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HomeMy WebLinkAboutCT 95-04; Homes for Industry; Tentative Map (CT) (4)APPROVED PLAN Recording requested by and when recorded, mail to: Hovey, Kirby, Thornton & Hahn 101 West Broadway, Suite 1100 San Diego, California 92101 -8297 Attn: M. Leslie Hovey DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR LOT 40 OF THE CARLSBAD AIRPORT CENTRE C:\MLH\HOMES\DOC\CC&RS40.1 April 8, 1996 TABLE OF CONTENTS RECITALS 1 ARTICLE 1 DEFINITIONS 1 ARTICLE 2 ESTABLISHMENT AND PURPOSE OF RESTRICTIONS 4 ARTICLE 3 PROPERTY MANAGEMENT COMMITTEE 5 ARTICLE 4 MAINTENANCE BY PROPERTY MANAGEMENT COMMITTEE 7 ARTICLE 5 COVENANT FOR PAYMENT OF ASSESSMENTS 8 ARTICLE 6 REGULATION OF OPERATIONS AND USES 11 ARTICLE 7 EASEMENTS 12 ARTICLE 8 OBLIGATIONS OF EACH OWNER 13 ARTICLE 9 NON-PAYMENT OF ASSESSMENTS 14 ARTICLE 10 MISCELLANEOUS PROVISIONS 16 C:\MLH\HOMES\DOC\CC&RS40.I l April 8, 1996 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR LOT 40 OF THE CARLSBAD AIRPORT CENTRE THIS DECLARATION is made this day of April, 1996, by HOMES FOR INDUSTRY-CARLSBAD, LIMITED LIABILITY COMPANY, a limited liability company ("Declarant"). RECITALS A. Declarant is the owner of certain real property in the City of Carlsbad, County of San Diego, State of California, more particularly described in Exhibit "A" attached hereto (the "Property"). B. A Declaration of Covenants, Conditions and Restrictions for Carlsbad Airport Centre was recorded against real property known as Carlsbad Airport Centre, of which the Property is a portion, on September 12, 1986, in the Official Records of San Diego County, California, as File No. 86-401456, as amended by that certain First Amendment to Declaration of Covenants, Conditions and Restrictions of Carlsbad Airport Centre recorded January 28, 1987 as File No. 87- 048040, and that certain Declaration of Annexation of Phase II of Carlsbad Airport Centre recorded October 30, 1990 as File No. 90-589282 (together, the "Master CC&Rs"). The Master CC&Rs cover the Property and govern certain easements and maintenance obligations and provide for the collection of assessments related thereto by the Carlsbad Airport Centre, Owners Association (the "Association"). C. Declarant deems it desirable to establish certain additional covenants, conditions, restrictions, reservations and easements, in addition to the Master CC&Rs, for the use, occupancy and enjoyment of the Property and each and every portion thereof, all for the purpose of establishing an attractive environment for those working or doing business on the Property and for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property, including any and all improvements located thereon. NOW, THEREFORE, Declarant declares as follows: ARTICLE 1 DEFINITIONS For purposes of this Declaration, the following terms shall have the following meanings: 1.1. Assessment. "Assessment" shall mean and refer to any and all of the Assessments hereinafter defined: C:\MLH\HOMES\DOC\CC&RS40.1 April 8, 1996 1.1.1 "Regular Assessments" shall mean and refer to amounts which are to be paid by each Owner to the Property Management Committee for Common Expenses. 1.1.2 "Special Assessments" shall mean and refer to charges against a particular Owner and such Owner's Lot to reimburse the Property Management Committee for costs incurred in bringing the Owner and such Owner's Lot into compliance with the provisions of this Declaration, or any other charge designated as a Special Assessment in this Declaration, together with attorney fees and other charges payable by such Owner, pursuant to the provisions of this Declaration, plus interest thereon as provided for in this Declaration. 1.2. Building. "Building'" shall mean and refer to any structural improvement on the Property which is enclosed by exterior walls, floor and roof and is designed for human occupancy and/or the conduct of business by the Owner of such Lot or such Owner's licensees, tenants, successors or assigns. 1.3. Building Area. "Building Area" shall mean and refer to those areas shown on the Site Plan attached hereto as Exhibit "B" (as the same may be revised or enlarged by Declarant) to be utilized for the construction of Buildings and Improvements. 1.4. City. "City" shall mean and refer to the City of Carlsbad, State of California. 1.5. Common Expenses. "Common Expenses" shall mean and refer to the actual cost of: 1.5.1 Improvement, maintenance, management, operation, repair and/or replacement of all Non-Building Areas within the Property, which are or may be maintained by the Property Management Committee or its designee as provided in this Declaration, including, without limitation, all landscaped areas (other than the slopes which are maintained by the Association), all storm drain and sewer facilities, monument signs and lighting thereon, directional signs and markers, and all services, labor, materials and equipment required to accomplish same; 1.5.2 Improvement, maintenance, management, operation, repair, restriping and sweeping of the Driveways, Parking Areas, curbs and sidewalks, including, without limitation, the cost of all services, materials and equipment required to accomplish same; 1.5.3 Improvement, maintenance, management, operation, repair and/or replacement of all areas of the Property designated for outdoor dining; 1.5.4 Improvement, maintenance, management, operation, repair of the Landscape Improvements and irrigation on the Property, and the costs of electricity and water used in connection therewith; 1.5.5 Compliance with the City's requirements of the NPDES Permit; and C:\MLH\HOMES\DOC\CC&RS40.1 2 April 8, 1996 1.5.6 The costs of any other item or items designated by this Declaration, or in furtherance of the purposes of the Declaration or in the discharge of any duties or powers of the Property Management Committee. 1.6. Declarant. "Declarant" shall mean and refer to Homes For Industry- Carlsbad, Limited Liability Company, its successors and assigns. 1.7. Declaration. "Declaration" shall mean and refer to this Declaration of Covenants, Conditions and Restrictions and all further amendments thereto. 1.8. Driveways. "Driveways" shall mean and refer to the paved areas on each Lot within the Property, designed and intended for the non-exclusive use by Owners for vehicular ingress and egress. "Driveways" shall not include Parking Areas. 1.9. Governing Documents. "Governing Documents" shall mean and refer to this Declaration, the Master CC&Rs, and any other documents governing the construction, use, maintenance and repair of the Lots and the Improvements, as from time to time amended, modified or supplemented. 1.10. Government Regulations. "Government Regulations" shall mean and refer to all present and future governmental laws, statutes, codes, ordinances, rules, regulations, limitations, restrictions, permits, orders, judgments and other governmental requirements applicable to the Property. 1.11. Improvements. "Improvements" shall mean and refer to all structures and appurtenances thereto of every type and kind on an Owner's Lot, including but not limited to buildings, outbuildings, walls, retaining walls, poles, lights and lighting fixtures, and building signs (other than the monument sign). 1.12. Landscape Improvements. "Landscape Improvements" shall mean and refer to any plantings, ground cover, trees and shrubbery existing on a Lot at the date of this Declaration or thereafter installed, together with any and all underground installations, irrigation and drainage devices, systems and equipment installed in order to enable reasonable maintenance of the plantings, ground cover, trees and shrubbery. "Landscape Improvements" shall not include the landscaping on the slopes maintained by the Association pursuant to the Master CC&Rs. 1.13. Lot. "Lot" shall mean and refer to each separate legal lot within the Property. 1.14. Master Assessments. "Master Assessments" shall mean and refer to amounts which are to be paid by each Owner to the Property Management Committee as that Owner's portion of the Assessments levied against the Property by the Association pursuant to the Master CC&Rs. C:\MLH\HOMES\DOC\CC&RS40.I -> April 8, 1996 1.15. Non-Building Area. "Non-Building Area" shall mean and refer to the area on each Lot within the Property, other than Building Area and Parking Areas, designed and intended for the non-exclusive use by Owners, including Driveways, dining areas, areas of ingress and egress, sidewalks and other pedestrian ways, and landscaped areas. 1.16. NPDES Permit. "NPDES Permit" shall mean and refer to the National Pollutant Discharge Elimination System permit, as the same may from time to time be amended, modified, or supplemented, together with any and all requirements of the City with respect thereto. 1.17. Owner. "Owner" shall mean and refer to the record Owner, whether one or more Persons, of fee simple title to any Lot, including contract sellers but excluding those having such interest merely as security for the performance of an obligation. In the event that the ownership of any Building or any portion of the Property shall ever be severed from a Lot, whether by lease or by deed, the Owner(s) of the interest in the Lot and not the Building shall be deemed an Owner hereunder. If a Lot is leased, the Owner of the fee title and not the lessee of such Lot shall be deemed the Owner regardless of the term of the Lease. 1.18. Parking Areas. "Parking Areas" shall mean and refer to all areas within the Property and on each Lot designated and intended for the exclusive use of the Owner and such Owner's tenants, licensees, invitees and employees, as a parking area for passenger and business-related vehicles as such areas are from time to time configured. "Parking Areas" shall not include Driveways. 1.19. Person. "Person" shall mean and refer to any individual, partnership, corporation, trust, estate, or other legal entity. 1.20. Property. "Property" shall mean that certain property described in Exhibit "A" to this Declaration. 1.21. Property Management Committee. "Property Management Committee" shall mean and refer to the Property Management Committee established pursuant to Article 3 of this Declaration. 1.22. Restrictions. "Restrictions" shall mean and refer to the covenants, conditions, restrictions, liens, charges, rules and regulations now or hereafter established or imposed by or pursuant to this Declaration. ARTICLE 2 ESTABLISHMENT AND PURPOSE OF RESTRICTIONS 2.1. Establishment Of Restrictions. Declarant hereby declares that the Property is now held, and during the term of this Declaration shall be held, transferred, leased, subleased, assigned, maintained and occupied subject to the Restrictions herein set forth, each and all of which is and are C:\MLH\HOMES\DOC\CC&RS40.1 4 April 8, 1996 for the benefit of, shall inure to, and shall pass with the Property and each and every part or parcel thereof, and shall apply to and bind Declarant, and any Owner, lessee, sublessee or other occupier or user of the Property or any portion thereof, and the heirs, assignees, and successors in interest of Declarant, and any such Owner, lessee, sublessee, occupier, or user, in each case during the term of this Declaration. 2.2. Purpose Of Restrictions. The purpose of these Restrictions is to insure proper development and use of the Property, to protect the Owner of each Lot against such improper development and use of surrounding parcels as will depreciate the value of its parcel, to prevent the erection on the Property of structures built of improper design or materials, to encourage the erection of attractive Improvements at appropriate locations, to prevent haphazard and inharmonious Improvements, to secure and maintain proper setbacks from streets and adequate free spaces between structures, to provide for proper and sufficient care and maintenance of the Property and the Improvements and Landscape Improvements thereon, and in general to provide adequately for a high type and quality of improvement, use and maintenance of the Property in accordance with a general plan. ARTICLE 3 PROPERTY MANAGEMENT COMMITTEE 3.1. Property Management Committee. There shall be a Property Management Committee (sometimes hereinafter referred to as the "Committee") consisting at all times of three (3) persons who shall initially be appointed by the Declarant. All members of the Property Management Committee appointed by the Declarant shall be subject to removal by the Declarant at any time, with or without cause, and shall serve on the Committee until their successors are appointed or until their earlier resignation or removal. 3.2. Appointment Of Committee Members By Owners. Until the date which is one (1) year after the date Declarant closes escrow on the sale of its last Lot in the Property (the "One Year Date"), Declarant shall have the right to choose all three members of the Committee. Commencing on the One Year Date and continuing thereafter, the Owners shall have the right to elect the members of the Committee. The Committee elected by the Owners shall serve at the pleasure of the Owners or until their resignation. Declarant retains the right, at Declarant's sole discretion, to delegate the selection of the Committee members to the Owners at any time prior to the One Year Date. 3.3. Voting Rights. In all matters hereunder in which the Owners and Declarant are required or entitled to vote, each Owner (except Declarant) is entitled to one vote per Lot owned by such Owner. Declarant shall be entitled to vote two (2) votes per Lot owned by Declarant. When more than one Person holds an interest in any Lot, the vote for such Lot shall be exercised as such Persons among themselves determine, but in no event shall the number of votes allocated to each Lot exceed the votes per Lot set forth above. In all matters requiring voting under the Master C:\MLH\HOMES\DOC\CC&RS40.I -> April 8. 1996 CC&Rs, the majority vote of the Committee members shall constitute the vote for the Property under the Master CC&Rs. 3.4. Quorum Of Owners. One-half of the voting power of the Owners shall constitute a quorum at any meeting of the Owners for the transaction of business, if any, the election of members of the Property Management Committee, or a vote on a proposed amendment to this Declaration. If a quorum is present, the affirmative vote of the majority of the voting power represented at the meeting, entitled to vote and voting on any such matter, shall be the act of the Owners, unless the vote of a greater number is required by this Declaration. 3.5. Resignation And Vacancies. Any member of the Property Management Committee may resign at any time effective upon giving written notice to the Declarant, during such time as Declarant has the right to appoint said member, or upon written notice to the remaining Committee members, during such time as the Owners have the right to appoint said member. Vacancies on the Committee appointed by the Declarant shall be filled by Declarant so long as Declarant has the right to appoint members. Vacancies on the Committee appointed by the Owners, however caused, shall be filled by a vote of the Owners. Until such vacancy has been filled by the Owners, such vacancies shall be filled by a vote of the remaining members of the Committee until such time as a new member has been elected by the Owners. 3.6. Place Of Owners' Meetings. Meetings of Owners shall be held on the Property or at any place within San Diego County within close proximity to the Property as may be designated by the Owners. 3.7. Meetings Of Owners. A meeting of Owners may be called by written notice not less than ten (10) nor more than thirty (30) days before the meeting from any Owner to all Owners, provided that except in emergency situations, no Owner may call for a meeting within thirty (30) days after an actual meeting of the Owners held pursuant to notice. Such notice shall state the place, date and hour of the meeting and the general nature of the business to be transacted, and no other business may be transacted. The notice of any meeting at which members of the Committee are to be elected shall include the names of all those who are nominees at the time the notice is sent to the Owners. 3.8. Consent To Action. The transactions of any meeting of Owners, however called and noticed, are as valid as though had at a meeting duly held after regular call and notice, if a quorum is present in person, and if, either before or after the meeting, each Owner entitled to vote, not present in person, signs a written waiver of notice or a written consent to the holding of the meeting or a written approval of the minutes thereof. Attendance of an Owner or a Property Management Committee member at a meeting shall constitute a waiver of notice of and presence at such meeting. 3.9. Meetings Of The Committee. Meetings of the Committee shall be held from time to time at such times as deemed necessary by any two of the three members of the Committee in order for the Committee to properly perform its duties. All meetings of the Committee shall be held C:\MLH\HOMES\DOC\CC&RS40.1 6 Aprj| g_ ]996 at the Property. Two of the three members of the Committee must be present at a meeting to constitute a quorum. Members of the Committee may not take action by written ballot or otherwise in the absence of a meeting. At any meeting of the Committee, whether the meeting is held with two or three members, the affirmative vote of at least two of the members is necessary to approve any question or matter which is subject to action or approval. Written notice of all meetings of the Committee shall be given to all Owners not less than five (5) nor more than fifteen (15) days before the date of the meeting; provided, however, that if notice is given by mail, and the notice is not mailed by first-class registered or certified mail, the notice shall be given not less than ten (10) days before the meeting. Such notice shall state the place, date and hour of the meeting and the general nature of the business to be transacted. The Committee shall keep and maintain a written record of all actions taken by the Committee at such meetings or otherwise. 3.10. Duties Of The Committee. It shall be the duty of the Committee to perform the functions required of it by this Declaration, to file and retain minutes and other written evidence of meetings and actions by the Owners and to perform all other duties delegated to and imposed upon it by this Declaration. The Committee shall appoint a Committee Chairperson who shall have the duty and authority to carry out those functions required of him or her by this Declaration, together with the duty and authority to carry out any other functions delegated by the Committee. 3.11. Declarant As Owner. In the event Declarant shall reacquire any Lot by virtue of foreclosure or a deed in lieu of foreclosure, Declarant shall be regarded on the same basis as other Owners and shall be entitled to vote as an Owner pursuant to this Declaration. ARTICLE 4 MAINTENANCE BY PROPERTY MANAGEMENT COMMITTEE 4.1. Repair And Maintenance. Without limiting the generality of the duties of the Property Management Committee set forth herein, the Property Management Committee shall have the duty and obligation to: 4.1.1 Provide any and all necessary maintenance or replacement of the Parking Areas, Driveways, curbs and sidewalks on each Lot, in accordance with any applicable Governing Documents and Government Regulations, in a neat, orderly and safe condition and in such a manner as to preserve and enhance the appearance of the Property including, without limitation, sweeping, maintaining, repairing, repaving and restriping the Parking Areas, Driveways, curbs and sidewalks, as appropriate, on each Lot and any portion thereof; 4.1.2 Provide any and all necessary maintenance or replacement of all Landscape Improvements on each Lot as required anywhere within the Property and in accordance with any applicable Governing Documents and Government Regulations, following the initial installation of such Landscape Improvements in accordance with this Declaration, including without limitation, the trimming, watering and fertilization of all grass, ground cover, shrubs and trees, removal of dead or C:\MLH\HOMES\DOC\CC&RS40.1 ' Aprils. 1996 waste material and replacement of any dead or diseased grass, ground cover, shrubs or trees, and maintaining, repairing and replacing automatic sprinkler systems or water lines in the Property; 4.1.3 Provide any and all necessary maintenance or replacement of any monument sign(s) identifying the Property (exclusive of any sign(s) on a Building which identify a Building Owner or occupant), and directional signs in accordance with any applicable Governing Documents and Government Regulations, including maintenance of all lighting of such signs; 4.1.4 Provide any and all necessary maintenance or replacement of all storm drain facilities and sewer facilities located on the Property; 4.1.5 Payment of all electrical, water and other utility charges or fees for services furnished by or at the request of the Property Management Committee to all Non-Building Areas of the Property; 4.1.6 Maintain all easements granted in this Declaration; 4.1.7 Commencing on the date Declarant no longer owns a Lot in the Property, and continuing thereafter, ensure continued compliance by all Owners and their tenants and subtenants with the NPDES Permit (as more fully described in paragraph 6.3); and 4.1.8 Provide any and all necessary maintenance and replacement of all tables, chairs and umbrellas in the areas of the Property designated as dining areas, including providing janitorial services to such areas. 4.2. Cost Of Maintenance. The cost of all repair and maintenance performed by the Property Management Committee pursuant to this Article 4 shall be included as "Common Expenses." 4.3. Delegation. The Property Management Committee may contract with an independent contractor to perform all or any part of the duties and responsibilities of the Property Management Committee set forth herein. ARTICLE 5 COVENANT FOR PAYMENT OF ASSESSMENTS 5.1. Creation Of Lien And Personal Obligation For Assessments. Each Owner of a Lot, by acceptance of a deed or other conveyance creating in such Owner the interest required to be deemed an Owner, whether or not it shall be so expressed in any such deed or other conveyance, is deemed to covenant and agree to pay to the Property Management Committee Regular Assessments and Special Assessments, such Assessments to be fixed, established and collected from time to time as provided in this Declaration. Assessments, together with interest thereon, late charges, attorney fees and court costs, and other costs of collection thereof, as hereinafter provided, shall be a C:\MLH\HOMES\DOC\CC&RS40.1 O April 8, 1996 continuing lien upon the Lot against which each such Assessment is made. Each such Assessment, together with such interest, late charges, costs and attorney fees, shall also be the personal obligation of the Owner of such Lot at the time when the Assessment becomes due and such personal obligation to pay the Assessment shall not be terminated by a conveyance or any transfer of an Owner's interest in such Lot necessary to be deemed an Owner hereunder. The personal obligation shall not pass to the successors in title of an Owner unless expressly assumed by such successors. 5.2. Purpose Of Assessments. Assessments levied by the Property Management Committee shall be used exclusively for the purposes of promoting the health, safety and welfare of the Owners, the management of the Property, enhancing and protecting the value, desirability and attractiveness of the Property and the quality of environment within the Property, including, without limitation, payment of the Common Expenses, administering and enforcing the restrictions herein, collected and disbursing funds pursuant to this Declaration, or in furtherance of any other duty or power of the Property Management Committee. 5.3. Regular Assessments. Not later than sixty (60) days prior to the beginning of each fiscal year, the Property Management Committee shall distribute to each Owner a pro forma operating statement or budget for the upcoming fiscal year which shall, among other things, estimate the total Common Expenses to be incurred for such fiscal year. The Property Management Committee shall at that time determine the amount of the Regular Assessment to be paid by each Owner in accordance with the allocation of Assessments set forth in paragraph 5.4 below. Each Owner shall thereafter pay to the Property Management Committee its Regular Assessment in installments as established by the Property Management Committee. Each such installment shall be due and payable on the date established by the Property Management Committee in the written notice sent to Owners. In the event the Property Management Committee shall determine that the regular assessments based on the estimate of Common Expenses for the current year are, or will become, inadequate to meet all Common Expenses for any reason, it shall then immediately determine the approximate amount of such inadequacy and issue a supplemental estimate of the Common Expenses and determine the revised amount of Regular Assessment against each Owner, and the date or dates when due. 5.4. Allocation Of Assessments. For purposes of this Declaration, an Owner's share of Regular Assessments shall be calculated by multiplying any and all Common Expenses by a fraction, the numerator of which shall be the aggregate square footage of any Building(s) on such Owner's Lot, and the denominator which shall be the aggregate square footage of all the Buildings on the Property. The amount of any Special Assessments shall be calculated by the Property Management Committee in its sole and absolute, yet good faith discretion. Unless otherwise required by the Property Management Committee, all Assessments shall be payable in the amount specified above at the times set forth by the Property Management Committee pursuant to paragraph 5.3 above, without any right of offset or deduction whatsoever. 5.5. Commencement Of Assessments. Assessments shall commence on the first day of the month following the first conveyance of a Lot by Declarant to an Owner. C:\MLH\HOMES\DOC\CC&RS40.1 9 Apri| 8 ]996 5.6. Certificate Of Payment. The Property Management Committee shall, upon demand, furnish to any Owner liable for Assessments, a certificate in writing signed by the Chairperson or authorized agent of the Property Management Committee, setting forth whether the Assessments on a specified Lot have been paid, and the amount of delinquency, if any. A reasonable charge may be collected by the Property Management Committee or its authorized agent for the issuance of these certificates. 5.7. Exempt Property. All landscaped slopes of the Property maintained by the Association shall be exempt from the Assessments created herein. 5.8. Special Assessments. Special Assessments shall be levied by the Property Management Committee against a Lot to reimburse the Property Management Committee for: 5.8.1 Costs incurred in bringing an Owner and/or a Lot into compliance with the provisions of this Declaration; 5.8.2 Any other charge designated as a Special Assessment in this Declaration; 5.8.3 Attorney fees, interest, and any other charges relating thereto, as provided in this Declaration; and 5.8.4 Any extraordinary or disproportionate cost or expense incurred by the Property Management Committee in the maintenance by the Property Management Committee of the Property due to the use by an Owner or occupant, lessee, sublessee, or user in such a manner as to require such extraordinary or disproportionate cost, such as, but not by way of limitation, extraordinary or disproportionate Parking Area maintenance resulting from disproportionate truck and/or vehicle usage. In the event the Property Management Committee undertakes to provide materials or services which benefit individual Lots and which may be accepted at the election of individual Owners, such Owners, in accepting such materials or services, agree that the costs thereof shall be a Special Assessment. 5.9. Master Assessments. The Association levies Master Assessments against the Property pursuant to the Master CC&Rs. Each Owner shall, upon request therefor by the Property Management Committee, pay its share of such Master Assessments to the Property Management Committee, who shall promptly deliver same to the Association. For purposes of this paragraph, each Owner's share of the Master Assessments shall be determined in the same manner as set forth in paragraph 5.4 above. C:\MLH\HOMES\DOC\CC&RS40.1 10 April 8, 1996 ARTICLE 6 REGULATION OF OPERATIONS AND USES 6.1. Prohibited Operations And Uses. In addition to those operations prohibited by the Government Regulations or the Governing Documents, the following operations and uses shall not be permitted on the Property or any portion thereof (except if associated with approved construction of Improvements): any use which emits dust, sweepings, dirt, cinders, fumes, gases, odors, acids, steam, or other substances into the atmosphere, or discharges liquid, solid wastes, or other matter into any water reclamation area or water way, or emits intense glare or heat, or atomic electromagnetic, microwave, ultrasonic, laser, or other radiation, which, in the opinion of the Property Management Committee, is so objectionable as to constitute a nuisance, or which will not be adequately mitigated by screening, treatment, or other abation or control technologies. 6.2. Other Operations And Uses. Operations and uses which are specifically prohibited under paragraph 6.1 of this Declaration may be permitted in a specific case if written detailed operational plans and specifications therefor are submitted to and approved in writing by the Property Management Committee. Approval or disapproval of such plans and specifications shall be based upon the effect of such operations or uses on other portions of the Property or upon the occupants thereof. If the Property Management Committee fails either to approve or to disapprove such plans and specifications within thirty (30) days after the same have been submitted to it, it shall be conclusively presumed that the Property Management Committee has disapproved said plans and specifications. Notwithstanding anything contained herein to the contrary, no activity shall be allowed on any Lot if it is prohibited by the Government Regulations or the Governing Documents. 6.3. NPDES Permit. So long as Declarant owns a Lot in the Property, Declarant shall ensure compliance by each Owner and Declarant with the City's requirements of the NPDES permit. Declarant shall provide best management practices as referenced in the "California Storm Water Best Management. Practices Handbook" to reduce surface pollutants to an acceptable level prior to discharge to sensitive areas. Plans for such improvements shall be approved by the City Engineer. Said plans shall include but not be limited to notifying prospective owners and tenants of the following: 6.3.1 All Owners and tenants shall coordinate efforts to establish or work with established disposal programs to remove and properly dispose of toxic and hazardous waste products. 6.3.2 Toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood preservatives, and other such fluids shall not be discharged into any street, public or private, or into storm drain or storm water conveyance systems. Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers, and other such chemical treatments shall meet Federal, State, County and City requirements as prescribed in their respective containers. C:\MLH\HOMES\DOC\CC&RS40.1 April 8. 1996 6.3.3 Best Management Practices shall be used to eliminate or reduce surface pollutants when planning any changes to the landscaping and surface improvements. On the date Declarant no longer owns any Lots in the Property, the Property Management Committee shall assume and thereafter perform all obligations of Declarant described in this paragraph 6.3. 6.4. Signage. Each Owner shall have the right to install identification signage on the exterior fascia of the Building on its Lot, so long as such signage complies in all respects with the Governing Documents and Government Regulations, and the sign program developed by Declarant and approved by the City. ARTICLE 7 EASEMENTS 7.1. Utility Easements. The Declarant hereby reserves, to itself and its successors and assigns, together with the right to grant and transfer the same to Owners, such rights of way and easements over the Property and each Lot as may be reasonably necessary for the purpose of erecting, constructing, repairing, maintaining, replacing and operating utility services over, across, under and through the Property, including without limitation wires, poles, pipes and conduits for lighting, power, television, telephone and other communication facilities, gas, water, storm sewers, storm drains, sanitary sewers, and other utility lines. The Declarant shall have the right to grant rights of way or easements over the Property to others to carry out the foregoing purposes; provided, however, that such rights of way or easements shall not materially interfere with the use, or intended use, and enjoyment of, or access to, the Property and each Lot by the Owner thereof. Upon the laying, repair, maintenance, or replacement of any such lines, wires, pipes, conduits, or sewers, the Property shall be restored, by the holder of the dominant tenement at its sole expense, to the same condition it was in prior to the performance of such work. 7.2. Performance And Discharge Of Rights And Duties. The Declarant hereby reserves for itself, its designees, the Property Management Committee and its agents, a non-exclusive easement for ingress and egress over the Property and each Lot for the purpose of permitting the Property Management Committee, the Declarant, their designees and agents, to discharge their rights and obligations as described in this Declaration. 7.3. Support. Settlement And Encroachment. Declarant hereby reserves to itself and its successors and assigns, together with the right to grant and transfer the same to each of the Owners, an easement for the benefit of, and appurtenant to each Owner's Lot and burdening each contiguous Lot, for the purpose of: 7.3.1 Support and accommodation of the natural settlement of structures; C:\MLH\HOMES\DOC\CC&RS40.1 12 Aprils. 1996 7.3.2 Encroachment by reason of a roof, eave overhang, or similar projections created during the original construction of the Property, if any, or the reconstruction or repair of a Building or Improvements on the Property in accordance with approved plans and specifications; and 7.3.3 Encroachments due to original engineering or surveying errors, errors in original construction, errors in reconstruction or repair in accordance with approved plans and specifications. 7.4. Easement For Ingress. Egress And Traffic Circulation. Declarant hereby reserves to itself, and its successors and assigns, together with the right to grant and transfer the same to each of the Owners, non-exclusive easements of ingress and egress over and upon the Driveways on each Lot and any other designated traffic circulation patterns established by Declarant from time to time upon the Property, for the sole purposes of vehicular and pedestrian ingress, egress, and traffic circulation to and throughout the Property and ingress and egress and access to the Parking Area located on each Lot in the Property. 7.5. Exclusive Use. Notwithstanding any provision of this Declaration to the contrary, each Owner, and each Owner's lessees, sublessees, customers, licensees, invitees and employees shall be allowed to park only on the Parking Area located on such Owner's Lot, and each Owner shall have the right to eject or cause the ejection from the Parking Area on its Lot, of any person not authorized, empowered, or privileged to use the Parking Area on such Lot. 7.6. Easements For Access To Trash Enclosures And Dining Areas. Declarant hereby reserves for itself, and its successors and assigns, together with the right to grant and transfer the same to each of the Owners, non-exclusive easements of ingress and egress over and upon the Non- Building Area of each Lot for the purpose of pedestrian and vehicular (where appropriate) traffic to and from the trash enclosures and the outdoor dining areas located on the Property. ARTICLE 8 OBLIGATIONS OF EACH OWNER 8.1. Maintenance And Repair Of Lots. All Improvements on each Lot shall at all times be constructed, kept, maintained and repaired by the Owner of such Lot in first-class condition, repair and appearance in accordance with the provisions of this Declaration, the Governing Documents and the Government Regulations. The Owner of each Lot shall at all times comply, at its own expense, with all applicable governmental, health, fire and safety ordinances, regulations, requirements and directives, applicable to the Property. All repairs, alterations, replacements, or additions to Improvements, including Landscape Improvements, shall be at least equal to the original work in class and quality. 8.2. Refuse Collection. All outdoor refuse collection areas located on the Property shall be designed in accordance with City standards, and shall be completely enclosed and screened by CAMLH\HOMES\DOC\CC&RS40.1 13 April 8, 1996 a constructed wall of durable material six (6) feet in height. Additionally, all such areas shall have concrete floors and shall be sufficient in size to contain all refuse generated on each Lot. 8.3. Insurance. Each Owner shall procure and maintain in full force and effect during the term hereof, the following insurance: 8.3.1 Comprehensive public liability and property damage insurance to protect against any liability to the public or any Persons using the Owner's Lot resulting from any accident occurring on such Owner's Lot, with limits of liability not less than (i) one million dollars ($1,000,000.00) per occurrence, and (ii) an aggregate of two million dollars ($2,000,000.00) for bodily injury or death, personal injury, and property damage; 8.3.2 "All-Risk" fire insurance with extended coverage, vandalism and malicious mischief and sprinkler leakage endorsements, in an amount sufficient to cover the full replacement cost of all improvements of any type whatsoever located on such Owner's Lot. Each policy of insurance required hereunder shall name each Owner of a Lot within the Property (and any person holding a mortgage or deed of trust on such Owner's Lot) as additional insureds, and such insurance shall provide that the same may not be cancelled or modified as to scope, coverage, or liability limits without at least thirty (30) days prior written notice to the Owner of such Lot and Declarant. Each policy of insurance shall contain cross-liability endorsements applicable to each insured under such policy. ARTICLE 9 NON-PAYMENT OF ASSESSMENTS 9.1. Delinquency. Any Assessment which is not paid when due shall be delinquent. With respect to each Assessment not paid within fifteen (15) days after the due date, the Property Management Committee may, at its election, require the Owner to pay a "late charge" in a sum to be determined by the Property Management Committee, but not to exceed ten percent (10%) of the amount of the delinquent Assessment per each delinquent Assessment. If any such Assessment is not paid within thirty (30) days after the delinquency date, the Assessment shall bear interest from the date of delinquency at the maximum rate permitted by law, and the Property Management Committee may, at its option, bring an action at law against the Owner personally obligated to pay the same, or upon compliance with the notice provisions set forth in paragraph 9.2 hereof, foreclose the lien (provided for in paragraph 5.1 hereof) against the Lot, and there shall be added to the amount of such Assessment the late charge, the costs of preparing and filing the compliant in such action, and in the event a judgment is obtained, such judgment shall include interest and reasonable attorney fees, together with the costs of the action. Each Owner vests in the Property Management Committee, or its assigns, the right and power to bring all actions at law or lien foreclosure against such Owner for the collection of such delinquent Assessments. C:\MLH\HOMES\DOC\CC&RS40.1 14 April 8, 1996 9.2. Notice Of Lien. No action shall be brought to foreclose said Assessment lien or to proceed under the power of sale herein provided until thirty (30) days from the date (i) a notice of claim of lien is deposited in the United States mail, certified or registered, postage prepaid, to the Owner of said Lot, and (ii) a copy thereof is recorded by the Property Management Committee in the Office of the San Diego County Recorder; said notice of claim must recite (i) a good and sufficient legal description of any such Lot, (ii) the Owner or reputed Owner thereof; (iii) the amount claimed, including interest, reasonable attorney fees and expenses of collection incurred in connection with the debt secured by said lien and late charges as specified in paragraph 9.1 above, and (iv) the name and address of the claimant. Notwithstanding the foregoing, recordation of a notice of claim of lien shall not be required in the event the San Diego County Recorder refuses to record the same. 9.3. Foreclosure Sale. Any such sale provided for above is to be conducted in accordance with provisions of the Civil Code of the State of California, as it may hereafter be modified or amended, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner permitted or provided by law. 9.4. Curing Of Default. Upon the timely payment or other satisfaction of (i) all delinquent Assessments specified in the notice of claim of lien, (ii) all other Assessments which have become due and payable with respect to the Lot as to which such notice of claim of lien was recorded, and (iii) interest, late charges, attorney fees and other costs of collection pursuant to this Declaration which have accrued, the Property Management Committee is hereby authorized to file or record, as the case may be, an appropriate release of such notice, upon payment by the defaulting Owner of an amount, to be determined by the Property Management Committee, to cover the costs of preparing and filing or recording such release. 9.5. Cumulative Remedies. The lien and the rights to foreclosure and sale thereunder shall be in addition to and not in substitution for all other rights and remedies which the Property Management Committee and its assigns may have hereunder and by law, including a suit to recover a money judgment for unpaid Assessments, as provided above. 9.6. Subordination Of Assessment Liens. If any Lot subject to a monetary lien created by any provision hereof shall be subject to the lien of a deed of trust, the foreclosure of any lien created by anything set forth in this Declaration shall not operate to affect or impair the lien of such deed of trust. The foreclosure of the lien of such a deed of trust, or the acceptance of a deed in lieu of foreclosure of the deed of trust, shall not operate to affect or impair the lien hereof, except that the lien hereof for said charges as shall have accrued up to the foreclosure or the acceptance of the deed in lieu of foreclosure, shall be subordinate to the lien of the deed of trust, with the foreclosure purchaser or deed-in-lieu grantee taking title free of the lien hereof for all said charges that have accrued up to the time of the foreclosure or deed given in lieu of foreclosure, but subject to the lien hereof for all said charges that shall accrue subsequent to the foreclosure or deed given in lieu of foreclosure. C:\MLH\HOMES\DOC\CC&RS40.1 15 Aprils. 1996 ARTICLE 10 MISCELLANEOUS PROVISIONS 10.1. Enforcement. Declarant, the Property Management Committee, and any Owner shall have the right to enforce by proceedings at law or in equity all Restrictions, conditions, covenants and reservations now or hereafter imposed by the provisions of this Declaration or any amendment thereto, including the right to prevent the violation of any such Restrictions, conditions, covenants, or reservations, and the right to recover damages or other amounts due for such violation; provided, however, that with respect to Assessment liens, the Property Management Committee shall have the exclusive right to the enforcement thereof. 10.2. No Waiver. Failure by the Declarant, the Property Management Committee, or by any Owner to enforce any covenant, condition, or Restriction herein contained in any certain instance or on any particular occasion shall not be deemed a waiver of such right on any such future breach of the same or any other covenant, condition, or restriction. 10.3. Cumulative Remedies. All rights, options and remedies of Declarant, the Property Management Committee, or the Owners under this Declaration are cumulative, and not one of them shall be exclusive of any other, and Declarant, the Property Management Committee, and the Owners shall have the right to pursue any one or all of such rights, options, and remedies, or any other remedy or relief which may be provided by law, whether or not stated in this Declaration. 10.4. Constructive Notice And Acceptance. Every Person who now or 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 Restriction, easement, or reservation now or hereafter imposed by this Declaration whether or not any reference to this Declaration or such Restriction, easement, or reservation is contained in the instrument by which such Person acquired an interest in said Property. 10.5. Mutuality. Reciprocity. Runs With Land. All Restrictions, easements, reservations and agreements contained herein are made for the direct, mutual and reciprocal benefit of each and every portion and Lot of the Property; shall create mutual, equitable servitudes upon each Lot in favor of every other Lot; shall create reciprocal rights and obligations among the respective Owners of all Lots and privity of contract and estate among all Owners, lessees, sublessee and tenants of said Lots, their heirs, successors and assigns; and shall, as to the Owner of each Lot, its heirs, successors and assigns, operate as covenants running with the land, for the benefit of all other Lots; all of which shall inure to the benefit of and be enforceable by Declarant, the Property Management Committee, and any Owner, their respective legal representatives, heirs, successors and assigns, for a term of sixty (60) years from the date this Declaration is recorded, after which time said covenants, conditions and Restrictions shall be automatically extended for successive periods often (10) years, C:\MLH\HOMES\DOC\CC&RS40.1 16 April 8, 1996 unless an instrument, signed by a majority of the then Owners, has been recorded agreeing to terminate said covenants, conditions and Restrictions in whole or in part. 10.6. Construction. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a plan for the development and maintenance of the Property. Paragraph headings where used herein are inserted for convenience only and are not intended to be a part of this Declaration or in any way to define, limit, or describe the scope and intend of the particular paragraphs to which they refer. 10.7. Effect Of Invalidation. If any provision of this Declaration is held to be invalid by any court, the invalidity of such provision shall not affect the validity of the remaining provisions hereof. 10.8. Amendment. Until such time as Declarant no longer owns a Lot in the Property, amendments or modifications to this Declaration shall be effective only when executed by Declarant and when recorded in the Official Records of San Diego County. Thereafter, this Declaration may be amended only by the affirmative vote or written consent of Owners representing not less than seventy-five percent (75%) of the voting power of the Owners, evidence of which must be recorded in the Official Records of San Diego County. 10.9. Singular Includes Plural. Whenever the context of this Declaration requires same, the singular shall include the plural and the masculine shall include the feminine and the neuter. 10.10. Nuisance. The result of every act or omission, whereby any provision, condition, Restriction, covenant, easement, or reservation contained in this Declaration is violated in whole or in part, is hereby declared to be and constitutes a nuisance, and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result, and may be exercised by Declarant, the Property Management Committee, or any Owner. Such remedy shall be deemed cumulative and not exclusive. 10.11. Attorney Fees. In the event an action is instituted to enforce any of the provisions in this Declaration, the party prevailing in such action shall be entitled to recover from the other party thereto as part of the judgment reasonable attorney fees and costs of such suit. 10.12. Choice Of Law. This Declaration shall be construed and enforced in accordance with the laws of the State of California. 10.13. Non-Liability Of Officials. To the fullest extent permitted by law, neither Declarant, the Property Management Committee, nor any agent of such Committee or Declarant, shall be liable to any Owner or Declarant or any member of the Property Management Committee for any damage, loss, or prejudice suffered or claimed on account of any decision, approval, or disapproval of plans or specifications (whether or not defective), course of action, act, omission, error, negligence, or the C:\MLH\HOMES\DOC\CC&RS40.1 17 Aprils, 1996 like made in good faith or which Declarant, the Committee, or agent reasonably believed to be within the scope of their duties. 10.14. Leases. Any agreement for the leasing or rental of a Lot or any Building thereon ("Lease") shall provide that the terms of such Lease shall be subject in all respects to the provisions of this Declaration. Such Lease shall further provide that any failure by the lessee thereunder to comply with the terms of the foregoing documents shall be a default under the Lease. All Leases shall be in writing. Any Owner who shall lease its Lot or Building thereon shall be responsible for assuring compliance by such Owner's lessee with this Declaration. 10.15. Construction By Declarant. Nothing in this Declaration shall limit the right of Declarant to alter the Lots, or to construct such additional Improvements as Declarant deems advisable prior to the completion of Improvements upon, and sale of, the entire Property. Such right shall include but shall not be limited to erecting, constructing and maintaining on the Property such structures and displays as may be reasonably necessary for the conduct of the business of completing the work and disposing of the same by sale, lease, or otherwise. This Declaration shall not limit the right of Declarant at any time prior to acquisition of title by a purchaser from Declarant to establish on the Property additional licenses, reservations, and rights-of-way to itself, to utility companies, or to others as may from time to time be reasonably necessary to the proper development and disposal of the Property. Declarant reserves the right to alter its construction plans and designs as it deems appropriate. The rights of Declarant hereunder may be assigned to any successor or successors to all or part of Declarant's respective interest in the Property, by an express assignment incorporated in a recorded deed or lease, as the case may be, transferring such interest to such successor. Declarant shall exercise its rights contained in this provision in such a way as not to unreasonably interfere with the Owners' rights to use and enjoy the Property. IN WITNESS WHEREOF, the undersigned have executed this Declaration on the date first hereinabove written. HOMES FOR INDUSTRY-CARLSBAD, LIMITED LIABILITY COMPANY, a limited liability company By: Name: Title: C:\MLH\HOMES\DOC\CC&RS40.I 1° April 8, 1996 State of California ) ) County of San Diego ) . — 'On q ^ ^ - £7 k before me, i^JfJ^.^ M- _ /W-^--^- ^ , Notary, personally appeared ^L^i/Clix/v^ )\i-a-*C _ , personally 'known to me^ or proved to me on the basis of satisfactory evidence $b be the person(s) whose name(s) is/are, subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature^ 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. ii / ::~^:--:'^, eriTv j. HAYES '' •'•••;•?-,• Public — Cali>orr>in / .;AN O'EGO COUNTY Mv C,--nrn. Expires JUL 31. W Signature ' ^ J [SEAL] C:\MLH\HOMES\DOaCC&RS40.1 19 April 8, 1996 EXHIBIT "A" DESCRIPTION OF PROPERTY C.\MLH\HOMES\DOC\CC&RS40.1 Aprj| g 1996 01155630 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO AND IS DESCRIBED AS FOLLOWS: LOT 40 OF CARLSBAD TRACT NO. 81-46 UNIT NO. 2, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 11288, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 16, 1985. EXCEPTING THEREFROM AN UNDIVIDED 50% INTEREST OF ALL OIL, MINERAL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW A DEPTH OF 50.0 FEET UNDER THE REAL PROPERTY, WITHOUT RIGHT OF SURFACE ENTRY AS RESERVED BY CARLSBAD PROPERTIES, A PARTNERSHIP RECORDED JULY 5, 1978 AS FILE NO. 1978-279136 OF OFFICIAL RECORDS. EXHIBIT "B" SITE PLAN C:\MLH\HOMES\DOC\CC&RS40.1 April 8, 1996 BLO6 A 0087 80. FT. TYPE V. N BLOOD SOM SO. FTTYPE V. N BLOQ E 903990. FT. TYPE V. N BLDQB 7000 SO. FT. TYPE V. N ^.•=:—-HI BLDGC 7500 SO. FT. TYPE V. N SITE PLAN