HomeMy WebLinkAboutCT 97-13; Carlsbad Oaks North; Tentative Map (CT)�a
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RECORDING RE QUESTED BYF Ir`s1 An+e.tlufi ?i%zF F E B O S, Z O O 7 4: 1 0 P M
AND WHEN RECORDED MAIL TO:
TeChbilt Construction Corp.
P.O. Box 80036
UFFICIAL RECORDS
9AP! DIEGO COUNiY' RECORDER'S CIFFICE
GREU'GRYJ. SHtITH, COUNTY RECORDER
FEES: 184.00
FAGES: 60
San Diego, CA 92138 IIIIIIIIIIIIIIIIIIIIIII�II�III��II�IIIII��IIIIIIIIIII�IIIIIIII�IIIIIIII�I
Attn: Ted Tchang �
2007•0081082
Z s y6� g1 • N (Space Above Fo��Recorder's-Use)
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
CARLSBAD OAKS NORTH BUSINESS PARK
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TABLE OF CONTENTS
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ARTICLE 1
l.l
1.2
13
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
120
121
1.22
123
124
1.25
1.26
]27
1.28
129
130
131
1.32
1.33
134
1.35
136
1.37
1.38
1.39
1.40
1.41
1.42
DEFIIVITIONS................................................................................................. 1
��Annexation Property� ....................:.................................................................. 1
„Annexed Property�� .......................................................................................... 2
„Architectural Committee" ................................................................................ 2
��,APplicant" ....................................................................................................... 2
"Architectural and Landscape Standards" .......................................................... 2
„Articles" .......................................................................................................... 2
��Assessment" .................................................................................................... 2
��Association" .................................................................................................... 2
��BMPs" ............................................................................................................ 2
��B oard" ............................................................................................................. 2
��Budget" ........................................................................................................... 2
��Bui lding�� ......................................................................................................... 2
��Business Park" ................................................................................................ 2
��Bylaws" .......................................................................................................... 2
��Certificate of Payment" ................................................................................... 2
��City�� ............................................................................................................... 2
„CNLM" .......................................................................................................... 3
��Common Area Lot 9" ..................................................................................... 3
„Common Areas" .............................................................................................. 3
��Common Expenses" ........................................................................................ 4
��Construction Drawings" .................................................................................. 4
�� County �� ..........................................:................................................................ 4
"Davis-Stirling Common Interest Development Act" ....................................... 4
��Declarant" ....................................................................................................... 4
��Declaration" .................................................................................................... 5
��Declaration of Annexation" ............................................................................. 5
��Events of Foreclosure" .................................................................................... 5
��Final Map�� ...................................................................................................... 5
��Governing Documents" ................................................................................... 5
��Hazardous Materials" ...................................................................................... 5
��Improvements" ................................................................................................ 5
,�Invasive Plants" ............................................................................................... 5
��Kilroy�� ........................................................................................................... 5
��Kilroy Lots" ................................................................................................... 5
��Kilroy Purchase Agreement" .......................................................................... 5
"Landscaping Maintenance District" ................................................................. 5
��Landscape Setback Expenses" ......................................................................... 6
� � L aws" .. ... ... .. . .. . .. ... .. . .. ... . .. ... ... ... ... ... ... ... .. . .. . .. . .. . .. . .. ... .. . .. . .. . .. . . .. .. . . .. .. . ... . .. . .. . .. . .. 6
��Lessee" ............................................................................................................ 6
„Lot" ...........................................................:..................................................... 6
"Maintenance and Operation Account" ............................................................. 6
��Member" ......................................................................................................... 6
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1.43
1.44
1.45
1.46
1.47
1.48
1.49
].50
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.60
1.61
1.62
1.63
1.64
1.65
1.66
��Mortgage" ....................................................................................................... 6
��Mortgagee" ..................................................................................................... 6
��Net Acreage" ................................................................................................... 6
��Occupant" ....................................................................................................... 6
"Open Space Preserve Grant of Easements" ..................................................... 6
„Open Space Preserve Lots" .......................................:..................................... 6
„Owner" ..........................................:................................................................. 6
��Person" ..........:................................................................................................. 7
� � P I an s" .. . .. . .. ... .. . .. . .. . .. . .. . .. . .. . .. . .. ... ... ... ... ... ... .. . ... .. . ... ... ... . .. . .. . ... .. . .. . .. . .. . ... ... ... ... ... 7
��Preliminary Plan" ............................................................................................ 7
��Project Approvals" .......................................................................................... 7
„Property �� ......................................................................................................... 7
„Record" ........................................................................................................... 7
„Regular Assessment" ....................................................................................... 7
"Required Landscape Setback Area" ................................................................. 7
��Reserve Account" ............................................................................................ 7
„Rules and Regulations" ................................................................................... 7
��Special Assessment" ........................................................................................ 7
��Specific Plan" .................................................................................................. 7
��Settlement Monuments" .................................................................................. 7
��Supplemental Declaration" ............................................................................. 8
„SWPPP" .......................................................................................................... 8
��Tentative Map�� ............................................................................................... 8
,�Tentative Map Property�� ................................................................................: 8
ARTICLE 2 THE ASSOCIATION ....................................................................................... 8
2.1 Organization ..................................................................................................... 8
22 Duties of Association .......:................................................................................ 8
22.1 Assessments ..........................................................................................8
222 Common Areas ..................................................................................... 8
2.2.3 Discharge of Liens ................................................................................ 8
2.2.4 Insurance ............................................................................................... 8
2.2.5 Payment of Expenses ............................................................................. 9
2.3 Powers of Association ....................................................................................... 9
23.1 Acquisition of Property ......................................................................... 9
23.2 Assessments; Liens ...............................................:............................... 9
2.3.3 Borrowing .............................................................................................9
23.4 Contracts .............................................................................................:.9
2.3.5 Delegation .............................................................................................9
2.3.6 Enforcement ..........................................................................................9
2.3.7 Manager ..............................................................................................10
23.8 Security Services ................................................................................. 10
2.3.9 Rules and Regulations .....................:................................................... 10
23.10 Variances ............................................................................................ ]0
2.4 BoardofDirectors ..........................................................................................10
2.4.1 Initial Board ........................................................................................ 10
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2.4.2 Subsequent Board ................................................................................ 10
2.43 Administration .................................................................:.................. 11
2.5 Association Membership ................................................................................. 11
2.5.1 Appurtenant to Lot Ownership ............................................................ 11
2.5.2 Transfer of Association Membership ................................................... 11
2.6 Voting Rights ................................................................................................. 11
2.6.1 Sole Voting Rights of Declarant .......................................................... 11
2.6.2 Voting Rights of Members .................................................................. I 1
2.6.3 Approvals and Consents ...................................................................... 12
2.7 Annual Membership Meetings ........................................................................ 12
2.8 Personal Liability ............................................................................................ 12
ARTICLE 3
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
IMPROVEMENT STANDARDS AND RESTRICTIONS .............................. 13
General . .. . .. . .. . .. . .. . . . .. . .. . .. . .. .... ... ... ... ... .. . ... ... ... ... . .. . .. . .. . . . . . . . . . . ... ... .. . . . . . .. . ... ... ... . .. 13
Architectural and I:andscape Standards ........................................................... 13
Net Acreage Determination ............................................................................. 13
Maintenance of Lots ....................................................................................... 14
Undergrounding of Utility Lines ..................................................................... 14
Maintenance of Drainage Facilities ................................................................. 14
SubdivisionofLots ......................................................................................... 14
Landscaping Maintenance District .................................................................. 14
Participation of Owners in Required Programs ................................................ 15
OutdoorStorage .............................................................................................. 15
Sight Distance Corridors ................................................................................. 15
InvasivePlants ................................................................................................ 15
ARTICLE 4 ARCHITECTURAL REVIEW ......................................................................: 15
4.1 Architectural Committee ................................................................................. 15
4.1.1 Organization; Members ....................................................................... 15
4.12 Duties ..................................................................................................16
42 Approval Required .......................................................................................... 16
43 Basis for Disapproval ...................................................................................... 16
4.4 Approval Procedure ........................................................................................ 18
4.4.1 Submission of Preliminary Plan ...................................:....................... 18
4.42 Approval of Preliminary Plan .............................................................. 18
4.43 Submission of Construction Drawings ................................................. 18
4.4.4 Approval of Construction Drawings .................................................... 19
4.4.5 Fees ..................................................................................................... 19
4.5 Proceeding With Work ................................................................................... 19
4.5.1 Commencement of Improvements ....................................................... 19
4.5.2 Completion ......................................................................................... 19
4.6 Approval Certificate ....................................................................................... 20
4.7 Failure to Obtain Approval ............................................................................. 20
4.8 Nonliability for Approval of Plans .................................................................. 20
4.9 Waiver of Approvals and Conflict of Interest .................................................. 21
4.10 Appeal ............................................................................................................21
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4.11 Submission of Plans to City or Government .................................................... 22
4.12 Compliance With Govemmental Regulations .................................................. 22
ARTICLE 5 REGULATION OF USES .............................................................................. 22
5.1 Permitted Uses ................................................................................................ 22
5.2 Prohibited Uses ............................................................................................... 22
5.3 Settlement Monitoring Equipment Program and Easements ............................ 23
5.4 HazardousMaterials .......................................................................................23
5.4. ] General and Specific Prohibitions ........................................................ 23
5.4.2 Duty To Notify :................................................................................... 24
5.4.3 Compliance with Hazardous Materials Laws ....................................... 24
ARTICLE 6 MAINTENANCE AND USE OF COMMON AREAS ................................... 24
6.1 Maintenance Responsibilities of Association .................................................. 24
6.1. ] General ............................................................................................... 24
6.1.2 Maintenance Activities ........................................................................ 24
6.13 Maintenance of Drainage and Pollution Control Facilities ................... 25
62 Maintenance by Lot Owners ........................................................................... 25
6.2.1 Extraordinary Maintenance or Repair ......................:........................... 25
6.2.2 Required Landscape Setback Areas ..................................................... 26
62.3 Compliance With SWPPP ................................................................... 26
6.3 Authority to Contract .........................................................:............................ 26
6.4 Permitted Transfers of Common Areas ........................................................... 26
6.4.1 To the City or Other Public Agency ..................................................... 26
6.4.2 To the Association ............................................................................... 26
6.5 Destruction, Restoration .................................................................................. 26
6.6 City Requirements .......................................................................................... 27
6.6.1 General Enforcement by the City ......................................................... 27
6.6.2 Notice and Amendment ....................................................................... 27
6.6.3 Failure of Association to Maintain Common Areas ............................. 27
6.6.4 Special Assessments Levied by the City .............................................. 27
6.6.5 Compliance with Specific Plan ............................................................ 28
6.6.6 Landscape Maintenance Responsibilities ............................................. 28
6.6.7 Environmental Mitigation .................................................................... 28
6.7 Open Space Preserve Grant of Easements ....................................................... 28
ARTICLE 7
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
EASEMENTS................................................................................................. 29
Easements Over Common Areas ..................................................................... 29
Reservation of Easement Over Lots and Common Area .............................:.... 29
Entryon Common Areas ................................................................................. 29
UtilityEasement ............................................................................................. 30
Reservation of Easement Over Lots ................................................................ 31
DrainageEasement ......................................................................................... 31
Emergency Vehicle Access ............................................................................. 31
SignageEasements ......................................................................................... 31
Dominant and Servient Estates ........................................................................ 31
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ARTICLE 8 FUNDS AND ASSESSMENTS ...................................................................... 31
8.1 Creation of the Lien and Personal Obligation of Assessments ......................... 31
8.2 No Exemptions ............................................................................................... 32
8.3 Purpose of Assessments .................................................................................. 32
8.4 Regulaz Assessments ...................................................................................... 32
8.4.1 Establishment ......................................................................................32
8.4.2 Failure to Fix ....................................................................................... 32
8.4.3 Revised Regular Assessment ............................................................... 33
8.4.4 Allocation ........................................................................................... 33
8.4.5 Commencement of Regular Assessments ............................................ 33
8.5 Special Assessments ....................................................................................... 33
8.5.1 Types .................................................................................................. 33
8.5.2 Establishment ......................................................................................33
8.53 Allocation ........................................................................................... 33
8.6 Certificate of Payment .................................................................................... 34
8.7 Due Dates; No Offsets .................................................................................... 34
8.8 Delinquent Assessments; Liens ......................................................................: 34
8.9 Deposit of Funds ...........................................:................................................. 34
8.10 Transfer of Lot ................................................................................................ 34
ARTICLE 9 OWNER'S INSURANCE ............................................................................... 35
9.1 Right and Duty of Owners to Insure ................................................................ 35
92 Notice of Expiration ........................................................................................ 35
93 Destruction of Owner's Building or Other Strvctures ....................................... 35
ARTICLE ]0 ENFORCEMENT ........................................................................................... 35
10.1 Violation a Nuisance ....................................................................................... 35
102 General Remedies ........................................................................................... 35
10.2.1 Right to Enforce .................................................................................. 35
10.22 Inspection; Abatement by Declarant, Association ................................ 36
10.2.3 Owner's Remedies ............................................................................... 36
10.3 Collection of Assessments; Liens .................................................................... 36
] 0.3. ] Right to Enforce .................................................................................. 36
10.3.2 Creation ofLien .................................................................................. 37
10.33 Notice of Default; Foreclosure ............................................................. 37
10.3.4 Subordination of the Lien to First Mortgages ....................................... 37
10.4 Interest ............................................................................................................ 3 7
10.5 Attorneys' Fees .....:......................................................................................... 37
10.6 Cumulative Remedies; No Waiver .................................................................. 38
10.7 Effect of Foreclosure ...................................................................................... 38
ARTICLE I 1 TERM; AMENDMENTS ............................................................................... 38
il.l Term ............................................................................................................... 38
11.2 Amendments ...................................................................................................38
ARTICLE 12 ANNEXATION OF ADDITIONAL PROPERTY .......................................... 39
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12.1 Right to Annex ............................................................................................... 39
12.2 Effect of Annexation ....................................................................................... 39
122.1 Rights of Owners ................................................................................ 39
12.2.2 Assessments ........................................................................................39
12.23 Supplemental Restrictions ................................................................... 40
123 Declarations of Annexation ............................................................................. 40
ARTICLE 13 GENERAL PROVISIONS .............................................................................. 40
13.1 Assignment of Declarant's Rights and Duties .................................................. 40
132 Common Interest Subdivision ......................................................................... 41
133 Constructive Notice and Acceptance ............................................................... 41
13.4 Counterparts ................................................................................................... 41
13.5 Declarant's Reserved Rights ............................................................................ 41
13.6 Dedications .....................................................................................................42
13.7 Exhibits .......................................................................................................... 42
13.8 Governing Law ............................................................................................... 42
13.9 Heailings .........................................................................................................42
13.10 Mortgage Protection ....................................................................................... 42
13.11 Mutuality, Reciprocity; Runs With Land ......................................................... 42
13.12 Notices ........................................................................................................... 42
13.13 Notification of Sale ......................................................................................... 43
13.14 Severability .....................................................................................................43
EXHIBITS:
EXHIBIT A Legal Description of Property
EXI-IIBIT B Map of Tentative Map Property
EXHIBIT C Map of Initial Common Areas
E7�-IIBIT D Net Acreage Schedule
EXHIBIT E Invasive Plant List
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DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
CARLSBAD OAKS NORTH BUSINESS PARK
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS FOR CARLSBAD OAKS NORTH BUSINESS PARK ("Declaration") is
made as of January 10, 2007, by TECHBILT CONSTRUCTION CORP., a California
corporation ("Declarant"), with reference to the following facts:
RECITALS:
A. Declarant is the fee owner of certain real property ("Property") located in
the City of Carlsbad, County of San Diego, State of California, more particularly described in
Exhibit A attached to this Declaration.
B. The Property is the first phase of a larger tract of real property which
Declarant intends to develop as a planned industrial development, to be known as "Carlsbad
Oaks North Business Park" ("Business Park"). The Business Park, including the current
configuration of Lots, is depicted on the map attached to this Declaration as Exhibit B.
C. By this Declaration, Declarant intends to establish certain covenants,
conditions and restrictions upon the Property and each and every portion thereof, which will
constitute a general plan for the management and development of the Property.
DECLARATION
NOW, THEREFORE, Declarant hereby declares that the Property and each
portion thereof is and shall be owned, conveyed, mortgaged, encumbered, leased, developed,
improved, used and occupied subject to this Declaration and the limitations, covenants,
conditions, restrictions, easements, liens and charges set forth herein, all of which are equitable
servitudes and shall run with the tide to the land and shall be binding upon and inure to the
benefit of all parties having or acquiring any right, title or interest in the Property or any portion
thereof and their respective heirs, successors and assigns. The purpose of this Declaration is to
enhance and protect, and provide a means of controlling and maintaining, the value, desirability
and attractiveness of the Property and every portion thereof, for the benefit of Declarant and
every Owner, in accordance with a general plan of subdivision, development and improvement.
ARTICLE 1
DEFINTTIONS
I.1 "Annexation Propertv" is defined as Lots 20 through 27 of the Tentative
Map. The Property and the Annexation Property comprise the portion of the Tentative Map
Property which is proposed for planned industrial development pursuant to the Specific Plan.
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I.2 "Annexed Property" means all or any portion of the Annexation Property
which is annexed to this Declaration pursuant to Article 12. Upon Recordation of a Declaration
of Annexation with respect to any Annexed Property, the Annexed Property shall be included as
part of the Property subject to this Declaration.
1.3 "Architectural Committee" means the Architectural Committee created
pursuantto Section 4.1.
1.4 "Aonlicant" is defined in Section 4.4.1
I.5 "Architectural and Landscape Standards" means the architectural and
landscape standards set forth in the Specific Plan, as supplemented by standards adopted from
time to time by the Board pursuant to Section 3.2.
].6 "Articies" means the Articles of Incorporation of the Association which
are or shall be filed in the Office of the California Secretary of State, as amended and
supplemented from time to time.
1, 7 "AssessmenP' means certain costs of the Association to be paid by the
Owners, as determined by the Board pursuant to Article 8, including Regular Assessments and
Special Assessments.
1.8 "Association" means the CARLSBAD OAKS NORTH BUSINESS PARK
OWNERS ASSOCIATION, a California nonprofit mutual benefit wrporation, its successors and
assigns, or if such name is unavailable, under such other name as shall be selected by Declarant
at the time of the Association's incorporation.
I.9 "BD�1Ps" is defined in Section 6.13.
I.10 "Board" or "Board of Directors" means the Board of Directors of the
Association, as the same may be constituted from time to time.
I. I i "Budaet" isdefined in Section 8.4.1.
I.12 "Buildin " means any structural improvement on any Lot which is
enclosed by exterior walls, floor and roof and is designed for human occupancy and/or the
conduct within of activities and business.
I.13 "Business Park" means the portion.of the Tentative Map Property other
than the Open Space Lots, as developed pursuant to the Specific Plan from time to time.
1.14 "B. ��aw_s" means the Bylaws of the Association, as amended and
supplemented from time to time.
L I S "Certificate of Pavment" is defined in Section 8.6.
I. I6 "Citv" means the City of Carlsbad, Califomia.
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I.17 " NLDT' is defined in Section 6.7.
I.18 °Common Area Lot 9" means Lot 9 of Final Map No. 14926, which will
be improved for use as a sewer pump station and a passive park and maintained as Common
Area.
I.19 "Common Areas" means the following areas, except to the extent
maintained by the Landscaping Maintenance District:
(a) Any open-space, slope and/or landscaped areas, and access routes
thereto, which are subject to use restrictions as open-space or slope areas pursuant to the
Tentative or Final Map;
(b) Perimeter manufactured slope banks, to the extent that temporary
irrigation and maintenance is required by the City after slope construction, for the period
of such required irrigation and maintenance; �
(c) The Required Landscape Setback Areas;
(d) Areas set aside for any entry monuments or signage installed by
Declarant for the Business Park, including the signs, landscaping, walls, lighting and
other Improvements located thereon;
(e) Storm drains, sewer lines, storm water pollution prevention
facilities and access routes thereto, excluding those maintained by any other
governmental entity or public or private utility agency;
(� Mini-park sites identified on the Tentative Map, including a site
within Common Area Lot 9 and a site within Open Space Preserve Lot ll;
(g) A public pedestrian trail located within public street rights-of-way
and Lot 11 of the Tentative Map, as required by the Specific Plan, except to the extent
such trail is maintained by the City;
(h) Any other Improvements or areas, whether located within the
Property or off-site, which the City or any other governmental authority may require
Declarant or the Owners to maintain as a condition to development of the Property; and
(i) Any other Improvements or areas, whether located within the
Property or off=site, over which all Owners and/or t6e Association have rights or
obligations of use, beneficial enjoyment or maintenance pursuant to the terms of this
Declaration.
The location of the initial Common Areas is identified on Exhibit C. Certain Common Areas
(and Improvements thereon) will be located within the Open Space Preserve Lots, as provided
for and subject to the provisions of the Open Space Preserve Grant of Easements. The Common
Areas indicated on Exhibit C may be modified from time to time, by Recordation of a
Supplemental Declaration executed by Declarant, to change the location or configuration of the
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Common Areas shown thereon or to add Common Areas to reflect the requirements of the City
or other governmental authorities; provided, however, that once an Owner has constructed
Improvements on a Lot, the Common Areas within such Lot may not be modified in a manner
that materially, adversely affects the Improvements or the use of such Lot by the Owner. The
Common Areas shown on Exhibit C may also be supplemented, from time to time, by a
Declaration of Annexation recorded by Declarant pursuant to Article 12.
L20 °Common Expenses" means the actual or estimated costs of:
(a) Maintaining, managing and operating the Association, including,
but not limited to, accounting, legal and other professional fees;
� (b) Maintaining, managing, operating and/or repairing the Common
Areas and the Improvements located thereon, including, but not limited to, the cost of
repair, operation, maintenance or reconstruction of Improvements and the cost of utilities,
irrigation, gardening and other services;
(c) Exercising.the Association's rights and performing its obligations
under the Open Space Preserve Grant of Easements;
(d) Maintaining the insurance required or permitted to be maintained
by the Association pursuant to this Declaration;
(e) Real property taxes and assessments.attributable to real property
owned by the Association, if any;
(� Exercising the powers and performing the duties of the Association
and the Board under this Declaration and the othe� Governing Documents;
(g) Maintaining any reasonable reserves for such purposes as may be
determined by the Board; and
(h) Any other amounts identified in this Declaration as "Common
Expenses."
121 "Construction Drawinas" is defined in Section 4.43.
I 22 "Count " means the County of San Diego, California.
I.23 "Davis-Stirlin�: Common Interest Development Act" means California
Civil Code Section 1350 et sea., as amended from time to time.
124 "Declarant" means Techbilt Construction Corp., a California corporation,
and successors and assigns of Techbilt Construction Corp. or a successor Declarant if: (a) such
successors and assigns hold or acquire record fee title to all or any portion of the Property; and
(b) Techbilt Construction Corp�or a successor Declarant executes and Records a document
which expressly names such par[y as a successor Declarant and assigns the rights and duties of
Declarant hereunder.
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I.25 "Declaration" means this Declaration of Covenants, Conditions,
Covenants and Restrictions for Carlsbad Oaks North Business Pazk, as amended or
supplemented from time to time.
126
I.27
"Declaration of Annexltion" is defined in Section 12.3.
"Events of Foreclosure" is defined in Section 10.7 hereof.
128 "Final Mau" means one or more final subdivision maps for Carlsbad Oaks
North Business Park which are based on the Tentative Map and filed in the Office of the County
Recorder, including all conditions of City approval thereof. As of the date of Recordation of this
Declaration the following Final Map has been recorded: Final Map No. 14926, recorded on
December 15, 2004, Final Map No. 15505, recorded January 23, 2007.
I.29 "Governing Documents" means this Declaration, including the Exhibits
attached hereto, the Articles, the Bylaws, and the Rules and Regulations, all as amended and
supplemented from time to time.
i.30 "Hazardous Materials" means any hazardous or toxic substances, materials
or wastes which are or become regulated by or subject to any local, state or federal governmental
authority, including, without limitation, any materials or substances which are (a) defined as
"hazardous wastes," "extremely hazardous wastes, "restricted hazardous wastes," "hazardous
substances," "hazardous materials," atomic materials" or "atomic substances" under any Laws,
(b) petroleum and any petroleum by-products, (c) asbestos, (d) urea formaldehyde foam
insulation, or (e) polychlorinated byphenals.
I.3 I °[murovements" means Buildings, accessory structures, underground
installations, slope and grade alterations, roads, curbs, driveways, gutters, parking areas, loading
areas, sidewalks, walkways, utilities, fences, walls and barriers, stairs, decks, poles, signs,
hedges, plantings, planted trees and shrubs, water lines, sewers, irrigation systems, electrical, gas
and other utility facilities, storm drains, drainage facilities, exterior lighting facilities and all
other structures or landscaping improvements of any kind, whether above or below the land
surface.
I .32
133
limited partnership.
"lnvasive I�lants" is defined in Section 3.12.
°Kilrov" means Kilroy Realty Finance Partnership, L.P., a Delawaze
I.34 °Kiiroy Lots" means the Lots to be required by Kilroy pursuant to the
Kilroy Purchase Agreement, which are depicted on Exhibit B attached hereto as Lots 4,5,7 and 8
and comprise approximately 25 acres.
L35 "Kilrov Purchase Agreement" means the agreement between Declarant (or
Seller) and Kilroy (as Buyer) dated August 12, 2005, providing for the acquisition by Kilroy of
the Kilroy Lots, as amended from time to time.
I .36
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"Landsca�� Maintenance District" is defined in Section 3.8.
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1.37 "Landscane Setback Ex�enses" is defined in Section 8.4.4(a).
1.38 "Laws" means, collectively, all laws, statutes, ordinances, rules,
regulations, requirements, permits, approvals, or certificates of occupancy promulgated by any
federal, state or local governmental entity with jurisdiction over the Property or any business, use
or operation thereoq whether now in effect or subsequently enacted, as amended and
supplemented from time to time.
I.39 "Lessee" means the owner of a leasehold interest in all or a portion of the
Business Park.
I.40 "Lot" means each separate legal lot included within the Property, as
subdivided or adjusted from time to time by any Recorded subdivision map, parcel map or lot
line adjustment, excluding the Open Space Preserve Lots and Common Area Lot 9. The Lots
included in the Property as of the date of Recordation of this Declaration are legally described on
Exhibit A and depicted on Exhibit B.
L41 "Maintenance and Operation Account" means an account into which the
Board shall deposit funds for maintenance and operation assessments, as described in
Section 8.9.
1.42 "Member" means every Owner who is a Member of the Association
pursuantto Section 2.5.
1.43 "Mortsaee" means any duly Recorded mortgage or deed of trust
encumbering a Lot. A"First Mortea¢e" means a Mortgage that has priority over any other
Mortgage encumbering a Lot.
1.44 "Morteaeee" means the mortgagee or,beneficiary under any MoRgage. A
"First Morteaeee" means the holder of a First Mortgage.
I.45 "Net Acrease" means, with respect to each Lot included in the Property
initially subject to this Declaration, the area identified as Net Acreage on Exhibit D, subject to
modifiCation upon resubdivision as described in Section 3.3. The Net Acreage of each Lot
included in any Annexed Property shall be set forth in the Declaration of Annexation for such
Annexed Property.
I.46 "Occupant" means any Person who has the legal right to occupy a portion
of the Property and is not an Owner or Lessee.
I.47 "Open S�ace Preserve Grant of Easements" is defined in Section 6.7.
I.48 "O�en Space Preserve Lots" means Lots 10, 11 and 12 of Final Map No.
14926, which will be improved, used, managed and maintained as described in Section 6.7 and
the Open Space Preserve Grant of Easements.
I.49 "Owner" means one or more Persons who alone or collectively are the
Record owner of fee simple title to a Lot, whether one or more Persons, including Declarant, but
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excluding those having or holding any such interest merely as security for the perf'ormance of an
obligation. In the event that the ownership of any Building or Improvements on any Lot shall be
severed from the land included in such Lot, whether by lease or by deed, the owner(s) of the
interest in the land and not the Building or Improvements shall be deemed the Owner of the Lot.
If a Lot is leased, the Owner of the fee title and not the Lessee of such Lot shall be deemed the
Owner regardless of the term of the lease.
1.50
other legal entity.
I.51
1.52
1.53
"Person" means a natural person, a corporation, a partnership, a trustee, or
"Plans" is defined in Section 4.8.
"Prelimina_ry Plan" is defined in Section 4.4.1
"Project A�krovals" is defined in Section 6.6.5.
1.54 "Property" means the real property legally described in Exhibit A,
including all facilities and Improvements located thereon, which is hereby subjected to this
Declaration, as supplemented from time to time by any Annexed Property added to the Property
by annexation pursuant to Article 12.
1.55 "Record" or "Recordation" means, with respect to any document, the filing
and recordation of said document in the Official Records of the Office of the County Recorder of
the County of San Diego, Califomia.
1.56 "Recular Assessment" is defined in Section 8.4.
L57 "Reauired Landscape Setback Area" means the landscaped, parking and
slope areas identified on Exhibit C, which shall be maintained by the Association as part of the
Common Areas, except as provided in Section 622.
L58 "Reserve Account" means an account into which the Board shall deposit
funds for contingencies, repairs and replacements, as described in Section 8.9. -
1.59 "Rules and Re�ulations" means those Rules and Regulations prepared by
Declarant to regulate the use, operation, management and maintenance of the Property, as fuRher
described in Section 2.3.9, as amended and supplemented by the Board.
I.60 "Suecial Assessment" is defined in Section 8.6.
I.61 "�ecific Plan" means the Carlsbad Oaks North Specific Plan, SP 211,
approved by the City on August 21, 2002, pursuant to Planning Commission Resolution
No. 5247, as amended from time to time, which covers approximately 414 acres consisting of
approximately 194.5 acres designated for Planned Industrial development (including roadways)
and approximately 219.5 acres designated for open space.
1.62
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"Settlement Monuments" is defined in Section 5.3.
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1.63 "Sunnlemental Declaration" means a supplement_to this Declaration as
permitted under this Declazation, which; when Recorded, shall have the same force and effect as
the terms of this Declaration.
I.64 "SWPPP" is defined in Section 6.1.3.
1.65 "Tentati��e Mao" means the tentative tract map for Carlsbad Oaks North,
Tract No. CT 97-13, as approved by the City on August 21, 2002, pursuant to Planning
Commission Resolution No. 5249. The Tentative Map covers the Tentative Map Property,
including the Property. The Final Map for the Property is based upon the Tentative Map.
].66 "Tentative Map Property° means the land covered by the Tentative Map,
including the Property and the Annexation Property as depicted on Exhibit B.
1.67 "Unavoidable Events" is defined in Section 4.53.
ARTICLE 2
THE ASSOCIATION
2.1 Or�:anization. The Association shall be formed as a California nonprofit
mutual benefit corporation.
2.2 Duties of Association. The Association shall have the duties set forth in
the Articles, the Bylaws and this Declaration, including, but not limited to, the following:
2.2. I Assessments. The Association shall fix, levy, collect and enforce
Assessments as further described in Article 8.
2.2.2 Common Areas. The Association shall maintain, repair, replace,
restore, operate, control and manage the Common Areas and all facilities and Improvements
located thereon, as further described in Article 6, except to the extent such maintenance has been
assumed by the Landscaping Maintenance District, the City, or other governmental agency or
public or private utility. The Association's rights and obligations relating to the Open Space
Preserve Lots, including the Common Areas located therein, are subject to the provisions of the
Open Space Preserve Grant of Easements.
22.3 Dischar�e of Liens. The Association shall discharge, by payment
if necessary, any lien against the Common Areas or any portion thereof, and, if such lien is a
result of the action of an Owner or Owners, the Association s6a11 assess the cost thereof as a
Special Assessment (as described in Section 8.5) to the Owner or Owners responsible therefor;
provided, however, that such Owner or Owners shall be given notice of the lien and the proposed
discharge at least fifteen (15) days prior to discharge by the Associatioq and the opportunity to
be heazd by the Association, either orally or in writing, at least five (5) days prior to the proposed
discharge and before a decision to discharge is made.
2.2.4 Insurance. The Association shall maintain such policy or policies
of insurance as it deems necessary, to the extent available at a reasonable cost, including but not
limited to: (a) all risk insurance covering all or any appropriate portion of the Common Areas;
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(b) commercial general liability insurance in the amount of at least One Million Dol(ars
($1,OOQ000) per occurrence, insuring Declarant, the Association, the Board, the Architectural
Committee and the Owners against all liability arising out of the ownership, use and maintenance
of the Common Areas; (c) worker's compensation insurance, as required by law; (d) directors'
and officers' enors and omissions policies, in form and amount determined by the Board; and
(e) insurance against any other risk which the Board considers appropriate.
2.2.5 Pavment of Espenses. The Association shall pay all expenses and
obligations incurred by the Association in the conduct of its business, in accordance with the
Budget, including, without limitation, all licenses, taxes or governmental charges levied or
imposed against the property of the Association.
2.3 Powers of Association. The Association shall have the following powers,
rights and duties, in addition to those provided elsewhere in this Declaration, the Articles and the
Bylaws and those powers granted to a nonprofit mutual benefit corporation pursuant to the
California Corporations Code:
2.3.1 Acquisition of PropertX. The Association shall have the power to
acquire (by gift, purchase or otherwise), own, ho1d, improve, operate, maintain, convey, sell,
lease, transfer, dedicate for public use or otherwise dispose of real or personal property in
connection with the affairs of the Association.
2.3,2 Assessments Liens. The Association shall have the power to levy .
and collect assessments pursuant to Article 8 and to perfect and enforce liens in accordance with
the provisions of Article ] 0.
2.3.3 Borcowine. The Association shall have the power to borrow funds
to pay costs of operation, secured by assessment revenues due for succeeding years or by
assignment or pledge of rights against delinquent Owners; provided, however, that the
a�rmative vote of a majority of the voting power of the Owners shall be required to borrow,
during any calendar year, in excess of an amount equal to Ten Thousand Dollars ($10,000)
multiplied by the number of Lots included in the Property from time to time. Such borrowing
may be from Declazant if Declarant agrees to advance funds; and, in such event, Declarant shall
receive, as interest, no more than the published Wall Street Journal Prime Rate plus one percent
(1%) as interest.
2.3.4 Contracts. The Association shall have the power to contract for
goods and/or services for the Common Areas or for the performance of any power or duty of the
Association, subject to limitations set forth elsewhere in this Declaration, the Articles or the
Bylaws. The Association's power to contract shall include, but is not limited to, the right to enter
into agreements with one or more other owners' associations for the purposes described in this
Section.
2.3.5 Dele.ae tion. The Association shall have the power to delegate its
authority and powers to committees, officers or employees of the Association.
2.3.6 Enforcement. The Association shall have the power to enforce this
Declaration pursuant to Article 10.
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23.7 Manatrer. The Association shall have the power to employ a.
manager or other Person and to contract with independent contractors or managing agents to
perform all or any portion of the duties and responsibilities of the Association, provided that the
term of any contract with a manager or managing agent shall not exceed one (1) year and may
provide for the right of the Association to terminate the contract immediately for cause and
otherwise on thirty (30) days' written notice. The Association may contract with Declarant or an
affiliate of Declarant pursuant to this Section. The initial manager shall be Spectrum Property
Management.
2.3.8 Security Services. The Association shall have the power to
provide, or to contract for the provision of, securiry patrols or other security measures, or both, as
the Board deems necessary.
2.3.9 Rules and Regulations. The Board shall also have the power to
amend and/or supplement the Rules and Regulations as it deems reasonable, provided such
amended or supplemental rules and regulations are not inconsistent with the Governing
Documents. The Rules and Regulations, as amended and supplemented from time to time, shall
be binding upon Owners and other Occupants of the Lots. The Rules and Regulations may
include guidelines interpreting the Architectural and Landscape Standards.
2.3.10 Variances. The Board, acting for the Association, shall have the
power to grant reasonable variances from the improvement standards and restrictions set forth in
Article 3 of this Declaration from time to time, as the Board may deem appropriate, in its sole
discretion, in order to overcome practical difticulties and to prevent unnecessary hardship in the
application of the provisions to one or more Lots; provided, however, that: (a) a variance shall
not materially injure any of the Lots or Improvements on the Property; and (b) the Owner
seeking the variance shall otherwise be subject to and conform with all applicable Laws. Any
variance granted pursuant to this Section shall be limited to the matters specifically covered
thereby and shall not constitute a waiver of any other provision of this Declaration as applied to
any Person or property.
2.4 Board of Directors.
2.4. I Initial Board. The initial Board of Directors of the Association
shall consist of three (3) directors, who shall be appointed by Declarant upon the incorporation of
the Association; provided, however, that if Kilroy acquires the Kilroy Lots pursuant to the Kilroy
Purchase Agreement, Kilroy shall have the right to appoint one (1) of the three (3) initial
directors. The initial directors appointed as described above shall hold office until the first
annual meeting of Members pursuant to Section 2.7.
2.4.2 Subsequent Board. At the first annual meeting ofMembers, a
subsequent Board consisting of five (5) directors shall be elected, and such Board shall serve
until the next annual meeting, however, as long as Declarant and Kilroy are the only Owners, the
Board shall remain at three (3) members, and Kilroy shall have the right to appoint one (1) board
member. At each subsequent annual meeting, except as may be otherwise provided by the
Bylaws, the Members shall elect a Board who shall serve until the next annual meeting.
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2.43 Administration. Except as to matters requiring the approval of
Members as set forth in this Declaration, the Bylaws or the Articles, the affairs of the Business
Park shall be administered by the Association, acting through its Board, officers and agents in
accordance with the provisions of this Dedaration, the Bylaws and the Articles.
2.5 Association Membershio.
2.5. I Apnurtenant to Lot OwnershiR. Upon becoming the Record
Owner of a Lot, an Owner shall automatically become a Member of the Association and shall
remain a Member until such time as he ceases to be an Owner for any reason, at which time his
membership in tlie Association shall automatically cease. Such membership shall be appurtenant
to and pass with the ownership of the Lot. There shall be only one membership attributable to
each Lot. Members�shall be subject to the provisions of this Declaration, the Articles and the ,
Bylaws. Notwithstanding that membership in the Association shall be held by an Owner, this
Declaration is binding upon Lessees and Occupants.
2.52 Transfer of Association Membershin. Membership in the
Association shall not be transferred, pledged or alienated in any way, except a transfer upon
conveyance of a Lot to a new Owner; provided, however, an Owner, upon giving written notice
to the Association, may grant to a Lessee who leases an entire Lot, for a lease term in excess of
five (5) years, a power coupled with an interest to act as the Owner's agent and proxy in all
matters relating to the Association, which power and proxy shall automatically terminate upon
the Association's receipt of a written revocation of such proxy signed by the Owner of the Lot or
upon termination of the Lessee's tenancy for any reason, whichever occurs first. Any attempt to
transfer a membership, except as provided in this Section, shall be void and shall not be reflected
upon the Association's books and records. If the Owner of any Lot fails to transfer the
membership appurtenant thereto upon any transfer of the Lot, whether voluntary or involuntary,
the Association shall have the right to record the transfer upon its books and thereupon the
membership outstanding in the name of the prior Owner shall be null and void. The Association
shall have the right to impose a reasonable fee to cover the cost of documentation and clerical
services incurred with respect to the transfer of inembership interests on the books and records of
the Association.
2.6 Votin�; Ri_�hts.
2.6.1 Sole Votin�ehts of Declarant. So long as Declarant is the
Owner of Lots containing at least twenty-five percent (25%) of the total Net Acreage within the
Property, Declarant shall be the only Member entided to vote; provided that: (a) if Kilroy
acquires the Kilroy Lots pursuant to the Kilroy Purchase Agreement, Kilroy shall be entitled to
vote as a Class A Member, as described in Section 2.6.2(a) below, for each Lot owned by Kilroy
during the period of such ownership; and (b) Declarant may elect to authorize voting on the part
of all Members prior to expiration of such period by delivering a written notice of such election
to all of the Members.
2.62 Votin� Riehts of Members. Except during the period when
Declarant is the sole voting Member pursuant to Section 2.6.1, the Association shall have two (2)
classes of voting membership:
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(a) Each Owner, but excluding Declazant for so long as the Class B
Membership is in effect, shall be a Class A Member and shall have one (1) vote for each
Net Acre included in the Net Acreage (rounded to the nearest tenth) owned by such
Owner.
(b) Declarant shall be the sole Class B Member and shall have ten (10)
votes for each Net Acre included in the Net Acreage rounded to the nearest tenth) owned
by Declarant. DeclazanYs Class B Membership shall terminate ten (10) years after the
later of (i) the date of Recordation of this Declaration, or the date of Recordation of the
latest Declaration of Annexation pursuant to Article 12. Upon termination of the Class B
Membership, Declarant, if it is then an Owner, shall be a Class A Member with the votes
described in subsection (a) above.
Such voting rights shall be adjusted to conform to any revisions to the Net Acreages, as
described in Section 3.3. When more than one Person owns a Lot, all such Persons collectively
shall be the Member for such Lot and the vote(s) for such Lot shall be exercised as they among
themselves determine; provided that, in no event shall more votes be cast with respect to such
Lot than could be cast if such Lot were owned by only one Person. If any such Person casts a
vote representing the Membership of the Lot, it will thereafter be conclusively presumed for all
purposes that he was acting with the authority and consent of all Persons constituting the
Member for such Lot. Any votes cast in violation of this provision shall be null and void. All
voting rights, whether exercisable by Declarant or by the Members, as the case may be, shall be
subject to the restrictions and limitations provided herein and the other Governing Documents.
2.6.3 Aonrovals and Consents. Any provision of the Governing
Documents which requires the vote or written consent of the Members shall be satisfied by the
vote or written consent of a simple majority of the voting power of Members entitled to vote on
such matter, unless a different percentage is specifically provided for in this Declaration or the
Bylaws. The vote of a majority or specified percentage of the voting power of the Association
shall be deemed satisfied by either the vote of the specified percentage at a meeting duly called
and noticed pursuant to the provisions of.the Governing Documents or written consents signed
by the specified percentage of Members, all as provided in the Bylaws.
2.7 Annual A4embership Meetin�s. The Board may call the first annual
meeting of Members af any time, but in no event later than sixty (60) days after the eazlier of:
(a) Kilroy's acquisition of the Kilroy Lots pursuant to the Kilroy Purchase Agreement; or (b) the
conveyance of fifty-one percent.(51%) of the Lots initially subject to this Declaration by
Declarant to Owners other then Declarant. Thereafter, the Association shall hold an annual
meeting of the Members in accordance with the Bylaws.
2.8 Personal Liabilitv. No member of the Board or the Architectural
Committee, or of any committee of the Association, or any officer of the Association, or any
manager, or Declarant or any agent of Declarant, shall be personally liable to any Owner, or to
any other Person, including the Association, for any damage, loss or prejudice suffered or
claimed on account of any act, omission, error or negligence of any such Person made in good
faith and reasonably believed to be within the scope of their duties.
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AR77CLE 3
IA�IPROVENiENT STANDARDS AND RESTRICTIONS
3.1 GeneraL There shall be constructed and maintained on each Lot only
Improvements which: (a) are in compliance with the standards and restrictions contained in this
Article 3 and the Specific Plan; (b) are in harmony with the surrounding buildings and structures;
and (c) have received the prior written approval of the Architectural Committee, to the extent
required pursuantto Article 4.
3.2 Architectural and Landscape Standards. The initial Architectural and
Landscape Standards for the Property are set forth in the Specific Plan. The Architectural and
Landscape Standards shall be used by the Architectural Committee in reviewing proposed
Buildings and Improvements pursuant to Article 4. From time to time, the Board shall have the
right to adopt changes or additions to the Architectural and Landscape Standards, subject to the
following: (a) such standards shall not conflict with the architectural and landscaping
requirements of the Specific Plan but may include supplemental or more restrictive requirements
than the Specific Plan; (b) notwithstanding any other provision of this Declaration to the
contrary, for so long as Declarant is the Owner of any Net Acreage within the Property, the
Architectural and Landscape Standards may not be amended or supplemented without the prior
written consent of Declarant, which consent it may withhold in its sole and absolute, yet good
faith discretion; and (c) if Kilroy acquires the Kilroy Lots pursuant to the Kilroy Purchase
Agreement, then, for as long as Kilroy owns at least fifiy percent (50%) of the total Net Acreage
of the Kilroy Lots, the Architectural and Landscape Standards may not be amended or
supplemented without the prior written consent of Kilroy, which consent shall not be
unreasonably withheld or delayed. .
3.3 Net Acreage Detennination. The Net Acreages set forth in Exhibit D have
been determined by Deciarant and its engineer by deducting from the gross area of each Lot the
estimated area of slopes in excess of five feet (5') in height, except to the extent such slope areas
could be credited to satisfy City setback requirements, based upon currently existing conditions
and City requirements, and adding driveway areas in excess of the setback requirements. The
Net Acreage for each Lot included in any Annexed Property shall be similarly estimated by
Declarant and its engineer, based upon conditions and City requirements existing as of the date
of annexation, and set forth in the applicable Declaration of Annexation. The Net Acreage
determination for each Lot, and the percentage of the Net Acreage of each Lot in proportion to
the Net Acreage of all Lots within the Property, as shown on Exhibit D or any Declaration of
Annexation, are conclusive on each Owner and shall not be re-determined as a result of any
subsequent grading or development or the grant or reservation of easements across such Lot or
the conveyance, dedication, offer of dedication, taking by eminent domain or deed in lieu of such
taking of all or any portion of such Lot. If any Lou are merged under applicable subdivision
laws and regulations, the Net Acreage of the Lot after such merger shall be the aggregate Net
Acreage of the merged Lots prior to such merger. If any Lot or Lots are further subdivided by a
lot line adjustment or parcel or subdivision map, the Owners of the affected Lot(s) shall agree in
writing upon the allocation of the Net Acreage of the original Lot(s) (without reduction) to or
among the resulting subdivided Lots and deliver a copy of such allocation ageement to
Declarant and the Association. If the Owners fail to deliver such allocation agreement within
thirty (30) days after the resubdivision, then: (a) Declarant (or, at Declarant's option, the Boazd)
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shall reasonably allocate the Net Acreage to or among the resubdivided Lots; (b) such allocation
shall be conclusive on each Owner; and (c) the Owners of the affected Lots shall pay the costs
incurred by Declarant (or the Board) in connection with such allocation as a Special Assessment,
in proportion to the respective Net Acreages of the resubdivided Lots. Declarant or the Board
may Record from time to time a supplement to this Declaration to set forth the Net Acreages of
the Lots as then in effect. Notwithstanding the provisions of Section 112 below, any such
supplement to this Deciaration intended solely to reflect the Net Acreages shall be effective
when executed by Declarant or the Board and Recorded.
3.4 Maintenance of Lots. The exterior of all Buildings and other structures,
and all exterior lighting, exterior signs, walks, driveways, lawns and landscaping on each Lot
shall be maintained by the Lot Owner in good order, repair and condition and in accordance with
the architectural, landscape and other standards set forth in the Specific Plan and other applicable
City requirements, except to the extent that the maintenance of any portion of any Lot is the
responsibility of the Association pursuant to this Declaration. All exterior painted surfaces shall
be maintained by each Owner in a first-class condition and shall be repainted as needed in order
to maintain such condition.
3.5 Under�roundin<, of Utilit � L�. All electrical, telephone, cable and any
other public or private utility lines within the Property shall be placed underground.
3.6 Maintenance of Draina�e Facilities. The Owner of each Lot upon which
any drainage facilities or Improvements are located shall repair and maintain the same in a
reasonable operating condition according to their design, purpose and/or function, including, but
not limited to, the removal of all obstructions which may cause redirection or impedance of
drainage flow, regardless of the source or cause of such obstruction or impedance. No Owner
shall modify the grade or drainage of any lot or interfere with or obstruct the established surface
drainage pattern over any Lot, unless adequate altemative provision is made for proper drainage
and is first approved in writing by the Architectural Committee and the Ciry. As used herein,
"established drainage" is defined as the drainage which exists at the time the overall grading of a
Lot is completed by Declarant. Water from any Lot may drain into adjacent streets, but shall not
drain onto adjacent Lots unless an easement for such purpose is granted herein or on the Final
Map.
3.7 Subdivision of Lots. In the event of a merger, resubdivision, merger, or
lot line adjustment affecting one or more Lots: (a) each of the Lots created thereby shall be
subject to this Declaration and the other Governing Documents; and (b) the Net Acreage of the
Lot(s) prior to such resubdivision, merger or lot line adjustment shall be re-allocated as described
in Section 3.3. above.
3.8 Landscapins� Maintenance District. Each Owner shall take title to its Lot
subject to any and all assessments arising from City of Carlsbad Street Lighting and Landscaping
No. 1("Landscaping Maintenance District"). The Landscaping Maintenance.District was formed
to finance the maintenance and/or replacement of certain landscape areas located within or
benefiting the Properry and other real property. The Association may pay any assessment or
charge levied by the Landscaping Maintenance District against a Lot if the Lot Owner refuses or
fails to make such payment, and the Association may levy a Special Assessment against such Lot
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and Owner to reimburse the Association for such payment and its costs associated with such
payment.
3.9 Participation of O�vners in Re�c uired Pro_r� ams. Declarant and/or the
Association aze authorized to create and/or coordinate the implementation or activities of any of
the following programs which may be required pursuant to the Specific Plan or any other Project
Approvals, applicable Laws, or by the City or other governmental entity: (a) programs to
encourage usage of buses, carpools and vanpools and to provide incentives for car-pooling, flex-
time, shortened work weeks, telecommuting and other means of reducing vehicular miles
traveled or other traffic management system; (b) employer incentive programs to encourage the
placement of strategic bicycle storage lockers and the construction of safe and convenient
bicycle facilities; (c) a crime prevention program; and (d) a hazardous materials disclosure and
control progam. Each Owner of a Lot within the Property shall participate in and/or cooperate
with the above programs, at such Owner's expense, if the Board, in its sole and absolute yet good
faith discretion, shall deem such Owner's participation or cooperation to be necessary or
appropriate, or if such participation or cooperation by such Owner is required by any applicable
Law or govemmental entity.
3.10 Outdoor Storaee. No outdoor storage of materials, except as allowed by
the Specific Plan, shall be permitted unless required by the Ciry's Fire Chief. When so required,
the Owner shall submit and obtain the approval of the Fire Chief and the Planning Director of an
Outdoor Storage Plan, and thereafter comply with the approved plan.
3.1 1 Sieht Distance Corridors. Pursuant to City requirements, no structure,
fence, wall, tree, shrub, sign or other object over thirty (30) inches above the street level may be
placed or permitted to encroach within the area identified as a sight distance corcidor in
accordance with City Standard Public Street-Design Criteria, Section 8.B.3. Each Owner shall
maintain this condition on its Lot.
3.12 Im�asive Piants. No Invasive Plants shall be permitted on any Lot.
"Invasive Plants" means those species listed in the CaIEPPC List of Exotic Pest Plants of
Greatest Ewlogical Concern in California, as amended from time to time. A copy of the current
list of Invasive Plants, dated February, 2006, is attached hereto as Exhibit E. Each Owner:
(a) shall keep its Lot free of Invasive Plants; (b) shall pay the costs of removing Invasive Plants
from its Lot and any Invasive Plants which have propagated and spread from its Lot to adjacent
property, including but not limited to the Open Space Preserve Lots; and (c) shall pay all costs
(including, but not limited to, attorneys' fees and court costs) incurred by the Association and/or
any other Owner in enforcing this prohibition in the event of a violation by such Owner.
ARTiCLE 4
ARCHITECTURAL REVIEW
4.1 Architecturai Committee.
4. l. l Oreanization: Members. An Architectural Committee consisting
of not less than three (3) Persons ("Committee Members") shall be established to conduct
azchitectural review pursuant to this Article 4. Until such time as the Association is formed,
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Declarant shall have the right to appoint and replace all Committee Members and upon formation
of the Association, the Board shall have the right to appoint all Committee Members; provided,
however, that if Kilroy acquires the Kilroy Lots pursuant to the Kilroy Purchase Agreement, then
Kilroy shall have the right to appoint and replace one (1) of the three (3) for so long as Kilroy
owns at least fifty percent (50%) of the total Net Acreage of the Kilroy Lots. The term of the
Committee Members shall be one (1) year. Any Committee Member may resign from the
Committee, at any time, upon written notice to the Board. Any new Committee Member
appointed to replace a Committee Member who has resigned or been removed shall serve for
such Committee Member's unexpired term. Committee Members whose terms have expired may
be reappointed or reelected. A majority of the Committee may designate a representative to act
for it. The Committee may hire and pay consultants, architects or others to review plans,
specifications or other documents submitted pursuant to this Article 4.
4.1.2 Duties. The Architectural Committee shall have the following
duties:
(a) To consider and approve, conditionally approve or disapprove
Preliminary Plans, Construction Drawings and other documents required to be submitted
to the Architectural Committee pursuant to Article 4;
(b) In reviewing plans, specifications and other documents submitted
pursuant to this Article 4, to apply and enforce the standards and restrictions set forth in
this Declaration, including the Architectural and Landscape Standards; and
(c) To perform all other duties delegated to and imposed upon it by
this Declaration.
42 Aporoval Required. Unless and until plans and specifications have been
submitted to and approved in writing by the Architectural Committee pursuant to Section 4.4
below: (a) no Improvement, including any Building, fence, sign, wall or other structure or
landscaping, or any above, below or at grade tank, sump, pit, pond, lagoon or other device used
for the storage or treatment of any Hazardous Materials, shall be commenced, erected, installed
or maintained upon any Lot; (b) no exterior addition to or alteration of any Building or
Improvement shall be made; (c) no Lot(s) be subdivided, merged or lot line adjusted; and (d) no
grading or drainage on a Lot shall be modified; and (e) no modification shall be made by any
Owner to the Required Landscape Setback Areas on such Owner's Lot. The Board shall have the
exclusive right to grant variances from the restrictions set forth in this Declaration, induding the
Architectural and Landscape Standards, so long as any such variances would not, in the good
faith estimation of the Board, detrimentally affect the development scheme and quality of
Improvements within the Property. Declarant and Declarant's affiliated companies shall comply
with these CC&Rs and any Architectural and Landscape Standards but shall not be required to
submit it's building projects to the Architectural Committee for approval. Declazant's �liated
companies shall be any entities which Declarant in writing designates as affiliates from time to
time.
4.3 Basis for Disa�provaL The Architectural Committee may disapprove any
and all plans and specifications submitted hereunder based upon any of the following:
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(a) Failure to comply with any of the provisions of this Declaration,
including the Architectural and Landscape Standazds;
(b) Failure to comply with the Specific Plan or any other Project
Approvals or City development standards and regulations applicable to the Property;
(c) Objection to the color scheme, finished proportions, style of
architecture, height, bulk or appropriateness of any proposed Improvement in relation to
the Lot or other Lots, or in relation to other Improvements which are existing or proposed
and approved by the Committee;
(d) Incompatibility of exterior design or materials with existing
structures and the topography and scenic resources of the area;
(e) Objection to the landscape plan, including conformity of landscape
design or materials with street landscaping, existing or proposed landscaping approved by
the Architectural Committee for other Lots, or the Architectural and Landscape
Standards;
(fj Visual or aesthetic impact;
(g) The effect of the location and use of the Improvements on
neighboring sites and the operations and uses thereon;
(h) Objection to the finished grading plan for any Lot, including the
final ground elevation of the site and the design, facing and height of the Building
elevations in relation to nearby streets and adjacent sites;
(i) Failure to adequately screen trash areas and mechanical equipment
from view from adjacent streets and properties;
(j) Inadequacy of off-street parking or objection to the design and
location of the parking areas; and
(k) Any other matter which, in the reasonable judgment of the
Committee (which shall be applied in a non-discriminatory manner), would render the
proposed Improvements or use inharmonious with the general plan for improvement of
the Business Pazk or with Improvements then existing or proposed and approved by the
Architectural Committee for other Lots within the Business Park.
In reviewing or approving any submittal, the Committee shall not be responsible for determining
compliance with any governmental land use or building construction ordinances or requirements.
In the event of any inconsistency between the requirements of the Specific Plan and the
requirements of this Declaration or the Architectural and Landscaping Standards, the more
restrictive of such restrictions and/or requirements shall control. The Architectural Committee
shall be solely responsible for interpreting any such inconsistencies.
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4.4 Annroval Procedure.
4.4. I Submission of Preliminary Plan. Each Owner or its authorized
agent ("Applicant") shall deliver to the Architectural Committee preliminary plans or schematic
drawings ("Preliminary Plan"), in such form and containing such information as may be required
by the Architectural Committee, prior to the commencement of any matter which requires
approval pursuant to Section 42. The Preliminary Plan shall consist of not less than two (2) sets
of scaled drawings, labeled with the Applicant's name, address and telephone number. All
azchitectural renderings and schematic drawings shall be signed and dated by the Applicant. The
Preliminary Plan shall include, but is not limited to, the following elements:
(a) A site development plan showing the nature, shape, height, design
and location of proposed Improvements or exterior additions to Improvements, including,
but not limited to, existing and proposed building azeas, setbacks, driveways, parking
areas, walkways, landscaped areas, storage areas, and refuse azeas;
(b) A drainage and grading plan;
(c) A sign plan;
(d) A landscaping plan;
(e) A lighting plan;
(� Architectural elevations and exterior materials, colors and finishes;
and
(g) Detailed plans and specifications for any device, inclusive of
monitoring and spill or leak control systems, to be used for the storage or treatment of
Hazardous Materials.
4.4.2 Anoroval of Prelimina ,ry Plan. The Architectural Committee shall
approve or disapprove the Preliminary Plan, in writing, within fifteen (15) business days after the
acknowledged receipt by the Architectural Committee of the complete Preliminary Plan. The
Architectural Committee shall have the right to request from any Applicant such supplementary
materials as the Architectural Committee reasonably req�ires to complete its review of the
Preliminary Plan, and the 15-business-day approval period shall be extended to allow for the
receipt and review of such supplementary materials by the Architectural Committee. If the
Architectural Committee fails to approve or disapprove the Preliminary Plan during the required
period, it shall be conclusively presumed that the Architectural Committee has approved the
Preliminary Plan: The Architectural Committee's approval shall designate any portions of the
Required Landscape Setback Areas which must be maintained by the Lot Owner, pursuant to
Section 622.
4.4.3 Submission of Construction Drawin�:s. After approval of the
Preliminary Plan, and prior to the commencement of any activity which requires approval
pursuant to Section 42, and concurrently with, or prior to, the submission of such drawings to
the City or any other governmental agency, the Applicant shall deliver to the Architectural
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Committee detailed construction drawings ("Construction Drawings") consistent with the
approved Preliminary Plan. The Construction Drawings shall include the Building Area of the
Improvements measured in the same manner as, and in no event greater than, the Ma�cimum
Building Area for such Lot.
4.4.4 Aouroval of Construction Drawines. The Architectural Committee
shall approve or disapprove the Construction Drawings, in writing, within fifteen (15) business
days after the acknowledged receipt by the Architectural Committee of the complete
Construction Drawings, including, but not limited to, any changes to the Construction Drawings
required by the Ciry. The Architectural Committee shall have the right to request from any
Applicant such supplementary materials as the Architectural Committee reasonably requires to
complete its review of the Construction Drawings. The 15-business-day approval period shall be
accordingly extended to allow for the receipt and review of such supplementary materials by the
Architectural Committee. If the Architectural Committee fails to approve or disapprove the
Construction Drawings during the required period, it shall be conclusively presumed that the
Architectural Committee approves the Construction Drawings.
4.4.5 Fees. The Architectural Committee may establish commercially
reasonable and non-discriminatory fees for the revision of any Preliminary Plan, Construction
Drawing, approval certificate or other matter subject to the Architectural Committee's approval.
Such fees shall be nonrefundable and paid by the Applicant concurrently with submittal of the
matter to be approved. The fees shall be in amounts set by the Architectural Committee, in its
commercially reasonable discretion, to cover anticipated architectural and engineering review
fees and other third-party costs of approval, and such amounts may be modified or waived from
time to time by the Architectural Committee, in its discretion.
4.5 Proceedine With Work
4.5. I Commencement of Improvements. Upon receipt of approval of the
Construction Drawings from the Architectural Committee, the Applicant shall, as soon as
practicable, satisfy all conditions thereof and diligently proceed with the commencement and
completion of the Improvements in accordance with the approved Construction Drawings. If
work is not commenced within one (1) year after the date of such approval (or such later date
which may be submitted by the Applicant and approved by the Architectural Committee as part
of the Construction Drawings, as such commencement deadline may be extended as a result of
Unavoidable Delays pursuant to Section 4.53 below), then the approval given shall be deemed
revoked, unless the Architectural Committee, upon written request by the Applicant made prior
to the commencement deadline, extends the time for commencing work, in writing. Such
extension shall not be unreasonably withheld by the Architectural Committee.
4.52 Completion. Improvements approved by the Architectural
Committee shall be completed within one (1) year following the commencement of construction,
as such completion deadline may be extended as a result of Unavoidable Delays pursuant to
Section 4.5.3 below, or as may be extended by the Architectural Committee, in writing, pursuant
to request made by the Applicant prior to the completion deadline.
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4.5.3 Unavoidable Events. If an Owner's performance is delayed or
impeded by Unavoidable Events, the deadlines for commencement and for completion of work
described in Sections 4.5.1 and 4.5.2 above shall be extended for the additional time reasonably
required as a result of such Unavoidable Events, but not to exceed an additional period of one (1)
yeaz. As used herein, "Unavoidable Events" means fire, casualty or other acts of God; strikes,
lock-outs, or labor disputes; inability to procure materials or services or reasonable substitutes
therefor; failure of power or other utilities; governmental actions or restrictions; war, civil
commotion or acts of terrorism; prolonged rain or other unusual weather conditions; and other
similar events beyond the reasonable control of the Owner obligated to perform, but excluding
financial inability or general economic conditions.
4.6 Aooroval Certificate. Within fifteen (15) business days a8er delivery of a
written request therefor and provided any fee required pursuant Section 4.4.5 has been paid, the
Architectural Committee sha11 deliver a certificate stating as of the date thereof whether any
Preliminary Plan and/or Construction Drawings submitted to the Architectural Committee have
been approved. At any Owner's request, and upon payment of a reasonable fee to be determined
by the Architectural Committee, the Architectural Committee shall make an inspection of any
completed Improvements and deliver to such Owner a cerfificate stating whether such
Improvements comply with the provisions of this Declaration, including the Architectural and
Landscape Standards.
4.7 Failure to Obtain Approval. Any Improvements located on any Lot for
which the Owner has failed to obtain the approval of the Architectural Committee, if required,
and to which the Architectural Committee fails to object by sending written notice to such
Owner on or before one (1) year after completion of such Improvements, shall be deemed
approved. If the Architectural Committee delivers timely notice of objection to such
Improvements to the Owner of the Lot, the Owner shall immediately provide the Architectural
Committee with complete as-built plans for the Improvements, together with the fees required
pursuant to Section 4.4.5. The Architectural Committee shall then review and either approve or
disapprove the submitted as-built plans in accordance with the provisions of Section 4.4.4 above.
In the event of disapproval of the as-built plans, the Architectural Committee shall provide the
Owner with written notice of such disapproval, together with a description of the reasonable
remedial measures which must be taken by such Owner to obtain the approval of the
Architectural Committee for the completed Improvements. The Owner shall then use
commercially reasonable efforts to comply with the remedial measures to secure the approval of
the Architectural Committee for the completed Improvements. The Association shall have the
right to commence legal proceedings to enjoin any work commenced on any Improvements
which have not been approved in advance by the Architectural Committee as required by this
Declaration. The Owners hereby agree to waive, to the fullest extent permitted by applicable
law, any and all requirements that the Association post a bond or other security, monetary or
otherwise, as a condition to maintaining such action to enjoin work commenced upon any
Improvements without having obtained the prior approval of the Architectural Committee.
4.8 Nonliabilit, f��roval ofPlans. Declazant, the Association, the Board,
fhe Architectural Committee and/or the Committee Members shall not be liable in damages or
otherwise by reason of any mistake in judgment, negligence, or nonfeasance arising out of or in
connection with: (a) the approval or disapproval or failure to approve or disapprove any
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Preliminary Plan, Construction Drawings, or other plans, specifications, drawings or documents
(collectively, 'Plans") submitted for approval pursuant to this Artide 4, which approval or
disapproval is given or withheld in accordance with the terms and conditions of this Declaration;
(b) the construction or performance of any work or Improvement by an Owner pursuant to Plans,
whether or not approved pursuant to this Article 4; (c) any defects in any Plans or any work,
whether or not pursuant to approved Plans; (d) the development of any Lot within the Property or
the performance of any work pursuant to approved Plans; or (e) the execution and filing of a
certificate pursuant to Section 4.6, whether or not the facts therein are correct, provided that the
Architectural Committee has acted in good faith in issuing such certificate on the basis of such
information as it may possess. Each Owner, Lessee, Occupant or other Person who submits
Plans or other documents to the Committee shall indemnify, protect, hold harmless and defend
Declarant, the Association, the Board, the Architectural Committee, the Committee Members,
and the agents of each such party, from and against all liabilities, losses, claims, damages, costs
or expenses (induding reasonalile attomeys' fees) suffered or claimed by any Person on account
of any of the matters described above in this Section. Each Person who submits Plans agrees, by
submission of such Plans, and every Owner agrees by acquiring title to his Lot, that he will not
bring any action or suit against any such parties based on the matters described above. In
reviewing, approving and/or disapproving Plans pursuant to this Declaration, the decisions of the
Architectural Committee may be based solely on aesthetic grounds, and the Architectural
Committee and/or the Committee Members shall not be deemed to have made any representation
or warranty regarding the suitability, adequacy or completeness of such Plans. No approval or
comment shall be considered an approval of the Plans from an engineering perspective or a
determination that the Plans are suitable to meet building, environment or engineering design
standards or that the Improvements have been built in accordance with such Plans, drawings
and/or specifications. The Architectural Committee need not be comprised, in whole or in part,
of licensed engineers and/or architects.
4.9 Waiver of Approvais and Conflict of Interest. Notwithstanding any other
provision of this Declaration, Declarant shall not be required to submit any Plans to the
Architectural Committee for approval. The Committee Members may be appointed by, affiliated
with or employed by Declarant. Neither Declarant nor any Committee Member shall have any
liability to any Owner or other Person by reason of decisions which may benefit Declazant
rendered in good faith by the Architectural Committee or any Committee Member while such
relationship exists, and each Owner hereby waives any claim of liability against Declazant, the
Architectural Committee or any Committee Member based on any conflict of interest based upon
such relationship.
4.10 Apneal. In the event the Preliminary Plan or the Construction Drawings
submitted to the Architectural Committee for approval are disapproved, the Applicant may
appeal in writing to the Board, by delivering a written request for appeal to the Board no later
thaa thirty (30) days following the final decision of the Architectural Committee. Upon receipt,
the Board shall submit such request to the Architectural Committee for review, and the
Architectural Committee's written recommendations regarding the appeal shall be submitted to
the Board. Within forty-five (45) days following receipt of the request for appeal, the Boazd
shall render its written decision. The failure of the Board to render a decision within said 45-day
period shall be deemed a decision to uphold the Architectural Committee's decision.
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4.1 I Submission of Plans to City or Government. Plans shall be submitted to
the Architectural Committee pursuant to this Article prior to or concurcently with submittal of
the Plans or related applications to the City for approvaL If Plans approved by the Architectural
Committee are subsequently modified by the City or other governmental action, the
modifications must be submitted to and approved by the Committee in writing, pursuant to the
procedures specified in this Article. Upon City or other governmental approval of any such
Plans, whether or not they have been modified, one complete approved set shall be provided to
the Architectural Committee.
4.12 Compliance With Governmental Regulations. Nothing herein contained
shall be deemed to constitute approval of any use which is inconsistent with the Specific Plan,
the Project Approvals or any applicable Laws, and compliance with the standards or
requirements of the Specific Plan shall not constitute compliance with the standards or
requirements of this Declaration if such standards or requirements differ. Each Owner of each
Lot shall have the sole responsibility for obtaining and/or renewing any and all permits, licenses,
certificates and other approvals which may be required by any govemmental entiry with respect
to such Owner's development and/or use of such Owner's Lot. Each Owner hereby agrees to
indemnify, protect, hold harmless and defend, with counsel satisfactory to Declarant, Declarant
from any and all liability, cost or expense it may incur in connection with or as a result of such
Owner's failure to comply with the Specific Plan or applicable Laws, or with any of the
restrictions or covenants, contained in this Declaration, or arising out of such Owner's activities
on the Property.
ARTICLE 5
REGULATION OF USES
5, I Permitted Uses. Each Lot shall be used only for uses in conformity with
the Specific Plan and all applicable zoning and use ordinances, regulations and requirements.
Any other use shall require the approval of the City and the prior written consent of the Board.
The Board shall not be liable for any damage, loss or prejudice suffered or claimed by any
Person on account of the ganting or withholding of its consent to any use pursuant to this
Section 5. I, provided the Board has acted in good faith on the basis of such information as it may
possess.
5.2 Prohibited Uses. The following uses shall not be permitted: residential
uses, trailer courts, mobile home pazks, or recreational vehicle campgrounds; junk yazds;
wmmercial mining or quarty operations; commercial excavation of building or construction
materials (except in the usual course of construction of improvements); dumping, disposal,
incineration or reduction of garbage, sewage, ofial, dead animals or refuse; stockyards and
slaughter of animals; refining of petroleum or of its products; smelting of iron, tin, zinc or other
ores; cemeteries; jails and honor farms; labor camps and migrant workercamps; petroleum
storage yards or any activity which results in the release, disposal or discharge of Hazardous
Materials on the Property; and/or any use which would be offensive by reason of odor, fumes,
dust, smoke, noise or pollution or hazazdous by reason of excessive danger of fire or explosion.
In addition, no portion of the Property shall be used for the outdoor storage of any materials,
equipment, machinery, products or other property, except as permitted under Section 3.10.
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5.3 Settlement Monitoring Eauinment Program and Easements. One or more
surface settlement monuments ("Settlement Monuments") have been or may be installed on one
or more Lots within the Property for purposes of monitoring the settlement of filL The affected
Lots and the specific location of the Settlement Monuments thereon shall be determined by
Dedarant prior to or concurrently with the first sale of the affected Lot by Declarant to an
Owner. Declarant hereby reserves to itself, together with the right to grant and transfer the same
to the Association, an exclusive easement for the placement of Settlement Monuments on one or
more Lots as determined by Declarant prior to such first sale, and a nonexclusive easement for
ingress and egress to and from each Settlement Monument for the purpose of monitoring and
maintaining the same. No Owner, Lessee or Occupant of a Lot on which a Settlemenf
Monument is located shall do anything which impairs the integrity of or access to the Settlement
Monuments; provided, however, subject to such reasonable requirements as Declarant may
impose, the Owner of a Lot on which one or more Settlement Monuments are located may move
such Settlement Monument(s) to another location on its Lot reasonably approved by the City.
5.4 Hazardous Materials.
5.4.1 General and Specific Prohibitions.
(a) No Owner, Lessee or Occupant of a Lot shall: (i) generate, use,
release, store, transport or handle any Hazardous Material within any portion of the
Property except on that Owner's, Lessee's or Occupant's Lot and in accordance with all
applicable Laws; (ii) dispose of any Hazardous Material within any portion of the
Property or, unless permitted pursuant to Section 5.1, operate a Hazardous Materials
treatment facility within the Property; or (iii) install, operate or maintain any above,
below or at grade tank, sump, pit, pond, lagoon or other storage or treatment vessel or
device on or about its Lot unless Plans therefor have been submitted to and approved by
the Architectural Committee pursuant to Article 4.
(b) No project facilities located within 1,000 feet of any residential
dwelling unit shall store, handle, or use toxic or highly toxic gases as defined in the most
cunently adopted fire code at quantities that exceed the exempt amount as defined in the
most curcently adopted fire code.
(c) Facilities that store, handle, or use regulated substances as defined
in the California Health and Safety Code 25532(g) in excess of threshold quantities shall
prepare risk management plans for determination of risks to the community.
(d) Facilities that store, handle, or use any quantity of a toxic or highly
toxic gas as defined in the most currently adopted fire code, which are also regulated
substances as defined in the Califomia Health and Safety Code 25532(g) shall prepaze an
offsite consequence analysis ("OCA"). The analysis shall be performed in acwrdance
with Title 19 of the Califomia Code of Regulation 2750.2 through 2750.3. If the OCA
show the release could impact the residential community, the facility will not store,
handle or use the material in those quantities. If a decrease in the quantity of material
reduces the distance to toxic endpoint to where the community is not impacted, the
facility shall be able to utilize the material in that quantity.
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5.4.2 Duty To Notifv. Each Owner shall immediately notify the Board
of any of the following with respect to such Owners Lot: (a) any notices of violation or potential
or alleged violation of any Laws which the Owner shall have received from any governmental
agency concerning the use, storage, release and/or disposal of Hazardous Materials; (b) any and
all inquiry, investigation, enforcement, cleanup, removal or other governmental or regulatory
actions instituted or threatened with respect to Hazardous Materials relating to such Lot; (c) all
claims made or threatened by any third pazty relating to any Hazardous Materials relating to such
Lot; and (d) any release of Hazardous Materials on or about the Lot which such Owner or the
Lessee or Occupant of such Owner's Lot knows of or reasonably believes may have occurred.
No duty of any,kind on the part of the Board shall be implied or imputed as a result of the
Board's receipt of such information.
5.4.3 Compliance with Hazardous Materials Laws. Each Owner shall:,
(a) be responsible for the cleanup, removal, remediation and investigation of any Hazardous
Materials contamination of any portion of the Property which arises in connection with the use,
handling, storage, generation, release, disposal or transport of Hazardous Materials by such
Owner or any Lessee or Occupant of such Owner's Lot; (b) use its good faith diligent efforts to
comply with all orders, directives and requests of applicable governmental agencies with respect
to the cleanup, removal, remediation and/or investigation of such contamination; (c) comply with
the provisions of the Specific Plan restricting the use of Hazardous Materials; and (d) comply
with all Laws goveming the use, handling, storage, generation treatment, transpoR, release or
disposal of Hazardous Materials.
ARTICLE 6
A1r1INTENANCE AND USE OF CONIMON AREAS
6. I Maintenance Responsibilities of Association.
6. i. I GeneraL The administration of this Declaration and the
management of the Common Areas shall be vested in the Association, subject to delegation of
specific maintenance obligations pursuant to this Article 6. Subject to the obligation of each
Owner to pay Assessments as provided in Article 8 and subject to the terms of this Article 6, the
Association shall operate, manage, maintain, repair, restore and reconstruct the Common Areas
and all facilities and Improvements located thereon in a condition and state of repair comparable
to other first-class business parks located in San Diego County, California. The Association may
commence maintenance of the Common Areas in phases, as Improvements to portions thereof
are completed. Maintenance by the Association of any portion shall commence upon completion
of the Improvements (if any) to such portion, as evidenced by a written notice from Declarant to
the Association together with a copy of any applicable notice of completion; provided, however,
Declarant shall wntinue to maintain any Common Areas or Improvements located thereon to the
extent they are covered by a maintenance or warranty bond in favor of the City. All Owners
shall be responsible for a proportionate share of the costs incurred by the Board pursuant to this
Article, through Assessments levied in accordance with Article 8.
6.1.2 Maintenance Activities. The Association's maintenance function
with respect to the Common Areas, except as otherwise delegated pursuant to this Article 6,
includes, but is not limited to, the following:
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(a) The maintenance of all Common Areas in accordance with the
Specific Plan, the conditions of approval of the Tentative and Final Map, other applicable
governmental requirements, the Open Space Preserve Grant of Easements, and Recorded
restrictions; �
(b) The maintenance and replacement, when necessary, of trees,
shrubs, ground cover and other landscape plantings or improvements installed on the
Common Areas by Declarant or its successors pursuant to landscape plans submitted to
and approved by the City;
(c) Clearing, grubbing and other maintenance of slopes and areas, as
required by the City or other governmental authorities, or as considered appropriate by
the Board;
(d) Removing all trash and refuse from the Common Areas;
(e) Cleaning, repairing and replacing all driveways and signs withi❑
the Common Areas (other than signs installed by an Owner as permitted hereunder); and
(� Maintaining, repairing and replacing a11 utility facilities within the
Common Areas, to the extent such work is not performed by a public or private utility
company, agency or district.
6.1.3 Maintenance of Drainaee and Poll�ition Control Facilities. The
Association shall maintain the storm drainage, storm water pollution control facilities, detention
basins and related access easements and improvements included in the Common Areas, as
defined in Section 1.19. The initial Common Areas are shown on Exhibit C. The Association
shall comply with the Storm Water Pollution Prevention Plan ("SWPPP") for the Property,
induding the use of best management practices ("BMPs") in acwrdance with City regulations to
reduce surface pollutants to an acceptable level prior to discharge to sensitive azeas. Each Lot
will include structural BMPs to remove anticipated pollutants from storm water runoff, and the
Lot Owner shall maintain such BMPs until such time as the City may decide to assume
maintenance responsibility.
62 Maintenance bv Lot Owners.
6.2.1 Extraordinary Maintenance or Repair. If the Board determines that
extraordinary maintenance or repair of any Common Area is being caused by a particular Owner
or its Lessee or Occupant, the Board may, in its sole and absolute yet good faith judgment, levy a
Special Assessment against such Owner and its Lot to defray the costs attributable to such
extraordinary maintenance or repairs. If activities on any Lot involving Hazardous Materials
result in contamination of the soil or groundwater in, under or around such Lot, the Boazd may,
at its election, cause such contamination to be investigated, mitigated, cleaned up, removed
and/or remediated if the Board determines, in its sole and absolute yet good faith judgment, that
(a) the Owner is failing to use diligent efforts to mitigate, remove or remediate such
contamination in accordance with the requirements of the applicable govemmental agencies; and
(b) such contamination has spread or threatens to spread from such Lot to any other Lot or any
Common Area. All costs and expenses of the Association, including attorneys' and consultants'
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fees, incurred in connection with the Board's investigation, mitigation, clean-up, removal or
remediation of such contamination may be charged against such Owner and its Lot as a Special
Assessment and.shall be paid by such Owner.
6.22 Required Landsca�e Setback Areas. Each Owner shall have a
right to modify the Required Landscape Setback Areas located on such Owner's Lot in order to
construct driveways and related Improvements or to utilize all or portions of such areas for
stormwater pollution control facilities, subject to the following conditions: (a) Plans for any
such modification shall be subject to approval by the Architectural Committee pursuant to
Article 4: (b) such Owner shall repair or replace, at its cost, all Common Area landscaping,
irrigation and drainage facilities damaged in connection with such construction or install
modified landscaping irrigation and drainage facilities pursuant to the approved Plans; and (c)
the Association shall not be obligated to maintain any driveways, modified landscaping or other
Improvements installed by an Owner, which shall be the responsibility of the Owner of the
applicable Lot.
6.2.3 Compliance With SWPPP. All Owners and tenants shall
coordinate efforts to establish or work with established disposal programs to remove and
properly dispose of toxic and hazardous waste products. Toxic chemicals or hydrocazbon
compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood
preservatives, and other such fluids shall not be discharged into any street, public or private, or
into storm drain or storm water conveyance systems. Use and disposal of pesticides, fungicides,
herbicides, insecticides, feRilizers and other such chemical treatments shall meet federal, state,
county and City requirements as prescribed in their respective containers. BMPs shall be used to
eliminate or reduce surface pollutants when planning any changes to the landscaping and surface
improvements.
6.3 Authority to Contract. The Association is hereby authorized to contract
with, in its discretion, any responsible Person to perform all or any portion of the Association's
management and maintenance responsibilities hereunder.
6.4 Perniitted Transfers of Common Areas.
6.4. I To the Citv or Other Public A e�ncy. Declarant shall have the right
to dedicate or transfer all or any portion of the Common Areas owned by Declarant to the City or
any other public agency, authoriry or utility for public park, public easement or utiliry easement
purposes. Declarant shall have the right to convey the Open Space Preserve Lots to CNLM,
subject to the provisions of the Open Space Preserve Grant of Easements.
6.42 To the Association. Declarant may convey any or all of the
Common Areas owned by Declarant to the Association.
6.5 Destruction. Restoration. As soon as practicable after the damage or
destruction of all or any portion of the Common Areas, the Board shall: (a) obtain bids from at
least two (2) reputable contractors, licensed in Califomia, which bids shall set forth in detail the
work required to repair, reconstruct and restore the damaged areas to substantially the same
condition as existed prior to such damage and the itemized cost of such work; and (b) determine
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the amount of all insurance proceeds available to the Association for the purpose of effecting
such repair, reconstruction and restoration. If the insurance proceeds available to the Association
are sufficient to effect the total repair, reconstruction and restoration of the damaged or destroyed
areas, then the Association shall cause such to be repaired, reconstructed and restored to
substantially the same condition as existed prior to such damage. If the proceeds of insurance
available to the Association aze insufficient to cover the cost of repair, reconstruction and
restoration, the Board shall levy a Special Assessment for all additional funds needed to comply
with the obligation of the Association to maintain the Common Areas in accordance with this
Article 6.
6.6 Citv Requirements. The following provisions are included in this
Declaration for the benefit of the City, as required by the conditions of Ciry approval of the
Tentative Map:
6.6.1 General Enforcement by the City. The City shall bave tbe right,
but not the obligation, to enforce the provisions ofthis Section 6.6.
6.62 Notice and Amendment. A copy of any proposed amendment to
this Declaration shall be provided to the City in advance. If the proposed amendment affects the
City, the City shall have the right to disapprove. A copy of the final approved amendment shall
be transmitted to the City within thirty (30) days for the official record.
6.6.3 Failure of Association to Maintain Common Areas. In the event
that the Association fails to maintain the Common Areas as provided in Article 6, Section 6.1,
the City shall have the right, but not the duty, to perform the necessary maintenance. If the City
elects to perform such maintenance, the City shall give written notice to the Association, with a
copy thereof to each Owner of a Lot within the Property, setting forth with particulariry the
maintenance which the Ciry finds to be required and requesting that the same be carried out by
the Association within a period of thirty (30) days from the giving of such notice. In the event
that the Association fails to carry out such maintenance of the Common Areas within the period
specified by the City's notice, the City shall be entitled to cause such work to be completed and
shall be entitled to reimbursement with respect thereto from the Owners as provided herein.
6.6.4 Soecial Assessments Levied bv the City. In the event the City has
performed the necessary maintenance of any Common Areas, the City shall submit a written
invoice to the Association for all costs incurred by the Ciry to perform such maintenance of the
Common Areas. The City shall provide a copy of such invoice to each Owner, together with a
statement that if the Association fails to pay such invoice in full within the time specified, the
City will pursue collection against the Owners pursuant to the provisions of this Section. Said
invoice shall be due and payable by the Association within twenty (20) days of receipt by the
Association. If the Association sha11 fail to pay such invoice in full within the period specified,
payment shall be deemed delinquent and shall be subject to a late charge in an amount equal to
six percent (6%) of the amount the invoice. Thereafter, the City may pursue collection from the
Association by means of any remedies available at law or in equity. Without limiting the
generality of the foregoing, in addition to all other rights and remedies available to the City, the
City may levy a special assessment against the Owners of each Lot in the Property for a shaze of
the invoice, plus the late charge, which shall be allocated among the Owners in proportion to the
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Net Acreage of each Owner's Lot. Such special assessment shall constitute a charge on the land
and shall be a continuing lien upon each Lot against which the special assessment is levied.
Each Owner in the Property hereby vests the City with the right and power to levy such special
assessment, to impose a lien upon their respective Lot, and to bring all legal actions and/or to
pursue lien foreclosure procedures against any Owner and his/her respective Lot for purposes of
collecting such special assessment in accordance with the procedures set forth in Article 10 of
this Declaration.
6.6.5 Compiiance with Specitic Plan. All development within the
Business Park shall be entirely consistent with all requirements of the Specific Plan, which is
incorporated by reference into this Declaration. The Property is also subject to other applicable
City permits, approvals and regulations, including the Zone 16 Local Facilities Management
Plan, the Tentative Map, the Final Map, Hillside Development Permit 97-10, Planned Industrial
Permit 02-02, and Special Use Permit 97-07, as approved by the City. The "Project Approvals"
means, collectively, the Specific Plan and all other City permits, approvals and regulations
applicable to the Property.
6.6.6 Landscape Maintenance Responsibilities. The Association and
individual Lot Owner landscape maintenance responsibilities shall be as set forth by the
approved landscape plan on file at the City of Carlsbad Planning Department. The Association's
maintenance responsibility shall include the passive recreation areas on Common Area Lot 9 and
north of Faraday Avenue, which shall serve employees of the Business Park.
6.6.7 Gnviromnental Miti�ation. All development within the Property
shall comply with environmental mitigation measures set forth in Planning Commission
Resolution 5244, Exhibit EIR-B, dated August 21, 2002.
6.7 O�en Skce Preserve Grant of Easements. The Open Space Preserve Lots
are required to be improved, used and maintained for certain conservation and open space
purposes, pursuant to the Specific Plan and other Project Approvals. Fee title to the Open Space
Preserve Lots will be conveyed by Declarant to the Center for Natural Lands Management, Inc.,
a California nonprofit corporation ("CNLM"), subject to the Carlsbad Oaks North Business Park
Preserve, Grant of Easements for Open Space Preserve Lots ("Open Space Preserve Grant of
Easements") which will be recorded subsequent to the recordation of these CC&Rs. The Open
Space Preserve Grant of Easements sets forth the respective rights and obligations of Declarant,
the Association and CNLM relating to the improvement, use, management and maintenance of
the Open Space Preserve Lots. The Open Space Preserve Grant of Easements provides certain
easement rights, for the benefit of Declarant and/or the Association, relating to access, use,
improvement and/or maintenance of the Common Areas (and Improvements thereon) and other
facilities located within the Open Space Preserve Lots. The Open Space Preserve Grant of
Easements also provides for the improvement, use, management and maintenance of the Open
Space Preserve Lots. The rights and obligations of the Association set forth in the Grant of
Easements For Open Space Lots are incorporated into this Declaration by this reference.
Additionally, the Association shall at all times be bound by and shall comply with the Project
Approvals and the rules and regulations of the CNLM when exercising its rights and obligations
with regard to the Open Space Preserve Lots.
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ARTICLE 7
EASEMENTS
7.1
following easements:
Easements Over Common Areas. The Common Areas are subject to the
(a) There is hereby reserved to Declarant an easement over the
Common Areas for the purpose of grading and installation of utilities, landscaping,
irrigation and drainage facilities, and other facilities and Improvements, as necessary or
appropriate to complete the improvement of such Common Areas pursuant to the
conditions of approval of the Final Map and other applicable governmental regulations
and requirements.
(b) There is hereby reserved, for the benefit of Declarant and the
Association, and their employees, agents and contractors, an easement over all Common
Areas for the purpose of ingress, egress, operation, maintenance, repair, restoration,
reconstruction and landscaping, and as necessary to exercise the rights and to perform the
duties set forth in this Declaration.
(c) There is hereby reserved over those Common Areas outside the
public rights-of-way, for the benefit of Declazant, the Association and all Owners: (i) an
easement for pedestrian ingress and egress over those Common Areas which are
improved from time to time for pedestrian ingress and egress; and (ii) an easement
adjacent to the main entry to the Business Pazk for monument signs, landscaping, walls
and other Improvements identifying the entry.
(d) There is hereby reserved over the Common Areas, for the benefil
of Declarant and each Owner, an easement to the extent necessary as a result of and for
purposes of complying with any brush management requirements related to the
Improvements located on such Owner's Lot.
The Open Space Preserve Grant of Easements provides for certain easements over the Open
Space Preserve Lots for access, improvement, use and maintenance of the Common Areas
located thereon, for the benefit of Declazant and/or the Association. The Common Areas,
including all areas subject to the easements granted herein, shall be maintained as further
described in Article 6. All easements granted herein to Owners shall be appurtenant to and shall
pass with title to each such Owner's Lot and may be used by the Owners, Lessees and Occupants
of each such Owner's Lot, and their respective guests, subject to the Rules and Regulations and
the other restrictions set forth in Article 6.
7.2 Reservation of Easement Over Lots and Common Area. There is hereby
reserved, for the benefit of the City and its employees, agents and contractors, an easement over —
the stormwater pollutioa prevention basins located on the Common Areas and the Lots for the
purpose of inspection for compliance with the approved SWPPPs for the Property.
7.3 Entr�on Common Areas. The Association shall maintain the insurance
described in Section 22.4(b) in connection with any entry on Common Areas in the performance
of any rights or obligations of the Association. The Association shall maintain the insurance
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required under the Open Space Preserve Grant of Easements in connection with'maintenance of
the Common Areas located within the Open Space Preserve Lots. In connection with any entry
by an Owner (including Declarant) onto any Common Areas for purposes of performing any
work in connection with the easements granted to such Owner pursuant to Section 7.1, or
otherwise permitted under this Declaration, such Owner shall, at its expense:
(a) Maintain at all times during such period of entry commercial
general liability insurance, with a combined single limit per occurrence of at least
$2,000,000, naming the Association (and the fee owner of such Common Areas if other
than the Association) as additional insureds, and providing that such coverage shall not
be terminated or modified without at least thirty (30) days' prior written notice to the
Board;
(b) Deliver to the Board a certificate evidencing that such insurance is
in full force and effect prior to entry onto such Common Areas;
(c) Perform all work in a safe manner, insure that no hazazdous
condition remains on such Common Areas, and repair any damage thereto;
(d) Keep such Common Areas free and cleaz of all mechanics' or
materialmen's liens arising out of such Owner's activities;
(e) Comply with all applicable Laws in connection with such work;
and
(� Indemnify, protect, hold harmless and defend the Declarant, the
Association, the Board and the fee owner of such Common Areas from and against all
liabilities, losses, liens, claims, damages, costs and expenses (including attorneys' fees
and court costs) for labor or services performed or materials furnished to or for such
Owner, or for bodily injury or property damage, arising out of such Owner's entry or
breach of the provisions of this Section 7.3.
7.4 Utility Easement. Declarant hereby grants to the Association, together
with the right to grant and transfer the same to the City and/or any public or private utility,
assessment district or municipal finance district, and to the successors aad assigns of the
Association, non-exclusive easements over, across and under the Property for purposes of
constructing, installing, removing, repairing, replacing and maintaining any water, electric,
telephone, private or public communications, cable television, gas, sanitary sewer, storm water
retention and drainage facilities as may now or hereafter be needed to service all or any portion
of the Property; provided, however, such easements shall, to the extent practicable, be limited to
the perimeter azeas of Lots and shall not unreasonably interfere with the use and enjoyment by
the Owners of their Lots and any Improvements located thereon. If the Association damages the
surf'ace of any Lot in connection with the repair, maintenance, removal or replacement of such
utilities, including any Improvements located thereon, the Association shall restore the damaged
property substantially to the same condition that e3cisted immediately prior to such damage, and
any costs incurred by or at the direction of the Association shall be allocated on an equitable
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basis as reasonably determined by the Board among the Owners whose Lots are benefited by
such utilities as a Special Assessment.
7.5 Reservation of Easement Over Lots. There is hereby reserved, for the
benefit of Declarant, the Association, and their employees, agents and contractors, a
nonexclusive easement for ingress, egress, construction, maintenance and repair purposes over
each Lot, and any Building, facility or other Improvements located on such Lot, as may be
reasonably necessary to inspect the Buildings or other structures or Improvements to insure
compliance with the Architectural and Landscape Standards and to enjoy its rights as herein
created and to discharge its obligations as described in this Declaration.
7.6 Drainac�e Easement. There is hereby reserved, for the benefit of Declarant
and successor Owners, non-exclusive easements for surface drainage over the Property through
the drainage patterns and systems as are established from time to time upon the Property.
Nothing herein shall prevent an Owner of a Lot from relocating the drainage patterns established
upon such Owner's Lot provided such relocation does not unreasonably interfere with the
drainage of other Lots within the Property nor interfere with the orderly discharge of water by
means of same.
7.7 Emer�ency Vehicle Access. There is hereby reserved, for the benefit of
Declarant, the Association and all Owners, a non-exclusive easement for public emergency
vehicles and personnel acting in a public emergency over all portions of each Owner's Lot
designed for vehicular or pedestrian traffic. '
7.8 Sienaee Easements. There is hereby reserved, for the benefit of Declarant
and the Association, an exclusive easement for such signs as Declarant and/or the Association
reasonably determine are necessary to identify the Property, direct tr�c or provide information
as to facilities of the Business Park, all in a location and of a size and type determined by
Declarant or the Association; provided, however, to the extent practicable, such easements and
signs shall not unreasonably interfere with the use and enjoyment by the Owners of their Lots
and any Improvements located thereon.
7.9 Dominant and Servient Estates. Each appurtenant easement reserved
pursuant to the provisions hereof is expressly for the benefit of each Lot and the Lot so benefited
shall be the dominant estate and the Lot upon which each such appurtenant easement is located
shall be the servient estate; and each such easement shall run with the land and shall inure to the
benefit of and be binding upon the successors and assigns of Declarant.
ARTTCLE 8
FUNDS AND ASSESSAIENT5
8. I Geation of the Lien and Personal Obiieation of Assessments. Declarant,
for each Lot owned by it within the Property, covenants and agrees to pay, and each Owner by
acceptance of a deed or other conveyance therefor, whether or not it shall be so expressed in any
such deed or other conveyance, is deemed to covenant and agree to pay to the Association, for
each Lot owned, any and all Assessments levied against such Owner's Lot. Such Assessments
are to be fixed, established and collected from time to time as provided in this Declaration. Any
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and all Assessments, together with interest, costs and attomeys' fees as provided in this
Declaration, shall be: (a) a continuing lien upon the Lot against which each such Assessment is
made, which lien shall be effective upon Recordation of a notice pursuant to Section 103; and
also (b) the personal obligation of the Owner of such Lot at the time when the Assessment falls
due. The personal obligation for any delinquent Assessments shall not pass to successors in title
of an Owner unless expressly assumed by such successors, but any lien created hereunder shall
remain a charge against the Lot except as to bona fide purchasers or encumbrancers for value
without notice as described in Section 13.10. If more than one person or entity is the Owner, the
personal obligation to pay Assessments respecting such Owner's Lot shall be both joint and
several.
8.2 No Exem ta ions. No Owner may exempt itself from payment of
Assessments duly levied pursuant to this Declaration, or release the Lot owned by such Owner
from the liens and charges thereof, by waiver of the use or enjoyment of, or abandonment of,
such Lot or otherwise.
8.3 Purpose of Assessmenfs. The Assessments levied by the Association shall
be used for: (a) administering and enforcing this Declaration; (b) collecting and disbursing funds
pursuant to this Declaration; (c) the improvement, repair, maintenance and reconstruction of the
Common Areas and the Improvements and facilities located thereon; (d) to reimburse the
Association for the wsts incurred in bringing an Owner into compliance with the Project
Documents; (e) to pay any other Common Expenses as defined in this Declaration; and/or (� the
furtherance of any other duty or power of the Association.
8.4 Reeular Assessments.
8.4.1 Establishment. A"Regular Assessment" means the amount which
is to be paid by each Owner to the Association for Common Expenses. At least thirty (30) days
prior to the date for commencement of Regular Assessments pursuant to Section 8.4.5, and at
least thirty (30) days prior to each calendar year thereafter, the Boazd shall prepaze or cause to be
prepared and distribute to all Members of the Association a pro forma operating budget
("Budget") for such first or successive calendaz year setting forth the estimated revenue and
ezpenses on an accrual basis. The Association shall deliver, together with the Budget: (a) notice
of the Members' right to obtain copies of minutes of Board meetings, to the extent required under
California Civil Code Section 1363.05; and (b) any other information required to be delivered
with the Budget pursuant to applicable provisions of the Davis-Stiding Common Interest
Development Act. The Regular Assessments may include reasonable amounts as determined by
the Board to be required as reserves for the future repair, improvement or replacement of
Improvements located within the Common Areas or for any other purposes determined by the
Board in its good faith discretion.
8.4.2 Failure to Fix. The failure of the Boazd to timely fix the Regular
Assessments under this Declaration shall not constitute a waiver by the Board of its rights under
this Dedaration to fix the Regular Assessments or a release of any Owner from the obligation to
pay Assessments required by this Declaration, and the Regular Assessments for the prior
calendar year shall be deemed the Regular Assessments for the new calendar year until such time
as the Regular Assessments for such new calendaz year are established.
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8.4.3 Revised Regular Assessment. If the Board determines, in its sole
and absolute, yet good faith discretion that the estimated Budget for the applicable calendar year
is, or will become, insufficient to meet all Common Expenses , or that such Budget
over-estimates Common Expenses, it may determine the approximate amount of such variance,
issue a supplemental estimated Budget, and determine the revised amount of the Regular
Assessments for each Owner and the date or dates payment on which such revised Regular
Assessments are due. If, at the end of the calendar year, the Assessments collected exceed the
Common Expenses, the Board may either return excess Assessments to the Owners on the same
basis as such Assessments are paid or apply such excess towards the Assessments next becoming
due until all such excess Assessments have been used for the payment of Common Expenses.
8.4.4 Allocation. An Owner's share of the Regular Assessments shall be
calculated by a fraction, the numerator of which shall be the Net Acreage of such Owner's Lot, as
adjusted pursuant to Section 33, and the denominator of which shall be the aggregate Net
Acreage of all Lots included in the Property, as adjusted from time to time as a result of
annexation pursuant to Article 12.
8.4.5 Commencement of Regular Assessments. Regular Assessments
shall commence, as to all Lots within the Property initially subject to this Declaration, on the first
(lst) day of the month following the conveyance of the first Lot by Declarant to an Owner other
than Declarant; provided, however, that Declarant may, at its option, delay the start of Regular
Assessments so long as Declarant performs all maintenance and other obligations of the
Association at its sole cost and expense. Regular Assessments for any Annexed Property shall
commence as provided in Section 1222. The first Regular Assessments, for the Property or any
Annexed Property, shall be adjusted according to the number of months remaining in the
calendar year and shall be prorated for any partial month.
8.5 �ecia) Assessments.
8.5.1 Tvoes. A"Special Assessment" shall include the following: (a) an
Assessment against a particular Owner and such Owner's Lot, directly attributable to the Owner,
to reimburse the Board and Association (i) for costs incurred in bringing the Owner and such
Owner's Lot into compliance with the provisions of this Declaration, or (ii) to defray the costs of
any extraordinary maintenance or repair to the Common Areas attributable to the excessive use
of such Common Areas by the Owner or the Occupant of such Owner's Lot, including attorneys'
fees, interest and other charges payable by such Owner pursuant to the provisions of this
Declaration; or (iii) for costs incuned by Declarant or the Board in allocating Net Acreage after.
(a) resubdivision pursuant to Section 3.3; and (b) an Assessment against each Owner and such
Owner's Lot, representing a portion of the cost for the reconstruction of any capital
improvements located within the Common Areas.
8.52 Establishment. At least thirty (30) days prior to commencement of
any Special Assessment, the Board shall deliver to each Owner written notice of the amount of
the Special Assessment and the due date(s).
8.5.3 Aliocation. The amount of any Special Assessment established
pursuant to Section 8.5.1 shall be determined and allocated by the Board in its sole and absolute
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yet good-faith discretion. Any Special Assessment pursuant to Section 8.5.1(b) shall be
allocated among all Owners, with each Owner shaze determined by a proration, the numerator of
which shall be the Net Average of such Owner's Lot and the denominator of which shall be the
Net Acreage of all Lots.
8.6 Certificate of Payment. The Board shall, upon written demand, furnish to
any Owner liable for any Assessment, a certificate ("Certificate of PaymenY'), setting forth
whether the Regular Assessments and Special Assessments on that Owner's Lot have been paid,
and the amount of any delinquency. A reasonable charge may be required by the Board for
issuance of a Certificate of Payment. The Certificate of Payment shall be conclusive evidence
that any Assessment specified as having been paid has, in fact, been paid.
8.7 Due Dates: No Offsets. Regular Assessments shall be due and payable in
equal monthly installments on the first business day of each month unless the Board adopts some
other method for payment. Special Assessments shall be due and payable in such installments
and on or before such due date(s) as the Board, in its sole discretion, shall designate in the
Assessment notice. All Assessments shall be payable in the amount specified by the particulaz
Assessment, and no effect or deduction against such amount shall be permitted for any reason,
including, but not limited to, any claim that the Association is not properly exercising its duties
on maintenance, operation or enforcement.
8.8 Delinquent Assessments: Liens. Assessments, including Assessments
payable in installments, shall become delinquent if payment is not received by the Association
within fifreen (] 5) days after the applicable due date. If any Assessment is not paid within thirty
(30) days after the due date, the Association shall have the right to collect a late charge of Ten
Dollars ($10.00) or ten percent (10%) of the delinquent amount, whichever is greater. A late
charge may not be imposed more than once on any delinquent payment and shall not eliminate or
supersede any charges imposed on prior delinquent payments. In addition, interest shall accrue
on the delinquent amount as provided in Section 10.4. Any and all Assessments, together with
interest thereon, late charges, reasonable attomeys' fees and court costs, and the other costs of
collection, as provided in this Dedaration, shall be a continuing lien upon the Lot against which
such Assessment is made and may be enforoed as permitted in Article 10.
8.9 Deposit of Funds. The Assessments collected by the Association shall be
properly deposited into two (2) sepazate accounts with a federally-insured bank or other
institution whose deposits are insured by the federal government, as selected by the Board, which
accounts shall be clearly designated as the Maintenance and Operation Account and the Reserve
Account, respectively. Funds collected by the Association shall be deposited into the appro�riate
accounts and said accounts shall be separately maintained by the Association. In the event the
Board retains a professional management agent, the Board may, to the extent permitted by law,
delegate the authority to deposit or withdraw funds to responsible representatives of the
professional management agent so retained. Said professional management agent may
additionally be authorized to establish a common trustee account for deposit of the Assessments
as collected.
8.10 Transfer of Lot. Upon the sale or transfer of any Lot by any Owner, the
Owner's interest in the accounts referred to in Section 8.9 shall be deemed automatically
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transferred to the successor Owner of such Lot. After the transfer of any Lot within the Property,
the uansferring Owner shall not be liable for any Assessments levied on such Lot after the date
such transfer of ownership is Recorded and written notice of such transfer is delivered to the
Board. The transferring Owner shall remain personally liable for all Assessments and charges
levied on such Lot prior to any such transfer, unless such Assessments and charges are expressly
assumed by the successor Owner and written evidence of such assignment is delivered to the
Association.
ARTICLE 9
OWNER'S INSURANCE
9. ] Rieht and Duty of Owners to Insure. Each Owner shall maintain or cause
to be maintained: (a) all risk property insurance for the Building(s) on such Owner's Lot; and
(b) commercial general liability insurance for damage to persons or property occurring upon
such Owner's Lot arising out of the use of such Owner's Lot, in an amount not less than One
Million Dollars ($1,OOQ000), in the aggregate. The Board may modify or supplement the
foregoing by establishing reasonable standards for the types of insurance coverage_and liability
limits applicable to all Owners, from time to time.
9.2 Notice of Expiration. Each policy of insurance required to be maintained
or caused to be maintained by the Owners shall contain a provision that it shall not be canceled
or terminated without ttilrty (30) days prior written notice to the Association.
9.3 Destruction of Owner's Buildine or Other St�uctures. If any Building or
other structure located on an Owner's Lot is destroyed by any casualty, the Owner of such Lot
shall elect within ninety (90) days after the casualty, either: (a) to proceed, with commercially
reasonable effort and diligence, to restore such Building or other structure at such Owner's sole
cost, to its original condition, or such modified Improvements as the Owner may propose,
subject to approval of the Architectural Committee pursuant to Article 4; or (b) not to restore, in
which event the Owner shall promptly raze such damaged or destroyed Building or other
structure and shall promptly grade, pave, and/or landscape the area on which such Building or
other structure was located in a safe and sightly condition.
ARTICLE 10
ENFORCE111ENT
10.1 Violation a Nuisance. The result of every act or omission whereby any
provision of this Declaration is violated in whole or in part is hereby declazed to be a nuisance,
and every remedy allowed by law or equity against an Owner, Lessee or Occupant for nuisance,
either public or private, shall be available to and may be exercised by Declarant, the Association,
or any Owner.
10.2 General Remedies.
] 0.2.1 Rieht to Enforce. The Declarant or the Association shall have the
right to enforce, by all appropriate legal and equitable proceedings, all conditions, covenants,
restrictions, reservations, liens, and charges now or hereafter imposed by the provisions of this
Declaration. It is hereby agreed that money damages are an inadequate remedy for breach of any
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of the conditions, covenants and restrictions contained herein, other than a default in the payment
of any Assessment when due. Every Owner, Lessee and Occupant of a Lot subj ect to these
restrictions expressly waives the benefit of Califomia Code of Civil Procedure Section 731a and
any other comparable statute or rule, and agrees that such violation or breach may be enjoined
whether or not monetary damages may be provided or provable. Prior to commencing litigation,
the applicable requirements of the Davis-Stirling Common Interest Development Act relating to
alternative dispute resolution shall be satisfied.
102.2 Inspection; Abatement bv Declarant. Association. During
reasonable hours, Declazant or the Association, or their duly authorized agents, shall have the
right to enter upon and inspect any Lot and the Improvements located thereon for the purpose of
ascertaining whether or not the provisions of this Declaration have been or aze being complied
with, and shall not be deemed guilty of trespass by reason of such entry. Declarant shall give at
least twenty-four (24) hours prior notice of such entry (except in the case of an emergency, when
no advance notice shall be required), unless the party in possession consents at the time of entry.
Declarant and/or the Association or their duly authorized agents shall have the right, upon
violation or breach of any restriction set forth herein which affects the Common Areas, if such
violation or breach continues for a period of thirty (30) days after written notice thereof, to enter
upon such Common Areas, and summarily to take such action as may be necessary to correct
such violation or breach, at the expense of the Owner, Lessee or Occupant causing the violation
or breach. Declarant and/or the Association, or their duly authorized agents, shall have the
additional right, at any time and from time to time following violation or breach of this
Declaration, to prosecute a proceeding at law or in equity against the Person or Persons who
have violated or are attempting to violate any of the provisions of this Declaration, to enjoin or
prevent them from doing so, to cause said violation to be remedied, and to recover damages for
said violation.
102.3 Owner's Remedies. After written request to the Association to
prevent any violation of this Declaration, and failure to act by Declarant or the Association
within fifteen (15) days after receipt of such request, any Owner shall additionally have all
enforcement rights provided for in this Declaration. In addition, any other party to whose benefit
this Declaration inures shall have the right, in the event of violation or breach of this Declaration,
to prosecute a proceeding at law or in equity against the Person or Persons who have violated or
are attempting to violate this Dectaration, to enjoin or prevent them from doing so, to cause said
violation to be remedied and to recover damages for said violation.
10.3 Collection of Assessments: Liens.
103.1 Right to Enforce. The right to collect and enforce Assessments is
vested in the Boazd acting for and on behalf of the Association. The Board or its authorized
representative, can enforce the obligations of the Owners to pay Assessments provided for in this
Declaration by commencement and maintenance of a suit at law or in equity, or the Board may
perfect a lien as described in Section 10.3.2 and foreclose such lien by judicial proceedings or
through the exercise of the power of sale as described in Section 103.3. Suit to recover a money
judgment for unpaid Assessments may be maintained without foreclosing or waiving the lien
rights.
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10.32 Creation of Lien. If there is a failure to pay any Assessment within
thirty (30) days after the due date, the delinquent amounts, together with late charges, interest,
costs and attorneys' fees incurred by the Board or its authorized representatives in the collection
of said delinquent amounts, shall be a lien against such Lot upon the Recordation of a notice of
delinquent assessment as provided in California Civil Code Section 1367. The notice of
delinquent assessment shall not be Recorded unless: (a) the Board or its authorized
representative has delivered to the delinquent Owner(s), at least fifteen (15) days prior to
Recordation of the notice, a written notice of default and demand for payment; and (b) the
delinquency has not been cured within said 15-day period.
10.3.3 Notice of Default Foreclosure. After at least fifteen (15) days
after Recordation of the notice of delinquent assessment, the Board or its authorized
representative may Record a notice of default and can cause the Lot, with respect to which a
notice of default has been Recorded, to be sold in the same manner as a sale is conducted under
California Civil Code Sections 2924, 29246 and 2924c applicable to the exercise of powers of
sale in deeds of trust, or through judicial foreclosure, or in any other manner permitted by law.
However, as a condition precedent to the holding of any such sale under Section 2924c,
appropriate publication shall be made. In connection with any sale under Section 2924c, the
Board is authorized to appoint its attomey, any officer or director, or any tiUe insurance company
authorized to do business in California as trustee for purposes of conducting the sale. If a
delinquency is cured before sale, or before completing a judicial foreclosure, the Boazd or its
authorized representative shall cause to be Recorded a certificate setting forth the satisfaction of
such claim and release of such lien upon payment of actual expenses incurred, including
reasonable attorneys' fees by the delinquent Owner. The Association, acting on behalf of the
Owners; shall 6ave the power to bid upon the Lot at the foreclosure sale and to acquire, hold,
lease, Mortgage and convey the Lot.
103.4 Subordination of the Lien to First Morteaees. The lien of any
Assessment shall be subordinate and subject only to the lien of any First Mortgage now or
hereafter placed upon any Lot subject to assessment which has been made in good faith aad for
value and Recorded prior to the Recordation of any such assessed lien, and the sale or transfer of
any Lot pursuant to judicial or non judicial foreclosure of such a prior First Mortgage shall
extinguish the lien of such Assessments as to payments which became due prior to such sale or
transfer. No sale or transfer shall relieve such Lot from lien rights for any Assessments
thereafter becoming due nor from the lien of any subsequent Assessment. Where the First
Mortgagee or other purchaser of a Lot obtains tide to the same as a result of foreclosure, such
purchaser and his successors or assigns shall not be liable for Assessments chazgeable to such
Lot which became due prior to the acquisition of title to such Lot by such purchaser.
]0.4 Interest. All Assessments and other monetary amounts which are not paid
when due hereunder shall bear interest at the rate of twelve percent (12%) per annum,
commencing thirty (30) days after the assessment or other monetary amount becomes due until
paid in full.
] 0.5 Attorneys' Fees. In the event any legal or equitable proceeding is
commenced to enforce or to restrain the violation oF this Declaration or any restrictions or
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provision hereof, the losing party shall pay the attorneys' fees and court costs of the prevailing
party in such amount as may be fixed by the azbitrator or the court in such proceedings.
10.6 Cumulative Remedies: No Waiver. The remedies herein provided to
enforce this Declaration shall be cumulative, and no such remedy is exclusive. No delay or
failure by Declarant, the Board, Association or any Owner to exercise any such remedy shall,
under any circumstance, constitute a waiver of the right to enforce such covenant thereafter.
10.7 Effect of Foreclosure. If any Lot subject to a lien created by any provision
hereof shall also be subject to the lien of a bona fide Mongage: (a) the foreclosure of any lien
created hereunder shall not operate to affect or impair the lien of such Mortgage; and (b) the
foreclosure of the lien of such Mortgage, the acceptance of a deed in lieu of foreclosure of such
Mortgage or a sale under a power of sale included in such Mortgage (such events being
hereinafter referred to as "Events of Foreclosure") shall not operate to affect or impair the lien
hereof, except that any person (including the Mortgagee) who obtains an interest through any of
the Events of Foreclosure, and his successors in interest, shall take title free of the lien and
personal obligation for such charges as shall have accrued up to the time of the applicable Event
of Foreclosure; provided however, the Lot(s) affected by the Event of Foreclosure subject to the
lien hereof and the person taking tiUe to the Lot(s) shall be personally liable for all charges
hereunder that shall accrue during such Person's ownership of any Lot wmmencing with the
applicable Event of Foredosure. Nothing in this Section shall be construed to release any Owner
from his personal obligation to pay any Assessment levied pursuant to this Declaration.
ARTICLE 11
TERA1; An7ENDMENT5
I I.1 Tenn. The covenants, conditions and restrictions of this Declaration shall
run with and bind the Property and shall inure to the benefit of the individual Owner of the
Property and shall be enforceable for a term commencing on the date hereof and continuing for
thirty (30) years thereafter; provided, however, the term of this Declaration shall automatically
and without further notice continue in full force and effect for successive terms of ten (10) years
each unless, within one (I) year prior to the expiration of such thirty (30}year term or any such
ten (10)-year extension, there shall be Recorded an instrument conforming to the provisions of
Section 11.2 below, and consented to in writing by the City, terminating this Declaration.
l I.2 Amendments. Prior to first sale of a Lot to an Owc�er other than
Declarant, Declarant shall have the right to amend this Declaration by Recordation of an
amendment executed by Declazant, subject to the rights of the City pursuant to Section 6.6.
After such first sale, this Declaration may be amended , subject to the rights of the City pursuant
to Section 6.6, by Recordation of an amendment approved by the affirmative vote (in person or
by proxy) or written consent of: .(a) the Owners (including Declarant) of more than fifty percent
(50%) of the Net Acreage of all Lots within the Property; (b) Declarant, until such time as all of
the Annexation Property has been annexed to this Declaration pursuant to Article 12; and (c) a
majority vote of the First Mortgagees of more than fifty percent (50%) of the Net Acreage of all
Lots within the Property; provided, however, that solely for purposes of this Section 112, the
term "First Mortgagees" shall be deemed to include only those First Mortgagees who have
delivered a written notice to the Association via certified mail stating that such Mortgagee is the
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holder of a First Mortgage a Mortgage that has priority over any other Mortgage encumbering
the Lot. Any First Mortgagee who receives a written request to consent to additions or
amendments to this Declaration which require consent under this Section 11.2 and who does not
deliver a negative response to the Association within thirty (30) days after such receipt shall be
deemed to have consented to such request. An amendment shall be effective after written
certification of the approval by the requisite percentage of Owners and First Mortgagees has
been executed and acknowledged by a duly authorized officer of the Association, and Recorded.
If any Mortgagees have filed a written request with the Association to receive a copy of such
amendments, the Association shall deliver a copy of such amendments to such Mortgagees at the
address specified in their request. Notwithstanding anything to the contrary set forth above, no
amendment to or modification of this Declaration which materially affects the public interest
shall be effective unless consented to in writing by the Ciry prior to Recordation of the
amendment.
ARTICLE 12
ANNEXATION OF ADDITIONAL PROPERTY
12.1 Right to Annex. The real property described in E�chibit A is hereby made
subject to this Declaration and constitutes.the initial Property. Declarant shall have the right, but
shall not be obligated, to annex to this Declaration and the Property ali or any portion of the
Annexation Property. Such annexation of additional property shall be effective, without the
approval, consent or vote of the Owners, or the Association, upon the Recordation of a
Declaration of Annexation, in accordance with Section 12.3. The Property constitutes the first
phase of development of the Business Park pursuant to the Specific Plan. The Specific Plan
requires the annexation of subsequent phases of the Business Park as such phases are developed.
Declarant intends to annex each subsequent phase prior to or concurrently with Recordation of a
Final Map (based on the Tentative Map) for such phase.
12.2 Effect of Annexation. Upon Recordation of a Declaration of Annexatioq
the Annexed Property described therein will be subject to the provisions of this Declaration and
to the jurisdiction of the Board in the same manner as if it were part of the Property described in
Exhibit A which is initially subject hereto, except as specifically modified or amended in
accordance with Section 12.2.3.
12.2.1 �hts of Owners. The rights, powers and responsibilities of
Declazant and Owners, Lessees and Occupa�ts of Lots within the Annexed Property shall be the
same as in the case of the Property initially subject hereto, except as specifically modified or
amended in accordance with Section 12.23. All Owners of Property subject to this Declaration
shall have the non-exclusive easements granted to all Owners over designated Common Areas
pursuant to Section 7.1, including designated Common Areas described in the Declaration of
Annexation.
12.22 Assessments. After each annexation, the Annexed Property shall
be subject to Assessments on the same basis as other Property subject to this Declaration. The
Net Acreage of each Lot included in the Annexed Property shall be determined by Declarant and
its engineer and set forth in the Declaration of Annexation, which determination shall be
conclusive except in the case of a resubdivision as described in Section 3.3. Regular
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Assessments with respect to each Annexed Property shall commence on the first (lst) day of the
calendar month following recordation of a Declaration of Annexation applicable to such
Mnexed Property; provided, however, that Declarant may, at its option, delay the start of
Regular Assessments so long as Declarant maintains all Common Areas added by such
Declaration of Annexation.
12.2.3 Suunlemental Restrictions. A Declaration of Annexation may
specify such modifications of and complementary additions to the covenants, conditions and
resfictions contained in this Declaration, as Declazant, in its discretion, shall specify as affecting
the Annexed Property to reflect the different use, development or character, if any, of the
Annexed Property described therein; provided, however, that no Declaration of Annexation shall
undermine the general plan of this Declaration.
12.3 Declarations of Annexation. Any annexation pursuant to this Article 12
shall be effective upon the Recordation of a written instrument executed and acknowiedged by
Declarant ("Declaration of Annexation"). The Declaration of Annexation shall extend the plan
of this Declaration to the Annexed Property and shall include:
(a) A legal description of the Annexed Property;
(b) A reference to this Declaration stating the date ofRecordation and
the page/file number of the Official Records of San Diego County, California where this
Declaration is recorded;
(c) A statement that the Annexed Property is annexed pursuant to and
subject to the provision of this Declaration;
(d) Such additions or modifications to the covenants, conditions and
restrictions contained in this Declaration as Declarant shall specify as applicable to the
Annexed Property, pursuant to Section 12.2.3;
(e) A designation of all Common Areas within or associated with the
Annexed Property;
(� An exhibit identifying the Net Acreage of each Lot included in the
Annexed Property; and
(g) Any Final Map which applies to the Annexed Property.
ARTICLE 13
GENERAL PROViSiONS
13.1 Assienment of Declarant's Riehts and Duties. The rights; powers and
reservations of Declarant set forth herein may be assigned, in whole or in part, to any Person,
provided such assignee agrees in writing to accept such assignment and to assume the duties of
Declarant pertaining thereto. An assignee may succeed to all of the rights, powers and
reservations of Declarant, as a successor Declarant, provided: (a) such assignee holds or
acquires record title to all or any portion of the Property; and (b) Declarant (or a successor
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Declarant) and such assignee execute and Record a document which expressly names such party
as successor Declazant and includes an assignment of the rights and an assumption by the
Assignee of the duties of Declarant hereunder. Notwithstanding any provision of this
Declaration to the contrary, Declarant may, at any time, relieve itself of its rights and obligations
under this Declaration by Recording a notice stating that Declazant has surrendered said rights
and obligations; and, upon Recordation of such notice, even if it is not specified therein, said
powers and obligations shall immediately vest in the Association. If at any time Declarant ceases
to exist and has not made such an assignment, the rights and obligations of Declarant shall
automatically vest in the Association.
13.2 Common Interest Subdivision. It is intended that the Davis-Stirling
Common Interest Development Act apply to this Declaration and the Business Park to the extent
required by law. To the extent Califomia Civil Code Section 1351 et sea. is applicable, the
Business Park shall be a planned development type of common interest subdivision.
13.3 Constructive Notice and Acceptance. Each Owner, Lessee and Occupant,
and every other person who now or hereafter owns or acquires any right, title, estate or interest in
or to any portion of the Property, by acceptance of a deed, lease or other interest therein, shall be
conclusively deemed to have consented and agreed to hold such title, leasehold or interest
subject to and to comply with every covenant, condition and restriction contained herein and to
the rights of Declarant hereunder, whether or not any reference to this Declaration is contained in
the deed, lease or other instrument by which such person acquired said interest in the Property.
Every provision of this Declaration, regardless of its characterization herein, shall be deemed a
covenant, condition, restriction, reservation, easement or servitude, as the circumstances may
require to permit the enforcement thereof and to carry out the intent of this Declaration.
13.4 Counterparts. This Declaration may be executed in any number of
counterparts, each of which shall be deemed an original, but all such counterparts together shall
constitute one agreement.
13.5 Declarant's Reserved Rights. Wherever it appears in this Declaration that
the Declarant has the right to waive compliance with certain provisions, the right to approve or
deny certain matters or the right to exercise its discretion in various azeas, these rights of the
Declarant are expressly reserved or retained by the Declarant, and all of the provisions of this
Dedaration aze subject to such retained and reserved rights. Nothing in this Declaration shall
limit the right of Declarant to alter the Lots owned by Declarant, or to construct such additional
Improvements as Decfazant deems necessary or advisable. Such right shall include but shall not
be limited to erecting, constructing and main[aining on the Property such structures and displays
as may be reasonably necessary for the conduct of the business of completing all Improvements
required by the Specific Plan and the Ciry, and all Lots owned by Declarant and disposing of the
same by sale, lease or othenvise. This Declaration shall not limit the right of Declarant at any
time to establish on the Property additional licenses, reservations and rights-of-way to itself, to
utility companies, or to others as may from time to time be reasonably necessary for the proper
development and disposal of the Property, provided that no such additional licenses, reservations
or rights-of-way shall unreasonably interfere with the use and enjoyment of any Owner's Lot.
Declarant reserves the right to alter its construction plans and designs as it deems appropriate in
its discretion.
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13.6 Dedications. The provisions of this Agreement shall not be deemed to
constitute a dedication for public use nor create any rights to the general public.
13.7 Eshibits. All exhibits referred to herein are attached hereto and
incorporated by reference.
13.8 Governing Law. This Declaration shall be governed, construed and
enforced in accordance with the laws of the State of California.
13.9 Headines. The captions and paragraph headings used in this Declaration
are inserted for convenience of reference only and are not intended to define, limit or affect the
interpretation or construction of any provision hereof.
13.10 �4orteaee Protection. No breach of this Decluation shall defeat or render
invalid the lien of any Mortgage now or hereafter executed upon any part of the Business Park
except as provided in Section 10.3 above. However, if any portion of the Property is sold under
a foreclosure of any Mortgage or is conveyed in lieu of foreclosure, any purchaser at such sale,
and his successors and assigns, shall hold any and all property so acquired subject to all of the
restrictions and other provisions of this Declaration. Such a purchaser shall not be obligated to
cure any preexisting breach of this Declaration which is non-curable by payment of money or of
a type which is not ptactical or feasible to cure. Any loan to facilitate the resale of any portion of
the Property after a foreclosure sale or deed in lieu of foreclosure is a loan made in good faith
and for value. If a Mortgagee delivers written notice of its Mortgage to the Board together with
a request for notices of default with respect to the Lot or Lots encumbered by the Mortgage, the
Association shall deliver copies of all such notices of default concurrently with delivery to the
Owner or Owners, and such Mortgagee shall be permitted to cure any default of the Owner of
any Lot or Lots encumbered by the Mortgagee within the time period for cure provided to the
Owner under the terms of this Declaration.
13. I 1 Mutuality, Reciprocitv: Runs With Land. All covenants, conditions,
restrictions, reservations, easements and servitudes contained herein are made for the direct,
mutual and reciprocal benefit of each and every portion of the Property; shall create mutual,
equitable servitudes upon each Lot in favor of every other Lot; shall create reciprocal rights and
obligations between the respective Owners of any portion of the Property, their heirs, successors,
and assigns; and shall, as to the Owner of each Lot, his heirs, successors and assigns, operate as
covenants running with the land, for the benefit of all other Lots.
13.12 Notices.
(a) Notice to the Association, the Board or Architectural Committee
shall be deemed to have been properly delivered when delivered personally or sent by
certified mail, postage prepaid, return receipt requested to the appropriate person at the
following address:
Association: Techbilt Construction Corp.
3575 Kenyon Street, Suite 200
San Diego, California 92ll0
Attention: Mr. Ted Tchang
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Architectural Techbilt Construction Corp.
Committee: 3575 Kenyon Street , S�te,zo0
(if formed) San Diego, California 92110
Attention: Mr. Ted Tchang
or as changed by notice proper(y delivered in accordance with this Section.
(b) Notice to an Owner or a Mortgagee shall be deemed to have been
properly delivered when delivered personally or placed in the first class United States
mail, postage prepaid to the most recent address furnished by such Owner or Mortgagee
in writing to the Association for the purpose of giving notice, or if no such address shall
have been furnished, then to the street address of such Owner's Lot. Any notice so
deposited in the mail within the County in which the Property is located, shall be deemed
delivered forty-eight (48) hours after such deposit.
13.13 Notification of Sale. Concurrently with the consummation of a sale or
transfer of any Lot or portion thereof whereby the transferee becomes a Record title owner, or
within five (5) business days thereafter, the transferee shall notify the Board of such sale in
writing. Sucl� notification shall set forth the name of the Vansferee and the transferor, the
location of the Lot, the nature of the interest transferred, the transferee's mailing address, and the
date of sale. Prior to receipt of such notification, any and all communications required or
permitted to be given by the Board or the Association shall be deemed to be duly given to the
transferee if duly and timely given to said transferee's transferor.
13.14 Severabilitv. ff any provision of this Declaration, or the application
thereof to any Person or any circumstance, shall be held by a court of competentjurisdiction to
be imalid, void or illegal, the remaining provisions hereof and the application of such provision
to any Person and any circumstance other than those as to which it is held to be invalid, void or
illegal, shall neveRheless remain in full force and effect to the ma�cimum extent permitted by law
and not be affected thereby.
IN WITNESS WHEREOF, Declarant has executed this Declaration on the date
first herein above written.
Declarant: TECHBILT CONSTRUCTION CORP.,
a California cor r ion
By:
Paul K. ch g, President
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STATE OF California �
) ss.
COLTNTY OF San Diego �
p� January 17, 2007 before me, Paula aazmer a Notary Public in
and for said state, personally appeared va„i x_ T,.h g �,
_ , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized capacities, and that by their
signatures on the instrument, the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
WIT'NESS my hand and official se�al� � PAUTA FWtMER
�_(/__ ��� )�/% Comm�xlon M 1652769
_ / /� . � `� Notary PubIIC • CaIlfOmla �
� /.! t�� � �c.ti�+•.c�^.� San Dlepo Counry -
Notary Public in and or said State Nyconr,,.E,�ye,�,,b,�y,��o
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RFC'D ,.IAN 17 20Q7
LENDER'S CONSENT 12 2 8 0
The undersigned, City National Bank ("Lender"), beneficiazy under that certain -
Deed of Trust recorded April 21, 2005, as Instrument No. 2005-0331210 of the Official Records
of San Diego County, California ("Deed of TrusY'), hereby consents to the within Declazation of
Covenants, Conditions and Restrictions for Cazlsbad Oaks North Business Pazk, and hereby
subordinates [he lien of said Deed of Trust to the provisions contained herein. Norivithstanding
anything to the contrary contained in the Declaration, the Declazation shall not be amended
without the prior written consent of Lender so long as the Property is encumbered by the Deed of
Trust refened to above.
Dated this � day of �N uaR y, 02 ��,
600000.11/SD
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• � '__:ii.���
.
• • 1 ��.�=. '�.
•
On � � o!(�U I before
and f said state, p•sonally appeazed
, �,A� t. . "�tI1C,�1 Notazy Public in
nh�.qa� a��
, personally known to me
� en to be the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized capacities, and that by their
signatures on the instrument, the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
Public
for said State
RUiH E. GARCIA
Cammisslon p 1416681
Norarv. �a� - cauromw
los M�e�? Camty �
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LEGAL DESCRIPTION OF PROPERTY
LOTS:
Lots 1 through 8 inclusive of Carlsbad Tract No. CT 97-13-1, , in
the City of Carisbad, County of San Diego, State of California
according to Map thereof No. 14926, recorded in the Official
Records of San Diego County, Califomia on December 15, 2004,
as document no. 2004-1180065.
Lots 13 through 19 inclusive of Carlsbad Tract No. 97-13-2, in the
City of Carlsbad, County of San Diego, State of California
according to Map thereof No. 15505, recorded in the Office of the
County Recorder of San Diego County, California on January 23,
2007, as document no. 2007-0047589.
COMMON AREA LOT:
Lot 9 of Carlsbad Tract No. CT 97-] 3-1, in the City of Carlsbad,
County of San Diego, State of California according to Map thereof
No. 14926, recorded in the Office of the County Recorder of San
Diego County, California on December 15, 2004, as document no.
2004-1180065.
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�TTB
MAP OF TENTATIVE P PROPERTY
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LOT SUMMARY NOTES �' � '
a st�s4crrs �£ aasEo oro n�E cav[seao ad,rs
NORIH BUS/N£SS PARK SPECIF/C PLAN.•
/. 50 FAOT FRONT YARD ANO S/OE 57REE! YA/70 St764p(
ACONG S£CONLI4RY ARIERl4L STREElS
(FAR4Q4Y AVF. A� EL FUERTfJ. NO Sf'.ALE
?. 35 FODT fRANT YqRO AND S/DE S7REET YARD SE/84CK
ALONC /NDUSIRlqL STR£t7S (S7REE75 A; 9; C; R D'f
EXCEPl L075 15,16, JB-27, AND 27 WH/CN H4VF
25 FOOT SIREE! Y,4R0 SE/84CKS. � �
3. 10 FOOl S/DE YARD (/N7E74/ORJ SETR4CK.
4. 10 F007 REAR YARD SET84CK. �
B. S£784CK AREAS AR£ 7F1£ SLOPE ARfAS K'/7N/N TF/£ SE'TH4CKS JN 961005
C. NE7 AREA /S EOU4L 717 PAD AREA PLUS SE7&4CKARE4
D. OOES NOT /NCCUDE FIRE SUPPRESS/ON ZONE. G
CARLSBAD OAKS NORTH �
BUSINE'SS PARK � �
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MAP OF INITIAL COMMON AREAS
Carlsbad Oaks North Business Park Association maintained Common Areas
FRONT YARD AND SLOPE CONIMON AREA LANDSCAPING
1) Along Whiptail Loop, Caribou Court, Gazelle Court:
Landscaped area from face of curb to 35 feet back OR:
•At up slope areas facing street: From face of curb to top of slope.
•At down slope azeas facing away from street, from face of curb to 10 feet back.
2) Along Fazaday Ave.:
•From edge of right of way (10 feet back from face of curb) to 50 feet back OR:
•At upslope areas facing street: From edge of right of way (10 feet from face of
curb) to top of slope.
3) Along EI Fuerte St.
•From edge of right of way (10 feet back from face of curb) to 50 feet back OR:
•At upslope areas facing street: From edge of right of way (10 feet from face of
curb) to top of slope.
NPDES WATER QUALITY BASINS
4) Three water quality/pollution prevention basins. Two basins are adjacent to the south
side of Faraday Ave. east of EI Fuerte St. and one basin is adjacent to EI Fuerte St. south
of the passive park area. The Association's maintenance obligation for any water
quality/pollution prevention basin shall cease if the City of Carlsbad assumes
maintenance responsibilities.
PASSIVE PARK AREAS
5) Passive parks at Lot 9 adjacent to sewer pump station and at Lot 12 adjacent to Faraday
Ave. and Lot 1.
ENTRY MONUMENTS
6) Entry Monuments at 1)EI Fuerte St. north of Loker Ave. East, 2) Faraday Ave. at
southwest project boundary on Lot 2, 3) Faraday Ave. at eastern project boundary on Lot
600000.11/SD EXHIBIT C
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NET ACREAGE SCFIEDULE
Net acreage is defined as the pad area, City required setback, and any driveways in excess of the
setbacks
Lot *
1
2
3
4
5
6
7
8
Net Acreaee
6.0
7.5
4.6
43
42
9.3
6.0
11.3
* As shown on Final Map No. 14926.
Lot *
13
14
15
16
17
18
19
* As shown on Final
Map No. 15505.
600000.11/SD
T8483-006/1-31-0'//e6s/slt
EXHIBIT D
'�_
Net Acreaee
11.8
10.4
4.0
3.9
7.5
'4.9
4.0
1228�
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INVASIVE PLANT LIST
Carlsbad Hydrologic Unit Invasive Species List (as of February, 2006), which is subject to further
revision from time to time.
Acacia species
Agrostis avonacea
Agristis stolonifera
Ailanthus aitissima
Anagallis arvensis
Aptenia cordifolia
Asparagus asparagoides
Atriplex semibaccala
Arundo donax
Brassica nigra
Carprobrotus edulis
Carprobrotus chilensis
Centarea solstitialis
Cirsium vulgare
Cortaderia jubata
Cortaderia selloana
Cynara cardunculus
Cynodon dactylon
Cyperus involucratus
Cytisus striatus
Delairea odorata
Eucalyptus globules and other species
Foenictilum volgare
Genistamon spessulana
Hedera helix
Hedera canariensis
Lepidium latifolium
Lonicera japonica
Myoporum laetum
Nictiana giauca
Pennisetum clandestinum
I600000.11/SD
T8483-006/1 � 16-07lcbilslt
Acacia, wattle, etc
Pacific bent grass
Pacific bent grass
Tree of Heaven
Scarlet pinpernel
Red apple ice plant
Asparagusfern
Australian salt bush
Giant reed
Black mustard
Ice Plant
Ice Plant
Yellow star thistle
Bull thistle
Andean pampas grass
Pampas grass
Artichoke thistle
Bermuda grass
African umbrella plant
Broom
Cape Ivy
Eucalyptus, gum tree, etc.
Fennel
Broom
English Ivy
Algerian ivy
Perennial pepper weed
Japanese honeysuckle
Myoporum
Tree tobacco •
Kikuyo grass
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Pennisetum setacaum
Polypogon monspeliensis
Pueraia montana
Retama monosperma
Ricinis communalis
Schinus molle
Schinus terebinthifolius
Spartinum junceum
Tamarix species
Vinca major
Washingtonia fillerifa
Washintonia robusta
Xanthium strurnarium
I 600000.1 I /SD
T8483-006/1-I6-07/ebs/slt
L'•XIIlBt7' L'
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Fountain grass
Annual bear grass/rabbiYs foot
Kudzu
Broom
Castor bean
Peruvian or California pepper
Brazilian pepper
Broom
Tamarisk, salt cedar
Vinca, Perriwinkle
California fan palm
Mexican fan palm
Cocklebur