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Home My WebLink AboutCT 97-13; CARLSBAD OAKS NORTH; Tentative Map (CT)Sent By: WILSON ENGINEERING; 7604380173; Mar -6-01 1 7: 11 ; • EXHJBITA To City of Carlsbad Disclosure Statement A) Persons with a 10% or greater ownership interest in applicant, Techbilt Construction Corp: Paul K. Tchang Rose S. Tchang Lorna Tchang Alcala Genevieve Tchang Theodore Tchang The contact address for the above individuals is P.O. Box 80036, San Diego, CA 92138. B) The property owners and persons or entities with a greater than 10% interest are as follows: 1) Escondido Serenas Development, Inc., a Nevada corporation as to an undivided 20% interest Wholly owned by Calfinco N.V., a Netherlands Antilles company The address for the above entity is 1120 Silverado St, La Jolla, CA 92037. 2) Carlsbad Oaks North Partners, L.P. a California limited partnership as to an undivided 80% interest Paul K. Tchang Rose S. Tchang Genevieve Tchang Theodore Tchang The contact address for the above individuals is P.O. Box 80036, San Diego, CA 92138. Page 4/4 • • Ladwig Design Group, Inc. PROJECT DESCRIPTION CARLSBAD OAKS NORTH BUSINESS PARK (LADWIG DESIGN GROUP, INC. JIN L-1021) This specific plan, tentative map, hillside development permit, general plan amendment, zone change, and floodplain special use permit are intended to be tools to implement the goals and policies of the City of Carlsbad General Plan. The specific plan is required due the project's location within the airport influence area and shall be known as Carlsbad Oaks North Specific Plan. The project encompasses a total of 414 acres which was formally the northern part of the Carlsbad Airport Business Center Specific Plan No. 200 known as Area B. The southerly portion of the Carlsbad Airport Business Center's Specific Plan known as Area A has been developed as industrial. The purpose of this application is to provide for the design, development and operation of a light industrial complex within the City of Carlsbad. The land use plan and development regulations will insure an industrial development that conforms to Community goals and values and the protection of adjacent land uses from unfavorable impacts. The specific plan will be adopted pursuant to the provision of the California Government Code, Sections 65450ET-SEG. and the Land Use Element of the City of Carlsbad General Plan. The area covered by this plan is included within the Palomar Airport Special Treatment Area specified in the General Plan. In addition, the specific plan establishes detailed regulations, conditions and programs for development within the area specified herein. Carlsbad Oaks North is located north of Palomar Airport Road and approximately 1 mile east of El Camino Real. The Carlsbad Raceway is located east of the project site. Immediately north of the proposed project is the Dawson Los Monos Canyon Reserve. This sensitive area is part of the University of California Natural Land and Water Resources System and is used by the University for scientific and educational purposes. The property to the west is the County of San Diego proposed industrial park and the City of Carlsbad Safety Center. Aqua Hedionda Creek, in its southern fork, crosses the southerly portion of the ownership. The linear riparian woodland, consisting of oaks, willows and sycamore trees, will be retained. Care will be taken in the alignment of Faraday Avenue onsite and the extension of El Fuerte Street to minimize impact on the riparian habitat. The site topography can be characterized as previously farmed and cultivated rolling scrub covered hills with several eroded hillsides containing gullies. 703 Palomar Airport Road ♦ Suite 300 ♦ Carlsbad, California 92009 (760) 438-3182 FAX (760) 438-0173 Project Description July 7, 1997 Page 2 • A description of the components of this application is as follows: General Plan Amendment/Zone Change Based on current biological information and City of Carlsbad design requirements, changes to the existing boundaries between the planned industrial and open space are required. The area of planned industrial when compared to the ZoneQ6LF~ has decreased from 289 acres to 227 acres (21 percent). The area of open space has increaseo from 125 acres to 186 acres (49 percent). Tentative Map The tentative map is made up of 27 industrial lots and 3 open space lots. Industrial lots range in size from 2.4 acres gross to 22.9 acres and average 10.7 acres. Net useable pads range from 1.9 acres to 20.9 acres and average 5.6 acres. The 3 open space lots plus a portion of Lot 1 equals 186.8 acres or 45 percent of the entire project site. Two eating areas are included and are spread throughout the subdivision. These are areas for employee eating and are adjacent to public rights of way. All streets meet City standards for industrial areas. The anticipated buildings square footage is 1,921,000 square feet. This is based on approximately 30 percent building coverage of the net pad areas. The grading for the project totals 2.8± million cubic yards and averages 10,990 per graded acre including the onsite collector roads, Faraday A venue and El Fuerte Street. Slope banks are generally under 30 feet in height. In an effort to create larger industrial sites, a number of campus pads have been provided. Three of the largest pads are 10 acres, 14. 4 acres, and 20.9 acres.-Nin.e additional pads are greater than 5 acres in size. There is currently a demand for these larger sites in the growing Carlsbad market and at this time there are no large sites available. These larger pads reduce the amount of public streets necessary to serve the area, thereby reducing public costs for future maintenance. Also, users can acquire these larger sites for future expansions which will help on business retention for the City which is also a concern. The project street system was designed to follow the natural contour in an effort to keep grading to a minimum and to provide a pleasing street scene without straight slopes. The drainage system will include detention/desiltation basins on most lots. In addition, the major drainage crossing at Faraday Avenue will function as a detention basin. (See O'Day Consultants engineering report included with the special use/floodplain report.) Sewage will be collected in a gravity system to a pump station on Lot 28 near the intersection of El Fuerte and Faraday Avenue. A force main will then pump the effluent southwesterly to the existing system near El Camino Real. 703 Palomar Airport Road ♦ Suite 300 ♦ Carlsbad, California 92009 (760) 438-3182 FAX (760) 438-0173 • Project Description July 7, 1997 Page 3 Hillside Development Permit The attached constraints map has clearly outlined the development area. In addition, the slope analysis shows the project slope categories are as follows: 0 to 0-15 percent -171.2 acres -41.4 percent, 15-25 percent -139.7 acres -33.7 percent, 25- 40 percent -64.6 acres -15.6 percent, greater than 40 percent -24.4 acres -5.9 percent and previously graded slopes 14.1 acres - 3 .4 percent. A total of 17.8 acres/73 percent/of all slopes greater than 40 percent are being maintained undisturbed in open space lots. The area of slopes over 40 percent being graded equal approximately 6.6 acres total and are scattered over 60 small areas throughout the project. In addition, the open space being set aside as part of this application has increased by 61 acres when compared to the current Zone 16 LFMP. This 61 acres has done away with small segments of open space (some of which is made up of the 40 percent slopes) scattered throughout the project that were shown in the zone plan. The small areas are now concentrated adjacent to the higher quality open space and habitat in the central and western portions of the habitat corridors within the project. Special Use Permit/Floodplain The only work within the 100-year flood limits is the 0.4± acres of impact required for the crossing of Aqua Hedionda Creek at Faraday A venue. This crossing location was picked because of the natural narrow configuration of the creek. Also, the existing Zone 16 plan had El Fuerte Street connecting to Faraday near the proposed location of Street F. One creek crossing was eliminated in this design by relocating El Fuerte in the proposed location shown. O'Day Consultants has submitted the necessary engineering data for the City Engineer to review as part of the special use permit/floodplain application. Specific Plan The specific plan has been prepared per City and State guidelines. Plan uses are identified along with permitted uses, implementation measures, general development standards, and mitigating measures. 703 Palomar Airport Road ♦ Suite 300 ♦ Carlsbad, California 92009 (760) 438-3182 FAX (760) 438-0173 Project Description July 7, 1997 Page 4 Summary • This application has been prepared following City and State requirements and will be one of the last major industrial projects to be developed in the City of Carlsbad. Extensive care has been taken to be sensitive to the natural resources in the area and yet provide uniquely located sites which will offer parcels that take advantage of the natural setting and yet provide significant buffer to sensitive areas. The City Trail Segment No. 26 will cross the central valley and total approximately 6,400 lineal feet ( 1.2 miles) from west to east. The major portion of the trail will be along or in natural areas and yet outside the sensitive habitat corridor areas. The project has also proposed a landscape buffer adjacent to the existing residential uses in the City of Vista along the eastern edge of the development. In addition, the specific plan calls for noise and odor controls to assure future development will not be intrusive to the residents. No other adjacent areas are for residential use. Significant work has been accomplished to assure implementation of the City's Habitat Management Plan (HMP). The major east/west natural corridor is the central feature of our project and the HMP. This project will provide permanent protection needed to implement the City's HMP planning efforts for this area. 703 Palomar Airport Road ♦ Suite 300 ♦ Carlsbad, California 92009 (760) 438-3182 FAX (760) 438-0173 • • ENVIRONMENTAL IMPACT ASSESSMENT FORM -PART I (TO BE COMPLETED BY THE APPLICANT) CASE NO: ---------- DATE RECEIVED: ----------(To be complete by stajj) BACKGROUND 1. CASE NAME: Carlsbad Oaks North Business Park 2. APPLICANT: Techbilt Construction Corporation 3. ADDRESS AND PHONE NUMBER OF APPLICANT: 3557 Kenyon Street, San Diego California 92110 -(619) 223-1663 4. PROJECT DESCRIPTION: General Plan Amendment, Zone Change (PC to PM and . _ OS) Tentative Map, Hillside Development Permit, Special Use Permit (Floodplain) and Specific Plan for 414± Acres in Zone 16 -lying north of Palomar Airport Road and east of El Camino Real, SUMMARY OF ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: Please check any of the environmental factors listed below that would be potentially affected by this project. This would be any environmental factor that has at least one impact checked "Potentially Significant Impact," or "Potentially Significant Impact Unless Mitigation Incorporated" in the checklist on the following pages. D Land Use and Planning D Population and Housing D Geological Problems D Water D Air Quality D Transportation/Circulation D Biological Resources D Public Services D Utilities & Service Systems D Energy & Mineral Resources D Aesthetics D Hazards D Noise D Cultural Resources D Recreation D Mandatory Findings of Significance 1 Rev. 03/28/96 -ENVIRONMENTAL IMPACTS STATE CEQA GUIDELINES, Chapter 3, Article 5, Section 15063 requires that the City conduct an Environmental Impact Assessment to determine if a project may have a significant effect on the environment. The Environmental Impact Assessment appears in the following pages in the form of a checklist. This checklist identifies any physical, biological and human factors that might be impacted by the proposed project and provides the City with information to use as the basis for deciding whether to prepare an Environmental Impact Report (EIR), Negative Declaration, or to rely on a previously approved EIR or Negative Declaration. • A brief explanation is required for all answers except "No Impact" answers that are adequately supported by an information source cited in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved. A "No Impact" answer should be explained when there is no source document to refer to, or it is based on project-specific factors as well as general standards. • "Less Than Significant Impact" applies where there is supporting evidence that the potential impact is not adversely significant, and the impact does not exceed adopted general standards and policies. • "Potentially Significant Unless Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact." The developer must agree to the mitigation, and the City must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level. • "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect is significant. • Based on an "EIA-Part II", if a proposed project could have a potentially significant effect on the environment, but all potentially significant effects (a) have been analyzed adequately in an earlier EIR or Mitigated Negative Declaration pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier EIR or Mitigated Negative Declaration, including revisions or mitigation measures that are imposed upon the proposed project, and none of the circumstances requiring a supplement to or supplemental EIR are present and all the mitigation measures required by the prior environmental document have been incorporated into this project, then no additional environmental document is required (Prior Compliance). • When "Potentially Significant Impact" is checked the project is not necessarily required to prepare an EIR if the significant effect has been analyzed adequately in an earlier EIR pursuant to applicable standards and the effect will be mitigated, or a "Statement of Overriding Considerations" has been made pursuant to that earlier EIR. • A Negative Declaration may be prepared if the City perceives no substantial evidence that the project or any of its aspects may cause a significant effect on the environment. 2 Rev. 03/28/96 • • If there are one or more potentially significant effects, the City may avoid preparing an EIR if there are mitigation measures to clearly reduce impacts to less than significant, and those mitigation measures are agreed to by the developer prior to public review. In this case, the appropriate "Potentially Significant Impact Unless Mitigation Incorporated" may be checked and a Mitigated Negative Declaration may be prepared. An EIR must be prepared if "Potentially Significant Impact" is checked, and including but not limited to the following circumstances: (1) the potentially significant effect has not been discussed or mitigated in an Earlier EIR pursuant to applicable standards, and the developer does not agree to mitigation measures that reduce the impact' to less than significant; (2) a "Statement of Overriding Considerations" for the significant impact has not been made pursuant to an earlier EIR; (3) proposed mitigation measures do not reduce the impact to less than significant, or; (4) through the EIA-Part II analysis it is not possible to determine the level of significance for a potentially adverse effect, or determine the effectiveness of a mitigation measure in reducing a potentially significant effect to below a level of significance. A discussion of potential impacts and the proposed mitigation measures appears at the end of the form under DISCUSSION OF ENVIRONMENTAL EVALUATION. Particular attention should be given to discussing mitigation for impacts which would otherwise be determined significant. 3 Rev. 03/28/96 Issues (and Supporting Information Sources): (SuppJeii~ig{c/§§~'J1Le'!ti,maii/!J~f:e./4f:fij{10:;_,yf'4q~ach'ef4} I. LAND USE AND PLANNING. Would the proposal:. a) Conflict with general plan designation or zoning? (Source #(s): ( ) b) Conflict with applicable environmental plans or policies adopted by agencies with jurisdiction over the project? ( ) c) Be incompatible with existing land use in the vicinity? ( ) d) Affect agricultural resources or operations ( e.g. impacts to soils or farmlands, or impacts from incompatible land uses? ( ) e) Disrupt or divide the physical arrangement of an established community (including a low-income or minority community)? ( ) II. POPULATION AND HOUSING. Would the proposal: a) Cumulatively exceed official regional or local population projections? ( ) b) Induce substantial growth in an area either directly or indirectly ( e.g. through projects in an undeveloped area or extension of major infrastructure)? ( ) c) Displace existing housing? ( housing, ) especially affordable III. GEOLOGIC PROBLEMS. Would the proposal result in or expose people to potential impacts involving: a) Fault rupture? ( ) b) Seismic ground shaking? ( ) c) Seismic ground failure, including liquefaction? ( ) d) Seiche, tsunami, or volcanic hazard? ( e) Landslides or mudflows? ( t) Erosion, changes m topography or unstable soil conditions from excavation, grading, or fill? ( ) g) Subsidence of the land? ( ) h) Expansive soils? ( ) i) Unique geologic or physical features? ( ) IV. WATER. Would the proposal result in: a) Changes in absorption rates, drainage patterns, or the rate and amount of surface runoff? ( ) b) Exposure of people or property to water related hazards such as flooding? ( ) 4 Potentially Significant Impact □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ Potentially Significant Unless Mitigation Incorporated □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ Less Than No Significan Impact t Impact Li] [i] □ □ □ □ □ □ □ □ □ [KJ [[] □ □ □ □ □ GJ □ [Kl Rev. 03/28/96 Issues (and Supporting Infonnation Sources): (Supplemental documents max be ref erred to and attached} c) Discharge into surface waters or other alteration of surface water quality (e.g. temperature, dissolved oxygen or turbidity)? ( ) d) Changes in the amount of surface water in any water , body? ( ) e) Changes in currents, or the course or direction of water movements? ( ) f) Changes in the quantity of ground waters, either through direct additions or withdrawals, or through interception of an aquifer by cuts or excavations or through substantial loss of groundwater recharge capability? ( ) g) Altered direction or rate of flow of groundwater? ( ) h) Impacts to groundwater quality? ( ) i) Substantial reduction in the amount of groundwater otherwise available for public water supplies? ( ) V. AIR QUALITY. Would the proposal: a) Violate any air quality standard or contribute to an existing or projected air quality violation? ( ) b) Expose sensitive receptors to pollutants? ( ) c) Alter air movement, moisture, or temperature, or cause any change in climate? ( ) d) Create objectionable odors? ( ) VI. TRANSPORTATION/CIRCULATION. Would the proposal result in: a) Increased vehicle trips or traffic congestion? ( ) b) Hazards to safety from design features (e.g. sharp curves or dangerous intersections) or incompatible uses ( e.g. farm equipment)? ( ) c) Inadequate emergency access or access to nearby uses? ( ) d) Insufficient parking capacity on-site or off-site? ( ) e) Hazards or barriers for pedestrians or bicyclists? ( ) f) Conflicts with adopted policies supporting alternative transportation (e.g. bus turnouts, bicycle racks)? ( ) g) Rail, waterborne or air traffic impacts? ( ) 5 Potentially Significant Impact □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ Potentially Significant Unless Mitigation Incorporated □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ Less Than No Significan Impact t Impact □ □ □ □ □ □ □ □ □ □ 00 Rev. 03/28/96 Issues (and Supporting Information Sources): (Sup.'ftlemental,documentsmay.be:ffjerredJ/itihtlattat:hed). • ••'•• • _,•,• •,;,~"•• _,• .~~••• ,),> )e<?. ' •• ~-v~/4,.W,>c ,,.,,., -:: .... .- VII. BIOLOGICAL RESOURCES. Would the proposal result in impacts to: a) Endangered, threatened or rare species or their habitats (including but not limited to plants, fish, insects,. animals, and birds? ( ) b) Locally designated species (e.g. heritage trees)? ( ) c) Locally designated natural communities ( e.g. oak forest, coastal habitat, etc.)? ( ) d) Wetland habitat (e.g. marsh, riparian and vernal pool)? ( ) e) Wildlife dispersal or migration corridors? ( ) VIII. ENERGY AND MINERAL RESOURCES. Would the proposal? a) Conflict with adopted energy conservation plans? ( ) b) Use non-renewable resources in a wasteful and inefficient manner? ( ) c) Result in the loss of availability of a known mineral resource that would be of future value to the region and the residents of the State? ( ) IX. HAZARDS. Would the proposal involve: a) A risk of accidental explosion or release of hazardous substances (including, but not limited to: oil, pesticides, chemicals or radiation)? ( ) b) Possible interference with an emergency response plan or emergency evacuation plan? ( ) c) The creation of any health hazard or potential health hazards? ( ) d) Exposure of people to existing soutces of potential health hazards? ( ) e) Increase fire hazard m areas with flammable brush, grass, or trees? ( ) X. NOISE. Would the proposal result in: a) Increases in existing noise levels? ( ) b) Exposure of people to severe noise levels? ( ) XI. PUBLIC SERVICES. Would the proposal have an effect upon, or result in a need for new or altered government services in any of the following areas: a) Fire protection? ( ) b) Police protection? ( ) c) Schools? ( ) 6 Potentially Significant Impact □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ Potentially Significant Unless Mitigation Incorporated □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ Less Than No Significan Impact t Impact [xJ [ill [ill ~ [fil □ □ □ □ □ □ □ □ [x] [xJ □ □ □ □ □ [x] [i] [i] [i] □ □ Rev. 03/28/96 Issues (and Supporting lnfonnation Sources): (SupplementaZ:documents.rru:l;y::[/e referr'edto. ancfr1ttachetl) " ' • • .,. .< .,-.• ' ,'· • :.,., ,,,... ' -~.. ,.,.. '" . -~ , _. .• , •. " •. . d) Maintenance of public facilities, including roads? ( ) e) Other governmental services? ( ) XII. UTILITIES AND SERVICES SYSTEMS. Would the proposal result in a need for new systems or supplies, or substantial alterations to the following utilities: a) Power or natural gas? ( ) b) Communications systems? ( ) c) Local or regional water treatment or distribution facilities? ( ) d) Sewer or septic tanks? ( ) e) Stonn water drainage? ( f) Solid waste disposal? ( g) Local or regional water supplies? ( XIII. AESTHETICS. Would the proposal: ) ) a) Affect a scenic or vista or scenic highway? ( ) b) Have a demonstrate negative aesthetic effect? ( ) c) Create light or glare? ( ) XIV. CULTURAL RESOURCES. Would the proposal: ) a) Disturb paleontological resources? ( ) b) Disturb archaeological resources? ( ) c) Affect historical resources? ( ) d) Have the potential to cause a physical change which would affect unique ethnic cultural values? ( ) e) Restrict existing religious or sacred uses within the potential impact area? ( ) XV.RECREATIONAL. Would the proposal: a) Increase the demand for neighborhood or regional parks or other recreational facilities? ( ) b) Affect existing recreational opportunities? ( ) 7 Potentially Significant Impact □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ • Potentially Less Than No Significant Significan Impact Unless t Impact Mitigation Incorporated □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ [i] Gl ~ ~ [ij GI []] [ii □ □ □ □ □ □ [] □ □ □ □ □ □ □ □ [K] □ [xJ □ Rev. 03/28/96 • Issues (and Supporting Information Sources): (Supplementahdocuments may'be:referr:ediio andaitached} , . "~' •• ~-~., ... , .. , . ~ < " , ''··· ':.'. · :x.~~-'.s,: .. :. ,,. . ~ ~.-,.._,,,~ .. , ., ""'-,,:.,.,., • .,,;,,.;, , w. """" . •. XVI. MANDATORY FINDINGS OF SIGNIFICANCE. a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or , wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)? c) Does the project have environmental effects which will cause the substantial adverse effects on human beings, either directly or indirectly? XVII. EARLIER ANALYSES. Potentially Significant Impact □ □ □ • Potentially Significant Unless Mitigation Incorporated □ □ □ Less Than No Significan Impact t Impact □ □ □ Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, one or more effects have been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case a discussion should identify the following on attached sheets: a) Earlier analyses used. Identify earlier analyses and state where they are available for review. b) Impacts adequately addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c) Mitigation measures. For effects that are "Less than Significant with Mitigation Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site- specific conditions for the project. 8 Rev. 03/28/96 • Ladwig Design Group, Inc. SUPPLEMENTAL AND SUPPORTING INFORMATION FOR THE ENVIRONMENTAL IMPACT ASSESSMENT FORM -PART I FOR CARLSBAD OAKS NORTH BUSINESS PARK I. Land Use and Planning a. Part of this application includes a general plan amendment and a zone change. The general plan amendment will increase the open space acreage and decrease the industrial development designations for the property. In addition, the existing zoning is a residential zone and will be changed to a compatible industrial zone. b. Impacts are anticipated on Coastal Sage Scrub. These impacts will be offset by mitigation/dedication of adequate acreage in the existing Highlands Mitigation Bank. The applicant currently owns Phases 2 and 3 of the existing mitigation bank. II. Population and Housing b. As part of the future development in this area, Faraday A venue will be extended between Melrose A venue in Vista and Orion Street in the City of Carlsbad. This could induce growth on the County owned land that has an industrial designation. III. Geologic Problems f, g, and h. Significant geologic information has been obtained and is submitted along with this application. Please refer to those documents for answers to these three questions. IV. Water a, c, e, f, and h. The property is currently undeveloped and changes will occur as part of the development of the property. Absorption rates will change. There will be discharge to existing Aqua Hedionda Creek. There will be minor changes in the direction of the current water movement and there could be changes in the quantity of water reaching groundwater levels. 703 Palomar Airport Road ♦ Suite 300 ♦ Carlsbad, California 92009 (760) 438-3182 FAX (760) 438-0173 Carlsbad Oaks North Business Park Page 2 Onsite detention and desiltation are being provided and there are no major diversions of water as part of this project. V. Air Quality a. Increased traffic will contribute to existing air quality levels. VI. Transportation/Circulation a. The project will generate additional average daily trips of 17,700. This is a significant reduction from what was anticipated with the existing Zone 16 Local Facilities Management Plan which was 28,900 or a reduction of 11,200 from what was proposed. Also, with the eventual completion of El Fuerte and Faraday westerly to the safety center, traffic will be able to take additional routes and the existing congestion on Palomar Airport Road will be relieved. VII. Biological Resources a, b, c, d, and e. Certain impacts will occur to habitats of certain threatened species. In addition, there will be minor impacts on some oak trees and approximately a 0.4 acre wetland impact with the crossing of Faraday Avenue over Aqua Hedionda Creek. All these potential impacts will be mitigated by either setting aside specific areas in approved mitigation banks, revegetation or habitat enhancement. X. Noise a and b. With the extension of the circulation routes (Faraday and El Fuerte) additional increases in traffic levels will occur on Faraday in Vista adjacent to existing residences. XI. Public Services a, band d. Additional Police, Fire and maintenance responsibilities will be required for the new subdivision improvements. These costs will be offset from the revenues generated from this project. 703 Palomar Airport Road ♦ Suite 300 ♦ Carlsbad, California 92009 (760) 438-3182 FAX (760) 438-0173 Carlsbad Oaks North Business Park Page 3 XII. Utilities and Services Systems a, b, c, d, e, f, and g. • All utility services will need to be extended into the project and will be paid for within the project by development. City fees will be paid for the offsite major facilities as required. XIII. Aesthetics a and c. This project will be visible from Palomar Airport Road. Also, the industrial complex will have a lighting system for security and parking areas which will be visible from adjacent areas. Significant landscaping is proposed for the new development areas along with lighting that will be directed away from any residences as required. XIV. Cultural Resources a and b. It is unknown whether any paleontological resources will be impacted onsite. In addition, archaeological resources will be identified and appropriate mitigation proposed. XV. Recreational a. Additional demand will be required for recreational facilities. Upon the acquisition of subsequent building permits a $0.40 per square foot recreational fee will be charged for recreational purposes. XVI. Mandatory Findings of Significance a. Some impact to the habitat of threatened species and filling in a minor area of wetlands will be mitigated with the appropriate on and combination of offsite mitigation. 703 Palomar Airport Road ♦ Suite 300 ♦ Carlsbad, California 92009 (760) 438-3182 FAX (760) 438-0173 ER NO. 1133405-11 FIRST AMERICAN TITLE INSURANCE COMPANY 411 IVY STREET, SAN DIEGO, CALIFORNIA 92101 P.O. BOX 808, SAN DIEGO, CALIFORNIA 92112 (619) 238-1776 JUNE 9, 1997 TECHBILT COMPANIES 3575 KENYON ST. SAN DIEGO, CA 92110 ATTN: TED TCHANG YOUR REF: CARLSBAD OAKS NORTH OUR ORDER NO. 1133405-11 IN RESPONSE TO THE HEREIN REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE, THIS COMPANY HEREBY REPORTS THAT IT IS PREPARED TO ISSUE, OR CAUSE TO BE ISSUED, AS OF THE DATE HEREOF, A POLICY OR POLICIES OF TITLE INSURANCE DESCRIBING THE LAND AND THE ESTATE OR INTEREST THEREIN HEREINAFTER SET FORTH, INSURING AGAINST LOSS WHICH MAY BE SUSTAINED BY REASON OF ANY DEFECT, LIEN OR ENCUMBRANCE NOT SHOWN OR REFERRED TO AS OR NOT EXCLUDED FROM COVERAGE PURSUANT TO THE PRINTED SCHEDULES, CONDITIONS AND STIPULATIONS OF SAID POLICY FORMS. THE PRINTED EXCEPTIONS AND EXCLUSIONS FROM THE COVERAGE OF SAID POLICY OR POLICIES ARE SET FORTH HEREIN. COPIES OF THE POLICY FORMS SHOULD BE READ. THEY ARE AVAILABLE FROM THE OFFICE WHICH ISSUED THIS REPORT. PLEASE READ THE EXCEPTIONS SHOWN OR REFERRED TO BELOW AND THE EXCEPTIONS AND EXCLUSIONS SET FORTH IN EXHIBIT A OF THIS REPORT CAREFULLY. THE EXCEPTIONS AND EXCLUSIONS ARE MEANT TO PROVIDE YOU WITH NOTICE OF MATTERS WHICH ARE NOT COVERED UNDER THE TERMS OF THE TITLE INSURANCE POLICY AND SHOULD BE CAREFULLY CONSIDERED. IT IS IMPORTANT TO NOTE THAT THIS PRELIMINARY REPORT IS NOT A WRITTEN REPRESENTATION AS TO THE CONDITION OF TITLE AND MAY NOT LIST ALL LIENS, DEFECTS, AND ENCUMBRANCES AFFECTING TITLE TO THE LAND. THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF FACILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF A POLICY OF TITLE INSURANCE, A BINDER OR COMMITMENT SHOULD BE REQUESTED. DATED AS OF JUNE 2, 1997 AT 7:30 A.M. ROY^ROVENCE - TITLE OFFICER DIRECT DIAL PHONE 231-4652 FAX NO. 231-4647 JUN t 0 1997 PAGE 1 LADWIG DESIGN GR Recording Requested By: Mail to: ST ATE OF CALIFORNIA Wildlife Conservation Board 801 K. St., Suite 806 Sacramento, CA 95814 Above Space for Recorder's Use CONSERVATION EASEMENT AGREEMENT THIS CONSERVATION EASEMENT AGREEMENT ("Easement") is made this 20th day of July, 2004 by, Paul K.Tchang, Trustee Uff/A June 16, 1978, as to an undivided 80% interest, and Carlsbad Oaks North Partners L.P., a California limited partnership, as to an undivided 20% interest ( collectively referred to as "Granter"), in favor of the State of California, acting by and through the California Department of Fish and Game ("Grantee" and sometimes "Department"). WITNESS ETH: WHEREAS, Grantor is the sole owner in fee simple of certain real property in the City of Carlsbad, State of California, more particularly described in Exhibit "A" attached hereto and incorporated by this reference (the "Property"); and WHEREAS, the Property possesses wildlife and native habitat values (collectively, "conservation values") of great importance to Grantor, the people of San Diego County and the people of the State of California; and WHEREAS, the property supports a variety of native plant communities including, without limitation, coastal sage scrub, and comprises habitat which may be suitable for a variety of endangered, threatened and sensitive species; and WHEREAS, the Department has, pursuant to the Fish and Game Code section 1802,jurisdiction over the conservation, protection, and management of fish, wildlife, native plants and habitat necessary for biologically sustainable populations of those species; and WHEREAS, Grantor, as successor in interest to BA Properties, Inc., Department, and the United States Fish and Wildlife Service ("USFWS") have entered into that certain Carlsbad Highlands Conservation Bank Implementation Agreement dated April 5, 1995 (the "Implementation Agreement"), which Implementation Agreement sets forth the terms and conditions pursuant to which Grantor shall convey to Grantee this Easement and fee title to the Property; and . . WHEREAS, Grantor intends to convey to Grantee the right to preserve and protect the conservation values of the Property in perpetuity; and WHEREAS, Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein and in the Implementation Agreement and to preserve and to protect in perpetuity the conservation values of the Property in accordance with the terms of this Conservation Easement for the benefit of this generation and the generations to come; NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of California and Civil Code Section 815, et seq., Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the Property of the nature and character and to the extent herinafter set forth; provided however, that Granter hereby expressly reserves from such conservation easement an easement for public street and public utility purposes as more fully described in Exhibit B attached hereto (the "Cannon Road Easement"). 1. Purpose. It is the purpose of this Easement to assure that the Property will be retained forever in a natural, open space condition and to prevent any use of the Property that will significantly impair or interfere with the conservation values of the Property. Grantor intends that this Easement will confine the use of the Property to such activities, including without limitation, those involving the preservation of native species and their habitat in a manner consistent with the habitat conservation purposes of this Easement. Notwithstanding anything to the contrary contained herein, the parties acknowledge that Granter has also delivered to Department a Grant Deed conveying the Property to the State of California (the "Grant Deed") and that upon the recordation of such Grant Deed all rights and obligations of the undersigned Granter shall be conveyed to and assumed by the State and its successors and assigns. 2. Rights of Grantee. To accomplish the purpose of this Easement the following rights are conveyed to Grantee by this Easement: a) To preserve and protect the conservation values of the Property; b) To enter upon the Property at reasonable times in order to monitor Grantor's compliance with and to otherwise enforce the terms of this Easement; provided that Grantee shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property; and c) To prevent any activity on or use of the Property that is inconsistent with the habitat conservation purposes of this easement; d) All mineral, air, and water rights required to protect and to sustain the biological resources of the easement lands. e) All present and future development rights. 3. Prohibited Uses. The Property shall be held and retained in an open-space condition in perpetuity. Any activity on or use of the Property inconsistent with the habitat conservation purposes of this Easement is prohibited. Grantor shall not authorize any activities on the Property which may degrade or harm the biological values of the land. Granter shall not authorize the use by Grantor, Grantor's agents, or any third party of off road vehicles, grazing or surface entry for exploration or extraction of minerals. 4. Reserved Rights. Gran tor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in or permit or invite others to engage in all uses of the Property that are not prohibited herein and are not inconsistent with the purpose of this Easement. 5. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of this Easement or that a violation is threatened, Grantee shall give written notice to Granter of such violation and demand corrective action sufficient to cure the violation. If Grantor fails to cure the violation within thirty (30) days after receipt of notice thereof from Grantee, or under circumstances where the violation cannot reasonably be cured within a thirty (30) day period, fails to begin curing such violation within the thirty (30) day period, of fails to continue diligently to cure such violation until finally cured, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Easement. Nothing contained in this Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor's reasonable control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. 6. Conveyance "As-Is". Notwithstanding anything to the contrary contained herein, the easement rights conveyed hereby are expressly subject to the Cannon Road Easement as described in the attached Exhibit "B", and any and all existing rights of way, easements, encumbrances, and other matters of record as of the date of this Easement, as described in the attached Exhibit "C", and are conveyed in an "AS IS" condition, "WITH ALL FAULTS" as of such date. No representations or warranties have been, are, or wiIJ be made, and no responsibility has been, is, or will be assumed by Grantor as to t~e condition of the Property or the conservation value thereof. 7. Interpretation and Headings. The language in all parts of this Easement shall in all cases be simply construed according to its fair meaning and not strictly for or against any party. Headings of the paragraphs of this Easement, are for the purposes of convenience only and the words contained in such headings shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Easement. 8. Modification. This Easement is not subject to modification except in a writing signed by all parties and any attempted modification no in compliance with this requirement shall be void. The parties shall use their good faith efforts to complete such modifications within ninety (90) days after the initial request is made for a modification by the requesting party. 9. Notices. All notices, demands, or requests from one party to another may be personally delivered, sent by facsimile, sent by recognized overnight delivery service, or sent by mail, certified or registered, postage prepaid, to the addresses stated in this paragraph and shall be effective at the time of personal delivery, facsimile transmission, or mailing. Grantor: Grantee: Paul K. Tchang Trustee U/T/A June 16, 1978 Carlsbad Oaks North Partners L.P. C/O Techbilt Companies 3575 Kenyon St. San Diego, CA 92110 Fax No. (619) 223-2865 Legal Advisor's Office California Department of Fish and Game 1416 9th St. Sacramento, CA 94236 Fax No. (916) 654-3805 with a copy to: Regional Manager California Department of Fish and Game 330 Golden Shores, Suite 50 Long Beach, CA 90802 Fax No. (310) 590-5193 Any party may change the address to which such notices, payments, or other communications may be sent by giving the other parties written notice of such change. The parties agree to accept facsimile transmitted signed documents and agree to rely upon such documents as if they bore original signatures. Each party agrees to provide to the other parties, within seventy-two (72) hours after transmission, such documents bearing original signatures. 10. Counterparts. This Easement may be executed by the parties in several counterparts, each of which shall be deemed to be an original executed document. 11. Successors and Assigns. The covenants, conditions, and restrictions contained in this Easement shall be deemed to run with the land, and-shall be binding on and inure to the benefit of the parties and their successors, assignees, and transferees; provided, however, that notwithstanding anything to the contrary contained herein Grantee acknowledges that the parties intend, pursuant to the Implementation Agreement, to record the Grant Deed as soon as possible after the recordation of this Easement and that it is intended that all obligations of the undersigned Grantor shall terminate upon recordation thereof. Exhibit "A" Legal Description Phase 3 THE LAND REFERRED TO HEREIN IS SITUATED IN THE .STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: THAT PORTION OF LOT D OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIF~RNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED IN A GRANT DEED ("DEED") TO CARLSBAD DEVELOPMENT COMPANY PER FILE NO. 87-326049, RECORDED JUNE 12 1 1987 1 IN THE OFFICE OF SAID COUNTY RECORDER, .DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT L; THENCE SOOTH 00°16'53" WEST (SOUTH 00°22 1 22" WEST, DEED)1 A DISTANCE OF 660.00 FEET; THENCE SOUTH 8 9 ° 3 9' 31" WEST, PARAi.,LEL WITH THE SOUTHERLY LINE OF _SAID LOT L1 A DISTANCE OF 2555.01 FEET (SOUTH 89°36' WEST 2549.26 FEET, DEED), TO A POINT IN A LINE WHICH IS PARALLEL WITH AND 89.92 FEET EASTERLY FROM THE SOUTHERLY PROLONGATION OF THE WESTERLY LINE OF SAID LOT L; THENCE NORTH 76°18'18" EAST (NORTH 76°24 1 EAST, DEED), A DISTANCE OF 192 5. 00 FEET i THENCE NORTH 41 ° 57 I 03 It EAST (NORTH 41°54I35" EAST. DEED) A DISTANCE OF 1027.32 FEET TO A POINT IN THE EAST LINE OF SAID LOT L SAID POINT BEING THE MOST NORTHERLY CORNER OF THAT PORTION OF SAID LOTS D AND L GRANTED TO THE STATE OF CALIFORNIA ("STATE") BY DEED RECORDED JANUARY 6 1 1995 1 AS DOCUMENT NO. 1995-0005894 OF OFFICIAL RECORDS; THENCE NORTH 0°16'53" EAST A DISTANCE OF 745.00 FEET (NORTH 0°16'53" EAST 1 745.17 DEED) TO THE WESTERLY TERMINUS OF THE NORTHERLY LINE OF SAID CARLSBAD DEVELOPMENT COMPANY LAND; THENCE ALONG SAID NORTHERLY LINE, SOUTH 88°57'08" EAST A DISTANCE OF 2660.58 FEET (SOUTH 88°54'31" EAST, 2660.50, DEED), TO THE NORTHEAST CORNER THEREOF, SAID CORNER BEING A POINT IN THE EAST LINE OF SAID LOT D; THENCE ALONG SAID EAST LINE, SOUTH 0 0 O 1 0' 0 2" EAST ( SOUTH 0 O 0 7' 3 5" EAST, DEED) A DISTANCE OF 599.99 FEET; TO THE TRUE POINT OF BEGINNING; SAID POINT ALSO BEING THE MOST EASTERLY SOUTHEAST CORNER OF LAND CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED JUNE 18 1 1997 AS FILE NO. 1997-0282696, OF OFFICIAL RECORDS; THENCE CONTINUING ALONG SAID EAST LINE 1 SOUTH 00°10'02" EAST A DISTANCE OF 1740.01 FEET TO THE NORTHERLY TERMINUS OF _THE EAST LINE OF THE LAND DESCRIBED IN CONSERVATION EASEMENT AGREEMENT RECORDED FEBRUARY 24, 1995 AS DOCUMENT NO. 1995-0081433 1 OFFICIAL RECORDS; THENCE ALONd A COMMON LINE WITH SAID LAND THE FOLLOWING EIGHT COURSES: 1. SOUTH 29°30'00" WEST, 201.94 FEET 2 . SOUTH 3 5 ° 3 7 ' 0 0 " WEST, 2 4 9 . 8 0 FEET 3. SOUTH 45°08'00" WEST, 260.00 FEET 4. SOUTH 57°00' 00" 5. SOUTH 64°49'00" 6. NORTH 31°18'00" 7. NORTH 46°14'00" 8. NORTH 23°50' 00" Exhibit "A" Legal Description Phase 3 WEST, 260.00 FEET WEST, 165.00 FEET WEST, 348.00 FEET WEST, 306.00 FEET WEST, 250.00 FEET; THENCE CONTINUING ALONG SAID COMMON LINE AND THE NORTHERLY EXTENSION THEREOF, SAID EXTENSION BEING A COMMON LINE TO AN ANGLE POINT THER£IN; THENCE CONTINUING ALONG SAID COMMON LINE WITH THE HEREIN ABOVE DESCRIBED PARCEL 1 NORTH 00°10'02" WEST A DISTANCE OF 1800.00 FEET, TO AN ANGLE POINT AS DESCRIBED IN SAID DEED RECORDED JUNE 18, 1997 AS FILE NO. 1997-0282696 OF OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID LAND, SOUTH 88°57'08" EAST A DISTANCE OF 1300.00 FEET TO THE TRUE POINT OF BEGINNING AND SAID MOST EA.Q'T'ERLY SOUTHEAST CORNER. PARCSL 2: A NON-EXCLUSIVE EASEMENT TO CONSTRUCT, IMPROVE, USED AND MAINTAIN A ROADWAY OVER, UPON, THROUGH, AND ACROSS THAT PORTION OF LOT 71 OF LEISURE GLEN, IN THE CITY OF OCEANSIDE, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12495 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY NOVEMBER 8, 1989 DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 71 DISTANT NORTH 1°45 ' 0 0 11 WEST 3 7 6 . 6 9 FEET FROM THE MOST SOUTHERLY CORNER THEREOF; THENCE, CONTINUING ON SAID WESTERLY LINE, NORTH 1°45'14" WEST 115.00 FEET; THENCE LEAVING SAID WESTERLY LINE SOUTH 52°53'14" EAST 82.10 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 169. 00 FEET TO WHICH A RADIAL LINE BEARS NORTH 52°43'14" WEST; THENCE SOUTHWESTERLY 46.24 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15°40'39" TO THE BEGINNING OF A TANGENT COMPOUND CURVE CONCAVE EASTERLY HAVING A RADIUS OF 75.00 FEET TO WHICH A RADIAL LINE BEARS NORTH 68°23'53" WEST; THENCE SOUTHERLY 26.21 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 20°01'22"; THENCE SOUTH 01°34'45" WEST 36.92 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 155.00 FEET; THENCE SOUTHERLY 79.45 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 2 9 ° 2-2' 0 2"; THENCE SOUTH · 27°47'17" EAST 52.66 FEET TO THE BEGINNING OF TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 75. 00 FEET; THENCE SOUTHEASTERLY 15,93 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12°10'23" TO THE BEGINNING OF A TANGENT COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 19.00 FEET TO WHICH A RAD.IAL LINE BEARS SOUTH 50°02'20" WEST; THENCE EASTERLY 19.98 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 60°15' 00" TO THE SOUTHWESTERLY LINE OF SAID LOT 71 AND A POINT OF CUSP ON A CURVE CONCAVE WESTERLY HAVING A RADIUS OF 1948.00 FEET TO WHICH A RADIAL LINE BEARS SOUTH 68.0 25'01" EAST; THENCE SOUTHERLY 35.54 FEET ALONG SAID CURVE AND SOUTHWESTERLY LINE THROUGH A CENTRAL ANGLE OF 01°02'43" TO A POINT OF CUSP ON A CURVE CONCAVE Exhibit "A" Legal Description Phase 3 SOUTHWESTERLY HAVING A RADIUS OF 19.00 FEET TO WHICH A RADIAL LINE BEARS NORTH 54°37'23" EAST; THENCE, LEAVING SAID SOUTHWESTERLY LINE, NORTHWESTERLY 6.59 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 19°51'46" TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 101.00 FEET TO WHICH A RADIAL LINE BEARS SOUTH 34°45'37" WEST, SAID REVERSE CURVE IS CONCENTRIC WITH THE AFOREMENTIONED CURVE WHICH HAS A RADIUS OF 75. 00 FEET AND CENTRAL ANGLE OF 12°10'23"; THENCE NORTHWESTERLY 48.39 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 27 ° 27' 06"; THENCE NORTH 2 7°4 7' 1 7" WES i 52.66 FEET TO THE BEGINNING OF A TANGENT CURVE tONCAVE EASTERLY HAVING A RADIUS OF 181.00 FEET; THENCE NORTHERLY 92.77 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 2 9 ° 2 2' 0 2 11 ; THENCE NORTH O 1°34' 4 5 11 EAST 36.92 FEET; THENCE SOUTH 88°.15'00" WEST 7.93 FEET TO THE POINT OF BEGINNING. Exhibit B Reservation of Easement The Grantor, Paul K.Tchang, Trustee U/T/A June 16, 1978, as to an undivided 80% interest, and Carlsbad Oaks North Partners L.P., a California limited partnership, as to an undivided 20% interest, (collectively referred to as Grantor), as successor in interest to BA Properties Inc., a Delaware corporation, hereby reserves from the conveyance of the Property described in the attached Conservation Easement Agreement for the benefit of the Grantor and its successors and assigns, an easement for public street and public utility purposes in, over and upon a strip of land 102 feet in width within the Property (the "Road Easement Area"). Subject to the conditions set forth below, the Road Easement Area may be located anywhere within the Property. Grantor hereby further reserves the right to use those portions of the Property immediately adjacent to the Road Easement Area as may be reasonably required to construct, install, replace, repair, operate, maintain, inspect and use the Road Easement Area for the purposes described above (the "Adjacent Easement Area"); provided, however, in no event shall . the activities of Grantor or its successors and assigns pursuant to this reservation of easement result in ground disturbance activities on more than twenty (20) acres of the Property (the Road Easement Area and the Adjacent Easement Area are referred to collectively as the "Easement Area") Nothing contained herein shall be deemed to relieve any holder of the easement rights conferred herein who develops and constructs a public street within the Road Easement Area from its obligations to mitigate the impacts of its activities to the extent required by applicable law, including, without limitation, to mitigate for the loss of any mitigation lands within the Easement Area acknowledged as Conservation Credits pursuant to that certain Implementation Agreement between BA Properties Inc., the California Department of Fish and Game, and the United States Fish and Wildlife Service dated April 5, 1995, and assigned to Grantor pursuant to that Assignment from BA Properties Inc. to Grantor dated January 9, 1996. EXHIBIT "C" PERMITTED TITLE EXCEPTIONS 1. An easement for above or below ground utilities and/or guy poles and anchors and purposes incidental thereto, as granted to the San Diego Gas and Electric Company, in recorded April 27, 1960 as File No. 86316 of Official Records. The location of said easement is more fully described in said document. Reference is made to said instrument for further particulars. 2. An easement for locating, relocating, constructing, reconstructing, maintaining, operating, inspecting and repairing a pipeline or pipelines, and all fixtures and appurtenances incidental thereto for use in connection therewith, for the transmission and distribution of water and all uses and purposes incidental thereto together with the right of ingress thereto and egress therefrom, to and along said right of way, together with the right to clear and keep clear and keep clear said right of way from buildings, structures, explosives, trees, and other materials or growths detrimental to the uses herein and incidental purposes, in favor of San Diego County Water Authority, in instrument recorded October 29, 1976 as File No. 76-361824 of Official Records. Reference is made to said instrument for full particulars. The location of said easement is set forth in said instrument. 3. An easement for underground water pipeline, roadway, and incidental purposes in favor of San Diego County Water Authority, in instrument recorded November 6, 1979 as File No. 79-509360 of Official Records. Reference is made to said instrument for full particulars. The location of said easement is set forth in said instrument. 4. An Agreement regarding CONSENT TO USE IN COMMON executed by and between BA Properties, Inc. and San Diego Gas and Electric Company, upon the terms, covenants, and conditions contained therein, recorded August 11, 1994 as File No. 1994-0488545 of Official Records. Reference is made to said instrument for full particulars. .. EXHIBIT "C" PERMITTED TITLE EXCEPTIONS 1. An easement for above or below ground utilities and/or guy poles and anchors and purposes incidental thereto, as granted to the San Diego Gas and Electric Company, in recorded April 27, 1960 as File No. 86316 of Official Records. The location of said easement is more fully described in said document. Reference is made to said instrument for further particulars. 2. An easement for locating, relocating, constructing, reconstructing, maintaining, operating, inspecting and repairing a pipeline or pipelines, and all fixtures and appurtenances incidental thereto for use in connection therewith, for the transmission and distribution of water and all uses and purposes incidental thereto together with the right of ingress thereto and egress therefrom, to and along said right of way, together with the right to clear and keep clear and keep clear said right of way from buildings, structures, explosives, trees, and other materials or growths detrimental to the uses herein and incidental purposes, in favor of San Diego County Water Authority, in instrument recorded October 29, 1976 as File No. 76-361824 of Official Records. Reference is made to said instrument for full particulars. The location of said easement is set forth in said instrument. 3. An easement for underground water pipeline, roadway, and incidental purposes in favor of San Diego County Water Authority, in instrument recorded November 6, 1979 as File No. 79-509360 of Official Records. Reference is made to said instrument for full particulars. The location of said easement is set forth in said instrument. 4. An Agreement regarding CONSENT TO USE IN COMMON executed by and between BA Properties, Inc. and San Diego Gas and Electric Company, upon the terms, covenants, and conditions contained therein, recorded August 11, 1994 as File No. 1994-0488545 of Official Records. Reference is made to said instrument for full particulars. Exhibit "A" Legal Description Phase 3 THE LAND REFERRED TO HEREIN IS SITUATED IN THE -STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: THAT PORTION OF LOT D OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIF6RNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED IN A GRANT DEED ("DEED") TO CARLSBAD DEVELOPMENT COMPANY PER FILE NO. 87-326049, RECORDED JUNE 12, 1987, IN THE OFFICE OF SAID COUNTY RECORDER, DES2RIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT L; THENCE SOUTH 00°16'53" WEST (SOUTH 00°22'22" WEST, DEED), A DISTANCE OF 660.00 FEET; THENCE SOUTH 89°39'31" WEST, PARAi,LEL WITH THE SOUTHERLY LINE OF .SAID LOT L, A DISTANCE OF 2555. 01 FEET (SOUTH 89°36' WEST 2549. 26 FEET, DEED), TO A POINT IN A LINE WHICH IS PARALLEL WITH AND 89.92 FEET EASTERLY FROM THE SOUTHERLY PROLONGATION OF THE WESTERLY LINE OF SAID LOT L; THENCE NORTH 76°18'18" EAST (NORTH 76°24' EAST, DEED), A DISTANCE OF 1925.00 FEET; THENCE NORTH 41°57'03" EAST (NORTH 41°54'35" EAST. DEED) A DISTANCE OF 1027.32 FEET TO A POINT IN THE EAST LINE OF SAID LOT L SAID POINT BEING THE MOST NORTHERLY CORNER OF THAT PORTION OF SAID LOTS D AND L GRANTED TO THE STATE OF CALIFORNIA ("STATE") BY DEED RECORDED JANUARY 6, 1995, AS DOCUMENT NO. 1995-0005894 OF OFFICIAL RECORDS; THENCE NORTH O O 16' 53" EAST A DISTANCE OF 745. 00 FEET (NORTH 0°16' 53" EAST, 745 .17 DEED) 'I'O THE WESTERLY TERMINUS OF THE NORTHERLY LINE OF SAID CARLSBAD DEVELOPMENT COMPANY LAND; THENCE ALONG SAID NORTHERLY LINE, SOUTH 88°57'08 11 EAST A DISTANCE OF 2660.58 FEET (SOUTH 88°54'31" EAST, 2660.50, DEED), TO THE NORTHEAST CORNER THEREOF, SAID CORNER BEING A POINT IN THE EAST LINE OF SAID LOT D; THENCE ALONG SAID EAST LINE, SOUTH 00°10' 02" EAST (SOUTH 0°07' 35" EAST, DEED) A DISTANCE OF 599.99 FEET; TO THE TRUE POINT OF BEGINNING; SAID POINT ALSO BEING THE MOST EASTERLY SOUTHEAST CORNER OF LAND CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED JUNE 18, 1997 AS FILE NO. 1997-0282696, OF OFFICIAL RECORDS; THENCE CONTINUING ALONG SAID EAST LINE, SOUTH 00°10'02" EAST A DISTANCE OF 1740.01 FEET TO THE NORTHERLY TERMINUS OF THE EAST LINE OF THE LAND DESCRIBED IN CONSERVATION EASEMENT AGREEMENT RECORDED FEBRUARY_ 24, 1995 AS DOCUMENT NO. 1995-0081433, OFFICIAL RECORDS; THENCE ALONG A roMMON LINE WITH SAID LAND THE FOLLOWING EIGHT COURSES: 1. SOUTH 29°30' 00" WEST, 201. 94 FEET 2 . SOUTH 3 5 ° 3 7' 0 0 11 WEST, 2 4 9 . 8 0 FEET 3 . SOUTH 4 5 ° 0 8 ' 0 0 11 WEST, 2 6 0 . 0 0 FEET 4. SOUTH 57°00'00" 5. SOUTH 64°49'00" 6. NOR.TH 31°18'00" 7. NORTH 46°14'00" 8. NORTH 23°50' 00" Exhibit "A'' Legal Description Phase 3 WEST, 260.00 FEET WEST, 165.00 FEET WEST, 348.00 FEET WEST, 306.00 FEET WEST, 250.00 FEET; THENCE CONTINUING ALONG SAID COMMON LINE AND THE NORTHERLY EXTENSION THEREOF, SAID EXTENSION BEING A COMMON LINE TO AN ANGLE POINT THERBIN; THENCE CONTINUING ALONG SAID COMMON LINE WITH THE HEREIN ABOVE DESCRIBED PARCEL 1 NORTH 00°10' 02" WEST A DISTANCE OF 1800. 00 FEET, TO AN ANGLE POINT AS DESCRIBED IN SAID DEED RECORDED JUNE 18, 1997 AS FILE NO. 1997-0282696 OF OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID LAND, SOUTH 88°57'08" EAST A DISTANCE OF 1300.00 FEET TO THE TRUE POINT OF BEGINNING AND SAID MOST EAS:ERLY SOUTHEAST CORNER. PARCSL 2: A NON-EXCLUSIVE EASEMENT TO CONSTRUCT, IMPROVE, USED AND MAINTAIN A ROADWAY OVER, UPON, THROUGH, AND ACROSS THAT PORTION OF LOT 71 OF LEISURE GLEN, IN THE CITY OF OCEANSIDE, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12495 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY NOVEMBER 8, 1989 DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 71 DISTANT NORTH 1 ° 4 5' 0 0" WEST 3 7 6 . 6 9 FEET FROM THE MOST SOUTHERLY CORNER THEREOF; THENCE, CONTINUING ON SAID WESTERLY LINE, NORTH 1°45'14" WEST 115.00 FEET; THENCE LEAVING SAID WESTERLY LINE SOUTH 52°53'14" EAST 82.10 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 169.00 FEET TO WHICH A RADIAL LINE BEARS NORTH 5 2 ° 4 3 ' 14 11 WEST; THENCE SOUTHWESTERLY 4 6 . 2 4 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15°40'39" TO THE BEGINNING OF A TANGENT COMPOUND CURVE CONCAVE EASTERLY HAVING A RADIUS OF 75.00 FEET TO WHICH A RADIAL LINE BEARS NORTH 68°23'53" WEST; THENCE SOUTHERLY 26.21 FEET 1\LONG SAID CURVE THROUGH l\ CENTRAL A."t\JGLE OF 2 0 ° 0 l' 2 2" ; THENCE SOUTH 01°34'45 11 WEST 36.92 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 155.00 FEET; THENCE SOUTHERLY 79.45 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 29°2·2' 02"; THENCE SOUTH 27°47'17" EAST 52.66 FEET TO THE BEGINNING OF TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 75. 00 FEET; THENCE SOUTHEASTERLY 15.93 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12°10'23" TO THE BEGINNING OF A TANGENT COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 19.00 FEET TO WHICH A RADIAL LINE BEARS SOUTH 50°02'20" WEST; THENCE EASTERLY 19.98 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 60°15' 00" TO THE SOUTHWESTERLY LINE OF SAID LOT 71 AND A POINT OF CUSP ON A CURVE CONCAVE WESTERLY HAVING A RADIUS OF 1948.00 FEET TO WHICH A RADIAL LINE BEARS SOUTH 6i;l 0 25'01" EAST; THENCE SOUTHERLY 35.54 FEET ALONG SAID CURVE AND SOUTHWESTERLY LINE THROUGH A CENTRAL ANGLE OF 01°02'43" TO A POINT OF CUSP ON A CURVE CONCAVE Exhibit "A" Legal Description Phase 3 SOUTHWESTERLY HAVING A RADIUS OF 19.00 FEET TO WHICH A RADIAL LINE BEARS NORTH 54°37'23" EAST; THENCE, LEAVING SAID SOUTHWESTERLY LINE, NORTHWESTERLY 6.59 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 19°51'46" TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 101.00 FEET TO WHICH A RADIAL LINE BEARS SOUTH 34°45'37" WEST, SAID REVERSE CURVE IS CONCENTRIC WITH THE AFOREMENTIONED CURVE WHICH HAS A RADIUS OF 75. 00 FEET AND CENTRAL ANGLE OF 12°10'23"; THENCE NORTHWESTERLY 48.39 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 2 7 ° 2 7' 0 6 " ; THENCE NORTH 2 7 ° 4 7' 1 7" WES i 52.66 FEET TO THE BEGINNING OF A TANGENT CURVE tONCAVE EASTERLY HAVING A RADIUS OF 181.00 FEET; THENCE NORTHERLY 92.77 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 2 9 ° 2 2 I O 2 II i THENCE NORTH O 1°34 ' 4 5 II EAST 36. 92 FEET; THENCE SOUTH 88°15' 00" WEST 7. 93 FEET TO THE POINT OF BEGINNING. ... Exhibit "B" Reservation of Easement The Grantor, Paul K.Tchang, Trustee U/T/A June 16, 1978, as to an undivided 80% interest, and to Carlsbad Oaks North Partners L.P., a California limited partnership, as to an undivided 20% interest, (Grantor), as successor in interest to BA Properties Inc., a Delaware corporation, hereby reserves from the conveyance of the Property described in the attached Grant Deed for the benefit of the Grantor and its successors and assigns, an easement for public street and public utility purposes in, over and upon a strip of land 102 feet in width within the Property (the "Road Easement Area"). Subject to the conditions set forth below; the Road Easement Area may be located anywhere within the Property. Grantor hereby further reserves the right to use those portions of the Property immediately adjacent to the Road Easement Area as may be reasonably required to construct, install, replace, repair, operate, maintain, inspect and use the Road Easement Area for the purposes described above (the "Adjacent Easement Area"); provided, however, in no event shall the activities of Grantor or its successors and assigns pursuant to this reservation of easement result in ground disturbance activities on more than twenty (20) acres of the Property (the Road Easement Area and the Adjacent Easement Area are referred to collectively as the "Easement Area") Nothing contained herein shall be deemed to relieve any holder of the easement rights conferred herein who develops and constructs a public street within the Road Easement Area from its obligations to mitigate the impacts of its activities to the extent required by applicable law, including, without limitation, to mitigate for the loss of any mitigation lands within the Easement Area acknowledged as Conservation Credits pursuant to that certain Implementation Agreement between BA Properties Inc., the California Department of Fish and Game, and the United States Fish and Wildlife Service dated April 5, 1995, and assigned to Grantor pursuant to that Assignment from BA Properties Inc. to Grantor dated January 9, 1996. Subdivider: Techbilt Construction Corp., a California Corporation. By: Paul K. Tchang, President Owner: Carlsbad Oaks North Partners, L.P., a California Limited Partnership By: Sun Tech Investments Corp., a California Corporation, General Partner By: Paul K. Tchang, President ARTICLE I I. I 1.2 1.3 1.4 1.5 1.6 I. 7 1.8 1.9 I.IO I. 11 1.12 1.13 1.14 I. 15 1.16 1.17 I. 18 1.19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31 1.32 1.33 1.34 1.35 1.36 1.37 1.38 1.39 1.40 1.41 1.42 12230 TABLE OF CONTENTS DEFINITIONS ................................................................................................. I "Annexation Property" ...................................................................................... I "Annexed Property" .......................................................................................... 2 "Architectural Committee" ................................................................................ 2 "Applicant" ....................................................................................................... 2 "Architectural and Landscape Standards" .......................................................... 2 "Articles" .......................................................................................................... 2 "Assessment" .................................................................................................... 2 "Association" .................................................................................................... 2 "BMPs" ............................................................................................................ 2 "Board" ............................................................................................................. 2 "Budget" ........................................................................................................... 2 "Building" ......................................................................................................... 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 "Laws" .............................................................................................................. 6 "Lessee" ............................................................................................................ 6 "Lot" ........................................................... : ..................................................... 6 "M. dO • A " 6 amtenance an pera!lon ccount ............................................................ . "Member" ......................................................................................................... 6 600000. I I/SD T8483.006/I. J6--07/cbs/slt (i) 12231 1.43 "Mortgage" ....................................................................................................... 6 1.44 "Mortgagee" ..................................................................................................... 6 1.45 "Net Acreage" ................................................................................................... 6 1.46 "Occupant" ....................................................................................................... 6 1.47 "Open Space Preserve Grant of Easements" ..................................................... 6 1.48 "Open Space Preserve Lots" ............................................................................. 6 1.49 "Owner" ............................................................................................................. 6 1.50 "Person" ............................................................................................................ 7 1.51 "Plans" .............................................................................................................. 7 1.52 "Preliminary Plan" ............................................................................................ 7 1.53 "Project Approvals" .......................................................................................... 7 1.54 "Property" ......................................................................................................... 7 1.55 "Record" ........................................................................................................... 7 1.56 "Regular Assessment" ....................................................................................... 7 1.57 "Required Landscape Setback Area" ................................................................. 7 1.58 "Reserve Account" ............................................................................................ 7 1. 59 "Rules and Regulations" ................................................................................... 7 1.60 "Special Assessment" ........................................................................................ 7 1.61 "Specific Plan" .................................................................................................. 7 1.62 "Settlement Monuments" .................................................................................. 7 1.63 "Supplemental Declaration" ............................................................................. 8 1.64 "SWPPP" .......................................................................................................... 8 1.65 "Tentative Map" ............................................................................................... 8 1.66 "Tentative Map Property" ................................................................................ : 8 ARTICLE 2 THE ASSOCIATION ....................................................................................... 8 2.1 Organization ..................................................................................................... 8 2.2 Duties of Association ....... : ............................................................................... 8 2.2.1 Assessments .......................................................................................... 8 2.2.2 Common Areas ..................................................................................... 8 2.2.3 Discharge of Liens ................................................................................ 8 2.2.4 Insurance ............................................................................................... 8 2.2.5 Payment ofExpenses ............................................................................. 9 2.3 Powers of Association ....................................................................................... 9 2.3.1 Acquisition of Property ......................................................................... 9 2.3.2 Assessments; Liens ............................................................................... 9 2.3.3 Borrowing ............................................................................................. 9 2.3.4 Contracts ............................................................................................... 9 2.3.5 Delegation ............................................................................................. 9 2.3.6 Enforcement. ......................................................................................... 9 2.3.7 Manager .............................................................................................. 10 2.3.8 Security Services ................................................................................. 10 2.3.9 Rules and Regulations ......................................................................... 10 2.3.10 Variances ............................................................................................ 10 2.4 Board of Directors .......................................................................................... 10 2.4.1 Initial Board ........................................................................................ 10 600000.l l/SD T8483--006/l-16--07/cbs/slt (ii) 12232 2.4.2 Subsequent Board ................................................................................ 10 2.4.3 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 .................................................................. 11 2.6.3 Approvals and Consents ...................................................................... 12 2.7 Annual Membership Meetings ........................................................................ 12 2.8 Personal Liability ............................................................................................ 12 ARTICLE 3 IMPROVEMENT STANDARDS AND RESTRICTIONS .............................. 13 3.1 General ........................................................................................................... 13 3.2 Architectural and Landscape Standards ........................................................... 13 3.3 Net Acreage Determination ............................................................................. 13 3.4 Maintenance of Lots ....................................................................................... 14 3.5 Undergrounding of Utility Lines ..................................................................... 14 3.6 Maintenance of Drainage Facilities ................................................................. 14 3.7 Subdivision of Lots ......................................................................................... 14 3.8 Landscaping Maintenance District .................................................................. 14 3.9 Participation of Owners in Required Programs ................................................ 15 3. 10 Outdoor Storage .............................................................................................. 15 3.11 Sight Distance Corridors ................................................................................. 15 3.12 Invasive Plants ................................................................................................ 15 ARTICLE 4 ARCHITECTURAL REVIEW ...................................................................... : 15 4.1 Architectural Committee ................................................................................. 15 4.1.1 Organization; Members ....................................................................... 15 4.1.2 Duties .................................................................................................. 16 4.2 Approval Required .......................................................................................... 16 4.3 Basis for Disapproval. ..................................................................................... 16 4. 4 Approval Procedure ........................................................................................ 18 4.4.1 Submission of Preliminary Plan ........................................................... 18 4.4.2 Approval of Preliminary Plan .............................................................. 18 4.4.3 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 Commencementoflmprovements ....................................................... 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 600000.11 /SD T8483-006/J. J6--07/ebs/slt (iii) 4.11 4.12 ARTICLE 5 5.1 5.2 5.3 5.4 12233 Submission of Plans to City or Government .................................................... 22 Compliance With Governmental Regulations .................................................. 22 REGULATION OF USES .............................................................................. 22 Permitted Uses ................................................................................................ 22 Prohibited Uses ............................................................................................... 22 Settlement Monitoring Equipment Program and Easements ............................ 23 Hazardous Materials ....................................................................................... 23 5.4.1 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 6.2 6.3 6.4 6.5 6.6 6.7 ARTICLE 7 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 6. I. I General ............................................................................................... 24 6.1.2 Maintenance Activities ........................................................................ 24 6.1.3 Maintenance of Drainage and Pollution Control Facilities ................... 25 Maintenance by Lot Owners ........................................................................... 25 6.2.1 Extraordinary Maintenance or Repair ...................... : ........................... 25 6.2.2 Required Landscape Setback Areas ..................................................... 26 6.2.3 Compliance With SWPPP ................................................................... 26 Authority to Contract ...................................................................................... 26 Permitted Transfers of Common Areas ........................................................... 26 6.4.1 To the City or Other Public Agency ..................................................... 26 6.4.2 To the Association ............................................................................... 26 Destruction, Restoration .................................................................................. 26 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 Open Space Preserve Grant of Easements ....................................................... 28 EASEMENTS ................................................................................................. 29 Easements Over Common Areas ..................................................................... 29 Reservation of Easement Over Lots and Common Area .................................. 29 Entry on Common Areas ................................................................................. 29 Utility Easement ............................................................................................. 30 Reservation of Easement Over Lots ................................................................ 31 Drainage Easement ......................................................................................... 31 Emergency Vehicle Access ............................................................................. 31 Signage Easements ......................................................................................... 31 Dominant and Servient Estates ........................................................................ 31 600000. l I /SD TI483--006/l-16-07/cbs/slt (iv) ARTICLE 8 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 ARTICLE 9 9.1 9.2 9.3 122:34 FUNDS AND ASSESSMENTS ...................................................................... 31 Creation of the Lien and Personal Obligation of Assessments ......................... 31 No Exemptions ............................................................................................... 32 Purpose of Assessments .................................................................................. 32 Regular 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 Special Assessments ....................................................................................... 33 8.5.1 Types .................................................................................................. 33 8.5.2 Establishment. ..................................................................................... 33 8.5.3 Allocation ........................................................................................... 33 Certificate of Payment .................................................................................... 34 Due Dates; No Offsets .................................................................................... 34 Delinquent Assessments; Liens ....................................................................... 34 Deposit of Funds ............................................................................................. 34 Transfer ofLot. ............................................................................................... 34 OWNER'S INSURANCE ............................................................................... 35 Right and Duty of Owners to Insure ................................................................ 35 Notice of Expiration ........................................................................................ 35 Destruction of Owner's Building or Other Structures ....................................... 35 ARTICLE 10 ENFORCEMENT ........................................................................................... 35 IO. I Violation a Nuisance ....................................................................................... 35 10.2 General Remedies ........................................................................................... 35 10.3 10.4 10.5 10.6 10.7 ARTICLE 11 11.1 11.2 10.2.1 Right to Enforce .................................................................................. 35 I 0.2.2 Inspection; Abatement by Declarant, Association ................................ 36 10.2.3 Owner's Remedies .................................................................... : .......... 36 Collection of Assessments; Liens .................................................................... 36 10.3.1 Right to Enforce .................................................................................. 36 10.3.2 Creation of Lien .................................................................................. 37 10.3.3 Notice of Default; Foreclosure ............................................................. 37 10.3.4 Subordination of the Lien to First Mortgages ....................................... 37 Interest... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7 Attorneys' Fees ..... : ......................................................................................... 37 Cumulative Remedies; No Waiver .................................................................. 38 Effect of Foreclosure ...................................................................................... 38 TERM; AMENDMENTS ............................................................................... 38 Term ............................................................................................................... 38 Amendments ................................................................................................... 38 ARTICLE 12 ANNEXATION OF ADDITIONAL PROPERTY .......................................... 39 600000.11/SD T8483-00611-16-07 /cbs/slt (v) 12235 12.1 Right to Annex ............................................................................................... 39 12.2 Effect of Annexation ....................................................................................... 39 12.2.1 Rights of Owners ................................................................................ 39 12.2.2 Assessments ........................................................................................ 39 12.2.3 Supplemental Restrictions ................................................................... 40 12.3 Declarations of Annexation ............................................................................. 40 ARTICLE 13 GENERAL PROVISIONS .............................................................................. 40 13.1 Assignment ofDeclarant's Rights and Duties .................................................. 40 13.2 Common Interest Subdivision ......................................................................... 41 13.3 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 Heai:lings ......................................................................................................... 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 EXHIBITB EXHIBIT C EXHIBITD EXHIBITE Legal Description of Property Map of Tentative Map Property Map of Initial Common Areas Net Acreage Schedule Invasive Plant List 600000 .11 /SD T8483JJ06/l -16-07 /ebs/slt (vi) 12237 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 Dedaration. 1.3 "Architectural Committee" means the Architectural Committee created pursuant to Section 4 .1. I .4 "Applicant" is defined in Section 4.4.1. 1.5 "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. I. 6 "Articles" 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. I. 7 "Assessment" 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 corporation, 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. 1.9 "BMPs" is defined in Section 6.1.3. I. IO "Board" or "Board of Directors" means the Board of Directors of the Association, as the same may be constituted from time to time. 1.11 "Budget" is·defined in Section 8.4.1. 1.12 "Building" 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. I. 14 "Bylaws" means the Bylaws of the Association, as amended and supplemented from time to time. I. 15 "Certificate of Pavment" is defined in Section 8.6. I. 16 "City" means the City of Carlsbad, California. 600000.11/SD T848J-006/l-31.07/cbs/slt -2- 12238 I. 17 "CNLM" 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; (f) Mini-park sites identified on the Tentative Map, including a site within Common Area Lot 9 and a site within Open Space Preserve Lot 11; (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 the 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 focation or configuration of the 600000.11/SD T8483-006/l-16--07/cbs/slt -3- 12239 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. • 1.20 "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 oflmprovements and the cost of utilities, irrigation, gardening and other services; (c) Exercising.the Association's rights and performing its obligations under· the Open s·pace 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; (f) Exercising the powers and performing the duties of the Association and the Board under this Declaration and the other 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." 1.21 "Construction Drawings" is defined in Section 4.4.3. 1.22 "County" means the County of San Diego, California. 1.23 "Davis-Stirling Common Interest Development Act" means California Civil Code Section 1350 et seq .. as amended from time to time. 1.24 "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 party as a successor Declarant and assigns the rights and duties of Declarant hereunder. 600000.11/SD T8483-006/J . J 6.07 /cbs/slt -4- 12240 1.25 "Declaration" means this Declaration of Covenants, Conditions, Covenants and Restrictions for Carlsbad Oaks North Business Park, as amended or supplemented from time to time. 1.26 "Declaration of Annexation" is defined in Section 12.3. 1.27 "Events of Foreclosure" is defined in Section 10.7 hereof. 1.28 "Final Map" 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 ofRecordation 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. 1.29 "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. 1.30 "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 "[mprovements" means Buildings, accessory structures, underground installations, slope and grade alterations, roads, curbs, driveways, gu~rs, 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. 1.32 "Invasive Plants" is defined in Section 3.12. 1.33 "Kilroy" means Kilroy Realty Finance Partnership, L.P., a Delaware limited partnership. 1.34 "Kilroy 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. 1.35 "Kilroy 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. 1.36 600000.11/SD T8483-006/l -3 l -07/cbs/slt "Landscaping Maintenance District" is defined in Section 3.8. -5- 12241 1.37 "Landscape Setback Expenses" 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 thereon, whether now in effect or subsequently enacted, as amended and supplemented from time to time. 1.39 "Lessee" means the owner ofa leasehold interest in all or a portion of the Business Park. 1 .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 ofRecordation of this Declaration are legally described on Exhibit A and depicted on Exhibit B. 1.41 "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 pursuant to Section 2.5. 1.43 "Mortgage" means any duly Recorded mortgage or deed of trust encumbering a Lot. A "First Mortgage" means a Mortgage that has priority over any other Mortgage encumbering a Lot. 1.44 "Mortgagee" means the mortgagee or.beneficiary under any Mortgage. A "First Mortgagee" means the holder of a First Mortgage. 1.45 "Net Acreage" 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. 1.46 "Occupant" means any Person who has the legal right to occupy a portion of the Property and is not an Owner or Lessee. I. 4 7 "Open Space Preserve Grant of Easements" is defined in Section 6. 7. 1.48 "Open 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. 1.49 "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 600000.11/SD T8483-006/l-l 6--07 /cbs/slt -6- 12242 excluding those having or holding any such interest merely as security for the performance 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 "Person" means a natural person, a corporation, a partnership, a trustee, or other legal entity. 1.51 "Plans" is defined in Section 4.8. 1.52 "Preliminary Plan" is defined in Section 4.4.1. 1.53 "Project Approvals" is defined in Section 6.6.5. I. 54 "Property" means the real property legally described in Exhibit /1, 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, California. 1.56 "Regular Assessment" is defined in Section 8.4. I. 5 7 "Required 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 6.2.2. 1.58 "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 Regulations" means those Rules and Regulations prepared by Declarant to regulate the use, operation, management and maintenance of the Property, as further described in Section 2.3.9, as amended and supplemented by the Board. 1.60 "Special Assessment" is defined in Section 8.6. 1.61 "Specific 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 "Settlement Monuments" is defined in Section 5.3. 600000.11/SD T8483-006/l-lUJ7/cbs/slt -7- 12243 1.63 "Supplemental Declaration" means a supplement to this Declaration as permitted under this Declaration, which; when Recorded, shall have the same force and effect as the terms of this Declaration. 1.64 "SWPPP" is defined in Section 6.1.3. 1.65 "Tentative Map" 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. 1.66 "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 4.5.3. ARTICLE 2 THE ASSOCIATION 2. I Organization. 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: 2.2.1 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. 2.2.3 Discharge 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 shall 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 Association, and the opportunity to be heard 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; 600000.11/SD T8483-006/l -16-07 /cbs/slt -8- 12244 (b) commercial general liability insurance in the amount of at least One Million Dollars ($1,000,000) 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' errors 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 Payment of Expenses. 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 Property. The Association shall have the power to acquire (by gift, purchase or otherwise), own, hold, 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 I 0. 2.3.3 Borrowing. 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 affirmative 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 Declarant 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 Delegation. 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. 600000.11/SD T8483-006/1-t 6-07 /ebs/slt -9- 12245 2.3.7 Manager. 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 (I) 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 ofDeclarant 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, security 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. IO 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 difficulties 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 Perso_n or property. 2.4 Board of Directors. 2.4.1 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(!) 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 of Members, 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 (I) 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. 600000.11/SD T8483-00611-31-07/cbs/slt -IO- 12246 2.4.3 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 Declaration, the Bylaws and the Articles. 2.5 Association Membership. 2.5.1 Appurtenant to Lot Ownership. 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 the 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. 2.5.2 Transfer of Association Membership. 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 membership interests on the books and records of the Association. 2.6 Voting Rights. 2.6.1 Sole Voting Rights ofDeclarant. 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 entitled 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. 2.6.2 Voting Rights 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: 600000.1 l!SD T8483-006/J -16-07 /cbs/slt -11- 12247 (a) Each Owner, but excluding Declarant for so long as the Class B Membership is in effect, shall be a Class A Member and shall have one (I) 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. Declarant's 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 Approvals 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 ofa 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 tq 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 Membership Meetings. The Board may call the first annual meeting of Members at any time, but in no event later than sixty (60) days after the earlier 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 Liability. 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. 600000.11/SD T8483-006/l -16-07 /ebs/slt -12- 1224'8 ARTICLE3 fMPROVEMENT 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 pursuant to 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 Planbut 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 fifty 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 Determination. The Net Acreages set forth in Exhibit D have been determined by Declarant 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 Dor 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 Lots 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 agreement 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 Board) 600000.11/SD T8483.006/l -31-07/cbs/slt -13- 12249 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 11.2 below, any such supplement to this Declaration 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 Undergrounding of Utility Lines. All electrical, telephone, cable and any other public or private utility lines within the Property shall be placed underground. 3.6 Maintenance of Drainage Facihties. 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 alternative provision is made for proper drainage and is first approved in writing by the Architectural Committee and the City. 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 Landscaping 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. I ("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 Property 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 600000.11/SD T8483-00611-3 I -07 /ebs/slt -14- 12250 and Owner to reimburse the Association for such payment and its costs associated with such payment. 3.9 Participation of Owners in Required Programs. Declarant and/or the Association are 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 program. 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 governmental entity. 3. JO Outdoor Storage. No outdoor storage of materials, except as allowed by the Specific Plan, shall be permitted unless required by the City'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. 3.11 Sight 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 corridor in accordance with City Standard Public Street-Design Criteria, Section 8.B.3. Each Owner shall maintain this condition on its Lot. 3.12 Invasive Plants. No Invasive Plants shall be permitted on any Lot. "Invasive Plants" means those species listed in the CalEPPC List of Exotic Pest Plants of Greatest Ecological 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 oflnvasive Plants; (b) shall pay the costs ofremoving 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 Architectural Committee. 4.1.1 Organization; Members. An Architectural Committee consisting of not less than three (3) Persons ("Committee Members") shall be established to conduct architectural review pursuant to this Article 4. Until such time as the Association is formed, 600000.11/SD T8483-006/J • J 6-07 /cbs/slt -15- 12251 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 (I) 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(!) 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. duties: 4.1.2 Duties. The Architectural Committee shall have the following (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) this Declaration. To perform all other duties delegated to and imposed upon it by 4.2 Approval Reguired. 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, including 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. Declarant's affiliated companies shall be any entities which Declarant in writing designates as affiliates from time to time. 4.3 Basis for Disapproval. The Architectural Committee may disapprove any and all plans and specifications submitted hereunder based upon any of the following: 600000.11/SD T8483 .006/J • J 6-07 /cbs/slt -16- 1225'2 (a) Failure to comply with any of the provisions of this Declaration, including the Architectural and Landscape Standards; (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 oflandscape design or materials with street landscaping, existing or proposed landscaping approved by the Architectural Committee for other Lots, or the Architectural and Landscape Standards; (f) 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; U) 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 Park 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. 600001l ll /SD T8483--006/I. J6--07/cbs/slt -17 - 12253 4.4 Approval Procedure. 4.4.1 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 4.2. 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 architectural 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 areas, setbacks, driveways, parking areas, walkways, landscaped areas, storage areas, and refuse areas; (b) A drainage and grading plan; ( c) A sign plan; ( d) A landscaping plan; (e) A lighting plan; (f) 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 Approval of Preliminary 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 requires 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 6.2.2. 4.4.3 Submission of Construction Drawings. After approval of the Preliminary Plan, and prior to the commencement of any activity which requires approval pursuant to Section 4.2, 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 600000.11 /SD T8483-006/l-I6-07/ebs/slt -18- 12254 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 Maximum Building Area for such Lot. 4.4.4 Approval of Construction Drawings. 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 City. 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 I 5-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 Proceeding With Work. 4.5.1 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 (I) 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 4.5.3 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. 4.5.2 Completion. Improvements approved by the Architectural Committee shall be completed within one(!) 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. 600000.11/SD T8483-006/l -16-07 /cbs/slt -19- 12.255 4.5.3 Unavoidable Events. Ifan 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) year. 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 Approval Certificate. Within fifteen (15) business days after delivery of a written request therefor and provided any fee required pursuant Section 4.4.5 has been paid, the Architectural Committee shall 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 certificate 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 imm_ediately 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 Nonliability for Approval of Plans. Declarant, the Association, the Board, the 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 600000.11/SD T8483-006/1-J6-07/cbs/slt -20- 12256 Preliminary Plan, Construction Drawings, or other plans, specifications, drawings or documents (collectively, "Plans") submitted for approval pursuant to this Article 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 (including reasonable attorneys' fees) suffered or claimed by any Person on account of any of the matters described-above in this Section. Each Per~on 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 Approvals 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 Declarant 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 Declarant, the Architectural Committee or any Committee Member based on any conflict of interest based upon such relationship. 4.10 Appeal. 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 than 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 Board 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. 600000 .11 /SD T8483-006/I -I 6-07 /cbs/slt -21- 12257 4. 11 Submission of Plans to City or Government. Plans shall be submitted to • the Architectural Committee pursuant to this Article prior to or concurrently 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 writi'ng, 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 governmental entity 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 granting or withholding of its consent to any use pursuant to this Section 5.1, 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 parks, or recreational vehicle campgrounds; junk yards; commercial mining or quarry 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, offal, dead animals or refuse; stockyards and slaughter of animals; refining of petroleum or of its prodµcts; smelting of iron, tin, zinc or other ores; cemeteries; jails and honor farms; labor camps and migrant worker camps; petroleum storage yards or any activity which results in the release, disposal or discharge of Hazard.ous Materials on the Property; and/or any use which would be offensive by reason of odor, fumes, dust, smoke, noise or pollution or hazardous 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. 600000.11 /SD T8483-006/l. J 6-07/ebs/slt -22- 12258 5.3 Settlement Monitoring Equipment 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 Declarant 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 Settlement 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 ofa 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, opera.le 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 currently adopted fire code at quantities that exceed the exempt amount as defined in the most currently 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 California Health and Safety Code 25532(g) shall prepare an offsite consequence analysis ("OCA"). The analysis shall be performed in accordance with Title 19 of the California 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. 600000.11 /SD • T8483-006/1-16-07/ebs/slt -23- 12259 5.4.2 Duty To Notify. Each Owner shall immediately notify the Board of any of the following with respect to such Owner's 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 party 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 governing the use, handling, storage, generation treatment, transport, release or disposal of Hazardous Materials. ARTICLE 6 MAINTENANCE AND USE OF COMMON AREAS 6.1 Maintenance Responsibilities of Association. 6.1.1 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 continue 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: 600000.l l/SD T8483.006/1-16.07/cbs/slt -24- 12260 (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 within the Common Areas ( other than signs installed by an Owner as permitted hereunder); and (f) Maintaining, repairing and replacing all 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 Drainage and Pollution 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, including the use of best management practices ("BMPs") in accordance with City regulations to reduce surface pollutants to an acceptable level prior to discharge to sensitive areas. 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. 6.2 Maintenance by 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 Board 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 governmental 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' 600000.11/SD T8483-006/J. J6--07/cbs/slt -25- 12261 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. 6.2.2 Required Landscape 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 hydrocarbon compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood preservatives, and other such fluids shall not be discharged into any street, public or private, or into storm drain or storm water conveyance systems. Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers and other such chemical treatments shall meet federal, state, county and City requirements as prescribed in their respective containers. 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 Pem1itted Transfers of Common Areas. 6.4.1 To the City or Other Public Agency. 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, authority or utility for public park, public easement or utility 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. 6.4.2 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 California, 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 600000.11/SD T8483-006/l -l 6-07 /cbs/slt -26- 12262 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 are 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 City Requirements. The following provisions are included in this Declaration for the benefit of the City, as required by the conditions of City approval of the Tentative Map: 6.6.1 General Enforcement by the City. The City shall have the right, but not the obligation, to enforce the provisions of this Section 6.6. 6.6.2 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 fqrth with particularity the maintenance which the City 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 Special Assessments Levied by 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 City 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 shall 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 share of the invoice, plus the late charge, which shall be allocated among the Owners in proportion to the 600000.11/SD T8483-006/l . J 6.07 /cbs/slt -27- 12263 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 Compliance with Specific 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 Environmental 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, 200°2. 6. 7 Open Space 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 ofDeclarant, 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. 600000.11/SD T8483-006/l-3 l .07/ebs/slt -28- ARTICLE 7 EASEMENTS 12264 7.1 Easements Over Common Areas. The Common Areas are subject to the following easements: (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 ofDeclarant, 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 Park for monument signs, landscaping, walls and other Improvements identifying the entry. (d) There is hereby reserved over the Common Areas, for the benefit 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 Declarant 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 pollution 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 Entry on Common Areas. The Association shall maintain the insurance described in Section 2.2.4(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 600000.11/SD T8483--006/I-\6-07/cbs/slt -29- 1226.5 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 hazardous condition remains on such Common Areas, and repair any damage thereto; ( d) Keep such Common Areas free and clear 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 (f) 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 and 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 areas of Lots and shall not unreasonably interfere with the use and enjoyment by the Owners of their Lots and any Improveme~ts located thereon. If the Association damages the surface 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 existed immediately prior to such damage, and any costs incurred by or at the direction of the Association shall be allocated on an equitable 600000. I I /SD T8483.006/l-l 6-07/ebs/slt -30- 12267 and all Assessments, together with interest, costs and attorneys' 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 10.3; 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 Exemptions. 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 Assessments. 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 costs 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 (f) the furtherance of any other duty or power of the Association. 8.4 Regular 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 <if Regular Assessments pursuant to Section 8.4.5, and at least thirty (30) days prior to each calendar year thereafter, the Board shall prepare or cause to be prepared and distribute to all Members of the Association a proforma operating budget ("Budget") for such first or successive calendar year setting forth the estimated revenue and expenses 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-Stirling 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 Board to timely fix the Regular Assessments under this Declaration shall not constitute a waiver by the Board of its rights under this Declaration 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 calendar year are established. 600000.J I/SD T8483--006/\-16-07/cbs/slt -32- 12268 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 3.3, 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 (1st) 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 12.2.2. 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 Special Assessments. 8.5.1 Types. 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 incurred 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. _8.5 2 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 Allocation. 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 600000.11/SD T8483-006/J . J 6-07 /cbs/slt -33- 12269 yet good-faith discretion. Any Special Assessment pursuant to Section 8.5.l(b) shall be allocated among all Owners, with each Owner share 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 Payment"), 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 particular 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 fifteen (I 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 attorneys' fees and court costs, and the other costs of collection, as provided in this Declaration, shall be a continuing lien upon the Lot against which such Assessment is made and may be enforced as permitted in Article I 0. 8.9 • Deposit of Funds. The Assessments collected by the Association shall be properly deposited into two (2) separate 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 appropriate 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. IO 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 600000,11/SD T8483.006/J. J 6-07/cbs/slt .34. 12270 transferred to the successor Owner of such Lot. After the transfer of any Lot within the Property, the transferring 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. ARTICLE9 OWNER'S INSURANCE 9 .1 Right 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 ($1,000,000), 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 thirty (30) days prior written notice to the Association. 9.3 Destruction of Owner's Building or Other Structures. 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 ENFORCE1\1ENT 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 declared 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. 10.2. l Right 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 600000.11/SD T8483-006/l-I 6--07/cbs/slt -35- 12271 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 subject to these restrictions expressly waives the benefit ofCalifomia Code of Civil Procedure Section 73 la 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. 10.2.2 Inspection: Abatement by Declarant, Association. During reasonable hours, Declarant 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 are 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. 10.2.3 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 Declaration, to enjoin or prevent them from doing so, to cause said violation to be remedied and to recover damages for said violation. I 0.3 Collection of Assessments: Liens. 10.3.1 Right to Enforce. The right to collect and enforce Assessments is vested in the Board 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 10.3.3. Suit to recover a money judgment for unpaid Assessments may be maintained without foreclosing or waiving the lien rights. 600000.11/SD T8483.006/l-I6-07/cbs/slt -36- 12272 10.3.2 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. l0.3.3 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, 2924b 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 attorney, any officer or director, or any title 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 Board 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 have the power to bid upon the Lot at the foreclosure sale and to acquire, hold, lease, Mortgage and convey the Lot. 10.3.4 Subordination of the Lien to First Mortgages. 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 and 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 title to the same as a result of foreclosure, such purchaser and his successors or assigns shall not be liable for Assessments chargeable to such Lot which became due prior to the acquisition of title to such Lot by such purchaser. I 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. 10.5 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 600000.11/SD T8483-006/l -16-07 /cbs/slt -37- 12273 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 arbitrator 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. I 0. 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 Mortgage: (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 title to the Lot(s) shall be personally liable for all charges hereunder that shall accrue during such Person's ownership of any Lot commencing with the applicable Event of Foreclosure. Nothing in this Section shall be construed to release any Owner from his personal obligation to pay any Asse_ssment levied pursuant to this Declaration. ARTICLE 11 TERM; AMENDMENTS 11.1 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 often (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. 11.2 Amendments. Prior to first sale of a Lot to an Owner other than Declarant, Declarant shall have the right to amend this Declaration by Recordation of an amendment executed by Declarant, 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 11.2, 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 600000.11/SD T8483-006/l -l 6-07 /cbs/slt -38- 12274 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 writirig by the City prior to Recordation of the amendment. ARTICLE 12 ANNEXATION OF ADDITIONAL PROPERTY 12.1 Right to Annex. The real property described in Exhibit 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 all 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. l 2.2 Effect of Annexation. Upon Recordation of a Declaration of Annexation, 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 ifit 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 Rights of Owners. The rights, powers and responsibilities of Declarant and Owners, Lessees and Occupants 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 12.2.3. 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. 12.2.2 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 600000.11/SD T8483-006/1-I 6-07/cbs/slt -39- 12276 Declarant) and such assignee execute and Record a document which expressly names such party as successor Declarant 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 Declarant has surrendered said rights and obligaiions; and, upon Recordation cif 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 ofDeclarant 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 California Civil Code Section 135 I et seq. 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 ofDeclarant 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 areas, these rights of the Declarant are expressly reserved or retained by the Declarant, and all of the provisions of this Declaration are 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 Declarant deems necessary or advisable. Such right shall include but shall not be limited to erecting, constructing and maintaining on the Property such structures and displays as may be reasonably necessary for the conduct of the business of completing all Improvements required by the Specific Plan and the City, and all Lots owned by Declarant and disposing of the same by sale, lease or otherwise. This Declaration shall not limit the right ofDeclarant 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. 600000.1 I/SD T8483-006/l-16-07/ebs/slt -41- 1227, 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 Exhibits. 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 Headings. 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. IO Mortgage Protection. No breach of this Declaration 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 practical 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. 13.11 Mutuality Reciprocity; 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: 600000.11/SD Association: Techbilt Construction Corp. 3575 Kenyon Street, Suite 200 San Diego, California 92110 Attention: Mr. Ted Tchang T8483-006/l-31-07/cbs/sh -42- 12279 ST A TE OF California ) ) ss .. COUNTY OF _s_an_D_i_e_g_o ___ _,) On January l 7, 2007 before me, Paula Harmer a Notary Public in and for said state, personally appeared PauJ K Tcbang JOO& ------------~ 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. WITNESS my hand and official~ _ ' . -a com::.. ~~ 769 ~ ~ _j/,:uv-n'-6•C__.. f Notary Public • Calll01n1a f ------N-o-ta"'ry~P-'-u""b°'l'-ic....,i"'n-a_n_d_,_fo,_o.,~r"-s'-at'--. d""S"--t-=a'-te--j O O O ,;;~ JS 20Jof ~ 0 0 C C C C C C C C C C 600000.1 I/SD T8483.0061l-16-07/cbs/s\t -44- EXHIBITA LEGAL DESCRIPTION OF PROPERTY LOTS: Lots 1 through 8 inclusive of Carlsbad Tract No. CT 97-13-1,, in the City of Carlsbad, County of San Diego, State of California according to Map thereof No. 14926, recorded in the Official Records of San Diego County, California 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 97-13-1, 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. 600000. I l /SD T8483--006/I -24-07 /ebs/slt -1- 12282 12284 EXHIBITC MAP OF INITIAL COMMON AREAS Carlsbad Oaks North Business Park Association maintained Common Areas FRONT YARD AND SLOPE COMMON AREA LANDSCAPING 1) Along Whiptail Loop, Caribou Court, Gazelle Court: Landscaped area from face of curb to 3 5 feet back OR: • At up slope areas facing street: From face of curb to top of slope. • At down slope areas facing away from street, from face of curb to 10 feet back. 2) Along Faraday 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 (IO feet from face of curb) to top of slope. 3) Along El 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 El Fuerte St. and one basin is adjacent to El 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 I. ENTRY MONUMENTS 6) Entry Monuments at l)El 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 8 600000.11/SD T8483 .006/l -24-07 /ebs/slt EXHIBIT C -1- 12286 EXHIBITD NET ACREAGE SCHEDULE Net acreage is ·defined as the pad area, City required setback, and any driveways in excess of the setbacks 600000.11/SD T8483-006/l-3 J--07/ebs/slt Lot* 2 3 4 5 6 7 8 Net Acreage 6.0 7.5 4.6 4.3 4.2 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. EXHIBITD -1- Net Acreage 11.8 104 4.0 3.9 7.5 '4.9 4.0 12287 EXHIBITE 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 altissima 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 latifolii.Jm Lonicera japonica Myoporum laetum Nictiana giauca Pennisetum clandestinum 600000.1 I/SD T8483-006/I -16-07/cbs/slt Acacia, wattle, etc Pacific bent grass Pacific bent grass Tree of Heaven Scarlet pinpernel Red apple ice plant Asparagus fern 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 EXHll3IT E -1- 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 600000.11 /SO T8483-006/J. J 6-07/ebs/s!t 12288 Fountain grass Annual bear grass/rabbit's foot Kudzu Broom Castor bean Peruvian or California pepper Brazilian pepper Broom Tamarisk, salt cedar· Vinca, Perriwinkle California fan palm Mexican fan palm Cocklebur EX1-IIBIT E -2-