Loading...
HomeMy WebLinkAboutCT 98-10; Carlsbad Raceway Business Park; Tentative Map (CT) (5)V «4M5G DOC# 2005-0917104 Recording Requested By When Recorded Return To: HECHT SOLBERG ROBINSON GOLDBERG & BAGLEY LLP Mr. David W. Bagley, II 600 West Broadway, Eighth Floor San Diego, California 92101 OCT 24, 2005 9:36 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 149.00 PAGES: 48 2005-0917104 DECLARATION ESTABLISHING COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS For FENTON RACEWAY BUSINESS PARK Carlsbad, California Fenlon Racnmy Buiinen flwi lOflO/OS 017010-0196 271967.9 MM5T TABLE OF CONTENTS PAGE RECITALS I ARTICLE 1 DEFINITIONS 3 ARTICLE 2 MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 6 ARTICLE 3 COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION 6 ARTICLE 4 ARCHITECTURAL AND DEVELOPMENT REVIEW COMMITTEE 9 ARTICLE 5 LAND USE 10 ARTICLE 6 REGULATION OF IMPROVEMENTS 12 ARTICLE 7 OPERATIONS GENERALLY 16 ARTICLE 8 COMMON AREA AND OPEN SPACE AREAS 20 ARTICLE 9 GRANT OF EASEMENTS 22 ARTICLE 10 MAINTENANCE OF PARCELS 24 ARTICLE 1! MAINTENANCE OF COMMON AREA 25 ARTICLE 12 INSURANCE AND INDEMNITY 26 ARTICLE 13 ENFORCEMENT AND REMEDIES 29 ARTICLE 14 ASSIGNMENT 30 ARTICLE 15 OWNERSHIP OF PARCELS .31 ARTICLE 16 APPROVAL OF OWNERS AND NOTICES 32 ARTICLE 17 MODIFICATION PROVISION 32 ARTICLE 18 NOT A PUBLIC DEDICATION 33 ARTICLE 19 EMINENT DOMAIN 33 ARTICLE 20 TERM OF DECLARATION 33 ARTICLE 21 MISCELLANEOUS 34 EXHIBITS: EXHIBIT "A" Legal Description of the Property EXHIBIT "B" Final Map EXHIBIT "C" Net Pad Acreage, Assessment Percentages, and Voting Power EXHIBIT "D" Open Space Areas EXHIBIT "E" Sign Areas EXHIBIT "F" Street Landscaping Areas and Detention Basin Areas Fenton Racevray Businat fork10/20/05 017010-01% 271967.9 L4LJ58 DECLARATION ESTABLISHING COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS For FENTON RACEWAY BUSINESS PARK This Declaration Establishing Covenants, Conditions and Restrictions and Grants of Easements for Fenton Raceway Business Park ("Declaration") is made as of October 10, 2005 by FENTON RACEWAY LLC, a California limited liability company ("Declarant"), with reference to the following: RECITALS A. Declarant owns that certain real property located in the City of Carlsbad, County of San Diego, State of California, more particularly described on Exhibit "A" attached hereto and by this reference made a part hereof (the "Property"). B. Declarant intends to develop the Property as a mixed-use common interest development described in Section 1351(k) of the California CIVIL CODE as a "Planned Development" known as Fenton Raceway Business Park. C. Pursuant to Planned Industrial Permit No. 01-01 (the "Planned Industrial Permit"), Tentative Tract Map No. CT 98-10 (the "Tentative Map"), and related project approvals, the Property was approved by the City of Carlsbad ("City") for industrial, office and commercial uses, as more particularly described in the Planned Industrial Permit. D. The Property was subdivided by Final Subdivision Map No. 15013 of Carlsbad Raceway Business Park, in the City of Carlsbad, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, May 3, 2005 (the "Final Map"). A reduced copy of Sheet 4 of the Final Map, which shows the lots created by the Final Map, is attached to this Declaration as Exhibit "B". E. The Final Map describes the Property as twenty-eight (28) subdivided lots. Lots 1 through 25, inclusive, are planned to be developed for industrial, office and commercial uses. Lots 26 through 28, inclusive, are subject to an open space easement granted on the Final Map and will be maintained as open space. F. Declarant has formed the Fenton Raceway Business Park Property Owners Association, a California nonprofit mutual benefit corporation (the "Association"). The Owners of the Parcels (defined 017010-0196 271967.9Feraon Raceway Business Ar* 10/20/05 -I- MM53 below) within the Property shall be the members of the Association. The Association shall own and maintain the Common Area (defined below). G. Each Owner or Occupant shall maintain all Improvements on the Owner's or Occupant's Parcel(s), including withoutlimitation the portions (if any) of the Owner's or Occupant's Parcel(s) designated as Street Landscaping Areas (defined below). Both Declarant and the Association shall have the right to enter onto any Parcel to maintain or repair Street Landscaping Areas on the Parcel at the Parcel Owner's expense if the Owner fails to do so, as more particularly described in this Declaration. H. Declarant wishes to subject the Property to certain covenants, conditions and restrictions in accordance with a common plan for the benefit of Declarant and any and all fiiture owners of the Property or of a Parcel in the Property. The purposes of the Declaration are to ensure proper development and use of the Property; to protect the owner of each Parcel against any improper development and use of surrounding Parcels which might depreciate the value of the Parcel; to prevent the erection on the Property of structures built of improper design or materials; to encourage the erection of attractive improvements; to prevent haphazard and inharmonious improvements; to secure and maintain proper setbacks from streets and adequate free spaces between structures; to enhance and protect the value, desirability and attractiveness of all the Property; and in general to provide adequately for a high type and quality of improvement of the Property in accordance with a uniform plan of development. I. Declarant may lease Parcels to Occupants. Therefore, with respect to the rights, duties and obligations between Declarant and Occupants under leases, and, in the event fee title to one or more of said Parcels is conveyed by Declarant to another Person (such Person thereby becoming an "Owner"), with respect to the rights, duties and obligations between such other Owner(s) on the one hand and Occupants under leases on the other hand, Declarant intends that the provisions of this Declaration are made pursuant to Section 1469 and Section 1470 of the California CIVIL CODE; and, in the event fee title to one or more of said Parcels is conveyed by Declarant to another Person (such Person thereby becoming an "Owner"), with respect to the rights, duties and obligations among such other Owner(s) and Declarant (or, in the event Declarant has conveyed fee title to all of said Parcels, with respect to the rights, duties and obligations among the Owners of said Parcels), Declarant intends that the provisions of this Declaration will be restrictive covenants made pursuant to Section 1468 of the California CIVIL CODE. NOW, THEREFORE, Declarant hereby certifies, declares and establishes the following general plan for the protection and benefit of the Property, and hereby fixes the following protective covenants, conditions and restrictions upon each and every ownership interest in the Property, under and pursuant to which covenants, conditions and restrictions each ownership interest in the Property shall be hereafter held, used, occupied, leased, sold, encumbered, conveyed and transferred. Each and all of the covenants, conditions and restrictions set forth in this Declaration are for the purpose of protecting the value and desirability of and shall (i) inure to the benefit of all of the Property, and (ii) run with and be binding upon and pass with the Property and each and every ownership interest therein and each and every occupancy interest therein meeting all of the requirements of Section 1468, Section 1469 and Section 1470 of the California CIVIL CODE. 01701<W)I96 271967.9Feitton Raceway Business ftnfc 1IV2(V05 -2- L4MB0 ARTICLE 1 DEFINITIONS In addition to any other terms defined in this Declaration, the following definitions shall apply unless otherwise indicated: "Application" - Any plans, specifications and other documentation required to be submitted to the Committee pursuant to the provisions of Article 6. "Architect" - A Person holding a certificate to practice architecture in the State of California under authority of Division 3, Chapter 3 of the California BUSINESS & PROFESSIONS CODE or any successor legislation thereto. "Articles" - The Articles of Incorporation of the Association. "Assessment Percentage" -The percentage of the regular and special assessments of the Association payable by an Owner of a Parcel, based on the net pad acreage of the Parcel, as set forth on Exhibit "C". "Association" - Fcnton Raceway Business Park Property Owners Association, a California nonprofit mutual benefit corporation. "Board" - The Board of Directors of the Association. "Bylaws" - The Bylaws of the Association. "City" - The City of Carlsbad, California, a municipal corporation. "Committee" - The Architectural and Development Review Committee created pursuant to Article 4. "Common Area" - The Detention Basin Areas and the Sign Areas. The Common Area shall be deemed "common area" as defined in Section 1351(b)of the California CIVIL CODE. "Condominium Plan" - A "condominium plan" as defined in Sectionl351(e) of the California CIVIL CODE. "Condominium Project"-A "condominium project" as defined in Section 1351(0 of the California CIVIL CODE. "Declarant" - FENTON RACEWAY LLC, a California limited liability company ("Fenton") and its successor-in-interest (defined below). As used in this definition, a "successor-in- interest" of Fenton shall mean a Person which, through a purchase or acquisition of stock or partnership interest(s), membership interest(s), amalgamation, consolidation, reorganization, dissolution, merger or similar transaction (as opposed to a purchase, transfer or conveyance of one or more Parcels), becomes vested with the rights and assumes the obligations of Fcnton, as "Declarant", pursuantto this Declaration, and any subsequent successor-in-intcrest of such a Person. "Declarant" shall also mean the transferee from Fenton or its succcssor-in-intcrest of one( i) or more 017010-0196 271967.9Fenton Raceway Susinot fork KWOTS -3- MMGl of the Parcels comprising the Property, provided Fcnton or its successor-in-interest assigns to such transferee the rights of "Declarant", and such transferee assumes the obligations of "Declarant", under this Declaration; any such assignment and assumption of the rights and obligations of "Declarant" shall be in writing and signed by Fenton or its succcssor-in-interest and the transferee in recordable form and shall be recorded by the transferee in the Office of the County Recorder of San Diego County, California. "Declaration" - This Declaration Establishing Covenants, Conditions and Restrictions and Grants of Easements for Fenton Raceway Business Park. "Design Guidelines" - The Fcnton Raceway Business Park Design Guidelines dated October 10,2005, and any other guidelines, rules and regulations which shall be prepared and issued from time to time (and which may be amended from time to time) by the Committee for the purpose of assisting Owners in preparing plans and specifications for Improvements and other plans, specifications and other materials (including designs for signs and the like) which arc subject to review by the Committee pursuant to this Declaration. "Detention Basin Areas" - Areas reserved for detention basins on portions of Lot 27 of the Final Map, as shown on the plat attached as Exhibit "F". " Final Map" - Final Subdivision Map No. 15013 of Carlsbad Raceway Business Park, in the City of Carlsbad, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, May 3, 2005. "Improvements" — Buildings, outbuildings, underground installations, slope and grade alterations, roads, curbs, gutters, storm drains, utilities, driveways, parking areas, fences, screening walls and barriers, retaining walls, stairs, decks, windbreaks, plantings, planted trees and shrubs, sidewalks, poles, signs, loading areas, docks and all other structures, land development or landscaping improvements of every type and kind. "Indemnitee" - "Indemnitee" shall have the meaning given in Section 6.8. "Lot" - A lot as described on the Final Map. "Member" - An Owner entitled to membership in the Association as provided in this Declaration. "Mortgage" - A Deed of Trust as well as a mortgage. "Mortgagee" - The beneficiary of a Deed of Trust as well as the mortgagee of a mortgage encumbering a Parcel. "Occupant" - Any Person from time to time entitled by right of ownership or under any lease or sublease to use and occupy any portion of a Parcel within the Property. ''Open Space Areas" - Lots 26, 27 and 28 of the Final Map, as shown on Exhibit "D", which Declarant plans to convey in fee to the City or its designcc or to a landscaping and maintenance district or other similar entity formed to maintain the Open Space Areas. 017010-01% 271967.9 Fenum Katfwoy Business fbrt KV2IV05 -4- 1414 62 "Owner" - Any Person (including Declarant) who from time to time holds fee title to any Parcel within the Property. Notwithstanding the foregoing sentence, in the event of a salc/lcaseback transaction of the type described in Section 15.1, the Seller/Lessee under such sale/leaseback transaction shall be deemed to be the "Owner" of such Parcel for the purposes of this Declaration so long as it retains the powers and obligations conferred and imposed by this Declaration as provided in Section 15.1. "Palomar Forum" - The Palomar Forum industrial development project located to the south of the Property. "Parcel" - Any separate legal lot or parcel which is a portion of the Property. Lots 1 through 28, inclusive, as shown on the Final Map comprise the initial Parcels subject to this Declaration. Any lot orparcel of real property andany condominium within a Condominium Project located on one or more Parcels created after this Declaration is recorded, whether created by a legal split, subdivision orparcelization of a Parcel, or by combination or merger of one or more Parcels, or the filing of a Condominium Plan on one or more Parcels shall be included in the definition of Parcel for purposes of this Declaration, whether or not such lot, parcel or condominium becomes legally effective after this Declaration is recorded; provided, however, that no lot or parcel created in violation of Section 7.6 below shall be considered a Parcel. In addition, any Parcel the boundary of which is changed by lot line adjustment or Condominium Plan amendment after this Declaration is recorded shall be included in the definition of Parcel for purposes of this Declaration. "Person" - An individual, partnership, firm, association, corporation, trust, governmental agency, administrative tribunal or any other form of business or legal entity. "Planned Industrial Permit" -Planned Industrial Permit No. 01-01, as it maybe amended from time to time. "Property" - All real property shown described on Exhibit "A". "Review Fee" - The filing and review fee accompanying an Application pursuant to Section 6.2. "Sign Areas" -Areas reserved for monument signs for Fenton Raceway Business Park (i.e., project-level signs and not signs for an individual Occupant of a Parcel) on portions of the Property, as generally depicted on the plat attached as Exhibit "E". If after approval of an Owner's site or design plan(s) for such Owner's Parcel, the actual location of the project-level signs is within the areas on such Owner's Parcel depicted on the plat attached as Exhibit "E", the location of the Sign Areas shall be the as-built location. If after approval of an Owner's site or design plan(s) for such Owner's Parcel, the project-level signs on such Owner's Parcel will not be located within the areas depicted on the plat attached as Exhibit "E", this Declaration shall be modified by an amendment changing the location of the Sign Areas as to such Owner's Parcel, which amendment shall require only the signatures of and acknowledgment by Declarant and such Owner. "Street Landscaping Areas" - Those portions of the Property depicted on the plat attached as Exhibit "F". The Street Landscaping Areas may be more particularly described later through easement reservations at such time as Declarant conveys fee title to the Parcel(s) containing Street Landscaping Areas to another Person, or through easement deeds. OI7010-OIK T71%7.9Fentoa Ra£f*ay Biuinai /font KV2CTO5 -5- MMG3 "Tentative Map" - Tentative Map No. CT 98-10, as it may be amended from time to time. "Voting Power" - The proportionate voting power of the Owner of a Parcel, based on the net pad acreage of the Parcel, as set forth on Exhibit "C". ARTICLE 2 MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 2.1 Membership. Every Owner of a Parcel which is subject to assessment by the Association shall be a Member of the Association. Membership shall be appurtenant to ownership of any Parcel subject to assessment, and membership shall not be separated from such ownership or transferred, pledged or alienated in any way, except that an Owner, upon giving written notice to the Association, may grant to a lessee of the Owner's entire Parcel pursuant to a lease the term of which exceeds five (5) years, a power coupled with an interest to act as the Owner's agent in all matters relating to the Association; any such power shall automatically terminate when the lessee's tenancy ends for any reason. Any attempt to transfer a membership in violation of this Section shall be void and shall not be reflected in the books and records of the Association. 2.2 Voting Rights. The Association shall have two (2) classes of voting membership: Class A. Class A Members shall be all Owners, except Declarant. The Owner of each Parcel shall have the Voting Power shown on Exhibit "C". When more than one (1) Person holds an ownership interest in any Parcel, all such Persons shall be jointly considered a single Member. The Voting Power for such Parcel shall be exercised as they among themselves determine, and the authorized voter shall be designated in writing signed by a majority of the co-owners. Class B. The Class B Member shall be Declarant. Declarant's Voting Power shall be five (5) times the Voting Power shown on Exhibit "C" for each Parcel owned by Declarant The votes of Class A Members and Class B Members shall be combined and counted together; the combined total votes shall be the total voting power of the Association. ARTICLE 3 COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION 3.1 Creation of Lien and Personal Obligation for Assessments. Declarant, for each Parcel owned within the Property, hereby covenants and agrees, and each Owner of a Parcel by acceptance of a deed therefor, whether or not so expressed in such deed, is deemed to covenant and agree, to pay to the Association: (a) annual assessments or charges, whichshall include an adequate reserve fund, forthe periodic maintenance, repair and replacement of the Common Area; and (b) special assessments, such assessments to be established and collected as provided in this Declaration. The annual and special assessments, together with interest, costs and reasonable attorney's fees, shall be a charge on the Parcel and shall be a continuing lien upon the Parcel against which each such assessment is made, the lien to be effective upon recordation of a notice of delinquent assessment. Each such assessment, together with interest, costs and reasonable attorney's fees, shall also be the personal obligation of the Person who was the Owner of such Parcel at the time the assessment fell due. 3.2 Purpose of Assessments. The assessments levied by the Association shall be used to enhance, maintain and protect the desirability, attractiveness and safety of the Property and for the 017010-0196 271967.9Failon Raceway Businea RiA 10/20/05 -6- L4L4BM improvement and maintenance of the Common Area, to pay the costs of the Association in performing its activities, and to reimburse the Association for the costs incurred in bringing an Owner into compliance with the Articles, Bylaws, Declaration and rules and regulations adopted by the Board 3.3 Annual and Special Assessments; Notice of Increase in Assessments. The Board shall levy annual and special assessments sufficient to perform the obligations of the Association as provided in the Declaration and Bylaws. The Association shall provide notice to the Owners by first-class United States Mail, postage prepaid, of any increase in annual or special assessments, which notice shall be given not less than thirty (30) days nor more than sixty (60) days before the increased assessment becomes due. Further, any increase in annual assessments shall comply with Section 1366 of the California CIVIL CODE. 3.4 Individual Special Assessments. The Association may also impose a special assessment against any Owner to reimburse the Association for costs incurred in bringing the Owner and the Owner's Parcel into compliance with the provisions of this Declaration, the Articles, the Bylaws and the rules and regulations of the Association, which assessment may be imposed upon the vote of the Board after notice and an opportunity for a hearing which satisfy the requirements of Section 7341 of the California CORPORATIONS CODE, as set forth in the Bylaws. 3.5 Rate of Assessment. The proportionate share of each Parcel for annual and special assessments (other than a special assessment levied against an Owner to bring the Owner or the Owner's Parcel into compliance with this Declaration, Articles, Bylaws or rules and regulations of the Board) shall be the Assessment Percentage set forth on Exhibit "C" attached. Assessments shall be collected on an annual basis or other periodic basis as determined by the Board. 3.6 Date of Commencement of Annual Assessments: Due Dates. The annual assessments shall commence for a Parcel on the earlier of (a) the first anniversary of the close of the escrow through which the Owner acquired the Parcel from Declarant; or (b) the date on which construction of all Improvements on the Parcel has been completed as evidenced by the issuance of a Certificate of Occupancy for those Improvements. The first annual assessment for a Parcel shall be adjusted according to the number of months and any partial month (prorated on the basis of a 30-day month) remaining in the calendar year. The Board shall fix the amount of the annual assessment against each Parcel at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due dates for the annual assessment shall be established by the Board. 3.7 Effect of Non-Payment of Assessments; Remedies of Association. (a) Any assessment made in accordance with this Declaration shall be a debt of the Owner of a Parcel from the time the assessment is due. Any assessment not paid within thirty (30) days after the due date, including reasonable fees and costs of collection and reasonable attorneys' fees, shall bear interest from thirty (30) days following the due date at the rate that is the lesser of (i) twelve percent (12%) per annum, or (ii) two percentage points per annum over the reference rate of Bank of America, N.T.& S.A. (or such other major national bank as may designated by the Board if Bank of America ceases to exist) in effect on the due date, but not greater than the maximum rate (if any) per annum allowed by law. The Association may bring an action at law against the Owner personally obligated to pay the assessment, and in addition thereto, or in lieu thereof, may foreclose the lien against the Parcel. (b) Any assessment not paid within thirty (30) days after the due date shall be delinquent. The amount of any such delinquent assessment plus costs of collection, late charges, 017010-0196 2719(7.9Fenton Raceway duiinets /hnt HVZOrtJS -7- LIMG5 penalties, interest and attorneys' fees, shall be and become a lien upon the Parcel when the Association causes to be recorded in the Office of the County Recorder of San Diego County, California, a Notice of Delinquent Assessment, which shall state the amount of such delinquent assessment and such other charges thereon as may be authorized by this Declaration, a description of the Parcel against which the same has been assessed, the name of the record owner of the Parcel and, in order for the lien to be foreclosed by non-judicial foreclosure, the name and address of the trustee authorized by the Association to enforce the lien by sale. The Notice of Delinquent Assessment shall be signed by the person designated by the Association for that purpose or, if no one is designated, by the President of the Association. Upon payment of the delinquent assessment and charges in connection with which the Notice of Delinquent Assessment has been recorded, or other satisfaction thereof, the Association shall cause to be recorded a further notice stating the satisfaction and the release of the lien thereof. (c) Such lien may be enforced by sale by the Association after failure of the Owner to pay such assessment in accordance with its terms, such sale to be conducted in accordance with the provisions of Section 2924, Section 2924b and Section 2924c of the California CIVIL CODE applicable to the exercise of powers of sale in mortgages or in any other manner permitted by law. The Association shall have the power to purchase the Parcel at the foreclosure sale and to hold, lease, mortgage and convey the same. Suit to recover a money judgment for unpaid assessments, interest and attorney's fees may be commenced and maintained without foreclosing or waiving the lien securing the same. (d) Any sale or transfer of any Parcel pursuant to this Section 3.7 shall not disturb the possession, or otherwise diminish the rights 01 enlarge the obligations, of any Occupant under any then-existing lease. 3.8 Subordination of the Lien to First Mortgages. The lien of assessment pursuant to this Declaration shall be subordinate to the lien of any first Mortgage upon any Parcel, and the sale or transfer of any Parcel pursuant to judicial or nonjudicial foreclosure of a 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 Parcel from lien rights for any assessments thereafter becoming due. Where the Mortgagee of a first Mortgage or other purchaser of a Parcel obtains title to the same as a result of foreclosure, such acquirer of title, its successors and assigns, shall not be liable for the share of assessments chargeable to such Parcel which became due prior to the acquisition of title to such Parcel by such acquirer, except for a share of such charges or assessments resulting from a rcallocation of such charges or assessments which are made against all Parcels. 3.9 Estoppel Certificate. The Association shall furnish or cause an appropriate officer to furnish, within fifteen (15) business days after written request therefor by any Owner, a certificate signed by an officer of the Association setting forth whether the assessments on a specified Parcel have been paid. A properly signed certificate of the Association with respect to the status of assessments on a Parcel is binding upon the Association as of the date of its issuance. 3.10 Personal Liability of Owner. No Owner may exempt itself from personal liability for assessments, nor any part thereof, levied by the Association, nor release the Parcel it owns from the liens and charges of assessments pursuant to this Declaration, by waiving the use and enjoyment of the Common Area and facilities thereof, or by abandonment of its Parcel(s). 017010-0196 271967.9 Fution Raceway Business AzHt MM66 ARTICLE 4 ARCHITECTURAL AND DEVELOPMENT REVIEW COMMITTEE Declarant hereby creates an architectural and development review Committee, which shall be organized as follows: 4.1 Committee Composition. The Committee shall be comprised of from one (1) or three (3) Persons; however, the number of members may be increased by resolution of the Board. Members of the Committee need not be Owners. The Association is specifically authorized to reasonably compensate a professional property manager, architect, or similar professional Person for service as a member of the Committee. 4.2 Alternate Members. There shall also be 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 such member's unavailability or disability. 4.3 Appointment. So long as Declarant owns a Parcel, Declarant shall have the right to appoint all members and alternate members of the Committee. After Declarant has conveyed all the Parcels to Owners, the Board shall have the right to appoint all members and alternate members of the Committee. 4.4 Removal. The right to remove any member or alternate member of the Committee shall be and is hereby vested solely in Declarant, for so long as Declarant owns a Parcel, and shall vest in the Board after Declarant has conveyed all the Parcels to Owners. 4.5 Terms of Office. The term of all Committee members appointed shall be one (1) year. Any new member appointed to replace a member who has resigned or has been removed shall serve such member's unexpired term. Members whose terms have expired may be reappointcd. 4.6 Resignations; Vacancies. Any member of the Committee may, at any time, resign from the Committee upon written notice to the Board. 4.7 Duties and Appeals. It shall be the duty of the Committee to perform the functions required of it pursuant to this Declaration; to consider and act upon each Application which is submitted to it pursuant to the terms of this Declaration; to enforce the Design Guidelines; and to perform all other duties delegated to it by the Board or imposed upon it by this Declaration. So long as Declarant owns a Parcel, all decisions of the Committee shall be final. After Declarant has conveyed all the Parcels to Owners, any Owner may appeal any decision of the Committee to the Board. 4.8 Meetings. The Committee shall meet as often as it, in its sole, absolute and unfettered discretion, considers necessary or proper to perform properly its duties and obligations pursuant to this Declaration. The Committee shall keep written records of all actions the Committee takes. 4.9 Design Guidelines. The Committee shall, from time to time, and in its sole, absolute and unfettered discretion, adopt and amend the Design Guidelines. The Design Guidelines shall interpret and implementthe provisions of this Declaration by setting forth (i) the standards and procedures for Committee review; and (ii) the guidelines for Improvements, which shall include, but not necessarily be limited to, guidelines for the architectural design of Improvements, site plans, floor plans and exterior elevations, the size and location of buildings (including setback requirements), the height of buildings (including architectural features), the location and pitch of slopes, requirements for grading, excavation and drainage, 017010-0196 271967.9Fciuon Raceway Business fork 10W05 -9- MMBT the location and capacity of facilities for utilities, parking areas, loading areas and docks, trash areas (including compactor pads), landscaping designs and irrigation plans, color schemes, signs, exterior lighting, and finishes and materials for use in the Property. The Design Guidelines shall supplement this Declaration and the controls established by applicable zoning, the Planned Industrial Permit and applicable building, fire and other governmental ordinances, codes, rules and regulations; and of the foregoing, the more restrictive shall apply. 4.10 Exercise of Rights. Exercise of the Board's right of appointment and removal, as set forth in this Declaration, shall be evidenced by the Board's recording among the Committee's regular records a declaration identifying each new Committee member appointed and each member replaced or removed from the Committee. 4.11 Variances and Special Permits. (a) Variances. The Committee is hereby authorizedand empowered to grantreasonable variances from the provisions of this Declaration, or any portion hereof, in order to overcome practical difficulties and to prevent unnecessary hardship in the application of the provisions contained herein. The Committee shall have no obligation to grant variances, and the Committee shall not grant a variance which would in its reasonablejudgment materially injure any of the Parcels or Improvements in the Property. (b) Specially Permitted Operations and Uses. The Committee is also authorized and empowered to specially permit operations or uses which are neither specifically authorized nor specifically prohibited by this Declaration. In considering whether to specially permit an operation or use in a specific case, the Committee shall take into consideration the effect of such operations or uses on other property subject to this Declaration and upon the occupants thereof. Any such approval or disapproval shall be in writing. (c) Compliance with Laws. No variance or special permit granted by the Committee shall excuse the Owner seeking the variance or special permit from obtaining all required govern- mental approvals and otherwise conforming with all applicable laws, ordinances, rules and regula- tions, including but not limited to the Planned Industrial Permit, of any governmental agency or political entity having jurisdiction over the Property. ARTICLE 5 LAND USE 5.1 General. The Parcels shall be used only for the purposes set forth in the Planned Industrial Permit and the Design Guidelines, as those documents may be amended from time to time. The Improvements to be constructed within the Property shall be used, if at all, for commercial or industrial purposes of the type typically found in first-class integrated mixed use business centers located in the San Diego County, California, area. All work to be done or installed or constructed within the Property, and all operations in the Property, shall conform to every applicable requirement of law or duly constituted governmental authority having jurisdiction, including, but not limited to, requirements pertaining to health, welfare or safety of employees and the public. Every Occupant shall conduct its activities in conformity with all applicable laws, ordinances, rules and regulations of each governmental authority having jurisdiction, and in such a manner as not to constitute a nuisance or create unreasonable interference with other Occupants and their customers and business invitees. 017010-OI96 271967.9 Fentoit Raceway Business Fbtk 10/20/05 -10- MM68 5.2 Prohibited Operations and Uses. No use or operation will be made, conducted or permitted on or with respect to all or any part of any Parcel or Improvement which is obnoxious to, or out of harmony with the development or operation of the business conducted on any other Parcel or on other sites in the general vicinity of the Property. Included among the uses or operations which are prohibited because of their obvious detrimental effect on the general appearance of the Parcels and their conflict with the reasonable standards of appearance and maintenance required by Declarant and the Board, are uses or operations which produce, or are accompanied by the following characteristics: (a) Any public or private nuisance; (b) Any vibration, noise, sound or disturbance that is objectionable due to intcrmittence, beat, frequency, shrillness orloudness; (c) Except lighting of the Common Area, any lighting which is not shielded and confined within Parcel boundaries; (d) Any air or water pollution in violation of applicable laws, ordinances, rules, regulations or permits; (e) Any emission of odorous, noxious, caustic or corrosive matter or gas, whether toxic or non-toxic; (0 Any unusual litter, dust, dirt or debris, except as generated during construction of Improvements; (g) Any unusual firing, explosion or other damaging or dangerous hazard, including, but not limited to, storage, display or sale of explosives or fireworks; (h) Any franchise motel, hotel, or other short term transient occupancy facility; (i) Any apartments, multi-family housing, low-income or other subsidized housing; (j) Any mobile home or trailer court, labor camp, junk yard, stock yard, distillation of bones, or raising, storing, slaughtering or disposing of animals of any kind; (k) Any drilling for, excavation, refining or removal of earth materials, oil, gas, hydrocarbon substance, water, geothermal steam or any other subsurface substance of any nature whatsoever, exceptas part of normal grading operations in connection with construction of approved Improvements; (1) Any dumping, disposal, incineration or reduction of garbage or reuse of the same, other than handling or reducing such garbage in a reasonably clean and sanitary manner; (m) Any auction, public sale or other auction house operation conducted outdoors; (n) Any commercial excavation of building or construction materials; and (o) Any smelting of iron, tin, zinc or other metals or ores. 017010-0196 371967.9Fentoit Raceway Business Fbrt IOT1VOS -11- L4M69 The foregoing list is intended to be descriptive and is not intended to be inclusive. Nothing in Section 5.2(j) of this Declaration shall be construed in and of itself to limit or restrict the ability of any biotechnology or medical research user from raising, storing or otherwise maintaining laboratory animals or from engaging in activities reasonably related thereto, subject to such user's compliance with the other provisions of this Declaration. ARTICLE 6 REGULATION OF IMPROVEMENTS 6.1 Approval of Application Required. No Improvement shall be constructed, reconstructed, rebuilt, erected, placed, altered, maintained or permitted to remain in the Property (a) unless the Improvement conforms with all applicable federal, state and local laws, ordinances, rules and regulations; and (b) until plans, specifications and other documentation required by the Design Guidelines for the Improvement ("Application") have been submitted to and approved in writing by the Committee. Each Application, including all exhibits and supporting materials and documentation, must be submitted in duplicate. 6.2 Filing Fee. Asa means of defraying its costs and expenses, the Committee may institute and require that a reasonable filing and review fee ("Review Fee") accompany an Application. The initial schedule of Review Fees is set forth in the following schedule: (a) If an Application is prepared by an Architect, the Review Feeshall be Two Hundred Fifty Dollars ($250) per building per Parcel. (b) In al 1 other cases, the Review Fee shall be Five Hundred Dollars ($500) per building per Parcel. (c) If an Application is resubmitted, the Committee may require an additional Review Fee in an amount not to exceed One Hundred Dollars ($100) for each resubmission. (d) The schedule of Review Fees may be modified from time to time by the Committee to reflect increased costs and expenses or changed circumstances, such as, but not limited to, inflation. 6.3 Basis for Approval. The Committee shall have the right to disapprove an Application submitted to it in the event any part of the Application: (a) is not in accordance with this Declaration or the Design Guidelines (or both); or (b) is incomplete; or (c) is not in compliance with the applicable governmental approvals and regulations for the Property; or (d) any combination of the foregoing. The Committee shall not unreasonably withhold its approval of an Application submitted to it, butmay condition its approval on the satisfaction of one or more conditions set forth in writing. In this regard, the Committee may base its approval or disapproval on criteria which may include, but are not limited to, the following: (i) the adequacy of the building locations and dimensions on the Parcel; (ii) the adequacy of the parking to be provided; (iii) conformity and harmony of external design with neighboring structures; (iv) effect of location and proposed use of proposed Improvements on neighboring Parcels and the types of operations and uses thereof; (v) relation of topography, grade and finish ground elevation of the Parcel being improved to that of neighboring Parcels; (vi) proper facing of main elevation with respect to nearby streets; (vii) adequacy of screening trash facilities and mechanical, air conditioning or other rooftop installations; (viii) adequacy of landscaping; (ix) effect of the added square footage of proposed Improvements on the overall limitation on permitted square footage of building area under the Planned Development Permit, as described in Section 6.9(h) of this Declaration; and (x) conformity of the Application to the purpose and general plan and 0170104196 271967.9Faaon faeovav Business Art itwo/os -12- 141470 intent of this Declaration. No Application shall be approved which does not provide for the underground installation of all utility services. Notwithstanding approval by the Committee, no Application shall be deemed approved unless it provides for safety or any other control as set forth by local, state, federal or other governmental agencies. Upon approval, the Committee shall furnish, within fifteen (15) business days after written request therefor by the Owner of the Parcel submitting the Application, a letter from the Committee confirming that the Application has been approved. 6.4 Result oflnaction. The Committee shall approve or disapprove an Application within thirty (30) days after receipt. Notwithstanding anything to the contrary in this Article 6, if the Committee fails either to approve or disapprove an Application within such thirty (30)-day period, then it shall be conclusively presumed that the Committee has approved the Application. One(l)setof the Application shall, with the approval or disapproval of the Committee endorsed thereon, be returned to the Owner submitting it, and the other set shall be retained by the Committee for its permanent files. In the case of a conditional approval of an Application, the written conditions shall accompany the Committee's written conditional approval. 6.5 Proceeding With Work. Upon the Committee's approval of an Application pursuant to this Article 6, the Owner to whom the approval is granted and delivered, shall, as soon as practicable, satisfy all conditions thereof (if any) and diligently proceed with the commencement and completion of all approved construction, refmishing, alterations, excavations and landscaping so that no Improvement remains in a partly-finished condition any longer than reasonably necessary for completion thereof. In addition, each Owner shall cause all work to be as non-disruptive as practicable to the Property and the guests, invitees, tenants, employees and Owners who use the Property. Each Owner shall disrupt traffic flow and parking as little as possible during construction and shall clean up daily any construction debris to the extent reasonably practicable. In all cases, work shall be commenced within one (1) year following the date of such approval, except such time period shall be extended for so long as such commencement is rendered impossible or would result in great hardship due to action of the elements, fire or other casualty, war, acts of terrorism, riot, labor dispute, inability to procure or general shortage of labor or material in the normal channels of trade, delay in transportation, delay in inspections, governmental action or moratorium or any other cause beyond the reasonable control of the Owner so obligated, whether similar or dissimilar to the foregoing, financial inability excepted. If work is not commenced within one (1) year following the date of such approval (as such period may be extended for delays beyond the reasonable control of the Owner pursuant to the preceding sentence), then the approval given pursuant to this Article 6 shall be deemed revoked; provided, however, upon written request made prior to the expiration of said one (1) year period, the Committee may, in its sole, absolute and unfettered discretion, extend the time for commencing work. 6.6 Completion of Work. Construction, refmishing, alteration or excavation of any Improvements previously approved under this Article 6 shall be completed within two (2) years following the date of such approval, except such time period shall be extended for so long as such completion is rendered impossible or would result in great hardship due to action of the elements, fire or other casualty, war, acts of terrorism, riot, labor dispute, inability to procure or general shortage of labor or material in the normal channels of trade, delay in transportation, delay in inspections, governmental action or moratorium or any other cause beyond the reasonable control of the Owner so obligated, whether similar or dissimilar to the foregoing, financial inability excepted. Failure to comply with this Section 6.6 shall constitute a breach of this Declaration and subject the defaulting Owner or Owners to all enforcement procedures set forth in this Declaration or any other remedies provided by law or in equity. 6.7 Estoppel Certificate. The Committee shall deliver to any Owner an estoppel certificate within fifteen (15) business days following receipt of a written request therefor. If the Committee does not OITOIO-OI* 271967.9Faacn Racnny Biumeu Part KV2OT5 -13- have an as-built survey of the Owner's Parcel in its files, then any such request shall be accompanied by an ALT A map of survey or a certified as-built survey of the Owner's Parcel. The estoppel certificate shall certify that as of the date of the certificate (a) all Improvements made or work done on or within the Owner's Parcel comply with this Declaration, or (b) such Improvements or work do not so comply, in which event the certificate shall identify the non-complying Improvements and shall set forth the cause or causes for such non-compliance. Any lessee, purchaser or encumbrancer in good faith for value shall be entitled to rely on the certificate with respect to the matters set forth therein, such matters being conclusive as between the Committee and all such subsequent parties in interest. 6.8 Indemnity and Limitation of Liability. Neither Declarant, the Association, the Board nor the Committee, nor any member of the Board or the Committee, nor any agents, employees or contractors of Declarant, the Association, the Board or the Committee (individually or collectively, "Indemnitee") shall be liable for any liability, damage, loss, cost, expense or prejudice suffered, incurred or claimed by any Owner who submits an Application or by any other Person (including any other Owner). Each Owner who submits an Application shall forever hold each and every Indemnitee harmless for any liability, damage, loss, cost, expense or prejudice suffered, incurred or claimed by such Owner, and shall forever indemnify, defend, protect and hold each Indemnitee harmless for any liability, damage, loss, cost, expense or prejudice suffered, incurred or claimed by any other Person (including any other Owner), arising from, out of or in connection with (i) any defects in any plans, drawings, specifications or other documentation submitted in any Application, revised or approved in accordance with this Declaration, or for any structural or other defects , in any work done accordingto suchplans, drawings, specifications orother documentation; (ii)thc approval . or disapproval of any Application, whether or not defective; (iii) the construction or performance of any work, whether or not constructed or performed pursuant to an approved Application; (iv) the development of any Parcel within the Property; or (v) any combination of the foregoing. 6.9 Limitations on Improvements. All limitations contained in this Declaration supplement . the controls established by applicable zoning, the Planned Industrial Permit andapplicable building, fire and other governmental ordinances, codes, rules and regulations; and of the foregoing, the more restrictive shall apply. (a) Landscaping. Every Parcel on which a building is constructed in the Property shall be landscaped by the Owner in accordance with the Application approved by the Committee pursuant to this Article 6. Landscaping for each Parcel, as approved by the Committee, shall be installed before the earlier of (i) the date on which the first Occupant occupies the building on the Parcel; or (ii) the date of substantial completion of the building; provided, however, the Committee may, in its sole, absolute and unfettered discretion, approve in writing another final date of landscape installation. As used in this Section, "substantial completion" shall mean the date on which final City inspection is obtained for the building shell. Once installed, landscaping in the Property shall be maintained, repaired and replaced as provided in Sections 10.1 and 11.1 of this Declaration. In addition, the Association and each Owner's maintenance responsibilities shall be as set forth by the approved landscaping plan on file at the City Planning Department. Maintenance responsibility for the "mini-park" located west of Melrose Drive, which shall serve employees of the Property and Palomar Forum, shall be shared with Palomar Forum based on the percentage of industrial pad area in each development, pursuant to a cost sharing agreement entered into or to be entered into by Declarant and to be recorded in the Office of the County Recorder of San Diego County, California. 017010-0196 271967.9Fcnan Rj>cr*ay Business Fbr* KWIV05 -14- MMT2 (b) Signs. Except for the entry monumentation and signage described in the Design Guidelines and street and traffic control signs, no sign, billboard or other advertising which is visible from a public street shall be erected, placed or maintained within the Property without written approval by the Committee, which may withheld in its sole, absolute and unfettered discretion. (c) Parking Areas. The Committee shall have the authority to disapprove any Application for the construction of any building on a Parcel in the Property if the Application does not provide for paved parking on the Parcel in compliance with applicable ordinances, rules and regulations of the City, the Design Guidelines and the Planned Industrial Permit, If parking requirements increase as a result of changes in use in the Property, then additional parking shall be provided by the Owner(s) whose change in use of a Parcel resulted in the additional parking requirements. Parking requirements and traffic circulation patterns on a Parcel may be modified by the Committee as a condition to the approval of an Application for the Parcel if such parking requirements and/or traffic circulation may have a material adverse impact on other Parcels in the Property. (d) Exterior Lighting. Exterior lighting shall conform to the Design Guidelines and shall not be of such intensity, size, color or location as to be a nuisance to Owners or the public. (e) Utility Lines and Antennas. No sewer, drainage or utility lines, cables or wires or other devices for the communication or transmission of electric current, power or signals (including, but not limited to, telephone, television, microwave or radio signals) shall be constructed, placed or maintained anywhere in or upon any Parcel other than within buildings or structures unless contained in underground conduits; provided, however, transformers and terminal equipment related thereto may be installed above ground if screened from view of adjacent streets and Parcels in a manner satisfactory to the Committee. No antenna, satellite dish or disc for transmitting or receiving telephone, television, microwave or radio signals shall be placed on any Parcel unless (i) such antenna, dish or disc, whether on the ground or on a building, is screened from view of adjacent streets and Parcels in a manner satisfactory to the Committee; and (ii) the prior written consent of the Committee is obtained. Nothing contained in this Section shall prohibit the erection or use of temporary power or telephone facilities incidental to the construction or repair of Improvements on any Parcel. No Owner shall enter into any contract or agreement with the City, the County of San Diego or any other governmental agency or entity or public utility with respect 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 Parcel without the prior written consent of the Committee, which consent shall not be unreasonably withheld. (f) Excavation and Underground Utilities. No excavation shall be made except in connection with construction of an Improvement, and upon completion thereof, exposed openings shall be back filled and disturbed ground shall be graded, leveled and restored to its original or approved similar condition. (g) Environmental Mitigation Measures. The development of each Parcel shall comply with the environmental mitigation measures set forth in City Planning Commission Resolution 5024, dated October 17, 2001. (h) Total Building Square Footage Monitoring Obligations. The total square footage permitted within the Property shall be limited to 1,411,286 square feet of building area. "Building 017010-0196 271967.9 Fenlon Raceway Btuineu fbrli --15- MMT3 area" for purposes of this Section 6.9(h) means the total ground area of the Property occupied by any building or structure as measured from the outside of its surrounding external walls or supporting members. Building area includes exterior structures such as stairs, arcades, bridges, permanent structural elements protruding from buildings such as overhanging balconies, oriel windows, stories which overhang a ground level story, garages and covered carports. Excluded from the building area are roof eaves extending less than thirty inches from the face of any building, awnings, open parking areas, structures under thirty inches in height and masonry walls not greater than six feet in height such as wing-walls, planter walls or grade-separation retaining walls. Prior to building permit submittal for any Improvement on any of Lots 1 through 25, inclusive, the Association shall review the plans and ensure that a tabulation of total square feet to date is provided. The tabulation of total square feet shall be shown on the building plan set; otherwise, building plans will be rejected by the City. The Association shall ensure that each of Lots 1 through 25, inclusive, is guaranteed a share of the total building area. 6.10 Article Not Applicable to Declarant. The provisions of this Article 6 shall not apply to Declarant's constructing any Improvements on any Parcel or Parcels; and neither the Board nor the Committee shall have any authority or right to approve or disapprove any construction undertaken by Declarant. Notwithstanding the foregoing, any construction undertaken by Declarant shall comply with the use restrictions set forth in Section 5.2 and with the Design Guidelines. ARTICLE? OPERATIONS GENERALLY 7.1 Slope and Drainage Easements. (a) The Owner of each Parcel will permit free access by Owners of adjacent or adjoining Parcels, by the Association and by Declarant to slopes or drainageways located on the Owner's Parcel which affect such adjacent or adjoining Parcels when such access is essential for the maintenance of permanent stabilization on said slopes, or maintenance of the drainage facilities for the protection and use of property other than the Parcel on which the slope or drainageway is located. (b) No Owner shall in any way interfere with the established drainage pattern over the Owner's Parcel from adjoining or other Parcels, and each Owner shall make adequate provisions for proper drainage in the event it is necessary to change the established drainage over the Owner's Parcel. For the purpose of this paragraph, "established" drainage is defined as the drainage which occurred at the time the overall grading of each Parcel was completed by Declarant. (c) Upon completion of final grading of a Parcel, all surface drainage shall be directed to a public street or into the underground drainage system; no surface drainage shall be directed across any portion of an adjoining Parcel without the consent of the Owner of the adjoining Parcel. (d) The party accessing an Owner's Parcel pursuant to Section 7.1 (a) shall be subject to the following additional provisions. Prior to accessing a Parcel, the Owner, the Association or Declarant seeking access on the Parcel shall provide no less than three (3) days prior written notice to the Owner of the Parcel upon which access is sought (unless in the event of an emergency in which case no such notice shall be required). The party accessing an Owner's Parcel shall not suffer or permit to be enforced against that Parcel or any other part thereof, any mechanic's, materialman's, contractor's or subcontractor's lien arising from, due to or as a result of such party's activities on that Parcel. Such party also shall indemnify, protect, defend and hold the Owner of that Parcel harmless 0170104196 271967.9 Potion Raceway Burinea ftart 10WD5 -16- MMTM from and against all claims, expenses, liabilities, loss, damage and costs, including any actions or proceedings in connection therewith and including reasonable attorneys' fees, incurred in connection with, arising from, due to or as a result of the death of or any accident, injury, loss or damage to any Person or loss or damage to the property of any Person that occurs on, and any mechanic's, materialman's, contractor's or subcontractor's liens that are imposed upon such Owner's Parcel, which are caused by such party's access onto and activities upon such Owner's Parcel. 7.2 Parking Areas. (a) Except as may be required by City, the parking requirements specified in the Planned Industrial Permit shall be considered adequate to accommodate all parking needs for the vehicles of Owners, Occupants and their employees, visitors and customers whose activities are related to the Property and its authorized uses. (b) No commercial truck is permitted to be parked on any Parcel unless hidden from view from other Parcels within the Property and from public streets by attractive visual barriers. Notwithstanding the immediately preceding sentence, commercial trucks may park for the purpose of loading and unloading on all Parcels; provided, however, reasonable restrictions concerning permitted times for parking, loading and unloading commercial trucks, which may be applicable to one or more Parcels, may be adopted by the Board. "Commercial truck" for purposes of this Section 7.2(a) includes any service, delivery, refrigerated, box, landscaping/utility, bucket, derrick, rack, stake body, refuse, cement, platform/flatbed, low boy and logger trucks. (c) No charge of any kind shall ever be made for ingress to, egress from or parking in the Property, unless ordered by governmental authority. If so ordered, to the extent permitted by law, any such charge shall not be collected from customers and invitees but shall be prorated among the Owners and paid by them as an Association assessment. If the governmental authority does not permit such a treatment of the charge, but instead requires that it be collected from customers or invitees, the Association shall cause such charge to be collected and shall cause the amount received, less collection expenses, to be credited against assessments. 7.3 Storage and Loading Areas. Subject to Board approval, which maybe withheld in its sole, absolute and unfettered discretion: (a) No materials, supplies or equipment, including any trucks, shal J be stored in any area on a Parcel, except inside a closed building or on a temporary basis behind an approved visual barrier which screens such areas from the view of adjoining Parcels and public streets. (b) Loading areas and docks shall be set back and screened to minimize the visual and noise effects from the street. All loading areas shall be hidden from view from public streets by visual barriers approved by the Board. Notwithstanding the foregoing, it may not be practical or feasible for all loading areas and docks to comply with this restriction, in which event, as to those loading areas and docks, the Board shall have the right to designate hours for loading and unloading and the rules reasonably necessary to minimize the visual and noise effects thereof. 7.4 Utility Lines. All storm drains, utility lines, transformers and meters shall be maintained under the terms of this Declaration in a safe and good working condition by the party otherwise responsible therefor. No grantee of a utility easement shall in the use, construction, reconstruction, operation, maintenance or repair of any storm drains, utility lines, transformers and meters in any way unreasonably OI70ICMH96 271967.9Feitton Ra£tway Biuinftt fiiHc IOTO/05 -17- interfere, obstruct or delay the business of the grantor of said easement or any other Owner, or the public access to and from said business. 7.5 Inspection. The Association, Declarant and their authorized representatives may from time to time, after three (3) days prior written notice to the Owner, at any reasonable hours, enter upon and inspect any Parcel, or any portion thereof, or the exterior of the Improvements thereon, to ascertain compliance with this Declaration, but without obligation so to do or liability therefor. 7.6 No Re-zoning. Permit Amendments or Re-subdivision. No Person shall apply for or obtain any change in the zone classification of a Parcel or any amendment to the Planned Industrial Permit, and no Parcel shall be subdivided or re-subdivided, without the prior written approval of Declarant, which may be withheld in Declarant's sole, absolute and unfettered discretion. The foregoing prohibition shall not apply to Declarant. Declarant shall have the right at any time, and from time to time, to seek and obtain changes in the zone classification of Parcels, amendments to the Planned Industrial Permit, conditional use permits or other special permits, or the resubdivision or consolidation of one or more Parcels; provided, however, such changes, amendments, resubdivision or consolidation does not materially impact an Owner's current use of such Owner's Parcel, which use is consistent with the provisions of this Declaration. Notwithstanding that any condominium within a Condominium Project created by the filing of a Condominium Plan is generally included within the definition of Parcel for purposes of this Declaration, the creation of a Condominium Project on any Parcel or Parcels pursuant to Section 135!, e< seq. of the California CIVIL CODE shall not constitute a subdivision or resubdivision of a Parcel which is prohibited by the provisions of this Section. No Parcel shall be used for residential purposes. 7.7 Hazardous Materials. Each Owner covenants to do as follows: (a) At all times and in all respects comply with all federal, state and local laws, ordinances and regulations, including, but not limited to, the Federal Water Pollution Control Act (33 U.S.C. § 1251, etseq.), Resource Conservation & Recovery Act (42 U.S.C. §6901, et seq.), Safe Drinking Water Act (42 U.S.C. §3000f, etseq.), Toxic Substances Control Act (15 U.S.C. §2601, et seq.), the Clean Air Act (42 U.S.C. §7401, et seq.), Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601, et seq.), California HEALTH & SAFETY CODE (§25100, etseq.; §39000, etseq.), California Safe Drinking Water & Toxic Enforcement Act of 1986 (California HEALTH & SAFETY CODE §25249.5, et seq.), California WATER CODE (§ 13000, et seq.), and other comparable state and federal laws, currently in force or enacted in the future ("Hazardous Materials Laws"), relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, disposal or transportation of any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic substances" under any such laws, ordinances or regulations (collectively, "Hazardous Materials"). (b) At its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses, and other governmental and regulatory approvals required for its or its Occupants' use of the Property, including, without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the Property. Except as discharged into the sanitary sewer in strict accordance and conformity with all applicable Hazardous Materials Laws, no Person shall cause any Hazardous Materials removed from the Property to be removed and transported except solely by duly licensed haulers toduly licensed facilities for final disposal of such materials and wastes. Each Owner, Occupant and user shall in all respects handle, treat, deal with 01701041% 271967.9 Fenton Raceway Btuvuss fork . _ 10/20/05 ' I o- I4MT6 and manage any and all Hazardous Materials in, on, under or about the Property in total conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon transfer of possession of a Parcel or leased premises, such transferor shall cause all Hazardous Materials to be removed from the Parcel or leased premises and transferred and transported for use, storage or disposal in accordance with and compliance with all applicable Hazardous Materials Laws. (c) Each Owner shall immediately notify the Association in writing of: (i) any enforcement, cleanup, removal or other governmental or regulatory action instituted, completed or threatened pursuant to any Hazardous Materials Laws; (ii) any claim made or threatened by any person against the Owner, the Owner's Parcel or any building thereon relating to damage, contribution, cost recovery compensation, loss or injury resulting from or claimed to result from any Hazardous Materials; and (iii) any reports made to any environmental agency arising out of or in connection with any Hazardous Materials in or removed from the Owner's Parcel or any building thereon, including any complaints, notices, warnings or asserted violations in connection therewith. Each Owner shall also supply to the Association as promptly as possible, and in any event within five (5) business days after such Owner first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations, relating in anyway to the Owner's Parcel, any building thereon or the Owner's use thereof. Upon the request of any Owner, the Association shall provide.such Owner with copies of any notices, reports or other information received by the Association pursuant to this subsection. (d) Each Owner shall indemnify, defend, protect, and hold the Association, each other Owner and each other Owner's partners, employees, agents, attorneys, successors and assigns, free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses or expenses (including attorneys' fees), for death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by (i) the presence in, on, under or about the Property or the Owner's Parcel or any building thereon caused by the Owner, or discharge by the Owner in or from the Property or the Owner's Parcel or any building thereon, of any Hazardous Materials, or (ii) the Owner's use, analysis, storage, transportation, disposal, release, threatened release, discharge or generation of Hazardous Materials to, in, on, under, about or from the Owner's Parcel or any building thereon, or (iii) the Owner's failure to comply with any Hazardous Materials Law. Owner's obligations under this Section 7.7(d) shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary repair, cleanup or detoxification or decontamination of the Property or any building thereon, or the preparation and implementation of any closure, remedial action or other required plans in connection therewith. For purpose of this Section 7.7, any acts or omissions of Owner or Owner's lessee or by employees, agents, assignees, sublessees, contractors or subcontractors of Owner or Owner's lessee or others acting for or on behalf of Owner or Owner's lessee (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to Owner. 7.8 Encroachment. In the event the wall of a building constructed on any Parcel within the Property inadvertently encroaches onto an adjoining Parcel, and provided that such encroachment does not exceed a horizontal extension of eight inches (8") and docs not materially interfere with the development and use of such Parcel, then the Owner of the Parcel into which such encroachment hasoccurred shall be deemed to have granted to the encroaching Owner an easement for such encroachment, which easement shall continue for so long as the encroaching structure remains standing; provided, however, at the request of the Owner of either Parcel affected by such encroachment, a formal parcel line adjustment shall be undertaken, with the cost thereof to be borne by the encroaching Owner. 017010-0196 271967.9Featoa Raceway Business ftnt -19- M L| "77 7.9 Payment of Taxes. (a) Each Owner shall pay or cause to be paid prior to delinquency the real estate taxes and assessments levied against its Parcel or Parcels, including any and all real property taxes and other special taxes and assessments levied or assessed against that portion of the Common Area lying within the Owner's Parcel or Parcels. (b) In the event a Parcel is not segregated for tax purposes, each Owner shall pay its pro rata share of the taxes and assessments of a tax bill which includes all or a portion of its Parcel based on a fraction, the numerator of which is the area of the Parcel to the extent covered by the tax bill, and the denominator of which is the total area included within the total tax bill. (c) An Owner shall have the right, at its own cost and expense, and in its own name, to contest or protest or seek to have reviewed, reduced, equalized or abated any real property tax or other special tax or assessment levied upon its Parcel by first paying such tax or assessment and thereafter filing a claim for refund or pursuing such other remedy as may then be available under and in accordance with California law. The Owners who are not parties to the proceeding for refund (or other applicable proceeding) shall join with the protesting Owner and sign any and all documents, applications, petitions, instruments or complaints necessary for any such proceeding; provided, however, that any such proceeding shall be carried on by the protesting Owner at its sole cost and expense, and that upon final determination of any such proceeding, the protesting Owner shall pay the taxes for which it is responsible pursuant to this Section as they are finally determined and all penalties, interest, costs and expense which may thereupon be due or have resulted therefrom. The Owner making such contest shall indemnify, protect and defend, and hold harmless the other Owners from and against any liability, loss, cost, damage, injury or expense arising out of or relating to such proceeding, but no Owner shall be charged with responsibility as a result of any such proceeding for any increased taxes allegedly resulting therefrom or as a result thereof. (d) Each Owner recognizes and acknowledges that there may be changes in the current real property tax system and that there may be imposed new forms of taxes, assessments, charges, levies or fees, or there may be an increase in certain existing taxes, assessments, charges, levies or fees placed on, or levied in connection with the ownership, leasing, occupancy or operation of the Owner's Parcel(s). All such new or increased taxes, assessments, charges, levies or fees which are imposed or increased as a result of or arising out of any changes in the structure of the current real property tax system or any limitations on the real property taxes which can be assessed on real property, including, but not limited to, any and all taxes, assessments, charges, levies and fees assessed or imposed due to the Owner's leasing the Owner's Parcel(s) to one or more Occupants (including any surcharge on the income directly derived by the Owner from any such leases) or for the purpose of funding special assessment districts previously funded by real property taxes, shall also be included within the meaning of "real estate taxes and assessments" as used in this Declaration. ARTICLE 8 COMMON AREA AND OPEN SPACE AREAS 8.1 Common Area. (a) The Common Area consists of the Detention Basin Areas and the Sign Areas. OI70l<H>t!» 271967.9 Ftnton Raceway Businen tbrli 10/20/05 -20- 14MT8 (b) The Detention Basin Areas shall be used solely for the installation, maintenance, repair and replacement of detention basins and other stormwater retention facilities for the Property, and all things incidental thereto, by Declarant or the Association for the common benefit of each Owner of a Parcel. The Detention Basin Areas are located on a portion of Lot 27 of the Final Map, which Lot constitutes a portion of the Open Space Areas. Declarant plans to convey in fee the Open Space Areas to the City or a landscaping and maintenance district or other similar entity formed to maintain the Open Space Areas, and at the time of such conveyance, to reserve an easement or easements in favor of Declarant and/or the Association over, upon, across and under the Detention Basin Areas to install, maintain, repair and replace the detention basins and other stormwater retention facilities for the Property. (c) The Sign Areas shall be used solely for the installation, maintenance, repair and replacement of monument signs for Fenton Raceway Business Park (i.e., project-level signs and not signs for an individual Occupant of a Parcel) and related landscaping, irrigation, lighting facilities with appropriate underground utility connections, and all things incidental thereto, by Declarant or the Association as described in Section 9.3(a) for the common benefit of each Owner of a Parcel. The Sign Areas will not have separate water meters; the landscaping for the Sign Areas will be irrigated from water lines on an adjoining Parcel. The Owner(s) of the Parcel(s) providing the irrigation water will be given a credit against assessments in an amount equitably determined by the Board to account for the estimated cost of the irrigation water for the Sign Areas. No Owner of a Parcel which provides irrigation water to any of the Sign Areas shall have the right to terminate water service to the Parcel, : 8.2 Open Space Areas. (a) The Open Space Areas consist of Lots 26, 27 and 28 of the Final Map, which Declarant plans to convey in fee to the City or to a landscaping and maintenance district or other similar entity formed to maintain the Open Space Areas, subject to the reservation contemplated by Declarant as described in Section 8.1(b). (b) Subject to Declarant's or the Association's installation, maintenance, repair and replacement of detention basins and other stormwater retention facilities for the Property within the Detention Basin Areas located on Lot 27 of the Final Map, the Open Space Areas shall be used solely for the maintenance of open space in accordance with City requirements. City requirements include a prohibition on the removal of native vegetation from and development of the Open Space Areas, including but not limited to fences, walls, decks, storage buildings, pools, spas, stairways and landscaping, other than in connection with a grading plan, improvement plans, biological revegetation program, landscaping plan and other similar plans approved by the City. Removal of native vegetation from the Open Space Areas shall be permitted in the following situations: (i) for purposes of fire prevention, if there is a written order of the City Fire Department or written approval of the City Planning Director, or (ii) for purposes of preventing disease or impending danger to adjacent habitable dwelling units from specified trees and/orplants, if there is a request for removal of such trees and/or plants from the Association accompanied by a report from a qualified arborist, botanist or biologist indicating the need for such removal. (c) Until the Open Space Areas are conveyed in fee to the City or its designee or to a landscaping and maintenance district or other similar entity formed to maintain the Open Space Areas, Declarant shall be responsible for maintaining the Open Space Areas. Declarant's maintenance responsibilities for the Open Space Areas shall consist of active maintenance to protect 017010-01* 27IM7.9 Fento* Raceway Businat ftrrt 10/20/05 -21- MM79 and preserve the quality of the habitat (includingbut not limited to reasonable prevention of trespass) as required by the U.S. Fish & Wildlife Service and California Department of Fish and Game until some future date when ownership of the Open Space Areas will be transferred to the City or its designee or to a landscaping and maintenance district or other similar entity for perpetual maintenance. Simultaneous with such transfer of ownership of the Open Space Areas to the City or its designee or to a landscaping and maintenance district or other similar entity, Declarant shall ensure that there shall be funding or other acceptable financial mechanism to provide for the management and conservation of the Open Space Areas in perpetuity. (The cost of management is currently estimated to be approximately $85.00 per acre per year.) (d) In the event Declarant fails to maintain the Open Space Areas as provided in Section 8.2(c), the City shall have the right, but not the duty, to perform the necessary maintenance. If the City elects to perform such maintenance, the City shall give written notice to Declarant setting forth the particularity of the maintenance which the City finds to be required and requesting the same to be carried out by Declarant within a period of thirty (30) days from the giving of such notice. In the event Declarant fails to carry out such maintenance of the Open Space Areas within the period specified by the City's notice, the City shall be entitled to cause such work to be completed and shall be entitled to reimbursement with respect thereto from the Owners as provided in Section 8.2(e) below. (e) In the event the City has performed the necessary maintenance to the Open Space Areas in accordance with Section 8.2(d) above, the City shall submit a written invoice to Declarant for all costs incurred by the City to perform such maintenance of the Open Space Areas together with a statement that if Declarant fails to pay such invoice in full within the time specified, the City will pursue collection against Declarant pursuant to the provisions of this Section. Said invoice shall be due and payable by Declarant within twenty (20) days of receipt by Declarant. If Declarant shall fail to pay such invoice in full within the period specified, payment shall be deemed delinquentand shall be subject to a late charge in an amount equal to six percent (6%) of the amount of the invoice. Thereafter, the City may pursue collection from Declarant by means of any remedies available at law or in equity. Without limiting the generality of the foregoing, in addition to all other rights and remedies available to the City, the City may levy a special assessment against the Parcels owned by Declarant for the amount stated in the invoice, plus the late charge. Such special assessment shall also constitute a charge on the land and shall be a continuing lien upon each Parcel against which the special assessment is levied. Declarant vests the City with the right and power to levy such special assessment, to impose a lien upon the Parcels owned by Declarant and to bring all legal actions and/or to pursue lien foreclosure proceedings against Declarant and the Parcels owned by Declarant for purposes of collecting such special assessment. ARTICLE 9 GRANT OF EASEMENTS 9.1 Easements for the Benefit of Governmental Agencies and Public Utilities. Certain easements (in perpetuity or otherwise) have been and may in the future be granted by Declarant over Parcels owned by Declarant tocertain local governmental agencies and public utilities, including, without limitation, easements for open space, drainage, sewer and water lines, which casements may affect all or some of the Parcels. Each Owner shall fully and faithfully comply with all requirements of said governmental agencies under the terms of the easements granted pursuant to this Section. 017010-0196 271967.9F>croon fateway Business fart -22- L4M80 9.2 Easements for the Benefit of Owners and Occupants. Every Owner, for the benefit of such Owner and its successors, assigns, Occupants, customers and invitees, shall have the non-exclusive rights and easements of enjoyment in and to the Common Area for the purposes described in and subject to Section 8. l(b), which rights and easements shall be appurtenant to and shall pass with the title to each such Parcel. 9.3 Easements for the Benefit of Declarant and the Association. In addition to the rights of entry and any other rights reserved to Declarant or given to the Association in this Declaration, the fol lowing non-exclusive easements in perpetuity are hereby reserved to Declarant and established for the benefit of the Association, their agents, employees and contractors: (a) Sign Areas. Easements over, upon, across and under the Sign Areas for (i) planting, replacing and maintaining landscaping and installing, repairing, replacing and maintaining any drainage or irrigation systems, and (ii) erecting, repairing, replacing and maintaining monument signs and installing, repairing, replacing and maintaining any utility lines to such monument signs. (b) Street Landscaping Areas. Subject to Section 9.4(b), an easement over, upon, across and under the Street Landscaping Areas for (i) planting, replacing and maintaining any such landscaping areas as shall reasonably be deemed necessary by Declarant or the Association, and (ii) installing, repairing, replacing and maintaining any drainage or irrigation systems (including, without limitation, landscape wiring and conduits) upon any such landscaping areas as shall reasonably be deemed necessary by Declarant or the Association, when the Owner of the Parcel has failed to maintain the Street Landscaping Areas on the Owner's Parcel as required by this Declaration, the Design Guidelines, or as may be requested by Declarant or the Board. (c) Inspection and Enforcement. An easement over, upon, across and under each of the Parcels, to (i) inspect any such Parcel, upon reasonable prior notice to the Owner of such Parcel, to ascertain whether such Parcel, the Improvements thereon and the uses thereof are in compliance with the provisions of this Declaration, and (ii) abate and remove any Improvement, thing or condition that may exist thereon contrary to the intent and meaning of this Declaration, if such Improvement, thing or condition continues for a period of fifteen (15) days after written notice to the Owner of the Parcel (or if such abatement or removal cannot reasonably be completed within such fifteen (15)-day period, such longer period as determined by Declarant and/or the Association, provided such abatement or removal is diligently commenced and pursued to completion). (d) Re-entry. With respect to the easements established pursuant to Sections (a) through (c), inclusive, of this Section 9.3, Declarant and the Association shall have the full and free right at all times to enter and re-enter the land thereby encumbered, with or without vehicles or on foot, and to come upon said land as often as they deem reasonably necessary to effectuate the purpose of such casements. 9.4 Easement for the Benefit of Declarant. In addition to the rights of entry and any other rights reserved by or granted to Declarant in this Declaration, there are hereby established for the benefit of Declarant, its agents, employees and contractors: (a) Sign Areas. A non-exclusive casement over, upon, across and under the Sign Areas for the purpose of maintaining such signs as Declarant shall reasonably deem necessary or convenient in connection with Declarant's marketing of Parcels owned by Declarant, which easement shall terminate at such time as Declarant no longer owns any Parcel. OI70ICKH* 271967.9Feruoa Raceway Business Dtfk HV20/05 -23- L4M81 (b) Street Landscaping Areas. An easement over, upon, across and under the Street Landscaping Areas for installing the initial planting on and drainage or irrigation systems in the Street Landscaping Areas, which easement shall terminate on the date which is one (1) year after Declarant completes such installation. ARTICLE 10 MAINTENANCE OF PARCELS 10.1 Maintenance. Subject to Section 10.2, each Owner shall maintain, repair and replace (or cause to be maintained, repaired and replaced) the following: (a) Alllmprovements located on the Owner's Parcel(s), to ensure that the Improvements within the Property, including, but not limited to, exterior walls, exterior signs, roofing materials and painted surfaces, are at all times maintained in accordance with the Design Guidelines and any rules and regulations adopted by the Board, as amended from time to time. All building exteriors shall be painted no less frequently than once each five (5) years with the same colors as such buildings were originally painted or stained, unless the Committee approves a change in color, which approval may be withheld in the Committee's sole, absolute and unfettered discretion. (b) The Street Landscaping Areas on the Owner's Parcel shall be maintained in accordance with the Design Guidelines and any rules and regulations adopted by the Board, as amended from time to time. (c) Any slope areas on the Owner's Parcel shall be properly stabilized and maintained in accordance with the Design Guidelines and any rules and regulations adopted by the Board, as amended from time to time. (d) All other areas on the Owner's Parcel shall be maintained free and clear of weeds, debris and rubbish, and in a neat, clean, sightly and well-kept condition. Each Owner shall also adopt and maintain such standards of property maintenance, appearance and housekeeping as are necessary or appropriate to keep and maintain the foregoing in first-class condition, repair and appearance. 10.2 Repair or Replacement of Damaged Buildings. In the event of any damage to or destruction of any building within the Property, which damage or destruction is covered by insurance maintained pursuant to Section 12.3, the Owner of the Parcel upon which such building is located shall, subject to the requirements and limitations stated in this Declaration, repair, restore and rebuild such building as quickly as reasonably practicable after the insurance proceeds payable as a result of such damage or destruction are made available to the Owner. In the event of any damage to or destruction of any building within the Property, which damage or destruction is not covered by insurance maintained pursuant to Section 12.3, the Owner of the Parcel upon which such building is located shall, at its election, at its sole cost and risk and with all due diligence, either (a) repair, restore and rebuild such building, subject to the requirements and limitations stated in this Declaration; or (b) tear down and remove all parts of said damaged or destroyed building then remaining and the debris resulting therefrom and otherwise clean and restore the area affected by such casualty to a level and clean condition. 10.3 Closure. At the request of the Association, the Owner of each Parcel shall, following the permanent closure or cessation of any business operation which is expected to continue for any extended 017010-0196 271967.9Faaoa Rafnvy Buaaai Part itnens -2A- MM82 period of time: (a) board up or otherwise enclose the windows and entrances of such building or portion thereof previously occupied by such business operation in a reasonably attractive manner; and (b) unless prevented from so doing by the terms and conditions of a lease to an Occupant, thereafter diligently seek to sell or relet the vacant premises to another Owner or Occupant whose business operation conforms to the requirements of this Declaration. ARTICLE 11 MAINTENANCE OF COMMON AREA 11.1 Association Maintenance. Upon completion of construction of the Improvements in the Common Area and upon any of the Owners' or Occupants' opening for business, the Association shall manage, maintain, repair and replace (or cause to be managed, maintained, repaired and replaced) the Common Area and all Improvements thereon in good repair and appearance, including, but not limited to, contracting for and paying costs of or related to (i) utility services provided to the Common Area, including, but not limited to, water, electricity and natural gas (if applicable); (ii) light bulbs and light standards; (iii) electrical lines, gas lines (if applicable), storm drains, pipes, water lines and sanitary sewers which serve the Common Area or which are within the Common Area; (iv) detention basins and other stormwater retention facilities for the Property; (v) landscaping and sprinkler systems; (vi) hiring and supervising private security, if deemed necessary by the Board; (vii) the insurance Article 12 of this Declaration requires; and (viii) all other items of maintenance, repair or replacement that may be needed from time to time to maintain the Common Area properly. The Association shall have the right to enter onto any Parcel as may be necessary to exercise any right or perform any obligation it may have pursuant to this Declaration. Any damage caused to a Parcel by entry of the Association shall be repaired by the Association at its expense. 11.2 Association's and Declarant's Right to Repair Neglected Parcels. In addition to maintaining the Common Area, if an Owner fails to maintain the Improvements (including without {imitation the Street Landscaping Areas) situated on the Owner's Parcel so as to violate Section 10.1 and such failure continues for a period of fifteen (15) days after written notice to the Owner (or if such failure cannot reasonably be cured within such fifteen (15)-day period, such longer period as determined by Declarant and/or the Association, provided such cure is diligently commenced and pursued to completion), then the Association, after approval by vote of the Board, shall have the right, through its agents, contractors and employees, to enter onto the Owner's Parcel to repair, maintain and restore the Parcel, the building and any other Improvements erected thereon. However, no entry into a building may be made without the consent of the Owner, and such entry shall be made only after not less than three (3) days notice has been given to the Owner. Entry shall be made with as little inconvenience to the Owner as possible and any damage caused thereby shall be repaired by the Association at its cost and expense. The cost of such exterior maintenance shall be added to and become a part of the assessment to which such Parcel is subject. There is hereby created an easement in favor of the Association to enter onto each Parcel which is subject to assessment to provide maintenance pursuant to this Section, subject to the notice and consent requirements. So long as Declarant owns a Parcel, Declarant shall have the right, but no obligation, to exercise the rights of the Association under this Section. 11.3 Property Management Company. Nothing in this Article 11 or in this Declaration shall preclude or be interpreted as precluding the Association from retaining a "managing agent" within the meaning of Section 1363.1 of the California CIVIL CODE, as it may be amended or replaced from time to time. In the event the Association so retains such a "managing agent", then the "managing agent" and the Association shall make all arrangements necessary or proper to ensure that funds accepted or received by the "managing agent" and belonging to the Association are deposited and handled in compliance with Section 1363.2 of the California CIVIL CODE, as it may be amended or replaced from time to time. The OI70HMM96 27 mi.9Fetuon Raceway Business fork -25- M1483 Association is specifically authorized to employ an affiliate of Declarant as property manager for the Association. ARTICLE 12 INSURANCE AND INDEMNITY 12.1 Indemnity By Owners. Each Owner shall indemnify, protect, defend and hold the Association and the other Owners harmless from and against all claims, expenses, liabilities, loss, damage and costs, including any actions or proceedings in connection therewith and including reasonable attorneys' fees, incurred in connection with, arising from, due to or as a result of the death of or any accident, injury, loss or damage, howsoever caused, to any Person or loss or damage to the property of any Person as shall occur on the indemnifying Owner's Parcel, except (1) claims resulting from the negligence or willful act or omission of (a) the Association or the indemnified Owner, whichever is applicable; (b) any Occupant of the indemnified Owner's Parcel (including such Occupant's agents, servants and employees); or(c) the agent, servants or employees of such indemnified Owner, wherever such negligence orwillful act or omission may occur, or (2) to the extent such Owner's existing insurance insures against the matters covered by the indemnity in this Section. 12.2 Owners' Liability Insurance. Each Owner shall at all times during the term of this Declaration maintain or cause to be maintained commercial or comprehensive general liability insurance covering the Owner's Parcel, insuring against the risks of bodily injury, property damage and personal injury liability with respect to such Parcel, with limits of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars in the aggregate (which amounts shall be reviewed and adjusted annually for increases recommended by insurance industry-recommended standards for mixed use business centers in San Diego County, California which arc of a similar size and which have a similar mix of occupants), with at least the following endorsements: (a)deleting anyso-called "fellow employee exclusion"; (b) including employees as a class as additional insureds; (c) providing for blanket contractual liability coverage (or coverage which shall specifically include the indemnification obligations of the Owner set forth in Section 12.1), broad form property damage coverage and completed operations coverage, bodily injury, personal injury and statutory workers' compensation insurance (including contingent employer's liability); (d) deleting any liquor liability exclusion; and (e) providing for coverage of employer's automobile non-ownership liability. Such insurance shall be issued by an insurance company with a Best's rating of A:VI1 or better, or its equivalent if not rated by The A.M. Best Company. The provisions of Section 12.4 shall apply to the insurance coverage required to be obtained under this Section 12.2. 12.3 Special Perils Property Insurance. (a) Each Owner shall obtain and maintain, or cause to be obtained and maintained, a policy of the most comprehensive and complete property damage insurance reasonably available from time to time and used in mixed use business centers in San Diego County, California which are of a similar size and which have a similar mix of Occupants (which at the date of this Declaration is a policy insuring against "all risk" perils, also known in the insurance industry as "special causes of loss"), including at such Owner's sole option coverage for earthquake or flood, covering all buildings (including all signs affixed to all buildings and all monument signs on which the name of an Occupant of the Parcel appears) on its respective Parccl(s) in an amount at least sufficient to avoid the effect of any co-insurance provisions of such policies and in any event in an amount not less than the full replacement cost of such improvements, exclusive of footings and foundations; provided, however, for each building insured under any such policy, the policy may contain a deductible provision up to a reasonable amount as determined by the Association. Any such OI70HMH9S 271967.9Fcnton Raceway Btainea Ajflfc -26- MMSH insurance may be carried under a "blanket" policy or policies covering other properties of the Owner and its subsidiaries, controlling or affiliated corporations. Each Owner shall review such insurance coverage annually and make (or cause to be made) any changes necessary to satisfy the requirements of this Section. In addition, each Owner shall, upon written request from the Association, furnish to the Association certificates of insurance evidencing the existence of the insurance required to be carried pursuant to this Section. Any insurance required pursuant to this Section shall be issued by an insurance company with a Best's rating of A: VII or better, or its equivalent if The A.M. Best Company does not rate the company. (b) Each Owner, for itself and, to the extent it is legally possible for it to do so, on behalf of its insurer, hereby releases the other Owners from any liability for (a) any loss or damage to the property of each Owner located upon or in the Property, including buildings or other improvements in the Property, or the contents thereof caused by fire or other risks of the type generally covered by a standard policy insuring against "all risk" perils (also known as "special causes of loss"); and (b) any other direct or indirect loss or damage caused by fire or other risks, which loss or damage is of the type generally covered by a standard policy insuring against "all risk" perils (also known as "special causes of loss"). The provisions of this Section 12.3(b) are intended to restrict each Owner (as permitted by law) to recovery against insurance carriers to the extent of such coverage, and waive fully, for the benefit of each Owner, any rights or claims which might give rise to a right of subrogation in any insurance carrier. Each Owner shall obtain or cause to be obtained, for the benefit of the other Owners, a waiver of any such right of subrogation which the insurer of such Owner may acquire against the other Owners by virtue of the payment of any such loss covered by such insurance. 12.4 Changes in Insurance. During the term of this Declaration the insurance industry may change, among other things, the scope of coverage afforded by the various policies of insurance named in this Declaration or the nomenclature by which the scope of coverages contemplated under the various policies of insurance named in this Declaration are known in the insurance industry. In the event of such or similar change, it is the intent of this Declaration and the obligation of the Owners at all times during the term of this Declaration to maintain the scope of insurance coverage afforded at the date of this Declaration by the forms of the various policies of insurance named in this Declaration, to the extent that maintaining same is reasonably, commercially practicable, regardless of the nomenclature by which such scope of coverages may be or become known in the insurance industry. 12.5 Indemnity By Association. The Association shall indemnify, defend and hold harmless the Owners from and against any and all claims, expenses, liabilities, losses, damages and costs, including attorneys' fees, and any actions or proceedings in connection therewith, incurred in connection with, arising from, due to or as a result of the death of any Person or any accident, injury, loss or damage to any Person or property as shall occur in or about the Common Area, arising out of orcaused by the negligence or willful act or omission of the Association in maintaining the Common Area, but specifically excluding claims resulting from the negligence or willful act or omission of the indemnified Owner or any Occupant of any such indemnified Owner's Parcel, or the agents, contractors, servants or employees of such indemnified Owner, wherever the same may occur. Notwithstanding any of the provisions of this Section 12.5 to the contrary, each Owner waives any right of recovery against the Association for any loss, damage or injury to the extent the same is covered by the insurance required under the terms of Section 12.6. 12.6 Association's Insurance. As part of its obligation to maintain the Common Area, the Association shall at all times maintain in force and effect commercial or comprehensive general liability insurance insuring the Association and, as additional insurcds, all Owners and Occupants under leases who 017010-0196 271967.9Fenian Raceway Businta fbrk IO/7MH -27- MM85 now or hereafter own or hold any Parcel or any leasehold estate or other interest therein as their respective interests may appear (provided that the Association is given prior written notice of such interest), against claims for bodily injury, personal injury, death or property damage occurring in, upon or about the Common Area. Such insurance shall be written with an insurer licensed to do business in the State of California. All such insurance shall be primary coverage, endorsed to name as additional insureds all Owners and Occupants under leases of which the Association has been notified in writing, and shall not require that any other insurance be called upon to contribute to a loss under such coverage, and shall have liability limits of not less than Two Million Dollars ($2,000,000) combined single limit coverage for bodily injury, personal injury, death or property damage arising out of any single occurrence, which amount shall be reviewed annually and changed to reflect the current practice in mixed use business centers in San Diego County, California which are of a similar size and which have a similar mix of occupants. Such insurance shall include blanket contractual liability coverage or coverage which shall specifically include the obligation of indemnification required of the Association under Section 12.5. The Association shall cause certificates of insurance to be issued by the insurer to each of the Owners and Occupants of whom the Association has been notified in writing, certifying that such insurance is in full force and effect and shall not be canceled or materially amended without thirty (30) days prior written notice thereof to each of such Owners and Occupants. In addition, if deemed reasonably necessary by the Association, the Association shall obtain and maintain in force and effect a standard policy insuring against "all risk" perils (also known as "special causes of loss") on the same terms and conditions as required for property insurance pursuant to Section 12.3, covering all Improvements in the Common Area sufficient (in the reasonable business judgment of the Association) in amount of coverage to replace all such improvements. Any insurance required pursuant to this Declaration shall be issued by an insurance company with a Best's rating of A: Vll or better, or its equivalent if The A.M. Best Company does not rate the company. The provisions of Section 12.4 shall apply to all insurance coverage required to be obtained under this Section 12.6. 12.7 Additional Insurance. The Association is authorized to obtain and maintain in force the following additional policies of insurance: (a) Insurance in an amount to be determined by the Board, but in any event not less than One Million Dollars ($ 1,000,000), on behalf of (i) each director, (ii) each member of the Committee and (iii) such other committee members and officers as the Board in its discretion deems appropriate, for liability asserted against or incurred by such director, committee member or officer in such capacity or arising out of such status, regardless whether the Association would have the power to indemnify such Director, committee member or officer against such liability under applicable law; (b) Workers' Compensation Insurance, to the extent required by law, covering any employee or uninsured contractor of the Association; and (c) Such other insurance as the Board shall deem necessary or expedient to carry out the functions of the Association as set forth in the Declaration, the Articles and the Bylaws. 12.8 Review. The Board shall periodically review the coverage provided by the insurance policies obtained and maintained by the Association, and, to the extent that increased coverage is available and at the Board's discretion, shall increase such coverage in light of inflation, increased risk and similar factors. 12.9 Self-Insurance. The Board may from time to time considerand in its sole discretion approve or reject requests by Owners to satisfy the requirements of Sections 12.2 and 12.3 through a program of self- insurance. The Board may request such information and apply such standards as it deems necessary or appropriate to assure that any such self-insurance program meets the intent and standards of Sections 12.2 017010-01% 271967.9Fenum Raceway 0uiine» fbrtt 10/2O05 -28- MI4S6 and 12.3. Notwithstanding the foregoing, the Board shall approve any program of self-insurance of an Owner who has a minium net worth of One Hundred Million Dollars ($100,000,000). ARTICLE 13 ENFORCEMENT AND REMEDIES 13.1 Right to Cure. To the extent not previously addressed in Sections 9.3(c) and 11.2, if any Owner defaults in the full, faithful and punctual performance of any obligation required under this Declaration, and if, at the end of thirty (30) days after written notice from any other Owner or the Association stating with particularity the nature and the extent of such default, the defaulting Owner has failed to cure such default or if a diligent effort is not then being made to cure such default, then any other Owner or the Association shall, in addition to all other remedies it may have at law or in equity, have the right to perform such obligation on behalf of such defaulting Owner and be reimbursed by such defaulting Owner for the cost thereof, together with interest thereon (from the date of the curing Owner's payment) at the rate of the lesser of (i) twelve percent (12%) per annum, or (ii) two percentage points per annum over the reference rate of Bank of America, N.T.& S.A. (or such other major national bank as may designated by the Board if Bank of America ceases to exist) in effect on the due date, but not greater than the maximum rate (if any) per annum allowed by law. Any such claim for reimbursement, together with interest as aforesaid, shall be a secured right and a lien therefor may attach to the portion of the Property and Improvements thereon owned by the defaulting Owner. 13.2 City's Right to Enforce. The Cityshall have the right, but not the obligation, to enforce the protective covenants, conditions and restrictions set forth in this Declaration in favor of, orin which the City has an interest. 13.3 Legal and Equitable Relief. Each Owner and the Association shall have the right to prosecute any proceedings at law or in equity against any other Owner, Occupant or any other Person violating or attempting to violate or default in the performance of any of the provisions contained in this Declaration to prevent such Owner, Occupant or other Person from violating or attempting to violate or default in the performance of any of the provisions of this Declaration and to recover damages for any such violation or default. All of the remedies permitted or available under this Declaration, at law or in equity, shall be cumulative and not alternative, and the invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. 13.4 Claim of Lien. The lien for which Section 13.1 provides shall become effective upon the recording of a Notice of Claim of Lien in the Office of the County Recorder of San Diego County, California, signed and certified, stating the amount due, the name of the defaulting Owner and the legal description of the Parcel owned by such defaulting Owner. Such lien, when recorded against the Parcel described in said Notice of Claim of Lien, shall be prior and superior to any right, title, interest, lien or claim which may be acquired or attaches to such Parcel after the date of recordingof such Notice of Claim of Lien. Such lien shall be for the use and benefit of the Owner or the Association filing same and may be enforced and foreclosed in a suit or action brought in any court of competent jurisdiction, 13.5 Waiver. The failure of any Owner or the Association to enforce any provision of this Declaration shall in no event be deemed a waiver of the right to do so thereafter, and neither any Owner nor the Association shall have any liability for such failure of such Owner or the Association to enforce any provision of this Declaration. 017010-0196 271967.9Fenton Raceway Business Park HV20/05 -29- 13.6 Injunctive Relief. In the event of any violation or threatened violation by any Owner or Occupant of any portion of the Property of any of the terms, covenants, conditions and obligations of this Declaration, in addition to the other remedies for which this Declaration provides, any or all of the Owners shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. 13.7 Breach Shall Not Permit Termination. No breach of this Declaration shall entitle any Owner to cancel, rescind or otherwise terminate this Declaration, but such limitation shall not affect in any manner any other rights or remedies which such Owner may have under this Declaration by reason of any breach of this Declaration. Any breach of any of the covenants, conditions or restrictions set forth in this Declaration, however, shall not defeat or render invalid the lien of any Mortgage made in good faith and for value, but such covenants, conditions or restrictions shall be binding upon and be effective against such Owner of any of said property or any portion thereof whose title thereto is acquired by foreclosure, trustee's sale or otherwise. 13.8 Litigation Expenses. If any Owner or the Association brings an action against any other Owner or Occupant by reason of a breach or alleged violation of any covenant, term or obligation of this Declaration, or for the enforcement of any provision of this Declaration or otherwise arising out of this Declaration, the prevailing party in such action shall be entitled to its cost of suit and reasonable attorneys' fees, which shall be made part of any judgment rendered in such action; ARTICLE 14 ASSIGNMENT 14.1 General. The rights, powers, duties and obligations conferred upon Owners pursuantto this Declaration shall not at any time be transferred or assigned by any Owner, except (a) in the case of the rights, powers, duties and obligations of Declarant, by Declarant pursuant to the definition of "Declarant" set forth in Article 1; or (b) in the case of any other Owner, through a transfer of the Owner's interest in its Parcel in the manner provided in Section 14.2. 14.2 Sale By Owner. Upon the sale, transfer, conveyance or assignment by any Owner of its right, title and interest in its Parcel, the following shall apply: (a) Notice. The transferring Owner shall give written notice of the sale, transfer, conveyance or assignment to the Association, including the legal name and address of the transferee, concurrently with recording the instrument effecting the same. (b) Transferee's Statement. Prior to the effective date of the transfer, the transferee shall sign and deliver to the Association a written statement which contains the name and address of the transferee and the signed agreement of the transferee to be bound by this Declaration and to perform all obligations of the transferor under this Declaration with respect to the transferred Parcel. Failure to deliver any such written statement shall not affect the running of any covenants in this Declaration with the land, nor shall any such failure negate, modify or otherwise affect liability of any Owner or transferee pursuant to this Declaration, but such failure shall constitute a default of this Declaration by the transferee. (c) Release of Owner. Upon the assumption by the transferee under Section 14.2(b), the transferring Owner shall be released from all obligations of this Declaration as of the effective date of the transfer; provided that with respect to the period before the effective date of the transfer, 0170104196 271967.9Fauon Racevay Business fork 10/20/05 -30- ML488 such Owner is not in default in the performance of any duties or obligations arising under this Declaration or in the payment of any amounts due and payable under this Declaration. (d) Liability of Transferee. In no event shall any transferee of any Owner be liable for any default of the transferring Owner under this Declaration which occurred prior to the effective date of the transfer; provided, however, nothing contained in this Section shall affect the existence, priority, validity or enforceability of any lien placed upon the transferred Parcel or portion thereof pursuant to Article 13. ARTICLE 15 OWNERSHIP OF PARCELS 15.1 Sale/Leaseback. If any Owner of a Parcel conveys fee title to its Parcel(s) and a new interest, in the form of a leasehold or similar possessory interest, is acquired by such transferring party concurrently with conveyance of fee title to such Parcel, then, unless within three (3) days following such conveyance the Person to whom such conveyance has been made notifies the Association and Declarant in writing to the contrary, such transferring party shall be deemed to have retained all of the rights, powers and obligations of the Owner of such Parcel, to the exclusion of the Person to whom such conveyance has been made; provided, however, upon termination or assignment of such leasehold or other possessory interest, the rights, powers and obligations theretofore retained by such transferring party shall terminate and thereupon vest completely and irrevocably in the Person then holding fee title to such Parcel. This Article shall likewise apply to any transferee of such an Owner who so conveys but retains a lease for a term of ten (10) years or more and who occupies the Parcel. 15.2 Multiple Ownership. In the event any Owner transfers or conveys its interest in its Parcel or any portion of its Parcel or interest in its Parcel in such a manner as to vest ownership of the Parcel in more than one Person, then the Persons owning all of such interest in such Parcel shall be jointly considered a single Owner and such Persons shall designate one of their number to act on behalf of all such Persons in the performance of the provisions of this Declaration. Any such designation shall be in writing, duly executed and acknowledged by each such Person; shall be served upon the Association and all other Owners in accordance with the notice provisions of Article 16; shall contain a certificate that a copy thereof has been so served; and shall be recorded in the Office of the County Recorder of San Diego County, California. In the absence of any such written designation, the acts of the Owner whose interest is so divided with respect to the performance of the provisions of this Declaration shall be binding upon all of the Persons then owning any interest in such Parcel until such time as the written designation is properly served as provided in this Article 15. The exercise or performance of any rights, powers or obligations of an Owner under this Declaration by the Person designated to represent such Persons shall be binding upon all Persons having an interest or right in such Parcel. So long as such designation remains in effect, all Persons having an interest or right in such Parcel shall act only through such designated Person and the Association and the other Owners and Occupants shall have the right to deal exclusively with and rely solely upon the acts or omissions of such designated Person in the performance of the provisions of this Declaration. Any Person designated under this Article 15 may be removed by the Persons so designating, in accordance with any procedure agreed between them, provided that written notice of such removal and designation of a new Person to act on their behalf under this Declaration is given and made in the manner specified in this Article 15; and in the absence of any such notice and designation, the previous designation shall continue in effect and the acts of the Person previously designated with respect to the performance of the provisions of this Declaration shall be binding upon all such Persons until such time as the written notice and new designation is properly served as provided in this Article 15. Any Person designated pursuant to the provisions of this Article 15 shall be the agent of each of its principals, hereby irrevocably appointed for such purposes, upon whom 0170104196 271967.9Foaon Racftmy Btainea /fart 10/2<VOS -31- •41483 service of any process, writ, summons, order or other mandate of any nature of any court in any action, suit or proceeding arising out of this Declaration may be made, and service upon such designated Person shall constitute due and proper service of any such matter upon each of its principals, provided a copy of such matter is also mailed to such principals at the last address of such principals known to the sender. Notwithstanding anything to the contrary contained in this Declaration, the designation of a Person to act on behalf of other Persons as provided in this Article 15 shall not for any purpose relieve any such Persons from the obligations or liabilities created by or arising from this Declaration. ARTICLE 16 APPROVAL OF OWNERS AND NOTICES All notices, demands or requests for consent or approval of any kind which the Association or any Owner or Occupant is required or desires to give or make upon the Association or any other Owner or Occupant shall (i) be in writing; (ii) specify the Section of this Declaration which requires or authorizes that such notice be given or requires that such consent or approval be obtained; and (iii) be given or made (subject to the right of the Association or any Owner or Occupant to designate a different address by giving notice of such change in the manner provided in this Section) by personal delivery, private express courier, or by United States registered or certified mail, return receipt requested, postage prepaid, addressed, in the case of Declarant and the consenting parties, as follows: Declarant: Fenton Raceway LLC 7577 Mission Valley Road, Suite200 San Diego, California 92108 : Attention: Property Manager Association: Fenton Raceway Business Park Property Owners Association 7577 Mission Valley Road, Suite200 San Diego, California 92108 Attention: Secretary When given in the manner prescribed in this Section, all notices, demands or requests for consent or approval shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or the date on which delivery is refused by the addressee. ARTICLE 17 MODIFICATION PROVISION Other than a termination or extension of this Declaration which shall be governed by Article20, this Declaration may not be modified in any respect whatsoever, or rescinded, in whole or in part, except by written instrument duly recorded in the Office of the County Recorder of San Diego County, after first being duly signed and acknowledged by (i) Declarant, for so long as Declarant owns a Parcel or is the beneficiary undera deed of trust encumberinga Parcel, and (ii) theOwncrs (including Declarant) of Parcels constituting at least fifty one percent (51%) of the total Voting Power of the Association. A copy of any proposed amendment to this Declaration shall be provided to the City in advance. If the proposed amendment affects OI70KMH96 271967.9Fenton Ratfway Business ftrt HV2W05 -32- MM30 the City, the City shall have the right to disapprove such amendment. A copy of the final approved amendment shall be transmitted to the City within thirty (30) days for the official record. ARTICLE 18 NOT A PUBLIC DEDICATION Nothing contained in this Declaration shall be deemed to be a gift or dedication of any portion of the Property to the general public or for the benefit of the general public or for any public purposes whatsoever, it being the intent of Declarant that this Declaration shall be strictly limited to and for the purposes expressed in this Declaration. The right of the public or any Person to make any use whatsoever of the Property or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission and subject to control of the Owners. ARTICLE 19 EMINENT DOMAIN In the event the whole or any part of the Property is taken by right of eminent domain or any similar authority of law, the entire award for the value of the land and improvements so taken shall belong to the Owner(s) of the property so taken or to their tenants, as their interests may appear, and no other Owner of land in the Property shall claim any portion of such award by virtue of any interest created by this Declaration; provided, however, any such other Owner may file a collateral claim with the condemning authority over and above the value of the land and improvements being so taken to the extent of any damage suffered by such Owner resulting from the severance of the area so taken, provided such collateral claim does not diminish the amount recoverable by the Owner(s) of the property so taken. In the event of a partial taking, the Owncr(s) of the portion of the Property so condemned shall restore the. remaining portion of the Property owned by such Owner(s), including Improvements in the Common Area, as nearly as possible to the condition existing just prior to such condemnation, without contribution from the Owners of the area not so taken and any condemnation accrual necessary therefore shall be held in trust and applied for such purpose; provided, however, that if any Mortgagee of any property in the Property makes the requirement pursuant to a provision in a Mortgage that the portion of the award representing compensation for severance damage to property not taken, be paid to the Mortgagee, then the party required to make such payment to such Mortgagee shall not be obligated to apply such portion of the award to restoration, except to the extent necessary to restore Common Area. ARTICLE 20 TERM OF DECLARATION This Declaration shall continue for a period of fifty (50) years and thereafter year to year, unless, before the expiration of the term (as it may be so extended), this Declaration is terminated or extended by written instrument duly signed and acknowledged by the Owners, and such instrument is recorded in the Office of the County Recorder of San Diego County, California. This Declaration shall terminate upon the expiration of the term following such recordation, provided that the easements granted herein shall survive such termination unless otherwise specified herein. 017010-0196 271967.9Ftnton Raceway Business ft/it 10/20/05 -33- ARTICLE 21 MISCELLANEOUS 21.1 Severability. If any provision of this Declaration is held by a court of competent jurisdiction to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Declaration, and all remaining provisions shall continue unimpaired, in full force and effect. 21.2 Interpretation. Captions and Section headings, where used in this Declaration, are for convenience of reference only, are not intended to be a part of this Declaration and in no way define, limit, amplify, change, alter or describe the scope or intent of the particular paragraphs to which they refer. For the purpose of this Declaration, the neuter gender includes the feminine or masculine and the singular number includes the plural. 21.3 Reciprocal Covenants to Run with the Land. This Declaration is made for the direct, mutual and reciprocal benefit of each and every Parcel; shall create mutual, equitable servitudes upon each Parcel in favor of every other Parcel; shall create reciprocal rights and obligations between and among the respective Owners during their respective periods of ownership and privity of contract and estate between and among all grantees of each Parcel, their respective heirs, successors and assigns; and shall, with respect to the Owner of each Parcel, its heirs, successors and assigns during their respective periods of ownership, operate as covenants running with the land, for the benefit of all other Parcels. IN WITNESS WHEREOF, Declarant has signed and made this Declaration as of the date first above written. "Declarant" FENTON RACEWAY LLC, a California limited liability BY H.G. FENTON COMPANY, a California corporation, its Manager By; Print N^me:lts: c president 017010-0196 271967.9 Ftnion Raceway Business fbrt l(V2<VC5 -34- STATE OF CALIFORNIA ) )ss. COUNTY OF SAN DIEGO ) On this day of , 20<Pg". before me, , a Notary Public in and for said State, personally appeared _ personally known to me (or proved to me on.the basis of caticfaotory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that be/shc/they executed the same in feisAer/thcir authorized capacity(ies), and that by hia/hep/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature CLARE CHAVEZ Commtofenf J466393 «' Notay.PuWc - Gdfomto _. Son Otego County I (Seal) MyCQnmiEiqp>B»Jon».2006[ Fenlon Raceway Business Aifi IV2IVOS 0170IMI96 27I9«7.9 EXHIBIT "A" Legal Description of the Property Lots 1 through 28, inclusive, of CARLSBAD RACEWAY CARLSBAD TRACT NO. 98-10, in the City of Carlsbad, County of San Diego, State of California, according to Final Subdivision Map No. 15013, filed in the Office of the County Recorder of San Diego County, California, on May 3,2005. 017010-0196 271967.9 Fenton Raceway Business Park » « 10/20/05 A-l EXHIBIT "B" Final Map of Fenton Raceway Business Park [attached] 017010-0196 271967.9Frtaon Raceway Business ftri D . HV20TO5 D-L MM35 EXHIBIT "B" Final Map of Fenton Raceway Business Park illl « i S3S3j 3sSa *{,SSS3Pmi fol KS !I8i I II SIH ;i i> t B-l MM36 EXHIBIT "C" Net Pad Acreage, Assessment Percentages, and Voting Power Lot Number(s)' 1 2 3 4 5 6 7 :• 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Net Pad Acreage2 6.37 5.49 2.97 4.52 3.33 2.12 1.83 2.17 2.18 2.31 4.62 6.93 1.81 4.01 5.67 3.74 4.82 1.34 1.48 1.13 1.41 Assessment Percentage* 7.39% 6.37% 3.45% 5.24% 3.86% 2.46% 2.12% 2.52% 2.53% 2.68% 5.36% 8.04% 2.10% 4.65% 6.58% 4.34% 5.59% 1.55% 1.72% 1.31% 1.64% Class A Voting Power4 6 5 3 5 3 2 2 2 2 2 5 1 2 4 6 4 5 1 1 1 1 Fenian Raceway Business RjHt 1WZIV05 C-l 017010-01% 2719*7.9 141437 Lot Number(s)1 22 23 24 25 Totals Net Pad Acreage1 1.87 3.34 1.97 8.77 86.2 Assessment Percentage' 2.17% 3.87% 2.29% 10.17% 100% Class A Voting Power4 2 3 2 9 85 votes These numbers correspond to the Lot numbers shown on the Final Map. These Net Pad Acreage figures correspond to the Net Pad Acreage of the original Lots as shown on the Final Map. In the event of subdivision or consolidation of one or more Parcels which changes the Net Pad Acreage of any Parcel(s), the applicable Assessment Percentage and Voting Power shall be divided among or combined for the resulting Parcel(s) according to the revised Net Pad Acreage. In such case, Declarant shall have the right, in its sole, absolute and unfettered discretion, to record an amendment to this Declaration in the Official Records of San Diego County, California, for the sole purpose of amending this Exhibit "C" to reflect the revised Net Pad Acreage, Assessment Percentages, and Voting Power. If Declarant fails to record such an amendment within thirty (30) days after written request from an Owner for such an amendment, the Owners holding the majority of the Voting Power as revised (excluding the Voting Power of Declarant) may elect to record an amendment to this Exhibit "C" for the sole purpose of reflecting the revised Net Pad Acreage, Assessment Percentages, and Voting Power. Notwithstanding the foregoing, the Assessment Percentages and Voting Power shall be deemed revised according to the revised Net Pad Acreage regardless of whether such an amendment is recorded. The Assessment Percentage for a Parcel is calculated based on its Net Pad Acreage divided by the total net acreage of the Property. The Voting Power for a Parcel is calculated based on its Net Pad Acreage. Declarant shall have five (5) times the votes shown for each Parcel owned by Declarant. Fattaa Rocma? Biauteu A/* I [WOTS 017010-01% 271967.9 C-2 MUSS EXHIBIT "D" Open Space Areas [attached] 017010-Om 271M7.9Ftnton Raceway Business ftirit p. . MM39 Open Space Areas (Lots 26,27 and 28) ± D-2 -\ 14500 EXHIBIT "E' Sign Areas [attached] 017010-01K 271967.9Faaon Raceway Business fork — .\anami t-1 MS01 Sign Areas North M502 EXHIBIT "F" Street Landscaping Areas and Detention Basin Areas [attached] 017010-0196 271967.9Fenlon Raceway Business flv* — 1 KV2flrt>5 r-1 M503 rrF&L soAO SECTION STREET LANDSCAPE AREASd<z>' MINIMUM; STREET LANDSCAPE AREX FENTON RACEWAY BUSINESSPARK NO SCALE Nwth F-2 DOC# 2006-0647230 Recording Requested By . When Recorded Return To: 6061 HECHT SOLBERG ROBINSON GOLDBERG & BAGLEY LLP Ms. Marianne F. Minguet 600 West Broadway, Eighth Floor San Diego, California 92101 SEP 12, 2006 11:21 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 26.00 PAGES: 7 2006-0647230. FIRST AMENDMENT TO DECLARATION ESTABLISHING COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS For FENTON RACEWAY BUSINESS PARK This First Amendment to Declaration Establishing Covenants, Conditions and Restrictions and Grants of Easements for Fenton Raceway Business Park ("Amendment") is made as of August I, 2006 by FENTON RACEWAY LLC, a California limited liability company ("Declarant"), and OPUS WEST CORPORATION, a Minnesota corporation ("Opus"), pursuant to Article 17 of the Declaration (defined below), with reference to the following: RECITALS A. Declarant caused that certain Declaration Establishing Covenants, Conditions and Restrictions and Grants of Easements for Fenton Business Park ("Declaration") to be recorded in the Office of the County Recorder of San Diego County, on October 24, 2005 as Document No. 2005-0917104. Unless otherwise defined herein, initially capitalized terms shall have the meanings given them in the Declaration. B. Declarant owns Lots 1 through' 4, inclusive, and 12 through 15, inclusive, of CARLSBAD RACEWAY CARLSBAD TRACT NO. 98*10, in the City of Carlsbad, County of San Diego, State of California, according to Final Subdivision Map No. 15013, filed in the Office of the County Recorder of San Diego County, May 3, 2005 ("Final Map"). Opus owns Lots 5 through 11, inclusive, and 16 through 25, inclusive, of the Final Map. Lots 1 through 25, inclusive, of the Final Map constitute all of and the only Lots to which Voting Power is apportioned under the Declaration. C. Pursuant to Article 17 of the Declaration, (a) Declarant, for so long as Declarant owns a Parcel or is the beneficiary under a deed of trust encumbering a Parcel, and (b) the Owners (including Declarant) of Parcels constituting at least fifty one percent (51%) of the total Voting Power of the Association, may modify the Declaration. As the respective Owners of Lots 1 through 25, inclusive, of the Final Map, Declarant and Opus hold one hundred percent (100%) of the total Voting Power of the Ftntan facmay Biaiaai Par* S/I/D6 -1-0170100209 310263 3 6062 Association. In accordance with Article 17 of the Declaration, Declarant and Opus may and wish to amend the Declaration as follows: NOW, THEREFORE, the Declaration is amended as follows: 1. Purpose of Assessments. Section 3.2 of the Declaration is amended to include among the purposes of the assessments levied by the Association any and all shared maintenance costs and expenses payable by the Association pursuant to that certain Maintenance and Cost Sharing Agreement dated as of July 19, 2006, by and between the Association and Palomar Forum Associates, L.P., a California limited partnership, and to be recorded in the Office of the County Recorder of San Diego County, California, substantially concurrently with this Amendment. Such costs and expenses shall become part of the regular assessments levied by the Association and shall be subject to the applicable terms and conditions of Article 3 of the Declaration. 2. Rate of Assessment. Exhibit "C" attached to the Declaration is hereby deleted in its entirety and replaced with Exhibit "C" attached to this Amendment. 3. Modification; Effectiveness. Except as stated above, the Declaration remains unmodified. This Amendment shall become effective upon recordation of this Amendment in the Office of the County Recorder of San Diego County, California. IN WITNESS WHEREOF, Declarant has signed and made this Amendment as of the date first above written. "Declarant" FENTON RACEWAY LLC, a California limited liability company By: H.G. FENTON COMPANY, a California corporation, its Manager Bv: Print Natne: ftiichac! P. Neal Its: President and CEO Assistant Secretary Fmon Racnay Busimai Park -) 0170100209 310263 ) 8/1/05 '•*•' "Opus" 6068 OPUS WEST CORPORATION,/^ Minnesota corporation By: Print Name: Its: ' Fenton Raetway Btttinea fork 8/1/06 -3-017010.0209 310263 3 STATE OF CALIFORNIA COUNTY OF *bgVC\ 6064 On °A-i\t>-4=. before of the officer), personally appeared £~ V-> insert name and title . personally known to me (or proved-to-me on the-basis of satisfactory evidence) to be the person^) whose nameOs) is/are, subscribed to the within instrument and acknowledged to me that he/she/they- executed the same in his/her/their authorized capacity(Tes), and that by his/hWtheir signature^ on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature c DONAIOBBl Notary Pubic -Cottomto ORmo»Counly My Comm. ExpkM Jii ie. 2007 (Seal) STATE OF CALIFORNIA COUNTY OF ^& )ss. J \\ .before me, \l \ CK-'t CuSkiiZ , • , .(here insert name and title of the officer), personally appeared rv\r o-^c-^.1 P. ri-e.aA , personally known to me (or provetFio me on me Imit. of satiafoctory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/feey executed the same in his/h«f&heir authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. —N WITNESS my hand and official seal. Signature. • * • fBERG k 1386827 t VICKI GOLDBERG Commission # 1386827 Notary Public - California % San Diego County f My Comm. Expires Dec21.2006j (Seal) FPUOH Raceway Butfnat Park t/1/06 -4-017010.0209 310263 3 6065 STATE OF CALIFORNIA ) )ss. COUNTY OfSc,^ Orctvo ) OnSoijA. U Dook> before me,\}\oC &o\t!>t>ecx> •Jt*~<-~ PJW.'C (here insert name and title of the officer), personally appeared fcaH Pr-g.utft4- , personally known to me (or proved to me on the basts' of-satisfacto^ evidence) to be the person(s) whose name(s) is/ase subscribed to the within instrument and acknowledged to me that he/she/they executed the same in -his/her/their authorized capacity(ies), and that by •hts/her/tke» signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. V1CK1 GOLDBERG Commission # 1386827 Notary Public - California Signature \I. j^> . .^^tE-^HW San Dfego County f (Seal) My Comm. Expires Dec 21.2006I STATE OF CALIFORNIA ) )ss. COUNTY OF ) On before me, (here insert name and title of the officer), personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) FtMonRaccwayBiaiiteuPart c 017010.0209 3I0263J 8/1/06 "•'" EXHIBIT "C" Net Pad Acreage, Assessment Percentages, and Voting Power 6066 Lot Numbers)1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Net Pad Acreage2 5.271 4.530 2.645 4.151 3.026 1.896 1.619 1.899 1.949 2.013 3.900 6.376 1.715 3.968 5.666 3.696 4.820 1.329 1.526 1.130 Assessment Percentage3 6.66 5.73 3.34 5.25 3.83 2.40 2.05 2.40 2.46 2.55 4.93 8.06 2.17 5.02 7.16 4.67 6.10 1.68 1.93 1.43 Class A Voting Power4 5 5 3 4 3 2 2 2 2 2 4 6 2 4 6 4 5 1 2 1 These numbers correspond to the Lot numbers shown on the Final Map. These Net Pad Acreage figures correspond to the Net Pad Acreage of the original Lots as shown on the Final Map. In the event of subdivision or consolidation of one or more Parcels which changes the Net Pad Acreage of any Parcel(s), the applicable Assessment Percentage and Voting Power shall be divided among or combined for the resulting Parcel(s) according to the revised Net Pad Acreage. In such case, Declarant shall have the right, at its sole, absolute and unfettered discretion, to record an amendment to this Declaration in the Official Records of San Diego County, California, for the sole purpose of amending this Exhibit "C" to reflect the revised Net Pad Acreage, Assessment Percentages, and Voting Power. If Declarant fails to record such an amendment within thirty (30) days after written request from an Owner for such an amendment, the Owners holding the majority of the Voting Power as revised (excluding the Voting Power of Declarant) may elect to record an amendment to this Exhibit "C" for the sole purpose of reflecting the revised Net Pad Acreage, Assessment Percentages, and Voting Power. Notwithstanding the foregoing, the Assessment Percentages and Voting Power shall be deemed revised according to the revised Net Pad Acreage regardless of whether such an amendment is recorded. The Assessment Percentage for a Parcel is calculated based on its Net Pad Acreage divided by the total net acreage of the Property. The Voting Power for a Parcel is calculated based on its Net Pad Acreage. Declarant shall have five (5) times the votes shown for each Parcel owned by Declarant. Fentan Raceway Butlnas Park &M/06 -6-017010.0209 310263 } 6067 21 22 23 24 25 Totals 1.408 1.866 3.338 1.971 7.383 79.091 1.78 2.36 .4.22 2.49 9.33 100 1 2 3 2 7 80 Fttaon Raceway Btaincu Part 8/1/06 -7-0170100209 310263 3 ' * I DOC# 2007-05942914683 Recording Requested By SEP 10, 2007 12:09 PM OFFICIAL RECORDS x - SAN DIEGO COUNTY RECORDER'S OFFICE1 GREGORY J. SMITH. COUNTY RECORDERWhen Recorded Return To: \ £ f; p( FEES: 20.00 : PAGES:HECHT SOLBERG ROBINSON GOLDBERG & BAGLEY LLP ' Ms. Marianne F. Minguet 600 West Broadway, Eighth Floor San Diego, California 92101 N - -2007-059429T SECOND AMENDMENT TO DECLARATION ESTABLISHING COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANTS OF EASEMENTS For FENTON RACEWAY BUSINESS PARK This Second Amendment to Declaration Establishing Covenants, Conditions and Restrictions and Grants of Easements for Fenton Raceway Business Park ("Amendment") is made as of July , 2007 by FENTON RACEWAY LLC, a California limited liability company ("Declarant"), pursuant to Article 17 of the Declaration (defined below), with reference to the following: RECITALS A. Declarant caused that certain Declaration Establishing Covenants, Conditions and Restrictions and Grants of Easements for Fenton Raceway Business Park to be recorded on October 24, 2005 as Document No. 2005-0917104, and that certain First Amendment to Declaration Establishing Covenants, Conditions and Restrictions and Grants of Easements for Fenton Raceway Business Park to be recorded September 12, 2006 as Document No. 2006-0647230, both in the Office of the County Recorder of San Diego County (collectively, "Declaration"). Unless otherwise defined herein, initially capitalized terms shall have the meanings given them in the Declaration. B. Declarant owns Lots 1 through 4, inclusive, and 12 through 15, inclusive, of CARLSBAD RACEWAY CARLSBAD TRACT NO. 98-10, in the City of Carlsbad, County of San Diego, State of California, according to Final Subdivision Map No. 15013, filed in the Office of the County Recorder of San Diego County, May 3, 2005 ("Final Map"). The proportionate voting power of the Owner of a Parcel, based on net pad acreage of the Parcel, is set forth on Exhibit "C" to the Declaration. Declarant, as the Class B Member holds five (5) times the Voting Power shown on Exhibit "C" to the Declaration for each Parcel owned by Declarant. The votes of Class A Members and Class B Member combined constitute the total Voting Power of the Association. C. Pursuant to Article 17 of the Declaration, (a) Declarant, for so long as Declarant owns a Parcel or is the beneficiary under a deed of trust encumbering a Parcel and (b) the Owners (including FenianKacnaySuimaiPark 1 0170I002W 33I670J 7/25/07 * L ~ 4684 Declarant) of Parcels constituting at least fifty one percent (51%) of the total Voting Power of the Association may modify the Declaration. As the Owner of Lots 1 through 4, inclusive, and 12 through 15, inclusive, of the Final Map, Declarant holds at least fifty one percent (51%) of the total Voting Power of the Association. In accordance with Article 17 of the Declaration, Declarant may and wishes to amend the Declaration as follows: NOW, THEREFORE, the Declaration is amended as follows: 1. Membership and Voting Rights in Association. Article 2 of the Declaration is amended to add the following Section 2.3 as follows: Section 2.3 Delegation of Voting Rights for Condominium Projects. When a Parcel is further subdivided to create a condominium project consisting of condominiums by the filing of a Condominium Plan such that the condominiums are included in the definition of a Parcel for purposes of this Declaration, a condominium owner, by acceptance of deed to a condominium, irrevocably delegates and appoints the subassociation, which is formed to govern and manage the condominium project, to act on his or her behalf as "Owner" under this Declaration. Each condominium owner, by acceptance of a deed to a condominium, agrees he or she has no direct rights under this Declaration and only has such rights through the subassociation and only during the period such condominium owner owns a condominium and is a member of the subassociation. To the extent that it is determined that a condominium owner has any rights as "Owner" under this Declaration, such condominium owner irrevocably delegates and appoints the subassociation to act on its behalf as an "Owner" under this Declaration. The subassociation shall vote on any matters and exercise all approvals and rights under this Declaration, on behalf of and for the benefit of each condominium owner in the condominium project and such condominium owner's Mortgagees, optionees, grantees, licensees, tenants, heirs, administrators, executors, legal representatives, successors and assigns. 2. Common Area. Section 8.1 of the Declaration is amended as follows: (a) Section 8.1 (a) of the Declaration is amended and restated as follows: (a) The Common Area consists of the Detention Basin, the Sign Areas, the Landscaped Right-of-Way, and, upon conveyance by Declarant to the Association of fee title thereto, the Open Space Areas. (b) Section 8.1(d) to the Declaration is added as follows: (d) The Landscaped Right-of-Way shall be used solely for the planting, replacing and maintaining by the Association of landscaping, irrigation, drainage, and all things incidental thereto. For purposes of this Declaration, "Landscaped Right-of-Way" shall mean a five-foot (51) strip in the public right-of-way adjacent to the Street Landscaping Areas on Lots 1 through 24, inclusive, of the Final Map. Fenloa Racmay Businai Park /j 017010.0209 331670_3 7/25/07 •*" 468* (c) Section 8.1(e) to the Declaration is added as follows: (e) In the event the Open Space Areas are conveyed in fee to the Association as described in Section 8.2, the Open Space Areas shall constitute Common Area for purposes of this Declaration. After such conveyance, the Open Space Areas shall be used and shall be maintained by the Association in accordance with the requirements set forth in the Conservation Easement (defined in Section 8.2 below). 3. Open Space Areas. Section 8.2 of the Declaration is amended and supplemented to add the following Section 8.2(f) as follows: (f) Declarant initially intended to convey in fee the Open Space Areas to the City or its designee or to a landscaping and maintenance district or other similar entity formed to maintain the Open Space Areas. As of the date this Amendment is recorded in the Office of the County Recorder of San Diego County, Declarant intends to instead convey in fee the Open Space Areas to the Association, subject to the following: (i) Unless the Open Space Areas are conveyed to and accepted by the City or its designee or to a landscaping and maintenance district or other similar entity formed to maintain the Open Space Areas prior to the following date, Declarant shall hold fee title to Open Space Areas until February 6, 2011 ("Transfer Date"), after which time Declarant shall convey to the Association, and the Association shall accept from Declarant, the Open Space Areas in fee. (ii) Maintenance of the Open Space Areas shall be subject to the requirements set forth in that certain Conservation Easement dated as of March 5, 2007 executed by Declarant in favor of the City and to be recorded in the Office of the County Recorder of San Diego County ("Conservation Easement"). (iii) All costs associated with maintenance of the Open Space Areas and the performance of the "Grantor" obligations set forth in the Conservation Easement from the date this Declaration is recorded in the Office of the County Recorder of San Diego County through and including the Transfer Date shall be the sole responsibility of Declarant. After the Transfer Date, all costs incurred for the maintenance of the Open Space Areas and the performance of the "Grantor" obligations assumed by the Association under the Conservation Easement, if any, shall be the sole responsibility of the Association. Such costs incurred by the Association shall be included in the assessments levied by the Association on each Owner of a Parcel for the improvement and maintenance of the Common Area. (iv) Declarant shall give written notice to the City and the United States Army Corps of Engineers of the intent to transfer to the Association any interest in and to the Open Space Areas at least forty-five (45) days prior to the date of such transfer. Fcraon Rocr*ay Buiitat Park O 0170I0.02M 331670 3 7/25/07 "J" 4686 4. Modification; Effectiveness. Except as stated above, the Declaration remains unmodified. This Amendment shall become effective upon recordation of this Amendment in the Office of the County Recorder of San Diego County. IN WITNESS WHEREOF, Declarant has signed and made this Amendment as of the date first above written. "Declarant" FENTON RACEWAY LLC, a California limited liability company By: H. G. FENTON COMPANY, a California corporation, its Authorized Agent Bv: Print Name: Michael* P. Noil Its: President and CEO By:_ Print Name: Its: Chief Financial Officer Fmum Racmay Businea Part • A 0170I002W 331670 3 7/25/07 ~t~ 468? STATE OF CALIFORNIA COUNTY OF On GtU4'2ff,30Df.before me,^™^^^^^rt^~ *(here Insert name and title of the officer) Kk-byra (ptMl< be officer) Q v personally appeared. »f , personally known to me (ot-provcd-to me of» evidence) to be the person(e) whose namefs) is/af* subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/thek authorized capacity^ies), and that by his/hor/thoir signature^ on the instrument, the person(&), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature CLARE CHAVEZ ^^ Commission 91466393 Notary. Public • Cotton*) San Dtego County Expires Jan 29.2008 (Seal) STATE OF CALIFORNIA COUNTY OF )ss. J On personally appeared. . before me, (here insert name and title of the officer) , personally known to me (or proved-to me-OH the bacis of satisfactory evidence) to be the person(&) whose name^s) is/are subscribed to the within instrument and acknowledged to me that he&he/they executed the same in his/her/their authorized capaciry^ies), and that by his/her/their signature^) on the instrument, the person^*), or the entity upon behalf of which the person(e) acted, executed the instrument. WITNESS my hand and official seal. Signature CLARE CHAVEZ ' ' Commission • 1466W Notary. Public r CaBftwrto San Dtego County My ComnvExptes Jan 29,20081 (Seal) Fenton Raceway Business Park 7/25/07 -5-017010.0209 331670 3