HomeMy WebLinkAboutCT 74-21; LOKER PROPERTY; Tentative Map (CT)I-I -• -.,-" -,
CITY OF CARLSBAD
APPLICATION FOR APPROVAL OF A TENTATIVE TRACT MAP
AS PROVIDED FOR IN CHAPTER 20.12 OF THE
CARLSBAD MlJrnCIPAL CODE
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FILING FEE RECEIPT NO. goS--
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TENTATIVE TRACT NO. 74-21
TO THE PLANNING COMMISSION AND CITY COUNCIL
OF THE CITY OF CARLSBAD:
(=F o-r----"O-=f-=-f 1~' c-e--:-:-U s-e-')--
DATE If) -"?-7 {
I. Request is hereby made for approval of Tentative Tract No. 74-21
consisting of _1~8..:...6;...;."9o-± _____ gross acres, having __ 3_B. ____ lots,
being a proposed subdivision of land for property described as:
(Exact-Legal Description)
See Attached
genera 11 y 1 0 ca ted on the -r:-:-N_o-:-rt;-h--;::_~--;:----:-~;-;----;-r _______ _
• (North, South, East, West)
side of Palomar Airport Road
(Name of Street)
between El Camino Real
(Harne of Street)
and Ra ncho Sa nta Fe Road ---7(r~~a-n-le-of7'~S~t-re-e~t\)------------
TYPE OF SUCDIVISIOiI Industrial ~(R~c-s~i~d-en~t~i-u~l-,~C~o-nll-ne-r-c~ia~l;-,~I-nd~u-s~t-r-:-i-a"l\)---------~~--
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APptfr.AT~'ON FOR APPROVA~-" TtNTATI'TRAct ~1AP --
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PRESENT ZONE_'_P_-_M_' _ .. _. _____ _ PROPOSED ZONE._·_P_-M ___ ~ __ _
I the und e rs i 9 ned s ta te th a t -rT"":::::I:-a-;rni"T:"""~"":"T _____ the
{I, We} .. " (1 am, We are)
--r:;:;-_O_w_n-:::-e_r_' ._._ ....... _. _. _. '_'_'_'--:of the property described herein and hereby
C (Owner. Owners)
give My' .
(Ny, Our)
proposed tract map:
Name Donald ,p', Loker:' ..
authorization to the ~iling of· this
. (Typ~nte~ as ~on ~ecorded Deed)
Signature'" .. ~e;:./J· ;...~ ........ . ..
Name
--(r,T~y=p7e7d~0~r~P~rl~'n~t~e~d~a~s~sTh~ow~n~0~n-R~e~c~o~r~d~edTrD~e-e-'d~)-~------------------
Signature __________ .. _·_· __ · __ ·_··_·_·_· ._._._._._._ .. _._._. ___________________________ ___
Name ........
(Typed or Printed as shown on Recorded Deed)
Signature
Name
(Typed or Printed as shown on Recorded Deed)
Signature
Name
(Typed or Printed as shown on Recorded Deed)
Signature
Name
(Typed or Printed as shown on Recorded Deed)
Signature
Name and Address of Subdivider:
Lorna s' Sa nta Fe D'eveloprnent" Corporation
. P.O. Box AG Solana Beach, California 92075 755-1552
Name and address of Engineer or Licensed Land Surveyor:. No. 18174
Rick Engineering Company, 5620 FriaI5Road, San Diego, California 92110
L·yle F, Ga brielson
1. The source of water s upp ly _C_M---,WD _____________ -.:.. ________ _
2. Type of street improvements and utilities which the subdivider proposes to " ..
install-Carlsbad standard streets, gas and electric, telephone, water,
sewer and storm drainage, All utilities to be installed underground,
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',' . .. .. ~-. L. ~P~ttr.A;i6rl FOR APP!VAL~TENTATIV.RACT 11AP
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3. The method of sewage disposal,is 'gravitytoElCaminoReal,
using JAC'outfall,' City 'of Carlsbad.
·4. Proposed storm water sewer o'r other means of drainage (grade & siz(!) -----
Will·conform to "City" standards.
5. Protective covenants to be recorded
6. Proposed tree planting as approved by the City Planner
7. Proposed grading plan (when required) -will be a product of the tentative map
and will conform to "City" standards.
The adopted general plan of the City of Carlsbad recognizes the property .
described in this application for Industrial --r( R=-e-s-';=-d=-e-n-:-t -=-i a-=l=-,--=C-on-Ilm-e-r-c-=;-a-=-l -, -'~::-I!-d=-u-s-t r-,""" a-::l"-,-=E-:-tc--'--. )
use of land.
STATE OF ,CALIFORNIA
C01JNTY OF SAN DIEGO
CITY OF CARLSBAD
)
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AFFIDAVIT
SS
_..,-;:-~I~/.....:D::...::.o.:.:.na=.;l:.:d:....:..P..:.... -:;:,L:.:o:;.;.k:.re;.:;.r_......-____________ .. _, be; ng du 1 y S\'IOl'n
(I, We) (Name)
'd'epose and declare to the best of .....-_...:.m:.:...y!.-. __ --:knoY/ledge that the fore-
(my, our)
going is true and correct under the penalty of purjury:
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'PLItA;IO~' FOR J\PPROV~L~ErnATIVE tJ\CT HAP
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EXECUTED ATO~····:· ." c .
, ~e) . DATE .. 'IOL;t/7'~, .-.-. '. '.-': .:. '.':.'. '.': .. :'.' .... ', ,.
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OWNER AND/OR OWNER'S AUTHORIZED AGENT:
Donald P. Loker
m~p)2?~~
(Signature) .
2373 Woodacre Drive
(Mailing Address)
Oceanside, California
(City and State)
(Area Code) 71 tf. -7 S7 -3 t-iJe;
(Telephone Number)
SUBSCRIBED AND SWORN TO BEFORE'HE THIS ~~ DAYOF~
... . " (Notary Public)
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TO: APPLICANT. TENTATIVE MAPS BEING FILED C.RRENTLY t~ITH
QTHER APPLICATIONS (i.e. E.I.~., SPECIFIC PLAN, ZONE CHANGE, ETC.)
The Subdivision Map Act sets a fifty (50) day time restriction on the
processing of Tentative t·1aps. This time limit can only be extended by the mutual
concurrilnce of the applicant and the City.
By accepting applications for tentative maps concurrently with other applications,
in an attempt to speed up the overall process, the fifty (50) day time limit is often
exceeded.
If you wish to have your applications processed concurrently, the following ( :~:t:::~:m:~:~ :~:~~~;dW~~l t~:t a::::::n~o:~ :;;1 :::~~~n ~:/~~e C::~::t~:: ::/:~~il
\ ,311 ptior neCEfssary entitlements have been processed and approved.
'" I understand that the processing time required by the City on my
applications may exceed fifty (50) days and hereby waive this requirement. and
fu1'ly concur with any extensions of time that may be required to proper.ly review
a11 of my applications in order that the environmental impact report and any other
pretequisites to this application may be ptocessed concurrently.
(Date) ~ V~natre)
(Position) (Owner/Agent) ..
(Address )
(area code) (telephone no.)
FOR OFFICE USE ONLY:
(Case Number) -
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Recorded at request of and
when recorded mail to: •
DECLARATION OF COVENANTS AND RESTRICTIONS
WHEREAS, TITLE INSURANCE AND TRUST COMPANY, a
California corporation, under H. A. 409 (herein after called'Owner), is the
"Owner" of all that certain real property located in the City of Carlsbad,
County of San Diego, State of California, more particularly described in
Exhibit "A" attached hereto and incorporated herein by reference thereto
(the "Property"); and
WHEREAS, it is the desire and intentim of "Owner" to develop all
of the Property as an industrial center; and
WHEREAS, it is the desire and intentim of "Owner" to impose
upon the Property mutually beneficial restrictions under a general plan of
improvement for the benefit of all of said Property, the improvements thereon
and the futUre owners thereof.
NOVv', THEREFORE, "Owner" hereby declares that the Property is
held and shall be held, conveyed, hypothecated, encumbered, leased, rented,
used, occupied and improved, subject to the following limitations, restrictions
and covenants, all of which are declared and agreed to be in furtherance of a
plan for the subdivision, improvement and sale of the Property and all of
which are established and agreed upon for the purpose of enhancing and
perfecting the value, desirability and attractiveness of the Property and
every part thereof. All of the I imitations, covenants and restrictions shall
run with the Property and shall be binding on all parties having or acquiring
any right, title or interest in the Property made subject hereto or any part
thereof, and shall inure to the benefit of and bind each owner thereof and
their respective successors in interest, and are imposed upon said Property,
and each and every portion thereof as a servitude in favor of said Property
and each and every portion thereof as the dominant tenement, or tenements, all
as follows, to wit:
A. DEFINITIONS.
1 . "Approving Agent" shall mean:
(a) Title Insurance and Trust Co., under H. A. 409, or
its successor in title of all the Property.
(b) Any association (whether or not incorporated) organized
by a majority of the owners of r.ecord of the Property
or parts thereof for the purpose, among others, of
approving plans and granting variances as hereinafter
provided, in which membership is available to all such
owners without charge, provided "Owner" or Owner's"
Successor has granted to it of record the exclusive
right to approve plans and grant variances as herein-
after set forth which "Owner" agrees will be done by
it or ~IOwner's" Successor before ·!'Owner" or ·"Owner's"
Successor ceases to own any interest in the Property
if written request therefor "is received prior to that time.
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-• 2. "Site" shall mean an area of land in the same ownership
either shown as one lot m a recorded plan or, if not
so shown, described as the Site for one or more build-
ings by the owner in a recorded instrument, whether or
not in either case acquired at one time or previrusly
so shown as more than one lot, or shown cr described
for the purpcse of lease but not of conveyance as more
than one lot. If an easement or easements over any
portion or portions of a Site established by recorded
plan or recorded instrument then exist or exists or is or
are reserved by "Owner" for any purpose whatsoever,
the area of such portion or portions shall be included
in computing the area of that Site. If subsequent to
the establishment of a Site by recorded plan or re-
corded instrument, any portion or portions thereof
are for railroad, street, highway, utility or public
purpose taken by right of eminent domain, or deed in
I ieu thereof, or dedicated or conveyed pursuant to
reservation by "Owner", the area of such portion or por-
tions shall continue to be included thereafter in computing
the area of that Site.
3. IIDeclaration" shall mean this Declaration of Covenants
and Restrictions, as it may from time to time be amended
or supplemented.
4. "Restrictions" shall mean the covenants, conditions and
restrictions set forth in the Declaration.
B. RESTRICTIONS.
1. No building shall be constructed upon any Site:
(a) Within fifty'(50) feet measured at right angles
from the nearest edge of the right-of-way of
any abutting street in existence at the time
of such consturction;
(b) Every Site shall have side yards of not less than Twenty
(20) feet in depth except in the case of side yards
adjoining streets which shall be not less than thirty
(30) feet in depth.
(c) With exterior walls constructed other than of
tilt-up concrete, masonry, or equal material;
and the cmstruction of metal, prefabricated cr
butler-type buildings shall be prohibited; and
(d) With a roof having a difference in elevation of
more than three (3) feet unless approved in the
manner provided in Section C hereinbelow.
2. There shall be maintained on each Site only buildings,
paved walks, paved parking lots, paved driveways, lawn
and landscaping and natural growth in undisturbed areas,
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the construction and/or installation of which shall be
subject to the approval of the Approving Agent in accor-
dance with the provisions of this Declaration; provided,
however, that at least two-thirds (2/3) of the surface
of the required set-back area from streets shall be
maintained in lawns and provided further that natural
growth may remain on those portions of the Site side
and rear yard areas which have not been disturbed by
the construction of improvements on the Site. No tree
located within any Site having a trunk diameter of
more than three (3) inches measured three feet off the
ground shall be removed unless approved in writing by
the Approving Agent.
3. There shall be maintained on each Site faci 1 ities for
loading and unloading sufficient to serve the business
conducted thereon without using adj acent street therefor.
Such loading and unloading fad lities shall be screened
from view as required by the Ordinances cf the City of
Carlsbad.
4. Adequate off-street parking shall be provided pursuant to
the City of Carlsbad Ordinances to accommodate all
parking needs for employee, visitor and company
vehicles on the Site. The intent of this provision is to
eliminate the need for anyon-street parking. No parking
wi 11 be permitted in the front yard set back required by
the City of Carlsbad. No use shall be made cf any Site
which wi 11 attract parking in excess of the parking spaces
then available thereon. Net less than three percent (3%)
of the parking area of any Site shall contain landscaped
islands.
5. Each site shall be used only for manufacturing, pro-
cessing, storage, wholesale, office, laboratory, pro-
fessional and research and development activities; and
there shall not be permitted any junk or salvage yard
or any other use which will be offensive to the neigh-
borhood by reason of odor, fumes, dust, smc:ke, nose,
glare, heat, sound, vibration, electro-mechanical dis-
turbances, electro-magnetic disturbances, radiati01,
air or water pollution or wi 11 be hazardous by reason
of danger of fire or explosion. No use of the Site
shall be permitted which will result in the discharge
of toxic matters into any sewer system serving the
Site. Retai 1 uses shall be limited to sales of goods
and services reasonably required for the convenience
of occupants within the Property such as restaurants,
drug stores, barber and beauty shops, shoe repair
shops, cleaners, post offices, banks and autcrnobile
service stations; and no such retail uses shall be
undertaken unless and until the same shall have been
approved in the manner hereinafter provided. In no
case shall any uses be permitted which are not allowed
by the City of Carlsbad.
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• 6. T he exterior of all structures and all walks, drive-
ways, lawns and landscaping on each Site shall be main-
tained in good order, repair and condition; and all
exterior painted surfaces shall be maintained in first-
class condition and shall be repainted at least once in
every four (4) years.
7. Unless specifically approved in writing by the Approv-
ing Agent, no materials, supplies or equipment shall
be stored in any area on a Site except inside a closed
building or behind a sol id visual barrier, constructed
of material acceptable to the Approving Agent, which
screens such areas so that the stored items are not
visible to a person six (6) feet tall standing on any
part of the neighboring property cr public streets at
an elevation no greater than the elevation of the base
of the items being viewed. All roof-mrunted mechanical
eouipment, utility installations, duct work, radar e.quip-
ment, radio or television antenna or any other devices
which project vertically more than 1-1/2 feet above the
roof or roof parapet shall be screened by a sol id visual
barrier which is detailed cmsistent with the building.
In all cases, roof mounted equipment should comply with
all applicable City of Carlsbad building code requirements.
8. No buildings or structures shall be erected, or exterior
structural alterations or additions made on any Site
except pursuant to plans and specifications approved in
the manner hereinafter provided as to landscaping and
architectural conformity to an industrial center. The
requirement of approval set forth in this paragraph is
in addition to, and not in substitution for any and all
other restrictions herein contained.
9. All on-site utility transmission lines shall be placed
underground.
10. No exterior signs of any type which normally would be
visible from the neighboring properties or public
streets shall be placed or maintained on any Site or
building unless the same shall have been first approved
in writing by the Approving Agent and the City of Carlsbad
Planning Department. Said approval shall not be
unreasonably withheld provided that plans for
the proposed sign or signs and the location of the
same on the Site or building are submitted to the
Approving Agent and provided that the design, type and
location conform to any sign standards as may be then
generally established by the Approving Agent and in
effect with respect to the Property.
C. APPROVALS, VARIANCES AND WAIVERS.
1 . So long as there is an Approving Agent it shall have
the exclusive right to grant approvals required by the
Restrictions and to waive or vary the Restrictions in
particular respects whenever in its opinion such waiver
or variance will not be detrimental to the intent and
purpose of this Declaration.
2. After there ceases to be an Approving Agent the Owners
of record of the land in the Property abutting upon
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4.
5.
D.
each Site Sha~ have the exclusive righ~O grant ap-
provals required by the Restrictions and the owners
of record of two-thirds (2/3) in area of land in the
Property within five hundred (500) feet of each
Site (said area to be defined by a line parallel to
the boundaries of each Site and located five hundred
(500) feet therefrom) shall have the exclusive right
to waive or vary the Restrictions in particular re-
spects whenever in their opinion such waiver or vari-
ance will not be detrimental to the intent and purpose
of this Declaration. .
Any person having an interest in any Site may rely
upon any instrument of record signed by the Approving
Agent or after there ceases to be an Approving Agent
by the appropriate owners referred to above purporting
to gr~nt an approval or to waive or vary the Restric-
tions in particular respects.
Any co-nstruction, other than exterior signs, driveways,
parking areas, grading, landscaping, fences and screens,
completed for more than three (3) months shall be deemed
approved, unless prior to the expiration of such period
a suit for enforcement has been commenced and notice
thereof duly recorded. No owner of any Site shall be
responsible except for violations occurring while owner.
Ap~roval by the City of Carlsbad. Any amendment or
mo ification to this Declaration affecting the maintenance
obligations of the Declarant, shall require the prior
written approval of the City's Planning Director and City
Attorney of the City of Carlsbad.
ENFORCEMENT.
1. All of the provisions herein contained shall run with
the land and shall be enforceable at law and in equity.
2. So long as there is an Approving Agent it shall have
the exclusive right to enforce the p~ovisions hereof,
without liability for failure so to do, except that
~ach owner of record of land in the Property shall
have the right to enforce the provisions hereof then
applicable to any Site if the Approving Agent shall
fail so to do within thirty (30) days after written
request from any such owner.
3. After there ceases to be an Approving Agent, each Owner
of xecord of land in the Property shall have the right
to enforce the Restrictions-then applicable to any Site
without liability for £ailure so to do.
4. (a) In addition to the right to proceed in equity for
the enforcement of the Restrictions, in the event
that the Restrictions are violated or breached,
the Approving Agent may, without liability for
failure so to do, enter upon the Site of said
violation or breach-.and take whatever action it
may deem necessary to Bbate and remove -noncon-
forming uses or to 'otherwise effect compliance with .-
the Restrictions, at the expense of the owner of
said Site, provided that -the Approving Agent shall
have given to the owner-·.of said site at least sixty"
(60) days' written notice of its intention to do
so -and said owner of :said Site shall have failed
to correct said violation or breach; and in such
case said owner of said Site shall be responsible
to reimburse the Approving Agent forthwith upon
demand for all costs and expenses incurred in
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(b)
connection therewith ("Noncompliance Expenses")
in accordance with the provisions of subparagraph
D.4.(b) hereinbelow.
In order to provide for the implementation of the
provisions of subparagraph D.4.(a).above, each
owner of any Site within the Property by acceptance
of a deed or other conveyance therefor, whether or
not it shall be so expressed in any such deed or
other conveyance, is and shall be deemed to covenant
and agree to pay to the Approving Agent an assess-
ment for any Noncompliance Expenses incurred by the
Approving Agent in connection with such owner's
Site.
(1) The Approving Agent shall maintain accurate
books and records reflecting any Noncompliance
Expenses, and shall provide each owner of an
affected Site a statement with respect thereto.
Each affected owner shall pay any Noncompliance
Expenses applicable to such owner's Site within
10 days following t~e receipt of such statement.
If such statement is deposited in the United
States mail in the State of California, duly
certified or registered with postage prepaid and
addressed to the owner affected thereby at his
Site, the same shall be deemed received by such
Owner 72 hours after such deposit.
(2) Any Noncompliance Expenses assessments, together
with such interest thereon and costs of collection
thereof as provided hereinbelow, shall be a charge
on the land and shall be a continuing lien upon
the Site against which such assessments are ·made.
The lien shall become effective upon recordation
of a notice of claim of lien as provided herein.
This assessment, together with such interest and
costs, shall also be the personal obligation of
the person or entity who is the owner of such Site
at the time when the assessment, or any portion
thereof, fell due and shall bind his heirs,
devisees, personal representatives, successors
and assigns. However, the personal obligation
shall not pass to his successors in title unless
expressly assumed by them. No owner may waive
or otherwise escape personal liability for the
assessment provided herein by nonuse or abandon-
ment of his Site.
r (3) If any Noncompliance Expenses assessment or any
portion thereof is not paid within 10 days after
the due date it shall bear interest from the date
of delinquency at the then legal rate, and, in
addition to all other legal and equitable rights
or remedies, the Approving Agent may, at its op-
tion, bring an action at law against the owner
who is personally obligated to pay the same, or,
upon compliance with the .notice provisions set
forth hereinbelow, to foreclose the lien against
the Site, and there shall be added to the amount
of such assessment or any portion thereof, the
interest thereon, all .costs and expenses, includ-
ing reasonable attorney's fees, incurred by the
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" . • Approving Agent in collecting the delinquent
assessment. In lieu of judicially foreclos-
ing the lien, the Approving Agent, at its
option, may foreclose such lien by proceeding
under a power of sale as provided hereinbelow,
such a power of sale being given to the Approv-
ing Agent as to each and every Site for the
purpose of collecting assessments. Each
Owner vests in the Approving Agent, its suc-
cessors or assigns, the right and power to
bring all actions of law or lien foreclosure
against such owner or other owners for pur-
poses of collecting delinquent assessments.
(4) No action shall be brought to foreclose the
lien, or to proceed under the power of sale,
less than thirty (30) days after the date that
a notice of claim of lien, executed by the
Approving Agent, is recorded with the San
Diego county Recorder, said notice stating
the amount claimed (which may include interest
and cost of collection, including reasonable
attorney's fees), a good and sufficient legal
description of the Site being assessed, the
name of the record owner or reputed owner
thereof, and the name and address of the
Approving Agent as claimant. A copy of said
notice of claim shall be deposited in the
United States mail, certified or registered,
and postage prepaid, to the owner of the Site.
(5) Any such sale provided for above shall be con-
ducted in accordance with Sections '2924, 2924(b),
. and 2924(c) of the Civil Code of the State
(6)
( 7)
of California, applicable to the exercise of
powers of sale in mortgages and deeds of trust,
or in any other manner permitted or provided
by law. The Approving Agent shall 'have the
power to bid on the Site at the foreclosure
sale, and to acquire and hold, mortgage and
convey the same.
Upon the timely curing of any default for which
a notice of claim of lien was recorded by the
Approving Agent, the Approving Agent is hereby
authorized to file or record, as the case may
be, an appropriate release of such notice, upon
payment by the defaulting owner of a fee to be
determined by the Approving 'Agent, but not -to .
exceed Twenty-Five Dollars ($25.00), to cover
the costs of preparing and filing or recording
such release together with the payment of such
other costs, .interest or fees as shall have
been .incurred.
The assessment lien.and the rights to fore-
closure and sale thereunder shall be in addi-
tion to and not in substitution-for all other
rights and 'remedies'which-the Approving Agent
and its successors-and assigns may have here-
under and by law.
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(8) The lien of the Noncompliance Expenses assess-
ments provided for herein shall be subO'"'dinate
to the lien of any deec;l of trust or mO'"'tgage
now or hereafter placed upon any of the Sites
within the Property subject to such assessments;
provided, however, that such subordination shall
apply Oily to the assessments which have become
due and payable prior to a sale or transfer of
such Site pursuant to a decree of foreclosure,
or any other proceeding in lieu of foreclosure.
Such sale or transfer shall not relieve such
Site from liability for any assessments there-
after becoming due, nor from the lien if any
such subsequent assessment.
(c) The Approving Agent shall have the right to prose-
cute a proceeding at law or in equity against any
person or persons who have violated or are attempt-
ing to violate any if the Restrictims, to enjoin
or prevent them from doing so, to cause said vio-
lation to be remedied and/or to recover damages
for said violation.
(d) The result of every action 0'"' omission wher~by the
Restrictims are violated in whole or in part is
hereby declared to be and to constitute a nuisance,
and every remedy allowed by law or equity in nuis-
ance shall be available to the Approving Agent.
(e) In legal or equitable proceedings to enforce or
to restr-ain a violation of the Restrictions or
any provisions hereof, the losing party or parties
shall pay the attorneys' fees of the prevailing
party or parties in such amount as may be fixed
by the court in such proceedings.
(f) All remedies provided herein or at law or in equity
shall be cumulative and not exclusive.
(g) Failure by the Approving ~gent to enforce the Re-
strictions or any provision herein cmtained shall
in no event be deemed a waiver of the right to
do so thereafter.
(h) The Restrictions are enforceable to the extent
not prc:hibited by applicable statute, ordinance,
regulation or other law. Invalidation of any me
of the Restrictions or any provision herein con-
tained by judgment or Court order shall net
affect any other Restr i ction or other provisions,
each of which shall remain in full force and
effect.
5. The Restrictions shall continue to remain in full force
and effect at all times with respect to all the Prop-
erty and each part thereof, now and hereafter made sub-
ject thereto (subject, however to the right to amend
and repeal as provided for herein) for a term of thirty
(30) years from the date this Declaratim is recorded.
However, unless within one (1) year prior to the expi-
ration of said thirty (30) year term there shall be
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6.
• • recorded an instrument conforming to the provisions of
paragraph 6 hereinbelow directing tha termination of
the Restrictions, the Restrictions as in effect im-
mediately prior to the expiration date of said thirty
(30) year term shall be continued automatically with-
out any further notice for an additional period of
five (5) years and thereafter for successive terms
of five (5) years unless within one (1) year prior
to the expiration of any such five (5) year period
the Restrictions are terminated as set forth below
in paragraph 6.
This Declaration, the Restrictions or any prOV1S10n
contained herein may be terminated, extended, modi-
fied or amended as to the whole Property or any
portion thereof with the written consent of the owners
of seventy-five percent (75%) of the Property based on
the number of square feet of the Property owned as
compared to the total number of square feet of the
Property subject to the Restrictions, with each owner
receiving one vote for each square foot of Property
owne~; provided, however, that so long as the Approving
Agent owns at least twenty-five percent (25%) of the
Prop~rty subject to the Restrictions or for a period
of fifteen (15) years from the effective date hereof,
whichever period is longer, no such termlnation, ex-
tension, modification or amendment shall be effective
without the written consent of the Approving Agent
thereto. No such termination, extension, modification
or amendment shall be effective until a proper instru-
ment in writing has been executed and acknowledged and
recorded in the County of San Diego.
70 Enforcement by the City of Carlsbad. The City of
Carlsbad may independently enforce those portions of the
,Declaration which directly relate to the conditions,
duties or obligations required or imposed by Carlsbad
Tract CT 74-21. In the event the City elects to seek
enforcement, or in the event of a breach of any duty or
interference 'with any of the rights or benefits herein
established the City Manager may give written notice of such
breach or interference to the Declarant or the Approving
Agent together with a written demand to remedy the breach
or interference by enforcing the Declaration. If the
Declarant or the Approving Agent refuse to do so, or fail
to take appropriate action within ninety (90) days nf the
receipt of said written notice, upon a resolution o'f the
City Council of said City, the City shall have the full power to
enforce the Declaration, including without limitation the power
to assess, to lien, and to foreclose, in respect to the matters
set forth in the notice. Any-funds collected by the City shall
be applied, after deducting expenses of enforcement, to correct
the breach of interference, and any excess funds shall be
applied for the benefit of the Declarant or the Approving
Agent for the reimbursement of any expenses incurred.
EXECUTED this day of ___________________ , 1982.
TITLE INSURANCE AND TRUST CO.,
UNDERH. A.409
By ______________________________ ___
By ____________________________ __
-9-
"-. Requested By Record1ng d d Mail To: And When Recor e
. Development Company Ka1ser . rt Road, 2121 Palomar A1rpo
O Box 308 P.. CA 92008 Carlsbad, 1 Counsel . . Lega Attent10n.
Ste. 201
ARATION OF PROTECTIVE COVENANTS DECL
DEE111086 BPCCR4
FOR
AD OAKS BUSINESS CENTER CARLSB
RESTATED
, 1986 November __
TABLE OF CONTENTS
PREAMBLE. • • . • • • • • • • • . • . • • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • . • • • • . • • • • • • • • • • • . • 1
ARTICLE I
ARTICLE II
ARTICLE III
ARTICLE IV
ARTICLE V
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PROPERTY SUBJECT TO THIS DECLARATION •••.•••••••••••••••.•• 6
THE ASSOCIATION........................................... 7
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS •••••••••..••••••• 8
ARCHITECTURAL AND DEVELOPMENT REVIEW COMMITTEE •••.••••••.• 9
ARTICLE VI RESERVATION OF EASEMENTS •.••.••.•••..••••••••••••.•••••••• 11
ARTICLE VII REGULATION OF IMPROVEMENTS •.•.•.•••••••••••••.•••••••••••• 12
ARTICLE VIII LAND CLASSIFICATION, PERMITTED USES AND RESTRICTIONS •••••• 19
ARTICLE IX FUNDS AND ASSESSMENTS..................................... 23
ARTICLE X DESTRUCTION OF BUSINESS CENTER •••.•.••••••••••..••.••••••• 29
ARTICLE XI DURATION, MODIFICATION AND REPEAL •.•.••..•••••••••.••••..• 30
ARTICLE XII ENFORCEMENT. . • . . • • • . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . • • . .. 31
ARTICLE XIII MISCELLANEOUS PROVISIONS ••••.•••••••••••••••••••.••••••••• 33
EXHIBIT "A" DESCRIPTION OF REAL PROPERTY
EXHIBIT "A-I" DESCRIPTION OF ANNEXABLE PROPERTY
EXHIBIT "A-2" PLAT DEPICTING ANNEXABLE PROPERTY
EXHIBIT "B" SCHEDULE OF GROSS ACREAGE OF LOTS
EXHIBIT "c" DESCRIPTION OF LANDSCAPE MAINTENANCE AREAS
EXHIBIT "C-l" PLAT DEPICTING LANDSCAPE MAINTENANCE AREAS
EXHIBIT "D" LANDSCAPE ENTRY TREATMENT AREAS
EXHIBIT "E" LANDSCAPE ACCESS AREAS
EXHIBIT "F" PLAT DEPICTING STORM DRAIN SYSTEM
EXHIBIT "G" DESCRIPTION OF ADJACENT OWNERS PROPERTY
DEE111086
DECLARATION OF PROTECTIVE COVENANTS
FOR
CARLSBAD OAKS BUSINESS CENTER
RESTATED
PREAMBLE
THIS DECLARATION OF PROTECTIVE COVENANTS FOR CARLSBAD OAKS BUSINESS CENTER
RESTATED ("Declaration") is made on November , 1986, by KAISER DEVELOPMENT
COMPANY, a California corporation ("Declarant'ii"')as owner of the real property
located in the City of Carlsbad, County of San Diego, State of California,
described in Exhibit "A" which is attached hereto and incorporated herein by this
reference.
The property described in Exhibit "A" (the "Property") is subject to this
Declaration and will be known as Carlsbad Oaks Business Center (the "Business
Center").
WITNESSETH
WHEREAS, Declarant did heretofore under date of October 9, 1985, make a
certain Declaration of Protective Covenants For Carlsbad Oaks Business Center
("Prior Declaration") which was recorded in the Official Records of San Diego
County, California on October 11, 1985 as Document No. 85-378668;
WHEREAS, said Prior Declaration covers the entire Business Center;
WHEREAS, said Prior Declaration provides for the amendment thereof by
Declarant alone until such time as Declarant has conveyed seventy-five percent
(75%) of all Lots to Property Owners other than Declarant;
WHEREAS, Declarant is the present owner of more than seventy-five percent
(75%) of all Lots in the Business Center;
WHEREAS, Declarant desires to amend and restate in full the Prior
Declaration as hereinafter provided;
NOW, THEREFORE, the Prior Declaration is hereby amended, restated and
superceded by this Declaration, in full, as follows: Declarant hereby declares
that the Business Center (as defined in Article I of this Declaration) is being
developed as a planned commercial and industrial complex. The design and
development of the Business Center shall be subject to this Declaration and the
Architectural and Development Guidelines promulgated hereunder. This Declaration
is designed to complement and supplement local government and municipal
regulations, and where conflicts occur, the most rigid requirements shall
prevail. It is assumed that the users of sites in the Business Center will be
motivated to preserve the high quality of the Business Center through mutual
cooperation and by enforcing not only the letter, but the spirit of this
Declaration.
DEEllI086 1
ARTICLE I
DEFINITIONS
1. Unless the context otherwise specified, each term defined in this Article I
shall, for all purposes of this Declaration, have the meaning herein specified.
1.1 Annexed Property. The term "Annexed Property" shall mean and refer to
any and all real property (including all improvements thereon) which is annexed
to the Property pursuant to the Declaration. The Annexable Property that may be
annexed to the Property is described in Exhibit "A-I" and depicted in Exhibit
"A-2" attached hereto.
1.2 Application. The term "Application" shall mean and refer to any plans
and specifications or other documentation required to be submitted to the
Architectural Review and Development Committee pursuant to the provisions of
Article VII.
1.3 Architect. The term "Architect" shall mean a person holding a
certificate to practice architecture in the State of California under authority
of Division 3, Chapter 3 of the Business and Professions Code of the State of
California or any successor legislation thereto.
1.4 Architectural and Development Guidelines. The term "Architectural and
Development Guidelines" shall mean the guidelines which shall be prepared and
issued from time to time by the Committee for the purpose of assisting users in
preparing buildings, landscaping, site development, and other plans and other
materials (including designs for signs and the like) which are subject to review
by the Architectural Review and Development Committee pursuant to this
Declaration.
1.5 Architectural Review and Development Committee or Committee. The terms
"Architectural Review and Development Committee" or "Committee" shall mean the
Architectural and Development Review Committee created pursuant to Article VI
below.
1.6 Articles of Incorporation. The term "Articles" shall mean the Articles
of Incorporation of the Association, as they may from time to time be amended,
which are or shall be filed in the Office of the Secretary of State of the State
of California.
1.7 Association. The term "Association" shall mean and refer to the
Carlsbad Oaks Business Center Association, a California non-profit mutual benefit
corporation, its successors and assigns.
1.8 Beneficiary. The term "Beneficiary" shall mean a mortgagee under a
mortgage as well as a beneficiary under a deed of trust.
DEEll1086 2
1.9 Board or Board of Directors. The term "Board" or "Board of Directors"
may be used interchangeably herein and shall mean and refer to the Board of
Directors of the Association, as the same may, from time to time, be constituted.
1.10 Business Center. The term "Business Center" shall mean the real
property described in Exhibit "A" and the Improvements situated thereon, as such
real property may be augmented or reduced pursuant to the provisions of this
Declaration.
1.11 By-laws. The term "By-laws" shall mean the By-laws of the Association,
as they may from time to time be amended.
1.12 Committee. The term "Committee" shall mean the Architectural and
Development Review Committee for the Business Center.
1.13 Declarant. The term "Declarant" shall mean KAISER DEVELOPMENT COMPANY,
a California corporation ("KAISER") or a related corporate entity in which KAISER
owns at least fifty percent (50%) of the stock, and, to the extent provided
herein, its successors and assigns if such successors and assigns acquire or hold
title to any part or all of the real property subject to this Declaration, and
are expressly named as successor Declarant in a document executed by KAISER, or a
successor Declarant, and recorded with the County Recorder for San Diego County
assigning the rights and duties of Declarant to such successor Declarant, with
such successor Declarant accepting and assuming the assignment of such rights and
duties. A successor Declarant shall also be deemed to include the beneficiary
under any deed of trust securing an obligation from a then existing Declarant
encumbering all or any portion of the Property, which beneficiary has acquired
any such property by foreclosure, power of sale or deed in lieu of such
foreclosure or sale.
1.14 Declaration. The term "Declaration" shall mean this Declaration of
Protective Covenants for the Business Center, as it may from time to time be
amended or supplemented.
1.15 Deed of Trust. The term "Deed of Trust" or "Trust Deed" shall mean a
mortgage as well as a deed of trust.
1.16 Effective Date. The term "Effective Date" of this Declaration shall
mean the date the Declaration is recorded in the Office of the county Recorder of
San Diego County, California.
1.17 File. The term "File" shall mean, with reference to any subdivision
map, or any plat of survey, the filing for record of said map or plat in the
Office of the County Recorder of San Diego County, California.
1.18 Gross Acreage or Gross Acres. The terms "Gross Acreage" or "Gross
Acres," for the purpose of establishing the number of votes for each Lot and the
cost assessment for each Lot, shall mean and refer to the number of acres for
each Lot set forth on Exhibit "B" attached hereto and incorporated herein. Gross
DEE111086 3
Acres for the real property which may be annexed to this Declaration shall be
determined by Declarant at the time such property is annexed into the Business
Center and shall be set forth in the notice of annexation described in Section
2.5 below.
1.19 Improvements. The term "Improvements" shall mean buildings,
outbuildings, underground installations, slope and grade alterations, roads,
curbs, gutters, storm drains, utilities, driveways, parking areas, fences,
screening walls and barriers, retaining walls, stairs, decks, windbreaks,
plantings, planted trees and shrubs, sidewalks, poles, signs, loading areas,
docks and all other structures, land development or landscaping improvements of
every type and kind.
1.20 Landscape Maintenance Areas. The term "Landscape Maintenance Areas"
shall mean and refer to those portions of the Property described in Exhibit "c"
attached hereto and incorporated herein on which are located plantings, ground
covers, planted trees, shrubs, other plant materials, walls, sidewalks,
embellished pavement, signs, sculptures, and other landscaping improvements over
which the Association shall have an easement and which are to be installed and
maintained by the Association in accordance with the provisions of this
Declaration. The Landscape Maintenance Areas of the Property are further
depicted in the drawings marked on Exhibit "C-l" attached hereto and incorporated
herein. If other real property is later annexed to this Declaration, the
Landscape Maintenance Areas shall then include such portions of the Annexed
Property as are annexed as Landscape Maintenance Areas.
1.21 Landscape Installation Areas. The term "Landscape Installation Areas"
shall mean and refer to those portions of each Lot on which each Property Owner
shall be responsible for installing and maintaining landscaping in accordance
with the plans which shall have been submitted by the Property Owner to the
Declarant and which shall have been approved by the Declarant.
1.22 Landscape Entry Treatment Areas. The term "Landscape Entry Treatment
Areas" shall mean and refer to those areas of each Lot which may be set aside for
purposes of permanently identifying the Business Center and shall be maintained
by the Association in accordance with the provisions of this Declaration. The
Landscape Entry Treatment Areas are approximately fifty feet (50') by fifty feet
(50') each and are described on Exhibit "D" attached hereto and incorporated
herein.
1.23 Landscape Access Areas. The term "Landscape Access Areas" shall mean
and refer to the area of the Landscape Maintenance Areas and is described on
Exhibit "E" attached hereto and incorporated herein which shall be used for
access by Property Owners, Lessees, Licensees or Occupants over the Landscape
Maintenance Areas and which shall be maintained by the Association in accordance
with the provisions of this Declaration.
1.24 Lessee. The term "Lessee" shall mean the owner of a leasehold interest
in a part or all of the Business Center.
DEEllI086 4
1.25 Licensee. The term "Licensee" shall mean any person or entity having
any right or rights in respect to a part of the business Center pursuant to a
license granted by the Owner of such part of the Business Center.
1.26 Lot. The term "Lot" shall mean and refer to each legal lot of the
business Center as described on Exhibit "A" or included within any Annexed
Property described on Exhibit "A-I". In the event any of the Property. now or
hereafter subject to this Declaration is split. resubdivided. or a line or
boundary adjustment of one (1) or more Lots. or merger of two (2) or more Lots is
completed. then each of the Lots thus created shall be deemed to be included
within the definition of Lot.
1.27 Maintenance and Operation Account. The term "Maintenance and Operation
Account" shall mean an account into which the Board shall deposit funds for
maintenance and operation assessments.
1.28 Member. The term "Member" shall mean and refer to every person or
entity who is a Member of the Association pursuant to Article IV hereof.
1.29 Mortgage. The term "Mortgage" shall mean any duly recorded mortgage or
deed of trust encumbering a Lot in the Business Center.
1.30 Mortgagee. The term "Mortgagee" shall mean a beneficiary under. or a
holder of. a deed of trust or a mortgage.
1.31 Occupant. The term "Occupant" shall mean any person or entity who
occupies a part of the Business Center and is not a Property Owner. Lessee or
Licensee.
1.32 Property Owner or Owner. The terms "Property Owner" or "Owner" shall
mean the legal or beneficial Owner of a part or all of the Business Center.
1.33 Record. Recorded or Recordation. The terms "record." "recorded." or
"recordation" shall mean. with respect to any document. the recordation of said
document in the Office of the county Recorder of San Diego County. California.
1.34 Rules and Regulations.. The term "Rules and Regulations" shall mean and
refer to those Rules and Regulations adopted by the Association or its Board.
including any amendments or additions thereto.
1.35 Secured Party. The term "Secured Party" shall mean a secured party
under a security instrument.
1.36 Security Instruments. The term "security instrument shall
interchangeably mean a "Deed to Secure debt." "Mortgage" or "Deed of Trust."
1.37 Storm Drain System. The term "Storm Drain System" shall mean and refer
to the series of pipes. culvert structures. catch basins and open channels. and
all attachments or hookups designed to convey drainage through the Business
Center. the general location and components of which are described on Exhibit "F"
attached hereto and incorporated herein.
DEEllI086 5
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
2. General Declaration Subjecting the Business Center to this Declaration and
entitling the City, Association Owners, Licensees, Occupants and Lessees to the
Benefit Thereof.
2.1 Declarant hereby declares that the Business Center and every part
thereof is and shall be owned (legally and beneficially), leased, or transferred,
developed, improved, built upon or otherwise used, subject to this Declaration.
This Declaration is declared and agreed to be in furtherance of an overall plan
by Declarant and the City for the development, improvement, sale and use of the
Business Center and is established for the purpose of enhancing and protecting
the value, desirability and attractiveness of the Business Center and every part
thereof.
2.2 Covenants Running With The Land. Declarant hereby declares that the
Business Center is now held, and shall hereafter be held, conveyed, leased,
occupied, operated and used, subject to the easements, restrictions, conditions,
covenants and agreements herein set forth, each and all of which are for, and
shall inure to, the benefit of and pass with each and every part or Lot of the
Property and shall apply to and bind the heirs, successors and assigns of any
Owner or Lessee thereof, and each of which shall constitute covenants running
with the land between the respective Owners of such parts, and Lots, and create
privity of contract and of estate between all grantees of any such part, or Lot
and their heirs, successors and assigns.
2.3 Splits or Resubdivision of Lots. No splits or resubdivision of any of
the Lots contained in the description set forth in Exhibit "A" and shown on the
final map as recorded, shall be permitted without the consent of the
Architectural Review and Development Committee in writing. In the event a split
or resubdivision of one or more Lots is so approved, each of the Lots created as
a result of the lot split or resubdivision, shall be subject and bound by this
Declaration, the Architectural and Development Guidelines, and existing laws and
regulations of the City of Carlsbad, San Diego County, State of California.
2.4 Declarant's Power. Declarant may, at any time during the pendency of
this Declaration only, add all or a portion of any land now or hereafter which is
owned by Declarant to the property which is covered by this Declaration, and upon
recordation of a notice of annexation of real property containing at least the
provisions set forth in Section 2.5 of this Article II, the provisions of this
Declaration specified in said notice shall apply to such annexed Property in the
same manner as if it were originally covered by this Declaration. Thereafter, to
the extent this Declaration is made applicable thereto, the rights, powers and
responsibilities of Declarant and the Owners, Lessees, Licensees and Occupants of
Lots within such Annexed Property shall be the same as in the case of the land
described in Exhibit "A."
2.5 Notice of Annexation of Land. The notice of annexation of real
property referred to in Section 2.4 above shall contain at least the following
provisions:
DEEll1086 6
a. A reference to this Declaration stating the date of recording
hereof and the book or books of the records of San Diego County, California, and
the page numbers where this Declaration is recorded;
b. A statement that the provisions of this Declaration, or some
specified part thereof, shall apply to such Annexed Property;
c, An exact description of such Annexed Property; and
d. Such other or different covenants, conditions, and restrictions as
Declarant shall, in its discretion, specify to regulate and control the use,
occupancy and improvement of such Annexed Property.
ARTICLE III
THE ASSOCIATION
3.1 The Organization. The Association is a nonprofit mutual benefit
corporation, formed under the Nonprofit Mutual Benefit Law of California, charged
with the duties and empowered with the rights set forth herein, in the By-laws
and in the Articles. Its affairs shall be governed by this Declaration, the
Articles and the By-laws. On the close and recording of the first Lot sale to an
Owner, the Association shall be charged with the duties and invested with the
powers set forth in the Articles, the By-laws and this Declaration, including,
but not limited to, control and maintenance of the Landscape Maintenance Areas,
Landscape Entry Treatment Areas, Landscape Access Areas and the Storm Drain
Areas.
3.2 Powers. The Association shall have all the powers, rights and duties,
in addition to those provided elsewhere in this Declaration, the Articles of
Incorporation and the By-laws, if any, to: (i) commence and maintain actions or
restrain and enjoin any actual or threatened breach of this Declaration and
enforce by mandatory injunction or otherwise all of the provisions of this
Declaration; (ii) pay taxes, special assessments and other liabilities which are
or would become a lien on the Property; (iii) levy assessments and perfect and
enforce liens as hereinafter provided; (iv) enter into contracts and perform the
duties set forth herein, including but not limited to maintenance and repair of
the Landscape Maintenance Areas and Storm Drain System; (v) adopt, amend and
repeal rules and regulations as it deems reasonable; (vi) enter onto the Lots to
enforce the provisions of this Declaration in accordance with the provisions of
Article XII; and (vii) borrow funds to pay costs of operation, secured by
assessment revenues due for succeeding years or by assignment of pledge of rights
against delinquent Property Owners; provided, however, that the majority vote of
the Property Owners, including Declarant, shall be required to borrow in excess
of Ten Thousand Dollars ($10,000.00) per annum multiplied by the number of Lots
in the business center. Said borrowing may be from Declarant should Declarant
determine to advance funds for which Declarant shall receive no more than the
published Bank of America prime rate plus one percent (1%) as interest.
3.3 Personal Liability. No Member of the Board, or of any committee of the
Association, or any officer of the Association, or any manager, or Declarant, or
DEE111086 7
7.2.5.6 The parking requirement and traffic circulation
patters may be modified by the Committee as to any particular Lot as a condition
to the approval of plans and specifications.
7.2.5.7 No parking will be approved or permitted within the
Landscape Maintenance Areas without the written approval of the Committee.
7.2.6 Storage and Loading Areas.
7.2.6.1 Loading doors, docks, facilities or other service
areas shall be set back in accordance with Subsection 7.2.2.3 and shall be
screened from view from the street.
7.2.6.2 No materials, supplies, merchandise or equipment,
including company-owned or operated trucks, shall be stored in any area on a Lot
except inside a closed building, or behind a visual barrier screening such areas
so that they are not visible from the neighboring Lots or public streets.
7.2.6.3 Loading doors, docks, facilities and other service
areas shall be adequately screened with landscaping, fencing or concrete walls to
minimize the effect of their appearance from any street, freeway, expressway or
neighboring property.
7.2.7 Exterior Lighting. Exterior lighting shall conform to the
Architectural and Development Guidelines and not overwash property lines unless
approved by the Committee, nor be of such intensity, size, color or location as
to be a nuisance to other Property Owners or the public.
7.2.8 Utility Lines and Antennas. No sewer, drainage or utility
lines or wires or other devices for the communication or transmission of electric
current, power, or signals including telephone, television, microwave or radio
signals, shall be constructed, placed or maintained anywhere in or upon any Lot
other than within buildings or structures unless the same shall be contained in
conduits or cables constructed, placed or maintained underground or concealed in
or under building or other structures. No antenna or disc for the transmission
or reception of telephone, television, microwave or radio signals shall be placed
on any building or other Improvement on any Lot unless (i) such antenna shall be
so located that it cannot be seen from any point at the ground level of such Lot
or adjacent streets or Palomar Airport Road and (ii) the consent of the Committee
shall first have been obtained. Nothing contained herein shall be deemed to
forbid the erection or use of temporary power or telephone facilities incidental
to the construction or repair of Improvements on any Lot.
7.2.9 Refuse Collection Areas. All outdoor refuse collection areas
shall be located at the rear of the Lot, and in no case within one hundred (100)
feet from any property line adjacent to a public street. Such areas shall be
completely enclosed and screened by a wall constructed of durable material not
less than six (6) feet in height, a solid wood door, and by appropriate
landscaping. All such areas shall have concrete floors and shall be sufficient
in size to contain all refuse generated by each Lot, but in no event smaller than
six (6) feet by eight (8) feet unless otherwise specified by the City of Carlsbad
DEE111086 18
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LEGAL DESCRIPTION
EASEMENT FOR LANDSCAPE MAINTENANCE AREAS
CARLSBAD OAKS BUSINESS CENTER
CARLSBAD TRACT 74-21
That portion of Lots 1 through 22, inclusive, of CARLSBAD
TRACT NO. 74-21, in the City of Carlsbad, County of San
Diego, State of California, according to Map thereof N
10372, filed in the Office of the County Recorder of S~~
ryiego County, April 13, 1982. described as follows:
Parcell
A strip of land 50.00 feet in width. lying northerly of the following described
line:
BEGINNING at the southwesterly corner of Lot 1 on said map of Tract 74-21; thence
north 85°07'03" east a distance of 341.05 feet to the beginning of a tangent
curve concave northwesterly and having a radi~s of 25.00 feet; thence along said
curve a distance of 39.27 feet to a point hereinafter referred to as Point "A".
COMMENCING at the southwesterly corner of Parcell; north 85°02'03" east a
distance of 404.63 feet; thence north '4° 57' 57" west a distance of 87.00 feet;
thence North 85°02'03" east a distance of 36.00 feet to the TRUE POINT OF
BEGINNING of a tangent curve concave northeasterly and having a radius of 25.00
feet; thence along said curve 89.27 feet through a central angle of 90°00'00";
thence tangent from said curve north 85°02'03" east a distance of 124.06 feet to
the beginning of a tangent curve concave southerly and having a radius of 3063
feet; thence along said curve easterly 1151.10 feet through a central angle of
21°31'56"; thence tang'ent from said curve north 73°26'01" west 452.24 feet to the
beginning of a tangent curve concave northerly having a radius of 2937 feet;
thence along said curve 219.96 feet through a central angle of 4°17'28" to the
beginning of a tangent curve of radius 25.00 feet; thence along said curve 39.27
feet through a central angle of 90°00'00" to a point hereinafter referred
to as "B".
A strip of land 50.00 feet in width. lying westerly of the following described
line:
BEGINNING at Point "B" described hereinbefore in Parcell; thence north 10°46'47"
east a distance of 113.37 feet; thence north 3°32'52" east a distance of 192.51
feet.
BEGINNING at the northeasterly corner of Lot 14 south along a tangent curve
concave west having a radius of 758 feet; thence along said curve a distance of
257.57 feet through a central angle of 19°28'10"; thence south 3°32'52" west a
distance of 134.20 feet.
EXHIBIT "c"
A strip of land 35.00 feet in width lying westerly of the following described
line:
BEGINNING at Point "A" described hereinbefore in Lot 1; thence north 4°57'57"
west a distance of 459.65 feet to the beginning of a tangent curve concave
easterly of radius 536.00 feet; thence along said curve a distance of 338.45 feet
through a central angle of 36°10'44"; thence north 31°12'47" east a distance of
275.74 feet to the beginning of a tangent curve concave southeasterly and having
a radius of 536.00 feet; thence along said curve a distance of 47.49 feet through
a central angle of 5°64'34" to a point hereinafter referred to as Point "e".
A strip of land 35.00 feet in width, lying southerly of the following described
line:
BEGINNING at Point "e" described hereinbefore in Lot 3; thence along a tangent
curve concave west having a radius of 20.00 feet; thence along said curve a
distance of 29.40 feet through a central angle of 84°13'09"; thence north
47°55'48" west a distance of 163.84 feet to the beginning of a tangent curve
concave southeasterly having a radius of 60.00 feet; thence along said curve a
distance of 105.82 feet through a central angle of 101°03'20" to a point
hereinafter referred to as Point "D".
A strip of land 35.00 feet in width lying northerly of the following described
line:
BEGINNING at.Point D described hereinbefore in Lot 4; thence along a tangent
curve concave southwesterly having a radius of 60.00 feet; thence along said
curve a distance of 167.57 feet through a central angle of 160°00'57" to the
beginning of a tangent curve concave north having a radius of 20.00 feet; thence
along said curve a distance of 29.40 feet through a central angle of 84°13'09" to
the beginning of a tangent curve concave south having a radius of 536.00 feet;
thence along said curve a distance of 958.30 feet through a central angle of
102°26'15"; thence south 29°42'43" east a distance of 257.79 feet to the
beginning of a tangent curve concave north having a radius of 20.00 feet; thence
along said curve a distance of 31.42 feet through a central angle of 90°00'00";
thence north 60°17'17" east a distance of 149.01 feet to the beginning of a
tangent curve concave northwesterly having a radius of 40.00 feet; thence along
said curve a distance of 28.30 feet through a central angle of 40°32'09" to the
beginning of a tangent curve concave south having a radius of 60.00 feet; thence
along said curve a distance of 128.64 feet through a central angle of 122°50'45"
to a point hereinafter referred to as "E".
A strip of land 35.00 feet in width, lying northeasterly of the following
described line:
BEGINNING at Point "E" described hereinbefore; thence along a tangent curve
concave west having a radius of 60.00 feet; thence along sa.id curve a distance of
144.75 feet through a central angle of 138°13'33" to the beginning of a tangent
curve concave south having a radius of 40.00 feet; thence along said curve a
distance of 28.30 feet through a central angle of 40032'.0~'; thence south
60°17'17" west a distance of 149.01 feet to the beginning of a tangent curve
concave east having a radius of 20.00 feet; thence along said curve a distance of
EXHIBIT "e"
31.42 feet through a central angle of 90°00'00"; thence south 29°42'43" east a
distance of 282.07 feet to the beginning of a tangent curve concave northerly
having a radius of 364.00 feet; thence along said curve 360.47 feet through a
central angle of 56°44'25"; thence south 86°27'08" east a distance of 356.63 feet
to the beginning of a tangent curve concave northwesterly having a radius of
25.00 feet; thence along said curve a distance of 39.27 feet through a central
angle of 90°00'00".
A strip of land 35.00 feet in width, lying easterly of the following described
line:
COMMENCING at the southwesterly corner of Parcel; north 85°02'03" east a distance
of 404.63 feet; thence north 4°57'57" west a distance'of 87.00 feet; thence north
85°02'03" east a distance of 36.00 feet to the TRUE POINT OF BEGINNING; thence
north 4°57'57" west a distance of 459.65 feet to the beginning of a tangent curve
concave easterly having a radius of 464.00 feet; thence along said curve a
distance of 292.99 feet through a central angle of 36°10'44"; thence north
31°12'47" east a distance of 275.74 feet to a point hereinafter referred to as
Point "F".
A strip of land 35.00 feet in width, lying southerly of the following described
line:
BEGINNING at Point "F" described hereinbefore; thence along a tangent curve
concave southerly having a radius of 500.00 feet; thence along said curve a
distance of 1039.13 feet through a central angle of 119°04'30"; thence south
29° 42' 43" east a distance of 651. 85 feet to the beginning of a tangent curve
concave northerly having a radius of 436.00 feet; thence along said curve a
distance of 431.77 feet through a central angle of 56°44'25"; thence south
86°27'08" east a distance of 347.63 feet.
EXHIBIT "e"
Parcel 2:
_ that portion of Lot B of RANCHO AGUA HEDIONDA, in the City of Carlsbad,
County of San Diego, State of California, according to Map' thereof No. 823 filed
in the Office of the County Recorder of said County included within that land
described in deed to said County of San Diego recorded January 18, 1974 at
File/Page No. 74-014190 in said Recorder's Office and shown on Record of Survey
Map No. 9167 on file in said Recorder's Office, described as follows:
BEGINNING at the Northwest corner of Lot 5 of CARLSBAD TRACT NO. 74-21, Map
No. 10372 on file in said Recorder's Office; thence along the Westerly line of
said Map No. 10372, South 02°37'29" East, 1437.49 feet; thence leaving said
Westerly line North 13°25'54" West, 353.77 feet; thence South 88°14'35" West.
13.88 feet; thence North 01°45'25" West, 30.00 feet; thence North 88°14'35" East,
7.69 feet; thence North 13°25'54" West, 95.60 feet; thence North 53°09'34" East,
60.46 feet; thence North 05°17'16" West, 430.47 feet; thence North (}()036'29" West.
284.18 feet; thence North 62°48'19" West, 92.21 feet; thence North 02°37'29" West.
39.85 feet; thence South 79°00'00" West, 14.39 feet; thence North 11°00'00" West,
30.00 feet; thence North 79°00'00" East, 18.80 feet; thence North 02°37'29" West,
39.83 feet; thence North 61°49'29" East. 144.09 feet to the POINT OF BEGINNING.
Exhibit "e"
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addition, any other party to whose benefit this Declaration inures shall have the
right in the event of violation or breach of this Declaration, to prosecute a
proceeding at law or in equity against the person or persons who have violated or
are attempting to violate this Declaration, to enjoin or prevent them from doing
so, to cause said violation to be remedied and to recover damages for said
violation.
12.2.4 Cumulative Remedies. The remedies hereby specified are
cumulative, and this specification shall not be deemed to preclude any aggrieved
person's resort to any other remedy at law, in equity or under any statute.
12.2.5 Waiver of Civil Code of Procedure Section 731(a). 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.
12.3 Deemed to Constitute a Nuisance. The result of every action or
omission whereby the provisions of this Declaration are violated in whole or in
part is hereby declared to constitute a nuisance, and every remedy allowed by law
or equity against any Property Owner, Lessee, Licensee or Occupant shall be
applicable in respect to every such result and may be exercised by Declarant, the
Association or any Property Owner or Lessee to whose benefit this Declaration
inures.
12.4 Attorney's Fees. In any legal or equitable proceeding to determine the
rights of the parties to enforce or restrain the violation of this Declaration,
the losing party or parties, as determined by the hearing officer or tribunal for
this purpose, shall pay the reasonable attorney's fees, legal costs and expenses
of the prevailing party or parties.
12.5 Failure to Enforce Not a Waiver of Rights. No delay or failure on the
part of an aggrieved party to invoke any available remedy in respect to a
violation of any of this Declaration shall be held to be a waiver by that part of
(or an estoppel of that party to assert) any right available to him upon the
recurrence or continuance of said violation or the occurrence of a different
violation, nor shall there be construed upon Declarant or the Association, a duty
to take any action to enforce the provisions of this Declaration.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Assignment of Rights and Duties. Any and all of the rights, powers and
reservations of Declarant herein contained may be assigned to any person,
corporation or to any association which will assume the duties of Declarant
pertaining to the particular rights, powers and reservations assigned. Upon such
assignment any such person, corporation or the Association shall, evidencing its
consent in writing to accept such assume such duties, have, to the extent of such
assignment, the same rights and powers and be subject to the same obligations and
duties as are given to and assumed by Declarant herein, including its heirs,
DEE111086 33
successors and assigns. Any assignment or appointment made under this Section
shall be in recordable form and shall be recorded in the Office of the County
Recorder of San Diego County, California. Notwithstanding any provision of this
Declaration to the contrary, Declarant may, at any time, relieve itself of its
rights and obligations under this Declaration by filing in the Recorder's Office
of San Diego County, California, a notice stating that Declarant has surrendered
said rights and obligations and upon the recording of such notice, even if it is
not specified therein, said powers and obligations shall immediately vest in the
Owners of Lots holding a majority of the votes of all Property Owners or an
association of Property Owners if an association then exists. 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.
13.2 Constructive Notice and Acceptance. The Property Owner, Lessee,
Licensee or Occupant, by acceptance of a deed conveying title to any part of the
Business Center, or the execution of a contract for the purchase thereof, or the
acceptance of a lease or license therefore, or the taking possession thereof,
whether from Declarant or a subsequent Property Owner or Lessee, shall accept
such deed, contract, lease, license or possession upon and subject to each and
all of the provisions of this Declaration and to the rights and powers of
Declarant and its successors and assigns, and by such acceptance shall for
himself, his heirs, personal representatives, successors and assigns, covenant,
consent and agree to and with Declarant, its successors and assigns, and to and
with the other Property OWners and Lessees to keep, observe, comply with and
perform the provisions of this Declaration whether or not any reference to this
Declaration is contained in the instrument by which such person or entity
acquired said real property. Every person or other entity who now or hereafter
owns or acquires any right, title or interest in or to any portion of the
Business Center is and shall be conclusively deemed to have consented and agreed
to the Declaration, whether or not any reference to this Declaration is contained
in the instrument by which such person or entity acquired an interest in said
real property.
13.3 Waiver. Neither Declarant, the Association or any member thereof nor
their successors or assigns, nor Property Owner nor Lessee shall be liable to any
other Property Owner, Lessee, Licensee or Occupant of any real property subject
to this Declaration by reason of any mistake in judgment, negligence,
nonfeasance, action or inaction in regard to the enforcement or failure to
enforce the provisions of the Declaration or any part thereof. Every Property
Owner, Lessee, Licensee or Occupant, by acquiring his interest in the Business
Center agrees that he will not bring any action or suit against Declarant, its
successors and assigns or the Association or any member thereof, from time to
time to recover any such damages or to seek equitable relief. This Section 13.3
shall not prevent the enforcement of any legal or equitable right of one Property
Owner against another.
13.4 Mutuality and/or Reciprocity Runs with Land. This Declaration is made
for the direct, mutual and reciprocal benefit of each and every Lot of the
business Center; shall create mutual, equitable servitudes upon each Lot of the
Business Center in favor of every other Lot of the Business Center; shall create
reciprocal rights and obligations between the respective Property Owners and
privity of contract and estate between all grantees of real property in the
DEE111086 34
Business Center, their heirs, successors and assigns; and shall, as to the
Property Owner of each Lot of the Business Center, his heirs, successors and
assigns, operate as covenants running with the land, for the benefit of all other
Lots of the Business Center.
13.5 Rights of Mortgages. No breach of this Declaration shall defeat or
render invalid the lien of any security instrument now or hereafter executed upon
any part of the Business Center except as provided in Subsection 7.1.4 above.
Provided, however, that if any portion of said real property is sold under a
foreclosure of any security instrument or is conveyed to the party so secured in
lieu of foreclosure, any purchaser at such sale or any such grantee and his
successors and assigns shall hold any and all real property, so purchased or
acquired, subject to the provisions of this Declaration.
13.6 Retained Rights; Waiver of Compliance. Wherever it appears in this
Declaration that the Declarant has the right to waive compliance with certain
provisions, the right to approve or deny certain matters or the right to exercise
its discretion in various areas, these rights of the Declarant are expressly
reserved or retained by the Declarant, and all of the provisions of this
Declaration are subject to the retained and reserved rights of the Declarant.
13.7 Reservation of Utility Easements. Declarant hereby reserves for its
own use and benefit, and for the use and benefit of each of its grantees and
their successors and assigns, easements for the location, installation and
maintenance of utilities of convenience or necessity as may be requested or
required by Declarant or its grantees and their successors and assigns. The
Owner of any Lot within the Business Center and any of his assignees, Lessees,
Licensees or other Occupants shall have the right at all reasonable times to
enter upon the land covered by said easements and to install, maintain, repair
and service utilities thereon for the use and benefit of his own respective Lot.
Provided, however, that any such person shall restore said land, at his own
expense to, as nearly as practicable, the same condition as existed prior to such
entry. The Owner of any Lot shall have the right to assign the benefit and use
of any such easement to any electric company, gas company, telephone company,
flood control district, or other public utility or to the State of California, or
any subdivision thereof for the purpose of installing, operating and maintaining
utilities and any drainage easements and enforcing the current easement rights.
For the purpose thereof, "utilities" shall include electricity, gas mains and
lines, water distribution lines, storm water sewers, sanitary sewers, telephone
and telegraph cables and lines, and other similar or related facilities commonly
regarded as utilities. No conveyance by Declarant of any Lot or Site within the
Business Center, or any interest therein, shall be deemed to be, or construed as
a conveyance or release of the easements herein reserved, even though such
conveyance purports to convey such Lot or Lots in fee simple or purports to
convey Declarant's entire interest therein; but, notwithstanding the foregoing,
Declarant reserves the right unto itself, and Declarant shall have the right to
express language to such effect, from time to time, to release any segment or
area of the above reserved easements provided that Declarant causes any utility
or utilities existing therein to be relocated without expense to the users
thereof and without any unreasonable interruption of any utility service
furnished through the easement to be released.
DEE111086 35
13.8 Severance of a Lot. If at any time hereafter, any segment of the
Business Center is severed from the main body of the Business Center by any
limited access highway (i.e., a highway, access to which is permitted only
through officially established interchanges and direct access to which from
adjacent properties is prohibited) Declarant, or the Property Owner of the Lot so
severed, shall have the right to release the Lot so severed from the force and
effect of this Declaration and, upon recordation of such an instrument, such Lot
shall be released free and clear of the provisions of this Declaration with the
same force and effect as though such Lot had not originally been included within
the Business Center. After any such release, no Property Owner, transferee,
Occupant, Lessee or Licensee of any such Lot shall be bound by or entitled to
enforce or have any right or benefit pursuant to this Declaration. For purposes
of this Section 13.8, a Lot shall be deemed severed from the Business Center if
and when any such limited access highway intervenes between such Lot and the main
body of the Business Center, even though access is provided by way of an
overpass, an underpass, or crossroad between such Lot and the main body of the
Business Center.
13.9 Paragraph Headings. Paragraph headings, where used herein, are
inserted for convenience only and are not intended to be a part of this
Declaration or in any way to define, limit or describe the scope and intent of
the particular paragraphs to which they refer.
13.10 Effect of Invalidation. If any provision of this Declaration is held
to be invalid by any court, 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.
13.11 Notices. Any and all notices or other communication made pursuant
hereto shall be in writing and shall be deemed properly delivered, given or
served to Declarant (i) when personally delivered against receipted copy, or
(ii) four (4) business days after being mailed by certified or registered mail,
postage prepaid; in either case (i) or (ii) to the Declarant at the following
address:
KAISER DEVELOPMENT COMPANY
2121 Palomar Airport Road, Suite 201
P. O. Box 308
Carlsbad, CA 92008
For the purpose of this Section, Declarant may change its address by
recordation of a Notice of Change of Address in the Office of the County Recorder
of San Diego County, California.
Any notice to any Property Owner shall be deemed duly served (i) when
personally delivered against receipted copy, or (ii) four (4) business days after
mailing by certified or registered mail, postage prepaid, in either case (i) or
(ii), to the last known address of the Owner of the real property so owned,
leased or occupied.
DEE111086 36
IN WITNESS WHEREOF, Declarant has executed this Declaration, as of the day
and year first above written.
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
KAISER DEVELOPMENT COMPANY,
a California corporation
By
James M. Van de Water
Vice President & General Manager
On , 1986, before me, the undersigned, a Notary
Public in and for said State, personally appeared JAMES M. VAN DE WATER
personally known to me or proved to me on the basis of satisfactory evidence to
be the person who executed the within instrument as the Vice President of the
Corporation that executed the within instrument and acknowledged to me that such
corporation executed the within instrument pursuant to its by-laws or a
resolution of its Board of Directors.
WITNESS my hand and official seal.
DEE111086 37
EXHIBIT "A"
L1&-t.s-l-t;Jl~~l!c;J_!l_....?..2/, inclusive, of CARLSBAD TRACT NO. 74-21,
in the City of Carlsbad, County of San Diego, S ta te of
California, according to Map thereof No. 10372, filed in
the Office of the County Recorder of San Diego County,
April 13, 1~82.
PARCEL 1:
ALL THAT PORTION OF LOT "B" OF RANCHO AGUA HEDIONDA, IN THE CITY
OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE
OF COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896,
BOUNDED AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT "B" OF SAID RANCHO AGUA
HEDIONDA, AS SHOWN ON RECORD OF SURVEY NO. 517, FILED IN
THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 30, 1935;
THENCE ALONG THE BOUNDARY OF SAID LOT AS SHOWN ON SAID MAP
NO. 517, SOUTH 89°45' EAST 5173.00 FEET TO THE SOUTHEAST CORNER
OF LOT "D" OF SAND RANCHO AGUA HEDIONDA; THENCE CONTINUING
ALONG THE BOUNDARY OF SAID LOT "B", SOUTH
89°53' EAST 2666.00 FEET AND SOUTH 0°17'57" EAST
2657.96 FEET -RECORD SOUTH 0°32'00" EAST 2655.2
FEET -TO POINT 14 OF SAID LOT "B" AS SAID POINT 14 IS
DESIGNATED ON SAID MAP NO. 823; THENCE ALONG THE BOUNDARY
OF SAID LOT "B", SOUTH 89°54'00" EAST 2362.36 FEET TO THE
TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID BOUNDARY, SOUTH
89°54'00" EAST 1109.57 FEET; THENCE SOUTH 3°05'08" EAST 5839.45 FEET TO
THE SOUTHERLY BOUNDARY OF SAID LOT "B"; THENCE ALONG SAID SOUTHERLY BOUNDARY, SOUTH 79°09'09" WEST -RECORD SOUTH 79°12' WEST -645.60 FEET TO AN ANGLE POINT THEREIN; AND NORTH 73°54'02" WEST -RECORD NORTH 73°50' WEST -495.70 FEET TO AN INTERSECTION WITH A LINE WHICH BEARS SOUTH 3°05'08" EAST FROM THE TRUE POINT OF BEGINNING; THENCE ALONG SAID
LINE, NORTH 3°05'08" WEST, A DISTANCE OF 5825.40 FEET TO THE TRUE
POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION LYING SOUTHERLY OF THE NORTHERLY LINE OF CARLSBAD TRACT NO. 74-21, ACCORDING TO MAP 10372, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13, 1982.
PARCEL 2:
ALL THAT PORTION OF LOT "B" OF RANCHO AGUA HEDIONDA,
IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, BOUNDED AND
DESCRIBED AS FOLLOWS:
EXHIBIT "A-l"
COMMENCING AT THE NORTHWEST CORNER OF LOT "B" OF SAID RANCHO
AGUA HEDIONDA AS SHOWN ON RECORD OF SURVEY NO. 517, FILED
IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY,
OCTOBER 30, 1935; THENCE ALONG THE BOUNDARY OF SAID LOT AS SHOWN ON
SAID MAP NO. 517, SOUTH 89°45' EAST 5173.00 FEET TO THE SOUTHEAST CORNER OF LOT "0" OF SAID RANCHO AGUA HEDIONDA; THENCE CONTINUING ALONG THE BOUNDARY OF SAID LOT "B", SOUTH 89°53' EAST 2666.00 FEET AND SOUTH 0°17'57" EAST 2657.96 FEET -RECORD SOUTH 0°32'00" EAST 2655.2 FEET -TO POINT 14 OF SAID LOT "B" AS SAID POINT 14 IS DESIGNATED ON SAID MAP NO. 823; THENCE ALONG THE BOUNDARY OF SAID LOT "B", SOUTH 89°54'00" EAST 120S.46 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING
ALONG SAID BOUNDARY SOUTH 89°54'00" EAST 1156.90 FEET; THENCE SOUTH
3°0S'08" EAST 5825.40 FEET TO THE SOUTHERLY BOUNDARY, NORTH 73°54'02" WEST -RECORD NORTH 73°50' WEST-A DISTANCE OF 1223.04 FEET TO AN
INTERSECTION WITH A LINE WHICH BEARS SOUTH 3°05'08" EAST FROM THE TRUE
POINT OF BEGINNING; THENCE ALONG SAID LINE, NORTH 3°05'08" WEST, A
DISTANCE OF 5487.77 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION LYING SOUTHERLY OF
THE NORTHERLY LINE OF CARLSBAD TRACT NO. 74-21, ACCORDING TO MAP
THEREOF NO. 10372, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13, 1982.
PARCEL 3:
ALL THAT PORTION OF LOT "B" OF RANCHO AGUA HEDIONDA, IN THE
CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 823 FILED IN THE OFFICE O~ COUNTY RECORDER
OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, BOUNDED AND DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT "B" OF SAID RANCHO AGUA
HEDIONDA, AS SHOWN ON RECORD OF SURVEY NO. 517 FILED IN
THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 30, 1935;
THENCE ALONG THE BOUNDARY OF SAID LOT AS SHOWN ON SAID MAP
NO. 517, SOUTH 89°45' EAST 5173.00 FEET TO THE SOUTHEAST CORNER
OF LOT "0" OF SAID RANCHO AGUA HEDIONDA; THENCE CONTINUING ALONG THE BOUNDARY OF SAID LOT "B"; SOUTH 89°53'
EAST 2666.00 FEET AND SOUTH 0°17'57" EAST 2657.96 FEET -RECORD
SOUTH 0°32'00" EAST 2655.2 FEET -TO POINT 14
OF SAID LOT "B" AS SAID POINT 14 IS DESIGNATED ON SAID MAP NO. 823; THENCE ALONG THE BOUNDARY OF SAID LOT "B", SOUTH 89°S4'00" EAST 3471.98 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID BOUNDARY, SOUTH 89°54'00" EAST, 1142.07 FEET TO POINT 15 OF SAID LOT "B" AS SAID POINT 15 IS DESIGNATED ON SAID MAP NO. 823; THENCE ALONG THE EASTERLY BOUNDARY OF SAID LOT, SOUTH 3°0S'08" EAST 5620.SS FEET -RECORD SOUTH 3°3' EAST 5621.2 FEET -TO THE SOUTHEAST CORNER THEREOF; THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID LOT "B",
SOUTH 79°09'09" WEST, -RECORD SOUTH 79°12' WEST -1150.85 FEET
TO AN INTERSECTION WITH A LINE WHICH BEARS SOUTH 3°05'08" EAST
FROM THE TRUE POINT OF BEGINNING; THENCE ALONG SAID LINE, NORTH
3°05'08" WEST, A DISTANCE OF 5839.45 FEET TO THE TRUE POINT OF
BEGINNING.
EXHIBIT "A-I"
EXCEPTING THEREFROM ALL THAT PORTION LYING SOUTHERLY OF
THE NORTHERLY LINE OF CARLSBAD TRACT NO. 74-21, ACCORDING TO MAP THEREOF NO. 10372, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, APRIL 13, 1982.
PARCEL 4:
ALL THAT PORTION OF LOT "B" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF COUNTY
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, BOUNDED AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT "B" OF SAID RANCHO AGUA
HEDIONDA, AS SHOWN ON RECORD OF SURVEY NO. 517, FILED
IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 30, 1935; THENCE ALONG THE BOUNDARY OF SAID LOT AS SHOWN ON SAID MAP NO. 517, SOUTH 89°45' EAST 5173.00 FEET TO THE SOUTHEAST CORNER OF LOT "D" OF SAID RANCHB AGUA HEDIONDA; THENCE CONTINUING ALONG THE BOUNDARY OF SAID LOT "B"; SOUTH 89°53' EAST 2666.00 FEET AND SOUTH
0°17'57" EAST 2657.96 FEET -RECORD SOUTH 0°32'00" EAST 2655.2 FEET -TO POINT 14 OF SAID LOT "B" AS SAID POINT 14 IS DESIGNATED ON SAID MAP
NO. 823; THENCE ALONG THE ~OUNDARY OF SAID LOT "B", SOUTH 89°54'00"
EAST 23.41 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG
THE BOUNDARY OF SAID LOT, SOUTH 89°54'00" EAST 1182.05 FEET; THENCE
SOUTH 3°05'08" EAST 5487.77 FEET TO THE SOUTHERLY BOUNDARY OF SAID LOT "B"; THENCE ALONG SAID SOUTHERLY BOUNDARY NORTH 73°54'02" WEST -RECORD NORTH 73°50'00" WEST -23.20 FEET TO AN ANGLE POINT THEREIN AND SOUTH 84°34'38" WEST -RECORD SOUTH 84°38' WEST -1159.28 FEET TO AN INTERSECTION WITH A LINE WHICH BEARS SOUTH 3°05'08" EAST FROM THE TRUE POINT OF BEGINNING; THENCE ALONG SAID LINE, NORTH 3°05'08" WEST, A DISTANCE OF 5593.11 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION LYING SOUTHERLY
OF THE NORTHERLY LINE OF CARLSBAD TRACT NO. 74-21, ACCORDING
TO MAP THEREOF NO. 10372, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13, 1982.
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and approved by the Committee. No refuse collection areas shall be permitted in
the area adjacent to any Improvement which fronts upon a public street unless
prior written approval is obtained from the Committee.
ARTICLE VIII
LAND CLASSIFICATION, PERMITTED USES AND RESTRICTIONS
8.1 Land Classification.
All land within the Business Center is zoned PM for industrial,
research and development facilities and office buildings. If real property is
annexed to the Business Center, its land use classification shall be established
by the declaration of annexation.
8.2 Permitted Uses; Nuisances; Property Maintenance.
8.2.1 Permitted Operations and Uses. The improvement, operation
and use of a Lot shall be restricted to oftice, engineering, research,
warehousing and light and medium manufacturing operations and accessory uses
incidental thereto, and such retail and commercial operations, expressly approved
by the Committee in writing, as may be of service to, and in harmony with, a
quality industrial park development, all of such nature and type as will not
create or emit offensive, hazardous or excessive quantities of dust, dirt, fly
ash, smoke, noise, fumes, odors or vibrations, or create fire, explosion or other
hazards. Upon written request therefor, the Committee shall be provided with
evidence that property controls, measures, or devises will be provided to insure
and prot~ct the interest, safety, and general welfare of other occupants of the
Business Center from any and all such nuisances or hazards. All City, County,
State or Federal laws, codes or ordinances shall be complied with.
8.2.2 Specifically Prohibited Uses. No lot shall be used for an
activity or purpose, in addition to those otherwise listed in this Section,
considered by the Committee in its sole and absolute discretion to be
objectionable as an intrusion into the environment of sound, odor, visual effect
or physical impact which in its opinion will disturb or tend to disturb the other
Owners, Lessees or Occupants in the Business Center or which .is deemed to
constitute a nuisance. Operations and uses which will not be permitted on any
Lot include, without limitation, the following:
1. Residential;
2. Camping;
3. Mobile home sales and storage yards or trailer
or recreational vehicle courts or sales facilities;
4. Labor camps;
5. Junk yards and auto dismantling operations;
DEEll1086 19
6. Distillation of bones;
7. Dumping, disposal, incineration or reduction of
garbage, sewage, dead animals, refuse or silage;
8. Saw or planing mills;
9. Manufacturing, excavation (if applicable) or
production of cement, lime asphalt, gypsum,
fireworks, wood pulp or the like;
10. Production of fish products, sauerkraut,
vinegar or the like;
11. Fat rendering;
12. Stockyard or slaughtering of animals;
13. Surface mining operations;
14. Smelting of iron, tin, zinc or other ores;
15. Cemeteries;
16. Tent shelters or storage facilities;
17. Processing of sugar beets;
18. Gasoline service stations, garages and auto
repair, automotive paint and body shops;
19. Drilling for and/or the removal of
gas or oil;
20. Refining of petroleum or other hydrocarbon
products or by-products or the storage of
such products and by-products;
21. Manufacturing, distillation or storage of
chemicals (unless such storage is incidental
to other permitted activities, is not in
bulk, and has been approved by the Committee)
or any other operation involving offensive
odors, noise levels or air pollution or such
other operation or use which is deemed by the
Committee in its sole and absolute discretion
to be dangerous, unsafe, offensive or harmful
to the senses or which is deemed to constitute
a nuisance;
22. Jailor detention facilities;
DEEIII086 20
23. Mini-warehouse; and
24. Truck terminals.
8.2.3 Nuisances. No Property Owner, Lessee, Licensee or Occupant
shall create a nuisance in the Business Center or other property in the vicinity
of the Business Center. No rubbish or debris of any kind shall be placed or
permitted to accumulate upon or adjacent to any lot, and 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
thereof or to the Occupants thereof after the initial occupancy or during the
initial construction or operation of the Improvements. No use or operation shall
be conducted in the Business Center which is noxious, objectionable, unsightly or
detrimental to others in any manner and due to any cause, such as but not limited
to, vibration, sound, electro-mechanical disturbances, electro-magnetic
disturbances, radiation, air to water pollution, dust or emission of odorous
toxic and non-toxic matters.
8.3 Maintenance.
8.3.1 General. Notwithstanding the existence of any insurance
covering an Owner, the Association, or both, against loss, damage and
destruction, the Association and each Owner shall have the affirmative obligation
for maintenance, repair and restoration as set forth in this Article.
8.3.2 Property Owner's Obligation for Property Maintenance and
Repair of Building. All Lots and Improvements, including but not limited to the
Landscape Installation Areas, whether occupied or unoccupied, shall at all time
be maintained by the Property Owner in such a manner as to prevent their becoming
unsightly by reason of unattractive growth or the accumulation of rubbish or
debris thereon. No Lot or Improvement in the Business Center shall be permitted
by its Owner, Lessee, Licensee or Occupant to fall into disrepair, and each such
Lot and Improvement shall at all times be kept in good condition and repair and
adequately painted or otherwise finished.
8.3.3 Drainage. No Owner shall interfere with or obstruct the
established surface drainage pattern over any Lot, unless and adequate
alternative provision is made for the proper drainage and is first approved in
writing by the Architectural and Development Review Committee and the City of
Carlsbad. Any alteration of the established drainage pattern must at all times
comply with all applicable local governmental ordinances. For the purpose
hereof, "established" drainage is defined as the drainage which exists at the
time the overall grading of a Lot is completed by Declarant. Water from any Lot
may drain into adjacent streets, but shall not drain onto adjacent Lots unless an
easement for such purposes is granted herein or in the recorded subdivision map
for the Business Center. Declarant hereby reserves for itself and its successive
owners, over areas of the Business Center, easements for drainage from slope
areas and drainage ways constructed by Declarant.
8.3.4 Lateral Support. Each Owner shall maintain his Lot with
sufficient landscaping and plantings so as to prevent erosion upon his Lot that
DEE1l1086 21
will result in damage to that Lot or to any adjacent Lot. No Owner shall perform
any excavation upon his Lot that will result in damage to any adjacent Lot.
8.3.5 The Association's Obligation for Maintenance and Repairs.
The Association shall maintain the Landscape Maintenance Areas, Landscape Entry
Treatment Areas, Landscape Access Areas and Storm Drain System including all
improvements, facilities, landscaping and planting thereon in good condition and
repair, and more specifically as follows;
8.3.5.1 Landscape Maintenance Areas, Landscape Access Areas
and Landscape Entry Treatment Areas. The Landscape Maintenance Areas, Landscape
Access Areas and Landscape Entry Treatment Areas shall be maintained by the
Association in a high quality manner and in accordance with industry landscaping
standards. All aspects of landscaping, including but not limited to mowing,
pruning, trimming, weeding, planting, fertilizing and irrigation shall be
performed in a professional manner.
8.3.5.2 Storm Drain System. Maintenance of all elements of
the Storm Drain System shall include the removal of any accumulated silt, debris,
weeds or other obstructions and the repair of any other condition which would
prevent the system from operating as it was designed and shall be performed as
necessary to insure proper operation of the system.
8.3.5.3 Cost of Maintenance. The cost of the normal
maintenance for which the Association is responsible under this Section shall be
assessed as part of the regular assessments in accordance with the provisions of
Section 9.5, provided, however, that the cost of any maintenance, repair or
replacement of the Landscape Maintenance Areas, Landscape Entry Treatment Areas,
Landscape Access Areas or Storm Drain System which is not covered by insurance
and which results from the negligence or willfulness of an Owner, Lessee, an
Owner's guest or the occupant of an Owner's Lot shall be an assessment, lien, and
obligation of such Owner and shall be due and payable in all respects as provided
in Section 9.7.
8.4 Damage and Destruction Affecting Lots --Duty to Rebuild. If all or
any portion of a Lot or any Improvement on any such Lot is damaged or destroyed
by fire or other casualty, it shall be the duty of the Owner of such Lot to
(i) rebuild, repair or reconstruct the Lot and the Improvements thereon in a
manner which will restore them to a condition and appearance approved by the
Committee and the City of Carlsbad, (ii) raze and remove the damaged
Improvements, restoring the Lot to substantially its original unimproved
condition, or (iii) any combination of the above, all in a manner satisfactory to
the Committee. The Owner of any Lot on which damaged Improvements are located
shall be obligated to proceed with all due diligence hereunder, and such Owner
shall cause cleanup and/or reconstruction to commence within three (3) months
after the damage occurs and to be completed within nine (9) months after damage
occurs, unless prevented by causes beyond his reasonable control.
8.5 Insurance Obligation of Owners. Each Owner shall insure his
Improvements against loss or damage by fire or by any other casualty, under the
standard form of extended endorsement now in use in the State of California or
under such other insurance as may be required by any mortgagee of a first
DEE111086 22
mortgage on his Lot or by any beneficiary of a first deed of trust encumbering
his Lot. All such insurance shall be in an amount as near as practicable to the
full replacement value of the building and appurtenant Improvements, without
deduction for depreciation or coinsurance.
8.6 Variances, Other Operations and Uses.
8.6.1 Variances. The Board is hereby authorized and empowered
to grant variances for commercial or retail uses within the Business Center in
addition to those listed in Subsection 8.2.1 and to further grant reasonable
variances from the provisions of this Declaration, or any portion hereof, in
order to overcome practical difficulties and to prevent unnecessary hardship in
the application of the provisions contained herein. Provided, however, that the
Owner seeking the variance has obtained all acquired governmental approvals and
the variances do not materially injure any of the Lots or Improvements in the
Business Center, and shall otherwise be subject to and conform with all
applicable laws, ordinances, rules and regulations, including but not limited to
zoning regulations, of any governmental agency or political entity having
jurisdiction over the Business Center. 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.
8.6.2 Specially Permitted 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 approved in writing by the
Committee and permitted by the City of Carlsbad. Approval or disapproval shall
be based upon consideration of the effect of such operations or uses on other
property subject to this Declaration upon the occupants thereof.
ARTICLE IX
FUNDS AND ASSESSMENTS
9.1 Creation of Lien and Personal Obligation for Assessments. Declarant,
for each lot owned within the Business Center, hereby covenants, and each
Property Owner, by acceptance of a deed therefor, whether or not it shall be so
expressed in such deed, is deemed to covenant and agrees to pay to the
Association: (a) regular assessments as hereinafter described, (b) special
assessments, such assessments to be established and collected as hereinafter
provided and (c) such other assessments which the Board is authorized to levy
pursuant to the provisions of this Declaration. The regular and special
assessments, together with interest, costs and reasonable attorney's fees, shall
be a charge on the land 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 assessments. Each such assessment, together with interest,
costs and reasonable attorney's fees, shall also be the personal obligation of
the person who was the Owner of such Lot at the time when the assessment fell
due. The personal obligation for delinquent assessments shall not pass to his
successors in title, unless expressly assumed by them. If more than one person
or entity was the Owner of a Lot, the personal obligation to pay such assessment
or installment respecting such Lot shall be both joint and several.
DEE111086 23
9.2 Purpose of Assessments. The assessments levied by the Association
shall be used exclusively to enhance, maintain and protect the desirability,
attractiveness and safety of the Business Center and for the improvement and
maintenance of the Landscape Maintenance Areas, Landscape Entry Treatment Areas,
Landscape Access Areas and Storm Drain System, and to reimburse the Association
for the costs incurred in bringing a Property Owner into compliance with the
Articles, By-laws, Declaration and Rules and Regulations adopted by the Board.
9.3 Budgets and Financial Statements of the Association. The following
financial information shall be regularly prepared and distributed by the Board to
all Members of the Association:
9.3.1 Prior to the beginning of each fiscal year of the
Association, the Board shall prepare or cause to be prepared and distribute to
all Members of the Association an operating budget for each fiscal year setting
forth the estimated revenues and expenses for said fiscal year and the total cash
reserves of the Association currently available for expenditures.
9.3.2 After the close of the Association's fiscal year the Board
shall prepare and distribute to each Member a balance sheet and operating
(income) statement for the fiscal year.
9.4 Funds. The Association shall establish and maintain an operating fund
(the "Maintenance and Operation Account") into which the Board shall deposit all
funds paid to the Association as maintenance and operation assessments. The
Association shall also maintain a reserve fund ("Reserve Account") into which the
Board shall deposit all funds collected as reserves for contingencies and the
repair and replacement of Improvements. All funds shall be held in trust by the
Association for the use and benefit of its Members and shall only be used for and
apply to the common specific purpose for each assessment as hereinafter set
forth.
9.5 Regular Assessments.
9.5.1 Purpose. Regular assessments shall be used exclusively for
all expenses incurred by the Association for (a) the administration, operation
and maintenance of the Landscape Maintenance Areas, Landscape Entry Treatment
Areas, Landscape Access Areas and Storm Drain System; and (b) carrying out the
duties and obligations required under this Declaration.
9.5.2 Date of Commencement of Regular Assessments. The regular
assessments provided for in this Article IX shall commence as to all Lots on the
first day of the month following the conveyance of the first Lot to a Property
Owner; provided, however, that the Declarant may, at its option delay the start
of regular assessments so long as Declarant performs all maintenance and other
obligations of the Association at its sole cost and expense. The first regular
assessment shall be adjusted according to the number of months remaining in the
calendar year.
9.5.3 Budget. Not more than sixty (60) days before the beginning
of each fiscal year of the Association, the Board shall meet for the purpose of
establishing the regular assessment for the forthcoming fiscal year. At such
DEE1l1086 24
meeting the Board shall review the proforma operating statement or budget
prepared in accordance with Section 9.3 above, and written comments received from
any Member and any other information available to it and, after making any
adjustments that the Board deems appropriate, without a vote of the Members of
the Association, shall establish the regular assessment for the forthcoming year;
provided, however, that the regular assessment may not increase in any subsequent
year by more than twenty percent (20%) above the regular assessment for the
previous year. Any increase in the amount of the regular assessment in excess of
twenty percent (20%) shall require the vote or written consent of the Association
Members, including the Declarant, owning a majority of the Gross Acres in the
Business Center.
9.5.4 Payment of Assessments.
payable by the Owners to the Association in
installments, on or before the first day of
each calendar year, or in such other manner
9.6. Special Assessments.
Regular assessments shall be due and
advance in four (4) equal quarterly
January, April, July and October of
as the Board shall designate.
9.6.1 Purpose. Special assessments may be levied by the Board if
the Board determines that the estimated total amount of funds necessary to defray
the expenses of the Association for a given fiscal year is or will become
inadequate to meet expenses due to unanticipated delinquencies, costs of
construction or unexpected repairs, replacements or reconstruction of the capital
improvements in the Landscape Maintenance Areas, Landscape Entry Treatment areas,
Landscape Access Areas and Storm Drainage System, or if funds are otherwise
required for any authorized activity of the Association.
9.6.2 Budgeting. The Board shall determine the approximate amount
necessary to defray the expenses set forth in Subsection 9.6.1 above, and, if the
amount is approved by a majority vote of the Board, it shall become a special
assessment; provided, however, that the Board may, in its discretion, pro rate
such special assessment over the remaining months of the fiscal year or levy the
assessment immediately against each Lot. Any special assessment in excess of ten
percent (10%) of the budgeted gross expenses of the Association for the fiscal
year in which a special assessment is levied shall require approval by a majority
of the voting power vote of the members of the Association, including Declarant.
9.5.3 Time and Manner of Payment. Special Assessments shall be due
and payable within fifteen (15) business days after a Member receives written
notice from the Board specifying the amount of the special assessment, unless the
Board specifies in such notice a later date for payment.
9.7 Reimbursement Assessment. The Board may levy a reimbursement
assessment against any Owner who fails to comply with this Declaration, the Rules
and Regulations or the Architectural and Development Guidelines in an amount
equal to any monies expended by the Association in performing its functions under
this Declaration or in the imposition of a fine or penalty pursuant to this
Declaration.
DEEIII086 25
9.8 Capital Improvement Assessment.
9.8.1 Purpose. Capital improvement assessments may be levied by
the Association in any assessment year, applicable to that year only, for the
purpose of defraying, in whole or in part, the cost of construction of any
Improvements deemed reasonably necessary by the Board for the benefit of the
Business Center provided that any capital improvement assessment in excess of
five (5%) of all assessments budgeted for that fiscal year shall require approval
by vote or written consent of a majority of the voting power of the Members of
the Association, including Declarant.
9.8.2 Time and Manner of Payment. Capital improvement assessments
shall be due and payable by all Owners in such installments and during such
period or periods as the Board shall designate for the payment thereof.
9.9 Rate of Assessment. All assessments (other than a special assessment
levied against a Property Owner to bring the Property Owner or his Lot into
compliance with the Declaration, Articles, By-laws or rules and regulations of
the Board) shall be fixed based upon the proportion of Gross Acres of land owned
by each Owner in relationship to the total Gross Acreage in the Business Center.
In the event of resubdivision of any Lots, the assessment shall be reallocated to
such resubdivided Lots based upon the number of gross acres in the resubdivided
Lot to the total Gross Acres of the Lot before resubdivision.
9.10 Estoppel Certificate. The Board, on not less than twenty (20) days
prior written request accompanied by a copy of an ALTA survey furnished by Owner,
shall execute, acknowledge and deliver to the party making such request a
statement in writing stating whether or not to the knowledge of the Association,
a particular Owner is in default as to his Lot under the provisions of this
Declaration and further stating the dates to which installments of assessments,
regular or special, have been paid as to such Lot. Any such certificate may be
relied on by any prospective purchaser of the Lot, but reliance on such
certificate may not extend to any default not involving the payment of
assessments of which the signer had no actual knowledge.
9.11 Collection of Assessments: Liens.
9.11.1 Right to Enforce. The right to collect and enforce
assessments is vested in the Board acting for and on behalt of the Association.
The Board or its authorized representative, can enforce the obligations of the
Owners to pay assessments provided for in this Declaration by commencement and
maintenance of a suit at law or in equity, or the Board may foreclose by judicial
proceedings or through the exercise of the power of sale pursuant to Subsection
9.11.2 below enforce the lien rights created. Suit to recover a money judgment
for unpaid assessments, together with all other amounts described in this
Subsection 9.11.1 shall be maintainable without foreclosing or waiving the lien
rights.
Notwithstanding anything else to the contrary herein, a monetary penalty
imposed by the Association as a disciplinary measure for failure of a Member to
comply with governing instruments or as a means of reimbursing the Association
for costs incurred by the Association in the repair of damage to the Landscape
DEE111086 26
Maintenance Area, Landscape Entry Treatment Areas, Landscape Access Areas, Storm
Drain System or the other Improvements for which the Member was allegedly
responsible or in bringing the Member into compliance with the governing
instruments of the Association may not be characterized nor treated as an
assessment which may become a lien against the Member's Lot enforceable by a sale
of the interest hereunder. The limitation in the preceding sentence, however,
does not apply to charges imposed against a Member consisting of the late payment
penalties for delinquent assessments and/or charges to reimburse the Association
for the loss of interest and for costs reasonably incurred (including attorney's
fees) in efforts to collect delinquent assessments.
9.11.2 Creation of Lien. If there is a failure to pay any
assessment within fourteen (14) days after the due date, or installment on a Lot,
any amounts that are delinquent, interest at the maximum lawful rate per annum
and a late charge of five percent (5%) on the outstanding balance and all costs
that are incurred by the Board or its authorized representative in the collection
of the amounts, including reasonable attorney's fees, shall be a lien against
such Lot upon the recordation in the Office of the County Recorder of San Diego
County of a notice of assessment as provided in California Civil Code, Section
1356. The notice of assessment shall not be recorded unless and until the Board
or its authorized representative has delivered to the delinquent Owner or Owners,
not less than fifteen (15) days before the recordation of the notice of
assessment, a written notice of default and a demand for payment, and unless such
delinquency has not been cured within said fifteen (15) day period. The lien
shall expire and be void unless, within one (1) year after recordation of the
notice of assessment, the Board or its authorized representative records a notice
of default as provided hereinafter or institutes judicial foreclosure proceedings
with respect to such lien.
9.11.3 Notice of Default; Foreclosure. Not more than one (1) year
nor less than fifteen (15) days after the recording of the notice of assessment,
the Board or its authorized representative can record a notice of default and can
cause the Lot with respect to which a notice of default has been recorded to be
sold in the same manner as a sale is conducted under California Civil Code,
Sections 2924, 2924b and 2924c, or through judicial foreclosure. However, as a
condition precedent to the holding of any such sale under Section 2924c
appropriate publication shall be made. In connection with any sale under Section
2924c the Board is authorized to appoint its attorney, any officer or director,
or any title insurance company authorized to do business in California as trustee
for purposes of conducting the sale. If a delinquency is cured before sale, or
before completing a judicial foreclosure, the Board or its authorized
representative shall cause to be recorded in the office of the county recorder of
the county in which the development is located a certificate setting forth the
satisfaction of such claim and release of such lien upon payment of actual
expenses incurred, including reasonable attorneys' fees by any delinquent Owner.
On becoming delinquent in the payment of any assessments, or installments each
delinquent Owner shall be deemed to have absolutely assigned all rent, issues and
profits of his Lot to the Association and shall further be deemed to have
consented to the appointment of a receiver (which appointment may, at the
election of the Association, be enforced by the Association through specific
performance). The association, acting on behalf of the Owners, shall have the
DEEIII086 27
power to bid upon the Lot at foreclosure sale and to acquire, hold, lease,
Mortgage and convey the Lot.
9.12 No Offsets. All assessments shall be payable in the amounts specified
by the particular assessment and no offsets against such amount shall be
permitted for any reasons, including, without limitation, a claim that the
Association is not properly exercising its duties of maintenance, operation or
enforcement.
9.13 Subordination of the Lien to First Mortgages. The lien of assessment
herein shall be subordinate and subject only to the lien of any first Mortgage
now or hereafter placed upon any Lot subject to assessment which has been made in
good faith and for value recorded in the Office of the San Diego County Recorder
prior to the recordation of any such assessed lien, and the sale or transfer of
any Lot pursuant to judicial or non-judicial foreclosure of a first Mortgage
shall extinguish the lien of such assessments as to payments which became due
prior to such sale or transfer. No sale or transfer shall relieve such Lot from
lien rights for any assessments thereafter becoming due nor from the lien of any
subsequent assessment. Where the Mortgagee of a first Mortgage or other
purchaser of a Lot obtains title to the same as a result of foreclosure, such
acquirer of title, his successors and assigns, shall not be liable for the share
of the common expenses or assessments by the Association chargeable to such Lot
which became due prior to the acquisition of title to such Lot by such acquirer,
except for a share of such charges or assessments resulting from a reallocation
of such charges or assessments which are made against all Lots.
9.14 Transfer of Property. After transfer or sale of any Lot within the
Business Center, the selling Owner or Owners shall not be liable for any
assessment levied on his Lot after the date of such transfer of ownership and
written notice of such transfer is delivered to the Association. The selling
Owner shall still be responsible for all assessments and charges levied on his
Lot prior to any such transfer.
9.15 Failure to Fix Regular Assessments. The omission by the Board to fix
the regular assessments hereunder before the expiration of any year, for that or
the next year, shall not be deemed either a waiver or modification in any respect
of the provisions of this Declaration or a release of the Owner from the
obligation to pay the assessments or any installment thereof for that or any
subsequent year, but the assessment fixed for the preceding year shall continue
until a new assessment is fixed.
9.16 Association Funds. The assessments collected by the Association shall
be property deposited into two (2) separate accounts with a savings and loan
association or bank selected by the Board, which accounts shall be clearly
designated as the Maintenance and Operation Account and the Reserve Account. The
funds collected shall be deposited into the appropriate accounts and said
accounts shall be separately maintained by the Association. Upon sale or
transfer of any Lot by any Owner, the Owner's interest in such accounts shall be
deemed automatically transferred to the successor transferee of such Owner. In
the event the Board retains a professional management service, the Board may
delegate the authority to deposit or withdraw funds to responsible
representatives of the professional management agent so retained. Said
DEE111086 28
professional management agent may additionally be authorized to establish a
common trustee account for deposit of assessments as collected.
9.17 Book of Accounts. The Board shall maintain full, complete and correct
books of account of the operation of the Business Center. The books of account
shall be available for inspection by any Lot Owner during reasonable business
hours. Any Lot Owner, or the duly authorized representative thereof, may at any
time and at his own expense cause an audit or inspection to be made of the books
and records of the Association for any period not previously audited. The Board
may, at its option, cause an audit to be made at the Association's cost and
expense. Said books and records shall accurately detail the receipts and
expenditures affecting the Landscape Maintenance Areas, Landscape Installation
Areas, Landscape Entry Treatment Areas, Landscape Access Areas and Storm Drainage
System specifying and itemizing the maintenance and repair expenses of the
Landscape Maintenance Areas, Landscape Installation Areas, Landscape Entry
Treatment Areas, Landscape Access Areas and Storm Drainage System and any other
expenses incurred.
ARTICLE X
DESTRUCTION OF BUSINESS CENTER
10.1 Bids and Insurance Proceeds. As soon as practicable after the damage
or destruction of all or any portion of the Landscape Maintenance Areas,
Landscape Entry Treatment Areas, or Storm Drain System, the Board shall
(i) obtain bids from at least two (2) reputable contractors, licensed in
California, which bids shall set forth in detail the work required to repair,
reconstruct and restore such damaged or destroyed portions of the Landscape
Maintenance Areas, Landscape Entry Treatment Areas, Landscape Access Areas or
Storm Drain System to substantially the same condition as existed prior to such
damage and the itemized cost of such work, and (ii) determine the amount of all
insurance .. proceeds available to the Association for the purpose of effecting such
repair, reconstruction and restoration.
10.2 Sufficient Insurance Proceeds. If upon such damage or destruction the
insurance proceeds available to the Association are sufficient to effect the
total repair, reconstruction and restoration of the damaged or destroyed portions
of the Landscape Maintenance Areas, Landscape Access Areas or Storm Drain System,
then the Association shall cause such to be repaired, reconstructed and restored
to substantially the same condition as the same existed prior to such damage or
destruction.
10.3 Insurance Proceeds Insufficient. If upon such damage or destruction
the proceeds of insurance available to the Association are insufficient to cover
the cost of repair, reconstruction and restoration of the damaged or destroyed
portions of the Landscape Maintenance Areas, Landscape Entry Treatment Areas,
Landscape Access Areas or Storm Drain System, the Board shall then be authorized
to specially assess all Lots proportionate to the Gross Acres of land in each Lot
in relationship to the total Gross Acreage in the Business Center for all
additional funds needed to comply with the obligation of the Association to
DEE111086 29
maintain the Landscape Maintenance Areas, Landscape Entry Treatment Areas,
Landscape Access Areas or Storm Drain System in accordance with Article IX
hereof.
ARTICLE XI
DURATION, MODIFICATION AND REPEAL
11.1 Duration of Protective Covenants. This Declaration shall continue and
remain in full force and effect at all times with respect to the Business Center
and each part thereof, now or hereafter made subject thereto (subject, however,
to the right to amend and repeal as provided in Section 11.2) for a period
commencing on the date of the recordation of this Declaration with the Office of
the County Recorder of San Diego County, California, and ending on March 1, 2014;
unless, within one (1) year prior to March 1, 2014, there shall be recorded an
instrument extending the term of this Declaration signed by the Property Owners
owning not less than seventy-five percent (75%) of the Gross Acres in the
Business Center.
11.2 Termination and Modification. This Declaration, or any prov~s~ons
hereof, may be terminated, extended, modified or amended, by the written consent
of the (i) Declarant alone, until such time as Declarant has conveyed
seventy-five percent (75%) of all Lots to Property Owners other than Declarant,
(ii) a vote of all Property Owners holding at least two-thirds (2/3) of the votes
of all Property Owners in the Business center after such time as Declarant has
conveyed at least seventy-five percent (75%) but not one hundred percent (100%)
of all Lots to Property Owners other than Declarant, or (iii) a vote of Property
Owners holding at least two-thirds (2/3) of the votes of all Property Owners in
the business Center after Declarant has conveyed one hundred percent (100%) of
all Lots to property Owners, other than Declarant; provided, that each such
termination, extension, modification or amendment shall apply uniformly to all
property in the Business Center; and further provided, however, that so long as
Declarant owns any part of the Business Center or for a period of fifteen (15)
years from the date of recordation hereof, whichever is shorter, no such
termination, extension, modification or amendment shall be effective without the
written approval of Declarant thereto. No such termination, extension,
modification or amendment shall be effective until a written instrument setting
forth the terms thereof is duly executed by the Board and Declarant, in the event
Declarant's approval is required; provided, however, that any part of the
Business Center which is subsequently conveyed or dedicated by Declarant for use
as a public roadway or other public use may be conveyed or dedicated free and
clear of this Declaration by execution and delivery of a deed by Declarant to the
appropriate governmental body.
11.3 Approval of Adjacent Property Owner. Notwithstanding the prov~s~ons of
Section 11.2 above, no amendment which materially or substantially affects the
uses and restrictions imposed by this Declaration, including but not limited to
the obligations or ability of the Association to maintain the Landscape
Maintenance Areas, Landscape Entry Treatment Areas, Landscape Access Areas and
the Storm Drain System, shall be valid unless the prior written consent of
DEEIII086 30
Theodore E. Gildred or Paul K. Tchang ("Adjacent Owners") as owners of the real
property adjacent to the Business Center and as owners of at least fifty percent
(50%) of the entity owning real property adjacent to the Business Center is
obtained. Said adjac'ent real property is more particularly described on attached
Exhibit "G". Said approval to any such amendment by the Adjacent Owners shall
not be unreasonably withheld. So long as the Adjacent Owners own any of the real
property or own at least fifty percent (50%) of the entity owning any of the real
property described in Exhibit "G", the Adjacent Owners shall have the right of
approval set forth herein. Said right of approval is personal in nature as to
the Adjacent Owners or their heirs only, and shall not be binding upon and inure
to the benefit of the subsequent purchasers and/or owners of all or any portion
of the adjacent real property set forth in Exhibit "G". Provided, however, in
the event the Adjacent Owners or their heirs have at least a fifty percent (50%)
interest in said subsequent purchasers and/or owners the right of approval set
forth above shall also be binding upon and insure to the benefit of such
subsequent purchasers and/or owners. Said right of approval cannot be assigned
by the Adjacent Owners, their heirs or such subsequent purchasers and/or owners.
ARTICLE XII
ENFORCEMENT
12.1 Enforcement by Board.
12.1.1 Improvements and Unimproved Lots. All Improvements and Lots
shall be maintained in an attractive, sightly and well-kept condition and in
accordance with the approved plans and specifications therefore. In the event
any such Improvement or Lot is not so maintained, the Board shall notify the
Property Owner or Lessee in writing by registered mail that said Improvement or
Lot is not being properly maintained. If such maintenance is not effected by the
Property Owner or Lessee within thirty (30) days from the date upon which the
Board sent such notice to the Property Owner or Lessee, the Board, or its
designee, shall have the right to the extent permitted by applicable laws, to
enter upon the Lot for the purpose of maintaining, restoring or repairing said
Improvement or Lot. The costs incurred by the Board in restoring, maintaining or
repairing said Improvement or Lot plus twenty-five percent (25%) allowance for
overhead shall be borne by the Property Owner or Lessee and shall be paid on
demand to the Board or to such other person or entity designated by such Board.
12.1.2 Remedies Upon Failure to Install Landscaping. In the event
the landscaping approved pursuant to Subsection 7.2.3.2 of Article VII above has
not been installed within the required period, the Board shall notify the
Property Owner or Lessee in writing that the landscaping is to be installed
within thirty (30) days from the date of such notice. If the landscaping has not
been installed within such additional thirty (30) day period, the Board or its
designated agent shall have the right to the extent permitted by applicable laws,
to enter upon the Lot for the purpose of installing the approved landscaping.
The costs incurred by the Board for installing such landscaping plus a
twenty-five percent (25%) allowance for overhead shall be borne by the Property
Owner or Lessee and shall be paid on demand to the Board, or to such other person
or entity designated by such Board.
DEE111086 31
12.1.3 Parking. Adequate off-street parking shall be provided by
each Property Owner in accordance with Subsection 7.2.5 of Article VII above. In
the event any employee, visitor, business invitee or company vehicles are parked
on any street, the Board shall notify the Property Owner or Lessee concerned in
writing by registered mail that on-street parking is occurring. If such
on-street parking continues to occur five (5) days after the date upon which the
Board sends such notice to the Property Owner or Lessee, the Board, or its
designee, shall have the right to assess a fine of Two Hundred Fifty Dollars
($250.00) for each day such on-street parking continues to occur five (5) days
after notice is sent, and such amounts shall be paid upon demand to the Board, or
to such other person or entity designated by the Board.
12.1.4 Liens. Until paid, the costs including interest and
attorney's fees, incurred by the Association for the enforcement of this
Declaration and/or (i) the cost incurred for maintenance and overhead provided
under subsection 12.1.1 above and/or (ii) the cost incurred for landscaping and
overhead provided under Subsection 12.1.2 above and/or (iii) the cost incurred
for towing and/or fines provided for under Subsection 12.1.3 above, shall be a
lien upon the real property of the Property Owner or upon the leasehold interest
of the Lessee and the Improvements on such Lot which may be enforced by Declarant
in the same manner provided in Section 9.11 of Article IX above for the
enforcement of liens.
12.2 Abatement and Suit.
12.2.1 Preventive Remedies. Declarant and/or the Association may
proceed at law or in equity to prevent the violation of this Declaration and
easements. Declarant and/or the Association or their duly authorized agents
shall have the right, upon violation of breach of any restriction set forth
herein, if such violation or breach continues for a period of thirty (30) days
after written notice thereof, to enter upon the Lot where such violation or
breach exists, and summarily to remove at the expense of the Owner, Lessee or
Occupant thereof, any structure, thing or condition that may be or exist thereon
contrary to the intent and meaning of the provisions hereof.
12.2.2 Declarant and/or Association's Rights. During reasonable
hours, Declarant, or its authorized representative, shall have the right to enter
upon and inspect any Site or Lot and the Improvements thereon erected for the
purpose of ascertaining whether or not the provisions of this Declaration have
been or are being complied with, and shall not be deemed guilty of trespass by
reason of such entry. Declarant and/or the Association, or their duly authorized
agents, shall have the additional right at any time and from time to time
following violation or breach of this Declaration to prosecute a proceeding at or
in equity against the person or persons who have violated or are attempting to
violate any of the provisions of this Declaration, to enjoin or prevent them from
doing so, to cause said violation to be remedied, and to recover damages for said
violation.
12.2.3 Other Parties' Rights. After request upon and/or the
Association to prevent any violation of this Declaration, and failure to act by
Declarant or the Association, the City, any Property Owner or Lessee shall
additionally have all enforcement rights provided for in this Declaration. In
DEEIII086 32
any agent of Declarant, shall be personally liable to any Owner, or to any other
party, including the Association, for any damage, loss or prejudice suffered or
claimed on account of any act, omission, error or negligence of any such person
or entity if such person or entity has, on the basis of such information as may
be possessed by him or it, acted in good faith without willful or intentional
misconduct.
3.4 Annual Membership Meetings. The initial Board may call the first
annual meeting of Members at any time, but no later than forty-five (45) days
after seventy-five percent (75%) of the Lots shown on the initial covered
Property and any recorded Declaration of Annexation are conveyed by Declarant to
Owners. Thereafter, the Association shall hold an annual meeting of the Members
in accordance with the By-laws of the Association.
3.5 Insurance. The Association shall acquire for the Association
(a) Casualty, (b) Public Liability and (c) Directors and Officers errors and
omissions insurance policies. The Association, acting by and through the Board,
may acquire any other insurance policies it deems necessary.
ARTICLE IV
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
4.1 Membership. A Property Owner shall automatically, upon becoming the
record Owner of a Lot, be a Member of the Association and shall remain a Member
thereof until such time as his ownership ceases for any reason, at which time his
membership in the Association shall automatically cease. Such membership shall
be appurtenant to and pass with the ownership of such Lot. The membership shall
not be transferred, pledged or alienated in any way, except that a Property
Owner, upon giving written notice to the Association, may give to a Lessee of an
entire Lot for a lease term in excess of five (5) years, a power coupled with an
interest to act as Property Owner's agent and proxy in all matters relating to
the Association which power and proxy shall automatically terminate when the
Lessee's tenancy ends for any reason. Any attempt to transfer a membership
prohibited by this Section shall be void and shall not be reflected upon the
Association's books and records. If the Property Owner of any Lot fails to
transfer the membership appurtenant thereto upon any transfer, whether voluntary
or involuntary, of the Lot, the Association shall have the right to record the
transfer upon its books and thereupon the membership outstanding in the name of
the prior Property Owner shall be null and void, but any agency and proxy given
to a Lessee under a power coupled with an interest shall remain in effect through
the period of the lease term and the Lessee's occupancy.
4.2 Voting. Each Property Owner, including the Declarant, shall have one
(1) vote rounded off to the nearest Gross Acre owned by such Property Owner,
including Declarant. Thus an Owner of 6.3 Gross Acres shall have six (6) votes,
and the Owner of 1.8 Gross Acres shall have two (2) votes and the Owner of 3.5
Gross Acres shall have four (4) votes. The number of gross acres for each Lot is
set forth on Exhibit "B" attached hereto and incorporated herein. Whenever there
DEE111086 8
is a vote to be made, pursuant to the terms of this Declaration, it shall be made
in accordance with the provisions of this Section 4.2 unless otherwise specified.
4.3 Initial Board of Directors. The initial Board of directors of the
Association shall consist of three (3) Directors and shall be appointed by the
Declarant upon the incorporation of the Association and shall hold office until
the initial Board calls the first annual meeting called pursuant to Paragraph 3.4
above.
4.4 Subsequent Board of Directors. At the first meeting of Members a new
Board consisting of five (5) Directors may be elected and such Board shall serve
until the next annual meeting. At each subsequent annual meeting, except as may
be otherwise provided by the By-laws, the Members of the Association shall elect
a Board consisting of five (5) Directors who shall serve until the next annual
meeting. The By-laws may provide for staggered terms and lengths of terms for
Directors different than those initially set forth in this Declaration and may
provide for a greater or lesser number of Directors than set forth herein;
provided, however, that in no event shall there be more than seven (7) directors
nor 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.
4.5 Administration and Compliance. Except as to matters requiring the
approval of Members as set forth in this Declaration, the By-laws or the
Articles, the affairs of the Business Center shall be administered by the
Association, through its Board, officers and agents in accordance with the
provisions of this Declaration, and the By-laws. In the event that the By-laws
are in any way inconsistent with this Declaration, then this Declaration shall
prevail and control. Each Owner, guest, Lessee, or occupant of a Lot shall
comply with the provisions of this Declaration, the By-laws and Rules and
Regulations of the Association, as lawfully amended from time to time, and
failure to so comply shall be grounds for (i) an action for damages and/or
injunctive relief, and (ii) such remedies, by legal proceedings or otherwise, as
are available by reason of this Declaration or the By-laws, each of which
remedies shall be cumulative and in addition to any other available remedy.
ARTICLE V
ARCHITECTURAL AND DEVELOPMENT REVIEW COMMITTEE
5. There is hereby created an Architectural and Development Review Committee
which shall be organized as follows:
5.1 Committee Composition. The Committee shall consist of three (3)
persons.
5.2 Alternate Members. There shall also be two (2) alternate members
either of whom may be designated by the Committee to act as a substitute for any
member of the Committee in the event of his unavailability or disability.
DEE111086 9
5.3 Appointment.
5.3.1 Until such time as Declarant has conveyed to the Property
Owners, other than declarant, seventy-five percent (75%) of the Lots contained in
the Business Center, Declarant shall have the right to appoint all members and
alternate members of the Committee.
5.3.2 After Declarant has conveyed to Property Owners, other than
Declarant, more than seventy-five percent (75%) but less than one hundred percent
(100%) of the Lots contained in the Business Center, the Property Owners (voting
on the basis of one (1) vote per Gross Acre or portion thereof owned by each
Property Owner as specified in Section 4.2) shall have the right to elect one (1)
member of the Committee. '
5.3.3 After Declarant has conveyed one hundred percent (100%) of
the Lots contained in the Business Center, the Association, through its Board of
Directors, shall have the rights of Declarant to appoint members of the
Committee, enforce the Architectural and Development Guidelines and to perform
Declarant's obligations under the Declaration; and upon such conveyance all
obligations of Declarant under the Declaration shall automatically terminate.
Notwithstanding the foregoing, as specified in Section 13.1 below, Declarant
retains the ability, at any time from and after the date of recordation of this
Declaration, to make the assignment specified in this Subsection 5.3.3 and
terminate its obligations hereunder.
5.4 Removal. The right to remove any member or alternate member of the
Committee shall be and is hereby vested solely in Declarant until such time when
Declarant no longer has the right to appoint members of the Committee; provided
that Declarant may not remove any member of the Committee appointed by the
Association pursuant to Subsection 5.3.2. At such time the Board has the right
to appoint all members of the Committee and shall thereafter have control of the
removal of the Committee Members. When the Board has the right to appoint all
members of the Committee, and the Board is presented with a petition for the
removal of one (1) or more of the Committee members signed by the Property Owners
owning at least twenty-five percent (25%) of the voting power of the Lots then
constituting the Business Center, the Board shall call for a vote upon such
removal within thirty (30) days of receipt of the aforesaid petition. No member
of the Committee shall be removed prior to the end of his term unless two-thirds
(2/3) of all the votes of the Property Owners are in favor of removing such
member.
5.5 Definition and Rights of Property Owners. For purposes of Sections 5.3
and 5.4, in the event Declarant reacquires any real property in the Business
Center by virtue of foreclosure or deed-in-lieu of foreclosure, with respect to
such reacquired property, Declarant shall be regarded solely on the same basis as
the other Property Owners. Any Property Owner may assign, revocably or
irrevocably, his voting rights hereunder to any Lessee or Licensee of his Lot,
providing such assignment is in writing and duly recorded with the secretary of
the Association.
5.6 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
DEEIII086 10
been removed shall serve such member's unexpired term. Members whose terms have
expired may be reappointed or re-elected.
5.7 Resignations; Vacancies. Any member of the Committee may, at any time,
resign from the Committee upon written notice to Declarant so long as Declarant
has the sole right to appoint any member, or upon written notice to the remaining
Committee members when the right to appoint any members is vested in the Board.
Vacancies on the Committee of members appointed by Declarant, however caused,
shall be filled by Declarant so long as Declarant has the right to appoint
members. Vacancies on the Committee of members appointed by the Board, however
caused, shall be filled by the Board.
5.8 Duties and Appeals. It shall be the duty of the Committee to perform
the functions required of it by this Declaration; to consider and act upon each
Application as are submitted to it pursuant to the terms hereof; to enforce
Architectural and Development Guidelines; and to perform all other duties
delegated to and imposed upon it by this Declaration. Any Property Owner,
Lessee, Licensee or Occupant may appeal any decision of the Committee to the
Board.
5.9 Meetings. The Committee shall meet as often as it, in its sole
discretion, shall deem necessary to properly perform its duties hereunder. The
vote or written consent of any two (2) members shall constitute an act by the
Committee unless the unanimous decision of its members is otherwise required by
this Declaration. The Committee shall keep written records of all actions taken
by it.
5.10 Architectural and Development Guidelines. The Board shall, from time
to time, and in its sole discretion, adopt, amend, by majority vote, rules and
regulations, to be known as Architectural and Development Guidelines, subject to
the approval set forth in Section 11.3 below. Said Architectural and Development
Guidelines shall interpret and implement the provisions hereof by setting forth
(a) the standards and procedures for Committee review, and (b) guidelines for
improvements which shall include, but not be limited to, guidelines for the
architectural design of Improvements and site plans, floor plans and exterior
elevations for Improvements, landscaping designs and irrigation plans, color
schemes, signage and exterior lighting finishes and materials for use in the
Business Center.
5.11 Exercise of Rights. Exercise of the right of appointment and removal,
as set forth herein, shall be evidenced by the recording among the committee's
regular records of a declaration identifying each new Committee member appointed
and each member replaced or removed from the Committee.
ARTICLE VI
RESERVATIONS OF EASEMENTS
6.1 Easements over Landscape Maintenance Areas, Landscape Entry Treatment
Areas. The Landscape Maintenance Areas and Landscape Entry Treatment Areas are
owned by the Owners, as part of their respective Lots. There is hereby reserved
DEEIII086 11
to Declarant, the Association or their duly authorized agents and representatives
an easement over each Landscape Maintenance Area and Landscape Entry Treatment
Area for the purpose of maintenance. Subject to the Association's easement for
maintenance and any other easements or rights specifically provided for herein,
each Owner shall have the exclusive use and enjoyment of the Landscape
Maintenance Areas and Landscape Entry Treatment Areas, or any portion thereof, on
his Lot.
6.2 Easements for Maintenance. Declarant hereby reserves to itself, its
successors and assigns, and agrees that it will grant to the Association, a
nonexclusive easement for ingress and egress over the Lots within the business
Center for the purposes of repair, reconstruction, restoration, landscaping and
maintaining the landscaping of the Landscape Maintenance Areas, Landscape Entry
Treatment Areas, Landscape Access Areas and for maintenance of the Storm Drain
System.
6.3 Easements over Landscape Access Areas. There is hereby reserved over
the Landscape Access Areas for the benefit of Declarant, the Association and all
Property Owners, Licensees and Lessees, an easement over the Landscape Access
Areas for ingress and egress. Pursuant to the provisions of this Declaration,
the Landscape Access Areas shall be installed and maintained by the Association
and the Association shall indemnify, defend and hold the Property Owner of each
Lot over which the Landscape Access Area is reserved harmless from all damages,
claims, losses and liabilities arising from or caused by the use of the Landscape
Access Areas by the Declarant, Association, Licensees, Lessees or Owners.
6.4 Transfer of Easement Rights. Prior to or concurrent with the first
conveyance of a Lot, Declarant will transfer to the Association ownership and
control of easements for the Landscape Maintenance Areas, Landscape entry
Treatment Areas, Landscape Access Areas and the Storm Drain System located on the
Property or Annexed Property. The Association will, upon such first conveyance
of a Lot thereupon assume the obligation for and thereafter perform all the
maintenance, repair and restoration of such Landscape Maintenance Areas,
Landscape Entry Treatment Areas, Landscape Access Areas and the Storm Drain
System. Prior to such grant of easements or the obtaining of encroachment
permits by the Association, Declarant shall complete the applicable installation
of improvements, facilities, landscaping and planting.
6.5 Easements Reserved and Granted. Any easements referred to in this
Declaration shall be deemed reserved or granted, or both reserved and granted, by
reference to this Declaration, in a deed to any Lot.
ARTICLE VII
REGULATION OF IMPROVEMENTS
7.1 Approval of Plans.
7.1.1 Approval Required. No Improvement shall be constructed,
erected, placed, altered, maintained or permitted to remain in the Business
DEE111086 12
Center unless they conform with federal, state or local regulations and until
plans and specifications and other documentation required by the Architectural
and Development Guidelines for said Improvements (the "Application"), which may
include but not be limited to site plans, floor plans, exterior elevations,
sections, materials, colors, landscaping, irrigation, signage, exterior lighting
and any other information needed to accurately describe the exterior appearance
or functional characteristics of said Improvements, have been submitted to and
approved in writing by the Committee.
7.1.2 Filing Fee. As a means of defraying its expenses, the
Committee may institute and require a reasonable filing fee to accompany the
Application based upon the following schedule:
7.1.2.1 When the Application is prepared by an Architect,
the Committee review fee shall be the sum of Two Hundred Fifty Dollars ($250.00)
per building per lot.
7.1.2.2 In all other cases, the Committee review fee shall
be the sum of Five Hundred dollars ($500.00) per building per lot.
7.1.2.3 In the event the Application is resubmitted, the
Committee may require an additional filing fee in an amount not to exceed One
Hundred Dollars ($100.00) for each resubmission.
7.1.2.4 The schedule of review fees may be modified from
time to time by the Committee to reflect changed circumstances such as inflation.
7.1.3 Basis for Approval. The Committee shall have the right to
disapprove the Application submitted to it in the event any part of it is:
(i) not in accordance with this Declaration and/or the Architectural and
Development Guidelines; and/or (ii) incomplete; and/or (iii) are not in
compliance with the relevant governmental approvals and regulations for the
Business Center; and/or (iv) are deemed by the Committee to be contrary to the
best interests of the Business Center or the Property Owners. The Committee
shall not unreasonably withhold its approval of the Application submitted to it.
In this connection, the Committee may base its approval or disapproval on
criteria which may include but are not limited to the following: the adequacy of
the building locations and dimensions on the Lot; the adequacy of the parking to
be provided; conformity and harmony of external design with neighboring
structures; effect of location and use of proposed Improvements on neighboring
Lots and the types of operations and uses thereof; relation of topography, grade
and finish ground elevation of the Lot being improved to that of neighboring
Lots; proper facing of main elevation with respect to nearby streets; adequacy of
screening of trash facilities and mechanical, air-conditioning or other rooftop
installations; adequacy of landscaping; and conformity of the Application to the
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. Notwithstanding approval by the Committee, no Application shall be
deemed approved unless it provides for safety or any other control as set forth
by local, state, federal or other governmental agencies. The decision of the
Committee shall be final.
DEEll1086 13
7.1.4 Result of Inaction. The Committee shall approve or
disapprove the Application within thirty (30) days from the receipt thereof. If
the Committee fails either to approve or disapprove the Application within said
thirty (30) day period it shall be conclusively presumed that the committee has
disapproved the Application unless the person submitting said plans and
specifications for approval shall have delivered to the Committee within fifteen
(15) days of the expiration of the thirty (30) day period, a notice in writing
setting forth the date of initial submittal of the Application to the Committee
and the fact that no approval or disapproval has been given by the Committee as
of the date of such notice. If the Committee fails to either approve or
disapprove the Application or or before the fifteenth (15th) day following the
receipt by the Committee of the notification, it shall be conclusively presumed
that the Committee has app'roved the Application. One (1) set of said Application
shall, with the approval or disapproval endorsed thereon, be returned to the
person submitting them and the other set shall be retained by the Committee for
its permanent files.
7.1.5 Proceeding with Work. Upon receipt of approval from the
committee pursuant to this Section, the Owner, Lessee, Licensee or Occupant, to
whom the same is directed and delivered, shall, as soon as practicable, satisfy
all conditions thereof and diligently proceed with the commencement and
completion of all approved construction, refinishing, alterations, excavations
and landscaping. In all cases, work shall be commenced within one (1) year of
the date of such approval. If work is not commenced within one (1) year
following the date of such approval, then the approval given pursuant to this
Article shall be deemed revoked unless the Committee upon request made prior to
the expiration of said one (1) year period, extends the time for commencing work.
7.1.6 Completion of Work. In any event, construction, refinishing,
alteration or excavation of any such Improvements previously approved under
Subsection 7.1.1 above shall be completed within two (2) years of the date of
such approval, except for so long as such completion is rendered impossible or
would result in great hardships due to strikes, fires, national emergencies,
natural calamities or other supervening forces beyond the control of the Owner,
Lessee, Licensee or Occupant or his agents. Failure to comply with this
Subsection 7.1.6 shall constitute a breach of this Declaration and subject the
defaulting party or parties to all enforcement procedures set forth herein or any
other remedies provided by law or in equity.
7.1.7 Estoppel Certificate. The Committee shall provide to any
Owner an estoppel certificate within thirty (30) days of receipt of a written
request for same which is accompanied by an ALTA or certified as-built survey of
the Lot if the Committee does not have an as-built survey in its files. Such
estoppel certificate shall certify that as of the date hereof (i) all
Improvements made or work done on or within a Lot comply with this declaration,
or (ii) such Improvements or work do not so comply, in which event the
certificate shall identify the non-complying Improvements and shall set forth the
cause or causes for such non-compliance. Any lessee, purchaser or encumbrancer
in good faith for value shall be entitled to rely on such certificate with
respect to the matters set forth therein, such matters being conclusive as
between the Committee and all such subsequent parties in interest.
DEE111086 14
7.1.8 Liability. Neither Declarant, the Committee nor any Member
thereof nor any agents of Declarant or of the Committee shall be liable for any
damage, loss or prejudice suffered or claimed by any Property Owner, Lessee,
Licensee or Occupant who submits an Application, and such person or entity who
submits an Application shall forever defend and hold the Declarant, the
Committee, the members thereof and the agents of each harmless from all damage,
loss or prejudice suffered or claimed by any third party on account of (1) any
defects in any plans, drawings, specifications or other documentation submitted
in any Application, revised or approved in accordance with the foregoing
provlsl0ns, or for any structural or other defects in any work done according to
such plans, drawings, specifications or other documentation; (ii) the approval or
disapproval of any Application, whether or not defective; (iii) the construction
or performance of any work, whether or not pursuant to an approved Application;
or (iv) the development of any Lot within the Business Center.
7.2 Limitations on Improvements.
7.2.1 All limitations contained herein are supplemental to controls
established by zoning, building, fire or other jurisdictional codes and
regulations and the more restrictive shall apply.
7.2.2 Setback Lines.
7.2.2.1 Buildings or structures of any kind or any part
thereof shall be subject to the following minimum setback requirements:
Front Setback -Thirty five feet (35') from the property line except
where a greater setback is otherwise required by ordinance or by the
Architectural and Development Guidelines. For purposes of this
Declaration a "front setback" shall relate to the boundary line or
boundary lines of any Lot adjacent to any public street.
Rear Setback -Twenty feet (20') from the property line except where
otherwise prohibited by ordinance or by the Architectural and
Development Guidelines.
Side Setbacks (interior lots) -Ten feet (10') from the property line
except where otherwise prohibited by ordinance or by the Architectural
and Development Guidelines.
7.2.2.2 Exceptions to Setback Requirement. The following
structures and Improvements may be excluded from the foregoing front setback
requirement and the Committee shall have the right to approve their locations
closer to property lines: (1) roof overhang; (2) steps and walks; (3) paving
and associated curbing for drive approaches, except that vehicle parking areas
shall not be permitted within thirty-five (35) feet of the street property line
or lines; (4) fences. except that no fence shall be placed within the street
setback area unless specific approval is given by the Committee in writing;
(5) landscaping; and (6) planters, which do not exceed three (3) feet in height.
7.2.2.3 Loading Facilities. Loading facilities, loading
docks, loading doors and other service areas shall be setback a minimum of
DEEll1086 15
forty (40) feet from any building elevation which fronts on any public or private
street, and no such loading or loading facilities shall be allowed, constructed
or maintained on any portion of the Business Center without the prior written
approval of the Committee. In no event will a loading facility be permitted on a
building elevation which fronts any public or private street.
7.2.3 Landscaping.
7.2.3.1 Except for portions of any Lot which shall be
maintained as Landscaping Maintenance Areas or Landscape Entry Treatment Areas by
the Association, every Lot on which a building is constructed in the Business
Center shall be landscaped by the Property Owner, Lessee, Licensee or Occupant in
accordance with the plans and specifications to be submitted to and approved by
the Committee pursuant to Section 7.1. above. In general, the Committee will
approve only those landscaping plans which conform with the Architectural and
Development Guidelines and which provide for the landscaping and maintenance of
the entire area of the site to be maintained, excluding the property maintained
by the Association. In addition to the foregoing, landscaping on any land
designated as a Landscape Installation Area shall be installed and maintained by
each Owner in accordance with plans prepared by the Owner and approved by the
Committee.
7.2.3.2 Landscaping for each Lot, including the Landscape
Installation Areas, as approved by the Committee, shall be installed prior to the
date of occupancy by any Lessee or Property Owner or date of substantial
completion of the building, whichever occurs first, unless the Committee shall
have approved in writing another final date of landscape installation. The term
"substantial completion" shall mean that date on which final City inspection is
obtained for the building shell.
7.2.3.3 All Lots shall be maintained in a weed-free
condition and free from rubbish or refuse at all times.
7.2.3.4 Except for areas maintained as Landscape
Maintenance Areas, Landscape Entry Treatment Areas or Landscape Access Areas, the
landscaping for all Lots shall be maintained as provided for in the Architectural
and Development Guidelines. In the event any act or condition caused by the
Property Owner, Lessee, Licensee or Occupant results in the destruction or
removal of any landscaping within such areas, other than Landscape Maintenance
Areas, the Property Owner, Lessee, Licensee or Occupant shall replace said
landscaping with materials of like size and kind as approved by the Committee.
7.2.4 Signs. Except for the Carlsbad Oaks Business Center monument
and street signs, no sign, billboard, or other advertising shall be erected,
placed or maintained within the Business Center without specific written approval
by the Committee and which:
7.2.4.1
governmental regulations; and
Is not in accordance with any applicable
7.2.4.2 Makes identification other than the name, business
and logo of the person or firm occupying the premises or those offering the
premises for sale or for lease; and
DEEllI086 16
7.2.4.3 Does not conform to the theme, size, style and
location as set forth in the Architectural and Development Guidelines or as
approved by the Committee; and
7.2.4.4 Exceeds thirty-two (32) square feet in size in the
case of "For Sale" or "For Lease" signs. In no event shall more than one (1) of
said types of signs be permitted for each Lot.
7.2.5 Parking Areas.
7.2.5.1 Paved off-street parking as required by rules of
any applicable governmental authority of the City of Carlsbad or the County of
San Diego or the State of California, or by any rules enacted by the Committee
(providing such rules are not in conflict with any applicable governmental
requirement) shall be provided by each Property Owner, Lessee, Licensee or
Occupant on his Lot to accommodate all parking needs for employee, visitor,
business invitee and company vehicles. The Committee shall have the authority to
disapprove any Application for the construction of any building in the Business
Center if such plans do not provide for paved off-street parking in compliance
with this Subsection 7.2.5. The intent of these provisions is to eliminate the
need for anyon-street parking. If parking requirements increase as a result of
a change in use or number of employees, additional off-street parking shall be
provided to satisfy the intent of this Section and eliminate the need for any
on-street parking which will be absolutely prohibited.
7.2.5.2 No parking shall be approved or permitted between
the fronts of any building and the street without specific written approval from
the Committee and upon submission of an Application to the Committee showing
screening and concealing of automobiles from the street.
7.2.5.3 Any area used for parking shall be paved, striped
and curbed.
7.2.5.4 No on-street parking within the Business Center
will be permitted.
7.2.5.5 Each Property Owner shall be required, and
Declarant covenants and agrees on behalf of itself and its successors and
assigns, to incorporate in each lease of space in any building located in the
Business Center the following provisions:
DEE111086
"On-street vehicle parking of any nature whatsoever
of any type by tenant, its employees and business
invitees is absolutely prohibited, and a violation
of this prohibition shall be deemed to be a default
under this lease and shall further constitute a
violation under the certain Declaration of Protective
Covenants recorded ,198 ,as
Document Number -,-in the
Official Records of the County Recorder's Office
of San Diego County."
17