HomeMy WebLinkAboutCT 81-45; Interamerican Development Company; Tentative Map (CT)84-2QS611
OFFICIAL KEMKOSOFSANOIF.GOCCUIirY.CA.l-AT THE REQUEST
SA."K» TITLE INSURANCE CO.I38UUN-I
I VFPA I I.'' '.f. II COUNT Y KJlCJKiiCR_]
RECORDING REQUESTED BY
AND WHEN RECORDED HAIL TO
Nossaman, Guthner, Knox & Elliott
445 South Figuecoa Street, 31st Floor
Los Angeles, California 90071
Attention: Fredric W. Kessler, E-jq.
DECLARATION OF COVENANTS
CONDITIONS AND RESTRICTIONS
Article No_.
I Definitions
II Restrictions
Approving Agent
The Association
Assessments and Remedies for
Nonpayment
Property Rights
Partition
Insurance
Damage, Destruction and Condemnation....
Rights of Mortgagees
Party Walls
Enforcement of Restrictions
Duration, Modification and Assignment...
Miscellaneous Provisions
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS is made as of this 29th day of Hay __, 1984 by
Palomar Tech Centre Partnership, a California limited
partnership, hereinafter called "Declarant", with reference
to the following facts:
A. Declarant is the owner of all that certain
real property (the "Property") situated in the City of
Carlsbad County of San Diego, State of California, more
particularly described as follows:
Parcels 1 through 12, inclusive, of
Parcel Hap No. 12561, recorded in the
official records of San Diego County,
California on February 10, 1983 as File
NO. 83-044477.
B. It is the intention of Declarant to develop
the Property as a garden-type planned industrial development
and to sell and convey interests in eleven industrial units
of approximately 6,000 square feet to 12,200 square feet on
Parcels 1 through 11, subject to certain uniform covenants,
conditions, restrictions, limitations, reservations, grants
of easement, rights, rights-of-way, liens, charges and
equitable servitudes, set forth in this Declaration and
hereby expressly declared, intended, established and agreed
(i) to be in furtherance of a plan for the orderly subdivi-
sion, sale, lease and use of the Property as a planned
industrial development, <ii) to inure to the benefit of and
enhance the value, desirability and attractiveness of the
Property and each and every part thereof, (iii) to be bind-
ing upon and pass with the Property and each and every part
2.
884
thereof, (iv) to inure to the benefit of the owners of each
and every part of the Property 'and their successors and
assigns, and (v) be binding upon the owners of each and
every part cf the Property and their successors and assigns.
NOW, THEREFORE, pursuant to the provisions o£
Section 1468 of the California Civil Code, Declarant hereby
declares that the Property and every part thereof shall be
owned, conveyed, Jiypothecatad or encumbered, leased, rented,
used, occupied, maintained, altered and improved subject to
and in accordance with the following limitations, covenants,
conditions, restrictions and easements, all of which are for
the purpose of enhancing and protecting the value and
attractiveness of the Property in accordance with the plan
for the subdivision of the Property and the development
thereof as a garden-type planned industrial development.
All the limitations, covenants, conditions, restrictions and
easements shall constitute covenants which shall run with
the land and shall be a charge upon and inure to the mutual
and separate benefit of the Property and each part thereof
and upon Declarant and its successors and assigns, and all
parties having or acquiring any right, title or interest in
or to any part o£ the Property.
ARTICLE I
DEFINITIONS
Each of the following words and phrases shall, in
this instrument, have the respective meanings shown below,
unless the context requires otherwise:
3.
885
Section 1. "Approving Agent" shall n«an and refer
to the individuals from time to time appointed by Declarant
pursuant to Article III herein.
Section 2. "Declarant" shall mean and refer to
Palomar Tech Centre Partnership, a California limited
partnership, its successors and assigns, if such successors
and assigns are expressly granted the rights and expressly
assume the duties of Declarant under this Declaration.
Section 3. "Declaration" shall mean and refer to
this instrument as the same may be amended pursuant to the
provisions hereof.
Section 4. "Property" shall mean and refer to the
real property described in paragraph A above of this
Declacat ion.
Section 5. "Lot" shall mean and refer to Parcels 1
through 11, inclusive as shown upon the parcel map described
in paragraph A above of this Declaration.
Section 6. "Common Area" shall mean and refer to
Parcel 12, as shown upon the subdivision map described in
paragraph A above of this Declaration.
Section 7. "Improvement(s)" shall mean and refer
to improvements of whatsoever nature on the Property,
including, but not limited to, buildings, outbuildings,
parking areas and striping, curbs, gutters, sidewalks,
paving, loading areas, utilities, fences, retaining walls,
landscaping, hedges, mass plantings, earthen berms, poles,
signs, exterior lights and lighting, and any structure of
any type or kind.
886
Section 8. "Owner" shall mean and refar to the
record owner, whether one or more persons or entities, of
fee simple title to any Lot including both contrdct sellers
and purchasers while such contract is in effect, but
excluding those having such interest in°rely as security for
the performance of an obligation.
Section 9, "Associati-n" shall mean and refer to
Palomar Tech Centre Owners Association, e California
nonprofit mutual benefit corporation, and its successors and
assigns.
Section_10. "Articles" shall mean the Articles of
Incorporation of the Association and any amendments to said
Articles.
Section_11. "Bylaws" shall mean the Bylaws of the
Association and any amendments to said Bylaws.
Section,12. "Board of Directors" or "Directors"
shall mean and refer to the Board of Directors of the
Association.
Section 13. "Member(s)" shall mean and refer to
those persons entitled to membership in the Association as
provided in this Declaration.
Section 14. "Prior Mortgage" shall mean any mort-
gage or deed of trust upon any Lot which has been made in
good faith and for value and recorded in the office of the
County Recorder of San Diego, California prior to the re-
cording of any notice of assessment referred to in Article V.
887
ARTICLE II
RESTRICTIONS
Section I. Use of Lots, Each Lot shall be used
only for manufacturing, processing, <**-orage, wholesale,
office, laboratory and research and development activities
or for such other uses as may ba permitted under the H-l-Q
zone in effect in the City of Carlsbad on the date hereof,
as amended•from time to time/'provided, however, that the
Association may prohibit uses which in its opinion unduly
burden traffic or parking capacity in the Common Area or
unreasonably interfere with uses of or access to any other
Lots. There shall not be permitted any junk or salvage
yard, any oil drilling, development, storage or refining
activities, quarrying or mining operations, or any other use
which will be offensive to the neighborhood by reason of
odor, fumes, dust, smoke, bright lights, noise, visibility
or pollution or will be hazardous by reason of danger of
fire, explosion or exposure to toxic substances or
radiation. No portion of the Improvements on any Lot shall
be used as either a temporary or permanent residence.
Section 2. Use of Common Area. The Common Area
shall be improved and used only for the following:
(a) Vehicular and pedestrian movement to, from and
within the Property, including ingress and egress of any
vehicle serving any Lot or the Common Area or docking,
loading or unloading at any Lot.
(b) Parking, subject to the limitations and
restrictions set forth in Section 9 of this Article II.
6.
888
(c/ Trash and refuse storage and collection,
subject to the limitations and restrictions set forth in
Seecion 12 of this Article II.
(d) Uses allowed and as limited by the rights and
easements granted by this Declaration.
(f) Utilities and utility rights and easements as
may be granted and conveyed by the Association pursuant to
Article IV, Section 5(a)(iv), subject to the limitations and
restrictions set forth in Section 8 of this Article II.
: (g) Landscaping and related improvements for the
beautification of the Property.
(h) Construction of such additional common-use
improvements and for such additional common-use purposes as
the Board of Directors and Approving Agent or its successor
may from time to time authorize; provided, however, that no
buildings shall be constructed within the Common Area unless
approved by the City of Carlsbad.
No use of the Common Area shall interfere with or
obstruct ingress and egress of vehicles to or from the load-
ing and working docks of any Improvement on any Lot, ingress
and egress of persons to or from any entrance or doorway to
the Improvement on any Lot, or the location of and access to
the structures and facilities for which an easement of
encroachment is provided by Article VI, section 2.
Section 3. Restrictions on Conduct of Business.
The permitted uses described in Sections 1 and 2 of this
Article II shall be conducted in compliance with the
following conditions:
7.
889
'a) Moise. No facility shall produce noise at
such levels as will be offensive to adjoining property or to
the neighborhood.
(b) Vibration. Equipment creating earth-shaking
vibrations shall be set back a sufficient distance from Lot
lii.es and shall be so mounted as to eliminate vibration,
hazard or nuisance beyond Lot lines.
(c) Toxic or Moxious Matter. No facility shall
discharge into the sewer system, a storm drain, the
atmosphere oc across the Lot lines, any toxic or noxious
matter in such concentration as to be detrimental to or
endanger the public health, safety or welfare or to cause
injury or damage to neighboring property or business.
(d) Odorous Matter. No facility shall emit
odorous matter in such quantity as to be readily detectable
at any point along or across Lot lines.
(e) Fire and Explosive Hazards. Storage, utiliza-
tion or manufacture of active burning materials shall be
housed within completely enclosed buildings of incombustible
construction. Such buildings shall be protected by an auto-
matic sprinkler system complying with National Fire Protec-
tion Association standards. Materials which produce flam-
mable or explosive.vapors or gases under ordinary weather
temperature shall not be permitted except where required for
emergency equipment or incidental to a principal operation
such as paint spraying. In such cases adequate protection
shall be provided in conformance with the Fire and Building
Codes of the City of Carlsbad.
a.
89 C
(f) Glare or Heat; Lighting. Any operation
producing intense glare or heat shall be performed within
enclosures so as not to create a public nuis>ance or hazard
along or across Lot lines. All lighting £or the Property or
Common Area shall he directed awa" from adjoining
residential areas.
(g) Air Pollution. No industrial facility or
process shall discharge into the air pollutants or
contaminates sufficient to create a public or private
nuisance or hazard beyond Lot lines, and no processes which
by their nature are likely to cause air pollution shall be
undertaken or permitted unless an adequate method of
controlling the emission of contaminates is applied.
(h) Radiation. No facility, operation or process
shall use, store or produce radioactive materials
detrimental or dangerous to public health, safety or welfare
unless all risks of such material's contact with the human
and natural environment cf the Property are entirely
K
eliminated.
Section 4. Submission of Plans and Specifica-
tions. Where any work or any part of the Property or any
Improvement requires the written approval of the Approving
Agent or its successor, the party proposing the work shall
(a) submit preliminary plans and specifications to the
Approving Agent or its successor for its preliminary
approval, and (b) after preliminary approval, submit a
complete set of final plans and specifications with
elevations of the Improvement and complete construction
details, including but not limited to materials and colors
9.
891
to be used on extecior surfaces and detailed landscaping
plans complete with irrigation system. No construction
shall be commenced prior to written eoproval by thfe
Approving Agen" or its successor of the final plans and
specifications.
section 5. storage, storage of any materials
beyond Lot lines shall be prohibited and shall comply with
all applicable zoning ordinances and regulations of the City
of Carlsbad and. are protected by screening, fencing or other
enclosure to a height not less than six (6) feet in a manner
and with materials specifically approved in writing by the
Approving Agent or its successor.
Section 6. Signs. No billboards or outdoor
advertising will be permitted. All signs and sign frames
shall be designed as an integral element of the Improvement
on any Lot, shall comply with applicable sign ordinances of
the City of Carlsbad and may not be installed or maintained
without the review and approval of the City of Carlsbad. A
sign program shall be submitted to, reviewed and approved by
the City o£ Carlsbad prior to installation of any signs.
Section 7. Landscaping. All landscaping of the
Common Area, shall be the responsibility of and controlled
by the Association. All landscaping shall be in accordance
with a detailed landscape and irrigation plan submitted to
and approved by the City of Carlsbad. All parking lot trees
shall be a minimum of 15 gallons in size. Mo landscaped
portion of the Common Area shall be changed to a different
use without the approval of a majority of each voting class
of Members and the written approval of the Approving Agent
10.
892
or its successor. All landscaped areas shall b» maintained
in a healthy and thriving condition, free from weeds, :-,rash
and debris.
Section 8. Utilities. All pip3s, conduits, lines,
wires, equipment or facilities for th" communication,
transmission or metering of electricity, gas, water,
telephone or other utilities connected, placed or permitted
to be placed in or ur-on the Property shall be placed,
located, maintained and concealed within buildings or
structures or within underground pipes, conduits, cables or
vaults.
Section 9. Parking, (a) Unless written approval
is otherwise obtained from the Association, the parking
spaces within the Property shall be used solely for parking
commercial vehicles, not exceeding twenty-five (25) feet in
length, which enter the Property for the purpose of
servicing a Lot or the Common Area, or for parking passenger
vehicles. Camper trucks and pick-up trucks not exceeding
three-quarter (3/4) ton may be parked in Common Area parking
spaces when used for every-day passenger transportation.
However, parking spaces marked for small or compact cars may
be used only by passenger vehicles not exceeding fifteen
(15) feet in length,
(b) The Association may designate parking spaces
for use by the handicapped and mark such spaces accord-
ingly. Parking spaces so designated shall be used only by
persons and vehicles permitted to do so under applicable
governmental rules and regulations.
11.
893
(n) No person shall conduct repairs or
restorations of any type o£ vehicle upon any portion of the
Common Area except minor repairs in an emergency situation,
such as changing a flat tire.
(d) Any vehicle parked in violation of this
Section 9 or any other provision of this Declaration may be
towed at the direction of the Association, at the vehicle
owner's expense.
Section 10. Building Exteriors. No Owner shall
cause or permit anything to be placed, affixed or maintained
on the outside walls or roof of the Improvement en his Lot,
except those things initially constructed or placed thereon,
without the prior written approval of the Approving Agent or
its successor. No change in the color of the paint on the
outside walls of such Improvement shall be made without the
prior written approval of the Approving Agent or its
successor. All roof appurtenances, including air
conditioners, shall be architecturally integrated and
shielded from view and the sounds buffered from adjacent
properties and streets to the satisfaction of the City of
Carlsbad.
Section 11. Leases. No Owner shall lease his Lot
for less than a mbnth-to-month term nor shall any Owner
lease less than the entire Lot together with all rights and
easements appurtenant thereto. All lease agreements shall
be in writing and shall include an express provision that
the agreement is subject in all respects to the provisions
of this Declaration, the Articles, Bylaws and rules and
regulations of the Association and that any failure by the
12.
894
lessee to comply with the teems of such documents shall be a
default under the lease agreement.
Section 12. Rubbish Disposal. Mo refuse, rubbish,
trasb, garbage or othe- waste material shall be kept or
permitted upon any portion of the Common Area except in the
specific areas established therefor pursuant to the original
plans and specifications, unless any ether area is approved
by the Approving Agent or its successor for such purpose,
and all such waste material shell- be kept in enclosed bins
or receptacles. All trash receptable areas shall be
enclosed by a 6 foot high masonry wall with gates pursuant
to the City of Carlsbad standards. Location of said
receptacles shall have been approved by the City of
Carlsbad.
Section 13. Normal Maintenance and Repair. (a)
At his own escpense, each Owner shall maintain his Lot and
all Improvements (other than landscaping) on his Lot or
easement of encroachment appurtenant to his Lot, including
without limitation interiors, exteriors, doors, windows,
signs, locks, pavement, loading docks, ramps, stoops, steps,
porticos, overhangs, trash enclosures and receptacles,
entryways and landscaping, in good, clean, attractive and
well-kept order, repair, and condition and in accordance
with the original plans and specifications for the Lot. No
Owner shall do or permit or suffer anything to be done in
such Cot or easement of encroachment which will or may have
a tendency to decrease the attractiveness, utility'or value
of the Property or the other Lots. Prior approvals by the
Approving Agent or its successor of such rfork of maintenance
13.
895
as required by Article III, Section 2(a)(i) shall first be
obtained.
(b) All direct and indirect expenses of
maintenance. repair or replacement incurred by the Approving
Agent or the Association in order to bring the Improvements
on any Lot or within any easement of encroachment into
compliance with the restrictions of this Article II, as
authorized by Article III, Section 2(b)(iii) and Article IV,
Section 5(b)(ii), shall be a jcint and several obligation of
the Owner (or holder) and occupant of the Lot and easement
of encroachment and shall be payable upon the demand of the
Approving Agent, its successor or the Association. Any
amount expended by the Association or the Approving Agent
and not paid upon demand shall be treated as an assessment
as described in Article V, Section 1, entitling the
Association to all the remedies for an unpaid assessment.
At the request of and for the benefit of the Approving
Agent, the Association shall faithfully and expeditiously
pursue the remedy of foreclosure provided by Article V,
Section 6 in order to collect unpaid assessments resulting
from expenditures by the Approving Agent. In addition, the
Approving Agent may pursue any other remedy provided by this
Declaration or by law.
Section 14. Compliance with Law and Regulations.
All Improvements constructed on the Property and the use of
the Property by each Owner and occupant thereof shall
strictly comply with and conform to all rules, regulations
and requirements of the Association and those of the
applicable governmental authorities.
14.
896
ARTICLE III
APPROVING AGENT
Section I. Establishment of Approving Aqeni:.
(a) There shall be established an Apprcr. ing Agent
consisting of three (3) persons which shall have such powers
and duties and exercise such authority as sat forth in
Section 2 of this Article III. The Approving Agent s'.iall
have such powers and duties and -exercise such authority from
the date it is first appointed until the earlier of the date
on which:
(i) Declarant no longer retains a fee simple
ownership interest in any portion of the Property;
(li) Declarant chooses to terminate the
Approving Agent by giving written notice of termination to
the Board of Directors.
The members of the Approving Agent shall be
appointed from time to time and may be removed at any time
by Declarant. The Board of Directors, or, in the event it
fails to act, a majority of the Members other than the
Declarant, may appoint members of the Approving Agent to
fill vacancies at any time left by Declarant, subject to
Declarant's paramount right to remove and appoint different
persons as members of the Approving Agent. Declarant shall
submit to the Board of Directors the names of those persons
Declarant has appointed to or removed from the Approving
Agent, and in the case of appointment the teem of office of
the person appointed, within five (5) days of such
appointment or removal. Failure to do so shall not
invalidate any action oc decision of the Approving Agent.
15.
897
(b) Within sixty (60) uuys from the date Declarant
no longer retains a fee simple ownership interest in any
part of the Property or Declarant gives the notice of
termination provided in paragraph (a) of this Section 1,
whichever occurs first, the Board of Directors shall hold a
meeting at which it shall appoint an Architectural Control
Committee consisting of not less than three (3) nor more
than five (5) persons. Upon appointment the Architectural
Control Committee shall be automatically vested with all the
powers and authority and shall automatically assume all the
duties of the Approving Agent granted or created by Section
2(a)(i), (ii), (iii) and (iv) of this Article III, and shall
have such additional powers, authority and duties, including
without limitation those set forth in Section 2(b) of this
Article III, as may be delegated to it by the Board of
Directors from time to time, subject, however, to the
ultimate direction and control of the Board of Directors and
such rules, regulations and limitations as the Board of
Directors may prescribe from time to time, including those
concerning the appointment and removal of Committee
members. The Board of Directors shall promptly notify each
Owner in writing of the action taken at the meeting.
(c) Upon the appointment of the Architectural
Control Committee, all rights and duties of the Approving
Agent not vesting in the Architectural Control Committee
shall automatically vest in the Board of Directors subject
to the Board's power of delegation.
16.
898
Section 2. Functions jf Approving Agent.
(a) Without liability foe failure to do so, the
Approving Agent shall have the sole and exclusive authority
and duty to do the following:
(i) Require, review and approve or disapprove
in writing plans and specifications, as described in Section
5 of Article II, for:
(A) All proposed additions,
construction, maintenance, repair, replacement,
alteration, renovation or restoration of or to the
exterior of any Improvement on the Property by any
person other than Declarant, except for routine
maintenance and repair.
(B) All proposed work in, on or to any
Improvement on the Property by any person other than
Declarant which is likely to require a variance from or
waiver of any restriction set forth in Article II.
(C) The landscaping and significant
change, modification or restoration of the landscaping
of the Common Area.
Such review and approval or disapproval shall be based on
compliance with the restrictions set forth in Article II and
landscaping and architectural conformity to the Improvements
on the Property and to similar garden-type industrial
centers.
(ii) Interpret and administer tha restrictions
set forth in Article II.
(iii) Hear requests for and grant, with or
without conditions, variances from or waivers of any
17.
899
restriction set £octh in Article II whenever in its opinJon
such variance or waiver will not have any significant
adverse effect on the Property or the rights of any othnr
Owner under this Declaration. The grant of any such
variance or waiver shall not constitute a waiver of the
right to enforce at any time any other restriction against
the grantee or any restriction against any other parson,
(iv) Upon request, issue a certificate of
completion and compliance as to any Improvement showing
compliance with any part or all of this Declaration, which
such certificate when duly acknowledged and recorded i:\ the
Office of the County Recorder of San Diego County shall be
conclusive evidence of the matters recited therein, shall
entitle any purchaser, encumbrancer for value or insurer of
title of any purchaser or lien of any encumbrancer for value
to conclusively presume the truth and correctness of all
matters recited therein and shall be binding on any and
every person, including the Association and any Owner,
having any rights under this Declaration.
(v) Adopt rules and regulations for its
organization, procedure and governance.
(vi) Take such other actions as are reasonably
necessary to perform its functions stated in this Section
2(a).
(b) Without liability for failure to do so, the
Approving Agent shall have the concurrent authority and
duty, together with that of the Association, to do the
following:
18.
(1) Enforce by whatever legal or equitable
means ace necessary the provisions of this Declaration, and
sue for and collect seasonable costs and attorneys' fees
relating to such enforcement, as more specifically set forth
in Article XII.
(ii) After reasonable notice to the
appropriate Owner or occupant, enter and inspect at any
reasonable time any portion of the Property for the purpose
of investigating compliance with, the provisions of this
Declaration, and/or reporting upon the condition of any
Improvements thereon and the question of such compliance.
Notice to the Association or the Owner or occupant of any
entry or inspection of any portion of the Common Area shall
not be required. This right of entry extends to the
Approving Agent and its employees, agents, representatives
and contractors. Neither the Approving Agent nor any such
person shall be deemed guilty of any manner of trespass for
such entry or inspection, and the Association and all
affected Owners and occupants shall be deemed to have
consented to such entry and inspection.
(iii) After ten (10) days prior written notice
to any occupant, or the Owner if there is no occupant, enter
upon any Lot which is maintained or is in a condition in
violation of any of the restrictions set forth in Article II
for the purpose of performing the required maintenance,
repair or replacement. This right of entry extends to the
Approving Agent and its employees, agents, representatives
and contractors. Neither the Approving Agent nor any such
person shall be deemed guilty of any manner of trespass for
19,
901
such entry and wo- '". of maintenance, repair or replacement,
and all affected Owners and occupants shall be deemed to
have consented thereto, In case 3f emergency, this right o£
entry shall be immediate.
(iv) Issue written notice to any Owner of a
finding of violation of any restriction set forth in Article
II, which shall describe in reasonable detail the location
and nature of the violation and which may order and
prescribe the immediate cure of such violation.
(v) Upon request, receive notice of and
appear and participate in all regular and special meetings
of the Board of Directors or of the Members, without voting
power.
(vi> Take such other actions as are reasonably
necessary to perform its functions stated in this Section
2(b).
ARTICLE IV
THE ASSOCIATION
Section 1. Formation and General Purposes. The
Association shall be organized as a nonprofit mutual benefit
corporation to own, hold, manage, operate, repair, preserve,
maintain and control use of the Common Area, to interpret,
administer arid enforce the provisions of this Declaration
and to exercise other powers, all as more specifically set
forth in this Declaration, the Articles and Bylaws, and the
rules and regulations adopted from time to time by the Board
of Directors.
20.
Section 2, Membership. Every Owner shall be a
Member of the Association. The transfer of title to any Lot
shall automatically transfer the membership appurtenant to
svch Lot to the transferee, without necessity of
documentation or other action, o£ any kind, by any person.
The Directors may require that any person acquiring a Lot
shall notify the Association in writing of such acquisition
so as to facilito accurate record-keeping of the m^nbership.
Section 3. Voting Classes. The Association shall
have two (2) classes of voting members:
Class A. Class A members shall be all Ownerd with
the exception of Declarant and shall be entitled to one (1)
vote for each Lot owned.
Class B. The Class B member shall be the Declarant
and shall be entitled to five (5) votes for each ^ot owned.
The Class B membership shall cease upon the conveyance by
the Declarant of one hundred (100%) percent of its fee
simple ownership interest in the Lots.
When more than one (1) person are Owners of a Lot,
all such persons shall be members. The vote for such Lot
shall be exercised in the manner provided in the Bylaws, or,
if not so provided, .as they among themselves determine, but
in no event shall more than one (1) vote be cast with
respect to any Lot.
Section 4, Cumulative Voting. Cumulative voting
is permitted for the election and removal of members of the
Board of Directors.
Section 5. Functions of Association.
(a) Except as otherwise provided in Section 2(a)
of Article III or in the Bylaws, the Association acting
21.
903
through its Board of Directors and officers shall have the
sole and exclusive authority and duty to do the following:
(i) Manage, operate, regulate and control the
Common Area or any portion thereof together with all
Improvements thereon, including 1andscaping, in accordance
with the terms of this Declaration and as more fully set
forth in the Articles and Bylaws.
(ii> In order to presarve and enhance the
utility and attractiveness of the. Property, regularly
maintain, repair, replace and restore in good, clean,
attractive, sanitary and well-kept order, repair and
condition the Common Area together with all Improvements
thereon.
(iii) Adopt, administer, enforce and amend
reasonable rules and take other action not inconsistent with
the provisions of this Declaration for the management,
operation, regulation and control of the use by Owners and
their agents, employees, representatives, lessees,
sublessees, guests, licensees and invitees of the Common
Area and the Improvements thereon, including without
licr.-tation, rules respecting automobile parking, commercial
or industrial traffic within the Property, docking, loading
and unloading, disposal of waste materials and other
activities, which if not so regulated might detract from the
appearance of the Property or offend, interfere with,
inconvenience or endanger other persons present on the
Property. Such rules may provide fines and penalties
against any Owner for such Owner's or such person's
violation thereof or of this Declaration according to a
22.
schedule adopte^ by the Board of Directors, and special
assessments against any Owner to cover the direct and
indirect expenses incurred by the Association in removing,
storing or disposing of property left on the Common Area by
the Owner or any such person in violation of the rules or
this Declaration. Such rules may be amended or repealed by
the vote of a majority of each class of Members.i
(iv) Provide the Common Area with water a;.d
t:
other utility services as required, including maintenance
thereof, and provide each Lot with water, gas, electric,
telephone and other necessary utilities to the Lot line,
including maintenance from any property line of each Lot
across the Common Area. To this end, the Association shall
have the authority and duty to grant and convey easements or
- rights in, on, over or under any portion of the Common Area
to any public agency, authority or utility company, for the
purpose of constructing, installing, operating, maintaining,
repairing, replacing and improving thereon, therein and
thereunder: (A) cables, wires, and conduits to transmit
electricity and provide telephone and other services and for
the- necessary attachments in connection therewith, and (B)
public and private sewers, storm water drains, land drains
and pipes, water, heating and gas lines or pipes and any and
all equipment in connection with the foregoing and other
installations as may hereafter be required or needed to
service the Property. The Association shall not be
responsible for maintaining sewer, water or other utility
lines or connections within any Lot or easement of
encroachment. The Association shall, however, provide for
23.
maintenance and operation of any private water r-»ins, fire
protection systems or components, including hydrants, a>-d
other appurtenances located in the Common Acea. To the
extent maintenance is required on any such items within any
Lot or easement of encroachment the co-t of such maintenance
shall be borne by the Owner of such property. All drainage
systems located in the Common Ar<ja shall be maintained by
the Association in perpetuity. In the evDnt a reclaimed
water system is .adopted by the City of Carlsbad and required
by the City with respect to the Property, the Association
shall be responsible for the use of reclaimed water and for
the maintenance and operation of such system within the
Property in accordance with city standards.
(v) After reasonable notice to the
appropriate Owner or occupant, enter upon any Lot for any
purpose reasonably related to the performance by the
Association or the Board of Directors of its
responsibilities under the terms of this Declaration. This
right of entry extends to the Association and its Board of
Directors and their employees, agents, representatives and
contractors. The Association, the Board of Directors and
any such persons shall not be deemed guilty of any manner of
trespass for such entry, and all affected owners and
occupants shall be deemed to have consented thereto. In
case of emergency, this right of entry shall be immediate.
(vi) Assess Members and enforce collection of
fees, assessments and other charges as more particularly set
forth in this Declaration, the Articles and Bylaws.
(vii) Acquire and maintain such insurance
coverage as is set forth in Article VIII.
24.
(viii) Arbitrate disputes among Owners regarding
responsibility for and allocation of the costs of
maintenance, repair or replacement of any Lot or Improvement
or party wall thereon. The decision of the Board of
Directors after such arbitration shall be binding and
conclusive.
(ix) Employ a manager, caretakers or other
persons and contract with independent contractors or
managing agents, to perform all or'any of the duties and
responsibilities imposed on the Association by this
Declaration, the Articles or the Bylaws; provided, however,
that any agreement for professional management of the
Property, or any other contract providing for services,
shall not exceed three (3) years and ?hall provide for
termination by either party without cause and without
payment of a termination fee upon no more than ninety (90)
days prior written notice.
(x) Provide for a maintenance contract for
the upkeep or the private pump station serving the Property
which may include contracting with the City of Carlsbad to
utilize its maintenance crew on a time and material basis.
(xi) Borrow money and incur indebtedness, with
the vote or written consent of a majority of the voting
power of each class of Members, for the purpose of improving
the Common Area of otherwise for the benefit of the
Association, and, cause to be executed and delivered
therefor, in the name of the Association, promissory notes,
bonds, debentures, deeds of trust, mortgages, pledges or
other evidences o£ debt or security; provided, however, that
25.
907
the rights of any mortgagee or lender shall be subordinate
to the rights of the Owners in and to the Common Area. This
Section 5(a)(x) merely gives the Association the pov.ar and
right to borrow money and shall not be considered to impose
a duty.
(xii) Dedicate oc transfer all or any part of
the Common Area to any public agency or authority for use
and maintenance as streets or sidewalks or for parking,
subject to the approval of not less than seventy-five
percent (75%) of the voting power of each class of Members
and such conditions as may be approved by the Board of
Directors.
(xiii) Pursuant to the Carlsbad City Council
Policy No. 30, attempt to prepare and implement a ride to
work and home plan and program for its and the Owners'
employees in cooperation with the North County Transit
District. The Association shall attempt to implement a work
shift program which will facilitate the success of the ride
to work. plan.
(xiv) All those matters set forth in
subsections (i) through (iv) of Section 2(a) of Article III,
provided, however, that such authority and duties shall not
be vested in and exercisable by the Association until the
Approving Agent is terminated.
(xv) Such other matters as are authorized by
the California Nonprofit Corporation Law, are set forth in
the Articles or Bylaws and are consistent with this
Declaration.
26.
908
(xvi) Take such other actions as are reasonably
necessary to perform its functions stated in this Section
5(a), or elsewhere in this Declaration.
(b) The Association acting through its Board of
Directors and officers shall have concurrent authority and
duty, so long as the Approving Agent exists, and sole and
exclusive authority and duty tnere^.fter, to do the
following:
(i) All those matters set forth in
subsections (i), (ii), (iii) and (iv) of Section 2(b) of
Article III, to the same extent and with the same
protections as therein provided to the Approving Agent.
(ii) Take such other actions as are reasonably
necessary to perform its functions stated in this Section
5(b).
Section 6. Liability of Directors. In discharging
its duties and responsibilities, the Board of Directors acts
on behalf of and as representative of the Association which
acts on behalf of and as representative of the Owners, and
no member of the Board of Directors shall be individually or
personally liable or obligated for performance or failure of
performance of such duties or responsibilities unless he
fails to act in good faith, in a manner he believes to be in
the best interests of the Association, or with such care,
including reasonable inquiry, as an ordinarily prudent
person in a like position would use under similar
circumstances.
27.
:l
ARTICLF_V
ASSESSMENTS AND REMEDIES FOR
NONPAYMENT OF ASSESSMENTS
Section 1. Fees and Assessments. The Dec 1 arant,
for each Lot owned, hereby covenants and agrees to pay, and
each Owner of any Lot by acceptance of a deed therefor,
whether or not it shall be so expressed in such deed, is
deemed to covenant and agrees to pay to the Association in
accordance with the Bylaws of the Association: (1) regular
fees, assessments and interest and penalties for late
payment thereof, and (2) special assessments for taxes,
capital improvements and other purposes as provided by this
Declaration, and interest and penalties for late payment
thereof. No Owner may waive or otherwise escape liability
for the fees, assessments, interest and penalties provided
for herein by nonuse of the Common Area or abandonment of
his Lot or any portion thereof,
Section 2, Rates and Collection. The Board of
Directors shall fix by resolution the amount of regular and
special fees and assessments against each Lot and shall
review the amount of regular assessments at least once
annually. Unless otherwise provided in this Declaration,
the fees and assessments (both regular and special, if any)
to be assessed against each Lot shall be at a uniform rate
for each Lot, based upon the ratio of the total area of each
Lot to the total area of all Lots subject to this Declara-
tion. Regular fees and assessments shall include an ade-
quate reserve fund for maintenance, repairs and replacemgnts
28,
910
of those elements, of the Common Area that must be replaced
on a periodic basis.
Section 3. Time of Pay.aent. Unless otherwise
provided by the Board of Directors, the regular fees and
assessments provided for herein shall commence as to all the
Lots on th& first day of the calendar month following the
first closing of the sale of a Lot to an Owner other than
Declarant, Both regular fees and assessments and specia1
assessments may be collected on a monthly basis or at less
frequent but regular intervals, as provided in the Bylaws or
by resolution of the Board of Directors. The Bylaws may
provide for prepayment of such assessments. Written notice
of the annual assessment shall be sent to every Owner within
ten (10) days after the amount thereof is established by the
Board of Directors.
Section 4. Late Charges and Interest. Any fee or
assessment not paid within fifteen (15) days after the date
due shall bear interest from the date due at the rates
provided for in the Bylaws or by resolution of the Board of
Directors, and any fee or assessment not paid within thirty
(30) days after the date due shall in addition bear a late
payment penalty for such thirty (30) day period and for each
succeeding thirty (30) day period during which the fee or
assessment remains unpaid at the rate provided for in the
Bylaws or by resolution of the Board of Directors.
Section 5. Lien. The amount of any assessment
together with any interest, penalties and costs (including
attorneys' fees) attributable thereto or incurred in the
collection thereof not paid within thirty (30) days from the
29.
date said assessments ace due, shall be and the same is
hereby declared and agreed to be a lien upon the Lot and
other interests in the Property of the Owner of the Lot and
shall continue to be such until fully paid, and shall also
be the personal and joint and several obligation of the
Owner of the Lot at the time the assessment fell due, and
such Owner's successors in title other than those who
acquire title under a Prior Mortgage, whether or not
expressly assumed or disavowed by-them. Such lien shall be
subject to the following conditions:
(a) If an Owner fails to pay his assessment within
said thirty (30) day period, the Association shall (i) mail
a demand for payment and a notice of default in the form
prescribed by California Civil Code Section 2924 or as
"otherwise prescribed by law to the delinquent Owner at the
street address of such Lot or such other place as said Owner
may designate in writing, and (ii) make the lien effective
against said Owner's Lot and other rights and interests in
and to the Property by recording in the Office of the County
Recorder of San Diego County, California, a notice of
assessment, executed by an authorized representative of the
Association setting forth the amount of such assessment and
other charges, the description of the Lot against which the
same has been assessed and the name of the record Owner and
the name of the contract purchaser thereof, if the
Association has notice of such contract purchaser. If the
Association has not received full payment of all such
delinquent assessments and charges attributable thereto
within ten (10) days after mailing said notice of default
30.
912
and filing said notice of assessment, the Association shall
record said notice of default in the Office of the County
Recorder of San Diego County, California, and may thereafter
enforce said lien as provided by law.
(b) Unless sooner satisfied and released, such
lien shall expire and be of no further force and effect if
an action to foreclose such lien is not commenced within two
years following the recordation of the notice of assessment;
provided, however, that said' period may be extended by the
Association for a period not to exceed one additional year
by recording, in the Office of the County Recorder of San
Diego County, California, a written extension thereof.
(c) Such lien shall be subject and subordinate to
the iien of any Prior Mortgage upon such Lot and other
rights and interests of such Owner in the Property.
Section 6. Legal Actions and Foreclosure Sale.
The Association, through its Board of Directors, its
attorney or any other person authorized by the Board of
Directors, is hereby vested with the right and power ti,
bring at its option any and all actions against Owners for
the collection of assessments which are not paid when due,
and to enforce assessment liens by any and all methods
available for the enforcement of contractual obligations or
liens including, without limitation, the right to bring
personal action against the Owner on such debt, the right to
foreclose such lien in any method provided by law for
foreclosure of a mortgage, and the right to sell the Owner's
interest in the Property at public sale. A sale of an
Owner's interest shall be conducted in accordance with the
31.
913
provisions of Sections 2924 et seg. of the Civil Code of
California (or any similar statutory provisions that may
hereafter exist) or in any other manner provided by law and
to that end a power of sale is hereby conferred upon the
Association. The Association, through its authorized
agents, shall have the power to bid on the Lot at
foreclosure sale in its own name and to acquire, hold,
lease, mortgage and convey the same for the benefit of all
the Owners. In the event judicial proceedings are
successfully pursued by the Association, all expenses thusly
incurred by the Association, including reasonable attorneys'
fees, shall be assessed to and paid by the defaulting Owner
as a special assessment.
Section 7. Voting and Other Rights. During any
period in which an Owner shall be in default in the payment
of any regular or special assessment levied by the
Association, the voting rights and other rights of such
Owner as a Member of the Association and the rights of all
persons claiming through or under such Owner may be
suspended by the Board until such assessment has been paid.
Such rights may also be suspended, after notice and hearing,
for a period not to exceed thirty (30) days, for any single
infraction of any rule or regulation established by the
Board governing the use of the Common Area or any single
infraction of any provision of this Declaration.
Section 8. Curing of Default. Upon the payment or
other satisfaction (prior to foreclosure or sale) of all
delinquent assessments, interest, penalties, costs
(including attorneys' fees) and charges attributable
32.
thereto, and a fee as determined by the Associati:>-v to cover
the costs of preparing and recording, the Association shall
promptly cause to be prepared and recorded a further notice
stating the satisfaction and the release of the lien of
assessment.
Section 9. Cumulative Remedies. All rights and
remedies granted to the Association under this Article V
shall be cumulative and the exercise of one or more eights
or remedies shall not constitute a waiver or election
preventing the use of other rights or remedies provided
herein or by law.
ARTICLE VI
PROPERTY RIGHTS
Section 1. Easement for Use and Enjoyment. The
Common Area and all Improvements thereon, therein or
thereunder shall be owned by the Association in fee simple
and shall be held for the use, enjoyment and benefit of the
Owners. Every Lot shall have an equal right and
nonexclusive easement of use and enjoyment appurtenant
thereto in, on and to the Common Area, which right and
easement shall be for the benefit of the Lots, the Owners
and each of them, and for their respective agents,
employees, representatives, lessees, sublessees, guests,
licensees and invitees for all the purposes and uses herein
set forth, including without limitation ingress, egress and
lateral and subjacent support. Said right and easement
shall be appurtenant to and pass with the title to every Lot
33.
915
irrespective of whether the deed or other instrument
evidencing such conveyance specifically describes therein
such rights, interests and easements as constituting part of
the property so conveyed. Said right and easement shall not
be partitioned, segregated or conveyed separately from the
Lot to which it is appurtenant except as expressly otherwise
provided herein, and shall be subject to the following:
(a) The right of the Association to charge
reasonable fees for the us<i of. any facility situated upon
the Common Area, provided that construction and placement of
such facility in the Common Area has been approved by the
City of Carlsbad.
(b) The right of the Association to dedicate oc
transfer all or any part of the Common Area.
(c) The right of the Association to promulgate
rules and regulations to ensure reasonable use of the Common
Area.
(e) All other easements, rights of use,
exceptions, limitations and restrictions provided by this
Declaration.
Section 2. Easements for Encroachment. There
shall be reciprocal appurtenant easements of encroachment
for unintentional misplacements or settling or shifting of
Improvements constructed, altered, rebuilt or repaired on
any Lot or the Common Area, as between each Lot and adjacent
portions of the Common Area or adjacent portions of another
Lot, as the case may be, to a distance of not more than four
(4) feet as measured from any point on the common boundary
bQtween such Lot and the Common Area, or to a distance of
34.
516
not more .than one (1) foot as measured from any point on the
common boundary between such Lot and the adjacent Lot, along
a line perpendicular to such boundary at such point. Thei.e
shall also be easements of encroachment for entry stairways
and porticos, building overhangs or protrusions, concrete
ramps, trash collection areas and utility panels appurtenant
to any Lot as originally constructed. There shall be ease-
ments for access to and maintenance of such encroachments.
However, in.no event shall an'easement of encroachment be
created in favor of an Owner or the Association if such
encroachment occurs due to intentional misconduct on the
part of such Owner or person holding under him or the
Association.
Section 3. Maintenance Rights. Each Owner shall
have a right to reasonable use of the Common Area for the
purpose of maintaining, repairing, restoring, renovating or
reconstructing the Improvements on the Lot he owns or on the
easements of encroachment to such Lot, including the right
to temporarily store building and construction materials in
the Common Area, provided, however, that such right shall be
subject to all rules and regulations of the Association and
shall not be exercised so as to create unreasonable risks of
danger or hazard, to create excessive noise, to create a
public or private nuisance or to unreasonably obstruct or
interfere with the rights and easements of others provided
by this Declaration.
Section 4. Transfer of Common Areas. Prior to or
contemporaneously with the closing o£ the first sale of any
Lot by Declarant to an Owner, Declarant shall convey or
35.
917
otherwise transfer to the Association, and the Association
shall accept frorc1. Declarant, all of Declarant's right, title
and interest in and to the Common Area subject to any and
all of the following; (i) the rights of Owners as set forth
in this Declaration, the Articles and the Byl£"s; (ii) the
lien of property taxes and assessments not delinquent
(current real property taxes shall be ptorated as of the
date of transfer); (iii) the rights of the Approving Agent
as set forth in this Declaration; (iv) such easements and
rights of way on, over or under all or any part of the
Common Area as may be reserved to Declarant or reserved for
or granted to or for the benefit of any other person for the
maintenance and improvement of any portion of the Property
or the construction, maintenance and operation of streets,
roads, utilities or other facilities or improvements; (v)
the obligation imposed, directly or indirectly, by virtue of
any statute, law, ordinance, resolution or regulation of the
United States of America, the State of California or any
other political subdivision or public organization having
jurisdiction over the Property; and (vi> any other lien,
encumbrance (including deeds of trust) or defect of title of
any kind whatsoever which would not materially prejudice the
Owners in their use and enjoyment of the Common Areas.
Section 5. Conveyance of Lots. Except,as approved
in writing by the Board of Directors, each Lot together with
the rights and interests appurtenant thereto conveyed by
Declarant to any purchaser thereof shall be held, conveyed
and treated as a single indivisible unit and shall not be
further subdivided or split or severed and no conveyance,
36.
assignment, transfer, lease or hypothecation thereof shall
be effected except of the entire Lot together with all of
the rights and interests appurtenant thereto and any attempt
to do so shall be null and void and of no force and.effect
The provisions of this Section 5 bi.ctll not be binding if the
Property is partitioned.
Sect ion 6. Development and Maintenance Easements.
There is hereby reserved to the Association and the
Approving Agent such rights, powers and easements as are
necessary to per'forra the duties and'obligations imposed by
this declaration. Furthermore, there is hereby reserved to
Declarant until all Lots are developed and sold by Declarant
such rights, powers and easements, including but not limited
to an easement over and right to use the Common Area, as
Declarant shall deem necessary to develop and resell the
Lots, and to perform any obligation, duty or act provided
for herein or by a law, rule or regulation of any
governmental agency. Such activities may include but shall
not be limited to maintenance of sales and const-motion
offices and the showing of the Property and the Lots therein
and neither the Owners nor the Association shall interfere
with the completion of the contemplated Improvements or the
sale of the Lots; provided, however, that Declarant shall
not unreasonably interfere with any Owner's use and
enjoyment of the Property and all construction and sales
activities shall be conducted in a reasonable manner and at
reasonable times.
Section 7. Establishment of Easements. Each of
the easements referred to herein shall be deemed to be
37.
919
established upon the reoocdation of this Declaration and
shall thereafter be deemed to be covenants running with the
land for the use and benefit of the respective Lots and
Common Areas and, except as otherwise provided by law. shall
ba superior to all other encumbrances which may hereafter be
applied against or in favoc of the Property or any portion
thereof.
Section 8. Personal Property of Association. All
personal property acquired by the Association (including but
not limited to, (i) that acquired in-accordance with the
Bylaws, and (ii> funds acquired pursuant to the Article v)
si-all be owned by the Association. The transfer of such
personal property by the Association pursuant to the Bylaws
shall transfer title thereto free and clear of any claim on
the part of any Owner.
Section 9. Powers Reserved to Board of Directors.
No Owner shall have the right without the prior approval of
the Board of Directors to exercise any of the powers or to
perform any ofte acts delegated to the Bard of Directors by
this Declaration.
ARTICLE VII
PARTITION
Section 1. Ho Partition. Except as set forth in
the following paragraphs, the Common Area shall remain
undivided, and there shall be no judicial partition
thereof. Nothing herein shall be deemed to prevent
partition of a co-tenancy in a Lot.
38.
920
i£S?\9D_2- Action for Partition. An action my be
brought by any Owner for partition of the Property by sale
of the entire Property, as if the Owners of all the Lots
were tenants in common in the entire Property in the same
proportion as the Owners are obligate^ to pay regx^ar and
special assessments; provided, however, that partition shall
be made only upon the showing that (i) three years after
damage or destruction to the Property which renders a
material pact thereof unfit for its use prior thereto, the
Property has not been rebuilt or repaired and substantially
to its state prior to its damage or destruction, (ii)
threefourths or more of the Property has been destroyed or
substantially damaged (or that three-fourths or more of the
Lots have been rendered unfit for their use prior to such
damage or destruction), and that Owners holding more than
fifty (50%) percent of the voting power of each class of
Members are oppoped to repair or restoration of the
Property, or (iii) the Property has been subject to this
Declaration in excess of fifty years, and Owners holding in
the aggregate more than fifty (50%) percent of the voting
power o£ each class of Members consent to partition of the
Property. Any partition shall comply with the requirements
of the Subdivision Map Act, California Government Code
§66410 et seq., or any successor statute, and the ordinances
of the City of Carlsbad adopted pursuant thereto.
Section 3. Power of Attorney. The Association is
hereby granted an irrevocable power of attorney to sell the
Property for the benefit of all the Owners thereof when
partition of the Owners' interests in the Property may be
39.
921
had pursuant to this Article VII. The power of attorney
herein granted may be exercised,by the President and
Secretary of the Association upon the vote or written
consent of a majority of each class of Members. Such
officers are hereby authorized '-o record a cartificate of
exercise in the Office of the County Recorder, San Diego
County, which certificate shall be conclusive evidence
thereof in favor of any person relying thereon in good
faith.
ARTICLE_ym
INSURANCE
Sect ion 1. Casualty... Insurance., for Lots . The
Association shall not be responsible for purchasing or
maintaining insurance coverage against fire or other
casualty on any Improvement on any Lot or within any
easement of encroachment. Each Owner shall acquire and
maintain a policy or policies of insurance for the full
ir.surable replacement value, without deduction for
depreciation, of all the Improvements en such Owner's Lot,
including, without limitation, all party walls, and within
such Owner's easements of encroachment for the interest of
and naming as insured such Owner with an agreed amount
endorsement or its equivalent, if available, or an inflation
guard endorsement. Such policy or policies shall:
(a) Provide coverage against the perils of fire,
vandalism, malicious mischief and other hazards covered by
the standard extended coverage endorsement;
40.
922
(b) Provide for a separate loss payable
endorsement in favor of the mortgagee or mortgagees of each
Lot as thsir interests may appear;
Co) Provide a separate loss payable endorsement in
favor of the Association for losses to any portion of any
easements of encroachment or improvements thereon;
(d) Provide £ov thirty (30) days prior written
notice to the Association and to such mortgagee or
mortgagees of cancellation or reduction in type or amount of
coverage, or' such other notification as may be required by
the Association or mortgagee or mortgagees;
(e) Contain a waiver of subrogation rights by the
insurer as against the Association, its officers, the Board
of Directors, and its employees, agents and
representatives. Upon obtaining such policy or policies,
such Owner shall give notice to the insurance can: tor or
carriers that the foregoing waiver of subrogation is
contained in this Declaration, and give copy of such notice
to the Association; x
(f) Bo primary to and shall not be affected by any
right of setoff, proration or contribution by reason of any
insurance held by the Association. A certificate of insur-
ance shall be provided to the Board of Directors by each
Owner evidencing the coverage required by this Section 1.
Section 2. Casualty Insurance for Common Area.
The Association shall acquire and maintain a policy or
policies of insurance for the full insurable replacement
value, without deduction for depreciation, of all the
Improvements on the Common Area and easements of
41.
923
fe. sroachment for the interest of and naming as insured the
Association, with an agreed amount endorsement or its
equivalent, ot an inflation guard endorsement. Such policy
or policies shall:
(a) Provide coverage against the perils of fire,
vandalism, malicious mischief and other hazards covered by
the standard extended coverage endorsement;
(b) Provide for separate loss payable endorsement
in favor of the mortgagee or mortgagees of the Common Area,
if any; and
(c) Provide for thirty (30) days' prior written
notice to such mortgagee or mortgagees of cancellation or
reduction in type or amount of coverage, or auch other
notification as the mortgagee or mortgagees may require.
Section 3. Casualty Insurance Proo«;ods. Proceeds
obtained by the Association under any casualty insurance
policy or policies shall be held in a separate account and
applied by th« Associ.it ion toward the repair, reconstruction
or restoration of any damage and/or destruction to all or
any portion of the Property for which payment was made. In
the event proceeds of casualty insurance cove-ing damage or
destruction to the Common Area and easements of encroachment
are paid to a mortgagee or mortgagees and by reason of such
payment insurance proceeds are not made available to the
Association to effect such repair, reconstruction or restor-
ation, then the amount of such proceeds not made available
shall be assessed and charged as a special assessment
against each Lot in the same proportion as regular assess-
ments are levied, provided that the Association may charge a
42.
924
Lot i greater proportion or a1' :;t such special assessment
if it detarmincs the casualty Ut;s resulted from the negli-
gent or intentional misconduct o£ the Owner of such Lot or
such Owner's agent, employee, representative, lessee, sub-
lessee, quest, licensee or invitee. Notice of each such
special assessment shall be mailod or delivered to each
Owner assessed and the special assessment shall thereafter
be due as a separate debt and payable to the Association
within ninety (90) days following the mailing or delivery of
such notice or within such extended period as may be ap-
proved by the Board of Directors. Such special assessment,
when paid, shall be handled and applied by the Association
in the same manner as casualty insurance proceeds.
Section 4. Lij»Mljty_ Jjnsurance. The Board of
Directors shall acquire, maintain and pay for a policy or
policies insuring the Association, its officers and the
Board of Directors against any liability resulting fcom or
incident to the ownership, management or use of the
Project. Limits of liability under such policy or policies
of insurance shall not be less than One Million Dollars
($1,000,000.00) per occurrence for personal injury and/or
property damage. The above limits shall be reviewed at
least annually by the Board of Directors and may be
increased in its discretion. Said policy or policies shall
contain severability of interest endorsements which shall
preclude the insurer from denying the claim of named
insureds because of any neglect or other act or omission of
another named insured.
43.
925
Sect ion 5. Fidelity Insurance. The Association
shall obtain a fidelity bond or insurance for directors,
officers, trustees, employees and volunteers responsible for
handling funds collected and held for the Association or the
Owners, naming as insured the Association, in an amount
sufficient to cover at least one and one-half (1/1-2) times
the Association's estimated annual operating expenses and
reserves. Such fidelity bond or insurance shall contain
waivers of any Defense based upon' the exclusion of persons
who serve without compensation from the definition of
"employee" or' similar expression.
§sc£i°!\_6 . Worker 's Compensat ion Insurance.
Worker's compensation insurance, including employer's
liability insurance, to the extent necessary to comply with
applicable laws, shall be maintained by the Association.
Section__7. Insurer Ratings. All policies of
insurance obtained by the Association or by an Owner as
provided in this Article VIII shall be obtained from an
insurance company qualified to do and doing business in the
State of California and holding a rating of "Group VI" or
its equivalent or better, by Best's Insurance Reports, and
such policie'3 may be obtained from one or more companies.
Section 8. Right of Owners to Obtain Additiona 1
Insurance. Nothing contained herein shall be construed to
prejudice the right of any Owner to obtain, at his own
expense, any personal liability, property or other insurance
as such Owner deems appropriate to protect his own
interests, provided, however, that (a) all such insurance
shall contain, the same waivers of subrogation as described
44.
in section 1 of this Article VIII, (b) notices of this
waiver of. subrogation requirement shall be given to the
insurance carrier or carriers and the Association, and (c)
the Board of Directors shall have the right and may, in its
discretion, require such Owner to deliver to the Board of
Directors a true and correct copy of any such additional
insurance policy purchased by such Owner,
ARTICLE IX
DAMAGE, DESTRUCTION ANDCONDEMNATION
Sec t_iqn_l. Common Area .
(a) As soon as practicable after the damage or
destruction of all or any portion of the Common Area, the
Board of Directors shall obtain bids from at least two (2)
reputable contractors, licensed in California, which bids
shall set forth in detail the work required to repair,
reconstruct and restore the damaged or destroyed portions of
the Common Area to substantially the same condition as they
existed prior to such damage, and the itemized cost of such
work, and shall determine the amount of all insurance
proceeds available to the Association for the purpose of
effecting such repair, reconstruction and restoration,
(b) The work proposed, whether in accordance with
the original plans and specifications therefor, or new or
modified plans and specifications, shall be subject to
approval by the Approving Agent, if any.
(c) Unless directed otherwise by the affirmative
vote of seventy-five percent (75%) or more of thg voting
45.
power of vach class of Members, the Board of Directors shall
(i) ^nter into a written contract with a contractor licensed
in California, deemed by the Board of Directors to be
competent and submitting the lowest reasonable bid for
repair, reconstruction and restoration of damaged or
destroyed portions of the Common Area, <ii) pay for such
work in appropriate progress payments from insurance
proceeds and special assessments levied upon Owners in
accordance with this Section 1 and (iii) take all steps
necessary to cause the Common Area to be repaired,
reconstructed and restored in a lawful and worker like manner
at the earliest possible date.
(d) If the cost of repairing or rebuilding exceeds
the amount of available insurance proceeds, the Directors
shall levy special assessments as provided by Article VII,
Section 3 or as otherwise required to make up any deficiency
between the total insurance proceeds and the contract price
for such repair and rebuilding, and such assessments and all
available insurance proceeds shall be paid to a separate
account ofthe Association to be used Cor such rebuilding.
Section 2. Lots. In the event of damage or
destruction to the Improvements upon any Lot or easement of
encroachment the Owner (or holder) thereof shall reconstruct
the same as soon as reasonably practicable and in accordance
with the original plans and specifications therefor, which
shall be subject to reapproval by the Approving Agent or its
successor, or such new or modified plans and specifications
as are decided upn by the Owner and approved by the
Approving Agent oe its successor.
46.
928
Section 3. Condemnation. In the event that the
Property or any portion thereof shall be taken or condemned
by any authority under the power of eminent domain oc sold
under the threat of the exercise of said power, all compen-
sation and damages relating to the l<.,iH or Improvements
shall be payable to the Association as trustee for all
Owners and mortgagees according to their respective inter-
ests as they may appear and giving consideration to the
relative degree of loss suffered with respect to each Lot.
Payments from the Association to Owners of affected Lots
shall be subject to all unpaid annual, additional or special
assessments levied against the affected Lots together with
any interest charges or fees attributable thereto. The
Association shall give prompt written notice of condemnation
proceedings to all Owners and first mortgagees of the Lota.
ARTICLE.X
RIGHTS OF JTORTGAGEES
Sg£tion__1. Right to Encumber. Any Owner may
encumber his Lot with or by a real property mortgage, deed
of trust or other instrument of hypothecation, provide that
such encumbrance also encumbers all the other rights,
interests and easements of the Owner in the Property.
Section 2. Mortgage Protection. No foreclosure of
a lien created pursuant to Article V, Section 5 shall render
invalid or extinguish the lien of any Prior Mortgage, and no
other breach of this Declaration shall defeat or render
invalid or extinguish the lien of any mortgage made in good
47.
929 -jl
faith and for value. Each and all of the provisions hereof,
however, shall be binding upon and effective against any
Owner whose title therto is acquired by or through trstee's
sale, foreclosure, oc deed in lieu of foreclosure, except
that any person who acquires title in *.urh manner under a
Prior Mortgage shall take ttile to said Lot free of the line
hereof for all assessments that have accrued up to ths time
of trustee's sale, foreclosure, or deed in lieu of foreclo-
sure, but subject to any liens for all charges that shall
accrue subsequent thereto. If any mortgagee, trustee or
beneficiary becomes an Owner by virtue of trustee's sale,
foreclosure or deed in lieu of foreclosure and thereafter
sells and conveys his Lot and receives back any mortgage or
deed of trust as security for all or part of the purchase
price, such mortgage or deed of trust shall be subject and
inferior to any lien which may arise for regular or special
assessments accrued during the period such mortgagee,
trustee or beneficiary was an Owner. The breach of any of
the provisions hereof may be enjoined, abated, or reviewed
by appropriate proceedings, notwithstanding the lien or
existence of any mortgage or deed of trust.
Section 3. Not_ice_o_fJDe.f.ay.lt. If an Owner
defaults in the performance of any obligation under this
Declaration (including non-payment of assessments), the
Articles or the Bylaws and such default is not cured within
thirty (30) days after the occurrence of default, the first
mortgagee of such Owner's Lot, if it so requests, shall be
so notified in writing by the Association. Failure to give
such notice shall not affect in any manner any eight or
remedy of any person or entity provided by Article XII.
48.
930
Section 4. Access to Records. Upon request, first
mortgagees of Lots shall have the right to (a) examine the
books and records of the Association at reasonable times and
after reasonable notice; (b) receive a copy of the annual
report provided to Members by the Association within 12 J
days following the end of the fiscal year of the Associa-
tion; and (c) r ceive notice, in the same manner as given
other recipients, of all meetings of the Association and
designate a representative to atfend all such meetings,
provided, howevec, that inadvertent failure co qlve sucn
requested notice shall not invalidate any action taken at
any such meeting. Upon request, the Approving Agent shall
have the same rights provided by this Section 4.
ie.c.t-iS.'.LJ?• ki®.!!?. The Association and Declarant
shall take all reasonable steps so that all taxes,
assessments and charges which may become liens prior to
first mortgages on the Lots under local laws shall relate
only to the individual Lots and not to the Property as a
whole.
Sect ion j>. Default Payments and Reimbursement s.
Mortgagees of Lots or of the Common area, may, joiatly or
singly, pay taxes or other charges which are in default and
which may or have become a charge against all or any portion
of the Common Area, and pay overdue premiums on casualty
insurance policies or secure new casualty insurance coverage
on the lapse of a policy for the Common Area or a Lot.
Mortgagees making such payments shall be owed immediate
reimbursement therefor from the party responsible for paying
such taxes and other charges or maintaining such insurance.
49 .
931
Section 7. Inconsistent Provisions. The teems of
this Article X shall prevail over any other inconsistent oc
contrary provisions contained in this Declaration, the
Articles or the Bylaws,
ARTICLE XI
PARTY WALLS
Section 1. General Rules of Law to Apply to.Party
Walls. Each wall which is built as a -part of the original
construction of buildings upon the Lots and placed on the
dividing line between the Lots shall constitute a party wall
("Party Wall"). To the extent not inconsistent herewith,
the general rules of law regarding Party Walls and liability
for property damage due to negligent or willful acts or
omissions shall apply thereto. Each of the Owners shall
assume the burdens and obligations provided herein and be
subject to an easement for the portion of a Party Wall on
his Lot or his easement of encroachment, and be entitled to
the rights and benefits pertaining to such Party Wall.
Section 2. Maintenance of Party Walls. At his own
expense, each Owner shall maintain in a good state of repair
the side of each Party Wall facing his Lot and shall do
nothing, without the written approval of the adjoining Owner
and the Approving Agent or its successor, which may alter,
modify, damage, impair or tend to alter, damage, modify or
impair the structural integrity of any Party Wall. Except
as required for construction or authorized repairs,
modifications or alterations, no nails, screws, bolts or
50.
932
other oojects shall be driven more than three (3) inches
into any Party Wall.
Seotion_3_. Damage to Party_ Wai Is . In the event
any Party Wall is damaged or destroyed through the act of an
adjoining Owner or such Owner's agent, employee, representa-
tive, lessee, sublessee, guest, licensee or invitee (whether
or not such act is negligent or otherwise culpable), no as
to deprive the other adjoining Owner of the full use and
enjoyment of such Wall, then the responsible Owner shall
forthwith rebuild and repair the same in as good a condition
as formerly existed, without cost to the adjoining Owner.
If such Party Wall is damaged or destroyed by some cause
(including ordinary wear and deterioration from lapse of
time) other than the act of one of the adjoining Owners or
"such Owner's agent, employee, representative, lessee, sub-
lessee, guest, licensee or invitee, the Owners whose Lots
adjoin such Wall shall forthwith rebuild or repair the same
to as good a condition as formerly existed at their joint
and equal expense.
§6£ti.9D_l- Easement for Repair of Party Malls. An
easement Cor repair of a Party Wall upon each Lot idjoining
a Party Wall shall be reserved for the benefit of the
adjoining Cot, as dominant tenement, and the Owner of the
dominant tenement may perform such work during daylight
hours, and following reasonable notification, as may be
necessary or desirable in connection with the repair or
restoration of the Party Wall and the maintenance, repair or
restoration of the Unit of which it is a part, and an
easement for ingress and egress to perform such work shall
also be reserved.
51.
933
Section 5. Alterations. No addition, alteration,
repair or restoration to any Party Wall shall be commenced,
eiected or maintained until the plans and specifications
showing the nature, kind, shape, height, materials, location
and approximate cost of the same shall havf. ^">en approved in
writing by the Approving Agent oc its successor.
Section 6. Dispute. In the event of a dispute
between Owners with respect to the repair or rebuilding of a
Party Wall or with respect to the. sharing of the cost
thereof, then upon the written request of one of such Owners
addressed to the Association, the matter shall be submitted
to the Board of Directors or a committee designated by the
Board who shall decide the dispute. The decision of the
Board of Directors or such committee acting as arbiter may
be made the basis of a judgment under the laws of the State
of California dealing with judgments obtained upon
arbitration awards.
ARTICLEI XI_I
ENFORCEMENT OF RESTRICTIONS
Section_l. Enforcement. After the date on which
this instrument has been recorded, the covenants, condi-
tions, servitudes, rights, reservations, limitations, liens,
charges, and restrictions contained in or provided by this
Declaration, the Articles and the Bylaws may be enforced by
any and all available remedies, including, but not limited
to, injunction, damages, declaratory relief, and actions to
abate nuisances by the Association or its successors in
52.
934
interest, which shall have the right and duty to enforce the
same, and/or by the Approving Agent or ar.y one or more
Owners, except that neither the Approving Agent nor any such
Owner shall have the right, independently of the Associa-
tion, to enforce any assessment, lien or charge created
herein. The result of any and every act or omission which
violates, in whole or in part, this Declaration is hereby
declared to be and constitutes a nuisance, and every avail-
able remedy at law or. in equity against either a public or
private nuisance shall be applicable against every such
result and may be exercised by the Association or its
successors in interest, the Approving Agent or any Owner.
The remedies provided for herein for a breach of the
covenants contained in this Declaration shall be cumulative
and no remedy shall be deemed to be exclusive.
Section 2. Attorneys' Fees. In any legal or
equitable proceeding to enforce or restrain the violation of
any provision of this Declaration, including any appeals,
the party or parties against whom judgment is rendered shall
pay the costs of the prevailing party or parties, including
reasonable attorneys' fees, in such amount as may be fixed
by the court in such proceedings.
Section 3. Failure to Enforce Not a Waiver of
Rights. Failure of the Association, Approving Agent or any
Owner to enforce any provision of this Declaration shall in
no event be deemed to constitute a waiver of the right to
any time thereafter enforce such provision or any other
provision contained in this Declaration.
53.
ARTICLE XIII
DURATION, MODIFICATION AMD ASSIGNMENT
Section j.. Term of Restrictions. This Declaration
and every provision hereof shall contin-. in full force and
effect for a period of fifty (50) years from the date hereof
and thereafter shall be deemed to have been, renewed for
successive terms of ten (10) years each unless revoked or
amended by an instrument in writ-ing, executed and
acknowledged by the Owners of a majority of the Lots, which
instrument shall be recorded in the Office of the County
Recorder of San Diego County, California, within ninety (90)
days prior to the expiration of the initial effective period
hereof or any ten (10) year extension.
Section 2. Amendments. This Declaration may be
amended by the'vote or written approval of Members
representing seventy-five percent (75%) of the voting power
of each class of Members. Each such amendment shall be-
effective upon recocdaticm in the Office of the Countv
Recorder of San Diego County, California of a written
instrument setting forth such amendment and signed and
acknowledged by the Board of Directors, who shall certify in
said written instrument that Members representing not less
that seventyfive percent (75%) of the voting power of each
class of Members have voted for or given their written
approval of such amendment; provided, however, that any
material amendment, in order to become effective, shall also
require the written approval of first mortgagees holding at
least fifty percent (50%) of the total number of first
mortgages on the Lots or the Common Area.
54.
Section 3. Assignments of Declarant's Rights and
Duties, Any and all of the rights, powers and duties of
Declarant herein contained may be assigned to any pecson or
entity which will assume the duties of Declarant pertaining
to the particular rights, powers and dui ;*>-: assigned, and
upon any such person or entity evidencing its consent in
writing Co accept such assignment and assume such duties, he
or it shall, to the extent of such assignment, have tho same
rights and powers and be subject to the same obligations and
duties as are given to and assumed by Declarant herein.
ARTICLE XIV
MISCELLANEOUS. P.RO.VIS IONS
Sec_tion_l. Constructive Notice and Acceptance.
Every person who now o~ hereafter owns or acquires any
right, title or interest in or to any portion of the
Property is and shall be conclusively deemed to have
consented and agreed to every limitation, covenant,
condition, restriction and other provision of this
Declaration.
Section 2. Mutuality, Reciprocity, Runs with
Land, All limitations, restrictions, conditions, covenants
and agreements contained herein are made for the direct,
mutual and reciprocal benefit of each and every part and
parcel of the Property; shall create mutual, equitable
servitudes upon each parcel in favor of every other parcel;
shall create reciprocal rights and obligations between the
respective Owners of all parcels and privity of contract and
55.
937
estate between all grantees of said parcels, their heirs,
successors and assigns; and shall run with and bind the
Property and inure to the benefit of the Association and the
Owner of any Lot subject to this Declaration or their
respective legal representatives, heirs, successor:: and
assigns for the full effective term of this Declaration and
any extension thereof.
Section 3. Construction. The provisions of this
Declaration shall be liberally construed to effectuate its
purpose of creating a general plan for the development and
operation of the Property as a planned industrial
development. All title and paragraph headings used in this
Declaration are intended solely for convenience of reference
and shall not be considered or referred to in resolving
questions of interpretation or construction.
Section 4. Seyerability.. The provisions hereof
Shall be deemed to be independent and severable and the
Invalidity or partial invalidity or unenforceability of any
one provision or portion hereof shall not affect the
validity or enforceability of any other provisions hereof.
Section 5. Power of Attorney. To the extent
necessary to carry out and enforce the provisions of this
Declaration, an irrevocable power of attorney coupled with
an interest is granted to the Association by the Owners;
provided, however, that this Section 5 shall not affect,
limit or abridge in any way the rights reserved by Declarant
or granted to the Approving Agent in this Declaration.
Section 6. Limitation of Liability. The
Declarant/ Approving Agent, Association, Directors or any
56.
938
agents or employees of any of them shall not be liable for
any failure to provide any service or perform any duty,
function or responsibility designated or provided in this
Declaration or the Articles or Bylaws to be performed by the
same, or for injury or damage u> persons or properties,
unless caused by the intentional misconduct of such party or
except to the extent of insurance proceeds paid for such
damage or injury.
Section 7. Nqtjlces. -Any notice required to be
sent to any Member under the provisions of this Declaration
shall be deemed to have been received when delivered
personally or mailed first-class, proper postage prepaid, to
the last known address of the person who appears ar, a Member
on the records of the Association at the time of such
mailing.
IN WITNESS WHEREOF, the undersigned, being the
Declarant herein, has executed this instrument on tho date-
first above written.
PALOMAR TECH CENTRE PARTNERSHIP,a California limited Partnership
By Interamerican Development Company,a California limited PartnershipIts General Partner
By Trembley Limited, a California
corporation
Its General Partner
ssbll Werdin, Jr., President
57.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On May 29, 1984 before me, the
undersigned, a Notary Public in and for said State,
sonally appeared E. Russell Herdin, Jr.
personally known to me or proved to me on the basis of
satisfactory evidence to be the person who executed the
within instrument, as the President of the corporation thatexecuted the within instrument on t.t>h^lf of Interamerican
Development Company, the partnership that executed the
within instrument, and acknowledged to me that such
corporation executed the same as such partner and that such
partnership executed the same.
WITNESS my hand and official seal.
Signature
1390S
••»»•«•»««««,»»«,.,»»„„„,„
* OFFICIAL SEAL f
JJ*™ SC/WPINATO |NOTA2y«"»tlC-OU.IFORNIA *ORANGE COUNTYM»C*w«iuluiEi!>ifHlirw.29 i
58.