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HomeMy WebLinkAboutCT 83-10; Graham International; Tentative Map (CT)1459 KCOSWK8 KgvesnD e« cu:r woe •> HUE CO. 83-380388 ___ I omci'Ai. ntcoaor.IOFSA'!>tOi9i;i;i.l;ov.>:.> 0CT2I & 9'15'i Recording Reques^d by: Carl J. Colombo /-^~f>f\*dlt a Vice President When Recorded Mail To: GRAHAM INTERNATIONAL, INC. 212.1 Palomar Airport Road, Suite 300 Carlsbad, California 92008 (Space above this line for Recorder's Use) DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, LIMITATIONS AND RESERVATIONS GRAHAM BUSINESS PLAZA 1460 INDEX TO DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, LIMITATIONS AND RESERVATIONS GRAHAM BUSINESS PLAZA RECITALS ARTICLE I Section Section Section Section Section Section Section Section ARTICLE II Section Section - 1 2 3 4e I 7 8 - 1 2 DEFINITIONS Ar. -: Delation Board of Directors Owner Building Properties Common Area Lot Declarant PROPERTY RIGHTS Owner's Easements Delegation of Use ARTICLE III - MEMBERSHIP, VOTING RIGHTS AND DUTIES OF ASSOCIATION Section 1 Membership Section 2 Class A and Class B Members Section 3 Duties and Obligations 01; the Association Section 4 Reconstruction and Condemnation Section 5 Powers and Authority of the Association Exercise of Rights and Powers of the Association Arbitration Section 6 Section 7 ARTICLE IV - COVENANT FOR MAINI-UAHCE. ASSESSMENTS Section 1 Creation of the Lien and Personal Obligt>ticn of Assessments Section 2 Purpose of Assessments Section 3 Annual Assessment Section 4 Special Assessments for Capital Improvements i. Page 1 2 2 2 2 3 3 3 b 9 9 9 10 14 15 20 20 20 20 22 22 22 146; INDEX (cont'd.J ARTICLE VII - DRAINAGE COURSES/OTHER EASEMENTS Section 1 Access Easement Section 2 Drainage Pattern/Drainag, Systems Section 3 Sheetflow Easement." ARTICLE VIII - GENERAL PROVISIONS Section 1 Creation of Standards of Maintenance by Association Section 2 Duties of Owner Section 3 Notice of Non-Compliance and Enforcement Section 4 limitation of Authority Section 5 Enforcement Section 6 Severability Section 7 Amendment Section 8 Annexation Section 9 Rules and Regulations Page 41 41 41 42 42 42 43 43 43 44 45 45 46 46 iii. INDEX (cont'd.l Section S Section 6 Section 7 Section 8 Section 9 Section 10 Special Assessments Against Lot owner Notice and Chorum for any Action Authorized Under Sections 3 and 4 Uniform Rate of Assessment Date of Commencement of Ann »1 Assessments; Due Dates Effect of Nonpayment of Assessments; Remedies of the Association Subordination of the Lien to Mortgages ARTICLE V - ARCHITECTURAL CONTROL Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section S Section 10 ARTICLE VI - Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Section 10 Section 11 Section 12 Section 13 Section 14 General Restriction Standards of Approval Conditions of Approval Notice of Disapproval No Waiver Conformance with Plans and Specifications Certificate Purchasers and Encumbrances Disclaimer of Liability Expenses USE RESTRICTIONS Insurance Matters Signs Use Structural Changes Additions and Removals Parking Illegal Activities Prohibited Activities Trash Removal Antennas Maintens~ -o Interests Appurtenant Mobile Homes, Travel. Trailers and Recreational Vehiclea Restoration Page 23 23 24 24 26 30 31 31 32 33 3<i 34 35 35 36 36 37 37 37 37 38 38 38 38 39 39 39 39 40 40 40 4.1 DECLARATION OP COVENANTS, CONDITIONJ, RESTRICTTONS, LIMITATIONS AND RESERVATIONS GRAHAM BUSINESS PTAZA THIS DECLARATION is made on the date hereinafter set forth by GRAHAM BUSINESS PM2A, a California Limited Partnership, hereinafter referred to as "Declarant." RECITALS WITNESSETH: WHEREAS, Declarant is the owns-' of certain property in the County of San Diego, State of Califon. Ha, which is wore particularly described as: Lots 1, 2, 3, 4, 5 and 6, Tract 83-10 in the City of Carlsbad, County of San Diego as per Map NO. 10738, filed in the office of the County Recorder of San Diego County on October 17, 1983. WHEREAS, it is contemplated that Declarant shall sell and/or encumber by deed of trust Lots within said Tract 83-10; 1. v 1464 NOW THEREFORE, Declarant hdreby declares that all of the property described above and the interests in each and every lot and parcel thereof shall be owned, held, sold, used, occupied, conveyed, rented, hypothecated, mail Lcuned, altered and improved subject to the following easements, restrictions, covenants, conditions, limitations u-id reservations which are established pursuant to a common plan for the uniform subdivision, improvement and use of the real property and each lot and parcel thereof, which are for the purpose of protecting the value, desirability and attractiveness of, and which shall run with, the title to the real property and each lot and parcel thereof and be binding on all parties having any right, title or interest in the described properties or any part thereof, their heirs, successors and assigns, and shall inure to the mutual and separate benefit of each owner interest in the real propurty, and each lot and parcel thereof. ARTICLE I DEFINITIONS Section 1. "Association" shall mean and refer to The Graham Business Plaza Property Owners Association, its successors and assigns. Section 2. "Board of Directors" shall mean and refer to the Board of Directors of the Association. Section 3. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of an 2. interest in and to any Lot whicn .vs a part of the Properties, including a vendee under an installment land sales contract in possession of any Lot as well as a ground lessee under a ground lease of any Lot for an original f?xed term of not less than twenty-five years, but excluding any person or entity who holds an interest merely as security for the performance o£ an obligation, including a mortgagee unless and until such person has acquired by assignment or otherwise the record title interest or a vendee's possessory interest by foreclosure or any proceeding in lieu of foreclosure. Section 4. "Building" shall mean and refer to any structure used or intended for supporting or sheltering any use or occupancy. Section 5. "Properties" shall mean and refer to that certain real property hereinbefore described, and such addition? thereto as may hereafter be brought within the jurisdiction of the Association. Section 6. "Common Area" shall mean the all real property (including the improvements thereto) owned by the Association for the common use and enjoyment of the owners. The Common Area to be owned by the Association at the time of the conveyance of the first lot is described as follows: Lot 6 of Tract 83-10 which consists of the real property contained in Tract 83-10 as per map recorded in Book , Pages inclusive of 3. v- 1466 Maps records of said San Diego Counxy excepting therefrom those parcels designated as Lots 1 through 5 inclusive thereon, toother with a non-exclusive easement over and across ti.et portion of the property described as Lot 5 of Tract 83-10 identified on the map of said tract 83 said easement area foi pedestrian and vehicular ingress and egress; Declarant agrees to convey said Common Area to the Association concurrently with the conveyance of the first Lot by Declarant, The Common Area shall be conveyed subject to the lien of any property taxes and assessments not delinquent, such easements as may be reserved to Declarant for purposes of ingress, egress, maintenance or improvement or granted by Declarant to facilitate the construction and/or operation and maintenance of roads, streets, utili- ties or any public or quasi-public facility or improvement deemed by Declarant to be necessary or desirable for the comfort, safety, or convenience of the Owners. Declarant or Declarant's successors in interest shall also reserve such non-exclusive easements over the Common Area as are appurtenant to each Lot to be conveyed. With respect to the Common Area Declarant has reserved an exclusive and perpetual easement for the construction of a parking structure on the terms set forth herein. In addition thereto the Common Area may be conveyed subject to such •.- 1467 liens, encumbrances and defects of title which do not prejudice in any material manner the Owners' use and enjoy- ment of the Common Area. All rights of use of roadways within the Common Area shall be nonexclusive and subject to such rights of use in third parties as may be reflected by the record, as reflected the above referenced Trac' nap or as may have arisen by nrescription. Those portions of the Common Area to be utilized as parking areas are not appurte- nant to any particular Lots and each Owner shall enjoy the right to use same on a non-exclusive basis subject to the right of the Board of Directors to allocate that number of spaces within said Parking Areas to particular Lots in the approximate proportion to which the interior square footage constituting rentable area within each Building on each Lot bears to the total interior square footage constituting rentable area within all Buildings on all Lots. The discretion of the Board of Directors reasonably exercised within the formula set forth above shall be determinative both as to the number of parking spaces allocated to a particular Lot and their location. The Board of Directors may record a supplement to this Declaration to provide record evidence of the allocation and location of said parking spaces. Declarant expressly reserves the right and easement to construct a two level parking structure within the Cor.non Area. Declarant or Declarant's successor in 5. v- 1466 interest may also cause to he constructed improvements to Lots 2, 3.. 4 and 5. In conjunction therewith and in conjunction with the reservation to Declarant of its right aiul easement to build a parking structure, Declarant reserves the right and easement to utilize portioi of tho Common Area for purposes of a temporary construction easement including but not limited to use of same as a lay down and storage area for materials and supplies, for access of vehicles and machinery to the site, right to grade same as necessary to construct the improvements and to do all things reasonably required to construct said improvements provided that construction of said improvements and t..o location of said parking structure does not prevent access to the Lots of other Owners or unreasonably interfere with vehicular ingress, egress and parking of other Owners. Upon completion of the parking structure, Declarant shall convey said parking structure to the Association which shall own, operate and maintain same as a portion of the Common Area in accordance with this Declaration. Declarant's rights and easements to construct said parking structure may be assigned by Declarant to any S" -sssor in interest as fee owner or ground lessee of any Lot providing that Declarant specifically conveys said rights and easements by recorded instrument. Declarant's rights and easements incident to the construction of the improvements to Lots 2, 3, 4 and 5 shall pass to its successor in interest as fee owner or 6. 146S ground lessee o£ each of said Lots 2,3,4 anr1 5 and the cor atruction easements to construct improvements to each of said Lots shall be deemed appurtenant to each of said Lots. The Declarant and/or the Association at Its election may install either on any building or on any of the Lot*, or within the Common Area a satellite dish to receive transmissions of radio or television programming, and the cost of installation of same and maintenance and repair of same shall be treated as an expense of improvement and maintenance of the Common Area, and all Lot Owners shall have a non-exclusive right of use of same and shall be provided cable access to the Lot line of each Lot. The Declarant on behalf of itself and the Association hereby reserves the right and easement to construct, repair, replace and maintain said satellite dish on either any building located on any Lou or wdthin any portion of the Common Area providing that the location of same within the Common Area does not unreasonably interfere with access to tl»e Lot of any Owner or vehicular ingress, egress or parking of other Owners. In the event Declarant exercises its rights to construct the satellite dish it shall upon reimbursement of its reasonable cost thereof convey same to the Association which shall own, operate and maintain same as an amenity of the Common Area. 7. >j- 1470 Section 7. "Lot" shall mean and refer to the any plot of land shown upon any recorded subdivision map of the Properties as a numbered Lot. Section 8. "Declarant" shall mean and refer to Graham Business Plaza, a California Limited Partnership, and its successors and assigns if such successors or assigns should acquire more than two Lots from the Declarant for the purpose of sale. ARTICLE II PROPERTY RIGHTS Section 1. Owners' Easements of Enjoyment. Every owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following pro- visions: (a) the right of the Association to establish uniform rules and regulations pertaining to the use of the Common Area; (b) the right of the Association to suspend the voting rights of an owner for any period during which any assessment against his Lot re^^ns unpaid; and for a period not to exceed 30 days for any infraction of its published rules and regulations but only after the giving of 15 days' prior notice of the Board of Director's proposed action and the reasons therefor and only after said owner fails to request a hearing before the Board of Director., of the Association within five days before the proposed effective date of the action as reflected in the written notice to said owner or ^fter sue'-, hearing before the Board of Directors if said owner requests same; (c) the righ*- of the Association to dedicate or transfer fee title to all or any part of 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 dedication or transfer shall be effective unless an instrument agreeing to such dedication or transfer has been signed and recorded by the Owner or Owner(s) entitled to cast three-fourths of the votes of the Association, and unless written notice of the proposed action is ssnt to each Owner not less than thirty (30) days nor -nore than sixty (60) days in advance; (d) the right of the Association to execute such other and further documents as may be necessary to grant or to perfect a grant of a non-exclusive easement for vehicular and pedestrian ingress. Section 2. Delegation of use. Any owner may delegate, in accordance with the Bylaws, his right of enjoyment to the Common Area and facilities to his business invitees, his tenants, sublessees or vendees under contract 9. of sale who are in possession, and the employees and business invitees of the Owner/ tenant or sublessees. ARTICLE III MEMBERSHIP, VOTING RIGHTS AND DUTIES OF ASSOCIATION Section 1. Membership Every Owner of a lot wh..ch is subject to assessment shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment. Any sale, transfer or conveyance of such Lot shall operate to transfer the appurtenant vote without the requirement of any express reference thereto. Section 2. Class A and Class B Meinbors. Upon the transfer of the first Lot (exclusive of the Common Area) by Declarant, the Association shall have two classes of voting membership: Class A. Class A members shall be all Owners, with the exception of the Declarant, and shall .. -i entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they determine, but in no event shall more than one vote be cast with respect to any Lot. Class B. The Class B member(s) shall be the Declarant and shall be entitled to four (4) votes for each Lot owned. The Class B membership shall cease 10. 1473 when the Declarant no longer own." a fee simple interest in any Lot. Until the conveyance of the first Lot (exclusive of the Common Areas) by Declarant all voting coni-:ol of tho Association shall be vested in Declarant. Section 3. Dutiep and Obligations of the Association. In addition to the general duties and obligations of the Association set forth herein, the Association shall have the obligation and duty, subject to the provisions of this Declaration, to do and pi.-form each and every cf the following for the benefit of its members: (a) To accept all right, title and interest in and to the Common Areas conveyed to it by Declarant pursuant to the terms of this Declaration. (b) To maintain, repair, replace and improve all landscaping, parking lot and aisle and trafficway surfaced, all non-public utility easements including but not limited to storm drains, surface and subsurface drainage systems, sewers, electrical systems, conduits and appurtenances including lighting systems as well as such other improvements which may be constructed on the Common Area including the parking structure and satellite dish referenced at Section 6 of Article I. hereof. (c) To convey, immediately prior to any dissolution of the Association as a corporate entity, all of its right, title and interest in and to the Properties to an 11. 1474 independent corporate trustee, to hold such right, title and interest in trust for the benefit of the incorporated association formed pursuant to the provisions hereof and for the benefit of the Owners pursuant to the terms hereof and the Articles and Bylaws of the Association. <d) To the extent not assessed to ii_o members, the Associntic:. shall pay all real and personal property taxes and assessments levied upon any portion of the Properties owaed or administered by it as provided hereunder. Taxes and assessments attributed to the Lots which are not assessed to each Owner on his secured real property tax bill shall be paid as an expense of the Association and therefor borne by each Lot Owner equally through payment of the annual assessments. (e) The Association shall obtain and maintain in force the following policies of insurance, or an equivalent blanket, all risk insurance policy: (1) fire and extended coverage insur- ance on all improvements which the Association is obligated to insure from time to time located upon or within the Properties, the amount of such insurance to be not less than ninety percent (90%) of the aggregate full insurable value, meaning actual replacement value (exclusive of the cost of excavations, foundations and footings) of such improvements, as from time to time determined by Association; 12. 1475 (2) bodily injury liability insurance w'th limits of not less than Three Million Dollars ($3,000,000) per occurrence insuring against any and all liability respecting or arising out of the maintenance or use of the portion of the Properties owned by it; and (3) property damage liability insurance with a deductible of not more than One Thousand Dollars ($1,000) and a limit of not less than Three Hundred Thousand Dollars ($300,000) per accident. (41 Directors and Officers liability insurance with a limit of Two Million ($2,000,000) at such time as this type of coverage is available. The policy or policies of insurance referred to in Subparagraphs (2) and (3) above shall name as insured the Association, its representatives and employees as well as the Owners. Such policy or policies shall protect each of the insurers as if each were separately insured under separate policies; provided, however, that such policy or policies shall not require the insured or insurers to pay any amount in excess of the maximum limits stated therein. Each and every policy of insurance obtained by the Association, whether or not required to be obtained pursuant to this declaration, shall expresaly waive any and all rights of subrogation against Declarant, its representatives and employees, and any Owners. 13. 1.J7C (i) Subject to the limitation contained herein including but not limited to those pertaining to assessment powers, the Association shall accept and act upon applications submitted to it for the development of facilities or other improvements within the portion of the Properties owned by it. Section 4. Eecon.°'-'-uction and Condemnation. (a) The Association shall promptly repair and restore any improv-ments required to be maintained by it. in the event of damage to or destruction of such improvements as the result of casualty. The proceeds of insurance, if any, on such improvements shall be applied to such repair and restoration, and any costs of repair or restoration not covered by such insurance shall constitute an expense of the Association. Any such repair or restoration shall be substantially in accordance with the original plans and specifications for such improvement. (b) In the event that at any time any portion of the Common Areas shall be acquired or condemned by any authority having the power of eminent domain, all compensation and damages for or on account of such property taken shall be payable to the Association and shall be used by the Association to acquire and develop alternative property and facilities for the benefit and use of the Owners; provided, however, that in the event that a majority of the Owners should elect not to acquire or develop such 14. alternative facilities, such compensation and damages shall, subject to the provisions of the Master Sublease, be distributed to all such Owners and their mortgagees according to the relative values of the Lots ana Builciings affected by the condemnation as determined by an independent MAI appraiser employed by and at the expense of the Association, provided, however, tha.. the name of the appraiser shall be given to said Owners and should a majority in number of the Owners of the Lots affected object to the appointment of said appraiser within ten days of receipt of such notice a majority in number of the Owners of the Lots affected by said condemnation shall select by majority vote an appraiser of their choice to make the appraisal called for hereunder. Section 5. Powers and Authority of the association (a) The Association shall have all of the powers set forth in this Declaration, its Articles and Bylaws, together with its general powers as a nonprofit corporation subject only to such limitations upon the exercise of said powers as are expressly set forth in this declaration and its articles and Bylaws, to do any and all lawful things which may be authorized, required or permitted to be done by the Association under and by virtue of the provisions of this Declaration and to do and perform any and all acts which may be necessary or proper for or incidental 15. ..»' 1473 to the exercise of any of the express powers of the / -sociation or for the peace, health, comfort, safety or general welfare of its members or for the proper mainte- nance, repair, operation or administration of the portions of the Properties owned or administered bv the Association. (b) Without in any way limiting the generality of the provisions of Paragraph (a) of this Section 5, the Association, in fulfilling any of its obligations or duties under this declaration, shall have the power and authority; (1) to contract- and pay for, or otherwise provide for, the construction, maintenance, operation, repair, restoration, ard administration of a].1. improvements of whatever kind and for whatever purpose from time to time located upon those portions of the Properties owned by it upon such terms and conditions as the Board of Directors shpll deem appropriate; (2) to obtain, maintain and pay for such insurance policies or bonds, whether or not required by paragraph (d) of this Section 3, as the Board of Directors shall deem to be appropriate for the protection or benefit of the Association, the portions of the Properties owned by it, the members of the Board of Directors and the members of the Association, including, but not limited to, war risk insurance, builder's risk insurance, additional comprehensive liability insurance, workmen's compensation 16. 147S insurance, malicious mischief insurance, au non-ownership insurance, and performance and fidelity bonds; (3) to contract and pay for, or otherwise provide for, such utility services, including, Dut not limited to, water, cewer, garbage, electrical and gas services, as the Board of Directors may from time to ti.i\e deem necessary or desirabJ"; (4) to contract and pay for, or other- wise provide for, tlrs services of architects, engineers, attorneys and certified public accountants and such other professional and nonprofessional services as the Board of Directors may from time to time deem necessary; (5) to contract and pay for, or other- wise provide for, fire, police and such other protection services as the Board of Directors may from time to time deem necessary or desirable for the benefit of the portions of the Properties owned by it or for the benefit of the Lots owned by the members of the Association; (6) to contract and pay for, or otherwise provide for, such materials, supplies, furniture, equipment and labor as the Board of Directors may from time to time deem necessary or desirable; (7) to pay and to discharge any and all liens from time to time placed or imposed upon any portions of the Properties owned by it, or any improvements thereon, on account of any work done or caused to be done by the 17. JU8C Association in the fulfillment of any of its obligation; and duties of maintenance, repair, operation, administration or improvement; and (8) to pay and to discharge c.ny and all property taxes and special ascessments from time to time imposed on or attributable to the Common Area. (c) Subject to the limitations contained in paragraph (c) ot" Section 1 of Article II with respect to dedications to the public, the Board of Directors shall have the power and authority froir. time to time to grant and convey to any third party such easements, rights-of-way, parcels or strips of land in, on, over or under the portions of the Properties ownec1 by it, for the purpose of constructing, erecting, operating and maintaining thereon, therein and thereunder (1) roads, streets, walks, driveways, parkways and park areas, (2) poles, wires, and conduits for the transmission of electricity for light:iig, heating, power, telephone, television and other purposes and for the necessary attachments in connection therewith, and (3) sewers, storm water drains, land drains and pipes, water systems, sprinkling systems, water, heating and gas lines or pipes and any and all equipment in connection with the foregoing. (d) The Board of Directors may, from time to time, employ the services of a manager to manage its day-to-day affairs, and, to the extent not inconsistent with 18. the laws of the State of California -pel upon suoh conditions as are otherwise deemed advisable by such Board of Directors, the Board of Director? may delegate to the manager of any of its powers for the day-'-.o-day management of such Association end the portions of the Properties owned or administered by it. (e) Thf> Association shall have the right to enforce all rules and regulations which shall be duly established from time to time under the provisions of Section 9, Article VIII of this Declaration. It any Owner or person holding under him, or their tenants, sublessees, employees, employees of Owner, or thair business invitees, or any of them shall violate or fail to comply with any of said rules and regulations of the Association or any of the provisions of this Declaration, the Board of Directors may in its discretion bar such Owner and persons holding under him, their tenants, sublessees, employees of owner, or their business invitees suspend the voting rights of such Owner during such time or times as such Ovmer or person shall be in violation or noncompliance or for a period not to exceed thirty (30) days for each violation, whichever shall be greater. Before invoking any such fine or suspension, the Board shall give the member notice in accordance with paragraph (b) of Section 1 of Article II as well as an opportunity to be heard either in person or by counsel. 19. Section 6. Exercise of Rights and Powers of tiie Association. All rights and powers of the Association other than those to be exercised by the Architectural Committee as provided for herein shall exclusively reside in and be exerci&ed by the Board of Directors consisting of no less than three members elected pursuant to the provisions of i_s articles, Bylaws and this Declaration. Subjoct to Subpara- graph (d) of Section 5, all rights, powers, privileges, duties or obligations of the Association shall only be exercised or performed upon the affirmative majority vote of the Board of Directors in accordance with the Articles, Bylaws and this Declaration. Section 7. Arbitration. Any controversy or claim arising between the Association and any Owners relating to their respective rights and duties under this Declaration shall be settled by arbitration in a mutually satisfactory location in accordance with the Rules of the American Arbitration Association then existing, and judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy. The costs of such arbitration shall be allocated in the arbitration award. ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each Lot 20. owned within the Properties, l.er eby covenants, 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 agree to pay to the Association: (1) annual assessments or charges, and (2) special assessments for capital improvements, such assessments to be established jnd collected as hereinafter provided. The annual and special assessments, together with interest/ costs and reasonable attorneys' fees, shall, upon the filing of the Notice of Assessment in accordance with the provisions of paragraph (a) of Section 9 hereof by the Board of Directors or manager of the Association, be a charge on the land and shall be a continuing lien upon the property againrt which each such assessment is made. Each such assessment, together with interest, costs, and reasonable attorneys' fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them; provided, however, that in the event there is an unsatisfied Notice of Assessment issued in accordance with the provisions of paragraph (a) of Section 9 hereof of Record at the time the deed of conveyance is recorded, the grantee's title shall be subject to the lien evidenced by said Notice of Assessment. 21. ...*- 1484 Section 2. Purpose of Assessments. The assess- ments 13 led by the Association shall be used exclusively to promote the health, safety, and welfare of the Owners of the Properties, their tenants, sublessees and business invitees and more particularly for the improvement and maintenance of the Commc i Area and the provision of services relative thereto. The Board of Directors may provide for a reserve fund in the annual assessment for replacement of improvements in the Common Area. Such fund shall be k<apt separate from the operating funds of the Association. Section 3. Annual Assessment. The amount and time of payment of annual assessments shall be determined by the Board of Directors of the Association pursuant to the Articles of Incorporation and Bylaws of said Association after giving due consideration to the current maintenance costs and future needs of the Association. Written notice of the amount of an assessment, regular or special, shall be sent to each Owner, and the due date for the payment of same shall be set forth in said notice. Regular assessments shall generally provide for maintenance, repair and replacement of the paved aisles, traffic ways, parking spaces, parking structure (if constructed) and landscaping, insurance costs and expenses of administering the Association. Section 4. Special Assessments for Capital Improvements. In addition to the annual assessments 22. ...'<•• 1485 au'-Viorized above, the Association may levy, in any assessmer*- year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Curmr.on Area, including fixtures and personal property relatad thereto, provided that the Board of Directors shall obtain the aspent of fifty-one percent (51%) of the votes of members who are voting in person or by proxy. The vote shall be taken at a meeting duly called for this purpose, written notice of which shall be sent to all Owners not less than thirty (30) days nor more than sixty (60) days in advance of the meeting setting forth the purpose ol the meeting. Section 5. Special Assessments Against Lot Owner. The Board of Directors shall levy a special assessment against any Owner for and in the amount of any costs or expenses of the Association incurred or anticipated to be incurred as a result of the acts or failure or refusal to act or otherwise comply with the provisions of this Declara- tion by said Owner or any person holding under him or incur- red in connection with the repair and restoration of any damage to the Common Area or any improvements locat-.- thereon caused by said Owner or any person holding under him and said Owner's tenants, sublessees and business invitees. Section 6. Notice and Quorum for any Action Authorized Under Sections 3 and •}, Written notice of any 23. >s" I486 meeting called for the purpose of taking any action authorized under Section 3 or 4 shall be sent to all members not less than 30 days nor more than 20 days i,i advance of the meeting. At the first such meeting calJed, the presence of members or of proxl.es entitled to cast fifty-one percent (51%) of the total voting power of the Association shall constitute a quorum. If the required quorum is not present, another meeting may be called for a date not less than ten (10) days after the date of the original meeting but in any event within thirty (30) days of the date of the original meeting subject to the same notice requirement, and the required quorum at the subsequent meetinci shaJ 1 be twenty-five percent (25%) of the total voting power of the Association. Section 7. Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots. Save and except those special assess- ments described in Section 5 hereof, annual and special assessments may be collected on a monthly basis. Section 8. Date of Commencement of Annual Assessments; Due Dates. The annual assessments provided for herein shall commence as to all Lots on the first day of the month following the date of closing of the first sale of a Lot to a purchaser. Such date may be extended by the Hoard of Directors by majority vote to a time not later than two (2) months following the completion of all improvements. 24. H r\ •».c t excepting the parking structure, and all landscaping within th Common Area if Declarant by written agreement with the Association agrees to maintain the Common Area until such extended date. The first annual assessment shalJ be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject-, thereto. Said assessments shall be paid on a monthly basis in advance on the first day of each month, commencing on the first day of the month following the recording of title to each Owner's Lot, or the yrantin^ of possession thereof to him, whichever event shall first occur. Declarant, or its succeesor in interest, shall be obligated to pay the monthly maintenance charges for each unsold Lot. Meintenance charges so collected shall be promptly deposited in a commercial bank account and/or in a savings and loan account in an institution to be selected by the Board, and prior to its election, by Declarant, or by the Manager appointed by the Board, if any. Said account shall be clearly designed: "The Graham Business Plaza Property Owners Association Maintenance Fund Account." Subsequent to its election, the Board, or Manager, as the case may be, shall have exclusive control of said account, and shall be responsible to the Owners for the maintenance 25. of accurate records thereof at all times. U'o withdrawal shall .e made from said account except to pay the charges and expenses for the common benefit of all the Owners as specified in this Article IV. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments on ^ lot is binding upon the Association as of the date of its issuance. Section 9. Effect of Nonpayment of Assessments; Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of ten percent (10%) per annum. Any assessment not paid within thirty (30) days of its due date shall also bear a late charge of five percent (5%) should the Association adopt a uniform policy of assessing such late charge. The Association may bring an action at law fgainst the Owner personally obligated to pay the same, or foreclose the lien against the Lot. No owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot. More specifically the remedies of the Association and the rights of the Owners of the subject Lots in relation thereto are as follows: 26. (aj In the event of defau.lt by any Owner in the payment of a monthly installment of the assessment, such amount as may be in default, together with interest thereon at the rate of ten porcert (10%) per annum together with late charges, ix applicable, and all costs which may be incurred by the Board of Manager in the collection of such charges, including reasonable attorneys' fees, shall be and become a lien upon the interest of tha defaulting Owner in the project upon the execution by the Board or the Manager and tht recording in the San Diego County Recorder's Office of a Notice of Assessment, as provided in Section 1356 of the Civil Code of California. The Notice oi Assessment shall not be filed for record, unless and until the Board, or a person designated by them, shall have delivered by registered mail return receipt required to said defaulting Owner, not less than fifteen (Jj) days prior to the recordation of such Notice of Assessment, a written notice of default and a demand upon the defaulting owner to cure same within said fifteen (15) days, and the failure of the defaulting Owner to comply, (b) Not less than ten (10) days, nor more than thirty (30) days from the filing of said Notice of Assessment, the Board, or a person designated by them, shall file for record a Notice of Default, and 27. theret-.fter may cause the interest of said defaulting Owner to be "old in the same manner as a sale under the power contained in mortgages and deeds of trust as provided by the Civil Code of the State of California, Section 2924, et seq., or through judicial foreclosure. The sale of paid interest in the project must, be held, or legal action to enforce a lien must be instituted, within one (1) year from the recording of the Notice of Default, or said lien shall be deemed void and of no effect. If in faut any such sale is held, the Association, any Owner or Owners, or any lender, may purchase thereat. If any legal action is filed as aforesaid to enforce the provisions of this Section, any judgment rendered against the defaulting Owner shall include all costs and expenses of such action, and all costs and expenses of perfecting said lien and of said sale, and reasonable attorneys' fees incurred in prosecuting said action. If any such lien is cured prior to sale or prior to judgment of judicial foreclosure, the Board shall cause to be recorded a certificate setting forth the satisfaction of such claim and release of such lien, upon payment of actual expenses incurred and a reasonable attorneys' fee, by such defaulting Owner. (c) Each Owner does hereby waive, to the extent of any liens created pursuant to this Article, 28. the benefit of any exemption laws o*. the State of ''.-.lifornia in effect at the time any installment of any assessment is due or lien imposed. (d) Any Owner who sells his Lot in good faith and for value with the consent of tiie mortgagee srhall be relieved of the obligation to pay maintenance charges accruing from and after the date of recordation of the deed to his purchaser, and such obligation shall thereupon pass to said purchaser; provided, however, that such Owner shall be and remain personally liable for any maintenance charges due and unpaid as of the date of recordation of said deed. (e) In addition to the right of such lien, the remaining Owners, or any of them, or any member of the Board of Directors acting on behalf of all the Owners, shall be entitled to bring any legal or equitable action ayainst any Owner who shall breach or who shall be in default in the performance of any of the covenants and restrictions herein contained including, but not limited to, the covenant to pay said maintenance charges. Any judgment rendered against any such defaulting Owner may include a reasona.jj.e attorneys' fee to be fixed by the court. (f) Subsequent to the organization meeting, Declarant shall be obligated to pay to the Board the 29. •> 149£ monthly assessments =s hereinbefore provided, for each unsold Lot. Section 10. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. No breach of the covenants and restrictions created by this instrument shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value, but all of said covenants and restrictions shall be binding upon and effective against any owner whose title is derived through foreclosure or trustee's sale, or through a deed given in lieu thereof. No auch owner so deriving title shall be responsible for any obligations accruing hereunder prior to the time such owner acquired title. 30. ARTICLE V ARCHITECTURAL CONTROL Section 1. General Restriction. No building, fence, wall or other structure shall be commenced, erected or maintained upon the Properties/ including but not limited to mail boxes, signs, kiosks, banches, lights or similar structures, nor shall any exterior addition to or change or alteration therein be made including any change whatsoever in exterior color nor shall any interior improvements or decorations which are readily visible from the exterior of the building be constructed or installed until the plans and specifications showing the nature, kind, shape, height, materials, exterior colors and location 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 .^jgraphy ^y the Board of Directors of the Association, or by an architectural committee. Saiu submittal shall include complete and detailed plans and specifications, color scheme, grading plan, and plot plan showing the location of such structure with reference to streets, lot lines and structures on adjacent Lots, No trees, bushes, shrubs or plants shall be planted or removed until the plans and specifications for the species and placement or removal of any such trees, bushes, shrubs or plants have been submitted to, and approved in writing by, the architectural committee. Said plans as submitted shall 31. •."'"'• 1494 show in detail the proposed elevations and locations of aaid trees, hushes, shrubs and plants, including the location and elevation of same in relation to all other Parcels subject to these restrictions. Said architectural committee shall be composed of not less than three (3) or more than five (5) representatives, which representatives and their successors shall be appointed by Declarant and serve at the pleasure of Declarant or its duly authorized agent or successor for so long 33 Declarant either owns a Lot or has a security interest in a Lot. Thereafter the architectural committee shall be appointed by the Lot Owners to serve at the pleasure of the Board. Upon termination of a representa- tive's service by reason of death, resignation, removal or for any other reason, either Declarant or its agent or successor during the period within which Declarant has the right to appoint the Board, or the Board of Directors thereafter shall appoint a successor. All members appointed by the Board of Directors shall be Lot Owners. Members appointed by Declarant need not be Lot Owners. Section 2. Standards of approval. Approval by the Board of Directors or architectural committee (hereafter collectively "committee") of the erection, construction, installation, replacement or alteration of any structures may be withheld because the same might, in the judgment of said committee, cause or result in a violation of the covenants contained in this Declaration or because of the 32. reasonable dissatisfaction ot said committee with the grading plan, location of the structure, color scheme, finish, design, proportions, architecture, shape, height, style or appropriateness of the proposed structure or altered structure, materials proposed to be used '-.herein, kind, pitch or type of roof proposed to be placed therec.i,- or because of it; reasonable dissatisfaction with any or all other matters or things which, in the reasonable judgment of said committee, would render the proposed structure inharmonious or out of keeping with the general plan for the uniform subdivision, improvement and use of the Properties. Section 3. Conditions of Approval. The c^iuait .^e may require as a condition to its approval that (i) the proposed erection, construction, installation, replacement or alteration be completed within a reasonable period of time from the date of said committee's approval; (ii) that the applicant comply with reasonable procedural rules promulgated by the committee; (iii) that the applicant pay a fee not to exceed two hundred fifty dollars ($250) with the submission of plans; and (iv) that the applicant deposit with the Association such reasonable sum as may be determined by said committee to cover any cost or expense incurred by the Association for such repair to or maintenance of Common Areas as might be required as a result of the acts undertaken by the applicant pursuant to said committee's approval. Any portion of said deposit not 33. required for such repair or maintenance shall be refunded to the applicant upon the issuance of the certificate pursuant to Section 8 of this Article V. Nothing herein shalj limit the right of the Association to assess or reco"?r from any applicant in accordance with Saction 5 of Article IV hereof any costs or expenses in excess of the amount1 of <auch applicant's deposit. Section 4. Notice of Disapproval. If the committee shall disapprove of any plans and specifications, color scheme, plot plan or grading plan .vubmitted for approval, it shall send notice of its disapproval to the person or persons applying for said approval at the addren set forth in the application therefor within forty-five (45) days from the date said plans and specifications, color scheme, plot plan and grading plan are presented to said committee. If notice of disapproval is not so sent, the plans and specifications, color scheme., plot plan or grading plan submitted shall be deemed to have been approved by said committee in accordance with the provisions of this Article V. Section 5. No Waiver. The approval of the Architectural Committee of any plans or specifications, color scheme, plot plan or grading plan submitted for approval for use on any particular lot shall not be deemed to be a waiver by said committee of its right to object to any of the features or elements embodied therein if and when 34. 149? the same features or elements are embodied in any atibsevjucr.t plans and specifications, color scheme, pint pi .in or grading plan submitted for approval witu respect to any other part or parcel of said properties. Section 6. Conformance with Plans and Specifications. No building or other structure for which any plans and specifications, color scheme, plot plan or grading plan have been approved by the committee shall be orected, constructed, installed, replaced or altered except in strict conformance with said pl;;ns and specifics '-ions, color scheme, plot plan and grading plan, such conditions and requirements as said committee nay imposa in connection with its approval of such building or structure. Any deviation from said plans and specifications, color scheme, plot plan or grading plan in such erection, construction, installation, replacement, or alteration shall nullify the approval of said committee requix-ed by this Article V and shall be deemed to have been undertaken without said committee's approval or consent. Section 7. Certificate. After the completion of the erection, construction, installation, placement or alteration of any building or other structure in accordance with the provisions of this Article, this committee shall, upon application of the owner of said building or structure, or his agent or representative, issue a certificate that said building or structure has been so completed in 35. conformance with the requirements set forth in this Article V, if a majority of said committee determines such to be the fact. Section 8. Purchasers and Encumbrances. With respect to purchasers and encumbrances ii, good faith and for • alue, unless notice of noncompletion or nonconformancs identifying the Lot and the Owner and specifying the. reason for the notice, executed by the committee, shall be filed in the Office of the County Recorder of San Diego County, California, and given to such Owner within thirty (30; days of the expiration of the time limitation described in Section 5 above, or unless legal proceedings shall have been instituted to enforce compliance or completion within s^id thirty (30) day period, the completed improvements sh^.ll be deemed to be in compliance with plans and specifications approved by the committee, but only with respect to purchasers a.id encumbrances in good faith and for vrlue. Section 9. Disclaimer of Liability. Neither the Architectural Committee, the members thereof, the Association, Owners, the Board of Directors shall be respon- sible for any defect in, or noncompliance with any governmental law, rule or regulation of, any building or other structure erected, constructed, installed placed, altered or maintained in accordance with or pursuant to any plans and specifications, color scheme, plot plan or grading plan approved by said committee or any conditions or 36. 1499 requirements, that said committee may have imposed with respect th< reto. Section 10. Expenses. Reasonable expenses incurred by the Architectural Committee in carrying out its functions in accordance with this Declaration shall be reimbursed '. >y the Association. ARTICLE VI USE RESTRICTIONS Section 1. Insurance Matters. Nothing shall be done or kept on or in any Common Area which will increase the rate of insurance on any Common Area without the approval of the Association. No Owner shall permit anything to be done or kept on or in any Common Area rfhich will result in the cancellation of insurance on any Common Area or which would be in violation of any law. Section 2. Signs. No sign of any kind shall be displayed to the public view on or from any Lot or any Common Area/ without the approval of the Association, except such sign? as may be used by the Declarant in connection with the development of the project and the sale of lots, and except such signs as may be displayed in accordance with Section 712 of the California Civil Code. Signs erected, displayed end used by Declarant, in connection with the development of the project shall not be displayed on Common Areas that interfere with the reasonable use of the Common Areas. 37. •.»"• 1GOC Section 3. Use. Each Lot shall be used oiiJ.y for the purpose of business, administrative and professional offices and uses incidental thereto, and any other use shall be only conducted with the express written consent of Declarant during the period that Declarant holds at least a security interest in any portion of the Property or with express written consent of the Association therefor. Section 4. Structural Changes. Nothing shall be done in, or on any Lot or in, on, or to any building in any Common Area or which would structurally change any Si.?ch building except as ia otherwise provided herein. Section 5. Additions and Removals. There shall be no structural alteration, addition, construction or removal of any building in the project without tbe approval of the architectural control committee as set forth in Article V hereof. Section 6. Parking. No vehicle shall be repaired or rebuilt nor shall any Owner park, for longer than one business uay, any truck, trailer, boat, camper or other commercial or recreational vehicles on the Common Area or any street or driveway within the Common Area unless approved in writing by the Association. The Association may enforce this provision by the towing and impound of vehicles at the vehicle owner's expense. 38. 1501 Section^?. Illegal Activities. No illegal activities ' r any activity which shall create a nuisance shall be carried on upon the properties. Section 8. Prohibited Activities. Thera will be no oil-drilling, oil development, oil refining, quarrying or mining operations of any kind permitted upon or in any Lot, nor shall oil wells, tanks, tunnels, minc-r.! excavations or shafts be permitted in or on any Lot above a plane lying five hundred feet (500') below the surface thereof. No derrick, or other structure, designed for use in boring, mining or quarrying for water, oil, or natural gas, or precious minerals shall be erected, maintained or permitted upon the Properties. No noxious or offensive trade or activity shall be carried on upon any Lot, nor shu1.! anything be done thereon which may be, or may become an annoyance or nuisance to the neighborhood or interfere with the quiet enjoyment of each of the other Owners of Lots. Section 9. Trash Removal. Trash, garbage or other waste shall not be kept except in clean and sanitary containers behind barriers which prevents the view of same at grade from any other Lot or the Common Areas. The color, design and method of construction of said barriers shall be designated by the Board of Directors. Section 10. Antennas. No radio or television receiving or transmitting antennae or other apparatus, save and except the satellite dish described at Section 6 of 39, ••••'• 1502 Article I hereof, shall be installed on any external portion of any building or in any part of the Common Area without the prior written approval of the architectural control committee. Section 11. Maintenance. Exteriors of Buildings, and any portion of a Lot not improved with a Building shall be maintained by the Owner in a clean, debris-free, well-kept and attractive fashion. Section 12. Interescs Appurtenant. Eaoh Lot together with the rights and interests appurtenant thereto conveyed by Declarant to any Owner thereof shall be held, conveyed and treated as a unit, and no conveyance, assignment, transfer, lease or hypothecation thereof shall be effected which shall attempt to sever fee iitle to the Lot from the rights and interests appurtenant thereto and any attempt to sever same shall be null and void. Notwith- standing the foregoing with appropriate governmental approval any Lot when improved with a building may be divided by Condominium Map in which event the property owner's association created incident thereto shall exercise all rights and assume all obligations of a Lot Owner as provided by the Declaration. Section 13. Mobile Homes, Travel Trailers and Recreational Vehicles. No Owner shall place or cause to be placed on any Lot, any mobile home, travel trailer or 40. isc; recreational vehicle, except necessary fie.1^ offices during ' .ie period of construction of improvements on said Lot. Section 14. Restoration. In the event any Build- ing on any Lot is damaged or destroyed, the Owner shall forthwith commence and diligently pxosecuce to completion t'le repair or reconstruction of such Building in accordance with the original plans and specifications utilized in the construction of said Building or in accordance with such other design or plan which may be approved in writing by the Architectural Committee. ARTICLE_yiI DRAINAGE COURSES/OTHER EASEMENTS Section 1. Access Easerc.ent. Each Owner of a Lot grants an easement for himself., his heirs, assigns, or suc- cessors in interest that he will permit free access by Owners of adjacent, or adjoining Lots or by duly authorized representativos of the Association to slopes or drair.ageways located on his property which affect said adjacent or adjoining Lots, when such access is essential for the maintenance or permanent stabilization of said slopes, or maintenance of drainage facilities for the protection and use of properties other than the Lot on which the slope or drainageway is located. Section 2. Drainage Pattern/Drainage Systems. Each Owner of a Lot agrees and covenants for himself and his 41. •>• 1504 assigns that he will not in any way interfere with the established drainage pattern over his Lot, from adjoining or other Lots in said Properties nor will he in any way interfere with the drainage systems constructed with:... his Lot and the Common Area, and that he will make adequate provisions for proper drainage in the event it is necessary to change the established drainage pattern over his Lot. For the purpose hereof, "established drainage" is defined as the drainage pattern and the drainage system which existed at the time grading, including the landscaping, if any, of each r.ot in said tract was completed. Section 3. Sheetflow Easements. Each Owner of a Lot in said tract agrees and covenants tor himself and his assigns that he will accept sheetrlow water runotf from adjoining or other Lots in said tract and from properties adjoining said tract. ARTICLE VIII GENERAL PROVISIONS Section 1. Creation of Standards of Maintenance by Association. The Association shall have the right to establish standards of maintenance to be adhered to by the Owners of Properties. Such standards of maintenance shall be established by a vote of a quorum as provided for in the establishment of special assessments for capital improve- ments. 42. ..-'^ 1505 Section 2. Duties of Own^.r. After the establish- ment of standards of maintenance by the Association in con- formity with the procedures for the establishment of a special assessment, the Owner shall be eiuigated to auhero to the standards of maintenance established by the Associa- tion. Section 3. '"otice of. Non-complianue and Enforce- ment. In the event an Owner of any Lot in the Properties shall fail to maintain the premises and the improvements situated thereon in a manner satisfactory to the Board of Directors, the Association, in addition to such other rights and remedies it may have, after approval of two-thirds (2/3) vote of the Board of Directors, shall have the right, through its agents and employees, to enter upon said parcel and to repair, maintain, and restore the Lot and the ex- terior of the Building and any other improvements erected thereon. The cost of such exterior maintenai.ee shall be added to and become part of the assessment to which such Lot is subject. Section 4. Limitation of Authority. The Associa- tion shall not have the right to establish standards of maintenance as to the interior of any Building located upon any Lot excepting those improvements and decorations readily visible from the exterior of the Building. The standard of maintenance is limited to reasonable standards for the maintenance of the exterior portions of Buildings 43. constructed and of yards and landscapings to bis maintained within the Lot lines so that the value of the Properties for the benefit of all Owners subject to these conditions, covenants and restrictions is maintained. Any co"ts and expenses incurred by the Association in curing any default of an Owner hereunder may be charged by special assessment against said Owner in accordant with the provisions of Section 5 of Article IV of this Declaration. Section 5. Enforcement. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equicy, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Asso- ciation or by any Owner to enforce any covenant or restric- tion herein contained shall in no event be deemed a waiver of the right to do so thereafter. For so long as the Properties lie within the boundaries of the incorporated City of Carlsbad ("City"), the City upon thirty (30) days' prior written notice to the Association may elect to eniorce certain provisions of this Declaration and arrogate unto itself the Association's right to enforce certain provisions of this Declaration if, in the reasonable exercise of the City's discretion, the Association after reasonable notice and demand by City has failed to adequately enforce the hereinafter described provisions of this Declaration. In such event all assessment and J.ien rights provided ! 44. •>" 150? Association pursuant to the provisions of Article IV hereof shall also b<- exercisable by City. The provisions of this Declaration which may be enforced by City are as follows: (a) Article III, Section 4 (a) regarding reconstruction in the event of casualty. (b) Article III, Section 5(b)(l) regarding maintenance, operation and repair of the Common Area. (c) Article III, Section 5(e) regarding right to enforce rules and regulations; the City's discretions in this regard facing limited to enforcement of such of the rules and regulations the breach of which threatens the health, safety or welfare of residents or in any fashion restricts access to the property in the manner contemplated by this Declaration or Tract Man 83-10 or which breach would result in a nuisance. Section 6. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no manner affect any other provisions which shall remain in full force and effect. Section 7. Amendment. The covenants and restric- tions of this Declaration shall run with and bind the land, for a term of forty (40) years from the date this Declaration is recorded, after which time they shall be automatically terminate without notice, provided, however that the easements for ingress, egress and utilities shall 45. remain unaffected unless the City of Carlsbad has prior thereto recorded i1 j consent to the extinguishment of said easements. The covenants, conditions and restrictions shall be extended for successive periods of ten years upon the vote of a majority of the voting power of the Association. Tuis Declaration ma.,' be amended by an instrument signed by Declarant or Declarant's successors in interest when Declarant is Owner of at least two (2) Lots and thereafter by not less than seventy-five percent (75%) of the votes of Owners; provided, however, that no such amendment which affects any material change in the Owner's rights and easements for ingress, egress and utilities over the Common Area shall be effective so long as any property subject to this Declaration lies within the boundaries of the City of Carlsbad until such amendment is approved in writing by the City Council of the City of Carlsbad, and further provided that the vote required to amend any provision of this in- strument which relates to the number of votes required to take some affirmative action shall not be less than the number of votes required under said provision to take such action. Any amendment must be recorded. Section 8. Annexation. Additional property and Common Area may be annexed to the Properties with the consent of two-thirds (2/3) of the vote of the Owners. Section 9. Rules and Regulations. (a) The Board of Directors may, from time to 46. time, establish, supplement, amend o^ revoke reasonable rules and regulations governing or restricting: (1> the use of the Common Areas, including streets, the easement for ingre.5<5 and egress, and may upon majority vote designate some or all of the parking spaces for the exclusive uue of the Owner of a particular Lot and his tenants, svKlessces, the employees of same and his business invitees, providing that said designation is not violative of any ordinance, rule or regulation of any relevant governmental authority regarding required parking for any of the Buildings on the Lots, or (2) any activity, conduct, condition or thing located in or upon any Lot, if deemed reasonably necessary or desirable bo the peace, health, comfort, safety, protection or general welfare of the Owners. (b) Without limiting the generality of para- graph (a) of this Section 9, such rules and regulations may pertain to, among other things in the case of the streets, the time, manner and location for the parking of vehicles; the maximum speeds for vehicular traffic; and the time or times when commercial vehicles may be permitted to use the streets. (c) Such rule£ and regulations shall be effective and binding to the same extent and effect as if set forth in this Declaration when a copy of said rules and regulations as adopted, amended or repealed, certified by 47. the Secretary of the Association is mailed or delivered to each Owner. (d) The Association may enforce the prova- sions of this Section 9 and any rule or regulation ;.-romul- gated pursuant to same, or remeJy any breach thereof, by any lawful means and proceedings, including but not }imited to private or judicial abatement, injunction and damages. All expenses thusly incurred by the Association, including all attorneys' fees in the event that judicial proceedings are successful, shall be assessed to and paid by the defaulting Owner as a special assessment under the provisions of Sec- tion 5 of Article IV. In addition to all other remedies which the Association may have, the Association shall have the rights provided for in paragraph (e) of Section 5 of Article III hereof to enforce the provisions of this Sec- tion 9 or any of said rules and regulations. * 48. 1511 IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto set its hand and seal this J.O'M day of tfcJoku 1983. GRAHAM BUSINESS PLAZA, A California Limited Partnership By: GRAHAM INTERNATIONAL, INC., Its General Partner . Colombo , Vicereaident By_ R . GrecpiEy Bri<d01and Assistant Secretary 49. STATE OF CALIFORNIA COUNTY OF \CJf9K2j X^/SSO On (- /Q7CV5Eft«3O» 1983, before me, the under- signed, a Notary Public in and for said State, personally appeared CARL J. COLOMBO, known to me (or proved to me or. the basis of satisfactory evidence) to be the Vice-President, and R. GREGORY BRIDGLANU, known to me (or proved to me on the basis of satisfactory evidence) to be the Assistant Secretary of Graham International, Inc., the corporation that executed the within instrument ancl known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument or. behalf of said corporation, said corporation being known to me (ox proved to me on the basis of satisfactory evidence) to be the General Partner of Graham Business Plaza, 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 thf> same. WITNESS my hand and official seal. OFFICIAL SEAk " ' •""•'' '•MVIN ~'JV' ' 'nuc - c" ';:O"NSAN DIIGO co"Nrv "y A NotaryPt 'Jf.'i'/'fl t!0*'-SV PU?! 1C - CWQ'JN'A '', .:'Wf '•"> mTI <•""•••" _ _ :• OFFICIAL SEALn">MA I VMM NOTADY PUOI.IC - t OFFICIAL SEAL ni/VNA iVNN CA'VIN NOTARY PUtlt-ir - CALIFORNIA SAN OFM) C""NTY , My comm. uplm SF.P 17. 1385J 50. I • Kscjcitffi HtQutmo v> (MI ituoii mu to. RECORDING REQUESTED BY: GRAHAM BUSINESS PLAZA 2121 Palomar Airport Road, Suite 300 Carlsbad, California 92008WHEN RECORDED MAIL TO: GRAHAM BUSINESS PLAZA 2121 Palomar Airport Road, Suite 300 Carlsbad, California 92008 -OS' '•"' 164i 83-408558 (" RECORDED IN~~~1 OFFICIAL RECORDSI OF SAN DIEGO COUNTV. C.l. I 1983 NOV 1 0 AM3:00 L VERA L. LYLE I COUNTY RECORDf,} (Space Above~~tFis Line for Recorder's|- : -/-;. \^f'Use) FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, LIMITATIONS AND RESERVATIONS GRAHAM BUSINESS PLAZA This First Amendment to Declaration of Covenants, Conditions, Restrictions, Limitations and Reservations is made on this 7# day or November, 1983 by GRAHAM BUSINESS PLAZA, a California Limited Partnership, hereinafter referred to as "Declarant". RECITALS WHEREAS, Declarant did make and execute that certain Declaration of Covenants, Conditions, Restrictions, Limitations and Reservations and recorded same on October 21, 1983 in File-Page No. 83-380388 of Official Records, County of San Diego, state of California, which instrument is hereinafter referred to as "Declaration"; WHEREAS, Declarant, pursuant to the provisions of Section 7 of Article VTH of the Declaration, reserved unto itself the power to amend said Declaration during the period in which Declarant or Declarant's successors in interest owned at least two (2) Lots as defined in said Declaration; WHEREAS, Declarant owns all of said Lots and thus has the power to amend and modify said Declaration; NOW, THEREFORE, Declarant hereby declares that all of the following described real property and the interest in each and every lot and parcel thereof shall be owned, held, sold, used, occupied, conveyed, rented, hypothecated, maintained, altered and iinproved subject to the easements, restrictions, covenants, conditions, limitations and reservations established by the Declaration as amended hereby which are established pursuant to a common plan for the uniform subdivision, improvement and use of the real property and each lot and real parcel which are for the purpose of protecting the value, desirability, and attractiveness of, and which shall run with the title to the real property and each lot and parcel thereof and be bindir.7 on all parties having any right, title or interest in the described properties, or any part thereof, their heirs, successors and assigns and shall inure to the mutual and separate benefit of each owner's interest in the real property, and each lot and parcel thereof. 1. The first paragraph of the recitals contained in the Declaration is hereby amended to read as follows: "WHEREAS, Declarant is the owner of certain property in the County of San Diego, State of California, which is more particularly described as: Lots 1, 2, 3, 4, 5 and 6, of Carlsbad Tract 33-10 in the City of Carlsbad, County of San Diego, according to Map thereof No. 10738 Filed in the Office of the County Recorder of San Diego County on October 17, 1983." 2r Section 7 of Article I is hereby amended in its entirety to read as follows: "Section 7. "Lot" shall mean and refer to any plot of land shown upon any recorded subdivision map of the Properties as a numbered Lot excluding, however, Lot 6." 3. Section 7 of Article VIII is amended by adding thereto the following: "No amendment of the terms and provisions of the Declaration shall be effective during the period that any Lot is encumbered by a mortgage or deed of tri'st unless the holders of sixty percent (60%) of the mortgages, or deeds of trust which constitute a first lien on the Lot(s), consent in writing to such amendment." S-fl 2. 3. Except as modified and supplemented hereby, that certain Declaration of Covenants, Conditions, Restrictions Limitations and Reservations for Graham Business Plaza recorded October 21, 1983 at File-Page 83-380388 of Official Records, San Diego County, State of California, shall remain in full force and effect. IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto set its hand and seal on the date first above written. GRAHAM BUSINESS PLAZA, A California Limited Partnership By: GRAHAM INTERNATIONAL, INC Its General Partner STATE OF CALIFORNIA COUNTY OF On November J~L_' 1933, before mo, the undersigned, a rjotary Public in and for said State, personally appeared L./9/Sx. yjT. L rVQ/TX-JO __ known to me or proved to me on the basis of satisfactory" evidence io be the yj CE r^E^^/CXrjyT >and /?. <3C£Q3QV/3q;OWy.X3 ____ , known to me or proved.to me on theto /-7 ____ sis of satisfactory evidence to be the Graham International, Inc., the corporation that executed the within instrument and kno.-.-n to me or proved to me on the basis of satisfactory evidence to be the persons who executed the within instrument on behalf of said corporation, said corporation being known to me or proved to me on the basis of satisfactory evidence to be the General Partner of Graham Business Plaza, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the j,ame as such partner and that such partnership executed the same. WITNESS my hand and official seal. •'', s«« OFFICIAL SF./ 1 /'"Tfl^ DIANA LYNN GAIVIN>t ay.'NJJOT -101MY punnc - CALIFORNIA: '•."•y.'Wvv1' CM i - — for said State •V IOC I 1997=034718 >-TIH -199? 1Gs09W RECORDED AT THE REQUEST Oft r.O 22-TUL-199? 10s09 All CHICAGO TITLE CO. " 'A* ' "\ !^* \ flFFirifiL RECORDS ^S^S^,SSSSS^^^T ™ SftH DIEGO COUNTY RECORDER'S OFFICEAND WHENRECORDED RETURN TO: - tf SRE60Ry mm mm mm { RF: ' 8,00 FEES' 16,0 7.00 Onick, Herrington & Sutclifle LLP JF[ _!. 400 Sansome Street San Francisco, California 94111 Attention: Kirsten J. Day, Esq. CV/Q3- /3 • SECOND AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, LIMITATIONS AND RESERVATIONS GRAHAM BUSINESS PLAZA This Second Amendment to Declaration of Covenants, Conditions, Restrictions, Limitations and Reservations (the "Second Amendment") is made on this /g^ay of July, 1997 by GRAHAM BUSINESS PLAZA, a California Limited Partnership, hereinafter referred to as "Declarant". This Second Amendment is made based upon the following facts and circumstances: A. Declarant did make and execute that certain Declaration of Covenants, Conditions, Restrictions, Limitations and Reservations and recorded same on October 21,1983 in File-Page No. 83-380388 of Official Records, County of San Diego, State of California, and subsequently did amend same by that certain First Amendment to Declaration of Covenants, Conditions, Restrictions, Limitations and Reservations recorded on November 10,1983 in File- Page No. 83-408558 of Official Records, County of San Diego, State of California (the "First Amendment"), which instrument, as amended, is hereinafter referred to as "Declaration"; B. Declarant owns all of said Lots and thus has the power to amend and modify said Declaration pursuant to Section 7 of Article VIJ of the Declaration; and C. Declarant desires to further amend the Declaration to provide that the Association, as currently defined in the Declaration, shall no longer participate m any matters SE3W-14392.J 1. 07/22/87 TDE 09:24 FAX 415 773 5759 OHS S F"" ' ' regarding the Declaration or enforcement thereof and the Association has agreed to acknowledge this amendment to the Declaration. NOW THEREFORE, for and in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, effective as of the date on which the Association conveys its interest in the Common Area to CB Graham International, Inc., a Delaware corporation, the Declaration shall be amended as follows: 1. Article I, Section 1 is hereby deleted in its entirety. All references to the "Association" contained in the Declaration shall be deemed to refer to the Declarant and the Declarant shall have all rights of the Associations under the Declaration. 2. Article I, Section 2 is hereby deleted in its entirety. All references to the "Board of Directors" contained in the Declaration shall be deemed to refer to the Declarant and the Declarant shall have all rights of the Board of Directors under the Declaration. 3. The first paragraph of Article I, Section 6 is hereby deleted in its entirety and replaced with the following: . "'Common Area" shall mean the real property (including the improvements thereto) which are to be used for the common use and enjoyment of the owners, and described as follows: Lot 6 of Tract 83-10 which consists of the real property contained in Tract 83-10 in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 10738, filed in the Office of die County Recorder of San Diego County on October 17, 1983, excepting therefrom those parcels designated as Lots 1 through 5 inclusive thereon, together with a non-exclusive easement over and across that portion of the property described as Lot 5 of Tract 83-10 identified on the map of said tract as said easement area for pedestrian and vehicular ingress and egress, 4. Article I, Section 6 is hereby amended to delete the first three sentences of the second paragraph thereof. 5. Article I, Section 6 is hereby amended to delete the last sentence of the last paragraph thereof in its entirety. 6. Article ffl is hereby amended to delete Sections 1 and 2 thereof in their entirety and to delete paragraphs (c) and (e) of Section 3 thereof in their entirety. SF3W-14392.2 2. 749 . 7. Article HI, Section 5 is hereby amended to delete paragraph (a) thereof in its entirety. 8. Article IH is hereby amended to delete Section 6 thereof in its entirety. 9. Article IV, Section 8 is hereby amended to delete the eighth sentence thereof referring to "The Graham Business Plaza Property Owners Association Maintenance Fund Account." 10. Article Vffl, Section 7 is hereby amended to deleted that certain paragraph added by the First Amendment as paragraph 3 thereof. IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the date first above written. GRAHAM BUSINESS PLAZA, a California Limited Partnership By: GRAHAM INTERNATIONAL, INC., Its: General Partne Acknowledged and agreed to the /^"day of July, 1997 GRAHAM BUSINESS PLAZA PROPERTY OWNERS ASSOCIATION, a non-profit corporation Bv: Its: SF3W-1439Z1 3. 750 STATE OF CALIFORNIA COUNTY OF^t? ) )ss.) 1997, before me,a notary public in and for said state, personally appeared >jt-<i4u*- £^-4^^- _ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose namefe) @ate subscribed to the within instrument and acknowledged to me that h&Jtfi^tbey executed the same in ys^fiej#heir authorized capacity(ies), and that by h&fiefc/thek signature^ on the instrument the person(s), or the entity upon behalf of which the person® acted, executed the instrument. WITNESS my hand and official seal. Signature: i MILDRED R. OSBORN COMM.* 1026847 § NotoyPUbte-California g SAN CHEGO COUNTY Comm, Ex(*« MAY 19.1998 [SPACE ABOVE FOR NOTARY SEAL OR STAMP] STATE OF CALIFORNIA COUNTY OE* ) )ss. ) 0\&-lt&jtJ- *M . jJ]uUUULiU$. a notary public personally knownin and for said state,>ersonally appeared to me (or proved to me on the basis of satisfactory evidence) to be the person(s). whose name^) ;t^W« subscribed to the within instrument and acknowledged to me that^e&he/they-executed the same ii(jjisihor/theiF authorized capacity(iea), and that by his/her/their signature(s) on the instrument the person(s),-or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature: Notary PUbBc — CafifomJa SAN DJB5O COUNTY Comm. Expires MAY 19,1998 [SPACE ABOVE FOR NOTARY SEAL OR STAMP] JUN 2 6 2M8 This is a true certified copyof the record if it bears the seal, imprinted in purple in' GREGORY J. SMITH Assessor/Recorder/Clerk San Diego County, California