Loading...
HomeMy WebLinkAboutCT 81-38; Carlsbad Industrial Associates; Tentative Map (CT)1557 KECC "? ''''- SAFJCO '..V-L INSURANCE CO, WHEN RECORDED MAIL TO: LATHAM & WATKINS 701 B Street, Suite 2100 San Diego, California 9210.1 Attention: Jon D. Deraorest, Esq. 82-276242 mw^rilAKCItKCI'v.'li i-CA.I ISS2 SEP -7 *H 10= 30 L VCR i L. LYLECCUrilY RF S0~ MG Lf- DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS FOR PALOMAR INDUSTRIAL CONDOMINIUfJS .1558 INDEX PAGE Introduction 1 Article I - Definitions 3 Article II - Property Rights in the Units and Common Area 9 Article III - Owners Association 18 Article IV - Duties and Powers of the Association 21 Article V - Covenant for Maintenance Assessments ... 31 Article VI - Nonpayment of Assessments 38 Article VII - Use Restrictions 42 Article VIII - Architectural Control 50 Article IX - Beneficiary Protection ... 56 "Article X - Partition and Change in Units 61 Article XI - Damage or Loss to Improvements '. . . . 64 Article XII - Right of First Refusal 66 Article XIII - General Provisions 67 1550 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR PALOMAR INDUSTRIAL CONDOMINIUMS THIS DECLARATION is made this 5" day of Y / 1982, by Carlsbad Industrial Associates, Ltd., a California limited partnership, hereinafter referred to as "Declarant": WI.TNESSETH: WHEREAS, Declarant is the owner of the real prop- erty (the "Property") in the County of San Diego, State of California, described in Section 1.20 hereor; WHEREAS, Declarant deems it desirable to impose a general plan for the improvement, development and mainte- nance of the Property and to adopt and establish covenants, conditions and restrictions upon the Property for the pur- pose of enforcing and protecting the value, desirability and attractiveness thereof; WHEREAS, Declarant deems it desirable to set aside certain areas of the Property as common araa for the use of the owners of the condominium Units to be created on the Property, and to create a corporation to which shall be dele- gated and assigned the power of collecting and disbursing funds pursuant to the assessments and charges hereinafter created and referred to, and administering and enforcing these covenants, conditions and restrictions; WHEREAS, Palomar Industrial Associates, a nonprofit corporation, will be incorporated unci^r the laws of the State of California for the purpose of exercising the powers and functions aforesaid; and WHEREAS, Declarant will sell, lease or otnerwise convey all of said Property subject to certain protective covenants, conditions and restrictions hereinafter set forth; NOW, THEREFORE, Declarant hereby covenants, agrees and declares that all of the Property shall be held, sold, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved subject to the following covenants, conditions, restrictions and easements, which are hereby declared to be for the benefit of the whole Property. These covenants, conditions, restrictions and easements shall run with the Property and shall be binding upon, and inure to the benefit of, the Property, any portion thereof, and any interest therein, and shall be binding upon, and inure to the benefit of, all parties having or acquiring any right, title or interest in the Property or any portion thereof and upon their successors and assigns, and are imposed upon the Property and every part thereof as equitable servitudes in favor of each and every portion thereof. 1561 ARTICLE j. DEFINITIONS Section 1.01. "Architectural Committee" shall mean and refer to the committee having primary responsibil- ity for the supervision of architectural design, development and control, as further provided in Article VIIX hereof. Section 1.02. "Articles" or "Articles of Incorpo- ration" shall mean and refer to the Articles of Incorporation of the Association which have been or will be fiJed in the office of the Secretary of State of the State of California, as the same may be amended from time to time. Section 1.03. "Assessment" shall mean and refer to any or all of the Assessments hereinafter defined: (a) "Regular Assessments" shai.1 mean and refer to a charge against each Unit and its Owner representing a por- tion of the cost to the Association to provide for and pro- mots the health, safety and welfare of the Members of the Association and, in particular, for the improvement and maintenance of the properties, services, and facilities devoted to this purpose and related to the use and enjoyment of the Common Area, including, without limitation, estab- lishing and maintaining reserves for such purposes. (b) "Special Assessment" shall mean and refer to a charge against a particular Owner and his Unit, directly 1502 attributable to such Owner, for a i-oaaoiir.it> I o line or penalty levied by the Association for a violation ol.' tint; Declara- tion or the Articles and Byltiwu of l.he AnBociation, or for certain costs incurred by the Aaiioaiation or Oot:larant for materials or services furnished to ruich Owner or his Unit at the request of or on behalf of such Owner as a result of any Owner failing to maintain any portion of his Unit in accor- dance with the provisions of" this Declaration or for material or services furnished to the Common Area or any portion of any Unit which the Association maintains pursuant to this Declare tion, as a result of the negligence or willful mis- conduct of any Owner, his employees, guests or invitees, or for excessive use or special use of the services or facilities provided by the Association, including but not limited to parking, trash removal and maintenance of improvements. (c) "Capital Improvements Assessment" shall mean and refer to a charge against each Unit and its Owner repre- Bcntlncj a portion of the cost to the Association for the installation, construction, repair or replacement of any capital improvements, including the necessary fixtures and pt:rnoiHil proj>»rl.y related thereto, on any Common Area or any other portion of the Project upon which the Association may be required to install, construct, repair or replace any capital improvements as provided in this Declaration, which 1563 cost has not been provided for by reserves established by Regular Assessments paid by the Members. Section 1.04. "Association" shall mean and refer to Palomar Industrial Associates, a nonprofit mutual benefit corporation, incorporated under the laws of the State of California, and its successors and assigns. Section 1.05. "Association Rules" shall mean and refer to the rules and regulations adopted by the Board pur- suant to this Declaration and the Bylaws, as such rules and regulations may be amended from time to time. Section 1.06. "Board" or "Board of Directors" shall mean and refer to the Board of Directors of the Asso- ciation. Section 1.07. "Building" shall mean and refer to the building containing the Units of the Project. Section 1.08. "Bylaws" shall mean and refer to the duly adopted Bylaws of the Association, as the same may be amended from time to time. Section 1.09. "Common Area" shall mean and refer to the Property, excluding the Units, and any other real or personal property owned, leased, maintained or administered by the Association, or over which the Association has an easement, for the common use and enjoyment of the Members of the Association. 1564 Section 1.10. "Common Expenses" shall mean and refer to the actual and estimated costs of: maintenance, management, operation, repair and replacement of the Comm<m Area and the Units, to the extent provided in this Declara- tion; unpaid assessments; maintenance of a fire detection system; management and administration of the Association, including, but not limited to, compensation paid by the Asso- ciation to accountants, attorneys and employees, if such services benefit the Common Area; reasonable reserves as appropriate; .all taxes paid by'the Association; insurance premiums and bonds covering the Association and/or the Com- mon area; amounts paid by the Association for the discharge of any lien or encumbrance levied against the Common Area or portions thereof; amounts paid or incurred by the Association in collecting assessments pursuant to Article V hereof, including amounts expended to purchase a Unit in connection with the foreclosure of the assessment lien against such Unit and expenses incurred by the Association for any reason whatsoever in connection with the Common Area, this Declara- tion or any amendment to this Declaration, the Articles, or Bylaws or in furtherance of the purpose of the Association or in the discharge of any obligation imposed on the Associa- tion or the Board of Directors of the Association by this Declaration or any amendment to this Declaration. 1565 Section 1.11. "Condominium Plan" shall mean and refer to the Condominium Plan approved by the City of Carlsbad in connection with its approval of the Project and to be recorded in the Official Records of said County with respect to the Property, pursuant to Sections 783 and 1350 through 1359 of the California Civil Code. Section 1.12. "Conveyance" shall mean and refer to conveyance of a fee simple title of any part of the Prop- erty. Section 1.13. "Declarant" shall mean and refer to the parties named in the first paragraph of this Declaration and their respective heirs, successors anu assigns, Section 1.14. "Declaration" shall mean and refer to this Declaration of Covenants, Conditions and Restrictions, as it may be amended and supplemented from time to time as "further provided herein. Section 1.15. "Deed of Trust" shall mean and refer to any duly recorded deed of trust, mortgage or other convey- ance, hypothecation or encumbrance of a Unit or interest therein to secure the performance of any obligation, which will be void and reconveyed upon completion of such perform- ance. The term "First Deed of Trust" shall refer to a Deed of Trust which has priority over any other Deed of Trust. The terra "Beneficiary" shall mean the beneficiary or mortgagee 156G under any Deed of Trust, and the term "First Beneficiary" shall mean the holder of a First Deed of Trust. "Inst.icu- tional Holder" shall mean a First Beneficiary which is a commercial bank, federally or state chartered savings and loan association or other corporation. The term "Trustor" shall mean the trustor or mortgagor under any Deed of Trust. Section 1.16. "Floor space" shall mean and refer to the square footage of the floor area of the Unit(s) as set forth in the Condominium Plan, as the same may be restruc tured and reallocated in accordance with the provisions of this Declaration. Section 1.17. "Member" shai.l mean and refer to every person or entity who holds membership in the Associ- ation as provided in Article III, Section 3.01. Section 1.18. "Owner" shall mean and refer to the person or entity who is the record owner of a Unit, but excluding those having such interest merely as security for the performance of an obligation. "Ownership" shall mean the status of being an Owner. Section 1.19. "Project" shall mean and refer to the improvements, consisting of an industrial building and appurtenant parking and structures, constructed by Declarant upon the Property, together with all repairs, replacements and additions to be constructed by the Association. 156: Section 1.20. "Property" shall mean and refer to all of the real property described in Exhibit "A" attached hereto and made a part hereof. Section 1.21. "Unit" shall mean and refer to an estate in real property as defined in California Civil Code Section 783, consisting of a separate interest in a condo- minium unit depicted on the Condominium Flan together with all right, title, easements and interest appurtenant thereto. The Units are more particularly described in Article II hereof, arid in the Condominium Plan., ' ARTICLE II PROPERTY RIGHTS IN THE UNITS AND COMMON AREAS Section_2.01. Ownership Interests in the Project. Declarant, in order to establish a plan or condominium own- ership for the Project, shall divide the Project into the following freeho.1^ estates: (a) Each Unit shall be a separate freehold estate as defined in Section 1350 of the California Civil code, consisting of one or more elements comprising a Unit as more fully described in the Condominium Plan, each bounded by and contained within the interior unfinished surfaces of the original perimeter walls (or as they may be reconstructed in accordance with the Declaration), floors, roofs, windows and doors thereof. Each Unit includes both the portion of the 1568 Building so described and the airspace so encompassed, and all non-bearing walls, windows and doors in said Unit, but the following are not a part of the Unit: bearing walls, columns, floors, roofs, slabs, foundations> area between the unfinished surfaces separating a Unit from aa adjoining Unit, warehouse doors, common trash receptacles, irrigation equipment and other central services, pipes, ducts, flues, chutes, conduits, wires, exterior lighting and other utility instal- lations wherever located (except all utility installations and/or outleta thereof when located within the Unit, and except those items of equipment, including mechanical and electrical equipment, which exclusively serve a Unit). In interpreting this Declaration, the Condominium Plan and con- veyances, the existing physical boundaries of a Unit shall be conclusively presumed to be its boundaries rather than the metes and bounds (or other description) expressed in the Declaration, Condominium Plan or Conveyance regardless of settling or lateral movement of the Building and regardless of minor variance between boundaries shown on the Condominium Plan, Conveyance or Declaration and those of the Building, (b) Each Owner shall have a non-exclusive ease- ment appurtenant to his Unit for ingress, egress, use an<i enjoyment over the Common Area. 10 1560 (c) Portions of the Comraon Area, to be shown arvd described on the Condominium Plan as parking spaces, are hereby set aside as a restricted area and are to be allocated as hereafter determined by the Association. Section 2.02. Title to Units. Declarant hereby covenants for itself, its successors and assigns, that it will convey fee title to the Units by deed and the interest so conveyed shall be free and clear of all encumbranees and liens, except current real property taxes, which taxes shall be prorated to the date of transfer, and easements, condi- tions and reservations then of record, including those set forth in this Declaration, except as may otherwise Le express- ly provided in a Conveyance to a particular purchaser. Section 2.03. Title to Common Area. Declarant hereby covenants for itself, its successors and assigns, that it will convey fee title to, or an easement over, the Common Area to the Association, free and clear of all liens and encumbrances, except current real property taxes, which taxes shall be prorated to the date of transfer, and ease- ments, conditions and reservations then, of record, including those set forth in this Declaration. Said Conveyance shall be made to the Association prior to or concurrently with the first conveyance of a Unit. 11 Section 2.04. Members' Easements of Enjoyment, Every Member shall have a right and easement in and to the Common Area for ingress, egress, access, parking, use and enjoyment, including but not limited to an easement for park- ing purposes, more particularly described in Section 2.09 below; such easements shall be appurtenant to and shall pass with the title to every Unit, subject to the following provi- sions : (a) The right of the Association to establish uniform or reasonable rules and. regulations pertaining to the use of the Common Area; (b) The right of the Association to suspt*.,! the voting rights and right to use the Common Area (for other than access, ingress and egress) by a Member for (1) any period during which any assessment against his Unit remains unpaid and delinquent and (2) for a period not to exceed thirty (30) days from any single infraction of the rules and regulations of the Association, provided that any suspension of such voting rights or right to use the Common Area, except for failure to pay assessments, shall be made only by the Association or a duly appointed committee thereof, after notice and hearing given and held in accordance with the Bylaws; 12 1571 (c) The right of the Association or Declarant to modify reserved easements as set forth in Section 2.08(e) below; (d) The right of the Association or Declarant to grant or transfer all or any part of its easements in the Common Area to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the Members. No such grant or transfer shall be effec- tive unless written notice of the proposed action is sent to every Member not less than fifteen (15) days nor more than ninety (90) days in advance, and unless an instrument signed by Members entitled to cast two-thirds of the votes of the membership has been recorded, agreeing to such dedication or trans fer. Section 2.05. Delegation. Any Member may dele- gate in accordance with the Bylaws, his right of enjoyment to his employees and invitees. Section 2.06. Waiver. No Member may exempt him- self from personal liability for assessments duly levied by •the Association nor release his Unit from the liens and charges hereof, by waiver of the use and enjoyment of the Common Area and the facilities thereon or by abandonment of his Unit. 13 Section 2.07. Encroachments. Each Unit within the Property is hereby declared to have an easement over all adjoining property (including Units and Common Area) for the purpose of: (a) Accommodating eaves, overhangs and other simi- lar projections, if any, created during the original construc- tion of the improvements on the Property or the reconstruction or repair of any improvements in accordance with plans and specifications approved by the Architectural Committee, or maintenance or. repair of neces,sary services, including but not limited to fire protection systems, security lighting systems and utilities. (b) Accommodating minor encroachments due to orgi- nal engineering or surveying errors, errors in original con- struction, errors in reconstruction or repair in accordance with plans and specifications approved by the Architectural Committee, or settlement or shifting or movement of a building or other structure. (c) Maintaining, repairing and reconstructing such eaves, overhangs, projections and encroachments. (d) Each Owner agrees for himself and his heirs, successors, executors, administrators and assigns and the Association agrees, for itself, and its successors and assigns, that each will permit free access at reasonable times and 1573 upon reasonable notices by each Owner for whose benefit an easement is created hereunder for the purpose of exercising his rights with respect to such maintenance, repair and/or reconstruction. Section 2.08. Reserved Easements. (a) There are hereby reserved by Declarant, together with the right to grant and transfer the same, easements over the Common Area, the Units and the exterior and roofs of any improvement constructed thereon for the installation, maintenance, service, repair, reconstruction and replacement of electric, telephone, water,'gas, sanitary sewer lines and drainage facilities, as shown on the recorded tract or parcel maps of the Property or otherwise created. (b) There is hereby reserved by Declarant, includ- ing without limitation, its employees, agents, successors and assigns, and representatives and prospective purchasers of Units, together with the right in Declarant to grant and transfer the same, the non-exclusive use of the Common Area for construction, display, sales offices and incidental park- ing and exhibit purposes in connection with the construction, development, sale and leasing of Units within the Project and for such other purposes as are consistent with this Dec- laration; provided such use will terminate upon the conveyance o£ all of the Units by Declarant. 1574 (c) There are hereby reserved by Declarant, together with tha right to grant and transfer the same, easements over the Property for the purpose of permitting the Associa- tion, the Board of Directors, the Architectural Committee, Declarant and others to discharge their rights and obligations as described in this Declaration. (d) Every Unit shall have an easement reserved in favor of the Declarant for the purpose of ingress and egress and for construction purposes in connection with Declarant's construction of the Project. (e) Declarant or the Association shall have the right to modify any of the foregoing reserved easements, by changing the location or use thereof, at any time and from time to time, so long as such modification does not mate- rially and adversely affect the rights of the Owners, in ~aggregate, to the continuing use and enjoyment of their respec- tive Units. Section 2.09. Parking Plan. The Board may allocate such portions of the Common Area shown and described on the Condominium Plan as parking spaces for the exclusive use of the Owner of each Unit in accordance with a reasonable arid nondiscriminatory parking plan to be adopted.by the Association, which plan may be amended from time to time. The location o£ each such space so assigned shall further be subject to 16 1575 change by the Board from time to time as the Board shall deem appropriate in its sole discretion reasonably exercised. The Association has full power to regulate the parking plan and to enforce any parking violations, including the right to call local police to issue citations or tow vehicles which are violating the parking rules of the Association or the laws or ordinances of the City of Carlsbad or other governmen- tal agencies having jurisdiction. Any requests for changes in parking location and any disputes with respect to parking shall be referred to the Association for review and disposi- tion in its sole discretion. There shall be no tenant or employee parking in any designated visitor parking area, and no parking at all in any designated loading area or loading zone. Section 2.10. General Restrictions. All present and future Owners of the Units by their acceptance of their respective deeds, covenant and agree as follows: (a) That except as provided in Article X, the Common Area shall remain undivided, and no Owner shall bring an action for partition, it being agreed that this restriction is necessary in order to preserve the rights of Owners with respect to the operation and management of the Project. (b) That if any portion of the Common Area en- croaches upon the Unites, a valid easement for the encroachment 17 1576 and for the maintenance thereof, so long as it stands, shall and does exist. In the event any structure is partially or totally destroyed, and then rebuilt, the Owners of the. Units agree that minor encroachments of parts of the Common Area onto the Units due to construction shall be permitted and that valid easements for said encroachments and the mainte- nance thereof shall exist. (r) That the Common Area is c.nd always shall be subjsc- to easements for minor encroachments thereon of the Units and that a non-exclusive easement for ingress, egress and support for the common Area is appurtenant to each Unit and the Common Area is subject -co such easement. (d) That a perpetual and non-exclusive easement for the purpose of ingress and ey^ess in connection with the maintenance of the Common Area, including the exterior of the Building, by the Association, is hereby granted to the Association by each Owner, over the entire Common Area and over the exterior and interior of each Unit. ARTICLE III OWNER'S ASSOCIATION Section 3.01. Membarship. Every person or entity who or which is an Owner of a fee or undivided fee interest in any Unit which is subject by convenants of record to assess- ment by the Association shall be a member of the Association. 1577 The foregoing is not intended to include persons or entities who hold an interest in a Unit merely as security for the performance of an obligation. The terms aud provisions set forth in this Declaration, which are binding upon ali Owners and all Members in the Association, are not exclusive, as both the Member and his Unit shall, in addition, be subject to the terms and provisions of the Articles of Incorporation and the Bylaws of the Association. Membership shall be appur- tenant to and may not be separated from an Owner's interest in a Unit. Ownership of such Unit shall be the sole quali- fication for membership. ' • Section 3.02. Voting Rights. The Association shall have two classes of membership. Class A. Class A Members shall be all Owners with the exception of Declarant. Each Class A Member shall be entitled to one (1) vote for each square foot of Floor Space in each Unit owned for which the Owner has then paid all current monthly assessments provided for hereinbelow. When more than one person holds an undivided interest in any Un.it, all such persons shall be Members. The vote for surh Unit shall be exercised as they among themselves determine, but in no event shall the number of votes cast wich respect to any Unit be greater than the number of votes for such Unit set forth in the Condominium Plan, except by expansion/con- traction of a Unit as provided for elsewhere herein. 19 1578 Class B. The Class B Member shall be the Declarant, and shall be entitled to five (5) votes for each square foot of Floor Space in a Unit owned in the Project upon which Declarant has then paid all current monthly assessments. The Class B membership shall cease and be converted to Class A membership when the total votes outstanding in the Class A membership equals the total votes outstanding in the Class B membership. Any provisions in this Declaration, the Articles or the Bylaws calling for membership approval of action to be taken by the Association shall expressly require an affirma- tive vote of the stated percentage of each class of Members required in that particular provision. Further, where such governing instruments require the vote of each class of mem- bership as a prerequisite to the initiation of action by or in the name of the Association, any requirements elsewhere in this Declaration, the Articles or Bylaws that the vote of the Declarant shall be excluded, shall not be applicable. Notwithstanding the foregoing, at such time when the Class B membership shall cease and be converted to Class A member- ship, any and all provisions in this Declaration, the Articles and the Bylaws requiring the approval of both classes of Members or the voting power of the Association shall be understood arid construed to require the approval of the Class A Members only. 20 Section 3.03. Vesting of Voting Rights. The vot- ing rights attributed to each Unit shall not vest until the assessments provided for hereinbelow have been levied by the Association against such Unit. Section 3.04. Transfer. The membership held by any Owner of a Unit shall not be transferred, pledged, or alienated in any way, except upon the sale or encumbrance of the Owner's Unit. In the event of such sale or encu-ubrance, the Association membership may only be transferred, pledged or alienated to a bona fide purchaser of the Unit, or to the Beneficiary (or third-party purchaser) of such Unit upon a foreclosure sale. Any attempt to make a prohibited transfer is void, and will not be reflected upon the books and records of the Association; the Association shall have the right to record a transfer only upon receipt of evidence of such transfer satisfactory to the Association. ARTICLE IV DUTIES AMD POWERS OF THE ASSOCIATION Section 4.01. The Association is hereby desig- nated as the management body of the Project. The Members of the Association shall be the Owners in the Project as pro- vided herein, and the affairs of the Association shall be managed by a Board of Directors as more particularly set forth in the Bylaws of the Association. The initial Board 21 1580 of Directors shall be appointed by the incorporating Direc- tors or their successors. Thereafter, the Directors shall be elected as provided in said Bylaws. Section 4.02. The Association shall have the right and power to do any and all things that a corporation organ- ized under the nonprofit corporation law of the State of California may lawfully do which are necessary for the manage- ment and operation of the Project. Subject to the provisions of the Articles and the Bylaws, the powers of the Association shall include, but shall not necessarily be limited to, the specific acts hereinafter enumerated and those set forth in the California Civil Code, Section 1355(b), Subsections (1) through (9). Section 4.03. Without limiting the generality of the foregoing, the Association shall possess, perform, and execute the following powers and duties: (a) Provide water, sewer, gas, electricity, gar- bage and trash collection, and other necessary utility ser- vices for the Comin-n Area; (b) Provide: (i) A policy or policies of fire insurance with extended coverage endorsement, for the full replacement value of the entire Project, including, without limitation, the Common Area arid the Units but exciuding the Owners' per- sonal property, payable as provided herein, or such other 22 1581 fire and casualty insurance as th3 Association shall deter- mine gives substantially equal or greater protection, insuring the owners and their respective Beneficiaries, as their inter- est may appear, and as to each of such policies which will not be voided or impaired thereby, the Owners hereby waive and release all claims against the Association, the Board of Directors, any Manager (as provided for hereinbelow), the Declarant, and agents and employees of each of the foregoing, with respect to any loss covered by such insurance, whether or not caused by the negligence of, or breach of any agreement by, said persons, but only to the extent of the insurance proceeds received in compensation fc~ "uch loss. (ii) A policy or policies of liability insur- ance covering the Association, the Board of Directors, the Declarant, any Manager and the agents and employees of each of the foregoing, against any liability to the public or to any Owner, his invitees and/or tenants, arising from or inci- dent to the ownership, occupation, use, maintenance, and/or repair of the Common Area and Units, and if reasonably obtain- able, a cross-liability endorsement insuring each insured against liablity to each other insured; limits of liability shall be set by the P.ssociation and such limits and coverage shall be reviewed at least annually by the Association and increased or decreased in its discretion; 23 (iii) Workers' compensation insurance to the extent necessary to comply with any applicable laws; (iv) Such other policies of insurance as tit- Association may deem appropriate; and (v) The Association shall be deemed the trustee for the Owners in connection with any insurance pro- ceeds paid to the Association under any of the aforesaid policies, and shall have full power to receive such funds on behalf of the Owners and Beneficiaries, as their interests appear, and to deal therewith. (c) In its discretion, employ or contract with a person or firm (hereinafter referred to as "Manager") to act as agent or management company or to otherwise perform all or any part of the duties and responsibilities of tha Asso- ciation or to exercise any of the powers of the Association. The Manager, if any, shall manage and supervise the use and operation of the Common Area. (d) Paint, repair and maintain in a neat, safe, attractive, sanitary and orderly condition all portions of the Common Area, including all portions of the improvements in the Project (but excluding therefrom each Unit), equip- ment, landscaping and furnishings in and upon the Common Area. 1583 (e) In addition to all other provisions set forth herein respecting the maintenance of the Common Area, main- tain in reasonable condition all storm drains, sanitary sewers, private streets, if any, utilities, and open spaces within the Common Area. (f) Pay all real and personal property taxes and assessments which the Association is required to pay for pursuant to the terms and provisions of this Declaration or the Bylaws, unless separately assessed to the Owners. (g) Obtain any other material, supplies, furni- ture, labor, services, maintenance, repairs, structural alterations and insurance which the Association is required to pay for pursuant to the terms and provisions of this Dec- laration or by law. (h) Maintain the outer walls of the Project, including roofs and repainting of all exterior painted sur- faces, and any landscaping which has been installed by Dec- larant on the Project, including the replacement thereof; all in an attractive, neat and orderly condition. The Asso- ciation shall be responsible for maintenance, repair and replacement as necessary of any heating, air conditioning or . telecommunications equipment, located on the roofs of buildings, and the cost of such maintenance, repair and replacement shall be charged as a Special Assessment against the Owners of the Units specifically served by such equipment. 1584 (i) Establish and maintain a working capital and contingency fund from Regular Assessments for such purposes and in such amounts as may be determined by the Board of Directors of the Association. (j) Cause financial statements for the Association to be regularly prepared and copies distributed to sach Member of the Association as follows: (i) A pro forma operating statement (budget) for each fiscal year shall be distributed not less than sixty (60) days before the beginning of the fiscal year. (ii) A balance sheet as of an accounting date which is the last day of the month closest in time to six (6) months from the date of closir.;, :.f the first sale of a Unit and an operating statement for the period from the date of the first closing to the said accounting date, shall be distributed within sixty (60) days after the accounting date. This operating statement shall include a schedule, of assess- ments received, and receivable, identified by the number of the Unit, and the name of the person or entity assessed. (iii) A balance sheet as of the last day of the Association's fiscal year and an operating statement for said fiscal year shall be distributed within ninety (90) days after the close of the fiscal year, prepared by the Association's Chief Financial Officer or certified public accountants. 26 158:5 (k) Establish, change, collect and pay out of the assessments provided for hereinbelow all costs and expenses incurred by the Association in connection witu the perform- ance and execution of all of the aforesaid powers and duties, and any other powers and duties which the Association may assume as provided for in Section 4.04 hereinbelow. Section 4.04. The Association, acting at its option and by and through its Board of Directors, may assume, perform, and execute the following powers and duties: (a) Provide such other personnel as the Association deems necessary and proper to'assist in the operation of the Association and/or management of the Common Area, reyardless of whether such other personnel are employed directly by the Association or otherwise. (b) Incur any liability or pay any costs or expenses for a Unit or Owner thereof, provided, however, that in the event the Association does incur any such liability or pay any such costs or expenses, the amount thereof shall be speci- fically assessed to the Owner of such Unit; provided further, however, that nothing herein shall permit the Association to assess the Owners for any new improvements or additions to the Common Area except pursuant to the relevant provisions of this Declaration. 27 (c) Provide any other material, supplies, furni- ture, labor, services, maintenance, repairs, structural altera- tions, or insurance, or pay any taxes or assessments, which in the opinion of the Board of Directors shall be necessary or proper for 'the operation of the Common Area for the benefit of the Owners, or for the enforcement of this Declaration. (d) Have the power and duty, subject to the rights of Declarant as provided herein, to enforce the provisions of this Declaration by appropriate means, including without limitation, the expenditures of'funds of the Association, the employment of legal counsel and the commencement of actions. Section 4.05. Except as otherwise provided in Section 4.09, no contract entered into by the Association or the Board of Directors acting for and on behalf of the Asso- ciation may have a term longer than one (1) year, except with the vote or written assent of a majority of the voting power of the Association. Section 4.06. In the event that the Association shall delegate any or all of its duties, powers, or func- tions to any person, corporation, or firm to act as Manager, neither the Association nor the members of its Board of Direc- tors shall be liable for any omission or improper exercise by the Manager of any such duty, power, or function so dele- gated. 28 1587 Section 4.07. The Association may take any and all action deemed by it to be expedient to abate, control or limit any nuisance or unsafe or disorderly condition ~r cc.iduct on the Property by any Owner or other person. Costs thereof shall be charged to any Owner responsible by a Special Assess- ment. In the event of any such situation, or, of any emergency involving illness or potential danger to life or property, the Association, any person authorized by the Association, and any Owner may enter any Unit if acting in good faith. Such entry shall be made with as little interference to the Owner of such Unit as is reasonably practicable. In the event that any damages shall be proximately caused by or result from said entry, the Association shall repair the same at its expense unless the Owner was responsible for the situation which resulted in such entry. Section 4.08. The Association, or any person auth- orized by the Association, shall have the right to enter, upon reasonable notice, any Unit to effect necessary repairs which the Owner has failed to perform or which are necessary in connection with the repairs to the Common Area or an adjoining Unit. Section 4.09. The Board of Directors of the Asso- ciation shall be prohibited from taking any of the following actions, except with the vote or written assent of a majority or the voting power of the Association. 29 1588 (a) Entering into a contract with a third person wherein the third person will furnish goods or services for the Common Area or the Association for a term longer thsri one year with the following exceptions: (i) A management contract; (ii) A contract with a public utility company if the rates charged for the materials or services are sub- ject to governmental regulation; and (iii). Prepaid casualty and/or liability insur- ance policies of not to exceed three (3) years duration, (b) Incurring aggregate expenditures for capital improvements to the Common Area in any fiscal year in excess of 5% of the budgeted gross expenses of the Association for that fiscal year; or (c) Selling during any fiscal year property of the Association having an aggregate fair market value greater than 5% of the budgeted gross expenses of the Association for that fiscal year. Section 4.10. The Association is authorized and empowered to grant such licenses, easements, and rights-of- way for sewer lines, water lines, underground conduits, storm drains, and other public utility purposes over those portions of the Common Area upon which no building or other structure has been erected as may be necessary and appropriate for the 30 1589 orderly maintenance, preservation of the health, safety, convenience, and welfare of the.Owners. Section 4.11. Except as provided elsewhere in this Declaration relating to restoration of damaged iu.prove- ments, the Association may construct nev; improvements or additions to the Common Araa or demolish existing improve- ments, provided that in the case of any improvement, addi- tion, or demolition involving a total expenditure in excess of five percent (5%) of the budgeted gross expenses of tte Association for that fiscal year, the written consent or vote of a majority of the Owners (other than the Declarant) In the Project as to the maximum total cost therefor shall first be obtained, and provided that no Unit shall be altered or damaged by any such demolition or construction without the consent of the Owner thereof. The Association shall lovy a special assessment on all Owners in the Project for the cost of such work. ARTICLE V COVENANT FOR MAINTENANCE ASSESSMENTS Section 5.0.1. Creation of the Lieu and Personal Obligation of Assessments. The Declarant, for each Unit of which it is the Owner, hereby covenants and agrees to pay, and each Owner by acceptance of a deed of a Unit, whether or not it shall be so expressed in any such deed, is deemed to 31 1590 covenant and agree to pay to the Association (Z) Regular Assessments, (2) Special Assessments and (3) Capital Improve- ment Assessments, as such Assessments may be fixed, established and collected from time to time as hereinafter provided. The Regular, Special and Capital Improvement Assessments, together with such interest thereon and costs of collection thereof, as hereinafter provided, shall he a charge on the land and shall be a continuing lien upon the Unit against which each such Assessment is made. Each such Assessment, together with such interest, costs and reasonable attorneys' fees, shall also be the persona.l obligation of the person who was the Owner of such Unit at the time v/hen the Assessment fell due and shall bind such Ovmer's heirs, administrators, successors and assigns. Section 5.02. Regular Assessments. (a) The amount of Regular Assessments for a fis- cal year of the Association shall be determined by the Board of Directors of the Association pursuant to this Declaration, the Articles and Bylaws after giving due consideration to the current maintenance costs and future needs, including the buildup of reserves for working capital and contingencies •(e.g., roofing, painting and resurfacing of parking area), of the Association. The Regular Assessments for a fiscal year of the Association shall be paid in monthly installments. 32 1591 (b) Without first receiving the approval of a majority of the votes entitled to be cast by the Class A Members and the approval of the Class B Member, the Board may increase the total annual Regular Assessments par assess- able square foot of Floor Space with respect to any upcoming fiscal year of the Association by an amount not in excess of the greater of (i) 25% over the amount of the total Regular Assessments (including all supplemental Regular Assessments) per assessable square foot of Floor Space levied with respect to the current fiscal year or (ii) the percentage increase in the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index of Urban Wage Earners and Clerical Workers, San Diego Area Inctex, All Items (1967=100) or any similar index substituted therefor (the "Index") for the eighth month of the current fiscal year of the Association over the Index for the same month of the previous fiscal year of the Association. (c) In the event that the Board shall determine that the estimate of the total Regular Assessments for tne fiscal year of the Association is, or will become, inade- quate to meet all Common Expenses for any reason, it shall immediately determine the approximate amount of such inade- quacy. The Board shall have the authority to levy at any time, by a majority vote of the Board, a supplemental Regu- lar Assessment reflecting a revision of the total charges to 33 159;3 be assessed against each Unit and the Owner thereof, which supplemental Assessment shall not exceed (i) 25% of the total annual Regular Assessments with respect to the current fiscal year of the Association, provided that such Regular Assessments have been previously approved pursuant to the provisions of paragraph (b) of this Section, or (ii) in the event that the current Regular Assessments have not been so approved, 25% of the total annual Regular Assessments (including all supple- mental Regular Assessments) with respect to the previous fiscal year of the Association. To the extent that any sup- plemental Regular Assessment, or the aggregate of any supple- mental Regular Assessments, with respect to any fiscal year of the Association exceeds the applicable foregoing limit, such excess shall require the prior approval of a majority of the votes entitled to be cast by the Class A Members and the prior approval of the Class B Member. Written notice of any change in the amount of Regular Assessments levied by the Association through the Board as provided in this paragraph shall be given to all members affected thereby not less than 30 days prior to the effective date of such change. (d) If the amount budgeted to meet Common Expenses for any period proves to be excessive in light of actual Common Expenses, the Board in its discretion may, by resolu- tion, reduce the amount of the Regular Assessments. 1593 Section 5.03. Special Assessments. Each Owner shall be liable to the Association by way of Special Assess- ment for any damage to the Common Area or to any Association property or to the Association which may be sustained by reason of the negligence or willful misconduct of said Owner or of his employees, agents, guests or invitees. In the case of joint Ownership of a Unit, the liability of such Owners shall be joint and several. The amount of the loss, and any expense incurred by the Association in repairing such damage, together with costs, and attorneys' fees, shall be a debt of the Owner causing the same, and the Board may specifically assess, by way of Special Assessment, said Owner for the amount thereof to the extent that any such damage shall not be covered by a policy of insurance. The Board may also levy special assessments for Owners who are specifi- cally found to be excessive users of the services or facilities furnished or provided by the Association, including, but not limited to, trash removal or parking facilities, or for any violation of the rules and regulations of the Association or this Declaration. Section 5.04. Capital Improvement Assessments. In addition to the Regular and Special Assessments, the Asso- ciation may levy in any calendar year, a Capital Improvement Assessment applicable to that year only, provided that any such Assessment shall have the approval by vote or written 35 i594 consent of Members entitled to exercise not less than two- thirds (2/3) of the voting power of the membership. Section 5.05. Rate of Assessment. Both Regular and Capital Improvement Assessments shall be based upon the air space comprising each Unit in relationship to the total air space comprising of all the Units, and may be collected on a monthly or other periodic basis. The percentage of Regular and Capital Improvement Assessments to be paid by the Owner of such Unit shall be set forth on the Condominium Plan. . - .' Section 5.06. Date of Commencement of Re^'-ar Assessments and Fixing Thereof. The Regular Assessments provided for herein shall commence as to all Units on the first day of the month following the conveyance of the first Unit from Declarant to an Owner. The Association may extend the commencement date of Regular Assessments to a time not later than twelve (12) months following the completion of all improvements and landscaping within the Common Area, if Declarant, by a written agreement with the Association, agrees to maintain the Common Area until such extended date. Section 5.07. Duties of the Board of Directors. The Board of Directors of the Association shall fix the amount of Regular Assessment againr-t each Unit for each year at least thirty (30) days in advance of such year and shall, at 36 1595 that time, prepare a roster of the Units within the Property and Regular Assessments applicable thereto which shall be kept in the Office of the Association and shall be open to inspection by any Owner during normal business hours. Written notice of the Regular Assessments, Capital Improvements Assessments, or any changes thereto, shall be sent to every Owner subject thereto at least fifteen (li>). days prior to each fiscal year of the Association, or in ,he case of changes, at least fifteen (15) days prior to the effective date of the change. ; •• Section 5.08. Certificate of Payment. The Asso- ciation shall, upon demand, furnish to any Owner liable for said Assessment, a certificate in writing signed by an offi- cer of the Association, setting forth whether the Assess- ments on a specified Unit have been paid and the amount of the delinquency, if any. A reasonable charge may be made by the Board for the issuance of these certificates. Such cer- tificates shall be conclusive evidence of payment of any Assessment therein stateu to have been paid. Section 5.09. Assessment of Units Owned by Declarant. Without exception, each Unit of which Declarant is the owner shall be subject to assessment in the same manner as any other Unit owned by any individual Owner. Section 5.10. N '.nuse and Abandonment. do Owner may waive or otherwise escape personal liability for the 37 1596 assessments provided for herein by nonuse of the Common Area or abandonment of his Unit. ARTICLE VI NONPAYMENT OF ASSESSMENTS Section 6.01. Delinquency. Any installment of any Assessment provided for in this Declaration which is not paid when due shall be delinquent. If any such installment is not paid within thirty (30) days after the delinquency date, a late charge of five percent (5%) of the delinquent amount, or Twenty Dollars ($20.00), whichever is greater, may be levied by the Board of Directors for each delinquent installment, and the delinquent installments shall bear inter- est from the date of delinquency until paid in full at the rate of eighteen percent (18%) per annum, or two percent (2%) in excess of the prime commercial rate at Bank of Amer- ica, N.T. & S.A., whichever is higher (but not greater than the maximum rate then permitted by law), and in addition to all legal and equitable rights or remedies, the Association may, at its option, declare all the installments of Assessments with respect to the Unit subject to delinquency for the current Association fiscal year immediately due and payable. The Association may bring an action at law against the Owner personally obligated to pay the same or, upon compliance with the notice provisions set forth in Section 6.02 hereof, 38 to foreclose the lien (provided for in Section 5,01 hereof) against the Unit, and there shall be added to the amount of such Assessment, interest thereon, the late charges, the costs of preparing and filing the complaint in such action and, in the event a judgment is obtained, such judgment shall include said interest, late charges and actual attorneys' fees, together with the costs of such action. Each Owner vests in the Association or its assigns, the right and power to bring all actions at law and/or to foreclose a lien against such Owner or o.ther Owners for .the collection of such delin- quent Assessments or installments thereof. Tn lieu of judi- cially foreclosing the lien, the Association, at its option, may foreclose such lien by proceeding under a power of sale as provided in Section 6.03, such a power of bale being given the Association as to each and every Unit for the purpose of collecting delinquent Assessments. Section 6.02 . Notice of Lien. No Action shall be brought to foreclose an Assessment lien or to proceed under the power of sale provided herein less than thirty (30) days after the date a notice of claim of lien is deposited in the United States mail, certified or registered, postage prepaid, to the Owner of said Unit, and a copy thereof is recorded by the Association in the office of the San Diego County Recorder. Said notice of claiw of lien must recite a good and sufficient 39 1598 legal description of any such Unit, the record Owner or reputed Owner thereof, the amount claimed (which may at the Association's option include.late charges, interest on the unpaid Assessment at the rate specified nerein, plus actual attorneys' fees and expenses of collection in connection with the debt secured by said lien), and the name and address of the Association. Said notice of claim of lien shall be signed by an authorized representative of the Association and, upon its recordation, shall create a lien against the Unit described therein. Section 6.03. Foreclosure Sale. Any such sale provided for above is to be conducted in accordance with the provisions of Sections 2924, 2924b, and 2924c of the Civil Code of the State 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 Association, through its duly authorized agents, shall have the power to bid on the Unit at foreclosure sale and to acquire and hold, lease, mortgage and convey the same. Section 6.04. curing of.Default. Upon the timely curing of any default for which a notice of claim of lien was filed by the Association, the officers of the Association are hereby authorized to file or record, as the case may be, an appropriate release ox such notice, upon payment by the 40 1599 defaulting Owner of a fee, to be determined by the Association, to cover the coste of preparing and filing or recording such release, together with the payment of such other costs, late charges, interest or fees as shall have been incurred. Section 6.05. Cumulative Remedies. The Assess- ment lien and the rights to foreclosure and sale thereunder shall be in addition to and not in substitution for all otuer rights and remedies which the Association and its assigns may have hereunder and by law, including a suit to recover a money judgment for unpaid Assessments, as above provided. Section 6.06. Subordination of Assessment Liens. If any Unit subject to a monetary lien created fay any pro- vision hereof shall be subject to the lien of any bona fide Deed of Trust for value: (1) the foreclosure of any lien created under this Declaration shall not operate to affect or impair the lien of such Deed of Trust; and (2) the fore- closure of the lien of such Deed of Trust or the acceptance of a deed in lieu of foreclosure of the Deed of Trust shall not operate to affect or impair the lien hereof, 'except that the lien hereof for said charges as shall have accrued up to the foreclosure or the acceptance of the deed in lieu of foreclosure shall be subordinate to the lien of the Deed of Trust with the foreclosure-purchaser or deed-in-lieu-grantee taking title free of the lien hereof for all said charges 41 1GOO that have accrued up to the time of the foreclosure or deed given in lieu of foreclosure, but subject to tha lien hereof for all said charges that shall accrue subsequent to the foreclosure or deed given in lieu of foreclosure. ARTICLE VII USE RESTRICTIONS The Units and the Common Area shall be occupied and used only as follows: Section 7.01. Unless otherwise specifically pro- hibited herein, any operation and use shall be permitted within the Units if it is a general use customarily found in industrial buildings in the surrounding vicinity, is performed entirely within the Unit and is permitted by applicable laws, regulations and ordinances of the the City of Carlsbad or other governmental agencies having jurisdiction, by that certain Declaration of Covenants and Restrictions recorded October 1, 1974 at File/Page No. 74-263897, Book 1974, Official Records of San Diego County, California, as amended, and by this Declaration; provided, however, that Declarant reserves the right, for a period of seven (7) years from recordation hereof or until all Units in the Project are sold, whichever shall first occur, to carry on normal sales activity on the Project, including the operation of models and a sales office, if any, and Declarant shall have, during the above period, the 1601 non-exclusive right to use the Common Area and/or the Units for such purposes. Section 7.02. Uses of the Common Area shall be subject to the provisions of this Declaration, and to the additional limitations determined by the Association. The Board of Directors shall have the right to approve the busi- ness uses in the Project, taking into account traffic and parking requirements of different uses, noise levels, com- patibility and harmony with existing uses and any other facts or circumsta-vces. Section 7.03. Mo noxious or offensive trade or activity shall be carried on within the Units or upon any part of the Project, nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to any prop- erty or Owner within the Project or which may be inconsistent with or detrimental to the operation of the Project, or which shall in any way increase the rate of insurance thereon. The prohibition of uses shall include, but is not limited to, each of the following: (a) No industrial use shall produce noise at a level greater than the standards set by the appropriate local, state or federal agency. (b) All equipment causing earth or floor vibrations shall be so mounted as to eliminate vibration hazard and to 1602 prevent unreasonable vibrations from extending to any other Unit in the Project. (c) No industrial use shall discharge into the atmosphere any odorous matter or air pollutants producing a hazard or nuisance to any other Unit in the Project. No process which by its nature is liksly to cause air pollution shall be permitted unless there is available a method approved by Declarant or the Association and all applicable governmental agencies for controlling the emission of pollutants, and such Controls are effectively implemented whenever required by Declarant or the Association, or any governmental agency. (d) No industrial use shall discharge onto any portion of the Property, nor discharge into any sewer system or storm drain system for the Project, any toxic or noxious material or other substance which would create a hazard to or otherwise endanger the health, safety or welfare of any Owner of a Unit in the Project or his employees, tenants or customers. (e) No Owner shall permit any unsightly condition to exist in or on any portion of his Unit or any other area of the Project subject to an easement for his exclusive use thfereof, which condition may be viewed from any other Unit or from any portion of the Common Area. 44 1603 Section 7.04. No part of the Project shall be used or caused to be used or allowed or authorized in any way, directly or indirectly, for any residential purposes. Section 7.05. Nothing shall be done or kept in any Unit and/or the Common Area, which will increase the rate of insurance on the Common Area without the approval of the Association. No Owner shall permit anything to be done or kept in his Unit, or the Common Area, which will result in tht cancellation of insurance on any Common Area or which would be in violation of any law. Section 7.06. No sign of any kind shall be dis- played on or from any Unit, or the Common Area, without the approval oi' the Association, except such signs as may be used by Declarant for a period of time not to exceed seven (7) years in connection with the development of the Project and sale of Units; and further except one (1) "for sale" or "for lease" sign (in form specified by the Association) by an Owner on his Unit. Section 7.07. NO animals of any kind shall be raised, bred or kept in any Unit or on the Common Area, for any purpose, including commercial purposes, except such ani- mals used for security purposes as may be approved by the Board of Directors. 45 1601 Section 7.08. Nothing shall be done in any Unit or in, on, or to any Common Area which would structurally change any building, except as is otherwise provided herein. Section 7.09. There shall be no alteration, con- struction, or removal of any building, fence, wall, sign or other structure in the Project (other than repairs or rebuild- ing provided for elsewhere in this Declaration) without the approval of the Architectural Control Committee, as set forth hereinbelow. No building, fence, wall or other structure shall be constructed upon any portion of any Common Area other than such buildings and structures as shall be construc- ted (a) by the Declarant (or a person to whom Declarant assigns its rights as developer), or (b) by the Association as pro- vided elsewhere in this Declaration. Section 7.10. Except as permitted by the Associa- tion, through the parking plan or any changes thereto, no structure of a temporary or permanent character, trailer, camper, boat or equipment, or materials, supplies, inventory or work in progress or any similar property shall be permit- ted to remain in the Common Area. There shall be no parking within the Common Area other than of passenger vehicles in the parking spaces; provided, however, that temporary park- ing shall be allowed. "Temporary parking" shall mean parking of delivery trucks, service vehicles and other commercial 46 160;> vehicles being used in supplying materials and making deliv- eries to the Association, the Owners, their guests, tenants, employees, and invitees and parking of vehicles belonging to or being used by Owners for loading or unloading purposes. Such temporary parking shall not unreasonably interfere with another Owner's use of his Unit. The Common Area is hereby made subject to all State laws and County and City ordinances pertaining to the control of vehicular traffic and parking, and the City of Carlsbad or other governmental agencies having jurisdiction through their, authorized agents are hereby given the authority to enter upon the Common Area and enforce such laws and ordinances in addition to the Association's right to enforce the Association Rules. Section 7.11. No materials, supplies, equipment or trucks shall be stored or parked in the Common Area, except for the most limited time possible while loading and unloading vans, trucks or other vehicles. In no event shall any Owner, tenant or employee impede any means of ingress to or egress from another Owner's Unit. Section 7.12. No Owner shall install or cause to be installed any television, radio or telecommunications antenna or other electronic receiving or broadcasting device, or any chimney, duct, flue or other similar apparatus on any portion of the exterior of any building in the Project without 47 160G prior consent of the Architectural Committee. In no event shall a device be visible from the front of the Project. Section 7.13. Lgase of Units. An Owner may lease all or part of his entire Unit, except as hereinbelow pro- vided. All lease agreements shall be in writing and ahall provide that the terms of the lease shall be subject in all respects to the provisions of this Declaration, that the tenant agrees to be bound by this Declaration and the Asso- ciation Rules and that any failure by the lessee to comply with the terms of.such documents shall constitute a default under the lease. No tenant, however, shall have the rights of an Owner as a Member of the Association, to vote or othe- wise, unless specifically assigned to such tenant in the lease agreement. Section 7.14. Party.,Walls. (a) Each wall which is built as a part of the original construction of the Project, any part of which is placed on the dividing line between the Units, shall consti- tute a party wall; and, to the extent not inconsistent with the provisions of this Section, each of the adjoining Unit Owners shall assume the burdens and be entitled to the bene- fits of the provisions of this Section, and the general rules of law regarding party walls, and liability for property damage due to negligence or willful acts or omissions shall apply thereto. 48 1607 3B Ie (b) The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners who make use \4of the wall in proportion to such use. Jr. addition to meet- ing the other requirements of this Declaration and of any building code or similar regulations or ordinances, any Owner proposing to modify, make additions to or rebuild any improve- ment on his Unit in any manner which requires the extension or other alteration of any party wall shall first obtain the written consent of the adjoining Owner, and the Architectural Committee. (c) If a party wall is destroyed or damaged by fire or other casualty, any Owner who has used such wall may restore it, and the other Owner shall contribute to the cost of restoration thereof in proportion to such owner's use without prejudice, however, to the right of any such Owner to call for a larger contribution from the other under any rule of law regarding liability for negligent or willful acts or omissions. (d) Adjoining Units shall be considered to adjoin and abut the wall of the contiguous Units to the side, above and below. Both Declarant and the Owners of contiguous Units shall have reciprocal easements appurtenant to each of said Units over said contiguous Unii-s for the purpose of accommo- dating any encroachment of any wall of any building. Declar- ant and the Owners of contiguous Units shall have reciprocal 49 1608 easements appurtenant to each of said Units over said contigu- ous Units for the purposes of accommodating any natural settl- ing of any structures located' on any of said Units. (e) In the event of any dispute arising concern- ing a party wall, or other provisions of this Section, the parties shall submit the dispute to arbitration in the same manner as provided for the Association. Section 7.15. Store-Front Glass. Each Owner is individually responsible for the maintenance, repair and replacement of all glass windows included in or attached to such Owner's Unit. If any such glass window is broken, ^ha Owner shall promptly replace the broken glass window with new undamaged glass. Section 7.16. Roof Structures. No equipment, device or other structure shall be placed upon or affixed or attached to the roof of the Building except in compliance with Policy No. 80-6 of the Building Department of the City of Carlsbad. ARTICLE VIII ARCHITECTURAL CONTROL Section 8.01. Architectural Approval. No build- ing, fence, wall, sign or other structure shall be commenced, erected, installed, maintained or removed on or from the Property (including the common Area), nor shall any exterior 50 1609 addition to or change or alteration therein (including paint ing and any change to the window coverings originally installed in each Unit) be made until the plans and specifications showing the nature, kind, shape, height, materials and loca- tion of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Architectural Committee provided for in Section 8.02 hereof. Declarant, its successors or assigns, shall not, however, be required to comply with the provisions of this Section 8.01. In the event the Architectural Committee, or its designated representatives, fails to approve or disapprove such design and location within thirty (30) days after said plan and specifications have been submitted to it, said plans and specifications ohall be deemed approved and this Article will be deemed to hava been fully complied with. All improve- ment work approved by the Architectural Committee shall be diligently completed. Section 8.02. Appointment of Architectural Committee. Declarant shall initially appoint the Architectural Committee, consisting of not less than three (3) Members, and shall have the right to appoint, remove and replace all members of the Architectural Committee until all of the Units in the Property have been sold or leased by Declarant. From and 51 after such time or event, as the case may be, the Architectural Committee shall be appointed by the Board of Directors of the Association and shall be composed of three (3) or more representatives who need not be Members. Section 8.03. No Liability. Neither Declarant, the Association, nor the Architectural Committee, or the members or any delegate thereof pursuant to Section 8.07 hereof snail be liable for damages to anyone submitting plans or specifications to them for approval, or to any Owner affected by these restrictions by-reason of mistake in judg- ment, negligence, or nonfeasance arising out of or in connec- tion with the approval, disapproval or failure to approve or disapprove any such plans or specifications. Every Owner and every person who submits plans or specifications agrees that he will not bring any action or suit against Declarant, the Association, the Architectural Committee, or any of the members thereof to recover any such damages. Section 8.04. Notice of Noncompliance or Noncom- pletion. Notwithstanding anything to the contrary contained herein, after the expiration of the later of: (a) one (1) year from the date of issuance of a building permit by muni- cipal or other governmental authority for any such improvements or, (b) one (1) year from the date of commencement of construc- tion of such improvements within the Property, eaid improvements 52 1611 shall, in favor of purchasers and encumbrancers in good faith and for value, be deemed to be in compliance with all provi- sions of this Article VIII, unless notice of such noncompliance and noncompletion, executed by the Architectural committee or its designated representatives, shall appear of record in the office of the County Recorder of San Diego County, Cali- fornia, or unless legal proceedings shall have been instituted to enforce compliance or completion. Section 8.05. Rules and Regulations. The Archi- tectural Committee may frore time to time, in its sole dis- cretion, adopt, amend and repeal "rules and regulations int-^- preting and implementing the provisions hereof. Section 8.06. Variances. Where circumstances, such as topography, location of property lines, location of trees, or other matters require, the Architectural Committee, -by the vote or written consent of a majority of the members thereof, may allow reasonable variances as to any of the covenants, conditions or restrictions contained in this Dec- laration under the jurisdiction of such Committee, on such terms and conditions as it shall require; provided, however, that all such variances shall be in keeping with the rules and regulations of the Association, the laws and ordinances of the city of Carlsbad, the County of San Diego, and all other applicable governmental laws or regulations. 53 1612 Section 6.07. Appointment and Designation. The Architectural Coronvitttte »ay from time to time, by the vote or written consent of a majority of its members, delegate any of its rights or responsibilities hereunuer to one pr more duly licensed architects or other qualified persons who shall have full authority to act on behaif of said Architec- tural Committee in all matters delegated. Section 8.08. Review Fee and Address. Any plans and specifications shall be submitted in writing for approval together w^th a reasonable processing fee. The address of the Architectural Committee shall be the principal place of business of the Association or such other place as the Archi- tectural Committee may from time to time designate in writing to the Board of Directors. Such address shall be the place for the submission of any plans and specifications and the place where the current rules and regulations, if any, of the Architectural committee shall be kept. Section 8.09. Inspection. Any member or agent of the Architectural Committee may, from time to time, at any reasonable hour or hours, and upon reasonable notice, enter and inspect any property subject to the jurisdiction of said Architectural Committee as to its improvement or maintenance in compliance with the provisions hereof. 1613 Section 8.10. General Provisions. The members of the Architectural Committee shall not be entitled to any compensation for services performed hereunder but may be reimbursed for expenses reasonably incurred in connection with their duties hereunder. Section 8.11. Compliance with Governmental Laws. Declarant, its successors and assigns, and all future Owners of any Unit, and their successors and assigns by their accept- ance of their respective deeds, and the Association each agrae to be, and they hereby-are, bound by and subject to all laws and ordinances of the City of Carlsbad and all other applicable governmental laws or regulations. No building or other structure or addition or change or alteration thereof shall be commenced, constructed, erected, placed, altered, maintained or permitted to remain on any of the real property within the Property, including the Common Area, which is in violation of any of the laws or ordinances of the City of Carlsbad or any other applicable governmental laws or regula- tions . Section 8.12. Installation, Repair and Mainte- nance Duties of Owners. Subject to the duty of the Associa- tion to provide for maintenance of the Common Areas, each Owner shall construct, maintain, repair, replace, finish and restore or cause to be so maintained, repaired, replaced, 55 1614 finished and restored, at his sole cost and expense, the improvements on his Unit in a clean, sanitary and attractive condition, subject to the control and approval of the Archi- tectural Committee. It shall further be tha duty of each Owner to pay when due all charges for all utility services which are separately metered to his Unit and the improve- ments thereon, unless the Association is paying for such services. ARTICLE IX BENEFICIARY PROTECTION Section 9.01. Notwithstanding any other provisions in this Declaration to the contrary, in order to induce insti- tutional and other lenders and investors to participate in the financing of the sale of Units in the Project, the follow- ing provisions are addsd hereto (and to the extent these added provisions conflict with any other provisions in this Declaration, these added provisions shall control): (a) No breach of the covenants, conditions or restrictions herein contained, nor the enforcement of any lien provisions herein, shall defeat or render invalid the lien of any Deed of Trust made in good faith and for value, provided that all of said covenants, conditions and restric- tions shall be binding upon and effective against any Owner whose title is derived through foreclosure or trustee's sale, or otherwise. 56 (b) Each institutional holder of a First Deed of Trust encumbering any Unit is entitled upon request to timely written notification from the Association of any default by the Owner of such Unit in the performance of such Owner's obligations under this Declaration, the Articles or the Bylaws which is not cured within sixty (60) days. (c) Each institutional holder of a First Deed of Trust encumbering any Unit which obtains title to such Unit (a) oursuant to remedies provided in such Deed of Trust or (b) by accepting a deed (or assignment) in lieu of foreclo- sure in the event of default .by a Trustor, shall be exempt from the "right of first refusal" contained in A*..icA.e XII of the Declaration. Further, any such "right of first refusal" shall not impair the rights of a First Beneficiary to enter into a subsequent sale or lease of a Unit so acquired by the Beneficiary. (d) Each holder of a First Deed of Trust or third party foreclosure purchaser which obtains title to a Unit pursuant to the remedies provided in the Deed of Trust or to the foreclosure of a Deed of Trust, shall take the. Unit free of any claim for unpaid dues, assessments or charges against che mortgaged Unit which accrue prior to the time such holder or purchaser obtains title to such Unit (except for claims for a share of such assessments or charges resulting from a 57 1616 reallocation of such dues, assessments or charges to all Units, including the mortgaged Unit). The assessment lien provided for herein shall be subordinate to the lien of any First Deed of Trust now or hereafter placed upon any Unit subject to assessment; provided, however, that such subordination shall apply only to assessments which have become due and payable prior to a sale or transfer of a Unit pursuant to a decree of foreclosure or trustee's sale. Such sale or transfer shall not release such Unit from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent assessment. (e) Unless at least two-thirds (2/3) of the first Beneficiaries (based upon one vote for each First Deed of Trust owned) or Owners (other than the Declarant) of Units have given their prior written approval, the Association ^shall not be entitled to: (i) by act or omission, seek to abandon or terminate the Project, except as otherwise provided herein in the event of substantial destruction by fire or other casualty or in the event of a taking by condemnation or emi- ent domain; (ii) change the pro rata interest or obli- gations of any Unit for the purpose of levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards; 58 (iii) partition or subdivide any Unit, except as provided in the Article X; (iv) by act or omission, seeX to abandon, subdivide, encumber, sell or transfer the Common Area or partition the Common Area except as provided for herein. The granting of easements for public utilities or for other public purposes consistent with the intended uses of the Common Area by the Project shall not be deemed a transfer within the meaning of this clause: (v) use hazard insurance proceeds for losses to any of the Project (whether to Units or to Common Area) for other than repair, replacement or reconstruction, except as otherwise provided by applicable law; (vi) effectuate any decision of the Association to terminate professional management and assume self manage- ment of the Project. (f) Each First Beneficiary shall have the right to examine the books and records of the Association. (g) The Assessments shall include an adequate reserve fund for maintenance, repairs and replacement of the Common Area and those portions thereof that must be replaced on a periodic basis, and shall be payable in Regular Assess- ments rather than by Special or Capital Improvement Assess- ments . 59 1618 (h) AH taxes, assessments and charges which may become liens prior to a First Deed of Trust under local law shall relate only to individual Units, and not to the Project as a whole. (i) No provision in the Articles, the Bylaws, or in this Declaration, shall be interpreted to entitle the Owner of a Unit or any other party to priority over any First Bene- ficiary with respect to the distribution to such Owner of any insurance proceeds or condemnation awards for losses to or a taking of Units and/or .Common Areas. (j) Any agreement for professional management of the Project, or any contract providing for services to be provided by the Declarant, shall provide for termination by either party without cause or payment of a termination fee upon thirty (30) days written notice, and that the terms of any such contract shall not exceed one (1) year, renewable by agreement of the parties for successive one (1) year periods. (k) The Association shall, upon the request of any institutional holder of a First Deed of Trust on a Unit, (i) give written notice of all meetings of the Association to such institutional holder and permit the institutional holder to designate a representative to attend all such meet- ings, and (ii) transmit to such institutional holder an annual 60 1619 financial statement of the Association within ninety (90) days following the end of any fiscal year of the Association. Section 9.02, No breach of any covenant contained herein shall cause any forfeiture of title or reversion or bestow any right of re-entry whatsoever, but in the event that any one or more of these covenants shall be violated, the Declarant, its successors and assigns, or the Association, or any Owner of a Unit in the Project, may commence a legal action in any court of competent jurisdiction to enjoin or abate said violation, and/or to recover damages; provided, that any such violation shall not defeat or render invalid the lien of any Deed of Trust made in good faith and for value as to said Unit. Said covenants shall be binding upon and effective against any Owner of said Unit, whose title thereto is acguired by foreclosure, trustee's sale or otherwise. ARTICLE X PARTITION AND CHANGE IN UNITS Section 10.01. Except as otherwise provided in this Section, the Common Area shall remain undivided, and there shall be no judicial partitions thereof. Nothing herein shall be deemed to prevent partition of a co-tenancy in a Unit. Section 10.02. The Owner of a Unit may maintain a partition action as to the entire Project as if the Owners of all the Unics were tenants in common in the Project in the same proportion as their interests in the Common Area, and a court of competent jurisdiction shall order partition under this Article only by sale of the entire Property, if and only if one of the following circumstances should occur: (a) More than two (2) years before the filing of the action, the Project was damaged or destroyed so that a material part' was rendered unfit for its prior use, and the Project has not been rebuilt or repaired substantially to its state prior to the damage or destruction. (b) One-half (1/2) or more of the Project is des- troyed or substantially damaged and at least two-thirds (2/3) of the First Beneficiaries (based upon the respective Owner's voting rights for each First Deed of Trust owned) or Owners (other than the Declarant) oppose repair or restoration of the Project. (c) The Project has been in existence more than fifty (50) years, is obsolete and uneconomical, and at least two-thirds (2/3) of the First Beneficiaries (based upon the respective Owner's voting rights for each First Deed of Trust owned) or Owners (other than the Declarant) oppose repair or restoration of the Project. 62 1621 Section 10.03. Declarant, for itself and on behalf of each and every present and subsequent Owner of one or more Units within the Project, hereby appoints the Associa- tion as its and their attorney-in-fact to sell the entire Project for the benefit of all of the Owners thereof upon partition of the Project, which power shall: (i) be binding upon all of the Owners, whether they assume the obligations of these restrictions or not; (ii) be exercisable by a vote of at least seventy-five percent (75%) of the voting power of the Board of Directors; and' (iii) be exercisable only after recordation of the certificate by the Board of Direc- tors that said power is properly exercisable h"-Bunder, which certificate shall be conclusive evidence thereof in favor of any person relying thereon in good faith. Section 10.04. No Owner may expand or contract his Unit by sale or otherwise except as provided herein, and no Owner may sell or otherwise dispose of more than fifty percent (50%) of the Floor Space of his Unit unless he sells or disposes of the entire Unit. In no event shall there be created a new Unit within the Project; there shall remain at all times twenty-two (22) Units in the Project. Any sale of a portion of an Owner's Unit, as provided for herein, must be to an adjacent and adjoining Owner in the Project. Plans and specifications for any expansion or contraction of the 63 1622 Units shall be submitted to the Architectural Committee for review and approval, and said Committee shall determine that such expansion/contraction will not adversely affect any other Owner in the Project. Upon such a sale, the number of votes, the Assessments and the assigned parking spaces shall increase or decrease accordingly as the Committee shall deter- mine, and the new configuration of the Units shall be subject to all terms and conditions of the Articles, the Bylaws and this Declaration. ARTICLE XI DAMAGE OR LOSS TO IMPROVEMENTS Section 11.01. Rastoration of Common Areas. Except as otherwise provided in this Declaration, in the event of any destruction of any portion of the Common Area and any other improvements insured by the Association, it shall be the duty of the Association to restore and repair the same to its former condition, as promptly as practical. The pro- ceeds of any insurance maintained pursuant to this Declaration shall be used for such purpose, unless otherwise provided herein. The Board of Directors shall be authorized to have prepared the necessary documents to effect such reconstruction as promptly as practical. The Common Area and all other improvements shall be reconstructed or rebuilt substantially in accordance wi^h the original construction plans if they 64 are available, with such changes as are recommended by the Architectural Committee, subject to the provisions of Arti- cle VIII. If the amount available from the proceeds of such insurance policies for such restoration anu repair shall bi less than the estimated cost of restoration and repair, a Capital Improvement Assessment shall be levied by the Board of Directors upon the Owners and their Units in order to provide the necessary funds for such reconstruction over and above the amount of any insurance proceeds available for such purpose. , Capital Improvement Assessments shall be borne by the Owners in the same proportions as Regular Assessments. Section 11.02. Restoration of Units. In the event of the damage or destruction of any portion of the Project which is not owned by the Association, then it shall be the duty of the Owner thereof, as soon as may be practical, to repair and replace his Unit, or such portion thereof as will render such damage or destruction indiscernible from the exterior. Any. reconstruction, replacement or repair required by this section shall be in accordance with the original plans and specifications of the Project or plans and specifi- cations approved by the Architectural Committee and any Bene- ficiary of a deed of trust encumbering the Unit. Section 11.03. Condemnation. (a) In the event of a taking or partial taking of any Unit by condemnation proceedings, the Owner of such Unit 65 1624 together with Ms Beneficiaries, shall have exclusive rights to prosecute the proceedings for the respective taking awards. (b) In the event of a taking or partial taking of all or part of the Common Area by condemnation proceedings, Declarant, so long as any Class B membership exists, and thereafter the Association, shall have exclusive rights to prosecute the proceedings for the respective taking awards and shall be entitled to retain the proceeds of any such award. ARTICLE XII RIGHT OF FIR5T REFUSAL Section 12.0.1. To preserve the value of the Project, the Association shall have the right to purchase any Unit on the same terms and conditions as may be contained in any bona fide offer that any Owner thereof may receive for the purchase thereof or any offer or counter-offer that such Owner may make for the sale thereof at any time of times. Section 12.02. The Association ohall huve thirty (30) days following actual receipt by it of notice ("Notice") from any Owner of any such offer or counter-offer to exorcise its right to purchase said Unit. The Notice ehnll opecify the Unit affected, the terms and conditionii contained in such offer or counter-offer and the namou and tiddreoBen of the .offeree and offerer. The Association may exorcise said 1625 right after a vote of two-thirds (2/3) of the membership entitled to vote to do so, by a written notice delivered to said Owner or mailed to said Owner's address by certified or registered mail, postage prepaid, within such thirty (30) day period agreeing to purchase said Unit upon the same or more favorable terms and conditions. Should the Association fail within said period so to exercise its right, then the Owner of said Unit shall have the right to sell such Unit to any person, but only upon terms and conditions no less favor- able to tne purchaser than those set forth in the Notice. Section 12.03. This-right of first refusal shall be exercisable only for the purpose of maintaining, stabiliz- ing, preserving or protecting the value of the Units and the Project. In no event shall this right be exercisable for the purpose of discriminating against any person because of such person's race, color, creed, religion, sex or national ancestry or origin. ARTICLE XIII GENERAL PROVISIONS Section 13 .0.1. Enforcement. (a) The Association and any Owner, including Dec- larant, shall have the right to enforce by proceedings at law or in equity all covenants, conditions, restrictions, easements, reservations, liens and charges now or hereafter 67 1620 imposed by this Declaration, as amended and supplemented, the Articles and Bylaws, including without limitation the right to prosecute a proceeding at law or in equity against the person or persons who have violated or are attempting to violate any of these covenants, conditions, restrictions, easements, reservations, liens or charges to enjoin or pre- vent them from doing so, to cause said violation to be remedied or to recover damages for said violation. (b) Should any Owner fail to comply with any of the provisions of this Declaration and should any such failure of an Owner continue for a period of thirty (30) days follow- ing written notice of such failure from the Association to the Owner (unless different time periods are therein stated), the Association shall have the right, but not the duty, to correct any such noncompliance by an Owner, and the cost thereof shall be borne by such Owner; provided, however, that if such costs are not paid to the Association within thirty (30) days after the Association has furnished a state- ment therefor, the Association shall have the right, but not the duty, to levy a Special Assessment against such Owner to cover such costs of maintenance and repair or correction, of such noncompliance. No one or more failures or refusals by the Association to accomplish such compliance which the Owner shall have failed to perform shall be deemed a waiver of the right in the Association to perform such work at a later time as to the same or different work or compliance. 68 1627 (c) "The result of every action or omission whereby any covenant, condition, restriction, easement, reservation, lien or charge herein contained is violated in whole or in part is hereby declared to be and to constitute a nuisance, and every remedy allowed by law or equity against an Owner, either public or private, shall be applicable against every such result and may be exercised by the Association or any Owner, including Declarant. (d) In any legal or equitable proceeding (includ- ing arbitration) for the enforcement or to restrain the vio- lation of these covenants, conditions, restrictions, easements, reservations, liens or charges or any provisions hereof *he laws ox the State of California shall be applicable and the losing party or parties shall pay the attorneys' fees of the prevailing party or parties as additional damages. All remedies provided herein or at law or in equity shall be cumulative and not exclusive. (e) Either party to a dispute may elect to have any dispute not involving interim equitable relief submitted to arbitration by giving written notice thereof at any time, unless a civil action or foreclosure proceeding is then pend- ing. If a valid notice of arbitration is given, then within thirty (30) days of such notice, each party shall select one arbitrator, who will in turn select a third arbitrator in 1628 the event they do not agree on a decision. Except as provided above, the arbitration shall be conducted in accordance with the rules of the American Arbitration Association. (f) Failure by the Declarant, the Association or by an Owner to enforce any covenant, condition, restriction, easement, reservation, lien or charge herein contained shall in no event be deemed a waiver of the right to do so there- after. Nothing herein contained shall be deemed to require Declarant to enforce any covenant, condition, restriction, easement, reservation, lien, charge or provision hereof. Section 13.02. Severability. Invalidation of any one of these covenants, conditions or restrictions by judgment or court order shall in no way affect any other provisions which shall rsmain in full force- and effect. Section 13.03. Term. The covenants, conditions and restrictions of this Declaration shall run with and bind the Units arid shall inure to the benefit of and be enforce- able by the Association or the Owner of any Unit subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of fifty-five (55) years from the date this Declaration is recorded, and shall thereafter remain in effect for successive ten (10) year periods unless terminated in writing, signed by a majority of the Owners (in number and in Floor Space) at least two (2) years before the expiration date. 70 Section 13.04. Construction. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development of a commercial project, on the Property. The article and section headings have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction. Section 13.05. Amendments. This Declaration of Covenants, conditions and Restrictions may be amended only by an instrument in writing -signed by not less than seventy- five percent (75%) of the voting power of the membership of the Association, and in conformance with all applicable laws, ordinances and regulations; provided, however, that this Declaration may be amended by Declarant's independent action at any time so long as Declarant owns any Unit in the Project, and such amendment does not cause impairment of the use of the Property. Such amendment may include but is not limited to such normal and necessary purposes in the ordinary course of business as installation of cable or other communications lines, utilities, rights of way, and any other purpose which in Declarant's sole judgment is determined to benefit the Property or Project. In the event a Unit is owned by more than one Owner, .any one of the Co-Owners may sign such instru- ment in writing on behalf of all Co-Owners upon presentation 71 1630 of a power-of-attorney or other satisfactory evidence of authorization. Any amendment must be properly recorded in the Office of the San Diego County Recorder. In addition, any amendment relating to architectural standards, use of the Property or signs shall require the written consent of the City of Carlsbad. Section 13.06. Singular Includes Plural. Whenever the context of this Declaration requires same, the singular shall include the plural and the masculine shall include the feminine. Section 13.07. Nuisance. The results of every act or omission, whereby any provision, condition, restriction, covenant, casement or reservation contained in this Declara- tion is violated in whole or part, is hereby declared to be and constitutes a nuisance, and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result and may be exercised by the Architectural committee, the Association or any Owner. Each remedy shall be deemed cumulative and not exclusive. Section 13.08. Mergers and Consolidations. Upon a merger or consolidation of the Association with another association, its properties, rights and obligations may be transferred to the surviving or consolidated association or, alternatively, the properties, rights and obligations of 72 1631 another association may be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated associa- tion may administer the covenants, conditions and restrictions established by this Declaration, together with the covenants, conditions and restrictions established upon any other prop- erty, as one general plan and scheme. Section 13.09. Applicability of Governmental Regulations. The covenants, conditions and restrictions contained herein are separate, and distinct from any zoning, building or other law, ordinance, rule or regulation of the City of Carlsbad, the County of San Diego, or any governmental authority having jxirisdiction over the Property, which law, ordinance, rule or regulation now or in the future may contain different requirements from or in addition to those contained herein or which may prohibit uses permitted herein or permit uses prohibited herein. In the event of any conflict between the provisions hereof and the provisions of any such law, ordi- nance, rule or regulation, the Owner must first comply with these covenants, conditions and restrictions unless such compliance would result in a violation of such law,.ordi- nance, rule or regulation, in which case, upon a finding that compliance herewith would result in such violation, the 73 163.2 Architectural Committee shall waive any such covenant, condi- tion or restrictions to the extent the results in such viola- tion, and in connection therewith, the Architectural Committee may impose such additional covenants, conditions and restric- tions as may be necessary to carry out the intent of this Declaration. IN WITNESS WHEREOF, Declarant has executed this Instrument the day and year first hereinabove written. CARLSBAD INDUSTRIAL ASSOCIATES, LTD., a California limited partnership By Gefteral Partner 74 1633 ACKNOWLEDGEMENT State of California ) ) ss. County of Los Angeles ) On this __Sth day of Man , 1982, before me, a notary public in and for said County and State, parson- ally appeared Richard i. Darling , known to me to be one of the partners of the partnership that executed the within instrument, and acknowledged to me that such partner- ship executed the same. OFFICIAL SEAL |> SHARON SF.ESE f NOTARY PUSLIC - CALIfORNIA j! LOS APGrUS COUNTY >•. My coram. .:rjire$ DEC 14, liSZ Notary Public 1634 SXBIBIf Lot 1 of CARLSBAD TRflCT NO. 81-38, in the City of Carlsbatf, County of San Diego, Stat' of California, according to ffap thereof No. 1044?, filed In the Office of the County Recorder of San Diego County August 3, 1982. EXCEPTING THEREFROM all oil, gas and mineral lights as contained in the deed dated January 22, 1958 from Caxlsbsd Properties, Co-Partnership to County of San Diego, a political Subdivision of the State of California, recorded t'sbxuary 17, 1958 as Document So. 24786 in Book 69S2, page 351 of Official Swords, which recites.- "Reserving unto the grantors herein, its heirs, executors, administrators, successors and assigns fot a period of fifty years from the date hereof all oil, gas and mineral rights in property herein described, without, however the light to drill, mine, explore and operate through the surface or the upper 100.00 feet of the subsurface of said property or otherwise in such manner so a* to interfere with the use or proposed use of the property by the grantee, its successors or assigns or in any manner as to endanger the safety of any airport or building or structure that may be constructed on said property or proposed to be constructed on said property.