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PP 1996-590
PCA0J c- K- rIt� E 4 MEMORANDUM TO: Dawn Honeywell, City Attorney FROM: Wally Nesbit, Associate Planner VIA: Christine di lorio, Planning Manager CO DATE: 8/18/97 RE: LAPIS ENERGY CC &R'S Please find the attached CC &R's for your review, in reference to the above subject. I have also attached a copy of the comments from this Department, as well as those from Public Works. If you have any concerns regarding these regulations, please forward them to me at your earliest convenience. Should you have any questions regarding this information, please call me at x7069 or Christi at x7071. QUA MEMORANDUM TO: Public Works Department; Designated Review Staff FROM: Wally Nesbit, Associate Planner DATE: July 21, 1997 RE: LAPIS ENERGY CC & R'S (PM 28422) 1 ' r f� 1 i V , i In regard to the above, I have reviewed the restrictions as submitted on July 8. The following comments are provided: 1. No copy of "Exhibit B" as referred to in the document is attached. 2. Article 2, Section 2.1 b) - City to approve all sales display /exhibits associated with this Section. 3. Article 8, Section 8.2 - Include City as a designated approval entity for signs. 4. Article 9, Section 9.3 - "falls" should be "fails ". 5. Article 14, Section 14.3 - Any plan or improvement construction alterations, etc., to be subject to City approval as necessary. A copy of these CC &R's was previously furnished to you for comment. This information is provided to assist in any further comment on or requirements for this project, which your Department may deem necessary. Should you have any questions, please call me at x7069. c: Building and Safety Planning Manager T4ht 4 e(P QuiRm MEMORANDUM TO: Wallace Nesbit, Associate Planner FROM: Hector Guzman, Assistant Engineer I DATE: July 29, 1997 SUBJECT: Lapis Energy - CC &R's Please add the word "onsite" to Article VIII, Section 8.8 between the words adjacent and streets as shown in the attached copy of the CC &R's. hg equipment shall be prohibited upon any parcel except in accordance with the Maintenance Corporation Rules. 8.7 Antennae and other Roof Structures. No television, radio or other electronic towers, aerials, antennae or devices of any type for the reception or transmission of radio and television broadcasts or other means of communication shall hereafter be erected, constructed, placed or permitted to remain on the Property unless and until the same shall have been approved in writing by the Maintenance Corporation (which approval shall not be unreasonably withheld) and the City, to the extent that such approval is required by City Ordinance, or unless the same be contained within a building or underground conduits, or unless erected pursuant to the easement granted in Section 2.2. No other appliances or installations on exterior roofs of structures shall be permitted unless approved by the Maintenance Corporation. ONSI -M 8.8 Drainase. All drainage of water from any Parcel shall drain or flow into adjacent"streets or alleys, or into storm drain systems or facilities, and shall not be allowed to drain or flow upon, across or under any other portion of the Property unless pursuant to an easement for such purpose granted in Article II or by any other recorded agreement. Except as otherwise provided herein, an Owner shall not alter the drainage of water which exists pursuant to the drainage plan originally created at the time of the initial sale of its Parcel by Declarant to such Owner., except through the use of a positive drainage device which does not materially affect the concentration or flow direction of drainage water under said drainage plan. 8.9 Leases. Any agreement for the leasing or rental of a Parcel or portion thereof or space within a building thereon (hereinafter in this Section referred to as a "Lease ") shall provide that the terms of such Lease shall be subject in all respects to the provisions of this Declaration. Such Lease shall further provide that any failure by the lessee thereunder to comply with the terms of this Declaration shall be a default under the Lease. All Leases shall be in writing. The Owner of said leased or rented property has the duty and. obligation to furnish the Maintenance Corporation with the name or names of the .individuals currently leasing or renting said property and to maintain with the Maintenance Corporation a record of the current mailing address of said Owner. Any Owner who shall lease its Parcel or any portion thereof shall be responsible for assuring, compliance with this Declaration by such Owner's lessee. Mini Storage tenants are exempt from this requirement. 8.10 Hazardous Waste. a) In the event any Owner constructs or operates, or causes to be constructed or operated upon its Parcel any facility the operation of which involves the manufacture, use, transportation, storage or disposal of any hazardous or toxic materials or substances, including, without limitation, a gasoline service station, such construction and operation shall in all events be subject to the prior approval of the Maintenance Corporation and in accordance with the terms of this Declaration. Such Owner shall comply in all respects with all laws, ordinances, 17 Lapis Energy Development — CC&R's RECORDING REQUESTED BY AND WIN RECORDED, MAIL TO: (Space above for Recorder's use only) DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALIFORNA July 7, 1997 D 1ECSVE JUL 3 1997 CITY OF LAQUINTA PLANNING DEPARTMENT DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALIFORNA TABLE OF CONTENTS Pa -e Preamble----------------------------------------------------------------------------------------- - - - - -- - l Recitals--- ----- -- - - -- 1 ARTICLE I — Definitions ------------------------------------------------------------------------------------------ Architectural Committee. Articles and Bylaws ------------- ------------------- Assessments Board City------------------------------------------ - - - - -- -------------------------- - - - - -- ---- - - - - -- --------------- - -- CommonExpenses---------------------------------------------------------------------------------------- Declarant DrivewaySystem----------------------------------------------------------------------------------------- Improvements Maintenance Corporation----------------------------------------------------------------------------- Maintenance Corporation Management Documents_____________________ ___ Maintenance Corporation Rules________ _____ ____________________ ______ _____ ___ ______ ___ _ __ _ __ _ Member Mortgageand Mortgages---------------------------------------------------------------------------- Official Records. Owner Parcel Property------------- - - - - -- -- - - - - -- ----------------------------------------------- - - - - -- ----------------- - - - - -- ARTICLE II - Rights of Ownership and Easements ---------- ------------------------------------- 2.1 Development Rights and Easements Reserved to Declarant --------- 2.2 Certain Easements for Owners 2.3 Additional Easements for Declarant 2.4 Rights and Duties: Utilities ------ ____---------------------------------------------------- 2.5 Subordination 2.6 No Waiver 2.7 Assessment District 2 2 2 2 3 3 4 4 4 4 4 4 4 5 5 5 6 6 6 6 6 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALIFORNA TABLE OF CONTENTS (Continued) Page ARTICLE III - Duties and Powers of the Maintenance Corporation --------------------------------------- 7 3.1 General Duties of the Maintenance Corporation- --- ---- --------- ---- -- ---- -- ---- -- 7 3 -2 General Powers of the Maintenance Corporation - - ------- ---- --------- ---- -- ----- -- --- - -- 7 3.3 Power of Attorney-------------------------------------------------------------------------------------- - - - - -- 8 3.4 Maintenance Corporation to Defend Certain Actions -------------------------------------- 8 ARTICLE IV -Maintenance Corporation Memebership-------------------------------------------------------- 9 4.1 Membership- -------------------------- - - -- - - -- - - - - -- - - - - -- -------------- --------------- --------- - - - - -- 9 4.2 Transfer 9 4.3 Multiple Memberships-------------------------------------------------------------------------------- - - - - -9 ARTICLE V - Membership Voting Rights--------------------------------- ------ -- - - - - -- --------------------------- - - - -10 5.1 Voting Rights----------------- - - - - -- ----------------------------------------------------------------------- - - - - -- 10 5.2 Classes of Voting Membership---------------------------- ---- ---------- ---- ---- -- - - ---- ----- --- - ----- 10 5.3 Voting Requirements 10 5.4 Approval of All Members----------------------------------------------------------------------------- - - - -10 5.5 Vesting of Voting Rights---- - - - - -- ------------------------------------------------------------------ - - - - -- 1 I ARTICLE VI - Assessments - 12 6 -1 Agreement to Pay-------------------------------- - - - - -- ---------------------------------- - - - - -- ------------ - - --12 6.2 Capital Improvement Assessments ------------------------------------ ------ __--- _-- _-------- _ - - -12 6.3 Regular Assessments-------------------------------------- 6.4 Special Assessments ---------------------------------------------------------------------------------- - - - - -- 12 6.5 Assessment Allocation 13 6.6 Date of Commencement of Regular Assessments -------------------------------------------- 13 6.7 No Offsets_ - - - -- 13 6.8 Subordination of Assessment Liens ------------------------------------------------------------- 13 6.9 Collection of Proportionate Share of Net Costs.__ __ --------------------------- -- ---- --- -13 ------------ 13 6.10 Maximum Assessments -13 ARTICLE VII - Enforcement of Assessments and Liens ----------------------------------------- 15 7.1 Delinquency---------------------------------------------- - - - - -- ------------------------ - - - - -- ------------ - - - - -- 15 7 -2 Foreclosure Sale --- - - - - -- ------------------- - - - - -- ------------------------------------------ - - -.15 7.3 Curing of Default ------------------------------------------------------------------------------------------------ 15 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALIFORNA TABLE OF CONTENTS (Continued) Page ARTICLE VIII - Use Restrictions -------------------------------------- - - - - -- 16 8.1 Use- --------------------- -- - ------------------------- - - - - -- ---------------------------- - - - - -- 16 8.2 Signs 16 8.3 Nuisance 16 8.4 Animals . - 16 8.5 Oil and Mineral Rights-------------------------------------------------------------------------------- - - - - -- 16 8.6 Unsightly Items---------------------------------------------- - - - - -- ----------------------------------------- - - - -16 8.7 Antennae and other Roof Structures 17 8.8 Drainage ---------------------------------------------------- --------------- - - - - -- - -- - - - - - -- - - - - -- ----- - - -.17 8.9 Leases 17 8.10 Hazardous Waste 17 8.11 Architectural Approval---------------------------------- - - - - -- -------------------------------------- - - - - -- 18 8.12 Architectural Committee 19 8.13 Approval Procedure - - - - -- -------------------------------------------------------------------------------- - - - -19 8.14 Nonliability for Approval of Plans___________________________ ___ _____ ____ _____ _____ ___ _ __ ___ __ _ _____ 19 ARTICLE IX - Repair and Maintenance------------------------------------------ - - - - -- ----------------------------- - - - -21 9.1 Repair and Maintenance by the Maintenance Corporation ----- ----- ----- ------- --- -- - -21 9.2 Repair and Maintenance by Owners________________________________ __ _______ ____ _____ ____ ___ _ __ ___ 21 9.3 Noncompliance by Owner --------------------------- 1 ------------------------------------------------------ 9.4 Maintenance of Public Utilities 21 ARTICLE X - Indemnity; Insurance-------------------------------------------------------------------------------------- - - - -22 10.1 Indemnity----------------- - - - - -- ------------------------------------------------ - - - - -- ----------------------- - - - - -- 22 10.2 Maintenance Corporation's Insurance_ ______ ____ _____ _____ __ ___ ______ _____ ____ _ ____ _ _____ ___ _ __ 22 ARTICLE XI - Taxes; Mexhanic's Liens ------------------------------ ---------------------- 11.1 Taxes and Assessments -------------------------------------------------------- 11.2 Mechanic's Liens ARTICLE XII - Mortgagee Protection-, ----------------------- 12.1 Priority of Mortgage Lien -------------------- 12.2 Curing Defaults ------ ---------- - -------------------- ARTICLE XIII - Amendment Provisions -------------------- 13.1 Amendments --------------- 23 23 23 24 24 24 25 25 DECLARATION OF COVENANTS, [ AND RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALlORNA TABLE OF CONTENTS (Continued) Page ARTICLE Xll/— General Provisions 2 2h 14.1 E Enforcement 2 27 14.2 N No Waiver 2 27 14.3 C Cumulative ALenoedies. ----- ------------------- ------------------------- -------------- ------------------- 2 27 144 S Severability ____________________.______________27 14.5 C Covenants tn Run with the Land Term 2 27 14.6 C Construction 2 27 14.7 S Singular Includes Plural, -------------------------- ---------------------------------------------------------- 7 7 14.0 N Nuisance 2 27 14.9 ' 'Feco -------------------------------------------------------------------------- ------------------------- 2 2Q 14.10 N Notices 2 28 14.11 E Effect of Declaration � 2 28 14.12 N Nonliubility0fOffioia}s -------------------------------------------------------------------------------- --- �28 14.13 C Construction By Declarant _------------------------------------------- ----------------- ------------- 2 - 14.14 E Exempt Property _______________ ----------------------------------------------------- 14.15 E Estoppel Certificate, ----------- ----------------------- ------------------------------------------------- _ - ---- 29 14.16 C Conflicts Between Maintenance Corporation Management Documents ___30 � ____________________________________________]| DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALIFORNA This declaration of Covenants, Conditions and Restrictions and Reciprocal Easement Agreement ( "Declaration ") is made this day of , by Lapis Energy Organization, Inc. a California Corporation ( "Declarant "). Preamble The intent and purpose of this document is to provide for the orderly development and maintenance of Parcel Map No. 28422, a commercial subdivision. The administration and enforcement of these covenants will be the responsibility of the Declarant and its successors and assigns. Architectural control will be the responsibility of the Architectural and Planning Board appointed by the Declarant, which will control construction of the buildings and improvements proposed within the development for the mutual benefit of all lot owners. Recitals WHEREAS, Declarant owns certain real property located in La Quinta, County of Riverside, State of California, which real property (the "Property ") is commonly known as Lapis Energy Development and is more fully described in Exhibit A attached hereto and made a part hereof, and depicted on the Site Plan attached hereto as Exhibit B and made a part hereof, and, WHEREAS, Declarant intends to develop the Property for automotive retail, mini storage, gas station and other related retail and commercial uses and desires to establish certain covenants, conditions and restrictions upon the Property which will constitute a general scheme for the construction, maintenance and management of the Property and the Improvements (as hereinafter defined) thereon, and for use, occupancy and enjoyment thereof, all for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property. NOW THEREFORE, Declarant hereby covenants, agrees and declares that all of its interest, as the same may from time to time appear in the Property, shall be held and conveyed subject to the following covenants, conditions, restrictions and easements, which are hereby declared to be for the benefit of Declarant and its successors and assigns. These covenants, conditions, restrictions and easements shall run with all interests in the Property, shall be binding upon all parties having or acquiring any right or title in the Property or any part thereof, shall inure to the benefit of Declarant and its successors and assigns and are imposed upon all of the interests in the Property as servitude's in favor of each and every of said interests as the dominant estate or estates. Lapis Energy Development — CC&R's ARTICLE I Definitions 1.1 Unless the context clearly indicates otherwise, the following terms used in this Declaration are defined as follows: "Architectural Committee" shall mean the Architectural Committee created pursuant to Section 8.13 hereof. "Articles and Bylaws" shall mean, respectively, the Articles of Incorporation and Bylaws of the Maintenance Corporation, as the same may from time to time be duly amended. "Assessments" shall mean Capital Improvement Assessments, Regular Assessments and Special Assessments, as such terms are defined in Article VI. "Board" shall mean the Board of Directors of the Maintenance Corporation. "City„ shall mean the City of La Quinta, State of California. "Common Expenses" shall mean the actual cost or amounts paid by the Maintenance Corporation and all Members for: a) maintenance, management, operation, construction, installation, repair and replacement of the Property, the Driveway System and all other areas which are maintained by the Maintenance Corporation pursuant to the provisions of this Declaration; b) unpaid Assessments; C) management and administration of the Maintenance Corporation, including, without limitation, compensation and fees paid by the Maintenance Corporation to managers, accountants, attorneys and employees; d) to the extent not metered or billed to individual Owners, utilities, trash pickup and disposal, gardening, landscaping, trimming of trees and other services which generally benefit the Property; e) insurance and bonds maintained by the Maintenance Corporation; f) property taxes and assessments paid by the Maintenance Corporation; g) discharge of any lien or encumbrance levied against the Property, h) other expenses incurred by the Maintenance Corporation or any other similar entity established by Declarant; 2 Lapis Energy Development — CC&R's i) reasonable reserves as deemed appropriate by the Maintenance Corporation; and j) other expenses incurred by the Maintenance Corporation for any reason whatsoever in connection with the Property, the costs of any other item or items designated by the Maintenance Corporation, or in the discharge of any duties or powers of the Maintenance Corporation, including without limitation, the duties of the Maintenance Corporation set forth in Article VII hereof. Common Expenses shall be allocated equally among the Parcels and borne by each Owner of a Parcel by means of a fraction, the numerator of which is the area in square feet of a gross Parcel owned by such Owner and the denominator of which is the total gross area in square feet the Property. "Declarant" shall mean: (a) Lapis Energy Organization, Inc. a California Corporation, its successors and assigns, by merger, consolidation or by purchase of all or substantially all of its assets; and (b) any person or entity, his or its successors and assigns, who purchases or ground leases from the Declarant named in subsection (a) of this Section one or more Parcels for the purpose of selling or leasing Parcels to the ultimate users, if such purchaser or lessee agrees in writing with Declarant to accept the assignment of Declarant's rights and duties as to the portion of the Property purchased or leased and such writing is recorded against such portion purchased or leased. "Driveway System" shall mean the interior roadways within the Property and designated as "Easements for Reciprocal Access, Utilities, Drainage Purposes and Emergency Vehicle Access" on Exhibit B. "Improvements" shall mean all: a) structures and appurtenances thereto of every type and kind constructed upon the Property, including, without limitation, buildings, outbuildings, walkways, sprinkler and sewer pipes or lines, garages, carports, roads, driveways, parking areas, fences, screening walls, retaining walls, awnings, patio and balcony covers, stairs, decks, landscaping, hedges, slopes, windbreaks, the exterior surfaces of any visible structure, trees and shrubs, poles, signs, solar or windpowered energy systems or equipment, and water softener or heater or air conditioning and heating fixtures and equipment. b) demolition or destruction by voluntary action of any structure or appurtenance thereto; c) grading, excavation, filling or similar disturbance to the surface of the land, including, without limitation, change of grade, change of ground level, change of drainage pattern or change of stream bed; d) landscaping, planting, clearing or removing of trees, shrubs, grass or plants; and 3 Lapis Energy Development — CC&R's e) any changes or alteration of any previously approved Improvement, including, without limitation, any change of exterior appearance, color or texture. "Maintenance Corporation" shall mean Lapis Energy Development Maintenance Corporation, a nonprofit mutual benefit corporation, incorporated under the laws of the State of California, its successors and assigns. "Maintenance Corporation Management Documents" shall mean the Articles, Bylaws, Maintenance Corporation Rules and any amendments to any of the foregoing. "Maintenance Corporation Rules" shall mean rules adopted by the Maintenance Corporation pursuant to the Bylaws. "Member" shall mean every person or entity that qualifies for membership in the Maintenance Corporation pursuant to Article IV hereof, including Declarant, so long as Declarant qualifies for membership pursuant to said Article. "Mortgage" and "Mortgages" shall mean, respectively, any duly recorded first priority deed of trust or mortgage encumbering a Parcel and the holder of the mortgagee's or beneficiary's interest under any such Mortgage. "Official Records" shall mean the Official Records of the County of Riverside, State of California. "Owner" shall mean one or more persons or entities who are alone or collectively the record owner of the simple title to a Parcel, including Declarant (to the extent Declarant is the owner of one or more Parcels) and excluding those having any such interest merely as security for the performance of any obligation. "Parcel" shall mean a lot shown on a final map or parcel shown on a subdivision or parcel map filed for record in the County of Riverside, as such lot or parcel may be adjusted by lot line adjustments recorded from time to time, to the extent such lots or parcels are part of the Property, and any Improvements thereon, "Parcel" shall specifically exclude any streets or property dedicated to and accepted by the City. "Property" shall mean that certain real property more fully described in Exhibit A attached hereto and made a part hereof. 4 Lapis Energy Development — CC &R's ARTICLE H Rights of Ownership and Easements 2.1 Development Rights and Easements Reserved to Declarant a) Improvements. There are hereby reserved to Declarant, together with the right to grant and transfer the same to the Maintenance Corporation, the City and /or any public utility or assessment district, or otherwise, easements over the Property for ingress and egress and for the purpose of constructing, erecting, operating, and maintaining thereon, therein and thereunder roads, streets, walks, driveways, and parkways for the installation and maintenance of electric, telephone, cable, television, telecommunications lines, water, gas, sanitary sewer lines, drainage facilities and landscaping, including without limitation, the Driveway System and any such facilities shown on any recorded final subdivision or parcel map covering the Property; provided, however, any such easements shall, to the extent practicable, be limited to the use and enjoyment by the Owners of their Parcels. Declarant and/or the Maintenance Corporation shall repair any damage to and complete any restoration to the Property caused or necessitated by such installation and maintenance within the reasonable time after the occurrence of such damage or need for restoration. b) Construction Sales. There are hereby reserved to Declarant over the Property, together with the right to grant and transfer the same to Declarant's sales agents and representatives and prospective purchasers of Parcels, easements for construction, display, maintenance, sales and exhibit purposes in connection with the erection and sale or lease of Parcels within the Property; provided, however, that such use shall not be for a period beyond the sale by Declarant of all Parcels within the Property and provided further that no such use by Declarant shall otherwise unreasonably restrict the Owners in the reasonable use and enjoyment of their Parcels. Declarant shall repair any damage to and complete any restoration of the Property caused or necessitated by such construction, display, maintenance, sales and exhibit purposes within a reasonable time after the occurrence of such damage or need for restoration. c) Emergency Vehicle Access. There are hereby reserved to Declarant, together with the right to grant and transfer the same to the City and /or public or private entities, a non - exclusive easement for public emergency vehicles and personnel acting in a public emergency over all portions of the Property designed for vehicular or pedestrian traffic. 2.2 Certain Easements for Owners. Declarant hereby reserves to itself, its successors and assigns, and agrees that it will grant to all Owners together with the right of such Owners to grant and transfer the same, nonexclusive appurtenant easements for ingress, egress, use and enjoyment (including, without limitation, the unrestricted right of ingress and egress to such Owner's Parcel). These rights shall be subject to control and management 5 Lapis Energy Development — CC&R's by Declarant as more particularly provided in Section 3.2, and to all of the easements, covenants, conditions, restrictions and other provisions contained in this Declaration. 2.3 Additional Easements for Declarant. There are hereby reserved to Declarant over the Property, easements for ingress, egress and such other purposes as are necessary or desirable to permit Declarant to discharge its obligations and powers as described in this Declaration. 2.4 Rights and Duties: Utilities. Wherever sanitary sewer connections, water connections, air conditioning connections or ducts, electricity, gas, telephone and cable television lines or drainage facilities are installed within the Property, any Owner as the owner of any Parcel served by said connections, lines or facilities shall have, and there is hereby reserved to Declarant, with the power to further grant and transfer the same to each such Owner, an easement to the full extent necessary for the full use and enjoyment of such portion of such connections which service such Owner's Parcel, and to enter, or have utility companies enter, upon any portion of the Property, including, without limitation, upon the Parcels in or upon which said connections, lines or facilities, or any portion thereof lie, to repair, replace and generally maintain said connections as and when the same may be necessary as set forth below, provided that any damage caused by such entry shall be repaired by such Owner or utility company as promptly as possible after completion of work thereon. Entry for emergency purposes may be immediate and entry for other than emergency repairs shall be made only after notice has been given to the Owner of the Parcel being entered and shall be made with as little inconvenience as possible to such Owner and any damage caused thereby shall be repaired by the entering party. 2.5 Subordination. Declarant hereby agrees, and any grantee of any easement by acceptance of such conveyance agrees, that the easements conveyed as described in this Article shall be subordinate to any easement which has been or will be conveyed over the property encumbered by such easement in favor of any public authority or utility company, it being further agreed that any easement in favor of a public authority shall be superior to any easement in favor of a utility company. Any such grantee agrees to execute any documents acknowledging the subordination of such easement that may be required by Declarant. 2.6 No Waiver. No Owner may exempt itself from personal liability for Assessments duly levied by the Maintenance Corporation or release the Parcel owned by it from the liens, charges and other provisions of this Declaration by waiver of the use and enjoyment of the Property, abandonment of its Parcel or otherwise. 2.7 Assessment District. Declarant reserves the right to establish in cooperation with the City a special tax assessment district for the performance of all or a portion of the maintenance and other functions within the responsibility of the Maintenance Corporation, and to convey, lease or otherwise transfer all or any portion of the Property to said district. 6 Lapis Energy Development — CC&R's ARTICLE III DUTIES AND POWERS OF THE MAINTENANCE CORPORATION 3.1 General Duties of the Maintenance Corporation. The Maintenance Corporation, through the Board, shall have the duty and obligation to: a) maintain and otherwise manage all easements, real and personal property and all facilities, improvements and landscaping thereon, including the Driveway System, which the Maintenance Corporation is obligated to repair or maintain pursuant to this Declaration b) within ten (10) days of the mailing or delivery of a written request by an Owner, provide such Owner with (i) a copy of the Maintenance Corporation Management Documents, (ii) a copy of the most recent financial statement of the Maintenance Corporation, and (iii) a true statement in writing as to the amount of any unpaid Assessments, and information relating to late charges, interest and costs of collection, which, as of the date of the statement, are or may be made a lien upon such Owner's Parcel. A reasonable fee may be imposed for providing such statement, but in no event shall the fee exceed the reasonable cost to prepare and reproduce the requested documents; c) prepare and distribute to the Owners financial statements setting forth the Regular Assessment and any Capital Improvement Assessment for the following year and all other matters required by Section 1365 of the California Civil Code or any successor statute, and d) appoint the members of the Architectural Committee pursuant to Section 8.12 below. 3.2 General Powers of the Maintenance Corporation. Subject to any limitations contained in the Maintenance Corporation Management Documents, the Maintenance Corporation, through the Board, shall have the power, but not the obligation to: a) establish reasonable rules and regulations pertaining to the use of the Property; b) grant permits, licenses and easements on, over and under the Property to public utilities or governmental entities or agencies for utilities, roads and other purposes reasonably necessary or useful for the proper maintenance or operation of the Property; provided that such permits, licenses and easements shall not unreasonably interfere with the right of any Owner to the use and enjoyment of its Parcel; and C) perform any other actions which a nonprofit mutual benefit corporation has the power to perform as provided in Section 7140 of the California Corporations 7 Lapis Energy Development — CC &R's Code and Section 374 of the California Code of Civil Procedure or any successor statute of either of the foregoing. 3.3 Power of Attorney. In addition to any other rights, duties, obligations and powers granted to the Maintenance Corporation herein, and not in limitation of any such rights, duties, obligations and powers, each Owner appoints the Maintenance Corporation as its attorney -in -fact for the purpose of administering any losses or proceeds from condemnation, damage or destruction of all or any part of the Property to the extent such functions are the obligations of the Maintenance Corporation pursuant to the Maintenance Corporation Management Documents. All such proceeds shall be retained in the general funds of the Maintenance Corporation. 3.4 Maintenance Corporation to Defend Certain Actions. In the event that a lawsuit is filed against all or substantially all of the Owners as Members or a lien is levied against all or substantially all of the Property, the Maintenance Corporation may defend such lawsuit or cause such lien to be removed. The costs of such litigation or removal shall be a Special Assessment against all Owners joined as defendants in such lawsuit or whose property is covered by the lien and shall be allocated in the same manner as Regular Assessments are allocated to each Owner. Nothing contained herein shall in any way limit the rights of any Owner to retain counsel of its choice to represent it in such lawsuit at its own expense, or to seek contribution, reimbursement or damages from any other Owner. In the event that an Owner so chooses to retain its own counsel, it shall not be relieved of liability for the Special Assessment provided for in this Section. 8 Lapis Energy Development — CC&R's ARTICLE IV MAINTENANCE CORPORATION MEMBERSHIP 4.1 Membership. Every Owner, including Declarant as long as Declarant continues to be an Owner, by virtue of holding title to a Parcel shall be a Member. The terms and provisions set forth in this Declaration, which are binding upon all Owners, are not exclusive, as Owners shall, in addition, be subject to the terms and provisions of the Articles, Bylaws and Maintenance Corporation Rules, subject to Section 14.17. Membership of Owners shall be appurtenant to and may not be separated from the interest of such Owner in any Parcel. Ownership of a Parcel shall be the sole qualification for membership; provided, however, a Member's rights or privileges may be regulated or suspended for failure to comply with the Maintenance Corporation Management Documents after notice and hearing as provided in the Bylaws. 4.2 Transfer. Except for a pledge to a Mortgagee pursuant to a Mortgage and subject to Article X11, the membership held by any Owner shall not be transferred, pledged or alienated in any way, except that such membership shall automatically be transferred to the transferee of the interest of an Owner required for membership. Any attempt to make a prohibited transfer is void and will not be reflected upon the books and records of the Maintenance Corporation. The Maintenance Corporation shall have the right to record a permitted transfer upon the books of the Maintenance Corporation without any further action or consent by the transferring Owner. A Member who has sold his Parcel to a contract purchaser under a land sale contract or agreement to purchase or has leased his Parcel shall be entitled to delegate to such purchaser or lessee his membership rights in the Maintenance Corporation. Such delegation shall be in writing and shall be delivered to the Board before such purchaser or lessee may vote. However, the contract seller or lessor shall remain liable for all charges and Assessments attributable to his Parcel as long as such seller or lessor continues to be an Owner 4.3 Multiple Memberships. A Member may own more than one membership in the Maintenance Corporation by complying with the qualifications of membership as to more than one (1 ) Parcel as set forth in this Article. 9 Lapis Energy Development — CC&R's ARTICLE V MEMBERSHIP VOTING RIGHTS 5.1 Voting Rights. All voting rights shall be subject to the restrictions and limitations provided in the Maintenance Corporation Management Documents. 5.2 Classes of Voting Membership. a) The Maintenance Corporation shall have two (2) classes of voting membership: Class A: Class A Members shall be all Owners other than Declarant. Class B: The Class B Member shall be Declarant. The Class B membership shall cease for such periods during which Declarant is no longer an Owner. b) Each Class A Member shall be entitled to one (1 ) vote per each Parcel owned by such Member within the Property and the Class B Member shall be entitled to two (2) votes for each Parcel owned. C) Subject to the provisions of subparagraph (b) above, when more than one person owns a portion of the interest in a Parcel required for membership, each such person shall be a Class A Member and the votes for such Parcel shall be exercised as they among themselves determine, but in no event shall more than one (1 ) vote be cast with respect to any Parcel. The Maintenance Corporation may, but shall not be obliged to, refuse to recognize the vote or written assent of any such co- Owner, except the vote or written assent of the co -Owner designated in writing, executed by all of such co- Owners and delivered to the Maintenance Corporation. 5.3 Voting Requirements. For such periods as there is a Class B membership and unless otherwise specifically provided in this Declaration, any provision of this Declaration which requires the vote or written assent of a prescribed percentage of the total voting power of the Maintenance Corporation shall require the vote or written assent of the prescribed percentage of (a) the total voting power of all Members of the Maintenance Corporation; and (b) the total voting power of the Class B Member. 5.4 Approval of All Members. Unless elsewhere otherwise specifically provided in this Declaration and subject to Section 5.3 above, any provision of this Declaration which requires the vote or written assent of a prescribed percentage of the total voting power of the Maintenance Corporation shall be deemed satisfied by the following: a) The vote in person or by proxy of the specified percentage of all of the votes which are entitled to be cast by the entire membership of the Maintenance Corporation and by any class or classes of membership entitled to vote on such matter. Said vote shall be at a meeting duly called and noticed pursuant to the 10 Lapis Energy Development — CC&R's provisions of the Bylaws dealing with annual or special meetings of the Members: or b) Written consents signed by the specified percentage of all the votes which are entitled to be cast by the entire membership of the Maintenance Corporation and by any class or classes of membership entitled to vote on such matter. Said vote by written consent shall be solicited pursuant to the procedures provided in the Bylaws. 5.5 Vesting of Voting Rights. An Owner's right to vote shall vest immediately upon the date Regular Assessments commence against such Owner's Parcel pursuant to Section 6.6. 11 Lapis Energy Development — CC&R's ARTICLE VI ASSESSMENTS 6.1 Agreement to Pay. Each Owner is deemed to covenant and agree to pay Assessments to the Maintenance Corporation, such Assessments to be fixed, established and collected from time to time as provided in this Declaration. All amounts collected for any specific Assessment provided for herein shall only be used for the purposes for which such Assessment was collected 6.2 Capital Improvement Assessments. "Capital Improvement Assessment" shall mean a charge against each Owner and its Parcel levied by the Maintenance Corporation in any calendar year applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any installation, construction or replacement (other than due to destruction) of a described capital improvement upon the Property, including the necessary fixtures and personal property related thereto. The contributing Owners shall deem all amounts collected as Capital Improvement Assessments a contribution to the capital account of the Maintenance Corporation. 6.3 Regular Assessments. a) "Regular Assessment" shall mean the charge levied against each Owner and its Parcel representing such Owner's proportionate share of the estimated Common Expenses for the forthcoming fiscal year. The Regular Assessment shall be due and payable as established by Declarant in a written notice sent to the Owners, but not more frequently than in monthly installments. b) In the event the Maintenance Corporation determines that the amount budgeted for the current year is, or will become, inadequate to meet all Common Expenses for any reason, it shall immediately determine the approximate amount of such inadequacy, issue a supplemental estimate of the Common Expenses and determine the revised amount of the Regular Assessment and installments thereof, if applicable, against each Owner, and the date or dates when due. 6.4 Special Assessments. "Special Assessment" shall mean a charge against a particular Owner and its Parcel, directly attributable to such Owner for charges and costs that may include, without limitation, the following: a) cost of any action or undertaking on behalf of the Maintenance Corporation relating to the Property which is not specifically covered under any other Assessments; b) charges against any Owner consisting of reasonable late payment penalties and to reimburse the Maintenance Corporation for costs incurred in bringing such Owner and its Parcel into compliance with the provisions of this Declaration; and 12 Lapis Energy Development — CC&R's c) in the event the Maintenance Corporation undertakes to provide materials or services which benefit individual Parcels and which can be accepted or rejected by individual Owners at their option, such Owners in accepting such materials or services agree to reimburse the costs thereof as a Special Assessment. 6.5 Assessment Allocation. Capital Improvement Assessments and Regular Assessments levied against each Parcel and the Owner thereof shall be calculated in accordance with the fraction set forth in the definition of Common Expenses above. All Assessments may be collected at intervals selected by the Declarant. 6.6 Date of Commencement of Regular Assessments. Regular Assessments shall commence with respect to a Parcel upon the date such Parcel is conveyed to an Owner. 6.7 No Offsets. All Assessments shall be payable in the amount and at the time specified by the Assessment and no offsets against such amount shall be permitted for any reason. 6.8 Subordination of Assessment Liens. The foreclosure of any lien provided for in Article VII for the payment of Assessments, late charges, costs and interest levied by Declarant in connection with unpaid Assessments shall not operate to affect or impair the lien of a Mortgage, or the sale under a power of sale included in such Mortgage shall not operate to affect or impair such Assessment lien, except that any persons who obtain an interest through any such foreclosure, and their successors -in- interest, shall take title free of such Assessment lien or any personal obligation for said charges as shall have accrued up to the time of the transfer of title, but subject to the Assessment lien for all said charges that shall accrue subsequent to the transfer of title. Notwithstanding the foregoing, any such delinquent Assessments that were extinguished pursuant to this paragraph may be reallocated and assessed to all of the remaining Parcels as a Common Expense 6.9 Collection of Proportionate Share of Net Costs. The Maintenance Corporation may perform repair and maintenance obligations within or adjacent to the Property which may provide benefit to owners of adjacent property and may be entitled to reimbursement of a proportionate share of the costs of such repair and maintenance pursuant to agreements with such adjacent owners. To the extent such costs were previously included as Common Expenses, any amounts collected by the Maintenance Corporation from such owners for such purpose and pursuant to such agreement shall be applied against the Common Expenses. 6.10 Maximum Assessments. The Board shall not impose Assessments to defray the costs of any act or undertaking of the Maintenance Corporation if such Assessments are prohibited by Section 1366.1 of the California Civil Code, or any successor statute thereof. Additionally, unless the approval of a majority of the total voting power of each class of Members is otherwise obtained, the Regular Assessment for any fiscal year may not be increased over the amount of the actual Regular Assessment levied for the immediately preceding fiscal year by an amount more than the greater of (i) twenty percent (20 %); or (ii) the percentage increase as compared with the previous fiscal year in 13 Lapis Energy Development — CC&R's the U.S. Bureau of Labor Statistics, La Quinta Consumer Price Index or any similar index substituted therefor. 14 Lapis Energy Development — CC&R's ARTICLE VII ENFORCEMENT OF ASSESSMENT LIENS 7.1 Delinquency. Any Assessment provided for in this Declaration, which is not paid, shall be delinquent fifteen (15) days after the date such Assessment became due. If an Assessment becomes delinquent, Declarant may recover costs, late charges and interest permitted by Section 1366(d) of the California Civil Code or any successor statute thereto. The Assessments, together with such costs, late charges and interest, shall be a lien on the Parcel against which each such Assessment is made from and after the recordation of a notice of delinquent assessment which complies with Section 1367(b) of the California Civil Code or any successor statute thereto. Each such Assessment, together with such costs, late charges and interest, shall also be the personal obligation of the Owner of such Parcel at the time when the Assessment becomes due. The personal obligation shall not pass to any successor -in -title of an Owner unless expressly assumed by such successor or required by applicable law. If an action is commenced, there shall be added to the amount of such Assessment, additional Assessments which become due and payable with respect to such Parcel following the recordation of the notice of delinquent assessment, the costs, late charges, and interest as hereinabove provided in this Section, and in the event a judgment is obtained, such judgment shall include such costs, late charges and interest. Each Owner vests in the Maintenance Corporation, or its assigns, the right and power to bring all actions at law or any lien foreclosure against such Owner or other Owners for the collection of such delinquent Assessments. Each Owner is hereby deemed to have consented to and authorized the recordation against its Parcel of a notice of delinquent assessment. 7.2 Foreclosure Sale. Any Assessment lien provided for in Section 7.1 may be enforced in any manner permitted by Section 1367 of the California Civil Code or any successor statute thereto. Upon the affirmative vote of a majority of the total voting power of the Maintenance Corporation, the Maintenance Corporation, through its duly authorized agents, shall have the power to bid on a Parcel which is being foreclosed upon pursuant to this Article, and to acquire, hold, lease, mortgage and convey the same. Nothing herein shall prohibit actions against an Owner to recover sums for which a lien is created pursuant to this Article or shall prohibit the Maintenance Corporation from accepting a deed in lieu of foreclosure. 7.3 Curing of Default. Upon the timely payment or other satisfaction prior to the completion of any sale held to foreclose the lien provided for in this Article of. (a) all delinquent Assessments specified in the notice of delinquent assessment; (b) all other Assessments which have become due and payable with respect to the Parcel as to which such notice of delinquent assessment was recorded; and (c) reasonable costs, late charges, and interest, the Maintenance Corporation shall record an appropriate release of such notice upon payment by the defaulting Owner of a fee to be determined by the Maintenance Corporation to cover the costs of preparing and filing or recording such release. 15 Lapis Energy Development — CC&R's ARTICLE VIII USE RESTRICTIONS 8.1 Use. The Property shall generally be used for automotive retail, mini storage, gas station and related commercial and retail purposes permitted under the zoning requirements and other laws, ordinances, acts, rules, orders and regulations applicable to the Property, and in all events in compliance with the Maintenance Corporation Rules. In addition, the Maintenance Corporation shall have the right to establish such other uses upon the Property as the Maintenance Corporation in its sole and absolute discretion may determine. Notwithstanding the foregoing, any use of the Property must be in compliance with this Declaration. 8.2 Signs. No sign or billboard of any kind shall be displayed to the public view on any portion of the Property except: (a) such signs as may be used by Declarant and /or the Maintenance Corporation or its sales agents in connection with the development of the Property or the sale of any Parcel; (b) signs installed or displayed by the Maintenance Corporation; and (c) signs, the design and location of which have been approved by the Maintenance Corporation or the Architectural Committee; provided however, that an Owner may display on its Parcel a sign advertising such Owner's business conducted on such Parcel or the sale or lease of its Parcel so long as such sign shall comply with any customary and reasonable standards promulgated by the Maintenance Corporation or the Architectural Committee as to the size, color, shape, location or other qualification for permitted signs. Each Owner shall repair any damage to or complete any restoration of the Property caused or necessitated by the display of signs by such Owner or its agent within a reasonable time after the occurrence of such damage or need for restoration. 8.3 Nuisance. No noxious or offensive trade or activity shall be permitted upon any Parcel or any part of the Property, which shall in any way interfere with the intended enjoyment of each Owner of its respective Parcel. 8.4 Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept upon the Property 8.5 Oil and Mineral Rights. No oil drilling, oil development operations, oil refining, quarrying, or mining operations of any kind shall be permitted upon or in the Property nor, subsequent to the recording of this Declaration, shall oil wells, tunnels or mineral excavations or shafts be installed upon the surface of the Property or within five hundred (500) feet below the surface thereof. No derrick or other structure designed for use in boring for water, oil or natural gas shall be erected, maintained or permitted upon the Property. 8.6 Unsightly Items. All weeds, rubbish, debris or unsightly material or objects of any kind shall be regularly removed from each Parcel and shall not be allowed to accumulate thereon. All refuse containers, trashcans, woodpiles, storage areas, machinery and 16 Lapis Energy Development — CC &R's C, /VS ✓ kTj� - 51 6,' P"W / Hf�s, equipment shall be prohibited upon any parcel except in accordance with the Maintenance Corporation Rules. 8.7 Antennae and other Roof Structures. No television, radio or other electronic towers, aerials, antennae or devices of any type for the reception or transmission of radio and television broadcasts or other means of communication shall hereafter be erected, constructed, placed or permitted to remain on the Property unless and until the same shall have been approved in writing by the Maintenance Corporation (which approval shall not be unreasonably withheld) and the City, to the extent that such approval is required by City Ordinance, or unless the same be contained within a building or underground conduits, or unless erected pursuant to the easement granted in Section 2.2. No other appliances or installations on exterior roofs of structures shall be permitted unless approved by the Maintenance Corporation. 8.8 Drainaize. All drainage of water from any Parcel shall drain or flow into adjacent streets or alleys, or into storm drain systems or facilities, and shall not be allowed to drain or flow upon, across or under any other portion of the Property unless pursuant to an easement for such purpose granted in Article II or by any other recorded agreement. Except as otherwise provided herein, an Owner shall not alter the drainage of water which exists pursuant to the drainage plan originally created at the time of the initial sale of its Parcel by Declarant to such Owner, except through the use of a positive drainage device which does not materially affect the concentration or flow direction of drainage water under said drainage plan. 8.9 Leases. Any agreement for the leasing or rental of a Parcel or portion thereof or space within a building thereon (hereinafter in this Section referred to as a "Lease ") shall provide that the terms of such Lease shall be subject in all respects to the provisions of this Declaration. Such Lease shall further provide that any failure by the lessee thereunder to comply with the terms of this Declaration shall be a default under the Lease. All Leases shall be in writing. The Owner of said leased or rented property has the duty and obligation to furnish the Maintenance Corporation with the name or names of the individuals currently leasing or renting said property and to maintain with the Maintenance Corporation a record of the current mailing address of said Owner. Any Owner who shall lease its Parcel or any portion thereof shall be responsible for assuring compliance with this Declaration by such Owner's lessee. Mini Storage tenants are exempt from this requirement. 8.10 Hazardous Waste. a) In the event any Owner constructs or operates, or causes to be constructed or operated upon its . Parcel any facility the operation of which involves the manufacture, use, transportation, storage or disposal of any hazardous or toxic materials or substances, including, without limitation, a gasoline service station, such construction and operation shall in all events be subject to the prior approval of the Maintenance Corporation and in accordance with the terms of this Declaration. Such Owner shall comply in all respects with all laws, ordinances, 17 Lapis Energy Development — CC&R's rules and regulations established by all governmental agencies having jurisdiction, with respect to the construction, operation and maintenance of such facility and any underground storage tanks installed thereon. The Maintenance Corporation reserves the right, in its sole and absolute discretion, to retain, at such Owner's sole expense, an independent professional consultant to conduct such investigation or inspection of such Parcel to ensure compliance with the provisions of this Section. Such Owner hereby grants to the Maintenance Corporation and its agents, employees, consultants and contractors the right to enter upon such Parcel and to perform such tests thereon as are reasonably necessary to conduct such investigation. In the event any such facility or service station ceases to be operated upon such Parcel, the Owner of such Parcel agrees to take any and all action necessary to remove all underground storage tanks from such Parcel and to take any corrective action necessary to eliminate any soils contamination or other environmental hazard resulting therefrom. Such Owner shall submit to the Maintenance Corporation, for its approval, a report or study prepared by a consultant approved by the Maintenance Corporation, certifying that no soil contamination or other hazardous or toxic substance remains on such Parcel. In the event such Owner fails to take any such corrective action following reasonable advance notice from the Maintenance Corporation, the Maintenance Corporation shall have the right to take such action either directly or through the use of such soil engineers or other contractors as the Maintenance Corporation, in its sole discretion, shall select. All amounts expended by the Maintenance Corporation pursuant to this Section shall be reimbursed by such Owner as a Special Assessment within three (3) days following demand by the Maintenance Corporation b) Any Owner described in subsection 8.10 (a) above hereby agrees to indemnify, defend and hold harmless the Maintenance Corporation and each of the other Owners from and against any and all cost, expense, claims or liability (including attorneys' fees) which may be incurred as a result of any claims or demands resulting from the construction or operation of such facility or gasoline service station upon such Owner's Parcel 8.11. Architectural Approval. No improvement shall be commenced, erected, installed or maintained upon any Parcel, nor shall any exterior addition to or change or alteration thereof be made until the architectural renderings and schematic drawings showing the proposed grading, drainage, parking, loading and lighting plans and the nature, kind, shape, height, materials, colors and locations of the proposed Improvements (and in the case of the installation or construction of any Improvements used for the storage of hazardous materials, detailed plans and specifications for all monitoring and spill or leak control systems) shall have been submitted to and approved by the Architectural Committee formed pursuant to Section 8.12 below. The Architectural Committee shall establish architectural and landscape standards for the construction of Improvements within the Property, which standards may be modified or amended from time to time at the Architectural Committee's sole discretion. 18 Lapis Energy Development — CC&R's 8.12 Architectural Committee. The Board shall establish an Architectural Committee consisting of not less than three (3) members (the "Committee Members "). The Committee Members shall be appointed for a one (1) year term. Any new Committee Member appointed to replace a Committee Member who has resigned, died or been removed shall serve for the remainder of such Committee Member's term. Committee Members whose terms have expired may be reappointed. 8.13 Approval Procedure. a) No Owner or agent thereof shall attempt to obtain a building, electrical, plumbing or similar permit or entitlement from the City or any successor agency thereto for any work which requires Architectural Committee approval under the terms of this Declaration, unless and until the Architectural Committee has given its prior written approval for such work or waived such approval right. b) Prior to the commencement of construction of any Improvements upon a Parcel, the applicable Owner shall submit to the Architectural Committee preliminary plans or schematic drawings in such form and containing such information as the Architectural Committee may reasonably require. Such plans and drawings shall include, but not be limited to, a site development plan showing the nature, kind, shape, height, materials, color, design and location of the proposed Improvements or exterior additions thereto, including, without limitation, existing and proposed driveways, parking areas, walkways, landscaped areas, storage areas, refuse areas, and building areas, a drainage and grading plan, a signage plan, a landscaping plan, a lighting plan and architectural elevations. The Architectural Committee shall approve or disapprove such plans and drawings within thirty (30) days following the receipt thereof. Final construction plans and specifications based upon previously approved preliminary plans and schematic drawings shall likewise be subject to the approval of the Architectural Committee within thirty (30) days following receipt. The failure of the Architectural Committee to respond within such thirty (30) day period will be deemed the disapproval thereof. Such thirty (30) day period will be extended to allow for the review of such additional or supplemental drawings or materials that the Architectural Committee may reasonably request. In the event the Architectural Committee disapproves any submitted plans and specifications, such disapproval must be accompanied by a reasonably detailed statement itemizing the reasons for such disapproval. Any resulting disputes shall be submitted to binding arbitration in Riverside County in accordance with rules established by the American Arbitration Association. 8.14 Nonliabilit,, forApproval of Plans. The Architectural Committee shall not review plans and specifications or construction drawings for engineering design, compliance with zoning and building ordinances and other applicable statutes, ordinances or governmental rules or regulations. Neither Declarant, the Architectural Committee nor the Board shall be liable for damages or otherwise by reason of any mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval of any 19 Lapis Energy Development — CC&R's submitted plans or drawings. In addition, each Owner hereby agrees to indemnify and hold harmless the Architectural Committee and the Committee Members from and against any and all costs and expenses incurred in connection with or as a result of an actions brought or claims asserted against them on account of such approval or disapproval, including attorneys' fees. 20 Lapis Energy Development — CC&R's ARTICLE IX REPAIR AND MAINTENANCE 9.1 Repair and Maintenance by the Maintenance Corporation. Without limiting the generality of Section 3. 1, the Maintenance Corporation, acting through the Board and its officers, shall have the duty, to be accomplished in such manners and at such times as the Board shall prescribe, to: (a) manage, operate, control, maintain, repair, restore, replace and make necessary improvements to the Driveway System; and (b) maintain business park entry signs and monuments located within the Property and /or otherwise as shown on Exhibit B. The costs of any such maintenance and repair pursuant to this Section shall be a Common Expense. 9.2 Repair and Maintenance by Owners. Each Owner shall: a) except for the Driveway System to be maintained by the Maintenance Corporation as hereinabove provided, maintain its Parcel and any Improvements thereon in accordance with Maintenance Corporation Rules and otherwise in a first -class condition and state of repair, in compliance with all laws, rules, regulations, orders and ordinances of any governmental agency having jurisdiction over the Property, and in compliance with this Declaration; and b) in the event the Maintenance Corporation shall determine that any Improvements required to be maintained by the Maintenance Corporation have been damaged by a particular Owner, such Owner shall be responsible for repairing such damage in a timely manner and in accordance with such rules as the Maintenance Corporation shall from time to time adopt. 9.3 Noncompliance by Owner. In the event that an Owner fa to accomplish any installation, maintenance or repair required by this Article, the oard shall give notice to such Owner describing the deficiency, and setting a date for a hearing before the Board or a committee selected by the Board for such purpose. The procedure for such notice and hearing and for the correction of the violation is described in the Bylaws 9.4 Maintenance of Public Utilities. Nothing contained herein shall obligate the Maintenance Corporation to maintain, replace or restore the underground facilities or public utilities which are located within easements in the Property owned by such public utilities. 21 Lapis Energy Development — CC&R's ARTICLE X INDEMNITY, INSURANCE 10.1 Indemnity. Each Owner shall defend, indemnify and save the Maintenance Corporation and the other Owners harmless from all liability whatsoever on account of any damage, injury, lien, claim or demands related to the use of that Owner's Parcel, or any repairs, alterations or Improvements thereto, or to the use by such Owner of any other Owner's Parcel, or to the breach by such Owner of its duties and obligations under this Declaration; provided, however, no Owner shall be liable for damage or injury ultimately determined to be caused by the negligence of Declarant or any other Owner or its agents, representatives or employees. This obligation to indemnify shall include reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred. 10.2 Maintenance Corporation's Insurance. The Maintenance Corporation shall obtain and maintain in effect bonds and policies of insurance in such amounts, covering such risks and from such companies as it shall determine is appropriate from time to time. Any insurance obtained by the Maintenance Corporation shall be maintained by the Maintenance Corporation for the benefit of the Maintenance Corporation, Declarant, and Declarant's Mortgagee, as their interests may appear. 22 Lapis Energy Development — CC&R's ARTICLE XI TAXES; MECHANIC'S LIENS 11.1 Taxes and Assessments. Notwithstanding that a portion of any Parcel may be maintained by the Maintenance Corporation pursuant to this Declaration, each Owner shall pay or cause to be paid prior to delinquency, all taxes and assessments (collectively, "Taxes ") applicable to its Parcel, the Improvements located thereon and any personal property owned or leased by such Owner within the Property, provided that if the Taxes or any part thereof may be paid in installments, the Owner may pay each such installment as and when the same becomes due and payable, and, in any event, prior to the delinquency thereof. Any Owner may contest at its sole cost and expense any such Taxes with respect to its Parcel in any manner such Owner elects, so long as such Owner gives prior written notice thereof to the Maintenance Corporation, such contest is maintained with reasonable diligence and in good faith, at the time such contest is concluded, the contesting Owner promptly pays all such Taxes determined to be owing, together with all interest, penalties and costs thereon, and such contest is properly brought so as to stay any foreclosure against the applicable Parcel. 11.2 Mechanic's Liens. In the event any mechanic's or other lien is filed against the Parcel of any Owner as a result of services performed or materials furnished for the use of such Owner, the Owner causing such lien to be so filed agrees to cause such lien to be discharged of record (by bonding or otherwise) prior to the entry of final judgment for the foreclosure of such lien and further agrees to indemnify, defend and hold harmless the Maintenance Corporation, the other Owners and their Parcels against any liability, loss, damage, costs or expenses (including reasonable attorneys' fees and costs of suit) on account of such claim of lien. The Owner causing the lien to be filed agrees to promptly cause such lien to be released and discharged of record, either by paying the indebtedness which gave rise to such lien or by posting a bond or other security as shall be required by law to obtain such release and discharge. Nothing herein shall prevent the Owner causing such lien to be filed from contesting the validity thereof in any manner such Owner shall choose, so long as such contest is pursued with reasonable diligence. In the event such contest is determined adversely, such Owner shall promptly pay in full the required amount, together with any interest, Penalties, costs or other charges necessary to release such lien. 23 Lapis Energy Development — CC&R's ARTICLE X11 MORTGAGEE PROTECTION 12.1 Priority of Mortgage Lien. No breach of any of the covenants, conditions or restrictions, nor the enforcement of any of the lien provisions contained in this Declaration shall affect, impair, defeat or render invalid the lien or charge of any Mortgage made in good faith and for value encumbering any Parcel, but all of said covenants, conditions and restrictions shall be binding upon and effective against any Owner whose title is derived through foreclosure or trustee's sale, deed in lieu of foreclosure, or otherwise, with respect to a Parcel. 12.2 Curing Defaults. A Mortgagee or the immediate transferee of such mortgagee, who acquires title by judicial foreclosure deed in lieu of foreclosure or trustee's sale shall have the rights set forth in Section 6.8 and shall not be obligated to cure any breach of any provision of this Declaration which is noncurable or of a type which is not feasible to cure. The determination of the Maintenance Corporation made in good faith as to whether a breach is noncurable or not feasible to cure shall be final and binding on all Mortgagees. 24 Lapis Energy Development — CC&R's ARTICLE XIII AMENDMENT PROVISIONS 13.1 Amendments. Subject to the other provisions of this Declaration, this Declaration may be amended as follows: a) Until such time as there are Owners other than Declarant, amendments or modifications shall be effective when executed by Declarant, approved by the City and recorded in the Official Records. Thereafter, any amendments shall require the vote or written approval of Declarant and not less than fifty percent (50 %) of the remaining Owners and the approval of the City. b) An amendment or modification that requires the vote and written assent of the Owners as hereinabove provided shall be effective when executed by any person or persons authorized by Declarant, who shall certify that the amendment or modification has been approved as hereinabove provided and when recorded in the Official Records. The notarized signatures of the Owners shall not be required to effectuate an amendment of this Declaration. C) Any action to terminate, extend, modify or amend this Declaration shall be subject to the prior written approval of the City or any successor agency thereto. If the proposed termination, extension, modification or amendment is submitted to the City Planning Department, such proposed termination, extension, modification or amendment, if not acted upon by the City Planning Department shall be deemed approved thirty (30) days following its filing with the City. If the City notifies Declarant in writing within such thirty (30) day period that the proposed action is disapproved, setting forth in reasonable detail the reason(s) for such disapproval, then such proposed termination, extension, modification or amendment shall have no force or effect. 25 Lapis Energy Development — CC &R's ARTICLE XIV GENERAL PROVISIONS 14.1 Enforcement. a) Declarant (as long as Declarant owns any portion of the Property), or any Owner shall have a right of action against any Owner, and any Owner shall have a right of action against Declarant to enforce by proceedings at law or in equity, all restrictions, conditions, covenants and reservations now or hereafter imposed by the provisions of this Declaration or any amendment hereto, except that Owners shall not have any right of enforcement with respect to Assessment liens. With respect to the Maintenance Corporation Rules, the Maintenance Corporation shall have the exclusive right to the enforcement thereof. b) Any controversy, dispute or claim whatsoever between any Owners arising out of, in connection with, or in relation to the interpretation, performance or breach of any of the provisions of this Declaration, including, without limitation, the validity, scope and enforceability of this general reference provision, shall be determined, at the request of either party, by a general reference conducted by a judge pro -tem appointed pursuant to the provisions of California Code of Civil Procedure Section 638(1 ) et. seq., who shall be a retired judge of the Superior Court of the State of California. It is intended that this general reference provision be specifically enforceable in accordance with said Section 638(1). If the parties cannot agree upon a referee, one shall be appointed by the Presiding Judge of the Riverside County Superior Court from among such Court's list of retired judges of such Superior Court. C) It is expressly agreed and acknowledged by Declarant and by each Owner thereafter that the Maintenance Corporation and not the City is responsible for enforcing the provisions of this Declaration and the Maintenance Corporation Management Documents. d) If the Property, or any portion thereof, is not maintained in the condition required by this Declaration, then the City, following prior demand therefor and reasonable opportunity to cure, shall have the right, but not the obligation, to enter the Property and perform, at the sole expense of the applicable Owner, any maintenance required thereon by this Declaration or applicable City Ordinance. The applicable Parcel shall be subject to a lien in favor of the City to secure the obligation of the applicable Owner to reimburse the City for the costs incurred. All parkways, open areas, on -site slopes and landscaping shall be permanently maintained by the Owner of the Parcel containing the applicable Improvements (unless such obligation is otherwise reserved by the Maintenance Association hereunder or pursuant to the Maintenance Corporation Management Documents), or by other means acceptable to the City. Satisfactory proof of such maintenance shall be submitted to the City Planning and Public Works Departments prior to 26 Lapis Energy Development — CC&R's the issuance of building permits for the applicable Parcel. If required, reciprocal access easements and maintenance agreements ensuring access to all Parcels and joint maintenance of all roads, driveways or parking areas shall be provided by supplemental declaration or deed prior to the issuance of building permits for the applicable Parcel 14.2 No Waiver. The failure by Declarant or the Maintenance Corporation to enforce any covenant, condition, restriction or reservation herein contained, in any certain instance or on any particular occasion shall not be deemed a waiver of such right following any such future breach of the same or any other covenant, condition, restriction or reservation. 14.3 Cumulative Remedies. All rights, options and remedies of the Maintenance Corporation or the Owners under this Declaration are cumulative, and no one of them shall be exclusive of any other, and the Maintenance Corporation and the Owners shall have the right to pursue any one or all of such rights, options and remedies or any other remedy or relief which may be provided by law, whether or not stated in this Declaration. 14.4 Severability. Invalidation of any one or a portion of these covenants, conditions, restrictions or reservations by judgement or court order shall in no way affect any other Provision of this Declaration. which shall remain in full force and effect. 14.5 Covenants to Run with the Land Term. The covenants, conditions and restrictions contained in this Declaration shall run with and bind the Property and shall inure to the benefit of and be enforceable by Declarant or any person or entity succeeding to Declarant's interest in the Property or any Owner, their respective legal representative, heirs, successors and assigns, for a term of thirty (30) years from the date this Declaration is recorded, after which time said covenants, conditions and restrictions shall be automatically extended for successive periods of ten (10) years, unless an instrument, signed by Declarant or any person or entity succeeding to Declarant's interest in the Property and by not less than fifty percent ( 50 %) of the other Owners has been recorded at least six (6) months prior to the end of any such period, agreeing to terminate this Declaration in whole or in part. 14.6 Construction. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a plan for the development of a business community and for the maintenance of the Property. The Article and Section headings have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction. 14.7 Singular Includes Plural. Whenever the context of this Declaration requires such inclusion, the singular shall include the plural and the masculine shall include the feminine and the neuter genders. 14.8 Nuisance. The occurrence of any act or omission whereby any provision, condition, restriction, covenant, easement, or reservation contained in this Declaration is violated in whole or in part, is hereby declared to be and constitutes a nuisance, and every remedy 27 Lapis Energy Development — CC&R's allowed by law or equity against a private nuisance shall be applicable against such occurrence and may be exercised by the Maintenance Corporation or any Owner. Such remedy shall be deemed cumulative and not exclusive. 14.9 Attorneys' Fees. In the event any action is instituted to enforce any of the provisions contained in this Declaration, the party prevailing in such action shall be entitled to recover from the other party thereto reasonable attorneys' fees (including fees and charges attributable to services performed by legal assistants or other non - attorney personnel working under the supervision of an attorney) and costs of such suit as determined by the court or by arbitration as part of the judgement. 14.10 Notices. Any notice to be given pursuant to the provisions of this Declaration shall be in writing and shall be deemed to have been properly delivered if personally delivered or if deposited in the United States mail, certified, return receipt requested, to the address set forth below. Any notice so personally delivered shall be deemed given upon delivery and any notice so deposited in the mail shall be deemed given forty -eight (48) hours after such deposit if deposited in the County of Riverside and ninety six (96) hours after such deposit if deposited outside of the County. To Declarant or the Maintenance Corporation: Lapis Energy Organization, Inc. 135 Saxony Road, P.O. Box 231310 Encinitas, CA 92023 -1310 To Owners: To the address furnished to Declarant from time to time. If no such address has been furnished, to the street address of such Owner's Parcel. Any party may change its address for the purpose of receiving notices by giving notice as herein provided. The affidavit of an officer or authorized agent of Declarant or the Maintenance Corporation declaring that a notice has been mailed to any Owner or Owners to the address or addresses shown on the records of Declarant or the Maintenance Corporation shall be deemed conclusive proof of such mailing, whether or not such notices are actually received. 14.11 Effect of Declaration. This Declaration is made for the purposes set forth in the Recitals to this Declaration and Declarant makes no warranties or representations, express or implied, as to the binding effect or enforceability of all or any portion of this Declaration, or as to the compliance of any of these provisions with laws, ordinances and regulations applicable thereto. 14.12 Nonliability of Officials. Neither Declarant, the Board nor any member of any committee established by the Maintenance Corporation shall be liable to any Owner for any damage, loss or prejudice suffered or claimed on account of any decision, approval or disapproval, course of action, act, omission, error, negligence or the like made in good 28 Lapis Energy Development — CC&R's faith within which Declarant or the Maintenance Corporation reasonably believed to be within the scope of its duties. 14.13 Construction By Declarant. Nothing in this Declaration shall limit the right of Declarant to alter the Parcels still owned by Declarant, or to construct such additional Improvements as Declarant deems advisable. Such right shall include, without limitation, erecting, constructing and maintaining on the Property such structures and displays as may be reasonably necessary for the conduct of the business of completing the work and disposing of the same by sale, lease or otherwise. Declarant shall repair any damage to and complete any restoration of the Property caused or necessitated by such activities of Declarant within a reasonable time after the occurrence of such damage or need for restoration. This Declaration shall not limit the right of Declarant at any time prior to acquisition of title by a purchase from Declarant to establish on the Property any additional licenses, reservations and rights -of -way to itself, to utility companies, or to others as may from time to time be reasonably necessary to the proper development and disposal of the Property. Declarant reserves the right to alter its construction plans and designs as it deems appropriate. The rights of Declarant under this Declaration may be assigned in whole or in part to any successor or successors by an express assignment incorporated in a recorded instrument, including, without limitation, a deed, lease, option agreement, land sale contract or assignment, as the case may be, transferring such interest to such successor. Declarant shall exercise its rights contained in this provision in such a way as not to unreasonably interfere with the Owners' rights to use and enjoy their Parcels. 14.14 Exempt Property. All properties dedicated to and accepted by or otherwise owned or acquired by a public authority shall be exempt from the provisions of this Declaration. 14.15 Estoppel Certificate. Each Owner separately covenants that upon written request (which shall not be more frequent than three (3) times during any calendar year from time to time by Declarant, it will issue to a prospective Mortgagee of Declarant or to a prospective successor party to Declarant, within ten (10) business days of receipt of any such request, an estoppel certificate stating: a) whether the Owner to whom the request has been directed knows of any default by Declarant or the Maintenance Corporation under this Declaration, and if there are known defaults specifying the nature thereof: b) whether this Declaration has been assigned, modified or amended in any way by such Owner (and if it has, then stating the nature thereof); and C) that to such Owner's knowledge this Declaration is in full force and effect. Such statement shall act as a waiver of any claim by the Owner furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bonafide encumbrancer or purchaser for value without knowledge of facts to the contrary of those contained in the statement. In the 29 Lapis Energy Development — CC &R's event an Owner requested to give an estoppel certificate pursuant to the provisions of this Section shall fail to give such certificate within the above ten (10) business day period, it shall be deemed that, as of the date of the request: (i) such Owner knows of no default by Declarant or the Maintenance Corporation under this Declaration; (ii) this Declaration has not, to such Owner's knowledge, been assigned or modified or amended in any way by such Owner, except as may appear of record; and (iii) this Declaration is, to such Owner's knowledge, in full force and effect. 14.16 Conflicts Between Maintenance Corporation Management Documents. In the event of a conflict between any provisions of any of the Maintenance Corporation Management Documents and the provisions of another Maintenance Corporation Management Document, the provisions of the Controlling Document named below in the first column shall be deemed to supersede the provisions of the Subordinate Document or Documents named below in the second column to the extent of any such conflict. CONTROLLING DOCUMENTS SUBORDINATE DOCUMENTS (a) Articles Declaration. Bylaws and Maintenance Corporation Rules (b) Declaration Bylaws and Maintenance Corporation Rules (c) Bylaws Maintenance Corporation Rules 14.17 Personal Covenant. To the extent the acceptance or conveyance of a Parcel creates a personal covenant between the Owner of such Parcel and Declarant or other Owners, such personal covenant shall terminate and be of no further force or effect from or after the date when a person or entity ceases to be an Owner except to the extent this Declaration may provide otherwise with respect to the payment of money to the Maintenance corporation. 30 Lapis Energy Development — CC&R's IN WITNESS WHEREOF, Declarant executed this instrument the day and year first hereinabove written. Lapis Energy Organization, Inc. A California Corporation Name: Title: Date: The City of La Quinta consents to this Declaration insofar as it complies with the requirements contained and approved on Parcel Map 28422. This Declaration shall not be modified or amended without the prior approval of the City, as set forth in Section 13.1 (c) hereof. Planning Manager City Clerk City Attorney 31 Lapis Energy Development — CC&R's State of California County of On 1997, before me , personally appeared personally known to me /proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Name: State of California County of On , 1997, before me , personally appeared personally known to me /proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Name: State of California County of On 1997, before me personally appeared personally known to me /proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Name: 32 Lapis Energy Development — CC&R's EXHIBIT A LEGAL DESCRIPTION THE WEST HALF OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 7 EAST, SAN BERNARDINO BASE AND MERIDIAN; EXCEPTING THEREFROM THE WESTERLY 30 FEET THEREOF, AS CONVEYED TO THE COUNTY OF RIVERSIDE FOR ROAD PURPOSES BY DEED FILED FOR RECORD APRIL 9, 1952 AS DOCUMENT NO. 15194 OF OFFICIAL RECORD; ALSO EXECTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED MARCH 6, 1968 AS DOCUMENT NO. 20215 OF OFFICIAL RECORDS. 33 Lapis Energy Development — CC&R's EXHIBIT B PARCEL MAP 28422 34 Lapis Energy Development — CC&R's i =J October 9, 1997 Mr. Wallace Nesbit Associate Planner City of La Quinta 78 -495 Calle Tampico i La Quinta, CA 92253 LAPIS Energy Organization OF -GOVE U OCT 0 91997 CITY OF LAQUINTA PLANNING DEPARTMENT RE: Revised CC &R s Dear Mr. Nesbit, Wally, attached please find a copy of the revised CC &R's for your review. I have attempted to include all of your revisions. Thank you for all of your assistance. Please contact me with any questions or comments you might have. Sincerely, e ohnB. 6.Gabbard, PE Executive Vice President enclosure 135 Saxony Road • P.O. Box 231310 • Encinitas, CA 92023 -1310 * Phone 760.942.2762 Fax 760.942.82 1 S RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALIFORNA October 7, 1997 Lapis Energy Development — DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALIFORNA TABLE OF CONTENTS Preamble Recitals ARTICLE I - Definitions Architectural Committee Articles and Bylaws Assessments Board City Common Expenses Declarant Driveway System Improvements Maintenance Corporation Maintenance Corporation Management Documents Maintenance Corporation Rules Member Mortgage" and "Mortgages Official Records Owner Parcel Property ARTICLE II - Rights of Ownership and Easements 2.1 Development Rights and Easements Reserved to Declarant 2.2 Certain Easements for Owners 2.3 Additional Easements for Declarant 2.4 Rights and Duties: Utilities 2.5 Subordination 2.6 No Waiver 2.7 Assessment District Lapis Energy Development — ARTICLE III - DUTIES AND POWERS OF THE MAINTENANCE CORPORATION 3.1 General Duties of the Maintenance Corporation 3.2 General Powers of the Maintenance Corporation 3.3 Power of Attorney 3.4 Maintenance Corporation to Defend Certain Actions ARTICLE IV - MAINTENANCE CORPORATION MEMBERSHIP 4.1 Membership 4.2 Transfer 4.3 Multiple Memberships ARTICLE V - MEMBERSHIP VOTING RIGHTS 5.1 Voting Rights 5.2 Classes of Voting Membership. 5.3 Voting Requirements 5.4 Approval of All Members 5.5 Vesting of Voting Rights ARTICLE VI - ASSESSMENTS 6.1 Agreement to Pay 6.2 Capital Improvement Assessments 6.3 Regular Assessments. 6.4 Special Assessments 6.5 Assessment Allocation 6.6 Date of Commencement of Regular Assessments 6.7 No Offsets 6.8 Subordination of Assessment Liens 6.9 Collection of Proportionate Share of Net Costs 6.10 Maximum Assessments ARTICLE VII - ENFORCEMENT OF ASSESSMENT LIENS 7.1 Delinquency 7.2 Foreclosure Sale 7.3 Curing of Default ARTICLE VIII - USE RESTRICTIONS 8.1 Use 8.2 Signs 8.3 Nuisance 8.4 Animals Lapis Energy Development — 8.5 Oil and Mineral Rights 8.6 Unsightly Items 8.7 Antennae and other Roof Structures 8.8 Drainage 8.9 Leases 8.10 Hazardous Waste 8.11 Architectural Approval 8.12 Architectural Committee 8.13 Approval Procedure. 8.14 Nonliability for Approval of Plans ARTICLE IX - REPAIR AND MAINTENANCE 9.1 Repair and Maintenance by the Maintenance Corporation 9.2 Repair and Maintenance by Owners 9.3 Noncompliance by Owner 9.4 Maintenance of Public Utilities ARTICLE X - INDEMNITY; INSURANCE 10.1 Indemnity 10.2 Maintenance Corporation's Insurance ARTICLE XI - TAXES; MECHANIC'S LIENS 11.1 Taxes and Assessments 11.2 Mechanic's Liens ARTICLE XI -MORTGAGEE PROTECTION 12.1 Priority of Mortgage Lien 12.2 Curing Defaults ARTICLE XIII - AMENDMENT PROVISIONS 13.1 Amendments ARTICLE XIV - GENERAL PROVISIONS 14.1 Enforcement. 14.2 No Waiver 14.3 Cumulative Remedies 14.4 Severability 14.5 Covenants to Run with the Land Term 14.6 Construction 14.7 Singular Includes Plural Lapis Energy Development — 14.8 Nuisance 14.9 Attorneys' Fees 14.10 Notices 14.11 Effect of Declaration 14.12 Nonliability of Officials 14.13 Construction By Declarant 14.14 Exempt Property 14.15 Estoppel Certificate 14.16 Conflicts Between Maintenance Corporation Management Documents 14.17 Personal Covenant Signatures Exhibit A - Exhibit B - Lapis Energy Development — DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND EASEMENT AGREEMENT LAPIS ENERGY DEVELOPMENT LA QUINTA, CALIFORNA This declaration of Covenants, Conditions and Restrictions and Reciprocal Easement Agreement ( "Declaration ") is made this day of , by and Lapis Energy Organization, Inc. a California Corporation ( "Declarant "). PrPnmhlP The intent and purpose of this document is to provide for the orderly development and maintenance of Parcel Map No. 28422, a commercial subdivision. The administration and enforcement of these covenants will be the responsibility of the Declarant and its successors and assigns. Architectural control will be the responsibility of the Architectural and Planning Board appointed by the Declarant, which will control construction of the buildings and improvements proposed within the development for the mutual benefit of all lot owners. Recitals WHEREAS, Declarant owns certain real property located in La Quinta, County of Riverside, State of California, which real property (the "Property ") is commonly known as Lapis Energy Development and is more fully described in Exhibit A attached hereto and made a part hereof, and depicted on the Parcel Map attached hereto as Exhibit B and made a part hereof; and, WHEREAS, Declarant intends to develop the Property for automotive retail, mini storage, gas station and other related retail and commercial uses and desires to establish certain covenants, conditions and restrictions upon the Property which will constitute a general scheme for the construction, maintenance and management of the Property and the Improvements (as hereinafter defined) thereon, and for use, occupancy and enjoyment thereof, all for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property. NOW THEREFORE, Declarant hereby covenants, agrees and declares that all of its interest, as the same may from time to time appear in the Property, shall be held and conveyed subject to the following covenants, conditions, restrictions and easements, which are hereby declared to be for the benefit of Declarant and its successors and assigns. These covenants, conditions, restrictions and easements shall run with all interests in the Property, shall be binding upon all parties having or acquiring any right or title in the Property or any part thereof, shall inure to the benefit of Declarant and its successors and assigns and are imposed upon all of the interests in the Property as servitude's in favor of each and every of said interests as the dominant estate or estates. Lapis Energy Development — CC &R's 1 ARTICLE I Definitions 1.1 Unless the context clearly indicates otherwise, the following terms used in this Declaration are defined as follows: "Architectural Committee" shall mean the Architectural Committee created pursuant to Section 8.13 hereof. "Articles and Bylaws" shall mean, respectively, the Articles of Incorporation and Bylaws of the Maintenance Corporation, as the same may from time to time be duly amended. "Assessments" shall mean Capital Improvement Assessments, Regular Assessments and Special Assessments, as such terms are defined in Article VI. "Board" shall mean the Board of Directors of the Maintenance Corporation. "City„ shall mean the City of La Quinta, State of California. "Common Expenses" shall mean the actual cost or amounts paid by the Maintenance Corporation and all Members for: a) maintenance, management, operation, construction, installation, repair and replacement of the Property, the Driveway System and all other areas which are maintained by the Maintenance Corporation pursuant to the provisions of this Declaration; b) unpaid Assessments; C) management and administration of the Maintenance Corporation, including, without limitation, compensation and fees paid by the Maintenance Corporation to managers, accountants, attorneys and employees; d) to the extent not metered or billed to individual Owners, utilities trash pickup and disposal, gardening, landscaping, trimming of trees and other services which generally benefit the Property; e) insurance and bonds maintained by the Maintenance Corporation; f) property taxes and assessments paid by the Maintenance Corporation; g) discharge of any lien or encumbrance levied against the Property; h) other expenses incurred by the Maintenance Corporation or any other similar entity established by Declarant; Lapis Energy Development — CC &R's 2 i) reasonable reserves as deemed appropriate by the Maintenance Corporation; and j) other expenses incurred by the Maintenance Corporation for any reason whatsoever in connection with the Property, the costs of any other item or items designated by the Maintenance Corporation, or in the discharge of any duties or powers of the Maintenance Corporation, including without limitation, the duties of the Maintenance Corporation set forth in Article VII hereof. Common Expenses shall be allocated equally among the Parcels and borne by each Owner of a Parcel by means of a fraction, the numerator of which is the area in square feet of a gross Parcel owned by such Owner and the denominator of which is the total gross area in square feet the Property. "Declarant" shall mean: (a) Lapis Energy Organization, Inc. a California Corporation, its successors and assigns, by merger, consolidation or by purchase of all substantially all of its assets; and (b) any person or entity, his or its successors and assigns, who purchases or ground leases from the Declarant named in subsection (a) of this Section one or more Parcels for the purpose of selling or leasing Parcels to the ultimate users, if such purchaser or lessee agrees in writing with Declarant to accept the assignment of Declarant's rights and duties as to the portion of the Property purchased or leased and such writing is recorded against such portion purchased or leased. "Driveway System" shall mean the interior roadways within the Property and designated as "Easements for Reciprocal Access, Utilities, Drainage Purposes and Emergency Vehicle Access" on Exhibit B. "Improvements" shall mean all: a) structures and appurtenances thereto of every type and kind constructed upon the Property, including, without limitation, buildings, outbuildings, walkways, sprinkler and sewer pipes or lines, garages, carports, roads, driveways, parking areas, fences, screening walls, retaining walls, awnings, patio and balcony covers, stairs, decks, landscaping, hedges, slopes, windbreaks, the exterior surfaces of any visible structure, trees and shrubs, poles, signs, solar or windpowered energy systems or equipment, and water softener or heater or air conditioning and heating fixtures and equipment. b) demolition or destruction by voluntary action of any structure or appurtenance thereto; C) grading, excavation, filling or similar disturbance to the surface of the land, including, without limitation, change of grade, change of ground level, change of drainage pattern or change of stream bed; d) landscaping, planting, clearing or removing of trees, shrubs, grass or plants; and Lapis Energy Development — CC &R's 3 e) any changes or alteration of any previously approved Improvement, including, without limitation, any change of exterior appearance, color or texture. "Maintenance Corporation" shall mean Lapis Energy Development Maintenance Corporation, a nonprofit mutual benefit corporation, incorporated under the laws of the State of California, its successors and assigns. "Maintenance Corporation Management Documents" shall mean the Articles, Bylaws, Maintenance Corporation Rules and any amendments to any of the foregoing. "Maintenance Corporation Rules" shall mean rules adopted by the Maintenance Corporation pursuant to the Bylaws. "Member" shall mean every person or entity that qualifies for membership in the Maintenance Corporation pursuant to Article IV hereof, including Declarant so long as Declarant qualifies for membership pursuant to said Article. "Mortgage" and "Mortgages" shall mean, respectively, any duly recorded first priority deed of trust or mortgage encumbering a Parcel and the holder of the mortgagee's or beneficiary's interest under any such Mortgage. "Official Records" shall mean the Official Records of the County of Riverside, State of California. "Owner" shall mean one or more persons or entities who are alone or collectively the record owner of fee simple title to a Parcel, including Declarant (to the extent Declarant is the owner of one or more Parcels) and excluding those having any such interest merely as security for the performance of any obligation. "Parcel" shall mean a lot shown on a final map or parcel shown on a subdivision or parcel map filed for record in the County of Riverside, as such lot or parcel may be adjusted by lot line adjustments recorded from time to time, to the extent such lots or parcels are part of the Property, and any Improvements thereon, "Parcel" shall specifically exclude any streets or property dedicated to and accepted by the City. "Property" shall mean that certain real property more fully described in Exhibit A attached hereto and made a part hereof. Lapis Energy Development — CC &R's 4 ARTICLE II Rights of Ownership and Easements 2.1 Development Rights and Easements Reserved to Declarant a) Improvements. There are hereby reserved to Declarant and the City of La Quinta, together with the right to grant and transfer the same to the Maintenance Corporation, the City and/or any public utility or assessment district, or otherwise, easements over the Property for ingress and egress and for the purpose of constructing, erecting, operating, and maintaining thereon, therein and thereunder roads, streets, walks, driveways parkways for the installation and maintenance of electric, telephone, cable, television, telecommunications lines, water, gas, sanitary sewer lines, drainage facilities and landscaping, including without limitation, the Driveway System and any such facilities shown on any recorded final subdivision or parcel map covering the Property; provided, however, any such easements shall, to the extent practicable, be limited to the use and enjoyment by the Owners of their Parcels. Declarant and/or the Maintenance Corporation shall repair any damage to an complete any restoration to the Property caused or necessitated by such installation and maintenance within the reasonable time after the occurrence of such damage or need for restoration. b) Construction Sales. There are hereby reserved to Declarant over the Property, together with the right to grant and transfer the same to Declarant's sales agents and representatives and prospective purchasers of Parcels, easements for construction, display, maintenance, sales and exhibit purposes in connection with the erection and sale or lease of Parcels within the Property; provided, however, that such use shall not be for a period beyond the sale by Declarant of all Parcels within the Property and provided further that no such use by Declarant shall otherwise unreasonably restrict the Owners in the reasonable use and enjoyment of their Parcels. Declarant shall repair any damage to and complete any restoration of the Property caused or necessitated by such construction, display, maintenance, sales and exhibit purposes within a reasonable time after the occurrence of such damage or need for restoration. C) Emergency Vehicle Access. There are hereby reserved to Declarant, together with the right to grant and transfer the same to the City and/or public or private entities, a non - exclusive easement for public emergency vehicles and personnel acting in a public emergency over all portions of the Property designed for vehicular or pedestrian traffic. 2.2 Certain Easements for Owners. Declarant hereby reserves to itself, its successors and assigns, and agrees that it will grant to all Owners together with the right of such Owners to grant and transfer the same, nonexclusive appurtenant easements for ingress, egress, use and enjoyment (including, without limitation, the unrestricted right of ingress and egress to such Owner's Parcel). These rights shall be subject to control and management Lapis Energy Development — CC &R's 5 by Declarant as more particularly provided in Section 3.2, and to all of the easements, covenants, conditions, restrictions and other provisions contained in this Declaration. 2.3 Additional Easements for Declarant. There are hereby reserved to Declarant over the Property, easements for ingress, egress and such other purposes as are necessary or desirable to permit Declarant to discharge its obligations and powers as described in this Declaration. 2.4 Rights and Duties: Utilities. Wherever sanitary sewer connections, water connections, air conditioning connections or ducts, electricity, gas, telephone and cable television lines or drainage facilities are installed within the Property, any Owner as the owner of any Parcel served by said connections, lines or facilities shall have, and there is hereby reserved to Declarant, with the power to further grant and transfer the same to each such Owner, an easement to the full extent necessary for the full use and enjoyment of such portion of such connections which service such Owner's Parcel, and to enter, or have utility companies enter, upon any portion of the Property, including, without limitation, upon the Parcels in or upon which said connections, lines or facilities, or any portion thereof lie, to repair, replace and generally maintain said connections as and when the same may be necessary as set forth below, provided that any damage caused by such entry shall be repaired by such Owner or utility company as promptly as possible after completion of work thereon. Entry for emergency purposes may be immediate and entry for other than emergency repairs shall be made only after notice has been given to the Owner of the Parcel being entered and shall be made with as little inconvenience as possible to such Owner and any damage caused thereby shall be repaired by the entering party. 2.5 Subordination. Declarant hereby agrees, and any grantee of any easement by acceptance of such conveyance agrees, that the easements conveyed as described in this Article shall be subordinate to any easement which has been or will be conveyed over the property encumbered by such easement in favor of any public authority or utility company, it being further agreed that any easement in favor of a public authority shall be superior to any easement in favor of a utility company. Any such grantee agrees to execute any documents acknowledging the subordination of such easement that may be required by Declarant. 2.6 No Waiver. No Owner may exempt itself from personal liability for Assessments duly levied by the Maintenance Corporation or release the Parcel owned by it from the liens, charges and other provisions of this Declaration by waiver of the use and enjoyment of the Property, abandonment of its Parcel or otherwise. 2.7 Assessment District. Declarant reserves the right to establish in cooperation with the City a special tax assessment district for the performance of all or a portion of the maintenance and other functions within the responsibility of the Maintenance Corporation,' and to convey, lease or otherwise transfer all or any portion of the Property to said district. Lapis Energy Development — CC &R's 6 ARTICLE III DUTIES AND POWERS OF THE MAINTENANCE CORPORATION 3.1 General Duties of the Maintenance Corporation. The Maintenance Corporation, through the Board, shall have the duty and obligation to: a) maintain and otherwise manage all easements, real and personal property and all facilities, improvements and landscaping thereon, including the Driveway System, which the Maintenance Corporation is obligated to repair or maintain pursuant to this Declaration b) within ten (10) days of the mailing or delivery of a written request by an Owner, provide such Owner with (i) a copy of the Maintenance Corporation Management Documents, (ii) a copy of the most recent financial statement of the Maintenance Corporation, and (iii) a true statement in writing as to the amount of any unpaid Assessments, and information relating to late charges, interest and costs of collection, which, as of the date of the statement, are or may be made a lien upon such Owner's Parcel. A reasonable fee may be imposed for providing such statement, but in no event shall the fee exceed the reasonable cost to prepare and reproduce the requested documents; c) prepare and distribute to the Owners financial statements setting forth the Regular Assessment and any Capital Improvement Assessment for the following year and all other matters required by Section 1365 of the California Civil Code` or any successor statute; and d) appoint the members of the Architectural Committee pursuant to Section 3.13 below. 3.2 General Powers of the Maintenance Corporation. Subject to any limitations contained in the Maintenance Corporation Management Documents, the Maintenance Corporation, through the Board, shall have the power, but not the obligation to: a) establish reasonable rules and regulations pertaining to the use of the Property; b) grant permits, licenses and easements on, over and under the Property to public utilities or governmental entities or agencies for utilities, roads and other purposes reasonably necessary or useful for the proper maintenance or operation of the Property; provided that such permits, licenses and easements shall not unreasonably interfere with the right of any Owner to the use and enjoyment of its Parcel; and C) perform any other actions which a nonprofit mutual benefit corporation has the power to perform as provided in Section 7140 of the California Corporations Lapis Energy Development — CC &R's 7 Code and Section 374 of the California Code of Civil Procedure or any successor statute of either of the foregoing. 3.3 Power of Attorney. In addition to any other rights, duties, obligations and powers granted to the Maintenance Corporation herein, and not in limitation of any such rights, duties, obligations and powers, each Owner appoints the Maintenance Corporation as its attorney -in -fact for the purpose of administering any losses or proceeds from condemnation, damage or destruction of all or any part of the Property to the extent such functions are the obligations of the Maintenance Corporation pursuant to the Maintenance Corporation Management Documents. All such proceeds shall be retained in the general funds of the Maintenance Corporation. 3.4 Maintenance Corporation to Defend Certain Actions. In the event that a lawsuit is filed against all or substantially all of the Owners as Members or a lien is levied against all or substantially all of the Property, the Maintenance Corporation may defend such'lawsuit or cause such lien to be removed. The costs of such litigation or removal shall be a Special Assessment against all Owners joined as defendants in such lawsuit or whose property is covered by the lien and shall be allocated in the same manner as Regular Assessments are allocated to each Owner. Nothing contained herein shall in any way limit the rights of any Owner to retain counsel of its choice to represent it in such lawsuit at its own expense, or to seek contribution, reimbursement or damages from any other Owner. In the event that an Owner so chooses to retain its own counsel, it shall not he relieved of liability for the Special Assessment provided for in this Section. Lapis Energy Development — CC &R's 8 ARTICLE IV MAINTENANCE CORPORATION MEMBERSHIP 4.1 Membership. Every Owner, including Declarant as long as Declarant continues to be an Owner, by virtue of holding title to a Parcel shall be a Member. The terms and provisions set forth in this Declaration, which are binding upon all Owners, are not exclusive, as Owners shall, in addition, be subject to the terms and provisions of the Articles, Bylaws and Maintenance Corporation Rules, subject to Section 14.17. Membership of Owners shall be appurtenant to and may not be separated from the interest of such Owner in any Parcel. Ownership of a Parcel shall be the sole qualification for membership; provided, however, a Member's rights or privileges may be regulated or suspended for failure to comply with the Maintenance Corporation Management Documents after notice and hearing as provided in the Bylaws. 4.2 Transfer. Except for a pledge to a Mortgagee pursuant to a Mortgage and subject to Article X11, the membership held by any Owner shall not be transferred, pledged or alienated in any way, except that such membership shall automatically be transferred to the transferee of the interest of an Owner required for membership. Any attempt to make a prohibited transfer is void and will not be reflected upon the books and records of the Maintenance Corporation. The Maintenance Corporation shall have the right to record a permitted transfer upon the books of the Maintenance Corporation without any further action or consent by the transferring Owner. A Member who has sold his Parcel to a contract purchaser under a land sale contract or agreement to purchase or has leased his Parcel shall be entitled to delegate to such purchaser or lessee his membership rights in the Maintenance Corporation. Such delegation shall be in writing and shall be delivered to the Board before such purchaser or lessee may vote. However, the contract seller or lessor shall remain liable for all charges and Assessments attributable to his Parcel as long as such seller or lessor continues to be an Owner 4.3 Multiple Memberships. A Member may own more than one membership in the Maintenance Corporation by complying with the qualifications of membership as to more than one (1 ) Parcel as set forth in this Article. Lapis Energy Development — CC &R's 9 ARTICLE V MEMBERSHIP VOTING RIGHTS 5.1 Voting Rights. All voting rights shall be subject to the restrictions and limitations provided in the Maintenance Corporation Management Documents. 5.2 Classes of Voting Membership. a) The Maintenance Corporation shall have two (2) classes of voting membership: Class A: Class A Members shall be all Owners other than Declarant. Class B: The Class B Member shall be Declarant. The Class B membership shall cease for such periods during which Declarant is no longer an Owner. b) Each Class A Member shall be entitled to one (1 ) vote per each Parcel owned by such Member within the Property and the Class B Member shall be entitled to two (2) votes for each Parcel owned. C) Subject to the provisions of subparagraph (b) above, when more than one person owns a portion of the interest in a Parcel required for membership, each such person shall be a Class A Member and the votes for such Parcel shall be exercised as they among themselves determine, but in no event shall more than one (1 ) vote be cast with respect to any Parcel. The Maintenance Corporation may, but shall not be obliged to, refuse to recognize the vote or written assent of any such co- Owner, except the vote or written assent of the co -Owner designated in a writing executed by all of such co- Owners and delivered to the Maintenance Corporation. 5.3 Voting Requirements. For such periods as there is a Class B membership and unless otherwise specifically provided in this Declaration, any provision of this Declaration which requires the vote or written assent of a prescribed percentage of the total voting power of the Maintenance Corporation shall require the vote or written assent of the prescribed percentage of (a) the total voting power of all Members of the Maintenance Corporation; and (b) the total voting power of the Class B Member. 5.4 Approval of All Members. Unless elsewhere otherwise specifically provided in this Declaration and subject to Section 5.3 above, any provision of this Declaration which requires the vote or written assent of a prescribed percentage of the total voting power of the Maintenance Corporation shall be deemed satisfied by the following: a) The vote in person or by proxy of the specified percentage of all of the votes which are entitled to be cast by the entire membership of the Maintenance Corporation and by any class or classes of membership entitled to vote on such matter. Said vote shall be at a meeting duly called and noticed pursuant to the Lapis Energy Development — CC &R's 10 provisions of the Bylaws dealing with annual or special meetings of the Members: or b) Written consents signed by the specified percentage of all the votes which are entitled to be cast by the entire membership of the Maintenance Corporation and by any class or classes of membership entitled to vote on such matter. Said vote by written consent shall be solicited pursuant to the procedures provided in the Bylaws. 5.5 Vesting of Voting Rights. An Owner's right to vote shall vest immediately upon the date Regular Assessments commence against such Owner's Parcel pursuant to Section 6.6. Lapis Energy Development — CC &R's 11 ARTICLE VI ASSESSMENTS 6.1 Agreement to Pa. Each Owner is deemed to covenant and agree to pay Assessments to the Maintenance Corporation, such Assessments to be fixed, established and collected from time to time as provided in this Declaration. All amounts collected for any specific Assessment provided for herein shall only be used for the purposes for which such Assessment was collected 6.2 Capital Improvement Assessments. "Capital Improvement Assessment" shall mean a charge against each Owner and its Parcel levied by the Maintenance Corporation in any calendar year applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any installation, construction or replacement (other than due to destruction) of a described capital improvement upon the Property, including the necessary fixtures and personal property related thereto. The contributing Owners shall deem all amounts collected as Capital Improvement Assessments a contribution to the capital account of the Maintenance Corporation. 6.3 Regular Assessments. a) "Regular Assessment" shall mean the charge levied against each Owner and its Parcel representing such Owner's proportionate share of the estimated Common Expenses for the forthcoming fiscal year. The Regular Assessment shall be due and payable as established by Declarant in a written notice sent to the Owners, but not more frequently than in monthly installments. b) In the event the Maintenance Corporation determines that the amount budgeted for the current year is, or will become, inadequate to meet all Common Expenses for any reason, it shall immediately determine the approximate amount of such inadequacy, issue a supplemental estimate of the Common Expenses and determine the revised amount of the Regular Assessment and installments thereof, if applicable, against each Owner, and the date or dates when due. 6.4 Special Assessments. "Special Assessment" shall mean a charge against a particular Owner and its Parcel, directly attributable to such Owner for charges and costs that may include, without limitation, the following: a) cost of any action or undertaking on behalf of the Maintenance Corporation relating to the Property which is not specifically covered under any other Assessments; b) charges against any Owner consisting of reasonable late payment penalties and to reimburse the Maintenance Corporation for costs incurred in bringing such Owner and its Parcel into compliance with the provisions of this Declaration; and Lapis Energy Development — CC &R's 12 c) in the event the Maintenance Corporation undertakes to provide materials or services which benefit individual Parcels and which can be accepted or rejected by individual Owners at their option, such Owners in accepting such materials or services agree to reimburse the costs thereof as a Special Assessment. 6.5 Assessment Allocation. Capital Improvement Assessments and Regular Assessments levied against each Parcel and the Owner thereof shall be calculated in accordance with the fraction set forth in the definition of Common Expenses above. All Assessments may be collected at intervals selected by the Declarant. 6.6 Date of Commencement of Regular Assessments. Regular Assessments shall commence with respect to a Parcel upon the date such Parcel is conveyed to an Owner. 6.7 No Offsets. All Assessments shall be payable in the amount and at the time specified by the Assessment and no offsets against such amount shall be permitted for any reason. 6.8 Subordination of Assessment Liens. The foreclosure of any lien provided for in Article VII for the payment of Assessments, late charges, costs and interest levied by Declarant in connection with unpaid Assessments shall not operate to affect or impair the lien of a Mortgage, or the sale under a power of sale included in such Mortgage shall not operate to affect or impair such Assessment lien, except that any persons who obtain an interest through any such foreclosure, and their successors -in- interest, shall take title free of such Assessment lien or any personal obligation for said charges as shall have accrued up to the time of the transfer of title, but subject to the Assessment lien for all said charges that shall accrue subsequent to the transfer of title. Notwithstanding the foregoing, any such delinquent Assessments that were extinguished pursuant to this paragraph may be reallocated and assessed to all of the remaining Parcels as a Common Expense 6.9 Collection of Proportionate Share of Net Costs. The Maintenance Corporation may perform repair and maintenance obligations within or adjacent to the Property which may provide benefit to owners of adjacent property and may be entitled to reimbursement of a proportionate share of the costs of such repair and maintenance pursuant to agreements with such adjacent owners. To the extent such costs were previously included as Common Expenses, any amounts collected by the Maintenance Corporation from such owners for such purpose and pursuant to such agreement shall be applied against the Common Expenses. Lapis Energy Development — CC &R's 13 6.10 Maximum Assessments. The Board shall not impose Assessments to defray the costs of any act or undertaking of the Maintenance Corporation if such Assessments are prohibited by Section 1366.1 of the California Civil Code, or any successor statute thereof. Additionally, unless the approval of a majority of the total voting power of each class of Members is otherwise obtained, the Regular Assessment for any, fiscal year may not be increased over the amount of the actual Regular Assessment levied for the immediately preceding fiscal year by an amount more than the greater of (i) twenty percent (20 %); or (ii) the percentage increase as compared with the previous fiscal year in the U.S. Bureau of Labor Statistics, La Quinta Consumer Price Index or any similar index substituted therefor. ARTICLE VII ENFORCEMENT OF ASSESSMENT LIENS 7.1 Delinquency. Any Assessment provided for in this Declaration, which is not paid, shall be delinquent fifteen (15) days after the date such Assessment became due. If an Assessment becomes delin uent, Declarant may recover costs, late charges and interest ermitted by Section 1 366(d of the California Civil Code or any successor statute thereto. The Assessments, together with such costs, late charges and interest, shall be a lien on the Parcel against which each such Assessment is made from and after the recordation of a notice of delinquent assessment which complies with Section 1 367(b) of the California Civil Code or any successor statute thereto. Each such Assessment, together with such costs, late charges and interest, shall also be the personal obligation of the Owner of such Parcel at the time when the Assessment becomes due. The personal obligation shall not pass to any successor -in -title of an Owner unless expressly assumed by such successor or required by applicable law. If an action is commenced, there shall be added to the amount of such Assessment, additional Assessments which become due and payable with respect to such Parcel following the recordation of the notice of delinquent assessment, the costs, late charges, and interest as hereinabove provided in this Section, and in the event a judgment is obtained, such judgment shall include such costs, late charges and interest. Each Owner vests in the Maintenance Corporation, or its assigns, the right and power to bring all actions at law or any lien foreclosure against such Owner or other Owners for the collection of such delinquent Assessments. Each Owner is hereby deemed to have consented to and authorized the recordation against its Parcel of a notice of delinquent assessment. 7.2 Foreclosure Sale. Any Assessment lien provided for in Section 7.1 may be enforced in any manner permitted by Section 1367 of the California Civil Code or any successor statute thereto. Upon the affirmative vote of a majority of the total voting power of the Maintenance Corporation, the Maintenance Corporation, through its duly authorized agents, shall have the power to bid on a Parcel which is being foreclosed upon pursuant to this Article, and to acquire, hold, lease, mortgage and convey the same. Nothing herein shall prohibit actions against an Owner to recover sums for which a lien is created Lapis Energy Development — CC &R's 14 pursuant to this Article or shall prohibit the Maintenance Corporation from accepting a deed in lieu of foreclosure. 7.3 Curing of Default. Upon the timely payment or other satisfaction prior to the completion of any sale held to foreclose the lien provided for in this Article of. (a) all delinquent Assessments specified in the notice of delinquent assessment; (b) all other Assessments which have become due and payable with respect to the Parcel as to which such notice of delinquent assessment was recorded; and (c) reasonable costs, late charges, and interest, the Maintenance Corporation shall record an appropriate release of such notice upon payment by the defaulting Owner of a fee to be determined by the Maintenance Corporation to cover the costs of preparing and filing or recording such release. ARTICLE VIII USE RESTRICTIONS 8.1 Use. The Property shall generally be used for automotive retail, mini storage, gas station and related commercial and retail purposes permitted under the zoning requirements and other laws, ordinances, acts, rules, orders and regulations applicable to the Property, and in all events in compliance with the Maintenance Corporation Rules. In addition, the Maintenance Corporation shall have the right to establish such other uses upon the Property as the Maintenance Corporation in its sole and absolute discretion may determine. Notwithstanding the foregoing, any use of the Property must be in compliance with this Declaration. 8.2 Si ns. No sign or billboard of any kind shall be displayed to the public view on any portion of the Property except: (a) such signs as may be used by Declarant and/or the Maintenance Corporation or its sales agents in connection with the development of the Property or the sale of any Parcel; (b) signs installed or displayed by the Maintenance Corporation; and (c) signs, the design and location of which have been approved by the Maintenance Corporation or the Architectural Committee and the City of La Quinta; provided however, that an Owner may display on its Parcel a sign advertising such Owner's business conducted on such Parcel or the sale or lease of its Parcel so long as such sign shall comply with any customary and reasonable standards promulgated by the Maintenance Corporation or the Architectural Committee as to the size, color, shape, location or other qualification for permitted signs. Each Owner shall repair any damage to or complete any restoration of the Property caused or necessitated by the display of signs by such Owner or its agent within a reasonable time after the occurrence of such damage or need for restoration. 8.3 Nuisance. No noxious or offensive trade or activity shall be permitted upon any Parcel or any part of the Property, which shall in any way interfere with the intended enjoyment of each Owner of its respective Parcel. Lapis Energy Development — CC &R's 15 8.4 Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept upon the Property 8.5 Oil and Mineral Rights. No oil drilling, oil development operations, oil refining, quarrying, or mining operations of any kind shall be permitted upon or in the Property nor, subsequent to the recording of this Declaration, shall oil wells, tunnels or mineral excavations or shafts be installed upon the surface of the Property or within five hundred (500) feet below the surface thereof. No derrick or other structure designed for use in boring for water, oil or natural gas shall be erected, maintained or permitted upon the Property. 8.6 Unsightly Items. All weeds, rubbish, debris or unsightly material or objects of any kind shall be regularly removed from each Parcel and shall not be allowed to accumulate thereon. All refuse containers, trashcans, woodpiles, storage areas, machinery and equipment shall be prohibited upon any parcel except in accordance with the Maintenance Corporation Rules. 8.7 Antennae and other Roof Structures. No television, radio or other electronic towers, aerials, antennae or devices of any type for the reception or transmission of radio and television broadcasts or other means of communication shall hereafter be erected, constructed, placed or permitted to remain on the Property unless and until the same shall have been approved in writing by the Maintenance Corporation (which approval shall not be unreasonably withheld) and the City to the extent that such approval is required by City Ordinance, or unless the same be contained within a building or underground conduits, or unless erected pursuant to the easement granted in Section 2.2. No other appliances or installations on exterior roofs of structures shall be permitted unless approved by the Maintenance Corporation. 8.8 Drainage. All drainage of water from any Parcel shall drain or flow into adjacent onsite streets or alleys, or into storm drain systems or facilities, and shall not be allowed to drain or flow upon, across or under any other portion of the Property unless pursuant to an easement for such purpose granted in Article II or by any other recorded agreement. Except as otherwise provided herein, an Owner shall not alter the drainage of water which exists pursuant to the drainage plan originally created at the time of the initial sale of its Parcel by Declarant to such Owner, except through the use of a positive drainage device which does not materially affect the concentration or flow direction of drainage water under said drainage plan. 8.9 Leases. Any agreement for the leasing or rental of a Parcel or portion thereof or space within a building thereon (hereinafter in this Section referred to as a "Lease ") shall provide that the terms of such Lease shall be subject in all respects to the provisions of this Declaration. Such Lease shall further provide that any failure by the lessee thereunder to comply with the terms of this Declaration shall be a default under the Lease. All Leases shall be in writing. The Owner of said leased or rented property has the duty and obligation to furnish the Maintenance Corporation with the name or names of the individuals currently leasing or renting said property and to maintain with the Lapis Energy Development — CC &R's 16 Maintenance Corporation a record of the current mailing address of said Owner. Any Owner who shall lease its Parcel or any portion thereof shall be responsible for assuring compliance with this Declaration by such Owner's lessee. Mini Storage tenants are exempt from this requirement. 8.10 Hazardous Waste. a) In the event any Owner constructs or operates, or causes to be constructed or operated upon its Parcel any facility the operation of which involves the manufacture, use, transportation, storage or disposal of any hazardous or toxic materials or substances, including, without limitation, a gasoline service station, such construction and operation shall in all events be subject to the prior approval of the Maintenance Corporation and in accordance with the terms of this Declaration. Such Owner shall comply in all respects with all laws, ordinances, rules and regulations established by all governmental agencies having jurisdiction, with respect to the construction, operation and maintenance of such facility and any underground storage tanks installed thereon. The Maintenance Corporation reserves the right, in its sole and absolute discretion, to retain, at such Owner's sole expense, an independent professional consultant to conduct such investigation or inspection of such Parcel to ensure compliance with the provisions of this Section. Such Owner hereby grants to the Maintenance Corporation and its agents, employees, consultants and contractors the right to enter upon such Parcel and to perform such tests thereon as are reasonably necessary to conduct such investigation. In the event any such facility or service station ceases to be operated upon such Parcel, the Owner of such Parcel agrees to take any and all action necessary to remove all underground storage tanks from such Parcel and to take any corrective action necessary to eliminate any soils contamination or other environmental hazard resulting therefrom. Such Owner shall submit to the Maintenance Corporation, for its approval, a report or study prepared by a consultant approved by the Maintenance Corporation, certifying that no soils contamination or other hazardous or toxic substance remains on such Parcel. In the event such Owner falls to take any such corrective action following reasonable advance notice from the Maintenance Corporation, the Maintenance Corporation shall have the right to take such action either directly or through the use of such soils engineers or other contractors as the Maintenance Corporation, in its sole discretion, shall select. All amounts expended by the Maintenance Corporation pursuant to this Section shall be reimbursed by such Owner as a Special Assessment within three (3) days following demand by the Maintenance Corporation b) Any Owner described in subsection 8.10 (a) above hereby agrees to indemnify, defend and hold harmless the Maintenance Corporation and each of the other Owners from and against any and all cost, expense, claims or liability (including attorneys' fees) which may be incurred as a result of any claims or demands resulting from the construction or, operation of such facility or gasoline service station upon such Owner's Parcel Lapis Energy Development — CC &R's 17 8.11 Architectural Approval. No improvement shall be commenced, erected, installed or maintained upon any Parcel, nor shall any exterior addition to or change or alteration thereof be made until the architectural renderings and schematic drawings showing the proposed grading, drainage, parking, loading and lighting plans and the nature, kind, shape, height, materials, colors and locations of the proposed Improvements (and in the case of the installation or construction of any Improvements used for the storage of hazardous materials, detailed plans and specifications for all monitoring and spill or leak control systems) shall have been submitted to and approved by the Architectural Committee formed pursuant to Section 8.12 below. The Architectural Committee shall establish architectural and landscape standards for the construction of Improvements within the Property, which shall comply with the standards set forth by the City of La Quinta and the Specific Plan. All Architectural improvements shall be approved by the City of La Quinta. 8.12 Architectural Committee. The Board shall establish an Architectural Committee consisting of not less than three (3) members (the "Committee Members "). The Committee Members shall be appointed for a one (1) year term. Any new Committee Member appointed to replace a Committee Member who has resigned, died or been removed shall serve for the remainder of such Committee Member's term. Committee Members whose terms have expired may be reappointed. 8.13 Approval Procedure. a) No Owner or agent thereof shall attempt to obtain a building, electrical, plumbing or similar permit or entitlement from the City or any successor agency thereto for any work which requires Architectural Committee approval under the terms of this Declaration, unless and until the Architectural Committee has given its prior written approval for such work or waived such approval right. b) Prior to the commencement of construction of any Improvements upon a Parcel, the applicable Owner shall submit to the Architectural Committee preliminary plans or schematic drawings in such form and containing such information as the Architectural Committee may reasonably require. Such plans and drawings shall include, but not be limited to, a site development plan showing the nature, kind, shape, height, materials, color, design and location of the proposed Improvements or exterior additions thereto, including, without limitation, existing and proposed driveways, parking areas, walkways, landscaped areas, storage areas, refuse areas, and building areas. a drainage and grading plan, a signage plan, a landscaping plan, a lighting plan and architectural elevations. The Architectural Committee shall approve or disapprove such plans and drawings within thirty (30) days following the receipt thereof. Final construction plans and specifications based upon previously approved preliminary plans and schematic drawings shall likewise be subject to the approval of the Architectural Committee within thirty (30) days following receipt. The failure of the Architectural Committee to respond within such thirty (30) day period will be deemed the disapproval thereof. Such Lapis Energy Development — CC &R's 18 thirty (30) day period will be extended to allow for the review of such additional or supplemental drawings or materials that the Architectural Committee may reasonably request. In the event the Architectural Committee disapproves any submitted plans and specifications, such disapproval must be accompanied by a reasonably detailed statement itemizing the reasons for such disapproval. Any resulting disputes shall be submitted to binding arbitration in Riverside County in accordance with rules established by the American Arbitration Association. 8.14 Nonliability for Approval of Plans. The Architectural Committee shall not review plans and specifications or construction drawings for engineering design, compliance with zoning and building ordinances and other applicable statutes, ordinances or governmental rules or regulations. Neither Declarant, the Architectural Committee nor the Board shall be liable for damages or otherwise by reason of any mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval of any submitted plans or drawings. In addition, each Owner hereby agrees to indemnify and hold harmless the Architectural Committee and the Committee Members from and against any and all costs and expenses incurred in connection with or as a result of an actions brought or claims asserted against them on account of such approval or disapproval, including attorneys' fees. ARTICLE IX REPAIR AND MAINTENANCE 9.1 Repair and Maintenance by the Maintenance Corporation. Without limiting the generality of Section 3.1, the Maintenance Corporation, acting through the Board and its officers, shall have the duty, to be accomplished in such manners and at such times as the Board shall prescribe, to: (a) manage, operate, control, maintain, repair, restore, replace and make necessary improvements to the Driveway System; and (b) maintain business park entry signs and monuments located within the Property and/or otherwise as shown on Exhibit B. The costs of any such maintenance and repair pursuant to this Section shall be a Common Expense. 9.2 Repair and Maintenance by Owners. Each Owner shall: a) except for the Driveway System to be maintained by the Maintenance Corporation as hereinabove provided, maintain its Parcel and any Improvements thereon in accordance with Maintenance Corporation Rules and otherwise in a first -class condition and state of repair, in compliance with all laws, rules, regulations, orders and ordinances of any governmental agency having jurisdiction over the Property, and in compliance with this Declaration; and b) in the event the Maintenance Corporation shall determine that any Improvements required to be maintained by the Maintenance Corporation have been damaged by Lapis Energy Development — CC &R's 19 a particular Owner, such Owner shall be responsible for repairing such damage in a timely manner and in accordance with such rules as the Maintenance Corporation shall from time to time adopt. 9.3 Noncompliance by Owner. In the event that an Owner fails to accomplish any installation, maintenance or repair required by this Article, the Board shall give notice to such Owner describing the deficiency, and setting a date for a hearing before the Board or a committee selected by the Board for such purpose. The procedure for such notice and hearing and for the correction of the violation is described in the Bylaws 9.4 Maintenance of Public Utilities. Nothing contained herein shall obligate the Maintenance Corporation to maintain, replace or restore the underground facilities or public utilities which are located within easements in the Property owned by such public utilities. ARTICLE X INDEMNITY; INSURANCE 10.1 Indemnity. Each Owner shall defend, indemnify and save the Maintenance Corporation and the other Owners harmless from all liability whatsoever on account of any damage, injury, lien, claim or demands related to the use of that Owner's Parcel or any repairs, alterations or Improvements thereto, or to the use by such Owner of any other Owner's Parcel, or to the breach by such Owner of its duties and obligations under this Declaration; provided, however, no Owner shall be liable for damage or injury ultimately determined to be caused by the negligence of Declarant or any other Owner or its agents, servants or employees. This obligation to indemnify shall include reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred. 10.2 Maintenance Corporation's Insurance. The Maintenance Corporation shall obtain and maintain in effect bonds and policies of insurance in such amounts, covering such risks and from such companies as it shall determine is appropriate from time to time. Any insurance obtained by the Maintenance Corporation shall be maintained by the Maintenance Corporation for the benefit of the Maintenance Corporation, Declarant, and Declarant's Mortgagee, as their interests may appear. Lapis Energy Development — CC &R's 20 ARTICLE XI TAXES; MECHANIC'S LIENS 11.1 Taxes and Assessments. Notwithstanding that a portion of any Parcel may be maintained by the Maintenance Corporation pursuant to this Declaration, each Owner shall pay or cause to be paid prior to delinquency, all taxes and assessments (collectively, "Taxes ") applicable to its Parcel, the Improvements located thereon and any personal property owned or leased by such Owner within the Property, provided that if the Taxes or any part thereof may be paid in installments, the Owner may pay each such installment as and when the same becomes due and payable, and, in any event, prior to the delinquency thereof. Any Owner may contest at its sole cost and expense any such Taxes with respect to its Parcel in any manner such Owner elects, so long as such Owner gives prior written notice thereof to the Maintenance Corporation, such contest is maintained with reasonable diligence and in good faith, at the time such contest is concluded, the contesting Owner promptly pays all such Taxes determined to be owing, together with all interest, penalties and costs thereon, and such contest is properly brought so as to stay any foreclosure against the applicable Parcel. 11.2 Mechanic's Liens. In the event any mechanic's or other lien is filed against the Parcel of any Owner as a result of services performed or materials furnished for the use of such Owner, the Owner causing such lien to be so filed agrees to cause such lien to be discharged of record (by bonding or otherwise) prior to the entry of final judgment for the foreclosure of such lien and further agrees to indemnify, defend and hold harmless the Maintenance Corporation, the other Owners and their Parcels against any liability, loss, damage, costs or expenses (including reasonable attorneys' fees and costs of suit) on account of such claim of lien. The Owner causing the lien to be filed agrees to promptly cause such lien to be released and discharged of record, either by paying the indebtedness which gave rise to such lien or by posting a bond or other security as shall be required by law to obtain such release and discharge. Nothing herein shall prevent the Owner causing such lien to be filed from contesting the validity thereof in any manner such Owner shall choose, so long as such contest is pursued with reasonable diligence. In the event such contest is determined adversely, such Owner shall promptly pay in full the required amount, together with any interest, Penalties, costs or other charges necessary to release such lien. Lapis Energy Development — CC &R's 21 ARTICLE X11 MORTGAGEE PROTECTION 12.1 Priority of Mortgage Lien. No breach of any of the covenants, conditions or restrictions, nor the enforcement of any of the lien provisions contained in this Declaration, shall affect, impair, defeat or render invalid the lien or charge of any Mortgage made in good faith and for value encumbering any Parcel, but all of said covenants, conditions and restrictions shall be binding upon and effective against any Owner whose title is derived through foreclosure or trustee's sale, deed in lieu of foreclosure, or otherwise, with respect to a Parcel. 12.2 Curing Defaults. A Mortgagee or the immediate transferee of such mortgagee, who acquires title by judicial foreclosure, deed in lieu of foreclosure or trustee's sale shall have the rights set forth in Section 6.8 and shall not be obligated to cure any breach of any provision of this Declaration which is noncurable or of a type which is not feasible to cure. The determination of the Maintenance Corporation made in good faith as to whether a breach is noncurable or not feasible to cure shall be final and binding on all Mortgagees. Lapis Energy Development — CC &R's 22 ARTICLE XIII AMENDMENT PROVISIONS 13.1 Amendments. Subject to the other provisions of this Declaration, this Declaration may be amended as follows: a) Until such time as there are Owners other than Declarant, amendments or modifications shall be effective when executed by Declarant, approved by the City and recorded in the Official Records. Thereafter, any amendments shall require the vote or written approval of Declarant and not less than fifty percent (50 %) of the remaining Owners and the approval of the City. b) An amendment or modification that requires the vote and written assent of the Owners as hereinabove provided shall be effective when executed by any person or persons authorized by Declarant, who shall certify that the amendment or modification has been approved as hereinabove provided. and when recorded in the Official Records. The notarized signatures of the Owners shall not be required to effectuate an amendment of this Declaration C) Any action to terminate, extend, modify or amend this Declaration shall be subject to the prior written approval of the City or any successor agency thereto. If the proposed termination, extension, modification or amendment is submitted to the City Planning Department, such proposed termination, extension, modification or amendment, if not acted upon by the City Planning Department shall be deemed approved thirty (30) days following its filing with the City. If the City notifies Declarant in writing within such thirty (30) day period that the proposed action is disapproved, setting forth in reasonable detail the reason(s) for such disapproval, then such proposed termination, extension, modification or amendment shall have no force or effect. Lapis Energy Development — CC &R's 23 ARTICLE XIV GENERAL PROVISIONS 14.1 Enforcement. a) Declarant (as long as Declarant owns any portion of the Property), or any Owner shall have a right of action against any Owner, and any Owner shall have a right of action against Declarant to enforce by proceedings at law or in equity, all restrictions, conditions, covenants and reservations now or hereafter imposed by the provisions of this Declaration or any amendment hereto, except that Owners shall not have any right of enforcement with respect to Assessment liens. With respect to the Maintenance Corporation Rules, the Maintenance Corporation shall have the exclusive right to the enforcement thereof. b) Any controversy, dispute or claim whatsoever between any Owners arising out of, in connection with, or in relation to the interpretation, performance or breach of any of the provisions of this Declaration, including, without limitation, the validity, scope and enforceability of this general reference provision, shall be determined, at the request of either party, by a general reference conducted by a judge pro -tem appointed pursuant to the provisions of California Code of Civil Procedure Section 638(1 ) et. seq., who shall be a retired judge of the Superior Court of the State of California. It is intended that this general reference provision be specifically enforceable in accordance with said Section 638(1). If the parties cannot agree upon a referee, one shall be appointed by the Presiding Judge of the Riverside County Superior Court from among such Court's list of retired judges of such Superior Court. C) It is expressly agreed and acknowledged by Declarant and by each Owner thereafter that the Maintenance Corporation and not the City is responsible for enforcing the provisions of this Declaration and the Maintenance Corporation Management Documents. d) If the Property, or any portion thereof, is not maintained in the condition required by this Declaration, then the City, following prior demand therefor and reasonable opportunity to cure, shall have the right, but not the obligation, to enter the Property and perform, at the sole expense of the applicable Owner, any maintenance required thereon by this Declaration or applicable City Ordinance. The applicable Parcel shall be subject to a lien in favor of the City to secure the obligation of the applicable Owner to reimburse the City for the costs incurred. All parkways, open areas, on -site slopes and landscaping shall be permanently maintained by the Owner of the Parcel containing the applicable Improvements (unless such obligation is otherwise reserved by the Maintenance Association hereunder or pursuant to the Maintenance Corporation Management Documents), or by other means acceptable to the City. Satisfactory proof of such maintenance shall be submitted to the City Planning and Public Works Departments prior to Lapis Energy Development — CC &R's 24 the issuance of building permits for the applicable Parcel. If required, reciprocal access easements and maintenance agreements ensuring access to all Parcels and joint maintenance of all roads, driveways or parking areas shall be provided by supplemental declaration or deed prior to the issuance of building permits for the applicable Parcel 14.2 No Waiver. The failure by Declarant or the Maintenance Corporation to enforce any covenant, condition, restriction or reservation herein contained, in any certain instance or on any particular occasion shall not be deemed a waiver of such right following any such future breach of the same or any other covenant, condition, restriction or reservation. 14.3 Cumulative Remedies. All rights, options and remedies of the Maintenance Corporation or the Owners under this Declaration are cumulative, and no one —f them shall be exclusive of any other, and the Maintenance Corporation and the Owners shall have the right to pursue any one or all of such rights, options and remedies or any other remedy or relief which may be provided by law, whether or not stated in this Declaration. 14.4 Severability. Invalidation of any one or a portion of these covenants, conditions, restrictions or reservations by judgement or court order shall in no way affect any other Provision of this Declaration. which shall remain in full force and effect. 14.5 Covenants to Run with the Land Term. The covenants, conditions and restrictions contained in this Declaration shall run with and bind the Property and shall inure to the benefit of and be enforceable by Declarant or any person or entity succeeding to Declarant's interest in the Property or any Owner, their respective legal representative, heirs, successors and assigns, for a term of thirty (30) years from the date this Declaration is recorded, after which time said covenants, conditions and restrictions shall be automatically extended for successive periods of ten (10) years, unless an instrument, signed by Declarant or any person or entity succeeding to Declarant's interest in the Property and by not less than fifty percent ( 50 %) of the other Owners has been recorded at least six (6) months prior to the end of any such period, agreeing to terminate this Declaration in whole or in part. 14.6 Construction. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a plan for the development of a business community and for the maintenance of the Property. The Article and Section headings have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction. 14.7 Singular Includes Plural. Whenever the context of this Declaration requires such inclusion, the singular shall include the plural and the masculine shall include the feminine and the neuter genders. 14.8 Nuisance. The occurrence of any act or omission whereby any provision, condition, restriction, covenant, easement, or reservation contained in this Declaration is violated in whole or in part, is hereby declared to be and constitutes a nuisance, and every remedy Lapis Energy Development — CC &R's 25 allowed by law or equity against a private nuisance shall be applicable against such occurrence and may be exercised by the Maintenance Corporation or any Owner. Such remedy shall be deemed cumulative and not exclusive. 14.9 Attorneys' Fees. In the event any action is instituted to enforce any of the provisions contained in this Declaration, the party prevailing in such action shall be entitled to recover from the other party thereto reasonable attorneys' fees (including fees and charges attributable to services performed by legal assistants or other non - attorney personnel working under the supervision of an attorney) and costs of such suit as determined by the court or by arbitration as part of the judgement. 14.10 Notices. Any notice to be given pursuant to the provisions of this Declaration shall be in writing and shall be deemed to have been properly delivered if personally delivered or if deposited in the United States mall, certified, return receipt requested, to the address set forth below. Any notice so personally delivered shall be deemed given upon delivery and any notice so deposited in the mall shall be deemed given forty-eight (48) hours after such deposit if deposited in the County of Riverside and ninety six (96) hours after such deposit if deposited outside of the County. To Declarant or the Maintenance Corporation: Lapis Energy Organization, Inc. 135 Saxony Road, P.O. Box 231310 Encinitas, CA 92023 -1310 To Owners: To the address furnished to Declarant from time to time. If no such address has been furnished, to the street address of such Owner's Parcel. Any party may change its address for the purpose of receiving notices by giving notice as herein provided. The affidavit of an officer or authorized agent of Declarant or the Maintenance Corporation declaring that a notice has been mailed to any Owner or Owners to the address or addresses shown on the records of Declarant or the Maintenance Corporation shall be deemed conclusive proof of such mailing, whether or not such notices are actually received. 14.11 Effect of Declaration. This Declaration is made for the purposes set forth in the Recitals to this Declaration and Declarant makes no warranties or representations, express or implied, as to the binding effect or enforceability of all or any portion of this Declaration, or as to the compliance of any of these provisions with laws, ordinances and regulations applicable thereto. 14.12 Nonliability of Officials. Neither Declarant, the Board nor any member of any committee established by the Maintenance Corporation shall be liable to any Owner for any damage, loss or prejudice suffered or claimed on account of any decision, approval or disapproval, course of action, act, omission, error, negligence or the like made in good Lapis Energy Development — CC &R's 26 faith within which Declarant or the Maintenance Corporation reasonably believed to be within the scope of its duties. 14.13 Construction By Declarant. Nothing in this Declaration shall limit the right of Declarant to alter the Parcels still owned by Declarant, or to construct such additional Improvements as Declarant deems advisable. Such right shall include, without limitation, erecting, constructing and maintaining on the Property such structures and displays as may be reasonably necessary for the conduct of the business of completing the work and disposing of the same by sale, lease or otherwise. Declarant shall repair any damage to and complete any restoration of the Property caused or necessitated by such activities of Declarant within a reasonable time after the occurrence of such damage or need for restoration. This Declaration shall not limit the right of Declarant at any time prior to acquisition of title by a purchase from Declarant to establish on the Property any additional licenses, reservations and rights -of -way to itself, to utility companies, or to others as may from time to time be reasonably necessary to the proper development and disposal of the Property. Declarant reserves the right to alter its construction plans and designs as it deems appropriate. The rights of Declarant under this Declaration may be assigned in whole or in part to any successor or successors by an express assignment incorporated in a recorded instrument, including, without limitation, a deed, lease, option agreement, land sale contract or assignment, as the case may be, transferring such interest to such successor. Declarant shall exercise its rights contained in this provision in such a way as not to unreasonably interfere with the Owners' rights to use and enjoy their Parcels. All construction shall be approved by the City of La Quinta. 14.14 Exempt Property. All properties dedicated to and accepted by or otherwise owned or acquired by a public authority shall be exempt from the provisions of this Declaration. 14.15 Estoppel Certificate. Each Owner separately covenants that upon written request (which shall not be more frequent than three (3 times during any calendar year) from time to time by Declarant, it will issue to a prospective Mortgagee of Declarant or to a prospective successor party to Declarant, within ten (10) business days of receipt of any such request, an estoppel certificate stating: a) whether the Owner to whom the request has been directed knows of any default by Declarant or the Maintenance Corporation under this Declaration, and if there are known defaults specifying the nature thereof: b) whether this Declaration has been assigned, modified or amended in any way by such Owner (and if it has, then stating the nature thereof); and C) that to such Owner's knowledge there is such conflict. Such statement shall act as a waiver of any claim by the Owner furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bonafide encumbrancer or purchaser for value without knowledge of facts to the contrary of those contained in the statement. In the Lapis Energy Development — CC &R's 27 event an Owner requested to give an estoppel certificate pursuant to the provisions of this Section shall fall —o give such certificate within the above ten (10) business day period, it shall be deemed that, as of the date of the request: (i) such Owner knows of no default by Declarant or the Maintenance Corporation under this Declaration; (ii) this Declaration has not, to such Owner's knowledge, been assigned or modified or amended in any way by such Owner, except as may appear of record; and (iii) this Declaration is, to such Owner's knowledge, in full force and effect. 14.16 Conflicts Between Maintenance Corporation Management Documents. In the event of a conflict between any provisions of any of the Maintenance Corporation Management Documents and the provisions of another Maintenance Corporation Management Document, the provisions of the Controlling Document named below in the first column shall be deemed to supersede the provisions of the Subordinate Document or Documents named below in the second column to the extent of any such conflict. CONTROLLING DOCUMENTS SUBORDINATE DOCUMENTS (a) Articles Declaration. Bylaws and Maintenance Corporation Rules (b) Declaration Bylaws and Maintenance Corporation Rules (c) Bylaws Maintenance Corporation Rules 14.17 Personal Covenant. To the extent the acceptance or conveyance of a Parcel creates a personal covenant between the Owner of such Parcel and Declarant or other Owners, such personal covenant shall terminate and be of no further force or effect from or after the date when a person or entity ceases to be an Owner except to the extent this Declaration may provide otherwise with respect to the payment of money to the Maintenance corporation. Lapis Energy Development — CC &R's 28 IN WITNESS WHEREOF, Declarant executed this instrument the day and year first hereinabove written. Lapis Energy Organization, Inc. A California Corporation Name: Title: Date: The City of La Quinta consents to this Declaration insofar as it complies with the requirements contained and approved on Parcel. Map 28422. This Declaration shall not be modified or amended without the prior approval of the City, as set forth in Section 13.1 (c) hereof. Planning Manager City Clerk City Attorney Lapis Energy Development — CC &R's 29 State of California County of On , 1997, before me , personally appeared , personally known to me /proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Name: State of California County of On , 1997, before me , personally appeared , personally known to me /proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Name: State of California County of On , 1997, before me , personally appeared , personally known to me /proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Name: Lapis Energy Development — CC &R's 30 EXHIBIT A LEGAL DESCRIPTION THE WEST HALF OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 7 EAST, SAN BERNARDINO BASE AND MERIDIAN; EXCEPTING THEREFROM THE WESTERLY 30 FEET THEREOF, AS CONVEYED TO THE COUNTY OF RIVERSIDE FOR ROAD PURPOSES BY DEED FILED FOR RECORD APRIL 9, 1952 AS DOCUMENT NO. 15194 OF OFFICIAL RECORD; ALSO EXECTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED MARCH 6, 1968 AS DOCUMENT NO. 20215 OF OFFICIAL RECORDS. Lapis Energy Development — CC &R's 31 EXHIBIT B PARCEL MAP 28422 Lapis Energy Development — CC &R's 32 IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA PARCEL MAP N0. 28422 BEING A SUBDIVISION OF THE Wt /2 OF THE W11/2 OF THE NW1 /4 OF THE SE 1/4 OF SECTION 29, T.5 S., R. 7 E., S.B.M. >:I V/S ASSOCIATES APRIL 1997 a I stQ AIS/� 111 so 40 O a t50 240 MAP SrrE �l Q SCALE 1' - W /�A STA SS41mOS PAT. mm NSf 1 4W AK 7.2P ILEA: O.M �,•, 707 Ian r400572rW 13617E (WAS.) — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — --- OW 9 2 3 CIETAR 'R 640-037 -017 SEE G� ,� N ✓ "Oover" 171}.]0 ✓� �• ,s9T.,d ti� ssr I D EAgIOIT, 4., ib, C-5., ARf3S lDICAIED HENDON % I 'rte_ IT �� � • B I � sue"'JT � 15 � � I � � Y ' � `I � M N• 2 17G.}j � 1 " i 3 � 4 I � sAI I T.87 AC NET I' TAM AC AE7 I I , sr1 400 AC. 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