HomeMy WebLinkAboutCT 85-17; College Business Park; Tentative Map (CT)RECORDED REQUEST OF FTRST Tfflt OB,
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Recording Requested By:
City of Carlsbad
Planning Department
2975 Las Palmas
Carlsbad, CA 92009
And When Recorded Mail to:
City of Carlsbad
Planning Department
2975 Las Palmas
Carlsbad, CA 92009
With a Copy to:
Huntington Beach Company
Attn.: Law Department
18300 Von Karman, Suite 850
Irvine, CA 92715
2230
DOC 8 1991-0646772
13-DEC-1991 12=20 Ph
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
ANNETTE EUANS, COUNTY RECORDER
RF: 73.00 FEES: 215.00
AF: 141.00
Iff: 1.00
Space Above For Recorder's Use
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
COLLEGE BUSINESS PARK
CITY OF CARLSBAD
COUNTY OF SAN DIEGO
STATE OF CALIFORNIA
2231
Table of Contents
ARTICLE 1
DEFINITIONS 3
1.1 "Architect" 3
1.2 "Architectural Review Committee" 3
1.3 "Articles" 3
1.4 "Assessment" 3
1.5 "Association" 3
1.6 "Board" or "Board of Directors" 4
1.7 "BusinessPark" 4
1.8 "Bylaws" 4
1.9 "CC&Rs" 4
1.10 "City" .. 4
1.11 "Committee" 4
1.12 "Common Areas" 4
1.13 "Common Expenses" 5
1.14 "Conceptual Landscape Element" 5
1.15 "Declarant" 5
1.16 "Declaration" 5
1.17 "Desilting/Detention Basins" 5
1.18 "Drainage Easement Areas" 5
1.19 "Final Map" 6
1.20 "Gross Floor Area" 6
1.21 "Hillside Areas" 6
1.22 "Hillside Ordinance" 6
1.23 "Improvements" 6
1.24 "Lessee" 7
1.25 "Lot" 7
1.26 "Maintenance and Operation Account" 7
1.27 "Maximum Building Area" 7
1.28 "Medians" 7
1.29 "Member" 7
1.30 "Mortgage" 7
1.31 "Mortgagee" 7
1.32 "Occupant" 7
1.33 "Open Space Lots" 8
1.34 "Owner" 8
1.35 "Parcourse" , 8
1.36 "Parkway Areas" 8
1.37 "Person" 8
1.38 "PM Zone" 8
1.39 "PM Zone Regulations" 9
1.40 "Preservation Easement" 9
1.41 "Project Documents" 9
1.42 "Property" 9
1.43 "Record" 9
1.44 "Reserve Account" 9
1.45 "Rules and Regulations" 9
1.46 "Signage Manual" 9
1.47 "Specific Plan" 9
1.48 "Street Setback Area" 10
1.49 "Tract Map" 10
ARTICLE 2
THE ASSOCIATION 10
2.1 Organization 10
2.2 Duties 10
2.2.1 Assessments 10
2.2.2 Common Areas 10
2.2.3 Discharge of Liens 10
2.2.4 Insurance 11
2.2.5 Payment of Expenses 11
2.3 Powers 11
2.3.1 Acquisition of Property 11
2.3.2 Assessments, Liens 11
2.3.3 Borrowing 11
2.3.4 Contracts 12
2.3.5 Delegation 12
2.3.6 Enforcement 12
2.3.7 Manager 12
2.3.8 Security Services 12
2.3.9 Variances 13
2.4 Initial Board of Directors 13
2.5 Subsequent Board of Directors 13
2.6 Personal Liability 13
2.7 Annual Membership Meetings 14
ARTICLE 3
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 14
3.1 Membership 14
3.2 Transfer of Membership 14
3.3 Voting 14
3.4 Joint Ownership 15
3.5 Administration and Compliance 16
ARTICLE 4
ARCHITECTURAL REVIEW COMMITTEE 16
4.1 Organization; Members 16
4.2 Terms of Office 16
4.3 Duties and Appeals 16
ARTICLE 5
REVIEW OF IMPROVEMENT PLANS 17
5.1 Purpose of Improvement Regulations 17
5.2 Required Review of Plans 17
5.2.1 General Requirements 18
5.2.2 Master Plan 18
5.2.3 Preliminary Plan 19
5.2.4 Final Plan 20
5.3 Modifications to Plans and Improvements 21
5.4 Basis for Disapproval 21
5.5 Development Requirements of City 23
5.6 Decision of the Board 23
5.7 Time for Approval or Disapproval 24
5.8 Submission of Plans to City or Government 24
5.9 Proceeding with Work 24
5.10 Completion of Work 25
5.11 Estoppel Certificate 25
5.12 No Liability for Approval Errors 25
ARTICLE 6
IMPROVEMENT STANDARDS AND LIMITATIONS 26
6.1 Drainage 26
6.2 Excavation and Underground Utilities 26
6.3 Landscaping and Irrigation 26
6.4 Maximum Building Area 27
6.5 Mechanical Equipment; Ductwork, Etc 28
6.6 Parking Areas 29
6.7 Setback Lines 30
6.8 Signs 30
6.9 Slope Areas 31
6.10 Subdivision of Lots 31
6.11 Storage and Loading Areas 31
6.12 Utilities 32
6.13 Waste Disposal 32
ARTICLE 7
REGULATION OF OPERATIONS AND USES 32
7.1 Permitted Uses 32
7.2 Prohibited Uses 33
7.3 Nuisances 35
7.4 Compliance with Laws, Regulations, Permits or Certificates of Occupancy 35
7.5 Hazardous Materials 35
7.6 Necessary Permits 37
7.7 Access 37
7.8 Rules and Regulations 37
ARTICLES .
RESERVATIONS OF EASEMENTS AND RIGHTS 38
8.1 Easements Over Common Areas 38
8.2 Easements of designated Hillside Areas 39
8.3 Transfer of Easement Rights 39
8.4 Right of Entry 40
8.4.1 Common Area 40
8.4.2 Hillside Area 40
8.5 Utility Easements 40
8.6 Drainage 41
8.7 Easements Reserved and Granted 41
ARTICLE 9
MAINTENANCE AND USE OF COMMON AREAS 42
9.1 Management and Maintenance by Association 42
9.2 Maintenance of Open Space Lots 43
9.2.1 Open Space Lots 43
9.2.1 Hillside Areas 43
9.3 Maintenance Caused by Owners, Etc 44
9.4 Desilting/Detention Basins 44
9.5 Driveways 45
9.6 Common Area Restrictions 45
9.7 Signs : 45
9.8 Assessment District; Dedication of Common Areas 45
9.9 Destruction, Restoration 45
ARTICLE 10
FUNDS AND ASSESSMENTS 46
10.1 Agreement to Pay Maintenance Assessments; Creation of Lien and
Obligation 46
10.2 No Waiver by Non-Use 46
10.3 Purpose of Assessments 47
10.4 Budgets 47
10.5 Lots Subject to Assessment; Allocation of Assessments 47
10.6 Regular Assessments 48
10.6.1 Purpose 48
10.6.2 Date of Commencement of Regular Assessments 48
10.6.3 Establishment 48
10.6.4 Payment of Assessments 48
10.7 Special Assessments 48
10.7.1 Purpose 48
10.7.2 Establishment 49
10.7.3 Time and Manner of Payment 49
10.8 Reimbursement Assessment 49
10.9 Non-payment of Assessments 50
10.10 No Offsets 50
10.11 Transfer of Property 50
10.12 Failure to Fix Regular Assessments 50
10.13 Association Funds 51
10.14 Books of Account 51
10.15 Annual Statement 51
ARTICLE 11
MAINTENANCE, RESTORATION OF LOTS 52
11.1 Duty to Maintain 52
11.2 Lateral Support 52
11.3 Damage and Destruction; Duty to Rebuild 52
11.4 Insurance Obligation of Owners 52
11.5 Obligation to Pay Taxes, Liens 53
11.6 Performance By Board 53
ARTICLE 12
ENFORCEMENT .....: 54
12.1 Violation, a Nuisance 54
12.2 General Remedies 54
12.2.1 Rightto Enforce 54
12.2.2 Inspection; Abatement by Declarant, Association 54
12.2.3 Owner's Remedies 55
12.3 Collection of Assessments; Liens 55
12.3.1 Rightto Enforce 55
12.3.2 Creation of Lien 56
12.3.3 Notice of Default; Foreclosure 56
12.3.4 Subordination of the Lien to First Mortgages , 57
12.4 Interest 57
12.5 Attorneys' Fees 57
12.6 Cumulative Remedies; No Waiver 57
12.7 Enforcement by City 57
ARTICLE 13
TERM, TERMINATION, AMENDMENT 59
13.1 Term of Declaration 59
13.2 Amendments 59
ARTICLE 14
GENERAL PROVISIONS 60
14.1 Assignment of Declarant's Rights and Duties 60
14.2 Common Interest Subdivision 60
14.3 Constructive Notice and Acceptance 61
14.4 Declarant's Reserved Rights 61
14.5 Exhibits 61
14.6 Governing Law 61
14.7 Headings 61
14.8 Mortgage Protection 61
14.9 Mutuality, Reciprocity; Runs With Land 62
14.10 Notices 62
14.11 Notification of Sale 62
14.12 Number; Gender 63
14.13 Severability 63
14.14 Waiver 63
EXHIBIT "A"
FINAL MAP; LOT CONFIGURATION OF PROPERTY : 66
EXHIBIT "B"
LOT CONFIGURATION,
OPEN SPACE AREAS AND
INITIAL COMMON AREAS 67
DECLARATION OF
COVENANTS. CONDITIONS AND RESTRICTIONS
FOR
COLLEGE BUSINESS PARK
THIS DECLARATION of COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR COLLEGE BUSINESS PARK ("Declaration") is made as of
NOVEMBER 26 _ , 199i by HUNTINGTON BEACH COMPANY, a
California corporation ("Declarant"), with reference to the following facts:
RECITALS
A. Declarant is the owner of real property ("Property") located in
the City of Carlsbad, County of San Diego, California, more particularly described as:
Lots 1 through 26 of Carlsbad Tract No. 85-17, in the City of Carlsbad,
County of San Diego, State of California, according to Map No.
1 2^0.3 filed in the Office of the County Recorder of San Diego
County On December 13
A copy of Map No. 25.__ ("Final Map") indicating the
configuration of the Lots included in the Property is attached hereto as
Exhibit "A."
B. Declarant intends to develop the Property as a business and
industrial complex to be generally known as "College Business Park" ("Business
Park"), and to sell, lease, or otherwise convey portions of the Property to various
individuals and entities for purposes compatible with such development.
C. By this Declaration, Declarant intends to impose upon the
Property mutually beneficial restrictions, in accordance with a general plan of
improvement, in order to establish and provide a means of maintaining a high
quality environment for the benefit of Declarant and all future owners of the
Property.
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DECLARATION
NOW, THEREFORE, Declarant hereby declares that the Property and
each portion thereof is and shall be owned, conveyed, mortgaged, encumbered,
leased, developed, improved, used and occupied subject to this Declaration and the
limitations, covenants, conditions, restrictions, easements, liens and charges set forth
herein, all of which are equitable servitudes and shall run with the title to the land
and shall be binding on and inure to the benefit of all parties having or acquiring
any right, title or interest in the Property or any portion thereof and their respective
heirs, successors and assigns. The purpose of this Declaration is to enhance and
protect, and provide a means of controlling and maintaining, the value, desirability
and attractiveness of the Property and every portion thereof, for the benefit of
Declarant and every owner, in accordance with a general plan of subdivision,
development and improvement.
ARTICLE 1
DEFINITIONS
1.1 "Architect" shall mean a person holding a certificate to practice
architecture in the State of California under the authority of Division 3, Chapter 3 of
the California Business & Professions Code or any successor legislation.
1.2 "Architectural Review Committee" or "Committee" shall mean
the Architectural Review Committee created pursuant to Article 4.
1.3 "Articles" shall mean the Articles of Incorporation of the
Association which are or shall be filed in the Office of the California Secretary of
State, as amended and supplemented from time to time.
1.4 "Assessment" shall mean certain costs of the Association to be
paid by the Owner of each Lot, as determined by the Board pursuant to Article 10.
1.5 "Association" shall mean the College Business Park Owners
Association, a California nonprofit mutual benefit corporation, its successors and
assigns, established pursuant to these CC&Rs.,
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B-2260 3 11/05/91
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1.6 "Board" or "Board of Directors" shall mean the Board of
Directors of the Association, as the same may be constituted from time to time.
1.7 "Business Park" shall mean the Property described in Recital A,
including all facilities and Improvements located thereon, which shall constitute the
real property subject to the Specific Plan.
1.8 "Bylaws" shall mean the Bylaws of the Association, as amended
and supplemented from time to time.
1.9 "CC&Rs" shall mean this Declaration of Covenants, Conditions
and Restrictions for COLLEGE BUSINESS PARK, as the same may be amended from
time to time.
1.10 "City" shall mean the City of Carlsbad, California, a municipal
corporation.
1.11 "Committee" shall mean the Architectural Review Committee
created pursuant to Article 4.
1.12 "Common Areas" shall mean the Open Space Lots, the Parkway
Areas, the Medians, the Drainage Easement Areas, the Desilting/Detention Basins,
the Parcourse, landscaped areas, bus shelters, special paving treatments, and any
other portion of the Property or off-site areas over which all Owners and/or the
Association have rights or obligations of use, beneficial enjoyment or maintenance
pursuant to the terms of this Declaration or the conditions of approval of the Final
Map, the Specific Plan, or any other governmental approval affecting the Property.
The location of the initial Common Areas within the Property subject to this
Declaration are identified on Exhibit "B." The Common Areas indicated on Exhibit
"B" may be modified from time to time to change the location or configuration
thereof or to reflect the requirements of the City or other governmental authorities
by recordation of a Supplemental Declaration executed by Declarant and recorded
in the Official Records of San Diego County, California.
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B-2260 4 11/05/91
**3S
1.13 "Common Expenses" shall mean the actual and estimated
expenses of: (a) maintaining and operating the Association; (b) maintaining and
operating the Common Areas and the Improvements located thereon, the Hillside
Areas and any Improvements, facilities or services which are provided to all Owners,
but the cost of which, in the reasonable judgment of Declarant, cannot reasonably
be segregated for each Owner; (c) exercising the powers and performing the duties
of the Association and the Board under this Declaration and the other Project
Documents; and (d) maintaining any reasonable reserves for such purposes as
determined by the Board.
1.14 "Conceptual Landscape Element" shall mean the landscape plans
and criteria for the Business Park prepared by Declarant and approved by the City
pursuant to the Specific Plan, as amended and supplemented from time to time.
1.15 "Declarant" shall mean Huntington Beach Company, a California
corporation, and successors and assigns of Huntington Beach Company or a successor
Declarant if: (a) such successors and assigns hold or acquire record fee title to all or
any portion of the property and (b) Huntington Beach Company or a successor
Declarant executes and records a document which expressly names such party as a
successor declarant and assigns the rights and duties of declarant hereunder.
1.16 "Declaration" shall mean this Declaration of Covenants,
Conditions, Covenants and Restrictions for College Business Park , as amended or
supplemented from time to time.
1.17 "Desiltinq/Detention Basins" shall mean the desilting/detention
basins constructed in connection with development of the Property within the Open
Space Lots, the roads providing access between the Property and such basins, and
any storm drainage facilities and erosion control landscaping installed in connection
with such access roads.
1.18 "Drainage Easement Areas" shall mean all portions of the
Property which are subject to drainage easements granted to the City or other
governmental or utility entity or which are designated as "drainage easement" on
any subdivision map or parcel map recorded for all or any portion of the Property.
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The Drainage Easement Areas are located within areas designated as Common Areas
on Exhibit "C."
1.19 "Final Map" shall mean the final subdivision map for College
Business Park, filed in the Office of the Recorder of San Diego County, California, on
, 1990, as Map No. including all conditions of
City approval thereof, as the same may be amended from time to time. The
configuration of the Lots shown on the Final Map is depicted on Exhibit "A"
attached hereto.
1.20 "Gross Floor Area" shall mean, with respect to any Improvements
on the Property, the gross floor area computed in accordance with the definition
thereof set forth in the Carlsbad Municipal Code and utilized by the City to
determine the gross floor area permitted under the Specific Plan, as amended from
time to time.
1.21 "Hillside Areas" shall mean those designated areas of
undeveloped slope within some Lots. The location of the designated Hillside Areas
within the Property initially subject to this Declaration is generally depicted on
Exhibit "B." The designated Hillside Areas within the Lots shall be maintained by the
Association pursuant to this Declaration, the Hillside Ordinance, and the Specific
Plan; The Association shall have an easement over such areas as required by the
Hillside Ordinance and as further described in Article 8.
1.22 "Hillside Ordinance" shall mean the Hillside Development
Guidelines, and the Hillside Development Regulations (Chapter 21.95) of the
Carlsbad Municipal Code.
1.23 "Improvements" shall mean buildings, accessory structures,
underground installations, slope and grade alterations, roads, curbs, driveways,
gutters, parking areas, loading areas, sidewalks, utilities, fences, walls and barriers,
stairs, decks, poles, signs, hedges, plantings, planted trees and shrubs, irrigation
systems, storm drains, drainage facilities, and all other structures or landscaping
improvements of any kind, whether above or below the land surf ace.
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1.24 "Lessee" shall mean the owner of a leasehold interest in all or a
portion of the Business Park.
1.25 "Lot" shall mean each of Lots 1 through 26 of the Final Map. If
any Lot is resubdivided or if a merger or lot line or boundary adjustment affecting
two or more Lots is recorded, then each of the legal lots thus created shall be
deemed to be a Lot.
1.26 "Maintenance and Operation Account" shall mean an account
into which the Board shall deposit funds for maintenance and operation
assessments, as described in Section 10.13.
1.27 "Maximum Building Area" shall mean the maximum Gross Floor
Area of permitted development allocated to the Property and to each Lot pursuant
to the Specific Plan, and as specified in the Annexation of Declaration for each Lot,
as modified from time to time by Declarant pursuant to Section 6.4. The Maximum
Building Area shall be established without regard to, and shall not be modified to
conform to, the actual Gross Floor Area constructed on a Lot.
1.28 "Medians" shall mean real property located within the rights-of-
way of any public street, between paved portions of the street or within cul-de-sac
areas, which have been or will be improved by Declarant for landscape purposes,
including any irrigation systems or other appurtenances thereon.
1.29 "Member" shall mean every Owner who is a Member of the
Association pursuant to Article 3.
1.30 "Mortgage" shall mean any duly recorded mortgage or deed of
trust encumbering one or more Lots in the Business Park.
1.31 "Mortgagee" shall mean a holder of a mortgage, including a
beneficiary under a deed of trust.
1.32 "Occupant" shall mean any Person who has the legal right to
occupy a portion of the Business Park and is not an Owner or Lessee.
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1.33 "Open Space Lots" shall mean the real property described as Lots
24, 25, and 26 of the Final Map, as shown on Exhibit "A;" It is anticipated that the
Open Space Lot s will be conveyed to the Association.
1.34 "Owner" shall mean the record owner, whether one or more
Persons, of fee simple title to any Lot or Lots within the Property, including
Declarant, but excluding those holding such an interest merely as security for the
performance of an obligation.
1.35 "Parcourse" shall mean those areas depicted on Exhibit B, and
more particularly described on Sheets L-2 and L-3 of the Irrigation and Landscape
Plans for CT-85-17 approved by the City of Carlsbad on , 1991, which
Parcourse shall be maintained as part of the Common Area by the Association
pursuant to this Declaration and the Specific Plan, and the Association will have an
easement over such area as described in Article 8.
1.36 "Parkway Areas" shall mean (a) those areas within the rights-of-
way of each public street through or adjacent to the Property which are located
between the curb and the property lines of the adjacent Lots, and (b) those areas
located within a ten foot width measured from the property line of the Lots adjacent
to said rights-of-way of each public street through or adjacent to the Property. The
location of the Parkway Areas within the Property initially subject to this Declaration
is generally depicted on Exhibit "B." The Parkway Areas within the public rights-of-
way shall be maintained by the Association pursuant to the Specific Plan. The
Parkway Areas located within the Lots shall also be maintained by the Association,
and the Association shall have an easement over such areas as further described in
Article 8.
1.37 "Person" shall mean a natural person, a corporation, a
partnership, a trustee, or other legal entity.
1.38 "PM Zone" shall mean the "Planned Industrial" Zone
designation applied to the Property, as defined in Chapter 21.34 of the Carlsbad
Municipal Code, the Zoning Ordinance of the City, as amended and supplemented
from time to time.
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1.39 "PM Zone Regulations" shall mean the zoning regulations
adopted by the City for property with the PM Zone designation, as set forth in the
City's Zoning Ordinance, as amended and supplemented from time to time.
1.40 "Preservation Easement" shall mean the preserved area of
approximately 3 acres of coastal sage scrub located on Lot 2.
1.41 "Project Documents" shall mean this Declaration, the Exhibits
attached hereto, the Articles and Bylaws, and the Rules and Regulations, all as
amended or supplemented from time to time.
1.42 "Property" shall mean the entire parcel of real property legally
described in Recital A, including all facilities and Improvements located thereon,
which is hereby subjected to this Declaration.
1.43 "Record" shall mean, with respect to any document, the filing
and recordation of said document in the Office of the County Recorder of the
County of San Diego, California.
1.44 "Reserve Account" shall mean an account into which the Board
shall deposit funds for contingencies, repairs and replacements, as described in
Section 10.13.
1.45 "Rules and Regulations" shall mean those Rules and Regulations
prepared by Declarant to regulate the use operation, management use and
maintenance of the Property, as further described in Section 7.8, as such Rules and
Regulations may be amended or supplemented by the Board.
1.46 "Signage Manual" shall mean the manual prepared by Declarant
setting forth the standards for permissible signs in the Business Park, as approved by
all applicable governmental authorities.
1.47 "Specific Plan" shall mean Specific Plan No. 199, approved for the
Property including the Business Park, by the Planning Commission of the City of
Carlsbad on October 1, 1986 and the conditions of City approval thereof, as
amended and supplemented from time to time.
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1.48 "Street Setback Area" shall mean the setback area on each Lot
adjacent to public streets, as required under the terms of the Specific Plan and the
underlying zoning.
1.49 "Tract Map" shall mean Carlsbad Tract No.85-17, approved by
the City, which covers the Property and other real property adjacent thereto, as
shown on Exhibit "B" attached hereto.
ARTICLE 2
THE ASSOCIATION
2.1 Organization. The Association is a California nonprofit mutual
benefit corporation, charged with the duties and empowered with the rights set
forth herein, in the Bylaws and in the Articles.
2.2 Duties. The Association shall be charged with the duties set forth in
the Articles, the Bylaws and this Declaration, including, but not limited to, the
following:
2.2.1 Assessments. The Association shall fix, levy, collect and
enforce Assessments as further described in Article 10.
2.2.2 Common Areas. The Association shall maintain, repair,
replace, restore, operate, control and manage the Common Areas and all facilities,
Improvements and equipment located thereon, as further described in Article 9,
except to the extent such maintenance has been assumed by a governmental agency
or public or private utility, and except as otherwise set forth herein.
2.2.3 Discharge of Liens. The Association shall discharge by
payment, if necessary, any lien against the Common Areas or any portion thereof,
and, if placed thereon as a result of the action of an Owner or Owners, assess the
cost thereof as a Reimbursement Assessment (as defined in Section 10.8) to the
Owner or Owners responsible therefor, provided, however, such Owner or Owners
shall be given notice at least fifteen (15) days prior to any proposed discharge by the
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B-2260 10 11/05/91
Association and the reasons therefor, and the opportunity to be heard by the
Association, either orally or in writing, at least five (5) days before the proposed
discharge and before a decision to discharge is made.
2.2.4 Insurance. The Association shall maintain such policy or
policies of insurance as it deems necessary, to the extent available at a reasonable
cost, including, but not limited to: (a) all risk insurance covering all or any
appropriate portion of the Common Areas; (b) comprehensive general public
liability insurance in the amount of at least $3,000,000 (Three Million Dollars) per
occurrence, insuring Declarant, the Association, the Board, the Committee and the
Owners against all liability arising out of the ownership, use and maintenance of the
Common Areas; (c) worker's compensation insurance, as required by law;
(d) directors' and officers' errors and omissions policies, in form and amount
determined by the Board; and (e) insurance against any other risk which the Board
considers appropriate.
2.2.5 Payment of Expenses. The Association shall pay all
expenses and obligations incurred by the Association in the conduct of its business,
including, without limitation, all licenses, taxes or governmental charges levied or
imposed against the property of the Association.
2.3 Powers. The Association shall have the following powers, rights
and duties, in addition to those provided elsewhere in this Declaration, the Articles
and the Bylaws:
2.3.1 Acquisition of Property. The Association shall have the
power to acquire (by gift, purchase or otherwise), own, hold, improve, operate,
maintain, convey, sell, lease, transfer, dedicate for public use or otherwise dispose of
real or personal property in connection with the affairs of the Association.
2.3.2 Assessments, Liens. The Association shall have the power
to levy and collect assessments pursuant to Article 10 and to perfect and enforce
liens in accordance with the provisions of Article 12.
2.3.3 Borrowing. The Association shall have the power to
borrow funds to pay costs of operation, secured by assessment revenues due for
College Business Park
B-2260 11 ' • 11/05/91
succeeding years or by assignment or pledge of rights against delinquent Owners;
provided, however, that the vote of Owners holding a majority of the total voting
power of the Owners shall be required to borrow, during any calendar year, in excess
of Ten Thousand Dollars ($10,000) multiplied by the number of Lots included in the
Property from time to time (excluding Open Space Lots). Such borrowing may be
from Declarant if Declarant agrees to advance funds; and, in such event, Declarant
shall receive, as interest, no more than the published Bank of America Reference
Rate plus one percent (1 %) as interest.
2.3.4 Contracts. The Association shall have the power to
contract for goods and/or services for the Common Areas or for the performance of
any power or duty of the Association, subject to limitations set forth elsewhere in
this Declaration, the Articles or the Bylaws. The Association's power to contract shall
include, but is not limited to, the right to enter into agreements with one or more
other owners' associations for the purposes described in this Section.
2.3.5 Delegation. The Association shall have the power to
delegate its authority and powers to committees, officers or employees of the
Association.
2.3.6 Enforcement. The Association shall have the authority to
enforce this Declaration pursuant to Article 12.
2.3.7 Manager. The Association shall have the authority to
employ a manager or other Person and to contract with independent contractors or
managing agents to perform all or any portion of the duties and responsibilities of
the Association, provided that any contract with a manager or managing agent shall
not exceed a one (1) year term and may provide for the right of the Association to
terminate the contract immediately for cause and otherwise on thirty (30) days'
written notice. The Association may contract with Declarant or an affiliate of
Declarant.
2.3.8 Security Services. The Association shall have the power to
provide, or to contract for the provision of, security patrols or other security
measures, or both, as the Board deems necessary.
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2.3.9 Variances. The Board, acting for the Association, shall
have the power to grant reasonable variances from the provisions of this Declaration
from time to time, as the Board may deem, in its sole discretion, to be in the best
interests of the Business Park, in order to overcome practical difficulties and to
prevent unnecessary hardship in the application of the provisions contained herein,
provided, however, that: (a) each variance does not materially injure any of the Lots
or Improvements in the Business Park; and (b) the Owner seeking the variance shall
otherwise be subject to and conform with all applicable governmental laws,
ordinances, regulations and requirements. No variance granted pursuant to the
authority granted herein shall constitute a waiver of any provision of this
Declaration as applied to any person or real property.
2.4 Initial Board of Directors. The initial Board of Directors of the
Association shall consist of three (3) directors appointed by Declarant upon the
incorporation of the Association and shall hold office until the initial Board calls the
first annual meeting of Members pursuant to Section 2.7.
2.5 Subsequent Board of Directors. At the first annual meeting of
Members, a new Board consisting of five (5) directors shall be elected, and such
Board shall serve until the next annual meeting. At each subsequent annual
meeting, except as may be otherwise provided by the Bylaws, the Members shall
elect a Board consisting of five (5) directors who shall serve until the next annual
meeting. The Bylaws shall provide for staggered terms and lengths of terms for
directors different from those initially set forth in this Declaration and may provide
for a greater or lesser number of directors than set forth herein; provided, however,
in no event shall there be more than seven (7) directors or less than three (3)
directors. The Board shall undertake all duties and responsibilities of the Association
and the management and conduct of the affairs thereof, except as expressly
reserved herein to a vote of the Members.
2.6 Personal Liability. No member of the Board, or of any committee
of the Association, or any officer of the Association, or any manager, or Declarant or
any agent of Declarant, shall be personally liable to any Owner, or to any other
party, including the Association, for any damage, loss or prejudice suffered or
claimed on account of any act, omission, error or negligence of any such Person.
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2.7 Annual Membership Meetings. The initial Board may call the
first annual meeting of Members at any time, but in no event later than sixty (60)
days after fifty-one percent (51%) of the Lots initially subject to this Declaration are
conveyed by Declarant to Owners other then Declarant. Thereafter, the Association
shall hold an annual meeting of the Members in accordance with the Bylaws of the
Association.
ARTICLE 3
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
3.1 Membership. An Owner shall automatically, upon becoming the
record Owner of a Lot, be a Member of the Association and shall remain a Member
until such time as he ceases to be an Owner for any reason, at which time his
membership in the Association shall automatically cease. Such membership shall be
appurtenant to and pass with the ownership of the Lot. Notwithstanding that
membership in the Association shall be held by an Owner, this Declaration is binding
upon Lessees and Occupants.
3.2 Transfer of Membership. Membership in the Association shall not
be transferred, pledged or alienated in any way, except upon conveyance of a Lotto
a new Owner; provided, however, an Owner, upon giving written notice to the
Association, may grant to a Lessee who leases an entire Lot, for a lease term in excess
of five (5) years, a power coupled with an interest to act as the Owner's agent and
proxy in all matters relating to the Association, which power and proxy shall
automatically terminate when the Lessee's tenancy ends for any reason. Any
attempt to transfer a membership, except as provided in this Section, shall be void
and shall not be reflected upon the Association's books and records. If the Owner of
any Lot fails to transfer the membership appurtenant thereto upon any transfer,
whether voluntary or involuntary, of the Lot, the Association shall have the right to
record the transfer upon its books and thereupon the membership outstanding in
the name of the prior Owner shall be null and void, but any agency and proxy given
to a Lessee under a power coupled with an interest shall remain in effect throughout
the period of the lease term and the Lessee's occupancy.
3.3 Voting. The Association shall have two (2) classes of voting
membership:
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(a) Each Owner, but excluding Declarant for so long as the
Class B membership is in effect, shall be a Class A Member and shall
have one (1) vote for each 100 square feet of Maximum Building Area
(rounded off to the nearest 100 square feet) owned by such Owner.
(b) Declarant shall be the sole Class B Member and shall have
ten (10) votes for each 100 square feet of Maximum Building Area
(rounded off to the nearest 100 square feet) owned by Declarant.
Declarant's Class B membership shall terminate twelve (12) years after
the date of recordation of this Declaration, at which time Declarant, if
it is an Owner, shall be a Class A Member with the votes described in (a)
above.
The votes allocated to Class A members and attributable to each Lot included in the
Property initially subject to this Declaration are set forth on Exhibit "D" attached
hereto. Whenever a vote is provided for under the terms of this Declaration, it shall
be made in accordance with the provisions of this Section 3.3 unless otherwise
specified.
3.4 Joint Ownership. Where the record ownership of fee simple title to
a Lot is jointly held by more than one Person, all such Persons shall jointly constitute
one Member. The votes for such Lot shall be exercised as such Persons shall jointly
determine among themselves, but in no event shall more votes be cast with respect
to any Lot than the number of votes to which the Lot is entitled. The Association
shall have no obligation to determine the voting rights among such Persons, and if
such Persons cannot agree upon how their votes shall be cast, the Association shall
have the right to disregard the votes for such Lot.
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3.5 Administration and Compliance. Except as to matters requiring the
approval of Members as set forth in this Declaration, the Bylaws or the Articles, the
affairs of the Business Park shall be administered by the Association, acting through
its Board, officers and agents in accordance with the provisions of this Declaration,
the Bylaws and the Articles. If the Bylaws are in any way inconsistent with this
Declaration, then this Declaration shall prevail and control. Each Owner, Lessee,
Occupant or guest of a Lot shall comply with the Project Documents, and failure to
so comply shall constitute a breach of this Declaration and shall subject the
defaulting party to all enforcement procedures and remedies provided under the
Project Documents or available at law or in equity.
ARTICLE 4
ARCHITECTURAL REVIEW COMMITTEE
4.1 Organization; Members. An Architectural Review Committee shall
be established which shall consist of three (3) Persons appointed by the Board. The
Board shall also appoint two (2) alternate members, either of whom may be
designated by the Committee to act as a substitute for any member of the
Committee in the event of his unavailability or disability. The right to remove any
member or alternate member of the Committee shall be vested solely in the Board.
Any member of the Committee may resign from the Committee, at any time, upon
written notice to the Board. The Board shall appoint a new member to fill any
vacancy. A majority of the Committee may designate a representative to act for it.
The Committee may hire and pay consultants, architects or others to review plans,
specifications or other documents submitted pursuant to Article 5.
4.2 Terms of Office. The term of all Committee members shall be one
(1) year. Any new member appointed to replace a member who has resigned or
been removed shall serve such member's unexpired term. Members whose terms
have expired may be reappointed.
4.3 Duties and Appeals. The Committee shall have the following
duties:
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(a) To consider and approve, conditionally approve or
disapprove Preliminary Plans, Final Plans and other documents required
to be submitted to the Committee pursuant to Article 5;
(b) In reviewing plans, specifications and other documents
submitted pursuant to Article 5, to apply and enforce the standards and
restrictions set forth in this Declaration; and
(c) To perform all other duties delegated to and imposed
upon it by this Declaration or the Board.
Any Owner, Lessee or Occupant may appeal any decision of the Committee to the
Board.
ARTICLE 5
REVIEW OF IMPROVEMENT PLANS
5.1 Purpose of Improvement Regulations. The purpose of the
conditions, covenants and restrictions set forth in Articles 5 and 6 is: (a) to insure
proper development and use of the Property and to enhance and protect its value, in
accordance with a general plan for development of a compatible Business Park;
(b)to encourage and preserve an efficient, attractive environment; (c)to ensure
construction of Improvements of proper design and materials in conformance with
the Specific Plan which enhance the economic or esthetic value of the Property;
(d)to provide for architectural compatibility and continuity for all buildings and
landscaping; (e)to secure and maintain proper setbacks from streets and adequate
open spaces between structures; and (f) in general, to provide and maintain a high
quality of Improvements for the Property for the benefit of Declarant and all
Owners.
5.2 Required Review of Plans. No Improvements (other than interior
tenant improvements) shall be erected, placed, altered, expanded, maintained or
permitted to remain on any portion of the Property until Plans (as defined below)
have been submitted to and approved in writing by the Committee. All required
Plans shall be submitted to the Committee in writing, signed by the Owner or
prospective Owner of the Lot. If an application is submitted by a Lessee or
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prospective Owner or Lessee, the Owner of the affected Lot shall execute the Plans
indicating its approval thereof. Approval must first be obtained from the
Committee before the Plans are submitted to the City of Carlsbad. All drawings,
designs, and materials must be accurate and complete. A plan review fee of $250.00
payable to the Association will be charged by the Committee for Plans prepared by a
licensed architect. Plans shall be submitted to Declarant's office at 18300 Von
Karman Avenue, Suite 850, Irvine, California 92715, or such other address as
designated by Declarant in a writing delivered to each Owner at the address for such
Owner as shown on the books maintained by the Association. The plan review fee
may be modified by the Board to reflect changed circumstances, such as increased
costs due to inflation. Plans shall be submitted as follows:
5.2.1 General Requirements. Two copies of each submittal are
required. One copy will be returned to the applicant with comments. Lot numbers
must be included on all plans and other documents submitted for review. A
tabulation of Gross Floor Area by use, site area, landscape areas, required parking,
parking provided, and the percent of building coverage must be included on all
plans submitted for review.
5.2.2 Master Plan. The submission of a site Master Plan ("Master
Plan") shall be required only when ultimate site development occurs in stages. The
Master Plan shall be submitted and approved by the Committee before a Preliminary
Plan is submitted. The Master Plan shall include the following:
(a) an illustration of the total building complex,
including roof lines and applicable setback areas;
(b) vehicular and pedestrian circulation;
(c) employee and guest parking;
(d) grading, drainage and utilities;
(e) the design relationship to adjacent properties and
streets;
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(f) a description and sketches indicating architectural
character and materials; and
(g) a conceptual landscape plan, including, but not
limited to, landscaping and irrigation of any Street Setback Areas.
5.2.3 Preliminary Plan. Following approval of a Master Plan by
the Committee, if required, all applicants shall submit a preliminary plan
("Preliminary Plan"), which shall set forth and/or depict the following information:
(a) traffic circulation plan, including employee and
guest parking layout;
(b) projected number of employees and schedule of
working hours;
(c) setbacks;
(d) building and roof lines;
(e) indication of existing topography;
(f) finished grades;
(g) drainage and utility connections to existing lines;
(h) building elevations showing materials;
(i) colors and finishes;
(j) height for all exterior design elements;
(k) planting areas;
(I) location of a method of screening exterior storage
areas;
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(m) loading docks and ramps, transformers, storage
tanks, mechanical equipment, antennas;
(n) trash enclosures;
(o) the total number of regular compact and
handicapped parking space parking lot;
(p) walkway and security lighting including catalog
cuts of fixtures;
(q) a conceptual landscape plan, including, but not
limited to, any Street Setback Areas, together with a landscape
maintenance plan for the Street Setback Areas;
(r) location, dimension and general form of proposed
temporary and permanent signing in compliance with the Signage
Manual;
(s) a description of sound attenuation measures;
(t) a plan for compliance with any brush management
program required by the City or any other governmental agency; and
(u) signage.
The Preliminary Plan shall be submitted and approved by the Committee before a
Final Plan is submitted.
5.2.4 Final Plan. Following approval of a Preliminary Plan by the
Committee, all applicants shall submit a Final Plan, which shall include the following
information:
(a) revisions required by the Preliminary Plan review;
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(b) construction details;
(c) specifications if requested;
(d) exterior color samples;
(e) complete landscape plans showing the location and
types of trees, shrubs, ground cover and irrigation systems; and
(f) energy and water conservation measures to be
taken.
5.3 Modifications to Plans and Improvements. Material changes in
the Master, Preliminary or Final Plans approved by the Committee must be
resubmitted to and approved by the Committee pursuant to this Article. In addition
to the other requirements of this Section 5.3: (a) no exterior surface of any
Improvement on any Lot shall be repainted, texturized or otherwise changed, (b) no
alterations, additions or changes shall be made to any landscaping on any Lot, and
(c) no additions or alterations to any paved area on any Lot shall be made until, in
each case, plans for such painting, alterations, additions or changes, including
samples of colors and materials, landscaping plans, or paving plans and
specifications as the case may be, together with such other information as shall be
required by the Committee, have been submitted in duplicate to the Committee and
the Committee has approved such requested change in writing.
5.4 Basis for Disapproval. The Architectural Review Committee may
disapprove any and all plans and specifications,submitted hereunder on any
reasonable ground, including but not limited to, any of the following:
(a) Failure to comply with any of the provisions of this
Declaration;
(b) Failure to conform with the Specific Plan or other City
development standards and regulations applicable to the Property;
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(c) Objection to the color scheme, finished proportions, style
of architecture, height, bulk or appropriateness of any proposed
Improvement in relation to the Lot or other Lots, or in relation to other
Improvements which are existing or proposed and approved by the
Committee;
(d) Incompatibility of exterior design or materials with
existing structures and the topography and scenic resources of the
area;
(e) Objection to the landscape plan, including conformity of
landscape design or materials with street landscaping, existing or
proposed landscaping approved by the Committee for other Lots, or
the Conceptual Landscape Element;
(f) Objection to the landscape maintenance plan for the
Street Setback Areas, including the sufficiency of such plan to ensure
maintenance of such areas in a first-class condition compatible with
other Street Setback Areas in the Business Park and the requirements of
this Declaration;
(g) Visual or aesthetic impact;
(h) The effect of the location and use of the Improvements on
neighboring sites and the operations and uses thereon;
(i) Objection to the finished grading plan for any Lot,
including the final ground elevation of the site and the design, facing
and height of the building elevations in relation to nearby streets and
adjacent sites;
(j) Failure to adequately screen trash areas and mechanical
equipment from view from adjacent streets and properties;
(k) Inadequacy of off-street parking or objection to the
design and location of the parking areas; and
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***?
(I) Any other matter which, in the reasonable judgment of
the Committee, would render the proposed Improvements or use
inharmonious with the general plan for improvement of the Business
Park or with Improvements then existing or proposed and approved by
the Committee for other Lots within the Business Park.
In reviewing or approving any submittal, the Committee shall not be responsible for
determining compliance with any governmental land use or building construction
ordinances or requirements.
5.5 Development Requirements of City. The Property is subject to
and each Owner shall comply with: (a) the development criteria and requirements
set forth in the Specific Plan; (b) the PM Zone Regulations; (c) the development
restrictions and requirements set forth in the Specific Plan ; and (d) other applicable
governmental requirements. The City has the right to review and approve site
development plans for each Lot pursuant to policies and standards promulgated,
approved or adopted by the City, including without limitation, the Specific Plan, and
the City's Zoning Ordinance. The City's review may include, but shall not be limited
to, sign location, landscaping; access drives and building architecture. If any
requirement imposed by the City is different from a requirement contained herein,
the more restrictive requirement shall prevail. Each Owner and Occupant is
responsible for identifying and conforming with all City requirements.
5.6 Decision of the Board. The Committee may approve,
conditionally approve, or disapprove Master, Preliminary or Final Plans, or any other
submittal required under this Article. The decision of the Committee may be
appealed to the Board, and the decision of the Board shall be final and binding on
all parties. The Board may amend its decision only with the consent of the Owner of
the Lot on which the Improvement is to be located. One (1) set of the Master,
Preliminary and Final Plans and each other document submitted to the Committee
shall be returned to the applicant with the approval or disapproval endorsed
thereon, and the other set shall be retained by the Committee for its permanent
files.
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5.7 Time for Approval or Disapproval. If the Committee, or its
designated representative, fails to approve or disapprove the complete Master,
Preliminary or Final Plans or other documents submitted to the Committee, in
writing, within thirty (30) days after the Committee's receipt of a complete
application for such approval and the architectural review fee, it shall be conclusively
presumed that the Committee has disapproved the same unless the applicant has
delivered to the Committee, within fifteen (15) days after the expiration of the 30-
day period, a notice in writing setting forth the date of initial submittal of the
complete application to the Committee and the fact that no approval or disapproval
has been given as of the date of such notice. If the Committee fails to either approve
or disapprove the application on or before the fifteenth (15th) day after the
Committee's receipt of such notice, the provisions of this Declaration requiring
approval of such Plans or other documents by the Committee shall be deemed to
have been waived by the Committee with respect to such plans; provided, however,
that such waiver shall not be deemed to be a waiver of any other covenant,
condition or restriction provided herein.
5.8 Submission of Plans to City or Government. No plans,
specifications or other documents to be submitted to the Committee pursuant to this
Article shall be submitted to the City or any other governmental agency prior to
obtaining the approval of the Committee. If plans, specifications or documents
approved by the Committee are subsequently modified by the City or other
governmental action, the modifications must be submitted to and approved by the
Committee in writing, pursuant to the procedures specified in this Article. Upon City
or other governmental approval of any such plans, specifications or documents,
whether or not they have been modified, one complete approved set hereof shall be
furnished to the Committee.
5.9 Proceeding with Work. Upon approval of Final Plans by the
Committee pursuant to this Article, the Owner, Lessee or Occupant to whom the
approval is given shall satisfy all conditions thereof and shall diligently proceed to
commence the approved construction within one (1) year after the date of such
approval, or within such other time period which may be requested by the party
submitting the Plans and reasonably approved by the Committee. If the approved
construction is not commenced within said one year or other approved time period,
the approval given by the Committee pursuant to this Article shall be deemed
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revoked, unless the Committee, upon written request made prior to the expiration
of said time period, extends the time for commencing work.
5.10 Completion of Work. Once commenced, all construction work
shall be diligently prosecuted to completion in accordance with the approved Final
Plan. Work in progress shall not cease for a period in excess of thirty (30) days, and
construction or alteration of any Improvements shall be completed within two (2)
years after the commencement thereof, except and for so long as such work is
rendered impossible, or would result in great hardship, due to strikes, fires, national
emergencies, natural calamities, or other supervening forces beyond the control of
the Owner, Lessee or Occupant or their agents. Failure to comply with this Section
5.10 shall constitute a breach of this Declaration and shall subject the defaulting
party to all enforcement procedures and remedies provided under the Project
Documents or available at law or in equity. Upon completion of construction of any
Improvement, one complete set of as-built plans shall be submitted to and
maintained by the Committee.
5.11 Estoppel Certificate. Upon payment of a reasonable fee, in an
amount set by the Board, and upon written request of any Owner, accompanied by
an ALTA or certified as-built survey of the Lot if the Committee does not have such a
survey in its files, the Committee shall issue an acknowledged certificate in
recordable form certifying that, as of the date thereof, either: (a) all Improvements
located on a specific Lot comply with the provisions of this Declaration; or (b) such
Improvements do not so comply, in which event the certificate shall identify the non-
complying Improvements and set forth with particularity the reason(s) for such non-
compliance. Such certificate shall be furnished by the Committee within a
reasonable time, but not to exceed thirty (30) days from receipt of a written request
for such a certificate. Any Lessee, prospective Owner or Lessee or Mortgagee in
good faith and for value shall be entitled to rely on said certificate with respect to
the matters set forth therein, such matters being conclusive upon all parties in favor
of such subsequent parties in interest.
5.12 No.Liability for Approval Errors. Declarant, the Board, the
Committee, and their delegated agents shall not be liable for any damage, loss or
prejudice suffered or claimed by any Person on account of: (a) the approval or
disapproval of any plans or specifications; (b) the construction or performance of
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any work or improvement; (c) any defects in any plans, drawings, specifications or
other documentation or any structural or other defects in any work, whether or not
pursuant to approved plans or specifications; (d) the development of any Lot within
the Property; or (e) the execution and filing of an estoppel certificate pursuant to
Section 5.11, whether or not the facts therein are correct, provided that the
Committee has acted in good faith in issuing such estoppel certificate on the basis of
such information as may be possessed by it. Each Owner, Lessee, Occupant or other
Person who submits Preliminary Plans, Final Plans or other documents to the
Committee shall forever indemnify, hold harmless and defend the Declarant, the
Board, the Committee, the Members thereof and the agents of each such party
harmless from and against all damage, loss or prejudice suffered or claimed by any
Person on account of any of the matters described above in this Section.
ARTICLE 6
IMPROVEMENT STANDARDS AND LIMITATIONS
6.1 Drainage. No Owner shall interfere with or obstruct the
established surface drainage pattern over any Lot, unless adequate alternative
provision is made for proper drainage and is first approved in writing by the
Architectural Review Committee and the City. As used herein, "established
drainage" is defined as the drainage which exists at the time the overall grading of a
Lot is completed by Declarant. Water from any Lot may drain into adjacent streets,
but shall not drain onto adjacent Lots unless an easement for such purpose is
granted herein or in the recorded subdivision map for the Business Park. Each
Owner shall maintain, repair and keep free from debris or obstruction the drainage
system and facilities (if any) located on his Lot.
6.2 Excavation and Underground Utilities. No excavation shall be
made except in connection with the construction of an Improvement, and, upon
completion thereof, exposed openings shall be backfilled and disturbed ground shall
be graded, properly compacted, leveled and restored to its original condition.
6.3 Landscaping and Irrigation. Each Owner shall provide
continuous maintenance for all planted and undeveloped areas upon its Lot
(excluding Common Areas, which shall be maintained by the Association) and shall
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keep the same free and clear of weeds, debris and rubbish, in a neat and clean
condition. Each Owner shall comply with Brush Management Programs adopted by
the City from time to time, including, but not limited to, any requirement for
clearing or maintaining any areas (including slopes and open space areas) around
such Owner's buildings. Each Owner shall maintain the landscaping and irrigation
facilities on all Street Setback Areas on its Lot in substantially the same quality and
condition as the landscaping and irrigation facilities originally installed by Declarant,
or as otherwise approved by the Committee pursuant to Section 5.2. If the
landscaping and irrigation facilities within any Parkway Areas or Street Setback
Areas are damaged or disturbed in connection with construction of Improvements
on any Lot, the Owner of such Lot shall restore and/or replace the same in
accordance with Plans approved by the Committee pursuant to Article 5.
Maintenance of the Street Setback Areas shall be in conformance with the landscape
maintenance plan for such areas approved by the Committee pursuant to Section 5.2
and any other standards and guidelines established by the Committee from time to
time to ensure compatible, first-class maintenance of the Street Setback Areas
throughout the Business Park. Every Lot improved with a building or other
substantial structure shall be landscaped as approved by the Committee within sixty
(60) days after occupancy or completion of such structure, whichever occurs first, and
maintained thereafter in a sightly and well- kept condition. In particular, all
unpaved areas between street curbs and the setback lines prescribed herein shall be
fully and adequately landscaped. Hose bibs, sprinklers, drains and other reasonable
and adequate landscape maintenance facilities shall be provided in the vicinity of all
landscaped areas.
6.4 Maximum Building Area. The Gross Floor Area of the
Improvements constructed on each Lot shall not exceed the Maximum Building Area
allocated to such Lot. The Maximum Building Area of each Lot "shall be determined
as of the date of recordation of the Declaration of Annexation for such Lot in
accordance with the Specific Plan, taking into consideration all required set-back
areas. Declarant reserves the right to modify the Maximum Building Area of one or
more Lots, at any time prior to the conveyance of such Lots to a third party, provided
that Declarant shall not modify the Maximum Building Area of any Lot after the
conveyance of such Lot to a third party without the prior written consent of such
third party. The revised Maximum Building Areas shall be set forth in a Supplement
to this Declaration, executed and recorded by Declarant. If any Lot is further
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subdivided or if a merger or lot line or boundary adjustment affecting two or more
Lots is recorded, the Maximum Building Areas of the original Lot or Lots shall be
allocated among the resubdivided Lot or Lots in a manner approved by the Board
and consistent with the PM Zone Regulations and other applicable City
requirements. Upon issuance of any building permit for any building construction,
including any remodeling, alteration or expansion of any existing building, the
Owner of the affected Lot shall deliver to the Committee a determination of the
Gross Floor Area of the proposed building, certified by an Architect. Such
determination shall be subject to verification by an Architect designated by the
Association.
6.5 Mechanical Equipment; Ductwork, Etc.. Each Owner shall
comply with the following restrictions:
(a) All roof-mounted mechanical equipment and/or ductwork
shall be screened from view by an enclosure which is detailed in a
manner consistent with the building. Consideration shall be given to
the view plane of adjacent developments.
(b) Cyclone blowers shall be screened by a wall, fence or
landscape materials and shall be located below the fascia and/or roof
line of the building. Further, they shall be located on the rear or
"hidden" side of the building and shall be painted to match the surface
to which attached, if visible.
(c) Incinerator vents shall be located on the rear or "hidden"
side of the building in all cases.
(d) Roof-mounted ventilators shall be a maximum of one and
one-half (1-1/2) feet above the point to which attached and shall be
painted or prefinished consistent with the color scheme of the building.
(e) Gutters and downspouts shall be painted to match the
surface to which attached unless used as a major design element, in
which case the color shall be consistent with the color scheme of the
building.
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(f) Vents, louvers, exposed flashing, tanks, stacks, overhead
doors, rolling and "man" service doors shall be painted consistent with
the color scheme of the building.
6.6 Parking Areas. Adequate off-street parking shall be provided to
accommodate all parking needs of employees, visitors and company vehicles on the
Lot, in a manner consistent with the Specific Plan and other applicable City
requirements. The intent of this provision is to eliminate the need for any on-street
parking. If parking requirements increase as a result of a change in use or number of
employees, additional off-street parking shall be provided to satisfy the intent of
this Section. The Committee shall evaluate the adequacy of proposed parking
designs according to the following guidelines:
(a) Required off-street parking shall be provided on the Lot of
the use served, or on a contiguous Lot.
(b) In addition to the guidelines set forth herein, parking
requirements by land use, including size and number of spaces, aisle
widths, access and arrangements, etc., shall conform to the Specific Plan
and other applicable City requirements. If there is more than one (1)
shift, the number of employees on the largest shift shall be used in
determining parking requirements.
(c) Parking shall not be permitted between the public street
pavement and the property line.
(d) Parking areas must conform to setback requirements as set
forth in the Specific Plan and applicable zoning requirements.
(e) All side-yard areas not facing streets may be used in total
for automobile parking and landscaping when not in conflict with the
Specific Plan or other applicable City requirements.
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(f) Automobile parking areas shall be provided with
entrances, exits and aisles adequate to provide safe movement of
vehicles and must comply with City standards and/or guidelines.
(g) Parking spaces shall be adequately sized to accommodate
oversized vehicles which might be operated from and stored at the
subject Lot.
6.7 Setback Lines. The setback lines shall be as set forth in the
Specific Plan. No structure or Improvement of any kind, and no part thereof, shall be
placed on any Lot closer to the property line than permitted by such setback
requirements. All setbacks shall be measured from the property line, provided,
where the top of the slope extends beyond the setback lines, the set back shall be
measured from the top of the slope pursuant to the provisions of the Hillside
Ordinance. Notwithstanding the foregoing, the following Improvements may be
allowed within such setbacks, with the approval of the Committee:
(a) Steps and walks;
(b) Paving and associated curbing, except that vehicle parking
areas shall be in conformity with Section 6.6 of this Declaration;
(c) Fences, except that no fence shall be placed within the
street setback area unless specific written approval is given by the
Committee and the City;
(d) Landscaping;
(e) Planters, not to exceed three (3) feet in height; and
(f) Displays and signs identifying the Owner or Lessee, except
that such displays are subject to specific City ordinances and must be
approved by the Committee in writing.
6.8 Signs. All signs shall be subject to the prior approval of the
Committee in writing pursuant to Article 4. Alf signs shall conform with the College
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Business Park Signage Manual prepared by Declarant, as approved by the City and all
other governmental authorities.
6.9 Slope Areas. No Owner shall commence any construction on or
engage in any development of any slope areas without the prior written approval of
the Committee, and all such work shall be in conformance with the Landscape
Design section of the Specific Plan.
6.10 Subdivision of Lots. No resubdivision of any of the Lots described
in Recital A, or any merger or lot line or boundary adjustment affecting two or more
Lots, shall be permitted without the written consent of the Board. In the event a
resubdivision, merger, or lot line or boundary adjustment is so approved, each of the
Lots created as a result of the lot split or resubdivision, shall be subject to this
Declaration and the other Project Documents.
6.11 Storage and Loading Areas. In addition to the requirements set
forth in the Specific Plan:
(a) No materials, supplies or equipment, including company-
owned or operated trucks, shall be stored in any area on a Lot except
inside a closed building, or behind a visual barrier screening such area
from the view of adjoining properties and/or a public street. Screening
of storage areas shall be accomplished by the use of an opaque
screening material, which may include walls, building, redwood slated
chain link fences, or any combination thereof, to a minimum height of
six (6) feet to screen the stored items, except that such height shall not
exceed twelve (12) feet. All street frontage walls shall be of concrete
tilt-up or solid masonry. Upon a written application to the Committee,
the Committee may approve, in writing, a variance of said storage area
requirements.
(b) Loading areas shall not encroach into setback areas unless
specifically approved by the Committee in writing, in its sole discretion.
(c) Loading area doors and docks shall be set back and
screened to minimize the effect from the street. Loading areas and
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docks shall not be closer than seventy (70) feet to the street property
line, for front yard loading areas, unless specifically approved by the
Committee in writing, in its sole discretion. Loading will be permitted
to the rear of the setback line from that portion of a structure not
fronting a street. Front yard loading areas must be screened by a
concrete tilt-up wall textured or colored to match the main building.
6.12 Utilities. All telephone, electrical and other utility lines shall be
installed underground, except that transformer or terminal equipment related
thereto may be installed above ground if screened from view of adjacent streets or
properties. No Owner shall enter into any contract or agreement with any City,
county or other governmental agency or body or public utility with reference to
sewer lines or connections, water lines or connections, or street improvements
(including but not limited to curbs, gutters, parkways, street lighting or other utility
connections, lines or easements) relating to the Property or any Lot without the prior
written consent of the Committee.
6.13 Waste Disposal. No waste material, garbage or refuse shall be
dumped, placed or allowed to remain on any Lot outside a permanent structure
unless it is behind a visual barrier screening such area so that it is not visible from
neighboring properties or public streets. All such waste, garbage and trash materials
shall be kept in sanitary containers and shall be regularly removed from the Property
and shall not be allowed to accumulate thereon. Industrial waste disposal shall be in
a manner prescribed by the ordinances of the City and any other applicable
governing agency.
ARTICLE?
REGULATION OF OPERATIONS AND USES
7.1 Permitted Uses. Unless otherwise specifically prohibited herein,
permitted uses shall include those uses permitted by applicable City zoning and land
use regulations, provided such use is performed or carried out entirely within a
building that is so designed and constructed that the operations and uses comply
with: (a) all Laws, as defined in Section 7.4; and (b) the provisions of this
Declaration. Currently applicable City regulations of uses are set forth in the PM
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Zone Regulations, and the Specific Plan. If applicable law is less restrictive than the
provisions of this Declaration, the more restrictive provision shall apply.
7.2 Prohibited Uses. Without limiting the provisions of Section 7.1 or
any other provision of this Article, no Lot shall be used for any of the following
activities or purposes:
(a) Any use which, in the Board's sole and absolute discretion,
is considered to be objectionable as an intrusion into the environment
of sound, odor, visual effect or physical impact or that will disturb or
tend to disturb the other Owners, Lessees or Occupants in the Business
Park.
(b) Any public or private nuisance;
(c) Any use in violation of Sections 7.4 or 7.5;
(d) Any use or operation that results in a discharge or release
of Hazardous Materials (as defined in Section 7.5), on or under the
surface of the Property or into the surface or ground waters of the
Property, unless such discharge or release is in full compliance with all
applicable federal, state and local laws, regulations, ordinances and
permits;
(e) Any use or operation that results in air emissions of
pollutants or contaminants, unless such emissions are in full compliance
with all applicable federal, state and local laws, regulations, ordinances
and permits relating to air pollution control;
(f) Any use that produces intense glare or heat, unless such
use is performed only within an enclosed or screened area in a manner
such that the glare or heat emitted will not be discernible from any
property line of the Lot;
(g) Any use that creates a sound pressure level in violation of
any applicable governmental regulation;
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(h) Any use that creates a ground vibration that is perceptible,
without instruments, at any point along any of the property lines of the
Lot;
(i) Residential uses;
(j) Camping;
(k) Mobile home sales and storage yards or mobile home,
trailer or recreational vehicle parks or sale facilities;
(I) Junk yards, auto dismantling operations or recycling
facilities;
(m) Distillation of bones;
(n) Dumping, disposal, incineration or reduction of garbage,
sewage, dead animals, refuse or spillage;
(o) Saw or planing mills;
(p) Manufacturing, excavation (if applicable) or production of
cement, lime, asphalt, gypsum, fireworks, wood pulp or the like;
(q) Production of fish products, sauerkraut, vinegar or the
like;
(r) Fat rendering;
(s) Stockyards or slaughtering of animals;
(t) Surface mining operations or commercial excavation;
(u) Smelting of iron, tin, zinc or other ores;
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(v) Cemeteries;
(w) Auto repair, automotive paint and body shops;
(x) Drilling for and/or the removal of gas or oil, refining of
petroleum or its products, or petroleum storage yards; or
(y) Jail or honor farms;
7.3 Nuisances. No Owner, Lessee, or Occupant shall create or permit
any public or private nuisance on any portion of the Business Park. All incinerators
or other equipment for the storage or disposal of trash, garbage or refuse shall be
kept in a clean and sanitary condition. No odors shall be permitted to arise
therefrom so as to render any Lot or portion thereof unsanitary, unsightly, offensive
or detrimental to any property in the vicinity or to the Occupants thereof. No use or
operation shall be conducted in the Business Park which is noxious, offensive,
unsightly or which may interfere with the quiet enjoyment of other Owners, Lessees
and Occupants.
7.4 Compliance with Laws, Regulations, Permits or Certificates of
Occupancy. No Owner, Lessee or Occupant shall permit any activity, use or operation
on any portion of the Property in violation of any law, statute, rule, regulation,
requirement, permit, ordinance or certificate of occupancy promulgated by any
federal, state or local governmental entity with jurisdiction over the Property or any
business, use or operation thereon (collectively, "Laws"). Each Owner, Lessee and
Occupant shall, upon written notice from Declarant, or the Board, discontinue any
use which is declared by any governmental entity having such jurisdiction to be a
violation of any Law. Each Owner, Lessee and Occupant shall, immediately upon
receipt from any governmental entity of an allegation violation of any Law, provide
a copy of such allegation to the Board, notwithstanding such party's belief that
meritorious defenses to such allegations exist. No representation is made that
compliance with the use regulations specified in this Declaration will satisfy other
legal requirements.
7.5 Hazardous Materials. Without limiting the provisions of
Section 7.4:
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^;
^
(a) Each Owner, Lessee or Occupant shall strictly comply with
all Laws now or hereafter promulgated with respect to the use,
generation, storage, transportation or disposal of hazardous, toxic or
radioactive materials (collectively, "Hazardous Materials"). As used
herein, "Hazardous Materials" shall include, but not be limited to,
those materials identified as hazardous or toxic substances, materials or
wastes pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), as amended, 42
U.S.C. Section 9601, et seq.. the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. Section 6901, et seq.. the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq.. the California
Hazardous Waste Control Act, California Health and Safety Code
Section 25100, et seq.. the Carpenter-Presley-Tanner Hazardous
Substance Account Act, Cal. Health & Safety Code Section 25300, et
seq.. the Safe Drinking Water and Toxic Enforcement Act. Cal. Health &
Safety Code Section 25249.5, et seq.. the Porter-Cologne Water Quality
Control Act, Cal. Water Code Section 13000, et seq., any amendments to
and any regulations promulgated pursuant to the foregoing, and any
similar federal, state or local Laws.
(b) No Owner, Lessee or Occupant shall discharge or release
any Hazardous Material on or under the surface of the Property or into
the surface or ground waters of the Property in violation of any Laws.
(c) No Owner, Lessee or Occupant shall discharge any
hazardous air pollutant regulated under the National Emissions
Standards for Hazardous Air Pollutants by the United States
Environmental Protection Agency. No Owner, Lessee or Occupant shall
discharge any toxic air contaminant classified as such by the California
Air Resources Board under the California Health and Safety Code. No
Owner, Lessee or Occupant shall discharge any pollutant which would
constitute a nuisance under the rules of the San Diego Air Pollution
Control District.
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(d) Each Owner, Lessee or Occupant shall indemnify, hold
harmless, protect and defend Declarant, the Board, the Association and
each other Owner, Lessee or Occupant from and against all liabilities,
losses, damages, costs and expenses directly or indirectly arising out of
the generation, storage, disposal, release or discharge of Hazardous
Materials or hazardous air pollutants by such party, including but not
limited to, the cost of any required monitoring, investigation, clean up,
removal, detoxification, preparation of plans or other remedial work.
The strict compliance by an Owner, Lessee or Occupant with all Laws
pertaining to Hazardous Materials shall not excuse such party from its
obligation of indemnification pursuant to this Section.
7.6 Necessary Permits. Prior to commencement of any operation or
use upon a Lot, each Owner, Lessee or Occupant shall demonstrate to the Board that
he has obtained all necessary permits for the operation or use proposed by such
party.
7.7 Access. Declarant or the Board, and their respective agents, shall
have the right, but not the obligation to enter upon a Lot as provided in
Section 12.2.2 for the purpose of inspecting the same, in order to assure compliance
with all applicable Laws. In addition, Declarant or the Board may require disclosure
of any applicable information relating to the applicable Laws or permits and any
other evidence necessary to assure Declarant and the Board of an Owner's
compliance with said Laws.
7.8 Rules and Regulations. Declarant has prepared Rules and
Regulations relating to the use, management and maintenance of the Common
Areas and the facilities and Improvements located thereon, and to the conduct of
Owners and their Lessees, Occupants and guests with respect to the Property and
other Owners. The Board shall have the right to amend, supplement or repeal any of
the Rules and Regulations, from time to time. The Rules and Regulations, as so
amended and supplemented, shall be binding on all Owners and their Lessees,
Occupants and guests. In the event of any inconsistency between the Rules and
Regulations and this Declaration, the Declaration shall govern to the extent of the
inconsistency.
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**?;
ARTICLE 8
RESERVATIONS OF EASEMENTS AND RIGHTS
8.1 Easements Over Common Areas. The Parkway Areas located
outside the public right-of-way, and certain Drainage Easement Areas are owned by
the Owners, as part of their respective Lots. Open Space Lots 24, 25 and 26 shall be
conveyed to the Association. The Common Areas are subject to the following
easements:
(a) There is hereby reserved to Declarant an easement over
the Common Areas for the purpose of grading and installation of
utilities, landscaping, irrigation and drainage facilities, and other
Improvements, as necessary or appropriate to complete the
improvement of such Common Areas pursuant to the Specific Plan, the
conditions of approval of the Final Map, and other applicable
governmental regulations and requirements.
(b) There is hereby reserved to Declarant, the Association and
their agents and representatives an easement over all Common Areas
for the purpose of maintenance, repair, reconstruction, restoration and
landscaping, and as necessary to exercise the rights and to perform the
duties set forth in this Declaration.
(c) There is hereby reserved over those Parkway Areas outside
the public right-of-way, for the benefit of Declarant, the Association
and all Owners: (i) an easement for pedestrian ingress and egress; and
(ii) an easement adjacent to the main entry to the Business Park for
monument signs, landscaping, walls and other Improvements
identifying the entry.
(d) There is hereby reserved over the Drainage Easement
Areas, for the benefit of Declarant, the Association and all Owners, an
easement for drainage purposes.
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*3
(e) Declarant hereby grants to the Association, as Common
Area, an easement over Open Space Lots 24, 25 and 26 for purposes of
maintaining the Desilting/ Detention Basins, an access road between
the Property and the Desilting/Detention Basin(s) and any temporary
drainage facilities and temporary erosion control landscaping related
thereto.
The Common Areas, including all areas subject to the easements granted herein,
shall be maintained by the Association as further described in Article 9. All
easements granted herein to Owners shall be appurtenant to and shall pass with
title to each such Owner's Lot and may be used by the Owners, Lessees and
Occupants of each such Owner's Lot, and their respective guests, subject to the Rules
and Regulations and the other restrictions set forth in Article 9.
8.2 Easements of designated Hillside Areas. The designated Hillside
Areas located on the Property are owned by the Owners, as part of their respective
Lots. The designated Hillside Areas are subject to the following easements:
(a) There is hereby reserved to Declarant an easement over
the designated Hillside Areas for the purpose of grading and
installation of landscaping, irrigation facilities, and other
Improvements, as necessary or appropriate to complete the
improvement of such designated Hillside Areas pursuant to the Specific
Plan, the conditions of approval of the Final Map, and other applicable
governmental regulations and requirements.
(b) There is hereby reserved to Declarant, the Association and
their agents and representatives an easement over the designated
Hillside Areas for the purpose of maintenance, repair, reconstruction,
restoration and landscaping, and as necessary to exercise the rights and
to perform the duties set forth in this Declaration.
8.3 Transfer of Easement Rights. Prior to the date for
commencement of maintenance of the Association of any portion of the Common
Areas pursuant to Section 9.1, or the designated Hillside Areas pursuant to Section
9.2.1 Declarant shall transfer any necessary easements to the Association.
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8.4 Right of Entry
8.4.1 Common Area. Declarant, the Association, the Board, and
their employees, agents, and contractors are hereby granted the right to enter upon
the Common Areas and upon any other portion of the Property, to the extent
reasonably necessary, to repair, improve, maintain and operate the Common Areas,
and to exercise the rights and to perform the duties imposed by this Declaration on
the Board or the Association. Such right of entry upon portions of the Property
other than the Common Areas shall be exercised so as to interfere as little as
reasonably possible with the possession, use and enjoyment of the Owner, Lessee or
Occupant of such portion and shall be preceded by reasonable notice whenever the
circumstances permit. The Association shall indemnify, hold harmless and defend
the Owner of each Lot over which the foregoing easements are reserved from and
against all damages, claims, losses and liabilities arising from or caused by the use of
such Common Areas by the Declarant, Association, Owners, Lessees, Occupants or
their guests.
8.4.2 Hillside Area. Declarant, the Association, the Board, and
their employees, agents, and contractors are hereby granted the right to enter upon
the designated Hillside areas and upon any other portion of the Property, to the
extent reasonably necessary, to repair, improve, maintain and operate the
designated Hillside Areas and to exercise the rights and to perform the duties
imposed by this Declaration on the Board or the Association. Such right of entry
upon portions of the Property other than the designated Hillside Areas shall be
exercised so as to interfere as little as reasonably possible with the possession, use
and enjoyment of the Owner, Lessee or Occupant of such portion and shall be
preceded by reasonable notice whenever the circumstances permit. The Association
shall indemnify, hold harmless and defend the Owner of each Lot over which the
foregoing easements are reserved from and against all damages, claims, losses and
liabilities arising from or caused by such entry.
8.5 Utility Easements. Declarant hereby reserves for its own use and
benefit, and for the use and benefit of the Association and all Owners, easements
for the location, installation and maintenance of utilities and drainage facilities of
convenience or necessity as may be requested or required by Declarant, the
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Association or any Lot Owner. The Association shall have the authority to grant
easements or rights-of-way for utilities over the Common Areas as necessary to serve
the Common Areas and/or the Lots. The Owner of any Lot and any of his Lessees,
Occupants or licensees shall have the right at all reasonable times to enter upon the
land subject to said easements and to install, maintain, repair and service utilities
and drainage facilities thereon for the use and benefit of his Lot. Provided,
however, any such Person shall restore said land, at his own expense, as nearly as
practicable, to the same condition as existed prior to such entry. The Owner of any
Lot shall have the right to assign the benefit and use of any such easement to any
public or private utility company, agency or district for the purpose of installing,
operating and maintaining utilities or drainage facilities and enforcing the
easement rights. For purposes hereof, "utilities" shall include electricity, gas mains
and lines, water distribution lines, storm water sewers, sanitary sewers, telephone
and telegraph cables and lines, and other similar or related facilities commonly
regarded as utilities. No conveyance by Declarant of any Lot, or any interest therein
shall be deemed to be a conveyance or release of the easements herein reserved,
even though such conveyance purports to convey such Lot or Lots in fee simple or
purports to convey Declarant's entire interest therein; but, notwithstanding the
foregoing, Declarant reserves the right unto itself, from time to time, to release any
segment or area from such reserved easements, provided that Declarant causes any
utility or utilities existing therein to be relocated without expense to the users
thereof and without any unreasonable interruption of any utility service furnished
pursuant to the easement to be released.
8.6 Drainage. Declarant hereby reserves for itself and successive
Owners, over areas of the Business Park, easements for drainage from slope areas
and drainage ways from time to time constructed by Declarant.
8.7 Easements Reserved and Granted. Any easements referred to in
this Declaration shall be deemed reserved or granted, or both reserved and granted,
by reference to this Declaration in a deed to any Lot.
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ARTICLES
MAINTENANCE AND USE OF COMMON AREAS
9.1 Management and Maintenance by Association. The
administration of this Declaration as it applies to the Property and the Common
Areas and the management of the Common Areas shall be vested in the Association.
In order to implement the power of administration established by this Declaration
and management of the Common Areas, the Association shall have the powers set
forth in Section 2.3 of this Declaration and elsewhere in the Project Documents. The
Association shall repair, restore, reconstruct, operate, maintain and manage the
Common Areas and all facilities and Improvements located thereon in a first-class
condition and a good state of repair, to the extent such areas are not maintained
and controlled by the City or other governmental agency, district or public or private
utility, except as otherwise set forth herein. Maintenance by the Association of each
portion of the Common Areas shall commence upon completion of the
Improvements (if any) to such portion, as evidenced by a written notice from
Declarant to the Association together with a copy of any applicable notice of
completion; provided, however, Declarant shall perform all such maintenance prior
to completion of such Improvements on the Common Areas and shall continue to
maintain any Common Areas or Improvements for as long as they are covered by a
maintenance or warranty bond in favor of the City. The Association's maintenance
function includes, but is not limited to, the following:
(a) The maintenance of all Common Areas in accordance with
the Specific Plan, the conditions of approval of the Final Map and other
applicable governmental requirements;
(b) The maintenance and replacement, when necessary, of
trees, shrubs, ground cover and other landscape plantings or
improvements installed on the Common Areas by Declarant or its
successors pursuant to the Conceptual. Landscape Plan and other
specific landscape plans submitted to and approved by the City;
(c) Clearing, grubbing and other maintenance of the Open
Space Lots as required by the City or other governmental authorities,
or as considered appropriate by the Board, but excluding any brush
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maintenance which is the obligation of an Owner pursuant to
Section 11.1;
(d) Removing all trash and refuse from the Common Areas;
(e) Cleaning, repairing and replacing all paved areas and signs
within the Common Areas (other than signs installed by an Owner as
permitted hereunder); and
(f) Maintaining, repairing and replacing all utility facilities
within the Common Areas, to the extent such work is not performed by
a public or private utility company, agency or district.
All Owners shall be responsible for a proportionate share of the costs incurred by the
Board pursuant to this Article, through assessments levied in accordance with Article
10. The Association shall also be responsible for collecting assessments for, and for
paying the costs of maintaining the Open Space Lots.
9.2 Maintenance of Open Space Lots.
9.2.1 Open Space Lots. The Association shall maintain the Open
Space Areas, and the costs of such maintenance shall be allocated among the Lots
included in the Property, and as such Lots may be adjusted or resubdivided from time
to time, in the proportion the Maximum Building Area of each such Lot bears to the
total Maximum Building Area of all such Lots. Such maintenance obligation shall
include, but is not limited to, the repair, restoration, reconstruction, operation,
maintenance and management of the Desilting/Detention Basins. The costs of such
maintenance shall be allocated to the Owners of Lots included in the Property by
means of assessments pursuant to Article 10. The foregoing costs allocated to
Owners of Lots included in the Property shall be paid by the Association and
recovered by means of assessments pursuant to Article 10.
9.2.1 Hillside Areas. The Association shall maintain the
designated Hillside Areas, and the costs of such maintenance shall be allocated
among the Lots included in the Property, and as such Lots may be adjusted or
resubdivided from time to time, in the proportion the Maximum Building Area of
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each such Lot bears to the total Maximum Building Area of all such Lots. The costs
of such maintenance shall be allocated to the Owners of Lots included in the
Property by means of assessments pursuant to Article 10. The foregoing costs
allocated to Owners of Lots included in the Property shall be paid by the Association
and recovered by means of assessments pursuant to Article 10.
9.3 Maintenance Caused by Owners. Etc. The Association shall not
be responsible for maintenance and repair of any Common Areas or Hillside Areas
arising out of or caused by the willful or negligent act or omission of any Owner, or
his Lessees, Occupants or guests, and such repairs or replacements shall be the
responsibility of such Owner. If the Owner fails to perform such repairs and
replacements within thirty (30) days after receipt of a written notice, and provided
the Owner has been given an opportunity to be heard by the Board, orally or in
writing, the Association shall have the right (but not the obligation) to make such
repairs or replacements, and the cost thereof shall be charged to such Owner and his
Lot or Lots as a Reimbursement Assessment as defined in Section 10.8.
9.4 Desiltinq/Detention Basins. In addition to the duties set forth in
Sections 9.1 and 9.2, the Association shall have the following obligations and duties
with respect to the Desilting/Detention Basins:
(a) The Association shall repair, restore, reconstruct, operate,
maintain, monitor and manage the Desilting/Detention Basins.
(b) The Association shall conduct or cause to be conducted an
inspection of the Desilting/Detention Basins in accordance with a
schedule of inspection prepared by an engineer designated by the
Board to ensure that such Basins are capable of operating at design
capacity.
(c) A separate line item shall be included in the Association
Budget prepared pursuant to Section 10.4, setting forth the amount of
money allocated to the maintenance and monitoring of the Basins. The
Association shall budget an amount adequate to cover such
maintenance and monitoring.
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9.5 Driveways. Each Owner shall have a right to construct, in
accordance with Plans approved pursuant to Article 5, driveways and related
Improvements over portions of such Owner's Lot designated as Common Areas on
Exhibit " B;" provided, however, such Owner shall repair or replace all Common Area
landscaping and irrigation and drainage facilities damaged in connection with such
construction.
9.6 Common Area Restrictions. Use of the Common Areas shall be
subject to: (a) the reserved rights described in Section 8.1, (b) the Rules and
Regulations, and (c)the other provisions of this Declaration. Other than the work
performed or approved by Declarant in connection with the development of the
Business Park, Common Areas shall not be planted, altered, or improved, and
nothing shall be removed therefrom without the written consent of the Board.
9.7 Signs. Subject to applicable governmental requirements, the
Board may place and maintain on the Common Areas such signs as the Board may
deem necessary in order to identify the Property, regulate traffic access and parking,
facilitate use of the Common Areas, and protect the health, safety and welfare of all
Owners, Lessees, Occupants, agents, employees and guests.
9.8 Assessment District; Dedication of Common Areas. Declarant or
the Board shall have the right to cooperate with governmental entities to establish a
special assessment district for improvement or maintenance of all or any portion of
the Common Areas. Declarant or the Association shall have the right to dedicate or
transfer, or grant an easement over, all or any portion of the Common Areas in
which such party holds an interest to any public agency or authority or public or
private utility, subject to such conditions as such party deems appropriate.
9.9 Destruction, Restoration. As soon as practicable after the
damage or destruction of all or any portion of the Common Areas, the Board shall:
(a) obtain bids from at least two (2) reputable contractors, licensed in California,
which bids shall set forth in detail the work required to repair, reconstruct and
restore such damaged or destroyed areas to substantially the same condition as
existed prior to such damage and the itemized cost of such work; and (b) determine
the amount of all insurance proceeds available to the Association for the purpose of
effecting such repair, reconstruction and restoration. If the insurance proceeds
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{0
available to the Association are sufficient to effect the total repair, reconstruction
and restoration of the damaged or destroyed areas, then the Association shall cause
such to be repaired, reconstructed and restored to substantially the same condition
as existed prior to such damage. If the proceeds of insurance available to the
Association are insufficient to cover the cost of repair, reconstruction and
restoration, the Board shall levy a Special Assessment for all additional funds needed
to comply with the obligation of the Association to maintain the Common Areas in
accordance with this Article 9.
ARTICLE 10
FUNDS AND ASSESSMENTS
10.1 Agreement to Pay Maintenance Assessments; Creation of Lien
and Obligation. Declarant, for each Lot owned which is subject to assessment
hereunder, hereby covenants and agrees, and each Owner of any Lot by his
acceptance of a deed therefor, whether or not it shall be expressed in such deed, is
deemed to covenant and agree, for each Lot owned, to pay to the Association:
(a) annual Regular Assessments, as described in Section 10.6; (b) Special Assessments,
as described in Section 10.7; (c) Reimbursement Assessments, as described in Section
10.8; and (d) such other assessments which the Board is authorized to levy pursuant
to this Declaration. Assessments, together with interest, costs and reasonable
attorneys' fees, shall be a charge on the land and shall be a continuing lien on the
Lot against which each such assessment is made, which lien shall be effective upon
recordation of a notice pursuant to Section 12.3.2. Each such assessment, together
with interest, costs and reasonable attorneys' fees, shall also be the personal
obligation of the Owner of such Lot at the time it becomes due and payable. If more
than one person or entity is the Owner of a Lot, the personal obligation to pay such
assessment shall be joint and several. The personal obligation for delinquent
assessments shall not pass to an Owner's successors in title, however, unless expressly
assumed by them, but any lien created hereunder shall remain a charge against the
Lot except as to bonafide purchasers or encumbrancers for value without notice and
as set forth in Section 14.8.
10.2 No Waiver by Non-Use. No Owner may exempt himself from
payment of assessments by waiver of the use or enjoyment of all or any portion of
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the Common Areas or by waiver of the use or enjoyment, or by abandonment, of his
Lot.
10.3 Purpose of Assessments. Assessments levied by the Association
shall be used to pay the Common Expenses (as defined in Section 1.11), in order to
enhance, maintain and protect the desirability, attractiveness, and safety of the
Business Park, and to reimburse the Association for the costs incurred in bringing an
Owner into compliance with the Project Documents, and for any other purpose
which in the reasonable judgment of the Association shall be for the common good
of the Business Park.
10.4 Budgets. At least fifteen (15) days prior to the date for
commencement of Regular Assessments pursuant to Section 10.6.2, and at least
fifteen (15) days prior to each calendar year thereafter, the Board shall prepare or
cause to be prepared and distribute to all Members of the Association a pro forma
operating budget ("Budget") for such first or successive calendar year setting forth
the estimated revenue and expenses on an accrual basis. The Budget shall include a
reasonable allowance for contingencies, replacements and reserves.
10.5 Lots Subject to Assessment; Allocation of Assessments. All Lots
within the Property, except the Open Space Lots, are subject to Regular Assessments
and to Special Assessments. All assessments (except for Reimbursement Assessments
described in Section 10.8) shall be allocated among the Owners in the proportion the
Maximum Building Area of each Owner's Lot or Lots bears to the total Maximum
Building Area of all Lots then subject to assessment under this Declaration. The
Maximum Building Areas may be modified by Declarant as provided in Section 6.4.
In the event of resubdivision of any Lot or a merger or lot line or boundary
adjustment affecting two or more Lots, the Maximum Building Area of the original
Lot or Lots shall be allocated among the resulting Lots as provided in Section 6.4, and
the assessments for the original Lot or Lots shall be reallocated among the resulting
Lots based upon the reallocated Maximum Building Area.
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10.6 Regular Assessments.
10.6.1 Purpose. Regular Assessments shall be used to defray the
Common Expenses.
10.6.2 Date of Commencement of Regular Assessments. Regular
Assessments shall commence, as to all Lots initially subject to this Declaration, on the
first (1st) day of the month following the conveyance of the first Lot by Declarant to
an Owner other than Declarant; provided, however, that Declarant may, at its
option, delay the start of Regular Assessments so long as Declarant performs all
maintenance and other obligations of the Association at its sole cost and expense.
The first Regular Assessments shall be adjusted according to the number of months
remaining in the calendar year and shall be prorated for any partial month.
10.6.3 Establishment. Not more than sixty (60) days before the
beginning of the first Regular Assessments hereunder and before the beginning of
each calendar year thereafter, the Board shall meet for the purpose of establishing
the Regular Assessment for the first or successive calendar year. At such meeting,
the Board shall review the Budget prepared in accordance with Section 10.4, and
written comments received from any Member and any other information available
to it and, after making any adjustments that the Board deems appropriate, without
a vote of the Members of the Association, shall establish the Regular Assessments for
the forthcoming year. The Board shall give written notice of the Regular
Assessments to each Owner promptly after establishment thereof.
10.6.4 Payment of Assessments. Regular Assessments shall be
due and payable by the Owners to the Association in advance in four (4) equal
quarterly installments, on or before the first (1st) day of January, April, July and
October of each calendar year, or in such other manner as the Board shall designate.
10.7 Special Assessments.
10.7.1 Purpose. Special Assessments may be levied by the Board:
(a) If the Board determines that the Regular Assessments
are or will be insufficient to defray actual Common Expenses of the
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Association for a given year due to unanticipated delinquencies or cost
increases or unexpected repairs, replacements or reconstruction of any
Improvements in the Common Areas;
(b) If funds are otherwise required for any authorized
activity of the Association; or
(c) For the purpose of defraying, in whole or in part, the
cost of construction of any capital improvements deemed reasonably
necessary by the Board for the benefit of the Business Park, provided
that any such capital improvement assessment in excess of five percent
(5%) of all assessments budgeted for that calendar year shall require
approval by the vote or written consent of Members holding a majority
of the total voting power of the Association Members, which majority
shall include Declarant for so long as Declarant is a Class B Member.
10.7.2 Establishment. The Board shall determine the
approximate amount necessary to defray the expenses set forth in Section 10.7.1,
and, if the amount is approved by a majority vote of the Board, it shall become a
Special Assessment; provided, however, that the Board may, in its discretion, pro-
rate such Special Assessment over the remaining months of the calendar year or levy
the full assessment immediately against each Lot. Any Special Assessment in excess
of ten percent (10%) of the budgeted gross expenses of the Association for the
calendar year in which a Special Assessment is levied shall require approval by
Members holding a majority of the total voting power vote of the Association
Members, which majority shall include Declarant for so long as Declarant owns any
portion of the Property.
10.7.3 Time and Manner of Payment Special Assessments shall
be due and payable within fifteen (15) business days after a Member receives written
notice from the Board specifying the amount of the Special Assessment, unless the
Board specifies in such notice a later date for payment.
10.8 Reimbursement Assessment. The Board may levy a
Reimbursement Assessment against any Owner and such Owner's Lot or Lots to
recover costs ("Noncompliance Expenses") incurred by the Association as a result of
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such Owner's willful or negligent acts or failure to comply with this Declaration, the
Rules and Regulations or any other Project Documents, or to impose a fine or penalty
pursuant to this Declaration. Assessments shall be due and payable within fifteen
(15) business days after an Owner receives notice from the Board specifying the
amount of the Reimbursement Assessment.
10.9 Non-payment of Assessments. Any assessment not paid within
fifteen (15) days after the due date shall be delinquent and such nonpayment shall
constitute a default by the Owner hereunder. If any assessment is not paid within
thirty (30) days after the due date, the Association shall have the right to collect a
late charge equal to ten percent (10%) of the delinquent account or $10, whichever
is greater. In addition, the delinquent amount shall bear interest from the due date
at the rate specified in Section 12.4. In the event of a default in the payment of any
assessment, the remedies provided in Article 12 shall be available in addition to any
other available legal or equitable remedies.
10.10 No Offsets. All assessments shall be payable in the amounts
specified by the particular assessment, and no offsets against such amount shall be
permitted for any reasons, including, without limitation, a claim that the Association
is not properly exercising its duties of maintenance, operation or enforcement.
10.11 Transfer of Property. After transfer of any Lot within the Business
Park, the transferring Owner shall not be liable for any assessment levied on his Lot
after the date such Lot is transferred and written notice of such transfer is delivered
to the Association. The transferring Owner shall remain responsible for all
assessments and charges levied on his Lot prior to any such transfer.
10.12 Failure to Fix Regular Assessments. The omission by the Board to
fix the Regular Assessments hereunder before the expiration of any calendar year,
for the next year, shall not be deemed either a waiver or modification of any
provisions of this Declaration or a release of any Owner from the obligation to pay
the assessments or any installment thereof for that or any subsequent year, and the
Regular Assessment fixed for the preceding year shall continue until new Regular
Assessments are fixed.
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10.13 Association Funds. The assessments collected by the Association
shall be deposited into two (2) separate accounts with a savings and loan association
or bank selected by the Board, which accounts shall be clearly designated as: (a) the
Maintenance and Operation Account, for maintenance and operation assessments,
and (b) the Reserve Account, for reserves for contingencies and the repair and
replacement of facilities and Improvements. The funds collected shall be deposited
into the appropriate accounts and said accounts shall be separately maintained by
the Association. Upon sale or transfer of any Lot by an Owner, the Owner's interest
in such accounts shall be deemed automatically transferred to the successor Owner
of such Lot. If the Board retains a professional management service, the Board may
delegate the authority to deposit or withdraw funds to responsible representatives
of such professional management agent. Said professional management agent may
additionally be authorized to establish a common trustee account for deposit of
assessments as collected. All funds shall be held in trust by the Association for the
use and benefit of its Members and shall only be used for and applied to the specific
purpose for each assessment as hereinafter set forth.
10.14 Books of Account. The Board shall maintain full, complete and
correct books of account of the operation of the Business Park. Said books and
records shall accurately detail the receipts and expenditures affecting the Common
Areas, specifying and itemizing the maintenance and repair expenses of the
Common Areas and any other expenses incurred. The books of account shall be
available for inspection by any Lot Owner during reasonable business hours. Any Lot
Owner, or its duly authorized representative, may at any time and at its own expense
cause an audit or inspection to be made of the books and records of the Association
for any period not previously audited. The Board may, at its option, cause an audit
to be made at the Association's cost and expense.
10.15 Annual Statement. Within 120 days after the close of the
Association's fiscal year, the Board shall prepare and distribute to each Member a
balance sheet and operating (income) statement for the fiscal year, and a review of
the financial statement of the Association, prepared in accordance with generally
accepted accounting principles, if required under California Civil Code Section 1365.
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ARTICLE 11
MAINTENANCE. RESTORATION OF LOTS
11.1 Duty to Maintain. The exterior of all Improvements, the
landscaping and the parking area, and all internal slopes on each Lot, other than
Common Areas, shall be regularly repaired (including replacements where
necessary) and maintained by each Owner in good, safe, sightly and well kept
condition, in accordance with the approved plans and specifications for. such Lot
(including, but not limited to, the landscape maintenance plan for the Street Setback
Areas), this Declaration, the Rules and Regulations, the Specific Plan, and all other
applicable City standards and regulations. Each Owner shall perform, at its sole
expense, all brush maintenance on its Lot or on any adjacent Open Space Lot which is
required by the City or any other governmental agency in order to maintain a clear
area within a radius of such Owner's buildings.
11.2 Lateral Support. Each Owner shall maintain his Lot with
sufficient landscaping and plantings so as to prevent any erosion upon his Lot which
may result in damage to that Lot or to any adjacent Lot. No Owner shall perform any
excavation upon his Lot that will result in damage to any adjacent Lot.
11.3 Damage and Destruction; Duty to Rebuild. If all or any portion
of a Lot or any Improvement on any such Lot, other than within the Common Areas,
is damaged or destroyed by fire or other casualty, it shall be the duty of the Owner
of such Lot to: (a) rebuild, repair or reconstruct the Lot and the Improvements
thereon in a manner which will restore them to a condition and appearance
approved by the Committee and the City; (b) raze and remove the damaged
Improvements, restoring the Lot to substantially its original unimproved condition;
or (c) any combination of the above, in a manner satisfactory to the Committee. The
Owner of any Lot on which damaged Improvements are located shall be obligated to
proceed with all due diligence hereunder, and such Owner shall cause cleanup
and/or reconstruction to commence within three (3) months after the damage occurs
and to be completed within nine (9) months after damage occurs, unless prevented
by causes beyond his reasonable control.
11.4 Insurance Obligation of Owners. Each Owner shall insure his
Improvements against loss or damage by fire or by any other casualty, under the
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standard form of all risk insurance then in use in the State of California or under such
other insurance as may be required under the terms of any Mortgagee encumbering
his Lot.
11.5 Obligation to Pay Taxes. Liens. Each Owner shall pay, prior to
delinquency, all real property taxes, assessments, special district charges and all
other public, governmental, quasi-public or quasi-governmental charges which are
or may become a lien upon the Owner's Lot and all other liens which may be or
become superior to this Declaration or any amendments thereto. If any Owner fails
to timely pay any lien or charge as provided herein, the Association shall have the
right to cure such default. All costs and expenses, including attorneys' fees and costs,
incurred by the Association in connection with said cure shall be a Noncompliance
Expense and may be recovered by the Association as a Reimbursement Assessment
against said Owner and his Lot as provided in Section 10.8. An Owner may contest
the validity or amount of any taxes, assessments or charges and, in connection
therewith, may defer payment thereof or pay under protest, provided that such
Owner pays all taxes (including interest and penalties) which are determined to be
due as a result of said protest and protects the property from any lien by posting an
adequate surety bond.
11.6 Performance By Board. If any Owner or Lessee fails to maintain
his Lot or any Improvements thereon in the manner required by this Declaration, the
Board shall notify the Owner or Lessee in writing by registered mail that said
Improvement or Lot is not being properly maintained. If such maintenance is not
effected by the Owner or Lessee within thirty (30) days from the date of delivery of
such notice to the Owner or Lessee, the Board, or its designee, shall have the right, to
the extent permitted by applicable laws, to enter upon the Lot for the purpose of
maintaining, restoring or repairing said Improvements or Lot. Entry upon the Lot by
the Board or its agents or contractors for the purpose of maintenance or repair shall
not be a trespass, and the Owner and all Lessees and Occupants shall be deemed to
have consented thereto. The costs incurred by the Board in restoring, maintaining or
repairing said Improvement or Lot, plus ten percent (10%) of such amount as an
allowance for overhead, plus interest at the rate specified in Section 12.4 and the
costs incurred by the Association to enforce this Article, including attorneys' fees and
court costs, shall be payable to the Board upon demand, and shall be a charge on the
land and a continuing lien on the Property on which the maintenance or repair was
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made. The total amount shall also be the joint and several personal obligation of
the Owner and all Lessees and Occupants of the Site, except that the personal
obligation for such amount shall not pass to successors-in-interest unless expressly
assumed by them. Such sum shall also be a Noncompliance Expense and may be
recovered by the Association as a Reimbursement Assessment against the Owner and
his Lot pursuant to Section 10.8. If the Board elects not to perform or cause to be
performed such work, the Association may pursue any other rights and remedies set
forth herein or otherwise available bring an action at law or in equity to enforce the
provisions of this Declaration.
ARTICLE 12
ENFORCEMENT
12.1 Violation a Nuisance. The result of every act or omission
whereby any provision of this Declaration is violated in whole or in part is hereby
declared to be a nuisance, and every remedy allowed by law or equity against an
Owner, Lessee or Occupant for nuisance, either public or private, shall be available
to and may be exercised by Declarant, the Association, or any Owner.
12.2 General Remedies.
12.2.1 Right to Enforce. The Declarant or the Association shall
have the right to enforce, by all appropriate legal and equitable proceedings, all
conditions, covenants, restrictions, reservations, liens, and charges now or hereafter
imposed by the provisions of this Declaration. It is hereby agreed that money
damages are an inadequate remedy for breach of any of the conditions, covenants
and restrictions contained herein, other than a default in the payment of any
assessment when due. Every Owner, Lessee and Occupant of a Lot subject to these
restrictions expressly waives the benefit of California Code of Civil Procedure
Section 731(a) and any other comparable statute or rule, and agrees that such
violation or breach may be enjoined whether or not monetary damages may be
provided or provable.
12.2.2 Inspection; Abatement by Declarant, Association. During
reasonable hours, Declarant or the Association, or their duly authorized agents, shall
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have the right to enter upon and inspect any Lot and the Improvements located
thereon for the purpose of ascertaining whether or not the provisions of this
Declaration have been or are being complied with, and shall not be deemed guilty of
trespass by reason of such entry. Declarant shall give at least twenty-four (24) hours
prior notice of such entry (except in the case of an emergency, when no advance
notice shall be required), unless the party in possession consents at the time of entry.
Declarant and/or the Association or their duly authorized agents shall have the right,
upon violation or breach of any restriction set forth herein, if such violation or
breach continues for a period of thirty (30) days after written notice thereof, to
enter upon the Lot where such violations or breach exist, and summarily to take such
action as may be necessary to bring such Lot or any Improvements or activities
thereon into compliance with this Declaration, at the expense of the Owner, Lessee
or Occupant thereof. Declarant and/or the Association, or their duly authorized
agents, shall have the additional right at any time and from time to time following
violation or breach of this Declaration to prosecute a proceeding at law or in equity
against the Person or Persons who have violated or are attempting to violate any of
the provisions of this Declaration, to enjoin or prevent them from doing so, to cause
said violation to be remedied, and to recover damages for said violation.
12.2.3 Owner's Remedies. After written request to the
Association to prevent any violation of this Declaration, and failure to act by
Declarant or the Association within fifteen (15) days of receipt of such request, any
Owner shall additionally have all enforcement rights provided for in this
Declaration. In addition, any other party to whose benefit this Declaration inures
shall have the right, in the event of violation or breach of this Declaration, to
prosecute a proceeding at law or in equity against the Person or Persons who have
violated or are attempting to violate this Declaration, to enjoin or prevent them
from doing so, to cause said violation to be remedied and to recover damages for
said violation.
12.3 Collection of Assessments; Liens.
12.3.1 Right to Enforce. The right to collect and enforce
assessments is vested in the Board acting for and on behalf of the Association. The
Board or its authorized representative, can enforce the obligations of the Owners to
pay assessments provided for in this Declaration by commencement and
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maintenance of a suit at law or in equity, or the Board may perfect a lien as
described in Section 12.3.2 and foreclose such lien by judicial proceedings or through
the exercise of the power of sale as described in Section 12.3.3. Suit to recover a
money judgment for unpaid assessments may be maintained without foreclosing or
waiving the lien rights.
12.3.2 Creation of Lien. If there is a failure to pay any assessment
within thirty (30) days after the due date, the delinquent amounts, together with
late charges, interest, costs and attorneys' fees incurred by the Board or its
authorized representatives in the collection of said delinquent amounts, shall be a
lien against such Lot upon the recordation in the Office of the County Recorder of
San Diego County of a notice of delinquent assessment as provided in California Civil
Code Section 1367. The notice of assessment shall not be recorded unless and until
the Board or its authorized representative has delivered to the delinquent Owner(s),
at least fifteen (15) days before recordation of the notice, a written notice of default
and demand for payment, and unless the delinquency has not been cured within
said fifteen (15) day period.
12.3.3 Notice of Default; Foreclosure. After at least fifteen (15)
days after the recording of the notice of delinquent assessment, the Board or its
authorized representative may record a notice of default and can cause the Lot, with
respect to which a notice of default has been recorded, to be sold in the same
manner as a sale is conducted under California Civil Code Sections 2924, 2924b and
2924c applicable to the exercise of powers of sale in deeds of trust, or through
judicial foreclosure, or in any other manner permitted by law. However, as a
condition precedent to the holding of any such sale under Section 2924c,
appropriate publication shall be made. In connection with any sale under
Section 2924c, the Board is authorized to appoint its attorney, any officer or director,
or any title insurance company authorized to do business in California as trustee for
purposes of conducting the sale. If a delinquency is cured before sale, or before
completing a judicial foreclosure, the Board or its authorized representative shall
cause to be recorded in the Office of the County Recorder of San Diego County a
certificate setting forth the satisfaction of such claim and release of such lien upon
payment of actual expenses incurred, including reasonable attorneys' fees by the
delinquent Owner. The Association, acting on behalf of the Owners, shall have the
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power to bid upon the Lot at the foreclosure sale and to acquire, hold, lease,
Mortgage and convey the Lot.
12.3.4 Subordination of the Lien to First Mortgages. The lien of
assessment shall be subordinate and subject only to the lien of any first Mortgage
now or hereafter placed upon any Lot subject to assessment which has been made in
good faith and for value and recorded in the Office of the San Diego County
Recorder prior to the recordation of any such assessed lien, and the sale or transfer
of any Lot pursuant to judicial or nonjudiciai foreclosure of such a prior first
Mortgage shall extinguish the lien of such assessments as to payments which became
due prior to such sale or transfer. No sale or transfer shall relieve such Lot from lien
rights for any assessments thereafter becoming due nor from the lien of any
subsequent assessment. Where the Mortgagee of a first Mortgage or other
purchaser of a Lot obtains title to the same as a result of foreclosure, such purchaser
and his successors or assigns shall not be liable for assessments chargeable to such
Lot which became due prior to the acquisition of title to such Lot by such purchaser.
12.4 Interest. All assessments and other monetary amounts which are
not paid when due hereunder shall bear interest at the rate of twelve percent (12%)
per annum, commencing thirty (30) days after the assessment or other monetary
amount becomes due.
12.5 Attorneys' Fees. In the event any legal or equitable proceeding is
commenced to enforce or to restrain the violation of this Declaration or any
restrictions or provision hereof, the losing party shall pay the attorneys' fees and
court costs of the prevailing party in such amount as may be fixed by the court in
such proceedings.
12.6 Cumulative Remedies; No Waiver. The remedies herein provided
to enforce this Declaration shall be cumulative, and no such remedy is exclusive. No
delay or failure by Declarant, the Board, Association or any Owner to exercise any
such remedy shall, under any circumstance, constitute a waiver of the right to
enforce such covenant thereafter.
12.7 Enforcement by City. City, following a determination of the City
Engineer or Director of Utilities and Maintenance that the Association or Owners of
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Lots within the Business Park are in default of their duties and obligations to
maintain the Common Areas and Common Area Improvements in the manner herein
described, shall have the right, but not the obligation or duty, to enter upon such
Common Areas and to undertake any work necessary to maintain such Common
Areas or Common Area Improvements, all for the account of, and at the cost and
expense of the Lot Owners. Provided, however, that prior to entering upon the
Common Areas for the purpose of undertaking work necessary to maintain the
Common Areas or Common Area Improvements, the City shall present to Declarant
or the Association, as appropriate, a written notice which shall describe the nature
of the default, shall set a date not less than ninety (90) days from the date of the
presentation of such notices within which such time the Declarant or the Association
may cure such default and shall specifically advise such entities that upon the failure
to cure the default within the time frame set forth in the notice, the City may enter
upon such Common Areas and perform such maintenance work to the Common
Areas and Common Area Improvements all for the account of and at the cost and
expense of said entities. Provided further, that in the event that any such person or
entity, following receipt of such notice, wishes to protest determination of such
default, such person or entity shall be entitled to appeal in writing such
determination to the City Council within ten (10) days of the mailing of the notice.
(a) In the event the City shall enter upon the Common Areas
and undertake the work maintaining the Common Areas or the Common Area
Improvements following a determination by the City that the Declarant or the
Association is in default of its duties and obligations, then each Lot Owner shall be
liable to and shall reimburse City his or her proportionate share of the costs
associated with such default in accordance with Article 10.
(b) In the event a Lot Owner shall fail to reimburse City for his
or her proportionate share of any costs incurred by the City in curing said default,
then City shall be entitled to make such reimbursable costs a lien upon the property
of the Lot Owner benefited by such work by recording a notice that it has incurred
reimbursable costs under the terms of this Declaration in the Official Records of the
San Diego County Recorder. In addition to stating that costs have been incurred by
City under the terms of this Declaration, such notice shall set forth the amount or
such reimbursable costs, the date they became due and payable, and shall state that
until paid such reimbursable costs shall bear interest at the legal rate from the date
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such reimbursable costs became due until the date such costs are paid. Moreover, in
the event a Lot Owner fails to reimburse the City for his or her proportionate share
of any costs incurred by the City in curing said default, then City may, in addition to
recording a lien against such Lot, file a legal action seeking recovery of such costs;
provided that, if the City is the prevailing party in such action, then City shall be
entitled, as part of the settlement or judgment entered in such action, to interest on
such costs computed at the legal rate plus reasonable attorneys fees in an amount
agreed to or fixed by the court. In addition to the foregoing, the City may seek
equitable relief.
(c) City's right to enforce the duties and obligations of
Declarant or the Association, shall not preclude the City from entering upon the
Common Areas, performing any work necessary to maintain the Common Areas and
Common Area Improvements located therein, and to assess the Lot Owners for the
costs of such maintenance work, all in accordance with the provisions of any special
assessment laws now or hereafter enacted by the State of California or City
ordinance, and the provisions of this Section shall not constitute a waiver of the
City's rights pursuant to such special assessment laws.
ARTICLE 13
TERM, TERMINATION. AMENDMENT
13.1 Term of Declaration. Subject to the provisions of Section 13.2
hereof relating to amendments, this Declaration shall run with the land and shall
continue in full force and effect until 5:00 p.m. on the twentieth (20th) anniversary
of the date of recordation of this Declaration, and shall be automatically extended
for successive ten (10) year periods unless, within six (6) months prior to the
expiration of the initial term or any succeeding ten-year term, a written agreement
executed by Owners owning seventy-five percent (75%) of the total acreage then
subject to assessment hereunder is recorded in the Office of the County Recorder of
San Diego County terminating this Declaration in whole or in part as to all or any
portion of the Property.
13.2 Amendments. Any provision of this Declaration may be
terminated, extended, amended or revoked ("amended") in any respect upon the
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vote or prior written consent of the Owners holding seventy-five percent (75%) of
the total voting power of the Association. Provided, however, that so long as
Declarant owns record fee title to any portion of the Property or for a period of
fifteen (15) years from the date of recordation of this Declaration, whichever is
shorter, no such amendment shall be effective without the prior written consent of
Declarant. No such amendment shall be effective until a written instrument setting
forth the terms thereof, and including a certification by the President of the
Association that Owners holding the required voting percentage have consented
thereto, is duly executed by the Board and Declarant, in the event of Declarant's
approval is required.
ARTICLE 14
GENERAL PROVISIONS
14.1 Assignment of Declarant's Rights and Duties. Any and all of the
rights, powers and reservations of Declarant set forth herein may be assigned to any
Person, provided such assignee agrees in writing to accept such assignment and to
assume the duties of Declarant pertaining thereto. An assignee may succeed to the
same rights, powers and reservations and be subject to the same obligations and
duties as are herein given to and assumed by Declarant, as a successor Declarant,
provided such assignee: (a) holds or acquires record title to all or any portion of the
Property; and (b) Declarant (or a successor Declarant) executes and records a
document which expressly names such party as successor Declarant and assigns the
rights and duties of Declarant hereunder. Notwithstanding any provision of this
Declaration to the contrary, Declarant may, at any time, relieve itself of its rights and
obligations under this Declaration by recording a notice stating that Declarant has
surrendered said rights and obligations and, upon the recording of such notice, even
if it is not specified therein, said powers and obligations shall immediately vest in the
Association. If at any time Declarant ceases to exist and has not made such an
assignment, the rights and obligations of Declarant shall automatically vest in the
Association.
14.2 Common Interest Subdivision. It is intended that California Civil
Code Sections 1351 et seq. apply to this Declaration and the Business Park to the
extent required by law. To the extent California Civil Code Section 1351 et seq. is
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applicable, the Business Park shall be a planned development type of common
interest subdivision.
14.3 Constructive Notice and Acceptance. Each Owner, Lessee and
Occupant, and every other person who now or hereafter owns or acquires any right,
title, estate or interest in or to any portion of the Property, by acceptance of a deed,
lease or other interest therein, shall be conclusively deemed to have consented and
agreed to hold such title, leasehold or interest subject to and to comply with every
covenant, condition and restriction contained herein and to the rights of Declarant
hereunder, whether or not any reference to this Declaration is contained in the
deed, lease or other instrument by which such person acquired said interest in the
Property., Every provision of this Declaration, regardless of its characterization
herein, shall be deemed a covenant, condition, restriction, reservation, easement or
servitude, as the circumstances may require to permit the enforcement thereof and
to carry out the intent of this Declaration.
14.4 Declarant's Reserved Rights. Wherever it appears in this
Declaration that the Declarant has the right to waive compliance with certain
provisions, the right to approve or deny certain matters or the right to exercise its
discretion in various areas, these rights of the Declarant are expressly reserved or
retained by the Declarant, and all of the provisions of this Declaration are subject to
such retained and reserved rights.
14.5 Exhibits. All exhibits referred to herein are attached hereto and
incorporated by reference.
14.6 Governing Law. This Declaration shall be governed, construed
and enforced in accordance with the laws of the State of California.
14.7 Headings. The captions and paragraph headings used in this
Declaration are inserted for convenience of reference only and are not intended to
define, limit or affect the interpretation or construction of any provision hereof.
14.8 Mortgage Protection. No breach of this Declaration shall defeat
or render invalid the lien of any Mortgage now or hereafter executed upon any part
of the Business Park except as provided in Section 12.3.4 above. However, if any
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portion of the Property is sold under a foreclosure of any Mortgage or is conveyed to
the party so secured in lieu of foreclosure, any purchaser at such sale, and his
successors and assigns, shall hold any and all property so acquired subject to all of
the restrictions and other provisions of this Declaration. Such a purchaser shall not
be obligated to cure any preexisting breach of this Declaration which is non-curable
by payment of money or of a type which is not practical or feasible to cure. Any loan
to facilitate the resale of any portion of the Property after a foreclosure sale or deed
in lieu of foreclosure is a loan made in good faith and for value. If a Mortgagee
delivers written notice of its Mortgage to the Board together with a request for
notices of default with respect to the Lot or Lots encumbered by the Mortgage, the
Association shall deliver copies of all such notices of default concurrently with
delivery to the Owner or Owners.
14.9 Mutuality. Reciprocity; Runs With Land. All covenants,
conditions, restrictions, reservations, easements and servitudes contained herein are
made for the direct, mutual and reciprocal benefit of each and every portion of the
Property; shall create mutual, equitable servitudes upon each Lot in favor of every
other Lot; shall create reciprocal rights and obligations between the respective
Owners of any portion of the Property, their heirs, successors, and assigns; and shall,
as to the Owner of each Lot, his heirs, successors and assigns, operate as covenants
running with the land, for the benefit of all other Lots.
14.10 Notices. Any notices required or permitted herein shall be in
writing and either personally delivered or mailed, postage prepaid, by registered or
certified mail, return receipt requested, addressed as follows: If intended for an
Owner, to the last known address of the Owner. If intended for Declarant, to
Huntington Beach Company, Attn: Project Manager, 18300 Von Karman Avenue,
Suite 850, Irvine, California 92715. Mailing addresses may be changed at any time
upon written notification to the Board. Notices shall be deemed received on the
date of personal delivery or evidenced by receipt three (3) business days after
mailing.
14.11 Notification of Sale. Concurrently with the consummation of a
sale or transfer of any Lot or portion thereof whereby the transferee becomes a
record title owner thereof, or within five (5) business days thereafter, the transferee
shall notify the Board of such sale in writing. Such notification shall set forth the
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B-2260 62 11/05/91
name of the transferee and the transferor, the location of the Property, the nature
of the interest transferred, the transferee's mailing address, and the date of sale.
Prior to receipt of such notification, any and all communications required or
permitted to be given by the Board or the Association shall be deemed to be duly
given to the transferee if duly and timely given to said transferee's transferor.
14.12 Number; Gender. As used herein, the singular shall include the
plural and the masculine shall include the feminine, wherever the context so
requires.
14.13 Severability. The provisions of this Declaration shall be deemed
independent and severable, and if any competent court holds any provision to be
invalid, partially invalid or unenforceable, such invalidity or unenforceability shall
not affect or invalidate any other provision.
14.14 Waiver. Neither Declarant, the Association or any Member
thereof, nor their successors or assigns, nor any Owner or Lessee shall be liable to any
other Owner, Lessee or Occupant of any portion of the Property subject to this
Declaration by reason of any mistake in judgment, negligence, nonfeasance, action
or inaction in regard to the enforcement or failure to enforce the provisions of the
Declaration or any portion thereof. Every Owner, Lessee or Occupant, by acquiring
his mterest in the Business Park agrees that he will not bring any action or suit
against Declarant, its successors and assigns or the Association or any member
thereof, from time to time to recover any such damages or to seek equitable relief.
This Section 15.14 shall not prevent the enforcement of any legal or equitable right
of one Owner against another.
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IN WITNESS WHEREOF, Declarant has executed this Declaration of
Covenants, Conditions and Restrictions for College Business Park as of the date first
set forth above.
HUNTINGIO'N BEACH COMPANY,
a California corporation.<?,-'/ j 1 /••-
By:
/
Its:
T
College Business Park
B-2260 64 11/05/91
STATE OF CALIFORNIA
COUNTY OF ORANGE )SS
On November 26.1991 before me, Laurie A. Cragg, a Notary Public for the State, of California,
duly commissioned and sworn, personally appeared L. M. Netherton and M. K. Mayer, personally
known to me to be the persons who executed the within instrument as Vice-President and Assistant
Secretary on behalf of Huntington Beach Company, the corporation therein named, and
acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
LS.
OFRCIALSEAl
LAURIE A. CRAGG
NOTARY PUBLIC CALIFORNIA
PRINCIPAL OFFICE IN
ORANGE COUNTY
My Commission tip. Apr 29,1994
Notary Public^
My Commission
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MAP NO .-12T03
SCALE I" =200'CARLSBAD TRACT NO. 85-17 SHEET 4 OF 12 SHEETS
INDEX MAP
SCALE I"-200'