.3.10 Easement To Declarant for Annexable Property. Declarant shall have and hereby expressly reserves for the benefit of Declarant and each of the Merchant Builders a non-exclusive easement over and across the Community Common Area and Common Maintenance Are and pathways, to the Annexable Property until all of said Annexable Property is annexed to the Covered Property and the Dwellings and other Improvements are constructed thereon.

 

 

                        8.3.11 Community Association Easement. The Community Association shall have an easement over the Common maintenance Area 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 Area.

 

 

                        8.3.12 Declaration Subject to Easements. Notwithstanding anything herein expressly or impliedly to the contrary, this Declaration shall be subject to all easements heretofore or hereafter granted by Declarant for the installation and maintenance of utilities and drainage facilities for the Covered Property.

 

 

                        8.3.13 Declarant’s Non-Exclusive Easements. Declarant, the Merchant Builders and each of their agents, employees and independent contractors shall have the easements described in Article 13 hereof entitled “Development rights”.

 

 

 

                        8.3.14 Easement for Declarant and Merchant Builders Over Community Common Area and Common Maintenance Area. Declarant hereby expressly reserves for the benefit of Declarant and all Merchant Builders for the benefit of their respective agents, subcontractors, Invitees, employees and contractors, and for the benefit of their respective successors and assigns, a nonexclusive easement appurtenant to the Community common Area and Common Maintenance Area, in, to, and over the Community Common Area and Common Maintenance Area for access, ingress, egress, use and enjoyment, in order to show the Encinitas Ranch Community 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 Encinitas Ranch. Such easement shall continue until the last close of escrow for the sale to a member of the home buying public of a Lot in Encinitas Ranch Community has occurred.

 

 

 

                        8.3.15 Access Restrictions. By acceptance of a grant deed for a Lot, each Owner acknowledges and agrees that notwithstanding the fact that certain entrances within the covered Property are attended, pursuant to the requirements of the City and the terms of easements granted to the City, the City and the public are entitled to ingress and egress by motor vehicles of the Community Common Are from dawn until dusk each day and it is contemplated that pedestrians and bicycles shall have unrestricted access through these areas twenty-four (24) hours per day. Pursuant to the requirements of the City, no physical barriers can be placed at the attended entrances within the Covered Property. The Community Association shall not restrict access to the public through the attended entrances as set forth herein or place any physical barriers at these entrances without the approval of the City.

 

 

            8.4 Alteration of Improvements on Community Common Area and Common Maintenance Area. Other than work performed by Declarant in connection with development of the Community Common Area, no work which in any way alters any portion of the Community Common Area and Common Maintenance Area from its natural o existing state after the date such Community Common Area and Common Maintenance Area was conveyed by Declarant or Merchant Builders to the Community Association shall be made or done except by the Community Association or its agent. The Community Association shall reconstruct, replace or refinish any improvement or portion thereof situated within the Community Common Area and Common Maintenance Area. Such work shall be in accordance with the original design, finish or standard of construction of such Improvement when such Community Common Area and Common Maintenance Area was conveyed by Declarant or Merchant Builder to the Community Association and which was approved by a majority of the Community Board and the City, or, in a different manner, if approved by the City or other Governmental Agency having jurisdiction thereof. Additionally, the Community Association shall maintain and landscape the Community Common Area and Common Maintenance Area, except for any assessment districts created pursuant to the provisions of the Section above entitled “Establish Special Assessment Districts”, in accordance with the provisions of the Article hereof entitled “Repair and Maintenance” and as the Community Association deems necessary or appropriate in furtherance of the purposes of the Community Association.

 

 

            8.5 Delegation of Use. Any Owner may delegate such Owner’s right of enjoyment of the Community Common Area to the members of the Owner’s family or tenants who reside on the Owner’s Lot, or to the Owner’s guests, subject to the Community Associations Rules adopted by the Community Board and the Community Governing Documents.

 

           

8.6   Commencement of Maintenance and Easement Rights. Notwithstanding any conveyance of

or transfer of an interest in the Community Common Area and Common Maintenance Area to the Community Association, the Community Association’s responsibility to maintain the Community Common Area and Common Maintenance Area located in any Phase shall not begin until (i) the Community Common Area and Common Maintenance Area is completed in accordance with the plans approved by the City and (ii) annual Community Assessments in such Phase have commenced; except that, if any Phase consists of only Community Common Area and Common Maintenance Area, the Community Association’s maintenance responsibility therefore shall commence on the later to occur of (a) completion of the Community Common Area and Common Maintenance Area in accordance with the plans therefore approved by the City, or (b) the first day of the month immediately following the month in which the deed or other document is recorded conveying such property in fee or easement to the Community Association. In the event that a maintenance agreement has been entered into by and between the Declarant or a Merchant Builder and the Community Association with respect to the maintenance of all or any portion of the Common Maintenance Area or Community Common Area, the maintenance obligations of the Community Association shall commence upon the expiration of the maintenance agreement or as otherwise provided in such maintenance agreement. If the contractors or subcontractors of Declarant or a Merchant Builder are contractually obligated to maintain the landscaping or other Improvements on the Community Common Area and Common Maintenance Area pursuant to a maintenance agreement or otherwise, the Community Association shall not interfere with the performance of such warranty or other contractual maintenance obligations. If the Community Common Area and Common Maintenance area or any other portion of the Community Common Area and Common Maintenance Area is dedicated to and accepted for maintenance y 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. In addition to the foregoing, neither the Owners (except for Declarant and the Merchant Builders) nor the Community Association shall have any of the easement rights described in this Declaration until such time as the Community Association’s maintenance obligations have become effective as provided in this Section. No Owner shall have any rights of ingress and egress over any portion of the Common Maintenance Area not located upon such Owner’s Lot, except as may be expressly granted in a Supplementary Declaration or separate easement document..

 

 

 

            8.7 Waiver of Use. No Owner may exempt himself or herself from liability for Community Assessments duly levied by the Community Association, nor release the Lot owned by such Owner from the liens and charges hereof, by waiver of the use and enjoyment of the Community Common Area, or the abandonment of such Owner’s Lot.

 

 

 

 

 

            8.8 Non-Severability. In no event shall an Owner sell or otherwise sever or separate the interest such Owner may have in the Community common Area or Common Maintenance Area from his other ownership interest in a Lot.

 

 

 

            8.9        Owners’ Easements and Encroachments. An Owner’s right to enjoyment of his Lot and the Community Common Area shall be subject to the easements and encroachments described below.

 

 

 

                        8.9.1 Utility Easements. Wherever sanitary sewer house connections, water house connections, electricity, gas, telephone and cable television lines or drainage facilities are installed within the Covered Property, the Owners of any Lot served by said connections, lines or facilities shall have the right, and there is hereby reserved to Declarant, together with the right o grant and transfer the same to Owners, an easement to the full extent necessary therefore, to enter upon the Lots owned by others, or to have utility companies enter upon the Lots owned by others, in or upon which said connections, lines or facilities, or any portion thereof are located to repair, replace and generally maintain said connections as and when the same may be necessary as set forth below, provided that such Owner or utility company shall promptly repair any damage to a Lot caused by such entry as promptly as possible after completion of work thereon.

 

 

 

                        8.9.2     Utility connections. Wherever sanitary sewer house connections, water house connections, electricity, gas, telephone or cable television lines or drainage facilities are installed within the Covered Property, which connections serve more than one (1) Lot, the Owner of each Lot served by said connections shall be entitled to the full use and enjoyment of such portions of said connections which service the Owner’s Lot.

 

 

 

                        8.9.3 Encroachments. Each Owner of a Lot adjacent to the Community Common Area, or another Lot shall hereby have an easement over said Community Common Area or contiguous Lot for use and maintenance or encroachments thereon due to settlement or shifting of buildings or other Improvements, original construction errors or any other similar causes, so long as said encroachment s exist. However, no such easement for encroachments shall exist if an encroachment occurred due to the willful conduct of the Owner of the Lot. The rights and obligations of Owners in the Covered Property shall not be otherwise altered or affected by any such encroachment. In the event any Lot adjoining the Community Common Area is situated on the interior of the enclosure of an original boundary fence to the Community Common Area, such property shall be maintained as such Community Common Are, until and unless such fence is relocated. There are hereby reserved and granted for the benefit of each Lot, as dominant tenement, over, under and across each other Lot and Community Common Are and Common Maintenance Area, as servient tenements, and for the benefit of the Community Common Area and Common Maintenance Area, as dominant tenement, over, under and across each Lot, as servient tenement, non-exclusive easements for encroachment, support, occupancy and use of such portions of Lots and Community Common Area and Common Maintenance Area 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 subsidence of any building, structure, or other improvements or any portion thereof, or any other cause. In the event any portion of the Covered Property 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 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.

 

 

 

            8.10 Easements Reserved to Declarant, the Merchant Builders and/or Community Association. There are hereby reserved to Declarant the easements set forth below.

 

 

8.10.1 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 political subdivision.

 

 

                        8.10.2 Cable Television. There is hereby reserved to Declarant and the Merchant Builders together with the right to grant and transfer the same, an exclusive easement for the right to place on, under or across the Covered Property, transmission lines and other facilities for a community antenna system and satellite master antenna system for television of the conveyance of data, radio, electromagnetic of infrared transmissions or technological evolutions of the foregoing and thereafter to own and convey such lines and facilities and the right to enter upon the Covered Property to Service, maintain, repair, reconstruct and replace said lines or facilities.

 

 

 

8.10.3     Construction and Sales. There is hereby reserved to Declarant, including, without limitation, its

sales agents and representatives together with the right of Declarant to grant and transfer, the same; over the Community Common Area as the same may from time to time exist, for Declarant’s development of the Covered Property, easements for construction, development, display and exhibit purposes which are reasonably necessary for the erection and sale or lease of Lots within the Covered Property as provided in the Article hereof entitled “Development Rights.”

 

 

 

8.10.4     Repair and Maintenance. There is hereby reserved to Declarant and the Community

Association, together with the right to grant and transfer the same, an easement over the Lots for the purpose of performing its repair and maintenance obligations Declaration.

 

 

 

8.10.5     Community Association Easements. There is hereby reserved to Declarant, the community

Association and their duly authorized agents and representatives, such easements as are necessary to perform the duties and obligations of the Community Association as are set forth in the Community Governing documents.

 

 

8.10.6     Easements to Declarant for Adjoining Property. Declarant shall have, and hereby expressly

reserves, an easement over, upon, through and across the Community Common Area, as servient tenement for the purpose of reasonable ingress to and egress from, over and across the Encinitas Ranch Community to the Annexable Property until all of such property is annexed to the Covered Property pursuant to the recording of a Supplementary Declaration in accordance with the provisions of Article 15 of this Declaration.

 

 

8.11    Amendment to Eliminate Easements. This Declaration cannot be amended to modify or eliminate the

easements reserved to Declarant 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, so long as the Class C Membership is in effect, require the prior written approval of Declarant.

 

 

 

                                                                        ARTICLE 9

 

                                    INSTALLATION, REPAIR AND MAINTENANCE

 

 

9.1   Repair and Maintenance by Community Association. Without limiting the generality of the statement of

duties and powers contained in this Declaration, and except for any maintenance districts created pursuant to the provisions of Section 8.3.6. of this Declaration, the Community Association shall have the duty to accomplish the duties described below in such manner and at such times as the Community Board shall prescribe, commencing as provided in Section 8.6 hereof.

 

 

 

                        9.1.1 Walkways. The Community Association shall maintain all private walkways, bicycle paths, trails or other pedestrian paths located on the community Common Area.

                                                                                                                                                                       

                        9.1.2. Community Common Area Improvements. The Community Association shall maintain, repair, restore, and make necessary improvements to the Community Common Area, including any Improvements located thereon.

 

 

 

                        9.1.3 Drainage. The Community Association shall maintain all drainage facilities and easements located on the Community Common Area in accordance with the requirements of the City.

 

 

 

                        9.1.4 Utility Easements. The Community Association shall cause the appropriate public utility to maintain my utility easements located on the Community Common Area and Common Maintenance Area.

 

 

 

9.1.5        Common Maintenance Area. The Community Association shall maintain all areas and

Improvements designated as a Common Maintenance Area (including the Slope Maintenance Areas) in this Declaration or a Supplementary Declaration or a separate maintenance and easement agreement, commencing as provided in Section 8.6.

 

 

 

                        9.1.6 Entry Monument Area. The Community Association shall maintain all signage, landscaping and

irrigation located within the Entry Monument Areas.

 

 

 

9.1.7 Exterior Walls and Fences. The Community Association shall maintain the exterior (defined to

mean the side fronting on any public right-of-way or Community Common Area) of any Perimeter Walls or Fences designated in a Supplementary Declaration and shall repair and replace, as necessary, such Perimeter Walls or Fences, unless otherwise specified on a Supplementary Declaration. Except as may otherwise be provided in a Supplementary Declaration, the Community Association shall be responsible for maintaining, repairing and replacing all wrought iron fencing or tubular steel fencing bordering any Lots or Community Common Area. If any wrought iron fencing or tubular steel fencing is attached to a wall, the Owner of the Lot bordering the wall shall maintain the interior of the wall and the Association shall maintain the exterior and top of the wall and be responsible for the repair and replacement of the wall.

 

 

 

9.1.8        Brush Management Areas. To the extent any Community Common Area is situated within a

Brush Management Area, the Community Association shall maintain such areas in accordance with the requirements of the City or other applicable Governmental Agencies.

 

 

 

9.1.9        Other Maintenance Obligations. The Community Association shall maintain all other areas,

facilities, signage equipment, services or aesthetic components of whatsoever nature as may from time to time be requested by the vote or written consent of at least two-thirds (2/3rds) of the Voting Power.

 

 

 

9.1.10     Cost Center Maintenance Areas. The Community Association shall maintain all areas

designated as Cost Center Maintenance Areas, which costs shall be paid by the Owners within the applicable Cost Center.

 

 

 

                        9.1.11 Liability of Individual Owners. Notwithstanding any other provision of this Declaration, an

Owner who by his or her negligent or willful acts or by the negligent or willful acts of his or her Invitees causes a wall or fence or other Improvements which are otherwise being maintained by the Community Association to be damaged, shall bear the whole cost of repairing such damage.

 

 

 

9.2           Repair and Maintenance by Owner. Except for the obligations of the Community Association to repair

and maintain as may be provided in this Declaration, every Owner shall perform the maintenance set forth below.