HomeMy WebLinkAboutSP 31A; Papagayo Development; Specific Plan (SP) (6)Recording requestbd by and
when recorded return to:
HOLZWARTH, POWELL & STEIN
18400 Von Karman Avenue
Suite 600
Irvine, California 92715
Attn: Thomas L. Powell, 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 2
5. Association 3
6. Association Property 3
7. Board 3
8. By-Laws 3
9. City 3
10. Common Area 4
11. Common Expenses 4
12. Common Property 4
13. Condominium 4
14. Condominium Building 5
15. Condominium Plan 5
16. Condominium Unit 5
17. County .5
18. Declarant 5
19. Declaration 5
20. Declaration of Annexation..., 5
21. ORE 5
22. Exclusive Use Common Area 6
23. Improvements 6
24. Increment .6
25. Lot 6
26. Member 6
27. Mortgage 6
28. Mortgagee 7
29. Mortgagor 7
30. Notice and Hearing 7
31. Owner 7
32. Project 7
33. Property 7
34. Rules and Regulations 7
35. Application of Definitions 8
ARTICLE II INTRODUCTION TO 4200 HARBOR DRIVE 8
1. General Plan of Development 8
2. Membership in Association 9
3. Development Control 9
4. Non-Liability of Declarant 10
ARTICLE III DESCRIPTION OF THE CONDOMINIUMS 10
1. "Stacked" Condominium Unit 10
2. Presumption of Boundaries of Condominium
Units 11
3. Common Area 11
4. Exclusive Use Common Area 11
5. Undivided Fractional Fee Interest in
Common Area 13
6. Easements Over Common Property 13
7. Easements Over Access Easements 13
8. Components of Condominium Ownership 13
9. Condominium Numbering 13
10. Guest Parking Areas .13
11. Reservation of Easements Over Common
Property for Subsequent Increments 13
ARTICLE IV RESERVATION OF EASEMENTS AND OTHER PROPERTY
RIGHTS IN THE COMMON PROPERTY 14
1. Owners ' Easements 14
2. Limitations on Owners' Easement Rights 14
3. Delegation of Common Property Use Rights...16
4. Easements for Vehicular Traffic 16
5. Easements for Utilities 16
6. Easements for Maintenance of the Common
Property 17
7 . Easements for Drainage 18
8. Easements for Construction and Sales 18
9. Easements for Air Conditioning Compressors.18
10. Easement for Public Service Uses 19
11. Owner Cooperation for Fumigation 19
12. Control and/or Transfer of Title of Common
Property. . 20
ARTICLE V DECLARANT'S RESERVATION OF RIGHTS REGARDING
SUBSEQUENT INCREMENTS 20
1. Introduction 20
2. Right of Declarant to Modify Increments.... 20
3. Amendment to Condominium Plan 21
4. Irrevocable Limited Power of Attorney 22
5. Indemnification of Owners on Exercise of
Power of Attorney 25
6. Mortgage Interests and Other Encumbrances
to Take Subject to Power of Attorney 25
7. Effect on Assessment Liens 25
8. Exclusive Control By Declarant of
Subsequent Increments During
Construction 25
9. Term of Rights and Powers of Declarant 26
ARTICLE VI THE ASSOCIATION 27
1. Membership 27
2. Classes of Membership 27
3. Special Voting Procedures for Election
of the Board 28
4. Record Dates 28
5. Limited Voting Rights for Certain Purposes.28
6. Vesting of Voting Rights 29
7. Suspension of Voting Rights 29
8. Transfer 29
9. Proxies 29
ARTICLE VII POWERS AND DUTIES OF THE ASSOCIATION 30
1. Management Body 30
2. Powers 30
3. Duties 31
4. Discretionary Powers 36
5. Notification by Association of Defects 37
6. Limitations on Contracts 37
7. Delegations of Duties 37
8. Right of Entry for Emergency 38
9. Right of Entry for Repairs 38
10. Limitations on Board Action 38
11. Licenses, Easements and Rights of Way 39
12. New Improvements 39
13. Association Rules and Regulations 40
ARTICLE VIII ASSESSMENTS 41
1. Creation of the Lien and Personal
Obligation of Assessment 41
2. Purpose of Regular Assessments: Levy
and Collection 41
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3.' Regular Assessments - Basis 42
4. Special Assessments 43
5. Compliance Assessments 44
6. Date of Commencement of Regular
Assessments: Due Dates 45
7. Collection of Assessments 45
8. Certification of Payment 45
9. Delivery by Owner 45
10. Delivery of Statement 46
11. Reserves 46
12. Offsets and Waiver Prohibited 46
13. Exempt Property 46
ARTICLE IX EFFECT OF NON-PAYMENT OF ASSESSMENTS: REMEDIES
OF THE ASSOCIATION 47
1. Effect of Non-Payment of Assessments:
Remedies of the Association 47
2. Notice of Delinquent Assessments 47
3. Foreclosure Sale 48
4. Curing of Default 48
5. Cumulative Remedies 48
6. Mortgagee Protection 48
ARTICLE X USE RESTRICTIONS 49
1. Private Dwelling 49
2. Common Property Use 49
3. Conduct Affecting Insurance 49
4. Liability for Damage to the Common
Property 49
5. Signs 50
6. Maintenance of Animals 50
7 . Quiet Enjoyment 50
8. Structural Changes 51
9. Improvements 51
10. Window Coverings 51
11. Hard Surface Flooring 51
12. Commercial Activity 51
13. Parking 52
14. Regulation of Parking 53
15. Vehicle Usage in Association Property 53
16. Compliance With Management Documents 53
17. Solar Heating 53
18. Antennas 54
19. Water Softeners 54
20. Leasing 54
21. Drilling 54
22. Trash 54
23. Special Restrictions Regarding Exclusive
Use Areas 54
24. Declarant's Exemption From Use
Restrictions 55
ARTICLE XI REPAIR AND MAINTENANCE 55
1. Repair and Maintenance by Association 55
2. Repair and Maintenance by Owner 56
3. Maintenance of Public Facilities 57
4. Maintenance of Public Utilities 57
5. Maintenance of Access Easements 57
6 . Maintenance by Declarant 58
ARTICLE XII ARCHITECTURAL CONTROL - APPROVAL 58
1. Exemptions From Architectural Control, 58
: 2. Architectural Control 58
3. Architectural Control Committee 58
4. Meetings of the Architectural Control
Committee 59
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sJ Architectural Approval - Review of Plans
and Specifications 59
6., Decisions of the Architectural Control
Committee 61
7. No Waiver of Future Approvals 61
8. Compensation of Members 61
9 . Variances 61
10. Inspection of Work 62
11. Non-Liability of Architectural Control
Committee Members 62
12. Appeal 62
ARTICLE XIII DAMAGE OR DESTRUCTION TO THE COMMON AREA 63
1. Restoration of Damaged Common Area 63
2. Election by Owners Not to Restore Damaged
Common Area 63
3. Restoration of Damaged Condominium Units...64
4. Architectural Approval of Restoration
Plans; Design and Variance..... 64
5. Distribution of Excess Insurance Proceeds..65
6. Special Assessments for Restoration
Purposes 65
ARTICLE XIV DAMAGE OR DESTRUCTION TO THE ASSOCIATION
PROPERTY 65
1. Election to Restore Association Property... 65
2. Election Not to Restore Association
Property 66
3. Excess Insurance Proceeds..... 66
ARTICLE XV CONDEMNATION 67
1. Distribution of Awards 67
2. Distribution of Awards - Association
Property 67
3. Board of Directors as Attorney-in-Fact 67
ARTICLE XVI COVENANT AGAINST PARTITION 67
1. General Covenant Against Partition 67
2. Judicial Partition of the Project 67
3. Board of Directors' Power of Sale in
Event of Judicial Partition 68
ARTICLE XVII INSURANCE 68
1. Required Insurance Coverage 68
2. Optional Insurance Coverage ...70
3. Notice of Cancellation of Insurance 70
4. Review of Coverage 70
5. Waiver by Owners 70
6. Premiums, Proceeds and Settlement 70
7. Rights and Duties of Owners to Insure 71
8. Trustee for Policies 71
9. Mortgage Clause 71
10. Compliance With Requirements of FHLMC,
FNMA and VA/FHA ... 7 2
ARTICLE XVIII MORTGAGEE PROTECTION 72
1. Mortgagee Protection Provisions 72
2. Violation of Mortgagee Protection
Provisions 76
3. Effect of Amendments 76
: 4. Amendments to Conform With Mortgagee
Requirements. 76
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ARTICLE XIX ENFORCEMENT OF BONDED OBLIGATIONS 77
1., Enforcement of Bonded Obligations 77
ARTICLE XX ANNEXATION OF ADDITIONAL PROPERTY 78
1. Incremental Development of the Project 78
2. Annexation Pursuant to General Plan 78
3. Annexation Pursuant to Approval 78
4. Declaration of Annexation...... 78
5. Effective Date of Annexation 79
6. Right of De-Annexation.... 79
7. Amendments to Declarations of Annexation...79
ARTICLE XXI GENERAL PROVISIONS 80
1. Enforcement 80
2. Severability 81
3. Term 81
4 . Construction 81
5. Singular Includes Plural 81
6. Amendments 82
7 . Encroachments 83
8. Notices 84
9. Attorneys ' Fees 84
EXHIBITS
EXHIBIT "A"
EXHIBIT "B"
EXHIBIT "C"
EXHIBIT "D"
Description of the Property
Description of the Annexation Property
Description and Depiction of the Access Easements
Depiction of the Open Space Easement Area
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CCR897 10725.004 091790
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
, 1990, by MARLBOROUGH DEVELOPMENT CORPORATION, a
California corporation (hereinafter referred to as the
"Declarant").
WI.TNESSETH:
A. Declarant owns that certain real property located
in the City of Carlsbad, County of San Diego, State of Cali-
fornia, more particularly described on Exhibit "A" attached
hereto (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. 4200 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.
f
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 certain non-exclusive easements for ingress, egress and
access. The Access Easements are depicted and described on
Exhibit "C" attached hereto.
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
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 tc 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;
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(tf) "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 to any real property (and to all Improvements
constructed thereon) hereafter acquired in fee or by easement by
the Association 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."
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. 9. "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.
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SectioJi 10. "Common Area" shall mean and refer to real
property and to all Improvements constructed on such real prop-
erty from time to time, but excepting therefrom all of the Condo-
minium Units, as defined in Section 1351(b) of the California
Civil Code and in Article III described hereinbelow, which may
now or hereafter be constructed on such real property. The Common
Area in the Property includes all of the real property described
in Paragraph A of the Recitals (and all of the Improvements con-
structed thereon from time to time) excepting all Condominium
Units. Portions of the Annexation Property may be designated as
additional Common Area in a Declaration of Annexation recorded in
the Official Records of San Diego County, California, in accord-
ance 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 incurred by the Association for
the benefit of the Owners pursuant to the provisions of this
Declaration. 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 the Common Area and to the Asso-
ciation Property. The Common Property shall also mean and refer
to any additional Association Property and/or additional Common
Area so designated and described in any Declaration of Annexation
recorded in the Official Records of San Diego County, California,
in accordance with the Article herein ^nMtled "Annexation of
Additional Property."
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
wdth an undivided fractional fee interest in the Common Area on
the Lot upon which the Condominium Unit is located.
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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
an instrument 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
Increments of the Project.
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 Project. The Condominium
Units located in the first Increment of the Project are more
particularly described in the Article herein entitled
"Description of the Condominiums" and in the Condominium Plan.
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
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 recorded for the purpose of
annexing all or a portion of the Annexation Property, in
accordance with the previsions cf this Declaration, thereby
subjecting such Property to the Protective Covenants set forth in
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.
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Section 22. "Exclusive Use Common Area" shall mean and
refer to those portions of the Common Area over which exclusive
easements are reserved for the use and benefit of Owners of par-
ticular Condominium Units. Exclusive Use Common Area is more
specifically described in the Article herein entitled "Descrip-
tion of Condominium," and is shown and described in the Condo-
minium Plan.
Section 23. "Improvements" shall mean and refer to all
structures and appurtenances thereto of every kind, including,
but not limited to, Condominium Buildings, parking structure,
open parking areas, swimming pools, spas, cabanas, street lights,
entry gates, pavement, sidewalks, driveways, walls, fences, deco-
rative or informative signs, retaining walls, mail kiosks, common
trash receptacles, if any, screens, private utility connections,
poles, signs, all Common Area landscaping and related 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, install-
ing, altering or planting, as the case may be, any spas, patio
covers, deck 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
(101).
Section 24. "Increment" shall mean and refer to a Lot,
or portion thereof, together with any Condominium Units and any
other Improvements located thereon which are subject to a Final
Subdivision Public Report issued by the DRE. Increments 1 and 2
are generally depicted on the Condominium Plan recorded on the
Property.
Section 25. "Lot" shall mean and refer to a plot of
land which is separately described and numbered or lettered on a
recorded subdivision map.
Section 26. "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 terrr. "Owner."
Section 27. "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
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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 28. "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 29. "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 30. "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 31. "Owner" shall mean and refer to the record
Owner, or Owners if more than one (l)f 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 32. "Project" shall mean and refer collec-
tively to the Property, all Condominium Units now or hereafter
constructed on the Property, any Association Property and to any
portion(s) of the Annexation Property which is/are annexed in ac-
cordance with the applicable provisions of this Declaration.
Section 33. "Property" shall mean and refer to all of
that certain real property described in Paragraph A of the Reci-
tals hereinabove, together with all Improvements constructed
thereon.
Section 34. "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.
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Section 35. Application of Definitions. The aforesaid
definitions shall be applicable throughout this Declaration, and
to any supplements, restatements and/or amendments hereto filed
or recorded pursuant to the provisions of this Declaration, and
to any Declaration of Annexation for a subsequent Increment,
unless otherwise indicated or the context shall prohibit such
application.
ARTICLE II
INTRODUCTION TO 4200 HARBOR DRIVE
Section 1. General Plan of Development. 4200 Harbor
Drive will be developed as a condominium project, as defined in
Section 1351(f) of the California Civil Code. If completed as
planned, the Project will be developed in three (3) Increments
and will consist of approximately one hundred thirty (130) Condo-
miniums and various recreational amenities. The 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 seq.,
and in substantial conformance with the development plans
submitted to and approved by the City and/or DRE. The Association
will maintain the Common Property and will be the management body
for the Project, as provided herein.
(a) Description of Increment 1. As presently
planned, the first Increment of the Project will consist of
approximately forty-three (43) Condominiums and appurtenant
Common Area Improvements. The Condominium Units will be com-
pleted prior to the first close of an escrow for the sale of
a Condominium in the first Increment. 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 Increment will receive title to
their respective Condominium Units, various easements (ex-
clusive and nonexclusive, as set forth in this Declaration),
an undivided interest in the Common Area portions of the
Property (as more particularly defined in Article III below)
and a membership in the Association.
(b) Description of Subsequent Increments. As
presently planned, the subsequent Increments cf 4200 Harbor
Drive and the Condominium Buildings and Condominium Units in
such Increments will be of similar construction and
appearance as the Condominium Units in the first Increment.
The Owners in subsequent Increments will receive title to
: their respective Condominium Units, various easements (ex-
clusive and nonexclusive, as set forth in this Declaration
or a Declaration of Annexation recorded on said Increment),
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an undivided interest in their respective Common Area, and a
membership (in the Association. There is no assurance that
Increments 2 and 3 will be completed as proposed.
(c) Commencement of Rights and Obligations
Regarding Subsequent Increments. Each and all of the powers
and duties of the Association (e.g., the maintenance of
Common Area) and each and all of the rights and obligations
of an Owner created by this Declaration (e.g., the obliga-
tion to pay assessments, and the right to vote) shall
commence as to any subsequent Increment and all Condominium
Units located therein upon the first day of the month
following: (a) the first close of an escrow for the sale of
a Condominium in such Increment to a bona fide purchaser; or
(b) the occupancy of a Condominium in such Increment
pursuant to a rental or lease agreement with Declarant or
its authorized agent. Notwithstanding the foregoing, the
rights and powers reserved by Declarant regarding subsequent
Increments as set forth in Article V hereinbelow shall
remain in full force and effect for the term specified in
said Article V.
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 th.e Common Property within the Proj-
ect, in accordance with this Declaration, the By-Laws and Rules
and Regulations adopted by the Board.
Section 3. 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 or controlled by Declarant, (c) to construct
additional Improvements on any portion of the Project owned or
controlled by Declarant, and/or (d) to otherwise control all as-
pects of constructing the Improvements in the Project, and of
marketing and conveying Condominiums in the Project. In further-
ance thereof, Declarant hereby reserves, unto itself and its
successors and assigns for a period of time not to exceed seven
(7) years from the first close of escrow for the sale of a
Condominium in the Project to a retail purchaser pursuant to a
Final Subdivision Public Report issued by the ORE: (a) a non-
exclusive 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
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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 Condominiums in the Project. Without limiting the
generality of the foregoing, Declarant hereby expressly reserves
a nonexclusive right to use the Access Easements so long as
Declarant owns any interest in the Property and/or the Annexation
Property.
Section 4. 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
Increment of the Project. The purpose of this Article is merely
to describe the legal relationship between the first and any
subsequent Increments of the Project in the event all or any of
such Increments shall be constructed.
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, Increment 1 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 element 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 plar.es, 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 Condominium Building so described and the airspace so
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encompassed, alltwindows and doors in said Condominium Unit (in-
cluding all locks, handles, latches, screens and weather-
stripping), the forced air heating unit, the air conditioning
compressor, if any, all built-in appliances and fixtures and the
firebox portion of the fireplace in or servicing the Condominium
Unit, if any, but does not include any portions described as
Common Area in Section 3 below.
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 Condominium Plan thereof,
shall be conclusively presumed to be its boundaries, rather than
the metes and bounds (or other description) expressed in this
Declaration, the Condominium Plan or instrument of conveyance,
regardless of settling or lateral movement of the Condominium
Building and regardless of minor variances between the boundaries
shown in the Condominium Plan, in the deed and/or in this Declar-
ation, and the actual boundaries of the Condominium Building.
Section 3. Common Area. A freehold estate consisting
of an undivided fractional fee interest in the Property is
described and referred to herein as the "Common Area." The Common
Area includes all of the real property described in Paragraph A
of the Recitals, and all Improvements constructed thereon from
time co time, including, but not limited to, the subterranean
parking structure, the Condominium Buildings (excepting therefrom
the Condominium Units in Increment 1 and any Condominium Units
constructed in Increment 2), together with all bearing walls,
columns/ beams, floors, roofs, slabs, foundations, chimneys,
fences, exterior stairs and landings, elevators, reservoirs,
tanks, pumps, central water heaters, private on-site sewer later-
als and lines, common mailbox structures, irrigation equipment
and other central services,' pipes, ducts, flues, chutes, con-
duits, 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, any recreational amenities and all
landscaping located en such 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
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to which such Arfeas are appurtenant are identified in the Condo-
minium Plan. The various types of Exclusive Use Common Areas are
described as follows:
(a) Deck Area. The deck area bounded by and
contained within the exterior finished surfaces of the deck
perimeter walls, the deck railings, walls, and doors,
identified on the Condominium Plan by the letter "D"
followed by its respective Condominium Unit number is hereby
assigned to such Condominium Unit as shown in the Condomin-
ium Plan.
(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 space 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. The storage area identified on
the Condominium Plan by the letter "S" followed by its
respective Condominium Unit number is hereby assigned to
such Condominium Unit as shown in the Condominium Plan.
(e) Air Conditioning Condensor Unit. The unit for
the air conditioning condenser identified on the Condominium
Plan by the letters "A/C" followed by its respective
Condominium Unit number is hereby assigned to such Condo-
minium 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 deck 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 any exterior staircase or on his deck 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.
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Section* 5. Undivided Fractional Fee Interest in Com-
mon Area. The interest in the Common Area which shall be conveyed
with each respective Condominium Unit in Increment 1 is a
one/eighty-sixth (l/86th) undivided fractional fee interest. The
above respective undivided fractional fee interest established
and to be conveyed with the respective Condominium Units, as in-
dicated above, cannot be diminished. Declarant, for and on behalf
of itself, and its successors, assigns and grantees, covenants
and agrees that neither the Condominium Unit nor the respective
undivided fractional fee interest in the Common Area shall be
separately conveyed or encumbered. An otherwise valid conveyance
or encumbrance referring only to the Condominium Unit shall also
convey or encumber the respective undivided fractional fee inter-
est 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, save and except those portions of the Common Area set
aside as Exclusive Use Common Area as provided for .in this
Declaration, and subject to the rights reserved in favor of
Declarant as set forth in this Declaration.
Section 7. Easements Over Access Easements. Each
Owner shall have a nonexclusive easement appurtenant to his
Condominium for pedestrian and vehicular ingress, egress and
access on, over and across the Access Easements.
Section 8. Components of Condominium Ownership. Each
Condominium includes: (a) a separate interest in a Condominium
Unit, as defined in Section 1 hereinabove; (b) all easements, ex-
clusive and nonexclusive, appurtenant to the respective Condomin-
ium Unit; (c) a one/eighty-sixth (l/86th) undivided fractional
fee interest in the Common Area; and (d) a membership in the
Association.
Section 9. Condominium Numbering. The forty-three
(43) individual Condominium Units which are hereby established
and which shall be individually conveyed are described and num-
bered on the Condominium Plan.
Section 10. Guest Parking Areas. Except as otherwise
provided in this Declaration, any parking spaces, shown and
designated on the Condominium Plan by the letters "GP", shall be
used for guest parking. All other parking spaces shown on the
Condominium Plan may be assigned by Declarant to Condominums
located in a subsequent Increment.
Section 11. Reservation of Easements Over Common Pro-
perty for Subsequent Increments. Declarant hereby reserves the
right to grant easements over the Common Property in this first
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increment of the^Project (except any portions of the Common Area
set aside as Exclusive Use Common Area and except for any por-
tions subject to the rights reserved by Declarant as set forth in
this Declaration) in favor of each Owner of a Condominium in a
subsequent Increment at such time as the rights and obligations
regarding such Increment commences pursuant to Article II,
Section l(c) hereinabove, and the Owners of the Condominiums de-
scribed in this Declaration shall automatically obtain nonexclu-
sive easements over all Common Property which is a part of such
subsequent Increment, except any portions of the Common Area set
aside as Exclusive Use Common Area or subject to rights reserved
by Declarant.
ARTICLE IV
RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE COMMON PROPERTY
Section 1. Owners' Easements. Subject to the rights
reserved by Declarant as provided in this Declaration, and
further subject to the limitations set forth in Section 2 below,
every Owner shall have a nonexclusive right and easement of
access, use and enjoyment in and to the Common Property, except
those portions of the Common Area set aside as Exclusive Use
Common Area. Said right and easement shall be appurtenant to and
shall pass with title to every Condominium.
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;
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(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;
(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
Commcn Property for the purpose of allowing an Ownei 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
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(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
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
grants,to each and every Owner a nonexclusive easement appurte-
nant to his Condominium over the Access Easements and over any
driveways 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.
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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.
(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. Subject to the rights reserved by Declarant as set
forth in this Declaration, there is hereby created, granted and
reserved a nonexclusive casement in favor of the Association £or
ingress, egress and access on, over and across all portions of
the Project as reasonably required by the Association to perform
its maintenance obligations set forth in this Declaration. In the
event it becomes necessary for the Association to enter upon any
Condominium 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
-17-
accordance with tfhe 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. Not-
withstanding 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
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 deck 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
first .close of an escrow for the sale of a Condominium in the
Project to a retail purchaser pursuant to a Final Subdivision
Public Report issued by the DRE, 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. Nothing in this
Declaration shall be interpreted or construed to limit or
restrict Declarant's rights to use the Access Easements so long
as Declarant shall own any interest in the Property and/or the
Annexation Property.
Section 9. Easements for Air Conditioning Com-
pressors. As to any air conditioning compressor which is located
on a portion of the Common Area (including, but not limited to,
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
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for ingress/ egress and access on and over the Common Area to
maintain, repair and replace his respective air conditioning
compressor.
Section 10. 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
of the Common Property for purposes of serving the health and
welfare of all Owners in the Project.
Section 11. 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:
(%\ P«?rsoP-sl delivery of 3 ccpy 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
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(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 12. 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)
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, the Association Property, if any, shall be con-
veyed to the Association free and clear of all encumbrances and
liens, except property rights in and to the Association Property
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 con-
currently with the first conveyance of a Condominium in the
respective Increment of the Project in which such Association
Property is located.
ARTICLE V
DECLARANT'S RESERVATION OF RIGHTS
REGARDING SUBSEQUENT INCREMENTS
Section 1. Introduction. As indicated in Article II
above,.Declarant presently plans to develop the Project in three
(3) Increments, and to develop the Property as the first and
second Increments. In furtherance of said proposed development
plan, Declarant hereby creates and reserves for itself and its
successors and assigns, the various rights and powers pertaining
to the design, development, construction, marketing and sale or
leasing of Condominiums or other Improvements in any subsequent
Increment of the Project. Notwithstanding the foregoing, nothing
in this Article or otherwise in this Declaration shall be
interpreted or construed to require Declarant to construct any
subsequent Increment whatsoever. Furthermore, nothing in this
Article shall be interpreted or construed to restrict or
otherwise limit the generality of ar.y other rights or powers
created and reserved by Declarant elsewhere in this Declaration.
Section 2. Right of Declarant to Modify Increments.
(a) Modifications. Subject to the restrictions
and limitations set forth in Subparagraph (b) below, Declar-
: ant hereby reserves the right, in its sole discretion, to
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redesign, reconfigure and/or otherwise modify any subsequent
Increment, or portion thereof, including, but not limited
to, the following:
(i) Alter the vertical and/or horizontal
boundaries of any Improvement;
(ii) Adjust the location and/or
configuration of any Common Property, the Condominium
Units and/or the Exclusive Use Common Area; or
(iii) Effectuate nominal deviations to a
Condominium Plan which result during the course of
construction of the Improvements.
(b) General Restrictions on Modifications. The
rights of Declarant to modify an Increment shall be subject
to the following restrictions:
(i) In no event shall the number of
Condominum Units be changed from that shown on a
Condominium Plan;
(ii) In no event shall the modification of
an Increment have the effect of causing a proration of
Regular Assessments, as it is Declarant's express
intent that Regular Assessments be levied on an equal
basis against all Condominiums subject to the levy of
Assessments;
(iii) The modification of any portion of the
Project shall in no event physically modify or change
any Condominium Units which, as of the date of such
modification, are the subject of an agreement of sale
or are not owned by Declarant, unless the purchaser or
Owner of such a Condominium Unit shall consent to such
modification in writing; and
(iv) In no event shall the modification of
the Project cause any Condominium Unit to be decreased
in size so as to be smaller than ninety percent (90%)
of the smallest Condominium Unit located in Incre-
ment 1.
Section 3. Amendment to Condominium Plan. Each Owner
of a Condominium in the Project hereby acknowledges and agrees
that if the modification of any subsequent Increment makes it
necessary to amend or re-record a Condominium Plan (including,
but not limited to, • any ar.cnd~.ant necessary to cause such
Condominium Plan to be consistent with the Improvements actually
constructed), or in the event that any subsequent Increment is
not completed as proposed, Declarant is hereby authorized to
prepare, execute and record on behalf of the Owners such an
amendment to the respective Condominium Plan. All costs and
expenses associated with the preparation and recordation of the
Condominium Plan shall be borne by Declarant, at Declarant's sole
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cost and expense) Each Owner of a Condominium in the Project, by
accepting a deed to a Condominium, shall be deemed to have
irrevocably appointed Declarant as such Owner's attorney-in-fact
to effect the recordation of the Condominium Plan, as more
specifically set forth in Section 4 hereinbelow. An amendment of
the Condominium Plan by Declarant pursuant to this Section shall,
when recorded, have the effect of: (a) relocating the Common Area
and any Exclusive Use Common Area therein and each Unit to the
extent set forth on the amendment, (b) vesting in each Owner
(including Declarant with respect to any unsold Units) an
undivided interest (to the extent of each Owner's prorata
interest in Common Area) in Common Area as depicted on the
amendment, (c) divesting each Owner (except Declarant) of all
right, title and interest to any Unit, other than such Owner's
Unit as depicted on the amendment, (d) vesting in each Mortgagee
an undivided interest (to the extent of the interest in the
Common Area of the Owner of the Unit which is the subject of such
Mortgage) in the Common Area as depicted on the amendment, and
(e) divesting each Mortgagee of all right, title and interest to
each Condominium (other than the Owner's Condominium which is the
subject of such Mortgage or other encumbrance) as depicted on the
amendment. The adjustment of any Mortgage in accordance with the
provisions of this Section shall not affect the priority of any
such Mortgage with respect to any other matters affecting title
to the Unit which is the subject of such Mortgage.
Section 4. Irrevocable Limited Power of Attorney.
Each Owner of a Condominium in the Project, by accepting a deed
to a Condominium hereby irrevocably appoints Declarant as his
attorney-in-fact, for himself and each of his Mortgagees,
optionees, grantees, licensees, trustees, receivers, lessees,
tenants, judgment creditors, heirs, legatees, devisees,
administrators, executors, legal representatives, successors and
assigns, whether voluntary or involuntary, and hereby grants to
Declarant an irrevocable limited power of attorney coupled with
an interest for Declarant to act as his attorney-in-fact in
connection with any modification to all or any portion of a
subsequent Increment. Each Owner hereby acknowledges and agrees
that this irrevocable limited power of attorney is: (1) retained
for the benefit of the Declarant and not the Owner; (2) created
to secure the Owner's performance cf a duty to the Declarant
pursuant to this Article V; and (3) created by Owner's acceptance
of a deed to a Condominium and as part of the consideration for
the purchase and sale of a Condominium. Based on the foregoing,
each Owner further acknowledges and agrees that this irrevocable
limited power of attorney is "coupled with an interest" and,
pursuant to Section 2356 of the California Civil Code, as same
may be amended from time to time, may not be terminated by: (1)
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the Owner's revocation of such limited power of attorney; (2) the
Owner's death; or (3) the Owner's incapacity to contract. In
furtherance thereof and subject to the limitations and restric-
tions set forth in this Article, Declarant shall have the right
and power as a duly authorized attorney-in-fact to perform any of
the following actions:
(a) To prepare, execute, acknowledge and record
any map or record of survey required or permitted by the
provisions of the Subdivision Map Act of the State of
California in effect on the date of the recording of this
Declaration, and as thereafter amended, and any ordinances,
rules and regulations of the City, and any other
governmental entities and authorities having jurisdiction
over the Project in effect on the date of the recording of
this Declaration, and as thereafter enacted or amended, or
which may be required or permitted by any title insurer,
and, in connection therewith, to perform all conditions,
undertake any obligations and execute all agreements and
documentation required or permitted by any federal, State
and local governmental entities and authorities; to appear
before any such governmental entities and authorities; and
to execute, acknowledge and deliver any improvement agree-
ments and bonds, and post deposits securing the performance
of any such conditions and obligations;
(b) As referenced in Section 3 above, to prepare,
execute, acknowledge and record any amendment to a Condo-
minium Plan, including, without limitation, any amendments
necessary to cause such Condominium Plan to conform with the
Improvements as actually built, which may be required or
permitted by the laws of the State of California as in
effect on the date of the recording of this Declaration, as
thereafter enacted or amended, and any ordinances, rules and
regulations of the City, and any other governmental entities
and authorities having jurisdiction over the Project as in
effect on the date of the recording of this Declaration, and
as thereafter enacted or amended, or which may be required
or permitted by any title insurer, and, in connection there-
with, to perform all conditions* undertake any obligations
and execute all agreements and documentation required or
permitted by any federal, Stats and local governmental
entities and authorities; to appear before any such govern-
mental entities and authorities; and to execute, acknowledge
and deliver any improvement agreements and bonds, and post
deposits securing the performance of any such conditions and
obligations;
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(c) To prepare, execute, acknowledge and file for
approval any application for zoning or set back changes or
variance or conditional use permits, or any other permits or
reports required or permitted by the laws of the State of
California as in effect on the date of the recording of this
Declaration, as thereafter enacted or amended, and any
ordinances, rules and regulations of the City, and any other
governmental entities and authorities having jurisdiction
over the Project as in effect on the date of the recording
of this Declaration, and as thereafter enacted or amended,
or which may be required or permitted by any title insurer,
and, in connection therewith, to perform all conditions,
undertake any obligations and execute all agreements and
documentation required or permitted by any federal, State
and local governmental entities and authorities; and to
execute, acknowledge and deliver any improvement agreements
and bonds, and post deposits securing the performance of any
such conditions and obligations;
(d) To make applications for any property reports
or public reports or amendments thereto, or exemption from
the requirements therefor required or permitted by federal
and State statutes, rules and regulations relating to the
sale, lease, transfer or other disposition of subdivided
lands, and, in connection therewith, to perform all
conditions, undertake any obligations and execute all
agreements and documentation required or permitted by any
feeral, State and local governmental entities and
authorities; to appear before any such governmental entities
and authorities; and to execute, acknowledge and deliver any
improvement agreements and bonds, and post deposits securing
the performance of any such conditions and obligations;
(e) To deliver any public reports or property
reports, or amendments thereto, obtain receipts and offer
and administer rescission rights required by law;
(f) To prepare, execute, acknowledge and file for
approval any registration or application for any permit,
approval, exemption, ruling or entitlement, which
registration or application is required or permitted
pursuant to any law or regulation in effect as of the date
of the recording of this Declaration, and as, hereafter
enacted or amended by any federal, State and local
governmental entities and authorities, and, in connection
therewith, to perform all conditions, undertake any
obligations and execute all agreements and documentation
required or permitted by such governmental body and by any
such laws and regulations; to appear before any such govern-
mental bodies, and to execute and deliver any improvement
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agreements And bonds, and post deposits securing the per-
formance of any such conditions and obligations; and do all
other things now or thereafter permitted or required by any
such governmental body and any such laws and regulations;
(g) To prepare, execute, acknowledge and record
any deeds, waivers, releases, reconveyances or other
documentation which may be permitted or required to clear
title to any constructed or unconstructed Condominium Units
in the Project; and
(h) To do any and all things necessary or
desirable under the circumstances to effect and accomplish
the purposes of this Article.
Section 5. Indemnification of Owners on Exercise of
Power of Attorney. Declarant shall indemnify and hold each Owner
free and harmless from any liability, including attorneys' fees,
which are incurred in connection with the exercise by Declarant
of the power of attorney set forth in Section 4 above.
Section 6. Mortgage Interests and other Encumbrances
to Take Subject to Power of Attorney. The acceptance or creation
of any Mortgage or other encumbrance, whether or not voluntary,
created in good faith or given for value, shall be deemed to be
accepted or created subject to each of the terms and conditions
of the power of attorney described in Section 4 hereof.
Section 7. Effect on Assessment Liens. Any lien
recorded against a Condominium to enforce the collection of
assessments which were levied prior to the recording of an
amendment to any Condominium Plan pursuant to this Article shall
be reqonveyed and released with respect to each Condominium
depicted on such amendment other than the Condominium against
which the lien was recorded. In the event the Condominium against
which the lien was recorded was effected by the amendment, the
lien shall be interpreted and construed to affect the Condominium
as effected by such amendment.
Section 8. Exclusive Control by Declarant of
Subsequent Increments During Construction. Until the first close
of an escrow for the sale of a Condominium in a subsequent
Increment, if ever, Declarant shall have each and all of the
exclusive rights and powers set forth below relative to such
Increment. Declarant, in its sole discretion, may transfer or
assign for such period of time and, subject to such ccrrditicns as
Declarant may deem appropriate, any or all of such rights and
powers to its successors, assigns, contractors and/or agents.
Such rights and powers include the following:
(a) To construct any and all Improvements on such
: Increment as Declarant in its sole discretion deems
appropriate;
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(b)< To alter or otherwise modify the style, size,
color or appearance of any Improvements constructed by
Declarant;
(c) To construct such screens, walls, fences or
other barriers as may be necessary to prevent trespassing
into the subsequent Increment prior to the commencement of
the rights and obligations of such Increment pursuant to
Article II, Section l(c) hereinabove;
(d) To utilize ingress, egress and access on and
over any portion of the Project (and over the Access Ease-
ments) to exercise any of its rights hereunder;
(e) To perform routine maintenance and/or to
repair or replace any improvements located on such Incre-
ment;
(f) To establish, grant and/or reserve additional
licenses, easements and rights-of-way in favor of Declarant
and/or any public or private utility companies as may be
reasonably necessary for the development, maintenance and/or
proper operation of the Project; and
(g) To otherwise control all aspects of
constructing, maintaining, marketing and selling or leasing
the Condominiums constructed on such Increment.
Each Owner hereby acknowledges and agrees that
Declarant shall have each and all of said rights and powers,
together with all other rights and powers set forth in this
Article and in this Declaration, and covenants and agrees not to
obstruct or in any way interfere with the exercise of such rights
and powers by Declarant, its successors, assigns, employees,
contractors and/or agents.
Section 9. Term of Rights and Powers of Declarant.
The rights and powers created, established and/or reserved by
Declarant as set forth in this Article shall remain in full force
and effect as to any subsequent Increment until the earlier of:
(a) such time as Declarant no longer owns any Condominium Units
in such Increment; or (b) seven (7) years from the date of the
first close of an escrow for the sale of a Condominium in the
Project to a retail purchaser pursuant to a Final Subdivision
Public Report issued by the DRE. Thereafter, all of the rights
and powers set forth in only this Article shall cease and
terminate ar.d be of no further force or effect. Notwithstanding
the foregoing, if a subsequent Increment is a portion of a Lot
(e.g. Increment 2), and if Declarant shall abandon the Project by
giving written notice thereof to the Association or if there is a
cessation of labor by Declarant for at least one (1) year after
commencement of construction on such Increment (save and except
for reasons beyond Declarants' reasonable control, i.e., strikes,
Acts of God, material shortages, etc.), then Declarants' rights
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and powers relatfive to such Increment shall cease and terminate
and the Owners of Condominiums in the Project may make such use
of such Increment as reasonably determined by the vote of a
majority of the Owners other than Declarant. All costs incurred
to convert such Increment to the use approved by the Owners shall
be levied as a Special Assessment against all Condominiums in the
Project as provided hereinbelow. Thereafter, such Increment shall
be maintained by the Association on the same basis as other
similar Common Areas in the Project.
ARTICLE VI
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. Classes of Membership. 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. The Association shall recognize the vote
cast by a co-Owner, unless another co-Owner shall cast a
conflicting vote in which case both votes shall be null and
void.
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:
(1) The second anniversary of the first
close of an escrow for the sale of a Condominium to a
retail purchaser pursuant to a Final Subdivision Public
Report issued by the ORE;
(2) The fourth anniversary of the first
close of an escrow for the sale of a Condominium to a
retail purchaser pursuant to a Final Subdivision Public
: Report for Increment 1; or
(3) December 31, 1996.
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Any action taken by the Association which must have the
approval of the membership of the Association before being
undertaken shall require the vote or written assent of both a
majority of the Class 3 membership as well as a majority of the
Class A membership, BO long as there are two (2) outstanding
classes of 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 Article contained herein entitled
"Enforcement of Bonded Obligations," shall only require a
majority of the voting power of the Owners other than Declarant.
Section 3. Special Voting Procedures for Election of
the Board. The Board shall be entitled to solely elect a majority
of the members of the Board until the first to occur of the
following events:
(a) The election of the Board immediately
following the sale, rental or lease by Declarant of at least
one hundred (100) Condominiums in the Project; or
(b) December 31, 1992.
In the event Declarant shall not have sold, rented and/or leased
at least one hundred (100) Condominiums by December 31, 1992,
Declarant's right to elect a majority of the members of the Board
shall be automatically extended until the aforesaid number of
Condominiums have been sold, rented and/or leased, but in no
event later than December 31, 1994.
Notwithstanding the foregoing, the Class A Members
shall be entitled to elect at least forty percent (40%) of the
members of the Board, so long as there are two (2) classes of
membership outstanding in the Association.
Section 4. Record Dates. For the purpose of
determining Members entitled to notice of any meeting, to vote,
or to exercise any other rights in respect of any lawful action,
the Board may fix, in advance, record dates as provided in the
By-Laws.
Section 5. Limiting Voting Rights for Certain
Purposes. Declarant shall be entitled to the limited voting
rights set forth in this Section for -all Condominiums which: (i)
are located in an Increment which is only a portion of a Lot;
(ii) are shewn or. the Condominium Plan recorded on such Lot; and
(iii) have not been completed so as to be available for sale or
occupancy. Such voting rights shall be limited solely to the
following matters: (i) any decisions regarding condemnation or
eminent domain proceedings regarding the Project as referenced in
Article XV hereinbelow; and (ii) any decisions regarding Damage
or Destruction to the Common Area and/or Damage or Destruction to
the Association Property as referenced in Articles XIII and XIV
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hereinbelow. Declarant shall be entitled to one (1) vote for
three (3) unbuilt and/or incomplete Condominium Units which
satisfies all of the aforesaid conditions. If the number of
unbuilt and/or incomplete Condominium Units is not equally
divisible by three (3), the number of votes which may be cast by
Declarant under this Section shall be rounded down to the nearest
whole number. Upon the completion of the Condominium Units, the
voting rights attributable to such Condominiums shall be as set
forth in Section 2 above.
Section 6. Vesting of Voting Rights. Except as
otherwise provided in Section 5 above, the voting rights attrib-
utable to any given Condominium in the Project shall not vest
until the Assessments provided for hereinbelow have been levied
by the Association against said Condominium in accordance with
this Declaration.
Section 7. Suspension of Voting Rights. The Board
shall have the authority to suspend the voting rights of any Mem-
ber 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 obligation to pay the Assessments
provided for in this Declaration.
Section 8. 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 9. Proxies. Votes may be cast in person or by
proxy. Proxies must bs 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
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
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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 or written
ballot. The 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 VII
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";
(d) Grant easements or licenses, where necessary,
for utilities and sewer facilities over, on and across the
Common Property to serve the Project to any public agency,
-30-
governmental! entity or utility for purposes consistent with
the use and enjoyment of the Common Property.
(e) 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;
(f) Enter into an agreement with any other home-
owners association whose members, owners and/or residents
use all or any portion of the Access Easements regarding the
joint use, operation and maintenance of the Access Easements
and any related Improvements (e.g., entry gates), and in the
absence of any such agreement enforce the rights of all
Owners, the members of their families, their tenants,
lessees, guests and invitees to use the Access Easements;
(g) Enter into a subsidy or maintenance agreement
with Declarant whereby the Regular Assessments are tempor-
arily reduced;
(h) 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;
(i) 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;
(j) Pay for reconstruction of any portion of the
Common Property damaged or destroyed;
(k) Delegate its powers;
(1) Adopt reasonable Rules and Regulations con-
cerning the maintenance, improvement, use and/or occupancy
of the Project;
(m) Enter into any Condominium when necessary in
connection with maintenance or construction for which the
Association is responsible; and
(n) 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 bo 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-
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ty, and, if hot 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) Own, maintain and repair all portions of the
Common Property (and any Common Property which is annexed
into the Project) in a neat, clean, safe, attractive,
sanitary and orderly condition at all times. Without
limiting the generality of the foregoing, the Association
shall be responsible for the following:
(i) maintaining the private streets and
drives within the Project, if any, 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;
(ii) Contributing to or sharing in the cost
of the maintenance of the Access Easements in accordance
with the terms of any agreement which may be entered
into with an adjacent homeowners association which also
uses all or any portion of such Easements;
(iii) maintaining all natural slopes, (in-
cluding performing appropriate brush and weed abatement)
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;
(iv) Cause a yearly inspection to be made,
by a licensed engineer, of all drainage devices located
within the Project; and
(v) Maintain all Open Space Easement Areas
and public access easement as shown on Exhibit "D"
attached hereto, in a neat and clean condition and good
repair and working order, as applicable;
(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) Pay all real and personal property taxes and
Assessments which the Association is required to pay
pursuant to the terms and provisions of this Declaration or
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by law, unless separately assessed to Owners; provided,
however, that it shall be the obligation of each Owner to
pay his respective share of the tax assessment levied on the
Project prior to separate assessments by the Tax Assessor,
pursuant to the applicable provisions of the California
Revenue and Taxation Code;
(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 prior
to the beginning of the fiscal year, and shall contain
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
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 frcrr. 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;
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" (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 Dollars
($75,000.00). However, if, for any reason, the report 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, in1at least 10-point
bold type on the front page, that the statement is
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 expense 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 cf 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
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' (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, "reserve
account" means moneys that the Board has identified 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 Association is obli-
gated 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
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
offics 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;
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(jt) 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:
(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;
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(d) 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.
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.
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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 duration,
provided that the policy permits for short-rate can-
cellation 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
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(5) Agreements for sale or lease of burglar
alarm and fire alarm equipment installation and services
of not to exceed five (5) years duration, provided that
the supplier or suppliers are not entities in which the
Declarant has a direct or indirect ownership 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
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 cr 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
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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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I ARTICLE VIII
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 rights and obligations regarding a
subsequent Increment commences pursuant to Article II, Section
l(c) hereinabove. Notwithstanding any other provisions of this
Declaration, until the earliest to occur of: (a) the recordation
of a Notice of Completion for the Condominium or Condominium
Building; (b) the occupation or use of the Condominium Unit; or
(c) the completion of all elements of the Condominium which the
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Association is 'obligated to maintain, any Owner, including
Declarant, shall be exempt from paying that portion of the
Regular Assessment which is directly attributable to operating
expenses and reserves which would be incurred by the Association
due to the existence and/or the use of the Condominiums. The
exemption shall include, but is not limited to: roof replacement;
exterior maintenance; exterior walkway lighting; refuse disposal;
cable television and domestic water supplied to the Condominium
Units. Further, Declarant shall also be exempt from paying that
portion of the Regular Assessment which is for the purpose of
defraying operating expenses and reserves directly attributable
to the existence and use of any Common Property that is not
complete at the time Regular Assessments commence. This exemption
shall continue only until the earlier of: (a) the recordation of
a Notice of Completion on such Common Property; or (b) the
placement into use of such Common Property.
Section 3. Regular Assessments - Basis. Except as
otherwise provided in this Article, Regular Assessments 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 Association shall be a frac-
tion, 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 fiscal 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 as set forth in the Budget
reviewed and approved by the ORE. 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.
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(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.
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 commencement of
rights and obligations regarding a subsequent Increment pur-
suant to the provisions set forth in Article II, Section
l(c) of this Declaration, the maximum Regular Assessment 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 Increment without any approval of the
Members of the Association to the amount recommended by the
DRE in connection with its review and processing of the
Association budget for such Increment.
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
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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
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
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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 an Increment of the Project on the first
day of the month following: (a) the first close of an escrow for
the sale of a Condominium in such Increment to a bona fide retail
purchaser pursuant to a Final Subdivision Public Report issued by
the DRE; or (b) the occupancy of a Condominium in such Increment
pursuant to a rental or lease agreement with Declarant or its
authorized agent. 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 Assessment shall be sent to every Owner
subject thereto at least thirty (30) days in advance of each
Assessment period. The due dates shall be established by the
Board. Regular Assessments may be reduced or abated pursuant to
any maintenance and/or subsidy agreement which may be entered
into by the Association.
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
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, cr as may be amended, from time tc 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.
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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, the
deductible amounts for all insurance policies required pursuant
to the Article herein entitled "Insurance," or any such other
purpose determined by the Board. All amounts collected as re-
serves shall be deposited by the Board in a separate bank account
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 whatso-
ever, 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;
(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 by the
Association.
Section 14. Capitalization of the Association. Each
purchaser of a Condominium in Increment 1 shall contribute to the
working capital of the Association an amount equal to two (2)
months' installments of the then Regular Assessment for his
respective Condominium. Said amount shall be deposited by each
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purchaser into l4is respective escrow for the purchase of his
Condominium from Declarant, and shall be disbursed by the escrow
holder to the Association at the close of escrow for the sale of
the Condominium. Prior to the expiration of six (6) months after
the first close of an escrow for the sale of a Condominium in the
Project, Declarant shall deposit with a neutral escrow holder an
amount equal to two (2) months' installments of the Regular
Assessment for any and all Condominiums in the Project which are
not yet sold or otherwise in escrow for the sale thereof. Escrow
holder shall promptly remit these funds to the Association.
Thereafter, upon the close of each escrow for the sale of a
Condominium for which the working capital contribution was pre-
paid by Declarant, escrow holder shall remit to Declarant, and
not to the Association, the capitalization fee collected from the
buyer-Owner of said Condominium at the close of each escrow. This
capital contribution shall in no way be deemed to be a prepayment
of any portion of the Regular Assessment obligation of said
Owners.
ARTICLE IX
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. Ir. 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
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least thirty (30)fdays 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
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, default 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
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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.
ARTICLE X
USE RESTRICTIONS
The Condominium Units and Common Property shall be oc-
cupied and used only as follows:
Section 1. 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 the first close of an
escrow for the sale of a Condominium in the Project to a retail
purchaser pursuant to a Final Subdivision Public Report issued by
the ORE 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.
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.
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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
seven (7) years from the first close of escrow for the sale of a
Condominium in the Project to a retail purchaser pursuant to a
Final Subdivision Public Report issued by the ORE 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
reasonable 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 comply with all reasonable Rules and
Regulations established by the Board. Each Owner shall be
responsible for cleaning up any excrement or other unclean or
unsanitary condition 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 approval of two-thirds (2/3) of the Board, shall have the
right to prohibit maintenance of any animal within the Project
which constitutes 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 cr suffer any immcral 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
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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.
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.Window Coverings. 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 reasonably 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. Hard Surface Flooring. In order to help
mitigate the transmission of sound between Condominium Units, no
Owner of a Condominium Unit located on the second or third level
in the Project shall install any hard surface flooring material
of any kind (i.e., hard wood floors, tile, linoleum, etc.) in any
portion of Condominium Unit other than the kitchen (and nook
area, if applicable), bathrooms and front door entry area.
Section 12. 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-
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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 13. Parking. All vehicles in the Project shall
be parked in accordance with the following:
(a) Save and except Access Easements which are
located outside of, but are appurtenant to the Property and
Annexation Property, any private drives within the Project
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.
(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 structure
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
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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 structure 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 14. 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
"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 15. 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 16. 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 17. 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-
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mittee for complifance with the architectural standards adopted by
the Association.
Section 18. 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 19. Water Softeners. No Owner shall install
any on-site regenerative water softener within any portion of the
Project.
Section 20. 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
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 21. 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 22. 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 23. Special Restrictions Regarding Exclusive
Use Common Areas. No patio or deck area including, without
limitation, the fences, walls or railings enclosing said areas
may be painted, remodeled, or otherwise altered without the prior
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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, deck 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 24. 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 rights and powers set forth in this Declaration to
complete the planning, development, construction, advertising,
marketing, leasing and sales of the Condominiums, and all other
property within the Project (including any property which may be
annexed into the Project).
ARTICLE XI
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, deck
areas, the exterior stairways, chimneys, (excepting the
firebox portion of the fireplace located within the
residential element of the Condominium Unit), any air condi-
tioner or forced air heating unit pads located outside the
Condominium Unit;
(b) If the Access Easements (and any related
Improvements [e.g., entry gates]) dire subjecc to an agree-
ment with an adjacent homeowners association, the Access
Easements (and any such related Improvements) shall be
maintained in accordance with the terms of such agreement as
provided in Section 4 below;
; (c) Open parking areas and sidewalks;
(d) Private on-site sewer and drainage fa-
cilities and devices;
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(e) All recreational amenities, and all
furnishings,, equipment and other personal property owned by
the Association;
(f) The Open Space Easement Areas (and
public access easements) as depicted on Exhibit "D" attached
hereto;
(g) All Common Property lighting facilities;
(h) Monument signs, if any, located on the
Common Property;
(i) All landscaping located on the Common
Area (other than Exclusive Use Common Areas) shall be
maintained in a healthy condition free from weeds, trash and
debris; and
(j) 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-
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, the air
conditioning condenser, and the firebox portion of the
fireplace within his Condominium Unit; and
(6) The respective patio and/or deck,
: excluding those portions maintained by the Association.
(b) Each Owner shall, at his sole cost and
expense, be responsible for resurfacing the floor of his
deck with a seal coat material approved by the Architectural
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Control Committee. In no event shall any Owner install, nor
shall the Architectural Control Committee approve the
installation of artificial turf on any exterior staircase,
landing or on any deck.
(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 Facilities. The
Association shall maintain in good repair and working order all
public recreational and public access facilities, including, but
not limited to, the public access walkway lying southerly of the
cul-de-sac on Harbor Drive and all public access walkways extend-
ing easterly and westerly of said walkway. All costs associated
with the maintenance and repair of the above-referenced public
recreational and public access facilities will be included as a
Common Expense and paid for by the Association from the Assess-
ments levied by the Association. The public recreational and
public access facilities referenced above are defined more spec-
ifically in the staff Recommendations and Findings as specified
in Application No. 6-83-613 approved by the California Coastal
Commission and recording against the title of the Property.
Section 4. 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
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.
Section 5. Maintenance of Access Easements. If the
Association has entered into an agreement with an adjacent home-
owners association whose members, owners and/or residents use all
or any portion of the Access Easements (and any related Improve-
ments), the cost of maintaining and repairing the Access Ease-
ments subject to such Agreement shall be borne by the parties to
such agreement as set forth therein. The portion ailocable to
this Association shall be included as a Common Expense. If no
such agreement has been entered into or has lapsed, nothing
herein shall be interpreted or construed as a waiver by any Owner
nor by the Association to seek contribution for the cost of main-
taining and repairing the Access Easements or to seek any other
remedy available at law or in equity from any other persons
and/or entities who use all or any portion of the Access Ease-
ments.
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Section *6. Maintenance by Declarant. In the event any
Improvements in the Project shall be damaged by Declarant or its
employees, contractors or agents during the course of construc-
ting any subsequent Increment, the Association shall promptly
advise Declarant in writing of such damage. Thereafter, Declarant
shall promptly repair such damage at its sole cost and expense.
ARTICLE XII
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 any
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
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Final Subdivision 'Public Report for the Project, whichever first
occurs. Thereafter, the Board shall have the power to appoint all
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
c/o Marlborough Development Corporation
28751 Rancho California Road - Suite 208
Rancho California, CA 92390
Attn: Mr. Marc Simmons
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, and/or (c) upon the
agreement of the person submitting the same to reimburse the
Association for the cost of such maintenance. The Committee 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.
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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
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.
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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
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
Commi11ee 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 sucn 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
it's 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 XIII
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
qondition 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 in the Project 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 Condominium in the Project 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 reconstruction and repair to the Common Area, and
which is assessable as provided above to all Condominiums in
the Project, but which is less expensive than restoring the
Common Aiea 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 any private streets,
utilities and open spaces within the Project, at least to
the extent said streets, utilities and open spaces were
accepted initially 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,1 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
plot plans showing full and complete nature of the proposed
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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.
ARTICLE XIV
DAMAGE OR DESTRUCTION TO
THE ASSOCIATION PROPERTY
Section 1. Election to Restore Association Property.
Except -as otherwise provided in Sections 2 and 3 hereinbelow,
damage to or destruction of any Association Property shall be
handled in the following manner:
(a) In the event of damage to or destruction of
any 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 such 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 in the
Project on an equal basis.
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(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 in the
Project 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 the Condominiums in the Project, 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
[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
A&sociation.
(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 any pri-
vate streets and utilities within the Project and which have
been designated as Association Property, at least to the
extent said streets and utilities were accepted initially by
the City.
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.
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ARTICLE XV
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 (including Declarant) by court judgment, or by
agreement between the condemning authority and each of the
affected Owners in the Project, shall be distributed among the
affected Owners (and their respective Mortgagees) based upon the
relative fair market values of all Condominiums prior to the
award, as determined by an independent, qualified, professional
real estate appraiser. All first Mortgagees shall have the right
to participate in any condemnation 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
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 XVI
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.
Declarant or 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 Condominiums in the Project (including
Declarant, if applicable) 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;
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(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 [1] 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
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 XVII
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
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 nan-
die 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
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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.
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 the
provisions of the Article herein entitled "Damage or Destruction
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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-
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-
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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
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 XVIII
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
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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
the, Owners other than Declarant, and sixty-seven percent
(67%) of the first Mortgagees (based upon one [I] 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 insurance
proceeds or condemnation awards, or (ii) determining 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 "Cove-
nant 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 consistent
with the intended uses of the Common Property by the
Project shall not be deemed a transfer within the mean-
ing 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;
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f (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 landscaping
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.
(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
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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.
(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-
-75-
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
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 DRE, 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 XIX
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 ORE, 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 XX
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. Incremental 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 Increments. 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 first
close of escrow for the sale of a Condominium in the Project
to a retail purchaser, pursuant to a Final Subdivision
Public Report issued by the ORE for the immediately pre-
ceding Increment 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 approved by the City and
the ORE; and
(c) A Declaration of Annexation, as described in
Section 4 of this Article, shall be recorded covering the
applicable portion(s) of 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,
-78-
delete, revoke, modify or otherwise alter the covenants set forth
in this Declaratipn.
Section 5. Effective Date of Annexation. Any
Declaration of Annexation recorded on an Increment of the Project
shall become effective immediately upon the first close of an
escrow for the sale of a Condominium in such Increment, as evi-
denced by the recordation of the first instrument of conveyance
for said Condominium.
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 Protective Covenants
set forth in this Declaration.
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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. Additionally, the City shall have the right,
but not the obligation, to enforce those Protective
Covenants which implement any conditions of approval or
otherwise effect any rights or interests of the City.
(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 en 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-
-80-
ties, for the period during which any Assessment against
said Owner's Condominium remains unpaid; provided, however,
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 -ta 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 regarded, 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 ta 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 saall
include the plural, and the masculine shall include the feminine
and neuter.
-81-
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 Area
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;
-82-
(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
-83-
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: ^><LA
Its:
BY: i _
Its:
-84-
STATE OF CALIFORNIA
COUNTY OF
) ss.
On 7 <^?7 /, before me, the undersigned, a
Notary Public in and for said State, personally appeared _
A /V/fe, _ and f Mf/£ 2X BuZtieV > personally-u. -r-r — -^ -
known to me (or proved to me on the basis of satisfactory evi-
dence) to be the persons who executed the within instrument
as /^££" e/gS>/3#/7^ and /^S577~ Sf<. , 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 OFFICIAL- :;:.:AI
DEBRA If ViTiM
NOTARY PUEL!;: ',-:.'. ORNiA
ORANGGCC'J^TV
MyComm. Expires Jen 26, 1991
( SEAL )
CONSENT OF LIENHOLDER AND
SUBORDINATION OF LIEN
The undersigned beneficiary under that certain Deed of
Trust recorded on E^bruav-M 3 i 19 %*7 , as Instrument No.
T^?- D5"79g7 / 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"), 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, and to any amend-
ments to such documents that may be required for the purpose of
complying with any law, ordinance, regulation or other require-
ment of any governmental or other public agency (including, but
not limited to, the County, City, ORE, FNMA, FHLMC and/or GNMA) .
DATED tStT^ko ^k 19^0 "LIENHOLDER"
cAY\oy
BY:
Its:
BY:
Its:
STATE OF CALIFORNIA )
) ss.
COUNTY OF -ORANGE- )
On oe/?/.e/y? her 3 4 r 19_£f, before me, the undersigned, a
Notary Public in and for said State, personally appeared _
t: hn?U H tf<u r)cur*cfc« /PS and -- • --------- _ , personally
known to me for proved to me on the basis of satisfactory evi-
dence) to be the persons who executed the within instrument
as I iLe. ,re±t c/e./> f~ and — ..... , on_ _ _ _
behalf of 5ecur.fy Pc^,£<c /U^e,?.-./ &a*t. _ / 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.
L -
Signature pf Notary Public
1 1 s-stf '•-/'! ' LOS ANGELES COUNTY' My Commission fjpues Dec. 13, 199)
(SEAL)
EXHIBIT "A1
DESCRIPTION OF THE PROPERTY
The Property shall mean and refer to that certain real
property (and to all Improvements constructed thereon) located in
the City of Carlsbad, County of San Diego, State of California,
more particularly described as follows:
Lot 1 of Carlsbad Tract No. 83-4 according to
the map thereof No. 11484 filed in the Office
of the County Recorder of San Diego County on
April 10, 1986, excepting therefrom that
portion of said land, if any, heretofore or now
lying below the mean high tide line of the
Pacific Ocean.
Page 1 of 1 Page
EXHIBIT "B1
DESCRIPTION OF THE
ANNEXATION PROPERTY
The Annexation Property shall mean and refer to 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 according
to the map thereof No. 11484 filed in the
Office of the County Recorder of San Diego
County on April 10, 1986, excepting there-
from that portion of said land, if any,
heretofore or now lying below the mean high
tide line of the Pacific Ocean.
Page 1 of 1 Page
EXHIBIT
DESCRIPTION AND DEPICTION
OF THE ACCESS EASEMENTS
The Access Easements shall mean and refer to all of
those certain nonexclusive easements as described in a Deed to
Marlborough Development Corporation, a California corporation,
which was recorded in the Office of the County Recorder of San
Diego County on July 18, 1988 as File/Page No. 88-346620 of the
Official Records.
The Access Easements are generally depicted for
illustrative purposes on Page 2 of this Exhibit "C."
Page 1 of 2 Pages
EXHIBIT "C1
DESCRIPTION AND DEPICTION
OF THE ACCESS EASEMENTS
4200 HARBOR DRIVE
XNN>^ ^
Page 2 of 2 Pages
EXHIBIT "D"
DEPICTION OF THE OPEN SPACE EASEMENT AREAS
(see attached)
EXHIBITED*
p <\ ,1 /\ r~^ ,--, "~^~I v /I / V l_ J -•< l\ I
iV!/"\i ^'h_/
N
^e/«
-^9.:fUBUC. ACCESS EASEMENTTO THE POBLIC OKJ HAP ^ 114-84-
POBLIC UTILITIESTUE crry OF
BV f^P 74-Z9ZOS3, RBC II-4--74
(TO
V\ EASEMEMT OFFERED
^COSTAL, COMMISSION ~BV ---'-
-573112,
EASEMENT
1(4-84-
>
*3.<v*
I
LCTI ,
TRACT
OF
, 92086"
SSODS" t>i ^
AND WHEN RECORDED MAIL THIS DEED AND, UNLESS
OTHERWISE SHOWN BELOW. MAIL TAX STATEMENTS TO:
NAME I 1
STREET t
ADDRESS
CITY.
STATE
ZIP L J
•SPACE ABOVE THIS LINE FOR RECORDER'S USE
ALL
PTN
Title Order No.
SAMPLE E«'ow or Loan No.
CORPORATION GRANT DEED
THE UNDERSIGNED GRANTOR(s) DECLARE(s)
DOCUMENTARY TRANSFER TAX is $ CITY TAX $
D computed on full value of property conveyed, or
D computed on full value less value of liens or encumbrances remaining at time of sale.
D Unincorporated area: D City of Carlsbad , .and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged.
MARLBOROUGH DEVELOPMENT CORPORATION,
a corporation organized under the laws of the State of California
hereby GRANTS to
JOHN DOE and MARY DOE,
husband and wife/ as joint tenants,
the following described real property in the
County of 'an Diego,State of California:
See Exhibit "A" attached hereto and
incorporated herein by this reference.
Dated.
MARLBOROUGH DEVELOPMENT CORPORATI
a California corporation
, o Corporation
STATE OF CALIFORNIA ss
_doy ol.On this
before me. the undersigned, a Notary Public in and tor said County and State.
personally appeared
and _^ .-
personally known to me (or proved to me on the basis ol satisfactory evidence)
to be the persons who executed the within instrument as ______^_
Presideo1. and ™___^_ Secretary on behalf of the corporation
therein named, and acknowledged to me that such corporation executed the
sanne. pursuant to its laws, or a resolution ot its Board of Directors
WITNESS my hood and official seal
. Secretary
Sio.nature -
Nome (Typed or Printed)(This area for official notarial seal)
TT-102 (Rev. 1/88)MAIL TAX STATEMENTS AS DIRECTED ABOVE.
10725.004 CCR897S 091890
EXHIBIT "A"
The Condominium Estate consists of the following:
Parcel 1. An Undivided Interest in the Common Area;
A one/eighty-sixth (l/86th) undivided fractional fee interest in
and to all of the real property described as Lot 1 of Carlsbad
Tract No. 83-4, located in the City of Carlsbad, County of San
Diego, State of California, according to the Map thereof No.
11484 filed in the Office of the County Recorder of San Diego
County on April 10, 1986, together with all improvements thereon,
("Lot 1"), excepting therefrom that portion of said land, if any,
heretofore or now lying below the Mean High Tide Line of the
Pacific Ocean, and further excepting and reserving therefrom the
following:
(a) All Condominium Units now or hereafter constructed thereon;
(b) The right which is hereby expressly reserved by Grantor to
grant to owners of Condominiums now or hereafter constructed
on Lot 1, pursuant to that Article contained in that certain
"Declaration of Covenants, Conditions and Restrictions, and
Reservation of Easements for 4200 Harbor Drive" recorded on
, 19 , as Instrument No. , in the
Official Records in the Office of the County Recorder for
the County of San Diego ("Declaration"), nonexclusive ease-
ments appurtenant to said owner's Condominium Unit on, over
and across the Common Area of Lot 1, except over any Exclu-
sive Use Common Area as defined in Subsection (c) herein-
below and in the Declaration;
(c) All of the exclusive easements for Exclusive Use Common
Area, as described in the Declaration and shown in the Con-
dominium Plan (defined in Parcel 2 below);
(d) Nonexclusive easements for ingress, egress, access, mainte-
nance, repair, drainage, encroachment and other purposes,
all as described in the Declaration;
(e) All minerals, including without limitation, all oil, gas,
hydrocarbon and similar substances, and all water, water
rights, geothermal steam and steam power, within or under-
lying such real property, together with the perpetual right
of development thereof; provided, however, that such right
does not include the right to enter upon the surface of said
real property or at any point within five hundred (500) feet
below the surface of said real property; and
(f) All other matters described in the Declaration or otherwise
of record.
Parcel 2. The Condominium Unit;
Unit , as shown on that certain Condominium Plan recorded on
, 19 , as Instrument No. , in the Official
Records in the Office of the County Recorder for the County of
San Diego ("Condominium Plan"), as defined in the Declaration.
Parcel 3. An Easement For Exclusive Use Common Area;
An exclusive easement appurtenant to the afore-described Condo-
minium Unit for deck, patio, parking, storage and/or air con-
ditioning condensor unit purposes, as more particularly described
in the Declaration and as shown in the Condominium Plan ("Exclu-
sive Use Common Area").
Page 1 of 3 Pages
Parcel 4. A Nonexclusive Easement for Access;
A nonexclusive easement appurtenant to the afore-described
Condominium Unit (Parcel 2 above) for pedestrian and vehicular
ingress, egress and access and such other purposes as set forth
in a Deed to Marlborough Development Corporation, a California
corporation, recorded in the Office of the County Recorder of San
Diego County on July 18, 1988 as File/Page No. 88-346620 of the
Official Records of said County.
Parcel 5. Nonexclusive Easements Over Common Area;
Subject to all of the rights, easements and other privileges
reserved by the Grantor pursuant to the Declaration, a nonex-
clusive easement appurtenant to the afore-described Condominium
Unit for ingress, egress, use and enjoyment on, over and across
all portions of the Common Area of Lot 1, except any portions
thereof set aside in the Declaration and shown in the Condominium
Plan as Exclusive . Use Common Area, and on, over and across all
portions of any additional Common Area annexed into the Project
except any portions thereof set aside as Exclusive Use Common
Area and/or except any portions subject to any rights, easements
or privileges reserved by Grantor.
Parcel 6. A Nonexclusive Easement Over the Association Property;
A nonexclusive easement appurtenant to the afore-described Condo-
minium Unit for ingress, egress, use and enjoyment on, over and
across any "Association Property" (as defined in the Declaration)
presently included or subsequently- annexed into the Project.
(Parcels 1 through 6, inclusive, are hereinafter collectively re-
ferred to as the "Condominium Estate.")
THIS DEED is made and accepted and the Condominium Estate is
hereby granted subject to the covenants, conditions, restric-
tions, easements, reservations, rights, uses, limitations, equit-
able servitudes, liens, charges and all other terms and provi-
sions (collectively referred to as the "Protective Covenants")
set forth in the Declaration, and in the Articles of Incorpora-
tion and the By-Laws of 4200 Harbor Drive Homeowners Association
("Association"), each and all of which are hereby made a part
hereof and expressly imposed on the Condominium Estate by this
reference with the same effect as though fully set forth herein.
GRANTEES, on behalf of themselves and their successors, heirs,
executors, administrators, devisees, assigns and grantees, in
accepting this deed and conveyance thereunder, do hereby covenant
and agree, jointly and severally, for the benefit of Grantor and
its successors and assigns, the Association, and/or each and
every owner bound by the Declaration, that Grantees;
(1) shall fully and faithfully comply with all of th-e
Protective Covenants set forth in the Declaration,
including, but not limited to, the timely payment in full of
all assessments levied in accordance with the Protective
Covenants against the Condominium Estate conveyed hereby;
and
(2) pursuant to the Declaration, irrevocably appoint
Grantor and its successors and assigns (i.e., the
"Declarant" as such term is defined in the Declaration) as
their attorney-in-fact, and grant Declarant an irrevocable
Page 2 of 3 Pages
power of attorney coupled with an interest for the purposes
set forth in Article V of the Declaration.
"GRANTEES"
I/(We) hereby accept this Deed and
the terms, covenants, conditions
and restrictions contained herein
and irrevocably appoint Declarant
as my/{our) attorney-in-fact for
the purposes specified in the
Declaration.
Page 3 of 3 Pages
STATE OF CALIFORNIA )
) SS.
COUNTY OF , )
On , 19 , before me, the undersigned, a
Notary Public in and for said State, personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to
me that executed the same.
WITNESS my hand and official seal.
Signature of Notary Public
SEAL'
STATE OF CALIFORNIA )
) SS.
COUNTY OF ; )
On / 19 , before me, the undersigned, a
Notary Public in and for said State, personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to
me that executed the same.
WITNESS my hand and official seal.
Signature of Notary Public
(SEAL)
AND WHEN RECORDED MAH. TVttS Dffi) AND. UNLESS
OTHER^SE SHOW BaOW, MAIL TAX STATB^ENTS TO.
**** [T200 HARBOR DRIVE HOMEOWNERsl
ASSOCIATION f
c/o MARLBOROUGH DEVELOPMENT CC
28751 Rancho California Road
.Suite 208
LRancho California, CA 9239Q_J
OTY.
STATt
•SPACE ABOVE THIS LINE FOR RECOffDWS USE
AU
PTN
Title Order No
Escrow or Loon No.
CORPORATION GRANT DEED
THE UNDERSIGNED GRANTOR(s) DECLARE(s)
DOCUMENTARY TRANSFER TAX is S CITY TAX $
D computed on full value of property conveyed, or
D computed on full value less value of liens or encumbrances remaining at time of sate,
D Unincorporated area: D City of Carlsbad . .and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged.
MARLBOROUGH DEVELOPMENT CORPORATION,
a corporation organized under the laws of the State of California/
hereby GRANTS to
4200 HARBOR DRIVE HOMEOWNERS ASSOCIATION,
a California nonprofit, mutual benefit corporation,
the following described real property in the
County of San Diego State of California:
See Exhibit "A" attached hereto and
incorporated herein by this reference.
Dated.
MARLBOROUGH DEVELOPMENT CORPORATION
a California corporation
__________________________ o Corporation
STATE Of CALIFORNIA
COUNTY Of
On this
ss
.doy of.19.
before me. the undersigned, o Notary Public in and lot said County and State.
personally appeared _
and ____________________________________
personalty known to me (or proved to me on the basis ol sot isloctory evidence)
to be the persons who executed tne within instrument as _________
President, and Secretory on behalf of the corporation
therein named, and acknowledged to me that such corporation executed the
same, pursuant to Us lows, or o resolution of its Board Of Directors
WITNESS my hand and official seal
. Secretary
Signature .
Name (Typed or Printed)(This area for olficff notarial seal)
TT-102(Rev. 1/88)MAIL TAX STATEMENTS AS DIRECTED ABOVE.
10725.004 CCR897H 022390
EXHIBIT "A
Grant Deed of Association
Property to the
4200 Harbor Drive Homeowners Association
Parcel 1:
All those certain nonexclusive easements, as described in that
certain deed to Marlborough Development Corporation, a California
corporation, recorded on July 18, 1988 as Pile/Page No. 88-346620
in the Office of the County-Recorder of San Diego County.
Parcel 2;
Nonexclusive easements for ingress, egress, access, maintenance,
repair, drainage, encroachment, support and other purposes, all
as described in the Declaration defined below.
[Parcels 1 & 2 are hereinafter collectively
referred to as the "Realty"]
THIS DEED is made and accepted and the Realty is hereby granted
subject to the following:
(a) The covenants, conditions, restrictions, easements, reserva-
tions, rights, uses, limitations, liens, charges and all
other terms and provisions {hereinafter collectively refer-
red to as the "Protective Covenants") set forth in the "Dec-
laration of Covenants, Conditions and Restrictions, and
Reservation of Easements for 4200 Harbor Drive" recorded on
, 19 , as Instrument No. , in the Of-
ficial Records of San Diego County, California (referred to
herein as the "Declaration").
(b) All other matters set forth in the Declaration or otherwise
of record.
The Association Property described above is for the use and
benefit of those owners of Condominiums located in that certain
residential community known as "4200 Harbor Drive," together with
the members of their families, their tenants, guests and in-
vitees, subject to the terms and provisions of the Declaration.
Such Association Property is not for use by the general public.
Parcel 1 may also be used by the owners, the members of their
families, their tenants, guests and invitees in the adjacent
homeowners association commonly known as M ."
Page 1 of 1 Page
•IRREVOCABLE ESCROW INSTRUCTIONS
4200 HARBOR DRIVE
TO: ( ESCROW COMPANY
Attention:
FROM: MARLBOROUGH DEVELOPMEKT CORPORATION
Upon execution of these Instructions, MARLBOROUGH DEVELOP-
MENT CORPORATION, a California corporation (hereinafter
referred to as "Grantor"), will hand to
ESCROW COMPANY, a
("Escrow Holder"), a Corporation Grant Deed (hereinafter
referred to as the "Deed") conveying title to the following
described real property to the 4200 HARBOR DRIVE HOMEOWNERS
ASSOCIATION, a California nonprofit, mutual benefit corpor-
ation (hereinafter referred to as the "Association"):
Parcel 1;
All those certain nonexclusive ease-
ments, as described in that certain
deed to Marlborough Development Corp-
oration, a California corporation,
recorded on July 18, 1988 as File/Page
No. 88-346620 in the Office of the
County Recorder of. San Diego County,
California.
(Parcel 1 is hereinafter referred to as the "Association
Property.")
No Documentary Transfer Tax is to be placed on the Deed, as
there is none, as said conveyance is for consideration of
less than $100.00. You are instructed to insert verbiage on
the Deed to record. The Deed, is to be held, unrecorded, by
you, as Escrow Holder, until such time as all of the fol-
lowing conditions have been satisfied:
(a) You are to record the Deed as handed to you prior to or
concurrently with: (a) the first close of an escrow for
the sale of a Condominium in Increment 1 to a bona fide
purchaser; or (b) the occupancy of a Condominium in
such Increment pursuant to a rental or lease agreement
with Grantor or its agent, after all Improvements, if
any, to the Association Property have been completed,
as evidenced by the recordation of a valid Notice of
Completion, as defined in California Civil Code Section
3093, and the statutory period for all mechanics' liens
has expired, or if such lien period has not expired,
you have received written advice from a title insurance
company authorized to do business in the State of
California that Grantor will cause such company to
issue a policy of title insurance to the Association
with an endorsement insuring against any unrecorded
mechanics' liens. In the event the Improvements to the
Association Property have not been completed prior to
the first close of an escrow or prior to the occupancy
of a Condominium pursuant to a rental or lease agree-
ment, Grantor shall deposit with you: (i) the original
bond, letter of credit or other security satisfactory
to the California Department of Real Estate ("DRE")
assuring that all such Improvements will be completed
free of all liens and encumbrances in accordance with a
construction schedule acceptable to the DRE, and (ii)
supplemental instructions consistent with DRE form "RE
Page 1 of 2 Pages
Form 62fl-A" executed by Grantor and countersigned by a
ORE Real Estate Specialist or Manager, pursuant to
California Business and Professions Code Section
11018.5'.
(b) You are to record the Deed, subject to the following
conditions:
(1) All general and special taxes for the current fis-
cal year and supplemental assessments, if any; and
(2) Covenants, conditions, restrictions, reservations,
rights of way and easements of record, if any.
(c) You are to cause all tax bills to be sent to the Asso-
ciation at the address set forth on the Deed.
2. Grantor will assume payment of costs and fees incurred as
instructed herein.
3. In the event of a dispute between Grantor and the Associ-
ation with respect to the question of the conveyance of the
Association Property to the the Association, the issue
shall, at the request of either party, be submitted to arbi-
tration in accordance with the Commercial Arbitration Rules
("Rules") of the American Arbitration Association ("AAA")
before an arbitrator selected from the panels of arbitrators
of the AAA. In the event of referral to arbitration, Grantor
shall remit the fee to initiate the arbitration. Grantor and
the Association agree, however, that the costs of arbitra-
tion shall ultimately be borne as determined by the arbitra-
tor under the Rules.
MARLBOROUGH DEVELOPMENT CORPORATION,
a California corporation
BY:
Its:
Escrow Holder acknowledges receipt of an executed copy of the
above Instructions, and agrees to carry out the terms hereof.
Dated: , 19 ESCROW COMPANY,
BY:
Escrow Officer
Page 2 of 2 Pages