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SR-402-002 (32) Ave helwr.:An hAtW",",,o1f1 Court nfJ ~~ hoot ;g ho A' Cau rt treet n d n crealS is af '18fllior:J an daho Iq ificant tr~ffiG Aven hAI'Ne81f nd ih Street" th reby Co sliluting imO.C1cL Hr)w(Z~w'.r th re 110 feasihl ml tlgation measu M pedlica ~Iy th R provid! Irer:t Gees from StrRHI 10 th project it~ an mi Iking 5n, Co Irt Alley e.way nortrl t.o Ivp.rt Iff"lffif:; gwey "rorn Id Aven tt18se nnt fAasib~ miUqatio fo tl1 ollovJnng reasor! Pr::t"r the from 1 Street C0'"1 VJ.lIt:h Sr..Jn!Pl Monica MI Code 04 OAn p~Grnca lIy this sectinn pro ibHs rh uts to pr0wl ,'iitrr.:r.:t ceess to ~slte parkin p:::ares rnuW-famil'y resid HHI r hp Santa Mo ica Mi Cadi standard pmvid fo se of alleys rb ts both Imiti Ig they re inlenderl fn ve icula cces th~ mi limizaUon of ncreas~s n18xim 1m amount of Qn-~hee! parkinp as conflicts !'1'4t".Neen pedestr~a nel There re J AYr€otiiJrs which has fl0 irlp. if~ct mi IY rovide GGElSS frnm thRwt1e mar Whl9r'J the; ite. Inpograpri con mtinn constraints that reclud rA<'l~nna If! GGess to on-site parking fmrr al~ev the ;dent th10jf thR use of the prClperty is restncted beyon nth rNise pp~icahlFl Property DeveloprTlI int Star1d~'] average slope nf thq -:'818 r fi've p~n:ent; th~ nng f'l.nm i s;h:::'ltnr no fh Transportrilinr Ing Mnnag d~.e ne that ClJ rb cut appm ria~e tottraffic circu lalio s:afety conr.:p.ms P rking rtAtArfTI nAd tn be requirecj fmrn alleys as alleys are intended for vehicular access and are designed to service all adjoining properties up to the maximum density allowed for such properties. Curb cuts are only determined to be appropriate in exceptional circumstances that may include, but may not be limited to the physical inability of vehicles to turn in or out of an alley and the use of alleys to provide pedestrian crossing between properties with associated uses. However, the project site does not qualify for any of these four exceptions and must provide access to on-site parking spaces from the alley. (ii) The proposal to make 15th Court one-way north would result in more traffic onto Idaho Avenue and would encourage unsafe left turns on Montana Avenue from 15th Court Alley. Customers visiting the adjacent businesses to the north would be precluded from southbound use of the alley and would be required to circle the block to enter onto Idaho Avenue thereby routing more traffic onto Idaho Avenue. Further, a north-bound alley would increase the likelihood of vehicles traveling west from 15th Court to take unsafe left turns onto Montana Avenue and/or would increase the course of travel which would also create a significant impact Idaho Avenue. Therefore, this possible mitigation measures would itself result in significant negative impacts in the area. SECTION 5. The CEQA-mandated environmentally superior alternative was found to be the No Project Alternative. As analyzed in the Final EIR, the No Project Alternative would result in impacts that would be less than the proposed project as q~ L Q3 well as for the other alternatives considered. However, the No Project Alternative is not feasible since it does not satisfy the project objectives as it would not allow the three existing units to be replaced with a new multi-family housing project in this multi-family residential district. Additionally, when the No Project Alternative is identified as the environmentally superior alternative, CEQA requires that another alternative that substantially reduces or eliminates potential impacts be identified. Since the Final EIR determined that one additional vehicle trip on Idaho Avenue adjacent to the project would result in significant unavoidable impacts, any alternative that increases the present use of the site would generate at least some additional trips on Idaho Avenue and thereby be considered a significant unavoidable impact. Accordingly, there are no other alternatives that would substantially reduce or eliminate potential impacts. Furthermore, the No Project Alternative is not feasible since it does not allow development of additional housing stock that is consistent with the intent of the R2 District and Goals, Objectives and Policies of the General Plan. SECTION 6. The remaining project alternatives analyzed in the Final EIR, the 20 Percent Reduced Project and the 40 Percent Reduced Project, would have similar impacts on the environment when compared to the proposed project in that they both would have a significant and unavoidable adverse impact on neighborhood traffic. SECTION 7. As fully described in Section 4 above, the Final EIR found that '."'''' (\' 1 0 ~ ;h ~ --' lj. the proposed project would result in significant and unavoidable adverse impacts in the area of traffic/circulation (project related), This unmitigatible impact was also identified in the neighborhood effects section of the Final EIR. Consistent with Article VI, Section 13 of the City CEQA Guidelines and Section 15093 of the State of California CEQA Guidelines, the City Council hereby makes a Statement of Overriding Considerations and finds that the benefits of the project outweigh its unavoidable environmental impacts based on the following reasons: (a) The City's Land Use Element establishes one overriding objective, Objective 1.10, for the residential districts. Objective 1.10 provides, "Expand the opportunity for residential land use while protecting the scale and character of existing neighborhoods." Furthermore, the Land Use Element also establishes one key policy for the residential districts, Policy 1.10.1. This policy provides, "Encourage the development of new housing in all existing residential district, while still protecting the character and scale of the neighborhoods." This project should be encouraged because it constitutes a new multi-family development in a multi-family housing district consistent with all of the applicable development standards, including height, density, setbacks, parking and landscaping. This project will provide a net increase of seven new dwelling units. This new housing project should be encouraged based on Land Use Element Objective 1.10 and Policy 1.10.1, which are the City's key policies for the residential districts. (b) The first goal stated in the City's Housing Element Update is Goal ,', ~i~$ \),05 .0, 'lI'Ihir::h pro'Jides. "Promote the r::rm.::;tructirm)f hn srngwithi the l~tnrV fm mework. 1 his project si8hsfies th dClvi"llopmerb sta for new hOlUsinq the R.2 Distrrr:t inr;;;!'Jd.fl.g height, rlensity setb.8ck~ park.nq no l:ands.r:Rpnng Go (')f the HOIJ lement UpdAte encouraqes ~ approval uch tlOusing pr'njects (I:) Th.s: pmjAct Corl,;tltut~~ n.fiJ i"ilJlUsinq protect that complies with 2'1:1 of plir.rihl development id81~nes for 7nniriq fad this .Jec~ consists of ten its whicl,: will ide additional s"-'!th.:=u::ks i'Jper le',/el backs lanrfscaDing and priv8:te DflF?-n sp.ece reater th is: required the developrn8n t. [d' Th8 Rn"jrFOnmEmta nf this project a r'e WJt bstantfally iffel en! lheywould be for lslr"jped with D.VO ngle-IQt lum rojects Int:;:'lh~d sid.e-by-sirl nd 9:9ch contain~ng five lHl its. except thFlt tWQ fijve projects Irl A8'0h lJe c::;Jteqork:Ally exempt from CEOA pur~U;=illt to CI 59 By developing ingle, :integrated 1 O~u lit projecl twn lots the 8ppll(~;;:\n~ Ii': to include cQurtyard rea lhp. project no rovide rTl(Jrp. 20':ij(j gre.::lter yard ~f'!lh~CK'3r ildirg s':3para':iorl a.nd landscaping rh:;"];ign will CQ'rnp3ris01 tn two R;ingl8~IQt OCCUp.EHlts and adjacent hho iurn pmjec:"!> (e) Th~ R th.~t et iflcre8se ill AUT VOIUrllE! vp.hir:1 would occur on Idaho Avenue between 15th Court and 15th Street, a net increase of 8 vehicles on Idaho Avenue between 15th Court and 16th Street, and an increase of 1 vehicle on Idaho Avenue between 16th and 1 yth Street, thereby constituting a significant traffic impact. The criteria established by the City of Santa Monica to assess the incremental increase of traffic is such that the addition of one trip per day would exceed the threshold and therefore result in a significant impact. (f) The City's Housing Element Update establishes a housing production objective for affordable units for the years 2000 through 2005 equal to a total net increase of 1,281 units. This total consists of 442 moderate-income units (affordable to persons earning between 80% and 120% of the Los Angeles County median income), 331 low-income units (affordable to persons earning between 51% and 80% of the County median income) and 508 very low-income units (affordable to persons earning less than 50% of the County median income). Further, this project will provide the City with approximately $154,084.95 for use to subsidize the development of new deed-restricted affordable housing within the City of Santa Monica SECTION 8. Consistent with Public Resources Code Section 21081.6 the City Council adopts the Mitigation Monitoring Plan, which is included as Attachment A, to mitigate or avoid the significant effects of the Project on the environment and to ensure compliance during project implementation. I, t 07 ~ ~ C o =:E- =-~ ~= ....E- E-CTJ. ~e: =-\Q =: Q~ z~ <1"1 COO zE- ....u =:f;Il 0"" E-O ....=: Z=- O~ ~~ Z.... O~ ....~ E-O 25Q ....z r::o ~u ...;!E- <.... E-Z z~ ~z ~~ zE- ~ ;;: Z ~ 0tI = .... J. Q .... 'a Qc ~ J. ~ ~ :c~ .... '" = Q =- '" ~ ~ -- ~ ~ ~ e .... = ~ J. Q J. Q.... ~ ;t: ~ ~ = == ~ ~~ '" ~ J. = '" ~ ~ ~ = Q .... .... ~ 0tI .... .... ~ .... ("I ~ =- e ..... .~ :g ~-:;:. 5 "0 5 Or;) &i s :E .......";j ~I::Cl O..,~o..... ..... I:: I::'.;:l I:: 5~~~~ ~8~~~ &.~ S ; ; Clw~r::::E .~ ..... g ~ 5 8 ~'.;:l .9 '5 g 1-0 "t:l tll .9"t:l 5 ~&iC) ~ I:: I:: ~ ,.:g,.:g] ..... c.c.~ 5 ~.~ c S '+:l .c: . .... Q)Q)E-<U -a] .,.g s - 1::..... ..... g.9 >-. 00 ..........~ I:: ] .9 g ~ .~ ~Stllo..8 ". 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C3 1>1- 0113 ATTACHMENT G CC & R's Resume Electronic version of attachment is not available for review. Document is available for review at the City Clerk's Office and the Libraries. t,H~ 0114 .; '"V/' ' ~~~? . RECORDING REQUESTED BY ANn WHEN RECORDED MAll. TO: " . DECLARATION OF COVENANTS, CONDmONS, AND RESTRICTIONS FOR 834 - 838 16th STREET 6dq6'o~1 ~~ 0115 Article II PROPERTY RIGHTS AND OBLIGATION OF OWNERS Section 1 Section 2 Elements of Condominium Owners' Nonexclusive Easements of Enjoyment II-I Persons Subject to Governing Documents 11-2 Delegation of Use 11-2 Obligations of Owners 11-2 Assessments Generally Regular Assessments Special Assessments Special Individual Assessments Purpose and Reasonableness of Assessments Exemption of Certain of the Properties From Assessments IV-8 Notice and Procedure for Member Approval Pursuant to Sections 2 and 3 IV-8 Maintenance of Assessment Funds IV-8 Collection of Assessments; Enforcement of Liens Transfer of Condominium by Sale or Foreclosure Priorities Section 3 Section 4 Section 5 Article III HOMEOWNERS ASSOCIATION Section 1 Section 2 Section 3 Creation -of Association Association Membership Voting Rights of Members/ Two Classes of Membership Assessments Transfer of Memberships Powers and Authority of the Association Association Rules Breach of Rules or Restrictions Limitation on Liability of the Association's Directors and Officers Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Article IV ASSESSMENTS Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Section 10 Section 11 ii 111-1 III -1 111-1 111-1 111-2 111-2 111-3 III -4 IV-l IV-l IV-5 IV-6 IV-7 IV-9 IV -12 IV-12 ~n' f. 11 7 Section 12 Section 13 Section 14 Article V Section 1 Section 2 Section 3 Section 4 Section 5 Article VI Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Section 10 Section 11 Section 12 Section 13 Section 14 Section 15 Section 16 'Section 17 Section 18 Section 19 Section 20 Section 21 Section 22 Article VII Section 1 Section 2 . U nallocated Taxes Assignment of Rents Waiver of Exemptions IV-12 IV -12 IV -13 ARCHITECTURAL IMPROVEMENTS! ALTERATIONS Improvements in General Submission of Plans; Action by Board ArchitecttJral Rules Variances Estoppel Certificate V-I V-I V-I V-I V-2 USE OF PROPERTIES AND RESTRICTIONS Single Family Residential Use Conveyance of Condominiums or Lots Interior Improvements Common Areas Prohibition of Noxious Activities Household Pets Signs Business Activities Garbage Storage Clotheslines Antennas and Similar Devices Burning Basketball Standards Machinery and Equipment Diseases and Pests Parking and Vehicle Restrictions Use of Private Streets in Common Area Children Activities Affecting Insurance Variances Enforcement of Property Use Restrictions MAINTENANCE RESPONSIBILITIES Common Area and Recreation Area Association Maintenance Responsibility With Respect to Unit Improvements iii VI-l VI-l VI-l VI-l VI-2 VI-2 VI-3 VI-3 VI-3 VI-3 VI-4 VI-4 VI-4 VI-4 VI-4 VI-4 VI-5 VI-6 VI-6 VI-6 VI-6 VI-6 ~w (:.1.18 Section 3 Owner Maintenance Responsibility VII -1 Section 4 Association Recovery of Costs of Certain Repairs and Maintenance VII-2 Section 5 Cooperative Maintenance Obligations VII - 2 Articlel VIII EASEMENTS Section I Encroachment Easements VIII-I Section 2 Blanket Utility Easement VIII-I Section 3 Maintenance Easements VIII -I Section 4 Other Easements VIII -1 Section 5 Priority of Easements VIII-l Article IX INSURANCE Section 1 Types of Insurance Coverage IX-l Section 2 Coverage Not Available IX-2 Section 3 Copies of Policies IX-2 Section 4 Individual Fire and Casualty Insurance Umi ted IX-3' Section 5 Trustee IX-3 Section 6 Adjustment of Losses IX-3 Section 7 Distribution to Mortgages IX-4 Section 8 Owner's Liability Insurance IX-4 Article IX DAMAGE OR DESTRUCTION Section 1 Destruction; Proceeds Exceed 85 Percent of Reconstruction Costs X-I Section 2 Destruction; Proceeds Less than 85 Percent of Reconstruction Costs X-I Section 3 Rebuilding Procedures X-I Section 4 Definition of "Eligible Members" Entitled to Vote X-2 Section 5 Rebuilding Contract X-2 Section 6 Rebuilding Not Authorized X-2 Section 7 Minor Repair and Reconstruction X-3 Section 8 Appraiser X-4 iv ~_ .l.19 ~ Article IXI CONDEMNATION Section 1 Sale by Unanimous Consent of Taking ~ection 2 Distribution and Sale Proceeds of Condemnation A ward Article IXII PARTITION OF COMMON AREA Section 1 Suspension or Right of Partition XII -1 ~ection 2 Distribution of Proceeds Upon Partition XII-l ection 3 Power of Attorney XII -1 Article XIII NONSEVERABILITY OF COMPONENT INTERESTS Section 1 Severance Prohibited XIII -1 Section 2 Limitation on Interests Conveyed XIII -1 Article [XIV BREACH AND DEFAULT Section 1 Remedy at Law Inadequate XIV-l Section 2 Nuisance XIV-l Section 3 Costs and Attorneys' Fees XIV-l Section 4 Cumulative Remedies XIV-l Section 5 Failure Not a Waiver XIV -1 Section 6 Rights and Remedies of the Association XIV-l Section 7 Court Actions; Arbitration; Mediation XIV -4 Article XV PROTECTION OF MORTGAGEES Section 1 Mortgage Permitted XV-l Section 2 Subordination XV-l Section 3 Control of Amendment or Revocation of Project Documents XV-l Section 4 Restriction on Certain Changes XV-2 Section 5 Mortgagee's Right to Examine Books and Records XV-3 Section 6 Priority in Distribution of Insurance and Condemnation Proceeds XVu- 3 Section 7 Status of Amenities XV-3 Section 8 Default Notice Requirement XV-4 Section 9 Payments by Mortgagees XV-4 v ~'* 120 Section 10 Effect of Breach of Declaration on Mortgagee XV-4 Section 11 Status of Loan to Facilitate Resale XV-4 Section 12 Right to Appear at Meetings XV-4 Section 13 Right to Furnish Information XV-5 Section 14 Right of First Refusal Inapplicable to Mortgagee XV-5 Section 15 Limitation on Term of Management Contract Section 16 ; Control if Mortgagee Protections Conflict With Other Provisions Article XVI NOTICES Section 1 Mailing Addresses XVI-l Section 2 Personal Service Upon Co-Owners and Others XVI-l Section 3 Deposit in United States Mail XVI-l Article XVII NO PUBLIC RIGHTS IN THE PROPERTY XVII- Article XVIII AMENDMENT OF DECLARA nON Section 1 Amendment in General XVIII -1 Section 2 Effective Date of Amendment XVIII-l Section 3 Reliance on Amendments XVIII -1 Article XIX GENERAL PROVISIONS Section 1 Term XIX-l Section 2 Construction of Declaration XIX-l Article XX CITY OF SANTA MONICA PROVISIONS Section 1 Declarant Warranty XX-l Section 2 Destruction and Abolishment of Project XX-l Section 3 Maintenance XX-l Section 4 Dedication XX-l Section 5 Management XX-l Section 6 First Year Budget XX-l Section 7 Conflict XX-2 vi ~~. 0121 f.ECLARA TION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR I 838 16th STREET _ This Declaration is made this day of , 1998, by (If Declarant") . RECITALS A. Declarant is the owner of that certain real property ("Property") located in the City of Santa Monica, County of Los Angeles, State of California, which is more particularly described in Exhibit If A If attached hereto and incorporated herein by this reference. B. Declarant intends to develop the Property into a condominium project under the provisions of California Civil Code Section 1350, et seq., subject to certain easements, covenants, conditions, restrictions, reservations, liens and charges, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property and to sell and convey residential Condominiums to the Owners, subject to the covenants, conditions, restrictions, limitations, reservations, grants of easements, rights, rights-of-way, liens, charges and equitable servitudes between Declarant and such Owners which are set forth in this Declaration and which are intended to be in furtherance of a general plan for the subdivision, development, sale and use of the Property in furtherance of a plan of condominium ownership as described in Section 1351 of the California Civil Code. NOW THEREFORE, Declarant hereby declares that the Property shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, sold, and improved, subject to the following declarations, limitations, covenants, conditions, restrictions, liens, charges and easements, all of which are for the purpose of enhancing and protecting the value and attractiveness of the Property, and every part thereof, in accordance with the plan for the improvement of the Property and division thereof into Condominiums. All of the limitations, covenants, conditions, restrictions and easements shall constitute equitable servitudes in accordance with California Civil Code Section 1354 and shall be binding upon Declarant and its successors and assignees, and all parties having or acquiring any right, title or interest in or to any part of the Property. R-I lit" 0122 Article I Definitions Section 1. "Architectural Committee" means the committee created in accordance with Article V of this Declaration. 834- fection 2. "Articles" means the Articles of Incorporation of 838 16th ,-Street . which are filed in the Office of the California Secretary of State, as such Articles may belamended from time to time. Section 3. "Assessment" means any Regular, Special or Special Individual Assessment made or assessed by the Association against an Owner and his or her Condominium in accordance with the provisions of Article IV of this Declaration. S!4-- Section 4. "Association" means - 838 16th Street . a California nonprofit corporation (formed pursuant to the Nonprofit Mutual Benefit Corporation Law of the State of California), its successors and assigns. The Association is an "association" as defined in California Civil Code Section 1351(a). Section 5. "Association Rules" means the rules, regulations and policies adopted by the Board of Directors of the Association, pursuant to Article III, Section 7 of this Declaration, as the same may be in effect from time to time. Section 6. "Board of Directors" or "Board" means the Board of Directors of the Association. Section 7. "Bylaws" means the Bylaws of the Association, as such Bylaws may be amended from time to time. Section 8. "City" means Santa Monica and its various departments, divisions, employees and representatives. Section 9. "Common Area" means the entire Project except all Units, as defined in Article I, Section 30 and shown on the Condominium Plan. Unless the context clearly indicates a contrary intent, any reference herein to the "Common Areas" shall also include any Common Facilities located thereon. As more particularly described in Article II, Section 2(d), portions of the Common Area are designated as Exclusive Use Common Areas whose use and enjoyment are restricted to the Owners and occupants of the Units adjacent to such Exclusive Use Common Areas. Each Unit Owner will receive the following undivided interest in the Commpn Area: one-+ifth ( 1/j ). I TeJ7"H ('/I () ) 1-1 MJe 0123 e . Section 10. "Common Expense" means any use of funds authorized by Article IV hereof and includes, without limitation: (a) All expenses or charges incurred by or on behalf of the Association for the management, maintenance, administration, insurance, operation, repairs, additions, alterations or reconstruction of the Common Area, Common Facilities or any portion of any Unit that the Association is obligated to maintain or repair, (b) all expenses or charges reasonably incurred to procure insurance for the protection of the Association and its Board of Directors, (c) any amounts reasonably necessary for reserves for maintenance, repair and replacement of the Common Areas and Common Facilities or any portion of any Unit that the Association is obligated to maintain or replace, and for nonpayment of any Assessments, and (d) the use of such funds to defray the costs and expenses incurred by the Association in the performance of its functions or in the proper discharge of the responsibilities of the Board as provided in the Governing Documents. Section 11. "Common Facilities" means the trees, hedges, plantings, lawns, shrubs, 1andscaping, walkways, driveways, fences, utilities, berms, pipes, lines, lighting fixtures, buildings, structures and/or other facilities constructed or installed, or to be constructed or installed, or currently located within the Common Area. . Section 12. "Condominium" means an estate in real property as described in the talifornia Civil Code Sections 783 and l351(f) consisting of an undivided interest as a tenant Vt common in all or any portion of the Common Area, together with a separate fee interest in a Unit and any other separate interests in the real property as are described in this Declaration, in the Condominium Plan, or in the deed conveying the Condominium. I Section 13. "Condominium Plan" means a condominium plan recorded pursuant to California Civil Code Section 1351(e) respecting the Project, and any amendments to the plan. I Section 14. "County" means the County of Los Angeles, State of California, and its ~arious departments, divisions, employees and representatives. Section 15. "Declarant" means Section 16. "Declaration" means this instrument, as it may be amended from time to time. Section 17. "Governing Documents" is a collective term that means and refers to all documents governing the Property, including this Declaration, the Articles, the Bylaws, and the Association Rules. Ii Section 18. "Improvements" includes, without limitation, the con~truction, installation, a.Jteration, or remodeling of any buildings, walls, decks, fences, landscapmg, landscape structures, antennas, utility lines, or any structure of any kind. 1-2 ~~w 0124 \ Section 19. "Member" means every person or entity who holds a membership in the Association and whose rights as a Member are not suspended pursuant to Article XIV, Section f> hereof. I Section 20. "Mortgage" means any security device encumbering all or any portion of the Property, including any deed of trust. "Mortgagee" shall refer to a beneficiary under a deed of trust as well as to a mortgagee in the conventional sense. I Section 21. '''Owner'' means any person, firm, corporation or other entity which owns k fee simple interest in any Condominium. The term "Owner" shall include the Declarant for fa long as the Declarant possesses any Condominium within the Property. ~ Section 22. "Owner of Record" and "Member of the Association" include any Owner d mean any person, firm, corporation or other entity in which title to a Condominium is ested as shown by the official records of the Office of the County Recorder. ~ Section 23. "Project" means the Property and the Improvements located thereon which e intended to create a condominium project as described in California Civil Code Section 1351(f). ~ Section 24. "Property" means all parcels of real property (Common Area and ondominium Units described in Recital "A" hereof), together with all buildings, structures, tilities, Common Facilities, and other improvements now located or hereafter constructed or stalled thereon, and all appurtenances thereto. I Section 25. "Regular Assessment" means an Assessment levied on an Owner and his pr her Condominium in accordance with Article IV, Section 2 hereof. I Section 26. "Single Family Residential Use" means occupation and use of a Unit for ~ingle family dwelling purposes in conformity with this Declaration and the requirements mposed by applicable zoning or other applicable laws or governmental regulations limiting the umber of persons who may occupy single family residential dwellings. I Section 27. "Special Assessment" means an assessment levied on an Owner and his or ~er Condominium in accordance with Article IV, Section 3 hereof. I Section 28. "Special Individual Assessment" means an Assessment made against an pwner and his or her Condominium in accordance with Article IV, Section 4 hereof. Section 29. "Subdivision Map" means the map for the Property referenced in Recital "A" of this Declaration. 1-3 ";i. 125 e Section 30. "Unit" means the elements of a Condominium that are not owned in common with the Owners of Condominiums in the Project; such Units and their respective boundaries being shown and particularly described in the Condominium Plan, deeds conveying Condominiums, and this Declaration. "Unit" does not include other interests in real property that are less than estates in real property, such as exclusive or nonexclusive easements. In interpreting deeds and plans, the existing physical boundaries of a Unit, or of a Unit reconstructed in substantial accordance with the original plan, shall be conclusively presumed to be its boundarie~, rather than the description expressed in the deed or Condominium Plan regardless of minor variance between boundaries shown on the Condominium Plan or in the deed and those of the building and regardless of settling or lateral movement of the building. Whenever reference to a Unit is made in this Declaration, in the Condominium Plan, in any deed, or elsewhere, it shall be assumed that such reference is made to the Unit as a whole, including each of its component elements. 1-4 l'Ut 1 2 6 '\ Article II Property Rights and Obligations of Owners , Section 1. Elements of Condominium. Ownership of each Condominium within the Iproject includes a Unit, an undivided interest in the Common Area, a membership in the Association, and any exclusive or nonexclusive easement or easements appurtenant to such Condominium over the Common Area as described in this Declaration, the Condominium Plan and the deed to the,Condominium. I )" Section 2. Owners' Nonexclusive Easements of Enjoyment. Every Owner shall have a nonexclusive right and easement of enjoyment in and to the Common areas within the Property, including ingress and egress to and from his or her Condominium, which shall be appurtenant to and shall pass with the title to every Condominium, subject to the following rights and restrictions: (a) The right of the Association to assign, rent, license, lease, charge reasonable admission and other fees for, and to otherwise designate and control the use of any unassigned parking and storage spaces within the Common Area. (b) The right of the Association to adopt Association Rules as provided in Article III, Section 7 hereof, regulating the use and enjoyment of the Property for the benefit and well-being of the Owners in common, and, in the event of the breach of such rules or any provision of any Governing Document by any Owner or Tenant, to temporarily suspend the voting rights and/or right to use the common facilities, other than roads, by any Owner and/or Owner's Tenants and guests. (c) The right of the Association, in accordance with its Articles and Bylaws, to borrow money for the purpose of improving the common area and common facilities and in aid thereof to mortgage said property; provided, however, that the rights of any such Mortgagee in said properties shall be subordinate to the rights of the Owners hereunder; and further provided that any such indebtedness shall be considered an expense of the Association ,for purposes of the Special Assessment provisions of Article IV, Section 3 hereof. (d) Each Unit shall have Exclusive Use Common Areas, as defined in the ICalifornia Civil Code Section 1351(i), consisting of one or more of the following: _ . The Exclusive Use Common Areas are set aside for the exclusive use and enjoyment of the Owners and occupants of the appurtenant Unit and the non- exclusive easements granted herein shall be subordinate to and shall not interfere with these exclusive easements. 11-1 ~~. 127 e e Section 3. Persons Subject to Governing Documents. All present and future Owners, tenants and occupants of a Unit within the Property shall be subject to, and shall comply with, each and every provision of the Governing Documents, as the same or any of them shall be amended from time to time, unless a particular provision is specifically restricted in its application to one or more of such classes of persons (i.e., Owners, tenants, invitees, etc.). The acceptance of a deed to any Condominium, the entering into a lease, sublease or contract or sale with respect;to any Unit, or the occupancy of any Unit shall constitute the consent and agreement of such Owner, tenant or occupant that each and all of the provisions of this Declaration, as the same or any of them may be amended from time to time, shall be binding upon said person and that said person will observe and comply with the Governing Documents. Section 4. Delegation of Use. Any Owner may delegate the Owner's rights to use and enjoy the Common Area and Common Facilities to members of the Owner's family or to the Owner's tenants or lessees who reside in the Owner's Unit, provided that any rental or lease may only be to a single family for Single Family Residential Use for a term of not less than thirty (30) days. Section 5. Obligations of Owners. Owners of Condominiums within the Property shall be subject to the following: (a) Owner's Duty to Notify Association of Tenants. Each Owner shall notify the secretary of the Association or the Association's property manager, if any, of the names of any tenant of the Owner's Condominium. Each Owner or tenant shall also notify the secretary of the Association of the names of all persons to whom such Owner or tenant has delegated any rights to use and enjoy the Property and the relationship that each person bears to the Owner or tenant. (b) Notification Regarding Governing Documents, (i) As more particularly provided in California Civil Code Section 1368, as soon as practicable before transfer of title with respect to any Condominium, the Owner thereof must give the prospective purchaser (A) a current copy of the Governing Documents; (B) the Association's most current financial statement; and (C) a true statement in writing from the Association ("delinquency statement") as to the amount of any delinquent Assessments, together with information relating to late charges, attorney's fees, interest, and reasonable costs of collection which, as of the date the statement is issued, are or may become a lien on the Condominium being sold. (ii) The Association shall, within 10 days of the mailing or delivery of a request for the information described in subparagraph (b)(i), above, provide the Owner with a 11-2 ~ ~ \) 1 2 8 \ copy of the current Governing Documents, together with the delinquency statement referred to in the immediately preceding paragraph. The Association shall be entitled to impose a fee for providing the Governing Documents and delinquency statement equal to (but not more than) the reasonable cost of preparing and reproducing the requested materials. (c) Payment of Assessments and Compliance With Rules. Each Owner shall pay when due each Regular, Special and Special Individual Assessment levied against the Owner and his or her Condominium and shall observe, comply with and abide by any and all rules and regulations set fortI) in, or promulgated by the Association pursuant to any Governing Document for the purpose of protecting the interests of all Owners or protecting the Common Area and Common Facilities. (d) Discharge of Assessment Liens. Each Owner shall promptly discharge any Assessment lien that may hereafter become a charge against his or her Condominium. (e) J()int Ownership of Condominiums. In the event of joint ownership of any Condominium, the obligations and liabilities of the multiple Owners under the Governing Documents shall be joint and several. Without limiting the foregoing, this subparagraph (e) shall apply to all obligations, duties and responsibilities of Owners as set forth in this Declaration, including, without limitation, the payment of all Assessments. (f) Prohibition on Avoidance of Obligations. No Owner, by non-use of the Common Area or Common Facilities, abandonment of the Owner's Condominium or otherwise may void the burdens and obligations imposed on such Owner by the Governing Documents, . eluding, without limitation, the payment of Assessments levied against the Owner and his or er Condominium pursuant to this Declaration. I (g) Termination of Obligations. Upon the conveyance, sale, assignment or other ~sfer of a Condominium to a new Owner, the transferor-Owner shall not be liable for any ~ssessments levied with respect to such Condominium which become due after the date of ecording of the deed evidencing said transfer and, upon such recording, all Association membership rights possessed by the transferor by virtue of the ownership of said ondominium shall cease. 11-3 b~~ 1 Z 9 Article III Homeowners Association Section 1. Creation of Association. The Owners of the Units shall constitute the association. , Section 2. Association Membership. Every Owner of a Condominium shall be a Member of the Ass9ciation. Each Owner shall hold one membership in the Association for each Condominium owned and the membership shall be appurtenant to such Condominium. Ownership of a Condominium or interest in it shall be the sole qualification for membership in the Association. Each Owner shall remain a Member of the Association until his or her ownership in all Condominiums in the Property ceases, at which time his or her membership in the Association shall automatically cease. Persons or entities who hold an interest in a !OndOminium merely as security for performance of an obligation are not Members until such . me as the security holder comes into title to the Condominium through foreclosure or deed in . eu thereof. 1 Section 3. Voting Rights of Members/Two Classes of Membership. The Association ~hall have two (2) classes of voting Membership: I (a) Class A. Class A Members shall be all Owners, with the exception of Declarant. ECh Unit shall be entitled to one vote for each Unit owned. When more than one person olds an interest in one Unit, all such persons shall be Members. The vote for such Unit shall e exercised as they among themselves determine, but in no event shall more votes than one .ote per Unit be cast with respect to any Unit. (b) Class B. Class B Members shall be the Declarant and shall be entitled to vote as ollows: Voting shall be the same as for Class A Membership, except that Class B Members ay triple their votes for each Unit owned. The Class B Memberships shall cease and be onverted to Class A Memberships on the happening of either of the following events, hichever occurs earlier: (i) When the total votes outstanding in Class A Memberships equal the total votes (tripled as stated above) outstanding in Class B Memberships, or (ii) On the second anniversary of the first conveyance of a subdivision interest in the development. ~ Approval of any action by the Association which must have the approval of a majority f the voting power of the Members of the Association, other than an action to enforce the bligations of the Declarant under any completion bond, shall require the vote or written 111-. laW 0130 ~sent Of. a bare majority of the Class B Members as well as the vote and written assent of a ~ajority! of the Class A Members. I Any action which may be taken by the vote of Members at a regular or special ~eeting, except the election of governing body Members where cumulative voting is a tequirement, may be taken without a meeting if done in compliance with the provisions of fection 7513 of the Corporation Code. ~ Any Owner; may attend and vote at such meeting in person, or by agent duly appointed y an instrument irt writing signed by the Owner and filed with the Board. Any such ppointment may be revoked at any time by written notice of the Owner of any Unit. Where "ere is more than one record Owner of a Unit, any or all of such persons may attend any meeting of the Association, but it shall be necessary for those Owners present to act unanimously in order to cast the vote to which they are entitled. I Voting rights attributable to subdivision interests shall not vest until assessments against those interests have been levied by the Association. . t Section 4. Assessments. The Association shall have the power to establish, fix and evy Assessments against the Owners of Condominiums within the Property and to enforce ayment of such Assessments in accordance with Article IV of this Declaration. Any Assessments levied by the Association on its Members shall be levied in accordance with and pursuant to the provisions of this Declaration. . ~ Section 5. Transfer of Memberships. Membership in the Association shall not be sferred, encumbered, pledged or alienated in any way, except upon the sale or ncumbrance of the Condominium to which it is appurtenant and then only to the purchaser. n the case of a sale, membership passes automatically to the purchaser upon recording of a deed evidencing transfer of title to the Condominium. In the case of an encumbrance of such Condominium, a Mortgagee does not have membership rights until he or she becomes an Owner by foreclosure or deed in lieu thereof. Tenants who are delegated rights of use pursuant to Article II, Section 3 hereof do not thereby become Members, although the tenant and Members of the tenant's family shall, at all times, be subject to the provisions of all Governing Documents. Any attempt to make a prohibited transfer is void. In the event the Owner of any Condominium should fail or refuse to transfer the membership registered in the Owner's name to the purchaser of his or her Condominium, the Association shall have the tight to record the transfer upon its books and thereupon any other membership outstanding inrthe name of the seller shall be null and void. . III -2 ~. 0131 Section 6. Powers and Authority of the Association. (a) Powers Generally. The Association shall have the responsibility of managing and maintaining the Common Areas and Common Facilities and discharging the other duties and responsibilities imposed on the Association by the Governing Documents. In the discharge of such responsibilities and duties, the Association shall have all of the powers of a nonprofit mutual benefit corporation organized under the laws of the State of California in the ownership d management of its properties and the discharge of its responsibilities hereunder for the benefit of its Members, subject only to such limitations upon the exercise of such powers as are expressly set f6rth in the Governing Documents. The Association and its Board of irectors shall have the power to do any and all lawful things which may be authorized, equired or permitted to be done under and by virtue of the Governing Documents, and to do d perform any and all acts which may be necessary or proper for, or incidental to, the xercise of any of the express powers of the Association for the peace, health, comfort, safety r general welfare of the Owners. The specific powers of the Association and the limitations hereon shall be as set forth in Section 8 of the Bylaws. I (b) Association's Limited Right of Entry. The Association, and/or its agents shall have the right, when necessary, to enter any Unit to perform the Association's obligations under this peclaration, including (i) exterior maintenance or repair obligations with respect to buildings f?ntaining Units; (ii) obligations to enforce the architectural rules of Article V hereof; (iii) any obligations with respect to construction, maintenance and repair of adjacent Common Facilities; or (iv) to make necessary repairs that an Owner has failed to perform which, if left ~ndone, will pose a threat to, or cause an unreasonable interference with, Association property r the Owners in common. The Association's rights of entry under this subparagraph (b) shall e immediate in case of an emergency originating in or threatening the Unit where entry is ~equired, or any adjoining Unit or Common Area, and the Association's work may be performed under such circumstances whether or not the Owner or his or her lessee is present. In all nonemergency situations, the Association or its agents shall furnish the Owner or his or ~er lessee with at least 24 hours' written notice of its intent to enter the Unit, specifying the urpose and scheduled time of such entry and shall make every reasonable effort to perform its ork and schedule its entry in a manner that respects the privacy of the persons residing within he Unit. (c) Association as Attorney-in-Fact for Owners. Without limiting the generality of the oregoing, the Association is hereby irrevocably appointed as the attorney-in-fact for the wners of each and every Unit to (i) manage, control and deal with the interest of such wners in the Common Area so as to permit the Association to fulfill all of its duties and bligations hereunder and to exercise all of its rights hereunder; (ii) deal with the Property upon its destruction or obsolescence as hereinafter provided; and (Hi) deal with and handle fnsurance and insurance proceeds, as provided in Article IX hereof, and condemnation and fondemnation awards, as provided in Article XI hereof. The acceptance by any person or 111-3 ~. 0132 . e entity of any interest in any Unit shall constitute an appointment of the Association as the Owner's attorney-in-fact as provided above. Section 7. Association Rules. (a) Rule-Making Power. The Board may, from time to time and subject to the provisions of this Declaration, propose, enact and amend rules and regulations of general application to the Owners of Condominiums within the Property. Such rules may concern, but need not be limited. to (i) matters pertaining to the maintenance, repair, management and use of the Common Area and Common Facilities by Owners, their tenants, guests and invitees, or any other person(s) who have rights of use and enjoyment of such Common Area and Common Facilities; (ii) architectural control and the rules of the Architectural Committee under Article V hereof; (iii) the conduct of disciplinary proceedings in accordance with Article XIV hereof; (iv) regulation of parking, pet ownership and other matters subject to regulation and restriction under Article VI hereof; (v) collection and disposal of refuse; (vi) minimum standards for the maintenance of landscaping or other improvements located within any Exclusive Use Common Areas and (vii) any other subject or matter within the jurisdiction of the Association as provided in the Governing Documents. Notwithstanding the foregoing grant of authority, the Association Rules shall not be inconsistent with or materially alter any provision of the other Governing Documents or the rights, preferences and privileges of Members thereunder. In the event of any material conflict between any Association Rule and any provision of the other Governing Documents, the conflicting provisions contained in the other Governing Documents shall be deemed to prevail. I (b) Distribution of Rules. A copy of the Association Rules, as they may from time to ltime be adopted, amended or repealed, shall be mailed or otherwise delivered to each Owner. A copy of the Association Rules shall also be available and open for inspection during normal business hours at the principal office of the Association. i (c) Adoption and Amendment of Rules. Association Rules may be adopted or amended !from time to time by majority vote of the Board, provided, however, that no Association Rules or amendments thereto shall be adopted by the Board until at least 30 days after the proposed rule or rule amendment has been (i) published in the Association newsletter, if any, or otherwise communicated to the Owners in writing and (ii) posted in the Association's principal office. The notice describing the proposed rule or amendment shall also set forth the date, time and location of the Board meeting at which action on the proposal is scheduled to be taken. Any duly adopted rule or amendment to the Rules shall become effective immediately following the date of adoption thereof by the Board, or at such later date as the Board may III -4 ~ll!f 0133 e . deem appropriate. Any duly adopted rule or rule amendment shall be distributed to the Owners by mail. Section 8. Breach of Rules or Restrictions. Any breach of the Association Rules or of any other Governing Document provision shall give rise to the rights and remedies set forth in Article XIV hereOf. Section 9. Limitation on Liability of Association I s Directors and Officers. (a) Claims Regarding Breach of Duty. No director or officer of the Association (collectively and individually referred to as the "Released Party") shall be personally liable to any of the Association's Members, or to any other person, for any error or omission in the discharge of their duties and responsibilities or for their failure to provide any service required hereunder or under the Bylaws, provided that such Released Party has, upon the basis of such information as may be possessed by the Released Party, acted in good faith, in a manner that such person 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. Without limiting the generality of the foregoing, this standard of care and limitation of liability shall extend to such matters as the establishment of the Association's annual financial budget, the funding of Association capital replacement and reserve accounts, repair and maintenance of Common Areas and Common Facilities and enforcement of the Governing Documents. II (b) Other Claims Involving Tortious Acts and Property Damage. No Released Party ~hall be responsible to any Owner or to any member of his or her family or any of his or her tenants, guests, servants, employees, licensees, invitees or any other person for any loss or damage suffered by reason of theft or otherwise of any Article, vehicle or other item of personal property which may be stored by such Owner or other person within any Unit or Exclusive Use Common Area or for any injury to or death of any person or loss or damage to the property of any person caused by fire, explosion, the elements or any other Owner or person within the Property, or by any other cause, unless the same is attributable to his or her own willful or wanton act or gross negligence. It is the intent of this subparagraph to provide volunteer directors and officers with protection from liability to the full extent permitted by €alifornia Civil Code Section 1365.7, or comparable superseding statute, and to the extent this provision is inconsistent with said Section, the Civil Code shall prevail. III - 5 ~- 0134 Article IV Assessments Section 1. Assessments Generally. I (a) Covenant to Pay Assessments. Each Owner of one or more Condominiums, by ~ceptance of a deed or other conveyance therefor (whether or not it shall be so expressed in uch deed or conveyance), covenants and agrees to pay to the Association (i) Regular . ssessments, (ii) Special Assessments, and (iii) Special Individual Assessments. Each such ~ssessment shall be established and collected as hereinafter provided. l (b) Extent of Owner's Personal Obligation for Assessments. All Assessments, together ith late charges, interest, and reasonable costs (including reasonable attorney's fees) for the collection thereof, shall be a debt and a personal obligation for the Person who was the Owner of the Condominium at the time the Assessment was levied. Each Owner who acquires title to a Condominium (whether at judicial sale, trustee's sale or otherwise) shall be personally liable only for Assessments attributable to the Condominium so purchased which become due and payable after the date of such sale, and shall not be personally liable for delinquent ~ssessments of prior Owners unless the new Owner expressly assumes the personal liability . ny unpaid Assessment of a previous Owner shall remain the debt of such previous Owner gainst whom assessed. (c) Creation of Assessment Lien. All Assessments, together with late charges, interest, d reasonable costs (including reasonable attorney's fees) for the collection thereof, shall be a harge on the Condominium and shall be a continuing lien upon the Condominium against hich such Assessment is made. Regular assessments commence on the first of the month ollowing the conveyance of the first unit in this project to a purchaser. Any lien for unpaid ssessments created pursuant to the provisions of this Article may be subject to foreclosure as rovided in Article IV, Section 9(b) hereof. (d) No Avoidance of Assessment Obligations. No Owner may exempt himself or erself from personal liability for Assessments duly levied by the Association, nor release the ondominium or other property owned by him or her from the liens and charges hereof, by aiver of the use and enjoyment of the Common Area or any facilities thereon or by bandonment or non-use of his or her Condominium or any other portion of the Property. Section 2. Regular Assessments. ~ (a) Preparation of Annual Budget. Establishment of Regular Assessments. Not less han 45 nor more than 60 days prior to the beginning of the Association's fiscal year, the oard shall estimate the total amount required to fund the Association's anticipated Common IV- H'It 135 e . Expenses for the next succeeding fiscal year (including additions to any reserve fund established to defray the costs of future repairs, replacement or additions to the Common Facilities) by preparing and distributing to all Association Members a budget satisfying the requirements of Section 8.02 of the Bylaws. If the Board fails to distribute the budget for any fiscal year within the time period provided for in this Section, the Board shall not be permitted to increase Regular Assessments for that fiscal year unless the Board first obtains the approval of Owners, constituting a quorum, casting a majority of the votes at a meeting or election of the Association conducted in accordance with the Bylaws. (b) Establishment of Regular Assessment by Board of Membership Approval Requirements. The total annual expenses estimated in the Association's budget (less projected income from sources other than assessments) shall become the aggregate Regular Assessment for the next succeeding fiscal year, provided that, except as provided in subparagraph (a) above, and subparagraph (c) below, the Board of Directors may not impose a Regular Assessment that is more than 20 percent greater than the Regular Assessment for the Association's immediately preceding fiscal year without the vote or written assent of Members, constituting a quorum, casting a majority of the votes at a meeting or election of the Association (see Article IV, Section 7, below). (c) Assessments to Address Emergency Situations. The requirement of a membership vote to approve Regular Assessment increases in excess of 20 percent of the previous year's Regular Assessment shall not apply to assessment increases necessary to address emergency situations. For purposes of this subparagraph (c), an emergency situation is any of the following: (i) An extraordinary expense required by an order of court. (ii) An extraordinary expense necessary to repair or maintain the Common Areas, Common Facilities or any portion of the separate interests which the Association is obligated to maintain where a threat to personal safety is discovered. (iii) An extraordinary expense necessary to repair or maintain the Common Areas, Common Facilities or any portion of the separate interests which the Association is obligated to maintain that could not have been reasonably foreseen by the Board in preparing and distributing the budget pursuant to subparagraph (a) above, provided that, prior to the imposition or collection of an assessment under this paragraph (iii), the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expense involved and why the expense was not or could not have been reasonably foreseen in the budgeting process. The Board's resolution shall be distributed to the Members together with the notice of assessment. IV-2 ~* 0136 e e (d) Reserve Funds. (i) The governing body shall not expend funds designated as reserve funds for any purpose other than: (A) The repair, restoration, replacement or maintenance of major components for which the Association is obligated and for which the reserve fund was established, or (B) Litigation involving the purposes set for in (A) above. body: (ii) Notwithstanding the provisions of (i) (A) and (i)(B) above, the governing (A) May authorize the temporary transfer of money from the reserve account to the Association's operating account to meet short term cash flow requirements or other expenses. (B) Shall cause the transferred funds to be restored to the reserve account within three years of the date of the initial transfer; however, the governing body may, upon making a documented finding that a delay of restoration of the funds to the reserve account would be in the best interests of the development, delay the restoration until such time it reasonably determines to be necessary. (C) Shall exercise prudent fiscal management in delaying restoration of the transferred funds to the reserve account and shall, if necessary, levy a special assessment to recover the full amount of the expended funds within the time limits specified in (B) above. Such special assessments shall be subject to the limitations specified in Civil Code Section 1366. (iii) The governing body shall do all of the following: (A) At least once every three years, cause a study to be conducted of the reserve account requirements, if the current replacement value of the major components which the Association is obligated to repair, replace, restore or maintain is equal to or greater than one-half of the gross budget for any fiscal year. (B) Annually review the reserve account study and shall consider and implement necessary adjustments to its analysis of the reserve account requirements as a result of that review. (C) Cause the reserve account study to include at a minimum: (1) Identification of the major components which the Association is obligated to repair, replace, restore or maintain which, as of the date of the study, have a remaining useful life of less than 30 years. (2) Identification of the probably remaining useful life of the components identified in (1) above as of the date of the study. IV-3 ~" 0137 (3) An estimate of the cost of repair, replacement, restoration or maintenance of each major component identified in (1) above during and at the end of its useful life. (4) An estimate of the total annual contribution necessary to defray the cost to repair, replace, restore or maintain each major component during and at the end of its useful life, after subtracting total reserve funds as of the date of the study. For purposes of this subsection (iii), the term "reserve account requirements" means the estimated funds which the Association's governing body has determined are required to be available at a specified point in time to repair, replace or restore those major components which the Association is obligated to maintain. *' (e) Allocation of Regular Assessment. The total estimated Common Expenses, d termined in accordance with subparagraph (a), above, shall be allocated among, assessed a ainst, and charged to each Owner according to the ratio of the number of Condominiums ithin the Property owned by the assessed Owner to the total number of Condominiums subject to Assessments so that each Condominium bears an equal share of the total Regular Assessment. (f) Assessment Roll. That portion of the estimated Common Expenses assessed against d charged to each Owner shall be set forth and recorded in an Assessment Roll which shall b maintained and available with the records of the Association and shall be open for . spection at all reasonable times by each Owner or his or her authorized representative for y purpose reasonably related to the Owner's interest as a property Owner or as a Member of t e Association. The Assessment roll (which may be maintained in the form of a computer p 'ntout) shall show for each Condominium the name and address of the Owner of Record, all gular, Special and Special Individual Assessments levied against each Owner and his or her ondomillium, and the amount of such Assessments which have been paid or remain unpaid. e delinquency statement required by Article II, Section 5(b) hereof shall be conclusive upon t e Association and the Owner of such Condominium as to the amount of such indebtedness appearing on the Association's Assessment roll as of the date of such statement, in favor of all persons who rely thereon in good faith. (g) Mailing Notice of Assessment. The Board of Directors shall mail to each Owner at t e street address of the Owner's Condominium, or at such other address as the Owner may f om time to time designate in writing to the Association, a statement of the amount of the gular Assessment for the next succeeding fiscal year no less than 30 nor more than 60 days p . or to the beginning of the next fiscal year. IV-4 <4~ 138 I (h) Failure to Make Estimate. If, for any reasons, the Board of Directors fails to make ah estimate of the Common Expenses for any fiscal year, then the Regular Assessment made fCl>r the preceding fiscal year, together with any Special Assessment made pursuant to Article IV, Section 3 (a) (i) for that year, shall be assessed against each Owner and his or her qondominium on account of the then current fiscal year, and installment payments (as hbreinafter provided) based upon such automatic Assessment shall be payable on the regular p~yment dates established by the Association. I. (i) Installmel}t Payment of Assessments. The Regular Assessment levied against each Owner and his or her Condominium shall be due and payable in advance to the Association in equal monthly installments on the first day of each month or on such other date or dates as may be established from time to time by the Association's Board of Directors. Installments of Regular Assessments shall be delinquent if not paid by the ISth day of the month in which the ssessment is due. The collection of Regular Assessments in installments as hereinabove p ovided is for the convenience of the Association only. The total Regular Assessment is I vied as of the commencement of the Association's fiscal year and in the event of a default in t e payment of any installment, the Association may declare the entire balance of the Regular ssessment to be in default and pursue the remedies set forth in Article IV, Section 9, below, a to said delinquency. Section 3. Special Assessments. ~ (a) Purposes for Which Special Assessments May Be Levied. Subject to the embership approval requirements set forth in subparagraph (b) below, the Board of Directors s all have the authority to levy Special Assessments against the Owners and their ondominiums for the following purposes: (i) Regular Assessment Insufficient in Amount. If, at any time, the Regular ssessment for any fiscal year is insufficient in amount due to extraordinary expenses not c ntemplated in the budget prepared for said fiscal year, except as prohibited by Article IV, S tion 2(a), the Board of Directors shall levy and collect a Special Assessment, applicable to t e remainder of such year only, for the propose of defraying, in whole or in part, any deficit hich the Association may incur in the performance of its duties and the discharge of its o ligations hereunder. The Board's assessment authority pursuant to this Section 3 s bparagraph (a)(i) shall be subject to membership approval requirements under the c rcumstances described in Article IV, Section 2(a). ~ (ii) Capital Improvements. The Board may also levy Special Assessments for a ditio....nal capital improvements within the Common Area (i.e., improvements not in existence o the date of this Declaration that are unrelated to repairs for damage to, or destruction of, t e existing Common Facilities). The Special Assessment power conferred hereunder is not irltended to diminish the Board's obligation to plan and budget for normal maintenance, and IV-S ~'" 0139 replacement repair of the Common Area or existing Common Facilities through Regular ^ssessments (including the funding of reasonable reserves) and to maintain adequate insurance fn the Common Area and existing Common Facilities in accordance with Article IX hereof. i (b) Special Assessments Requiring Membership Approval. No Special Assessments ~escribed in (i) Section 3(a) hereof, which in the aggregate exceed 5 percent of the budgeted gross expenses of the Association for the fiscal year in which the Special Assessment(s) is ~evied; or (ii) in the last sentence of Article IV, Section 2(a), shall be made without the vote or -tvritten assent of ~embers, constituting a quorum, casting a majority of the votes at a meeting ~. r election of the Association, provided that this membership approval requirement shall not pply to any Special Assessment levied to address "emergency situations" as defined in this rticle IV, Section 2(c). i (c) Allocation and Payment of Special Assessments. When levied by the Board or ~pproved by the Members as provided above, the Special Assessment shall be divided among, assessed against and charge to each Owner and his or her Condominium in the same manner prescribe for the allocation of Regular Assessments pursuant to Article IV, Section 2(e), above. The Special Assessment so levied shall be recorded on the Association's Assessment roll and notice thereof shall be mailed by first class mail to each Owner. I Special Assessments for purposes described in this Section 3 (a) (i) shall be due as a $eparate debt of the Owner and a lien against his or her Condominium, and shall be payable to ~e Association in equal monthly installments during the remainder of the then current fiscal year. Special Assessments for purposes described in this Section 3(a)(ii) shall be due as a Separate debt of the Owner and a lien against his or her Condominium, and shall be payable in full to the Association not less than 30 days nor more than 60 days after the mailing of such ,otice. Section 4. Special Individual Assessments. I (a) Circumstances Giving Rise to Special Individual Assessments. In addition to the Special Assessments levied against all Owners in accordance with for in Section 3, above, the ~ard of Directors may impose Special Individual Assessments against an Owner in any of the ~ircumstances described in subparagraphs (i) through (ii) below, provided that no Special Individual Assessments may be imposed against an Owner pursuant to this Section 4 until the Owner has been afforded the notice and hearing rights to which the Owner is entitled pursuant to Article XIV, Section 6 hereof, and, if appropriate, has been given a reasonable opportunity ~o comply voluntarily with the Association's Governing Documents. Subject to the foregoing, the acts and circumstances giving rise to liability for Special Individual Assessments include the following: IV-6 t!tw 0140 tit - (i) Damage to Common Area or Common Facilities. In the event that any damage to, or destruction of, any portion of the Common Area or the Common Facilities. including any portion of the Unit which the Association is obligated to repair and maintain is caused by the willful misconduct or negligent and act or omission of any Owner, any member of his or her family, or any of his or her tenants, guests, servants, employees, licensees or invitees, the Board shall cause the same to be repaired or replaced, and all costs and expenses incurred in connection therewith (to the extent not compensated by insurance proceeds) shall be assessed and charged solely to and against such Owner as a Special Individual Assessments. I (ii) Expenses Incurred in Gaining Member Compliance. In the event that the Association incurs any costs or expenses, to accomplish (A) the payment of delinquent Assessments, (B) any repair, maintenance or replacement to any portion of the Property that the Owner is responsible to maintain under the Governing Documents but has failed to undertake or complete in a timely fashion, or (C) to otherwise bring the Owner and/or his or ~er Condominium into compliance with any provision of the Governing Documents, the amount incurred by the Association (including reasonable fines and penalties duly imposed hereunder, title company fees, accounting fees, court costs and reasonable attorneys' fees) shall be assessed and charged solely to and against such Owner as a Special Individual Assessment. (b) Levy of Special Individual Assessments and Payment. Once a Special Individual Assessment has been levied against an Owner for any reason described, and subject to the conditions imposed, in this Section 4(a), such Special Individual Assessment shall be recorded dn the Association I s Assessment roll, notice thereof shall be mailed to the affected Owner and t~e Special Individual Assessment shall thereafter be due as a separate debt of the Owner payable in full to the Association within 30 days after the mailing of notice of the Assessment. ~ monetary penalty imposed by the Association as a disciplinary measure for failure of a member to comply with the governing instruments or as a means of reimbursing the Association for costs incurred by the Association in the repair of damage to common areas and fficilities for wich the Owner was allegedly responsible or in bringing the Owner and his unit into compliance with the governing instruments is not an assessments which may become a lien against the Owner's Unit enforceable by the sale of the Unit. I Section 5, Purpose and Reasonableness of Assessments. Each Assessment made in accordance with the provisions of this Declaration is hereby declared and agreed to be for use dxclusively (a) to promote the recreation, health, safety and welfare of individuals residing \fithin the Property; (b) to promote the enjoyment and use of the Property by th~ Owners and their families, tenants, invitees, licensees, guests and employees; and (c) to prOVIde for the r~pair, maintenance, replacement and protection of the Common Area and Common Facilities. Each and every Assessment levied hereunder is further declared and agreed to be a rbsonable Assessment, and to constitute a separate, distinct and personal obligation (with IV-7 ~. 141 respect to which a separate line may be created hereby) of the Owner of the Condominium ~gainst .which the. Assessment is imposed that shall be binding on the Owner's heirs, successors ~d assIgns, provIded that the personal obligation of each Owner for delinquent Assessments ~hall no~ pass to the Owner's successors in title unless expressly assumed by them. Section 6. Exemption of Certain of the Property From Assessments. The following teal property subject to this Declaration shall, unless devoted to use as a residential dwelling, be exempt from the Assessments and the lien thereof provided herein: (a) Any portion of the Property dedicated and accepted by a local public authority; (b) The Common Area and Common Facilities; and (f) Any Condominium owned by the Association. I Section 7. Notice and Procedure for Member Approval Pursuant to Section 2 and 3. Ih the event that Member approval is required in connection with any increase or imposition of ssessments pursuant to Section 2 and 3 of this Article IV, approval of the requisite rcentage of the Members shall be solicited either by written ballot conducted in accordance ith Corporations Code Section 7613 and Section 5 of the Bylaws or at a meeting of the embers called for that purpose, duly noticed in accordance with Section 5 of the Bylaws. e quorum required for such membership action shall be fifty-one percent (51 %) of the embers. Section 8. Maintenance of Assessment Funds. (a) Bank Accounts. All sums received or collected by the Association for Assessments, together with any interest or late charges thereon, shall be promptly deposited in Ie or more insured checking, savings, or moneymarket accounts in a bank or savings and I an association selected by the Board of Directors which has offices located within the State f California, County of Los Angeles. In addition, the Board shall be entitled to make prudent i vestment of reserve funds in insured certificates of deposit, money market funds or similar investments consistent with the investment standards normally observed by trustees. The ~oard, and such officers or agents of the Association as the Board shall designate, shall have e~clusive control of said account(s) and investments and shall be responsible to the Owners for the maintenance at all times of accurate records thereof. The withdrawal of funds from Association accounts shall be subject to the minimum signature requirements imposed by qalifornifl Civil Code Section 1365.5. I To preclude a multiplicity of bank accounts, the proceeds of all Assessments may be cpmmingled in one or more accounts and need not be deposited in separate accounts so long as t~e separate accounting records described herein are maintained. Any interest received on s ch deposits shall be credited proportionately to the balances of the various Assessment fund a counts maintained on the books of the Association as provided in subparagraph (b), below. IV-8 ~i. 142 e (b) Separate Accounts: Commingling of Funds. Except as provided below, the proceed~ of each Assessment shall be used only for the purpose for which such Assessment was made, and such funds shall be received and held in trust by the Association for such purpose. Notwithstanding the foregoing, the Board, in its discretion, may make appropriate adjustments among the various line items in the Board's approved general operating budget if the Board determines that it is prudent and in the best interest of the Association and its Members to make such adjustments. If the proceeds of any Special Assessment exceed the ~ount required to ~ccomplish the purpose for which such Assessment was levied, such surplus may, in theJBoard's discretion, be returned proportionately to the contributors thereof, reallocat~ among the Association's reserve accounts if any such account is, in the Board's opinion, underfunded or credited proportionately on account of the Owners' future Regular Assessment obligations. For purposes of accounting, but without requiring any physical segregation of assets, the Association shall maintain a separate accounting of all funds received by it in payment of each Assessment and of all disbursements made therefrom, provided that receipts and disbursements of Special Assessments made pursuant to this Article IV, Section 3 (a) (i) shall be accounted for together with the receipts and disbursements of Regular Assessments; and separate liability accounts shall be maintained for each capital improvement for which reserve ~unds for replacement are allocated. Unless the Association is exempt from federal or state lflXes, all sums allocated to capital replacement funds shall be accounted for as contributions to the capital of the Association and as trust funds segregated from the regular income of the +ssociation or in any other manner authorized by law or regulations of the Internal Revenue Service and the California Franchise Tax Board that will prevent such funds from being taxed as income of the Association. Section 9. Collection of Assessments; Enforcement of Liens. 1 (a) Delinquent Assessments. If any installment payment of a Regular Assessment or l~mp su~ or installment payment of any Special Assessment or Special Individual Assessment assessed to any Owner is not paid within 15 days after the same becomes due, such payment shall be delinquent and the amount thereof may, at the Board's election, bear interest at the maximum rate allowed by law from and after the due date until the same is paid. In addition tb the acCrual of interest, the Board of Directors is authorized and empowered to promulgate a sphedule lof reasonable late charges for any delinquent Assessments, subject to the limi~tions imposed ~y California Civil Code Sections 1366(c) and 1366.1 or comparable supersedmg statutes. I IV-9 "1 · \) 1 4 3 It ~) Effect of Nonpayment of Assessments. (i) Creation and Imposition of a Lien for Delinquent Assessments. As more articul ly provided in California Civil Code Section 1367 or comparable superseding statute, he amo nt of any delinquent Regular or Special, or Special Individual Assessment, together ith an late charges, interest and costs (including reasonable attorneys' fees) attributable hereto r incurred in the collection thereof, shall become a lien upon the Condominium of the assessed only when the Association causes to be recorded in the Office of the ecorder of the County, a Notice of Delinquent Assessment executed by an authorized eprese tive of the Association, setting forth (A) the amount of the delinquent Assessment(s) d oth r sums duly imposed pursuant to this Article IV and California Civil Code Section 366, ) the legal description of the Owner's Condominium against which the Assessments d oth r sums are levied, (C) the name of the Owner of Record of such Condominium, (D) the nam and address of the Association, and (E) the name and address of the trustee authori by the Association to enforce the lien by sale. Upon payment in full of the sums specifi in the Notice of Delinquent Assessment, the Association shall cause to be recorded a further otice stating the satisfaction and release of the lien thereof. (ii) Remedies Available to the Association to Collect Assessments. The Associ tion may initiate legal action against the Owner personally obligated to pay the delinqu nt Assessment, foreclose its lien against the Owner's Condominium or accept a deed in lieu f foreclosure. Foreclosure by the Association of its lien may be by judicial foreclo ure or by nonjudicial foreclosure by the trustee designated in the Notice of Delinquent Assess ent or by a trustee substituted pursuant to Califomia Civil Code Section 2934a. Any sale of Condominium by a trustee acting pursuant to this Section 9 shall be conducted in accord ce with California Civil Code Sections 2924, 2924b and 2924c applicable to the exercis of powers of sale in mortgages or deeds of trust. (iii) Nonjudicial Foreclosure. Nonjudicial foreclosure shall be commenced by he Ass ciation by recording in the Office of the County Recorder a Notice of Default, which otice s all state all amounts which have become delinquent with respect to the Owner's ondo 'nium and the costs (including attorneys' fees), penalties and interest that have accrued hereon, the amount of any Assessment which is due and payable although not delinquent, a egal de cription of the property with respect to which the delinquent Assessment is owed, and he nam of the Owner of Record or reputed Owner thereof. The Notice of Default shall state he elec on of the Association to sell the Condominium or other property to which the ounts relate and shall otherwise conform with the requirements for a notice of default under aliforn a Civil Code Section 2924c, or comparable superseding statute. The Association shall ave th rights conferred by California Civil Code Section 2934a to assign its rights and bligati ns as trustee in any nonjudicial foreclosure proceedings to the same extent as a trustee esignat under a deed of trust and for purposes of said Section 2934a, the Association shall e dee to be the sole beneficiary of the delinquent Assessment obligation. Furthermore, in IV -10 .... i 144 j. eu of an assignment of trusteeship, the Association shall be entitled to employ the services of title insurance company or other responsible company authorized to serve as a trustee in onjudicial foreclosure proceedings to act as an agent on behalf of the Association in ommencing and prosecuting any nonjudicial foreclosure hereunder. The Association or its assignee shall mail a copy of the Notice of Default to the Owner r reputed Owner of the subject Condominium at the Owner's last address appearing on the ooks or records of the Association, and to any person to whom the giving of a notice of efault is required by applicable provisions of California Civil Code Section 2924b, ollowing receipt of the Association's notice, the Owner and junior encumbrances shall have instatement rights identical to those provided by law for trustors or mortgagors, which rights ust be exercised during the period specified by law for reinstatement of obligations secured y deeds of trust. After the lapse of such time as may then be required by law following the ecording of a Notice of Default under a deed of trust, the Association or its assignee may give otice of Sale in the manner and for the period required in the case of deeds of trust. After e giving of the Notice of Sale, the Association, or its assignee, without demand on the Owner, may sell the Condominium at the time and place fixed in the Notice of Sale, at public uction to the highest bidder. At the Trustee's sale, the Trustee shall have he right to require every bidder to show evidence of his or her final bid in cash or a ank savings and loan certified check and to require the last and highest bidder to deposit the ull amount of his or her final bid in case or a bank savings and loan association certified heck. The Association or its assignee may postpone the noticed sale by public announcement t such time and place of sale, and from time to time thereafter may postpone such sale by ublic announcement at the time fixed by the preceding postponement. The Association shall eliver to the purchaser at such foreclosure sale the Association's deed conveying the ondominium so sold, but without covenant or warranty, express or implied. The recitals in uch deeds shall be conclusive proof of the truthfulness thereof. Any person, including the ssociation, may bid on the subject property and purchase the same at such sale. After educting from the sale proceeds all costs, fees, and expenses incurred by the Association, the et proceeds shall be applied to the payment of all sums secured by the Association's lien at he time of sale, including interest, costs and attorney's fees, and the remainder, if any, shall e disbursed to the person or persons legally entitled thereto. (iv) Actions for Money Judgment. In the event of a default in payment of any ssessment, the Association, in its name but acting for and on behalf of all other Owners, may nitiate legal action, in addition to any other remedy provided herein or by law, to recover a oney judgment or judgments for unpaid Assessments, costs and attorneys' fees without oreclosure or waiver of the lien securing same. ~ Section 10. Transfer of Condominium by Sale or Foreclosure. Except as otherwise rovided herein, the sale or transfer of any Condominium shall not affect any Assessment lien uly recorded with respect to such Condominium prior to the sale or transfer. However, the IV-II ~lilII 0145 e or transfer of any Condominium pursuant to the foreclosure of any first Mortgage or other ortgage or lien recorded prior to the Association's Assessment lien (collectively "prior ncumbrance") shall extinguish the lien of such Assessments as to payments which become due rior to such sale or transfer. No sale or transfer of a Condominium as the result of oreclosure, exercise of a power of sale or otherwise shall relieve the new Owner of such ondominium, whether it be the former beneficiary of the first Mortgage or other prior ncumbrance of a third party from liability for any Assessments thereafter becoming due or rom the lien thereof. 5 Where the Hrst Mortgagee or other purchaser of a Condominium obtains title to the e as a result of foreclosure of any such first Mortgage or other prior encumbrance or xercise'of a power of sale contained therein, the person acquiring title, his or her successors d assigns, shall not be solely liable for the Assessments chargeable to such Condominium hich became due prior to the acquisition of title. Instead, such unpaid Assessments shall be eemed to be Common Expenses collectible from the Owners of all of the Condominiums, ncluding such acquirer, his or her successors and assigns. Furthermore, foreclosure shall not fect the Association's right to maintain an action for the collection of delinquent Assessments gainst the foreclosed party personally. Section 11. Priorities. When a Notice of Delinquent Assessment has been recorded, uch notice shall constitute a lien on the Condominium prior and superior to all other liens or ncumbrances recorded subsequent thereto, except (a) all taxes, bonds, assessments and other evies which, by law, would be superior thereto, and (b) the lien or charge of any first ortgage of record (meaning any recorded Mortgage or deed of trust with first priority over ~ther Mortgages or deeds of trust) made in good faith and for value, provided that such *ubordination shall apply only to the Assessments which have become due and payable prior to ~he transfer of such property pursuant to the exercise of a power of sale or a judicial foreclosure involving a default under such first Mortgage or deed of trust, or other prior ~ncumbrance. g Section 12. Unallocated Taxes. In the event that any taxes are assessed against the ommon Area, or the personal property of the Association, rather than being assessed to the ondominiums, such taxes shall be included in the Regular Assessments imposed pursuant to ~his Article IV, Section 2 and, if necessary, a Special Assessment may be levied against the ~ondominiums in an amount equal to such taxes to be paid in two installments, thirty days prior to the due date of each tax installment. I Section 13. Assignment of Rents. Each Owner does hereby presently assign to the Association, absolutely and regardless of possession of the property, all rents and other monies now due or hereafter to become due under any lease or agreement or otherwise for the use or <l>Ccupation of any or all parts of any Condominium owned by the Owner, now existing or hereafter made for the purpose of collecting all Assessments due the association pursuant to IV -12 ~ - \., 14 6