HomeMy WebLinkAboutCT 81-38; Carlsbad Industrial Associates; Tentative Map (CT)1557
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SAFJCO '..V-L INSURANCE CO,
WHEN RECORDED MAIL TO:
LATHAM & WATKINS
701 B Street, Suite 2100
San Diego, California 9210.1
Attention: Jon D. Deraorest, Esq.
82-276242
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DECLARATION OF
COVENANTS, CONDITIONS
RESTRICTIONS
FOR
PALOMAR INDUSTRIAL CONDOMINIUfJS
.1558
INDEX
PAGE
Introduction 1
Article I - Definitions 3
Article II - Property Rights in
the Units and Common Area 9
Article III - Owners Association 18
Article IV - Duties and Powers of
the Association 21
Article V - Covenant for
Maintenance Assessments ... 31
Article VI - Nonpayment of Assessments 38
Article VII - Use Restrictions 42
Article VIII - Architectural Control 50
Article IX - Beneficiary Protection ... 56
"Article X - Partition and Change
in Units 61
Article XI - Damage or Loss to Improvements '. . . . 64
Article XII - Right of First Refusal 66
Article XIII - General Provisions 67
1550
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
PALOMAR INDUSTRIAL CONDOMINIUMS
THIS DECLARATION is made this 5" day of
Y / 1982, by Carlsbad Industrial Associates,
Ltd., a California limited partnership, hereinafter referred
to as "Declarant":
WI.TNESSETH:
WHEREAS, Declarant is the owner of the real prop-
erty (the "Property") in the County of San Diego, State of
California, described in Section 1.20 hereor;
WHEREAS, Declarant deems it desirable to impose a
general plan for the improvement, development and mainte-
nance of the Property and to adopt and establish covenants,
conditions and restrictions upon the Property for the pur-
pose of enforcing and protecting the value, desirability and
attractiveness thereof;
WHEREAS, Declarant deems it desirable to set aside
certain areas of the Property as common araa for the use of
the owners of the condominium Units to be created on the
Property, and to create a corporation to which shall be dele-
gated and assigned the power of collecting and disbursing
funds pursuant to the assessments and charges hereinafter
created and referred to, and administering and enforcing
these covenants, conditions and restrictions;
WHEREAS, Palomar Industrial Associates, a nonprofit
corporation, will be incorporated unci^r the laws of the State
of California for the purpose of exercising the powers and
functions aforesaid; and
WHEREAS, Declarant will sell, lease or otnerwise
convey all of said Property subject to certain protective
covenants, conditions and restrictions hereinafter set forth;
NOW, THEREFORE, Declarant hereby covenants, agrees
and declares that all of the Property shall be held, sold,
conveyed, hypothecated, encumbered, leased, rented, used,
occupied and improved subject to the following covenants,
conditions, restrictions and easements, which are hereby
declared to be for the benefit of the whole Property. These
covenants, conditions, restrictions and easements shall run
with the Property and shall be binding upon, and inure to
the benefit of, the Property, any portion thereof, and any
interest therein, and shall be binding upon, and inure to
the benefit of, all parties having or acquiring any right,
title or interest in the Property or any portion thereof and
upon their successors and assigns, and are imposed upon the
Property and every part thereof as equitable servitudes in
favor of each and every portion thereof.
1561
ARTICLE j.
DEFINITIONS
Section 1.01. "Architectural Committee" shall
mean and refer to the committee having primary responsibil-
ity for the supervision of architectural design, development
and control, as further provided in Article VIIX hereof.
Section 1.02. "Articles" or "Articles of Incorpo-
ration" shall mean and refer to the Articles of Incorporation
of the Association which have been or will be fiJed in the
office of the Secretary of State of the State of California,
as the same may be amended from time to time.
Section 1.03. "Assessment" shall mean and refer
to any or all of the Assessments hereinafter defined:
(a) "Regular Assessments" shai.1 mean and refer to
a charge against each Unit and its Owner representing a por-
tion of the cost to the Association to provide for and pro-
mots the health, safety and welfare of the Members of the
Association and, in particular, for the improvement and
maintenance of the properties, services, and facilities
devoted to this purpose and related to the use and enjoyment
of the Common Area, including, without limitation, estab-
lishing and maintaining reserves for such purposes.
(b) "Special Assessment" shall mean and refer to
a charge against a particular Owner and his Unit, directly
1502
attributable to such Owner, for a i-oaaoiir.it> I o line or penalty
levied by the Association for a violation ol.' tint; Declara-
tion or the Articles and Byltiwu of l.he AnBociation, or for
certain costs incurred by the Aaiioaiation or Oot:larant for
materials or services furnished to ruich Owner or his Unit at
the request of or on behalf of such Owner as a result of any
Owner failing to maintain any portion of his Unit in accor-
dance with the provisions of" this Declaration or for material
or services furnished to the Common Area or any portion of
any Unit which the Association maintains pursuant to this
Declare tion, as a result of the negligence or willful mis-
conduct of any Owner, his employees, guests or invitees, or
for excessive use or special use of the services or facilities
provided by the Association, including but not limited to
parking, trash removal and maintenance of improvements.
(c) "Capital Improvements Assessment" shall mean
and refer to a charge against each Unit and its Owner repre-
Bcntlncj a portion of the cost to the Association for the
installation, construction, repair or replacement of any
capital improvements, including the necessary fixtures and
pt:rnoiHil proj>»rl.y related thereto, on any Common Area or any
other portion of the Project upon which the Association may
be required to install, construct, repair or replace any
capital improvements as provided in this Declaration, which
1563
cost has not been provided for by reserves established by
Regular Assessments paid by the Members.
Section 1.04. "Association" shall mean and refer
to Palomar Industrial Associates, a nonprofit mutual benefit
corporation, incorporated under the laws of the State of
California, and its successors and assigns.
Section 1.05. "Association Rules" shall mean and
refer to the rules and regulations adopted by the Board pur-
suant to this Declaration and the Bylaws, as such rules and
regulations may be amended from time to time.
Section 1.06. "Board" or "Board of Directors"
shall mean and refer to the Board of Directors of the Asso-
ciation.
Section 1.07. "Building" shall mean and refer to
the building containing the Units of the Project.
Section 1.08. "Bylaws" shall mean and refer to
the duly adopted Bylaws of the Association, as the same may
be amended from time to time.
Section 1.09. "Common Area" shall mean and refer
to the Property, excluding the Units, and any other real or
personal property owned, leased, maintained or administered
by the Association, or over which the Association has an
easement, for the common use and enjoyment of the Members of
the Association.
1564
Section 1.10. "Common Expenses" shall mean and
refer to the actual and estimated costs of: maintenance,
management, operation, repair and replacement of the Comm<m
Area and the Units, to the extent provided in this Declara-
tion; unpaid assessments; maintenance of a fire detection
system; management and administration of the Association,
including, but not limited to, compensation paid by the Asso-
ciation to accountants, attorneys and employees, if such
services benefit the Common Area; reasonable reserves as
appropriate; .all taxes paid by'the Association; insurance
premiums and bonds covering the Association and/or the Com-
mon area; amounts paid by the Association for the discharge
of any lien or encumbrance levied against the Common Area or
portions thereof; amounts paid or incurred by the Association
in collecting assessments pursuant to Article V hereof,
including amounts expended to purchase a Unit in connection
with the foreclosure of the assessment lien against such
Unit and expenses incurred by the Association for any reason
whatsoever in connection with the Common Area, this Declara-
tion or any amendment to this Declaration, the Articles, or
Bylaws or in furtherance of the purpose of the Association
or in the discharge of any obligation imposed on the Associa-
tion or the Board of Directors of the Association by this
Declaration or any amendment to this Declaration.
1565
Section 1.11. "Condominium Plan" shall mean and
refer to the Condominium Plan approved by the City of Carlsbad
in connection with its approval of the Project and to be
recorded in the Official Records of said County with respect
to the Property, pursuant to Sections 783 and 1350 through
1359 of the California Civil Code.
Section 1.12. "Conveyance" shall mean and refer
to conveyance of a fee simple title of any part of the Prop-
erty.
Section 1.13. "Declarant" shall mean and refer to
the parties named in the first paragraph of this Declaration
and their respective heirs, successors anu assigns,
Section 1.14. "Declaration" shall mean and refer
to this Declaration of Covenants, Conditions and Restrictions,
as it may be amended and supplemented from time to time as
"further provided herein.
Section 1.15. "Deed of Trust" shall mean and refer
to any duly recorded deed of trust, mortgage or other convey-
ance, hypothecation or encumbrance of a Unit or interest
therein to secure the performance of any obligation, which
will be void and reconveyed upon completion of such perform-
ance. The term "First Deed of Trust" shall refer to a Deed
of Trust which has priority over any other Deed of Trust.
The terra "Beneficiary" shall mean the beneficiary or mortgagee
156G
under any Deed of Trust, and the term "First Beneficiary"
shall mean the holder of a First Deed of Trust. "Inst.icu-
tional Holder" shall mean a First Beneficiary which is a
commercial bank, federally or state chartered savings and
loan association or other corporation. The term "Trustor"
shall mean the trustor or mortgagor under any Deed of Trust.
Section 1.16. "Floor space" shall mean and refer
to the square footage of the floor area of the Unit(s) as
set forth in the Condominium Plan, as the same may be restruc
tured and reallocated in accordance with the provisions of
this Declaration.
Section 1.17. "Member" shai.l mean and refer to
every person or entity who holds membership in the Associ-
ation as provided in Article III, Section 3.01.
Section 1.18. "Owner" shall mean and refer to the
person or entity who is the record owner of a Unit, but
excluding those having such interest merely as security for
the performance of an obligation. "Ownership" shall mean
the status of being an Owner.
Section 1.19. "Project" shall mean and refer to
the improvements, consisting of an industrial building and
appurtenant parking and structures, constructed by Declarant
upon the Property, together with all repairs, replacements
and additions to be constructed by the Association.
156:
Section 1.20. "Property" shall mean and refer to
all of the real property described in Exhibit "A" attached
hereto and made a part hereof.
Section 1.21. "Unit" shall mean and refer to an
estate in real property as defined in California Civil Code
Section 783, consisting of a separate interest in a condo-
minium unit depicted on the Condominium Flan together with
all right, title, easements and interest appurtenant thereto.
The Units are more particularly described in Article II hereof,
arid in the Condominium Plan., '
ARTICLE II
PROPERTY RIGHTS IN THE UNITS AND COMMON AREAS
Section_2.01. Ownership Interests in the Project.
Declarant, in order to establish a plan or condominium own-
ership for the Project, shall divide the Project into the
following freeho.1^ estates:
(a) Each Unit shall be a separate freehold estate
as defined in Section 1350 of the California Civil code,
consisting of one or more elements comprising a Unit as more
fully described in the Condominium Plan, each bounded by and
contained within the interior unfinished surfaces of the
original perimeter walls (or as they may be reconstructed in
accordance with the Declaration), floors, roofs, windows and
doors thereof. Each Unit includes both the portion of the
1568
Building so described and the airspace so encompassed, and
all non-bearing walls, windows and doors in said Unit, but
the following are not a part of the Unit: bearing walls,
columns, floors, roofs, slabs, foundations> area between the
unfinished surfaces separating a Unit from aa adjoining Unit,
warehouse doors, common trash receptacles, irrigation equipment
and other central services, pipes, ducts, flues, chutes,
conduits, wires, exterior lighting and other utility instal-
lations wherever located (except all utility installations
and/or outleta thereof when located within the Unit, and
except those items of equipment, including mechanical and
electrical equipment, which exclusively serve a Unit). In
interpreting this Declaration, the Condominium Plan and con-
veyances, the existing physical boundaries of a Unit shall
be conclusively presumed to be its boundaries rather than
the metes and bounds (or other description) expressed in the
Declaration, Condominium Plan or Conveyance regardless of
settling or lateral movement of the Building and regardless
of minor variance between boundaries shown on the Condominium
Plan, Conveyance or Declaration and those of the Building,
(b) Each Owner shall have a non-exclusive ease-
ment appurtenant to his Unit for ingress, egress, use an<i
enjoyment over the Common Area.
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1560
(c) Portions of the Comraon Area, to be shown arvd
described on the Condominium Plan as parking spaces, are
hereby set aside as a restricted area and are to be allocated
as hereafter determined by the Association.
Section 2.02. Title to Units. Declarant hereby
covenants for itself, its successors and assigns, that it
will convey fee title to the Units by deed and the interest
so conveyed shall be free and clear of all encumbranees and
liens, except current real property taxes, which taxes shall
be prorated to the date of transfer, and easements, condi-
tions and reservations then of record, including those set
forth in this Declaration, except as may otherwise Le express-
ly provided in a Conveyance to a particular purchaser.
Section 2.03. Title to Common Area. Declarant
hereby covenants for itself, its successors and assigns,
that it will convey fee title to, or an easement over, the
Common Area to the Association, free and clear of all liens
and encumbrances, except current real property taxes, which
taxes shall be prorated to the date of transfer, and ease-
ments, conditions and reservations then, of record, including
those set forth in this Declaration. Said Conveyance shall
be made to the Association prior to or concurrently with the
first conveyance of a Unit.
11
Section 2.04. Members' Easements of Enjoyment,
Every Member shall have a right and easement in and to the
Common Area for ingress, egress, access, parking, use and
enjoyment, including but not limited to an easement for park-
ing purposes, more particularly described in Section 2.09
below; such easements shall be appurtenant to and shall pass
with the title to every Unit, subject to the following provi-
sions :
(a) The right of the Association to establish
uniform or reasonable rules and. regulations pertaining to
the use of the Common Area;
(b) The right of the Association to suspt*.,! the
voting rights and right to use the Common Area (for other
than access, ingress and egress) by a Member for (1) any
period during which any assessment against his Unit remains
unpaid and delinquent and (2) for a period not to exceed
thirty (30) days from any single infraction of the rules and
regulations of the Association, provided that any suspension
of such voting rights or right to use the Common Area, except
for failure to pay assessments, shall be made only by the
Association or a duly appointed committee thereof, after
notice and hearing given and held in accordance with the
Bylaws;
12
1571
(c) The right of the Association or Declarant to
modify reserved easements as set forth in Section 2.08(e)
below;
(d) The right of the Association or Declarant to
grant or transfer all or any part of its easements in the
Common Area to any public agency, authority or utility for
such purposes and subject to such conditions as may be agreed
to by the Members. No such grant or transfer shall be effec-
tive unless written notice of the proposed action is sent to
every Member not less than fifteen (15) days nor more than
ninety (90) days in advance, and unless an instrument signed
by Members entitled to cast two-thirds of the votes of the
membership has been recorded, agreeing to such dedication or
trans fer.
Section 2.05. Delegation. Any Member may dele-
gate in accordance with the Bylaws, his right of enjoyment
to his employees and invitees.
Section 2.06. Waiver. No Member may exempt him-
self from personal liability for assessments duly levied by
•the Association nor release his Unit from the liens and charges
hereof, by waiver of the use and enjoyment of the Common
Area and the facilities thereon or by abandonment of his
Unit.
13
Section 2.07. Encroachments. Each Unit within
the Property is hereby declared to have an easement over all
adjoining property (including Units and Common Area) for the
purpose of:
(a) Accommodating eaves, overhangs and other simi-
lar projections, if any, created during the original construc-
tion of the improvements on the Property or the reconstruction
or repair of any improvements in accordance with plans and
specifications approved by the Architectural Committee, or
maintenance or. repair of neces,sary services, including but
not limited to fire protection systems, security lighting
systems and utilities.
(b) Accommodating minor encroachments due to orgi-
nal engineering or surveying errors, errors in original con-
struction, errors in reconstruction or repair in accordance
with plans and specifications approved by the Architectural
Committee, or settlement or shifting or movement of a building
or other structure.
(c) Maintaining, repairing and reconstructing
such eaves, overhangs, projections and encroachments.
(d) Each Owner agrees for himself and his heirs,
successors, executors, administrators and assigns and the
Association agrees, for itself, and its successors and assigns,
that each will permit free access at reasonable times and
1573
upon reasonable notices by each Owner for whose benefit an
easement is created hereunder for the purpose of exercising
his rights with respect to such maintenance, repair and/or
reconstruction.
Section 2.08. Reserved Easements.
(a) There are hereby reserved by Declarant, together
with the right to grant and transfer the same, easements
over the Common Area, the Units and the exterior and roofs
of any improvement constructed thereon for the installation,
maintenance, service, repair, reconstruction and replacement
of electric, telephone, water,'gas, sanitary sewer lines and
drainage facilities, as shown on the recorded tract or parcel
maps of the Property or otherwise created.
(b) There is hereby reserved by Declarant, includ-
ing without limitation, its employees, agents, successors
and assigns, and representatives and prospective purchasers
of Units, together with the right in Declarant to grant and
transfer the same, the non-exclusive use of the Common Area
for construction, display, sales offices and incidental park-
ing and exhibit purposes in connection with the construction,
development, sale and leasing of Units within the Project
and for such other purposes as are consistent with this Dec-
laration; provided such use will terminate upon the conveyance
o£ all of the Units by Declarant.
1574
(c) There are hereby reserved by Declarant, together
with tha right to grant and transfer the same, easements
over the Property for the purpose of permitting the Associa-
tion, the Board of Directors, the Architectural Committee,
Declarant and others to discharge their rights and obligations
as described in this Declaration.
(d) Every Unit shall have an easement reserved in
favor of the Declarant for the purpose of ingress and egress
and for construction purposes in connection with Declarant's
construction of the Project.
(e) Declarant or the Association shall have the
right to modify any of the foregoing reserved easements, by
changing the location or use thereof, at any time and from
time to time, so long as such modification does not mate-
rially and adversely affect the rights of the Owners, in
~aggregate, to the continuing use and enjoyment of their respec-
tive Units.
Section 2.09. Parking Plan. The Board may allocate
such portions of the Common Area shown and described on the
Condominium Plan as parking spaces for the exclusive use of
the Owner of each Unit in accordance with a reasonable arid
nondiscriminatory parking plan to be adopted.by the Association,
which plan may be amended from time to time. The location
o£ each such space so assigned shall further be subject to
16
1575
change by the Board from time to time as the Board shall
deem appropriate in its sole discretion reasonably exercised.
The Association has full power to regulate the parking plan
and to enforce any parking violations, including the right
to call local police to issue citations or tow vehicles which
are violating the parking rules of the Association or the
laws or ordinances of the City of Carlsbad or other governmen-
tal agencies having jurisdiction. Any requests for changes in
parking location and any disputes with respect to parking
shall be referred to the Association for review and disposi-
tion in its sole discretion. There shall be no tenant or
employee parking in any designated visitor parking area, and
no parking at all in any designated loading area or loading
zone.
Section 2.10. General Restrictions. All present
and future Owners of the Units by their acceptance of their
respective deeds, covenant and agree as follows:
(a) That except as provided in Article X, the
Common Area shall remain undivided, and no Owner shall bring
an action for partition, it being agreed that this restriction
is necessary in order to preserve the rights of Owners with
respect to the operation and management of the Project.
(b) That if any portion of the Common Area en-
croaches upon the Unites, a valid easement for the encroachment
17
1576
and for the maintenance thereof, so long as it stands, shall
and does exist. In the event any structure is partially or
totally destroyed, and then rebuilt, the Owners of the. Units
agree that minor encroachments of parts of the Common Area
onto the Units due to construction shall be permitted and
that valid easements for said encroachments and the mainte-
nance thereof shall exist.
(r) That the Common Area is c.nd always shall be
subjsc- to easements for minor encroachments thereon of the
Units and that a non-exclusive easement for ingress, egress
and support for the common Area is appurtenant to each Unit
and the Common Area is subject -co such easement.
(d) That a perpetual and non-exclusive easement
for the purpose of ingress and ey^ess in connection with the
maintenance of the Common Area, including the exterior of
the Building, by the Association, is hereby granted to the
Association by each Owner, over the entire Common Area and
over the exterior and interior of each Unit.
ARTICLE III
OWNER'S ASSOCIATION
Section 3.01. Membarship. Every person or entity
who or which is an Owner of a fee or undivided fee interest
in any Unit which is subject by convenants of record to assess-
ment by the Association shall be a member of the Association.
1577
The foregoing is not intended to include persons or entities
who hold an interest in a Unit merely as security for the
performance of an obligation. The terms aud provisions set
forth in this Declaration, which are binding upon ali Owners
and all Members in the Association, are not exclusive, as
both the Member and his Unit shall, in addition, be subject
to the terms and provisions of the Articles of Incorporation
and the Bylaws of the Association. Membership shall be appur-
tenant to and may not be separated from an Owner's interest
in a Unit. Ownership of such Unit shall be the sole quali-
fication for membership. ' •
Section 3.02. Voting Rights. The Association
shall have two classes of membership.
Class A. Class A Members shall be all Owners with
the exception of Declarant. Each Class A Member shall be
entitled to one (1) vote for each square foot of Floor Space
in each Unit owned for which the Owner has then paid all
current monthly assessments provided for hereinbelow. When
more than one person holds an undivided interest in any Un.it,
all such persons shall be Members. The vote for surh Unit
shall be exercised as they among themselves determine, but
in no event shall the number of votes cast wich respect to
any Unit be greater than the number of votes for such Unit
set forth in the Condominium Plan, except by expansion/con-
traction of a Unit as provided for elsewhere herein.
19
1578
Class B. The Class B Member shall be the Declarant,
and shall be entitled to five (5) votes for each square foot
of Floor Space in a Unit owned in the Project upon which
Declarant has then paid all current monthly assessments.
The Class B membership shall cease and be converted to Class A
membership when the total votes outstanding in the Class A
membership equals the total votes outstanding in the Class B
membership.
Any provisions in this Declaration, the Articles
or the Bylaws calling for membership approval of action to
be taken by the Association shall expressly require an affirma-
tive vote of the stated percentage of each class of Members
required in that particular provision. Further, where such
governing instruments require the vote of each class of mem-
bership as a prerequisite to the initiation of action by or
in the name of the Association, any requirements elsewhere
in this Declaration, the Articles or Bylaws that the vote of
the Declarant shall be excluded, shall not be applicable.
Notwithstanding the foregoing, at such time when the Class B
membership shall cease and be converted to Class A member-
ship, any and all provisions in this Declaration, the Articles
and the Bylaws requiring the approval of both classes
of Members or the voting power of the Association shall be
understood arid construed to require the approval of the
Class A Members only.
20
Section 3.03. Vesting of Voting Rights. The vot-
ing rights attributed to each Unit shall not vest until the
assessments provided for hereinbelow have been levied by the
Association against such Unit.
Section 3.04. Transfer. The membership held by
any Owner of a Unit shall not be transferred, pledged, or
alienated in any way, except upon the sale or encumbrance of
the Owner's Unit. In the event of such sale or encu-ubrance,
the Association membership may only be transferred, pledged
or alienated to a bona fide purchaser of the Unit, or to the
Beneficiary (or third-party purchaser) of such Unit upon a
foreclosure sale. Any attempt to make a prohibited transfer
is void, and will not be reflected upon the books and records
of the Association; the Association shall have the right to
record a transfer only upon receipt of evidence of such
transfer satisfactory to the Association.
ARTICLE IV
DUTIES AMD POWERS OF THE ASSOCIATION
Section 4.01. The Association is hereby desig-
nated as the management body of the Project. The Members of
the Association shall be the Owners in the Project as pro-
vided herein, and the affairs of the Association shall be
managed by a Board of Directors as more particularly set
forth in the Bylaws of the Association. The initial Board
21
1580
of Directors shall be appointed by the incorporating Direc-
tors or their successors. Thereafter, the Directors shall
be elected as provided in said Bylaws.
Section 4.02. The Association shall have the right
and power to do any and all things that a corporation organ-
ized under the nonprofit corporation law of the State of
California may lawfully do which are necessary for the manage-
ment and operation of the Project. Subject to the provisions
of the Articles and the Bylaws, the powers of the Association
shall include, but shall not necessarily be limited to, the
specific acts hereinafter enumerated and those set forth in
the California Civil Code, Section 1355(b), Subsections (1)
through (9).
Section 4.03. Without limiting the generality of
the foregoing, the Association shall possess, perform, and
execute the following powers and duties:
(a) Provide water, sewer, gas, electricity, gar-
bage and trash collection, and other necessary utility ser-
vices for the Comin-n Area;
(b) Provide:
(i) A policy or policies of fire insurance
with extended coverage endorsement, for the full replacement
value of the entire Project, including, without limitation,
the Common Area arid the Units but exciuding the Owners' per-
sonal property, payable as provided herein, or such other
22
1581
fire and casualty insurance as th3 Association shall deter-
mine gives substantially equal or greater protection, insuring
the owners and their respective Beneficiaries, as their inter-
est may appear, and as to each of such policies which will
not be voided or impaired thereby, the Owners hereby waive
and release all claims against the Association, the Board of
Directors, any Manager (as provided for hereinbelow), the
Declarant, and agents and employees of each of the foregoing,
with respect to any loss covered by such insurance, whether
or not caused by the negligence of, or breach of any agreement
by, said persons, but only to the extent of the insurance
proceeds received in compensation fc~ "uch loss.
(ii) A policy or policies of liability insur-
ance covering the Association, the Board of Directors, the
Declarant, any Manager and the agents and employees of each
of the foregoing, against any liability to the public or to
any Owner, his invitees and/or tenants, arising from or inci-
dent to the ownership, occupation, use, maintenance, and/or
repair of the Common Area and Units, and if reasonably obtain-
able, a cross-liability endorsement insuring each insured
against liablity to each other insured; limits of liability
shall be set by the P.ssociation and such limits and coverage
shall be reviewed at least annually by the Association and
increased or decreased in its discretion;
23
(iii) Workers' compensation insurance to the
extent necessary to comply with any applicable laws;
(iv) Such other policies of insurance as tit-
Association may deem appropriate; and
(v) The Association shall be deemed the
trustee for the Owners in connection with any insurance pro-
ceeds paid to the Association under any of the aforesaid
policies, and shall have full power to receive such funds on
behalf of the Owners and Beneficiaries, as their interests
appear, and to deal therewith.
(c) In its discretion, employ or contract with a
person or firm (hereinafter referred to as "Manager") to act
as agent or management company or to otherwise perform all
or any part of the duties and responsibilities of tha Asso-
ciation or to exercise any of the powers of the Association.
The Manager, if any, shall manage and supervise the use and
operation of the Common Area.
(d) Paint, repair and maintain in a neat, safe,
attractive, sanitary and orderly condition all portions of
the Common Area, including all portions of the improvements
in the Project (but excluding therefrom each Unit), equip-
ment, landscaping and furnishings in and upon the Common
Area.
1583
(e) In addition to all other provisions set forth
herein respecting the maintenance of the Common Area, main-
tain in reasonable condition all storm drains, sanitary sewers,
private streets, if any, utilities, and open spaces within
the Common Area.
(f) Pay all real and personal property taxes and
assessments which the Association is required to pay for
pursuant to the terms and provisions of this Declaration or
the Bylaws, unless separately assessed to the Owners.
(g) Obtain any other material, supplies, furni-
ture, labor, services, maintenance, repairs, structural
alterations and insurance which the Association is required
to pay for pursuant to the terms and provisions of this Dec-
laration or by law.
(h) Maintain the outer walls of the Project,
including roofs and repainting of all exterior painted sur-
faces, and any landscaping which has been installed by Dec-
larant on the Project, including the replacement thereof;
all in an attractive, neat and orderly condition. The Asso-
ciation shall be responsible for maintenance, repair and
replacement as necessary of any heating, air conditioning or .
telecommunications equipment, located on the roofs of buildings,
and the cost of such maintenance, repair and replacement
shall be charged as a Special Assessment against the Owners
of the Units specifically served by such equipment.
1584
(i) Establish and maintain a working capital and
contingency fund from Regular Assessments for such purposes
and in such amounts as may be determined by the Board of
Directors of the Association.
(j) Cause financial statements for the Association
to be regularly prepared and copies distributed to sach Member
of the Association as follows:
(i) A pro forma operating statement (budget)
for each fiscal year shall be distributed not less than sixty
(60) days before the beginning of the fiscal year.
(ii) A balance sheet as of an accounting date
which is the last day of the month closest in time to six
(6) months from the date of closir.;, :.f the first sale of a
Unit and an operating statement for the period from the date
of the first closing to the said accounting date, shall be
distributed within sixty (60) days after the accounting date.
This operating statement shall include a schedule, of assess-
ments received, and receivable, identified by the number of
the Unit, and the name of the person or entity assessed.
(iii) A balance sheet as of the last day of
the Association's fiscal year and an operating statement for
said fiscal year shall be distributed within ninety (90)
days after the close of the fiscal year, prepared by the
Association's Chief Financial Officer or certified public
accountants.
26
158:5
(k) Establish, change, collect and pay out of the
assessments provided for hereinbelow all costs and expenses
incurred by the Association in connection witu the perform-
ance and execution of all of the aforesaid powers and duties,
and any other powers and duties which the Association may
assume as provided for in Section 4.04 hereinbelow.
Section 4.04. The Association, acting at its option
and by and through its Board of Directors, may assume, perform,
and execute the following powers and duties:
(a) Provide such other personnel as the Association
deems necessary and proper to'assist in the operation of the
Association and/or management of the Common Area, reyardless
of whether such other personnel are employed directly by the
Association or otherwise.
(b) Incur any liability or pay any costs or expenses
for a Unit or Owner thereof, provided, however, that in the
event the Association does incur any such liability or pay
any such costs or expenses, the amount thereof shall be speci-
fically assessed to the Owner of such Unit; provided further,
however, that nothing herein shall permit the Association to
assess the Owners for any new improvements or additions to
the Common Area except pursuant to the relevant provisions
of this Declaration.
27
(c) Provide any other material, supplies, furni-
ture, labor, services, maintenance, repairs, structural altera-
tions, or insurance, or pay any taxes or assessments, which
in the opinion of the Board of Directors shall be necessary
or proper for 'the operation of the Common Area for the benefit
of the Owners, or for the enforcement of this Declaration.
(d) Have the power and duty, subject to the rights
of Declarant as provided herein, to enforce the provisions
of this Declaration by appropriate means, including without
limitation, the expenditures of'funds of the Association,
the employment of legal counsel and the commencement of
actions.
Section 4.05. Except as otherwise provided in
Section 4.09, no contract entered into by the Association or
the Board of Directors acting for and on behalf of the Asso-
ciation may have a term longer than one (1) year, except
with the vote or written assent of a majority of the voting
power of the Association.
Section 4.06. In the event that the Association
shall delegate any or all of its duties, powers, or func-
tions to any person, corporation, or firm to act as Manager,
neither the Association nor the members of its Board of Direc-
tors shall be liable for any omission or improper exercise
by the Manager of any such duty, power, or function so dele-
gated.
28
1587
Section 4.07. The Association may take any and
all action deemed by it to be expedient to abate, control or
limit any nuisance or unsafe or disorderly condition ~r cc.iduct
on the Property by any Owner or other person. Costs thereof
shall be charged to any Owner responsible by a Special Assess-
ment. In the event of any such situation, or, of any emergency
involving illness or potential danger to life or property,
the Association, any person authorized by the Association,
and any Owner may enter any Unit if acting in good faith.
Such entry shall be made with as little interference to the
Owner of such Unit as is reasonably practicable. In the
event that any damages shall be proximately caused by or
result from said entry, the Association shall repair the
same at its expense unless the Owner was responsible for the
situation which resulted in such entry.
Section 4.08. The Association, or any person auth-
orized by the Association, shall have the right to enter,
upon reasonable notice, any Unit to effect necessary repairs
which the Owner has failed to perform or which are necessary
in connection with the repairs to the Common Area or an
adjoining Unit.
Section 4.09. The Board of Directors of the Asso-
ciation shall be prohibited from taking any of the following
actions, except with the vote or written assent of a majority
or the voting power of the Association.
29
1588
(a) Entering into a contract with a third person
wherein the third person will furnish goods or services for
the Common Area or the Association for a term longer thsri
one year with the following exceptions:
(i) A management contract;
(ii) A contract with a public utility company
if the rates charged for the materials or services are sub-
ject to governmental regulation; and
(iii). Prepaid casualty and/or liability insur-
ance policies of not to exceed three (3) years duration,
(b) Incurring aggregate expenditures for capital
improvements to the Common Area in any fiscal year in excess
of 5% of the budgeted gross expenses of the Association for
that fiscal year; or
(c) Selling during any fiscal year property of
the Association having an aggregate fair market value greater
than 5% of the budgeted gross expenses of the Association
for that fiscal year.
Section 4.10. The Association is authorized and
empowered to grant such licenses, easements, and rights-of-
way for sewer lines, water lines, underground conduits, storm
drains, and other public utility purposes over those portions
of the Common Area upon which no building or other structure
has been erected as may be necessary and appropriate for the
30
1589
orderly maintenance, preservation of the health, safety,
convenience, and welfare of the.Owners.
Section 4.11. Except as provided elsewhere in
this Declaration relating to restoration of damaged iu.prove-
ments, the Association may construct nev; improvements or
additions to the Common Araa or demolish existing improve-
ments, provided that in the case of any improvement, addi-
tion, or demolition involving a total expenditure in excess
of five percent (5%) of the budgeted gross expenses of tte
Association for that fiscal year, the written consent or
vote of a majority of the Owners (other than the Declarant)
In the Project as to the maximum total cost therefor shall
first be obtained, and provided that no Unit shall be altered
or damaged by any such demolition or construction without
the consent of the Owner thereof. The Association shall
lovy a special assessment on all Owners in the Project for
the cost of such work.
ARTICLE V
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 5.0.1. Creation of the Lieu and Personal
Obligation of Assessments. The Declarant, for each Unit of
which it is the Owner, hereby covenants and agrees to pay,
and each Owner by acceptance of a deed of a Unit, whether or
not it shall be so expressed in any such deed, is deemed to
31
1590
covenant and agree to pay to the Association (Z) Regular
Assessments, (2) Special Assessments and (3) Capital Improve-
ment Assessments, as such Assessments may be fixed, established
and collected from time to time as hereinafter provided.
The Regular, Special and Capital Improvement Assessments,
together with such interest thereon and costs of collection
thereof, as hereinafter provided, shall he a charge on the
land and shall be a continuing lien upon the Unit against
which each such Assessment is made. Each such Assessment,
together with such interest, costs and reasonable attorneys'
fees, shall also be the persona.l obligation of the person
who was the Owner of such Unit at the time v/hen the Assessment
fell due and shall bind such Ovmer's heirs, administrators,
successors and assigns.
Section 5.02. Regular Assessments.
(a) The amount of Regular Assessments for a fis-
cal year of the Association shall be determined by the Board
of Directors of the Association pursuant to this Declaration,
the Articles and Bylaws after giving due consideration to
the current maintenance costs and future needs, including
the buildup of reserves for working capital and contingencies
•(e.g., roofing, painting and resurfacing of parking area),
of the Association. The Regular Assessments for a fiscal
year of the Association shall be paid in monthly installments.
32
1591
(b) Without first receiving the approval of a
majority of the votes entitled to be cast by the Class A
Members and the approval of the Class B Member, the Board
may increase the total annual Regular Assessments par assess-
able square foot of Floor Space with respect to any upcoming
fiscal year of the Association by an amount not in excess of
the greater of (i) 25% over the amount of the total Regular
Assessments (including all supplemental Regular Assessments)
per assessable square foot of Floor Space levied with respect
to the current fiscal year or (ii) the percentage increase
in the United States Department of Labor, Bureau of Labor
Statistics, Consumer Price Index of Urban Wage Earners and
Clerical Workers, San Diego Area Inctex, All Items (1967=100)
or any similar index substituted therefor (the "Index") for
the eighth month of the current fiscal year of the Association
over the Index for the same month of the previous fiscal
year of the Association.
(c) In the event that the Board shall determine
that the estimate of the total Regular Assessments for tne
fiscal year of the Association is, or will become, inade-
quate to meet all Common Expenses for any reason, it shall
immediately determine the approximate amount of such inade-
quacy. The Board shall have the authority to levy at any
time, by a majority vote of the Board, a supplemental Regu-
lar Assessment reflecting a revision of the total charges to
33
159;3
be assessed against each Unit and the Owner thereof, which
supplemental Assessment shall not exceed (i) 25% of the total
annual Regular Assessments with respect to the current fiscal
year of the Association, provided that such Regular Assessments
have been previously approved pursuant to the provisions of
paragraph (b) of this Section, or (ii) in the event that the
current Regular Assessments have not been so approved, 25%
of the total annual Regular Assessments (including all supple-
mental Regular Assessments) with respect to the previous
fiscal year of the Association. To the extent that any sup-
plemental Regular Assessment, or the aggregate of any supple-
mental Regular Assessments, with respect to any fiscal year
of the Association exceeds the applicable foregoing limit,
such excess shall require the prior approval of a majority
of the votes entitled to be cast by the Class A Members and
the prior approval of the Class B Member. Written notice of
any change in the amount of Regular Assessments levied by
the Association through the Board as provided in this paragraph
shall be given to all members affected thereby not less than
30 days prior to the effective date of such change.
(d) If the amount budgeted to meet Common Expenses
for any period proves to be excessive in light of actual
Common Expenses, the Board in its discretion may, by resolu-
tion, reduce the amount of the Regular Assessments.
1593
Section 5.03. Special Assessments. Each Owner
shall be liable to the Association by way of Special Assess-
ment for any damage to the Common Area or to any Association
property or to the Association which may be sustained by
reason of the negligence or willful misconduct of said Owner
or of his employees, agents, guests or invitees. In the
case of joint Ownership of a Unit, the liability of such
Owners shall be joint and several. The amount of the loss,
and any expense incurred by the Association in repairing
such damage, together with costs, and attorneys' fees, shall
be a debt of the Owner causing the same, and the Board may
specifically assess, by way of Special Assessment, said Owner
for the amount thereof to the extent that any such damage
shall not be covered by a policy of insurance. The Board
may also levy special assessments for Owners who are specifi-
cally found to be excessive users of the services or facilities
furnished or provided by the Association, including, but not
limited to, trash removal or parking facilities, or for any
violation of the rules and regulations of the Association or
this Declaration.
Section 5.04. Capital Improvement Assessments.
In addition to the Regular and Special Assessments, the Asso-
ciation may levy in any calendar year, a Capital Improvement
Assessment applicable to that year only, provided that any
such Assessment shall have the approval by vote or written
35
i594
consent of Members entitled to exercise not less than two-
thirds (2/3) of the voting power of the membership.
Section 5.05. Rate of Assessment. Both Regular
and Capital Improvement Assessments shall be based upon the
air space comprising each Unit in relationship to the total
air space comprising of all the Units, and may be collected
on a monthly or other periodic basis. The percentage of
Regular and Capital Improvement Assessments to be paid by
the Owner of such Unit shall be set forth on the Condominium
Plan. . - .'
Section 5.06. Date of Commencement of Re^'-ar
Assessments and Fixing Thereof. The Regular Assessments
provided for herein shall commence as to all Units on the
first day of the month following the conveyance of the first
Unit from Declarant to an Owner. The Association may extend
the commencement date of Regular Assessments to a time not
later than twelve (12) months following the completion of
all improvements and landscaping within the Common Area, if
Declarant, by a written agreement with the Association, agrees
to maintain the Common Area until such extended date.
Section 5.07. Duties of the Board of Directors.
The Board of Directors of the Association shall fix the amount
of Regular Assessment againr-t each Unit for each year at
least thirty (30) days in advance of such year and shall, at
36
1595
that time, prepare a roster of the Units within the Property
and Regular Assessments applicable thereto which shall be
kept in the Office of the Association and shall be open to
inspection by any Owner during normal business hours.
Written notice of the Regular Assessments, Capital
Improvements Assessments, or any changes thereto, shall be
sent to every Owner subject thereto at least fifteen (li>).
days prior to each fiscal year of the Association, or in ,he
case of changes, at least fifteen (15) days prior to the
effective date of the change. ; ••
Section 5.08. Certificate of Payment. The Asso-
ciation shall, upon demand, furnish to any Owner liable for
said Assessment, a certificate in writing signed by an offi-
cer of the Association, setting forth whether the Assess-
ments on a specified Unit have been paid and the amount of
the delinquency, if any. A reasonable charge may be made by
the Board for the issuance of these certificates. Such cer-
tificates shall be conclusive evidence of payment of any
Assessment therein stateu to have been paid.
Section 5.09. Assessment of Units Owned by Declarant.
Without exception, each Unit of which Declarant is the owner
shall be subject to assessment in the same manner as any
other Unit owned by any individual Owner.
Section 5.10. N '.nuse and Abandonment. do Owner
may waive or otherwise escape personal liability for the
37
1596
assessments provided for herein by nonuse of the Common Area
or abandonment of his Unit.
ARTICLE VI
NONPAYMENT OF ASSESSMENTS
Section 6.01. Delinquency. Any installment of
any Assessment provided for in this Declaration which is not
paid when due shall be delinquent. If any such installment
is not paid within thirty (30) days after the delinquency
date, a late charge of five percent (5%) of the delinquent
amount, or Twenty Dollars ($20.00), whichever is greater,
may be levied by the Board of Directors for each delinquent
installment, and the delinquent installments shall bear inter-
est from the date of delinquency until paid in full at the
rate of eighteen percent (18%) per annum, or two percent
(2%) in excess of the prime commercial rate at Bank of Amer-
ica, N.T. & S.A., whichever is higher (but not greater than
the maximum rate then permitted by law), and in addition to
all legal and equitable rights or remedies, the Association
may, at its option, declare all the installments of Assessments
with respect to the Unit subject to delinquency for the current
Association fiscal year immediately due and payable. The
Association may bring an action at law against the Owner
personally obligated to pay the same or, upon compliance
with the notice provisions set forth in Section 6.02 hereof,
38
to foreclose the lien (provided for in Section 5,01 hereof)
against the Unit, and there shall be added to the amount of
such Assessment, interest thereon, the late charges, the
costs of preparing and filing the complaint in such action
and, in the event a judgment is obtained, such judgment shall
include said interest, late charges and actual attorneys'
fees, together with the costs of such action. Each Owner
vests in the Association or its assigns, the right and power
to bring all actions at law and/or to foreclose a lien against
such Owner or o.ther Owners for .the collection of such delin-
quent Assessments or installments thereof. Tn lieu of judi-
cially foreclosing the lien, the Association, at its option,
may foreclose such lien by proceeding under a power of sale
as provided in Section 6.03, such a power of bale being given
the Association as to each and every Unit for the purpose of
collecting delinquent Assessments.
Section 6.02 . Notice of Lien. No Action shall be
brought to foreclose an Assessment lien or to proceed under
the power of sale provided herein less than thirty (30) days
after the date a notice of claim of lien is deposited in the
United States mail, certified or registered, postage prepaid,
to the Owner of said Unit, and a copy thereof is recorded by
the Association in the office of the San Diego County Recorder.
Said notice of claiw of lien must recite a good and sufficient
39
1598
legal description of any such Unit, the record Owner or reputed
Owner thereof, the amount claimed (which may at the
Association's option include.late charges, interest on the
unpaid Assessment at the rate specified nerein, plus actual
attorneys' fees and expenses of collection in connection
with the debt secured by said lien), and the name and address
of the Association. Said notice of claim of lien shall be
signed by an authorized representative of the Association
and, upon its recordation, shall create a lien against the
Unit described therein.
Section 6.03. Foreclosure Sale. Any such sale
provided for above is to be conducted in accordance with the
provisions of Sections 2924, 2924b, and 2924c of the Civil
Code of the State of California, applicable to the exercise
of powers of sale in mortgages and deeds of trust, or in any
other manner permitted or provided by law. The Association,
through its duly authorized agents, shall have the power to
bid on the Unit at foreclosure sale and to acquire and hold,
lease, mortgage and convey the same.
Section 6.04. curing of.Default. Upon the timely
curing of any default for which a notice of claim of lien
was filed by the Association, the officers of the Association
are hereby authorized to file or record, as the case may be,
an appropriate release ox such notice, upon payment by the
40
1599
defaulting Owner of a fee, to be determined by the Association,
to cover the coste of preparing and filing or recording such
release, together with the payment of such other costs, late
charges, interest or fees as shall have been incurred.
Section 6.05. Cumulative Remedies. The Assess-
ment lien and the rights to foreclosure and sale thereunder
shall be in addition to and not in substitution for all otuer
rights and remedies which the Association and its assigns
may have hereunder and by law, including a suit to recover a
money judgment for unpaid Assessments, as above provided.
Section 6.06. Subordination of Assessment Liens.
If any Unit subject to a monetary lien created fay any pro-
vision hereof shall be subject to the lien of any bona fide
Deed of Trust for value: (1) the foreclosure of any lien
created under this Declaration shall not operate to affect
or impair the lien of such Deed of Trust; and (2) the fore-
closure of the lien of such Deed of Trust or the acceptance
of a deed in lieu of foreclosure of the Deed of Trust shall
not operate to affect or impair the lien hereof, 'except that
the lien hereof for said charges as shall have accrued up to
the foreclosure or the acceptance of the deed in lieu of
foreclosure shall be subordinate to the lien of the Deed of
Trust with the foreclosure-purchaser or deed-in-lieu-grantee
taking title free of the lien hereof for all said charges
41
1GOO
that have accrued up to the time of the foreclosure or deed
given in lieu of foreclosure, but subject to tha lien hereof
for all said charges that shall accrue subsequent to the
foreclosure or deed given in lieu of foreclosure.
ARTICLE VII
USE RESTRICTIONS
The Units and the Common Area shall be occupied
and used only as follows:
Section 7.01. Unless otherwise specifically pro-
hibited herein, any operation and use shall be permitted
within the Units if it is a general use customarily found in
industrial buildings in the surrounding vicinity, is performed
entirely within the Unit and is permitted by applicable laws,
regulations and ordinances of the the City of Carlsbad or
other governmental agencies having jurisdiction, by that certain
Declaration of Covenants and Restrictions recorded October 1,
1974 at File/Page No. 74-263897, Book 1974, Official Records
of San Diego County, California, as amended, and by this
Declaration; provided, however, that Declarant reserves the
right, for a period of seven (7) years from recordation hereof
or until all Units in the Project are sold, whichever shall
first occur, to carry on normal sales activity on the Project,
including the operation of models and a sales office, if
any, and Declarant shall have, during the above period, the
1601
non-exclusive right to use the Common Area and/or the Units
for such purposes.
Section 7.02. Uses of the Common Area shall be
subject to the provisions of this Declaration, and to the
additional limitations determined by the Association. The
Board of Directors shall have the right to approve the busi-
ness uses in the Project, taking into account traffic and
parking requirements of different uses, noise levels, com-
patibility and harmony with existing uses and any other facts
or circumsta-vces.
Section 7.03. Mo noxious or offensive trade or
activity shall be carried on within the Units or upon any
part of the Project, nor shall anything be done thereon which
may be, or may become, an annoyance or nuisance to any prop-
erty or Owner within the Project or which may be inconsistent
with or detrimental to the operation of the Project, or
which shall in any way increase the rate of insurance thereon.
The prohibition of uses shall include, but is not limited
to, each of the following:
(a) No industrial use shall produce noise at a
level greater than the standards set by the appropriate local,
state or federal agency.
(b) All equipment causing earth or floor vibrations
shall be so mounted as to eliminate vibration hazard and to
1602
prevent unreasonable vibrations from extending to any other
Unit in the Project.
(c) No industrial use shall discharge into the
atmosphere any odorous matter or air pollutants producing a
hazard or nuisance to any other Unit in the Project. No
process which by its nature is liksly to cause air pollution
shall be permitted unless there is available a method approved
by Declarant or the Association and all applicable governmental
agencies for controlling the emission of pollutants, and
such Controls are effectively implemented whenever required
by Declarant or the Association, or any governmental agency.
(d) No industrial use shall discharge onto any
portion of the Property, nor discharge into any sewer system
or storm drain system for the Project, any toxic or noxious
material or other substance which would create a hazard to
or otherwise endanger the health, safety or welfare of any
Owner of a Unit in the Project or his employees, tenants or
customers.
(e) No Owner shall permit any unsightly condition
to exist in or on any portion of his Unit or any other area
of the Project subject to an easement for his exclusive use
thfereof, which condition may be viewed from any other Unit
or from any portion of the Common Area.
44
1603
Section 7.04. No part of the Project shall be
used or caused to be used or allowed or authorized in any
way, directly or indirectly, for any residential purposes.
Section 7.05. Nothing shall be done or kept in
any Unit and/or the Common Area, which will increase the
rate of insurance on the Common Area without the approval of
the Association. No Owner shall permit anything to be done
or kept in his Unit, or the Common Area, which will result
in tht cancellation of insurance on any Common Area or which
would be in violation of any law.
Section 7.06. No sign of any kind shall be dis-
played on or from any Unit, or the Common Area, without the
approval oi' the Association, except such signs as may be
used by Declarant for a period of time not to exceed seven
(7) years in connection with the development of the Project
and sale of Units; and further except one (1) "for sale" or
"for lease" sign (in form specified by the Association) by
an Owner on his Unit.
Section 7.07. NO animals of any kind shall be
raised, bred or kept in any Unit or on the Common Area, for
any purpose, including commercial purposes, except such ani-
mals used for security purposes as may be approved by the
Board of Directors.
45
1601
Section 7.08. Nothing shall be done in any Unit
or in, on, or to any Common Area which would structurally
change any building, except as is otherwise provided herein.
Section 7.09. There shall be no alteration, con-
struction, or removal of any building, fence, wall, sign or
other structure in the Project (other than repairs or rebuild-
ing provided for elsewhere in this Declaration) without the
approval of the Architectural Control Committee, as set forth
hereinbelow. No building, fence, wall or other structure
shall be constructed upon any portion of any Common Area
other than such buildings and structures as shall be construc-
ted (a) by the Declarant (or a person to whom Declarant assigns
its rights as developer), or (b) by the Association as pro-
vided elsewhere in this Declaration.
Section 7.10. Except as permitted by the Associa-
tion, through the parking plan or any changes thereto, no
structure of a temporary or permanent character, trailer,
camper, boat or equipment, or materials, supplies, inventory
or work in progress or any similar property shall be permit-
ted to remain in the Common Area. There shall be no parking
within the Common Area other than of passenger vehicles in
the parking spaces; provided, however, that temporary park-
ing shall be allowed. "Temporary parking" shall mean parking
of delivery trucks, service vehicles and other commercial
46
160;>
vehicles being used in supplying materials and making deliv-
eries to the Association, the Owners, their guests, tenants,
employees, and invitees and parking of vehicles belonging to
or being used by Owners for loading or unloading purposes.
Such temporary parking shall not unreasonably interfere with
another Owner's use of his Unit. The Common Area is hereby
made subject to all State laws and County and City ordinances
pertaining to the control of vehicular traffic and parking,
and the City of Carlsbad or other governmental agencies having
jurisdiction through their, authorized agents are hereby given
the authority to enter upon the Common Area and enforce such
laws and ordinances in addition to the Association's right
to enforce the Association Rules.
Section 7.11. No materials, supplies, equipment
or trucks shall be stored or parked in the Common Area, except
for the most limited time possible while loading and unloading
vans, trucks or other vehicles. In no event shall any Owner,
tenant or employee impede any means of ingress to or egress
from another Owner's Unit.
Section 7.12. No Owner shall install or cause to
be installed any television, radio or telecommunications
antenna or other electronic receiving or broadcasting device,
or any chimney, duct, flue or other similar apparatus on any
portion of the exterior of any building in the Project without
47
160G
prior consent of the Architectural Committee. In no event
shall a device be visible from the front of the Project.
Section 7.13. Lgase of Units. An Owner may lease
all or part of his entire Unit, except as hereinbelow pro-
vided. All lease agreements shall be in writing and ahall
provide that the terms of the lease shall be subject in all
respects to the provisions of this Declaration, that the
tenant agrees to be bound by this Declaration and the Asso-
ciation Rules and that any failure by the lessee to comply
with the terms of.such documents shall constitute a default
under the lease. No tenant, however, shall have the rights
of an Owner as a Member of the Association, to vote or othe-
wise, unless specifically assigned to such tenant in the
lease agreement.
Section 7.14. Party.,Walls.
(a) Each wall which is built as a part of the
original construction of the Project, any part of which is
placed on the dividing line between the Units, shall consti-
tute a party wall; and, to the extent not inconsistent with
the provisions of this Section, each of the adjoining Unit
Owners shall assume the burdens and be entitled to the bene-
fits of the provisions of this Section, and the general rules
of law regarding party walls, and liability for property
damage due to negligence or willful acts or omissions shall
apply thereto.
48
1607 3B
Ie
(b) The cost of reasonable repair and maintenance
of a party wall shall be shared by the Owners who make use \4of the wall in proportion to such use. Jr. addition to meet-
ing the other requirements of this Declaration and of any
building code or similar regulations or ordinances, any Owner
proposing to modify, make additions to or rebuild any improve-
ment on his Unit in any manner which requires the extension
or other alteration of any party wall shall first obtain the
written consent of the adjoining Owner, and the Architectural
Committee.
(c) If a party wall is destroyed or damaged by
fire or other casualty, any Owner who has used such wall may
restore it, and the other Owner shall contribute to the cost
of restoration thereof in proportion to such owner's use
without prejudice, however, to the right of any such Owner
to call for a larger contribution from the other under any
rule of law regarding liability for negligent or willful
acts or omissions.
(d) Adjoining Units shall be considered to adjoin
and abut the wall of the contiguous Units to the side, above
and below. Both Declarant and the Owners of contiguous Units
shall have reciprocal easements appurtenant to each of said
Units over said contiguous Unii-s for the purpose of accommo-
dating any encroachment of any wall of any building. Declar-
ant and the Owners of contiguous Units shall have reciprocal
49
1608
easements appurtenant to each of said Units over said contigu-
ous Units for the purposes of accommodating any natural settl-
ing of any structures located' on any of said Units.
(e) In the event of any dispute arising concern-
ing a party wall, or other provisions of this Section, the
parties shall submit the dispute to arbitration in the same
manner as provided for the Association.
Section 7.15. Store-Front Glass. Each Owner is
individually responsible for the maintenance, repair and
replacement of all glass windows included in or attached to
such Owner's Unit. If any such glass window is broken, ^ha
Owner shall promptly replace the broken glass window with
new undamaged glass.
Section 7.16. Roof Structures. No equipment,
device or other structure shall be placed upon or affixed or
attached to the roof of the Building except in compliance
with Policy No. 80-6 of the Building Department of the City
of Carlsbad.
ARTICLE VIII
ARCHITECTURAL CONTROL
Section 8.01. Architectural Approval. No build-
ing, fence, wall, sign or other structure shall be commenced,
erected, installed, maintained or removed on or from the
Property (including the common Area), nor shall any exterior
50
1609
addition to or change or alteration therein (including paint
ing and any change to the window coverings originally installed
in each Unit) be made until the plans and specifications
showing the nature, kind, shape, height, materials and loca-
tion of the same shall have been submitted to and approved
in writing as to harmony of external design and location in
relation to surrounding structures and topography by the
Architectural Committee provided for in Section 8.02 hereof.
Declarant, its successors or assigns, shall not, however, be
required to comply with the provisions of this Section 8.01.
In the event the Architectural Committee, or its designated
representatives, fails to approve or disapprove such design
and location within thirty (30) days after said plan and
specifications have been submitted to it, said plans and
specifications ohall be deemed approved and this Article
will be deemed to hava been fully complied with. All improve-
ment work approved by the Architectural Committee shall be
diligently completed.
Section 8.02. Appointment of Architectural Committee.
Declarant shall initially appoint the Architectural Committee,
consisting of not less than three (3) Members, and shall
have the right to appoint, remove and replace all members of
the Architectural Committee until all of the Units in the
Property have been sold or leased by Declarant. From and
51
after such time or event, as the case may be, the Architectural
Committee shall be appointed by the Board of Directors of
the Association and shall be composed of three (3) or more
representatives who need not be Members.
Section 8.03. No Liability. Neither Declarant,
the Association, nor the Architectural Committee, or the
members or any delegate thereof pursuant to Section 8.07
hereof snail be liable for damages to anyone submitting plans
or specifications to them for approval, or to any Owner
affected by these restrictions by-reason of mistake in judg-
ment, negligence, or nonfeasance arising out of or in connec-
tion with the approval, disapproval or failure to approve or
disapprove any such plans or specifications. Every Owner
and every person who submits plans or specifications agrees
that he will not bring any action or suit against Declarant,
the Association, the Architectural Committee, or any of the
members thereof to recover any such damages.
Section 8.04. Notice of Noncompliance or Noncom-
pletion. Notwithstanding anything to the contrary contained
herein, after the expiration of the later of: (a) one (1)
year from the date of issuance of a building permit by muni-
cipal or other governmental authority for any such improvements
or, (b) one (1) year from the date of commencement of construc-
tion of such improvements within the Property, eaid improvements
52
1611
shall, in favor of purchasers and encumbrancers in good faith
and for value, be deemed to be in compliance with all provi-
sions of this Article VIII, unless notice of such noncompliance
and noncompletion, executed by the Architectural committee
or its designated representatives, shall appear of record in
the office of the County Recorder of San Diego County, Cali-
fornia, or unless legal proceedings shall have been instituted
to enforce compliance or completion.
Section 8.05. Rules and Regulations. The Archi-
tectural Committee may frore time to time, in its sole dis-
cretion, adopt, amend and repeal "rules and regulations int-^-
preting and implementing the provisions hereof.
Section 8.06. Variances. Where circumstances,
such as topography, location of property lines, location of
trees, or other matters require, the Architectural Committee,
-by the vote or written consent of a majority of the members
thereof, may allow reasonable variances as to any of the
covenants, conditions or restrictions contained in this Dec-
laration under the jurisdiction of such Committee, on such
terms and conditions as it shall require; provided, however,
that all such variances shall be in keeping with the rules
and regulations of the Association, the laws and ordinances
of the city of Carlsbad, the County of San Diego, and all
other applicable governmental laws or regulations.
53
1612
Section 6.07. Appointment and Designation. The
Architectural Coronvitttte »ay from time to time, by the vote
or written consent of a majority of its members, delegate
any of its rights or responsibilities hereunuer to one pr
more duly licensed architects or other qualified persons who
shall have full authority to act on behaif of said Architec-
tural Committee in all matters delegated.
Section 8.08. Review Fee and Address. Any plans
and specifications shall be submitted in writing for approval
together w^th a reasonable processing fee. The address of
the Architectural Committee shall be the principal place of
business of the Association or such other place as the Archi-
tectural Committee may from time to time designate in writing
to the Board of Directors. Such address shall be the place
for the submission of any plans and specifications and the
place where the current rules and regulations, if any, of
the Architectural committee shall be kept.
Section 8.09. Inspection. Any member or agent of
the Architectural Committee may, from time to time, at any
reasonable hour or hours, and upon reasonable notice, enter
and inspect any property subject to the jurisdiction of said
Architectural Committee as to its improvement or maintenance
in compliance with the provisions hereof.
1613
Section 8.10. General Provisions. The members of
the Architectural Committee shall not be entitled to any
compensation for services performed hereunder but may be
reimbursed for expenses reasonably incurred in connection
with their duties hereunder.
Section 8.11. Compliance with Governmental Laws.
Declarant, its successors and assigns, and all future Owners
of any Unit, and their successors and assigns by their accept-
ance of their respective deeds, and the Association each
agrae to be, and they hereby-are, bound by and subject to
all laws and ordinances of the City of Carlsbad and all other
applicable governmental laws or regulations. No building or
other structure or addition or change or alteration thereof
shall be commenced, constructed, erected, placed, altered,
maintained or permitted to remain on any of the real property
within the Property, including the Common Area, which is in
violation of any of the laws or ordinances of the City of
Carlsbad or any other applicable governmental laws or regula-
tions .
Section 8.12. Installation, Repair and Mainte-
nance Duties of Owners. Subject to the duty of the Associa-
tion to provide for maintenance of the Common Areas, each
Owner shall construct, maintain, repair, replace, finish and
restore or cause to be so maintained, repaired, replaced,
55
1614
finished and restored, at his sole cost and expense, the
improvements on his Unit in a clean, sanitary and attractive
condition, subject to the control and approval of the Archi-
tectural Committee. It shall further be tha duty of each
Owner to pay when due all charges for all utility services
which are separately metered to his Unit and the improve-
ments thereon, unless the Association is paying for such
services.
ARTICLE IX
BENEFICIARY PROTECTION
Section 9.01. Notwithstanding any other provisions
in this Declaration to the contrary, in order to induce insti-
tutional and other lenders and investors to participate in
the financing of the sale of Units in the Project, the follow-
ing provisions are addsd hereto (and to the extent these
added provisions conflict with any other provisions in this
Declaration, these added provisions shall control):
(a) No breach of the covenants, conditions or
restrictions herein contained, nor the enforcement of any
lien provisions herein, shall defeat or render invalid the
lien of any Deed of Trust made in good faith and for value,
provided that all of said covenants, conditions and restric-
tions shall be binding upon and effective against any Owner
whose title is derived through foreclosure or trustee's sale,
or otherwise.
56
(b) Each institutional holder of a First Deed of
Trust encumbering any Unit is entitled upon request to timely
written notification from the Association of any default by
the Owner of such Unit in the performance of such Owner's
obligations under this Declaration, the Articles or the Bylaws
which is not cured within sixty (60) days.
(c) Each institutional holder of a First Deed of
Trust encumbering any Unit which obtains title to such Unit
(a) oursuant to remedies provided in such Deed of Trust or
(b) by accepting a deed (or assignment) in lieu of foreclo-
sure in the event of default .by a Trustor, shall be exempt
from the "right of first refusal" contained in A*..icA.e XII
of the Declaration. Further, any such "right of first refusal"
shall not impair the rights of a First Beneficiary to enter
into a subsequent sale or lease of a Unit so acquired by the
Beneficiary.
(d) Each holder of a First Deed of Trust or third
party foreclosure purchaser which obtains title to a Unit
pursuant to the remedies provided in the Deed of Trust or to
the foreclosure of a Deed of Trust, shall take the. Unit free
of any claim for unpaid dues, assessments or charges against
che mortgaged Unit which accrue prior to the time such holder
or purchaser obtains title to such Unit (except for claims
for a share of such assessments or charges resulting from a
57
1616
reallocation of such dues, assessments or charges to all
Units, including the mortgaged Unit). The assessment lien
provided for herein shall be subordinate to the lien of
any First Deed of Trust now or hereafter placed upon any
Unit subject to assessment; provided, however, that such
subordination shall apply only to assessments which have
become due and payable prior to a sale or transfer of a Unit
pursuant to a decree of foreclosure or trustee's sale. Such
sale or transfer shall not release such Unit from liability
for any assessments thereafter becoming due, nor from the
lien of any such subsequent assessment.
(e) Unless at least two-thirds (2/3) of the first
Beneficiaries (based upon one vote for each First Deed of
Trust owned) or Owners (other than the Declarant) of Units
have given their prior written approval, the Association
^shall not be entitled to:
(i) by act or omission, seek to abandon or
terminate the Project, except as otherwise provided herein
in the event of substantial destruction by fire or other
casualty or in the event of a taking by condemnation or emi-
ent domain;
(ii) change the pro rata interest or obli-
gations of any Unit for the purpose of levying assessments
or charges or allocating distributions of hazard insurance
proceeds or condemnation awards;
58
(iii) partition or subdivide any Unit, except
as provided in the Article X;
(iv) by act or omission, seeX to abandon,
subdivide, encumber, sell or transfer the Common Area or
partition the Common Area except as provided for herein.
The granting of easements for public utilities or for other
public purposes consistent with the intended uses of the
Common Area by the Project shall not be deemed a transfer
within the meaning of this clause:
(v) use hazard insurance proceeds for losses
to any of the Project (whether to Units or to Common Area)
for other than repair, replacement or reconstruction, except
as otherwise provided by applicable law;
(vi) effectuate any decision of the Association
to terminate professional management and assume self manage-
ment of the Project.
(f) Each First Beneficiary shall have the right
to examine the books and records of the Association.
(g) The Assessments shall include an adequate
reserve fund for maintenance, repairs and replacement of the
Common Area and those portions thereof that must be replaced
on a periodic basis, and shall be payable in Regular Assess-
ments rather than by Special or Capital Improvement Assess-
ments .
59
1618
(h) AH taxes, assessments and charges which may
become liens prior to a First Deed of Trust under local law
shall relate only to individual Units, and not to the Project
as a whole.
(i) No provision in the Articles, the Bylaws, or
in this Declaration, shall be interpreted to entitle the Owner
of a Unit or any other party to priority over any First Bene-
ficiary with respect to the distribution to such Owner of
any insurance proceeds or condemnation awards for losses to
or a taking of Units and/or .Common Areas.
(j) Any agreement for professional management of
the Project, or any contract providing for services to be
provided by the Declarant, shall provide for termination by
either party without cause or payment of a termination fee
upon thirty (30) days written notice, and that the terms of
any such contract shall not exceed one (1) year, renewable
by agreement of the parties for successive one (1) year
periods.
(k) The Association shall, upon the request of
any institutional holder of a First Deed of Trust on a Unit,
(i) give written notice of all meetings of the Association
to such institutional holder and permit the institutional
holder to designate a representative to attend all such meet-
ings, and (ii) transmit to such institutional holder an annual
60
1619
financial statement of the Association within ninety (90)
days following the end of any fiscal year of the Association.
Section 9.02, No breach of any covenant contained
herein shall cause any forfeiture of title or reversion or
bestow any right of re-entry whatsoever, but in the event
that any one or more of these covenants shall be violated,
the Declarant, its successors and assigns, or the Association,
or any Owner of a Unit in the Project, may commence a legal
action in any court of competent jurisdiction to enjoin or
abate said violation, and/or to recover damages; provided,
that any such violation shall not defeat or render invalid
the lien of any Deed of Trust made in good faith and for
value as to said Unit. Said covenants shall be binding upon
and effective against any Owner of said Unit, whose title
thereto is acguired by foreclosure, trustee's sale or
otherwise.
ARTICLE X
PARTITION AND CHANGE IN UNITS
Section 10.01. Except as otherwise provided in
this Section, the Common Area shall remain undivided, and
there shall be no judicial partitions thereof. Nothing herein
shall be deemed to prevent partition of a co-tenancy in a
Unit.
Section 10.02. The Owner of a Unit may maintain a
partition action as to the entire Project as if the Owners
of all the Unics were tenants in common in the Project in
the same proportion as their interests in the Common Area,
and a court of competent jurisdiction shall order partition
under this Article only by sale of the entire Property, if
and only if one of the following circumstances should occur:
(a) More than two (2) years before the filing of
the action, the Project was damaged or destroyed so that a
material part' was rendered unfit for its prior use, and the
Project has not been rebuilt or repaired substantially to
its state prior to the damage or destruction.
(b) One-half (1/2) or more of the Project is des-
troyed or substantially damaged and at least two-thirds (2/3)
of the First Beneficiaries (based upon the respective Owner's
voting rights for each First Deed of Trust owned) or Owners
(other than the Declarant) oppose repair or restoration of
the Project.
(c) The Project has been in existence more than
fifty (50) years, is obsolete and uneconomical, and at least
two-thirds (2/3) of the First Beneficiaries (based upon the
respective Owner's voting rights for each First Deed of Trust
owned) or Owners (other than the Declarant) oppose repair or
restoration of the Project.
62
1621
Section 10.03. Declarant, for itself and on behalf
of each and every present and subsequent Owner of one or
more Units within the Project, hereby appoints the Associa-
tion as its and their attorney-in-fact to sell the entire
Project for the benefit of all of the Owners thereof upon
partition of the Project, which power shall: (i) be binding
upon all of the Owners, whether they assume the obligations
of these restrictions or not; (ii) be exercisable by a vote
of at least seventy-five percent (75%) of the voting power
of the Board of Directors; and' (iii) be exercisable only
after recordation of the certificate by the Board of Direc-
tors that said power is properly exercisable h"-Bunder, which
certificate shall be conclusive evidence thereof in favor of
any person relying thereon in good faith.
Section 10.04. No Owner may expand or contract
his Unit by sale or otherwise except as provided herein, and
no Owner may sell or otherwise dispose of more than fifty
percent (50%) of the Floor Space of his Unit unless he sells
or disposes of the entire Unit. In no event shall there be
created a new Unit within the Project; there shall remain at
all times twenty-two (22) Units in the Project. Any sale of
a portion of an Owner's Unit, as provided for herein, must
be to an adjacent and adjoining Owner in the Project. Plans
and specifications for any expansion or contraction of the
63
1622
Units shall be submitted to the Architectural Committee for
review and approval, and said Committee shall determine that
such expansion/contraction will not adversely affect any
other Owner in the Project. Upon such a sale, the number of
votes, the Assessments and the assigned parking spaces shall
increase or decrease accordingly as the Committee shall deter-
mine, and the new configuration of the Units shall be subject
to all terms and conditions of the Articles, the Bylaws and
this Declaration.
ARTICLE XI
DAMAGE OR LOSS TO IMPROVEMENTS
Section 11.01. Rastoration of Common Areas. Except
as otherwise provided in this Declaration, in the event of
any destruction of any portion of the Common Area and any
other improvements insured by the Association, it shall be
the duty of the Association to restore and repair the same
to its former condition, as promptly as practical. The pro-
ceeds of any insurance maintained pursuant to this Declaration
shall be used for such purpose, unless otherwise provided
herein. The Board of Directors shall be authorized to have
prepared the necessary documents to effect such reconstruction
as promptly as practical. The Common Area and all other
improvements shall be reconstructed or rebuilt substantially
in accordance wi^h the original construction plans if they
64
are available, with such changes as are recommended by the
Architectural Committee, subject to the provisions of Arti-
cle VIII. If the amount available from the proceeds of such
insurance policies for such restoration anu repair shall bi
less than the estimated cost of restoration and repair, a
Capital Improvement Assessment shall be levied by the Board
of Directors upon the Owners and their Units in order to
provide the necessary funds for such reconstruction over and
above the amount of any insurance proceeds available for
such purpose. , Capital Improvement Assessments shall be borne
by the Owners in the same proportions as Regular Assessments.
Section 11.02. Restoration of Units. In the event
of the damage or destruction of any portion of the Project
which is not owned by the Association, then it shall be the
duty of the Owner thereof, as soon as may be practical, to
repair and replace his Unit, or such portion thereof as will
render such damage or destruction indiscernible from the
exterior. Any. reconstruction, replacement or repair required
by this section shall be in accordance with the original
plans and specifications of the Project or plans and specifi-
cations approved by the Architectural Committee and any Bene-
ficiary of a deed of trust encumbering the Unit.
Section 11.03. Condemnation.
(a) In the event of a taking or partial taking of
any Unit by condemnation proceedings, the Owner of such Unit
65
1624
together with Ms Beneficiaries, shall have exclusive rights
to prosecute the proceedings for the respective taking awards.
(b) In the event of a taking or partial taking of
all or part of the Common Area by condemnation proceedings,
Declarant, so long as any Class B membership exists, and
thereafter the Association, shall have exclusive rights to
prosecute the proceedings for the respective taking awards
and shall be entitled to retain the proceeds of any such
award.
ARTICLE XII
RIGHT OF FIR5T REFUSAL
Section 12.0.1. To preserve the value of the Project,
the Association shall have the right to purchase any Unit on
the same terms and conditions as may be contained in any
bona fide offer that any Owner thereof may receive for the
purchase thereof or any offer or counter-offer that such
Owner may make for the sale thereof at any time of times.
Section 12.02. The Association ohall huve thirty
(30) days following actual receipt by it of notice ("Notice")
from any Owner of any such offer or counter-offer to exorcise
its right to purchase said Unit. The Notice ehnll opecify
the Unit affected, the terms and conditionii contained in
such offer or counter-offer and the namou and tiddreoBen of
the .offeree and offerer. The Association may exorcise said
1625
right after a vote of two-thirds (2/3) of the membership
entitled to vote to do so, by a written notice delivered to
said Owner or mailed to said Owner's address by certified or
registered mail, postage prepaid, within such thirty (30)
day period agreeing to purchase said Unit upon the same or
more favorable terms and conditions. Should the Association
fail within said period so to exercise its right, then the
Owner of said Unit shall have the right to sell such Unit to
any person, but only upon terms and conditions no less favor-
able to tne purchaser than those set forth in the Notice.
Section 12.03. This-right of first refusal shall
be exercisable only for the purpose of maintaining, stabiliz-
ing, preserving or protecting the value of the Units and the
Project. In no event shall this right be exercisable for
the purpose of discriminating against any person because of
such person's race, color, creed, religion, sex or national
ancestry or origin.
ARTICLE XIII
GENERAL PROVISIONS
Section 13 .0.1. Enforcement.
(a) The Association and any Owner, including Dec-
larant, shall have the right to enforce by proceedings at
law or in equity all covenants, conditions, restrictions,
easements, reservations, liens and charges now or hereafter
67
1620
imposed by this Declaration, as amended and supplemented,
the Articles and Bylaws, including without limitation the
right to prosecute a proceeding at law or in equity against
the person or persons who have violated or are attempting to
violate any of these covenants, conditions, restrictions,
easements, reservations, liens or charges to enjoin or pre-
vent them from doing so, to cause said violation to be remedied
or to recover damages for said violation.
(b) Should any Owner fail to comply with any of
the provisions of this Declaration and should any such failure
of an Owner continue for a period of thirty (30) days follow-
ing written notice of such failure from the Association to
the Owner (unless different time periods are therein stated),
the Association shall have the right, but not the duty, to
correct any such noncompliance by an Owner, and the cost
thereof shall be borne by such Owner; provided, however,
that if such costs are not paid to the Association within
thirty (30) days after the Association has furnished a state-
ment therefor, the Association shall have the right, but not
the duty, to levy a Special Assessment against such Owner to
cover such costs of maintenance and repair or correction, of
such noncompliance. No one or more failures or refusals by
the Association to accomplish such compliance which the Owner
shall have failed to perform shall be deemed a waiver of the
right in the Association to perform such work at a later
time as to the same or different work or compliance.
68
1627
(c) "The result of every action or omission whereby
any covenant, condition, restriction, easement, reservation,
lien or charge herein contained is violated in whole or in
part is hereby declared to be and to constitute a nuisance,
and every remedy allowed by law or equity against an Owner,
either public or private, shall be applicable against every
such result and may be exercised by the Association or any
Owner, including Declarant.
(d) In any legal or equitable proceeding (includ-
ing arbitration) for the enforcement or to restrain the vio-
lation of these covenants, conditions, restrictions, easements,
reservations, liens or charges or any provisions hereof *he
laws ox the State of California shall be applicable and the
losing party or parties shall pay the attorneys' fees of the
prevailing party or parties as additional damages. All
remedies provided herein or at law or in equity shall be
cumulative and not exclusive.
(e) Either party to a dispute may elect to have
any dispute not involving interim equitable relief submitted
to arbitration by giving written notice thereof at any time,
unless a civil action or foreclosure proceeding is then pend-
ing. If a valid notice of arbitration is given, then within
thirty (30) days of such notice, each party shall select one
arbitrator, who will in turn select a third arbitrator in
1628
the event they do not agree on a decision. Except as provided
above, the arbitration shall be conducted in accordance with
the rules of the American Arbitration Association.
(f) Failure by the Declarant, the Association or
by an Owner to enforce any covenant, condition, restriction,
easement, reservation, lien or charge herein contained shall
in no event be deemed a waiver of the right to do so there-
after. Nothing herein contained shall be deemed to require
Declarant to enforce any covenant, condition, restriction,
easement, reservation, lien, charge or provision hereof.
Section 13.02. Severability. Invalidation of any
one of these covenants, conditions or restrictions by judgment
or court order shall in no way affect any other provisions
which shall rsmain in full force- and effect.
Section 13.03. Term. The covenants, conditions
and restrictions of this Declaration shall run with and bind
the Units arid shall inure to the benefit of and be enforce-
able by the Association or the Owner of any Unit subject to
this Declaration, their respective legal representatives,
heirs, successors and assigns, for a term of fifty-five (55)
years from the date this Declaration is recorded, and shall
thereafter remain in effect for successive ten (10) year
periods unless terminated in writing, signed by a majority
of the Owners (in number and in Floor Space) at least two
(2) years before the expiration date.
70
Section 13.04. Construction. The provisions of
this Declaration shall be liberally construed to effectuate
its purpose of creating a uniform plan for the development
of a commercial project, on the Property. The article and
section headings have been inserted for convenience only and
shall not be considered or referred to in resolving questions
of interpretation or construction.
Section 13.05. Amendments. This Declaration of
Covenants, conditions and Restrictions may be amended only
by an instrument in writing -signed by not less than seventy-
five percent (75%) of the voting power of the membership of
the Association, and in conformance with all applicable laws,
ordinances and regulations; provided, however, that this
Declaration may be amended by Declarant's independent action
at any time so long as Declarant owns any Unit in the Project,
and such amendment does not cause impairment of the use of
the Property. Such amendment may include but is not limited
to such normal and necessary purposes in the ordinary course
of business as installation of cable or other communications
lines, utilities, rights of way, and any other purpose which
in Declarant's sole judgment is determined to benefit the
Property or Project. In the event a Unit is owned by more
than one Owner, .any one of the Co-Owners may sign such instru-
ment in writing on behalf of all Co-Owners upon presentation
71
1630
of a power-of-attorney or other satisfactory evidence of
authorization. Any amendment must be properly recorded in
the Office of the San Diego County Recorder. In addition,
any amendment relating to architectural standards, use of
the Property or signs shall require the written consent of
the City of Carlsbad.
Section 13.06. Singular Includes Plural. Whenever
the context of this Declaration requires same, the singular
shall include the plural and the masculine shall include the
feminine.
Section 13.07. Nuisance. The results of every
act or omission, whereby any provision, condition, restriction,
covenant, casement or reservation contained in this Declara-
tion is violated in whole or part, is hereby declared to be
and constitutes a nuisance, and every remedy allowed by law
or equity against a nuisance, either public or private, shall
be applicable against every such result and may be exercised
by the Architectural committee, the Association or any Owner.
Each remedy shall be deemed cumulative and not exclusive.
Section 13.08. Mergers and Consolidations. Upon
a merger or consolidation of the Association with another
association, its properties, rights and obligations may be
transferred to the surviving or consolidated association or,
alternatively, the properties, rights and obligations of
72
1631
another association may be added to the properties, rights
and obligations of the Association as a surviving corporation
pursuant to a merger. The surviving or consolidated associa-
tion may administer the covenants, conditions and restrictions
established by this Declaration, together with the covenants,
conditions and restrictions established upon any other prop-
erty, as one general plan and scheme.
Section 13.09. Applicability of Governmental
Regulations. The covenants, conditions and restrictions
contained herein are separate, and distinct from any zoning,
building or other law, ordinance, rule or regulation of the
City of Carlsbad, the
County of San Diego, or any governmental authority having
jxirisdiction over the Property, which law, ordinance, rule
or regulation now or in the future may contain different
requirements from or in addition to those contained herein
or which may prohibit uses permitted herein or permit uses
prohibited herein. In the event of any conflict between the
provisions hereof and the provisions of any such law, ordi-
nance, rule or regulation, the Owner must first comply with
these covenants, conditions and restrictions unless such
compliance would result in a violation of such law,.ordi-
nance, rule or regulation, in which case, upon a finding
that compliance herewith would result in such violation, the
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163.2
Architectural Committee shall waive any such covenant, condi-
tion or restrictions to the extent the results in such viola-
tion, and in connection therewith, the Architectural Committee
may impose such additional covenants, conditions and restric-
tions as may be necessary to carry out the intent of this
Declaration.
IN WITNESS WHEREOF, Declarant has executed this
Instrument the day and year first hereinabove written.
CARLSBAD INDUSTRIAL ASSOCIATES, LTD.,
a California limited partnership
By Gefteral Partner
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1633
ACKNOWLEDGEMENT
State of California )
) ss.
County of Los Angeles )
On this __Sth day of Man , 1982, before
me, a notary public in and for said County and State, parson-
ally appeared Richard i. Darling , known to me to
be one of the partners of the partnership that executed the
within instrument, and acknowledged to me that such partner-
ship executed the same.
OFFICIAL SEAL |>
SHARON SF.ESE f
NOTARY PUSLIC - CALIfORNIA j!
LOS APGrUS COUNTY >•.
My coram. .:rjire$ DEC 14, liSZ
Notary Public
1634
SXBIBIf
Lot 1 of CARLSBAD TRflCT NO. 81-38, in the City of Carlsbatf, County of
San Diego, Stat' of California, according to ffap thereof No. 1044?,
filed In the Office of the County Recorder of San Diego County August 3, 1982.
EXCEPTING THEREFROM all oil, gas and mineral lights as contained in the
deed dated January 22, 1958 from Caxlsbsd Properties, Co-Partnership to
County of San Diego, a political Subdivision of the State of California,
recorded t'sbxuary 17, 1958 as Document So. 24786 in Book 69S2, page 351
of Official Swords, which recites.- "Reserving unto the grantors herein,
its heirs, executors, administrators, successors and assigns fot a period
of fifty years from the date hereof all oil, gas and mineral rights in
property herein described, without, however the light to drill, mine,
explore and operate through the surface or the upper 100.00 feet of the
subsurface of said property or otherwise in such manner so a* to interfere
with the use or proposed use of the property by the grantee, its successors
or assigns or in any manner as to endanger the safety of any airport or
building or structure that may be constructed on said property or proposed
to be constructed on said property.