HomeMy WebLinkAboutCT 83-04; Windsong Shores; Tentative Map (CT) (6)DRAFT
Recording requested by and
when recorded return to:
HOLZWARTH, POWELL, STEIN & PARILLA
18400 Von Karman Avenue
Suite 600
Irvine, California 92715
Attn: Thomas S. Tengan, Esq.
*
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
4200 HARBOR DRIVE
(A Multi-Phase Condominium Project)
, TABLE OF CONTENTS
ARTICLE I DEFINITIONS 2
1. Access Easements 2
2. Annexation Property 2
3. Articles 2
4 . Assessments 3
5. Association 3
6. Association Property 3
7 . Board 4
8. By-Laws 4
9. City 4
10. Common Ar ea 4
11. Common Expenses 4
12. Common Property 4
13. Condominium 5
14. Condominium Building 5
15. Condominium Plan 5
16. Condominium Unit 5
17. County 5
18. Declarant 5
19. Declaration 6
20. Declaration of Annexation 6
21. ORE 6
22. Improvements 6
23. Lot 6
24. Member 6
25. Mortgage 7
26. Mortgagee 7
27. Mortgagor 7
28. Notice and Hearing ...7
29. Owner 7
30. Phase 7
31. Project 7
32. Property 8
33. Application of Definitions 8
34. Rules and Regulations 8
ARTICLE II INTRODUCTION TO 4200 HARBOR DRIVE 9
1. General Plan of Development 9
2. Membership in Association 9
3. Annexation of Subsequent Phases Into the
Association 10
4. Development Control 10
5. Non-Liability of Declarant 10
ARTICLE III DESCRIPTION OF THE CONDOMINIUMS 11
1. "Stacked" Condominium Unit 11
2. Presumption of Boundaries of
Condominium Units 12
3. Common Area 12
4. Exclusive Use Common Area 12
5. Undivided Fractional Fee Interest in
Common Area 13
6. Easements Over Common Property 14
7. Components of Condominium Ownership 14
8. Condominium Numbering 14
9 . Guest Parking Areas 14
10. Reservation of Easements Over Common
Area in Subsequent Phases 14
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ARTICLE IV RESERVATION OF EASEMENTS AND OTHER PROPERTY
RIGHTS IN THE COMMON PROPERTY 15
1. Owners ' Easements 15
2. Limitations on Owners' Easement Rights 15
3. Delegation of Common Property Use Rights...16
4. Easements for Vehicular Traffic 17
5. Easements for Utilities 17
6. Easements for Maintenance of the
Common Property 18
7. Easements for Drainage 18
8. Easements for Construction and Sales 19
9. Easements for Air Conditioners/Forced
Air Heating Units 19
10. Reservation of Construction Rights by
Declarant 19
11. Easement for Public Service Uses 19
12. Owner Cooperation for Fumigation 20
13. Control and/or Transfer of Title of
Common Property 20
ARTICLE V THE ASSOCIATION 22
1. Membership 22
2. Voting Rights 22
3. Adjustment of Voting Rights 23
4. Vesting of Voting Rights 23
5. Suspension of Voting Rights 23
6. Transfer 23
7. Proxies 23
ARTICLE VI POWERS AND DUTIES OF THE ASSOCIATION 24
1. Management Body 24
2. Powers .....1.24
3. Duties 25
4. Discretionary Powers 29
5. Notification by Association of Defects 30
6. Limitations on Contracts 31
7. Delegations of Duties 31
8. Right of Entry for Emergency 31
9. Right of Entry for Repairs 31
10. Limitations on Board Action 31
11. Licenses, Easements and Rights of Way 32
12. New Improvements 33
13. Association Rules and Regulations 33
ARTICLE VII ASSESSMENTS 34
1. Creation of the Lien and Personal
Obligation of Assessment 34
2. Purpose of Regular Assessments: Levy
and Collection 34
3. Regular Assessments - Basis 34
4. Special Assessments 36
5. Compliance Assessments 37
6. Date of Commencement of Regular
Assessments: Due Dates 37
7. Collection of Assessments 37
8. Certification of Payment 37
9. Delivery by Owner 38
10. Delivery of Statement 38
11. Reserves 38
12. Offsets and Waiver Prohibited 38
13. Exempt Property 38
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ARTICLE VIII EFFECT OF NON-PAYMENT OF ASSESSMENTS: REMEDIES
OF THE ASSOCIATION 40
1. Effect of Non-Payment of Assessments:
Remedies of the Association 40
2. Notice of Delinquent Assessments 40
3. Foreclosure Sale 40
4. Curing of Default 41
5. Cumulative Remedies 41
6. Mortgagee Protection 41
ARTICLE IX USE RESTRICTIONS 42
1. Private Dwelling 42
2. Common Property Use 42
3. Conduct Affecting Insurance 42
4. Liability for Damage to the Common
Property 42
5. Signs 42
6. Maintenance of Animals 43
7. Quiet Enjoyment 43
8. Structural Changes 43
9. Improvements 44
10. Windows 44
11. Commercial Activity 44
12. Parking 44
13. Regulation of Parking 45
14. Vehicle Usage in Association Property 46
15. Compliance With Management Documents 46
16. Solar Heating 46
17. Antennas 46
18. Water Softeners 46
19. Leasing 46
20. Drilling 47
21. Trash 47
22. Special Restrictions Regarding Exclusive
Use Areas 47
23. Declarant's Exemption From Use
Restrictions 47
ARTICLE X REPAIR AND MAINTENANCE 48
1. Repair and Maintenance by Association 48
2. Repair and Maintenance by Owner 48
3. Maintenance of Public Utilities 49
ARTICLE XI ARCHITECTURAL CONTROL - APPROVAL 50
1. Exemptions From Architectural Control 50
2. Architectural Control 50
3. Architectural Control Committee 50
4. Meetings of the Architectural Control
Committee 51
5. Architectural Approval - Review of Plans
and Specifications 51
6. Decisions of the Architectural Control
Committee 52
7. No Waiver of Future Approvals 53
8. Compensation of Members 53
9. Variances 53
10. Inspection of Work 53
11. Non-Liability of Architectural Control
Committee Members 54
12. Appeal 54
ARTICLE XII DAMAGE OR DESTRUCTION TO THE COMMON AREA 55
1. Restoration of Damaged Common Area 55
2. Election by Owners Not to Restore
Damaged Common Area 55
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3. Restoration of Damaged Condominium Units...56
4. Architectural Approval of Restoration
Plans; Design and Variance 56
5. Distribution of Excess Insurance Proceeds..57
6. Special Assessments for Restoration
Purposes 57
ARTICLE XIII DAMAGE OR DESTRUCTION TO THE ASSOCIATION
PROPERTY 58
1. Election to Restore Association Property...58
2. Election Not to Restore Association
Property 58
3. Excess Insurance Proceeds 59
ARTICLE XIV CONDEMNATION 59
1. Distribution of Awards 59
2. Distribution of Awards - Association
Property 59
3. Board of Directors as Attorney-in-Fact 59
ARTICLE XV COVENANT AGAINST PARTITION 60
1. General Covenant Against Partition 60
2. Judicial Partition of the Project 60
3. Board of Directors' Power of Sale in
Event of Judicial Partition 60
ARTICLE XVI INSURANCE 61
1. Required Insurance Coverage 61
2. Optional Insurance Coverage 62
3. Notice of Cancellation of Insurance 62
4. Review of Coverage ..63
5. Waiver by Owners 63
6. Premiums, Proceeds and Settlement 63
7. Rights and Duties of Owners to Insure 63
8. Trustee for Policies 64
9. Mortgage Clause 64
10. Compliance With Requirements of FHLMC,
FNMA and VA/FHA 64
ARTICLE XVII MORTGAGEE PROTECTION 65
1. Mortgagee Protection Provisions 65
2. Violation of Mortgagee Protection
Provisions .68
3. Effect of Amendments 69
4. Amendments to Conform With Mortgagee
Requirements 69
ARTICLE XVIII ENFORCEMENT OF BONDED OBLIGATIONS 70
1. Enforcement of Bonded Obligations 70
ARTICLE XIX ANNEXATION OF ADDITIONAL PROPERTY 71
1. Phased Development of the Project 71
2. Annexation Pursuant to General Plan 71
3. Annexation Pursuant to Approval 71
4. Declaration of Annexation 71
5. Effective Date of Annexation 72
6. Right of De-Annexation 72
7. Amendments to Declarations of Annexation...72
ARTICLE XX RIGHT OF CITY TO COMPEL PERFORMANCE 73
1. Rights of City 73
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ARTICLE XXI GENERAL PROVISIONS 74
1. Enforcement 74
2. Severability 75
3. Term 75
4. Construction 75
5. Singular Includes Plural 75
6. Amendments 76
7. Encroachments 77
8. Notices 78
9. Attorneys ' Fees 78
EXHIBITS
EXHIBIT "A" Access Easements
EXHIBIT "B" Annexation Property
-v-
CCR897 0725.004 080189
DRAFT
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
4200 HARBOR DRIVE
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRIC-
TIONS, AND RESERVATION OF EASEMENTS is made this day of
, 1989, by MARLBOROUGH DEVELOPMENT CORPORATION, a
California corporation (hereinafter referred to as the
"Declarant").
W^TNESSETH:
A. Declarant owns that certain real property located
in the City of Carlsbad, County of San Diego, State of
California, more particularly described as:
Lot 2 of Carlsbad Tract No. 83-4, as shown on
Map No. 11484 recorded on April 10, 1986, as
File No. 86-138666, in the Office of the County
Recorder of San Diego County, California
(hereinafter referred to as the "Property").
B. Declarant desires to develop the Property and any
of the "Annexation Property," as hereinafter defined, which is
subsequently annexed to the Property pursuant to the Article
herein entitled "Annexation of Additional Property" as a common
interest development, more particularly described in Section
1351(f) of the California Civil Code as a "condominium project"
(hereinafter referred to as the "Project"), as more particularly
described below.
C. Declarant deems it desirable to impose a general
plan for the development, maintenance, improvement, protection,
use, occupancy and enjoyment of the Project, and to establish,
adopt and impose covenants, conditions, restrictions, easements,
equitable servitudes, liens and charges (hereinafter referred to
as the "Protective Covenants") upon the Project for the purpose
of enforcing, protecting and preserving the value, desirability
and attractiveness of the Project.
D. Declarant deems it desirable for the efficient
enforcement, protection and preservation of the value, desira-
bility and attractiveness of the Project to create a corporation
which shall be delegated and assigned the powers of administering
and enforcing the Protective Covenants.
E. 420O HARBOR DRIVE HOMEOWNERS ASSOCIATION, a Cali-
fornia nonprofit, mutual benefit corporation, has been or will be
incorporated under the laws of the State of California for the
purpose of exercising the aforesaid powers.
F. Declarant intends to convey the Property, and any
and all real property annexed thereto, subject to the Protective
Covenants set forth hereinbelow.
NOW, THEREFORE, pursuant to Sections 1350, et seq., of
the California Civil Code, Declarant declares that it does hereby
establish a general plan for the development, maintenance, care,
improvement, protection, use, occupancy, management and enjoyment
of the Project, and that all or any portion of the Project shall
be held, sold, conveyed, encumbered, hypothecated, leased, used,
occupied and improved, subject to the Protective Covenants set
forth herein, all of which are for the purpose of uniformly en-
hancing and protecting the value, attractiveness and desirability
of the Project, in furtherance of said general plan for the Pro-
ject. Each and all of the Protective Covenants shall run with the
Project, and shall be binding upon all persons having any right,
title or interest in the Project, or any portion thereof, their
heirs, successors and assigns, and shall inure to the benefit of
and be binding upon Declarant, its successors and assigns, all
subsequent owners of all or any portion of the Project, together
with their grantees, heirs, executors, administrators, devisees,
successors and assigns.
ARTICLE I
DEFINITIONS
Section 1. "Access Easements" shall mean and refer to
those public recreational and public access facilities over which
the Association has a non-exclusive easement for ingress, egress
and access as described and depicted in Exhibit "A" and defined
more specifically in the Staff Recommendation and Findings of
Application No. 6-83-613, approved by the California Coastal
Commission and recorded , 19 .
Section 2. "Annexation Property" shall mean and refer
to that certain real property described in Exhibit "B" attached
hereto, including all Improvements (as defined below) constructed
thereon, all or any portion of which may be annexed to the Prop-
erty as set forth in the Article herein entitled "Annexation of
Additional Property."
Section 3. "Articles" shall mean and refer to the Ar-
ticles of Incorporation of 4200 Harbor Drive Homeowners
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Association, as filed in the Office of the Secretary of State of
the State of California, as such Articles may be amended, from
time to time.
Section 4. "Assessments" shall be used as a generic
term which shall mean and refer to the following:
(a) "Regular Assessment" shall mean and refer to
the annual charge against each Owner and his respective
Condominium representing a portion of the Common Expenses of
the Association;
(b) "Compliance Assessment" shall mean and refer
to the personal charge against an Owner representing the
costs incurred by the Association in the repair of any dam-
age to the Common Property for which such Owner was respon-
sible, the costs incurred by the Association in bringing
such Owner and his Condominium into compliance with this
Declaration, any amount due the Association based upon dis-
ciplinary proceedings against an Owner in accordance with
this Declaration, or any amount due the Association to reim-
burse the Association for administrative costs attributable
to an Owner as provided herein; and
(c) "Special Assessment" shall mean and refer to
the charge against an Owner and his respective Condominium
representing a portion of the cost of reconstructing any
damaged or destroyed portion or portions of the Common Prop-
erty, of constructing or installing any capital improvements
to the Common Property, or of taking any extraordinary ac-
tion for the benefit of the Common Property or the member-
ship of the Association, pursuant to the provisions of this
Declaration.
Section 5. "Association" shall mean and refer to 4200
Harbor Drive Homeowners Association, a California nonprofit, mu-
tual benefit corporation, in which all Owners shall have a mem-
bership interest as more particularly described hereinbelow, pro-
vided that membership shall be limited to Owners.
Section 6. "Association Property" shall mean and
refer to all personal property now or hereafter owned by the
Association, and all that certain real property (and to all
Improvements constructed thereon) owned in fee by the Association
(including, but not limited to, those Access Easements over which
the Association has a non-exclusive easement for ingress, egress
and access) for the benefit, common use and enjoyment of all
Members, but excepting therefrom the Common Area. Portions of the
Annexation Property may be annexed as additional Association
Property in any Declaration of Annexation recorded in the
Official Records of San Diego County, California, in accordance
with the provisions of the Article herein entitled "Annexation of
Additional Property."
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Section 7. "Board" shall mean and refer to the Board
of Directors of the Association, elected in accordance with the
By-Laws of the Association and this Declaration.
Section 8. "By-Laws" shall mean and refer to the By-
Laws of the Association which have been, or will be, adopted by
the Board, as such By-Laws may be amended, from time to time.
Section 9. "City" shall mean and refer to the City of
Carlsbad.
Section 10. "Common Area" shall mean and refer to all
of that certain real property described in paragraph A of the Re-
citals hereinabove, together with all Improvements constructed
thereon, but excepting therefrom all of the Condominium Units, as
defined in Section 1351(b) of the California Civil Code and as
more particularly described hereinbelow. Such real property is
the Common Area for this first Phase of the Project. Portions of
the Annexation Property may be designated as additional "Common
Area" for a subsequent Phase in any Declaration of Annexation
recorded in the Official Records of San Diego County, California,
in accordance with the Article herein entitled "Annexation of
Additional Property."
Section 11. "Common Expenses" shall mean and refer to
the actual and estimated costs to be paid by the Association for
the following: (a) owning, maintaining, managing, operating,
repairing and replacing the Common Property; (b) managing -and
administering the Association, including, but not limited to,
compensation paid by the Association to managers, accountants,
attorneys and any Association employees; (c) providing utilities
and other services to the Common Property, and, if not separately
metered, to the Condominium Units; (d) providing insurance as
provided for herein; (e) paying that portion of any Assessment
attributable to Common Expenses not paid by the Owner responsible
for payment; (f) paying taxes for the Association; and (g) paying
for all other goods and services designated by, or in accordance
with, other expenses incurred by the Association for the benefit
of all Owners. Additionally, the Common Expenses shall include
adequate reserves, as the Board shall determine to be appro-
priate, for the repair and replacement of those elements of the
Common Property which must be repaired or replaced on a periodic
basis, rather on a regular annual basis.
Section 12. "Common Property" as used herein shall
mean and refer collectively to all Common Area and to all Asso-
ciation Property in the Project and to any of the Association
Property and additional Common Area designated and described as
such in any Declaration of Annexation recorded in the Official
Records of San Diego County, California, in accordance with the
Article herein entitled "Annexation of Additional Property."
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Section 13. "Condominium" shall mean an estate in real
property, as defined in California Civil Code Section 1351(f),
consisting of a separate interest in a Condominium Unit, together
with an undivided fractional fee interest in the Common Area of
that Phase of the Project of which the Condominium is a part, as
more particularly shown and described in a Condominium Plan
affecting such Phase recorded in the Official Records of San
Diego County, California. Condominiums in this first Phase of the
Project are more particularly described in Article III of this
Declaration. Condominiums in any subsequent Phase may be des-
cribed in a Declaration of Annexation which is recorded that
affects such Phase.
Section 14. "Condominium Building" shall mean and re-
fer to a separate building containing one (1) or more Condominium
Units.
Section 15. "Condominium Plan" shall mean and refer to
each of those instruments entitled "Condominium Plan," prepared
in accordance with Section 1351(e) of the California Civil Code,
as the same may be amended, from time to time, and recorded in
the Official Records of San Diego, California, affecting one (1)
or more Phases of the Project. The Condominium Plan for this
first Phase of the Project shall be recorded prior to or concur-
rently with this Declaration, and the Condominium Plan for each
subsequent Phase shall be recorded prior to or concurrently with
the Declaration of Annexation for such Phase.
Section 16. "Condominium Unit" shall mean and refer to
the elements of a Condominium which are not owned in common with
the Owners of other Condominiums in the particular Phase in which
the Condominium is located. Condominium Units in the first Phase
of the Project are more particularly described in the Article
herein entitled "Description of the Condominiums" and in the
Condominium Plan. Condominium Units in subsequent Phases shall be
described in a Declaration of Annexation and in the Condominium
Plan for said Phase. For purposes of this Declaration, the term
"Condominium Unit" is deemed to be a "separate interest," as
defined in Section 1351{f) of the California Civil Code.
Section 17. "County" shall mean and refer to the
County of San Diego, California.
Section 18. "Declarant" shall mean and refer to
Marlborough Development Corporation, a California corporation,
and to any person or entity acquiring all of Declarant's interest
in the Project (including all of Declarant's rights and
obligations as created and established herein) pursuant to a
written assignment, deed or other instrument from Declarant which
is recorded in the Office of the County Recorder for San Diego
County. Any such instrument may include only certain specific
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rights and/or obligations of the Declarant and may be subject to
such conditions as Declarant may impose in its sole discretion.
Section 19. "Declaration" shall mean and refer to this
Declaration of Covenants, Conditions and Restrictions, and Reser-
vation of Easements, and to all amendments to this Declaration as
may be recorded, from time to time, in the Office of the County
Recorder for San Diego County, in accordance with Section 1351(h)
and Section 1353 of the California Civil Code.
Section 20. "Declaration of Annexation" shall mean and
refer to that certain instrument utilized to annex all or a por-
tion of the Annexation Property, in accordance with the provi-
sions of this Declaration, thereby subjecting said subsequent
Phase to the provisions of this Declaration and to the
jurisdiction of the Association.
Section 21. "DRE" shall mean and refer to the Depart-
ment of Real Estate of the State of California, which administers
the sale of subdivided lands pursuant to Sections 11000, et seq.,
of the California Business and Professions Code, or any similar
California statute hereinafter enacted.
Section 22. "Improvements" shall mean and refer to all
structures and appurtenances thereto of every kind, including,
but not limited to, Condominium Buildings, open parking areas,
swimming pools, spas, cabanas, private streets, if any, street
lights, entry gates, pavement, sidewalks, driveways, walls,
fences, decorative or informative signs, retaining walls, mail
kiosks, common trash receptacles, if any, screens, private
utility line connections, poles, signs all Common Area landscap-
ing and irrigation systems. Improvements shall also mean and
refer to all additions and/or modifications to the exterior of
any Condominium Unit, including, but not limited to, (a) painting
the exterior of any Condominium or other structure, (b) changing
the roofing material on any Condominium, and/or (c) building,
constructing, installing, altering or planting, as the case may
be, any spas, patio covers, balcony covers, decks, gazebos,
stairs, screening walls or fences, shades, awnings, screen doors,
exterior doors, skylights, solar heating panels, air conditioning
and/or water softening or refining fixtures or systems, and all
landscaping which left in its natural condition will grow to a
height in excess of ten feet (10').
Section 23. "Lot" shall mean and refer to a plot of
land which is separately described and numbered or lettered on a
recorded subdivision map.
Section 24. "Member" shall mean and refer to every
person or entity who holds membership in the Association, as more
particularly set forth in the Article herein entitled "The Asso-
ciation," and shall be synonymous with the term "Owner."
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Section 25. "Mortgage" shall mean and include any
mortgage or deed of trust, or other conveyance of a Condominium
(or other portion of the Project) to secure the performance of an
obligation, which conveyance will be reconveyed upon the comple-
tion of such performance, including an installment land sales
contract (as described in Sections 2985 through 2985.6 of the
California Civil Code, as same may be amended from time to time).
The term "Deed of Trust," when used herein, shall be synonymous
with the term "Mortgage."
Section 26. "Mortgagee" shall mean and refer to a per-
son or entity to whom a Mortgage is made, and shall include the
beneficiary of a Deed of Trust or the vendor under an installment
land sales contract, as the case may be, and the assignees of a
Mortgagee, beneficiary or vendor.
Section 27. "Mortgagor" shall mean and refer to a per-
son or entity who mortgages his or its Condominium to another,
i.e., the maker of a Mortgage, and shall include a trustor of a
Deed of Trust and the vendee under an installment land sales
contract.
Section 28. "Notice and Hearing" shall mean and refer
to written notice and the opportunity for a hearing before the
Board or the Architectural Control Committee of the Association,
as applicable, or other tribunal appointed by the Board in the
manner provided in the By-Laws, at which the affected Owner shall
have an opportunity to be heard in the manner provided herein and
in the By-Laws.
Section 29. "Owner" shall mean and refer to the record
Owner, or Owners if more than one (1), or the purchaser under an
installment land sales contract of fee title to, or an undivided
interest in, any Condominium in the Project. The term "Owner"
shall include Declarant, the vendee under an installment land
sales contract (as described in Sections 2985 through 2985.6 of
the California Civil Code, as same may be amended, from time to
time), and the holder of a leasehold estate having a term of ten
(10) or more years, including renewal periods. The foregoing does
not include persons or entities who hold an interest in a Condo-
minium merely as security for the performance of an obligation.
Section 30. "Phase" shall mean and refer to a Lot, or
a portion thereof, improved with Condominiums or other
Improvements which is annexed into the Project in accordance with
this Declaration, and which is subject to a separate Final
Subdivision Public Report issued by the DRE.
Section 31. "Project" shall mean and refer to the
Property (and to all Improvements, including the Condominium
Units, constructed thereon) together with all Association
Property and Annexation Property which is annexed to the Property
in accordance with the applicable provisions of this Declaration.
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Section 32. "Property" shall mean and refer to all of
that certain real property described in Paragraph A of the Reci-
tals hereinabove.
Section 33. "Rules and Regulations" shall mean and re-
fer to the Rules and Regulations adopted by the Board pursuant to
the By-Laws or this Declaration, as they may be amended, from
time to time.
Section 34. Application of Definitions. The aforesaid
definitions shall be applicable throughout this Declaration, and
to any supplements or amendments hereto filed or recorded pursu-
ant to the provisions of this Declaration, and to any Declaration
of Annexation for a subsequent Phase, unless otherwise indicated
or the context shall prohibit such application.
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ARTICLE II
INTRODUCTION TO 4200 HARBOR DRIVE
Section 1. General Plan of Development. 4200 Habor
Drive is presently planned as a multi-phase condominium project,
as defined in Section 1351(f) of the California Civil Code,
which, if completed as planned, will consist of approximately one
hundred thirty (130) Condominiums and various recreational ameni-
ties. Recreational amenities may include a swimming pool, cabanas
with restrooms, spas and open space landscaping. The Project will
be developed in accordance with California Civil Code, Sections
1350, et se'q., and in substantial conformance with the develop-
ment plan and plans submitted to and approved by the City and/or
ORE. The Association will maintain the Common Property and will
be the management body for the Project, as provided herein.
(a) As presently planned, the Property, including
all Improvements constructed thereon, will be the first
Phase of the Project and will consist of approximately
forty-four (44) Condominiums. The Condominium Units will be
completed prior to the first close of an escrow for the sale
of a Condominium in the Property. The Condominiums are more
particularly described in the Article herein entitled
"Description of the Condominiums" and are "stacked"
Condominium Units (i.e. one Condominium Unit above another).
The Owners in the first Phase will receive title to their
respective Condominium Units, various easements (exclusive
and nonexclusive, as set forth in this Declaration), an
undivided one/forty-fourth (1/44) interest in the Common
Area in the first Phase of the Project and a membership in
the Association.
(b) As presently planned, the subsequent Phases
of 4200 Harbor Drive may be annexed as more particularly set
forth in this Declaration, and the Condominium Buildings and
Condominium Units in such Phases will be of similar con-
struction and appearance as the Condominium Units in the
first Phase. The Owners in subsequent Phases will receive
title to their respective Condominium Units, various ease-
ments (exclusive and nonexclusive, as set forth in this Dec-
laration and the Declaration of Annexation recorded on said
Phase), an undivided interest in the Common Area in such
Phase, and a membership in the Association.
Section 2. Membership in Association. As more par-
ticularly set forth in this Declaration, each Owner of a Condo-
minium in the Project shall automatically become a Member of the
Association, and shall be obligated for the payment of Assess-
ments to the Association. In addition, each Owner, his family
members, lessees, tenants, guests and invitees, will be entitled
to the use and enjoyment of the Common Property within the Proj-
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ect, in accordance with this Declaration, the By-Laws and Rules
and Regulations adopted by the Board.
Section 3. Annexation o£ Subsequent Phases Into the
Association. At such time as future Phases are developed, if
ever, Declarant may annex said Phases into the Association pur-
suant to the terms and conditions set forth herein. If Declarant
elects to annex said Phases, a Declaration of Annexation shall be
recorded on each Phase, which shall serve to impose the Protec-
tive Covenants set forth herein upon such Phase and to subject
such Phase to the jurisdiction of the Association. The voting
rights in the Association and the Assessments levied by the Asso-
ciation shall be adjusted as set forth herein.
Section 4. Development Control. Nothing in this Arti-
cle or elsewhere in this Declaration shall limit the right of
Declarant (a) to complete construction of any Improvements in the
Project, (b) to redesign or otherwise alter the style, size,
color or appearance of any Improvements in any portion of the
Project owned by Declarant, (c) to construct additional
Improvements on any portion of the Project owned by Declarant,
and/or (d) to otherwise control all aspects of constructing the
Improvements in the Project, and of marketing and conveying
Condominiums in the Project. In furtherance thereof, Declarant
hereby reserves, unto itself and its successors and assigns for a
period of time not to exceed seven (7) years from recordation of
this Declaration, (a) a nonexclusive easement for ingress and
egress on, over and across the Project as necessary to construct
the Condominium Units and all other Improvements, (b) the
exclusive right to maintain a sales office, model complex,
interior design and decorator center and parking area for
employees, agents and prospective buyers, (c) the exclusive right
to place reasonable signs, flags, banners, billboards or other
forms of advertising on any portion of the Project owned or
controlled by Declarant, and (d) a nonexclusive right to utilize
the Common Property and any unassigned open parking spaces in
connection with its program for the sale or leasing of Condomin-
iums in the Project.
Section 5. Non-Liability of Declarant. Nothing in
this Article or elsewhere in this Declaration shall be understood
or construed to compel Declarant to construct any subsequent
Phase of the Project, nor to compel Declarant to annex said
Phases into the Project. The purpose of this Article is merely to
describe the legal relationship between the first and any subse-
quent Phases of the Project in the event all or any of such
Phases shall be constructed and annexed into the Project.
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ARTICLE III
DESCRIPTION OF THE CONDOMINIUMS
Declarant, in order to establish a plan of Condominium
ownership for the Property, does hereby declare that it has di-
vided, and does hereby divide, the Property into the following
freehold estates:
Section 1. "Stacked" Condominium Unit. Each "Stacked"
Condominium Unit shall be a separate interest, as defined in Sec-
tion 1351(f) of the California Civil Code, consisting of the fol-
lowing elements in accordance with the plans and specifications
for each "Stacked" Condominium Unit as more particularly shown
and described on the Condominium Plan.
(a) The Residential Airspace Element. The resi-
dential airspace element is bounded by and contained within
the interior unfinished surfaces of the perimeter walls,
floors, ceilings, windows and doors of said element, identi-
fied on the Condominium Plan by the letter "LA" followed by
its respective Condominium Unit number. The lower and upper
boundaries of each residential airspace element are hori-
zontal or sloped planes, the elevations of which are indi-
cated in the Schedule of Elevations set forth in the Condo-
minium Plan. The lateral boundaries of each residential air-
space element are vertical planes at the limits of the hori-
zontal dimensions shown in the Condominium Plan for each
residential airspace element.
Each "Stacked" Condominium Unit includes both the por-
tion of the building so described and the airspace so encom-
passed, all windows and doors in said Condominium Unit (including
all locks, handles, latches, screens and weatherstripping), the
forced air heating unit, the air conditioning compressor, if any,
the hot water heater, all built-in appliances and fixtures and
the firebox portion of the fireplace in or servicing the
Condominium Unit, if any, but the following are not a part of the
"Stacked" Condominium Unit: bearing walls, columns, beams,
floors, roofs, slabs, foundation, chimneys, fences, exterior
stairs and landings, reservoirs, tanks, pumps, private on-site
sewer laterals and lines, common mailbox structures, irrigation
equipment and other central services, pipes, ducts, flues,
chutes, conduits, wires, exterior lighting and other utility
installations wherever located (except all utility installations
and/or outlets thereof when located within the Condominium Units
including the internal and external telephone wiring designed to
exclusively serve a Condominium Unit), sidewalks, retaining
walls, poles, signs, Project monument sign, all landscaping lo-
cated on the Common Area and all recreational amenities.
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Section 2. Presumption of Boundaries of Condominium
Units. In interpreting this Declaration, the Condominium Plan and
all instruments of conveyance, the existing physical boundaries
of the Condominium Unit, or of a Condominium Unit reconstructed
in substantial accordance with the original Condominium Plan
thereof, shall be conclusively presumed to be its boundaries,
rather than the metes and bounds (or other description) expressed
in this Declaration, Condominium Plan or instrument of convey-
ance, regardless of settling or lateral movement of the Condomin-
ium Building and regardless of minor variances between the bound-
aries shown in the Condominium Plan, in the deed and/or in this
Declaration, and the actual boundaries of the Condominium Build-
ing.
Section 3. Common Area. A freehold estate consisting
of an undivided fractional fee interest in the remaining portion
of the Property is described and referred to herein as the "Com-
mon Area." The Common Area shall include, without limitation, the
Property, as defined hereinabove, the subterranean parking
garage, the Condominium Buildings (excepting therefrom the Condo-
minium Units), together with all bearing walls, columns, beams,
floors, roofs, slabs, foundations, chimneys, fences, exterior
stairs and landings, reservoirs, tanks, pumps, private on-site
sewer laterals and lines, common mailbox structures, irrigation
equipment and other central services, pipes, ducts, flues,
chutes, conduits, wires, exterior lighting and other utility in-
•
stallations wherever located (except all utility installations
and/or outlets thereof when located within the Condominium Units
including the internal and external telephone wiring designed to
exclusively serve a Condominium Unit), sidewalks, retaining
walls, poles, signs, Project monument sign, any recreational
amenities and all landscaping located on the Common Area.
Section 4. Exclusive Use Common Areas. Exclusive Use
Common Areas shall mean and refer to those portions of the Common
Area which are reserved for the exclusive use of the Owners of
particular Condominium Units. Each Exclusive Use Common Area con-
stitutes an exclusive easement appurtenant to its assigned Condo-
minium Unit, subject to the exclusive uses and purposes set forth
herein. The Exclusive Use Common Areas and the Condominium Units
within the Property, to which such Areas are appurtenant, are
identified in the Condominium Plan as follows:
(a) Balcony Area. The balcony area bounded by and
contained within the exterior finished surfaces of the bal-
cony perimeter walls, the balcony railings, walls, and
doors, identified on the Condominium Plan by the letter "B"
followed by its respective Condominium Unit number is hereby
assigned to such Condominium Unit as shown in the Condomin-
ium Plan.
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(b) Patio Area. The patio area bounded by and
contained within the exterior finished surfaces of the patio
perimeter walls and/or fences and doors, identified on the
Condominium Plan by the letter "P" followed by its respec-
tive Condominium Unit number is hereby assigned to such
Condominium Unit as shown in the Condominium Plan.
(c) Parking Area. The parking area identified on
the Condominium Plan by the letters "PS" followed by its
respective Condominium Unit number is hereby assigned to
such Condominium Unit as shown in the Condominium Plan.
(d) Storage Area. Some Condominium Units may be
assigned a storage area located in the subterranean garage
and identified on the Condominium Plan by the letters "SA"
followed by its respective Condominium Unit numbers.
(e) Heat Pumps. Heat pumps identified on the
Condominium Plan by the letters "HP" followed by its
respective Condominium Unit number is hereby assigned to
such Condominium Unit as shown in the Condominium Plan.
(f) Standard Air Conditioning Pad. The standard
air conditioning pad identified on the Condominium Plan by
the letters "AC" followed by its respective Condominium Unit
number is hereby assigned to such Condominium Unit as shown
in the Condominium Plan.
It shall be the obligation of each and every Owner to keep his
respective Exclusive Use Common Area in a neat, clean, safe and
attractive condition at all times. Without limiting the general-
ity of the foregoing, each Owner shall, at his sole cost and
expense, be responsible for resurfacing his balcony area (if
applicable), with a seal coat approved by the Architectural Con-
trol Committee. In no event shall any Owner install any arti-
ficial turf on the exterior staircase in his balcony area. The
Association shall be responsible for painting and performing all
routine maintenance of all structural components of the Exclusive
Use Common Area and for making all structural repairs to the
Exclusive Use Common Area; provided, however, if any maintenance
or repairs are required due to the willful or negligent acts or
omissions of any Owner, his family, lessees, tenants, guests or
invitees, the Association shall levy a Compliance Assessment
against the Owner for such costs.
Section 5. Undivided Fractional Fee Interest in Com-
mon Area. The interest in the Common Area of the Property hereby
established and which shall be conveyed with each respective Con-
dominium Unit in the Property is a one/forty-fourth (l/44th)
undivided fractional fee interest. The above respective undivided
fractional fee interest established and to be conveyed with the
respective Condominium Units, as indicated above, cannot be
changed. Declarant, for and on behalf of itself, and its succes-
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sors, assigns and grantees, covenants and agrees that neither the
Condominium Unit nor the respective undivided fractional fee in-
terest in the Common Area shall be separately conveyed or encum-
bered. An otherwise valid conveyance or encumbrance referring
only to the Condominium Unit shall also convey or encumber the
respective undivided fractional fee interest in the Common Area.
Any attempt to convey or encumber the undivided fractional fee
interest in the Common Area without the respective Condominium
Unit shall be null and void.
Section 6. Easements Over Common Property. Each Owner
shall have a nonexclusive easement appurtenant to his Condominium
for ingress, egress, use and enjoyment on and over the Common
Property, except those portions of the Common Area set aside as
Exclusive Use Common Area, as provided for in this Declaration.
Section 7. Components of Condominium Ownership. Each
Condominium includes: (a) a separate interest in a Condominium
Unit, as defined in Sections 1 or 2 hereinabove; (b) all ease-
ments, exclusive and nonexclusive, appurtenant to the respective
Condominium Unit; (c) a one/forty-fourth (l/44th) undivided frac-
tional fee interest in the Common Area; and (d) a membership in
the Association.
Section 8. Condominium Numbering. The forty-four (44)
individual Condominium Units which are hereby established and
which shall be individually conveyed are described and numbered
on the Condominium Plan.
Section 9. Guest Parking Areas. Except as otherwise
provided in this Declaration, any unassigned open parking areas,
shown and designated on the Condominium Plan by the letters "GP",
shall be used for guest parking.
Section 10. Reservation of Easements Over Common Pro-
perty for Subsequent Phases. Declarant hereby reserves the right
to grant nonexclusive easements over the Common Property in this
first Phase of the Project (except any portions of the Common
Area set aside as Exclusive Use Common Area and except for any
portions subject to the rights reserved by Declarant as set forth
in this Declaration) in favor of each Owner of a Condominium in a
subsequent Phase at such time as the annexation of such Phase be-
comes effective, and the Owners of the Condominiums described in
this Declaration shall automatically obtain nonexclusive ease-
ments over all Common Property which is a part of such subsequent
Phase, except any portions of the Common Area set aside as Exclu-
sive Use Common Area or subject to rights reserved by Declarant.
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ARTICLE IV
RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE COMMON PROPERTY
Section 1. Owners' Easements. Every Owner shall have
a nonexclusive right and easement of access, use and enjoyment in
and to the Common Property. Said right and easement shall be ap-
purtenant to and shall pass with title to every Condominium, sub-
ject to the limitations set forth in Section 2 below.
Section 2. Limitations on Owners' Easement Rights.
The rights and easements of access, use and enjoyment set forth
in Section 1 hereinabove shall be subject to the provisions of
this Declaration, including, but not limited to, the following:
(a) The right of Declarant to designate addition-
al Common Area and Association Property by recordation of
one (1) or more Declarations of Annexation, pursuant to the
provisions of the Article herein entitled "Annexation of
Additional Property";
(b) The right of the Association to reasonably
limit the number of guests of Owners;
(c) The right of the Association to establish and
enforce reasonable Rules and Regulations pertaining to the
use of the Common Property and Exclusive Use Common Area;
(d) The right of the Association, in accordance
with its Articles, By-Laws and this Declaration, to borrow
money with the assent of sixty-seven percent (67%) of the
voting power of the Association, excluding Declarant, and/or
to Mortgage, pledge, deed in trust or otherwise hypothecate
any or all of its real or personal property as security for
money borrowed or debts incurred, for the purpose of im-
proving or repairing the Common Property and related facili-
ties;
(e) The right of the Association to suspend the
voting rights and rights and easements of any Member, (and
the persons depriving such rights and easements from any
Member) to use and enjoy any recreational amenities on the
Common Property for the period during which any Assessment
against such Member's Condominium remains unpaid and delin-
quent; and after Notice and Hearing, to impose monetary
penalties or suspend such use rights and easements for a
period not to exceed thirty (30) days for any noncontinuing
violation of this Declaration or Rules and Regulations, it
being understood that any suspension for either nonpayment
of any Assessments or breach of such Rules shall not consti-
tute a waiver or discharge of the Member's obligations to
pay Assessments as provided herein;
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(f) Subject to the terms and provisions of the
Article herein entitled "Mortgagee Protection," the right of
the Association to dedicate or transfer all or any part of
the Common Property to any public agency, authority or util-
ity for such purposes and subject to such conditions as may
be agreed to by the Owners. No such dedication or transfer
shall be effective unless: (1) an instrument approving said
dedication or transfer is signed by two authorized officers
of the Association attesting that Owners representing at
least sixty-seven percent (67%) of the voting power of the
Association, excluding Declarant, approved such action and
is recorded in the Office of the County Recorder for San
Diego County, and (2) a written notice of the proposed
dedication or transfer is sent to every Owner not less than
fifteen (15) days nor more than thirty (30) days in advance;
provided, however, that the dedication or transfer of
easements for utilities or for other public purposes
consistent with the intended use of the Common Property
shall not require the prior approval of the Members of the
Association;
(g) The right of the Association to perform and
exercise its duties and powers as set forth herein;
(h) The right of the Association to approve,
which approval shall not be unreasonably withheld, and - im-
pose various conditions on the reasonable access to the
Common Property for the purpose of allowing an Owner to
maintain the internal and external telephone wiring designed
to serve his particular Condominium Unit;
(i) Other rights of the Association, the Archi-
tectural Control Committee, the Board, the Owners and De-
clarant with respect to the Common Property as may be pro-
vided for in this Declaration; and
(j) Any limitations, restrictions or conditions
affecting the use, enjoyment or maintenance of the Common
Property imposed by Declarant or by the City, or other
governmental agency having jurisdiction to impose any such
limitations, restrictions or conditions, including, but not
limited to, the rights of the City or such other govern-
mental agency having jurisdiction to use their vehicles or
appropriate equipment over those portions of the Common
Property designed for vehicular movement to perform munici-
pal functions or emergency or essential public services.
Section 3. Delegation of Common Property Use Rights.
Any Owner who resides within the Project may delegate his rights
of use and enjoyment to the Common Property to the members of his
immediate family and their guests and invitees. In the event an
Owner has rented or leased his Condominium, his rights of use and
-16-
enjoyment to the Common Property shall be automatically delegated
to his tenants or lessees for the duration of their tenancy, and
the Owner shall forfeit any rights of use and enjoyment to the
Common Property (except those portions reasonably necessary to
access said Owner's Condominium to perform normal functions of a
landlord) for the duration of such tenancy. With respect to an
installment land sales contract, the seller under the contract
shall be deemed to have delegated his rights of use and enjoyment
to the Common Property to the purchaser under the contract.
Section 4. Easements for Vehicular Traffic. In addi-
tion to the general right and easements for access, use and en-
joyment granted herein, there shall be, and Declarant hereby
reserves unto itself, and its successors and assigns, and grants
to each and every Owner a nonexclusive easement appurtenant to
his Condominium for vehicular traffic over the private streets
and drives within the Project.
Section 5. Easements for Utilities. The rights and
duties of the Owners of Condominiums within the Project with re-
spect to sanitary sewer, water, electricity, gas, television ca-
ble and telephone lines, and other facilities, shall be governed
by the following:
(a) Each respective utility company shall main-
tain all utility facilities and connections on the Project
owned by such utility company; provided, however, that- if
any company shall fail to do so, it shall be the obligation
of each Owner to maintain those facilities and connections
located upon or within such Owner's Condominium and it shall
be the obligation of the Association to maintain those fa-
cilities and connections located upon the Common Property.
Notwithstanding the foregoing, internal and external tele-
phone wiring designed to serve a single Condominium Unit,
but located outside the boundaries of the Condominium Unit,
shall be maintained by the Owner of said Condominium Unit.
(b) Wherever sanitary sewer, water or gas connec-
tions, television cables, electricity or telephone lines are
installed within the Project and it becomes necessary to
gain access to said connections, cables and/or lines through
a Condominium Unit owned by someone other than the Owner of
the Condominium Unit served by said connections, cables
and/or lines, the Owner of the Condominium Unit served by
said connections, cables and/or lines shall have the right,
and is hereby granted an easement to the full extent neces-
sary therefor, to enter upon such other Condominium Unit or
to have the utility companies enter upon such other Condo-
minium Unit to repair, replace and generally maintain said
connections, cables and/or lines.
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(c) Whenever sanitary sewer, water or gas connec-
tions, television cables, electricity or telephone lines are
installed within the Project, and said connections, cables
and/or lines serve more than one (1) Condominium Unit, the
Owner of each Condominium Unit served by said connections,
cables and/or lines shall be entitled to the full use and
enjoyment of such portions of same as service his Condomini-
um Unit.
(d) In the event of a dispute between Owners re-
specting the repair or rebuilding of the aforesaid connec-
tions, cables and/or lines, or the sharing of the cost
thereof, upon written request of one (1) of such Owners ad-
dressed to the Association, the matter shall be submitted to
the Board who shall decide the dispute, and the decision of
the Board shall be final and conclusive on the Owners.
(e) Easements over the Project for the installa-
tion and maintenance of electric and telephone lines, water,
gas, drainage and sanitary sewer connections and facilities,
and television antenna cables and facilities, all as shown
on the recorded map of the Project and as may be hereafter
required or needed to service the Project, are hereby re-
served by Declarant, together with the right to grant and
transfer the same.
Section 6. Easements for Maintenance of the Common
Property. There is hereby created, granted and reserved a
nonexclusive easement in favor of the Association for ingress,
egress and access on, over and across all portions of the Project
as reasonably required by the Association to perform its mainte-
nance obligations set forth in this Declaration. In the event it
becomes necessary for the Association to enter upon any Condo-
minium Unit or Exclusive Use Common Area for purposes of:
(a) maintaining the Common Property; or (b) bringing an Owner
and/or his Condominium into compliance with this Declaration, in
accordance with the provisions set forth herein, the Association,
and its duly authorized agents and employees, shall have the
right, after reasonable notice to the Owner and at a reasonable
hour of the day, to enter upon or within such Owner's Condominium
Unit for the performance of such work. Such entry shall be made
with as little inconvenience to the Owner as is practicable, and
in the event that any damage shall be proximately caused by such
entry, the Association shall repair the same at its expense.
Notwithstanding the foregoing, in the event of an emergency, such
right of entry shall be immediate.
Section 7. Easements for Drainage. There are hereby
created, granted and reserved over the Common Property (including
the Exclusive Use Common Areas) easements for drainage according
to the established patterns for drainage created by the approved
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grading plans for the Project, as well as according to the
actual, natural and existing patterns for drainage. Each Owner
covenants and agrees that he shall not obstruct or otherwise
interfere with said drainage patterns of waters, or in the alter-
native, that in the event it is necessary and essential to alter
said drainage patterns, he will make adequate provisions for
proper drainage and submit such plans for approval by the Archi-
tectural Control Committee. In conjunction therewith, each Owner
covenants and agrees that he shall not alter, in any manner what-
soever, the surface of his patio area or balcony area, or
obstruct any drainage spouts in said areas.
Section 8. Easements for Construction and Sales. De-
clarant hereby reserves, for a period of seven (7) years from the
recordation of this Declaration or until all Condominiums in the
Project are sold (and escrows closed), whichever occurs first,
nonexclusive easements for access, ingress and egress on and over
the Project to carry on normal sales activity, including the op-
eration of a models complex, sales office and parking area, and
the display of promotional signs and exhibits in connection with
the sale or lease of Condominiums in the Project.
Section 9. Easements for Air Conditioners/Forced Air
Heating Units. As to any air conditioning compressor or forced
air heating unit which is located on a portion of the Common
Area, which includes the roofs of the Condominium Buildings,
there is hereby created, established and granted an exclusive
easement on, over and across said portion of the Common Area for
the permanent placement of such compressor. Additionally, each
Owner is granted an easement for ingress, egress and access on
and over the Common Area to maintain, repair and replace his re-
spective air conditioning compressor and/or heating unit.
Section 10. Reservation of Construction Rights by De-
clarant. In addition to the rights reserved by Declarant to con-
trol development of the Project as set forth in the Article here-
inabove entitled "Introduction to 4200 Harbor Drive Pointe,"
nothing in this Declaration shall limit the right of Declarant to
establish, reserve and/or grant additional licenses, easements
and rights-of-way in favor of Declarant, utility companies or
others as may, from time to time, as may be reasonably necessary
for the development of the Project. The foregoing rights
established and reserved by Declarant shall be subject only to
the applicable regulations and requirements of the City and the
ORE.
Section 11. Easement for Public Service Uses. In addi-
tion to the foregoing easements over the Common Property, there
are hereby created, established and granted easements for public
services, including, but not limited to, the right of police,
fire, ambulance and other public services to enter upon any part
-19-
of the Common Property for purposes of serving the health and
welfare of all Owners in the Project.
Section 12. Owner Cooperation for Fumigation. In the
event that it shall become reasonably necessary for the Associ-
ation to fumigate a Condominium Building to control termites, in-
sects, wood-destroying pests, organisms or for other similar pur-
poses, the Owners of all Condominium Units in said Condominium
Building shall cooperate with the Association so as to enable
such work to be promptly and effectively completed (including,
but not limited to, agreeing on the dates the Owners will vacate
their respective Condominium Units to enable the fumigation work
to be performed). The cost of such fumigation may be included in
the Regular Assessments or reviewed by the Board as a Special
Assessment in accordance with the Article hereinbelow entitled
"Assessments," as the Board deems appropriate. In any case, each
Owner shall be responsible for his respective costs for food and
lodging during the period the Condominium Building is required to
be vacated. In the event it is necessary to temporarily vacate a
Condominium Unit to accommodate the control of termites, insects,
wood-destroying pests or organisms, the Association shall give
notice to the affected Condominium Unit Owners not less than
fifteen (15) days nor more than thirty (30) days prior to the
date that said Owners must temporarily vacate their Condominium
Unit. The notice shall state the reason for the temporary
relocation, the date and time of the beginning of the fumigation
or treatment, the anticipated date and time of termination of
treatment, and the fact that each Owner shall be responsible for
his respective costs for food and lodging during the temporary
relocation. In order for the above-mentioned notice by the
Association to be deemed complete, the Association must comply
with either of the following:
(a) Personal delivery of a copy of the notice to
the occupants of the affected Condominium Units and the
mailing of said notice to the Owners, if different than the
occupants, by first class mail, postage prepaid, at the most
current address indicated on the books of the Association;
and
(b) Mailing a copy of the notice to the occupants
of the affected Condominium Units at the address of said
Condominium Units and a copy of the notice to the Owners, if
different than the occupants, by first class mail, postage
prepaid, at the most current address shown on the books of
the Association.
Section 13. Control and/or Transfer of Title of Common
Property. Control of the Common Property (excluding those por-
tions of the Common Property which are subject to the various
rights reserved by Declarant as set forth in this Declaration)
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shall be turned over by Declarant to the Association prior to or
simultaneously with the first close of escrow for the sale of a
Condominium in the Project. Without limiting the generality of
the foregoing, Declarant shall convey title to the Association
Property to the Association free and clear of all encumbrances
and liens, except property rights in and to the Association Pro-
perty which are of record or created herein, and any current real
property taxes, which shall be prorated to the date of transfer.
Said conveyance shall be made to the Association prior to or
concurrently with the first conveyance of a Condominium in a
Phase of the Project in which the Association Property is
located.
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ARTICLE V
THE ASSOCIATION
Section 1. Membership. Every person or entity who or
which is an Owner, as defined hereinabove, shall be a Member of
the Association. The foregoing is not intended to include persons
or entities who hold an interest in a Condominium in the Project
merely as security for the performance of an obligation.
Section 2. Voting Rights. The Association shall have
two (2) classes of voting membership, as follows:
Class A. Class A Members shall be all Owners, with
the exception of the Declarant, and shall be entitled to one
(1) vote for each Condominium owned. When more than one (1)
person holds an interest in any Condominium, all such per-
sons shall be Members. The vote for such Condominium shall
be exercised as they among themselves determine, but in no
event shall more than one (1) vote be cast with respect to
any Condominium.
Class B. The Class B Member shall be the Declarant
and shall be entitled to three (3) votes for each Condomini-
um owned in the Project upon which Declarant is then paying
the appropriate monthly Assessments provided for hereinbe-
low. The Class B membership shall cease and be converted to
Class A membership upon the happening of either of the fol-
lowing events, whichever occurs earliest:
(a) The second anniversary of the original
•
issuance of the most recently issued Final Subdivision
Public Report for a Phase of the Project;
(b) The seventh anniversary of the first
close of an escrow in the first Phase of the Project.
Class C. The Class C member shall be the Decla-
rant. The Class C membership shall not be considered a part
of the voting power of the Association, and Declarant shall
not be entitled to exercise any Class C vote except for the
purpose of electing those members of the Board of Director
which the Class C member is entitled to elect hereunder. Un-
less terminated earlier, the Class C member shall be
entitled to solely elect a majority of the members of the
Board of Directors until the seventh (7th) anniversary of
the first close of an escrow in the first Phase of the
Project. The Class C membership shall terminate at such time
that the Declarant no longer owns a condominium in the
Project.
Any action by the Association which must have the ap-
proval of the membership of the Association before being under-
taken shall require the vote or written assent of both a majority
of the Class B membership as well as a majority of the Class A
membership, so long as there are two (2) outstanding classes of
-22-
membership, unless a specific provision of this Declaration or
the By-Laws or Articles of the Association requires the approval
of a greater percentage of the voting membership. Notwithstanding
the foregoing, any action by the Association pursuant to the Ar-
ticle contained herein entitled "Enforcement of Bonded Obliga-
tions" shall only require a majority of the voting power of the
Owners, other than Declarant.
Section 3. Adjustment of Voting Rights. The voting
rights in the Association shall be adjusted on the first day of
the month immediately following the first close of an escrow for
the sale of a Condominium in each subsequent Phase of the Pro-
ject.
Section 4. Vesting of Voting Rights. The voting
rights attributable to any given Condominium in the Project, as
provided for herein, shall not vest until the Assessments pro-
vided for hereinbelow have been levied by the Association against
said Condominium.
Section 5. Suspension of Voting Rights. As more par-
ticularly set forth in the Article entitled "General Provisions,"
the Board shall have the authority, among other things, to sus-
pend the voting rights of any Member to vote at any meeting of
the Members for any period during which such Owner is delinquent
in the payment of any Assessment, regardless of type, it being
understood that any suspension for nonpayment of any Assessment
shall not constitute a waiver or discharge of the Member's obli-
gation to pay the Assessments provided for in this Declaration.
Section 6. Transfer. The Association membership held
by any Owner of a Condominium shall not be transferred, pledged
or alienated in any way, except as incidental to the sale of such
Condominium. In the event of such sale, the Association member-
ship may only be transferred, pledged or alienated to the bona
fide purchaser or purchasers of the Condominium, or to the Mort-
gagee (or third party purchaser) of such Condominium upon a fore-
closure sale. Any attempt to make a prohibited transfer is void
and will not be reflected upon the books and records of the Asso-
ciation. The Association may levy a reasonable transfer fee
against new Owners and their Condominiums (which fee shall be a
Compliance Assessment chargeable to such new Owner) to reimburse
the Association for the actual administrative cost of transferr-
ing the memberships to the new Owners on the records of the Asso-
ciation.
Section 7. Proxies. Votes may be cast in person or by
proxy. Proxies must be filed with the Secretary before the ap-
pointed time for each meeting. Every proxy shall be revocable and
shall automatically terminate upon the earliest of the following:
(a) the conveyance by the Owner of his Condominium; (b) the date
of automatic termination, if any, specified in the proxy, but not
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to exceed three (3) years from the date of issuance of the proxy;
or (c) eleven (11) months from the date of issuance of the proxy,
if no automatic termination date is specified in the proxy. Any
form of proxy or written ballot distributed to the membership of
the Association shall afford an Owner the opportunity to specify
a choice between approval and disapproval of each matter or group
of matters to be acted upon at the meeting for which said proxy
was distributed, except it shall not be mandatory that a candi-
date for election to the Board be named in the proxy. A proxy or
written ballot shall provide that, where the Owner specifies a
choice, the vote shall be cast in accordance with that choice. In
addition, the proxy shall also identify the person or persons
authorized to exercise the proxy and the length of time it shall
be valid.
ARTICLE VI
POWERS AND DUTIES OF THE ASSOCIATION
Section 1. Management Body. The Association is hereby
designated as the management body of the Project. The Members of
the Association shall be the Owners in the Project as provided
herein, and the affairs of the Association shall be managed by a
Board of Directors, as more particularly set forth in the By-
Laws. The initial Board shall be appointed by the incorporator(s)
or its/their successor(s). Thereafter, the Directors shall be
elected as provided in the By-Laws.
Section 2. Powers. The Board, for and on behalf of
the Association, shall have the right and power to do all things
necessary to conduct, manage and control the affairs and business
of the Association. Subject to the provisions of the Articles,
the By-Laws and this Declaration, the Board shall have all gen-
eral powers authorized under the California Corporations Code for
nonprofit, mutual benefit corporations, and shall have the fol-
lowing specific powers:
(a) Enforce the provisions of this Declaration
and all contracts or any agreements to which the Association
is a party;
(b) Acquire, manage, maintain, repair and replace
all Common Property and Improvements located thereon, in-
cluding all personal property, in a neat, clean, safe and
attractive condition at all times, and to pay all utilities,
gardening and other necessary services for the Common Prop-
erty, all as more specifically set forth in the Article
herein entitled "Repair and Maintenance";
(c) Maintain fire, casualty, liability and fidel-
ity bond coverage, and other insurance coverage pursuant to
the terms of that Article herein entitled "Insurance";
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(d) Obtain, for the benefit of the Common Proper-
ty, all commonly metered water, gas and electric services,
refuse collection and cable (or master antenna) television
service;
(e) Employ and retain a professional manager
and/or management company to perform all or any portion of
the duties and responsibilities of the Board and engage such
other personnel (including attorneys and accountants) as
necessary for the operation of the Project and administra-
tion of the Association;
(f) Pay all taxes and special assessments which
would be a lien upon the entire Project or the Common Prop-
erty, and to discharge any lien or encumbrance levied
against the entire Project or the Common Property;
(g) Pay for reconstruction of any portion of the
Common Property damaged or destroyed;
(h) Delegate its powers;
(i) Adopt reasonable Rules and Regulations con-
cerning the maintenance, improvement, use and/or occupancy
of the Project;
(j) Enter into any Condominium when necessary in
connection with maintenance or construction for which the
Association is responsible; and
(k) Perform any and all other acts and things
that a nonprofit, mutual benefit corporation organized under
the laws of the State of California is empowered to do,
which may be necessary, convenient or appropriate in the
administration of its affairs for the specific purposes of
meeting its duties as set forth in this Declaration.
Section 3. Duties. The Board shall perform and exe-
cute the following duties for and on behalf of the Association:
(a) Provide, water, sewer, gas, electricity, gar-
bage and trash collection, periodic drainage device clearing
and other necessary utility services for the Common Proper-
ty, and, if not separately metered or provided, for the Con-
dominium Units;
(b) Provide insurance for the Association and its
Members in accordance with the provisions of the Article
hereinbelow entitled "Insurance."
(c) Acquire, own, maintain and repair all por-
tions of the Common Property (and any Common Property which
is annexed into the Project) in a neat, clean, safe, attrac-
tive, sanitary and orderly condition at all times. Without
limiting the generality of the foregoing, the Association
shall be responsible for the following:
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(i) maintaining the private streets, if
any, entry gates and related systems, sidewalks,
private on-site sewer lines and laterals, storm drains,
drainage channels, debris basins and/or other similar
drainage facilities, if any, in a condition comparable
to the condition initially approved by the City; and
(ii) maintaining all natural slopes, (in-
cluding performing appropriate brush and weed abate-
ment) in accordance with the requirements of the Fire
Marshal so that such slopes do not become a fire menace
as defined in the California Health and Safety Code,
and maintaining all landscaping and related water
conservation irrigation systems on all manufactured
slopes (or other planted slopes) with appropriate plant
material in a condition comparable to the condition
initially approved by the City.
(d) Contract for any other material, supplies,
furniture, labor, services, maintenance, repairs, structural
alterations and insurance which the Association is required
to pay for pursuant to the terms and provisions of this Dec-
laration or by law;
(e) Cause a yearly inspection to be made, by a
licensed engineer, of all slope areas and drainage devices
located within the Project;
(f) Cause financial statements for the Associa-
tion to be regularly prepared and copies distributed to each
Member of the Association, regardless of the number of Mem-
bers or the amount of assets of the Association:
(1) A pro forma operating statement (budget)
for each fiscal year shall be distributed not less than
forty-five (45) days nor more than sixty (60) days pri-
or to the beginning of the fiscal year, and shall con-
tain the following information:
(i) An itemized estimate of the Asso-
ciation's revenue and expenses, determined on an
accrual basis;
(ii) The amount of the total cash re-
serves of the Association which are then currently
available for the major repair or replacement of
Common Property Improvements and for other con-
tingencies ;
(iii) An itemized estimate of the
current replacement costs of the remaining useful
life of the Common Property Improvements, together
with an explanation of the methods of funding
-26-
being utilized by the Association to defray the
costs of future repairs, replacements or additions
to the Common Property Improvements; and
(iv) A general statement setting forth
the procedures utilized by the Association to cal-
culate and establish reserves to defray the costs
of future repairs, replacements or additions to
the Common Property Improvements.
(2) A balance sheet as of an accounting date
which is the last day of the month closest in time to
six (6) months from the date of closing for the first
sale of a Condominium, and an operating statement for
the period from the date of the first closing to the
said accounting date, shall be distributed within sixty
(60) days after the accounting date. This operating
statement shall include a schedule of Assessments re-
ceived, and receivable, identified by the number of the
Condominium and the name of the person or entity as-
sessed;
(3) An annual report consisting of the fol-
lowing shall be distributed within one hundred twenty
(120) days after the close of the fiscal year:
(i) A balance sheet as of the last
day of the Association's fiscal year;
(ii) An operating (income) statement•
for the fiscal year;
(iii) A statement of changes in finan-
cial position for the fiscal year; and
(iv) Any information required to be
reported pursuant to Section 8322 of the Cali-
fornia Corporations Code.
This annual report shall ordinarily be prepared by a
licensee of the California Board of Accountancy, in
accordance with generally accepted accounting prin-
ciples, for any fiscal year in which the gross income
of the Association exceeds Seventy-Five Thousand Dol-
lars ($75,000.00). However, if, for any reason, the re-
port is not prepared by a licensee of the California
Board of Accountancy, said report shall be accompanied
by a certificate from an authorized officer of the
Association that the statements were prepared without
audit from the books and records of the Association.
Notwithstanding the foregoing/ in lieu of distributing
the financial statement required hereinabove, the Board
may elect to distribute a summary of the statement to
all Members with a written notice, in at least 10-point
bold type on the front page, that the statement is
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available at the business office of the Association, or
at another suitable location within the Project, and
that copies will be provided upon request and at the
expense of the Association. If any Member requests that
a copy of the financial statement required herein be
mailed to said Member, the Association shall provide
the copy to the Member by first-class mail at the ex-
pense of the Association, and mailed within five (5)
days of the receipt of said request;
(4) A statement of the Association's poli-
cies and practices in enforcing its remedies against
Members for nonpayment of Assessments, as set forth in
the Article herein entitled "Effect of Non-Payment of
Assessments: Remedies of the Association," which shall
be distributed within sixty (60) days prior to the be-
ginning of the fiscal year; and
(5) The Board shall review on a quarterly
basis, the following:
(i) A current reconciliation of the
Association's operating accounts;
(ii) A current reconciliation of
amounts collected as reserves;
(iii) The current year's actual amounts
collected as reserves and expenses compared to the
current year's budget;
(iv) An income and expense statement
for the Association's operating and reserve ac-
counts; and
(v) The most current account state-
ments prepared by the financial institutions where
the Association maintains its operating and re-
serve accounts.
Withdrawal of funds from the Association's reserve
account shall require the signature of either: (i) two
(2) members of the Board; or (ii) one (1) member of the
Board and an officer of the Association who is not also
a member of its Board. As used in this Section, "re-
serve account" means moneys that the Board has identi-
fied from its annual budget for use to defray the
future repair or replacement of, or additions to, those
major components of the Common Property which the Asso-
ciation is obligated to repair or replace on a periodic
basis, rather than on a regular annual basis.
(g) Assume and pay out of the Assessments pro-
vided for hereinbelow all costs and expenses incurred by the
Association in connection with the performance and execution
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of all of the aforesaid powers and duties, and any other
powers and duties the Association may assume as provided for
in Section 4 hereinbelow;
(h) Formulate, adopt and enforce such Rules and
Regulations as it may deem proper for the operation of the
Common Property, as more particularly described below. No-
tice of adoption of any such Rules and Regulations and of
any change, amendment or repeal thereof, shall be given in
writing to each Member and shall be on file in the principal
office of the Association. In the event of any conflict be-
tween such Rules and Regulations and this Declaration, this
Declaration shall prevail;
(i) Enforce all applicable provisions of this
Declaration, the Articles, By-Laws and such Rules and Regu-
lations of the Association, and of all other documents per-
taining to the ownership, use, management and control of the
Project;
(j) Give notices in writing to the Federal Home
Loan Mortgage Corporation (FHLMC), the Federal National
Mortgage Association (FNMA) and the Government National
Mortgage Association (GNMA), and other lenders and investors
participating in the financing of the sale of Condominiums
in the Project, as required herein; and
(k) Within ten (10) days of the mailing or de-
livery of a written request from an Owner, provide said Own-
er with a copy of this Declaration and the By-Laws and Arti-
cles for the Association, together with a true statement in
writing as to the amount of any delinquent Assessments, pen-
alties, attorneys' fees and other charges therein as pro-
vided by this Declaration or other management documents of
the Board as of the date of such request. The Board may im-
pose a fee for providing the foregoing, but in no event
shall the fee exceed the reasonable cost to prepare and re-
produce the requested documents. In addition, make available
during normal working business hours or upon request under
reasonable circumstances to any prospective purchaser of a
Condominium, any Owner of a Condominium, any first Mortgagee
and the holder(s), insurer(s) and guarantor(s) of the first
Mortgage on any Condominium, current copies of the Declara-
tion, the Articles of Incorporation, the By-Laws, the Rules
and Regulations, the membership register, including mailing
addresses and telephone numbers, and all other books,
records and financial statements of the Association.
Section 4. Discretionary Powers. The Board, at its
option, may assume, perform and execute the following powers and
duties for and on behalf of the Association:
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Section 6. Limitations on Contracts. Except as other-
wise provided herein, no contract entered into by the Associa-
tion, or the Board acting for and on behalf of the Association,
may run for a term longer than one (1) year, except with the vote
or written assent of a majority of the voting power of the Asso-
ciation and a majority of the votes residing in Members, other
than the Declarant.
Section 7. Delegations of Duties. In the event that
the Association shall delegate any or all of its duties, powers
or functions to any person, corporation or firm to act as man-
ager, neither the Association nor the members of its Board shall
be liable for any omission or improper exercise by the manager of
any such duty, power or function so delegated.
Section 8. Right of Entry for Emergency. The Board,
any person authorized by the Board or any Owner may enter any
Condominium in the event of any emergency involving illness or
potential danger to life or property. Such entry shall be made
with as little inconvenience to the Owner as is practicable, and
in the event that any damage shall be proximately caused by or
result from said entry, the Association shall repair the same at
its expense.
Section 9. Right of Entry for Repairs. The Board, or
any person authorized by the Board, shall have the right to en-
ter, upon reasonable notice, any Condominium to effect necessary
repairs which the Owner has failed to perform or which are neces-
sary in connection with the repairs to the Common Property or an
adjoining Condominium. Such entry shall be made with as little
inconvenience to the Owner as is practicable, and in the event
that any damage shall be proximately caused by or result from
said entry, the Association shall repair the same at its expense.
Section 10. Limitations on Board Action. The Board
shall be prohibited from taking any of the following actions,
except with the vote or written assent of a majority of the vot-
ing power of the Association and a majority of the votes residing
in Members, other than the Declarant:
(a) Entering into a contract with a third person,
wherein the third person will furnish goods or services for
the Common Property or the Association for a term longer
than one (1) year, with the following exceptions:
(1) A contract with a public utility company
if the rates charged for the materials or services are
regulated by the Public Utilities Commission; provided,
however, that the term of the contract shall not exceed
the shortest term for which the supplier will contract
at the regulated rate;
(2) Prepaid casualty and/or liability insur-
ance policies of not to exceed three (3) years dura-
-31-
tion, provided that the policy permits for short-rate
cancellation by the insured;
(3) Lease agreements for laundry room fix-
tures and equipment of not to exceed five (5) years
duration, provided that the lessor under the agreement
is not an entity in which Declarant has a direct or
indirect interest of ten percent (10%) or more;
(4) Agreements for cable television services
and equipment or satellite dish television services and
equipment of not to exceed five (5) years duration,
provided that the lessor under the agreement is not an
entity in which Declarant has a direct or indirect in-
terest of ten percent (10%) or. more; and
(5) Agreements for sale or lease of burglar
alarm and fire alarm equipment installation and ser-
vices of not to exceed five (5) years duration, pro-
vided that the supplier or suppliers are not entities
in which the Declarant has a direct or indirect owner-
ship interest of ten percent (10%) or more.
(b) Incurring aggregate expenditures for capital
improvements to the Common Property in any fiscal year in
excess of five percent (5%) of the budgeted gross expenses
of the Association for that fiscal year;
(c) Selling during any fiscal year property of
the Association having an aggregate fair market value great-
er than five percent (5%) of the budgeted gross expenses of
the Association for that fiscal year;
(d) Paying compensation to Directors or to of-
ficers of the Association for services performed in the con-
duct of the Association's business; provided, however, that
the Board may cause a Director or officer to be reimbursed
for expenses incurred in carrying on the business of the
Association; or
(e) Filling a vacancy on the Board created by the
removal of a Director.
Section 11. Licenses, Easements and Rights of Way. The
Board, for and on behalf of the Association, is authorized and
empowered to grant such licenses, easements and rights-of-way for
sewer lines, water lines, underground conduits, storm drains,
roadways, and other public utility purposes over those portions
of the Common Property upon which no building or other structure
has been erected as may be necessary and appropriate for the
orderly maintenance, preservation and enjoyment of the Common
Property or for the preservation of the health, safety, conve-
nience and welfare of the Owners. Such licenses, easements and
rights-of-way may be granted at any time prior to twenty-one (21)
years after the death of the individuals who have signed this
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Declaration and their issue who are in being as of the date here-
of, and the right to grant such licenses, easements and rights-
of-way is hereby expressly reserved.
Section 12. New Improvements. Except as otherwise pro-
vided in this Declaration, the Association may construct new Im-
provements or additions to the Common Property, or demolish ex-
isting Improvements, provided that in the case of any Improve-
ment, addition or demolition involving a total expenditure in
excess of five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year, the written consent or vote of
a majority of the Owners (other than the Declarant) in the Proj-
ect as to the maximum total cost therefor shall first be obtain-
ed, and provided that no Condominium shall be altered or damaged
by any such demolition or construction without the consent of the
Owner thereof. The Board shall levy a Special Assessment against
all Owners in the Project for the cost of such work.
Section 13. Association Rules and Regulations. The
Board shall also have the power to adopt, amend and repeal Rules
and Regulations, as it deems reasonable, which may include the
establishment of a system of fines and penalties enforceable as
Compliance Assessments. The Rules and Regulations shall govern
such matters in furtherance of the purposes of the Association,
including, without limitation, the use of the Common Property,
the Exclusive Use Common Area, signs, parking restrictions and
enforcement, trash collection, minimum standards for maintenance
of Condominiums consistent with such standards as may be set
forth in this Declaration or adopted by the Architectural Control
Committee, and any other matter which is within the jurisdiction
of the Association; provided, however, that the Rules and Regula-
tions may not discriminate among Owners and shall not be incon-
sistent with this Declaration, the Articles or By-Laws. A copy of
the Rules and Regulations as they may, from time to time, be
adopted, amended or repealed, or a notice setting forth the adop-
tion, amendment or repeal of specific portions of the Rules and
Regulations, shall be delivered to each Owner. The Rules and
Regulations shall have the same force and effect as if they were
set forth in and were part of this Declaration, and shall be
binding on the Owners and their successors in interest, whether
or not actually received thereby. The Rules and Regulations, as
adopted, amended or repealed, shall be available at the principal
office of the Association to each Owner upon request. In the
event of any conflict between any such Rules and Regulations and
any other provisions of this Declaration, or the Articles or By-
Laws, the provisions of the Rules and Regulations shall be deemed
to be superseded.
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ARTICLE VII
ASSESSMENTS
Section 1. Creation of the Lien and Personal Obliga-
tion of Assessment. The Declarant, for each Condominium owned
within the Project, hereby covenants, and each Owner of any Con-
dominium, by acceptance of a deed therefor, whether or not it
shall be so expressed in such deed, is deemed to covenant and
agree to pay to the Association: (a) Regular Assessments; (b)
Special Assessments; (c) Compliance Assessments; and (d) such
other assessments as the Association may periodically establish.
The Regular and Special Assessments, together with a reasonable
late charge as may, from time to time, be established by the
Board in accordance with California law, interest, costs and rea-
sonable attorneys' fees for the collection thereof, shall be a
charge against and a continuing lien upon the Condominium against
which each such Assessment is levied, and shall also be the per-
sonal obligation of the Owner of such property at the time when
the Assessment came due. Each Compliance Assessment levied
against a Condominium, together with interest, costs, reasonable
late charges and reasonable attorneys' fees for the collection
thereof, shall be the personal obligation of the Owner of the
property at the time of the Assessment. The personal obligation
for delinquent Assessments shall not pass to the successors in
title unless expressly assumed by them.
Section 2. Purpose of Regular Assessments; Levy and
Collection. The Regular Assessments levied by the Association
shall be used exclusively to promote the health, safety and wel-
fare of the residents in the Project and to maintain, repair,
replace and improve the Common Property, and any other Improve-
ments or areas which the Association is obligated to maintain, as
provided herein. The Association, by and through its Board, shall
levy and collect Assessments from the Owner of each Condominium
in the Project in an amount sufficient to cover all of the Common
Expenses incurred by the Association in connection with the per-
formance and execution of the powers and duties set forth in this
Declaration, the By-Laws and Articles. In connection therewith,
the Association shall not impose or collect assessments, penal-
ties or fees that exceed the amount reasonably necessary for the
purpose or purposes for which they were levied. The percentage
rate for the Assessments levied by the Association shall be ad-
justed at such time as the annexation of an additional Phase
becomes effective. Regular Assessments may be collected on a
monthly installment basis.
Section 3. Regular Assessments - Basis. Regular As-
sessments payable to the Association shall be assessed equally
against all Owners of Condominiums. Each Owner's proportionate
share of the Common Expenses for any fiscal year of the Associa-
-34-
tion shall be a fraction, the numerator of which shall be the
number of Condominiums owned by such Owner, and the denominator
of which shall be the total number of Condominiums in the Project
which are subject to Assessment. Until the first day of the fis-
cal year of the Association immediately following the first close
of an escrow for the sale of a Condominium in the Project to an
Owner, the maximum Regular Assessment shall be
Dollars ($ ).
Regular Assessments may be increased as follows:
(a) Subject to the limitations of California
Civil Code Section 1366, as same may be amended, from time
to time, from and after the first day of the fiscal year
immediately following the conveyance of the first Condomin-
ium to an Owner, the maximum Regular Assessment may not be
increased each fiscal year by more than twenty percent (20%)
above the maximum Regular Assessment for the previous year
without the vote or written assent of Owners constituting a
quorum (which shall mean more than fifty percent [50%] of
Owners of the Association) casting a majority of affirmative
votes at a meeting or election of the Association, conducted
in accordance with Sections 7510, et seq., and 7613 of the
Corporations Code.
(b) The limitation set forth above does not apply
to increases in Assessments related to emergency situations
which shall be deemed to include the following:
(1) Extraordinary expenses required by an
order by a court of competent jurisdiction;
(2) Extraordinary expenses for the mainte-
nance or repair of Common Property that is necessary to
remedy any dangerous condition in the Project that rep-
resents a threat of damage or injury to any person or
property; and
(3) Extraordinary expenses necessary to re-
pair or maintain the Common Property that could not
have been reasonably anticipated by the Board at the
time the most recent Association budget was prepared.
Notwithstanding the foregoing, in the event that
the Board increases the Regular Assessment above twenty per-
cent (20%) pursuant to this Section, the Board shall dis-
tribute written notice concerning said increase to all
Owners and a copy of a resolution adopted by the Board set-
ting forth: (1) the necessity of the extraordinary expenses;
and (2) the justification why said expenses were not reason-
ably foreseeable at the time the most recent budget was
prepared.
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The Board may fix the Regular Assessment at an
amount not in excess of the maximum Regular Assessment. So
long as Declarant is offering Condominiums for sale pursuant
to a Final Subdivision Public Report, the Regular Assessment
may not be decreased by ten percent (10%) or more without
the express written consent of the Declarant and the ORE.
Notwithstanding the foregoing, following the annexation of a
subsequent Phase of the Project, pursuant to the provisions
set forth in this Declaration, the maximum Regular Assess-
ment may be automatically increased (or decreased) for all
Condominiums in the Project on the first day of the month
following the first close of an escrow for the sale of a
Condominium in said Phase without any approval of the Mem-
bers of the Association to the amount recommended by the DRE
in connection with its review and processing of the
Association budget for such Phase.
Section 4. Special Assessments.
(a) In any fiscal year the Board may not, subject
to the limitations of California Civil Code Section 1366,
without the vote or written assent of Owners constituting a
quorum (which shall mean more than fifty percent [50%] of
Owners of the Association) casting a majority of the votes
at a meeting or election of the Association, conducted in
accordance with Sections 7510, et seq., and 7613 of the
Corporations Code, levy Special Assessments to defray the
costs of any action or undertaking on behalf of the Associa-
tion which in the aggregate exceed five percent (5%) of the
budgeted gross expenses of the Association for that fiscal
year. The five percent (5%) limitation shall not apply to
increases in Special Assessments related to an emergency
situation which shall be deemed to include the following:
(1) Extraordinary expenses required by an
order by a court of competent jurisdiction;
(2) Extraordinary expenses for the mainte-
nance or repair of Common Property that is necessary to
remedy any dangerous condition in the Project that rep-
resents a threat of damage or injury to any person or
property; and
(3) Extraordinary expenses necessary to re-
pair or maintain the Common Property that could not
have been reasonably anticipated by the Board at the
time the most recent Association budget was prepared.
Notwithstanding the foregoing, in the event the
Board levies any Special Assessment that exceeds the five
percent (5%) limitation pursuant to this Section, the Board
shall distribute written notice concerning said Special
Assessment to all Owners and a copy of a resolution adopted
-36-
by the Board setting forth: (1) the necessity of said Spe-
cial Assessment; and (2) the justification why said Special
Assessment was not reasonably foreseeable at the time the
most recent budget was prepared. Except as provided in sub-
section (b) below, every Special Assessment shall be levied
upon the same basis as that prescribed for the levying of
Regular Assessments.
(b) A Special Assessment levied against Owners to
raise funds for the reconstruction or major repair of the
Condominium Buildings in the Project shall be levied on the
basis of the ratio of the square footage of the floor area
of the Condominium Unit to be assessed, to the square foot-
age of the floor area of all Condominium Units to be
assessed.
Section 5. Compliance Assessments. A Compliance
Assessment may not be characterized nor treated as an assessment
which may become a lien against the Owner's Condominium enforce-
able by a sale in accordance with the provisions of Sections
2924, 2924(b) and 2924(c) of the Civil Code; provided, however,
the foregoing shall not apply to any Compliance Assessment im-
posed against an Owner consisting of a reasonable late payment
penalty for delinquent Assessments and/or charges to reimburse
the Association for the loss of interest and for costs reasonably
incurred (including attorneys' fees) in its efforts to collect
delinquent Assessments.
Section 6. Date of Commencement of Regular Assess-
ments; Due Dates. The Regular Assessments shall commence as to
all Condominiums within a Phase of the Project on the first day
of the month following the close of escrow for the first sale of
a Condominium in such Phase to a bona fide purchaser. The first
Regular Assessments shall be adjusted according to the number of
months remaining in the fiscal year, as set forth in the By-Laws.
The Board shall fix the amount of the Regular Assessment against
each Condominium at least thirty (30) days in advance of each
Regular Assessment period. Written notice of the Regular Assess-
ment shall be sent to every Owner subject thereto at least thirty
(30) days in advance of each Assessment period.
Section 7. Collection of Assessments. Except as oth-
erwise provided above, Regular and Special Assessments shall be
levied at a uniform rate for all Condominiums and may be
collected on a monthly basis. Compliance Assessments shall be due
thirty (30) days after such Assessment has been levied.
Section 8. Certification of Payment. The Association
shall, upon demand and for a reasonable charge, furnish a cer-
tificate signed by an officer or agent of the Association setting
forth whether the Assessments on a specified Condominium have
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(a) Retain the services of a manager for the
Project and provide such other personnel as the Association
deems necessary and proper to assist in the operation of the
Association and/or management of the Common Property, re-
gardless of whether such other personnel are employed di-
rectly by the Association or otherwise;
(b) Remove or replace any Improvement that ex-
tends into the Common Property under authority of an ease-
ment when access to a utility line underneath such Improve-
ment is requested by any utility company; provided, however,
that the cost shall be assessed against the Owner of the
Condominium involved as a Compliance Assessment if said
Owner caused the Improvement to be so placed in the Common
Property without legal right to do so;
(c) Incur any liability or pay any costs or ex-
penses for a single Condominium or Owner thereof; provided,
however, that in the event the Association does incur any
such liability or pay any such costs or expenses, the amount
thereof shall be specially assessed against the Owner of
such Condominium as a Compliance Assessment; provided fur-
ther, however, that nothing herein shall permit the Associa-
tion to assess the Owners for any new Improvements to the
Common Property except as otherwise provided in this Decla-
ration;
(d) Subject to the limitations set forth in this
Article, contract for any other material, furniture, labor,
services, maintenance, repairs, structural alterations or
insurance, or pay any taxes or Assessments which, in the
opinion of the Board, shall be necessary or proper for the
operation of the Common Property for the benefit of the Own-
ers or for the enforcement of this Declaration; and
(e) Enter into a maintenance or subsidy agreement
with Declarant, at Declarant's sole discretion, to reduce
the financial obligations of Owners in the Project for
Assessment.
Section 5. Notification by Association of Defects.
The Board agrees that in the event of any alleged defect in any
improved Common Property which the Association believes the
Declarant may be responsible, the Board will provide Declarant
with written notice of such defect. Declarant shall have a rea-
sonable opportunity to inspect such alleged defect, and if
Declarant agrees with the Board (or otherwise elects to perform
the work) to repair, replace or otherwise cure any defect in
workmanship and/or material. The Association acknowledges and
agrees that Declarant, (or its authorized agents), shall be en-
titled at its sole discretion to determine the material and
methods to be used in affecting such repair, replacement or cure.
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ARTICLE VIII
EFFECT OF NON-PAYMENT OF ASSESSMENTS;
REMEDIES OF THE ASSOCIATION
Section 1. Effect of Non-Payment of Assessments; Rem-
edies of the Association. Any Regular, Special or Compliance As-,
sessment not paid within fifteen (15) days after the due date
shall be deemed delinquent and the Owner shall be required to pay
(a) reasonable costs of collection, including reasonable attor-
neys' fees; (b) a reasonable late charge not exceeding ten per-
cent (10%) of the delinquent Assessment or Ten Dollars ($10.00),
whichever is greater, or as may, from time to time, be estab-
lished by the Board in accordance with California law; and (c)
interest on all sums imposed under this Section at an annual per-
centage rate not to exceed twelve percent (12%) commencing thirty
(30) days after the Assessment was due. The Board, for and on
behalf of the Association, may commence legal action against the
Owner personally obligated to pay the same, or, in the case of a
Regular or Special Assessment, may foreclose the lien against his
Condominium. Such lien may also be foreclosed by a power of sale
or other nonjudicial procedure provided for by the laws of the
State of California. In furtherance thereof, each Owner hereby
vests in the Association, its successors or assigns, the right
and power to bring all actions at law or to pursue lien foreclo-
sure against any Owner for purposes of collecting such delinquent
Assessments.
Section 2. Notice of Delinquent Assessments. No ac-
tion shall be brought to foreclose a lien for delinquent Assess-
ments or to proceed under the power of sale herein, unless at
least thirty (30) days has expired following the date a Notice of
Delinquent Assessments is deposited in the United States mail,
certified or registered, postage prepaid, to the Owner of said
Condominium, and a copy thereof is recorded by the Association in
the Office of the County Recorder of the County in which the
Project is located. Said Notice of Delinquent Assessments must
recite a good and sufficient legal description of any such Condo-
minium, the record Owner or reputed Owner thereof, the total
amount due and payable as provided herein, and the name and ad-
dress of the principle office of the Association, and, in the
event of a nonjudicial foreclosure, as provided in Section 3
below, the name and address of the trustee authorized by the
Association to enforce the lien by sale. The Notice shall be
signed and acknowledged by the President, or Vice President, and
the Secretary, or assistant Secretary, of the Association. The
lien shall continue until fully paid or otherwise satisfied.
Section 3. Foreclosure Sale. Any foreclosure sale
provided for above is to be conducted by the Board, its attorney
or other persons authorized by the Board, in accordance with the
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(b) All property owned by a charitable or non-
profit organization exempt from taxation by the laws of the
State of California, however, no Land or Improvements de-
voted to dwelling use shall be exempt from said Assessment?
and
(c) All Association Property owned in fee by the
Association.
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been paid. If a certificate states that Assessments have been
paid, such certificate shall be conclusive evidence of such pay-
ment.
Section 9. Delivery by Owner. Each Owner of a Condo-
minium shall, as soon as practicable prior to the transfer of
title to the Condominium or the execution of a real property
sales contract, as defined in California Civil Code, Section
2985, or as may be amended, from time to time, give to the pro-
spective purchaser a copy of this Declaration and copies of the
By-Laws and Articles of the Association, and a true statement, in
writing, from the Board as to the amount of any delinquent
Assessments and information relating to penalties, attorneys'
fees and other charges authorized by this Declaration on the
Condominium as of the date the statement is issued.
Section 10. Delivery of Statement. Upon written re-
quest, the Board shall, within ten (10) days of the mailing or
delivery of such request, respectively, provide the Owner of a
Condominium with a copy of this Declaration, and copies of the
By-Laws and Articles of the Association, together with a true
statement in writing as to the amount of any delinquent Assess-
ments, penalties, attorneys' fees and other charges authorized by
this Declaration on the Condominium as of the date of the re-
quest. The Board may impose a fee for providing such documents
and statements, but in no event shall the fee exceed the reason-
able cost to prepare and reproduce the requested documents.
Section 11. Reserves. The Regular Assessments shall
include reasonable amounts, as determined by the Board, collected
as reserves for the future periodic maintenance, repair and re-
placement of all or a portion of the Common Property, or any such
other purpose determined by the Board. All amounts collected as
reserves shall be deposited by the Board in a separate bank ac-
count for the purposes for which they were collected, and are to
be segregated from and not commingled with any other funds of the
Association.
Section 12. Offsets and Waiver Prohibited. No Owner
may waive or otherwise avoid liability for the Assessments pro-
vided for herein for any reason whatsoever, including, but not
limited to, non-use of the Common Property or abandonment of his
Condominium, nor shall any Owner be entitled to any offset
against any Assessment provided for herein for any reason
whatsoever, including, but not limited to, any expenditure made
by such Owner for or on behalf of the Association.
Section 13. Exempt Property. The following property
subject to this Declaration shall be exempt from the Assessments
herein: *
(a) All property dedicated to and accepted by a
local public authority;
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provisions of Sections 2924, 2924a, 2924b and 2924c of the Cali-
fornia Civil Code applicable to the exercise of powers of sale in
Mortgages and deeds of trust, as same may be amended from time to
time, or in any other manner permitted by law. The Association,
through duly authorized agents, shall have the power to bid on
the Condominium at a foreclosure sale and to acquire, hold,
lease, mortgage and convey the same.
Section 4. Curing of Default. Upon the timely curing
of any defa'ult for which a Notice of Delinquent Assessments or
lien was filed by the Association, the officers thereof are here-
by authorized to file or record, as the case may be, an appropri-
ate release of such Notice upon receipt of payment from the
defaulting Owner of a reasonable fee to be determined by the
Association to cover the costs of preparing and filing or re-
cording such release.
Section 5. Cumulative Remedies. The Association's
remedies for non-payment of Assessments, including, but not lim-
ited to, an action to recover a money judgment, Assessment lien
and right of foreclosure and sale, are cumulative and in addition
to and not in substitution of any other rights and remedies which
the Association and its assigns may have hereunder or at law.
Section 6. Mortgagee Protection. Notwithstanding all
other provisions hereof, no lien created hereunder nor any breach
of the terms and provisions of this Declaration, nor the enforce-
ment of any term or provision hereof, shall defeat or render in-
valid the rights of any Mortgagee under any recorded first Mort-
gage or deed of trust upon a Condominium made in good faith and
for value; provided, that after such Mortgagee or other person or
entity obtains title to such Condominium by judicial or nonjudi-
cial foreclosure, such Condominium shall remain subject to this
Declaration and the payment of Assessments which fall due subse-
quent to the date of taking title.
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ARTICLE IX
USE RESTRICTIONS
The Condominium Units and Common Property shall be oc-
cupied and used only as follows:
Section l. Private Dwelling. Each Condominium Unit
shall be used as a private dwelling and for no other purpose,
except such temporary uses as shall be permitted by Declarant
while the Project is being developed and Condominiums are being
sold by Declarant; provided, however, that Declarant reserves the
right, for a period of seven (7) years from recordation hereof or
until all Condominiums in the Project are sold (and escrows
closed), whichever shall first occur, to carry on normal sales
activity on the Project, including the operation of models, sales
office, design center and parking area, provided Declarant shall
not unreasonably interfere with any other Owner's use of the
Common Property.
Section 2. Common Property Use. Use of the Common
Property shall be subject to the provisions of this Declaration,
the Rules and Regulations and to any additional limitations im-
posed by the Association.
Section 3. Conduct Affecting Insurance. Nothing shall
be done or kept in any Condominium Unit or in the Common Property
which will increase the rate of insurance on the Common Property
without the approval of the Association. No Owner shall permit
anything to be done or kept in his Condominium Unit or in the
Common Property which will result in the cancellation of insur-
ance on the Common Property or which would be in violation of any
law. If, by reason of the occupancy or use of said premises by
the Owner, the rate of insurance to the Common Property shall be
increased, the Owner shall become personally liable for the addi-
tional insurance premiums.
Section 4. Liability for Damage to the Common Prop-
erty. Each Owner shall be liable to the Association, pursuant to
the laws of the State of California, for any and all costs and
expenses which may be incurred by the Association to repair any
damage to the Common Property which may be sustained by reason of
the negligence or willful misconduct of said Owner, or of his
family, tenants, lessees, or their respective guests or invitees,
whether minor or adult. After approval by a majority of the
Board, any such costs and expenses shall be levied by the Board
as a Compliance Assessment against such Owner.
Section 5. Signs. Subject to the provisions of Cali-
fornia Civil Code, Sections 712 and 713, as same may be amended
from time to time, no sign of any kind shall be displayed to the
public view on or from any Condominium Unit or the Common Prop-
erty without the approval of the Association, except such signs
as may be used by Declarant for a period of time not to exceed
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seven (7) years from recordation hereof in connection with the
development of the Project and sale of Condominiums, and except
one (1) "for sale," "for lease" or "for exchange" sign of reason-
able size on any Condominium Unit. All signs permitted under this
Section shall conform with the City's sign ordinance, if any, and
with all applicable governmental regulations.
Section 6. Maintenance of Animals. No animals of any
kind shall be raised, bred or kept in any Condominium Unit, Ex-
clusive Use Common Area or in the Common Property, except that
two (2) common domesticated household pets, (e.g. dogs and/or
cats) may be kept in each Condominium Unit; provided, however,
that no animal shall be kept, bred or maintained for any commer-
cial purpose and shall not exceed any weight limitations
established by the Board. Each Owner shall be responsible for
cleaning up any excrement or other unclean or unsanitary condi-
tion caused by said animal in the Project. All permissible pets
belonging to Owners, tenants, lessees or guests must be kept
within an enclosed area, or on a leash being held by a person
capable of controlling the animal. The Association, upon the ap-
proval of two-thirds (2/3) of the Board, shall have the right to
prohibit maintenance of any animal within the Project which con-
stitutes a private nuisance to any other person. Every person
bringing an animal upon or keeping an animal in the Project shall
be liable pursuant to the laws of the State of California to each
and all persons for any injury or damage to persons or property
caused by such animal.
Section 7. Quiet Enjoyment. No Owner shall permit or
suffer anything to be done or kept upon such Owner's Condominium
which will obstruct or interfere with the rights of quiet enjoy-
ment of the other occupants, or annoy them by unreasonable noises
or otherwise, nor will any Owner commit or permit any nuisance on
the premises or commit or suffer any immoral or illegal act to be
committed thereon. Each Owner shall comply with all of the re-
quirements of the Board of Health and of all other governmental
authorities with respect to said premises, and shall remove all
rubbish, trash and garbage from his Condominium Unit. All
clotheslines, refuse containers, woodpiles, storage boxes, tools
and equipment shall be prohibited from any Condominium unless
obscured from view by a fence or appropriate screen approved by
the Architectural Control Committee provided for hereinbelow.
Section 8. Structural Changes. There shall be no
structural alteration, modification or construction to the ex-
terior of a Condominium Building, fence or other structure what-
soever in the Project without the prior written approval of the
Board or its designated Architectural Control Committee, as re-
quired herein, except such works of construction by Declarant
during the development of the Project.
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Section 9. Improvements. There shall be no construc-
tion, alteration or removal of any Improvement in the Project
(other than those repairs or rebuilding permitted under the Arti-
cle entitled "Damage or Destruction to the Common Area") without
the approval of the Architectural Control Committee, as set forth
hereinbelow. No Improvement shall be constructed upon any portion
of any Common Property, other than such Improvements as shall be
constructed: (a) by the Declarant (or a person or entity to whom
Declarant assigns its rights as developer), (b) by the Associ-
ation as provided herein, or (c) by an Owner, involving nonstruc-
tural Improvements to his Exclusive Use Common Area, as may be
permitted by the Architectural Control Committee in accordance
with the Article herein entitled "Architectural Control
Approval."
Section 10. Windows. No window in any Condominium Unit
shall be covered in whole or in part, inside or outside, with
aluminum foil, newspaper, paint, tint or any other material rea-
sonably deemed inappropriate for such use by the Architectural
Control Committee; provided, however, an Owner may use plain
white sheets to cover windows for a period not to exceed six (6)
months after the close of escrow pending the installation of
drapes, curtains, shutters or other appropriate interior window
coverings.
Section 11. Commercial Activity. No business, commer-
cial, manufacturing, mercantile, storage, vending or industrial
operations of any kind shall be conducted in or upon any Condo-
minium Unit or the Common Property, except such temporary uses as
shall be permitted by Declarant while the Project is being con-
structed and Condominiums are being sold by the Declarant. Not-
withstanding the foregoing, this Section shall not preclude pro-
fessional administrative occupations without external evidence
thereof, for so long as such occupations are conducted in confor-
mance with all applicable governmental ordinances and merely
incidental to the use of the Condominium Unit as a residence. In
no event, however, shall any Owner or the Association use a Con-
dominium Unit as an office for the rental, resale or leasing of
Condominiums without the prior written consent of Declarant.
Section 12. Parking. All vehicles in the Project shall
be parked in accordance with the following:
(a) All streets, other than the Access Easements,
are subject to the Protective Covenants of this Declaration,
as well as all applicable laws, ordinances and regulations
of all governmental agencies having jurisdiction over the
Project. Any unassigned open parking spaces shall be
available on a first-come, first-served basis to all guests
and visitors.
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(b) Except as may be otherwise expressly per-
mitted by the Association pursuant to duly adopted Rules and
Regulations, parking along the streets in the Project is
prohibited. Notwithstanding the foregoing, temporary on-
street parking for service and delivery vehicles is per-
mitted.
(c) Except as otherwise permitted by the Associa-
tion, as set forth herein, no Owner shall park any vehicle
on any portion of the Project, except wholly within his
assigned parking area in the subterranean parking garage
identified on the Condominium Plan. No parking space may be
sold or assigned to, or retained in the ownership of, any
person not an Owner, and no parking space may be rented or
leased to a non Owner except in connection with the rental
or lease of a Condominium. Without limiting the generality
of the foregoing, no Owner shall park any large commercial
type vehicle or any recreational vehicle (including, but not
limited to, campers, motorhomes, trailers, boat trailers,
mobile homes or other similar vehicles) in his parking area,
nor on any portion of the Project; provided, however, camper
trucks and similar vehicles, up to and including three-
quarter (3/4) ton, may be allowed when used for everyday
transportation, subject to approval by the Board.
(d) Each Owner shall keep his assigned parking
area readily available for parking of his respective
vehicle, and shall not store any goods or materials except
within such assigned storage areas identified on the
Condominium Plan, nor use any portion thereof for a workshop
or other use, if such storage or use would prevent said
Owner from parking the number of vehicles therein for which
said parking area was originally designed and constructed by
Declarant to accommodate.
(e) No Owner shall conduct major repairs to any
motor vehicle of any kind whatsoever in the subterranean
parking garage or upon any portion of the Common Property,
except for emergency repairs thereto and then only to the
extent necessary to enable the vehicle to be moved to a
proper repair facility.
(f) Any Owner having three (3) or more vehicles
registered to such Owner, or to the members of his family,
may apply to the Association for special parking permits to
park vehicles in any unassigned parking areas, subject to
such reasonable Rules and Regulations as may be adopted by
the Board.
Section 13. Regulation of Parking. Subject to the
rights of the Association, through its officers, committees and
agents, the Board is hereby empowered to establish "parking" and
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"no parking" areas within the Common Property, in accordance with
Section 22658.2 of the California Vehicle Code, or any similar
statute hereafter enacted, as well as to enforce these parking
limitations by all means lawful for such enforcement, including,
but not limited to, the levying of fines and the citing and tow-
ing of vehicles. The Board shall have the authority to tow away
and store any vehicle or similar equipment parked in violation of
the above limitations whether the same shall belong to any Owner
or a member of his family or to any tenant, lessee, guest or
invitee of any Owner. Charges for such towing and storing shall
be assessed against the Owner of the Condominium which is respon-
sible for "the violation of such restrictions, and such assessment
may be enforced as a Compliance Assessment.
Section 14. Vehicle Usage in Association Property.
Except where expressly authorized and regulated by the Associa-
tion, no vehicles of any kind shall be operated, maintained,
repaired or otherwise used on, over or across the Association
Property.
Section 15. Compliance With Management Documents. All
Owners shall comply with all of the Protective Covenants as set
forth herein, with the provisions of the Articles and the By-
Laws, and with all Rules and Regulations of the Association.
Section 16. Solar Heating. All Owners shall have the
right to place and maintain equipment and facilities related to
the installation and maintenance of individual solar heating sys-
tems. The installation and maintenance of any solar system by an
individual Owner shall be subject to all applicable zoning regu-
lations, the Uniform Building Code and City associated ordi-
nances, and reasonable review by the Architectural Control Com-
mittee for compliance with the architectural standards adopted by
the Association.
Section 17. Antennas. No Owner shall install, or cause
to be installed, any television, radio, "Citizens Band" (C.B.)
antenna, satellite dish or other similar electronic receiving or
broadcasting device on the exterior of any Condominium Building
or elsewhere within the Common Property.
Section 18. Water Softeners. No Owner shall install
any on-site regenerative water softener within any portion of the
Project.
Section 19. Leasing. No Owner shall be permitted to
rent or lease his Condominium for transient or hotel purposes or
for a period of less than thirty (30) days. No Owner may rent or
lease less than the entire Condominium. All rental and lease
agreements shall be in writing and shall provide that the terms
of such agreement shall be subject in all respects to the provi-
sions of this Declaration, By-Laws, Articles, and Rules and Regu-
lations, and that any failure by the tenant or lessee to comply
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with the terms of such documents shall constitute a default under
such agreement. Other than the foregoing, there are no restric-
tions on the right of an Owner to rent or lease his Condominium.
Section 20. Drilling. No oil drilling, oil development
operations, oil refining, quarrying or mining operations of any
kind shall be permitted upon the Common Property or Exclusive Use
Common Area, nor shall oil wells, tanks, tunnels or mineral exca-
vations be permitted upon the Common Property or Exclusive Use
Common Area. No derrick or other structure designed for use in
boring for oil, water or natural gas shall be erected, maintained
or permitted within the Project.
Section 21. Trash. No rubbish, trash, garbage or other
waste material shall be kept or permitted upon any portion of the
Project, except in sanitary containers located in appropriate
areas improved with trash receptacles, if any, provided for the
use of all Owners. If such common trash receptacles are not pro-
vided, each Owner shall place all rubbish, trash, garbage or
other waste material in garbage cans, garbage bags or other
closed containers approved by the City or other appropriate
agency. All such garbage cans and other containers shall be
stored in an area which is obscured from view from the Common
Property and each Owner shall use his best efforts to assure that
no odor shall arise therefrom so as to be unreasonably offensive
to any adjacent Condominium or other portion of the Project, or
to otherwise be unsanitary, unsightly, offensive or detrimental
to any other residents in the Project.
Section 22. Special Restrictions Regarding Exclusive
Use Common Areas. No patio or balcony area including, without
limitation, the fences, walls or railings enclosing said areas
may be painted, remodeled, or otherwise altered without the prior
written consent of the Architectural Control Committee. Each
Owner shall have the right to furnish such areas with appropriate
outdoor furniture. All furniture, landscaping, potted plants and
Improvements situated therein shall be kept, at all times, in a
neat, clean, safe and attractive condition. Clothes, towels,
blankets, laundry, similar items or clotheslines shall not be
placed on or hung from any patio, balcony or any other portion of
the Common Area or Exclusive Use Common Area, where doing so
would be visible from any other Condominium Unit or the Common
Property.
Section 23. Declarant's Exemption From Use Restric-
tions. Nothing in this Article or elsewhere in this Declaration
shall restrict, abridge or limit in any manner whatsoever,
Declarant's right to complete the planning, development, con-
struction, advertising, marketing, leasing and sales of the Con-
dominiums, and all other property within the Project (including
any property which may be annexed thereto pursuant to the provi-
sions of this Declaration).
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ARTICLE X
REPAIR AND MAINTENANCE
Section 1. Repair and Maintenance by Association.
Without limiting the generality of the Article herein entitled
"Powers and Duties of the Association," and except as otherwise
provided in this Declaration, the Association shall have the duty
to maintain the Common Property in a neat, clean, safe, sanitary,
attractive and orderly condition at all times. Without limiting
the generality, such maintenance shall include, but not be
limited to, painting, maintaining, repairing, restoring, replac-
ing and landscaping (as the case may be) the following:
(a) The exterior surfaces of all Condominium
Buildings in the Project, including the walls, roofs, doors,
the walls, fences and/or railings enclosing the patio,
balcony areas, the exterior stairways, fireplaces,
(excepting the firebox portion of the fireplace located
within the residential element of the Condominium Unit), and
chimneys, any air conditioner or forced air heating unit
pads located outside the Condominium Unit;
(b) Private streets, including the Access
Easements, entry gates, if any, streetscapes, and Project
perimeter fences and walls;
(c) Open parking areas and sidewalks;
(d) Private on-site sewer and drainage fa-
cilities and devices;
•
(e) All recreational amenities, and all
furnishings, equipment and other personal property owned by
the Association;
(f) All Common Property lighting facilities;
(g) Monument signs, if any, located on the
Common Property; and
(h) All other areas, facilities, furnishings
and Improvements of whatever nature as may, from time to
time, be requested by the vote or written consent of three-
fourths (3/4) of the voting power of the Members; and
Except as otherwise provided herein, all costs and expenses for
such maintenance above shall be a Common Expense, and shall be
paid out of the general operating fund of the Association.
Section 2. Repair and Maintenance by Owner. Except as
otherwise provided in Section 1 above regarding the Association's
maintenance obligations, every Owner shall have the duty to per-
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form the following so as to keep his respective Condominium Unit
and Exclusive Use Common Area in a neat, clean, safe, sanitary,
attractive and orderly condition at all times:
(a) Paint, maintain, repair, replace, restore,
decorate and/or landscape (as the case may be) the fol-
lowing:
(1) The interior surfaces of the walls,
ceilings and floors of his Condominium Unit;
(2) All window glass, screens, if any, and
doors (including locks, latches, weatherstripping and
thresholds);
(3) All interior lighting fixtures, all
exterior light bulbs controlled by a switch inside the
Unit and all interior plumbing fixtures, including
bathtubs, shower stalls, toilets and sinks;
(4) All internal and external telephone
wiring designed to serve his Condominium Unit;
(5) All kitchen appliances, forced air heat-
ing units, the air conditioning unit, the hot water
heater and the firebox portion of the fireplace within
his Condominium Unit; and
(6) The respective patio and/or balcony,
excluding those portions maintained by the Association.
(b) As set forth in Article III hereinabove, the
Owner shall, at his sole cost and expense, be responsible
for resurfacing the floor of his balcony with a seal coat
material approved by the Architectural Control Committee. In
no event shall any Owner install, nor shall the Architec-
tural Control Committee approve the installation of artifi-
cial turf on any exterior staircase, landing or on any bal-
cony .
(c) In the event any Owner shall fail to perform
his maintenance obligations as set forth herein, the Associ-
ation shall have the right, but not the duty, to cause such
maintenance to be performed. If the Board elects to cause
such maintenance work to be performed, the cost thereof
shall be assessed against said Owner as a Compliance Assess-
ment.
Section 3. Maintenance of Public Utilities. Nothing
contained herein shall require or obligate the Association to
maintain, replace or restore the underground facilities or public
utilities which are located within easements in the Common Prop-
erty owned by such public utilities. However, the Association
-49-
shall take such steps as are necessary or convenient to ensure
that such facilities are properly maintained, replaced or re-
stored by such public utilities.
ARTICLE XI
ARCHITECTURAL CONTROL - APPROVAL
Section 1. Exemptions From Architectural Control. Ex-
cept as otherwise provided herein, all Improvements shall be sub-
ject to architectural approval by the Association in accordance
with the provisions of this Declaration. Notwithstanding the
foregoing, Declarant shall be exempt from compliance with any of
the provisions of this Article as they may relate to the original
construction and development of the Project by Declarant in ac-
cordance with the plans approved by the City; provided, however,
if Declarant shall desire to construct any Improvements to the
exterior of a Condominium Building after such Condominium Build-
ing has been completed and approved by the City, Declarant shall
obtain approval for such Improvements from the City and, provided
further, if Declarant shall retain a Condominium for personal
use, any Improvements to such Condominium shall be subject to
architectural approval pursuant to this Article.
Section 2. Architectural Control. Except for the pur-
poses of proper maintenance and repair, and except as otherwise
permitted hereunder, no person shall build, construct, erect or
install any Improvement, or modify the exterior appearance of his
Condominium Unit or Exclusive Use Common Area, until all condi-
tions which may be imposed by the City have been satisfied and
until any and all plans and specifications required pursuant to
this Article shall have been submitted to and approved in writing
by the Architectural Control Committee. For the purposes of this
Section, the term "exterior" shall mean any outside wall, outside
surface, roof, outside door, balcony or other outside structure
which is visible to others in the Project and/or to the public.
Section 3. Architectural Control Committee. The
Architectural Control Committee is hereby authorized with the
rights and powers set forth in this Article. Said Committee shall
consist of three (3) members, and each initial member shall serve
until the first election of the Board. The Declarant shall ap-
point all of the original members of the Architectural Control
Committee, and replacements thereto. After one (1) year from the
date of the issuance of the Final Subdivision Public Report for
the Project, the Board shall have the power to appoint one (1)
member to the Architectural Control Committee until ninety per-
cent (90%) of the Condominiums in the Project have been sold, or
until the fifth anniversary date of the original issuance of the
Final Subdivision Public Report for the Project, whichever first
occurs. Thereafter, the Board shall have the power to appoint all
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of the members of the Architectural Control Committee. All mem-
bers appointed to the Architectural Control Committee by the
Board shall be from the membership of the Association. Members
appointed to the Architectural Control Committee by the Declar-
ant, however, need not be members of the Association. In the
event of the failure or inability of any member of the Architec-
tural Control Committee to act, the remaining members shall des-
ignate a successor who shall serve for the remainder of the term
of the member he replaces. No member of the Architectural Control
Committee shall be liable to any person for his decisions or
failure to act in making decisions as a member of the Architec-
tural Control Committee. Declarant may, in its discretion and at
any time, assign to the Association by written assignment its
powers of removal and appointment with respect to the Architec-
tural Control Committee, subject to such terms and conditions
regarding the exercise thereof as Declarant may impose.
Section 4. Meetings of the Architectural Control Com-
mittee. The Architectural Control Committee shall meet, from time
to time, as necessary to perform its duties hereunder. The Archi-
tectural Control Committee may, by a majority vote of the members
thereof and the Board, delegate any of the Committee's rights and
responsibilities hereunder to one (1) or more duly licensed
architects, who shall have full authority to act on behalf of the
Architectural Control Committee on all matters so delegated.
Section 5. Architectural Approval - Review of Plans
and Specifications. The Architectural Control Committee shall
have the right and duty to promulgate reasonable standards
against which to examine any request made pursuant to this Arti-
cle, in order to ensure that the proposed plans are in confor-
mance with and are harmonious to the exterior design and existing
materials of the Condominium Buildings in the Project. The Archi-
tectural Control Committee shall consider and act upon any and
all plans and specifications submitted for its approval under
this Declaration, and perform such other duties as, from time to
time, shall be assigned to it by the Board, including the inspec-
tion of construction and progress to ensure its conformance with
the plans approved by the Architectural Control Committee. No
construction, alteration, grading, addition, excavation, modifi-
cation, decoration, redecoration or reconstruction of an Improve-
ment shall be commenced or maintained by any Owner until the
plans and specifications therefor showing the nature, kind,
shape, height, width, color, materials and location of the same
shall have been submitted to the Architectural Control Committee
and approved in writing by the Architectural Control Committee.
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The initial address for submission of such plans and specifica-
tions, until changed by the Architectural Control Committee,
shall be:
Architectural Control Committee
The Architectural Control Committee shall approve the plans and
specifications submitted for its approval only if it deems that:
(a) the construction, alterations or additions contemplated
thereby and the locations indicated will not be detrimental to
the appearance of the surrounding area of the Project as a whole;
(b) the appearance of any structure affected thereby will be in
harmony with surrounding structures; (c) the construction thereof
will not detract from the beauty, wholesomeness and attractive-
ness of the Common Property, or the enjoyment thereof by the Own-
ers; and (d) the upkeep and maintenance thereof will not become a
burden on the Association. The Architectural Control Committee
may condition its approval of proposals or plans and specifica-
tions for any Improvement: (a) on such changes therein as it
deems appropriate, (b) upon the agreement by the person submit-
ting the same to grant appropriate easements to the Association
for the maintenance of the Improvement, or (c) upon the agreement
of the person submitting the same to reimburse the Association
for the cost of such maintenance, or all of the above, and may
require submission of additional plans and specifications or oth-
er information prior to approving or disapproving the submission.
The Architectural Control Committee may also issue
rules or guidelines setting forth procedures for submission of
plans for approval, requiring a payment of a fee to the Associa-
tion to accompany each submission of plans and specifications, or
additional factors which it will take into consideration in re-
viewing submissions.
The Architectural Control Committee may require such
detail in plans and specifications submitted for its review as it
deems proper, including, without limitation, floor plans, site
plans, drainage plans, elevation drawings, landscape plans and
description or samples of exterior material and colors.
Section 6. Decisions of the Architectural Control
Committee. Until receipt by the Architectural Control Committee
of any required plans and specifications, and such other informa-
tion as may be required in Section 5 above, the Architectural
Control Committee may postpone review of any plans submitted for
approval. Decisions of the Architectural Control Committee and
the reasons therefor should be transmitted by the Architectural
Control Committee to the applicant, at the address set forth in
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the application for approval, within forty-five (45) days after
receipt by the Architectural Control Committee of all plans, spe-
cifications and materials required. Any application submitted
pursuant to the provisions of Section 5 above shall be deemed
approved, unless written disapproval or a request for additional
information or materials by the Architectural Control Committee
shall have been transmitted to the applicant within forty-five
(45) days after the receipt by the Architectural Control Commit-
tee of all required materials.
Section 7. No Waiver of Future Approvals. The approv-
al of the Architectural Control Committee to any submissions for
any work done, or proposed to be done, or in connection with any
other matter requiring the approval or consent of the Architec-
tural Control Committee, shall not be deemed to constitute a
waiver of any right to withhold approval or consent of any simi-
lar proposals, plans and specifications, drawings or other mat-
ters subsequently or additionally submitted for approval.
Section 8. Compensation of Members. The members of
the Architectural Control Committee shall receive no compensation
for services rendered, other than reimbursement by the Associ-
ation, pursuant to Board approval, for expenses incurred in the
performance of such members' duties hereunder.
Section 9. Variances. Where circumstances such as to-
pography, location of buildings, location of landscaping or other
matters require, the Architectural Control Committee, by the vote
or written assent of a majority of the members thereof and the
Board, may allow reasonable variances as to any of the Covenants
contained in this Declaration or provisions under the rules and
regulations promulgated by the Architectural Control Committee,
on such terms and conditions as it shall require. 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 Condominium and particular provision hereof covered by
the variance, nor shall it affect in any way the Owner's obliga-
tion to comply with all governmental laws and regulations affect-
ing the Owner's use of his Condominium, including, but not lim-
ited to, zoning ordinances, lot setback lines or requirements
imposed by the City or other governmental authority.
Section 10. Inspection of Work. Upon consent of the
Owner, which consent shall not be unreasonably withheld, any mem-
ber or authorized representative of the Architectural Control
Committee may, at any reasonable hour and upon reasonable notice,
enter and inspect any Condominium which has been the subject mat-
ter of an approval of a submission for an Improvement to his Con-
dominium. Such entry shall be made with as little inconvenience
to the Owner as reasonably possible, and any damage caused there-
by shall be repaired by the Association. If the Architectural
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Control Committee finds that such work was not done in substan-
tial compliance with the approved plans and specifications, it
shall notify the Owner in writing of such noncompliance, specify-
ing the particulars of noncompliance and shall require the Owner
to remedy the same within thirty (30) days from the date of noti-
fication of such noncompliance. If a noncompliance exists, the
Board, after Notice and Hearing, may.levy a Compliance Assessment
against such Owner for the costs of removing or remedying such
noncompliance.
Section 11. Non-Liability of Architectural Control
Committee Members. Neither Declarant, the Association, the Board
or the Architectural Control Committee, or the members or desig-
nated representatives thereof, shall be liable for damages to any
Owner submitting plans or specifications to them for approval, or
to any Owner in the Project affected by this Declaration by rea-
son of mistake in judgment, negligence or nonfeasance, unless due
to willful misconduct or bad faith of the Architectural Control
Committee. The Architectural Control Committee's approval or dis-
approval of a submission shall be based solely on the considera-
tions set forth in this Article, and in such rules and regula-
tions as may be promulgated by the Architectural Control Commit-
tee, and the Architectural Control Committee shall not be respon-
sible for reviewing, nor shall its approval of any plan or design
be deemed approval of, any plans or design from the standpoint of
structural safety and conformance with building or other codes.
Section 12. Appeal. In the event plans and specifica-
tions submitted to the Architectural Control Committee are disap-
proved, the party making such submission may appeal in writing to
the Board. The written request must be received by the Board not
more than thirty (30) days following the final decision of the
Architectural Control Committee. The Board shall submit such re-
quest to the Architectural Control Committee for review, and the
written recommendations of the Architectural Control Committee
will be submitted to the Board. Within forty-five (45) days fol-
lowing receipt of the request for appeal, the Board shall render
its written decision. The failure by the Board to render a deci-
sion within said forty-five (45) day period shall be deemed a
decision in favor of the party making such submission.
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ARTICLE XII
DAMAGE OR DESTRUCTION TO
THE COMMON AREA
Section 1. Restoration of Damaged Common Area. Except
as otherwise provided in Section 2 hereinbelow, damage to or de-
struction of all or any portion of the Common Area shall be han-
dled in the following manner:
(a) In the event of damage to or destruction of
the Common Area, and the insurance proceeds are sufficient
to effect total restoration, the Association shall, as
promptly as is practical, cause the Common Area to be re-
paired and reconstructed in a good workmanlike manner to its
condition prior to such damage or destruction.
(b) If the insurance proceeds available are at
least ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Common Area, the Associa-
tion shall, as promptly as practical, cause such Common Area
to be repaired and reconstructed in a good workmanlike man-
ner to its condition prior to the damage or destruction, and
the difference between the insurance proceeds and the actual
cost shall be levied by the Association as a Special Assess-
ment against each of the Owners and their Condominiums,
based on the ratio of the square footage of the floor areas
of all Condominiums to be assessed.
(c) If the insurance proceeds available are less
than ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Common Area, the Owners
shall, by the written consent or vote of a'majority of the
Owners, determine whether: (1) to restore the Common Area as
promptly as practical to its condition prior to the damage
or destruction, and to raise the necessary funds over and
above the insurance proceeds available by levying Assess-
ments against each of the Condominiums on an equal basis; or
(2) to restore the Common Area in a way which utilizes all
available proceeds and an additional amount not in excess of
ten percent (10%) of the estimated cost of total reconstruc-
tion and repair to the Common Area, and which is assessable
as provided above to all Condominiums, but which is less
expensive than restoring the Common Area to its condition
prior to the damage or destruction.
Section 2. Election by Owners Not to Restore Damaged
Common Area.
(a) Notwithstanding the provisions set forth in
Section 1 hereinabove, in the event sixty-seven percent
(67%) of the Owners, other than Declarant, and sixty-seven
percent (67%) of the first Mortgagees (based upon one [1]
vote for each first Mortgage owned) have given their prior
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written approval, the Owners may elect not to rebuild or
restore the Common Area and to disburse the available insur-
ance proceeds to the general fund of the Association.
(b) In the event the Owners shall have so voted
not to rebuild the Common Area, the Common Area shall be
cleared and landscaped and the cost thereof shall be paid
for out of the available insurance proceeds prior to their
distribution to the general fund of the Association.
(c) In the event the Owners shall have so voted
not to rebuild the Common Area, unless the City shall agree
to the contrary, it shall be the obligation of the Associa-
tion and each of the Owners to rebuild the private streets,
if any, utilities and open spaces, at least to the extent
said streets, utilities and open spaces were accepted ini-
tially by the City, if at all, in lieu of payment of fees
due pursuant to law.
Section 3. Restoration of Damaged Condominium Units.
Restoration and repair of any damage to the interior of any indi-
vidual Condominium Unit, including, without limitation, all inte-
rior walls, lighting fixtures, plumbing fixtures, cabinets, fur-
niture and improvements therein, together with restoration and
repair of all interior paint, wall coverings and floor coverings,
shall be made by and at the individual expense of the Owner of
the Condominium Unit so damaged. In the event of a determination
to rebuild the adjoining portion of the Common Area also damaged
or destroyed, such interior repair and restoration shall be com-
pleted as promptly as practicable in a lawful and workmanlike
manner, and in accordance with the plans approved by the Board or
its designated Architectural Control Committee, as provided for
in this Declaration.
Section 4. Architectural Approval of Restoration
Plans; Design and Variance. In connection with the restoration
and repair of any damage to the interior of any individual Condo-
minium Unit, the Owner thereof may apply for approval to the
Architectural Control Committee for reconstruction, rebuilding or
repair of his Condominium Unit in a manner which will provide for
an exterior appearance and design different from that which ex-
isted prior to the date of the casualty. Application for such
approval shall be made in writing, together with full and com-
plete plans and specifications, working drawings and elevations
showing the proposed reconstructions and the end result thereof.
The Architectural Control Committee shall grant such approval
only if the design proposed by the Owner would result in a fin-
ished Condominium Unit in harmony of exterior design with the
other Condominium Units in the Project. Failure of the Architec-
tural Control Committee to act within thirty (30) days after re-
ceipt of such a request in writing, coupled with the drawings and
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plot plans showing full and complete nature of the proposed
change, shall constitute approval thereof; provided, however,
that no such approval described herein shall be granted without
the prior written consent of all Owners of Condominium Units
within the particular Condominium Building wherein the subject
Condominium Unit is located.
Section 5. Distribution of Excess Insurance Proceeds.
In the event any excess insurance proceeds remain after the re-
construction or clearance of the damaged or destroyed Common Area
by the Association, pursuant to this Article, the Board, in its
sole discretion, may retain such sums in the general fund of the
Association or distribute such excess insurance proceeds to all
Owners, subject to the prior rights of Mortgagees whose interests
may be protected by the insurance policies carried by the Associ-
ation. In the absence of any such rights, the rights of an Owner
and the Mortgagee of his Condominium Unit as to each such distri-
bution shall be governed by the provisions of the Mortgage encum-
bering said Condominium Unit.
Section 6. Special Assessments for Restoration Pur-
poses. All amounts collected pursuant to Special Assessments, as
provided for herein, shall only be used for the purposes set
forth in this Article, and shall be deposited by the Board in a
separate bank account to be held in trust for such purposes.
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ARTICLE XIII
DAMAGE OR DESTRUCTION TO
THE ASSOCIATION PROPERTY
Section 1. Election to Restore Association Property.
Except as otherwise provided in Section 2 hereinbelow, damage to
or destruction of all or any portion of the Association Property
shall be handled in the following manner:
(a) In the event of damage to or destruction of
the Association Property and the insurance proceeds are
sufficient to effect total restoration, the Association
shall, as promptly as is practical, cause the Association
Property to be repaired and reconstructed in a good workman-
like manner to its condition prior to such damage or de-
struction.
(b) If the insurance proceeds available are at
least ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Association Property, the
Association shall, as promptly as practical, cause such
Association Property to be repaired and reconstructed in a
good workmanlike manner to its condition prior to the damage
or destruction, and the difference between the insurance
proceeds and the actual cost shall be levied by the Associa-
tion as a Special Assessment against each Condominium on an
equal basis.
(c) If the insurance proceeds available are less
than ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Association Property, the
Owners shall, by the written consent or vote of a majority
of the Owners, determine whether (1) to restore the Associa-
tion Property as promptly as practical to its condition
prior to the damage or destruction, and to raise the neces-
sary funds over and above the insurance proceeds available
by levying assessments against each Condominium on an equal
basis; or (2) to restore the Association Property in a way
which utilizes all available proceeds and an additional
amount not in excess of ten percent (10%) of the estimated
cost of total reconstruction and repair to the Association
Property, and which is assessable as provided above to all
Condominiums, but which is less expensive than restoring the
Association Property to its condition prior to the damage or
destruction.
Section 2. Election Not to Restore Association
Property.
(a) Notwithstanding the provisions set forth in
Section 1 hereinabove, in the event sixty-seven percent
(67%) of the Owners, other than the Declarant, and sixty-
seven percent (67%) of the first Mortgagees (based upon one
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[1] vote for each first Mortgage owned) have given their
prior written approval, the Owners may elect to not rebuild
or restore the Association Property and to disburse the
available insurance proceeds to the general fund to the
Association.
(b) In the event the owners shall have so voted
to not rebuild the Association Property, the Association
Property shall be cleared and landscaped and the cost there-
of shall be paid for out of the available insurance proceeds
prior to their distribution to the general fund of the As-
sociation.
(c) In the event the Owners shall have so voted
to not rebuild the Association Property, unless the City
shall agree to the contrary, it shall be the obligation of
the Association and each of the Owners to rebuild the pri-
vate streets, if any, utilities and open spaces, which
comprise the Association Property, if any, at least to the
extent said streets, utilities and open spaces were accepted
initially by the City in lieu of payment of fees due pur-
suant to law.
Section 3. Excess Insurance Proceeds. In the event
any excess insurance proceeds remain after restoring the de-
stroyed Association Property pursuant to this Article, the Board
of Directors shall retain such sums in the general fund of the
Association.
ARTICLE XIV
CONDEMNATION
Section 1. Distribution of Awards. Subject to the
limitations set forth in the Article herein entitled "Mortgagee
Protection," a condemnation award affecting all or any portion of
the Common Property of the Project which is not apportioned among
the Owners by court judgment, or by agreement between the con-
demning authority and each of the affected Owners in the Project,
shall be distributed among the affected Owners (and their respec-
tive Mortgagees) based upon the relative fair market values of
all Condominiums prior to the award, as determined by an indepen-
dent, qualified, professional real estate appraiser. All first
Mortgagees shall have the right to participate in any condemna-
tion proceedings.
Section 2. Distribution of Awards - Association Prop-
erty. A condemnation award affecting all or any portion of the
Association Property shall be remitted to the general fund of the
Association.
Section 3. Board of Directors as Attorney-in-Fact.
All Owners hereby appoint the Board of the Association as their
special attorney-in-fact to handle the negotiations, settlements
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and agreements pertaining to any condemnation affecting only the
Common Property. The special power of attorney shall not apply to
the Secretary of the Department of Veterans Affairs, an Officer
of the United States of America.
ARTICLE XV
COVENANT AGAINST PARTITION
Section 1. General Covenant Against Partition. Except
as otherwise provided in this Section, the Common Area shall re-
main undivided and there shall be no judicial partitions thereof.
Nothing herein shall be deemed to prevent partition of a co-
tenancy in a Condominium.
Section 2. Judicial Partition of the Project. The
Owner of a Condominium in the Project may maintain a partition
action as to the entire Project as if the Owners of all the Con-
dominiums in the Project were tenants-in-common in the entire
Project in the same proportion as their interests in the Common
Area. The court shall order partition under this Article only by
sale of the entire Project and only upon the showing of one (1)
of the following:
(a) More than three (3) years before the filing
of the action, the Project was damaged or destroyed so that
a material part was rendered unfit for its prior use, and
the Project has not been rebuilt or repaired substantially
to its state prior to the damage or destruction;
(b) Three-fourths (3/4) or more of the Project is
destroyed or substantially damaged, and at least sixty-seven
percent (67%) of the Owners (other than Declarant) and
sixty-seven percent (67%) of the first Mortgagees (based
upon one [I] vote for each first Mortgage owned) oppose re-
pair or restoration of the Project; or
(c) The Project has been in existence more than
fifty (50) years, is obsolete and uneconomical, and at least
sixty-seven percent (67%) of the Owners (other than Declar-
ant) and sixty-seven percent (67%) of the first Mortgagees
(based upon one [1] vote for each first Mortgage owned) op-
pose repair or restoration of the Project.
Section 3. Board of Directors' Power of Sale in Event
of Judicial Partition. Declarant, for itself and on behalf of
each and every present and subsequent Owner of one (1) or more
Condominiums within the Project, hereby appoints the Board as its
and their attorney-in-fact to sell the entire Project for the
benefit of all of the Owners thereof when partition of the Pro-
ject may be had pursuant to this Declaration, which power shall:
(a) be binding upon all of the Owners, whether they assume the
obligations of these restrictions or not; (b) be exercisable by a
vote of at least seventy-five percent (75%) of the voting power
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of the Board; and (c) be exercisable only after recordation of a
certificate by the Board, which shall provide that said power is
properly exercisable hereunder, and which certificate shall be
conclusive evidence thereof in favor of any person relying there-
on in good faith; provided, however, said power of attorney shall
not apply to the Secretary of the Department of Veterans Affairs,
an Officer of the United States of America.
ARTICLE XVI
INSURANCE
Section 1. Required Insurance Coverage. The Associa-
tion, acting by and through the Board, shall obtain for the Asso-
ciation, and shall maintain and pay the premiums for the follow-
ing insurance coverages:
(a) Casualty and Fire Insurance. A policy or pol-
icies of casualty and fire insurance, with extended coverage
endorsement in an amount equal to one hundred percent (100%)
of the current replacement cost (without deduction for de-
preciation or co-insurance) of the entire Project, together
with all Improvements located therein. Said policies shall
be maintained for the benefit of the Association, the Owners
and the Mortgagees, as their interests shall appear. The
coverage does not need to include land, foundations, excava-
tions or other items normally excluded from such coverage.
Such policy or policies must contain, if required and if ob-
tainable: (1) an Agreed Amount and Inflation Guard Endorse-
ment; (2) Construction Code Endorsements (such as Demolition
Cost Endorsement); (3) a Contingent Liability From Operation
of Building Laws Endorsement; (4) an Increased Cost of Con-
struction Endorsement, if there is a construction code pro-
vision which would become operative and require changes to
undamaged portions of the buildings within the Common Area;
and (5) any other Special Condominium Endorsements that may
be available or required.
(b) Public Liability Insurance. A policy or poli-
cies of full coverage public liability insurance (with
cross-liability endorsement, if obtainable) insuring the
Association, the Board, the Owners, the City and the Declar-
ant, and the agents and employees of each of the foregoing,
against any liability to the public or to any Owner, his
family, invitees and/or tenants, arising from or incident to
the ownership, occupation, use, maintenance and/or repair of
the Common Property and Condominium Units, and from lawsuits
related to employment contracts in which the Association is
a party. The limits of liability under this Section shall be
set by the Board and shall be reviewed at least annually by
the Board, and increased or decreased at the discretion of
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the Board; provided, however, that said limits shall not be
less than One Million Dollars ($1,000,000.00) for bodily
injury, including deaths of persons and property damage
arising out of a single occurrence; provided further, if the
Federal Home Loan Mortgage Corporation (FHLMC) and/or the
Federal National Mortgage Association (FNMA) participate in
the financing of Condominiums in the Project, said limits
shall not be less than the minimum limits required under the
then current FHLMC and/or FNMA regulations.
(c) Worker's Compensation Insurance. Worker's
compensation insurance to the extent necessary to comply
with any applicable laws.
(d) Fidelity Bonds. Officers' and Directors' er-
rors and omissions insurance, and fidelity bonds naming all
persons signing checks or otherwise possessing fiscal re-
sponsibilities on behalf of the Association, including, but
not limited to, officers, Directors, trustees and employees
of the Association, and officers, employees and agents of
any management company employed by the Association who han-
dle or are responsible for the Association funds. Such cov-
erage shall be in an amount deemed reasonably appropriate by
the Association, but shall not be less than the estimated
maximum funds in custody of the Association, or twenty-five
percent (25%) of the estimated annual operating expenses of
the Project, whichever is greater. In addition, if the Asso-
ciation enters into an agreement for professional management
of the Project, the Association shall require such firm to
submit evidence of such firm's fidelity bond coverage to the
same extent as the Association's coverage.
Section 2. Optional Insurance Coverage. The Associa-
tion, acting at its option and by and through the Board, may pur-
chase such other insurance as it may deem necessary or appropri-
ate, including, but not limited to, earthquake insurance, flood
insurance and plate glass insurance.
Section 3. Notice of Cancellation of Insurance. All
policies of insurance (including fidelity bonds) maintained by
the Association, pursuant to this Article, shall contain a provi-
sion that coverage under said policies may not be cancelled, ter-
minated, allowed to expire by their own terms or be substantially
modified by any party without at least thirty (30) days prior
written notice to the Board and to such Owners and such first
Mortgagees who have filed written requests with the Association
for such notice. A list of such Owners and such first Mortgagees
shall be made available by the Association to the insurance car-
rier upon request.
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Section 4. Review of Coverage. The Board shall an-
nually determine whether the amounts and types of insurance cov-
erage that it has obtained pursuant to this Article shall provide
adequate coverage for the Project, based upon the then current
construction costs, insurance practices in the area in which the
Project is located, and all other factors which may indicate that
either additional insurance coverage or increased coverage under
existing policies is necessary or desirable to protect the inter-
ests of the Association, the Owners and their respective Mortga-
gees. If the Board determines that increased coverage or addi-
tional insurance is appropriate, it shall obtain same.
Section 5. Waiver by Owners. As to all policies of
insurance maintained by the Association which will not be voided
or impaired thereby, each Owner hereby waives and releases all
claims against the Association, the Board and the Declarant, and
the agents and employees of each of the foregoing, and all other
Owners with respect to any loss covered by such insurance, whe-
ther or not caused by the negligence of, or breach of, any agree-
ment by said persons, but only to the extent of the insurance
proceeds received in compensation for such loss.
Section 6. Premiums, Proceeds and Settlement. Insur-
ance premiums for all blanket insurance coverage and any other
insurance coverage which the Board has determined is necessary to
protect the interests of the Association, the Owners and their
respective Mortgagees, shall be a Common Expense to be included
in the Regular Assessments levied by the Association. All insur-
ance proceeds paid to the Association shall be disbursed as fol-
lows: (a) in the event of any damage or destruction to the Common
Area, such proceeds shall be disbursed in accordance with thei
provisions of the Article herein entitled "Damage or Destruction
to the Common Area"; (b) in the event of any damage or destruc-
tion to the Association Property, such proceeds shall be dis-
bursed in accordance with the provisions of the Article herein
entitled "Damage or Destruction to the Association Property"; and
(c) in the event of any other loss, the proceeds shall be dis-
bursed as the Board shall deem appropriate, subject to the limi-
tations set forth in the Article herein entitled "Mortgagee Pro-
tection." The Association is hereby granted the authority to ne-
gotiate loss settlements with the appropriate insurance carriers.
A majority of the Board must sign a loss claim form and release
form in connection with the settlement of a loss claim, and such
signatures shall be binding on the Association and its Members.
Section 7. Rights and Duties of Owners to Insure.
Each Owner may obtain insurance on his personal property and on
all other property and improvements within his Condominium Unit.
Nothing herein shall preclude any Owner from carrying any public
liability insurance as he may deem desirable to cover his indi-
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vidual liability for damage to person or property occurring in-
side his individual Condominium Unit or elsewhere upon the Proj-
ect. If obtainable, such liability insurance coverage carried by
an Owner shall contain a waiver of subrogation of claims against
the Declarant, the Association and the Board, and their agents
and employees, and all other Owners. Such other policies shall
not adversely affect or diminish any liability under insurance
obtained by the Association. If any loss intended to be covered
by insurance carried by the Association shall occur and the pro-
ceeds payable thereunder shall be reduced by reason of insurance
carried by any Owner, such Owner shall assign the proceeds of
such insurance carried by him to the Association to the extent of
such reduction for application by the Board to the same purposes
as the reduced proceeds are to be applied.
Section 8. Trustee for Policies. The Association is
hereby appointed and shall be deemed trustee for the interests of
all insureds under the policies of insurance maintained by the
Association. All insurance proceeds under such policies shall be
paid to the Board, as trustees, and the Board shall have full
power to receive such funds on behalf of the Association, the
Owners and their respective Mortgagees, and to deal therewith as
provided for in this Declaration.
Section 9. Mortgage Clause. All insurance policies
should have the "standard mortgage clause," or equivalent en-
dorsement, providing that coverage of a Mortgagee under the in-
surance policy will not be adversely affected or diminished by an
act or neglect of the Mortgagor, which is commonly accepted by
private institutional mortgage investors in the area in which the
Project is located, unless such coverage is prohibited by ap-
plicable law. Mortgages owned by FNMA must name as a Mortgagee
either FNMA or the servicers for the Mortgages held by FNMA en-
cumbering the Condominiums. When a servicer is named as the Mort-
gagee, its name should be followed by the phrase "its successors
and assigns." If the Mortgage is owned in whole by FHLMC, the
name of the servicer of the Mortgage followed by the phrase "its
successors and assigns, beneficiary" should be named as Mortgagee
instead of FHLMC. The mortgage clause should be endorsed to fully
protect FHLMC's interests or the interest of FHLMC and the ser-
vicer where applicable. If FHLMC must be named as Mortgagee, the
endorsement should show the servicer's address in lieu of FHLMC's
address. A mortgage clause in favor of Mortgagees holding Mort-
gages on Condominiums is not required on a policy insuring the
Association Property.
Section 10. Compliance With Requirements of FHLMC and
FNMA. Notwithstanding the provisions of this Article, the
Association shall obtain and maintain in effect such policies of
insurance meeting all requirements of FHLMC and FNMA established
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by those entities for condominium projects for so long as any of
such agencies continue to be a Mortgagee, Owner, insurer or
guarantor of a Mortgage in the Project, except to the extent such
coverage is not available or has been waived, in writing, by such
agencies.
ARTICLE XVII
MORTGAGEE PROTECTION
Section 1. Mortgagee Protection Provisions. Notwith-
standing any other provisions in this Declaration to the con-
trary, in order to induce the Federal Home Loan Mortgage Corpora-
tion (FHLMC) and the Federal National Mortgage Association
(FNMA), and other lenders and investors, to participate in the
financing of the sale of Condominiums in the Project, the follow-
ing provisions contained within this Article are added hereto,
and to the extent these added provisions conflict with any other
provisions in this Declaration, these added provisions shall con-
trol. The Declaration, the Articles and the By-Laws for the Asso-
ciation are hereinafter collectively referred to in this Article
as the "constituent documents."
(a) The right of an Owner to sell, transfer or
otherwise convey his Condominium shall not be subject to any
right of first refusal or any similar restriction in favor
of the Association.
(b) The lien of the Assessments provided for
herein shall be subordinate to the lien of any first Mort-
gage now or hereafter recorded upon any Condominium. The
sale or transfer of any Condominium shall not affect the
Assessment lien; however, the sale or transfer of any Condo-
minium pursuant to judicial or nonjudicial foreclosure of a
first Mortgage or pursuant to any remedies provided for in
the Mortgage shall extinguish the lien of such Assessments
as to payments which became due prior thereto. No sale or
transfer shall relieve such Condominium from liability for
Assessments due thereafter. Any first Mortgagee who obtains
title to a Condominium pursuant to the remedies provided in
the Mortgage, or foreclosure of the Mortgage, or any pur-
chaser at a foreclosure sale of a first Mortgage will not be
liable for any unpaid Assessments or charges which occurred
prior to the acquisition of title to such Condominium by the
Mortgagee (except for claims for a share of such Assessments
or charges resulting from a reallocation of such Assessments
or charges to all Condominiums, including the mortgaged
Condominium).
(c) Except as provided by statute in case of con-
demnation or substantial loss to the Condominium Units
and/or Common Property, unless sixty-seven percent (67%) of
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the, Owners other than Declarant, and sixty-seven percent
(67%) of the first Mortgagees (based upon one [1] vote for
each first Mortgage owned) have given their prior written
approval, neither the Association nor the Owners shall be
entitled to:
(1) By act or omission, seek to abandon or
terminate the Condominium Project;
(2) Record or file any amendment which would
change the pro rata interest or obligations of ^any Con-
dominium for purposes of: (i) levying Assessments or
charges, or allocating distributions of hazard insur-
ance proceeds or condemnation awards, or (ii) determin-
ing the pro rata share of ownership of each Condominium
Unit in the Common Area;
(3) Partition or subdivide any Condominium,
except as provided in the Article herein entitled
"Covenant Against Partition"; provided, however, that
no Condominium may be partitioned or subdivided without
the prior written approval of the first Mortgagee for
such Condominium;
(4) By act or omission seek to abandon, par-
tition, subdivide, encumber, sell or transfer any or
all of the Common Property. The granting of easements
for public utilities or for other public purposes con-
sistent with the intended uses of the Common Property
by the Project shall not be deemed a transfer within
the meaning of this clause;
(5) Use hazard insurance proceeds for losses
to the Project (whether to Condominium Units or to Com-
mon Property) for other than repair, replacement or
reconstruction;
(6) Effect any decision of the Association
to terminate professional management and assume self-
management of the Project, where such professional man-
agement was previously a requirement by a holder, in-
surer or guarantor of any first Mortgage;
(7) By act or omission, change, waive or
abandon any provisions of this Declaration, or enforce-
ment thereof, pertaining to architectural design of the
Condominiums or the maintenance and operation of the
Common Property within the Project, including, without
limitation, sidewalks, fences, driveways and landscap-
ing within the Project; and
(8) Fail to maintain fire and extended cov-
erage on the insurable Common Property on a current re-
placement cost basis in an amount not less than one
hundred percent (100%) of the insurable value thereof.
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(d) All taxes, Assessments and charges which may
become liens prior to the first Mortgage under local law
shall relate only to individual Condominiums, and not to the
Project as a whole.
(e) No provision of the constituent documents
shall be interpreted to give the Owner of a Condominium, or
any other party, priority over any rights of the first Mort-
gagee of the Condominium pursuant to its Mortgage in the
case of a distribution to such Owner of insurance proceeds
or condemnation awards for losses to or a taking of the Con-
dominium Units and/or the Common Property.
(f) The Assessments provided for in the constitu-
ent .documents shall include an adequate reserve fund for
maintenance, repairs and replacement of those elements of
the Common Property that must be replaced on a periodic
basis, and shall be payable in regular installments, rather
than by Special Assessments.
(g) Each holder, insurer or guarantor of a first
Mortgage who has filed with the Association a written re-
quest for notice shall be entitled to timely written notice
of: (1) any condemnation or eminent domain proceeding, and
any loss or taking resulting from such proceeding which af-
fects the Project, or any portion thereof; (2) any substan-
tial damage or destruction to the Project, or any portion
thereof, when such loss exceeds Ten Thousand Dollars
($10,000.00); (3) any default in the performance by an indi-
vidual Owner of any obligation under the constituent docu-
ments which is not cured within sixty (60) days after the
Association learns of such default; (4) any lapse, cancella-
tion or material modification of any insurance policy or
fidelity bond maintained by the Association; (5) any aban-
donment or termination of the Project; and (6) any proposed
action that requires the consent of a specified percentage
of eligible Mortgagees.
(h) Any agreement for professional management of
the Project or any contract providing for services of the
Declarant may not exceed one (1) year, renewable by agree-
ment of the parties for successive one (1) year periods. Any
such agreement must provide for termination by either party
without cause and without payment of a termination fee on
maximum of ninety (90) days' written notice.
(i) In the event of substantial damage to or des-
truction of any Condominium Unit or any part of the Common
Property, the first Mortgagee for such Condominium will be
entitled to timely written notice of any such damage or de-
struction.
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(j) A first Mortgagee of a Condominium in the
Project will, upon request, be entitled to: (1) examine the
books and records of the Association during normal business
hours; (2) require from the Association an annual audited
financial statement of the Project for the previous fiscal
year (without expense to the holder, insurer or guarantor
requesting said statement), however, if an audited financial
statement is not available, any Mortgage holder may be
allowed to have an audited financial statement prepared, at
its own expense; and (3) receive written notice of all meet-
ings of the Association and be permitted to designate a rep-
resentative to attend all such meetings.
(k) Each Owner shall notify the Association, in
writing, within ten (10) days after the close of escrow for
the purchase of his Condominium of the name and address of
his first Mortgagee, and thereafter, each Owner shall promp-
tly notify the Association of any changes of name or address
for his first Mortgagee.
(1) Each Owner hereby authorizes a first Mort-
gagee on a Condominium to furnish information to the Board
concerning the status of any such first Mortgage.
(m) In the event any portion of the Common Prop-
erty encroaches upon any Condominium Unit or any Condominium
Unit encroaches upon the Common Property as a result of the
construction, reconstruction, repair, shifting, settlement
or movement of any portion of the Project, a valid easement
for the encroachment and for the maintenance of the same
shall exist so long as the encroachment exists.
(n) First Mortgagees of Condominium Units may,
jointly or singularly, pay taxes or other charges which are
in default and which may have become a lien on the Common
Property, and may pay overdue premiums on hazard insurance
policies or secured new hazard insurance coverage on the
lapse of a policy for the Common Property, and first Mort-
gagees paying such payments shall be owed immediate reim-
bursement therefor from the Association. Upon demand by any
first Mortgagee, the Board shall execute, on behalf of the
Association, an agreement establishing the right of all
first Mortgagees to such reimbursement.
Section 2. Violation of Mortgagee Protection Provi-
sions. No breach of any of the foregoing covenants shall cause
any forfeiture of title or reversion, or bestow any right of re-
entry whatsoever, but in the event that any one (1) or more of
these covenants shall be violated, the Declarant, its successors
and assigns, or the Association, or any Owner of a Condominium in
the Project, may commence a legal action in any court of compe-
tent jurisdiction to enjoin or abate said violation and/or to
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recover damages; provided, however, that any such violation shall
not defeat or render invalid the lien of any Mortgage made in
good faith and for value as to said Condominium. Said covenants
shall be binding upon and effective against any Owner of said
Condominium, or a portion thereof, whose title thereto is ac-
quired by foreclosure, a trustee sale or otherwise.
Section 3. Effect of Amendments. Except as may other-
wise be provided herein, no amendment of this Declaration or the
Articles or the By-Laws of the Association shall affect the
rights of any Mortgagee whose lien was created prior to recorda-
tion of such amendment.
Section 4. Amendments to Conform With Mortgagee Re-
quirements. It is the intent of Declarant that this Declaration
and the Articles and By-Laws of the Association, and the Project
in general, meet all requirements necessary to purchase, guaran-
tee, insure and subsidize any Mortgage of a Condominium in the
Project by the FHLMC and the FNMA. In furtherance of-said intent,
Declarant may amend this Declaration without the consent of the
Members at any time after the close of escrow for the first sale
of a Condominium in the Project by recording a written instrument
setting forth the amendment, provided that the amendment is
necessary to cause this Declaration to comply with the require-
ments of the ORE, FHLMC, FNMA and/or the Government National
Mortgage Association; provided, however, that any such amendment
shall be effective only if Declarant mails a copy of the amend-
ment to all of the foregoing entities which are, or have agreed
to be, a holder, insurer or guarantor of a first Mortgage, and
does not, within thirty (30) days thereafter, receive a notice of
disapproval from any such entity. Said amendments shall not be
recorded by Declarant until after the expiration of such thirty
(30) day period.
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ARTICLE XVIII
ENFORCEMENT OF BONDED OBLIGATIONS
Section 1. Enforcement of Bonded Obligations. In the
event that the improvements of the Common Property have not been
completed prior to the issuance of a Final Subdivision Public
Report by the DRE, and the Association is obligee under a bond or
other arrangement (hereinafter referred to as the "Bond") to se-
cure a performance of the commitment of Declarant to complete
such improvements, the following provisions shall apply:
(a) The Board shall consider and vote on the
question of action by the Association to enforce the obliga-
tions under the Bond with respect to any improvements for
which a Notice.of Completion has not been filed within sixty
(60) days after the completion date specified for such im-
provements in the Planned Construction Statement appended to
the Bond. If the Association has given an extension in writ-
ing for the completion of any Common Property improvement,
the Board shall consider and vote on the aforesaid question
if a Notice of Completion has not been filed within thirty
(30) days after the expiration of such extension.
(b) In the event that the Board determines not to
initiate action to enforce the obligations under the Bond,
or in the event the Board fails to consider and vote on such
question as provided above, the Board shall call a special
meeting of the Members for the purpose of voting to override
such decision or such failure to act by the Board. Such
meeting shall be called according to the provisions of the
By-Laws dealing with meetings of the Members, but in any
event, such meeting shall be held not less than thirty-five
(35) days nor more than forty-five (45) days after receipt
by the Board of a petition for such meeting signed by Mem-
bers representing five percent (5%) of the total voting pow-
er of the Association.
(c) The only Members entitled to vote at such
meeting of Members shall be the Owners, other than Declar-
ant. A vote at such meeting of a majority of the voting pow-
er of such Members, other than the Declarant, to take action
to enforce the obligations under the 'Bond shall be deemed to
be the decision of the Association, and the Board shall
thereafter implement such decision by initiating and pur-
suing appropriate action in the name of the Association.
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ARTICLE XIX
ANNEXATION OF ADDITIONAL PROPERTY
Additional property may be annexed to and become sub-
ject to this Declaration as set forth in this Article.
Section 1. Phased Development of the Project. As set
forth in Article II herein entitled "Introduction to 4200 Harbor
Drive," Declarant intends to develop the Project in a series of
Phases which may be annexed to the Project. However, Declarant is
under no obligation to continue development of the Project.
Section 2. Annexation Pursuant to General Plan. All
or any part of the real property described as Annexation Property
herein, may be annexed to the Property and added to the scheme of
this Declaration, and subjected to the jurisdiction of the Asso-
ciation without the assent of the Association or its Members,
provided and on condition that:
(a) Any annexation pursuant to this Section shall
be made prior to three (3) years from the date of the origi-
nal issuance by the ORE of the most recently issued Final
Subdivision Public Report for the immediately preceding
Phase of the Project;
(b) The development of the Annexation Property
shall be in substantial conformance with the overall general
plan of development for the Project originally submitted to
and approved by the City and the DRE; and
(c) A Declaration of Annexation, as described in
Section 4 of this Article, shall be recorded covering the
Annexation Property.
Section 3. Annexation Pursuant to Approval. Upon ob-
taining the approval in writing of the Association pursuant to
the vote or written assent of two-thirds (2/3) of the total votes
residing in the Association Members, other than the Declarant,
the owner of any property who desires to annex said property to
the scheme of this Declaration and to subject it to the jurisdic-
tion of the Association may file of record a Declaration of An-
nexation, as described in Section 4 of this Article.
Section 4. Declaration of Annexation. The annexation
of additional property authorized under this Article shall be
made by filing of record a Declaration of Annexation, or similar
instrument, covering said additional property, and the
Declaration of Annexation shall expressly provide that the scheme
of this Declaration shall extend to such additional property. The
Declaration of Annexation may contain such complementary addi-
tions to and modifications of the covenants set forth in this
Declaration which are necessary to reflect the different charac-
ter, if any, of the annexed property and which are not inconsis-
tent with the general scheme of this Declaration. Except as set
forth in this Section, no Declaration of Annexation shall add,
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delete, revoke, modify or otherwise alter the covenants set forth
in this Declaration.
Section 5. Effective Date of Annexation. Any
Declaration of Annexation recorded on a Phase of the Project
shall become effective immediately upon: (a) the first close of
an escrow for the sale of a Condominium in a Phase, as evidenced
by the recordation of the first instrument of conveyance for said
Condominium; or (b) the conveyance of any Association Property in
said Phase to the Association, whichever first occurs.
Section 6. Right of De-Annexation. Declarant hereby
reserves the right to de-annex any property which may be annexed
to the Property pursuant to this Declaration, and to delete said
property from the scheme of this Declaration and from the juris-
diction of the Association, provided and on condition that the
de-annexation shall be made prior to the first close of an escrow
for the sale of a Condominium in the property to be de-annexed.
Section 7. Amendments to Declarations of Annexation.
Notwithstanding any other provisions in this Declaration to the
contrary, a Declaration of Annexation may be amended by the
requisite affirmative vote of Members (and first Mortgagees, if
applicable), as set forth in the Article herein entitled "General
Provisions," in only the annexed property described in said
Declaration of Annexation, rather than all Members (and first
Mortgagees, if applicable) in the Project, on the following
conditions:
•
(a) Such amendment applies only to the annexed
property described in said Declaration of Annexation; and
(b) Such amendment shall in no way contradict,
revoke or otherwise alter any of the Covenants set forth in
this Declaration.
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ARTICLE XX
RIGHT OF CITY TO COMPEL PERFORMANCE
Section 1. Rights of City. The Association shall in-
demnify and hold the City harmless for any damages resulting from
the Association's maintenance of the Common Property. Notwith-
standing any other provision regarding maintenance responsibili-
ties, the City is hereby granted the right, but in no event the
duty, to enforce the maintenance obligations of the Owners and
the Association for the Common Property described in this Decla-
ration, to the extent that the Common Property is maintained in a
manner which complies with all applicable City, State and Federal
ordinances, statutes and regulations, and which does not create
or perpetuate nuisances, health or safety hazards. In the event
of a breach of the maintenance provisions contained in this Sec-
tion, the City shall give written notice of such breach and the
Association shall remedy such breach within thirty (30) days of
receipt of such written notice by the City. The Association
recognizes that it has the primary responsibility for enforcement
of its maintenance responsibilities that are contained in this
Declaration, and unequivocally guarantees to institute and ex-
peditiously prosecute any required legal action to obtain compli-
ance with the provisions contained in this Article. The City, in
enforcing the provisions contained in this Article, shall be en-
titled to all the rights and remedies of an Owner or of the Asso-
ciation. The City shall, to the extent allowable by law, be enti-
tled to all expenses of enforcement, including the enforcement by
private legal counsel, and shall have the authority to lien the
subject property (including individual Condominiums of Owners, if
applicable) if the Association does not pay the City for all ex-
penses of correction and enforcement. All funds obtained by lien
or other legal proceeding by the City shall be utilized by the
City to repay the City for the costs of correcting the breach
after costs of expenses of enforcement shall first have been de-
ducted.
Notwithstanding the foregoing, no such amendment or
modification to this Declaration which would affect the terms and
provisions of this Declaration as it relates to maintenance re-
sponsibilities of the Association or which would terminate or
materially impair the rights of the City as set forth in this
Declaration, shall be effective without the prior written consent
of the City.
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ARTICLE XXI
GENERAL PROVISIONS
Section 1. Enforcement.
(a) The Association or the Owner of any Condomin-
ium in the Project, including the Declarant, shall have the
right to enforce, by proceedings at law or in equity, all of
the Protective Covenants now or hereafter imposed by this
Declaration and the By-Laws, respectively (and the Rules and
Regulations duly adopted by the Association), including,
without limitation, the right to prosecute a proceeding at
law or in equity against the person or persons who have vio-
lated, or are attempting to violate, any of said Protective
Covenants, to enjoin or prevent them from doing so, to cause
said violation to be remedied and/or to recover damages for
said violation.
(b) The result of every act or omission whereby
any of the Protective Covenants contained in this Declara-
tion or the provisions of the By-Laws are violated, in whole
or in part, is hereby declared to be and constitutes a nuis-
ance, and every remedy allowed by law or equity against a
nuisance shall be applicable against every such result and
may be exercised by any Owner, by the Association, or by its
successors in interest.
(c) The remedies herein provided for breach of
the Protective Covenants contained in this Declaration or
the provisions of the By-Laws shall be deemed cumulative,
and none of such remedies shall be deemed exclusive.
(d) The failure of the Association or any Owner
to enforce any of the Protective Covenants contained in this
Declaration, the provisions of the By-Laws or any Rules or
Regulations shall not constitute a waiver of the right to
enforce the same thereafter.
(e) A breach of the Protective Covenants con-
tained in this Declaration or of the provisions of the By-
Laws shall not affect or impair the lien or charge of any
bona fide Mortgage or deed of trust made in good faith and
for value on any Condominium; provided, however, that any
subsequent Owner of such property shall be bound by said
Protective Covenants and the provisions of the By-Laws,
whether or not such Owner's title was acquired by foreclo-
sure, a trustee's sale or otherwise.
(f) The Board, for and on behalf of the Associa-
tion, may assess monetary penalties against an Owner as a
Compliance Assessment and/or temporarily suspend said Own-
er's voting rights and right to use any recreational facili-
ties, for the period during which any Assessment against
said Owner's Condominium remains unpaid; provided, however,
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the requirements for Notice and Hearing set forth in the By-
Laws shall be followed with respect to the accused Owner
before a decision to impose discipline is reached.
(g) The Board, for and on behalf of the Associa-
tion, may temporarily suspend an Owner's voting rights and
right to use any recreational facilities for a period not to
exceed thirty (30) days for any infraction of the Associ-
ation's Rules and Regulations; provided, however, the re-
quirements for Notice and Hearing set forth in the By-Laws
shall be followed with respect to the accused Owner before a
decision to impose discipline is reached.
(h) In addition to the above general rights of
enforcement, the City shall have the right, through its
agents and employees, to enter upon any part of the Project
for the purpose of enforcing the California Vehicle Code and
its local ordinances, and is hereby granted an easement over
the Project for that purpose.
Section 2. Severability. Invalidation of any one of
these Protective Covenants by judgment or court order shall in no
way affect any other provisions hereof, which shall remain in
full force and effect.
Section 3. Term. The Protective Covenants set forth
in this Declaration shall run with and bind the Project, and
shall inure to the benefit of the Association and be enforceable
by the Board or the Owner of any land subject to this Declara-
tion, their respective legal representatives, heirs, successors
and assigns, for a term of fifty (50) years from the date this
Declaration is recorded, after which time said Protective Cove-
nants shall be automatically extended for successive periods of
ten (10) years, unless an instrument, signed by a majority of the
then Owners agreeing to terminate said Protective Covenants, in
whole or in part, has been recorded within one (1) year prior to
the termination of the initial fifty (50) year term, or within
one (1) year prior to the termination of any successive ten (10)
year period.
Section 4. Construction. The provisions of this Dec-
laration shall be liberally construed to effectuate its purpose
of creating a uniform plan for the development and maintenance of
the Project. The Article and Section headings have been inserted
for convenience only and shall not be considered or referred to
in resolving questions of interpretation or construction.
Section 5. Singular Includes Plural. Whenever the
context of this Declaration may so require, the singular shall
include the plural, and the masculine shall include the feminine
and neuter.
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Section 6. Amendments. This Declaration may be amend-
ed only by an affirmative vote of not less than sixty-seven per-
cent (67%) of each class of Members. So long as there is both a
Class A and Class B membership, any amendments to this Declara-
tion shall require the prior approval of the ORE. At such time
when the Class B membership shall cease and be converted to Class
A membership, any and all amendments to this Declaration shall be
enacted by requiring the vote or written assent of Members repre-
senting both: (a) sixty-seven percent (67%) of the total voting
power of the Association, and (b) sixty-seven percent (67%) of
the votes of Members, other than the Declarant; provided, how-
ever, that the percentage of the voting power necessary to amend
a specific provision shall not be less than the percentage of af-
firmative votes prescribed for action to be taken under said pro-
vision. In addition, in the event that FNMA participates in the
financing of Condominiums in the Project, the written consent not
less than fifty-one percent (51%) of the first Mortgagees shall
be required for any amendment of a "material" nature. An
amendment which affects or purports to affect any of the
following is considered material:
(a) The legal status of the Project as a common
interest development;
(b) Voting rights;
(c) Assessments, assessment liens or the priority
of assessment liens, including the levy and collection
thereof, enforcement provisions for nonpayment and subordi-
nation of liens for nonpayment;
(d) Reserves for maintenance, repair and replace-
ment of Common Property;
(e) Responsibility for Common Property mainte-
nance and repair;
(f) Reallocation of interests in the Common Pro-
perty or rights to use the Common Property;
(g) Boundaries of any Condominium;
(h) Encroachment by Improvements into Common
Property;
(i) Expansion or contraction of the Project, or
addition, annexation or de-annexation of additional property
to or from the Project;
(j) Insurance or fidelity bonds;
(k) Leasing of Condominiums;
(1) Restrictions on alienation, including, but
not limited to, rights of first refusal;
(m) Any decision by the Association to establish
self-management, if professional management was previously
required by an eligible first Mortgagee or legal documents
governing the Project;
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(n) Restoration or repair of the Project in a
manner other than as specified in this Declaration;
(o) Any action to terminate the legal status of
the Project after substantial destruction or condemnation
occurs; and;
(p) Mortgagee protection provisions as set forth
in that Article hereinabove entitled "Mortgagee Protection,"
and such other provisions in this Declaration for which the
consent of Mortgagees shall be required or which are ex-
pressly for the benefit of Mortgagees, insurers or guaran-
tors of Mortgages.
In the event the Association is considering termination of the
legal status of the Project for reasons other than the substan-
tial destruction or condemnation of the Project, then sixty-seven
percent (67%) of the first Mortgagees must agree to said termi-
nation. Notwithstanding the foregoing, in the event any first
Mortgagee receives a written request, delivered by certified or
registered mail with return receipt requested, from the Board to
approve any amendment to this Declaration, and such first Mort-
gagee does not deliver a negative response in writing to the
Board within thirty (30) days of the mailing of such request by
the Board, such first Mortgagee shall be deemed to have approved
such proposed amendment. This amendment provision shall not be
amended to allow amendments by less than the percentages set
forth hereinabove. Notwithstanding the foregoing, any Owner or
the Association may petition the Superior Court of the County of
San Diego for an order reducing the necessary percentage required
under this Section to amend this Declaration. The procedure for
effecting this petition is set forth in Section 1356 of the
California Civil Code, as the same may be amended, from time to
time. An amendment made in accordance with the provisions set
forth hereinabove shall be effective when executed by the
President and Secretary of the Association, who shall certify
that the amendment has been approved by the membership and, where
appropriate, by the first Mortgagees in the percentages set forth
hereinabove, recorded in the Office of the County Recorder for
the County of San Diego. Upon such recordation, the amendment
shall be effective and binding upon all Owners and all
Mortgagees, regardless of whether such Owner or such Mortgagees
consented to such amendment.
Section 7. Encroachments. None of the rights and ob-
ligations of the Owners created herein or by the deed shall be
altered in any way by encroachments due to settlement or shifting
of structures or any other cause. There shall be valid easements
for the maintenance of said encroachments so long as they shall
-77-
exist; provided, however, that in no event shall a valid easement
for encroachment be created in favor of an Owner if said en-
croachment occurred due to the willful conduct of said Owner.
Section 8. Notices. Any notice permitted or required
to be delivered as provided herein shall be in writing and may be
delivered either personally or by mail. If delivery is made by
registered or certified mail, it shall be deemed to have been de-
livered forty-eight (48) hours after a copy of the same has been
deposited in the United States mail, postage prepaid, addressed
to any person at the address given by such person to the Associa-
tion for the purpose of service of such notice, or to the Condo-
minium Unit of such person if no address has been given to the
Association. If such notice is not sent by regular or certified
mail, it shall be deemed to have been delivered when received.
Such address may be changed, from time to time, by notice in
writing to the Association.
Section 9. Attorneys' Fees. If any Owner defaults in
making a payment of Assessments or in the performance or obser-
vance of any provision of this Declaration, and the Association
has obtained the services of an attorney in connection therewith,
the Owner covenants and agrees to pay to the Association any
costs or fees incurred, including reasonable attorneys' fees, re-
gardless of whether legal proceedings are instituted. In case a
suit is instituted, the prevailing party shall recover the cost
of the suit, in addition to the aforesaid costs and fees.
IN WITNESS WHEREOF, Declarant has executed this instru-
ment on the day and year first above written.
"DECLARANT"
MARLBOROUGH DEVELOPMENT CORPORATION,
a California corporation
BY:
Its:
BY:
Its:
-78-
STATE OF CALIFORNIA )
) SS.
COUNTY OF )
On , 19 , before me, the undersigned, a
Notary Public in and for said State, personally appeared
and , personally
known to me (or proved to me on the basis of satisfactory evi-
dence) to be the persons who executed the within instrument
as and , on
behalf of MARLBOROUGH DEVELOPMENT CORPORATION, the corporation
therein named, and acknowledged to me that said corporation
executed the within instrument pursuant to its By-Laws or a
resolution of its Board of Directors.
WITNESS my hand and official seal.
Signature of Notary Public
(SEAL)
EXHIBIT "A"
ACCESS EASEMENTS
(to be attached)
Page 1 of 1 Page
EXHIBIT "B1
ANNEXATION PROPERTY
The Annexation Property shall mean and refer to that
certain real property located in the County of San Diego, State
of California, more particularly described as:
(to be attached)
Page 1 of 1 Page
CONSENT OF LIENHOLDER AND
SUBORDINATION OF LIEN
The undersigned beneficiary under that certain Deed of
Trust recorded on , 19 , as Instrument No.
, in the Official Records of San Diego County, Cali-
fornia, agrees that the lien of the Deed of Trust shall be junior
and subordinate and subject to the attached Declaration of
Covenants, Conditions and Restrictions, and Reservation of
Easements for 4200 Harbor Drive ("Declaration"), to any
Declaration of Annexation recorded pursuant to the Article herein
entitled "Annexation of Additional Property" ("Declaration of
Annexation") and to any easements to be conveyed to the 4200
Harbor Drive Homeowners Association in accordance with the terms
of the Declaration and any Declaration of Annexation.
DATED:"LIENHOLDER"
BY:
BY:
Its:
Its:
STATE OF CALIFORNIA
COUNTY OF ORANGE
)) ss,)
On , 19 , before me, the undersigned, a
Notary Public in and for said State, personally appeared
and , personally
known to me (or proved to me on the basis of satisfactory evi-
dence) to be the persons who executed the within instrument
as and , on
behalf of the association therein
named, and acknowledged to me that said association executed the
within instrument pursuant to its By-Laws or a resolution of its
Board of Directors.
WITNESS my hand and official seal.
Signature of Notary Public
(SEAL)
Recording Requested By:
LAND TITLE INSURANCE COMPANY
When Recorded, Mail to:
SEARS SAVINGS BANK
701 NORTH BRAND BLVD.
GLENDALE, CALIFORNIA 91203
ATTENTION: Richard C. Fugate, Esq.
Index as Amendment to CC&R's
THIRD DECLARATION
OF
ANNEXATION
FOR
WINDSONG COVE
(PHASE IV, LOT 5)
THIS THIRD DECLARATION OF ANNEXATION FOR WINDSONG COVE
("Declaration of Annexation") is made this day of ,
19 , by SEARS SAVINGS BANK, a California corporation, formerly
known as ALLSTATE SAVINGS AND LOAN ASSOCIATION ("Declarant").
PREAMBLE
A. Declarant (as that term is defined in the
Declaration (as herein defined) is the owner of the Territory (as
herein defined).
B. Declarant has heretofore recorded the Declaration,
pursuant to which Declarant has established a condominium project
in certain Properties (as that term is defined in Section 1.06 of
this Declaration of Annexation).
C. Declarant has deemed it desirable, for the efficient
preservation of the values and amenities in the Properties, to
create a Corporation under the Nonprofit Mutual Benefit
Corporation Law of the State of California to which shall be
delegated and assigned the powers of maintaining and
administering the Common Area (as that term is defined in the
Declaration) and administering and enforcing the covenants and
restrictions, and collecting and disbursing the assessments and
changes, created in the Declaration.
D. Declarant has caused such Corporation, the Members
of which are the respective Owners (as that term is defined in
the Declaration) of Condominiums (as that term is defined in the
Declaration) in the Properties, to be formed for the purpose of
exercising such functions.
E. Declarant intends to develop and convey all of the
Properties pursuant to a general plan for all of the Properties
and subject to certain protective convenants, conditions,
restrictions, reservations, easements, equitable servitudes,
liens and charges, all running with the Properties as set forth
in the Declaration. Pursuant to the Declaration, Declarant may
execute, acknowledge and record one or more Declarations of
Annexation (as that term is defined in Article XII, Section
11 (b), p. 25 of the Declaration) adding a Phase (as that term is
defined in the Declaration) to the Properties.
F. Declarant intends to annex the Territory to the
Properties and thereby subject the Territory to all of the
protective covenants, conditions, restrictions, easements,
equitable servitudes, liens and charges set forth and contained
in the Declaration.
G. Declarant hereby declares that all of the Territory
shall be held, sold, conveyed, encumbered, hypothecated, leased,
used, occupied and improved subject to the covenants, conditions,
restrictions, reservations, easements, equitable servitudes,
liens and charges set forth in the Declaration, which Declaration
is by this reference incorporated herein and made a part hereof
as though set forth in full hereat, and in this Declaration of
Annexation, all of which are for the purpose of uniformly
enhancing and protecting the value, attractiveness and
desirability of the Properties and Territory, in furtherance of a
general plan for the protection, maintenance, subdivision,
improvement and sale of the Properties and Territory or any
portion thereof. The covenants, conditions, restrictions,
reservations, easements, equitable servitudes, liens and charges
set forth in the Declaration and in this Declaration of
Annexation shall run with the Territory and shall be binding upon
all persons having any right, title or interest in the Territory,
or any part thereof, their heirs, successors and assigns; shall
inure to the benefit of every portion of the Territory and any
- 2 -
interest therein; shall inure to the benefit of and be binding
upon Declarant and each Owner and their respective heirs,
executors and administrators; and may be enforced by Declarant,
by any Owner, or by the Association.
ARTICLE I
DEFINITIONS
Unless otherwise expressly provided, the following words
and phrases when used herein shall have the meanings hereinafter
specified.
Section 1.01. Declaration shall mean that certain
Declaration of Restrictions for Windsong Cove, made May 25, 1982
and recorded June 7, 1982 as Instrument No. 82-172837, in the
Official Records of the County of San Diego, State of California,
together with the First Amendment to Declaration of Restrictions
for Windsong Cove, recorded on August 6, 1982 as Instrument No.
82-242544 in the Office of the County Recorder; and all
Declarations of Annexations and Amendments thereunder and thereto
recorded prior to the recording of this Declaration of
Annexation.
Section 1.02. Other Terms Defined. Each of the
definitions set forth and contained in Article I of the
Declaration is by this reference incorporated herein and made a
part hereof as though set forth in full hereat, except to the
extent terms defined in the Declaration are inconsistently
defined herein. For the purpose of interpreting terms as used in
this Declaration of Annexation that are defined in the
Declaration, the definitions set forth in the Declaration shall
be interpreted without the inclusion of this Declaration of
Annexation or the Territory within the scope of the Declaration.
Section 1.03. Annexed Common Area shall mean all
portions of the Territory not included within any Unit.
Section 1.04. Condominium Plan shall mean that certain
condominium plan recorded concurrently herewith pursuant to
California Civil Code Section 1351, in the Official Records of
the County of San Diego, covering the Territory, including such
amendments thereto as may from time to time be duly executed and
recorded; and each other Condominium Plan covering a phase of
Development.
Section 1.05. Declaration of Annexation shall mean this
Declaration of Annexation for Windsong Cove.
Section 1.06. Properties shall mean, collectively, all
of the Phases, as each Phase may from time to time be annexed
pursuant to Article XII, Section 11 of the Declaration, and shall
initially include Phases I, II, and III, Lots 2, 3 and 4 of
Carlsbad Tract No. 74-22.
Section 1.07. Territory shall mean that certain real
property located in the County, described more particularly as
Lot 5 of Carlsbad Tract No. 74-22, as shown on Map No. 8107,
recorded as Instrument No. 75-104002 on May 1, 1975, Official
Records of the County of San Diego.
ARTICLE II
OWNERS' PROPERTY RIGHTS
Section 2.01. Owners' Easements of Enjoyment in the
Annexed Common Area. Each Owner of a Condominium in the
Territory shall enjoy a right and easement of ingress and egress
and of enjoyment in, to and over the Annexed Common Area which
shall be appurtenant to and shall pass with title to every
Condominium in the Territory, upon the terms, subject to the
- 3 -
rights and reservations, and in every respect co-extensive with
the Owners' easements of enjoyment over the Properties set forth
in Recital D and Article XII, Section 11 of the Declaration.
Section 2.02. Owners' Easement of Enjoyment in the
Common Area. Each Owner of a Condominium in the Territory shall
enjoy a right and easement of ingress and egress and of enjoyment
in, to and over the Common Area which shall be appurtenant to and
shall pass with title to every Condominium in the Territory, upon
the terms, subject to the rights an reservations, and in every
respect co-extensive with the Owners' easements of enjoyment over
the Properties set forth in Recital D and Article XII, Section 11
of the Declaration.
Section 2.03. Owner's Easements of Enjoyment in the
Annexed Common Area for Owners in the Properties. Each Owner of
a Condominium in the Properties shall enjoy a right and easement
of ingress and egress and of enjoyment in, to and over the
Annexed Common Area which shall be appurtenant to and shall pass
with title to every Condominium in the Properties, upon the
terms, subject to the rights and reservations, and in every
respect co-extensive with the Owners' easements of enjoyment over
the Properties set forth in Recital D and Article XII, Section 11
of the Declaration.
ARTICLE III
OWNERSHIP OF CONDOMINIUMS IN THE TERRITORY
AND ASSESSMENT FACTORS FOR CONDOMINIUMS IN THE TERRITORY
Section 3.01. Owners of Condominiums in the Territory.
Each Condominium in the Territory shall include the elements as
provided for and defined in the Declaration. The undivided
interest of each Condominium in the Common Area of the Territory
shall be as specified in Exhibit "A" to this Declaration of
Annexation, which Exhibit "A" is incorporated herein by
reference.
Section 3.02. Assessment of Condominiums in the
Territory. Both regular and special assessments, as defined in
the first sentence of Section 2 of Article III of the
Declaration, shall be levied upon each Condominium at a uniform
rate; provided, that if California Department of Real Estate
Regulations shall so require, and if it is so provided for in
Exhibit "B" to this Declaration of Annexation, such regular and
special assessments shall be assessed at that rate greater or
lesser than a uniform rate as shown in Exhibit "B" to this
Declaration of Annexation.
ARTICLE IV
EXCLUSIVE USE AREAS
The coverage of the provisions of the Declaration
creating Exclusive Use Area Easements appurtenant to
Condominiums, and subjecting the same to the rules and
regulations of the Corporation, are hereby expressly extended to
the Territory.
ARTICLE V
DECLARANT'S GRANT OR OFFER TO GRANT EASEMENTS
Section 5.01. The Easements. Prior to the date hereof,
Declarant has granted, or has recorded irrevocable offers to
grant, to a public agency, or to a private association acceptable
to the Executive Director of the California Coastal Commission,
the following easements (the "Easements"):
A. An Open Space Easement over the bluff face portion
of, and all of the wetland area within, Lot 5 of Carlsbad Tract
- 4 -
No. 74-22 according to Map No. 8107 filed with the County
Recorder of San Diego County on May 1, 1975 ("Lot 5"); and
B. A Public Access Easement for passive recreational
purposes over a 50 foot wide area leading from the terminus of
Harbor Drive to the bluff top. This Public Access Easement does
or shall extend laterally along the entire bluff top ten (10)
feet in width as measured northward from the bluff top line as
depicted in Exhibit D of the Coastal Commission Notice of Intent
to Issue Permit for Lot 5. (The areas included in Section A and
Section B hereof shall hereinafter be referred to as the
"Easements Area".)
In the event that Declarant has not yet granted the
Easements, Declarant does hereby reserve unto itself such
Easements and the right to grant such Easements as provided
herein.
Section 5.02. Easements Open to General Public. The
Easements, or the offer to grant such Easements, as the case may
be, referred to in Section 5.01 stipulate that the Easements are
to remain open to the general public at all times. If the
Declarant has not yet granted the Easements, the right to include
such a provision is hereby made an express part of the
Declarant's reservation of easements set forth in Section 5.01
hereof.
Section 5.03. Maintenance of Easements. Any
improvements permitted in the Easements Area shall be maintained
by the Windsong Cove Condominium Association. The agency whch
accepts ownership of the Easements shall have, at its discretion,
the right but not the obligation of accepting maintenance
responsibility at the time it accepts ownership of the Easements.
Section 5.04. Ownership of Easements. If no agency is
found which will accept the ownership of the Easements, the
Windsong Cove Condominium Association shall accept ownership of
the Easements, and shall be responsible for the on-going
maintenance of any improvements permitted in the Easements Area.
ARTICLE VI
CONDOMINIUM ASSOCIATION OBLIGATIONS
Section 6.01. Association's Obligation to Maintain.
All private streets, driveways and drainage systems at the
Properties shall be maintained by the Windsong Cove Condominium
Association in perpetuity.
Section 6.02. Rights of City of Carlsbad. In the event
that the Windsong Cove Condominium Association does not fulfill
its obligation under Section 6.01 hereof, and the sitation
constitutes a maintenance problem or emergency, the City of
Carlsbad shall have the right, but not the obligation, to enter
upon the Properties, and to perform all required maintenance and
repairs thereon. The Windsong Cove Condominium Association shall
be liable for the cost of such maintenance and repairs performed
by the City of Carlsbad, and the City of Carlsbad shall bill the
cost thereof to the Windsong Cove Condominium Association. If
such bill is not paid, the City of Carlsbad shall have the right
to bring an action for recovery of such money, and the prevailing
party in such action shall be entitled to recover its attorney's
fees.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01. Coverage of Declaration. The Territory
is hereby subjected to every term, provision and condition of the
Declaration, and each of the covenants, conditions, restrictions,
reservations, easements, equitable servitudes, liens and charges
- 5 -
set forth therein, whether or not particular reference thereto is
expressly made in this Declaration of Annexation.
Section 7.02. Amendments. This Declaration of
Annexation shall not be amended except by amendment to the
Declaration pursuant to the provisions of Article XII, Section 2
of the Declaration. This Declaration of Annexation shall be
subject to the effect of every amendment to the Declaration
recorded subsequent to the recording of this Declaration of
Annexation.
Section 7.03. Notice. The provisions of the
Declaration relating to notice shall apply to this Declaration of
Annexation as though set forth at length therein with respect to
this Declaration of Annexation.
Section 7.04. Term. The term of this Declaration of
Annexation shall be the term of the Declaration, including any
extensions thereof.
Section 7.05. Conflicting Provisions. In case any of
the covenants, conditions, restrictions, reservations, easements,
equitable servitudes, liens or charges of this Declaration of
Annexation conflict with any of the covenants, conditions,
restrictions, reservations, easements, equitable servitudes,
liens or charges of the Declaration, then the Declaration shall
control. Except as to any such conflict between this Declaration
of Annexation and the Declaration, the provisions of the
Declaration relating to conflicting provisions shall apply to and
include this Declaration of Annexation as though the term
Declaration as used therein included this Declaration of
Annexation.
IN WITNESS WHEREOF, Declarant has executed this
Declaration of Annexation on the date first above written.
SEARS SAVINGS BANK,
a California corporation,
formerly known as
ALLSTATE SAVINGS AND LOAN
ASSOCIATION
By_
Its
By_
Its
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this day of , 19 , before me,
the undersigned, a Notary Public in and for said County and
State, personally appeared , personally
known to me to be the , and ,
personally known to me to be the of the
Corporation that executed the within instrument and known to me
- 6 -
(or proved to me on the basis of satisfactory evidence) to be the
persons who executed the within instrument on behalf of the
Corporation therein named, and acknowledged to me that such
Corporation executed the same, pursuant to its by-laws, or a
resolution of its Board of Directors.
WITNESS my hand and official seal.
Signature
- 7 -
EXHIBIT "A"
FRACTIONAL INTERESTS OF CONDOMINIUMS
IN THE COMMON AREA OF THE TERRITORY
(LOT 5, TRACT NO. 74-22)
FRACTIONAL FRACTIONAL
UNIT NUMBER INTEREST UNIT NUMBER INTEREST
- 8 -
EXHIBIT "B1
ASSESSMENT ALLOCATION FACTORS
OF CONDOMINIUMS IN THE TERRITORY
Assessments for each condominium in California
Department of Real Estate Phase IV of the Windsong Cove
Condominiums (Lot 5 of the Carlsbad Tract No. 74-22) shall be
uniform with and equal to assessments for each condominium in
Phases I, II and III of the Windsong Cove Condominiums.
- 9 -
Recording Requested By
and
When Recorded Return To:
MCDONALD, HECHT, WORLEY & SOLBERG
Mr. A. John Hecht
617 Financial Square
600 "B" Street
San Diego, California 92101
DECLARATION OF RESTRICTIONS
FOR
WINDSONG COVE
TABLE OF CONTENTS
ARTICLE
I Definitions
II Membership and Voting Rights in
Corporation
III Covenant for Maintenance Assessments
to Corporation
IV Use of Living Units and Common Area
as Described in Condominium Plan
V Responsibilities of Maintenance
VI Separation of Interest and Partition
Prohibited
VII Power of Attorney
VIII Special Restrictions
IX Damage, Destruction and Condemnation
of Common Area
X Damage, Destruction and Condemnation
of Living Units
XI Enforcement
XII General Provisions
PAGES
3 through 5
5 through 7
7 through 9
9 through 14
14 through 15
15
16
16 through 17
17 through 19
19 through 20
20
20 through 26
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS is made this day of
,19 , by ALLSTATE SAVINGS AND LOAN ASSOCIATION, a
California corporation, hereinafter called "Declarant;
This Declaration is made with reference to the following
RECITALS:
A. Declarant is the owner of the real property located in
the City of Carlsbad, County of San Diego, California, more par-
ticularly described as:
Lot 2 of CARLSBAD TRACT NO. 74-22 according
to Map thereof No. 8107 filed with the County
Recorder of San Diego County on May 1, 1975;
excepting therefrom that portion, if any,
heretofore or now lying below the mean high
tide line of the Pacific Ocean,
hereinafter called the "Condominium Property."
B. Declarant has or will hereafter file a Condominium plan
with the Office of the County Recorder of San Diego County, Cali-
fornia covering the Condominium Property.
C. Declarant has or intends to improve the Condominium
Property by establishing thereon thirty-seven (37) condominium
units and intends to establish a condominium project under the
provisions of the California Condominium Act providing for
separate title to Living Units (as hereinafter defined) appurte-
nant to which will be an undivided fractional interest in the
Common Area (as hereinafter defined) .
D. The development of the Condominium property is the first
phase of a planned five (5) phase condominium project. The first
phase is planned to be constructed on Lot 2, as described in
Recital C above, and to consist of 37 Condominiums. Subsequent
phases are planned to be constructed on the following lots of
CARLSBAD TRACT NO. 74-22, Map No. 8107, and are planned to con-
sist of the following numbers of Condominiums:
-1-
Number of
Phase Lot No. Condominiums
23 52
3 4 72
4 portion of 58
Lot 5
5 portion of 64
Lot 5
There is no guarantee that all phases will be constructed or
completed. The Owners of a Condominium in each phase will
receive title to a Living Unit plus an undivided fractional
interest as tenant in common to the Common Area (as hereinafter
defined) located within that phase. In addition, each Owner of a
Condominium will receive the exclusive right to use and occupancy
of a portion of the Common Area within that phase designated as
Exclusive Use Areas, all as shown on the Condominium Plan (as
hereinafter defined) covering that phase. Each Owner of a Condo-
minium will also receive an easement for ingress, egress and
recreational use over portions of the Common Area of the other
phase. If all phases are completed as planned, there will be a
total of 246 Condominiums in the Condominium Project. Each
Condominium shall have appurtenant to it a membership in WINDSONG
COVE CONDOMINIUM ASSOCIATION, a California Nonprofit Mutual
Benefit Corporation ("Corporation"), which will be the management
body for the condominium project.
E. Before selling or conveying any interests in the Condo-
minium Property, Declarant desires to subject the Condominium
Property in accordance with a common plan to certain covenants,
conditions and restrictions for the benefit of Declarant and any
and all present and future owners of the Real Property (defined
below).
NOW, THEREFORE, Declarant hereby certifies and declares and
does hereby establish the following general plan for the protec-
tion and benefit of all of the Real Property, and has fixed and
does hereby fix the following protective covenants, conditions
and restrictions upon each and every ownership interest in the
Real property, under which said covenants, conditions and
restrictions each ownership interest in the Real Property shall
be hereafter held, used, occupied, leased, sold, encumbered, con-
veyed and/or transferred. Each and all of said covenants, con-
ditions and restrictions are for the purpose of protecting the
value and desirability of and shall inure to the benefit of all
of the Real property and shall run with and be binding upon and
-2-
pass with the Real Property and each and every ownership interest
therein and shall inure to the benefit of the Real Property and
apply to and bind the respective successors in title or interest
of Declarant.
ARTICLE I
DEFINITIONS
Section 1. "Corporation" shall mean and refer to WINDSONG
COVE CONDOMINIUM ASSOCIATION, a California Nonprofit Mutual
Benefit Corporation, its successors and assigns.
Section 2. "Board" shall mean and refer to the Board of
Directors of the Corporation.
Section 3. "Condominium Property" shall mean and refer to
Lot 2 of CARLSBAD TRACT NO. 74-22 according to Map thereof No.
8107 filed with the County Recorder of San Diego County on May 1,
1975; excepting therefrom that portion, if any, heretofore or now
lying below the mean high tide line of the Pacific Ocean, and
such additions thereto as are annexed pursuant to this Declaration.
Section 4. "Owner" shall mean and refer to the record own-
er, whether one (1) or more persons or entities, of fee simple
title to any .Condominium which is a part of the Condominium Prop-
erty, including contract sellers, but excluding those having such
interest merely as security for the performance of an obligation.
Section 5. "Condominium Plan" shall mean and refer to the
Condominium plan recorded pursuant to California Civil Code
Section 1351 covering the Condominium Property, including such
amendments thereto as may from time to time be recorded.
Section 6. "Condominium" shall mean and refer to a fee
simple estate in the Condominium Property as defined in Section
783 of the California Civil Code and shall consist of a separate
interest in a Living Unit and an undivided fractional interest as
tenant in common in the Common Area, together with any Exclusive
Use Area conveyed appurtenant thereto.
Section 7. "Living Unit" shall mean and refer to those por-
tions of the Condominium Property shown and described as such on
the Condominium Plan.
Section 8. "Common Area" shall mean and refer to all por-
tions of the Condominium property not located within a Living Unit.
Section 9. "Exclusive Use Area" shall mean and refer to
those portions of the Common Area to which an exclusive right to
-3-
use is granted to an Owner as shown and described on the Condo-
minium Plan and shall consist of Garage, Balcony, Patio, Court-
yard Area and Attic Exclusive Use Areas.
Section 10. "Declarant" shall mean and refer to ALLSTATE
SAVINGS AND LOAN ASSOCIATION, a California corporation, its suc-
cessors and assigns, if such successors or assigns should acquire
all of the Condominium property from the Declarant.
Section 11. "Mortgage" shall mean and refer to a Deed of
Trust as well as a mortgage.
Section 12. "Mortgagee" shall mean and refer to a benefi-
ciary under or holder of a Deed of Trust as well as a mortgagee.
Section 13. "Mortgagor" shall mean and refer to the trustor
of a Deed of Trust as well as a mortgagor.
Section 14. "Bylaws" shall mean and refer to the Bylaws of
the Corporation as they may from time to time be amended.
Section 15. "Articles" shall mean and refer to the Articles
of Incorporation of the Corporation as they may from time to time
be amended.
Section 16. "Member" shall mean and refer to a person en-
titled to membership in the Corporation as provided herein.
Section 17. "Project" shall mean and refer to the entire
real property above described, including all structures and im-
provements erected or to be erected thereon.
Section 18. "Declaration" shall mean and refer to this en-
abling Declaration of Restrictions as it may from time to time be
amended.
Section 19. "Eligible Insurer or Guarantor" shall mean and
refer to an insurer or governmental guarantor who has requested
notice from the Corporation of those matters which such insurer
or guarantor is entitled to notice of by reason of this Declara-
tion or the Bylaws.
Section 20. "Eligible Mortgage Holder" shall mean and refer
to a holder of a first Mortgage on a Condominium who has
requested notice from the Corporation of those matters which such
holder is entitled to notice of by reason of this Declaration or
the Bylaws.
Section 21. "Phase" shall mean and refer to that portion of
the Real property which is the subject of a separate Final Sub-
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division Public Report issued by the California Department of
Real Estate and which has been annexed hereto. As recited in
.Recital E above, Declarant intends, but is not obligated, to
develop the Project into five (5) separate phases.
Section 22. "Real Property" shall mean Lots 2, 3, 4 and 5 of
CARLSBAD TRACT NO. 74-22 according to Map thereof No. 8107 filed
with the County Recorder of San Diego County on May 1, 1975.
ARTICLE II
MEMBERSHIP AND VOTING RIGHTS IN CORPORATION
Section 1. Every Owner of a Condominium shall be a Member
of the Corporation. Membership shall be appurtenant to and may
not be separated from ownership of any Condominium. Each Owner
is obligated promptly, fully and faithfully to comply with and
conform to the Declaration, Articles and Bylaws and the rules and
regulations adopted thereunder from time to time by the Board and
officers of the Corporation. Membership in the Corporation shall
not be transferred, pledged or alienated in any way, except upon
the sale of the Condominium to which it is appurtenant, and then
only to the purchaser. The transfer of title to a Condominium or
the sale of a Condominium and transfer of possession thereof to
.the purchaser shall automatically transfer the membership appur-
tenant to such Condominium to the transferee.
The Corporation shall have two classes of voting membership:
Class A. Class A Members shall be all Owners of a Condomin-
ium with the exception of Declarant, and shall be entitled to one
(1) vote for each Condominium owned. When more than one person
holds an interest in any Condominium, all such persons shall be
Members. The vote for such Condominium shall be exercised as
they among themselves determine, but in no event shall more than
one (1) vote be cast with respect to any Condominium.
Class B. The Class B Member(s) shall be the Declarant and
shall be entitled to three (3) votes for each Condominium owned.
The Class B membership shall automatically terminate and forever
cease to exist and be converted to Class A membership on the
happening of any of the following events, whichever occurs
earlier:
(a) When the total votes outstanding in the Class A
membership equal the total votes outstanding in the Class B
membership; or
(b) Two (2) years following the date of issuance by the
California Department of Real Estate of the most recently issued
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original Final Subdivision Public Report for a Phase of develop-
ment of the Real Property; or
(c) Four (4) years after the original issuance by the
California Department of Real Estate of the Final Subdivision
Public Report for the first phase of the Project.
Section 2. Except as otherwise provided herein, the Corpo-
ration acting through the Board and officers shall have the sole
and exclusive right and duty to manage, operate, control, repair,
replace or restore all of the Common Area or any portion thereof,
together with the improvements, trees, shrubbery, plants and
grass thereon, all as more fully set forth in this Declaration,
the Articles and the Bylaws.
Section 3. The Board shall have the right to adopt reason-
able rules not inconsistent with the provisions contained in this
Declaration, and to amend the same from time to time relating to
the use of the Common Area and the recreational and other facil-
ities situated thereon by Owners and by their tenants or guests,
and the conduct of such persons with respect to automobile park-
ing, outside storage of boats, trailers, bicycles and other ob-
jects, disposal of waste materials, drying of laundry, control of
pets and other activities which, if not so regulated, might de-
tract from the appearance of the community or offend or cause
inconvenience or danger to persons residing or visiting therein.
Such rules may provide that the Owner of a Condominium whose
occupant leaves property on the Common Area in violation of the
rules may be assessed after appropriate notice and an opportunity
for a hearing before the Board to cover the expense incurred by
the Corporation in removing such property and storing or dispos-
ing thereof.
Section 4. For the purpose of performing the maintenance of
the Common Area or for any other purpose reasonably related to
the performance by the Board of its responsibilities under this
Declaration, the Corporation's agents or employees shall have the
right, after reasonable notice to the Owner, to enter any Living
Unit or upon any portion of the Common Area (including any Exclu-
sive Use Area) at reasonable hours; provided, however, except
during an emergency, there shall be no entry into a Living Unit
without the Owner's written consent, which consent shall not
unreasonably be withheld. When there is an entrance into any
Living Unit or Exclusive Use Area, such entrance shall be made
with as little inconvenience to the Owner as possible and any
damage caused shall be repaired by the Corporation.
Section 5. In discharging their duties and responsibili-
ties, the Board acts on behalf of and as representative of the
Corporation which acts on behalf of and as representative of the
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Owners, and no member thereof shall be individually or personally
liable or obligated for performance or failure of performance of
such duties or responsibilities unless he fails to act in good
faith.
ARTICLE III
COVENANT FOR MAINTENANCE ASSESSMENTS TO CORPORATION
Section 1. The Declarant, for each Condominium owned within
the Condominium Property, hereby covenants, and each Owner of any
Condominium by acceptance of a deed therefor, whether or not it
shall be so expressed in such deed, is deemed to covenant and
agrees to pay to the Corporation in accordance with the Bylaws:
(i) regular assessments, and (ii) special assessments, such as-
sessments to be established and collected as hereafter set forth
and as provided in the Bylaws. The regular assessments and any
special assessments, together with interest, costs, penalties and
reasonable attorney's fees, shall be a charge on the land and
shall be a continuing lien upon the Condominium against which
each such assessment is made. Each such assessment, together
with interest, costs, penalties and reasonable attorney's fees
shall also be the personal obligation of the person or persons
who were the Owner (s) of such property at the time when the
assessment fell due. The personal obligation for delinquent
assessments shall not pass to an Owner's bona fide and for value
successors in title unless expressly assumed by them.
Section 2. Both regular and special assessments (other than
special assessments imposed by reason of noncompliance with the
Articles, Bylaws and Declaration or the rules and regulations
adopted by the Board, or special assessments to raise funds for
the rebuilding or major repair of a portion of the structural
Common Area) shall be levied upon each Condominium at a uniform
rate. A special assessment against the Owners to raise funds for
the rebuilding or major repair of the structural Common Area of
the project shall be levied upon the basis of the ratio of the
square footage of the Living Unit of the Condominium to be as-
sessed to the total square footage of the floor area of all the
Condominiums to be assessed. All Condominiums shall be so spe-
cially assessed in the event any Condominium is so specially
assessed to raise funds for any such repair or rebuilding. An
Owner may be specially assessed as a remedy of the Corporation,
utilized by the Board, to reimburse the Corporation for costs
incurred in bringing the Owner "and/or his Condominium into com-
pliance with the provisions of this Declaration, the Bylaws and
rules and regulations adopted by the Board.
Section 3. The regular assessments shall commence as to all
Condominiums within a Phase on the first day of the calendar
— "7 —
month following close of the first sale of a Condominium by
Declarant within that Phase. Written notice of the assessment
shall be given to every Owner subject thereto. Assessments may
be collected on a monthly basis or otherwise as determined by the
Board. The Corporation shall, upon demand and for a reasonable
charge, furnish a certificate signed by an officer of the
Corporation setting forth whether the assessments on a specified
Condominium have been paid.
Section 4. Any assessment not paid within thirty (30) days
after the date due shall bear interest from the date due at the
rate provided in the Bylaws.
Section 5. At any time after any assessments levied by the
Corporation affecting any Condominium have become delinquent, the
Board may file for recording in the Office of the San Diego
County Recorder a notice of delinquency as to such Condominium,
which notice shall state all amounts which have become delinquent
with respect to such Condominium and the costs (including .attor-
ney's fees), penalties and interest which have accrued thereon,
the amount of any assessments relating to such Condominium which
are due and payable although not delinquent, a description of the
Condominium with respect to which the delinquent assessments are
owed, and the name of the record Or reputed record Owner of such
Condominium. Such notice shall be signed by the President or
other officer of the Board, or by a majority of the Members of
the Board, or by the Corporation's attorney. In the event the
delinquent assessments and all other assessments which have
become due and payable with respect to the same Condominium,
together with all costs (including attorney's fees), penalties
and interest which have accrued on such amounts, are fully paid
or otherwise satisfied prior to the completion of any sale held
to foreclose the lien provided for in this Article, the Board
shall record a further notice, similarly signed, stating the
satisfaction and releasing of such lien. Immediately upon re-
cording of any notice of delinquency pursuant to the foregoing
provisions of this Section, the amounts delinquent, as set forth
in such notice, together with the costs (including attorney's
fees), penalties and interest accruing thereon, shall be and
become a lien upon the Condominium described therein, which lien
shall also secure all other payments and/or assessments which
shall become due and payable with respect to said Condominium
following such recording, and all costs (including attorney's
fees), penalties and interest accruing thereon.
Section 6. Each assessment lien may be foreclosed as and in
the same manner as the foreclosure of a Mortgage upon real prop-
erty under the laws of the State of California, or may be en-
forced by sale pursuant to Sections 2924 et seq. and Section 1356
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of the California Civil Code, and to that end a power of sale is
hereby conferred upon the Corporation.
Section 7. The lien of the assessments, interest, penalties,
costs and attorney's fees provided for herein shall be subor-
dinate to the lien of any first Mortgage made in good faith and
for value upon any Condominium, and sale or transfer of any
Condominium pursuant to judicial or nonjudicial foreclosure of
such Mortgage, shall extinguish the lien of such assessment as to
payments which become due prior to such sale or transfer. No
sale or transfer shall relieve such Condominium from lien rights
for any assessments thereafter becoming due.
Section 8. Upon acquisition of record title to a Condomin-
ium from Declarant, such Owner shall make a contribution to the
capital of the Corporation in an amount equal to two (2) times
the amount of the regular monthly assessment as determined by the
Board. This amount shall be deposited by the buyer into the
purchase and sale escrow and disbursed therefrom to the Corpora-
tion. Within sixty (60) days after close of the first sales
escrow of a Condominium by Declarant, as seller, Declarant shall
deposit into an escrow an amount equal to two (2) times the
amount of the regular monthly assessment for any and all Condo-
miniums not yet sold. Escrow shall remit these funds to the
Corporation. Upon close of escrow of any Condominium for which
the capitalization fund is prepaid by Declarant, the buyer shall
remit, through escrow, at close of escrow, to Declarant, reim-
bursement of such funds. Said capital contribution is in addi-
tion to the regular and special assessments of the Corporation
and shall apply only to the first sales of Condominiums by
Declarant and shall not apply to any resale of Condominiums.
ARTICLE IV
USE OF LIVING UNITS AND COMMON AREA
AS DESCRIBED IN CONDOMINIUM PLAN
Section 1. Each Living Unit shall be improved, used and oc-
cupied for private, single-family dwelling purposes only, and no
portion thereof nor the Common Area shall be used for any commer-
cial purpose whatsoever; provided, however, Declarant may use any
of the Living Units and Exclusive Use Areas owned or leased by
Declarant as model homes and sales offices during that period of
time commencing when the Condominiums are first sold or offered
for sale to the public and ending when all the Condominiums in
the Project are sold and conveyed by Declarant to separate owners
thereof.
Section 2. Each Owner shall have the right to lease his
Condominium, provided that such lease is in writing and provides
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that the tenant shall be bound by and obligated to the provisions
of this Declaration, the Bylaws and the rules and regulations of
the Board and that the failure to comply with the provisions of
these documents shall be a default under the lease. With the
exception of a lender in possession of a Condominium following a
default under a first Mortgage, a foreclosure proceeding or any
deed or other arrangement in lieu of foreclosure, no Owner shall
lease his Condominium for transient or hotel purposes. Any lease
which is either for a period of less than thirty (30) days or
pursuant to which the lessor provides any services normally
associated with a hotel shall be deemed to be for transient or
hotel purposes.
Section 3. No Living Unit, Exclusive Use Area or improve-
ments situated therein shall be occupied or used for any purpose
or in any manner which shall cause such improvements to be unin-
surable against loss by fire or the perils of the extended cover-
age endorsement to the California Standard Fire Policy form, or
cause any such policy or policies representing such insurance be
cancelled or suspended, or the company refuse renewal thereof.
Section 4. Not exceeding a total of two (2) usual and ordi-
nary small household pets (exclusive of caged birds and aquarium
fish) may be kept in any Living Unit or Exclusive Use Area with-
out the prior written consent of the Board. Any pet weighing in
excess of twenty (20) pounds shall not be deemed a "small" pet.
Pets shall not be allowed on other portions of the Common Area
except as may be permitted by rules made by the Board. Except
as provided hereinabove, no animals, livestock, birds or poultry
shall be brought within the Condominium Property or kept in any
Living Unit or on any portion of the Common Area. No pet shall
be permitted to be kept within any portion of the Condominium
Property if it makes excessive noise or otherwise constitutes an
unreasonable annoyance to other Owners.
Section 5. No Living Unit or Exclusive Use Area shall be
used in such manner as to obstruct or interfere with the enjoy-
ment of occupants of other such areas or annoy them by unreason-
able noise or otherwise, nor shall any nuisance be committed or
permitted to occur in any Living Unit nor on the Common Area.
Section 6. No signs other than one (1) sign of customary
and reasonable dimensions advertising a Condominium for sale or
lease shall be erected or displayed in any Living Unit so that it
is visible from without such area without the prior written per-
mission of the Board, and all signs must conform with applicable
governmental ordinances. No signs shall be erected or displayed
on the Common Area except signs placed by authority of the
Board. Anything contained in this Declaration to the contrary
notwithstanding, Declarant shall have the right to install and
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maintain during the sales period set forth in Section 1 above
such signs, poles and advertisements as it deems appropriate in
connection with its sales program for the sale to the public of
Condominiums.
Section 7. There shall be no outside television or radio
antennae, masts, poles or flag poles constructed, installed or
maintained on the Condominium Property for any purpose whatsoever
without the prior written consent of the Board.
Section 8. Except as otherwise specifically provided here-
in, nothing herein contained shall give the Owner the right to
paint, decorate, remodel, landscape or adorn any part or parcel
of the Common Area without the written consent of the Board.
Section 9. No noxious or offensive activity shall be car-
ried on in any Living Unit or on the Common Area, nor shall any-
thing be done therein which may be or become an annoyance or nui-
sance to the other Owners other than construction or repair of
improvements made at the Board's instruction or at Declarant's
instruction. Nothing shall be done in any Living Unit or in, on
or to the Common Area which will impair the structural integrity
of any building, or which would structurally change any building
located therein. Except as otherwise provided herein, nothing
shall be altered or constructed in or removed from the Common
Area except upon the written consent of the Board or an architec-
tural committee appointed by the Board. All equipment, garbage
cans, wood piles or storage piles shall be kept screened and
concealed from view of neighboring Living Units, streets and
Common Area. All rubbish, trash or garbage shall be regularly
removed from each Living Unit and shall not be allowed to accumu-
late thereon or on the adjacent Common Area. No fences, hedges
or walls shall be erected or maintained upon the Condominium
Property except such as are installed in accordance with the ini-
tial construction of the buildings located on the Condominium
Property or as allowed by the Board. No exterior clotheslines
shall be erected or maintained, and there shall be no outside
drying or laundering of clothes on the Common Area, except in
areas which may be approved by the Board.
Section 10. No power equipment, hobby shops or car mainte-
nance (other than emergency work) shall be permitted on the Con-
dominium Property, except with prior written approval of the
Board. Approval shall not be unreasonably withheld and in
deciding whether to grant approval, the Board shall consider the
effects of noise, air pollution, dirt or grease, fire hazard,
interference with radio or television reception, and similar
objections.
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Section 11. Except as otherwise provided herein, the
Common Area shall be improved and used only for the following
purposes:
(i) affording vehicular passage and pedestrian
movement within the Condominium Property, including access to
the Living Units;
(ii) recreational use by the Owners and occupants
of Living Units in the Condominium Property and their guests,
subject to rules established by the Board;
(iii) beautification of the Common Area and provid-
ing privacy to the residents of the Condominium Property
through landscaping and such other means as the Board shall
deem appropriate;
(iv) parking of automotive passenger vehicles in
areas provided therefor as may be designated and approved by
the Board by such persons, upon such terms and conditions and
for such fees as may from time to time be determined by the
, Board;
(v) as Exclusive Use Areas to be used in the man- .
ner hereinafter described. Nothing herein shall be deemed to
allow persons other than the Owner of a Living Unit to which
an Exclusive Use Area is appurtenant (or his tenants and les-
sees) to enjoy the use thereof.
No part of the Common Area shall be obstructed so'as to interfere
with its use for the purposes hereinabove permitted, nor shall
any part of the Common Area be used for storage purposes (except
as incidental to one of such permitted uses, or for storage of
maintenance equipment used exclusively to maintain the Common
Area or in storage areas designated by the Board), nor in any
manner which shall increase the rate of which insurance against
loss by fire, or the perils of the extended coverage endorsement
to the California Standard Fire Policy form, or bodily injury, or
property damage liability insurance covering the Common Area and
improvements situated thereon may be obtained, or cause such
premises to be uninsurable against such risks or any policy or
policies representing such insurance to be cancelled or suspended
or the company issuing the same to refuse renewal thereof.
Section 12. The Board shall have the right to allow one or
more Owners to exclusively use portions of the otherwise nonex-
clusive Common Area, provided that such portions of the Common
Area are nominal in area and adjacent to the Owner's Exclusive
Use Area(s) or Living Unit, and, provided further, that such use
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does not unreasonably interfere with any other Owner's use or
enjoyment of the Project.
Section 13. Each Owner shall be legally liable to the Cor-
poration for all damages to the Common Area or to any improve-
ments thereof or thereto, including, but not limited to, the
buildings, recreation facilities and landscaping caused by such
Owner, his licensee(s) or any occupant of such Owner's Living
Unit as such liability may be determined under California law.
Each Owner shall be responsible for compliance with the provi-
sions of the Declaration, Articles, Bylaws and rules of the Board
by his guests, lessees and all occupants of his Living Unit, and
shall, after written notice and an opportunity for a hearing, pay
the fines and penalties assessed pursuant hereto, the Bylaws or
Board rules for any violation by his guests, lessees and occu-
pants of his Living Unit.
Section 14. Each Owner shall have the right, at his sole
cost and expense, to maintain, repair, paint, paper, panel,
plaster, tile and finish the interior surfaces of the ceilings,
floors, window frames, door frames, trim and perimeter walls of
the Living Unit and the surfaces of the bearing walls and parti-
tions located within the Living Unit. Said Owners shall have the
right to substitute new finished surfaces in place of those
existing on said ceiling, floors, walls and doors of said Living
Unit.
Section 15. Each Exclusive Use Area shall be (i) appurte-
nant to the Living Unit with which the Exclusive Use Area is con-
veyed, and (ii) used only for the purposes set forth in this
Declaration. The right to so use an Exclusive Use Area shall be
exercisable only by the Owner(s) of the Condominium appurtenant
thereto and/or said Owner's tenants and licensee(s). Conveyance
of a Condominium shall effect conveyance of Exclusive Use Areas
appurtenant thereto and transfer of all rights thereto to the
vested Owner of the Condominium. Any license(s) thereto shall be
terminated upon such conveyance. No Exclusive Use Area or any
rights thereto (other than said revokable licenses) shall be
transferred or conveyed apart from conveyance of the Condominium
to which they are appurtenant. Each Exclusive Use Area shall be
deemed to be Common Area for all those purposes set forth in this
Declaration which are not inconsistent with this Article IV or
Article V.
Section 16. Each Owner shall have the following rights with
regard to the Patio and Courtyard, if any, which he has the
exclusive right to use:
(a) To place furniture and potted plants upon said area.
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(b) If appropriate areas exist therefor, to landscape
and plant flowers and shrubs which do not unreasonably interfere
with the enjoyment of adjacent Living Units and Exclusive Use Areas.
Each Owner shall have the right to park automotive vehicles
in the Garage, if any, which he has the exclusive right to use.
Each Owner shall have the right to place furniture and
potted plants upon the Balcony, if any, which he has the exclu-
sive right to use.
Each Owner shall have the right to store non-hazardous items
only in the Attic, if any, which he has the exclusive right to use.
Except as provided in this Section 16, nothing contained
herein shall give any Owner the right to paint, decorate, remodel
or alter said Exclusive Use Areas or any other part of the Common
Area without the prior written consent of the Board.
Section 17. Anything contained in this Declaration to the
contrary notwithstanding, no building, fence, wall or other
structure or improvement shall be commenced, erected, placed or
altered upon the Common Area until the location and the complete
plans and specifications showing the nature, kind, shape, height
and materials, including the color scheme, have been submitted to
and approved in writing as to harmony of external design, color
and location to surrounding structures and topography by the
Board or by an architectural committee composed of three (3) or
more, but not to exceed five (5) representatives appointed by the
Board from the membership of the Corporation. The grade, level
or drainage characteristics of the Condominium Property or any
portion thereof shall not be altered without the prior written
consent of the Board or its designated committee. The provisions
of this Section 17 shall not apply to the initial construction by
Declarant of dwellings or other improvements on the Condominium
Property, and neither the Board nor any committee appointed by
the Board shall have any authority or right to approve or disap-
prove thereof.
ARTICLE V
RESPONSIBILITIES OF MAINTENANCE
Section 1. Each Owner of a Condominium shall be responsible
for the maintenance and repair-of the glass doors and windows
enclosing his Living Unit, including the metal frames and tracks
of glass doors and windows, the interior of his Living Unit and
all appliances whether "built-in" or freestanding within the
Living Unit and the interior surfaces of the Living Unit, and
shall also be responsible for the maintenance and repair of the
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plumbing, electrical and heating systems servicing his Living
Unit and located within the outside perimeter of the exterior
walls/ floors and ceilings thereof, including television cable
equipment and connections, and all appliances and equipment
located within or without said Living Unit, so long as those
systems are used exclusively by such Owner and not in common.
Each Owner shall also be responsible for the maintenance and
repair of any Exclusive Use Area which he has the exclusive right
to use, including the interior, interior surfaces of any fences
and railing and any windows, and shall make repairs 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 Corporation shall maintain and repair all
Parking Spaces; provided, however, should such maintenance or
repair result from the act or neglect of an Owner or his guests
or licensees, the Owner shall reimburse the Corporation for such
maintenance or repair.
Section 2. Each Owner hereby grants easements to other
Owners to enter onto each Living Unit and Exclusive Use Area, or
to have utility companies enter onto Condominiums to repair the
plumbing, heating and electrical systems located thereon, subject
to the limitations on entry into any Living Unit set forth in
Article II, Section 4. Each Owner hereby grants to utility com-
panies the right to enter any Exclusive Use Area when necessary
to do so for purposes of reading or repairing utility meters.
Section 3. The Board shall have the right to grant permits,
licenses and easements over, under, upon and across the Common
Area for utilities, roads and other purposes reasonably necessary
or useful for the property maintenance or operation of the Project,
ARTICLE VI
SEPARATION OF INTEREST AND PARTITION PROHIBITED
Section 1. No Owner may sell, assign, lease or convey his
interest in the Common Area separate and apart from his Living
Unit nor any portion of his Living Unit apart from the entire
Living Unit.
Section 2. Each of the Owners of a Condominium, whether
such ownership is in fee simple or as a tenant in common, is
hereby prohibited from partitioning or in any other way severing
or separating such ownership from any of the other ownerships in
the Condominium property, except upon the showing that such
partition is consistent with the requirements of California Civil
Code Section 1354.
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ARTICLE VII
POWER OF ATTORNEY
The Corporation is hereby granted an irrevocable power of
attorney to sell the Condominium Property for the benefit of all
the Owners thereof when partition of the Owners' interests in
said Condominium Property may be had pursuant to Article VI
above. The power of attorney herein granted may be exercised
upon the vote or written consent of Owners holding in the aggre-
gate at least two-thirds (2/2) of the interest in the Common Area
by any two (2) Members of the Board who are hereby authorized
to record a certificate of exercise in the Office of the San
Diego County Recorder, which certificate shall be conclusive
evidence thereof in favor of any person relying thereon in good
faith.
ARTICLE VIII
SPECIAL RESTRICTIONS
Section 1. Except as otherwise provided in Article VI above,
unless at least sixty-seven percent (67%) of the first Mortgagees
of Mortgages encumbering Condominiums (based upon one (1) vote
for each Mortgage) have given their prior written approval,
neither the Owners nor the Corporation shall:
(a) Seek, by act or omission, to abandon the Condomin-
ium project or to terminate the Condominium Plan or this Declara-
tion (whether or not because of any destruction to the Project),
or change, waive or abandon any scheme of regulation or enforce-
ment thereof, pertaining to the architectural design or the
exterior appearance or maintenance of Living Units or the Common
Area;
(b) Change the pro rata interest or obligations of any
Condominium for purposes of levying assessments or allocating
distributions of hazard insurance proceeds or condemnation awards
or for determining the pro rata share of the Common Area appurte-
nant to each Living Unit;
(c) Partition or subdivide any Condominium;
(d) Seek, by act or omission, to abandon, partition,
subdivide, encumber, sell or transfer the Common Area; provided,
however, that the granting of easements for public utility or
other public purposes consistent with the uses of the Common Area
shall not be deemed a transfer within the meaning of this
provision;
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(e) Use hazard insurance proceeds for losses to any
portion of the Condominium Property for other than the repair,
replacement or reconstruction of the Condominium property, except
as may be provided by statute upon substantial loss to the Living
Units or Common Area, respectively; or
(f) Fail to maintain fire and extended coverage
insurance on the Common Area on a current replacement cost basis
in an amount less than one hundred percent (100%) of the insur-
able value thereof, based on current replacement cost.
Section 2. Any restoration or repair of the Project, after a
partial condemnation or damage due to an insurable hazard, shall
be performed substantially in accordance with original plans and
specifications, unless other action is approved by Eligible Mort-
gage Holders of first Mortgages on Condominiums which have at
least fifty-one percent (51%) of the votes of Condominiums sub-
ject to Eligible Mortgage Holders' Mortgages.
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION OF COMMON AREA
Section 1. If any portion of the Common Area is damaged or
destroyed by fire or other casualty, then:
(a) If the cost of repairing or rebuilding does not
exceed the amount of available insurance proceeds by more than
five percent (5%) of the budgeted gross expenses of the Corpora-
tion for the fiscal year during which the repairs or rebuilding
is necessitated, the Board shall thereupon contract to repair or
rebuild the damaged portions of the Common Area substantially in
accordance with the original plans and specifications therefor.
(b) If the cost of repairing or rebuilding exceeds the
amount of available insurance proceeds by more than five percent
(5%) of the budgeted gross expenses of the Corporation for the
fiscal year during which the repairs or rebuilding is necessi-
tated, and if the Owners holding in aggregate more than fifty
percent (50%) interest in the Common Area agree to the repair or
restoration of the Project, then the Board shall contract as
provided in (a) above.
(c) If said Owners do not so agree to the repair or
rebuilding of the Common Area, -then each Owner (and his Mortga-
gee (s) as their respective interests shall then appear) shall be
entitled to receive that portion of insurance proceeds equal to
the proportion of the decrease in fair market value of his Condo-
minium as compared to the aggregate decrease in fair market
values of all the Condominiums caused by such damage or destrue-
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tion. For purposes hereof, fair market value shall be determined
by an MAI appraiser selected by the Board and hired by and at the
expense of the Corporation. Should dispute arise as to the
distribution of insurance proceeds, the dispute shall be decided
by arbitration by the American Arbitration Association pursuant
to its Commercial Rules of Arbitration.
(d) Anything in the immediately preceding paragraph to
the contrary notwithstanding, the Board shall contract for such
repair or rebuilding of Common Area which consists of building (s)
containing Living Units (or portions thereof and/or improvements
thereto) if fifty percent (50%) or more of the Owners owning
Living Units in said building(s) agree to the repair or restora-
tion of said buildings.
(e) If a bid to repair or rebuild is accepted, the
Board shall levy a special assessment against each Condominium in
the proportion the Condominiums are assessed, pursuant to Section
2 of Article III of this Declaration, for purposes of raising
funds for the rebuilding or major repair of a portion of the
structural Common Area to make up any deficiency between the
total insurance proceeds and the contract price for such repair
and rebuilding, and such assessment and all insurance proceeds,
whether or not subject to liens of Mortgagees, shall be paid to
the account of the Corporation to be used for such rebuilding.
Section 2. If any portion of the Common Area is taken by
condemnation, eminent domain or any proceeding in lieu thereof,
and the award therefor is not apportioned among the Owners and
their Mortgagees, as their respective interests then appear, by
court judgment or by agreement between the condemning authority
and each of the affected Owners, then the Owners of the Common
Area, 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 pro-
ceeds would be distributed pursuant to Subsection (c) of Section
1 above; provided, however, that should it be determined to
repair or rebuild any portion of the Common Area, such proceeds
shall be paid to the Corporation for.that purpose in the same
manner and subject to the same terms, conditions and limitations
as are set forth above in Section 1 of this Article IX for re-
pairing damaged or destroyed portions of the Common Area. 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 Section 1 of this Article IX for determining whether to
rebuild or repair following damage or destruction.
Section 3. The Corporation shall obtain and continue in
effect the following insurance:
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(a) A master fire insurance policy with glass coverage
and extended coverage endorsement for the full insurable value of
all of the improvements within the Project. "Improvements" means
and refers to the Common Area together with those appliances and
improvements located within the Living Units provided by Declar-
ant to the initial Owners of Condominiums and does not include
items not provided by Declarant. The form and content of such
policy must be satisfactory to all institutional first trust deed
lenders and shall meet the maximum standards of the various
institutional first trust deed lenders whose loan(s) encumber any
of the Condominiums.
(b) A public liability and property damage insurance
policy with cross liability endorsement, if available, insuring
the Corporation, any manager, the Declarant and the Owners
against liability incident to ownership or use of the Common
Area. The limits of such insurance shall not be less than
$1,000,000.00 covering all claims for death, personal injury and
property damage arising out of a single occurrence.
(c) If requested by Members of the Corporation who have
at least ten percent (10%) of the Corporation's voting power or
any first Mortgagee or any insurer or governmental guarantor of
any first Mortgage, a fidelity bond covering officers and
employees of the Corporation and employees of any manager or
managing agent, whether or not any such persons are compensated
for their services, naming the Corporation as obligee and written
in an amount equal to at least one hundred fifty percent (150%)
of the estimated annual operating expenses of the Corporation,
including reserves.
(d) Workers' compensation insurance covering any
employees of the Corporation.
Insurance premiums for the master policy shall be a common
expense to be included in the monthly assessments levied by the
Corporation. Each Owner shall be responsible to pay any deduct-
ible amount for any loss to his Condominium. Each Owner may
separately insure the improvements not covered by the master fire
insurance policy and personal property within his Condominium.
No Owner shall insure his Condominium in any manner which would
cause any diminution in insurance proceeds from the master pol-
icy. Should any Owner violate this provision he shall be respon-
sible to the Corporation for any such diminution.
ARTICLE X
DAMAGE, DESTRUCTION AND CONDEMNATION OF LIVING UNITS
Section 1. In the event of damage or destruction to any
Living Unit, the Owner thereof shall reconstruct the same as soon
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as reasonably practicable and substantially in accord with the
original plans and specifications therefor; provided, however,
that any such Owner may, with the written consent of the Board,
reconstruct or repair the same pursuant to new or changed plans
and specifications. In the event the Board fails to approve
or disapprove such changed plans and specifications within sixty
(60) days of the receipt thereof, they shall be deemed to have
been approved.
Section 2. In the event of any taking of a Living Unit, the
Owner (and his Mortgagees as their interests may appear) of the
Living Unit shall be entitled to receive the award for such
taking and after acceptance thereof he and his Mortgagee shall be
divested of all further interest in the Condominium Property if
such Owner shall vacate his Living Unit as a result of such
taking. In such event said Owner shall grant his remaining
interest in the Common Area appurtenant to the Living 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.
ARTICLE XI
ENFORCEMENT
Section 1. The Corporation, Declarant or any Owner shall
have the right to enforce, by any proceeding at law or in equity,
all restrictions, conditions, covenants, reservations, liens and
charges now or hereafter imposed by this Declaration.
Section 2. Each Owner shall have a right of action against
the Corporation for any failure of the Corporation to comply with
the provisions hereof or of the Bylaws or Articles.
Section 3. Failure by the Corporation, Declarant or any
Owner to enforce any provision of this Declaration shall in no
event be deemed a waiver of the right to do so thereafter.
ARTICLE XII
GENERAL PROVISIONS
Section 1. Should any provision in this Declaration be void
or become invalid or unenforceable in law or equity by judgment
or court order, the remaining provisions hereof shall be and
remain in full force and effect.
Section 2. Except as may otherwise be stated in this Decla-
ration, during the period of time prior to conversion of the
Class B membership in the Corporation to Class A membership, this
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Declaration may be amended at any time and from time to time by
an instrument in writing signed by seventy-five percent (75%) of
the voting power of each class of Members of the Corporation, any
which amendment shall become effective upon the recording thereof
with the Office of the County Recorder of San Diego County, Cali-
fornia. After conversion of the Class B membership in the Corpo-
ration to Class A membership, the Declaration may be amended at
any time and from time to time by an instrument in writing signed
by (i) fifty-one percent (51%) of the total voting power of the
Corporation, and (ii) at least fifty-one percent (51%) of the
total voting power of Members of the Corporation other than
Declarant. Anything herein stated to the contrary notwithstand-
ing, no material amendment may be made to this Declaration with-
out the prior written consent of Eligible Mortgage Holders whose
Mortgages encumber fifty-one percent (51%) or more of the Condo-
miniums within the Condominium Property which are subject to
Eligible Mortgage Holder Mortgages. "Material amendment" shall
mean, for purposes of this Section 2, any amendments to provi-
sions of this Declaration governing any of the following
subjects:
(a) The fundamental purpose for which the project was
created (such as a change from residential use to a different use).
(b) Assessments, assessment liens and subordination
thereof.
(c) The reserve for maintenance, repair and replacement
of the Common Area.
(d) Property maintenance and repair obligations.
(e) Casualty, liability insurance and fidelity bonds.
(f) Reconstruction in the event of damage or destruction.
(g) Rights to use the Common Area,
(h) Annexation.
(i) Voting.
(j) The percentage interest of the Owners in the
Common Area.
(k) Boundaries of any Living Unit.
(1) The interests in Exclusive Use Areas and other por-
tions of the Common Area.
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(m) Leasing of Condominiums.
(n) Imposition of any right of first refusal or similar
restriction on the right of a Condominium Owner to sell, transfer
or otherwise convey his Condominium.
(o) Any provision which, by its terms, is specifically
for the benefit of first Mortgagees, or specifically confers
rights on first Mortgagees.
An Eligible Mortgage Holder who receives a written request to
approve amendments (including additions) who does not deliver or
mail to the requesting party a negative response within thirty
(30) days, shall be deemed to have approved such request.
Section 3. Each and all of these covenants, conditions and
restrictions shall terminate on December 31, 2030, after which
date they shall automatically be extended for successive periods
of ten (10) years unless the Owners have executed and recorded at
any time within six (6) months prior to December 31, 2030, or
within six (6) months prior to the end of any such ten (10) year
period, in the manner required for a conveyance of real property,
a writing in which it is agreed that said restrictions shall
terminate on December 31, 2030, or at the end of any such ten
(10) year period.
Section 4. Upon the approval in' writing of the Corporation,
pursuant to two-thirds (2/3) of the voting power of each class of
Members of the Corporation, the Owner of any property who desires
to add it to the scheme of this Declaration and to subject it to
the jurisdiction of the Corporation, may file of record a Decla-
ration of Annexation. After conversion of the Class B membership
in the Corporation to Class A membership, the action herein
requiring membership approval shall require the vote or written
consent of (i) two-thirds (2/3) of the voting power of Members of
the Corporation, and (ii) two-thirds (2/3) or more of the voting
power of Members of the Corporation other than Declarant.
Section 5. In the event the Corporation, Declarant or any
Owner shall commence litigation to enforce any of the covenants,
conditions or restrictions herein contained, the prevailing party
in such litigation shall be entitled to costs of suit and such
attorney's fees as the Court may adjudge reasonable and proper.
The "prevailing party" shall be the party in whose favor a final
judgment is entered.
Section 6. The Owner of each Condominium is hereby granted
an easement over all adjoining Living Units and the Common Area
for the purpose of accommodating any minor encroachments due to
engineering errors, errors in original construction, settlement
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or shifting of any building, or any other cause. There shall be
easements for the maintenance of said encroachments as long as
they shall exist, and the rights and obligations of Owners shall
not be altered in any way by said encroachments, settlement or
shifting; provided, however, that in no event shall an easement
for encroachment be created in favor of an Owner if said en-
croachment occurred due to the willful misconduct of any Owner.
In the event any portion of a structure on the Condominium Prop-
erty is partially or totally destroyed and then repaired or re-
built, each Owner agrees that minor encroachments over adjoining
Living Units or Common Area shall be easements for the mainte-
nance of said encroachments so long as they shall exist.
Section 7. In the event that the improvements to be in-
stalled by Declarant to the Common Area have not been completed
prior to the issuance by the California Department of Real Estate
of, a Final Subdivision public Report covering the Condominium
Property, and in the further event that the Corporation is the
obligee under a bond to secure performance by the Declarant to
complete such improvements, then if such improvements have not
been completed and a Notice of Completion filed within sixty (60)
days after the completion date specified in the Planned Construc-
tion Statement appended to the bond, the Board shall consider and
vote upon the question of whether or not to bring action to en-
force the obligations under the bond. If the Corporation has
given an extension in writing for the completion of any such im-
provement then the Board shall consider and vote on said ques-
tion if such improvements have not been completed and a Notice of
Completion filed within thirty (30) days after the expiration of
the extension period. In the event that the Board determines not
to take action to enforce the obligations secured by the bond, or
does not vote on the question as above provided, then, in either
such event, upon petition signed by Members representing not less
than five percent (5%) or more of the total voting power of the
Corporation, the Board shall call a special meeting of the Mem-
bers to consider the question of overriding the decision of the
Board or of requiring the Board to take action on the question of
enforcing the obligations secured by the bond. Said meeting of
Members shall be held not less than thirty-five (35) days nor
more forty-five (45) days following receipt of the petition. At
said meeting a vote of a majority of the voting power of the
Members, excluding the vote of Declarant, to take action to
enforce the obligations under the bond shall be deemed to be the
decision of the Corporation, and the Board shall thereafter
implement the decision by initiating and pursuing appropriate
action in the name of the Corporation.
Section 8. Declarant is undertaking the work of construc-
tion of residential Condominium dwellings, Common Area and inci-
dental improvements upon the Condominium Property. The comple-
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tion of that work, and the sale, rental and other disposal of
said Condominium dwellings is essential to the establishment and
welfare of said Condominium Property as a residential community.
In order that said work may be completed and said Condominium
Property be established as a fully occupied residential community
as rapidly as possible, nothing in this Declaration shall be
understood or construed to:
(a) Prevent Declarant, its contractors or subcontrac-
tors from doing on the Condominium Property whatever is reason-
ably necessary or advisable in connection with the completion of
said work; or
(b) Prevent Declarant or its representatives from
erecting, constructing and maintaining on any part or parts of
the Condominium Property, such structures as may be reasonable
and necessary for the conduct of its business of completing said
work and establishing said Condominium Property as a residential
community; or
(c) Prevent Declarant from conducting on any part of
the Condominium Property its business of completing said work,
and of establishing a plan of Condominium ownership; or
(dj Prevent Declarant from maintaining such sign or
signs on any of the Condominium property as may be necessary for
the sale, lease or disposition thereof; provided, however, that
the maintenance of any such sign shall not unreasonably interfere
with the use by any Owner of his Living Unit or the Common Area;
provided further, Declarant's rights under this Subparagraph (d)
shall terminate at such time as (i) ninety percent (90%) of the
Condominiums have been conveyed to purchasers, or (ii) three (3)
years after recordation of this Declaration, whichever first
occurs.
So long as Declarant, its successors and assigns owns one or
more of the Condominiums established and described herein, De-
clarant, its successors and assigns shall be subject to the
provisions of this Declaration.
Section 9. Each Owner, tenant or occupant of a Condominium
shall comply with the provisions of this Declaration, the Bylaws,
decisions and resolutions of the Corporation or its duly author-
ized representative, as lawfully amended from time to time, and
failure to comply with any such provisions, decisions or resolu-
tions shall be grounds for an action to recover sums due for
damages or for injunctive relief.
Section 10. No breach of any provision of these covenants,
conditions and restrictions shall invalidate the lien of any
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Mortgage made in good faith and for value, but all of said cove-
nants, conditions and restrictions shall be binding upon any
Owner whose title is derived through foreclosure sale, trustee's
sale or otherwise.
Section 11.
.... (a) The Condominium Property is the first phase of a
projected five (5) phase staged condominium development. The
additional phases are planned to be constructed on those portions
of the Real Property described in Recital E above. When com-
pleted, Declarant contemplates that the entire Project will con-
sist of 246 Condominiums. Nothing contained herein, however,
shall require Declarant to complete the future phases of the
planned overall project.
(b) If, within three (3) years of the date of the ori-
ginal issuance by the California Department of Real Estate of the
most recently issued Final Subdivision Public Report covering a
phase of the overall development, Declarant should develop addi-
tional lands within the property referred to above in Recital E,
such additional lands or any portion thereof may be added to and
included within the Condominium Property and the jurisdiction of
the Corporation by action of Declarant without the assent of
Members of the Corporation; provided, however, that the develop-
ment of the additional lands shall be in accord with the plan of
development submitted to the Department of Real Estate prior to
the time a Final Subdivision Public Report is issued in connec-
tion with the Condominium Property. Said annexation may be
accomplished by the recording of a Declaration of Annexation
which requires Owners of Condominiums therein to be Members of
the Corporation, and the right of such Condominium Owners to
exercise voting rights in the Corporation in such annexed prop-
erty shall not commence until the first day of the month follow-
ing close of the first sale of a Condominium by Declarant in that
particular phase of development.
(c) Subject to annexation of additional property as set
forth above:
(i) Declarant hereby reserves for the benefit of
and appurtenant to the Condominiums hereinafter located in
Phases 2, 3, 4 and 5 of the Real Property, and their respec-
tive Owners, nonexclusive easements to use the Common Area in
the Condominium Property pursuant to and in the manner set
forth in this Declaration of Restrictions to the same extent
and with the same effect as if each of the Owners of a Condo-
minium in each of said Phases owned an undivided interest in
the Common Area in the Condominium Property.
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(ii) Declarant hereby grants, for the benefit of
and appurtenant to each Condominium in the first Phase of the
Project, and their Owners, the nonexclusive easement to use
the Common Area in phases 2, 3, 4 and 5, pursuant to the pro-
visions of and in the manner prescribed by this Declaration
of Restrictions to the same extent and with the same effect
as if each of the Owners of a Condominium in the Condominium
Property owned an undivided interest in the Common Area of
the property so annexed.
The reciprocal cross-easements set forth herein shall be effec-
tive as to a particular Phase and as to the Condominium Property
only at such time as said Phase has been annexed by the recording
of a Declaration of Annexation by Declarant and prior to that
time the Condominium Property shall not be affected thereby nor
shall the Owners thereof have such rights in the Common Area
within the Condominium property.
(d) This Section 11 of this Article shall not be
amended without the written approval of Declarant attached to the
instrument of amendment during the period of time set forth in
Subsection 11 (a) above for annexation by Declarant without the
assent of Members of the Corporation.
Section 12. Declarant hereby reserves for the benefit of all
the Real Property easements appurtenant to the Real Property for
ingress, egress and the right to install and maintain gas,
electric, water, sewer, telephone, cable television and other
utilities over, under, upon and across that portion of the
Condominium Property which is shown as CARLSBAD TRACT NO. 74-22,
Map No. 8107 as being for such purposes. This reservation shall
benefit the Real Property regardless of annexation thereof.
IN WITNESS WHEREOF, the undersigned, being Declarant herein,
has executed this instrument the day and year first hereinabove
written.
ALLSTATE SAVINGS AND LOAN
ASSOCIATION
By_
BY.
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