HomeMy WebLinkAboutCT 03-12; Promontory Business Park Lot 21; Tentative Map (CT)RECORDED AT THE REQUEST OF
CHICAGO TITLE COMFftNY
SUBDIVISION DEPT.
RECORDING REQUESTED BY
Chicago Title Company
AND WHEN RECORDED MAIL TO:
PiPer Rudnick LLP
550 South Hope Street, Suite 2300
Los Angeles, CA 90071
Attention: Richard C. Mendelson, Esq.
DOC# 2004-0681956
JUL21.2004 4:14 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH, COUNTY RECORDER
FEES: 227.00
PAGES: 74
2004-0681956
24K
(Space Above For Recorder's Use)
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
AND GRANT OF EASEMENTS
FOR PROMONTORY BUSINESS PARK
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Table of Contents
Page
ARTICLE 1 DEFINITIONS 2
ARTICLE 2 ASSOCIATION; MEMBERSHIP AND VOTING RIGHTS IN
ASSOCIATION 9
2.1 Organization of Association 9
2.2 Duties and Powers 9
2.3 Membership . 9
2.4 Transfer 10
2.5 Voting Rights 10
2.6 Vote Distribution 10
2.7 Powers 11
2.8 Initial Board of Directors 12
2.9 Subsequent Board of Directors 12
2.10 Personal Liability r . 12
2.11 Annual Membership Meetings 12
2.12 Pre-Association Powers of Declarant 12
ARTICLE 3 COVENANT FOR PAYMENT OF ASSESSMENTS ..13
3.1 Creation of Lien and Personal Obligation for Assessments 13
3.2 Purpose of Assessments 13
3.3 Budgets 13
3.4 Rentable Area .....13
3.5 Lots Subject to Assessment; Allocation of Assessments , 14
3.6 Regular Assessments 14
3.7 Special Assessments 15
3.8 Reimbursement Assessment 16
3.9 No Assessment for Real Property Taxes 16
3.10 Rate of Assessment 16
3.11 Effect of Non-Payment of Assessments; Remedies of the Operator 16
3.12 Right of Owners to Audit Books and Records of Association 18
3.13 Subordination of the Lien to Mortgages 18
3.14 Estoppel Certificate 18
3.15 Personal Liability of Owner 18
3.16 No Offsets 19
3.17 Transfer of Property 19
ARTICLE 4 ARCHITECTURAL AND DEVELOPMENT REVIEW COMMITTEE 19
4.1 General Control over Property 19
4.2 Assignment of Declarant's Rights 19
4.3 Members of Committee 19
4.4 Removal 20
4.5 Terms of Office 20
4.6 Resignations; Vacancies 20
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Table of Contents
(continued)
4.7 Duties and Appeals .' 20
4.8 Meetings 20
4.9 Design Guidelines..... 20
4.10 Variances 21
ARTICLE 5 DUTIES AND POWERS OF OPERATOR 21
5.1 Operator 21
5.2 Powers of Operator 22
ARTICLE 6 PERMITTED USES 23
6.1 Permitted Uses 23
6.2 Prohibited Uses Generally 23
6.3 Nuisances 25
. 6.4 Necessary Permits 25
6.5 Other Operations and Uses 25
6.6 Laws 25
6.7 Access 26
ARTICLE 7 REGULATION OF IMPROVEMENTS 26
7.1 Approval of Application Required .....26
7.2 Filing Fee 27
7.3 Basis for Disapproval 27
7.4 Result of Inaction 28
7.5 Proceeding With Work 28
7.6 Completion of Work 29
7.7 Inspection of Work 29
7.8 Estoppel Certificate 29
7.9 Indemnity and Limitation of Liability 29
7.10 Improvement Standards and Limitations 30
7.11 Certain Improvements Exempt from Application 30
7.12 Disclosure and Waiver of Conflict of Interest 30
ARTICLE 8 OPERATIONS GENERALLY 31
8.1 Slope and Drainage Use 31
8.2 Shared Parking; Parking Areas 31
8.3 Storage and Loading Areas 32
8.4 Inspection 33
8.5 Division of Land 33
8.6 Hazardous Materials 33
8.7 Payment of Taxes, Liens 33
8.8 Maintenance of Lots 34
8.9 Outside Installations 34
8.10 Prohibition of Outdoor Storage and Displays 34
8.11 Leases 34
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Table of Contents
(continued)
8.12 Reassessment for Construction... 35
ARTICLE 9 COMMON AREA 35
9.1 Use 35
9.2 Modification of Common Areas 36
9.3 Parking Regulations 36
9.4 Construction and Repair 37
9.5 Lighting the Common Areas 37
9.6 Signs 38
9.7 Pylon Sign 38
9.8 Water Usage 39
ARTICLE 10 EMINENT DOMAIN 39
ARTICLE 11 MUTUAL RELEASE 40
ARTICLE 12 EASEMENTS 40
12.1 Grants of Easements over Common Areas 40
12.2 Utility Easements 1 41
12.3 Construction and Repair , 41
12.4 Obstructions Within Common Areas 42
12.5 Right of Entry by Declarant, Association, Operator 42
12.6 Entry by Owners 42
12.7 Easements by Owner 43
12.8 Easements Reserved and Granted 43
12.9 Reservation by Declarant 43
ARTICLE 13 OWNER MAINTENANCE 43
13.1 Owners' Maintenance Obligations 43
13.2 Closure 44
13.3 Repair or Replacement of Damaged Building 44
ARTICLE 14 COMMON AREA MAINTENANCE...., : 44
14.1 Operator Maintenance 44
14.2 Common Areas Insurance 46
14.3 Operator's Right to Repair Neglected Lots 47
14.4 Property Management Company 47
14.5 Conveyance of Common Area Lot to Association 47
14.6 Assessment District; Dedication of Common Areas 47
14.7 Destruction, Restoration 47
in
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(continued)
ARTICLE 15 APPROVAL OF OWNERS AND NOTICES 48
ARTICLE 16 AMENDMENTS 48
ARTICLE 17 NOT A PUBLIC DEDICATION 49
ARTICLE 18 INJUNCHWE RELIEF '. 49
ARTICLE 19 BREACH SHALL NOT PERMIT TERMINATION 49
ARTICLE 20 INDEMNITY/INSURANCE BY OWNERS 50
20.1 Indemnity 50
20.2 Insurance 50
ARTICLE 21 SEVERABILITY .'..: 50
ARTICLE 22 ENFORCEMENT AND REMEDIES 51
22.1 Right to Enforce 51
22.2 Owner's Remedies 51
22.3 Waiver 51
ARTICLE 23 LITIGATION EXPENSES 51
ARTICLE 24 NO ASSIGNMENT OR TRANSFER 52
ARTICLE 25 SALE BY OWNER '. 52
25.1 Notice 52
25.2 Constructive Notice and Acceptance 52
25.3 Release of Owner 52
25.4 Liability of Transferee 53
ARTICLE 26 TERM OF DECLARATION 53
ARTICLE 27 MISCELLANEOUS 53
27.1 Assignment 53
27.2 Constructive Notice and Acceptance 53
27.3 Estoppel Certificate 53
27.4 Captions..... 54
27.5 , Gender 54
27.6 Declarant's Reserved Rights 54
27.7 Exhibits 54
27.8 Governing Law 54
27.9 Mortgage Protection 54
27.10 Mutuality, Reciprocity; Runs With Land 55
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Table of Contents
(continued)
27.11 Carlsbad Oaks Business Center 55
ARTICLE 28 RIGHTS OF CITY : 55
28.1 General Enforcement by the City 55
28.2 Failure of Association to Maintain Common Area and Easements 55
28.3 Special Assessments Levied by the City 55
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DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
AND GRANT OF EASEMENTS FOR
PROMONTORY BUSINESS PARK
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
GRANT OF EASEMENTS FOR PROMONTORY BUSINESS PARK is made as of July 15,
2004, by PACIFIC STARR-ESSEX CARLSBAD, LLC, a California limited liability company
("Declarant"), with reference to the following:
RECITALS:
A. Declarant is ,the owner of certain real property located in the City of Carlsbad,
County of San Diego, State of California, commonly known as "Promontory Business Park"
consisting of Lots 1 through 7, inclusive, of Parcel Map No. 19517 ("Final Map") filed in the
City of Carlsbad, County of San Diego, as more particularly described on Exhibit "A" attached
hereto (herein, the "Property").
B. Declarant intends to develop and operate the Property as a commercial common
interest development described in §135 l(k) of the California Civil Code as a "Planned
Development" and to sell, lease or otherwise convey portions of the Property to various
individuals or entities for purposes compatible with such development and operation. The
Property, together with all Improvements (as hereinafter defined) now or hereafter constructed
upon the Property, is also sometimes referred to herein as the "Project". The Final Map for the
Project showing all lots comprising the Property is attached hereto as Exhibit "B". The site plan
("Site Plan") showing the Project as presently improved is attached hereto as Exhibit "C".
C. By this Declaration, Declarant intends to impose upon the Property mutually
beneficial restrictions, in accordance with a general plan of improvement, in order to establish
and provide a means of maintaining a high quality environment for the benefit of Declarant and
all future owners of the Property and any and all portions thereof.
D. The Property is presently comprised of seven (7) legal lots as of the date of this
Declaration, which in this Declaration will be designated and referred to as Lots 1 through 7,
inclusive, as denoted on the Final Map. Each of Lots I through 7 and any further subdivision of
such lots into additional lots or parcels are referred to individually as a "Lot" and any two or
more Lots may be referred to herein collectively as "Lots". Declarant intends that the provisions
of this Declaration be restrictive covenants binding and inuring to the benefit of the Lots, the
Declarant and the respective successor Owners (as hereinafter defined) of the Lots during their
respective periods of ownership.
NOW, THEREFORE, Declarant hereby declares that the Property and each portion
thereof is and shall be held, owned, conveyed, sold, mortgaged, encumbered, leased, developed,
improved, used and occupied subject to this Declaration and the limitations, covenants,
conditions, restrictions, easements, liens and charges set forth herein, all of which are equitable
servitudes and shall run with the title to the Property and shall be binding on and inure to the
benefit of all parties having or acquiring any right, title or interest in the Property or any portion
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thereof, and their respective heirs, successors and assigns. The purpose of this Declaration is to
enhance and protect, and provide a means of controlling and maintaining, the value, desirability
and attractiveness of the Property and every portion thereof, for the benefit of Declarant and
every owner, in accordance with a general plan of subdivision, development and improvement.
ARTICLE 1
DEFINITIONS
In addition to any other terms defined in this Declaration, the following definitions shall
apply unless otherwise indicated:
"Act" - California Civil Code Section 1350 et seq.
/
"Affiliate" - Any Person which owns, is owned by, is controlled by, controls, or is under
common control with, another Person.
"Allocable Share" - shall mean, with respect to Common Expenses, the percentage of
Common Expenses allocable to a Lot or Buildings located upon a Lot as set forth in Exhibit "D"
attached hereto. Allocable Share shall be subject to change based upon any change Rentable
Area of any Building, as determined by the Operator in its reasonable discretion. , \
"Allocated Parking Spaces" - shall mean, with respect to each Lot or Building located
upon a Lot, the total number of parking spaces within the Common Parking Areas allocated to
such Lot or Buildings (inclusive of all non-exclusive and reserved, if any, parking spaces) as ,
shown on Exhibit "D" attached hereto; provided that such the number of such Allocated Parking
Spaces for each Lot shall be subject to adjustment by the Operator, from time to time, as set forth
in and pursuant to Sections 3.10 and 8.2 below.
"Applicant" — shall have the meaning provided to such term in Section 7.9 below.
"Application" - shall have the meaning provided to such term in Section 7.1 below.
"Articles" - The Articles of Incorporation of the Association which are or shall be filed
in the office of the California Secretary of State, as amended and supplemented from time to
time.
"Assessment, Capital Improvement" - "Capital Improvement Assessment" shall
mean a charge against each Owner and such Owner's Lot, representing a portion of the costs to
the Operator for installation or construction of any Improvements on any portion of the Common
Area which the Association may from time to time authorize, pursuant to the provisions of this
Declaration. Such charge shall be levied among all Owners and their Lots in the same
proportion as Regular Assessments, unless otherwise determined by the Operator as provided in
Section 3.7 below.
"Assessment, Reconstruction" - "Reconstruction Assessment" shall mean a charge
against each Owner and such Owner's Lot representing a portion of the cost to the Association
for reconstruction of any portion of the Improvements on the Common Area pursuant to the
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provisions of this Declaration. Such charge shall be levied among all Owners and their Lots in
the same proportion as Regular Assessments, unless otherwise determined by the Operator as
provided in Section 3.7 below.
"Assessment, Reimbursement" - "Reimbursement Assessment" shall mean a charge
against a particular Owner and such Owner's Lot directly attributable to, or reimbursable by, that
Owner equal to the cost incurred by the Association for corrective action performed pursuant to
the provisions of this Declaration, or a reasonable fine or penalty assessed by the Operator, plus
interest and other charges on such Special Assessments as provided for herein. Reimbursement
Assessments shall also include charges levied by the Operator against an Owner and such
Owner's Lot for excessive use of any utility which is commonly metered within the Property.
"Assessment, Regular" - "Regular Assessment" shall mean the monthly or
supplemental charge against each Owner and such Owner's Lot representing a portion of the
Common Expenses which are to be paid by each Owner to the Operator in the manner and
proportions provided herein.
"Assessments, Special" - "Special Assessments" shall mean Capital Improvement
Assessments and Reconstruction Assessments and any other assessment imposed by the
Operator against any Owner(s) which are not Regular Assessments or Reimbursement
Assessments.
"Association" - The Promontory Business Park Owners Association, a California
Nonprofit Mutual Benefit Corporation.
"Board" - The Board of Directors of the Association, as the same may be constituted
from time to time.
"BOMA Standards" - shall have the meaning provided to such term in Section 3.4
below.
"Budget" - shall have the meaning provided to such term in Section 3.3 below.
"Building" - Any structure now or hereafter constructed on any Lot which is intended
for human occupancy. Storage facilities and similar structures shall not be deemed to be
"Buildings" for purposes of this Declaration.
"Building Appurtenances" - Truck docks, tunnels, ramps and wells, trash storage areas
and equipment and other architectural features servicing exclusively one (1) Building, landscape
and hardscape areas immediately appurtenant to a Building within a Building Area and supports
and appurtenances that extend from a Building as permitted by this Declaration, such as Building
canopies, support columns, pilasters, overhangs and footings, provided that such Improvements
are located within a Building Area immediately adjacent to a Building or other Building
Appurtenance.
"Building Area" - The areas depicted as such on the Site Plan within which all
Buildings and Building Appurtenances are located.
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"Bylaws" - The Bylaws of the Association, as amended and supplemented from time to
time.
"City" - The City of Carlsbad, California, a municipal corporation.
"Committee" - The Architectural and Development Review Committee created pursuant
to Article 4 below.
"Common Areas" - Those portions of the Project intended for the common use of
Owners, Occupants and Permittees, and comprised of Lot 1, and the portion of each other Lot
located outside of the Building Area on each such Lot, including, without limitation, the
employee eating area for the Project.
"Common Area Improvements" - All Improvements from time to time located upon or
within the Common Areas.
"Common Expenses" - The actual and estimated costs and expenses of maintaining and
operating the Association, property management fees, costs and expenses of maintaining,
repairing, replacing and otherwise operating all Common Areas and all Common Area
Improvements located thereon (including, without limitation, costs of lighting, landscaping,
electrical charges and the like), the cost of utility services for the Common Areas, the cost of
insurance maintained by the Operator as described herein or in the Bylaws (including, without
limitation, directors and officers insurance), the costs of any fees or other payments due to or in
connection with any other association or the like to which the Property is subject, the costs and
expenses of exercising the powers and performing the duties of the Operator under this
Declaration and the Project Documents with respect to the Common Area, the actual and
estimated costs and expenses of maintaining, repairing, replacing and otherwise operating the
Common Parking Areas of the Project including management fees associated therewith, and the
costs and expenses of exercising the powers and performing the duties of the Operator under this
Declaration and the Project Documents with respect to the Common Parking Areas, and
maintaining any reasonable reserves for all such purposes as determined by the Operator.
"Common Parking Areas" - Those portions of the Common Areas designed for parking
as shown on the Site Plan.
"Common Signage" - All signage located within the Common Areas of the Project
(including any pylon sign but specifically excluding the sign panels thereon which identify
specific tenants, owners or occupants of the Project) which identifies the Project, the Project
management company, listing agent(s) or which provide other Project-oriented information
including, without limitation, Project directional signage.
"Co-Owner" - shall have the meaning provided to such term in Section 2.6 below.
"Declarant" - Pacific Starr-Essex Carlsbad, LLC, a California limited liability company
("Pacific Starr"), and any successor-in-interest (defined below). As used in this definition, a
"successor-in-interest" of Pacific Starr shall mean (a) a Person which, through a purchase or
acquisition of stock or partnership or membership interest(s), amalgamation, consolidation,
reorganization, dissolution, merger or similar transaction (as opposed to a purchase, transfer or
4
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conveyance of one or more Lots), becomes vested with the rights and assumes the obligations of
Pacific Starr, as "Declarant", pursuant to this Declaration, and (b) a Person which, through a
foreclosure or a private sale under the California Uniform Commercial Code (or be deed or
assignment in lieu of foreclosure or other remedy), becomes vested with the interest of the
"Declarant" under this Declaration (in which event, such Person shall be deemed to have
automatically assumed the obligations of the Declarant hereunder that accrue from and after the
date such vesting occurs). "Declarant" shall also mean the transferee from Pacific Starr or its
successor-in-interest of any one or more Lots comprising a portion of the Project, provided
Pacific Starr or its successor-in-interest expressly assigns to such transferee the rights of
"Declarant" and such transferee assumes the obligations of "Declarant" under this Declaration;
any such assignment and assumption of the rights and obligations of "Declarant" shall be in
writing and signed by both Pacific Starr or its successor-in-interest and by the transferee in
recordable form and shall be recorded by the transferee in the Office of the County Recorder of
San Diego County, California.
"Declaration" - This Declaration of Covenants, Conditions and Restrictions and Grant
of Easements for Promontory Business Park, as it may be amended or supplemented from time to
time.
"Design Guidelines" - Guidelines, rules and regulations which may be prepared and
issued from time to time (and which may be amended from time to time) by the Committee, and
approved and adopted by the Operator for the purpose of assisting Owners in preparing plans and
specifications for Improvements and signage and in preparing other plans, specifications and
other materials (including designs for signs and the like) which are subject to review by the
Committee pursuant to this Declaration.
"Environmental Laws" - Any past, present or future federal, state, local or foreign
statutory or common law, or any regulation, ordinance, code, plan, order, permit, grant,
franchise, concession, restriction or agreement issued, entered, promulgated or approved
thereunder, relating to (a) the environment, human health or safety, including, without limitation,
emissions, discharges, releases or threatened releases of Hazardous Materials into the
environment (including, without limitation, air, surface water, groundwater or land), or (b) the
manufacture, generation, refining, processing, distribution, use, sale, treatment, receipt, storage,
disposal, transport, arranging for transport, or handling of Hazardous Materials.
"Final Map" - The parcel map attached to this Declaration as Exhibit "B".
"Governing Documents" - shall have the meaning provided to such term in Section 2.1
below.
"Hazardous Material" - Any hazardous or toxic substance, material or waste which is or
becomes regulated by, or is subject to, or governed under, any local governmental authority, any
agency of the State of California or any agency of the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance which is (i) defined
as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under
Sections 25115,25117 or 25122.7, or listed pursuant to Section 25140, of the California Health
and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
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"hazardous substance" under Section 25316 of the California Health and Safety Code, Division
20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a
"hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and inventory), (iv) defined as a "hazardous substance" under Section 25281 of
the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum and any petroleum by-products, (vi) asbestos, (vii) urea
formaldehyde foam insulation, (viii) listed under Article 9 below or defined as hazardous or
extremely hazardous pursuant to Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (ix) designated as a "hazardous substance" pursuant to Section 311 of the
Federal water Pollution Control Act (33 U.S.C. § 1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C.
§ 6901 et seq. (42 U.S.C. §6903), or (xi) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9601 et seq. (42 U.S.C. § 9601).
"Impositions" - shall have the meaning provided to such term in Section 8.7 below.
"Improvements" - All structures and improvements of every type and kind, whether
above or below the land surface, including, without limitation, all Buildings, Building
Appurtenances, accessory structures, outbuildings, underground installations, generators, slope
and grade alterations, roads, curbs, gutters, sewers, storm drains, detention basins, drainage
facilities, irrigation facilities, utilities facilities, driveways, parking area improvements, walls,
fences, screening walls arid barriers, retaining walls, stairs, decks, windbreaks, plantings, planted
trees, shrubs and other landscaping, sidewalks, poles, lighting, signs including Common Signage,
loading areas and docks.
"Indemnitee" - shall have the meaning provided to such term in Section 7.9 below.
"Interest Rate" - shall have the meaning provided to such term in Section 3.11 below.
"Laws" - All laws, statutes, ordinances, rules, regulations, requirements, permits, or
approvals promulgated by any federal, state or local governmental entity with jurisdiction over
the Project or any business, use or operation thereon, as the same may, from time to time, be
amended, superseded, supplemented, modified or revised, including, without limitation, all
Environmental Laws.
"Lot" - Any separate legal lot or parcel which is a portion of the Project, now existing or
hereafter created after this Declaration is recorded, whether by a legal split, subdivision or
parcelization of a Lot, lot line adjustment, or by combination or merger of one or more Lots.
"Maximum Building Area" - The maximum square footage of Rentable Area permitted
to be constructed on a Lot as reflected in Exhibit "D" attached hereto, subject to modification
upon approval by Declarant or the Association as provided herein.
"Member, Membership" - "Member" shall mean an Owner entitled to membership in
the Association as provided in this Declaration, including Declarant. "Membership" shall mean
the property, voting and other rights and privileges of Members as provided herein, together with
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the correlative duties and obligations contained in this Declaration and the Articles and Bylaws
of the Association.
"Mortgage, Mortgagee, Mortgagor" - "Mortgage" shall mean any recorded mortgage
or Deed of Trust or other conveyance of a Lot or other portion of the Property to secure the
performance of an obligation which will be reconveyed upon the completion of such
performance. The term "Deed of Trust" or 'Trust Deed" when used herein shall be
synonymous with the term "Mortgage." The term "Mortgagee" shall mean a person or entity to
whom a Mortgage is made and shall include the beneficiary of a Deed of Trust <4Mortgagor"
shall mean a person or entity who mortgages his or her Lot to another (i.e., the maker of a
Mortgage), and shall include the Trustor of a Deed of Trust. The term "Trustor" shall be
synonymous with the term "Mortgagor," and the term "Beneficiary" shall be synonymous with
the term "Mortgagee."
"Occupant" - Any Person from time to time entitled by right of ownership or under any
lease, sublease or license to use and occupy any portion of a Building on any Lot within the
Project.
"Operator" - Declarant until such time as the Association is formed, whereupon the
Association shall become the Operator.
"Owner" - (i) Any Person (including Declarant) who from time to time hdlds fee title to
any Lot within the Project, and (ii) an Occupant of an Owner's entire Lot (or of all of the usable
area within the Building(s) on the Lot): (a) pursuant to a lease or sublease which, as of the date
of the Owner's designation of the Occupant as Owner, has a remaining term of twenty (20) years
or more, not including periods for which the term thereof may be extended by unexercised
options to extend; and (b) designated as such by the Owner of the Lot pursuant to Section 2.3
below. If an Owner shall designate an Occupant as Owner for purposes of this Declaration, then
the actual fee Owner shall not be deemed to be an Owner of such Lot during the period of such
lease or sublease or such period of time as which the Lot Owner shall designate such Occupant
as Owner, whichever is shorter; provided, however, such fee Owner shall remain liable for
assessments levied against such Lot as if such fee Owner were an "Owner" hereunder. If the
ownership of Improvements on a Lot shall be severed from the ownership of the land comprising
such Lot, the Owner of the Improvements shall be deemed an Owner hereunder and shall be
entitled to act on behalf of the Owner of the land for all purposes hereunder so long as such
ownership rights shall be segregated.
"Permittees" - Occupants and all customers, patrons, employees, concessionaires and
other invitees of Occupants.
"Person" - An individual, partnership, association, corporation, limited liability
company, trust, governmental agency, administrative tribunal or any other form of business or
legal entity.
"Project"- AH of the Property described in Recital A above and Exhibit "A", including
all Improvements now or hereafter located thereon, which shall be commonly known as The
Promontory Business Park.
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"Project Documents" - This Declaration, the exhibits attached hereto, the Articles, the
Bylaws, and any Rules and Regulations and/or Design Guidelines as may be adopted from time
to time by Declarant, the Committee or the Association, all as amended or supplemented from
time to time.
"Property" -The real property legally described on Exhibit "A", including all
Improvements now or hereafter located thereon, which is hereby subject to this Declaration. The
Property, together with all such Improvements is also referred to herein as the Project.
"Real Property Taxes and Assessments" - shall mean all any form of real property tax
or assessment, license fee, license tax, business license fee, commercial rental tax, levy, charge,
improvement bond, tax, water and sewer rents and charges, utilities and communications taxes
and charges or similar or dissimilar imposition imposed by any authority having the direct power
to tax, including any city, county, state or federal government, or any school, agricultural,
lighting, drainage or other improvement or special assessment district thereof, or any other
governmental charge, general and special, ordinary and extraordinary, foreseen and unforeseen,
which may be assessed against any legal or equitable interest of any Owner of any Lot and all
Improvements thereon.
"Rentable Area" - The rentable square footage of any Building determined as provided
in Section 3.4 below.
"Requesting Mortgagee" - shall have the meaning provided to such term in Section 27.9
below.
"Reserved Parking Space(s)" - Those portions of the Common Parking Areas, if any,
which from time to time may be designated for the exclusive use of any particular Owner(s),
Occupant(s) and Permittees of the Project, as more particularly defined and described in Section
8.2(c) below.
"Review Fee" - shall have the meaning provided to such term in Section 7.2 below.
"Rules and Regulations" - shall have the meaning provided to such term in Section
5.2(a) below.
"Sign Panel" - shall have the meaning provided to such term in Section 9.7 below.
"Sign Panel User(s)" - shall have the meaning provided to such term in Section 9.7
below.
"Site Plan" - The site plan attached to this Declaration as Exhibit "C".
"Storm Water Management Plan" - shall mean that certain Storm Water Management
Plan for Carlsbad Tract 03-12 dated August 29,2003 and revised on February 2,2004 prepared
by Rick Engineering Company.
"Supplemental Declaration" - shall have the meaning provided to such term in
Article 16 below.
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ARTICLE 2
ASSOCIATION; MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
2.1 Organization of Association. It is intended that California Civil Code Section
1350 et seq. (the "Act") apply to this Declaration and to the Project to the extent required by law.
To the extent the Act is applicable to the Project, the Project shall be a planned development type
of common interest subdivision. Declarant, in its good faith yet absolute judgment shall
determine if the Act applies. In addition, Declarant may to the extent the Act may be validly
waived, waive the Act, in whole or in part, as it may apply to the Project. Prior to the first
conveyance of a Lot subject to Regular Assessments to a Person that is not an Affiliate of
Declarant, Declarant shall cause the Association to be formed and take such steps as may be
necessary or appropriate in connection with such formation including, subject to all the
provisions of this Section 2.1, the preparation, execution, and filing of the Articles and Bylaws of
the Association and the making of all other appropriate filings for the following purposes:
(i) assuming any or all of the rights and obligations of Declarant and Operator under this
Declaration; (ii) exercising any or all of the duties, and powers of Declarant and Operator, in the
Articles and the Bylaws (hereafter, this Declaration, the Articles and the Bylaws may sometimes
be referred to collectively as the "Governing Documents"); and (iii) taking fee title to Lot 1.
The Association, when formed, shall be incorporated under the name of The Promontory
Business Park Owners Association, as a corporation not for profit under the Nonprofit Mutual
Benefit Corporation Law of the State of California, as required by Section 1363 of the California
Civil Code. All costs of formation and operation of the Association shall be Common Expenses.
2.2 Duties and Powers. The duties and powers of the Association are those set forth
in this Declaration and in the Articles and Bylaws, together with its general and implied powers
of a nonprofit corporation, generally to do any and all things that a corporation organized under
the laws of the State of California may lawfully do which are necessary or proper, in operating
for the peace, health, comfort, safety and general welfare of its Members, subject only to the
limitations upon the exercise of such powers as are expressly set forth in the Articles, the Bylaws
and in this Declaration. The Association shall make available for inspection by any prospective
purchaser of a Lot, any Owner of a Lot, and the Beneficiaries, insurers and guarantors of any
Mortgage on any Lot, current copies of the Declaration, the Articles of Incorporation, the
Bylaws, the Rules and Regulations, the Design Guidelines, and all other books, records, and
financial statements of the Association.
2.3 Membership. Every Owner of a Lot which is subject to Regular Assessments by
the Association (even if assessments have not yet commenced with respect to such Lot) shall be
a Member of the Association. Lot 1 is not subject to Regular Assessments, that is Regular
Assessments which might otherwise be attributable to or allocable to Lot I shall be allocated
among Lots 2 through 7, inclusive. Accordingly the Owner of Lot 1 shall not be a Member, and
all references to a "Lot" or "Lots" in this Article 2 shall exclude Lot 1. Membership shall be
appurtenant to ownership of any Lot subject to Regular Assessments, and membership shall not
be separated from such ownership or transferred, pledged or alienated in any way, except that an
Owner, upon giving written notice to the Association, may, at its option, grant to an Occupant
which satisfies the requirements of an Owner under Article 1 above, a power coupled with an
interest to act as the Owner's agent in all matters relating to the Association; any such power
~LOSAl:89449.v3
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shall automatically terminate upon expiration of such Occupant's lease or the earlier termination
of such Occupant's tenancy for any reason. Any attempt to transfer a membership in violation of
this Section 2.3 shall be void and shall not be reflected in the books and records of the
Association.
2.4 Transfer. The Association membership held by any Owner of a Lot shall not be
transferred, pledged or alienated in any way, except upon the sale or encumbrance of such
Owner's Lot, and then only to the purchaser or Mortgagee of such Lot. Any attempt to make a
prohibited transfer is void, and will not be reflected upon the books and records of the
Association. If the Owner of any Lot should fail or refuse to transfer the membership registered
in his name to the purchaser of such Lot upon transfer of fee title thereto, the Board of Directors
shall have the right to record the transfer upon the books of the Association. Until satisfactory
evidence of such transfer has been presented to the Board, the purchaser shall not be entitled to
cast the votes attributable to such Lot at meetings of the Association. The Association may levy
a reasonable transfer fee against such purchaser (which fee shall be added to the Regular
Assessment chargeable to such new Owner) to reimburse the Association for the administrative
cost of transferring the membership to the new Owner on the records of the Association.
2.5 Voting Rights. The Association shall have two (2) classes of voting membership
as follows:
(a) Class A. Class A Members shall be all Owners of Lots. The Class A
Members shall be entitled to cast in the aggregate a total of 10,000 votes. Each Class A Member
shall from time to time be entitled (with respect to each Lot owned by such Member) to a
number of votes (rounded to the nearest whole vote) equal to 10,000 multiplied by a fraction the
numerator of which is the Maximum Building Area of such Lot and the denominator of which is
the total of the Maximum Building Areas of all Lots within the Project. For example, if a Lot
has a Maximum Building Area of 25,000 square feet and if, at a particular time, the total of the
Maximum Building Areas of all Lots within the Property is 125,000 square feet, then the Class A
Member who owns such Lot shall be entitled at such time to 2,000 votes. When more than one
Person holds an interest in any Lot, all such Persons shall be Members. The vote for such Lot
shall be exercised in accordance with Section 2.6 below.
(b) Class B. The Class B Member shall be Declarant. The Class B Member
shall be entitled to cast 30,000 votes. The Class B Member shall be Declarant, so long as
Declarant owns any interest in a Lot or until Class B membership ceases (as described below). If
the Class B membership is comprised of more than one Member, all decisions of the Class B
membership under this Declaration shall require unanimous consent of the Class B Members.
The Class B membership shall cease when Declarant, no longer owns any interest (including but
not limited to any security interest) in Lots or upon the earlier recording of an amendment to this
Declaration, executed solely by Declarant, stating that the Class B membership has ceased. If an
affiliated entity succeeds to the Declarant's ownership interest in all of the Project, then such
entity shall succeed to the Class B Member voting rights of Declarant.
2.6 Vote Distribution. All voting rights shall be subject to the restrictions and
limitations provided in this Declaration and in the Articles and Bylaws. When more than one
Person holds an interest or interests in any Lot ("Co-Owner"), all such Co-Owners shall be
10
~LOSAl:89449.v3
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Members and may attend any meetings of the Association, but only one such Co-Owner shall be
entitled to exercise the votes to which the Lot is entitled. Such Co-Owners may from time to
time all designate in writing one of their number to vote. Fractional votes shall not be allowed,
and the Class A votes for each Lot shall be exercised, if at all, as a unit. Where no voting
Co-Owner is designated or if such designation has been revoked, the votes for such Lot shall be
exercised as the majority of the Co-Owners of the Lot mutually agree. Unless the Board receives
a timely written objection from a Co-Owner, it shall be presumed that the corresponding voting
Co-Owner is acting with the consent of his or her Co-Owners. No votes shall be cast for a Lot
where the Co-Owners present in person or by proxy owning the majority interests in such Lot
cannot agree to said votes or other action. The nonvoting Co-Owner or Co-Owners shall be
jointly and severally responsible for all of the obligations imposed upon the jointly owned Lot
and shall be entitled to all other benefits of ownership. All agreements and determinations
lawfully made by the Association in accordance with the voting percentages established herein,
or in the Bylaws, shall be deemed to be binding on all Owners, their successors and assigns.
2.7 Powers. The Association shall have the following powers, rights and duties, in
addition to those provided elsewhere in this Declaration, the Articles and the Bylaws and those
powers granted to a nonprofit mutual benefit corporation pursuant to the California Corporations
Code:
(a) Acquisition of Property. The Association shall have the power to acquire
(by gift, purchase or otherwise), own, hold, improve, operate, maintain, convey, sell, lease,'
transfer, dedicate for public use or otherwise dispose of real or personal property, including,
without limitation, Lot 1, in connection with the affairs of the Association.
(b) Assessments. Liens. The Association, acting as Operator through its
Board, shall have the power to levy and collect assessments pursuant to Article 3 below and to
perfect and enforce liens in accordance with the provisions of Article 3 below.
(c) Contracts. The Association, acting as Operator through its Board, shall
have the power to contract for goods and/or services for the Common Areas or for the
performance of any power or duty of the Operator under this Declaration, subject to limitations
set forth elsewhere in this Declaration, the Articles or the Bylaws. The Association's power to
contract shall include, but is not limited to, the right to enter into agreements with one or more
other owners' associations for the purposes described in this Section 2.7(c).
(d) Delegation. The Association shall have the power to delegate its authority
and powers to committees, officers or employees of the Association.
(e) Enforcement. The Association, as Operator through its Board, shall have
the power to enforce this Declaration pursuant to the provisions hereof.
(f) Security Services. The Association, acting as Operator through its Board,
shall have the power to provide, or to contract for the provision of, security patrols or other
security measures, or both, as the Board deems necessary.
(g) Variances. The Association, acting as Operator through its Board, shall
have the power to grant reasonable variances from the provisions of this Declaration from time
11
~LOSAl:89449.v3
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to time, as the Board may deem, in its sole discretion, to be in the best interests of the Project, in
order to overcome practical difficulties and to prevent unnecessary hardship in the application of
the provisions contained herein; provided, however, that: (i) a variance shall not materially
affect any of the Lots or Improvements in the Project; and (ii) the Owner seeking the variance
shall otherwise be subject to and conform with all applicable governmental laws, ordinances,
regulations and requirements. No variance granted pursuant to the authority granted herein shall
constitute a waiver of any provision of this Declaration as applied to any person or real property.
2.8 Initial Board of Directors. The initial Board of Directors of the Association shall
consist of three (3) directors appointed by Declarant upon the incorporation of the Association
and shall hold office until the initial Board calls the first annual meeting of Members pursuant to
Section 2.11 below.
2.9 Subsequent Board of Directors. At the first annual meeting of Members, anew
Board consisting of three (3) directors shall be elected, and such Board shall serve until the next
annual meeting. At each subsequent annual meeting of Members, a new Board consisting of
three (3) directors shall be elected, and such Board shall serve until the next annual meeting.
The Bylaws may provide for staggered terms and lengths of terms for directors different from
those initially set forth in this Declaration and may provide for a greater or lesser number of
directors than set forth herein; provided, however, in no event shall there be more than seven (7)
directors or less, than three (3) directors. The Board shall undertake all duties and responsibilities
of the Association and the management and conduct of the affairs thereof, except as expressly
reserved herein to a vote of the Members.
2.10 Personal Liability. No member of the Board, or of any committee of the
Association, or any officer or manager of the Association shall be personally liable to any
Owner, or to any other party, including the Association, for any damage, loss or prejudice
suffered or claimed on account of any act, omission, error or negligence of any such Person.
2.11 Annual Membership Meetings. The initial Board may call the first annual
meeting of Members at any time after the Association has been formed. Thereafter, the
Association shall hold an annual meeting of the Members in accordance with the Bylaws of the
Association.
2.12 Pre-Association Powers of Declarant. For purposes of this Article 2, the
Association shall not be deemed formed until it is incorporated and the Board has been appointed
or elected. Until such time as the Association has been formed, Declarant shall be entitled to
exercise all rights and powers the Association would have when formed, as provided in this
Declaration, and of an association formed in accordance with the requirements of the Act,
including, but not limited to, the right to levy and enforce the payment of Assessments pursuant
to the terms of the Act and this Declaration.
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ARTICLE 3
COVENANT FOR PAYMENT OF ASSESSMENTS
3.1 Creation of Lien and Personal Obligation for Assessments. Each Owner, for each
Lot owned which is subject to assessment hereunder, hereby covenants and agrees, and by
acceptance of a deed therefor, whether or not it shall be expressed in such deed, is deemed to
covenant and agree to pay to the Operator: (a) Regular Assessments described in Section 3.6
below for Common Expenses; (b) Special Assessments described in Section 3.7 below;
(c) Reimbursement Assessments described in Section 3.8 below; and (d) such other assessments
. which the Operator is authorized to levy pursuant to this Declaration, such assessments to be
established and collected as provided in this Declaration. Assessments, together with interest
and a late fee pursuant to Section 3.11 below, reasonable collection costs and attorneys' fees,
shall (except as otherwise provided in Section 3.10 below) be a charge on the Lot and shall be a
continuing lien upon the Lot against which each such assessment is made, the lien to be effective
upon recordation of a notice of delinquent assessment. Each such assessment, together with
interest pursuant to Section 3.11 below, reasonable collection costs and attorneys' fees, shall also
be the personal obligation of the Person who was the Owner of such Lot at the time the
assessment fell due. If more than one Person is the Owner of a Lot subject to assessment, the
personal obligation to pay such assessment shall be joint and several. The personal obligation
for delinquent assessments shall not pass to an Owner's successors in title, however, unless
expressly assumed by them, but any lien established hereunder shall remain a charge against the
Lot, subject to the provisions of Section 3.13 below.
3.2 Purpose of Assessments. The assessments levied by the Operator shall be used
exclusively to pay Common Expenses (as defined in Article 1 above), for permitted
reconstruction and capital improvements expenses, to reimburse the Operator for the costs
incurred in bringing an Owner into compliance with the Project Documents and for such other
purposes as are expressly set forth in this Declaration.
3.3 Budgets. The Operator shall use commercially reasonable efforts to prepare or
cause to be prepared and shall distribute to all Owners whose Lots are subject to Regular
Assessments, at least thirty (30) days prior to the date for commencement of Regular
Assessments pursuant to Section 3.6 below, and at least thirty (30) days prior to the
commencement of each calendar year thereafter, a pro forma operating budget ("Budget") for
such first or successive calendar year setting forth the estimated revenue and expenses on an
accrual basis. The Budget shall include a reasonable allowance for contingencies, replacements
and reserves. Until the first organizational meeting of the Association is held, Declarant shall
have full authority to establish and determine the amount of Regular Assessments. Thereafter,
Regular Assessments shall be determined by the Association through its Board as provided
herein. Once the Association has been formed, the Operator shall deliver, together with each
annual Budget: (a) notice of the Members' right to obtain copies of minutes of Board meetings,
to the extent required under California Civil Code Section 1363; and (b) the summary of the
provisions of California Civil Code Section 1354, as required by such Section.
3.4 Rentable Area. For purposes of this Declaration, the term "Rentable Area" shall
be defined in accordance with the American National Standards Institute ANSI Z 65.1-1996
13
~LOSAl:89449.v3
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("BOMA Standards") method of measuring Rentable Area, as such BOMA Standards may be
amended from time to time. The Rentable Area of each Building shall be determined from time
to time by the Operator. Upon the alteration or modification of any Building which may
materially affect the determination of Rentable Area of the Building, the Rentable Area of the
Building shall be recomputed as set forth in this Section 3.4 and the Allocable Share for the
Owner of the Lot upon which such Building is constructed and for all other Owners and Lots
shall be recomputed by the Operator based upon such adjustments to any Rentable Area in the
Project. The party or parties who cause such alteration or modification of any such Building
shall pay for the cost of recomputation.
3.5 Lots Subject to Assessment: Allocation of Assessments. All Lots within the
Project (other than Lot 1) are subject to Regular Assessments and all Lots within the Project
(other than Lot 1) are subject to Special Assessments. Except as otherwise provided herein, all
Regular Assessments and Special Assessments for Common Expenses shall be allocated pro rata
among all Lot Owners (other than the Owners of Lot 1) based upon each such Lot's then
Allocable Share with respect to such Common Expenses as provided in Article 1 above.
3.6 Regular Assessments.
(a) Purpose. Regular Assessments shall be used only to defray Common
Expenses. v
(b) Date of Commencement of Regular Assessments: Due Dates. Regular
Assessments shall commence upon the date of Declarant's first conveyance of a Lot subject to
Regular Assessments to a Person that is not an Affiliate of Declarant. The first Regular
Assessments shall be adjusted according to the number of months remaining in the calendar year
in which such assessments commence and shall be prorated for any partial month (on the basis of
a 30-day month). The Operator shall fix the amount of the Regular Assessment against each Lot
at least thirty (30) days in advance of each Regular Assessment period and shall provide written
notice of such Regular Assessments to every Owner of a Lot subject thereto.
(c) Failure to Fix Regular Assessments. The omission by the Operator to fix
the Regular Assessments hereunder before the expiration of any calendar year, for the next year,
shall not be deemed either a waiver or modification of any provisions of this Declaration or a
release of any Owner from the obligation to pay the assessments or any installment thereof for
that or any subsequent year, and the Regular Assessment fixed for the preceding year shall
continue until new Regular Assessments are fixed.
(d) Revised Regular Assessment. If the Operator reasonably determines that
the Regular Assessment established for any year is, or will become, insufficient to meet all
Common Expenses, it may determine the approximate amount of such deficiency and revise the
amount of the Regular Assessments for each Owner for the balance of such year to reduce or
avoid the deficiency. After the end of each calendar year, the Operator shall cause an accounting
to be made of all Common Expenses for such year and the amount of Regular Assessments and
any Special Assessments paid for such year. If the Regular Assessments and any Special
Assessments collected exceed the Common Expenses, the Operator may refund the excess to
14
~LOSAl:89449.v3
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Owners, or apply such excess toward Regular Assessments next becoming due from Owners, in
either event in the same proportion as the Regular Assessments were paid.
(e) Payment of Assessments. Regular Assessments shall be due and payable
by the Owners to the Operator in advance in equal monthly installments, on or before the first
(1st) day of each month of each calendar year, or in such other manner as the Operator shall
designate.
3.7 Special Assessments.
(a) Purpose. Special Assessments may be levied by the Operator:
(i) If the Operator determines that the Regular Assessments are or will
be insufficient to defray actual Common Expenses for a given year due to unanticipated
delinquencies or non-payment of any Assessments by any Owner(s) or cost increases or
as Reconstruction Assessments for unexpected repairs, replacements or reconstruction of
any Improvements in those Common Areas maintained by the Operator;
(ii) If funds are otherwise required for any authorized activity of the
Operator; or
(iii) As Capital Improvement Assessments, for the purpose of
defraying, in whole or in part, the cost of construction of any capital improvements
within the Common Areas deemed reasonably necessary by the Operator for the benefit
of the Project, provided that any such capital improvement assessment in excess of five
percent (5%) of all Regular Assessments budgeted for that calendar year, except for those
necessary for compliance with the Americans With Disabilities Act or any other legal
requirements enacted after the initial construction of the Common Area Improvements in
question, shall require approval by the vote or written consent of Members holding a
majority of the voting power of the Association, and the Declarant for so long as
Declarant owns any portion of the Project.
(b) Establishment. The Operator shall determine the approximate amount
necessary to defray the expenses set forth in Section 3.7(a) above which shall be assessed against
the Owners as a Special Assessment; provided, however, that the Operator may, in its discretion,
prorate any such Special Assessment over the remaining months of the calendar year or levy the
full assessment immediately against each Lot subject to assessment. Special Assessments (other
than Special Assessments for delinquent or non-payment by any Owners which shall be assessed
ratably against all non-delinquent Owners) may be assessed against fewer than all Lots in the
Project in the reasonable discretion of the Operator based upon an equitable allocation of the
Common Expenses comprising such Special Assessments to the Lots which are benefited by
such Common Expenses. Any Special Assessment in excess often percent (10%) of the
budgeted Regular Assessments of the Association for the calendar year in which a Special
Assessment is levied shall require approval by (i) Members holding a majority of the voting
power of the Association, and (ii) the Declarant for so long as Declarant owns any portion of the
Project.
15
~LOSAl:89449.v3
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(c) Payment of Assessments. Special Assessments shall be due and payable
within fifteen (15) days after a Member receives written notice from the Operator specifying the
amount of the Special Assessment, unless the Operator specifies in such notice a later date for
payment, provided in no event shall any Owner be liable for any Special Assessments until its
obligation to pay Regular Assessments shall have commenced hereunder.
3.8 Reimbursement Assessment. The Operator may also impose a Reimbursement
Assessment against any Owner to reimburse the Operator for costs incurred in bringing the
Owner and the Owner's Lot into compliance with the provisions of this Declaration, the Articles,
and Bylaws of the Association, and the Rules and Regulations and Design Guidelines of the
Association, if any, which assessment may be imposed by the Operator after notice and an
opportunity for a hearing which satisfy the requirements of § 7341 of the California Corporations
Code, as set forth in the Bylaws.
3.9 No Assessment for Real Property Taxes. The Real Property Taxes and
Assessments for each Lot (other than Lot I) shall be paid by the Owners of each such Lot,
respectively, directly to the taxing authority and not as Assessments pursuant to this Declaration.
3.10 Rate of Assessment. Regular Assessments, Capital Improvement Assessments
and Reconstruction Assessments shall be borne by the Owners as provided in Section 3.5 above.
If a Lot is further subdivided in accordance with Section 8.5 below, then the Maximum Building
Area for such Lot prior to such resubdivision shall be reallocated (but not increased or
decreased) by the Owner of such Lot by Recorded instrument setting forth the details of such
reallocation, provided that the Maximum Building Area so reallocated to each Lot resulting from
such resubdivision shall constitute the maximum square footage of floor space which may be
constructed on such Lot. If a Lot contains more than one Building then the Regular Assessments
for such Lot shall include the Regular Assessments for all such Buildings and Common
Expenses for each such Building shall be determined and detailed by the Operator. If no such
instrument reallocating assessments is Recorded, the Maximum Building Area for such Lot prior
to its further subdivision shall be deemed allocated to the newly subdivided Lots in proportion to
their respective gross land areas (as shown on the Recorded final map for such Lot). If the
Rentable Area or use of any Building changes or the number of parking spaces allocated to any
Lot changes with Operator approval in accordance with the terms of this Declaration, the
applicable Allocable Share for such Lot and all other Lots shall be correspondingly adjusted by
the Operator. All installments of Regular Assessments shall be collected in advance on a regular
basis by the Operator, at such frequency as the Operator shall determine from time to time. In
the event that any costs are incurred due to the actions of any Owner, said Owner shall be solely
responsible for such incurred costs and may be assessed for the same.
3.11 Effect of Non-Payment of Assessments; Remedies of the Operator. Any
assessment against an Owner and its Lot made in accordance with this Declaration shall be a
debt of the Owner of the Lot from the time the assessment is due. Any assessment not paid
within fifteen (15) days after the due date shall be increased by a $500 late fee. In addition, any
assessment not paid within thirty (30) days after the due date shall bear interest from thirty (30)
days following the due date at the rate of the greater of (a) twelve percent (12%) per annum, or
(b) two percent (2%) per annum over the Prime Rate published in the California Edition of the
Wall Street Journal most recently before the due date, but in no event greater than the maximum
16
-LOSAI:89449.v3
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amount permitted by applicable law (the "Interest Rate"). The Operator may bring an action at
law against the Owner personally obligated to pay the assessment, and in addition thereto, or in
lieu thereof, may foreclose the lien against the Lot. Any assessment not paid within fifteen (15)
days after the due date shall be delinquent. The amount of any such delinquent assessment plus
costs of collection, late charges, interest and attorneys' fees, shall be and become a Hen upon the
Lot when the Operator causes to be recorded in the Office of the County Recorder of San Diego
County, California, a Notice of Delinquent Assessment, which shall state the amount of such
delinquent assessment and such other charges thereon as may be authorized by this Declaration,
a description of the Lot against which the same has been assessed, the name of the record Owner
of the Lot and, in order for the lien to be foreclosed by non-judicial foreclosure, the name and
address of the trustee authorized by the Operator to enforce the lien by sale. The Notice of
Delinquent Assessment shall be signed by the person designated by the Operator for that purpose
or, if no one is designated, by Declarant or the President of the Association. Upon payment of
the delinquent assessment and charges in connection with which the Notice of Delinquent
Assessment has been recorded, or other satisfaction thereof, the Operator shall cause to be
recorded a further notice stating the satisfaction and the release of the lien thereof. Such lien
may be enforced by sale by the Operator after failure of the Owner to pay such assessment in
accordance with its terms, such sale to be conducted in accordance with the provisions of §2924,
§2924b and §2924c of the California Civil Code applicable to the exercise of powers of sale in
mortgages or in any other manner permitted by law, and for purposes of the right of Operator to
enforce such lien by power of sale, each Owner hereby, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, irrevocably grants, transfers, conveys
and assigns to Operator, IN TRUST WITH POWER OF SALE, for the benefit of Declarant, any
and all of such Owner's right, title and interest in and to the Lot owned by such Owner,
including, without limitation, any and all Improvements located thereon, such grant, transfer,
conveyance and assignment to (i) be automatically deemed effective upon the recordation of any
such lien in the Office of the County Recorder of San Diego County, California, and (ii) continue
until such lien has been satisfied, whether by payment by the delinquent Owner or by foreclosure
by judicial process or such power of sale. The Operator shall have the power to purchase the Lot
at the foreclosure sale and to hold, lease, mortgage and convey the same. Suit to recover a
money judgment for unpaid assessments, interest and attorney's fees may be commenced and
maintained without foreclosing or waiving the lien securing the same. Any sale or transfer of
any Lot pursuant to this Section 3.11 shall not disturb the possession, or otherwise diminish the
rights or enlarge the obligations, of any Occupant under any then-existing lease, provided such -
lease is not to an Affiliate of the defaulting Owner and such Occupant attorns to the successor
Owner of such Lot. If after exhausting all reasonable remedies provided in this Section 3.11,
Operator shall not have collected the full amount of any outstanding and unpaid Assessment by
such defaulting Owner, Operator shall have the right to impose a Special Assessment against all
non-delinquent Owners on a pro rata basis as provided in Sections 3.5 and 3.7 above, except that
the denominator shall not include the Maximum Building Area of the Lot encumbered by such
Notice of Delinquent Assessment so long as the defaulting Owner shall be the Owner of such
Lot. Should the Operator subsequently collect from any defaulting Owner a Reimbursement
Assessment for delinquent amounts previously assessed to the non-delinquent Owners as a
Special Assessment, the Operator shall reimburse the non-defaulting Owners ratably their pro
rata portion of the total Reimbursement Assessment amount collected by Operator.
17
~LOSAl:89449.v3
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3.12 Right of Owners to Audit Books and Records of Association. Each year, each
Owner whose Lot is subject to Regular Assessments shall have the right, exercisable by
delivering ten (10) days advance written notice to the Operator, to have conducted, at such
Owner's cost and expense, one (I) audit of the Operator's books and records pertaining to the
operation of the Project. Any such audit may encompass any or all of the three (3) previous
years of the operation of the Project; provided, however, any Owner shall be entitled to audit any
given year only once. If any such audit discloses any error in the determination of the
proportionate share of Regular Assessments of any Owner or in the composition of any cost
comprising the Regular Assessments: (a) an appropriate adjustment shall be made promptly
between the Owner(s) and the Operator to correct the error, and (b) if the error is greater than ten
percent (10%) of the auditing Owner's actual proportionate share of the Regular Assessments,
then the Operator shall reimburse the auditing Owner for the reasonable auditor's fees and costs
incurred by the auditing Owner in having the audit performed. A copy of any audit shall be
provided to the Operator.
3.13 Subordination of the Lien to Mortgages. The lien of any Assessment levied upon
a Lot pursuant to this Declaration shall be subordinate and subject to the lien of any Mortgage
now or hereafter placed upon such Lot, which has been made in good faith and for value and
recorded prior to the recordation of any Notice of Delinquent Assessment against such Lot
pursuant to Section 3.11 above, and the sale or transfer of such Lot pursuant to judicial or
nonjudicial foreclosure of a prior Mortgage shall extinguish the Hen of such Assessments as to
payments which became due prior to such sale or transfer; provided, however, that the Owner
shall continue to remain personally liable for all delinquent Assessments and provided further
that the foreclosure of any such Mortgage shall not extinguish or preclude the right of the
Operator to assess against such foreclosed Lot a Special Assessment for a pro rata reallocation of
such Assessments which are unpaid by the prior Owner as provided in Section 3.11 above. No
sale or transfer shall relieve such Lot from lien rights for any Assessments thereafter becoming
due. Where the Mortgagee of a prior Mortgage or other purchaser of a Lot obtains title to the
same as a result of foreclosure, such acquirer of title, its successors and assigns, shall not be
liable for the share of Assessments chargeable to such Lot which became due prior to the
acquisition of title to such Lot by such acquirer, except for liens or claims for a share of such
Assessments resulting from a prorata reallocation of such Assessments to all Lots within the
Property as a Special Assessment as provided in Section 3.11 above.
3.14 Estoppel Certificate. The Operator shall furnish or cause an appropriate officer to
furnish, within fifteen (15) days of a written demand by any person, a certificate signed by an
officer of the Operator setting forth whether the assessments on a specified Lot have been paid
current and, if not, the amount of any delinquency. A properly signed certificate of the Operator
with respect to the status of assessments on a Lot is binding upon the Operator as of the date of
its issuance.
3.15 Personal Liability of Owner. No Owner may exempt itself from personal liability
for assessments, nor any part thereof, levied by the Operator, nor release the Lot it owns from the
liens and charges of assessments pursuant to this Declaration, by waiving the use and enjoyment
of the Common Areas and facilities thereof, or by abandonment of its Lot(s).
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3.16 No Offsets. All assessments shall be payable in the amounts specified by that
particular assessment, and no offsets against such amount shall be permitted for any reasons,
including, without limitation, a claim that the Association is not properly exercising its duties of
maintenance, operation or enforcement.
3.17 Transfer of Property. After transfer of any Lot within the Project, the transferring
Owner shall not be liable for any assessment levied on such Owner's prior Lot after the date such
Lot is transferred and written notice of such transfer is delivered to the Operator. The
transferring Owner shall remain responsible for all assessments and charges levied on its Lot
prior to any such transfer and notice to the Operator.
ARTICLE 4
ARCHITECTURAL AND DEVELOPMENT REVIEW COMMITTEE
4.1 General Control over Property. Declarant shall initially exercise all of the rights
and powers of the Committee set forth in this Declaration (including without limitation Article 6
below), unless and until any or all of such rights and powers are assigned by Declarant as
provided in Section 4.2 below. After formation of the Association, if and when any or all of
such rights are assigned by Declarant to the Committee, any consent or approval previously
given by Declarant in the exercise of such rights and powers shall be binding upon the
Committee and all Owners. Declarant and Committee shall follow the basic procedures for
granting or denying approvals, as set forth in this Article 4, unless otherwise provided in a
Supplemental Declaration, a deed or lease of a Lot reflecting a conveyance from Declarant.
Whenever this Declaration requires any matter to be approved by the Committee, such matter
shall require approval by Declarant (in lieu of approval by the Committee) until such rights and
powers are assigned by Declarant to the Committee pursuant to Section 4.2 below. After such
rights and powers have been so assigned to the Committee, the Committee's approval of such
matters shall be required as set forth in this Declaration.
4.2 Assignment of Declarant's Rights. Declarant may at any time, and from time to
time, assign all or any portion of its rights under this Article 4 with respect to all or any portion
of the Property to the Committee established in this Article 4. Unless and until Declarant assigns
any of its rights to the Committee, Declarant may unilaterally (i.e., without approval of the Board
of the Association, the Members or any other Owner) by Recorded instrument (i) reasonably
amend from time to time the procedures for granting or denying approvals, as set forth in this
Article 4, and (ii) terminate or modify the requirements for architectural review and approval by
Declarant or the Committee as provided in this Article 4 with respect to all or any portion of the
Property, in which event this Declaration shall remain in full force and effect except for the
provisions so terminated or modified.
4.3 Members of Committee. The Architectural Review and Design Review
Committee, sometimes referred to in this Declaration as the "Committee," shall consist of three
(3) members. The initial members of the Committee shall be representatives of Declarant or
Owner(s) appointed by Declarant. Declarant shall have the right and power at all times to
appoint and remove a majority of the members of the Committee or to fill any vacancy of such
majority until such time as Declarant's Class B membership voting rights shall cease as provided
19
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in Section 2.5 above; provided, however, that Declarant may, prior to such date, transfer
Declarant's rights of appointment to the Owners of a majority of the Lois by Recorded
instrument. In any event the Owners of a majority of the Lots may appoint and remove at least
one (I) member of the Committee. After Declarant's Class B membership voting rights cease or
upon such earlier date as Declarant may have transferred Declarant's right to appoint a majority
of the members of the Committee, the Owners shall have the power to appoint and remove all of
the members of the Committee by vote of the Members. If and when Declarant assigns any of its
rights to the Committee, as provided in Section 4.2 above, the Committee shall begin to function
as a committee. The Committee shall have the right and duty to promulgate reasonable standards
against which to examine any request made pursuant to this Article 4, in order to ensure that the
proposed plans conform harmoniously to the exterior design and existing materials of the
buildings in the Property. Association Board members may also serve as Committee members.
4.4 Removal. The right to remove any member or alternate member of the
Committee shall be and is hereby vested solely in the Declarant until such time as Declarant shall
transfer and assign such rights to the Association, at which time, the Association, through its
Board shall possess such rights.
4.5 Terms of Office. The term of all Committee members appointed shall be one (1)
year. Any new member appointed to replace a member who has resigned or has been removed
shall serve such member's unexpired term. Members whose terms have expired may be
reappointed.
4.6 Resignations: Vacancies. Any member of the Committee may, at any time, resign
from the Committee upon written notice to Declarant, the Operator and the Board.
4.7 Duties and Appeals. It shall be the duty of the Committee to perform the
functions required of it pursuant to this Declaration; to consider and act upon each Application
which is submitted to it pursuant to the terms of this Declaration; to enforce the Design
Guidelines if any are adopted; and to perform all other duties delegated to it by the Operator or
imposed upon it by this Declaration. Any Owner may appeal any decision of the Committee
upon written notice to the Committee.
4.8 Meetings. The Committee shall meet as often as it, in its sole, absolute and
unfettered discretion, considers necessary or proper to perform properly its duties and obligations
pursuant to this Declaration. The vote, written consent or written approval of any two (2)
members shall constitute an act by the Committee, unless the unanimous decision of its members
is otherwise required pursuant to this Declaration. The Committee shall keep written records of
all actions the Committee takes.
4.9 Design Guidelines. The Committee may, from time to time, and in its sole,
absolute and unfettered discretion, adopt Design Guidelines and amend any Design Guidelines
adopted by the Committee, provided, however, that no such amendment shall apply to any
previously approved (or deemed approved) Improvement within the Project. The Design
Guidelines may include (a) standards and procedures for Committee review; and (b) guidelines
for Improvements, which may include, but not necessarily be limited to, guidelines for the
architectural design of Improvements, site plans, floor plans and exterior elevations, the size and
20
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location of buildings (including setback requirements), the height of Buildings (including
architectural features), the location and pitch of slopes, requirements for grading, excavation and
drainage, the location and capacity of facilities for utilities, parking areas, loading areas and
docks, trash areas (including compactor pads), landscaping designs and irrigation plans, color
schemes, signs, exterior lighting, and finishes and materials for use in the Project.
Notwithstanding the foregoing, and notwithstanding anything in any Design Guidelines to the
contrary (or which may be interpreted as being to the contrary), the following are exempt from
the Design Guidelines: (i) Improvements existing or under construction on the date of
recordation of this Declaration; and (ii) the repair, restoration and/or reconstruction of those
Improvements identified in clause (i) above in the event of partial or total destruction or damage
thereof which is not intentionally caused by the Owner.
4.10 Variances. Declarant or the Committee may authorize variances from compliance
with any of the architectural provisions of this Declaration, including restrictions upon height,
size, floor area or placement of structures, or similar restrictions, when circumstances such as
topography, natural obstructions, hardship, aesthetic or environmental consideration may require.
Such variances must be evidenced in writing and signed by an authorized representative of
Declarant or the Committee. If such variances are granted, no violation of the covenants,
conditions and restrictions contained in this Declaration shall be deemed to have occurred with
respect to the matter for which the variance was granted. The granting of such a variance shall
not operate to waive any of the terms and provisions of this Declaration for any purpose except
as to the particular property and particular provision hereof covered by the variance, nor shall it
affect in any way the Owner's obligation to comply with all Laws.
ARTICLE 5
DUTIES AND POWERS OF OPERATOR
5.1 Operator. Declarant shall initially exercise all of the rights and powers of the
Operator set forth in this Declaration (including without limitation Article 6 below) until the
formation of the Association, whereupon the Association will exercise all rights and powers of
the Operator. Any consent or approval previously given by Declarant in the exercise of such
rights and powers as Operator shall be binding upon the Association and all Owners. The
Operator shall be charged with the duties set forth in this Declaration, including, but not limited
to, the following:
(a) Assessments. The Operator shall fix, levy, collect and enforce
Assessments as described in Article 3 above.
(b) Common Areas. The Operator shall maintain, repair, replace, restore,
operate, control and manage all Common Areas of the Project, including, without limitation, any
easement areas, wherever located and all facilities, Improvements and equipment and
landscaping located thereon, as further described in Article 14 below, except to the extent such
maintenance has been assumed by a governmental agency or public or private utility, and except
as otherwise set forth herein.
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(c) Discharge of Liens. The Operator shall discharge by payment, if
necessary, any lien against the Common Areas of the Project or any portion thereof, and, if
placed thereon as a result of the action of an Owner or Owners, assess the cost thereof as a
Reimbursement Assessment (as described in Section 3.8 above) to the Owner or Owners
responsible therefor, provided, however, that such Owner or Owners shall be given notice of the
lien and the proposed discharge at least fifteen (15) days prior to discharge by the Operator, any
opportunity to be heard by the Operator, either orally or in writing, at least five (5) days prior to
the proposed discharge and before a decisions to discharge is made.
(d) Payment of Expenses. The Operator shall pay all expenses and
obligations incurred by the Operator in the conduct of its business, including, without limitation,
all licenses and Common Expenses levied or imposed against the Lots and Real Property Taxes
and Assessments levied or imposed against Lot 1.
5.2 Powers of Operator. In addition to the powers elsewhere provided for in this
Declaration, and without limiting the generality thereof, Operator shall exercise all powers
vested in the Association as well as the following powers:
(a) Adoption of Rules. Operator may adopt and/or amend, from time to time,
reasonable non-discriminatory rules and regulations not inconsistent with this Declaration (the
"Rules and Regulations"). The Rules and Regulations shall relate to the use of the Common
Areas and all facilities thereon, and to the conduct of Occupants and Permittees with respect to
the Project and the Owners. Such Rules and Regulations shall be binding upon all Occupants
and Permittees.
(b) Access: Right of Entry. For the purpose of performing any act reasonably
related to the performance by Operator of its responsibilities or the exercise by Operator of its
rights hereunder, Operator and the agents or employees of Operator shall have the right after
reasonable notice (except in cases of regular, routine maintenance and emergencies where no
notice shall be necessary) to enter any Lot, whether or not within the Common Areas. In
addition, Operator and its authorized agents, representatives, assignees and employees, and the
City and its authorized representatives shall have the right to enter upon and inspect any Lot and
the exterior and interior of any Building or Building Appurtenances for the purpose of
ascertaining whether or not the provisions of this Declaration have been or are being complied
with, and as otherwise deemed reasonably necessary by Operator (including without limitation,
with respect to reading of utility meters and the making of repairs herein permitted) and take
whatever corrective action may be deemed necessary or proper, consistent with the provisions of
this Declaration, and shall not be deemed guilty of or liable for trespass by reason of such entry.
However, nothing herein shall be construed to impose any obligation upon Operator to maintain
or repair any portion of any Lot or Improvement thereon which is to be maintained or repaired
by the Owner thereof. Each Owner shall permit access to such Owner's Lot and the exterior and
interior of any Building or Building Appurtenances on such Owner's Lot by any Person
authorized by Operator, as Operator may deem reasonably necessary, to perform any act
reasonably related to the performance by Operator of its responsibilities or rights hereunder.
Each Owner hereby waives all claims for damages for any injury or inconvenience to or
interference with Owner's business, any loss of occupancy or quiet enjoyment of the Building or
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Lot, any claim of trespass or any other loss occasioned by Operator's entry upon a Lot or
Improvement thereon pursuant to this paragraph.
ARTICLE 6
PERMITTED USES
6.1 Permitted Uses. Unless otherwise specifically prohibited herein, the Lots may be
put to any use permitted by applicable City zoning and land use regulations, provided such use is
performed and carried out entirely within a Building that is so designed and constructed that the
operations and uses comply with: (a) all Laws and (b) the provisions of this Declaration
(including, without limitation, as to parking) and any other declaration or covenants to which the
Property is subject. If applicable Law is less restrictive than the provisions of this Declaration,
the more restrictive provisions shall apply.
6.2 Prohibited Uses Generally. Without limiting the provisions of Section 6.1 above
or any other provision of this Article 6, no Lot shall be used for any of the following activities or
purposes:
(a) Massage parlor, adult bookstore, or the production, sale or exhibition of
pornographic material; V!
(b) Junk yard;
(c) Commercial excavation of building or construction materials, except in the
usual course of construction of Improvements on a Lot;
(d) Distillation of bones;
(e) Dumping, disposal, incinerations, or reduction of garbage, sewage, offal,
dead animals, or refuse;
(f) Stockyards or slaughter of animals;
(g) Refining of petroleum or of its products;
(h) Smelting of iron, tin, zinc, or other ores;
(i) Jails and honor farms;
(j) Labor camps and migrant worker camps;
(k) Petroleum storage yards;
(1) Munitions related manufacturing and storage activities;
(m) Outdoor carnivals and circuses (which shall not be deemed to include
occasional promotional events related to the business being conducted in the Buildings
constructed on any Lot);
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(n) Penny arcades or amusement centers, provided that
entertainment/amusement venues and other similar retail/entertainment uses may be permitted
with the Operator's prior written approval;
(o) No industrial operations shall be performed or carried out except entirely
within a building in such manner that the enclosed operations and uses do not cause or produce a
nuisance to other portions of the Property, such as, but not limited to, vibration, sound,
electromechanical disturbance and radiation, air or water pollution, dust or emission of odors,
toxic or nontoxic matter;
(p) Residential dwelling units of all types;
(q) Trailer courts and mobile home parks;
(r) Cemeteries;
(s) Any use which, in the Operator's sole and absolute discretion, is
considered to be objectionable as an intrusion into the environment of sound, odor, visual effect
or physical impact or that will disturb or tend to disturb the other Owners or Occupants or their
Permittees in the Project;
(t) Any use that produces intense glare or heat, unless such use is performed
only within an enclosed or screened area in a manner such that the glare or heat emitted will not
be discernible from any property line of the Lot;
(u) Any use or operation that results in a discharge or release of Hazardous
• Materials on or under the surface of a Lot or into the surface or ground water of the Project,
unless such discharge or release is in compliance with all applicable Laws relating to Hazardous
Materials;
(v) Any use or operation that results in air omissions of pollutants or
contaminants unless such emissions are in compliance with all applicable laws relating to
Hazardous Materials;
(w) Any emission of odorous, noxious, caustic or corrosive matter or gas,
whether toxic or non-toxic;
(x) Any unusual litter, dust, dirt or debris, except as generated during
construction of Improvements;
(y) Any unusual firing, explosion or other damaging or dangerous hazard,
including, but not limited to, storage, display or sale of explosives or fireworks;
(z) Any drilling for, excavation, refining and/or removal of earth materials,
oil, gas, hydrocarbon substance, water, geothermal steam or any other subsurface substance of
any nature whatsoever, except as part of normal grading operations in connection with
construction of approved Improvements;
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(aa) Any dumping, disposal, incineration or reduction of garbage or reuse of
the same, other than handling or reducing such garbage in a reasonably clean and sanitary
manner;
(bb) Any auction, public sale or other auction house operation;
(cc) Any display or sale of merchandise or any storage or placement of
merchandise, portable signs or other objects including temporary containers, belonging to an
Owner or Occupant of the Project outside the defined exterior walls, roof and permanent
doorways of any Building or through the windows of any Building; or
(dd) Automobile sales, maintenance, cleaning or repair or any uses related
thereto (including, without limitation, the washing of automobiles by Occupants).
6.3 Nuisances. No Owner or Occupant shall create or permit any public or private
nuisance on any portion of the Project. All incinerators or other equipment for the storage or
disposal of trash, garbage or refuse shall be kept in a clean and sanitary condition. No odors
shall be permitted to arise therefrom so as to render any Lot or portion thereof unsanitary,
unsightly, offensive or detrimental to any property in the vicinity or to the Occupants thereof..
No use or operation shall be conducted in the Project which is noxious, offensive, unsightly or
which may interfere with the quiet enjoyment of other Owners and Occupants. r-»v
6.4 Necessary Permits. Prior to commencement of any operation or use upon a Lot,
each Owner or Occupant, shall demonstrate to the Committee that Owner has obtained all
necessary permits for the operation or use proposed by such party. ;
6.5 Other Operations and Uses. Operations and uses which are neither specifically
prohibited nor specifically authorized by this Declaration may be permitted in a specific case if
an Application containing operational plans and specifications are submitted to and approved in
writing by the Committee. Approval or disapproval of and compatibility with such operational
plans and specifications shall be based upon the effect of such proposed operations or uses on the
balance of the Project and the Owners and Occupants thereof, but shall be in the sole discretion
of the Committee. Prior to submitting an application to and seeking approval from the City, or
any other governmental or quasi-governmental agency having jurisdiction over the Project, of
any permit or approval (or any amendment or modification to any previously approved permit or
approval) relating to the use, development and construction of Improvements upon any Lot not
previously approved and/or exempted from the provisions of this Declaration, the Owner or
Occupant shall submit the same to the Committee in accordance with this Article 6.
6.6 Laws. No Owner or Occupant shall permit any activity, use or operation on any
portion of the Project in violation of any Law or any parking requirements or restrictions herein
contained. Each Owner and Occupant shall, upon written notice from Declarant, or the Operator,
discontinue any use which is finally determined by any governmental entity having such
jurisdiction to be a violation of any Law or which is determined by the Operator to be a violation
of parking requirements herein contained. Each Owner and Occupant shall, immediately upon
receipt from any governmental entity of an alleged violation of any Law, provide a copy of such
25
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allegation to the Operator, notwithstanding such party's belief that meritorious defenses to such
allegations exist.
6.7 Access. Declarant, the Operator, and their respective agents, including the
Committee, shall have the right, but not the obligation, to enter upon a Lot as provided in Section
12.7 below, for the purpose of inspecting the same, in order to assure compliance with all
applicable Laws. In addition, the Operator may require disclosure of any applicable information
relating to the applicable Laws or permits and any other evidence necessary to assure Declarant
and the Operator of an Owner's compliance with said Laws.
ARTICLE 7
REGULATION OF IMPROVEMENTS
7.1 Approval of Application Required. Subject to Section 7.11 below, no
Improvement shall be constructed, reconstructed, rebuilt, erected, placed, altered, used,
maintained or permitted to remain in the Project (i) unless the Improvement and intended use
thereof conforms with all applicable Laws and this Declaration; and (ii) until plans,.
specifications and other documentation required by the Committee (or as otherwise specified in
any Design Guidelines adopted by the Committee) for the Improvement and the intended use
thereof ("Application") have been submitted to and approved in writing by the Committee.
Each Application, including all exhibits and supporting materials and documentation, must be
submitted in duplicate. Such Applications shall be in such form and shall contain such
information as may be required by the Committee, but shall in any event include the following:
(a) A site development plan of the Lot showing the nature, grading scheme,
kind, shape, composition, and location of all structures with respect to the particular Lot
(including proposed front, rear and side setback lines), and with respect to structures on
adjoining Lots, and the number and location of all parking spaces and driveways on the Lot;
(b) A landscaping plan for the particular Lot;
(c) A plan for the location of signs and lighting;
(d) A building elevation plan showing dimensions, materials and exterior
color scheme in no less detail than required by the appropriate governmental authority for the
issuance of a building permit;
(e) Materials board showing samples of all exterior materials;
(f) Any plans pertaining to any increase to or change in use of any interior
square footage of any Building in the Project; and
(g) A chart showing the following with respect to the uses and required
number of parking spaces as set forth in Chapter 21.44 of the Carlsbad Municipal Code: (i) the
proposed use(s) for each Building located on the Lot which is the subject of the Application and
the current uses of Building located on the other Lots (excluding Lot 1), (ii) the total square
footage being utilized in each Building for each of the uses described under clause (i) above,
26
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(iii) the total number of parking spaces required to accommodate all of such uses (in the
quantities set forth in clause (ii) above) based on the parking ratios set forth in Chapter 21.44 of
the Carlsbad Municipal Code.
Material changes to previously approved plans must be similarly submitted to and
approved by the Committee.
7.2 Filing Fee. As a means of defraying its costs and expenses, the Committee may
institute and require that a reasonable filing and review fee ("Review Fee") accompany an
Application. The initial schedule of Review Fees is set forth in the following schedule:
(a) If an Application is prepared by an architect, the Review Fee shall be Two
Hundred Fifty Dollars ($250) per building per Lot.
(b) hi all other cases, the Review Fee shall be Five Hundred Dollars ($500)
per Building per Lot.
(c) If an Application is resubmitted, the Committee may require an additional
Review Fee in an amount not to exceed One Hundred Dollars ($100) for each resubmission.
(d) The schedule of Review Fees may be modified from time to time by the
Committee to reflect increased costs and expenses or changed circumstances, such as, but not
limited to, inflation.
7.3 Basis for Disapproval. The Committee shall disapprove an Application submitted
to it in the event any part of the Application: (a) does not demonstrate that there will be an
adequate distribution of parking spaces for the Project; or (b) demonstrates that the number of
parking spaces required to accommodate the combined proportion of uses (based on the parking
ratios required by Chapter 21.44 of the Carlsbad Municipal Code) shall exceed 225 parking
spaces; or (c) is not in accordance with this Declaration (or any other declaration or similar
agreement or instrument to which the Property, is subject), and any Design Guidelines or other
requirements adopted by the Committee; or (d) is incomplete; or (e) is not in compliance with the
applicable governmental approvals and regulations for the Project, including without limitation,
the approved site plan for the Project, or other City development standards and reputations
applicable to the Property; or (f) is deemed by the Committee to be contrary to the best interests
of the Project or the Owners; or (g) any combination of the foregoing. The Committee shall not
unreasonably withhold its approval of an Application submitted to it, but may condition its
approval on the satisfaction of one or more conditions set forth in writing. In this regard, the
Committee may base its approval or disapproval on criteria which may include, but are not
limited to, the following: (i) the adequacy of the Building locations and dimensions on the Lot;
(ii) the adequacy of the parking to be provided; (iii) conformity and harmony of external design
with neighboring structures; (iv) effect of location and proposed use of proposed Improvements
on neighboring Lots and the types of operations and uses thereof; (v) relation of topography,
grade and finish ground elevation of the Lot being improved to that of neighboring Lots;
(vi) proper facing of main elevation with respect to nearby streets and other buildings;
(vii) adequacy of screening trash facilities and mechanical, air conditioning or other rooftop
installations; (viii) adequacy of landscaping; and (ix) conformity of the Application to the
27
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purpose and general plan and intent of this Declaration. No Application shall be approved which
does not provide for the underground installation of all utility services. The Committee may
condition its approval of an Application on such changes therein as it deems appropriate such as,
and without limitation, the approval of such Improvements by a holder of an easement which
may be impaired thereby or upon approval of any such Improvements by the appropriate
governmental entity. Any Committee approval conditioned upon the approval by a
governmental entity shall not imply the Association is enforcing any government codes or
regulations, nor shall the failure to make such conditional approval imply that any such
governmental entity approval is not required. In reviewing or approving any Application, the
Committee shall not be responsible for determining compliance with any governmental land use
or building construction ordinances or requirements.
7.4 Result of Inaction. The Committee shall approve or disapprove an Application
within sixty (60) days after receipt of a complete Application and the Review Fee. If the
Committee fails either to approve or disapprove an Application within such sixty (60) day
period, then it shall be conclusively presumed that the Committee has disapproved the
Application, unless the Applicant has delivered to .the Committee, within fifteen (15) days after
the expiration of the sixty (60) day period, a notice in writing setting forth a date of initial
submittal of the complete Application to the Committee and the fact that no approval or -!
disapproval has been given as of the date of such notice. If the Committee thereafter fails to
either approve or disapprove the Application on or before the fifteenth (15th) day after the :r?
Committee's receipt of such notice, the provisions of this Declaration requiring approval of such
Application shall be deemed to have been waived by the Committee with respect to such
Improvements; provided, however, that such waiver shall not be deemed to be a waiver of any
other covenant, condition or restriction provided herein. One (1) set of the materials comprising
the Application shall, with the approval or disapproval of the Committee endorsed thereon, be
returned to the Owner submitting it, and the other set shall be retained by the Committee for its
permanent files. In the case of a conditional approval of an Application, the written conditions
shall accompany the Committee's written conditional approval.
7.5 Proceeding With Work. Upon the Committee's approval and receipt of an
Application pursuant to this Article 7 (and upon receipt by the Owner of all other required
approvals), the Owner to whom the approval is granted and delivered, shall, as soon as
practicable, satisfy all conditions thereof (if any) and diligently proceed with the commencement
and completion of all approved construction, refinishing, alterations, excavations and
landscaping so that no Improvement remains in a partly-finished condition any longer than
reasonably necessary for completion thereof. In addition, each Owner shall cause all work to be
as nondisruptive as practicable to the Project and the guests, invitees, tenants, employees and
Owners who use the Project. Each Owner shall disrupt traffic flow and parking as little as
possible during construction and shall clean up daily any construction debris to the extent
reasonably practicable. In all cases, subject to delays in the Owner's receipt of governmental
approvals for plans approved by the Committee, work shall be commenced within six (6) months
following the date of such approval. If work is not commenced within six (6) months following
the date of such approval, subject to delays in the Owner's receipt of governmental approvals for
plans approved by the Committee, then the approval previously given pursuant to this Article 7
shall be deemed revoked; provided, however, upon written request made prior to the expiration
28
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of said six (6) month period, the Committee may, in its sole, absolute and unfettered discretion,
extend the time for commencing work.
7.6 Completion of Work. Construction, refinishing, alteration or excavation of any
Improvements previously approved under this Article 7 shall be expeditiously completed and
shall in all instances be completed within one (1) year following the commencement thereof,
except for so long as such completion is rendered impossible or would result in hardship due to
action of the elements, fire or other casualty, war, riot, labor dispute, inability to procure or
general shortage of labor or material in the normal channels of trade, delay in transportation,
delay in inspections, governmental action or inaction or moratorium or any other cause beyond
the reasonable control of the Owner so obligated, whether similar or dissimilar to the foregoing,
financial inability excepted. Failure to comply with this Section 7.6 shall constitute a breach of
this Declaration and subject the defaulting Owner or Owners to all enforcement procedures set
forth in this Declaration or any other remedies provided by law or in equity. Upon completion of
construction of any Improvement, one complete set of as-built plans and copies of all certificates
of occupancy shall be submitted to and maintained by the Committee.
7.7 Inspection of Work. The Committee or its duly authorized representative may at
any time inspect any work for which approval of plans is required under this Article 7. The
Committee shall have the authority to require the Owner to take such action as may be necessary
to remedy the noncompliance.
7.8 Estoppel Certificate. The Committee shall deliver to any Owner an estoppel
certificate (as described below) within thirty (30) days following receipt of a written request
therefor. If the Committee does not have an as-built survey of the Owner's Lot in its files, then
any such request for an estoppel certificate shall be accompanied by an ALTA map of survey or
a certified as-built survey of the Owner's Lot. The estoppel certificate required pursuant to this
Section 7.8 shall certify that as of the date of the estoppel certificate either (a) all Improvements
made or work done on or within the Owner's Lot comply with this Declaration; or (b) such
Improvements or work do not so comply, in which event the estoppel certificate shall identify the
Improvements which do not comply and shall set forth the cause or causes for such
noncompliance. Any existing or prospective Owner, Occupant or Mortgagee in good faith for
value shall be entitled to rely on the estoppel certificate with respect to the matters set forth
therein, such matters being conclusive as between the Committee and all such subsequent parties
in interest.
7.9 Indemnity and Limitation of Liability. Neither Declarant, the Association, the
Operator nor the Committee, nor any member of the Board or the Committee, nor any agents,
employees, members or contractors of Declarant, the Association, the Members, Occupants, the
Operator or the Committee (individually or collectively, "Indemnitee") shall be liable for any
liability, damage, loss, cost, expense or prejudice suffered, incurred or claimed by any Owner,
Occupant or other person (an "Applicant") who submits an Application, or by any other Person
(including any other Owner or Occupant); and each Applicant who submits an Application shall
forever hold each and every Indemnitee harmless from and against any liability, damage, loss,
cost, expense or prejudice suffered, incurred or claimed by such Applicant, and shall forever
indemnify, defend, protect and hold each Indemnitee harmless for any liability, damage, loss,
cost, expense or prejudice suffered, incurred or claimed by any other Person (including any other
29
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24202
Owner or Occupant), arising from, our of or in connection with (a) any defects in any plans,
drawings, specifications or other documentation submitted in any Application, revised or
approved in accordance with this Declaration, or for any structural or other defects in any work
done according to such plans, drawings, specifications or other documentation; (b) the approval
or disapproval of any Application, whether or not defective; (c) the construction or performance
of any work, whether or not constructed or performed pursuant to an approved Application;
(d) the development of any Lot within the Project; (e) the execution and filing of an estoppel
certificate pursuant to Section 7.8 above, whether or not the facts therein are correct, provided
that the Committee has acted in good faith in issuing such estoppel certificate on the basis of
such information as maybe possessed by it; or (f) any combination of the foregoing.
7.10 Improvement Standards and Limitations. All standards and limitations contained
in this Declaration (and any other declaration or similar instrument or agreement to which the
Property is subject) supplement the controls established by applicable zoning, land use-related
entitlements and approvals granted for development of the Project and applicable building, fire
and other governmental ordinances, codes, rules and regulations; and of the foregoing, the more
restrictive shall apply. Each Owner and Occupant is responsible for identifying and conforming
with all Laws.
7.11 Certain Improvements Exempt from Application. Notwithstanding anything in
this Declaration to the contrary (or which may be interpreted as being to the contrary), the
following Improvements shall be exempt from the provisions of this Article 7 and are not
required to be the subject of an Application pursuant to this Article 7: (i) Improvements existing
or under construction on the date of recordation of this Declaration; and (ii) Improvements
within the interior of a Building such as tenant improvements, lobbies and other interior space
which do not increase the square footage or change the use thereof or otherwise cause such
Building to be in violation of any restrictions related to parking; and (iii) the repair, restoration
and/or reconstruction of those Improvements identified in (i) and (ii) above in the event of partial
or total destruction or damage thereof which is not caused by Owner, provided the same are
repaired, restored and/or reconstructed pursuant to plans and specifications that are consistent
with the Improvements as existed prior to such destruction or damage.
7.12 Disclosure and Waiver of Conflict of Interest. Board and Committee members
may be elected by, appointed by, affiliated with or employed by one or more Owners. If an
Owner submits an Application to the Committee for approval, Committee members appointed by
such Owner may have a conflict of interest in rendering their decisions. No Owner nor any
Board or Committee member affiliated with such Owner shall have any liability to any other
Owner, Occupant or other Person as a result of decisions which may benefit such Owner
rendered in good faith by the Board, Committee or any Board or Committee member, and each
Owner hereby waives any claim of liability against each other Owner, the Board, the Committee
or any Board or Committee member, based upon such conflict of interest.
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ARTICLE 8
OPERATIONS GENERALLY
8.1 Slope and Drainage Use. The Owner of each Lot will permit free access by
Owners of adjacent or adjoining Lots and by Declarant to slopes or drainageways located on the
Owner's Lot which affect such adjacent or adjoining Lots when such access is required for the
maintenance of permanent stabilization on said slopes, or maintenance of the drainage facilities
for the protection and use of property other than the Lot on which the slope or drainageway is
located. No Owner shall in any way interfere with or obstruct the established surface drainage
pattern over the Owner's Lot from adjoining or other Lots, and each Owner shall make adequate
provisions for proper drainage in the event it is necessary to change the established drainage over
the Owner's Lot. For the purpose of this paragraph, "established" drainage is defined as the
drainage patterns existing as of the date of this Declaration.
8.2 Shared Parking: Parking Areas.
(a) The Owners intend that, except as otherwise expressly provided in this
Declaration, all parking required under applicable Law for each of the Lots shall be satisfied by
parking spaces located on the Project, which shall be available for the Owners, Occupants and
Permittees of the Lots on a non-exclusive, in common basis, except that (i) in no event shall any
Owner, Occupant or Permittee make use, at any time, of more than the Allocated Parking Spaces
for the applicable Lot for such Owner, Occupant or Permittee (but provided that any unallocated
parking spaces may also be used by such Owner, Occupant or Permittee from time to time) and
(ii) limited reserved parking may be established by the Operator subject to and in accordance
with the terms of this Declaration. The parking spaces located in the project shall be initially
allocated as set forth on Exhibit "D" attached hereto, with 24 spaces to remain unallocated as of
the date hereof, which unallocated spaces shall be available for the Owners, Occupants and
Permittees of the Lots on a non-exclusive, in common basis, provided, that the Operator may in
its sole and unfettered discretion allocate such spaces and all other spaces in the future in
accordance with the immediately following sentence. From time to time, upon the change in use
of or new construction upon the Lots in the Project, the Operator may, in its sole and unfettered
discretion, reallocate all parking spaces in the Project (including, without limitation, those
currently allocated to any Lot) in keeping with the best interests of the Project, including,
without limitation, compliance with the requirements of the Carlsbad Municipal Code and other
applicable Laws. In the event of any such reallocation, the Operator shall promptly distribute to
each of the Owners a revised Exhibit "D" setting forth such new allocations. Notwithstanding
the foregoing, Operator shall not reduce the number of spaces allocated to any Lot unless there is
a reduction in the Rentable Area of the Improvements thereon or there is a change in the use
thereof requiring fewer spaces and in any event such reduction shall not reduce the number of
spaces below that required by law.
(b) The Common Parking Areas not designated or subsequently designated as
Reserved Parking Spaces shall be available for use by the Owners, Occupants and other
Permittees of all of the Lots. Use of Common Parking Areas shall be subject to any Rules and
Regulations as may be adopted from time to time by the Operator pursuant to Section 9.3 below.
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(c) All portions of the Common Parking Areas shall be non-exclusive among
the Owners, Occupants and Permittees entitled to use such facilities except that the Operator
shall have the right to designate from time to time portions of the Common Parking Areas as
reserved for the exclusive use and enjoyment of one or more Owners and their respective
Occupants and Permittees (herein "Reserved Parking Spaces"), provided all Reserved Parking
Spaces allocated to any Owner shall be deemed to be part of the total Allocated Parking Spaces
which are allocated to such Owner and provided further that in granting such Reserved Parking
Spaces there shall always remain available to all other Owners and Occupants such Owners' and
Occupants' respective Allocated Parking Spaces (both reserved and unreserved). Except with
respect to any Reserved Parking Spaces and as expressly approved by Operator, no Owner shall
allow any of its Occupants or Permittees to (i) mark or designate any portion of the Common
Parking Areas, (ii) establish signs thereon (iii) chain or block off any portion of the Common
Parking Areas for the exclusive use of any Occupants or Permittees or (iv) utilize more parking
spaces than its Allocated Parking Spaces. All Owners shall cause all Occupants and Permittees
to park their vehicles only in those portions of the Common Parking Areas which are designated
by the Operator for that purpose. Each Owner assumes responsibility for compliance by its
Occupants and Permittees with each of the Governing Documents, including, without limitation,
all of the terms and provisions of this Declaration (including, without limitation, those pertaining
to parking provisions contained herein and rules promulgated from time to time by Association
pursuant hereto). Each Owner authorizes the Operator to cause to be towed away any vehicle
belonging to any Owner, Occupant or Permittee parking in violation of these provisions, and/or
to attach violation stickers or notices to such vehicle. If the Operator elects, or is required by the
City, to limit or control parking by Occupants and Permittees of the Property, whether by
validation of parking tickets, parking meters or any other method of assessment, or to undertake
any program for bus, rapid transit, free or reduced cost transportation, each Owner agrees to
participate in such validation, assessment or transportation program under such reasonable Rules
and Regulations as are from time to time established by the Operator with respect thereto.
Nothing contained herein shall be deemed to create liability upon Declarant, the Association or
the Operator for any damage to motor vehicles of any Owner, Occupant or Permittee or from
loss of property with regard to such motor vehicles.
(d) No commercial truck (which shall not include vans or standard pickup
trucks) is permitted to be parked on any Lot. Notwithstanding the immediately preceding
sentence, commercial trucks may park for the purpose of loading and unloading on all Lots;
provided, however, reasonable restrictions concerning permitted times for parking, loading and
unloading commercial trucks, which may be applicable to one or more Lots, may be adopted by
the Operator.
8.3 Storage and Loading Areas. Subject to Committee approval, which may be
withheld in its sole, absolute and unfettered discretion:
(a) No trucks (other than standard pickup trucks), shall be parked in any area
on a Lot (including any parking areas), except inside a closed Building or on a temporary basis
behind a Committee approved visual barrier which screens such areas from the view of adjoining
Lots and public streets. No outdoor storage of materials, supplies or equipment, including
temporary containers, shall occur onsite unless required by the Fire Chief of the City. When
such outdoor storage is required by the Fire Chief, the applicable Owner(s) shall submit and
32
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obtain the approval of the Fire Chief and the City's Planning Director of an "Outdoor Storage
Plan" and such Owner(s) shall thereafter comply with any such plan.
(b) Loading areas and docks shall be set back and screened to minimize the
visual and noise effects from the street. All loading areas shall be hidden from view from public
streets by visual barriers approved by the Committee. Notwithstanding the foregoing, it may not
be practical or feasible for all loading areas and docks to comply with this restriction, including
as to any existing improvements, in which event, as to those loading areas and docks, the
Committee shall have the right to designate hours for loading and unloading and the rules
reasonably necessary to minimize the visual and noise effects thereof.
8.4 Inspection. Declarant, members of the Operator, members of the Committee and
their authorized representatives may from time to time, at any reasonable hours, enter upon and
inspect any Lot, or any portion thereof, or Improvements thereon, to ascertain compliance with
this Declaration and other Project Documents, but without obligation to do so or liability therefor
provided, however, no such entry shall be permitted to inspect the interior or exterior of any
building improvements without at least five (S)-business days' prior written notice and a
statement for the reasons such entry is permitted or required under the Project Documents.
8.5 Division of Land. No Lot shall be subdivided or resubdivided without the prior
written approval of Declarant (or the Operator,; if there is no Declarant) which may be withheld
in its sole, absolute and unfettered discretion and all other required government approvals. If a
subdivision or resubdivision of a Lot is so approved, each of the Lots created as a result of the
subdivision or resubdivision shall be subject to;this Declaration and the other Project Documents.
8.6 Hazardous Materials. Without limiting the provisions of Section 6.5 above, each
Owner with respect to the Lot(s) owned by such Owner covenants to do as follows:
(a) At all times and in all respects to comply, and cause all of its Occupants to
comply, with all Environmental Laws regarding the use, storage and disposal of Hazardous
Materials.
(b) Each Owner shall cause its Occupants and Permittees to procure, maintain
in effect and comply with all conditions of any and all permits, licenses, and other governmental
and regulatory approvals required for its or its use of the Project, including, without limitation,
discharge of (appropriately treated) materials or wastes into or through any sanitary sewer
serving the Project. Except as discharged into the sanitary sewer in strict accordance and
conformity with all applicable Environmental Laws, no Person shall cause any Hazardous
Materials removed from the Project to be removed and transported except solely by duly licensed
haulers to duly licensed facilities for final disposal of such materials and wastes. Each Owner,
Occupant and user shall in all respects handle, treat, deal with and manage any and all Hazardous
Materials in, on, under or about the Project in total conformity with all applicable Environmental
Laws and prudent industry practices regarding management of such Hazardous Materials.
8.7 Payment of Taxes. Liens. Each Owner shall pay or cause to be paid prior to
delinquency the Real Property Taxes and Assessments and all other public, governmental,
quasi-public or quasi-governmental charges which are or may become a Hen upon such Owner's
33
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Lot(s) ("Impositions"), and all other liens or charges which may be or become superior to this
Declaration or any amendments thereto. Each Owner shall have the right, at its own cost and
expense, and in its own name, to contest or protest or seek to have reviewed, reduced, equalized
or abated any Imposition levied upon its Lot(s) by first paying such Imposition and thereafter
filing a claim for refund or pursuing such other remedy as may then be available under and in
accordance with California law. Upon final determination of any such proceeding, the protesting
Owner shall pay the Imposition for which it is responsible pursuant to this Section 8.7 as they are
finally determined and all penalties, interest, costs and expense which may thereupon be due or
have resulted therefrom.
8.8 Maintenance of Lots. Each Owner shall cause to be maintained and repaired in
good order, condition and repair as provided in Section 13.1 below, the exterior of the
Building(s) and all Building Appurtenances and other Improvements located upon such Owner's
Lot within the Building Area of such Lot. Each Owner of a Lot shall cause all graffiti, rubbish,
debris and unsightly material and objects of any kind to be regularly removed and not allowed to
accumulate on or in the areas and Improvements referred to above. Each Owner shall cause their
respective Lot to be landscaped in accordance with the landscaping requirements set forth on
Exhibit "E" attached hereto (as the same may be modified by the Operator from time to time)
and any additional requirements set forth in the Guidelines. Each Owner shall cause their
respective Lot to comply with any and all requirements contained in the Storm Water i; ;
Management Plan, to the extent that such requirements are applicable to such Owner's Lot.
8.9 Outside Installations. No exterior radio antenna, "CB" antenna, television
antenna, satellite dish, earth receiving station, or other antenna of any type shall be erected or
maintained within the Property except as authorized by the City and the Committee. All rooftop
equipment (including without limitation satellite dishes, antennae and other communication
devices, ventilators, HVAC components or solar panels) must be related to the operation of the
business in the Improvements located on the Lot, and must be screened from public view within
the Project, and from any streets adjacent to the Project. The Operator is hereby authorized to
enforce the restrictions of this Section 8.9 by any reasonable means, including without limitation,
removing any rooftop equipment in violation of this Section 8.9. The Owner of the Lot with the
rooftop equipment in violation of this Section 8.9 shall pay all costs of the enforcement actions
as a Reimbursement Assessment.
8.10 Prohibition of Outdoor Storage and Displays. Except as expressly approved in
writing by the Committee or as otherwise permitted in a Supplemental Declaration, no Owner, or
any Occupant or Permittee of any Owner, shall store or display any item whatsoever anywhere
on the Property, except completely within the Owner's Building or other enclosure approved in
accordance with Article 7 above.
8.11 Leases. This Declaration is intended to be binding upon all lessees and tenants of
any Lot, or portion thereof. To ensure the binding effect on tenants and lessees, each Owner
agrees from and after the date hereof, by acceptance of the deed or ground lease by which such
Owner acquired title or a leasehold interest in a Lot, not to rent or lease all or any portion of such
Owner's Lot to any Person, except pursuant to a written lease or rental agreement expressly
referring to this Declaration pursuant to which (i) the lessee or tenant accepts the leasehold estate
subject to this Declaration, (ii) the lessee or tenant acknowledges receipt of a copy of this
34
~LOSAl:89449.v3
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Declaration and any Guidelines and Rules and Regulations then in effect and agrees to perform
and comply with the restrictions herein or to permit entry and other actions by the lessor for the
purpose of performing and complying with these restrictions and (iii) the lessee or tenant
expressly agrees to the terms of the release set forth in Article 11 below.
8.12 Reassessment for Construction. In the event that any Owner or Occupant shall
construct any-Improvements upon the Lot owned or occupied by such Owner or Occupant, and
such construction shall cause the reassessment of the Common Area or give rise to any required
Improvements being constructed upon the Common Area under any Law, then the constructing
Owner or Occupant shall be responsible for reimbursing the Association for any costs incurred
with respect to such reassessment or required Improvement and such costs may be charged to
such Owner or Occupant as a Special Assessment pursuant to Section 3.7 above.
ARTICLE 9
COMMON AREA
9.1 Use. Subject to the provisions of this Article 9 and such other provisions of this
Declaration regarding restrictions upon use, the Common Areas shall be used.solely for the
purposes specified in this Article 9. In addition, no Owner or Occupant shall use or permit to be
used the Common Areas for any use other than the following:
(a) Parking motor vehicles, and pedestrian and vehicular ingress and egress
by Occupants and their Permittees, to and from Buildings, the Common Parking Areas and
adjacent public streets;
(b) Parking stalls, sidewalks, walls, ramps, driveways, lanes, curbs, gutters,
seating areas, flagpoles, bike racks, kiosks, automatic teller machines, bus stops and similar
facilities for accommodating public transportation, traffic control areas, signals, traffic islands,
landscaped areas, traffic and parking lighting facilities and monument signs with appropriate
underground electrical connections, and all things incidental thereto, all as approved by the
Committee and only in locations approved by the Committee;
(c) Public utility installations serving Buildings or the Common Areas;
(d) tigress and egress of delivery and service vehicles to and from the Project
or any portion thereof and adjacent public streets, and parking thereof only in unloading and
truck loading and unloading areas;
v (e) Delivery of goods, wares, merchandise and providing services to
Occupants of the Project;
(f) Perimeter walls and fences;
(g) If required by law, recycling facilities or pickup points, the location of
which are approved by the Committee; and
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(h) Lighting standards, landscaping, and any other Common Area
Improvements as may be required by Law or desired by the Association. Owners may also
install and maintain security and surveillance devices upon the Common Areas, if any, located
within their respective Lots, subject to compliance with all terms of this Declaration related
thereto;
(i) Lunch areas are presently in existence; and
(j) Installation of emergency generator equipment, telecommunications
equipment or similar facilities or structures in the Common Areas serving the Occupants of one
or more Buildings, subject to approval of the location and design by the Committee.
The Common Areas shall be used reasonably for the foregoing purposes so as not to
interfere with the parking to be available to satisfy all governmental requirements for parking for
Buildings within the Project.
9.2 Modification of Common Areas. The existing design of the Common Areas
within the Project is as shown on the Site Plan. The Operator shall have the right to relocate or
reconfigure the Common Areas provided that: (i) any direct costs incurred in connection with
such relocation shall be paid by the Association; (ii) the amount of parking available on the
Property within reasonable proximity to a subject Lot shall not be less than that required by the
City or pursuant to agreement between the Association and any Owner affected by such
relocation or reconfiguration; (iii) no Lot shall be deprived of reasonable access for ingress and
egress from the public streets abutting or within the Property to such Lot; (iv) the locations and
size of all employee eating areas, parking areas and landscaped areas within Lot 1 shall not be
altered, reduced, fenced or divided, in any case, in a manner which would preclude the equal use
by all of the Owners and Occupants of the other Lots; (v) Declarant's approval has been obtained
and (vi) modifications have been approved by the City of Carlsbad.
9.3 Parking Regulations. Occupants within the Project will have widely varying
parking requirements. To ensure Common Parking Areas and Reserved Parking Spaces are used
in the most efficient manner and in the best interest of all Occupants entitled to the use thereof,
the Operator may adopt from time to time Rules and Regulations governing the use of the
Common Parking Areas and Reserved Parking Spaces; provided, however, that no such Rule or
Regulation shall dimmish the parking rights of any Occupant under any lease existing at the time
such rule or regulation is adopted. No vehicle shall be parked on a Lot other than within striped
parking spaces thereon, within a Building or within a storage area prepared in accordance with
this Declaration, except temporarily while loading or unloading at a doorway or loading area of a
Building. No Person shall store or keep anywhere on a Lot or any public street abutting such
Lot, (i) any inoperable commercial vehicle, dump truck, cement mixer truck, oil or gas truck, or
(ii) any operable or inoperable camping trailer, boat, aircraft, mobile home, recreational vehicle,
motor home or any other similar vehicle except within an enclosed building or behind a visual
barrier, prepared in accordance with Article 7 above, screening the sight of such vehicles from
the building pads on the other Lots within the Property. No Person shall conduct repairs,
cleaning, restorations, or painting of any motor vehicle, boat, trailer, aircraft or other vehicle
upon any portion of the Property except wholly within an enclosed Building. No parking shall
36
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24209
be permitted which may obstruct free traffic flow, constitute a nuisance, or otherwise create a
safety hazard.
9.4 Construction and Repair. All construction, alteration or repair work requiring
workers to perform activity or to use or locate materials, tools or equipment (such as, but not
limited to, compressors, sawhorses, tool boxes, scaffolds, ladders and barricades) in the Common
Areas during the course of performing such work shall be subject to the prior written approval of
the Operator and shall be accomplished in the most expeditious and speedy manner consistent
with ongoing business operations within the Project. The Owner or Occupant undertaking such
work shall take all measures necessary to minimize any disruption or inconvenience caused by
such work. Such work shall be accomplished by the Owner or Occupant undertaking it in a
reasonable manner so that any damage or adverse effect which might be caused by such work to
any other Owner or Occupant or to any Lot (including the Lot on which the work is being
accomplished) is minimized. The Owner or Occupant undertaking such work shall repair at its
own cost any and all damage caused by such work and shall restore the affected portion of any
Lot (including the Lot upon which such work is performed) to a condition which is equal to or
better than the condition which existed prior to the beginning of such work. In addition, the
Owner or Occupant undertaking such work shall pay all costs and expenses associated therewith
and shall indemnify, protect, defend and hold Declarant, the Operator, the Association and all
other Owners and Occupants harmless from all liabilities, damages, losses, costs, expenses or
claims arising out of, in connection with or attributable to the performance of such work. Except
in cases of emergency, all such work shall be undertaken only after giving the Operator ten (10)
days prior written notice of the work to be undertaken, the scope and nature of the work, the
duration of the work and the area in which the work is to be performed. Notwithstanding the
foregoing, construction, alteration or repair work to be accomplished outside the Common Areas
(i.e., within a Building or Building Area on a Lot) maybe made without the consent of or prior
written notice to the Operator required under this Section 9.4.
9.5 Lighting the Common Areas. The provisions of this Section 9.5 shall be subject
to any resolution or resolutions to the contrary which may be adopted by the Operator from time
to time. Lighting for the Common Areas (other than lighting necessary for security of the
Project or portions thereof) shall be administered in compliance with all Applicable Law by the
Operator and the Owners shall cooperate in all respects with the Operator with respect to such
lighting for the Common Areas. If "special" lighting (other than lighting necessary for security
of the Project) is required or deemed appropriate or if regular lighting is required for a time later
than the foregoing by any Owner or Occupant of the Project, then the electricity to service such
lighting requirements shall, if reasonably feasible, be separately metered and all expenses thereof
shall be paid by the Owner(s) or Occupant(s) who requires the special service. If such separate
.metering is not reasonably feasible, then the cost of such special lighting shall be determined and
equitably prorated based on the amount of time required by each such Owner or Occupant and
the Maximum Building Area of each Owner or Occupant in relation to the Maximum Building
Area of all of the Owners or Occupants requiring the special service; all such prorated expenses
shall be paid by the Owners or Occupants which require the special service. If any lighting for
any portions of the Common Areas is metered to any Building(s) within the Project, the Operator
may install metering devices to measure the portion of such Building(s)'s electricity usage which
is attributable to such Common Area service and the Owner(s) of such Lot(s) with such meters
shall receive a credit by the Operator against their Regular Assessments for Common Area
37
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Expenses equal to the costs of electricity service paid for by such Owner(s) which is attributable
to Common Area utility service as measured and reasonably determined by the Operator.
9.6 Signs. Except for directional signs for guidance within the parking and driveway
areas of the Common Areas approved by the Committee, any pylon sign for the Project, and such
other signs as may be required by Law (such as signs warning of hazardous substances), no sign
shall be erected or maintained upon the Common Areas. Subject to compliance with Article 7
above, each Owner shall have the right to erect, maintain and replace signs on the exterior of the
Buildings located on its Lot. Except as expressly permitted herein, there shall be no signs in the
Project without the prior written approval of the Committee. For purposes of this Section 9.6,
"signs" shall include any poster, display, billboard or other advertising device of any kind that
may be erected, hung, flown or otherwise displayed to the public on any portion of the Project or
any public street abutting the Project.
9.7 Pylon Sign. In the event that any pylon sign exists or shall hereafter be installed
upon the Project, Declarant grants to the Operator the right to grant rights to Owners and/or
Occupants of the Project ("Sign Panel Users") to place identification sign panels (individually a
"Sign Panel" and collectively "Sign Panels") on such pylon sign. Except as expressly granted
by Operator, no other Owner or Occupant shall have any rights to place any Sign Panels on any
such pylon sign. Except as otherwise provided herein, each Sign Panel shall comply with the
any sign restrictions contain in the Design Guidelines or any sign program established by the
Committee, and shall, in any event, be subject to the Committee's approval pursuant to Article 7
above.
Each Sign Panel User shall be solely responsible for all costs to fabricate, obtain permits
for and install its individual Sign Panels on such pylon sign. Each Sign Panel User shall
maintain its Sign Panel(s) and all individual illuminating components serving such Sign Panel(s)
in an attractive and good, clean and first-class state of order and repair, including the prompt
replacement of broken, faded or damaged sign panels, the prompt replacement of burned-out or
broken light bulbs and the prompt removal and repainting of graffiti. The sign easements
granted in this Declaration include a right of entry for Sign Panel Users and their contractors to
conduct sign panel installation, replacement and maintenance, provided such entry and work
shall not interfere with the use of any pylon sign by other Sign Panel Users, and the Sign Panel
User conducting such work shall promptly repair any damage to the pylon sign or any other
Improvements (including landscaping) on the Project which is caused by such entry and work
and shall indemnify, defend and hold the other Sign Panel Users harmless from and against any
and all claims arising from such entry. If any Sign Panel User fails to properly repair and
maintain its Sign Panel, and does not cure such failure within thirty (30) days following written
demand to do so from the Operator or any other Sign Panel User or Owner, then the Operator
may undertake and perform such maintenance, repair and/or the replacement of the Sign Panel in
question. The Operator may replace the Sign Panel with an appropriate-colored blank Sign
Panel, in order to maintain the Sign Panel in first-class appearance as provided for above. The
Sign Panel User which has failed to properly maintain its Sign Panel shall reimburse the
Operator for such curative work for all costs incurred to correct such failure, together with
interest at the lesser often percent (10%) or the maximum legal rate.
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Each Sign Panel User hereunder (whether or not it has assigned its rights to an Occupant)
shall pay its pro rata share of the costs reasonably incurred by the Operator to design, construct,
install, illuminate, operate, repair, replace and maintain the applicable pylon sign, said payment
to be made within thirty (30) days following receipt of each periodic billing from the Operator
(to occur not more often than monthly). Each Sign Panel User's pro rata share shall be based
upon the ratio that the size of its Sign Panel bears to the size of all Sign Panels available on the
pylon sign. If a portion of the pylon sign consists of a Sign Panel identifying the Project, then
the costs allocable to such Sign Panel shall be included within Common Expenses. If there are
any Sign Panels for which an Owner or Occupant is not entitled to use at any particular time,
then the costs allocable to such Sign Panel shall be included within Common Expenses.
9.8 Water Usage. If the Operator shall determine (in its sole and unfettered
discretion) that one or more Owners or Occupants are using a disproportionate amount of the
water utilized by all of the Owners and Occupants in the Project, then the Operator shall have the
right to separate metering devices with respect to such water use. In the event that such separate
meters are so installed, then the actual expenses for water use attributable to the Owner(s) or
Occupant(s) shall be paid by such Owner(s) and Qccupant(s) and shall not be included within
Common Expenses.
ARTICLE 10
EMINENT DOMAIN
If the whole or any part of the Project is taken by right of eminent domain or any similar
authority of law, the entire award for the value of the land and Improvements so taken shall
belong to the Owner(s) of the property so taken or to their Occupants, as their interest may
appear, and no other Owner of land in the Project shall claim any portion of such award by virtue
of any interest, easement or other right created by this Declaration; provided, however, any such
other Owner may file a collateral claim with the condemning authority over and above the value
of the land and Improvements being so taken to the extent of any damage suffered by such
Owner resulting from the severance of the area so taken, provided such collateral claim does not
diminish the amount recoverable by the Owner(s) of the property so taken. In the event of a
partial taking, the Owner(s) of the portion of the Project so condemned shall restore the
remaining portion of the Project owned by such Owner(s), including improvements in the
Common Areas, as nearly as possible to the condition existing just prior to such condemnation,
without contribution from the Owners of the area not so taken and any condemnation award
necessary therefor shall be held in trust and applied for such purpose; provided, however, that if
any Mortgagee of any property in the Project makes the requirement pursuant to a provision in a
Mortgage that the portion of the award representing compensation for severance damage to
property not taken be paid to the Mortgagee, then the party required to make such payment to
such Mortgagee shall not be obligated to restore the remaining portion of its Lot(s) so taken,
except to the extent necessary to clear and pave for parking and/or landscape in accordance with
plans approved by the Committee.
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ARTICLE 11
' MUTUAL RELEASE
Each Owner, for itself and, to the extent it is legally possible for it to do so, on behalf of
its insurer and Occupants, hereby releases the other Owners, Declarant, the Operator, the
Association, the Board and the Committee from any liability for (a) any loss or damage to the
property of each Owner located upon or in the Project, including Buildings and other
Improvements in the Project or the contents thereof caused by fire or other risks of the type
generally covered by a standard policy insuring against "all risk" perils (also known as "special
causes of loss"); and (b) any other direct or indirect loss or damage caused by fire or other risks,
which loss or damage is of the type generally covered by a standard policy insuring against "all
risk" perils (also known as "special causes of loss").
ARTICLE 12
EASEMENTS
12.1 Grants of Easements over Common Areas.
(a) Declarant hereby reserves to itself, its successors and assigns, and agrees
that it will and does hereby grant to each Owner of any Lot within the Project, and their
respective Occupants and Permittees, non-exclusive perpetual easements for access, ingress and
egress by vehicular and pedestrian traffic and vehicle parking upon, over and through the
designated pedestrian and vehicular traffic circulation patterns and parking areas upon the
Common Areas for those purposes.
(b) Declarant hereby reserves to itself, its successors and assigns, and agrees
that it will and does hereby grant to the Operator and the Association, and their agents and
representatives, an easement over all Common Areas as necessary to exercise the rights and to
perform the duties of Declarant, the Operator and the Association, respectively, as set forth in
this Declaration, including without limitation, for the purpose of operating, maintaining,
repairing, reconstructing, restoring and replacing all Common Area Improvements.
(c) Declarant hereby reserves to itself, its successors and assigns, and agrees
that it will and does hereby grant to the Operator, Association and Owners, and their agents and
representatives, easements for the installation, maintenance, repair and replacement from time to
time of any pylon sign now or hereafter located on the Project, together with rights of ingress and
egress over the Project for access thereto from the adjoining street.
(d) Declarant hereby reserves to itself, its successors and assigns, and agrees
that it will and does hereby grant to the Operator, Association and Owners an easement over the
Common Areas for drainage purposes.
The Common Areas, including all areas subject to the easements granted herein, shall be
maintained as further described in Article 14 below. All easements granted herein to Owners
shall be appurtenant to and shall pass with title to each such Owner's Lot and may be used by the
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~LOSAl:89449.v3
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Owners and Occupants of each such Owner's Lot, and their respective Permittees, subject to any
restrictions set forth in this Declaration.
12.2 Utility Easements. Declarant hereby reserves for its own use and benefit, and for
the use and benefit of the Association and all Owners, non-exclusive easements within all
Common Areas for the location, installation and maintenance of utilities and drainage facilities
of convenience or necessity as may be requested or required by the Declarant, the Association or
any Owner provided that the grant or reservation thereof does not unreasonably interfere with the
normal operation, improvement, and use of the Common Areas and the Buildings constructed
within the Project, and no affirmative monetary obligation is imposed upon the Owners (other
than the Owner benefiting from such easement). The Declarant (or the Operator where there no
longer is a Declarant) shall have the authority to grant additional easements or rights-of-way for
utilities over the Common Areas as necessary to serve the Common Areas and/or the Lots. Any
such easements shall be subject to review, approval and execution by the Owners of such
portions of the Lots affected by any such easements, such approvals not to be unreasonably
withheld or delayed. The Owner of any Lot and any of his Occupants or licensees shall have the
right at all reasonable times to enter upon the land subject to said easements and to install,
maintain, operate, repair and service utilities and drainage facilities thereon for the use and
benefit of his Lot; provided, however, any such Person shall restore said land, at his own
expense, as nearly as practicable, to the same condition as existed prior to such entry and shall
comply with the provisions of Section 14.7 below. The Owner of any Lot shall have the right to
assign the benefit and use of any such easement to any public or private utility company, agency
or district for the purpose of installing, operating, repairing, servicing and maintaining utilities or
drainage facilities and enforcing the easement rights. For purposes hereof, "utilities" shall
include electricity, gas mains and lines, water distribution lines, storm water sewers, sanitary
sewers, telephone, fiberoptic, cable TV, and telegraph cables and lines, and other similar or
related facilities commonly regarded as utilities. All storm drains, utility lines, transformers and
meters shall be maintained under the terms of this Declaration in a safe and good working
condition by the party responsible therefor. No grantee of a utility easement shall in the use,
construction, reconstruction, operation, maintenance or repair of any storm drains, utility lines,
transformers and meters in any way interfere, obstruct or delay the business of any Owner or
Occupant, or the public access to and from said business or interfere, obstruct or delay in any
way the receiving of merchandise by any Owner or Occupant.
12.3 Construction and Repair. In addition to the foregoing and in connection with any
work performed upon a Lot, incidental encroachments into or upon the Common Areas within
that Lot shall be permitted in connection with the use of ladders, scaffolding, storefront
barricades and similar facilities resulting in temporary obstruction of portions of the Common
Areas, all of which are permitted under this Section 12.3 so long as their use is kept within
reasonable requirements of construction work expeditiously pursued. The Common Areas may
be used for ingress and egress of vehicles transporting construction materials, equipment and
Persons employed in connection with any work provided for in this Declaration. The Common
Areas within the Lot upon which the construction is taking place may also be used for temporary
storage of material and vehicles being used in connection with such construction, subject to all of
the other terms of this Declaration. Reasonable precautions and measures shall be taken so that
any disturbance to the use of the Common Areas generated by such encroachments will be
minimized.
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12.4 Obstructions Within Common Areas. Except as otherwise expressly provided in
this Declaration, no walls, fences, barriers or obstructions of any sort or kind shall be constructed
or maintained in the Project, or any portion thereof, by any Owner, its agent or Occupant, which
prevent or impair the use or exercise of any of the easements granted in this Article 12,
including, but not limited to, the ingress and egress of vehicular and pedestrian traffic and
parking within and upon the Common Areas; provided, however, reasonable traffic controls
(including speed bumps) as may be necessary to guide and control the orderly flow of traffic may
be installed so long as access driveways are not closed or blocked and the traffic circulation
pattern of the Common Areas is not changed or affected in a substantial way; and provided
further, temporary fences made of security chain link may be erected to cordon off areas of
construction activity (including staging areas for equipment and materials).
12.5 Right of Entry by Declarant. Association. Operator. Declarant, the Association,
the Operator, and their employees, agents, and contractors are hereby granted the right to enter
upon the Common Areas and upon any other portion of the Project, to the extent reasonably
necessary, to repair, improve, maintain and operate the Common Areas and to exercise the rights
and to perform the duties imposed by this Declaration on the Operator or the Association. Such
right of entry upon portions of the Project other than the Common Areas shall be exercised so as
to interfere as little as reasonably possible with the possession, use and enjoyment of the Owner
or Occupants of such portion and shall be subject to the provisions of Section 8.4 above. The
Association shall indemnify, protect, hold harmless and defend the Owner and Occupants of
each Lot over which the foregoing easements are reserved from and against all liabilities, losses,
liens, damages, claims, costs and expenses and arising from or caused by the use of such
Common Areas by the Declarant, Association, and Operator.
12.6 Entry by Owners. In connection with any entry by an Owner onto any Common
Areas for purposes of exercising such Owner's rights pursuant to utility or drainage easements
pursuant to Section 12.2 above, or performing any other work on the Common Areas permitted
under this Declaration or otherwise approved by the Operator, such Owner shall, at its expense:
(a) Maintain, at all times during such period of entry, commercial general
liability insurance with a combined single limit per occurrence of at least $2,000,000, naming the
Association (and the Owner and Occupants of such Common Areas if not owned by the entering
Owner) as additional insureds, and providing that such coverage shall not be terminated or
modified without at least thirty (30) days' prior written notice to the Operator;
(b) Deliver to the Operator a certificate evidencing that such insurance is in
full force and effect prior to entry onto such Common Areas;
(c) Perform all work in a safe manner, insure that no hazardous condition
remains on such Common Areas, and repair any damage thereto;
(d) Keep such Common Areas free and clear of all mechanics' or
materialmen's liens arising out of such Owner's activities;
(e) Comply with all applicable Laws in connection with such work; and
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~LOSAl:89449.v3
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(f) Indemnify, protect, hold harmless and defend the Association, the
Operator and the Owner and Occupants of such Common Areas from and against all liabilities,
losses, liens, claims, damages, costs and expenses (including attorneys' fees and court costs) for
labor or services performed or materials furnished to or for such Owner, or for personal injury,
death or property damage, arising out of or related to such Owner's entry or breach of the
provisions of this Section 12.6.
12.7 Easements by Owner. Upon the reasonable request of Declarant or the
Association, an Owner shall grant to the Declarant or the Association such additional easements
over such Owner's Lot(s) as may be reasonably requested for the benefit of one or more other
Lots or the Common Areas provided, and upon condition that, the grant of such additional
easement does not materially interfere or impede such Owner's use of its Lot(s).
12.8 Easements Reserved and Granted. Any easements referred to in this Declaration
shall be deemed reserved or granted, or both reserved and granted, as applicable, notwithstanding
that a deed to any Lot fails to reference this Declaration or such reservation or grant.
12.9 Reservation by Declarant. Declarant hereby reserves the right to subsequently
grant and create any additional easements over one or more of the Lots owned by Declarant,
including the Common Areas contained therein, for the benefit of one or more other Lots owned
by Declarant, provided, and upon condition that, the grant of any such additional easements shall
not materially interfere with or impede with the grant and use of the other easements established
hereunder.
ARTICLE 13
OWNER MAINTENANCE
13.1 Owners' Maintenance Obligations. Subject to Section 13.3 below, each Owner
shall maintain, repair and replace (or cause to be maintained, repaired and replaced) the
following:
(a) All exterior surfaces and roofs of Buildings and all Building
Appurtenances and other Improvements located upon such Owner's Lot and within the Building
Area for such Lot, so that the exterior walls, exterior signs, roofing materials, glass and painted
surfaces and other areas visible from the Common Areas, are at all times maintained in a first-
class condition in accordance with approved plans for such Lot, this Declaration, and all other
applicable City standards and regulations. All painted portions of Building exteriors shall be
repainted no less frequently than once each five (5) years (unless the Committee waives in
writing such requirement) with the same colors as such portions were originally painted or
stained, unless the Committee approves a change in color, which approval may be withheld in
the Committee's sole, absolute and unfettered discretion.
(b) Those portions of facilities for water, sewer, gas, telephone, electricity and
other utilities, landscaping, drainage and/or irrigation that are for the exclusive benefit of such
Owners' Buildings, whether or not such facility or structure is located in Common Areas, in
good order, condition and repair and so as to not interfere, interrupt or otherwise impair delivery
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of utilities required for maintenance of the Common Areas and by other Buildings within the
Project.
(c) Each Owner and or its Occupants shall also contract for the removal of
trash from its Buildings.
(d) Each Owner shall also adopt and maintain such standards of property
maintenance, appearance and housekeeping as are necessary or appropriate to keep and maintain
the foregoing in first-class condition, repair and appearance.
13.2 Closure. Each Owner of a Lot shall, following the permanent closure or cessation
of any business operation which is expected to continue for any extended period of time, take
such measures as may be reasonably required under the circumstances to prevent vandalism,
including preventing graffiti and preventing windows from being broken, and to keep the vacant
Building or premises in a reasonably attractive manner.
13.3 Repair or Replacement of Damaged Building. In the event of any damage to or
destruction of any Building(s), Building Appurtenance(s) and/or any other Improvement(s) on
the Building Area of a Lot, the Owner of such Lot shall, subject to the requirements and
limitations stated in this Declaration and any Mortgage encumbering such Lot, (a) repair, restore
and rebuild such Building(s), Building Appurtenance(s) and/or other Improvement(s) as quickly
as reasonably practicable subject to the requirements and limitations stated in this Declaration;
(b) tear down and remove all parts of said damaged or destroyed Building(s), Building
Appurtenance(s) and/or other Improvement(s) then remaining and the debris resulting therefrom
and otherwise clean and restore the area affected by such casualty to a level and clean condition;
or (c) any combination of the above in a manner satisfactory to the Committee. The Owner of
any Lot on which damaged Building(s), Building Appurtenance(s) and/or any other
Improvement(s) are located shall be obligated to proceed with all due diligence hereunder, and
such Owner shall cause cleanup and/or reconstruction to commence within three (3) months after
the damage occurs and to be completed within twelve (12) months thereafter, unless prevented
by causes beyond such Owner's reasonable control. Any damage or destruction to any
Building(s), Building Appurtenance(s) or other Improvement(s) shall not affect the amount of
assessments allocated to the Owner of the Lot upon which such Building(s), Building
Appurtenance(s) and/or other Improvement(s) is (are) located.
ARTICLE 14
COMMON AREA MAINTENANCE
14.1 Operator Maintenance. The Operator shall manage, maintain, repair and replace
(or cause to be managed, maintained, repaired and replaced), the Common Areas (i.e., all areas
and Improvements located outside of the Building Areas on each Lot and all Common Area
Improvements in a first-class condition and a good state of repair and appearance, including, but
not limited to, contracting for and paying costs of or related to (i) utility services provided to
such Common Areas; (ii) sweeping and cleaning (including steam cleaning) the parking areas,
sidewalks and other hardscape, as necessary; (iii) repairing and replacing asphalt paving using
materials equal to or better than those originally installed; (iv) parking area bumpers; (v) parking
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~LOSAl:89449.v3
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area striping and directional signs; (vi) light bulbs and light standards; (vii) perimeter walls;
(viii) electrical lines, gas lines (if applicable), storm drains, water lines and sanitary sewers
which serve such Common Areas or which are within such Common Areas (including any
easement areas); (ix) planters, all landscaping and sprinkler systems (all in accordance with the
landscaping requirements set forth on Exhibit "E" attached hereto); (x) hiring and supervising
private security, if any; (xi) insurance as provided in Section 14.2 below; (xii) the maintenance
of the Common Areas in accordance with this Declaration and applicable Laws;
(xiii) compliance with the Storm Water Management Plan, including, without limitation,
maintenance of the catch basin filter inserts located in the Common Areas; and (xiv) all other
items of Common Area maintenance, repair or replacement that may be needed from time to
time to maintain such Common Areas properly and in a first-class condition. The cost of
maintenance for which the Operator is responsible under this Article 14 shall be assessed as part
of the Regular Assessments for Common Expenses.
The foregoing notwithstanding, the following exceptions shall apply:
(a) During the period of construction or repair of any Building on any Lot, the
Owner of such Lot shall maintain (or cause to be maintained) those portions of the Common
Areas within its Lot, if any, which are affected by such Building construction or repair and shall
be responsible for controlling blowing dust and debris resulting from such construction or repair
activity.
(b) With respect to those portions of facilities for water, sewer, gas, telephone,
electricity and other utilities and any central plant facility serving more than one Building with
different Owners and lying on or beneath the Common Areas (e.g., an electric trunk line from
which individual lateral lines are routed to serve different individual buildings), the Operator will
perform any required maintenance, repair or replacement (or cause the same to be performed),
and will bill each Owner's share of the cost of the work to the Owners of the Lots whose
Buildings are served by the facilities. Each Owner's share of the total bill shall be determined by
multiplying the total bill by a fraction, the numerator of which is the Maximum Building Area of
the Building located on the Owner's Lot or Lots served by the facility, and the denominator of
which is the Maximum Building Area of all Buildings located on the Lots served by the facility.
Each Owner shall be responsible for maintenance and repair of the lateral lines serving his Lot or
Lots and any central plant facilities.
(c) With respect to those portions of facilities for water, sewer, gas, telephone,
electricity and other utilities serving one or more Buildings owned by the same Owner and lying
on or beneath the Common Areas, the Operator will perform any required maintenance, repair or
replacement (or cause the same to be performed), and will bill the Owner of the Lot(s) whose
Building(s) is served by the facilities. With the consent of the Operator, the Owner of the
affected Building or Buildings may contract directly for any such required maintenance, repair or
replacement work to be performed at the sole cost and expense of such Owner.
(d) The Operator shall not be responsible for maintenance and repair of any
Common Areas arising out of or caused by the willful or negligent act or omission of any Owner,
Occupants or Permittees, and such repairs or replacements shall be the responsibility of such
Owner. If the Owner fails to perform such repairs and replacements within thirty (30) days after
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receipt of a written notice, and provide the Owner has been given an opportunity to be heard by
the Operator, orally or in writing, the Operator shall have the right (but not the obligation) to
make such repairs or replacements, and the cost thereof shall be charged to such Owner and his
Lot or Lots as a Reimbursement Assessment pursuant to Section 3.8 above. Notwithstanding the
foregoing, if the cost of any such repairs or replacements are covered by insurance proceeds
maintained by the Operator, the Operator shall offset such costs by the amount of insurance
proceeds received on account thereof, provided the necessity for such repair or replacement was
not due to the willful act of an Owner or its Occupants or Permittees (excluding, however, the
willful acts of invitees).
14.2 Common Areas Insurance.
(a) As part of its obligation to maintain the Common Areas within the Project,
the Operator shall at all times maintain hi force and effect commercial general liability insurance
insuring Declarant and, as additional insureds, the Association, the Board, the Committee, all
Owners and Occupants who now or hereafter own or hold any Lot or any qualifying leasehold
estate (i.e., qualifying the lessee thereunder to be, treated as an Owner under this Declaration) and
any third party property management company performing services for the Operator, if any, and
any other party in interest identified by the Operator as their respective interests may appear
(provided that the Operator is given prior written notice of such interest), against claims for
bodily injury, personal injury, death or property damage occurring in, upon or about the
Common Areas of the Project. Such insurance shall be written with an insurer licensed to do
business in the State of California. All such insurance shall be primary coverage, endorsed to
name as additional insureds all Owners and Owner/Occupants under leases of which the
Operator has been notified in writing, and shall not require that any other insurance be called
upon to contribute to a loss under such coverage, and shall have liability limits of not less than
Two Million Dollars ($2,000,000) combined single limit coverage for bodily injury, personal
injury, death and/or property damage arising out of any single occurrence, which amount shall be
reviewed annually and changed to reflect the current practice in mixed use commercial centers in
San Diego County, California which are of a similar size and which have a similar mix of
Occupants. The Operator shall cause certificates of insurance to be issued by the insurer to each
of the Owners of whom the Operator has been notified in writing, certifying that such insurance
is in full force and effect and shall not be canceled or materially amended without thirty (30)
days prior written notice thereof to each of such Owners.
(b) The Operator shall obtain and maintain in force property damage
insurance under a standard form policy or policies of all-risk insurance then in use in California,
covering all Common Area Improvements;
(c) Worker's compensation insurance, as required by law;
(d) Association Directors' and Officers' errors and omissions insurance, in
form and amount determined by the Board; and
(e) Insurance against any other risk which the Operator considers appropriate.
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14.3 Operator's Right to Repair Neglected Lots. In addition to maintaining the
Common Areas, if an Owner fails to maintain any Improvements or any other portions of such
Owner's Lot so as to violate Section 13.1 above, then the Operator shall have the right, through
its agents, contractors and employees, to enter onto the Owner's Lot to repair, maintain and
restore the Lot, and the exteriors of any Building(s), Building Appurtenances and other
Improvements erected thereon. However, entry into a Building may be made only after not less
than five (5) business days notice has been given to the Owner. Entry shall be made with as little
inconvenience to the Owner and Occupants as possible and any damage caused thereby shall be
repaired by the Operator at no cost to the Lot Owner or Occupant. The cost of such exterior
maintenance shall be levied as a Reimbursement Assessment against such Lot pursuant to
Section 3.8 above.
14.4 Property Management Company. Nothing in this Article 14 or in this Declaration
shall preclude or be interpreted as precluding the Operator from retaining a "managing agent"
within the meaning of §1363.1 of the California Civil Code, as it may be amended or replaced
from time to time, to perform all or any portion of the duties and responsibilities of the Operator.
If the Operator so retains such a "managing agent,," then the "managing agent" and the Operator
shall make all arrangements necessary or proper to ensure that funds accepted or received by the
"managing agent" and belonging to the Operator are deposited and handled in compliance with
§1363.2 of the California Civil Code, as it may be amended or replaced from time to time. The
Operator may retain an affiliate of Declarant as managing agent. Management fees paid to any
such managing agent shall be a Common Expense or Common Parking Expense, as applicable.
14.5 Conveyance of Common Area Lot to Association. Declarant shall, on or before
the first conveyance of any Lot to a Person that is not an Affiliate, of Declarant, convey Lot 1
and all Improvements located thereon to the Association.
14.6 Assessment District: Dedication of Common Areas. The Operator shall have the
right to cooperate with governmental entities to establish a special assessment district for
improvement or maintenance of all or any of the Common Areas. Declarant or the Association
shall have the right to dedicate or transfer, or grant an easement over, all or any portion of the
Common Areas in which such party holds an interest to any public agency or authority or public
or private utility, subject to such conditions.
14.7 Destruction, Restoration. As soon as practicable after the damage or destruction
of all or any portion of any Common Areas, the Operator shall: (a) obtain bids from at least two
(2) reputable contractors, licensed in California, which bids shall set forth in detail the work
required to repair, reconstruct and restore such damage or destroyed areas to substantially the
same condition as existed prior to such damage and the itemized cost of such work; and (b)
determine the amount of all insurance proceeds available to the Association for the purpose of
effecting such repair, reconstruction and restoration. If the insurance proceeds available to the
Operator are sufficient to effect the total repair, reconstruction and restoration of the damaged or
destroyed areas, then the Operator shall cause such to be repair, reconstructed and restored to
substantially the same condition as existed prior to such damage. If the proceeds of insurance
available to the Operator are insufficient to cover the cost of repair, reconstruction and
restoration, the Operator shall levy a Special Assessment as provided in Section 3.7 above for all
additional funds needed to comply with the obligation of the Operator to repair, reconstruct,
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~LOSA!:89449.v3
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restore or maintain the Common Areas in accordance with this Article 14, except that any
limitations on the amount of a Special Assessment shall not apply.
ARTICLE 15
APPROVAL OF OWNERS AND NOTICES
/
All notices, demands or requests for consent or approval of any kind which the Operator
or any Owner or Occupant is required or desires to give or make upon Declarant, the Operator,
the Association or any other Owner or Occupant shall (a) be in writing; (b) specify the Section of
this Declaration which requires or authorizes that such notice be given or requires that such
consent or approval be obtained; and (c) be given or made by personal delivery, private express
courier, or by United States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows: If intended for an Owner, to the last known address of the Owner. If to
Declarant, to c/o Pacific Starr Group, LLC, 650 Sierra Madre Villa Avenue, Suite 108, Pasadena,
California 91107. The address for the Association and the Board shall be established by
Declarant upon formation of the Association. Mailing addresses may be changed at any time
upon written notification to the Operator.
When given in the manner prescribed in this Article 15, all notices, demands or requests
for consent or approval shall be deemed given, received, made or communicated on the date
personal delivery is effected or, if mailed, on the delivery date or the date on which delivery is
refused by the addressee.
ARTICLE 16
AMENDMENTS
Until such time as there is an Owner of any portion of the Property other than Declarant
or an Affiliate of Declarant, this Declaration may be amended and such amendment shall be
effective when executed by Declarant and recorded in the Official Records of San Diego County.
From and after the date that, but only so long as there is an Owner of any portion of the Property
other than Declarant or an Affiliate of Declarant, this Declaration may not be terminated,
extended, amended or restated in any respect whatsoever, or rescinded, in whole or in part,
except by written instrument duly recorded in the Office of the County Recorder of San Diego
County ("Supplemental Declaration"), after first being duly signed and acknowledged by those
Owners (which may include Declarant) holding at least seventy-five percent (75%) of the
Members' voting power. Notwithstanding the foregoing, this amendment provision shall not be
amended either (i) to allow amendments to the Declaration by the assent or vote of less than
seventy-five percent (75%) in voting interest of all Owners, or (ii) to deprive Declarant of any
rights or powers granted to it hereunder. In addition, this Declaration cannot be amended to
modify or eliminate the easements reserved to Declarant or granted to the Operator and the
Association without the prior written approval of Declarant, the Operator or the Association,
respectively. This Declaration shall not be amended in a manner that would materially and
adversely affect one Owner's interest in its Lot, Building or the Project for the benefit of any
other Owner(s), without the prior written consent of the Owner who is adversely affected. Any
amendment which affects or purports to defeat or render invalid the lien of any Mortgage made
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in good faith and for value, to be effective, must be approved in writing by the record holders of
all such Mortgages encumbering the affected portions of the Property at the time of such
amendment. Notwithstanding anything in this Article 16 to the contrary, (i) no amendment to
this Declaration shall be effective unless a copy thereof shall have been provided to the City not
less than fifteen (15) days prior to the recordation thereof in the Office of the County Recorder of
San Diego County, and (ii) no amendment to Section 5.2(b), this Article 16, Article 26 or Article
28 of this Declaration shall be effective unless approved in writing by the City at the time of such
amendment. Operator shall cause a copy of any final approved amendment to this Declaration to
be transmitted to the City for the City's official records within thirty (30) days after recordation
thereof in the Office of the County Recorder of San Diego County.
ARTICLE 17
NOT A PUBLIC DEDICATION
Nothing contained in this Declaration shall be deemed to be a gift or dedication of any
portion of the Project to the general public or for the benefit of the general public or for any
public purposes whatsoever, it being the intent of Declarant that this Declaration shall be strictly
limited to and for the purposes expressed in this Declaration. The right of the public or any
Person to make any use whatsoever of the Project or any portion thereof (other than any use
expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission
and subject to control of the Owners.
ARTICLE 18
INJUNCTIVE RELIEF
In the event of any violation or threatened violation by any Owner or Occupant of any
portion of the Project of any of the terms, covenants, conditions and obligations of this
Declaration, in addition to the other remedies for which this Declaration provides, Declarant, the
Association and any or all of the other Owners shall have the right to enjoin such violation or
threatened violation in a court of competent jurisdiction.
ARTICLE 19
BREACH SHALL NOT PERMIT TERMINATION
No breach of this Declaration shall entitle any Owner to cancel, rescind or otherwise
terminate this Declaration, but such limitation shall not affect in any manner any other rights or
remedies which such Owner may have under this Declaration by reason of any breach of this
Declaration. Any breach of any of the covenants, conditions or restrictions set forth in this
Declaration, however, shall not defeat or render invalid the lien of any Mortgage made in good
faith and for value, but such covenants, conditions or restrictions shall be binding upon and be
effective against such Owner of any of said property or any portion thereof whose title thereto is
acquired by foreclosure, trustee's sale or otherwise.
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-LOSAI:89449.v3
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ARTICLE 20
INDEMNITY/INSURANCE BY OWNERS
20.1 Indemnity. Each Owner shall indemnify, protect, defend and hold harmless,
Declarant, the Association, the Board and all officers, directors and committees of the
Association, and the other Owners from and against all claims, expenses, liabilities, loss, damage
and costs, including any actions or proceedings in connection therewith and including reasonable
attorneys' fees and costs, incurred in connection with, arising from, due to or as a result of the
death of or any accident, injury, loss or damage, howsoever caused, to any Person or loss or
damage to the property of any Person as shall occur on the indemnifying Owner's Lot (excluding
Common Areas) including, without limitation, violation of any Hazardous Materials Laws, or the
failure by an Owner to comply with the provisions of Section 8.6 above regarding Hazardous
Materials and compliance with Hazardous Materials Laws, except claims resulting from the
negligence or willful act or omission of (a) the Association or the indemnified Owner, whichever
is applicable; (b) any Occupant of the indemnified Owner's Lot (including such Occupant's
agents, servants and employees); or (c) the agent, servants or employees of such indemnified
Owner, wherever such negligence or willful act or omission may occur. In addition, to the
fullest extent permitted by law, neither Declarant, the Committee the Association, the members
of the Board nor any of their respective agents, employees, successors or assigns shall be liable
to any Owner for any damage, loss or prejudice suffered or claimed on account of any decision,
approval or disapproval of plans and specifications (whether or not defective), course of action,
act, omission, error, negligence or the like made in good faith and reasonably believed to be
within the scope of their respective duties.
20.2 Insurance. Each Owner shall at all times during the term of this Declaration
maintain or cause to be maintained commercial general liability insurance covering the Owner's
Lot (excluding Common Areas) insuring against the risks of bodily injury, property damage and
personal injury liability, with a limit of not less than Three Million Dollars ($3,000,000) per
occurrence, which amount shall be reviewed and adjusted by the Operator every three (3) years
for increases recommended by insurance industry-recommended standards for comparable
mixed-use office/retail complexes in San Diego County, California. Each Owner shall maintain
property insurance, insuring all Buildings, Building Appurtenances and other Improvements on
the Building Area of its Lot benefiting that Owner and personal property located therein from
and against lose or damage by fire and/or casualty, under the standard form of ISO Causes of
Loss Special Forms insurance then in use in the State of California or under such other insurance
as may be required under the terms of any Mortgagee encumbering the Lot.
ARTICLE 21
SEVERABILITY
If any provision of this Declaration is held by a court of competent jurisdiction to be
invalid, the invalidity of such provision shall not affect the validity of the remaining provisions
of this Declaration, and all remaining provisions shall continue unimpaired, in full force and
effect.
50
~LOSAl:89449.v3
ARTICLE 22 24223
ENFORCEMENT AND REMEDIES
22.1 Right to Enforce. Declarant or the Association, as Operator, shall have the right
to enforce, by all appropriate legal and equitable proceedings, all conditions, covenants,
restrictions, reservations, liens, and charges now or hereafter imposed by the provisions of this
Declaration. It is hereby agreed that money damages are an inadequate remedy for breach of any
of the conditions, covenants and restrictions contained herein, other than a default in the payment
of any assessment when due. Every Owner and Occupant of a Lot subject to these restrictions
expressly waives the benefit of California Code of Civil Procedure Section 731 (a) and any other
comparable statute or rule, and agrees that such violation or breach may be enjoined whether or
not monetary damages may be provided or provable.
22.2 Owner's Remedies. After written request to the Operator to prevent any violation
of, or remedy any failure to timely perform, any responsibility or obligation under this
Declaration by the Operator, Declarant, the Association, the Committee or any other Owner or
Occupant, and failure by the Operator, Declarant or the Association within thirty (30) days after
receipt of such request to diligently investigate the matter and undertake to remedy or otherwise
address such matter, any Owner shall additionally have all enforcement rights provided for in
this Declaration. In addition, any other party to whose benefit this Declaration inures shall have
the right, in the event of violation or breach of this Declaration, to prosecute a proceeding at law
or in equity against the Person or Persons who have violated or are attempting to violate this
Declaration, to enjoin or prevent them from doing so, to cause said violation to be remedied and
to recover damages for said violation.
22.3 Waiver. The failure of any Owner, Declarant, the Operator or the Association to
enforce any provision of this Declaration shall in no event be deemed a waiver of the right to do
so thereafter, and neither any Owner, Declarant, the Operator nor the Association shall have any
liability for such failure of such Owner, Declarant, the Operator or the Association to enforce
any provision of this Declaration.
ARTICLE 23
LITIGATION EXPENSES
If the Operator, Declarant, any Owner or the Association brings an action against any
other Owner or Occupant by reason of a breach or alleged violation of any covenant, term or
obligation of this Declaration, or for the enforcement of any provision of this Declaration or
otherwise arising out of this Declaration, the prevailing party in such action shall be entitled to
its cost of suit and reasonable attorneys' fees, which shall be made part of any judgment rendered
in such action.
51
-LOSAl:89449.v3
24224
ARTICLE 24
NO ASSIGNMENT OR TRANSFER
The rights, powers, duties and obligations conferred upon the Owners pursuant to this
Declaration shall not at any time be transferred or assigned by any Owner, except (a) in the case
of the rights, powers, duties and obligations of Declarant, by Declarant pursuant to the definition
of "Declarant" set forth in Article 1 above; (b) in the case of any Owner, (i) through a transfer of
the Owner's interest in its Lot in the manner provided in Article 25 below, or (ii) to a qualified
Occupant pursuant to Section 2.3 above, and (c) in the case of Declarant or any Owner, through a
pledge, collateral assignment, conveyance in trust, encumbrance or hypothecation to or in favor
of a Mortgagee.
ARTICLE 25
SALE BY OWNER
Upon the sale, transfer (including, without limitation, by foreclosure), conveyance or
assignment by any Owner of its right, title and interest in its Lot (other than as contemplated in
Article 24(c) above), the following shall apply:
25.1 Notice. The transferring or transferee Owner shall give prompt written notice of
the sale, transfer, conveyance or assignment to the Operator, the Association and Declarant, as
long as Declarant owns a Lot. Such notice shall set forth the name of the transferee and the
transferor, the description of the affected Lot, the nature of the interest transferred, the
transferee's mailing address and the date of transfer. Prior to receipt of such notification, any
and all communications required or permitted to be given under the Project Documents shall be
deemed to be duly given to the transferee if duly and timely given to said transferee's transferor.
25.2 Constructive Notice and Acceptance. Each Owner and Occupant, and every other
person who now or hereafter owns or acquires any right, title, estate or interest in or to any
portion of the Project, by acceptance of a deed, lease or other interest therein, shall be
conclusively deemed to have consented and agreed to hold such title, leasehold or interest
subject to and to comply with every covenant, condition and restriction contained herein and to
the rights of Declarant, the Operator and the Association hereunder, whether or not any reference
to this Declaration is contained in the deed, lease or other instrument by which such person
acquired said interest in the Project. Every provision of this Declaration, regardless of its
characterization herein, shall be deemed a covenant, condition, restriction, reservation, easement
or servitude, as the circumstances may require, to permit the enforcement thereof and to carry
out the intent of this Declaration.
25.3 Release of Owner. A transferring Owner shall be released from all obligations of
this Declaration as of the effective date of the transfer, provided that with respect to the period
before the effective date of the transfer, such Owner is not in default in the performance of any
duties or obligations arising under this Declaration or in the payment of any amounts due and
payable under this Declaration.
52
~LOSAl:89449.v3
24225
25,4 Liability of Transferee. In no event shall any transferee of any Owner be liable
for any default of the transferring Owner under this Declaration which occurred prior to the
effective date of the transfer; provided, however, nothing contained in this Section 25.4 shall
affect the existence, priority, validity or enforceability of any lien placed upon the transferred Lot
or portion thereof pursuant to Section 3.15 above.
ARTICLE 26
TERM OF DECLARATION
Subject to the provisions of Article 16 above, this Declaration shall run with the land and
continue in full force and effect for a period of fifty (50) years and thereafter year to year, unless,
within three (3) months prior to expiration of the term (as it may be so extended), a written
instrument duly signed and acknowledged by (i) the Declarant, if the Declarant still owns a Lot
within the Project, (ii) Owners (which may include Declarant) holding at least seventy-five
percent (75%) of the Members voting power, and (iii) the City, is recorded in the Office of the
County Recorder of San Diego County, California terminating this Declaration in whole or in
part as to all or a portion of the Property.
ARTICLE 27
MISCELLANEOUS
27.1 Assignment. Notwithstanding any provision of this Declaration to the contrary,
Declarant may, at any time, relieve itself of its rights and obligations under this Declaration
(including all obligations and duties as the Operator) by recording a notice stating that Declarant
has surrendered said rights and obligations and, upon recordation of such notice, even if it is not
specified therein, said powers and obligations shall immediately vest in the Association. If at
any time Declarant ceases to exist and has not made such an assignment, the rights and
obligations of Declarant shall automatically vest in the Association.
27.2 Constructive Notice and Acceptance. Each Owner and Occupant, and every other
person who now or hereafter owns or acquires any right, title, estate or interest in or to any
portion of the Property, by acceptance of a deed, lease or other interest therein, shall be
conclusively deemed to have consented and agreed to hold such title, leasehold or interest
subject to, and comply with, every covenant, condition and restriction contained herein and to
the rights of Declarant hereunder, whether or not any reference to this Declaration is contained in
the deed, lease or other instrument by which such person acquired such interest in the Property.
Every provision of this Declaration, regardless of its characterization herein, shall be deemed a
covenant, condition, restriction, reservation, easement or servitude, as the circumstances may
require to permit the enforcement thereof and to carry out the intent of this Declaration.
27.3 Estoppel Certificate. Each Owner and Mortgagee shall, upon reasonable written
request to Declarant, the Association, or the entity then charged with enforcement of the terms of
this Declaration, be entitled to receive, within fifteen (15) days after such request is made, a
statement specifying the nature of any known default of such applicable Owner. For such
53
-LOSAl:89449.v3
24226
statement, Declarant, the Association or such other certifying party, shall be entitled to charge a
reasonable fee based upon administrative expenses.
27.4 Captions. Captions and Section headings, where used in this Declaration, are for
convenience of reference only, are not intended to be a part of this Declaration and in no way
define, limit, amplify, change, alter or describe the scope or intent of the particular paragraphs to
which they refer.
27.5 Gender. For the purpose of this Declaration, the neuter gender includes the
feminine or masculine and the singular number includes the plural.
27.6 Declarant's Reserved Rights. Wherever it appears in this Declaration that
Declarant has the right to waive compliance with certain provisions, the right to approve or deny
certain matters or the right to exercise its discretion in various areas, these rights of the Declarant
are expressly reserved or retained by Declarant, and all of the provisions of this Declaration are
subject to such retained and reserved rights.
27.7 Exhibits. All exhibits referred to herein are attached hereto and incorporated by
reference.
27.8 Governing Law. This Declaration shall be governed, construed and enforced in
accordance with the laws of the State of California.
27.9 Mortgage Protection. No breach of this Declaration shall affect, impair, defeat or
render invalid the lien of any Mortgage now existing or hereafter executed in good faith and for
value upon any part of the Project, except for the foreclosure of an assessment lien that is
superior to such Mortgagee pursuant to Section 3.13 above and subject to the limitations
contained in Section 3.13 above. However, if any portion of the Project is sold under a
foreclosure of any Mortgage or is conveyed to the party so secured in lieu of foreclosure, any
purchaser at such sale, and his successors and assigns, shall hold any and all property so acquired
subject to all of the restrictions and other provisions of this Declaration. Such a purchaser shall
not be obligated to cure any preexisting breach of this Declaration which is non curable by
payment of money (subject to Section 3.13 above) or of a type which is not practical or feasible
to cure. Any loan to facilitate the resale of any portion of the Property after a foreclosure sale or
deed in lieu of foreclosure is a loan made in good faith and for value. If a Mortgagee delivers
written notice of its Mortgage to the Operator together with a request for notices of default with
respect to the Lot or Lots encumbered by the Mortgage, the Association shall deliver copies of
all such notices of default to such Mortgagee (a "Requesting Mortgagee") concurrently with
delivery to the Owner or Owners. A Requesting Mortgagee shall also be entitled to timely
written notice of any destruction, taking or threatened taking that affects a material portion of the
Common Areas benefiting a Lot securing the Mortgage, and any lapse, cancellation or material
modification of any insurance policy maintained by the Operator. Mortgagees are hereby
authorized to furnish information to the Operator concerning the status of any Mortgage.
Nothing contained in this Declaration or the other Project Documents shall give the Association,
any Owner, or any other party priority over the rights of a Mortgagee with respect to
distributions of insurance proceeds or condemnation awards for losses to or a taking of a Lot or
Building, or any portion thereof, encumbered by a Mortgage held by such Mortgagee.
54
-LOSAl:89449.v3
24227
27.10 Mutuality. Reciprocity; Runs With Land. This Declaration is made for the direct,
mutual and reciprocal benefit of each and every Lot; shall create mutual, equitable servitudes
upon each Lot in favor of every other Lot; shall create reciprocal rights and obligations between
and among the respective Owners during their respective periods of ownership and privity of
contract and estate between and among all grantees of each Lot, their respective heirs, successors
and assigns; and shall, with respect to the Owner of each Lot, its heirs, successors and assigns
during their respective periods of ownership, operate as covenants running with the land, for the
benefit of all other Lots.
27.11 Carlsbad Oaks Business Center. The Project is subject to that certain Declaration
of Protective Covenants for Carlsbad Oaks Business Center recorded October 11,19085 as File
No. 85-378668 in the Official Records of the County of San Diego (the "Carlsbad Oaks
CC&Rs"). The Association (and not any Owner) shall be a member of the Carlsbad Oaks
Business Center Association (which is the Association under the Carlsbad Oaks CC&Rs). It is
hereby acknowledged that:
(i) the Association under the Carlsbad Oaks CC&Rs retains all of its
rights under the Carlsbad Oaks CC&Rs (including the right to levy fines and liens against
the Project even if only one Owner is in violation of the Carlsbad Oaks CC&Rs), and
(ii) in the event of a conflict between the Carlsbad Oaks CC&Rs and
the provisions hereof, the requirements of the Carlsbad Oaks CC&Rs shall prevail.
ARTICLE 28
RIGHTS OF CITY
28.1 General Enforcement by the City. The City shall have the right, but not the
obligation, to enforce those covenants set forth in this Declaration in favor of, or in which the
City has an interest,
28.2 Failure of Association to Maintain Common Area and Easements. In the event
that the Operator fails to maintain the Common Areas or the easements created hereby in favor
of the Operator, as provided in Sections 5.1(b) and 14.1 above, 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 Operator, with a copy thereof to the
Owners setting forth with particularity the maintenance which the City finds to be required and
requesting that the same be carried out by the Operator within a period of thirty (30) days from
the giving of such notice. In the event that the Operator shall fail to carry out such maintenance
of the Common Areas and/or such easements within the period specified in 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 in Section 28.3 below.
28.3 Special Assessments Levied by the City. In the event that the City has performed
the necessary maintenance to either the Common Areas and/or the easements created hereby in
favor of the Operator, the City shall submit a written invoice to the Operator for all costs
incurred by the City to perform such maintenance of the Common Areas and/or such easements.
55
~LOSAl:89449.v3
24228
The City shall provide a copy of such invoice to each Owner, 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 pursuant to the provisions of this Section 28.3. Said invoice shall
be due and payable by the Operator within twenty (20) days of receipt by the Operator. If the
Operator 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 such invoice. Thereafter, the City may pursue collection from the Operator 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 Lot in the Project for an equal prorata 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 Lot against which such special assessment is levied. Each
Owner in the Project hereby vests the City with the right and power to levy such special
assessment, to impose a lien upon their respective Lot and to bring all legal actions and/or pursue
lien foreclosure procedures against any Owner and its respective Lot for purposes of collecting
such special assessment in accordance with the procedures set forth in Section 3.11 above.
56
~LOSAl:89449.v3
24229
IN WITNESS WHEREOF, Declarant has signed and made this Declaration as of the date
first above written.
DECLARANT: PACIFIC STARR-ESSEX CARLSBAD, LLC,
a California limited liability company
By. Pacific Starr-Carlsbad, LLC,
a California limited liability company,
its Manager
By: Pacific Starr-Promontory, LLC,
a California limited liability company,
its Manager
By: Pacific Starr Group, LLC,
a California limited liability company,
its Managing Memb
John F. Pipia, its Managing
Member
57
~LOSAl:89449.v3
24230
STATE OF CALIFORNIA )
COUNTY OF Us RnyJft* )
On Tbly |(p 2004, before me, A)./Ao/l-hkan &oncLoe_s . Notary Public,
ally appeared ZR>K^ P". r^pfe^personally appeared
personally known to me (pr proved to me on the basis of satisfactory evidence) to be the
„) whose namei!|6jQ$/a|£ subscribed to the within instrument and acknowledged to me that
slje/thfcy executed the same in(his>h$-/th$ir authorized capacity(iVjs), and that
signature^ on the instrument the person($ or the entity upon behalf of which the person^)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
~LOSAI:89449.v3
24231
NOTARY SEAL CERTIFICATION
(Government Code 27361.7)
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: n*
Commission Number:Date Commission Expiresires: Y& "I /
County Where Bond is Fileo _
Manufacturer or Vendor Number:
Ufe
Signature^
(Located on both sides of the notary seal border)
Firm Name (if applicable)
Place of Execution: San Diego Date:1 0\{ / ^l
RCC. Foim (W10.1 (Rav. 6/11AX3)
24232
EXHIBIT "A"
Legal Description of Property
LOTS 1 THROUGH 7, INCLUSIVE, OF PARCEL MAP NO. 19517, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON JUNE 30,2004 AS FILE NO. 2004-0614344.
~LOSAl:89449.v3
24233
EXHIBIT "B"
Final Map
(See attached)
~LOSAl:89449.v3
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RICK ENGINEERING COMPANY CMJFCOOR.: 3S6-I603 CT03-12
PARCEL MAP NO.
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CARLSBAD TRACT03-12
NON- TITLE INFORMA TfON SHEET
FINAL MAPNOreS
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SHEET 3 OF 3 SHEETS
RICK ENGINEERING COMPANYU«ir
fMJFCOOa.: 3B6-1603 CT03-12
24237
EXHIBIT "C"
Site Plan
(See attached)
~LOSA):89449.v3
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TENTATIVE MAP - PLANNED UNIT DEVELOPMENT
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24239
EXHrorr "D"
Maximum Building Area, Allocable Share, and Allocated Parking Spaces
Building Number
N/A
2717
2719
2721
2715
2713
2711
Lot Number
Lotl
Lot 2
Lot3
Lot4
Lot5
Lot 6
Lot 7
Maximum
Building Area
(Square Feet)
N/A
13,932
14,512
16,672
11,449
9,418
14,600
Allocated
Parking Spaces
N/A ,
30
22
29
37
24
59
Allocable Share
of Common
Expenses
N/A
17.3%
18.0%
20.7%
14.2%
11.7%
. 18.1%
Totals 80,583 Sq. Ft 201**100%
** Note that as of the date of this Declaration there are 24 unallocated parking spaces within the
Project, which unallocated parking spaces are for the use of all of the Lots as set forth in Section
8.2 of this Declaration. :
-LOSAl:89449.v3
24240
EXHIBIT "E"
Landscaping Requirements
A. TREES, SHRUBS & GROUND COVER
1. Trees will be lifted to a minimum height of twelve feet and shrubs will be trimmed to
insure a healthy appearance and to prevent interference with walkways.
2. All trees, shrubs and ground cover will be trimmed 4" away from all building, patio and
fence surfaces to insure a clean neat appearance.
3. Water shrubs and ground cover at a minimum level to maintain a healthy appearance.
4. Landscape Planters to be kept weed free.
5. Trees and shrubs will be fertilized every 90 days.
6. All ground covers will be edged and shrubs will be hedged on a regular basis to insure a
clean, neat appearance. t
1. Trash and debris from landscape planters will be removed weekly.
8. Insecticides will be applied to shrubs on an as needed basis, proper fertilization should
prevent most problems.
B. OFFSITE DISPOSAL
Tree, shrub and ground cover clippings, grass cuttings, trash & debris will be disposed of
off site.
C. IRRIGATION SYSTEM
Subject to the requirements of and obligations with respect to the Storm Water
Management Plan as contained in the Declaration, each Owner will maintain its irrigation
system, including timers, sprinkler heads and p.v.c. pipe. Damaged clocks, valves, backfiow,
irrigation main line and heads will be repaired or replaced.
D. FERTILIZATION
Each Owner will fertilize the landscaping as needed to maintain a healthy appearance.
GENERAL STANDARDS
Each Owner will maintain a first-class appearance with regard to the landscaping.
Maintenance of lawns, trees, shrubs, ground cover, irrigation system and fertilization will be
performed on a regularly scheduled basis. Annual color, tree trimming will be preformed at
regular intervals as needed.
-LOS A 1:89449. v3