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HomeMy WebLinkAboutGPA 18; LAND USE AMENDMENT NO. 7; General Plan Amendment (GPA)Recorded'at request of 'and when recorded mail to: STEI'}!ENS, JONJ:S, LA FEVER &' SMITH 800 Wilshire Boulevard Los Angeles l Cal,ifornia 90017 e SPECIFIC PLAN 1'+5 WXWJf1f~ iT 10 .1u '.aJiliV 11.1 D DECLARATION OF COVENANTS AND RESTRICTIONS. WHEREAS, CC&}? Palomar Properties, Inc., a California corporation, ("CC&F") is ·the owner of all that cer'cain real property loca'ted in the City of Carlsbad I County of San Die(),o, S'cate of California, more particularly described in Exhibit "11." I attached hereto and incorpora'ted herein by reference thereto (·the "Property"); and WHEHE1I.S, it is the desire and intention of CC&F to de- velop all of the Property as an industrial center; 'and WHERt'!!AS, it is the desire and intention of CC&F 'to im- pose upon the Property mutually beneficial restriction!:: under a general plan of improvement for the benefit of all of said Property I the improvements thereon and the future owners thereof. NON I '!'HEREJ?OnE, CC&F hereby declares that the Property is held and shall. be he1dl conveyed, hypothecated, encumbered, J AClC:~r1; rE'Tlt-:?r] i used, 0cc'L1;,?ied and il'~prcvcd, ct~bj cc t: to "~hc following limitations I restrictions and covenants, all of which are declared and agreed to be in fUrtherance of a plan for the subdivisjon, improvement and sale of the Property and all of \-,hich arc establishec1 and agreed upon for the purpose of enhanc'- ing and perfecting ,the value, desirability and attractiveness of the Property and every part thereof. All of the limi'cations, covcnan'cs and n"lstric,tions shall run vdth the Property and shall be binding on all parties having or acquiring any right, title or interest in the Proper'cy made suj)ject here'to or any part thereof, and shall inure to the benefit of and bind each mmer thereof and their respec'cive successors in interest, and are imposed upon said Proper'cy, and each ·and every portion thereof as a servitude in favor of said Proper-ty and each and every portion thereof as the domi- nant tenement l or tenements, all as follows, to wit: A. DEFINITIONS. 1. "Approving Agent" shall mean, in the follo\-,ing order of precedence: (a) CC&F, so long as it owns any interest in the Property; or,thereafter (b) , 1I.ny corporation, association or trust con'crolled by CC&F or l'li th which CC&l? has been merged or consolidated or by which CC&F has been acquirec1, all as certified of record by CC&F (hereinafter called CC&F's Successor) so long as it owns any L I' I I I , B. 2. 3. 4. • interest in the Property and provided it has been granted of record by CC&F the exclusive right to approve plans and grant variances as hereinafter set forth; or thereaf-ter (0) Any association (l"hether or not incorporated) organized by a majority of the owners of re- cord of the Propert:y or parts thereof for the purpose, among o'.:hers, of approving -plans and granting variances as hereinafter provided, in which membership is available to all such mvn- ers \-li thout chargG, provided CC&F or CC&F IS Successor has granted to it of record '.:he ex- clusive right to approve plans and grant vari- ances as hereinafter set forth \l1hic11 CC&F agrees will be done by it or CC&F's Successor before CC&F or CC&F's Successor ceases to own any in- terest in the Property if written request there- for is received prior to t.ha-t -time. "Site" shall menn an area of land in the same ovmership ei ther shm\"n as one lot on a rec.orded plan or I if not - so shO\vn, described as the Site for one or more build- ings by 1::he owner in a recorded instrument, whether or not in either case acquired at one time or previously so sho'l111 as rn::>re than one lot, or 5hO\'>'n or described for the purpose of lease but not of conveyance as more than one lot. If an easement or easemen-ts over any portion or portions of a Site established by recorded plan or recorded instrument then exist or exists or - is or are reserved by CCIi:.F for nny pur.P0l"P. Whi'l,/:!':(H"vt?r t the area of such portion or por'.:ions shall be included in compu'dng the. area of that Si-te. If subsequent to the establishment of a Site by recorded, plan or re- corded instrument, any portion or portions thereof are for railroad, st):eet, higYl\'lay I utility or public purpose taken-by right of eminent domain, or deed in lieu thereof, or dedica-ted or conveyed pursuant to reserva tion by CCE,F I the area of such por'.:ion or por- tions shall cont.inue to be included thereafter in computing the area of-that Site. "Declarat.ion" shall mean this Declaration of Covenants and Restrictions, as it may from '.:ime to time be amended or supplemented. "Restrictions" shall mean the covenants, conditions and restrictions set forth in the Declarat.ion. 5. "The City" shall mean the City of Carlsbad, County of- San Diego, State of California. RES':!?RICTIOi.'1S. 1. No building shall be constr,?-c'.:ed upon any Site: (a) Hi thin forty (11 0) feet measured at r:Lgh'.: angles from the nearest edge of the right-of-vlaY of any abutting s-trCGt in existence at the time of such const~uctioni -2- . t I i f I f J I j 1 I , -I I I I I I I I. r I 2. 4. ·.' 5. • (b) 1'1ith less than the minimum sideynrds requirec:· by la\"l, but even if permitted by. law,. \.,i th sideyards which. have an aggregate to·tal of less than blenty-five (25) feet. ';['his restr:i.c- tion is intended to parmit the minimum sideyards required by Im<l but no less than an aggregate of twenty-five (25) feet when both sideyards are added toget:.her i (c) Nith exterior \'Ialls cons·eructed other than of tilt-up concrete, masonry, or equal material; and the cons·truction of metal, prefabricated or butler-type buildings shall be prohibit~d; and (d) \tiith a roof having a difference in elevation of more than t,.,o (2) feet unless apJ?rov~d in the manner hereinafter provided. There shall be maintained on each Site only buildings, paved ,.,alks, paved parking lots, paved dri ve,<lays, la\Vl1 and landscaping I natural grovlth in ur,disturbed areas, the construction. and/or ins·tallat:ion .of which shall be subject to the approval of the Approving Agent in accordance with the provisions of this Declaration; provided, however, that at least ·t,vo-thirds (2/3) of the surface of the required set-back area from streets shall be maintained in lawns or other landscaping, and provided further tha·t natural grm.,th may remain on those portions of the Site side and rear yard ·areas which have not been disturbed by the construction of improve- ments on the Site. . There shall be maintained on each Site facilities for loading and unloading sufficient ·to serve the business conducted thereon without using adjacent; street therefor. Adequate off-street parking shall be provided to accom- modate all parking needs for employee, visitor and com- pany vehicles on the Site. The intent of this provi- sion is to eliminate the need ·for any on-stre·et park- ing. Parking shall not be permitted betv,een public street pavemen·t and a property line or closer than ten (10) feet to a street property line. No use shall be made of any Site which \.,ill at'cract parking in excess of tQQ_l?.arking spaces ·then available thereon. Not less than ~c: percent (3%) of the parking area of any Site 'shall contain landscaped islands. Each site shall be used only for manufacturing, pro- cessing, storage, wholesale, office, laboratory, pro- fessional and research and development activities; and there shall not be permitted any junk or salvage yard or any other use ,,;hich will be offensive to the neigh-' borhood by reason of odor, fumes, dustl smoke, noise, glare, heat, sound, vibration, electro-mechanical dis- turbances, electro-magn~·tic disturbances, radiation, air or \'later pollution or ,·,ill be hazardous by reason of danger of fire or explosio.ll. No use of the Site shall be permitted i'lhich iv-ill result in ·the dischurge of toxic ·matters into any sevI"Cr system serving the Site. Re·tail uses shall be lilaitcd to sales of goods and services reasonably required for e1e convenience .. -3- ,-' , 6. 7. 8. • of occupants v1it:hin, the Property such as restaurants, drug stores, barber and beau-l:y shops, shoe repair shops, cleaners, post offices, banks and automobile service stations; and no such retail uses shall be undertaY.en unless and until the same shall have been approved in the manner hereinafter provided. '1'11e exterior of all struc'tures and all ",alks, c1rive- 'Vlays, Im"ns and landscaping on each si-te shall be main- tained in goocl order, repair and condition; and all exterior painted surfaces shall be maintairied in first- class condition and shall be repainted at least once in every four (4) years. ' Unless specifically approvec:: in 'Vlri ting by t:he Approv- ing Z .. gent, no ma'cerials, supplies or equipment shall be stored in any area on a Site except inside a closed building or behind a solid visual barrier, construe'ted of material' acceptable to the Approving' Agent, \"hich screens such areas so that the stored items are not visible to a person six (6) feet tall standing-on any part_ of the neighboring proper-l:y or public -streets a'c an elevation no greater than the elevation of the base of the items being viCived. All roof-moun-t.ed mecl"-anical equipment, u,tility installations, duct, work, radar equip- ment, radio o,r television c,ntenna or any other devices which project vertically more than 1-1/2 feet above the roof or roof parapet shall be screened by a solid visual barrier '''hich is detailed consis-tent \',i th b'1.e building. No buildings or structures shall be erected, or exterior structural alterations or additions m~de on any Site except pursuant to plans and specifications approved 'in the manner hereinftfter. provided as to landscaping and archi tectural conformity to an industrial center. -The requirement of approval set foroth in 'chis paragraph is in addition to, and not in substitution for any and all other restrictions herein contained. 9. No ex-terior signs of any type which normally vrDuld be visible from the neighboring properties or public streets shall be placed or main-cained on any Site or building unless the same shall have been first approved in \"ri ting' by the Approving Agent. Said ?-pproval shall not be unreasonably withheld_provided that plans for , the, proposed sign or signs and the location of the same on the Site or building a:re SUbl~1i tted to the Approving Agent and provided thG'.t the design, type and location'conform to any sign standards as may be then generally es-tablished by the Approving Agent and in effect with respect 'co the Property. lO~ Street lighting standards constructed on any Site shall conform "ii th all applicable governmental requirements and shall be installed vlithin the appropriate dis·cances relating to driveways and/or curb cuts on such Sites. C. APPROVALS r Vl\R1ANCES .1I.ND ~'Jll.I\TBRS. 1. So long as there is an l\.pp;:-oving Agent it shall have the exclusive right t.o griln'c approvals required by the -4- ! . -, , l i f I t 1 ! I r ,i " 1_ .. ' D. 2. 3. 4. 5. • Restrictions and to "laive OJ: vary the Restrictions in particular respect.s whenever in its opinion such \'laiver or variance vrill not be detrimental to the intent and purpose of this Declaration. After t:here ceases to be an Approving Agent the owners of record of the land in the Propert.y abutting upon ec;,ch Site shall have the Gxclusive right to grr-tnt ap- provals required by the Res trictions and the O\·mers .of record of two-Jchirds (2/3) in area of land in the PJ:operty within fivG hundred (500) feet of each Site (said area to be defined by a line parallel to the bound2"ries of each Site and located five hundred (500) feet the:cefrom) shall have Jche exclusive right to \vaive or vary the Restrictions in particular re- spects ,,,henever in their opinion such wai ve:r.." or vari- ance will not: be detrimental to the intent and purpose of this Declaration. &"ly person having an interest in any Site may rely upon any instrumcu·t of record signed by the Approving upon any instrument of record sig"ned by the Approving Agent or afJcer there ceases to' be an A.pproving Agent. by the .appropriate owners referred to above purporting to grant an approval or to waive or vary Ble Restric- tions in particular respects. Any construct.ion, oJcher Jchan exterior signs, drive\vays, parking .are.,s, grading, landscaping, fences and screens, completed for tnore than three (3) months shall be deemed approved, unless prior to the expiraJcion of such period a sui'c for enforcement hilS bGen COwrnenced and notice thereof duly recorded. No owner of any Site shall be responsible except for violet tions occurring '''hile owner. Notwithstanding anyb.'1ing to the contrCtry cont.ained in this Paragraph C, no waiver or variance of the Rcst:r:ic- tions shall be effective ,,,itllout the prior written con- sent of The City . ENFORCJ::.MENT. 1. All of 'che provisions herein contained shall run \'li th the land and shall be enforceable at law and in equity. 2. So long as Blere is an Approving Agent it shall have the exclusive right to enforce the provisions hereof, without liability for failure so to do, except: that 3. The City and/or each o·,,'l1.er of record of land in tlle Propert.y shall have the rig!lt to enforce the provi- sions hereof them applicable t:o any Si·te if the Approv- ing Agent shall fail so to do ;'liJchin thirty (30) days after \vrit·ten request from any such owner or The City. After there ceases Jco be an Approving Agent I The City or each mvne:c of record of 'land in the Property shall have the rig"h·t to enforce the Hestric'l:ions then appli- cable to any Site WiUlOut liability for failure so to do. -5- :'-1 '" .' ;: ~I I :f;1 , ' . I 1" J i ! I I It i !I • 4. (a) In addition to the rig·h-t to proceed in equi-l:y for the enforcemen'c of the Rest.rictions, -in the even'c that the Restrictions are violated or breached, the Approving Ii-gent may, i'lithout li.ability for failure. so to do, enter upon the Site of said violation or breach and take \vhatevel." action it may deem necessary to aba/ce' and remove noncol1- fm:ming uses or to othen7ise effect compliance with the Rcstrictions t at the expense of the owner of said Site, provided that the Approving Agent shall have given to the owner of said Site at least sixty (60) days r \-lrit'cen notice of its intention to do so and-said o\'iner of said Site shall hive failed to correct said violation or breach; and in such case said o\\Tner of said Site shall be l:esponsible to reimburse tIl", Approving Agent fortt'1'vi til upon demand for all cost_s and ex-.:>enses incurred in connec-tion there\-li th ("Noncompliance Expenses ") in accordance \'lith the provisions of subparagraph D.4. (b) hereinbelmv. (b) In order to provide for the implGmentation of the provisions of subparagTaph D.4. (a) above, each owner of any Site within the Property by acceptance of a deed or other conveyance therefor, whether or not it shall be so expressed in any such. deed or other conveyance, is and shall be deemed to covenan-c and agree to pay to the Approving Agent an assess- ment for any Noncompliance Expl?nses incurred by the Approving Agent in connection with such O\mer' s site. (1) The Approving Agel).Jc shall maintain accurate books and records reflecting any Noncompliance Expenses, and shall provide each o\mer 6f an affected Site a statement with respect t~ereto. Each affected O\vner shall pay any Noncompliance Expenses applicable 'co such m-mer r S Site \d thin 10 days following the receipt of such statement. If such stateltlent is deposi·l::ed in the United States mail in the'Sta'ce of California, duly certified or registered \'lith postage prepaid and _addressed to the m-mer affected thereby at his Site, the same shall be deemed received by such ONner 72 hours after such deposit. (2) Any Noncompliance Expenses assessments t together with such interest thereon and costs of collection thereof as provided hereinbelolV, shall be a charge on the land and sha.11 be_ a continuing lien upon the Site agains'c \'lhich such assessments are made. The lien shall become effective upon recorda'c:i..on of a notice of cl<-tim of lien as provided herein. 'rhis assessmentt together "lith such interest and cos-ts, shall also be the personal obligation of the person or Emti t:y vlho is the O\'lner of such Site at the tine vthen the assessment, or any portion thereof, fell due and shall bind h.is heirs t devisees t personal represen-l:ativcs t successors and assigns. Hmv0ver, the pel=sonal obligation shall not pass to his successors in title unless .. -6- -, t t J. : I" r ! .. ' expressly assumed by t..hem. No mmer ffiD.y waive or othenlise escape personal liability for the assessment provided herei"n by nonuse or abandon- ment of his site. (3) If any Noncompliance Expenses asseSGll1ent or any por-cion -chereof is not paid within 10 days after the due date it shull bear interest from ·the date of delinquency at the 'chen legal rate, and, in addi'cion to all o'che:c legal and equitable rights or remedi.es; the .i\pproving Agent 'may, at: its . option; bring an acti.on at 1m" against. the ot"ner ;'lho is personally obligated to pay the same, or I upon compliance ,,,i th the notice provisions set forth hereinbelm" I to foreclose the lien against the Si'ce, and there shall be added to the amount of such a:ssessment or any portion thereof, the in terest thereon, all cos t8 and e::penses,' 'in'-. eluding reasonable at'corney I s fees, incurred by the .i\pproving Agent in collec'cing th~ delinquent assessment. In lieu of judicially foreclos- ing the lien, the Approving Agent:; at i.ts option, may foreclose such lien by proceeding under a pO\\'E:r of sale as provided herei,nbe.low, such a power of sale being given to the Approv- ing Agent as to each and every Site for the purpose .of collec·ting asscssmeni.:s. Each owner . .vests in the Approving .i\gent, its successors or assigns; the righ'c and power to bring all actions of' law or lien foreclosure against such owner or other o\-lners for purposes of collecting d~l 1.n- quent assessments. (4) No action Shilll be brought to foreclose tl.,e lien; or -C.o proceed under the power of sale, less than thirty (30) days after the date that a notice of claim of lien, execu'ced by the Approving l'gent, is recorded vii th the San Diego Count.y Recol~der, said notice stating the amount claimed (which may include interest and cost of collec'cion, including reasonable a ttorney I s fees), a good and sufficient. legal description of the Site being assessed, the name of the record owner or reputed owner thereof, and the name und address of the App)~oving Agent as clair:tant. A copy of said notice of claim shall be depositEd in the United States mail, certified or registered, 'and postage prepaid, to the owner of the Site. (5) Any such sale provided for above shall be .con- ducted in accordance \·,i·th Sections 2924, 2924 (b) , and 2924 (c) of t.he Civi.l Code of the S·tate of California, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any o·ther manner peY:rr,i tted OF . provided by law .. The Approving Agent: shull have the po;'ler ·to bid on the Site at the foreclosure sale, and to acquire and hold, mortgage and convey the same. -7- I I: I. I I~ I , •• 1 .... • (6) Upon the timely curir~g of any default for \vhich a notice of clair., of lien ,·ms recorded by thE:: Approving Agen·t, U1e Approving Agent is hero0Y au·chorized to fila or reco):(l, u.s t.h0. case may be, an appropriC):te release of such no tice, upon payment by the defnulting owner of a fee to be determined by the Approving l-lgent, but not. to exceed TI'Jenty-E'ive. Dollars ($25.00), to cover the costs of preparing and fil:f-ng or l~ecordin9' such release together vl'ith the payment of such other costs, interest or fees as shall have been incurred. (7) The assessment lien and the rights to fore- closure and sale thereunder :=:hall be ·in audi- tion to and not in substitution for all other rights and remedies which the Approving Agent and its successors and assigns may have here- under and by law. (8) The lien of the Noncompliance Expenses assess- ments provided for herein shall be subordina·tc to the lien of any deed of trust or mortgage now or hereaf·ter placed upon any of the Sites within the Property subject to such assessmentHi provided, however, tha·i.: such subordination shall apply only to the assessments which have become due and payable prior to a sale or transfer of such Site pursuant to a decree of foreclosure, or any other proceeding in lieu of forcclos\lre. Sub1; salt'! or. txal1sfer sho.ll not reliev0 !::uch . Site from liability for any assessments there- after becoming due, nor from the lien of any such. subsequent assessment:. (c) The Approving l'.gent shall have t.he right to prose- cute a p;coceec1ing at la·:1 or in equity against: any person or persons who have violated or are attempt':" ing to violate any of the Restri.ctions, to enjoin or prevent them from doing so, to cause said vio- lation to be remedied and/or to recover damages for said violati·on .. (d) The result of every action or. omission whereby the Restrictions are violated in whole or in part is hereby declared to be and to constitute a nuisance, and every remedy allowed by law or equity in nuis- ance shall ·be· availablG to the Approving Agent .• (e) In legal or equi·table proceedings to enforce or to res·train a viola'cion of the Restrictions or any provisions hereof, the losing party or parties shall pay the attorneys' fees of thG prevailing party or par'cies in such amOtlnt as may be fixed by the court. in such proceedings. (f) All rGmedies provided herGin or at law or in equity shall be cU~1ulative and not exclusive. (g) Failure by the Approving l'.,.gGnt to enforce the Re- strictions or any provision herein contained shall in no event be deemed a ';I'aiver of the righ'c 'co do so the:t:eaf·ter. -8- t . I i r I ., ~ t i 1 I \ ] I .J 1 r I~ ! ; I I .' • • (h) 'rhe Restrictions are enforceable to the exteHt not prohibited by appliculJle statute, ordinance, regula tion or other la.". Invalidati.on of anyone of the Restrictions or any provision herein con- tained by judgment or Court order'sha1l'not affect any other Res'criction OJ: other provIsions, each of w~1ich shall remain in full force and effect. 5. The Restrictions shall continue to remain in full force and effect a t all times ,vi th respect to all the Prop- erty and each part tll.ereof, no\" and hereafter made sub- ject thereto (subject, hm-lever to the right to amend and repeal as provi.ded for herein) for a te:r:m of thirty (30) years from the date this Declaration is recorded. HO"!ever, unless within one (1) year prior to ·the expi-· ration of said thirty (30) yenr 'cerm there shall be recorded aX} i.nstru;:;-.enc. conforming to the 'provisions of paragraph 6 hereinbelo\" directing the termination of the Rcstric'cions f the Restrictions as in effect im- mediately prior to the expira·tion da'l:e of said thirty (30) year term shall be con·tinued automatically with- out any further notice for an additional period of fivG (5) ye&.rs and thereafter for successive terms of five (5) years unless \vithin one (1) year prior to the expiration of any such five (5) year period the Restrictions are terminated as set forth belo\, in paragraph 6. 6. This Declaration, the Res'crictions or any provision contained herein may be terminatGd, extended, modi- fied or 'amended <::.s to the "TholG Prope:r.ty or any PO)-- tion thereof ';vi th the "H.-i tten consent of the owners of seventy-five percent (75%) of: the Property based on the number of square fe~·t of the Property o,,,ned as compared to the total mu: .. ,ber of square feet of the Property subj ect to the Restrictions r ,'1'i th each o\"ner receiving one vote for eacl'l. square foo·t of Property O\\'ned i provided, hO"lever, tha t so long as the Approving l\.g~'n·c. Oims at least twenty-five percent (25%) of the Property subject to the Restrictions or for a period of fii·teen (15) years from the effecti'tl'C? da te hereof, \'I'hicllever period is longer, no such ter- mination, extension, modification or amendment shall be effective without the vlritten consent of '.:he Ap'- proving Agent thereto i provided, hovleyer r that no such . termination, extension, modification or amendment shall be effectivG \i'ithout the "irH:'cen consen'c of The City thereto. No such termination, extension, modification or amendment shall be effective unt.il a proper instru- ment in \i'riting has been executed and acknm-r1edged and recorded in the County of San Diego. EXECtJ'ltED this ___ day of i973. CC&F P1I.LOif.LAR PROPER'rIES, INC. THE CITY OF CARJ~SBAD By_ By ______________________ __ Its Its ___________ _ By____ By _____________________ __ Its I·ts __ ~-....:;.-------- -9-- ~ TI ~I ; , , I f ' , ~ I , r i ! i I I I ! f ! • • • STATE OF CAJ"IFORNIA SSe COUNTY OF SAN DIEGO On ____________ before me, the undersigned, a Notary Public in and for. said State, personally appeared known t.o me to be the --------------------------------- ______________ President, and known to me to be Secretary of the corporation that e>:Gcuted t:he ,.,ithin Instrument, knovln to me to be the persons who execu'l:ed the wi thin instrument on behalf of the corporation t.herein named, and aCknO'i'lleaged to me that such corporation executed the ,.,ithin ins'crumen'l: pursuant to its by-laws or a resolution of its board of directors • . WITNESS my himd and official seal,. Sig'nature Name ('l'yped or Printed) " -10- I I 't I I: I l. I· I ~'