HomeMy WebLinkAboutCT 99-06; Palomar Forum; Tentative Map (CT)RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
Palomar Forum Associates
1420 Bristol Street North, Suite 100
Newport Beach, California 92660
Attn: Larry E. Nelson
WITH A COPY TO:
Manatt, Phelps & Phillips
650 Town Center Drive, Suite 1250
Costa Mesa, California 92626
Attn: William R. Devine, Esq.
DOC * 2003-0035144
JAN 1O, 2OO3 12=O4 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SHITH, COUNTY RECORDER
FEES: 182.00
9419 2M3-4J035144
(Space Above for Recorder's Use Only)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
PALOMAR CONCOURSE
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
Section 1. Annexation Area
Section 2. Architectural Criteria.
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Page
1
,1
.2
Section 3. Architectural Committee 2
Section 4. Articles of Incorporation 2
Section 5. Assessment 2
Section 6. Association 2
Section 7. Board of Directors 2
Sections. Building... 2
Section 9. Bylaws ....2
Section 10. Class A Member 2
Section 11. Class B Member 2
Section 12. CLUP 2
Section 13. Common Area.. .......2
Section 14. Common Assessment 2
Section 15. Declarant 3
Section 16. Declaration 3
Section 17. Front Lot Line.. 3
Section 18. Front Yard 3
Section 19. Improvements 3
Section 20. Landscape Criteria 3
Section 21. Landscape Easements 3
Section 22. Landscape Easement Areas 3
Section 23. Lighting Criteria 3
Section 24. Member 3
Section 25. Mortgage - Mortgagee - Mortgagor 3
Section 26. Notice and Hearing 3
Section 27. Owner 4
Section 28. Parcel 4
Section 29. Person 4
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TABLE OF CONTENTS
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Page
Section 30.
Section 31.
Section 32.
Section 33.
Section 34.
Section 35.
Section 36.
Section 37.
Section 38.
Section 39.
Planning and Design Guidelines 4
Project Area 4
Property 4
Rear Lot Line 4
Rear Yard 4
Reimbursement Assessment 4
Regulations 4
Side Lot Line 4
Side Yard 4
Signage Criteria 5
Section 40. Site Planning Criteria 5
Section 41. Special Assessment 5
Section 42. Zoning Code 5
ARTICLE II' MEMBERSHIP AND VOTING RIGHTS ....5
Section 1. Organization..- 5
Membership 5
Transfer 5
Voting Rights 6
Class A Members 6
Class B Members 6
Approval by Total Membership 6
Membership Rights of Certain Lessees 6
COVENANT FOR MAINTENANCE ASSESSMENTS 7
Section 2.
Section 3.
Section 4.
(a)
(b)
Section 5.
Section 6.
ARTICLE III
Section 1. Covenant to Pay Assessments 7
Section 2. Purpose of Assessments 7
Section 3. Common Assessments 7
Section 4. Special Assessments 7
Section 5. Reimbursement Assessments 8
Section 6. Notice and Quorum for Meetings Called Under Section 3 8
Section 7. Allocation and Timing of Assessments 8
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TABLE OF CONTENTS
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Page
Section 8. Date of Commencement of Common Assessments 8
Section 9. Effect of Nonpayment of Assessments; Remedies of the
Association 9
(a) Enforcement by Suit •. 9
(b) Enforcement by Lien 9
Section 10. Subordination to Certain Trust Deeds 10
ARTICLE IV MANAGEMENT OF THE ASSOCIATION AND THE PROJECT
AREA 11
Section 1. General Powers of the Association 11
Section 2. Specific Powers and Duties of the Association 11
Section 3. Repair and Maintenance of the Parcels by Owners 12
Section 4. Repair of Common Areas by or at the Expense of Owners 12
Section 5. Rules Regarding Use of Common Area.. 12
Section 6. Entry onto Parcels , 12
ARTICLE V - PROPERTY RIGHTS AND EASEMENTS .: 13
Section 1. Common Area Easements 13
Section 2. Easements Over Parcels 13
Section 3. Encroachment Easements 13
Section 4. Title to the Common Area 14
Section 5. Owners' Rights and Duties; Utilities 14
Section 6. Continuing Covenants 14
ARTICLE VI USE RESTRICTIONS 15
Section 1. Use of Parcels 15
Section 2. Site Development Standards 15
Section 3. Architectural Restrictions 16
Section 4. Building Setbacks 16
Sections. Nuisances - Environmental Control 16
Section 6. Signs 17
Section 7. Off-Street Parking 17
Section 8. Loading 17
Section 9. Storage Areas 17
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TABLE OF CONTENTS Q A n o
(continued) * * * °
Page
Section 10. Entrance and Door Graphics 17
Section 11. Animal Regulations 17
Section 12. Leasing of Buildings 17
Section 13. Utilities 18
ARTICLE VII ARCHITECTURAL AND LANDSCAPING CONTROL 18
Section 1. Architectural Approval 18
Section 2. Number of Members and Term 18
Section 3. No Liability 18
Section 4. Rules and Regulations 19
Section 5. Delegation 19
Section 6. Review Fee and Address 19
Section 7. Inspection 19
Section 8. Nonapplicability to Declarant 19
ARTICLE VIII INSURANCE :.... 19
Section 1. Mandatory 19
(a) Association 19
(b) Owners 19
Section 2. Waiver by Members 20
Section 3. Other Insurance; Annual Review 20
Section 4. Premiums and Proceeds 20
Section 5. Fire and Casualty Insurance 20
ARTICLE IX DAMAGE AND DESTRUCTION AFFECTING COMMON AREA 20
Section 1. Consent of Owners to Rebuild 20
Section 2. No Consent Required With Adequate Insurance 21
ARTICLE X ANNEXATION 21
ARTICLE XI EMINENT DOMAIN 22
ARTICLE XII RIGHTS OF LENDERS 22
Section 1. Notice to Mortgagees on Default 22
Section 2. Assessments on Foreclosure 22
Section 3. Required Consent of Owners 22
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TABLE OF CONTENTS
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Page
Section 4. Rights of Holders 23
Section 5. Payment of Taxes and Insurance Premiums 23
Section 6. Priority On Distribution of Proceeds 23
Section 7. Mortgage Protection Clause 23
Section 8. Conflicts 24
ARTICLE XIII RIGHTS OF CITY 24
Section 1. General Enforcement by the City 24
Section 2. Notice and Amendment 24
Section 3. Failure of Association to Maintain Common Area and Landscape
Easement Area 24
Section 4. Special Assessments Levied by the City 24
Section 5. Landscape Maintenance Responsibilities 25
Section 6. Compliance With Environmental Mitigation Measures 25
Section 7. Open Space Maintenance Responsibilities.. 25
Section 8. Open Space Maintenance Financial Responsibility/Obligation 25
Section 9. Total Building Square Footage Monitoring Obligation 25
Section 10. Easements to City 25
ARTICLE XIV DURATION AND AMENDMENT 25
Section 1. Duration 25
Section 2. Amendment 26
Section 3. ' Protection of Declarant 26
ARTICLE XV GENERAL PROVISIONS 26
Section 1. Legal Proceedings 26
Section 2. Severability 26
Section3. Interpretation 27
Section 4. Construction and Sales by Declarant 27
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
PALOMAR CONCOURSE
THIS DECLARATION is made as of October 31, 2002, by PALOMAR FORUM
ASSOCIATES, L.P., a California limited partnership ("PFA") hereafter referred to as the
"Declarant".
PREAMBLE:
A. Declarant is the Owner of real property in the City of Carlsbad, County of San
Diego, State of California, described in Exhibit A attached hereto (the "Property").
B. It is the desire and intention of Declarant to subdivide and/or use the Property as a
planned unit development comprised of business park, high technology, light industrial, other
commercial uses and open space uses.
C. Declarant has deemed it desirable to establish covenants, conditions and restrictions
upon the Property and each and every portion thereof, which will constitute a general'scheme for
the management of the Property, and for the use, occupancy and enjoyment thereof, all for the
purpose of enhancing and protecting the value, desirability and attractiveness of the Property.
D. PFA has formed a limited partnership under the laws of the State of California for
the purpose of exercising the powers and functions aforesaid.
E. Declarant hereby declares that all of the Property is and shall be held, conveyed,
hypothecated, encumbered, leased, rented, used, occupied and improved subject to the following
limitations, restrictions, easements, conditions and covenants, all of which are declared and
agreed to be in furtherance of a plan for the protection, subdivision, maintenance, and
improvement of the Property for the purpose of enhancing the value, desirability and
attractiveness of the Property. All provisions of this Declaration, including without limitation
the easements, uses, obligations, covenants, conditions and restrictions hereof, are hereby
imposed as equitable servitudes upon the Property. All of the limitations, restrictions,
easements, conditions and covenants herein shall run with the land and shall be binding on and
for the benefit of all of the Property and all parties having or acquiring any right, title or interest
in the Property, or any part thereof, and their successors and assigns.
ARTICLE I
DEFINITIONS
Section 1. Annexation Area. "Annexation Area" shall mean the real property described
on Exhibit B, ail or any portion of which may be annexed to the Project and made subject to this
Declaration.
9.426
Section 2. Architectural Criteria. "Architectural Criteria" shall mean and refer to the
architectural criteria set forth in the Planning and Design Guidelines, as may be amended by the
Directors from time to time.
Section 3. Architectural Committee. "Architectural Committee" shall mean and refer to
the architectural committee of the Association appointed by the Board of Directors pursuant to
Article VII hereof.
Section 4. Articles of Incorporation. "Articles of Incorporation" or "Articles" shall
mean the Articles of Incorporation of Palomar Concourse, which have been or will be filed in the
office of the California Secretary of State, as the same may be amended from time to time.
Section 5. Assessment. "Assessment" shall mean a Common Assessment, a Special
Assessment, or a Reimbursement Assessment as hereinafter defined.
Section 6. Association. "Association" shall mean and refer to the PALOMAR
CONCOURSE OWNERS ASSOCIATION, a California corporation (formed pursuant to the
General Nonprofit Corporation Law of the State of California), its successors and assigns.
Section 7. Board of Directors. "Board of Directors" or "Board" shall mean and refer to
the Board of Directors of the Association.
Section 8. Building. "Building" shall mean and refer to any building or structure or
portion thereof located on any Parcel in the Project Area. r : .
Section 9. Bylaws. "Bylaws" shall mean the Bylaws of the Association which have
been or will be adopted by the Board of Directors, as the same may be amended from time to
time.
Section 10. Class A Member. "Class A Member" shall mean and refer to any Owner of
a Parcel, other than Declarant.
Section 11. Class B Member. "Class B Member" shall mean and refer to Declarant or a
Consenting Lender (as defined in Article VII, Section 8) through a Foreclosure Transfer (as
defined in Article III, Section 10).
Section 12. CLUP. "CLUP" shall mean the McClellen-Palomar Airport Land Use Plan.
Section 13. Common Area. "Common Area" shall mean and refer to all the real property
and improvements, including, without limitation, open spaces, parking areas, landscaping,
driveways and other improvements which are owned by the Association for the common use and
enjoyment of all of the Owners.
Section 14. Common Assessment. "Common Assessment" shall mean the Assessments
levied for the purpose of covering the portion of the annual costs of operating the Association,
including expenses incurred in connection with any authorized function of the Association,
which are to be paid by each Member of the Association for purposes provided herein and
charged to such Owner and to the Parcel of such Owner.
70006423.3
Section 15. Declarant. "Declarant" shall mean and refer to PFA and its succes$ftq[ guf
assigns, 'if specifically designated in a duly recorded instrument as a successor or assign of
Declarant under this Declaration. However, a successor to Declarant by consolidation or merger
shall automatically be deemed a successor or assign of Declarant under this Declaration.
Section 16. Declaration. "Declaration" shall mean and refer to this Declaration of
Covenants, Conditions and Restrictions for Palomar Concourse, as it may be amended from time
to time.
Section 17. Front Lot Line. "Front Lot Line" shall mean and refer to the boundary line
or lines of a Parcel which abuts upon and has an entry and exit point on any street or streets.
Section 18. Front Yard. "Front Yard" shall mean and refer to the space between the
Front Lot Line and the parallel line touching the closest point of the nearest Building or other
structure to such lot line,
Section 19. Improvements. "Improvements" shall mean and refer to buildings, parking
areas, loading areas, fences, walls, signs, private roadways, walkways, storage areas and
structures of any type.
Section 20. Landscape Criteria. "Landscape Criteria" shall mean and refer to the
landscape criteria set forth in the Planning and Design Guidelines, as may be amended by the
Board of Directors from time to time.
Section 21. Landscape Easements. "Landscape Easements" shall mean and refer to non-
exclusive easements for access, ingress and egress over the Landscape Easement Areas for the
purpose of maintenance and landscaping.
Section 22. Landscape Easement Areas. "Landscape Easement Areas" shall mean and
refer to those areas on Parcels described in Exhibit C attached to this Declaration.
Section 23. Lighting Criteria. "Lighting Criteria" shall mean and refer to the lighting
criteria set forth in the Planning and Design Guidelines, as may be amended by the Board of
Directors from time to time.
Section 24. Member. "Member" shall mean and refer to every person or entity who or
which holds a membership in the Association, as provided in Article II, Section 2 of this
Declaration. In reference to a Member, the word "his" hereby includes "her", "their", and "its";
and the word "him" hereby includes "her", "them" and "it".
Section 25. Mortgage - Mortgagee - Mortgagor. Reference in this Declaration to a
Mortgage shall be deemed to include a deed of trust. Reference to a Mortgagee shall be deemed
to include the beneficiary of a deed of trust. Reference to a Mortgagor shall be deemed to
include the trustor of a deed of trust.
Section 26. Notice and Hearing. "Notice and Hearing" shall mean a written notice and
the opportunity for a public hearing before the Board or a forum appointed by the Board, in the
manner provided in the Bylaws.
70006423.3
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Section 27. Owner. "Owner" shall mean and refer to the record owner, whether one or
more persons or entities, of a fee simple interest in a Parcel, including Declarant with respect to
each Parcel owned by Declarant, but excluding those persons holding title as security for the
performance of an obligation.
Section 28. Parcel. "Parcel" shall mean and refer to any numbered plot of land shown
upon any recorded final tract or parcel map of the Property, excluding public streets or alleys and
the Common Area.
Section 29. Person. "Person" shall mean a natural person, a corporation, a partnership,
or any other entity capable of holding title to real property.
Section 30. Planning and Design Guidelines. "Planning and Design Guidelines" shall
mean and refer to the Palomar Concourse Planning and Design Guidelines applicable to the
Property, as may be amended by the Board of Directors from time to time, and which include,
without limitation, Site Planning Criteria, Architectural Criteria, Landscape Criteria, Lighting
Criteria, and Signage Criteria.
Section 31. Project Area. "Project Area" shall mean and refer to the entire Property
divided into Parcels including all structures thereon.
Section 32. Property. "Property" shall mean and refer to all the land described in Exhibit
A attached to this Declaration.
Section 33. Rear Lot Line. "Rear Lot Line" shall mean and refer to the boundary line of
a Parcel which is opposite and most distant from the Front Lot Line and which is not also a Side
Lot Line (it being noted that corner Parcels do not have any Rear Lot Line).
Section 34. Rear Yard. "Rear Yard" shall mean and refer to the space between the Rear
Lot Line and the parallel line touching the closest point of the nearest Building or other structure
to such lot line.
Section 35. Reimbursement Assessment. "Reimbursement Assessment" shall mean a
charge against a particular Owner and his Parcel for the purpose of reimbursing the Association
for expenditures and other costs of the Association in curing any violation of this Declaration or
the Planning and Design Guidelines directly attributable to the Owner, pursuant to this
Declaration, together with late charges and interest as provided herein.
Section 36. Regulations. "Regulations" shall mean and refer to all present and future
federal, state and local laws and regulations applicable to the Property.
Section 37. Side Lot Line. "Side Lot Line" shall mean and refer to any boundary line of
a Parcel which is not a Front Lot Line or Rear Lot Line and which extends to a Front Lot Line.
Section 38. Side Yard. "Side Yard" shall mean and refer to the space between a Side Lot
Line and the parallel line touching the closest point of the nearest Building or other structure to
such lot line.
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Section 39. Signage Criteria. "Signage Criteria" shall mean and refer to the signage
criteria set forth in the Planning and Design Guidelines, as may be amended by the Board of
Directors from time to time.
Section 40. Site Planning Criteria. "Site Planning Criteria" shall mean and refer to the
site planning criteria set forth in the Planning and Design Guidelines, as may be amended by the
Board of Directors from time to time.
Section 41. Special Assessment. "Special Assessment" shall mean a charge against each
Owner and his Parcel representing a portion of the costs to the Association for the purposes
described in Article III, Section 4 below.
Section 42. Zoning Code. "Zoning Code" shall mean and refer to the Carlsbad zoning
code, as amended from time to time.
ARTICLE II
MEMBERSHIP AND VOTING RIGHTS
Section 1. Organization. The Association is organized as a California non-profit mutual
benefit corporation under the California Nonprofit Corporation Law. The Association is charged..
with the duties and vested with the powers prescribed by and set forth in the Articles, Bylaws,
and this Declaration. Neither the Articles nor Bylaws shall, for any reason, be amended or
otherwise changed so as to be inconsistent with this Declaration. In the event that there should
exist any ambiguity in any provision of the Articles or Bylaws, then such provision shall be
consistent with the provisions of this Declaration.
Section 2. Membership. Every Owner of a Parcel shall automatically upon becoming
the owner of a Parcel be a Member of the Association, and shall remain a Member thereof until
such time as his ownership of a Parcel ceases for any reason, at which time his Membership in
the Association shall automatically cease. For each Parcel there shall be oh file with the
Association an address of record for an Owner, if different from the Parcel address, and a phone
number or numbers in case of emergency, all of which shall be kept current by the Owner.
Ownership of a Parcel shall be the sole qualification for membership in the Association, subject,
however, to the rights of certain lessees as set forth in Section 6 of this Article. All Memberships
shall be appurtenant to the Parcel owned, and with the exception of Declarant, a person or entity
shall be deemed an Owner of a Parcel only upon recordation of a deed conveying the Parcel to
him. Except as may otherwise be provided herein, the rights, duties, privileges and obligations of
all Members of the Association shall be as provided in this Declaration and in the rules of the
Association adopted by the Association in accordance with the Bylaws of the Association.
Section 3. Transfer. The membership held by any owner shall not be transferred,
pledged or alienated in any way, except upon the sale or encumbrance of his Parcel, and then
only to the purchaser or deed of trust holder of said Parcel. A membership may only be
hypothecated with the Parcel to which it is appurtenant (and shall pass with the ownership of
such Parcel). Any attempt to make a prohibited transfer is void, and will not be reflected upon
the books and records of the Association. Any Member who has sold his Parcel to a contract
purchaser under an agreement to purchase shall be entitled to delegate to such contract purchaser
his membership rights in the Association. Such delegation shall be in writing and shall be
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delivered to the Board of Directors before such contract purchaser may vote. However, the
contract seller shall remain liable for all charges and Assessments attributable to his Parcel until
fee title to the Parcel sold is transferred, as provided in this Declaration. Upon the sale or other
transfer of a Parcel by the Owner thereof, the purchaser shall be deemed to have acquired the
Membership registered in the name of the seller or transferor thereof, and the Board of Directors
shall record the transfer upon the books of the Association. The Board of Directors shall have the
right to charge a reasonable Reimbursement Assessment against any Owner equal to the cost to
the Association of effectuating any such transfer of his Membership upon the books of the
Association.
Section 4. Voting Rights. The Association shall have two (2) classes of voting
membership. When more than one (1) person holds an interest in any Parcel, all such persons
shall be Members. The vote of such members shall be exercised as they among themselves
determine, but in no event shall there be more than the number of votes allocable to the Parcel
owned by such Members.
(a)Class A Members. Class A Members shall be comprised of all Owners of
Parcels, other than Declarant. Each Class A Member shall be entitled to one (1) vote per 1/4 acre
or portion thereof of land contained in the Parcel owned by such Class A Member.
(b)Class B Members. Each Class B Member shall be entitled to three (3) votes
per 1/4 acre or portion thereof of Property owned by such Class B Member. ; ;
_A11 voting rights shall be subject to the restrictions and limitations provided in this
Declaration and in the Articles of Incorporation and Bylaws of the Association. If more than one
person is an Owner of a Parcel, each such Owner shall be deemed to be a Class A Member or
Class B Member, as applicable; however, the number of votes to which the Owners of such
Parcel are entitled shall be calculated as if such Parcel were owned by only one person. The
number of votes shall be allocated among the Owners of a Parcel as determined by such Owners.
Acreage of a Parcel shall be as shown on the Tract or Parcel Map which creates such portion of
the Property as a legal parcel.
Section 5. Approval by Total Membership. Notwithstanding anything to the contrary
as may be contained elsewhere in this Declaration, any action by the Association which must
have the approval of the membership of the Association before being undertaken shall require
the vote or written assent of the required percentage of the total membership.
Section 6. Membership Rights of Certain Lessees. All persons who are lessees of a
Parcel under a lease for a term of at least one (1) year may appear and speak by permission of the
Board of Directors, but may not vote, at meetings of the Owners or of the Board of Directors.
An Owner may grant to his lessee for the term of any such lease, the Owner's right to the use,
enjoyment and occupancy of the Common Areas within the Project Area. Such delegation shall
be made on a triplicate form provided by the Association (one copy each to Owner, Lessee(s),
and Association), which form shall subject Lessee(s) to all of the terms and conditions of this
Declaration, and shall be delivered to the Board of Directors in order to be effective.
70006423.3
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ARTICLE III
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Covenant to Pay Assessments. Declarant, on behalf of itself, and for each
Parcel owned, hereby covenants, and each Owner of any Parcel by acceptance of a deed therefor,
whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to
the Association: (1) Common Assessments, (2) Special Assessments, and (3) Reimbursement
Assessments, all such Assessments to be established and collected as hereinafter provided. Each
of the Assessments, together with interest, cuts and reasonable attorneys' fees, shall be the
personal obligation of the person who was the Owner of such Parcel at the time the Assessment
fell due. The personal obligation for delinquent Assessments shall not pass to such person's
successors in title unless expressly assumed by them. Notwithstanding that such personal
obligation shall not pass, the lien for any such delinquent Assessments shall remain in effect with
respect to the Parcel upon passage of title.
Section 2. Purpose of Assessments. The Assessments levied by the Association shall be
used exclusively for the improvement, operation and maintenance of the Common Area and the
Landscape Easement Area, including without limitation, the payment of real properly taxes for
the Common Area and the performance of the duties of the Association with respect to the
Common Area and the Landscape Easement Area set forth in this Declaration, the: Carlsbad
Zoning Code (the "Zoning Code"), and other local, state, or federal laws or regulations, and any
amendments to each of the foregoing, and the accounting, administration and operation of the
Association. "
Section 3. Common Assessments. The Common Assessment must be in an amount
sufficient to include the cost of accounting, administration and operation of the Association, and
adequate reserve fund for landscaping, maintenance, repairs and replacement of those elements
of the Common Area that must be landscaped, maintained, repaired or replaced on a periodic
basis, and such reserve fund shall be collected as a regular and not special Assessment. The
amount and time of payment of the Common Assessment against each Parcel shall be determined
by the Board of Directors in accordance with Sections 7 and 8 of this Article III, giving due
consideration to the current maintenance costs and future needs of the Association. The Common
Assessment against each Parcel shall not be increased more than 20% over the Common
Assessment for the preceding year against each Parcel without the vote or written consent of a
majority of the total voting power of the Association.
Section 4. Special Assessments. In addition to the Common Assessment authorized
above, the Association may levy, from time to time, one or more Special Assessments for the
purpose of defraying, in whole or in part: (a) the cost of performing the duties of the Association
required by this Declaration, the Regulations, Zoning Code, and other local, state or federal laws
or regulations and any amendments to each of the foregoing; (b) the cost of any construction,
reconstruction, restoration or repair of or in the Common Area, the Landscape Easement Area, or
any portion thereof; (c) the repair or replacement of a capital improvement within the Common
Area or Landscape Easement Area, including fixtures and personal property related thereto; and
(d) any other action or undertaking on behalf of the Association. The amount and time of
payment of any Special Assessment shall be determined by the Board of Directors in accordance
with Section 7 of this Article III.
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Section 5. Reimbursement Assessments. The Association may levy a Reimbursement
Assessment against any Owner who fails to comply with the provisions of this Declaration, the
Association's Articles or Bylaws, or any rule or regulation adopted by the Association, if such
failure results in the expenditure of monies by the Association in carrying out its functions herein
or for purposes of collecting any fines which may be levied by the Association. Such Assessment
shall also be for the purpose of reimbursing the Association for any repair or damage by any
Owner or Owner's lessee, agent or invitee (outside of normal wear and tear) to the Common
Area or Landscape Easement Area. Such Reimbursement Assessment shall be limited to the
amount so expended, and shall be due and payable to the Association when levied.
Section 6. Notice and Quorum for Meetings Called Under Section 3. Written notice of
any meeting called to approve an increase in the Common Assessment greater than 20% of the
Common Assessment for the preceding year under Section 3 shall be sent to all Members not
less than ten (10) days nor more than sixty (60) days in advance of the meeting. At any such
meeting called, the presence of Members or of proxies entitled to cast more than fifty percent
(50%) of all of the votes of the total membership shall constitute a quorum. If the required
quorum is not present, another meeting may be called subject to the same quorum requirement.
Section 7. Allocation and Timing of Assessments. The due dates for the payment of
both Common and Special Assessments shall be that established by the Board of Directors. Each
Parcel's pro rata share of both Common and Special Assessments shall be based upon the net
useable building area of the Parcel as set forth in Exhibit D and any supplements thereto. Each
Owner covenants not to develop its Parcel beyond the net useable building area of such Parcel.
The net useable building area of a Parcel or Parcels may be modified from time to time'either by:
(1) an individual Parcel being further subdivided with the approval of the Association; or (2)
written agreement between two or more Parcel Owners to reallocate net useable building area
between their respective Parcels so that any increase in one or more Parcels is offset by an equal
decrease in one or more other Parcels. Any such reallocation shall not become effective until a
supplement to Exhibit D setting forth the revised net useable building areas for the Parcels, is
signed and recorded by the Owners of all Parcels affected. The recorded document shall be sent
directly to the Association after its recordation. Upon such recordation, the Association shall
reallocate its assessments consistent with the recorded supplement to Exhibit D.
Section 8. Date of Commencement of Common Assessments. The Common
Assessments provided for herein shall commence as to all Parcels covered by this Declaration
(including those Parcels owned by Declarant) at such time as determined by the Board of
Directors. The first Common Assessment shall be adjusted according to the number of months
remaining in the fiscal year of the Association. The Board of Directors shall fix the amount of
the Common Assessment against each Parcel at least sixty (60) days in advance of each fiscal
year of the Association. Written notice of the amount of the Common Assessment against each
Parcel shall be sent to every Owner subject thereto. In the event the Board of Directors shall
determine at any time that the estimate of the Common Assessment for the current fiscal year is,
or will become, inadequate to meet the expenses of the Association for any reason, it shall
immediately determine the approximate amount of such inadequacy and issue a supplemental
estimate of the total Association expenses and determine the revised amount of the Common
Assessment against each Owner. The Association shall upon demand, and for reasonable charge,
furnish a certificate signed by an officer of the Association setting forth whether the Assessments
on a specified Parcel have been paid. Said signed certificate shall be conclusive evidence as to
9433
all third parties relying thereon to show that all Assessments acknowledged therein have been
paid, but shall not relieve any Owner of the responsibility for Assessments not in fact paid.
Section 9. Effect of Nonpayment of Assessments; Remedies of the Association. Each
Owner of any Parcel on becoming an Owner of any Parcel, is and shall be deemed to covenant
and agree to pay to the Association the Assessments provided for in this Declaration; and agrees
to the enforcement of all such Assessments in the manner herein specified. In the event an
attorney or attorneys are employed for collection of any Assessment, whether by suit or
otherwise, or to enforce compliance with or specific performance of the terms and conditions of
this Declaration, Owner agrees to pay reasonable attorneys' fees and costs thereby incurred in
addition to any other amounts due or any other relief or remedy obtained against said Owner.
Any Assessment not paid within fifteen (15) days after the date on which it becomes due shall
thereafter bear interest from the date of delinquency at the rate of Bank of America prime
(reference) plus two percent (2%) per annum, but not to exceed the maximum rate allowed by
law. In addition to any other remedies herein or by law provided, the Board, or its authorized
representative, may enforce the obligations of the Owners to pay the Assessments provided for in
this Declaration, by either or both of the following procedures:
(a)Enforcement by Suit. A suit at law maintained in the name of the Association'
may be brought against any Owner or Owners personally obligated to pay such ./delinquent
Assessments. Any judgment rendered in any such • action shall include the amount'of the
delinquency, together with interest thereon as provided for herein, costs of collection-'court costs
and reasonable attorneys' fees in such amount as the Court may adjudge against the' delinquent
Owner. A suit to recover a money judgment for unpaid Assessments shall be maintainable:
without foreclosing or waiving the lien hereinafter provided for. u i«- ^
(b)Enforcement by Lien. There is hereby created a claim of lien, with power of
sale, on each and every Parcel to secure payment to the Association of any and all Assessments
levied against any and all Owners of such Parcels pursuant to this Declaration, together with
interest thereon as provided for in this Declaration, and all costs of collection which may be paid
or incurred by the Association in connection therewith, including reasonable attorneys' fees. At
any time after the occurrence of any delinquency in the Assessment, the Board of Directors, or
any authorized representative thereof, may make a written demand for payment to the delinquent
Owner. Said demand shall state the date and amount of the delinquency. Each delinquency shall
constitute a separate basis for a demand or claim of lien or a lien, but any number of defaults
may be included within a single demand or claim of lien or lien and any demand or claim of lien
or lien on account of prior delinquencies shall be deemed to include subsequent delinquencies
and amounts due on account thereof. If such delinquency is not paid within ten (10) days after
delivery of such demand, the Board of Directors or its duly authorized representative may
thereafter elect to file and record a claim of lien on behalf of the Association against the Parcel of
the defaulting owner in the Office of the County Recorder of San Diego County. Such claim of
lien shall be executed and acknowledged by any officer of the Association and shall contain
substantially the following information:
(1) The name of the delinquent Owner;
(2) The legal description of the Parcel against which such claim of lien is
made;
7000(^171
9434
(3) The total amount claimed to be due and owing for the amount of the
delinquency, interest thereon, collection costs, and estimated attorneys'
fees (with any proper offset allowed);
(4) That the claim of lien is made by the Association pursuant to this
Declaration; and
(5) That a claim against said Parcel in an amount equal to the amount stated,
with all other amounts becoming due from time to time in accordance with
this Declaration.
Upon such recordation of a duly executed original or copy of such a claim of lien,
the lien claimed therein shall immediately attach and become effective in favor of the
Association as a lien upon the Parcel against which such Assessment was levied. Such a lien
shall have priority over all liens or claims recorded subsequent to the recordation of such lien,
except for certain general and special real property taxes and assessments. Any such lien may be
foreclosed by appropriate action in Court or in the manner provided in the California Civil Code
for the foreclosure of a deed of trust with power of sale, or in any other manner permitted by law.
The Board is hereby authorized to appoint its attorney, any officer or director of the Association,
or any title company authorized to do business in California, as Trustee for the purpose of
conducting such power of sale foreclosure. The lien provided for herein shall be in favor of the
Association and shall be for the benefit of all other Owners and shall secure payment of ail sums
set forth in the claim of lien together-with all sums becoming due and payable in accordance with
this Declaration after the date of recordation of said claim of lien. The Association shall'have the
power to bid at any foreclosure sale and to purchase, acquire, hold, lease, mortgage and convey
any Parcel. In the event such foreclosure is by action in Court, attorneys' fees, court costs, title
search fees, interest and all other costs and expenses shall be allowed to the extent permitted by
law. Each Owner, by becoming an Owner of a Parcel, hereby expressly waives any objection to
the enforcement and foreclosure of a lien in this manner and also hereby expressly waives the
defense of the Statute of Limitations applicable to the bringing of any suit or action thereon.
Upon the timely curing of any default for which a notice of claim of lien was filed by the Board
and the payment of all sums secured by the lien created by the recordation of such claim of lien,
the Board shall cause an officer of the Association to file and record an appropriate release of
such claim of lien in the office of the County Recorder of San Diego, California.
Notwithstanding anything contained in this Declaration to the contrary, no action may be brought
to foreclose the lien created by recordation of a claim of lien, whether judicially by power of
sale, or otherwise, until the expiration often (10) days after a copy of said claim of lien, showing
the date of recordation thereof has been mailed to the owner of the Parcel which is described in
such claim of lien.
Section 10. Subordination to Certain Trust Deeds. The lien for the Assessments
provided for herein in connection with a given Parcel shall not be subordinate to the lien of any
deed of trust or mortgage, except the lien of a deed of trust or mortgage, and secured advances
thereunder, given and made in good faith and for value that is of record as an encumbrance
against such given Parcel prior to the recordation of a claim of lien for the Assessments provided
for in this Declaration against such given Parcel (such deed of trust or mortgage hereinafter
referred to as a "Prior Deed of Trust"). The sale or transfer of any Parcel shall not affect the
Assessment lien created or provided for by this Declaration to secure Assessments becoming due
whether prior to, on or after the date of such sale or transfer, nor shall such sale or transfer
diminish or defeat the personal obligation of any Owner for delinquent Assessments as provided
70006471 T 10
9435
for by this Article; provided, however, that the sale or transfer of any Parcel pursuant to a
judicial foreclosure or foreclosure by power of sale of a Prior Deed of Trust ("Foreclosure
Transfer") shall extinguish any Assessment lien which has attached and become effective with
regard to a Parcel being so transferred prior to the time of a Foreclosure Transfer, and shall
prohibit the creation of any Assessment lien against such Parcel on account of Assessments
which became due prior to the date of such Foreclosure Transfer. The interest of a purchaser
through a Foreclosure Transfer shall be subject to the terms of this Declaration and all
Assessments which become due after the date of any such Foreclosure Transfer. For the purpose
of this Section 10, a sale or transfer of a Parcel shall occur on the date of recordation of a deed or
other instrument of title evidencing the conveyance of record title to the Parcel.
ARTICLE IV
MANAGEMENT OF THE ASSOCIATION AND THE PROJECT AREA
Section 1. General Powers of the Association. All powers relating to the management,
operation and maintenance of the Property and of the Common Area, as well as certain rights,
duties and powers relating to the individual Parcels, as hereinafter set forth, shall be vested in the
Association and in its Board of Directors. The specific and primary purposes and powers of the
Association and its Board of Directors are to manage and, if required hereby, to maintain,
portions of the Project Area, including the Common Area and the Landscape .Easement Area as
provided herein, and to enforce the provisions of this Declaration and the Association's Article
and Bylaws, and any other,instruments relating to the management and control .of the
Association and the Property. The Association shall have the right and power to employ or
engage a manager and other employees or agents and contract for such services^ labor and
materials as it may deem reasonably necessary to operate and maintain the Common Area,
Landscape Easement Area and the Improvements thereon and to discharge its other duties as
herein provided. Any manager, agent or employee selected prior to the first annual election shall
be employed to manage or work only until such time as the continuance of the same or the
selection of a new manager or agent shall be determined by the Board of Directors elected at the
first annual meeting of members. The Association may do any and all other acts and things that
a nonprofit corporation is empowered to do, which may be necessary, convenient, or desirable in
the administration of its affairs for the specific and primary purposes of meeting the duties of the
Association as set forth in this Declaration. The Association, through its Board of Directors, shall
have the authority to delegate its powers to committees, officers of the Association or its
employees.
Section 2. Specific Powers and Duties of the Association. In addition to the duties and
powers enumerated in its Articles of Incorporation and Bylaws, or elsewhere provided for herein,
and without limiting the generality thereof, the Association shall:
(a) Landscape, maintain and repair the Common Area within the Project Area and
any common improvements thereon or therein;
(b)Landscape and maintain the Landscape Easement Areas;
(c)Maintain such policy or policies of insurance as set forth in this Declaration,
together with such other types of insurance as the Association determines is in the best interest of
the Association and its Members;
7(100642.13 1 1
9436
(d)Obtain, for the benefit of the Common Area and the Landscape Easement
Area, water and electric service;
(e)Pay the taxes and Assessments which are or could become a lien on the
Common Area or any portion thereof; and
(f) Prepare budgets and financial statements for the Association and its members
as prescribed in the Bylaws of the Association; and
The Association may, but need not ensure proper compliance with the
Regulations, Zoning Code, and CLUP, as each may be amended from time to time, and any other
rules, requirements, or regulations imposed on the Property or Project Area by local, state or
federal authorities.
Section 3. Repair and Maintenance of the Parcels by Owners. Except for the
maintenance of the Landscape Easement Areas (which shall be the obligation of the
Association), each Owner shall repair, replace, restore and maintain at his sole cost, all portions
of any Building on his Parcel including, without limitation, the roofs, exteriors, walls, ceilings,
windows, floors and doors and all exterior improvements, including, without limitation, parking
areas, lighting, storm water quality treatment facilities, storm drain facilities, landscaping to the
front curb and boundaries of the Parcel (except for Landscape Easement Areas), private
driveways, walkways and signs, all in a clean, sanitary, well groomed and attractive condition. If
the required repair and maintenance is not completed within sixty (60) days of receipt of written;
notice from the Association, then the Association or its representatives may enter the Parcel and
complete such repair and maintenance. The cost for such work shall be payable by the Owner of
the Parcel to the Association within thirty (30) days following delivery of a written statement of
said costs to Owner and such amount shall bear interest at the rate of Bank of America prime
(reference) plus two percent (2%) per annum from the time the work was done until fully paid,
not to exceed the maximum amount allowed by law.
Section 4. Repair of Common Areas by or at the Expense of Owners. In the event the
Board shall determine that any Owner, or Owner's lessee, agent or invitee has, through act or
omission, damaged (outside of normal wear and tear) any portion of the Common Area or the
Landscape Easement Area, the Owner who has caused such damage shall be responsible for
repairing the damage (including reconstruction) in a timely manner and in accordance with such
rules as the Board shall from time to time adopt. In the event such repair is not so accomplished
by the Owner, the Association or its representatives shall have the right to effect such repair, and
the cost thereof shall be charged to the Owner who has caused such damage and, if not paid in a
timely manner, shall be deemed a Reimbursement Assessment.
Section 5. Rules Regarding Use of Common Area. The Association may adopt from
time to time reasonable rules relating to the use and operation of the Common Area and any
Improvements thereon. A copy of such rules and of all amendments thereto shall be mailed to
each Owner of a Parcel.
Section 6. Entry onto Parcels. The Association and its representatives shall have the
right to enter upon any Parcel within the Project Area to the extent such entry is reasonably
necessary in connection with the performance by the Association of its duties and responsibilities
under this Article or under this Declaration, specifically including, without limitation, the
70006423.3 12
9437
construction, maintenance or repair of the Common Area, the Landscape Easement Area or any
portion thereof. In addition, until a building is commenced on a Parcel, each such vacant Parcel
shall be subject to a non-exclusive easement for entry onto such Parcel for the benefit of the
adjacent Parcels, so that the Owner of such adjacent Parcel may effect the Initial Construction or
any necessary repairs to the improvements on his Parcel or any portion thereof, or in connection
with any emergency for the benefit of any Parcel or the Common Area. Any entry onto a Parcel
shall be limited to only that which is reasonable and necessary. Any Owner entering the
property of another shall give ten (10) days prior written notice of such proposed entry (except in
the case of an emergency) specifying the location of such entry and the reason therefor (the
"Entry Notice"). In addition, if an Owner cannot feasibly construct or repair such Owner's
Parcel without entering the Parcel of another (even if such other Owner's Parcel has been
developed with a building), the entering Owner may enter the Parcel of the contiguous Owner so
long as the requirements set forth in this section are met. The party entering the property of
another shall provide said Owner with an insurance certificate with reasonable coverage and
indemnity covering such entry and shall promptly repair any damage caused as a result of such
entry. In no event shall any Owner entering the Parcel of another cause any damage to any
building on such other Owner's Parcel or otherwise interfere with the business on such other
Owner's Parcel.
ARTICLE V
PROPERTY RIGHTS AND EASEMENTS
Section 1. Common Area Easements. Declarant expressly reserves for the benefit of
the Association and its Board, and all agents, officers and employees of the Association non-
exclusive easements over the Common Areas as necessary to landscape, maintain and repair the
Common Areas and to perform all other tasks in accordance with the provisions of this
Declaration. Declarant expressly reserves for itself and for the benefit of the Association, the
right to grant additional easements and rights of way to utility companies and public agencies, as
reasonably necessary, for the proper development and disposal of the Project Area. Any such
easements reserved shall not unduly impact the use of a Parcel by the Owner thereof. .
Section 2. Easements Over Parcels. Declarant expressly reserves for the benefit of the
Association, non-exclusive easements for access, ingress and egress over the Landscape
Easement Areas for the purpose of maintaining and landscaping the Landscape Easement Area.
The easements over the Landscape Easement Area may be used by the Association or any
manager, employee, agent, or representative for the purposes stated and shall be appurtenant to
and shall pass with the title to those Parcels within the Landscape Easement Areas.
Section 3. Encroachment Easements. Each Parcel and the Common Area is hereby
declared to have an easement over all adjoining Common Area for the purpose of
accommodating any encroachment due to engineering errors, errors in original construction,
settlement or shifting of any Building, or any other similar cause, and any encroachment due to
building overhang or projection whether roof, eaves or otherwise. There shall be valid
easements for the maintenance of said encroachments so long as they shall exist, and the rights
and obligations of Owners shall not be altered in any way by said encroachment, settling or
shifting; provided, however, that in no event shall a valid easement for encroachment be created
in favor of an Owner or Owners if said encroachment occurred due to the willful act or acts of
said Owner or Owners. In the event a structure on any Parcel is partially destroyed, and then
70006423.3 13
9438
repaired or rebuilt, minor encroachments over adjoining Common Areas shall be permitted, and
there shall be valid easements for the maintenance of said encroachments so long as they shall
exist. An Owner shall permit other Owners, or their representatives, to enter onto his Parcel for
the purpose of performing repairs to the plumbing or irrigation lines at a Parcel, provided that
such right to repair is as a result of an emergency and there is imminent danger of damage to the
Property of the Owner who enters the Parcel of another.
Section 4. Title to the Common Area. Declarant hereby covenants for itself, its
successors and assigns, that it will convey to the Association fee simple title to the Common
Area in the Property, free and clear of any and all, encumbrances and liens, except existing
mortgages, and subject to reservations, easements, covenants and conditions then of record,
including those set forth in this Declaration. Said conveyance shall be made prior to the
conveyance of the first Parcel to a purchaser from Declarant.
Section 5. Owners' Rights and Duties: Utilities. The rights and duties of the Owners of
Parcels within the Properties with respect to sanitary sewer and water, electricity, gas, or
telephone and cable television lines or drainage facilities shall be governed by the following:
(a) Wherever sanitary sewer connections and/or water connections or electricity,
gas, or telephone and cable television lines or drainage facilities are installed within the Property,
which connections, lines or facilities, or any portion thereof, lie in or upon Parcels owned by..
persons other than the Owner of a Parcel served by said connections, the Owners of any Parcels
served by said connections, lines or facilities shall have the right, and are hereby granted an
easement to the extent reasonably necessary therefor, to enter upon the Parcels or to have'Utility -
companies enter upon the Parcels within the Property in or upon which said connection, lines or
facilities, or any portion thereof, lie, to repair, replace and generally maintain said connections as
and when the same may be necessary as set forth below, provided that any entry onto a Parcel
shall be limited to only that which is reasonable and necessary, with the Owner of said Parcel
receiving ten (10) days prior written notice of such proposed entry specifying the location of
such entry and the reason therefor. The party entering the property of another shall promptly
repair any damage caused as a result of such entry. In no event shall any Owner entering the
Parcel of another cause any damage to any building on such other Owner's Parcel.
(b)Wherever sanitary sewer connections and/or water connections or electricity,
gas or telephone or cable television lines or drainage facilities are installed within the Property,
which connections serve more than one Parcel the Owner of each Parcel served by said
connections shall be entitled to the full use and enjoyment of such portions of said connections as
service his Parcel.
Section 6. Continuing Covenants. Each of the easements provided for in this
Declaration shall be deemed to be established upon the recordation of this Declaration, and shall
thenceforth be deemed to be covenants running with the land for the use and benefit of the
Parcels and the Common Area, as the case may be, superior to all other encumbrances applied
against or in favor of any portion of the Property which is the subject of this Declaration. In
furtherance of the easements provided for in this Declaration, the individual grant deeds to
Parcels may, but shall not be required to, set forth said easements.
70006423.3 14
9439
ARTICLE VI
USE RESTRICTIONS
Except as provided above, the Property shall be held, used, enjoyed and developed
subject to the following limitations and restrictions:
Section 1. Use of Parcels. The Parcels and structures thereon may be used for any use
as permitted by the Regulations, the Zoning Code, the CLUP, other local, state, or federal laws
or regulations, and any amendments to each of the foregoing, except as restricted by the
following:
(a) No project facilities located within 1,000 feet of any residential unit shall
store, handle, or use toxic gases as defined in the most currently adopted fire code at quantities
which exceed exempt amount as defined in the most currently adopted fire code.
(b) Facilities which store, handle or use regulated substances as defined in the
California Health and Safety Code 25532(g) in excess of threshold quantities shall prepare risk
management plans for determination of risks to the community.
(c) Facilities which store, handle, or cause any quantity of a toxic or highly .. ;
toxic gas as defined in the most currently adopted fire code which are also regulated substances
as defined :in the California Health and Safety Code 25532(g) shall prepare ari ^offsite
consequence analysis (OCA). The analysis shall be performed in accordance with Title 19 of the
California Code of Regulations 2750,2 through 2750.3. If the OCA shows the release could
impact the residential community, the facility will not store, handle or use the material in those •.
quantities. If a decrease on the quantity of material reduces the distance to toxic endpoint to
where the community is not impacted, the facility shall be able to utilize the material in that
quantity.
(d) Models can be overlayed onto maps which will show the distance to toxic
endpoint in the event of a release. Models can be performed under "worst case" meteorological
and chemical release conditions. Under this situation, the maximum harm potential is
determined for the specifics of the material in questions. The use of these models is the most
sophisticated method available to ensure community safety.
Any use of a Parcel which may now or in the future require a use permit or
variance from the City of Carlsbad (or any future political subdivision including all or a portion
of the Property) must first be approved by a majority of the Board of Directors in order for such
use to be permitted under the terms of this Declaration.
Section 2. Site Development Standards. Each Parcel shall be developed and landscaped
in accordance with the Planned Industrial Ordinance (Chapters 21-34 of the Carlsbad Municipal
Code) standards contained in the Regulations, and with the provisions of the Zoning Code, the
CLUP, other local, state or federal laws or regulations, and any amendments to each of the
foregoing. In addition, each Parcel shall be developed and landscaped by the Owner thereof in
accordance with the Planning and Design Guidelines (including, without limitation, the
Architectural Criteria, Site Planning Criteria, Signage Criteria, Landscape Criteria and Lighting
Criteria of the Association), as amended from time to time. Copies of the Planning and Design
Guidelines shall be delivered to each new purchaser of a Parcel by the person selling such Parcel.
70006423.3 15
Section 3. Architectural Restrictions. Each Building within the Project Area shall be
subject to the following architectural requirements/restrictions:
(a) No placement of mechanical equipment on roofs unless project
incorporates architectural treatment consisting of architecture elements or parapets that are of
sufficient height and design to screen future mechanical roof equipment.
(b) No installation of roof screens other than building parapets or architectural
elements that are integrated into the architectural design of buildings.
(c) No loading bays that are visible from Palomar Airport Road or Melrose
Drive.
(d) Enhanced architectural treatment of all building elevations that are visible
from Palomar Airport Road or Melrose Drive.
Section 4. Building Setbacks. Notwithstanding any provision to the contrary in the
Regulations, the minimum setback requirements for each Parcel shall be as established in the
Planning and Design Guidelines. In the case of Parcels which contain Landscape Easement
Areas, the minimum set back requirements shall be diminished to the extent of any Landscape
Easement Areas located in the Front Yard, Side Yard or Rear Yard of such Parcel, and to the
extent that a Landscape Easement Area is equal to or greater than the minimum^set-back
requirement for the Front Yard, Side Yard or Rear Yard of a Parcel. Improvements mayvbe built
to abut the Landscape Easement Area. . •... :'./.. , . ;.^H;T the ,,:,;
Section 5. Nuisances - Environmental Control. Any permitted use on a Parcel shall be
performed or carried out entirely within a Building that is designed and constructed so that the
enclosed operation and uses do not raise or produce a nuisance to adjacent sites, such as but not
limited to the following: radio frequency interference, sound, vibration, electromechanical
disturbance, electromagnetic disturbance, radiation, air pollution, dust, odors, fumes, emission of
toxic or non-toxic matter, humidity, heat, cold, or glare. Exceptions may be permitted for light
industrial uses by approval of a use permit by the local Planning Commission or City Council.
The Board of Directors shall have the right to determine if any noise, odor, emission,
disturbance, or activity producing such noise, odor, emission, or disturbance constitute a
nuisance. No Owner shall permit or cause anything to be done or kept upon the Property which
will result in the cancellation of any insurance policy of the Association or any Owner or which
will obstruct or interfere with the rights of other Owners, nor will he commit or permit any
nuisance thereon. In the event any Owner permits or causes anything to be done or kept upon
the Property which increases the rate of any insurance policy of the Association or any Owner,
the Owner causing said increase in the rate of insurance shall be responsible for the payment of
such increase. Each Owner shall comply with all the requirements of the local and/or state
health authorities and with all other governmental authorities with respect to the occupancy and
use of a Parcel and its appurtenant services. Each Owner shall be accountable to the Association
and other Owners for the conduct and behavior of his employees, customers, tenants, guests, and
invitees; and any damages to the Common Area, personal property of the Association, or
property of another Owner, caused by such employees, customers, tenants, guests or invitees
shall be repaired or replaced at the sole expense of the Owner. In the event such repair is not
accomplished by the Owner, in a timely manner, the Association or its delegates shall have the
right to effect such repair, and the cost thereof shall be charged to the Owner of the Parcel and, if
70006423.3 16
9441
not paid in a timely manner, shall be deemed a Reimbursement Assessment. Each Owner shall
comply with all local, state, and federal requirements, regulations, and laws relating to the
production, care, storage and disposal of toxic and hazardous materials and hereby indemnifies
the Association and all other Owners for any toss, damage, injury or claim of any kind or
character to any person or property arising from or caused by said Owner's violation of said
requirements, regulations, or laws. Without limiting the generality of the foregoing, no toxic or
hazardous materials shall be buried, dumped or spilled on or under the Property.
Section 6. Signs. Signs shall be permitted in accordance with the Stgnage Criteria,
Regulations approved by the City as part of the Palomar Concourse Sign Program, and Zoning
Code, and any amendments thereto. No signs, posters, displays, or other advertising devices of
any character shall be erected or maintained on, or shown or displayed from the window of any
Building without the prior written consent of the Board of Directors; provided, however, that the
restrictions of this Section shall not apply to any professionally prepared sign or notice of
customary and reasonable dimension which states that the premises are for rent or sale. Such
sign or notice may be placed within a Building on a Parcel but not upon any portion of the
Common Areas. This Section shall not apply to any signs used by Declarant or its agents in
connection with the sale and/or lease of any Parcel in the Project Area.
Section 7. Off-Street Parking. Adequate off-street parking shall be provided to
accommodate all parking areas of employees, visitors arid company vehicles in accordance with
the Regulations, the Zoning Code, Site Planning Criteria and any amendments thereto. It is the
intent of this provision to eliminate the need for any on-street parking.
Section 8. Loading. All loading shall to performed on the Parcel. Loading platforms
and areas shall be screened from view from adjacent public streets, highways and residential
areas; provided, however, if a Parcel has public streets contiguous with the Rear Yard and
screening is not commercially feasible in the judgment of the Association, the requirement
hereof may be modified or waived; however, no loading bays shall be visible from Palomar
Airport Road or Melrose Drive in accordance with environmental mitigation requirements.
Hours for pick-up and delivery, including refuse pick-up, shall be governed by the Regulations
and any amendments thereto.
Section 9. Storage Areas. Cartons, containers, materials, products, trash and other
storage items shall be shielded from view in accordance with the Regulations and any
amendments thereto. No outdoor storage shall be allowed unless required by the City of
Carlsbad Fire Department.
Section 10. Entrance and Door Graphics. All entrance and door graphics must be
approved by and be in accordance with the Planning and Design Guidelines and such other
standards as are adopted from time to time by the Board of Directors.
Section 1L Animal Regulations. No animals of any kind shall be kept on any Parcel
without the prior written consent of the Board of Directors.
Section 12. Leasing of Buildings. Any Owner may lease all or a portion of his Parcel by
means of a written lease so long as the Parcel is not leased for a use prohibited by this
Declaration or by applicable governmental regulations. Any lease shall be required to provide
that the terms of any such lease shall be subject in all respects to the provisions of this
70006423.3 17
9442
Declaration and the Bylaws of the Association, and any failure by the lessee of such Parcel to
comply with the terms of this Declaration or the Bylaws of the Association shall constitute a
default under the lease.
Section 13. Utilities. All electricity, gas, telephone or cable television lines, together
with water connections, drainage facilities and sanitary sewer lines on any Parcel shall be
installed at the sole cost and expense of the Owner of such Parcel, and such lines and facilities
shall be built underground and otherwise in accordance with the Site Planning Criteria and the
Regulations.
ARTICLE VII
ARCHITECTURAL AND LANDSCAPING CONTROL
Section 1. Architectural Approval. No Improvement, exterior addition thereto, or
change or alteration thereof (including painting or landscaping), shall be commenced,
constructed, erected, placed, altered, maintained or permitted to remain on any Parcel or any
portion thereof, until plans and specifications shall have been submitted to and approved in
writing by the Architectural Committee, to be appointed by the Board of Directors. Said plans
and specifications shall be prepared by a duly licensed architect or other person approved by the
Architectural Committee and shall include, where appropriate, the following: (a) a.:
comprehensive masterplan shall be required when Parcel development occurs in stages; (b) plot
plans, for each stage of, or for total, Parcel development, showing the location of all structures
and showing grade elevations and drainage; (c) building plans, for each stage of, or for total,
Parcel development, including floor, foundation and roof plans, with all materials therefor; (d)
exterior elevations, surface, and sections, structural design and salient, exterior details; (e)
general exterior color schemes; and (f) landscaping plans, for each stage, or for total, Parcel
development, showing type, location and elevation of trees, bushes, shrubs, plants, hedges and
fences. All such plans and specifications shall be submitted in writing over the signature of the
Owner or such Owner's authorized agent.
Section 2. Number of Members and Term. The number of members to serve on the
Architectural Committee and the length of the terms of such members shall be determined by the
Board of Directors in its sole and absolute discretion.
Section 3. No Liability. The Declarant, the Association, the Board of Directors,
officers, agents and employees of the Association, the Architectural Committee, and the
members or designated representatives thereof shall not be liable in damages to anyone
submitting plans or specifications to them for approval, or to any Owner affected by this
Declaration by reason of mistake in judgment, negligence or nonfeasance arising out of or in
connection with the approval or disapproval or failure to approve or disapprove any such plans
or specifications, or for any defect in any structure constructed from such plans and
specifications. Such plans and specifications are not approved for safety features or engineering
design. Every person who submits plans or specifications to the Architectural Committee for
approval agrees, by submission of such plans and specifications, that he will not bring any action
or suit against the Declarant, the Architectural Committee, or any of the members or designated
representatives thereof to recover any such damages. If an action is brought, amounts expended
to defend such action, and all amounts recovered will be reimbursed by the plaintiff and the
70006423.3 18
9443
Association may levy a Special Assessment to reimburse the Association or committee or Board
member expending such sums.
Section 4. Rules and Regulations. Any guidelines for the approval of plans and
specifications submitted to the Architectural Committee in accordance with Section 1 of this
Article and any architectural standards for the Property which the Architectural Committee may,
from time to time, in its sole discretion adopt, shall be subject to the Planning and Design
Guidelines, Regulations, the CLUP, and any amendments thereto.
Section 5. Delegation. The Architectural Committee may, from time to time, by a
majority of the members thereof, delegate any of its rights or responsibilities hereunder to one or
more duly licensed architects or other qualified persons who shall have full authority to act on
behalf of said Architectural Committee in all matters delegated.
Section 6. Review Fee and Address. All plans and specifications required by Section 1
hereof shall be submitted in writing for approval together with a reasonable processing fee to be
established by the Architectural Committee. The address of the Architectural Committee shall
be designated by such Committee by a written instrument recorded in the office of the County
Recorder of San Diego County. The last instrument so recorded shall be deemed the
Architectural Committee's proper address. Such address shall be the place where the current
rules and regulations, if any, of such Committee shall be kept. ;
Section 7. Inspection. Any member of the Architectural Committee may, from time to
time, at any reasonable hour or hours and upon reasonable notice, enter and inspect ^any Parcel as
to any Improvements thereon to ensure compliance with the rules and regulations adopted from
time to time by the Architectural Committee. , ; v-
Sections. Nonapplicability to Declarant. The provisions of this Article shall not apply
to any Parcel owned by PFA prior to the sale of the last Parcel in the Project Area by PFA or to
the Lenders whose consents are attached hereto (a "Consenting Lender").
ARTICLE VIII
INSURANCE
Section 1. Mandatory. The Association and certain Owners shall obtain, to the extent
reasonably available, and continue in effect the following types of insurance and such other types
of coverage as deemed reasonable by the Board of Directors of the Association.
(a) Association. A comprehensive policy of general public liability insurance
covering the Property with a limit of not less than Two Million Dollars ($2,000,000.00) for
claims for personal injury and personal and real property damage arising out of a single
occurrence, such coverage to include protection against such risks as shall customarily be
covered or available with respect to planned unit developments and shall contain an endorsement
which shall preclude the insurer from denying the claim of an Owner because of negligent acts or
omissions of the Associations of other Owners;
(b)Owners. Those Owners with Landscape Easement Area on their Parcels shall
carry a comprehensive policy of general public liability insurance covering that portion of the
70006423.3 19
9444
Parcel within the Landscape Easement Area. The coverage shall be the same as the Association
is required to carry and shall name the Association as an additional insured on all such policies.
Section 2. Waiver by Members. As to each of said policies which will not be voided or
impaired thereby, the Members hereby waive and release all claims against the Association, the
Board, the Declarant and agents and employees of each of the foregoing with respect to any loss
covered by such insurance, whether or not caused by the negligence of or breach of any
agreement by said persons, but only to the extent of insurance proceeds received in
compensation for such loss.
Section 3. Other Insurance: Annual Review. The Association may purchase such other
insurance as it may deem necessary, including, but not limited to, fire and casualty insurance for
the Common Area, workers' compensation, directors' and officers' liability, errors and omission
insurance, fidelity insurance and blanket policies of hazard insurance for the Parcels. The Board
shall annually determine whether the amounts and types of insurance it has obtained provide
adequate coverage for the Association in light of inflation, practice in the area in which the
Project Area is located, or any other factor which tends to indicate that either additional
insurance policies or increased coverage under existing policies are necessary or desirable to
protect the interests of the Association. If the Board determines that increased coverage or
additional insurance is appropriate^ it shall obtain the same.; f; :
Section 4. Premiums and Proceeds. Insurance premiums for any such blanket insiirance'
coverage obtained by the Association and any other insurance deemed necessary;'by the
Association shall be an expense to be included in the Common Assessment levied^'by'the-
Association. The Association is hereby granted the authority to negotiate loss settlements with" v
the appropriate insurance carriers. Any two (2) directors of the Association may-sign;a Ibss^
claim form and release form in connection with the settlement of a loss claim, and such
signatures shall be binding on the Association and the Members.
Section 5. Fire and Casualty Insurance. All Owners shall obtain policies of fire and
casualty insurance with extended coverage for the full replacement value of the Building on each
Owner's Parcel, such insurance to afford protection against loss or damage by fire and other
hazards covered by the standard extended coverage policy of hazard insurance. Owners with a
net worth of at least $75,000,000 in 2002 dollars per latest financial statements certified by an
independent CPA may self insure casualty insurance.
ARTICLE IX
DAMAGE AND DESTRUCTION AFFECTING COMMON AREA
Section 1. Consent of Owners to Rebuild. If all or any portion of the Common Area is
damaged or destroyed by fire, or other casualty, then neither the Board, the Association, or any
agent or employee thereof shall be required or permitted to take an Action to repair or rebuild the
damaged portions, or to cause the damaged portions to be repaired or rebuilt without the written
consent of at least fifty-one percent (51%) of the voting power of the Owners as to the manner of
repair or reconstruction and the payment therefor, except as provided in Section 2 of this Article
in the event adequate insurance proceeds are available as set forth therein.
70006423.3 20
9445
Section 2. No Consent Required With Adequate Insurance. Notwithstanding anything
contained in Section 1 above to the contrary, if the cost of repairing or rebuilding the portion of
the Common Area so damaged or destroyed does not exceed the amount of insurance proceeds
available to the Association by more than ten percent (10%), the Board shall be authorized and
required without the consent or approval of the members, to contract to repair or rebuild the
damaged portions of the Common Area substantially in accordance with the original plans and
specifications therefor. In the event the cost of repairing and rebuilding exceeds the insurance
proceeds, the difference will be billed to the Owners on a pro rata basis as a Special Assessment.
In the event any excess insurance proceeds remain, or in the event of a decision by the
Association not to reconstruct or replace such damaged or destroyed Improvements, the Board,
in its sole discretion, may retain such sums in the general funds of the Association or distribute
pro rata all or a portion thereof to the Owners, subject to the prior rights of a Mortgagee whose
interest may be protected by insurance policies carried by the Association. The rights of an
Owner and the Mortgagee on his Parcel as to such pro rata distribution shall be governed by the
provisions of the Mortgage encumbering such Parcel.
ARTICLE X
ANNEXATION
The real property described in Exhibit B ("Annexation Area") or any portion of it may be
annexed to the Property and made subject to this Declaration at the written election of the
declarant (or by the successors in title to such real property). Such election shall be made by the
recording of a Supplement to this Declaration (the "Supplement"). The Supplement shall
describe the real property to be annexed, shall state that it is being effected pursuant to-the terms
of this Declaration for the purpose of annexing the property described in the Supplement to the
Declaration. Any Supplement recorded in accordance with the terms of this Section shall be
conclusive in favor of all persons who relied on it in good faith. Upon recording the Supplement
in accordance with the provisions of this Declaration, the real property described in the
Supplement shall be part of the Property and subject to the provisions of this Declaration, and to
the rights and powers of the Association pursuant to the terms of this Declaration, the Articles,
and the Bylaws, and thereafter all of the Owners of Parcels constituting a portion of the annexed
real property shall automatically be members of the Association, with voting rights commencing
on the date regular assessments commence. Regular and special assessments with respect to the
annexed real property shall commence at the time and to the extent established by the Board of
Directors as provided in this Declaration.
Declarant in such Supplement shall expressly reserve, for the benefit of all property that
may from time to time be covered by this Declaration, reciprocal easements of use, enjoyment,
access, ingress and egress. Such easements may be used by Declarant, its successors,
purchasers, and all Owners of Parcels, their guests, tenants and invitees, for sidewalks,
walkways, vehicular access, and such other purposes reasonably necessary to use the use and
enjoyment of all Parcels in the Property. The Supplement may contain complementary
additions, amendments, and modifications to this Declaration necessary to reflect the different
character, if any, of the real property being annexed, which are not inconsistent with the general
scheme of this Declaration.
9446
ARTICLE XI
EMINENT DOMAIN
The term "taking" as used in this Article shall mean condemnation by eminent domain or
sale under threat of condemnation. In the event of a threatened taking of all or any portion of the
Common Area or the Improvements thereon, the Owners hereby appoint the Board and such
persons as the Board may delegate to represent all of the Owners in connection with the taking.
The Board shall act in its sole discretion with respect to any awards being made in connection
with the taking and shall be entitled to make a voluntary sale to the condemnor in lieu of
engaging in a condemnation action. Any awards received on account of the taking shall be paid
to the Association. In the event of a taking of less than all of the Common Area, the provisions
as to restoration and replacement of the Common Area and the Improvements thereon shall apply
as in the case of destruction of Improvements upon the Common Area. In the event of a total
taking, the Board may in its sole discretion retain any award in the general funds of the
Association or distribute pro rata all or a portion thereof to the Owners. The rights of an Owner
and the Mortgagee and his Parcel as to such pro rata distribution shall be governed by the
provisions of the Mortgage encumbering such Parcel.
ARTICLE XII
; v;:;. : RIGHTS OF LENDERS ,
Notwithstanding any provisions to the contrary as may be provided elsewhere in this
Declaration, Lenders shall have the following rights: , ;.?
Section 1. Notice to Mortgagees on Default. Any Mortgagee of a Parcel shall be
entitled to receive, upon written request to the Association, written notification from the
Association of any default by the Owner (trustor) of such Parcel in the performance of such
Owner's obligations under the Declaration or the Association's Articles or Bylaws which is not
cured within thirty (30) days from the date of such default.
Section 2. Assessments on Foreclosure. Any mortgagee who obtains title to a Parcel
pursuant to the remedies provided in the Mortgage (exclusive of a deed in lieu of foreclosure), or
through foreclosure of the Mortgage, shall not be liable for any claims for unpaid Assessments or
charges against such Parcel which accrued prior to the acquisition of title to such Parcel by such
Mortgagee, except if a lien therefor is recorded prior to the date of recordation of such Mortgage,
pursuant to Article III above.
Section 3. Required Consent of Owners. Unless at least seventy-five percent (75%) of
the voting power of the Owners have given their prior written approval, the Association and the
Owners shall not be entitled to:
(a) Change the method of determining the obligations, Assessments (whether
Common, Special or Reimbursement), dues or other charges which may be levied against the
Owner of a Parcel;
~n
9447
(b)By act or omission seek to abandon, partition, release, subdivide, encumber,
sell or transfer any Property or any Improvements which are owned, directly or indirectly, by the
Association;
(c)By act or omission change, waive or abandon any scheme of regulations, or
enforcement thereof, pertaining to the upkeep of the Common Areas within the Property;
(d)Use hazard insurance proceeds for losses to the Common Area for other than
the repair, replacement or reconstruction of such Improvements;
(e)Fail to maintain fire and extended coverage insurance on insurable Common
Area property, on a current replacement cost basis in an amount not less than one hundred
percent (100%) of the insurable value (based on current replacement cost);
(f) Abandon or terminate the Association, except for abandonment, partition or
termination as may be provided by law;
(g)Fail to maintain an adequate reserve fund for the replacement of facilities used
for Common Area maintenance.
Section 4. Rights of Holders. All Mortgagees on Parcels shall, upon written request to
the Association, be entitled to: ; ',: ;
. _ (a)Inspect the books and records of the Association during normal business hours;
(b)Receive an annual audited financial statement of the Association within ninety
(90) days following the end of any fiscal year of the Association provided, however, that such
audited statements shall be made available only if they have been prepared by the Association in
the regular course of business;
(c) Receive written notice of all meetings of the Owners of the Association and
shall be entitled to designate a representative to attend all such meetings.
Section 5. Payment of Taxes and Insurance Premiums. Mortgagees on Parcels within
the Project Area may, jointly or singly, pay taxes or other charges which are in default and which
may or have become a charge or lien against any Common Area, and may pay overdue
premiums on hazard insurance policies or secure hazard insurance, coverage upon the lapse of a
policy for any Common Area. Mortgagees making such payments shall be owed immediate
reimbursement therefor from the Association.
Section 6. Priority On Distribution of Proceeds. No Owner or any other party shall have
priority over any right of Mortgagees upon individual Parcels pursuant to their Mortgages in the
case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or a
taking of all or any portion of the Common Area and/or the Improvements thereon.
Section 7. Mortgage Protection Clause. No breach of the covenants, conditions or
restrictions herein contained, nor any lien created hereby, shall defeat or render invalid the lien
of any mortgage or deed of trust made in good faith and for value, but all of said covenants,
conditions and restrictions shall be binding upon and effective against any Owner whose title is
derived through foreclosure or trustee's sale, or otherwise.
9448
Section 8. Conflicts. In the event of any conflicts between any of the provisions of this
Article and any other provisions of the Declaration, the provisions of this Article shall control.
ARTICLE XIII
RIGHTS OF CITY
Section 1. General Enforcement by the City. The City shall have the right, but not the
obligation, to enforce the covenants set forth in this Declaration in favor of, or in which the City
has an interest.
Section 2. Notice and Amendment. A copy of any proposed amendment shall be
provided to the City in advance. If the proposed amendment directly affects any rights of the
City contained in this Declaration, City shall have the right to disapprove. A copy of the final
approved amendment shall be transmitted to City within 30 days for the official record.
Section 3. Failure of Association to Maintain Common Area and Landscape Easement
Area. In the event that the Association fails to maintain the Common Area or the Landscape
Easement Area as provided in Article IV, Section 2, the City shall have the right, but not the
duty, to perform the necessary maintenance. If the City elects to perform such maintenance, the
City shall give written notice to the Association, with a copy thereof to the Owners irbthe Project..
Area, setting forth with particularity the maintenance which the City finds to be required and
requesting the same be carried out by the Association within a period of thirty (30) days from the
giving of such notice. In the event that the Association fails to carry out such maintenance of the
Common Area or Landscape Easement Area within the period specified by the City's notice, the
City shall be entitled to cause such work to be completed and shall be entitled to reimbursement
with respect thereto from the Owners as provided herein.
Section 4. Special Assessments Levied by the City. In the event the City has performed
the necessary maintenance to either Common Area or Landscape Easement Area, the City shall
submit a written invoice to the Association for all costs incurred by the City to perform such
maintenance to the Common. Area or Landscape Easement Area. The City shall provide a copy
of such invoice to each Owner in the Project Area, together with a statement that if the
Association fails to pay such invoice in full within the time specified, the City will pursue
collection against the Owners in the Project Area pursuant to the provisions of this Section. Said
invoice shall be due and payable by the Association within twenty (20) days of receipt by the
Association. If the Association shall fail to pay such invoice in full within the period specified,
payment shall be deemed delinquent and shall be subject to a late charge in an amount equal to
six percent (6%) of the amount of the invoice. Thereafter, the City may pursue collection from
the Association by means of any remedies available at law or in equity. Without limiting the
generality of the foregoing, in addition to all other rights and remedies available to the City, the
City may levy a special assessment against the Owners of each Parcel in the Project Area for an
equal pro rata share of the invoice, plus the late charge. Such special assessment shall constitute
a charge on the land and shall be a continuing lien upon each Parcel against which the special
assessment is levied. Each Owner in the Project Area hereby vests the City with the right and
power to levy such special assessment, to impose a lien upon their respective Parcel, and to bring
all legal actions and/or pursue lien foreclosure procedures against any Owner and his/her
respective Lot for purposes of collecting such special assessment in accordance with the
procedures set forth in Article III of this Declaration.
70006423.3 24
9449
Section 5. Landscape Maintenance Responsibilities. The Association and Owners
landscape maintenance responsibilities shall be as set forth by the approved landscape plan on
file at the City Planning Department. Maintenance responsibility for the "mini-park" located
west of Melrose Drive which shall serve employees of the Carlsbad Raceway Business Park and
Palomar Concourse, shall be shared with the Carlsbad Raceway Business Park based on the
percentage of net useable acreage in each development.
Section 6. Compliance With Environmental Mitigation Measures. The development of
each lot within the Project Area shall comply with environmental mitigation measures set forth
in Planning Commission Resolution 5031 dated August 15, 2001, attached hereto as Exhibit E
and incorporated herein by reference.
Section 7. Open Space Maintenance Responsibilities. The Association open space
maintenance responsibilities for Parcel 11, shall consist of active maintenance to protect and
preserve the quality of the habitat (including but not limited to reasonable prevention of trespass)
as required by the United States Fish and Wildlife Service and the California Department of Fish
and Game until ownership is transferred to the City or its designee for perpetual maintenance.
Section 8. Open Space Maintenance Financial Responsibility/Obligation. Simultaneous
with the transfer of ownership of open space Parcel 11 to the City or its designee, the Association
shall provide funding or other acceptable financial mechanism to provide for management and
conservation in perpetuity. (The cost of management is currently estimated to be approximately
$85.00 per acre per year). .,.....'" '"'..-.. :~.-v
;.-.-
Section 9. Total Building Square Footage Monitoring Obligation. The total square
footage permitted within the Project Area is limited to 809,714 square feet of building area.
Prior to building permit submittal for any structure on any industrial lots within the Project Area
(Parcels 1-10), the Association shall review the plans and ensure that a tabulation of total square
feet to date is provided. The tabulation of total square feet shall be shown on the building plan
set; otherwise, building plans may be rejected by the City. The Association shall ensure that
every Parcel within the Project Area is guaranteed a share of the total building area.
Section 10. Easements to City. To the extent necessary, Declarant expressly reserves for
the benefit of the City, non-exclusive easements for access, ingress, and egress over the Property
for the purpose of periodic inspection of all NPDES facilities.
ARTICLE XIV
DURATION AND AMENDMENT
Section 1. Duration. This Declaration shall continue in full force for a term of fifty (50)
years from the date hereof, after which time the same shall automatically be extended for
successive periods of ten (10) years unless a Declaration of Termination is recorded, in the
public records of San Diego County, California, meeting the requirements of an amendment to
this Declaration as set forth in Section 2 of this Article. There shall be no severance by sale,
conveyance, encumbrance or hypothecation of an interest in any Parcel from the concomitant
Membership in the Association, as long as this Declaration shall continue in full force and effect.
9450
Section 2. Amendment. Notice of the subject matter of a proposed amendment to this
Declaration in reasonably detailed form shall be included in the notice of any meeting of the
Association at which a proposed amendment is to be considered. A resolution adopting a
proposed amendment may be proposed by an Owner at a meeting of Members of the
Association. The resolution shall be adopted by approval of Owners in the aggregate owning not
less than seventy-five percent (75%) of the voting power of the Association. Further, this
provision shall not be amended to allow amendments by the assent or vote of less than seventy-
five percent (75%) of the voting power of the Association. A copy of each amendment shall be
certified by at least two (2) officers of the Association and the amendment shall be effective
when the certificate of Amendment is recorded in the public records, San Diego County,
California. No amendment or modification which materially or substantially affects the
obligations or ability of the Association to maintain the Common Areas or the Landscape
Maintenance Area shall be effective unless the City of Carlsbad consents thereto and the
Planning Director of the City of Carlsbad certifies such approval in a document that shall be
appended to the amendment or modification and recorded therewith in the public records of San
Diego County, California
Section 3. Protection of Declarant. Notwithstanding any other provision in this
Declaration, the prior written approval of PFA, as developer of the Project Area, will be required
before an amendment shall become effective which would impair or diminish the rights of PFA
to complete the Project Area. This right of prior written approval shall terminate" as; to PFA at
such time as its property becomes the subject of a Foreclosure Transfer pursuant 4o7 a deed of
trust of a Consenting Lender. t-;; ;.
• • ' —.-;.-•:-• - ARTICLEXV ••::;-.; •;•:.• •• ..
GENERAL PROVISIONS
Section 1. Legal Proceedings. Failure to comply with any of the terms of this
Declaration and regulations adopted pursuant thereto, by an Owner, his guests, employees,
customers, invitees or tenants, after compliance with the administrative procedure and remedies
set forth herein and in the Bylaws of the Association, shall be grounds for relief which may
include, without limiting same, an action to recover sums due for damages, injunctive relief,
foreclosure of lien, or any combination thereof, which relief may be sought by Declarant, the
Board of Directors, or, if appropriate, by an aggrieved Owner. Failure to enforce any provisions
hereof shall not constitute a waiver of the right to enforce said provision, or any other provision
hereof. Any Owner (not at the time in default hereunder), or the Association shall be entitled to
bring an action for damages against any defaulting Owner, and in addition may enjoin any
violation of this Declaration. Any judgment rendered in any action, or proceeding pursuant
thereto shall include a sum for attorneys' fees in such amount as the Court may deem reasonable,
in favor of the prevailing party, as well as the amount of any delinquent payment, interest
thereon, costs of collection and court costs. Each remedy provided for in this Declaration shall
be cumulative and not exclusive or exhaustive. The County of Orange is specifically given a
right of enforcement of this Declaration by way of injunctive reliefer by way of any other relief
herein provided.
S_ection 2. Severability. The provisions hereof shall be deemed independent and
severable, and the invalidity or partial invalidity or enforceability of any one provision or portion
thereof shall not affect the validity or enforceability of any other provisions hereof.
70006423.3 26
9451
Section 3. Interpretation. The provisions of this Declaration shall be liberally construed
to effectuate their purpose of creating a uniform plan for the creation and operation of a
commercial planned unit development and for the maintenance of Common Areas, and any
violation of this Declaration shall be deemed to be a nuisance. The Article and Section headings,
title and captions have been inserted for convenience only, and shall not be considered or
referred to in resolving questions of interpretation or construction. As used herein, the singular
shall include the plural and the masculine, feminine and neuter shall mean the same.
Section 4. Construction and Sales by Declarant. Nothing in this Declaration shall limit,
and no Owner shall do anything which shall interfere with, the right of PFA to alter any of the
Improvements on the Property, the Common Areas, and the Parcels owned by PFA, or to
construct such additional Improvements as Declarant deems advisable prior to sale of the last
Parcel in the entire Project Area by PFA. This Declaration shall not limit the right of Declarant at
any time prior to acquisition of title by a purchaser from PFA to establish on the Project Area
additional easements, reservations and rights of way to itself, to utility companies, or to others as
may from time to time be reasonably necessary to the proper development and disposal of the
Project Area. Prospective purchasers and Declarant shall have the right to use all Common
Areas for access to the sale facilities of Declarant. Declarant may use any Parcel(s) owned by
Declarant as sales offices and Declarant shall be entitled to the exclusive use of the facilities on
the Common Areas without cost, in order to dispose of the Project Area as provided herein. PFA
reserves the right to alter its plans and designs as it deems appropriate prior to sale of the .last"
Parcel in the Project Area. • . ;
THIS DECLARATION has been executed on the date first written above.
r PALOMAR FORUM ASSOCIATES, a
California limited partnership
Larry E. N
77
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
) ss.
)
9453
On October ^1 . 2002 before me, \L lSlfl _ , Notary Public,
personally appeared Larry Nelson, personally known to ine (or proved to me on the basis of
satisfactory evidence) to be the person^ whose namej^j^re subscribed to the within
instrument and acknowledged to me thalMie^she/they executed the same in (his/her/their
authorized capacityftes)fand that b/his}her/their signature^ on the instrument the person^, or
the entity upon behalf of which the personjXf acted, executed the instrument.
Witness my hand and official seal.
Notary Public
K. TYSDAL
Comm. #1319361 3t
NOTARY PUBLIC -C-UFOBNW >
ORANGE CC--.NTY —
MyC«wm. Expires »-.- a JO. ?»5
9453
1 GOVERNMENT CODE 27361.7
B^- — ~ "_ -*•— - ' •-'
I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE
DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS:
Name of the Notary: pV "fw £ </*/
Commission Number: -*" ^3 / 3* -*- Date Commission Expires: ff/^0/ ^
County Where Bond is Filed: t/rQsj?4_ C~Hf., CT IT
Manufacturer or Vendor Number:
(Located on both sides of the notary sea! border)
Signature:,
Firm Name (if applicable)
Place of Execution:
9454
EXHIBIT A
REAL PROPERTY DESCRIPTION
9455
EXHIBIT "A"
All that portion of Sections 13 and 18, Township 12 South, Range 4 West, San Bernardino
Meridian and all that portion of Section 18, Township 12 South, Range 3 West, San
Bernardino Meridian, in the City of Carlsbad, County of San Diego, State of California,
according to Official Plat thereof, described as follows:
Beginning at the Northwest corner of Record of Survey No. 9112, being the True Point of
Beginning said Map on file in the Office of the County Recorder of San Diego County, said
State; thence along the Westerly line thereof South 2°36'40" East 384.39 feet to a point on
the Northerly sideline of Palomar Airport Road per Road Survey No. 757; thence South
2°38'00" East 28.51 feet to a point on the? centerline of said Palomar Airport Road and on
the arc of a 1200.00 foot radius curve concave Southerly, a radial line to said point bears
North 2°03'04" East; thence leaving said Westerly line, Easterly along the arc of said curve
through a central angle of 20°13'34" a distance of 423.62 feet; thence South 67°43'22"
East 1328.80 feet to the beginning of a tangent 1000.00 foot radius curve concave
Northerly; thence Easterly along the arc of said curve through a central angle of 3*09*32" a
distance of 55.13 feet to a point on the arc of a non-tangent 2263.00 foot radius curve
concave Northerly, a radial line to said point bears South 8°33'46" West; thence Easterly
along the arc of said curve through a central angle of 16°17'25" a distance of 643.41 feet
to a point on the arc of a non-tangent 1000.00 foot radius curve concave Northeasterly, a
radial line to said point bears South 18°16'59B East; thence Easterly along the arc of said
curve through a central angle of 3009'32" a distance of 55.13 feet; thence North 68e33'29"
East 1525.56 feet to the Beginning of a tangent 6000 foot radius curve concave Southerly;
thence Easterly along the arc of said curve through a central angle of 5°39'05'1 a distance
of 591.81 feet; thence North 74°12'34" East a distance of 454.40 feet to the Beginning of a
tangent 3000 foot radius curve concave Southerly; thence Easterly along the arc of said
curve through a central angle of 0°52"58" a distance of 46.22 feet; thence leaving said
curve and centerline North 0°39'50" East 76.25 feet to the Northeast comer of said Record
of Survey No. 9112; thence Westerly along the North 89°27'55" West 4435.96 feet;
thence North 88°37'38" West 432.70 feet to the Point of Beginning.
APN: 221-010-17 & 221-012-10
EXHIBIT B 9456
ANNEXATION AREA
ORDER NO. 1281320-2
9457
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL I:
THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 18, TOWNSHIP 12
SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
EXCEPTING THEREFROM ONE-HALF OF ALL MINERALS IN, ON OR UNDER SAID LAND AS
RESERVED BY BURTON D. HIGHTOWER, A WIDOWER, IN DEED RECORDED MAY 19, 1959 IN
BOOK 7669, PAGE 361 OF OFFICIAL RECORDS.
PARCEL 2:
THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 18, TOWNSHIP 12
SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD.
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
EXCEPTING THEREFROM ONE-HALF OF ALL MINERALS IN, ON OR UNDER SAID LAND AS
RESERVED BY BURTON D. HIGHTOWER, A WIDOWER, IN DEED RECORDED MAY 19, 1959 IN
BOOK 7669, PAGE 361 OF OFFICIAL RECORDS.
PARCEL 3A:
LOT 2, SECTION 13, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN
THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
OFFICIAL PLAT THEREOF.
PARCEL 3 B:
AN EASEMENT FOR PUBLIC ROAD AND UTILITY PURPOSES OVER, UNDER, ALONG AND
ACROSS THE FOLLOWING DESCRIBED REAL PROPERTY, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. PARTICULARLY DESCRIBED AS FOLLOWS:
PAGE
ORDER NO. 1281320-2
9458
THOSE PORTIONS OF LOT 3 IN SECTION 13, TOWNSHIP 12 SOUTH, RANGE 4 WEST AND OF
LOT 3 IN SECTION 18, TOWNSHIP 12 SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN,
IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO OFFICIAL PLAT THEREOF, LYING WITHIN A STRIP OF LAND 60 FEET WIDE, 30 FEET ON
EACH SIDE OF THE FOLLOWING DESCRIBED CENTER LINE:
BEGINNING AT ENGINEER'S STATION 67 + 45.06 ON THE CENTER LINE OF ROAD SURVEY NO.
757, A COPY OF WHICH IS ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY, BEING A POINT ON A CURVE CONCAVE EASTERLY, THE CENTER LINE OF
WHICH BEARS SOUTH 74°43'03" EAST 400 FEET; THENCE NORTHERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 28001-21" A DISTANCE OF 195.63 FEET TO THE BEGINNING
OF A REVERSE CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 400 FEET; THENCE
NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 43°22'39" SECONDS A
DISTANCE OF 302.83 FEET TO A POINT WHICH IS NORTH 89o59'33" EAST 63 FEET AND NORTH
00004-21" WEST, 0.39 FEET FROM THE WEST QUARTER CORNER OF SAID SECTION 18,
TOWNSHIP 12 SOUTH, RANGE 3 WEST.
PARCEL 4:
THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 18, TOWNSHIP 12
SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, M THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
EXCEPTING THEREFROM ONE-HALF OF ALL MINERALS IN, ON OR UNDER SAID LAND AS
RESERVED BY BURTON D. HIGHTOWER, A WIDOWER, IN DEED RECORDED MAY 19. 1959 IN
BOOK 7669, PAGE 361 OF OFFICIAL RECORDS.
NOVEMBER 21. 200i 9.23 AM DM
PAGE 12
EXHIBIT C
9459LANDSCAPE EASEMENT AREAS
RIGHT OF WAY LINE
BACK OF WALK
CURB
•EDGE OF TURF
PEDESTRIAN BRIDGE
PEDESTRIAN TRAIL
STREAM
PROPERTY LINE
WATER FEATURE
EDGE OF TURF
RIGHT OF ILJAY LINE
•BACK OF UJALK
CURB
NOTE:
ENTIRE PARK SHALL BE ASSOCIATION MAINTAINED
MELROSE DRIVE PARK
SCALE: 1" = 20'
9461
CURB
RIGHT OF UJAT LINE
BACK OF tUALK
-EDGE OF TURF
NOTE: ALL TURF MEANDERING OUTSIDE
THE ROJLU. SHALL BE ASSOCIATION MAINTAINED
LANDSCAPE SETBACK
MONUMENT SIGN
^ill-fe;'!•££** ^EDGE OF TURF
NOTE: ALL PLANTING ASSOCIATED UJITH MONUMENT
SIGN CORNER PLANTING SHALL BE ASSOCIATION
MAINTAINED.
- AREA OF ASSOCIATION MAINTENANCE RESPONSIBILITY
MELROSE DRIVE - PALOMAR AIRPORT ROAD
SCALE: 1" = 20'
9462
LANDSCAPE SETBACK
RIGHT OF WAY LINE
BACK OF UUALK
CURB
- AREA OF ASSOCIATION MAINTENANCE RESPONSIBILITY
PALOMAR AIRPORT ROAD - TYPICAL
SCALE: 1" a 20'
9463
EDGE OF TURF
NOTE: ALL TURF MEANDERING'OUTSIDE,
THE R.O1U. SHALL BE ASSOCIATION
MONUMENT SIGN
SETBACK LINE
RIGHT OF OIAT LINE
BACK OF WALK
CURB
PALOMAR AIRPORT ROAD
NOTE: ALL PLANTING ASSOCIATED UJITH MONUMENT
SIGN CORNER PLANTING SHALL BE ASSOCIATIONMAINTAINED.
- AREA OF ASSOCIATION MAINTENANCE RESPONSIBILITY
PALOMAR AIRPORT ROAD - EAGLE DRIVE
SCALE: 1" = 20'
DIRECTIONAL SIGN
RIGHT OF UJAY LINE
BACK OF WALK
CURB
EDGE OF TURF
RIGHT OF UJAY LINE
BACK OF UIALK
NOTE: ALL TURF MEANDERING OUTSIDE
THE ROM SHALL BE ASSOCIATION MAINTAINED CURB
EDGE OF TURF : s
NOTE: ALL TURF MEANDERING OUTSIDE
THE R.O.UU. SHALL BE ASSOCIATION MAINTAINED
\
9464
RIGHT OF UJAY LINE
BACK OF UJALK
CURB
NOTE: ALL PLANTING ASSOCIATED IUITH DIRECTIONAL
SIGN CORNER PLANTING SHALL BE ASSOCIATIONMAINTAINED.
- AREA OF ASSOCIATION MAINTENANCE RESPONSIBILITY
EAGLE DRIVE - GREYHAWK COURT
SCALE: 1" = 20'
9465
RIGHT OF UJAT LINE
BACK OF WALK
CURB
EDGE OF TURF
SETBACK LINE
CURB
BACK OF UUALK
RIGHT OF WAY LINE
DIRECTIONAL SIGN
•EDGE OF TURF
NOTE: ALL TURF MEANDERING OUTSIDE
THE ROM SHALL BE ASSOCIATION MAINTAINED
NOTE: ALL PLANTING ASSOCIATED WITH DIRECTIONAL
SIGN CORNER PLANTING SHALL BE ASSOCIATION
MAINTAINED.
RIGHT OF UlAr LINE
BACK OF UJALK
CURB
- AREA OF ASSOCIATION MAINTENANCE RESPONSIBILITY
EAGLE DRIVE - GREYHAWK COURT
SCALE: 1° = 20'
9466
LANDSCAPE SETBACK
/EDGE OF TURF
NOTE: ALL TURF MEANDERING OUTSIDE
THE ROW. SHALL BE ASSOCIATION MAINTAINED
CURB
BACK OF WALK
RIGHT OF UJAT LINE
RIGHT OF U/AY LINE
BACK OF UJALK
CURB
EDGE OF TURF
LANDSCAPE SETBACK-
- AREA OF ASSOCIATION MAINTENANCE RESPONSIBILITY
TIGER RUN COURT - TYPICAL
SCALE: 1" = 20'
9467
LANDSCAPE SETBACK
,EDGE OF TURF
NOTE: ALL TURF MEANDERING OUTSIDE
THE R.OUJ. SHALL BE ASSOCIATION MAINTAINED
f£'-'."'":'x\'i'fi~fci:'''.'-.•'•"'' ' -'. - • .-.I-.- -L-'^i^'-— .;:i-,-''-': ..i" jLJftJBgS-r -i^?£- %i-~^! Cr-'.lf »'-;^'-l?uJ"'t^-''^?'~L''a^^'-;*^iw-'*!^n(•¥.'.•..-•«.••' :| ;.».fe'fr-£jir.:=&i.---.--.-.:-.-. -I ••>•'.',"• i'«S--s-'-^r •)•:•••'•--'-- f'if '-r\f\? - ,. '•'*,* ,"-~^J>.~-.'•'"*"''-^•''•'a '•'',* ff £•!''.'• • is" •""!^^^^^i^^m^^^'^^^^1^^^' '^ **-+»*-•* ^-- '••'•'"•• ^ -•^-'•--
G«EYHAWK COURT
CURB
BACK OF WALK
RIGHT OF UJAY LINE
RIGHT OF UJAY LINE
BACK OF UJALK
CURS
EDGE OF TURF
LANDSCAPE SETBA<
- AREA OF ASSOCIATION MAINTENANCE RESPONSIBILITY
GREYHAWK COURT - TYPICAL
SCALE: 1" = 20'
9468
PROPERTY LINE
m^-^^^mim^mm?•$>::* ^v^f^s^f^f1.:^^**'^ij".-"•"*-' :"* *7*S*^^^5^V^i»'* ^-pM-'^'^Mj^"1^
Vv '•' **• '' i* L-'*' •^•«*H%t !'~**^^:j»^^f^^^^\T •• , • .F !*, •*r^: v,>*. - - ^.rf'-^i^^j*^^
RIGHT OF U/AY LINE
BACK OF IUALK
CURB
LXXNDSCAPE SETBACK
NOTE:
ENTIRE OPEN SPACE SMALL BE ASSOCIATION MAINTAINED
- AREA OF ASSOCIATION MAINTENANCE RESPONSIBILITY
OPEN SPACE - TYPICAL
SCALE: 1"= 100'
9469
EXHIBIT P
NET USEABLE BUILDING AREA
70006423.3
9470
Exhibit B
LOT NO.
1
2
3
4
5
6,
7
8
9
10
SALEABLE AREA
(AC)
7.4
4.4
7.6
5.1
13.5
2.1
3.8
6.7
0*
0*
TOTAL: 50.6
Open space for parks.
9471
EXHIBIT E
ENVIRONMENTAL MITIGATION MEASURES
70006423.3
9472
EXHIBIT E
ENVIRONMENTAL MITIGATION MEASURES
PROJECT NAME: Palomar Forum FILE NUMBERS: GPA 01 -07/ZC 01 -06/CT 99-061
HDP 99-03/PIPO1-03
APPROVAL DATE: July 15. 2001 CONDITIONAL NEG. DEC.:.
The following environmental mitigation measures were incorporated into the Conditions of Approval for this project in order to mitigate identified
environmental impacts to a level of insignificance. A completed and signed checklist for each mitigation measure indicates that this mitigation measure
has been complied with and implemented, and fulfills the City's monitoring requirements with respect to Assembly Bill 3180 (Public Resources Code
Section 21081.6).
Mitigation Measure
1. a. Prior to the recordation of a final map, the developer shall
design, dedicate, and bond for the following roadways:
• Palomar Airport Road will be widened from the City of Vista
boundary west to existing improvements west of Melrose Drive.
• Melrose Drive will be constructed from Palomar Airport Road
to the existing terminus in the City of Vista.
• Onsite, Street "A" Street will connect to the adjacent project to
the north Carlsbad Raceway Industrial Park, providing another
link and. secondary access to Melrose Drive and to Business
Park Drive.
• b. Prior to recordation of final map, Faraday Ave. shall be
financially guaranteed as a Secondary Arterial to be constructed
from the existing terminus in the City of Vista west of Melrose
Drive to the existing terminus in the City of Carlsbad at Orion
Way.
2. Potential impacts to water quality shall be mitigated through
compliance with the provisions of the "Carlsbad
Raceway/Palomar Forum Storm Water Pollution Prevention"
summary NPDES study prepared for the project by O'Day
Consultants dated June 6, 2001.
Monitoring
Type
Plancheck
Plancheck
Monitoring
Department
Engineering
Engineering
Shown on
Plans
Grading/
Improvement
Grading/
Improvement
Verified
Implementation;Remarks
•
Explanationof He»dlngi:
Type ** Project, ongoing, cumulative.
Monitoring Dept. «= Department, or Agency, responsible for monitoring a particular
mitigation measure.
Verified Implementation = When mitigation measure has been implemented,
this column will be initialed and dated.
Remarks = Area for describing status of ongoing mitigation measure, or for other
information.
Shown on Plans«When mitigation measure is shown on plans, this column will be RD - Appendix P.
Mitigation Measure
3. Biological mitigation to mitigate both upland and wetland
habitats, as described in Helix Environmental Planning, Inc.
mitigation proposals, shall consist of the following:
• Restore 1.7 acres of DCSS onsite within wildlife
corridor and develop a conceptual restoration plan prior
to final map.
• Acquire 1 .5 acres of DCSS or other habitat acceptable to
the City and wildlife agencies
• Create .08 acre of riparian habitat or freshwater marsh
vegetation within the Carlsbad Raceway HMP wildlife
corridor
• Prior to final map approval, prepare an engineering and
feasibility study for a potential wildlife crossing under
Palomar Airport Road;
• Payment of $133,867.80 to mitigate impacts to non-
native grassland and southern mixed chaparral
• If the HMP is approved prior to final map approval, the
feasibility study is not required and the mitigation funds
shall be used for acquisition of acreage in the designated
core area as described in the City's HMP
• If the HMP is not approved prior to final map approval,
the City in consultation with the wildlife agencies will
determine the most beneficial use of mitigation funds
including but not limited to: a) acquisition of acreage in
designated County Core area; b) construction of wildlife
crossing under Palomar Airport Road; and c) other
programs as determined by City to enhance habitat
preservation in the City.
Eiol»n»tlon of Headlnes:
Type <• Project, ongoing, cumulative.
Monitoring Dept. = Department, or Agency, responsible for monitoring a particular
IHIUKBllUll Ill&ttUIC.
Monitoring
Type
Plahcheck -
Receipt of
wildlife agency
permits
Ven
Ken
Monitoring
Department
Planning
led Implementation = \
this column will be in
Shown on
Plans
'hen mitigation measu
itialed and dated.
Verified :
Implementation.
: has been implemented.
. Remarks
information.
Shown on Plans *> When mitigation measure is shown on plans, this column will be RD - Appendix P.
Mitigation Measure Monitoring
Type
Monitoring
Department
Shown on
Plans
Verified
Implementation Remarks
• Conduct burrowing owl surveys prior to construction
and relocate if necessary.
• Obtain all necessary permits from U.S. Army Corp of
Engineers, U.S. Fish and Wildlife Service, and
California Department of Fish and Game prior to final
map approval.
• Submittal of wetland and coastal sage scrub restoration
program for approval by City and wildlife agencies
prior to construction activities
4. The tentative map will be conditioned to require that the
following mitigation measures will be incorporated into projects
prior to approval of the Planned Industrial Permit required for
each lot.
• Prohibit placement of mechanical equipment on roofs
unless project incorporates architectural treatment
consisting of architecture elements or parapets that are of
sufficient height and design to screen future mechanical
roof equipment.
• Prohibit installation of roof screens other than building
parapets or architecture elements that are integrated into the
architectural design of buildings;
• Prohibit loading bays that are visible from Palomar Airport
Road or Melrose Drive.
• Require enhanced architectural treatment of all building
elevations that are visible from Palomar Airport Road or
Melrose Drive.
Plancheck Planning Future PIP site
plans
Explanation of Hemdlngi;
Type «• Project, ongoing, cumulative.
Monitoring Dept. » Department, or Agency, responsible for monitoring a particular
mitigation measure.
Verified Implementation ** When mitigation measure has been implemented,
this column will be initialed and dated.
Remarks ** Area for describing status of ongoing mitigation measure, or for other
information.
Shown on Plans •• When mitigation measure is shown on plans, this column will be RD - Appendix P.
Mitigation Measure
5. Mitigation required to significantly reduce the risk of exposure
to hazardous substances:
• No project facilities located within 1,000 feet of any
residential unit shall store, handle, or use toxic, or highly
toxic gases as defined in the most currently adopted fire
code at quantities which exceed exempt amount as defined
in the most currently adopted fire code.
• Facilities which store, handle or use regulated substances as
defined in the California Health and Safety Code _25532(g)
in excess of threshold quantities shall prepare risk
management plans for determination of risks to the
community.
Monitoring
Type
Plan check
Monitoring
Department
Fire/Planning
Shown on
Plans
Future PIP
building plans
Verified
Implementation Remarks
_•
.
•
Eipl«n»tlon of Headings;
Type •» Project, ongoing, cumulative.
Monitoring Dept. ** Department, or Agency, responsible for monitoring a particular
mitigation measure.
information.
Shown on Plans •» When mitigation measure is shown on plans, this column will be
Verified Implementation •> When mitigation measure has been implemented,
this column will be initialed and dated.
Remarks = Area for describing status of ongoing mitigation measure, or for other
RD - Appendix P.
Mitigation Measure
• Facilities which store, handle, or use any quantity of a toxic
or highly toxic gas as defined in the most currently adopted
fire code which are also regulated substances as defined in
the California Health and Safety Code _25532(g) shall
prepare an offsite consequence analysis (OCA). The
analysis shall be performed in accordance with Title 19 of
the California Code of Regulations _2750.2 through
_2750.3. If the OCA shows the release could impact the
residential community, the facility will not store, handle or
use the material in those quantities. If a decrease in the
quantity of material reduces the distance to toxic endpoint
to where the community is not impacted, the facility shall
be able to utilize the material in that quantity.
Note: Computer models may be utilized as a tool to determine the
distance a hazardous material can travel if released to the atmosphere.
Parameters such as temperature, wind speed, atmospheric stability,
quantity released, material properties and type of release (e.g. a
pressurized release of gases) are considered by these models.
• Models can be overlayed onto maps which will show the
distance to toxic endpoint in the event of a release. Models
can be performed under "worst case" meteorological and
chemical release conditions. Under this situation, the
maximum harm potential is potential is determined for the
specifics of the material in question. The use of these
models is the most sophisticated method available to ensure
community safety.
6. Mitigation to ensure no risk to human health is that prior to
development of the property, the applicant shall solicit peer
review of these findings by San Diego County Department of
Environmental Health-Site Assessment and Mitigation Division
(DEH-SAM) Technical Review Board and incorporate any
recommendations into the project.
Monitoring
Type
.- .••--.• .•-• ..- -• -.- - •- • • •
Plan Check
•
Monitoring
Department
Planning
Shown on
Plans
-
Grading Plans
Verified
Implementation Remarks
EipUmllon of Headings;
Type ~ Project, ongoing, cumulative.
Monitoring Dcpt. = Department, or Agency, responsible for monitoring a particular
mitigation measure.
information.
Shown on Plans ™ When mitigation measure is shown on plans, this column will be
Verified Implementation = When mitigation measure has been implemented,
this column will be initialed and dated.
Remarks = Area for describing status of ongoing mitigation measure, or for other
RD - Appendix P.