HomeMy WebLinkAboutCT 06-10; Opus Point Lot 23 & 24; Tentative Map (CT)Recording Requested By:
First American Title
Nat'l Commercial Services
13696
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
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Luce, Forward, Hamilton & Scripps LLP
600 West Broadway, Suite 2600
San Diego, CA 92101-3391
Attn: Nancy T. Scull, Esq.
DOC# 2007-0536846
AUG10,2007 4:54 PM
OFFICIAL RECORDS
SAM DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH. COUNTY RECORDER
FEES: 240.00 WAYS: 2
PAGES: 76
-2007-0536846
Above Space for Recorder's Use
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF
L1ONSHEAD POINT
SECTION 15.4 OF THIS DECLARATION CONTAINS A BINDING ARBITRATION
PROVISION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. YOU
SHOULD CONSULT LEGAL COUNSEL WITH ANY QUESTIONS ON THESE OR
OTHER PROVISIONS OF THIS DECLARATION.
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TABLE OF CONTENTS
Page
ARTICLE! DEFINITIONS 2
1.1 Additional Charges 2
1.2 Allocable Share 2
1.3 Alteration 2
1.4 Applicable Laws 2
1.5 Architectural Committee '. 3
1.6 Architectural Guidelines 3
1.7 Articles .3
1.8 Association 3
1.9 Association Maintenance Manual 3
1.10 Association Property 3
1.11 Board 3
1.12 Building 3
1.13 Building Module..... :..,... 3
1.14 Bylaws 3
1.15 Capital Improvement Assessments 3
1.16 City 3
1.17 Claims ;......3
1.18 Common Area 4
1.19 Common Expenses 4
1.20 Condominium ..5
1.21 Condominium Plan 5
1.22 County : 5
1.23 Declarant 5
1.24 Declaration 5
1.25 Designated Exclusive Use Easement Area Walls or Floors 5
1.26 Emergency 6
1.27 Enforcement Assessments 6
1.28 Exclusive Use Easement or Exclusive Use Easement Area 6
1.29 Exclusive Use Elevator Areas 6
1.30 Final Map 6
1.31 First Mortgage 6
1.32 First Mortgagee 6
1.33 Fiscal Year , 6
1.34 Governing Documents 6
1.35 Hazardous Materials 6
1.36 Improvements 7
1.37 Invitee 7
1.38 Lease 7
1.39 Lessee 7
1.40 Lobby 7
1.41 Maintenance Obligations ; 7
1.42 Majority of the Voting Power 7
1.43 Master Association 7
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.44 Master Declaration :. 7
.45 Master Design Guidelines 8
.46 Member 8
.47 Mortgage 8 '
.48 Mortgagee 8
.49 Notice and Hearing 8
.50 Owner 8
.51 Parking Spaces 8
.52 Project ..• 8
.53 Project Handbook 8
.54 Property 8
.55 Regular Assessments 8
.56 Rules and Regulations 8
.57 Shaft Spaces 8
.58 Signage 8
.59 Signage Program 9
.60 Special Assessments :... 9
.61 Square Footage 9
.62 Stairwell 9
.63 State , 9
.64 Supplementary Condominium Plan 9
.65 Supplementary Declaration 9
.66 Unit '. 9
.67 Utility Facilities 10
.68 Voting Power 10
ARTICLE 2 OWNERSHIP AND EASEMENTS 10
2.1 Ownership of Condominium 10
2.2 Delegation of Use 10
2.3 Easements 10
2.4 Creation of Designated Exclusive Use Easement Area Walls or Floors 12
2.5 Elevator Easements 13
ARTICLE 3 THE ASSOCIATION 14
3.1 The Organization 14
3.2 Association Action; Board of Directors and Officers; Members' Approval 14
3.3 APPOINTMENT OF ASSOCIATION AS AGENT 14
3.4 Powers of the Association 15
3.5 Duties of the Association 17
3.6 Personal Liability 18
ARTICLE 4 MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 19
4.1 Membership 19
4.2 Number of Votes , 20
ARTICLES ASSESSMENTS 20
5.1 Creation of Lien and Personal Obligation for Assessments 20
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5.2 Regular Assessments 21
5.3 Special Assessments 21
5.4 Capital Improvement Assessment 21
5.5 Reconstruction Assessments 22
5.6 Enforcement Assessments 22
5.7 Limitation on Assessments 22
5.8 Allocation of Assessments to Condominiums 22
5.9 Date of Commencement of Regular Assessments; Due Dates 23
5.10 Notice and Assessment Installment Due Dates 23
5.11 Collection of Assessments, Liens 23
5.12 Subordination of Lien to First Mortgages 25
5.13 No Offsets 25
5.14 Personal Liability of Power 25
5.15 Transfer of Property 25
5.16 Failure to Fix Assessments 25
5.17 Property Exempt from Assessments 26
5.18 Reserve Fund ..-. :..-. , 26
5.19 Inspection of Books and Records 26
5.20 Estoppel Certificate 26
5.21 Initial Capital Contribution 26
ARTICLE 6 USE RESTRICTIONS 26
6.1 Restrictions of Master Declaration 26
6.2 Permitted Uses 27
6.3 Prohibited Uses 27
6.4 View Corridor Restriction.. 27
6.5 Development Restrictions 27
6.6 Modifications to Joint Use Areas 27
6.7 Rental of Condominiums 27
6.8 Signs 27
6.9 Inside and Outside Installations 28
6.10 No Mechanics' Liens 28
6.11 Outside Storage 28
6.12 Fire Sprinkler Systems 28
6.13 Drainage 29
6.14 Antennae and Satellite Dishes ; 29
6.15 Parking and Vehicular Restriction 29
6.16 Toxic or Noxious Matter 31
6.17 Air Pollution 31
6.18 Compliance with Laws, Etc 31
6.19 Trash Disposal 31
6.20 Closure 31
6.21 Compliance with Requirements Regarding Project Storm Water Pollution 31
6.22 Notice of Airport in Vicinity 32
ARTICLE 7 MAINTENANCE 32
7.1 Maintenance Obligations of Owners 32
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7.2 Maintenance Obligations of Association 34
7.3 Compliance with Warranties 36
7.4 Water and Sewer Meters 36
7.5 House Electric Meters 37
ARTICLES ARCHITECTURAL REVIEW 37
8.1 Master Architectural Approval 37
8.2 Scope 37
8.3 Architectural Guidelines 38
8.4 Duties of Board for Architectural Review 38
8.5 Powers of Board for Architectural Review 39
8.6 Inspection and Correction of Work 39
8.7 Government Regulations 40
8.8 Diligence in Construction 40
8.9 Fee for Review 40
8.10 Compensation 40
8.11 Interpretation and Appeal 41
8.12 Waiver 41
8.13 Estoppel Certificate 41
8.14 Liability :....41
8.15 Non-Applicability to Declarant .....41
8.16 Government Requirements 41
8.17 Variances 41
8.18 Appointment of Architectural Committee ....42
ARTICLE 9 DEVELOPMENT RIGHTS 42
9.1 Limitations of Restrictions 42
9.2 Access 42
9.3 Rights to Complete Construction 42
9.4 Size and Appearance of Project 43
9.5 Marketing Rights 43
9.6 Title Rights 44
9.7 Power of Attorney....: 44
9.8 Supplementary Condominium Plans and Supplementary Declarations 44
ARTICLE 10 INSURANCE 44
10.1 Association's Insurance Obligations : 44
10.2 Owners' Insurance Obligations 47
10.3 Review of Insurance 49
10.4 Board's Authority to Revise Insurance Requirements 49
ARTICLE 11 DESTRUCTION OF IMPROVEMENTS AND CONDEMNATION 50
11.1 Restoration Defined 50
11.2 Insured Casualty 50
11.3 Restoration Proceeds 50
11.4 Rebuilding Contract 52
11.5 Authority to Effect Changes 52
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1.6 Minor Repair and Reconstruction 53
1.7 Damage or Destruction to a Unit 53
1.8 Condemnation of Common Area/Association Property 53
1.9 Condemnation Of A Condominium 53
1.10 Limitation on Liability 54
ARTICLE 12 PARTITION AND SEVERABILITY OF INTERESTS 54
12.1 Partition 54
12.2 Power Of Attorney , 54
12.3 Prohibition Against Severance 54
12.4 Conveyances 55
ARTICLE 13 RIGHTS OF MORTGAGEES 55
13.1 Mortgagee's Opportunity to Cure 55
13.2 Application of Charges to First Mortgagees 55
13.3 Limitation of Enforcement Against First Mortgagee 56
13.4 Damage or Destruction 56
13.5 Insurance and Condemnation Proceeds 56
ARTICLE 14 AMENDMENTS 56
14.1 City Notification and Approval.,... 56
14.2 Amendment Before the Close of First Sale 56
14.3 Amendments After the Close of First Sale 56
14.4 Controlling Provisions 57
14.5 Further Approvals Regarding Amendments 57
ARTICLE 15 ENFORCEMENT 57
15.1 Term 57
15.2 Enforcement and Nonwaiver 57
15.3 Notice and Opportunity to Repair 58
15.4 Alternative Dispute Resolution 59
15.5 City's Right to Enforce 63
ARTICLE 16 GENERAL PROVISIONS 63
16.1 Headings 63
16.2 Severability 63
16.3 Excuse for Non-Performance , 63
16.4 Cumulative Remedies 64
16.5 Violations as Nuisance 64
16.6 No Racial Restriction 64
16.7 Access to Books 64
16.8 Liberal Construction 64
16.9 Estoppel Certificate 64
16.10 Notification of Sale of Condominium 64
16.11 Number, Gender 65
16.12 Exhibits 65
16.13 Binding Effect 65
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16.14 Easements Reserved and Granted 65
16.15 Statutory References 65
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF LIONSHEAD POINT
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF
LIONSHEAD POINT ("Declaration") is made this \Q day of A \MufrV
by O.W. COMMERCIAL, INC., a Delaware corporation ("Declarant") with reference to the
facts set forth in the Article hereof entitled "Recitals."
RECITALS
Capitalized terms under the Recitals are defined in Article 1 below.
A. Property Owned by Declarant. Declarant is the owner in fee simple of that
certain real property situated in the City of Carlsbad, County of San Diego, State of California,
more particularly described on Exhibit "A" attached hereto and incorporated herein,
B. Nature of Project. Declarant intends to establish a plan of condominium
ownership and to develop the Property as an office condominium project within the meaning of
California Civil Code Section 1351(0, and to subject the Property to certain limitations,
restrictions, conditions and covenants as hereinafter set forth, in accordance with the provisions
of California Civil Code Sections 1350 et seq. To that objective, Declarant desires and intends to
impose on the Properly certain mutually beneficial restrictions, limitations, easements,
assessments and liens under a comprehensive plan of improvement and development for the
benefit of all of the Owners, the Condominiums, Common Area and Association Property and
the future Owners of said Condominiums, Common Area and Association Property.
C. Description of Project. Declarant intends to develop an office development on
the Property. Declarant makes no guarantee that the Project will be constructed as presently
proposed. Owners of a Condominium will receive title to a Unit plus an undivided fractional
interest as tenant in common to the Common Area located within the Building Module within
which the Unit is located. In addition, certain Owners of a Condominium will receive the
exclusive right of use and occupancy of a portion of the Common Area designated as an
appurtenant Exclusive Use Easement as shown on the Condominium Plan. Each Condominium
Owner will also receive certain easements for ingress, egress, and other purposes over the
Association Property and the Common Area within the Building Module in which the Unit is
located. Such easements are more particularly described in this Declaration and the deeds
conveying the Units to the Owners. Each Condominium shall have appurtenant to it a
membership in the Lionshead Point Owners Association, a California nonprofit mutual benefit
corporation. Each Condominium shall also have appurtenant to it a membership in the Fenton
Raceway Business Park Owners Association, a California non-profit mutual benefit corporation
("Master Association").
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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
furtherance of a plan of condominium ownership as described in California Civil Code
Section 1350 et seq. for the subdivision, improvement, protection, maintenance, and sale of
Condominiums within the Property, and all 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 on 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 1354.
ARTICLE 1
DEFINITIONS
Unless the context otherwise specifies or requires, the terms defined in this Article shall,
for all purposes of this Declaration, have the meanings herein specified.
1.1 Additional Charges. The term "Additional Charges" means costs, fees, charges
and expenditures, including without limitation, attorneys' fees, late charges, interest and
recording and filing fees actually incurred by the Association in collecting and/or enforcing
payment of assessments, fines and/or penalties.
1.2 Allocable Share. The term "Allocable Share" means each Owner's share of
assessments which shall be a fraction (a) the numerator of which shall be the Square Footage of
such Owner's Unit, and (b) the denominator of which is the total Square Footage of all Units
within the Property subject to this Declaration. The determination of the Allocable Shares for
each Unit shall be on file with the Association.
1.3 Alteration. The term "Alteration" means an alteration, addition, modification to,
or replacement of, all or any portion of the Improvements to a Unit, which alteration, addition,
modification or replacement (a) is visible from the exterior of a Unit, (b) impacts or affects in
any manner the structural systems or structural integrity of a Building, the Common Area, the
life safety systems of a Building, or any shared utility lines or systems, or (c) affects the grade
and/or drainage patterns of the Project. An Alteration does not include any original installation
or construction of an Improvement by Declarant.
1.4 Applicable Laws. The term "Applicable Laws" means the entitlements for the
Project and any law, regulation, rule, order and ordinance of any governmental agencies having
jurisdiction over the Project which are applicable to the Project or any portion thereof for the use
or occupancy of the Project, now in effect or as hereafter promulgated.
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1.5 Architectural Committee. The term "Architectural Committee" refers to any
committee which may be appointed by the Board, pursuant to the provisions of Article 8 of this
Declaration.
1.6 Architectural Guidelines. The term "Architectural Guidelines" means the
design criteria that may be adopted by the Board pursuant to the provisions of Article 8 of this
Declaration. The Architectural Guidelines shall be included as part of the Project Handbook.
1.7 Articles. The term "Articles" means the Articles of Incorporation of the
Association as they may from time to time be amended which are or shall be filed in the Office
of the Secretary of State for the State of California.
1.8 Association. The term "Association" means the Lionshead Point Owners
Association, a California nonprofit mutual benefit corporation, its successors and assigns.
1.9 Association Maintenance Manual. The term "Association Maintenance
Manual" refers to the manual which may be provided to the Association, specifying obligations
for maintenance of the Association Property, Common Area and other areas to be maintained by
the Association, as updated and amended from time to time.
1.10 Association Property. The term "Association Property" means all real property
owned, from time-to-time, in fee title by the Association, which shall consist of all real property
within the Project, excepting therefrom the Building Modules.
1.11 Board. The term "Board" means the Board of Directors of the Association.
1.12 Building. The term "Building" refers to each building within the Project.
1.13 Building Module. The term "Building Module" means each Building Module
designated on the Condominium Plan. Each Building Module is a three-dimensional shape that
has been created pursuant to California Government Code Section 66427. The lower and upper
boundaries of the Building Modules are shown on the Condominium Plan. The lateral
boundaries of each Building Module are vertical planes which are also described and depicted in
the Condominium Plan. The Building Module includes all land and Improvements (whether now
or hereafter located) within its boundaries.
1.14 Bylaws. The term "Bylaws" means the bylaws of the Association, as they may
from time to time be amended, which are or shall be adopted by the Board.
1.15 Capital Improvement Assessments. The term "Capital Improvement
Assessments" means the assessments which are levied pursuant to the provisions of Section 5.4
of this Declaration.
1.16 City. The term "City" means the City of Carlsbad, California.
1.17 Claims. The term "Claims" means all claims, actions, demands, liabilities,
damages, costs, penalties, forfeitures, losses or expenses, including, without limitation,
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reasonable attorneys' fees and costs and the costs and expenses of enforcing any indemnification,
defense or hold harmless obligation under the Governing Documents.
1.18 Common Area. The term "Common Area" refers to that portion of a Building
Module which is not designated as a Unit on the Condominium Plan, which Common Area is
owned in equal undivided interests by the Owners of the Units located in such Building Module.
The Common Area includes, without limitation, the exterior walls, exterior doors, exterior
windows and glass, roof access areas, demising walls, stairs, stair wells, mechanical shafts,
electrical rooms, roofs and foundations of the Buildings, the bearing walls located within a Unit,
if any, and all structural components within a Unit which may be required for the support of the
Building within which the Unit is located, except for the finished surfaces thereof. Any Utility
Facilities serving more than one Unit, and located within a Building Module, are a part of the
Common Area.
1.19 Common Expenses. The term "Common Expenses" refers to the actual and
estimated costs and expenses incurred or to be incurred by the Association, including without
limitation, the following: , - .
1.19.1 maintenance, management, operation, repair and replacement of the
Common Area and Association Property, and all other areas within the Property which are
maintained by the Association;
1.19.2 assessments due but unpaid hereunder and assessments levied against
the Project under this Declaration;
1.19.3 assessments levied by the Master Association under the Master
Declaration;
1.19.4 costs of monitoring the life safety systems within the Units;
1.19.5 costs of management and administration of the Association, including
without limitation, compensation paid by the Association to managers, accountants, attorneys,
architects and employees;
1.19.6 the costs of any utilities, trash pickup and disposal, landscaping, and
other services benefiting the Owners and their Units to the extent such services are paid for by
the Association;
1.19.7 the costs of fire, casualty, liability, workers compensation and other
insurance required to be maintained by the Association hereunder;
1.19.8 reasonable reserves as deemed appropriate by the Board or otherwise
required pursuant to the Governing Documents;
1.19.9 the costs of bonding of the members of the Board, any professional
managing agent or any other person handling the funds of the Association;
1.19.10 taxes and assessments paid by the Association;
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1.19.11 amounts paid by the Association for the discharge of any lien or
encumbrance levied against the Common Area, Association Property or portions thereof;
1.19.12 costs incurred by the Board or other committees of the Association;
1.19.13 costs of maintaining storm drainage systems, including without
limitation storm drain inlets located within the Association Property and Common Area, and
annual inspection fees or charges imposed by any governmental agency, if any; and
1.19.14 the costs of any other item or items designated by, or in accordance
with other expenses incurred by the Association for any reason whatsoever in connection with
the operation and/or maintenance of the Common Area, Association Property or in furtherance of
the purposes or the discharge of any obligations imposed on the Association by the Governing
Documents.
1.20 Condominium. The term "Condominium" means an estate in real property as
defined in California Civil Code Section 135 l(f)-consisting of an undivided interest as a tenant-
in-common in all or any portion of the Common Area, together with a separate fee interest in a
Unit and any other separate interests in the Property as are described in this Declaration, the
Condominium Plan or in the deed conveying the Condominium.
1.21 Condominium Plan. The term "Condominium Plan" means (i) the condominium
plan recorded pursuant to California Civil Code Section 1351, and any amendments to the plan,
and (ii) any Supplementary Condominium Plans (as defined below), recorded pursuant to the
provisions of this Declaration.
1.22 County. The term "County" means the County of San Diego, California.
1.23 Deciarant. The term "Declarant" means O.W. Commercial, Inc., a Delaware
corporation, and its successors and assigns, provided (i) such successors and assigns acquire any
or all of Declarant's interest in the Property for the purpose of the development, sale, and
marketing of the Units and then only during the period such successors and assigns are actively
developing, selling and marketing the Units, and(ii) Declarant has expressly transferred or
assigned to such successors or assigns its rights and duties as Declarant to a portion or all of the
Project. For any successor or assignee of "Declarant" to be deemed a Declarant under the terms
of this Declaration, Declarant shall record in the County an instrument so designating said
successor or assignee as Declarant. A successor Declarant shall also be deemed to include the
beneficiary under any deed of trust securing an obligation from a then existing Declarant
encumbering all or any portion of the Property, which beneficiary has acquired any such
property by foreclosure, power of sale or deed in lieu of such foreclosure or sale.
1.24 Declaration. The term "Declaration" means this Declaration of Covenants,
Conditions and Restrictions of Lionshead Point, as this Declaration may from time to time be
amended or supplemented.
1.25 Designated Exclusive Use Easement Area Walls or Floors. The term
"Designated Exclusive Use Common Area Walls or Floors" refers to those portions of the
Common Area consisting of walls and internal equipment located within such walls or floors
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such as plumbing, ventilating and electrical wires, which are located between two (2) adjacent
Units (either horizontally or vertically) over which an Exclusive Use Easement shall be assigned
by the Declarant or the Association if an Owner acquires fee title to two (2) or more adjacent
Units separated by such wall or floor, subject to compliance with the requirements of this
Declaration.
1.26 Emergency, means any situation, condition or event which threatens substantial
imminent danger or injury to person or property, .
1.27 Enforcement Assessments. The term "Enforcement Assessments'' means the
assessments which are levied pursuant to the provisions of Section 5.6 of this Declaration.
1.28 Exclusive Use Easement or Exclusive Use Easement Area. The term
"Exclusive Use Easement" or "Exclusive Use Easement Area" means those portions of the
Common Area and/or Association Property over which exclusive, appurtenant easements are
reserved for the benefit of certain Owners in accordance with California Civil Code
Section 135 l(i), described in this Declaration and the Condominium Plan.
1.29 Exclusive Use Elevator Areas. The term "Exclusive Use Elevator Areas" refers
to those areas, if any, within the Common Area of a Building designated as "Exclusive Use
Elevator Areas" on the Condominium Plan or a Supplemental Condominium Plan over which
exclusive easements have been reserved for the benefit of certain Owners of Units located on the
second floor for elevator purposes in accordance with California Civil Code Section 1.35 l(i) and
pursuant to the provisions of Section 2.5 of this Declaration.
1.30 Final Map. The term "Final Map" means the final subdivision map covering the
Project.
1.31 First Mortgage. The term "First Mortgage" means a Mortgage which has
priority under the recording statutes of the State of California over all other Mortgages
encumbering a specific Condominium in the Project.
1.32 First Mortgagee. The term "First Mortgagee" means the Mortgagee of a First
Mortgage.
1.33 Fiscal Year. The term "Fiscal Year" means a calendar year unless the Board
elects a different accounting period.
1.34 Governing Documents. The term "Governing Documents" refers collectively to
this Declaration, any Supplementary Declaration and the Articles, Bylaws and the Project
Handbook.
1.35 Hazardous Materials. The term "Hazardous Materials" means and refers to any
substance, material or waste which is or becomes (i) regulated by any governmental authority
because of its toxicity, ignitability, corrosivity or reactivity; or (ii) defined as a "hazardous
substance." "extremely hazardous substance," "hazardous waste," "extremely hazardous waste,"
"restricted hazardous waste," "Non-RCRA hazardous waste," RCRA hazardous waste,"
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recyclable material," "mixed waste." "medical waste" or similar material under any federal, state
or local statute or regulation promulgated thereunder.
1.36 improvements. The term "Improvements" means any Buildings, fences, walls,
plantings, trees, shrubs, paving, irrigation, sidewalks, curbs, loading facilities, utility facilities,
poles, signs, and all other structures or Improvements of every type and kind installed or erected
on the Property.
1.37 Invitee. The term "Invitee" means any person whose presence within the Project
is approved by or is at the request of Declarant, the Association or a particular Owner, including
without limitation, Lessees and the visitors, employees or licensees of Owners or Lessees.
1.38 Lease. The term "Lease" means any lease, license or other agreement whereby
an occupant acquires rights to use or occupy any portion of the Condominiums.
1.39 Lessee. The term "Lessee" means each person who, at any given time, is leasing
a Condominium in a Building under a written Lease. Except as otherwise provided herein, an
Owner may not designate a Lessee as primarily responsible for the burdens and obligations
imposed on such Owner herein during the term of the Lease, and further may not designate to
such Lessee the right to exercise the voting powers granted to such Owner under this
Declaration. : : ;:
1.40 Lobby. The term "Lobby" means those portions of the two story Buildings
designated on the Condominium Plan as lobby areas.
1.41 Maintenance Obligations. The term "Maintenance Obligations" refers to the
Association's obligations and each Owner's obligations to perform (i) (as to the Association) all
maintenance required under the Association Maintenance Manual, (ii) any maintenance
obligations and schedules provided to an Owner or the Association, whether contained in any
warranty or otherwise; (iii) any commonly accepted maintenance practices intended to prolong
the life of the materials and construction of the Association Property, Common Area and Units,
as applicable; and (iv) any maintenance obligations and requirements set forth in this
Declaration, as updated and amended from time to time.
1.42 Majority of the Voting Power. The term a "Majority of the Voting Power"
means those Owners collectively owning a majority of the Square Footage within the Project,
and, so long as Declarant owns any portion of the Property, the Declarant.
1.43 Master Association. The term "Master Association" refers to the Fenton
Raceway Business Park Property Owners Association, a California non-profit mutual benefit
corporation, and any successor entity formed under the Master Declaration.
1.44 Master Declaration. The term "Master Declaration" refers to that certain
Declaration of Covenants and Grant of Easements for Fenton Raceway Business Park recorded
on October 24, 2005 as Document Number 2005-0917104 and any amendments thereto which
establishes certain easements, use restrictions, architectural review procedures and maintenance
obligations.
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1.45 Master Design Guidelines. The term "Master Design Guidelines" refers to those
Design Guidelines adopted pursuant to Section 4(a) of the Master Declaration which create
guidelines for Improvements including, without limitation, guidelines for Signage installed
within the Project.
1.46 Member. The term "Member" means every person or entity who holds a
membership in the Association.
1.47 Mortgage. The term "Mortgage" means any duly recorded mortgage or deed of
trust encumbering a Condominium in the Project.
1.48 Mortgagee. The term "Mortgagee" means a mortgagee under a Mortgage as well
as a beneficiary under a deed of trust.
1.49 Notice and Hearing. The term "Notice and Hearing" means the procedure which
gives an Owner notice of an alleged violation of the Governing Documents and the opportunity
for a hearing before the Board. •
1.50 Owner. The term "Owner" refers, individually or collectively, as the context
requires, to the record owner(s), whether one or more persons or entities, including Declarant, of
any Condominium excluding those having such interest merely as security for the performance
of an obligation.
1.51 .Parking Spaces. The term "Parking Spaces" means these parking spaces within
the Project, as shown on the Condominium Plan.
1.52 Project. The term "Project" means all of the Property, together with all
Improvements situated thereon.
1.53 Project Handbook. The term "Project Handbook" refers to the handbook that
contains the Architectural Guidelines and Rules and Regulations.
1.54 Property. The term "Property" means all of the real property described in
Exhibit "A" of this Declaration.
1.55 Regular Assessments. The term "Regular Assessments" means the assessments
that are levied pursuant to the provisions of Section 5.2 of this Declaration.
1.56 Rules and Regulations. The term "Rules and Regulations" refers to the rules and
regulations which may be established by the Association. The Rules and Regulations will be
included as part of the Project Handbook.
1.57 Shaft Spaces. The term "Shaft Spaces" means those portions of the two story
Buildings designated on the Condominium Plan as Shaft Spaces.
1.58 Signage. The term "Signage" refers to any signage, billboards, monument
signage, entry signage (if any), posters, banners, flags or any other signage medium of any type
or kind.
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1.59 Signage Program. The term "Signage Program" refers to the Signage Program
included in the Architectural Guidelines and Project Handbook and any amendments or
supplements to such Signage Program.
1.60 Special Assessments. The term "Special Assessments" means the assessments
that are levied pursuant to the provisions of Section 5.3 of this Declaration.
1.61 Square Footage. The term "Square Footage" means the gross floor area of a
Unit or Building, as determined by Declarant for purposes of calculating the Allocable Share.
1.62 Stairwell. The term "Stairwells" refers to those portions of the two story
Buildings designated on the Condominium Plan as stairwells.
1.63 State. The term "State" means the state of California.
1.64 Supplementary Condominium Plan. The term "Supplementary Condominium
Plan" means any Condominium Plan, which (i) supplements a previously recorded
Condominium Plan, (ii) corrects errors in the originally recorded Condominium Plan, or (iii) is
prepared after the completion of construction to show the actual "as-built" locations or
dimensions of any component of the Project.
1.65 Supplementary Declaration. The term "Supplementary Declaration" means
those certain declarations of covenants, conditions and restrictions, or similar instruments, which
may do any or all of the following: (i) identify areas referenced in this Declaration to be
maintained by the Association, (ii) impose additional covenants, restrictions and or obligations
on any Condominiums prior to conveyance of such Condominium to an Owner other than
Declarant, (iii) identify additional permitted uses, and/or (iv) make corrections to the provisions
of this Declaration or previously recorded Supplementary Declaration(s).
1.66 Unit. The term "Unit" means the elements of a Condominium which are not
owned in common with any other Owners of Condominiums in the Project, such Units and their
respective elements and boundaries being shown and described in the Condominium Plan. The
dimensions of a Unit are measured from the unfinished floor and walls and from an upper
horizontal plane as shown on the Condominium Plan, except as otherwise noted herein. The
Unit includes all Improvements situated within its boundaries, and includes, without limitation,
(i) interior walls (except interior bearing walls and/or columns), (ii) the interior undercoated
surfaces of bearing walls and perimeter'walls and floors, (iii) appliances, cabinets, interior doors,
interior windows and all electrical, heating, plumbing and other utility fixtures, (iv) the openings
and outlets of all Utility Facilities that are located partially within the Unit and partially in the
Common Area (such as electrical outlets), and that exclusively serve the Unit, and (v) all Utility
Facilities serving solely that Unit, whether located in the Unit or the Common Area. The
following are not part of any Unit: bearing walls, columns, exterior doors, exterior windows and
glass, roofs and foundations, and Utility Facilities that serve two or more Condominiums
wherever located. In interpreting deeds and plans, the then existing physical boundaries of a
Unit, whether in its original state or reconstructed in substantial conformance with the original
plans thereof, shall be conclusively presumed to be its boundaries rather than the boundaries
expressed in the Condominium Plan or any other recorded document, regardless of settling or
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lateral movements of the Building and regardless of minor variance between boundaries shown
on the Condominium Plan or any other recorded document and those of the Building.
1.67 Utility Facilities. The term "Utility Facilities" means all utility facilities
including intake and exhaust systems, storm and sanitary sewer systems, drainage systems,
HVAC units and utility services, domestic water systems, natural gas systems, electrical systems,
fire protection water and sprinkler systems, vacant conduits in utility rooms, vacant conduits
throughout the Association Property, main service telephone systems, satellite dishes, cable
television systems, telecommunications systems, water systems, sump pumps, central utility
services and all other utility systems and facilities reasonably necessary to service any
Improvement situated in, on, over and under the Project.
1.68 Voting Power. The term "Voting Power" refers to the total voting power of the
Association as set forth in Section 4.2, which is based on Square Footage.
ARTICLE 2
OWNERSHIP AND EASEMENTS
2.1 Ownership of Condominium. Ownership of each Condominium within the
Project shall include (a) fee title to a Unit, (b) an undivided interest in the Common Area of the
Building Module within which the Unit is situated as designated on the Condominium Plan
and/or described on the deed to the Condominium, (c) a membership in the Association and the
Master Association, and (d) subject to the terms of the Governing Documents, any easements
appurtenant to such Condominium over the Common Area and/or Association Property as
described in this Declaration, the Condominium Plan and the deed to the Condominium. Each
Condominium Owner shall have a non-exclusive easement for ingress and egress over the
Common Area of the Building Module in which the Unit is situated and over the Association
Property, subject to any Exclusive Use Easements and restrictions on areas described in this
Declaration, the Master Declaration and/or any Condominium Plan and any easements of record.
2.2 Delegation of Use. Any Owner entitled to the right and easement of use of the
Common Area and the Association Property may delegate such Owner's rights provided in this
Declaration to use of the Common Area and the Association Property to such Owner's tenants,
contract purchasers or subtenants who occupy such Owner's Condominium, subject to
reasonable regulation by the Board. An Owner who has made such a delegation of rights shall
not be entitled to use of the Common Area and the Association Property for so long as such
delegation remains in effect, other than such access rights as are directly related to the Owner's
rights and duties as landlord. Notwithstanding such delegation of the rights to use the Common
Area and Association Property, an Owner may not delegate to a Lessee any of its voting rights
under the Governing Documents, and no such delegation of use shall release an Owner from
being primarily liable and responsible for all obligations under this Declaration and the other
Governing Documents.
2.3 Easements. The ownership interests in the Common Area, Association Property,
and to the extent applicable, the Units described in this Article are subject to the easements
granted and reserved in this Declaration and in the Master Declaration. Each of the easements
reserved or granted under this Declaration shall be deemed to be established upon the recordation
of this Declaration and shall henceforth be deemed to be covenants running with the land for the
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use and benefit of the Owners, and their Condominiums, the Association and Association
Property, the Common Area and the Declarant superior to all other encumbrances applied against
or in favor of any portion of the Project. Individual grant deeds to Condominiums may, but shall
not be required to, set forth the easements specified in this Article.
2.3.1 Declaration Subject to Easements. Notwithstanding anything herein
expressly or impliedly to the contrary, this Declaration and the Project shall be subject to all
easements shown on the Final Map and the Condominium Plan, all easements reserved and
granted in the Master Declaration, and to all easements heretofore or hereafter granted by
Declarant for the installation and maintenance of utilities and drainage facilities that are
necessary for the Project, and all other easements of record.
2.3.2 Utilities. There are reserved and granted for the benefit of each Unit,
the Association Property and the Common Area, over, under, across and through the Project,
reciprocal, non-exclusive easements for the maintenance, repair and replacement of the Utility
Facilities. This easement for Utility Facilities shall include, for the two story Buildings, the right
of a second floor Unit Owner.to enter into the first floor Unit within such Owner's Building to
access the Common Area through the ceiling of such first floor Unit for the purpose of
connecting to any Utility Facilities located within the Common Area ("Utility Use"); provided,
the following conditions are satisfied: (i) any work by the Constructing Owner (as defined
below) shall have been approved as provided in Article 8 of this Declaration; (ii) at least thirty
(30) days prior to utilizing the easement granted herein, the Owner of the second story Unit
("Constructing Owner") shall provide the Association with a written statement describing the
need to utilize such easement, shall identify the proposed location of the Utility Use, the nature
of the service to be provided, and the anticipated commencement and completion dates for the
work ("Construction Notice"); (iii) the Constructing Owner shall, within five (5) business days
after delivery of such Construction Notice to the Association, provide a copy of the Construction
Notice to the Owner of the first floor Unit ("First Floor Unit Owner"); (iv) prior to commencing
any work, including any Emergency work, the Constructing Owner who undertakes such Utility
Use shall provide to the Association evidence of insurance coverage as required by Article 10 of
this Declaration; (v) within ten (10) days after receipt of the Construction Notice, the Association
and the First Floor Unit Owner shall approve the construction schedule for the performance of
such Utility Use, which schedule shall not be unreasonably withheld (it being acknowledged that
it shall be reasonable for the other Owner to disapprove any Utility Use constituting installation,
repairs or maintenance during business days from 7 A.M. to 6 P.M.); (vi) any construction
activities pursuant to such easement rights shall be performed so as not to unreasonably interfere
with access to and use of the Unit owned by the First Floor Unit Owner; (vii) the Constructing
Owner shall replace and restore all areas and facilities to the condition in which they were prior
to the performance of such Utility Use; and (viii) all costs, fees and expenses incurred as a result
of such Utility Use shall be borne solely by the Owner which undertakes such Utility Use. Each
Constructing Owner who undertakes such Utility Use agrees to indemnify, protect, defend and
hold harmless the First Floor Unit Owner and the Association from and against all Claims,
arising out of or resulting from the exercise of the right to install, maintain and operate the Utility
Facilities; provided, however, the foregoing obligation shall not apply to Claims based on the
gross negligence or the willful misconduct of the First Floor Unit Owner or the Association.
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2.3.3 Encroachment and Support. There are hereby reserved and granted
for the benefit of each Unit, the Common Area and the Association Property over, under, across
and through the Project, non-exclusive easements for encroachment, support, occupancy and use
of such portions of the Units, Association Property and/or Common Area as are encroached
upon, used and occupied as a result of any original construction, design, accretion, erosion,
addition, deterioration, decay, errors in original construction, movement, settlement, shifting or
subsidence of any Building, structure, or other Improvements or any portion thereof, or any other
cause. In the event any portion of the Project is partially or totally destroyed, the encroachment
and support easement shall exist for any replacement structure that is rebuilt pursuant to the
original construction design. The easement for the maintenance of the encroaching Improvement
shall exist for as long as the encroachment exists; provided, however, that no valid easement of
encroachment shall be created due to the willful misconduct of the Association or any Owner.
Any easement of encroachment may, but need not be, cured by repair and restoration of the
structure.
2.3.4 Association Easement. The Association shall have an easement over
the Common Area for performing its duties- and exercising its powers described in this
Declaration.
2.3.5 Easements for Common Area and Association Property. Subject to
the provisions of the Governing Documents, every Owner of a Condominium shall have, for
itself and such Owner's Invitees, a nonexclusive easement of access, ingress, egress, use and
enjoyment of, in, to and over the Association Property and the Common Area of the Building
Module in which the Unit is situated.
(a) Suspend Rights of Members. The Board shall have the right,
after Notice and Hearing, to temporarily suspend an Owner's rights as a Member pursuant to the
terms of this Declaration.
(b) Dedicate or Grant Easements. The Association shall have the
right, without the consent of the Owners, to dedicate and/or grant easements over all or any
portion of the Common Area and the Association Property.
(c) Control Parking. Subject to the provisions of this Declaration,
the Association shall have the right to control parking within the Project and to promulgate rules
and regulations to control parking in a manner consistent with this Declaration.
(d) Exclusive Use Easements. Any Exclusive Use Easement granted
to an Owner over a portion of the Common Area or Association Property shall be for the benefit
of such Owner and such Owner's Lessee's and Invitees and in no event shall any other Owner
have a right of ingress or egress over such Exclusive Use Easement Area.
2.3.6 Easement To Declarant. Declarant shall have and hereby expressly
reserves the easements necessary for Declarant to exercise its rights set forth in Article 9 of this
Declaration.
2.4 Creation of Designated Exclusive Use Easement Area Wails or Floors. For an
original sale by Declarant to an Owner, so long as two contiguous Units are owned by the same
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Owner, no demising wall is required to be constructed between the Units and any existing
demising wall may be removed subject to the limitations set forth below. In addition, the Owner
or Owners of two (2) Units which are contiguous and have a demising wall between them may
construct, at such Owner's expense and in accordance with all Applicable Laws, a means of
access (such as a doorway) between said Units, provided however, that if the two (2) contiguous
Units are owned by different Owners, the two (2) Owners must consent to such connection of the
Units in writing. The Owner(s) of contiguous Units who has removed a demising wall or
connected them as described above shall have an easement for ingress, egress and passage
through that portion of the Common Area which has been pierced in the process of connecting
the contiguous Units or constructing said means of access. The easement shall exist only for so
long as the connected Units continue to be owned by the same Owner or Owners who have
consented to such connection. If and when an Owner of such connected Units sells, transfers, or
conveys one (1) of the Units, prior to the recordation of the deed or instrument of transfer, the
means of access shall be sealed off, a demising wall shall be properly installed or completely
reconstructed to its original as-built condition, as the case may be, and the easement that existed
during the period that the Units were joined by virtue of such access shall automatically
terminate unless the subsequent Owner of the Unit being sold consents to the connection of the
Units in writing. No bearing wall shall be removed or altered; and no Utility Facilities shall be
removed, altered or damaged in the course of the construction described in this Section. No
modification to any portion of the Common Area shall be made which shall affect the structural
integrity of the Project or impair any other Owner's reasonable use of such Common Area, or the
utilities that may be located therein, or the value of the Project. All costs, and expenses of such
modifications, and subsequent demising wall construction or restoration of said modifications
shall be borne by the Owner or Owners of the Units so joined. For subsequent sales, subject to
the provisions of Article 8 of this Declaration, the Association shall have the right to grant to an
Owner or Owners who acquires fee title to two (2) or more adjacent Units, without amending
this Declaration or the Condominium Plan, an Exclusive Use Easement on and through any
demising wall(s) separating two (2) or more Units and the right to alter, modify or remove such
demising walls subject to the consent of the Declarant and conformance with the requirements of
the Board, pursuant to the provisions of Article 8. If Owners receive the required approvals
hereunder and combine two (2) or more adjacent Units, such Units shall be treated as separate
Units for all purposes hereunder, including separate assessments for each individual Unit and
compliance with California Government Code Section 55410 et seq.
2.5 Elevator Easements. The two story Buildings in the Project have Exclusive Use
Elevator Easements shown on the Condominium Plan which are reserved for the benefit of the
Owners located on the second floor of a two story Building. If an elevator has not been installed
within the Exclusive Use Elevator Easement, the Owner of the second story shall have, in
accordance with the provisions set forth below, the right, subject to compliance with Article 8 to
install and upon installation, the obligation to maintain the elevator shaft, elevator equipment
room and elevator. If the Owner of the second story elects to exercise its rights hereunder, then
the same provisions set forth in Section 2.3.2 relating to Utility Use shall apply, except that the
Construction Notice shall only be required to include a description of the work to be performed
and the anticipated dates for commencement and completion of the work and, in addition, since
the installation of an elevator shaft and elevator may impact the structural components of the
Building, the approval of the Association pursuant to Article 8 shall be required for the
installation of the elevator shaft and elevator but such approval shall not be withheld so long as
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the structural integrity of the Building is not being impaired. As provided in Article 7 below, the
Owner of the Condominium located on the second floor of a two story Building shall be
responsible for installing, maintaining, repairing and replacing all Improvements, including
without limitation any utilities, within the Exclusive Use Elevator Area. In no event shall the
Association have any obligation to install, repair, replace or maintain the Exclusive Use Elevator
Area, any elevator installed in the Exclusive Use Elevator Area or elevator equipment room, if
any.
ARTICLES
THE ASSOCIATION
3.1 The Organization. The Association is a nonprofit mutual benefit corporation to
be formed under the Nonprofit Mutual Benefit Law of the State of California prior to the
conveyance of the first Condominium to an Owner. On the conveyance of the first
Condominium to an Owner, the Association shall be charged with the duties and invested with
the powers set forth in this Declaration and the other Governing Documents.
3.2 Association Action; Board of Directors and Officers; Members' Approval.
Except as to matters requiring the approval of Members as set forth in the Governing
Documents, the affairs of the Association shall be conducted by the Board and such officers as
the Board may elect or appoint. Such election or appointment shall be in accordance with the
Governing Documents. Except as otherwise provided in this Declaration, the Articles and the
Bylaws, all matters requiring the approval of Members shall be deemed approved if (i) a
Majority of the Voting Power assent to them by written consent as provided in the Bylaws, or
(ii) such matters are approved by a Majority of the Voting Power of the Owners present at a
meeting at which a quorum of Members is present (and which is held in accordance with the
Bylaws).
3.3 APPOINTMENT OF ASSOCIATION AS AGENT. EACH OWNER, BY
ACCEPTANCE OF A DEED AGREES THAT EACH OWNER HAS NO DIRECT RIGHTS
UNDER THE MASTER DECLARATION AND ONLY HAS SUCH RIGHTS THROUGH
THE ASSOCIATION AND ONLY FOR SO LONG AS AN OWNER OWNS A
CONDOMINIUM AND IS A MEMBER OF THE ASSOCIATION. NOTWITHSTANDING
THE FOREGOING, TO THE EXTENT THAT IT IS DETERMINED THAT AN OWNER HAS
ANY RIGHTS UNDER THE MASTER DECLARATION, THEN EACH OWNER, BY
ACCEPTANCE OF A DEED, HEREBY IRREVOCABLY DELEGATES AND APPOINTS
THE ASSOCIATION TO ACT ON ITS BEHALF AS AN "OWNER" AS DEFINED UNDER
THE MASTER DECLARATION. EACH OWNER OF A CONDOMINIUM IN THE
PROJECT, BY ACCEPTFNG A DEED TO THE CONDOMINIUM, SHALL BE DEEMED TO
HAVE (A) AGREED AND ACKNOWLEDGED THAT THE OWNERS HAVE NO RIGHTS
TO VOTE ON ANY ISSUES UNDER THE MASTER DECLARATION AND (B) THAT ALL
APPROVALS AND RIGHTS UNDER THE MASTER DECLARATION SHALL BE
EXERCISED, IF AT ALL, BY THE ASSOCIATION AND HEREBY APPOINTS THE
ASSOCIATION AS ITS AGENT TO ACT ON BEHALF OF ITSELF AND EACH OF ITS
MORTGAGEES, OPTIONEES, GRANTEES, LICENSEES, LESSEES, TENANTS, HEIRS,
ADMINISTRATORS, EXECUTORS, LEGAL REPRESENTATIVES, SUCCESSORS AND
ASSIGNS. EACH OWNER ACKNOWLEDGES THAT THE APPOINTMENT OF THE
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ASSOCIATION AS AN OWNER UNDER THE MASTER DECLARATION TO ACT ON
BEHALF OF THE OWNERS UNDER THE MASTER DECLARATION WAS A MATERIAL
INDUCEMENT TO THE DECISION OF THE SELLER TO CONVEY THE PROPERTY AND
PERMIT THE DEVELOPMENT AND CONSTRUCTION OF THE CONDOMINIUMS ON
THE PROPERTY AND EACH OWNER, BY ACCEPTANCE OF A DEED, ACCEPTS AND
AGREES TO THE APPOINTMENT OF THE ASSOCIATION AS AN OWNER UNDER THE
MASTER DECLARATION. EACH OWNER FURTHER ACKNOWLEDGES THAT THE
APPOINTMENT OF THE ASSOCIATION AS AN OWNER UNDER THE MASTER
DECLARATION IS A BENEFIT TO ALL OF THE OWNERS AND THE PROJECT SINCE IT
CREATES A UNIFORM APPROACH TO THE RESOLUTION OF ALL ISSUES UNDER
THE MASTER DECLARATION.
3.4 Powers of the Association. The Association shall have all the powers of a
nonprofit corporation organized under the Nonprofit Mutual Benefit Corporation Law of
California subject only to such limitations on the exercise of such powers as are set forth in the
Governing Documents. It shall have the power to do any lawful thing that may be authorized,
required, or permitted to be done by the Association under the Governing Documents, and to do
and perform any act that may be necessary or proper for or incidental to, the exercise of any of
the express powers of the Association, including, without limitation, the powers set forth below.
3.4.1 Assessments. The Association shall have the power to establish, fix,
and levy assessments against the Owners and to enforce payment of such assessments, in
accordance with the provisions of this Declaration.
3.4.2 Right of Enforcement. The Association in its own name and on its
own behalf, can commence and maintain actions for damages or to restrain and enjoin any actual
or threatened breach of any provision of the Governing Documents or any resolutions of the
Board, and to enforce by mandatory injunction, or otherwise, all of these provisions. In addition,
the Association can temporarily suspend the membership rights and privileges or can assess
monetary penalties against any Owner or other person entitled to exercise such rights or
privileges for any violation of the Governing Documents, in accordance with the procedures set
forth in this Declaration and in the Bylaws.
3.4.3 Delegation of Powers, Professional Management. The Association
can delegate its powers, duties, and responsibilities to committees or employees, including a
professional managing agent. The Association is specifically authorized to employ Declarant, or
an affiliate of Declarant, as property manager for the Association.
3.4.4 Association Rules. The Association shall have the power to adopt,
amend and repeal Rules and Regulations as it deems reasonable. The Rules and Regulations
shall govern the use of the Common Area and the Association Property by all Owners and their
Invitees. However, the Rules and Regulations shall not be inconsistent with or materially alter
any provisions of the Governing Documents. A copy of the Rules and Regulations, as adopted,
amended or repealed, shall be mailed or otherwise delivered to each Owner. If there is any
conflict between any of the Rules and Regulations and any other provisions of this Declaration,
or the other Governing Documents, the conflicting Rules and Regulations shall be deemed to be
superseded by the provisions of the other Governing Documents.
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3.4.5 Right of Entry and Enforcement. Except in the case of emergencies
in which case no prior notice need be given, the Association or any authorized representative
thereof shall have the right, upon 48 hours prior notice and during reasonable hours, to enter into
a Unit for the purpose of construction, maintenance or Emergency repair for the benefit of the
Common Area, Association Property, or the other Condominiums, or to perform its obligations
under this Declaration, or to cure any default by an Owner under this Declaration. Such persons
shall not be deemed guilty of trespass by reason of such entry. If any such repair or maintenance
is due to the failure of an Owner to perform its obligations hereunder, the cost of such
maintenance or repair shall be assessed against said Owner as an Enforcement Assessment in
accordance with the provisions of the Article hereof entitled "Assessments." Any entry and
repair performed by the Association pursuant to this Section 3.4.5 shall be performed so as not to
unreasonably interfere with access to and use of the Unit by the Owner of such Unit.
3.4.6 Easements and Rights of Way. The Association may grant and
convey to any third party easements and licenses for use and rights of way in, on, over or under
the Association Property conveyed or otherwise transferred to said Association or under its
jurisdiction in accordance with the provisions of this Declaration. The affirmative vote of a
Majority of the Voting Power shall be required before the Board may grant exclusive use of any
portion of the Association Property to any Member unless the grant of exclusive use is one of the
exceptions to the Member approval requirement listed in California Civil Code Section 1363.07.
A vote on a proposed grant of exclusive use shall be by secret ballot in accordance with the
procedures set forth in California Civil Code Section 1363.03 and the rules adopted by the Board
pursuant thereto.
3.4.7 Capital Improvements. Subject to the terms of this Declaration, the
Association may approve the construction, installation or acquisition of a particular capital
Improvement to the Common Area and/or the Association Property.
3.4.8 Other Property. The Association may acquire and hold, as trustee for
the benefit of its Members, tangible and intangible personal property and may dispose of the
same by sale or otherwise.
3.4.9 Contract for Goods and Services. The Association shall have the
power to contract for goods and services for the benefit of the Project necessary for the
Association to perform its duties and obligations hereunder. The ability to contract for services
shall include the ability to contract for security services, provided, however, that in no event shall
the Association be required to obtain such services, nor shall any contract with such security
service impose any additional liability on the Association beyond that which the Association
would have in the absence of such a contract.
3.4.10 Rights Regarding Title Policies. If any title claims regarding the
Association Property are made by any third party, the Association shall have the power to pursue
such claims on any title insurance policy held by the Owners or the Association and each Owner
hereby delegates, on a non-exclusive basis, and assigns to the Association any rights it may have
under its title insurance policies to the extent that the title claim relates to the Association
Property.
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3.4.11 Claims and Actions. Subject to the provisions of this Declaration, the
Association shall have the power, but not the duty, to initiate, defend, settle or intervene in
mediation, arbitration, judicial or administrative proceedings on behalf of the Association in
matters pertaining to (a) the application or enforcement of this Declaration and (b) any and all
Claims, causes of action, damages and suits for defects relating in any way to the design or
construction of the Association Property or Common Area or any portion thereof, on behalf of
the Owners; provided that no action shall be taken pursuant to subsection (b) without first
obtaining the consent of a Majority of the Voting Power, and (ii) notifying the Owners and the
Declarant of the initiation of such proceedings as required pursuant to Section 3.5.7 below.
3.5 Duties of the Association. In addition to the powers delegated to it by its
Articles and the Bylaws, and without limiting their generality, the Association, acting by and
through the Board, has the obligation to perform each of the duties set forth below.
3.5.1 Taxes and Assessments. The Association shall pay all real and
personal property taxes and assessments and all other taxes levied against the Association
Property, personal property owned by the Association or against the Association, if any. Such
taxes and assessments may be contested or compromised by the Association if they are paid or a
bond insuring payment is posted before the sale or the disposition of any property to satisfy the
payment of such taxes. To the extent any taxes or assessments for the Project including any
Association Property are not segregated or Declarant or the Association receives a tax bill which
covers any Condominiums, then the Association or Declarant, as applicable, shall allocate such
taxes based upon the Allocable Share used to pay Regular Assessments except that if the tax bill
covers less than all of the Units subject to this Declaration, then the Declarant or the Association
shall allocate the taxes and assessments based upon the Square Footage which a Unit bears to the
Square Footage of all the Units shown on the tax bill, which determination by Declarant or the
Association shall be binding on the Owners and not subject to challenge.
3.5.2 Utilities for Association Property. The Association shall have the
duty to acquire, provide and pay for water, sewer, refuse and rubbish collection, electrical,
telephone, gas and other necessary utility services for the Association Property.
3.5.3 Life Safety Systems. The Association shall have the duty to provide
for the maintenance and monitoring of those fire sprinkler and fire monitoring systems installed
by Declarant for each Building.
3.5.4 Utilities Suppliers. The Association shall have the duty to permit
utility suppliers and other providers of any telecommunications or other services to use portions
of the Common Area and/or the Association Property reasonably necessary to the ongoing
development and operation of the Project.
3.5.5 Maintenance of Project. The Association shall maintain and/or
replace and repair the Common Area and Association Property, and any other portions of the
Project described in Article 7 pursuant to the provisions of this Declaration.
3.5.6 Insurance. The Association shall obtain, from reputable insurance
companies licensed to do business in California and maintain the insurance described in the
Article of this Declaration entitled "Insurance."
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3.5.7 Notice Prior to Filing Claim. The Association shall notify all
Owners and the Declarant of any litigation filed, or other Claims made pursuant to the provisions
of Section 15.4 of this Declaration, for or on behalf of the Association relating to any Disputes
(as defined in Section 15.4 below). Such notice shall specify, at a minimum, all of the matters
set forth in California Civil Code Section 1368.5.
3.5.8 Refuse and Rubbish Collection. The Association shall provide
refuse and rubbish collection for the Owners, which cost shall be included as a Common
Expense. The Association shall provide receptacles for the collection of recyclable materials.
The Association may enter into contracts and/or leasing agreements for trash pickup, disposal
and rental of trash disposal equipment. Owners may make arrangements for additional refuse or
rubbish collection provided that any such arrangements must be approved by the Board in
writing, which approval may be withheld in the Board's sole and absolute discretion.
3.5.9 Financial Matters. The Association shall have the duty to prepare
annual budgets, reports, balance sheets and operating statements for the Association as required
under this Declaration and the.Bylaws and Applicable Laws.
3.5.1.0 Warranties. The Association shall comply with the terms of any
warranty in favor,of the Association for any equipment or facilities within the Association
Property or Common Area. The Association acknowledges that certain warranties require the
Association to maintain certain maintenance contracts in effect and, to the extent the Board
discontinues such maintenance contracts, the effectiveness of the warranty may be impaired or
eliminated.
3.5.11 Use of Proceeds to Repair. In the event the Association receives, on
its own behalf or for the benefit of the Owners, any proceeds as a result of any construction
defect or other Claims or litigation brought by the Association, then the Association shall apply
such proceeds first for the purpose of repairing such defects or replacing reserve funds
previously utilized by the Association to cause such repairs and then to the costs of such
litigation. Any excess proceeds shall be applied as determined by the Board, subject to any
requirements established by the non-profit mutual benefit laws of the State of California and any
other Applicable Laws.
3.6 Personal Liability. No member of the Board, or of any committee of the
Association, or any officer of the Association, or any manager, or Declarant, or any agent or
employee or consultant of Declarant, (each a "Management Party"), shall be personally liable
to any Owner, or to any other party, including the Association, for any act or omission of any
Management Party if such person has, on the basis of such information as may be possessed by
him or her, acted in good faith without willful, wanton or gross misconduct within the scope of
the person's Association duties (collectively, an "Official Act"). California Civil Code
Section 1365.7, as drafted as of the date of recordation of this Declaration, does not apply to
common interest developments that are not "exclusively residential." The Project contains only
commercial condominiums. However, the criteria and requirements set forth in California Civil
Code Section 1365.7 are hereby incorporated herein by reference, and shall apply to the
Management Parties, regardless of the fact that the Project includes office condominiums.
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3.6.1 Indemnity. The Association has the power and duty to indemnify,
defend, protect and hold harmless each Management Party for all damages, and expenses
incurred (including, without limitation, reasonable attorneys' fees and costs), and satisfy any
judgment or fine levied as a result of any action or threatened action brought because of an act or
omission what such person reasonably believed was an Official Act. Management Parties are
deemed to be agents of the Association when they are performing Official Acts for purposes of
obtaining indemnification from the Association pursuant to this Section. The entitlement to
indemnification under this Declaration inures to the benefit of the estate, executor, administrator
and heirs of any person entitled to such indemnification. The Association has the power, but not
the duty, to indemnify any other person acting as an agent of the Association for damages
incurred, pay expenses incurred, and satisfy any judgment or fine levied as a result of any action
or threatened action because of an Official Act. The Association also has the power, but not the
duty, to contract with any person to provide indemnification in addition to any indemnification
authorized by law on such terms and subject to such conditions as the Association may impose.
ARTICLE 4
MEMBERSHIP AND VOTING
RIGHTS IN ASSOCIATION
4.1 Membership.
4.1.1 Qualifications. Each Owner of a Condominium which is subject to
assessment, including Declarant, shall be a Member of the Association. Ownership of a
Condominium or interest in it shall be the sole qualification for membership in the Association.
Each Owner shall remain a Member of the Association until its ownership interest in the
Condominium in the Project ceases at which time its membership in the Association shall
automatically cease.
4.1.2 Members* Rights and Duties. Each Member shall have the rights,
duties, and obligations set forth in the Governing Documents, as the same may from time to time
be amended.
4.1.3 Transfer of Membership. The Association membership of each
person or entity who owns, or owns an interest in, one or more Condominiums shall be
appurtenant to each such Condominium, and shall not be assigned, transferred, pledged,
hypothecated, conveyed or alienated in any way except upon a transfer of title to each such
Condominium or interest in it and then only to the transferee. Any attempt to make a prohibited
transfer shall be void. Any transfer of title to a Condominium or interest in it shall operate
automatically to transfer the appurtenant membership right in the Association to the new Owner.
Notwithstanding the foregoing. Declarant's Class B membership (as defined below) may not be
transferred except to a successor to Declarant's rights to all or a portion of the Project. Transfer
of Declarant's Class B membership shall be evidenced by the recordation in the Office of the
County Recorder of an assignment of Declarant's rights which specifically assigns such
Declarant's Class B membership rights.
4.1.4 Commencement of Voting Rights. An Owner's right to vote,
including Declarant's right to vote, shall not vest until Regular Assessments have been levied
upon such Owner's Condominium as provided in this Declaration. All voting rights shall be
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subject to the restrictions and limitations provided for herein and in the other Governing
Documents. Notwithstanding the foregoing, this Section shall not apply to any exercise by
Declarant of its rights as a Class B Member.
4.2 Number of Votes. The Association shall have 2 classes of voting membership as
described below. The voting rights described in Sections 4.2.1 and 4.2.2 below shall constitute
the Voting Power of the Association.
4.2.1 Class A Members. Class A Members shall be all Owners, except
Declarant. Each such Owner shall be entitled to a vote, which vote shall be equal to each
Owners Allocable Share.
4.2.2 Class B Member. The Class B Member shall be Declarant. Declarant
shall be entitled to appoint a majority of the members of the Board until Declarant no longer
owns any Condominiums in the Property. Board Members appointed by Declarant pursuant to
Declarant's Class B membership do not have to be Owners.
4.2.3 Joint Owner Votes. If there is more than one Owner of a
Condominium, the voting rights for each Condominium may not be cast on a fractional basis. If
the joint Owners of a Condominium are unable to agree among themselves as to how their voting
rights shall be cast, they shall forfeit the vote on the matter in question. Upon the close of
escrow on a Condominium by more than one Owner, the Owners of such Condominium must
notify the Association in writing of the one Owner who will exercise the voting rights for such
Condominium ("Voting Owner"). In the event such Owners do not notify the Association in
writing in accordance with this Section 4.2.3, the Owner shall not be entitled to exercise their
vote in writing, unless and until they deliver written notice to the Association designating the
Voting Owner and until such designation is made, the Association can cast the votes, if it so
elects, for such Condominium. In the event the Owners desire to designate a different Voting
Owner, such request to change the Voting Owner must be made in writing to the Association. If
any Owner other than the Owner designated in the records of the Association as the Voting
Owner exercises the voting rights of a particular Condominium, such vote shall not be counted
and shall be deemed void.
ARTICLE 5
ASSESSMENTS
5.1 Creation of Lien and Personal Obligation for Assessments. Declarant, for
each Condominium owned within the Property, hereby covenants, and each Owner of a
Condominium by acceptance of a deed therefor, is deemed to covenant and agrees to pay to the
Association all assessments levied pursuant to the provisions of this Declaration. All
assessments levied hereunder. together with interest, costs and reasonable attorneys' fees
assessed hereunder, shall be a charge on the land and shall be a continuing lien upon the
Condominium against which each such assessment is made, the lien to be effective upon
recordation of a notice of delinquent assessments. Each such assessment, together with interest,
costs and reasonable attorneys' fees, shall also be the personal obligation of the person who was
the Owner of such Condominium at the time when the assessment fell due and shall, except with
respect to any Mortgagee as provided in Section 5.11.8, bind its heirs, devisees, personal
representatives and assigns. No such assumption of personal liability by a successive Owner
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(including a contract purchaser under an installment land contract) shall relieve any Owner
against whose Condominium the lien was levied from personal liability for delinquent
assessments. If more than one person or entity was the Owner of a Condominium, the personal
obligation to pay such assessment or installment respecting such Condominium shall be both
joint and several.
5.2 Regular Assessments.
5.2.1 Payment of Regular Assessments. Regular Assessments for each
Fiscal Year shall be established when the Board approves the budget for that Fiscal Year, which
budget shall be prepared in accordance with the provisions of the Governing Documents.
Regular Assessments shall be levied on a Fiscal Year basis. Based on such budget, each Owner
shall, in advance, on the first day of each month during the term of this Declaration pay to the
Association as such Owner's Regular Assessment, one-twelfth (1/12th) of such Owner's
Allocable Share of Common Expenses for such calendar year; provided, however, that the
Association shall have the ability to bill the Owners quarterly, in which event each Owner shall
on the first day of each third month during the term of this Declaration pay, in advance, to the
Association as such Owner's Regular Assessment, one-fourth (l/4th) of such Owner's Allocable
Share of Common Expenses for such calendar year. Any excess funds collected by the
Association during a calendar year shall be proportionally deducted from each Owner's
Allocable Share of Common Expenses for the following calendar year.
5.2.2 Budgeting. Each year the Board shall prepare, approve and make
available to each Member a budget for the Common Expenses not less than 45 days nor more
than 60 days prior to the beginning of the Fiscal Year or as otherwise required. The Association
shall provide notice by first class mail to the Owners of any increase in the Regular Assessments
or Special Assessments of the Association, not less than 30 days and not more than 60 days
prior to the increased assessment becoming due and payable.
5.2.3 Non-Waiver of Assessments. If, before the expiration of any Fiscal
Year, the Association fails to fix Regular Assessments for the next Fiscal Year, the Regular
Assessment established for the preceding year shall continue until a new Regular Assessment is
fixed.
5.3 Special Assessments. If the Board determines that the estimated total amount of
funds necessary to defray the Common Expenses of the Association for a given Fiscal Year is or
will become inadequate to meet expenses for any reason, including without limitation,
unanticipated delinquencies, costs of construction, unexpected repairs or replacements of capital
improvements on, damage and destruction or condemnation of, the Common Area and the
Association Property, the Board may levy a Special Assessment chargeable to each Owner based
upon such Owner's Allocable Share to defray such costs. If the Special Assessment exceeds in
the aggregate 5% of the budgeted gross expenses of the Association for that Fiscal Year, it must
be approved by a Majority of the Voting Power. The Board may, in its discretion, prorate such
Special Assessment over the remaining months of the Fiscal Year or levy the assessment
immediately against each Condominium.
5.4 Capital Improvement Assessment. In addition to any other assessments
provided for hereunder, the Association may levy a Capital Improvement Assessment for the
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purpose of defraying, in whole or in part, the cost of any construction or replacement of a capital
improvement in accordance with the provisions of Section 3.4.7. Capital Improvement
Assessments shall be due and payable by all Owners in such installments and during such period
or periods as the Board shall designate.
5.5 Reconstruction Assessments. Reconstruction Assessments may be levied by the
Board under the conditions and in the manner specified in the Article hereof entitled
"Destruction of Improvements and Condemnation."
5.6 Enforcement Assessments. The Board may incur and levy an Enforcement
Assessment against any Owner who causes damage to the Common Area and/or the Association
Property or for bringing an Owner or such Owner's Condominium into compliance with the
provisions of the Governing Documents and/or any other charge designated an Enforcement
Assessment in the Governing Documents, together with attorneys' fees, interest and other
charges related thereto as provided in this Declaration. If the Board undertakes to provide
materials or services which benefit individual Owners, then such Owners in accepting such
materials or services agree 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 Hearing as required by the
Governing Documents (and that satisfies California Corporations Code Section 7341 and
California Civil Code Section: 1363), the 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 herein provided for nonpayment of an
assessment. A hearing committee may be established by the Board to administer the foregoing.
Notwithstanding any other provision in this Declaration to the contrary, except as provided in
Section 5.12 of this Declaration, Enforcement Assessments are assessments but they may not
become a lien against the Owner's Condominium that is enforceable by a power of sale under
California Civil Code Sections2924, 2924b and 2924c. This restriction on enforcement is not
applicable to late payment penalties for delinquent assessments or charges imposed to reimburse
the Association for loss of interest or for collection costs, including reasonable attorneys' fees,
for delinquent assessments.
5.7 Limitation on Assessments. Any assessments levied pursuant to this Declaration
or .any other Governing Document shall not exceed the maximum amount permitted by
Applicable Law.
5.8 Allocation of Assessments to Condominiums. Each Owner of a Condominium
as to which assessments have commenced shall pay its Allocable Share of Regular Assessments.
Each Owner acknowledges that there are many different measurement standards for a
Condominium and that Declarant shall have the sole right to adopt its measurement standard.
The measurements for purposes of calculating Square Footage shall not affect any other
measurements made by an Owner or Lessee for its own purposes. By accepting a deed to its
Condominium, each Owner acknowledges and agrees that it shall have no right to challenge its
Allocable Share of assessments, as determined by the Declarant. Special Assessments,
Reconstruction Assessments and Capital Improvement Assessments shall be allocated in the
same manner as Regular Assessments. Enforcement Assessments shall be levied directly to the
individual Condominiums in a manner consistent with the provisions of this Declaration.
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5.9 Date of Commencement of Regular Assessments; Due Dates. The Regular
Assessments provided for herein shall commence as to all Condominiums subject to this
Declaration on the first day following the conveyance of the first Condominium to an Owner by
Declarant. Upon the close of escrow by an Owner of a Condominium, such Owner shall be
responsible for payment of all assessments subsequently levied against such Owner's
Condominium.
5.10 Notice and Assessment Installment Due Dates. A single 10 day prior written
notice of each Special Assessment and Capital Improvement Assessment shall be given to each
Owner. The due dates for the payment of installments normally shall be the first day of each
month unless some other due date is established by the Board. Each installment of Regular
Assessments, Special Assessments and Capital Improvement Assessments shall become
delinquent if not paid within 15 days after its due date. There shall accrue with each delinquent
installment a late charge, interest charge to be set by the Board and reasonable costs of
collection, including attorneys' fees, which shall not, in any event, exceed the maximum rates
permitted under California Civil Code Section 1366.
5.11 Collection of Assessments. Liens.
5.11.1 Right to Enforce. The right to collect and enforce assessments is
vested in the Board acting for and on behalf of the Association. The Board or its authorized
representative can enforce the obligations ofthe Owners to pay assessments provided for in this
Declaration by commencement and maintenance of a suit at law or in equity, or the Board may
foreclose by judicial proceedings or through the exercise of the power of sale pursuant to
Section 5.11.6 enforce the lien rights created. Suit to recover a money judgment for unpaid
assessments together with all other Additional Charges shall be maintainable without foreclosing
or waiving the lien rights. Notwithstanding anything else to the contrary herein, except for
monetary penalties imposed by the Association to reimburse the Association for costs incurred
by the Association in the repair of damage to Association Property and facilities for which the
Member was allegedly responsible, which may become a lien on the Owner's Condominium, a
monetary penalty imposed by the Association as a disciplinary measure for failure of a Member
to comply with the Governing Documents or in bringing the Member and the Member's
Condominium into compliance with the Governing Documents may not be characterized nor
treated as an assessment which may become a lien against the Member's Condominium
enforceable by a sale of the interest hereunder. The limitation in the preceding sentence
however, does not apply to any Additional Charges.
5.11.2 Notice of Assessments and Foreclosure. The Association shall
distribute a written notice regarding assessments and foreclosure as set forth in California Civil
Code Section 1365.1 during the 60 day period immediately preceding the beginning of the
Association's Fiscal Year.
5.11.3 Delinquent Assessments. In collecting delinquent assessments, the
Association shall comply with the requirements of California law, including without limitation,
California Civil Code Section 1367.1. As of the date of this Declaration, such laws require that,
among other things, before the Association records a lien against the Owner's Condominium, the
Association: (i) notify the delinquent Owner of certain matters, and (ii) offer and, if requested by
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the Owner, participate in, dispute resolution procedures pursuant to the Association's "meet and
confer" program required in California Civil Code Sections 1363.810 through 1363.850.
5.11.4 Creation of Lien. If there is a delinquency in the payment of any
assessment, or installment on a Condominium, any amounts that are delinquent, together with the
late charge described in California Civil Code Section 1366 and interest at the rate permitted in
such Section, and all costs that are incurred by the Board or its authorized representative in the
collection of the amounts, including reasonable attorneys' fees, shall be a lien against such
Condominium upon the recordation in the Office of the County Recorder of a notice of
delinquent assessment as provided in and subject to the requirements of, California Civil Code
Section 1367.1.
5.11.5 Assignment. The Association may not voluntarily assign or pledge
the Association's right to collect payments or assessments, or to enforce or foreclose a lien to a
third party except where provided under California Civil Code Section 1367.1(g).
5.11.6 Notice of Default; Foreclosure. The Board can record a notice of
default and, subject to the requirements and limitations of California Civil Code Section 1367.4,
can cause the Condominium with respect to which a notice;of default has been recorded to be
sold either in the same manner as a sale is conducted under.California Civil Code Sections 2924,
2924b and 2924c or through judicial foreclosure as provided in California Civil Code Section
1367.1. However, as a condition precedent to the holding of "any such sale under Section 2924c,
appropriate publication shall be made. In connection with any such sale, the Board is authorized
to appoint a trustee for purposes of conducting the sale. If a-delinquency is cured before sale of
the Condominium or before completing a judicial foreclosure, or if it is determined that a lien
previously recorded against a Condominium was recorded in error, the Board shall apply
payments and follow the procedures set forth in California Civil Code Section 1367.1. 'On
becoming delinquent in the payment of any assessments or installments, each delinquent Owner
shall be deemed to have absolutely assigned all rent, issues and profits of his or her
Condominium to the Association and shall further be deemed to have consented to the
appointment of a receiver (which appointment may, at the election of the Association, be
enforced by the Association through specific performance). The Association, acting on behalf of
the Owners, shall have the power to bid upon the Condominium at foreclosure sale and to
acquire, hold, lease, mortgage and convey the Condominium and vote as an Owner of the
Condominium.
5.11.7 Payment of Assessments. Any payment of sums due under this
Article shall first be applied to assessments owed, and only after assessments owed have been
paid in full shall the payments be applied to the fees and costs of collections, attorney's fees, late
charges or interest. If an Owner requests a receipt after payment of a delinquent assessment, the
Association shall provide a receipt which sets forth the date of payment and the individual who
received such payment.
5.H.8 Notice to Mortgagees of Right to Cure. If the Board files a Notice of
Delinquent Assessment as provided above, it shall give notice of such filing to any Mortgagee
which shall have given written notice to the Board of its desire to receive such notice. Such
Mortgagee shall have the right, but not the obligation, both before and for 60 days after notice of
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the recording of the Association's lien, to cure such defaults, including the payment of interest
and other charges as provided herein.
5.12 Subordination of Lien to First Mortgages. When a Notice of Delinquent
Assessment has been recorded, such assessment shall constitute a lien on such delinquent
Owner's Condominium prior and superior to all other liens, except, (a) all taxes, (b) bonds,
assessments and other levies which, by law, would be superior thereto, and (c) any First
Mortgage now or hereafter placed upon any Condominium subject to assessment. The sale or
transfer of any Condominium pursuant to judicial or nonjudicial foreclosure (excluding a transfer
by a deed in lieu of foreclosure) of a First Mortgage shall extinguish the lien of such assessments
as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve
such Condominium from any assessments thereafter becoming due or from the lien of any
subsequent assessment. Where the Mortgagee of a First Mortgage or other purchaser of a
Condominium obtains title to the same as a result of foreclosure (excluding a transfer by a deed
in lieu of foreclosure), such acquirer of title, its successors and assigns, shall not be liable for the
share of the Common Expenses or assessments by the Association chargeable to such
Condominium that became due prior to the acquisition of title to such Condominium by such
acquirer, except for a share of such charges or assessments resulting from a reallocation of such
charges or assessments which are made against all Condominiums.
5.13 No Offsets. All assessments shall be payable in the amounts specified by the
particular assessment and no offsets against such amounts shall be permitted for any reasons,
including, without limitation, a claim that the Association is not properly exercising its duties of
maintenance, operation or enforcement.
5.14 Personal Liability of Power. No Owner may exempt himself or herself from
personal liability for assessments, nor any part thereof, levied by the Association, nor release the
Condominium owned by such Owner from the liens and charges hereof by waiver of the use and
enjoyment of the Common Area or Association Property, or by abandonment of such Owner's
Condominium.
5.15 Transfer of Property. After transfer or sale of Property within the Project, by an
Owner other than Declarant, the selling Owner or Owners shall not be liable for any assessment
levied on such Owner or Owner's Condominium after the date of such transfer of ownership if
written notice of such transfer is delivered to the Association. After transfer or sale of any
portion of the Property within the Project, Declarant shall automatically be released from any
liability for assessments after the date of transfer of such ownership. It shall be the responsibility
of selling Owner to instruct such Owner's escrow agent to deliver written notice of the transfer to
the Association. The selling Owner shall still be responsible for all assessments and charges
levied on its Condominiums prior to any such transfer and the delivery of such written notice.
The Association shall have the right to charge a fee in the amount of Two Hundred Fifty Dollars
(S250) or any such greater amounts established in the Rules and Regulations for (i) the costs
incurred in changing its records and/or escrow and (ii) for the costs incurred in preparing a letter
certifying the status of assessment payments for such Owner's Condominium.
j
5.16 Failure to Fix Assessments. The omission by the Board to fix the assessments
hereunder before the expiration of any year, for that or the next year, shall not be deemed either a
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waiver or modification in any respect of the provisions of this Declaration or a release of the
Owner from the obligation to pay the assessments or any installment thereof for that or any
subsequent year, but the assessment fixed for the preceding year shall continue until a new
assessment is fixed.
5.17 Property Exempt from Assessments. The Association Property shall be exempt
from the assessments, charges and liens created herein. Declarant and the Owners shall be
exempt from paying any portion of Regular Assessments which is for the purpose of defraying
expenses and reserves directly attributable to the existence of any Improvements on the
Association Property which are not complete at the time assessments commence, which
exemption shall be in effect only until the earlier to occur of the following: (i) a notice of
completion for the subject Association Property has been recorded, or (ii)the Association
Property has been placed into use.
5.18 Reserve Fund. The Association may maintain as a reserve fund a reserve
account fund sufficient to pay for maintenance, repair and periodic replacement of the Common
Area and Association Property and Improvements located thereon that the Association is
obligated to maintain.
5.19 Inspection of Books and Records. Upon request, any Owner shall be entitled to
inspect the books, records and financial statements of the Association, the Governing Docurnents
and any.amendments thereto during normal business hours. u ;-
5.20 Estoppel Certificate. The Association shall furnish or cause an appropriate
officer to furnish within 15 business days after written request therefore by any person, a
certificate signed by an officer of the Association setting forth whether the assessments on a
specified Condominium have been paid. A properly signed certificate of the Association with
respect to the status of assessments on a Condominium is binding upon the Association as of the
date of its issuance.
5.21 Initial Capital Contribution. Upon acquisition of record title to a Condominium
from Declarant, each Owner shall contribute to the capital of the Association an amount equal to
Two Thousand Dollars (52,000) for each Condominium acquired by an Owner. This amount
shall be deposited by the Owner into the purchase and sale escrow for such Owner's
Condominium and disbursed therefrom to the Association.
ARTICLE 6
USE RESTRICTIONS
6.1 Restrictions of Master Declaration. Each Owner shall comply with all of the
restrictions set forth in the Master Declaration, including, without limitation, the restrictions
relating to the use of the Property set forth in Section 5.1 (General), Section 5.2 (Prohibited
Operations and Uses), Section 6.9 (Limitations on Improvements), Section 7.2 (Parking Areas),
Section 7.3 (Storage and Loading Areas), Section 7.4 (Utility Lines), Section 7.6 (No Re-zoning,
Permit Amendments or Re-subdivision) and Section 7.7 (Hazardous Materials) of the Master
Declaration, all of which are incorporated by reference into and made a part of this Declaration.
To the extent that any restriction in the Master Declaration requires the approval of the
"Declarant" and/or the "Board", then, for purpose of compliance with this Declaration, Owner
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shall, in addition to obtaining the necessary approvals under the Master Declaration also obtain
approval from the Declarant and/or the Board under this Declaration. The provisions set forth in
this Article 6 are in addition to the restrictions set forth in the Master Declaration and each
Owner shall, in addition to complying with the restrictions set forth in the Declaration, comply
with the restrictions set forth in the Master Declaration. In the event of any conflict between this
Declaration and the Master Declaration, the more restrictive provision shall apply.
6.2 Permitted Uses. Condominiums in the Project may only be used for commercial
and professional office uses, financial services (including brokerage, banks and other lending
services), and any other uses permitted by the City so long as such other uses are not otherwise
prohibited under Section 6.3 of this Declaration or provided such uses have been approved or
authorized by Declarant in a Supplementary Declaration.
6.3 Prohibited Uses. No use or operation shall be made, conducted or permitted on
or with respect to all or any part of the Project, which use or operation violates (i) Applicable
Laws, ur (ii) ihe provisions of this Declaration or the Master Declaration.
6.4 View Corridor Restriction. 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 sight distance corridor in accordance with City Standard Public Street-Design
Criteria, Section 8.B.3.
• " •' (?.
6.5 Development Restrictions. Development of the Project shall comply with
environmental mitigation measures set forth in Planning Commission Resolution 5024 dated
October 12, 2001.
%
6.6 Modifications to Joint Use Areas. The location and size of all employee eating
areas, parking areas, and landscaped areas within the Project, as such areas arc shown on the City
approved Tentative Map for Lots 23 and 24, shall not be altered, reduced, fenced, or divided to
preclude the equal use by all Owners and such Owner's Invitees.
6.7 Rental of Condominiums. An Owner shall be entitled to rent the Owner's
Condominium subject to the restrictions contained in this Declaration. Any rental or leasing
agreement shall be in writing, shall provide that the Lease is subject to the Governing Documents
and shall provide that any failure to comply with any provision of the Governing Documents
shall be a default under the terms of the Lease. A copy of the Governing Documents shall be
provided to each Lessee by the Owner so renting or leasing. The Owner of the Condominium
which is being leased shall, at all times, be responsible for the Lessee's compliance with all of
the provisions of this Declaration and the Governing Documents and shall remain primarily
liable for any violations by a Lessee of any of the provisions of the Governing Documents. A
Lessee shall not have any voting rights in the Association, and an Owner may not delegate any
other rights to a Lessee. All Owners who rent their Condominiums shall submit names and
contact numbers for their Lessees to the management company for the Project.
6.8 Signs. No Signage or other advertising device whatsoever, including without
limitation, political and similar signs, shall be erected or maintained within the Project except
(i) Signage placed or displayed by Owners or tenants of Condominiums in accordance with the
Project Handbook, provided (a) such signs are in conformance with all applicable federal, state
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and local laws and regulations (including, without limitation, the City's Sign Ordinance), the
Signage Program and the Master Design Guidelines, and (b) such signs have been reviewed and
approved by the City Planning Director, and (c) such signs are installed in the locations shown
on the Master Design Guidelines and City approved permitted constructions plans on-file with
the Association (ii)job identification signs during the time of construction of any portion of the
Project by Declarant; and (iii) signs used by Declarant for the purpose of developing, improving
and selling Condominiums. So long as Declarant owns any interest in the Project, no "for lease"
or "for sale" signs shall be erected or maintained within the Project by any Owner other than
Declarant and all identification and other signs for Condominiums (and any changes thereto)
referenced in Subsection (b) above shall be subject to the prior written approval of Declarant.
Any signs which are approved for installation by an Owner and any electricity for such Signage
shall be installed only by contractors pre-approved by the Association for Signage installations.
Any electrically powered Signage permitted to be erected or maintained pursuant to this
Section 6.8 on any Unit shall be connected to the electrical meter servicing such Unit, and the
Owner or tenant of such Unit shall be responsible for the payment of all such electrical costs.
6.9 Inside and Outside Installations. No Alteration, including without limitation
installation of signs, shall be commenced without the prior written approvals required under
Article 8 of this Declaration. Nothing shall be done in or to any Condominium which will or
may tend to impair the structural integrity of any other Condominium or other Improvement in
the Property or which would structurally alter any Building except as otherwise expressly
provided herein. In addition to the foregoing, all Improvements installed or constructed by an
Owner within the Project must be completed in accordance with Applicable Laws, regulations'
and ordinances. Window tinting and coverings shall be prohibited unless approved by the Board,
except that the Board approval is not required for any window tinting or window coverings
installed by Declarant.
6.10 No Mechanics* Liens. No Owner shall cause or permit any mechanic's lien to be
filed against any portion of the Project for labor or materials alleged to have been furnished or
delivered to the Project or for such Owner, and any Owner who does so shall immediately cause
the lien to be discharged either by paying the indebtedness which gave life to such lien or by
posting such bond or other security as shall be required by law to obtain such release and
discharge. If any Owner fails to remove such mechanic's lien, the Board may discharge the lien
and charge the Owner an Enforcement Assessment for such cost of discharge.
6.11 Outside Storage. No Owner shall use any Association Property or exterior
Common Area for storage purposes. No Owner shall allow any personal property belonging to
such Owner to remain within any portion of the Common Area or the Association Property
except as may otherwise be permitted by the Board or the Project Handbook.
6.12 Fire Sprinkler Systems. No Owner may turn off or otherwise disable the fire
sprinkler system servicing such Owner's Unit or the Building in which such Owner's Unit is
located without first providing reasonable prior written notification to the other Unit Owners
within the Building, the fire alarm company and the Association of the proposed shut off. In no
event shall any Owner cause the fire sprinkler system to be shut off or disabled for a period
longer than 12 consecutive hours.
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6.13 Drainage. There shall be no interference with the established drainage pattern
over the Property, unless an adequate alternative provision is made for proper drainage with.the
prior written approval of the Board. For the purpose hereof, "established" drainage is defined as
the drainage shown on the grading and drainage plan approved by the City, or that which is
shown on any plans approved by the Board. If such Owner fails to maintain such drainage and,
as a result, imminent danger or damage to person or property may result to the other Owners,
then the Association shall have the right of access onto such area for the purpose of clearing
debris and other material so as to not impede the flow of water. This right of access shall be
exercised only for the purpose of preventing damage to persons and property and the entering
party shall use reasonable care so as to not cause any damage to such areas. The Owner shall
reimburse the Association for any costs and expenses incurred in clearing such debris pursuant to
Section 5.6 of this Declaration.
6.14 Antennae and Satellite Dishes. No Owner shall install any antenna, satellite
dish, or other over-the-air receiving device ("Antenna") (i) on any real property which such
Owner is not entitled to exclusively use or control, as provided in Title 47 U.S.C. §§ 1 et seq., 47
CFR § 1.4000 and any other Applicable Laws ("collectively "Antenna Laws"), (ii) in a particular
location if. in the Board's opinion, the installation, location or maintenance of such Antenna
unreasonably affects the safety of the Owners or any other person, or forany other safety-related
reason established by the Board, or (iii) that is of a size larger than is permitted under the
Antenna Laws. If an Owner is entitled to install an Antenna under the foregoing requirements,
such Owner shall provide the Board with written notice that such Owner has installed or is about
to install the Antenna. If an Owner desires to install an Antenna, other than as described in
(i) through (iii) above, such Owner may do so only upon the prior approval of the Board pursuant
to Articles and subject to the requirements set forth in Section 7.1.1 and Section 7.3 below.
The Board shall not impose or enforce any restrictions upon Antennae that are inconsistent with
the Antenna Laws.
6.15 Parking and Vehicular Restriction.
6.15.1 Authorized Vehicles. The following vehicles are "Authorized
Vehicles": standard passenger vehicles, including automobiles, passenger vans designed to
accommodate 10 or fewer people, motorcycles and pickup trucks having a manufacturer's rating
or payload capacity of one ton or less, commercial-type vehicles including delivery trucks,
limousines, and vehicles which are the principal source of transportation for an Owner.
Authorized Vehicles may be parked in any portion of the Project intended for parking of
motorized vehicles subject to Sections 6.15.2 and 6.15.3 below; however, no Owner may park an
Authorized Vehicle in a manner which the Association determines either restricts the passage of
pedestrians or vehicles over streets, driveway, or sidewalks in the Project or extends beyond the
limits of the space where the Authorized Vehicle is parked. The Association has the power to
identify additional vehicles as Authorized Vehicles in the Rules and Regulations.
6.15.2 Prohibited Vehicles. The following vehicles are "Prohibited
Vehicles": (a) recreational vehicles (e.g., motorhomes, travel trailers, camper vans and boats)
(b) buses or vans designed to accommodate more than ten (10) people, (c) trailers, (d) inoperable
vehicles or parts of vehicles, (e) aircraft, (f) any vehicles or vehicular equipment deemed a
nuisance by the Board, (g) dump trucks, tank trucks, concrete trucks, (h) stakebed trucks, and
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(i) any other vehicles not classified as an Authorized Vehicle. Prohibited Vehicles may not be
parked, stored or kept within the Property except for brief periods for loading, unloading, making
deliveries, providing services or Emergency repairs. If a vehicle qualifies as both an Authorized
Vehicle and a Prohibited Vehicle, then the vehicle is presumed to be a Prohibited Vehicle unless
the vehicle is expressly classified as an Authorized Vehicle in writing by the Board.
6.15.3 General Restrictions. There shall be no parking in the Project that
obstructs free traffic flow, constitutes a nuisance, violates the Rules and Regulations, or
otherwise creates a safety hazard. The parking areas in the Property shall be used for parking
Authorized Vehicles only and shall not be used for storage purposes. No maintenance, repair,
restoration, or construction of any vehicle shall be conducted on the Property. Unless otherwise
approved by the Board in writing, vehicles may not be parked overnight within the Project. The
Board shall have the right, but not the obligation, to assign exclusive parking areas to each
Building, designate exclusive parking areas to be utilized by the Invitees of a specified Building
during specified time periods, issue parking permits for authorized users of allocated parking
spaces and/or establish such other system of controlled parking on the Association Property as
the Board may determine reasonably necessary to ensure equitable use of the available parking
within the Project. The Board may establish additional regulations regarding parking areas not
assigned to Condominiums, including designated "parking," ''visitor parking" and "no parking"
areas.
6.15.4 Enforcement. The Board may enforce all parking and vehicle use
regulations applicable to the Project, including, without limitation, removing violating vehicles
from the Project pursuant to California Vehicle Code Section 22658 or other Applicable Laws.
In the event that the Board determines, after Notice and a Hearing, that any enforcement action is
required pursuant to this Section 6.15.4, the Board may impose an Enforcement Assessment on
the Condominium of the Owner whose violation, or whose Invitee's violation, has resulted in
enforcement action in an amount equal to the reasonable cost to the Association of the applicable
enforcement action. The Board, in its sole and absolute discretion, may waive in writing all or
any portion of the provisions of this Section 6.15.4.
6.15.5 Loading Facilities. All temporary loading and unloading activities
shall be conducted from designated parking areas within the Association Property, subject to
such reasonable restrictions as may be imposed by the Board (including, without limitation,
restrictions on the maximum duration of loading and unloading activities within the Association
Property or the hours during which such activities occur). Without limiting the foregoing, no
loading and unloading activities shall be conducted in any manner which may obstruct free
traffic flow during normal business hours or otherwise constitute a nuisance or create a safety
hazard.
6.15.6 Parking Spaces. All parking within the Project shall be shared by the
Owners and all easements over the Association Property granted herein shall include an
easement for ingress and egress over, through and across the access aisles and driveways within
the Project. Such unassigned, unreserved Parking Spaces shall be used and shared in common
with all Owners. Notwithstanding the foregoing, in the event the Board determines parking
controls are needed to prevent or remedy Owner disputes over parking, the Association shall
have the ability to require at all times at the Project either (i) a parking ratio based
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proportionately on the Allocable Shares for the Units, or (ii) a parking ratio approved by
Declarant so long as Declarant owns any Unit within the Project. In such event, unless otherwise
approved by the Board in writing. Owners shall not be able to park or permit an Owners' Invitees
to park vehicles so as to exceed the parking allocation provided under this Section 6.15. An
Owner's continued right to use the Parking Spaces shall be conditioned upon an Owner
complying with all of the requirements of this Declaration.
6.15.7 Non-Applicability to Declarant. Nothing contained in this
Section 6.15 shall restrict Declarant from permitting construction vehicles necessary for the
development of the Project to be parked, stored or kept within the Project.
6.16 Toxic or Noxious Matter. No person shall discharge into the Project's sewer
system or storm drain any Hazardous Materials or toxic or noxious matter in such concentrations
as to be detrimental to or endanger the public health, safety, welfare, violate any law, subject any
Owner to liability under state and federal law for any clean-up or cause injury or damage to
neighboring property or business elsewhere on the Project.
6.17 Air Pollution. No air pollutants or contaminants sufficient to create a nuisance
.shall be discharged, and no processes which by their nature are likely to cause air pollution shall
be undertaken or permitted unless there is available an adequate, economically feasible method
of controlling the omission or contaminates, and such controls are applied by the Board.
6.18 Compliance with Laws, Etc. Nothing shall be done, constructed, installed or
kept in any Unit or in the Common Area or the Association Property that might increase the rate
of, or cause the cancellation of, insurance for the Project, or any portion of the Project. No
Owner shall permit anything to be done, constructed, installed or kept in such Owner's
Condominium that violates any law, ordinance, statute, rule or regulation of any local, County,
state or federal body, including any laws, ordinances or statutes pertaining to the use or storage
of any Hazardous Materials.
6.19 Trash Disposal. Trash, garbage or other waste shall be kept only in sanitary
containers. No Owner shall permit or cause any trash or refuse to be kept on any portion of the
Project other than in the receptacles customarily used for it, which, shall be located only in
places specifically designated for such purpose in the Rules and Regulations.
6.20 Closure. Ai the request of the Association, the Owner of a Condominium shall,
following the permanent closure or cessation of any business operation which is expected to
continue for any extended period of time: (a) board up or otherwise enclose the windows and
entrances of such Building or portion thereof previously occupied by such business operation in
a reasonably attractive manner; and (b) unless prevented from so doing by the terms and
conditions of a Lease to a Lessee, thereafter diligently seek to sell or relet the vacant premises to
another Owner or Lessee whose business operation conforms to the requirements of this
Declaration.
6.21 Compliance with Requirements Regarding Project Storm Water Pollution.
Water that enters a storm drain flows to waterways, creeks, streams, rivers, lakes and/or oceans.
Accordingly, various Federal, State and City laws, regulations, policies and ordinances prohibit
discharging anything other than natural rain water into storm drainage systems. No Owner, nor
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the Association, shall discharge any toxic chemicals or hydrocarbon compounds such as
gasoline, motor oil, antifreeze, solvents, paints, paint thinners, detergents, pet waste, and other
such materials and pollutants into the storm drain system. The disposal of such pollutants and
materials into a storm drain system may result in significant penalties and fines and such Owner
may be responsible for any activities by Owner's contractors (e.g., painters, etc.) who dispose of
such pollutants from an Owner's Unit into a storm drain system.
6.21.1 Storm Water Pollution Prevention Best Management Practices.
As required by the Conditions of Approval for the Project, Declarant shall establish City
approved best management practices ("BMPs") and a City approved Storm Water Pollution
Prevention Plan ("SWPPP") in connection with handling storm water pollution at the Project.
As set forth in the Conditions of Approval for the Project, the City approved SWPPP shall,
among other items, identify existing and post development on-site pollutants of concern; identify
the hydrologic units the Project contributes to and impaired water bodies that could be impacted
by the Project; 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 extent
practicable before discharging to City right-of way; establish specific procedures for handling
spills and routine clean up; ensure long-term maintenance of all post construction BMP. The
Association shall comply with and perform all maintenance that may be imposed by such
SWPPP and BMPs. The costs of such maintenance by the Association, if any, shall be included
within the Common Expenses. All Owners within the Project and the Association are required to
comply with any and all restrictions imposed by the City concerning the proper disposal of any
Hazardous Materials.
6.21.2 Liability to Declarant. So long as Declarant owns any
Condominium, if the Association is not in compliance with the provisions of this Section and, as
a result, Declarant incurs any liability, Declarant shall have the right but not the obligation to
enter the Condominium or the Association Property to correct such violation. If the Association
violates the requirements of this Section, the Association shall indemnify, protect, defend and
hold Declarant and Declarant's officers, directors, successors and assigns entirely free and
harmless from and against any Claims arising from or attributed to a violation of the provisions
of this Section and shall within 15 days after request from Declarant, reimburse Declarant for
any costs and expenses incurred by Declarant in correcting any violation of this Declaration.
6.22 Notice of Airport in Vicinity. The Property is presently located in the vicinity of
an airport, within what is known as an airport influence area. For that reason, the Property may
be subject to some of the annoyances or inconveniences associated with proximity to airport
operations (for example: noise, vibration, or odors). Individual sensitivities to those annoyances
can vary from person to person. Each Owner should consider what airport annoyances, if any,
are associated with the Property before such Owners completes its purchase and determine
whether such annoyance are acceptable to such Owner.
ARTICLE?
MAINTENANCE
7.1 Maintenance Obligations of Owners.
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7.1.1 Owners' Responsibilities. Subject to any provisions of the
Governing Documents and of the Master Declaration, each Owner shall maintain, repair and
replace in a first-class condition, and in accordance with the Maintenance Obligations, the
following:
(a) All portions of such Owner's Unit, including, without limitation,
any Exclusive Use Elevator Areas and the interior surfaces of the Unit;
(b) The Utility Facilities servicing its Unit and located either within or
outside the Unit, so long as those systems are used exclusively by such Owner and not in
common, including, without limitation, the HVAC unit on the roof of the Building; provided
however, that Owners shall be required to use contractors pre-approved by the Association for
the maintenance of roof mounted HVAC equipment, and for the installation and maintenance of
any Antennae installed pursuant to Section 6.14. Notwithstanding anything to the contrary
contained herein, an Owner shall use the original roofing contractor for any roof improvement,
or penetration contemplated in this Section 7.1.l(b) if using another contractor would void any
existing roofing guaranties or. warranties, unless otherwise authorized by the Board. Nothing
contained herein shall be deemed to impose an obligation on an Owner to maintain the roof area
of a Unit;
(c) The interior of the windows enclosing an Owner's Unit, provided,
however, that the Owner shall only be responsible for cleaning the window interior and shall not
be responsible for maintaining, repairing or replacing any portion of the window or the window
casing which shall be the responsibility of the Association and the costs for such repair and
replacement shall be included as a Common Expense, except if the damage to the window is
caused by the Owner in which case the Owner shall be obligated to pay for the costs of such
repair or replacement which costs shall be an Enforcement Assessment;
(d) Doors located within the interior of an Owner's Unit.
7.1.2 Maintenance Obligations of Certain Owners. In addition to the
obligations set forth above, certain Owners shall have the maintenance obligations described
below.
(a) The Owner of the Condominium located on the second floor of a
two story Building shall be responsible for installing any finish Improvements within the
Owner's Unit, and maintaining, repairing and replacing the Stairwells servicing such Owner's
Unit, including without limitation any utilities servicing the Stairwells and all doors providing
access to such Stairwells, located within such Building;
(b) The Owner of the Condominium located on the second floor of a
two story Building shall be responsible for installing any elevator Improvements, and
maintaining, repairing and replacing the Exclusive Use Elevator Area, elevator equipment room,
if any, and any utilities servicing such areas, located within such Building;
(c) The Owner of the Condominium located on the first floor of a two
story Building shall be responsible for installing any finish Improvements within the. Owner's
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Unit, and maintaining, repairing and replacing the Lobby and any utilities servicing the Lobby,
located within such Building; and
(d) The Owner of the Condominium located on the first floor of a two
story Building shall be responsible for maintaining, repairing and replacing the Shaft Space
located within such Building.
7.1.3 Emergency Repairs. m the event of a malfunction of any Utility
Facility not exclusively used by one Owner, the Owners of the Units in the Building Module
shall take appropriate actions to make any Emergency repairs until the Association can correct
the malfunction. Such repairing Owner shall not be deemed guilty of trespass by reason of such
entry.
7.1.4 Failure to Maintain. If an Owner fails to maintain the Owner's Unit
and perform the other maintenance and repair obligations as provided above in such manner as
shall be deemed necessary in the judgment of the Board to preserve the attractive appearance
thereof and protect the value thereof, the Boar.d shall give written notice to such Owner, stating
with particularity the work of maintenance or repair which the Board finds to be required and
requesting that the same be carried out within a period of 30 days from the giving of such notice.
If the Owner fails to carry out such maintenance or repair within the period specified by the
notice, the Board shall cause such work to be completed and shall assess the cost thereof to such
Owner as an Enforcement Assessment in accordance with the procedures set forth in this
Declaration. If any Owner damages the roof or roof membrane of the Building in which such
Owner's Unit is located, whether during the maintenance of such Owner's roof-mounted HVAC
equipment, Antennae or otherwise, such Owner shall be responsible for the cost of any roof
repairs required as a result of such damage.
7.2 Maintenance Obligations of Association.
7.2.1 Maintenance of Common Area and Association Property. Except
for the maintenance responsibilities of Owners described in Section 7.1, the Association shall be
responsible for the genera! clean-up, maintenance, repair, replacement of all Common Area and
Association Property in accordance with the Maintenance Obligations and the requirements of
the Association Maintenance Manual and the Master Declaration. The Association shall provide
for all necessary maintenance services and cause all acts to be done which may be necessary or
proper to assure the maintenance of the Common Area and Association Property in a good and
workmanlike manner consistent with other institutional quality projects in the market. The
Association's obligations to perform such maintenance shall commence on the date Regular
Assessments commence on Condominiums. The Association's maintenance, repair and
replacement obligations shall include without limitation, the following:
(a) the landscaping, irrigation systems, hardscape and drainage within
the Association Property and Common Areas provided that all landscaping shall be maintained
in accordance with the maintenance responsibilities set forth in the approved landscape plan on
file at the City of Carlsbad Planning Department.
(b) the gang mail boxes, trash enclosures, exterior lighting and signs
within the Association Property;
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(c) the electrical room, if any, located within the Common Area of the
(d) exterior walls, roofs, foundations, bearing walls, and structural
components of the Buildings, subject to the obligations of any Owners to perform other
Maintenance Obligations as provided in Section 7.1;
(e) all Utility Facilities that serve more than one Unit (whether located
within the Units, the Common Area or the Association Property) which are not maintained by a
public entity, utility company or improvement district; and
(f) all fire sprinkler systems installed by Declarant (wherever located);
(g) all private easements located within Association Property and
designated for maintenance by the Association, if any;
(h) the streets, sidewalks, street lights and storm drain facilities
(including all Storm Water Pollution Control Structures) located within the Association Property;
and
(i) windows enclosing an Owner's Unit including the frames, tracks
and window casings provided, however that the Owner shall be responsible for cleaning the
interior of the window as provided in Section 7.1.l(c);
(j) Signage installed pursuant to Section 6.8, provided, however, that
the Association shall not be obligated to repair or replace such Signage, which obligation shall be
the sole responsibility of the Owner installing such Signage.
The costs of such maintenance by the Association shall be included within the Common
Expenses.
7.2.2 Inspections. The Association shall regularly inspect, maintain and
repair the Association Property, including without limitation, the landscaping, drainage and
irrigation systems serving or within the Association Property and Common Area in accordance
with the requirements of the Association Maintenance Manual and any warranty provided to the
Association. The Association shall employ the services of such experts and consultants as are
necessary to assist the Association in performing its duties hereunder and follow any
recommendations contained in the Association Maintenance Manual and any warranty provided
to the Association. If requested by Declarant, Declarant shall be invited to attend any such
inspections. Any inspection report prepared for a portion of the Project covered by a warranty
shall, upon the request of Declarant, be provided to Declarant. The Board shall promptly cause
all matters identified as requiring attention to be maintained, repaired, or otherwise pursued in
accordance with prudent business practices and the recommendations of the inspectors and shall
keep a record of all such matters in the Board's minutes.
7.2.3 Failure of Association to Maintain Association Property. In the
event that the Association fails to maintain the Association Property as provided in Section 7.2.1
the City shall have the right, but not the duty, to perform the necessary maintenance. If the City
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elects to perform such maintenance, the City shall give written notice to the Association, with a
copy thereof to the Owners in the Project, setting forth with particularity the maintenance which
the City finds to be required and 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 Association Property within the period specified by the
City's notice, the City shall be entitled to cause such work to be performed and shall be entitled
to reimbursement with respect thereto from the Owners as provided herein.
7.2.4 Special Assessments Levied by the City. In the event the City has
performed the necessary maintenance to the Association Property, the City shall submit a written
invoice to the Association for all costs incurred by the City to perform such maintenance of the
Association Property. The City shall provide a copy of such invoice to each Owner in the
Project, 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 in the Project pursuant to
the provisions of this Section. 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 Condominium in the Project 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 Condominium against which the Special Assessment is levied. Each Owner in the Project
hereby vests the City with the right and power to levy such Special Assessment, to impose a lien
upon their respective Condominium and to bring all legal actions and/or to pursue lien
foreclosure procedures against any Owner and his/her respective Condominium for purposes of
collecting such Special Assessment in accordance with the procedures set forth in this
Declaration.
7.3 Compliance with Warranties. So long as any warranty provided to an Owner or
the Association is in effect, if an Owner or the Association is not, in the reasonable discretion of
Declarant, in compliance with any provisions of such warranty, Declarant or any party
designated by Declarant to perform such repairs, shall have the right, but not the obligation, to
enter upon the Association Property and the Condominiums to correct such non-compliance at
the Owner's or Association's expense, as the case may be, after such Owner's (or the
Association's) failure to correct such non-compliance within 5 days of receipt of written notice
issued by the Declarant (unless an Emergency situation exists in which case notice to such
Owner or the Association is not required).
7.4 Water and Sewer Meters. The City ("Service Provider") provides water and
sewer service to the Project. It shall be the responsibility of each Owner to acquire, pay for,
install and maintain a water meter servicing such Owner's Unit. In the event a public meter has
been installed by another Owner to service a Unit or the Units within a Building ("Installing
Owner"), the Owner of the Unit within such Building for which a public meter has not yet been
installed ("Non-Installing Owner") may install a private meter in lieu of a public meter if both
the City and the Installing Owner agree to such an arrangement. In the event both the City and
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IS 739
the Installing Owner agree to allow the Non-Installing Owner to install a private meter, which
agreement shall be in writing, Non-Installing Owner shall install at such Owner's sole cost and
expense a private meter. It shall be the sole responsibility of the Non-Installing Owner and
Installing Owner to facilitate any and all cost reimbursement arrangements that are necessary due
to the Non-Installing Owner installing a private meter. In the event that either the City or the
Installing Owner do not agree to the installation of a private meter, the Non-Installing Owner
shall install a public meter for such Owner's Unit. Prior to installing a water meter within the
Common Area or Association Property, each Owner shall submit to the Board a diagram
showing the proposed location of the water meter. The Board shall, within 3 business days either
approve or disapprove of such location in writing. In the event the Board does not provide
written approval or disapproval within such 3 business day period, the location shall be deemed
approved. Upon approval or deemed approval by the Board, the Owner shall arrange for and
complete the installation of the water meter within 10 business days. Owners shall be
responsible for restoring the Common Area and/or Association Property to the condition it was
in prior to the installation of such meter.
7.5 House Electric Meters. Each Owner acknowledges that Declarant has installed
one electric meter for the Project to measure and bill electricity usage related to, among other
items, sprinkler systems and exterior building lights. The Association will be responsible for the
payment of the bill associated with this electricity usage to the Service Provider and the
individual Owners will be responsible for paying their Allocable Share of the bill as part of such
Owner's Regular Assessments.
ARTICLES
ARCHITECTURAL REVIEW
Except for the references contained in Section 8.3, 8.4 and 8.15, all references to the
Board or the Association contained in this Article 8 shall be deemed to refer to Declarant until
such time as Declarant is no longer actively developing, marketing and/or selling any
Condominiums in the Property.
8.1 Master Architectural Approval. The approvals required to be obtained under
this Declaration are in addition to the approvals required to be obtained pursuant to the Master
Declaration, if any. Prior to seeking approval from the Board of Plans and Specifications (as
defined below) for any Improvements in accordance with the provisions set forth in this
Article 8, an Owner shall obtain any necessary approval of such Plans and Specifications from
the Master Association in accordance with the provisions and procedures set forth in the Master
Declaration. The Board shall have the right to condition approval under this Article 8 upon
receipt of evidence that any Owner has received the necessary preliminary and final approvals
required under the Master Declaration.
8.2 Scope. No Alterations of any kind whatsoever (including, without limitation, any
modification or removal of any walls located between two (2) Units as described in Section 2.4
above) shall be commenced until the location and the complete plans and specifications showing
the Alteration's nature, kind, shape, height and materials, including the color ("Plans and
Specifications") have been submitted to and approved in writing by the Board in accordance with
the procedures set forth in the Architectural Guidelines. All Plans and Specifications affecting
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any of the structural components of a Building or any exterior drainage shall, unless otherwise
authorized in the Architectural Guidelines, be prepared and signed by an architect or engineer
licensed to practice in California, and signed by the Owner or by an agent authorized by the
Owner in writing. The Board shall have the right, in the Board's sole and absolute discretion, to
(i) rely on the expertise of such Owner's architect or engineer, or (ii) submit such Plans and
Specifications for review and comment to an architect, landscape architect, engineer or other
consultants as deemed appropriate by the Board based on the nature of the proposed Alterations
(collectively the "Outside Consultant"), which Outside Consultant shall be duly qualified and
licensed in the State of California and shall have no current financial or ownership interest in the
Project. The choice of the Board as to the selection of the Outside Consultants shall be deemed
to be final. The Board shall have the right to establish a fee for the review and approval of all
Plans and Specifications submitted to the Board pursuant to the provisions of this Article, which
fee shall not be less than Five Hundred Dollars ($500.00). Notwithstanding the foregoing, the
reconstruction of a Unit or other Improvements that were originally constructed by any Declarant
or approved by the Board under this Article, shall not require such submitlal, so long as such
Improvements are constructed in accordance with the original Plans and Specifications and in a
manner otherwise consistent with this Article. In the discretion of the Board, inspections of such
Improvements in accordance with Section 8.6 of this Declaration may be performed to ensure
compliance with the original Plans and Specifications.
8.3 Architectural Guidelines. The Board may, from time to time and in its sole
discretion, adopt, amend and repeal, by unanimous vote, rules and regulations to be known as
"Architectural Guidelines." The Architectural Guidelines shall interpret and implement the
provisions of this Declaration by setting forth (i) the standards and procedures for architectural
review, (ii)the requirements for the Plans and Specifications, and (iii) the guidelines for
architectural design of Alterations, placement of Alterations, exterior color schemes, finishes and
materials, and similar features which are recommended for use in the Project; provided, however,
that the Architectural Guidelines shall not detract from or conflict with the standards required by
this Declaration. •
8.4 Duties of Board for Architectural Review. It shall be the duty of the Board to
consider and act upon such proposals or plans submitted to it pursuant to the terms hereof and
the Architectural Guidelines, to administer the Architectural Guidelines to ensure that any
Alterations constructed within the Property conform to plans approved by the Board, and to carry
out all other duties imposed upon it by the Governing Documents related thereto.
8.4.1 Time Limitations. The Architectural Guidelines shall set forth the
periods for review and approval of Plans and Specifications. The Architectural Guidelines may
also set forth time limitations for the completion of any Alterations for which approval is
required.
8.4.2 Procedures. The Board shall implement the procedures for
architectural review set forth in the Architectural Guidelines, which shall be followed by each
Owner. The failure of the Board to include any particular standards or guidelines in the
Architectural Guidelines shall not limit the right of the Board to enforce standards to protect the
overall theme and development of the Property. .
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8.4.3 Conformity of Plans and Specifications. The Architectural
Guidelines shall require the conformity of completed Alterations to the Plans and Specifications
approved by the Board and to the Architectural Guidelines. The Board may, but shall not be
required to record a notice of non-completion if the Alterations have not been completed as
required under this Declaration or, if permitted by law, to record a notice of noncompliance if the
Alterations are not in conformance with the requirements of this Declaration identifying the
violating Unit and its Owner and specifying the reason for the notice executed by the appropriate
Board, in the Office of the County Recorder and provide such notice to such Owner after the
expiration of the time limitations established pursuant to Section 8.4,1 above or institute legal
proceedings to enforce compliance or completion of the Alterations approved by the Board.
8.4.4 Identical Replacements. Notwithstanding the foregoing, the Board
shall not unreasonably withhold consent to any replacement of an Improvement to a
Condominium for which submittals were previously approved as provided above, but only if the
replacement Improvement is substantially identical to the Improvement previously so approved.
Any Improvement may be repainted without the Board's approval so long as the Improvement is
painted the identical color it was first painted with the approval of the Board.
8.5 Powers of Board for Architectural Review. The Board may exercise all
available legal and equitable remedies to prevent or remove any unauthorized and unapproved
construction of Alterations within the Property or any portion thereof. Unless any such rules
regarding submission of plans are complied with, such Plans and Specifications shall be deemed
not submitted.
8.6 Inspection and Correction of Work. The Board or its duly authorized
representative may enter into any Condominium, from time to time, as provided below during
the course of or after the construction or installation of any Alterations for the purpose of
inspecting such construction and/or installation to determine whether it was performed in
substantial compliance with the approved Plans and Specifications. If the Board determines that
such construction and/or installation is not being done in substantial compliance with the
approved Plans and Specifications, it shall notify the Owner of the Condominium of such
non-compliance not more than 30 days after the inspection specifying particulars of non-
compliance, and shall require the Owner to remedy such non-compliance. The Board may not
enter onto a Unit without obtaining the prior permission of the Owner or occupant of such Unit;
provided, however, that such prior permission shall not be unreasonably withheld and shall be
given for entry by the Board during the daylight hours within 48 hours of the request for entry.
8.6.1 Non-Compliance. If, upon the expiration of 30 days from the date of
such notification, the Owner shall have failed to remedy such non-compliance, the Board after
affording the Owner Notice and Hearing, shall determine whether there is a non-compliance, and
if so, the nature thereof and the estimated cost of correcting or removing the same. If non-
compliance exists, the Board shall require the Owner to remedy or remove the same within a
period of not more than 30 days from the date of the Board ruling. If the Owner does not comply
with the Board ruling within such period or within any extension of such period as the Board, in
its discretion, may grant, the Board, at its option, may either remove the non-complying
Improvement or remedy the non-compliance and the Owner shall reimburse the Association for
all expenses incurred in connection therewith upon demand. If such expenses are not promptly
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repaid by the Owner to the Association, the Board shall levy an Enforcement Assessment against
such Owner for reimbursement.
8.6.2 Failure to Notify. If for any reason the Board fails to notify the
Owner of any non-compliance within 90 days after receipt of said notice of completion from the
Owner, the Improvement shall be deemed to be in accordance with said approved Plans and
Specifications.
8.7 Government Regulations. If there is any conflict between the requirements or
actions of the Board and the mandatory regulations or ordinances of any governmental entity
relating to the Property, the government regulation or ordinance, to the extent that such
regulations and ordinances are more restrictive, shall control and the Board 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 shall nonetheless apply. The application by an Owner for review and approval by
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 applicable statute or law, or governmental rule
or regulation or public utility requirement (hereinafter collectively referred to as "Additional
Requirements"); provided, however, if the Additional Requirements are less restrictive than the
provisions of this Declaration, the provisions of this Declaration shall nonetheless apply.
Although the Board has the right to require evidence of City approval of the Alterations as a
condition to review of the final Plans and Specifications, nothing contained herein shall impose
on the Board the duty to obtain evidence of approval by the City of any Alterations as a
condition to issuance of final approval or any liability on the Association as a result of the failure
of the Board to request evidence of City approval.
8.8 Diligence in Construction. Upon final approval by the Board of any Plans and
Specifications, the Owner shall promptly commence construction and diligently pursue the same
to completion. In addition, each Owner shall cause all work to be as non-disruptive as
practicable to the Property and the Invitees, Lessees, employees and Owners who use the
Property. Each Owner shall disrupt traffic flow and parking as little as possible during
construction and shall clean up daily any construction debris to the extent reasonably practicable.
8.9 Fee for Review. The Board shall have the right to retain third party consultants,
and establish a fee for the review and approval of Plans and Specifications that must be
submitted to the Board pursuant to the provisions of this Article, which fee shall not be less than
Five Hundred Dollars (S500.00). The Board shall have the right to hire any engineer or other
consultant, the opinion of which the Board deems necessary in connection with its review of any
plans submitted by any Owner and such Owner shall be liable for payment of such engineer's
and/or consultant's fee, which payment shall be in addition to the fee for review and approval of
Plans and Specifications.
8.10 Compensation. The Board shall receive no compensation for services rendered,
other than reimbursement by the Association for expenses incurred by them in the performance
of their duties hereunder, unless the Association retains a professional architect, engineer or
designer as a member of the Board for the purpose of providing professional services, in which
event reasonable compensation for such member shall be approved by the Board.
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8.11 Interpretation and Appeal. All questions of interpretation or construction of
any of the terms or conditions herein shall be resolved by the Board, and its decision shall.be
final, binding and conclusive on all of the parties affected.
8.12 Waiver. The approval by the Board of any Plans and Specifications for any work
done or proposed, or for any other matter requiring the approval of the Board under this
Declaration, shall not be deemed to constitute a waiver of any right to withhold approval of any
similar plan, drawing, specification or matter subsequently submitted for approval.
8.13 Estoppel Certificate. Within 30 days after written demand is delivered to the
Board by any Owner, and upon payment to the Association of a reasonable fee (as fixed from
time to time by the Association), the Board shall issue to such Owner an estoppel certificate,
executed by a majority of its members, stating (with respect to any Condominium of said
Owner): (a) whether the Alterations made and other work completed by said Owner were
submitted to and approved by the Board, and (b) whether the Board has any knowledge, without
any duty of investigation or inquiry, of any non-compliance of such Alterations or work with the
provisions of the Governing. Documents. Any purchaser from the Owner, or from anyone
deriving any interest in said Unit through such Owner, shall be entitled to rely on said certificate
with respect to the matters therein set forth, such matters being conclusive as between the
Association, Declarant and all Owners and such persons deriving any interest through them.
8.14 Liability. Neither any Declarant, the-Board nor any member thereof shall be
liable to the Association or to any Owner for any damage, loss or prejudice suffered or claimed
on account of (a) the approval or disapproval of any plans, drawings and specifications, whether
or not defective; (b) the construction or performance of any work, whether or not pursuant to
approved Plans and Specifications; (c) the development of the Project or any property within the
Project; or (d) the execution and delivery of an estoppel certificate pursuant to Section 8.13,
whether or not the facts therein are correct, provided, however, that such Board member has
acted in good faith on the basis of such information as may be possessed by him. Without in any
way limiting the generality of the foregoing, the Board, or any member thereof, may, but is not
required to, consult with or hear the views of the Association or. any Owner with respect to any
plans, drawings, specifications or any other proposal submitted to the Board.
8.15 Non-Applicability to Declarant. The provisions of this Article shall not apply to
any Improvements installed by any Declarant.
8.16 Government Requirements. The application to and the review and approval by
the Board of any proposals, plans or other submittals shall in no way be deemed to be
satisfaction of or compliance with any building permit process or any other governmental
requirements, the responsibility for which shall lie solely with the respective Owner.
8.17 Variances. The Board may authorize variances from compliance with any of the
architectural provisions of this Declaration. Such variances must be evidenced in writing and
must be signed by at least two (2) members of the Board. If such variances are granted, no
violation of the covenants, conditions and restrictions contained in this Declaration shall be
deemed to have occurred with respect to the matter for which the variance was granted. The
granting of such a variance shall not operate to waive any of the terms and provisions of this
Declaration for any purpose except as to the particular Unit and the particular provision hereof
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covered by the variance, nor shall it affect in anyway the Owner's obligation to comply with all
governmental laws and regulations affecting its use of the Condominium, including without
limitation, zoning ordinances or other requirements imposed by the City or any other
governmental authority.
8.18 Appointment of Architectural Committee. The Board shall have the right to
delegate its review and approval rights under this Article 8 to an Architectural Committee. If the
Board so elects, the Architectural Committee shall consist of three (3) members. One alternate
member may be designated by the Board to act as a substitute on the Architectural Committee in
the event of absence or disability of any member. In the event the Board appoints an
Architectural Committee, all rights hereunder shall apply to the Architectural Committee and all
references to the Board shall be deemed to refer to the Architectural Committee.
8.18.1 Appeal. If the Board establishes an Architectural Committee and the
Architectural Committee disapproves any Plans and Specifications submitted by an Owner
pursuant to this Article, the party or parties making such submission may appeal in writing to the
Board. The Board must receive the written request not more than 30 days following the final
decision of the Architectural Committee. Within 30 days following receipt of the written request
for appeal, the Board shall render its written decision. The failure of the Board to render a
decision within the 30 day period shall be deemed a decision against the appellant. The decision
of the Board shall be binding and final. . .^;^-
ARTICLE 9
DEVELOPMENT RIGHTS
9.1 Limitations of Restrictions. Declarant is undertaking the work of developing,
marketing and/or selling Condominiums and other Improvements within the Project. The
completion of the development work and the marketing and sale, rental and other disposition of
the Condominiums is essential to the establishment and marketing of the Property as a first-class
office condominium project. In order that the work may be completed, nothing in this
Declaration shall be interpreted to deny Declarant the rights set forth in this Article or any other
rights of Declarant set forth in this Declaration which rights shall, unless otherwise provided
below, continue so long as Declarant is actively developing, marketing and/or selling
Condominiums and thereafter shall terminate.
9.2 Access. Declarant, its contractors and subcontractors and any other party
Declarant designates, shall have the right to obtain access over and across the Common Area and
Association Property of the Project or do within any Unit owned by it whatever is reasonably
necessary or advisable in connection with the completion of the Project and the development,
marketing and maintenance thereof. The Declarant shall also have the right to reserve easements
and restrict access over the Common Area and Association Property for the purpose of
constructing the Condominiums and/or other Improvements to the Project.
9.3 Rights to Complete Construction. Declarant, its contractors and subcontractors
and any other party Declarant designates shall have the rights set forth below.
9.3.1 Construct Improvements. Declarant, its contractors and
subcontractors and any other party Declarant designates shall have the right to erect, construct
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and maintain on the Common Area and the Association Property of the Project or within any
Unit owned by it (i) such structures or Improvements, including without limitation, sales offices
and signs, as may be reasonably necessary for the conduct of its business to complete the work
and convey the Units by sale, lease or otherwise, as determined by Declarant in its sole
discretion, and (ii) additional Improvements as Declarant deems advisable before completion and
sale of the entire Project.
9.3.2 Grant Easements. Declarant shall have the right to establish and/or
grant over and across said Common Area and the Association Property such easements and
rights of way on, over, under or across all or any part thereof to or for the benefit of the State of
California, the City, the County or any other political subdivision or public organization, or any
public utility entity or cable television provider, for the purpose of constructing, erecting,
operating and maintaining Improvements thereon, therein or thereunder at that time or at any
time in the future, including without limitation: (i) roads, streets, walks and driveways;
(ii) poles, wires and conduits for transmission of electricity, providing telephone service and
cable television service to the Project and for the necessary attachments in connection therewith;
and (iii) public and private sewers, sewage disposal systems, storm water drains, land drains and
pipes, water systems, sprinkling systems, water, heating and gas lines or pipes and any and all
equipment in connection therewith. The Common Area and the Association Property shall be
subject to any dedications stated in any subdivision map or easements'for public use for
installation, maintenance and operation of facilities for public utilities over all of the Common
Area and the Association Property. Said public utilities easement shall inure and run to all
franchised utility companies and to the City, the County and the State and shall include the right
of ingress and egress over the Common Area and the Association Property by vehicles of the
City, the County and the State and such utility companies to properly install, maintain, repair,
replace and otherwise service such utility facilities. The grant of said public utility easement
shall not be interpreted to imply any obligation or responsibility of any such utility company or
the City, the County or the State for maintenance or operation of any of the Common Area and
the Association Property or the facilities located thereon or the repair, replacement or
reconstruction thereof except as occasioned by such utility companies or City or County of the
Utility Facilities for which they are responsible. Except for lawful and proper fences, structures
and facilities placed upon the Common Area and the Association Property by utility companies,
the Common Area and/or Association Property subject to the public utility easement shall be
kept open and free from Buildings and structures. The City and County furthermore is granted
an easement across the Common Area and/or Association Property for ingress and egress for use
by emergency vehicles of the City or County.
9.4 Size and Appearance of Project. Declarant shall not be prevented from
changing the exterior appearance of Common Area and the Association Property structures, the
landscaping or any other matter directly or indirectly connected with the Project in any manner
deemed desirable by Declarant, if Declarant obtains governmental consents required by law.
9.5 Marketing Rights. Subject to the limitations of this Declaration, Declarant shall
have the right to: (i) maintain sales offices, storage areas and related facilities in any unsold
Condominiums, Common Area and the Association Property within the Project as are necessary
or reasonable, in the opinion of Declarant, for the sale or leasing of the Condominiums; (ii) make
reasonable use of the Common Area and the Association Property and facilities for the marketing
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of Condominiums (including without limitation, granting rights of ingress and egress over the
Association Property and the Common Areas to prospective purchasers and tenants in connection
with such marketing activities); (iii) post signs, flags and banners in connection with its
marketing; and (iv) conduct its business of disposing of Condominiums by sale, lease or
otherwise.
9.6 Title Rights. This Declaration shall not be construed to limit the right of
Declarant at any time prior to such an assignment to establish additional licenses, reservations
and rights-of-way to itself, to utility companies, to the City, to the County, to the State, or to
others as may be reasonably necessary to the proper development and disposal of property
owned by Declarant.
9.7 Power of Attorney. Each Owner of a Condominium in the Project, by accepting
a deed to a Condominium, shall be deemed to have irrevocably appointed Declarant, for so long
as Declarant owns all or any portion of the Property, as its attomey-in-fact, for itself and each of
its Mortgagees, optionees, grantees, licensees, trustees, receivers, Lessee, tenants, judgment
creditors, heirs, legatees, devisees, administrators, executors, legal representatives, successors
and assigns, whether voluntary or involuntary, and thereby to have conveyed a power of attorney
coupled with an interest to Declarant as its attomey-in-fact to prepare, execute, acknowledge and
record any Condominium Plan or amendment to the Condominium Plan for all or any portion of
the Property regardless of whether Declarant owns any interest in the property which is the
subject of such Condominium Plan or amendment to such Condominium Plan. However,
nothing herein shall be deemed or construed as an agreement by Declarant that any Owner shall
be entitled to any participation in or discretion over the preparation and recordation of a
Condominium Plan or amendment to a Condominium Plan for all or any portion of the Property.
The acceptance or creation of any Mortgage or other encumbrance, whether or not voluntary,
created in good faith, or given for value, shall be deemed to be accepted or created subject to
each of the terms and conditions of the power of attorney described in this Section.
9.8Supplementarv Condominium Plans and Supplementary Declarations. So long
as Declarant owns any portion of the Property, Supplementary Declarations and Supplementary
Condominium Plans may be recorded by Declarant, without the consent of any Owner, for any
of the purposes for which a Supplementary Condominium Plan or a Supplementary Declaration
may be recorded.
ARTICLE 10
INSURANCE
10.1 Association's Insurance Obligations
10.1.1 Liability Insurance. The Association shall obtain and maintain
liability insurance providing coverage at least as broad as a current ISO commercial general
liability insurance form or its equivalent, insuring the Association, the Declarant (as long as
Declarant is the Owner of any Condominium and/or has any rights under Article 9 of this
Declaration), and the Owners against liability arising from the ownership, operation,
maintenance and use of the Common Area and the Association Property by the Association and
the performance by the Association of its duties under this Declaration. Coverage for such
matters shall be primary to any coverage provided by any other liability insurance policy
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maintained by such insureds. The limits of such insurance shall not less than Three Million
Dollars ($3,000,000) per occurrence and Three Million Dollars ($3,000,000) general and shall at
all times meet or exceed the minimum requirements of Section 1365.9 of the California Civil
Code. Such insurance shall include the endorsements required pursuant to Section 12.2 of the
Master Declaration. If reasonably available as determined by the Board, such insurance shall
include (a) coverage against water damage liability; (b) coverage for medical payments; (c) a
broad form named insured endorsement; and (d) a cross-liability or severability of interest
endorsement insuring each insured against liability to each other insured. Such insurance may
also include coverage against any other liability customarily covered with respect to properties
similar in construction, location and use, all as may be determined by the Board.
10.1.2 Property Insurance. The Association shall obtain and maintain
property insurance for the risks covered by, and providing coverage at least as broad as, a current
ISO "special form" (a/k/a/ "all-risk") policy or its equivalent, insuring (i) all Improvements
upon, within or comprising the Common Area, the Association Property and any other areas to
be maintained by the Association, including fixtures and building service equipment which are
part thereof; and (ii) all personal property owned or maintained by the Association. Such
insurance shall be maintained in the amount of the maximum insurable replacement value of the
property to be insured thereunder, as determined annually. Such coverage may exclude land,
foundations, excavations, or other items typically excluded from property insurance coverage on
properties similar in construction, location and use. Such insurance shall cover, if reasonably
available as determined by the Board, loss of rents or income to the Association from any source
including assessments, as well as extra expenses, expediting expenses, and continuing fixed
expenses. Whenever any Improvements or alterations to the property insured by the Association
are in the course of construction, the insurance required under this Section, to the extent
necessary or appropriate as reasonably determined by the Board, shall be provided under
"builders risk" coverage forms.
(a) Units. The property insurance maintained by the Association shall
also cover any portions of the Units not required to be insured by the Owners pursuant to Section
10.2.1.
(b) Endorsements. The property insurance policy shall include, to the
extent reasonably available as determined by the Board, the following endorsements or their
equivalents; agreed amount; boiler and machinery (to the extent applicable); inflation guard;
ordinance or law; replacement cost; and pollution claims including mold. Such policy may also
include such other endorsements as may customarily be obtained with respect to properties
similar in construction, location and use, all as may be determined by the Board.
(c) Earthquake Insurance. ALL OWNERS AND THE
ASSOCIATION ACKNOWLEDGE THAT EARTHQUAKE INSURANCE IS NOT
INCLUDED IN THE PROJECT BUDGET AND IS NOT BEING OBTAINED BY
DECLARANT FOR THE BENEFIT OF THE OWNERS OR THE ASSOCIATION. NEITHER
DECLARANT NOR THE ASSOCIATION IS OBLIGATED TO MAINTAIN EARTHQUAKE
INSURANCE ON THE PROJECT OR ANY PORTION THEREOF. Declarant or any Owner
(and/or their respective Mortgagees) may maintain earthquake insurance for their own benefit,
but the premiums therefor may not be included by Declarant or the Association in the
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assessments. Notwithstanding the foregoing, at such time as the Board is no longer controlled by
Declarant, the Associalion may (in its discretion, but without any obligation to do so) obtain
earthquake insurance from time to time, on those portions of the Project that are to be insured by
the Association as provided above in this Declaration in such amounts, and subject to such
coverage terms and deductibles as the Board may determine. If so obtained, the premiums for
such earthquake insurance may be included in the assessments. All parties acknowledge that
earthquake insurance typically provides limited coverage and is very expensive, and if purchased
by the Association a material increase in assessments may be required to cover the additional
cost of such insurance.
(d) Primary. With respect to all real and personal property to be
insured by the Association under this Declaration, the property insurance maintained by the
Association shall be primary and noncontributing with any other property insurance maintained
by an Owner covering the same loss.
(e) Adjustment of Losses. The Association shall timely file, pursue
and complete the adjustment o,f all claims arising under the property insurance policies carried by
the Association. The Board is appointed attorney-in-fact by each Owner to negotiate and agree
on the value and extent of any property damage which is covered under any property insurance
policy carried by the Association. The Board is granted full right and authority to compromise
and settle any property damage claim under any policy of property insurance carried by the
Association or enforce any such claim by legal action or otherwise and to execute releases in
favor of any insurer with respect to any such claim.
(1) Payment of Insurance Proceeds. Subject to the rights of
Mortgagees, the proceeds from such property insurance shall be payable to the Association or an
insurance trustee ("Trustee") to be held and expended pursuant to this Declaration for the benefit
of the Association and the Owners (including, if applicable, Declarant) as their respective
interests shall appear.
(g) Waiver of Claims and Subrogation. The Association waives all
claims against the Owners for any damage to the real and personal property that the Association
is obligated under this Declaration to insure (including without limitation any loss of use of such
property), except that the Association may claim against an Owner for property damage caused
by that Owner to the extent (i) that the peril causing such damage is not covered by the property
insurance required by this Declaration to be maintained by the Association (or, if greater, by the
property insurance which is actually maintained by the Association), provided that such Owner's
liability for such uninsured damage is limited to the amount of liability insurance required to be
maintained by such Owner pursuant to this Declaration; (ii) of the amount of the deductible or
self-insured retention loss sustained by the Association, if any, if the peril causing such damage
is covered by the Association's property insurance, provided that such Owner's liability for such
deductible or self-insured retention loss is limited to the amount of liability insurance required to
be maintained by such Owner pursuant to this Declaration; or (iii) that such damage is caused by
the gross negligence or willful misconduct of that Owner. Any property insurance policy
obtained by the Association must contain a waiver of subrogation rights by the insurer consistent
with this Section; provided, however, that a failure or inability of the Association to obtain such
a waiver from an insurer shall not defeat or impair the waivers between the Association and the
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Owners as set forth herein. If an Owner is liable for damage under this Section, the Association
may, after Notice and Hearing, levy an Enforcement Assessment against such Owner for such
liability and also for the amount of the increase, if any, in the Association's property insurance
premiums directly attributable to such damage.
The waivers of claims and subrogation set forth in this subsection apply only in favor of
the Owners and do not limit or waive, release or discharge any claims that the Association (or its
insurers) may have against any third party, including without limitation any contractor, Service
Provider, agent, or Invitee; provided, that such waivers shall also apply in favor of an Owner's
tenant occupying a Unit under a written Lease if and to the extent that the Owner has similarly
agreed in such Lease to a waiver of claims and subrogation against such tenant.
10.1.3 Fidelity Bond. The Association shall maintain a fidelity bond in an
amount equal to the greater of (a) the estimated maximum amount of funds, including reserves,
expected to be regularly held by or on behalf of the Association at any given time during the
term of the fidelity bond; and (b) three (3) months' aggregate of the Regular Assessments on all
Units plus any reserve funds. .The bonds shall name the Association as obligee and shall insure
against loss by reason of the acts of the employees of the Association, if any, and any managing
agent and its employees, whether or not such persons are compensated for their services.
10.1.4 Worker's Compensation Insurance. The Association shall maintain
worker's compensation insurance to the extent necessary to comply with all Applicable Laws.
10.1.5 Directors and Officers Insurance. The Association shall maintain a
policy insuring the Association's officers and directors against liability for their acts or
omissions while acting in their capacity as officers and directors of the Association. The limits
of such insurance shall be not less than Two Million Dollars ($2,000,000).
10.1.6 General Policy Requirements. All insurance policies the Association
is required to obtain pursuant to this Article shall be placed and maintained with companies rated
at least "A-/VII" by A.M. Best Insurance Service and otherwise reasonably satisfactory to the
Association. Such insurance policies may have reasonable deductible amounts comparable to
those customarily maintained with respect to properties similar in construction, location and use,
as may be determined by the Board. The coverage amounts required for such insurance policies
may be satisfied by any combination of primary and excess policies that collectively serve to
satisfy the requirements of this Article.
10.1.7 Copies of Policies. Copies of all insurance policies of the Association
shall be retained by the Association and be available for inspection by Owners at reasonable
times. All such insurance policies shall provide that they shall not be cancelable or substantially
modified by the insurer without first giving at least 30 days prior notice in writing to the Owners
and their Mortgagees. In addition to the foregoing, the Association shall provide to the Owners
such information regarding the insurance of the Association as may be required by Applicable
Law or under the Bylaws.
10.2 Owners* Insurance Obligations
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10.2.1 Property Insurance. Each Owner shall obtain and maintain at its sole
expense property insurance for the risks covered by, and providing coverage at least as broad as,
a current ISO "special form" (a/k/a/ "all-risk") policy or its equivalent, insuring (i) all
Improvements within the Unit or any Exclusive Use Easement Areas; and (ii) any personal
property (including property under the care, custody, or control of the Owner, except the
Association's property) that may be located in, upon or about the Unit (collectively referred to as
the "Owner's Property") for an amount equal to the maximum insurable replacement value
thereof.
(a) Auto Insurance. Each Owner shall obtain and maintain at its sole
expense insurance for the risks covered by, and providing coverage at least as broad as, a current
ISO form automobile insurance policy or its equivalent containing the broadest coverage
provisions typically available in such a policy, insuring against damage to all vehicles owned or
operated by such Owner as well as liability for bodily injury and property damage caused to
others arising from such operation), including coverage for owned, hired and non-owned
automobiles, with liability limits of not less than One Million Dollars ($1,000,000) Combined
Single Limit each accident for Bodily Injury and Property Damage combined. The Association
shall have no liability for any loss or damage caused by the Association to any vehicle located
upon or around the Project except to the extent caused by the gross negligence or willful
misconduct of the Association or its managing agent. "•••
(b) Waiver of Claims and Subrogation. Each Owner waives all
Claims against the Association for any damage to the real and personal property (including
vehicles) that such Owner is obligated under this Declaration to insure (including without
limitation any loss of use of such property), except that an Owner may claim against the
Association for property damage to the extent that the damage is caused by the gross negligence
or willful misconduct of the Association or its managing agent. Any property insurance policy
obtained by an Owner must contain a waiver of subrogation rights by the insurer consistent with
this Section; provided, however, that a failure or inability of an Owner to obtain such a waiver
from an insurer shall not defeat or impair the waivers between the Owners and the Association as
set forth herein.
The waivers of Claims and subrogation set forth in this subsection apply only in favor of
the Association and do not limit or waive, release or discharge any Claims that an Owner (or its
insurers) may have against any third party, including without limitation any contractor, Service
Provider, agent, other Owner, or Invitee; provided, that such waivers shall also apply in favor of
the Association's managing agent if and to the extent that the Association has similarly agreed in
a written management agreement to a waiver of Claims and subrogation against such managing
agent.
10.2.2 Liability Insurance. Each Owner shall, at such Owner's sole cost and
expense maintain liability insurance providing coverage at least as broad as the current ISO
commercial general liability insurance form or its equivalent (including coverage for medical
payments), insuring the Owner against liability arising from the ownership, operation,
maintenance and use of the Owner's Unit and Exclusive Use Common Area by such Owner.
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(a) Limits of Liability for Commercial/Retail Units. Liability
insurance maintained by Owners shall have limits of liability of not less than One Million
Dollars (51,000,000) per occurrence and One Million Dollars (51,000,000) general aggregate.
10.2.3 Copies of Policies. Copies of all insurance policies that an Owner is
required to maintain pursuant to this Declaration, or a certificate of such insurance, shall be
delivered to the Association upon request. All policies shall indicate they may not be canceled
or modified without 30 days prior written notice to the Association. The acceptance of a copy of
an insurance policy by the Association from an Owner shall not constitute a waiver of any of the
insurance requirements set forth herein.
10.2.4 General Policy Requirements. All insurance policies the Owners are
required to obtain pursuant to this Article shall be placed and maintained with companies rated at
least "B/V1I" by A.M. Best Insurance Service and otherwise reasonably satisfactory to the
Association. The coverage types and amounts required for such insurance may be satisfied by
any combination of primary and excess policies that collectively serve to satisfy the requirements
of this Article, including without limitation condominium unit owners' policy forms that provide
both property damage and liability insurance coverage under one policy.
10.3 Review of Insurance. The Board shall review the adequacy of all insurance
required by this Declaration to be maintained by the Association and by the Owners at least once
every year. The review shall include a reasonable determination of the replacement cost of all
real and personal property required to be insured by the Association in accordance with Section
10.1 of this Declaration without respect to depreciation. ..,.;•••:
10.4 Board's Authority to Revise Insurance Requirements. Subject to any statutory
insurance requirements, the Board shall have the power and right to adjust and modify the
insurance requirements for Owners and the Association set forth herein to require coverage and
protection that is customarily carried by and reasonably available to prudent owners and
associations of projects similar in construction, location and use provided, however, that such
coverage requirements must meet the minimum requirements set forth in Article 12 of the
Master Declaration. If the Board elects to materially reduce the coverage required to be
maintained by the Association from the coverage required in this Article 10, the Board shall
make all reasonable efforts to notify the Owners and Mortgagees of the reduction in coverage
and the reasons therefor at least 30 days prior to the effective date of the reduction. The
Association, and its directors and officers, shall have no liability to any Owner or Mortgagee if,
after a good faith effort, the Association is unable to obtain one or more of the insurance
coverages required hereunder to the extent the insurance is no longer available, or, if available,
the insurance can be obtained only at a cost that the Board, in its sole discretion, determines is
unreasonable under the circumstances, or if the Owners fail to approve any assessment increase
needed to fund the insurance premiums. An Owner shall not be in breach of its obligations
hereunder solely as a result of the inability to obtain insurance if, after a good faith effort, the
Owner is unable to obtain one or more of the insurance coverages required hereunder to the
extent the insurance is no longer available, of if available, the insurance can be obtained only at a
cost that the Board, in its sole discretion, agrees is unreasonable under the circumstances.
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ARTICLE 11
DESTRUCTION OF
IMPROVEMENTS AND CONDEMNATION
11.1 Restoration Defined. As used in this Article 11, the term "restore" shall mean
repairing, rebuilding or reconstructing damaged Improvements to substantially the same
condition and appearance in which it existed prior to fire or other casualty damage.
11.2 Insured Casualty. If any Improvement required to be maintained by the
Association is damaged or destroyed from a risk covered by the insurance required to be
maintained by the Association, then the Association shall, to the extent permitted under existing
laws, restore the Improvement to the same condition as it was in immediately prior to the
damage or destruction. The Association shall proceed with the filing and adjustment of all
Claims arising under the existing insurance policies. The insurance proceeds shall be paid to and
held by the Association or an insurance Trustee selected under the provisions of
Section 10.1.2(0-
11.3 Restoration Proceeds.
11.3.1 Sufficient Proceeds. The costs of restoration of the damaged
Improvement shall be paid first from any insurance proceeds paid to the Association under
existing insurance policies. If the insurance proceeds exceed the costs of restoration, the excess
proceeds shall be paid into reserves and held for the benefit of the Association. If the insurance
proceeds are insufficient to restore the damaged Improvement, the Board shall then add to the
insurance proceeds ail reserve account funds designated for the repair or replacement of the
damaged Improvement. If the total funds then available are sufficient to restore the damaged
Improvement, the Improvement shall be restored. If the aggregate amount of insurance proceeds
and such reserve account funds are insufficient to pay the total costs of restoration, a Special
Assessment against all Owners shall be levied by the Board up to the maximum amount
permitted without the approval of the Members in accordance with the limitations set forth in
this Declaration and by law. If the total funds then available are sufficient to restore the
damaged Improvement, the Improvement shall be restored.
11.3.2 Insufficient Proceeds. If the total funds available to the Association
are still insufficient to restore the damaged Improvement, then the Board first shall attempt to
impose an Additional Special Assessment pursuant to Subsection (a) below; and second to use a
plan of alternative reconstruction pursuant to Subsection (b) below. If the Members do not
approve such actions, then the entire Building of which the damaged Improvement is a part shall
be sold pursuant to Subsection (c) below.
(a) Additional Special Assessment. If the total funds available to
restore the damaged Improvement are insufficient, then a meeting of the Members shall be called
for the purpose of approving a Special Assessment to make up all or a part of the deficiency
("Additional Special Assessment"). If the amount of the Additional Special Assessment
approved by the Members, and the amounts available pursuant to Section 11.3.1 above, are
insufficient to restore the damaged Improvement, or if no Additional Special Assessment is
approved, the Association shall consider a plan of Alternative Reconstruction in accordance with
Subsection (b).
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(b) Alternative Reconstruction. The Board shall consider and
propose plans to reconstruct the damaged Improvement making use of whatever funds are
available to it pursuant to Section 11.3.1 and Subsection (a) above ("Alternative
Reconstruction"). All proposals shall be presented to the Owners. If two-thirds of the Voting
Power of the Owners whose Units were materially damaged, as determined by the Association
("Affected Owners") and a Majority of the Voting Power of the Members, including the
Affected Owners, agree to any plan of Alternative Reconstruction, then the Board shall contract
for the reconstruction of the damaged Improvement in accordance with the plan of Alternative
Reconstruction making use of whatever funds are then available to it. If no plan of Alternative
Reconstruction is agreed to, then the provisions of Subsection (c) shall apply.
(c) Sale of Building. If the damaged Improvement is part of a
Building ("Damaged Building"), the damage renders one or more of the Condominiums
uninhabitable, and the Improvements will not be restored in accordance with the provisions of
Subsections (a) and (b) above, the Board, as the attorney-in-fact for each Owner of a
Condominium in the Damaged Building, shall be empowered to sell the Damaged Building,
including all Condominiums therein, in their then present condition, on terms to be determined
by the Board, provided that the Board receives adequate assurances that the purchaser shall, and
has the financial capability to: (i) restore the Damaged Building (either by renovation or
removal and rebuilding), (ii) remove the Damaged Building (including foundations), grade the
Project, and appropriately landscape or otherwise improve the Project, or (iii) perform any
combination of the foregoing. Any work to be performed by the purchaser with respect to any of
the foregoing shall be subject to the provisions of this Article II and the provisions of the
Master Declaration. In lieu of selling the Damaged Building to a third person, the Association
may purchase the Building on satisfaction of the following conditions:
(i) Members holding at least sixty seven percent (67%) of the
total Voting Power (including the votes allocated to the Condominiums within the Damaged
Building) approve of the purchase;
(ii) the purchase price is the fair market value of the Damaged
Building as of the date of sale as determined by an appraisal made by a qualified and
independent real estate appraiser;
(iii) any Special Assessment needed to fund the purchase price
shall be levied against all Condominiums, including the Condominiums within the Damaged
Building;
(iv) the Association has an adequate source of funds to repair,
renovate or rebuild all or a portion of the Damaged Building and/or to remove and appropriately
landscape the remaining portions of the Project. For this purpose, no Condominium that is being
purchased shall be subject to any assessment intended to be used as a source of such funds.
(d) Distribution of Proceeds. The proceeds from the sale, together
with the insurance proceeds received and any reserve funds allocated to the Damaged Building,
after deducting therefrom the Association's sale expenses, including commissions, title and
recording fees, and legal costs, shall be distributed among the Owners of Condominiums in the
Damaged Building and their respective Mortgagees, in proportion to the respective fair market
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values of these Condominiums immediately prior to the date of the event causing the damage as
determined by an independent appraisal made by a qualified real estate appraiser selected by the
Board.
If a Damaged Building is removed and not restored so that the new Building contains the
same number of Condominiums as the removed Building, the Board shall take appropriate steps
to adjust the property interests of the remaining Owners and to effect such amendments as may
be necessary to the Declaration, the Condominium Plan and the Map to reflect the revised
property interests and other related changes. .
11.4 Rebuilding Contract. If there is a determination to restore, the Board or its
authorized representative shall obtain bids from at least two (2) licensed and reputable
contractors and shall accept the repair and reconstruction work from whomever the Board
determines to be in the best interests of the Members. The Board shall have the authority to
enter into a written contract with the contractor for such repair and reconstruction, and the
insurance proceeds shall be disbursed to the contractor according to the terms of the contract.
The Board shall take all steps necessary to assure the commencement and completion of
authorized repair and reconstruction at the earliest possible date. Such construction shall be
commenced no later than 180 days after the event requiring reconstruction and shall thereafter be
diligently prosecuted to completion. Such construction shall return the Project to substantially
the same condition and appearance in which it existed prior to the damage or destruction.
11.5 Authority to Effect Changes. If any Building or portion thereof containing
Condominiums is damaged or destroyed or in need of renovation or rehabilitation and the
Building is repaired or reconstructed, the Building may be repaired or reconstructed in a manner
that alters the boundaries of the Units or Common Area and Association Property provided the
following conditions are satisfied.
(i) the Alteration has been approved by the Board of Directors
and by a Majority of the Voting Power of the Association;
(ii) the Board of Directors has determined that the Alteration is
necessary in order to comply with current building code requirements, to meet current building
construction standards and procedures, or to improve the conditions and quality of the Building;
(iii) the Alteration does not materially change the location of
any Unit or materially reduce the size of any Unit without the consent of the Unit Owner. For
purposes herein, a material reduction in the size of the Unit shall mean any Alteration that
decreases the Square Footage of the interior floor space of the Unit by more than 10% from that
which was originally constructed by any Declarant;
(iv) the Board of Directors has determined that any Alteration
that will relocate or reduce the Common Area and Association Property will not unreasonably
interfere with the rights of the Owners and occupants to use and enjoy the Common Area and
Association Property; and
(v) the Condominium Plan is amended to reflect the Alteration
to the Units or Common Area and/or Association Property.
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Each Owner irrevocably appoints the Association as that Owner's attorney-in-fact and
irrevocably grants to the Association the full power in the name of the Owner to effect any
Alteration to any Unit or Common Area and Association Property as authorized above, including
without limitation, the execution, delivery and recordation of any Condominium Plan
amendments, deeds or other instruments.
11.6 Minor Repair and Reconstruction. The Board shall have the duty to repair and
reconstruct Improvements, without the consent, of Members and irrespective of the amount of
available insurance proceeds, in all cases of partial destruction when the estimated cost of repair
and reconstruction does not exceed five (5%) percent of the annual budgeted gross expenses of
the Association. The Board is expressly empowered to levy a reconstruction assessment for the
cost of repairing and reconstructing Improvements to the extent insurance proceeds are
unavailable, such assessment to be levied as described above (but without the consent or
approval of Members, despite any contrary provisions in this Declaration) ("Reconstruction
Assessment").
11.7 Damage or Destruction to a Unit. If there is damage or destruction to any Unit,
the Owner thereof shall, at its own cost and expense, perform interior repair and restoration
which shall be completed as promptly as practical and in a lawful and workmanlike manner, and,
to the extent required under Article 8 and the Architectural Guidelines, in accordance with plans
approved by the Board as provided in Article 8 herein.
11.8 Condemnation of Common Area/Association Property. If any portion of the
Common Area and/or the Association Property is taken by condemnation, eminent domain or
any proceeding in lieu thereof, then the Owners of the Common Area and Association Property,
and their Mortgagees as their respective interests then appear, shall be entitled to receive a
distribution from the award for such taking in the same proportion as insurance proceeds would
be distributed pursuant to the provisions above; provided, however, that should it be determined
to repair or rebuild any portion of the Common Area and/or the Association Property, such
proceeds shall be paid to the Association for that purpose in the same manner and subject to the
same terms, conditions and limitations as are set forth above in this Article for repairing
damaged or destroyed portions of the Common Area and/or the Association Property. A
decision to repair or rebuild shall be made in the same manner and subject to the same conditions
and limitations as provided above in this Article for determining whether to rebuild or repair
following damage or destruction.
11.9 Condemnation Of A Condominium. In the event of any taking of a
Condominium, the Owner (and such Owner's Mortgagees as their interests may appear) of the
Condominium shall be entitled to receive the award for such taking and after acceptance thereof
such Owner and such Owner's Mortgagee shall be divested of all further interest in the
Condominium and membership in the Association if such Owner shall vacate such Owner's Unit
as a result of such taking. In such event, said Owner shall grant its remaining interest in the
Common Area appurtenant to the Unit so taken, if any, to the other Owners owning a fractional
interest in the same Common Area, such grant to be in proportion to the fractional interest in the
Common Area then owned by each.
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11.10 Limitation on Liability. Except to the extent of any available insurance
proceeds hereunder, the Association and its agents, employees and consultants shall not be liable
to any Owner or any Occupant, for any failure of any Utility Facilities or other services which
are to be obtained or provided by the Association, or paid for as a Common Expense, or for
injury or damage to person or property caused by the elements or by any Owner, or any other
person, or resulting from electricity, water, ice or other elements which may leak or flow from or
over any portion of the Property or from any pipe, drain, conduit, appliance or equipment within
the Property. The Association and its agents shall not be liable to any Owner or any Invitee for
loss or damage, by theft or otherwise of articles which may be stored within the Common Area
or Association Property. No diminution or abatement of any assessments shall be claimed or
allowed for inconvenience or discomfort arising from the making of repairs or improvements to
the Common Area or Association Property, or from any action taken by the Association to
comply with any Applicable Laws.
ARTICLE 12
PARTITION AND SEVERABILITY
OFINTERESTS
12.1 Partition. Except as set forth below, there shall be no judicial partition of the
Common Area, or any part thereof, for the term of the Project, nor shall Declarant, any Owner or
any other person acquiring any interest in any Condominium in the Project seek any such judicial
partition. The undivided interest in the Common Area described above may not be altered or
changed as long as the prohibition against severability of interests in a Condominium remains in
effect as provided in this Declaration. Notwithstanding the foregoing, nothing in this
Declaration shall prevent partition or division of interest between joint or common owners of any
Condominium.
12.2 Power Of Attorney. Each of the Owners irrevocably appoints the Association as
attorney-in-fact and irrevocably grants to the Association full power in the name and stead of
such Owner to sell the entire Project, and to execute deeds and conveyances to it, in one or more
transactions, for the benefit of all Owners when partition of the Project may be had under
California Civil Code Section 1359. The power of attorney shall:
12.2.1 Be binding on all Owners, whether they assume the obligations under
this Declaration or not;
12.2.2 Be exercisable by a majority of the Board acting on behalf of the
Association, subject to obtaining the prior approval by vote or written consent of at least seventy-
five percent (75%) of the Owners and at least seventy-five percent (75%) of all Mortgagees; and
12.2.3 Be exercisable only after recordation with the County Recorder of a
certificate executed by those who have power to exercise the power of attorney that the power of
attorney is properly exercisable under the authority of this Declaration. This certificate shall be
conclusive evidence of proper exercise in favor of any person relying on it in good faith.
12.3 Prohibition Against Severance. An Owner shall not be entitled to sever such
Owner's Unit from such Owner's membership in the Association, and shall not be entitled to
sever such Owner's Unit and such Owner's membership from such Owner's undivided interest
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in the Common Area and the right to use the Association Property for any purpose. None of the
component interests in a Condominium can be severally sold, conveyed, encumbered,
hypothecated or otherwise dealt with, and any violation or attempted violation of this provision
shall be void. Similarly, no Owner can sever any exclusive easement appurtenant to such
Owner's Unit over the Common Area and Association Property from such Owner's
Condominium, and any attempt to do so shall be void. It is intended hereby to restrict
severability pursuant to California Civil Code Section 1358.
12.4 Conveyances. After the initial sales of the Condominiums, any conveyance of a
Condominium by an Owner shall be presumed to convey the entire Condominium. However,
nothing contained in this Section shall preclude the Owner of any Condominium from creating
an estate for life or years, cotenancy or joint tenancy in the ownership of the Condominium with
any other person or persons.
ARTICLE 13
RIGHTS OF MORTGAGEES
13.1 Mortgagee's Opportunity to Cure. In addition to the other rights of Mortgagees
set forth in this Declaration, during the continuance of any Mortgage and until such time as the
lien of any Mortgage has been extinguished, the Mortgagee shall-have the rights set forth below.
13.1.1 Payments by First Mortgagees. Any First Mortgagee shall have the
right, but not the obligation, and without payment of any penalty, to pay all of the amounts due
hereunder, to effect any insurance, to pay any taxes and assessments, to make any repairs and
Improvements, to do any act or thing required of the applicable Owner hereunder; and to do any
act or thing which may be necessary and proper to be done in the performance and observance of
the agreements, covenants and conditions hereof to prevent a default under this Declaration by
an Owner of the Condominium encumbered by such First Mortgagee's Mortgage. All payments
so made and all things so done and performed by a First Mortgagee shall be effective to prevent
a default under this Declaration as the same would have been if made, done and performed by
the defaulting Owner instead of by the First Mortgagee.
13.1.2 Notice to Mortgagees. At the request of a Mortgagee, the Association
and each Owner shall mail or deliver to such Mortgagee a duplicate copy of any and all notices
which the Association or each Owner may from time to time give to or serve upon another
Owner pursuant to the provisions of this Declaration and such copy shall be mailed or delivered
to each Mortgagee simultaneously with and in the same manner as the mailing or delivery of the
same to the other Owner.
13.2 Application of Charges to First Mortgagees. Each First Mortgagee who
obtains title pursuant to its remedies under the First Mortgage and any purchaser at a foreclosure
sale (but excluding a deed in lieu of foreclosure), shall take title to the Condominium free and
clear of any claims for unpaid payments, assessments and charges, and liens therefor, which
accrued prior to such acquisition of title. Except as provided in this Article 13, any such sale
shall extinguish such liens for payments, assessments and liens accrued prior to such acquisition
of title, but the purchaser or First Mortgagee who so acquires title shall be liable for payments
and impositions accruing after the date of such sale. Following any such sale, the Association
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shall seek payment of all unpaid payments, assessments and charges accruing prior to such
acquisition of title solely from the defaulting Owner as provided in this Declaration.
13.3 Limitation of Enforcement Against First Mortgagee. No violation of this
Declaration by, or enforcement of this Declaration against, an Owner shall impair, defeat or
render invalid, the lien of any First Mortgage, but this Declaration shall be enforceable against an
Owner whose title is acquired by foreclosure, trustee's sale, voluntary conveyance, assumption
or otherwise.
13.4 Damage or Destruction. Every First Mortgagee who has requested the
Association or an Owner to provide written notice with respect to (a) any substantial damage to
or destruction of Condominiums or Improvements and (b) any condemnation proceeding
involving, or any proposed acquisition by a condemning authority of, Condominiums or
improvements or any portion thereof, shall be entitled to timely written notice from the
Association or an Owner, as applicable.
13.5 Insurance and Condemnation, Proceeds. No provision of this Declaration shall
be construed to give any Owner or any other person priority over the rights of any First
Mortgagee with respect to the distribution of insurance proceeds or proceeds of losses to or a
condemnation of the Condominiums or Improvements encumbered by such First Mortgagee's
Mortgage.
ARTICLE 14
AMENDMENTS
14.1 City Notification and Approval. A copy of any proposed amendment to this
Declaration shall be provided to the City in advance. If the proposed amendment affects the
City, the City shall have the right to disapprove such amendment. A copy of the final approved
amendment shall be transmitted to the City within thirty (30) days for the official record. In
addition to the foregoing approval rights, there shall be no amendment to the provisions of
Section 6.15.6 of this Declaration without the prior written approval of the Planning Director of
the City, the City Engineer and the City Attorney.
14.2 Amendment Before the Close of First Sale. Before the close of the first sale of
a Condominium 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 and any Mortgagee of
record of an instrument amending or terminating this 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.
14.3 Amendments After the Close of First Sale. Except as may otherwise be stated
in this Declaration, after the close of the first sale of a Condominium in the Project to an Owner
other than Declarant this Declaration may be amended at any time and from time to time with the
vote or approval by written ballot of at least a Majority of the Voting Power of the Association.
The vote on a proposed amendment to the Declaration shall be held by secret written ballot in
accordance with the procedures set forth in California Civil Code Section 1363.03 and the rules
adopted by the Board pursuant thereto. Such amendment shall become effective upon the
recording of an amendment signed and acknowledged by the President or Vice President of the
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Association and the Secretary or Assistant Secretary of the Association certifying that such votes
or approval by written ballot have been obtained. For the purposes of recording such instrument,
the President or Vice-President and Secretary or Assistant Secretary of the Association are
hereby granted an irrevocable power of attorney to act for and on behalf of each and every
Owner in certifying and executing and recording said amendment with the Office of the County
Recorder.
14.4 Controlling Provisions. Each present and future Owner hereby waives the
provisions of Section 1355.5 of the California Civil Code and agrees that the provisions of this
Section 14.4 regarding amendments shall be controlling on each Owner. The Owners
acknowledge that, due to the limited number of Owners of Units, the fact that each of the
Owners are sophisticated commercial Owners and that each Owner has specific voting rights on
the Board, the Owners do not need the benefit of Civil Code Section 1355.5 relating to
amendments.
14.5 Further Approvals Regarding Amendments. Notwithstanding anything to the
contrary contained in this Declaration, the following additional approvals shall be required prior
to any amendment of the provisions of this Declaration set forth below:
(a) Sections 1.41,3.4.11,3.5.10,4.1.3,4.2.2, 7.2.1,8.2 (with regard to
the requirement that the Association consult with an Outside Consultant prior to approving any
Alterations that impact or affect in any manner the structural systems or structural integrity of a
Building), 15.3 and 15.4 et seg. of this Declaration shall not be amended without (a) the vote or
approval by written ballot of at least ninety percent (90%) of the Voting Power of the Members
of the Association, and (b) the vote or approval by written ballot of at least ninety percent (90%)
of the Mortgagees, and (c) for a period of 15 years after the date of recordation of this
Declaration, the prior written approval of Declarant.
(b) Article 8 of this Declaration (except for those provisions of
Section 8.2 which are addressed in Subsection (a) above) and Article 9 of this Declaration shall
not be amended without the written consent of Declarant so long as such Declarant is actively
developing, marketing or selling the Condominiums in the Project.
ARTICLE 15
ENFORCEMENT
15.1 Term. The covenants, conditions and restrictions of this Declaration shall run
with and bind the Property and shall inure to the benefit of and be enforceable by the Association
or any Member, their respective legal representatives, heirs, successors and assigns, for a term of
60 years from the date this Declaration is recorded, after which time said covenants, conditions
and restrictions shall be automatically extended for successive periods of 10 years each, unless
an instrument, signed by at least 67% of the then Members has been recorded, at least 1 year
prior to the end of any such period in the manner required for a conveyance of real property, in
which it is agreed that this Declaration shall terminate at the end of the then applicable term.
15.2 Enforcement and Nonwaiver.
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15.2.1 Rights of Enforcement of Governing Documents. The Association
or any Owner shall have a right of action against any Owner, and any Owner shall have a right of
action against the Association, to enforce by proceedings at law or in equity, all covenants,
conditions, and restrictions, now or hereafter imposed by the provisions of the Governing
Documents or any amendment thereto, including the right to prevent the violation of such
covenants, conditions and restrictions and the right to recover damages or other dues for such
violation except that Owners shall not have any right of enforcement concerning Assessment
Liens. The Association shall have the exclusive right to the enforcement of provisions relating to
architectural control and the Rules and Regulations, if any, unless the Association refuses or is
unable to effectuate such enforcement, in which case any Owner who otherwise has standing
shall have the right to undertake such enforcement. Failure of the Association, Declarant or any
Owner to enforce any covenants or restrictions herein contained shall in no event be deemed a
waiver of the right to do so thereafter.
15.2.2 Procedure for Enforcement. Notwithstanding anything to the
contrary set forth in Section 15.2.1, in enforcing any action under the Governing Documents for
monetary damages, the parties shall comply with the notice and delivery requirements and other
provisions of California Civil Code Section 1350 et seq. relating to such enforcement action.
15.3 Notice and Opportunity to Repair. If an Owner discovers an unsatisfactory
condition related to the original construction of Owner's Unit or if the Association discovers an
unsatisfactory condition related to the original construction of the Common Area or Association
Property, ("Condition"), then prior to commencing any claim or action against a person or entity
it may seek to hold liable for such Condition (a "Repairing Party"), the Owner or the
Association, as applicable, must notify such Repairing Party in writing of such Condition. Such
notice shall include: (a) a description of the Condition, (b) the date upon which the Condition
was discovered, and (c) dates and times during ordinary business hours when service calls or
inspections by the Repairing Party can be scheduled. The Repairing Party shall, in its sole
discretion, be entitled to inspect the Property regarding the reported Condition and within its sole
discretion, be entitled to cure such Condition. Nothing set forth herein shall obligate the
Repairing Party to perform any inspection or repair nor shall this Section be deemed create or
increase the Repairing Party's legal obligations (if any) to an Owner or to the Association.
Neither the Owner nor the Association shall pursue any other remedies available under this
Declaration, or at law or otherwise, including without limitation the filing of any lawsuit or
action, until the Repairing Party has had the reasonable opportunity to inspect and cure the
alleged Condition. If any statute(s) of limitations applicable to such actions would expire within
90 days after the date such notice is delivered by the Owner or the Association, then during the
period of such inspection and cure (but not to exceed the earlier to occur of (i) 90 days from the
date of the Repairing Party's receipt of Owner's or the Association's notice described above, or
(ii) 20 days from the Repairing Party's delivery of written notice to Owner or the Association of
the Repairing Party's determination not to proceed with such cure), such applicable statute(s) of
limitation shall be tolled. The Repairing Party shall not be liable for any general, special or
consequential damage, cost, diminution in value or other loss which Owner or the Association
may suffer as a result of any Condition in the Property, which reasonably might have been
avoided had the Owner or the Association given to the Repairing Party the notice and
opportunity to cure described above. The provisions of this Section 15.3 do not establish any
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legal or contractual duty or obligation on the part of the Repairing Party to repair, replace or cure
any Condition in the Property.
15.4 Alternative Dispute Resolution. Subject to the Owner's and the Association's
obligations under Section 15.3, the purpose of this Section 15.4 is to provide an expedited means
of resolving any claims, disputes and disagreements which may arise between an Owner and/or
the Association on the one hand and, Declarant and/or any third party involved with the
planning, construction, sales or marketing of the Project on the other hand (each a "Disputing
Party") after the close of escrow or other conveyance of any portion of the Property by
Declarant concerning the construction, sale or marketing of the Project (individually referenced
to herein as "Dispute" and collectively as "Disputes"). If there is a Dispute, any Repairing Party
may attempt to resolve such Dispute pursuant to Section 15.3 above. If there is a Dispute which
cannot be resolved between the parties as specified in Section 15.3 or if there is any other
Dispute, it will be decided through the mediation and arbitration procedure as set forth below.
THIS PROCESS INVOLVES WAIVER OF THE RIGHT TO A JURY TRIAL. BY
EXECUTING THIS DECLARATION AND BY ACCEPTING A DEED TO ANY
PORTION OF THE PROPERTY, RESPECTIVELY, DECLARANT, EACH OWNER
AND THE ASSOCIATION, AGREE TO BE BOUND BY THE PROVISIONS SET
FORTH IN THIS SECTION 15.4.
15.4.1 Mediation. Subject to the provisions of Section 15.4.2 (h) below,
Owner, Association and Declarant agree to submit any and all disputes to non-binding mediation
before commencing arbitration. The cost of mediation shall be split by the Disputing Parties, as
applicable. Each party to the mediation shall bear its own attorneys' fees and costs in connection
with such mediation.
15.4.2 Arbitration.
(a) Agreement to Arbitrate. The Association, each Owner and
Declarant shall resolve any Dispute not resolved as provided above exclusively through binding
arbitration in the County in which the Property is located. This arbitration provision shall apply
to Disputes of any kind or nature regardless of when the Dispute first arose or the nature of the
relief sought.
(b) Waiver of Trial by Judge or Jury. By agreeing to resolve all
Disputes through binding arbitration, the Association, each Owner and Declarant each give up
the right to have their respective Claims and defenses decided by a judge or a jury. All Claims
and Disputes shall instead be decided by the arbitrator.
(c) Rules Applicable to All Cases. The arbitration will be conducted
by Judicial Arbitration and Mediation Services ("JAMS") in accordance with the JAMS
Comprehensive Arbitration Rules and Procedures in effect as of the initiation of the arbitration
("JAMS Rules"), as supplemented by the provisions set forth in this Article 15. If JAMS is no
longer in existence at the time of such Dispute, the arbitration shall be conducted by any other
entity offering arbitration services that is mutually acceptable to the parties. The following
supplemental rules shall apply to all arbitration proceedings and shall govern in the event of a
conflict between the rules set forth below and the JAMS Rules.
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(d) Qualifications of Arbitrators. The arbitrator shall be neutral and
impartial and either a retired judge or a member or former member of the California State Bar
with at least 15 years experience as a practicing lawyer.
(e) Appointment of Arbitrator. The arbitrator to preside over the
Dispute shall be selected in accordance with the JAMS Rules, but no later than 60 days after a
notice of Claim is filed.
(f) Expenses. All fees charged by JAMS and the arbitrator-shall be
advanced by Declarant. If Declarant is the prevailing party in the arbitration, the arbitrator may,
in its discretion and only to the extent permitted by law and the JAMS Minimum Standards of
Procedural Fairness, direct the Owner or Association to reimburse Declarant for Owner's or the
Association's, as applicable, pro rata share of the JAMS fee and arbitrator's fee advanced by
Declarant. Each party shall bear its own attorneys' fees and costs. Notwithstanding the
foregoing, if the Declarant is not party to a Dispute, all fees charged by JAMS and the arbitrator
shall be shared equally by the parties to the Dispute.
(g) Venue. The venue of the arbitration shall be in the County where
the Project is located unless the parties agree in writing to another location.
(h) Preliminary Procedures. If State or Federal law requires the
Association or an Owner or Declarant to take steps or procedures before commencing an action
in court, then the Owner or Declarant must take such steps or follow such procedures, as the case
may be, .before commencing the arbitration. Nothing contained herein shall be deemed a;waiver
or limitation of the provisions of California Civil Code Sections 1368.4, 1375, 1375.05 or
1375=1.
(i) Participation by Other Parties. The Association, an Owner and
Declarant, to the extent any such party is defending a Claim in the arbitration, may request to
have all necessary and appropriate parties included as parties to the arbitration, but failure to
participate shall not invalidate the arbitration procedure.
(j) Rules of Law. The arbitrator must follow California substantive
law (including statutes of limitations) but strict conformity with the rules of evidence is not
required, except that the arbitrator shall apply Applicable Law relating to privilege and work
product. The arbitrator shall be authorized to provide all recognized remedies available at law or
equity for any cause of action.
(k) Attorneys' Fees and Costs. Each party shall bear its own
attorneys fees and costs (including expert witness costs) in the arbitration.
15.4.3 Additional Rules Applicable To Certain Cases. In any arbitration in
which a claim of a Disputing Party exceeds $250,000 in value, the following additional rules will
supplement the JAMS Rules and govern in the event of a conflict between the following rules
and the rules set forth above, the JAMS Rules, or both.
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(a) Qualifications of Arbitrator. In addition to the requirements of
Section 15.4.2(d) above, the arbitrator shall be a retired judge of the California Superior Court, a
California Court of Appeal, or the California Supreme Court,
(b) Rules of Law. The California Evidence Code shall apply.
(c) Written Decision. Within 30 days after the hearing is closed, the
arbitrator must issue a written decision. If either Owner or Declarant requests it, the arbitrator
must issue a reasoned award.
(d) Additional Discovery Rights: In addition to the discovery rights
provided for in the JAMS Rules, the parties will have the following discovery rights:
(i) Inspection, Examination and/or Test. The right to a
reasonable inspection, examination and/or test of any site, defect, personal injury or property
damage relevant to any Claim;
(ii) Deposition of Opposing Party. The right to take one
deposition of each opposing party for up to four hours. The deposition of a person designated by
an entity or organization as most knowledgeable, or an individual officer or employee of an
entity or organization, shall count as the deposition of a party which is not a natural person.
(iii) Deposition of Expert Witnesses. The right to take the
deposition of each expert witness designated by an opposing party for up to four (4) hours.
(iv) Additional Depositions. The arbitrator shall have
discretion to allow additional depositions and longer depositions upon a showing of good cause.
15.4.4 Procedure for Appeal of Certain Cases. In any arbitration in which
a Claim or arbitration award of a Disputing Party exceeds $500,000 in value, Owner and
Declarant hereby adopt and agree to the JAMS Optional Appeal Procedure. The following
additional rules will supplement the JAMS Optional Appeal Procedure and govern in the event
of a conflict between the following rules and the JAMS Optional Appeal Procedure.
(a) Right of Appeal. There shall be no right to appeal unless the oral
evidence received by the arbitrator was preserved in a manner such that it can be converted to an
accurate and reliable written transcript.
(b) Appellate Panel. An appeal shall be decided by one neutral
appeal arbitrator unless either party, within the time permitted for the appointment of the appeal
arbitrator, elects to have the appeal decided by a panel of three (3) appeal arbitrators. Any party
who elects to have an appeal decided by a panel of three (3) appeal arbitrators agrees to be solely
responsible for the cost of having two (2) additional appeal arbitrators. The sole appeal
arbitrator, or at least one member of any panel of three (3) arbitrators, shall have prior experience
as a member of an appellate panel of the California Court of Appeal.
(c) Issues on Appeal. The only issues that may be considered on
appeal are: (i) the award of money was excessive; (ii) the award of money was insufficient;
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(iii) the arbitrator awarded non-monetary relief that was inappropriate; (iv) a party who received
non-monetary relief should have received other or additional relief. A majority of the appeal
arbitrators may affirm the arbitration award or make any alternative award they find to be just,
but they must not reject the arbitrator's decisions (a) that a particular party is entitled to relief of
some nature or amount or (b) that a particular party is responsible to provide relief of some
nature or amount.
(d) Expenses and Costs on Appeal. The fees charged by JAMS and
the appeal arbitrator(s) shall be advanced by the Declarant, except as provided in
Section 15.4.4(b) above. The party who files the appeal must, at its sole expense, provide JAMS
and all non-appealing parties with a certified copy of the hearing transcript, and must provide
JAMS with copies of all documentary evidence and all other tangible evidence received by the
arbitrator, if more than one party appeals, the appealing parties must share equally the cost of
the transcript and copies of all other documentary and tangible evidence received by the
arbitrator. The appeal arbitrators may, within 30 days of their determination, award costs of the
nature provided in the Federal Rules of Appellate Procedure. If the Declarant is the prevailing
party on appeal, the appeal arbitrator(s) may, in his, her or their discretion and only to the extent
permitted by law and JAMS Minimum Standards Of Procedural Fairness, include the non-
prevailing party(ies) pro rata share of the JAMS fee and arbitrator's fee advanced by the
Declarant in the award of costs on appeal. Notwithstanding the foregoing, if the Declarant is not
party to a Dispute, all fees charged by JAMS and the arbitrator shall be shared equally by the
parties to the Dispute.
(e) New Evidence. The appeal arbitrators must not receive new
evidence. The appeal arbitrators must make their decision based only on the evidence that was
presented to the arbitrator, except that the appeal arbitrators may visit any site involved in the
Dispute.
15.4.5 Federal Arbitration Act. Because many of the materials and
products incorporated into the Project are manufactured in other stales, the development and
conveyance of the Property evidences a transaction involving interstate commerce and the
Federal Arbitration Act (9 U.S.C. §1, et seq.) now in effect and as it may be hereafter amended
will govern the interpretation and enforcement of the arbitration provisions of this Declaration.
15.4.6 ARBITRATION OF DISPUTES. BY EXECUTING THIS
DECLARATION, DECLARANT AND BY ACCEPTING A DEED TO ANY PORTION
OF THE PROPERTY, EACH OWNER AND THE ASSOCIATION AGREE TO HAVE
ANY DISPUTE DECIDED BY NEUTRAL ARBITRATION IN ACCORDANCE WITH
THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT,
TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH
THE FEDERAL ARBITRATION ACT, AND OWNER AND DECLARANT ARE
GIVING UP ANY RIGHTS DECLARANT, OWNER AND THE ASSOCIATION MIGHT
POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.
DECLARANT, OWNER AND ASSOCIATION ARE GIVING UP THEIR RESPECTIVE
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THIS SECTION 15.4. IF DECLARANT, ANY OWNER
OR THE ASSOCIATION REFUSED TO SUBMIT TO ARBITRATION AFTER
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AGREEING TO THIS PROVISION, SUCH PARTY MAY BE COMPELLED TO
ARBITRATE UNDER THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA
ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS
CONSISTENT WITH THE FEDERAL ARBITRATION ACT.
15.4.7 Final and Binding Award The decision of the arbitrator or, if an
appeal is heard, the decision of the appeal arbitrators, shall be final and binding. A petition to
confirm, vacate, modify or correct an award may be filed in any court of competent jurisdiction
in the County in which the Property is located, but the award may be vacated, modified or
corrected only as permitted by the Federal Arbitration Act.
15.4.8 Severabiiity. In addition to and without limiting the effect of any
general severability provisions of this Declaration, if the arbitrator or any court determines that
any provision set forth in this Section 15.4 is unenforceable for any reason, that provision shall
be severed, and proceedings agreed to in this Section 15.4 shall be conducted under the
remaining enforceable terms of this Section 15.4.
15.4.9 Application of Award. Any proceeds awarded to the Association
arising from any Dispute by settlement, award or otherwise shall be applied in accordance with
the provisions of Section 3,5.11 of this Declaration.
15.5 City's Right to Enforce. The City shall have the right, but not the obligation, to
enforce the protective covenants, conditions and restrictions set forth in this Declaration in favor
of, or in which the City has an interest.
ARTICLE 16
GENERAL PROVISIONS
16.1 Headings. The headings used in this Declaration are for convenience only and
are not to be used to interpret the meaning of any of the provisions of this Declaration.
16.2 Severabilitv. The provisions of this Declaration shall be deemed independent
and severable, and the invalidity or partial invalidity or unenforceability of any provision or
provisions of it shall not invalidate any other provisions.
16.3 Excuse for Non-Performance. Each Owner and the Association shall be
excused from performing any obligation or undertaking provided in this Declaration, except any
obligation to pay any sums of money under the applicable provisions hereof (unless such
payment is conditioned upon performance of any obligation or undertaking excused by this
Section), in the event and so long as the performance of any such obligation is prevented or
delayed, retarded or hindered by act of God, fire, earthquake, floods, explosion, actions of the
elements, war, invasion, insurrection, riot, mob violence, sabotage; inability to procure or general
shortage of tabor, equipment, facilities, materials or supplied in the ordinary course on the open
market; failure of normal transportation; strikes, lockouts, action of labor unions; condemnation,
requisition; laws or orders of governmental or civil or military authorities; breach or default of
the other Owners or the Association of any of its obligations hereunder; failure to obtain
necessary governmental approvals or permits despite the exercise of due diligence and good faith
efforts by a Owner or the Association, or any other cause, whether similar or dissimilar to the
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37513-02452/2122818.17
foregoing, not within the reasonable control of such Owner or the Association, other than the
lack of or inability to obtain funds or causes which were reasonably foreseeable.
16.4 Cumulative Remedies. Each remedy provided for in this Declaration shall be
cumulative and not exclusive. Failure to exercise any remedy provided for in this Declaration
shall not, under any circumstances, be construed as a waiver.
16.5 Violations as Nuisance. Every act or omission in violation of the provisions of
this Declaration shall constitute a nuisance and, in addition to all other remedies herein set forth,
may be abated or enjoined by any Owner, any member of the Board, the manager, or the
Association.
16.6 No Racial Restriction. No Owner shall execute or cause to be recorded any
instrument which imposes a restriction upon the sale, leasing or occupancy of its Unit on the
basis of race, sex, color or creed.
16.7 Access to Books. Declarant may, at any reasonable time and upon reasonable
notice to the Board or manager at its own expense, cause an audit or inspection to be made of the
books and financial records of the Association.
16.8 Liberal Construction. The provisions of this Declaration shall be liberally
construed to effectuate its purpose. Failure to;enforce any provision hereof shall not constitute a
waiver of the right to enforce said provision thereafter.
16.9 Estoppel Certificate. Each Owner and the Association hereby covenant that,
within 30 days of any written request of any other Owner and upon payment of a reasonable fee
(as fixed from time to time by the Association), it will issue to such requesting Owner, or to any
Mortgagee or to a bona fide purchaser under an agreement of sale or similar document, an
estoppel certificate stating as of the date of such certificate whether the Owner or the Association
to whom the request has been directed knows: (a) of any default under the Declaration or any
separate agreement thereto (that affects such Owner's obligations set forth in the Declaration)
and if there are known defaults, specifying the nature thereof; (b) whether, to its knowledge, the
Declaration has been assigned, modified or amended in any way (and if it has, then stating the
nature thereof); and (c) that, to its knowledge, the Declaration is in full force and effect. Such
statements shall act as a waiver of any Claim by an Owner (but not by its Mortgagee) furnishing
it to the extent such Claim is based upon facts contrary to those asserted in the statement and to
the extent that the Claim is asserted against a bona fide purchaser under an agreement of sale or
similar document or against any Mortgagee for value, without knowledge of facts contrary to
those contained in the statement and who has acted in reasonable reliance upon the statement.
However, such statement shall in no event subject the Owner furnishing it to any liability
whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such Owner to
disclose correct or relevant information.
16.10 [Notification of Sale of Condominium. Concurrently with the consummation of
the sale of any Condominium under circumstances whereby the transferee becomes an Owner
thereof, or within five (5) business days thereafter, the transferee shall notify the Board in
writing of such sale. Such notification shall set forth the name of the transferee and its
Mortgagee and transferor, the common address of the Condominium purchased by the transferee,
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37513-02452 / 2122818.17
the transferee's and the Mortgagee's mailing address, and the date of sale. Prior to the receipt of
such notification, any and all communications required or permitted to be given by the
Association, the Board or the manager shall be deemed to be duly made and given to the
transferee if duly and timely made and given to said transferee's transferor. Mailing addresses
may be changed at any time upon written notification to the Board. Notices shall be deemed
received 48 hours after mailing if mailed to the transferee, or to its transferor if the Board has
received no notice of transfer as above provided, by certified mail return receipt requested, at the
mailing address above specified.
16.11 Number, Gender. The singular shall include the plural and the plural the
singular unless the context requires the contrary, and the masculine, feminine and neuter shall
each include the masculine, feminine or neuter, as the context requires.
16.12 Exhibits. All exhibits referred to in this Declaration are attached to this
Declaration and incorporated by reference.
16.13 Binding Effect. This Declaration shall inure to the benefit of and be binding on
the successors and assigns of the Declarant, and the heirs, personal representatives, grantees,
tenants, successors and assigns of the Owners.
16.14 Easements Reserved and Granted. Any easements referred to'in this
Declaration shall be deemed reserved or granted, or both reserved and granted, by reference to
this Declaration in the first deed by Declarant to any Condominium.
16.15 Statutory References. All references in this Declaration to various statutes,
codes, regulations, ordinances and other laws shall be deemed to include those loans in effect as
of the date of this Declaration and any successor laws as may be amended from time to time.
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37513-02452/2122818.17
IN WITNESS WHEREOF, Declarant has executed this instrument as of the date set forth
on the first page hereof.
DECLARANT:
O.W. COMMERCIAL. INC,,
i a Delaware'
By:.
Title:Thomas W.Roberts
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375I3-02-452/21228IX.I7
66
STATE OF CALIFORNIA )
)
COUNTY OF\VV\rlCj^yX )
me. TVinruXflX U)\UU?lAX3 .Notary Public.
personally appeared ^CV\n\Wx£<
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) 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. »__-
-*—- Noaypu*. Arizona
Martnp* Gouty
60m 0001/10
(Seal)
STATE OF CALIFORNIA
COUNTY OF
On . before me, , Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) 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)
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13770
SUBORDINATION AGREEMENT
The undersigned, as holder of the beneficial interest in that certain Deed of Trust dated
April 27, 2006 and recorded in the Office of the County Recorder of San Diego County on April
27, 2006 as File No. 2006-0296928 as modified by that certain Modification Agreement and
Assumption Agreement recorded in the Office of the County Recorder of San Diego County on
, as File No. , which Deed of Trust encumbers all or a portion of the real
property covered by the Declaration of Covenants, Conditions and Restrictions for Lionshead
Point ("Declaration"), does hereby intentionally and unconditionally subordinate the lien of said
Deed of Trust to (a) the foregoing Declaration, (b) any Supplementary Declaration which is
recorded pursuant to the Declaration, and (c) any amendment or restatement of the Declaration
or any Supplementary Declaration.
Dalcd: "7/30/07
\*VSEAL/
WACHOVIA BANK, NA, individually, as a
Lender, and as Administrative Agent for itself
and the Lenders
By:_
Name:
Title:S. Todd Jarman
Senior Vice tresidenF
STATE OF
COUNTY OF
3s f Z^O-? , before me. K\\[SSQ . Notary Public.
personally appeared ]S
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) 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.OFFICIAL SEAL
ALYSSA SHANK
'NOTARY PUBLIC-State ol Arizona
MARICOPA COUNTY
My Comm. Expires April 19, 2010
Signuture (Seal)
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3751.<-02452/ 2122818.17
13771EXHIBIT "A" -*•
Legal Description of the Property
LOT 23 AND LOT 24 OF MAP 15013 RECORDED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON MAY 3, 2005 AS INSTRUMENT NUMBER
2005-0371022 AND THAT CERTIFICATE OF COMPLIANCE RECORDED ON AUGUST 8,
2006 AS FILE NUMBER 2006-0560674, AND THAT CERTAIN CERTIFICATE OF
COMPLIANCE RECORDED ON JULY 31, 2007 AS INSTRUMENT NUMBER 2007-
0510380.
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