HomeMy WebLinkAboutPIP 95-03; Exhibit Art Lot 43; Planned Industrial Permit (PIP) (2)I . E..
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COVENANTS, CONDITIONS, AND RESTRICTIONS
CARLSBAO AIRPORT CENTRE
.- SM DIEGO COUNTY, CALIFOR#IA
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Article Title
7.4 1po Li8bility ......................... 7 . 5 mtice of Woncompliance or !macapletion ........................ 7 e6 -1.8 and Reguhtionm; Guideline8 .... 7 . 7 Varirmcem ............................ 7.8 Appointaent and Designation .......... 7.9 Reviu Pee and Addremm ............... 7 -10 Inaption ........................... 7 ell General Provisions ...................
Coamtruction .........................
8 . USE REslR1n1oNs ..............................
7.12 maapplicability to OrLginal
8.1
8.2 8.3 8.4 8.5
8.6
8.7 8.8
8.9 8.10 8.11 8.12 8.13 0.14 8.15
8.16 8.17
8.10 8.19 8.20
PeLlitted Ueam ....................... . Ho Remidential Use ................... ............................ .............. Oil Drilling and Mining hntennam ............................. Anirrrls ..............................
V8hicul.t Storqe and Parking: Rubbimh. Etc
storage ............................... outdoor Activkties Condition . of an owner's unit ......... Liability of Owners for Damage ....... Maxirum Sound Levels. Etc ............. Wastes ...............................
Billboards and Signs ................. c;i r Po 1 lu t ion Guide 1 ines ............. other operatibns and uses ............ Loading Restrictions ................. Metal Structures ..................... Screeniny of Equipment ............... No Warranty of Enforceability ........
UUi8W&Ce8
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9 . INSURANCE MtD . SSTRUCTION OF IMPROVEMENTS .....
9.1 Insurance ..........................
9 -2 Destruction of Improvement a .......... 9.3 Condemnation .........................
11.1 11.2 11.3
11.4 11.5 11.6 11.7
I l.8 11.9
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11.12 11.13
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enforcement .......................... Yegliqence and/or willful Misconduct . Severability .........................
rea ................................. Cmmtruction .......................... Amendments ............................ Mortgage 'Protection Clause ............ Singular Includes Plural .............. Yuisance .............................. encroachment Eaaementr ................ tionliability of Officials ............. owner '8 Earement of En joywent .........
ConstrucLion By Declarant ............. met's Compliance ....................
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DtCtARATIObt OF
Cm, WDITIOYS AND RESTRICTIONS
-BAD AIRPORT CENTRE
SAY DIEGQ aWWTY, CALIPORNXA
THIS DECLARATIOY 0 ("Declaration'), is made 00 , by CAMSBAD AIRPORT C ('Declarant") with reference to the following facts:
A. Declarant ie the fee wnef of that certain real proporty 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 this Declaration
( the "Subject Property').
8. Declarant ha8 developed and improved or is in the process of developing and improving the Subject Prqmrty by subdividing and constructing thereon certain improvaments which Declarant is .Parkati- as a planned development according to the use8 set forth in Article 8 hereof.
. .c: C%W The development shall b:: generally known as "CARLSOAD AIRPORT CENTRE' and sh.11 k herei:raftar raterred to as the "Project". ~ach Owner shall receive fee title to his individual Lot and the iaqrovements thereor (collectively the '"Unit") a8 well as a ntenllsership in CARLSbAG AIRPORT CLNTRt;, O*.netr Association, a California nOnprOfi' mutual benefit corporation, which cor,pration shall own fee title to and/or be responsible for the Common Area (a8 such term is hereinafter de€ined).
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0. Declarant intends by this document to iupose upon the Subject Property matually beneficial restrictions under a general plan of improvement for the benefit oL all of the Units and tlre Owners thrrmf.
Declarant hereby declares that the Subject ?rGperty and all improvements arectd thereon shall be held, conveyed, mortgaged, encumbered, leased, subleased, used, occupied, sold, assigned and improved, subject to the following declarations, limitations, cwenaats, conditions, restrictions, and easements, all of which are for the purpose of enhancing and protecting the value and attractivenesa of the Subject Property and a11 improvements erected thereon, and the Project, and every part thereof, in accordance with the plan for the improvement ot the Subject Property and the division thereof into a planned development. All of the limitations, covenants, condition., restrictions, ami .as-nts shall constitute covenants which shall run with the land and shall be perpetually binding upon Declaralt and its successors-in-interest and assigns, and all parties having or acquiring any rlght, title, or interest in or to any part of th. Subject Property, and all improvements erected thereon, or the era ject.
DE?ILIITIONS
1.1 'ArtiCleS' shall mean and refer to the Articles of Incorporation of the Cu8ociation as amended fror time to time.
1.2 'Aasea8ment. shall mean and refer to that portion of the cost of mintaining, improving, repairing, og.rating, and
managing the Subject Property and all improvements erected thereon (except for that part of each Owner'. building as set forth herein which shall bo the Owner's reSpOn8ibility which
a8sessaent is to k paid hy each Unit as determined by the AS8OCfatiOn.
1.3 mASSOciatiOn' ahall mean and refer to CAHLSBAD AIRPORT CENTRE. OWlJERS ASSOCIATION, a California Nonprofit Hutual benefit Corporation, the members of which 8hirll be the
Ownera 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 refor to the building located upon any individually wned Lot in the Project.
.1.6 .Byl" 8h.U aea#h and *.efer to tha Bylaws of the Association as axended fraa timu ta time. .w
1.7 'Common Area- shrll u3an and reter to all real property rnd the improvements thkreon, including, without limitation, any private storm draiq or sewer systems, retention basins, pcrkuays. entries, natural canyo:r arras, ail fill and cut slope, adjacent to public streets, Special Landscaped Areas (as defined in Article 5.1.1 hereof 1, internal private roadways and parking areas, mini-parks, median strips, greenbelts, privata utilities, open space ." f open apace easements, trails , bike paths and bike lanus , u 1 *, signs . monuments and appurte~rancer wned, leased, or to be maintained, from time to time. by rhe Association for the common use and enjoyment of the Hemberr, dhich shall be that certain property described on Exhibit 0 attached hereto and made a part hereof. Any
additional property to be designated aa xmion Area' ah&ll be conveyed to the Aasociation and/or descrLJed or referenced herein or in a Declaration oL Annexation.
. 1.8 "Comn Expenses' shall mean and refer to the actual and estimated expenses of operating the Comnon Area and the Asaociation and any reasonable reserve for such purposes as found and determined by the Board and all sum8 dosignated common expenaes by or pursuant to the Project Documents.
1.9 'Declarantm aha11 mean and refer to CARISBAD AIRPORT CENTRE, a California limited partnerahip, and its 8uccesrors-in-
interest and assigns, but shall not include m.mber8 of the . public purchasing completed Units.
1 .LO 'Declaration' shall mean and refer to this enabling Declaration.
1 .lL 'Institutional tender" shall mean and refer to any bank, 8avinqs and loan association, insurance company, or other financial institution holding a recurded first mortgage on any
Unit.
1.12 "LLC" shaAl mean and refvr to any particular parcar - of land r.osulting from division of the Project according to law. Ilauaver, -Lot" shall not include real property owned by the Associatizn. "Lot" shall also mear. any condominium.
. 1 . 13 '':.-..!I" shal L wan and refer t-o Carlsbad TracL No. i :-
46, Unit '40. I (or a portion thereof) , being a eubdivirlon c E a
portion of Lot "C' of Rancho Aqua Hcdonia, in the County of Sac Dieqo, State of California, according to map thereof No.
n33. Fi led in the Offlce of the County Recorder of San
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Diego County. taovembmr 16, 1896; and aubraguently recorded map, filed in the County of San Diego, OLfice of tho County Recorder as Hap No. 11287, 11288 and 11289 on July 16, 1985, and a11 amendments 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 ks8ociation as provided herein.
1.15 "Mortgage" 8hall man and refer to a deed of trust a8 well 88 a mortgage.
1.16 "MOrtgagC6" shall mean and refer to the Iwneficiary or a holder of a deed of trust as well a8 a mortgagee.
1.17 DMortgagor" shall mean and refer to the trustor of a deed of trust a8 well a8 a mortgagor.
1.18 %wner' or *Ovners* shall mean and refer to the record holder or holders of title of a Unit in the Prajuct. This shall exclude persons or entitiea having any interest moraly as security for the performance of any obligation.
1.19 "perron" rhull mean anci rafar to 8 natural person, a corporation, a partnership, a trc;stee, or other logal entity. 1
1.20 *Phase" shall mkan a.-d refer to a particular parcel ".
of property which is or shall become part of the Project pursuant to the recordation of an appropriate Declaration of Annexation. The property described in Exhibit A to this Declaration shall be deemed to be the first Pha8e of the Project and any parcel annexed to the proporty describd in Exhibit A under a Declaration of Annexation shall be deemed to be a sub8equent Phase of the Proiect. Each of the division8 of lsRd aa shown on Exhibit C attacned hereto and nade a part hereof shall be subsequent Phases upon annexation.
1.21 "Project* shall mean and refer to the entire Subject Property including all str~~t~re8 and improvements erected or to ba erected thereon.
1.22 "Project Documents" shall mean and refer to thir Declaration a8 it may be amended from time to time, the exhibits, if any, attached hereto* the May, tha Articles and Bylaws of the Association, and tile rulas and regulations for the Members a8 established from time to time.
1.23 "specific Plan" shall meiin, with ryard to any Ph&w within the Project, that certain "Specific P1.n" of development approved by tho City of Carlsbad. A copy of any approved Specific Plan is on file with the City of Catlsbad.
1.24 "Subject Property' shall mean and refer to the real proporty covered by thLr Declaration (including property annexed pursuant to this Declaration), and all improvements erected thereon and all property, real, personal, or mixed, intendad ior or ured in connection with the Project.
1.25 'Tract" shall mecn and refer to a portion of the Subject Property or of a Phase for which a major subdivision map is recorded.
1.26 "Unit" shall mean and rater collectively LO the elemenLs of an individual Lot and the building in the planned development, as defined in Article 2.
. 1.27 "Unlr Designation' meam the iumbet, Letter, or combination thereof or other otfir~i: dariq.rsr.ior1 Flrown on >:e
Hap.
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ARTICLE 2
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DESCRIPTIOM OF PROJECT. DIVISION OP PROPERTY AND 2
CREATIOW OF PROPERTY RIGHTS
2.1 ~escription of Projrcr
The Project conrirtm of the underlying Subject property with the Unit8 and all other improvement8 located or to
be located thereon, and include. all Pha8eS annexed purruant to
thi8 Declaration.
2.2 Division of Subject Property
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2.2.1 Units
Each Of the Unit8 cOn8i8t8 of 8n individu8lly owned Lot and a1.i improvement8 including the Buildinq Eleaont, located thereon. Title to the Unit shall be held by the Owner thereof aubject to the specific covenant8, condition8 and rcstrictiona set forth in thir Declaration. Each Unit in subject to such encroachaants a8 may now exist or IMY be later Cau8ed or created in any manner. In interpreting deeds and
plans, the then existing physical boundari.8 of a Unit, whether in its original state or reconstructed in SUb8tanti.l accordance- with tho original plan$ thereof, shall be conclu8fvely pra8unred
to be ita barndari.8 rrthot +bur th. bound8ries exprosrod in tho deed or pLan, regardless of settl lng or latoral wvoaent et thi building and regardlor8 of minor varianc8(8) between the koundarios shown on the plan' or doed, and thore of the Buildinq L enrent.
2.2.2 Common Area tots and CoarPon Area
That portion of the Subject Property dercrihd on attached Exhibit 6 shall be be "Common Area toea", title to which shall be held by the br8ociation. The Common Area (which includes, without lirnttatiou, the Carmnon Area tots and the improvements -.:ereon) shall k operated and maintained by :he Association I-c the use and benefit of Owners of Unit. in the Project, subJrct to reasonable rule8 and reyuLatiotr8 enacted according to the Bylawr. Unless otherwisr restricted, each Unit Owner may use the COlmon Atma in accordance with the purposes for which it is intended without hindering the exerci8e of or encroaching upon the rights of any 0th.r Unit Ownerr. Declarant shall reserve and hereby reaorvos in itself and it8 SUCC~~~OII and assigns, as well a8 in the Asaociation and in all other Owners, easements over and onto the Coupron Area and over and onto the individual Lot8 up to the exterior perinoter waLl8 of each Building element for drainage and encroachment puryomem and
for ingress to and egre88 from the Cornmon Area and ruch portion8 of the individual Lot8 for tho purpoao of completing improvements thereon or for the performance of nece88ary maintenance, Landrcaping, and repair work, and for entry onto
adjacent property in connoction with the developaont of additional Phase8 of the Project. Oeclarant .hall a180 ramerve and horeby reservo8 in 5tsalf and its succ0880rs and asaigns. for a five year period fra th8 date of the initial recordation of this Declaration in the Official Records of tho San Diego County, California R8cordet, a right to reasonably alter or modify the 8ize and boundaries of tha Phase I Common Area Lots or other Comaon Area con8irtent with tho proper developmeat OC future Phase8 of the property described on attached Exhibit8 A,
8, and C.
2.3 No Separate Conveyance of Interortr
The foregoing interemta and oxclu8ive easements are hereby establisned and as0 to be conveyed only with the rerpective Units, and cannot be chanqed, oxcept a8 hervin set forth. Declarant, its succesmore-in-.intere~t, a8ri+ns and grantees, coverant and agree that the easements in the Coram Jn - 4-
Ar.8, tho Uta, ad the Units shall not be soparated or sepratoly assignod or conveyed, and each such interest and exclumivo easemont shall bo deemed to bo conve od or oncumbered with ita respective Unit even though tte description in the
instrument of conveyanco or encumbranco may refer cnly to tho title of the Unit.
2.4 Annexation of Additional Parcels
Additional parcels may be urnoxod to the Subject Property and kcorno subject to this Declaration by oither of the follawing awthodsr
2.4.1 Annoxation Pursuant to Plan
Tho proporty described in EXHIBIT C, or any portion thoroof, my be annexed to and become a part of tho Project, subjoct to this Declaration, and subjoct to the jurisdiction of the Association, without tho assont of the Association or its Members, on condition that:
2.4.1.1 ~ Any annexation pursuazt to this Subarticlo shall be nade prior to tventy-five (2Sj years from " date of tho initial recordation of this Declaration in the .Official. Record8 of tho Sun Diego County, Califorrria Hecorder.
2.4.1.2 A Drxlaration of Annoxation shalt
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be rocorded by Doclarant coverin3 tho applicablo portion of tho property to be annexed. Said Declaration shall incorporate this Declaration by reference and nay col.taitl such complementary additions and modifications of the covenants and restricticns contained in this Declaratiorl as may bo necessary to reflect tho dif€orent Character, if any, of the added property, and ae"ari not cottsistept with the schema of this Declaration.
2.4.2 Annexatiota Pursuant to Approval
Upon the vote or written assent OC Declarant (while Declarant is an Owner) and of tuo-thirds (2/3) of the total votes residing in Members of the Association other than Declarant, tho Owner of any property who desires to add it to the scheme of this Declaration and to subject it to tho jurisdiction of the Aseociation, may record a Declaration of Annexation in the manner described in ths preceding Subarticle. Upon annexation of a new Phase, the annexed parcel shall become 8ubjOct LO this Declaration without the necessity of amending individual section. hereof. The Cwnerr of tho Units in a preexisting Pha80 will continue to have the same rights with respect to tho US. of tho Common Area located within thoir Phaso, and will have a non-exclusive easonent for access, ingres8, urd egress for pedestrian, cycle, and passenger and delivory vohicle traffic, as wall as for vehicular parking and othorwiso over and for reasonable use o€ the Conmon Area located within tho m Phase in accordance with tho purposes for vhich
it i8 int0ad.d without hindering the exorcis8 of or encroachicg crm he right8 of any other Owners. Owners of Units io the ne*: Ph.80 will h8vo a non-exclusive easement for access, inqre8s.
8nd *-*e8 for pedestrian, cycle, and pasaenqer and delivery v.hic10 traffic, as well as for vehicular parkiny and otherwise
0V.t and for reasonable use of any Comorr Area locirted within tho new Phaac or within any preexisting Phase in accordance w~rh tho purpose8 €or which it is inte.ndrc1 without hindering the exerciso of or encroaching upon Lhe rights or any other Owners and will become Members of the Association. Declarant ~~ersby reserve8 to itself, its sclcceasora and assigne, the right to, and agrees that it will, grant tc the Ownero of Units in any new or pre-existing Phaes, the non-sxclusive.easenents for accesa, i ngr+rs, eyress, us0 as described
shall reservo dnd
vehicular parking and otherwise, and rear;onaole in this paragraph. In addition, Oeclsrallt hereby reserver in iteelf and in its succeusors and assigns, as over and Onto thu Comnon Area and over and onto the individual Lot. up to the exterior perlnleter walls Of each Ouildinq Element in any new Phase fcr ClraiIlaCJe! and encroachr.w:r pcrr1:ores and fcr inqress to and eyress I~UIII ttle
Common Area and auch portion8 of the individual tot. tor the purpoao of coapletirq improvements thereon or €or the performance of necessary maintenance, landacaping, and repair work, and for entry onto adjacent proporty in connection with the developmnt of additional Phaaea of tho Project.
2.5 De-annexation of Parcel.
Any ptCd annexed to the Subject Proporty purruant to the plan of Declar8nt, in accordance with Subarticle 2.4.1 abovo, may be de-annexed by Doclarant and removed from the - Projoct and tho juriadiction of thi8 Declaration and the Aaaociation at any time the recordation of an approyriato Declaration of Oeannaxat 7 on; provided that 8uch de-annexation
ahall take place (1) before any Unit in the annexed parcel ha. been aold by Declarant to a member of the qoneral public; (2 1 before any vote ha8 been exerci8ed on behalf of or with rcapect to any such Unit; and (3) before any such Unit haa incurred any a..eaament obligation to tho Aaaociation.
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END OF ARTICLE 2 ENTITLED
DESCRIPTION OF PROJECT, i)IVISION OF PROPER'I'Y, AND CREATION OF PROPERTY RIGHTS
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ARTICLE 3
ASSOCIATIW, MMINISTRATXON, MEMBERStlIP AND VOTING RIGHTS . " . " -~ :
3.1 Association to Hanaqe Conmon Area
The mnagement of the Colplaon Area shall be vested in the Association in accordance with the Bylawr. The Ovnars of all . the Units covenant and agree that the administration of thm Project shall be in accordance with the provision8 of thi8 Declaration, the Article8, the Bylaws, and the rule8 and requlations of tlu Association, subjsct to the standards set forth in this Declaration and all applicable Laws, regulation8 and ordinances of any governmental or quaai-gooernmental body or agency having jurisdiction over the Project.
3.2 nemberrhip
'r'he Owner of a Unit shall automatically, upon becoming the met of same, be a twmber of the Association, and shall remain a Member thereof until such time a8 hi8 ownership ceases for any reason, at which time his membership in tha Association shall automatically cease. Membership shall be in accordance vith the Articles and the Uylawa of the Association
3.3 Transferred Hembershi~ .
nemberahip in the Association shall not be transferred, pledged, or alienatad in any way, except upon the transfer of ownership of the Unit to which it is appurtenant, and then only to the new Owner. Any attempt to make such l transfer is void. In the event the Ovner of any Cnit should fail or refuse to transfer the membership registered in hia name to the purchaser OC his Unit, the Aqsociation shall have the . right to record the transfer upon its books and thereupon the old membership outstanding in the name of the seller shall..h- null and wid.
3.4 Classes of Membershie
The Association shall have two (2) classus of voting mcrmberslrip established accordinq to the koLLuui~~y provisions:
3.4.1 Class A Membership
Class A Members shall be all Members with the exception of Declarant. Class A Members shall be entitled to vote that fraction of one vote as is equaL to the percentage
interest attrxbutable to the Unit wned by such Owner AS Set 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 determined by Declarant approximating the square footage of each lot in the Subject Property in relation to the aquare footages of all other lots in the Sub jecr property. The percentage allocation8 are and shall be binding on the Declarant and on all Owners. If the actual square footages are more than three percent (3t) (plu8 or minus) different than the approximated square footages, the Board shall recompute the Percentage Interest Schedule and the new Schedule *hall thereafter be binding on the Declarant aad on a11 Owner.. In no event shall the Declarant or an Owner fail to pay it8 assessments by reason of a disagreement with either the original Schedule or the recomputed schedule. If a Unit is awned by more than one (1) person, each such person shall be a membmr of the Aasociation, but they shall collectively have no more than the fraction 05 one vote so allocated to their Unit.
3.4.2 Class B Membership
The Class 8 Member shall be Declarant. The Class, B metder shall be entitled to ten (LO) times the Exhibit I) fraction of .me vote otherwise ellocated to each Unit awlred IJY 90
Declarant, provided that the Cl.cse y membership shzll ?ease arc! p rQ
be converted to Class A membership on rlrc happening of Ltm -3 r'ba
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earlier of the following eventsa
i 3.4.2.1 When the total votes outstanding in the Class h membership qual8 th. total votes out8tanding in the Class B membership.
I 3.4.2.2 Tho axpiration of twenty-fiva (251
1 years from the date hereof.
1 3.5 Voting Requirements
While there are two (21 outstanding classes of membership, any action by the Association which must have the approval of the Aasociation ~ember8hip before beiny undertaken shall require the vot8 or written assent of the prescribed perc-tntaqe of each Class of membership.
3.6 Commencement of Votiny Rights
Voting rights attributable to any Unit shall not vest "----until an assessment has been levied against that [Jnit by the Association, purauant to Article 4, below. .-
3.7 Membership Meetings
Regular and special uiringa of #IDb.ts of the Association shall ba held with tke frequency, at the time and place, ancl in accordance with tl-e proviaions of the Dylaw8 of i 8 the Association.
i 3.8 Board of Director8
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i The affairs of the association slraLL be managed by a Board of llirectots, which shall be established, and which shall
of the Bylaws of the A880Ci~!tiOn.
I conduct regular and special meetings -according tG =he provisions
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EhO OF ARTICLE 3 ENTLTLED
ASSOCIAT'.ON, ADMINISTRATION, HWBERSIiIP AND VOTING RIGHTS
ARTICLE 4
IUX-CE AND ASSESSMENTS
4.1 Creation of the Lien and Personal Obligation of Assessments
Declarant, for each Unit owned within the Project, hereby covenants, and each Owner of any Unit by acceptance of a conveyance therefor, whether or not it shall be so expressed in such conveyance, is deaed to covenant and agree to pay to the Aesociationr (1) regular monthly assessments or charges; (2) apecia1 assessments, and (3) capital improvement assessments for capital improvements and unexpected expenses. All such assessmet;ts are to be established and collected as provided herein and in the Bylaws of the Association. The monthly, special and capital inprovement assesuments, together with interest, costs, and actual attorneys' fees, shall be a charge and a continuing lien upon the Unit again8t which each assessment is made, the lien to become effective upon
demand to cure). Each such assessme~~ether~i~~~nterest~~~- - costa, and actual attorneys' fees, shall also be +he personal obligation of the pu.00 who vas the Owner of such Unit at the time when the assessment fell due. No Owner m8y exempt .hinuelf from liability for the assessme.lts provided for herein nor release his Unit from the .lien3 and charges hereof by waiver of the use or enjoyment of any of the Corrm3n Area or by abandonment of hi3 [Init.
-recordation of a notice..of assessment (notice of default and
4.2 purpose of Assessments
The assessments levied by tlre Association shall be
used exclusively to proriaote the recreation, health, 6afety and welfare of all the Owners in the entire Project for tlre improvement and maintenance of the Comron Area for the COnunOn good of the Project. Annual assessments shall include an adequate reserve fund for maintenance, repairs and replacement of the Comaon Area.
4.3 Regular Assessments.
The wunt of reyular assessments shall be determined by the noard pursuant to this Declaration, the 'Articles and Bylaws after giving due consideration to the current uaintenance costs and future needs, including the build up of reserves for working capital and contingencies of the Association. The regular assessments shall be paid on a monthly bash. If the Board determines that the estimate of total charges for the current year is, or will become, inadequate to meet all current expenses for any reason, it shall then determine the approximate amount of such inadequacy and issue a supplemental estimate of
the cOrnmOn expenses and determine the revised amount of regular assessr.lents due from each Elember, and the date whm clue. If the amount budgeted to meet conunon expenses for any period proves to be excessive in light of the actual colnmon expenses, the Board in its discretion nay, by resolution, reduce the amount of the regular assessments.
4.4 =cia1 Assessments
Sper.1al assessmentr' shall bd levied by the board asainst a Unit to reimburse the ~saociation fox:
4.4.1 costs incurred in bringing an Owner and his
Unit lrto ColGpLiance with the provibions of this Declaration, the ArticLea, the BylaVSa GC the rules and regulations:
4.i.2 any other charge designated as a 8peCial
asse~sment ir? this Ckclaration, the Articles or Bylaws:
4.4.3 attorneys' fees, interest and other charyes relating thcr.:to a@ provided in chis Declaratian.
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In the event the Association undertake8 to prOVfd8 %ateriala or services which banefit individual Units and which can b. accepted or not by iadividual Ownera, such Cuners in accepting such araterials or 8eNiC.S a9r.e that the c08t8 thereof shall be a special assess~+~t.
4.3 capital Improvement Aasersmenta
In addition to the regular ar8essrnentr and special assessments, the A88ociation My levy in any calendar year. an arsessment applicable to that year only, for the purpora of defraying in Whole Or in part, th8 cost of construction, reconstruction, repair, or replacement (0th.r than due to destruction) of any capital improvement upon the Common Area or to defray any unanticipated or underestimated expense or other action or undertaking normally covered by a regular assessment. ha imposition of a capital improvement araersment in a SUI in excess of $100,000, shall require approval by vote or written consent of Hemberr entitled to exarcfee not less than three- fourth8 (3/4thr) of the Voting power of the mcmborrhip.
4.6 Rate of AS8e88ment
Each Unit, including Unit8 oun8J by Declarant, shall "-_bear a fractional share of each aggregate regular and special assessment according -tO-th8aUQCatio-n8 set forth on Exhibit D attached hereto or on an appropriate exhXlFiXF~eclaration of Annexation. (The appropriate exhibit to the Declaration of Annexation shall be det8rmined b?: approximating the square .footage of tach lot in each covemd Phare-The percentage a llocationr shall ' be binding on the Declarant' and' ontall Owner8 in alL covered Phases. If.. the actual square footages are more than three percent (3%) (plulr .x minu.) different than th8 approximated square footages, tr19 ward shall recompute the Percentage lntrrast Schedule and the new Schedule shall thereafter be binding on the Declarant and on'all Owners, In no event shall the Declarant or an Owner fail to pay its .. assessruetits by reason of a disaqreemant with 8ither the original Schetlttlo oc the racOncpuL3d Schedule. AdditLonally, special oau~sa,urur,La may k luvLu*.l :ty.alr~u~ IIcalIvi*l~t.'l 8hi8 :I Ie.1 disciplinary reasons, as provided in Subarticle 4.4.
4.7 Date of Commencement of Regular ~ssessments and Firinq Thereof
The regular assessments provided for herein shall commence as to all Units in the Project on the first day of the month following the cloae of escrov for the aala of the f irst Unit in the Project or at such time befor8 or after 8Uch firrt day: of said =nth a8 Declarant deem appropriate in Declarant's good Laith buSintSS iisccetfon. Due dates of araessments shall be the first of every month. No notic8 of ruch assesaments shall be required other than an annual notice retting forth the amount of the mnthly assessmen:.
4.8 Certificate of Payment
The A88ociation shall, upon demand, furnialr to any Owner Liable for aaid asaessmtnt, a certificate in writing signed by M offic8r of the Amociation, rettinq forth vhether tha a8se1r8ents for a specified Unit haV8 be8n paid and the aIPUnt of the delinquencyr if any. A reaeonable charge may be made by the Board for the issuance of these certificates. Such certificate 8hll be conclu8ive evidenc8 of payrmnt of any ar6ess1r1ent thecein stated to have been paid.
4.9 Duties of the Board'
?he Board shall fix the aamunt ot the regular assessment against each Unit for each fiscal year at Lraat
thirty (30) days before the conulmncement of such year and shall, at that time, prepare a roster of the Units within the Subject P'toperty and regular asseasmentr applicable thereto which shall
be kept in the office of the harociation and shall be npen to inspection by any Wner during normal buminear hours. Written?
5 - 10-
f
notice of the regular assea8ments @hall be aent to every Wner aubject thereto at leaat fifteen (151 day. before the c-ncemnt of each ruch year.
The Board shall fix the amount of all capital improvement asaeasments at least thirty (30) day. before tho date such assessments shall become due and shall gave written notice to each Owner subject thereto at leaat fifteen (15) days before the date such aaseasment8 shall bocor~r due.
4.10 Exempt Property
All property dedicated to and accepted by a local public authority shall be exempt from the assessments created herein, unleas the maintenance responsibility of auch dedicated property is not accepted in full by the local authority in which case such dedicated property ahall not be exarapt from-the asaeasmants created herein.
4.11 Enforcement of Asseaamant Obligation; Prioritiea; Discipline
13 any part of any aaseaament ia not paid and received bfthe--Asso&+iorr-oritr .designated agent within fifteen (15) days after the due date, an autom-tXFlXXeTha~--
of ten percent (10%) sball be assessed and additional ten percent (101) sum shall be aaseaz-d for each month or fraction thertof from the due date until the a8aeaalunt and a11 late charges are paid. When a notice of asreasnant (notice of default and demand to cure)..ha8 been recorded, such assessment shall conatitute a lien on each respective Unit prior and superior to all other Liens excekt all taxea, bond., asaessmonta and other Levies which, by law, would be superior thereto. Such 1 ien, when delinquent, may be enforced by sale, by the Association, its attorney or othtr person authorized by this Declaration or by law to make rhe sale, after Eailure of the Owner to pay such arlsessmelrt, in accordirnce with the proviaiona of Sections 1356 an3 2924-2924h of the California Civil Code, applicable to tho exercise of powers of sale in mortqaqes and deeds of trust, or in any other manner ptrmitted by law. The Association, act :3 on behalf of the Unit Ounera, shall have the power to bid fo; the Ur.it at the torecloaure aalo, and to acquire and hold, lease, mortgage and convey the same. Suit to recover a nroney judgement for *inpaid comaon expmaos, rant and attorneys' fees shall be maintainable without foreclosing or waiving the lien aecurinq the same. The Board may impose reasonable monetary penaltiea including actual attorney.' fed and costa and may temporarily suspend the AsaOCiatiOn membership rights of a Unit Owner who is in drfau1.t in payment of any assessment, after notice and hearing accordinq tc the 1ryLawa.
4.12 Payment of Taxea Assessed Against Comnon Area or . Personal Property of Association
In the event that any taxes arm assessed aqainst the
Gammon hrea, or the personal property of the Aasociation, rather than hqainst the Unitr, said taxes shall be included in the aaaesunents made under the provisions of thia Article, and, if neceaaary, a special asseaament may be levied aqainst the Unit. in an amount equal to said taxea, to be paid in two in8%allmnts, thirty (30) days prior to the due date of each tax inatallmnt.
4.1 3 Proration of Unseqreqat.ad Real Property Taxes
4.13.1 X€ real property taxea are prorated by Declarant through escrw in connection with the conveyance of any Unit at a time when the actua. taxer attributable to such Unit are unknwn (where such actual taxes will be unknown at the time eucrou closes1 and if the tax bill is to be an
-d "unseoregated", or "blanket" bill covering the Projuct, Declarant shl! 1 ,..tk~ a -:<:Y~ C6j.t L entimate of Lhe real property taxes applrcable tc edci. ;x. and arc. cud -,.&l: make the .?!3rdti.f"
based on this good faith estimate. upon receipt: e€ he P
"unreqregated" tax bill after clo:,e ot eacrow, irny adjustments ' -.
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ah11 k made outside of escrow by Declarant and the owner of the Unit8 with the AS8ociatiOn'8 CWperatiOn. The Association shall pay before delinquency the entire "Uneeqregatrd' tax bill for the Project. POllGling the i8aUanC8 of tho 'unsegregated' tar bill, and imntdiatel after the h88OCiatiOn ha8 determined each Owner's proper 4 tax as hereinafter provided), QaCh Owner shall pay the entire tax for each Ovner'a Unit to the As8Ociat.iOn in Order that the A88OCiatiOn my 8ati8fy the "unsegregated' tax bill before delinquency. Each Owner for hileuelf and hi8 succe880rs hereby covenants and agrees that the right of the A88ociation to collect the tax may be enforced by any of the procedures deacribed in this Article 4. The %naegregatedm tax bill shall be equally divided among the Ovner s .
4.13.2 UnleS8 the Dechrant'8 good faith estimate is exact, the Declarant and the Owner aha11 promptly furnish the Association with their cloring 8tatewnts as proof of the proration of the "un8egrcgated" tare8 through e8crow. The Association shall then promptly determine the difference between the amunt of taxes charged to the Owner at the close of escrow (*oumrs Charge") and the Ownet'r actual share of taxes based on the 'unsegregated" tax bill ('Owners Actual Share'). If the owner's Charge exceed8 the Owner's Actual Share, the Association shall pay such exces8 to the Owner, and the
such payments. If the Ouner's Actuat3Imrre~edc-the Owner's Charge, the Association shall imediately pay the amount of such-"
assessment against the chtmer and him. unit for reimbursement of such payment. -:* ** c "E 1.
'DaL'larantrhrlL-iaPmediately reimburse the Association for all
>, exc.88 to Declarant, and shall thereafter levy a special
4.13.3 In" the event further 'unsegregated' tax bills are issued or 'unsagreqared' installmenta become due follcwing the sale of Units, the Association shall be re8ponsible for the payment thereof prior to dklinquency but shall have all rights set forth L" :nis Article to collo,ct.Ptor each Owner such Owner's proper share of the *un.eyregated' bill or "unsegregated" installn~ent.
4.14 Proration of SLgreyated Real Property Taxes
4.14.1 If real property taxes are prorated by Declarant through escrow Ln connection vith the conveyance of any IJnit at a time when tho actual taxee attributable to such Unit arc unknwn (where such actual tax88 will be unknown at the time escrw closer) and if the tax bill is to be R *segregated' or 'individual" bill covering the Unit, the Declarant shall make a good faith estimate of the real property tax.. applicable to the Unit and e8crow shall make the proration baaed on this good faith estimate, Upon receipt of the segregated' tax bill after close of escrau. any adjustments shall be made outaide of eacrow by Declarant and the Ovner of the Unit with the As8ociation'8 cooperation as provided in Article 4.13.2. The Owner ahall pay before delinquency the "889regat8d" tax bill for the Unit.
4.14.2 Unless the Declarant'8 good faith estimate is exact, the Declarant and the Owner shall promptly furnish the A~sociation with their closing statements as proof of the proration of the "segregated" taxer through escrw. The A8sociation shall then promptly determine the difference batueen tha amount of taxes charged to the Owner at the cloae of a8ctow ('Owner8 Charge") and the Owner's actual share of taxes baaed on the "segregated" tax bill ("Owners Actual Share"). Sf the Owner's Charge exceeds the Owner's Actual Share, the As8ociation shall pay such excar8 to the Owner, and the Declarant shall immediately reimburse the Ass~ciation for all such payments. tf the Owner's Actual Share exceed8 the Owner's Charge, the Association shall immediately pay the amount of auch excess to Declarant. and shall thereafter levy a special ~ssessme~~t against thr Owner and his Unit for reimbursanent of such payaent. Each Owner for himaelf and his succes~ors hereby covenants lo reimburse the amount of any 8uch excess tO the Asscciatim ..*r? =.grees I hat the. A;.qnt of :he Association '-0
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coll8ct such excesa pay ba enforced by any of the procedure8 da8cribed in #is Article 4-
4.15 Transfer of Unit
Sal8 or tr-fer of any Unit shall not affect the assessmnt lien. HOuever, the sale or tranafer of any Unit pursuant to Hortgage foreclosure including the exarci8e of 8 pover of sale or judicial foreclorure or acceptance of a deed in lieu of said foreclosure8 (collectively 'Transfer") involving 8
assessments as to payments which bhcam8 due and payable prior to such Transfer (except for asae8smclnt liens recorded prior to th8 Mortgage). No transfer shall relieve 8uch Unit from liability for any aascssmenta thereafter becoming due or from the lien thereof. Where the mrtgagee of a first Hortgag8 of record obtains title to a Unit as a result of any such Transfer, 8UCh Mortgagee shall not be liabl8 for the unpaid due8 or charge8 of the Aasociation chargeabl8 to auch Unit which accrued prior to the acqui8ition of title to auch Unit by such Mortgagee. Such unpaid due8 or charges shall be deemed to be comnron expen8e8 collectible from all of th8 Units including such HOrtgage8. In a voluntary conveyance of a Unit the grantee of the same .hall
be jointly and severally liable with the grantor for all unpaid assessments by the Association against the latter for hi8 sham
convcyance;"without pre judic-Uo-the qraat.8'8 right to cecover, from the grantor the amounts _wid by the grantee 1hhxefOt.
the Association, setting forth tire amount of the unpaid assessments due the Association and such grant88 .hall not be
any unpaid assessment mad6 by the Association again.+ th8 grantor in excess of the amcunr set forth in the statementt provided, hwever, the grantee s:la11 be liable for any 8uch assersmrnt becoming due after the date of any such statement.
; default under a fir8t Hortgaq8 shall extinquiah the lien of such
" -- of the cOrmDOn expenses up to the time of the grant Of
k .. However, any such grantee shall be entitled to a statement from
1 liable for, not shall the Unit conveyed by subject to alhn fori; '%
ESD OF ARTICLE 4 ENTITLED
MAIKTENANCE AND ASSESSMENTS
I.
ARTICLE 3
DUTIES AND FOWERS OF TRE ASSOCIATION
5 .l Duties and Powers
In addition to the duties and powers enumerated in ita Articles and Bylaws, or elsewhere provided Lor herein, and without limiting the generality thereof, the Association shall:
5.1.1 Haintain and otherwise manage all of the Common Area [including, in addition, that area on the individual Lots located betweea the Common Area boundary and the exterior perimeter walls of each Building Element) and all facilities, improvements, furnishings, equipment, and landscaping thereon. and all property (real and personal) acquired by the Association. The Association's responsibilities' hereunder rhall also include the maintenance and management of the mini-parka located on the Subject Property as well as certain special
Landscaped Areas') in and around the Subject Ptqierty aiicl"- ~" adjacent property, as generally described and depicted on Exhibit E attached hereto and by tbis reference made a part hereof. The Special Landscaped 6.rrca include certain landscaped streeta identified in the Specific Plan.-- If at-any tima tha Association fails or refuse$. to maintain or manage the Special Landscaped Areas as provided berein. the City of Carlabad my perform such duties (but i8 under no obligation to do so) at the sole cost atxi expense of the Association:
" . "fmdrcayed-streets _andsther landscaped areas (the "Special
~ ". .~ ~ ~~. ~
5 .I .2 flave the authority to obtain, for the betref it of all uf :he Cor;uncn Area, all water, gas and electric services and refuse collections, am, itr addition, refuse collection for each Plember's Unit. Esch Owner is responsible for obtaininy and paying Cor all uaret, gas an' electrical services for his Building Eleaent;
5.1.3 Grant easrmznts where necessary for utilities and scwcr Ldcilitics over the Courwlr Area arrJ Lots Lo oc'rvc the
Coumotr Area and the Units:
5.1.4 Haintain such policy or policies of insurance as the Board deems necesaary or desirable in furthering the purposes of and protectiny the interests of the Association and its Menlbers: provided, however, the Board shall make available to the Owners a ca-plete inventory of insurance carried by the Association and will notify all Owrlers of any changes in coverage that may affect the insurance needs of the Owners:
5.1.5 Have the authority to enploy a natrager or other persons ad to contract with independent contractors or manaqitrq aqtnts to perform all or any part of the duties and responsibilitie8 cf the Association:
5.1.6 !lave the paver to establish and maintajn a working capital and contingency fund from regular assessmenta in an amount to be determined by the Board:
5.1.7 Have the parer a1.d duty, sub ject to the rights of the 3cclarant am provided herein, to enforce the provisions of this Declaration by 'appropriate means, includin5 without lia.ltation, the expenditure of fund. of the Association, .the empiuyr.ent of legal counsel and the comtnencemetrt of ac:ions:
5.1.8 Pay any real and personal property taxes atid other charqes assessed to or payable by the Association:
3. i.9 AJopt reasonable rules not inconsist.ent with
.,I*.. :*r. OL:*~.~.JI~, ths .*r?.icles, -:* he Bylaws rela? i*i >O the
use of L5e ;tr.sou Iu~~ and all !aci!rties hececn, i,n,:'-.;;e ;P conduct uf Cuners atid their Lenante and yuest~ with respect to r'
the Sub~ect Property and other Owners: and
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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 Comon Area. The Association shall maintain
the retention basins which have been constructed in the Comnon Areas throughout the property. The rrsponsibility of the Association for maintenance and repair shall not extend to the cost and expense of repairs or replacements 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 Comnon Area resulting from such excluded items shall be the responsibility of such Owner. The Association slrall cause such repairs and rep1acemen:s to be made at the Owner's 801. cost and expense and if an Owmr shall fail to pay for rruch repairs or replacements, the cost thereof (plus interest from the date of payment at the maximum 1.ega1 rate) shall be added to the assessments charyeable to such Unit and shall be payable to the Association by the Owner of such Unit.
5.3 Association Easements
For the purpose ocperforming tho maintenance and management authorized by this Article or for any other purpose reasonably related to the performance by the Board of its responsibilities under this Declaration, the Association (and its agents and employees) shall have an easement over and onto all porticns of the Conmon Area, including, but not limited to, the Special Landscaped Areas.
5.4 Owner's Default
If there is a default by an Owner lndct an Owner's sublease tgreclment 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 EHTITLEL)
DUTIES AND POWERS OF THE ASSOCIATION
3 427
ARTICLE 6
UTILITIES
6.1 Owner's Right8 and Duties
The right8 and duties of the Ovnerr of Unit8 within the Project with respect to utilitier shall be as follow@:
6.1.1 whenever sanitary awer, water, electric, gas, television receiving, or telephone linea or connection., heating or air-conditioning conduits, ducts. or flues are located or installed within the Project, which connection8, or any portion thereof lie :n or upon Units owned by other than the Owner of a unit served by said connections, the Owner8 of any Unit served by said connections shall have the 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 tho units in or upon which said connection8, or any portion thereof lie, to repair, replace and generally maintain said conaections aa and when necessary.
6.1.2 Whenever sanitary sever, water, electr. , "&alepho-ne linea or connectionr are locatea or installed Yithin the Project, which connections serve more than one Unit,
the Owner of each Unit served by said connection rhaLi be"-- -.-- entitled to the full use and enjoyment of such portion9 of said connections assvice hi8 Unit.
respect to the repair or rebuilding of maid connections, or with" respect to the sharing of the cost hereof, then, Jpon written request of onaof such Owners addressed to th AsS3CiatiOtb the "matter shall bo submitted to the Board, which shall decide the dispute, and the decision ot the Board shall be final and conclusive on the parties.
6.1.3 In the event of &a dfrpute~etweerrsr~~~~ith ,.. .*a. ..
1
6.1.4 Each Owner shall at all times be solely responsible for the maintenance. repair, and insurance of his entire Building Slement.
6.2 Easements for Utilities and Maintenance
Easements over and under the Subject Property (including, without limitation, the Special landrcaped Areas) for the installation, repair, and maintenance of sanitary sewer, water, electric, ga88 and telephone liner and facilities, drainage facilities, walkways, and landscaping of the Subject Property, are hereby reserved by Declarant and its successors-in- interest and assigns, including the A8sociation, together with the right to grant and tranafer the same.
6.3 Association's DUti.8
The Asrociation shall maintain all utility installations located in the Comnon Area except tor those installation. maintained by utility companies, public, private, or municipal. The Association shall pay all charge8 for utilitiem supplied to the Project except those metered or charged separately to the Units.
ENU OF ARTICLE 6 ENTITLED
UTIl*ITIES
.. ’. . ARTICLE 7
MCIfITECTURAL CONTROL
7.1 Architectural Approval
Subject to the exemption of Declarant under Article 7.12 below, no buildinq, fence, wall, sign or other structure of any kind bhall be ca~ancad, erected or maintained upon the subject property, nor .hall any exterior addition thereto or change or alteration thereio be made uatil the plans and specifications shoving the nature, kind, shape, color, size, height, materials and location of the same shall have been submitted to and approved or disapproved according to a standard of good faith discretion in writing as to harmony of external design and location in relation to surrounding structure8 and topography by the Architectural Control Comittee ( ‘CommitteeD) provided for herein. In the event the Conunittee, or it8 designated representative8. fails to approve or dieapprove the design and location within thirty (30) days after said plan8 and specification. will be deemed to have been disapproved. All improvement work approved by the Committee shall be diligently completed. Any change8 or alterations to plan8 and specifications approved by the Committee, shall be re8ubnitt.d for approval as though it was a new subaission. Na approval
shall be rcquired to rebuild in accordance with plans and specifications previously approved by the Committee; not shall submi-s-lanr and specificatio~rs relating to normal
maintenance (including, nut not limitea to, - repa- accordance with the original color scheme) be required.
.~
~. -.
7.2 Landscapioq &uprov81
No trees, bushes, shrubs, or plant8 shall be planted
or installed until the plans and specification for the species and placement of any such tree8, bushes, shrubs or plants, and
the irrigation systemr therefor, have been submitted to and approved or disapproved according to a standard o€ qood faith disccrtion 111 WriCiuy by L~IU cutmit.Lcc. !hial (B\iblm ;la submitted shall show in detail the proposed elevations ana Locations of said trees, bushes. shrcbs or plants and irrigatisn syatcm for maintenance. All such plans and specifications shall meet the requirements ot the City of tarlsbad.
7.3 Appointwnt of Architectural Committee
Declarant shall initially appoint the Committee, consisting of an odd nurbcr of members not less than three (31, who shall remain in office until: (a) fifteen (15) years from the Jate of recording of this Declaration: or (b) all of the Units in all Phaaes have been conveyed by Declarant, whichever shall first occur: or (c) unless replaced by saauone else desiqnated by Declarant in its sdle ar.d abrolute di8cretion. From and after such tire or event, as the case miry be, the Committee shall be appointed by a vote of the Bo.ard and shall bt composed of three (3) or more representatives. fn the event of
the death or tesignation of any member of the Comittee prior to the cima when the Board is vested with the authority to appoint members thereof, Declarant shall have the riyht to appoint such member‘r succes~~r.
7.4 No Liability
Plans and specifications shall be approvod by the Committee as to style, exterior design, appearance and locations, and are not approved for engineering design or for compliance vith zoning and building ordinances, and by approving such plans and specifications nerther the Commit.tca, the members thereof, nor Declarant assumes llability or responsibility thereLor, or for any defect in any structure constructed from
* such plans and specifications. Further, neither Declarant ’ the Committee (or the members thereof) shall be liable in damages to anyone rubmitting plans or specifications to t’ approval, or to any (kner affected by these restrictions reirson of ni*i!.akc in judqemcllt, represcn:ation, express
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,
i. 429
implied, neqligeoce, or nonfeasance arising out of or in connection with the approval or disapproval Of failure to approve or disapprwe any such plans or specifications. Every person who submits plan8 or speciftcationa, and every owner agroos that he will not bring any action or ruit against Declarant, the Co-ittee, or any of the aembarr thereof to recover any such daugea.
7.5 Notice of Noncompliance or Noncompletion
NohrithrUnding anything to the contrary contained herein, after the expiration of the lator of one (1) year from the date of iS8UanCe of a building permit by municipal or other governmental authority for any improvemanta or one (I) year from the commencement of COnstrUCtiOn of any improvements vithin the Subject Property, raid improvement shall, in favor of purchaaer8 and encumbrancers in good faith and for value, be deemed to be in compliance with plana and specification8 approved by the Committee and with the rules and regulation8 e8tablished by the Committee, unless actual notice of rush noncompliance and noncompletion, executed by the Coraaitteo or it8 designated repre8entatives. shall appear of record in the office of tho County Recorder of San Dieqo, California, or unless legal proceedings shall have been instituted to enforce compliance or
". __
7.6 Rules and Regulations; Guidelines
The Collittee may frola tim8 to time in it8 solo and absolute discretion. adopt, amend and repeal architectural and landscaping guidelines, rule., and regulation# interpreting and implementing the provision8 hereof.
7.7 Variances
Where circumstances, such as topogr'aphy, location' of property lines, LGeatiOn of Crees, or other matters require, the Committee, by the vote or written consont of a majority of the nembers thereof, eay 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 variance8 shall be in keeping with the general plan for the iEprcvement and development of the Subject Property. Such variance8 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 Comitteo may from time to time, by the vote or written consent of a majority of ita ncmbera, deleqato any of its rights or responsibilities hereunder to one or more duly licensed architects or other qualified perrot18 who shall have
full authority to act on behalf of 8aid Committee in all matters delegated.
7.9 Review Pee and Addm88
Any plans and apecifications shall te s.~bmittod in writing for approval together with a reasonable processinq fee as 8et by the Cmittee in its good faith discretion. The addre88 of the Cmittee shaL!.l be such place as ths Committee may from time to time designate in writing. Such address shall be the place for the submittal of any plans ar.d sp+cificationu and the place where the current rules and regulations, if any,
o€ the Cornittee shall be kept.
7.10 Inspection
Any .-er or agent of the Comllittee may from time tO
tlme. 3c any re .sonable hour or hcurs and upon reasonable notice enter and inaptt any property suiaject :o the juri3diction of .a she Committee as to its improvement or maintenance in cumpliances with the provisions hereof.
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7.11 General Provision8
The member. of the any cunpenratioa for services
Committee ahall not be entitled to
performed pusmuant to tlri8 cobenan+. me pavers and dutiG8 of the Cornittea 8hall cease on and after fifty (SO) years from the date Of the recording of thia Declaration or upon legal termination of this Declaration. thereafter, the approval deacribed in thia 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 Owner8 of the Unitm in all pharea appointing a representative or representative8 who shall thereafter exercire the same power8 previourly exurci8ed by tha Committee.
7.12 Nonapplicability to original Con8truction
The provision8 of thir Article ahall not apply to any construction, landscaping or other improvement8 by Declarant as part of the initial development of the Subject Property (a8 the game my b. expanded through annexation) or aa part of the marketing program for sale of Unit8 within the Projoct.
END OF ARTICLE 7 ENTITLED ' ''
ARCHITECTURAL .. -. CONTROL
" ~"
i
ARTICLE 8
USE RESTRICT IONS
8.1 permitted User
Except as prohibited by this Article 8, the Subject property and buildings constructed or to bo c-mrtructed thereon shall be used for industrial, research, and developant purposes
as well as for office and related commercial purposes SO long as such purposes are consirtent with the Specific Plan and the zoning and other such applicable ordinances of tha City of Carlsbad, California, or such other governmental agency having jurisdiction, and so long as auch purposes are consiatent with any reatrictions and/or permitted uses referenced in any dec1ara:ion of covenanta, conditions, and restrictions of record or any other document of record.
8 .Z NO Re8idential Use
No part of the Subject property shall ever be used or caused to be used or allwed or authorized in any way, directly
or indirectly, for any residential or other non-business purpose .-~s+esmi~~. o.f CarlsbPd-_aaQ_fPL_emolovee or guest requirements.
8.3 Nuisances
NO noxious, offensive, or highly hazardous trade or activity shall be carried on, uwn, or within any portion of the subject proper tg or improvement thereon, nor shall anything be done thereon which may be, or my become art annoyance or public or private auisance to other owners or to the neighborhood (including, but not limited to, vibration,, electro-nagnetrc or electrc-mecharical disturbance, radiation, air or water pollutiou, the unreasonable mission of Just, odor, 948, smoke, fUIJIIS, noxious, toxic or norr-tsxic matter, or noise) or which shall in any way interfere with 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 011 the Sub ject Property .
0.4 Oil Drillinq and Milring
No oil drilling, cil development operations, oil refining. yuarryiny or ruining operations of any kind shall be permitted upon or in the Subject Property or any portion thereof nor shall oil wells, tanks. tunmls or winera1 excavations or shafts be permittee upon the surface of the Subject Property or any portion thercoC or within five hundred (500) feet below the surface of the Subject Ptoyerty. No derrick or other structure designed for use in boring for water, oil or natural gas shall
be erected, maintained or permitted upon the Subject Proper:y or any portion thereof.
8.5 Antenna8
No zelevision, radio, Citizen's Band, cr other electronic antenna or device of any type shall be erected, constructed, placed or permitted to remain on any of the buildings constructed on the Subject Property if such antenna or device is visible fron any viewing position outaide of a building.
8.6 Animals
tJo animals, pets or poultry of any kind shall be raised, bred or kept on any portion of the Subject Property.
A1 1 rubilsh, trash and qarbaye ahall be reyularly
removed frortt the Subject Property and shall not be allowed to accumulate thereon. All outdoor refuse collection areas shall he completely *?nclosed and -icreelled from access streets and
* 132 adjacent property by a block wall at least six (6) feet in height as approved by the Land Use Planning Manager of the City of Carlsbad. A11 such areas shall have concrete floors, and shalL be of sufficient size to contain all refuse generated by the business. These areaa shall be no less than eix feet by eight feet in size. 00 refuse collection areas shall be permitted between streetaide and the building line.
I
i
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 Gas L Electric recorded April 15, 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, zmper, boat or similar equipment shall be permitted to remain upon the Subject Prvperty. 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 c-rcial vehicles beiny used in the
! furnishing of services to the Owners and the temporary parking , while conducting business or enqaged in employment on the Subject Property of vehicles belonging to or being used by Owners, tneir employees,' guests, agents, or inviteus'. Parkiny area8 shall be landscaped in such a manner as to interrupt or
p -.cco~~".Wmas Irotb-vier - Lrom rccc.rsau_cat.aad ad)gccrl-k.~ -~ properties. All outdoor storage (which shall include the parking of business-owned or business-operated nutor vehicles 1 shall le visually screened from adjacent 8treet8 and Property. Said sc&ning shall consist of a eolid concr8to or masonry wall :or a wall of other durable material approved by the Land Use Planning Flatlager of the City of Carlsbad) which wall shall not be less than six feet in height. NO storage shall be pernlitted between streetside and the building line.
8.9 OutCoor ACti*JitieS
All activities assGciated uith the businesses beiny conducted CII the Subject Property must be conducted completely within the improvements on the Slrbject Property: provided hwever, usual and customary loading and unloading activities during wrnal business hours shall be excluded front this rcstrictioc.
6.lU Cowiition of an Owner's Unit
The Owner of any Unit shall at all times keep the Unit in a GO&, safe, and 8nnitary condition and he shall comply in all respects vith all govcrruaent, health, fire, and police requirentetrts and regulations. Undeveloped or unpaved areas shall be tnaintaiued free of weeds, rutsbish, debris or unsightly materials or objects of any kind.
El.1 L 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 invitee or agect or employee of such Owner.
8.12 Haximum Sound Levels, Etc.
None of the uses permitted within the Subject Property sliall produce the following:
fl. 12.1 Noise in excess of 70 decibels (American
a. For a CuNlibtiVe periorl of more than 30 nirrutes in any hour: or
b. Plus 5 decibels for a cumulative period ct tllore than 15 minutes in any- hour: cr
c. Plus 10 fccibcls for a cumulative period of Inure tltirn 5 minutes in any hour: or d. Plus 15 Jecioels for a cunrl*:.ative period of wore
tlmn 1 minute in any hour: or
Standard €or wise level meters):
-21-
-- "" - . . - .. "_ " V" - 433"""""
..
e. Plus 20 decibels for any period of tip..
8.12.2 Vibration, heat, glare, or electrical disturbances beyond the boundaries of the Subject Property.
8.12.3 Air pollution detectable by the human senses without the aid of instruments, beyond the boundaries of the Subject Property.
can cause damage to animals, VegetatiOiI or Property, or which can cause spilling at any point beyond the boundaries of the Sub )act Proparty-
8.12.1 Emisrions which endanger human health which
8.12.5 odor detectable by tho human sensea without aid of inntrumenta beyond the boundaries cf the Subject Property.
8.13 Wastes
~ll waatea diicharged into the wastewater discharge system vi' 1 conform to tho City of Carlabad standards, as the same my ,e revised from time to time.
8.14 Billboards and Signa
No billboards shall be CCn8tructed, installed, or maintainea on thzrSubject--Proper+.y-.-AnLc-.ig~anner~,.._or like- displays which may be placed in or upon the Subject Property, except those approved by the Committee, shall be prohibited. No freestanding signs shall exceed eight (8) feet in height. No 'mirig of any kind shall be displayed on.-any.portion of the Subject Propertyr except in rtrict accordance with tho Sign Criteria established in Exhibit F attached hereto and by this reference made a part hereof, and then only after receiving committee approval.
e. 15 Air Pollution Guideline8
All uses on the Subjsct Property shall comply with
applicable air pollution reyulations including regulations for control of airborne dust during construction. 5z?
8.16 Other operations ana Uses
Operations and usea that are neizrler specifically prohibrted nor specifically authorized by this Declaration may be permitted in a specific caae if wr:cten operational plana and specifications for such operations ar..- ;18CS, containing such information as may be requested by the Committee are submittea to and approved in writing by the Committee, which approval shall be based upen analyris of the anticipated effect of such operaticns or uses upon other units, and upon the cxcupants thereof, but shall be in the.sole and absolute discretion of the Committee.
8.17 Loadinq Restrictions
On those special landscaped streeta identified in che Spcific Plan, no loading or unloading ahall be allowed which i8 visible from adjacent streets. On streets other than auch 8pCial land8capad #treats, streatside loading and unloading shall be permitted provided that the loading dock is set back at least seventy (70) feet from the street right-of-way line. AL1 loading areas shall be screened from adjacent streets.
8.18 Metal Structurem
No metal structures with metal sliainy or sheeting exteriors shall be permitted on tne Subject Property,
8.19 Screening of Equipment
Exterior components o€ plumbinq, proceasinq, heatinq,
cooling and ventilatiny ryatems (includinq, but not limited to,
piping, tanks, st.ack8, co1hctors, heating, cooling and -22-
0 . ventilating equipment, fans, blowera, ductvork, vents, louvers, meters, ~~mpreascrs, motors, incineratora, ovens, etc. 1 shall not be diroctly visible to the surrounding areas to the satisfaction of the Land Use Planning Manager of the City of Carlabad. Transformer or terminal equipment shall be visually screened from view frcr streets and ad!acent properties.
8.20 No Warranty of Enforceability
While Declarant has no reason to believa that any of the restrictive cwenants contained in thir Article 8 or elsewhere in the Dcclaration are or may be invalid or unenforceable for any reason or to any extent, Declarant makes no warranty or representation as to tho present or future validity or enforceability of any such restrictive covenant. Any mer acquiring a Unit on the Subject Property in reliance on one or more of such restrictive covenants shall as8ume all risks of the validity and enforceability thereof and, by acquiring the Unit, agrees to hold Declarant harmlerr therefrom.
END OF ARTICLE 8 ENTITLED
USE RESTRICTIONS
9.1 Insurance
Insurance shall bo maintained on the Project a8
to1 LOUS I
9.1.1 Association Liability Insurance
The Association shall obtain and continue Ln effect comprehensive public liability insurance insuring the Association, the Declarant and the agents and employees oL each and the Owner8 and the respective guests and invitee8 of tho Owners against any liability incident to the u8e of the Cornon Area, and including, if obtainable, a cross-liability endorsement insuring each insured against liability to each other insured, and a %everability of interest' endorsement precluding the insurer from denying coverage to one Owner because of the negligcncc of other Owners or the fi.ssociation. The scope of the coverage shall include all other coverage in the kind8 and amounts required by private institutional mortgage investors for project8 rimilar in construction, location and use.
9.1.2 Association Hazard Insurance
-
Faditionally,- thcAs8nUtion shall obtain an6 continue in effect a policy of tire and extended coveraye insurance for no less than one hundred percent (100%) of replacement coat of insurable real and personal property within . the Common Area. Such policy may a180 Contain vandalisa and malicious mischief coverage, special form endorsement, stipulated amount clause and a determinable cash adjustment Clause, or a similar clause to permit cash settlement covering full value of the improvements on the Comn1on Area in the event of destruction and a decision not to rebuild pursuant to this Declaration. Such policy sllall name 8s insured the Association, for the benefit of the Owners and Declarant (so lcnq as . - Declarant is an Ovner of arty unite).
. "
9. I .3 Additio-al Association Insurance
The Association may purchase such other insurance as it may deem necessary, includiny without limitation plate-glass insurance, workers' compensation, directors' liability, and errors and omissions insurance, and shall purchase fidelity coverage against dishonest acts on the part of directors, managers, trustees, employees or voAunteers of the Association uho are responsible for handling funds collec~ed from and held for the benefit of the Ownets. The fidelity insurance shall name the Association as the insuzed. In connection with such fidelity ccverage, an appropriate endorsement to the policy to cover any persons who serve without compensation shall be added if the policy would .?ot otherwise cover volunteers.
9.1.4 Insurance Premiums
The cost of insurance policies acquired under Article 9.1 shall be a cmrru?n expen8e to be included in the a8sesraentr levied by the A8sociation. The acquisition of insurance by the Association shall be without prejudice to the right of any Unit Ovner to obtain additional individual owner's inrutance.
9.1.3 unit llazard Insurance
In addition to. the policies which the Association shall carry on the COKrnOn Area, each individual Unit
* Owner shall obtain and continue in effect insurance coverage which shall be equal to or greater than fire and extended coveraye and stralI be at leaet rqmL to Clwt culwwtly required by private in*ititutional mortgage investor8 in tlw area in whic
I -.
thm Project is located, including liability insurance of not lesa than $z,OOO,OOO.OO. The policy shall provide, sa a minimum, fire and extended coverage insurance on a replacement cost baais in an wunt not less than that necessary to comply with any co-insurance percentage stipuhted in the policy, but not leos than eighty percent (808) of the insurable value (based upon replacement coat of the Unit). Except for insurance under the National Flood Inrurrnce Act of 1968, as amended, and for deductibles, the amunt of coverage shall be 6ufficient SO that in the event of any daMge or loss to the Unit of type covered by the insurance, the insurance proceed8 rhall provide at least the lesser of: (i! conpensation equal to the full amount of damage or loss, or (ii) compensation to the first 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 vubject to special flood hazards.
9.1.6 Waiver of Subrogation; Notico of Cancellation
All property and liability insurance carried by the Association or the Owners shall Contain prov-isions whereby the inrurer waiver rights of subroyation a8 to che Association, --officerl.Ind.ectors, and any Members, their guests, aqcnts and emplcyers. All policies of hazard insuranco IIIUSZ contain Or- have attached the standard mortgage clause commonly accepted by private institutional mrtgage investors in the area in which tho Uni-ts are 1ocat.d. All insuranco carried by the Association shall contain a provision requiring the insurer to notify Institutional lenders requesting such notice, at least ten (10) days in advance of the effective date of any reduction in or cancellation of the policy.
9.2 !)estruction of Improvements
3.2.1 Reconstruction of tinit(s)
In the event of damaye to or dertruction of any Unit, the Ovner shall reconstruct the same as roon as rearonably practicable, and substantially in accordance vith the original plans and specifications therefor. Each Owner shall have an easement of reasonable access onto any adjacent Unit for purposes of repair or recOnstruCtiCn of his Unit as provided in
this Subarticle.
9.2.2 Comnon 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 substactially in accordance with the original plans and specifications therofor. Any excess insurance proceeds shall be
deposited to the general funds of tne Association. In the event the proceeds of the Association's insurance policy are insufficient tc rebuild or repair such improvements, then, as soon as rearonably possible, a majority of the voting pcuer of the Association shall decide to either (0) use funds Eron its account or if nacussary from levying a special assessment on all Unit Owners (or on those responsible for the damage) to restore or rebuild said improvements; or (bl clear and landscape the Common Area for use as a community park, if appropriate, in which case excess proceed6 shall, in the discretion of the Board, be ratained in the general fun8 of the Association or be distributed to the Owners pro-rata. If the Board does not take rea6onably prompt action under this Article 9.2, any Member may call a special meeting as provided in the Uylawv to discuss the matters contained herein.
9.3 Condemnation
In the event of any taking of any Unit in the ProJecl
by eminent danain, the Owner of such Unit shall be enLltled 1 o receive :he award for such taking and after acceptance thereof, he and hie mrtgagee shall be divested of all interest in the -25-
'. 431 project it ruch war s~xalCGacate ia unit am a rorult of auch taking. In th8 event of a taking by eminent domain of more than on8 Unit at th8 same the, th8 Aa8ociation 8h1i participat8 in the ruqotiationm. and -11 propo8e th8 sathod of divinion of the procred8 of -dation, where Unit8 at8 not valued separately by the coadaaing authority or by the Court. In the event any Unit cwnet diaagrces with th8 proporad allocation, he may have thi Patter 8uhitted to arbitration under the ruler of th8 aerican Arbitration Araociation.
i !
EHD OF ARTICLE 9 ENTITLED
DESTRUCTfOrS OF IMPROVEMENTS
I 438
i ARTICLE 10
MINTENANCL BY UNIT OWNERS
10.1 owner's Right and Obligation to Haintain and Repair
Each Unit Wner shall, at his aole coat and oxpanee, maintain and repair hia Building Element, keeping the same in good condition. In the event an Owner fail. to maintain the same as provided herein in a manner which the Board dtvms neceraary to preserve the appearance and value of the Subject Property, the Board may notify Owner of the work required and requeat it be dome within fifteen (1s) day8 from the giving of ruch notice. In the event Owner fail. for carry out such maintenance within said period, the Board may Ciruae such work to be done and may specially arras the coat thereof to such Owner, and, If necessary lien his Unit for the amount thereof.
10 2 Di 8PUteS
If any dispute' arista concerning the proviaiona of this Article LO which Cannot be resolved Under the term of thia
I Declaration, then the matter may be aubmitted to arbitration under the rule. of the American Arbitrafion Aaaociqtion.
ENI? OF ARTICLE 10 ENTITLED " -
MAINTENANCE BY UNIT OWERS
‘ ZJ*. 439
ARTICLE 11
GENERAL PROVISIONS
11.1 Enforcement
The -lociation, Declarant, or any Owner or the ruccessor in intere~t of any Owner shall have the riyht to enforce by proceedings at law or in equity, all rertrictionr, conditions, covenants, rerervationr, lienr and charges now or hereafter impoaed by the provisionr of this Declaration or any amendment thereto, including the right to prevent thr violation of any such restrictions, conditionr, covenantr or rerervations and the right to recover damaqer or other dues for such violations; provided, hwever, that with respect to assesamant liens, the Aasociation shall have the exClUSiVe right to the enforcement thereof. Failure by the Association or by any Owner ‘ to enforce any covenant, condition or reatriction herein contained shall in no event be deemed a waiver of the right to do ro thereafter.
11.2 Negligence and/or willful Misconduct
The cost of any maintenance or repair services “---------.equired..to_be_performed by the Asrociation which are caused by the negligence, neglect orwiXTfutmitconduee”any-owner, or . his employees, guests or invitees shall be borne entirely by such Owner and will be a special assessment against such Owner. and hi8 Unit.
11.3 Severability
Invalidation of any one of these ovena ants, cmditions or restrictions by judgement Or court order shall in no way affect any other provisions which shall remain. in full force and effect.
The covenants, cc.ndi?ions and restrictiocs of this Declaration shall run with and bind the Units, and shall inure to the benefit of and be enforceacle by the A8sociation or the Owners of any unit, their respective Legal reprerentatives, heirs, auccessors and assigns for a ter.n of fifty (50) years from the date this Declaration is recorded, after which time said covenants, conditiona, and restriction. shall automatically be extended for successive periods of ten (10) years, unless an instrument, s igned by a ma joricy of the then Ownera , has been recorded, agreeing to change said covenants, conditions and restrictions in whole or in part.
11. S Construction
The provirions of this Declaration shall be liberally construed to effectuate ita purpcre of creating a uniform plan for the development of a building complex and Conmon Area within the Subject Property. The article and section headinys have been inrerted for convenience only and rhall not be considered or referred to in reaolving quaations of interpretation or construction. If there ir any conflict among or between the Project Documents, the provision8 of thir Declaration shall pravail: thereafter, priority shall be given to Pro~ect Documentr in the following order: Articles: Bylaws: and rules and regulation8 of the Association.
11.6 Asendmentr
Except ar otherwrse specifically providurl herein, thia Declaration of Cavenants, Conditions, and Rertictions may be amended only by an instrument in writing aigned Ly not Less than seventy-five percent (759) of the voting pwer of the membership of the Asaociation and, furcher, thia amendment provi’rlon chall not be amended to allow amendment8 by the assent
or vote of less than revcnty-five percent (758) oL the votlnq - 28-
pwer of the membership of the As 444 ation. Any amendment must
be pcoperly recorded. No amendment to Article 5*1.1 Or to Article 11.15 shall be valid without the prior written consent - to such amendment by the City of Carlsbd.
11.7 Clortqage protection Clause
No breach of the covenants, conditions Of
restrictions herein contained in this Declaration, nor the enforcewent of any lietr provisions Irerein, shall Jeleot or render invalid the lien of any first Mortgage (waning a ~ortgage with first priority over any other Mortgage) on any anit 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 is derived through foreclosure or trustee's sale, or otherwise.
11.8 Singular Includes Plural
Whenever the context of this Declaration rec(UireS
same, the singular shall include the plural and the masculine shall include the femin&ne.
~- "" 11.9 Nuisance
the result of every act or omission, whereby any provlsicu, condition, restriction, covenant, easement or reservation contained in this Declaration is violated in whole or in part, is hereby declared to b. and constitute8 a nui88ncer. and every remedy allowed by law or equity against a nuisance. either put;lic or private, shall be applicable against every such result and may be exercised by the Declarant, Comittee, the Associatiolr or any 1)wner. such remedy shall be deemed cumulative mil not exclusive.
1 I. 10 Encroachnlent Easements
~aclr Unit within the Sublect Property is hereby declared to have an ea.sernent over all adjoining Unit8 and the Comc*on Area for the purpose of accommodating any encroachment clue to engineeciny errors, errors in original cocstruction, settlement or shifting of the boildinys, or any other cause. There shall be valid easements for the maintenance of said encroaclments as long as they shall exist,. and the rights and obligations of Owners shall not be altered in any. way by said euccoactuwcnt, settlement or shifting: provided, however, that in no event shall a valid easement for encroachment be created in favor of an gwner ut Owners if said encroachment occurred Jut 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 Conanon Area shall be permitted and that there shall be a valid easemalit for the maintenance of said encroachments so long as they shall exist..
11. l 1 Nonliability of officials
To the fullest extent permitted by law, neitlrer the Eoard, the Cormlittee, and other committees of the Aaaociation sr any nlember of such Board or any cunntittee shall be liable to any Member or the Association for any damaye, loss or prejudice suffered or claimed on account of any decision, approval or dis- approval of plans or specificaticns (whether or not defective), course of action, act, omission, er.ror, negligence or the like
macle in good faith within which such DGatd, committees or persons reasonably believed to be the scope of their duties.
1 1.12 Owrlcr 's Easements of enjoyment
easements for utilities, sewage and drainaye. (including, withwt limitation, non-exclusive easemants for drainage over the Subject Property leading to the retention basin on the Subject Property), and such easenlents shall be appurtenant to and shall pass with the title to every Unit, subject to the follouiny provisions:
(a) The right of the AssOCidtiOn to establish rules and regulations pertaining to the use of the Comnon Area: and
I (b) The right of the Association to suspend the votiny rights and right to use the Common Area by an 3wner (and his quests, clients, and invitee81 for any period during which any assessment against his Unit remains unpaid and delinquent: and €or a pcricd not to exceed thirty (30) days from any single infraction of the rule8 and regulations of the Association, provided that any suspension of such voting rightr or riqht to use the Conuwn Area, except for Cailure to pay assessments, shall be made only by the Association or a duly appointed committee thereof, after notice and hearing given 'and held in accordance with the Bylaws of the AssOCiatiOn.
11.L3.1 Each Owner, tenant G: occupant uf a Unit shall comply vitk the provisions of the Project Uocun.elrts and
all ciecisions anci resolutions of the Association or its duly authorized representative, and failure to comply with any such provisions, decision,, or resolutions, shall be grout.ds for an actiori tu reco\*er sums due, for damage8 (including cats and ntturneys' fees 1, and/or €or knjunctive relief. All aqreelnents and rietefminstictts lawfully made by the Association in accsrdance with the voting percentages established ill this :)cclaratwn ur in the Bylaws, shall be Jeealed to be bindinq. OR all .**':lezs cf bnits, their successors and assigw.
11.13.2 Any aqteel:len: for the leasiny, s~b- leaslnq, liceusiny DC assigvrent of a Unit (hereinafter in this ArtLcle referred to as J "lease", the person Occ~upyil~cJ the Unit
UrltlCr sud1 a lease is hereinaf er referred to as a "lessee" slmll prwide that the cernts of such leasr shall be subject in all respacts to the provisions of this Declaration. Any owner who s!ialL . ~SC hls Unit shall be responsible Cor assuring c(:apAiar~:c :.y suck. Owner's lessee with any lease, th-s i)eclnratLon. the Articles, the Dylaws and the Associetions's rules am.1 reyulations.
11.14 Construction Dy DeclaranI
Ncthinc in this beclaratim shall limit the right ol Declalant to alter the plan of development, cr to cmstruct such additional improvements as Declarant deems advisable prior to cosq~letiai of improvements upon and rale of the entire Project. Such right shall include but shall not be limited to erecting, collstructinq and nlaintajning on the subject Property such structures ald displays as may be reasonably necessary for the collcluct SJf the business of cclnlpletinq the work and disposing of the sanle 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 the Subject Property additional licenses, reservations and rights-oE-way to itself, to utility conlpanies, or to 0tl.ers as may frcllt time to tinte ve reasonably necessary to the proper development and
~l~!qu~:..~l rlf tl~a vrc~ jcct. l)cci,1cant ~~":crves the ricJltt to n lrcr
Lts co~~structior, plaits and designs hs it deenn approptiate. l'he riqllts uf beclarant hereunder may be assigned to any successor
or successors to all or part. of said entity's respective ihterest in the Project, by all express assiynment incorporated
in 4 recorded deed or lease, as the case may be, transferring
sucl. interest to such successor. urclarant shall exercise is riqllts'cotltaLneu in ttlis provision in such a way as not tu unrcasonabLy int.zrcere with the Yernber's rights to use and en]c the SuLJect pcq.e* "y.
,~
5 . 442 4
11-15 Indemnification cf City of carlslad
Declarant aqrees to indemnify and hold the Cic-y of Carlsbad harmless from and against !1) liability for personal injury, (2) liability for prarerty damase and (3) liability resulting from judgements rendered in inverse condemnation actions. This indemification shall apply to the foregoing 'types of Liability which arm caused by or result froin (1) the operation of the Palozmr Airport, (21 aircraft using Palmar Airport or (3) the Clty'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 ucras5 zone* .
as identified on the Enviro;rmental Impact Report (EIR 81-61 prepared in connection with Declarant's application for 3 Final Map for the Froject. This provision shall be binding uFn and shall inure to the benefit of Declarant's succesors-in-iaterest,
transferees, and assigns. Upon the transfer or asaignnent of the property makir.9 up the Project, Declarafrt shall Sa relieved
of all obligatior.8, duties. responsibilities, and Liabilltien imposed upon it by this indemnificat bn.
this DecLaratioq on SC.Q*LObrc 4 , 1986.
The undersigned, being the Declarallt herein, has, executed
." " - TARLSBAD-AI RPORT- . = Califorrtla lialted partnership
." .. .
Byr CoWItJ:; i'ry ~LS~JLHCLS CORPORATL*>N,
a Nevada corporation
1986 before me, the n and for said
to we on the basis of satisfactory avid ncel to be the persons who executed the within instrument a8 k
and , on ?ehalf of COnMUNfTY
that executed the vithin instrument on behalf of CARISBAD
AIRPORT CENTRE, a California limited partner8hip8 the partnerahip that executed the within inatrumant, and acknowledged tome that srich corporation executed the same as partner and that such partnership executed the same.
WITNESS my hand and qfficial neal. '
"
County and State
EXHIBIT A
LOTS 1 THROUGH 25 INCLUS XVE, OF CARLSBAD TRACT NO. 81-46 UNIT
NO. 1, IN THE CITY OF CARLSBADD COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDIWG To MAP THEREOF NO. 11287, FILED It1 TllE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY.
i
EXCEPTING THEREFROH 50 PERCENT OF ALL Oft, MINER&# GAS. AND OTHER HYDROCARBON SUBSTANCES BEWW A DEPTH OF 500 FEET UNDER TIIE
REAL PROPERTY DESCRXBED HEREIN, WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESEWED BY CARLSBAD PROPERTIES, A PARTNERStlXPa IN A DEED RECORDED JULY 5, 1978, RECORDER'S PILE NO. 78-279136
""."-
r
446
EXHIBIT C '
LOTS 26 THROUGH 49 INCLUSIVE OF CARLSBAD Tm NO. 81-46 UNIT
NO. 2, IN THE CITY OF CAUSBAD, COUNTY OF SAN DIEGO. STATE OF CALXFORNIAI ACCORDING TO HAP THEREOF NO. 11288, FILED It4 THE OFFICE OF COUNTY RECORDER OF SAW DIEGO COUNTY.
EXCEPTING THEREFROM SO PERCENT OF CUlL OIL. HINERALr GAS, AND OTHER HYDROCARBON SUBSTANCES BELOW A DEPTH OF 500 FEET UNDER THE
REAL PROPERTY DESCRIBED HEREIN, WITHOUT THE RIGHT OF SURFACE ENTRY. AS RESERVED BY CARLSBAD PROPERTIES, A PARTNERSHIP, IN A DEED RECORDED JULY 5, 1978, RECORDERS FILE NO. 78-279136.
LOTS 50 THROUGH 76 INCLUSIVE OF CARLSBAD TRACT NC. 81-46 UNIT
210- 3, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO. STATE OF CALIPORNKA,.ACCORDING TO MP THEREOF NO. 11289, FILED, IN THE
OFFICE OF COUNTY RECORDER OF SAM CIEGO CWNTY. ~,
EXCEPTING THEREFROM SO PERCENT OF ALL OIL, HICERALI GAS0 AND
"OTHER-HYDROCARBON-SUBSTANCES UELOW A DEPTH OF 500 FXl' UNDER THE REAL PROPERTY DESCRIBED HEREIN, WITHOUmm*SURfhCE ENTRY, AS RESERVED BY CARLSIAD PROPERTIES, A PARTNERSHIP, IN A
DEED RECORDED JULY 5, 1970, RECORDERS FILE NO* 180279136.
8 PERCENTAGE INTEREST TABLE si
4 *
i I
. ..
r' 2021
87 048040
TBIS lIRST AntwDllENT datd Nov8rb.t e 19868 is made to the Declaration of Cooe~ntr~ Condition. and Rerttictions of Carlsbad Airport Centrer recorded September 121 1986 a8 :ocument number 86-401456 with the San Diego County Reccrderr ("Declarationm) putmuant to Section 11.6 of said Declaration by not lesr than 75% of the voting power of the membetrhip of the Aarociation.
1. Exhibit B ir deleted and replaced by the Exhibit 8 attached hereto -andincorporat~hi8~eferenc.,
2. Exhibit D is deleted and replaced by the Exhibit D attached hereto and incorporated herein by thir reference.
3. Sectioa 2.2.2 i8 deleted and replaced YI f0lioW.: &. -x.
'2.2.2 Coawn. Area.
That portion of the Subject Property dercribed on attached Exhibit 8 .. . shall be 'Comaon AreaBr which includes
be held b the Aarociation ar well as that portron of individual Lotm which is designated on Exhibit B ar Common Area for the urporar of maintenance by the Asaociatfon. NO earemante ure or en- croachnt rights reserved by Declarant herein aha11 in any manner hinder or interfere with the Individual Lot wn- err' ure of ita Ute including ure of Common Area maintained by the Aaaocia- tion, within such Lot and no encroach- ment unto any Lot rhall be allowd ex- cept Lor drainage ures. The Comwn Are8 (vhich includerr without limitation, the Coaslon Area Lots and the ilrprovementr thereon) rhall be operated and =in- tained by the Asrociation for the ure and benefit of Ownerr of Unitr in the Project, rubjcct to rearonable ruler and
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'Colllllon Are8 uta'# tit18 to Which rhall
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regulations en8cted according to tho By-
hU8. hcept am noted above and onlers otherwise restricted, mch Unit Ovaor MY use the C-n Are8 in accor&nce with the por ser for which it is intend- ed without hcdering the exerciso of or encroaching upon tho right. ot any othor Unit Ownerr. Declarant rhall reserwa and hereby reaervea in itrelf and its suc~easoro 8nd asmignr, as well 8. in the Association and in a11 other Owners, earements over and onto the Coaon Area and over 8nd unto tho individual Lots Up to the exterior perimeter uallr of each Building element for drainage and for ingrcsr to and egress tror thr Caron
Am8 and such portionr of tho individual Loto Cor the purpolre ot corpleti~ improvewntr thereoa or for the pOrfOtm- ance ot necerrary maintenance, landrc8p in9, and repair work, provided such ngcerund-.grrsunhdrai~g~ in no manner interferes with the use by 8nY Unit Ovner of i tr tot or the improve- ments located thereon. Declarant sh.11 rlro reserve and bercby rerervem in
for .8 zioo year perid. from the date .or- the initial recordation of this Declata- tion in the Off id81 Recordi ot tho 8.n Diego County, C8llfornia Recorder, 8 ,- . ~ right to rcasonatdy alter or dity the
sire and boundarier of th8 PUS. I Common Area Lot# or other Common Area consistent with the proper developreat of the Property described on.attach.4 Exhibits AI B 8nd C.'
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itself ad ita ruccrrrors ad 8SSiQWe
4. Section 2.2.1 ir codified by addition of folloving at the end of the laat sentence: the
.The above interpretation rhall b. ured for the purpose of applying them declarations only and for no-other r eason.
5. Section 4.4.2 ir deleted and repl8ced with the Colloving:
*4.4.2 my other charge rerson8bly desig~ted am a special asmessunt in this Declaration, the Article8 or By18W0.m
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6. Section 4.S im mdiflrd by abdition of the Following parenthetical after the claume . . . the cost of con8truction . . .I 8
.(other than initial conrtructioa which in8tafhd DeC18rmt)"
7. Section 4.15 im modified by deletion of the word
8. Section 6.1.1 1. modified by the addltion of tho
.firat. as it tvice appear. in the section.
follwing after the last rentence:
.The above ea8ementm ahall ba limited to areas within rpecifled earemeat aream exirting prior to tranmter of the Unit Lot to a third party and in no event ahall gi8nt any arty, including the Declarant, thr r P 9ht to eatablimh IeY casements for any purpolre acr0.m any Lot not ovned by Declarant or tho A~sociation.~
9. Section 6.2 la modified by addition of the +"following -.Ltetthe-laaCe~ ... f ._
.The above easemanta ahall be limited to
existing prior to tranatot of the Unit tot to 8 third p8tty 8ab in 110 .+eat ahall grant any party, including tho Declarant, the right to emtabllah new caacmenta Cor any purpoae acroar any Lot not owned by baclatrnt or the
1 areas vithin rpecified earement areal
A8SOCi8tiOn.a
LO. Section 9.2.1 is modifid by additioa of the following after the last rentencar
"Reservation 3f easement rightm to each1 Ouner ('Repaiiing Owner') for purpomer of repair or reconatructlon of ita Unit ('Repaired Unit') onto any adjacent Unit ('Easement Unit') owned by another Owner ('Eaaement Owner') rhall be limited ao that it doe6 not unreasonably interfere with raid Easement Unit, or haemant Owner 'a uae of ita tot and ahall require such Repairing Owner to mkr any repair@ made necessary t:, the Caaement Owner'# tot and Unit rerulting tram or by the Repairing Owner's uoe of arid E8aement Unit..
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11. Section L1.2 1s modlfled by addition of the followlngr
*fa no event shall thim Section bo deemed to crertm any contrrctural liability on any much Ouner for tb. above .CtB
12. Section 11.7 ir .odlLiad b deletion or the word *firstm and deletion of the prrenthet I cal claure '(meaning 8 Mottprge with firrt priority 00.r any other W?t9.9e)"e
continuer in full form 8nd effect.
executed by all the owners of the Property demcribed therein.
In all other reapectr the Declar8tioa 1. affirmed rnd
IN WITNESS WBERDO?, this ?ir& Amendment h.8 been
Dated: / ". - . . . . .
CARLSBAD AIRPORT a Callfornla Lirlted Partnerrhip
THIS DOCUHENT IS TO BB SIGNED BEnE A
NOTARY PUBLIC. PLEASE SIGls YOOR EUCTLY'AS IT IS TYPEWRITTEN.
s?G:cAc 02:11:0d:86
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i STATE OF MINNESOTA)
; COUNTY OF HENNEPIN) 1 IS.
The foregoing was acknowledged before me this 15th day . of January, 1987, by GENE HAUGWJD, President of Opus Southwit Corporation, a corporation under the laws of Minnesota, on behalf of the corporation.
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Lot No.
1 2- 3. 4
I.' 5 6 7 8 9
10 11 12 13 6 14 15
.16 17 18 19 20 21 22
23 24 2s
F t' 2027 r
Gross Ac.
1.949"-
6.155 3.515 3 . 160 3 e321 2.831 3.933 4 -372 Open Space 7 -648 2.SS8 3 9848 5.181) 3.334 09.n space Open Space 1.498 1 . 44.2 4.458 4.308 4.746 4 -732 3 . 127 2.713
Total Unit No. 1 I 80.836 Gr. Ac. (excluding open space and streotr 1
1 Ha? 30, 1986 . Job No. SO80 "
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Lot No.
i
i 38 39 40 ! 42
i 44
: 45
~ 46
* 47 48 .19
1 '43
Groar Ac.
s -10s 5.64s 2 A93 2 .OS8 3 .SlO
"rw3 2.913 S .SO3 2.444
4.428
2.m 3.234
8 of k.& or VnLt No. 2
7.1148 O.S30% 3.3148
5.3048 . 6.6918 4.5238 4s-23- 8.3168 3.693% 3.441%
S.881t 7.0198 4.3448 2.S34% 2.312% - 2.248Q .' 2.3368
3.2618
4.82118
8ulldfnq Lots
', 3.lf3Q .s 4
4xz2e a*
1.9oaa
Total Unit No. 2 .j. i75 Gr. Ac. (excluding OQOh SRac. and rtreats 1
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1
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.. i- b 2029 r
30, 1986
ACREAGE ANALYSIS UNIT NO. 3
Lot NO. -018 AC. 8 of kea of Unit No. 3 Building Lots
so 4%"- 52 . 53 54 . SS S6 - 57 ' 58 s9 60 61 62 63 64 6s 66 67 68
6 9. 70 71 72 73 74 7s
2.S82 4SsM 4.04s 1.862 2.394 1.ma
2 .oea
1.647 2.119
3.581 2.661
3.0798
4.8238 2.22Ol 2.8548 2.370% 1.959% 2 321, 2.4801 4 a728
i.7598 .'
2,993r
-*. e.;
3.1148 -
2.7601 3.1181 3 -249) 3.708q 2.S068 3.7698 3.2678 3.2788 10.202t
15.142t '1.691a
1.8088
4 .99oe
. ."
Open Space 1.475 2.31s. 2.615 2.725 3.110 2.102 3.161. 2.140 2.749 8.SS6 4.18s 12.699 1.418 6 .S40
i my 30, 1986 .. ; Job No, 5080
CARLSBAD AIRPORT CENT=
'ACREAGE ANALYSIS - UNITS 1, 2 L 3
i 1 &t No. Grass Ac. 1 of hrea of Units 1,2 c 3 i. - Building Lots j
! 1. 3.94g 1.7108 2 6.15s 2.6668
If 3.515 1 . 5228 I 4. 3.160 1.3691
I 3.321 1.4388
16 2.831 1.2269 <. 7 - 3333" i . 7049
I 4.372 1.694t. 9 Open Space
10 7.648 11 12 *
2,558 3 .a48 13 L 14 15 S.188 ..
16 3.33d
-17 .18 19 20 ii 22 23 24 . 25 26 27 28 29 30 31 32 33 ' 34 3s 36 :3 7
Open Spaca
Open Spaca 1.498 1.442 4.4Sd
4 -308 4 -746 4.132 3.121 2.713 Open Space
Open Space 5.105 5.6d5 2.193 2.058 3.510 4.428 2.993 2.913 5. SO3 2.444
3.3121 1.1089 1 . 667) 2.2471 1.4448
0.6498 0.6248 1.9318 1.8661 2.0S68 2.0508 1.3548 l.175a -
2.2118 2.4458
0.950) 0.891% 1.5209 . ' 1.9188 1.3008 1.262t 2.384) 1. osat
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DtCLAlUTfOM 01 AIIRII)IzQ. 011 ..
PEABL XI OT CARLBEAD AI-= WRBWAHT TO DECLARRTIom 0. -8 ~~ITIOMS AND RtSTRICTXOMSr SI- -8 am DIE- COUNTY# CNZF-
HIS DECLARATION 01 ANNEXATION i8 G& 8nb 0-d info dl.
ay of October, 1990 by -BAD AIRPORT -8 8 ,alifOin@
d partnership, hereinaftor ro<errd to a* mDme18tm+'r
nt to Section 2.4 of that certain Declaration of Covuryrt8,
! ion8 and Rertrictionm, Carl8b.d Airport clntro, Sur Di-0
I , California as rocorded in tho official R.cord. Of. Uib
on January 28, 1987 a8 Instrimant No. 87-048040, h.,ra.r!aftCr
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: rd to a8 the Woclarationa. l iEREAS, Declarant desires to mrmr that 'artah mal
' ry a. dc8sribad in Exhibit to ttu Declaration ud 8s i
I >ts 26 through 49 inclusive of Carl8bad Tract 1 rit No. 2, in the City of Carlsbad, Count
! :ate of California,, according to Xap t oog no. 11288,
t .led in the Office of the County Rem 0 i mnty, oith Lots 33 and 34 of th6 foregoing doscr$gtion
)v also being described am Lot .A* of AdjU8tnnt Plat
b. 395 executed by the City Engineer of tho City of trlsbad, dated January 31, 1990 and recorda3 March b.
$90. in the Office of the County Rocordor of 8an Diqo unty as Inmtruaent no. 90-116039.
8:
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i Declaration of Annexation - Pw.1
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f. .. \\ '
I ,' B I ! .. 119..
all. b.rellufdr. roforrad' to as the "Phy 11 Rop.rfyar to that
cortain projuit, am tho term mojo& is doffnod in t& ~laratidn,
' to tho fullmst extent pilliS8ible pursuant to Swtiori 3.4.1. oi tha I
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8.ction. 2.4.1.2 of tho Dmclaratid provides for
of Annexation and -ion 2.4 1 hrrtkr
.hall cauw ttm property annmxed
to b.caw a portion of' the Project, to kcov mabjoet in a11
r&ct. to t~ ~oclaration, ad to becaw sub~rct in a11 romp.ot.
to th. W-iition, an mas torr is dofirub in eo kclarationt
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. N&, TdtEmRE, in consideration of tha praius and th.
authckity ve ,t.d ' in tho undor8ignod Declarant und.r th.
Dmclarationt i 1. The clmrant horoby annoxom tho Phasr 11 Property to the
PrOf.Ct, 8ubf i CtS .-/Or r8-8UbjOCt8 Said phlru If to tho
Doclaration, and furthor mubjocts maid Phamo I1 Proprty to tho
full juri.di&ion of tho Asmociation (Carl.bed Airport Can-
Wrs k*ia L ion). .
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2. .Tho kclarant hereby roaff i-8 all of tho pravimiok of '
Ch. ~mclaration as reco- and am such now affect th. mu 12
discription the .deClaratiOn8, limitationo, cweruntm,
Dmclaration of Annexation - Pago 2 '
e. .. ..
midont of- &ntro kvcrlopwnt
(or'proved to EO on the basis of satisfactory evidence) to ba tb 'the person. who executed the vithin instrument as pre8id.rrt of .
CI2-r DEV%OFTIENT, a California corporation, who being by u duly
NC,~. deposed, acknovledged and said: Said Dean Greenberg is tb. Prksident of Centre Developmentc the .corporation therein nand, mich executed same on b'ehalf of CAFUSBAD AIRPORT ASSOCIATES, tb. parptership therein named ae general partner 02 CARLGBAD AIRPORT' CECX, that said CARLSBAD AIRPORT ASSOCIATES executed the 8- a8 ~ the sole general partner.of CARLSBAD AIRPORT CENTRE, a California '' limited partnership, the pdrtnership that executed the within instrurcnt and that said CARSBAD AIRFORT CE'UTRE executd tho ..y.