HomeMy WebLinkAboutCT 00-06; Bressi Ranch; Tentative Map (CT) (2)Recording Requested ay:
National Comm'l Services
First American Titlev.
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Bressi Ranch Development, LLC
c/o Sares-Regts Group
18802 Bardeen Avenue
Irvine, CA 92612-1521
Attn: Mr. Derek Scott
DOC# 2005-0210897
10:18 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH. COUNTY RECORDER
FEES: 280.00 WAYS: 3
PAGES: 87
2005-02"10897
Space Above Reserved for Recorder Use Only
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND GRANT OF RECIPROCAL EASEMENTS
FOR BRESSI RANCH CORPORATE CENTER
r
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 2
1.1 "Allocable Share of Assessments" 2
1.2 "Articles" 2
1.3 "Assessments" 2
1.4 "Association" 3
1.5 "Association Rules" 3
1.6 "Board" 3
1.7 "Building" 3
1.8 "Building Plans" 3
1.9 "Bylaws" 3
1.10 "City" 3
1.11 "City Requirements" 3
1.12 "Conditions of Approval" 3
1.13 "Common Improvements" 3
1.14 "Common Expenses" 3
1.15 "Declarant" 4
1.16 "Design Guidelines" 4
1.17 "Design Review Committee" 4
1.18 "Drainage and Retention Facilities" 5
1.19 "Easements" 5
1.20 "Entry Monuments" 5
1.21 "Final Map" 5
1.22 "Financing Districts" 5
1.23 "Financing District Improvements" 5
1.24 "Foreclosure Event" 5
1.25 "Governing Documents" 5
1.26 "Improvement" or "Improvements" 5
1.27 "Lot" 6
1.28 "Maintenance" or "Maintain" 6
1.29 "Member" 6
1.30 "Mortgage" 6
1.31 "Mortgagee" 6
1.32 "Owner" 6
1.33 "Plans and Specifications" 6
1.34 "Potential Fee Credits" 6
1.35 "Project" 6
1.36 "Project Approval Documents" 7
1.37 "Property" 7
1.38 "Purchase Agreement" 7
1.39 "Site Plan Submissions" 7
1.40 "Supplemental Design Standards" 7
1.41 "Supplementary Declaration" 7
1.42 "Utilities" 7
• 1.43 "Voting Power" 7
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ARTICLE 2 ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 8
2.1 Membership 8
2.2 Transfer 8
2.3 Voting Rights 8
2.4 Classes of Voting Membership 8
2.5 Approval of Members; Total Voting Power as Quorum 9
ARTICLE 3 COVENANT FOR ASSESSMENTS 9
3.1 Creation of the Lien and Personal Obligation of Assessments 9
3.2 Purpose of Assessments 10
3.3 Regular Assessments 10
3.4 Special Assessments 11
3.5 Enforcement Assessments 12
3.6 No Offsets 12
.1.7 Funds Held in Trust 12
3.8 Late Payments 12
3.9 Failure to Fix Regular Assessments 13
ARTICLE 4 NONPAYMENT OF ASSESSMENTS 13
4.1 Delinquency 13
4.2 Notice of Delinquency 13
4.3 Foreclosure Sales 13
4.4 Curing of Default 14
ARTICLES DESIGN REVIEW 14
5.1 Appointment of Design Review Committee 14
5.2 General Provisions 15
5.3 Approval and Conformity of Plans 16
5.4 Signs 17
5.5 Nonliability for Approval of Plans 17
5.6 Appeal 18
5.7 Inspection and Recording of Approval 18
5.8 Reconstruction After Destruction 18
5.9 Hookup to Utilities 19
5.10 Exemptions and Amendments 19
5.11 Re-Subdivision and Modifications to Project Approval
Documents, Design Guidelines and Maximum Lot Buildout 19
5.12 Estoppel Certificate 19
ARTICLE 6 DUTIES AND POWERS OF THE ASSOCIATION 20
6.1 General Duties and Powers 20
6.2 General Duties of the Association 20
6.3 General Powers of the Association 20
6.4 General Limitations on the Power of the Board 21
6.5 Association Rules 21
6.6 Delegation of Powers 22
6.7 Right of Entry 22
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6.8 Personal Liability; Indemnification 22
6.9 Estoppel Certificate 22
ARTICLE 7 DEVELOPMENT OF PROPERTY 23
7.1 Initial Development and Construction of Common
Improvements 23
7.2 Subsequent Development and Operation in Accordance with
Project Approval Documents 23
7.3 Conformance By Owners to Requirements 23
7.4 Coordination with Declarant Concerning Improvement Credits 25
7.5 Cooperation in the Formation and Implementation of the
Financing Districts 25
7.6 Notice of Airport in Vicinity 26
ARTICLE 8 REPAIR AND MAINTENANCE 26
8.1 Repair and Maintenance by Association 26
8.2 Maintenance by Financing District 27
8.3 Repair and Maintenance by Owner 27
8.4 Right of Association to Maintain and Install 27
8.5 Right of Entry 28
8.6 Maintenance of Public Utilities 28
8.7 Maintenance by City 28
ARTICLE 9 INSURANCE AND INDEMNIFICATION 29
9.1 Association 29
9.2 Owner's Insurance 30
9.3 Waiver of Subrogation 32
9.4 Payment of Proceeds 32
9.5 Indemnification 32
ARTICLE 10 DESTRUCTION OF IMPROVEMENTS 32
10.1 Reconstruction of Common Improvements 32
10.2 Reconstruction of Improvements on Lots 33
ARTICLE 11 USE RESTRICTIONS 33
11.1 Use 33
11.2 Construction Activity 33
11.3 Nuisance 33
11.4 Temporary Structures 34
11.5 Vehicles 34
11.6 Oil and Mineral Rights 34
11.7 Unsightly Items 34
.8 Antennas and Other Roof Structures 34
.9 Storage and Loading Areas 35
.10 Drainage 35
.11 Uses Resulting in Increased Insurance Premiums 35
.12 Maintenance 35
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11.13 Water Wells 35
11.14 Exemptions of Declarant '....35
ARTICLE 12 RIGHTS OF ENJOYMENT 3(5
12.1 Right of Enjoyment 36
12.2 Waiver of Use 36
12.3 Access by Public Employees 36
ARTICLED EASEMENTS 37
13.1 Amendment to Eliminate Easements 37
13.2 Nature of Easements 37
13.3 Certain Rights and Easements Reserved to the Association 37
13.4 Certain Rights and Easements Reserved to Declarant 37
ARTICLE 14 RIGHTS OF LENDERS 39
14.1 Filing Notice; Notices and Approvals 39
14.2 Priority of Mortgage Lien 39
14.3 During Defaults 39
14.4 Resale 40
14.5 . Relationship with Assessment Liens 40
14.6 Other Rights of First Mortgagees 41
14.7 Mortgagees Furnishing Information 41
14.8 Conflicts 41
14.9 Voting Power of First Mortgagees 41
ARTICLE 15 DE-ANNEXATION 42
15.J Deannexation 42
ARTICLE 16 GENERAL PROVISIONS 42
16.1 Enforcement 42
16.2 No Waiver 42
16.3 Cumulative Remedies 42
16.4 Severability 43
16.5 Covenants to Run with the Land; Term 43
16.6 Construction 43
16.7 Singular Includes Plural 43
16.8 Attorneys'Fees 43
16.9 Notices 43
16.10 Effect of Declaration 44
16.11 Personal Covenant 44
16.12 Leases 44
16.13 Amendments 44
16.14 Conflicts 46
16.15 Table of Contents and Captions 46
16.16 Declaration for Exclusive Benefit of Owners 46
16.17 No Partnership, Joint Venture, Principal-Agent or Third Party
Beneficiary Relationship 46
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16.18 Governing Laws 46
16.19 Time of Essence 46
16.20 Exhibits 46
16.21 Davis Stirling Act 47
EXHIBITS
EXHIBIT A Legal Description and Plat of Property Subject to Declaration
EXHIBIT B Plat of Easements and Common Improvements
EXHIBIT C Allocable Share of Assessments and Voting Power
EXHIBIT D Plat of Flight Activity Zone
SUBORDINATION (Bank of America)
SUBORDINATION (Bressi Ranch Funding Company)
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND GRANT OF RECIPROCAL EASEMENTS
FOR BRESSI RANCH CORPORATE CENTER
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND GRANT OF RECIPROCAL EASEMENTS FOR BRESSI RANCH CORPORATE
CENTER ("Declaration") is made this \4**- day ofMAffA^ . 2005, by BRESSI
RANCH DEVELOPMENT, LLC, a Delaware limited liability company (hereinafter referred to
as "Declarant").
RECITALS
A. Property Owned by Declarant. Declarant is the owner of the real property
described in Exhibit A attached hereto and incorporated by this reference as though set forth in
full (the "Property").
B. Nature of Project. Declarant intends to transfer portions of the Property to other
persons or entities for purposes of development thereof. Declarant desires that the transferee or
transferees create on the Property an integrated development providing for a mixture of office,
light manufacturing, and research and development uses, to the extent permitted under the
Project Approval Documents (as defined below) to be known as the "Bressi Ranch Corporate
Center." Declarant further desires to subject the Property to certain limitations, restrictions,
conditions and covenants and as hereinafter set forth. The development of the Property shall be
subject to this Declaration and the /oning and land use requirements of the City of Carlsbad.
C. Establishment of Covenants. Conditions and Restrictions. Declarant has
deemed it desirable to establish covenants, conditions and restrictions affecting the Property and
each and every portion thereof, which shall constitute a general scheme and planned
development program for the management of the Property, and for the use, occupancy and
enjoyment thereof, all for the purpose of enhancing and protecting the value, desirability and
attractiveness of the Property and enhancing the quality of environment within the Property.
D. Creation of Association. It is desirable for the efficient management of the
Property and preservation of the value, desirability and attractiveness of the Property to create an
incorporated association delegated and assigned the powers of managing the Property,
administering and enforcing these covenants, conditions and restrictions, collecting and
disbursing funds pursuant to the assessments and charges hereinafter created and to perform such
other acts as shall generally benefit the Property. The Bressi Ranch Corporate Center Owners
Association, a California nonprofit mutual benefit corporation ("Association"), has been (or will
be prior to the sale of any Lot for development) incorporated under the laws of the State of
California for the purpose of exercising the powers and functions hereinafter set forth. All
Owners shall be Members of the Association and shall be subject to its powers and jurisdiction.
DECLARATION
Declarant declares that the Property is, and shall be, held, conveyed, hypothecated,
encumbered, leased, rented, used and occupied subject to the following limitations, restrictions,
easements, covenants, conditions, liens and charges, all of which are declared and agreed to be in
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furtherance of a plan of Lot (as defined below) ownership for the subdivision, improvement,
protection, maintenance, use and sale of Lots within the Property, and al! of which are declared
and agreed to be for the purpose of enhancing, maintaining and protecting the value and
attractiveness of the Property. All of the limitations, restrictions, easements, covenants,
conditions, liens and charges shall run with the land, shall be binding upon and inure to the
benefit of all parties having or acquiring any right, title or interest in the Property, shall be
enforceable equitable servitudes and shall be binding on and inure to the benefit of the
successors-in-interest of such parties. Declarant further declares that it is the express intent that
this Declaration satisfy the requirements of California Civil Code Section 1353, if applicable to
the Project, or any successor statutes or laws.
ARTICLE 1
DEFINITIONS
Unless the context clearly indicates otherwise, the following terms used in this
Declaration are defined as follows:
1.1 "Allocable Share of Assessments" shall mean the portion of certain Assessments
to be paid by the Owner of each Lot, which shall be as set forth on Exhibit C. The Allocable
Share of Assessments set forth on Exhibit C is fixed and may not be changed, altered or amended
except by a duly authorized and recorded amendment to this Declaration. Each Owner is
deemed to have accepted the Allocable Share of Assessments and Voting Power as set forth on
Exhibit C and may not object to or challenge the amounts or figures set forth on Exhibit C,
whether by re-measuring or re-defining the Lot size, or any other means.
1.2 "Articles" shall mean and refer to the Articles of Incorporation of the Association
as the same may, from time to time, be duly amended.
1.3 "Assessments" shall mean and refer to the following:
(a) "Enforcement Assessment" shall mean a charge against a particular
Owner and its Lot directly attributable to the Owner, to reimburse the Association for costs
incurred for damage caused by such an Owner in bringing the Owner's Lot into compliance with
the provisions of this Declaration, the Articles, Bylaws or Association Rules, or any other charge
designated as an Enforcement Assessment in this Declaration, the Articles, Bylaws or
Association Rules, together with attorneys' fees and other charges payable by sudi Owner,
pursuant to the provisions of this Declaration, plus interest thereon as provided for in this
Declaration.
(b) "Regular Assessment" shall mean the amount, a charge against each
Owner and its Lot, to be paid by each Owner to the Association for Common Expenses and shall
include capital contributions to the Association for reserves.
(c) "Special Assessments" shall mean a charge against each Owner and its
Lot for certain unanticipated Common Expenses or other expenses of the Association when the
estimated amount of funds necessary to defray such expenses for a given fiscal year is
inadequate due to unanticipated delinquencies, costs of additional maintenance or unexpected
repair or maintenance, or funds otherwise required for any authorized activity of the Association.
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1.4 "Association" shall mean and refer to the Bressi Ranch Corporate Center Owners
Association, a California nonprofit mutual benefit corporation, incorporated under the laws of
the State of California, its successors and assigns.
1.5 "Association Rules" shall mean rules and regulations adopted by the Association
pursuant to the Article hereof entitled "Duties and Powers of the Association."
1.6 "Board" shall mean the Board of Directors of the Association.
1.7 "Building" shall mean any Improvements erccled on the Property and available
for occupancy or other use by an Owner.
1.8 "Building Plans" shall mean reasonably detailed plans and specifications with
respect to any Improvements to be constructed on a Lot subsequent to the Design Review
Committee's approval of the Site Plan Submissions, which plans and specifications require the
approval of the Design Review Committee pursuant to the terms of Section 5.3 hereof.
1.9 "Bylaws" shall mean and refer to the Bylaws of the Association.
1.10 "City" shall mean and refer to the City of Carlsbad, State of California.
1.11 "City Requirements" shall mean all ordinances, resolutions, policies, guidelines,
and requirements duly adopted by the City.
1.12 "Conditions of Approval" shall mean the Conditions of Approval for Bressi
Ranch Industrial - CT 02-15 adopted pursuant to Resolution No. 5564, adopted by the City on
March 17,2004.
1.13 "Common Improvements" shall mean those Improvements to be constructed by
Declarant and maintained by the Association as provided herein. The Common Improvements
shall initially mean the Improvements so designated on Exhibit B. Additional Common
Improvements may be designated by the Board.
1.14 "Common Expenses" shall mean and refer to the actual and estimated costs of:
(a) construction, maintenance, management, operation, repair and
replacement with respect to the Easements or Common Improvements, including, without
limitation, any capital improvements such as storm water detention basins, waterlines, walkways,
storm drain lines, fences, hedges, poles, signs, and utility distribution lines and related facilities;
(b) maintenance by the Association of areas within the public right-of-way of
public streets within and in the vicinity of the Property if provided in this Declaration or pursuant
to agreements with the City and not otherwise maintained by a Financing District;
(c) management and administration of the Association including but not
limited to, compensation paid by the Association to managers, accountants, attorneys, other
professionals and employees;
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(d) the following, to the extent not metered or billed directly to Owners by the
provider thereof: utilities, refuse storage, collection and disposal, gardening and other services
which arise in connection with the Easements or Common Improvements, that generally benefit
and enhance the value and desirability of the Property;
(e) fire, casualty, liability, workers' compensation and other insurance
covering the Easements, the Common Improvements, or any obligation of Association as
provided herein;
(0 any other insurance obtained by the Association as provided herein;
(g) reasonable reserves as deemed appropriate by the Board with respect to
the obligations of Association hereunder;
(h) bonding and insurance with respect to the directors serving on the Board,
any professional managing agent or any other person handling the funds of the Association as
provided herein;
(i) taxes lawfully owed and paid by the Association;
(j) expenses incurred by the Design Review Committee or other committees
established by the Board (and not otherwise required to be paid by an Owner pursuant to this
Declaration); and
(k) other expenses incurred by the Association for any reason whatsoever in
connection with the Easements, the Common Improvements, or the costs of any other item or
items designated by this Declaration, the Articles, Bylaws or the Association Rules, or in
furtherance of the purposes of the Association or in the discharge of any duties or powers of the
Association.
1.15 "Declarant" shall mean Bressi Ranch Development, LLC, a Delaware limited
liability company, any entity succeeding thereto by merger, consolidation or acquisition of its
assets substantially as an entirety and any assignee of Declarant who, pursuant to a purchase of
Declarant's remaining interest in the Project then held by Declarant for purposes of development
and sale thereof, agrees to accept by recorded instrument assignment of Declarant's rights and
delegation of all or any portion of Declarant's duties as set forth in this Declaration with respect
to such Lots, Every assignee of a Declarant may further assign and delegate such assignee's
rights and duties as Declarant by recorded instrument. To the extent that Declarant intends to
reserve any of its rights or duties as such in connection with an assignment, it shall expressly set
forth the rights or duties reserved in the instrument of assignment and shall remain Declarant as
to the rights and duties so reserved.
1.16 "Design Guidelines" shall mean the guidelines and requirements described in
Part VII of the Bressi Ranch Master Plan (MP 178) and other Project Approval Documents, each
as adopted, modified, or supplemented, from time, to time and approved by the City.
1.17 "Design Review Committee" shall mean and refer to the committee or
committees provided for in Article 5 of this Declaration.
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1.18 "Drainage and Retention Facilities" shall mean those certain drainage and
retention facilities required to be constructed within the Project pursuant to the Project Approval
Documents.
1.19 "Easements" shall mean those easements reserved by Declarant for the benefit of
the Association pursuant to Article 13 hereof together with any Common Improvements
constructed thereon. The Easements shall initially mean the Easements depicted on Exhibit B,
including the Landscape Easement, the Storm Drain Easement, and the Utility Easement, the
Signage Easement. To the extent all or any portion of the Easements are set forth on the Final
Map (wiih dimensions and geometry), and there is any apparent inconsistencies between the
Easements as depicted on Exhibit B and the Easements as set forth on the Final Map, the
Easements as set forth on the Final Map shall control.
1.20 "Entry Monuments" shall mean those entry monuments and associated signage
described more fully in Exhibit B and D attached hereto.
1.21 "Final Map" shall mean the map approved by the City, in conformance with the
Project Approval Documents, recorded prior to this Declaration creating the Lots, and identified
on Exhibit A.
1.22 "Financing Districts" shall mean a maintenance assessment district, landscape
and lighting district, community facilities district, or other assessment district formed for the
purpose of providing revenues for the operation and maintenance of certain facilities benefiting
the Project further described in Section 7.5 below.
1.23 "Financing District Improvements" means any Improvements constructed
within the Project either by Declarant or at Declarant's cost and expense, which are to be
maintained by the City through revenues from a Financing District.
1.24 "Foreclosure Event" shall mean a judicial or non-judicial foreclosure sale or a
conveyance in lieu thereof.
1.25 "Governing Documents" shall mean this Declaration, the Articles, Bylaws,
Association Rules, Design Guidelines, Project Approval Documents and Supplemental Design
Standards.
1.26 "Improvement" or "Improvements" shall mean and refer to all structures and
appurtenances thereto of every type and kind in the Project constructed by an Owner or
Declarant, including but not limited to. Buildings, structures, nuthuildings, utility installations,
roads, sidewalks, walkways, driveways, parking areas, fences, screening walls, block walls,
retaining walls, awnings, patio and balcony covers, stairs, landscaping, hedges, slopes,
windbreaks, the exterior surfaces of any visible structure, signs, planted trees and ahrubs,
irrigation systems, antennae, poles, signs, solar or wind powered energy systems or equipment,
and water softener, heater or air conditioning and heating fixtures or equipment; the demolition
or destruction by voluntary action of any structure or appurtenance thereto of every type and
kind; the 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; landscaping, planting, clearing or removing of trees, shrubs, grass or
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plants; and any change or alteration of any previously approved Improvement including painting
or any change of exterior appearance color or texture.
1.27 "Lot" shall mean each legal lot identified on Exhibit A, and each subsequent
additional legal Lot created pursuant to and in compliance with the California Subdivision Map
Act, the ordinances and regulations of the City, or any laws or amendments succeeding or
amending such laws, that is permitted to be created pursuant to Section 5.11 hereof.
1.28 "Maintenance" or "Maintain" as used in the context of either the Easements or
the Lots shall mean keeping the Improvements and the Common Improvements in the Project,
including but not limited to, walkways, driveways, parking areas, landscaping, lighting, retention
basins, drainage, monuments, signage and other related fixtures in a state consistent with other
similar first-class mixed-use developments in San Diego County. Maintenance of landscaping
shall further mean the exercise of regular fertilization, irrigation and other garden management
practices necessary to promote a healthy weed free environment for optimum plant growth.
Maintenance also includes re-painting or otherwise maintaining other exterior surfaces, repairs,
restoration, replacement and reconstruction of such Improvements as the need arises.
Maintenance shall also mean maintenance, repair, restoration, replacement of Improvements as
may be necessary to conform to the requirements of the Project Approval Documents, as the
same may be amended.
J .29 "Member" shall mean and refer to every person or entity holding a membership
in the Association in accordance with the terms of this Declaration.
1.30 "Mortgage" shall mean and refer to any duly recorded mortgage or deed of trust
encumbering a Lot. A "First Mortgage" shall refer to a Mortgage which has priority over all
other Mortgages encumbering a specific portion of or interest in the Project.
1.31 "Mortgagee" shall mean and refer to the mortgagee or beneficiary under any
Mortgage. A "First Mortgagee" shall mean the holder of a first priority Mortgage.
1.32 "Owner" shall mean and refer to one or more persons or entities, including
Declarant, who are alone or collectively the record owner of a Lot. Owners include vendees
under real property sales contracts, as defined in Civil Code Sections 2985 seq. Owners do not
include persons holding title merely as security for the performance of an obligation or lessees.
1.33 "Plans and Specifications" shall mean the Site Plan Submissions and the
Building Plans, as applicable.
1.34 "Potential Fee Credits" shall mean those fees for which a credit is available or
due as a result of the Project Approval Documents, provisions of law or City or school district
policies or ordinances, school mitigation fees, water and sewer capacity charges and
transportation development impact fees for the Project.
1.35 "Project" shall mean the Property together with all Buildings and other
Improvements constructed thereon, and which shall be known as the "Bressi Ranch Corporate
Center."
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1.36 "Project Approval Documents" shall mean the Bressi Ranch Master Plan (MP
178), and related General Plan Land Use Amendment, Zone Change, Local Facilities
Management Plan, Carlsbad Tract Subdivision Map, Hillside Development Permit, and related
items all as set forth in City Resolution No. 2002-205 adopted July 9, 2002, the Conditions of
Approval, Special Use Permit 02-03 for Bressi Ranch Industrial adopted by the City pursuant to
Resolution No. 5565 on March 17, 2004, the Final Environmental Impact Report for Bressi
Ranch certified by the City and the Mitigation Monitoring Program adopted in conjunction
therewith, the Final Map, and all as the same may be amended, modified, or supplemented by
Declarant or its designees in their sole discretion from time to time.
1.37 "Property" shall mean and refer to the real property described on Exhibit A
attached hereto, together with those portions of the real property described in Exhibit B attached
hereto which are annexed to this Declaration.
1.38 "Purchase Agreement" shall mean and refer to any purchase agreement entered
into between Declarant and an Owner with respect to such Owner's acquisition of a Lot from
Declarant.
1.39 "Site Plan Submissions" shall mean those submissions required to obtain site
plan review during the planned industrial development permit process pursuant to the terms of
the Project Approval Documents (including those items specifically denominated as "Site Plan
Submissions" therein) together with such additional materials as may be reasonably requested by
the Design Review Committee in order to review such materials as contemplated in the Project
Approval Documents.
1.40 "Supplemental Design Standards" shall mean the Supplemental Design
Standards adopted by the Design Review Committee in accordance with Section 5.3 hereof.
1.41 "Supplementary Declaration" shall mean those certain Supplementary
Declarations that may be recorded by Declarant as further provided herein.
1.42 "Utilities" shall mean all physical installations necessary or appropriate for the
service to any Lot or any part thereof of water, sewer, electricity, gas, drainage, irrigation,
communication systems, cable television, energy monitoring functions, security services, traffic
metering facilities, or other physical installations of a similar motive for the benefit of any Lot or
the Common Lots or any port thereof.
1.43 "Voting Power" shall mean the voting rights applicable to each Lot set forth on
Exhibit C or as reallocated by the Board as provided in this Declaration. The Voting Power set
forth on Exhibit C is fixed and may not be changed, altered or amended except by a duly
authorized and recorded amendment to this Declaration, or as reallocated specifically by the
Board as set forth in this Declaration. Each Owner is deemed to have accepted the Voting Power
as set forth on Exhibit C and may not object to or challenge the amounts or figures set forth on
Exhibit C, whether by re-measuring or re-defining the Lot size, or any other means.
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ARTICLE 2
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
2.1 Membership. Every Owner shall be a Member of the Association. The
Declarant shall be an Owner for purposes of membership in the Association and be subject to the
rights and duties of an Owner under this Declaration to the extent that it owns any Lots. The
terms and provisions set forth in this Declaration, which are binding upon all Owners, are not
exclusive, and Owners shall, in addition, be subject to the terms and provisions of the Articles,
Bylaws and Association Rules to the extent those provisions are not in conflict with this
Declaration. Membership of Owners in the Association shall be appurtenant to and may not be
separated from an Owner's Lot. Ownership of a Lot shall be the sole qualification for
membership; provided, however, a Member's voting rights may be regulated or suspended as
provided in this Declaration, the Bylaws or the Association Rules.
2.2 Transfer. 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 Lot. Any attempt to make a prohibited transfer is void.
2.3 Voting Rights. An Owner's right to exercise its Voting Power shall vest
immediately upon the date Regular Assessments commence upon such Owner's Lot as provided
in this Declaration. All voting rights shall be subject to the restrictions and limitations provided
herein and in the Articles, Bylaws and Association Rules.
2.4 Classes of Voting Membership. The Association shall have two classes of
voting membership as described below.
(a) Class A. Class A Members shall be all Owners, with the exception of the
Declarant, until the Class B membership has been converted to Class A membership. Each Class
A Member shall be entitled to the number of votes represented by its Voting Power. If the
Owner is a corporation, partnership, limited liability company or other legal entity, such entity
shall delegate an individual to act and vote on behalf of such entity with respect to Association
matters. When more than one person or entity owns a portion of the interest in an Lot required
for membership, each such person shall be a Member and the vote(s) for such Lot shall be
exercised as they among themselves determine, but in no event shall more than the total number
of votes attributable to the Lot be cast with respect to any Lot. Unless the Board receives a
written objection in advance from a Co-Owner, it shall be conclusively presumed that a Co-
Owner who is present and voting is acting with the consent of its Co-Owners. If any Lots
originally subdivided by Declarant are further subdivided by a subsequent Owner (with the prior
consents required pursuant to Section 5.11 of this Declaration) into separate legal lots, the Voting
Power allocable to the re-subdivided Lot shall be reallocated by the Board based on its
reasonable determination of the relative acreage of such Lots.
(b) Class B. The Class B Member shall be Declarant. The Class B Member
shall be entitled to four (4) votes for each vote allocated in the Voting Power to any Lot for
which Declarant is the Owner; provided that the Class B membership shall cease and be
converted to Class A membership on the happening of either of the following events, whichever
occurs earlier:
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(i) when Declarant no longer owns at least one (l)Lot within the
Property;
(ii) when Declarant notifies the Board in writing thai it has elected to
become a Class A Member; or
(Hi) the expiration often (10) years after the date of the recordation of
this Declaration.
2.5 Approval of Members; Total Voting Power as Quorum. Unless elsewhere
otherwise specifically provided in this Declaration or the Bylaws, any provision of this
Declaration or the Bylaws which requires the vote or written assent of the Voting Power of the
Association or any class or classes of membership shall be deemed satisfied by the following:
(a) The vote in person or by proxy if a meeting is held or by written ballot if
no meeting is held of the required percentage of a quorum of the Voting Power of the
Association. If not by written ballot, said vote shall be at a meeting duly called and noticed
pursuant to the provisions of the Bylaws dealing with annual or special meetings of the
Members.
(b) Written consents signed by the entire membership of the Association if the
action is taken without meeting or written ballot. Said written consent shall be solicited pursuant
to the procedures provided in the Bylaws.
(c) In any matter requiring the vote of the Members, but not specifically
provided for in this Declaration or the Articles, Bylaws, Association Rules or any contract
executed by the Association, a simple majority of the Voting Power of a quorum of the Members
entitled to vote on such matters shall suffice.
(d) Except with respect to amendments to this Declaration, the Articles or the
Bylaws themselves, or with respect to matters specified in such documents as requiring a
stipulated percentage of the "total Voting Power" of the Members or Association, in which event
the specified percentage shall be of all of the votes in the Association eligible to be cast,
wherever the Declaration, the Articles or the Bylaws provide that an action requires a majority or
other specified percentage of the "Voting Power" of the Members, Owners, or Association such
percentage is only of that portion of the Voting Power of the Members or Owners necessary to
constitute a quorum as established in the Bylaws. The actual minimum percentage of the total
Voting Power required with respect to an action is the product of the percentage thereof
constituting a quorum multiplied by the percentage set forth in the Declaration, Articles or
Bylaws as necessary to approve the action proposed to be taken.
ARTICLE 3
COVENANT FOR ASSESSMENTS
3.1 Creation of the Lien and Personal Obligation of Assessments.
(a) Covenant to Pay Assessments. Each Owner, by acceptance of a deed or
other conveyance of a Lot, whether or not it shall be so expressed in any such deed or other
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conveyance, is deemed to covenant and agree to pay to the Association each and every
Assessment, including Regular Assessments, Special Assessments, and Enforcement
Assessments. Such Assessments are to be fixed, established and collected from time to time as
provided in this Declaration. The Assessments, together with interest thereon, late charges,
attorneys' fees and court costs, and other costs of collection thereof, as hereinafter provided,
shall become a lien against a Lot upon recordation of a notice thereof as provided in
Section 3.l(b) or upon receipt by Owner, pursuant to Section 1367 of the Civil Code or any
successor statute thereto, of actual notice of delinquency.
(b) Notice of Delinquent Assessment. An Assessment shall become a lien
against a Lot so assessed upon recordation of a notice of delinquent assessment in the office of
the San Diego County Recorder duly signed and acknowledged by the President or Secretary of
the Association. Such notice shall set forth the amount of the delinquent Assessment, a
description of the Lot to which the lien attached, the name of the record owner thereof and the
name and address of the trustee entitled to conduct a nonjudicial foreclosure thereof. Such notice
shall also provide that the lien secures any additional sums which may be levied pursuant to this
Declaration if the Assessment is not paid when due. When the Association records a notice of
delinquency, it shall also record a notice of satisfaction and release of Hen upon timely payment
of the sums secured thereby.
(c) Personal Obligation. Each such Assessment, together with such interest,
late charges, costs and attorneys' fees, shall also be the personal obligation of the Owner of the
Lot at the time when the Assessment becomes due. The personal obligation shall not pass to the
successors in title of an Owner unless expressly assumed by such successors but each such
successor shall take subject to the notice of assessment (or notice of delinquency) or to any
Assessment of which it has actual notice pursuant to Section 1367 of the Civil Code or any
successor statute.
3.2 Purpose of Assessments. The Assessments levied by the Association shall be
used exclusively for the purposes of managing the Project as provided in this Declaration;
promoting the use, occupancy and enjoyment of the Project as provided in this Declaration;
enhancing and protecting the value, desirability and attractiveness of the Project and the quality
of environment within the Project as provided in this Declaration, including, without limitation,
the improvement, maintenance and administration of the Property; administering and enforcing
this Declaration; collecting and disbursing funds pursuant to this Declaration; improving and
maintaining the Easements and Common Improvements or furthering any other duty or power of
the Association as provided in this Declaration.
3.3 Regular Assessments.
(a) Calculation of and Date of Commencement of Regular Assessments.
Each Owner's share of Regular Assessments shall be determined by multiplying the Common
Expenses budgeted as provided herein by each Owner's Allocable Share of Assessments. The
Regular Assessments shall commence as to all Lots on the first day of the month immediately
succeeding the date that Declarant charges the Association with the duties and powers provided
for in this Declaration, including, but not limited to, the transfer to the Association of the
maintenance responsibilities for the Easements and the Common Improvements. The first
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Regular Assessment payments shall be adjusted according to the number of months remaining in
the Association's fiscal year.
(b) Budget. Not less than forty-five (45) days prior to the beginning of each
fiscal year, the Board shall distribute to each Owner a pro forma operating budget for the
upcoming fiscal year which shall estimate the total Common Expenses and the cash requirements
to meet Common Expenses for such fiscal year. The budget shall be accompanied by a schedule
setting forth the apportionment of Regular Assessments among the Lots based upon the
Allocable Shares of Common Expenses. Each Owner shall thereafter pay to the Association its
Regular Assessment on the first day of each calendar month of the Association's fiscal year,
provided that the Board may elect to require such payments to be made on a quarterly basis by
written notice thereof to the Owners. The amount of the installments shall be adjusted during the
course of the fiscal year, as necessary, to reflect the commencement of the obligation to pay
Assessments by Owners not so required as of the beginning of the fiscal year and related
adjustments to the Allocable Shares of Assessments. The Board shall comply with all provisions
of the other Governing Documents and the California Civil Code applicable to the Project with
respect to budgets, financial statements and information to be generated and provided to Owners
and hooks and records to be maintained by owners associations.
(c) Surplus. The Association's budget shall include an estimate of cash
receipts from sources other than Assessments, if any, and a provision for reserves for
contingencies, repairs and replacements which are the obligation of the Association. The
estimate of cash requirements shall be subject to offset for any surplus from Regular
Assessments ("Surplus") accrued for the fiscal year then ending. For purposes of this Section,
Surplus for any fiscal year means the amount by which the sum of collected Regular
Assessments plus cash receipts from sources exceeds the sum of the actual outlays for Common
Expenses plus unexpended reserves for contingencies, repairs and replacements.
(d) Capital Contributions for Reserves. The Regular Assessments shall
include reasonable amounts as determined by the Board collected as reserves for Ihc future repair
or replacement of all or a portion of the Easements or Common Improvements, or any other
purpose as is within the scope of the Board's authority. All amounts collected as reserves,
whether pursuant to this Section or otherwise, shall be deposited by the Board in separate bank
accounts to be held in trust for the purposes for which they are collected and are to be segregated
from and not commingled with any other funds of the Association. The Board may require that
the sums representing capital contributions for reserves be paid by separate check or in such
other manner as clearly segregates such sums from those which are being paid on account of
current expenses.
3.4 Special Assessments. In the event that during any fiscal year, the Board
determines that the estimated total amount of funds necessary to defray Common Expenses or
other expenses of the Association for a given fiscal year is or will be inadequate to pay such
Common Expenses or expenses due to unanticipated delinquencies, costs of additional
maintenance or unexpected repair or replacement of portions of the Common Area, or of funds
otherwise required for any authorized activity of the Association, the Board may levy a Special
Assessment chargeable to each Owner based on each Owner's Allocable Share of Assessments
to defray such costs. The Board may, in its discretion, prorate such Special Assessment payment
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over the remaining months of the Association's fiscal year or may levy it immediately against
each Lot. Each such Special Assessment payment shall be due and payable within fifteen (15)
days after an Owner receives written notice with respect thereto (unless such notice specifies a
later date for payment) and shall be subject to charges for late payment and interest set forth in
Section 3.10 below.
3.5 Enforcement Assessments. The Association may levy an Enforcement
Assessment against any Owner who causes damage to Easements or the Common Improvements
or for bringing an Owner or its Lot into compliance with the provisions of the Governing
Documents, together with attorneys' fees, interest and other charges related thereto as provided
in this Declaration. In the event that the Association undertakes to provide materials or services
which benefit an Owner, then such Owner in accepting such materials or services, agrees that the
costs thereof shall be an Enforcement Assessment. The Board shall have the authority to adopt a
reasonable schedule of Enforcement Assessments for any violation of the Governing Documents.
If, after notice and a hearing which satisfies the requirements of this Declaration and the Bylaws,
an Owner fails to cure or continues such violation, the Association may impose an additional fine
each time the violation is repeated, and may assess such Owner and enforce the Enforcement
Assessment as provided herein. All Enforcement Assessments shall be payable within ten (10)
days of written notice thereof from the Association.
3.6 No Offsets. All Assessments shall be payable in the amount specified by the
Assessment and no offsets against such amount shall be permitted for any reason, including,
without limitation, a claim that the Association is not properly exercising its duties and powers as
provided in this Declaration or that o Member has made or elects to make no use of the
Easements or Common Improvements.
3.7 Funds Held in Trust. The assessments collected by the Association shall be held
by the Association for and on behalf of all Owners and shall be used for the operation, care and
maintenance of the Easements and Common Improvements, administration and governance of
the Association, performance of the Association's obligations hereunder and to reimburse the
Association for the costs incurred in bringing an Owner into compliance with the Governing
Documents, as provided for in this Declaration. Upon the sale or transfer of any Lot, the
Owner's interests in said funds shall be deemed automatically transferred to the successor in
interest o f such Owner.
3.8 Late Payments. If an Owner shall fail to pay such Owner's Regular Assessments
or any other Assessments due under this Declaration, including without limitation, Special
Assessments, and Enforcement Assessments, within fifteen (15) days after the due date therefor,
then a late charge often percent (10%) of the amount of the delinquent amount due, interest
charged at the maximum rate then permitted at law commencing thirty (30) days from the date of
delinquency, and reasonable costs of collection, including attorneys' fees and costs, shall be
levied by the Association; provided, however, that upon any amendments to California Civil
Code Section 1366 or any successor statute or law, the amount of such interest rate and the late
charge shall be adjusted to comply with the provisions of any such applicable statute or law. All
amounts due from any Owner with respect to delinquent payment of its Allocable Share of
Assessments shall be a lien against the Lot, which lien shall attach to and be enforced as
provided below.
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3.9 Failure to Fix Regular Assessments. The failure by the Board to fix the Regular
Assessments hereunder before the expiration of any year, for that or the next year, shall not be
deemed either a waiver or modification in any respect of the provisions of this Declaration or a
relief of any Owner from the obligation to pay Regular Assessments or any installment thereof
for that or any subsequent year, but the Regular Assessment fixed for the preceding year shall
continue until a new Regular Assessment is fixed.
ARTICLE 4
NONPAYMENT OF ASSESSMENTS
4.1 Delinquency. The right to collect and enforce Assessments is vested in the Board
acting for and on behalf of the Association. Any Assessment provided for in this Declaration
which is not paid when due shall be delinquent on said date (the "delinquency date"). In addition
to all remedies set forth herein, the Board may levy a late charge and assess interest and other
charges with respect to such delinquent Assessment, as provided in Section 3.10 hereof. The
Association may, at its option, and without waiving the right to judicially foreclose its lien
against the delinquent Owner's Lot, pursue any available remedies, including, without limitation,
bringing an action at law against the Member personally obligated to pay the same, and/or
proceed under the power of sale contained in this Declaration against the delinquent Owner or
his successor in interest. If action is commenced, there shall be added to the amount of such
Assessment the late charge, interest, the costs of such action, and attorneys' fees incurred in
connection with such action or any other attempt to collect the delinquent Assessments; and in
the event a judgment is obtained, such judgment shall include said late charge, interest and
reasonable attorneys' fees, together with the costs of the action. Each Owner vests in the
Association or its assigns, the right and power to bring all actions at law to foreclose the lien
against the Owner's Lot for the collection of such delinquent Assessments.
4.2 Notice of Delinquency. No action shall be brought to foreclose said Assessment
lien or bring a personal action against the delinquent Owner until thirty (30) days after the date a
notice of delinquency is deposited in the United States mail, certified or registered, postage
prepaid, to all Owners of record of said Lot, and a copy thereof is recorded by the Association in
the office of the County Recorder of San Diego County as provided in Civil Code Section 1367
or any successor statute. A notice of delinquency may be filed only if the Board or its authorized
representative has sent to the delinquent Owner or Owners, not Jess than fifteen (15) days before
the recordation of such notice, a written notice of default and a demand for payment by certified
mail, which notice shall contain all of the information specified in Civil Code Section 1367 or
any successor statute, and unless such delinquency has not been cured within such 15-day period.
If the Association elects to proceed under the power of sale contained in this Declaration, then
the recording of a notice of default, as provided in Civil Code Sections 2924 et seq. shall be
deemed to satisfy all requirements for issuance of a notice of delinquency provided that it
contains the information required under Section 1367 of the Civil Code or any successor statute.
4.3 Foreclosure Sales. Said Assessment lien may be enforced by sale by the
Association after failure of the owner to make the payments specified in the notice of
delinquency within said thirty (30) day period. If notice of default, pursuant to Section 2924 of
the Civil Code has been filed then said thirty (30) day period shall be deemed included in and not
in addition to the statutory period following such filing and preceding the filing of a notice of
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sale. Each of the Owners does, by mere acceptance of a deed to or lease of an Lot grant to and
appoint the Association as trustee and as attorney in fact by special power of attorney to enforce
and foreclose the Assessment lien by private power of sale as provided in Division Third, Part 4,
Title J4, Chapter 2, Article 1, Sections 2920 et seq. of the Civil Code of the State of California
and further grants to the Association the authority and power to sell the Lot of such defaulting
Owner to satisfy such Hen. The Association shall have the further power to designate agents to
conduct the foreclosure sale under the power of sale arising under the Assessment lien and such
agents shall be entitled to such fees and costs as are permitted by law. The Association, on
behalf of the Owners, through its duly authorized agents, shall have the power to bid on the
delinquent Lot, pursuant to any foreclosure sale thereof and to acquire and hold, pay Mortgage
indebtedness secured by, lease, encumber and convey the same. If the foreclosure sale arises
because of the failure to pay any installment of an Assessment, then, whether it is pursuant to the
exercise of the power of sale contained in this Declaration or by judicial process, all of the
installments of such Assessment shall be deemed accelerated and the entire amount thereof shall
her.ome due and payable unless, as provided by law, the defaulting owner, upon timely payment
before the end of any reinstatement period, is entitled to pay only the delinquent installments.
4.4 Curing of Default. Upon the timely payment or other satisfaction of: (a) all
delinquent Assessments specified in the notice of delinquency, (b) all other Assessments which
have become due and payable with respect to the Lot as to which, such notice of delinquency was
recorded and which may be accelerated notwithstanding that the default is cured, and (c) interest,
late charges, attorneys' fees and other costs of collection pursuant to this Declaration and the
notice of delinquency which have accrued, the officers of the Association or any other persons
designated by the Board arc hereby authorized lu flic or record, as the case may be, an
appropriate release of such notice, upon payment by the defaulting Owner of a fee, to be
determined by the Association, to cover the costs of preparing and filing or recording such
release.
ARTICLE 5
DESIGN REVIEW
5.1 Appointment of Design Review Committee. The Design Review Committee
shall consist of not less than three (3) nor more than five (5) persons, as fixed from time to time
by resolution of the Board, who shall serve until their successors are appointed. The Declarant
shall initially appoint the members of the Design Review Committee. The Declarant shall retain
the right to replace the members of the Design Review Committee which it appoints until its
Class B Voting Power terminates. Notwithstanding the foregoing, the Declarant, at any time,
may give notice to the Board that it elects to no longer retain the right to appoint the members of
the Design Review Committee in which event the Board shall appoint members to those
positions on the Design Review Committee theretofore filled by the Declarant. Upon expiration
of Declarant's Class B Voting Power, the right to appoint, augment or replace its members of the
Design Review Committee shall automatically be transferred to the Board. Persons appointed by
the Board to the Design Review Committee must be Members; however, persons appointed by
Declarant to the Design Review Committee need not be Members.
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5.2 General Provisions.
(a) Procedural Rules and Fees. The Design Review Committee may
establish reasonable procedural rules and may assess a fee in coiuicUion with Us review of Plans
and Specifications. Unless any such rules are complied with and the applicable fee is paid, such
Plans and Specifications shall be deemed as not having been submitted. The Design Review
Committee may delegate its review responsibilities to one or more members of such Design
Review Committee. Upon such delegation, the approval or disapproval of Plans and
Specifications by such persons shall be equivalent to approval or disapproval by the entire
Design Review Committee.
(b) Hire Professionals. The Design Review Committee may engage the
services of architects, licensed professional engineers or other consultants to review all Plans and
Specifications for the construction of Buildings and associated Improvements to ensure that such
Plans and Specifications provide for conformance .with the requirements of the Design
Guidelines. The costs of such review shall be borne by the Owner seeking approval of its Plans
and Specifications and shall be in addition to the fee payable pursuant to Section 5.2(a) hereof.
In lieu of the foregoing, the Design Review Committee, at its discretion, may require that the
Owner's engineer certify, in writing, that the Plans and Specifications, if followed, will meet the
criteria set forth in the Design Guidelines. The Design Review Committee may not waive the
requirements of review and certification set forth in this Section.
(c) Address of Design Review Committee. The address of the Design
Review Committee shall be the address established for giving notice to the Association. Such
address shall be the place for the submittal of Plans and Specifications and the place where the
current Supplemental Design Standards shall be kept.
(d) No Change to Rights or Restrictions. The establishment of the Design
Review Committee and the procedures herein for design approval shall not be construed as
changing any rights or restrictions upon Owners to maintain, repair, alter or modify or otherwise
have control over their Lots, Improvements, and Buildings as may otherwise be specified in this
Declaration, in the Bylaws or in any Association Rules.
(e) Time for Approval. In the event the Design Review Committee fails to
approve or disapprove any Plans and Specifications within thirty (30) days after the same have
bccti duly submitted in accordance with any rules regarding such submission adopted by the
Design Review Committee, such Plans and Specifications will be deemed approved, provided
that they are in conformance with all specific provisions of this Declaration.
(f) Government Regulations. In the event there is any conflict between the
requirements or actions of the Design Review Committee or the Board and the mandatory
regulations or ordinances of any governmental entity relating to the Property, including, but not
limited to the Project Approval Documents, the government regulation or ordinance, to the
extent that such regulations and ordinances are more restrictive, shall control and the Design
Review Committee or the Board (as applicable) shall modify its requirements or actions to
conform to the government regulation or ordinance; provided, however, that if the governmental
rules or regulations are less restrictive, the provisions of this Declaration or the Design
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Guidelines or Supplemental Design Standards shall nonetheless apply. In addition, the
application by an Owner for review and approval by the Design Review Committee or the Board
of any Plans and Specifications or other submittals by such Owner shall in no way be deemed to
be satisfaction of compliance with any building permit process or other applicable statute or law,
or governmental rule or regulation or public utility requirement (hereinafter collectively referred
to as "Additional Requirements") the responsibility for which shall lie solely with the Owner;
provided, however, if the Additional Requirements are less restrictive than the provisions of this
Declaration, the provisions of this Declaration shall nonetheless apply.
5.3 Approval and Conformity of Plans. No Building or other Improvement shall be
commenced, constructed, erected, placed, planted, removed, altered, maintained or permitted to
remain on the Property, or any portion thereof, until Site Plan Submissions, and, in the event of
material modifications to the exterior design features initially approved by Declarant or by the
Design Review Committee in conjunction with the Site Plan Submissions, the Building Plans
shall have been submitted to and approved in writing by the Design Review Committee. The
reference to "exterior design features" in the previous sentence shall include the construction,
alteration, modification or improvement to areas of any Building that are not completely
enclosed or are visible from the exterior street level of the Project. Site Plan Submissions (or
Building Plans, as applicable) shall be prepared by a duly licensed architect or other person
approved by the Design Review Committee. The Board may, from time to time, adopt and
promulgate Supplemental Design Standards to be administered through the Design Review
Committee that are consistent with the Project Approvals and the Design Guidelines. The
Supplemental Design Standards may include among other things those restrictions and
limitations upon the Owners set forth below:
(a) Time Limits. Time limitations for the completion of the Improvements
for which approval is required pursuant to the Supplemental Design Standards;
(b) Building Square Footage. Notes on the Site Plan Submissions and the
Building Plans the proposed square footage for the Building being considered as well as a
tabulation of the total square footage constructed to that date within the Project;
(c) Signage. Size and design criteria (including, but not limited to, colors,
style, and materials) for all signs within the Project and for which approval is required pursuant
to Supplemental Design Standards;
(d) Site Distance Corridors. All Site Plan Submissions and Building Plans
shall conform with the Site Distance Corridors for Type I and Type II street and driveway
intersections in accordance with the City Engineering Standards, including, but not limited to,
conforming with the following:
(i) For Type 1, no structure, fence, wall, tree, shrub, sign or other
object over 30 inches above the street level may be placed or permitted to encroach within the
area identified as a Site Distance Corridor in accordance with City Standard Public Street-Design
Criteria, Section 8.B.3. The underlying property Owner shall maintain this condition.
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(ii) For Type II, no structure, fence, wall, tree, shrub, sign or other
object shall be placed or permitted on the subject property within the CalTrans comer Site
Distance Corridors. No obstructions shall impede nor conflict with the line-of-site which is
established per City Standard Public Street-Design Criteria, Section 8.B.I. The Site Line is
depicted on the tentative map for the Project and also applies to driveways. The underlying
property Owner shall maintain this condition.
(iii) The limits of these Site Distance Corridors shall be reflected on the
Site Plan Submissions and the Building Plans.
(e) Conformity to Plans. Conformity of completed Improvements to Plans
and Specifications approved by the Design Review Committee; provided, however, as to
purchasers and encumbrancers in good faith and for value, unless notice of noncompletion or
nonconformance identifying the violating Building or Lot and its Owner and specifying the
reason for the notice, executed by the Design Review Committee, shall have been filed of record
in the Office of the County Recorder of the County, and given to such Owner within one (1) year
of the expiration of the time limitation described in Section 5.3(a) above, or unless legal
proceedings shall have been instituted to enforce compliance or completion within said one
(l)year period, the completed Improvements and landscaping shall be deemed to be in
compliance with Plans and Specifications approved by the Design Review Committee and in
compliance with the Supplemental Design Standards of the Association, but only with respect to
purchasers and encumbrancers in good faith and for value; and
(f) Other Limitations and Restrictions. Such other limitations and
restrictions as the Board in its reasonable discretion shall adopt, including, without limitation, the
regulation of the following: signage, landscaping, construction, reconstruction, exterior addition,
change or alteration to or maintenance of any Building, structure, wall or fence, including,
without limitation, the nature, kind, shape, height, materials, exterior color and surface and
location of such dwelling or structure. All procedures and determinations of the Design Review
Committee shall conform to and be consistent with die Design Guidelines.
5.4 Signs. No sign or billboard of any kind shall be displayed to the public view on
any portion of the Project, except such signs as may be used by Declarant or its sales agents in
connection with the sale or leasing of the Property and signs, the design and location of which
have been previously approved by the Design Review Committee; provided, however, that an
Owner may display on its Building, a sign advertising the Building for sale or lease, or a sign
and/or logo identifying the name of the business being conducted within the Building, so long as
such sign shall conform to the Design Guidelines and any signage standards established
thereunder or under the Supplemental Design Standards established from time to time by the
Design Review Committee, and other applicable City Requirements. In addition, as set forth in
Section 5.3(c) above, all signs and billboards must conform to the signage criteria set forth in the
Supplemental Design Standards.
5.5 Nonliability for Approval of Plans. Plans and Specifications shall be approved
by the Design Review Committee as to style, exterior design, appearance and location, and are
not approved for engineering design or for compliance with zoning and building ordinances, and
by approving such Plans and Specifications neither the Design Review Committee, the members
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thereof, the Association, the Members, the Board nor Declarant assumes liability or
responsibility therefor, or for any defect in any structure constructed from such Plans And
Specifications. Nothing contained in this Article 5 shall be deemed to create any obligation or
impose any liability upon the Design Review Committee, the Association, the Board, the
Declarant or any of their respective members, employees, or agents (collectively, the
"Association Parties") concerning an Owner's compliance with the Project Approval Documents
(including the Site Plan Submission requirements), City Requirements, or any other laws,
policies, protocols, or standards, or the timeliness of an Owner's submission of Plans and
Specifications to City for final approval. The Association Parties shall not be responsible for,
and each Owner expressly indemnifies, defends, and holds harmless the Association Parties with
respect to, any delays in processing permits and approvals with City as a result of such Owner's
failure to comply with the requirements set forth in this Declaration.
5.6 Appeal. In the event Plans and Specifications submitted to the Design Review
Committee are disapproved or conditionally approved thereby, the party or parties making such
submission may appeal in writing to the Board. The written request shall be received by the
Board not more than fifteen (15) days following the final decision of the Design Review
Committee. The Board shall submit such request to the Design Review Committee for review,
whose written recommendations will be submitted to the Board. Within thirty (30) days
following receipt of the request for appeal, the Board shall render a written decision sustaining,
reversing or modifying the decision of the Design Review Committee. The failure of the Board
to render a decision within said thirty (30) day period shall be deemed as sustaining a decision of,
the Design Review Committee.
5.7 Inspection and Recording of Approval. Any member of the Design Review
Committee or any officer, director, employee or agent of the Association may at any reasonable
time enter, without being deemed guilty of trespass, any Building or Lot after notice to the
Owner in order to inspect Improvements constructed or being constructed to ascertain that such
Improvements have been or are being built in compliance with Plans and Specifications
approved by the Design Review Committee and in accordance with the Design Guidelines and
Supplemental Design Standards (or approved by the Declarant as provided in Section 5.10
below). The Design Review Committee shall cause such an inspection to be undertaken within
thirty (30) days of a request therefor from any Owner as to its Building or Lot, and if such
inspection reveals that such Improvements have been completed in compliance with this Article,
the President and the Secretary of the Association shall provide to such Owner a notice of such
approval in recordable form which, when recorded, shall be conclusive evidence of compliance
with the provisions of this Article as to the Improvements described in such recorded notice.
5.8 Reconstruction After Destruction. The reconstruction after destruction by
casualty or otherwise of any Building or Lot which is accomplished in substantial compliance
with the Project Approval Documents. Design Guidelines and Supplemental Design Standards
and which does not affect or alter any portion of the Project which is not part of the affected Lot
shall not require compliance with the provisions of this Article and so long as the restoration
conforms in style, exterior design and appearance to that preexisting the casualty. Such
reconstruction shall be conclusively deemed to be in substantial compliance with the Design
Guidelines and Supplemental Design Standards if it has submitted its Plans and Specifications
with respect thereto to the Design Committee for written confirmation of the foregoing.
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5.9 Hookup to Utilities. No Owner shall hook up any outlets or fixtures in a
Building to any Utility lines, including, without limitation, alt plumbing, water, and electrical
distribution panels, beyond the boundaries of the Lot on which the Building is located, without
the prior written consent of the Design Review Committee.
5.10 Exemptions and Amendments. All Buildings or other Improvements either
constructed by Declarant or constructed by an Owner but for which the Plans and Specifications
have been approved by Declarant pursuant to the terms of such Owner's Purchase Agreement
prior to the Owner's acquisition of its Lot or Lots (as evidenced by written notice by Declarant to
the Design Review Committee delivered with copies of the approved Plans and Specifications)
shall be exempt from the provisions of Sections 5.1 through 5.7 above. Any subsequent
modifications to such Plans and Specifications shall require the review and approval of the
Design Review Committee as provided herein. So long as Declarant owns any Lot in the
Property, the provisions of this Article 5 may not be amended or terminated without the prior
written consent of Declarant.
5.11 Re-Subdivision and Modifications to Project Approval Documents, Design
Guidelines and Maximum Lot Buildout. No Owner (other than Declarant) may seek approval
from the City for any modification or addition to the Project Approval Documents, Design
Guidelines or maximum buildable square footage per Lot without the prior written consent of the
Design Review Committee and, for so long as Declarant's Class B Voting Power exists,
Declarant, which consent may be withheld in the sole and absolute discretion of either of the
Design Review Committee or Declarant. The total square footage permitted within the Project
pursuant to the Project Approval Documents is 2,160,500 square feet of building area. The
maximum buildable square footage per Lot will be initially set by Declarant, in its sole and
absolute discretion. Such maximum buildable square footage for any Lot or Lots does not
automatically entitle an Owner to build Improvements that conform to such square footages,
which shall be subject to the satisfaction of all other development standards established for the
Project in the Project Approval Documents, including traffic generation requirements, and
approval by the City and the Design Review Committee as provided herein. The limitations of
this Section shall not apply to Declarant with respect to Lots owned by Declarant.
5.12 Estoppel Certificate. The Design Committee shall provide to any Owner an
estoppel certificate within thirty (30) days of receipt of a written request for the same, which is
accompanied by a certified as-built survey of the Lot if the Design Committee does not have an
as-buih survey in its files. Such estoppel certificate shall certify that, as of the date hereof:
(a) all Improvements made or work done on or within a Lot comply with this Declaration or
(b) such Improvements or work does not so comply, in which event the certificate shall identify
the non-complying Improvements and shall set forth the cause or causes for such non-
compliance. Any lessee, purchaser or encumbrancer in good faith for value shall be entitled to
rely on such certificate with respect to the matters set forth therein, such matters being
conclusive as between the Architectural Committee and all subsequent parties-in-interest.
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ARTICLE 6
DUTIES AND POWERS OF THE ASSOCIATION
6.1 General Dulles and Powers. In addition to the duties and powers enumerated in
its Articles and Bylaws, or elsewhere provided for herein or by law, and without limiting the
generality thereof, the Association shall have the specific duties and powers specified in this
Article.
6.2 General Duties of the Association. The Association through the Board shall
have the duty and obligation to:
(a) Enforcement of Governing Documents. Enforce the provisions of this
Declaration, the Articles, Bylaws, and Association Rules, by appropriate means and carry out the
obligations of the Association hereunder;
(b) Maintenance. Maintain, operate and otherwise manage the following:
(i) Upon completion of any Common Improvements to be constructed
thereon pursuant to the Project Approvals, all Easements and all Common Improvements (except
for any portion thereof to be maintained by a Financing District);
(ii) All personal property which the Association controls or in which
the Association holds an interest, subject to the terms of any instrument transferring such interest
to the Association; and
(iii) All property, real or personal, which the Association is obligated to
repair or Maintain pursuant to this Declaration including, without limitation, the Article of this
Declaration entitled "Repair and Maintenance."
(c) Property Taxes. Pay any taxes and other charges assessed to or payable
by the Association; and
(d) Insurance. Contract for casualty, liability and other insurance on behalf
of the Association, its officers and the Board.
6.3 General Powers of the Association. The Association, through the Board, shall
have the power, but not the obligation to:
(a) Management of Association. Employ a manager or other persons and
contract with independent contractors or managing agents to perform all or any part of the duties
and responsibilities of the Association; provided that all such contracts shall be made on
commercially reasonable "arms-length" terms and conditions and the Board shall have the right
to terminate or renegotiate the contract of any person or organization engaged by Declarant to
perform management or maintenance duties within three (3) months after Declarant's Class B
Membership has been converted to Class A Membership as provided in this Declaration. The
Board shall also have the power to enter into maintenance or subsidy agreements with Declarant
concerning the maintenance of the Common Areas or the reduction of the Assessments.
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(b) Borrow Funds. Borrow money as may be needed in connection with the
discharge by the Association of its powers and duties upon obtaining the approval of a majority
of the Voting Power of the Association;
(c) Working Capital Account. Establish and maintain a working capital and
contingency fund in an amount to be determined by the Board to pay unforeseen costs and
expenses. Such contribution shall be a Common Expense and shall be collected as part of the
Regular Assessments. Said fund shall be used by the Board as it deems fit to carry out the
objectives and purposes of the Association. In no fiscal year shall that portion of the Regular
Assessment allocable to the creation or replenishment of such fund exceed ten percent (10%) of
the total Regular Assessment;
(d) Cure Defaults. Reinstate and cure defaults in obligations secured by an
Lot if failure to cure such default might cause any lien for Assessments to be extinguished.
(e) Incur Expenses. Incur capital and non-capital costs and expenses as
otherwise contemplated in this Declaration, including, without limitation, with respect to the
maintenance of all Common Improvements and otherwise incur Common Expenses in
accordance with the terms of this Declaration; and
(f) Maintenance and Subsidy Agreements. Enter into maintenance and
subsidy agreements with Declarant to provide for the subsidy by Declarant of Regular
Assessments or the performance of maintenance of any portion of the Easements or Common
Improvements by Declarant in lieu of the Association.
6.4 General Limitations on the Power of the Board. The powers of the Board shall
be subject to the limitations and restrictions expressly enumerated herein, in the Articles and
Bylaws. However, unless expressly so limited or restricted, the Board shall have and may
exercise all of the powers not prohibited the directors of a California nonprofit mutual benefit
corporation as provided by law.
6.5 Association Rules. The Board shall also have the power to adopt, amend, and
repeal such rules and regulations as it deems reasonable (the "Association Rules") which may
include the establishment of a system of fines and penalties enforceable as Enforcement
Assessments, all as provided in the Bylaws. No decision resulting in a fine or penalty shall be
reached before providing the recipient with notice and hearing satisfying the minimum
requirements of Section 7341 of the Corporations Code of California. The Association Rules
shall govern such matters in furtherance of the purposes of the Association, including, without
limitation, the use of the Common Area; provided, however, that the Association Rules may not
discriminate among Owners, and shall not be inconsistent with this Declaration, the Articles or
Bylaws. A copy of the Association Rules as they may from time to time be adopted, amended or
repealed or a notice selling forth the adoption, amendment or repeal of specific portions of the
Association Rules shall be delivered to each Owner in the same manner established in this
Declaration for the delivery of notices. Upon completion of the notice requirements, said
Association Rules shall have the same force and effect as if they were set forth in and were part
of this Declaration and shall be binding on the Owners and their successors in interest whether or
not actually received thereby. The Association Rules, as adopted, amended or repealed, shall be
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available at the principal office of the Association to each Owner and Mortgagee upon request.
In the event of any conflict between any such Association Rules and any other provisions of this
Declaration, or the Articles or Bylaws, the provisions of the Association Rules shall be deemed
to be superseded by the provisions of this Declaration, the Articles or the Bylaws to the extent of
any such conflict.
6.6 Delegation of Powers. The Association shall have the right, according to law, to
delegate to committees, officers, employees or agents any of its duties and powers under this
Declaration, the Articles and Bylaws; provided, however, no such delegation to a professional
management company, the Design Review Committee or otherwise shall relieve the Association
of its obligation to perform such delegated duty.
6.7 Right of Entry. The Association or any person authorized by the Association,
may enter any Lot or Building as necessary to repair or Maintain the Easements or Common
Improvements so as not to deprive other Owners of the proper use thereof. Such entry shall be
made with as liule inconvenience to the Owners as practicable, and any damage caused thereby
shall be repaired by the Association unless covered by insurance carried by the Owner.
6.8 Personal Liability; Indemnification. No member of the Board, or any
committee of the Association, or any officer of the Association, or any manager or Declarant, or
any agent of Declarant, shall be personally liable to any Owner, or any other party, including the
Association, for damage, loss or prejudice suffered or claimed on account of any act, omission,
error, negligence of any such Person if such Person has, on the basis of such information as may
be possessed by such Person or it, acted in good faith without willful or intentional misconduct.
Notwithstanding the foregoing, nothing contained in this Section is intended to exculpate any of
the foregoing persons from liability that may arise by contract, such as any liability incurred by
any professional retained by the Association or a committee of the Association to provide
services to the Association or such committee. In addition to the foregoing, as more particularly
specified in California Civil Code Section 1365.7 or any successor statute or law, any person
who suffers bodily injury, including, hut not limited to, emotional distress or wrongful death as a
result of the tortious act or omission of a member of the Board who, at the time of the act or
omission, was a "volunteer" as defined in California Civil Code Section 1365.7 or any successor
statute or law, shall not recover damages from such Board member, if such Board member
committed the act or omission within the scope of his or her Association duties, while acting in
good faith and without acting in a willful, wanton or grossly negligent manner, provided that all
of the requirements of California Civil Code Section 1365.7 or any successor statute or law, have
been satisfied. The members of the Board shall be indemnified against certain claims as set forth
in Article 12 of the Bylaws.
6.9 Estoppel Certificate. The Board (or its designee), on not less man twenty (20)
days prior written request, shall execute, acknowledge and deliver to the party making such
request a statement in writing stating whether or not to the knowledge of the Association, a
particular Owner is in default as to such Owner's Lot under the provision of this Declaration and
further stating the dates which installments of Regular Assessments have been paid as to such
Lot or if any Assessments are then due and outstanding with respect to such Lot. Any such
certificate may be relied on by any prospective purchaser of the Lot, but reliance on such
certificate may not extend to any default not involving a payment of Assessments of which the
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signer had no actual knowledge. A reasonable charge may be made by Board for the issuance of
these certificates.
ARTICLE 7
DEVELOPMENT OF PROPERTY
7.1 Initial Development and Construction of Common Improvements. Declarant
shall be responsible for initially developing and improving the Common Improvements in
accordance with the Project Approval Documents. Declarant shall either transfer the Common
Improvements and Easements to the Association upon the completion of the Common
Improvements thereon or may complete such Common Improvements after such conveyance.
After such completion, if any Common Improvements are damaged or altered by an Owner in
the course of such Owner constructing Improvements, then such Owner shall promptly and
completely repair and restore such Common Improvements to their previously completed
condition.
7.2 Subsequent Development and Operation in Accordance with Project
Approval Documents. Pursuant to the Project Approval Documents and the City Requirements,
the Project may become responsible for the implementation of environmental or other programs.
All such obligations shall be the responsibility of the Association and the Association may fund
costs and expenses incurred with respect thereto as Common Expenses through Regular
Assessments.
7.3 Conformance By Owners to Requirements. Each Owner who undertakes the
construction of any Improvements shall comply with the requirements of the Project Approval
Documents, the Design Guidelines, and the Supplemental Design Standards to the extent
applicable to a Building or the Lot on which it is located. All Improvements undertaken to be
constructed by an Owner shall be diligently completed by such Owner in conformance with the
Supplemental Design Standards. Each Owner shall among other items, provide for and construct
on its l.nt whatever storm water discharger water quality facilities are required by the Governing
Documents.
(a) Storm Water Pollution Prevention Plan. In addition to the obligation
that each Owner comply with the requirements noted above, each Owner shall, with respect to its
Lot, comply with and be responsible for implementing Condition Number 34 of the Conditions
of Approval, relating to a Storm Water Pollution Prevention Plan, which Condition Number 34
provides as follows:
3A. Prior to the issuance of grading permit or building permit,
whichever occurs first, Developer shall submit for City approval a "Storm
Water Pollution Prevention Plan (SWPPP)." The SWPPP shall be in
compliance wiih current requirements and provisions established by the
San Diego Region of the California Regional Water Quality Control Board
and City of Carlsbad Requirements. The SWPPP shall address measures
to reduce to the maximum extent practicable storm water pollutant runoff
during construction of the project. At a minimum, the SWPPP shall:
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a. include all content as established by the California
Regional Water Quality Control Board requirements;
b. include the receipt of "Notice of Intent" issued by Uic
California Regional Water Quality Control Board;
c. recommend source control and treatment control Best
Management Practices (BMPs) that will be implemented with this
project to avoid contact or filter said pollutants from storm water to
the maximum extent practicable before discharging to City right-
of-way or natural drainage course; and
d. establish specific procedures for handling spills and routine
clean up. Special considerations and effort shall be applied to
employee education on the proper procedures for handling clean
up and disposal of pollutants.
(b) Storm Water Management Plan. In addition to the obligation that each
Owner comply with requiieiiieius noted above, each Owner shall, with respect to its Lot, comply
with and be responsible for implementing Condition Number 35 of the Conditions of Approval,
relating to a Storm Water Management Plan, which Condition Number 35 provides as follows:
35. Prior to the issuance of grading permit or building permit,
whichever occurs first, Developer shall submit for City approval a "Storm
Water Management Plan (SWMP)." The SWMP shall demonstrate
compliance with the City of Carlsbad Standard Urban Stormwater
Mitigation Plan (SUSMP), Order 2001-01 issued by the San Diego Region
of the California Regional Water Quality Control Board and City of
Carlsbad Municipal Code. The SWMP shall address measures to avoid
contact or filter said pollutants from storm water, to the maximum extent
practicable, for the post-construction stage of the project. At a minimum,
the SWMP shall:
a. identify existing and post-development on-stte pollutants-
of-concem;
b. identify the hydrologic unit this project contributes to and
impaired water bodies that could be impacted by this project;
c. recommend source controls and treatment controls that will
be implemented with this project to avoid contact or filter said
pollutants from storm water to the maximum exlait practicable
before discharging to City right-of-way;
d. establish specific procedures for handling spills and routine
clean up. Special considerations and effort shall be applied to
resident education on the proper procedures for handling clean up
and disposal of pollutants;
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e. ensure long-term maintenance of all post construct BMPs
in perpetuity;
f. identify how post-development runoff" rates and velocities
from the site will not exceed the pre-development runoff rates and
velocities to the maximum extent practicable; and
g. provide calculations certifying numeric sizing criteria is
satisfied.
7.4 Coordination with Declarant Concerning Improvement Credits. Pursuant to
the Project Approval Documents or City policies or ordinances, the Declarant is entitled to
receive the Potential Fee Credits from the City or school district for certain fees and charges
which would otherwise be payable by Owners proposing to develop their Lots and any Buildings
thereon. The Owners (who are not otherwise exempt from the payment of such fees) are
icquijcd to purchase the Potential Fee Credits from Declarant prior to otherwise paying any such
fees or charges to the City. Pursuant to separate agreements and assignments to be entered into
between Declarant and the Owners (who are not otherwise exempt from the payment of such
fees), in a form acceptable to the City, Declarant shall transfer Fee Credits to Owners. In order
to facilitate such transfers, the Owners shall comply with any procedures agreed to with
Declarant in its Purchase Agreement for such Owner's acquisition of its Lot.
7.5 Cooperation in the Formation and Implementation of the Financing
Districts. By accepting a deed for the conveyance of a Lot, each Owner agrees to reasonably
cooperate with Declarant in conjunction with the formation and implementation of one or more
Financing Districts for the purpose of maintaining those facilities described further in Exhibit D
attached hereto or such other facilities within the Project determined by Declarant in its sole
discretion based on the requirements of the Project Approval Documents to be included in a
Financing District. If any Financing District is formed subsequent to the recordation of this
Declaration, each Owner agrees to have the Financing District imposed upon the Property ond
shall cooperate with Declarant as necessary in its efforts to impose the Financing District,
including, without limitation, voting in favor of the formation thereof.in the manner, at the times,
and encompassing such areas of the Property as determined by Declarant in its sole discretion.
Without limiting the generality of the foregoing, no Owner shall file any written or oral protest
or opposition of any kind to the formation of any Financing District or the levying of liens,
assessments, taxes, special taxes, exactions, fees and/or charges (collectively "Impositions")
through any Financing District, and each Owner shall consent to, or, if an election is called, cast
its vote in favor of any Financing District and the levying of Impositions by the Financing
District. If any Financing District (or any other new assessment district imposing Impositions
against the Property) is formed, each Owner shall pay any Impositions made in connection
therewith in accordance with the terms of this Section and as provided by law. No Owner shall
take any action that would in any way interfere with the operation of any Financing District or
decisions made or actions taken by Declarant with respect to any Financing District or the bond
financing relating thereto, including, without limitation, the timing of commencement of
Impositions, the amount of Impositions, the spreading of Impositions and the use of the
Impositions collected by any Financing District. To the extent any Owner of record of the
Property has the right to protest the formation of any Financing District, those rights shall be
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Declaration of CC&Rs
25
held solely by Declarant. Upon the request of the Declarant, so long as Declarant owns any
portion of the Project, each Owner shall grant Declarant its proxy to vote its interest as a
landowner in any election involving any Financing District; provided, however, that Declarant
may not transfer such proxy rights lo any party that is not the Declarant hereunder through an
assignment of Declarant's rights. Each Owner agrees to grant such easements as may be
required by the City in order to facilitate access to Improvements to be maintained by any
Financing District. The Association shall also have the right to convey (through easement,
license or other transfers) any portion of the Easements or Common Improvements to a
Financing District in the City to facilitate the maintenance of such areas. Notwithstanding any
other provision of this Declaration, by accepting a deed for the conveyance of a Lot, each Owner
agrees that in the event that a Financing District is not approved by the City for the maintenance
of the Financing District Improvements, such improvements shall be maintained by the
Association as Common Improvements.
7.6 Notice of Airport in Vicinity. The Project is presently located in the vicinity of
an airport, the McClellan-Palomar Airport, within what is known as an "airport influence area."
In addition, most of the Project is within what is known as the "flight activity zone" for the
McClellan-Palomar Airport, and portions of the Project are within what is known as the "runway
protection zone" for the McClellan-Palomar Airport. The portions of the Project within the
flight activity zone are depicted on Exhibit D attached hereto and incorporated herein. For these
reasons, the Project may be subject to some of the annoyances or inconveniences associated with
proximity to airport operations (for example: over-flight noise, vibration, or odors). Individual
sensitivities to those annoyances can vary from person to person. Areas within each of the flight
activity zone and the runway protection zone have limitations on their use as mure fully sel forth
in the Project Approval Documents. Each Owner may wish to consider what airport annoyances,
if any, are associated with the Project before the Owner completes its purchase and determine
whether they are acceptable to the Owner. By accepting a deed for the conveyance of a Lot,
each Owner acknowledges it is aware of the airport influence area, flight activity zone, and
runway protection zone applicable to the Project, has considered its impact on the Owner's use
and occupancy of any Building on a Lot, and proceeded notwithstanding such airport influence
area, flight activity zone, and runway protection zone.
ARTICLE 8
REPAIR AND MAINTENANCE
8.1 Repair and Maintenance by Association. The Association shall have the duty
in such manner and at such times as the Board may prescribe to Maintain all portions of the
Easements and Common Improvements owned by the Association not maintained by a Financing
District providing any and all necessary maintenance and repair to, and replacement as needed,
including, but not limited to, Common Improvements (including capital improvements), except
to the extent otherwise provided in this Declaration; providing any and all necessary
maintenance of, and repair and replace as needed, all landscaping within Common Improvement
and Easement Areas, following the initial installation thereof, keeping all unimproved portions of
the Easement and Common Improvement areas mowed and weeded and clear of all rubbish,
trash, and debris, and in a neat and sightly condition; maintaining the Easements and Common
Improvements in a clean and safe condition, including the paving and repairing or surfacing and
resurfacing of such areas when necessary with the type of material originally installed therein, or
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such substitute therefor as shall in all respects be equal thereto in quality, appearance, and
durability; the removal of debris and waste materials and the washing or sweeping of such paved
areas as required; and the painting and repainting of striping, markers, and directional signs as
required; maintaining all other areas, facilities, equipment, services, or aesthetic components or
whatsoever nature as may from time to time be requested by the vote of two-thirds (2/3) of the
voting power of the Members; and providing any and all necessary maintenance to, and repair
and/or replacement of, any facilities, improvements, structures, equipment other than those listed
which the Association deems necessary for the purpose of enhancing and protecting the value,
desirability, and attractiveness of the Project. The Association shall pay the costs of any such
Maintenance pursuant to this Section out of the funds collected from Assessments, except as
otherwise herein specified as payable by the Owners other than by Assessments.
8.2 Maintenance by Financing District. The City, through one or more Financing
Districts, may maintain portions of the Easements or Common Improvements. Neither Declarant
nor the Association shall have control over the maintenance to be completed by a Financing
District.
8.3 Repair and Maintenance by Owner. Each Owner shall Maintain its Lot anH all
of the Improvements thereon (including exterior surfaces) except for any Common
Improvements or Financing District Improvements on such Lot and perform all repairs,
replacements and restorations to such Improvements as may be reasonably necessary from time
to time. Such activities shall be consistent with the Project Approval Documents, Design
Guidelines, Supplemental Design Standards, and any conditions imposed by the Design Review
Oommittee in connection with its approval of the subject Plans and Specifications.
8.4 Right of Association to Maintain and Install. In the event that an Owner fails
lo accomplish any maintenance, repair, replacement or reconstruction required by this Section,
the Association may, but shall not be obligated to, cause the necessary work to be accomplished
as hereinafter set forth.
(a) Notice of Deficiency. Upon finding by the Board of a deficiency in a Lot
or Building, the Board shall give notice of deficiency to the Owner, which shall briefly describe
the deficiency and set a date for the cure thereof. If the violating Owner submits a written
request to the Board for a hearing within fifteen (15) days after the mailing of such deficiency
notice, the Board shall set a date for such hearing before the Board or a committee selected by
the Board for such purpose. The Board may delegate its powers under this subsection to a duly
appointed committee of the Associations.
(b) Hearing. Such hearing shall be held not less than ten (1U) nor more than
thirty (30) days from the date of said request for hearing. Such hearing shall be conducted
according to such reasonable rules and procedures as the Board shall adopt which shall provide
the Owner with the right to present oral and written evidence and to confront and cross-examine
any person offering at such hearing evidence adverse to such Owner. If the Board or any such
committee renders a decision against the Owner, it shall set another date by which the deficiency
is to be corrected by the Owner. A decision of any such committee may be appealed to the
Board, but a decision of the Board shall be final.
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(c) Continued Deficiency. If the deficiency continues to exist after the time
limitation set forth in the deficiency notice or, in the event a hearing is held, the date imposed by
a final decision of the Board or any such committee, the Board or such committee may cause the
curative work to be accomplished. In the event the Board or such committee: elects to cause the
curative work to be accomplished, it shall give written notice of such election to the violating
Owner and the following shall apply:
(i) Owner shall have no more than ten (10) days following the receipt
thereby of said written notice of election in which to select a day or days upon which such
curative work shall be accomplished; and
(ii) The date which said Owner selects shall be not less than ten (10)
days nor more than thirty (30) days following the last day of the ten (10) day period specified in
such notice of election. If such Owner does not select such day or days within the ten (10) day
period specified in such notice of election, the Board or such committee may select a day or days
upon which such work may be accomplished which shall be not less than twenty-five (25) nor
more than fifty-five (55) days from the last day of the ten (10) day period specified in such notice
of election; and unless the Owner and the Board otherwise agree, such curative work shall take
place only during daylight hours on any day, Monday through Friday, excluding holidays.
(d) Payment or Cure by Association. If the Association pays for all or any
portion of such curative work which has been determined to be the responsibility of an Owner,
such amount shall be a Enforcement Assessment to the affected Owner and may be made a lien
against its Lot. If the Association determines that any curative work which may be the
responsibility of an Owner must be accomplished prior to the time when a determination as to
such responsibility and the curative work itself may be made pursuant to this Section, the
Association may have the work performed prior to the commencement or completion of the
procedures of this Section. In that event, the sole determination remaining to be made pursuant
to the procedures of this Section shall be the responsibility for the cost of effecting such curative
work.
8.5 Right of Entry. The Association shall have the right to enter upon any Lot and
into any Building in connection with any exterior maintenance, repair or construction in the
exercise of the powers and duties of the Association. Where such entry is not because of an
emergency, the Association shall give reasonable prior written notice to the .Owner.
8.6 Maintenance of Public Utilities. Nothing contained herein shall require or
obligate the Association to maintain, replace or restore the underground facilities of public
utilities which are located within easements in the Common Area owned by such public Utilities.
However, the Association may take such steps as are necessary or convenient to ensure that such
facilities are properly maintained, replaced or restored by such public utilities.
8.7 Maintenance by City. In the event the Association fails to maintain the
Easements and/or the Common Improvements as provided herein, the City shall have the right,
but not the duty, to perform the necessary maintenance. If the City elects to perform such
maintenance, the City shall give written notice to the Association, with a copy thereof to the
Owners, setting forth with particularity the maintenance which the City finds to be required and
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requesting the same be carried out by the Association within a period of thirty (30) days from the
giving of such notice. In the event that the Association fails to carry out such maintenance of the
Easements and/or the Common Improvements within the period specified by the City's notice,
the City shall be entitled to cause such work to be completed and shall be entitled to
reimbursement with respect thereto from the Owners as provided herein.
(a) Payment of City Invoice. In the event the City has performed the
necessary maintenance to either the Easements and/or the Common Improvements, the City shall
submit a written invoice to the Association for all costs incurred by the City to perform such
maintenance. The City shall provide a copy of such invoice to each Owner, together with a
statement that if the Association fails to pay such invoice in full within the time specified, the
City will pursue collection against the Owners pursuant to the provisions of this Section.
(b) Failure to Pay City Invoice. Said invoice shall be due and payable by
the Association within twenty (20) days of receipt by the Association. If the Association shall
fail to pay such invoice in full within the period specified, payment shall be deemed delinquent
and shall be subject to a late charge in an amount equal to six percent (6%) of the amount of the
invoice. Thereafter the City may pursue collection from the Association by means of any
remedies available at law or in equity. Without limiting the generality of the foregoing, in
addition to all other rights and remedies available to the City, the City may levy a special
assessment against the Owners of each Lot for an equal pro rata share of the invoice, plus the late
charge. Such special assessment shall constitute a charge on the land and shall be a continuing
lien upon each Lot against which the special assessment is levied. Each Owner hereby vests the
City with the right and power tn levy such special assessment, to impose a lien upon their
respective Lot and to bring all legal actions and/or to pursue lien foreclosure proceedings against
Owner and their respective Lot for purposes of collecting such special assessment in accordance
with the procedures set forth in this Declaration.
ARTICLE 9
INSURANCE AND INDEMNIFICATION
9.1 Association. The Association, through the Board, shall obtain and maintain in
effect the following types of insurance:
(a) Fire and Extended Coverage. Fire and extended coverage insurance on
all Common Improvements, the amount of such insurance to be not less than ninety percent
(90%) of the aggregate full insurable value, meaning actual replacement value, exclusive of the
cost of excavations, foundations and footings. Such insurance shall insure the Association.
(b) Liability. Comprehensive general liability insurance including coverage
for contractual liability, completed operations liability, contingent independent contractor's
liability, personal injury liability, and owned or hired or non-owned vehicles, insuring against
liability for bodily injury, death and property damage arising from the activities of the
Association or its agents, representatives or employees, or with respect to any real or personal
property owned, used or controlled by the Association and the performance of the Association's
obligations as provided in this Declaration. The coverage limits and deductibles of all such
policies shall be subject to the discretion of the Board, and the Board shall not be obligated to
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Declaration oCCC&Rs
32328.1/I068S7S.8 29
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obtain particular coverage if, in the opinion of the Board, the coverage is prohibitively expensive
or the premiums do not bear a reasonable relationship to the risks insured against. The liability
insurance shall, if economically feasible, name as separately protected insureds the Declarant,
the Association, the Board, and the Design Review Committee, and their representatives,
members and employees, with respect to any liability arising out of the construction,
maintenance, use and the construction of any Improvements on any part of the Easements.
(c) Workers Compensation Insurance. Workers compensation insurance to
the extent necessary to comply with any applicable laws.
(d) Fidelity Insurance. A fidelity bond in the penal amount of not less than
the total amount of Regular Assessments collected during the previous calendar year (or, in the
first and second years, the amount budgeted therefor), naming the members of the Board and
such other persons as may be designated by the Board as principals, and the Association as
obligee.
(e) Other Insurance. Such other insurance, including business interruption
insurance, directors, and officers' liability insurance, indemnity and other bonds as the Board
shall deem necessary or expedient to carry out the Association's functions as set forth in this
Declaration, the Articles and Bylaws. The Board's discretion with respect to types of insurance
and coverage limits and deductibles shall be liberally construed, it being the intent of this
Declaration that the Board from time to time seek the advice of a reputable risk manager.
9.2 Owner's Insurance.
(a) Owner's Liability Insurance. Each Owner shall procure and maintain
(or cause to be procured and maintained) in full force and effect throughout the term of this
Declaration commercial general liability insurance against claims for personal injury, death or
property damage occurring upon, on or about such Owner's Lot or resulting from such Owner's
performance of its maintenance obligations hereunder, with combined single limits of at least
Three Million Dollars ($3,000,000) per occurrence and Five Million Dollars ($5,000,000)
general aggregate, which insurance shall include contractual liability coverage covering the
insured's indemnity obligations hereunder. The limits of coverage for the foregoing insurance
are subject to increase from time to time by the Association based upon customary level of
insurance then being maintained by owners or developers of similar Projects. In no event shall
the limits of any coverage maintained by any Owner pursuant to this Declaration be considered
as limiting such Owner's liability under this Declaration.
(b) Extended Coverage Insurance. At all times during the term of this
Declaration, each Owner shall keep (or cause to be kept) all Improvements on its Lot insured
against loss or damage by fire and other perils and events as may be insured against under a fire
and extended (all risk) coverage policy tor the rail replacement cost of the Improvements, with a
deductible no greater than ten percent (10%) of replacement costs. The full replacement cost
shall mean the cost to replace such Improvements, without deduction for depreciation or wear
and tear, including costs attributable to improvements or upgrades required by changes in laws
and regulations governing zoning, public access and accommodation, work place conditions,
public health or safety or other matters, and shall include to the extent reasonably attainable a
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S760
reasonable sum for architectural, engineering, legal, administrative and supervisory fees
connected with the restoration or replacement.
(c) General Requirements. Policies of insurance required under ihis
Section 9.2 shall name the Association, the Association's property manager, and so long as
Declarant owns Class B Voting Rights, the Declarant, as an additional insured as their respective
interests may appear. Each Owner shall provide to the Association certification upon written
request, evidencing the fact that the insurance required hereby has been obtained. All policies of
insurance provided for in this Section 9.2 shall: (i) with respect to CGL be an occurrence basis
policy (or policies); (ii) be issued by an insurance company having a General Poiicyholders
Rating of A- or better and a financial size of "VII" or better, as set forth in the most current issue
of Best's Rating Guide, or equivalent rating and licensed to do business in California; (iii) be
primary insurance as to all claims thereunder and provide that any insurance carried by the
Association is excess and noncontributing with any insurance required of the Owner, and
(iv) with respect to the liability insurance described in Section 9.2(a), contain a cross-liability
endorsement or severability of interest clause acceptable to the Association.
(d) Waiver of Subrogation. Each Owner on its own behalf and, to the extent
legally possible for it to do so, on behalf of its insurer, releases the Association and the
Declarant, the other Owners, and their officers, employees, agents and representatives, and
hereby waives any claims on account of loss or damage occasioned to such waiving party or its
property or the property of others under its control, to the extent that such loss or damage is
insured against under any fire and extended coverage insurance policy which either may have in
force at the time of such loss or is required by this Article, irrespective of any negligence on the
part of any other Person which may have contributed to or caused such loss. If the waiver of
subrogation is not effective against any insurer, each Owner, the Association and the Declarant
covenants that it will attempt to obtain for the benefit of the such other Persons an express
waiver of any right of subrogation which the insurer of such Owner may acquire against such
other Persons by virtue of the payment of any such loss covered by such insurance. If any
Owner is by law, statute or governmental regulation or refusal of its insurance company is unable
to obtain a waiver of the right of subrogation for the benefit of such other Persons, then, during
any period of time when such waiver is unobtainable, said Owner shall be deemed not to have
released any subrogated claim of its insurance carrier against such other persons, and during the
same period of time the other persons shall be deemed not to have released the Owner who has
been unable to obtain such waiver from any claims they or their insurance carriers may assert
which otherwise would have been released pursuant to this Section. In the event that any Owner
is unable to obtain such waiver of the right of subrogation for the benefit of the other Owners,
such Owner shall, within thirty (30) days of receiving notice of such inability, give the other
Owners written notice of such inability.
(e) Blanket Insurance. Any insurance required to be carried pursuant to this
Article may be carried under a policy or policies covering other liabilities and locations of an
Owner; provided, however, that such policy or policies apply to the Lots required to be insured
by this Section in an amount not less than the amount of insurance required to be carried by such
Owner with respect thereto, pursuant to this Section.
Brcssi Ranch Corp. Center 2/10/05
Declaration of CC&Ks
32328-1/1968579.8 31
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(f) Self-Insurance. Notwithstanding anything in this Section 9.2 to the
contrary, an Owner may self insure with respect to the property insurance set forth in this
Section 9.2 so long as (i) such Owner delivers to the Association on an annual basis an audited
financial statement, or other evidence satistactory to the Association, that such Owner has a net
worth of at least One Hundred Million Dollars ($100,000,000); and (ii) such Owner, to the fullest
extent allowable under the law, indemnifies, protects, defends and holds harmless the
Association and Declarant from and against any and all claims, actions, demands, liabilities,
damages and costs (including reasonable attorneys' fees) that would have been covered by the
insurance replaced by the self-insurance. If an Owner so elects to become a self insurer, such
Owner shall deliver to the Association notice in writing setting forth the required coverage which
it is self insuring and setting forth the amount, limits, and scope of such self insurance (which
will not be less than that required herein),
9.3 Waiver of Subrogation. Every policy of insurance obtained by the Association
shnll contain an express waiver, if available, nf any and all rights of subrogation against
Declarant, Declarant's agents and representatives, any person, firm or corporation affiliated with
Declarant in the development of the Project, the Board, the Design Review Committee, and their
representatives, members and employees.
9.4 Payment of Proceeds. With respect to insurance proceeds paid in connection
with a loss of part or all of the Common Improvements, the Association shall be deemed trustee
of the interests of all Owners in any insurance proceeds paid to it under any such policies, and
shall have full power to receive and to receipt for their interest in such proceeds and to deal
therewith.
9.5 Indemnification. Each Owner shall indemnify, defend, and save the other
Owners, the Declarant and the Association and the officers, partners, employees, agents,
representatives and members of each harmless from and against any and all demands, liabilities,
damages, expenses, causes of action, suits, claims, and judgments, including reasonable
attorneys* fees, arising out of or in anyway connected with (i) the use of an easement hereby
granted, (ii) injury or death to person or damage to property that occurs on the indemnifying
Owner's Lot, and (iii) the indemnifying Owner's performance of its maintenance obligations
hereunder. An Owner shall not be entitled to such indemnification for: (i) any damage caused to
such Owner by reason of its negligence, recklessness or willful misconduct and (ii) any and all
demands, liabilities, damages, expenses, causes of action, suits, claims, and judgments arising
from any matter covered by the indemnitee's indemnity obligations under this Declaration.
ARTICLE 10
DESTRUCTION OF IMPROVEMENTS
10.1 Reconstruction of Common Improvements. In the event of a partial or total
destruction of any Common Improvements, or of any other property or Improvements owned,
maintained, or used by the Association for the common benefit of Owners, it shall be the duty of
the Association to restore and repair the same to their former condition as promptly as is
practicable and in a lawful and workmanlike manner. The proceeds of any insurance maintained
pursuant hereto shall be used for such purpose, subject to the prior rights of Mortgagees whose
interests may be protected by said policies. In the event that the amount available from the
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Declaration ofCC&Rs
J232S-J/I968S79.8 32
8762
proceeds of such insurance policies for such restoration and repair shall be at least eighty-five
percent (85%) of the estimated cost of restoration and repair, a Special Assessment shall.be
levied by the Association to provide the necessary funds for such reconstruction and repair, over
and above the amount of any insurance proceeds available for such purpose, and such
Assessment may be enforced under the lien provisions contained in this Declaration. The amount
and due date of the Assessment shall be determined by the Board. In the event that the amount
available from the proceeds of such insurance policies for such restoration and repair shall be
less than eighty-five percent (85%) of the estimated cost of restoration and repair, the
Improvements shall not be replaced or restored unless approved by the vote or written consent of
Members entitled to exercise sixty-seven percent (67%) of the Voting Power of the membership
of the Association, including Declarant as a Class B Member. In the event any excess insurance
proceeds remain, the Board shall retain such sums in the general funds of the Association.
Notwithstanding anything to the contrary contained in this Article 10, the distribution of any
insurance proceeds for any damage or destruction to the Common Improvements shall be subject
tn thfi prior rights of First Mortgagees.
10.2 Reconstruction of Improvements on Lots. If all or any portion of a Lot or any
Improvement on sncVi f..ot is damaged or destroyed by fire or other casualty, it shall be the duty
of the Owner of such Lot to (a) rebuild, repair or reconstruct the Lot and the Improvements
thereon in such a manner which will restore them to a condition and appearance approved by the
Design Committee and in accordance with any applicable government requirements, including,
but not iimited to, the Project Approval Documents, (b)raze and remove the damaged
Improvements, restoring the Lot to substantially its original unimproved condition, or (c) any
combination of the above, which subsection (c) shall only be available if and to Ihe extent done
in a manner satisfactory to the Design Committee. The Owner of any Lot on which damaged
Improvements are located shall be obligated to proceed with all due diligence hereunder.
ARTICLE 11
USE RESTRICTIONS
11.1 Use. The Lots and any Buildings thereon may be used for the purposes permitted
within the applicable planning area or Lot set forth in the Project Approval Documents and Site
Plan Submissions, as approved by the Design Review Committee. If required, Owners shall
implement the waste management plan approved in conjunction with the Site Plan Submissions
to the extent required by City Requirements.
11.2 Construction Activity. Every Owner (including Declarant) constructing
Improvements on the Property shall make its best efforts to control the dust arising from such
activities.
11.3 Nuisance. No noxious or offensive trade or activity shall be carried on in any Lot
or Building, or any part of the Project, nor shall anything be done which may materially interfere
with the quiet enjoyment of any of the Owners or their tenants in a Building, or which shall in
any way increase the rate of insurance or overburden the Utilities from time to time existing for
the Project. No commercial activity which is permitted in the Project pursuant to applicable
zoning ordinances or any govemmentally approved development plan or conditional use permit
Bressi Ranch Coip. Center 2/10/05
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8763
which first commenced pursuant to the sale of a Building, Lot or the lease of a Lot or Building
under which Declarant was seller or lessor shall be deemed a nuisance under this Declaration.
11.4 Temporary Structures. No structure of a temporary character, trailer, tcul,
shack, b'arn or other outbuilding shall be used on any portion of the Property (a) at any time,
either temporarily or permanently, for a purpose or use that is not consistent with the Project
Approval Documents and Site Plan Submissions, as approved by the Design Review Committee,
and (b) after completion of construction on the Lots, at any time, either temporarily or
permanently, unless approved by the Design Review Committee.
11.5 Vehicles.
(a) Except as provided in this Section, no recreational vehicle or equipment
shall hereafter be permitted to remain upon the Property unless authorized by the Board.
(b) No automobile, recreational vehicle, or equipment or commercial vehicle
or any other motorized vehicle may be dismantled, rebuilt, repaired, serviced, or repainted on the
Property unless authorized by the Board. The foregoing restriction shall not be deemed to
prevent temporary parking for loading or unloading of vehicles, or temporary overnight parking.
(c) As used in this Section, "commercial vehicle" shall be defined as a truck
of greater than three-quarter (3/4) ton capacity and any vehicle with a sign displayed on any part
thereof advertising any kind of business or on which racks, materials and/or tools are visible. The
type of motor vehicle license plate shall not be material to the foregoing definition,
(d) The Board may adopt other rules for the regulation of the admission and
parking of vehicles, including, without limitation, commercial vehicles and employee and Owner
parking within the Property, including the assessment of charges to Owners who violate or
whose invitees violate such rules. Any charges so assessed shall be Special Assessments. Such
rules adopted by the Board shall take into consideration the need for certain businesses operated
upon the Property to have parking available for customers.
11.6 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, tanks, tunnels, or mineral
excavations nr shafts he installed upon the surface of the Property or within five hundred (500)
feet below the surface of such properties. 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.
11.7 Unsightly Items. All weeds, rubbish, debris, or unsightly material or objects of
any kind shall be regularly removed from the Buildings or Lots and shall not be allowed to
accumulate thereon. All refuse containers, trash cans, woodpiles, storage areas, machinery and
equipment shall be prohibited upon the Property except in accordance with rules adopted by the
Board.
11.8 Antennas and Other Roof Structures. No television, radio, or other electronic
towers, aerial antennas or device of any type for the reception or transmission of radio or
television broadcasts or other means of communication unless the same be contained within a
Brcssi Ranch Cotp. Center 2/10/05
Declaration of CC&Rs
32328-1/1908379.8 34
8764
Building or underground conduit or appliances or installations on exterior roofs of structures
including, without limitation, air conditioning equipment, rooftop turbine ventilators, attic
ventilators or solar panels (except to the extent that limitations on the construction or use thereof
is prohibited by law) 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 Design Review
Committee (unless the same were approved by Declarant as provided in Section 5.10 hereof).
11.9 Storage and Loading Areas. No materials, supplies, equipment, parts, products,
packaging, or waste of any kind shall be stored in any area on a Lot except inside a closed
building or behind a visual barrier screening such areas to minimize visibility from neighboring
property. Location, size, and screening of storage areas outside an enclosed building must be
approved by the Design Review Committee (unless the same was approved by Declarant as
provided in Section 5.10 hereof)- Loading areas and docks shall be located and screened to
minimize visibility from the street and from neighboring property in accordance with the Design
Guidelines. Location, size, and screening of loading areas and docks must be approved by the
Design Review Committee (unless the same was approved by Declarant as provided in
Section 5.10 hereof).
11.10 Drainage. There shall be no interference with drainage over any portion of the
Property unless adequate provision is made for proper drainage and is approved by the Design
Review Committee.
11.11 Uses Resulting in Increased Insurance Premiums. In the event that any use
shall cause an increase in fire or other insurance premiums otherwise payable on insurance
procured by the Association, the party causing such increase shall be liable for payment of the
same, to the Association. The parties so charged with additional premium costs shall have the
right to contest the validity of such increase before the Board in a manner prescribed by the
Board.
11.12 Maintenance. The grounds and the exterior of all Improvements on each Lot
shall be regularly Maintained in good, sightly and well-kept order, repair and condition. Any
Owner, before undertaking any alteration or maintenance of the exterior area of an improvement
or Lot shall submit the Building Plans for such work to the Design Review Committee and
obtain its written approval prior to the commencement of any such work. In the case of exterior
painting, no such approval is required if the color and quality of the paint remains the same as
the original.
11.13 Water Wells. All Owners other than Declarant and its predecessor owner are
prohibited from drilling any water well, and the drilling of a water well shall be a prohibited use,
except by Declarant and its predecessor owner pursuant to the terms of any easement agreements
applicable within the Project.
11.14 Exemptions of Declarant. Nothing in this Article 11, or elsewhere in this
Declaration shall limit, and no Owner or the Association shall do anything to interfere with, the
right of Declarant to complete its construction activities within the Project and to market and sell
Lots within the Project. Declarant may use any Buildings owned by Declarant in the Property as
real estate sales or leasing offices. So long as Declarant owns any Lot in the Property, the
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Declaration of CC&Rs
35
8765
provisions of this Article 11 may not be amended or terminated without the prior written consent
of Declarant.
ARTICLE 12
RIGHTS OF ENJOYMENT
12.1 Right of Enjoyment Subject to the limitations and restrictions set forth in this
Declaration, every Owner shall have a nonexclusive easement for the use and enjoyment of the
Common Easements. Each Owner may permit its licensees, lessees and tenants and their
respective guests, customers, agents, employees and independent contractor to use such
easements, subject to this Declaration. The foregoing easements shall be appurtenant to and
shall pass with the Owner's interest in its Lot, subject to the terms and provision of this
Declaration including, without limitation:
(a) Restrict Access. The right of the Association to exclude Owners from
those portions of the Easements necessary or appropriate to reserve for limited access due to
health, safety, liability, or management issues, including, without limitation, excluding from
access to the Drainage and Retention Facilities.
(b) Applicable Law. Any use and enjoyment of the Easements shall be
subject to such limitations as may be imposed pursuant to the Project Approval Documents, the
City Requirements, or any other applicable federal, state, or local laws.
(c) Owner's Restrictions. The use and enjoyment of the Easements shall be
subject to such reasonable restrictions as may be imposed by the Owner upon whose property
such easements are located so long as such restrictions do not impair the use of such easements
for their intended purpose as established in Article 14.
(d) Reservations by Declarant. The right of Declarant to reserve for itself,
its successors and assigns, or the Association, the right to grant, reserve and transfer such
exclusive or non-exclusive easements as may be necessary or appropriate to: (1) perform the
obligations of the Declarant under the Project Approval Documents and comply with subsequent
City Requirements with respect to the development of the Project; (2) perform the obligations of
the Declarant or the Association under this Declaration; (3) provide for the installation,
maintenance, and repair of, and access to and from any Utilities serving the Project or any
Improvements to be maintained or operated by any Financing Districts.
12.2 Waiver of Use. No Member may exempt itself from personal liability for
Assessments duly levied by the Association, nor release the Lot or Duilding owned by it from the
liens, charges and other provisions of this Declaration, the Articles, Bylaws and Association
Rules, by waiver of the use and enjoyment of the Easements, or the abandonment of its Lot or
Building.
12.3 Access by Public Employees. Officers, agents or employees of any
governmental department or bureau shall have the right of immediate access to all portions of the
Easements for reasons of public health, safety and welfare, except where such portion of the
Easements is accessible only through a Building, in which case, permission of the applicable
Owner shall be required.
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Declaration of CC&Rs
36
8766
ARTICLE 13
EASEMENTS
13.1 Amendment to Eliminate Easements. This Declaration cannot be amended to
modify or eliminate the Easements reserved to Declarant without prior written approval of
Declarant and any attempt to do so shall have no effect. Any attempt to modify or eliminate this
Article 13 shall likewise require the prior written approval of Declarant.
13.2 Nature of Easements. Unless otherwise set forth herein, any Easement reserved
herein shall be nonexclusive.
13.3 Certain Rights and Easements Reserved to the Association.
(a) Easements. The Declarant hereby reserves, for the benefit of the
Association, an easement over, along, through and across any Easements in the Project, together
with such reasonable rights of ingress and egress for access to any such Easement on a Lot in the
Project. Without limiting the generality of the foregoing, the Easements reserved for the benefit
of the Association shall include an easement for the Maintenance of the landscaping along each
street as shown on Exhibit B ("Landscape Easement"), an easement to Maintain the Landscape
Areas as shown on Exhibit B, an easement to Maintain the Landscape Area adjacent to the pump
station on Lot 14, an easement to Maintain the storm drain, drainage and/or desiltation basins
located on each Lot as required by the Governing Documents and/or as shown on Exhibit B
("Storm Drain Easement"), an easement for the installation and Maintenance of any utilities as
required by the Governing Documents and/or as shown on Exhibit R ("1 JtUity F.asement"), and
an easement to Maintained signage as shown on Exhibit B ("Signage Easement").
(b) Perform Association Functions. Upon prior notice (except in the case of
an emergency, in which case no prior notice shall be necessary), the Association shall have and
there is hereby reserved by Declarant for the benefit of the Association and its duly authorized
agents and representatives and granted to the Association, a non-exclusive easement for ingress
and egress to the Lots, to the extent necessary for the Association to perform its obligations
under this Declaration or the other Governing Documents and to perform repairs or Maintenance
not performed by the Owner pursuant to the terms of this Declaration and to reach those areas
and places of the Project which are necessary to perform such obligations.
13.4 Certain Rights and Easements Reserved to Declarant.
(a) Utilities. Easements over the Property for the installation and
Maintenance of Utilities arc hereby reserved by Declarant, together with the right to grant and
transfer the same to the Association, Owners or otherwise; provided, however, such easements
shall not unreasonably interfere with the use and enjoyment by Owners of their Lots or
Buildings. Wherever Utilities are installed within the Project, the Owners of any Lots or
Buildings served by said Utilities shall have the right, and there is hereby reserved to Declarant,
together with the right to grant and transfer the same to the Association and/or the Owners, an
easement to the full extent necessary for the full use and enjoyment of such portion of such
Utilities which service its Lot or Building, and, subject to the limitation as to unreasonable
interference described above, to enter the Lots (but not, without said Owner's consent, the
Bressi Ranch C«p. Center II10/05
Declaration of CC&Rs
37
8767
Buildings thereon) owned by others, or to have utility companies enter such portions of the
Project owned by others, in or upon which said Utilities, or any portion thereof He, to repair,
replace and generally maintain said Utilities as and when the same may be necessary, provided
that such Owner or utility company shall promptly repair any damage to a Lot caused by such
entry as promptly as possible after completion of work thereon.
(b) Grading and Site Work. Easements over the Property for the completion
by Declarant of grading and other site work required to be completed by Declarant under the
Project Approvals and any Purchase Agreement are hereby reserved in favor of Declarant;
provided, however, that such easements shall not unreasonably interfere with the use and
enjoyment by Owners of their Lots or Building.
(c) Support; Settlement and Encroachment. There is hereby reserved to
Declarant, together with the right to grant and transfer the same to the Association and/or the
Owners, the following reciprocal easements for the purposes set forth below:
(i) An easement appurtenant to each Building which is contiguous to
another Building or Lot which Building shall be the dominant tenement and the contiguous
Building or Lot shall be the servient tenement.
(ii) An easement appurtenant to a Lot contiguous to a Building, which
Lot shall be the dominant tenement and which contiguous Building shall be the servient
tenement.
(iii) Said easements shall be for encroachments resulting from
engineering errors, errors in original construction and support and accommodation of the natural
settlement or shifting of structures; encroachment by reason of a roof or eave overhang from a
Building and for the maintenance of such roof or eave overhang by the Owner of the dominant
tenement; and encroachment of doorsteps, foundation footings, utilities and other appurtenances
of fixtures and the maintenance thereof by the owner of the dominant tenement, 'which, in the
construction of the structures upon the dominant tenement or from any reconstruction or
modifications of such structures, project beyond the external surface of the outer walls of such
structures.
(d) Drainage Easements. Every Lot in the Project shall be reciprocally
burdened and bcncfittcd by an casement for the flow of surface and subsurface waters Lluuugh
pipes, conduits and channels and the Drainage and Retention Basins, the construction of which
was by Declarant or approved by the Design Review Committee and all governmental agencies
having jurisdiction thereof, and for surface flows not confined to channels, pipes or conduits if
such flow results from grading in accordance with a grading plan prepared by Declarant or
approved by the Design Review Committee and all governmental agencies having jurisdiction
thereof.
(e) Prospective Easements. If in connection with the conveyance or lease of
any Lot, Declarant shall reserve an easement in gross conditioned upon the transfer of such
easement to the Association for the use and benefit of all Owners or designated Owners and their
Bressi Ranch Corp. Center ' 2/10/05
Declaration of CC&Rs
38
8768
tenants and invitees (including, for example, easements for the Drainage and Retention
Facilities), then:
(I) Upon transfer of such easement to the Association, the instrument
of transfer shall provide that the easement is to be made appurtenant to a designated Lot; and
(ii) The Association shall be obligated to accept the conveyance of
such easement and, thereafter, to Maintain the easement area, to the same extent as provided for
the Easements and Common Improvements in Section 8.1 hereof, and to levy Regular
Assessments for purposes of defraying the costs of such Maintenance.
ARTICLE 14
RIGHTS OF LENDERS
14.1 Filing Notice; Notices and Approvals. A Mortgagee shall not be entitled
to receive any notice which this Declaration requires the Association to deliver to Mortgagees
unless and until such Mortgagee, or its mortgage servicing contractor, has delivered to the Board
a written notice stating that such Mortgagee is the holder of a Mortgage encumbering a Lot or
Building within the Project. Such notice shall describe the interests encumbered by such
Mortgage, and shall state whether such Mortgagee is a First Mortgagee. Wherever the approval
of all or a specified percentage of First Mortgagees is required pursuant to this Declaration, it
shall be deemed to mean the vote or approval of all or a specified percentage only of those First
Mortgagees, as applicable, which have delivered such notice to the Board. Notwithstanding the
foregoing, if any right of a Mortgagee under this Declaration is conditioned on a specific, written
request to the Association, in addition to having delivered the notice provided in this Section, a
Mortgagee must also make such request, either in a separate writing delivered to the Association
or in the notice provided above in this Section, in order to be entitled to such right. Except as
provided in this Section, a Mortgagee's rights pursuant to this Declaration, including, without
limitation, the priority of the lien of Mortgages over the Hen of Assessments levied by the
Association hcrcunder shall not be affected by the failure to deliver a notice to the Board. Any
notice or request delivered to the Board by a Mortgagee shall remain effective without any
further action by such Mortgagee for so long as the facts set forth in such notice or request
remain unchanged.
14.2 Priority of Mortgage Lien. No breach of the covenants, conditions or
restrictions herein contained, or the enforcement of any lien provisions herein, shall affect,
impair, defeat or render invalid the lien or charge of any Mortgage made in good faith and for
value encumbering any interest in the project; provided, however, that upon occurrence of a
Foreclosure Event, the subsequent Owner shall be subject to future compliance with all of said
covenants, conditions and restrictions, except as otherwise provided in this Article.
14.3 During Defaults. A Mortgagee or the immediate transferee of such Mortgagee,
who acquires title through a Foreclosure Event, shall not be obligated to cure any breach of the
provisions of this Declaration which is incurable or of a type which is not practical or feasible to
cure. The determination of the Board made in good faith as to whether a breach is incurable or
not feasible to cure shall be final and binding on all Mortgagees.
Bressi Ranch Coip. Center 2/10AJ5
Declaration of CC&Rs
32328-1/1968579.8 39
S769
14.4- Resale. It is intended that any loan to facilitate the resale of any Lot or Building
after a Foreclosure Event is a loan made in good faith and for value and entitled to all of the
rights and protections afforded to other Mortgagees.
14.5 Relationship with Assessment Liens.
(a) Subordination. The lien provided for in the Article hereof entitled
"Covenant for Maintenance Assessments" for the payment of Assessments shall be subordinate
to the lien of any Mortgage which was recorded prior to the date any such Assessment becomes
due, but such subordination shall not apply to the lien of Assessments which arise subsequent to
any a Foreclosure Event pursuant to which fee title to or the leasehold estate in any portion of the
Project is transferred to the Mortgagee or any other person, whether or not the Mortgage is
deemed extinguished or merged upon transfer of such estate or interest.
(b) Non-Impairment of Mortgage Liens. If any portion of the Project
subject to a monetary lien created by any provision of this Declaration shall be subject to the lien
of a Mortgage: (1) the foreclosure of any lien created by anything set forth in this Declaration
shall not operate to affect or impair the lien of such Mortgage with respect to Assessments
becoming a lien after the date of recordation of the Mortgage; and (2) a Foreclosure Event shall
not operate to affect or impair the lien hereof, except that any persons who obtain an interest,
through any Foreclosure Event, and their successors in interest, shall take title free of the lien
hereof or any personal obligation for such charges as shall have accrued up to the time of any
Foreclosure Event, but subject to the lien hereof for all said charges that shall accrue subsequent
to the Foreclosure. F.vent or which first became a lien prior to the date of recordation of the
Mortgage.
(c) Foreclosure Purchasers. Any Mortgagee who obtains title to an interest
in the Project by reason of any of the Foreclosure Event, or any purchaser at a private or judicial
foreclosure sale, shall take title to such interest free of any liens or claims for unpaid
Assessments against such interest which accrue prior to the time such Mortgagee or purchaser
takes title to such interest, except for liens or claims for a share of such Assessments resulting
from a pro rata reallocation of such Assessments to all interests within the Project subject to such
Assessments or which first became a lien prior to the date of recordation of the Mortgage;
provided, however, that nothing in this Section shall be construed to release any Owner from its
personal obligations to pay for any Assessment levied pursuant to this Declaration.
(d) Assessment Liens. Wherever this Declaration provides that a Mortgage
shall be subordinate to Assessments which "first became a lien prior to the date of recordation of
the Mortgage" or words of like meaning, an Assessment shall be deemed to have become a lien
on the date on which a notice of delinquency was first recorded. The amount secured by such
lien shall be the entire Regular Assessment for the then current fiscal year, to the extent not
discharged as of the date of recordation of such notice (or the full amount of any Special or
Capital Improvement Assessment, if the delinquency has arisen in connection therewith) together
with any costs and interest to which the Association may be entitled as set forth in the
Declaration. Notwithstanding the foregoing, if the Mortgagee or purchaser pursuant to the
Foreclosure Event pays the delinquent installments of any such Assessments immediately upon
succeeding to title, together with any interest and costs secured by the lien, it shall be entitled to.
Bressi Ranch Coip. Center 2/10/05
Declaration of CC&Rs
J23M-1/I908379.S 40
8770
pay the installments of such Assessments first falling due after it succeeds to title, on the dates
the same would have become payable but for the filing of the notice creating the lien.
14.6 Other Rights of First Mortgagees. Any First Mortgagee or other Mortgagee, if
expressly provided in this Section, or its mortgage servicing contractor, shall, upon written
request to the Association, be entitled to:
(a) Books and Records. Inspect the books and records of the Association
during normal business hours;
(b) Financial Information. Receive the annual financial statement of the
Association one hundred twenty (120) days following the end of the Association's fiscal year;
(c) Notice of Meetings. Receive written notice of all annual and special
meetings of the Members or of the Board, and First Mortgagees shall further be entitled to
designate a representative to attend all such meetings in order to, among other things, draw
attention to violations of this Declaration which have not been corrected or made the subject of
remedial action by the Association; provided, however, nothing contained in this Section shall
give a hirst Mortgagee the right to call a meeting of the Board or of the Members for any
purpose or to vote at any meeting except as expressly provided herein;
(d) Notice of Defaults. Receive written notification from the Association of
any default in the performance of the obligations imposed by this Declaration by the Owner
whose interest in the Project is encumbered by such Mortgagee's Mortgage, which default has
not been cured within sixty (60) days after a request therefor by the Association; provided,
however, the Association shall only be obligated to provide such notice to Mortgagees who have
delivered a written request therefor to the Association specifying the interest in the Project to
which such request relates. The right to receive notice shall apply to all Mortgagees who comply
with the requirements for receiving notice.
14.7 Mortgagees Furnishing Information. Mortgagees are hereby authorized to
furnish information to the Board concerning the status of any Mortgage.
14.8 Conflicts. In the event of any conflict between any of the provisions of this
Article and any of the other provisions of this Declaration, the provisions of this Article shall
control.
14.9 Voting Power of First Mortgagees. In the event of a default by an Owner in any
payment due under the terms of any First Mnrtgnge held by a First Mortgagee or the promissory
note secured thereby, the First Mortgagee or its representative shall have the right, if provided
for in its Mortgage with the defaulting owner, upon giving written notice to such defaulting
Owner and the Association and recording in County Recorder's Office a notice of default, to
exercise the voting rights of such defaulting Owner attributable to such Lot at any regular or
special meeting of the Members held during such time as such default may continue. Any such
Owner's voting rights shall be restored to it at such time as such default is cured.
Bressi Ranch Cwp. Center 2/1OOS
Declaration of CCiRs
3232B-1/1968579.8 41
8771
ARTICLE 15
DE-ANNEXATION
15.1 Deanncxation. Declarant may delete all 01 a pew lion of Ihe Property either
initially or subsequently made subject to this Declaration from the coverage of this Declaration
and the jurisdiction of the Association, so long as Declarant is the owner of all of such
deannexed property, has paid all outstanding assessments and provided that a Notice of Deletion
of Property is recorded in the Office of the County Recorder of San Diego County. Upon such
de-annexation, the obligations of the Association with regard to the deannexed property shall
cease.
ARTICLE 16
GENERAL PROVISIONS
J6.1 Enforcement. Except as otherwise expressly limited or set forth in the
Declaration, the Association and Declarant shall have the right 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 thereto, including the right to prevent the
violation of any such restrictions, conditions, covenants, or reservations and the right to recover
damages or other dues for such violation. After written request to the Association to prevent any
violation of this Declaration, and failure to act by Declarant or the Association within thirty (30)
days after receipt of such request, except as otherwise expressly limited in the Declaration, any
Owner shall be entitled to seek enforcement of the terms of this Declaration; provided, however,
such Owner shall not he entitled to recover damages against the Association or the Declarant in
connection with such action.
(a) Articles or Bylaws. The Association, any Owner, or Declarant shall have
the right to enforce by proceedings at law or equity provisions of the Articles or Bylaws and any
amendments thereto. With respect to design and architectural control, the Association Rules, and
the collection of Assessments, the Association shall have the exclusive right to the enforcement
thereof. Declarant shall in no way be liable to the Owners or any other person or entity for its
refusal or failure to enforce any of the provisions of this Declaration or for its waiver of such
provisions or any violations thereof.
(b) Enforcement by City. In addition to the right, but not the obligation, of
the City to maintain the Easements aiid/oi the Common Improvements set forth in Section 8.7
hereof, the City shall have the right, but not the obligation, to enforce those restrictions,
covenants, conditions and reservations imposed by the provisions of this Declaration that are in
favor of the City, or in which the City has an interest.
16.2 No Waiver. Failure by the Association by any Member to enforce any covenant,
condition, or restriction herein contained, or the Articles, Bylaws or Association Rules, in any
certain instance or on any particular occasion shall not be deemed a waiver of such right on any
such future breach of the same or any other covenant, condition or restriction.
16.3 Cumulative Remedies. All rights, options and remedies of Declarant, the
Association, the Owners or Mortgagees under this Declaration are cumulative, and no one of
Brcssi Ranch Corp. Center 2/10/05
Declaration of CC&Rs
32323-1/1968379.8 42
8772
them shall be exclusive of any other, and, subject to the limits on enforcement set forth in
Section 16.1 above, Declarant, the Association, the Owners and the Mortgagees 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.
16.4 Severability. Invalidation of any one or a portion of these covenants, conditions
or restrictions by judgment or court order shall in no way affect any other provision which shall
remain in full force and effect.
16.5 Covenants to Run with the Land; Term. The covenants, conditions and
restrictions of this Declaration shall run with and bind the Property and, subject to the limitations
on enforcement set forth in Section 16.1 above, shall inure to the benefit of and unless expressly
provided to the contrary, be enforceable by the Association or any Owner or Declarant, their
respective legal representatives, heirs, successors and assigns for a period of fifty (50) years and
shall be extended thereafter for ten (10) year periods, unless and until a majority of the total
Voting Power of all Owners shall determine during any extension year to terminate this
Declaration.
16.6 Construction. The provisions of this Declaration shall be liberally construed to
effectuate its purpose of creating a plan for the development of a nonresidential community or
tract and for the maintenance of the Property. The Article and Section headings have been
inserted for convenience and cross-reference only, and shall not be considered or referred to in
resolving questions of interpretation or construction.
16.7 Singular Includes Plural. Wherever the context of this Declaration requires
same, the singular shall include the plural and the masculine shall include the feminine and the
neuter.
16.8 Attorneys' Fees. In the event 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 and costs of such suit as part of the judgment.
16.9 Notices. Any notice to be given to an owner, the Association or a Mortgagee or
mortgage servicing contractor under the provisions of this Declaration shall be in writing and
may be delivered as follows:
(a) Notice to Owners. Notice to an Owner shall be deemed to have been
properly delivered when deposited in the United States mail, first class, postage prepaid, to the
most recent address furnished by such Owner in writing to the Association for the purpose of
giving notice, or if no such address shall have been furnished, then to the street address of such
Owner's Building. Any notice so deposited in the mail within the County shall be deemed
dcliveicd forty-eight (48) hours after such deposit. In the case of Co-Owners, any such notice
may be delivered or sent to any one of the Co-Owners on behalf of all Co-Owners and shall be
deemed delivered on all such Co-Owners. Notwithstanding the foregoing, if the Owner does not
occupy his Building or Building Unit, he or she from time to time shall provide the Board with a
current mailing address for the sending of notices. In such case, notice will be deemed to have
been delivered when delivered by mail, as provided in the preceding sentence, to such address.
Bressi Ranch Cttp. Cemer 2/lCM)5
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(b) Notice to Association. Notice to the Association shall be deemed to have
been properly delivered when deposited in the United States mail, first class, postage prepaid, to
the address furnished by the Association or to the address of its principal place of business.
(c) Notice to Mortgagee. Notice to a Mortgagee or its mortgage servicing
contractor shall be deemed to have been properly delivered when deposited in the United States
mail, first class, postage prepaid, to the address furnished to the Association by such mortgagee
or such contractor for the purposes of notice, or if no such address is furnished, to any office of
the Mortgagee in the county, or if no such office is located in the County, to any office of such
Mortgagee.
(d) Affidavits of Association. The affidavit of an officer or authorized agent
of the Association declaring under penalty of perjury that a notice has been mailed to any Owner
or Owners, to any Mortgagee or Mortgagees, or to all Members or all Mortgagees, to the address
or addresses shown on the records of the Association, shall be deemed conclusive proof of such
mailing, whether or not such notices are actually received.
16.10 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 public laws, ordinances and regulations
applicable thereto,
16.11 Personal Covenant. To the extent the acceptance of a conveyance of an Lot
creates a personal covenant between the Owner thereof and Declarant or other owners, such
personal covenant shall terminate and be of no further force or effect from and 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 Association or the parties otherwise
expressly agree.
16.12 Leases. Any agreement for leasing or rental of a Lot or Building or portion
thereof (hereinafter in this Section referred to as a "Lease") executed on or after the date of
recordation of this Declaration shall provide that the terms of such Lease shall be subject in all
respects to the provisions of this Declaration, the Articles, the Bylaws and the Association Rules.
Said Lease shall further provide that any failure by the lessee thereunder to comply with the
icnus uf the foregoing Uucuijicnis shall be a default under the Lease. All Leases shall be in
writing. Any Owner who shall lease its Building shall be responsible for assuring compliance by
such Owner's lessee with this Declaration, the Articles, the Bylaws and the Association Rules.
16.13 Amendments.
(a) Approval Required. Before the close of the first sale of a Lot to a
purchaser other than Declarant, this Declaration and any amendments to it may be amended in
any respect or revoked by the execution by Declarant of an instrument amending or revoking the
Declaration. The amending or revoking instrument shall make appropriate reference to this
Declaration and its amendments and shall be acknowledged and recorded in the Office of the
County Recorder. Subject to the provisions of this Section 16.13 or other provisions of this
Brtssi Ranch Crap. Center 2110/05
Declaration ofCC&Rs
44
8774
Declaration expressly requiring the consent of an Owner or the Declarant to modifications to this
Declaration, at any time(s), and from time to time hereafter, this Declaration may be amended
upon the vote or written assent of the Members representing a majority of the total Voting Power
of the Association. No material amendment to this Declaration shall be made without the written
assent or vote of Declarant (prior to the expiration of Declarant's Class B Voting Power) and the
written assent or vote of at least seventy-five percent (75%) of the Class A Voting Power. As
used in this paragraph, the term "material amendment to this Declaration" shall mean
amendments to provisions of this Declaration governing the following subjects (except as is
otherwise expressly permitted in this Declaration upon the recordation of a Declaration of
Annexation or Supplementary Declaration):
(1) Voting;
(2) Assessments, assessment liens and subordination thereof;
(3) The reserve tor repair and replacement of the Easements or
Common Improvements;
(4) Property maintenance obligations or casualty and liability
insurance;
(5) Reconstruction in the event of damage or destruction;
(6) Rights to use the Easements or Common Improvements;
and
(7) Any provision, which by its terms, is specifically for the
benefit of First Mortgagees, or specifically confers rights on First Mortgagees.
In addition to the foregoing, so long as Declarant owns any Lot, no termination, extension,
modification or amendment shall be effective without the prior written approval of Declarant
thereto.
(b) Limitations on Amendments. Unless the affected Owner shall expressly
consent thereto, no amendment to this Declaration shall operate to (i) terminate or otherwise
cause to be in violation of this Declaration any use of a Building or Lot which use was not
prohibited under this Declaration at the time the use first commenced; (ii) terminate or affect the
right of any Owner to transfer its Building or Lot or any right or interest therein predicated on the
continued use thereof in a manner not prohibited by this Declaration at the time such use of the
Building or Lot first commenced; or (iii) reduce the Voting Power of an Owner or increase an
Owner's Allocable Share of Assessments, except as expressly permitted hereunder. For
purposes of this paragraph the wnrH "use" in connection with a Building or Lot means the nature
of the occupancy of the Property, the kinds of goods and services kept, offered or performed
thereon. Nothing in this paragraph shall be deemed as permitting or condoning any unlawful
activity on or in any portion of the Project or any activity which constitutes a nuisance within the
meaning of Section 12.3 hereof.
Bressi Ranch Cop. Center 2/10/05
Declaration of CC&Rs
32328-1/I968579.B 45
8775
(c) Owner's Certifications. Each Owner approving the amendment shall
certify under penalty of perjury as to the names of all holders of every mortgage or deed of trust
encumbering its interests in the Project, and if no such holder is identified, such Owner's vote or
written consent shall conclusively be counted without consent from any other party. If any
provision in this Declaration requires a higher percentage vote to amend such provision, such
higher percentage shall be required to amend that provision. Upon obtaining the requisite vote or
written consent for an amendment to this Declaration, the authorized officers of the Association
shall execute on behalf of the Association such an amendment to this Declaration, and shall
record such amendment in the office of the County Recorder of San Diego County. Each such
amendment shall become effective upon recording.
(d) City Approval. Notwithstanding any provision of this Declaration to the
contrary, the City shall have the right to approve or disapprove any proposed amendment of the
Declaration that affects the City. A copy of any proposed amendment shall be provided to the
City at least thirty (30) days in advance of any vote on a proposed amendment. If the City
proposes to disapprove any such proposed amendment, shall respond in writing specifying the
reasons why it disapproves said proposed amendment. A copy of a final approved amendment
shall be transmitted to the City within thirty (30) days after its approval.
16.14 Conflicts. If any provision of this Declaration shall conflict with the Articles or
the Bylaws, the provisions of this Declaration shall govern and control.
16.15 Table of Contents and Captions. The table of contents and captions of this
Declaration are inserted only as a matter of convenience and for reference. They do not define,
limit or describe the scope or intent of this Declaration, and they shall not affect the
interpretation thereof.
16.16 Declaration for Exclusive Benefit of Owners. Except where expressly provided
otherwise in this Declaration, the provisions of this Declaration are for the exclusive benefit of
the Association and the Owners hereto and not for the benefit of any other person nor shall this
Declaration be deemed to have conferred any rights, express or implied, upon any other person.
16.17 No Partnership, Joint Venture, Principal-Agent or Third Party Beneficiary
Relationship. Nothing contained in this Declaration shall be deemed or construed by the
Owners hereto, or any of them, or by any third person, to create the relationship of principal and
agent, or of joint venture, or of partnership between or among any of the Owners under this
Declaration. There shall be no third party beneficiaries to this Declaration. Notwithstanding the
foregoing, the City shall have the right, but not the obligation, to enforce those portions of this
Declaration which are in favor of the City, or in which the City has an interest.
16.18 Governing Laws. This Declaration shall be construed, interpreted, governed and
enforced in accordance with the laws of the State of California.
16.19 Time of Essence. Time is of the essence with respect to the performance of each
of the covenants and agreements contained in this Declaration.
16.20 Exhibits. All exhibits referred to in this Declaration are incorporated herein by
reference. In addition, by acceptance of a deed for a Lot or by otherwise consenting to the
Bressi Ranch Corp. Center ' . 2/10/05
Declaration of CC&Rs
46
8776
recurdaliun of this Declaration againsl an Owiici'b Lul, all Owneis acknowledge and agree that
all exhibits attached hereto that arc diagrammatic in format are intended to depict the general
location of the items set forth therein and not the exact location of such items.
16.21 Davis Stirling Act. To the extent that the Project constitutes a "planned
development" as such term is defined in California Civil Code Section 1351(k), and thus falls
within the purview of the provisions of California Civil Code Sections 1350, et. seq. (commonly
known as the Davis-Stirling Common Interest Development Act and hereinafter referred to as
the "Act"), each Owner hereby waives, to the maximum extent permitted by law, the following
provisions of the Act: (i) Section 1354(b) through (j) relating to alternative dispute resolution
and the filing of civil actions; (ii) Section 1355.5 relating to amendments concerning a
developer's marketing rights; (iii) Section 1363(e), (f). (g) and (h) pertaining to the conduct of
meetings and other matters by the Association; (iv) Section 1363.05 relating to meetings;
(v) Section 1363.2 concerning certain accounting requirements by the managing agent of an
association; (vi) Section 1366(c) concerning notice of increase in Regular or Special
Assessments; (vii) Section 1366.3 concerning alternative dispute resolution; (viii) Section 1368.4
pertaining to notices prior to filing of civil actions; (ix) Section 1375 concerning construction
defect actions; and (x) any other provision of the Act which by its terms is inconsistent with this
Declaration. To the extent a court of competent jurisdiction determines that any or all of the
foregoing waivers are invalid, the invalidity of such waiver(s) shall not render this Declaration
invalid, and the Owners shall amend this Declaration to the extent necessary in order to cure the
elTect of said invalid waiver(s) and to comply with the Act. Notwithstanding the foregoing, in
the event that the Project ever includes a residential common interest development, the
Association shall comply with any applicable legal requirements.
IN WITNESS WHEREOF, Declarant has executed this instrument the day and year first
hercinabovc written.
BRESS1 RANCH DEVELOPMENT LLC, a
Delaware limited liability company
By: SRG Bressi, L.P., a California limited
partnership, its Managing Member
By: Regis Contractors. Inc., a California
eral Partner
_ •%* Bl ' B ^L* •™'"-'^* «m " ™- —•
Title: I I\AO. PfljU^HAiAt
Bivssi Runch Corp. Center 2/10/05
Occbraiion ol'CC&Rs
32328-1/1968579.8 47
8777
STATE
COUNTY OF
)SS.)
On
Notary Public in and for sa]cl County and State, personally appeared
known to me to be the ViCfc- 0Tt£(Ae*h' of
before me, the undersigned, a
, known to me to be we
instrument on behalf of said limited
executed the within instrument.
Witness my hand and official seal.
of
which executed the within
ship and acknowledged to me that said partnership
LINDA S. WATSON |[
COMM. #1392874 £
NOTARY PUBLIC-CALIFORNIA §
ORANGE COUNTY ro
MyComm. Exp..Jan. 9. 2007 ][
A- l/t&bnri
Notary Public in and for said County
STATE OF
COUNTY OF
)SS.
On
Notary Public in and for said County and State, personally appeared
known to me to be the of
before me, the undersigned, a
, known to me to be the _ of
_ which executed the within
instrument on behalf of said limited partnership and acknowledged to me that said partnership
executed the within instrument.
Witness my hand and official seal.
Notary Public in and for said County
Brcssi Ranch Corp. Center
Declaration of CC&Rs
3232S-I/I96S379.8
2/IO/OS
8778
LIST OF EXHIBITS
Exhibit A Legal Description and Plat of Property
Subject to Declaration
Exhibit B Plat of Easements and Common Improvements
Exhibit C Allocable Share of Assessments and Voting Power
Exhibit D Plat of Flight Activity Zone
Brcssi Ranch Corp. Center • 2/10/05
Declaration of CC&Rs32328-1/1968579,8
8779
EXHIBIT A
Legal Description and Plat of Property
Subject to Declaration
LOTS 1 THROUGH 40 INCLUSIVE OF CARLSBAD TRACT CT 02-15 IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO MAP
THEREOF NO. 14960 FILED IN THE OFFICE OF THE COUNTY RECORDER FOR SAN
DIEGO COUNTY ON FEBRUARY 4,2005.
Bressi Ranch Coip. Center 2/10/05
Declaration of CC&Rs
32328-1/1968579.8 EXHIBIT A
Page 1 of 2
PLANNING AREA DESIGNATION
BRESSI RANCH - MASTER SITE PLAN
THE SARES-REGIS GROUP
n
SmithConsultingArchitectsin» H Cunt* Rl4»il> TOO
CD
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EXHIBIT B
Plat of Easements and Common Improvements
. [Attached]
Brcssi Ranch Corp'. Center
Declaration of CCARs
32328-1/1968579.8 EXHIBIT B
EXHIBIT 'B-T - LOT #/ - LANDSCAPE EASEMENT
NOTE
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«>. CT-Oi-15 FOR NJ.
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MIT: 03/24/04
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EXHIBIT 'B-4' ~ LOT #'S 24 TO 32 - LANDSCAPE EASEMENT
PU.OUM MKWT SOU! ~~
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EXHIBIT 'B-5' - LOT #'S 33 TO 40 - LANDSCAPE EASEMENT
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EXHIBIT '8-6' - LOT m - STORM DRAIN EASEMENT
"NO STORM DRAIN EASEMENT IN LOT 31"
H01& KKKEHCf AMUHAP nx sffissr Mousrnu
HO. CT-W-15 FOR Ail
EASEKNT GEOUEIRY.
BRESSI RANCH
SARES REGIS GROUP
H: 03/M/Ot
N
1
PaotaaDssKBiCoHsaaxirn
00
-*3
00
EXHIBIT 'B-7' - LOT #'S 2 TO 9 - STORM DRAIN EASEMENT
HOIK REFERENCE MM
UM> FOR BRESS HOISItta.
HO. Ct-M-15 FOR AUCASOICNT ceoucnr.
RANCH
09/H/tM fpl BtcuBcrfJEaawGaMt
If I IMMD<MMIMIIM< •«•••I 1 rw«i—*w-««l-«.ap».CiniJC«MiSro**r3i'»?«J5S»c
00
00
00
EXHIBIT 'B-8' - LOT #'S 10 TO 23 - STORM DRAIN EASEMENT
NOTE:HUP FOR BRESa IIOXKOUL
NO. CI-OI-1S FOR XIIusfuoiT aawmr.
N
1
BRESSI RANCH
SARES^REQIS GROUP
Of If: 03/H/D4
u.ai'*>tu,u tip
00•a
Oo
CO
&HBfLB-9^LQT#'S24TO&- STORM DRAIN EASEMENT
HOIE- RETOOK? FWLIMP FOR WtCSS NOUSWL
N& CMO-1S FOR HJ.
USEMENT GEOHflKr.
BRESSI RANCH
SARES REOS QROOP
(UK: 09/34/X
N
t
CD
•M
CO
taOM c»m»
EXHIBIT 'B-10' - LOT #'S 33 TO 40 - STORM DRAIN EASEMENT
KOJE: KfB0K£ WAIHAP fat BKSS
HO. CM8-I5 FOR ML
BfiESSI RANCH
SARES RECKS CROUP
IHlt: 09/14/04 PlIOfBCiDBSttBlGXBVtJCtilfTS
: CD
!. 2
EXHIBIT 'B-W - LOT #1 - UTILITY EASEMENT
NOTEIMP FOR etxsa mousnsAL
HO. CT-m-15 FOR ML
EASBONT
BRESSI RANCH
DAIf: M/M/04
GROUP
00
COto
EXHIBIT &-12' - LOT *'S 2 TO 9 - (JULITY EASEMENT
fjt iriu f pntn' "~f'
NOTE fiEFBKWCT fWAi
IUF n« aiaa imusnoM.
NO. CT-02-15 rot Mi
RANCH
GROUP
N-i
01• 5I ^
00
CO
Co
SKRES
OAlt: 01/14/tH
WIMAM^BI. 1—brvi.U«MU4m ' ^AT <»dS44M*
v-w - LOT rs 10 TO 23 - UTILITY EASEMENT
NOTE- R&tKKB FWA
IMP fOK WS9 WM/JJRWl
Ntt CT-OJ-IS FOR ML
eASOOHT (XOkflRK
BRMSSIRANGH
MIT: 03/H/tM
'GROUP
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Co
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CO
EXHIBIT 'B-14' - LOT #'S 24 TO 32 - UTILITY EASEMENT
L
NOTE WFEKKCF fWAlHW fat Bfxss mwsnMiMa a-ot-a rut MJ.usoion cfoufmr.
BR&SSI RANCH
SAflES REGIS GROUP
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N
1
OO•aco
EXHIBIT 'B-15' - LOT *'S 33 TO 40 - UTILITY BASEMENT
AWE; RCffKOttf fVUL
M*P rOK BRfSa IMDUSIOU.
NO. CT-02-tS FCK HJ.
BRMSSI RANCH
SAFES-REQIS GROUP
CUflf: 09/H/04
TDI i im.Uk* •*/;••:4I*UVM7I TAT
oo
CO
05
EXHIBIT 'B-16' - LOT #T - SKSW&E EASEMENT
NOTL-HH> ma guess INWSIKW.
NO. Cr-03-IS FOR AIL
USfUEHJ tXOUfJIIY.
BRMSSI RANCH
SARES'REGIS GROUP
OA1L 09/24/04
i
CD
NOTE- REffKNCf FW-ttff FOR HESS IHBUSmtL
NO. Cr-OZ-15 riXt MLccounsr.
EXHIBIT 'B-17' - LOT #'S 2 TO 9 - SIGNAGE EASEMENT
BRESSI RANCH
SARES REGOS CROUP
(MIF: »/7</W
lit MM* fc*» •B.'-jiO—; CA «3«
'•I»w36»
CD
^COCD
EXHIBIT 'B-18' - LOT #® 10 TO 23 - SIGNAGE EASEMENT
\
TOJEiw rat axss HOUSWM.
NO. CT-m-15 FOR AU.EASfuaiT erac mr.
SARES REOS GROUP
OAlt- C3/14/IM
t
GO•sjr<^
CO
EXHIBIT &-19' - LOT #'S 24 TO 32^- SIGNAGE EASEMENT
NOte«w FOK u&sa mousnw.no. cr-oi-15 nxt MJ.usotEHi ceourmr.
BRMSSI RANCH
SAP
OAlfc
QDOoO
W*) fyMBcrDESKNGcHsaiT^ ' IBttlM'IMtvS^Sb^CM DIM4*UO«^I f *Z At»4144M*
EXHIBIT '&&&' - LOT »'S 33 TO 4O - StGNAGE EASEMENT
NOJt: BfTOIOK£ F9W.va> FOR awss MousmtMm. cr-oj-is FOR tu.
tASDXHT CfOUtJftY.
NJ
01• 0
• ^
RANCH
SARES REGIS GROUP
. 04IC: Of/M/W
CD
CO
8802
EXHIBIT C
Allocable Share of Assessments and Voting Power
Lot
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Lot Size (gross Acres)
1.94472
4.74961
4.26035
4.03345
2.28455
2.34467
1.67305
1.77817
1.96168
3,79536 ;.,^,
1.65668
1.54132
2.93476
4.51109
3.53301
6.92261
2.12686
2.17059
2.19667
1.93588
Voting Power
15
37
33
31
18
18
13
14
15
29
13
12
23
35
27
54
17
17
17
15
Allocable Share of
Assessments for Lots
Subject to Declaration (%)
1.50637
3.67901
3.30004
3.12428
1.76960
1.81617
1.29593
1.37736
1.51960
2.93986
1.28325
1.19390
2.27324
3.49426
2.73665
5.36221
1.64745
1.68132
1.70153
1.49952
Bressi Ranch Corp. Center
Declaration ofCC&Rs
J2328-l/l%8579.8
2/10/05
EXHIBIT C
8803
Lot
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
TOTAL
Lot Size (gross Acres)
1.61605
1.90684
4.43186
6.11396
3.15847
3.02431
2.46644
6.06221
8.29311
2.21164
3.00321
4.20415
3.81437
1.44745
1.69077
1.84807
1.64362
2.28864
1.77544
9.74432
129.10
Voting Power
13
15
34
47
24
23
19
47
64
17
23
33
30
11
13
14
13
18
14
75
1000
Allocable Share of
Assessments for Lots
Subject to Declaration (%)
1.25178
1.47702
3.43289
4.73583
2.44654
2.34261
1.91048
4.69575
6.42379
1.71312
2.32629
3.25651
2.95458
1.12119
1.30966
1.43150
1.27313
1.77276
1.37524
7.54788
100.00 (approx.)
Bressi Ranch Corp. Center
Declaration of CC&Rs
32J28-1/1968579.8 EXHIBIT C
2/10/05
8804
EXHIBIT D
Plat of Flight Activity Zone
Attached
Bressi Ranch Corp. Center 2/10/05
Declaration ofCC&Rs
32328-]/l%g579.8 EXHIBIT D
A4 WCH
X^
5
6
1 -
I
t1
1
1r!
— »-
9
a
7
j
LfGGVD
BHESSi MDUSTFUAL
AtHPORTZONE AREAS
EXHBfTV
SA/3ES flSQIS GROUP
GO
00o
FVOHTACTMrrXNE (FAZ)
BHESSI RANCH
BHESSI (NDUSTWAL
AIRPORT ZONE AREAS
EXHfBTTV
OF.
SAfiES REGIS GROUP
Mil-
CO
00
05
8807
SUBORDINATION
The undersigned, as Mortgagee and holder of the beneficial interest in and under that
certain Deed of Trust recorded on June 1, 2004, as Instrument No. 2004-0503897, in the Official
Records of San Diego, California (the "Deed of Trust"), which Deed of Trust is by and between
Bressi Ranch Development, LLC, a Delaware limited liability company, as Trustor, and BANK
OF AMERICA, N.A., a National Banking Association, as Mortgagee, and which Deed of Trust
encumbers all or a portion of the real property covered by the Declaration (as defined below),
expressly subordinates the lien of said Deed of Trust to the foregoing Declaration of Covenants,
Conditions and Restrictions and Grant of Reciprocal Easements for Bressi Ranch Corporate
Center, as amended or restated ("Declaration"), and to all easements to be conveyed to the
Association in accordance with the Declaration. By executing this Subordination, the
undersigned agrees that should the undersigned acquire title to all or any portion of the Property
(as defined in the Declaration) by foreclosure (whether judicial or nonjudicial), deed-in-lieu of
foreclosure or any other remedy in or relating to the Deed of Trust, the undersigned will acquire
title subject to the provisions of the Declaration, which shall remain in full force and effect.
Dated: February <? ,2005 BANK OF AMERICA, N. A., a National
BankkfgAtesociatior
Its:
By:_
Its:
STATE OF
COUNTY OF
)
) ss.
)
On rtb. 9.3t>t>£ before me,
L•
, personally appeared
personally known to me (or proved to me-
on the baMST)f satisfactory evidence) to be the person whose name(8^-af^|)subscribed to the
within instrument and acknowledged to me that feflgsfigftheyexecuted the same in hi^^/theip-
authorized capacity, and that by hi^^their signature^ on the instrument the person(s); or the
entity upon behalf of which the person^facted, executed the instrument.
WITNESS my hand and official seal.
Signature (SEAL)
J. ACOfiO
CommMbn 11434663
Notary Pubfc • CoWomta
Orange County
My Comm. Expires Akigiza)07
J. ACORD
Commtaionf 1434663
ftoto^ Public - CdHbmto
O«angfi County
STATE OF
COUNTY OF
On
)
) ss.
)
before me,, personally appeared
personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (SEAL)
2038368.2
SUBORDINATION
The undersigned, as holder of the beneficial interest in and under that certain Deed of
Trust recorded on June 1, 2004, as Instrument No. 2004-0503898, in the Official Records of San
Diego, California (the "Deed of Trust"), which Deed of Trust is by and between Bressi Ranch
Development, LLC, a Delaware limited liability company, as Trustor, and BRESSI RANCH
FUNDING COMPANY, a Delaware corporation, as Beneficiary, and which Deed of Trust
encumbers all or a portion of the real property covered by the Declaration (as defined below),
expressly subordinates said Deed of Trust and its beneficial interest thereunder to the foregoing
Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements for
Bressi Ranch Corporate Center, as amended or restated ("Declaration"), and to all easements to
be conveyed to the Association in accordance with the Declaration. By executing this
Subordination, the undersigned agrees that should the undersigned acquire title to all or any
portion of the, Property (as defined in the Declaration) by foreclosure (whether judicial or
nonjudicial), deed-in-lieu of foreclosure or any other remedy in or relating to the Deed of Trust,
the undersigned will acquire title subject to the provisions of the Declaration, which shall remain
in full force and effect.
Dated: Febta*? TT2Q05 BRESSI RANCH FUNDING COMPANY,
A Delaware corporation
DAVID C. SEARS
Vtoe President Real Estate
STATE OF
COUNTY OF
)
) ss. •
8810
On *) KkuhcJOftS before mef ~b&tor&. fVUJ xnsWX^ 1 rv^c^y . personally appeared
~Z^£ti^^ • ---- personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity, 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.
(SEAL)
DEBRAA.WINSTEAD
Commission f 1348689
Notary Public* California
Loa Angeles County
My Comm. Expires Apr 24.2006
STATE OF
COUNTY OF
)
) ss.
On^ lU/U ck3j>S before me,
VCwtd C
yiA-W
personally known t
, personally appeared
me (or proved to me
on the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity, 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.
Signat (SEAL)
OE8RAA.WINSTEAO
Commission* 1348689
Notary Public-California
Los Angelea County
**yComm. Expires Apr24.2006