HomeMy WebLinkAboutPM 2018-03 - Agreement/Covenant - DCC&Rs - 9/26/2018 3� IIII III I IIII II II II IIII IIII I I IIII III I IIII I III III II
FRESNO County Recorder
Paul Dictos, C.P.A.
RECORDING REQUESTED BY: DCC— 2018-0117214
Thornton Law Group, P.C. Check Number 1455
Wednesday, SEP 26, 2018 09:27:31
WHEN RECORDED MAIL TO: Ttl Pd $187,00 Rcpt # 0005080430
Thornton Law Group, P.C. ARG/R3/1-32
1725 N. Fine Ave.
Fresno, CA 93727
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
THE GROVE 4065 PROFESSIONAL CENTER,
AN OFFICE CONDOMINIUM PROJECT
TABLE OF CONTENTS
RECITALS 1
ARTICLE I. DEFINITIONS 1
ARTICLE II. THE PROPERTY 3
ARTICLE III. OWNERS' ASSOCIATION 7
ARTICLE W. ASSESSMENTS AND COLLECTION PROCEDURES 13
ARTICLE V. USE RESTRICTIONS AND COVENANTS 17
ARTICLE VI. ARCHITECTURAL AND DESIGN CONTROL 18
ARTICLE VII. INSURANCE 19
ARTICLE VIII. DAMAGE OR DESTRUCTION 20
ARTICLE IX. EMINENT DOMAIN 22
ARTICLE X. RIGHTS OF MORTGAGEES 23
ARTICLE XI. AMENDMENTS 26
ARTICLE XII. GENERAL PROVISIONS 27
ARTICLE XIII. RIGHTS OF CITY 28
00069669.v5
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DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
THE GROVE 4065 PROFESSIONAL CENTER
THIS DECLARATION is made on the date hereinafter set forth by G.J.N. Development, LLC
("Declarant"), a California limited liability company.
-RECITALS
A. Declarant is the owner of that certain real property located in the City of Fresno,
County of Fresno, State of California, and more particularly described on Exhibit A attached to
and made a part of this Declaration (the "Property").
B. Declarant intends to subdivide the Property into condominium estates subject to the
provisions of the Commercial and Industrial Common Interest Development Act contained in
Division 4, Part 5.3 of the California Civil Code, and to establish a plan of ownership for the
benefit of all the condominium estates created.
C. In furtherance of this intent, Declarant hereby declares that all of the Property is
and shall continue to be held,conveyed,hypothecated,encumbered, leased, rented,used,occupied,
and improved subject to the declarations, limitations, covenants, conditions, restrictions,
reservations, rights, and easements set forth in this Declaration, as this Declaration may be
amended from time to time, all of which are declared and agreed to be in furtherance of a plan
established for the purpose of enhancing and perfecting the value, desirability, and attractiveness
of the Property. All provisions of this Declaration shall constitute covenants running with the land
and enforceable equitable servitudes upon the Property, and shall be binding on and for the benefit
of all of the Property and all parties having or acquiring any right,title,or interest in all or any part
of the Property, including the heirs, executors, administrators, and assigns of these parties and all
subsequent owners and lessees of all or any part of a condominium estate.
Article I. DEFINITIONS
Section 1.01 "Articles" means the Articles of Incorporation of The Grove 4065 Professional
Center Owners Association and any amendments thereto that are or shall be filed in the Office of
the Secretary of State of the State of California.
Section 1.02 "Association" means The Grove 4065 Professional Center Owners Association, a
California nonprofit mutual benefit corporation.
Section 1.03 "Board" means the Board of Directors of the.Association.
Section 1.04 "Bylaws" means the Bylaws of the Association and amendments thereto that are or
shall be adopted by the Board.
Section 1.05 "City" means the City of Fresno, County of Fresno, State of California.
00069669.v5 1
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Section 1.06 "Common Area" means the entire Project except all Units as defined in this
Declaration or as shown on the Condominium Plan.
Section 1.07 "Condominium" means an estate in real property consisting of a fee interest in a
Unit, the boundaries of which are shown and described on the condominium Plan, a fractional
undivided interest as a tenant in common in the Common Area of the Project,a Membership in the
Association, and any Exclusive Use Common Area appurtenant to the Unit. The fractional interest
appurtenant to each Unit shall be an undivided interest equal to the percentage of the square footaSe
of the Unit divided by the square footage of the Common Area.
Section 1.08 "Condominium Plan" means that condominium plan described in and attached to
this Declaration as Exhibit A.
Section 1.09 "Declarant" means G.J.N. Development, LLC, a California limited liability
company, and its successors and assigns.
Section 1.10 "Declaration" means this Declaration and any amendments thereto:
Section 1.11 "Exclusive Use Common Area" means those portions of the Common Area
reserved for the exclusive use of one or more of the Owners pursuant to Section 2.04 of this
Declaration.
Section 1.12 "First Mortgage" means a .mortgage that has priority over all other mortgages
encumbering the same Condominium or other portions of the Project.
Section 1.13 "First Mortgagee" means a mortgagee that has priority over all other mortgages or
holders of mortgages encumbering the same Condominium or other portions of the Project.
Section 1.14 "Governing Documents" means this Declaration, the Articles and Bylaws of the
Association, and any Rules and Regulations of the Project.
Section 1.15 "Institutional Mortgagee" means a mortgagee that is a financial intermediary or
depository, such as a bank, savings and loan,or mortgage company,that is chartered under federal
or state law and that lends money on the security of real property or invests in such loans, or any
insurance company or governmental agency or instrumentality, including the Federal National
Mortgage Association (FNMA), the Federal Home Loan Mortgage Corporation (FHLMC), and
the Government National Mortgage Association (GNMA).
Section 1.16 "Manager" means any person or entity appointed by the Board to manage the
Project.
Section 1.17 "Member" means every person or entity entitled to membership in the Association
as provided in this Declaration.
Section 1.18 "Mortgage" means a mortgage or deed of trust encumbering a Condominium or any
other portion of the Project.
00069669A 2
Section 1.19 "Mortgagee" means a person to whom a Mortgage is made and includes the
beneficiary of a deed of trust and any guarantor or insurer of a mortgage.
Section 1.20 "Mortgagor" means a person who mortgages his,her,or its property to another(i.e.,
the maker of a mortgage), and shall include the trustor of a deed of trust.
Section 1.21 "Owner" means the record holder or holders of record fee title to a Condominium,
including Declarant, and any contract sellers under recorded contracts of sale. "Owner" shall not
include any persons or entities that hold an interest in a Condominium merely as security for
performance of an obligation.
Section 1.22 "Project" means the entire parcel of real property described on the Condominium
Plan and all improvements thereon.
Section 1.23 "Property" means.the real property described in the Recitals.
Section 1.24 "Rules and Regulations" means any rules and regulations for The Grove 4065
Professional Center regulating the use of the Common Area and adopted by the Association
pursuant to Section 3.06(b) of this Declaration.
Section 1.25 "Unit" means that portion of a Condominium that consists of a fee interest in a Unit.
"Unit" does not include the other elements of a Condominium. Each Unit shall be a separate
freehold estate, as separately shown, numbered, and designated in the Condominium Plan. Each
Unit consists of space or spaces bounded by and contained within the interior unfinished surfaces
of the perimeter walls, floors,ceilings, windows,and doors(including the wall coverings and floor
coverings), as shown on the Condominium Plan.
Article I1. THE PROPERTY
Section 2.01 Project Subject to Declaration. The entire Project shall be subject to this
Declaration.
Section 2.02 Common Area. The following provisions govern the use and enjoyment of the
Common Area:
(a) The Association shall have an easement in, to, and throughout the Common Area and its
improvements to perform its duties and exercise its powers.
(b) Except as provided in this Declaration, there shall be no judicial partition of the Common
Area, nor shall Declarant or any person acquiring an interest in all or any part of the Project
seek any judicial partition.
(c) Subject to the provisions of this Declaration, each Owner has nonexclusive rights of
ingress, egress, and support through the Common Area. These rights shall be appurtenant
to and shall pass with title to every Condominium. However,these rights shall not interfere
00069669.v5 3
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with, and shall be subordinate to, any exclusive right to use an Exclusive Use Common
Area. .
(d) The Members' rights of use and enjoyment of the Common Area shall'be subject to the
restrictions set forth in the Governing Documents, including the following:
(i) The right of the Association to adopt and enforce Rules and Regulations for the use of
the Common Area.
(ii) The right of the Association to reasonably limit the number of guests and tenants using
the Common Area.
(iii) The right of the Association to assign or otherwise control the use of any unassigned
parking spaces within the Common Area.
(iv) The right of the Association to suspend the right of any Owner, and the persons
deriving rights from any Owner, to use and enjoy the Common Area for any period
during which the Owner is delinquent in the payment of any assessment.
(v) The right of the Association to cause the construction of additional improvements in
the Common Area, or to cause the alteration or removal of existing improvements on
the Common Area.
(vi) The right of the Association to grant, consent to, or join in the grant or conveyance of
easements, licenses, or rights-of-way in, on, or over the Common Area.
(vii) The right of each Owner to the exclusive use of any Exclusive Use Common Area
appurtenant to the Owner's Unit.
(viii) The rights of Declarant as described in this Declaration.
(ix) The right of the Association to reasonably restrict access to roofs, maintenance
facilities or areas, landscaped areas, and similar areas of the Project.
(x) The right of the Architectural Control Committee to approve any proposed alteration
or modification to the Common Area or any Unit.
(e) Declarant hereby reserves easements for common driveway purposes, for drainage and
encroachment purposes, and for ingress to and egress from the Common Area. These
easements may be used to complete improvements on the Common Area and to perform
necessary repair work. These easements shall remain in effect for three years from the date
of closing of the first sale of a Unit in the Project.
(f) The Association may grant to third parties easements in, on, and over the Common Area
for the purpose of constructing, installing, or maintaining necessary utilities and services,
and each Unit Owner, in accepting his or her deed to the Unit, expressly consents to these
00069669.v5 4
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easements. However, no such easement can be granted if it would interfere with any
exclusive easement, or with any Owner's use, occupancy, or enjoyment of his or her Unit
or any Exclusive Use Common Area appurtenant to the Unit.
(g) A Class A Owner who has sold his or her Condominium to a contract purchaser or who
has leased or rented the Condominium shall be entitled to delegate his or her rights to use
and enjoy the Common Area to any contract purchaser, tenant, or subtenant, subject to
reasonable regulation by the Board. If the Owner makes such a delegation of rights, the
Owner and the Owner's guests, employees, and invitees shall not be entitled to use and
enjoy the Common Area for so long as the delegation remains effective.
(h) Each Owner shall be liable to the Association for any damage to the Common Area or to
Association-owned property, to the extent that the damage is not covered by insurance, if
the damage is sustained because of the negligence, willful misconduct, or unauthorized or
improper installment or maintenance of any improvement by the Owner or the Owner's
guests, tenants, contract purchasers, or invitees. In the case of joint ownership of a
Condominium, the liability of the co-owners shall be joint and several, unless the co-
owners and the Association have agreed in writing to an alternative allocation of liability.
Section 2.03 Partition. There shall be no judicial partition of the Project or any part of it, nor
shall Declarant or any person acquiring an interest in the Project or any part of it seek any judicial
partition, except as follows:
(a) If two or more persons own any Condominium as tenants in common or as joint tenants
they may maintain a partition action as to their cotenancy.
(b) The Owner of a Condominium may maintain a partition action as to the entire Project, as
if all of the Owners in the Project were tenants in common in the Project in the same
proportion as their interests in the Common Area, and an appropriate court shall order
partition by sale of the entire Project, on a showing of any of the following:
(i) The Project has been in existence for more than 50 years and is obsolete and
uneconomical, and owners holding (in the aggregate) more than a 50 percent interest
in the common area oppose repair or restoration of the Project.
(ii) The Project has been damaged or destroyed and the other criteria set forth in Section
8.03 of this Declaration have been satisfied.
Section 2.04 Exclusive Use Common Area. The portions of the Common Area listed below are
or shall be for the exclusive use of certain Owners of Units and shal l be appurtenant to those Units.
An Exclusive Use Common Area may not be transferred independently of any other interest of the
Owner. Additional Exclusive Use Common Area may be designated in the future. by the
Association, provided that the designation is not inconsistent with the rights of any Owner.
00069669.x5 5
1.
(a) Each Owner shall have the exclusive right to use, for parking purposes only, any parking
space or spaces that have been or may be allocated to the Owner's Unit on the
Condominium Plan attached to this Declaration.
(b) All of the following fixtures and items designed to serve a single Unit, but located outside
the boundaries of the Unit, are Exclusive Use Common Area allocated exclusively to that
separate interest: shutters, awnings, window boxes, doorsteps, stoops, porches, balconies,
patios, exterior doors, door frames, and hardware incident thereto, screens, and windows.
These items are to be maintained in good condition and repair by the Association. Any
maintenance costs shall be the responsibility of the Owner and shall be added to the
Owner's regular monthly assessment.
(c) All internal and external telephone wiring designed to serve a single Unit, but located
outside the boundaries of the Unit, are Exclusive Use Common Area allocated exclusively
to that Unit. The Owner of the Unit shall be entitled to reasonable access to the Common
Area for the purpose of maintaining this wiring, subject to the consent of the Association
and to any other conditions reasonably imposed by the Association. The Association's
consent shall not be unreasonably withheld.
Section 2.05 Maintenance by Owners. Each Owner shall maintain the Owner's Unit, including
the equipment and fixtures in the Unit and the interior surfaces of the walls, ceilings, floors, and
doors, in a clean, sanitary, and attractive condition. This maintenance shall be at the Owner's
expense. However, the Owner shall not take any actions that would impair or otherwise alter the
structural integrity or mechanical systems or lessen the support of the Unit or any other portion of
the Project,without the prior written approval of the Architectural Control Committee,as provided
in Article Vi of this Declaration. The Association rather than the Owner shall be responsible for
maintaining any Exclusive Use Common Area appurtenant to the Owner's Unit.
Section 2.06 Presumption Regarding Boundaries of Units. In interpreting deeds, declarations,
and plans, the existing physical boundaries of a Unit, including any Unit reconstructed in
substantial accordance with the Condominium Plan and the original construction plans for the
Project, shall be conclusively presumed to be its boundaries, rather than the description expressed
in the deed, Condominium Plan, or Declaration. This presumption applies regardless of settling or
lateral movement of the building and regardless of minor variances between boundaries, as shown
on the Condominium Plan or described in the deed and Declaration, and the boundaries of the
building as constructed or reconstructed.
Section 2.07 Prohibition against Severance of Elements. Any conveyance,judicial sale, or other
voluntary or involuntary transfer of a Unit shall include the undivided interest in the Common
Area and any Exclusive Use Common Area appurtenant to the Unit. Any conveyance, judicial
sale, or other voluntary or involuntary transfer of the Owner's entire estate shall also include the
Owner's Membership interest in the Association, as provided in Section 3.02 of this Declaration.
Any transfer that attempts to sever those component interests shall be void.
00069669.v5 6
Article II1. OWNERS' ASSOCIATION
Section 3.01 Organization of the Association. The Association is or shall be incorporated under
the name of The Grove 4065 Professional Center Owners Association. as a nonprofit corporation
organized under the California Nonprofit Mutual Benefit Corporation Law. From the closing of
the escrow for the first sale of a Unit,the Association shall be charged with the duties and invested
with the powers prescribed by law and set forth in this Declaration, the Articles of Incorporation,
and the Bylaws.
Section 3.02 Membership. Every Owner, on becoming an Owner, shall automatically become a
Member of the Association. Ownership of a Unit is the sole qualification for membership. Each
Member shall have the rights, duties, privileges, and obligations set forth in the Governing
Documents. Membership shall automatically cease when the Owner no longer holds an ownership
interest in a Condominium. All memberships shall be appurtenant to the Condominium conveyed,
and cannot be transferred, assigned, conveyed,.hypothecated, pledged, or alienated except as part
of a transfer of the Owner's entire ownership interest, and then only to the transferee. Any transfer
of the Owner's title to his or her Condominium shall automatically transfer the appurtenant .
membership to the transferee.
Section 3.03 Classes of Membership. The Association shall have two classes of voting
membership, as follows:
(a) All Owners, other than the Declarant, shall be Class A members. Class A membership
entitles the holder to one vote for each Condominium owned. When a Condominium. is
owned by more than one person, only one vote may be cast for the Condominium, as
provided in Section 3.04(b) of this Declaration. .
(b) The Declarant shall be the sole Class B member. The Class B member shall be entitled to
three votes for each Unit owned. Class B membership shall cease and be converted to Class
A membership on the occurrence of whichever of the following is first in time:
(i) The total outstanding votes of the Class A members equals or exceeds the total
outstanding votes of the Class B member; or,
(ii) On a prescribed date to be established by the Board, which must not be later than the
second anniversary of the first conveyance of a Unit following the original issuance of
the final subdivision public report for the Project.
Section 3.04 All voting rights of the Owners shall be subject to the following restrictions,
limitations, and requirements:
(a) Except as provided in this Article, on each matter submitted to a vote of the Owners, each
Owner shall be entitled to cast one vote for each Condominium owned.
(b) Fractional votes shall not be allowed. When there is more than one record Owner of a
Condominium, all of the co-owners shall be Members, but only one of them shall be
00069669A 7
entitled "to cast the single vote attributable to the Condominium. Co-owners should
designate in writing one of their number to vote. If no such designation is made or if it is
revoked, the co-owners shall decide among themselves, by majority vote, how that
Condominium's vote is to be cast. Unless the Board receives a written objection in advance
from a co-owner, it shall be conclusively presumed that the voting co-owner is acting with
the consent of his, her, or its co-owners. No vote shall be cast for the Condominium on a
particular matter if a majority of the co-owners present in person or by proxy cannot agree.
on a vote.
(c) Except as provided in Section 3.07(c) of this Declaration, governing the enforcement of
certain bonded obligations, and the section of the Bylaws that governs the removal of
directors, as long as two classes. of voting memberships exist, any provision of this
Declaration,the Articles,or the Bylaws that requires the approval of a specified percentage
of the voting power of the Association (rather than simply requiring the vote or written
consent of a majority of a quorum) shall require the approval of the specified percentage
of the voting power of each class of membership. Except as provided in Section 3.07(c) of
this Declaration, and the section of the Bylaws that governs the removal of directors, when
the Class B Membership has terminated, any provision of this Declaration, the Articles, or
the Bylaws that requires the approval of a specified percentage of the voting power of the
Association shall require the vote or written consent of Owners representing the specified
percentage of both the total voting power of the Association and the voting power of the
Association residing in Owners other than Declarant.
(d) The Board shall fix, in advance, a record date or dates for the purpose of determining the
.Owners entitled to notice of, and to vote at, any meeting of Owners. The record date for
notice of a meeting shall not be more than 90 or less than 10 days before the date of the
meeting. The record date for voting shall not be more than 60 days before the date of the
meeting or before the date on which the first written ballot is mailed or solicited.The Board
may also fix, in advance, a record date for the purpose of determining the Owners entitled
to exercise any rights in connection with any other action. Any such date shall not be more
than 60 days prior to the action.
(e) Every Owner entitled to vote at any election of the Directors may cumulate the Owner's
votes and give one candidate a number of votes equal to the number of Directors to be
elected multiplied by the number of votes to which the Owner is entitled, or distribute the
Owner's votes on the same principle among as many candidates as the Owner thinks fit.
No Owner shall be entitled to cumulate votes for a candidate or candidates unless the
candidate's name or candidates' names have been placed in nomination prior to voting and
an Owner has given notice at the meeting prior to the voting of the Owner's intention to
cumulate votes. If any one Owner has given such notice, all Owners may cumulate their
votes for candidates in nomination.
Section 3.05 Membership Meetings. The Bylaws govern the meetings of the Members and are
hereby incorporated by reference.
00069669.v5 8 9
Section 3.06 General Powers and Authority. The Association shall have all the powers of a
nonprofit mutual benefit corporation organized under the California Nonprofit Mutual Benefit
Corporation Law, subject to any limitations set forth in this Declaration or in the Articles and
Bylaws of the Association. It may perform all acts that may be necessary for or incidental to the
performance of the obligations and duties imposed on it by this Declaration or the other Governing
Documents. Its powers shall include, but are not limited to, the following:
(a) The Association shall have the power to establish, fix, levy, collect, and enforce the
payment of assessments against the Owners in accordance with the procedures set out in
Article IV of this Declaration.
(b) The Association shall have the power to adopt reasonable Rules and Regulations governing
the use of the Common Area and its facilities,and of any other Association property.These
Rules and Regulations may include, but are not limited to: reasonable restrictions on use
by the Owners and their guests, employees, tenants, and invitees; rules of conduct; and the
setting of reasonable fees for the use of.recreational facilities. A copy of the current Rules
and Regulations, if any, shall be given to each Owner and shall be posted at conspicuous
places in the Common Area. If any provision of the Rules and Regulations conflicts with
any provision of this Declaration, the Articles, or the Bylaws, the Declaration, Articles, or
Bylaws shall control to the extent of the inconsistency.
(c) The Association shall have the right 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 Owners, in matters pertaining to the following:
(i) Enforcement of this Declaration, the Articles, Bylaws, and Rules and Regulations.
(ii) Damage to the Common Area.
(iii) Damage to the Units that the Association is obligated to maintain or repair.
(iv) Damage to the Units that arises out of, or is integrally related to, damage to the
Common Area or Units that the Association is obligated to maintain or repair.
The Association may enforce payment of assessments in accordance with the provisions of
Article IV of this Declaration.
(d) In addition to the general power of enforcement described above, the Association may
discipline its Owners for violation of any of the provisions of the Governing Documents
or Rules and Regulations by suspending the violator's voting rights and privileges for use
of the Common Area, or by imposing monetary penalties, subject to the following
limitations:
(i) Any suspension of an Owner's association privileges shall not exceed 60 days for each
violation.
00069669.v5 9
(ii) If the Association imposes a monetary penalty, the Board shall distribute to each
Owner, by personal delivery or first-class mail, a schedule of the monetary penalties
that may be assessed for those violations.
(iii) Except as provided in Article IV of this Declaration, relating to foreclosure for failure
to pay assessments, or as a result of the judgment of a court or a decision arising out
of arbitration, the Association shall in no way abridge the right of any Owner to the
full use and enjoyment of his or her Unit.
(e) The Association, acting through the Board, shall have the power to delegate its authority,
duties, and responsibilities to its officers, employees, committees, or agents, including a
professional management agent. The term of any agreement with a manager or the
Declarant for the furnishing of maintenance, repair, and related services shall not exceed
one year, renewable by agreement of the parties for successive one-year periods. Such an
agreement shall be terminable by either party: (1) for cause on 30 days' written notice; or
(2) without cause or the payment of a termination fee on 90 days' written notice.
(f) The Association's agents or employees shall have the right to enter any Unit when
necessary in connection with any maintenance, landscaping, or construction work for
which the Association is responsible. This entry shall be made only on notice to the Owner
(except in the case of an emergency) and with as little inconvenience to the Owner as is
practicable, and the Association shall repair any resulting damage at its own expense.
Section 3.07 In addition to the duties delegated to the Association or its agents and employees
elsewhere in the Governing Documents, the Association shall be responsible for the following:
(a) The Association, acting through the Board, shall operate, maintain, repair, and replace the
Common Area and its improvements, all landscaping, and the exterior surfaces of all
structures and Units in the Project, or contract for the performance of that work, subject to
the provisions of Article VIII of this Declaration relating to destruction of improvements,
Article IX of this Declaration pertaining to eminent domain, and Section 2.02(h) of this
Declaration relating to damage caused by Owners. These areas and improvements shall be
kept in a clean, sanitary, and attractive condition. Further, the Association shall keep the
Common Area free of infestation by wood-destroying pests or organisms. If infestation is
present, the Association shall have the right to cause the temporary, summary removal of
any occupant of the Project while the Association has the infestation treated.The temporary
relocation must be preceded by notice provided by the Association pursuant to Civil Code
Section 6720. The Association shall also be responsible for maintaining Exclusive Use
Common Area. The Association shall also have the exclusive right and duty to acquire and
maintain any furnishings and equipment for the. Common Area that it determines are
necessary and proper. As a general rule, maintenance costs shall be included in the regular
assessments. However, if additional work is required for a particular Unit, the expenses of
that additional work shall be charged solely to the Owner of the Unit in the month in which
the work is performed. Further, the Owner of a Unit shall pay the costs of any temporary
relocation of any occupant of the Unit occasioned by the presence of wood-destroying pests
or organisms. If the Owner does not pay'for the additional work within 30 calendar days
00069669.v5 10
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after receiving the bill, the Association shall institute appropriate collection actions and
shall recover the reasonable costs of collection, including attorneys' fees and interest from
the due date until paid at the rate of 10 percent per annum.
(b) The Association shall use the maintenance fund described in Section 4.03 of this
Declaration to, among other things, acquire and pay for the following:
(i) Water, sewer, garbage, electrical, telephone, gas, elevator, and other necessary utility
service for the Common Area and, to the extent not separately metered and charged,
for the Units;
(ii) The insurance policies described in Article VII of this Declaration;
(iii) The services of any personnel that the Board determines are necessary or proper for
the operation of the Common Area; and,
(iv) Legal and accounting services necessary or proper in the operation of the Common
Area or the enforcement of this Declaration.
(c) The Association shall use the maintenance fund described in Section 4.03 of this
Declaration to, among other things, enforce fire lane parking restrictions, maintain fire
access gates, and maintain and repair fire hydrants, fire sprinklers, and any other fire
protection systems and devices. The Association shall notify the Fire Department within
72 hours of any change to the responsible party contact information regarding property
maintenance and parking enforcement.
(d) The Association shall use the maintenance fund described in Section 4.03 of this
Declaration to, among other things, assure that firefighting or emergency equipment can
reach and operate efficiently in all areas and have access to any public utility easements
and required access routes.
(e) If the Association is obligee under a bond or other arrangement to secure the performance
of Declarant as to any Common Area improvements that were not completed.prior to the
issuance of the final public report on the Project,the following provisions shall govern the
initiation of action to enforce the bond:
(i) The Board of Directors of the Association shall consider and vote on the question of
action by the Association to enforce the obligations under the bond with respect to any
improvement for which a Notice of Completion has not been tiled within 60 days after
the completion date specified for the improvement in the Planned Construction
Statement appended to the bond. If the Association has given an extension in writing
for the completion of any Common Area improvement, the Board shall consider and
vote on the above question if a Notice of Completion has not been filed within 30 days
after the expiration of the extension.
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(ii) If the Board votes not to initiate action to enforce the obligations under the bond, or if
it fails to consider and vote on the matter as required, a special meeting of the Owners
of the Association shall be called for the purpose of overriding the Board's decision or
for taking action on the matter,on receipt of a petition calling for such a meeting signed
by Owners representing at least 5 percent of the total voting power of the Association.
The meeting shall be held not less than 35 days or more than 45 days after receipt of
the petition by the Board. At the special meeting,only the Owners other than Declarant
shall be allowed to vote on the matter. A vote by a majority of the voting power of the
Association residing in Owners other than Declarant to take action to enforce the
obligations under the bond shall be deemed to be the decision of the Association, and
the Board shall implement this decision by initiating and pursuing appropriate action
in the name of the Association.
(f) Within 120 days after the close of each fiscal year, the Association shall prepare and make
available to each Owner by individual delivery, a review of the Association's financial
statement consisting of the following:
(i) A balance sheet as of the end of the fiscal year;
(ii) An operating (income) statement for the fiscal year;
(iii) A statement of changes in financial position for the fiscal year; and,
(iv) For any fiscal year in which the gross income to the Association exceeds $75,000, a
copy of the review of the annual report prepared in accordance with generally accepted
accounting principles by a licensee of the California State Board of Accountancy. If
this report is not prepared by an independent accountant, it shall be accompanied by
the certificate of an authorized officer of the Association that the statement was
prepared without independent audit or review from the books and records of the
Association.
(g) The Association shall prepare a balance sheet, as of an accounting date that is the last day
of the month closest in time to six months from the date of closing of the first sale of a Unit
in the Project, and an operating statement for the period from the date of the first closing
to the above accounting date. The Association shall distribute this statement to the Owners
within 60 days after the accounting date. This operating statement shall include a schedule
of assessments received and receivable identified by the number of the Unit and the name
of the Owner assessed.
(h) The Association shall provide any Owner with the following documents within 10 days of
the mailing or delivery of a written request for the documents:
(i) A copy of the Governing Documents.
(ii) A copy of the most recent financial statement distributed pursuant to Section 3.07(d)
of this Declaration.
00069669.v5 12
13
(iii) A written statement from an authorized representative of the Association.specifying:
(1) the amount of any assessments levied on the Owner's Unit that.are unpaid on the
date of the statement; and (2) the amount of late charges, interest, and costs of
collection that,as of the date of the statement,are or may be made a lien on the Owner's
Unit pursuant to Section 4.09 of this Declaration. The Association may charge the
Owner a reasonable fee to cover its cost to prepare and reproduce those requested
items.
(i) The Association shall pay all real and personal property taxes and assessments levied
against it, its personal property, the Common Area, and Exclusive Use Common Areas.
Section 3.08 Board of Directors. The affairs of the Association shall be managed and its duties
and obligations performed by an elected Board of Directors, as provided in the Bylaws, which are
hereby incorporated by reference.
Section 3.09 Inspection of Books and Records.The Bylaws govern the duties of the Association
to maintain certain books and records, and the rights of Owners and Directors to obtain and inspect
those books and records, and are hereby incorporated by reference.
Article IV. ASSESSMENTS AND COLLECTION PROCEDURES
Section 4.01 Covenant to Pay. The Declarant covenants and agrees, for each Unit owned by it in
the Project, and each Owner by acceptance of the deed to the Owner's Unit is deemed to covenant
and agree to pay to the Association the regular and special assessments .levied pursuant to the
provisions of this Declaration. A regular or special assessment and any late charges, reasonable
costs of collection, and interest, as assessed in accordance with the provisions of this Article, shall
be a debt of the Owner of the Unit at the time the assessment or other sums are levied. The Owner
may not waive or otherwise escape liability for these assessments by nonuse of the Common Area
or abandonment of the Owner's Unit.
Section 4.02 Exemptions from Assessments. The obligation to pay assessments shall be subject
to the following exemptions:
Any Owner(including Declarant)of a Condominium in the Project shall be exempted from that
portion of any assessment that is for the purpose of defraying expenses and reserves directly
attributable to the existence and use of a common facility that is not complete at the time the
assessment commences. This exemption shall be in effect only until a notice of completion of
the common facility is recorded or the common facility is placed into use, whichever occurs
fi rst.
Section 4.03 Purpose of Assessments. The assessments levied by the Association shall be used
exclusively to promote the recreation, health, safety, and welfare of the Owners, for the operation,
replacement, improvement, and maintenance of the Property, and to discharge any other
obligations of the Association under this Declaration. All assessment payments shall be put into a
maintenance fund to be used for these purposes.
00069669.v� 13
Section 4.04 Assessment Period. The fiscal year for the Association shall be a calendar year,
unless the Board decides otherwise. The regular assessment period shall commence on January 1
and terminate on December'3I of each year; provided;however, that the first regular assessment
period for all Condominiums in the Project shall commence on the date of the first conveyance of
a Unit in the Project and shall terminate on December 31 of that year.
Section 4.05 Regular Assessments. Within 60 days prior to the beginning of each fiscal year of
the Association, the Board shall estimate the net charges to be paid during that year, including a
reasonable provision for contingencies and replacements,with adjustments made for any expected
income and surplus from the prior year's fund. The estimated cash requirement shall be assessed
to each Owner according to the ratio of the number of Units owned by that owner to the total
number of Units in the Project subject to assessment. Regular assessments for fractions of any
month shall be prorated. Each Owner is obligated to pay assessments to the Board in equal monthly
installments on or before the first day of each month unless the Board adopts an alternative method
for payment. Declarant shall pay its full prorated share of the regular assessments on any unsold
Condominiums subject to regular assessments.
Section 4.06 Special Assessments. If the Board determines that the amount to be collected from
regular assessments will be inadequate to defray the common expenses for the year due to the cost
of any construction, unexpected repairs or replacements of capital improvements on the Common
Area, or any other reason, it shall make a special assessment for the additional amount needed.
Special assessments shall be levied and collected in the same manner as regular assessments.
Section 4.07 Limitations on Assessments. The Board shall comply with the following
requirements governing the imposition and amounts of assessments:
(a) For any fiscal year, the Board may impose a regular assessment per Unit that is as much as
20 percent greater than the regular assessment for the preceding fiscal year, provided the
Board has either: (1) distributed the annual budget report described in Section 3.07(d) for
the current fiscal year; or(2) obtained the approval of a majority of a quorum of Owners,
pursuant to Civil Code Section 6524, at an Owner meeting or election.
(b) The Board may impose, for any fiscal year, a regular assessment per Unit that is more than
20 percent greater than the regular assessment for the preceding fiscal year, or may levy
special assessments that in the aggregate exceed 5 percent of the budgeted gross expenses
of the Association for that fiscal year, provided the increase or levy is approved by a
majority of a quorum of Owners,pursuant to Civil Code Section 6524,at an Owner meeting
or election.
(c) The Board may, without complying with the above requirements, make an assessment
increase that is necessary for an emergency situation. An emergency situation is ail
extraordinary expense that is:
(i) Required by a court order.
00069669.0 14
t(3
(ii) Necessary to repair or maintain the Project or any part of it for which the Association
is responsible when a threat to personal safety in the Project is discovered.
(iii) Necessary to repair or maintain the Project or'any part of it for which the Association
is responsible that could not have been reasonably foreseen by the Board in preparing
and distributing the pro forma operating budget pursuant to Section 3.07(d).
Before the Board may impose or collect an assessment in the type of emergency situation .
described in (iii), above,. it shall pass a resolution containing written findings as to the
necessity of the extraordinary expense and why the expense was not or could not have been
reasonably foreseen in the budgeting process, and shall distribute the resolution to the
Owners with the notice of assessment.
(d) The Board shall provide individual notice pursuant to Civil Code Section 6514 to the
Owners of any increase in the regular or special assessments. The Board shall provide this
notice not less than 30 or more than 60 days prior to the due date of the increased
assessment.
Section 4.08 Late Charges. Late charges may be levied by the Association against an Owner for
the delinquent payment of regular and special assessments. An assessment is delinquent 15 days
after its due date. If an assessment is delinquent the Association may recover all of the following
from the Owner:
(a) Reasonable costs incurred in collecting the delinquent assessment, including reasonable
attorneys' fees.
(b) A late charge not exceeding 10 percent of the delinquent assessment or $10, whichever is
greater.
(c) Interest on the above sums, at an annual percentage rate of 10 percent, commencing 30
days after the assessment becomes due.
No late charge may be imposed more than once for the delinquency of the same payment.
However, the imposition of a'late charge on any delinquent payment shall not eliminate or
supersede charges imposed on prior delinquent payments..
Section 4.09 Enforcement of Assessments and Late Charges. At least 30 days before the
Association can place a lien on a Unit for a past due debt for a regular or special assessment, the
Association must notify the Owner by certified mail of the following:
(a) A general description of the Association's collection and lien enforcement procedures.
(b) The method of calculation of the amount due.
(c) A statement that the Owner has the right to inspect the Association records.
00069669.v5 15
f/
(d) A statement prescribed by Civil Code Section 6812(a) informing the Owner that the
Owner's Unit may be subject to foreclosure and sale without court action.
(e) 'An itemized statement of fhe charges owed by the Owner, including items on the statement
that indicate the amount of any delinquent assessments, the fees and reasonable costs of
collection, reasonable attorney's fees, and any late charges and interest.
(f) A statement that the Owner will not be liable to pay the charges, interest, and costs of
collection, if it is determined the assessment was paid on time.
(g)' The Owner's right to request a meeting with the Board if the Owner disputes the debt.
An Owner may dispute the debt by submitting to the Board a written explanation within 15 days
of the mailing of the Association's notice. The Board must respond to an Owner's timely
explanation within 15 days of the mailing of the Owner's explanation.
An Owner also may submit a written request to meet with the Board to discuss a payment plan for
the debt. The request must be mailed within 15 days of the mailing of the Board's notice. The
Board must then meet with the Owner in executive session within 45 days of the mailing of the
Owner's request. If there is no regularly scheduled Board meeting within that time period, the
Board may designate a committee of one or more members to meet with the Owner.
Any partial payments made toward the debt will first be applied to the assessments owed, and only
after the principal owed is paid in full will the payments be applied to the fees and costs of
collection, attorneys' fees, late charges, or interest. When an Owner makes a payment, the Owner
may request a receipt and the Association shall provide it. The receipt shall indicate the date of
payment and the person who received it. The Association shall provide a mailing address for
overnight payment of assessments.
A debt for a delinquent regular or special assessment and any late charges, reasonable fees and
costs of collection, reasonable attorneys' fees, and interest shall become a lien on the Unit from
and after the time a notice of delinquent assessment is recorded and mailed in accordance with the
requirements of Civil Code Section 6814.
Any such lien may be enforced in any manner permitted by law, including judicial foreclosure or
nonjudicial foreclosure. Any nonjudicial foreclosure shall be conducted by the trustee named in
the notice of delinquent assessment or by a trustee substituted pursuant to Civil Code Section
2934a, in accordance with Civil Code Sections 2924, 2924b, and 2924c. .
If the sums specified in the notice of delinquent.assessment are paid before the completion of any
judicial or nonjudicial foreclosure,the Association shall record a notice of satisfaction and release
of the lien. On receipt of a written request by the Owner, the Association shall also record a notice
of rescission of any declaration of default and demand for sale.
00069669.v5 16
1
Article V. USE RESTRICTIONS AND COVENANTS
Section 5.01 General Restrictions on Use. In exercising the right to occupy or use a Unit or the
Common'Area and its improvements, the Owner and the Owner's guests, employees, tenants, and
invitees shall not do any of the following:
(a) Attempt to further subdivide a Unit without obtaining the prior approval of the Association.
(b) Permit anything to obstruct the Common Area or store anything in the Common Area
without the prior consent of the Board, except as otherwise provided in the Governing
Documents.
(c) Perform any act or keep anything on or in any Unit or Exclusive Use Common Area or in
the Common Area that will increase the rate of insurance on the Common Area without
the Board's prior written consent. Further, no Owner shall permit anything to be done or
kept in his or her Unit, in any Exclusive Use Common Area appurtenant to the Unit, or in
the Common Area that would result in the cancellation of insurance on any Unit or
Exclusive Use Common Area or on any part of the Common Area or that would violate
any law.
(d) Store gasoline, kerosene, cleaning solvents, or other flammable liquids in the Common
Area or in any Unit; provided, however, that reasonable amounts of these liquids may be
placed in metal containers and stored in the storage spaces.
(e) Display any sign to the public view on or from any Unit or the Common Area without the
prior written consent of the Board, except a sign advertising the property for sale, lease, or
exchange, or advertising directions to the property, as provided in Civil Code Section 712.
(f) Engage in any noxious or offensive activity in any part of the Project.
(g) Alter or modify the exterior of any improvements located in a Unit without first obtaining
the written consent of the Architectural Control Committee.
(h) Install a solar energy system in a Unit owned by another without first obtaining the written
consent of the Architectural Control Committee.
(i) Alter, construct,-or remove anything on or from the Common Area, except on the written
consent of the Board.
(j) Park any automobile or other motor vehicle in the Common Area or in any Exclusive Use
Common Area except in a space designated for the Owner by the Board or the Governing
Documents.
(k) Install any video or television antenna, including a satellite dish, with a diameter or
diagonal measurement greater than 36 inches. Association reserves the right to impose
00069669.x5 17
reasonable restrictions on the installation of any video or television antenna, including a
satellite dish with a diameter or diagonal measurement of 36 inches or less.
Section 5.02 Damage Liability. Each'Owner shall be liable to the Association for all damage to
the-Common Area or other Association property that is sustained by reason of the negligence or
willful misconduct of that Owner or his or her guests, employees, tenants, and invitees, to the
extent that the damage is not covered by the casualty insurance obtained and maintained by the
Association pursuant to Section 7.01 of this Declaration.
Section 5.03 Exemption. Declarant shall be exempt from the restrictions of Section 5.01 to the
extent necessary to complete any construction work, sales activities, or additions to or affecting
the Project. This exemption includes, but is not limited to, maintaining Units as models, placing
advertising signs on the Property,and generally using Project Units and the Common Area to carry
on construction activity.
Section 5.04 Equitable Servitudes. The covenants and restrictions set forth in this Declaration
shall be enforceable equitable servitudes and shall inure to the benefit of and bind all Owners.
.These servitudes may be enforced by any Owner or by the Association or by both.
Article VI. ARCHITECTURAL AND DESIGN CONTROL
Section 6.01 Architectural and Design Approval.No building, addition,wall,fence,or alteration
shall be commenced, constructed, maintained, or permitted to remain on any Unit, or on the
Common Area, until complete plans and specifications of the proposed work have been submitted
to and approved by the Architectural Control Committee. The Committee shall review the plans
and specifications to determine whether they are compatible with the standards of design,
construction, and quality of the Project and, if they are not, shall require that changes be made
before approval.
Section 6.02 Architectural Control Committee. The Architectural Control Committee shall
consist of three members, formed as follows:
(a) The Declarant shall appoint all of the original members and all.replacements until the first
anniversary of the issuance of the original final public report for the Project. Further,
Declarant may reserve the power to appoint a majority of the Committee until 90 percent
of all Units have been sold or until the fifth anniversary date of the original issuance of the
final public report for the Project, whichever occurs first. After one year from the date of
the issuance of the finalpublic report for the Project, the Board shall have the right to
appoint one member to the Committee, until 90 percent of the Units have been sold or until
the fifth anniversary date of the original issuance of the final public report for the Project,
whichever occurs first. Thereafter, the Board shall have the right to appoint all of the
members of the Committee.
(b) The term of the initial appointees shall be one year. Thereafter, members shall serve two-
year terms unless it becomes necessary to remove members appointed by Declarant in order
to comply with Section 6.02(a), in which case the terms.of all members shall end at that
00069669.x5 18
time, and the Board shall appoint a new Committee. Notwithstanding the above, all
members of the Committee shall serve at the will of the party that appointed them,and may
be removed by that party at any time with or without cause.
(c) The Committee shall meet as often as it deems necessary to properly carry out the
obligations imposed on it, unless otherwise directed by the Board.
Section 6.03 The Board of Directors. All decisions of the Architectural Control Committee are
subject to review by the Board of Directors and may be appealed to the Board. The Committee
shall notify the Board of all violations of this Article and of any noncompliance with its rulings or
with the plans and specifications submitted to and approved by it. Thereafter, the Board shall take
any actions it deems necessary, in accordance with the provisions of this Declaration.
Article VII. INSURANCE
Section 7.01 Fire and Casualty Insurance. The Association shall obtain and maintain a policy or
policies of fire and casualty insurance with an extended coverage endorsement for the full insurable
replacement value of the improvements in the Project.The amount of coverage shall be determined
by the Board. This insurance shall be maintained for the benefit of the Association, the Owners,
and their Mortgagees, as their interests may appear as named insured,subject,however, to any loss
payment requirements set forth in this Declaration.
Section 7.02 General Liability and Individual Liability Insurance. The Association shall obtain
and maintain one or more policies of insurance that must include coverage for: (1) general liability
of the Association; and (2) individual liability of Officers and Directors of the Association for
negligent acts or omissions in that capacity.
The limits and coverage shall be reviewed at least annually by the Board and increased in its
discretion.
Section 7.03 Other Association Insurance.The Association shall purchase and maintain workers'
compensation insurance to the extent necessary to comply with any applicable laws. The
Association also shall purchase and maintain fidelity bond coverage which names the Association
as an obligee, for any person or entity handling funds of the Association, whether or not such
persons or entities are compensated for their services.This coverage shall be in an amount that is
at least equal to the estimated maximum of funds, including reserve funds, in the custody of the
Association at any given time during the term of each bond. However, the aggregate amount of
these bonds must not be less than 150 percent of each year's estimated annual operating expenses
and reserves.The Association also may purchase and maintain a blanket policy of flood insurance,
and demolition insurance in.an amount that is sufficient to cover any demolition that occurs
following the total or partial destruction of the Project and a decision not to rebuild.
Section 7.04 Trustee for Policies. The Association;acting through its Board, is hereby appointed
and shall be deemed trustee of the interests of all named insureds under all insurance policies
purchased and maintained by the Association. All insurance proceeds under any of those policies
shall be paid to the Board as trustee.The Board shall use the proceeds for the repair or replacement
00069669.v5 19
of the property for which the insurance was carried or for the purposes described in Article VIII
of this Declaration. The Board also is authorized to negotiate loss settlements with the appropriate
insurance carriers, to compromise and settle any claim or enforce any claim by any lawful action,
and to execute logs claim forms and release forms in connection with such settlements.
Section 7.05 Individual Insurance.No Owner shall obtain or maintain fire and casualty insurance
for the improvements in the Owner's Unit. If any Owner does so, he or she shall be liable to the
Association for any resulting reduction in the insurance proceeds payable under the policy or
policies of fire and casualty insurance maintained by the Association pursuant to Section 7.01.
Notwithstanding the above, an Owner may separately insure his or her personal property, and may
obtain and maintain personal liability and property damage liability insurance for his or her Unit,
provided that the insurance contains a waiver of subrogation rights by the carrier as to the other
Owners, the Association, Declarant, and the institutional First Mortgagee of the Owner's Unit.
Section 7.06 Insurance Premiums. Insurance premiums for any insurance coverage obtained by
the Association shall be included in the regular assessments. That portion of the regular
assessments necessary for the required insurance premiums shall be used solely for the payment
of the premiums when due.
Article VIII. DAMAGE OR DESTRUCTION
Section 8.01 Duty to Restore and Replace. If any of the improvements in the Project are
destroyed or damaged, the Association shall restore and replace the improvements, using the
proceeds of insurance maintained pursuant to Article VII of this Declaration, subject to the
provisions of this Article.
Section 8.02 Proceeds Justifying Automatic Restoration and Repair. If the proceeds of any
insurance maintained pursuant to Article VII of this Declaration for reconstruction or repair of the
Property are equal to at least 85 percent of the estimated cost of restoration and repair, the Board
shall use the insurance proceeds for that purpose, shall levy a special assessment to provide the
necessary additional funds, and shall have the improvements promptly rebuilt, unless the Owners
by the vote or written consent of not less than 75 percent of the total voting power of each class of
Owners object to the restoration or repair work within 60 days of the damage or destruction.
Section 8.03 Approval by Owners of Special Assessment for Certain Restorations and Repairs.
If the proceeds of any insurance maintained pursuant to Article. VII of this Declaration for
reconstruction or repair of the Property are less than 85 percent of the estimated cost of restoration
and repair, any restoration and repair work must be authorized by the vote or written consent of
Owners representing at least 75 percent of the total voting power of each class of Owners and
beneficiaries of at least 75 percent of the First Mortgages on.Units in the Project.This authorization
must be given within 60 days of the damage or destruction, and must authorize the Board to levy
a special assessment to provide the necessary funds over and above the amount of any insurance
proceeds available for the work.
Section 8.04 Ordering Reconstruction or Repair. If reconstruction or repair work is to take place
pursuant to this Article, the Board shall take the following steps:
00069669,x5 20
(a) Prepare the necessary documents, including an executed and acknowledged certificate
stating that damage has occurred, describing it, identifying the improvement suffering the
damage, the' name of.any insurer against whom claim is made', and the name of any
insurance trustee, stating(if applicable)that the consent described in Section 8.03 has been
obtained, and reciting that the certificate is recorded pursuant to this paragraph. That
declaration shall be recorded with the Recorder of Fresno County within 90 days from the
date of the damage or destruction.
(b) Obtain firm bids(including the obligation to obtain a performance bond) from two or more
responsible contractors to rebuild the Project in accordance with its original plans and
specifications and, as soon as possible thereafter, call a special meeting of the voting
Owners to consider the bids. If the Board fails to do so within 60 days after the casualty
occurs, any Owner may obtain the bids and call and conduct the special meeting in the
manner required by this paragraph.At the meeting, Owners representing at least 67 percent
of the total voting power may elect to reject all of the bids and thus not to rebuild,or Owners
representing at least 51 percent of the total voting power may elect to reject all bids
requiring amounts exceeding the available insurance proceeds by more than $500. Failure
to reject all bids shall authorize the Board to accept the un-rejected bid it considers most
favorable. Failure to call the special meeting or to repair the casualty damage within 12
months from the date the damage occurred shall be deemed for all purposes to be a decision
not to rebuild.
(c) If a bid is accepted, the Board shall let the contract to the successful bidder and distribute
the insurance proceeds to the contractor as required by the contract.
(d) Levy a special assessment to make up any deficiency between the total insurance proceeds
and the contract price for the repair or rebuilding, with the assessment and all insurance
proceeds,whether or not subject to liens of mortgagees,to be used solely for the rebuilding.
This assessment shall be apportioned equally to each Unit for any damage or destruction
to the Common Area. For any damage or destruction to improvements on one or more
Units, every Owner shall pay a proportionate share based on the relative square footage of
the office area. If any Owner fails to pay the special assessment within 15 days after it is
levied, the Board shall enforce the assessment in the manner described in Section 4.09 of
this Declaration.
Section 8.05 Election Not to Rebuild. On an election not to rebuild, the Board, as soon as
reasonably possible and as agent for the Owners, shall execute and record a certificate stating that
the Association shall not rebuild. The Board shall also sell the entire Project on terms acceptable
to the Board and free from the effect of this Declaration,which shall terminate on the sale. The net
proceeds shall then be distributed to the Owners and their respective Mortgagees proportionately
according to the respective fair market values of the Units at the time of the destruction as
determined by an independent appraisal. That appraisal shall be performed by an independent
appraiser who shall be selected by the Association and who shall be a member of, and apply the
standards of, a nationally recognized appraiser organization.
00069669,x5 21
All insurance proceeds for damage or destruction to Units shall be distributed to the Owners of the
damaged Units according to the relative fair market value of the Units. This value shall be as of
the date immediately preceding the damage or destruction,and shall be determined by an appraisal
by an independent appraiser who shall be selected in the manner described above. Any proceeds
from damage or destruction to the Common Area shall be distributed to the Owners equally.
Section 8.06 Minor Restoration and Repair Work. The Association shall order restoration or
repair work without complying with the other provisions of this Article whenever the estimated
cost of the work does not exceed$15,000 for the Common Area and$3,000 for one or more Units.
If insurance proceeds are unavailable or insufficient, the Association shall levy a special
assessment for the cost of the work. The Assessment shall be levied in the manner described in
Section 4.05 of this Declaration.
Article IX. EMINENT DOMAIN
Section 9.01 Definition of Taking. As used in this Article, "taking" means condemnation by any
governmental agency having the power of eminent domain or by sale under threat of the exercise
of that power.
Section 9.02 Sale to Condemning Authority. If a governmental agency proposes to condemn all
or a portion of the Project, the Association may sell all or any portion of the Project to the
condemning authority if all Owners and institutional Mortgagees consent in writing to the sale.
Any such sale shall be made by the Association in the capacity of attorney-in-fact for the Owners,
acting under an irrevocable power of attorney which each Owner grants to the Association by
accepting a Condominium. The sales price shall be any amount deemed reasonable by the Board.
Section 9.03 Total Sale or Taking. A total sale or taking occurs when: (1) there is a permanent
taking or a sale to a condemning authority by the Association pursuant to Section 9.02 of an interest
in all or part of the Common Area or of all or part of one or more Units, which substantially and
adversely affects the ownership,operation,and use of the Project in accordance with the provisions
of this.Declaration; and (2) 120 days have passed since the effective date of the taking and the
Owners whose Units remain habitable after the taking("Remaining Units")have not by affirmative
vote of a majority of their entire voting interest approved the continuation of the Project and the
repair, restoration, and replacement to the extent feasible of the Common Area and the Remaining
Units. Within 60 days after the effective date of any sale or taking which in the opinion of the
Board would constitute a total sale or taking, the Board shall call a special meeting to determine
whether or not the Owners of the remaining Units will continue the Project as provided in this
Section. If there is a total sale or taking, the Board shall distribute the proceeds of the total sale or
taking and the proceeds of any sale pursuant to a partition action, after deducting all incidental fees
and expenses related to the taking or partition, to all Owners and their Mortgagees in accordance
with the court judgment or the agreement between the condemning authority and the Association,
if any such judgment or agreement exists. In all other cases, the proceeds shall be distributed
among the Owners and their respective Mortgagees according to the relative values of the
Condominiums affected by the condemnation as determined by independent appraisal. That
appraisal shall be performed by an independent appraiser who shall be selected by the Association
00069669A 22
23
and who shall be a member of, and apply the standards of, a nationally recognized appraiser
organization.
Section 9.04 Partial Sale or Taking. A partial sale or taking occurs if there is a'sale or taking that
is not a total sale or taking as defined in Section 9.03. The proceeds from any sale or taking shall
be disbursed in the following order of priority,which shall be incorporated into any courtjudgment
of condemnation or agreement between a condemning authority and the Association:
(a) To the payment of related fees and expenses.
(b) To Owners of Condominiums that have been sold or taken and their respective Mortgagees,
as their interests may appear, in an amount up to the fair market value of the Condominium
as that value is determined by the court in the condemnation proceeding or, in the absence
of such a determination, by an appraiser selected in the manner described in Section 9.03.
Such a payment shall immediately terminate the recipient's status as an Owner, and the
Board, acting as the attorney-in-fact of the remaining Owners, shall amend this Declaration
and any other documents, as appropriate, to delete the sold or taken Condominiums from
the Project and to allocate the former Owner's undivided interest in the Common Area to
the remaining Owners, on the basis of their relative ownership of the.Common Area. Each
Owner whose interest is terminated pursuant to this Section shall, at the request of the
Board and expense of the Association, execute and acknowledge any deed or other
instrument that the Board deems necessary to evidence the termination.
(c) To the payment of severance damages to First Mortgagees of record of remaining Units
affected by the partial sale or taking, to the extent that the Mortgagees can prove that their
security has been impaired by the taking.
(d) To the repair, restoration, and replacement of the Common Area and any portions of the
Remaining Units that the Owners are not obligated to restore, to the extent feasible.
Article X. RIGHTS OF MORTGAGEES
Section 10.01 Warranty. Declarant hereby warrants that Mortgagees of Units in the Project shall
be entitled to the rights and guaranties set forth in this Article.No amendment of this Article shall
affect the rights of the holder of any First Mortgage recorded prior to the recordation of the
amendment who does not join in the execution of the amendment.
Section 10.02 Subordination. Notwithstanding any other provision of this Declaration, liens
created under Section 4.09 of this Declaration on any Unit shall be subject and subordinate to, and
shall not affect the rights of the holder of,the indebtedness secured by any recorded First Mortgage
on such an interest made in good faith and for value, provided that any transfer of a Unit as the
result of a foreclosure or exercise of a power of sale shall not relieve the new Owner from liability
for any assessments that become due after the transfer. Such a transfer shall extinguish the lien of
assessments that were due and payable before the transfer of the Unit.
00069669.v5 23
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Section 10.03 Inapplicability of Right of First Refusal. Should any of the Association's Governing
Documents provide for a "right of first refusal," this right shall not impair the rights of a First
Mortgagee to:
(a) Foreclose or take title to a Unit pursuant to the remedies provided in the Mortgage;
(b) Accept a deed(or assignment) in lieu of foreclosure in the event of default by a Mortgagor;
or,
(c) Interfere with a subsequent sale or lease of a Unit so acquired by the Mortgagee.
Section 10.04 Notice of Default. A First Mortgagee, on, request, will be entitled to written
notification from the Association of any default in the performance by the Mortgagor of any
obligation under the Association's Governing Documents that is not cured within 60 days.
Section 10.05 Unpaid Assessments. Any First Mortgagee who obtains title to a Unit pursuant to
the remedies provided in the Mortgage or foreclosure of the Mortgage shall not be liable for the
Unit's unpaid assessments that accrue before the acquisition of title to the Unit by the Mortgagee.
Section 10.06 Mortgagee Approval of Material Amendments. Notwithstanding Article X1 of this
Declaration, any amendments governing any of the following shall require the prior written
approval of at least 51 percent of the First Mortgagees and at least 67 percent of the total voting
power of the Owners:
(a) Voting;
(b) Rights to use the Common Area;
(c) Reserves and responsibility for maintenance,repair,and replacement of the Common Area;
(d) Boundaries of any Unit;
(e) Owners' interests in the Common Area;
(f) Conversion of Units into Common Area or Common Area into Units;
(g) Leasing of Units;
(h) Establishment of self-management by the Association, when professional management has
been previously required by any First Mortgagee or any insurer or governmental guarantor
of a First Mortgage;
(i) Annexation, addition, or withdrawal of real property to or from the Project;
(j) Assessments, assessment liens, or the subordination of these liens;
00069669.x5 24
(k) Casualty and liability insurance or fidelity bonds; or,
(1) Any provisions expressly benefiting First Mortgagees or insurers or governmental
guarantors of first mortgages.
Notwithstanding the above, any First Mortgagee who receives a written request from the Board to
approve a proposed amendment or amendments requiring consent under this Section who does not
deliver a negative response to the Board within 30 days of the receipt of the request shall be deemed
to have approved the proposed amendment or amendments.
Section 10.07 Mortgagee Approval of Other Actions. Unless at least 67 percent of the First
Mortgagees (based on one vote for each First Mortgage owned), or 67 percent of the Owners other
than Declarant, have given their prior written approval, the Association shall not be entitled to:
(a) By act or omission, seek to abandon or terminate the Project;
(b) Change the pro rata interest or obligations of any individual Unit for either of the following
purposes:
(i) Levying assessments or charges, or allocating distributions of hazard insurance
proceeds or condemnation awards, or
(ii) Determining the pro rata share of ownership of each Unit in the Common Area and
the improvements thereon;
(c) Partition or subdivide any Unit;
(d) By act or omission, seek to abandon, partition, subdivide, encumber, sell, or transfer the
Common Area (the granting of easements for public utilities or for other public purposes
consistent with the intended use of the Common Area shall not be deemed a transfer within
the meaning of this clause); or,
(e) Use hazard insurance proceeds for losses to any Project property (whether to Units or to
the Common Area) for other than the repair, replacement, or reconstruction of that
property, except as provided by statute in case of substantial loss to the Units and/or
Common Area of the Project.
Section 10.08 Liens. All taxes, assessments, and charges that may become liens prior to the First
Mortgage under local law,shall relate only to the individual Units and not to the Project as a whole.
Section 10.09 Priority. No provision of the Governing Documents of the Association gives any
Owner, or-any other party, priority over any rights of the First Mortgagee of the Unit pursuant to
its Mortgage in the case of a distribution to the Owner of insurance proceeds or condemnation
awards for losses to, or a taking of, all or a portion of a Unit or Units and/or the Common Area.
00069669.x5 25
Section 10.10 Reserve Fund. Association assessments shall be large enough to provide for an
adequate reserve fund for maintenance, repairs, and replacement of those common elements that
must be replaced on a periodic basis. The reserve fund shall be funded by the regular assessments
rather than by special assessments.
Section 10.1 1 Management. Any agreement for professional management of the Project shall not.
exceed three years and shall provide that either party may terminate the agreement,with or without
cause and without the imposition of a termination fee, on 90 days' written notice. The approval of
holders of at least 75 percent of First Mortgages shall be obtained before the Association terminates
a professional management agreement.
Section 10.12 Right to Inspect Books and Records. Institutional First Mortgagees, on written
request,shall have the right to:(1) examine the books and records of the Association during normal
business hours; and (2) require the submission of any financial data furnished to the Owners by
the Association.
Section 10.13 Payments by Mortgagees. First Mortgagees may,jointly or severally, pay, taxes or
other charges that are in default and that may or have become a charge against the Common Area,
and may pay any overdue premiums on hazard insurance policies, or secure new hazard insurance
coverage on the lapse of a policy, for the Common Area, and First Mortgagees making these
payments shall be entitled to immediate reimbursement from the Association.
Section 10.14 Right to Furnish Mortgage Information. Each Owner hereby authorizes the First
Mortgagee of a First Mortgage on the Owner's Condominium to furnish information to the Board
concerning the status of the First Mortgage and the loan that it secures.
Article XI. AMENDMENTS
Section 11.01 Amendment or Revocation before Close of First Sale. At any time before the close
of the first sale of a Condominiumto a purchaser other than Declarant, Declarant and any
Mortgagee of record may, by executing an appropriate instrument, amend or revoke this
Declaration. The executed instrument shall be acknowledged and recorded in the Office of the
Recorder of Fresno County.
Section 11.02 Amendments by Owners after Close of First Sale. At any time after the close of the
first sale of a Condominium to a purchaser other than Declarant,this Declaration may be amended
by the vote or written consent of Owners representing not less than 51 percent of the voting power
of each class of Owners of the Association. If only one class of membership exists at the time an
amendment is proposed, then it must be approved by not less than 51 percent of the voting power
of the Association, which shall include at least a majority of the votes residing in Owners other
than Declarant. Notwithstanding any contrary provision in this Section, the percentage of the
voting power necessary to amend a specific clause or provision of this Declaration shall not be less
than the percentage of affirmative votes prescribed for action to be taken under that clause or
provision.
00069669.v5 26
2- 7
An amendment becomes effective after: (1) the approval of the required percentage of Owners has
been given; (2) that fact has been certified in a writing executed and acknowledged by an officer
designated by the Association for that purpose or, if no such designation is made, by the President
of the Association; and (3) that writing has been recorded in Fresno County.
Section 11.03 Amendments Pursuant to Court Order. If this Declaration requires a proposed
amendment to be approved by the affirmative vote of a specified percentage(exceeding 50 percent)
of the votes in the Association or of Owners having a specified percentage (exceeding 50 percent)
of the votes in more than one class (a "supermajority"), and more than 50 percent but less than the
required supermajority of the votes approve the amendment, the Association or any Owner may .
petition the Superior Court of Fresno County for an order reducing the percentage of the
affirmative votes necessary for the amendment or approving the amendment. If such an order is
issued, the amendment shall be acknowledged by any person designated by the Association for
that purpose or, if no such designation is made, by the President of the Association, and that person
shall have the amendment and the court order recorded in Fresno County. Om recordation, the
amended provision or provisions of this Declaration shall have the same force and effect as if the
amendment were adopted in compliance with every requirement imposed by this Declaration and
the other Governing Documents. Within a reasonable time after recordation, the Association shall
mail a copy of the amendment and a statement regarding the amendment to each Owner.
Section 11.04 Deletion of Construction or Marketing Provisions. Notwithstanding any other
provision of this Declaration, the Board may, under the circumstances described in this Section,
adopt an amendment deleting from this Declaration any provision that was unequivocally designed
and intended,or that by its nature could only have been designed or intended,to facilitate Declarant
in completing the construction or marketing of the Project. To be subject to this amendment
procedure, the provision must provide for access by Declarant over or across the Common Area
for the purposes of: (1) completion of construction of the Project; and (2) the erection,
construction, or maintenance of structures or other.facilities designed to facilitate the completion
of construction or marketing of Units. Such an amendment may be adopted only after Declarant
has completed construction of the Project, has terminated construction activities, and has
terminated its marketing activities for the sale of the Units. At least 30 days prior to taking action
to adopt such an amendment,the Board must mail to all Owners, by first-class mail,the following:
(1).a copy of the proposed amendment; and(2) a notice of the time, date, and place of the meeting
at which the Board will consider adoption of the amendment. All deliberations of the Board on the
proposed amendment must be conducted at that meeting. The meeting must be open to all Owners,
and the Owners must be given an opportunity at the meeting to comment on the proposed
amendment. The Board may not amend the declaration without the approval of a majority of a
quorum of the Owners, pursuant to Civil Code Section 6524. For these purposes, "quorum" means
more than 50 percent of the Owners who own no more than two Units in the Project.
Article XII. GENERAL PROVISIONS
Section 12.01 Term. The provisions of this Declaration shall continue in effect for a term of 30
years from the date of execution. Thereafter, it shall be automatically extended for successive
periods of 10 years, until the-membership of the Association decides to terminate it.
00069669.0 27
Section 12.02 Nonwaiver of Remedies. Each remedy provided for in this Declaration is separate,
distinct, and nonexclusive. Failure to exercise a particular remedy shall not be construed as a
waiver of the remedy.
Section 12.03 Attorneys' Fees and Costs. In any action to enforce this Declaration, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs.
Section 12.04 Severability. The provisions of this Declaration shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforceability of any one provision shall not
affect the validity or enforceability of any other provision.
Section 12.05 Binding. This Declaration, any amendment to it, and any valid action or directive
made pursuant to the Declaration,shall be binding on the Declarant and the Owners and their heirs,
grantees, tenants, successors, and assigns.
Section 12.06 Interpretation. The provisions of this Declaration shall be liberally construed and
interpreted to effectuate its purpose of creating a uniform plan for the development and operation
of an office project. Failure to enforce any provision of this Declaration shall not constitute a
waiver of the right to enforce that provision or any other provision of this Declaration.
Section 12.07 Limitation of Liability. The liability of any Owner for performance of any of the
provisions of this Declaration shall terminate on sale, transfer, assignment, or other divestment of
the Owner's entire interest in his or her Unit with respect to obligations arising from and after the
date of the divestment.
Section 12.08 Fair Housing. Neither Declarant nor any Owner shall, either directly or indirectly,
forbid the conveyance, encumbrance, renting, leasing, or occupancy of the Owner's Unit to any
person on the basis of race, color, sex, religion, ancestry, nationalorigin, disability, medical
condition, marital status, or sexual orientation.
Section 12.09 Number and Headings. As used in this Declaration, the singular shall include the
plural, unless the context requires the contrary. The headings are not a part of this Declaration, and
shall not affect the interpretation of any provision.
Article XIII. RIGHTS OF GOVERNMENT ENTITIES
Section 13.01 Right of Access. The City is hereby granted the right of immediate access to all
portions of the Common Area.for the purpose of preserving the public health, safety, and welfare.
.Section 13.02 On-Site Utility Maintenance. The Association shall have the duty to maintain and
repair all on-site sewer,water,and storm drainage facilities, unless the City or flood control district
have determined that a particular facility should be public to provide necessary system completion
or otherwise protect public health, safety, and welfare.
00069669.v5 28
ZS
Section 13.03 Utility Charges. The Association shall have the duty to pay all utility and waste
collection charges which are not separately metered and billed, including,. but not limited to,
charges for sewer, water, gas, solid waste, sanitation, and electric service.
Section 13.04 Private Pavement Repairs. If public utilities, including but not limited to sewer and
water, be located underneath private streets, or if a street is public while said utilities are private,
the City shall not be responsible for private pavement repairs beyond the minimum amount this is
directly related to the future utility main repair work.
Section 13.05 No Alteration to Party Walls. No Owner shall alter, modify, reconstruct, or do any
other thing to any party wall or to any plumbing, electrical, or mechanical fixture located along
such wall which will impair the integrity of the wall as a fire separation without the review and
approval of the building official of the City.
Section 13.06 Landscaping and Maintenance. Landscaping shall be provided and maintained by
the Association in the Common Area adjacent to public streets and highways. The Association
shall provide and maintain the landscaping in such areas in a manner compatible with the
requirements of the Development Code of the City, and shall not decrease the amount of
assessments charged against Members of the Association if such decrease will adversely affect the
ability of the Association to perform this maintenance.
Section 13.07 Street Sweeping. The Association shall be responsible to provide street
sweeping/cleaning within the Common Area. The Association shall be responsible for the costs.
Section 13.08 Amendment to this Article. Any amendment by the Association to the provisions
of this Article XIII or any other provision specifying any right of the city shall require the prior
written consent of the City.
Section 13.09 Right of Public Entry to Common Area. Officers, agents, and employees of the
City, the County, the State, and the United States Government, and any department, bureau, or
agency thereof, shall have the right of immediate access to the Common Area at all times for the
purpose of preserving the public health, safety, and welfare, except in those instances where the
Common Area is accessible only through a Unit.
[The remainder of this page is intentionally left blank.]
00069669.0 29
3 �
SPT 7ffi
Executed on A,ugtrsr , 2018, at Fresno, California.
. DECLARANT
G.J.N. Development, LLC,
a California limited liability company
By:
Name. Gurbir ingh Sapraj
Its: Manager
[NOTARY ACKNOWLEDGMENT]
"PLEASE SEE ATTACHED
NOTARIAL CERTIFICATE"
00069669.v5 30 I
' � I
ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Fresno
On Sept 7, 2018 before me, Jagdeep Singh, Notary Public, personally appeared Gurbir
Singh Sapraj, who proved to me on the basis of satisfactory evidence to be the person( whose
name(s)is/i` a subscribed to the within instrument and acknowledged to me that he/she4h&y
executed the same in his/her/thQk authorized capacity(ies), and that by his/h4r/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
JAGDEEP SINGH
Notary Public-California
+' }'
w Fresno County >
44
Commission#2113010
My Comm.Expires May 22,2019
Signature (Seal)