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HomeMy WebLinkAboutCUP 203; Jeff Blankenship; Conditional Use Permit (CUP)Ozone Change UGeneral Plan Amendment U!tknkative Tract Map Planned Unit Developent 0 Major condasninium Permit Ouor condaminium Permit OPrecise Dwelopnent Plan 13 specific Plan 0 Site Devdopent Plan P3Condlitional Use Pdt U variance OPlanning wssion Determination bMaster Plan DSpial use Pdt oonq?lete Description of project (attach additional sheets if necessary) A completed commercial cdmplex at 3138 Roosevelt St., Carlsbad, CA. A CUP is being requested for the purpose of assemblage in a portion of this building (approx. 1,000 Sq. Ft.). Assemblage will be once a week (Sundays krom 10-11 AM) and on Thanksgiving Eve, Christmas Eve and New Year's Eve evenings. Group participation may range from 10-50 on Sundays only. Eveninc meetings ot unscheduled classes will have approximately 12 people in attendance. Location of Project 3138 Roosevelt St., C-A 921108 %d Description (complete) Lots lO,ll,12 and 13 jn Rlock 40 of t-k Towdte nf Carlnhwd; roiinty nf San Diego, State of California, according to Map thereof No. 535, recorded in the Office of the County Reeef San llkqn Pminfv- M-v 7- 1888. Assessors PaPkel b&mb&r - - f 04 I - I_-- Zone misting md Use C- 2 c-2 Propsed Zone Site Acreage Same/Existing 14,000 Sq. Ft. Same/Existing I . 1 Amlicant mer JEFF BLANKENSHIP, ET.AL. APPLICANT : REQUEST AND mTI0N: CUP to allow an assemblage once a week and Thanks- 'giving, Christmas and New Years Eve, on the east side of Roosevelt between Oak and Pine Avenue. LEGAL DESCRIPTION: Lots 10, 11, 12 and 13 in Block 40 of the townsite of Carlsbad, according to flap 535'filed May 2, 1888. Assessors parcel -: 204 - 022 - 02,03,04 Acres -32 No. of Lots 1 GENWG PLAN AND ZONING - General plan and Use Designation CBD Density Allatred N/A Density Proposed N/A Existing Zone c-2 Proposed Zone N/A Surrounding Zoning and Land Use: Zoning Land Use SChcQl North C-2 south c-2 East R-3 West c- 2 7 District Comer cia1 SFD SFD Boys Club rmBLIC FACILITIES Car 1 sb ad Water District Carlsbad Sewer District Carlsbad mu's N/A Public Facilities Fee Agreement, dated May 26 , 19 81 (other: 1 X Negative Declaration, issued 1r Log No. E.I.R. Certified, dated Other , - 't I. a- a - If after the informatior )a have suhrnitted has been rev: td, it is determined that further information is required, you will be so adv, 3. APPLICANT : Jeff Blankenship, et a1 Name (individual, partnership, joint ventiire, corporation, syadication) 3138 Roosevelt St., Carlsbad, CA 92008 Business Address (714) 434-1051 Telephcne Number Land Planners, Jean Jensen AGENT : --- Name 2406-C Altisma Way, Carlsbad, CA 92008 Business Address '(714) 438-0178 - (1 &a 2) Telephone Nunber (1) Susan J. Blankenship MEMB~m: (2 ) Jeffrey Blankenship 344 Chinquapin St., Carlsbad, CA ~ame (individual, partner , joint Home Address venture, corporation, syndication) (1) 2906 State St., Carlsbad, CA 92008 (2)3138 Roosevelt St., Carlsbad, CA 92008 (1 2) Busir,ess Address (1) (714) 729-2477 (2) (714) 434-1051: (714) 729-5013 _Y-- - Telephone Nmsr Telephone ??umber Thomas H. Alexander 10389 Avenida Magnifica, San Diego __- --__I--- 92131 Home Address -&e 3138 Roosevelt St., Carlsbad, CA 92008 3u s i ne s s Addre s s 4) 566 3 8&I15 (714) 434-4074 Telephone Xmber .-- - v- (Attach more sheets if necessary) I/Ne decl-are under penalty of perjury that the information contained in this dis- closure is true and correct and that it will remain true and correct and may be' relied upon as being true and correct until amended. n No.: CUP-203 -: 5-28-81 APPT;I-: BLAM(E"IP, JEFF, et a1 eekly meetings (Sundays) & Thanksgiving eve, Christmas Eve, New Year's Eve REaJSfi posted: Prior wliance: published: Filed: Filed: IMPm mm: Notice of Notice of mtioe of Preparation: Canpletion: Detexnhation: E%A"G aM4rssIcJN 1. Date. of Hearing: 2. Publication: 3. mtice to mprty owner^: 7- 7- 8 4. ResolutionNo. Date: AcTIm: \rJ;&4~wy .... .. (c3Ontinued b: 5. Appeal: 1, Date of H.earing: 2. Notices bCity Clerk: .. 3, Agenda Bill= 4. Resoluti0n~- Date: mm: Staff Report 20 mlicant: .. Resolution toBplplicant: .. ASSESSOR'S MAP - 1 TYLER n OAK .. -. .._ PI NE n 3\38 ROOSEVELT ST A . AVE r--- I. .AVE . n 1-1 .. 1 -_ I. -_ .. .. TRASH PARKING GARAGE 390 SQ FT, BE D c B A co o, 505SQFT 505SQFT 505SQFT 539SQFT- d d GARAGE 390 SQ. FT. GARAGE 550 SQ. FT 286 SQ, FT. i 406 SQ. FT. K 1,018 SQ FT. J 77J SQ. FT. m: 9 503SQ. FT. 503 SQ. F1 - N 496 SQ. FT. 0 SQ FT. lr SECOND FLOOR Elm Ave Oak Ave. SITE 3138 Rwsevelt St Carlsbod ASHW I LL-BURKE Rancheros Drive Marcos, California (714) 744-7200 SITE MAP Now Leasing Roosevelt Plaza 31 38 Roosevelt Street Car Is bad, Calif or nia An Off ice / /Retail Development By: The Investor’s Company Exclusive Agents TOM WORTH WILEY URQUHART 332 Rancheros Drive San Marcos, CA 92069 (714) 744-7200 The inlormalion rontained herein has heen obtained from sources we deem reliablc We cannot however asslime resuonsibilbtv lor its accdracv 7720 Cardinal Court, San Diego, California 921 23 (71 4) 565-61 71 ZONING MAP - T -r 'I *I I 25 n - I BO w 3 Q I i. / 'I 'I !I I' 1- .. I- i. 75 q,' * [CHANGES 1 II 4 I C. .I .. , n Y ,. 1 r < 1 I 1 I. w 0 0 - 4 tl H c VI 0 . .. .. .* 0 S r:' - P 8 ROOSEVELT $\ ' 3' ''h b 25 I I. it I I 'I I I I . *I - I' * ' io I 1 I ; I .. ,LI \- * - I I PUBLIC FACILITIES FEE REQUIREMENTS City Council Policy Number 17 requires that all deveiopirs requesting a discretionary action for a project pay a public facilities fee in the amount of 2.0 percent of the building valuation. The fee is computed by the Building Department and paid at the time the building permit is obtained. In the case of a condominium conversion, the fee is calculated on the building valuation at the time the fee is paid and the fee must be paid prior to obtaining a final map on the project, In addition to the above a completed, signed, and notarized agreement to pay the public facilities fee must be submitted with any application for a discretionary action.. This agreement form should be completed by the applicant and submitted as follows: 1. Select the appropriate form for either (a) the developer and owner are the same party, or (b) the developer and owner are different. 2. Fill in the date the agreement is completed, the name and address of the developer (and owner, if appropriate) and state if each is an individual, ' partnership, corporation, etc. 3. Fill in the type of project proposed to be constructed, such as "a 12-unit condominium".or tc30,000 square foot shopping center" etc. ,* and the proposed . name (if any). 4. 5. Fill in the date the request-will be (or was) submitted and the type of request, such as ''a tentative map", a "condominium permit", "rezoning" etc. Fill in the short legal description of the property on the last sheet. 6. Sign the form in the presence of a notary and have the notary attach an acknowledgement of execution to the form, a. Fill out the title of the person signing the form (general partner, vice-president, etc.). officer, the corporate seal must be stamped by the signature. The notary must be of the correct form (individual, partnership, corporation) and$e completely and properly filled out. If the agreement is signed by a corporate b. The agreement must be neat and readable. returned by the County unrecorded. agreemerit and one copy. A copy of the deed or prelirninary title report must accompany each application. - 7, Illegible copies will be Submit the original of the 8. .Rtl A : ms 5/5/81 ... - .. . After recording return to: City of. Carlsbad 1200 Elm Ave. Carlsbad, CA 92008 AGREEMENT BETWEEN DEVELOPER-OWNER AND THE CITY OF CARLSBAD FOR THE PAYMENT OF A PUBLIC FACILITIES FEE THIS AGREEMENT is entered into this 26th day of May I 81, by and between Jeff Blankenship, et a1 19- I (name of developer-owner) a partnership/owner ,hereinafter referred to as (Corporation, partnership, etc.) "Developer", whose address is 3138 Roosevelt St I (street) Carlsbad, CA 92008 , and THE CITY OF (City, state, zip code) CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "City", whose address is 1200 Elm Avenue, Carlsbad, California, 92008. W I T N E S E E T H: WHEREAS, Developer is the owner of the real property described on Exhibit "A", attached hereto and made a part of this agreement, hereinafter referred to as "Property" ; and WHEREAS, the Property lies within the boundaries of City; and WHEREAS, Developer proposes a development project as follows: Only a CUP is being requested for the sole purposes of assemblage in approximately 1,000 Sq. Ft. of the already constructed commercial building at 3138 Roosevelt St., Carlsbad, CA 92008.' CUP 103 . - .. 1 .. on said Property, which development carries the proposed name ' of 3138 Roosevelt St.' and is hereafter referred to as "Development"; and WHEREAS, Developer filed on the 26th day of May I 19 - 81, with the City a request for a CUP (hereinafter referred to as "Request"; and WHEREAS, the Public Facilities Element of the City General Plan requires that the City Council find that all public \facilities necessary to serve a development will be available concurrent with need or such development shall not be approved . (said element is on file with the City Clerk and is incorporated by this reference; and WHEREAS, Developer and City recognize the correctness of Council policy NO. 17, dated August 29, 1979, on file with the City Clerk and incorporated by this reference, and that the City's public facilities and services are at capacity and will not be available to accommodate the . additional need for public facilities and services resulting from the proposed Development; and WHEREAS, Developer has asked the City to find that public facilities and services will be available to meet the future needs of the Development as it is presently proposed: but the Developer is aware that the City cannot and will not be able to make any such finding without financial assistance to pay for such services and facilities; and, therefore, Developer proposes 2. I i to help satisfy the General Plan as implemented by Council Policy No. 17 by payment of a public facilities fee. NOW, THEREFORE, in consideration of the recitals and the covenants contained herein, the parties agree as follows: 1. The Developer shall pay to the City a public facilities fee in an amount not to exceed 2% of the building permit valuation of the buildings or structures to.be constructed in the Development pursuant to the Request. The fee shall be paid prior to the issuance of building or other construction permits for the develop- . ment and shall be based on the valuation at that time. This fee shall be in addition to any fees, dedications or improvements required pursuant to Titles 18, 20 or 21 of the Carlsbad Municipal Code. A credit toward such fee shall be given for land which has been dedicated for park purposes or for any fees paid in lieu thereof pursuant to Chapter 20.44 of the Carlsbad Municipal Code. Developer shall pay a fee for conversion of existing buildings or structures into condominiums in an amount not to exceed 2% of the building permit valuation at the time of conversion. The fee for a condominium conversion shall be'paid prior to the issuance of a condominium conversion permit as provided in Chapter 21.47 of the Carlsbad Municipal Code. Condominium shall include community apartment or stock cooperative. The terms "other construction permits", "other construction permit" and "entitlement for use" as used in this agreement, cxceptin reference to mobilehome sites or projects, shall not refer to grading permits or other permits for the construction of underground or street improvements unless no other permit is necessary prior to the use or occupancy for which 3. the development is intended. Developer shall pay to City a public facilities fee in the sum of $1,150 for each mobilehome space to be constructed pursuant to the Request. The'fee shall be paid prior to the issuance of building or other construction permits for the development, This fee shall be in addition to any fees, dedications or improvements required according to Titles 18, 20 or 21 of the Carlsbad Municipal Code, A credit toward such fee shall be given for land which has been dedicated for park purposes or for any fees paid in lieu thereof pursuant to Chapter 20.44 of the Carlsbad Municipal Code. 2. The Developer may offer to donate a site or sites for public facilities in lieu of all or part of the financial obligation . agreed upon in Paragraph 1 above, If Developer offers,to . donate a site or sites for public facilities, the City shall consider, but is not obligated to accept the offer. 'The time for donation and amount of credit against the fee shall be determined by City prior to the issuance of any building or other permits. Such,determination, when made, shall become a part of this agree- ment. required pursuant to Titles 18 or 20 of the Carlsbad Municipal Code. Sites donated under this paragraph shall not include improvements 3. This agreement and the fee paid pursuant hereto are required to ensure the consistency of the Development with the City's General Plan. the City will not have the funds to provide public facilities and If the fee is not paid as provided herein, services, and the Development will not.be consistent with the General Plan and any approval or permit for the Development shall 4. . ... - I. ..' .. . be void. No building or other construction permit or entitlement for use shall be issued until the public facilities fee required by this agreement is paid. 4. City agrees to deposit the fees paid pursuant to this agreement in a public facilities fund for the financing of public facilities when the City Council determines the need exists to provide the facilities and sufficient funds from the payment of this and similar public facilities fees are available. 5. City agrees to provide upon request reasonable assurances to enable Developer to comply with any requirements of other public agencies as evidence of adequate public facilities and services sufficient to accommodate the needs of the Development herein described. 6. All obligations hereunder shall terminate in-the event the Requests r;.ade by Developer are not approved. 7. Any notice from one party to the other shall be in writing, and shall be dated and signed by the party giving such notice or by a duly authorized representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in one of the following manners: 7.1 If notice is given to the City by personal delivery thereof to the City or by depositing same in the United States Mail, addressed to the City at the address set forth herein, enclosed in a sealed envelope, addressed to the City for attention of the City Manager, postage prepaid and certified. 7.2 If notice is given to Developer by personal delivery thereof to Developer or 'by depositing the same in the United States .. Mail, enclosed in a sealed envelope, addressed to Developer at the address as may have been designated, postage prepaid and certified. 8. ThiB agreement shall be binding upon and shall inure to the benefit a€, and shall apply to, the respective successors and assigns of Developer and the City, and references to Developer or City herein ahall be deemed to be reference to and include their respective sweessors and assigns without specific mention of such successors and assigns. If Developer should cease to have any interest in the Property, all obligations of Developer hereunder shall terminate; provided, however, that any successor of Developer's interest in the Property shall have first assumed in writing the Developer's obligations hereunder. 9. This agreement shall be recorded but shall not create a lien or security interest on the Property. When thepbligations of this agreement have been satisfied, City shall record a release. I// /// /// /// /// IN'WITNESS WHEaOF, this agreement is executed in San Diego County, California as of the date first written above. DEVELOPER-OWNER: CITY OF CARLSBAD, a municipal corporation of the State of California ' Jeff Blankenship, et a1 Bv BY City Manager (Title) + such partnership executed the same. FOR NOTARY SEAL OR STAMP I ' OFFICIAL SEAL DENISE MARSHALL Notary Public - Calif. Principal Office In I SAN DIEGO COUNTY (Ndtarial acknowledgement of execution by DEVELOPER-OWNER must ' be attached.) . 7. .- EXHIBIT "A" LEGAL DESCRIPTION Lots 10, 11, 12, and 13 in Block 40 of the Townsite of Carlsbad, County of San Diego, State of California, according to Map thereof No. 535, recorded in the .Office of the County Recorder of San Diego County, May 2, 1888. , -. CERTIFICATE AND AGREEMENT OF LIMITED PARTNERSHIP OF ROOSEVELT STREET ASSOCIATES This Certificate and Agreement of Limited Partnership (the by and among THOMAS H. ALEXANDER, as to a 50% General Partner interest, and JEFFREY BLANKENSHIP and SUSAN J. BLANKEMSHIP, HUSBAND AND WIFE AS TO A 50% General Partner interest (collectively the "General Partner" herein) 8 and those persons who execute this or a counterpart of this Agreement as Limited Partners (the "Limited Partners"). The term "Partners" as used in this Agreement means and includes both the General Partner and the Limited Partners, The parties, in consideration of the mutual covenants herein contained, hereby form this Limited Partnership (the "Partnership") pursuant to Title 2, Chapter 2 of the California Corporations Code, sometimes known as the "Uniform Limited Partnership Act", on the following terms and conditions: "Agreement"), is being entered into as of 1981, A2TICLE I. FORMATION AND GENERAL ORGANIZATION. 1.1 Name. - The business of the Partnership shall be conducted under the name ROOSEVELT STREET ASSOCIATES. The General ?artner, in its discretion, may change the firm name and/or may aciopt fictitious business names at any time and tfrorn time to time. 1.2 Place of Business. The principal place of business of the Partnership shall be 2910 Jefferson Street, Carlsbad, California, 92008, OK at such other place in San Diego County, California, as the General Partner may from time to time designate in writing. 1.3 Addresses of Limited Partners. The addresses of the Liinited Partners shall be those stated opposite their names on the signature pages to this Agreement. A Limited Partner may change her address by written notice to the General Partner, which notice shall become effective upon delivery to the General Partner. 1.4 Original and Counterpart Agreements. The General Partner is hereby authorized to remove the signature page from each counterpart copy of this Agreement and to attach all such signature pages to a single copy of this Agreement which shall be deemed the "Executed Agreement". 1 1.5 Purpose of the Partnership. The Partnership has been formed for the specific purpose of acquiring, holding, leasing, and ultimately selling a new commercial complex at 3138 Roosevelt Street, Carlsbad, California (the "Property"), further described in Exhibit "A", attached hereto and made a part'hereof by reference. The complex is presently owned by the General Partners and will be contributed to the Partnership by them at a value of $< ># less encumbrances of approximately $381,000, for < > partnership Units (as defined below). The encumbrances consist of the following: Note held by < > and secured by a first trust deed on the Property Approx. $326,000 Note held by < > and secured. by a second trust deed on the Property Approx, $55,000 Tot a1 encumbrances $3 81,000 The capital contribution of the initial Limited Partner - $55,000 - will be used to pay off in full the $55,000 second trust deed obligation. The Partnership may engage in such other businesses or activities reasonably related to the' foregoing as may be necessary, convenient or desirable in the discretion of the General Partner for the conduct or promotion of the primary business of the Partnership. 1.6 Term. - The term of the Partnership shall commence on the date of recordation of the Certificate of Limited Partnership in the Office of the County Recorder of San Diego County, California, and shall continue until the'first to occur of the following specified dates: 1.6.1 December 31, 1995; 1.6.2 The date on which the Partnership is dissolved by operation of law or judicial decree or in accordance with the dissolution provisions contained in Article XI of this Agreement. ARTICLE 11. CONTRIBUTIONS TO CAPITAL ASSESSMENTS. 2.1 Original Partnership Units, ' The General Partner intends initially to sell and 2 issue < > shares of Partnership interests (*Units") to the Unit to raise capital of $55,000 in addition tu its contribution of equity in the Property of $ Contribution of Equity in Property. The General Partner shall contribute its $ equity in the Property to the Partnership in exchange for Partnership Unj.ts. The General Partner shall be considered a Limited Partner, to the extent of its investment Unit holdings. initial Limited Partner, at a purchase price of $ Per 2.1.1 Issuance of Units to General Partner for 2.1.2 Issuance of Units for Cash. The Limited Partner's capital contribution attributable to the Units described in Paragraph 2.1, shall be in the amount of $ for each Unit purchased, payable in full at the time of executing this Partnership Agreement. 2.1.3 Ownership of Units. The number of Units purchased by each Partner (Limited or General) is stated on the signature page of this Agreement executed by each such Partner, opposite his signature. No fractional Unit shall be issued or sold, and Units may not be acquired in the name ak' more than one person, except for husband and wife. - 2.1.4 Interest. Contributions to the capital Of the Partnership shall not bear interest. 2.1.5 Withdrawal of Capital, No partner may withdraw any portion of his capital contribution to the Partnership without the written consent of the General Partner and the consent or approval of a najority-in-interest of the Limited Partners except on dissolution of the Partnership. Nothing herein contained is intended or should be construed as limiting the General Partner's authority to make pro rata distributions of operating revenues or capital pursuant to the provisions of Paragraphs 4.1 and 4.2. ARTICLE 111. PROFITS AND LOSSES. Fiscal Year. ... The Partnership shall adopt for tax purposes a calendar year as its fiscal year. 3 3.2 Definitions of Profits and Losses. The terms "net profits" and "net losses" as used in this Article shall mean and refer to taxable income and loss for Federal income tax purposes. Revenues and expenses for financial and tax reporting purposes shall be determined by the cash basis method of accounting. 3.3 Allocation of Profits and Losses. As soon as practicable after the close of each Partnership year, the net profits and losses of the Partnership including each class of income, gain, loss, deduction or credit required to be stated separately by Section 702(a) of the Internal Revenue Code of 1954, as amended, shall be divided among and charged against the Partners as follows: Profits and losses shall be allocated to the Partners in the ratio in which the number of Units owned by each of them at the close of such fiscal year bears to the number of Units owned by all of the Partners as of that date. Allocations of profits, losses (deductions) and credits shall result in a corresponding increase or decrease in the capital account of each Partner. All payments made to the General Partner pursuant to the provisions of Paragraph 6.6 shall be treated as an item of expense. 3.4 Allocation of Units Transferfed. In the event the transfer of a Partnership Unit occurs during a fiscal year, profits and losses attributable to such Unit for such fiscal year shall be allocated between the transferor and the transferee on the basis of the number of days that the Unit transferred was held by each of them. Notwithstanding such allocation, distributions attributable to such Unit shall only be made to the holder of the Unit as of the distribution date defined in Paragraph 4.1. 3.5 Allocation to Units Issued During Initial Fiscal Year. __I For the purposes of allocation of profits and losses during the initial fiscal year of the Partnership, Units issued during such initial fiscal year shall all be trested as if the same were issued on the date of the formation of the Partnership notwithstanding the actual date of issuance of such Units. ARTICLE IV. DISTRIBUTIONS. 4.1 Cash Available for Distribution. 4 the Partnership to the General Partner, and shall be repaid to the General Partner in accordance with the terms of such loans out of the gross receipts of the Partnership with interest at the maximum legal rate or a lower rate if the General Partner so determines. Such loans shall be deemed an indebtedness owed by the Partnership to the General Partner and shall not be deemed a capital contribution of the General Partner. Any and all unpaid loans together with accrued and unpaid interest, shall become immediately due and payable upon the dissolution of the Partnership or upon its ceasing to actively carry on business operations or upon the General Partner ceasing to be the General Partner. ARTICLE VI. 6.1 RIGHTS AND DUTIES OF THE GENERAL PARTNER, Full Manaqement . The General Partner shall have full, exclusive and complete authority and discretion in the management and control of the business of the Partnership and shall make all decisions affecting the business of the Partnership. With regard to arriving at decisions under this paragraph, the individual General Partners shall have the following voting rights: Alexander - 1 vote; the Blankenships as a couple - 1 vote. Should any vote not be unanimous, the parties shall endeavor to resolve their dispute in good faith. If this fails, the issue will be settled by arbitration: Alexander shall appoint one arbitrator, the Blankenships another,. the two chosen shall appoint a third, and the decision of a majority of the arbitrators shall be binding on the parties. The powers of the General Partner shall include, but shall not be limited to, the power: 6.1.1 Borrowinq. To borrow money and, if security is required therefor, to mortgage or subject any Partnership assets to any security device, to obtain replacements of any Partnership debt or security device, to pay in whole or in part, refinance, increase, modify, consolidate, or extend any debt or security device, all of the foregoing, at such terms and in such amounts as the General Partner, in its sole discretion, deems to be in the best interests of the Partnership; 6.1.2 Insurance. To acquire and enter into any contract of insurance which the General Partner deems necessary or appropriate for the protection of the Partnership and the General Partner, or the conservation of the Partnership assets, or for any other purpose, convenient or beneficial to the Partnership; -. 6.1.3 Hiring and Firinq. To employ and discharge persons in the operation and management of the business of the Partnership; 6.1.4 Reports. To prepare or cause to be prepared, reports, statements and other relevant information for distribution to the Partners, including annual reports; 6.1.5 Banking, To open accounts and deposit and maintain funds in the name of the Partnership in banks and savings and loan associations: 6.1.6 Tax Elections. . To cause the Partnership to make or revoke any of the elections provided for in the Internal Revenue Code of 1954, as amended, and any similar provisions enacted in lieu thereof; 6.1.7 Recordinq Amendments. To document and execu-te amendments to this Agreement and to record such amendments, as necessary, to reflect the sedition or substitution of Limited Partners or the reduction of capital accounts on the return of capital to the Partners; 6.1.8 Expenditure of Capital, To expend the capital and revenue of the Partnership in the furtherance of the Partnership's business; 6.1.9 Contractinq. To enter into and execute such agreements, documents and instruments as are customarily employed in the basiness of the Partnership or as may be deemed by the General Partner to be necessary or appropriate to the proper operation of the Partnership, including but not limited to employing, at the Partnership's expense, such agents, brokers, independent contractors, attorneys and accountants as it considers reasonably necessary; 6.1.10 Sale of Assets. .- To sell, lease, trade, exchange or otherwis6 7 dispose of all or any portion of Partnership property or assets upon such terms and conditions and for such consideration as the General Partner deems appropriate; provided, however, that the General Partner shall not sell or dispose of substantially all of the Partnership's property or assets without the prior written consent of a majority-in-interest of the Limited Partners; 6.1.11 Expense. organizational Organizational and Preformation Operating To pay out of Partnership funds any and all expenses incurred in the creation of the - Partnership and/or the offering and sale of Units, and to reimburse the General Partner for any operational expenses or capital expenditures incurred by the General Partner in advance of the formation of the Partnership for the benefit of the Partnership. 6-1-12 Dealing With Real Property. To create, by grant or otherwise, easements and servitudes; to alter, improve, repair, raze, replace, and rebuild the Property; to let or lease the Property for any period, and for any purpose, including exploration for and removal of gas, oil, and other minerals and natural resources; to pay, collect, compromise, arbitrate, pr otherwise adjust any and all claims or demands of or against the Partnership; to act for the Psrtnership in -all transactions concerning the Partnership's real or personal property or business affairs, including the execution of all contracts, deeds, options, loan obligations, deeds of trust, and notes. 6.2 Additional Riqhts and Powers. The General Partner shall also possess and may exercise all of the rights and powers of General Partners as more particularly provided by the Uniform Limited Partnership Act of the State of California, or otherwise authorized under applicable law, except to the extent any such rights may be limited or restricted by the express provisions of this Agreement. 6.3 Limitations on Authority of General Partner. The General Partner shall not, without the prior written consent of all Limited Partners, do any act prohibited by California Corporations Code Section 15509, Eowever, the General Partner may admit substituted Limited Partners in accordance with the provisons of ARTICLE IX of this Agreement, and additional Limited Partners for cash contributions to capital, with a fair reallocation of the interests of then 8 existing General and Limited Partners in Partnership capital, profits and losses, based on an appraisal of the fair market value of the Partnership's equity in the Property at the time of admission of such additional Limited Partner(s) by an independent appraiser. 6.4 Competinq Enterprises. The General Partner shall devote such time to the Partnership affairs as shall be required to effectively manage the business of the Partnership. The individual General Partners shall not be required to devote their full time and attention to the affairs of the Partnership. The individual General Partners shall have the right to participate in any other business venture or endeavar, including without limitation, joint ventures and other partnerships engaged in any field of business activity. . 6.5 Employment of Affiliated Persons. The General Partner may employ at the expense of the Partnership such persons, firms, or corporations related to or affiliated with the General Partner, as the General Partner in its sole discretion and judgment shall deem advisable for the proper operation of the business of the Partnership. However, any such employment agreements entered into with affiliated persons, firms or corporations shall be embodied in written documents and the compensation therein shall not exceed the amount which would be charged by non-aff iliated competent persons, firms or corporations for the same or similar services. 6.6 Indemnity. The Partnership shall, to the extent of its assets, indemnify and hold harmless the General Partner (including its principals , employees and agents) from all loss, liability and expense, including, but not limited to, attorneys' fees as follows: 6.6.1 With respect to any loss, liability or expense arising from errors in judgment or any acts or omissions of any such parties; 6.6.2 With respect to any loss, liability or expense suffered by the General Partner solely by virtue of its acting as General Partner for the Partnership in connection with its activities. The parties indemnified shall not be liable to the Partnership for any acts or omissions covered by such indemnities or for any loss suffered by the Partnership in 9 connection with its activities, upon the express condition that if such loss arises out of any action or inaction of the General Partner, the General Partner must have determined, in good faith, that the course of conduct followed by the General Partner was in the best interests of the Partnership and such course of conduct must not have constituted gross negligence or gross misconduct by the General Partner. ARTICLE VII. RIGHTS OF LIMITED PARTNERS. 7.1 Limitation of Liability. No Limited Partner shall be subject to as'sessment and in no event shall any Limited Partner be personally liable fox any of the debts of the Partnership or any of the losses thereof except to the extent of: (a) any money or property wrongfully paid or conveyed to the Limited Partners on account of their contributions; and (b) all profits of the Partnership which have been earned for the account of, but not distributed to the Limited Partners. 7.2 No Manaqement Authority. No Limited Partner, as such, shall take part in the management of the business, transact any business for the Partnership, or have the power to sign for or bind the Partnership to any agreement or document. ARTICLE VlIl. VOTING 8.1 Matters Requirinq Vote of a Majority-In-Interest. The Limited Partners may by the vote or written consent of a majority-in-interest of the Limited Partners, take any of the following actions: 8.1.1 Amend this Agreement except as to those provisions referred to in Paragraph 8.2. 8.1.2 Remove the General Partner and appoint a replacement General Partner and, if a replacement General Partner is appointed, elect to continue the existence of the Partnership. 8.1.3 Approve the sale or hypothecation of all or substantially all of the assets of the Partnership. 8.1.4 Appoint a "Liquidating General Partner' as provided for in Paragraph 10.2. .. 8.2 Limitations on Amendments. * 10 Notwithstanding the provisions of Paragraph 8.1, the Limited Partners may not alter, change or affect by amendment: 8.2.1 The limited liability of any Limited Partner. 8.2.2 The rights, duties, obligations, liabilities, privileges, interest or compensation of the General Partner without the written consent or approval of the General Partner. 8.3 Matters Requiring Vote of Three-Fourths of Limited Partners. The Limited Partners may cause the termination or dissolution of the Partnership by the vote or written consent of Limited Partners holding three-fourths of the Units held by all Limited Partners. Each Limited Partner shall have one vote for each Partnership Unit. The yote of 75% of the Units held by all Limited Partners is necessary to terminate or diss.olve the Partnership. 8.4 Definition of mMajority-In-Znteresto. On all matters on which Limited Partners may vote, each Limited Partner (including the General Partner to the extent of its Unit holdings) shall have one vote for each Partnership Unit owned by such Limited Partner, The term "majority-in-interest of the Limited Partners" as used in this Agreement means those Limited Partners holding more than 50% of the Partnership Units then held by all Limited Partners. ARTICLE IX, TRANSFER OF PARTNERSHIP INTERESTS. 9.1 Restrictions on Transfer of Units of Limited Partners. No Partnership Unit owned by any Limited Partner may be offered for sale, sold, hypothecated or otherwise transferred or assigned except in compliance with each of the following provisions to the satisfaction of the General Partner and unless Paragraph 9.2 is first complied with. 9.1,l Beneficial Interests. No Limited Partner shall sell, assign, hypothecate or otherwise transfer any beneficial interest in any Partnership Unit without transferring record ownership of such Unit. 9.1.2 Fractional Interests, No fractional interests in any Unit may be transferred. 11 9.1.3 One Year Limitation. No Partnership Unit may be offered for sale, sold, assigned, hypothecated or otherwise transferred prior to the expiration of one year following the last sale by the Partnership of any Partnership Units. 9.1.4 Statement of Facts. A written statement of the facts pertaining to any proposed transaction under this Article must first be furnished to the General Partner and all documents to be used in connection with such proposed transaction must be submitted to the General Partner for its inspection. 9.1.5 Consent of Department of Corporations. The prior written consent Of the Department of Corporations of the State of California shall first have been obtained if such consent is required under the rules and regulations of said Department. 9.1.6 Opinion of Counsel. The General Partner may in its discretion require the opinion of legal counsel satisfactory to the General Partner that the proposed sale or other disposition will not vioiate any Federal or State securities laws, will not jeopardize the status of the original Partnership interests with respect to the nonpublic offering exemption under the Securities Act of 1933, as amended, and will not result in the termination of the Partnership within the meaning of the Internal Revenue Code of 1954, as amended, or in a change in its status as a Partnership under the Code. 9.1.7 Documentation and Expenses The proposed transferor shall have furnished such evidence, certificates, representations and undertakings as counsel for the Partnership may require as a basis for the opinion referred to in Paragraph 9.1.6 above and shall have paid the reasonable expenses incurred by the Partnership with respect to such assignment, including recording fees, transfer taxes, if any, and legal fees. 9.2 Riqht of First Refusal, If a Limited Partner receives an offer from any person to purchase Partner is willing of the amount and all or part of his Units and if the Limited. to accept it, he shall give written notice terms of the offer and the identity of the 12 proposed transferee to the Partners. The Partnership shall have the option within thirty (30) days after notice is given, to purchase the designated Units, on the same terms and conditions as contained in the original notice. The Partnershp shall exercise its option in writing. If the Partnership does not exercise its option within the time provided, that option shall be given to the other Partners for an additional thirty (30) day period, beginning on the day that the Partnership's right to purchase expires. Each of the other Partners shall have the right to purchase on the same terms, a part of the interest of the offering Partner in the proportion that the other Partners' capital Units bear to the total Units of all the Partners who wish to participate in the purchase, provided, however, that the participating Partners may not, in the aggregate, purchase less than the entire interest of the offering Partner. If neither the Partngrship nor the other Partners exercise their rights to purchase the interest, the offering partner may, within sixty (60) days from the date tbe notice is given and on the terms and conditions stated in the notice, sell or exchange his Partnership interest to the purchaser named in the notice. 9.3 Effective Date. Assignments and transfers will be recognized by the Partnership effective the first day of the calendar month following compliance with-all of the conditions specified in Paragraph 9.1 and receipt by the Partnership of written notice executed by the transferor and transferee that such assignment has been consummated. 9.4 Substituted Limited Partner. The transferee of a Unit may become a substituted 9.4.1 Consent of General Partner. Limited Partner upon satisfaction of the following conditions: The transferee shall obtain the written consent of the General Partner, the granting or denial of which shall be in the sole and absolute discretion of the General Partner 9.4.2 Amendment of Certificate, An appropriate amendment of the Certificate of Limited Partnership, which shall be amended at least once each calendar quarter to effect the substitution of substituted Limited Partners. 13 9.4.3 Intention of Transferor. The delivery to the General Partner of the fully executed and acknowledged written instrument of assignment setting forth the intention of the transferor that the transferee become a substituted Limited Partner in his place. 0 9.4.4 Acceptance of Agreement. The transferor and transferee execute and acknowledge such other instruments as the General Partner may deem necessary or desirable to effect such substitution, including the written acceptance, adoption and assumption by the transferee of the provisions of this Agreement and his execution, acknowledgment and delivery to the General Partner of a power of attorney, the form and content of which are more fully described in Article XIV. ' 9.4.5 Transfer Expenses. The payment of the expenses are provided for in Paragraph 9.1.7. 9.5 Death of Limited Partner. Upon the death of a Limited Partner, his personal representative shall have all the rights of a Limited Partner for the pur?ose of settling or managing his estate and such power as the decedent possessed to indicate a successor as a transferee of his interest in the Partnership and to join with such transferee in making application to substitute such transferee as a Limited Partner. ARTICLE X. EFFECT OF WITHDRAWAL OR BANKRUPTCY OF' GENERAL PARTNER. 10.1 Removal of General Partner. Upon the withdrawal of all of the individual General Partners, all authority of the General Partner to act for and in behalf of the Partnership shall terminate except to the extent necessary to deliver the assets, business and properties of the Partnership to any elected successor of the removed General Partner. 10.2 Liquidatinq General Partner. In the event all of the individual General Partners withdraw, and 8 new General Partner is not elected to continue. the business of the Partnership within sixty (60) days of such event, a majority-in-interest of the Limited Partners may 14 appoint a "Liquidating General Partner" who shall hold all of the powers of the General Partner but who shall exercise the same only for the purpose of liquidating the Partnership, winding up its affairs and distributing its assets, ARTICLE XI. DISSOLUTION AND LIQUIDATION. 11.1 Terminatinq Events. The Partnership shall be dissolved only 'upon the occurrence of any of the following terminating events: 11.1.1 Written Consent or Vote. The written consent or affirmative vote to dissolve the Partnership by three-fourths of the Limited Partners. 11.1.2 Withdrawal, Assignment for the Benefit of Creditors or Bankruptcy of the General Partner, Upon the withdrawal, assignment for the benefit of creditors or bankruptcy of each of the individual General Partners. 11.1-3 Expiration of Term. The arrival of Decembef 31, 1995. .. 11.2 Wir.ding Up and Liquidation. In the event of dissolution and final termination: 11.2.1 Sale of Assets. The General Partner shall wind up the affairs of the Partnership, and shall sell all Partnership assets as promptly as is consistent with obtaining, the fair market value thereof * 11.2.2 Distribution of Assets. During the course of liquidation, the assets of the Partnership shall be paid out and distributed in the following order of priority: (a) payment of all debts and liabilities of the Partnership (other than any loans which may have been made to it by any of the Partners); (b) the deduction of any reserves which the General Partner may deem reasonably necessary for contingent or unforeseen liabilities of the Partnership (which reserves Gill be held in escrow); (c) the repayment of any loans made by any of the Partners to the Partnership; (d) the balance remaining, if any, shall be 15 ,- distributed to the Partners in accordance with the priority of distributions under paragraph 4.2. 11.3 General Partner Not Personally Liable for Return of Investments. Each Limited Partner shall look solely to the assets of the Partnership for return of his investment and, if the partnership property remaining after payments made to discharge the debts and liabilities of the Partnership is insufficient to return the investment of each Limited Partner, such Limited Partner shall have no recourse against the General Partner, any other Limited Partner or any other person. 11.4 Winding UE. The winding up of the a€fairs of the Partnership and the distribution of its assets shall be conducted exclusively by the General Partner, or by the Liquidating General Partner, who is hereby authorized to do any and all acts and things authorized by law for these purposes. ARTICLE XII. BOOKS, RECORDS AND FINANCIAL INFORMATION. 12.1 Books and Records. All transactions, matters and things relating to the Partnership's business as are usually entered into books of account kept by persons engaged in business of like character shall be entered in the Partnership books of account. The Partnership shall also maintain a record of the names and addresses of each of the Limited Partners. 12.2 Location of Books and Records, The books of account and a true and correct copy of this Agreement and any and all amendments thereto shall be made available at the principal place of business of the Fartnership, and each Limited Partner shall at all times during reasonable business hours have free access to and the right to inspect and copy the same. 12.3 Tax Returns. The General Partner shall have the books and records of the Partnership examined and Income Tax Returns prepared for the Partnership by independent Certified Public Accountants. Within seventy-five (75) days after the end of each fiscal 'year, the General Partner shall cause all information necessary for the preparation of Limited Partners' tax returns to be; distributed to the Limited Partners. 16 12.4 Reports. The General Partner shall provide each Limited Partner with an annual report within sixty (60) days after the end of each fiscal year, containing the following information: (a) financial statements, including a balance sheet and statement of income, Partners' equity and changes in financial position; (b) a report of the activities of the Partnership during the period covered by the report, including a statement of any distributions to the Limited Partners; 12.5 Bank Accounts. All funds of the Partnership shall be deposited in the Partnership's name in such bank account or accounts as shall be designated by the General Partner, Withdrawals from any such bank account or accounts shall be made on sucb signature or signatures as the General Partner may designate and shall not be commingled with other funds of the General Partner or of any third party. ARTICLE XIII. AMENDMENTS. 13.1 Method of Proposing Amendments. Amendments to th-is Agreement'may be proposed by the General Partner or by Limited Partners owning not less than thirty percent (30%) of the Units owned by all Limited Partners. Following such proposal, the General Partner shall submit to the Limited Partners by registered or certified mail a verbatim statement of any proposed amendment and an opinion of counsel as to the legality of such amendment, The General Partner shall include in any submission its recommendations as to the proposed amendment. The General Partner may require the written consent or may call and require a meeting of the Limited Partners at such place as it may designate to consider and adopt the proposed amendment. All amendments to this Agreement shall require that percentage vote or written consent of the Partners for adoption specified in Paragraph 8.1 {subject to the provisions of Paragraph 8.4) except for those special amendments described in Paragraph 13.2. For purposes of obtaining the written consent of the Limited Partners with regard to a proposed amendment, the General Partner may require response within a specified time and a failure to respond within such time shall constitute consent to the General Partner's recommendation with respect thereto. * The General Partner shall keep all Limited Partners advised of the status of any proposed amendment and shall promptly notify all Limited Partners upon final adoption or rejection of any such amendments. 13-2 Special Amendments. Notwithstanding any provision of this Agreement to the contrary, this Certificate and Agreement of Limited Partnership may be amended by the General Partner acting alone to reflect (a) the addition OK substitution of a Limited Partner: and (b) as to any matter required to make the Certificate and Agreement of Limited Partnership accurately reflect the understanding of the parties. ARTICLE XIV. POWER OF ATTORNEY. 14,l Appointment of General Partner as Attorney-In-Fact, By executing this Agreement each of the Limited Partners hereby appoints the General Partner, and its successors, if any, as true and l'awful attorneys-in-fact, with full power and authority for him, in his name and place to make, execute, acknowledge, publish, record and file: 14.1.1 Amendments to Certificate and Agreement of Limited Partnershlp. Any amendments to this Agreement duly enacted or made in the manner herein provided or required under the - laws of the State of California. . 14.1.2 Statements of Fictitious Business Name. Any instruments or documents including, but not limited to, a Statement of Fictitious Business Name pursuant to Section 17900 and following, of the Business and Professions Code of the State of California, as may be required by, or may be appropriate under, the laws of the State of California or any other jurisdiction in which the Partnership may do business; 14.1.3 Continuation or Dissolution, Any instruments or documents which may be required to effect the continuation of the Partnership, the admission of additional or substituted Limited Partners, or the dissolution or termination of the Partnership, 14.1.4 Other Instruments. Any other instrument or document required to . be filed or recorded by the Partnership under the laws of the state or by any governmental agency, or which the General. Partner deems it advisable to file or record. I. 18 14.2 Survival of Power of Attorney. The authority granted to the General Partner under this Article: 14.2.1 Coupled With an Interest. Is an irrevocable special Power of Attorney coupled with an interest, which shall survive the death of a Limited Partner. 14.2.2 Manner of Exercise. May be exercised by the General Partners for all Limited Partners by executing an instrument (by signature of any one of the individual General Partners) as Attorney-In-Fact for all of the Limited Partners executing any agreement, certificate, instrument or document uith the single signature of such Attorney-In-Fadt for all Limited Partners. 14.2.3 Survival. Shall survive the delivery of an assignment by a Limited Partner of a Unit; except that where the assignee thereof has been approved by the General Partner for admission to the Limited Partnership as a substitute Limited Partner, the Power of Attorney shall survive the delivery of such assignment for the sole purpose of enabling tbe General Partner to execute, acknowledge, file and record any instrument necessary to effect such substitutioo. -- 14.3 Waiver of Contest. The Limited Partners hereby agree to be bound by all representations of the General Partner as their said Attorney- In-Fact authorized under this Agreement and hereby waive any and all defenses which may be available to them to contest, negate or disapprove of the actions authorized under this Agreement- of the General Partner or its successors under the Power of Attorney, and hereby ratify and confirm all acts authorized under this Agreement which the said Attorney-In-Fact may take as Attorney-In-Fact in all respects as though performed by them, ARTICLE XV. MISCELLANEOUS PROVISIONS. 15.1 Notices. Except as otherwise provided herein, any notice which shall be given in connection with.the business of the ' Partnership shall be duly given if reduced to writing and. delivered personally to the party to whom it is authorized to c be given, or if sent by mail or telegraph to the last address furnished by him for such purpose, and to the Partnership at its principal office, or at such other address as the General Partner may hereafter specify in the same manner. 15.2 Validity. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, 15.3 Applicable Law. This Agreement, and the application or interpretation thereof, shall be governed exclqsively by its terms and by the laws of the State of California. 35.4 Bindinq Agreement. This Agreement shall be binding upon the parties hereto, their successors-in-interest, heirs, devisees, assigns, legal representatives, executors and administrators. 15.5 Attorneys' Fees, . In any action between the parties to enforce any of the terms of this Agreement or any other contract relating to the Partnership, or in any action in any other way perta'ining to the Partnership affairs or this agreement, tbe prevailing party in such action shall be entitled to recover as a part of his costs of suit, his reasonable attorneys' fees incurred in connection with the prosecution or defense of such action. 15.6 Number and Gender, In this Agreement, the use of any gender includes all genders and the use of the singular includes the plural whenever the context so requires. 15.7 Captions. Articles, titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof, 20 IN WITNESS WHEREOF, the undersigned General Partner has executed this Agreement as of 1981. GENERAL PARTNER ROOSEVELT STREET ASSOCIATES Partner BY BY Partner BY Partner ADDRESS OF PRINCIPAL OFFICE: 2910 Jefferson Street Carlsbad, California 92008 . .- 21 . STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. On 8 1981, before me, the undersigned, a Notary Public in and for said County and State, personally appeared , known to me to be the persons whose names are subscribed to the within document and acknowledged to me that they executed the same, WITNESS my hand and Official Seal. Notary Public PARTNERSEIP Uh'ITS SUBSCRIBED BY THE BELOW-NAMED LIMITED PARTNER Number of Units Contribution cash !3 . -. IN WITSESS WHEREOF, the undersigned Limited Partner has executed this Agreement as of 8 a9810 LIMITED PARTNER Address STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. On 8 1981, before me, the undersigned, a Notary Public in and for said County and State, personally: appeared I know6 to me to be the person whose name is subscribed to the within document and acknowledged to me that he executed the same. WITNESS my hand and Official Seal. Notary Public _- , i ! 8 I . ~ _. I' Q