HomeMy WebLinkAboutPIP 93-03; Knorr's Beeswax; Planned Industrial Permit (PIP) (7)ai- - 409
CARLSBAD AIRPORT CEMTRE 2204 Garnet Avenue, Suite 102 San Olego, California 92109
Attention: Mr. Dean Greenberg
86 4OlbS6
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DECLARAT ION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
CARLSBAO AIRPORT CENTAL
.- SAN OIEGO COUNTY, CALIFORNIA
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Article
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Title
DCPIUITIONS ...................................
DESCRIPTION O? PROJECT. DIVISIW OF PROPERTY.
AMD CREATION OF PROPERTY RIGHTS ...............
2.1 Description of Projoct ...............
2.2 Division of Subject Property ......... 2 a3 No Separate Conveyance of Interests .. 2.4 Annexation of Additional Parcels ..... 2-5 De-Annexation of Parcels .............
ASSOCIATION. ADMIUISTRATIONr MEMBERSHIP MID VOTING RIGHTS .................................
3.1 Association to Manage Conrron Area .... 3.2 ........................... 3.3 Transferred mmbership ...............
3.4 ChS8e8 Of Membership ................ 3.5 Voting Requirements ..................
Membership
3.6 Commencement of Voting Rights ........ 3.7 .................. 3.8 Memberrhip neetingo Board of Directorr ...................
WbtFENANCI AND ASSESSMENTS ...................
4 -1 Creation of thr Lien and ~ersonat
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.c ... .*,. .. c . .#? . .A. .. 4 . 3 ............ ............... .................. .................. 4.2
Obligation of ASSeOODentS
4.3 Purpose of Assessments
4.4 Regular Assessbants
4.5
Special Assersments Capital Improvement Assersments ...... 4.6 Rate of Aasersment .................... 4.7 Date of Commencement of Regular
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Assersnents and Fixing Thereof
4.9 Certificate of Payment Duties of thu Board
4.11 Exempt Property znforcemeut of AsseuurcruL ubliguLiuu; ?riorities; Discipline ............... 4.12 Payment of Taxes A8SeSS.d Against ComPwn Area or Personal Property of Association ..........................
4 J4 Property Taxes Proration of Segregated Real Property Taxes ................................ 4.15 TraIWfer Of Unit .....................
DUTIZS AND PWERS OF THE ASSOCIATION ..........
s . 1 .................... 5.2 Duties and Powers Raintenance of Project by
AS8OCi.tiOn ..........................
5.3 As8ociation Easementm ................ 5.4 Owner's Default ......................
UTILITIES'.....................................
........ ............... .................. ...................... 4.10
4.13 Proration of Unsegregated Real .......................
6.1 ............ 6.2 Wner's Right and ~uties Easements for btilities and Maintenance ........................... 6.3 A8sociation's >utiea .................
ARCttITECTURAL CONTROL .........................
7.1
7.2 Landscaping Approval ................. Architectural Approval ...............
? . ? Appointment ..'e Architectural Cornittee
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7 a6 7.7 7.8 7.9 7 e10 7 . 11 7 -12
1so Li8bility ......................... mtice of lonco~oplianco or Isoooapletion ........................ ItU1.8 and Re9UhtiOn8; Guidolino8 .... Variance# ............................ Appointment and Daaignation .......... Review ?eo and Addroar ............... Insp.ctic>n ........................... General Provisions ................... akaapplicability to Ori.gina1 Construction .........................
US6 REsTRICTIoLlS ..............................
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8.16 8.17 8.18 8.19
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8.14
Pezmitted Ua.8 .......................
Oil Drilling and Mining wuisances
Antennas ............................. Anbls ..............................
Vehicular Storaao and Parking; Rubbish. EtC
Outdoor Activfties
. Uo Residential Use ................... ............................ ..............
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s-8g 0. OOOOOOO~~O~~OOOb~~~~~OOOO~~O~b ................... 1 "
Conditioq . of an Owner's Unit ......... Liability of Owners for Damage ....... Haximum Sound f.evels, Etc .............
Wastes ............................... Billboards and Sign8 .................
Air Pollution Guidelines ............. other Operatibns and Use8 ............ Loading Restrictions ................. Metal Structures ..................... Screaniny of Equipment ............... No Warranty of Enforceability ........
INSURAHCE MD . SJTRUCTION OF IMPROVEMENTS .. e..
9.1 Insurance ..........................
9.2 Destruction of Improvements .......... 9.3 Condemnation .........................
MA1"CE BY UNIT OWNERS ....................
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11.3 A1.4 11.5 11.6
11.7 11.8
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enforcement .......................... Yogligence and/or Willful Mimonduct . Sewrability ......................... Term ................................. Construction .......................... mdments ............................ Rortgage Protection Clauae ............ Singular Include8 Plural .............. wuimanc ............................... Encroachment Ei84mantu ................ Wonliability of Officials ............. ounar's Easement of En joylaent ......... Owner's Compliance .................... Conatroction By Declarant .............
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O~TIOW OF
SUI DIEGO aWWTY, CALIPORNIA
THIS DECLARATIOY OF QWWMFPS, CON IONS AUD RESTRICTIONS (mDeclarationm), is de 011 - I 19 56 , by CAIUSBAO AIRPORT mR ornia limited partnership ("Declarant") with reference to the following factax
h. Declarant is the fee wner of that certain real property located in the County of San Diego, State of California, more particularly described on Exhibit A attached hereto and made a part hereof, together with any additional real property annexed thereto in the future under tlri8 Declaration
( the 'Subject Property').
8. Declarant has developed and improved or is in the process oi developing and inprovinq the Subject Prqmrty by subdividing and constructing thereon certain improvrments which Declarant is sarketing as a planned development according to the uses set forth in Article 8 hereof.
. .e C- Tha develmeat shall bz generally known 6s "CARLSBAD
AIRPORT CENTRE' and shall k hereixaftor referred to as the "Project". Each Owner shall recrive Pee title to his individual Lot and the improvements thereor (collectively the '"Unit') as well as a menbarship in CARLSSAG AIRPORT CENTRE, Ovners ASSOCiatiOn, a California nonproCi* mutual bvnef it corporation, which cor-ooratkon shall own fee title to and/or be re8ponsiblr for the Common Area (as such term is hereinafter defined).
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0. Declarant intends by this document to il.lpose upon the
Sub ject Property outually beneficial restrictions under a general plan of iaprovement for the benefit of all of the [Jnits and the Ownurs th+reoL.
Declarant herehy declares that the Subject eroperty and all improvements erected thereon shall be held, conveyed, mortgaged, encumbered, leased. subleased, used, occupied, sold, assigned and improved, subject to the €allowing declarations, limitations, covenants, CoaditiOn8, restrictions, and easements, all of which are for the purpore of enhancing and protecting the value and ettractiveness of the Subject Property and all improvements erected thereon, and the Project, and every part thereof, in accordance with the plan for the improvement of the Subject Property and the division thereof into a planned development. All of the limitations, COvcI1ants, condition8, restrictions. ad easements shall constitute covenants which shall run with th. land and shall be perpetually binding upon Declaraat and its rucce8sors-in-interest and asrignr, and all parties having or acquiring any rLqht. title, or interest in OK to any part of tb8 Subject Property, and all improvements orect.6 thereon, or the Project.
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DEFI#I'?IONS
1.1 'Articles' shall man and refer to the Articles of Incorporation of the ZU8ociation as mended froa time to time.
1.2 'Asses8Yat' shall mean and refer to that portion of the cost of maintaining, improving, repairing, operatinq, and managing the Subject Property and a11 improvements urected thereon (except for that part of each Owner' s building as set forth herein which shall be the Owner's responsibility which assessment is to be paid by each Unit as determined by the hasociation.
1.3 'Association' shall mean and refer to CAHLSBAD AIRPORT CENTRE, OWNERS ASSOCIATION, a California Nonprofit ?iutual benefit Corporation, the members of which shall be the Owners of Units in the Project.
1.4 "Board' or 'Board of Directors' shall man and refer to the governing body of the Association.
1.5 "Building Element. shall mean and refer to the building located upon any individually mined Lot in the Project.
.1.6 mBylmm shall urd !.far to the Bylaws of the Association as aEended froa time ta tin&. .e
1.7 'cowrton hrea' rhrS1 wsan and refer to all real property and the improvements thrteon, including, without limitation, any private storm draiq or sever systems, retention basins, pcrkuays, entries, natural canyon areas, all fill and cut slopes adjacent to public streets, Special Landscaped hreas (as defined in Article 5.1.1 hereof), internal private roadways and parking areas, mini-parks, median strips, qreenbelts, private utilities, open space 5. f open space easements, trai ls, bike paths and bike LbnuS, Y 1- signs, monuments and appurtenances owned, leased, or to be maintained, from tinre to time, by the Association for the common use and enjoyment of the Membera. dhich shall be that certain property described on Exhibit 0 attached hereto and made a parr, hereof. Any additional property to be designated as xukon hrea" aholl be conveyed to the Association and/or descr L6.d or referenced herein or in a Declaration of Annexation.
. 1.8 "Colllon Expense.' shall mean and refer to the actual and estimated expenses of operating the Comnon Area and the As6ociation and any reasonable reserve for such purposes as found and detrrrined by the Board and all sums dosignated common expenses by or pursuant to the Pro ject Documents.
1.9 'Declarant' shall mean and refer to CARLSBAD hIRPORT CENTRE, a California limited partnerahip, and its succesrors-in-
interest and assigns, but shall not include members of the public purchasing completed Units.
1.10 'Declaration' shall mean and refer to this enabling Daclaration.
1.11 'Institutional Lender" sila1L mean and refer to any bank, savings and loan assaciatiun, insurance company, or other financial institution holdinq a recurded first mortgage on any Unit.
1.L2 'LX" shail nean and refvr to any particular parcar
-of land rPsultinq from division of the Project according to Law. Ilouaver, 'Lot" shalL not include real properry owned by the Asaociati~n. "Lot" shall also mew. any condominiuts.
'1.13 ";?.-!I.' shal L wan and refer to Carlsbad TracL No. 6 :-
46, Unit 40. I (or a portion thereof), being a subdivislon cf a portion of Lot "C" of Wancho Aqua Iledonia, in the County of Sac Diego, State of California, according to map theraof 140. n". fi led in the Offrce of the County Recorder of San
Di.90 County, taovember 16, 1896; and subsequently recorded MP, filed in the County of Sao Diego, Office of the County Recorder a8 nap No. 11287, 11288 and 11289 on July 16, 1985, and all amendubant8 thereto, which cover the Subject property or a portion thereof.
1.14 "Member. shall mean and refer to a person entitled to membership in the hssocfation as provided herein.
1.1s 'Mortgage" shall mean and refer to a deed of trust as well as a mortgage.
1.16 .Mortgagee* ahall mean and refer to the beneficiary or a holder of a deed of trust as well a8 a mortgagee.
1.17 "Hortgagor" shall man and refer to the trustor of a deed of trust as we11 as a mortgagor.
1.18 "Owner" or "Ownerr' rhall mean and refer to the record holder or holder8 of title of a Unit in the Project.
This shall exclude pcrsons or entities having any interent merely a8 security for the performance of any obligation.
i.19 orso son" shall mean and refor to a natural perron, a corporation, a partnership, . .. a trcistee, or other legal entity.
of property which i8 or shall become part of the Project pursuant to the recordation of an appropriate Declaration of Annexation. The property described in Exhibit A to thi8 Declaration shall be deemed to be the first Phase of the Project
and any parcel annexed to the property described in Exhibit A under a Declaration of Annexation shall be deemed to be a 8UbSeqUent Phase of the Proiect. Each of the divisions of land a8 shown on Exhibit C attecned hereto and made a part hereof shall be subsequent Phases upon annexation.
1.20 "phase" shall mean a.4 refer to a particular parcel
1.21 'Project" rhall mean and refer to the entire Subject Property including all structures and improvements erected or to be erected thereon.
1.22 "Project Documents" shall mean and refer to this Declaration as it may be amended from time to time, the exhibitr, if any, attached hereto, the Map, the Article8 and Bylaw8 of the Association, and tire ruler and regulations for the Members as eutabli8hed from time to time.
1.23 "Specific Plan" rhall meiin, with reqard to any Ph8u within the Project, that certain "Specific Plan' of development approved by the City of Carlsbad. A copy of any approved Specific Plan ia on f ilc with the city of Carlsbad.
1.24 "Subject Proparty" shall mean and refer to the real proporty covered by thrs Declaration (including property annexed pursuant to thi8 Declaration), and all improvewnts erected thoroon and all property, real, personal, or mixad, intend& for or u8.d in connection with the Project.
1 .25 'Tract" shall meen and refer to a portion of the Subject Property or of a Phase for which a major sabdivision map is recorded,
1.26 "Unit" shall mean and refer collectively to the elements of an individual Lot and the building in the planned development, as defined in Article 2.
. 1.27 "Un,r Designation' meam the Irumber, letter, or combination thereof or other otfir Ar: desig.~?.ion Fhwn 011 ?e Map.
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AICTICLE 2 4
DESCRIPTXON OF PRcXltcIe DIVISION OF PROPERTY AND # $4 CREATION OF PROPERTY RIGHTS
2.1 Doscription of Projm
Tho Project consist8 of the underlying Subject Property with the Units and a11 other improvemonts Located or to be located thereon, and include8 a11 Pha8es annexed pursuant to this Declaration.
2.2 Division of Subjoct Proeerty
The Subject Property is hereby defined a8 follaw8r
2.2.1 Units
Each of’ the Units consist8 of an individually owned Lot and ali improvements including tho Building El8Ill.nt- located thereon. Title to the Unit ahall be held by the Owner thereof aubject to the specific covenants, condition8 and restriction, set forth in this Declaration. Each Unit i8 subject to such encroachments as may now exist or raay be Later caused or created in any mannor. In interpreting deed8 and
plans, the then existing physical boundaries of a Unit, whother in its original state or reconstructed in rubstantial accordance- with the original plans thereof, shall be conclusively presumed to be its barndarier rather than t?ra boundari.8 expremed in the deed or plan, regardlosa of aettl ing or latot81 a0Vmnt ot thi building and regardhas of minor variance(s) betwoen the twndaries shwn on the plan’ or deod, and thoro of the Building
’ A ament.
2.2.2 Common Area Lots and Conmon Area
That portion of the Subject Property deacrihd on attached Exhibit B shall be be “CoInmOn Area Lots“, title to which shall be held by the Prsociation. The Common Are8 (which includes, without Limitatiolr, the Common Area tots and the improvements -.:.ereon) shall be operated and maintained by :he Association :,c the US. and benefit of Owner8 of Units. in the Project, subject to reasonable rules and reyulatiolu enacted according to the Bylaws. Unless otherwisa restricted, each Unit Owner may use the CooPmon Area in accordanco with the purpose. for which it is intended without hindering the exorcise of or
encroaching upon the right8 of any other Unit Owners. Declarant shall reserve and hereby reaerves in itsolf and its succesaors
and assigns, as woll as in the AsSOCiatiOn and in all other Owners, easements over and onto the Co-n Are8 and over and onto the individual Lots up to the exterior perineter walls of each Building element for drainaqo and encroachment purpose. and for ingress to and egress from the Cornuon Arop and such portions of the individual Lots for the purpoae of Caapl4ting improvementa thereon or for the performance of nece8sary maintenance, landacaping, and ropair work, and for vntry onto adjacent proporty Fn connection with the devolopme:# of additional phases of the Project. Declarant shall also reserve and hereby reserves in itself and it8 successors and aa8igns, for a five year period fra the dato of tho initial recordation of this Declaration in tha Official Records of tha San Diego County, California ReCor&r, a right to reasonably alter or modify tho size and ba~ndarios of the Phase I Comon Area Lots or other Conmon Area consirtent with the proper development ot future Phase. of the property described on attached Exhibits A,
B, and C.
2.3 No Separate Conveyance of Interests
The foregoing interests and exclu8ive easements ate hereby establisned and are to be conveyed only with the rempective Units, and cannot be chanqed, except as heruin set forth. Declarant, its succe~sora-in-.infere~t, asni;nr and grantees, cover!ant and agreo that the easements in the Comrn - 4-
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At.., tho Lot., and the Unit8 shall not be separatod or separately assigned or conveyed, and each ruch intererr and exclooivo easement shall k deemed to bo convo ed or encumberod with it8 respective Unit even though tke doscrlption in the i n8trumont of conveyance or encun~branco may refor cnly to the title of the Unit.
2.4 Annexation of Additional parcels
Additional parcels may be annexod to the Subject Property and become subject to thir Declaration by either of the following methods:
2.4.1 Annexation Pursuant to Plan 1
Tho property described in EXHIBIT C, or any portion thereof, may be annexed to and Socomcr a part of tho Project, subject to this Declaration, and subjocr to the jurisdiction of the Association, without the assont of the Association or its Members, on condition that:
2.4.1.1 .-- Any annoxation pursuazt to this Subarticle shall be nlade prior to tventy-five (25i years from “ date of the initial recordation of this Declaration in the .O.fFiCial. Record. of the San Diego County, California Recorder.
2.4.1.2 A Dnclaration of Annexation shall
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bo recorded by Declarant couerin) the applicablo portion of the proporty to be annexed. Said Declaration shall incorporate this Declaration by reference and nay coa.tain such complementary additions and Dodifications of ~l~a covenants and rootricticns contained in this Declaration as may be nccossary to ref lect tho different character, if cny, of the added property, and as”ar8 not couaistapt with the schema .of this Declaration.
2.4.2 Annexatiota Pursuant to Approval
Upon the vote or writton assent of Declarant (while Declarant is an Owner) and of two-thirds (2/3) uf the total voter residing in Members of the Association other than Declarant, the Ownor of any property who desiros to add it to the rcheme of thi8 Declaration and to rubject it to the jurisdiction of tho Association, may record a Declaration of Annexation in the manner described in ths proceding Subarticle. Upon annexation of a new Phase, tlbe annexed parcel shall become subject to this Declaration without tho necesrity of amending individual sections hereof. The Cwners of the units in a preexisting Pha80 will continue to have the same rights with respoct to the uro oL the Common Area locatod within their Phase, and will havo a non-exclusivo easomont for accers, ingress, md ogress for pedestrian, cycle, and parrenqer and delivery vehicle traffic, as well as for vohicular parking and otherwise over and for reasonable use of tho Conmon Area located within the new Yhare in accordance with the purposes tor vhich
it ir inteadad without hindering the exercfso of or encroachir.g dpon ho rights of any other Owners. Ovnorr of Units in the ne* Ph.8. will have a non-exclueive earement for acceso, ingross,
8nd egrrs8 for pedestrian, cycle, and paraonger and dalivery vehicle traffic, as well as for vehicular parkiny and otlrerwior over and Cor rearonable use of any corunorr Area locilted within the now Pharc or within any preexisting Phase in accordance ulth
the purposes for which it ir intendad vithout hindurinq the exercise of or encroaching upon rho right8 or any other Owners and Will become Members of the Association. Declarant elereby reserves to itself, its srlccesrora and asriqnr, the right to, and agrees that it will, grant tG the Ovnorc of Units in any new
Or pre-exirtlnq Phase, the non-exclusive .easements for access, ingras8, eyresr, vehicular parking and otherwise, and rrauonaole us0 a8 described in this paragraph. In addition, Lleclarirnr 8hau reserve and hereby reserves in itrelf and in its succensorr and assigns, as over and onto the Conunon Area and over and Onto the individual Loto up to the exterior per1nteter
walls of each Building Elemeilt in any new Phase fcr tlrairlacJa and encroachr.-!:r pur1:oses and Ecr ingress to and egress €L.C)III tllr?
copraon Area and such pottiOM of the individual Lots for the purpose of colpleting improvements thereon or for the performance of necessary maintenance, landscapinq, and repair work, and for entry onto adjacent property in connection vith the development of additional Phases of the Project.
2.5 De-annexation of Parcels
Any parcel annexed to the Subject Property pursuant to the plan of Declarbnt, in accordance wLth Subarticle 2.4.1 above, may be de-annexed by Declarant and removed from the - Project and the jurisdiction of this Declaration and the Association at any time the recordation of an appropriate Declaration of Dcannexat ? on: provided that 8uch de-annexation shall take place (1) before any Unit in the annexed parcel ha8 been sold by Declarant to a member of the general public: (2 1 before any vote has ken exerci8ed on behalf Of Or with respect to any such Unit2 and (3) before any auch Unit has incurred any asses8rnent obligation to the Association.
EN0 OF ARTICLE 2 ENTITLE0
DESCRI&'TION OF PROJECT, DIVISION OF PROPER'i'Y, AND CREATION OF PROPEHTY RIGHTS
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The mnaqrment of th8 Common Ar8a shall be vested in the Association in accordanc8 with th8 Bylaws. The Ounars of all .
the Unita covenant and agre8 that the adainirtration of th8 Project shall be in accordanc8 with tho provisions of this Declaration, the Articles, th8 Bylaws, and tho rul8s and regulations of thr Association, subjsct to th8 standards s8t forth in this Declaration and all applicable laws, requlations and ordinances of any gov8rnrnental or quasi-governmental body or agency having jurisdiction over th8 Project.
'1%. Owner of a Unit shall automatically, upon becoming the mer of same, be a r.wnber of th8 ~srociation, and shall remain a Hembar thereof until such tim as his ownerrhip ceases for any reason, at which time his membership in the Association shall automatically cease. Membership shall be in accordance with the Articles and the Dylaws of the Association
3.3 Transferred Membershie
Membership in the Association shall not be traruf8rt.c;lr pledged, or alienated in any way, except upn th8 transfer of ownership of the Unit t;, which it is appurtunrnc, and then only to the new Owner. hny attempt to make such a transfer is void. In the event the Ovner of any Unit should faiL or rcEuse to transfer the membership registered in hi8 name to the purchaser of his Unit, the Aqsociation shall have tho . riqht to record the transfer upon its books and thereupon th8 old men.bership outstanding in the name of the seller sh&ll..Ln- null and wid.
3.4 Classes of Membershig
The Association sh.alL have two (21 classus OF voting membersl~ip established accordinq to tlra eo1 Lvwicty yruvisionux
3.4.1 Class A Membership
Class A Members shall be all MembeCs with the exception of Declarant. Class A Members shall be sntithd to vote that fraction of one vote as is equal to the .parcantag8 interest attrrbutable to the Unit owned by such Owner as Sat forth on the Percentage Interest Schedule attached hereto as Exhibit D and by this reference made a part hereof or on an appropriate exhibit to the Declaration of Annexatioa. (The Percentage Interest Schedule has been determin8d by Declarant approximating the square footage of each lot in the Subjoct Property in relation to the square footages of all other lots in the Subject Property. The percentage allocations at8 and shall
b8 binding on th8 Declarant and on all Owners. If th8 actual square fooraqes are more than three percent (3%) (plus Or minus) diftor8nt than ths approximated square footages, the Board shall r8compute the P8rccntaqe Interest Schedule and the n8w Sch8dule shall thereafter be binding on the Declarant and on all Ouner8. In no event shall the Declarant or an Owner fail to pay its ass8ssments by reason of a disagreement with either the original Schedule or the recomputed Schedule. If a Unit is owned by more than one (1) person, each such person shall be a mmbor of the Associatiotr, but they shall collectively have no more than the
fraction of one vote so allocated to their Unit.
3.4.2 Class 8 Mernberrhip
The Class 8 Member ahall be Declarant. The Class, B meder shall be entitle< to ten (LO) times the Exhibit I) w fraction of .me vote otherwise ellocated to each Unit awlerl I>y Declarant, provided that the C).css membership shell .:ease aru p rq
be converted to CLase A membership on the happening Of LllC r'ru -3
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aarliec of the following event81
3.4.2.1 When tho total votes outatanding in
the ClaSS A mcmberahip equal8 the total Wtos outstanding in the Class 8 membership.
3.4.2.2 me expiration of' twenty-five (2s) years from the date her8of.
3.5 voting Requitunents
While thero are two (2) outrtanding classes of membership, any action by the Aasociation which must have tho approvaL of the Association membership before beiny undertaken shall require the vote or written arrent of the prescribed percmtage of each clars of membership.
3.6 Commencement of Votiny Rights
Voting rights attributable to any Unit shalL not vest "----until an assessme~~t has been levied aqainrt that Unit by the Association, pursuant to Article 4, beLou. "
3.7 Membership Meetings
Regular and special wiring. OS IYIDkts of the Aasociation shall ba held with the frequency, at tho time and place, and in accordance wkth tke provisions of the Bylaws of
the Association.
3.8 Board of Director8
The affairs oC the association slraL1 be managad by a Doard of I~ireCtofs, which shall be established, and which shall conduct regular and special meetings -according to =ha provisions of the Dy Laws of the Association.
EhO OF AP3ICLE 3 ENTITLE0
ASSOCIAT'.ON, ADMINISTRATION, MWBERSLIIP AND VOTING RSCHTS
ARTICLE 4
UAfmCE AND ASSESSMENTS
4.1 Creation of the Lien and Personal Obligation of ~ssessrents
Declarant, for each Unit owned within the Project, hereby covenants, and each Wner of any Unit by acceptance of a conveyance therefor, vhether or not it ahall ba so expreased in 8UCh conveyance, is dead to covenant and agree to pay to the Aasociationt (1) regular monthly asaesamenta or charges; (2) apecial assessments, and (3) capital improvement assesamants for capital improvements and unexpected expenses. All such asSeSStr1el;t8 are to be established and collected as provided herein and in the Bylaws of the Association. The monthly, special and capital improvement asaeamments, together with interest, costa, and actual attorneys' fees, shall ba a charge and a continuing lien upon the Unit against which each assessment is made. the lien to become effective upon recordation of a notice-of assessment (notice of default and demand to cure). Each such asresamen~~ethet-ui~h-interest,.~~ ~ costs, and actual attorneys' fcea, shall also be the personal obligation of tho pu8on who vas the Owner of such Unit at the time when the assearrent fell durr. No Ownar may exempt.hinuelf from liability for the asseasmebits provided for herein nor release his Unit from the .liens and charges hereof by waiver of the use or enjoyment of any of the Comm Area or by abandonment of Iris unit.
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4.2 purpose of Assessments
The assessmanta levied try the AsSOCiaLiOn stm'il be used exclusively to protiiote the recreation, health, safety and welfare of all the Ounars in the entire Project for the improvement and maintenance of the Comnmn Area for the common good of the Project. Annual assessmenta ahall include an adequate reaerve fund for aaintenhnce, repaira and replacement of the ConrJOn Area.
4.3 Regular Asacsrmcnts.
The munt of regular assesamants shall be determined by the ooard pursuant to this Declaration, the Articlea and Bylaws after qiving due consideration to the current maintenance costs and future neada, including the build up of reserves Lor working capital and contingencies of the Asaociation. The regular assessments shall be paid on a monthly basis. If the Board deternines that the estimate OC total charges for the current year is, or will become, inadequate to meet all current expenses for any reason, it ahall then determine the approximate amount of such inadequacy and isaue a supplemental eatimate of the cOmmOn expenses and determine the reviaed amount of regular asaeasmenta due €rom each Nember, and the date when clue. If the amunt budgeted to met common expenses for any period prove. to be exctrsive in light of the actual cotmon expenses, the Board in ita discretion ray, by resolution, reduce the amount of the regular asseasaents.
4.4 eial Assessments
Sper.lal assessmentb'shall bd levied by the Board against a Unit to reimburse the Aseociation for:
4.4.1 coats incurred in bringinq an Owner and his Unit lrto apliance with the provibions of this Declaration,
the Articles, the Bylaws, GC the rules and regulations:
4. i.2 any other charge designated as a spacial
assessment ir? thia Declaration, the Articles or Bylaw.;
4.4.3 attorneye' fees, interest and other charyes relating thera-to as provided in this Declaratian.
421
In the event the Association undertake. to provide arrterialm or services which benefit individual Units and which can be accrpted or not by iadividual Owners, such Cuners in accepting such materials of seNiC.S agree that the Cost8 thereof shall be
8 apacial aasessment.
4.5 Capital Illprovearant Assasements
I
!
In addition to the regular aaaesamente and special assessments, the hssOCibtiOn may levy in any calendar year, an assessment applicable to that year only, for tho purpose of defraying in wholo or in part, the coat of construction, roconstruction, repair, or replacement (other than due to
destruction) of any capital improvement upon the Comnon Area or to defray any WantiCipatad or underestimated expense or other action or undertaking normally covered by a regular assessment. The imposition of a Capital improvement aaaeaament in a sum in excesa of $lOO,OOO. shall require approval by vote or written consent of Members entitled to exerciae not lass than three- fourths (3/4th5) of the Voting power of the membership.
4.6 ate of Assessment
Each Unit. including Units awned hy Declarant., shall “-----b~s_~_a fractional share of each aggregate regular and special assessment according -to-thaaLlocation8 set forth on Exhibit D attached hereto or on an appropriate exh-eclaration .- of Annexation. (The appropriate exhibit to the Declaration of Annexation ahall be determined by approximating the aquarc .footage of each lot in each coveted Ph88O”Jhe percentage allocations shall’ be binding on the Declarant- and‘ on*all Ouner8 in alL covered Phases. I €.,the actual square footaqer are more than three percent (3a) (plus .x minus) different than the approximated square footaqer, tw Board shall recompute tire Percentage Interest Schedule and the new ScheduLe shall thereafter be binding on the Declarant and on‘all Owners, In no event shall the neclaranc or an Owner fail to pay its .. assessments by reason of a disagreement with either the original Scheclatlc or the racoluput 34 Schedule. AdditLonally, special
aau\towttuttLa my k LuvLu..l :I~J.A~I~u~. LItrllvis!ta.cl tlatia :I re.I disciplinary reaao1a8~ as provided in Subarticlr 4.4.
4.7 Date of Comuuencemant of Regular Asaeasments and Firinq Thoreof
The regular assessmanta providod for herein ahall commence as to all Units in the Project on the first day of the month following th. Close of escrov for the aalo of the first Unit in the Project or at such time before or after auch first day’ of said month a8 Declarant deem appropriate in Declarant’s good faith business liscretion. Due dates of assessments shall
be the first of every month. No notice of such assessment8 shall be required other than an annual notice setting forth the amount of the #nthAy asse8smon~.
4.8 Certificate of Payment
The Association ahall, upon demand, furrrirlr to any Owner liable for said asaesrmcnt, a certificato in writing aigned by an officer of the basociation, setting forth whether the arsersments fat a #pacified Unit have been paid and the amunt of th. delinquency, if any. A reasonable charge may be wade by the Board for the issuance of theae certificates. Such certificate shall be conclusivm evidence of paynant of any asaesstuent therein stated to have been paid.
4.9 outiea of the Board‘
The Board shall fix the amount of the regular assessment against each Unit for each fiscal yoar at Least thirty \30) days before the conuuencement of such year and shall, at that time, prepare a roster of thr, Units within the Subject
P’ropetty altd regular assessments applicablo thereto wbich shall be kept in the off ice of the ~asociation and shal I be npen to inspection by any Wner during normal bueinesa hour.. Written!
5 - 10-
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3.. 422
notice of the regular assea8ments rhall be sent to .vary mner aubject thet8tO at least fifteen (15) days before the
COPID.~C~OI.~~ of each such y8ar.
The Board shall fix th8 amount of all capital improvement assessments at least thirty (30) day8 betore tho date such assessments shall become du8 and shall grve vritten notice to each Owner subject thereto at least fifteen (15) days before th8 date such assessments shall become due.
4.10 Exempt Property
AU property dedicat8d to and accepted by a local public authority shall be exempt from the asse8sments created herein, unless the maintenance responsibility of such dedicated property is not accepted in full by the local authority in vhich case such dedicated property shall not be cxelapt from-th8 asseasmnts created herein.
4.11 Enforcement of A8s888ment Obligation; Prioriti8s: Discipline
recelved fifteen
If any part of any assessment is not paid and
by the- AsSO~beioR-oE-it8 -d88ignated 598nt vithin (15) days afttr the du8 date, an autorrat~~~Flrarge-- of ten percent (10%) shall be arsersed and additional ttn perc8nt (101) sum shall be a.888~-d for each month or fraction thereof from the due data until the arm8smment and all lata charges are paid. When a notice of assessraent (notice ot default and demand to cure). ham been recorded, such assesunent shall constitute a lien on each respective Unit prior and superior to all other Liens excekt all taxes, bond., assersmcnts and other Levies which, by lau. would be superior thereto. Such lien, when delinquent, may be enforced by sale by the kssociation, its attorney or other person authorized by this' Declaration or by lw t~ make ihe sale, after failure of the Owner to pay ouch irrisesbmetrt, in accordance with the provisions of Sections 1356 an3 2924-2q24h of the California Civil Code, applicable to the exercise of powers of sale in mortgayes and deeds of trust, cr in any other manner permitted by law. The Association, act :3 on behalf of the Unit Owners, shall have the pover to bid €9; the Ur.it at the foreclosure sala, and to acquire and hold, lease, mortgage end convey the same. Suit to recover a nmney judgement €or mpaid cOrmnOn expenses, rent and attorneys' fees shall be maintainable without foreclosing or vaiving the lien securing the aame. The Board may impose reasonable monetary penalties including actual attorneys' f eas and costs and may temporarily suspend the Association membership rights of a Unit Ovner who is in drfau1.t in payment of any assesamant. after notice and hearing according tc the IryLaws.
4.12 Payment of Taxes Aasessed Against Colrmon Area or .Personal Property of Association
In the ev8nt that any taxes are asressed against the Common Area, or the personal property of the Arsociation, rather than sqainst the Units, said taxes ahall be included in the assessments made under the provieions of this Article, and, if nL.Cessdry, a special assessaunt may be levied against the Units in an amount equal to said taxes, to be paid in wo in8tallments, thirty (30) days prior to the due date of each tax installlaent.
4.13 Loration of Unreqreqated Real property Taxes
4.13.1 LE real property taxes are prorated by Declarant through escrw in connection rith the conveyance of any Unit at a time when the actua, taxes attributable to such Unit are unknovn (where such actuirl taxes will be unknown at the time escrov closes) and if the tax bill is to be an
-d "unsecrregated:'~ or "blanket" bill covering the Projwct, Declarant shl! I ..:.ke a .?;:Y? LC.!.! eatimate of Lhe rea: prcjyerty taxes applrcable tc cdci. Jnl; and arc.- ow -,.&.l! mk8 the !>!r)Cdtin' based on this good faith emtimate. upon receipt: cf he e
"unsegregated" tax bill after Cl0:3C of e8CrOV. irny adjustments ' -
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i
shall ba made artside of oscrov by Declarant and the Owner of tha Units with the Msociation's cooperation. The Association shall pay before delinquency the entire mUnrcqregated' tax bill for the project. Pollaring tha issuance of the munsegregatedm tax bill, and bnediatel after the A880~iatiOn ha8 determined each Wner'a prop8r 4 tax as hereinafter provided), oach Owner shall pay the entire tax for each Owner's Unit to tho ~rsociation in order that the Amsociation may satisfy the 'unsegregatedm tax bill before delinquency. Each Owner for himself and his SUCCee8Or8 hereby covenants and agrees that the right of the Asrociation to collect the tax may bo enforced by any of the proctduteS described in this Article 4. The gunoegragatedm tax bill shall be equally divided among the
Ownerr .
4.13.2 Unless the Declarant's good faith eltilaat0 is exact, the Declarant and tha Ouner shall promptly furnish the Asrto~iatiOn with theit closing 8tate1nants as proof of the proration of the "unsegregated* taxea throuyh escrow. The Association shall then promptly determine the difference between the a-mt of taxes charged to the Owner at the close of escrow ( "ownerr Charge" 1 and the Owner's actual share of taxer based on the "unsegregated" tax bill (m~ners Actual Share'). If the Owner'r Charge exceed8 the Owner's Actual Share, the ~ssociation shall pay such e~cers to thr, Owner. and the -Declarant.h.12-inrmediately reimburse the Association €or all such payments. If the owner' s ActiFat3bre-exeo.d.-the Owner * r Charge, the Asmciation rhall inmediately pay the amount of such-
assessmont .pinst thm owner and his. Unit for, rei&urrenent of such payment. -J%!iw *.a &
b ;. exc$?a to Declarant, and shall thereaftor levy a special
-a <
4.13.3 In" the event furthor 'Un8egCegat?idm tax
bills are issued or "unaegrcga~ed* inatallments becorue due foLlcwinq the sale of Unitr, the ii8soc:ation shall be rerponsibh for the papent thereof prior to dhlinquoncy but shall have all riqhta Set forth 1.' :nis Article to coll?ct from each Owner such Owner's propcr ahare of the 'unregregated' bill or *unsegregateda installntent.
4.14 Proration of Sczlreyateri Roal Proporty raxes
4.14.1 If real property taxe8 are prorated by Declarant through escrow Ln connection with the conveyance of any llnit at a time when tho actual taxes attributable to such Unit ate unknwn (where 8uch actual taxea will be unknown at the time escrw closea) and if the tax bill is to be n *segregated* or "individual' bill covering the Unit. the Declarant shall make a good faith ertimate of the real property taxes applicable to
the Unit and escrow shall make the proration based on thir good faith estimte. Upon receipt ot the regregated" tax bill after close of escrow. any adjustments shall be mado outside of escrow by Declarant and the Owner of the Unit with tb Al80CiatiOn's cooperation as provided in Article 4.13.2. The Ovner shall pay before delinquency the "segregated" tax bill for the Unit.
4.14.2 Unless the 0.clarant's good faith estimate is exact, the Declarant and the Owner rhall promptly furnish tho Arsociation with thoir closing rtateuents as proof of the proration of the "segregated" taxes through escrow. The Association ahall then promptly determine the difference betveen tho amount of taxes charged to the Owner at the close of escrow ("Owners Charge") and the Wner'a actual share of taxes based on the "8egrtg.ted" tax bill ("Owners Actual Share"). If the Ovner'a Charge exceed8 the Owner's Actual Sharo, the h8aociation rhal l pay such excess to the Owner, and the Declarant shall immediately reimburse the Ass~ciatian for all such payments. If the Qwner's Actual Share exceeds the Owner' I Charge, the . Association shall immediately pay the amurrt of such excess to Declarant, and shall thereafter levy a special artsessment against the Owner and his Unit for reimbursenenc of such
paycent. Each Owner for him8elf and his succer~ors hereby covenants to reimburrc the amount of any such erceas to the
Assccirtiwt m.td ?grew that the. .;.q?rt of :he Association -0
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4.1s Transfer of Unit
Sale or transfer of any Unit shall not affect the assessment lien. However. the sale or transfer of any Unit pursuant to Mortgage toreclo8ure including the exercise of a power of sale or judicial foreclosure or acceptance of a deed in lieu of said fOreClO8UreS (collectively .Tran8fern) involving a default under a first Mortgage shall eXtingUi8h the lien of such asseasments a8 to payments which bbcame due and payable prior to such Tran8fer (except for a8aesrmnt liens recorded prior to the Mortgage). No transfer shall relieve such Unit from liability for any assessment8 thereafter becoming due or from the lien thereof. Where the mrtgagee of a firrt Mortgage of record obtains title to a Unit as a result of any such Tran8ferr such
!
i Mortgagee shall not be liable for the unpaid dues or Charge8 of
! the Association chargeable to such Unit which accrued prior to
the acquisition of title to such unit by such Mortgagee. Such unpaid dues of charge8 shall be deemed to be Common 8xpen.e. collectible from all of the Units including such Mortgagee. In a voluntary conveyance of a Unit tire grantee of the same shall be jointly and severally liable with the grantor for all unpaid asseqrrnents by the Association against the latter for his share
of the cOmmOn expenses up to the time of the grant or conveyance;"vithout pre judica-to-the yrantee' 8 right to recover from the yrantor the amounts _paid by the grantee xhhretor.
~ Hoyever, any Such grantee shall be entitled to a Statement from F the Association, setting forth tirr amount of the unpaid asseasments due the Association and such grantea shall not be
any unpaid assessment made by the Association against the grantor in excess of the awunr set forth in the statement; provided, hwever* the grantee s:?all be liable for any such assessmant becoming due after the date clf any such statement.
P
I liable for, not ahall the Unit conveyed by Subject to .lien for:
ESD OF ARTICLE 4 EhTfTLEU
NAIUTENANCE AND ASSESSMENTS
ARTICLE 5
DUTIES AND FOWERS OF TKE ASSOCIATION
5.1 Duties and Powers
In addition to the duties and powers enumerated in ita Articles and Bylaws, or elsewhere provided for herein, and without limiting the qenerality thereof, the Association ahall:
5.1.1 Haintain and otherwise manage all of the Camon Area (including, in addition, that area on the individual Lots located between the Common Area boundary and the exterior perimeter walls of each Building Element) and all facilities, improvements, furnishings, equipment, and landacaping thereon, and all property (real and personal) acquired by the Association. The Association's responsibilities'hereunder shall also include the maintenance and management of the mini-parks located on the Subject Property as well as certain special
Landscaped Areas') in and around the Subject Prqerty and-"" ~-__ adjacent property, as generally described and depicted on
Exhibit E attach4 hereto and by this reference made a part hereof. The Special Landscaped r.rrca include certain landscaped streeta identified in the Specific Plan.-. If at-any tima tha Association fails or refuse$. to maintain or manaqe the Special Landscaped Areas as provided berein, the City of Carlsbad may perform such duties (but is under no obligation to do so) at the sole cost and expense of the Association:
-... "kpndrcaye&tr-eett ..and-othcr landscaped areas (the "Special
-. .. .. . . .
5.1.2 Have the authority Lo obtain, for the benif it of all uf the Conmcn Area. all water, qas and electric services and refuse collections. at~c;, in addition, refuse collection for each Eletuber's Unit. Each Owner is responsible for obtaining and paying for all uacer, gas an' electrical services for his Building Elefcent:
5.1.3 Grant easemsnts where necessary for utilities and scwcr ldcilitics vvcr the Courtlot1 Area aid Lots LU YC.CVC the
Con~llor~ Area and the Units:
5.1.4 Haintain such policy or policies of insurance
as the Uoard deems necessary or doirable in furthering the purposes of aru protecting the interests of the Association and its Plenrbers: provided, hcxever, the Board shall make available to the Owners a ccrsplete inventory of inourance carried by the Association ad will notify all OWmrs of any ct.anqes in coveraqe that may affect the insurance needs of the Ourrers:
5.1.5 Have the authority to employ a manager or other sersons and to cmtract with independent contractora or managing acents to perform all or any part of the duties and re8yanaibi1ities Gf the Aasociation:
5.1.6 !lave the power to e8tablish and maintajn a working capital alld continqency fund from regular assessments in an amount to be determined by the Board:
5.1.7 Have the power a1.d duty, subject to the rights of the Xclarant as provided herein, to enforce the provisions of this Declaration by 'appropriate means, includinc without lir.ltation, the expenditure of fund. of the Association, the empiuys.ctlt of legal counsel and the commencement of actions:
5.1.8 Pay any real and personal property taxes ard other charqes assessed to or payable by the Association:
3.1.9 AJopt reasonable rules not inconeist.ent with
.i~'.. :':. ~~:.ii.Jtl, tb *\r?.iclw?, -:- he Bylaws rela! ipiy ?O the
ose uE i'le itr.notr ,uw and all !aci!.rtiee hegecn, c;nc: ... he r conduct uf Cuners and their ienants and quests with respect tu i
the Subject Property and other Owners: and
426
private roadways and parking areas related to the Project.
5.2 Haintenance of Project by Association
The Association shall provide maintenance and repair of all landscaping, drainage, flood control and parking facilities on the Comnon Area. The Association shall maintain the retention baninn which have ken con8tructed in the Comnon Areas throughout the property. The rrsponsibility of the Association for maintenance and repair ahall not extend to the cont and expense of repairs or replacement8 arising out of or caused by the willful or negligent act or neglect of an Owner, or his guests, tenants or invitees. The cost and expense of repair of replacement of any portion of the Conlmon Area resulting from such excluded item8 shall be the responribility of such Owner. The Association shall cause such repair8 and replacements to be made at the Ovner'8 .ole cost and expense and if an Owmr shall fail to pay for vuch repairs or replacements, the cost thereof (plus interent from the date of payment at the maximum 1.sgal rate) shall be added to the assersnents charyeable to such Unit and shall be pcyable to Lhe Association by the
I . . - " Owner "_ of such Unit. - ."
5.3 Association Easements
For the purpose oc performing the maintenance and management authorized by this Article or for any other purpo8e reasonably related to the performance by the Board of it8
responsibilities under this Declaration, the Association (and its agents and employees) shall have an easement over and onto all potticns of the Conmon Area, including, but not limited to, the Special Landscaped Areas.
f
5.4 Owner's Default
If there is a default by an Owner Zndar an Ownet's sublease tgrecment or under thc Master Lease, the Association and/or the Declarant shall have the right (but not the obligation) to cure the default for and on behalf of the Owner and at the Owner's sole cost and expense.
END OF ARTICLE 5 EHTITLEO
DUTIES AND POWERS OF TtiE ASSOCIATION
3 427
ARTICLE 6
UTILITIES
6.1 Owner's Rights and Duties
The right8 and dutien of the Owners of Units within the Project with respect to utilities shall be as follows:
6.1.1 whenever sanitary sewero watero e18ctric0 gas, television receiving, or t8lephona lines or connoctions, h8ating or air-conditioning conduits, ducts, or flues are locatad or installed within the Project, which connections, or any portion thereof lie in or upon Units owned by other than the Ovner of a unit served by said connections, the Ovners of any Unit served
by said connections shall have th8 right, and are hereby granted an easement to the full .extent necessary therefor, to enter upon the Units or to have the utility companies enter upon the Units in Or upon which said connection8, or any portion thereof lio, to repair, replace and generally maintain said connections as an& when necessary.
6.1.2 Whenever sanitary sawer, water, 8loctr. , "&alephope linea or connections are locatca or installed zithin the Project, which ~0nn8~ti0"8a~vo more than on. Unit,
the Owner of each Unit served by said connection rharl be ---- entitled to the full use and enjoyment of such portion8 of said connoctionr as&rvica hi8 Unit.
respect LO the repair or rebuilding of said conn81:tions~ or with respect to the sharing of the cost h8r80f, then, Jpon written request of one,of such Owners addressed to th Assaciation, the "matter shall b8 submitted to the Board, which shall decide the dispute, and the decision of the Board shall be final and conclurive on the parties.
6.1.3 In the event of b dfsput~~atveenr~o~~ith,, ... ..a. *.
I f
6.1.4 Each Owner shall at all times be solely responsible for the maintenance, repair, and insurance of his entire Building Element.
6.2 Easement8 for Utilities and Maintenance
Easements over and under the Subject Property (including, vithout limitation, the Special landscaped Areas) for the installation, repair, and maintenance of sanitary sewer, water, electric, gas, and telephon8 lines and facilitier, drainage facilities, walkways, and landscaping of the Subject Property, are hereby reserved by Declarant and its succtssora-in- interest and assigns, including th8 Asaociafion, toqetker with the right to grant and tranafer the same.
6.3 Association's Duties
Tho Association shall maintain all utility installation. located in the Cormnon Area except (Or those installations maintained by utility cotnpanien, public, private, or municipal. The Association shall pay all charges for utilities supplied to the Project except those metered or charged separately to the Units.
END OF ARTICLt: 6 ENTITLED
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ARTICLE 7
AICHXTECTURAL CONTROL
7.1 Architectural Amroval
Subject to the exemption of Declarant under Article 7.12 below, no buildieg, fence, wall, sign or other structure of any kind shall be c-ced, erected or maintained upon the subject property, nor .hall any exterior addition thereto or change or alteration therein be made uatil the plans and specifications shoving the nature, kind, shape, color, size, height, materials and location of the same .hall have been submitted to and approved Or diaapproved according to a standard of good faith discretion in writing as to harmony of external design and location in relation to surrounding strccturem and topography by the Architectural Control Committee ( 'Committee.) provided for herein. In the event the Conunittee, or its designated representativem, fails to approve or dieapprove the design and location within thirty (30) days after said plans and specifications will be deemed to have been dimapproved. All improvement work approved by the Cornittee shall be diligently completed. Any change8 or alterations to plans and specifications apprqved by the Committee, shall be remubmitted for approval as though it was a new sublnis8ion. Na approval shall be required to rebuild in accordance with plans and specifications previoualy approved by the Committee: not shall submix-lans and specificstiolra relating to normal maintenance (including, nut not limitea r0, - :epa" accordance with the original color scheme) be required.
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7.2 Lmdscapim Approval
No trees, bushea, Shfub8, or plants ahall be planted or installed until the plans and specification for the species and placement of any such trees, bushes, shrubs or plants, and the irrigation systems therefor, have been submitted to and approved or disapproved according to a standard OE good faith discL.etion LII uriLiog by chu Coclusi LLCC. !;;biel lllitns ils srPnitted shall show in detail the proposed elevations ana locations of said trees, bushes, shrcbs or plants and irrigatim system for maintenance. All such plans and specifications shall meet the requirements of the City of Carlabad.
7.3 Appointment of Architectural Committee
Declarant shall initially appoint the Committee, con:;isting of an odd nwber of members not less than three (3),
who shall remain in office until: (a) fifteen (15) years from the date of recording of this Declaration; or (b) all of the Units in all Phases have been conveyed by Declarant, whichever shall first occur: or (c) unless replaced by sanuone else desiqnated by Declarant in its sale ar.d absolute discretion. From and after such the or event, as the case may be, the Committee shall be appointed by a vote of the Board and shall br composed of three (3) or more representatives. tn the event of
the death or resignation of any member of the Committee prior to the cime vhen the Board is vested with the authority to appoint members thereof, Declarant shall have the riyht to appoint such member's SUCC~SLOC.
7.4 No Liability
Plans and apecifications shall be approved by the Committee am to style, exterior design, appearance and locations, and are not approved for enqineering design or tor compliance with zoning and building ordinances, and by approvinq such plans and specificationa nelther the Cornittee, the members thereof , nor Declarant asstunes lrability or reaponsibility therefor, or €or any defect in any structure constructed from such plans and specificatione. Further, neither Declarant .
the Cornnittee (or the members thereof) shall be liable in damages to anyone submitting plans or specifications to t' approval, or to any Owner aEfected by these restrictiona reirson of mi-ivakc in judqcment, represan:ation, express -17-
i. 429
5, implied, negligeace. or nonfeasance ariring out of or in
i connoction with' the approval or dirapproval or failure to
3 agrees that he will mot bring any action or ruit against
approve or disapprove any such plans or specification.. Every perron who submits plans or specifications, and every Owner
Declarant, the Cattee, or any of the members thereof to recover any such daYger.
i 7 .S Notice of Nonconpliance or Noncorr.pletion
i Notwithrtlnding anything to the contrary contained herein, after the expiration of thm later of one (1) year from the date of issuance of a building permit by municipal or other governmental authority for any improvements or one (1) year from the cornencement of COnStruCtiOn of any improvements within the Subject Property, raid improvement shall, in favor of purchasers and encumbrancers in good faith and for value, be deemed to be in compliance with plana and specification8 approved by the coamittee and with the rules and regulations established by the
Committee, unless actual notice of such noncompliance and noncompletion, executed by the Conunittee or it. designated representatives, shall appear of record in the office of the County Recorder of San Dieqo, California, or unlesr legal proceedings shall have been instituted to enforce compliance or
" ~..
7.6 Rules and Regulations: Guideline.
The Coliitt.8 may from time to ti-, in its 801. and absolute discretion, adopt, amend and repeal architectural and landscaping guidelines, rulrr, and regulations interpreting and implementinq the provisions hereof.
7.7 Variances
Where circumstances, such a8 topography, locat-ion' of property lines, lccation of trees, or other matters require, the
Camnittee, by the vote or written consent of a majority of the members thereof, lcay allow reasonable variances as to any of the covenants, conditions or restrictions contained in this Declaration under the jurisdiction of such Committee, on such terms and conditions as i-. Ahall require: provided. however, that all such variances shall be in keeping with the general plan for the iEprovement and development of the Sub ject Property. Such variances will be granted on a case-by-case basis, and issuance of such a variance shall not set a precedent for issuance of any other variance.
1.0 Appointment and Designation
The Committee may from time to time, by the vote or written consent of a majority of its nambers, deleyate any of its rights or responsibilities hereunder to one or more duly licensed architects or other qualified perrons who shall have full authority to act on behalf of said Committee in all matters delegated.
7.9 Review Pee and Address
Any plans and specification8 shall ke s.Jbmitted in writing for approval together with a reasonable processing fee as set by the Cmittee in its good faith discretion. The addrerr of the Camittee shall be such place aa tha Committee may from time to time designate in writing, Such address shall be the place for the submittal of any plana ar.d spacificationv and the place where the current rules and regulations, if any, of the Committee shall be kept.
7.10 Inspection
Any amber or agent of the Committee may from time to
tlme. JL any re .sonabla hour or hcurs and upon reasanable uot icm enter and inspect any property sualect to the juri3diction Of ,e
the Committee as to ita improvement or maintenance in ComplianC.6 with the provisions hereof. - 16-
i 8. . 7.11 General PrOViOiOnS '
The members of the COImittee ahall not be entitled to any -penration for services performed pur-8uant to thir covenant. me pavers and duties of the Committee shall ceam on and after fifty (SO) year. from the date of the recording of this Declaration or upon legal termination of thi6 Declaration. thereafter, the approval described in thi8 covenant shall not be required unless, prior to said date and effective thereon, a written instrument shall be executed and duly recorded by a majority of the Owners of the Unit8 in all phase. appointing a representative or representatives who shall thereafter exercise the 8ame pauers previourly exercised by the Committee.
7.12 Nonapplicability to Original Construction
The provisionr of this Article 8hall not apply to any construction, lanbcaping or other improvement8 by Declarant as part of the initial development of the Subject Property (a8 the same MY be expanded through annexation) or a8 part of the marketing program for sale of Units within tho Project.
END OF ARTICLE 7 ENTITLED ' ,
ARCHITECTURAL CONTROL "_ . .
"
t i
ARTICLE 8
USE RESTRICT IONS
8.1 Permitted Uses
Except a8 prohibited by this Article 8, thu Subject property and building8 constructed or to ba cmstructed thereon shall Le used for industrial, research, and development purposes as vel1 as for office and related commercial purposes so long as such purposes are consistent vith the Specific Plan and the zoning and other such applicable Ordinance8 of the City of Carlsbad, California, or such other governmental agency having jurisdiction, and so long as such purposes are consistent vith any restrictions and/or permitted uses referenced in any dec1ara:ion of covenanta, conditions, and restrictions of record or any other document of record.
8.2 NO Residential Use
No part of the Subject property shall ever be used or caused to be used or allwed or authorized in any vay, directly or ilrdirectly, for any residential or other non-business purpose ~r+ermi~eXhy-of Carlsbbd _aUptewlovec or guest requirements.
8.3 Nuisances
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No noxious, offensive, or highly hazardous trade or activity shall be carried on. upn, or within any portion of tlre Subject property or improvement thereon, nor shall anything be
done thereon which ray be, or my become an annoyance or public or private nuisance to other owners or to the neighborhood (including, but not limited to, vibration,, electro-aagnetrc or . electrc-ntecharical disturbance, radiation, air or water pollution, the unreasonable mission of dust, Odor. oos, smoke. fumes, noxious, toxic or non-tsxic matter, or noise) or which shall in any way interfere vitlr the quiet enjoyment of each of the Owners, or which shall in a:.; way increase the rate of insurance or cause a policy to be cancelled or not renewed, or
will impair the structural integrity of any improvement on tlre Subject Property.
0.4 Oil Drilling and niainq
No oil drilling. cil development operations, oil refining, yuarryiny or mining operations of any kind shall be permitted upon or in the Subject Property or any portion thereof nor shall oil Yells, tanks, tunnels or trtinezal excavations or shafts be permittee upon the surface of the Subject Property or any portion thereof or vithin five hundred (500) feet below the surface uf the subject Property. No derrick or other structure designed for use in boring for vater, oil or natural gas shall
be erected, maintained or permitted upon the Subject Property or any portion thereof.
8.9 An tenna8
No zehvision, radio, Citizen's Band, cr other electronic antenna or device of any type shall be erected, conntructed, placed or permitted to remain on any of the buildings conscructed on the Subject Property if such antenna or device is visible froa any viewing position outside of a building.
tlo animals, pets or poultry of any kind shall be raised, bred or kept on any portion of the Subject Property.
All rubilsh. trash ana garbaye shall la regularly removed fro111 the Subject Property and shall not be allowed to accumulate thereon. All outdoor refuse collection areas shall be completely enclosed and 'icreetled from access streets and
i t ad jactnt property by a block wall at least six (6) feet in
i height as approved by the Land Use Planning Manager of the City of Carlsbad. ~11 such areas shall have concrete floors, and shall be of sufficient size to contain all refuse generated by the business. These areas shall be no lear than six feet by
i eight feet in size. lo refuse collection areas shall be permitted between streetside and the building line.
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u.8 Vehicular Storage and Parking, Storage
Except for that area in Lot 23 of Unit 1 which is within the 200 foot easement to San Diego Gar b Electric recorded April 19, 1954 as document NO 49241 at Book 5205 page 416 and to the extent permitted by :he City of Carlsbad therein, no recreational Vehicle, trailer, zbmper, boat or similar equipment shall be permitted to remain upon the Subject Pruperty. There shall be no parking within the Subject Property other than temporary parking in areaa designated for parking, with the exception of the heretofore mentioned portion of Lot 23. Temporary parking shall mean parking of delivery trucks, service vehicles and other carpcrcial vehicles being used in the furnishing of services to the Owners and the temporary parking
Subject Property of vehicles belonging to or being used by
Owners, their employees, guests, agents, or invitee.. Parkiny areas shall be landscaped in such a manner as to interrupt or ~cH~~~aslrom.-vieu-fr~~ acce~sa strests aad adb properties. All outdoor storase (which shall include the ca1a-k~. "
, while conducting business or ellgaged in employment on the
parking of business-owned or business-operated notor velricles) 8halA be visually screened from adjacent streets and property. Said scr)cening shall consist of a aolid concrete or mnsonry wall :or a wall of other durable material approved by the Land Use Planning Planaqer of the City of Carlsbad) which wall shall not
be less than six feet in height. No storage shall be permitted between streetside and the building line.
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0.9 Outcoor Activities
All activities asscciated with the businesses being corrducted CII the Subject Property must be conducted colapletely within the improvements on the Stabject Property: provided however, usual and customary loadinq and unloading activities during tloraal business hours shall be excluded from this restrictioc.
6.10 Co!adition of an Owner's Unit
The Owner of any Unit shall at all times keep the Unit in a codd, safe, and sanitary condition and he shall comply in all respects with all goverrunent, health, fire, and police requirentetlts and regulations. Undeveloped or unpaved areas shall be rnaiutaiued free of weeds, rulsbish, debris or unsightly materials or objects of any kind.
8.1 1 Liability of Owners for Damaye
An m'ner of a Unit shall be liable for all damages t6 other Units or improvements caused by such Owner or any occupant of his Unit or iuvitee or acjeet or employee of such Owner.
8.12 Haximum Sound Levels, Etc.
None of the uses permitted within the Subject Property shll produce the follcuing:
0.12.1 Noise in excess of 70 decibels (American
a. For a Cumulative periofl of more than 30 aincltes
in any hour; or
b. Plus 5 decibels for a cumulative period ct wore than 15 minutes in any hour: cr
c. Plus 10 fecibels for a cumulative period OC Inure than 5 minutes in any hour: or d. Plus 15 decioels for a cunlt-Lative period oC wore tllan 1 minute in any hour: or
Starrdarcl for noise level meters):
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8. PlU8 20 decibel8 for any period of time.
8.12.2 Vibration, heat, glare, or electrical di8turbance8 bcyond the boundarie8 of the Subject Property.
8.12.3 Air pollution detectabl8 by th8 human senses without the aid of inStrUUIent8, beyond th8 boundaries of the Subjoct Prop8rty.
8.12.1 Emis8ions which endanger human health which can cause damage to animals, VegetatiOir or property, or which can cause spilling at any point beyond the boundaries of the Sub ject Property-
8.12.5 Odor detectabl8 by th8 lruman renses without aid of instruments beyond the boondariea oL the Subject Property.
8.13 waates
~ll wartcs diicharged into the wastewater diacharge system vi' 1 conform to th8 City of Carlsbad standards, a8 the sme may -a revised from time to time.
8.14 Billboards and Sign8
No billboards shall be Ccnstructed, installed, or maintainea on thCSubject"Proper€y.-Any-.ig~nn8rs4~or like.- displays which may be placed in or upon the Subject Property, except those approved by the Committee, shall be prohibited. No freestanding aigns shall exceed eight (8) feet in height. No 'sing of any kind 8h8ll be displayed on..any portion of the
Subject Property, except in strict accorddnco with th8 Sign Criteria established in Exhibit F attached hereto and by this reference made a part hereof, and then only after receiving
Committee apprwal.
8.15 Air Pollution Guidelines
All uses on the Subject Property shall comply with
applicable air pollution teyUlatiOn8 includinr; regulations for control of airborne dust during conatruction. 235
8.16 other Operations ana Uses
operations and uses that are nei::aer specifically prohibrted nor specifically authorized by this Declaration may be permitted in a specific Care if wrrtten operational plana aad specifications for auch operations ar..- ;Ittar, containing such information as my be requested by the Committee are submittea to and approved in writing by the Committee, which approval shall be based upon analysis of the anticipated effect of such operatiens or uaes upon other Units, and upon the occupants thereof, but shall be in the.sole and absolute discretion of the Commi tt ee.
On those ap8cial landrcaped streets identified in the Specific Plan, no loading or unloading shall be allowed which is visible from adjacent atreeta. On streeta other than ruclr spacial landacaped streets, atreetside loading and unloading shall bm permitted provided that the loading dock is set back at l8ast seventy (70) feet from the street right-of-way line. All loading areas shall be screened from adjacent streeta.
8.18 Metal Structures
No metal Itructures with metal sliainy or sheeting exteriors shall be permitted on tne Subject Property.
8.19 Screeninq of Equipment
Exterior canponenta of plumbing, procesainq, heatinq,
cooling and ventilatiny aystema (including, but not limited to, piping, tanks, stacks, Collectors, heatiny, cooling and -22-
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ventilating equipment, fans, blower:., ductwork, vents, lmvers, meters, ~~mpreascrs, ~otor8, incinerators, ovens, etc. 1 shall not k directly visiblo to the aurrounding area8 to the aatisfaction of the Land Uae Planning Manager of the City of Carlabad. Tranaforrer or terminal equipment shall be visually screened from view from streets and adjacent properties.
8.20 No Warranty of Enforceability
While Declarant has no reason to believe that any of the restrictive covenants contained in thir Article 8 or elscvhere in the Declaration are or may be invalid or unenforceable for any reaaon or to any extent, Declarant makes no warranty or reprerentation as to tho present or future validity or enforceability of any auch restrictive covenant. Any mer acquiring a unit on the Subject Property in reliance on one or more of such riatrictive covenants shall aasume all risks of the validity and enforceabiLity thereof and, by acquiring the Unit, agrees to hold Declarant harmlesa therefrom.
END OF ARTICLE 8 ENTITLED ',
USE RESTRICTIONS
ARTICLE 9 ,e.- 'e
I~su~Cg AND DESTRUCTION OF IHPROVEMEKTS 4
9.1 Insurance
Insurance ahall be maintained on the Project as f ollarr :
9.1.1 Ansociation Liability Innurance
The Association shall obtain and continue in effect comprehensive public liability insurance insuring the Ansociation, the Declarant and the agents and employees oi each and the Ownern and the renpective guests and inviters of the Owners against any liability incident to the use of the Cormnon Area, and including, if obtainable, a cross-liability endorsement inauring each insured againnt liability to each other innured, and a 'severability of interent* endorsement precluding the insurer from denying coverage to one Owner because of the neqligcnce of other Owners or the 8.saociation. The scope of the coverage shall include all other coverage in the kinds and amounts required by private institutional mortgage invastorn for project. similar in construction, location and
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9.1.2 Association Hazard Insurance
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"aditionaLly,. thclumsiation shall obtain an$ continue in effect a policy of fire and extended coveray-e insurance for no less than one hundred percent (100%) of replacement COS+ of insurable real and personal property uithin I the Common Area. Such policy may ala0 contain vandalinn and malicious mischief coverage, special form endorsement, stipulated amount clause and a determinable cash adjustment clause, or a similar clause to permit cash settlement covcrinq full value of the improvements on the Comron Area in the event of destroction and a decision not to rebuild pursuant to this Declaration. Such policy shall name aS innured the Association, for the benefit of the Owners and Declarant (so 1GnC.j a8 .. - ueclarant is an Owner of 3r1y units).
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9. L. 3 Additio-aL Association Insurance
The ASSOCiatiOn may purchase such other insurance as it may deem necessary, includiny without limitation plate-qlass insurance, workers' compensation, directors' liability, and errors and omissions insurance, artd shall purchase fidelity coverage against dishonest acts on the part of directors, managers, trustees, employees or volunteers of the Association uho are responsible for handling furuls collectecl from and held for the benefit of the Owners. The fidelity insurance shall name the Association as the inrurred. In connection with such fidelity ccverage, an appropriate endorsement to the policy to cover any persons who serve without compennation shall be added if the policy vould aot otherwise cover volunteerr .
9.1.4 ~nsurance Premiums
The coat of insurance policies acquired under Article 9.1 shall be a comvn expense to be included in the assentments levied by the AsSOCiatiOn. The acquisition of insurance by the Association shall be withorlt prejudice to the right of any Unit Owner to obtain additional individual ovner's inuurance.
9.1.5 unit Hazard Insurance
In addition to' the policies which the Association shall carry on the 2OmOt'i Area, each individual Unit - Owner shall obtain and continue in eCfect insurance coverage which shall be equal to or greater than fire and extended coveraye and stra1L be at Least eqr~rrL tu tllirt cuwwtlly required by private iwititutional mortgage investors in the! area in whic <
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tho Project ia locat8de including liability inaurance of not lesa than $2,000,000.00. The policy ahall provide, aa a minimum, fire and extended coverage insurance on a replacement coat basis in an wunt not less than that necessary to comply with any co-insurance percentage stipuiated in the policy, but not lesa than eighty percent (80%) of the insurabh value (baaed upon replacement cost of th8 Unit). Except for inaurance under the National Flood Insurance Act of 1968, a8 mended, and for deductibles, the afmunt of coverage shall be sufficient 80 that in the event of any damage or loas to th8 Unit of & type covered by th8 insurance, the insurance proceed. ahall provide at leaat the lesser of: (i! conpensation equal to th8 full amount of damage or loss, or (ii) compensation to the firat mortgagee under the mortgage equal to the full amount of the unpaid principal balance of the mortgage loan. Flood insurance shall be maintained if the Project is located in an area nubject to special flood hatarda. ,
9.1.6 Waiver of Subrogation; Notice of Cancellation
All property and liability insu,rance carried by the Association or the Owners shall Contain prov~isiona whereby the insurer waives rights of subroyation a8 to the Association, “office~irectors., and any Members, their guests, agonts and emplcyees. All policies of hazard ~naufanc8 minrcontain. or have attached the standard mortgage clause commonly accepted by private institutional mrtgage investors in the area in which the Uni-t~s are located. All insurance carried by the Association shall contain a provision requiring the insurer to notify Institutional lenders requeatinq such notice, at least ten (LO) days in advance of the effective date of any reduction in or cancellatio~r of the policy.
9.2 !)estruction of Improvementa
3.2.1 Reconstruction of Ijnit(s)
In the event of damaye to or destruction of any Unit, the Orner shall reconstruct the same a8 soon as reasonably practicable, and substantially in accordance with the original plans and specifications therefor. Each Owner $Ira11 have an easement of reasonable access onto any adjacent Unit for purposes of repair or reConstructiCn of hi8 Unit as provided in
this Subarticle.
9.2.2 Counon Area Improvements
If any of the Common Area Improvements are damaged by fire or other casualty, insurance proceeds payable to
the Association shall be used to rebuild or repair such damage substa~tially in accordance with the original plana and specifications therefor. Any excess insurance proceed8 shall be deposited to the general funds of tne Association. In the event the proceeds of the Asaociation’s insurance policy are insufficrcnt tc rebuild or repair such improvemanta, then, as soon as reasonably poasiblc, a majority of the voting pcwer of the Aasociation shall decide to either (a) uae fund. from its account or if necussary from levying a special assessment on all Unit Owners (or on those responsible for the dmaq8) to restore or rebuild said improvements: or (b) clear and landacape the Conuaon Area for US. as a community park, if appropriate, in which case excess proceeds shall, in the discretion of the Board, be ratained in the general funs of the Association or be distributed to the Ovners pro-rata. If the Board does not tske reasonably prompt action under this Article 9.2. any Elember may call a special meeting as provided in the Uylaws to discuss the matters contained herein.
9.3 Condemnation
In the event of any taking of any Unit in the Pro-Ject by eminent danain. the Owner of such Unit shall be enLltled to receive :he award for such taking and after acceptance thereof, he and his mortgagee shall be divested of all interest in the
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.' ast, Project if such Owner shal?~acate is Unit ar a rerult of auch taking. Ia the event of a taking by eminent domain of more than one Unit at the same Lime, the hasociation shall participate in the negotiations, and all propose the sathod of division of tho proceeds of roodemation, where Unitr are not valued separately by the coadaning authority or by the Court. In the event any Unit Owmr diragree8 with the proposed allocation, he may have the. matter .witted to arbitration under the rule8 of the American Arbitratiota Association.
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i EWD OF ARTICLE 9 ENTITLED
DESTRUCT109 OF IHPROVEMEWM
ARTICLE 10
10.1
MAINTENANCE BY UNIT OWNERS
Owner's Right and Obligation to Maintain and Repair
Each Unit Owner shall, at hi8 Soh c08t and expense, maintain and repair hi8 Building Element, keeping the same in good condition. In the event an Owner failr to maintain tho same a8 provided herein in a manner which the Board deems ncces8ary to preserve the appearance and value of the Subject Property, the Board may notify Owner of the work required and reque8t it be dome within fifteen (15) day8 from the giving of such notice. In the event Owner failr for carry out such maintenance within said period, the Board may cause such work to be done and may specially asses the coat thereof to such Owner, and, if necessary lien hi8 Unit for the amount thereof.
If any dispute arise8 concerning the provirion8 of
thi8 Article 10 which cannot be resolved under the term of this Declaration, then the matter may be submitted to arbitration under the rules of the American Arbitration A880Cia.tiOn.
I END OF ARTICLE 10 ENTITLED ."
HAINTENANCI BY UNLT OWNERS
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ARTICLE 11
GENERAL PROVISIONS
11.1 tnforcaent
Tho Association, ihclarant. 01: any Ovnor or the successor in interest of any Owner shall have tho riyht to enforce by proceedings at law or in equity. all restrictions, conditions, covenants. reservations. liens and charges now Or hereafter imposed by the provisions of thir Declaration or any amendment thereto. including tho right to provont tho violation of any such restri~tions. conditions, covenants or reservations and the right to recover damages or other due8 for such violations; provided. however. that with rospect to aaseasment liens, tho Association rhall have the exclusivo right to the enforcement thereof. Failure by tho Association or by any Owner to enforco any covenant. condition or restriction herein contained shall in no event be deemed a waivor of the right to do so thereaftor.
11.2 Negligence and/or Willful Himconduct
The cost of any maintenanco or repair iervices “-----------required_to..bogerformed by the Association which are caused by the negligence. neglect or-wlt+lul-mbrondu~#”owner, or .
his employees, guest8 or invitees shall be borne entirely by such Owner and will be a special assessment agrinat such Owner. and his Unit.
11.3 Sover8bflity
Invalidation of any one of these Cwenants. cmditiona or restrictions by judgement or court order shall in no way affoct any other provisions which shall remain in full force and effect.
11.4
The Covenants. cc.ndi+,ions and restricti0r.a of this Declaration shall run with and bind the Units. and shall inure to the benefit of and be cnforcedcle by the Association or the Owners of any Unit. their reapectrve legal representatives. heirs. succesaors and assigns for a ter.n of fifty (50) years from the date thia Declaration is recorded. after which time said covenants, conditions. and restriction. shall automatically be extended for succeasive periods of ten (10) years. unless an instrument, s igned by a majority of the then Owners, has been recorded, agreeing to change said covenants. conditions and restrictions in whole or in part.
11.5 Construction
The provisions of thia Declaration shall be liberally construed to effectuato its purp~so of creating a uniform plan for the development of a building COmpleX and CornDon Aroa within the Subject Property. The article and section headings hauJe been inserted for convenience only and shall not be considered or roforred to in resolving questions of interpretation or construction. If thero is any conflict among or between the Projoct Documonts. tho provisionr of thir Declaration shall provail; thereafter, priority shall be given to Pfo~ect Documents in the following order: Articlea: Bylaws: and rules and regulation8 o€ the Association.
11.6 Amendmentr
Except as otherwlae specifically providutl herein, thio Declaration of Covenants, Conrlitions. and Restictions may tie amended only by an instrument in writing signed 1Jy not less than seventy-five percent (759) of the voting pwer of the membership of the Association and, Eurther, this amendment provi’rion shall not be amended to allow ainendments by the assenl or vote of \era than revcnty-five percent (758) of the votlng - 28-
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power of the membership of the As ation. Any amendment must
be properly recorded. No amendment to Article 5.1.1 Or tO Article 11.15 shall be valid without the prior written consent - to suctr amendment by the City of Carlsbad.
11.7 Ftortqage Protection Clause
No breach of the covonant8. condition8 Or rcntrirtiona herein contained in thi8 Declaration, nor the enforcentent of any lierr provisions herein. shall JcLeot or render invalid the lien of any first Mortgage (meaning a Mortgage with first priority over any other Mortgage) on any .Unit made in good faith and for value, but all of said covenants, conditions and restrictions shall be binding upon and effective against any Owner whose title t8 derived through foreclosure or trustee's sale, or otherwise.
11.8 Singular Includes Plural
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whenever the context OC this Declaration requires same, the singular shall include the plural and the wrrculine shall include the femin&nc.
" "" 11.9 Nu isance
The result of every act or omission. whereby any provlsicn, cordition, restriction, covenant, easement or reservation contained in this Declaration i8 Violated in whole or in part, is hereby declared to bo and conrtituter 8 nuisance,. and every remedy alLa*ed by law or equity against a nuisance. either puklic or private, shall be applicable against every suctr result arid nay be exercised by tlre Declarant, Comnittee, the Association or any rhner. Such remedy shall be deenled cumulative and not exclusive.
11. LU Encroachnlcnt Easements
Each Unit witlrin the Subject Propetty is hereby declared to have an ea.;ement over all adjoining Units and the
Comtnn Area Lor the purpose of accommodating any errcroaclrment due to engineezirry errors, errors in original. cm.structiot1, settlement or shifting of the baildinys, or any other cause. There shall be valid easements for the maintenanc8 of said encroachments as lony as they shall exist,. and the rights and obligations of Owners shall not be altered in any. way by said etrcroacluscnt, settlemetrt or shifting: provided, however, that in
no evetrt shall a valid easement for encroachment be created in favor of an gwner vr Owners if said encroachment occurred due to the willful misconduct of said Owner or owners. In the event a structure is partially or totally dlstrcycd, and then repaired or rebuilt, the Owners of each Unit agree that minor encroachments over adjoining Units or Conmon Area sturll be permitted and that there shall be a valid easement for the maintenance of said encroachments so lony as they shall exist.
11. I1 Nonliability of officials
TO tlre fullest extent permitted by law, neither the Eoard, the Cormlittee, and other committees of the Association c3r any member of such Board or any cunnlittee shall be liable to any Member or the Association for any damage, loss or prejudice suffered or claimed on account of any decision, approval or dis- approval of plans or spccificaticns (whether or not deEective), course of action, act, omission, er.ror, negligence or the like matle in qood faith within which such Dcard, colnmittees or persons reasonably believed to be the scope of their duties.
easements for utilities, sewage and drainaye. (including, without limitation, non-exclusive easements for drainasa over the Subject Property leading to the retention basin on the Subject Property), ancl such easements shall be appurtenant to and shall pass with the title to every Unit., subject to the followiny provisions s
(a) The right of the Associdtion to establish rules and regulations pertaining to the use of the Coamon Area; and
(b) The right of the Association to suspend the votinq rights and right to use the Common Area by an 3wner (and
Iris guests, clients, and invitees) for any period during which
any asnessment again8t his Unit remains unpaid and delinquent: and for a pcricd not to exceed thirty (30) days from any single infraction of the rules and regulations of the Association, provided that any suspension of such voting rights or riyht to use the Coauaon Area, except for failure to pay aSSeSSmmt8, shall be made only by the Association or a duly appointed committee thereof, after notice and hearing given and held in accordance with the Bylaws of the Association.
11.L3.1 Each Owner, tenant Gi occupant of a Unit shall comply witl: the provisions of the Project L)ocun.ents and
n 11 ciecisions and resolutions of the Association Or its duly authorized representative, and failurv to comply with ally such provisions, decisions, or resolutions, shall be groul.ds for an actioli tu recover sums due, for damages (including costs and
n tturneys' fees 1 , and/or for kn junctive relief. A1 1 agreelnemts
111d <.iete:minaticrrs lawfully made by the Association ifc accsrdance with the voting percentages established ill this :~cclarat~~~~ or in the Uylaws, shall be rleenled to be bindiny OFI all .XIIL!:S cf lmits, their successors and assigrls.
11.13.: Any arjrert:len: for the leasiny, SAJ- laaslnq, liceusiny OL- assig1:rerrt of a Unit (hereinafter in this
Article referred to as a "lease", the person occuyyilrr) the Unit
UII~CC such a lease is hereinaf er referred to as a "lessee" slral 1 vrvvide that the Lernls of such least shall be subject in
all resptcts to the provisions of this Declaration. Any Uwner
wlrr; s!lsll . ISC hrs Unit shall be responsible for assuring cc:r;pIion;.c. :-y suct. (Jwner's lessee with any lease, th:s iJecloratlon. the Articles, the Bylaws and the Associiitions's rules a114 reyulations.
1 1. 14 Construction By Declarant
Ncthins in this Declaratim shall limit the riyht OC Declacant to alter the plat1 of development, cr 50 cO:iStruct such additional improvements as Declarant deems advisable prlor to corq~leti~, of improvements upon and sale of the entire Fro ject.
Such right shall include but shall not be limited to +retting, constructing and nlainrajning on the Subject Property such structures aid displays as may be reasonably necessary for the conduct .>f t9e business of completiny the work and dispositrq of the same by sale, lease or otherwise. This Declaration shall not limit the riaht of Declarant at any time prior to acquisition of title from Declarant to establish on tlre Subject Property additional licenses, reservations and rights-of-way to itself, to utility companies, OK to utt.era as may from time to time 'oe reasonably necessary to the proper developmellt arrd
*l~r:~u#:..nl rnT thc I'rcBjcct. lmc1,~ci~n.t ~l~-:crves tlrc rilJllt to altar
Its cu~lstructior~ plaus and designs bs it deems appropriate. I'he
or succ~ssors tu all or part. OF said entity's respective ihtrrost in tho Project, by 811 express assignment incorporated in e recorded deed or lease, as the case may be, transferring
suct. rnteres: to such successor. ~rclarant shall exercise is
rights. colltaiueu in tllis provision in such a way as not to
unrzasor1au:ly int.:rfere with the "!ember's rights to use alld e11 JC the SubJect prq'er "y.
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f riql,ts of Declarant hereunder may be assigned to any successor
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! 11-15 Indemnification cf City of Carlsbad
Declarant agrees to indemnify and hold the City or' Carlsbad harmless from and against !I) liability for persona: injury, (2) liability for praferty damacja and (3) liability resulting from judgements rendered in inverse condemnation actions. This indemnification shall apply to the foregoing 'types of liability which are caused by or result from (1) the Operation of the Palomr Airport, (2) aircraft Using Palcnnar Airport or (3) the city's approval of the Final Map for thi8 Project. This indemnification shall apply to that portion of the Project located within the FAA "clear zone" or "Crash zone"
as identified on the Enviro;1mental Impact Reprt (EIR 61-61 prepared in connection with Declarant's application Lot a Final Map for the Froject. This provision shall be binding upon and shall inure to :he benefit of Declarant's succesors-in-i~terest, transferees, and assigns. Upon the transfer or asaignment of the property makir.9 up the Project, Declarant shall be ralievecl of all obligations, duties, responsibilities, and liabilltien imposed upon it by this indemnificatim.
this 3cclaratio7 on 4 1986.
The undersigned, being the Declarant herein, has, executed
.. - TP;RLSaAD-AIRPO- = ." - . Califortrla limted partnership
Byx CW1t.i:; iTY ~~LSCJLHCES CORPORATL*>N, a Nevada corporation
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STATE OY CALIFORNIA 1 1 COUbl'FY OF 1 .a.
1986 before me, the
to ne oa the basis of satisf who executed the within instrument as and ,!! , on ?ahale o€ COHMUNITY
'RESOURCES CORPORATION, a Nevada corporation, the corporation that executed tha within instrument on behalf of CARLSBhD
pattnerahip that executed the within Fnatrument, and acknowledged tome that such corporation executed the same a8 partner and chat such partnership executed the same.
AIRPORT CENTRE, a California limited partnership, the
LOTS 1 THIEDUGH 25 INCLUSIVEI OF CARLSBAD TRACT NO. 81-46 UNIT ,'I
NO* 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO0 STAT& OF
CALIFORNIA0 ACCORDING TO MAP THEREOF NO. 112870 FILED It! TliE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY*
EXCEPTING THEREFROM 50 PERCENT OF ALL OIL, MINERAL, GAS, AND
OTtiER HYDROChKBON SUBSTANCES BELOW A DEPTH OF 500 FEET IJNDER TlIE REAL PROPERTY DESCRIBED HEREIN, WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESEWED BY ChRLSBAD PROPERTIES, A PARTNERSIIIP, IN A DEED RECORDED JULY 5, 1978, RECORDER'S FILE NO. 18-279136
c. '
446
EXHIBIT C '
LOTS 26 THROUGH 49 INCLUSIVE OF CCIRLSBAD TRXT NO. 81-46 UNIT NO. 2, IN THE CITY OF UwsBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO CUP THEREOF NO. 11288, FILED IN THE
OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY.
EXCEPTING THEREFROM 50 PERCENT OF ALL OIL, IIINERAL, GAS, AND OTHER HYDROCARBON SUBSTANCES BEWW A DEPTH OF 500 FEET UNDER THE REAL PROPERTY DESCRIBED HEREIN* WITHOUT THE RIGHT OF SURFACE E;NTRY, AS RESERVED BY CARLSBAD PROPERTIES* A PARTNERSHIP, IN A DEED RECORDED JULY 5, 1978, RECORDERS PILE NO. 760279136.
LOTS 50 TliROUGH 76 INCLUSIVE OF CARLSBAD TRACT NO. 81-46 UNIT
NO. 3, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,.ACCORDING TO PUP THEREOF NO. 11289, FILED, IN THE
OFFICE OF COUNTY RECORDER OF SAN CIEGO CW#TY. ,,
EXCEPTING THEREFROM 50 PERCENT OF ALL OIL, CIICERAL, GAS, AND --OTHER-HYDROCARBON.SUBSTANCES UELOW A DEPTH OF 500 FEET UNDER THE
REAL PROPERTY DESCRIBED HEREIN, WITHOUT"RIOm-SURfACE ENTRY, AS RESERVED BY CARLSBAD PROPERTIES, A PARTNERSHIP* IN A
DEED RECORDED JULY 5, 1970, RECORDERS FILE NO. 78-279136.
. ..
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PIRST To
C-8r COWDITIOYS AND
O?
CARLIBAD AIRPORT
I TEIS PIRST dated November 198dr is made to the DeChr8tiOn of Covenantsr Conditions and Rertrictiona sf Carlsbad Airport Centrer recorded September 12# 1986 aa :ocument number 86-401456 with the 8an Diego County ReCcrderr ("Dec18iationm) pursuant to Section 11.6 of said Declaration by not less than 75% of the voting powr of the memberrhip of the Association.
1. Exhibit B is deleted and replrced by the Exhibit B
2. Exhibit D la deleted and replaced by the Exhibit D
3. Sectlon 2.2.2 Ir deleted 8ad replaced us fo1lovr:
attached hereto-andincorporat~his~eferenc.,
attached hereto and incorporated herein by this reference. 2~. ;a7. b.
"2.2.2 Comaon. Area. c
That portion of the Subject Property described on 8ttaChed Exhibit B . . ~ .~ .. shall be 'Common Acmer which includes 'Common Area fkts'r titla to which shall be held b the Association as Well as that portron of individual Lots which is derignatad on Exhibit B 18 ColPlwn Area for the urpor+r of aaintenance by the Associatron. No easementr use or en- croachcent rights rererved by Declarant herein rhall in any manner hinder or interfere with the individual Lot oun- era' use of its Lotr including uae of Common Area maintained by the Amocia- tion, within such Lot and no encroach- ment unto any tot shall be allowed ex- cept for drainage uses. The Coaon Area (which includesr without limitationr the ColPsIon Area Lots and the iaprovements thereon) shall be operated and main- tained by the Association for the use and benefit of Owners of Unit8 in the Projectr subject to rearonable rules and
2022
regulations eMCt8d according to th8 By- laws. mcept aa noted above and unlesa otheruise restricted, each Unit Omn8r ~ay use the Cmn Area in accordrnc8 vith the par ses for which it La intend- ed without hEdering th8 exorcis8 of or encroachiag upon tbe rights of any 0tb.r Unit Owners. Declarant shall reserve and hereby reserver in itself and it0 aucceasors and assigns, as well 8s in the Association and in 811 other Omersr easements over and onto the Comon Am8 and over 8nd onto tho individual bot0 Up to the exterior perimeter walls of each Building element Cor drainage and for ingress to and egress from tha Coaon Are8 and such portions OC th8 individual Lots for the purpose of completing improvements thereon or for the p.rfOtW ance of aecesrary maintenance, landscar
manner interferes with the US~ by 8ny Unit Owner of itr Lot or the improve- ments located thereon. Declarant Shall also reserve and bereby reserve0 in itself and its succersorr and aaai9LLlr for'a five year perid. from the dato .OF- the initial reqord8tion of thir DeCht8- tion in the off id81 Recores of th8 8.n Diego County, California Recorder, 8
8. . ~" ~ ~" .. right to reasonatdy alter or modify the
sire and boundarier of the Phase I Comaon Are8 Lots or other Common Are8 consistent with Lhe proper development of the Property described on-rtt8ched Exhibits A, B and C..
4. Section 2.2.1 is modified by addition of the
following at the end of the last renttnce:
i ing8 and repair workr provided such ~"------------lngceu"and-agre~~nhdraiaags in no ..
'The above interpretation shrll b. used for the purpose of applying these declaration8 only and Cor no' oth8r r earon..
5. Section 4.4.2 is deleted and replaced with the following:
O4.4.2 my other charge rerson8bly deaig~ted as a special assersment in thi. ~Cl8K8tfOl1, the Articles Or Btl8VS.
-2-
60 Section 4.5 is mod1fl.d by additlon of the following parenthetical 8fter the clause ' . . the coat of construction . ."I
.(other than initial construction which is installed by Declarant).
7. Section 4.15 is modifled by deletion of the wed
8. Section 6.1.1 is modified by the addition of tho
.firatm as it twice appear. in the Section.
following after the last aentencer
'The awve easements shll be limited to aream within rpecifled easement areas exinting prior to transfer of the Unit Lot to a third party and in no event shall gi8nt any artyr including tho Declarantr the r P ght to eetablirh aew easements for any purpose across any Lot not owned by Declarant or the Aasociation.~
9. Section 6.2 is modified by addition of the add following -aftrr-the-lpst.entora.1____ 1 "
j .The above easements aha11 be limited to areas within specified easement are8r existing prior to transter of the Unit Lot to a third patty and in no event shall grant any p8rtyr including tho Declarant, the right to ertablish new eascmenta for any purpose across any Lot not owned by Declarant or the A88OCiatlOn. I)
LO. Section 9.2.1 is modlfled by addition of the following after the last sentence:
"Reservation 3f easement rights to each1 Owner ('Repaiding Owner') for purporem of repair or reconstruction of its Unit ('Repaired Unit') onto any adjacent Unit ('Easement Unit') owned by 8nOthOt Owner ('Easement Owner') shall be llmlted so that it does not unreasonably interfere with raid Easement Unit, or hsnent OYner'a use ot its Lot and ahall require such Repairing Ovner to Mka any repairs made necessary t:, the Easement Ouner'O Lot and unit resulting Cror or by the Repairing Owner's ure of said Easement Unit..
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11. Sectlon l1.2 is r0difi.d by addition Of tho follouing:
*In no event rhall thim 8octior be deemed to creato any contractur8l liability on any rach Ouaer for tho above acta.'
,s
t
12. Section 11.7 la diflod b dolotion of the word "Lirstm and deletion of tho parenthet 1 cal claure '(meaning a Mortgage vith Lirrt priority mor any othor Uortgage)..
continue. In full Lorce and effoct.
executed by a11 the owner8 of tho Property dercribed therein.
In a11 other rerpectr the Declaration ir affirwd rnd
IN WITNESS WEERDO?, thir ?irrt AwDbOnt h.8 been
011 ted: CARLSBAD AIRPORT CEMTRS .. . " .
a California Liritad Partnership
Dated: Ya.luatv 15. 1987 OPUS ~WORATI~ a ninneoota cor ration authorized to do business p" n the State of California as oms SmTmItST -I
TU18 DamHENT IS To BE SIGNED BtIORE A NOTARY PUBLIC. PLEASE SIGY YWR EUCTLY'AS IT IS TYPEURIITRI.
SCOICAC 02:ll:Od:86
-4-
4 STATE OF MINNESOTA)
COUNTY OF HENNEPIN) i
2
1 SI.
C 2025
The foregoing was acknowledged before me this 15th day . of January, 1987, by GENE HAUGWJD, President of Opus Southwit Corporation, a corporation under the lava of Minnesota, on behalf of the corporation. 1
1
i U *"-e-.-"
t 1-
"" - - ( SEAL 1 " - "- Mx.:"Li 3"v ' ~,- ""Li
f
i
n
E I-
I Lot No. Gross AC. @ of koa of Unit No. 1 Building Lots
8 9 10 11
12 13 6 14 1s
.16 17 18 19 20 21 22
23 24 2s
4 -312 Open Space 7 0648 2.SS8 3.848 5.188 3.334 0p.n Space Open Space 1.498
1.44.2 4.4S8
4.308 4.746
4 -732
3.127 2.713
S.401a -. ,. - *.
:9.4618 3.164@”
4.7608 6.4188 4~1244
1.853) 1.784@ S.SLS8 5.329@ S.871a 5.8S4t . 3.868) 3.3S68
Total Unit No. 1 I 80.836 Gr. Ac. (excluding open rpacr and straotr 1
I i
1 30, LO86 . Job No. $010 ;
e
i i
t ACREAGE ANALYSIS - UNIT WO. 2
I'
i Buildinq Lots
1 CARLSBAD AIRPORT CENTRE
Lot No. Cross Ac. 8 of Arm. of Vn1.t No. 2
i r 5 . 105 - 1.1148
5.64s 8oS308
2 A93 3.3148
2 .OS8 L 3.l228
' S.3048 3. $10 4 .I28 ' 6.6918
h993----"". 4.5238
2.913 454oze 5 SO3 8.3168 2.444 3.6938
3
."
2 . 2.81 3.4418 2 e794 4'.2229 3 .892 s. )an 4 .6.45 .. . 7.0198 2.879 4.3448 1.677 2.5348 1.S30 2.3128 -
#*
j 45 1.488 2.2488 ''
41 1.263 1.9088
I 48 2 . 158 3,2618 .19 3.234 4 .a878
1 46 . 1.S46 2.3368
-. ,.
g
30. 1986
Lot NO.
i" , 2089 r .
Grors Ac.
so -5%"- 52 . 53 54 ' 55 56 * 57 ' S8 59 60 61 62 63 64 65 66 67 68
6 9. 70 71 72 73 74 75
2.S82
4.04s 1.862 2.394 1;988 1 '643 2.119 2.080 3.383 2.662 Open Space 1 .(IT 2 ~15. 2.615 2.725 3.110 2.102 3.161. 2.740 2.749 8. S56 4.18s 12.699 1.418
* -0
6 348
* of kea of Unit No. 3 Building Lots
3.0798
4 A238 2,2208 2.8548 2.3708 1.939Q 2i52?Q 2.4808 4 t2728 3.174)
."2,993.
i.7598 .' 2.1601 3 . me
-
3.2498 3.7088 2 . SO68 3.7698 3.267a 3.2788 10.2028 4.9908 1s .1429 '1.691t 7.6088
Total Unit No. 3 : 83.866 Cr. AC. (excluding open space and atteats1
!. ACREAGE ANALYSIS - UNITS 1. 2 L 3
Gra.8 Ace 8 Of kea of Unit. 1,2 L 3 Building Lots
i.949 1.7108 6 .155 2.6668
3.515 1. 5228 3.160 1.3698 3.321 1.4388 2.831 1.2268 -3.933- i. 7OIt 4.312 1.8948:
7.648 3.3128
2.558 1.10m 3.848 1.667) 3.188 .. 2.2478 0 3 -334 1.4448
Open Space -
Open Space - Open Spa- 1.498 0 . 6498
1,442 0.6248
LI
4.4sa 1.9318 4.308 1.0668
4.746 2 *OS68 4 I 732 2.0508
3.127
2.713
. -~
@pen Space Open Space 3.105 S.645
2.193
2,0S8 3.s10 4.428 2.993 2.913 S .SO3 2.444
1.3548
1.1758 - -
2.2118 2.4458 0.950) 0.191) L.StO9 , 1.9188
1.3008 1.262) 2.3848 1.0S8I
r
.
Lot no. 1.
Grorr Ac.
. 38 39 40 41 42 : 43 44
, 45' 46 47 48 - 49 ! 50
~ 51 i s2
i 5.3 54
! $6
~ $7 sa 39
' 60
~ 61
I 62 63 64 65 66
, 67
6% 69 70 71 .72 73 74 75
76
~ 55
2 -2 2.1 3.6 4.6
1.6 10s
1-4 1.3 1.2
2.11
351 2 -1
2.5 2-5 4 .a 1.1 2.3 1.9 1.6 2.1
'2 .o 3.s 2.6
1 .I 2.3 ? .6 2.7
3.1 2.1 3.1 2.7
2.7 8.S 4.1 12.6 1.4 6.S
0p.n
0-a
lace
I Total Acreage: 230.877 GS. AC.
EXHIBIT
DtCLA1UTIOR 0. 0. ..
PMBL XI o. CARWIEII~) axmm c~l~ll
WSDITIOMS AXD ~EBTRICTIO~~~~ CIWIDA~ ~IRWRF CIIL?I, WRBOASiT TO DZCLARATIOI 0.
SAll DItOO C0-n ClllJIOIllllr
HIS DECLlWTION OF ANNEXATION i8 &dm 8nd ant.- into dim
ay of October, 1990 by CARLSBAD AI- CtllTRt, a ~Califorlli8
d pertner.hip, hereinaftor retarrod to a. Wmalarantg,
nt to Section 2.4 of that certain Declaration of Covonapta,
10118 and Restriction., Carl8bad Airport C.ntre, 6.n Did
, California an recorded in the Official Rocordm of. mid
*'
on January 28, 1987 a8 In8tt"nt No. 17-041040, he,ro+MftCr
d to am the voclarationm.
IEREAS, Declarant de8ire8 to awx &at 'cutcrh ma1
cy a. dcssribed in Exhibit mP to thr Declar8tion ud am
I:
:ate of California,. according to Map
~unty, with Lots 33 and 34 of th6 foregoing de8cription )u also being described a5 Lot .Am of Adju8tunt Plat B. 395 executed by the City Engineer of th. City of
Irlsbad, dated January 31, 1990 and rocordod nard 5,
~90, in the Office of the county Recorder of 8an Di-0 unty am In8trurrent No. 90-116039.
i I Declaration of Annexation - Pag0.1
ion). . ,
~clarant hrraby reaffirm all of tho prwimionr, Of
a8 recorded and a8 8uch now affoct tho Phau I1
wlaration and oach and evory tam, prokidon and
If, im horeby incorporated horrin by thim roforonao.
.d b. to the Doclaration for 8 complato
! the declarations, liritations, covenantm,
triction!, and eaaomentm which affoct and kcom
Doclaration of Annexation - Pago 2 .
e .e' I' *' .. ..
t mident of bntra kvrrlogwnt
(or'pkvtd to lee-oh the basis oi satiofactbry evidence) to bitb. 'me penon who execused the within instrument a8 premidant of .
CEXE D~ZLO~ENT, a California corporation, who being by I). duly ~f-n, deposed, acknowledged and said: Said Dean Greenbarg is the Wksident of Centre Developmentf the .corporation the'rein nand, vSi& executed same on b'ehalf of CARLSBAD AIRPORT ASSOCIATES, th. parpership therein named as qeneral partner of CARlSBAD AIRPOm' CESCitE, that sa id CARLSBAD AIRPORT ASSOCIATES executed the san o the sole general partner.of CARLSBAD AIRPORT CENTRE, a California .. limited partnership, the partnership that executed the vithin instrurcnt and that said CARYSBAD AIRPORT CENTUE executed thr
(notsry 8-11