HomeMy WebLinkAboutPM 2015-04 - Agreement/Covenant - CC&Rs - 7/12/2016 RECORDING REQUESTED BY:
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FRESNO County Recorder
WHEN RECORDED, RETURN TO: Paul Dictos, C.P.A.
DOC— 2016-0089510
S & T PROPERTIES Check Number 1248
c/oThonias W. Isaac, Esquire Tuesday, JUL 12, 2016 10:05:59
8050 N. Palm Avenue, Suite 300 Ttl Pd $220,00 Rcpt, # 000456$923
Fresno, CA 93711 RGR�'R411-68
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
PROFESSIONAL OFFICE CONDOMINIUMS
(SPRUCE PROFESSIONAL CENTER)
NOTICE
CERTAIN DISPUTES ARISING UNDER THIS DECLARATION,INCLUDING DISPUTES CONCERNING
THE DESIGN OR CONSTRUCTION OF THE PROJECT, SHALL BE SUBMITTED TO JUDICIAL
REFERENCE OR ARBITRATION,WHICH ARE FORMS OF ALTERNATIVE DISPUTE RESOLUTION,IN
ACCORDANCE WITH SECTION 12.4 OF THIS DECLARATION.
INDEX TO
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
PROFESSIONAL OFFICE CONDOMINIUMS
(SPRUCE PROFESSIONAL CENTER)
DESCRIPTION Page
RECITALS ..................................................................................................................................... I
ARTICLE 1. DEFINITIONS AND INTERPRETATION.............................................................. 2
1.1 Definitions.................. ...... ................ . ................................................................. 2
1.2 Interpretation....................................................................................................................... 10
ARTICLE 2. MAINTENANCE COVENANTS AND USE RESTRICTIONS........................... 12
2.1 Repair and Maintenance............ ..................................................... .... 12
2.2 Permitted............................................................................................................................ 13
2.3 Prohibited Uses................................................................................................................... 14
2.4 Leases...............................•---..................................................................................... ..... 14
2.S Nuisances. ........................................................................................................................... 14
2.6 Trash and Waste Materials.................................................................................................. 15
2.7 Owner Improvements on Association Property. ................................................................. 15
2.9 Loading Facilities........................................................................................... .................... 15
2.9 Parking Restrictions............................................................................................................ I5
2.
10 Signs............... .--.--••--............................................................................................--- ... i
211 Ownership of Two Contiguous Units. .............................................................................. 17
2.12 Mechanics Liens. .............................................................................................................. 18
2.13 Commonly Metered Utilities. ........................................................................................... 18
2.14 Solar Energy System.................................................... .................................................... 18
2.15 Work Performed within Utility Chase or Dividing Wall.................................................. 19
2.16 Work by Unit Owner Affecting Exterior Perimeter Windows of
CondominiumBuilding. .................................................................................................. 19
2.17 Improvements Constructed and/or Installed by a Unit Owner
within the Common Area...................................................................... ..... 19
ARTICLE 3. INDEMNIFICATION; NON-LIABILITY..........................................................-... 20
3.1 Identification....................................................................................................................... 20
3.2 Non-Liability....... ............................ •----........_.................................................................... 20
ARTICLE 4. THE ASSOCIATION.............................................................................................. 22
4.l General Duties and Powers................................................................................................. 22
4.2 Specific Duties and Powers. ............................................................................................... 22
4.3 Standard of Care. ................................................................................................................ 23
4.4 Membership. .............................................................................................................. 24
ARTICLE 5. ARCHITECTURAL CONTROL............................................................................ 26
5.1 Architectural Control Requirements.............................................. .......I.............. 26
5.2 Approving Authority............................................................................... ........................... 27
ARTICLE 6. PROPERTY EASEMENTS AND RIGHTS,.......................................................... 29
6.1 Easements. ......................................................................................... ..... 29
6.2 Delegation of Use......... ...................................................................................................... 30
6.3 Right of Entry...................................................................................................................... 30 .
ARTICLE 7. ASSESSMENTS........................................................ .. 31
7.1 Personal Obligation to Pay Assessments............................................................................ 31
7.2 Association Accounts..................................................... .. 31
7.3 Purpose of Assessments...................................................................................................... 31
7.4 Waiver of Use. ...................................................................................................... 31
7.5 Assessments........................................................................................................................ 31
7.6 Effect of Nonpayment of Assessments. ........................................................... 34
ARTICLE 8. INSURANCE. ......................................................................................................... 38
8.1 Duty to Obtain Insurance; Types. ....................................................................................... 38
8.2 General Provisions.............................................................................................................. 39
8.3 Right and Duty of Owners to Insure. ............................ .. 40
8.4 Owner Indemnity. ............................................................................................................... 40
8.5 Approved Insurance Carrier................................................................................................ 40
ARTICLE 9. DESTRUCTION OF IMPROVEMENTS............................................................... 41
9.1 Restoration of the Association Property. ............................................................................ 41
9.2 Sale of Project and Right to Partition. ................................................................................ 42
9.3 Interior Damage. ................................................................................................................. 42
ARTICLE 10. EMINENT DOMAIN............................................................................................ 43
10.1 Rights of Mortgagees........................................................................................................ 43
10.2 Reconstruction on Condemnation..................................................................................... 43
ARTICLE 1 1. RIGHTS OF MORTGAGEES......................................................... ................. 44
11.1 General Protections........................................................................................................... 44
11.2 Mortgagee Cure Rights.........:........................................................................................... 44
1 1.3 Unpaid Assessments. ........................................................................................................ 44
ARTICLE 12. ENFORCEMENT AND DISPUTE RESOLUTION. ........................................... 45
12.1 Enforcement of Governing Documents. ........................................................................... 45
12.2 Delinquent Assessments. .................................................................................................. 46
12.3 Association Ownership of Units....................................................................................... 46
-i i-
12.4 Disputes With Declarant Parties. ...................................................................................... 46
ARTICLE 13, DURATION AND AMENDMENT. .................................................................... 52
13.1 Duration. ........................................................................................................................... 52
13.2 Termination and Amendment. .......................................................................................... 52
ARTICLE 14. GENERAL PROVISIONS.................................................................................... 54
14.1 No Public Right or Dedication.......................................................................................... 54
14.2 Notices. ............................................................................................................................. 54
14.3 Notice of Emergency Situation......................................................................................... 54
14.4 Estoppel Certificate........................................................................................................... 55
14.5 Attorney Fees; Court Costs............................................................................................... 55
14.6 Security and Privacy Disclaimer..................................................... ...... 55
............................
14.7 Real Estate Taxes.............................................................................................................. 55
ARTICLE 15. RIGHTS OF CITY................................................................................................ 57
15.1 Right of Access................................................................................................................. 57
15.2 On-Site Utility Maintenance........................................... 57
15.3 Utility Charges.................................................................................................................. 57
15.4 No Alteration to Parry Walls............................................................................................. 57
15.5 Landscaping and Maintenance.............................:....................:....................................... 57
15.5 Amendment..................................................... ..... .... 57
EXHIBIT A - Specific Maintenance Obligations
EXHIBIT B - Percentage Share/Square Footage of Units/Assessment Units
EXHIBIT C - Owner Insurance Provisions
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DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
PROFESSIONAL OFFICE CONDOMINIUMS
(SPRUCE PROFESSIONAL CENTER)
This Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for
Professional Office Condominiums (Spruce Professional Center) is made by S & T Properties, a
general partnership.The capitalized terms used in the Recitals below are defined in Article l of this
Declaration.
RECITALS
A. Declarant is the owner of real property in the City of Fresno, California, described as
fol laws:
Parcel A of Parcel Map No. 2015-04 Wai ver Certificate for Condominium Purposes
recorded on :j i-y 1'L ,2016 as Document No. c.Qllo ZOM the Office of
the Fresno County Recorder, (the"Map").
B.Declarant intends to create a"condominium project,"as defined in California Civil Code
§6542 and to impose mutually beneficial restrictions under a general plan for subdividing,
maintaining, improving, and selling the Condominiums in the Project for the benefit of all the
Condominiums under the Commercial and Industrial Common Interest Development Act (CC
§§6500-6876) (the "Commercial CID Act"). The general plan of development anticipates
governance by an incorporated association established Finder California law to which will be
assigned the powers of(1) maintaining and administering the Common Area,(2)administering and
enforcing the Governing Documents,and(3)collecting and disbursing the;Assessments and charges
hereinafter created. The Members of the Association will be the Owners of the Units in the Project.
The Association shall exercise the powers required under Civil Code §6752.
C. The Project is to be held, conveyed, encumbered, leased,used and improved subject to
covenants,conditions, restrictions and easements in this Declaration,al I of which are in furtherance
of pian for subdividing,maintaining,improving and selling the Condominiums in the Project. All
provisions of this Declaration are imposed as equitable servitudes on the Project. All covenants,
conditions,restrictions and easements in this Declaration shall run with and burden the Project,and
be binding on and for the benefit of all of the Project and all Persons acquiring any interest in the
Project.
A
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. Unless otherwise expressly provided, the following words and phrases
when used in this Declaration have the following meanings.
1.1.I Annual Assessment. Annual Assessment means a charge against the Owners and their
Condominiums representing their share of the Common Expenses_ The Annual Assessment is a
regular assessment as described in California Civil Code §6800.
1.1.2 Articles.Articles means the Articles of Spruce Professional Center Owners Association
of the Association currently in effect.
L 1.3 Assessment. Assessment means any Regular Assessment, Special Assessment and
Individual Assessment.
L 1.4 Association. Association means Spruce Professional Center Owners Association, a
California non-profit corporation formed pursuant to the California Nonprofit Mutual Benefit
Corporation Law or successor statutes, and its successors-in-interest. The Association is an
°`association" as defined in California Civil Code §6528.
1.1.5 Board or Board of Directors. Board or Board of Directors means the Association's
Board of Directors.
1.1.6 Budge . Budget means a written, itemized estimate of the Association's income and
Common Expenses prepared pursuant to the Bylaws.
1.1.7 B laws. Bylaws mean the Bylaws of the Association as currently in cftecr.
l.1.8 City,City means the City of Fresno,California,and its various departments,divisions,
employees, and representatives.
1.1.9 Close of Escrow. Close of Escrow means the date on which a deed is recorded
conveying a Condominium from Declarant to an Owner other than Declarant.
1.1.10 Common Area. The Common Area means all the real property described in the
Condominium Plan (EXCEPT FOR the Units shown in the Condominium Plan), and the
Improvements and easements located thereon or maintained by the Association, including without
limitation:
(a) Condominium Building. The Condominium Building (but excluding the Units), the
components of the Condominium Building as listed in Section 1.1.14 herein below, and related
Improvements such as exterior lighting fixtures and utility cabinets on building exteriors and
facilities for the delivery of utilities to the Project (except for outlets that are located in the Unit).
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(b)Other Improvements.Parkingareas,service and equipment areas,driveways,open spaces,
planted and landscaped areas, irrigation systems or facilities, signs, sidewalks, curbs, gutters,
drainage facilities,walls,fences,bollards,trash enclosures,lighting andother illumination facilities
and structures, and all other improvements which may be placed upon or located in the Common
Area,but excluding the airspace and portions of the Condominium Building that are included within
a Unit. in addition, the Common Area shall specifically exclude heating, ventilation, and air
conditioning systems installed for the exclusive use of the Units,whether located within the Units,
on the roof of the Condominium Building,or otherwise outside the Units. The Owner of each Unit
described on the Condominium Plan shall have an undivided one-third(3) interest in the Common
Area.
(c) Easements Granted to or Reserved for the Association. The easements described in the
Governing Documents, or in the Map or in other recorded instruments and granted to the
Association;provided,however,the Association shall only have the responsibility for maintenance
of such easements where such maintenance responsibility is given to the Association.
1.1.11 Combined Units. Combined Units is defined in Section 2.11 of this Declaration
1.1.12 Common Expenses. Common Expenses means those expenses for which the
Association is responsible under this Declaration. Common Expenses include the actual and
estimated costs of, and reserves for, maintaining, managing and operating the Common Area
(including amounts required by this Declaration), including:
(a) the cost of all utilities (including sewer and water) and mechanical and electrical
equipment serving the Common Area, and any other utility services provided by the Association
under a master meter;
(b}the costs and fees attributable to managing and administering the Association,including
compensating the Manager,accountants,attorneys and employees,all insurance covering the Project
and the Directors, officers and agents of the Association, and bonding the members of the Board;
(c) the cost of services such as trash removal from the Common Area, landscape
maintenance,sweeping and cleaning of the parking areas,and other services benefi tti ng the Common
Arca or the Owners, if the Association elects or is required to provide such services;
(d) The cost of fire alarm monitoring and system testing and maintenance.
(e)The Exclusive Use Area carport structure and carport spaces(as described in Section 2.9.3
herein below).
(f]unpaid Speciai Assessments, Special Assessments, Individual Assessments and Capital
Improvement Assessments;
(g) taxes paid by the Association;
(h)amounts paid by the Association for discharge of any lien or encumbrance levied against
the Project; and
(i)all other expenses incurred by the Association for the Project, For the common benefit of
the Owners.
1.1.13 Condominium. Condominium means an estate in real property as defined in
California Civil Code§6542(b),consisting ofan undivided ownership interest in the Common Area,
together with a separate ownership interest in a Unit and all easements appurtenant thereto.
1.I.14 Condominium Building. Condominium Building means the commercial office
building constructed on the Parcel in the project containing multiple Units as shown on the
Condominium Plan.The Condominium Building encloses Units shown in the Condominium Plan,
but the Condominium Building is not part of the Units.For purposes of interpreting this Declaration
and the Condominium Plan, the Condominium Building is intended to include the following
components:
(a) the shell (including the roof, foundation and exterior surfaces and the finishes thereon)
of the Condominium Building;;
(b) all structural support elements existing in, on, under and throughout the Condominium
Building that carry roof, ceiling and upper floor loads to the Foundation, including all separate or
common footings, girders,columns,joists, braces, foundations, temporary and permanent tieback
systems, load-bearing walls and other standard support elements, and every Dividing Wall (as
defined in Section 1.1.23 herein below), wall,column, floor, ceiling, footing, Foundation or other
vertical or horizontal Improvement in the Condominium Building, but not including any wall
between rooms in a Unit which is not necessary for the structural support of the Condominium
Building (For purposes hereof, any wall or other structure which carries roof,ceiling or upper floor
loads is "necessary for structural support");
(c) all exterior walls of the Condominium Building and their surface treatments (including
siding, stone, stucco, plaster,paint and stain);
(d) fixtures that are outside the boundaries of the Units, including exterior lighting fixtures
and utility cabinets on the Condominium Building exterior, facilities for the delivery of utilities to
the Project(except for outlets that are located in the Unit);
(e) exterior fire extinguishers, fire sprinkler systems serving the Condominium Building
including fire sprinkler pipes and fire sprinkler heads that protrude into the airspace of the Unit;and
(f)all or any portion of any stairway,vault,air shaft,mechanical shaft,duct,pipe, line,main,
conduit, lighting, flue and any other equipment, fixtures, machinery, system or apparatus which
benefits the entire Condominium Building, except outlets thereof located within the Units.
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1.1.15 Condominium PIan. Condominium Plan means the recorded plan, as currently in
effect, for the Project consisting of(a)a description or survey map of the Project,which shall refer
to or show monumentation on the ground,(b)a three dimensional description ofthe Project,one or
more dimensions of which may extend for an indefinite distance upwards or downwards in sufficient
detail to identify the Common Area and each Unit,and(c)a certificate consenting to the Recordation
thereof signed and acknowledged by the record owner of fee title to the Project, and by either the
trustee or the Mortgagee of each Recorded Mortgage encumbering the Project or portion thereof.
1.1.16 Coun . County means Fresno County, California, and its various departments,
divisions,employees and representatives.
1.l.17 Declarant. Declarant means S&T Properties,a general partnership,its successors and
any Person to which it shall have assigned any of its rights as Declarant by an express written
assignment. As used in this Section, "successor" means a Person who acquires Declarant or
substantially all of Declarant's assets by sale, merger, reverse merger, consolidation, sale of stock
or assets, operation of law or otherwise. Declarant shall determine in its sole discretion the time,
place and manner in which it discharges its obligations and exercises the rights reserved to it under
this Declaration.
1.1.18 Declarant Rights Termination Date. Declarant Rights Termination Date means the
date on which Declarant, or any of its successors or assigns who have obtained declarant rights in
accordance with the terms of this Declaration,no longer owns any Condominium in the Project.
1.l.l9 Declaration. Declaration means this instrument as currently in effect.
1.1.20 Defect Claire. Defect Claim means a construction defect claim against Declarant or
any Declarant Party (as defined in Section 12.4 herein below) for defects in the design or
construction of the Project.
1.1.21 Defect Claims Period. Defect Claims Period means the period beginning at the first
Close of Escrow and ending on the expiration of all statutes of limitation or repose applicable to
Defect Claims under applicable California law (including any tolling periods).
1.1.22 Design Guidelines. Design Guidelines mean the rules or guidelines setting forth
architectural and design standards adopted pursuant to this Declaration.
1.1.23 Dividing Wall. Dividing Wall means the partition wall that exists centered upon the
Interior Boundary Linc (as defined in Section 1.1.32 herein below) separating the adjoining Units
as identified on the Condominium Plan as "Dividing Wall",the space within which is part of the
Common Area.
L 1.-24 Exclusive Use Area. Exclusive Use Area means those areas of the Common Area
over which exclusive easements, licenses or other rights are reserved for the benefit of specified
Owners and their Permittees,pursuant to Section 2.9.3 of this Declaration.
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1.1.25 Fiscal Year. Fiscal Year means the fiscal accounting and reporting period of the
Association.
1.1.26 Governing Documents. Governing Documents means this Declaration,the Articles,
Bylaws, Design Guidelines, Rules and Regulations, and Supplemental Declarations.
1.1.27 Governmental Requirements.Governmental Requirements meansall applicable laws,
rules, regulations, orders, ordinances, codes, subdivision requirements, zoning restrictions, map
conditions and all other legal requirements of the City,County, and any other governmental agency
with jurisdiction over the Project, including Hazardous Materials Laws.
1.1.28 Hazardous Materials.Hazardous Materials means any hazardous or toxic substances,
materials or wastes which are or become regulated by any local governmental authority, the State
of California or the United States,and includes, without limitation,any material orsubstance which
is included in the definitions of(i) "hazardous waste," "extremely hazardous waste," "restricted
hazardous waste,""hazardous substance,""extremely hazardous substance,""hazardous material,"
"acutely hazardous waste," "hazardous chemical substance or mixture,' "imminently hazardous
chemical substance or mixture," "toxic substances," "toxic air contaminant," "hazardous air
pollutant," "toxic pollutant,""medical waste"or"solid waste'under the Health and Safety Code,
Chapter l l of Title 22 of the California Code of Regulations, the Federal Water Pollution Control
Act, the Federal Resource Conservation and Recovery Act, the Federal Hazardous Materials
Transportation Act, the Federal Comprehensive Environmental Response Compensation and
Liability Act,the Federal Water Pollution Control Act, the Federal Clean Air Act,the Clean Water
Act, the Superfund Amendments and Reauthorizations Act of 1956 under the California
Administrative Code,or under any other federal,state and local laws,statutes, regulations,orders,
rules or common law decision, and(ii)pesticides,petroleum, asbestos,polychlorinated biphenyls,
solvents, flammable explosives,urea fomialdehyde,or radioactive materials and waste. Hazardous
Materials do not include products typically used at projects similar to the Project if they exist merely
in small amounts that do not require remediation and do not pose a hazard to the health or safety of
persons on or about the Project nor do they include radioactive waste materials in amounts normally
generated by medical, dental or orthodontic offices or laboratories in projects similar to the Project
(e.g,., a dental or orthodontic practice or diagnostic laboratory), so long as such waste materials are
stored, handled and disposed of in accordance with applicable Hazardous Materials Laws.
1.1.29 Hazardous Materials Laws. Hazardous Materials Laws means the federal and state
laws cited in Section 1.1.28 herein above,as well as any other federal,state or local laws,ordinances
or regulations governing the use,storage or disposal of Hazardous Materials.
1.1.34 Improvement. Improvement means (a) the Condominium Building and any
appurtenance thereto and all components thereof, (b)any directory or monument signs,directional
signs, poles, trash enclosures, exterior lights, exterior light fixtures located on the exterior of the
Condominium Building or any other exterior area of the Project, (c) any type of railings, ramps,
walls, antennae,awnings, stairways or decks, (d) any public or private utility lines, or other pipes,
sewers, ducts, chutes, conduits, wires or other utility installations located anywhere within the
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Project, (e)
1.1.42 Owner. Owner means the Person or Persons, including Declarant,holding fee simple
interest to a Condominium. The term Owner includes sellers under executory contracts of sale but
excludes Mortgagees.
1.1.43 Permittee. Permittee means any Person from time to time entitled to the use and
occupancy of any Unit or any portion thereof under any lease, deed or other arrangement with an
Owner, and the officers, directors, employees, agents, contractors, customers, visitors, invitees,
licensees and concessionaires of such Person.
1.1.44 Parcel. Parcel means Parcel A of Parcel Map No. 2415-04 Waiver Certificate for
Condominium purposes recorded on J-o L y 1 Z , 2016 as Document No.ZOM -rtdgts o 9 ,
in the official records of the County.
1.1.45 Person. Person means a natural individual or any legal entity recognized under
California law. When the word"person" is not capitalized, it refers only to natural persons.
1.1.46 Project. Project means all of the real property-(including all Improvements thereon)
covered by this Declaration and subject to the jurisdiction of the Association following Recordation
of the Condominium Plan and the first Close of Escrow. The Project is a"commercial or industrial
common interest development"and a"condominium projecC as defined in California Civil Code
§§6531 and 6542(a).
1.1.47 Record or File. Record or File means, concerning any document, the entry of such
document in Official Records.
1.I.48 Reserve Funds. Reserve Funds means that portion of the Assessments allocated for
the future repair and replacement of,, or additions to, the major components of Association-
maintained finprovernents and amounts necessary to cover the deductibles under all insurance
policies maintained by the Association.
1.1.49 Rules and Regulations. Rules and Regulations or Rules means the current rules and
regulations for the Project.
1.1.50 Suns. Signs means any advertising, placards, signs, names, billboards, placards,
insignia,numerals,addresses,and descriptive words of any type affixed, inscribed,constructed,or
maintained within the Project or an any portion of the Condominium Building.
1.1.51 Supplemental Declaration.Supplemental Declaration means an instrument executed,
acknowledged and Recorded by Declarant which imposes conditions,covenants,or restrictions or
reserves easements for all or a portion of the Project in addition to the conditions, covenants,
restrictions and easements established by this Declaration.A Supplemental Declaration may modify
this Declaration only as it applies to the property encumbered by the Supplemental Declaration.
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1.1.52 Unit. Unit means a separate interest in space as defined in California Civil Code
§4125. Each Unit is a separate freehold estate, as separately shown, and designated on the
Condominium Plan as Unit A. Unit B and Unit C, respectively.
(a) Each Unit includes the glass entry doors and door frames and the glass portions of all
windows, doors and other glass surfaces that are constructed on or within exterior walls of the
Condominium Building adjacent to such Unit, and those portions of gas, water and waste pipes,
ducts,chutes,conduits, wires and other utility installations that protrude into the Unit (but not fire
sprinkler heads or pipes that protrude into the Unit).
(b) The boundaries of each Unit are approximately shown in the Condominium plan. In
interpreting deeds, this Declaration and the Condominium Plan,the actual boundaries of each Unit
shall be deemed to extend horizontally to the interior unfinished Unit-facing surfaces of the studs
of the exterior walls of the Condominium Building to the center of the Dividing Walls of the Units,
and vertically from the unfinished floor of the Unit to a plane above the top of the unfinished floor
of the Unit shown on the Condominium Plan as the "upper limit" of the Unit, as constructed or
reconstructed in substantial accordance with the original pians for the Unit. Bearing walls within
the interior of a Unit, if any, are Common Area, not part of the Unit, except for the unfinished
surfaces thereof. Areas within the Utility Chase are part of the Common Area and not part of the
Units. The foregoing interpretation shall apply notwithstanding any description expressed in the
deed, the Condominium Plan or the Declaration, regardless of settling or lateral movements of
Improvements, and regardless of variances between Unit boundaries shown in the Condonninium
Plan or deed and those of the Improvement.
(c)The utility installations located within each Unit that the Owner has the exclusive use of,
including without limitation lighting fixtures and cabinetry.
(d)TheUtility Facilities(as defined in Section 1.1.54 herein below)located within the Utility
Chase (as defined in Section 1.1.53 herein below) that serve all of the Units,,are part of the
Common Area and are owned in undivided one-third (1/3rd) interests by the Owners. , The
Association shall be responsible for maintaining,repairing and replacing Utility Facilities that serve
all of the Units and/or the Common Area.
(c) Notwithstanding Section 1.1.52(d)herein above, any Utility Facilities located with the
Utility Chase that exclusively serve only certain Units are not part of the Common Area, and are
owned by the Owner(s) of the Unit or Units exclusively sets.,ed by such Util ity Facilities. Further,
the Owncr(s)ofthe Unit or Units exclusively served by the Utility Facilities described in this Section
1.1.52(d)shall be responsible,at their sole cost and expense,for maintaining,repairing and replacing
such Utility Facilities.
1.1.53 Utility Chase. "Utility Chase" means the portion of the Condominium Building
which is designated to accommodate the Utility Facilities(as defined in Section 1.1.54 herein below)
extending between the upper limit of the Units and the roof of the Condominium Building. The
Utility Chase shall include:the areas between the lower surface of the unfinished ceiling(if there is
no "drop"or"false"ceiling) and the lower surface of the roof of the Condominium Building,or in
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the case of a"drop"or"false"ceiling,between the upper surface of the"drop"or"false"ceiling and
the lower surface of the unfinished ceiling The Utility Chase is part of the Common Area.
1.1,54 Utility Facilities. "Utility Facilities" means those cables, lines, wires,pipes,ducts,
flues and other utilities and related facilities located within the Utility Chase.
1.2 INTERPRETATION.
1.2,l General Rules. This Declaration shall be liberally construed to effectuate its purpose
of creating a uniform plan for creating, operating and maintaining the Project. As used in this
Declaration,the singular includes the plural and the plural the singular.The masculine,feminine and
neuter each includes the other, unless the context dictates otherwise. Any reference in this
Declaration to time of performance of obligations or to elapsed time means consecutive calendar
days, months or years, as applicable, unless otherwise expressly provided.
1.2.2 Articles, Sections, and Exhibits. The Article and Section headings are inserted for
convenience only and may not be considered in resolving questions of interpretation or construction.
Unless otherwise indicated,any references in this Declaration to articles,sections or exhibits are to
Articles, Sections and Exhibits of this Declaration. The Exhibits attached to this Declaration are
incorporated in this Declaration by this reference. The locations and dimensions of any
Improvements shown on the Exhibits are approximate only and the as-built location and dimension
of any such Improvements shall control.
1.2.3 Priorities and Inconsistencies. If there are conflicts or inconsistencies between this
Declaration and the Articles,Bylaws, Rules and Regulations, or the Condominium Plan, then the
provisions of this Declaration shall prevail; however,the conflicting documents shall be construed
to be consistent with the Declaration to the extent possible.
1.2.4 Severability. The provisions of this Declaration are independent and severable. If for
any reason, any provision of this Declaration becomes invalid, partially invalid, unenforceable,
illegal, null and void, or against public policy,or ifforany reason,a court of competent jurisdiction
determines that any provision of this Declaration is invalid,partially invalid, unenforceable, illegal,
null and void, or against public policy, the validity and enforceability of the remaining provisions
of this Declaration shall remain in effect to the fullest extent permitted by law.
1.2.5 Statutqu References. All references made in this Declaration to statutes are to those
statutes as currently in effect or to subsequently enacted replacement statutes.
1.2,6 Supplemental Declarations. Declarant may, in connection with all or a portion of the
Project, Record one (1) or more Supplemental Declarations, which shall designate the use
classifications in the real property described therein, and which may supplement this Declaration
with such additional covenants, conditions, restrictions and land uses as Declarant may deem
appropriate for the affected real property. A Supplemental Declaration may impose additional,
di fferentormore restrictive conditions,covenants,restrictions,land uses and limitations as Declarant
may deem advisable, taking into account the particular requirements of the real property affected
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thereby. if there is any conflict between any Supplemental Declaration and the Declaration, the
Supplemental Declaration shall control as to the real property affected by such Supplemental
Declaration.
1.2.7 No Representations or Warranties. Nothing in this Declaration constitutes a
representation or warranty,express or implied, in connection with the Project,its physical condition,
zoning,compliance with laws, fitness for intended use, or in connection with the subdivision, sale,
operation,maintenance,cost of maintenance,taxes or regulation of the Project.Declarant makes no
representation or warranty as to the future enforceability of any provision of this Declaration or any
other Governing Document.
END OF ARTICLE t
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ARTICLE 2
MAINTENANCE COVENANT'S AND USE RESTRICTIONS
The Project shall be held, used and enjoyed subject to the following restrictions and subject
to the exemptions and rights of Declarant set forth in the Governing Documents.
2.1 REPAIR AND MAINTENANCE.
2.1.1 Maintenance Obligations and Standards.The specific items listed in Exhibit A to this
Declaration shall be maintained by the party indicated. If an item is not listed in Exhibit A, then it
shall be maintained in accordance with the general rules established in this Declaration and the
current adopted Budget.
(a)By Association.The Association shall maintain the Common Area and the Exclusive Use
Area that are designated for Association maintenance in Exhibit A or in the Governing Documents.
The Association shall maintain everything it is obligated to maintain in a clean, sanitary and
attractive condition reasonably consistent with the level and frequency of maintenance reflected in
the current adopted Budget; provided, such maintenance shall conform with all maintenance
standards required by this Declaration,by the City and as otherwise adopted by the Association prior
to the Declarant Rights Termination Date (the "Maintenance Requircmcnts'�. In addition, until
expiration of the Defect Claims Period, the Board shall provide prior written notice to Declarant of
any proposed material decrease in the level of, or frequency for,maintenance of the Common Area
from that set forth in the Maintenance Requirements,and Declarant shall have the right,exercisable
by written notice to the Board within thirty (30) days after notification from the Board of the
proposed modification of maintenance level or frequency, to veto such decrease. Each Owner shall
immediately notify the Association of any dangerous, defective or other condition in the Project
which could cause injury to persons or property.
(b) By Owners.Each Owner shall maintain the Unit and those items that are designated for
Owner maintenance in Exhibit A or in the Governing Documents, in a clean,sanitary and attractive
condition and as directed in the Governing Documents and in conformance with the Maintenance
Requirements. Fach Owner shall immediately notify the Association of any dangerous,defective or
other condition in such Owner's Unit or Exclusive Use Area which could cause injury to person or
property.
2.1.2 Commencement of Association Maintcnancc Obligations.The Association's obligation
to maintain the Common Area commences on the first day of the calendar month following the date
on which maintenance responsibility for such Common Area is tendered by Declarant. Until the
Association is responsible for maintaining the Common Area, Declarant shall maintain such
Common Area.
2.1.3 Acceptance of Common Area. The Associatiotti must accept ownership of, or
maintenance responsibility for;orboth,each portion of Common Area when tendered by Declarant,
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and the Association shall execute an acceptance of Common Area if requested to do so by Declarant.
No Owner shall interfere with the exercise of the foregoing obligations by the Association,or with
the rights of Declarant.
2.l.4_Association Power to Perform Owner Obligations. if an Owner fails to maintain any
Improvement that the Owner is obligated to maintain,the Association has the power but not the duty
to perform the maintenance at the Owner's expense. In an emergency,the Association may perform
the maintenance immediately; in all other cases,the Association may perform the maintenance after
Notice: and Hearing. For purposes hereof, an "emergency" is any situation where the Board
determines that there is an imminent threat of injury to persons or damage to property.
2.1.5 Disputes Regarding Maintenance Obligations. Disputes between Owners or between
any Owner and the Association regarding maintenance shall be resolved in accordance with the
enforcement process described. in Section 12.1 herein below.
2.l.6 Damage by Owners. Each Owner is liable to the Association for all damage to the
Common Area that is sustained due to the negligence or willful act of the Owner or the Owner's
Pennittees. The Association may, after Notice and Hearing, levy a Individual Assessment against
the Owner to reimburse the Association for costs incurred by the Association in the repair of damage
to Common Area and facilities for which the Owner or the Owner's Permittees were responsible.
The amount of the Individual Assessment may include(a)the amount of any deductible payable on
the insured portion of the loss(if the Association elects to make a claim under its insurance policy),
(b)all costs and expenses actually incurred by the Association to correct damage that is not covered
by the Association's insurance or for which no claim has been made, and (c) the amount of the
increase in premiums payable by the Association,to the extent the increase is caused by or results
from damage attributable to the Owner or the Owner's Permittees. In accordance with California
Civil Code §6824(a), the Association shall have the power to impose a lien for the Individual
Assessment.
2.l.7 Environmental Compliance. Each Owner shall comply,and shall ensure that all of its
Permittees comply,with all laws,rules,regulations,judgments,orders,permits,licenses,agreements,
covenants,restrictions,requirements orthe likerelating to the environmental condition ofthe Project
or the presence of Hazardous Materials in, on, above, under or otherwise affecting the Project
including,without limitation,the Hazardous Materials Laws. Each Owner shall protect, indemnify,
defend, and hold Declarant, each other Owner and the Association, and each of their respective
members,managers,partners,directors,officers,employees,shareholder,agents,lenders,successors
and assigns harmless from and against all claims, expenses, liabilities, loss, damage, and costs,
including reasonable attorney fees,arising as a result(directly or indirectly)of or in connection with
any violation of the preceding sentence occurring within such Owner's Unit or,to the extent arising
from actions of such Owner or any Permittee of such Owncr, within the Common Area.
2.2 PERMITTED USES. Except as otherwise set forth herein, the Condominium Building,
the Units,and all Improvements constructed therein shall only be used for professional services and
similar uses, including medical, clinical psychology, psychotherapy, LCSW. LMFT, dental,
13
orthodontic,law and accounting offices and medical services or diagnostic laboratories. Any uses
which require issuance of a conditional use permit or amendments thereto under applicable
Governmental Requirements shall further require the approval of Declarant until the Declarant
Rights Termination Date, and thereafter the Board. Any change in use which would impact the
parking requirements or traffic mitigation requirements for the Project as a whole shall further
require the approval of Declarant until the Declarant Rights Termination Date, and thereafter the
Board. Approvals or disapprovals by Declarant under this Section 2.2 shall be made in the sole
discretion of Declarant.
2.3 PROHIBITED USES. The following operations and uses shall not be permitted in the
Project unless specifically authorized by Declarant until the Declarant Rights Termination Date,and
thereafter by the Board:
(a) recycling facilities;
(b) storage or refining of Hazardous Materials, except if incident to a permitted use and in
compliance with all Governmental Requirements, including all Hazardous Materials Laws;
(c)any business that is primarily sexually oriented,such as a business offering nude or semi
nude entertainment, a massage parlor, escort service, adult theater, adult bookstore or similar
businesses;
(d) any operation or use that would increase the rate of insurance for the Project or any Unit
within the Project (provided,however, that operations or uses which are normal and customary to
any permitted use but which would nonethe!ess cause an increase in the rate of insurance for the
Project or any other Unit may be conducted with the prior written:permission of Declarant,until the
Declarant Rights Termination Date, and thereafter the Board, if the Owner requesting such
permission reimburses any additional insurance costs incurred by the Association or any other Owner
as a result of such operation or use);
(e)use of any portion of the Project for temporary lodging or residential purposes(provided,
however, that this Section shall not be interpreted to prohibit overnight occupancy by patients of
medical practices occupying the Project);
(f)use of any portion of the Project for auction,sale or other similar commercial activities
without the prior written approval of Declarant until the Declarant Rights Termination Date, and
thereafter the Board (which may be withheld in their respective sole discretion).
2.4 LEASES. Each lease or other rental agreement for a Unit shall provide that failure by the
tenant to comply with the Governing Documents constitutes a default of the tenant under the lease
or rental agreement.
2.5 NUISANCES. No Owner shall commit or sutler to be committed any public or private
nuisance or other act or thing which may unreasonably interfere with any other Owner or the use of
any other Unit. It is the intent of this Declaration that nuisances be determined in accordance with
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1i�
applicable law using objective standards,and not based on individual subjective criteria.No Person
may use any Condominium for any use which would violate the provisions of the Governing
Documents or increase the rate of insurance for the Projector any other Condominium in the Project.
Notwithstanding the foregoing, the conduct of any activities in the Project which are normal and
customary for Projects similar in nature and permitted uses shall not, to the extent otherwise
permitted by this Declaration and the applicable zoning for the Project, be deemed to constitute a
nuisance or otherwise violate this restriction, so long as the activities are conducted in compliance
with objective performance standards contained in applicable Governmental Requirements.
2.6 TRASH AND WASTE MATERIALS. There shall be no outdoor storage of trash or
waste materials of any kind in the Project, except in trash containers placed in outdoor trash
enclosures. In no event shall any Owner or Permittee thereof deposit any trash or other materials
within such trash receptacles except in strict compliance with all applicable Hazardous Materials
Laws.Without limiting the foregoing,waste materials requiring special handling and transportation
must be stored in appropriate containers within the Unit as required under applicable Hazardous
Materials Laws,and kept out of regular outdoor trash containers. Any outside storage prohibited by
this Section 2.6 may be removed by the of the offending Owner.
2.7 OWNER IMPROVEMENTS ON COM MON AREA.No mechanical equipment maybe
placed on the roof or outside of a Condominium Building, including air conditioning, heating and
ventilating equipment and vents, except as part of the original construction of the Condominium
Building, without the approval of Declarant until the Declarant Rights Termination Date, and
thereafter the Board and the City.
2.8 LOADING FACILITIES. No loading and unloading activities shall be conducted in any
manner which may obstruct free traffic flow during normal business hours or otherwise constitute
a nuisance or create a safety hazard. All temporary loading and unloading activities shall be
conducted from designated loading areas in the Project, subject to such reasonable restrictions as
may be imposed by the Board (including restrictions on the maximum duration of loading and
unloading activities, and the hours during which such activities are undertaken).
2.9 PARKING RESTRICTIONS.
2.9.I General Restrictions. No vehicle may be parked within any portion of the Common
Area other than within the striped parking spaces, and in a manner not extending beyond the limits
of the striped parking space. No parking shall be permitted which may obstruct free traffic flow,
constitute a nuisance,or otherwise create a safety hazard. No Person my repair,maintain or restore
any vehicle within the Common Area.
29.2 Parking Spaces.
(a) Parking spaces in striped stalls in the parking area located on the West side of the
Condominium Building(the"West Parking Area")are reserved for use by the Ownerof Unit A and
hislherlits Permittees during such Owner's or Permittee's regular office hours.
IS
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(b) Except and excluding the three (3) carport parking spaces assigned to the Owners as
provided in Section 2.9.3(a) herein below which constitute Exclusive Use Area, parking spaces in
striped stalls in the parking area located on the East side of the Condominium Building(the "East
Parking Area"),including the one(1)unassigned carport parking space,are free and unreserved and
available to all Owners and his/her/its Permittees on a first come first serve basis.
(c)Notwithstanding Sections 2.9.2(a) and 2.9.2(b) herein above:
(i)In the event an Owner or Permittee thereof is deemed to be a"Regular Excessive
User', the Association may designate parking stalls in the West Parking Area and/or East Parking
Area(including the one(1) unassigned carport parking space) for the exclusive use by the Owners
of the other Units and Permittees thereof,during their regular office hours only not to exceed a total
of sixteen (16) parking spaces [or one-third (113rd) of the total parking spaces in the Project] per
Unit, including their respective assigned carport parking spaces. For purposes of this Section.
2.9 2(c)(i) Regular Excessive User shall mean and refer to an Owner or Permittee thereof who is
using on a regular basis more than sixteen (16) parking spaces at any one time, including their
carport parking space.
(ii)When the Owner of Unit A or Permittee thereof is closed for business(excluding
closing during the lunch hour) the Owners of Unit B and Unit C and the Permittees thereof who are
open for business shall be allowed to use the West Parking Area on a temporary basis,only during
the time of the Owner of Unit A or the Permittees thereof is closed for business. Once the Owner
of Unit A or the Permittees thereof has reopened for business,the temporary use ofthe West Parking
Area by the Owners of Unit B and Unit C and the Permittees thereof shall immediately cease.
2.9.3 Carport. A carport structure containing four (4) parking spaces is located in the
Common Area parking lot on the east side of the Condominium Building. The carport structure and
carport parking spaces constitute Exclusive Use Area.
(a)The carport structure and carport parking spaces in the Project are depicted and identified
by arabic letters on the Condominium Plan. Of the four (4) carport parking spaces, one carport
parking space will be assigned to each Owner of a Unit, as determined by the Declarant, for the
exclusive use of such Owner, in the deed conveying each Unit, One(1)carport parking space shall
be unassigned. The right to use an assigned Exclusive Use Area carport parking space is an
exclusive easement appurtenant to the Owner's Unit,and it will run with the Unit for the benefit of
the Owner and future Owners of the Unit.
(b) Each carport parking space shall be used and maintained only for the purpose of parking
motor vehicles,consisting of automobiles,motorcycles and light duty trucks.No more than one (1)
automobile, light duty truck or motorcycle shall be parked in a carport parking space. Storage or
other uses within a parking space or carport parking space shall not be permitted.
(c)No Owner shall park his/her/its mobile home, travel homes, travel trailer, camper,house
trailer, boat, boat trailer,or similar equipment or permit his/her/its family members or permittees,
to park such vehicles or equipment in any carport parking space or in any other part of the Project.
16
(d)The assignment ofthe right of the exclusive use of an Exclusive Use Area carport parking
space from one Owner to another or between two(2)Unit Owners, is authorized,provided,that the
approval of the Board is first obtained, and that the transfer or exchange of such exclusive use is
evidenced by a recorded document.
(e) Except as described in this Section 2.9.3,no other portion of the Common Arca shall be
Exclusive Use Area.
2.9.4 Regulation and Restriction by Board. The Board has the power to: (a) establish
additional rules and regulations concerning parking in the Common Area, including without
limitation, designating "parking," "reserved parking," "exclusive parking," "visitor parking,"
"handicapped parking,"and"no parking"areas,and/or prohibiting or restricting employee parking
in the Project,(b)prohibit any vehicle parking or operation in the Project if it determines in its sole
discretion that the activity is a nuisance,(c)establish systems of controlled parking in the Project as
the Board may determine reasonably necessary to ensure compliance with City parking requirements
and the equitable use of available parking within the Project,and(d)enforce all parking and vehicle
use regulations applicable to the Project, including the imposition of fines against the violating
Owner or Permittee, and the removal of violating vehicles in accordance with California Vehicle
Code§2265$or other applicable laws.The City may,but is not required to,enforce such restrictions,
rules and regulations, in addition to applicable laws and ordinances.
2.10 SIGNS.All Signs displayed anywhere in the Project must comply with(i)all applicable
laws and regulations governing the type of advertising permitted of the Owner or Permittee by all
licensing authorities with jurisdiction over the Projector the applicable Owneror Permittee,and(ii)
it applicable,the sign program for the Project(the"Sign Program')approved by Declarant and the
City,or following the Declarant Rights Termination Date,adopted by the Board of Directors from
time to time subject to approval by the City. The Sign Program shall not regulate the content of
political Signs; provided however, the Sign Program may regulate the time, place and manner of
posting of political Signs. No Signs may be erected, hung, flown or maintained on or over the
Common Area without the prior written approval of Declarant or, following the Declarant Rights
Termination Date, the Board. Such prior written approval is also required for any Signs placed
within a Unit but visible from the outside of the Unit; provided, however, approval shall not be
required to show or display any such Sign or notice of customary and reasonable dimension and
location (provided such Sign otherwise complies with the Sign Program) which states that a
Condominium is for rent or sale, or to display any Signs or notices required by a legal proceeding.
The Board may summarily cause all unauthorized Signs to be removed or destroyed. Approval of
a Sign pursuant to this Section shall not affect an Owner's independent duty to comply with any
review or permit requirements of the City prior to Sign installation.
2.11 OWNERSHIP OF TWO CONTIGUOUS UNITS. The Owner of two Units which are
contiguous, may construct, at its expense and in accordance with all applicable Governmental
Requirements,a means of access(such as a doorway)between the Units. If two(2)contiguous Units
are under common ownership,the Units shall be deemed to be a single Unit(the"Combined Units").
If the Owner of such connected Units sells, transfers or conveys any one of the Units,then prior to
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the recordation of the Deed or instrument of transfer, the means of access shall be sealed off, the
Dividing Wall that was so pierced and any outer portion of the Common Area that had been altered
shall, at the Owner's expense,be completely reconstructed to its original "as-built"condition. No
bearing walls or common utilities shall be removed, altered or damaged in the course of such
construction. No modification shalt be made which affects the structural integrity of the Project or
impairs any other Owner's reasonable use of the Common Area, or the utilities that maybe located
therein, or the value of the Project. All costs and expenses of such modifications and subsequent
restoration of the modifications shall be borne by the Owner of the Units so joined. Such
modifications shall not change the status of the Units which shall continue to be treated as separate
Condominium Units.
2.12 MECHANICS LIENS. No Owner may cause or permit any mechanics lien to be filed
against the Common Area or any portion thereof or another Owner's Condominium, for labor or
materials alleged to have been furnished or delivered to such Owner. Any Owner who permits a
mechanics lien to be so filed shall cause the lien to be discharged no later than five (5) days after
receipt of written notice to discharge the lien is received from the Board. if the Owner fails to
remove a mechanics lien after written notice from the Board,the Board may discharge the lien and
levy an Individual Assessment against the violating Owner to recover the cost of discharge.
2.13 COMMONLY METERED UTILITIES. Ifany utility services are not separately metered
to measure individual condominium usage,but instead are commonly metered to the Condominium
Building and/or the Common Area, the Association has the power to enter into contracts with
metering service companies for submetering,billing and collection of utility charges to each Owner.
The Association may require each Owner to pay to the Association a deposit as determined by the
Association as security for such Owner's obligation to pay submetered utility charges when due.
2.14 SOLAR ENERGY SYSTEM.
2.14.1 No"Solar Energy System"(as defined in Civil Code flection 801.5)may be installed
by an Owner on the roof or other exterior surface of the Condominium Building(which are part of
he Common Area)without the prior written approval of the other Owners.
2.14.2 Pursuant to Civil Code Section 714(e)(2)(B),the Association must approve or deny
an Owner's application for installation of a Solar Energy System in writing, and if it does not deny
the application in writing within forty-five(45)days from the date of receipt of the application,the
application shall be deemed approved, unless the delay is the result of a reasonable request for
additional information.
2.1 4.3 In the event the Owner's application is approved or deemed to be approved pursuant
to Section 2.14.2 herein above, the Owner shall be responsible for the maintenance, repair or
replacement of the Solar Energy System,at his/her/their/its sole cost and expense.
2.14.4 In accordance with Civil Code Section 714.1(h), the Owner shall be responsible for
the maintenance, repair and replacement of the; roof and other components of the Condominium
Building affected by or related to the Solar Energy System, as well as the installation and/or use
thereof,at his/her/their/its sole cost and expense and in compliance with all applicable governmental
or quasi-governmental laws, statutes, codes, ordinances, regulations and requirements.
2.14.5 Pursuant to Civil Code Section 714.1(e),the installer of Solar Energy Systems shall
indemnify or reimburse the Association for loss or damage caused by the installation,maintenance
or use of the Solar Energy System.
2.14.6 The installation of Solar Energy System,which has been approved or deemed to be
approved pursuant to Section 2.14.2 herein above, shall be in compliance with all applicable
government or quasi governmental laws,statutes, codes,ordinances,regulations and requirements.
2.15 WORK PERFORMED WITHIN UTILITY CHASE OR DIVIDING WALLS. Any
Owner who performs any work anywhere within the Utility Chase or Dividing Walls, including
without limitation,any alterations or modifications of or disruptions to any of the Utility Facilities,
regardless of where such Utility Facilities are located within the Utility Chase or Dividing Walls,or
if they serve all Units or only certain Units, shall be solely responsible for paying the entire cost and
expense of all such work. Such Owner's obligation to pay the entire cost and expense of any such
work shall include, but not be limited to, the cost and expense of the work performed within that
portion of the Utility Chase located directly above the upper limit of his/her/theirlits Unit.
2.16 WORD BY UNIT OWNER AFFECTING FXTFRIOR PERIMETER WINDOWS OF
CONDOMINIUM BUILDING. The cost of making any change to or replacing any exterior
perimeter windows on the Condominium Building, resulting from or necessitated by any
construction and/or remodeling work by an Owner in or to his/her/its Unit,shall be paid for solely
by the Unit Owner.
2.17 IMPROVEMENTS CONSTRUCTED AND/O.R INSTALLED BY A UNIT OWNER
WITHIN THE COMMON AREA. In the event an Owner of a Unit is required by the City or other
governmental or quasi-governmental agency to constructor install any Improvements on or within
the Common Area in connection with the alteration,modification or remodeling of his/her/their/its
Unit,the cost of such construction and/or installation shall be paid entirely by the UnitOwner. Once
such Improvements have been constructed and/or installed, they shall automatically be included in
and become part of the Common Area and, as such, shall be maintained and repaired by the
Association as an Association expense.
END OF ARTICLE 2
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ARTICLE 3
INDEMNIFICATION; NON-LIABILITY
3.1 INDEMNIFICATION.
3.1.1 For Association Representatives. To the fullest extent authorized by law, the
Association has the power and duty to indemnify Board members, Association officers, and all
Association committee members for all damages, pay all expenses incurred, and satisfy any
judgment or fine levied, as a result of any action or threatened action brought because of an act or
omission within what such Person reasonably believed to be the scope of the Person's Association
duties C'Official Act"). Board members, Association officers, and all Association committee
members are deemed to be agents ofthe Association for purposes of obtaining indemnification from
the Association pursuant to this Section when they are performing Official Acts.The entitlement to
indemnification under this Declaration inures to the benefit ofthe estate,executor,administrator and
heirs of any person entitled to such indemnification.
3.1.2 For Other Agents of the Association. To the fullest extent authorized by law, the
Association has the power,but not the duty,to indemnify any other Person acting as an agent of the
Association for damages incurred, pay expenses incurred,and satisfy any judgment or fine levied,
as a result of any action or threatened action because of an Official Act.
3.1.3 Provided by Contract.The Association also has the power,but not the duty,to contract
with any Person to provide indemnification in addition to any indemnification authorized by law on
such terms and subject to such conditions as the Association may impose.
3.2' NON-LIABILITY.
3.2.1 General Rule.No Person is liable to any other Person,or to the Association or any party
claiming inthe name of the Association,for injuries or damage resulting from such Person's Official
Acts, except to the extent that such injuries or damage result from the Person's willful or malicious
misconduct.The Association is not liable for damage to property in the Project unless caused by the
negligence of the Association, the Board,the Association's officers, the Manager or the Manager's
staff.
3.2.2 Non-liability or Volunteer Board Members and Officers. Except as provided in
California Corporations Code §5047.5,a volunteer Board member or volunteer Association officer
shall not be personally liable to any Person who suffers injury, including bodily injury, emotional
distress,wrongful death or property damage or loss as a result of the negligent actor omission of the
volunteer officer or Board member occurring(1)within the scope of such volunteer's duties; (2)in
good faith, (3) in a manner that the volunteer believes to be in the best interest of the Association,
and(4)is in the exercise of the volunteer's policymaking judgment,so long as the Association keeps
one or more policies of insurance which include coverage for general liability of the Association in
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the amount required by Corporations Code §5047.5(c) and that insurance is in effect for the cause
of action being brought.
3.2.3 Non-liabilityof Owners. Under California Civil Code§6840,no Owner shall be liable
for any cause of action in tort which can be brought against the Owner solely because of the Owner's
undivided interest in the Common Area so long as the Association maintains insurance which
includes coverage forgeneral liabilityofthe Association in the amount required byCivil Code§6840
and that insurance is in effect for the cause of action being brought.
END OF ARTICLE 3
ARTICLE 4
THE ASSOCIATION
4.1 GENERAL DUTIES AND POWERS. The Association has the duties and powers
enumerated and described in the Governing Documents, in addition to the general and implied
powers that a nonprofit mutual benefit corporation organized under California Law may have that
are necessary or proper in operating for the general welfare of the Owners,subject only to the limits
on the exercise of such powers listed in the Governing Documents. Unless otherwise indicated in
the Articles,Bylaws, or this Declaration, the powers of the Association are exercised by the Hoard.
4.2 SPECIFIC DUTIES AND POWERS. In addition to its general powers and duties, the
Association has the following specific powers and duties.
4.2.1 Common Arca.The power and duty to accept,maintain and manage the Common Area
in accordance with the Governing Documents. The Association may install or remove capital
Improvements on the Common Area. The Association may reconstruct, replace or refinish any
Improvement on the Common Area.
4.2.2 Utilities. The power and duty to obtain, for the benefit of the Project,all water,gas and
electric services necessary for the Common Area.
4.2.3 Granting Rights. The power to grant exclusive or nonexclusive easements, licenses,
rights of way or other interests in the Common Area, to the extent any such grant is reasonably
required(a) for Improvements to serve the Project,(b) for purposes of conformity with the as-built
location of Improvements installed or authorized by Declarant or the Association, (c)in connection
with any lawful lot line adjustment,or(d)for other purposes consistent with the intended use of the
Project. This power includes the right to create and convey easements for one or more Owners over
portions of the Common Area. The Association may de-annex any portion of the Project from the
encumbrance of the Declaration in connection with any lawful lot line adjustment.
4.2.4 Employ Personnel.The power to employ Persons necessary for the effective operation
and maintenance of the Common Area,including legal, management and accounting services.
4.2.5 Insurance. The power and duty to keep insurance for the Common Arca in accordance
with this Declaration.
4.2.6 Sewers and Storm Drains. The power and duty to maintain any private sewer systems,
private storm drains, or private drainage facilities in the Common Area in accordance with the
Governing Documents.
4.2.7 Rules and Regulations; Design Guidelines. The power, but not the duty, to adopt,
amend,repeal and create exceptions to Rules and Regulations concerning use of the Project,parking
restrictions, minimum standards of property maintenance, and any other matter under the
Association's jurisdiction,and to Design Guidelines.Neither Declarant nor the Association shall be
22
liable in damages to any Owner,or to any other Person subject to or affected by this Declaration,on
account of the establishment, amendment, restatement, deletion or waiver of any Mules or
Regulations or Design Guidelines.
4.2.8 Borrowings. The power to borrow money for purposes authorized by the Articles,
Bylaws, Declaration or any Supplemental Declarations,and to use the Common Arca as security for
the borrowing. The foregoing shall include the right to pledge the Association's right, title and
interest in and to Assessments collected in accordance with this Declaration, provided that such
pledge shall exempt therefrom any portion of such Assessments necessary to fund the provision of
essential services which the Association is obligated to perform hereunder.
4.2.9 Contracts. The power to enter into contracts,including contracts with Owners or other
Persons to provide services or to maintain Improvements in the Project and elsewhere which the
Association is not otherwise required to provide or maintain by this Declaration.
4.2.1 U Standinp,to Resolve Disputes.The Association shall have standing to institute,defend,
settle or intervene in litigation, alternative dispute resolution or administrative proceedings (each,
an"Action")in its own name as the real party in interest and without joining the Owners,in matters
pertaining to(a)damage to the Common Area,(b)damage to portions of the Condominiums which
the Association is obligated to maintain or repair,and(e)damage to portions of the Condominiums
which arises out of, or is integrally related to, damage to the Common Area or portions of the
Condominiums that the Association is obligated to maintain or repair(each, a"Claim").However,
the Association shall not have standing to institute, defend, settle or intervene in any Action in any
matter pertaining only to an individual Condominium and not included in clauses(b) or(c) of this
Section 4.2.1 .
The Association may,in its sole discretion,elect to institute,intervene in,continue,settle or
dismiss an Action at any time. If the Association institutes or intervenes in an Action on a Claim,
the Association's standing shall be exclusive, and the Owners shall thereafter be barred from
instituting a new Action or maintaining a pending Action on the same Claim. The Association's
election to institute or intervene in an Action on a particular Claim shall not create any affirmative
obligation on the part of the Association to maintain, settle or dismiss the Action, except in the
Association's sole discretion, and subject to Section 12.4 of this Declaration. If the Association
elects to settle an Action,the terms of the settlement shall be binding on the Owners,and the Owners
shall be barred from instituting or continuing any other Action on the same Claim. If the Association
elects to dismiss an Action, the dismissal shall be with prejudice to the institution or continuation
by one or more Owners of any Action on the same Claim.
4.3 STANDARD OF CARE.
4.3.1 General Scope of Powers.Rights and powers conferred on the Board or committees or
representatives of the Association by the Governing Documents are not duties, obligations or
disabilities charged upon those Persons unless the rights and powers are explicitly identified as
including duties or obligations in the Governing Documents or law. Unless a duty to act is imposed
on the Board or committees or representatives of the Association by the Governing Documents or
21
law,the Board and the committees or representatives have the right to decide to act or not act.Any
decision not to act is not a waiver of the right to act in the future.
4.3.2 Business Affairs. This Section 4.3.2 applies to Board member actions in connection
with management, personnel, maintenance and operations, insurance,contracts and finances. Each
Board member shall perform the duties of a Board member in good faith, in a manner the Board
member believes to be in the best interests of the Association and with such care, including
reasonable inquiry, as an ordinarily prudent person in a like position would use under similar
circumstances. When performing Board duties,a Board member is entitled to rely on information,
opinions, reports or statements, including financial data prepared or presented by.
(a) one (1) or more officers or employees of the Association whom the Board member
believes to be reliable and competent in the matters presented;
(b)counsel,independent accountants orother Persons as to matters which the Board member
believes to be within such Person's professional or expert competence; or
(c),a committee of the Board upon which the Board member does not serve, as to matters
under its designated authority,which committee the Board member believes to merit confidence,so
long as, in any such case, the Board member acts in good faith, after reasonable inquiry when the
need therefor is indicated-by the circumstances and without knowledge that would cause such
reliance to be unwarranted.
This Section 4.3.2 is intended to be a restatement of the business judgment rule established
in applicable law as it applies to the Association. All modifications and interpretations of the
business judgment rule applicable to the Association shall be interpreted to modify and interpret this
Section 4.3.2.
4.3.3 Association Governance.This Section 4.3.3 applies to Board actions and decisions in
connection with interpretation and enforcement of the Governing Documents, architectural and
landscaping control,regulation of uses within the Project,rule making and oversight of committees.
Actions taken or decisions made in connection with these matters shall be reasonable, fair and
nondiscriminatory.
4.4 MEMBERSHIP.
4.4.1 Generally. Every Owner shal l automatically acquire a Membership in the Association
and retain the Membership until such Owner's Condominium ownership ceases,at which time such
Owner's Membership shall automatically cease. Ownership of a Condominium is the sole
qualification for Membership.
. 4.4.2 Transfer. Memberships are not assignable or transferable except to the Person to whom
title to the Condominium is transferred, and every Membership is appurtenant to and may not be
separated from the fee ownership of the Condominium.A prohibited transfer is void and will not be
reflected in the records of the Association. Any Owner who has sold the Owner's Condominium to
24
a contract purchaser under an agreement to purchase may delegate in writing the Owner's
Membership rights to the contract purchaser. The Association may levy a reasonable transfer fee
against a new Owner and such Owner's Condominium (which fee shall be paid through escrow or
added to the Annual Assessment chargeable to such new Owner, at the Board's discretion) to
reimburse the Association for the administrative cost of transferring the Membership to the new
Owner on the Association's records.
4.4.3 Number of Votes. The Association shall have one class of voting Membership. Each
Member shall be Inti tied to one(1)vote:for each Unit owned, When more than one(])person holds
an interest in any Unit,all such persons shall be Members. The vote for such Unit shall be exercised
as they among,themselves determine, but in no event shall more than one (1) vote be cast with'
respect to any Unit.
END OF ARTICLE 4
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ARTICLE 5
ARCHITECTURAL CONTROL
5.1 ARCHITECTURAL CONTROL REQUIREMENTS.
5.1.1 Improvements RequiringApproval.No Owner shall permit or cause any portion ofsuch
Owner's Unit or Exclusive Use Area,or any additional Improvements located therein,to be altered,
installed, constructed, reconstructed, replaced, assembled, maintained, relocated, removed or
demolished (each, a "Proposed AIteration") unless such Proposed Alteration conforms to all
applicable Governmental Requirements and any Design Guidelines adopted pursuant to this
Declaration_Without limitingthe foregoing,the following Proposed Alterations shall furtherrequire
the approval of the Approving Authority(as defined in Section 5.2 herein below):
(a) any Proposed Alteration which would be visible from outside of a Unit;
(b) any Proposed Alteration which would pierce, modify or otherwise impact the roof,
perimeter walls,Dividing Walls,load-bearing orutility-bearing walls,ceilings, foundations orother
structural or utility bearing portions of the Condominium Building;
(c) any Proposed Alteration that would impact in any manner operation of any mechanical
systems serving any other Owner's Unit within a Condominium Building;
(d)any Proposed Alteration which would materially increase the load on any utility services
provided by the Association orotherwise adversely impact any utility improvements installed within
the Project for the delivery of such utility services or any common utility services benefiting more
than a single Unit;
(e)any Proposed Alteration that would cause a significant increase in the cost of insurance
to be carried pursua;it to Ailicle 8 of this Declaration by the Association or the Owner of any other
Unit; and
(f) any other Proposed Alteration which would materially, adversely impact the use and
occupancy of any other Owner's Unit (other than temporary, minor impacts resulting from
construction activity related to the performance of such Proposed Alteration).
5.1.2 Submittals. To obtain approval fora proposed Alteration,the Owner shall submit a set
of plans and specifications to the Approving Authority showing the Proposed Alteration in sufficient
detail to enable the Approving Authority to make its determination. Within thirty(30) days after
receiving the Owner's submittal, the Approving Authority shall approve or disapprove such
submittal,or request such additional plans and specifications or other information as are reasonably
necessary to enable the Approving Authority to make its determination.
3[,
5.1.3 Inspection.The Approving Authority may inspect any work for which approval ofplans
is required under this Article 5. The right to inspect includes the right to require any Owner to take
such action as maybe necessary to remedy(including removal of)any noncompliance with the pians
for the work approved by the Approving Authority.
5.l.4 Identical Replacements. Approving Authority consent shall not be required for the
restoration or replacement of any Owner Improvement which will be substantially identical to the
original improvements located within the Unit at the time the Unit was originally constructed,or any
Owner Improvement subsequently installed within the Unit but previously approved by the
Approving Authority.
5.2 APPROVING AUTHORITY. The Association shall be the"Approving Authority" for
purposes of exercising all approval, inspection and enforcement rights set forth in this Article 5,
From and after the Declarant Rights Termination Date,the Board shall have the Approving Authority
for purposes of this Article 5;provided,however, the Board may appoint a committee of members
of the Association (the "Architectural Review Committee") and delegate to such Architectural
Review Committee its authority hereunder. From and after any such delegation, the Architectural
Review Committee shall be deemed to be the Approving Authority. The Approving Authority shall
further have the power to retain consultants to advise the Approving Authority in connection with
the review,approval and inspection of any Proposed Alteration. Notwithstanding any approval by
the Approving Authority,the Owner is responsible for complying with all applicable Governmental
Requirements, and for consulting and using qualified consultants and contractors when designing,
installing or constructing any Proposed Alteration.
5.2.1 Basis ofApproval.The Approving Authority may disapprove any submittals hereunder
if it determines that the Proposed Alteration will or could (a)adversely affect the integrity of the
structural, mechanical or common utility systems in the Condominium Building, (b)significantly
increase insurance or utility costs for the Association or any other Owner, (e)materially adversely
affect the use or occupancy of any other Owner's Unit,(d)cuts the slab, or (e) is not otherwise in
harmony or conformity with the appearance of the Project or'the applicable Governmental
Requirements, this Declaration or any Design Guidelines adopted pursuant to this Declaration.
5.2.2 No Liability. Neither the Approving Authority nor any Person retained by the
Approving Authority in connection with the review and approval of Proposed Alterations,nor their
respective agents,employees,attorneys or consultants(collectively,"Approving Authority Parties"),
shall be liable or responsible on account of(a) the approval or disapproval of any submittal under
this Article 5,(b) any construction,performance or nonperformance by an Owner or its Permittees
of any work, whether or not pursuant to approved submittals, (c) any damage that results from
improvements installed,constructed or modified by or at the direction of an Owner or its Permittees,
or(d)any mistake in judgment, negligence,act or omission in the Approving Authority's exercise
of its powers hereunder.Every Person who makes a submittal for approval of a Proposed Alteration
agrees by reason of such submittal, and every Owner or occupant of a Condominium,by acquiring
an interest in any Condominium affected by such Proposed Alteration, agrees not to bring any suit
or action against Declarant,the Association or the Approving Authority or apy Approving Authority
27
Parties,seeking to recoverdamages.Approval of any submittal by the Approving Authority shall not
constitute the assumption of any responsibility by, or impose any liability upon, Declarant, the
Association or the Approving Authority or any Approving Authority Parties, with respect to the
accuracy or sufficiency of the submittal.
END OF ARTICLE 5
�g
ARTICLE 6
PROPERTY EASEMENTS AND RIGHTS
6.1 EASEMENTS.
6.1.I Maintenance and Repair. Declarant reserves for the benefit of the Association and all
Association agents, officers and employees, nonexclusive easements over the Project as necessary
to fulfill the obligations and perform the duties of the Association.
6.1.2 Encroachments. Declarant reserves a reciprocal casement appurtenant to each
Condominium over the other Condominiums and the Common Area to accommodate (a) any
existing encroachment of any wall or any other lmprovcmcnt installed by Declarant or approved by
the Approving Authority, and (b) shifting, movement or natural settling of any Condominium
Building or other Improvements.
6.1.3 Easements for Public Service Use. Declarant reserves casements over the Project for
public services of the local government agencies, including the right of law enforcement and fire
protection personnel to enter the Project to carry out their official duties.
6.1.4 Owners' Easements in Common Area. Declarant reserves nonexclusive easements,
including for pedestrian and vehicular access,on,over and through the Common Area as reasonably
necessary for the use and enjoyment of each Condominium. This casement is appurtenant to and
passes with title to every Condominium, but is to be exercised subject to the rights, restrictions,
covenants and casements in the Governing Documents and the Association's right to reasonably
restrict access to rooftops, maintenance facilities and other areas of the Common Area that are
designated from time to time by the Board.
6.1.5 Exclusive Use Areas. Declarant reserves exclusive easements over the Common.Area
for use and enjoyment of Exclusive Use Areas as defined in this Declaration. The Exclusive Use
Area easements shall be conveyed by Recorded deed, and shall be appurtenant to and run with the
Owner's Unit, subject to the right of the Association and its representatives to enter the Exclusive
Use Areas to carry out Association maintenance and other obligations as provided in the Governing
Documents.
6.1.6 Drainage Easements.Declarant reserves reciprocal nonexclusive easements fordrainage
of water over, across and on the Project.
6.1.7 Utility Easements.Declarant reserves for itself andthe Owners of each Unit easements
over the Common Area and each Unit for purposes of installing,repairing and maintaining Utility
Facilities,and public and private utility improvementsand telecommunications systems which serve
the Units, including without limitation, access to the Utility Chase, Dividing Walls and roof of the
Condominium Building;provided,however,that no such Utility Facilities orpublic orprivate utility
improvements,telecommunications systems or any wires,conduits,or other facilities or equipment
29
related thereto may be installed within any other Owner's Unit except within the Dividing Walls,
or the Utility Chase.
6.2 DELEGATION OF USE. Any Owner may delegate the Owner's right to use the Common
Area in writing to the Owner's tenants,contract purchasers or subtenants who occupy such Owner's
Unit, subject to regulation by the Board.-
6.3
oard:6.3 RIGHT OF ENTRY.
6.3.1 Association. The Association has the right to enter the Exclusive Use Areas and the
Units to inspect the Project,and may take whatever corrective action it determines to be necessary
or proper. Entry may be made after at least three(3)days' advance written notice to the Owner or
occupant of the Unit except for emergency situations,which shall not require notice. Any damage
to a Unit or Exclusive Use Area caused by such entry shall be repaired by the Association.
6.3.2 Owners.Each Owner shall permit other Owners,and their representatives,to enter that
Owner's Exclusive Use Area and Unit to install,maintain,operate and repair mechanical or electrical
services serving a Unit if(a) requests for entry are made in advance, (b) entry is made at a time
,reasonably convenient to the Owner or occupant whose Exclusive Use Arca or the Unit is to be
entered,and(c)the entered Exclusive Use Area or the Unit is left in substantially the same condition
as existed immediately preceding such entry. Any damage to the Exclusive Use Area or the Unit
caused by such entry shall be repaired by the entering Owner.
END OF ARTICLE 6
30
ARTICLE 7
ASSESSMENTS
7.1 PERSONAL OBLIGATION TO PAY ASSESSMENTS. Each Owner shall pay to the
Association all Assessments established and collected pursuant to this Declaration.All Assessments,
together with late payment penalties, interest, costs,and reasonable attorney fees for the collection
thereof, are a charge and a continuing lien on the Condominium against which such Assessment is
made.Each Assessment,together with late payment penalties,interest,costs and reasonable attorney
fees,is also the personal obligation of the person who was the Owner of the:Condomi n ium when the
Assessment accrued. The personal obligation for delinquent Assessments may not pass to any new
Owner unless expressly assumed by the new Owner or unless the new Owner has actual or
constructive knowledge of such delinquent Assessments,
7.2 ASSOCIATION ACCOUNTS.The Association shall establish such Association accounts
as the Board deems necessary into which shall be deposited all money paid to the Association and
from which disbursements shall be made,as provided in this Declaration.The Association accounts
may be established as trust accounts at a banking or savings institution.
7.3 PURPOSE OF ASSESSMENTS. The Assessments shall be used exclusively to (a)
promote the Owners' welfare, (b) operate, improve and maintain the Common Area, and (c),
discharge any other Association obligations under the Governing Documents.
7.4 WAIVER OF USE.Waiver of use and enjoyment of the Common Area or abandonment
of a Condominium by an Owner shall not exempt such Owner from personal liability for
Assessments duly levied by the Association,nor release such Owner's Condominium from the liens
and charges thereof.
7.5 ASSESSMENTS.
7.5.l Creation of Obligation for Assessments. The Declarant, for each Unit owned by it
within the Project, hereby covenants, and each Owner of a Unit in the Project by acceptance of a
deed therefor, is deemed to covenant and agree to pay to the Association those Regular Monthly
Assessments, Special Assessments,and Individual Assessments described more specifically in this
Article 7.
All fines and Assessments provided for by [his Declaration, together with such interest
thereon and the costs of the collection thereof shall be a charge on the Unit against which each
Assessment is made, which lien shall be created and enforced in accordance with the provisions of
this Article 7. Each Assessment against a Unit shall further he the joint and several personal
obligation of each person who was an Owner of such Unit at the time when such Assessment fell
due.
�y
7.5.2 Regular Monthly Assessment. The Regular Monthly Assessment levied by the
Association pursuant to this Article 7 shall be used by the Association to discharge the duties of the
Association to maintain, repair, restore and replace certain improvements to the Units and to the
Common Area as prescribed by Section 2.1 of this Declaration, including the establishment of
necessary reserves for such purposes; to perform administrative and managerial duties of the
Association,including,without limitation,property management and preparation of financial reports
and tax returns,to promote the Project and the businesses located therein;and promote the safety of
the Owners, occupants and business invitees, all to the extent provided in this Declaration.
7.5.3 Establishment of Assessment. The first day of the calendar month immediately
following the date of the recordation of this Declaration in the County Records shall be hereinafter
referred to as the"Initiation Date". Not less than sixty(60)days prior to the beginning ofeach fiscal
year of the Association, as defined in the Bylaws (the"Fiscal Year"),following the Initiation Date,
the Board shall meet for the purpose of establishing the Regular Monthly Assessment for the
forthcoming Fiscal Year. At such meeting the Board shall review the expenses incurred by the
Association for its operations for the preceding Fiscal Year, any written comments received from
Members and Mortgagees,and such other related information that has been made available to the
Board. After making any adjustments that the Board considers appropriate,the Board,subject to any
restrictions contained in this Declaration, shall establish the Regular Monthly Assessment for the
forthcoming Fiscal Year. The Board shall prepare a pro forma statement setting forth said Regular
Monthly Assessment(the "Statement").
The Statement shall be distributed to each Member of the Association not less than.forty-five
(45)days nor more than sixty(60)days before the commencement of the Fiscal Year. The amount
of the pro forma statement shall constitute the Regular Monthly Assessment forsuch year,and each
Unit in the Project shall be assessed for its share of the Assessment as determined by the provisions
of Section 7.5 of this Declaration.
7.5.4 Decrease or Increase in Assessment. The Regular Monthly Assessment may be
decreased or increased by the Board without the vote of Owncrs connrncncing January 1 of each
Fiscal Year following the Initiation Date (with respect to the Regular Monthly Assessment).
7.5.5 Certificate of Payment. The Association shall upon demand, furnish to any Owner
liable for any Assessment a certificate in writing signed by an officer of the Association,setting forth
whether the Assessments on a specified Unit have been paid, and the amount or the delinquency, if
any. A charge of$25.00 per certificate maybe made by the Board for the issuance of the certificate.
Such certificate shall be conclusive evidence of payment of any Assessment therein stated to have
been paid.
7,5.6 S1ecial Assessment, Subject to the restrictions described herein,the Association may
levy a Special Assessment if the Association, in its discretion, determines that the available funds
through Regular Monthly Assessments are orwill 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 but not limited to, unanticipated delinquencies, costs of construction.
32
unexpected repairs or replacements of capital Improvements which the Association is to repair or
replace,restoration ofthe Common Area,or otherwise. The Association shall determine the amount
necessary to meet the estimated expenses, and if the amount is approved by a vote of the Owners
representing at least sixty-six and_ two-thirds percent (55 213%) of the voting power of the
Association,it shall become a Special Assessment. The Association,in its discretion,may levy the
entire Assessment immediately or levy it in installments over a period it considers appropriate.
7.5.7 Individual Assessments. Each Unit and the Owner thereof shall also be assessed for
all damages to which its Owner is subject as the result of a violation of the terms of this Declaration
or for any damage caused to any improvements in the Project which the Association is to maintain
pursuant to this Declaration,and for any other indebtedness or other obligation of the Owner to the
Association. Notice of all Individual Assessments shall be given by the Association to the Owner
of each Unit assessed within fifteen[[5)days following the adoption of the Individual Assessments.
Individual Assessments shal l be due and payable upon receipt of such notice.
7.5.8 Rate of Regular Monthly and Special Assessments. Subject to the provisions of Section
7.5 of this Declaration,Regular Monthly Assessments and Special Assessments shall be apportioned
among all of the Units and Combined Units in the Condominium Building based upon the
"Percentage Share"of the total Assessments allocated to each Unit or Combined Units,as set forth
on Exhibit B to this Declaration.
The Association may change the apportionment of Assessments from time-to-time during
each Fiscal Year to reflect the number andlor configuration of Combined Units, if any,during such
year. The reapportionment, if made, shall be so that the Assessment payments falling due for the
remaining part of the Fiscal Year are allocated among the Units and Combined Units in proportion
to the actual square footage of the Boor area of each Unit and Combined Units at the time of
reapportionment.
7.5.9 Commencement of Assessments. The Regular Monthly Assessment shall commence
on the first day of the first calendar month immediately following the recordation of the first deed
to a Unit in the Project to an Owner other than Declarant.
7.5.1 p Allocation of Assessment Funds.
(a)The Board shall segregate all Regular Monthly Assessments from all Special Assessments
as to the purpose for which they were assessed. Following such segregation, such finds shall be
transferred and held in trust by the Board in a regular operating and regular capital reserve account.
All checks,drafts,withdrawals and other instruments obligating the Association to pay money shall
be signed on behalf of the Association by any two(2) officers or by the Board's designated agent.
(b)All Special Assessments shall be used by the Board for the purpose or purposes for which
the Assessment was levied.
33
(c)All Individual Assessments shall be segregated by the Association as to the purpose for
which they collected and following such segregation,the funds shall be used by the Association to
discharge the costs and expenses of such purpose of purposes.
7.6 EFFECT OF NONPAYMENT OF ASSESSMENTS. Every Owner, including
Declarant, shall be deemed to covenant and agree to pay the Assessments provided for in this
Declaration,and further agree to the enforcement of such Assessments in the manner provided for
in this Section 7.6.
7.6.1 Delinquency.
(a) Any Assessment provided for in this Declaration that is not paid shall become delinquent
fifteen(15)days after it becomes due. If an Assessment is delinquent,the Association may recover
all of the following:
(1) Reasonable costs incurred in collecting the delinquent Assessment,including
reasonable attorney's fees;
(2) A late charge not exceeding ten percent(10%)of the delinquent Assessment
or ten dollars ($10.00), whichever is greater;and,
(3) Interest on all sums imposed by this Section 7.6.1, including the delinquent
Assessment, reasonable costs of collection (including attorney's tees) and late charge, shall bear
interest at the maximum rate permitted by law, commending thirty (30) days after the delinquent
Assessment became due.
7.6.2 Enforcement; Remedies.
(a) Statement of Charges. At least thirty (30) days prior to the Association recording an
Assessment Lien upon a Unit pursuant to California Civil Code §6812, the Association shall notify
the Owner of record in writing by certified mail of the following:
(1) A general description of the collection and lien enforcement procedures of the
Association and the method of calculation of the amount owed,a statement that the Owner has the
right to inspect the Association's records,pursuant to California Corporations Code§ 8333,and the
following statement in 14-point boldface type, if printed, or in capital letters, if typed:
"1MPORTANT NOTICE: 1F YOUR SEPARATE fNTERES-T' IS PLACED IN FORECLOSURE
BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUT
COURT ACTION".
(2)An itemized statement of the charges owed by the Owner, including items on the
staterrieiit which indicate the amount of any delinquent Assessments, the fees and reasonable costs
of collection, reasonable attorney's fees, any late charges, and interest, if any.
34
(3) A statement that the Owner shall not be liable to pay the charges, interest, and
costs of collection, if it is determined the Assessment was paid on time to the Association.
Any payments made by the Owner toward the debt shall first be applied to the Assessments
owed,and,only after the Assessments owed arc paid in full shall the payments be applied to the fees
and costs of collection,attorneys' fees,Iate 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 persons who received it. The Association shall provide a retailing address
far overnight payment of Assessments(California Civil Code § 6810),
Monetary penalties described in California Civil Code § 6824(b) may not become a lien
against Owner's Condominium Unit enforceable by saleof the Condominium Unit underCivil Code
§§ 2924,2924b and 2924c.
(b) Right to Request Meetin . An Owner may dispute the debt noticed pursuant to Section
7.6.2(a)herein above, submitting to the Board a written explanation of the reasons for his/her/their
dispute. The Board shall respond in writing to the Owner within fifteen(15)days of the date of the
postmark of the explanation if the explanation is mailed within fifteen(15)days of the postmark of
the notice. The Owner may submit a written request to meet with the Board to discuss a payment
plan for the debt noticed pursuant to Section 7.6.2(a) herein above. The Board shall provide the
Owner the standards for payment plans, if any exist. The Board shall meet with the Owner in
executive session within forty-five(45)days of the postmark of the request, if the request is mailed
within the fifteen (15) days of the date of the postmark of the notice, unless there is no regularly
scheduled Board meeting within that period, in which case the Board may designate a committee of
one or more Mernbcrs to meet with the Owner,
(c) Notice of Delinquent Assessment, After compliance with the provisions of California
Civil Code § 6812, the Association may record a Notice of Delinquent Assessment and establish
an Assessment Lien against the Unit of the delinquent Owner prior and superior to all other liens
recorded subsequent to the Notice of Delinquent Assessment, except (i) all taxes, bonds,
Assessments and other levies which, by law,would be superior thereto,and(ii) the lien or charge
of any Mortgage of record recorded prior to the Notice of Delinquent Assessment. The Notice of
Delinquent Assessment shall state the amount of the Assessment, collection costs, attorneys' fees,
late charges and interest,a description of the Unit against which the Assessment and other sums are
levied, the name of the record Owner, and the name and address of the trustee authorized by the
Association to enforce the lien by sale. The notice shall be signed by any officer of the Association
or any management agency retained by the Association and shall be mailed in the manner set forth
in California Civil Code § 2924b to all record Owners of the Unit no later than ten (10)days after
recordation.
Within twenty-one(21)days after payment of the sums specified in the Notice of Delinquent
Assessment, the Association shall record or cause to be recorded in the Office of the County
Recorder in which the Notice of Delinquent Assessment is recorded a lien release or notice of
35
rescission ("Notice of Release and Satisfaction") and provide the Owner a copy of the lien release
or notice that the delinquent Assessment has been satisfied.
(d) Enforcement of Assessment Lien. Thirty (30) days following the recordation of the
Notice of Delinquent Assessment,the Assessment Lien may be enforced in any manner permitted
by law, including sale by the court, sale by the trustee designated in the Notice of Delinquent
Assessment,or sale by a trustee substituted pursuant to California Civil Code § 2934(a). Any sale
by the trustee shall be conducted in accordance with the provisions of§§S 2924, 2924b, 2924c,
2924f, 2924g, 2924h and 2924j of the Civil Code applicable to the exercise of powers of sale in
mortgages and deeds of trust, including any successor statutes thereto, or in any other manner
permitted by law. The fees of a trustee may not exceed the amounts prescribed in Civil Code §§
2924c and 2924d. Nothing in this Declaration shall preclude the Association from bringingan action
directly against an Owner for breach of the personal obligation to pay Assessments.
A monetary charge imposed by the Association as a means of reimbursing the Association
for costs incurred by the Association in the repair of damage to the Common Area and facilities
caused by a Member or the Member's guest or tenant may become a lien against the Member's Unit
enforceable by the sale of the Unit under California Civil Code §§ 2924, 2924b, and 2924c.
A monetary penalty imposed by the Association as a disciplinary measure for failure of
Member to comply with this Declaration, the Bylaws and Rules and Regulations or Ground Lease,
except for the late payments,may neitherbe characterized nor treated in this Declaration,the Bylaws
and Rules and Regulations as an assessment that may become a lien against the Member's Unit
enforceable by the sale of the Unit under California Civil Code §§ 2924, 2924b and 2924c.
The Association, acting on behalf of tlae Owners,shall have the power to bid for the Unit at
foreclosure sale, and to acquire and hold, lease, mortgage and convey the Unit. During the period
a Unit is owned by the Association, following foreclosure:(1) no right to vote shall be exercises on
behal,fof the Unit: (2)no Assessment shall be assessed orlevied on the Unit:and(3)each other Unit
shall be charged, in addition to its usual Assessment its share of the .Assessment that would have
been charged to such Unit had it not been acquired by the Association as a result of foreclosure.
After acquiring title to the: Unit at foreclosure sale, following notice and publication, the
Association may execute, acknowledge and record a deed conveying title to the Unit which deed
shall be binding upon the Owners,successors, and all other parties.
The Board may temporarily suspend the voting rights and right to use any facilities located
within the Common Area of an Owner who is in default in payment of any Assessment,after notice
and hearing,as provided in the Bylaws.
7.6.3 Curing of Default. Upon the timely payment, or other satisfaction,of all delinquent
Assessments, late charges, interest and attorney's fees, if any, included within the Notice of
Delinquent Assessments recorded with respect to a Unit in accordance with Section 7.6 of this
Declaration, the Board shall cause to be filed and recorded a further notice stating the satisfaction
from the release of the lien created by the Notice of Delinquent Assessments. Concurrently, the
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Association's fees and charges for the preparation of the Notice of Delinquent Assessment and
preparation of the Notice of Release and Satisfaction are estimated to be $75.00 each. The
aforementioned sum shall be paid to the Association prior to the execution, filing and recordation
of such Notice of Release and Satisfaction by the Board. The estimated fees and charges set forth
in this Section 7.6.3 are subject to change. For the purposes of this Section 7.6.3 and the provisions
of Section 7.6.2{b} of this Declaration, the term "costs" shall include costs and expenses actually
incurred or expended by the Association in connection with the cost of preparation and recordation
of the Notice o f Delinquent Assessments and in efforts to collect the delinquent Assessment secured
by the licn created by the Notice of Delinquent Assessments,and shall also include a reasonable sum
for attorney fees actually incurred. There shall be a late charge not excccding ten percent(10%)of
the delinquent Assessment,or$10,00,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 charges imposed
on prior delinquent payments. Interest also shall accrue on any delinquent payment at the maximum
rate allowed bylaw,commencing thirty(30)days after the Assessment becomes due until the same
is paid. Any payments toward the above debt shall first be applied to the principal sums owed, and
only after the principal owed is paid in full shall such payments be applied to interest or collection
expenses.
7.6.4 Additional Costs Secured by lien. In the event the lien created by Section 7.6.2(b)of
this Article 7 is foreclosed judicially by action in court,reasonable attorney fees and court costs as
the court may award, title search fees, interest and late charges as provided by Section 7.6.2 of this
Declaration and all other costs and expenses shall be allowed to the extent permitted by law.
7.6.5 Notice of Intention to File Lien. Notwithstanding anything contained in this
Declaration,before the Association may place a lien upon a Unit to collect a debt which is past due
under this Article 7,the Association shall notify the Owner in writing by certi f ied mail of the fee and
penalty procedures of the Association,provide an itemized statement of the charges owned by the
Owner,including items on the statement which indicate the principal owed,any late charges and the
method of calculation, and attorney fees, and the collection practices used by the Association,
including the right of the Association to the reasonable costs of collection.
END OF ARTICLE 7
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ARTICLE 8
INSURANCE
8.1 DUTY TO OBTAIN INSURANCE; TYPES. The Association shall obtain and keep in
effect at all times the following insurance coverages. (NOTE: Insurance provisions should be
reviewed by an experienced Association insurance provider to adjust to then current industry
standards and requirements.)
8.1.1 Commercial General Liability. A policy of commercial general liability insurance
(including coverage for medical payments),insuring the Association and the Owners against liability
for bodily injury, death and property damage arising from or relating to the ownership or use of the
Common Area. Such policy shall specify amounts and include protection from liability and risks as
are customarily covered in similar condominium developments in the area of the Project, and shall
include a severabil ity of interest endorsement or the equivalent which shall preclude the insurer from
denying the claim of an Owner because of negligent acts or omissions of other Owners, or the
Association or the Association's officers and directors acting in their capacity as officers and
directors. The Association's policies shall at all times specify limits no less than the minimum
amounts required by California Civil Code §6$44.
8.1.2 Fire and Casualty insurance. A "master" or "blanket" policy of fire and casualty
insurance with extended coverage, special form, in an amount as near as possible to the full
replacement value of all insurable Improvements on the Common Area, Condominium Building
service equipment and supplies, and other personal property belonging to the Association without
deduction for depreciation, and including costs attributable to changes in laws and costs of
excavation,footings and foundations below the lowest floor.The casualty insurance steal 1 not include
earthquake coverage unless the Board is directed to obtain earthquake coverage by a maj ority of the
Association's voting power.
8.1.3 Fidelity Insurance. Fidelity insurance coverage for any Person handling funds of the
Association,whether or not such Persons are compensated for their services, in an amount not less
than the estimated maximum of funds, including Reserve Funds, in the custody of the Person during
the term of the insurance.
8.1.4 Other Insurance. Such other insurance insuring other risks customarily insured by
associations managing condominium projects similar in construction, location, and use, including
director's and officer's errors and omissions insurance in such amounts as may be deemed
reasonable or appropriate by the Board.
8.1.5 Automobile. With respect to the parking areas only, the Association shall obtain
Automobile Liability Insurance in such reasonable coverage amounts as are determined by the Board,
covering legal liability for loss to automobiles or automobile equipment left in the care of the
Association.
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8.2 GENERAL PROVISIONS.
8.2.1 Beneficiaries. The Association's insurance shall be kept for the benefit of the
Association,the Owners and the Mortgagees,as their interests may appear,subject to loss payment
requirements established in this Declaration.
8.2.2 Periodic Review. The Board shall periodically review the Association's insurance
policies to determine the adequacy of coverage and to adjust the policies accordingly.
8.2.3 Other Policy Requirements. The Board shall make every reasonable effort to secure
insurance policies providing for the following:
(a) a waiver of subrogation by the insurer as to any claims against the Board, the Manager,
the Owners and their respective Permittees;
(b) that the policy will be primary,even if an Owner has other insurance which covers the
same loss, and waiving any defense based on co-insurance;
(c)an agreed amount endorsement, if the policy contains a co-insurance clause;
(d) guaranteed replacement cost or replacement cost endorsement; and
(e) an inflation guard endorsement.
8.2.4 Delivery of Policies. Duplicate originals or certificates of all policies of fire and
casualty insurance kept by tate Association and of all renewals thereof, together with proof of
payment of premiums, shall be delivered by the Association to all Owners and Mortgagees who
requested them in writing.
8.2.5 Notice of Expiration Requirements. If available, each of the Association's insurance
policies must contain a provision that the policy may not be canceled, terminated, materially
modified or allowed to expire by its terms,without at least ten(10)days' prior written notice to the
Board, and to each Owner, Mortgagee and other Person who has filed a written request with the
carrier for such notice. In addition, fidelity insurance shall provide that it may not be canceled or
substantially modified without at [cast ten (10)days' prior written notice to any insurance trustee
named pursuant to Section 8.2.6 herein below.
8.2.6 Trustee for policies. The Association is trustee of the interests of al l named insureds
under the Association's insurance policies and the Board has the exclusive authority to negotiate loss
settlements with insurance carriers;provided that no Mortgagee having an interest in such loss may
be prohibited from participating in settlement negotiations. A representative chosen by the Board
may be named as an insured, including a trustee with whom the Association may enter into an
insurance trust agreement and any successor to such trustee, who shall have exclusive authority to
negotiate losses under any insurance policy and to perform such other functions necessary to
accomplish this purpose.
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8.3 RIGHT AND DUTY OF OWNERS TO INSURE. Each Owner is responsible for insuring
his/her personal property and all other property and Improvements in his/her Unit for which the
Association has not purchased insurance in accordance with this Declaration. Nothing in this
Declaration precludes any Owner from carrying any additional insurance as such Owner considers
desirable;however,Owners' policies may not adversely affect or diminish any coverage under any
of the Association's insurance policies. Duplicate copies of Owners' insurance policies shall be
deposited with the Association on request. If any loss intended to be covered by the Association's
insurance occurs and the proceeds payable are reduced due to insurance carried by any Owner,such
Owner shall assign the proceeds of the Owner's insurance to the Association,to the extent of such
reduction, for application to the same purposes as the reduced proceeds are to be applied_ Without
limiting the foregoing,each Owner shall maintain the insurance set forth in Exhibit C attached to
this Declaration,with a single insurance carrier approved by the Association pursuant to Section 8.5
herein below.
8.4 OWNER INDEMNITY. In addition to any other indemnity obligations set forth
elsewhere in this Declaration, each Owner (the "Indemnifying Owner") shall protect, indemnify,
defend, and hold Declarant, each other Owner and the Association, and each of their respective
members,managers,partners,directors,officers,employees,shareholder,agents,lenders,successors
and assigns harmless from and against all claims, expenses, liabilities, loss, damage, and costs,
including reasonable attorney fees,arising as a result(directly or indirectly)of or in connection with
(a)any accident,injury, loss,or damage to any Person or loss or damage to the Project occurring on
(or resulting from acts committed on)the Indemnifying Owner's Unit, (b) use of the Unit or the
Project by the Indemnifying Owner or its Pennittees, (c) the conduct of any business or work or
things done, permitted or suffered in or about the Indemnifying Owner's Unit or the Project by
Permittees of the Indemnifying Owner's Unit, and (d) the Indemnifying Owner's breach of this
Declaration. provided, however(i) no Person shall be entitled to indemnification for any damage
arising from such Person's gross negligence or willful misconduct or the gross negligence or willful
misconduct of such Person's Permittees, and (ii) the Association, Declarant and each Owner, for
themselves and their respective Permittees,waive any right of recovery against the other Owners and
their Permittees for any loss, damage, or injury to the extent the loss, damage or injury is actually
covered by insurance.
8.5 APPROVED INSURANCE CARRIER, All insurance policics and insurance coverages
which the Association and individual Owners arc required to obtain and maintain pursuant to this
Article 8,as well as all insurance policies and insurance coverages obtained and maintained by any
tenants of Owner's occupying Units in the Condominium Building, shall be through a single
insurance carrier approved by and with limits of coverage acceptable to the Association.
END OF ARTICLE 8
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ARTICLE 9
DESTRUCTION OF IMPROVEMENTS
9.1 RESTORATION OF THE COMMON AREA. If all or any portion of the Common Area
is damaged or destroyed, subject to receipt of insurance proceeds and the proportionate share for
insurance expenses of any shortfall from the other Owners as provided herein below,the Association
shall repair or reconstruct all of the Improvements within the Project so damaged or destroyed,
excluding any interior Improvements within the Units not required to be maintained by the
Association. The Association shall cause such Improvements to be repaired or reconstructed
substantially in accordance with the original"as-built"plans and specifications,modified(a)as may
be required by applicable building codes and regulations in effect at the time,and(b)subject to any
alterations as may be approved by the Approving Authority and at least sixty-six and two-thirds
percent6( 6 2l31/6) of the total voting power of the Association. The Board shall prepare or obtain
the documents necessary for commencing such reconstruction as promptly as practical.
9.1.1 Insurance Shortfall. If insurance proceeds are not sufficient to fund at least eighty-five
percent(85%)of the estimated cost of restoration and repair,and the Board is unable to supplement
the insurance proceeds by borrowing on behalf of the Association sufficient monies to enable the
improvements to be substantially repaired or reconstructed within a reasonable time,the Board shall
levy a Special Assessment to provide the additional funds necessary for such reconstruction;
provided, however, any Special Assessment exceeding five percent (5%) of the budgeted or
anticipated Common Expenses of the Association for the twelve(12)-month period immediately
fol lowing the month in which the destruction occurred(not including any costs of restoration),must
be approved by at least a majority of the total voting power of the Association.The Board shall give
written notice to each Owner stating the gross amount of such insurance shortfall and the amount
thereof allocated to each Unit as a Special Assessment.Each Owner shall pay such Owner's Special
Assessment witihin ninety (94)days after such notice is given. If repair costs increase or there is a
reduction in the amount of insurance proceeds, then the Board shall levy an additional Special
Assessment, which shall be payable within ninety(90)days after notice of such additional Special
Assessment is given. The Board may elect to allow Special Assessments to be paid in installments
over such period of time as the Board deems appropriate.
9.1.2 Noncovered Casualty. If the Common Area is damaged or destroyed by a casualty not
required to be insured against under the Association's insurance policies as required in this
Declaration,and such casualty is in fact not insured against under the Association's insurance,the
Board shall diligently determine the estimated cost of repair and give written notice to each Owner
stating each Owner's proportionate shave of such cost.Unless sixty-six and two-thirds percent(66
213%) of the total voting power of the Association elect to repair the damage only to the extent
necessary to render the Improvements safe,the Association shall levya Special Assessment against
each Unit in the amount of such cost allocable to such Unit,and each Owner shall pay such Owner's
Special Assessment within ninety(90)days after notice of the Special Assessment is given, unless
other payment arrangements are approved by the Board. if the Owners elect to repair the damage
41
only to the extent necessary to render the Improvements safe, the Association shall diligently
determine the cost of such repairs, and shall levy a Special Assessment against each Unit in the
amount of such cost allocable to such Unit, and each Owner shall pay such Special Assessment
within ninety(90)days after notice of the Special Assessment is given. In either case, 'If the repair
cost increases,then the Board shall give the Owners written notice of the increase,and shall levy an
additional Special Assessment,which shall be payable within ninety(90)days after such notice is
given unless other payment arrangements are approved by the Board.
9.2 SALE OF PROJECT AND RIGHT TO PARTITION. No Owner shall have the right to
partition of the Owner's interest in his/her Condominium and there shall be no judicial partition of
the Project,or any part thereof,except as provided in California Civil Code §6656.For purposes of
Civil Code§6656(b)(4),partition may occur only if all ofthe following conditions are satisfied: (a)
within six(6) months after the date on which destruction occurred, the Special Assessment has not
been approved by the members,as provided in Section 9.1 herein above, or(b)within twelve(l 2)
months after the date on which destruction occurred, restoration or repair has not actually
commenced for any reason other than causes beyond the reasonable control of the Association. In
such event, the Association shall prepare, execute and Record, as promptly as practical, the
certificate stating that a majority of the Board may properly exercise an irrevocable power of attorney
to sell the Project for the benefit of the Owners and execute such other documents and instruments
as may be necessary for the Association to consummate the sale of the Project at the highest and best
price obtainable,either in its damaged condition,or after damaged structures have been razed. Such
certificate shall be conclusive evidence of such authority for any Person relying thereon in good
faith. The net proceeds of such sale and the proceeds of any insurance carried by the Association
shall be divided proportionately among the Owners,such proportions to be determined in accordance
with the Percentage Share of the total Assessments allocated to such Condominium on Exhibit B
hereto. Provided, however, the balance then due on any valid Mortgage shall be first paid in order
of priority before the distribution of any proceeds to an Owner whose Condominium is so
encumbered. Nothing in this Declaration prevents partition of a co-tenancy in any Condominium.
Except as provided in this Section 9.2,each Owner and the successors of each Owner,whether by
deed, gift,devise,or by operation of law, for their own benefit and for the Condominiums and for
the benefit of all other Owners, specifically waive and abandon all rights, interests and causes of
action for a judicial partition of the tenancy in common ownership of the Project and do further
covenant that no action for such judicial partition shall be instituted, prosecuted or reduced to
judgment.
9.3 INTERIOR DAMAGE. Except for any casualty or damage covered by insurance
maintained by the Association, restoration and repair of any damage to the interior of any Unit,
including all fixtures and Improvements therein, together with restoration and repair of all interior
paint, wall coverings and floor coverings, must be made by and at the individual expense of the
Owner of the Unit. Such interior repair and restoration shall be completed as promptly as practical,
in a lawful and workmanlike manner and otherwise as provided in this Declaration.
END OF ARTICLE 9
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ARTICLE 10
EMINENT DOMAIN
The term"taking"as used in this Article 10 means inverse condemnation by exercise of the
power of eminent domain or by sale under threat of the exercise of the power of eminent domain.
The Board shall represent the Owners in any proceedings, negotiations, settlements,or agreements
regarding takings. All takings proceeds shall be payable to the Association for the benefit of the
Owners and their Mortgagees.
10.1 RIGHTS OF MORTGAGEES. Nothing herein contained shall be deemed to prohibit
any Mortgagee from participating in any eminent domain proceedings on behalfof or in conjunction
with any Owner on whose Condominium it has a Mortgage, provided such participation does not
reduce the award to any other Owners or the Association,or alter the application thereof as provided
herein below.
10.2 RECONSTRUCTION ON CONDEMNATION.Subject to the provisions of this Article
10, and to the extent economically feasible based upon the extent of the condemnation, the
Association and each Owner shall be obligated to reconstruct the Improvements in the event of a
condemnation in the same manner and to the same extent and same standard as would be required
pursuant to Article 9 of this Declaration if the condemnation were a casualty and the award were
insurance proceeds. If the Association or an Owner is not required to reconstruct all or any portion
of the Improvements for which the Association or such Owner is responsible, the Association or
such Owner,as applicable,shall clear such Improvements or the affected portion thereof.Any award
shall be applied to the restoration or razing required pursuant to this Section 10.2, and any excess
shall be distributed to the Owners and Mortgagees as provided in their respective Mortgages.
END OF ARTICLE 10
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ARTICLE i I
RIGHTS OF MORTGAGEES
11.1 GENERAL PROTECTIONS. No amendment or violation of this Declaration defeats
or renders invalid the rights of the Mortgagee under any Mortgage encumbering a Condominium
made in good faith and for value, provided that after the foreclosure of any such Mortgage, the
foreclosed Condominium will remain subject to this Declaration_ Any Mortgagee, upon filing a
written request with the Association identifying the Condominium encumbered by the Mortgage,
shall be entitled to receive written notification from the Association of(a) any condemnation or
casualty loss that affects the encumbered Condominium or a material portion of the Project, (b)any
lapse, cancellation or material modification of any policy of insurance maintained by the
Association,or(e)any delinquency of sixty(60)days or more in the performance of any obligation
under the Governing Documents by the Owner of the encumbered Condominium.
11.2 MORTGAGEE CURE RIGHTS. A Mortgagee may jointly or singly pay any
Assessments or installments thereof which are in default and take any action reasonably necessary
to cure any other default of its Mortgagor under the Governing Documents with the same effect as
such cure by such Mortgagor itself. Any Mortgagee of a Mortgage having first priority over other
Mortgages on a Condominium may,jointlyor singly,pay taxes,assessments orother charges which
are in default and which may or have become a charge against any portion of the Common Area and
may pay any overdue premiums on hazard insurance policies, or secure new hazard insurance
coverage on the lapse ofa policy,for the Common Area,and First Mortgagees making such payments
shall be owed immediate reimbursement therefor from the Association.
11.3 UNPAID ASSESSMENTS. If the Mortgagee of Condominium obtains fee title to the
Condominium by foreclosure of the Mortgage, then the Mortgagee shall take title to the
Condominium free and clear of any claims for unpaid Assessments levied or accrued against the
Condominium before the date on which the Mortgagca acquired title to the Condominium, except
for Assessment liens Recorded before the Mortgage.
END OF ARTICLE I I
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ARTICLE 12
ENFORCEMENT AND DISPUTE RESOLUTION
12.1 ENFORCEMENT OF GOVERNING DOCUMENTS. All violations of or disputes
relating to the Governing, Documents, except for those governed by Section 12.2 herein below or
subject to California Civil Code §§§'6874-6876, shall be resolved as follows:
12.1.1 Violations Identified by the Association, If the Board or the Approving Authority
determines that there is a violation of the Governing Documents, other than nonpayment of any
Assessment, then the Board shall give written notice to the responsible Owner identifying (a)the
condition or violation complained of, and (b) the length of time the Owner has to remedy the
violation including,if appropriate,the length of time the Owner has to submi t plans to the Approving
Authority and the length of time the Owner has to complete the work proposed in such plans. This
requirement shall apply notwithstanding the fact that this Declaration may duplicate City ordinances
or regulations. if an Owner does not perform corrective action within the allotted time, the Board,
after Notice and Hearing, may remedy such condition or violation complained of, and the cost
thereof shall be charged to the Owner as an Individual Assessment. If the violation involves
nonpayment of any Assessment, then the Board may collect such delinquent Assessment pursuant
to the procedures established in Section 12.2 herein below.
12.1.2 Violations Identified by an Owner.Ifan Owner alleges that another Person isviolating
the Governing Documents(other than nonpayment ofany Assessment),the complaining Owner must
first submit the matter to the Board far Notice and Hearing before the complaining Owner may resort
to litigation for relief:
12.1.3 Remedies. Failure to comply with any of the terms of the Governing Documents by
any Person is grounds for relief which may include an action to recover damages, injunctive relief,
foreclosure of any lien,or any combination thereof,however,the procedures established in Sections
12,1.1 and i 2.1.2 herein above must Firs(be followed,if they apply.The Board may adopt a schedule
of reasonable fines or penalties which the Board may assess against a Person for the failure of such
Person to comply with the Governing Documents_ Such fines or penalties may only be assessed
under California Civil Code§68SO.The Association may use any legal remedy necessary to enforce
the Declaration, Bylaws, or the Rules and Regulations. The Association is entitled to collect li-oin
a noncomplying Owner ali legal costs,legal fees,and corrective costs incurred in bringing the owner
or property into compliance with the Declaration, the Bylaws,and the Rules and Regulations.
12.1.4 No Waiver. Failure by the Association or by any Owner to enforce any provision of
the Governing Documents does not waive the right to enforce that provision, or any other provision
of the Governing Docunients.
12.1.5 Limit on Expenditures.The Association may not incur litigation expenses, including
attorneys'fees,orborrow money to fund litigation,where the Association initiates legal proceedings
or is joined as a plaintiff in legal proceedings, unless the Association first obtains the consent of a
45
majority of the total voting power of the Association(excluding the voting power of any Owner who
would be a defendant in such proceedings) and, if applicable, complies with the requirements of
California Civil Code §§6870--6876. Such approval is not necessary if the legal proceedings are
initiated (a) to enforce the use restrictions contained in Article 2 of this Declaration of this
Declaration or in the Association's Rules and Regulations,(b)to enforce the architectural provisions
contained in Article 5 of this Declaration, (c)to collect any unpaid Assessments levied pursuant to
the Governing Documents, (d) for a claim the total value of which is less than Fifty Thousand
Dollars($50,000),or(c)as across-complaint in litigation to which the Association is already party.
12.2 DELINQUENT ASSESSMENTS.
12.2.1 Dcllinguencyuency.-Assessmentsare delinquent ifnot paid within fifteen(15)days after the
due date established by the Association.Commencing thirty(30)days after the due date,delinquent
Assessments plus all reasonable costs of collection(including attorneys' fees)and late charges bear
interest until paid at the maximum rate permitted by law.The Association need not accept any tender
of a partial payment of an Assessment and all costs and attorneys' fees attributable thereto.
Acceptance of any such tender does not waive the Association's right to demand and receive full
payment.
12.2.2 Lien Rte. At least thirty (30) days before Recording a lien on an Owner's
Condominium to collect a past due Assessment, the Association shall send written-notice to the
Owner pursuant to California Civil Code §6812. Monetary penalties described in Civil Code
§6824(b) may not become a lien against an Owner's Condominium enforceable by the sale of the
Condominium under Civil Code §§2924, 2924b,and 2924c.
12.3 ASSOCIATION OWNERSHIP OF UNITS. The Association shall have the power to
bid at a foreclosure sale for any Condominium in the Project, and to acquire and hold, lease,
mortgage and convey the same. Where the purchase of a Condominium at a foreclosure sale will
result in a five percent(5%)or greater increase in Annual Assessments,the purchase shall require
the vote or written consent of a majority of the total voting power of the Association. During the
period a Condominium is owned by the Association,(a)no rightto vote shall be exercised on behalf
of the Condominium, and (b) the Board may waive the levy of Assessments against the
Condominium,and if so waived,each other Condominium shall be charged, in addition to its usual
Assessment,its prorata shareofthe Assessment that would have been charged to such Condominium
had it not been acquired by the Association as a result of foreclosure.
12.4 -DISPUTES WITH DECLARANT PARTIES. The following dispute resolution
procedure is implemented for the Project with the intent to avoid costly and potentially lengthy
traditional court proceedings. Any dispute between the Association, the Owners, or the Declarant,
or any director, officer, partner, shareholder, member, employee, representative, contractor,
subcontractor, design professional or agent of the Declarant (each, a "Declarant Party," and
collectively the "Declarant Parties") is a "Dispute' that shall be resolved in accordance with the
alternative dispute resolution procedures set forth in this Section 12.4.
46
SO
12.4.1 Notice.Any Person with a Dispute shall give written notice of the Dispute by personal
or mail service as authorized by California Code of Civil Procedure §415.10, §415.20, §415.21,
§415.30, or §415.40 to the party to whom the Dispute is directed ("Respondent") describing the
nature of the Dispute and any proposed remedy(the "Dispute Notice").
12.4.2 Right to Inspect and Correct.Commencing on the date the Dispute Notice is delivered
to the Respondent and continuing until the Dispute is resolved, the Respondent and its
representatives have the right to(a)meet with the party alleging the Dispute ata reasonable time and
place to discuss the Dispute,(b)enter the Project to inspect any areas that are subject to the Dispute,
and (c) conduct inspections and testing (including destructive or invasive testing) in a manner
deemed appropriate by the Respondent. If .Respondent elects to take any corrective action,
Respondent and its representatives shall be provided full access to the Project to take and complete
the corrective action. Respondent is not obligated to take any corrective action. Respondent, with
the consent of Declarant, has the right to select the corrective action Respondent believes is
appropriate.The right to inspect and correct granted in this Section is in addition to the rights granted
inCalifomiaCivil Code§§687()-6$76,thcproceduresof which maybe implemented before,during
or after the procedure in this Section is implemented.
12.43 Mediation.If the Dispute is not resolved within ninety(90)days after the Respondent
receives the Dispute Notice,any party may submit the Dispute to mediation by delivering a request
for mediation (a "Mediation Notice") in the same manner as allowed for delivery of the Dispute
Notice,The Dispute shall be mediated pursuant to(a)the Judicial Arbitration and Mediation Service
("JAMS") mediation procedures in existence when the Dispute Notice is delivered,as modified by
this Section, or (b) the mediation procedures of any successor to JAMS in existence when the
Dispute Notice is delivered,as modified by this Section,or(c) mediation procedures approved by
the parties of any entity offering mediation services that are acceptable to the parties to the Dispute
(each,a "Party"and collectively, the"Parties"). Except as provided in Section 12.4.6 herein below,
no Person shall begin litigation regarding a Dispute without complying with this Section 12.4.3.
(a)Selection of Mediator.The mediator shall be selected within sixty(60)days afterdelivery
of the Mediation Notice. The mediator shall be selected by mutual agreement of the Parties. If the
Parties cannot agree on a mediator, the mediator shall be selected by the entity providing the
mediation service. No Person shall serve as a mediator in any Dispute in which the Person has any
financial or personal interest in the result of the mediation, except by the written consent of all
Parties.Before accepting any appointment,the prospective mediator shall disclose any circumstances
likely to create a presumption of bias or to prevent a prompt commencement of the mediation
process.
(b) Position Letter, Pre-Mediation Conference.No later than sixty(60) days after selection
of the mediator,each Party shall submit a letter(a"Position Statement")containing(1)a description
of the Party's position concerning the issues that need to be resolved,(2) a detailed description of
the defects allegedly at issue, and (3) a suggested plan of repair, remediation or correction. The
mediator may schedule a pre-mediation conference. All Parties shall attend unless otherwise
mutually agreed. The mediation shall be commenced within twenty(20)days after submittal of all
47
Position Statements and shall be concluded within fifteen(15)days after the mediation began unless
either(A)the mediator extends the mediation period,or(B)the Parties mutually agree to extend the
mediation period.The mediation shall be, held in the County or another place mutually acceptable
to the Parties.
(c) Conduct of Mediation. The mediator has discretion to conduct the mediation in the
manner in which the mediator believes is most appropriate to achieve the goal of settling the Dispute.
The mediator is authorized to conduct joint and separate meetings with the Parties and to make oral
and written recommendations for settlement.The mediator may also obtain expert advice concerning
technical aspects of the Dispute, provided the Parties agree to and do assume the expenses of
obtaining such advice. The mediator shall not have the authority to impose a settlement on the
Parties.
(d)Application ofEvidenceCode.TheprovisionsofCalifomiaEvidenceCode§§1115-1128
shall be applicable to the mediation process. Use and disclosure of statements, evidence and
communications offered or made in the course of the mediation shall be governed by these sections,
including the sections which preclude use of material in future proceedings and the sections which
provide for confidentiality of material.
(e) Parties Permitted at Mediation. Persons other than the Parties, their liability insurers,
Declarant, attorneys for the Parties and the mediator may attend mediation sessions only with the
permission of the Parties and the consent of the mediator. Declarant has the right to attend the
mediation session even if.Declarant is not one of the Parties.
(f) Record. There shal I be no stenographic,video or audio record of the mediation process.
(g) Expenses. Each Party shall bear its own attorneys' fees and costs incurred in connection
with the mediation. All other expenses of the mediation including the fees charged by the mediator
and the cost of any proof or expert advice requested by the mediator shall be borne equally by the
Parties to the Dispute; unless the Parties agree otherwise. This provision does not modify any
provision of a contract between Declarant and any Declarant Party requiring indemnification or
establishing a different allocation of costs between the Declarant and the Declarant Party.
12.4.4 Arbitration of Disputes. To the extent that the Dispute is not resolved during
mediation as provided in Section 12.4.3 herein above, the entire matter shall proceed as one of
binding arbitration governed by the Federal Arbitration Act(9 USC §§1-16) ("Arbitration").To the
extent the rules of procedure set forth herein do not conflict with the Federal Arbitration Act,such
rules of procedure shall be the rules of procedure for the Arbitration. Judicial Arbitration and
Mediation Services("JAMS"),its successors,oranyother entity offering arbitration services agreed
to by the Parties shalt hear, try and decide all issues of both fact and law and make any required
findings of fact and, if applicable, conclusions of law. Notwithstanding the requirements to submit
Disputes to Arbitration, if the Party seeking to submit a Dispute to Arbitration chooses,the Dispute
may instead, as an alternative to Arbitration, be submitted to the California small claims court
subject to the limitations on the jurisdiction of such court.The decision of the small claims court and
any small claims appeals court will be final as to the Dispute.
49
' r
(a) Interpretation. The procedures specified in this Section pertaining to Arbitration are to
be interpreted and enforced as authorized by the Federal Arbitration Act(9 USC §§1-16), which is
designed to encourage use of alternative methods of dispute resolution that avoid costly and
potentially lengthy court proceedings. Interpretation and application of those procedures shall
conform to Federal court rules interpreting and applying the Federal Arbitration Act,The Project is
constructed of or uses materials and products manufactured throughout the United States which are
then shipped to the Project for installation in the Project. The shipment of these materials and
products across state lines to the Project causes the products and materials to enter into the stream
of interstate commerce and become subject to the Interstate Commerce Clause (Article 1, Section
V III of the United States Constitution)and ensuing Federal laws.References to California procedural
law shall not be construed as a waiver of any rights of the parties under the Federal Arbitration Act
or the right of the parties to have the procedures set forth in this Section 12.4.4 interpreted and
enforced under the Federal Arbitration Act.
(b) Initiation of Claim. Any Party wishing to initiate an Arbitration pursuant to this Section
shall serve a demand for Arbitration upon the responding Parties and upon JAMS its successor,or
to any other entity offering arbitration services agreed to by the parties.Except as otherwise set forth
herein, the Arbitration shall be conducted by and in accordance with the rules of JAMS its
successors, or to any other entity offering arbitration services agreed to by the Parties.
(c) Arbitrator. The arbitrator to be appointed shall be employed by.TAMS, its successor,or
to any other entity offering arbitration services agreed to by the Parties.Except as otherwise set forth
herein,the arbitration proceedings shall be conducted by and in accordance with the rules of JAMS
or any successor thereto. Except for procedural issues,the proceedings, the ultimate decisions of the
arbitrator, and the arbitrator himself shall be subject to and bound by existing California case and
statutory law. Should JAMS cease to exist, as such, then all references herein to JAMS shall be
deemed to refer to its successor or, if none,to the American Arbitration Association(in which case
its commercial arbitration rules shall be used). The Parties shall cooperate in good faith and shall
diligently perform such acts as may be necessary to ensure that all necessary and appropriate Persons
are inciuded in the proceeding. Declarant shall not be required to participate in the proceeding if all
Persons against whom Declarant would have necessary or permissive cross-clai ms or counterclaims
will not or cannot be joined in the proceeding.
(d)Select ion of Arbitrator.The proceeding shall be conducted by one(I)qualified arbitrator
selected in accordance with the rules of JAMS.The term"qualified"shall mean a retired judge who
has experience with the laws governing residential real estate development and construction or an
attorney who has actively practiced law in California for at least fifteen (1 S) years and who has
experience with the laws governing real estate development and construction.
(c) Motions and Remedies. The arbitrator shall have the power to hear and dispose of
motions,including motions relatingtoprovislonal remedies,demurrers,motions todismiss,motions
for judgment on the pleadings and summary judgment and/or adjudication motions, in the same
manner as a trial court j udge. In addition,the arbitrator shall have the power to summarily adjudicate
issues of fact or law, including but not limited to the availability of remedies, whether or not the
49
issue adjudicated could dispose of an entire cause of action or defense.The arbitrator shall have the
power to grant provisional remedies including preliminary injunctive relief. Before the selection of
the arbitrator any Party shall have the right to petition the Superior Court of the County for any
necessary provisional remedies.
(f) Discovery. Except as limited herein, the Parties shall be entitled to limited discovery
consisting of. (i) witness lists; (ii) expert witness designations; (iii) expert witness reports; (iv)
Exhibits; (v) reports of testing or inspections, including but not limited to, destructive or invasive
testing;(vi)arbitration briefs;and(vii)the deposition,under oath,of any desi grated experts and two
other depositions of their choosing without obtaining the consent of the arbitrator. All other
discovery shall be permitted by the arbitrator at his or her discretion upon a showing of good cause
or based on the agreement of the Parties. The arbitrator shall oversee discovery and may enforce all
discovery orders in the same manner as any trial court judge.
(g) Full Disclosure. Each Party shall, in good faith, make a full disclosure of all issues and
evidence to the other Parties before the hearing. Any evidence or information that the arbitrator
determines was unreasonably withheld shall be inadmissible by the party that withheld it. The
initiating Party shall be the first to disclose all of the following, in writing, to the other Party and to
the arbitrator:(i)an outline of the issues and its position on each such issue;(ii)a list of all witnesses
it intends to call; and (iii)copies of all written reports and other documentary evidence whether or
not written or contributed to by its retained experts(collectively,the"Outline").The initiating Party
shall submit its Outline to the other Parties and to the arbitrator within thirty(30)days of the final
selection ofthe arbitrator.Each responding Party shall submit its written response as directed by the
arbitrator.
(h)Hcarin .The hearing shall be held in the County.The arbitrator shall promptly commence
the hearing giving due consideration to the complexity of the issues, the number of Parties and
necessary discovery and other relevant matters. The hearing shall he conducted as informally as
possible, California Evidence Code §1152 shall be applicable for the purpose of excluding from
evidence offers,compromises, and settlement proposals,unless the Parties thereto consent to their
admission. Attorneys are not required and any Party may elect to be represented by someone other
than a licensed attorney. Cost of an interpreter shall be born by the Party requiring the services of
the interpreter in order to be understood by the arbitrator and the expenses of witnesses shall be barn
by the Party or Parties producing such witnesses.
(i) Decision. The decision of the arbitrator shall be binding on the Parties and if the award
of the arbitrator is not paid within sixty(60) days of the award it shall be entered as a judgment in
the Superior Court of the County.The arbitrator shal l cause a complete record of al l proceedings to
be prepared similar to those kept in the Superior Court,shall try all issues of both tact and law,and
shall issue a written statement of decision, such as that described in California Code of Civil
Procedure §643 (or its successor), which shall specify the facts and law relied upon in reaching
hislher decision within twenty(20)days after the close of testimony.
50
s1f
(j)Fees and Costs. The total cost of the proceedings, including the initiation fees and other
fees of JAMS and any related costs and fees incurred by JAMS (such as experts and consultants
retained by it) shall be rcallocated in accordance with the Federal Arbitration Act and supporting
cast law, as determined by the arbitrator.The arbitrator shall not award attorneys' fees to any Parry,
each Party to bear its own attorneys fees. The arbitrator may award recoverable costs pursuant to
California law.This provision does not modify any provision of contract between Declarant and
any Declarant Party requiring indemnification or establishing a different allocation of costs between
Declarant and a Declarant Party.
12.4.6 Statutes of Limitation. Nothing in this Section 12.4 shall be considered to toll,stay,
reduce or extend any applicable statute of limitations; provided, however, that Declarant, the
Declarant Parties,the Association and any Owner may begin a legal action which in the good faith
determination of that Person is necessary to preserve that Person's rights under any applicable statute
of limitations as long as no further steps in processing the action are taken except those authorized
in this Section 12.4.
12.4.7 Agreement to Dispute Resolution; Waivers of Jury Trial. DECLARANT, THE
ASSOCIATION AND EACH OWNER AGREE TO USE THE PROCEDURES ESTABLISHED
IN THIS SECTION 12.4 TO RESOLVE ALL DISPUTES AND WAIVE THEIR RIGHTS TO
RESOLVE DISPUTES IN ANY OTHER MANNER. DECLARANT,THE ASSOCIATION AND
EACH OWNER ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL DISPUTES AS
PROVIDED IN THIS SECTION 12.4, THEY ARE GIVING UP THEIR RIGHT TO HAVE
DISPUTES TRIED BEFORE A JURY. THIS SECTION 12.4 MAY NOT BE AMENDED
WITHOUT DECLARANT'S PRIOR WRITTEN CONSENT,
12.4.8 Covenant Regarding Proceeds. If the Association or any Owner prevail in a Dispute,
and the judgment thereon or settlement terms thereof includes a monetary award,then the proceeds
of the award shall be first applied to the remediation of the condition that gave rise to the Dispute.
END OF ARTICLE 12
S1
ARTICLE 13
DURATION AND AMENDMENT
13.1 DURATION. This Declaration shall continue in full force unless a declaration of
termination satisfying the requirements of an amendment to this Declaration established in Section
13.2 herein below is Recorded.
13.2 TERMINATION AND AMENDMENT.
l 3.2.1 Amendment Approval.Notice of the subject matter of a proposed amendment to this
Declaration or a Supplemental Declaration in reasonably detailed form must be included in the notice
of any Association meeting or election at which a proposed amendment is to be considered.To be
effective,a proposed amendment other than amendment or termination by Declarant, as described
in Section 13.2.2(x) herein below, or minor corrections by Declarant, as described in Section
13.2.2(b) herein below, must be adopted by the vote, in person, by proxy, or by written consent,of
Owners representing not less than sixty-six and two-thirds percent (66 2l31/6) of the total voting
power of the Association. If, however, the provision being considered for amendment requires
amendment approval by a higher percentage of the voting power than that specified in this Section
13.2.1, then the proposed amendment shall not be adopted unless approved by such higher
percentage of the voting power.
13.2.2 Amendment or Termination by Declarant.
(a) Before First Closing. Notwithstanding any other provisions in this Article 13, (i)
Declarant may unilaterally amend or terminate this Declaration for any purpose,until the first Close
of Escrow in the Project, and (ii) Declarant may unilaterally amend or terminate a Supplemental
Declaration for any purpose, until the first Close of Escrow in the real property affected by the
Supplemental Declaration to be amended or terminated. Amendment or termination shall not be
effective until Declarant has Recorded in the Official Records an instrument signed and
acknowledged by Declarant.
(b) Minor Corrections. Notwithstanding any other provisions of this Article 13, Declarant
(as long as Declarant awns any portion of the Project) may unilaterally amend this Declaration or
a Supplemental Declaration by Recording a written instrument signed by Declarant to: (1)conform
this Declaration or any Supplemental Declaration to the rules, regulations or requirements of
institutional lenders, the County or City, (2) amend, replace or substitute any Exhibit to correct
typographical or engineering errors, (3) include any Exhibit that was inadvertently omitted at the
time of Recording, (4) comply with any City, County, State, or Federal laws or regulations, (5)
correct typographical errors,or(6)change any Exhibit or portion ofan Exhibit to conform to as-built
conditions.
52
13.2.3 Certificate.Except for amendments by Declarant under Section 13.2.2 herein above,
each amendment becomes effective when a Certificate of Amendment is Recorded.The certificate,
signed and sworn to by two(2)Association officers,is conclusive evidence that the requisite number
of Owners have approved the amendment. The Association shall keep the record of all such
approvals in its files for at least four(4) years.
END OF AR'T'ICLE 13
53
ARTICLE 14
GENERAI. PROVISIONS
14.1 NO PUBLIC RIGHT OR DEDICATION. Nothing in this Declaration is a gift or
dedication of all or any part of the Project to the public, or for any public use.
14.2 NOTICES. Except as otherwise provided in this Declaration, notice to be given to an
Owner must be in writing and may be delivered to the Owner,or a designated representative of such
Owner,personally or by any system or technology designed to record and communicate messages,
telegraph, facsimile, electronic mail, or other electronic means, at the address provided by such
Owner to the Association. Delivery of such notice to one (l)or more Co-Owners of a Unit, to any
general partner of a partnership owning the Unit,or to a manager or managing member of a limited
liability company owning a Unit,constitutes delivery to all Co-Owners,the partnership or the limited
liability company. Delivery of such notice to any officer or agent for the service of process on a
corporation constitutes delivery to the corporation.Alternatively,notice maybe delivered by regular
United States mail,postage prepaid,addressed to the Ownerat the most recent address furnished by
such Owner to Declarant or the Association, as applicable. Such notice is deemed delivered three
(3) business days after the time of such mailing,except for notice of any meeting of Members or of
the Board, in which case the notice provisions of the Bylaws control. Any notice to be given to the
Association may be delivered personally to any member ofthe Board of Directors,or sent by United
States mail,postage prepaid,addressed to the Association at such address as maybe fixed from time
to time and circulated to all Owners or sent by any system or technology designed to record and
communicate messages, telegraph, facsimile, electronic mail, or other electronic means to such
address or telephone number as the Board may establish. All notices to Declarant shall be sent to
S & T Properties
1290 East Spruce
Fresno, CA 93720
Attention: Saltna Simjee, David N Tashjian, Donald Snyder
Each Owner and Declarant may change its address by written notice to each other given in
the manner herein, above stated.
14.3 NOTICE OF EMERGENCY SITUATION. Each Owner shall be responsible for
providing to the Association a telephone number or other means of immediate notification for
purposes of contacting such Owner upon the occurrence of an emergency situation in such Owner's
Unit. If' the Unit is leased, the Owner may designate the tenant as such Owner's emergency
notification contact,and notice of an emerge^cy situation to such tenant shall be deemed notice to
the Owner. Failure to provide valid contact information for emergency notification purposes shall
be deemed a waiver of the right to prior notice of the exercise of any rights provided to the
Association hereunder upon the occurrence of an emergency situation.
54
14.4 ESTOPPEL CERTIFICATE. Each Owner, Declarant and the Association shall, upon
the written request of any Owner, issue to the requesting party, or to any prospective Mortgagee or
purchaser of such requesting party's Unit, an estoppel certificate stating (i) whether the party to
whom the request has been directed knows of any default under this Declaration relating to or
materially affecting the requesting Owner's Unit and, if there are known defaults, specifying the
nature thereof,(ii)whether,to the best knowledge of the responding party,this Declaration has been
modified or amended in any respect and, if there are known amendments, specifying the nature
thereof,and(iii)whether, to the best knowledge of the responding party,this Declaration is,at that
time, in full force and effect.
14.5 ATTORNEYS' FEES; COURT COSTS. Subject to compliance with the provisions of
Article 12 of this Declaration, if any action or proceeding is instituted to enforce or interpret this
Declaration or for damages on account of the breach of this Declaration,the prevailing party in any
such action or proceeding shall be entitled to recover from the other party its reasonable attorneys
fees and costs and expenses of litigation incurred in such action or proceeding.
14.6 SECURITY AND PRIVACY DISCLAIMER. Services provided by the Declarant or
the Association may provide access control or other security benefits to the Project;however,these
services do not provide security for Persons,personal property or Improvements in the Project. The
Association shall not undertake any obligation to provide security for the Project nor do they make
any representations or warranties whatsoever concerning the privacy,security or safety of the Project.
The Association shall not be liable to any Person, and each Owner waives any claim against the
Association, for (i) any unauthorized or criminal entry of third parties into the Project or any
Improvements in the Project, (ii) any damage, injury or death of any Person, or (iii) any loss of
property in and about the Project or any Improvements in the Project, if any of such events listed in
clauses(i),(ii)or(iii)are caused by any unauthorized or criminal acts of third parties, regardless of
any action, inaction, failure, breakdown, malfunction or insufficiency of the security services
provided by the Association.
14,7 REAL ESTATE TAXES.Each Owner shall pay,orcause to be paid,when due,all real
estate or personal property taxes and assessments which may be levied,assessed,or charged by any
public authority against the Owner's Condominium or any personal property or Improvements in
such Condominium. If real estate taxes on a Condominium are not separately assessed as of the
Close of Escrow for the sale of the Condominium, the Owner shall take such action as may be
reasonably necessary to obtain separate real estate tax assessment of the Condominium. If all
Condominiums are taxed under tax bill covering all of the Project, the Association shall allocate
taxes among the Owners and their Condominiums based on the Percentage Share of the total
Assessments allocated to such Condominium on Exhibit B hereto. At least forty-five (45) days
before the delinquency date of any tax installment, the Association 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/her
share of the tax installment and the potential additional charges to the Owner for failure to comply.
Each Owner shall pay his/her share of any installment due under the tax bill to the Association at
least ten (10) days before the delinquency date. The Association shall transmit the taxes to the
appropriate tax collection agency on or before the delinquency date. The Association shall pay the
55
taxes on behalf of any Owner who does not pay his/her share, and shall impose an Individual
Assessment on the Condominium of any delinquent Owner in an amount equal to the sum advanced
by the Association pursuant to this Section 14.7, plus interest at the rate often percent(10%) per
annum and any amount necessary to reimburse the Association for any penalty or late charge actually
assessed in connection with the tax bill resulting from the failure of the delinquent Owner to make
timely payment of his/her share of the taxes.
END OF ARTICLE 14
5b
�a
ARTICLE 15
RIGHTS OF THE CITY
In addition to all the rights reserved to the: City by other provisions of this Declaration, the
City shall have the following additional rights;
15.1 RIGHT OF ACCESS. The City is hereby granted the right of immediate access to all
portions of the Common Area of the Project for the purpose of preserving the public health, safety,
and welfare.
15.2 ON-SITE UTILITY MAINTENANCE. The Association shall have the duty to maintain
and repair all on-site sewer,water and drainage facilities, unless the City or flood control district
have determined lines that a particular facility should be public to provide necessary system
completion or otherwise protect public healthy,safety, and welfare.
15.3 UTILITY CHARGES. The Association shall have the duty to pay for 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.
15.4 NO ALTERATION TO PARTY WALLS. No Owner shall alter,modify, reconstruct,
or do any other thing to a parry wall, if any, 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.
15.5 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 Fresno Municipal Code,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.
15.6 AMENDMENT. Any amendment by the Association of the provisions of this Article
15 or any other provision specifying any right of the City shall require the prior written consent of
the City.
END OF ARTICLE 15
57
Lt
SIGNATURE PAGE OF DECLARATION OF COVENANTS, CONDITIONS, AND
RESTRICTIONS AND RESERVATION OF EASEMENTS FOR PROFESSIONAL OFFICE
CONDOMINIUMS (SPRUCE PROFESSIONAL CENTER)
This Declaration is dated 3-U LY 1 Z ,2016,for identification purposes onlyand shall
be effective upon Recordation in Official Records of the County.
S& T Properties,
A General Partnership
By:
Dr. Salina imjee, Ge oral Partner
By:
Dr. DavidTa jian, General Partner
sy:
— AixoritA%4-
Dr. Donald E. Snyder, Gener Partner
By: rl� jam'
Mar/Snyder, General Partner
[ATTACH NOTARY ACKNOWLEDGMENTS]
M:IaClie�sl�l2?75140tlWor�ccrs.f:f13(1S f G.espd
58
k
EXHIBIT A
SPECIFIC MAINTENANCE OBLIGATIONS
MAINTENANCE RESPONSIBILITIES
ITEM
The Owner maintains all interior doors and their hardware, interior wall surfaces,
Unit drywall for any interior walls,Dividing Walls, cabinets,floor coverings,ceilings,
permanent fixtures,appliances,electrical outlets and switches,toilets,and smoke
detectors(including periodic testing,and replacement of batteries).
Private Access The Owner maintains and repairs the interior surfaces,the handle, locking
Doors(Units) mechanism and kick plates and performs any touchup painting on the exterior
surface if necessary before Association's periodic painting.
Glass Entry Doors The Owner maintains and repairs.
Windows or Glass The Owner maintains and repairs all portions of the windows or glass_partitions,
Partitions inside the
Unit including the frame,caulking,panes,sheathing and glass.
Light Fixtures and The Owner maintains the light fixtures and fans actuated from switches
Fans controlled From or separately metered to the Owner's Unit.
Water Pressure
Regulator, I lot Water
Heaters, Plumbing
Outlets and Fixtures, The Owner maintains the portions within such Owner's Unit as well as any
Furnaces.and I1VAC portions located within the Common Area which exclusively serve the Unit. The
Systems(including hot water heater located in the Utility Chase which provides hot water to Units B
ducts and control and C shall be maintained by the Owners of Units 13 and C.
systems)
Telephone&
Communications,
Wiring exclusively The Owner maintains.
seting a Unit,Alarm
System exclusively
serving a Unit
The Association maintains the structural components,exterior finished surfaces,
exterior stucco walls, roofs,(except interior finished surface), Dividing Walls
(except Unit-facing surfaces),fire and life safety systems,including risers,sprinkler
Condominium heads,and monitoring equipment, and all portions of the exterior perimeter
Building windows of Units, including the frames,any screens,weather stripping,calking,
panes,sheathing and glass(except glass entry doors to Units as provided in Section
2.16 of this Declaration).
�3
MAINTENANCE RESPONSIBILITIES
ITEM
Parking Area,
including Exclusive
Use Area Carport
Structure and Carport
Parking Spaces, The Association maintains.
Common Area&all
Improvements and
Landscaping located in
the Common Area
The Association maintains the utilities serving the Common Area.
Utilities The Owners maintain uti lilies serving the Units that are separately metered.This
includes all gas lines serving the units that are not serviced by the gas company,all
water lines beginning at(and including)the water shutoff►salve and running into the
Unit,all individual Unit interior wastewater drain lines that connect to the Common
Area drain lines serving multiple Units,cable television lines and other
communication systems serving an individual Unit.electricity wiring and facilities
from(but excluding)the submeter to the Unit.
Signs The Association shall control and maintain the Condominium Building directory
signage and monument signage. Owners pay For the installation,replacement,repair
and maintenance of the signs identifying the Owners'Units and the business
conducted in an O.vner's Unit,
Utility Facilities
located within the
Utility Chase and
Except as provided in Section Z.lS of this Declaration,the Association
Dividing Walls that
serve all Units and/or maintains.
the Common Area
Utility Facilities
located within the
Utility Chase or The Owner(s)of the Unit or Units that are exclusively served by such Utility
Dividing Wails that Facilities maintain.
exclusively serve only
certain Units
EXHIBIT B
PERCENTAGE SHARE/SQUARE FOOTAGE OF UNITS
Unit No. Square Footage Percentage Share
A 2,332 33.52%
B 2,341 33.65%
C 2,284 32.83%
EXHIBIT C
OWNER INSURANCE PROVISIONS
1. Liability. Commercial general liability insurance (including coverage for medical
payments), with combined single limits of at least $2,000,000 per occurrence, insuring against
liability for bodily injury,death and property damage occurring in such Owner's Unitand Exclusive
Use Area or anywhere else within the Project(to the extent resulting from the activities of Owner
or its Permittees within the Project).Such liability insurance shall be endorsed to cover the Owner's
contractually-assumed liabilities pursuantto this Dec laration.The limits ofany coverage maintained
by an Owner shall not be deemed to limit such Owner's liability under the Governing Documents.
2. Fire and Casualty Insurance. Fire and casualty insurance with extended coverage, in an
amount as near as possible to the full replacement value of the Improvements in such Owner's Unit
and Exclusive Use Area for which the Association has not purchased insurance in accordance with
this Declaration, without deduction for depreciation or co-insurance penalties.
3. Worker's Compensation Insurance. Each Owner shall maintain, and shall require its
tenants to maintain,Worker's Compensation and Employer's Liability Insurance as required by law.
4. Builder's Risk Insurance. During any period when construction within a Unit is taking
place,the Owner of such Unit shall carry or shall cause its contractor to carry, a policy of Builders
Risk Insurance written on completed value form. Such insurance shall be"All Risk"(including the
perils of flood and earthquake, provided earthquake coverage is available at a commercially
reasonable rate on the open market); provide in-transit coverage, including loading and unloading,
offsite storage and loss of rents,and all exclusions therein for Boiler and Machinery, if any, shall be
deleted.
5. Additional Owner Insurance Requirements. Pursuant to Section $.5 of this Declaration,
all Owner insurance policies required under this Declaration shall be issued by a single insurance
carrier approved by and with limits of coverage acceptable to the Association. Such policies of
insurance shall (a) be written as primary policies, not contributing with, and not in excess of,
coverage which the Association may carry,(b)name the Association,the Manager and Declarant as
additional insureds,(c]provide that not less than ten(10)days prior written notice shall be given to
the Association in the event of material alteration to or cancellation of the coverages evidenced by
such policies,and (d)contain waivers by the insurer of any defense based on co-insurance, and of
subrogation as to any claims against the Association,the Manager, Declarant, or the other Owners.
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
validit of that document.
State of California
County of Fro mb )
On Tckr?6 30., Q(G before me, .4 ado dem-t. 92 am Ut6
(insert na a and title of the officer)
personally appeared A,, D4 vtdu. E 5n H4M 511 d
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(i)Vare
subscribed to the within instrument and acknowledged to me that hWJthey executed the same in
19islhw/their authorized capacity(ies), and that by)ri§h-*[ltheir signatures) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
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. AmANDAAMOELCOMM.OVOW
i
WARY W cum
r FREBMOCO
Y►Ca�a r r+bulry b
Signature 'J-� (Seal)
NOTARY SEAL, CLARIFICATION PAGE
T certify under penalty ofperjury that the "Notary Seal" on the
document to which this statement is attached :reads as follows:
Name of Notary:_ A MANOR A����
Commission #:
Date commission expires: -r- 8(ZUaR� 2-3, ?-6w
Place of execution: Flz cylvp C-Oolya
Date: Ii y
5ignature(Firm Name if any)
(Gov't-Code,Sec 27361.7)