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HomeMy WebLinkAboutCT 81-10; Carlsbad Research Center; Tentative Map (CT)Recording Requested By: CARLSBAD RESEARCH CENTER OWNERS ASSOCIATION When Recorded, Return To: Susan M. Hawks McClintic, Esq. EPSTEN GRINNELL & HOWELL, APC 555 West Beech St., Suite 500 SanDieao. CA 92101-2995 SEP ZLB, 2OO1 3 = 13 PH OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. 8HITH, COUNTY RECORDER FEES: 170.00 10083 - 2001-0671492 For Recorder's Use FOURTH AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF CARLSBAD RESEARCH CENTER A Commercial and Industrial Master Planned Development SD 160075v8 10084 TABLE OF CONTENTS RECITALS 1 ARTICLE 1 - DEFINITIONS 4 1.1 Acreage 4 1.2 Allowable Charges 4 1.3 Architect 4 1.4 Architectural Review Committee 4 1.5 Articles of Incorporation 4 1.6 Assessments 4 1.7 Association 5 1.8 Association Management Documents 5 1.9 Association Rules 5 1.10 Beneficiary 5 1.11 Board 5 1.12 Budget • 5 1.13 Building 5 1.14 Bylaws 6_ 1.15 Carlsbad Research Center 6 1.16 City 6 1.17 Common Area 6 1.18 Common Expenses 6 1.19 Condominium Units 6 1.20 Declaration or Fourth Declaration 6 1.21 Design Guidelines 7 1.22 Development 7 1.23 Exhibit 7 1.24 Improvement 7 1.25 Lot : 7 1.26 Maintenance Area Expenses 8 1.27 Maintenance Areas 8 1.28 Master Association Property 8 1.29 Member 8 1.30 Mortgage 8 1.31 Mortgagee 8 1.32 Occupant 9 1.33 Official Records 9 1.34 Owner , 9 1.35 Planned Development 9 1.36 Property Line 9 1.37 Record-Recorded-Recordation 9 1.38 Sign 9 1.39 Specific Plan 9 1.40 Street or Streets : 9 SD160075v8 I 10085 7 1.41 Subject Property 10 ' 1.42 Visible From Neighboring Property , 10 ARTICLE 2 - THE ASSOCIATION 10 2.1 Organization and Membership 10 2.2 General Duties and Powers 10 2.3 Power of Attorney 10 2.4 Membership 10 2.5 Voting Rights 10 2.6 Common Interest Development 11 2.7 One Class of Membership 11 2.8 Approval of All Members 11 ARTICLE 3 - SUBJECT PROPERTY 11 3.1 General Declaration 11 ARTICLE 4-ASSESSMENTS 12 4.1 Agreement to Pay 12 4.2 Collection and Disbursement ., 12_. 4.3 Maximum Assessments 12 4.4 Assessment Allocation 12 4.5 Certificate of Payment 13 4.6 Exempt Property 13 ( 4.7 No Offsets 13 4.8 Delinquency •-. 13 4.9 Personal Obligation; Lien 13 4.10 Foreclosure Sale 14 4.11 Priority of Assessment Lien 14 ARTICLE 5 - REGULATION OF OPERATIONS AND USES 15 5.1 Permitted Uses 15 5.2 Uses Permitted in Area I 15 5.3 Uses Permitted In Area II 18 5.4 Uses Permitted in Area III 18 5.5 Uses Permitted in Area IV 18 5.6 Prohibited Uses 19 5.7 Nuisances 19 5.8 Condition of Property 20 5.9 Maintenance and Repairs 20 5.10 Refuse Collection Areas 21 5.11 Public Utilities 21 5.12 Utility Lines and Antennas 21 5.13 Excavation 21 5.14 Noise Sensitive Use 22 SO 160075v8 5.15 Special Treatment Area 22 5.16 Other Operations and Uses 22 ARTICLE 6 - ARCHITECTURAL REVIEW COMMITTEE 22 6.1 Formation of Committee 22 6.2 Selection of Committee Members 22 6.3 Rules of Procedure 23 6.4 Conformity of Completed Improvements 23 6.5 Functions of Architectural Committee 23 ARTICLE 7 - CONSTRUCTION OF IMPROVEMENTS 24 7.1 Approval of Plans Required 24 7.2 Basis for Approval ; 25 7.3 Review Fee 26 7.4 Result of Inaction 26 7.5 Association Retention of Approved Plans 26 7.6 Proceeding With Work ..- 27 7.7 Completion of Work 27 7.8 Non-Liability for Approval 27_ 7.9 Construction Without Approval 27 7.10 Maintenance and Repairs 28 7.11 Reconsideration 29 7.12 Evidence of Approval 29 7.13 Variances 29 ARTICLE 8 - INSURANCE 29 8.1 Obligation to Insure .29 8.2 Waiver by Owners 30 ARTICLE 9 - DEVELOPMENT STANDARDS 30 9.1 Minimum Setback 30 9.2 Exceptions to Setback Requirement 30 9.3 Landscaping . 31 9.4 Signs 31 9.5 Parking Areas 31 9.6 Storage and Loading Areas 31 9.7 Site Coverage 32 9.8 Building Height 32 ARTICLE 10 - MAINTENANCE OF COMMON AREAS AND FACILITIES 32 10.1 Association's Maintenance Responsibility 32 10.2 Owner's Maintenance Responsibility 33 10.3 Maintenance By Owners Upon Failure of Association to Do So 33 10.4 Association Management Company 33 SD 160075v8 III 10.5 Easements for Association ............................. ..... 33 10.6 Utilities .................................................. 34 ARTICLE 11 -ALLOCATION OF MAINTENANCE COSTS AND PROPERTY TAXES .......................................... . .................. 34 11.1. Allocation of Cost of Maintaining Area IV and Taxes ............... 34 11.2 Computation of Maintenance Costs ........................... 34 1 1 .3 Assessment of Costs ....................................... 34 ARTICLE 12 - MODIFICATION AND AMENDMENT .................... ..... 35 12.1 Procedure ..................................... . ......... 35 12.2 Approval by the City of Carlsbad .............................. 35 12.3 Governmental Regulation ................................... 35 ARTICLE 13 - ENFORCEMENT ........................................ 35 13.1 Default and Remedies ...................................... 35 13.2 Damages ............ .................................... 36 13.3 Equity ..... . ............... ........................ . ____ 36 13.4 Abatement and Lien Rights .......................... , ....... 3£L 13.5 Waiver .................................................. 36 13.6 Costs of Enforcement ...................................... 36 13.7 Nonexclusive Rights of Enforcement .................... ...... 36 13.8 Enforcement by the City of Carlsbad ........................... 37 ARTICLE 14 - CONSTRUCTIVE NOTICE AND ACCEPTANCE ........... ..... 37 ARTICLE 15 -WAIVER ............................................... 37 ARTICLE 16 - RUNS WITH LAND ..... . ..... ............................ 38 ARTICLE 17 - RIGHTS OF MORTGAGEES ............................... 38 ARTICLE 18 - CAPTIONS ............................................. 38 ARTICLE 19 - EFFECT OF INVALIDATION .......................... ..... 38 ARTICLE 20 - COMPLIANCE WITH LAW, INDEMNITY .... .................. 39 EXHIBIT "A" - PROJECT LEGAL DESCRIPTION .......... ................ 40 EXHIBIT "A-1" - AREAS I, II, III, AND IV ............. .......... .......... 41 EXHIBIT "B" - ACREAGE AND VOTES ASSIGNED TO EACH LOT ............ 43 SD 160075v8 FOURTH AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF CARLSBAD RESEARCH CENTER This Fourth Amended and Restated Declaration of Covenants, Conditions and Restrictions of Carlsbad Research Center ("Declaration" or "Fourth Declaration"), is made as of this day of , 2001, by the Owners of Lots within the Subject Property with reference to the following facts: RECITALS A. On or about April 14, 1982, Carlsbad Research Center, a California general partnership ("Carlsbad") executed that certain Declaration of Covenants, Conditions and Restrictions for Carlsbad Research Center, which was recorded April 22, 1982, as Instrument No. 82-114942 of the Official Records of the County Recorder of San Diego County, California, and recorded on May 12, 1982, as — Instrument No. 82-141190 of the Official Records of the County Recorder of San Diego County, California ("the Original Declaration"). B. Article 10 of the Original Declaration ("Article 10") provides that said Declaration or any provision thereof, or any covenant, condition or restriction contained therein, may be modified or amendechas to the whole of the "Subject Property" (as defined in the Original Declaration), or any portion thereof, with the written consent of the Owners (as defined in the Original Declaration) of fifty-one percent (51%) of the Subject Property, based upon the number of square feet owned as compared to the net acreage of the Subject Property. C. On or about April 20, 1987, and in accordance with the provisions of said Article 10, a group (including Carlsbad) comprising the Owners of more than fifty-one percent (51 %) of the Subject Property executed that certain First Amendment to Carlsbad Research Center Declaration of Covenants, Conditions and Restrictions ("First Amendment"). Said First Amendment amended and restated the Original Declaration in its entirety, and the same was recorded December 10, 1987, as Instrument No. 87-682096 of the Official Records of San Diego County, California. D. On or about January 19, 1988, and in accordance with the provisions of said Article 10, a group (including Carlsbad) comprising the owners of more than fifty- one percent (51%) of each of Phases I and II of the Subject Property, based on the number of square feet owned as compared to the net acreage of each of said phases, executed that certain Second Amended and Restated Declaration of Covenants, Conditions and Restrictions of Carlsbad Research, and the same was recorded SD 160075v8 10089 January 19,1988, as Instrument No. 88-024160 of the Official Records of San Diego, California ("Second Amendment"). E On or about March 10, 1988, Upland Industries Corporation, a Nebraska corporation ("Upland"), successor in interest to Carlsbad, and other parties, executed that certain Third Amended and Restated Declaration of Covenants, Conditions and Restrictions of Carlsbad Research Center, which was recorded June 29,1988, as Instrument No. 88-313420, Official Records of the County Recorder of San Diego County, California ("Third Amendment"). The Third Amendment is itself an amended and fully restated version of the Original Declaration which is referenced in, and superseded by, the Third Amendment. F. Article 10 of the Third Amendment ("Restated Article 10") provides that the Third Amendment, or any provisions thereof, or any covenant, condition or restriction contained therein, may be modified or otherwise amended, as to the whole of the Subject Property or any portion thereof, with the written consent of the Owners of fifty-one percent (51 %) of the aggregate area of all Lots within the Subject Property, based on the area of the Lots owned by such consenting Owners as compared to the total area of the Subject Property. ..__ G. On or about May 1, 1995, and in accordance with the provisions of said Restated Article 10, a group (including Upland) comprising the Owners of more than fifty-one (51%) of the aggregate area of all Lots within the Subject Property, based on the area of the Lots owned by such consenting Owners as compared to the total area of the Subject Property, executed that certain First Amendment to Third Amended and Restated Declaration of Covenants, Conditions and Restrictions of Carlsbad Research Center, and the same was recorded June 1,1995, as Instrument No. 1995-0X230848 of the Official Records of San Diego County ("First Amendment to Third Amendment"). (The First Amendment to Third Amendment and the Third Amendment shall be referred to together as the "Third Amendment" unless the context clearly indicates otherwise.) H. By Assignment and Assumption Agreement dated as of September 28, 1995, Upland assigned to Union Pacific Railroad Company, a Utah corporation ("UPRR-Utah"), all of Upland's rights and obligations as declarant under the Restated Declaration. By Quitclaim Deed dated as of September 28,1995, and recorded in the Official Records of the San Diego County Recorder's Office on December 15, 1995, as Document No. 1995-0573901, Upland quitclaimed to UPRR-Utah all of Upland's right, title and interest in all portions of the Subject Property held by Upland. On February 1, 1998, UPRR-Utah was merged into Southern Pacific Transportation Company, a Delaware corporation ("SP"), and SP, the surviving corporation, changed its name to Union Pacific Railroad Company ("UPRR"). I. The development of the Subject Property was planned in five phases, with annexation to the Subject Property to occur as each phase was developed. As of the date of this Declaration, each of the five phases has been annexed to the Subject SD160075v8 2 10090 Property and UPRR, has developed and/or otherwise conveyed all of the Subject Property owned by UPRR except that certain Lot 110 in Tract No. 85-24 ("Lot 110") which is Common Area. J. UPRR and the Owners desire that Owners take responsibility for the management of the Subject Property. Owners have elected to form the Association (defined herein) as a nonprofit mutual benefit corporation for such purpose, including taking title to Lot 110 owned by UPRR. K. The Third Amendment does not provide for the enforcement thereof by the Association and the Owners desire to amend the Third Amendment to provide accordingly. L. The President and Secretary of the Association, as representatives of the Owners, certify that, to the best of their knowledge, the affirmative vote or written consent of Owners of Lots the aggregate area of which is more than fifty-one percent (51%) of the aggregate area of all Lots within the Subject Property has been obtained. M. The Owners now desire to amend and restate the Third Amendment pursuant to Article 10 thereof, as set forth herein. N. It is the desire and intention of the Owners to reaffirm the creation by the Original Declaration of a multi-phased planned development in accordance with section 1351 of the California Civil Code including the establishment of a common interest project on the Subject Property in accordance with said section 1351, and to establish covenants, conditions and restrictions which will constitute a general scheme for the subdivision management, use, occupancy and enjoyment of the Subject Property, all for the purpose of enhancing and protecting the value, desirability and attractiveness of the Subject Property and enhancing the quality of life within the Subject Property. NOW, THEREFORE, the Owners hereby amend and restate the Third Amendment in its entirety as provided hereinafter and declare that all of the Subject Property shall be held and conveyed subject to the following covenants, conditions, restrictions and easements which are hereby declared to be for the benefit of the Subject Property, and the Owners of all or part of the Subject Property, their successors and assigns. These covenants, conditions, restrictions and easements shall run with said interests and shall be binding upon all parties having or acquiring any right or title in the Subject Property or any part thereof, and shall inure to the benefit of each Owner and are imposed upon the Subject Property and every part thereof as a servitude in favor of the Subject Property and each Owner. SD 160075v8 10091 ARTICLE 1 - DEFINITIONS Unless the context otherwise specifies or requires, the terms defined in this Article 1 shall, as used in this Declaration, have the meanings herein set forth: 1.1 Acreage. The term "Acreage" shall mean, as to a particular Lot, the area thereof as listed on Exhibit "B." Acreage shall be conclusively deemed to be those listed on Exhibit "B" despite the fact that such areas are approximations only and may, with building development, become altered or have been altered. 1.2 Allowable Charges. The term "Allowable Charges" shall mean the costs, late charges and interest in the amounts permitted by section 1366 of the California Civil Code or any successor statute which may be recovered by the Association when any Assessment becomes delinquent which, as of the date hereof, permits (i) reasonable costs incurred in collecting delinquent Assessments including reasonable attorneys' fees, (ii) a late charge not exceeding ten percent (10%) of the delinquent Assessments or Ten Dollars ($10.00), whichever is greater, and (iii) interest on all sums imposed in accordance with this Section, including the delinquent Assessment, reasonable costs of collection and late charges, at the then maximum legal..rate chargeable, provided it shall not exceed twelve percent (12%) interest per annum, commencing thirty (30) days after the Assessment becomes due. 1.3 Architect. The term "Architect" shall mean a person holding a certificate to practice architecture in the State of California under authority of Division 3, Chapter 3 of the Business and Professions Cod&of the State of California. 1.4 Architectural Review Committee. The terms "Architectural Review Committee" or the "Committee" shall mean and refer to that committee or committees provided for in the Article hereof entitled "Architectural Review Committee". 1.5 Articles of Incorporation. The term "Articles of Incorporation" shall mean the Articles of Incorporation of the Carlsbad Research Center Owners Association, which have been filed in the Office of the California Secretary of State, as the same may be amended from time to time. 1.6 Assessments. The term "Assessment" or "Assessments" shall mean each of the charges levied by the Board pursuant to the provisions of the Association Management Documents for the purposes indicated below: (a) "Capital Improvement Assessments" levied against each Lot in any calendar year applicable to that year only for the purpose of defraying, in whole or in part, the cost of any installation, construction or replacement of a described capital Improvement upon the Maintenance Areas, including necessary fixtures and personal property related thereto; SD 160075v8 4 10092 ( (b) "Maintenance Area Assessments" levied against each Lot for such Lot's proportionate share of the estimated Maintenance Area Expenses for such area for the forthcoming calendar year; (c) "Regular Assessments" levied against each Lot for such Lot's proportionate share of the estimated Common Expenses for the forthcoming calendar year; (d) "Special Assessments" (evied against all Lots to cover the cost of any action or undertaking on behalf of the Association which is not specifically covered under any other Assessment. In the event the Association undertakes to provide materials or services which benefit a particular Lot, the Owner of such Lot in accepting such materials and services agrees that the cost thereof shall also be a Special Assessment. 1.7 Association. The term "Association" shall mean and refer to Carlsbad Research Center Owners Association, a California Nonprofit Mutual Benefit Corporation, or any successor corporation or other organization established by the Board for the purpose of carrying out the duties of the Association described herein. The Association is an "Association" as defined in California Civil Code section 1351 (a). ( 1.8 Association Management Documents. The term "Association Management Documents" shall mearvand refer to the Articles of Incorporation, Bylaws, this Declaration, Design Guidelines and the Association Rules, and any amendments to any of the foregoing. 1.9 Association Rules. The term "Association Rules" shall mean rules adopted, amended and repealed from time to time by the Board pursuant to the Article hereof entitled "Discipline of Members." 1.10 Beneficiary. The term "Beneficiary" shall mean a mortgagee under a mortgage as well as a beneficiary under a deed of trust. 1.11 Board. The term "Board" shall mean the Board of Directors of the Association. 1.12 Budget. The term "Budget" shall mean an itemized written estimate of the income and Common Expenses of the Association prepared from time to time pursuant to the provisions of the Bylaws. 1.13 Building. The term "Building" shall mean any building constructed on an Owner's Lot within the Subject Property. SD 160075v8 10093 1.14 Bylaws. The term "Bylaws" shall mean and refer to the Association Bylaws as amended from time to time. 1.15 Carlsbad Research Center. The term "Carlsbad Research Center" shall mean the commercial and industrial master planned project comprising the Subject Property. 1.16 City. The term "City" shall mean and refer to the City of Carlsbad, California, a municipal corporation of the State of California. 1.17 Common Area. The term "Common Area" shall mean and refer to Area IV private common areas (defined in Article 5) and any portion of the Subject Property owned by the Association. 1.18 Common Expenses. The term "Common Expenses" shall mean and refer to the actual and estimated costs or amounts established by the Board for: (a) Management and administration of the Association, including, but not limited to, compensation paid by the Association to managers^ accountants, attorneys and employees; (b) Premiums on all insurance and fidelity bonds maintained by the Association pursuant to the Article entitled "Insurance" in this Declaration; (c) Taxes paid by the Association; (d) Expenses incurred by committees established by the Board; (e) The cost to construct, maintain and repair the Maintenance Areas and any necessary Improvements thereto; and (f) Other expenses incurred by the Association for costs of any items designated by the Association Management Documents, or in furtherance of the purposes of the Association or in order to discharge of any duties or powers of the Association. 1.19 Condominium Units. The term "Condominium Units" shall mean the individual interests in a condominium project as defined in Civil Code section 1351(f). The single larger legal parcel upon which a condominium project containing condominium units is located shall be deemed a "Lot" for purposes of this Declaration. 1.20 Declaration or Fourth Declaration. The term "Declaration" or "Fourth Declaration" shall mean this Fourth Amended Restated Declaration of Covenants, SD 160075v8 6 10094 Conditions and Restrictions of Carlsbad Research Center, as it may from time to time be amended or supplemented. 1.21 Design Guidelines. The term "Design Guidelines" shall mean and refer to the Design Guidelines approved by the Board, as amended from time to time. Such Design Guidelines shall not conflict with the Carlsbad Research Center Specific Plan and City or other governmental health, safety, environmental, zoning and land-use ordinances or regulations ("Governmental Requirements"). In the event of a conflict, the Governmental Requirements shall be applicable unless a waiver or modification is obtained from the appropriate governmental entity. The Design Guidelines may include guidelines on the following: (a) Standards for the construction, maintenance, management, operation, repair and replacement of the Improvements located within a Lot as well as the Maintenance Areas maintained by the Association pursuant to the provisions of this Declaration; and (b) Standards for the landscaping, maintenance, operation, utilities, trash pickup and disposal, gardening and other services which generally benefit the Maintenance Areas. 1.22 Development. The term "Development" shall mean and refer to the Subject Property. 1.23 Exhibit. The term "Exhibit" shall mean and refer to any document so designated herein and attached hereto and each of such Exhibits is by this reference incorporated in this Declaration. 1.24 Improvement. The term "Improvement" or "Improvements" shall include without limitation Buildings, outbuildings, roads, driveways, parking areas, fences, screening walls and barriers, retaining walls, stairs, decks, water lines, sewers, water reclamation facilities, pump stations, force mains, storm drains, reservoirs (and related facilities), telephone and all other communication facilities, including satellites, signal arrays, or antennae, electrical and gas distribution facilities, hedges, windbreaks, plantings, planted trees and shrubs, poles, signs, loading areas and all other structures, construction, installations and landscaping of every type and kind, whether above or below the land surface. 1.25 Lot. The term "Lot" shall mean a fractional part of the Subject Property as heretofore divided and redivided by a final or parcel maps, or other lawful instrument, recorded from time to time in the office of the Recorder of San Diego County, California. The Lots are listed in Exhibit "B," attached hereto. Anything to the c'ontrary notwithstanding, the term "Lot" shall not mean or otherwise include a Condominium Unit, an individual lot within a planned industrial development or planned unit development constructed on any Lot, or Lot 110. SD 160075v8 7 10095 1.26 Maintenance Area Expenses. The term "Maintenance Area Expenses" shall mean the actual and estimated costs and expenses incurred by the Association for the maintenance of the Maintenance Areas and may include, without limitation, charges to cover any of the following as designated herein or as determined by the Board from time to time: (a) Trash pickup and disposal, gardening, landscaping, water, utilities, tree trimming or the services provided in connection with such Maintenance Areas; (b) Insurance and bonds maintained specifically for the Maintenance Areas; (c) Reasonable reserves for Improvements within the Maintenance Areas; and (d) Any and all other expenses .incurred by the Association pursuant to this Declaration for any reason whatsoever in connection with any of the foregoing Maintenance Area Expenses as to the — Maintenance Areas. 1.27 Maintenance Areas. The term "Maintenance Areas" shall mean and refer to those portions of the Subject Property which are maintained by the Association, for natural open space, landscape, parking, mini-parks and the like, as shown on maps kept with the Association records or as may be recorded from time to time by the Board. Each Owner shall be responsible for payment of the Maintenance Area Expenses allocated to that Owner's Lot as provided in Article 11 herein titled "Allocation of Maintenance Costs And Property Taxes". 1.28 Master Association Property. The term "Master Association Property" shall mean and refer to real property and the Improvements thereon, if any, that may be owned or acquired by the Association for the common use and enjoyment of the Owners and authorized Occupants of the Lots. 1.29 Member. The term "Member" shall mean and refer to every person or entity who is a member of the Association as provided for in the Articles of Incorporation and Bylaws. 1.30 Mortgage. The term "Mortgage" shall mean a Deed of Trust as well as a mortgage. 1.31 Mortgagee. The term "Mortgagee" shall mean a beneficiary under, or holder of, a Deed of Trust as well as a mortgagee under a mortgage. SD 160075V8 8 10036 1.32 Occupant. The term "Occupant" shall mean a lessee or licensee of an Owner, or any other person or entity (other than an Owner) in lawful possession of a Lot, or portion thereof, with the permission of the Owner of such Lot. 1.33 Official Records. The term "Official Records" shall mean the Official Records in the Office of the County Recorder of San Diego County. 1.34 Owner. The term "Owner" shall mean: any natural person, firm, corporation, partnership, trust or other entity which owns a fee simple interest in any Lot, as shown on the most recent deed for the Lot recorded in the Office of the San Diego County Recorder, including Association, and any contract sellers under recorded contracts of sale. "Owner" shall not include any persons or entities who hold an interest in a Lot merely as security for performance of an obligation. For purposes of exercising membership rights and incurring membership obligations when an Owner is a corporation, any director, officer, employee or agent designated by corporate resolution may exercise the membership rights attributable to the corporation. When an Owner is a trust, the trustee may exercise the membership rights attributable to the trust unless otherwise designated in writing by the trustee. 1.35 Planned Development. The term "Planned Development" as classified under section 1351(k) of the California Civil Code shall mean the Subject Property which has been divided into separately owned private Lots and Lots to be owned by the Association. 1.36 Property Line. The termJ'Property Line" shall mean the perimeter boundary of any Lot as shown on the current legal subdivision, final or parcel map thereof. 1.37 Record-Recorded-Recordation. The terms "Record", "Recorded," or "Recordation" shall mean, with respect to any document, the recordation of said document in the Office of the County Recorder of San Diego County, California. 1.38 Sign. The term "Sign" shall mean any structure, device or contrivance, electric or nonelectric, upon or within which any poster, bill, bulletin, printing, lettering painting, device, logo or other advertising of any kind whatsoever is used, placed, posted, tacked, nailed, pasted, or otherwise fastened or affixed. 1.39 Specific Plan. The term "Specific Plan" shall mean the Carlsbad Research Center Specific Plan SP-180 and 180(A) approved by the City of Carlsbad as the same may from time to time be amended. 1.40 Street or Streets. The term "Street" or "Streets" shall mean any dedicated public street, highway, road, or thoroughfare within or adjacent to the Subject Property and shown on any recorded-final or parcel map, record of survey, or separate grant SD 160075v8 1Q097 whether designated thereon as a street, boulevard, place, drive, road, court, terrace, way, lane, circle or otherwise. f 1.41 Subject Property. The term "Subject Property" shall mean all of the real property subject to this Declaration as described in Exhibit "A." 1.42 Visible From Neighboring Property. The term "Visible From Neighboring Property" shall mean, with respect to any given Improvement on a Lot, that such Improvement is or would be visible to a person six (6) feet tall, standing on any useable area of any adjacent Lot at an elevation no greater than the elevation of the base of the useable area of any adjacent Lot. ARTICLE 2 - THE ASSOCIATION 2.1 Organization and Membership. Every Owner shall automatically upon becoming the record Owner of a Lot be a Member of the Association and shall remain a Member until such time as the Owner ceases to be the Owner for any reason, at which time its membership in the Association shall automatically cease. Such membership- shall be appurtenant to and pass with the ownership of any Lot. 2.2 General Duties and Powers. Subject to the limitations and restrictions enumerated in the Association Management Documents and those imposed by applicable law, the Association, through the Board, shall have the duty and obligation to manage and maintain the Subject Property pursuant to the provisions of the Association Management Documents, and in the performance of such duties and obligations the Association shall have all of the powers, rights, and authorities granted by applicable law to a nonprofit, mutual benefit corporation established as an association to manage a common interest development and as otherwise provided in this Declaration. 2.3 Power of Attorney. In addition to any other rights, duties, obligations and powers granted to the Association herein and by applicable law, and not in limitation of any such rights, duties, obligations and powers, each Owner appoints the Association as attorney-in-fact for the purpose of handling any losses or proceeds from condemnation, destruction or liquidation of all or any part of the Master Association Property. All such proceeds shall be retained in the general funds of the Association. 2.4 Membership. The rights, voting powers, and responsibilities of membership in the Association are as set forth in the Bylaws. 2.5 Voting Rights. Each Lot shall be assigned a number of votes based on each Lot's Acreage as compared to the total Acreage of all Lots in accordance with Exhibit "B." An Owner's right to vote shall vest immediately upon the date assessments commence upon such Owner's Lot, as provided in this Declaration. All voting rights SO 160075v8 10 i '£' A. F . CARLSBAD RESEARCH CENTER Exhibit B ff*. „* :v\^:« •-„* 7 HjJ '~e-'«^ '^^^ ^ ^rv ^ ^L^ •£.- -*•*.>*• '-. «ip V> ^ r '•* " "^ -• ' ^j^ V-C»V t'^-'«. ^Tjf vl - -^,-i'r?~_ - ; ^- s / , -j-" \ ,'_'; **i ^ - *-^? f ij, —'i\=.' 1 !•'<•^ 'rF^! *• <"*< ' ^ ^"*"t| V f '- "<-'<^:. %r&,$ i - V >. ~ Lot# 1A ,1B -2 - 3 ^ '4 _ - '5 ^ 6 7 8 • - g- - 10B 10C 11 .12 ^13 14 -15 ,16 - 17 18 19 - 20 21** 22** 23** 24- Phase I Total Per 4th Decl. PHASE 1 Net Sellable Acreage J.050 5762 13.675 met in #2 - 5053 8.214 4.735 4586 4325 - 4.775- 2681 3.152 7252 7.482 -4112 8.951 2.712 6.377 1 919 2.416 1.999 1551 2.499 0.000 3.158 1.775 f 10.211 No. of votes 1,050 5,762^ 4,120 n/a 5,053 8,214 -4,735 4,586 4,325 4,775 2,681 3,152 7,252 7,482 4,112 8,951 2,712 6,377 1,919 - 2,416 1,999 1,551 2,499 n/a 3,158 1,775 110,211 Vote % 0.262% 1.438% ^^413% n/a 1.261% 2.050% 1.182% 1 145% 1 080% 1.192% 0.669% 0 787% 1 810% 1.868% 1.026% 2 234% 0 677% 1.592% 0 479% 0 603% 0 499% 0 387% 0 624% n/a 0.788% 0 443% 27.510% *_•' *Lot 22 was split between lots 21 and 23 " IfJ"? Page /^of 6*8/15/01 4:43 PM CARLSBAD RESEARCH CENTER Exhibit B - 3 -?«-5%^-sr-i rrf ^ i.,„ A ,-e-% ^ 1 •• t -. - ' E, 1 jf < , ,f *~ r^ ^l "- 3*v ^7 -* t ^ -t ~l^ ^\- ^^ "^"^i^^ *> ^ 5* p^ ^.-_ ?£^&¥.' - > -" ^ * 1 3^, -tr - -**v ^ -" i-^••"•J,^-""- -'"^je,^, ^T"- . _ -; ,V>*--«C. -"" ", * ,«, ---£•*-• - -'^ii1 'W,' *." '>-c * •S^?"^ •/ - Lot *f 25 '26 , .27 "28 29 - 30 -31 32 33 - 34 -35 36 37 ^38 39* 40* - 41* - 42* 43 Phase II Total Per 4th Decl. PHASE 11 Net Sellable Acreage 1.945 2049 1.971 1.624 1.528 2.106 2.852 1.876 2.198 2862 - 2.821 1.901 1.450 3693 8372 2.588 6.738 - 2877 4012 55463 No. of Votes 1,945 2,049 1,971 1,624 1,528 2,106 2,852 1,876 2,198 2,862 2,821 1,901 1,450 3,693 8,372 2,588 6,738 2,877 4,012 55,463 Vote % 0.485% 0.511% 0.492% 0.405% 0.381% 0 526% 0.712% 0.468% 0.549% 0.714% 0.704% 0.475% 0.362% 0.922% 2.090% 0 646% 1.682% 0718% 1.001% 13.844% *Lots 39-42 had significant lot line adjustments. Page 2-of 8/15/01 2:22 PM CARLSBAD RESEARCH CENTER Exhibit B , r4'' " „ Lot# 44 45 46 47 J48 49 Phase III Total " Per 4th Decl. PHASE III Net Sellable Acreage 12.718 12.599 2.883 3.489 3.178 3.162 38029 No. of Votes 12,718 12,599 2,883 3,489 3,178 3,162 38,029 Vote % 3.175% 3 145% 0 720% 0871% 0 793% 0.789% 9 492% Nr Page3 of 6 8/15/01 2:10 PM CARLSBAD RESEARCH CENTER Exhibit B i i^v^te"!^ r , >* -1 -^/--'I^T^fq-*?-^ *-£*&&&?'*, 'te:*iptv>VTa* %$*'+.' *-~^ *- * ^l«ir5" "."-^ 1 J^-^ •'EB,^«. ^ ff- ', ^t^SLT,":^ -" ^^fZif ^"- ^&*"** "^- *- ^ ^ * a Lot* ,50 ,51 .52 53 .^54 55 56 rsr 58 59 - 60 .61 62 63 - 64 /65 66 67 68* '69* 70 -~71 ^72 73 - 74 - 75 Phase IV Total Per 4th Decl. PHASE IV ^Nef Sellable Acreage 9000 5.805 2.145 1.501 2.120 3.395 4.656 3.257 1.775 2.824 2.242 3076 4.112 3096 2322 6655 3589 1.343 1.753 4.724 3.816 3.746 3.765 5.555 2.836 3073 92.181 No. of Votes 9,000 5,805 -2,145 1,501 2,120 3,395 4,656 3,257 1,775 2,824 2,242 3,076 4,112 3,096 2,322 6,655 3,589 1,343 1,753 - 4,724 3,816 3,746 3,765 5,555 2,836 3,073 92,181 Vote % 2 246% 1 .449% 0 535% 0 375% 0 529% 0 847% 1 162% 0.813% 0 443% 0 705% 0 560% 0 768% 1.026% 0 773% 0.580% 1.661% 0.896% 0.335% 0 438% 1 179% 0 953% 0.935% 0 940% 1 387% 0.708% 0.767% 23 009% * Contain Area III in original calculation Page^f of 8/15/01 2:14 PM CARLSBAD RESEARCH CENTER Exhibit B Lot# 76~ 77 78 79* 80* . 81* Par A1 ** ParA2*^ Par A3 *t ParA4** 92 - 93 J 94 95 96 97 , 98 99 100* 101* 102* 103*^ -104* 105* 106* - 107* 108* _ 109 - Phase V Total Per 4th Decl. PHASE V Net Sellable Acreage 4694 6359 4.966 3590 2.590 4130 17610 5140 5070 3.580 2528 1730 1404 1772 2699 2.137 1.835 1 780 3607 -1462 4340 1.412 ~ 1.154 '1.508 4070 4.680 5020 3876 104.743 No. of Votes 4,694 6,359 4,966 3,590 2,590 4,130 17,610 5,140 5,070 3,580 2,528 1,730 1,404 1,772 2,699 2,137 1,835 1,780 3,607 1,462 4,340 1,412 1,154 1,508 4,070 4,680 5.020 3,876 104,743 Vote % 1 172% 1 587% 1 240% 0 896% 0 646% 1 031% 4 396% 1 283% 1.266% 0 894% 0631% 0.432% l_0 350% 0.442% 0 674% 0 533% 0 458% 0 444% 0.900% 0.365% 1.083% 0.352% 0 288% 0.376% 1 016% 1.168% 1.253% 0.967% 26 145% * Contain Area III in original calculation " ** Originally a part of Parcel A, comprising tc 33.302 net acres per 3rd Dec; relative changi comparisons for A1-A4 are approximate "110 ***0 n/a *** Emerald Lake, not included in voting or assessments. PageSbf 8/15/01 2:16 PM CARLSBAD RESEARCH CENTER Exhibit B , Phase Phase 1 Phase II Phase III Phase IV Phase V Totals Lot#s 1-24 25-43 26-49 50-75 76-109 Per 4th Oecl. Net Sellable Acreage 110.211 55.463 38029 92.181 104.743 400.627 Vote % 27.510% 13844% 9 492% 23 009% 26.145% 100.000% *v - Page (a of G 8/15/01 2:18PM 10098 shall be subject to the restrictions and limitations provided herein and in the Bylaws and Association Rules. 2.6 Common Interest Development. Any Lot containing an approved condominium project, planned industrial development or planned unit development shall be assigned votes in the same manner as the other Lots. The votes assigned to a common interest development shall be cast by the association governing the development or any authorized agent of the association. 2.7 One Class of Membership. The Association shall have one (1) class of members, which shall be voting memberships. 2.8 Approval of All Members. Unless otherwise specifically provided in this Declaration, any provision of this Declaration which requires the vote or written consent of the voting power of the Association shall be deemed satisfied by the following: (a) The required percentage of votes needed pursuant to the applicable section of this Declaration of all of the votes which are entitled to be cast by the entire membership of the Association. — Said votes shall be cast at a meeting duly called and noticed pursuant to the provisions of the Bylaws dealing with annual or special meetings of the Members and may be cast in person or by proxy; or (b) Written consents signed by the required percentage of all of the votes which are entitled to be cast by the entire membership of the Association. Said vote by written consent shall be solicited pursuant to the procedures provided in the Bylaws. ARTICLE 3 - SUBJECT PROPERTY 3.1 General Declaration. The Owners hereby declare that all of the Subject Property located in the City of Carlsbad, County of San Diego, State of California, more particularly described in Exhibit "A," is, and shall be, conveyed, hypothecated, encumbered, leased, occupied, built upon or otherwise used, improved or transferred in whole or in part, subject to this Declaration. All of the covenants, conditions and restrictions set forth herein are declared and agreed to be in furtherance of the Specific Plan for the subdivision, improvement and sale of the Subject Property and are established for the purpose of enhancing and protecting the value, desirability and attractiveness of the Subject Property and every part thereof. All of said covenants, conditions and restrictions shall run with all of the Subject Property for all purposes and shall be binding upon and inure to the benefit of the Association and all Owners, Occupants, and their successors in interest as set forth in this Declaration. SD 160075v8 11 10099 ARTICLE 4 - ASSESSMENTS 4.1 Agreement to Pay. Subject to any limitations contained in the Association Management Documents, the Association shall levy Assessments sufficient to perform its obligations under the Association Management Documents. Each Owner is deemed to covenant and agree to pay to the Association Assessments to be fixed, established and collected from time to time as provided in this Declaration. 4.2 Collection and Disbursement. All funds of the Association may be commingled so that the Association may qualify for higher yielding accounts at banking or savings and loan institutions as long as the accounting records of the Association reflect deposits and disbursements in a manner that will insure that the funds collected will be used only for the purposes for which such funds were collected. 4.3 Maximum Assessments. (a) The Board will not'impose, amend, modify or abate any Assessment for any act or undertaking of the Association except upon the affirmative vote of a majority of the Board. (b) In the event the Board shall determine that the estimate of total charges for the current year is, or will become inadequate to meet all Common Expenses or Maintenance Area Expenses for any reason, it shall then immediately determine the approximate amount of such inadequacy, issue a supplemental estimate of such Common Expenses or Maintenance Area Expense, and to the extent permitted in this Section 4.3, determine the revised amount of the Regular Assessment or Maintenance Area Assessment and the installments thereof, if applicable, allocable to each Lot, and the date or dates when due. In the event the amount budgeted to meet Common Expenses or Maintenance Area Expenses for the then current year proves to be excessive in light of the actual Common Expenses or Maintenance Area Expenses, the Board in its discretion may either reduce the amount of the Regular Assessment or Maintenance Area Assessment, apply excess amounts to succeeding years, or may abate collection thereof as it deems appropriate. 4.4 Assessment Allocation. Regular Assessments, Capital Improvement Assessments, Maintenance Area Assessments and Special Assessments levied against all Lots for an act or undertaking of the Association shall be apportioned to each Lot pursuant to the terms of Section 11.1 of this Declaration (Allocation of Maintenance Costs and Property Taxes). SD 160075v8 12 10100 4.5 Certificate of Payment. The Association shall, upon demand, furnish to any Owner liable for Assessments a certificate in writing signed by an authorized agent of the Association or by two Members of the Board setting forth whether the Assessments on such Owner's Lot have been paid as of the date specified in the certificate. A reasonable charge may be collected by the Board for the issuance of these certificates. Such certificates shall be conclusive evidence of payment of any Assessment therein stated to have been paid in the absence of fraud or intentional misconduct. 4.6 Exempt Property. All properties dedicated to and accepted by, or otherwise owned or acquired by the Association shall be exempt from the Assessments created herein. 4.7 No Offsets. All Assessments shall be payable in the amount specified by the Assessment and no offsets against such amount shall be permitted for any reason. 4.8 Delinquency. Any Assessment provided for in this Declaration which is not paid shall be delinquent thirty (30) days after such Assessment was due, and Allowable Charges may be recovered if an Assessment becomes delinquent. Within — ten (10) days of the delivery of written request by an Owner, the Association shall provide the Owner with a true statement in writing as to the amount of any unpaid Assessments and information related to Allowable Charges which as of the date of the statement are or may be made a lien upon such Owner's Lot. The Association may at its option, and without waiving the right to judicially foreclose its lien against a Lot, pursue any available remedies, including, without limitation, bringing an action at law against the Owner personally obligated to pay the same, and/or upon compliance with the notice provisions set forth in Section 4.10 entitled "Personal Obligation; Lien" of this Article, to foreclose the lien against such Owner's Lot under the power of sale granted herein. Each Owner vests in the Association, or its assigns, the right and power to bring all actions at law or any lien foreclosure against such Owner or other Owners for the collection of such delinquent Assessments. Anything to the contrary' notwithstanding, nothing herein shall be deemed to defeat or render invalid the lien of any mortgage as more fully provided in Article 17 herein. 4.9 Personal Obligation: Lien. An Assessment and any Allowable Charges shall be a debt of the Owner of the Lot at the time the Assessment or Allowable Charges are levied. The amount of the Assessment, plus any Allowable Charges, shall be a lien on the affected Owner's Lot. The Notice of Delinquent Assessment shall be a lien on the Owner's Lot. The Notice of Delinquent Assessment, recorded in the Official Records, shall state: (i) the amount of the Assessment and Allowable Charges; (ii) a legal description of the Owner's Lot against which the Assessment and Allowable Charges are levied; (iii) the name of the record Owner of the Lot against which the lien is imposed, and (iv) in order for the lien to be enforced by nonjudicial foreclosure as hereinafter provided, the name and address of the trustee authorized by the Association to enforce the lien by sale. The Notice of Delinquent Assessment shall be SD 160075V8 13 10101 signed by the officers authorized for such purpose by resolution of the Board or by the president of the Association. Upon payment of the sums specified in the Notice of Delinquent Assessment, the Association shall cause to be recorded a further notice stating the satisfaction and release of the lien thereof. 4.10 Foreclosure Sale. The lien created pursuant to this Article may be enforced in any manner permitted by law, including sale by the court, sale by the trustee designated in the Notice of Delinquent Assessment, or sale by a trustee substituted pursuant to section 2934a of the California Civil Code. Any sale by a trustee provided for above is to be conducted in accordance with the provisions of section 2924 et seq. and section 1367 of the California Civil Code applicable to the exercise of powers of sale in Mortgages and deeds of trust. Upon the affirmative vote of a majority of the voting power of the Association, the Association, through its duly authorized agents, shall have the power to bid on the Lot, using Association funds, or funds borrowed for such purpose, at the sale, and to acquire and hold, lease, mortgage and convey the same. Nothing in this Section prohibits actions against any Owner to recover sums for which a lien is created pursuant to this Article or prohibits the Association from taking a deed in lieu of foreclosure. 4.11 Priority of Assessment Lien. The Assessment lien referred to in Section 4.10 shall be superior to all other liens, except (i) all taxes, bonds and governmental assessments which, by law, would be superior thereto, and (ii) the lien or charge of any bona fide Mortgage of record given in good faith for value. Notwithstanding any other provision to the contrary, the following provisions shall govern the priority and obligation for payment of the Assessment lien: 4.11.1 Only the judicial or nonjudicial foreclosure of the Mortgage shall operate to transfer title free of the Assessment lien or obligation for any Assessment lien, and then only as to payments which became due prior to the date of sale, and excluding those Assessment liens recorded prior to the recording of the Mortgage. 4.11.2 Neither the transfer of a Lot pursuant to a foreclosure of any Mortgage, nor an election by the Association to proceed against any new Owner for payment, shall serve to cancel the personal obligation of the prior Owner for payment of the delinquent Assessments and Allowable Charges which accrued during such Owner's period of ownership. The personal obligation of any Owner for payment of delinquent Assessments and Allowable Charges may only be satisfied, and therefore discharged, by payment of the entire amount of the delinquent Assessments and Allowable Charges accrued during such Owner's period of ownership, whether or not such Owner remains in possession of his or her Lot. SD160075V8 14 10102 4.11.3 No sale or transfer of any Lot shall relieve such Lot or its new Owner from liability fo'r any future Assessments which accrue during such Owner's period of ownership. ARTICLE 5 - REGULATION OF OPERATIONS AND USES 5.1 Permitted Uses. The Subject Property has been developed in five phases. The land in each phase is divided into Areas I, II, III and IV. Areas I and II are described on Exhibit A-1. Areas III and IV are described on maps kept with the Association records or as may be recorded from time to time by the Board. Each such area has specific permitted uses, as more fully set forth below. Such approved uses within Areas I and II shall be performed or carried out entirely within a building that is so designed and constructed that the enclosed operations and uses do not cause or produce a nuisance to other Lots such as, but not limited to, vibration, sound, electro- mechanical disturbances, electro-magnetic disturbances, radiation, air or water pollution, dust, or emission of odorous, toxic or nontoxic matter (including steam), nor create a potential for explosion or other hazard. Certain activities which cannot be carried on within a building may be permitted, provided the Board specifically consents— to such activity in writing and further provided such activity is reasonably screened so as not to be visible from neighboring property and streets. All lighting is to be shielded so as to minimize visibility from neighboring property. 5.2 Uses Permitted in Area I. Area I is designated for certain light and medium industrial uses, research and~development uses, industrial support and service uses, and business and professional office uses. The following uses are permitted within Area I: 5.2.1 Uses primarily engaged in research activities, including research laboratories, developmental laboratories, and compatible light manufacturing such as, but not limited to, the following: 5.2.1.1 Biochemical; 5.2.1.2 Chemical; 5.2.1.3 Electronics; 5.2.1.4 Film and photography; 5.2.1.5 Medical and dental; 5.2.1.6 Metallurgy; 5.2.1.7 Pharmaceutical; SD160075v8 15 10103 5.2.1.8 X-ray. 5.2.2 Uses primarily engaged in manufacture, research assembly, testing and repair of components, devices, equipment and systems, and parts and components, involving the following items: 5.2.2.1 Coils, tubes, semi-conductors; 5.2.2.2 Communication, navigation, guidance and control equipment; 5.2.2.3 Data processing equipment, including computer software; 5.2.2.4 Glass edging and silvering equipment; 5.2.2.5 Graphics and art equipment; 5.2.2.6 Metering equipment; 5.2.2.7 Radio and television equipment; 5.2.2.8 Photographic equipment; 5.2.2.9 Radar, infrared, and ultraviolet equipment; 5.2.2.10 Optical devices and equipment; 5.2.2.11 Filling and labeling machinery. 5.2.3 Uses primarily engaged in manufacturing, processing, and/or assembly of the following or similar products: 5.2.3.1 Food products; 5.2.3.2 Apparel and finish products from textile products; 5.2.3.3 Lumber and wood products; 5.2.3.4 Furniture and fixture products; 5.2.3.5 Chemical and allied products; 5.2.3.6 Plastic and rubber products; SD160075v8 16 10104 5.2.3.7 Stone, clay, and glass products; 5.2.3.8 Fabricated metal products; 5.2.3.9 Professional, scientific, controlling, photographic, and optical products or equipment. 5.2.4 Uses engaged in service industries or those industries providing service to, as opposed to the manufacture of, a specific product, such as the repair and maintenance of appliances or component parts, tooling, printers, testing shops, small machine shops, and shops engaged in the repair, maintenance and servicing of such items, but excluding automobile and truck repair and equipment rental yards. 5.2.5 Uses involving industries engaged in the distribution and/or storage or warehousing of products relating to the permitted uses in Area I. 5.2.6 Uses involving construction industry businesses such as general—- contractors, electrical contractors, plumbing contractors, and their accessory and incidental offices. 5.2.7 Uses engaged in blueprinting, photostatting, photo-engraving, printing, publishing, and bookbinding. 5.2.8 Uses primarily engaged in administrative and professional offices, but limited to: (i) offices which, are associated with any permitted business use, or (ii) offices which do not attract nor are primarily dependent upon business customers visiting the office. Permitted offices include, but are not limited to, corporate offices, regional offices, general offices, and such professional offices as accountants, attorneys, engineers, architects, and planners. Prohibited offices include, but are not limited to, banks and financial institutions, medical and dental offices, employment agencies, real estate agencies, and travel agencies. 5.2.9 Accessory uses and structures when related and incidental to a permitted use such as, but not limited to, food preparation, food service, eating facilities, and auditorium to serve employees. 5.2.10 Accessory uses and structures when related and incidental to a permitted use such as, but not limited to, food preparation, food service, and eating facilities. SD160075v8 17 10105 5.2.11 Restaurants, subject to the City's review and approval of a conditional use permit. 5.3 Uses Permitted In Area II. Area II is designated for community and regional service, commercial, travel service, industrial support, and business and professional office uses. Commercial uses within Area II are intended to service the needs of the employees and businesses within the Carlsbad Research Center and are not intended to draw traffic from surrounding areas. The following uses shall be allowed in Area II: 5.3.1 Retail commercial business oriented to the needs of people employed within Carlsbad Research Center; 5.3.2 Commercial service businesses oriented to the needs of the businesses and their employees located within Carlsbad Research Center; 5.3.3 Personal service businesses; 5.3.4 Financial service businesses; 5.3.5 Blueprinting, photostatting, photo-engraving, printing, publishing, and bookkeeping; 5.3.6 Administrative professional, and business offices; 5.3.7 Restaurants; 5.3.8 Health or athletic club facilities; 5.3.9 Service stations; 5.3.10 Hotels and motels; 5.3.11 Theaters. 5.4 Uses Permitted in Area III. Area III is designated for natural open space. No construction shall be allowed within Area 111, and activities which are destructive or detrimental to the natural terrain, plant or animal life within Area III are prohibited. 5.5 Uses Permitted in Area IV. Area IV is designated for private common areas, including mini-parks for the use of the Owners' employees and business invitees. Area IV shall be maintained by the Association as provided by Article 10 hereof and shall provide persons coming onto the Subject Property with attractive landscaped settings and, within the miniparks, passive rest and picnic locations. SD 160075v8 18 10106 5.6 Prohibited Uses. The following operations and uses shall not be permitted in the Carlsbad Research Center: 5.6.1 Residential use of any type; 5.6.2 Trailer courts or recreation vehicle campgrounds; 5.6.3 Junk yards or recycling facilities; 5.6.4 Drilling for and removing oil, gas or other hydrocarbon subs substances 5.6.5 Refining of petroleum or of its products; 5.6.6 Commercial petroleum storage yards; 5.6.7 Commercial excavation of building or construction materials; provided, that this prohibition shall not be construed to prohibit any excavation necessary in the course of approved — construction pursuant to Article 7; 5.6.8 Distillation of bones; 5._6.9 Dumping, disposal, incineration or reduction of garbage, sewage, offal,~dead animals or other refuse; 5.6.10 Fat rendering; 5.6.11 Stockyard or slaughter of animal; 5.6.12 Smelting of iron, tin, zinc or any other ore or minerals; 5.6.13 Cemeteries; 5.6.14 Jail or honor farms; 5.6.15 Labor or migrant worker camps; 5.6.16 Truck terminals. 5.7 Nuisances. No nuisance shall be permitted to exist or operate upon any Lot so as to be offensive or detrimental to any adjacent Lot or its occupants. A "nuisance" shall include, but not be limited to, any of the following conditions: SD 160075v8 19 10107 5.7.1 Any use, excluding reasonable construction activity, on the Lot which emits dust, sweepings, dirt or cinders into the atmosphere, or discharges liquid, solid wastes or other matter into any water reclamation area or other waterway which, in the opinion of the Board may adversely affect the health, safety, comfort of, or intended use of their property by persons within the area; 5.7.2 The escape or discharge of any fumes, odors, gases, vapors, steam, acids or other substance into the atmosphere which discharge, in the opinion of the Board, may be detrimental to the health, safety or welfare of any person or may interfere with the comfort of persons within the area or which may be harmful to the subject Property or its vegetation; 5.7.3 The radiation or discharge of intense glare or heat, or atomic, electromagnetic, mjcrowave, ultrasonic, laser or other radiation. Any operation producing intense glare or heat or such other radiation shall be performed only within an enclosed or screened area and then only in such manner that the glare, heat or radiation— emitted will not be discernible from any point exterior to the site or Lot upon which the operation is conducted; 5.7.4 Any vibration, noise, sound or disturbance which, in the opinion of the Board is objectionable due to intermittence, beat, frequency, strength, shrillness or volume. 5.8 Condition of Property. The Owner or Occupant of any Lot shall at all times keep it (other than the portion thereof within Area IV) and the Buildings, Improvements and appurtenances thereon in a safe, clean and sanitary condition and comply, at its own expense, in all respects with all applicable governmental, health, fire and safety ordinances, regulations, requirements and directives and the Owner or Occupant shall at regular and frequent intervals remove at its own expense any rubbish of any character whatsoever which may accumulate upon such Lot. 5.9 Maintenance and Repairs. Each Lot (other than the portion thereof within Area IV) and all Improvements thereon, including all concrete terrace drains, shall at all times be constructed, kept and maintained by the Owner or Occupant of the Lot in first class condition, repair and appearance similar to the Common Areas maintained by the Association and other owners of first class industrial and commercial parks of similar class and construction in San Diego County. All repairs, alterations, replacements or additions to Improvements shall be substantially equal to the original work in class and quality. The necessity and adequacy of such repairs shall be measured by the same standard as for the original construction and maintenance, and shall be in compliance with the Design Guidelines which may be established by the Board from time to time. 1 SD 160075v8 20 10 M) 8 5.10 Refuse Collection Areas. All refuse collection areas shall be completely screened and surrounded, except for access gates, by a constructed wall of concrete or masonry material not less than six (6) feet in height. All such areas shall have concrete floors and shall be sufficient in size to contain all refuse generated on each Lot, but in no event smaller than six (6) feet by eight (8) feet. No refuse collection areas shall be permitted between a street and the front of a Building unless no other location is reasonably available due to the configuration of the Lot and the location of adjacent streets. 5.11 Public Utilities. Association reserves the sole right to grant consents for the construction and operation of public utilities including, but not limited to, street railways, interurban or rapid transit, freight railway, poles or lines for electricity, telephone or telegraph, above or below ground conduits, and gas pipes in and upon any and all public streets now existing or hereafter established upon which any portion of the Subject Property may now or hereafter front or abut. Association reserves the exclusive right to grant consents and to petition the proper authorities for any and all street improvement, including but not limited to grading, seeding, tree planting, sidewalks, paving, sewer and water installation, whether it be on the surface or subsurface and no Owner or Occupant shall enter into any contract or agreement with-— any governmental agency or body or public utility with reference to the installation of any utility service or street improvement without Association's prior written consent. Notwithstanding the provisions of Section 7.2, Association reserves the exclusive right to approve above ground utility lines across the Subject Property or any portion thereof on a temporary,basis for the purpose of construction, and such lines shall be permitted when required by a government agency. 5.12 Utility Lines and Antennas. No sewer, drainage or utility lines or wires, antennae, cable or other devices for the communication or transmission of electric current, power, or signals including telephone, television, cellular, digital, microwave, radio or other signals, shall be constructed, placed or maintained anywhere in or upon any portion of the Subject Property other than within Buildings or structures unless the same shall be contained in conduits or cables constructed, placed or maintained underground or concealed in or under buildings or other structures. No antenna for the transmission or reception of telephone, television, cellular, digital, microwave, radio or other signals shall be placed on any Building or other Improvement within the Subject Property unless (i) such devices shall be so located that it cannot be seen from any point at the ground level of any useable area of the Subject Property or (ii) the consent of Association shall first be obtained. Nothing contained herein shall be deemed to forbid the erection or use of temporary power or telephone facilities incidental to the construction or repair of Buildings on the Subject Property. 5.13 Excavation. No excavation of the Subject Property or any Lot therein shall be made except in connection with construction of an Improvement, and upon completion exposed openings shall be backfilled and disturbed ground shall be graded, leveled, and restored to its original condition. SD 160075v8 21 10109 5.14 Noise Sensitive Use. The southerly portion of the Subject Property is contiguous to an operating airport which may produce noise. Sound-sensitive industries should consider locating themselves elsewhere within the Subject Property. Sound attenuation measures should be incorporated into all Buildings constructed within the sixty-five (65) CNEL airport noise contour boundary line. 5.15 Special Treatment Area. The northwest portion of the Subject Property is designated in the Specific Plan to receive special design consideration which will be more restrictive than that generally allowed throughout the remainder of the Subject Property. The Lots affected by the special design considerations are Lots 85-87, 89, 93, 94 and 96-100 of Phase V as shown on Carlsbad Tentative Map No. 85-24. 5.16 Other Operations and Uses. Operations and uses which are neither specifically prohibited nor specifically authorized by this Declaration may be permitted in a specific case if operational plans and specifications are submitted to and approved in writing by the Board. Approval or disapproval of such operational plans and specifications shall be based upon the effect of such operations or uses on other property subject to this Declaration or upon the Occupants thereof, but shall be in the sole discretion of the Board. ARTICLE 6 -ARCHITECTURAL REVIEW COMMITTEE 6.1 Formation of Committee. The Board may establish an Architectural Review Committee to assist the Board in reviewing submittals and to provide recommendations to the Board. The Committee shall consist of not less than three (3) nor more than five (5) individuals as fixed from time to time by the Board, for the purpose of reviewing construction and alteration of Improvements within the Subject Property as set forth in this Article and for the purpose of performing such other functions as are required pursuant to this Declaration. 6.2 Selection of Committee Members. 6.2.1 Any adult natural person shall be eligible to be a member of the Committee. 6.2.2 The members of the Committee shall be appointed by the Board for a term of one year; provided, however, any member of the Committee may be removed at any time by the Board. 6.2.3 Upon the death or resignation of any Committee member, the Board shall appoint a successor member who shall serve the remaining term of the replaced Committee member. SD 160075v8 22 10110 6.2.4 The Committee shall constitute a committee of the Board as provided in the Bylaws, and members of the Committee may, but need not be, members of the Board. The address of the Committee shall be the address established for giving notice to the Association. Such address shall be the place for the submittal of plans and specifications and the place where the Design Guidelines established by the Board shall be kept. 6.3 Rules of Procedure. The Board may adopt rules and regulations from time to time governing the Committee's activities not inconsistent herewith. The Committee shall meet at the convenience of the members thereof as often as necessary to transact its business, making recommendations on the concurrence of a majority of its members. 6.4 Conformity of Completed Improvements. Purchasers and Mortgagees of a Lot in good faith and for value, shall be deemed to be in compliance with approved plans and specifications and the Lot and Improvements in compliance with the Design Guidelines, unless notice of non-completion or non-conformance specifying the reason for the notice shall be filed on record against such Lot in the Official Records within —•- twelve (12) months of completion of the Improvements, provided that such notice may by law be recorded against a Lot or unless legal proceedings shall have been instituted to enforce compliance or completion within said twelve (12) month period. The Owner to whom a notice of non-completion or non-compliance has been issued shall be bound by such notice regardless of whether such notice has been filed of record in the Official Records. Each Owner hereby is deemed to have consented to and authorized the recordation against their Lot of such a notice of non-completion or non-compliance executed by duly authorized officers or by the president and secretary of the Association. 6.5 Functions of Architectural Committee. (a) It shall be the duty of the Committee to consider and make recommendations on proposals or plans submitted pursuant to the terms of the Declaration and the Design Guidelines, and to perform such other duties delegated to it by the Board. (b) The Committee may delegate its preliminary plan review and investigative activities to one or more members of the Committee and may consult outside consultants or professionals. Upon such delegation, the recommendations made by such person(s) shall be equivalent to a recommendation by the entire Committee. (c) The Board may, from time to time, adopt, amend and repeal Association Rules and may assess a reasonable fee as provided herein below as appropriate for the type and nature of the SD 160075v8 23 10111 Improvement, in connection with the review of plans and specifications for proposed Improvements, including without limitation, a procedure and approval of preliminary plans and drawings, as well as final approval, the number of sets of plans to be submitted, and may require such detail as it deems proper, including without limitation, floor plans, site plans, elevation drawings, and descriptions or samples of exterior material and colors. Unless any such rules are complied with, such plans and specifications shall be deemed not submitted. ARTICLE 7 - CONSTRUCTION OF IMPROVEMENTS 7.1 Approval of Plans Required. No Improvements shall be erected, placed, altered, maintained or permitted to remain on any Lot by any Owner or Occupant until final plans and specifications prepared .pursuant to the Design Guidelines, as the same may be modified by the Board from time to time, shall have been submitted to and approved by the Board. Such final plans and specifications shall be submitted in duplicate over the authorized signature of the Owner or Occupant or both of the Lot OF-— the authorized agent thereof. Requests for information and/or additional information shall be reasonable and timely, in order to avoid unnecessary delay in the approval process. Such plans and specifications must be prepared by an architect, or other licensed professional unless this requirement is waived by the Board, and shall be in such form and shall contain such information as may be reasonably required by the Board, but shall in any event include the following as applicable to the Improvements in question: 7.1.1 A site development plan of the Lot showing the nature, grading scheme, kind, shape, composition, and location of all structures with respect to the particular Lot (including proposed front, rear and side setback lines), and with respect to structures on adjoining Lots, and the number and location of all parking spaces and driveways on the Lot; 7.1.2 A landscaping plan for the particular Lot accurately depicting the proposed Improvements as well as Area III and Area IV portions of the Lot, if any; 7.1.3 A plan for the location of signs and lighting; and 7.1.4 A building elevation plan showing dimensions, materials and exterior color scheme in no less detail than required by the appropriate governmental authority for the issuance of a building permit. Material changes in approved plans must be similarly submitted to and approved by the Board. SD 160075v8 24 10112 7.2 Basis for Approval. Approval shall be based, among other things, upon adequacy of its dimensions, adequacy of structural design, conformity and harmony of external design with neighboring structures, effect of location and use of proposed improvements upon neighboring Lots, proper facing of main elevation with respect to nearby streets, adequacy of screening of mechanical, air conditioning or other rooftop installations, and conformity of the plans and specifications to the purpose and intent of this Declaration and the Design Guidelines. No plans will be approved which do not provide for the underground installation of power, electrical, telephone and other utility lines from the Property Line to Buildings and the complete visual screening of all exterior transformer and terminal equipment. Except as otherwise provided in this Declaration, the Board shall have the right to disapprove any plans and specifications submitted hereunder on any reasonable grounds, including, but not limited to, the following: 7.2.1 Failure to comply with any of the restrictions set forth in this Declaration; 7.2.2 Failure to include information in such plans and specifications as may have been reasonably requested by the Committee and Board; 7.2.3 Objection to the exterior design, the appearance of materials or materials employed in any proposed structure; 7.2.4 Objection on the ground of incompatibility of any proposed structure or use with existing structures or uses upon other property in the vicinity of the Subject Property; 7.2.5 Objection to the location of any proposed structure with reference to other property in the vicinity; 7.2.6 Objection to the grading or landscaping plan for any Lot; 7.2.7 Objection to the color scheme, finish, proportions, style or architecture, height, bulk or appropriateness of any structure; 7.2.8 Objection to the number or size of parking spaces, or to the design of the parking area; 7.2.9 Any other matter which, in the judgment of the Board, would render the proposed Improvements or use inharmonious with the general plan for improvement of the Subject Property, the Design Guidelines which the Board may promulgate from time to time, or with the quality of Improvements located upon other Lots in the vicinity. SO 160075v8 25 10113 7.2.10 The Board may condition its approval of plans and specifications ( for any Improvement on such changes therein as it deems appropriate such as, and without limitation, the approval of such Improvement by a holder of an easement which may be impaired thereby or upon approval of any such Improvement by the appropriate governmental entity. Any Board approval conditioned upon the approval by a governmental entity shall not imply the Association is enforcing any government codes or regulations, nor shall the failure to make such conditional approval imply that any such governmental entity approval is not required. 7.3 Review Fee. An architectural review fee shall be paid to the Association at such time as plans and specifications are submitted to it based upon the following: 7.3.1 The Board shall adopt a schedule of review fees which shall establish specific rates for reviews conducted by the Board. The schedule of review fees shall take into consideration the complexity of the review, and such other matters as the Board deems appropriate; provided, however, the fees shall be based upon the actual costs the Association typically incurs for similar reviews. 7.3.2 The schedule of review fees may be modified from time to time by the Board. 7.4 Result of Inaction. If the Board fails either to approve or disapprove plans and specifications submitted to it for approval within thirty (30) days after the same have been submitted, the Owner may notify the Board in writing that a response has not been received. If the Board fails to respond within thirty (30) days of receipt of this , notice from the Owner, it shall be conclusively presumed that the Board has approved > said plans and specifications; provided, however, that if within the thirty (30) day period after receipt of the notice, the Board gives written notice of the fact that more time is required for the review of such plans and specifications, there shall be no presumption that the same are approved until the expiration of such reasonable period of time as is set forth in the notice. Plans and specifications shall not be deemed to be submitted until all information required by the Board has been delivered to it. 7.5 Association Retention of Approved Plans. The Board may approve plans and specifications as submitted, or as altered or amended, or it may grant its approval to the same subject to specific conditions. Upon approval or conditional approval by the Board of any plans and specifications submitted, a copy of such plans and specifications, together with any conditions, shall be deposited for permanent record with the Association, and a copy of such plans and specifications, bearing such approval together with any conditions shall be returned to the applicant submitting the same. SD 160075V8 26 10114 7.6 Proceeding With Work. Upon receipt of approval from the Board pursuant to Section 7.5, the Owner, or Occupant, or both, to whom the same is given, shall, as soon as practicable, satisfy any and all conditions of such approval and shall diligently proceed with the commencement and completion of all approved excavation, construction, refinishing, and alterations. In all cases, work shall commence within one (1) year from the date the Owner receives approval from the Board, and if work is not so commenced, approval shall be deemed revoked unless the Board, pursuant to written request made and received prior to the expiration of said one (1) year period, extends the period of time within which work must be commenced. 7.7 Completion of Work. Any Improvement commenced pursuant hereto shall be completed within one (1) year from the date of the Board's approval of the plans and specifications therefor, except for so long as such completion is rendered impossible, or unless work upon the proposed Improvements would impose a great hardship upon the Owner or Occupant to whom the Board's approval is given, due to strike, fire, national emergency, natural disaster or other supervening force beyond the control of Owner or Occupant. The Board may, upon written request made and received prior to the expiration of the one (1) year period, extend the period of time within which the work must be completed. All work shall be accomplished (i) by licensed contractors or subcontractors, (ii) in substantial compliance with the approved plans and specifications, (iii) pursuant to lawfully required permits, all of which the Owner shall timely procure and (iv) after all governmental fees required for the work have been paid. Failure to comply with this Section 7.7 shall constitute a breach of this Declaration and subject the party in breach to the enforcement procedures set forth in Article 13. 7.8 Non-Liability for Approval. Plans and specifications are not approved for (a) engineering design, (b) compliance with governmental requirements, including zoning and building ordinances, and other applicable statutes, ordinances or governmental rules or regulations, (c) compliance with the requirements of any public utility, or (d) any easements or other private agreements. The Committee, the members thereof, the Association, the Owners, the Board, and the agents, employees, attorneys or consultants of any of the foregoing shall not be liable for any damage, loss or prejudice suffered or claimed by any person on account of: 7.8.1 The approval or disapproval of any plans, drawings and specifications, whether or not in any way defective; 7.8.2 The construction of any Improvement, or performance of any work, whether or not pursuant to approved plans, drawings and specifications; or 7.8.3 The development of any Lot within the Subject Property. 7.9 Construction Without Approval. Except as set forth in Section 6.4, if any Improvement shall be erected, placed or maintained upon any Lot, or the exterior SD160075v8 27 10115 design thereof, or any new use commenced upon any Lot, other than in accordance with the approval by the Board pursuant to the provisions of this Article 7, such alteration, erection, placement, maintenance or use shall be deemed to have been undertaken in violation of this Declaration, and upon written notice from the Board, any such Improvement so altered, erected, placed, maintained or used upon any Lot in violation of this Declaration, and such use, shall cease or be amended so as to conform to this Declaration. Should such removal or alteration, or cessation or amendment of use not be accomplished within thirty (30) days after receipt of such notice, then the party in breach of this Declaration shall be subject to the enforcement procedures set forth in Article 13. 7.10 Maintenance and Repairs. Subject to the obligations of the Association with respect to the Common Area as provided in this Declaration, each Lot and all Improvements thereon (including any loading docks) shall at all times be kept and maintained by their respective Owners in first class condition, repair and appearance. All repairs, alterations, replacements and/or additions to Improvements in the Development shall be at least equal to the original work and class and quality. The necessity and adequacy of repairs shall be measured by the same standard as for the original construction and maintenance. Each Owner of a Lot in the Subject Property shall also be responsible at all times for determining that all Improvements on the Lot, and the plans and specifications therefor, conform and comply in all respects with these restrictions, all other restrictions of record, all applicable governmental requirements, and all exterior architectural design, location and color specification set forth in or adopted under this Declaration. Each Owner of a Lot in the Subject Property shall also adopt and maintain such standards of property maintenance, appearance and housekeeping as shall be necessary or appropriate to keep and maintain the same in a first class condition, repair and appearance. 7.10.1 The Board and its authorized representatives may, from time to time, upon reasonable notice (oral or written) and at any reasonable business hours, enter upon and inspect any Lot in the Development, or any portion thereof, or improvements thereon, to ascertain compliance with these restrictions, but without obligation to do so or liability therefor. Any such inspection must be conducted in such a manner so as not to interfere with the business being conducted on the Lot and any deficiencies noted by the Board and/or its authorized representatives shall be stated in writing and delivered to the Owner of the Lot in question. Upon such written notice from the Board, the deficiencies noted shall be corrected as indicated in said notice. Should such deficiencies not be corrected within thirty (30) days after receipt of said notice, then the party in SD 160075v8 28 10116 breach of this Declaration shall be subject to the enforcement procedures set forth in Article 13. 7.11 Reconsideration. In the event plans and specifications submitted to the Board are disapproved, the party or parties making such submission may appeal in writing to the Board for a reconsideration of the plans. The written request shall be received by the Board not more than fifteen (15) days following the final decision of the Board. Within forty-five (45) days following receipt of the request for reconsideration, the Board shall schedule a hearing and render its written decision. The failure of the Board to render a decision within said forty-five (45) day period shall be deemed a decision in favor of the Owner requesting reconsideration. 7.12 Evidence of Approval. If for any reason the Board fails to cause an inspection to be made within forty-five (45) days of being notified by the Owner of the completion of an Improvement or fails to notify the Owner of any noncompliance within thirty (30) days after an inspection, the .Improvement shall be deemed to be completed in substantial conformance with approved plans and specifications. Upon satisfactory completion, an Owner shall be entitled to receive an executed and notarized notice of compliance upon request, executed by any person or persons authorized by resolutionr" of the Board or by the president and secretary of the Association. Such notice of compliance shall be conclusive evidence of compliance with the provisions of this Article as to the Improvements described in the notice. 7.13 Variances. The Board may authorize a variance from compliance with the architectural controls set forth in this Article or the Design Guidelines when hardship circumstances such as topography, natural obstructions, aesthetic, or environmental consideration may require. Written evidence of such variance must be delivered to such Owner and a copy of the resolution of the Board authorizing such variance must be retained in the permanent records of the Association. If such variances are granted, no violation of the covenants, conditions and restrictions contained in this Declaration shall be deemed to have occurred with respect to the matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular Lot and particular provision of this Article covered by the variance nor shall it affect in any way the Owner's obligation to comply with all government requirements affecting their use of their Lot including, but not limited to, zoning ordinances and lot setback lines or requirements imposed by any governmental or municipal authority. ARTICLE 8 - INSURANCE 8.1 Obligation to Insure. The Association shall obtain and maintain in effect insurance and fidelity bond coverage in the amounts and with endorsements deemed adequate by the Board for (i) general liability, (ii) fire and casualty insurance to cover the Common Area and any insurable improvements belonging to the Association SD 160075v8 29 10117 including common personal property and supplies, (iii) fidelity bonds to cover losses resulting from dishonest or fraudulent acts on the part of anyone who handles or is responsible for funds held or administered by the Association, (iv) worker's compensation insurance, (v) directors and officers liability coverage, and (vi) any other insurance deemed by the Board to be appropriate. 8.2 Waiver bv Owners. All insurance obtained by the Association shall be maintained by the Association for the benefit of the Association, the Board, Committee, Owners and the Mortgagees as their interests may appear. As to each of said policies which will not be voided or impaired thereby, the Owners hereby waive and release all claims against the Association, the Board, other Owners, and agents and employees of each of the foregoing, with respect to any loss covered by such insurance, whether or not caused by negligence or breach of any agreement by said persons, but only to the extent of insurance proceeds actually received in compensation for such loss. ARTICLE 9 - DEVELOPMENT STANDARDS 9.1 Minimum Setback. Except by variance granted pursuant to Section 7.137 no Building of any kind and no part thereof, shall be placed within thirty (30) feet of any street side Property Line adjacent to an arterial or collector street, or within twenty (20) feet of any street side Property Line adjacent to a local street, or within ten (10) feet of any interior Property Line. 9.2 Exceptions to Setback Requirement. The following Improvements, or parts of Improvements, are specifically excluded from the setback requirements set forth in Section 9.1. 9.2.1 Unsupported roof overhang or sun screen, subject to approval in writing from the Board, provided said overhang or sun screen does not extend more than six (6) feet into the setback area; 9.2.2 Steps and walkways; 9.2.3 Paving and associated curbing except that vehicle parking areas shall not be permitted within thirty (30) feet of a Property Line fronting upon any special landscaped street, or within ten (10) feet of any other street; 9.2.4 Landscaping and irrigation systems; 9.2.5 Planters, architectural fences or walls not exceeding forty-two (42) inches in height; and 9.2.6 Underground utility facilities and sewers. SD160075v8 30 10118 9.3 Landscaping. Within ninety (90) days following completion of construction, or by the date each Improvement is occupied, whichever first occurs, each Lot (except that portion thereof within Area II! or Area IV) shall be landscaped by the Owner thereof in accordance with the approved plans and specifications and in conformity with the Design Guidelines. After completion, such landscaping shall be maintained by said Owner in a sightly and well-kept first class condition. If, in the Board's reasonable opinion, the required landscaping is not maintained in a sightly and well-kept first class condition, the Board shall be entitled to the remedies set forth in Article 13. 9.4 Signs. No sign shall be permitted on any Lot unless approved by the Board or unless allowed by the Design Guidelines. All signs must comply with the Specific Plan and the Design Guidelines. All signs' must comply with the City's Sign Ordinance and receive a sign permit prior to construction. 9.5 Parking Areas. Off-street parking adequate to accommodate the parking needs of the Owner or Occupant, and the employees and visitors thereof, shall be provided by the Owner or Occupant of each Lot. The intent of this provision is to eliminate the need for any on-street parking; provided, however, that nothing herein shall be deemed to prohibit on-street parking of public transportation vehicles. Vans or other vehicles operated by or on behalf of an Owner or Occupant for transporting employees of an Owner or Occupant are not "public transportation vehicles." If parking requirements increase as a result of a change in the use of a Lot or in the number of persons employed by the Owner or Occupant, additional off-street parking shall be provided by such Owner or Occupant to satisfy the intent of this section. All parking areas shall conform to the following standards: 9.5.1 All parking shall be provided in conformance with the City's Parking Ordinance. Required off-street parking shall be provided on the Lot, on a contiguous Lot, or within such distance from the Lot as the Board deems reasonable. 9.5.2 Parking areas shall be paved so as to provide dust-free, all-weather surfaces. Each parking space provided shall be designated by lines painted upon the paved surface and shall be adequate in area. All parking areas shall provide, in addition to parking spaces, adequate driveways and space for the movement of vehicles. 9.5.3 No parking spaces shall be located on or permitted within setback areas adjacent to a street as set forth in Section 9.1, except that parking spaces may be located on or parking permitted within such area if the Board's written permission is first obtained. 9.6 Storage and Loading Areas. All storage, maintenance and loading areas must be constructed and used in accordance with plans approved by the Board. All SD160075V8 31 10119 storage, maintenance and loading areas must be kept clean and in good condition and repair. 9.7 Site Coverage. The maximum Building coverage on any Lot shall not exceed fifty percent (50%) of the total square footage of the useable area of the Lot; provided, however, that the Association may amend this Section 9.7 from time to time to allow greater maximum Building coverage if each such amendment is approved by the City of Carlsbad and any other governmental entity having jurisdiction. 9.8 Building Height. The maximum height of all structures within the Subject Property shall be thirty-five (35) feet. Some Lots, however, may be appropriate for taller Buildings. Any structure proposed to exceed thirty-five (35) feet will require the written approval of the Board, if otherwise allowed by the Specific Plan and by the applicable ordinances of the City of Carlsbad. ARTICLE 10 - MAINTENANCE OF COMMON AREAS AND FACILITIES 10.1 Association's Maintenance Responsibility. The Association shall maintain the Common Area. Such maintenance and repair shall include, without limitation: 10.1.1 Cleaning, maintenance and relamping of any external lighting fixtures except such fixtures which are the property of any Owner, utility or governmental body; 10.1.2 Performance of necessary maintenance of all landscaping as required within Area IV including the trimming, watering and fertilization of all grass, ground cover, shrubs and trees, removal of dead or waste material and replacement of any dead or diseased grass, ground cover, shrubs or trees; 10.1.3 The removal of trash and rubbish; provided, however, the Association's obligation for removal of trash and rubbish shall extend only to the Common Area, provided, further, the Association shall have no responsibility for the removal of hazardous substances from Area IV unless the Association, its agents or contractors caused the release of such substances. 10.1.4 The cleaning, maintenance and repair of all concrete terrace drains within the Common Areas or contiguous to streets within the Subject Property which are not otherwise located upon a Lot and thereby the responsibility of an Owner or Occupant pursuant to Section 5.9; SD 160075V8 32 10120 10.1.5 Maintenance of general public liability insurance for the benefit of the Association, Board and Committee and all Owners and Occupants against claims for bodily injury, death or property damage occurring on, in or about the Common Area, but not within any Lot (outside of Area IV) or the Improvements thereon or within any Building located on a Lot or within any other area within the exclusive control of any Owner or Occupant, such insurance to afford protection with respect to bodily injury or death to any one person, with respect to any one accident, and with respect to property damage, with such deductible amount(s) as the Board in its sole judgment deems reasonable. All coverage amounts under this Section 10.1.6 shall be substantially similar to those coverage amounts maintained by other associations for comparable business parks within the San Diego County area. The Board shall have the right, but not the obligation, to increase from time to time any of the coverages set forth above. Any adverse award paid as a result of any deductible provision shall be allocated among Owners in the manner set forth in Paragraph 11.1 below. — 10.2 Owner's Maintenance Responsibility. Each Owner of a Lot shall be responsible for the maintenance of its Lot and the improvements constructed thereon, including the maintenance or repair of any utility lines which service said Owner's Lot and/or Improvements. 10.3 Maintenance Bv Owners Upon Failure of Association to Do So. Should the Association be unwilling or unable to assume such obligation, or after initially assuming such obligation shall thereafter be unable or unwilling to continue such obligation, then the obligation to maintain the Common Areas and facilities shall be assigned and delegated to the Owners of the Lots within the Subject Property pro rata in accordance with their ownership interests. 10.4 Association Management Company. Nothing in this Article 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. 10.5 Easements for Association. There is hereby reserved to the Association, easements over the Subject Property for the purpose of permitting the Association to discharge its obligations and powers as described in the Association Management SD 160075v8 33 10121 Documents, including without limitation, a right to enter upon any Lot as necessary to discharge the Association's powers and obligations under the Association Management Documents, which include the construction, maintenance, or emergency repair for the benefit of the Owners. Entry for any other allowable purpose shall be made at any reasonable time, after notice to the Owner of not less than three (3) days. Any entry shall be made with as little inconvenience to the Owners as practicable. 10.6 Utilities. Wherever sanitary sewer connections, water connections, air conditioning connections or ducts, electricity, gas, telephone and cable television lines or drainage facilities are installed within the Subject Property, the Association or any Owner of any Lot served by said connections, lines or facilities shall have the right, and there is hereby reserved to Association, together with the right to grant and transfer the same to any such Owner, an easement to the full extent necessary for the full use and enjoyment of such portion of such connections which service such Owner's Lot, and to enter, or have utility companies enter upon any portion of the Subject Property including without limitation, upon the Lot in or upon which said connections, lines or facilities or any portion thereof lie, to repair, replace and generally maintain said connections, lines and facilities as and when the same may be necessary, provided that any damage caused by such entry shall be repaired by such Owner or utility company as promptly possible after completion of work thereon. ARTICLE 11 -ALLOCATION OF MAINTENANCE COSTS AND PROPERTY TAXES 11.1 Allocation of Cost of Maintaining Area IV and Taxes. Any cost of maintaining Area IV incurred as a result of the actions of a particular Owner or Occupant shall be chargeable to and paid by said Lot Owner promptly upon receipt of a written demand therefor from Association. Except as provided in the foregoing sentence, the cost of maintaining Area IV shall be allocated among the Owners of Lots within the Subject Property. Each Owner's share of cost of maintaining Area IV shall be allocated according to the Acreage as set forth in Exhibit "B." So long as Association owns any Master Association Property, the real property taxes, if any, assessed to such Master Association Property shall be likewise allocated among the Owners. 11.2 Computation of Maintenance Costs. All of the costs incurred by Association to perform its obligations set forth in Section 10.1 hereof shall include all of the Association's actual out-of-pocket expenses to perform such services, the cost of administration thereof, including the cost of accounting for the computation and collection of maintenance costs and real property taxes, reserves, a reasonable reserve for delinquent accounts, if necessary, all of such costs to be determined in accordance with generally accepted accounting principles consistently applied. 11.3 Assessment of Costs. All estimated costs and expenses of maintenance shall be assessed in advance by Association and billed to each Owner not less frequently than once each calendar quarter. Such Assessment shall be paid by each SD 160075v8 34 10122 Owner promptly upon receipt thereof. The amount, if any, by which any Assessments received in advance from any Owner exceed such Owner's actual share of maintenance expenses for a billing period shall be credited against the estimated costs and expenses for the ensuing billing period. ARTICLE 12 - MODIFICATION AND AMENDMENT 12.1 Procedure. Except as otherwise provided in Section 12.2, this Declaration, any provision hereof, or any covenant, condition or restriction contained herein, may be terminated, extended, modified or otherwise amended, as to the whole of the Subject Property or any portion thereof, with the written consent of the Owners of Lots the aggregate area of which is at least fifty-one percent (51 %) of the aggregate area of all Lots as set forth in Exhibit "B." No such termination, extension, modification or other amendment shall be effective until a proper instrument in writing has been executed, acknowledged and recorded. 12.2 Approval bv the City of Carlsbad. Any amendment or modification to this Declaration affecting the maintenance obligations of the Association, or any Owner or - which seeks to dissolve the Association or otherwise materially modify any of the obligations or duties imposed or required by the Specific Plan and Carlsbad Tracts 81- 10 and 85-24 shall require the prior written approval of the City's Planning Director and City Attorney of the City of Carlsbad. 12.3 Governmental Regulation. All valid governmental enactments, ordinances and regulations are deemed to be a part of this Declaration and to the extent that they conflict with any provision, covenant, condition or restriction hereof, said conflicting governmental requirement shall control and the provision, covenant, condition or restriction hereof in conflict therewith shall be deemed (i) amended to the extent necessary to bring it into conformity with said enactment, ordinance or regulation while still preserving the intent and spirit of the provision, covenant, condition or restriction or (ii) stricken herefrom should no amendment conforming to the governmental enactment, ordinance or regulation be capable of preserving the intent and spirit of said provision, covenant, condition or restriction. ARTICLE 13 - ENFORCEMENT 13.1 Default and Remedies. In the event of any breach, violation or failure to perform or satisfy any covenant, condition or restriction which has not been cured within thirty (30) days after written notice to do so, Association at its sole option and discretion may enforce any one or more of the following remedies or any other rights or remedies to which Association may be entitled by law or equity, whether or not set forth herein. All remedies provided herein or by law or equity shall be cumulative and not mutually exclusive. SD160075v8 35 10123 13.2 Damages. Association may bring suit for damages for any compensable breach of or noncompliance with any of the covenants, conditions or restrictions, or declaratory relief to determine the enforceability of any of these covenants, conditions or restrictions. 13.3 Equity. It. is recognized that a violation by an Owner of one or more of the foregoing covenants, conditions or restrictions may cause Association to suffer material injury or damage not compensable in money and that Association shall be entitled to bring an action in equity or otherwise for specific performance to enforce.compliance with these covenants, conditions, and restriction or an injunction to enjoin the continuance of any such breach or violation thereof. 13.4 Abatement and Lien Rights. Any such breach or violation of these covenants, conditions and restrictions or any provision hereof is hereby declared to be a nuisance, and Association shall be entitled to enter the Lot or portion of the Subject Property as to which the breach or violation exists and summarily abate and remove, without further legal process to the maximum extent permitted by law, any structure, thing or condition that may exist in violation of any of these restrictions, or take those — actions which are required of any person or entity which is subject to this Declaration, or to prosecute any remedy allowed by law or equity for the abatement of such nuisance against any person or entity acting or failing to act in violation of these restrictions, all at the sole cost and expense of Owner or any person having possession under Owner. 13.5 Waiver. No waiver by Association of a breach of any of these restrictions and no delay or failure to enforce any of these restrictions shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other of these covenants, conditions and restrictions. No waiver by Association of any breach or default hereunder shall be implied from any omission by Association to take any action on account of such breach or default if such breach or default persists or is repeated, and no express waiver shall affect a breach or default other than as specified in said waiver. The consent or approval by Association to or of any act by an Owner requiring Association's consent or approval shall not be deemed to waive or render unnecessary Association's consent or approval to or of any similar acts by Owner. 13.6 Costs of Enforcement. In the event any legal or equitable action or proceeding shall be instituted to enforce any provision of these restrictions or concerning the enforcement of these restrictions, the party prevailing in such action shall be entitled to recover from the losing party all of its costs, including court costs and reasonable attorneys' fees. 13.7 Nonexclusive Rights of Enforcement. The rights of enforcement granted to Association are nonexclusive. Concurrently, each Owner and the Association, its successors and assigns, are hereby granted all of the rights of enforcement and the remedies provided to Association by this Article 13. Any such Owner may seek SD160075v8 36 10124 enforcement of all remedies in accordance with the provisions of this article independently of Association. 13.8 Enforcement by the City of Carlsbad. The City of Carlsbad may independently enforce those portions of the Declaration which directly relate to the conditions, duties or obligations required or imposed by the Specific Plan and Carlsbad Tracts 81-10 and 85-24. In the event the City elects to seek enforcement, or in the event of a breach of any duty or interference with sny of the rights or benefits herein established the City Manager may give written notice of such breach or interference to the Association together with a written demand to remedy the breach or interference by enforcing the Declaration. If the Association refuses to do so, or fails to take appropriate action within ninety (90) days of the receipt of said written notice, upon a resolution of the City Council of said City, the City shall have the full power to enforce the Declaration, including without limitation the power to assess, to lien/and to foreclose, in respect to the matters set forth in the notice. Any funds collected by the City shall be applied, after deducting expenses of enforcement, to correct the breach or interference, and any excess funds shall be applied for the benefit of the Association for the reimbursement of any expenses incurred. ARTICLE 14 - CONSTRUCTIVE NOTICE AND ACCEPTANCE Every person or entity who now or hereafter owns, occupies or acquires any right, title or interest in or to any portion of the Subject Property is and shall be conclusively deemed to have consented and agreed to every covenant, condition and restriction contained herein, whether or not any reference to this Declaration is contained in the instrument by which such person acquired an interest in the Subject Property. ARTICLE 15-WAIVER No Board member, Committee member, or any Owner who acts without compensation under the direction of the Board or the Committee (individually "Association Representative") shall be liable to any Owner or Occupant of any Lot by reason of any mistake in judgment, negligence, nonfeasance, action or inaction or for the enforcement or failure to enforce any provision of this Declaration. Every Owner or Occupant of any of said property by acquiring its interest therein agrees that it will not bring any action or suit against any Association Representative to recover any such damages or to seek equitable relief because of same. Anything to the contrary notwithstanding, nothing in this Article 15 is intended to relieve the Association from any liability it may have for any mistake in judgment, negligence, nonfeasance, action or inaction or for the enforcement or failure to enforce any provision of this Declaration. SO 160075v8 37 10125 ARTICLE 16 - RUNS WITH LAND All covenants, conditions, restrictions and agreements herein contained are made for the direct, mutual and reciprocal benefit of each and every Lot of the Subject Property; shall create mutual equitable servitudes upon each Lot in favor of every other Lot; shall create reciprocal rights and obligations between respective Owners and Occupants on all Lots and privity of contract and estate between all Owners of said Lots, their heirs, successors and assigns; and shall, as to the Owner and Occupant of each Lot, his heirs, successors and assigns, operate as covenants running with the land, for the benefit of all other Lots, except as provided otherwise herein. ARTICLE 17 - RIGHTS OF MORTGAGEES No breach or violation of these covenants, conditions and restrictions shall defeat or render invalid the lien of any Mortgage, deed of trust or similar instrument securing a loan made in good faith and for value with respect to the Development or permanent financing of any Lot or portion thereof; provided that all of these restrictions shall be binding upon and effective against any subsequent Owner of the Lot or any •— portion thereof whose title is acquired by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise pursuant to such lien rights. ARTICLE 18 - CAPTIONS The captions of articles and paragraphs herein are used for convenience only and are not intended to be a part of this Declaration or in any way to define, limit or describe the scope and intent of the particular article or paragraph to which they refer. ARTICLE 19 - EFFECT OF INVALIDATION If any provision of this Declaration is held to be invalid by any court, the invalidity of such provision shall not affect the validity of the remaining provisions hereof. SD160075v8 . 38 10126 ARTICLE 20 - COMPLIANCE WITH LAW, INDEMNITY Each Owner and Occupant, by acceptance of title or possession to any Lot, covenants that it shall comply with all governmental laws and regulations affecting the ownership, use and activities upon the Subject Property and shall indemnify and hold harmless the Association and its Board, and the Committee, from any and all liability, including without limitation attorneys' fees and litigation expense, arising from or out of a breach of the foregoing covenant. Carlsbad Research Center Owners Association a California Nonprofit Mutual Benefit Corporation r\Dated: rif<s>t/sr ?>& ~7^t> ( Dated: Ao&^ST 3 2.<9o By:. Its: SO 160075v8 39 10127 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I W-n Di€t\pJ }ss. %3t)f JC&). before me,Data _Date personally appeared &f/p /(/* fi Name and Title of Officer (e.g., "Jane Doe, Notary Publi ROBIN HEATH GULP ^ Commission # 1304934 I Notary Public - California f San Diego County r MyCofnm. Expires May 18,2005 f Name(s) of Signer's) D personally known to me Cf-ptoved 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. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date:. Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed, by Signer Sianer's Name: r*-£ b-£f~r *J~ , h~t RIGHT THUMBPRINT OF SIGNER D-e6rporate Officer — Title(s): *&t-&r£. ~\&*'Tj D Partner — D Limited D General ^ O Attorney in Fact D Trustee D Guardian or Conservator n Other: Sianer Is Reoresentina: ' Top of thumb here '^SiiSzijJij&iisizssl- ®se®$£f(i$&f$£<3ii®$if$Si£&KXSK%ili^^ IS 1999 National Notary Association • 9350 Da Soto Are., P.O. Box 2402 • Chatsworth, CA 91313-2402 • wmt.nationalnotarf.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 10128 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Date personally appeared Name and Title of Officer (e.g., 'Bane Doe, Notary PublicJ Otnr\'\i> ROBIN HEATH GULP Commission # 1304934 Notary Public - California San Diego County * T. Expires M«yl a, zoos T Name(s) of Signer(s) D personally known to me QkpToved 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. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: _#'-. £>££- Document Date: T Signer(s) Other Than Named Above: Number of Pages: Capacity(ies) Claimed by Signer Signer's Name: rf\&T*-— JJ. Q Individual CfCorporate Officer — Title(s): D Partner — G Limited D General D Attorney in Fact D Trustee Q Guardian or Conservator D Other: RIGHT THUMBPRI NT OF SIGNER Top of thumb here Signer Is Representing:.tilt* g£®SJSSS©SJS3@SSg<S@<>®BSe©SS®S£®S?©^ 61999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder Call Toll-Free 1 -800-876-6827 10129 EXHIBIT "A" - PROJECT LEGAL DESCRIPTION Parcel 1 (Phase I) Lots 1 through 24, inclusive, of Carlsbad Tract No. 81-10, Unit No. 1, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 10330, filed in the office of the County Recorder of said county on February 18, 1982. Parcel 2 (Phase II) Lots 26, 27 and 29 through 43, inclusive, of Carlsbad Tract No. 81-10, Unit No. 2A, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 11134, filed in the office of the County Recorder of said county on January 31, 1985, Parcel 1 (Phase III) .._ Lots 44 through 49, inclusive, of Carlsbad Tract No. 85-24, Unit No. 3, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 11810, filed in the office of the County Recorder of San Diego, May 19, 1987. Parcel 2 (Phase IV) Lots 50 through 75, inclusive, of Carlsbad Tract No. 85-24, Unit No. 4, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 11811, filed in the office of the County Recorder of San Diego, May 19, 1987. Parcel 3 (Phase V) Lots 76 through 110, inclusive, of Carlsbad Tract No. 85-24, Unit No. 5, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 12815, filed in the off ice of the County Recorder of San Diego, May 17, 1991. Including any Lots or parcels into which the foregoing Lots have been divided, and any boundary adjustments thereto effected, prior to the date of recording hereof. SD 160075v8 40 10130 EXHIBIT "A-1" - AREAS I, II, III, AND IV AREA I: INDUSTRIAL LOTS: Lots 2 and 3 and Lots 6 through 24, inclusive, of Carlsbad Tract No. 81-10, Unit No. 1, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 10330, filed in the Office of the County Recorder of said county. Lots 25 through 43, inclusive, of Carlsbad Tract No. 81-10, Unit No. 2A, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 11134, filed in the office of the County Recorder of said county. Lots 44 through 47, inclusive, of Carlsbad Tract No. 85-24, Unit No. 3, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 11810, filed in the office of the County Recorder of said county. Lots 51 through 71, inclusive, 74, 75 of Carlsbad Tract No. 85-24, Unit No. 4, in the Cfty- of Carlsbad, County of San Diego, State of California, according to Map thereof No. 11811, filed in the office of the County Recorder of said county. Lots 76 through 109, of said Carlsbad Tract No. 85-24, Unit No. 5, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 12815, filed in the office of the County Recorder May 17,1991. AREA II: COMMERCIAL LOTS: Lots 1, 4 and 5 of Carlsbad Tract No. 81-10, Unit No. 1, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 10330, filed in the office of the County Recorder of said county. Lots 48 and 49 of Carlsbad Tract No. 85-24, Unit No. 3, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 11810, filed in the office of the County Recorder of said county. Lots 50, 72 and 73 of Carlsbad Tract No. 85-24, Unit No. 4, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 11810, filed in the office of the County Recorder of said county. AREA III: NATURAL OPEN SPACE: Portions of Lots so designated on each plat kept in the Association records or as may be recorded from time to time by the Board. SD160075v8 41 10131 AREA IV: PRIVATE COMMON AREA: Portions of Lots so designated on each plat kept in the Association records or as may be recorded from time to time by the Board. Lot 110 of said Carlsbad Tract No. 85-24, Unit No. 5, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 12815, filed in the office of the County Recorder May 17, 1991. SD 160075v8 42 CARLSBAD RESEARCH CENTER Exhibits 10132 Lot# 1A 1B 2 3 4 5 6 7 8 9 10B 10C 11 12 13 14 15 16 17 18 19 20 21" 22" 23" 24 Phase 1 Total Per 4th Decl. PHASE 1 Net Sellable Acreage 1 .050 5.762 13.675 incl in #2 5.053 8.214 4.735 4.586 4.325 4.775 2.681 3.152 7J252 7.482 4.112 8.951 2.712 6.377 1.919 2.416 1.999 ..1.551 2.499 0.000 3.158 1.775 110.211 No. of votes 1,050 5,762 4,120 n/a 5,053 8,214 4,735 4,586 4,325 4,775 2,681 3,152 7,252 7,482 4,112 8,951 2,712 6,377 1,919 2,416^ 1,999 1,551 2,499 n/a 3,158 1,775 110,211 Vote % 0.262% 1.438% 3.413% n/a 1.261% 2.050% 1.182% 1.145% 1.080% 1.192% 0.669% 0.787% 1.810% 1.868% 1.026% 2.234% 0.677% 1.592% 0.479% 0.603% 0.499% 0.387% 0.624% n/a 0.788% 0.443% 27.510% **Lot 22 was split between lots 21 and 23 Page 8/15/01 4:43 PM CARLSBAD RESEARCH CENTER Exhibit B 10133 Lot# 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39* 40* 41* 42* 43 Phase II Total Per4thDecl. PHASE II Net Sellable Acreage 1.945 2.049 1.971 1.624 1.528 2.106 2.852 1.876 2.198 2.862 2.821 1.901 1.450 3.693 8.372 2.588 6.738 2.877 4.012 ~55.463 No. of Votes 1,945. 2,049 1,971 1,624 1,528 2,106 2,852 1,876 2,198 2,862 2,821 1,901 1,450 3,693 8,372 2,588 6,738 2,877 4,012 55,463 Vote % 0.485% 0.511% 0.492% 0.405% 0.381% 0.526% 0.712% 0.468% 0.549% 0.714% 0.704% 0.475% 0.362% 0.922% 2.090% 0.646% 1 .682% 0.718% 1.001% 13.844% tots 39-42 had significant |ot line adjustments. Page 2~of 8/15/01 2:22 PM CARLSBAD RESEARCH CENTER Exhibit B 10134 Lot# 44 45 46 47 48 49 Phase III Total Per 4th Decl. PHASE III Net Sellable Acreage 12.718 12.599 2.883 3.489 3.178 3.162 38.029 No. of Votes 12,718 12,599 2,883 3,489 3,178 3,162 38,029 Vote % 3.175% 3.145% 0.720% 0.871% 0.793% 0.789% 9.492% Page3 of 6>8/15/01 2:1 OPM CARLSBAD RESEARCH CENTER Exhibit B 10135 Lot# 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68* 69* 70 71 72 73 74 75 Phase IV Total Per 4th Decl. PHASE IV Net Sellable Acreage 9.000 5.805 2.145 1.501 2.120 3.395 4.656 3.257 1.775 2.824 2.242 3.076 4.112 3.096 2.322 6.655 3.589 1.343 1.753 4.724 ~3.816 3.746 3.765 5.555 2.836 3.073 92.181 No. of Votes 9,000 5,805 2,145 1,501 2,120 3,395 4,656 3,257 1,775 2,824 2,242 3,076 4,112 3,096 2,322 6,655 3,589 1,343 1,753 4,724 3,816 3,746 3,765 5,555 2,836 3,073 92,181 Vote % 2.246% 1.449% 0.535% 0.375% 0.529% 0.847% 1.162% 0.813% 0.443% 0.705% 0.560% 0.768% 1.026% 0.773% 0.580% 1.661% 0.896% 0.335% 0.438% 1.179% 0.953% 0.935% 0.940% 1.387% 0.708% 0.767% 23.009% * Contain Area III in original calculation Page^f of 8/15/01 2:14 PM CARLSBAD RESEARCH CENTER Exhibit B 10136 r Lot# 76 77 78 79* 80* 81* Par A1 ** ParA2** Par A3** ParA4** 92 93 94 95 96 97 98 99 100* 101* 102* 103* 104* 105* 106* 107* 108* 109 Phase V Total Per 4th Decl. PHASE V Net Sellable Acreage 4.694 6.359 4.966 3.590 2.590 4.130 17.610 5.140 5.070 3.580 2.528 1.730 1.404 1.772 2.699 2.137 1.835 1.780 3.607 1.462 4.340 1.412 1.154 1.508 4.070 4.680 5.020 3.876 104.743 No. of Votes 4,694 6,359 4,966 3,590 2,590 4,130 17,610 5,140 5,070 3,580 2,528 .1,730 1,404 1,772 2,699 2,137 1,835 1,780 3,607 1,462 4,340 1,412 1,154 1,508 4,070 4,680 5,020 3,876 104,743 Vote % 1.172% 1.587% 1.240% 0.896% 0.646% 1.031% 4.396% 1.283% 1.266% 0.894% 0.631% 0.432% 0.350% 0.442% 0.674% 0.533% 0,458% 0.444% 0.900% 0.365% 1.083% 0.352% 0.288% 0.376% 1.016% 1.168% 1.253% 0.967% 26.145% * Contain Area III in original calculation ** Originally a part of Parcel A, comprising tc 33.302 net acres per 3rd Dec; relative changi comparisons for A1-A4 are approximate. 110 ***0 n/a Emerald Lake; not included in voting or assessments. Page^bf 8/15/01 2:16PM CARLSBAD RESEARCH CENTER Exhibit B 10137 Phase Phase 1 Phase 11 Phase III Phase IV Phase.V Totals Lot#s 1 -24 25-43 26-49 50-75 76-109 Per 4th Decl. Net Sellable Acreage 110.211 55.463 38.029 92.181 104.743 400.627 Vote % 27.510% 13.844% 9.492% 23.009% 26.145% 100.000% Pageb of G>8/15/01 2:18 PM