HomeMy WebLinkAbout535 Almer Road - Technical StudyRECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Manu Javaherian
1029 Vista Grande
Millbrae, CA 94030
RECEIVED
NOV - 1 2002
CITY OF BURLINGAME
PLANNING DEPT.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DECLARATION OF
COVENANTS, CONDITIONS AND
RESTRICTIONS
ESTABLISHING A PLAN OF CONDOMINIUM OWNERSHIP FOR
CASPIAN CONDOMINIUMS
TABLE OF CONTENTS
RECITALS 1
ARTICLE 1 - DEFINITIONS 2
1.1 Act 2
1.2 Assessments 2
1.3 Association 2
1.4 Association Rules 2
1.5 Bylaws 2
1.6 Common Area 2
1.7 Condominium 2
1.8 Condominium Plan 2
1.9 County 3
1.10 Declarant 3
1.11 Declaration 3
1.12 Exclusive Use Common Area 3
1.13 Governing Documents 3
1.14 Improvement 3
1.15 Insurance Trustee 3
1.16 Insurer or Guarantor 3
1.17 Map 3
LAWRENCE M. NEAL
ATTORNEY AT LAW
2332 BROWNING ST.
BERKELEY, CA 94702
(510) 981-9099
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TABLE OF CONTENTS
1.18 Member 3
1.19 Mortgage 3
1.20 Mortgagee 3
1.21 Owner 4
1.22 Project 4
1.23 Property 4
1.24 Unit 4
ARTICLE 2 - APPLICABILITY OF RESTRICTIONS 4
2.1 Submission 4
2.2 Incorporation of Declaration Into Instruments 4
ARTICLE 3 - COMPLIANCE WITH GOVERNING DOCUMENTS 4
3.1 Compliance with Governing Documents. 4
3.2 Resolution of Conflicts Between Documents 5
ARTICLE 4 PROPERTY RIGHTS AND OBLIGATIONS OF OWNERS 5
4.1 Elements of Condominium 5
4.2 Owners' Nonexclusive Easements; Association Rights 5
4.3 Exclusive Use Common Area 5
4.4 No Severance 6
4.5 Provisions For Partition of Common Area 6
4.6 Leasing of Units and Delegation of Use 7
4.7 Obligations of Owners 7
(A) Notification of Use Delegation 7
(B) Notification Regarding Governing Documents 7
(C) Payment of Assessments 8
(D) Joint Ownership 8
ARTICLE 5 EASEMENTS AND RIGHTS OF ENTRY 8
5.1 Rights of Entry and Use 8
5.2 Support, Maintenance and Repair Easement 8
5.3 Encroachment Easements 9
5.4 Power to Grant Easements 9
5.5 Easement to Governmental Entities 9
5.6 Utility Maintenance Easement 9
5.7 Easements to Maintain Heating Systems 10
5.8 Easements to Maintain Telephone and Cable Television Lines 10
5.9 Other Easements 10
ARTICLE 6 - THE ASSOCIATION: MEMBERSHIP AND VOTING RIGHTS 10
6.1 Unincorporated Association 10
6.2 Membership 10
6.3 Transferred Membership 10
6.4 Membership Voting 11
(A) Class A 11
(B) Class B 11
6.5 Vesting of Voting Rights 11
6.6 Voting Procedures 11
6.7 Joint Ownership Votes 11
6.8 Approvals Required 11
LAWRENCE M. NEAL
ATTORNEY AT LAW
2332 BROWNING ST.
BERKELEY, CA 94702
(510) 981-9099
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ARTICLE 7 - THE ASSOCIATION: POWERS AND DUTIES 12
7.1 Powers of the Association 12
(A) Contracts 12
(B) Maintenance 12
(C) Assessments 12
(D) Association Rules 12
(E) Right to Enter 13
(F) Enforcement 13
(G) Legal Action 13
(H) Manager 13
(I) Common Area 13
7.2 Duties of Association 13
(A) Maintenance 13
(B) Acceptance of Members 13
(C) Annual Membership Meeting 13
(D) Payment of Taxes and Utilities 13
(E) Preparation and Distribution of Financial Statements, Reports, and Copies of
Governing Instruments 14
(F) Schedule of Monetary Penalties 15
(G) Other Duties 16
7.3 Limitations on Authority of a Manager 16
7.4 Due Process Limitations of the Association 16
7.5 Impermissible Restrictions Upon Alienation 17
7.6 Inspection of Association Books and Records 17
7.7 Records Kept by the Association 17
ARTICLE 8 MAINTENANCE AND REPAIR OBLIGATIONS 18
8.1 Owners' Maintenance Responsibilities 18
8.2 Exclusive Use Common Area Maintenance Responsibilities 18
8.3 Association's Maintenance Responsibilities 18
8.4 Maintenance of Utilities 19
8.5 Association's Right to Maintain or Repair a Unit 19
8.6 Willful or Negligent Acts 19
ARTICLE 9 - UTILITIES AND TAXES 20
9.1 Utilities 20
9.2 Segregated Taxes 20
9.3 Unsegregated Taxes 20
ARTICLE 10 - COVENANTS AND USE RESTRICTIONS 21
10.1 Prohibited Uses 21
10.2 Unlawful Activity/Nuisances 21
10.3 No Smoking 21
10.4 Occupancy Limitations 21
10.5 Fires 21
10.6 Signs 21
10.7 Antennas and Other Additions 21
10.8 Pets 22
10.9 Trash 22
10.10 Insurance 22
10.11 Gas or Liquid Storage 22
10.12 Diseases and Pests 22
LAWRENCE M. NEAL
ATTORNEY AT LAW
2332 BROWNING ST.
BERKELEY, CA 94702
(510) 981-9099
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10.13 Trees 22
10.14 Mechanic's Liens 22
10.15 Alterations to Units 22
ARTICLE 11 -ARCHITECTURAL CONTROL 23
11.1 Architectural Control 23
11.2 Submission of Plans; Action by Association 23
11.3 Permits 23
11.4 Estoppel Certificate 23
ARTICLE 12 - ASSESSMENTS 23
12.1 Covenant to Pay Assessments 23
12.2 Personal Obligation 24
12.3 Use of Regular Assessments 24
12.4 Reserve Funds 24
12.5 Levy of Regular Assessments 25
12.6 Commencement of Regular Assessments 25
12.7 Special Assessments 25
12.8 Revised Assessments 25
12.9 Allocation of Assessments 26
12.10 Reimbursement Assessments 26
12.11 Delinquent Assessments 26
12.12 Creation of Assessment Lien 26
12.13 Foreclosure Under Assessment Lien 27
12.14 Waiver of Homestead Protections 27
12.15 Estoppel Certificate 27
ARTICLE 13 - INSURANCE/INDEMNITY 27
13.1 Fire And Casualty Insurance 27
(A) Insurance Trustee 28
13.2 Other Insurance 28
13.3 Requirements 28
13.4 Owner's Property Insurance 29
13.5 Indemnity 29
13.6 Provision To Adjust Losses 29
ARTICLE 14 - DAMAGE AND DESTRUCTION 29
14.1 Proceeds Exceed 85 Percent of Reconstruction Costs 29
14.2 Proceeds Less Than 85 Percent of Reconstruction Costs 30
14.3 Responsibility to Rebuild 30
14.4 Rebuilding Contract 30
14.5 Rebuilding Not Authorized 30
14.6 Revival of Right to Partition 30
ARTICLE 15 - EMINENT DOMAIN 31
15.1 Sale by Unanimous Consent 31
15.2 Total Sale or Taking 31
15.3 Partial Sale or Taking 31
15.4 Fair Market Value as Appraisal Standard 32
ARTICLE 16 - MORTGAGEE PROTECTION 32
16.1 Interpretation 32
LAWRENCE M. NEAL
ATTORNEY AT LAW
2332 BROWNING ST.
BERKELEY, CA 94702
(510) 981-9099
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16.2 Notices 32
16.3 Mortgagee's Right to Information 32
16.4 Deemed Consent 32
16.5 Restriction on Certain Changes 33
16.6 Consent to Action 33
16.7 Priority in Insurance and Condemnation Proceeds 34
16.8 Right of First Refusal 34
16.9 Subordination 34
16.10 Payments by Mortgagees 34
16.11 Contracts 35
16.12 Effect of Breach of Declaration on Mortgagee 35
ARTICLE 17 - ENFORCEMENT/ARBITRATION/MEDIATION 35
17.1 Rights to Enforce 35
17.2 Violation of Law 35
17.3 Remedies Cumulative 35
17.4 Mediation 35
17.5 Arbitration Between Owners 36
ARTICLE 18 - MISCELLANEOUS PROVISIONS 36
18.1 Construction of Provisions 36
18.2 Independence of Provision 36
18.3 Failure Not a Waiver 36
18.4 Notices 36
18.5 Headings 36
18.6 Number/Gender 36
18.7 Amendments 37
18.8 Successor Statutes 37
18.9 Recitals 37
18.10 Exhibits 37
Exhibit A - Property Description
Exhibit B - Condominium Plan
Exhibit C - Schedule of Undivided Interest in Common Area
LAWRENCE M. NEAL
ATTORNEY AT LAW
2332 BROWNING ST.
BERKELEY, CA 94702
(510) 981-9099
- CC&R'S -
CASPIAN
CONDOMINIUMS
Printed: 10/30/2002
TABLE OF CONTENTS
DECLARATION OF
COVENANTS, CONDITIONS AND
RESTRICTIONS
ESTABLISHING A PLAN OF CONDOMINIUM OWNERSHIP FOR
CASPIAN CONDOMINIUMS
THIS DECLARATION is made this day of , by MOMOOCHEHR
JAVAHERIAN and MEHRI SERRAFAN, TRUSTEES OF THE JAVAHERIAN LIVING TRUST
DATED OCTOBER 5, 1999, hereinafter referred to as "Declarant."
RECITALS
THIS DECLARATION is made with reference to the following facts:
A. Declarant is the Owner of all that certain real property (the "Property")
located in the City of Burlingame, County of San Mateo, State of California, and particularly
described in Exhibit A attached. The address of the Property is 535 Almer Road, Burlingame,
CA 94010.
B. The Property, along with its improvements, shall also be referred to as
the "Project," as defined in Section 1.22. It is the desire and intention of Declarant to create
four (4) residential Condominium Units on the Property. By this Declaration, Declarant intends
to establish a plan of Condominium ownership.
C. It is Declarant's intention to subject the Project, and the use and
ownership thereof, now and in the future, to certain limitations, covenants, conditions,
restrictions, easements, liens, charges and equitable servitudes as are set forth herein for the
benefit of such Project and the future Owners and users thereof.
D. This Declaration shall become effective upon the occurrence of all of the
following: (i) recordation of the Map; (ii) execution and recordation of this Declaration; and (iii)
recordation of an ownership deed for any Condominium.
NOW, THEREFORE, DECLARANT HEREBY DECLARES AS FOLLOWS:
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ARTICLE 1 - DEFINITIONS
Unless otherwise indicated, the following terms shall have the following meanings when
used in this Declaration:
1.1 Act. "Act" means Title 6, Sections 1350 through 1376, inclusive, of the Civil
Code of California, entitled "Davis -Stirling Common Interest Development Act," as the same
may be amended from time to time.
1.2 Assessments. "Assessment" means a charge levied by the Association against
an Owner and his, her or their Condominium in accordance with the provisions of this
Declaration. The specific types of Assessments are defined as follows:
(A) "Regular Assessment" means a charge levied against an Owner and his,
her or their Condominium for such Owner's proportionate share of the Association's annual
costs as provided in Article 12.
(B) "Special Assessment" means a charge levied against an Owner and his,
her or their Condominium for other purposes as provided in Article 12.
(C) "Reimbursement Assessment" means a charge levied against an Owner
and his, her or their Condominium as a fine or to repay or reimburse the Association as
provided in Section 12.11.
1.3 Association. "Association" shall mean and refer to the CASPIAN
CONDOMINIUMS HOMEOWNERS' ASSOCIATION, an unincorporated association, and its
successors and assigns.
1.4 Association Rules. "Association Rules" shall mean the rules adopted by the
Association as provided in Section 7.1(D).
1.5 Bylaws. "Bylaws" means the Association's Bylaws and any amendments which
set forth procedural matters relating to the internal governance of the Project.
1.6 Common Area. "Common Area" means the entire Project except all Units as
defined in this Declaration and as shown on the Condominium Plan.
1.7 Condominium. "Condominium" means an estate in real property, as defined in
California Civil Code §783 and §1351(f), consisting of an undivided interest as a tenant in
common in all or any portion of the Common Area, together with a separate fee interest in a
Unit and any other separate interests in the real property as are described in this Declaration, in
the Condominium Plan, or in the deed conveying the Condominium.
1.8 Condominium Plan. "Condominium Plan" means a Condominium Plan recorded
pursuant to California Civil Code §1351(e) with respect to the Project, and any amendments to
the Condominium Plan. A copy of the Condominium Plan is attached hereto as Exhibit B. The
execution of this Declaration by Declarant or the execution of a subordination by any lender
constitutes consent to the recordation of the Condominium Plan.
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1.9 County. "County" means the County of Alameda, State of California.
1.10 Declarant. "Declarant" means MOMOOCHEHR JAVAHERIAN and MEHRI
SERRAFAN, TRUSTEES OF THE JAVAHERIAN LIVING TRUST DATED OCTOBER 5, 1999
and any successor or assign to whom Declarant assigns its interest as Declarant in whole or in
part.
1.11 Declaration. "Declaration" means this Declaration of Covenants, Conditions and
Restrictions and any amendments or supplements hereto.
1.12 Exclusive Use Common Area. "Exclusive Use Common Area" means that
portion of the Common Area that is reserved for the exclusive use of an Owner but located
outside the boundaries of that Owner's Unit. The boundaries or location of and limitations on
the Exclusive Use Common Area are described in Section 4.3.
1.13 Governing Documents. "Governing Documents" is a collective term that means
and refers to this Declaration, the Bylaws and to the Association Rules.
1.14 Improvement. "Improvement" includes, without limitation, any structure of any
kind, or the construction, installation, alteration, or remodeling of any building, walls, decks,
fences, landscaping, landscaping structures, skylights, antennas, utility lines.
1.15 Insurance Trustee. "Insurance Trustee" means an institutional lender,
commercial escrow company or title company with trust powers in the County as may be
designated by the Association to hold and disburse funds as trustee for the Association and the
Owners, as provided in Section 13.1(A).
1.16 Insurer or Guarantor. "Insurer" or "Guarantor" shall mean an insurer or
governmental guarantor of a Mortgage.
1.17 Map. "Map" shall mean and refer to that Parcel Map No. , filed for
record the day of , , in Book of Parcel Maps at page(s)
through , in the records of the County.
1.18 Member. "Member" means every person or entity holding a membership in the
Association, and whose rights as a Member are not suspended pursuant to Section 7.1(D).
1.19 Mortgage. "Mortgage" means a bona fide mortgage or deed of trust which
encumbers a Condominium or other portion of the Project.
1.20 Mortgagee. "Mortgagee" means the beneficiary under a deed of trust and any
guarantor or insurer of a Mortgage. An "institutional" Mortgagee is a Mortgagee that is a bank
or savings and loan association or Mortgage company or other entity chartered or licensed
under federal or state laws whose principal business is lending money on the security of real
property or investing in such loans, or any insurance company or any federal or state agency or
instrumentality, including, without limitation, the Federal National Mortgage Association and the
Federal Home Loan Mortgage Corporation. A "first" Mortgage, or "first" Mortgagee is one
having priority as to all other Mortgages or holders of Mortgages encumbering the same
Condominium or other portions of the Project. A "second" Mortgage, or "second" Mortgagee is
one having priority, after the first Mortgage or first Mortgagee, as to all other Mortgages or
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holders of Mortgages encumbering the same Condominium or other portions of the Project.
1.21 Owner. "Owner' means the record fee title Owner, whether one or more
persons or an entity, of a fee simple title to any Condominium and shall include a contract
purchaser, provided the contract purchaser is in possession under a recorded contract of sale.
"Owner" shall also mean Member of the Association. "Owner' shall not include any person who
holds an interest in a Condominium merely as security for the performance of an obligation or
as a tenant.
1.22 Project. "Project" means the Property and all the improvements on the Property.
1.23 Property. "Property" means that parcel of real property described in Recital A,
and more particularly described in Exhibit A attached.
1.24 Unit. "Unit" means the elements of a Condominium that are not owned in
common with the other Owners of Condominiums in the Project. Such Units and their
respective boundaries are shown and more particularly described on the Condominium Plan.
"Unit" does not include other interests in real property that are less than estates in real property,
such as exclusive or nonexclusive easements. In interpreting deeds and plans the existing
physical boundaries of a Unit or of a Unit reconstructed in substantial accordance with the
original plan shall be conclusively presumed to be its boundaries, rather than the description
expressed in the deed or Condominium Plan, regardless of minor variance between boundaries
shown on the Condominium Plan or in the deed and those of the building and regardless of
settling or lateral movement of the building. Whenever reference to a Unit is made in this
Declaration, in the Condominium Plan, in any deed, or elsewhere, it shall be assumed that such
reference is made to the Unit as a whole, including each of its component elements.
ARTICLE 2 - APPLICABILITY OF RESTRICTIONS
2.1 Submission. Declarant declares that the Project is, and shall be, held, conveyed,
hypothecated, encumbered, sold, leased, rented, used, occupied and improved subject to each
and all of the limitations, covenants, conditions, restrictions, easements, liens, charges,
assessments and equitable servitudes set forth herein, all of which are declared and agreed to
be in furtherance of a plan of condominium ownership as described in the Act for the
subdivision, improvement, protection, maintenance, and sale of Condominiums within the
Project, and all of which are declared to be for the purpose of enhancing, maintaining and
protecting the value, desirability and attractiveness of the Project and every part thereof. All of
the limitations, covenants, conditions, restrictions, easements, liens, charges, assessments and
equitable servitudes set forth herein shall run with, be binding on and inure to the benefit of
each and every person having or acquiring any right, title or interest in the Project, and shall be
binding upon and inure to the benefit of the successors in interest of such persons.
2.2 Incorporation of Declaration Into Instruments. Any deed or other instrument by
which a Condominium is conveyed shall be subject to the provisions of this Declaration and
shall incorporate the provisions of this Declaration, whether or not such deed or other
instrument makes reference hereto.
ARTICLE 3 - COMPLIANCE WITH GOVERNING DOCUMENTS
3.1 Compliance with Governing Documents. All present and future Owners,
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occupants and tenants of Units within the Project shall be subject to, and shall comply with,
each and every provision of the Governing Documents, as the same or any of them shall be
amended from time to time, unless a particular provision is specifically restricted in its
application to one or more of such classes of persons (Le., Owners, tenants, invitees, etc.).
The acceptance of a deed to any Condominium, the entering into a lease, sublease or contract
of sale with respect to any Unit, or the occupancy of any Unit shall constitute the consent and
agreement of such Owner, tenant or occupant that each and all of the provisions of the
Governing Documents, as the same or any of them may be amended from time to time, shall
be binding upon said person and that said person will observe and comply with the Governing
Documents.
3.2 Resolution of Conflicts Between Documents. If there are any matters of conflict
or inconsistencies between the Association Rules and this Declaration, or between the Bylaws
and this Declaration, then the provisions of this Declaration shall prevail. If there are any
matters of conflict or inconsistencies between the Association Rules and the Bylaws, then the
provisions of the Bylaws shall prevail.
ARTICLE 4 - PROPERTY RIGHTS AND OBLIGATIONS OF OWNERS
4.1 Elements of Condominium. Ownership of each Condominium within the Project
shall include a Unit; an undivided interest in the Common Area which is set forth in Exhibit C
and shall be specified in the deed from Declarant to each Owner and which undivided interest
cannot be altered or changed as long as the prohibition against severability of component
interests in a Condominium remains in effect as provided in this Declaration; a membership in
the Association; and any Exclusive Use Common Area appurtenant to such Condominium over
the Common Area as described in this Declaration, the Condominium Plan and the deed to the
Condominium.
4.2 Owners' Nonexclusive Easements: Association Rights. Every Owner has
nonexclusive rights of use, enjoyment, ingress, egress, and support in, to, and throughout the
Common Area and any Improvements or facilities on the Common Area. However, such
nonexclusive rights shall be subordinate to, and shall not interfere with, any Owner's rights with
respect to Exclusive Use Common Area. Each such nonexclusive right shall be appurtenant to
the respective Condominium and shall pass with the title to the Condominium. Nonexclusive
rights shall be subject to the right of the Association to adopt and to enforce Association Rules
with respect to the Common Area.
4.3 Exclusive Use Common Area.
(A) Parking Spaces. With respect to the Exclusive Use Common Area
parking spaces designated on the Condominium Plan, ownership of a Condominium may
include the exclusive right to use and enjoy one (1) or more such parking spaces, if designated
by Declarant upon the conveyance of a Condominium in the grant deed to such Condominium.
Declarant shall have the sole right to assign any of the parking spaces to any Owner or
purchaser of a Unit until all four (4) Units in the Project have been sold by Declarant,
notwithstanding the transfer of control of the Association from Declarant to the Owners in
accordance with the provisions of Section 6.4. If any of the parking spaces remain unassigned
after the close of escrow on the last Unit sold by Declarant, the Association may thereafter
assign such unassigned parking spaces at its discretion. The approximate dimensions of each
parking space are shown on the Condominium Plan. The Burlingame Municipal Code prohibits
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the renting or leasing of any required parking spaces.
(B) Unit 1. The Owner of Unit 1 shall have the exclusive right to use and
enjoy that patio designated on the Condominium Plan as "Patio-1", that balcony designated on
the Condominium Plan as "Balcony-1" and that storage space designated on the Condominium
Plan as "Storage-1".
(C) Unit 2. The Owner of Unit 2 shall have the exclusive right to use and
enjoy those patios designated on the Condominium Plan as "Patio-2", that balcony designated
on the Condominium Plan as "Balcony-2" and that storage space designated on the
Condominium Plan as "Storage-2".
(D) Unit 3. The Owner of Unit 3 shall have the exclusive right to use and
enjoy that patio designated on the Condominium Plan as "Patio-3" and those balconies
designated on the Condominium Plan as "Balcony-3".
(E) Unit 4. The Owner of Unit 4 shall have the exclusive right to use and
enjoy that patio designated on the Condominium Plan as "Patio-4" and those balconies
designated on the Condominium Plan as "Balcony-4".
(F) Other EUCA. Exclusive Use Common Area shall also include the
following portions of Common Area designed to serve the Owner's Unit exclusively: exterior
doors, door steps, stoops, door frames, and hardware incident thereto; window and skylight
frames, panes, sills, screens, glass and hardware incident thereto; and internal and external
telephone wiring.
Exclusive Use Common Area reserved for each Owner shall be appurtenant to such
Owner's Unit and may not be conveyed or transferred apart from the Unit.
Except as expressly provided in this Declaration, no other portion of the Project is
Exclusive Use Common Area. All easements to Exclusive Use Common Area are subject to
the right of the Association to enter in and upon Exclusive Use Common Area as provided by
and pursuant to the limitations upon such right as set forth in this Declaration.
4.4 No Severance. No Owner shall be permitted to sever his, her or their Unit from
his, her or their membership in the Association and none of the component interests in a
Condominium can or shall be severed from the other component interests or separately sold,
conveyed, encumbered, hypothecated or otherwise transferred. Any sale, conveyance,
encumbrance, hypothecation, transfer or other action in violation of this prohibition shall be
void.
4.5 Provisions For Partition of Common Area. Except as expressly provided in this
clause, an Owner shall have no right to partition or divide his, her or their ownership of the
Common Area. Partition of the Common Area can be had on a showing that the conditions for
such partition as stated in Section 14.6 (relating to damage or destruction) or in Section 15.2
(relating to condemnation) or in Civil Code §1359 have been met. Nothing in this Declaration
shall prevent partition of a cotenancy in a Condominium. Proceeds or property resulting from a
partition shall be distributed to and among the respective Owners and their Mortgagees as their
interests appear in proportion to the ratio that the fair market value of each Owner's
Condominium bears to the fair market value of all Owners' Condominiums determined as
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provided in Section 15.4, but as of a date immediately prior to the event giving rise to the right
of Owners to partition the Common Area.
4.6 Leasing of Units and Delegation of Use.
(A) Subject to the Governing Documents, any Owner may delegate the
Owner's rights to use and enjoy the Common Area to members of the Owner's family, guests,
the Owner's tenants, employees and invitees.
(B) An Owner may rent his or her Unit subject to the provisions of this
section. Any lease or rental agreement between an Owner and a tenant shall be in writing and
shall provide that it is in all respects subject to the provisions of the Governing Documents, that
any failure by the tenant to comply with such provisions shall be a default under the lease or
rental agreement, and that all provisions of the Governing Documents shall be deemed
incorporated by reference in such lease or rental agreement. However, the failure of any lease
or rental agreement to so provide shall not excuse the tenant from complying with such
provisions. Any lease or rental agreement shall also provide that the tenant may not sublease
the Unit. In the event of such a default, the Owner shall take all action to cure the default
including, if necessary, eviction of the tenant. Each Owner -lessor shall provide any tenant or
lessee with a current copy of all Governing Documents. A renting Owner shall comply with any
and all applicable state and local laws regarding the rental of residential property. A copy of
any executed lease or rental agreement shall be kept with the Association's records.
(C) An Owner shall not be released or relieved from the obligation to pay
Assessments by reason of any lease or rental of such Owner's Unit, regardless of whether the
obligation to pay Assessments has been delegated to the tenant. The Association and each
Owner shall have a right of action directly against any tenant, as well as against the Owner, for
nonperformance of any of the provisions of the Governing Documents to the same extent that
such right of action exists against such Owner.
4.7 Obligations of Owners. Owners of Condominiums within the Project shall be
subject, without limitation, to the following:
(A) Notification of Use Delegation. Each Owner shall provide the other
Owners with the names of any contract purchaser or tenant of the Owner's Condominium, the
current address and telephone number of the Owner if the Owner is not residing on the Project
and a true and complete copy of any lease or rental agreement.
(B) Notification Regarding Governing Documents. This Section is intended to
implement the requirements established by Section 1368 of the California Civil Code. To the
extent that Section 1368 is amended or replaced, the provisions of this Section shall be
automatically amended and replaced by the new statutory provisions. As more particularly
provided for in California Civil Code §1368, as soon as reasonably practicable before transfer of
title or the execution of a real property sales contract with respect to any Condominium, the
Owner thereof must give the prospective purchaser: (i) a current copy of the Governing
Documents; (ii) a copy of the Association's most current financial statement; (iii) a true
statement in writing from the Association as to the amount of the current Regular and Special
Assessments and fees levied upon the Condominium being sold; (iv) a true statement in writing
(the "delinquency statement") as to the amount of any delinquent Assessments, together with
information relating to late charges, attorneys' fees, interest, and reasonable costs of collection
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which, as of the date the statement is issued, are or may become a lien on the Condominium
being sold; and (v) a true statement in writing if there is any change in the Association's current
Regular and Special Assessments and fees which have been approved by the Owners, but
have not become due and payable as of the date disclosure is provided pursuant to this
Section.
(C) Payment of Assessments. Each Owner shall pay when due all
Assessments levied in accordance with Article 12.
(D) Joint Ownership. In the event of joint ownership of any Condominium,
the obligations and liabilities of the multiple Owners under the Governing Documents shall be
joint and several.
ARTICLE 5 - EASEMENTS AND RIGHTS OF ENTRY
5.1 Rights of Entry and Use. Each Condominium and its Unit or the Common Area,
as the case may be, shall be subject to the following rights of entry and use:
(A) The right of the Association, or its agents, to enter any Unit and Exclusive
Use Common Area to cure any violation or breach of the Governing Documents, or to perform
maintenance as described in Section 8.5, provided that the Owner has received notice and a
hearing as required by Section 7.4 (except in the case of an emergency as reasonably
determined by the Association or its agents) and such Owner has failed to cure such violation
within thirty (30) days after the finding of such violation by the Association or, if such violation
cannot reasonably be cured within thirty (30) days, such Owner has failed to diligently take
steps necessary to cure such violation within thirty (30) days after the finding of such violation
by the Association;
(B) The right of the Association, or its agents to enter any of the Units and
Common Area, including Exclusive Use Common Area, to perform its obligations and duties
under this Declaration, including any obligations or duties with respect to construction,
maintenance or repair for the benefit of the Common Area or the Owners in common;
(C) The Association's rights of entry and cure shall be immediate in case of
an emergency, as reasonably determined by the Association, originating upon or threatening
any Unit or Exclusive Use Common Area, whether or not its Owner is present. For all non -
emergency entry purposes except as provided in Section 5.1(A), the Association or its agents
shall furnish the Owner or his, her or their lessee with at least forty-eight (48) hours' written
notice of its intent to enter the Unit or Exclusive Use Common Area, specifying the purpose and
scheduled time of such entry and shall make every reasonable effort to perform its work and
schedule its entry in a manner that respects the privacy of the persons residing within the Unit;
and
(D) Any easements as shown on the Map.
5.2 Support. Maintenance and Repair Easement. The Association and each Owner
shall have a non-exclusive right and easement appurtenant to the Common Area and to all
Units through each Unit and the Common Area, including Exclusive Use Common Area, for the
support, maintenance and repair of the Common Area, including Exclusive Use Common Area,
and all Units.
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5.3 Encroachment Easements. If any portion of the Common Area encroaches on
any Unit or if any portion of a Unit encroaches on the Common Area due to engineering errors,
errors in original construction, settlement or shifting of structures, or any other similar cause, a
valid easement exists for such encroachment and for the maintenance of it as long as it
remains, and all Units and the Common Area are made subject to such easements, and the
rights and obligations of Owners shall not be altered in any way by such encroachment;
provided, however, that in no event shall a valid easement for encroachment be created in favor
of an Owner or Owners if such encroachment occurred due to the intentional conduct of such
Owner or Owners. In the event any structure containing a Unit is partially or totally destroyed,
and then repaired or rebuilt and any minor encroachment on the Common Area results, a valid
easement exists for such encroachment and for the maintenance of it as long as it remains, and
all Units and the Common Area are made subject to such easements.
5.4 Power to Grant Easements. The Association, by unanimous vote, shall have the
power to grant and convey in the name of all the Owners as their attorney -in -fact (or in the
name of the Association as to any property to which the Association holds title) to any Owner or
other party easements and rights -of -way in, on, over, or under the Common Area for the
purpose of establishing Exclusive Use Common Area or other easements and for the purpose
of constructing, erecting, operating or maintaining lines, cables, wires, conduits, or other
devices for electricity, cable television, power, telephone and other purposes, public sewers,
storm water drains and pipes, water systems, sprinkler systems, water, heating and gas lines or
pipes, and any similar public or quasi -public improvements or facilities.
5.5 Easement to Governmental Entities. All governmental and quasi -governmental
entities, agencies and utilities and their agents shall have a non-exclusive easement over the
Common Area for the purposes of performing their duties within the Project.
5.6 Utility Maintenance Easement. The Association has the responsibility to
maintain in good working order, repair and replace any sanitary sewer, drainage, water, electric
and gas systems, pipes, lines and cables, as the case may be (collectively, "utility systems" or
"utilities") serving the Project, except that an Owner shall be exclusively responsible for those
portions of the utility systems that extend into such Owner's Unit. However, should the
Association fail within a reasonable time to maintain in good working order any utility system
serving any Unit after notice of the need for such maintenance is given by one Owner (the
"repairing Owner") to the other Owners, the repairing Owner is hereby reserved an easement
over and through the Project to maintain in good working order the utility systems serving the
repairing Owner's Unit, as follows:
(A) The repairing Owner shall have reasonable access to the Common Area,
any Exclusive Use Common Area, and any Unit as necessary to maintain, repair or replace any
utilities serving the repairing Owner's Unit. The repairing Owner's rights of entry and cure shall
be immediate in case of an emergency, as reasonably determined by the repairing Owner,
whether or not the affected Owner is present. For all non -emergency entry purposes the
repairing Owner shall furnish the affected Owner or his, her or their lessee with at least forty-
eight (48) hours' written notice of the repairing Owner's intent to enter the affected Owner's Unit
or Exclusive Use Common Area. Such notice shall specify the purpose and scheduled time of
such entry. The repairing Owner shall make every reasonable effort to perform maintenance
and schedule his, her or their entry in a manner that respects the privacy of the persons
residing within the affected Unit.
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(B) The Association shall reimburse, upon demand, the repairing Owner's
reasonable costs incurred in maintaining utilities serving the repairing Owner's Unit.
Reimbursable costs shall not include costs incurred in maintaining those portions of the utilities
that extend into the repairing Owner's Unit.
5.7 Easements to Maintain Heating Systems. An easement over and through the
Common Area, including Exclusive Use Common Area, is reserved by Declarant in favor of
each Owner for the purpose of allowing each Owner to maintain, repair or replace the heating
system and hot water heaters exclusively serving such Owner's Unit, wherever such heating
system and hot water heaters may be located.
5.8 Easements to Maintain Telephone and Cable Television Lines. Any Owner shall
have the right of reasonable access, for himself or herself and for the telephone or cable
company, over and through the Common Area, including Exclusive Use Common Area, for the
purpose of allowing each Owner to install, maintain, repair or replace the telephone and cable
television lines serving such Owner's Unit exclusively.
5.9 Other Easements. Each Condominium is subject to all easements, dedications,
and rights -of -way granted or reserved in, on, over, and under the Property as shown on the
Map.
ARTICLE 6 - THE ASSOCIATION: MEMBERSHIP AND VOTING RIGHTS
6.1 Unincorporated Association. The Association shall be an unincorporated
Association. The Association shall be charged with the duties and invested with the powers set
forth in this Declaration.
The specific and primary purpose of this Association is to be a residential condominium
management association organized and operated to provide for the management, maintenance
and care of the Project.
This Association is intended to qualify as a nonprofit homeowners' association under the
applicable provisions of the Internal Revenue Code and of the Revenue and Taxation Code of
California. No part of the net earnings of this Association shall inure to the benefit of any
Member other than by providing management, maintenance, and care of Project and other than
by a rebate of excess Assessments.
Notwithstanding any of the above statements of purposes and powers, this Association
shall not, except to an insubstantial degree, engage in any activities or exercise any powers
that are not in furtherance of the specific purposes of this Association.
6.2 Membership. Every person or entity who is a record Owner of a fee or undivided
fee interest in a Condominium, pursuant to the terms of this Declaration, shall be a Member of
the Association; provided, however, that no Owner shall hold more than one (1) membership
even though such Owner owns an interest in more than one (1) Condominium. Membership
shall be appurtenant to and may not be separate from the fee ownership of any Condominium.
Membership shall be held in accordance with this Declaration.
6.3 Transferred Membership. Membership in the Association shall not be
transferred, encumbered, pledged, or alienated in any way, except upon the sale or
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encumbrance of the Condominium to which it is appurtenant, and then only to the purchaser, in
the case of a sale, or the holder of a bona fide mortgage or deed of trust, in the case of an
encumbrance of such Condominium. Membership shall terminate automatically when the
Owner no longer holds any ownership interest in any Condominium. Upon any transfer of title
to an Owner's Condominium, including a transfer upon the death of an Owner, membership
passes automatically with the title to the transferee.
Notwithstanding anything to the contrary in this Declaration, a holder of a bona fide
mortgage or deed of trust does not have membership rights until it obtains title to the
Condominium through foreclosure or deed in lieu thereof. Any attempt to make a prohibited
transfer is void. No Owner may resign his, her or their membership. On notice of a transfer,
the Association shall record the transfer on its books.
6.4 Membership Voting. The Association shall have two (2) classes of voting
membership as follows:
(A) Class A: Class A Owners shall be all Owners, with the exception of
Declarant, and shall be entitled to one (1) vote for each Condominium owned. When more than
one (1) person holds an undivided fee interest in any Condominium, all such persons shall be
entitled to all rights and privileges of membership. The vote of such Condominium shall be
exercised as its Owners collectively determine, but in no event shall more than one (1) vote be
cast with respect to any Condominium.
(B) Class B: The Class B Owner shall be Declarant, who shall be entitled to
three (3) votes for each Condominium owned. The Class B membership shall cease and be
irreversibly converted to Class A membership on the occurrence of one of the following events,
whichever occurs first in time:
(1) At such time as the total outstanding votes held by Class A
Owners equal or exceed the total outstanding votes held by the Class B Owner; or
(2) A prescribed date which is not later than the third anniversary of
the first conveyance of a subdivision interest in the Project.
6.5 Vesting of Voting Rights. Voting rights shall vest at the time Assessments are
levied against the Owner's Condominium.
6.6 Voting Procedures. Any Owner may attend meetings of the Association and
vote in person or by an agent duly appointed by an instrument in writing signed by the Owner.
6.7 Joint Ownership Votes. The vote that is attributed to each Condominium may
not be cast on a fractional basis. If the Condominium has more than one Owner and the
Owners are unable to agree as to how the vote should be cast, the vote shall be forfeited on the
matter in question. If one Owner casts the vote attributed to a Condominium, the vote shall
conclusively bind all the Owners of that Condominium. If more than one Owner casts the vote
attributed to a Condominium, the votes cast by such Owners shall not be counted and shall be
considered void. Under no circumstances shall the Association be responsible to settle voting
disputes between joint Owners.
6.8 Approvals Required. Except as otherwise provided in the Governing
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Documents, all decisions and actions requiring the approval of Owners shall be deemed
approved if the Owners assent to them by written consent or by written ballot in accordance
with the procedures outlined in the Bylaws, or if approved at any duly called meeting at which a
quorum is present, either in person or by proxy, by Owners holding a majority of the total voting
power of all Owners present, either in person or by proxy. Documents to be executed by the
Association shall be signed by the appropriate required percentage of Owners.
ARTICLE 7 - THE ASSOCIATION: POWERS AND DUTIES
7.1 Powers of the Association. The Association shall have all the powers granted to
a nonprofit mutual benefit corporation, as enumerated in §7140 of the Corporations Code,
subject only to such limitations on the exercise of its powers as are set forth in this Declaration.
However, the Association, so long as it remains unincorporated, may not adopt or use a
corporate seal or issue membership certificates in accordance with §7313 of the Corporations
Code. The purposes and powers of the Association are to provide for the operation, control
and maintenance of certain parts of the Project, and to provide enforcement of the provisions of
the Governing Documents and any other instruments relating to the management and control of
the Association and the Project. Without in any way limiting the generality of the foregoing, the
Association shall have the power and authority to do all of the following acts:
(A) Contracts. The Association shall have the right and power to contract for
such services, labor, goods and materials for those parts of the Project the Association is
responsible to maintain as it may deem reasonable or necessary.
(B) Maintenance. The Association shall have the power to maintain, repair,
and make capital Improvements to the Project in accordance with Article 8. The Association
may also purchase equipment, tools, supplies and other personal property as the Association
deems necessary for use in such maintenance and repair.
(C) Assessments. The Association shall have the power to fix, levy, and
collect Assessments as provided in Article 12.
(D) Association Rules. The Association shall have the power from time to
time and subject to the provisions of this Declaration to adopt, amend and repeal Association
Rules which may include the establishment of a system of monetary penalties for failure of an
Owner to comply with the provisions of this Declaration or Association Rules. The Association
Rules shall not be inconsistent with the provisions of this Declaration. No Association Rule may
be adopted which discriminates among Owners or which materially affects the rights,
preferences or privileges of any Owner set forth in this Declaration. In the event of a breach or
threatened breach of any provision of the Governing Documents by any Owner or tenant, or an
occupant of such Owner's Unit, the Association may impose financial penalties on such Owner
as provided herein, and/or may temporarily suspend the voting rights of such Owner. The
imposition of any financial penalties or suspension of voting rights for violations of an
Association Rule must conform to the notice and hearing requirements set forth in Section 7.4.
Any amendment to the Association Rules shall be effective thirty (30) days from the date of
adoption thereof by the Association or at such later date as the Association may designate at
the time of adoption of the amendment. A copy of any new or revised Association Rule shall be
delivered to each Owner either in person or by mail, postage prepaid at least ten (10) days
before the effective date of such Association Rule.
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(E) Right to Enter. The Association's agents shall have the right to enter any
Unit in accordance with Section 5.1.
(F) Enforcement. The Association shall have the power and authority to
enforce the provisions and restrictions of the Governing Documents.
(G) Legal Action. The Association shall have standing to institute, defend,
settle or intervene in litigation, arbitration, mediation or administrative proceedings in its own
name as the real party in interest and without joining with it the individual owners of
Condominiums, in matters pertaining to enforcement of the Governing Documents as well as
matters pertaining to the exercise of its powers and the fulfillment of its duties in accordance
with the Governing Documents and applicable law.
The costs of any such legal action, including any reasonable attorneys' fees, shall be
charged against any Owner whose breach or threatened breach of the Governing Documents
caused the preparation and filing of such legal action, and may be recovered in the legal action
or through separate proceedings. Failure to enforce the provisions of the Governing
Documents shall not be deemed a waiver of the right to do so thereafter. All remedies provided
in the Governing Documents shall be cumulative and in addition to any other legal remedies
available.
(H) Manager. The Association may employ a professional Manager with
homeowner's association management experience, and the Association may delegate any or all
of its powers to such Manager subject to the limitations set forth in Section 7.3.
(I) Common Area. The Association is hereby irrevocably appointed as the
attorney -in -fact for the Owners of each and every Unit to (i) manage, control and deal with the
interests of such Owners in the Common Area so as to permit the Association to fulfill all of its
obligations hereunder and to exercise all of its rights hereunder. The acceptance by any
person or entity of any interest in any Unit shall constitute an appointment of the Association as
the Owner's attorney -in -fact as provided above.
7.2 Duties of Association. In addition to the duties and powers enumerated in the
Bylaws or elsewhere provided for herein, and without limiting the generality thereof, the
Association shall have the following duties:
(A) Maintenance. The Association shall maintain and repair parts of the
Project in accordance with Article 8.
(B) Acceptance of Members. Subject to the Association's right to suspend a
Member's voting rights in accordance with this Declaration, the Association shall accept all
Owners as Members.
(C) Annual Membership Meeting. The Association shall hold an annual
meeting of the members as provided in the Bylaws and any special meetings shall be called in
accordance with the Bylaws.
(D) Payment of Taxes and Utilities. The Association shall pay all real
property taxes and assessments levied upon the Project to the extent not separately assessed
to the Owners as provided in Section 9.3, and shall pay for any utilities serving the Common
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Area, except for those utilities serving the Common Area paid for by the Owners in accordance
with Section 9.1.
(E) Preparation and Distribution of Financial Statements. Reports. and
Copies of Governing Instruments. This Section is intended to implement the requirements
established by Section 1365 of the California Civil Code. To the extent that Section 1365 is
amended or replaced, the provisions of this Section shall be automatically amended and
replaced by the new statutory provisions. The Association shall prepare and distribute to its
Members the following financial statements, documents, reports, and copies of the Governing
Documents as follows:
(1) A pro forma operating budget for each "fiscal year" (as defined in
Section 12.6) shall be distributed not less than forty-five (45) days nor more than sixty (60) days
before the beginning of the fiscal year consisting of at least the following: (i) the estimated
revenues and expenses on an accrual basis; (ii) a summary of the Association's reserves
based on the most recent reserves review or study conducted under California Civil Code
§1365.5, which shall be printed in bold type and shall include the following: (a) the current
estimated replacement cost, estimated remaining life, and estimated useful life of each major
component that the Association is obligated to maintain (collectively the "major components");
and (b) as of the end of the fiscal year for which the study was prepared: (1) the current
estimate of cash reserves necessary to repair, replace, restore or maintain the major
components; (2) the current amount of accumulated cash reserves actually set aside to repair,
replace, restore or maintain the major components; and (3) the percentage of the amount in
(b)(1) that the amount in (b)(2) represents; (iii) a statement as to whether the Association has
determined or anticipates that the levy of one or more Special Assessments will be required to
repair, replace or restore any major component or to provide adequate reserves therefor; (iv) a
general statement addressing the procedures used for the calculation and establishment of
those reserves to defray the future repair, replacement, or additions to those major components
the Association is obligated to maintain; and (v) a general statement regarding the Member's
right to have copies of the minutes of meetings of the Association and how and when these
minutes may be obtained.
Instead of distributing the pro forma operating budget, the Association may elect to
distribute a summary of the budget to all of its Members with a written notice that the budget is
available at the business office of the Association or at another suitable location within the
boundaries of the Project and that copies will be provided on request at the expense of the
Association. The notice must be in at least 10-point bold type and must appear on the front
page of the summary of the budget. Any Member who requests a copy of the budget shall be
provided a copy by the Association by first class United States mail at the Association's
expense within five (5) days of the date the Association receives the request.
(2) An annual report consisting of a balance sheet rendered as of the
last day of the fiscal year, an operating statement for the fiscal year, and a statement of
changes in financial position for the fiscal year. A copy of the annual report shall be distributed
to any Mortgagee that has requested a copy and to each Owner within one hundred twenty
(120) days after the close of the fiscal year. In any fiscal year in which the gross income of the
Association exceeds $75,000, a review of the annual report shall be prepared by a licensee of
the California State Board of Accountancy in accordance with generally accepted accounting
principles, and a copy of the review shall be distributed with the annual report. If the annual
report is not reviewed by an independent accountant, the report shall be accompanied by the
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certificate of an authorized officer of the Association that the report was prepared from the
books and records of the Association without independent audit or review.
(3) A statement of the Association's policies and practices in
enforcing its remedies against Owners for delinquent Regular or Special Assessments including
the recording and foreclosing of liens against a delinquent Owner's Condominium. A copy of
this statement shall be distributed to each Owner and any Mortgagee that has requested a copy
within sixty (60) days prior to the beginning of each fiscal year.
(4) A summary of the Association's general liability policy that states
all of the following: (i) the name of the insurer; (ii) the policy limits of the insurance; (iii) if an
insurance agent, as defined in California Insurance Code §1621, an insurance broker, as
defined in California Insurance Code §1623, or an agent of an insurance agent or insurance
broker has assisted the Association in the development of the general liability policy limits, and
whether or not the recommendations of the insurance agent or insurance broker were followed;
(iv) the amounts of the insurance deductibles; (v) the person or entity that is responsible for
paying the insurance deductibles in the event of loss; and (vi) whether or not the insurance
coverage extends to the real property Improvements to the separate interests.
(5) A summary of the Association's earthquake and flood insurance
policy, if one has been issued, that states all of the following: (i) the name of the insurer; (ii) the
policy limits of the insurance; (iii) the amounts of the insurance deductibles; and (iv) the person
or entity that is responsible for paying the insurance deductibles in the event of loss.
(6) A summary of the liability coverage policy for the directors and
officers of the Association that lists all of the following: (i) the name of the insurer; and (ii) the
policy limits of the insurance.
(7) Notwithstanding subsections (E)(4), (E)(5) and (E)(6) above, the
Association shall, as soon as reasonably practical, notify the Owners by first-class mail if any of
the policies have been canceled and not immediately replaced. If the Association renews any
of the policies or a new policy is issued to replace an insurance policy of the Association, and
where there is no lapse in coverage, the Association shall notify the Owners of that fact in the
next available mailing to all Owners pursuant to California Corporations Code §5016. To the
extent that the information to be provided to the Owners pursuant to subsections (E)(4), (E)(5)
and (E)(6) above is specified in the insurance policy declaration pages, the Association may
meet the requirements of those subsections by making copies of those pages and distributing
them to all Owners.
(8) Copies of the Governing Documents, and the statement regarding
delinquent Assessments as described in Section 12.15 shall be provided to any Owner within
ten (10) days of the mailing or delivery of a written request.
(F) Schedule of Monetary Penalties. If the Association adopts or has
adopted a policy imposing any monetary penalty, including any fee, on any Member for a
violation of the Governing Documents, including any monetary penalty relating to the activities
of a guest or invitee of a Member, the Association shall adopt and distribute to each Member,
by personal delivery or first-class mail, a schedule of the monetary penalties that may be
assessed for those violations, which shall be in accordance with authorization for Member
discipline contained in the Governing Documents. The Association shall not be required to
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distribute any additional schedules of monetary penalties unless there are changes from the
schedule that was adopted and distributed to the Members pursuant to this section. Nothing in
this section shall be construed to create, expand or reduce the authority of the Association to
impose monetary penalties on a Member for a violation of the Governing Documents.
(G) Other Duties. The Association shall perform such other acts as may be
reasonably necessary to exercise its powers or perform its duties under any of the provisions of
the Governing Documents.
7.3 Limitations on Authority of a Manager. Except with the vote or written assent of
a majority of the Owners, the manager shall not take any of the following actions:
(A) Incur aggregate expenditures for capital improvements to the Common
Area in any fiscal year in excess of five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year;
(B) Sell during any fiscal year property of the Association having an
aggregate fair market value greater than five percent (5%) of the budgeted gross expenses of
the Association for that fiscal year;
(C) Pay compensation to members of the Association for services performed
in the conduct of the Association's business, provided that the Association may reimburse a
Member for reasonable expenses incurred in conducting the business of the Association; or
(D) Enter into a contract with a third person to furnish goods or services for
the Common Area 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 the term does
not exceed the shortest term for which the supplier will contract at the regulated rate; and
(2) Prepaid casualty and/or liability insurance policies that do not
exceed three (3) years duration, provided that the policy permits early cancellation by the
insured.
7.4 Due Process Limitations of the Association. Before the Association imposes any
Reimbursement Assessments, or suspensions of membership rights or Common Area use
privileges against any Member for failure to comply with the Governing Documents, and before
the Association's agents enter any Unit in accordance with Section 8.5, the Association must
act in good faith and must satisfy each of the following requirements:
(A) The Member must be given fifteen (15) days prior notice of the discipline to
be imposed and the reasons for the imposition of the discipline. The notice may be given by
any method reasonably calculated to give actual notice. If the notice is given by mail, it must be
sent by first-class or registered mail to the last address of the Member as shown on the
Association's records; and
(B) The Member must be given an opportunity to be heard, orally or in writing,
by the Association, not less than five (5) days before the effective date of the imposition of the
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discipline.
Notwithstanding anything to the contrary contained in this Section, the due process
requirements of this Section shall not apply to the Association's right to enforce the payment of
Regular or Special Assessments levied by the Association in accordance with the Declaration.
7.5 Impermissible Restrictions Upon Alienation. The Association shall not impose
any restrictions, whether directly or indirectly, on the right of an Owner to sell his, her or their
Condominium, except upon reasonable objective standards which are consistent within the
general plan of enhancing and perfecting the value, desirability and attractiveness of the
Project, none of which shall be based upon the race, color, religion, sex, sexual orientation,
marital status, national origin or ancestry of the purchaser.
7.6 Inspection of Association Books and Records. Any Owner, or that Owner's duly
appointed representative, after giving reasonable notice to the appropriate custodian, shall have
access to the Association's membership register, books of account, and minutes from any
meeting of the Owners, in order to inspect and copy such records for any purpose reasonably
related to his, her or their interest as an Owner. Access shall be at any reasonable time at the
office of the Association or such other place within the Project as the Association prescribes.
The Association shall establish rules regarding the notice the Owner must give to the custodian
of the records to obtain access, the hours and days of the week when the records may be
inspected and copied, and the charges imposed by the Association for copying records
requested by the Owner.
7.7 Records Kept by the Association. Commencing as soon as reasonably
available, but not later than thirty (30) days after the closing and recording of the sale of the first
Condominium, the following documents shall be maintained at the office of the Association or at
such other place within the Project as the Association shall prescribe:
(A) The recorded Map, the recorded Condominium Plan and all amendments
thereto, and the deeds and easements executed by Declarant conveying the Common Area or
other interest to the Association, to the extent applicable;
(B) The recorded Declaration including all amendments and annexations
thereto and the Association's Bylaws, and all amendments thereto;
(C) All Association Rules promulgated by the Association, including
architectural guidelines;
(D) The plans, if any, approved by the local agency or County where the
Project is located for the construction or improvement of facilities that the Association is
obligated to maintain or repair; provided, however, that the plans need not be as -built plans and
that the plans may bear appropriate restrictions on their commercial exploitation or use and
may contain appropriate disclaimers regarding their accuracy;
(E) All notice of completion certificates issued for Common Area
Improvements (other than residential structures), any bond or other security device in which the
Association is a beneficiary, and any written warranty being transferred to the Association for
Common Area equipment, fixtures or Improvements;
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(F) Any insurance policy procured for the benefit of the Association or the
Common Area and any lease or contract to which the Association is a party;
(G) The Membership register, including mailing addresses and telephone
numbers, books of account and any minutes of meetings of the Owners; and
(H) Any other instrument which establishes or defines the common, mutual
and reciprocal rights and responsibilities of the Owners or lessees of Condominiums.
ARTICLE 8 - MAINTENANCE AND REPAIR OBLIGATIONS
8.1 Owners' Maintenance Responsibilities. Except for those portions of the Project
which the Association is required to maintain and repair, each Owner shall, at his, her or their
sole cost and expense, maintain and repair his, her or their Unit, keeping the Unit in good
condition and repair. Each Owner shall bear the responsibility and sole cost and expense to
maintain, repair and replace: (i) the interior surfaces of all perimeter and interior walls, ceilings
and floors within his, her or their Unit (including carpeting, tile, wall paper, paint or other
coverings); (ii) any fixtures or utility connections within his, her or their Unit and attached to
ceilings, floors or walls, including, without limitation, toilets, showers, bathtubs, sinks, lighting
and plumbing fixtures, telephone facilities and battery operated smoke detectors; (iii) any and
all appliances within his, her or their Unit, including, without limitation, any garbage disposals,
refrigerators, ranges, ovens, dishwashers, washing machines and dryers, and hot water
heaters; (iv) air heating, hot water heating, ventilating and air conditioning equipment servicing
his, her or their Unit exclusively (including portions thereof which may be located outside of the
Unit); and (v) Unit entry and interior doors, door thresholds, door frames and hardware thereon,
screens and windows and hardware thereon, window glass, and internal and external telephone
wiring.
Each Owner also shall, at his, her or their sole cost and expense, maintain and clean
the interiors and exteriors of any skylight glass, windows and other glass surfaces of his, her or
their Unit, and maintain, repair, replace and periodically sweep and clean the fireplace
chimneys and flues of his, her or their Unit, if any.
Also, each Owner shall be responsible to repair the plaster walls that are technically part
of the Common Area, but which are adjacent to the "Unit", except the Association shall repair
any damage if such damage is directly caused by work being performed on the Project by or on
behalf of the Association. Any Owner replacing plaster or drywall shall endeavor to insulate the
walls as best as reasonably possible.
8.2 Exclusive Use Common Area Maintenance Responsibilities. The Association
shall maintain Exclusive Use Common Area parking spaces, patios and balconies, keeping
them in good condition and repair. Each Owner shall be responsible for the maintenance,
repair and replacement of all other Exclusive Use Common Area appurtenant to such Owner's
Unit.
8.3 Association's Maintenance Responsibilities. Except for those portions of the
Project that an Owner must maintain, repair and replace as set forth in Sections 8.1 and 8_2,
the Association shall be solely responsible for all maintenance, repair, upkeep and replacement
of the Common Area. No person other than the Association or its duly authorized agents shall
construct, reconstruct, refinish, alter or maintain any part of the Common Area or add any
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Improvement to the Common Area, except as set forth in Sections 8.1 and/or 8_2, or fill or
change the natural or existing drainage of any portion of the Common Area. The Association
shall have the Project periodically inspected for wood destroying pests and organisms and shall
take appropriate corrective measures therefor, and shall be responsible for the repair and
replacement of all termite damage, dry rot and other damage caused by wood destroying pests
to the Common Area.
8.4 Maintenance of Utilities. Subject to the provisions of Section 5.6, the Association
shall have the exclusive right and responsibility to operate and maintain in good working order
any of the utility systems serving the Project, including all sewer lines and plumbing pipes,
except for those portions of the utility systems that extend from the Common Area into an
Owner's Unit, which such Owner shall be solely responsible to maintain. The Association shall
make such repairs and replacements to those portions of the utility systems that the
Association is responsible to repair and replace as may be necessary or desirable from time to
time for the benefit of the Owners.
8.5 Association's Right to Maintain or Repair a Unit. Subject to the notice and
hearing requirements provided in Section 7.4, the Association, subject to the unanimous
approval of the other Owners, shall have the right to maintain, repair and replace at an Owner's
expense any portion of such Owner's Unit or the Exclusive Use Common Area appurtenant to
such Owner's Unit which such Owner has failed to maintain, repair or replace, if such
maintenance or repair is reasonably necessary in the opinion of the other Owners to preserve
the appearance and value of the Project, and such Owner has failed or refused to perform such
maintenance and repair within thirty (30) days after written notice of the necessity of such
maintenance and repair is delivered by the Association to such Owner or, if such maintenance
and repair cannot reasonably be completed within thirty (30) days, such Owner has failed or
refused to diligently take steps necessary to perform such maintenance and repair within thirty
(30) days after written notice of the necessity of such maintenance and repair is delivered by
the Association to such Owner. The Association may levy a Reimbursement Assessment to
collect from such Owner any costs incurred with respect to such maintenance, repair or
replacement.
8.6 Willful or Negligent Acts. To the extent not covered by casualty insurance in
favor of the Association, each Owner shall be responsible and liable to the remaining Owners
and to the Association for any willful or negligent acts or omissions committed by (i) such
Owner, (ii) the occupants and tenants residing in such Owner's Unit, and (iii) the respective
family members, guests, invitees and agents of such Owner and of the occupants and tenants
residing in such Owner's Unit, who cause (a) the need for repair, maintenance or replacement
of those parts of the Project that the Association has the right and responsibility to maintain
other than that required due to ordinary wear and tear, or (b) the need for repair, maintenance
or replacement to or for another Unit, any Exclusive Use Common Area appurtenant to such
Unit or to the personal property of another Owner. The Association may levy a Reimbursement
Assessment to collect from such Owner any costs incurred with respect to such maintenance,
repair or replacement. Nothing herein shall be construed to enable any insurer to be
subrogated to the rights of any insured party as to any loss as to which the insurer has waived
its right of subrogation.
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ARTICLE 9 - UTILITIES AND TAXES
9.1 Utilities. Each Owner shall pay for telephone, electricity, gas, water and other
utilities or services furnished to or for his, her or their Unit and Exclusive Use Common Area
which are separately metered to such Owner's Unit.
9.2 Segregated Taxes. To the extent allowed by law, all Condominiums, including
their undivided interest in the Common Area and the membership of an Owner in the
Association, shall be separately assessed and taxed so that all taxes, assessments, and
charges that may become liens prior to Mortgages under local law shall relate only to the
individual Condominiums and not to the Project as a whole. Each Owner shall be obligated to
pay any taxes or assessments assessed by any governmental entity against such Owner's
Condominium and against such Owner's personal property. The Association shall pay all taxes
and assessments levied against the Association or the personal property owned by the
Association.
9.3 Unsegregated Taxes. Until such time as real property taxes have been
segregated by the County Tax Assessor, the Association shall pay all real property taxes and
assessments levied upon the Project. Each Owner shall pay his or her proportionate share of
any installment due under the tax bill to the Association at least ten (10) days before the
delinquency date, and the Association shall transmit the taxes to the appropriate tax collection
agency. The proportionate share of the taxes for each Condominium shall be determined by
multiplying the total amount of taxes for the entire project by a fraction, the numerator of which
is the purchase price paid by each Owner for his or her Unit and the denominator of which is
the total of the purchase prices for all Units. For purposes of this Section, the purchase price of
any Unit owned by Declarant shall be determined as follows: (i) prior to any reassessment of
the Property by the tax collector as a result of Declarant's construction of Improvements to the
Property, by multiplying the assessed value of the Property for the year prior to the first sale of
a Condominium by the percentage interest of such Unit in the Common Area as such
percentage interest is listed in Exhibit C; or (ii) after any reassessment of the Property by the
tax collector as a result of Declarant's Improvements to the Property, by multiplying the
reassessed value resulting from the construction of such Improvements by the percentage
interest of such Unit in the Common Area as such percentage interest is listed in Exhibit C.
The Association, at least forty-five (45) days before the delinquency date of any tax
installment, shall deliver to each Owner a copy of the tax bill, along with a written notice setting
forth the Owner's obligation to pay his or her proportionate share of the tax installment. The
Association shall pay the taxes on behalf of any Owner who does not pay his or her
proportionate share and shall use any available sums or borrow any sums as may be required
to make the payments on behalf of delinquent Owners. The Association shall levy a
Reimbursement Assessment against any delinquent Owner in the amount of any sum
advances, plus interest and a reasonable late charge to cover the administrative expenses of
the Association in collecting the amount due. There shall be included as part of any such
Reimbursement Assessment the amount necessary to reimburse the Association for any
penalties and interest incurred by the Association in connection with the tax bill, which penalty
and interest results from the failure of the delinquent Owner to make timely payment of his or
her proportionate share of taxes.
Such taxes and assessments may be contested by the Association; provided, however,
that any such contested taxes shall be paid or a bond insuring the payment shall be posted
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prior to the sale or other disposition of any property to satisfy the payment of such taxes.
Notwithstanding anything to the contrary in this Declaration, each Owner shall be solely
responsible for (i) any personal property tax levied upon that Owner's personal property, (ii) any
business tax levied upon that Owner's business property or income, and (iii) any increase in
property taxes resulting from the sale or purchase of such Owner's Unit.
ARTICLE 10 - COVENANTS AND USE RESTRICTIONS
10.1 Prohibited Uses. No Condominium shall be occupied and used except for
residential purposes by the Owners, their tenants and social guests, and no trade or business
shall be conducted within the Project, except that an Owner, but not a tenant, may operate a
home business within such Owner's Unit as permitted by and pursuant to local law.
10.2 Unlawful Activity/Nuisances. No Owner shall permit anything to be done or kept
in his, her or their Unit or within the Project that violates any law, ordinance, statute, rule or
regulation of any local, county, state or federal governmental agency. Nothing shall be done
within the Project that is an unreasonable annoyance, inconvenience or nuisance or that
unreasonably interferes with the quiet enjoyment of occupants of Units. No automobiles or
other motorized vehicles shall be repaired within the Project. No horns, whistles, bells or other
sound devices, except security devices used exclusively to protect the security of a Unit and its
contents, shall be placed or used within any Unit. No unreasonably loud noises, loud music,
loud television, electro-mechanical or electromagnetic disturbance, vibrations, noxious odors or
radiation disturbance shall be permitted within the Project. No use is allowed which creates
conditions that are hazardous, noxious or offensive through the emission of odor, fumes,
smoke, cinders, dust, gas, vibrations, glare, refuse, water -carried waste, or excessive noise.
No doorways, driveways, walkways or streets shall be obstructed in any manner that would
interfere with their use for ingress or egress in the event of a fire, earthquake or other
emergency.
10.3 No Smoking. No one shall smoke at any time anywhere in the Common Area
portions of the Project, under the windows of any Unit, or in the doorways to the building.
10.4 Occupancy Limitations. In no event shall any Unit be occupied by more persons
than allowed under local law.
10.5 Fires. There shall be no external fires whatsoever, except barbecues burned in
an appropriate barbecue receptacle.
10.6 Signs. No advertising signs or billboards shall be displayed on or within the
Project except that Owners may post in the windows of their Units any signs required by legal
proceedings and a single "For Rent," "For Lease" or "For Sale" sign of customary and
reasonable dimensions. Signs of real estate brokers advertising Units for sale or lease shall
only be allowed within the Common Area in strict compliance with applicable Association Rules.
The Association may summarily cause all unauthorized signs to be removed or destroyed. This
Section is not intended to restrict constitutional rights of free speech and expression.
10.7 Antennas and Other Additions. Subject to any qualifying provisions in the
Association Rules, no Owner shall construct, install, erect or maintain any television or radio
pole or antenna, flag pole, or clothes line within the Common Area or within the Project except
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wholly within such Owner's Unit and below the level of the roof of such Unit. The Association
shall designate locations for any television antennas and satellite dishes.
10.8 Pets. No animals, livestock or poultry of any kind shall be raised, bred or kept within
the Project, except the following pets may be kept in a Unit: a reasonable number of small caged
pets, such as fish, gerbils, or hamsters, and no more than two (2) cats or one (1) cat and (1) small
dog which weighs less than thirty-five (35) pounds. Dogs shall not be permitted to bark so as to
disturb other Owners. Animals shall not be permitted on the Common Area except, under the
supervision and restraint of its Owner, for that amount of time reasonably necessary to transfer
such pet off the Property from a Unit or through the Property to a Unit. All pets must be kept
flea free. An Owner shall promptly clean up after any pet that has soiled the Common Area,
and an Owner shall pay to repair any damage caused by such Owner's pet. No animal shall be
allowed to make an unreasonable amount of noise or otherwise to become a nuisance.
10.9 Trash. Trash, garbage and other waste shall be regularly removed from each
Unit and shall be disposed of in trash containers. The Association shall designate permissible
locations for trash containers within the Project. The Association may establish reasonable
regulations to allow for the recycling of recyclable materials.
10.10 Insurance. Nothing shall be done or kept in or on any Unit or in the Common
Area that would increase the rate of or cause the cancellation of insurance on the Project or any
portion thereof without the prior written consent of the Association.
10.11 Gas or Liquid Storage. No tank for the storage of gas or liquid shall be installed
within the Project without the prior written consent of the Association.
10.12 Diseases and Pests. No Owner shall permit any thing or condition to exist in his,
her or their Unit or within the Project which shall induce, breed, or harbor infectious plant
diseases, rodents or noxious insects.
10.13 Trees. No tree on the property shall be cut down without the consent of the
Association.
10.14 Mechanic's Liens. If a notice of mechanic's lien is filed against the Project for
labor or material alleged to have been furnished to or delivered for any Owner within the Project
or at his, her or their Unit, the Owner shall immediately cause the lien to be discharged by
payment, bond or otherwise. If the Owner fails to discharge the lien, the Association may hold
a hearing in accordance with Section 7.4 to determine the effect of the lien and any offsets or
defenses thereto. At the hearing, if the Association determines that the lien adversely and
improperly affects and encumbers the ownership interests of other Owners and that no
adequate protection of the interests of other Owners has been provided, the Association may
cause the lien to be discharged by payment, bond or otherwise. The Association shall then levy
a Reimbursement Assessment against the Owner(s) responsible for the existence of the lien.
The Association may take whatever other action it deems necessary to properly protect the
interests of the Owners.
10.15 Alterations to Units. Notwithstanding the provisions of Article 11, Owners may
alter or remodel the interiors of their Units (excluding load bearing walls), if the alterations do
not (i) impair the structural or acoustical integrity of the Unit or of the building containing the
Unit; (ii) impair or affect the utilities or other systems servicing the Common Area or another
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Unit; or (iii) involve altering the Common Area. Each Owner must comply with all laws and
ordinances regarding alterations and remodeling.
ARTICLE 11 - ARCHITECTURAL CONTROL
11.1 Architectural Control. Except as permitted pursuant to Section 10.15, no
Improvement of any kind shall be commenced, erected or maintained within the Project, no
addition to or change or alteration be made in or to any Unit or to any Exclusive Use Common
Area and no exterior painting or exterior staining shall be done within the Project until the plans
and specifications showing the color, nature, kind, shape, height (including front, side and rear
elevations), materials, and location of the same shall have been submitted to and approved in
writing by the Association as to quality of workmanship and materials, harmony of external
design and location in relation to surrounding structures, setback lines, topography and finish
grade elevation. Nothing contained herein shall be construed to limit the right of an Owner to
paint the interior of his, her or their Unit any color desired.
11.2 Submission of Plans: Action by Association. Plans and specifications for the
proposed Improvement shall be submitted to the secretary by personal delivery or certified mail.
In the event the Association fails to approve or disapprove such design and location within thirty
(30) days after said plans and specifications have been submitted to it, the request shall be
deemed to have been denied, in which case, the written request may be resubmitted. In the
event the Association fails to approve or disapprove such design and location within thirty (30)
days after this second submission, the request shall be deemed to have been approved. The
Association's approval may contain conditions or requests for modification of particular aspects
of the Owner's plans and specifications. The Association may apply both subjective and
objective criteria when reviewing plans and specifications for any Improvement.
11.3 Permits. Before commencement of any Improvements, the Owner shall comply
with all appropriate and applicable governmental laws and regulations and shall obtain, at such
Owner's sole expense, all required permits.
11.4 Estoppel Certificate. Within thirty (30) days after written demand is delivered to
the secretary by any Owner, and upon payment to the Association of a reasonable fee (as fixed
from time to time by the Association), the Association shall execute an estoppel certificate,
executed by any two of its members, certifying (with respect to any Unit owned by the applicant
Owner) that as of the date thereof, either (i) all Improvements made and other work completed
by said Owner with respect to the Unit comply with this Declaration; or (ii) that such
Improvements or work do not so comply, in which event the certificate shall also identify the
noncomplying Improvements or work and set forth with particularity the bases of such
noncompliance. Any purchaser from the Owner, through the Owner, shall be entitled to rely on
said certificate with respect to the matters therein set forth, such matters being conclusive as
between the Association, all Owners and any persons deriving any interest through them.
ARTICLE 12 - ASSESSMENTS
12.1 Covenant to Pay Assessments. Declarant covenants and agrees for each
Condominium owned by it in the Project that it is expressly made subject to Assessments as set
forth in this Declaration, and each Owner by acceptance of a deed covenants and agrees for
each Condominium owned, to pay to the Association the Assessments authorized by this
Declaration, and to allow the Association and the other Owners to enforce any Assessment lien
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established in accordance with the provisions of this Declaration by nonjudicial proceedings
under a power of sale or by any other means authorized by law.
12.2 Personal Obligation. Each Assessment or installment, together with any late
charge, interest, collection costs and reasonable attorneys' fees, shall be the personal
obligation of the Owner, at the time such assessment or installment becomes due and payable,
and shall bind such Owner's heirs, devisees, personal representatives and assigns. If there is
more than one (1) Owner of a particular Condominium at such time, each Owner shall be jointly
and severally liable. No Owner can exempt himself or herself from payment of Assessments or
installments by waiving the use or enjoyment of all or any portion of the Common Area, or by
abandonment or leasing of his, her or their Unit or by any other means.
12.3 Use of Regular Assessments. Regular Assessments shall be used to pay for the
expenses of the Association in performing its duties in accordance with this Declaration, to
improve, replace, repair, operate, and maintain the Common Area and to promote the health,
safety and welfare of the occupants of the Units.
12.4 Reserve Funds. Each annual Regular Assessment shall include a portion for
reserves in such amount as the Association in its discretion considers appropriate to meet the
cost of the future repair, replacement or additions to the major components that the Association
is obligated to maintain and repair. Reserve funds shall be deposited in a separate account
and the withdrawal of money from reserve accounts shall require (i) a duly executed resolution
of the Association authorizing the withdrawal from the reserve account, and (ii) the signatures of
at least two (2) Owners of separate Units, and at least one of the two (2) Owners shall be an
officer of the Association. Reserve funds may not be expended for any purpose other than
repair, restoration, replacement, or maintenance of, or litigation involving the repair, restoration,
replacement, or maintenance of, major components that the Association is obligated to
maintain.
Notwithstanding the foregoing, the Association may authorize the temporary transfer of
money from a reserve fund to the Association's general operating fund to meet short term cash -
flow requirements or other expenses. The transferred funds shall be restored to the reserve
fund within one (1) year of the date of the initial transfer, provided that the Association, on the
making of a finding supported by documentation that a delay is in the best interest of the
Project, may delay the restoration for the amount of time that the Association reasonably
determines to be necessary. The Association shall exercise prudent fiscal management in
delaying restoration of these funds and in restoring the expended funds to the reserve account,
and shall, if necessary, levy a Special Assessment to recover the full amount of the expended
funds within the time limits required.
At least once every three (3) years, the Association shall cause a study to be conducted
of the reserve account requirements if the current replacement value of the major components
that the Association is obligated to repair, replace, restore, or maintain is equal to or greater
than one-half of the gross budget of the Association for any fiscal year. The Association shall
review this study annually and shall consider and implement necessary adjustments to the
Association's analysis of the reserve account requirements as a result of that review.
The study shall, at a minimum, include: (i) identification of the major components that
the Association is obligated to repair, replace, restore, or maintain that, as of the date of the
study, have a remaining useful life of Tess than thirty (30) years; (ii) identification of the probable
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remaining useful life of the components identified in subparagraph (i) as of the date of the
study; (iii) an estimate of the cost of repair, replacement, restoration, or maintenance of the
components identified in subparagraph (i) during and at the end of their useful life; and (iv) an
estimate of the total annual contribution necessary to defray the cost to repair, replace, restore,
or maintain the components identified in subparagraph (i) during and at the end of their useful
life after subtracting total reserve funds as of the date of the study.
As used herein, "reserve accounts" means money that the Association has identified for
use to defray the future repair or replacement of, or additions to, those major components that
the Association is obligated to maintain; and "reserve account requirements" means the
estimated funds that the Association has determined are required to be available at a specified
time to repair, replace, or restore those major components that the Association is obligated to
maintain.
12.5 Levy of Regular Assessments. The Association shall establish and levy an
annual Regular Assessment in an amount that has been approved by the Association which is
estimated to be sufficient to raise the funds needed to perform the duties of the Association
during each fiscal year (as defined in Section 12.6). The Association shall fix the amount of the
annual Regular Assessment not less than forty-five (45) or no more than sixty (60) days in
advance of each fiscal year. If the Association fails to so fix the amount of the Regular
Assessment, the Regular Assessment applicable for the previous fiscal year shall remain in
effect until the Association shall fix a new Regular Assessment, which may be retroactive to the
commencement of the fiscal year in question.
12.6 Commencement of Regular Assessments. Regular Assessments shall
commence as to all Condominiums on the first day of the month next following the effective
date of this Declaration. The first fiscal year shall be the period commencing on the date
Regular Assessments commence and ending on the December 31 next following. Subsequent
fiscal years shall be each successive calendar year; provided, however, that at any time the
Association may change the fiscal year. Each Owner shall be entitled to pay annual Regular
Assessments in twelve (12) equal monthly installments, one installment payable on the first day
of each calendar month during the fiscal year, as long as the Owner is not delinquent in the
payment of any monthly installment. If an Owner fails to pay any monthly installment by the
thirtieth (30th) day of the month and after fifteen (15) days written notice from the Association,
that Owner's right to continue to pay the Regular Assessment in monthly installments shall
immediately terminate for that fiscal year and the Owner shall be required to immediately pay
the entire balance of the current year's Regular Assessment.
12.7 Special Assessments. In addition to the Regular Assessment, the Association
may, from time to time, levy a Special Assessment against all Condominiums if the Association
determines that the Association's available funds are or will become inadequate to meet the
estimated expenses of the Association, including the maintenance of appropriate reserves, for a
particular fiscal year for any reason, including, without limitation, unanticipated delinquencies,
costs of construction, unexpected repairs or replacements of capital Improvements or
otherwise. The Association shall determine the amount necessary to meet the estimated
expenses, and if the amount is approved by a majority vote of the Association, it shall become a
Special Assessment. The Association may levy the entire Assessment immediately or levy it in
installments over a period it considers appropriate.
12.8 Revised Assessments. If at any time during the course of any year the
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Association shall deem the amount of an Assessment to be inadequate or overadequate by
reason of a revision of its estimate of either expenses or income, or otherwise, the Association
may revise the Assessment for the balance of the fiscal year. The Association shall provide
notice by first-class mail to the Owners of any increase in a Regular or Special Assessment not
less than thirty (30) nor more than sixty (60) days prior to the increased Assessment becoming
due.
12.9 Allocation of Assessments. With the sole exception described later in this
Section 12.9. both Regular and Special Assessments shall be allocated among, assessed
against, and charged to each Condominium and its Owner according to each Owner's
percentage interest in the Property as a tenant in common, as set forth in Exhibit C.
Reimbursement Assessments shall not be subject to these allocation provisions.
12.10 Reimbursement Assessments. After compliance with the notice and hearing
requirements in Section 7.4, the Association may levy a Reimbursement Assessment against
any Condominium and its Owner for the purpose of collecting (i) monetary penalties imposed by
the Association for violation of the Governing Documents; (ii) amounts required to repay or
reimburse the Association for any liability of an Owner pursuant to Section 8.6; (iii) amounts
required to reimburse the Association for costs and expenditures incurred in performing work or
rendering services in accordance with Section 8.5; and (iv) any other amounts owed to the
Association in accordance with the Governing Documents. Notwithstanding anything to the
contrary in this Declaration, a Reimbursement Assessment levied against a Condominium may
not become a lien against such Condominium that is enforceable by a power of sale under the
California Civil Code. This restriction on enforcement is not applicable to late charges, interest,
or collection costs, including reasonable attorneys' fees, assessed in connection with delinquent
Regular or Special assessments.
12.11 Delinquent Assessments. Any Assessment due, including any installment due,
shall become delinquent if payment is not received by the Association within fifteen (15) days
after its due date. If an Owner allows any Assessment to become delinquent, such Owner shall
also pay a late charge equal to ten percent (10%) of the delinquent Assessment or Ten Dollars
($10) whichever is greater. A late charge may not be imposed more than once on any
delinquent payment, but it shall not eliminate or supersede any late charges imposed with
respect to prior delinquent payments. Interest also shall accrue on any delinquent payments at
the rate of twelve percent (12%) per annum, commencing thirty (30) days after the Assessment
becomes due. The Association may suspend a delinquent Owner's right to vote on Association
matters while any delinquent Assessment remains unpaid.
12.12 Creation of Assessment Lien. The amount of any delinquent Assessment or
installment, together with any accompanying other charges such as interest, late charges and
costs (including attorneys' fees), as may be levied by the Association pursuant to the provisions
of this Declaration, shall be and become a lien upon the Condominium against which the
Assessment was levied when the Association causes to be recorded in the official records of
the County a Notice of Delinquent Assessment, which notice shall state: (i) The amount of the
delinquent Assessment and such other charges thereon as may be authorized by this
Declaration; (ii) A description of the Condominium against which the same has been assessed;
(iii) The name of the record Owner of the Condominium assessed; and (iv) If the lien is to be
enforced by power of sale under nonjudicial foreclosure proceedings, the name and address of
the trustee authorized by the Association to enforce the lien by sale.
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Such notice shall be signed by an authorized representative of the Association. Upon
payment of the delinquent Assessment and charges in connection with which such notice has
been so recorded, or other satisfaction thereof, the Association, at the delinquent Owner's cost
and expense, shall cause to be recorded a further notice stating the satisfaction and the release
of the lien thereof. The lien provided for herein shall be prior to all other liens recorded
subsequent to the recordation of such Notice of Delinquent Assessment.
12.13 Foreclosure Under Assessment Lien. The Association may enforce any
Assessment lien established under Section 12.12 in any manner permitted by law, including,
without limitation, by judicial foreclosure or, if the notice of delinquent Assessment contained
the name and address of the trustee authorized by the Association to enforce the lien, by
nonjudicial foreclosure. Any nonjudicial foreclosure shall be conducted in accordance with the
requirements of Civil Code §§2924, 2924b, 2924c, 2924f, 2924g, 2924h, and 2924j that apply
to nonjudicial foreclosures of mortgages or deeds of trust, as the same may be amended from
time to time. The sale shall be conducted by the trustee named in the notice of delinquent
Assessment or by a trustee substituted in accordance with the provisions of Civil Code §2934a.
The Association may bid on the Condominium at the sale, and may hold, lease, mortgage, or
convey the acquired Condominium. If the default is cured before the sale, or before completing
a judicial foreclosure, including payment of all costs and expense incurred by the Association,
the Association shall record a notice of satisfaction and release of lien, and, on receipt of a
written request by the delinquent Owner, a notice of rescission of the declaration of default and
demand for sale.
12.14 Waiver of Homestead Protections. Each Owner, to the extent permitted by law,
waives the protections of any declared homestead or homestead exemption under the laws of
California as applied to any action to enforce the Assessments levied by the Association.
12.15 Estoppel Certificate. Within ten (10) days of mailing or delivery of written request
by any Owner, the Association shall provide the Owner with a written statement containing the
following information: (i) whether, to the knowledge of the Association, the Owner or the
Owner's Condominium is in violation of any of the provisions of the Governing Documents; (ii)
the amount of Assessments, including installment payments, paid by the Owner during the
fiscal year in which the request is received; (iii) the amount of any Assessments levied against
the Owner's Condominium that are unpaid as of the date of the statement, including any late
charges, interest, or costs of collection that as of the date of the statement are or may be made
a lien against the Owner's Condominium, as provided by the Governing Documents; and (iv)
any change in the Association's current Regular and Special Assessments and fees approved
by the Association but not yet due and payable as of the date of the statement.
The Association may charge the Owner a fee to recover its reasonable costs in
preparing the statement. Any prospective purchaser or mortgagee of the Owner's
Condominium may rely on the information in this written statement, provided that reliance may
not extend to any violation of the Governing Documents of which the Association does not have
actual knowledge.
ARTICLE 13 - INSURANCE/INDEMNITY
13.1 Fire And Casualty Insurance. The Association shall obtain and maintain a
master or blanket policy of all risk property insurance coverage for all the Improvements within
the Project, insuring against loss or damage by fire or other casualty, in an amount equal to the
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current full replacement cost (without respect to depreciation) of such Improvements, and
exclusive of land, foundations, excavation and other items normally excluded from coverage.
Replacement cost, inflation and building code upgrade endorsements shall be part of the policy
to the extent each endorsement is available. The policy shall name as insured the Association,
the Owners and all Mortgagees of record, as their respective interests may appear, and may
contain a loss payable endorsement in favor of the Insurance Trustee described below.
(A) Insurance Trustee. If the insurance proceeds payable under this Section
13.1 exceed Fifty Thousand Dollars ($50,000), then the proceeds shall be paid to and held by
the Insurance Trustee in trust for the Association, Owners and Mortgagees, as their respective
interests shall appear.
13.2 Other Insurance. Unless the Owners determine otherwise pursuant to Section
13.3, the Association shall also obtain and maintain the following insurance:
(A) A hazard policy insuring all equipment and fixtures owned by the
Association, unless the Association determines that such insurance is not necessary;
(B) Comprehensive general liability insurance insuring the Association, its
agents, and the Owners and their respective family members against any liability incident to the
ownership or use of the Project, and including, if obtainable, a cross liability or severability of
interest endorsement insuring each insured against liability to each other insured. Such
insurance shall provide a combined single limit of not less than Two Million Dollars ($2,000,000)
covering all claims for death, personal injury, and/or property damage arising out of a single
occurrence;
(C) Workers' compensation insurance to the extent required by law;
(D) To the extent available, insurance in an amount not Tess than One Million
Dollars ($1,000,000) on behalf of any officer of the Association against any liability asserted
against or incurred by the officer in such capacity or arising out of the officer's status as such;
(E) Flood insurance if the Project is located in an area designated by an
appropriate governmental agency as a special flood hazard area; and
(F) If obtainable at a cost deemed reasonable by the Owners, water damage
insurance, liability for non -owned and hired automobile insurance, fidelity bonds or insurance
covering officers, Members and employees that have access to any Association funds, and
such other insurance as the Owners in their discretion consider necessary or advisable.
13.3 Requirements. If the Association is unable to purchase a policy or if the Owners
believe that the cost of the policy is unreasonable, the Owners may decide to maintain policies
of insurance that differ from the requirements of Sections 13.1 and 13.2.
The form, content, and term of the policies and their endorsements and the issuing
company must be satisfactory to all institutional first Mortgagees. If more than one institutional
first Mortgagee has a loan of record against a Condominium in the Project, the policies and
endorsements shall meet the maximum standards of the various first Mortgagees represented
in the Project. If institutional first Mortgagees do not impose requirements on any such policy
required hereunder, the term, amount and coverage of such policy shall be no Tess than that
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which is customary for similar policies on similar projects in the area.
Any insurance maintained by the Association shall contain "waiver of subrogation" as to
the Association, its officers, Owners and the occupants of the Units and Mortgagees, and, if
obtainable, a cross liability or severability of interest endorsement insuring each insured against
liability to each other insured. The Association shall periodically (and not less than once every
three (3) years) review all insurance policies maintained by the Association to determine the
adequacy of the coverage and to adjust the policies accordingly.
13.4 Owner's Property Insurance. No Owner shall separately insure his, her or their
Unit or any part of it against Toss by fire or other casualty covered by any insurance carried by
the Association. If any Owner violates this provision, any diminution in insurance proceeds
otherwise payable under the Association's policies that results from the existence of such other
insurance will be chargeable to the Owner who acquired other insurance.
However, it is possible that the insurance maintained by the Association may not cover
the Owner's personal property, and may not insure the Owner individually against liability. Any
Owner can insure his, her or their personal property against loss, and any Owner can and
should obtain individual liability insurance if not individually covered by the Association's policy.
In addition, any Improvements made by an Owner within his, her or their Unit may be
separately insured by the Owner, but the insurance is to be limited to the type and nature of
coverage commonly known as "tenant's improvements." All such insurance that is individually
carried must contain a waiver of subrogation rights by the insurer as to the Association, its
officers, other Owners and the occupants of the Units and Mortgagees.
13.5 Indemnity. To the extent not covered by insurance maintained by the
Association or any Owner, each Owner shall indemnify, protect, defend, and hold harmless the
Association, its manager, the officers, and all other Owners from and against all liability, Toss,
claims, and demands of third persons to the extent arising out of the acts or omissions of (i)
such Owner, and the occupants and tenants residing in such Owner's Unit, and (ii) such
Owner's, occupant's or tenant's respective family members, guests, invitees and agents. Each
Owner, by acceptance of his, her or their deed, agrees personally and for family members,
contract purchasers, tenants, guests and invitees, to indemnify each and every other Owner,
the Association, its manager and officers, and to hold them harmless from, and to defend them
against, any claim of any person for personal injury or property damage occurring within the
Unit of that particular Owner, except to the extent (i) that such injury or damage is covered by
liability insurance in favor of the Association or other Owner or (ii) the injury or damage
occurred by reason of the willful or negligent act or omission of another Owner, the Association,
its manager or an officer.
13.6 Provision To Adjust Losses. The Association is appointed attorney -in -fact by
each Owner to negotiate and agree on the value and extent of any Toss under any policy carried
by the Association pursuant to this Article 13. The Association is granted full right and authority
to compromise and settle any claim or enforce any claim by legal action or otherwise and to
execute releases in favor of any insured.
ARTICLE 14 - DAMAGE AND DESTRUCTION
14.1 Proceeds Exceed 85 Percent of Reconstruction Costs. If there is a total or
partial destruction of the Improvements in the Project, and if the available proceeds of the
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insurance carried pursuant to Section 13.1 are sufficient to cover not Tess than eighty-five
percent (85%) of the costs of repair and reconstruction, the Improvements shall be promptly
rebuilt.
14.2 Proceeds Less Than 85 Percent of Reconstruction Costs. If the proceeds of
insurance carried pursuant to Section 13.1 are Tess than eighty-five percent (85%) of the costs
of repair and reconstruction, the Improvements shall be promptly rebuilt unless, within ninety
(90) days from the date of destruction, a majority of Owners entitled to vote, in person or by
proxy at a duly constituted meeting, determine that repair and reconstruction shall not take
place. If such a meeting is called, the Association shall solicit and obtain bids from at least two
reputable contractors to repair and reconstruct the Improvements in accordance with the
original plans and shall present this information to the Owners at the meeting. If repair and
reconstruction is to take place, the Association shall be required to execute, acknowledge, and
record in the office of the County Recorder of the County not later than one hundred twenty
(120) days from the date of destruction, a certificate declaring the intention of the Owners to
rebuild.
14.3 Responsibility to Rebuild. If any damage or destruction to the Project is to be
rebuilt pursuant to Sections 14.1 or 14.2 above, the Owners of all Condominiums shall be
obligated to contribute such funds as shall be necessary to pay their proportionate share of the
cost of rebuilding or reconstruction, over and above the available insurance proceeds. The
proportionate share of each Owner shall be based upon each Owner's proportionate undivided
interest in the Common Area. If any Owner fails to pay his, her or their proportionate share, the
Association may levy a Special Assessment against the Condominium and such Owner, which
may be enforced in any manner provided in this Declaration.
14.4 Rebuilding Contract. If the Owners determine to rebuild, the Association or the
Insurance Trustee shall, after obtaining bids from at least two (2) reputable contractors, award
the repair and reconstruction work to the lowest bidder that otherwise meets the requirements
set forth by the Association in soliciting bids. The Association shall have the authority to enter
into a written contract with the contractor for the repair and reconstruction, and the insurance
proceeds shall be disbursed to this contractor according to the terms of the contract. It shall be
the obligation of the Association to take all steps necessary to assure the commencement and
completion of authorized repair and reconstruction at the earliest possible date.
14.5 Rebuilding Not Authorized. If the Owners determine not to rebuild, then subject
to rights of institutional first Mortgagees as set forth in Section 16.7, any insurance proceeds
then available for such rebuilding shall be distributed to each Owner according to the relative
fair market values of their Condominiums. The Association shall select an independent
appraiser who shall be a member of the Society of Real Estate Appraisers or other nationally
recognized appraiser organization and who shall determine such relative values in accordance
with the standards of such organizations as of the date immediately prior to such destruction.
The cost of such appraisals shall be paid from the insurance proceeds. The Association shall,
within one hundred twenty (120) days from the date of destruction, execute, acknowledge, and
record in the office of the County Recorder of the County, a certificate declaring the intention of
the Owners not to rebuild.
14.6 Revival of Right to Partition. On recordation of the certificate described above in
Section 14.5, the right of an Owner to partition through legal action as described in Section 4.5
shall revive immediately. In addition, each Owner by accepting a deed to a Condominium,
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grants to the Association an irrevocable power of attorney to sell the entire Project for the
benefit of the Owners, to terminate this Declaration, and to dissolve the Association. The net
proceeds following the sale of the Project and dissolution of the Association shall be distributed
to the Owners in the same manner that insurance proceeds are distributed under Section 14.5.
ARTICLE 15 - EMINENT DOMAIN
15.1 Sale by Unanimous Consent. If an action for condemnation of all or a portion of
the Project is proposed or threatened by any governmental agency having the right of eminent
domain, then, on unanimous written consent of all the Owners and all institutional Mortgagees,
the Project or a portion of it may be sold and conveyed to the condemning authority by the
Association or its designees acting as the attorney -in -fact of all of the Owners under an
irrevocable power of attorney, which each Owner by accepting a deed to a Condominium in the
Project grants to the Association and which shall be coupled with the interest of all other
Owners, for a price deemed fair and equitable by the Association. If the requisite number of
Owners or institutional Mortgagees do not consent to a sale of all or a portion of the Project,
and the condemning authority institutes condemnation proceedings, the court shall fix and
determine the condemnation award.
15.2 Total Sale or Taking. If there is a total sale or taking of the Project, meaning a
sale or taking (i) that renders more than fifty percent (50%) of the Units uninhabitable (such
determination to be made by the Association in the case of a sale and by the court in the case
of a taking) or (ii) that renders the Project as a whole uneconomical as determined by the vote
or written consent of a majority of those Owners and their respective institutional Mortgagees
whose Units will remain habitable after the taking, the right of any Owner to partition through
legal action as described in Section 4.5 shall revive immediately. However, any determination
that a sale or taking is total must be made before the proceeds from any sale or award are
distributed. The proceeds of any such total sale or taking of the Project, together with the
proceeds of any sale pursuant to a partition action, after payment of all expenses relating to the
sale, taking, or partition action, shall be paid to all Owners and to their respective Mortgagees in
proportion to the ratio that the fair market value of each Owner's Condominium bears to the fair
market values of all Condominiums in the Project. The fair market value of Condominiums shall
be determined in the condemnation action, if such be instituted, or by an Appraiser pursuant to
Section 15.4.
15.3 Partial Sale or Taking. In case of a partial sale or taking of the Project, meaning
a sale or taking that is not a total taking as described in Section 15.2, the proceeds from the
sale or taking shall be paid or applied in the following order of priority, and any judgment of
condemnation shall include the following provisions as part of its terms:
(A) To the payment of expenses of the Association in effecting the sale or to
any prevailing party in any condemnation action to whom such expenses are awarded by the
court to be paid from the amount awarded; then
(B) To Owners and their respective Mortgagees, as their interests may
appear, of Condominiums in the Project whose Units have been sold or taken, in an amount up
to the fair market value of such Condominiums as determined by the court in the condemnation
proceeding or by an appraiser selected by the Association, who meets the qualifications
described in Section 15.4, less such Owner's share of expenses paid pursuant to the preceding
subsection (A) (which share shall be in proportion to each Owner's undivided interest in the
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Common Area). After such payment, the recipient shall no longer be deemed an Owner, and
the Association or individuals authorized by the Association, acting as attorney -in -fact of all
Owners shall amend the Condominium Plan, the Map (if necessary), and this Declaration to
eliminate from the Project the Condominiums so sold or taken and to adjust the undivided
ownership interest of the remaining Owners in the Common Area based upon the ratio that
each remaining Owner's undivided interest bears to all the remaining Owner's undivided
interest in the Common Area; then
(C) To any remaining Owner and to his, her or their Mortgagees, as their
interests may appear, whose Condominium has been diminished in fair market value as a result
of the sale or taking disproportionately to any diminution in value of all Condominiums, as
determined pursuant to Section 15.4, but as of a date immediately after any announcement of
condemnation, an amount up to the total diminution in value; then
(D) To all remaining Owners and to their respective Mortgagees, as their
interests may appear, the balance of the sale proceeds or award in proportion to the ratio that
the fair market value of each remaining Owner's Condominium bears to the fair market value of
all remaining Owners' Condominiums as determined by the court in the condemnation
proceeding or by an appraiser pursuant to Section 15.4.
15.4 Fair Market Value as Appraisal Standard. Whenever in this Article 15 reference
is made to a determination of the value or fair market value of one or more Condominiums, it
shall mean the fair market value of each such Condominium as of a date immediately prior to
the announcement of condemnation, as determined by an appraisal by an independent
appraiser selected by the Association, who shall be a member of the Society of Real Estate
Appraisers or other nationally recognized appraiser organization and who shall apply its or such
other organization's standards in determining the value or fair market value of each
Condominium. The costs of such appraisals shall be paid from the sale proceeds.
ARTICLE 16 - MORTGAGEE PROTECTION
16.1 Interpretation. In the event any provision of this Article 16 is inconsistent with or
contrary to any other provision of this Declaration, the provisions of this Article 16 shall control.
16.2 Notices. Any first Mortgagee or Insurer or Guarantor, by written notice to the
Association setting forth the Condominium encumbered, the Owner thereof and the address to
which notices may be sent, may request and thereby be entitled to receive written notice from
the Association of the occurrence of any of the following: (i) any default which is outstanding for
sixty (60) days or longer by the Owner of such Condominium in the performance of his, her or
their obligations under or in compliance with the provisions of the Governing Documents; (ii)
any damage to or destruction of any portion of the Project; (iii) any proposed or threatened
taking by power of eminent domain of any portion of the Project; (iv) any lapse, cancellation or
material modification of any insurance policy or bond maintained by or required to be
maintained by the Association; and (v) any proposed action which under the provisions of
Sections 16.5 and 16.6 would require the consent of a certain percentage of first Mortgagees.
16.3 Mortgagee's Right to Information. Institutional first Mortgagees shall have the
right to examine the books and records of the Association.
16.4 Deemed Consent. Any first Mortgagee who receives a written request to
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approve additions or amendments who does not deliver or post to the requesting party a
negative response within thirty (30) days after the notice of the proposed addition or
amendment shall be deemed to have approved such request, provided the notice has been
delivered to the first Mortgagee by certified or registered mail, return receipt requested.
16.5 Restriction on Certain Changes. Unless at least a majority of the first
Mortgagees (based upon one (1) vote for each Mortgage owned), and a majority of the Owners
of the individual Condominiums in the Project have given their prior written approval, the
Association and/or the Owners shall not be entitled to: (i) By act or omission, seek to abandon
or terminate the Project except for abandonment or termination provided by law in the case of
substantial destruction by fire or other casualty, or in the case of taking by condemnation or
eminent domain; (ii) Change the method of determining the obligations, Assessments or dues
or other charges which may be levied against an Owner, or change the prorata interest or
obligations of any Condominium for purposes of levying Assessments or charges or allocating
distributions of hazard insurance proceeds or condemnation awards or for determining the
prorata share of ownership of each Owner in the Common Area; (iii) By act or omission,
change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to the
architectural design or the exterior appearance or maintenance of the Project; (iv) Fail to
maintain the required insurance in accordance with Article 13; (v) Use hazard insurance
proceeds for other than the repair, replacement or reconstruction of the damaged portions of
the Project for which such proceeds were paid to the Association except as provided by law in
the case of substantial destruction by fire or other casualty, or in the case of taking by
condemnation or eminent domain; or (vi) Partition or subdivide any Unit.
16.6 Consent to Action. The unanimous consent of the Owners and the approval of
at least a majority of all first Mortgagees (based upon one (1) vote for each Mortgage owned)
shall be required to add or amend any material provisions of the Governing Documents which
establish, provide for, govern or regulate any of the following: (i) voting rights; (ii) increases in
Regular Assessments that raise the previously assessed amount by more than twenty-five
percent (25%), Assessment liens or priority of such liens; (iii) reductions in reserves for
maintenance, repair and replacement of Common Area; (iv) responsibility for maintenance and
repair; (v) reallocation of interests in the Common Area or Exclusive Use Common Area or
rights to their use; (vi) redefinition of any Unit boundary; (vii) convertibility of Units into Common
Area or Common Area into Units; (viii) expansion or contraction of the Project or the addition,
annexation or withdrawal of property to or from the Project; (ix) hazard or fidelity insurance
requirements; (x) imposition of any restrictions on the leasing of Units; (xi) imposition of any
restrictions on a Unit Owner's right to sell or transfer his, her or their Condominium; (xii)
restoration or repair of the Project (after damage or partial condemnation) in a manner other
than that specified in this Declaration; (xiii) any provisions which are for the express benefit of
first Mortgagees, Insurers or Guarantors; or (xiv) any action to terminate the legal status of the
Project after substantial destruction or condemnation occurs.
If any Mortgagee fails to submit a response to any written proposal for an amendment to
the Governing Documents within thirty (30) days after it receives proper notice of the proposal,
provided the notice was delivered by certified or registered mail with a return receipt requested,
the Mortgagee shall be considered to have granted approval.
For purposes of this Section 16.6, an addition or amendment shall not be considered
material if it is for the purpose of correcting technical errors, or clarification only.
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16.7 Priority in Insurance and Condemnation Proceeds. No Owner, or any other
party, shall have priority over any right of institutional first Mortgagees of Condominiums
pursuant to their Mortgages in case of a distribution of insurance proceeds or condemnation
awards for losses to or taking of Units or Common Area. Any provision to the contrary in the
Governing Documents is to such extent void. All applicable fire and all physical Toss or
extended coverage insurance policies shall contain loss payable clauses acceptable to the
affected institutional first Mortgagees, naming the Mortgagees as their interests may appear.
16.8 Right of First Refusal. Any Mortgagee who obtains title to a Condominium
pursuant to the remedies provided in the Mortgage or through foreclosure of the Mortgage, or
deed or assignment in lieu of foreclosure, shall be exempt from any right of first refusal which
may now or in the future exist for the benefit of the Association or other Owners, and no such
right of first refusal shall impair the rights of any first Mortgagee to (i) foreclose or take title to a
Condominium pursuant to the remedies provided in the Mortgage, or (ii) accept a deed or
assignment in lieu of foreclosure in the event of default by a mortgagor, or (iii) sell or lease a
Condominium acquired by the Mortgagee.
16.9 Subordination. The provisions contained in this Declaration shall not defeat or
render invalid the lien of any Mortgage which is made in good faith and for value. The lien of
any Assessments plus any charges thereon, such as interest, late charges and costs (including
attorneys' fees), shall be subordinate to the lien of any first Mortgage recorded before the date
such Assessments or other charges become due. This subordination shall apply only to
Assessments that have become due and payable before a sale or transfer of such
Condominium pursuant to a decree of foreclosure or exercise of power of sale. Any Mortgagee
who acquires title to or comes into possession of a Condominium pursuant to remedies
provided for in the Mortgage, including foreclosure by judicial action or exercise of power of
sale, and any purchaser at a foreclosure sale, shall take the Condominium free of any claims
for unpaid Assessments or charges against the Condominium that have accrued before the
time such Mortgagee or purchaser acquires title to or comes into possession of the
Condominium; provided, however, this exception shall not be applicable to any prorata claim for
Assessments or charges levied by the Association against all Condominiums for the purpose of
recovering any revenue lost by reason of the nonpayment of past due Assessments upon such
Condominium; and provided further, that except as otherwise provided in this Section 16.9, all
of the limitations, restrictions, covenants, conditions, easements, liens, charges, Assessments,
and equitable servitudes contained herein shall be binding upon any Owner whose title is
derived through foreclosure sale, trustee's sale or otherwise. Except as provided above, the
sale, transfer or conveyance of title to a Condominium shall not relieve such Condominium from
a duly recorded lien for any such prior unpaid Assessment nor relieve a selling Owner from
personal liability for any Assessments which became due and payable before such sale,
transfer or conveyance.
16.10 Payments by Mortgagees. Any Mortgagee, after at least ten (10) days prior
written notification to the Association of the items to be paid and the failure of the Association
within such time to make payment, may pay, alone or in conjunction with other Mortgagees,
delinquent taxes, liens or assessments that are not separately assessed against an individual
Condominium that may be or become a charge against the Project as a whole, and any
overdue premiums on policies of fire and extended coverage insurance for the Project and in
the event of a lapse of such a policy of insurance, may pay premiums to secure a new policy.
In the event such payments are made, the Mortgagee making such payment shall be entitled to
immediate reimbursement from the Association to the extent of the payment made.
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16.11 Contracts. Any agreement for professional management of the Project may not
exceed one (1) year. Any such agreement or contract must provide for termination by either
party for cause on thirty (30) days written notice, or without cause and without payment of a
termination fee or penalty on ninety (90) days or Tess written notice.
16.12 Effect of Breach of Declaration on Mortgagee. No breach of any provision of this
Declaration shall invalidate the lien of any Mortgage made in good faith and for value; but all of
the covenants, conditions and restrictions shall be binding on any Owner whose title is derived
through foreclosure sale, trustee's sale or otherwise. Any Mortgagee who acquires title to a
Condominium by foreclosure or by deed in lieu of foreclosure or assignment in lieu of
foreclosure shall not be obligated to cure any breach of this Declaration that is noncurable or of
a type that is not practical or feasible to cure.
ARTICLE 17 - ENFORCEMENT/ARBITRATION/MEDIATION
17.1 Rights to Enforce. The Association and/or any Owner shall have the power to
enforce the provisions of the Governing Documents in any manner provided by law or in equity
and in any manner provided in this Declaration, and in such action or through a separate
proceeding shall be entitled to recover reasonable attorneys' fees and costs as are ordered by
the court or arbitrator. The Association may institute appropriate legal action, temporarily
suspend an Owner's voting rights and/or levy a fine against an Owner in a standard amount to
be determined by the Association from time to time.
17.2 Violation of Law. The Association may treat any Owner's violation of any state,
municipal or local law, ordinance or regulation, which creates a nuisance to the other Owners in
the Project or to the Association, in the same manner as a violation of the Governing
Documents by making such violation subject to any or all of the enforcement procedures set
forth in this Declaration, as long as the Association complies with the notice and hearing
requirements set forth in Section 7.4.
17.3 Remedies Cumulative. Each remedy provided by this Declaration is cumulative
and not exclusive.
17.4 Mediation Between Owners. Before instituting any judicial action, arbitration, or
other proceeding relating to the rights and/or duties of the parties under the Governing
Documents, other than Association Assessments, the Owner who desires to initiate such action
(the "Complaining Party") must make a good faith attempt to mediate the dispute pursuant to
this Section. The Complaining Party shall send the other party (the "Responding Party") written
notice of the nature of the dispute, the facts giving rise to its claim and its desire to mediate (the
"Mediation Notice"). Should either party commence a judicial action, arbitration or other
proceeding without sending a Mediation Notice, the Responding Party shall be entitled to stay
the action and request a Mediation Notice from the Complaining Party. The Mediation Notice
shall name a mediator. The Complaining Party shall be obligated to pay any fee to initiate
mediation, but the cost of mediation shall ultimately be borne as determined by the parties if the
mediation results in a settlement of the dispute. If the Responding Party does not agree with
the complaining Party's choice of a mediator, the parties shall, within ten (10) days from the
Responding Party's receipt of the Mediation Notice, ask the American Arbitration Association to
pick a mediator from its panel. Within thirty (30) days after the mediator is chosen, the parties
shall schedule and attend a mediation and attempt in good faith to resolve their dispute. If the
mediation does not resolve the dispute or if the Responding Party refuses to attend, the
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Complaining Party shall be free to commence arbitration. The requirements of this Section
shall not apply under circumstances where the Complaining Party is entitled to a temporary
restraining order or preliminary injunction in order to avoid irreparable harm or injury.
17.5 Arbitration Between Owners. In case of any claim or dispute between the
Owners, which claim or dispute relates to the rights and/or duties of the parties under the
Governing Documents, other than Association Assessments, the dispute shall be submitted to,
and conclusively determined by, binding arbitration in accordance with this Section, provided,
however, that the provisions of this Section shall not preclude any party from seeking injunctive
or other provisional or equitable relief in order to preserve the status quo of the parties pending
resolution of the dispute, and the filing of an action seeking injunctive or other provisional relief
shall not be construed as a waiver of that party's arbitration rights.
The arbitrators shall be selected and the arbitration conducted in accordance with the
Commercial Arbitration rules of the American Arbitration Association.
ARTICLE 18 - MISCELLANEOUS PROVISIONS
18.1 Construction of Provisions. The provisions of this Declaration shall be construed
liberally to effect its purpose of creating a uniform plan for the development and operation of a
condominium project pursuant to the provisions of Section 1350, et. seq. of the California Civil
Code.
18.2 Independence of Provision. The provisions of this Declaration shall be
independent and severable. Invalidation or partial invalidation of any provision of this
Declaration by judgment or court order shall not affect any other provision of this Declaration,
and the remaining provisions shall remain in full force and effect.
18.3 Failure Not a Waiver. The failure of any Owner, the Association or its officers or
agents to enforce any of the covenants, conditions, restrictions, limitations, reservations, grants
or easements, rights, right-of-way, liens charges or equitable servitudes contained in the
Governing Documents shall not constitute a waiver of the right to enforce the same thereafter,
nor shall such failure result in or impose any liability upon the Association or any of its officers
or agents.
18.4 Notices. Unless otherwise indicated herein, notices shall be in writing and shall
be addressed as follows: if to an Owner, to the address of his, her or their Condominium; and,
if to the Association, to the president of the Association and the other Owners. The Owners
may designate a different address for notices by giving written notice of such change of address
to the Association.
18.5 Headings. The headings used in this Declaration are for convenience and
reference only and the words contained therein shall not be held to expand, modify, or aid in the
interpretation, construction, or meaning of this Declaration.
18.6 Number/Gender. The singular shall include the plural and the plural the singular
unless the context requires the contrary; and the masculine, feminine and neuter shall each
include the masculine, feminine or neuter, as the context may require. "Person" shall include
any individual, corporation, partnership, trustee or other legal entity capable of holding title to
real property.
- CC&R'S -
CASPIAN
CONDOMINIUMS
Printed: 10/30/2002
PAGE 36
18.7 Amendments. This Declaration may be amended only by the majority vote (in
person or by proxy) or written consent of Owners. Any amendment must be certified in a
writing executed and acknowledged by all Owners and recorded in the Recorder's Office of the
County of Alameda.
18.8 Successor Statutes. Any reference in the Governing Documents to a statute
shall be deemed a reference to any amended or successor statute.
18.9 Recitals. The recitals contained on page 1 shall be incorporated in and made a
part of this Declaration.
18.10 Exhibits. All Exhibits attached to this Declaration are incorporated herein and
made a part hereof by this reference.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has executed
this Declaration of Covenants, Conditions and Restrictions as of the date first above set forth.
MOMOOCHEHR JAVAHERIAN, Trustee
MEHRI SERRAFAN, Trustee
"DECLARANT"
- CC&R'S -
CASPIAN
CONDOMINIUMS
Printed. 10/30/2002
PAGE 37
ACKNOWLEDGMENT
State of California
County of Alameda
On before me,
date Name, Title Officer - E.G., "Jane Doe, Notary Public"
personally appeared
Name(s) of Signer(s)
❑ personally known to me - or - 0 proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
State of California
County of Alameda
On before me,
date
Name, Title Officer - E.G., "Jane Doe, Notary Public"
personally appeared
Name(s) of Signer(s)
0 personally known to me - or - 0 proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
EXHIBIT A
PROPERTY DESCRIPTION
CASPIAN CONDOMINIUMS
The Property is defined as follows:
That parcel of land in the City of Burlingame, County of San Mateo, State of
California, described as follows:
All of the real
day of
through
California.
property shown on Parcel Map No. , filed for record the
, , in Book of Parcel Maps at page(s)
, in the Official Records of the County of San Mateo, State of
EXHIBIT C
SCHEDULE OF UNDIVIDED INTEREST IN COMMON AREA
CASPIAN CONDOMINIUMS
The percentage of ownership interest of each Owner as a tenant in common is
as follows:
Condominium Unit No. Percentage Interest
Unit 1 ONE-THIRD
Unit 2 ONE-THIRD
Unit 3 ONE -SIXTH
Unit 4 ONE -SIXTH