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HomeMy WebLinkAboutCT 85-17; College Business Park; Tentative Map (CT)RECORDED REQUEST OF FTRST Tfflt OB, ? & Recording Requested By: City of Carlsbad Planning Department 2975 Las Palmas Carlsbad, CA 92009 And When Recorded Mail to: City of Carlsbad Planning Department 2975 Las Palmas Carlsbad, CA 92009 With a Copy to: Huntington Beach Company Attn.: Law Department 18300 Von Karman, Suite 850 Irvine, CA 92715 2230 DOC 8 1991-0646772 13-DEC-1991 12=20 Ph OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE ANNETTE EUANS, COUNTY RECORDER RF: 73.00 FEES: 215.00 AF: 141.00 Iff: 1.00 Space Above For Recorder's Use DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR COLLEGE BUSINESS PARK CITY OF CARLSBAD COUNTY OF SAN DIEGO STATE OF CALIFORNIA 2231 Table of Contents ARTICLE 1 DEFINITIONS 3 1.1 "Architect" 3 1.2 "Architectural Review Committee" 3 1.3 "Articles" 3 1.4 "Assessment" 3 1.5 "Association" 3 1.6 "Board" or "Board of Directors" 4 1.7 "BusinessPark" 4 1.8 "Bylaws" 4 1.9 "CC&Rs" 4 1.10 "City" .. 4 1.11 "Committee" 4 1.12 "Common Areas" 4 1.13 "Common Expenses" 5 1.14 "Conceptual Landscape Element" 5 1.15 "Declarant" 5 1.16 "Declaration" 5 1.17 "Desilting/Detention Basins" 5 1.18 "Drainage Easement Areas" 5 1.19 "Final Map" 6 1.20 "Gross Floor Area" 6 1.21 "Hillside Areas" 6 1.22 "Hillside Ordinance" 6 1.23 "Improvements" 6 1.24 "Lessee" 7 1.25 "Lot" 7 1.26 "Maintenance and Operation Account" 7 1.27 "Maximum Building Area" 7 1.28 "Medians" 7 1.29 "Member" 7 1.30 "Mortgage" 7 1.31 "Mortgagee" 7 1.32 "Occupant" 7 1.33 "Open Space Lots" 8 1.34 "Owner" 8 1.35 "Parcourse" , 8 1.36 "Parkway Areas" 8 1.37 "Person" 8 1.38 "PM Zone" 8 1.39 "PM Zone Regulations" 9 1.40 "Preservation Easement" 9 1.41 "Project Documents" 9 1.42 "Property" 9 1.43 "Record" 9 1.44 "Reserve Account" 9 1.45 "Rules and Regulations" 9 1.46 "Signage Manual" 9 1.47 "Specific Plan" 9 1.48 "Street Setback Area" 10 1.49 "Tract Map" 10 ARTICLE 2 THE ASSOCIATION 10 2.1 Organization 10 2.2 Duties 10 2.2.1 Assessments 10 2.2.2 Common Areas 10 2.2.3 Discharge of Liens 10 2.2.4 Insurance 11 2.2.5 Payment of Expenses 11 2.3 Powers 11 2.3.1 Acquisition of Property 11 2.3.2 Assessments, Liens 11 2.3.3 Borrowing 11 2.3.4 Contracts 12 2.3.5 Delegation 12 2.3.6 Enforcement 12 2.3.7 Manager 12 2.3.8 Security Services 12 2.3.9 Variances 13 2.4 Initial Board of Directors 13 2.5 Subsequent Board of Directors 13 2.6 Personal Liability 13 2.7 Annual Membership Meetings 14 ARTICLE 3 ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 14 3.1 Membership 14 3.2 Transfer of Membership 14 3.3 Voting 14 3.4 Joint Ownership 15 3.5 Administration and Compliance 16 ARTICLE 4 ARCHITECTURAL REVIEW COMMITTEE 16 4.1 Organization; Members 16 4.2 Terms of Office 16 4.3 Duties and Appeals 16 ARTICLE 5 REVIEW OF IMPROVEMENT PLANS 17 5.1 Purpose of Improvement Regulations 17 5.2 Required Review of Plans 17 5.2.1 General Requirements 18 5.2.2 Master Plan 18 5.2.3 Preliminary Plan 19 5.2.4 Final Plan 20 5.3 Modifications to Plans and Improvements 21 5.4 Basis for Disapproval 21 5.5 Development Requirements of City 23 5.6 Decision of the Board 23 5.7 Time for Approval or Disapproval 24 5.8 Submission of Plans to City or Government 24 5.9 Proceeding with Work 24 5.10 Completion of Work 25 5.11 Estoppel Certificate 25 5.12 No Liability for Approval Errors 25 ARTICLE 6 IMPROVEMENT STANDARDS AND LIMITATIONS 26 6.1 Drainage 26 6.2 Excavation and Underground Utilities 26 6.3 Landscaping and Irrigation 26 6.4 Maximum Building Area 27 6.5 Mechanical Equipment; Ductwork, Etc 28 6.6 Parking Areas 29 6.7 Setback Lines 30 6.8 Signs 30 6.9 Slope Areas 31 6.10 Subdivision of Lots 31 6.11 Storage and Loading Areas 31 6.12 Utilities 32 6.13 Waste Disposal 32 ARTICLE 7 REGULATION OF OPERATIONS AND USES 32 7.1 Permitted Uses 32 7.2 Prohibited Uses 33 7.3 Nuisances 35 7.4 Compliance with Laws, Regulations, Permits or Certificates of Occupancy 35 7.5 Hazardous Materials 35 7.6 Necessary Permits 37 7.7 Access 37 7.8 Rules and Regulations 37 ARTICLES . RESERVATIONS OF EASEMENTS AND RIGHTS 38 8.1 Easements Over Common Areas 38 8.2 Easements of designated Hillside Areas 39 8.3 Transfer of Easement Rights 39 8.4 Right of Entry 40 8.4.1 Common Area 40 8.4.2 Hillside Area 40 8.5 Utility Easements 40 8.6 Drainage 41 8.7 Easements Reserved and Granted 41 ARTICLE 9 MAINTENANCE AND USE OF COMMON AREAS 42 9.1 Management and Maintenance by Association 42 9.2 Maintenance of Open Space Lots 43 9.2.1 Open Space Lots 43 9.2.1 Hillside Areas 43 9.3 Maintenance Caused by Owners, Etc 44 9.4 Desilting/Detention Basins 44 9.5 Driveways 45 9.6 Common Area Restrictions 45 9.7 Signs : 45 9.8 Assessment District; Dedication of Common Areas 45 9.9 Destruction, Restoration 45 ARTICLE 10 FUNDS AND ASSESSMENTS 46 10.1 Agreement to Pay Maintenance Assessments; Creation of Lien and Obligation 46 10.2 No Waiver by Non-Use 46 10.3 Purpose of Assessments 47 10.4 Budgets 47 10.5 Lots Subject to Assessment; Allocation of Assessments 47 10.6 Regular Assessments 48 10.6.1 Purpose 48 10.6.2 Date of Commencement of Regular Assessments 48 10.6.3 Establishment 48 10.6.4 Payment of Assessments 48 10.7 Special Assessments 48 10.7.1 Purpose 48 10.7.2 Establishment 49 10.7.3 Time and Manner of Payment 49 10.8 Reimbursement Assessment 49 10.9 Non-payment of Assessments 50 10.10 No Offsets 50 10.11 Transfer of Property 50 10.12 Failure to Fix Regular Assessments 50 10.13 Association Funds 51 10.14 Books of Account 51 10.15 Annual Statement 51 ARTICLE 11 MAINTENANCE, RESTORATION OF LOTS 52 11.1 Duty to Maintain 52 11.2 Lateral Support 52 11.3 Damage and Destruction; Duty to Rebuild 52 11.4 Insurance Obligation of Owners 52 11.5 Obligation to Pay Taxes, Liens 53 11.6 Performance By Board 53 ARTICLE 12 ENFORCEMENT .....: 54 12.1 Violation, a Nuisance 54 12.2 General Remedies 54 12.2.1 Rightto Enforce 54 12.2.2 Inspection; Abatement by Declarant, Association 54 12.2.3 Owner's Remedies 55 12.3 Collection of Assessments; Liens 55 12.3.1 Rightto Enforce 55 12.3.2 Creation of Lien 56 12.3.3 Notice of Default; Foreclosure 56 12.3.4 Subordination of the Lien to First Mortgages , 57 12.4 Interest 57 12.5 Attorneys' Fees 57 12.6 Cumulative Remedies; No Waiver 57 12.7 Enforcement by City 57 ARTICLE 13 TERM, TERMINATION, AMENDMENT 59 13.1 Term of Declaration 59 13.2 Amendments 59 ARTICLE 14 GENERAL PROVISIONS 60 14.1 Assignment of Declarant's Rights and Duties 60 14.2 Common Interest Subdivision 60 14.3 Constructive Notice and Acceptance 61 14.4 Declarant's Reserved Rights 61 14.5 Exhibits 61 14.6 Governing Law 61 14.7 Headings 61 14.8 Mortgage Protection 61 14.9 Mutuality, Reciprocity; Runs With Land 62 14.10 Notices 62 14.11 Notification of Sale 62 14.12 Number; Gender 63 14.13 Severability 63 14.14 Waiver 63 EXHIBIT "A" FINAL MAP; LOT CONFIGURATION OF PROPERTY : 66 EXHIBIT "B" LOT CONFIGURATION, OPEN SPACE AREAS AND INITIAL COMMON AREAS 67 DECLARATION OF COVENANTS. CONDITIONS AND RESTRICTIONS FOR COLLEGE BUSINESS PARK THIS DECLARATION of COVENANTS, CONDITIONS, AND RESTRICTIONS FOR COLLEGE BUSINESS PARK ("Declaration") is made as of NOVEMBER 26 _ , 199i by HUNTINGTON BEACH COMPANY, a California corporation ("Declarant"), with reference to the following facts: RECITALS A. Declarant is the owner of real property ("Property") located in the City of Carlsbad, County of San Diego, California, more particularly described as: Lots 1 through 26 of Carlsbad Tract No. 85-17, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 1 2^0.3 filed in the Office of the County Recorder of San Diego County On December 13 A copy of Map No. 25.__ ("Final Map") indicating the configuration of the Lots included in the Property is attached hereto as Exhibit "A." B. Declarant intends to develop the Property as a business and industrial complex to be generally known as "College Business Park" ("Business Park"), and to sell, lease, or otherwise convey portions of the Property to various individuals and entities for purposes compatible with such development. C. By this Declaration, Declarant intends to impose upon the Property mutually beneficial restrictions, in accordance with a general plan of improvement, in order to establish and provide a means of maintaining a high quality environment for the benefit of Declarant and all future owners of the Property. College Business Park B-2260 2 11/05/91 DECLARATION NOW, THEREFORE, Declarant hereby declares that the Property and each portion thereof is and shall be owned, conveyed, mortgaged, encumbered, leased, developed, improved, used and occupied subject to this Declaration and the limitations, covenants, conditions, restrictions, easements, liens and charges set forth herein, all of which are equitable servitudes and shall run with the title to the land and shall be binding on and inure to the benefit of all parties having or acquiring any right, title or interest in the Property or any portion thereof and their respective heirs, successors and assigns. The purpose of this Declaration is to enhance and protect, and provide a means of controlling and maintaining, the value, desirability and attractiveness of the Property and every portion thereof, for the benefit of Declarant and every owner, in accordance with a general plan of subdivision, development and improvement. ARTICLE 1 DEFINITIONS 1.1 "Architect" shall mean a person holding a certificate to practice architecture in the State of California under the authority of Division 3, Chapter 3 of the California Business & Professions Code or any successor legislation. 1.2 "Architectural Review Committee" or "Committee" shall mean the Architectural Review Committee created pursuant to Article 4. 1.3 "Articles" shall mean the Articles of Incorporation of the Association which are or shall be filed in the Office of the California Secretary of State, as amended and supplemented from time to time. 1.4 "Assessment" shall mean certain costs of the Association to be paid by the Owner of each Lot, as determined by the Board pursuant to Article 10. 1.5 "Association" shall mean the College Business Park Owners Association, a California nonprofit mutual benefit corporation, its successors and assigns, established pursuant to these CC&Rs., College Business Park B-2260 3 11/05/91 6> 1.6 "Board" or "Board of Directors" shall mean the Board of Directors of the Association, as the same may be constituted from time to time. 1.7 "Business Park" shall mean the Property described in Recital A, including all facilities and Improvements located thereon, which shall constitute the real property subject to the Specific Plan. 1.8 "Bylaws" shall mean the Bylaws of the Association, as amended and supplemented from time to time. 1.9 "CC&Rs" shall mean this Declaration of Covenants, Conditions and Restrictions for COLLEGE BUSINESS PARK, as the same may be amended from time to time. 1.10 "City" shall mean the City of Carlsbad, California, a municipal corporation. 1.11 "Committee" shall mean the Architectural Review Committee created pursuant to Article 4. 1.12 "Common Areas" shall mean the Open Space Lots, the Parkway Areas, the Medians, the Drainage Easement Areas, the Desilting/Detention Basins, the Parcourse, landscaped areas, bus shelters, special paving treatments, and any other portion of the Property or off-site areas 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 or the conditions of approval of the Final Map, the Specific Plan, or any other governmental approval affecting the Property. The location of the initial Common Areas within the Property subject to this Declaration are identified on Exhibit "B." The Common Areas indicated on Exhibit "B" may be modified from time to time to change the location or configuration thereof or to reflect the requirements of the City or other governmental authorities by recordation of a Supplemental Declaration executed by Declarant and recorded in the Official Records of San Diego County, California. College Business Park B-2260 4 11/05/91 **3S 1.13 "Common Expenses" shall mean the actual and estimated expenses of: (a) maintaining and operating the Association; (b) maintaining and operating the Common Areas and the Improvements located thereon, the Hillside Areas and any Improvements, facilities or services which are provided to all Owners, but the cost of which, in the reasonable judgment of Declarant, cannot reasonably be segregated for each Owner; (c) exercising the powers and performing the duties of the Association and the Board under this Declaration and the other Project Documents; and (d) maintaining any reasonable reserves for such purposes as determined by the Board. 1.14 "Conceptual Landscape Element" shall mean the landscape plans and criteria for the Business Park prepared by Declarant and approved by the City pursuant to the Specific Plan, as amended and supplemented from time to time. 1.15 "Declarant" shall mean Huntington Beach Company, a California corporation, and successors and assigns of Huntington Beach Company 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) Huntington Beach Company 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. 1.16 "Declaration" shall mean this Declaration of Covenants, Conditions, Covenants and Restrictions for College Business Park , as amended or supplemented from time to time. 1.17 "Desiltinq/Detention Basins" shall mean the desilting/detention basins constructed in connection with development of the Property within the Open Space Lots, the roads providing access between the Property and such basins, and any storm drainage facilities and erosion control landscaping installed in connection with such access roads. 1.18 "Drainage Easement Areas" shall mean all portions of the Property which are subject to drainage easements granted to the City or other governmental or utility entity or which are designated as "drainage easement" on any subdivision map or parcel map recorded for all or any portion of the Property. College Business Park B-2260 5 11/05/91 The Drainage Easement Areas are located within areas designated as Common Areas on Exhibit "C." 1.19 "Final Map" shall mean the final subdivision map for College Business Park, filed in the Office of the Recorder of San Diego County, California, on , 1990, as Map No. including all conditions of City approval thereof, as the same may be amended from time to time. The configuration of the Lots shown on the Final Map is depicted on Exhibit "A" attached hereto. 1.20 "Gross Floor Area" shall mean, with respect to any Improvements on the Property, the gross floor area computed in accordance with the definition thereof set forth in the Carlsbad Municipal Code and utilized by the City to determine the gross floor area permitted under the Specific Plan, as amended from time to time. 1.21 "Hillside Areas" shall mean those designated areas of undeveloped slope within some Lots. The location of the designated Hillside Areas within the Property initially subject to this Declaration is generally depicted on Exhibit "B." The designated Hillside Areas within the Lots shall be maintained by the Association pursuant to this Declaration, the Hillside Ordinance, and the Specific Plan; The Association shall have an easement over such areas as required by the Hillside Ordinance and as further described in Article 8. 1.22 "Hillside Ordinance" shall mean the Hillside Development Guidelines, and the Hillside Development Regulations (Chapter 21.95) of the Carlsbad Municipal Code. 1.23 "Improvements" shall mean buildings, accessory structures, underground installations, slope and grade alterations, roads, curbs, driveways, gutters, parking areas, loading areas, sidewalks, utilities, fences, walls and barriers, stairs, decks, poles, signs, hedges, plantings, planted trees and shrubs, irrigation systems, storm drains, drainage facilities, and all other structures or landscaping improvements of any kind, whether above or below the land surf ace. College Business Park B-2260 6 11/05/91 1.24 "Lessee" shall mean the owner of a leasehold interest in all or a portion of the Business Park. 1.25 "Lot" shall mean each of Lots 1 through 26 of the Final Map. If any Lot is resubdivided or if a merger or lot line or boundary adjustment affecting two or more Lots is recorded, then each of the legal lots thus created shall be deemed to be a Lot. 1.26 "Maintenance and Operation Account" shall mean an account into which the Board shall deposit funds for maintenance and operation assessments, as described in Section 10.13. 1.27 "Maximum Building Area" shall mean the maximum Gross Floor Area of permitted development allocated to the Property and to each Lot pursuant to the Specific Plan, and as specified in the Annexation of Declaration for each Lot, as modified from time to time by Declarant pursuant to Section 6.4. The Maximum Building Area shall be established without regard to, and shall not be modified to conform to, the actual Gross Floor Area constructed on a Lot. 1.28 "Medians" shall mean real property located within the rights-of- way of any public street, between paved portions of the street or within cul-de-sac areas, which have been or will be improved by Declarant for landscape purposes, including any irrigation systems or other appurtenances thereon. 1.29 "Member" shall mean every Owner who is a Member of the Association pursuant to Article 3. 1.30 "Mortgage" shall mean any duly recorded mortgage or deed of trust encumbering one or more Lots in the Business Park. 1.31 "Mortgagee" shall mean a holder of a mortgage, including a beneficiary under a deed of trust. 1.32 "Occupant" shall mean any Person who has the legal right to occupy a portion of the Business Park and is not an Owner or Lessee. College Business Park B-2260 7 11/05/91 1.33 "Open Space Lots" shall mean the real property described as Lots 24, 25, and 26 of the Final Map, as shown on Exhibit "A;" It is anticipated that the Open Space Lot s will be conveyed to the Association. 1.34 "Owner" shall mean the record owner, whether one or more Persons, of fee simple title to any Lot or Lots within the Property, including Declarant, but excluding those holding such an interest merely as security for the performance of an obligation. 1.35 "Parcourse" shall mean those areas depicted on Exhibit B, and more particularly described on Sheets L-2 and L-3 of the Irrigation and Landscape Plans for CT-85-17 approved by the City of Carlsbad on , 1991, which Parcourse shall be maintained as part of the Common Area by the Association pursuant to this Declaration and the Specific Plan, and the Association will have an easement over such area as described in Article 8. 1.36 "Parkway Areas" shall mean (a) those areas within the rights-of- way of each public street through or adjacent to the Property which are located between the curb and the property lines of the adjacent Lots, and (b) those areas located within a ten foot width measured from the property line of the Lots adjacent to said rights-of-way of each public street through or adjacent to the Property. The location of the Parkway Areas within the Property initially subject to this Declaration is generally depicted on Exhibit "B." The Parkway Areas within the public rights-of- way shall be maintained by the Association pursuant to the Specific Plan. The Parkway Areas located within the Lots shall also be maintained by the Association, and the Association shall have an easement over such areas as further described in Article 8. 1.37 "Person" shall mean a natural person, a corporation, a partnership, a trustee, or other legal entity. 1.38 "PM Zone" shall mean the "Planned Industrial" Zone designation applied to the Property, as defined in Chapter 21.34 of the Carlsbad Municipal Code, the Zoning Ordinance of the City, as amended and supplemented from time to time. College Business Park B-2260 8 11/05/91 1.39 "PM Zone Regulations" shall mean the zoning regulations adopted by the City for property with the PM Zone designation, as set forth in the City's Zoning Ordinance, as amended and supplemented from time to time. 1.40 "Preservation Easement" shall mean the preserved area of approximately 3 acres of coastal sage scrub located on Lot 2. 1.41 "Project Documents" shall mean this Declaration, the Exhibits attached hereto, the Articles and Bylaws, and the Rules and Regulations, all as amended or supplemented from time to time. 1.42 "Property" shall mean the entire parcel of real property legally described in Recital A, including all facilities and Improvements located thereon, which is hereby subjected to this Declaration. 1.43 "Record" shall mean, with respect to any document, the filing and recordation of said document in the Office of the County Recorder of the County of San Diego, California. 1.44 "Reserve Account" shall mean an account into which the Board shall deposit funds for contingencies, repairs and replacements, as described in Section 10.13. 1.45 "Rules and Regulations" shall mean those Rules and Regulations prepared by Declarant to regulate the use operation, management use and maintenance of the Property, as further described in Section 7.8, as such Rules and Regulations may be amended or supplemented by the Board. 1.46 "Signage Manual" shall mean the manual prepared by Declarant setting forth the standards for permissible signs in the Business Park, as approved by all applicable governmental authorities. 1.47 "Specific Plan" shall mean Specific Plan No. 199, approved for the Property including the Business Park, by the Planning Commission of the City of Carlsbad on October 1, 1986 and the conditions of City approval thereof, as amended and supplemented from time to time. College Business Park B-2260 9 11/05/91 1.48 "Street Setback Area" shall mean the setback area on each Lot adjacent to public streets, as required under the terms of the Specific Plan and the underlying zoning. 1.49 "Tract Map" shall mean Carlsbad Tract No.85-17, approved by the City, which covers the Property and other real property adjacent thereto, as shown on Exhibit "B" attached hereto. ARTICLE 2 THE ASSOCIATION 2.1 Organization. The Association is a California nonprofit mutual benefit corporation, charged with the duties and empowered with the rights set forth herein, in the Bylaws and in the Articles. 2.2 Duties. The Association shall be charged with 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 10. 2.2.2 Common Areas. The Association shall maintain, repair, replace, restore, operate, control and manage the Common Areas and all facilities, Improvements and equipment located thereon, as further described in Article 9, except to the extent such maintenance has been assumed by a governmental agency or public or private utility, and except as otherwise set forth herein. 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 placed thereon as a result of the action of an Owner or Owners, assess the cost thereof as a Reimbursement Assessment (as defined in Section 10.8) to the Owner or Owners responsible therefor, provided, however, such Owner or Owners shall be given notice at least fifteen (15) days prior to any proposed discharge by the College Business Park B-2260 10 11/05/91 Association and the reasons therefor, and the opportunity to be heard by the Association, either orally or in writing, at least five (5) days before 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; (b) comprehensive general public liability insurance in the amount of at least $3,000,000 (Three Million Dollars) per occurrence, insuring Declarant, the Association, the Board, the 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, including, without limitation, all licenses, taxes or governmental charges levied or imposed against the property of the Association. 2.3 Powers. The Association shall have the following powers, rights and duties, in addition to those provided elsewhere in this Declaration, the Articles and the Bylaws: 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 10 and to perfect and enforce liens in accordance with the provisions of Article 12. 2.3.3 Borrowing. The Association shall have the power to borrow funds to pay costs of operation, secured by assessment revenues due for College Business Park B-2260 11 ' • 11/05/91 succeeding years or by assignment or pledge of rights against delinquent Owners; provided, however, that the vote of Owners holding a majority of the total voting power of the Owners shall be required to borrow, during any calendar year, in excess of Ten Thousand Dollars ($10,000) multiplied by the number of Lots included in the Property from time to time (excluding Open Space Lots). 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 Bank of America Reference 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 authority to enforce this Declaration pursuant to Article 12. 2.3.7 Manager. The Association shall have the authority 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 any contract with a manager or managing agent shall not exceed a one (1) year term and may provide for the right of the Association to terminate the contract immediately for cause and otherwise on thirty (30) days' written notice. The Association may contract with Declarant or an affiliate of Declarant. 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. College Business Park B-2260 12 11/05/91 2.3.9 Variances. The Board, acting for the Association, shall have the power to grant reasonable variances from the provisions of this Declaration from time to time, as the Board may deem, in its sole discretion, to be in the best interests of the Business Park, in order to overcome practical difficulties and to prevent unnecessary hardship in the application of the provisions contained herein, provided, however, that: (a) each variance does not materially injure any of the Lots or Improvements in the Business Park; and (b) the Owner seeking the variance shall otherwise be subject to and conform with all applicable governmental laws, ordinances, regulations and requirements. No variance granted pursuant to the authority granted herein shall constitute a waiver of any provision of this Declaration as applied to any person or real property. 2.4 Initial Board of Directors. The initial Board of Directors of the Association shall consist of three (3) directors appointed by Declarant upon the incorporation of the Association and shall hold office until the initial Board calls the first annual meeting of Members pursuant to Section 2.7. 2.5 Subsequent Board of Directors. At the first annual meeting of Members, a new Board consisting of five (5) directors shall be elected, and such Board shall serve until the next annual meeting. At each subsequent annual meeting, except as may be otherwise provided by the Bylaws, the Members shall elect a Board consisting of five (5) directors who shall serve until the next annual meeting. The Bylaws shall provide for staggered terms and lengths of terms for directors different from those initially set forth in this Declaration and may provide for a greater or lesser number of directors than set forth herein; provided, however, in no event shall there be more than seven (7) directors or less than three (3) directors. The Board shall undertake all duties and responsibilities of the Association and the management and conduct of the affairs thereof, except as expressly reserved herein to a vote of the Members. 2.6 Personal Liability. No member of the Board, 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 party, 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. College Business Park B-2260 13 11/05/91 2.7 Annual Membership Meetings. The initial Board may call the first annual meeting of Members at any time, but in no event later than sixty (60) days after fifty-one percent (51%) of the Lots initially subject to this Declaration are conveyed by Declarant to Owners other then Declarant. Thereafter, the Association shall hold an annual meeting of the Members in accordance with the Bylaws of the Association. ARTICLE 3 ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 3.1 Membership. An Owner shall automatically, upon becoming the record Owner of a Lot, be 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. Notwithstanding that membership in the Association shall be held by an Owner, this Declaration is binding upon Lessees and Occupants. 3.2 Transfer of Membership. Membership in the Association shall not be transferred, pledged or alienated in any way, except upon conveyance of a Lotto 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 when the Lessee's tenancy ends for any reason. 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, whether voluntary or involuntary, of the Lot, 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, but any agency and proxy given to a Lessee under a power coupled with an interest shall remain in effect throughout the period of the lease term and the Lessee's occupancy. 3.3 Voting. The Association shall have two (2) classes of voting membership: College Business Park B-2260 14 11/05/91 (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 (1) vote for each 100 square feet of Maximum Building Area (rounded off to the nearest 100 square feet) owned by such Owner. (b) Declarant shall be the sole Class B Member and shall have ten (10) votes for each 100 square feet of Maximum Building Area (rounded off to the nearest 100 square feet) owned by Declarant. Declarant's Class B membership shall terminate twelve (12) years after the date of recordation of this Declaration, at which time Declarant, if it is an Owner, shall be a Class A Member with the votes described in (a) above. The votes allocated to Class A members and attributable to each Lot included in the Property initially subject to this Declaration are set forth on Exhibit "D" attached hereto. Whenever a vote is provided for under the terms of this Declaration, it shall be made in accordance with the provisions of this Section 3.3 unless otherwise specified. 3.4 Joint Ownership. Where the record ownership of fee simple title to a Lot is jointly held by more than one Person, all such Persons shall jointly constitute one Member. The votes for such Lot shall be exercised as such Persons shall jointly determine among themselves, but in no event shall more votes be cast with respect to any Lot than the number of votes to which the Lot is entitled. The Association shall have no obligation to determine the voting rights among such Persons, and if such Persons cannot agree upon how their votes shall be cast, the Association shall have the right to disregard the votes for such Lot. College Business Park B-2260 15 11/05/91 3.5 Administration and Compliance. 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. If the Bylaws are in any way inconsistent with this Declaration, then this Declaration shall prevail and control. Each Owner, Lessee, Occupant or guest of a Lot shall comply with the Project Documents, and failure to so comply shall constitute a breach of this Declaration and shall subject the defaulting party to all enforcement procedures and remedies provided under the Project Documents or available at law or in equity. ARTICLE 4 ARCHITECTURAL REVIEW COMMITTEE 4.1 Organization; Members. An Architectural Review Committee shall be established which shall consist of three (3) Persons appointed by the Board. The Board shall also appoint two (2) alternate members, either of whom may be designated by the Committee to act as a substitute for any member of the Committee in the event of his unavailability or disability. The right to remove any member or alternate member of the Committee shall be vested solely in the Board. Any member of the Committee may resign from the Committee, at any time, upon written notice to the Board. The Board shall appoint a new member to fill any vacancy. 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 Article 5. 4.2 Terms of Office. The term of all Committee members shall be one (1) year. Any new member appointed to replace a member who has resigned or been removed shall serve such member's unexpired term. Members whose terms have expired may be reappointed. 4.3 Duties and Appeals. The Committee shall have the following duties: College Business Park B-2260 16 11/05/91 (a) To consider and approve, conditionally approve or disapprove Preliminary Plans, Final Plans and other documents required to be submitted to the Committee pursuant to Article 5; (b) In reviewing plans, specifications and other documents submitted pursuant to Article 5, to apply and enforce the standards and restrictions set forth in this Declaration; and (c) To perform all other duties delegated to and imposed upon it by this Declaration or the Board. Any Owner, Lessee or Occupant may appeal any decision of the Committee to the Board. ARTICLE 5 REVIEW OF IMPROVEMENT PLANS 5.1 Purpose of Improvement Regulations. The purpose of the conditions, covenants and restrictions set forth in Articles 5 and 6 is: (a) to insure proper development and use of the Property and to enhance and protect its value, in accordance with a general plan for development of a compatible Business Park; (b)to encourage and preserve an efficient, attractive environment; (c)to ensure construction of Improvements of proper design and materials in conformance with the Specific Plan which enhance the economic or esthetic value of the Property; (d)to provide for architectural compatibility and continuity for all buildings and landscaping; (e)to secure and maintain proper setbacks from streets and adequate open spaces between structures; and (f) in general, to provide and maintain a high quality of Improvements for the Property for the benefit of Declarant and all Owners. 5.2 Required Review of Plans. No Improvements (other than interior tenant improvements) shall be erected, placed, altered, expanded, maintained or permitted to remain on any portion of the Property until Plans (as defined below) have been submitted to and approved in writing by the Committee. All required Plans shall be submitted to the Committee in writing, signed by the Owner or prospective Owner of the Lot. If an application is submitted by a Lessee or College Business Park B-2260 17 11/05/91 prospective Owner or Lessee, the Owner of the affected Lot shall execute the Plans indicating its approval thereof. Approval must first be obtained from the Committee before the Plans are submitted to the City of Carlsbad. All drawings, designs, and materials must be accurate and complete. A plan review fee of $250.00 payable to the Association will be charged by the Committee for Plans prepared by a licensed architect. Plans shall be submitted to Declarant's office at 18300 Von Karman Avenue, Suite 850, Irvine, California 92715, or such other address as designated by Declarant in a writing delivered to each Owner at the address for such Owner as shown on the books maintained by the Association. The plan review fee may be modified by the Board to reflect changed circumstances, such as increased costs due to inflation. Plans shall be submitted as follows: 5.2.1 General Requirements. Two copies of each submittal are required. One copy will be returned to the applicant with comments. Lot numbers must be included on all plans and other documents submitted for review. A tabulation of Gross Floor Area by use, site area, landscape areas, required parking, parking provided, and the percent of building coverage must be included on all plans submitted for review. 5.2.2 Master Plan. The submission of a site Master Plan ("Master Plan") shall be required only when ultimate site development occurs in stages. The Master Plan shall be submitted and approved by the Committee before a Preliminary Plan is submitted. The Master Plan shall include the following: (a) an illustration of the total building complex, including roof lines and applicable setback areas; (b) vehicular and pedestrian circulation; (c) employee and guest parking; (d) grading, drainage and utilities; (e) the design relationship to adjacent properties and streets; College Business Park B-2260 18 11/05/91 (f) a description and sketches indicating architectural character and materials; and (g) a conceptual landscape plan, including, but not limited to, landscaping and irrigation of any Street Setback Areas. 5.2.3 Preliminary Plan. Following approval of a Master Plan by the Committee, if required, all applicants shall submit a preliminary plan ("Preliminary Plan"), which shall set forth and/or depict the following information: (a) traffic circulation plan, including employee and guest parking layout; (b) projected number of employees and schedule of working hours; (c) setbacks; (d) building and roof lines; (e) indication of existing topography; (f) finished grades; (g) drainage and utility connections to existing lines; (h) building elevations showing materials; (i) colors and finishes; (j) height for all exterior design elements; (k) planting areas; (I) location of a method of screening exterior storage areas; College Business Park B-2260 19 11/05/91 (m) loading docks and ramps, transformers, storage tanks, mechanical equipment, antennas; (n) trash enclosures; (o) the total number of regular compact and handicapped parking space parking lot; (p) walkway and security lighting including catalog cuts of fixtures; (q) a conceptual landscape plan, including, but not limited to, any Street Setback Areas, together with a landscape maintenance plan for the Street Setback Areas; (r) location, dimension and general form of proposed temporary and permanent signing in compliance with the Signage Manual; (s) a description of sound attenuation measures; (t) a plan for compliance with any brush management program required by the City or any other governmental agency; and (u) signage. The Preliminary Plan shall be submitted and approved by the Committee before a Final Plan is submitted. 5.2.4 Final Plan. Following approval of a Preliminary Plan by the Committee, all applicants shall submit a Final Plan, which shall include the following information: (a) revisions required by the Preliminary Plan review; College Business Park B-2260 20 11/05/91 (b) construction details; (c) specifications if requested; (d) exterior color samples; (e) complete landscape plans showing the location and types of trees, shrubs, ground cover and irrigation systems; and (f) energy and water conservation measures to be taken. 5.3 Modifications to Plans and Improvements. Material changes in the Master, Preliminary or Final Plans approved by the Committee must be resubmitted to and approved by the Committee pursuant to this Article. In addition to the other requirements of this Section 5.3: (a) no exterior surface of any Improvement on any Lot shall be repainted, texturized or otherwise changed, (b) no alterations, additions or changes shall be made to any landscaping on any Lot, and (c) no additions or alterations to any paved area on any Lot shall be made until, in each case, plans for such painting, alterations, additions or changes, including samples of colors and materials, landscaping plans, or paving plans and specifications as the case may be, together with such other information as shall be required by the Committee, have been submitted in duplicate to the Committee and the Committee has approved such requested change in writing. 5.4 Basis for Disapproval. The Architectural Review Committee may disapprove any and all plans and specifications,submitted hereunder on any reasonable ground, including but not limited to, any of the following: (a) Failure to comply with any of the provisions of this Declaration; (b) Failure to conform with the Specific Plan or other City development standards and regulations applicable to the Property; College Business Park B-2260 21 11/05/91 (c) Objection to the color scheme, finished proportions, style of architecture, height, bulk or appropriateness of any proposed Improvement in relation to the Lot or other Lots, or in relation to other Improvements which are existing or proposed and approved by the Committee; (d) Incompatibility of exterior design or materials with existing structures and the topography and scenic resources of the area; (e) Objection to the landscape plan, including conformity of landscape design or materials with street landscaping, existing or proposed landscaping approved by the Committee for other Lots, or the Conceptual Landscape Element; (f) Objection to the landscape maintenance plan for the Street Setback Areas, including the sufficiency of such plan to ensure maintenance of such areas in a first-class condition compatible with other Street Setback Areas in the Business Park and the requirements of this Declaration; (g) Visual or aesthetic impact; (h) The effect of the location and use of the Improvements on neighboring sites and the operations and uses thereon; (i) 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; (j) Failure to adequately screen trash areas and mechanical equipment from view from adjacent streets and properties; (k) Inadequacy of off-street parking or objection to the design and location of the parking areas; and College Business Park B-2260 22 11/05/91 ***? (I) Any other matter which, in the reasonable judgment of the Committee, 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 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. 5.5 Development Requirements of City. The Property is subject to and each Owner shall comply with: (a) the development criteria and requirements set forth in the Specific Plan; (b) the PM Zone Regulations; (c) the development restrictions and requirements set forth in the Specific Plan ; and (d) other applicable governmental requirements. The City has the right to review and approve site development plans for each Lot pursuant to policies and standards promulgated, approved or adopted by the City, including without limitation, the Specific Plan, and the City's Zoning Ordinance. The City's review may include, but shall not be limited to, sign location, landscaping; access drives and building architecture. If any requirement imposed by the City is different from a requirement contained herein, the more restrictive requirement shall prevail. Each Owner and Occupant is responsible for identifying and conforming with all City requirements. 5.6 Decision of the Board. The Committee may approve, conditionally approve, or disapprove Master, Preliminary or Final Plans, or any other submittal required under this Article. The decision of the Committee may be appealed to the Board, and the decision of the Board shall be final and binding on all parties. The Board may amend its decision only with the consent of the Owner of the Lot on which the Improvement is to be located. One (1) set of the Master, Preliminary and Final Plans and each other document submitted to the Committee shall be returned to the applicant with the approval or disapproval endorsed thereon, and the other set shall be retained by the Committee for its permanent files. College Business Park B-2260 23 11/05/91 5.7 Time for Approval or Disapproval. If the Committee, or its designated representative, fails to approve or disapprove the complete Master, Preliminary or Final Plans or other documents submitted to the Committee, in writing, within thirty (30) days after the Committee's receipt of a complete application for such approval and the architectural review fee, it shall be conclusively presumed that the Committee has disapproved the same unless the applicant has delivered to the Committee, within fifteen (15) days after the expiration of the 30- day period, a notice in writing setting forth the date of initial submittal of the complete application to the Committee and the fact that no approval or disapproval has been given as of the date of such notice. If the Committee fails to either approve or disapprove the application on or before the fifteenth (15th) day after the Committee's receipt of such notice, the provisions of this Declaration requiring approval of such Plans or other documents by the Committee shall be deemed to have been waived by the Committee with respect to such plans; provided, however, that such waiver shall not be deemed to be a waiver of any other covenant, condition or restriction provided herein. 5.8 Submission of Plans to City or Government. No plans, specifications or other documents to be submitted to the Committee pursuant to this Article shall be submitted to the City or any other governmental agency prior to obtaining the approval of the Committee. If plans, specifications or documents approved by the Committee are subsequently modified by the City or other governmental action, the modifications must be submitted to and approved by the Committee in writing, pursuant to the procedures specified in this Article. Upon City or other governmental approval of any such plans, specifications or documents, whether or not they have been modified, one complete approved set hereof shall be furnished to the Committee. 5.9 Proceeding with Work. Upon approval of Final Plans by the Committee pursuant to this Article, the Owner, Lessee or Occupant to whom the approval is given shall satisfy all conditions thereof and shall diligently proceed to commence the approved construction within one (1) year after the date of such approval, or within such other time period which may be requested by the party submitting the Plans and reasonably approved by the Committee. If the approved construction is not commenced within said one year or other approved time period, the approval given by the Committee pursuant to this Article shall be deemed College Business Park B-2260 24 11/05/91 revoked, unless the Committee, upon written request made prior to the expiration of said time period, extends the time for commencing work. 5.10 Completion of Work. Once commenced, all construction work shall be diligently prosecuted to completion in accordance with the approved Final Plan. Work in progress shall not cease for a period in excess of thirty (30) days, and construction or alteration of any Improvements shall be completed within two (2) years after the commencement thereof, except and for so long as such work is rendered impossible, or would result in great hardship, due to strikes, fires, national emergencies, natural calamities, or other supervening forces beyond the control of the Owner, Lessee or Occupant or their agents. Failure to comply with this Section 5.10 shall constitute a breach of this Declaration and shall subject the defaulting party to all enforcement procedures and remedies provided under the Project Documents or available at law or in equity. Upon completion of construction of any Improvement, one complete set of as-built plans shall be submitted to and maintained by the Committee. 5.11 Estoppel Certificate. Upon payment of a reasonable fee, in an amount set by the Board, and upon written request of any Owner, accompanied by an ALTA or certified as-built survey of the Lot if the Committee does not have such a survey in its files, the Committee shall issue an acknowledged certificate in recordable form certifying that, as of the date thereof, either: (a) all Improvements located on a specific Lot comply with the provisions of this Declaration; or (b) such Improvements do not so comply, in which event the certificate shall identify the non- complying Improvements and set forth with particularity the reason(s) for such non- compliance. Such certificate shall be furnished by the Committee within a reasonable time, but not to exceed thirty (30) days from receipt of a written request for such a certificate. Any Lessee, prospective Owner or Lessee or Mortgagee in good faith and for value shall be entitled to rely on said certificate with respect to the matters set forth therein, such matters being conclusive upon all parties in favor of such subsequent parties in interest. 5.12 No.Liability for Approval Errors. Declarant, the Board, the Committee, and their delegated agents shall not be liable for any damage, loss or prejudice suffered or claimed by any Person on account of: (a) the approval or disapproval of any plans or specifications; (b) the construction or performance of College Business Park B-2260 25 11/05/91 any work or improvement; (c) any defects in any plans, drawings, specifications or other documentation or any structural or other defects in any work, whether or not pursuant to approved plans or specifications; (d) the development of any Lot within the Property; or (e) the execution and filing of an estoppel certificate pursuant to Section 5.11, whether or not the facts therein are correct, provided that the Committee has acted in good faith in issuing such estoppel certificate on the basis of such information as may be possessed by it. Each Owner, Lessee, Occupant or other Person who submits Preliminary Plans, Final Plans or other documents to the Committee shall forever indemnify, hold harmless and defend the Declarant, the Board, the Committee, the Members thereof and the agents of each such party harmless from and against all damage, loss or prejudice suffered or claimed by any Person on account of any of the matters described above in this Section. ARTICLE 6 IMPROVEMENT STANDARDS AND LIMITATIONS 6.1 Drainage. No Owner shall 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 Review 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 in the recorded subdivision map for the Business Park. Each Owner shall maintain, repair and keep free from debris or obstruction the drainage system and facilities (if any) located on his Lot. 6.2 Excavation and Underground Utilities. No excavation shall be made except in connection with the construction of an Improvement, and, upon completion thereof, exposed openings shall be backfilled and disturbed ground shall be graded, properly compacted, leveled and restored to its original condition. 6.3 Landscaping and Irrigation. Each Owner shall provide continuous maintenance for all planted and undeveloped areas upon its Lot (excluding Common Areas, which shall be maintained by the Association) and shall College Business Park B-2260 26 11/05/91 keep the same free and clear of weeds, debris and rubbish, in a neat and clean condition. Each Owner shall comply with Brush Management Programs adopted by the City from time to time, including, but not limited to, any requirement for clearing or maintaining any areas (including slopes and open space areas) around such Owner's buildings. Each Owner shall maintain the landscaping and irrigation facilities on all Street Setback Areas on its Lot in substantially the same quality and condition as the landscaping and irrigation facilities originally installed by Declarant, or as otherwise approved by the Committee pursuant to Section 5.2. If the landscaping and irrigation facilities within any Parkway Areas or Street Setback Areas are damaged or disturbed in connection with construction of Improvements on any Lot, the Owner of such Lot shall restore and/or replace the same in accordance with Plans approved by the Committee pursuant to Article 5. Maintenance of the Street Setback Areas shall be in conformance with the landscape maintenance plan for such areas approved by the Committee pursuant to Section 5.2 and any other standards and guidelines established by the Committee from time to time to ensure compatible, first-class maintenance of the Street Setback Areas throughout the Business Park. Every Lot improved with a building or other substantial structure shall be landscaped as approved by the Committee within sixty (60) days after occupancy or completion of such structure, whichever occurs first, and maintained thereafter in a sightly and well- kept condition. In particular, all unpaved areas between street curbs and the setback lines prescribed herein shall be fully and adequately landscaped. Hose bibs, sprinklers, drains and other reasonable and adequate landscape maintenance facilities shall be provided in the vicinity of all landscaped areas. 6.4 Maximum Building Area. The Gross Floor Area of the Improvements constructed on each Lot shall not exceed the Maximum Building Area allocated to such Lot. The Maximum Building Area of each Lot "shall be determined as of the date of recordation of the Declaration of Annexation for such Lot in accordance with the Specific Plan, taking into consideration all required set-back areas. Declarant reserves the right to modify the Maximum Building Area of one or more Lots, at any time prior to the conveyance of such Lots to a third party, provided that Declarant shall not modify the Maximum Building Area of any Lot after the conveyance of such Lot to a third party without the prior written consent of such third party. The revised Maximum Building Areas shall be set forth in a Supplement to this Declaration, executed and recorded by Declarant. If any Lot is further College Business Park B-2260 27 11/05/91 subdivided or if a merger or lot line or boundary adjustment affecting two or more Lots is recorded, the Maximum Building Areas of the original Lot or Lots shall be allocated among the resubdivided Lot or Lots in a manner approved by the Board and consistent with the PM Zone Regulations and other applicable City requirements. Upon issuance of any building permit for any building construction, including any remodeling, alteration or expansion of any existing building, the Owner of the affected Lot shall deliver to the Committee a determination of the Gross Floor Area of the proposed building, certified by an Architect. Such determination shall be subject to verification by an Architect designated by the Association. 6.5 Mechanical Equipment; Ductwork, Etc.. Each Owner shall comply with the following restrictions: (a) All roof-mounted mechanical equipment and/or ductwork shall be screened from view by an enclosure which is detailed in a manner consistent with the building. Consideration shall be given to the view plane of adjacent developments. (b) Cyclone blowers shall be screened by a wall, fence or landscape materials and shall be located below the fascia and/or roof line of the building. Further, they shall be located on the rear or "hidden" side of the building and shall be painted to match the surface to which attached, if visible. (c) Incinerator vents shall be located on the rear or "hidden" side of the building in all cases. (d) Roof-mounted ventilators shall be a maximum of one and one-half (1-1/2) feet above the point to which attached and shall be painted or prefinished consistent with the color scheme of the building. (e) Gutters and downspouts shall be painted to match the surface to which attached unless used as a major design element, in which case the color shall be consistent with the color scheme of the building. College Business Park B-2260 28 11/05/91 (f) Vents, louvers, exposed flashing, tanks, stacks, overhead doors, rolling and "man" service doors shall be painted consistent with the color scheme of the building. 6.6 Parking Areas. Adequate off-street parking shall be provided to accommodate all parking needs of employees, visitors and company vehicles on the Lot, in a manner consistent with the Specific Plan and other applicable City requirements. The intent of this provision is to eliminate the need for any on-street parking. If parking requirements increase as a result of a change in use or number of employees, additional off-street parking shall be provided to satisfy the intent of this Section. The Committee shall evaluate the adequacy of proposed parking designs according to the following guidelines: (a) Required off-street parking shall be provided on the Lot of the use served, or on a contiguous Lot. (b) In addition to the guidelines set forth herein, parking requirements by land use, including size and number of spaces, aisle widths, access and arrangements, etc., shall conform to the Specific Plan and other applicable City requirements. If there is more than one (1) shift, the number of employees on the largest shift shall be used in determining parking requirements. (c) Parking shall not be permitted between the public street pavement and the property line. (d) Parking areas must conform to setback requirements as set forth in the Specific Plan and applicable zoning requirements. (e) All side-yard areas not facing streets may be used in total for automobile parking and landscaping when not in conflict with the Specific Plan or other applicable City requirements. College Business Park B-2260 29 11/05/91 (f) Automobile parking areas shall be provided with entrances, exits and aisles adequate to provide safe movement of vehicles and must comply with City standards and/or guidelines. (g) Parking spaces shall be adequately sized to accommodate oversized vehicles which might be operated from and stored at the subject Lot. 6.7 Setback Lines. The setback lines shall be as set forth in the Specific Plan. No structure or Improvement of any kind, and no part thereof, shall be placed on any Lot closer to the property line than permitted by such setback requirements. All setbacks shall be measured from the property line, provided, where the top of the slope extends beyond the setback lines, the set back shall be measured from the top of the slope pursuant to the provisions of the Hillside Ordinance. Notwithstanding the foregoing, the following Improvements may be allowed within such setbacks, with the approval of the Committee: (a) Steps and walks; (b) Paving and associated curbing, except that vehicle parking areas shall be in conformity with Section 6.6 of this Declaration; (c) Fences, except that no fence shall be placed within the street setback area unless specific written approval is given by the Committee and the City; (d) Landscaping; (e) Planters, not to exceed three (3) feet in height; and (f) Displays and signs identifying the Owner or Lessee, except that such displays are subject to specific City ordinances and must be approved by the Committee in writing. 6.8 Signs. All signs shall be subject to the prior approval of the Committee in writing pursuant to Article 4. Alf signs shall conform with the College College Business Park B-2260 30 11/05/91 Business Park Signage Manual prepared by Declarant, as approved by the City and all other governmental authorities. 6.9 Slope Areas. No Owner shall commence any construction on or engage in any development of any slope areas without the prior written approval of the Committee, and all such work shall be in conformance with the Landscape Design section of the Specific Plan. 6.10 Subdivision of Lots. No resubdivision of any of the Lots described in Recital A, or any merger or lot line or boundary adjustment affecting two or more Lots, shall be permitted without the written consent of the Board. In the event a resubdivision, merger, or lot line or boundary adjustment is so approved, each of the Lots created as a result of the lot split or resubdivision, shall be subject to this Declaration and the other Project Documents. 6.11 Storage and Loading Areas. In addition to the requirements set forth in the Specific Plan: (a) No materials, supplies or equipment, including company- owned or operated trucks, shall be stored in any area on a Lot except inside a closed building, or behind a visual barrier screening such area from the view of adjoining properties and/or a public street. Screening of storage areas shall be accomplished by the use of an opaque screening material, which may include walls, building, redwood slated chain link fences, or any combination thereof, to a minimum height of six (6) feet to screen the stored items, except that such height shall not exceed twelve (12) feet. All street frontage walls shall be of concrete tilt-up or solid masonry. Upon a written application to the Committee, the Committee may approve, in writing, a variance of said storage area requirements. (b) Loading areas shall not encroach into setback areas unless specifically approved by the Committee in writing, in its sole discretion. (c) Loading area doors and docks shall be set back and screened to minimize the effect from the street. Loading areas and College Business Park B-2260 31 11/05/91 docks shall not be closer than seventy (70) feet to the street property line, for front yard loading areas, unless specifically approved by the Committee in writing, in its sole discretion. Loading will be permitted to the rear of the setback line from that portion of a structure not fronting a street. Front yard loading areas must be screened by a concrete tilt-up wall textured or colored to match the main building. 6.12 Utilities. All telephone, electrical and other utility lines shall be installed underground, except that transformer or terminal equipment related thereto may be installed above ground if screened from view of adjacent streets or properties. No Owner shall enter into any contract or agreement with any City, county or other governmental agency or body or public utility with reference to sewer lines or connections, water lines or connections, or street improvements (including but not limited to curbs, gutters, parkways, street lighting or other utility connections, lines or easements) relating to the Property or any Lot without the prior written consent of the Committee. 6.13 Waste Disposal. No waste material, garbage or refuse shall be dumped, placed or allowed to remain on any Lot outside a permanent structure unless it is behind a visual barrier screening such area so that it is not visible from neighboring properties or public streets. All such waste, garbage and trash materials shall be kept in sanitary containers and shall be regularly removed from the Property and shall not be allowed to accumulate thereon. Industrial waste disposal shall be in a manner prescribed by the ordinances of the City and any other applicable governing agency. ARTICLE? REGULATION OF OPERATIONS AND USES 7.1 Permitted Uses. Unless otherwise specifically prohibited herein, permitted uses shall include those uses permitted by applicable City zoning and land use regulations, provided such use is performed or carried out entirely within a building that is so designed and constructed that the operations and uses comply with: (a) all Laws, as defined in Section 7.4; and (b) the provisions of this Declaration. Currently applicable City regulations of uses are set forth in the PM College Business Park B-2260 32 11/05/91 Zone Regulations, and the Specific Plan. If applicable law is less restrictive than the provisions of this Declaration, the more restrictive provision shall apply. 7.2 Prohibited Uses. Without limiting the provisions of Section 7.1 or any other provision of this Article, no Lot shall be used for any of the following activities or purposes: (a) Any use which, in the Board's sole and absolute discretion, is considered to be objectionable as an intrusion into the environment of sound, odor, visual effect or physical impact or that will disturb or tend to disturb the other Owners, Lessees or Occupants in the Business Park. (b) Any public or private nuisance; (c) Any use in violation of Sections 7.4 or 7.5; (d) Any use or operation that results in a discharge or release of Hazardous Materials (as defined in Section 7.5), on or under the surface of the Property or into the surface or ground waters of the Property, unless such discharge or release is in full compliance with all applicable federal, state and local laws, regulations, ordinances and permits; (e) Any use or operation that results in air emissions of pollutants or contaminants, unless such emissions are in full compliance with all applicable federal, state and local laws, regulations, ordinances and permits relating to air pollution control; (f) Any use that produces intense glare or heat, unless such use is performed only within an enclosed or screened area in a manner such that the glare or heat emitted will not be discernible from any property line of the Lot; (g) Any use that creates a sound pressure level in violation of any applicable governmental regulation; College Business Park B-2260 33 11/05/91 (h) Any use that creates a ground vibration that is perceptible, without instruments, at any point along any of the property lines of the Lot; (i) Residential uses; (j) Camping; (k) Mobile home sales and storage yards or mobile home, trailer or recreational vehicle parks or sale facilities; (I) Junk yards, auto dismantling operations or recycling facilities; (m) Distillation of bones; (n) Dumping, disposal, incineration or reduction of garbage, sewage, dead animals, refuse or spillage; (o) Saw or planing mills; (p) Manufacturing, excavation (if applicable) or production of cement, lime, asphalt, gypsum, fireworks, wood pulp or the like; (q) Production of fish products, sauerkraut, vinegar or the like; (r) Fat rendering; (s) Stockyards or slaughtering of animals; (t) Surface mining operations or commercial excavation; (u) Smelting of iron, tin, zinc or other ores; College Business Park B-2260 34 11/05/91 (v) Cemeteries; (w) Auto repair, automotive paint and body shops; (x) Drilling for and/or the removal of gas or oil, refining of petroleum or its products, or petroleum storage yards; or (y) Jail or honor farms; 7.3 Nuisances. No Owner, Lessee, or Occupant shall create or permit any public or private nuisance on any portion of the Business Park. All incinerators or other equipment for the storage or disposal of trash, garbage or refuse shall be kept in a clean and sanitary condition. No odors shall be permitted to arise therefrom so as to render any Lot or portion thereof unsanitary, unsightly, offensive or detrimental to any property in the vicinity or to the Occupants thereof. No use or operation shall be conducted in the Business Park which is noxious, offensive, unsightly or which may interfere with the quiet enjoyment of other Owners, Lessees and Occupants. 7.4 Compliance with Laws, Regulations, Permits or Certificates of Occupancy. No Owner, Lessee or Occupant shall permit any activity, use or operation on any portion of the Property in violation of any law, statute, rule, regulation, requirement, permit, ordinance or certificate of occupancy promulgated by any federal, state or local governmental entity with jurisdiction over the Property or any business, use or operation thereon (collectively, "Laws"). Each Owner, Lessee and Occupant shall, upon written notice from Declarant, or the Board, discontinue any use which is declared by any governmental entity having such jurisdiction to be a violation of any Law. Each Owner, Lessee and Occupant shall, immediately upon receipt from any governmental entity of an allegation violation of any Law, provide a copy of such allegation to the Board, notwithstanding such party's belief that meritorious defenses to such allegations exist. No representation is made that compliance with the use regulations specified in this Declaration will satisfy other legal requirements. 7.5 Hazardous Materials. Without limiting the provisions of Section 7.4: College Business Park B-2260 35 11/05/91 ^; ^ (a) Each Owner, Lessee or Occupant shall strictly comply with all Laws now or hereafter promulgated with respect to the use, generation, storage, transportation or disposal of hazardous, toxic or radioactive materials (collectively, "Hazardous Materials"). As used herein, "Hazardous Materials" shall include, but not be limited to, those materials identified as hazardous or toxic substances, materials or wastes pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. Section 9601, et seq.. the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901, et seq.. the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.. the California Hazardous Waste Control Act, California Health and Safety Code Section 25100, et seq.. the Carpenter-Presley-Tanner Hazardous Substance Account Act, Cal. Health & Safety Code Section 25300, et seq.. the Safe Drinking Water and Toxic Enforcement Act. Cal. Health & Safety Code Section 25249.5, et seq.. the Porter-Cologne Water Quality Control Act, Cal. Water Code Section 13000, et seq., any amendments to and any regulations promulgated pursuant to the foregoing, and any similar federal, state or local Laws. (b) No Owner, Lessee or Occupant shall discharge or release any Hazardous Material on or under the surface of the Property or into the surface or ground waters of the Property in violation of any Laws. (c) No Owner, Lessee or Occupant shall discharge any hazardous air pollutant regulated under the National Emissions Standards for Hazardous Air Pollutants by the United States Environmental Protection Agency. No Owner, Lessee or Occupant shall discharge any toxic air contaminant classified as such by the California Air Resources Board under the California Health and Safety Code. No Owner, Lessee or Occupant shall discharge any pollutant which would constitute a nuisance under the rules of the San Diego Air Pollution Control District. College Business Park B-2260 36 11/05/91 (d) Each Owner, Lessee or Occupant shall indemnify, hold harmless, protect and defend Declarant, the Board, the Association and each other Owner, Lessee or Occupant from and against all liabilities, losses, damages, costs and expenses directly or indirectly arising out of the generation, storage, disposal, release or discharge of Hazardous Materials or hazardous air pollutants by such party, including but not limited to, the cost of any required monitoring, investigation, clean up, removal, detoxification, preparation of plans or other remedial work. The strict compliance by an Owner, Lessee or Occupant with all Laws pertaining to Hazardous Materials shall not excuse such party from its obligation of indemnification pursuant to this Section. 7.6 Necessary Permits. Prior to commencement of any operation or use upon a Lot, each Owner, Lessee or Occupant shall demonstrate to the Board that he has obtained all necessary permits for the operation or use proposed by such party. 7.7 Access. Declarant or the Board, and their respective agents, shall have the right, but not the obligation to enter upon a Lot as provided in Section 12.2.2 for the purpose of inspecting the same, in order to assure compliance with all applicable Laws. In addition, Declarant or the Board may require disclosure of any applicable information relating to the applicable Laws or permits and any other evidence necessary to assure Declarant and the Board of an Owner's compliance with said Laws. 7.8 Rules and Regulations. Declarant has prepared Rules and Regulations relating to the use, management and maintenance of the Common Areas and the facilities and Improvements located thereon, and to the conduct of Owners and their Lessees, Occupants and guests with respect to the Property and other Owners. The Board shall have the right to amend, supplement or repeal any of the Rules and Regulations, from time to time. The Rules and Regulations, as so amended and supplemented, shall be binding on all Owners and their Lessees, Occupants and guests. In the event of any inconsistency between the Rules and Regulations and this Declaration, the Declaration shall govern to the extent of the inconsistency. College Business Park B-2260 37 11/05/91 **?; ARTICLE 8 RESERVATIONS OF EASEMENTS AND RIGHTS 8.1 Easements Over Common Areas. The Parkway Areas located outside the public right-of-way, and certain Drainage Easement Areas are owned by the Owners, as part of their respective Lots. Open Space Lots 24, 25 and 26 shall be conveyed to the Association. 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 Improvements, as necessary or appropriate to complete the improvement of such Common Areas pursuant to the Specific Plan, the conditions of approval of the Final Map, and other applicable governmental regulations and requirements. (b) There is hereby reserved to Declarant, the Association and their agents and representatives an easement over all Common Areas for the purpose of maintenance, repair, reconstruction, restoration 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 Parkway Areas outside the public right-of-way, for the benefit of Declarant, the Association and all Owners: (i) an easement 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 Drainage Easement Areas, for the benefit of Declarant, the Association and all Owners, an easement for drainage purposes. College Business Park B-2260 38 11/05/91 *3 (e) Declarant hereby grants to the Association, as Common Area, an easement over Open Space Lots 24, 25 and 26 for purposes of maintaining the Desilting/ Detention Basins, an access road between the Property and the Desilting/Detention Basin(s) and any temporary drainage facilities and temporary erosion control landscaping related thereto. The Common Areas, including all areas subject to the easements granted herein, shall be maintained by the Association as further described in Article 9. 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 9. 8.2 Easements of designated Hillside Areas. The designated Hillside Areas located on the Property are owned by the Owners, as part of their respective Lots. The designated Hillside Areas are subject to the following easements: (a) There is hereby reserved to Declarant an easement over the designated Hillside Areas for the purpose of grading and installation of landscaping, irrigation facilities, and other Improvements, as necessary or appropriate to complete the improvement of such designated Hillside Areas pursuant to the Specific Plan, the conditions of approval of the Final Map, and other applicable governmental regulations and requirements. (b) There is hereby reserved to Declarant, the Association and their agents and representatives an easement over the designated Hillside Areas for the purpose of maintenance, repair, reconstruction, restoration and landscaping, and as necessary to exercise the rights and to perform the duties set forth in this Declaration. 8.3 Transfer of Easement Rights. Prior to the date for commencement of maintenance of the Association of any portion of the Common Areas pursuant to Section 9.1, or the designated Hillside Areas pursuant to Section 9.2.1 Declarant shall transfer any necessary easements to the Association. College Business Park B-2260 39 11/05/91 8.4 Right of Entry 8.4.1 Common Area. Declarant, the Association, the Board, and their employees, agents, and contractors are hereby granted the right to enter upon the Common Areas and upon any other portion of the Property, to the extent reasonably necessary, to repair, improve, maintain and operate the Common Areas, and to exercise the rights and to perform the duties imposed by this Declaration on the Board or the Association. Such right of entry upon portions of the Property other than the Common Areas shall be exercised so as to interfere as little as reasonably possible with the possession, use and enjoyment of the Owner, Lessee or Occupant of such portion and shall be preceded by reasonable notice whenever the circumstances permit. The Association shall indemnify, hold harmless and defend the Owner of each Lot over which the foregoing easements are reserved from and against all damages, claims, losses and liabilities arising from or caused by the use of such Common Areas by the Declarant, Association, Owners, Lessees, Occupants or their guests. 8.4.2 Hillside Area. Declarant, the Association, the Board, and their employees, agents, and contractors are hereby granted the right to enter upon the designated Hillside areas and upon any other portion of the Property, to the extent reasonably necessary, to repair, improve, maintain and operate the designated Hillside Areas and to exercise the rights and to perform the duties imposed by this Declaration on the Board or the Association. Such right of entry upon portions of the Property other than the designated Hillside Areas shall be exercised so as to interfere as little as reasonably possible with the possession, use and enjoyment of the Owner, Lessee or Occupant of such portion and shall be preceded by reasonable notice whenever the circumstances permit. The Association shall indemnify, hold harmless and defend the Owner of each Lot over which the foregoing easements are reserved from and against all damages, claims, losses and liabilities arising from or caused by such entry. 8.5 Utility Easements. Declarant hereby reserves for its own use and benefit, and for the use and benefit of the Association and all Owners, easements for the location, installation and maintenance of utilities and drainage facilities of convenience or necessity as may be requested or required by Declarant, the College Business Park B-2260 40 11/05/91 Association or any Lot Owner. The Association shall have the authority to grant easements or rights-of-way for utilities over the Common Areas as necessary to serve the Common Areas and/or the Lots. The Owner of any Lot and any of his Lessees, Occupants or licensees shall have the right at all reasonable times to enter upon the land subject to said easements and to install, maintain, repair and service utilities and drainage facilities thereon for the use and benefit of his Lot. Provided, however, any such Person shall restore said land, at his own expense, as nearly as practicable, to the same condition as existed prior to such entry. The Owner of any Lot shall have the right to assign the benefit and use of any such easement to any public or private utility company, agency or district for the purpose of installing, operating and maintaining utilities or drainage facilities and enforcing the easement rights. For purposes hereof, "utilities" shall include electricity, gas mains and lines, water distribution lines, storm water sewers, sanitary sewers, telephone and telegraph cables and lines, and other similar or related facilities commonly regarded as utilities. No conveyance by Declarant of any Lot, or any interest therein shall be deemed to be a conveyance or release of the easements herein reserved, even though such conveyance purports to convey such Lot or Lots in fee simple or purports to convey Declarant's entire interest therein; but, notwithstanding the foregoing, Declarant reserves the right unto itself, from time to time, to release any segment or area from such reserved easements, provided that Declarant causes any utility or utilities existing therein to be relocated without expense to the users thereof and without any unreasonable interruption of any utility service furnished pursuant to the easement to be released. 8.6 Drainage. Declarant hereby reserves for itself and successive Owners, over areas of the Business Park, easements for drainage from slope areas and drainage ways from time to time constructed by Declarant. 8.7 Easements Reserved and Granted. Any easements referred to in this Declaration shall be deemed reserved or granted, or both reserved and granted, by reference to this Declaration in a deed to any Lot. College Business Park B-2260 41 11/05/91 ARTICLES MAINTENANCE AND USE OF COMMON AREAS 9.1 Management and Maintenance by Association. The administration of this Declaration as it applies to the Property and the Common Areas and the management of the Common Areas shall be vested in the Association. In order to implement the power of administration established by this Declaration and management of the Common Areas, the Association shall have the powers set forth in Section 2.3 of this Declaration and elsewhere in the Project Documents. The Association shall repair, restore, reconstruct, operate, maintain and manage the Common Areas and all facilities and Improvements located thereon in a first-class condition and a good state of repair, to the extent such areas are not maintained and controlled by the City or other governmental agency, district or public or private utility, except as otherwise set forth herein. Maintenance by the Association of each portion of the Common Areas 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 perform all such maintenance prior to completion of such Improvements on the Common Areas and shall continue to maintain any Common Areas or Improvements for as long as they are covered by a maintenance or warranty bond in favor of the City. The Association's maintenance function includes, but is not limited to, the following: (a) The maintenance of all Common Areas in accordance with the Specific Plan, the conditions of approval of the Final Map and other applicable governmental requirements; (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 the Conceptual. Landscape Plan and other specific landscape plans submitted to and approved by the City; (c) Clearing, grubbing and other maintenance of the Open Space Lots as required by the City or other governmental authorities, or as considered appropriate by the Board, but excluding any brush College Business Park B-2260 42 11/05/91 maintenance which is the obligation of an Owner pursuant to Section 11.1; (d) Removing all trash and refuse from the Common Areas; (e) Cleaning, repairing and replacing all paved areas 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. 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 10. The Association shall also be responsible for collecting assessments for, and for paying the costs of maintaining the Open Space Lots. 9.2 Maintenance of Open Space Lots. 9.2.1 Open Space Lots. The Association shall maintain the Open Space Areas, and the costs of such maintenance shall be allocated among the Lots included in the Property, and as such Lots may be adjusted or resubdivided from time to time, in the proportion the Maximum Building Area of each such Lot bears to the total Maximum Building Area of all such Lots. Such maintenance obligation shall include, but is not limited to, the repair, restoration, reconstruction, operation, maintenance and management of the Desilting/Detention Basins. The costs of such maintenance shall be allocated to the Owners of Lots included in the Property by means of assessments pursuant to Article 10. The foregoing costs allocated to Owners of Lots included in the Property shall be paid by the Association and recovered by means of assessments pursuant to Article 10. 9.2.1 Hillside Areas. The Association shall maintain the designated Hillside Areas, and the costs of such maintenance shall be allocated among the Lots included in the Property, and as such Lots may be adjusted or resubdivided from time to time, in the proportion the Maximum Building Area of College Business Park B-2260 43 11/05/91 each such Lot bears to the total Maximum Building Area of all such Lots. The costs of such maintenance shall be allocated to the Owners of Lots included in the Property by means of assessments pursuant to Article 10. The foregoing costs allocated to Owners of Lots included in the Property shall be paid by the Association and recovered by means of assessments pursuant to Article 10. 9.3 Maintenance Caused by Owners. Etc. The Association shall not be responsible for maintenance and repair of any Common Areas or Hillside Areas arising out of or caused by the willful or negligent act or omission of any Owner, or his Lessees, Occupants or guests, and such repairs or replacements shall be the responsibility of such Owner. If the Owner fails to perform such repairs and replacements within thirty (30) days after receipt of a written notice, and provided the Owner has been given an opportunity to be heard by the Board, orally or in writing, the Association shall have the right (but not the obligation) to make such repairs or replacements, and the cost thereof shall be charged to such Owner and his Lot or Lots as a Reimbursement Assessment as defined in Section 10.8. 9.4 Desiltinq/Detention Basins. In addition to the duties set forth in Sections 9.1 and 9.2, the Association shall have the following obligations and duties with respect to the Desilting/Detention Basins: (a) The Association shall repair, restore, reconstruct, operate, maintain, monitor and manage the Desilting/Detention Basins. (b) The Association shall conduct or cause to be conducted an inspection of the Desilting/Detention Basins in accordance with a schedule of inspection prepared by an engineer designated by the Board to ensure that such Basins are capable of operating at design capacity. (c) A separate line item shall be included in the Association Budget prepared pursuant to Section 10.4, setting forth the amount of money allocated to the maintenance and monitoring of the Basins. The Association shall budget an amount adequate to cover such maintenance and monitoring. College Business Park B-2260 44 11/05/91 9.5 Driveways. Each Owner shall have a right to construct, in accordance with Plans approved pursuant to Article 5, driveways and related Improvements over portions of such Owner's Lot designated as Common Areas on Exhibit " B;" provided, however, such Owner shall repair or replace all Common Area landscaping and irrigation and drainage facilities damaged in connection with such construction. 9.6 Common Area Restrictions. Use of the Common Areas shall be subject to: (a) the reserved rights described in Section 8.1, (b) the Rules and Regulations, and (c)the other provisions of this Declaration. Other than the work performed or approved by Declarant in connection with the development of the Business Park, Common Areas shall not be planted, altered, or improved, and nothing shall be removed therefrom without the written consent of the Board. 9.7 Signs. Subject to applicable governmental requirements, the Board may place and maintain on the Common Areas such signs as the Board may deem necessary in order to identify the Property, regulate traffic access and parking, facilitate use of the Common Areas, and protect the health, safety and welfare of all Owners, Lessees, Occupants, agents, employees and guests. 9.8 Assessment District; Dedication of Common Areas. Declarant or the Board shall have the right to cooperate with governmental entities to establish a special assessment district for improvement or maintenance of all or any portion of the Common Areas. Declarant or the Association shall have the right to dedicate or transfer, or grant an easement over, all or any portion of the Common Areas in which such party holds an interest to any public agency or authority or public or private utility, subject to such conditions as such party deems appropriate. 9.9 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 such damaged or destroyed areas to substantially the same condition as existed prior to such damage and the itemized cost of such work; and (b) determine the amount of all insurance proceeds available to the Association for the purpose of effecting such repair, reconstruction and restoration. If the insurance proceeds College Business Park B-2260 45 11/05/91 {0 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 9. ARTICLE 10 FUNDS AND ASSESSMENTS 10.1 Agreement to Pay Maintenance Assessments; Creation of Lien and Obligation. Declarant, for each Lot owned which is subject to assessment hereunder, hereby covenants and agrees, and each Owner of any Lot by his acceptance of a deed therefor, whether or not it shall be expressed in such deed, is deemed to covenant and agree, for each Lot owned, to pay to the Association: (a) annual Regular Assessments, as described in Section 10.6; (b) Special Assessments, as described in Section 10.7; (c) Reimbursement Assessments, as described in Section 10.8; and (d) such other assessments which the Board is authorized to levy pursuant to this Declaration. Assessments, together with interest, costs and reasonable attorneys' fees, shall be a charge on the land and shall be a continuing lien on the Lot against which each such assessment is made, which lien shall be effective upon recordation of a notice pursuant to Section 12.3.2. Each such assessment, together with interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the Owner of such Lot at the time it becomes due and payable. If more than one person or entity is the Owner of a Lot, the personal obligation to pay such assessment shall be joint and several. The personal obligation for delinquent assessments shall not pass to an Owner's successors in title, however, unless expressly assumed by them, but any lien created hereunder shall remain a charge against the Lot except as to bonafide purchasers or encumbrancers for value without notice and as set forth in Section 14.8. 10.2 No Waiver by Non-Use. No Owner may exempt himself from payment of assessments by waiver of the use or enjoyment of all or any portion of College Business Park B-2260 46 11/05/91 the Common Areas or by waiver of the use or enjoyment, or by abandonment, of his Lot. 10.3 Purpose of Assessments. Assessments levied by the Association shall be used to pay the Common Expenses (as defined in Section 1.11), in order to enhance, maintain and protect the desirability, attractiveness, and safety of the Business Park, and to reimburse the Association for the costs incurred in bringing an Owner into compliance with the Project Documents, and for any other purpose which in the reasonable judgment of the Association shall be for the common good of the Business Park. 10.4 Budgets. At least fifteen (15) days prior to the date for commencement of Regular Assessments pursuant to Section 10.6.2, and at least fifteen (15) 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 pro forma operating budget ("Budget") for such first or successive calendar year setting forth the estimated revenue and expenses on an accrual basis. The Budget shall include a reasonable allowance for contingencies, replacements and reserves. 10.5 Lots Subject to Assessment; Allocation of Assessments. All Lots within the Property, except the Open Space Lots, are subject to Regular Assessments and to Special Assessments. All assessments (except for Reimbursement Assessments described in Section 10.8) shall be allocated among the Owners in the proportion the Maximum Building Area of each Owner's Lot or Lots bears to the total Maximum Building Area of all Lots then subject to assessment under this Declaration. The Maximum Building Areas may be modified by Declarant as provided in Section 6.4. In the event of resubdivision of any Lot or a merger or lot line or boundary adjustment affecting two or more Lots, the Maximum Building Area of the original Lot or Lots shall be allocated among the resulting Lots as provided in Section 6.4, and the assessments for the original Lot or Lots shall be reallocated among the resulting Lots based upon the reallocated Maximum Building Area. College Business Park B-2260 47 11/05/91 10.6 Regular Assessments. 10.6.1 Purpose. Regular Assessments shall be used to defray the Common Expenses. 10.6.2 Date of Commencement of Regular Assessments. Regular Assessments shall commence, as to all Lots 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. The first Regular Assessments shall be adjusted according to the number of months remaining in the calendar year and shall be prorated for any partial month. 10.6.3 Establishment. Not more than sixty (60) days before the beginning of the first Regular Assessments hereunder and before the beginning of each calendar year thereafter, the Board shall meet for the purpose of establishing the Regular Assessment for the first or successive calendar year. At such meeting, the Board shall review the Budget prepared in accordance with Section 10.4, and written comments received from any Member and any other information available to it and, after making any adjustments that the Board deems appropriate, without a vote of the Members of the Association, shall establish the Regular Assessments for the forthcoming year. The Board shall give written notice of the Regular Assessments to each Owner promptly after establishment thereof. 10.6.4 Payment of Assessments. Regular Assessments shall be due and payable by the Owners to the Association in advance in four (4) equal quarterly installments, on or before the first (1st) day of January, April, July and October of each calendar year, or in such other manner as the Board shall designate. 10.7 Special Assessments. 10.7.1 Purpose. Special Assessments may be levied by the Board: (a) If the Board determines that the Regular Assessments are or will be insufficient to defray actual Common Expenses of the College Business Park B-2260 48 11/05/91 Association for a given year due to unanticipated delinquencies or cost increases or unexpected repairs, replacements or reconstruction of any Improvements in the Common Areas; (b) If funds are otherwise required for any authorized activity of the Association; or (c) For the purpose of defraying, in whole or in part, the cost of construction of any capital improvements deemed reasonably necessary by the Board for the benefit of the Business Park, provided that any such capital improvement assessment in excess of five percent (5%) of all assessments budgeted for that calendar year shall require approval by the vote or written consent of Members holding a majority of the total voting power of the Association Members, which majority shall include Declarant for so long as Declarant is a Class B Member. 10.7.2 Establishment. The Board shall determine the approximate amount necessary to defray the expenses set forth in Section 10.7.1, and, if the amount is approved by a majority vote of the Board, it shall become a Special Assessment; provided, however, that the Board may, in its discretion, pro- rate such Special Assessment over the remaining months of the calendar year or levy the full assessment immediately against each Lot. Any Special Assessment in excess of ten percent (10%) of the budgeted gross expenses of the Association for the calendar year in which a Special Assessment is levied shall require approval by Members holding a majority of the total voting power vote of the Association Members, which majority shall include Declarant for so long as Declarant owns any portion of the Property. 10.7.3 Time and Manner of Payment Special Assessments shall be due and payable within fifteen (15) business days after a Member receives written notice from the Board specifying the amount of the Special Assessment, unless the Board specifies in such notice a later date for payment. 10.8 Reimbursement Assessment. The Board may levy a Reimbursement Assessment against any Owner and such Owner's Lot or Lots to recover costs ("Noncompliance Expenses") incurred by the Association as a result of College Business Park B-2260 49 11/05/91 such Owner's willful or negligent acts or failure to comply with this Declaration, the Rules and Regulations or any other Project Documents, or to impose a fine or penalty pursuant to this Declaration. Assessments shall be due and payable within fifteen (15) business days after an Owner receives notice from the Board specifying the amount of the Reimbursement Assessment. 10.9 Non-payment of Assessments. Any assessment not paid within fifteen (15) days after the due date shall be delinquent and such nonpayment shall constitute a default by the Owner hereunder. 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 equal to ten percent (10%) of the delinquent account or $10, whichever is greater. In addition, the delinquent amount shall bear interest from the due date at the rate specified in Section 12.4. In the event of a default in the payment of any assessment, the remedies provided in Article 12 shall be available in addition to any other available legal or equitable remedies. 10.10 No Offsets. All assessments shall be payable in the amounts specified by the particular assessment, and no offsets against such amount shall be permitted for any reasons, including, without limitation, a claim that the Association is not properly exercising its duties of maintenance, operation or enforcement. 10.11 Transfer of Property. After transfer of any Lot within the Business Park, the transferring Owner shall not be liable for any assessment levied on his Lot after the date such Lot is transferred and written notice of such transfer is delivered to the Association. The transferring Owner shall remain responsible for all assessments and charges levied on his Lot prior to any such transfer. 10.12 Failure to Fix Regular Assessments. The omission by the Board to fix the Regular Assessments hereunder before the expiration of any calendar year, for the next year, shall not be deemed either a waiver or modification of any provisions of this Declaration or a release of any Owner from the obligation to pay the assessments or any installment thereof for that or any subsequent year, and the Regular Assessment fixed for the preceding year shall continue until new Regular Assessments are fixed. College Business Park B-2260 50 11/05/91 10.13 Association Funds. The assessments collected by the Association shall be deposited into two (2) separate accounts with a savings and loan association or bank selected by the Board, which accounts shall be clearly designated as: (a) the Maintenance and Operation Account, for maintenance and operation assessments, and (b) the Reserve Account, for reserves for contingencies and the repair and replacement of facilities and Improvements. The funds collected shall be deposited into the appropriate accounts and said accounts shall be separately maintained by the Association. Upon sale or transfer of any Lot by an Owner, the Owner's interest in such accounts shall be deemed automatically transferred to the successor Owner of such Lot. If the Board retains a professional management service, the Board may delegate the authority to deposit or withdraw funds to responsible representatives of such professional management agent. Said professional management agent may additionally be authorized to establish a common trustee account for deposit of assessments as collected. All funds shall be held in trust by the Association for the use and benefit of its Members and shall only be used for and applied to the specific purpose for each assessment as hereinafter set forth. 10.14 Books of Account. The Board shall maintain full, complete and correct books of account of the operation of the Business Park. Said books and records shall accurately detail the receipts and expenditures affecting the Common Areas, specifying and itemizing the maintenance and repair expenses of the Common Areas and any other expenses incurred. The books of account shall be available for inspection by any Lot Owner during reasonable business hours. Any Lot Owner, or its duly authorized representative, may at any time and at its own expense cause an audit or inspection to be made of the books and records of the Association for any period not previously audited. The Board may, at its option, cause an audit to be made at the Association's cost and expense. 10.15 Annual Statement. Within 120 days after the close of the Association's fiscal year, the Board shall prepare and distribute to each Member a balance sheet and operating (income) statement for the fiscal year, and a review of the financial statement of the Association, prepared in accordance with generally accepted accounting principles, if required under California Civil Code Section 1365. College Business Park B-2260 51 11/05/91 ARTICLE 11 MAINTENANCE. RESTORATION OF LOTS 11.1 Duty to Maintain. The exterior of all Improvements, the landscaping and the parking area, and all internal slopes on each Lot, other than Common Areas, shall be regularly repaired (including replacements where necessary) and maintained by each Owner in good, safe, sightly and well kept condition, in accordance with the approved plans and specifications for. such Lot (including, but not limited to, the landscape maintenance plan for the Street Setback Areas), this Declaration, the Rules and Regulations, the Specific Plan, and all other applicable City standards and regulations. Each Owner shall perform, at its sole expense, all brush maintenance on its Lot or on any adjacent Open Space Lot which is required by the City or any other governmental agency in order to maintain a clear area within a radius of such Owner's buildings. 11.2 Lateral Support. Each Owner shall maintain his Lot with sufficient landscaping and plantings so as to prevent any erosion upon his Lot which may result in damage to that Lot or to any adjacent Lot. No Owner shall perform any excavation upon his Lot that will result in damage to any adjacent Lot. 11.3 Damage and Destruction; Duty to Rebuild. If all or any portion of a Lot or any Improvement on any such Lot, other than within the Common Areas, is damaged or destroyed by fire or other casualty, it shall be the duty of the Owner of such Lot to: (a) rebuild, repair or reconstruct the Lot and the Improvements thereon in a manner which will restore them to a condition and appearance approved by the Committee and the City; (b) raze and remove the damaged Improvements, restoring the Lot to substantially its original unimproved condition; or (c) any combination of the above, in a manner satisfactory to the Committee. The Owner of any Lot on which damaged Improvements are located shall be obligated to proceed with all due diligence hereunder, and such Owner shall cause cleanup and/or reconstruction to commence within three (3) months after the damage occurs and to be completed within nine (9) months after damage occurs, unless prevented by causes beyond his reasonable control. 11.4 Insurance Obligation of Owners. Each Owner shall insure his Improvements against loss or damage by fire or by any other casualty, under the College Business Park B-2260 52 11/05/91 standard form of all risk insurance then in use in the State of California or under such other insurance as may be required under the terms of any Mortgagee encumbering his Lot. 11.5 Obligation to Pay Taxes. Liens. Each Owner shall pay, prior to delinquency, all real property taxes, assessments, special district charges and all other public, governmental, quasi-public or quasi-governmental charges which are or may become a lien upon the Owner's Lot and all other liens which may be or become superior to this Declaration or any amendments thereto. If any Owner fails to timely pay any lien or charge as provided herein, the Association shall have the right to cure such default. All costs and expenses, including attorneys' fees and costs, incurred by the Association in connection with said cure shall be a Noncompliance Expense and may be recovered by the Association as a Reimbursement Assessment against said Owner and his Lot as provided in Section 10.8. An Owner may contest the validity or amount of any taxes, assessments or charges and, in connection therewith, may defer payment thereof or pay under protest, provided that such Owner pays all taxes (including interest and penalties) which are determined to be due as a result of said protest and protects the property from any lien by posting an adequate surety bond. 11.6 Performance By Board. If any Owner or Lessee fails to maintain his Lot or any Improvements thereon in the manner required by this Declaration, the Board shall notify the Owner or Lessee in writing by registered mail that said Improvement or Lot is not being properly maintained. If such maintenance is not effected by the Owner or Lessee within thirty (30) days from the date of delivery of such notice to the Owner or Lessee, the Board, or its designee, shall have the right, to the extent permitted by applicable laws, to enter upon the Lot for the purpose of maintaining, restoring or repairing said Improvements or Lot. Entry upon the Lot by the Board or its agents or contractors for the purpose of maintenance or repair shall not be a trespass, and the Owner and all Lessees and Occupants shall be deemed to have consented thereto. The costs incurred by the Board in restoring, maintaining or repairing said Improvement or Lot, plus ten percent (10%) of such amount as an allowance for overhead, plus interest at the rate specified in Section 12.4 and the costs incurred by the Association to enforce this Article, including attorneys' fees and court costs, shall be payable to the Board upon demand, and shall be a charge on the land and a continuing lien on the Property on which the maintenance or repair was College Business Park B-2260 53 11/05/91 made. The total amount shall also be the joint and several personal obligation of the Owner and all Lessees and Occupants of the Site, except that the personal obligation for such amount shall not pass to successors-in-interest unless expressly assumed by them. Such sum shall also be a Noncompliance Expense and may be recovered by the Association as a Reimbursement Assessment against the Owner and his Lot pursuant to Section 10.8. If the Board elects not to perform or cause to be performed such work, the Association may pursue any other rights and remedies set forth herein or otherwise available bring an action at law or in equity to enforce the provisions of this Declaration. ARTICLE 12 ENFORCEMENT 12.1 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. 12.2 General Remedies. 12.2.1 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 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 of California Code of Civil Procedure Section 731(a) 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. 12.2.2 Inspection; Abatement by Declarant, Association. During reasonable hours, Declarant or the Association, or their duly authorized agents, shall College Business Park B-2260 54 11/05/91 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, if such violation or breach continues for a period of thirty (30) days after written notice thereof, to enter upon the Lot where such violations or breach exist, and summarily to take such action as may be necessary to bring such Lot or any Improvements or activities thereon into compliance with this Declaration, at the expense of the Owner, Lessee or Occupant thereof. 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. 12.2.3 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 of 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. 12.3 Collection of Assessments; Liens. 12.3.1 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 College Business Park B-2260 55 11/05/91 maintenance of a suit at law or in equity, or the Board may perfect a lien as described in Section 12.3.2 and foreclose such lien by judicial proceedings or through the exercise of the power of sale as described in Section 12.3.3. Suit to recover a money judgment for unpaid assessments may be maintained without foreclosing or waiving the lien rights. 12.3.2 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 in the Office of the County Recorder of San Diego County of a notice of delinquent assessment as provided in California Civil Code Section 1367. The notice of assessment shall not be recorded unless and until the Board or its authorized representative has delivered to the delinquent Owner(s), at least fifteen (15) days before recordation of the notice, a written notice of default and demand for payment, and unless the delinquency has not been cured within said fifteen (15) day period. 12.3.3 Notice of Default; Foreclosure. After at least fifteen (15) days after the recording 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 in the Office of the County Recorder of San Diego County 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 College Business Park B-2260 56 11/05/91 power to bid upon the Lot at the foreclosure sale and to acquire, hold, lease, Mortgage and convey the Lot. 12.3.4 Subordination of the Lien to First Mortgages. The lien of 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 in the Office of the San Diego County Recorder prior to the recordation of any such assessed lien, and the sale or transfer of any Lot pursuant to judicial or nonjudiciai 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 Mortgagee of a first Mortgage 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. 12.4 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. 12.5 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 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 court in such proceedings. 12.6 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. 12.7 Enforcement by City. City, following a determination of the City Engineer or Director of Utilities and Maintenance that the Association or Owners of College Business Park B-2260 57 11/05/91 Lots within the Business Park are in default of their duties and obligations to maintain the Common Areas and Common Area Improvements in the manner herein described, shall have the right, but not the obligation or duty, to enter upon such Common Areas and to undertake any work necessary to maintain such Common Areas or Common Area Improvements, all for the account of, and at the cost and expense of the Lot Owners. Provided, however, that prior to entering upon the Common Areas for the purpose of undertaking work necessary to maintain the Common Areas or Common Area Improvements, the City shall present to Declarant or the Association, as appropriate, a written notice which shall describe the nature of the default, shall set a date not less than ninety (90) days from the date of the presentation of such notices within which such time the Declarant or the Association may cure such default and shall specifically advise such entities that upon the failure to cure the default within the time frame set forth in the notice, the City may enter upon such Common Areas and perform such maintenance work to the Common Areas and Common Area Improvements all for the account of and at the cost and expense of said entities. Provided further, that in the event that any such person or entity, following receipt of such notice, wishes to protest determination of such default, such person or entity shall be entitled to appeal in writing such determination to the City Council within ten (10) days of the mailing of the notice. (a) In the event the City shall enter upon the Common Areas and undertake the work maintaining the Common Areas or the Common Area Improvements following a determination by the City that the Declarant or the Association is in default of its duties and obligations, then each Lot Owner shall be liable to and shall reimburse City his or her proportionate share of the costs associated with such default in accordance with Article 10. (b) In the event a Lot Owner shall fail to reimburse City for his or her proportionate share of any costs incurred by the City in curing said default, then City shall be entitled to make such reimbursable costs a lien upon the property of the Lot Owner benefited by such work by recording a notice that it has incurred reimbursable costs under the terms of this Declaration in the Official Records of the San Diego County Recorder. In addition to stating that costs have been incurred by City under the terms of this Declaration, such notice shall set forth the amount or such reimbursable costs, the date they became due and payable, and shall state that until paid such reimbursable costs shall bear interest at the legal rate from the date College Business Park B-2260 58 11/05/91 such reimbursable costs became due until the date such costs are paid. Moreover, in the event a Lot Owner fails to reimburse the City for his or her proportionate share of any costs incurred by the City in curing said default, then City may, in addition to recording a lien against such Lot, file a legal action seeking recovery of such costs; provided that, if the City is the prevailing party in such action, then City shall be entitled, as part of the settlement or judgment entered in such action, to interest on such costs computed at the legal rate plus reasonable attorneys fees in an amount agreed to or fixed by the court. In addition to the foregoing, the City may seek equitable relief. (c) City's right to enforce the duties and obligations of Declarant or the Association, shall not preclude the City from entering upon the Common Areas, performing any work necessary to maintain the Common Areas and Common Area Improvements located therein, and to assess the Lot Owners for the costs of such maintenance work, all in accordance with the provisions of any special assessment laws now or hereafter enacted by the State of California or City ordinance, and the provisions of this Section shall not constitute a waiver of the City's rights pursuant to such special assessment laws. ARTICLE 13 TERM, TERMINATION. AMENDMENT 13.1 Term of Declaration. Subject to the provisions of Section 13.2 hereof relating to amendments, this Declaration shall run with the land and shall continue in full force and effect until 5:00 p.m. on the twentieth (20th) anniversary of the date of recordation of this Declaration, and shall be automatically extended for successive ten (10) year periods unless, within six (6) months prior to the expiration of the initial term or any succeeding ten-year term, a written agreement executed by Owners owning seventy-five percent (75%) of the total acreage then subject to assessment hereunder is recorded in the Office of the County Recorder of San Diego County terminating this Declaration in whole or in part as to all or any portion of the Property. 13.2 Amendments. Any provision of this Declaration may be terminated, extended, amended or revoked ("amended") in any respect upon the College Business Park B-2260 59 11/05/91 vote or prior written consent of the Owners holding seventy-five percent (75%) of the total voting power of the Association. Provided, however, that so long as Declarant owns record fee title to any portion of the Property or for a period of fifteen (15) years from the date of recordation of this Declaration, whichever is shorter, no such amendment shall be effective without the prior written consent of Declarant. No such amendment shall be effective until a written instrument setting forth the terms thereof, and including a certification by the President of the Association that Owners holding the required voting percentage have consented thereto, is duly executed by the Board and Declarant, in the event of Declarant's approval is required. ARTICLE 14 GENERAL PROVISIONS 14.1 Assignment of Declarant's Rights and Duties. Any and all of the rights, powers and reservations of Declarant set forth herein may be assigned to any Person, provided such assignee agrees in writing to accept such assignment and to assume the duties of Declarant pertaining thereto. An assignee may succeed to the same rights, powers and reservations and be subject to the same obligations and duties as are herein given to and assumed by Declarant, as a successor Declarant, provided such assignee: (a) holds or acquires record title to all or any portion of the Property; and (b) Declarant (or a successor Declarant) executes and records a document which expressly names such party as successor Declarant and assigns the rights and 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 obligations and, upon the recording of such notice, even if it is not specified therein, said powers and obligations shall immediately vest in the Association. If at any time Declarant ceases to exist and has not made such an assignment, the rights and obligations of Declarant shall automatically vest in the Association. 14.2 Common Interest Subdivision. It is intended that California Civil Code Sections 1351 et seq. apply to this Declaration and the Business Park to the extent required by law. To the extent California Civil Code Section 1351 et seq. is College Business Park B-2260 60 11/05/91 applicable, the Business Park shall be a planned development type of common interest subdivision. 14.3 Constructive Notice and Acceptance. Each Owner, Lessee and Occupant, and every other person who now or hereafter owns or acquires any right, title, estate or interest in or to any portion of the Property, by acceptance of a deed, lease or other interest therein, shall be conclusively deemed to have consented and agreed to hold such title, leasehold or interest subject to and to comply with every covenant, condition and restriction contained herein and to the rights of Declarant hereunder, whether or not any reference to this Declaration is contained in the deed, lease or other instrument by which such person acquired said interest in the Property., Every provision of this Declaration, regardless of its characterization herein, shall be deemed a covenant, condition, restriction, reservation, easement or servitude, as the circumstances may require to permit the enforcement thereof and to carry out the intent of this Declaration. 14.4 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. 14.5 Exhibits. All exhibits referred to herein are attached hereto and incorporated by reference. 14.6 Governing Law. This Declaration shall be governed, construed and enforced in accordance with the laws of the State of California. 14.7 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. 14.8 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 12.3.4 above. However, if any College Business Park B-2260 61 11/05/91 portion of the Property is sold under a foreclosure of any Mortgage or is conveyed to the party so secured 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. 14.9 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. 14.10 Notices. Any notices required or permitted herein shall be in writing and either personally delivered or mailed, postage prepaid, by registered or certified mail, return receipt requested, addressed as follows: If intended for an Owner, to the last known address of the Owner. If intended for Declarant, to Huntington Beach Company, Attn: Project Manager, 18300 Von Karman Avenue, Suite 850, Irvine, California 92715. Mailing addresses may be changed at any time upon written notification to the Board. Notices shall be deemed received on the date of personal delivery or evidenced by receipt three (3) business days after mailing. 14.11 Notification of Sale. Concurrently with the consummation of a sale or transfer of any Lot or portion thereof whereby the transferee becomes a record title owner thereof, or within five (5) business days thereafter, the transferee shall notify the Board of such sale in writing. Such notification shall set forth the College Business Park B-2260 62 11/05/91 name of the transferee and the transferor, the location of the Property, the nature of the interest transferred, the transferee's mailing address, and the date of sale. Prior to receipt of such notification, any and all communications required or permitted to be given by the Board or the Association shall be deemed to be duly given to the transferee if duly and timely given to said transferee's transferor. 14.12 Number; Gender. As used herein, the singular shall include the plural and the masculine shall include the feminine, wherever the context so requires. 14.13 Severability. The provisions of this Declaration shall be deemed independent and severable, and if any competent court holds any provision to be invalid, partially invalid or unenforceable, such invalidity or unenforceability shall not affect or invalidate any other provision. 14.14 Waiver. Neither Declarant, the Association or any Member thereof, nor their successors or assigns, nor any Owner or Lessee shall be liable to any other Owner, Lessee or Occupant of any portion of the Property subject to this Declaration by reason of any mistake in judgment, negligence, nonfeasance, action or inaction in regard to the enforcement or failure to enforce the provisions of the Declaration or any portion thereof. Every Owner, Lessee or Occupant, by acquiring his mterest in the Business Park agrees that he will not bring any action or suit against Declarant, its successors and assigns or the Association or any member thereof, from time to time to recover any such damages or to seek equitable relief. This Section 15.14 shall not prevent the enforcement of any legal or equitable right of one Owner against another. College Business Park B-2260 63 11/05/91 IN WITNESS WHEREOF, Declarant has executed this Declaration of Covenants, Conditions and Restrictions for College Business Park as of the date first set forth above. HUNTINGIO'N BEACH COMPANY, a California corporation.<?,-'/ j 1 /••- By: / Its: T College Business Park B-2260 64 11/05/91 STATE OF CALIFORNIA COUNTY OF ORANGE )SS On November 26.1991 before me, Laurie A. Cragg, a Notary Public for the State, of California, duly commissioned and sworn, personally appeared L. M. Netherton and M. K. Mayer, personally known to me to be the persons who executed the within instrument as Vice-President and Assistant Secretary on behalf of Huntington Beach Company, the corporation therein named, and acknowledged to me that the corporation executed it. WITNESS my hand and official seal. LS. OFRCIALSEAl LAURIE A. CRAGG NOTARY PUBLIC CALIFORNIA PRINCIPAL OFFICE IN ORANGE COUNTY My Commission tip. Apr 29,1994 Notary Public^ My Commission College Business Park B-2260 65 11/5/91 MAP NO .-12T03 SCALE I" =200'CARLSBAD TRACT NO. 85-17 SHEET 4 OF 12 SHEETS INDEX MAP SCALE I"-200'