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MINUTES - 10052004 - C44
TO: BOARD OF SUPERVISORS CONTRA FROM: BARTON J. GILBERT, DIRECTOR OF GENERAL SERVICES COSTA DATE: OCTOPER 5, 2004 COUNTY SUBJECT: LEASE FOR THE PREMISES AT 171 SAND CREEK ROAD, '1&1 BUILDING 4, UNIT A, BRENTWOOD FOR THE HEALTH SERVICES DEPARTMENT (CP ##04-34) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION 1. APPROVE a Lease, commencing January 1, 2005, with Sand Creek Business Center 11, L.P. for the premises at 171 Sand Creek Road, Building 4, Unit A, Brentwood, for occupancy by the Health Services Department Brentwood Health Center, under the terms and conditions more particularly set forth in the Lease. 2. AUTHORIZE the Director of General Services, or designee, to EXECUTE the Lease on behalf of the County and to EXERCISE any options to extend the Lease. 3. DETERMINE that the project is a Class 27 Categorical Exemption under the California Environmental Quality Act (CEQA). 4. DIRECT the Director of Community Development, or designee, to file a Notice of Exemption with the County Clerk, and DIRECT the Director of General Services, or designee, to arrange for the payment of the handling fees to the Community Development Department and County Clerk for filing of the Notice of Exemption. FINANCIAL IMPACT The lease is for a ten year period beginning January 1, 2005 and ending December 31, 2014. The lease payment for the first year is $16,586 per month, increasing 3% per year for years two through five and 4% per year for years six through ten. Rent for the current Brentwood Health Center location at 118 Oak St. is $3,230 per month. The net increase in rent to be charged to the Health Services Department is $13,356 per month, or $160,272 in the first year. The tenant improvement cost for the new location is $1,886,000, with the Lessor contributing a tenant improvement allowance of $502,600 and the Health Services Department paying the balance of $1,383,400. This amount will be financed over ten years, with an estimated annual debt service payment of$175,000. CONTINUED ON ATTACHMENT: X YES SIGNRT //f r _RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMEND iGW-OE BORF�OO MITTEE �PPROVE OTHER ~ a��SIGNATURES: n ACTION OF 8 R N { L€ s �r APPROVED AS RECOMMENDED OTHER L VOTE OF SUPERVISORS A� UNANIMOUS(ABSENT AYES: NOES: ABSENTS: ABSTAIN: MEDIA CONTACT:BARTON J.GILBERT(313-7100) Originating Dept.:General Services Department I HEREBY CERTIFY THAT THIS IS A TRUE cc: General Services Department AND CORRECT COPY OF AN ACTION TAKEN Lease Management Division AND ENTERED ON THE MINUTES OF THE BOARD Accounting OF SUPERVISORS ON THE DATE SHOWN. Auditor-Controiler(via UM) Risk Management'via UM} ATTESTED . Health Services Department(via UM) JOHN SWEETEN,CLERK OF BOARD 0,-�'UPERVISORS Sand Creek Business Center 11,L.P.(via UM) AND COUNTY ADMINISTRATOR r r BYa - ._ C. DEPUTY I:1LeaseMgt\Board Orders12004-10-051171 Sand Creek Bd Order.doc CB:tb Page 1 of 2 M382(10188) LEASE FOR THE PREMISES AT 171 SAND CREEK October 5, 2004 ROAD, BUILDING 4, UNIT A, BRENTWOOD FOR THE HEALTH SERVICES DEPARTMENT (CP #04-34) The projected additional cost to the Health Services Department` from increased rent and debt services associated with this project is $335,272. The Health Services Department projects that this cost will be more than fully offset by additional revenues generated from increased services delivered at the expanded facility. The project will increase the number of exam rooms at the Brentwood Health Center from 8 to 15, substantially increasing revenues that will be generated from services delivered. No additional net County cost is projected. BACKGROUND For the past 25 years, the Brentwood Health Center has occupied 4,585 square feet at 118 Oak St., a building owned by the City of Brentwood. The City has given notice to the County that the City now requires this space for its own use, and has given the County until the end of January 2005 to vacate. During the period that the Brentwood Health Center has occupied its current location, the population of the area it ser,res has grown dramatically. The Brentwood Health Center is currently the smallest health clinic in the County, and has insufficient capacity to serve the rapidly growing East County region. The new clinic located at 171 Sand Creek Road, Brentwood, will enable Health Services to better meet the increasing demand for clinic services in East County. The leased building will provide 10,052 square feet of new built-to-suit health clinic office space. The County has two five-year options to extend the lease through 2024. 1ALeaseMgtlBoard orders12004-10-45\171 Sand Creek 8d order.doc Page 2 of 2 M382(10188) TO: BOARD OF SUPER ISORS CONTRA FROM: BARTON J. GILBERT, DIRECTOR OF GENERAL SERVICES ' COSTA DATE: OCTOBER. 5, 2004 COUNTY SUBJECT: LEASE FOR THE PREMISES AT 171 SAND CREEK ROAD, I N&I BUILDING 4, UNIT A, BRENTWOOD FOR THE HEALTH SERVICES DEPARTMENT (CP #04-34) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION 1. APPROVE a Lease, commencing January 1, 2005, with Sand Creek Business Center 11, L.P. for the premises at 171 Sand Creek Road, Building 4, Unit A, Brentwood, for occupancy by the Health Services Department Brentwood Health Center, under the terms and Conditions more particularly set forth in the Lease. 2. AUTHORIZE the Director of General Services, or designee, to EXECUTE the Lease on behalf of the County and to EXERCISE any options to extend the Lease. 3. DETERMINE that the project is a Class 27 Categorical Exemption under the California Environmental Quality Act (CEQA). 4. DIRECT the Director of Community Development, or designee, to file a Notice of Exemption with the County Clerk, and DIRECT the Director of General Services, or designee, to arrange for the payment of the handling fees to the Community Development Department and County Clerk for filing of the Notice of Exemption. FINANCIAL IMPACT The lease is for a ten year period beginning January 1, 2005 and ending December 31, 2014. The lease payment for the first year is $16,586 per month, increasing 3% per year for years two through five and 4% per year for years six through ten. Rent for the current Brentwood Health Center location at 118 Oak St. is $3,230 per month. The net increase in rent to be charged to the Health Services Department is $13,356 per month, or $150,272 in the first year. The tenant improvement cdst for the new location is $1,886,000, with the Lessor Contributing a tenant improvement allowance of $502,600 and the Health Services Department paying the balance of $1,383,400. This amount will be financed over ten years, with an estimated annual debt Service payment of$175,000. CONTINUED ON ATTACHMENT:—,X YES SIGNAT RECOMMENDATION OF COUNTY ADMINISTRATOR RwCOMMEND i9t3 Q BOA OMMITTEE --AA PROVE OTHER SIGNATURE(S):q,—�-�-, ACTION OF B R N lJU APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS UNANIMOUS(ABSENT �� } AYES: NOES: ABSENTS: ABSTAIN: MEDIA CONTACT:BARTON J.GILBERT(313-7100) Originating Dept.:General Services Department I HERESY CERTIFY THAT THIS IS A TRUE cc: General Services Department AND CORRECT COPY OF AN ACTION TAKEN Lease Management Division AND ENTERED ON THE MINUTES OF THE BOARD Accounting OF SUPERVISORS ON THE DATE SHOWN. Auditor-Controller(via L IM) Risk Management',via UM) ATTESTED 'Jn Health Services Department(via UM) JOHN SWEETEN,CLERK OF T BOARD OFUPERVISORS Sand Creek Business Center LI,L.P. (via L/M) A DC T Y ADMINISTRATO. BY C U�" "" fir'✓ DEPUTY i:\LeaseMgt\8oard Orders12004-10-051171 Sand Creek Bd Order.doc CB:tb Pagel of 2 M362(10/88) LEASE FOR THE PREMISPAT 171 SAND CREEK October 5, 2004 ROAD, BUILDING 4, UNIT A, BRENTWOOD FOR THE HEALTH SERVICES DEPARTMENT (CP #04-34) The projected additional cost to the Health Services Department from increased rent and debt services associated with this project is $335,272. The Health Services Department projects that this cost will be more than fully offset by additional revenues venerated from increased services delivered at the expanded facility. The project will increase the number of exam rooms at the Brentwood Health Center from 8 to 15, substantially increasing revenues that will be generated from services delivered. No additional net County cost is projected. BACKGROUND For the past 25 years, the Brentwood Health Center has occupied 4,685 square feet at 118 Oak St., a building awned by the City of Brentwood. The City has given notice to the County that the City now requires this space for its own use, and has given the County until the end of January 2005 to vacate. During the period that the Brentwood Health Center has occupied its current location, the population of the area it serves has grown dramatically. The Brentwood Health Center is currently the smallest health clinic in the County, and has insufficient capacity to serve the rapidly growing East County region. The new clinic located at 171 Sand Creek Road, Brentwood, will enable Health Services to better meet the increasing demand for clinic services in East County. The leased building will provide 10,052 square feet of new built-to-suit health clinic office space. The County has two five-year options to extend the lease through 2024. !:\LeaseMgt\Board Orders12004W10-051971 Sand Creek Bd Order.doc Page 2 of 2 M382(10/88) SAND CREED BUSINESS CENTER,BLDG. # 4,UNITS A THROUGH E BRENTWOOD, CALIFORNIA LEASE AGREEMENT TABLE OF CONTENTS LEASESUMMARY .......................................................................................................................1 1. LANDLORD: ................................................................................................................1 2. TENANT: ......................................................................................................................1 3. PREMISES/RENTABLE AREA: .................................. .................................... 1 4. ADDRESS OF PREMISES:........................................... ...................................... 1 5. USES PERMITTED: .................................................................... ................................1 6. TERM: ...........................................................................................................................1 7. BASE RENT:.......................................................:-*------...."**"**...*'**'**'*'* --1 8. SECURITY DEPOSIT: .................................................................. ..............................2 LEASEAGREEMENT ...................................................................................................................1 1. PREMISES ....................................................................................................................1 2. USE................................................................................................................................1 2.1 Permitted Uses .................................................................................................1 2.2 Compliance with Law and Private Restrictions ...............................................1 2.3 Restriction on Use..............................................................................................2 2.4 Hazardous Materials ..........................................................................................2 2.5 Use of Common Area........................................................................................4 2.6 Noise and Emissions..........................................................................................4 2.7 Trash Disposal ...................................................................................................4 2.8 Rules and Regulations........................................................................................4 2.9 Reservations .....................................................................................................5 3. TERM ............................................................................................................................5 3.1 Commencement Date.........................................................................................5 3.2 Proration.............................................................................................................5 4. RENT.............................................................................................................................5 4.1 Base Rent...........................................................................................................5 4.2 Additional Rent..................................................................................................6 4.3 Late Charge and Interest....................................................................................7 ()ey 1 4.4 Place of Payment................................................................................................7 4.5 Security Deposit.................................................................................................7 5. PARKING......................................................................................................................7 6. MAINTENANCE AND REPAIRS.............................................................. .........8 6.1 Tenant's Obligations..........................................................................................8 6.2 Landlord's Obligations ......................................................................................8 7. OPERATING EXPENSES............................................................................................8 8. CONSTRUCTION OF PREMISES; ACCEPTANCE AND SURRENDER OF PREMISES ....................................................................................................................9 8.1 Tenant Improvements ........................................................................................9 8.2 Acceptance and Surrender...............................................................................10 9. ALTERATIONS..........................................................................................................10 9.1 Landlord's Consent..........................................................................................10 9.2 Plans and Permits ...........................................................................................11 9.3 Construction Work Done by Tenant................................................................11 9.4 Roof Repairs ....................................................................................................11 9.5 Title to Alterations...........................................................................................11 9.6 Notice...............................................................................................................11 10. UTILITIES AND SERVICES.....................................................................................12 11. TAXES.........................................................................................................................12 11.1 Real Property Taxes.........................................................................................12 11.2 Taxes on Tenant's Property.............................................................................13 12. INSURANCE...............................................................................................................13 12.1 Tenant's Liability Insurance............................................................................13 12.2 Property Coverage ...........................................................................................13 12.3 Form and Certificates.......................................................................................13 12.4 Landlord's Liability Insurance.........................................................................13 12.5 Property Insurance...........................................................................................13 12.6 Payment............................................................................................................14 12.7 Waiver of Subrogation.....................................................................................14 12.8 No Limitation of Liability................................................................................14 13. WAIVER AND INDEMNIFICATION.......................................................................14 14, LIENS ..........................................................................................................................15 �� ii 15. ASSIGNMENT AND SUBLETTING ........................................................................15 15.1 Consent Required.............................................................................................15 15.2 Documentation.................................................................................................16 15.3 Additional Terms and Conditions....................................................................16 15.4 Partnership/LLC...............................................................................................16 15.5 Corporation......................................................................................................17 15.6 Landlord's Remedies.......................................................................................17 16. DEFAULT BY TENANT............................................................................................17 16.1 Event of Default...............................................................................................17 16.2 Remedies..........................................................................................................18 16.3 No Relief From Forfeiture After Default.........................................................19 16.4 Additional Rent................................................................................................19 16.5 Remedies Not Exclusive..................................................................................20 17. DEFAULT BY LANDLORD ......................................................................................20 17.1 Cure Period......................................................................................................20 17.2 Mortgage Protection.........................................................................................20 18. SUBORDINATION AND MORTGAGES....................... ........20 19. ENTRY OF PREMISES..............................................................................................21 20. VACATION OR ABANDONMENT..........................................................................21 21. DAMAGE OR DESTRUCTION.................................................................................21 21.1 Partial Damage-Insured ...................................................................................21 21.2 Partial Damage-Uninsured...............................................................................22 21.3 Total Destruction.............................................................................................22 21.4 Damage Near End of Term..............................................................................22 21.5 Abatement of Rent...........................................................................................22 21.6 Waiver..............................................................................................................22 21.7 Tenant's Property.............................................................................................23 21.8 Notice of Damage............................................................................................23 21.9 Replacement Cost............................................................................................23 22. EMINENT DOMAIN................................................................. ..................._...._23 23. SALE OR CONVEYANCE BY LANDLORD....................... .............24 24. ATTORNMENT TO LENDER OR THIRD PARTY.................................................24 25. HOLDING OVER.......................................................................................................24 26. ESTOPPEL CERTIFICATE........................................................................................24 27. RIGHT OF LANDLORD TO PERFORM..................................................................25 28. ATTORNEYS' FEES..................................................................................................25 29, WAIVER......................................................................................................................25 30. NOTICES.....................................................................................................................25 31. AUTHORITY..............................................................................................................25 32. LIMITATION OF LIABILITY...................................................................................26 33. MISCELLANEOUS AND GENERAL PROVISIONS ..............................................26 34. BROKER DISCLOSURE............................................................................................27 35. COMMISSION............................................................................................................27 36. SIGNAGE....................................................................................................................27 37. GUARANTY...............................................................................................................28 38. ADVICE OF COUNSEL.............................................................................................28 EXHIBIT A-1 DIAGRAM OF PREMISES.................................................................................29 EXHIBIT A-2 DESCRIPTION OF PROPERTY.........................................................................30 EXHIBIT A-3 COMMON AREA................................................................................................31 EXHIBITA-4 THE CENTER......................................................................................................32 EXHIBIT B DECLARATION OF COVENANTS, CONDITIONS OF SAND CREEK BUSINESSCENTER....................................................................................................................33 EXHIBIT C RULES AND REGULATIONS...............................................................................34 EXHIBIT D EXTENSION OPTION............................................................................................37 EXHIBITE PARKING AREA ....................................................................................................37 EXHIBIT F TENANT IMPROVEMENTS.,........................................... .....................................38 EXHIBIT G-I LANDLORD'S WAIVER.....................................................................................42 EXHIBIT G-2 MORTGAGEE'S WAIVER..................................................................................42 GLOSSARY..................................................................................................................................46 iv SAND CREED BUSINESS CENTER,BLDG. #4, UNITS A THROUGH E BRENTWOOD, CALIFORNIA LEASE SUMMARY The following information is incorporated into the terms of the attached Lease Agreement: 1. LANDLORD: Sand Creek Business Center II, L.P. 194 Francisco Lane, Ste. 202 Fremont, CA 94539 2. TENANT: County of Contra Costa C/o Contra Costa County Lease Management 1220 Morello Avenue, Suite 200 Martinez, CA 94553-4711 Attn: Deputy Director 3. PREMISES/RENTABLE Approximately 10,052 rentable square feet of space AREA: designated as Units A through E in Building#4 as depicted on Exhibit A-1 attached hereto and incorporated herein 4. ADDRESS OF PREMISES: 171 Sand Creek Road, Building 4, Unit A, Brentwood, CA 94513 5. USES PERMITTED: Health services clinic and related office uses 6. TERM: Lease Term: One Hundred Twenty(120) months Lease Commencement Date: January 15, 2005, or upon the earlier substantial completion of the Tenant Improvements (defined in Exhibit F) 7. BASE RENT: �r' r Monthly Rent Schedule: Months 1 through 12: $16,586.00 Base Rent is increased annually as provided in Paragraph 4.1 Tenant shall also pay all Additional Rent(defined in Paragraph 4.2) associated with the Premises 8. SECURITY DEPOSIT: Not applicable The undersigned Landlord and Tenant agree to the provisions of this Lease, including the attached Lease Agreement and the Exhibits thereto. Dated as of October 5, 2004 Landlord: Sand Creek Business Center 11, L.P. By: Sand Creek Business Center anagem t, lnc., its General er By: Arth orenzini, J ., resident t Tenant: County of Contra Costa, a political subdivision of the State of California By: - '-&kAuw� Director of General Services APPROVED AS TO FORM: Silvana B. chesi, Co ty Counsel By: t r.w....._------ Deputy < LEASE AGREEMENT THIS LEASE, dated this 5th day of October 2004 for reference purposes only, is made and entered into by and between Sand Creek Business Center II, L.P. ("Landlord") and County of Contra Costa, a political subdivision of the State of California("Tenant"). Landlord and Tenant agree to the terms, covenants and conditions of this Lease, as follows: 1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord those certain premises (the "Premises") described on the Lease Summary. The term "Building" as used herein shall mean Building 44 in the Sand Creek Business Center located at 171 Sand Creek Road, Brentwood, California, and containing approximately fourteen thousand one hundred twelve (14,112) rentable square feet. The term "Property" shall mean and include all of the real property described on Exhibit A-2 attached hereto and incorporated herein, including the Building, improvements, and fixtures now or hereafter situated thereon. The term"Common Area" shall mean and include that portion of the real property located within the Sand Creek Business Center as described on Exhibit A-3 attached hereto and incorporated herein. The term "Center" shall mean and include all of the real property located within the Sand Creek Business Center including the Property and the Common Area as shown on Exhibit A-4. 2. USE. 2.1 Permitted Uses. Tenant shall use the Premises solely for the purpose stated on the Lease Summary and for no other purpose without Landlord's prior written consent which consent may be granted or withheld in Landlord' sole and absolute discretion. 2.2 Compliance with Law and Private Restrictions. Tenant shall, at Tenant's sole cost and expense, promptly comply with all laws, ordinances, codes, rules, orders, directives and regulations of governmental authority (collectively, "Governmental Regulations") regulating the use or occupancy of the Premises, including but not limited to any of Tenant's Alterations (defined in Paragraph 9) to the Premises, as well as any private restrictions affecting the Property. Tenant acknowledges and agrees that (i) Tenant has received and reviewed a copy of that certain Declaration of Covenants, Conditions and Restrictions of Sand Creek Business Center attached hereto as Exhibit B (the "CC&Rs") which CC&Rs were recorded on August 8, 2002 as Instrument No. 2002-277261 in the Official Records of Contra Costa County against the Center and (ii) all of the terms and conditions of the CC&Rs or any amendments thereto made in accordance with the provisions thereof shall be binding on Tenant and Tenant shall comply therewith in its use and occupancy of the Premises and the Common Area, including but not limited to the use restrictions set forth in Article IV and the assessment provisions set forth in Article VI of the CC&Rs. 2.3 Restriction on Use. Tenant shall not use or permit the use of the Premises or the Common Area in any manner that will tend to create waste thereon or constitute a nuisance to any other occupant or user of the Property or the Center or any property adjacent thereto or do or 1 keep anything that will cause cancellation of or an increase in rates of any insurance covering the Building. Tenant shall not use any apparatus, machinery or other equipment in or about the Premises that may cause substantial noise or vibration or overload existing electrical systems, and shall not place any loads upon the floors, walls, or ceilings of the Premises which may jeopardize the structural integrity of the Building or any part thereof. Tenant shall not store or permit the storage of any items outside of the Building. Tenant shall not make any penetrations of the roof or exterior of the Building or attach any antennas or equipment thereon without the prior written approval of Landlord which will not be unreasonably withheld. Any penetrations of the roof allowed by Landlord shall be properly flashed and caulked and shall be removed and the roof membrane restored upon expiration of the Lease term. No materials or articles of any nature shall be stored outside the Premises, unless in compliance with all applicable Governmental Regulations and private restrictions. 2.4 Hazardous Materials. A. As used herein, the term "Hazardous Material" - shall mean any substance: (i)the presence of which requires investigation or remediation under any federal, state or local statute, regulation, ordinance, order, action, policy or common law; (ii) which is or becomes defined as a "hazardous waste," "hazardous substance," pollutant or contaminant under any federal, state or local statute, regulation, rule or ordinance or amendments thereto including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) and/or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); (iii) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority, department, commission, board, agency or instrumentality of the United States, the State of California or any political subdivision thereof; (iv)the presence of which on the Premises poses or threatens to pose a known material risk to the health or safety of persons on or about the Premises; (v)without limitation which contains gasoline, diesel fuel or other petroleum hydrocarbons; (vi)without limitation which contains polychlorinated biphenyls (PCBs), asbestos or urea formaldehyde foam insulation; or(vii)without limitation radon gas. B. Tenant shall not use, analyze, store, dispose, handle, transport, release, discharge or generate any Hazardous Materials in, on, to, under, from or about the Premises or Building, except that Tenant shall be entitled to (i) use normal quantities of janitorial and office products for their intended use and in compliance with applicable Governmental Regulations and (ii) use normal types and quantities of products and materials typical to the operation of a health clinic and to perform procedures typical to a health clinic that may result in the generation of substances deemed to be Hazardous Materials provided that said use, storage and any related disposal is conducted in compliance with applicable Governmental Regulations, C. Tenant shall not cause or permit any Hazardous Materials used by Tenant to be discharged into the plumbing or sewage system of the Building or onto the land underlying the Building or anywhere on the Property or the Center. Tenant shall, at its sole cost, comply with any and all Governmental Regulations respecting the handling, use, storage and disposal of Hazardous Materials used by Tenant. Tenant shall, at its sole cost, make any and all improvements to the Premises necessary to assure legal and safe use of Tenant's Hazardous Materials. All such improvements shall be subject to Landlord's approval in accordance with 2 Paragraph 9 hereof. Tenant shall remove all Hazardous Materials used by Tenant or brought onto the Premises or the Property by Tenant prior to the expiration of the Lease term or sooner termination thereof. D. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all claims, ,judgments, liability, damage, decrees, liens, demands, taxes, penalties, fines, expenses, costs (including but not limited to those costs associated with investigation, removal and remedial activities as may be sought, initiated or required in connection with any local, state or federal governmental or private party demands or claims), fees (including without limitation attorneys fees), obligations, orders, liabilities or losses (including without limitation, diminution in the value of the Property, damages for the loss or restriction on the use, marketability or any other amenity of the Property) (all of the foregoing collectively referred to hereinafter as "Environmental Claims"), which arise during or after the Lease term as a result of Tenant's use, storage, disposal, transportation, release, discharge or generation of any Hazardous Materials at, in, onto or under the Property, or any contamination of the Property or the Center caused by Tenant. The foregoing indemnity ("Tenant's Environmental Indemnity") shall survive the expiration or earlier termination of this Lease. Tenant agrees to defend all Environmental Claims on behalf of Landlord with counsel reasonably acceptable to Landlord. In no event shall Tenant be responsible for any costs or expenses related to Hazardous Materials or the remediation thereof if the Hazardous Materials were brought onto the Property by a prior tenant or owner of the Property or by other tenants of the Center. E. Without limiting the foregoing, if there is a release or discharge of any Hazardous Materials at, in, onto or under the Property or the Center or a contamination of the Property or the Center that is covered by Tenant's Environmental Indemnity, Tenant shall promptly take all action, at its sole cost, as is necessary to return the Property to the condition required by all applicable laws and regulations, provided that Landlord's written approval of such action shall first be obtained and Landlord's approval of any remediation plan shall not be unreasonably withheld. F. Landlord shall have the right to enter the Premises and Property and perform such environmental investigations, remediation and assessments of the Premises as Landlord shall in Landlord's sole discretion deem advisable. Landlord shall provide Tenant with at least two (2) business days' notice prior to entering the Premises hereunder, except in the case of emergency. Landlord shall use reasonable efforts to minimize interference with Tenant's business, but shall not be liable for any interference caused thereby. The cost of any such investigation, remediation or assessment shall be reimbursed by Tenant to Landlord within thirty (30) days of receipt of written invoices therefor only if any contamination found has been caused, permitted or contributed to by Tenant. G. If at any time Tenant shall become aware of or has reasonable cause to believe that any Hazardous Materials have come to be located on or beneath the Premises or Property, Tenant shall, immediately upon discovering such presence or suspected presence of Hazardous Materials, give written notice of such condition to Landlord. In addition, Tenant shall immediately notify Landlord in writing if Tenant becomes aware of (1) any enforcement, cleanup, removal or other governmental regulatory action instituted, completed, or threatened 3 _.. . relating to any Hazardous Materials on or about the Property, (2) any claim made or threatened by any person against Tenant, Landlord or the Property relating to damage, contribution, cost recovery, compensation, loss or injury relating from or claimed to result from any Hazardous Materials that have come to be located on or about the Property, and (4) any reports made to any local, state or federal environmental agency arising out of or in connection with any Hazardous Materials on or about the Property, including any complaints, notices, warnings or violations in connection therewith. H. Any default under this Paragraph 2.4 shall constitute a material default enabling Landlord to exercise any of the remedies set forth in this Lease. 2.5 Use of Common Area. As an appurtenant right to Tenant's right to use and occupy the Leased Premises, Tenant shall have the non-exclusive right to use the Common Area in conjunction with its use of the Premises solely for the purposes for which it is designated and intended and for no other purposes whatsoever. Tenant's right to so use the Common Area shall be subject to the limitations on such use as set forth in this Lease and any rules and regulations established by Landlord pursuant to Paragraph 2.8 below, and shall terminate concurrently with any termination of this Lease. 2.6 Noise and Emissions. All noise generated by Tenant in its use of the Premises shall be confined or muffled so that it does not interfere with the businesses of or annoy the occupants and/or users of adjacent properties. All dust, fumes, odors and other emissions generated by Tenant's use of the Premises shall be sufficiently dissipated in accordance with sound environmental practice and exhausted from the Premises in such a manner so as not to interfere with the businesses of or annoy the occupants and/or users of adjacent properties, or cause any damage to the Building or the Center or the property of adjacent property owners. 2.7 Trash Disposal. Tenant shall dispose of its trash and garbage in the trash bins or other disposal facilities within the trash enclosure areas provided by the Owner's Association (defined below in Paragraph 5) or by Landlord outside the Building in the Common Area. All such trash, garbage and waste temporarily stored in such areas shall be stored in such a manner so that it is not visible from outside of such areas, and Tenant, at its sole expense, shall cause such trash, garbage and waste to be regularly removed from the Property and the Center except to the extent such services are provided by Landlord or the Owner's Association and reimbursed as part of Operating Expenses. Tenant shall keep the Premises and the Common Area in a clean, safe and neat condition free and clear of all of Tenant's trash, garbage, waste and/or boxes, pallets and containers containing same at all times. 2.8 Rules and Regulations. Landlord shall have the right from time to time to establish reasonable rules and regulations and/or amendments or additions thereto respecting the use of the Premises and the Common Area for the care and orderly management thereof. Upon delivery to Tenant of a copy of such rules and regulations or any amendments or additions thereto, Tenant shall comply with such rules and regulations. A violation by Tenant of any of such rules and regulations shall constitute a default by Tenant under this Lease. If there is a conflict between the rules and regulations and any of the provisions of this Lease, the provisions of this Lease shall prevail. A copy of the initial Rules and Regulations, if applicable, is attached hereto and incorporated herein Exhibit C. 2.9 Reservations. Landlord reserves the right from time to time to grant, without the consent or joinder of Tenant, such easements, rights of way and dedications that Landlord deems necessary, and to cause the recordation of parcel maps and further restrictions against the Property, the Common Area and the Center, so long as such easements, rights of way, dedications or other from of grants or restrictions do not unreasonably interfere with Tenant's use of the Premises. Tenant agrees to execute any documents reasonably requested by Landlord to effectuate any such easement rights, dedications, maps or restrictions. 3. TERM 3.1 Commencement Date. Subject to the terms of Paragraph 8.1 below and to the terms of Exhibit F, the term of this Lease shall commence on the Lease Commencement Date as provided in the Lease Summary. If the Commencement Date is other than the first day of a calendar month, the Lease term shall be extended by the number of days remaining in the month during which the Commencement Date occurs, and Base Rent for such period shall be a prorated portion of the same Base Rent set forth in the Lease Summary for the first calendar month of the Lease term. 3.2 Proration. Tenant's obligation to pay rent for any partial month during the term shall be prorated on the basis of a thirty-(30) day month. 3.3 Renewal Term. Subject to the terms and conditions of Exhibit D attached hereto and incorporated herein, Tenant shall be entitled to extend the term hereof for two (2) successive five (5) year periods. 4. RENT. 4.1 Base Rent. Tenant shall pay monthly base rent ("Base Rent") in the amounts set forth on the Lease Summary or described herein to Landlord without deduction, offset, prior notice, or demand, in advance on the first day of each calendar month of the Lease term and in lawful money of the United States. Upon the execution hereof, Tenant shall pay Base Rent for the first full month of the Lease term in the amount of Sixteen Thousand Five Hundred Eighty- Six Dollars ($16,586). Commencing on the first anniversary of the Lease Commencement Date, and on each anniversary of the Lease Commencement Date thereafter (each a "Rental Adjustment Date") through and including the fifth (5th) such anniversary, the Base Rent shall be increased by three percent (3%) of the amount payable in the year immediately preceding such Rental Adjustment Date. Commencing on the sixth (6th) anniversary of the Lease Commencement Date, and on each Rental Adjustment Date thereafter throughout the initial term and the Renewal Terms, if exercised, the Base Rent shall be increased by four percent (4%) of the amount payable in the year immediately preceding such Rental Adjustment Date. 5 4.2 Additional Rent. A. Tenant shall pay to Landlord, to the extent not paid by Tenant directly, and in addition to Base Rent during the Lease terra, additional rent ("Additional Rent") equal to the sum of the following: 1. Tenant's Percentage Share (defined hereinbelow) of all Operating Expenses relating to the Property as set forth in Paragraph 7; 2. Tenant's Percentage Share of all Real Property Taxes relating to the Property as set forth in Paragraph 11; 3. All costs and expenses incurred by Landlord in maintaining and repairing the Premises as required by Paragraph 6; and 4. All other charges, costs and expenses which Tenant is required to pay hereunder and all damages, costs and expenses which Landlord may incur by reason of default of Tenant or failure on Tenant's part to comply with the terms of this Lease, including attorney's fees and court costs. As used herein, "Tenant's Percentage Share" shall mean seventy-one percent (71%), determined by dividing the rentable square footage of the Premises by the rentable square footage of the Building. B. In the event of nonpayment by Tenant of Additional Rent, Landlord shall have all the rights and remedies with respect thereto as Landlord has for nonpayment of Base Rent. Except as provided below, Additional Rent due hereunder shall be paid to Landlord within thirty (30) days of written notice by Landlord. At Landlord's option, Tenant shall pay to Landlord monthly, in advance, on the first day of each calendar month an amount estimated by Landlord to be Landlord's approximately monthly expenditure for such items included in Additional Rent (the "Estimated Monthly Expense"). Actual expenses incurred by Landlord shall be reconciled against the Estimated Monthly Expense by Landlord at the end of each calendar year. Within one hundred twenty (120) days following each calendar year, Landlord shall furnish Tenant a statement of the actual expenses incurred by Landlord for such period. If Tenant's total payments of the Estimated Monthly Expense for such period are less than the amount of actual expenses incurred by Landlord, Tenant shall pay to Landlord the amount of such deficiency within thirty (30) days after receipt of such statement, If Tenant's total payments of the Estimated Monthly Expense exceed actual expenses incurred by Landlord for such period, Landlord shall apply the excess amount against the next payments of Base Rent and Additional Rent due hereunder. The Estimated Monthly Expense may be adjusted by Landlord upon thirty (30) days' written notice to Tenant, The respective obligations of Landlord and Tenant under this paragraph shall survive the expiration or earlier termination of the term of this Lease. 6 8" C. Provided that Tenant exercises its herein described audit right by delivery of written notice to Landlord within sixty(60) days after receiving Landlord's year end statement of Additional Rent, Tenant shall have the right, at its sole cost and expense and at such time and place as Landlord may reasonably designate, to inspect and audit Landlord's books and records related to the operation and maintenance of the Building for the prior year for the purpose of verifying Landlord's year-end statement of Additional Rent payable by Tenant. 4.3 Late Charge and Interest. Tenant hereby acknowledges that late payment by Tenant to Landlord of Base Rent, Additional Rent or other sums due hereunder (collectively, "Rent") will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Landlord by the terms of any mortgage or deed of trust covering the Building or Property. Accordingly, if any installment of Rent due from Tenant shall not be received by Landlord within ten (10) days after the due date and provided that Landlord has provided Tenant with written notice of that Rent is delinquent, then Tenant shall pay to Landlord a late charge equal to ten percent (10%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder. In the event any Rent due hereunder remains delinquent for a period in excess of ten (10) days after its due date, Tenant shall pay to Landlord, in addition to the late payment, interest from and after said due date equal to the lower of five percent(5%) per annum plus the then discount rate of the Federal Reserve Bank of San Francisco, or the highest rate then allowed by law (the "Interest Rate"), from the date due until paid in full. Payment of such interest shall not excuse or cure any default by Tenant. 4.4 Place of Payment. All payments of Rent shall be paid to Landlord at its office as shown on the Lease Summary or to such other person or to such other place as Landlord may from time to time designate in writing. 4.5 Security Deposit. [Intentionally Deleted] 5, PARKING. Tenant shall have the right to use forty (40) unassigned parking spaces within the parking area designated for the Building as shown on Exhibit E attached hereto and incorporated herein (the "Parking Area") provided that only Tenant's employees' and visitors' vehicles shall park on the Parking Area on a daily basis, and no recreational vehicles, or modular units shall be stored on the Parking Area. Tenant shall not permit any overnight parking or storage of vehicles or other property within the Parking Area by Tenant's employees, agents, contractors or invitees. Trucks may enter the Common Area for purposes of loading and unloading only, but may not be stored on the Property, in the Parking Area or within the Common Area. Tenant, its employees and visitors shall not use parking areas within the Common Area except for the Parking Area and Tenant acknowledges that the property owners' association for the Center (the "Owners' Association") is entitled to enforce all parking and common area restrictions set forth in the CC&Rs or as otherwise enacted or adopted by the Owner's Association, including the towing of any vehicles in violation of the Owners' Association's parking rules. 7 b. MAINTENANCE AND REPAIRS. 6.1 Tenant's Obligations. Tenant shall promptly notify Landlord of the need for any repairs to the Premises or the Building so that Landlord can mare the needed repairs as required by Paragraph 6.2. Tenant shall be responsible for repairing any damage to the Premises caused or permitted by Tenant, its agents, employees or contractors. Tenant hereby waives the benefit of any statute now or hereinafter in effect which would otherwise afford Tenant the right to make repairs at Landlord's expense or to terminate this Lease because of Landlord's failure to keep the Premises in good condition, order and repair. Tenant specifically waives all rights it may have under Sections 1932(1), 1941, and 1942 of the California Civil Code, and any similar or successor statute or law. 6.2 Landlord's Obligations. Landlord shall maintain in good condition, order and repair all portions of the Premises and the Building including its exterior portions and landscaping. All costs and expenses incurred by Landlord in maintaining and repairing any portion of the Premises, including but not limited to all portions of the Building's heating, ventilation and air-conditioning system or other building systems serving the Premises, all plumbing pipes, components and fixtures, electrical and lighting fixtures, glass, doors, walls, wall and floor coverings and other components of the Premises shall be paid to Landlord by Tenant pursuant to Paragraph 4.2.A.3 above. All costs and expenses related to the repair and maintenance of the Building, including but not limited to the foundation, floor slabs, roof, structural components and exterior side of the exterior walls of the Building and its exterior portions including landscaping (including replacements and reserves set aside for maintenance and/or replacements) shall be included in Operating Expenses hereunder and paid to Landlord pursuant to Paragraph 4.2.A.1 above. Landlord shall have no obligation to make repairs under this paragraph until a reasonable time after Landlord's receipt of written notice from Tenant of the need for such repairs. Tenant shall not be entitled to any abatement of Rent prior to or during any repairs by Landlord hereunder. 7. OPERATING EXPENSES. Tenant shall pay for all Operating Expenses (as hereinafter defined) as may be paid or incurred (or, in the case of reasonable reserves for the replacement of Building components or components of the Center that Landlord is responsible to maintain ("Reserves"), as may be set aside or allocated) by Landlord during the term of this Lease as Additional Rent in accordance with Paragraph 4.2 hereof. The term "Operating Expenses" shall mean all costs and expenses of every kind and nature paid or incurred (or allocated in the case of Reserves) by Landlord in protecting, operating, maintaining, managing, repairing and preserving the Property and all parts thereof, including without limitation: A. All costs or expenses paid or incurred (or allocated in the case of Reserves) by Landlord in maintaining, managing (including reasonable management fees), operating and repairing (including replacement obligations and reserves for maintenance, repairs and replacements) the Building as required by Paragraph 6.2 or to the extent Tenant fails to do so as required by Paragraph 6.1. B. The cost of insurance carried by Landlord and deductible amounts thereunder in accordance with Paragraphs 12.4 and 12.5 hereof. 8 ,.. C. The cost of all utilities, including but not limited to trash disposal service, furnished to the Premises if not paid by Tenant directly. D. The costs and expenses attributable to the Property of membership in the Owners' Association and costs incurred in complying with all private restrictions affecting the Property or directives or assessments upon the Property by the Owner's Association, including but not limited to all costs and expenses of every kind attributable to the Property as assessed or imposed by the Owners' Association for the maintenance, repair and replacement of the landscaping, parking areas and other amenities in the Common Area, including such amounts as may be imposed or assessed for reserves for future replacements and repairs. To the extent such expenses, charges and assessments of the Owner's Association are not prorated by the Owner's Association among the separate properties within the Center, Landlord shall allocate such amounts in its reasonable discretion. Capital Expenditures (as defined below) incurred by Landlord in connection with its maintenance or repair of the Building or the Property shall be amortized without interest over the useful life thereof as reasonably determined by Landlord rather than treated as expense items and only such amortized amounts shall be included in Operating Expenses. For purposes of this paragraph, the term "Capital Expenditure" shall mean any cost or expense item paid by Landlord for the maintenance or repair of the Building and/or the Property that is properly treated as a capital item rather than an expense under generally accepted accounting principles as reasonably applied by Landlord. To the extent that Reserves have been allocated for replacement of Building components, those Reserves will be applied toward the replacement costs for the Building components to which they apply to reduce any the amount of any Capital Expenditures hereunder for said components, 8. CONSTRUCTION OF PREMISES; ACCEPTANCE AND SURRENDER OF PREMISES. 8.1 Tenant Improvements. Landlord has completed construction of the Building and all building shell improvements therein. Pursuant to the terms of Exhibit F attached hereto and incorporated herein by this reference, Landlord shall, at Tenant's cost and expense (except with regard to the Improvement Allowance described below), construct upon the Property the Tenant Improvements; provided, however, that instances of Tenant Delay (as defined in Exhibit F) in the completion of the Tenant Improvements shall advance the Commencement Date as described in Exhibit F. Tenant acknowledges that it has (i) inspected and approved of the condition of the Building and the building shell improvements constructed therein by Landlord, (ii) carefully reviewed the plans and specifications for the Tenant Improvements described in Exhibit F hereto and (iii) approved of said plans and specifications as being complete and sufficient for Tenant's use and occupancy of the Premises. Upon the substantial completion of the Tenant Improvements, Landlord and Tenant shall conduct a walk through of the Premises to determine whether there are any Punch-List items (as defined in Exhibit F) regarding the Tenant Improvements to be completed or corrected by Landlord, and Landlord will cause its contractor to complete or repair the Punch-List items as soon as possible and in any event within thirty (30) days following said walk through inspection. Landlord shall provide to Tenant a construction allowance not to exceed Five Hundred Two Thousand Six Hundred Dollars ($502,600) (equal to Fifty Dollars ($50) per rentable square foot in the Premises) (the "Improvement Allowance") to 9 s.� _. _.. . . __. be paid to the Contractor (defined in Exhibit F) and applied toward the construction costs of the Tenant Improvements as provided in Exhibit F. 8.2 Acceptance and Surrender. By accepting possession of the Premises, Tenant shall be deemed to have accepted (i) the Premises as being in good and sanitary order, condition and repair and (ii) the Building, the shell improvements and the Tenant Improvements in their then present condition and without representation or warranty by Landlord as to their condition or as to the use or occupancy which may be made thereof, except for the obligation to complete any Punch-List items pertaining to the Tenant Improvements. Tenant shall notify Landlord of any such Punch-List items at the completion of the walk through inspection described in Paragraph 8.1. Landlord hereby assigns to Tenant all warranties and guarantees to which Landlord is now or hereafter entitled in connection with the construction of the Tenant Improvements within the Building. Landlord shall not be responsible for making or modifying any improvements to the Premises except for the Tenant Improvements. Tenant agrees on the last day of the Lease term, or on the sooner termination of this Lease, to surrender the Premises promptly to Landlord in good condition and repair (damages by acts of Cod, fire, normal wear and tear excepted). All Alterations (defined in Paragraph 9.1) which may have been made in, to, or on the Premises by Tenant (except movable trade fixtures installed at the expense of Tenant) and the Tenant Improvements shall be surrendered in good condition and repair, except that Tenant shall ascertain from Landlord within thirty (30) days before the end of the Lease term whether Landlord desires to have Tenant remove any of its Alterations and restore the Premises or any part or parts thereof to their condition and configuration existing prior to the installation or making of said Alterations, and if Landlord shall so desire, then Tenant shall remove the Alterations so designated by Landlord and restore the Premises or such part or parts thereof to the condition designated by Landlord, at Tenant's sole cost. Tenant shall not be required to remove the initial Tenant Improvements from the Premises at the end of the term of this Lease, but Tenant shall be required to remove all wiring, cabling and conduits installed by Tenant and to repair any damage caused by such removal. On or before the end of the Lease term or sooner termination of this Lease, Tenant shall remove all of Tenant's personal property and trade fixtures from the Premises, and all property not so removed shall be deemed abandoned by Tenant and title to same shall thereupon pass to Landlord without compensation to Tenant. Upon termination of this Lease, Landlord may, at Tenant's sole cost, remove all moveable furniture and equipment so abandoned by Tenant as well as any of Tenant's alterations or additions and the Tenant Improvements which Tenant has failed to remove as required hereby, repair any damage caused by such removal and store or dispose of such property as Landlord deems appropriate in its sole and absolute discretion. 9. ALTERATIONS. 9.1 Landlord's Consent. Tenant shall not make any alterations, improvements, additions, or utility installations or installations of cabling, wiring or conduits (collectively, the "Alterations") in, on or about the Premises without Landlord's prior written consent, which shall not be unreasonably withheld or delayed, except for non-structural alterations to the interior of the Premises which do not exceed two thousand dollars ($2,000) in cost per project. As used herein, the term "utility installation" means power panels, wiring, florescent fixtures, space heaters, conduits, air conditioning and plumbing. 10 �.� 9.2 Plans and Permits. Any alteration that Tenant desires to make in or about the Premises and which requires the consent of Landlord shall be presented to Landlord in written form for Landlord's approval, with proposed detailed plans and specifications therefor, prepared at Tenant's sole cost. Any consent by Landlord thereto shall be deemed conditioned upon Tenant's acquisition of all permits required to make such Alterations from all appropriate governmental agencies, the furnishing of copies thereof to Landlord prior to commencement of the work, and the compliance by Tenant with all conditions of said permits in a prompt and expeditious manner, all at Tenant's sole cost. 9.3 Construction Work Bone by Tenant. All construction work required or permitted to be done by Tenant shall be performed by a licensed contractor approved by Landlord and in a prompt, diligent, and good and workmanlike manner. All such construction work shall conform in quality and design with the Premises existing as of the Commencement Date and shall not diminish the value of the Building or the Property. All such construction work shall be performed in compliance with all applicable governmental Regulations and private restrictions. Tenant's contractor shall maintain a policy of commercial general liability insurance covering its actions and those of its agents, employees and contractors in connection with the Alterations and reasonably acceptable in form to Landlord in an amount of not less than Two Million Dollars ($2,000,000) combined single limit and Landlord shall be designated an additional named insured on said policy. In addition, Landlord may, in its sole and absolute discretion, require Tenant to obtain a lien and completion bond or some alternate form of security satisfactory to Landlord in an amount sufficient to ensure the lien-free completion of such Alterations and naming Landlord as a co-obligee. Upon completion of any Alterations, Tenant agrees to cause a Notice of Completion to be recorded in the office of the Recorder of Contra Costa County in accordance with Section 3093 of the Civil Code of the State of California or any successor statute, and Tenant shall deliver to Landlord a reproducible copy of the "as built"drawings of the Alterations. 9.4 Roof Repairs. Any installation of air conditioning equipment and duct work or antennas on the roof permitted by Landlord and requiring penetration of the roof shall be properly flashed and caulked. Any equipment placed by Tenant on the roof shall be properly elevated and supported so as not to create vibration or inhibit drainage or repair and maintenance of the roof. Landlord shall be entitled to require Tenant to use its designated contractor for any roof work or penetrations proposed by Tenant. 9.5 Title to Alterations. Unless Landlord requires the removal thereof as set forth in this Lease, any Alterations which may be made to the Premises by Tenant shall, upon expiration or termination of this Lease, become the property of Landlord and shall remain upon and be surrendered with the Premises at the expiration or sooner termination of this Lease. Tenant's furnishings, machinery and equipment, except that which is affixed to the Premises so that it cannot be removed without material damage to the Premises, shall remain the property of Tenant and may be removed by Tenant, and Tenant shall, at Tenant's sole cost, immediately after removal repair any damage to the Premises caused thereby. 9.6 notice. Tenant shall give Landlord notice of the date of commencement of any work in the Premises not less than ten (10) days prior thereto, and Landlord shall have the right II Q. to post notices of non-responsibility or similar notices in or on the Premises in connection therewith. 10. UTILITIES AND SERVICES, Tenant shall pay all charges for water, gas, electricity, telephone, refuse pickup, janitorial services, and all other utilities and services supplied or furnished to the Premises during the term of this Lease, together with any taxes thereon, directly to the charging authority. To the extent that said utilities and services are not supplied directly to Tenant by the provider thereof or separately metered, Landlord shall reasonably prorate and determine Tenant's share of the costs thereof. In no event shall Landlord be liable to Tenant for any failure or interruption in utility or service unless caused by the willful misconduct of Landlord. No failure or interruption of any such utilities or services shall entitle Tenant to terminate this Lease or to withhold rent or other sums due hereunder. Landlord shall not be responsible for providing security guards or other security protection for any portion of the Premises or the Center, and Tenant shall at its own expense provide or obtain such security services as Tenant shall desire to ensure the safety of the Premises. Landlord shall use reasonable efforts to restrict access to telephone, power and utility lines and conduits into the Premises to authorized service personnel only, but Landlord shall not be liable for any third- party acts in violation of the foregoing. 11. TAXES. 11.1 Real Property Taxes. Tenant shall pay to Landlord all Real Property Taxes (as hereinafter defined) which become due during the Lease term, as Additional Rent in accordance with Paragraph 4.2 hereof. The term "Real Property Taxes" as used herein shall mean (1) all taxes, assessments, bonds, levies, and other charges of any kind or nature whatsoever, general and special, foreseen and unforeseen (including all installments of principal and interest required to pay any general or special assessments for public improvements and any increases resulting from reassessments caused by any change in ownership of the Property) now or hereafter imposed by any governmental or quasi-governmental authority or special or community facilities district having the direct or indirect power to tax or levy assessments, which are levied or assessed against, or with respect to (a) the value, occupancy, ownership or use of, all or any portion of the Property (as now constructed or as may at any time hereafter be constructed, altered, or otherwise changed) or Landlord's interest therein; (b) any improvements located on the Property (regardless of ownership); (c)the fixtures, equipment and other property of Landlord, real or personal, that are an integral part of the Property; (d)the gross receipts, income and rentals from the Property, or (e)the use of public utilities or energy in the Building; (2) all charges, levies or fees in the nature of a tax or assessment imposed by reason of environmental regulation or other governmental control of the Property; (3) new excise, transaction, sales, privilege or other taxes now or hereafter imposed upon Landlord as a result of this Lease; and (4) all costs and fees (including attorneys' fees) incurred by Landlord in successfully contesting any Real Property Taxes. If at any time during the Lease term the taxation or assessment of the Property prevailing as of the Commencement Date shall be altered so that in lieu of or in addition to any Real Property Taxes described above there shall be levied, assessed or imposed (whether by reason of a change in the method of taxation or assessment, creation of a new tax or charge, or any other cause) an alternate, substitute or additional tax or charge (a) on the value, use or occupancy of the Property or Landlord's interest therein; (b) on or measured by the gross receipts, income or rentals from the Property; (c) on Landlord's business of leasing the Property; 12 or (d)computed in any manner with respect to the operation of the Property,then any such tax or charge, however designated, shall be included within the meaning of the term "Real Property Taxes". Notwithstanding the foregoing, the term "Real Property Taxes" shall not include estate, inheritance, gift or franchise taxes of Landlord, the federal or state net income tax imposed on Landlord's income from all sources, or any penalties due in the event Landlord fails to make payment of the real property taxes on time if Tenant has made timely payment of such taxes to Landlord. 11.2 Taxes on Tenant's Property. Tenant shall pay at least ten (10) days prior to delinquency all taxes, license fees and public charges assessed or levied against all equipment, personal property or trade fixtures placed by Tenant in or about the Premises. If any such taxes, fees or charges are levied against Landlord or the Property or if the assessed value of the Premises is increased by the inclusion therein of the value placed upon such equipment, personal property or trade fixtures of Tenant and if Landlord pays the taxes, fees or charges based on such increased assessment, which Landlord shall have the right to do, Tenant shall upon demand, repay to Landlord the taxes, fees or charges so levied against Landlord, or the portion of such taxes resulting from such increase in the assessment. 12. INSURANCE. 12.1 Tenant's Liability and Property Coverage. Tenant, a political subdivision of the State of California, is self-insured and has established reserves for property damage and liability exposure in accordance with generally accepted principals of self-insurance, to cover the losses which would otherwise be covered by commercial policies. 12.2 [Intentionally Omitted]. 12.3 [Intentionally Omitted]. 12.4 Landlord's Liability Insurance. Landlord may in its discretion maintain a policy or policies of commercial general liability insurance insuring Landlord (and such other entities as may be designated by Landlord) against liability for personal injury, bodily injury or death and damage to property occurring or resulting from an occurrence in, on, or about the Property with such coverage as Landlord may from time to time determine is reasonably necessary for its protection. 12.5 Property Insurance. Landlord shall obtain and keep in force during the term of this Lease a policy or policies of insurance for the benefit of Landlord covering loss or damage to the Building, and the Property but excluding coverage of merchandise, fixtures, equipment and leasehold improvements of Tenant, which are not considered part of the real estate for insurance purposes, in the amount of the full replacement value thereof, providing protection against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief, special extended perils (all risk), including (at Landlord's option) flood and earthquake, boiler and machinery coverage (if applicable) and an inflation endorsement. In addition, Landlord shall obtain and keep in force, during the term of this Lease, a policy of rental loss insurance covering a period of one year, commencing on the date of loss, with proceeds payable to Landlord, which insurance shall also cover all Real Property Taxes, Operating 13 .r.s Expenses, and other sums payable by Tenant to Landlord hereunder for said period. The insurance coverage shall include sprinkler leakage insurance if the Building contains fire sprinklers. All proceeds under such policies of insurance shall be payable to Landlord, and Tenant shall have no interest in or right to such proceeds. 12.6 Payment. Tenant shall pay to Landlord during the term hereof all of the premiums and deductibles for any insurance obtained by Landlord pursuant to Paragraphs 12.4 and 12.5. Notwithstanding the foregoing, Landlord may obtain liability insurance and property insurance for the Building separately, or together with other Building and improvements under blanket policies of insurance. In such case Tenant shall be liable for only such portion of the premiums for such blanket policies as are reasonably allocable to the Premises, as reasonably determined by the insurer or Landlord. 12.7 Waiver of Subrogation. Tenant and Landlord each hereby waives any and all rights of recovery against the other, and against the officers, employees, agents and representatives of the other, for loss of or damage to the property of the waiving party or the property of others under its control, to the extent such loss or damage is covered by proceeds received under any insurance policy carried by Landlord or Tenant and in force at the time of such loss or damage. Tenant and Landlord shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Lease. 12.8 No Limitation of Liability. Landlord makes no representation that the limits of liability specified to be carried by Tenant or Landlord under the terms of this Lease are adequate to protect any party. If Tenant believes that the insurance coverage required under this Lease is insufficient to adequately protect Tenant, Tenant shall provide, at its own expense, such additional insurance as Tenant deems adequate. 13. WAIVER AND INDEMNIFICATION. Landlord shall not be liable to Tenant and Tenant hereby waives all claims against Landlord for any injury to or death of any person or damage to or destruction of property in or about the Premises, the Building or the Center or to Tenant's business from any cause whatsoever, including without limitation, from theft, gas, fire, steam, oil, electricity or leakage of any character from the roof, walls, basement or other portion of the Premises, the Building or the Property, from rain, or defects in or breakage of pipes, sprinklers, plumbing, HVAC or other sources, excluding, however, the willful misconduct of Landlord, its agents, servants, employees, invitees, or contractors. Tenant shall indemnify, defend and hold harmless Landlord, its agents, lenders, partners and officers from and against any and all claims, judgments, damage, demands, losses, expenses, costs or liability arising in connection with injury to person or property from Tenant's use of the Premises, or from the conduct of Tenant's business or from any activity, work or things done, permitted or suffered by Tenant in or about the Premises or the Property by Tenant or by any of Tenant's agents, servants, employees, invitees or contractors, or from any breach or default by Tenant in the performance of any obligation on the part of Tenant to be performed under the terms of this Lease (all of the foregoing collectively referred to hereinafter as "General Indemnity Claims"), excluding, however, the active negligence or willful misconduct of Landlord, its agents, servants, employees, invitees, or contractors. Tenant agrees to defend all General Indemnity Claims on behalf of Landlord, with counsel reasonably acceptable to Landlord. The obligations of Tenant 14 contained in this Paragraph shall survive the expiration of the Lease term, or sooner termination thereof. Landlord shall indemnify, defend and hold harmless Tenant, its agents, lenders, and representatives from and against any and all claims, judgments, damage, demands, losses, expenses, costs or liability arising in connection with injury to person or property from Landlord's active negligence or willful misconduct, or from any breach or default by Landlord in the performance of any obligation on the part of Landlord to be performed under the terms of this Lease (all of the foregoing collectively referred to hereinafter as "Landlord Indemnity Claims"), excluding, however, the negligence or willful misconduct of Tenant, its agents, servants, employees, invitees, or contractors. Landlord agrees to defend all Landlord Indemnity Claims on behalf of Tenant, with counsel reasonably acceptable to Tenant. The obligations of Landlord contained in this Paragraph shall survive the expiration of the Lease term, or sooner termination thereof. 14. LIENS. Tenant shall keep the Premises and the Property free from any liens arising out of any work performed, materials furnished or obligation incurred by Tenant. In the event that Tenant shall not, within ten (1 0) days following notice of the imposition of any such lien, cause the same to be released of record, Landlord shall have, in addition to all other remedies provided herein and by law, the right, but no obligation, to cause the same to be released by such means as Landlord shall deem proper, including payment of the claim giving rise to such lien. All sums paid by Landlord for such purpose, and all expenses incurred by it in connection therewith, shall be payable to Landlord by Tenant on demand with interest at the Interest Kate. 15. ASSIGNMENT AND SUBLETTING. 15.1 Consent Required. Except as hereinafter provided, Tenant shall not assign, transfer, encumber, grant any concession or license or hypothecate the leasehold estate under this Lease, or any interest therein, and shall not sublet the Premises, or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person or entity to occupy or use the Premises, or any portion thereof without, in each case, the prior written consent of Landlord, which consent will not be unreasonably withheld. Collectively, all of the foregoing prohibited actions shall hereinafter be referred to as a"Transfer" of the Lease. The following conditions or standards shall be satisfied as a condition to Landlord's consent to a proposed Transfer: (1) The proposed transferee shall expressly assume in writing (or in the case of a sublessee agree to be bound by) all of the provisions, covenants and conditions of the Lease on the part of Tenant to be kept and performed with respect to the portion of the Premises subject to the Transfer, (2)the proposed transferee shall satisfy Landlord's then current credit standards and in Landlord's reasonable opinion shall have the financial strength and stability to perform all of the obligations of Tenant under this Lease as and when due; (3)the proposed use of the Premises by the proposed transferee shall be lawful and be consistent with the permitted use of the Premises under this Lease and shall not violate any private restrictions affecting the Property; (4) Tenant shall pay Landlord's actual attorneys' fees incurred in connection with the negotiation, review and processing of all proposed Transfer documents; (5) at the time of the proposed Transfer, Tenant shall not be in default under this Lease; (6) the proposed transferee shall not be a governmental entity and shall not hold any exemption from the payment of ad valorem or other taxes which would prohibit Landlord from collecting from the transferee any amounts otherwise 15 payable under this Lease; and (7) all lenders of Landlord who have approval rights regarding the proposed Transfer shall have consented in writing to such Transfer. 15.2 Documentation. In connection with any Transfer which Tenant desires to make, Tenant shall provide to Landlord the name and address of the proposed transferee, and true and complete copies of all documents relating to Tenant's prospective agreement to Transfer, and audited financial statements of the proposed transfer for the past two (2) years, or such other financial information as is reasonably acceptable to Landlord. Tenant shall also specify in writing on an itemized basis all consideration to be received by Tenant for such Transfer in the form of lump sum payments, installments of rent, or otherwise. For purposes of this Paragraph 15, the term "consideration" shall include, without limitation, all monies or other consideration of any kind, including but not limited to, bonus money, and payments (in excess of book value thereof) for Tenant's assets, fixtures, inventory, accounts, good will, equipment, furniture, general intangibles, and any capital stock or other equity ownership of Tenant. Within twenty (20) days after the receipt of such documentation and other information, Landlord shall be entitled to notify Tenant in writing that Landlord elects to terminate this Lease as to the portion of the Premises to be transferred or if Landlord does not elect any such termination, then Landlord shall either (1) consent in writing to the proposed Transfer, subject to the terms and conditions hereinafter set forth, or (2) notify Tenant in writing that Landlord refuses such consent and state the reasons therefor. 15.3 Additional Terms and Conditions. As a condition to Landlord's granting its consent to any Transfer of all of the Premises, Landlord may require that Tenant pay to Landlord, as and when received by Tenant one hundred percent (100%) of any excess of consideration to be received by Tenant in connection with said Transfer over and above the rental amount fixed by this Lease and payable by Tenant to Landlord, provided that Tenant shall first be entitled to deduct reasonable leasing commissions paid by Tenant in obtaining the subtenant or assignee and reimbursement of legal fees charged by landlord for review of documents related to the transfer. Each Transfer to which Landlord has consented shall be an instrument in writing in form satisfactory to Landlord, and shall be executed by both Tenant and the transferee, as the case may be. Each such Transfer agreement shall recite that it is and shall be subject and subordinate to the provisions of this Lease, that the transferee accepts such Transfer and agrees to perform all of the obligations of Tenant thereunder, and that the termination of this Lease shall; at Landlord's sole election, constitute a termination of such Transfer. In the event Landlord shall consent to a Transfer, Tenant shall nonetheless remain primarily liable for all obligations and liabilities of Tenant under this Lease, including but not limited to the payment of Rent. Each proposed Transfer shall provide that Landlord, at its option, may require the transferee to pay all rent due under such sublease, assignment, license or concession directly to Landlord instead of Tenant to the extent Tenant is in default of payment of any Rent due hereunder. 15.4 Partnership/LLC. If Tenant is a partnership or a limited liability company, a transfer, voluntary or involuntary, of all or any part of an interest in the partnership or limited liability company, or the dissolution of the partnership or limited liability company, shall be deemed a Transfer requiring Landlord's prior written consent. 16 15.5 Corporation. Any dissolution, merger, consolidation or other reorganization of Tenant, or the sale or other transfer in the aggregate over the Lease term of a controlling percentage of the capital stock of Tenant, or the sale or transfer of all or a substantial portion of the assets of Tenant, shall be deemed a voluntary assignment of Tenant's interest in this Lease and shall require Landlord's prior written consent. The phrase "controlling percentage" means the ownership of and the right to vote stock possessing more than fifty percent of the total combined voting power of all classes of Tenant's capital stock issued, outstanding and entitled to vote for the election of directors. 15.6 Landlord's Remedies. Any Transfer without Landlord's prior written consent shall at Landlord's election be void, and shall constitute a default under this Lease. The consent by Landlord to any Transfer shall not constitute a waiver of the provisions of this Paragraph 15, including the requirement of Landlord's prior written consent, with respect to any subsequent Transfer. If Tenant shall purport to assign this Lease, or sublease all or any portion of the Premises, or permit any person or persons other than Tenant to occupy the Premises, without Landlord's prior written consent, Landlord may collect rent from the person or persons then or thereafter occupying the Premises and apply the net amount collected to the Rent reserved herein, but no such collection shall be deemed a waiver of Landlord's rights and remedies under this Paragraph 15, or the acceptance of any such purported assignee, sublessee or occupant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. 16. DEFAULT BY TENANT. 16.1 Event of Default. The occurrence of any one or more of the following events (an "Event of Default") shall constitute a default and breach of this Lease by Tenant: A. The failure by Tenant to make any payment of Rent or any other payment required to be made by Tenant hereunder, as and when due, and such failure shall not have been cured within ten (10) days after written notice thereof from Landlord; B. Tenant's failure to perform any other term, covenant or condition contained in this Lease and such failure shall have continued for twenty (20) days after written notice of such failure is given to Tenant; provided that, where such failure cannot reasonably be cured within said twenty (20) day period, Tenant shall not be in default if Tenant commences such cure within said twenty (20) day period and thereafter diligently continues completion thereof; C. Tenant's failure to continuously and uninterruptedly conduct its business in the Premises for a period of more than sixty (60) consecutive days, or Tenant's removal of all or substantially all of its equipment and other possessions from the Premises, without providing security protection for the Premises reasonably satisfactory to Landlord; D. Tenant or any Guarantor of this Lease shall have made a general assignment of all or a substantial part of its assets for the benefit of its creditors; 17 ............. _. . . . E. Tenant or any Guarantor of this Lease shall have permitted or suffered the sequestration or attachment of, or execution on, or the appointment of a custodian or receiver with respect to, all or any substantial part of the property or assets of Tenant(or such Guarantor) or any property or asset essential to the conduct of Tenant's (or such Guarantor's) business, and Tenant (or such Guarantor) shall have failed to obtain a return or release of the same within thirty (30) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier, F. Tenant or any Guarantor of this Lease shall have allowed (or sought) to have entered against it a decree or order which: (i) grants or constitutes an order for relief, appointment of a trustee, or condemnation or a reorganization plan under the bankruptcy laws of the United States; (ii) approves as properly filed a petition seeking liquidation or reorganization under said bankruptcy laws or any other debtor's relief law or similar statute of the United States or any state thereof; or (iii)otherwise directs the winding up or liquidation of Tenant; provided, however, if any decree or order was entered without Tenant's consent or over Tenant's objection, Landlord may not terminate this Lease pursuant to this Subparagraph if such decree or order is rescinded or reversed within thirty(30) days after its original entry; or G. Tenant shall have sublet the Premises or assigned or encumbered its interest in this Lease in violation of the provisions contained in Section 15, whether voluntarily or by operation of law 16.2 Remedies. Upon any Event of Default, Landlord shall have the following remedies, in addition to all other rights and remedies provided by law or equity: A. Landlord shall be entitled to keep this Lease in full force and effect for so long as Landlord does not terminate Tenant's right to possession (whether or not Tenant shall have abandoned the Premises) and Landlord may enforce all of its rights and remedies under this Lease, including the right to recover Rent and other sums as they become due under this Lease as provided in Section 1951.4 of the California Civil Code; or B. Landlord may terminate the Tenant's right to possession by giving Tenant written notice of termination. Any termination under this paragraph shall not release Tenant from the payment of any sum then due Landlord or from any claim for damages or Rent previously accrued or then accruing against Tenant. In the event this Lease is terminated pursuant to this Paragraph 16.2B., Landlord may recover from Tenant: (i) the worth at the time of award of the unpaid rent which had been earned at the time of termination;plus (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss for the same period that Tenant proves could have been reasonably avoided; plus 18 (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss for the same period that Tenant proves could be reasonably avoided, plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant`s failure to perform Tenant's obligations under this Lease, or which in the ordinary course of things would be likely to result therefrom. The "worth at the time of award" of the amounts referred to in subparagraphs(i) and (ii) of this Paragraph 16.2B. shall be computed by allowing interest at the lower of five percent (5%)per annum plus the discount rate of the Federal Reserve Bank of San Francisco, or the maximum rate then permitted by law. The "worth at the time of award" of the amount referred to in subparagraph(iii) of this paragraph shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent(M). The term "Rent" as used in this paragraph shall include all sums required to be paid by Tenant to Landlord pursuant to the terms of this Lease. C. This Lease may be terminated by a judgment specifically providing for termination, or by Landlord's delivery to Tenant of written notice specifically terminating this Lease. In no event shall any one or more of the following actions by Landlord, in the absence of a written election by Landlord to terminate this Lease, constitute a termination of the Lease or a waiver of Landlord's right to recover damages under this Paragraph 16: (i) appointment of a receiver in order to protect Landlord's interest hereunder; (ii) consent to any subletting of the Premises or assignment of this Lease by Tenant, whether pursuant to provisions hereof concerning subletting and assignment or otherwise; or (iii) any other action by Landlord or Landlord's agents intended to mitigate the adverse effects of any breach of this Lease by Tenant, including without limitation any action taken to maintain and preserve the Premises, or any action taken to relet the Premises or any portion thereof for the account of Tenant and in the name of Tenant. 16.3 No Relief From Forfeiture After Default. Tenant waives all rights of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179, and under any other present or future law, in the event Tenant is evicted or Landlord otherwise lawfully takes possession of the Premises by reason of any Event of Default. 16.4 Additional Rent. For purposes of any unlawful detainer action by Landlord against Tenant pursuant to California Code of Civil Procedure Sections 1161-1174, or any similar or successor statutes, Landlord shall be entitled to recover as Rent not only such sums specified in Paragraph 4 as Base Rent and Additional Rent as may then be overdue, but also all such additional sums of Pent as may then be overdue. 19 _. . 16.5 Remedies Not Exclusive. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies herein provided or permitted at law or in equity. 17. DEFAULT BY LANDLORD. 17.1 Cure Period. Landlord shall not be deemed to be in default in the performance of any obligation required to be performed by it hereunder unless and until it has failed to perform such obligation within the period of time specifically provided herein, or if no period of time has been provided, then within thirty (30) days after receipt of written notice by Tenant to Landlord specifying therein the nature such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are reasonably required for its performance, then Landlord shall not be deemed to be in default if it shall commence such performance within such thirty (30) day period and thereafter diligently complete such obligation. 17.2 Mortgage Protection. In the event of any default on the part of Landlord, Tenant will give notice by registered or certified mail to any beneficiary of a deed of trust or mortgagee of a mortgage encumbering the Premises whose address shall have been furnished to Tenant, and before Tenant shall have any right to terminate this Lease, Tenant shall grant such beneficiary or mortgagee a reasonable period within which to cure the default, if such action is necessary to effect a cure. 17.3 Tenant's Repair Rights. If Landlord is in default as provided in Paragraph 17.1 with regard to its obligation to make repairs to the Building or to the Premises as required by the terms of this Lease, Tenant shall be entitled, following an additional five (5) days' prior written notice to Landlord of Tenant's intent to perform required repairs at Landlord's expense, to perforin the required repairs on Landlord's behalf and at Landlord's expense whereupon Landlord shall reimburse Tenant for all costs and expenses incurred in connection therewith within thirty (30) days of demand therefor. If Landlord fails to reimburse Tenant as required by the preceding sentence, Tenant shall be entitled to offset the sums owing to it against rent due hereunder. 18. SUBORDINATION AND MORTGAGES. In the event Landlord's title is now or hereafter encumbered by a deed of trust to secure a loan from a lender (hereinafter referred to as "Lender") to Landlord, Tenant shall, within ten (10) business days of the request by Landlord or Lender, execute and deliver to Landlord an agreement subordinating Tenants rights under this Lease to the lien of such deed of trust, in form requested by the Lender. Notwithstanding the foregoing, Tenant's possession under this Lease shall not be disturbed if Tenant is not in default and so long as Tenant shall pay all Rent and observe and perform all of the provisions set forth in this Lease, and any subordination agreement shall expressly recognize Tenant's right to continued occupancy under this Lease in accordance with the foregoing. Additionally, this Lease shall be subject and subordinate to any and all documents or instruments recorded by or on behalf of Landlord in connection with the recordation of the Map by Landlord and the completion of the improvements within the Center, including without limitation the CC&Rs, the Map, and all related easement agreements or related encumbrances and, within ten (10) business 20 __ _. ... days of request by Landlord Tenant shall execute any documents requested by Landlord to evidence said subordination. In the event Tenant elects to finance any of its equipment, furnishings and/or trade fixtures that can be removed from the Premises without material damage to the Premises, Landlord agrees to execute the Landlord's Waiver in substantially the same form and content as the Landlord's Waiver labeled Exhibit "G-1" attached hereto and incorporated herein, and shall use commercially reasonable efforts to cause any beneficiary of a deed of trust against the Premises (a "Mortgagee") to execute the Mortgagee's Waiver labeled Exhibit "G-2" attached hereto and incorporated herein. 19. ENTRY OF PREMISES. Landlord shall at all reasonable times and upon reasonable prior notice (except in emergencies) have the right to enter the Premises to inspect them, to perform any services to be provided by Landlord hereunder, to show the Premises to prospective purchasers, mortgagors or tenants, to post notices of nonresponsibility and to alter, improve or repair the Premises and any portion of the Property, all without abatement of rent; provided, however, that Landlord shall use reasonable efforts to minimize interference with Tenant's business. Landlord shall have the right to erect scaffolding and other structures in or through the Premises when reasonably required for by any work to be performed by Landlord. Landlord shall at all times retain a key with which to unlock all of the doors to the Premises in an emergency, and any entry to the Premises obtained by Landlord shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into or a detainer of the Premises or an eviction, actual or constructive, of Tenant from the Premises or any portion thereof. 20. VACATION OR ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time during the term of this Lease, and if Tenant shall abandon, vacate or surrender said Premises, or be dispossessed by the process of law, or otherwise, any personal property belonging to Tenant and left on the Premises shall be deemed to be abandoned, at the option of Landlord. 21. DAMAGE OR DESTRUCTION. 21.1 Partial Damage-Insured. Subject to the provisions of Paragraphs 21.3 and 21.4, if either the Premises or the Building, as the case may be, is damaged to the extent of less than fifty percent (50%) of the then replacement cost thereof (the "Replacement Cost"), and such damage was caused by an act or casualty covered under an insurance policy obtained by Landlord pursuant to Paragraph 12.5, and the proceeds of such insurance received by Landlord are sufficient to repair the damage, Landlord shall at Landlord's expense repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect; provided that if the repair will take more than one hundred twenty (120) days to complete from the date of damage, as reasonably estimated by an independent licensed contractor selected by Landlord (the "Approved Contractor"), Tenant shall have the right to terminate this Lease by delivering written notice of such election to Landlord within thirty (30) days after receiving written notice of the Approved Contractor's estimated time to complete such repair. In such event, this Lease shall terminate effective thirty (30) days after delivery of such written notice. 21 21.2 Partial Damage-Uninsured. Subject to the provisions of Paragraphs 21.3 and 21.4, if at any time during the term hereof the Premises or either of the Building, as the case may be, are partially damaged as described in Paragraph 21.1 and the proceeds received by Landlord are not sufficient to repair such damage, or such damage was caused by an act or casualty not covered under an insurance policy obtained by Landlord, Landlord may at Landlord's option either (1)repair such damage as soon as reasonably possible at Landlord's expense, in which event this Lease shall continue in full force and effect, or(2) give written notice of termination of this Lease to Tenant within thirty (30) days after the earlier of the date that (i) Tenant notifies Landlord of the occurrence of such damage or (ii) Landlord becomes aware thereof, with the effective date of such termination to be the date of the occurrence of such damage. Tenant shall be entitled to terminate the Lease in accordance with Paragraph 21.1 if the repairs described herein cannot be completed within one hundred twenty(120) days from the date of the damage. 21.3 Total Destruction. If at any time during the term hereof the Premises is destroyed to the extent of fifty percent (50%) or more of the then Replacement Cost, from any cause whether or not covered by the insurance obtained by Landlord, this Lease shall at the option of Landlord terminate as of the date of such destruction. Landlord shall exercise its right to terminate this Lease by delivery of notice of termination to Tenant within thirty(30) days after the earlier of the date that (i) Tenant notifies Landlord of the occurrence of such damage or (ii) Landlord becomes aware thereof. In the event Landlord does not elect to terminate this Lease, Landlord shall at Landlord's expense repair such damage as soon as reasonably possible, and this Lease shall continue in full force and effect, provided that Tenant may terminate the Lease in accordance with Paragraph 21.1 if the repairs cannot be completed within one hundred twenty(120) days from the date of the damage. 21.4 Damage bear End of Term. If the Premises are destroyed or damaged in whole or in material part during the last year of the Lease term and if it would take more than sixty (60) days to repair or restore the Premises, either Landlord or Tenant may terminate this Lease as of the date of occurrence of such damage by giving written notice thereof to other party of such election within thirty (30) days after the date of occurrence of such damage. 21.5 Abatement of Rent. Notwithstanding anything to the contrary contained in this Lease, if the Premises are partially damaged and Landlord repairs or restores them pursuant to the provisions of this Paragraph 21, Base Rent and Additional Rent payable hereunder for the period commencing on the occurrence of such damage and ending upon completion of such repair or restoration shall be abated in proportion to the extent to which Tenant's use of the Premises is impaired during the period of repair; provided that, nothing herein shall be construed to preclude Landlord from being entitled to collect the full amount of any rental loss insurance proceeds. Except for such abatement, if any, and except as otherwise expressly provided herein, Tenant shall have no claim against Landlord for any damage suffered by reason of any such damage, destruction, repair or restoration. 21.6 Waiver. Tenant waives the provisions of California Civil Code Sections 1932(2) and 1933(4), and any similar or successor statutes relating to termination of leases when the thing leased is substantially or entirely destroyed, and agrees that any such occurrence shall instead be governed by the terms of this Lease. 22 21.7 Tenant's Property. Landlord's obligation to rebuild or restore shall not include restoration of Tenant's trade fixtures., equipment, merchandise, or any improvements, alterations or additions made by Tenant to the Premises. 21.8 Notice of Damage. Tenant shall notify Landlord within five (5) days after the occurrence thereof of any damage to all or any portion of the Premises. In no event shall Landlord have any obligation to repair or restore the Premises pursuant to this Paragraph 21 until a reasonable period of time after Landlord's receipt of notice from Tenant of the nature and scope of any damage to the Premises, and a reasonable period of time to collect insurance proceeds arising from such damage (unless such damage is clearly not covered by insurance then in effect covering the Premises). 21.9 Replacement Cost. The determination in good faith by the Approved Contractor of the estimated repair time, cost of repair of any damage, or of the Replacement Cost, shall be conclusive for purposes of this Paragraph 21. 22. EMINENT DOMAIN. If all or any part of the Premises shall be taken by any public or quasi-public authority under the power of eminent domain or conveyance in lieu thereof, this Lease shall terminate as to any portion of the Premises so taken or conveyed on the date when title vests in the condemnor, and Landlord shall be entitled to any and all payment, income, rent, award, or any interest therein whatsoever which may be paid or made in connection with such taking or conveyance, and Tenant shall have no claim against Landlord or otherwise for the value of any unexpired term of this Lease, provided that Tenant shall be entitled to make a separate claim against the taking authority for the value of Tenant's payments hereunder for the Tenant Improvements. If (i) any action or proceeding is commenced for such taking of the Premises or any part thereof, or if Landlord is advised in writing by any entity or body having the right or power of condemnation of its intention to condemn the Premises or any portion thereof, or(ii) any of the foregoing events occur with respect to the taking of any other portion of the Building or Property not leased hereby, and Landlord shall decide to discontinue the use and operation of the Building or Property, or decide to demolish, alter or rebuild the Building or Property, then, in any of such events Landlord shall have the right to terminate this Lease upon thirty (30) days prior written notice to Tenant. In the event of a partial taking or conveyance of the Premises under power of eminent domain, if the portion of the Premises taken or conveyed is so substantial that the Tenant can no longer reasonably conduct its business therein, Tenant shall have the right to terminate this Lease within sixty (60) days from the date of such taking or conveyance, upon written notice to Landlord of its intention to terminate the Lease. Upon delivery of such notice, this Lease shall terminate on the last day of the calendar month next following the month in which such notice is given, upon payment by Tenant of the Rent from the date of such taking or conveyance to the date of termination. If a portion of the Premises be taken by condemnation or conveyance in lieu thereof and neither Landlord nor Tenant shall terminate this Lease as provided herein, this Lease shall continue in full force and effect as to the part of the Premises not so taken or conveyed, and the Rent herein shall be thereafter be reduced to the extent by Tenant's use or occupancy of the Premises has been adversely affected. The rights of Landlord and Tenant regarding any taking or conveyance under power or threat of eminent domain shall be governed by the terms of this paragraph, and each party waives the provisions of California Civil Procedure Code Section 1265.130 and the provisions of any 23 �i similar law hereinafter enacted allowing either party to petition the Superior Court to terminate this Lease in the event of a partial taking of the Premises. 23, SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or conveyance of the Property or any interest therein, by any owner of the reversion then constituting Landlord, the transferor shall cause the transferee to assume all of its continuing obligations under this Lease and the transferor shall thereby be released from any further liability upon any of the terms, covenants or conditions (express or implied) herein contained in favor of Tenant, and in such event, insofar as such transfer is concerned, Tenant agrees to look solely to the responsibility of the successor in interest of such transferor in and to the Property and this Lease. This Lease shall not be affected by any such sale or conveyance, and Tenant agrees to attorn to the successor in interest of such transferor. 24. ATTORNMENT TO LENDER. OR THIRD PARTY. In the event the interest of Landlord in the land and Building in which the leased Premises are located (whether such interest of Landlord is a fee title interest or a leasehold interest) is encumbered by deed of trust, and such interest is acquired by the lender or any third party through judicial foreclosure or by exercise of a power of sale at private trustee's foreclosure sale, Tenant hereby agrees to attorn to the purchaser at any such foreclosure sale and to recognize such purchaser as the Landlord under this Lease. In the event the lien of the deed of trust securing the loan from a Lender to Landlord is prior and paramount to the Lease, this Lease shall nonetheless continue in full force and effect for the remainder of the unexpired term hereof, at the same rental herein reserved and upon all the other terms, conditions and covenants herein contained. 25. HOLDING OVER.. Any holding over by Tenant after expiration or other termination of the term of this Lease with the written consent of Landlord delivered to Tenant shall not constitute a renewal or extension of the Lease or give Tenant any rights in or to the leased Premises except as expressly provided in this Lease. Any holding over after the expiration or other termination of the term of this Lease, with the consent of Landlord, shall be construed to be a tenancy from month to month, on the same terms and conditions herein specified insofar as applicable except that the .monthly Base Rent shall be increased to an amount equal to one hundred fifty percent (150%) of the monthly Base Rent required during the last month of the Lease term. Notwithstanding the foregoing, if as of the expiration of the term of this Lease, Tenant and Landlord are negotiating terms for a term extension and successfully complete said negotiations, then the new rental rate so negotiated shall apply retroactively in lieu of the holdover rate described above and the parties shall make an appropriate adjustment to rental payments so that the rate paid during the holdover period is the same rate as the initial negotiated rate for the extended term. 26. ESTOPPEL CERTIFICATE. Tenant,through its Director of General Services or his or her designee and based on said individual's knowledge, shall at any time upon not less than ten(10)business days' prior written notice to Landlord execute, acknowledge and deliver to Landlord a statement in writing (i) certifying that this Lease is unmodified and in full force and effect(or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which the Rent and other charges are paid in advance, if any, and(ii)acknowledging that there are not,to Tenant's knowledge, any uncured defaults on the part of Landlord. hereunder, or specifying such defaults, if any, are claimed, Any 24 such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises. 27. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and conditions of this Lease to be performed or observed by Tenant shall be performed or observed by Tenant at Tenant's sole cost and expense and without any reduction of Rent. If Tenant shall fail to pay any sum of money, or Rent, required to be paid by it hereunder or shall fail to perform any other term or covenant hereunder on its part to be performed, and such failure shall continue for ten (10) business days after written notice of Landlord's intent to perform such term of condition, Landlord, without waiving or releasing Tenant from any obligation of Tenant hereunder, may, but shall not be obligated to, make any such payment or perform any such other term or covenant on Tenant's part to be performed. All sums so paid by Landlord and all necessary costs of such performance by Landlord together with interest thereon at the Interest Rate from the date of such payment or performance by Landlord, shall be paid by Tenant to Landlord on demand by Landlord, and Landlord shall have the same rights and remedies in the event of nonpayment by Tenant as in the case of failure by Tenant in the payment of Rent hereunder. 28. ATTORNEYS' FEES. In the event that either Landlord or Tenant should bring an action or proceeding for the possession of the Premises, for the recovery of any sum due under this Lease, or because of the breach of any provision of this Lease, or for any other relief against the other party hereunder, then all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party therein shall be paid by the other party. 29. WAIVER. The waiver by either party of the other party's failure to perform or observe any term, covenant or condition herein contained to be performed or observed by such waiving party shall not be deemed to be a waiver of such term, covenant or condition with respect to any subsequent failure of the party failing to perform or observe'the same or any other such term, covenant or condition therein contained, and no custom or practice which may develop between the parties hereto during the term hereof shall be deemed a waiver of, or in any way affect, the right of either party to insist upon performance and observance by the other party in strict accordance with the terms hereof. 30. NOTICES. All notices, demands, requests, advices or designations which may be or are required to be given by either party to the other hereunder shall be in writing. All notices, demands, requests, advices or designations by Landlord to Tenant shall be sufficiently given, made or delivered if sent by commercial courier or by United States certified or registered mail, postage prepaid, addressed to Tenant at its address set forth on the Lease Summary. All notices, demands, requests, advices or designations by Tenant to Landlord shall be sent by commercial courier or by United States certified or registered mail, postage prepaid, addressed to Landlord at its address set forth on the Lease Summary. In lieu of the foregoing, either party may give notice to the other by facsimile with a copy by commercial courier. Each notice, request, demand, advice or designation referred to in this paragraph including those given by facsimile shall be deemed received on the date of delivery thereof or refusal of receipt by the recipient, as the case may be. 31. AUTHORITY. If Tenant is a corporation, partnership or an LLC, each individual executing this Lease on behalf of said entity represents and warrants that he is duly authorized to 25 execute and deliver this Lease on behalf of said entity in accordance with its corporate by-laws, partnership agreement or operating agreement and that this Lease is binding upon said corporation, partnership or limited liability company in accordance with its terms. 32. LIMITATION OF LIABILITY. Tenant and all successors and assigns covenant and agree that, in the event of any actual or alleged failure, breach or default hereunder by Landlord: (i) the sole and exclusive remedy shall be against Landlord's interest in the Property; (ii) no partner, member or owner of Landlord shall be sued or named as a party in any suit or action(except as may be necessary to secure jurisdiction of the partnership); (iii) no judgment will be taken against any partner,member or owner of Landlord; (iv) any judgment taken against any partner, member or owner of Landlord may be vacated and set aside at any time without hearing; Tenant agrees that each of the foregoing covenants and agreements shall be applicable to any covenant or agreement either expressly contained in this Lease or imposed by statute or at common law. 33. MISCELLANEOUS AND GENERAL PROVISIONS. A. This Lease shall in all respects be governed by and construed in accordance with the laws of the State of California. If any provision of this Lease shall be invalid, unenforceable or ineffective for any reason whatsoever, all other provisions hereof shall be and remain in full force and effect. B. Time is of the essence of this Lease and of each and all of its provisions. C. At the expiration or earlier termination of this Lease, Tenant shall execute, acknowledge and deliver to Landlord, within thirty (30) days after written demand from Landlord to Tenant, any quitclaim deed or other document required by any reputable title company, licensed to operate in the State of California, to remove the cloud or encumbrance created by this Lease from the real property of which the Premises are a part. D. This instrument along with any exhibits and attachments hereto constitutes the entire Agreement between Landlord and Tenant relative to the Premises and this agreement and the exhibits and attachments may be altered, amended or revoked only by an instrument in writing signed by both Landlord and Tenant. Landlord and Tenant agree hereby that all prior or contemporaneous oral agreements between and among themselves and their agents or representatives relative to the leasing of the Premises are merged in or revoked by this agreement. E. Neither Landlord nor Tenant shall record this Lease or a short form memorandum hereof without the consent of the other. 26 F. Tenant further agrees to execute any amendments required Landlord in order to obtain financing for the Property, so long as Tenant's rights hereunder are not materially affected and Tenant shall not incur any cost in connection therewith. G. Tenant covenants and agrees that no diminution or shutting off of light, air or view by any structure which may be hereafter erected (whether or not by Landlord) shall in any way affect this Lease, entitle Tenant to any reduction of Rent hereunder or result in any liability of Landlord to Tenant. H. The voluntary or other surrender of this Lease or the Premises by Tenant or a mutual cancellation of this Lease shall not work as a merger and, at the option of Landlord, shall either terminate all or any existing subleases or subtenancies or operate as an assignment to Landlord of all or any such subleases or subtenancies. 1. Any prevention of or delay in the performance by a party hereto of its obligations under this Agreement caused by inclement weather, labor disputes (including strikes and lockouts), inability to obtain materials or reasonable substitutes therefor, governmental restrictions, regulations, controls, action or inaction, civil commotion, fire or other causes beyond the reasonable control of the party obligated to perform (except financial inability) (collectively, "Farce Majeure"), shall excuse the performance by such party of its obligations hereunder for a period of one day for each such day of delay. 34. BROKER DISCLOSURE. Tenant acknowledges that partners of Landlord are licensed real estate brokers, as are officers, principals and/or members of Landlord's affiliated entities. 35. COMMISSION. [Intentionally Omitted] 36. SIGNAGE. Tenant shall not place or install on or within any portion of the Premises, the exterior of the Building, the Common Area or the Property any sign, advertisement, banner, placard, or picture which is visible from the exterior of the Premises except for reasonable directional and identification signage in compliance with the terms hereof Tenant shall not place or install on or within any portion of the Leased Premises, the exterior of the Building, the Common Area or the Center any business identification sign until Landlord shall have approved in writing and in its reasonable discretion the location, size, content, design, method of attachment and material to be used in the making of such sign. All signs shall conform to the master sign program for the Center as well as with any requirements of the City of Brentwood. Any sign, once approved by Landlord, shall be installed at Tenant's sole cost and expense and only in strict compliance with Landlord's approval, using a person approved by Landlord to install same. Landlord may remove any signs (which have not been approved in writing by Landlord), advertisements, banners, placards or pictures so placed by Tenant on or within the Leased Premises, the exterior of the Building, the Common Area or the Property and charge to Tenant the cost of such removal, together with any costs incurred by Landlord to repair any damage caused thereby, including any cost incurred to restore the surface (upon which such sign was so affixed) to its original condition less reasonable wear and tear. Tenant shall remove all of Tenant's signs, repair any damage caused thereby, and restore the surface upon which the sign was affixed to its original condition less reasonable wear and tear, all to Landlord's reasonable satisfaction, upon the termination of this Lease. 27 37. GUARANTY, [Intentionally Omitted] 38. ADVICE OF COUNSEL. TENANT ACKNOWLEDGES AND AGREES THAT (A) LANDLORD HAS ENCOURAGED TENANT TO SEEK THE ADVICE OF LEGAL COUNSEL IN CONNECTION WITH THE MAKING OF THIS LEASE, (B) TENANT HAS HAD A FULL AND FAIR OPPORTUNITY TO DISCUSS THIS LEASE WITH COUNSEL, AND TENANT HAS EITHER. CONSULTED WITH COUNSEL OR DETERMINED THAT SUCH CONSULTATION IS UNNECESSARY, (C) TENANT HAS HAD A FULL AND FAIR OPPORTUNITY TO NEGOTIATE CHANGES TO EACH OF THE TERMS AND CONDITIONS OF THIS LEASE, AND (D) TENANT HAS A FULL UNDERSTANDING OF THE MEANING AND EFFECT OF EACH OF THE TERMS AND CONDITIONS OF THIS LEASE. IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease as of the day and year first above written. LANDLORD: TENANT: Sand Creek Business Center II, L.P. County of Contra Costa , a political subdivision of the State of California By: Sand Creek Business Center Management, Inc., its General PIAV g By: �1 Director of General Services APPROVED AS TO FORM: Arthur L. Lorenzini, Jr.,Y4Rident Silvano B. Marchesi, County Counsel By: Deputy 28 EXHIBIT A-I DIAGRAM OF PREMISES { -n 10 dil f -u zLaz El _,n � 0' f i L a x I on os� OU 01. 1 co �q 01 :7 _ l �� $ z om x w� m 0 \ \ \ Nrtvv q' r[ . \ r �v 6 EXHIBIT A-2 DESCRIPTION OF PROPERTY The Property is all the real property located in the City of Brentwood,County of Contra Costa, State of California, described as Parcel B, containing 19,548 square feet, more or less, on that certain Parcel Map Subdivision MS 356-00 filed for record on July 26, 2002, in Book 184 of Parcel Maps at Pages 23 and 24, inclusive, in the Official Records of the County of Contra Costa, State of California. EXHIBIT A-3 COMMON AREA The Common Area is all the real property located in the City of Brentwood, County of Contra Costa, State of California, described as Parcel A and Parcel E, containing 67,571 square feet and 19,097 square feet, more or less, respectively, on that certain Parcel Map Subdivision MS 365-02 filed for record on September 23, 2003, in Book 1$8 of Parcel Maps at Page 20, in the Official Records of the County of Contra Costa, State of California. EXHIBIT A-4 THE CENTER The Center is all the real property located in the City of Brentwood, County of Contra Costa, State of California and described on the following parcel maps: Parcel Map Subdivision MS 356-00 filed for record on July 26, 2402, in Book 184 of Parcel Maps at Pages 23 and 24, inclusive, in the Official Records of the County of Contra Costa, State of California and Parcel Map Subdivision MS 365-02 filed for record on September 23, 2003, in Book 188 of Parcel Maps at Page 20, in the Official Records of the County of Contra Costa, State of California. EXHIBIT B DECLARATION OF COVENANTS, CONDITIONS OF SAND CREEK BUSINESS CENTER See Attached CC&Rs EXHIBIT C RULES AND REGULATIONS (NONE) .................... _. EXHIBIT D EXTENSION OPTION Subject to Subsection B below, Tenant may at its option extend the term of this Lease for two (2) successive periods of five (5) years each (each a "Renewal Term"). Each Renewal Term shall be upon the same terms contained in this Lease, excluding the provisions of this Exhibit D and Exhibit F and except for the payment of Base Rent during such Renewal Term; and any reference in the Lease to the "term" of the Lease shall be deemed to include the Renewal Term and apply thereto, unless it is expressly provided otherwise. Tenant shall have no additional extension options. A. The Base Rent during the first year of each Renewal Term shall be equal to the Market Rate (defined hereinafter) for such space for a term commencing on the first day of the applicable Renewal Term; provided that in no event shall the Base Rent during the first year of a Renewal Term be less than the Base Rent during the last year of the initial tern with respect to the first Renewal Term or during the last year of the first Renewal Term with respect to the second Renewal Term. "Market Rate" shall mean the then prevailing market rate for a comparable term commencing on the first day of the Renewal Term for tenants of comparable size and creditworthiness for comparable space in the Building and other comparable office buildings in the vicinity of the Building. B. To exercise any option, Tenant must deliver a binding written notice to Landlord not more than two hundred seventy (270) days and not less than one hundred eighty (180) days prior to the expiration of the initial term of this Lease or the first Renewal Tenn, as applicable. Tenant shall not be entitled to exercise its option for any Renewal Term if Tenant is in default of its obligations hereunder at the time of its attempted exercise or at the time when the applicable Renewal Term would commence or if Tenant has been in default hereunder more than two (2) times during the initial term with respect to the first Renewal Tenn or during the first Renewal Term with respect to the second Renewal Term. C. The parties shall have thirty (30) days after Tenant exercises its option to extend for a Renewal Term to mutually agree on the Market Rate for rent for the Premises as of the commencement of the Renewal Term If the parties fail to reach agreement during such thirty (30) day period, Market Rate rent for the first year of the applicable Renewal Terra shall be determined by appraisal in the manner hereafter set forth. Upon each anniversary of the commencement of the Renewal Term, the Market Rent as agreed upon by the parties or as determined by appraisal, shall be increased as provided in Paragraph 4.1 of this Lease. In the event it becomes necessary to determine the Market Rate for the Premises, Landlord and Tenant each shall appoint a licensed real estate broker who shall have at least five (5) years experience in leasing commercial properties in Brentwood, California and such brokers shall each determine the Market Rate monthly Base Rent for the Premises taking into account the value of the Premises as improved and prevailing comparable rentals and rental adjustment practices in the Brentwood area for comparable properties with improvements of similar age and configuration. Such brokers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to Landlord and Tenant, If the Market Rate monthly Base Rent of the Premises established in the two (2) appraisals varies by five percent (5%) or less of the higher rental, the average of the two shall be controlling. If said Market Rate monthly Base Rent varies by more than five percent (5%) of the higher rental, said appraisers, within ten (10) days after submission of the last appraisal, shall appoint a third licensed real estate broker who shall have at least five (5) years experience in leasing commercial properties in Brentwood. Such third broker shall, within twenty (20) business days after his appointment, determine by appraisal the Market Rate monthly Base Rent of the Premises, taking into account the same factors referred to above, and submit his appraisal report to Landlord and Tenant. If a third broker is appointed to determine the Market Rate monthly Base Rent, the Market Rate monthly Base Rent determined by the third broker shall be controlling, unless it is less than that set forth in the lower appraisal previously obtained, in which case the value set forth in said lower appraisal shall be controlling, or unless it is greater than that set forth in the higher appraisal previously obtained, in which case the rental set forth in said higher appraisal shall be controlling. If either Landlord or Tenant fails to appoint a licensed real estate broker, or if a broker appointed by either of them fails, after his appointment,to submit his appraisal within the required period in accordance with the foregoing, the appraisal submitted by the broker properly appointed and timely submitting his appraisal shall be controlling. Each party shall pay the cost of the broker selected by such party and the parties shall each pay fifty percent (50%) of the cost of the third broker. EXHIBIT E PAREING AREA The Parking Area is that area indicated as those 40 parking spaces numbered 1 - 12, 187 — 200, 22.8 — 231, 430 and 575 — 583 inclusive on that certain "Parking Plan" set forth in the Declaration of Annexation for the Property and the CC&Rs recorded concurrently with Parcel Map Subdivision MS 365-02. 187-200 228-231 1 -12 MARSH CREW a; 171 161 PHASE 2 PHASE I BLDG.— 4� BLDG.— 5 575-583 430 C.5 4 aT � Q ar O �i rN0 1 m w4 t LEASE — CCCVTRA COSTA COUNTY SCALE: 1"=120` PARKING PLAN --- SAND CREEI( SHEET 1 OF 1 BUSINFRR (%;7MTP0 DUACL- '7 _. . _. _........ __......._...._.. _.. ......... _............__... . ...... ......... ........ ......... ......... ....... .. .......... ........ ......._. ....... EXHIBIT P TENANT IMPROVEMENT AGREEMENT 1. TENANT IMPROVEMENTS. Landlord shall complete the tenant improvements within the Premises in substantial accordance with those certain Plans and Specifications, dated September 7, 2004, prepared by RMW Architecture and Interiors (the "Plans") which Plans have been mutually approved by Landlord and Tenant and are available at the offices of each party (the "Tenant Improvements"). The Tenant Improvements shall be completed using Building standard materials except as specifically provided in the Plans. The Tenant Improvements shall be performed at Tenant's sole cost and expense except for the Improvement Allowance to be paid to Contractor by Landlord. Landlord's approval of the Plans (or any modifications or changes thereto) shall not impose upon Landlord or its agents or representatives any obligation with respect to the design of the Tenant Improvements or the compliance of such Tenant Improvements with applicable Governmental Regulations except that Landlord shall cause Contractor to obtain all required building permits and final approvals in connection with the Tenant Improvements. Tenant and RMW Architecture and Interiors shall be responsible for ensuring that the Plans and the Tenant Improvements comply with all Governmental Regulations including but not limited to all requirements imposed by OSHPD regulations or otherwise as related to the status of Tenant's health clinic as a Sate of California licensed health care facility. In consideration of Tenant's execution of this Lease, Landlord shall retain Deveon Construction, Inc. ("Contractor") to construct the Tenant Improvements in accordance with the terms and conditions of a fixed-price construction contract (the "Construction Contract") in the amount of One Million Ninety Six Thousand Two Hundred Fifty Two Dollars ($1,096,252.00) (the "Contract Price") and in the form attached hereto as Schedule 1 and incorporated herein. Tenant shall be responsible for all costs and expenses related to the Tenant Improvements in excess of the amount of the Improvement Allowance (the "Tenant's Improvement Cost Amount") including but not limited to costs and expenses related to compliance with OSHPD requirements and Tenant's need for compliance with State requirements applicable to health care facility licensing. Tenant shall pay the Tenant's Improvement Cost Amount to Landlord as provided in Paragraph 3 below. Landlord shall use commercially reasonable efforts to cause the Tenant Improvements to be substantially completed (which shall include the issuance by the City of Brentwood of an occupancy permit or the equivalent thereof), except for "Punch List" items which do not materially impair Tenant's use and enjoyment of the Premises, on or before January 15, 2005, subject to Tenant Delay(as defined in Section 4 hereof) and Force Majeure. If due to the sole fault or cause of Landlord, the Tenant Improvements are not substantially completed (including the issuance of an occupancy permit or its equivalent but excepting said "Punch List" items as described above) on or before January 15, 2005, then the Commencement Date shall be extended through the date of substantial completion, subject, however, to the terms of Paragraph 4 below. Subject to the foregoing and to the provisions of Section 4 below regarding Tenant Delay, if the Tenant Improvements are not substantially completed(including the issuance of an occupancy permit or its equivalent) on or before January 15, 2005, then the Commencement Date shall be delayed until their substantial completion (and the issuance of an occupancy permit or its equivalent), provided that in all events the Commencement Date shall occur no later than February 1, 2005, unless substantial completion is delayed due to the sole fault or cause of Landlord. 2. CHANGE ORDERS. If, prior to the Commencement Date, Tenant shall require improvements or changes (individually or collectively, "Change Orders") to the Premises in addition to, revision of or substitution for the Tenant Improvements, Tenant shall deliver to Landlord for its approval plans and specifications for such Change Orders. If Landlord foresees the completion date for the Tenant Improvements being delayed due to Change Orders, Landlord shall advise Tenant thereof and advise Tenant of an estimate of the time frame related thereto; provided, however, Tenant acknowledges that it is only an estimate based on Landlord's current actual knowledge and, accordingly, such estimate remains subject to change due to changed circumstances or circumstances beyond Landlord's control. If Landlord does not approve of the plans for Change Orders, Landlord shall advise Tenant of the revisions required. Tenant shall revise and redeliver the plans and specifications to Landlord within five (5) days of Landlord's advice or Tenant shall be deemed to have abandoned its request for such Change Orders. Upon receipt of written demand from Landlord, Tenant shall pay for all preparations and revisions of plans and specifications, and provided the Change Orders result in an increase in the Contract Price,the construction of all Change Orders. 3. PAYMENT OF TENANT IMPROVEMENT COSTS. Landlord shall contribute an amount not to exceed the Improvement Allowance toward the costs incurred for the Tenant Improvements which amount shall be paid to Contractor in accordance with the terms of the Construction Contract for the Tenant Improvements. Based on the Contract Price for the Tenant Improvements, the Improvement Allowance constitutes forty-six percent (46%) of the total anticipated cost of the Tenant Improvements and the Tenant's Improvement Cost Amount constitutes fifty-four percent (54%) of the total anticipated cost of the Tenant Improvements. Accordingly, as construction of the Tenant Improvements proceeds, on a monthly basis Tenant shall pay to Landlord fifty-five percent (54%) of the amounts invoiced by Contractor for the Tenant Improvements and Landlord shall pay forty-five percent (46%) of said invoiced amounts up to the amount of the Improvement Allowance, provided that Tenant shall pay Landlord one hundred percent (100%) of the amount of any changes or additions to the project requested by Tenant and shown on said invoice. The Construction Contract shall require a ten percent (10%) retention from progress payments pending substantial completion of the Tenant Improvements. Tenant shall be responsible for all costs and expenses associated with the Tenant Improvements in excess of the Improvement Allowance. Tenant's payments of the Tenant's Improvement Cost Amount shall be made to Landlord at least two (2) days prior to the date on which the corresponding payment is due to Contractor under the Construction Contract. Tenant shall be solely responsible for all costs of the Tenant Improvements in excess of the Improvement Allowance. 4. COMMENCEMENT DATE DELAY. The Commencement Date shall be delayed until the Tenant Improvements have been substantially completed, as described above (the "Completion.Date") except to the extent that the delay shall be caused by any one or more of the following(each a"Tenant Delay"): t (a) Tenant's request for Change Orders whether or not any such Change Orders are actually performed; or (b) Contractor's performance of any Change Orders; or (c) Tenant's request for materials, finishes or installations requiring unusually long lead times; or (d) Tenant's delay in providing information or approvals critical to the normal progression of the project. Tenant shall provide such information or approvals as soon as reasonably possible, but in no event later than three (3) business days after receipt of such request for information from the Landlord; or (e) Tenant's delay in making payments to Landlord for costs of the Tenant Improvements and/or Change Orders as required hereby; or (f) Any other act or omission by Tenant, its agents, contractors or persons employed by any of such persons. If the Commencement Date is delayed for any reason constituting Tenant Delay, then Landlord shall cause the Contractor to certify the date on which the Tenant Improvements would have been completed but for such Tenant Delay and said date shall be the Commencement Date of the term of this Lease. 5. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM. Landlord at its reasonable discretion may permit Tenant and its agents to enter the Premises following reasonable notice prior to the Commencement Date to observe the progress of the Tenant Improvements. Any such permission shall constitute a license only, conditioned upon Tenant's: (a) cooperating with Landlord and Landlord's agents, contractors, workmen, mechanics and suppliers and with other tenants and occupants of the Building; and (b) furnishing Landlord with such insurance as Landlord may require against liabilities which may arise out of such entry. Landlord shall have the right to withdraw such license for any reason relating to Landlord's completion of the Tenant Improvements upon twenty-four (24) hours' written notice to Tenant. Tenant shall protect, defend, indemnify and save harmless Landlord from all liabilities, costs, damages, fees and expenses arising out of the activities of Tenant or its agents, contractors, suppliers or workmen in the Premises or the Building. 5. PROJECT REPRESENTATIVE. Tenant's Project representative for the construction of the Tenant Improvements ("Tenant's Representative") shall be Ted Johnson, Senior Project Manager, Capital Projects Division, General Services Department, Contra Costa County. Subject to the terms of Paragraph 5 of this Exhibit F, Tenant's Representative shall be entitled to enter upon the Premises to inspect the Tenant Improvements and shall have the sole authority on behalf of Tenant to issue any requests for Change Orders, interpret or answer any questions regarding the Plans, or approve any Change Orders and any such Change Orders, interpretations, answers, questions or approvals will be binding upon Tenant as to all matters pertaining hereto and the performance of the parties hereunder. From time to time, Tenant may change the designation of Tenant's Representative upon written notice to Landlord. 7. MISCELLANEOUS. Terms used in this Exhibit F shall have the meanings assigned to them in the Lease. The terms of this Exhibit F are subject to the terms of the Lease. r .•zAIA Dccu art A� 1M - 1997 Standard Form of Agreement Between Owner and Contractor where the basis of payment is a STIPULATED SUNT AGREEMENT made as of the Seventh,day of October in the year of 2004 (In words,indicate ejay,month and year) [WTWEEN4i6 owner (IYdme,tic tress and other infvrmat:'on} This document has important i1 usiness Center Ii.L.i'. legal consequences. �. a Ste.#102 Consultation with an attorney 94539 510/623.-6320 is encouraged with respect to <; its completion or modification. AtEi� le AIA Document A2g1-f997, tftetftactota General Conditions of the -00 Contract for Construction,Is ( ttme;addressitr athe :Itdnation) adopted in this document by >i ** reference.Do not use with other Utyc6li�nsiruction.Inc. general conditions unless this 690; i 1 L?rive document is modified. Flnitd§, �=95035 408-942-8200 This document has been approved and endorsed by The Associated General Contractors T'he 'rElgCt ds of America. (1Vcxme amid ldelation) `Contra CostaReAlthServices Sand Creek- 699°Park Bldg#4 171 Viand Creek Road D04/494 Brentwood CA K� The Archltet:t.is: {Name,address and other 0fprrrtation) IJevccie' �s ction Inc. 69Cf{�ilsia�tar``I'�ritve 'M vitas CA 95035 40819428200 The Owner an 0#1:ractor agree as follows. AIA Document A101?u w 1997.Copyright 01915,1918,1925,1937,1951 1956,1961,1983,1967,1374,1977,1988,1987,1991 and 1997 by The American Institute of Atchitects. All rights reserved. WARNING-This AIW Document is protected by U.S.Copyright Law snd International Trestles. Unauthorized reproduction or distribution of this AIAm Document,or any portion of It,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:46:53 on 10107/2004 under Order No.1000098320,_1 which expires on 2/1312005,and is not for resale. User Notes: (3583974924) ARTICLE"I THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement,Conditions of the Contract(General,Supplementary and other Conditions),Drawings,Specifications,Addenda issued prior to execution of this Agreement,other documents listed in this Agreement and Modifications issued after execution of this Agreement;these form the Contract,and are as frilly a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations,representations or agrtem6nts,either written or oral.An enumeration of the Contract Documents,other than Modifications,appears in Article 8. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall Frilly execute the Work described in the Contract Documents,except to the extent specifically indicated in the°Cont#ct Documents to be the responsibility of others.Perform interior remodel as directed.Tenant Irnbroveme`" 'rtatel sf of exisiiniz Building#4,Includes Int rior Hardwall Offices.Doors dr ardorC6iA oustical eil`n Fire Protech n P1 n F�VA lectrical Rou h and Finish. ed Desi n Build ortion of work for Mechanic l l `cal and-Plumbingshall b orm '.: s' c' waver on1 Iocal it of Brentwood review and ins coon will dictate.Dote it has x• .r. a...F ° ` � eility will be a State of California licensed facilit . Ct E1s10EMENT AND SUBSTANTIAL COMPLETION e€xdat �to� ent of the Work shall be the date of this Agreement unless a different date is stated b3otfttrr ion is n for the date to be fixed in a notice to proceed issued by the Owner. t J ria �f o [ri xrtejhc tt tt if it differs from the date of this Agreement or,if applicable,state that the date ill to a to tt a top °October-14 241 a ,t a egiriitneticenent of the Work,the Owner requires time to file mortgages,mechanic's liens and other se�fyrreie Owner*s time requirement shall be as follows: Y � 3. Tlt'Contta '�shall be measured from the date of commencement. h 4 )b{ . 3 3 T C)oxa (or sha11 achioue-,lttantial Completion of the entire Work not lacer than days from the date of cnmrt3e# tl ftstlows-. ' Zttie{t nulrlk �xlf ttrlar:d',§)m Alternatively,a calendar date nary be used when coordinated with the date of camffterkement.`flriless stated-elsewhere in the Contract Documents,insert any requirements for earlier Substantial CamplOtr of pertain portiais of the Work.) ttxnuary l5,'20E?5 Prn#Id to of Wbtk Substantial Completion Date 1115/05 ,,,subject to a #ht<s of this Contract Time as provided in the Contract Documents, Insert proviaris, OFiy>for liquidated damages relating to failure to complete on time or for bonus payments for early completionrthe Work.) ART[CE �t�tRACl SUM +41 Thp O yner,liall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the ti racf;Thr+ t3 itract Sum shalt be One Million Ninety Six Thousand Two Hundred Fifty Two ($1.096,252.00), subject to additions and deductions as provided in the Contract Documents. (Refer to attached Schedule A Cost Breakdown.) rt 3 AIA Docurrwnt A101*+'-1997.Copyright 0 1915,1918,1925,1937,1951 1959,1951,1953,1967,1974,1977,19801,1987,1991 and 1997 by The American Insiltute of Architects. All rights reserved. WARNING-"this AlA"Document is protected by U.S.Copyright Law and International Treaties. 2 Unauthorized reproduction or distribution of this AIA'Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent passible under the taw.This document was produced by AIA software at 15:48.53 on 10/0712()04 under Order No.i t't0009632o_t which expires on 211312065,and is not for resale. User Notes: (3503974924) §4.2 The Contract Sum is based upon the following alternates,if any,which are described in the Contract Documents and are hereby accepted by the Owner: {State the numbers or other identification of accepted alternates.Ifdecis ons on other alternates are to be made by the Owner subsequent to the execution of this Agreement,attach a schedule of such other alternates showing the amount,for each and the date when that amount expires) C3 Unit prices,if any,are as follows: Descrpption Unita Price($8.00) AR�ItrL� , P�►1(lYldV�' �'I Pi�{�Rirta�l?A�I'l�1N�"S ,)1 ttport plications for Payment submitted to the ArsOwner by the Contractor and Certificates oFpa� t ssued bytltsr; water.the Owner shall make progress payments on account of the Contract tm'UP oti r aspt� ded below and elsewhere in the Contract Documents. t2", g� oov�by each Application for Payment shall be one calendar month ending on the last day of ttieanritlt,of $'I S1 iu ftovid'd, t an Ap lication for Payment is received by the Owner not later than the 5th day of a rYto>tlt, C}wtte ll tie payment to the Contractor not later than the day of the same month.If an ►p t o0*41o>* "&}lttient is received by the Af ter-Owner after the application date fixed above,payment shall be P., Ott not t4#ex:than twenty( 20 }days after the MehkeetwQwner receives the Application for lP3 .4�eh Applccation for Payment shall be based on the most recent schedule of values submitted by the to r lit lito ago with the Contract Documents.The schedule of values shall allocate the entire Contract `among:!he v l4 portians of flier Work.The schedule of values shall be prepared in such form and supported I} uc eta to iiia itiate its aeGtird r"as the {3wner may require. This schedule,unless objected to by the j` ms call be id as a basis for reviewing the Contractor's Applications for Payment. plicatxiits f+ir Payment shall indicate the percentage of completion of each portion of the Work as of the ncl tf foci covered;by the Apglkation for Payment. 4r F'Sr1 A Subject to other provisions of the Contract Documents,the amount of each progress payment shall be c titi(iuted as , llows4„: .1 Take ttottin of the Contract Sum properly allocable to completed Work as determined by r.-.Wtiglyitig the percentage completion of each portion of the Work by the share of the Contract Sum ail(p 'ted to that portion of the Work in the schedule of values,less retainage of tenpercen7,7777 t l!eYtdiugflitnal determination of cost to the Owner of changes in the Work,amounts not in dispute shall be included as provided in Section 7.3.8 of AIA Document A201-1997, .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction(or,if approved in,advance by the Owner,suitably stored off the site at a location agreed upon in writing),less ittainage of ten percent (10 o}, .3 Subtract the aggregate of previous payments made by the Owner,and 4 Subtract amounts,if any,for which the Amhiteet wner has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201-1997. AIA Document A101 TM—1997.Copyright 011915,1918,1925,1937 1951 1959,1961,1963,1967,1974,1977,1980,19117,1991 and 1997 by The American institute Of Architects. All rights reserved. WAltt IN6:Chia AIA4'Document is protected by U.S.Copyright Low and international Treaties. 3 Unauthorized reproduction or distribution of thin A10 Document,or any portion of It,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:46:53 on 10/0712004 under Order No.1o00098820_1 which expires on 211312005,and is not for resale. User Notes: (3503974924) 5.1.7 The progress payment amount determined in accordance with Section 5.1.6 shall be further modified under the following circumstances: 1 Add,upon Substantial Completion of the Work,a sum sufficient to increase the total payments to the full amount of the Contract Sum,less such amounts as the Afehiteet- weer shall determine for incomplete Work,retainage applicable to such work and unsettled claims,and (Section 9.8.5 of AIA Document A201-1997 requires release of applicable retainage upon Substantial Completion of Work with consent of surety,if any.) .2 Add,i€final completion of the Work is thereafter materially delayed through no fault of the Contractor,any additional amounts payable in accordance with Section 9.10.3 of AIA Document A2014997. 6.118 Rli4- station of retainage,if any,shall be as follows; frit is t to dird,prao 10 So $114niial Completion of the entire Work,to reduce or limit the retainage resulting from the ptxcs erteci,iti sections 5.1.6.1 and 5.1.6.2 above,and this isnot explained elsewhere in the Contract ins h4re iiPc tstons for such reduction or limitation.) x 5 S E p i C Onlerprior approval,the Contractor shall not make advance payments to suppliers for i iateriai or gmpniettt w,hipli have not been delivered and stored at the site. 5 2�NAL PAYMENT 5 3aitalPay tt,ccsnstituting the entire unpaid balance of the Contract Sum,shall be made by the Owner to the `.1 the�ritractot has fully performed the Contract except for the Contractor's responsibility to correct atritivided in Section 12.2.2 of AIA Document A201-1997,and to satisfy other requirements, if any w,"ch extend beyond final payment;and . '.`� 2 a;i is t e fteate fttr Payment has been issued by the Afeltt-.0 . 2 2 Thi Oxix`s fr pymett to t'he Contractor shall be made no later than 30 days after the issuance of the " ems fial Ceitificate for Payment,or as follows: N&",, twenty(20)da s CftiLiWgift of Completion has been recorded ARTICLE 8 TERMINAtIt3N OR SUSPENSION k!T he Cpptract tray be terminated by the Owner or the Contractor as provided in Article 14 of AIA Document A201-19971,° 8.2"The Woi�k inlay be sSid*niled by the Owner as provided in Article 14 of AIA Document A201-1997: ARTICLE I LANEOUS PROMIONS 7:1 Where refertscei ii made in this Agreement to a provision of AIA Document A201-1997 or another Contract Document,the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents—,, 7.2 ayntt—doe and unpaid under the Contract shall bear interest from the date payment is due at the rate stated belvw� r tt#me#bsence thereof,at the legal rate prevailing from time to time at the place where the Project is locate1-7 d:._ (Insert rate of interest agreed upon, if any.) AIA Document A10i m—1997.Copyright X51915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1960,1987,1991 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIAe Document is protected by U.S.copyright Lew and International Treaties. 4 Unauthorized reproduction or distribution of this AIA*Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:46:53 on 10!0712004 under Order No.10000963r^.0_1 which expires on 2/13/2005,and is not for resale. User Notes. (3503974924) Ten percent f 10%)Vgr annum (Usury laws and requirements under the Federal Truth in Lending Act,similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places of business,the location of the project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications,and also regarding requirements such as written disclosures or waivers.) 7.3 The Owner's representative is: (Name,address and other information) f � Mike Cook t Sandreek Business Center H.L.P. ui''sco Lane Ste#2D2 1~resrtiii t.CA 34539 5101623-6320 -14 I1tCs` trettsrns tative is: (Name,ii r ress int otic I ffiN motion) Btt 3� iction Inc, # Gibraltat=?rive LNf_p s�"A 95035_ -- _ _ 408.942-8200 :�§7x the'Own t>isr;he Contractor's representative shall be changed without ten days written notice to the i 7'S'6&4 provisions Zlijs reccrrttmeiidd hat earth cake nsttrii''ce which is not a re uirernent under this contract be purchased bthe ARTICLE''8 ENU ORATION QF CONTRACT DOCUMENTS VT he:Contract Documents,eaecept fir Modifications issued after execution of this Agreement,are enumerated as fc�Ila�a�•' 6:81.1 T1ie Agreement is this executed 1997 edition of the Standard Form of Agreement Between Owner and Cotstractor,AIA I�ocuriient A01-1997. 8x12 The General C,on4ttttt hs'dig the 1997 edition of the General Conditions of the Contract for Construction,AIA 1�vcitzrnextt,.At31-1}97.4:: 1.3 The Supp ententary and other Conditions of the Contract are those contained in the-Project Manual dated I"and are as fdllpws Document TWe Mages $1 TheSp %fications are those contained in the Project Manual dated as in Section 8.1.3,and are as follows: (Either lisi thea eciflcations here or refer to an exhibit attached to this Agreement.) $606" TWO des f3 8.1.5 The Drawings are as follows,and are dated unless a different date is shown below: (Either list the Drawings here or refer to an exhibit attached to this Agreement.) 4= AIA Document A101 TM--1997.Copyright 01915,1918,1925,1937, I:ttctune1951 1955,1961,1963,1967,1974,1877,1980,1987,1991 and 1997 by The American institute of Architects. All rights . WARNING:This AIW nt is protected by U.S.Copyright Law and International Treaties. v Unauthorized reproduction or distribution of this AIA*Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the low. This document was produced by AIA software at 15:46:53 on i W07/2004 under Order No.100009020_1 which expires on 211312005,and is not for resale. User Notes: (3503974924) Nt of T41e Date (Enter List of Drawings Here or Refer To Attached Exhibit"A") The Addenda,if any,are as follows: Number Date Pages Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 8. §1.1.7 Other,documents,if any,€arming part of the Contract Documents are as follows: (List here any additional documents that are intended to form part of the Contract Documents.AIA Document A201- 097 provides that bidding requirements such as advertisement or invitation to bid,Instructions to Bidders,sample forms and theZontraetor`s bid are not part of the Contract Documents unless enumerated in this Agreement. They should be'lx '404 here'only if intended to be part of the Contract Documents.) Thts a"men fs enter d alto as of the day and year first wrijae and is executed in at least three original c0Ple14,gf whish one is 6.bre delivered to the Contractor,one thitect for use in the administration of the dttzhct,grid,the'rerti�ifitter to the Owner. .' f1lNERfSignatitre} CON7l Iett, tore} mess Cixnter•H.L•P• G Epresident (Prtt#tti al ae an x'fit e) (Printed r me and title} � , e`4 wo AIA Document A101 Ta—1997.Copyright 0 1915,1918,1925,1937,1951 1958,1951,1983,1967,1974,1977,1960,1987,1991 and 1997 by The American Institute of Architects. All rights reserved. WARNING.This AIAd Document is protected by U.S.Copyright Law and international Trestles. Unauthorized reproduction or distribution of this AIA*Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:46:53 on 10107/2004 under Order No.1000098320_1 which expires on 2/13/2005,and is not for resale. User Notes. (3503974924) JOB#: 02-429 SITE.County Health Dept. AREA: 10,000 DATE: 7123/04 rev 9/21104 SCHEDULE"A"COST BREAKDOWN ITEM TOTAL 1 SUPERVISION&LAYOUT $ 21,084 2 TEMPORARY FACILITIES $ 3,110 3 CLEAN-UP $ 9,282 4 CARPENTRY $ 5,286 5 ROOFTOP EQUIP.SCREEN allowance $ 33,304 6 MILLWORK $ 61800 7 Piam work,surfaces $ 65,325 8 Plam upper&lowers $ 52,520 9 WOOD DOORSJFRAMES HDWR $ 58,050 10 BACKING&ANCHOR SHELVES $ 4,722 11 GLASS/GLAZING $ 5,400 12 mod.Entry drs $ 10,500 13 STEEL SUPPORT BKTS $ 3,064 14 MIRRORS $ 1,650 15 BATT INSULATION R-19 Q calling&wails $ 91000 16 METAL STUDS&DRYWALL $ 103,200 17 METAL STUDS DEMISING $ 5,610 18 ACOUSTICAL CEILING $ 48,700 19 CARPET $ 9,130 20 V.C.T.&sheet vinyl $ 21,450 21 BASE $ 4,500 22 CERAMIC TILE $ 10,880 23 PAINTING $ 11,400 24 TOILET ACCESSORIES $ 4,500 25 TOILET PARTITIONS&FRP $ 6,750 26 CORNER GUARDS $ 4,410 27 LOCKERS $ 1,375 28 FIRE EXTINGUISHERS $ 1,254 29 SAWCUT&CONCRETE $ 11,900 30 REPLACE CONCRETE $ 4,080 31 PLUMBING floor mounted W.C. $ 118,250 32 roof top units,gas&cond. $ 12,800 33 H.V.A.C. 6 zones,40T $ 109,000 34 roof patch $ 14,400 35 FIRE SPRINKLERS $ 19,500 36 ELECTRICAL $ 112,500 37 Phone Data $ - 38 Fire Alarm $ 15,730 39 ROOF FRAMING 6 units $ 8,758 40 PROJECTION SCREEN wall mount $ 956 41 Window blinds $ 5,250 42 entry feature(allowance) $ 10,000 43 remove rear storefront drs $ 2,625 44 remove truck doors $ 44,125 SUB TOTAL $ 1,011,918 CONTRACTORS O.H.&PROFIT $ 40,477 ARCHITECTURAL&ENGINEERING $ - TEST/INSPECT._.- $ PLANS $ 3,500 PERMITS&FE€S---> allowance $ 10,000 CONTINGENCY 3% $ 30,358 JOB TOTAL $1,098,252 Excludes: Tenant signage Work to be complete prior to 1/01/2005 { A Includes:Ducted return air Ftusharniters � Recirculation of hat water 9/21/2004 OSHPD Design criteria levet 3 local review&Inspection 1 EXHIBIT"AT, MATE. 10/7/2004 PROJECT: Contra Costa County Health Services Dept. ADDRESS: 171 Sand Greek Rd., Brentwood DCI JOB NO: D04/494 Drawings by : RMW SHEET N4. TITLE DATE-REV G1.0 Coiver Sheet, Project Team, Vicinity Map 917/04 G1.1 9/7/04 X G121 General Notes and Specifications 917/04 T G122 Specifications 3/7/04 G123 Specifications 9/7/04 G1.3 Code Compliance 3/7/04 A1.0 Site Plan Path of Travel 917/04 A2.1 Partition Pian 9/7/04 A2.2 Reflected Ceiling Pian 9/7104 A2.3 Finish Pian 9/7104 A6.1 Enlarged Plan and Interior Elevations '917/04 A6.2 interior Elevations 9/7/04 A6.3 Interior Elevations 917104 A6.4 Enlarged Plan and interior Elevations 9/7/04 A6.1 Door Schedule and Details 96/04 A9.1 Partition Details 917/04 A9.2 Ceiling Details and Misc Details 9/7104 A9.3 Millwork details 9/7/04 EXHIBIT G-1 LANDLORD'S WAIVER This Landlord's Waiver and Consent Agreement (`:Agreement") is made and entered into as of , 2004, by and among , ("Lessor"), CONTRA COSTA COUNT'`, a political subdivision of the State of California ("County") and ("PFC"). Concurrently herewith, Lessor, as lessor, and County, as lessee, have entered into a lease dated October 5, 2004 (the "Lease"), pursuant to which Lessor leases to County and County leases from Lessor that certain premises, consisting of approximately 10,052 rentable square feet of office space, commonly known and designated as 171 Sand Creek Road, Building 4, Unit A, Brentwood California (the "Premises"). A copy of the Lease is attached hereto as Exhibit A. Pursuant to the provisions of Paragraph 8.1 of the Lease, Lessor has agreed to construct or install, or cause to be constructed or installed, certain leasehold improvements in the Premises, which leasehold improvements are identified on those certain plans and specifications prepared by RMW Architecture and Interiors, dated September 7, 2004 (the "Tenant Improvements"). ("PFC") has entered into or intends to enter into a Master Lease/Option Agreement (the "Master Lease") with the County and, in connection therewith, PFC will be financing or providing funds to pay the costs of constructing or installing the Tenant Improvements. In connection with such PFC financing, the County shall grant PFC a security interest in the Tenant Improvements. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the herein named parties agree as follows: 1. Lessor owns that certain building (the "Building") located at 171 Sand Creek Road in the City of Brentwood, County of Contra Costa, State of California, as more particularly described in the Lease. 2. As of the date of this Agreement, Lessor represents that it has received no written notice from the County that Lessor is in default in the performance of any of its obligations under the Lease. To the actual knowledge of Lessor, Lessor has not committed any breach of any of its obligations under the Lease which may, with the giving of notice or passing of time or both, become an event of default thereunder. 3. As of the date of this Agreement, to Lessor's actual knowledge, the County is not in default in the performance of the Lease or any provision thereof, nor has it committed any breach thereof which may, with the passing of time or the giving of notice or both, become an event of default thereunder or otherwise permit Lessor to terminate the Lease. 4. PFC and. County acknowledge that, in connection with the funds to be provided by PFC to pay costs of the Tenant Improvements, County has executed or will be executing the Master Lease pursuant to which, among other things, a security interest will be granted to PFC to the Tenant Improvements to be located on or in the Premises, and that upon the occurrence of certain events and without the payment of further consideration, PFC may, among other things, take possession of the Leasehold Improvements (subject to the provisions of this Agreement). 1SLF`,526459,5 _1- 05-090703987015 LANDLORD'S WAIVER Lessor hereby disclaims any interest in the Tenant Improvements (except as otherwise provided in paragraphs 7 and 8 below), and consents to the granting of the aforementioned security interest in and to the Tenant Improvements to PFC (subject to the provisions of paragraph 13 below). If, within the time required by paragraphs 7 and 8 below, the County or PFC fails to remove all or any portion of the Tenant Improvements from the Premises, then, subject to paragraphs 7 and 8 below, Lessor may exercise any and all rights it may have under the Lease or under this Agreement and/or at law or in equity with respect to the Tenant Improvements. In no event shall PFC have, or be deemed to have, any security interest or lien on any tenant improvements installed in the Premises at the expense of Landlord. Notwithstanding the foregoing, the provisions hereof and the rights granted to PFC shall only apply to portions of the Tenant Improvements consisting of equipment, furnishings and trade fixtures that can be removed from the Premises without material damage thereto. 5. If and when PFC exercises any of its remedies under the Agreement with respect to the Tenant Improvements, Lessor agrees that PFC may, at its option, (a) store the Tenant Improvements on or in the Premises during the term of the Lease, and/or (b) enter upon the Premises to inspect or remove the Tenant Improvements during the term of the Lease. PFC shall, at no cost to Lessor, restore any damage caused by the removal of the Tenant Improvements by PFC or any of PFC agents, employees or contractors and PFC shall indemnify, defend and hold Lessor harmless from and against any damages, costs (including but not limited to attorneys' fees) or liability related to the entry of the Premises by said parties. 6. Provided PFC obtains County's consent thereto, PFC may enter upon the Premises to inspect the Tenant Improvements, or any portion thereof, at any time during the term of the Lease, subject however, to satisfaction of the express conditions precedent that (i) PFC shall notify Lessor in writing at least three (3) business days prior to any such entry to remove any of the Tenant Improvements, (ii) in no event shall PFC effect a forced entry upon the Premises and PFC shall not disturb or otherwise violate the rights of Lessor, County or any other tenant in the Building, (iii) any such inspection of the Tenant Improvements or any portion thereof(or removal of the Tenant Improvements, or any portion of such Tenant Improvements) shall be at PFC'S sole cost and expense and in accordance with all applicable laws, ordinances and building codes then in effect, (iv) PFC shall repair any physical damage to the Premises caused by removal of the Tenant Improvements, or applicable portion thereof, in accordance with all applicable lavas, ordinances acid building codes then in effect, and (v) PFC shall indenmify, defend, protect and hold Lessor and the Premises, the Building and the land upon which the Building is situated free and harmless from any actions, claims, damages, demands, injuries, liabilities, losses and expenses (including, without limitation, attorneys' fees) arising out of the exercise of any of PFC'S rights under this Agreement. PFC shall not conduct any public auction of the Tenant Improvements or any portion thereof from the Premises. 7. If the Lease expires at its natural expiration (which for the purpose of this Agreement includes natural expiration at the end of any option or extended term of the Lease) and PFC has not removed the Tenant Improvements from the Premises, Lessor may, at its election, complete the removal of the Tenant Improvements and repair at its expense all physical damage to the Premises caused by such removal in accordance with all applicable laws, ordinances, and building codes then in effect prior to expiration of the Lease. -2- X LANDLORD'S WAIVER 8. If Lessor exercises its right to terminate the Lease prior to the scheduled expiration of the term by reason of County's default or any other cause specified in the Lease, Lessor shall give written notice to PFC of such termination (the "Termination Notice") and the effective date thereof(the "Lease Termination Date"). If the Lease Termination Date is less than thirty (30) days after the date the Termination Notice is delivered to PFC, PFC shall then have the election, upon written notice to Lessor given not later than ten (10) days after receipt of the Termination Notice, either (i) to remove or cause to be removed from the Premises prior to the Lease Termination Date all Tenant Improvements; or (ii) to enter the Premises on or after the Lease Termination Date for the sole and exclusive purpose of removing the Tenant Improvements, which right of entry shall continue for a reasonable period specified in PFC'S election notice, but in no event for more than thirty (30)days following the date the Termination Notice is delivered to PFC. If PFC fails to give written notice of election to Lessor within said ten (10) day period, PFC shall be deemed to have elected to remove all Tenant Improvements from the Premises prior to the Lease Termination Date. If PFC gives notice of election to remove all the Tenant Improvements from the Premises prior to the Lease Termination Date, PFC shall complete such removal and repair, at its expense, all physical damage to the Premises resulting therefrom, and such removal and repair work shall be completed prior to the Lease Termination Date and shall be subject to conditions (ii), (iii) (iv) and(v) set forth in paragraph 6 above. If PFC elects to enter the Premises on or after the Lease Termination bate, and gives timely notice thereof to Lessor as provided in this Paragraph above, such entry shall be subject to the following terms and conditions; (a) PFC shall pay to Lessor in cash not later than the Lease Termination Date an amount equal to the product obtained by multiplying the number of days included in the Post Termination Entry Period (defined below) by 1/30" of one hundred fifty percent (1.50%) of the sum of monthly base rent plus items of additional rent including operating expenses payable under the Lease immediately prior to the Lease Termination Date. Failure to timely pay such amount to Lessor shall be deemed an election by PFC not to remove the Tenant Improvements during the Post Termination Entry Period, whereupon any Tenant Improvements not removed by the Lease Termination Date may be deemed abandoned, at the election of Lessor. "Post Termination Entry Period" shall mean the period cornlnencing on the Lease Termination Date and ending on the earlier to occur of (i) the last day of the entry period designated in PFC'S election notice, or (ii)thirty(30) days following delivery of the Termination Notice to PFC. (b) PFC shall pay for all utilities consumed in the Premises during the Post Termination Entry Period by PFC, within thirty (30) days after Lessor's demand for payment. (c) Any Tenant Improvements not removed by the end of the Post Termination Entry Period may be deemed abandoned, at the election of Lessor. (d) Such entry shall be subject to conditions (ii), (iii), (iv) and (v) set forth in paragraph 6 above. 9. County hereby consents to the terms and conditions of this Agreement. In no event shall Lessor have any liability to County for the acts or omissions of PFC or any of its agents, employees, contractors or representatives. -3- � * LANDLORD'S WAIVER. 10, If any party hereto shall bring an action to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to its costs of suit and reasonable attorneys' fees in addition to any other relief that may be granted. 11. Any notice required or desired to be given hereunder shall be in writing and shall be personally served or given by mail. Any notice given by mail shall be by certified or registered mail, return receipt requested, postage prepaid, and shall be effective on the date of receipt or refusal by the addressee, as specified on the return receipt, or, if no such date is specified on the return receipt, seventy-two (72) hours from the time when such notice was deposited in the United States Mail, postage prepaid. Any party may change its address for purposes of notice by giving written notice of such change of address to the other parties in accordance with the provisions of this paragraph. As of the date of execution of this Agreement, the addresses of the parties are as set forth below: PFC: LESSOR.: COUNTY: CONTRA COSTA COUNTY General Services Department Lease Management Division 1220 Morello Avenue, Suite 100 Martinez, CA. 945534711 Facsimile: (925) 313-7299 12. This Agreement shall be interpreted under the laws of the State of California, and shall inure to the benefit of and be binding upon the successors, heirs and assigns of the parties hereto, 13. This Agreement creates no lien on the Premises (or the land or parcel upon which the Premises is located), the County's leasehold interest in the Premises and Lessor does not consent to the creation of any lien on the Premises (or the land or parcel upon which the Premises is located), the County's leasehold interest in the Premises. Upon termination of this Agreement, Financing Entity will, at the request of Lessor, execute and deliver such documents, in recordable form., as may be required to evidence such termination. If requested by any beneficiary of a trust deed encumbering the Premises, PFC will execute and deliver, in recordable form, such documents as may be required by such beneficiary to confirm that this Agreement is -4- LANDLORD'S WAIVER not a lien on the Premises (or the land or parcel upon which the Premises is located) or the County's leasehold interest in the Premises. 14. Each party represents to the other that it has full power and authority to execute and deliver this Agreement and to bind such party hereto. 15. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and together shall constitute one instrument. 16. Lessor is making this Agreement with the understanding that PPC is contemplating providing funds to pay costs of the Leasehold Improvements and, if PFC does so, it will do so in reliance on this Agreement. (signature page(s)follow) LANDLORD'S WAIVER IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first written above. LESSOR.: By: Printed Name: Title: ORIX: PFC By: Printed Name: Title: COUNTY: CONTRA COSTA COUNTY, A political subdivision of the State of California By: Director of General Services APPROVED AS TO FORM: Silvano B. Marchesi, County Counsel By Deputy -6- h LANDLORD'S WAIVER EIIT AA LEASE [To be inserted] ISLFM6459.5 05-090703987015 ti .1 EXHIBIT G-2 MORTGAGEE'S WAIVER To induce Financial Institution ("Financial Institution") to enter into a Master Lease/Option Agreement (the "Master Lease") with Contra Costa County, California (the "County"), respecting the property described therein (the "Leasehold Improvements") and to provide funds to pay costs of the Leasehold Improvements, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby certifies and agrees for the benefit of Financial Institution, its participants, successors and assigns,as follows: I. The undersigned holds a deed of trust and mortgage lien on certain premises located in Contra Costa County, California, as described in Exhibit A hereto(the"Premises"), pursuant to a Deed of Trust filed with the Contra Costa County Recorder's Office on , as Instrument No. - 2. The undersigned acknowledges that, in connection with the funds to be provided by Financial Institution to pay costs of the Leasehold Improvements, County has executed or will be executing the Master Lease pursuant to which, among other things, a security interest will be granted to Financial Institution in and to the Leasehold Improvements to be located on the Premises, and that upon the occurrence of certain events and without the payment of further consideration, Financial Institution may, among other things, take possession of the Leasehold Improvements, which shall be accomplished in a commercially reasonable manner; provided, however, any damage caused by the removal of the Leasehold Improvements or by the negligence of Financial Institution, its agents, employees or contractors shall be payable by Financial Institution and Financial Institution shall indemnify, defend and hold the undersigned harmless from any such damages, costs (including but not limited to attorneys' fees) or liability. The undersigned hereby disclaims, waives and releases any interest, title, lien or claim in the Leasehold Improvements, whether or not all or part of the Leasehold Improvements may be considered to be "fixtures" under any provision of law or otherwise, and consents to the granting of the aforementioned security interest in and to the Leasehold Improvements to Financial Institution. Notwithstanding the foregoing, the provisions hereof and the rights granted to Financial Institution shall only apply to portions of the Leasehold Improvements consisting of equipment, furnishings and trade fixtures that can be removed from the Premises without material damage thereto. 3. The undersigned is making this Waiver with the understanding that Financial Institution is contemplating providing funds to pay costs of the Leasehold Improvements and, if Financial Institution does so, it will do so in reliance on this Waiver. Dated: , 2004 Mortgagee: By: Printed Name: Title: l �`°` MORTGAGEE'S GEE'S WAIVER By: Printed Name: Title: 2 , MORTGAGEE'S WAIVER ACICgO WLEDGMIENT STATE OF ) ss. COUNTY OF } On this day of , 2003, before me, the undersigned, a Notary Public, appeared , to me personally known, who, being by me duty sworn, did say that is the of , a corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors, and said acknowledged said instrument to be executed for the purposes therein stated and as the free act and deed of said corporation, IN 'WITNESS WHEREOF, I have hereunto set my band and affixed my notarial seal the day and year last above written. Typed or Printed Name: [SEAL] Commissioned in County My commission expires: MORTGAGEE'S WAIVER EXMIT A LEGAL DESCRIPTION [To be inserted] 4 � CONTRA COSTA Co Recorder Office RECORDED AT THE REQUEST OF: STMG L. UEIR Clerk-Recorder DOC— 200 --0475674-00 WHEN RECORDED RETURN TO: Check Number Tuesday, SEP 23, 2003 09:43;00 50,W Cjgt hV.,.AA,, +CA J�ZILP MIC $1.00:MOD $C0011REC $8.00 TCF $3.08, Ttl Pd $16.00 W4811763856 Lk Ct4 s�C\ DECLARATION FOR DECLARANT DESIGNATION Pursuant to Section 2.14 of the Declaration of Covenants, Conditions and Restrictions of Sand Creek Business Center, recorded on August 8, 2002, as Instrument No. 02-277261, in the Official Records of the County of Contra Costa, State of California, SAND CREEK BUSINESS CENTER I, L.P., a California limited partnership,as Declarant,hereby designates SAND CREEK BUSINESS CENTER 11, L.P.,a California limited partnership("Successor Declarant")as a "Declarant," as that term is defined in said Section 2.14. The undersigned Successor Declarant hereby assumes the rights and duties of Declarant as to the real property acquired by Successor Declarant in the City of Brentwood, County of Contra Costa. State of California, described as follows: Parcels A. B, C, D and E, as shown on Parcel Map Su ivision MS 365-02 ("Map"), filed for record on2�p� in Book of Maps at Pages through_2k. inclusive, in t�e f rcial'ewcords of the County of Contra Costa,State of California. Dated: ` ,,944 21& , 2003 DECLARANT. DECLARANT: SAND CREEK BUSINESS CENTER 1, L.P., SAND CREEK. BUSINESS CENTER 11, L.P., a California limited partnership a California limited partnership By: Sand Creek Business Center Management, By: Sand Creek Business Center Management, Inc., Inc., a California corporation, a California corporation Its General Partner By,Its General Partner I3y. ck_ , - - Arthur L. Lorenzini,,J t Arthur L. Lorenzin"Its , ent Jr. 08/26/83 LITTLE & SRt'UTt? A77`i7XNE}5'AT t,A1u 1901 OLYMPIC BOULEVARD.#100 WALNL,*r CROCK.CA 94SOG-5024 M 944'= i »t 4 475674 -1 a STATE OF CALIFOR IA ss. COUNTY OF----( . C ' On ` 11 2Li beforee, COMI ���3� personally appearedt � personal •known to me (or proved to me on the basis of satisfactory evidence) to be the ppersons) whose nam lis) 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 seat Aw_wly �04H1, �' JONf6 Notar Public ,. Comm,if 1335461 ttr�y Y" NOTARY NSUC•CALIFORNIA �1 C M' too tj Capt} M,eocnm.f,prm ba.14,aoas STATE OF CALIFORNIA ss. COUNTY OF On before me. personally appeared personally known to me (or proved to me on the basis of satisfactoryevidence) to be the erson(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. Notary Public tib/26/03 LITTLE & SAPUTO A770MEYS AT GAtY 190#OLYMM BOULEVARD,Yt00 WALNUT CREEK,CA 945%-5024 Oa 944-5000 1'�b � r t DECLARE UNDER PENS 475674 OF PERJURY THAT THIS IS RECORDED AT THE REQUEST OF: A TRUE AND CORRECT COPY WHEN RECORDED RETURN TO: DATE:Cl x w fk ot,q t;3e. DECLARATION FOR DECLARANT DESIGNATION Pursuant to Section 2.14 of the Declaration of Covenants, Conditions and Restrictions of Sand Creek Business Center, recorded on August 8, 2002, as Instrument No. 02-277261, in the Official Records of the County of Contra Costa, State of California, SAND CREEK BUSINESS CENTER I, L.P., a California limited partnership,as Declarant, hereby designates SAND CREEK BUSINESS CENTER 11, L.P.,a California limited partnership("Successor Declarant")as a"Declarant," as that term is defined in said Section 2.14. The undersigned Successor Declarant hereby assumes the rights and duties of Declarant as to the real property acquired by Successor Declarant in the City of Brentwood, County of Contra Costa, State of California, described as follows: Parcels A, B, C, D and E•, as shown on Parcel Map Subdivision MS 365-02 ("Map"), filed for record on , in Book of Maps at Pages through , inclusive, in the Official Records of the County of Contra Costa,State of California. Dated: WA 2003. DECLARANT: DECLARANT: SAND CREEK BUSINESS CENTER 1, L.P., SAND CREEK BUSINESS CENTER 11, L.P., a California limited partnership a California limited partnership By: Sand Creek Business Center Management, By: Sand Creek Business Center Management, Inc., Inc., a California corporation, a California corporation Its General PIts General Partner By- C�__:aBy` Y• Arthur L. Lorenzini, t Arthur L. Lorenzinni�t`its ent Jr, 08/26/03 LITTLE & SAf' F rC7 AT7VRNE}5 nr LItN 001 OLYMPIC BOULEVARD,9 too WALNUF CRUA.CA 94595.5029 (925)944.5000 C j 4' 5674 STATE OF CALIFOR IA ss, COUNTY OF �► - 0n2G before me, � � - -, personally appear # L �ic =jVT _' -.---, personal/ known to me (or proved to a on the basis of satisfactoryy evidence) to be thepersan(s) wose nams} is/are subscribed to the within instrument and acknowiedged to me that he 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. NES Not Public comm.A 1336461 MARY PUSLIc•cX.I ORMA C461cf Com coaoty 'My' t.mm,Expmf oa ts,200, STATE OF CALIFORNIA ss. COUNTY OF On before me, personally appeared personal/ known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) an 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, Notary Public 80 OF DOENT 08/26/08 LITTLE & SAPUTU ATIOVEYSArlAw 1.901 OLYMPIC BOULEVARD,f 100 WALNUT CREEK CA 9453G-5024 Wd; e t tie.CERTIFY THIS TO 9fE-A TRUE A,yp Covtq,:CT GOP)( OF THE ORIGINAL . L3i.�l.:t1t»tC34T' R�C:C��fiaED RECORDED AT TM REQUFST OF: � ViEWN RECORDED RUM TO: SERIES � OF OFFICIAL ' C Sand Creek Business Center I,L.P. tomm 46752 Mission Blvd., Suite "E" Fremont, CA 94539 DECLARATION OF COVENANTS CONDITIONS AND RESTRICTIONS . OF SAND CREEK BUSINESS CENTER A Common Interest Development If this document contains any restriction based on race,calor, religion, sex, familial status, marital status, disability, national origin,or ancestry,that restriction violates state and federal fair housing laws and Is void, and may be removed pursuant to Section 12956.1 of the Government Code. Lawful restrictions understate and federal law on the age of occupants In senior housing or housing for alder parsons shall not be construed as restrictions based on familial status. LUTLE&sAPUTO �rrr�xrr�rs�rLaw 1901 OLYMPIC BOULEVARD,/E00 WALNUT CCIUMX.CA 94596-5024 (92'0944-5000 ' ' ' ` ' , . ' INDEX . DECLARATIONDECLARATIONK�~�F COVENANTS. � CONDITIONS AND RESTRICTIONS K��� ~�� SAND CREEK BUSINESS TER/ ` � A Common Interest , % . . . . . . ' ' . . 1.1 . . . . . . . . . . lllProperty Owned by Declarant . . . , . ' , ' . . . . . ' . . . . . . , . . - . . , . ' . . 1 ll.2 , . . ' . . . - . . . . ^ . . . . . ` . , , . , . . , , ^ ^ , I . ' . . . . .. . . . ' `. . . . , . ^ . . . ' . . '. ' , ' l 1.2 APPLICA131LITY OF 1'3 . . ' 2 1.3.1 . , . ' ' . . . . ' ~ ` ' ' . . ^ . , . . ^ . ^ ' . ^ . ' ' . ' ^ 2 1 1-- ----'-- � . 1.3.4 ' , , II 2 . . . . . , . . ' ' ' . . , . ' . - � ' ' . , ' ' ' . . . . 2 2.2 ADDITIONAL PROPERTY . ' ' . ' ' ' .' ' ' . ' . ' ' . ' . . , . ^ ' `^ . . ' ' 2 . . ' . , . . ' . ' . . . , . . . ' . . . . . , . . ' . . . % 2.4 ARTICLES . . . . , . ' . , . ' . . . . ' .. . . ' — ~ . . . ' � . 2 2. . , . . . . ' ' . . ' . . . . ' . . ' ^ ' ' , ' ' ' . , . 2 , 23 ^ . . . . . , . . . , ^ . , , - . . . _ . . ' _ . . . . _ ` ^ _ ^ , . , , ^ . , . ^ ' _ _ . ^ _ ^ _ ^ 2 2]8 BUDGET . ~ . . .� , . . ^ . . . . ^ ` ^ , . ^ . ^ ^ . ^ ^ , . ` . . ^ ^. , . ' . . , ` ` ^ ^ . 32.9 BUILDING . . ' . ` . ` ' ' . . . . ^ '. . . . ' ' . . . . . . ` ' . . ` . ` . 3 . �� , . . . . ^ . . . . .�. . . , . - . . . . ' . . ' . . . . . . . 3 2.1 - ^ . , � , ' . ^ . . . . . . . . , , ' . . , . . � . . . � . . 3 ' 2 ' . . , . . ' , . . , _ . . . ,�. ^ . ' ^ , _ ^ . ' _ . . , . ^ 3 13 . . . . . . . . ^ . . . . . . . . . . ` .. . . . . , . . . . . 3 Z. . . . . . . . . . . . . . . . . . . ' . . ' '^ ' ' ' . . . . ' , . . . . . ' . ' . ' . . . , 3 2L 3 2.16 3 2L17 EXCLUSIVE LOADING AREAS . . . . . . . . ' ' . ' . . . ' . . ' . . . ' ' , 3 2.18 EXCLUSIVE PARKING AREAS ' . . . . . . ' , .. . . ' ' . . . .^ - . . ' ' , . . '. , . . . . 3 2.19 PIRST MORTGAGE ^ . ^ ^ ^ . ' . ' . . ' ' ' ' . . . ' ., . . ' . ' ' ' ' . . ' . ' . ^ ' ' . . � 2.20 FIRST MORTGAGEE ' ' ^ ' ^ ' ~ ' ' `' ^ ` ^ ~ '' ' ' ' ' ' ^ ' ' ^ ~ ' ` ' ' ' ` ' ' ^ ' ` ' ; 3 2.21 IMPROVEMENTS . , , . ' ' ^ ' ^ ' ^ . ... ' ' 3 2.22 INVITEE . , . . . . , . . . . . . . . . . . . . , , . , . . . . . . . . . ^ . . . , . . 4 . . , . . . . . . . . . . . , , . . , . . . , . . . , . . . . ' . . ' . . . . .4 . . . . , . . . . ' . ' . ' . ' ' , ' . . , ' ' ^ `. ' . . ^ ' ' . ' ^ . . . . � 2.25 MORTGAGE . . . , . . . . . , ., . . ^ . , . . . �.. , . . . . . . . . . , . . . . . ^ . 4 2.26 MORTGAGEE . ' . . . . . . . . . ^ . . ' . ' . . . . - . ' . . , . .�. . . . , , ^ . . ' . 4 27 NOTICE AND.HEARING ^ ` . ' ' ' . . . . . ~ , . ' . ' . ' , ^ , ' ~ ' ' .- . . ' - , . ' ' . ' ' ^ . 2.29 OWNER ^ ' ^ ` ` ^ ' ' ` ' ` ' ' . ' . ^ . . . .. , . . . . . . ~ . . . . .�, , ' . . . . . . . . , . . . . 4 2.29 PARCEL , . . . ' . . . , . . , . . . ' , . . . . . , . . . ' . � . , . . ' , ' ' ^ . . . . . . . . . . ^ . 4 2 .�' ^ . . .. . ^ . ' . , . . . . . . . . . . . ' , . ' . , . . . . . . .. . . . . . , . . . . , . , 4 � ` ^ . . . ' . . . . . . ^ , . . . . . . ' . . ' . . . ^ . . . . . . , . , . , . . . 4 2.32 PROJECT DOCUMENTS . ' . ., . . . . . - . . ' ' ' ' . ' . . ' . . . . . . ... . . , . . - . . . . 4 , 2.33 ' . ' . . . . . . . . , ` . , . . . . . . . . . . , . . . . . . . . . . - . . . ' . - . . . ^ . . , . 4 ` 3.34 SUBJECT PROPERTY . . . . . ' . , ' . ' . . . . . . . ' . . ' . ' ^ ' . ' . ' . . . ' . . . . ' . . . 4 � 07Y19/02 LITTLE uApnrOATMMEYSATLAW ' ~"=`=~"BOULEVARD.1100 ~^^~~^ w251944-mm^ � ` �� � III OWNERSHIP AND EASEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.1 NON-SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . , . 5 3.2 OWNERSHIP OF PARCELS . . . . . . . . . . . : . . . . . . . . . . . . . . . . . 5 3.3 OWNERSHIP OF COMMON AREA . , . . . . . . . . . . . . . . . . . . 5 3.4 EASEMENTS . . . . . . . . . . . . . . . . . . . . . :. . . . . . . . . . . . . . . . . 5 3.4.1 Adjoit Pro erty . . . . . . . 5 3.4.2 Annexation of Additional Property . . . . . . . 5 3.4.3 Association . . . . . , . . . . . . . . . . . . . . . . . . , . . . . . . . 5 3.4.4 Association Maintenance Areas . . . . . . . . . . . . . . . . . . . . . > . . . . 5 3.4.5 Common Area , . . . . . . . . . . . . . . . . . 5 3.4.6 Easement Deeds . . . . . . . . . > . . . . : : > . . . . . . . . . . . . . . . . . . . 6 3.4.3 Encroachment . . . . . . . . . . . . . . . . . . . . 6 3.4.5 Governmental.Entities . . . . . . . . . . . . . . . . . . . . . . . . 6 3.4.9 Map . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . 6 3.4.10 Exclusive Loading Areas . . . . . . . . . , . . . . . . , . . . . . . . . . . . 6 3.411 Exclusive Parking Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.4.12 Storm Drains . . . . . . . . . . . . . . . , . . . . . , . . . . . . 6 3.4.13 Sulrrort,141aintenance and Repair . . . . , , . . . _ . . . . . . . . . . . . . 7 3.4.14 Utilities . . . . . . . . . . . . . . . . . . . . . . . . > . . . , . . . . . . 7 IV USE RESTRICTIONS. . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . > . . . . , . . . 7 4.1 ALTERATIONS+ . . . . . . , . . . . > . . . . . . . . . . . . . . . . . . . . > , , : . . . . . . 7 4.2 ANIMALS . . . . . . . . . . . . . . . . . . . . . . * '. ' 7 . 7 4.3 ANTENNAS AND SATELLITE DISHES . . . . . . . . . . . . > . . . . , . , , . , 7 4.4 ASSOCIATION MAINTENANCE AREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4.5 EXTERIOR LIGHTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4.6 INVITEES . . . . . . . . . . . . . . . . . . . > . , . . . . . . , . . , . . . . . 4.7 MINERAL EXPLORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4.8 PARKING . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 8 4.9 RENTAL OF PARCELS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4.10 RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4.11 SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4.12 STORAGE OF WASTE MATERIALS . . . . . . . . . . . . . . . . . . . . . . . : : . . 8 4.13 USE AND,OCCUPANCY OF BUILDINGS� . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4.14 USE OF COMMON AREA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 V M'ROVEMENTS . . . . . . . . . . . . 9 5.1 MAINTENANCE OFA COMMON AREA AAND Il1+i1�ROVFIiIEN'TS� . . .. . . . . . . . . 9 5.1.1 Generally . . . . . . . . , . . > > . . . . . . . . . . , . . . . 9 5.1.2 Exclusive Loading Area. . . .•. , . . . . . . , . . > . . . . . . : . . . . . . . . . 9 5 1 3 Exclusive Parking Area . : . . . . . . . . . . . . . . . . . . . . . . . . . 9 5.2 ALTERATIONS TO COIVLMON.AREAA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5.2.1 FApproval . . . . . . . . . . . . . > . , . . . . , . . . . . . . . . > . . . . > . . . . . . . . 9 5:2.2 . 9 5.3 MAT3!I"I'ENAN OF PARCELS AND BUILDING'S y . . . . . . . , > . . . . 9 5:3.1 Generally . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . 9 5.3.2 Association Maintenance Areas . . . . . . . . . . . . . . . . . . . . . . . . . 9 5.3.3 Utility Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . +10 5.3.4 Sidewalks . , . . . . . . . . . . . . . . . . . . 10 5.4 ALTERATIONS TO PARCELS AND BUILDINGS . . . . . . . . . . . . . . . . . . . . . . 10 5.5 LANDSCAPING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . 10 5.5.1 Common Area . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.5.2 Association Maintenance Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.5.3 Buildings . 10 5.6 RIGHT O NANCE ANIS ENTRY EY ASSOCIATION . . . . . . . . . . . . . 10 5.7 DAMAGE AND DESTRUCTION--ASSOCIATION . . . . . . . . . . . . > . ,.10 5.7.1 Bids . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5 7 2 'Sufficient Proceeds . . . . . . . . . . . . . . . . 11 5.8 DAMAGE tilt DESTRUCTION-C1Wi�TI RS'. . . . . , . . . . . . . . . . . . . 5.9 CONDEMNATION OF COMMON AREA . . . . . . . . . . . . . . . . . . . . . . . . . . . . i II 07/19102 r.rr TLE&sAPVTO ATFOANMATLAW 1901 OLYMPIC SOULrr VARO,Ifoo WALNUT CREEK.CA 94395-39',4 (923)9".SMO VI FUNIS AND ASSESSMENTS . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . : . . . . . . . 11 6.1 COVENANTS TO PAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 6.1.1 Liabili for Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 6.1.2 Funds�eld in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 6.1.3 Offsets . . . . . . . I . . . . . . . . . . . . .. . . . . . . . . . . . 12 6.2 REGULAR ASSESSMENTS . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . 12 6.2.1 Pay� nt of Re Assessments . . . . . . . . . . . . . . . . . . . . ... . 12 6.2.2 Allocation of War Assessments . , . , . . . . . . . 12 6.2.3 Non-Waiver of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 6.3 SPECIAL ASSESSMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 6.4 REIMBURSEMENT ASSESSMENTS . . . . . . . . . . . . . . . . . . . 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 6.5 ACCOUNTS . . 6.5.1 Types of Accounts . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 6.5.2 Reserve Account . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 13 6.5.3 Current ration Account' . . . . . . . . 13 6.6 BUDGET, FINANCIAL STATEMENTS,REPORTS A�tI�'STUDIES . . . . . . . . . . 13 6.6.1 Preparation and Distribution of Budget . . . . . . . . . . . . . . . . . . . . . . . 13 6.6.2 Annual Report . . . . . . . . . . , 13 6.6.3 Notice of I creased Assessments . . . . . . . . . . . . . . . . . . . . : : . . 13 6.6.4 Statement of Outstanding�Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 6.7 ENFORCEM13NT OF ASSESS1vILNTS . . . . . . . . . . . . . . . . . . . . . . . . . . 13 6.7.1 Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; . . 13 6,7.2 Additional Char4es . . . . , . . . . . . . . . . . . . . . . . . . . . . . . 14 6.7.3 Satisfaction of Lien . . . . . . . . . . . . . . . . . . . . . . . . . 14 6 7 4 Lien Elirxtated B Foreclosure . . :. . . . . . . . . . . . . . . . . . . . . . . . . . 14 6.8 SUBORDINATION OF LIEN . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 VII MEMBERSHIP IN AND DUTIES OF THE ASSOCIATION . . . . . . . . . . . . . . . . . . . . 14 7.1 THE ORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . :. . . . . . . . . . 14 7.2 MEMBERSHIP . . . . . . . 15 7.2.1 Appurtenant to Ownership . . . . . . . . . . . » . . . . . . . . :. . . . . . . . . . . . 15 7.2.2 A exation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . » . . . . . . . . . . . . 15 7.3 VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 7.4 RULES . . . . . . . . . . . . . . . . . . . . . . . . . . 15 7.5 TRANSFERS OF COMMON AREA.. . . . . . ... . . . . . : . . . . . . . . . . . . . . . . 15 7.6 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 7.6.1 General Provisions and Limitations . . . . . . . . . . . . . . . . . . . . . 15 7.6.2 Types of Coverage.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 7.6.3 Annual Review . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 17 VIII DEVELOPMENT RIGHTS , . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8.1 LIMITATIONS OF RESTRICT&C 17 8.2 RIGHTS OF ACOS AND COMPLETIO)I4(.IF C4NSTRLTC I`IOIY . . : . : . . : . . . 17 8.3 SIZE AND APPEARANCE OF PROJECT . . . . . . . . . . . . . . . . . . . 8.4 MARKETING RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8.5 TITLE RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 IX RIGHTS OF MORTGAGEES . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . , . . 18 9.1 CONFLICT18 9.2 INSI'TCTION OF BOORS ANI)khC616§ . . . . . . . . . . . . . . 18 9.3 FINANCIAL STATEMENTS FOR MORTGAGEES . . . . . . . . . . . . . . . . . . . . . 18 9.4 MORTGAGE PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 X AMENDMENT AND ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 101.1 AMENDMENTS . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 113.2 ENFORCEMENT . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 10.2.1 Rights to Enforce . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 18 10.2.2 Violation of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . 19 10.2.3 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 10.2.4 Ndnwaiver . . . . . ... . . . . . . . . . . . .. 19 101.3 DISPUTES BETWEEN OWNERS AND DECLARANT . . . . . . . . . . . . . . . . . . 19 -iii- 07/19/02 LITTLE&S"UTO AMNNEYS AI'LAW 1901 OLYMPIC BOULEVARD.$100 WALNUT CREEK,CA 44396.5034 (925)944-SOW . 10.4 MANDATORY BINDING ARBITRATION . . . . . . . . r . . . . . • . . . . . . . 19 10.4.1 Selection and Timing . • . . . . . . . • . • t • . a , s . ♦ . 20 10.4.2 D�scovery . . . . . . . . . . . . . . . . . . . . . . . . . ♦ . . . . . . : . . . . . . 20 10.4.3. Full Djsclosure . . . » . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 10.4.4 IleacitT� . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ♦ ♦ • . . . . . . . 20 10.4.5 Decision . . . . . . . . . . . . . , . . . . • . . . . . . . . . . . .21 10.4.6 Fees and Casts . . . . . . . . . . » . . . . . . . . . . . . . . . . . . . . . 21 10.4.7 Judicial Reference Alternative . . . . . . . . . . . . . • . . . . . . . . . . . . . . 21 XI ARCHITECTURAL.AND LANDSCAPING CONTROL . . . . . . . . . . . . . . . . . . . . . . 21 11.1 APPLICABILITY . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . 21 11.1.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ . . . . . 21 11.1,2 I'sxcept.Gus . . . . . . . . . . . . . . . . ♦ . . . . . . , . • . . . . , . . . . . . . . . 21 11.1.3 Declarnnt Exemption . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . 21 11.1.4 Relationshipp to Governmental Approvals . . . . . . . . . . . . . 22 11.2 MEMBERS AND ViJTING . . . . . . . . . . . . . . . . . . . . . . .'. . . . . . . . . . . . 22 11..3 DUTIES AND POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 11.3.1 Duties . . . . . . . . . . . . . . . . . . . . . . . . . 22 11.3.2 Arcl3 6t4ial Sia arils . . . . . . . . » . . . . . . . » . . . . . . . . . . . 22 11.3.3 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . • 22 11.3.4 Consultants . . . . . . . . . . . . . . . . . 22 11.4 APPLICATION FOR APPROVAL OF IMPROVEMENTS . . . . . . . . . . . . . 22 11.5 BASF FOR APPROVAL OF IMPROVEMENTS . . . 22 11.6 FORM OF APPROVALS, CONDITIONAL APPROVALS AND DENIALS . ." . , . 23 11.7 WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 11.5 DETERMINATION OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 11.8.1 Notice of Completion . . . . . . . • , . . . . . . . • . . . . . . . . 23 11 8 2 tion . . . . . . . . . . . . . . . 23 11.9 FAILURES O REMEDY THE NON COMPLIANCE . . . . . . . . . . . . . . . . . . . . . 23 11.10 WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 11.11 APPEAL OF DECISION OF COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 11.12 Na LIABILITY . . . . . . . . . . . . . . . . . . . . . . . 24 11.13 EVIDENCE OF APPROVAL OR DISAPPROVAL . . . . . . . . . . . . . . . . . . . . . 24 XII ANNEXATION ... . . . . . . . . . . . . . 24 12.1 PROPERTWHICH MAY BA914N ED': . . , . . . . . , » . . . . . . . . . . 24 .12.1.1 Additional Property . . . ♦ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 12.1.2 Other Pro . . . . . . . . . . . • . . . 24 12.2 PROCEDURE FOR TION . . . . . . . . . . . ... . . . . . . . . . . . . 24 12.3 EFFECT OF ANNEXATION . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 12.4 DEANNEXATION AND AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 12.5 AMENDMENT' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 XIII MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 13.1 TERM OF DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 13.2 CONSTRUCTION OF PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 13.3 BINDING . . . . . . . . . . . . . . . . . . . • . . . . . • . • . . 25 13.4 SEVERABILITY OF PROVISIONS . . . . . . . . . . . . . . . . . . . 25 13.5 GENDER, NUMBER AND CAPTIONS . . . . . . . . . . . . . . . . . . . . . . 25 13.6 REDISTRIBUTION OF PROJECT DOCUMENTS . . . . . . . . . . . . . . . . . . . . 25 13.7 EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ♦ . . . 25 13.8 REQUIRED ACTIONS OF ASSOCIATION . . . . . . . . . . . . . . . . ... . . . . . . . • 26 13,9 SC3 LESSOR STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 26 13.10 CONFLICT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 26 -iv- 07/19/02 LITTLE&.SAPUTO A7 TORNErs AP LAW 4901 OLYMPIC BOULEVARD.1100 WALNUT CREEK,CA 94596-5024 (425)944.5600 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF SAND CREED. BUSE14ESS CENTER. A Common Interest Development THIS DECL4RATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF SAND CREEK BUSINESS CENTER ("Declaration`") is made by SAND CREEK BUSINESS CENTER I, L.P., a California limited partnership("Declarant"). ARTICLE, I INTENTION OF DECLARATION t 1.1 FACTS: This Declaration is made with reference to the following facts: 1.1.1 gLapc�ty mined by Declarant: Declarant is the owner of all the real property and Improvements thereon located in the City of Brentwood, County of Contra Costa, State of California, described as follows: Parcels A, B, C: and D, as shown on Parcel Map Subdivision MS 356-00, Coed for mord on 02,--- , in Book I S4 of Maps at Pages 23 through 24 , inclusive, in the Oficial Records of the County of Contra Costa, State of California. 1.1.2Nature of Proiect: Declarant intends to develop the Subject Property and,the Additional Property as a Common Interest Development which shall be a planned development as dem in California Civil Code Section 1351(k). The;Project is intended to be created in conformity with the provisions of the Davis-Stirling Common Interest Development Act(California Civil Code,Section 1350 et seq.). To establish the Project,Declarant desires to impose on the Subject Property,and any property annexed thereto, these mutually beneficial restrictions, easements,. assessments and liens under a comprehensive general plan of improvement and development for the benefit of all of the Owners, the Parcels and Common Area within the Subject Property and any property annexed thereto. 1.1.3 'h m of Proiecof Proiect: The Subject Property and the Additional Property are intended to be developed in two(2) or more Phases. The first Phase consists of the Subject Property. Prior to annexation, the Additional Property will not be subject to any provision of this Declaration. Declarant may, but has no obligation to, annex all or any portion of the Additional Property to the Project by recording a Declaration.of Annexation in compliance with the provisions of this Declaration. 1.2 ELJQAB= F REM JW_N�: Pursuant to California Civil Code Sections 1353 and. 1354, Declarant hereby declares that the Project and all Improvements thereon are subject to the provisions of this Declaration. The Project shall be held, conveyed,hypothecated,encumbered, `used, rented, used, occupied and improved subject to the covenants, conditions and restrictions stated in this Declaration. All such covenants,conditions and restrictions are declared to be in furtherance of the plan for the subdivision,development and management of the Project as a Common Interest Development. All of the limitations, casements, uses, obligations, covenants, conditions, and restrictions stated in this Declaration shall run with the Project and shall inure to the benefit of and be binding on all Owners and all other parties having or acquiring any right,title or iaterest in any part of the.Project. After recordation 1 07/19/02 LITTLE&5APUTO aMANZYSAruw 1901 GLYMPIC.BOULEVARD,0100 WALNUT CM'IM.CA.44SO&3024 - (42S)%4.5000 yam. of a Declaration of Annexation,the property described thetein will constitute a part of the Project and:will be subject to this Declaration. 1.3 B(7UNDAR.Y�3JIPICAMN_S: If the boundaries of real property change as a result of one or more subsequently recorded final,maps, amended final maps,parcel maps, amended parcel maps, certificates of correction, Parcel line adjustments and/or records of survey, then, for all purposes of this Declaration: 1.3.1 Ad 2d to CQm=Area: Pro"which is removed from.a Parcel or a Common Area parcel and added to a Common Area parcel shall thereafter be part of that Common Area parcel; 1.3.2 Addgd to Fmd: Property which is removed from a Parcel or a Common Area parcel and added to a Parcel shall thereafter be part of that Parcel; 1.3.3 &Mvgd From tion: Property which is removed from a Parcel or Common Area parcel and added to real property which is not subject to this Declaration shall no longer constitute a part of such,Parcel or Common Area and shall no longer be subject to this Declaration. 1.3.4 Added toeclnratio ; Property not subject to this Declaration which is added to a Parcel or Common Area parcel shall be part bf the Parcel or Common Area parcel to which it is added and shalt automatically be subject to all provisions of this Declaration. ARTICLE H DEFINMONS Unless otherwise defined or unless the context clearly requires a different meaning,the terms used in this Declaration, the Map and any grant deed to a Parcel shall have the meanings specified in this Article. 2.1 AI)D_IU—DNA CHARM:'The term"Additional Charges"shall mean costs,fees,charges and expenditures, including without limitation, attorneys' fees, late charges, interest and recording and filing fees actually incurred by the Association in collecting anchor enforcing payment of assessments,fines and/or penalties. 2.2 APP1JJQNAL ' t,QPB]2TY: The term "Additional Property"shall mean the real property described on ambit"A"and all Improvements situated on such real property. 2.3 ALTERATICJ►N: The term "Alteration" shall mean constructing, performing, installing, remodeling, repairing, replacing, demolishing, and/or changing the color or shade of any improvement. 2.4 ARMIA: The term "Articles" shall mean the Articles of Incorporation of Saud Creels Business Center Owners Association, which are or shall be filed in the Office of the Secretary of State of the State of California. 2.5 AS QC1_A=K— The term"Association"shall mean Sand Creek Business Center Owners Association,its successors and assigns,a nonprofit mutual benefit corporation incorporated under the laws of the State of California. 2.6 , s CIA,' ION Zit iNU NANCE AREA: The term"Association Maintenance Area"shall mean the unenclosed portions of each Parcel. Each Association Maintenance Area includes all,landscaping, walkways and paving within the Association Maintenance Area and the landscape irrigation systems and components, for the Association Maintenance Area;including wiring, automatic valves, controllers and tuners, wherever located. 2.7 BQAK: The term"Board" shall mean the Board of Directors of the Association. 2 07/13/02 LITTLE&SAPU TC) Arron EYSATLAW 1901 OLYMPIC 80ULBYARD,1100 WALNUT CRESK,CA 44596-SM4 (925)944-5M 2,8 DU ET: The term "Budget" shall mean a pro forma operating budget prepared by the Board in accordance with Section 6.6.1 of this Declaration. 2.9 BULUIG: The term "Building" shall mean each of the buildings constructed on the Parcels. 2.10 DYLAWS: The W= "Bylaws" shall mean the Bylaws of the Association and any amendments.thereto. 2.11 Q Y: The term."City" shall mean the City of Brentwood, California. 2.12 CC3MMOL4 AM: The term"Common Area"shall mean Parcel A,as shown on the Map. The term "Common Area" shall also mean any property described as Common Area in a Declaration of Annexation and any real property estate or interest owned by the Association. Common Area includes ail Improvements situated thereon or therein. 2.13 C.4=: The terra"County"shall mean the County of Contra Costa,State of California. 2A4 DECLAltAN : The term"Declarant"shall mean SAND CREEK BUSINESS CENTER I, . L.P.,a California limited partnership. The term"Declarant" shall also mean any person or entity if(i)a notice signed by Declarant and such person or entity has been recorded in the County in which such person or entity assumes the rights and duties of Declarant to some portion of the Subject Property or the Additional Property, or (ii) such person or entity acquires all of the Subject Property and all of the Additional property them owned by a Declarant which must be more than one(1)Parcel. There may be more than one Declarant at any given time. 2.15 DECLARATION: The term "Declaration" shall mean this Declaration of Covenants, Conditions and Restrictions of Sand Creek Business Center and includes any subsequently recorded amendments. 2.16 pECLAR&TLQZJ-OF ANl^lEMTIo: The term "Declaration of Annexation"shall mean any instrument recorded in the County which extends the provisions of this Declaration to all or a portion of the Additional Property or any other property. 2.17 EXCLUSUSING AREAS: The term"Exclusive Loading Areas"shall mean each portion of the Common Area and Association Maintenance Area which is shown as an"Exclusive Loading Area" on the Parking Plan attached hereto as E ' it'_D or attached to a Declaration of Annexation. 2.18 EARKINQ ABBA : The term"Exclusive Parking Areas" shall mean each portion of the Common Area and Association Maintenance Area which is shown as an `Exclusive Parking Area" on the Parking Plan attached hereto as Exhibit_"B"or attached to a Declaration of Annexation. 2.19 E=)y1 EMAGE: The term"First Mortgage"shall mean a Mortgage which has priority under the recording statutes of the State of California over all other Mortgages encumbering a specific Parcel. 2.20 �MQRT9AGEl3: The term"First Mortgagee" shalt mean the Mortgagee of a First .Mortgage. The term"First Mortgagee"shall also include an insurer or governmental guarantor of a First Mortgage including, without limitation, the Federal Housing Authority and the Department of Veteran's Affairs. 2.21 DORQYRt TS: The term.-Improvements-shall mean everything constructed,installed or planted on real property,including without limitation,buildings, streets,fences, walls,paving,pipes, wires,grading,landscaping and other works of improvement as defined in Section 3146 of the California Civil Code, excluding only those Improvements or portions thereof which ate dedicated to the public or a public or quad-public entity or utility company,and accepted for maintenance by the public,such entity or utility company. 3 47119/62 LITTLE&SAPUTO AITOMYS ArLAW 1901 OLYMPIC SOULSYARD./Y(f0 WALNUT CRM,CA 945964024 (825)944.5000 2.22 II'iBE: 'fie tin"Invitee" shah mean any person whose presence within the Project is approved by or is at the request of the Association or a particular Owner, including, but not limited to, lessees,tenants,and the family,,guests,employees,licensees,patrons, customers,or irrvitees of Owners, tenants or lessees. 2.23 MAP: The tern"Map"shallmean Parcel Map Subdivision M"355-00,filed for record on July 26, 2002 ,in Book 184 of Maps at Pages 23 ftlougb 24 , inclusive, in the Official Records of the County,including any subsequently recorded amended final maps,parcel maps,certificates of correction,lot lute adjustments and/or records of survey. The term"Map"shall also mean any recorded subdivision map described in a Declaration of Annexation. 2.24 MIZOER: The term"Member" shall mean an Owner. 2.25 MQ12GAGE: The tern"Mortgage"shall mean any duly recorded mortgage or deed of trust encumbering a Parcel. 2.26 R1g GLE: The terra"Mortgagee"shall mean a Mortgagee under a Mortgage as well as a beneficiary under a deed of trust. 2.27 NOTICE AND : The term"Notice and Hearing"shall mean the procedure which gives an Owner notice of an alleged violation of the Project Documents and the opportunity for a bring before the Board. 2.28 Q The term'Owner"shall mean the holder of record fee title to a Parcel,including Declarant as to each Parcel owned by Declarant. If more than one person awns a single Parcel,the term "Owner" snail mean all owners of that Parcel. The term"Owrrer" shall also mean a contract purchaser (vendee)under an installment land contract but shall exclude the contract vendor and any person having, an interest in a parcel.merely as security for performance of an obligation. 2.29 EAROL The term "Parcel" refers to a.Separate Interest as defined in California Civil Code Section 1351(1)and spall.meanParcels E,C and D.as shown on the Map. The term"P'arcel'shall also mean any Parcel described as such in a Declaration of Annexation. Parcel includes all Improvements situated thereon or therein. 2.30 EWE: The term "Phase" shall mean any Parcels and/or Common'.Area which are simultaneously made subject to the provisions of this Declaration either by recording this Declaration or by recording a Declaration of Annexation. More than one Phase may be established in any Declaration of Annexation. 2.31 RC 1 : The term"Project"shall mean the Subject Property and any property described in a Declaration of Annexation. 2.32 EROEM DOC NIM-1 The term"Project Documents"shall mean the Articles,Bylaws, this,Declaration and.the Rules. 2.33 ROM: The terror "Pules"shall mean the rules adopted by the Board,including architectural guidelines, restrictions and procedures. 2.34 ,SV_B ECT_PROPBn : The term"Subject Property"shall meati the real property described in Section 1.1.1, above, and all Improvements thereon. 4 07/19/02 LrrTLB&saPuro ArTORNErs,rruw 18131 OLYMPIC BOULEVARD,#1138 WALNUT CMV_CA 94$9&$024 (923)9"-$Wo (T� t ARTICLE III C1WNER Ha" AND EASEMENTS 3.1 l'iC2H-Sl3VY.W=: The Interest of each Owner in the use and benefit of the Common Area shall be appurtenant to the, Parcel owned by the Owner. Any cgnveyance of any Parcel shall automatically transfer the right to use the Common Area without the necessity of express reference in the instrument-of conveyance. The ownership interests in the Common Area and Parcels described in this Article are subject to the easements described, gratzted and reserved in this Declaration. Each of the easements described, granted or reserved herein shall be established upon the recordation of this Declaration and shall be enforceable as equitable servitudes and covenants running with the land for the use and benefit of the Owners and their Parcels superior to all other encumbrances applied against or in favor of any portion of the Project. 3.2 PW Ms` kAR .L_„�-": Title to each Parcel in the Project shall be conveyed in fee to an Owner. 3.3 QM%F SHW OP COMMON ASA. Title to or a legal ownership interest in the Common Area in each Phase shall.be conveyed to the Association prior to or concurrently with the conveyance of the first Parcel in,that particular Phase to an Owner. The Association shall be deemed to have accepted the Common Area.conveyed to it when(i) a,grant deed conveying title to the Common Area has been recorded in the Official Records of the County and(ii)assessments for the Phase in which the Common Area is located have commenced. . 3.4 EASfi NO'S: The easements and rights specified in this Article are hereby created and shall exist whether or not they are also set forth in individual grant deeds to Parcels. By reference to this Declaration,each grant deed to a Parcel shall be deemed to be conveyed with the benefit of and subject to all applicable easements set forth in this Section. ` 3.4.1 Adiaining Prooem+: Declarant shall have, and hereby expressly reserves,a right and easement over and across the Common Area for the purposes of reasonable ingress to and egress from, over and across the Project, including private roads and pathways,to the Additional;Property until all of the Additional Property is annexed to the Project. 3.4.2 1,&MU99n of .Additional Prouerty: Upon the recordation of a Declaration of Annexation, the Parcels add the Owners of Parcels in the annexed Phase shall have all of the rights and easements specified in this Article and the Parcels and. the Owners of Parcels in the Project prior to annexation shall have all of the easements specified in this Article as though the annexed Phase were initially part of the Project. 3.4.3 patio: The Association and its duty authorized agents and representatives shall have a non-exclusive right and easement as is necessary to perfbrm the duties and obligations of the Association set forth in the Project Documents,including the right to enter upon Parcels, subject to the limitations contained in this Declaration. 3.4.4 Asper.tion Maintenance Areas: The Association shall 'have a non-exclusive easement over the Association Maintem ee Areas for the purposes of maintaining,repairing and replacing walkways and paving and maintaining,repairing irrigating and.replacing Landscaping,irrigation and related Improvements within the Association Maintenance Areas. 3.4.5 (-Xx=F : livery Owner shall have a non-exclusive right and easement for the ingress,egress,use and enjoyment of the Cohnzmn Area which shall be appurtenant to and shall pass with the title to every Parcel, subject to the following provisions: x.trTLs snPtrTo 5 07/19/d2 AnVMWrSATLAW 9901 OLYMPIC OOULEIYA",11O0 WAL14UT CRUX,CA 9439414024 p 4 t (a) The right of the Association to grant,convey and dedicate fee title to or easements over all or any portion of the Common Area; and (b) Any easement which affects the Common Area or which.is set forth in the deed which conveys the Common Area to the Association. 3,4.6 . Eamm The Project is benefitted and burdened by the Easement Deeds recorded on Anril t_h,2002,x,9W, as Instrument Nos. .1-272 6 and 127297 , 'Che Association shiff perform all maintenance duties imposed upon the Owners in accordance with the terms of those Easement Deeds. 3.4.7 : Non-exclusive rights and easements are reserved and granted(i)for the benefit of each Parcel, as dominant tenement, over, under and across each other parcel and the Common Area, as servient tenement,and(ii)for the benefit of the Common Area,as dominant tenement, over, under and across each Parcell, as servient tenement Such easements shall be for the purposes of encroachment, support, occupancy and use of such portions of Parcels and/or Common Area as shall be encroached upon, used and occupied by the dominant tenement as a result of any origin construction design, accretion, erosion, deterioration, decay, errors in original construction, movement, settlement, shifting or subsidence of any building or structure or any portion thereof. If any portion of the Project is partially or totally destroyed,the encroachment easement shall exist for any replacement structure which is rebuilt pursuant to the original construction design.. The easement for maintenance of the encroaching Improvement shall:exist for as long as the enerbachmrent exists,provided that no easement for encroachment shall be,created clue to the willful misconduct of the Association or any Owner. Any easement for encroachment may but need not be cured by repair or restoration of the Improvement. 3.4.8 t y1rnmmW E19Wcs: All governmental and quasi-governmental entities,agencies and utilities and their agents shall have a anon-exclusive easement over the Common.Area,for the purposes of performing thein duties within the Project. 3.4.9 Mira : Ile Common Area and Parcels are subject to all easements and rights of way shown on the Map. 3.4.10 Enlusiye JAMAing_A=: Each Owner shall have an exclusive right and easement for the use,possession and enjoyment of tore panting spaces and loading Improvements constructed within an Exclusive Loading Area on or adjacent to that Owner's Parcel. All easements to Exclusive Loading Areas are subject to the right of the Association to enter in and upon the Exclusive Loading Area as provided by and in accordance with the limitations upon such right as set forth in this Declaration. One hundred eighty(18€)days after all of the Additional Property has been annexed to the Project and Declarant no longer owns any Parcel within.the Project,any Exclusive Parking Area which has not been assigned to an Owner in a deed executed by Declarant shall no longer constitute an Exclusive Parking Area. 3.4.11 Exclusive Parking Areas: Each Owner shall have an exclusive right and easement for the use,possession and enjoyment of the parking spaces within:the Exclusive Parking Area which is assigned to an Owner in a deed executed by Declarant. .All easements to Exclusive Parking Areas are subject to the right of the Association to enter in and upon the'Exclusive Parking Area as provided by and in accordance with the limitations upon such right as set forth in this Declaration. One hundred eighty. (180) days after all of the Additional Property has been annexed to the Project and Declarant no longer owns any Parcel within the Project,any Exclusive-Parking Area which has not been assigned to an Owner in a deed executed by Declarant shall no longer constitute an Exclusive Parking Area. 3.4.12 Qx m 2 Mj : There are reserved and granted for the benefit of each Parcel and the Common Area, over, under, across and through the Project, except the Buildings, non-exclusive easements for surface and subsurface storm drains and the flow of water in accordance with naattzral . drainage patterns and the drainage patterns and Improvements installed or constructed by Declarant, Additionally, this Declaration and each Parcel and the Common Areas shall be subject to all easements rrnrTn,fi&sArcrxo 6 €17/19102 AYTORMICYS AT LAW , 1901 OLYMPIC BOULEVARD,1100 WALNUT Clot€,CA 94596-3#124 (925)944-3WO �.i granted by Declarant for the installation and maintenance of drainage Improvements necessary for the development of the Project. 3.4.13 Sutmort, inene a*r R_ air: The Association anal each Owner shall have a non-exclusive right and easement appurtenant to the Gammon Area and to all Parcels through each Parcel and the Common Area for the support,maintenance and repair of the Common Area and all Parcels. 3.4.14t" `ties. Bch Owner shall have a non-exclusive right and easement over,wader, across and through the Project,except for portions of the Project on which a structure is situated,for utility dines,pipes,wires and conduits installed by Declarant. Additionally,this Declaration and each Parcel and the Common Area shall be subject to all easements granted by Declarant for the installation and maintenance of utilities necessary for the development of the Project. .ARTICLE"TV USE RESTRICITONS 4.1ALTF 'l'�t��FS: Except as otherwise specifically provided in this Declaration,no Alteration may be made to any Improvement until plans have been submitted and approved pursuant to•Article M. 4.2 AIMIAU. The Board shall have the right to prohibit the maintenance of any pet which, ` atter Notice and Hearing, is found to be a nuisance to other Owners. No dog shall be allowed outside of a Building unless it is under the control of a responsible person by leash. Each Owner or Invitee shall restore the Common Area to the condition it was in immediately preceding its use by any dog permitted on the Common Area by the Owner or Invitee. 4.3 DISCS. No outside television antenna, microwave or satellite dish, aerial, or outer such.device (collectively "Video Antennas") with a diameter or diagonal measurement in excess of one(1)meter shall be erected,constructed or placed on any Common Area.or Parcel. Video antennas with,a diameter or diagonal measurement of one(1)meter or less may be installed only if they conform to the Architectural Standards and, if then required by the Architectural Standards, any necessary approval is obtained in accordance with the provisions of Article XI. Reasonable restrictions which do not significantly increase the cost of the Video Antenna system or significantly decrease its efficiency or performance may be imposed.. 4.4 ASO Q"n N MARD NANCB AB_W: No Alteration maybe math:by an Owner within an Association Maintenance Area without first obtaining approval of the Board. . Unless otherwise determined by the.Board,any Owner who adds landscaping in any Association Maintenance Area shall be responsible for maintaining and caring for the additional landscaping. The Association shall not be responsible for any damage caused to any such added landscaping as long as the damage occurs in the ordinary course of the Association's regular landscape maintenance program. 4.5 W TERMLLI T , leo Owner shall:remove,damage or disable any exterior photo cell light fixture.which is installed by Declarant The Owner of the Parcel on which such exterior photo cell light fixture Is situated shall at all times maintain the fixture in good.working condition, including maintenance of the light bulb and shall pay all electric charges required to operate the facture. Notwithstanding the foregoing,the Association shall maintain any exterior photo cell light fixtures,if any, which are connected to the Association's electric service. 4.6 IN UUS- Each Owner shall be responsible for compliance with the provisions of the Project Documents by that Owner's Invitees. An Owner shall promptly pay any Reimbursement Assessment levied and/or any:fine or penalty imposed against an Owner for violations committed by that Owner's invitees. -7 07/19102 LITTLE&SAPUTO Arrc R;WFsaruw 1901 OLYMP(C BOULEVARD,1100 WAL141JT CREEK,CA 94396.3034 3 (933)944-SWO. - - . 4.7 RALE 'LOBATION: No Parcel shall be used to explore for or to remove any oil, hydrocarbons or minerals of any kind without the approval of the Board and only if permitted by local ordinances. 4,8 : No dilapidated or inoperable vehicle shall be parked or stored where visible from adjacent Parcels or the public streets adjacent to the Project. As long as applicable ordinances and laws are observed, including the requirements of Section 22658.2 of.the California Vehicle Code, any vehicle which is in violation of this Declaration may be removed. Parking within each Exclusive Parking Area and Exclusive Loading Area is reserved for the Owner,and the Invitees of the Owner,conveyed an exclusive use casement for the use of that Exclusive Parking Area or Exclusive Loading Area.. Parking within the Common Area is limited to those areas which are shown as Exclusive Parking.Area and Exclusive Loading Area on the Parking Plan attached hereto as gahibit"B." The Association shall install signage or markings which designate the parking within the Exclusive Parking Areas and Exclusive Loading Areas as reserved parking or otherwise restricted to the benefit of a particular Owner and the Invitees of that Owner. No Owner may install any such signage or markings except witli the prior written approval of the Board. 4.9 (, P W: An towner shalt be entitled to rent or tease a Parcel,if. (l)there is a written rental or lease agreement specifying that the tenant shall be subject to all provisions of the Project,Documents and a failure to comply with Ray provision of the Project Documents shall constitute a default under the:agreement,(ii)the period of the rental or Lease is not less than thirty(30)days;(iii)the Owner gives notice of the tenancy to the Board and has otherwise complied with the terms of the Project Documents;and(iv)the Owner gives each tenant a copy of the Project Documents. Upon satisfaction:of the foregoing conditions all rights to the use and enjoyment of the Common Area shall be exercised by the tenant rather than by the Owner of the leased or rented Parcel;however,the Owner shall not be relieved of the obligations and duties imposed by this.Declaration. 4.10 : The Board may promulgate Rules concerning the use of the Project by Owners and their Invitees. Neither an Owner nor its Invitees shall violate any provision of this Declaration,the Bylaws or the Rules as the same may be amended from time to time. 4.11 SLQ y All signs displayed in the Project shall be attractive and compatible with the design of the Project and shall comply with all applicable local ordinances. The Board may establish uniform Rules to govern the location,size and appearance of signs;provided,however,any sign which is installed consistent with the current Rules at the time of the installation,including a substantially similar replacement sign,if necessary,may remain in place(provided that it is properly maintained in good aesthetic condition consistent with any applicable Rules governing the maintenance of signs)notwithstanding any subsequent change to the Rules. 4.12 E OF NAS'1'E MAMUM: All garbage,trash and accumulated waste material shalt be placed in appropriate covered containers. The Association shall designate the areas in which each Owner is permitted to stare its refuse collection containers. 4.13 U _AND O„ACL. SOF ffl&D_INCS: Each Parcel and Building maybe used for the purposes which are permitted.without conditional use permit by local ordinance within Subarea A of the PD-44 zoite. Other uses which are permitted by local ordinance within Subarea A of the PIS-40 zone are not permitted unless,however,the use is expressly approved by Declarant. No Parcel or Building may be used for residential purposes. No Owner may permit or cause anything to be done or kept upon,or in a Parcel which the Board reasonably determines either obstructs or interfere with the rights of other Owners or is noxious,harmful or unreasonably offensive to other Owners. Each Owner shall comply.with all of the requirements of all federal,state and local governmental authorities,and all laws,ordinances,rules and, regulations applicable to the Owner's Parcel. 4.14 USE QT COMMON AREA: All use of Common Area is subject to the Mules. There shall be no obstruction of any part of the Common Area. Nothing shall be stored or kept in the Common Area without the prior consent of the Board. Nothing shall.be done or kept in the Common Area which will increase the rate of insurance on the Common Area without the prior consent of the Board. No Owner shall 8 017119/02 LITTLE&SAPUTfJ ,irrepiersArLAw 1001 OLYMPIC BOULSVARD,1140 WALNUT CREEK,CA 94396.5024 (925)944-3M permit anything to be physically donne or]sept in the Common Area or any ether part of the project which might result in the cancellation of insurance on any part of the Common Area, which would interfere with rights of other Owners,or which would be a nuisannce,noxious,harmful or unreasonably offensive to other Owners. No waste shalt be,committed in the Common Area. The provisions of this Declaration concerning use,maintenance and management of the Compton Area are.subject to,any rights or limitations established by any easements or other encumbrances which encumber the Common Area. ARTICLE V L% OV :WNTS 5.1 A AND IhMOMEOW: 5.1.1 ever X: Except as otherwise specifically provided in this Declaration, the Association shall be responsible for the maintenance,repair,replacement,management,operation,painting upkeep of Common.Area, all Improvements situated in, upon or under the Common Area and any Improvements which a Declaration of Annexation provides are to be maintained by the Association.- The Association shall keep the Common Area and Improvements in good condition and repair,provide for all necessary services and cause all acts to be done which may be necessary or proper to assure the maintenance of the Common Area and Improvements in first class condition. 5.1.2 Egghgive L oa-W Area; Each Owner is responsible for maintenance,safety and all liability relating to any loading Improvements constructed within the Loading Areas;provided,that any parking spaces established within an Exclusive Loading Area shall be maintained by the Association in accordance with the xmai ntenme obligations establish by Sectionn.5.1.3,below. Exclusive Loading Areas may be developed and used for parking, loading and ancillary uses. 5.1.3 Exclusive paxj _Area: The Association shall maintain and provide general cleanup of Exclusive Parking Areas. 5.2 EILATIt?NS To COMMQN A E&: 5.2.1 ryas;: Alterations to any Improvements situated in,upon or under the Common. Area may be made only by the Association. A proposal for an Alteration to an Improvement may be made at any meeting. A proposal may be adopted by the Board., subject to the limitations contained in the Bylaws. 5.2.2 amu. iM Expenditures for maintenance,repair or replacement of an existing capital improvement for which reserves have been collected may be made from the Reserve Account. The Board may levy a Special Assessment to fund any Alteration of an Improvement for which no reserve has been collected. 5.3 � ENAI'dC"E C71 RCIdLS AND BIUI,,I3INGS; Except as otherwise specifically provided in this Declaration or a Declaration of Annexation, each Owner shall maintain and care for the Owner's Parcel, including the Building and other Improvements located thereon, in a manner consistent with the standards established by the Project Documents and other well maintained developments in the vicinity of the Project and in compliance with the Architectural Standards. 5.3.1 QM, r : Except as otherwise specifically provided in this Declaration, each Owner shall maintain and.care for the Owner's Parcel, including the.Building and.other Improvements located thereon,in a manner consistent with the standards established by the Project Documents and other well maintained areas in the vicinity of the Project and-in compliance with the Architectural Standards. 5.3.2 As§ocnation M9nrte_w=Argas-' The Association shall maintain all landscaping walkways and paving within Association:Maintenance Areas. 9 07/19102 LITTLE&SAPUTCt ArromEY3 Ar t,AW 1"I oLYMM ROULEVARD.1100 WALNUT CREEK,CA W96-=4 (szs)944.5000 �- 5.3.3 13tily Lines: Each Owner shall maintain,repair and replace those portions of all electric,gas,sewer, storm drain, water and ether utility lines,pipes wires and conduits which{i)are not maintained by a public or quasi-public entity or utility company and(il)serve only that Owner's,parcel, irrespective of whether the utility line is located on Common Area or that Owner's Parcel. The Association shall maintain, repair and replace those portions of all.electric, gas,sewer, stone drain, water and other utility lines, pipes wires and conduits situated within Common Area which (i)are not maintained by a public or quasi-public entity or utility company and(ii)serve more than one(1)Parcel. 5.3.4 S : The Association shall maintain all sidewalks, walkways and exterior entries situated within the Project. 5.4 LT TI O' I : Alterations may be made to tate interior of an Owner's Building,if the Alterations do not impair the structural integrity of the wilding and if the Owner complies with all laws and ordinances regarding alterations and remodeling. Any proposals for Alterations can Parcels or to the exteriors of Buildings shall be made in accordance with the provisions of Article XI. 5.5 TL&ND CAt? G: All landscaping in the project shall be maintained and cared for in a manlier consistent with the standards of design and quality as originally established by Declarant and in a condition comparable to that of other well maintained area in the vicinity of the project. All landscaping shall be maintained in a neat anjd.orderly condition. Any weeds shall be removed and any diseased or dead lawn, trees, ground cover or shrubbery shall be removed and replaced. All lawn areas.shall be neatly mowed and trees and shrubs shall be„neatly trimmed. tither specific'restrictions on landscaping may be established in the Rules. Irrigation systems,if any,shall be fully maintained in good working condition to ensure continued regular watering of landscape areas, and health and vitality of landscape materials. 5.5.1 Common Area: The Association shall maintain all landscaping located on Common Area. 5.5.2 Association aiplin nce Areas: The Association shall maintain all landscaping within Association Maintenance Areas. 5.5.3 W dings.: Each Owner shall maintain all landscaping located within the Owner's Building. 5.6 RLQM QF–, N ND E S TI . If an Owner fails to perform maintenance and/or repair which that Owner is obligated:to perform pursuant to this Declaration, and if the Association determines,after Notice and Hearing given pursuant to the provisions of the Bylaws, that such maintenance and/or repair is necessary to preserve the attractiveness,quality,nature and/or value of the Project, the Association may cause such maintenance and/or repair to be'performed.ed. The costs of such maintenance and/or repair shall be charged to the Owner of the Parcel as a Reimbursement Assessment. In order to effectuate the provisions of this Declaration,the Association may enter any Parcel whenever entry is necessary in connection with the perfonnance of any maintenance or construction which the.Association is authorial to undertake. Entry within a Parcel shalt be mnade'with as little inconvenience to an Owner as practicable and only after reasonable advance written notice of not less than forty-eight(48) hours,except in emergency situations. 5.7 BS'I`R CTIO — ASSOCIATION. The term "restore” shall mean repairing, rebuilding or reconstructing a damaged Improvement to substantially the same condition and appearance in which it existed prior to dire or other casualty damage. If fire or other casualty dan*ge extends to any improvement which is insured under an insurance policy held by the Association, the Association shall proceed with the filling and adjustment of all claims arising under the existing policies. The insurance proceeds shall be paid to and held by the Association. 5.7.1 MWhenever restoration is to be performed pursuant to this Section,the Board shall obtain such bids from responsible licensed contractors to restore the damaged Improvement as the 10 07/19/02 LITTLE&SAPUTQ ALTO) YSArIAW , I 00 OLYMPIC OWLEVARD,IWO WALNUT VREEK,CA 94"6-SM4 (925)+944-SWO ��� Board deems reasonable, and the Board, on behalf of the Association, shall contract with the contractor whose bid the Board deems to be the most reasonable. 5.7.2 Su .c(ent Proem: The costs of restoration of the damaged Improvement shall be funded pursuant to the provisions and in the priority established by this Section 5.7.2. A lower priority procedure shrill be utilized only if the aggregate amount of funds then available pursuant to the procedures of higher priority are insufficient to restore the damaged Improvement. The following funds and procedures shall be utilized: 1. The first priority shall be any insurance proceeds paid to the Association under existing insurance policies. 2. The second priority shall be all Reserve Account funds desigltated for the repair or replacement of the capital Improvement(s)which has been damaged. 3. The third priority shall be funds raised by a Special Assessment against all Owners levied by the Board. 5.8 PAWGE Cly.PZUMQ JQN— If all or any portion of a Parcel or Building its damaged by fire or other casualty and the lass is not covered by an insurance policy held by the Association, the Owner of the ;improvement shall either(i) restore the damaged Improvements or (ii) remove ell damaged Improvements, including foundations, and leave the Parcel in a clean and safe condition. Any.restoration under (i) preceding must be performed so that the Improvements are in substantially the same condition in which they existed prior to the damage,unless the Owner complies with the provisions of Article.)(I. Unless extended by the Board;the Owner must commence such work within one hundred twenty(120)days after the damage occurs and must complete the work within one(1)year thereafter. 5.9 C#3N, NlATT19K OF,CQAQ4QN ARBA; If all or any portion of the Common Area is taken for any public or quasi-public use under any statute,by right of ertlinent domain or by purchase in lieu of eminent domain,, the entire award shall be deposited into the Current Operation Account until distributed, The Association shall distribute such funds equally to all Owneis and shall represent the interests of all Owners. ARTICLE V1 F.T"S AND ASSESSMEWS 6,l CQYLKAM TO PAY. Declarant and each Owner covenant and agree to pay to the Association the assessments and any Additional Charges-levied pursuant to this Article VI.. 6.1.l qty for Payment: The obligation to pay assessments shall run with the land so that each successive record Owner of a Pared shall in turn be liable to pay all such assessments. No Owner may waive or otherwise escape personal liability for assessments or release the Owner's Parcel from the liens and charges hereof by non-use of the Common Area, abandonment of the Parcel or any other attempt to renounce rights in the Colson Area or the facilities or services,within the Protect. Each assessment shall constitute a separate assessment and shall also be a separate, distinct and personal obligation of the Owner of the Parcel at the time when the assessment was levied and shall bind the Owner's heirs, devisees, personal representatives and assigns. Any assessment moot paid when due is delinquent: The personal obligation of an Owner for delinquent assessments shall not pass to a successive Owner unless the personal obligation is expressly assumed by the successive Owner. No such assumption of personal liability by a successor Owner (including a contract purchaser under an installment land contract) shall relieve any Owner from personal liability for delinquent assessments. After an Owner transfers fee title of record to a Parcel,the Owner shall not be liable for any charge thereafter levied against that Parcel. 11 . LITTLE.&SAPLITO 07/19/02 ATTORNEYS Ar LAW 1901 OLYMPIC BOULEVARD,.1100 WALNUT CRMK,CA 94596•SOU . i s 944-sm 6.1..2 Funds Held in'gust: The assessments collected by the Association shall be held by the Association for and on behalf of each Owner and shall be used solely for the operation,care and mance of the Project as provided in this Declaration. 6.1.3 QM, : No offsets against any assessment shall be permitted for any reason, including, without limitation, any claim that the Association is not properly discharging its duties. 6.2 G_ AR ASSESSMENTS: 6.2.1 I'.�sy of g 3 pes is: Regular Assessments for each fiscal year shall be established when the Burd approves the Budget for that fiscal year. Regular Assessments shalt be levied on a fiscal year basis; however, each Owner shall be entitled to pay the Regular.Assessment in twelve(12) equal monthly installments, one installment payable on the first day of each calendar month during the fiscal year, as long as the tuner is not delinquent in the payment of any,monthly installment. If an Owner fails to pay any monthly installment by the sixtieth(W*)day after the date the installment was due,the Board may terminate that Owner's right to pay the Regular Assessment in-monthly installments and declare the then unpaid balance of the Regular Assessment for that year immediately due and payable. Regular Assessments shall commence for all Parcels in each Phase on the first day of the first month following the month in which the first Parcel in that phase is conveyed to an Owner and may commence prior to that date at the option of Declarant. 6.2.2 ltQo_fc�t Qf RodU Assessments; The total amount of the Association's anticipated revenue attributable to Regular Assessments as reflectedin the Budget for that fiscal year shall be allocated equally among the Parcels. After annexation of each Phase,the allocation and assessment of the charges in the Budget shall be reallocated equally among all Parcels in the Project, including those in the annexed Additional Property and the Board shalt approve a Budget for the remainder of the current fiscal year for use upon the commencement of Regular Assessments against Parcels in the new Phase. 6.2.3 &a-29= of Assessments: If before the expiration of any fiscal year the Association falls to fix Regular Assessments for the next fiscal year, the Regular Assessment established for the preceding year shall continue until a neer Regular Assessment is fixed. 6.3 SPEMA€, ASSESSbOM: Special Assessments may be levied in addition to Regular Assessments for (i) constructing capital Improvements, (ii) correcting an inadequacy in the !Current Operation Account, (iia) defraying, in whole or in part, the cost of any construction, reconstructions, unexpected repair or replacement of Improvements in the Common Area, or(iv)paying for such other` matters as the Board may deem appropriate for the Project. Special Assessments shall be levied in the same manner as Regular.Assessments. 6.4RSEM_� AS5MWEN'TS: The Association. shall levy a Reimbursement Assessment against an Owner to(a)reimburse the Association for the costs of repairing damage caused by that Owner or that Owner's Invitee or(b)if a failure to comply with the Project Documents has resulted in(i) an expenditure of monies, including attorneys' fees, by the Association to bring the Owner or the Owner's Parcel or Improvements into compliance or (ii) the imposition of a fine or penalty. A Reimbursement.Assessment shall be due and payable to the Association when levied. A Reimbursement Assessmbnt shall not be levied by the Association.until Notice and Hearing has been given in accordance with the Bylaws. 6.5 ;AQCt.IJUffS 6.5.1 ls of Aruotints: Assessments collected by the Association shall be deposited into at least two (2) separate accounts with a responsible financial institution, which accounts shall be clearly designated as {i) the Current Operation Account and(ii)the Reserve Account. The Board shalt deposit those portions of the assessments collected for current maintenance and operations into-the Current Operation Account and shall deposit those portions of the assessments collected as reserves for replacement and deferred maintenance of major components which the Association is obligated to repair,restore,replace or maintain into the Reserve Account. 12 07119102 LITTLE do SAPUTO A7701WEYS AT UW t94i OLYMPIC 90UMARD,Poo WALNUT CHPOK,CA 94396-"24 (975)944-SM 6.5.2 Reserve Account: The Association shall not expend funds from the Reserve Account for any purpose other than the maintenance, repair or replacement of the Common.Area. 6.5.3 Current C3peration Account: All other costs properly payable by the Association shall be paid from the Current Operation Account. 6.6 BUDGET FINANCIAL STATE S: 6.6.I Prepg tign and Pighutiutt`S f B 3d et: The Hoard"I annually prepare, adopt and distribute a Budget in accordance with the requirements of Section 1365 of the California Civil Code. A summary of the Budget may be distributed in lieu of the entire Budget if the requirements set,forth in Section 1365 of the California Civil Code are satisfied. 6.6.2 AM149 Resort: The Board shall annually prepare and distribute an income and expense statement and summaries of such other financial accounting information as shall be prepared for the.Association. 6.6.3 Nq;Iio Qf Lw=W Apses wets: The Board shall provide notice to the Owners of any increase in Regular Assessments or the levy of any Special Assessments within fifteen(15)days after the adoption of a resolution establishing the increased Regular Assessment or levying the Special Assessment. 6.6.4 atap=-ppi of Outstanding Charges:Within ten(10)days of a written request by an Owner, the Association shall provide a written statement to the Owner which sets forth the amounts of delinquent assessments,penalties,attorneys'fees and other charges against that Owner's Parcel. A charge for the statement may be trade by the Association, not to exceed the reasonable costs of preparation and reproduction of the statement. 6.7 BNP£ CEMI ANT C3� SSBSSIONTS: 6.7.1 Pngg"ur : In addition to all other remedies provided by law,the Association,or its authorized representative,may enforce the obligations of the Owners to pay each assessment provided for in this Declaration in any manner provided by lave or by either or bath:of the following procedures: (a) By u,.,fit: The Association may commence and maintain a suit at law against any Owner personally obligated to pay a delinquent assessment. The suit shall be maintained in the name of the Association. Any judgment rendered in any action shall include the amount of the delinquency, and such additional costs,fees,charges and expenditures("Additional Charges")and any other amounts as the court may award. A proceeding to recover a judgement for unpaid assessments may be maintained without the necessity of foreclosing or waiving the lien established herein. (b) H ie : The Association or a trustee nominated by the Association tray commence and maintain proceedings to establish and/or foreclose assessment liens. No action shall be brought to foreclose a Ben until the lien is created by recording a.Notice of Delinquent Assessment(*Notice")., Prior to recording a Notice, the Association shall: (i)notify the affected Owner in writing by certified mail of the fee and penalty procedures of the Association;(ii)provide an itemized statement of the charges owed by the Owner, including items on the statement which indicate the principal'owed, any late charges, the method ;of calculation, and attorneys' fees; wind (iii) ascribe the collection practices used by the Association, including the right of the Association to recover reasonable costs of collection.. The Notice must be authorized by the Board,signed by an authorized agent and recorded In the Official Records of the County, The Notice shall state the amount of the delinquent assessment(s),the Additional Charges incurred to date, a legal descriptions of the Parcel, the name(s)of the record Owner(s) thereof ansd'the mime and address of the trustee,if any,authorized by the Association to enforce the lien by sale and shall be signed by the person authorized to do so by the Board,or if no one is specifically designated,by the President or 'Chief Financial Officer. No later than tern(10)days after recordation of the Notice,copies of the Notice shall be mailed to all record owners of the Parcel in the manner set forth in Section 2924b of the California s.,srxLn&sAPsrro 13 07//9/02 Arra rsArLAw 1961 OLYMPIC.ROUL$VA.6D„#100 WALNUT CREEK.CA 94"6-502+1 (933)944»5000 Civil Code. After the expiration of thirty(30)days following the recording of a Notice,the lieu may be foreclosed as provided in Section 1367 of the Civil Code of the State of California.. 6.7.2 Ad Waw_1Go rges: In addition to any car amounts due or any other relief or remedy obtained against an Owner who is delinquent in the payment of any assminents,each Owner agrees to pay such Additional Charges as the Association may incur or levy in collecting the monies due and . delinquent from that Owner, All Additional Charges shall be included in any judgment in any suit or action brought to enforce collection of delinquent assessments or may be levied against a Parcel as a Reimbursement Assessment. Additional Charges shall include,but not be limited to, the following: (a) Attrrrnevs' .Fees: Reasonable attorneys' fees and costs incurred in the event an attorney(s)is employed to collect any assessment or sum Clue, whether by suit or otherwise; (b) late Q aMps: A late charge in an amount to be fined by the Beard in accordance with the then current laws of the State of California to compensate the Association for additional collection costs incurred in the event any assessment or other sunt is not paid when due or within any"grace"period established by law; (c) tdosts of Shit: Costs of suit and court costs incurred as are allowed by the court; (d) res : Interest on the delinquent assessment and Additional Charges at a rate faxed by the Board in accordance with the theca current laws of the State of California; and (e) : Any such other additional costs that the Association may incur in the press of collecting delinquent assessments or sums. 6.7.3 Sgdgfactio of Lien: All amounts paid by an Owner toward a delinquent assessment shall be credited first to reduce the principal amount of the debt. Upon payment or other satisfaction of a delinquent assessment for which a Notice was recorded,the Association shalt record a certificate stating the satisfaction and release of the assessment lieu. 6.7.4 Lien Eliminated By Foreclosure: If the Association has recorded a notice of Delinquent Assessment and the lien is eliminated as a result of a foreclosure of a Mortgage or a transfer pursuant to the remedies provided in the Mortgage, the new Owner of the. Parcel'shall pay to the . Association a pro-rata share of the Regular Assessment for each month remaining in the Association's fiscal year after the;date of the foreclosure or transfer pursuant to the remedies provided in the Mortgage. 6.8 SIM ORDINATION CIF LIBN: Notwithstanding any provision to the contrary,the liens for . assessments created pursuant to this Declaration shall be subject and subordinate to and shall not affect the rights of the holder of a First Mortgage made in good faint and for value. 'Upon:the foreclosure of any first Mortgage-on a Parcel, any lien for assessments which became due prior to such foreclosure shall be extinguished; provided, however, that after such foreclosure there shall be a lien'on the Interest of the purchaser at the foreclosure sale to secure all assessments, whether Regular or Special, charged to such Parcel after the date of such foreclosure sale, which lien shalt have the same effect and shall,be enforced in the same manner as provided herein. For purposes of this Section,a Mortgage may be given in good faith or for value even though the Mortgagee has constructive or actual knowledge of the assessment lien provisions of this Declaration. ARTICLE VH MEMBERS'IN AND DUTIES OF THE ASSOCIATION 7.1 MC AWZA l." 0: 'fire Association on is a nonprofit mutual benefit corporation. Its _ affairs shall be governed by and it shall have the powers set forth in the Project Documents. 14 07/19/02 LITTLE do SAPUTO A77ORNEYSAr"W. 1901 OLYMPIC R(1ULEYARD,1100 - WALNUT CREEK.CA 943%-9024 (923)944-M �` 7.2 B_RR$ h Owner(including Declarant for so long as Declarant is an towner), by virtue of being an Owner,shall be a Member of the Association. No other person shall be accepted as a Member. 7.2.1 Appuitetiantto Qwnershir>:Association membership is appurtenant to and may not be separated from the ownership of a Parcel. Membership shalt terminate upon termination of parcel ownership. Ownership of a Parcel shall be the sole qualification for Association membership. Membership shalt not be transferred,pledged or alienated in any way except upon transfer of title to the Owner's Parcel (and then only to the transferee of title to such Parcel). Any afteinpt to make a prohibited transfer is void. Membership shalt not be related to the use or non-use of the Common Area and way not be renounced. The rights,ditties,privileges and obligations of all Members shall be as provided in the Project Documents. 7.2.2 AuWxaticln: Upon the commencement of Regular A.ssessrnertts in a subsequent Phase,.the Owners,of the Parcels described in the Declaration of Annexation for that Phase shall become Members. 7.3 JLQ1M4G: Any action required by law or by the Project Documents to be approved by the Owners, the Members or each class of Members shall be approved, if at all, in accordance with the procedures set forth in the Bylaws. 7.4 RM: The Beard may propose, adopt, amend and repeal Rules appropriate for the management of the Project,which are consistent with the Project Documents. The Rules may also establish . architectural controls and may govern the use of the Common Area by Owners or their Invitees. After adoption, a copy of the Rules shall be furnished to each Owner. Owners shall be responsible for distributing the Rules to their tenants. 7.5. RA P. R OP C C?N AREA: Subject to any applicable provision in the Bylaws,the. Board shall have the power and right in the name of the Association and all of the Owners as their attorneys-in-fact to grant,convey,dedicate,mortgage,or otherwise transfer to any Owner or other person or entity, fee title, easements, exclusive use easements, security rights or other rights or licenses in, on, over or under the Common Area that, in the sole discretion of the Board, are in the best interests of the Association and its Members..Notwitlistand ng anything Herein to the contrary,in no event shall,the Board take any action authorized hereunder that would permanently and unreasonably interfere with the use, occupancy and enjoyment by any Owner of that Owner's Parcel without the prior written consent of that Owner. 7.6 INS %,ANCE: The Board shall make every reasonable effort to obtain and maintain the insurance policies as provided in this Section. If the Board is unable to purchase a policy or if the Hoard believes that the cost of the policy is unreasonable,the Board shall call a special meeting of Members to determine what action to take. The Board shall comply with any resolution concerning insurance coverage, adopted at such a meeting. 7.6.1 General FWWO and Liuiiitatioias.All insurance policies shall be subject to and, where applicable, shall contain the following provisions and limitations: (a) Underwd=: All policies (except earthquake insurance) shall be written:with a company legally qualified to do business in the State of California and(i)Molding a"B"or better general policyholder's rating and a "6" or better financial performance index rating as.established by Best's Insurance Reports, (ii)reinsured by a company described in(i), above, or(iii) if such a company is not available,the best rating possible or its equivalent. (b) Name jwuLeed: Unless otherwise provided in this Section,the named insured shall be the Association or its authorized-representative,as a trustee for the Owners. However,all policies shall be for the benefit of Owners and their Mortgagees, as their interests may appear. 15 07/19102 LIT'T'LE do SAPUTO ATtORIVEYSArLAW 1001 OLY1M MC 00ULEVARD,JJ90 WALNUT CHUX.CA 9459&5024 (935)944-5009 f {c) u#horzty to Ing Q : Exclusive authority to adjust losses under policies Obtained by the Association shall be vested in.the Board:provided,however,that no Mortgagee having an interest in such lasses may be prohibited from participating in any settlement negotiations related thereto. (d) Contribution. In no event shall the insurance coverage obtained and maintained by the Association be brought into contribution with insurance purchased by Owners or their Mortgagees. (e) Genual P o�yr�isi=: To the extent possible,the Board shall male every reasonable effort to secure insurance policies providing for the following: (i) A waiver of subrogation by the insurer as to any claims against the Board,the manager, the Owners and their respective servants,agents and.guests; (ii) That the policy will be primary,even if an Owner has other.insurance which covers the same loss; (iii) What no policy may be cancelled or substantially modified without at least ten (10)days'prior written notice to the Association and to each First Mortgagee listed as a scheduled holder; (iv) An agreed amount endorsement, if the policy contains a coinsurance clause; (v) A guaranteed replacement cost or replacement cost endorsement; and (vi) An inflation guard endorsement. (f} : The period of each policy shall not exceed three(3)years. Any policy for a term greater than one(1)year trust permit short rate cancellation by the insureds. (g) #blc: The policy may contain a reasonable deductible and-the amount of the deductible shalt be added to the face amount of the policy in determining whether the insurance equals replacement cost. 7,6.2 'fres -of CQ�e: Unless.the'Association determines otherwise pursuant to Section 7.6,the Board shall obtain at.least the following insurance policies in the amounts specified: (a) Proverty han=: A Special Form or "All-Risk." policy of property insurance for all insurable Common Area improvements,including ft;twm and budding service equipment,against loss or damage by fire or other casualty, in an amount equal to the full replacement cost(without respect to depreciation) of the Common Area, and exclusive of land, foundations, excavation and other items normally excluded from coverage. A replacement cost endorsement shall be part of the policy. (b) 10==:ng: A combined single limit policy of liability insurance in an amount not less than Three Million Dollars($3,000,000.00)covering the Common Area and all damage or injury caused by the negligence of the Association,the Board or any of its agents or the Owners against any liability to tate public or to any Owner incident to the use of or resulting from any accident or intentional or unintentional act of are Owner or a third party occurring in or about any Common Area, if available,each policy shall contain a cross liability endorsement in which the rights of the named insured shall not be prejudiced with respect to any action by one named insured against another named insured. (c) Workers Conn resation: Worker's compensation insurance to the extent necessary to comply with all applicable laws of the State of California or the regulations of any,governmental body or authority having jurisdiction over the Project.. (d) Other Insurance: Other types of insurance as the Berard determine$to be necessary to fully protect the interests cif the Owners. (e) Insurance by [owner: Each Owner, at that Owner's sale cost and expense, shall obtain insurance coverage which the Owner considers necessary or desirable to protect that Owner and that 16 07119/02 LITTLE&SAPUTO Arr0&VRr3Ar"W 1991 OLYMP(c BUULQYAAD,tleo r WALNUT CREME,CA 94596-5824 j� q (M)944-5000 Com' Owner's Parcel, Building and personal property;provided, however, that no Owner shall be entitled to maintain insurance coverage in a manner so as to.decrease the amount which the Association,on behalf of all Owners and their Mortgagees,may realize under any insurance policy which the Association may have in effect at any time. 7.6.3 Annual Review: The Beard shall review the adequacy of all insurance, including the amount of liability coverage and the amount of property damage coverage, at least once every year. At least once every three years, the review shall include a replacement cost appraisal of all insurable Common Area Improvements without respect to depreciation. The Board shall adjust the policies to provide the amounts and types of coverage and protection that are customarily csrried by prudent owners of similar property in the area in which the Project is situated. ARTICLE VIII DEVELOPMENT RIGHTS ' . 8.1 IfiTOF = 7eelarant is undertaking the work €f developing S 1 Parcels and other Improvements within the Project. The completion of the development and the marketing, sale,lease,rental andlor other disposition of the Parcels is essential to the establishment and welfare of the Subject Property and the Additional.Property. In order that the work may be completed ami the Project established as rapidly as possible, nothing in this Declaration shall be interpreted:to deny Declarant the rights set forth in this Article., 8.2 Until all of the Additional property has been annexed to the Project and all Parcels owned by Declarant have been, conveyed,Declarant,its contractors and subcontractors shall have the right to:(i)obtain reasonable access over and across the Common Area of the project and/or do within any Parcel owned or controlled by it whatever is reasonably necessary or advisable in connection with the completion of the Project; and (u)erect, construct and maintain on the Common Area of the Project andlor within any Parcel owned or controlled by it such structures as may be reasonably necessary for the conduct of its business to complete the work, establish the Project and dispose of the Project in parcels by sale, lease, rental or otherwise. Each Owner acknowledges that: (a)the construction of the Project may occur over an extended period of time; (b)the Owner's quiet use and enjoyment of the Owner's Parcel may be disturbed as a result of the noise,dust,vibrations and other nuisances associated with construction activities;and(c)the nuisances will continue until the completion:of the construction of the entire project. 8.3IZ,, 'a Bim, R: NCE 9FUR9MM: Declarant shall notbe prevented from increasing or decreasing the number of Parcels that may be annexed to the Project or from changing the exterior appearance of Buildings or Common Area structures, the landscaping or any other matter directly or indirectly connected with the Project in any manlier deemed desirable by Declarant, if Declarant obtains all governmental consents required by lava. 8.4 MARG RTAS: Declarant shall have the right to: (i)maintain signs,banners,sales offices,sales and construction trailers,leasing offices,rental offices,storage areas,parking lots and related facilities in any Parcels owned at controlled by Declarant or Common Area within the Project as are necessary oureasonable, in the opinion of Declarant,for the We,lease,rental or other disposition of the Parcels, (ii) make reasonable use of the Common Area and facilities for the sale,.lease, rental or other disposition of Parcels; (iii) use any parcels owned or controlled by Declarant'in accordance,with any Promotional programs established from blue to tune by Declarant;and(iv)conduct its business of disposing of Parcels by sale, lease, rental or otherwise. 8.5 TULE RLQM: This Declaration shall not be construed to constitute a limitation on Declarant's title rights to the Additional Property prior to its annexation,nor shall,it impose any obligation on Declarant or any other person or entity to improve, develop or annex any portion of the,Additional Property. This Declaration shall not be construed to limit the right of Declarant at any time prior to such 17 07/19/02 LITTLE&SAPUTO 1901 OtympiC BOULEVARD,#too WAL#tri`CREEK,CA 9459"024 (915)99444-SOM an annexation to establish additional licenses,'easements,reservations, restrictions and rights=of=way for itself,utility companies or others as reasonably necessary for the proper development and disposition of property owned by Declarant. ARTICLE IX RIGHTS OF MORTGAGEES 9.1 Ql`�l Notwithstanding any contrary provision in the Project Documents, the provisions of this Article shall control with respect to the rights and obligations of Mortgagees specified herein. •2 S DN QF �"�AN 0RDS.* Upon fequest,any.Owwner or First Mortgagee shall be entitled to inspect and copy the books, records and financial statements of the Association, the Project Documents and any amendments thereto during normal business hours. 9.3 �.�Q.L&L UAT MEM FORtUQRTGA9M: If an audited financial statement for the immediately preceding fiscal year is available,the Association shall provide a copy to any Mortgagee who minces a written request for it. If an audited financial statement is not available any Mortgagee who desires to have an audited financial statement of the Association may cause an audited financial statement to be prepared at the Mortgagee's expense. 9.4 MQRIQAQE F'9QY_3C1M: A breach of any of the conditions or the enforcement of arty lien provisions contained in this Declaration shall not defeat or render invalid the lien of any First Mortgage made in good faith and for value as to any Parcel in the Project;but all of the covenants,conditions and restrictions contained in this Declaration shall be binding upon and effective against any Owner of a Parcel if the parcel is acquired by foreclosure, trustee's sale or otherwise. ARTICLE X AMENDMENT Alm► ENFORCEMENT 10.1yWP_W, T : Prior to the conveyance of the first Parcel to an fawner outer than a Declarant, any Project Document may be amended by Declaraut alone. After the conveyance of the first Parcel, the Project Documents may be amended by the approval of Members and Declarant, if.Declarant then owns any Parcel in the Project;provided however,that no provision of this Declaration which provides for a vote of more than fifty-one percent (51%) may be amended by a vote less than the percentage specified in the.Section to be amended. Any amendment to this Declaration shall be effective upon the recordation in the Official Records of the County of an instrument executed by the President and Secretary of the Association-which sets forth the terms of the amendment and a statement which certifies that the required percentage of Members has approved the amendment. 14.2 EtTE MENT: 14.2.1 Rights to orce: Subject to the provisions of Section 14.4, Declarant, the Association and/or any Owner shall have the power to enforce the provisions of the Project Documents in any manner provided by law or in equity.and in any manner provided in this Declaration. In addition to instituting appropriate legal action, the Association may temporarily suspend an Owner's voting rights and/or levy a fine against.an Owner in a standard amount to be determined by.the Board from time to time. No determination of whether a violation has occurred may be made until Notice and Hearing has been provided to the Owrff pursuant to the Bylaws. If legal action is instituted by the Association,any judgment rendered shall include all appropriate Additional,Charges. Notwithstanding anything to the contrary 18 47/19/02 z.rrTt.a&snrvro d??'G?RNRYS AT LAR' . 1900 OLYMPIC BOULEVARD,1100 WALNUT CREBK.CA 9459&=4 (MI 944SOp�} contained in this Declaration, the Association has no power to cause a forfeiture or abridgement of an Owner's right to the full use and enjoyment of the Owner's Parcel and Building, including access thereto over and across the Common Area,due to the Owner's failure to comply with the provisions of the Project Documents unless the loss or,forfeiture is the result of the judgment of a court,an arbitration decision, a foreclosure proceeding or a sale conducted pursuant to this Declaration. The provisions of this Declaration are equitable servitudes,enforceable by any Owner or the Association against the Association or any other Owner in the Project. Except as otherwise provided,Declarant,.the Association or any Owner(s)has the right to enforce, in any manner permitted by law or in equity;any and all of the provisions of the Project Documents, including any decision made by the Association,upon the Owners, the Association or upon any property in the Project. 10.2,2 VaglWo of I:aw: The Association may treat any Owner's violation of any state, municipal or local law,ordinance or regulation,which creates a nuisance to the other Owners in the Project or to the Association,in the same mariner as a violation of the Project Documents by zhtg such violation subject to any or all of the enforcement procedures set forth in this Declaration,as long as the Association complies with the Notice and Hearing requirements. 10.2.3 & 'es Cumulative. Each remedy provided in this Declaration is cumulative and not exclusive. 10.2.4 Nonwaivere The failure to enforce the provisions,of any covenant, condition or restriction contained in this Declaration will not'constitute a waiver of any right to enforce any such provisions or any other provisions of this Declaration. 10.3 MEMS EV OWNERS AhM DEC Before any towner initiates arbitration in accordance with the provisions of Section 10.4,the Owner and Declarant shall first attempt, in goad faith, to resolve the dispute informally by negotiation. Either party may initiate negotiations by writing a letter to the other party describing the nature of the dispute and any proposals to.resolve the . dispute. The letter shall be sent by certified mail and shall be deemed received three(3) days atter its deposit in the U.S. Mail. The recipient shall respond, within ten(10)clays of receipt of the letter,either with a letter that addresses the dispute and its proposed resolution:or by requesting a meeting of the parties. The meetings)shall be held at a mutually acceptable location. After at least one exchange of letters or at least one meeting of the parties, should either party honestly believe that the dispute cannot be resolved' informally, then that party shall so notify the either party either personally at a meeting or in writing. At . this point,either party may initiate arbitration as provided herein. Should either party rem to participate In the negotiations,then upon expiration of the ten(10)day initial response time, the party who sent the initiating letter may commence arbitration proceedings in accordance with'the provisions of Section 10.4. If the dispute involves an alleged problem with materials,design or construction of any portion of the Project,then Declarant shall have the right to inspect the alleged problem before any such meeting or any written response is required from Declarant. If Declarant elects to attempt to care the alleged problem, Claimant shall allow Declarant to perforin whatever work is deemed necessary by Declarant during normal working hours. Declarant agrees to began its curative work within thirty(30)days after the fixst meeting between the parties. If the dispute remains unresolved after the good faith attempt to negotiate has been concluded or if the curative action performed by Declarant is not undertaken as promised or does not resolve the alleged problem,then either party may initiate arbitration as provided herein in accordance with the provisions of Section 10.4. 10.4 MANDATORY 132MM ARBnD U0: Any disputes,claim,issues or controversies between any Owner and Declarant or between the Association and Declarant regarding any matters that arise out of or are in any way related to the Project,the relationship between Owner and Declarant or the relationship between the Association.and Declarant,whether contractual or tort,including,but not limited to,the purchase,sale,condition, design, construction or materials used in construction of any portion of the Project or the 'agreement between Declarant ail any Owner to purchase a Parcel or any related agreement,including,but not limited to warranties,disclosures, or alleged construction:defects(latent or patent), (collectively *disputes") except as otherwise set forth herein, shall be resolved through the 19 07/19/02 LITTLE&S"UTO ATTOAMMArW 1901 OLYMPIC 13OUL+EYARD,x$00 WALNUT CREEK,CA 94395-3034 C923)944.3000 d , t� procedures established in this Declaration. The party who has a dispute with Declarant is referred to as the"Claimant"in this Section 10.4. If negotiations fast then all such disputes shall be resolved;by neutral, binding arbitration and: not by any court action except as provided for judicial review of arbitration proceedings by California law. Except as otherwise set forth herein,the arbitration proceedings shall be conducted by and lin accordance with the rules of Judicial Arbitration and. Mediation Services, Inc. (JAMS/Endispute)or any successor thereto and,except for procedural issues,the arbitration proceedings, the ultimate .decisions of the arbitrator, and the arbitrator shall be subject to and bound by existing California raise and statutory law including, but not limited, to applicable statutes of limitation such as California Code of Civil Procedure Sections 337,337.15(a),339(d),340,and 340(3). Nothing herein shall toll,extend,shorten or otherwise affect any applicable statute of limitation. Should JAMS/Endispute cease to exist,as such,then all references herein to JAMSIEndispute shall be deemed to refer to its successor or, if none, to the"American Arbitration Association(in which case its commercial arbitration rules shall be used). I0.4.I Sd=ion and Tires: The matter shall be heard by one(1)arbitrator. Within}five . (5) business days of receipt of a written request from one of the parties to arbitrate a claim, JAMS/Endispute shall provide a list of five(5)qualified names to both parties. The term`qualified" mean a retired judge(or N none is available then=attorney,licensed to practice in California,having at least fifteen (1 )years of experience) with a strong emphasis on the laws governing real estate matters, especially those dealing real estate development and construction. Each side will strike one name(based on reasons listed in CCP Section 1297.121 or 1297.124 or for no reason at all).until one is left(which shall be the appointed arbitrator),unless the parties sooner agree. "I'Ise parties shall have no more than three(3) business days for the striking of each name. The initiating party shall,be the first party to strike a name and submit it to the other party. 10.4.2 g sgiM: Except as limited herein,each party shall`be entitled to discovery to the extent provided in Section 1283.05 of the Code of Civil Procedure or any successor statute thereto. Each party shall have the right to depose the expert witnesses of the other patty and to conduct two other depositions of its choice without the ;need to obtain an order of the arbitrator. All other depositions, document requests, requests for admissions and similar discovery shall be conducted under the direction and supervision of the arbitrator. No party shall be entitled to brim any motion to exclude.or limit the evidence to'be submitted to the arbitrator., No party shall have any outer discovery rights except as authorized by the arbitrator.for good cause. 10.4.3 fA I),)Jscjos m. Bothparties shall,in good faint,make a full disclosure of all issues and evidence to the colter party prior to the hearing. Any evidence or information that the arbitrator determines was unreasonably withheld shall be inadmissible by the party which withheld it. 'Plte initiating. party shall be the first to disclose all of the following, in writing,to the colter party and to the arbitrator an outline of the issues and its position on each such issue; a list of all witnesses it intends to call, and copies of all written reports and other documentary evidence whether or`not written or contributed to by .its retained experts(collectively"oudixne"). The initiating party shall submit its outline to the other party and the arbitrator within thirty(30)days of the final selection of the arbitrator. 1'he responding party shall submit its written response as directed by the arbitrator. If the dispute involves alleged construction defects, then the Claimant shall be the first party to submit its written outline, list of witness, and reportsldocuments and small include a detailed description of the nature and scope of the alleged defect(s), its proposal for repair or restoration any repairs made to date and an estimate of the cost of repair/restoration together with the calculations used to derive the est ate. 10.4.4 1 ° g: The hearing shall be held in the County. The hearing shall commence within ninety (90) days of the receipt by the parties of the list of names of proposed arbitrators from JAMSfEndispute unless this date is determined to be infeasible by the arbitrator in which case the arbitrator shall select tithe-next available bate for the hearing. 'The.arbitration shall be conducted as informally as possible. Neither the rules of admissibility of evidence nor,the Evidence Code of the State of California shall be applicable except for Evidence Code Section 1152 et seq.which,shall be applicable for the'purpose of excluding from evidence offers,compromises,and.settlement proposals,unless both parties consent to 20 07/19102 LITTLE&SAPUTO A2TORNRY$ArL 4W 1901 OLYMPIC SOULVARU<1140 WALNUT CREEr.CA 94594.3424 . (115)9445000 their admission..The arbitrator shall be the sole judge of the admissibility of and the probative value of an evidence offered and is.authorized to provide all legally recognized remedies whether in law or equity. Attorneys are not required and either party may elect to be represented by someone other than a licensed attorney. Cost of an interpreter shall be barn by the party requiring the services of the interpreter in order to be understood by the arbitrator. Except as sett forth herein,the arbitration sht►il be conducted pursuant to Title 9 of the California Code of Civil Procedure, Section 1280 et seq. 10.4.5 -Decisi(n The decision of the arbitrator shall be binding on the parties and may be entered:as a judgment in any court of the State of California that has jurisdiction and venue. In no event shall the award of the arbitrator include any component for punitive or exemplary damages . The arbitrator shall cause a complete record of all proceedings to be prepared similar to those kept in the Superior Court; shall try all issues of both fact and law; and shall issue a written statement of decision, such as Haat described in Code of Civil Procedure Section 643(or its successor)which shall specify the facts and law relied upon in reaching hisllaer decision within twenty(20)clays after the close of testimony. 10.4.6 F-ees and Q=. Notwithstanding any state to the contrary, including Cade of Civil Procedure Section 645.1, each party shall bear their own casts of the hearing, including attorneys' fees. No attorneys fees or casts shall be awarded to either party but each party shall be solely responsible for its own attorneys' fees and costs,including,expert witnesses, consultants, reports, and similar costs. The total cost of the arbitration proceedings, including the advanced initiation fees and other fees of JAMS/Endispute and any related costs and fees incurred by JAMSfEndispute (such as experts and consultants retained by it)shall be borne as determined by the arbitrator,regardless of the outcome. 10.4.7 JiLdic=tel 1?ekre=Altera%rive: To the extern that either party may be otherwise entitled to bring an action at law pursuant to Cal fora a Code of Civil Procedure Section 1295,7, or if a court of competent jurisdiction determines that the dispute resolution set forth herein is void or unenforceable, the entire matter shall proceed as one of judicial reference pursuant to Code of Civil Procedure Section 638 etThe rules of procedure set forth.herein.shall be the rules of procedure for the reference proceeding,unless precluded by law. JAMS/Hudispute shall hear,try and decide all issues of both fact and law and make any required findings of facts and, if applicable, conclusions of law and report these along with the judgment to the supervising court within twenty (20) days after the close of testimony. The parties shall cooperate and diligently perform such acts as may be necessary to carry out the purposes of this Section.. ARTICLE H A.BCEMCTURAL AND LANDSCAPING CONMOL 11.1 , PUCAPILITY: 11.1.1 a ea: Except as otherwise provided'in this Declaration, proposals for Alterations are subject to the provisions of this Article and may not be made until approved in accordance with the provisions of this Article. 11.1.2 fir, ; The provisions of this Declaration requiring architectural approvals do not apply to repainting or refinishing sini hing any Improvement in the same color,hue,intensity,tone,and shade or repairing or replacing any Improvement with the satire materials. The Architectural Standards may establish additional exceptions from time to time. 11.1.3 Qeciarant Ex,ion. The provisions of this Declaration requiring architectural approvals do not apply to tate original construction of any Improvements on a Parcel by Declarant, its agents, contractors or employees. The provisions of this paragraph may not be armed without the 21 07119102 LITTLE do S,rkPtrTO .47TORN87SAtL#9Y - 1"I OLYMPIC SOULBVARD.#100 WALNUT CKUK.CA 90964024 . (925)%4-5W0 consent of Declarant until all of the Additional Property has been annexed to the Project and all of the Parcels in the Project owned by Declarant have been conveyed; 11.1.4 RIlationsh tQCl=rentatai Aprsv.ts: Proposals for Alterations may also be subject to review and approval by state or local governmental entities or agencies. Satisfying the provisions of this Declaration does not automatically satisfy any requirement for governmental approval,permitting or inspection. All approvals,permits and inspections which are required under local,state or federal law for any proposed Alteration are the responsibility of the Owner and must be obtained by the Owner in addition to the approvals required by this Declaration.. 11.2 AND OTTNG:, The Architectural Committee("Committee")shall consist of three(3)members appointed by the Board. All members will serve until they resign or are replaced by the. Board. All decisions of the Committee shall be made by majority vote.The Board may at anytime decide to dissolve the Committee and undertake the Committee's responsibilities. 11.3 DT JM$AND PQWW. 11.3.1 Ruq., 1'he Committee shall review and approve;conditionally approve,or deny all plans,submittals,applications and requests made or tendered to it by Owners or their agents,pursuant to the provisions of this Declaration. In connection therewith,the Committee may investigate and consider the architecture,design,layout,landscaping,energy conservation treasures,water conservation measures, and other features of the.proposed Improvements. 11.3.2 AgW=UKd Standards: The Committee, from time to time and in its sole discretion, may adopt architectural rules, regulations and guidelines("Architectural.. Standards"). The Architectural Standards may impose specific requirements on individual Parcels.if those requirements are reasonable in light of specific Parcel topography,visibility or other,factors, The Architectural Standards will be effective when they are adopted by the Committee. The Architectural Standards shall.interpret and impletrtent the provisions of this Declaration by setting forth the standards and procedures for architectural review and guidelines for architectural design,placement of buildings,color schemes,exterior finishes and materials,landscaping,fences,and similar features which may be used in the Project;provided:,however, that the Architectural Standards may not be in derogation of the minimum standards established by this Declaration. The Architectural Standards may include a schedule of fees for processing submittals(which shah not exceed the amount necessary to defray all costs incurred by the Committee in processing the submittals)and establish the time and manner in which such fees will be paid. The Architectural Standards will constitute Rules. 11.3.3 Powers: The Committee may adopt rules and regulations for the transaction of business,scheduling of meetings,conduct of meetings and related matters. The Committee may also adopt criteria, consistent with the purpose and intent of this Declaration to be used in making its determination to approve, conditionally approve or deny any matter submitted to it for decision. 11.3.4 Crtnsurltants: With the consent of the Board, the Committee tray hire and the Association shall pay consulting architects,landscape.architects;urban designers, engineers,inspectors, and/or attorneys in order to advise and.assist the Committee in performing its duties. 11.4AEPLICAMN MgMMO-VAL QF W8C M,:Any Owner,except Declarant and its designated agents,who wants to perforin any Alteration for which approval is required shall notify the Committee in writing of the nature of the proposed work and shall furnish such information as may be required by the Architectural Standards or reasonably requested by the Committee. 11.5 PA&S EOR.APPROVAL OP IMPRO)IMxNTS; The Committee tray approve tate proposal only if the Committee finds that (i) the plants and specifications conform to this Declaration and to the Architectural-Standars in effect at the titre the proposal was submitted.and(u)the proposed Alteration will be consistent with the standards of the Project and the provisions of this Declaration as to harmony of exterior design,visibility with respect to existing structures and environment,and location with respect to topography and finished grade elevation. 22 M/19/02 LITTLE&SAt'i3'r0 AMRNEITAra.AW 1901 OLYMPIC BOULEVARD,/110 - WALNUT CREEK.CA 9439E 3O'd4 {9�3)9 4 4-30063 6y 11.6 F : AUapprovals, conditional approvals and denials must be in writing. Any denial of a proposal must,date the reasons for the decision to be valid. Any proposal which has not been rejected in writing within sixty(60)days from the date of submission will be deemed approved, 11.7 Upon approval of the Committee, the Owner mast diligently proceed with the cormnencement.and completion of all wont so approved. Completion of the wont approved trust occur within one (1) you following the approval of the work unless the Architectural.Committee grants an extension. This Section shall not be interpreted to extend any other time period imposed by this Declaration. If the Owner faits to complete the work within the required time period,the Committee may notify the Owner in writing of the non-compliance and proceed in accordance with,the provisions of Section 11.9,below. . 11.8 f 3BT RAME4 "101`+t Op Any work performed,whether or not the Owner obtained proper approvals,may be inspected and a determination of.cotrmpliance made as follows: 11.8.1 Noticnicompl l u: Upon the completion of any work performed by an Owner for which approval was required, the Owner must give written notice of completion to the Committee. 11.8.2 Igo='+ : Within sixty(60)days after the Committee's receipt of the Owner's notice of completion,or,if the Owner f dis to give a written notice of completion to the Committee within the completion period specified in Section 11.7,above,a designee of the Committee may inspect the work performed and determine whether it was performed and completed in substantial compliance.with the approval granted. If the Committee fluthat the work was not performed or completed in substantial compliance with the approval granted or ifthe Committee finds that the approval required was not obtained., the Committee shall notify the Owner in writing of the non-compliance. The notice shall specify the particulars of non-compliance and require the Owner to remedy the non-compliance. 11.9 E&OM JU NA&-COMPO CE; If the Committee has determined that an,Owner has not constructed an Improvement consistently with the specifications of the approval granted or within the time permitted for completion and if the Owner fails to remedy such non-ccs pflance in accordance with the provisions of the notice of non-compliance,then after the expiration of thirty(30)days from the date of such notification,the Committee shalt notify the Board,and the Board shall provide Notice and Hearing to consider the Owner's continuing non-compliance. At the Hearing, if the Berard finds that there is no valid reason for the continuing non-compliance,the Board shall determine the estimated costs of correcting it. The Board shall then require the Owner to remedy or remove the same within a period of not more than forty-five(45)days from the date of the Board's determination. If the Owner does not comply with the Board's ruling within such period or within any extension of such period as the Board,in its discretion,may grant,the Board may either remove the non-complying Improvement or remedy the non- compliance. The costs of such action shall be assessed against the Owner as a Reimbursement Assessment. 11.108: Approval of any plants,drawings or specifications for any work propose:,or for any other matter requiring approval shall not be deemed to constitute a waiver of any right to deny approval of any similar plan,drawing, specification or matter subsequently submitted for approval, 11.11 AP BAL OIC MMM QF CQ =: .This Section does not apply if the Board hasp dissolved the Committee or during the period of time that a majority of the Members of the Architectural Committee have been appointed by Declarant. If the Owner who applied or who the Committee determined should have applied for approval of an Alteration on a Parcel or Building disputes the jurisdiction or powers of the Committee or any requirement,rule,regulation or decision of the Committee applicable to the dental or conditional approval of the Owner's application(collectively referred to as"decision"),that Owner may appeal such decision to the Board.. The Board shall no*the Owner of the time, elate and place of a hearing to review the decision of the Committee. The notice shah be given at least fifteen(15)days prior to the elate set for the hearing and may be delivered either personally or by.mail. ,If delivery is made by mail, it shall be deemed to have been delivered seventy-two(72)hours after it has been deposited in the United States mail, first class,postage prepaid,addressed to the Owner at the address given by the Owner 23 07/19/02 LITTLE&3APtUTO ;9610L1 hVW 80Lfr.RVA",N196 WAU4M CRUX.CA W"6-5024 (M)9444696 to the Board for the purpose of service of notices or to the address of the Owner's Parcel if no other address' has been provided. After the hearing has taken place, the Board shall notify the:Owner of its decision. The decision shah become effective not less than five (5) days after the, date of the hearing. The determination of the Board shall be final. 11.12 NO LI;A,BILI'f°Y: If members of the Architectural Committee have acted in good faith, neither the Committee nor any member willl be liable to the Association or to any Owner for any damage, loss or prejudice sufferers or claimed due to: (a)the approval or disapproval of any plaits, drawings and specifications,whether or not defective; (b)the construction or performance of any work, whether or not punt to approved plans,drawings, and specifications;(c)tate development of any property within the Prcj�ct; or(d) the execution and filing of any estoppel certificate, whether or not the facts therein are correct. 11.13 EVIDDENCE OF APPROVAL OR DIS&MO—YA—L: After a determination of compliance is made pursuant to Section 11.8,the Board may issue a written Notice of Architectural Determination. The Notice of Architectural Determination must be executed by any two(2)Directors and shall certify that as of the date of the Notice either(t)the work completed complies with the provisions of this Declaration and the approval(s) issued by the Architectural Committee ("Notice of Approval") or:(ii) the work completed does not comply with the provisions of this Declaration or the approval(s) issued by the Architectural Committee ("Notice of Disapproval"). A Notice of Disapproval must also identify the particulars of the non-compliance.. Any successor,in interest of the towner will be entitled to rely on a Notice of Architectural Determination with respect to the matters set forth. Each towner.must disclose to the Owner's subsequent purchaser any Notice of Disapproval unless the Owner has a subsequently issued Notice of Approval which covers the same Alteration. The Notice of Architectural Determination will be conclusive as Between the Association, the Architectural Committee, Declarant and all Owners and such persons deriving any interest through any of them. Any Owner may make a written request that the Board prepare and execute a Notice of Architectural Determination, and the Board must,do so within sixty(60) days of its receipt of the request. ARTICLE XII ANNEXATION 12.1 E&f3P'L TY f BE AMMED: Property tray be added to the Project by annexation only in accordance with the provisions of this Article, 12.1.1 A i. QW Ergo y: All or any portion of the Additional Property may be added to the Project as one or more subsequent Phases without the approval of the Association or any Owner other than Declarant. 12.1.2 Other P onerty: Proper other than the Additional Property maybe annexed to the Project only with the approval of two-thirds(213)of each class of Members. 12.2 PP.C3CE,U_IM FOR NNEXAT .- In addition to any required approval by Members,a final subdivision map(s) or final parcel map(s) and a Declaration of Annexation for the property to be annexed must be recorded. The Declaration of Annexation roust: (i)describe the portion of the Additional Property to be annexed; (ii) describe any Common Area within the Additional Property.to be annexed; (iii)set forth the ownership of any such Common Area;and(iv)specify that all of the covenants,conditions arid restrictions of this Declaration will apply to the annexed Additional Property in the same mangier as if it were originally covered by this Declaration. The Declaration of Annexcadon may also(1)impose any additional covenants, conditions and restrictions on the Additional Property that are necessary to include the property in the Project and to reflect differences in nature, if any, of the Improvements to be constructed on the Additional Property and (ii)provide for a specified date on which assessments will commence for Parcels in that Phase,provided that the date specified may not be later than the first day of tate first month following the month in which the first Parcel in that Phase is conveyed to an Owner. No 24 07119102 LITTLE&SAPUTO ATWNX5Y$ArLAW 1901 OLYMPIC SOVLOVA".1100 WALNUT COM.CA 9439&3024 Declaration of Annexation may diminish the covenants, conditions or restrictions established by this Declaration nor discriminate between the Owners in the Project. No Declaration of Amiexation may alter or age the general coronion plan or scheme created by this Declaration nor will it affect the provisions hereof as covenants running with the land or as equitable servitudes. 12.3 EMCT 9PAhUATJ : Air complying with the procedures for annexation and upon the commencement of assessments for Parcels in.the annexed Phase, Owners of Parcels in the annexed Phase will be Members,will be subject to this Declaration and will be entitled to use all Common Area in the Project. The Association must reallocate the Regular Assessments so as to assess each Owner of a Parcel in the Project for a proportionate share of the total expenses of the Project. 12.4 gEANNEXATION AND AMENDM : Declarant has the right, at its sale option, to (i) amend a Declaration of Annexation by executing and recording an amendment of the Declaration of Annexation provided that the amendment is consistent with this Article,or(ii)removefrom the Project any, property described in a recorded Declaration of Annexation for a Phase by executing and recording a rescission of the Declaration of Annexation, as long as all of the following conditions are satisfied at the time of the execution and recordation of the amendment or rescission: (a)no Parcel in that Phase has been conveyed to an Owner; (b) no Common Area in that Phase has been conveyed to the Association, and (c)assessments have not commenced for any Parcel in the annexed property. 12.5 . AMS ANT; This Article may not be amended without the written consent of Declarant unless all of the Additional Property has been annexed to the Project. ARTICLE XIII AUSCELLANEC)US PROVISIONS 13.1 TERM OF DECLAUMM This Declaration will.continue for a term of fifty(50)years from:its elate of recordation. Thereafter, this Declaration will be automatically extended for successive periods often(10)years until two-thirds(213)of the Owners approve a termination of this Declaration. 13.2 CQN&UJLQn0N OFu R&QYI&O S: The provisions of this Declaration are to be liberally construed to effect its purpose of creating a uniform plan for the development and operation of a planned development pursuant to the applicable provisions of the Davis-Stirling Common Interest Development Act, Section 1350 et seq. of the California Civil Code. 13.3 : This Declaration is for the benefit of and binding upon all Owners; their respective heirs, legatees, devisees, executors, administrators, ,guardians, conservators, successors; purchasers, tenants, encumbrancers,donees,grantees, mortgagee, lienors and assigns. 13.4 S£to,�;.UBILI`r Y QF P OVISIONS: The provisions hereof shall be deemed independent and severable; and the invalidity or unenforceability of any one provision will not affect the validity or enforceability of any other provision hereof. 13.5 C:L?NM. NUTIyIM AM CAPTIONS: As used herein, the singular includes the plural and masculine pronouns include feminine pronouns, where appropriate. The title and captions of each paragraph hereof are not a part thereof arad shall not.affect the construction or interpretation of any part hereof. 13.5 11EDISTRIIIUTION OF E&Offi '"I DOCUMENTS: Upon the resale of any Parcel by any Owner, the Owner must supply a copy of each of the Project Documents to the buyer of the Parcel. 13.7 EM101n: All exhibits attached to this Declaration are incorporated by this reference as though fully set forth herein. 25 mr19/02 AT ORNErS AT LAW 1901 OL'YMI IC 0OVLPV'A .h00 WALNUT CREEK.CA 94596-5424 (9'25)944-3000 _.................. ................._ ......... ......... ......... ...._.._. .... ......... ......... ......... ......... _.........._... ......... ......... ......... ............................................................................... 13.8 ICU 31 tF1 ACTT(3t+tS C1F A SQt'LAT n t T�Association shall at all times take all reasonable aeons necessary far the Association to comply with the terms of this_Declaration or to otherwise carry out the inte,nt of this Declaration. 13.9 SUCCESSOR STATtJ 'ES: Any reference in the Traject documents'to a statute will be deemed a reference to any amended or successor statute. 13.10 C©NI?I.ICT: In the event of a conflict, the provisions of this Declaration will prevail over the Bylaws and the Rules. 20 WITNESS VID3ItE(7F, the undersigned has executed this Declaration on the 2002. .—.�. day of July, DECLARANT: SAND CREED BUSINESS CENTER 1, L.P., a California limited partnership Sand Creek Business Center M edrt a California corporation, Its General Partner By: , udLurenzim, UsPres SPATg OFcouny CtL �idA on �� �r�"' defort M. personally a tp me ox to me one a aatisfactory rddesce) to be the iaptru whow �1D wid9a auffior�tiedca person( me the by 8 ft entity uponf oaf whish the uu the acted.executed the inatrum eat. pe "�lkfCilt#`1 " MY head#Pd official Sol. M WA ►Co�t. 61/ LITTLE&SAPUTO 26 07/19/92 ATIVR TYSAT Aw 1901 OLYMPIC BOULEVARD.1160 WALNUT CREEK,CA 9459&3624 - (923)964-MO _.. _........ ..... .... __ _........._...._ ......... ......... ......... ......... ......... ......... ......... ......... .....__.. _.. .. _._.._...................................... . .................................................................... Mom A 'Description of Additional Property(Section 2.2) B Parking Plan(Section 2.1.7, 2.18 and 4.8) LITTLE TTLE&SAPU TO 07/19/02 ArraRNZYj TL4W l"t OLYMPIC SOULEVAM 1100 WALNUT CREEK.CA.9499&M24 (923)944-9dCi0 _......_ ...................................................................................... ..................................... I I'A The Additional pry is all the real property and Improvements thereon„located in the City of Brentwood, County of Contra Costa,State of California,described as the"Remainder parcel" indicating 26,512 square meters on that certain parcel.Map Subdivision MS 355-00 filed for record on in Book 1$4 he County of Maps at pages 23 through 24 inclusive,in the Official Records oftCoy of Contra Costa, State of California.. 10T0710c.02.wpd f, w� PARJUNG PLAN SAND CREED BUSINESS CENTER—PHASE 1 July 15,2002 Sheet 1 of 2 Background This Exhibit B(hereinafter"Parking Plan")is prepared pursuant to Sections 2.17,2.18,3.4.10, 3.4:11,and 4.9 ofthe Declaration. On Shut 2 of the Parking Plan,Phase 1 of Sand Creek Business Center is generally set forth within the perimeter of a bold,dark.black line.that has intermittent dashes(the"Phase 1 Line'). This Phase 1 Line is generally consistent with the property line defining Parcels A,B, C,and D on.Parcel Map Subdivision MS356-00 C the Map"). On Sheet 2 ofthe Parking Plan,Building 5 is built within.Parcel B ofthe'Map,Building 6 is built within Parcel C.ofthe Map,and Building 9is built within Parcel D of Map. The Common Area on the Mals is set forth as Parcel A,and the Common Area and Association Maintenance Area are generally all those areas outside of Building 5(BLDG.-5),Building 6(BLDG.-6),and Building 9 (BLDG.-9)on Sheet2 of the Parking Plan. E clu:ive Parking Area The"Exclusive Parking Area"set forth on Sheet 2 ofthe Parking Plan are all those portions ofthe Common Area and Association Maintenance Area,which are drawn as parking spaces on Sheet 2 of the Parking Plan,and are numbered 1 through 186,inclusive. Exclusive Loading Area . The"Exclusive Loading Area"set forth on Sheet 2 ofthe Parking Plan are all those portions ofthe Common Area and Association Maintenance Area,which are generally bounded in width by a solid line,and in length by a light clashed line,and are adjacent to- either BLDG. 3,BLDG.-6,or BLDG. -9,and are labeled LOADING. Exhibit B-Parking Plan-; CBC Phase l.wpd CO76s 143 CD ul I to cn co S31 MOM04 $ ts� ry y itt i to nP T ry im i cop csi 141 10 lob z Vi ' uj to .' 40' I U111110 4111211 CONTRA CtTR to Recorder Office RECORDED AT THE REQUEST OF SMEN L UEIR Clerk-Recor&r DOC— 7.00 -0475673-00 WHEN RECORDED RETURN TO: Chock Number Tuosday, SEE' 23, 2003 09,43:00 j.Q t1YC tI.0is MW S14.001REC $3.00 TCF 313."1 11 Ttl P4 $46A Nbt- 10,xW 2-0Z-- kai/RSl1-14 C DECLARATION OF ANNEXATION AND SUPPLEMENTAL RESTRICTIONS FOR SAND CREED{, BUSINESS CENTER PHASE 2 SAND CREED..BUSINESS CENTER 11, L.P., a California limited partnership, ("Declarant"), hereby makes this Declaration of Annexation and Supplemental Restrictions for Sand Creek Business Center— Phase,2("Declaration of Annexation")on the terms and conditions herein stated. RE C IIAL S: Declarant snakes this Declaration of Annexation based on the fallowing,facts and intentions: A. Declarant is the owner of all that certain real property located in the City of Brentwood,County of Contra Costa, State of California, described as follows: Parcels A,B.C,D and E,as shown on Parcel Ma Subdivisi NS365-02 ("Map"), filed for record on SEP 2 3 in Bonk of Maps at Pages 010 through , Int lusive, in the Official Records of the County of Contra Costa, State of California ("Annexation Property"). B. Pursuant to the provisions of the Declaration of Covenants,Conditions and Restrictions of Sand Creek Business Center recorded on August 8.2002,as Instrument No.02-277261,in the Official Records of the County of Contra Costa, State of California, Declarant desires to annex the Annexation Property to the Project. C. All of the capitalized terms in this Declaration of Annexation shall have the same meanings given theirs in the Declaration unless this Declaration of Annexation provides otherwise. Therefore, Declarant hereby declares the following. 1 08126/03 LITTLE N & ro At`fY7K#MATLAWLRW 001 OLYA4M BOULEVARD,AWO WALNUT CREEK OA 04 IK,024 {925)944•5004 475673 1. ANNEXAMN-OE ANNEXATION FRQ 1.1 This Declaration of Annexation is made in compliance with Article XII of the Declaration. 1.2 The Map affecting the Annexation Property has been approved by the City of Brentwood and duly recorded in the County of Contra Costa. 1.3 Upon the recordation of this Declaration of Annexation in the Official Records of the County of Contra Costa, the annexation of the Annexation Property to the Project shall be deemed accomplished and all of the incidents of annexation, as set forth in the Declaration, shall be in full force and effect. 2. APPLMADON OF UMMONS: The terms and provisions of the covenants, conditions and restrictions of the Declaration shall apply to the Annexation Property as if the Annexation Property were originally covered by the Declaration as a part of the Project. 3. ASSSLdENTS: Upon the first day of the first month following the close of escrow for the sale of the first Parcel in the Annexation Property or at such other earlier date as Declarant may determine, the assessments for the Project shall be reassessed so that all Parcels within the Project, including those within the Annexation Property,are assessed for a proportionate share of the total Project expenses as provided in Article VI of the Declaration. 4. ASSQIA'I`I(� MEMBERSHIP: Upon the commencement of assessments for the Annexation Property, the Owners of Parcels in the Annexation Property shall be entitled to participate in the affairs of the Association pursuant to Article VII of the declaration. 5. LAND QLA SI .Ate' `3 MN: All land within the Annexation Property shall be divided into the following classifications: 5.1 CommoN A : Common Area, as defined in the.Declaration. being Parcels A and E,as shown on the Map. 5.2 EA S: Parcels,as defined in the Declaration, being Parcels B, C and D, as shown on the Map. 5.3 ExcLusivELoADING ARBA : Exclusive Loading Areas,as defined in the Declaration, being, each portion of the Common Area and Association Maintenance Area which is shown as an "Exclusive Loading Area" on the Parking Plan attached hereto as Exhibit "A." 5.4 F C 3( siyE RKJN-Q ARE6 : Exclusive Parking Areas,as defined in the Declaration, being each portion of the Common Area and Association Maintenance Area which is shown as an "Exclusive Parking Area" on the Parking Plan attached hereto as Exhibit "A." 6. LIM=IONS ON AMLICA ON: Except to the extent that this Declaration of Annexation reallocates assessments for the Project, none of the provisions contained herein shall be 2 08/26/03 LITTLE&SAPUTO xYMPIC SATLAW BOULEVARD. 199•1 OLYMPIC BoULEYARU..ik90 WALNUT CREEK.CA04590-S024 (925)944-S 9 3 475673 construed in any event as diminishing any of the covenants, conditions or restrictions established by the Declaration,nor shall any provision be construed to discriminate between any Owner(s) in the Annexation Property and any other Owner(s) within the Project except as otherwise expressly provided in the Declaration. No amendment, addition, change or deletion in this Declaration of Annexation shall be deemed to alter or change the general common plan and scheme created by the Declaration nor shall the same affect the provisions of the Declaration as covenants running with the land or as equitable servitudes, all of which shall be uniformly applicable to all portions of the Project including the Annexation Property. 7. DEANNEXATION AND AMENMENT Declarant has the right, at its sole option, to(i)amend this Declaration of Annexation by executing and recording an amendment of this Declaration of Annexation provided that the amendment is consistent with the Declaration, or (ii) remove from the Project any property described in this Declaration of Annexation by executing and recording a rescission of this Declaration of Annexation,as long as all of the following conditions are satisfied at the time of the execution and recordation of the amendment or rescission: (a)no Parcel in the Annexation Property has been conveyed to an Owner: (b) no Common Area in the Annexation Property has been conveyed to the Association; and (c) assessments have not commenced for any Parcel in the Annexation Property. IN WITNESS WHERE F.the undersigned Declarant has executed this Declaration of Annexation on this JP—)iiday of t, 2001 DECLARANT: SAND CREEK BUSINESS CENTER II, L.P., a California limited partnership By: Sand Creek Business Center Management, Inc., a California corporation, Its General Partner By: Arthur L. Lorenzint, resident 08/26/03 ktMPIC BOULEVARD 190f oLYssSi`iG SOULEVAiti7*S00 WALNUT CREEK,CA V45M5024 5024 (925)9**-S3D0 / 475773 State of California 0ounty of €intra Costa C n SePteffber 11, 2003 before me, the mdersic, ned, a Notary clic 1n and for said State, personally appeared Artbur L. Lorenzini, Jr., persc ily krrr~x n to me (or p to me an the basis of satisfactory evidence) to be the person(s) whose nam(s) is/are subscribed to the within instrument and acknOwledged to me that he/ /they e*--cuted the sane in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instnment the person(s), or the entity upcn behalf of which the perscn(s) acted, executed the instrument. WIINESS my hand official seal.. ONNAL Comm. 1335451 ra Signature f L-.� #Voy w iCc CALIFOR A *� Conto tests Cooatr Comm.E:fitta!�b5.2�08� Name (typed o ruYt ) (tel) 4' 5673 EXHIBIT" "A" Parking Plan .- .o Lk 4 09/26/03 LITTLE 8c SAPUTO AMRNEY3 AT L W 1901 OLYMPIC BOULEVARD,!N39 WALNUT CREEK,CA 945V SB24 (92519"•5000 475 673 EXHIBIT A PARKING PLAN SAND CREEK BUSINESS CENTER.—PHASE 2 September 8,2003 Sheet 1 of 2 Background This Exhibit A(hereinafter"Parking Plan")is prepared pursuant to Sections 2.17,2.18,3.4.10, 3.4.11,and 4.9 ofthe Declaration. On Sheet 2 of the Parking Plan,Phase 2 ofthe Sand Creek Business Center is generally set forth within the perimeter of a bold,dark black line that has intermittent dashes(the"Phase 2 Linc"');Phase 1 Line is also set forth on Exhibit A,and Phase 1 is to the east of Phase 2. Phase 1 is comprised of Buildings 5,6,and 9,and related Common Area. This Phase 2 Line is generally consistent with the property line defining Parcels A,B,C,D,and E on Parcel Map Subdivision MS365-02(the"Map');the Remainder Parcel is:yet forth on the Map, and it is generally shown to the west of Phase 2. 1t may be annexed in the future. On Sheet 2 ofthe Parking Plan,Building 4 is built within Parcel B of the Map,Building 7 is built within Parcel C of the Map,and Building 8 is built within Parcel D ofthe Map. The Common Area on the Map is set forth as Parcel A and Parcel E,and the Common Area and Association Maintenance Area are generally all those areas outside of Building 4(BLDG.-4),Building 7(BLDCr.-7),and Building 8 (BLDCr.-8)on Sheet 2 ofthe Parking Plan. Exclusive Parking,Area The"Exclusive Parking Area."set forth on Sheet 2 ofthe Parking Plan are all those portions of the Common Area and Association Maintenance Area,which are drawn as parking spaces on Sheet 2 of the Parking Plan,and are numbered as follows: 187 through 313A;313E through 343;417 and 418; 508 through 556;and 571 through 573. Exclusive oading Area The"Exclusive Loading Area"set forth on Sheet 2 of the Parking Plan are all those portions ofthe Common Area and Association Maintenance Area,which are generally bounded in width by a solid line,and in length by a light dashed line,and are adjacent to BLDG.-4,and are labeled LOADING. Exhibit A-Parking Plan-SCBC Phase 2 wpd f J v� 4 ni A1C to w v #� r s r � r 3 r 3 r ttr '"`r,w,,,,r■■ N Cn C Nip t ° /� i �d r� o-m t � � r� � cJ C4 ry CO • �t'7 �'. � C � �ac`s 1 C-CD • Ch cs l • Lij 1u m a,r r �w v w 1 � 4'75673 'r RECORDED AT THE REQUEST OF: I DECLARE UNDER PENALTY OF PERJURY THAT THIS IS WHEN RECORDED RETURN TO: ATRUE AND CORRECT COPY OF TH f uw At ,�� TTAC ED D C ENT c�'° t��k t. DATE. 2's ID NE � C—ILCt4 DECLARATION OF ANNEXATION AND SUPPLEMENTAL RESTRICTIONS FOR SAND CREEK. BUSINESS CENTER PRASE 2 SAND CREEK BUSINESS CENTER II, L.P.,a California limited partnership, ("Declarant"),hereby makes this Declaration of Annexation and Supplemental Restrictions for Sand Creek Business Center-- Phase 2 („Declaration of Annexation")on the terms and conditions herein stated. R E C 1-1--A-L S: Declarant makes this Declaration of Annexation based on the following facts and intentions: A. Declarant is the owner of all that certain real property located in the City of Brentwood,County of Contra Costa, State of California, described as follows: Parcels A.B,C,D and E,as shown on Parcel Map Subdivision MS 365-02 ("Map"), filed for record on , in Book of Maps at Pages through , inclusive, in the Official Records of the County of Contra Costa, State of California ("Annexation Property"). B. Pursuant to the provisions of the Declaration of Covenants,Conditions and Restrictions of Sand Creek Business Center recorded on August 8,2002,as Instrument No.02-277261,in the Official Records of the County of Contra Costa, State of California, Declarant desires to annex the Annexation Property to the Project. C. All of the capitalized terms in this Declaration of Annexation shall have the same meanings given them in the Declaration unless this Declaration of Annexation provides otherwise. Therefore, Declarant hereby declares the following- LITTLE AT 0RN & APt1TQ i 08/26/03 Arrorwi:rrsAruw 19M OLYMPIC 30ULEVARU #100 0-111-1 WALNUTCREEK.CA 9459G-5024 (925)944-5000 CJ 4756'73 1.1 This Declaration of Annexation is made in compliance with Article X11 of the Declaration. 1.2 The Map affecting the Annexation Property has been approved by the City of Brentwood and duly recorded in dhe County of Contra Costa. 1.3 Upon the recordation of this Declaration of Annexation in the Official Records of the County of Contra Costa, the annexation of the Annexation Property to the Project shall be deemed accomplished and all of the incidents of annexation, as set forth in the Declaration, shall be in full force and effect. 2. APPLICATLON OF RESTRICTIONS: The terms and provisions of the covenants, conditions and restrictions of the Declaration shall apply to the Annexation Property as if the Annexation Property were originally covered by the Declaration as a part of the Project. 3. AS,S SMENTS: Upon the first day of the first month following the close of escrow for the sale of the first Marcel in the Annexation Property or at such other earlier date as Declarant may determine, the assessments for the Project shall be reassessed so that all Parcels within the Project, including those within the Annexation Property,are assessed for a proportionate share of the total Project expenses as provided in Article VI of the Declaration. 4. ASSOCIATION MEMBERSHIP: Upon the commencement of assessments for the Annexation Property, the Owners of Parcels in the Annexation Property shall be entitled to participate in the affairs of the Association pursuant to Article V11 of the Declaration. 5. LAND CLASSIFICATION: All land within the Annexation Property shall be divided into the following classifications: 5.1 CommoN AREA: Common Area, as defined in the Declaration, being Parcels A and E, as shown on the Map. 5.2 PARCEL Parcels, as defined in the Declaration, being Parcels B, C and D, as shown on the Map. 5.3 E ,t Lusi,VaLO tN�,,;YAIz Exclusive Loading Areas,asdefined inthe Declaration, being each portion of the Common Area and Association Maintenance Area which is shown as an "Exclusive Loading Area" on the Parking Plan attached hereto as Exhibit "A." 5.4 Exuu VE PARKiNGAREAS: Exclusive Parking Areas,as defined in the Declaration, being each portion of the Common Area and Association Maintenance Area which Is shown as an "Exclusive Parking Area" on the Parking Plan attached hereto as Exhibit "A." 6. LIM11ATIONS QN Affl11ON: Except to the extent that this Declaration of Annexation reallocates assessments for the Project, none of the provisions contained herein shall be 2 08/26/03 LITTLE&SAPUTO ATMPIC OULEVA AW 1401 OLYMPIC BOULEVARp.t i00 WALNUT CREEK.CA 945WS021 C* (925)344.5000 �+ i i 475673 construed In any event as diminishing any of the covenants, conditions or restrictions established by the Declaration,nor shall any provision be construed to discriminate between any Owner(s)in theAnnexation Property and any other Owner(s) within the Project except as otherwise expressly provided in the Declaration. No amendment, addition, change or deletion in this Declaration of Annexation shall be deemed to alter or change the general common plan and scheme created by the Declaration nor shall the same affect the provisions of the Declaration as covenants running with the land or as equitable servitudes, all of which shall be uniformly applicable to all portions of the Project Including the Annexation Property, 7. 7EANN ; AMN AND AMENDMEN"t": Declarant has the right, at its sole option, to(I)amend this Declaration of Annexation by executing and recording an amendment of this Declaration of Annexation provided that the amendment is consistent with the Declaration, or (ii) remove from the Project any property described in this Declaration of Annexation by executing and recording a rescission of this Declaration of Annexation, as long as all of the following conditions are satisfied at the time of the execution and recordation of the amendment or rescission: (a) no Parcel in the Annexation Property has been conveyed to an Owner: (b) no Common Area in the Annexation Property has been conveyed to the Association: and (c) assessments have not commenced for any Parcel in the Annexation Property. IN WITNESS INHERE F.the undersigned Declarant has executed this Declaration of Annexation on this JV_jhday of tS Z Y r-1, 200-4. DECLARANT: SAND CREEK BUSINESS CENTER II, L.P., a California limited partnership By: Sand Creek Business Center Management,Inc., a California corporation, Its General Partner By: b— Arthur L. Lorenzini, resident 3 08/26/03 LITTLE&SAPUTO arroKNE»ArLAW 1901 OLYMPIC BOULEVARD,1404 WALNUT CREEK CA 91590-3021 f92s)911-sem Z 4756' 3 State of California Q=ty of Oontra Costa Ctn Septe der 11, 2043 before me, the undersigned, a Mary Public In and for said State, personally appeared Arthur L. loorse ini, Jr., personally krxun to me (or proved to me on the basis of satisfactory evidence) to be the persons) whose Timm(s) is/are subscribed to the within instrurent and acknowledged to rine that he/she/they executed the same in hist:/their authorized capacity(ies) , and that by his/her/their signature(s) cn the instrument, the person(s), or the entity upon behalf of which the persons) acted, emcuted the instnxrent. WIGS my hand official sea]. JOK. comm. 335461 Lp wiCt pneLrt-CAt ORNiA Signature M,Co �E is J i5,2D06 t Nam (typed Printed) (Seal) r r 475673 EXHIBIT "A" Parking Plan LtTTLE&SAPUTO 08/26/03 ATTORNErs eT L W 1901 OLYMPIC BOULEVARD.9180 WALNUTC04 CA 01598.5821 (926)25�911.501 F 1� �d 415673 Y E291B� PARKING PLAN SAND CREEK BUSINESS CENTER—PHASE 2 September 8,2003 Sheet 1 of 2 Dackg'ound This Exhibit A(hereinafter"Parking Plan")is prepared pursuant to Sections 2.17,2.18,3.4.10, 3.4.11,and 4.9 of the Declaration_ On Sheet 2 of the Parking Plan,Phase 2 of the Sand Creek Business Center is generally set forth within the perimeter of bold,dark black line that has intermittent dashes(the"Phase 2 Line");Phase 1 Line is also set forth on Exhibit A,and Phase I is to the east of Phase 2. Phase I. is comprised of Buildings 5,6,and 9,and related Common Area. This Phase 2 Little is generally consistent with the property line defining Parcels A,B,C,D,and E on Parcel Map Subdivision MS365-02(the"Map7%the Remainder Parcel is set forth on the Map, and it is generally shown to the west of Phase 2. It may be annexed in the future. 4n Sheet 2 of the Parking Platt,Building 4 is built within Parcel B of the Map,Building 7 is built within Parcel C of the Map,and Building 8 is built within Parcel D of the Map. The Common Area on the Map is set forth as Parcel A and Parcel E,and the Common Area and Association Maintenance Area are generally all those areas outside of Building 4(BLDG.-4),Building 7(BLDG.--7),and Building 8 (BLDG.-8)on Sheet 2 of the Parking flan. Exclusive Parking,M Area The"Exclusive Parking Area"set forth on Sheet 2 of the Parking Plan are all those portions of the Common Area and Association Maintenance Area,which are drawn as parking spaces on Sheet 2 of the Parking Plan,and are numbered as follows: 187 through 313A.;313B through 343;417 and 418; 508 through 556;and 571 through 573. Exclusive LQadinaArga The"Exclusive Loading Area"set forth on Sheet 2 of the Parking Plan are all those portions of the Common Area and Association Maintenance Area,which are generally bounded in width by a solid line,and in length by a light dashed line,and are adjacent to BLDG.--4,and are labeled LOADING. Exhibit A-Parking Plan-SCBC Phase 2.wpd i S f,'73 �Lpg Gens P, � r a � � Xi crow„ i• y a a.m ti ro ws v} i $ar. C3 rz va o RECORDED AT THE REQUEST OF: CONTRA COSTA Co Recorder Office STEPHEN L, 11IR, Clerk-Reorder OCC— 2002-0466676-00 WHEN RECORDED RETURN TO: Check Number ,77 t,.x a( CtC i'3u�;Q4.,.eThursday, DEC 26, 2002 09:14:013 t� MIC $1.00=0 $4,001REC $6.00 TCF $3.00, Tel Pd $16.00 Nbr-NO1229381 d1�A C1�35 � l� ft-a FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF SAND CREED BUSINESS CENTER. A Common Interest Development THIS FIRST AMENDMENT TO DECLARATION ("Amendment") is made this day of 2002, by SAND CREEK BUSINESS CENTER I, L.P., a California limited partnership ("Declarant"). Declarant is the owner of all the real property and Improvements thereon located in the City of Brentwood, County of Contra Costa, State of California, described as follows: Parcels A, B,C and D, as shown on Parcel Map Subdivision MS 356-00, filed for record on July 26, 2002, , in Book 184 of Maps at Pages 23 and 24, in the Official Records of the County of Contra Costa, State of California. No Parcels within said real property have been conveyed by Declarant. On August 8,2002,Declarant recorded its Declaration of Covenants,Conditions and Restrictions of Sand Creek Business Center in the Office of the County Recorder of Contra Costa County, California, as Instrument No. 02-277261 of the Official Records (" Declaration"). By this document, the Declaration is amended pursuant to the provisions of Section 10.1 thereof. 1. Section 3.4.10 of the Declaration is hereby amended to read in its entirety as follows: 3.4.10 Exclusive Loading Areas: Each Owner shall have an exclusive right and easement for the use, possession and enjoyment of the parking spaces and loading Improvements constructed within an Exclusive Loading Area on or adjacent to that Owner's Parcel. All easements to Exclusive Loading Areas are subject to the right of the Association to enter in and upon the Exclusive Leading Area as provided by and in accordance with the limitations upon such right as set forth in this Declaration. One hundred eighty(180)days after all of the Additional Property has been annexed to the Project and Declarant no longer owns any Parcel within the Project, any Exclusive Loading Area which has not 1 12/20/02 LITTLE& SAPUTO AMRNEY5 AT LA w 1901 OLYMPIC BOULEVARD,#100 f WALNUT CREEK,CA 94396-3024 (925)944.5000 C-3 been assigned to an Owner in a deed executed by Declarant shall no longer constitute an .Exclusive Loading Area. If any Exclusive Loading Area is at anytime used for landscaping purposes, it shall continue to constitute Exclusive loading Area, but it shall be subject the provisions of Section 5.1.2. 2. Section 4.5 of the Declaration is hereby amended by adding the following sentences to the end thereof: Each Building has a single common electric meter that serves the Building exterior lights as well as certain parking lot and/or other electrolier pole lights. Each Owner shall have the sole responsibility to maintain electric service at all times to such common electric meter. The Association will maintain and replace the light fixtures, including bulbs, on all Building exteriors and will maintain and replace the electrolier pole lights, including bulbs, in the Common Area and Association Maintenance Area. The Association shall be provided with a key to the meter room for each Building. 3. Section 4.11 of the Declaration is hereby amended to read in its entirety as follows: 4.11 SIGNS: All signs displayed in the Project shall be attractive and compatible with the design of the Project and shall comply with all applicable local ordinances and the signage program prepared by Superior Electrical Advertising design no.02-11-3320-00 titled"Sand Creek Business Center Signage Program"and approved by the City,and as this may be amended by the Board and the City from time to time. The Board may establish additional uniform Rules to govern the location, size and appearance of signs; provided, however, any sign which is installed consistent with the current Rules at the time of the installation, including a substantially similar replacement sign, if necessary, may remain in place(provided that it is properly maintained in good aesthetic condition consistent with any applicable Rules governing the maintenance of signs)notwithstanding any subsequent change to the Rules. 4. Section 4.13 of the Declaration is hereby amended to read in its entirety as follows: 4.13 USE AND OCCUPANCY OF BUILDINGS AND PARCELS: Each Parcel and Building may be used for the purposes which are permitted without conditional use permit by local ordinance within Subarea A of the PD-40 zone; provided, however, the following uses are only permitted if approved by(a)Declarant while Declarant then owns any Parcel in the Project,or(b) the Architectural Committee after Declarant no longer owns any Parcel in the Project: (1) manufacturing uses, including food products, pharmaceuticals and similar products, and(2) commercial uses which manufacture their primary product within a Building such as drapery shops, cabinet shops,upholstery shops and similar uses. Other uses which are permitted by local ordinance within Subarea A of the PD-40 zone are not permitted unless, however, the use is expressly approved by(a) Declarant while Declarant then owns any Parcel in the Project, or(b) the Architectural Committee after Declarant no longer owns any Parcel in the Project. No Parcel or Building may be used for residential purposes. No Owner may permit or cause anything to be done or kept upon or in a Parcel which the Board reasonably determines either obstructs or interfere with the rights of other Owners or is noxious,harmful or unreasonably offensive to other Owners. No outside storage or recycling (except as authorized by Section 4.12) or outside business activities are permitted within the Project at anytime. Each Owner shall comply with all of the requirements of all federal, state and local governmental authorities, and all laws, ordinances, rules and regulations applicable to the Owner's Parcel. 2 12/20102 LITTLI & SAPUTO ATTORNEYS AT L.AW 1901 OLYMPIC BOULEVARD,#100 WALNUTCREEK,CA 94595-5024 (9235 944-5000 _ 49567-6 5. Section 4.8 of the Declaration is hereby amended by adding the following sentence to the end thereof: No overnight parking is permitted within the Project 6. Section 5.1.2 of the Declaration is hereby amended to read in its entirety as follows: 5.1.2 Exclusive Loadina Area: Each Owner is responsible for maintenance, safety and all liability relating to any loading Improvements constructed within the Loading Areas; provided, that any parking spaces established within an Exclusive Loading Area shall be maintained by the Association in accordance with the maintenance obligations established by Section 5.1.3, below. Exclusive Loading Areas may be developed and used for parking, loading and ancillary uses. In addition,Exclusive Loading Area may be used for landscaping purposes (subject to Article XI) provided that the Owner pays to the Association any amounts(based upon a formula or schedule to be agreed to in writing by the Owner and the Board)calculated to cover the increased operating expenses attributable to such landscaping. Any such amounts shall be added to the Regular Assessment levied by the Association against the Owner's Lot and the increased amount shall be the Regular Assessment levied against the Owner's Lot. Any landscaping within Exclusive,irrigation and related Improvements within Exclusive Loading Areas shall be maintained by the Association. 7. Section 5.5.4 is hereby added to the Declaration to read as follows: 5.5.4 Irrigation Controller: Certain Buildings have an electric connection for a Common Area irrigation controller which is served by a common electric meter that serves that Building. Each Owner shall al all times maintain electric service to any such irrigation controller. The Association will maintain the irrigation controllers. 8. Invalidation of any provision contained in this Amendment by judgment,court order,or otherwise, shall in no way affect any other provision contained herein, or in the Declaration, which shall remain in full force and effect. 9. All terms used in this Amendment which are defined in the Declaration shall have the same meaning as in the Declaration. IN WITNESS WHEREOF, Declarant has executed this Amendment on the day and year first written above. DECLARANT. STATE OF CALIFORNIA COUNTY OF SAND CREEK BUSINESS CENTER I, L.P., On xs ev- �� ', ,before me, a California limited partnership .personally appeared u ' + v' (or Proved to me on the basis of Sand Creek Business Ce nagement, Inc., satisfactory evidence) to be the person4o whose named, - a California corporation is/pe subscribed to the within instrument and acknowledged Its General Partner to me that hels key executed the same in his/berAheir authorized capacityt(ie"'and that by hls/hoFkheir sigraturr,w— on the instrument,the persou(@s br the entity upon behalf of which the persom(s)acted,executed the instrument. WITNESS my hand and official seal. By: h-. J� �lt� Arthur L. Lorenzini Its Press diad#Itp##its{aN#IE###tflltli##S#1###11#Uti##111#13pi1#Ntl#g1#a#Igl#i1N$!#t###� 3 BABUL K. 8t'M 12/20/02 LITTLE& SAPUTO — coltlllJ #IM7N yy} ArrORNEYS AT I AW NOTAkY PUWC•CALIFORMA 6f 1901 OLYMPIC BOULEVARD,1100 UN WEDCOUNN WALNUT CREEK,CA 94596-5024 � my 04M.Ev.June 9?.me � (925)944-5000 #NpN###tl##C1#p#I:It####I6Nt##INiNlitil#3Hli#iH3##I###t#!#t#Hil#ttfNNB#Nllr / CERTIFICA'T'E 495G A The President and Secretary of the Sand Creek Business Center owners Association,a California nonprofit mutual benefit corporation, hereby certify that the foregoing amendment was duly made and assented in accordance with the requirements of Section 10.1 of the Declaration. Saeid Creek Business C r owners Association, a California Nonprofit utual Benefit Corporation Date: 2- > , 2002 By: Its President Date: / ,�-� -3 , 2002 By: Its Secretary STATE OF CALIFORNIA r`4_ ) STATE OF CALIFORNIA COUNTY OF COUNTY OF On at � .before me, (M �M' ZOO�' ,before me, personally personally appeared "it C (or proved to me on the basis of to proved to me on the basis of satisfactory evidence) to be the persoo4W whose namekW satisfactory evidence) to be the persoAw-whose namcie iszoro subscribed to the within instrument and acknowledged isise subscribed to the within instrument and acknowledged to me that helshehhoy executed the same in hisAtcrfttiff to me that he/sheA tdy executed the same in him authorized capaclty4ios"nd that by histher4#eir signaturgW authorized capacity4ies,and that by hisfha04tcirsignatu on the instrument,the persorl**r the entity upon behalf of on the instrument,the persoa(a)or the entity upon behalf of which the persog(py9cted.executed the instrument. which the persons)acted,executed the instrument. WITNESS my hand and official seal. WITNESS my hand and official mi. #Iqq}f18a1HgEgtill#aq#gNgala#liaggql#la#glHaSliq#f#ilgl4ll#ltaq� tpgglqfNqiqqtli#ggqqqq#qalq#ggtaq#l{Ilgglqq#glittafn{{iaiti KABUL K. SHETH KABUL K. SHBTH NOTAAYY PUsuC1-�FOiNla 01 NOTARY PUCOMM. 135 UFO SARI MATEO COUNTY A107A A f'U8170-C COUNTY June 27,2tKi8 SAN MATEo ccxiAfly nny Comm.tjcF. My Comm.Erp.Jute 27,goal �tnia#tgilagtqq#4H11ygtHS#N#11#It#NINq#afl#N#gNN#q#Nf##{E#a1Ntl#gi#i�6 4 gigtltgi{iq#ggigqiqqqqtqqi#1at#figtgglf##tigtiU113agitNigqiqq 12120/02 LITTLE&SAPUTO erTORNEra,lrcnw 1901 OLYMPIC BOULEVARD,B100 p�(( /� WALNUT CREEK,CA 94596.5024 END OF DOCUMEI'T (925)944-5000 ir'