Recorded In Official Records, County ol San Bernardino
RECORDING REQUESTED BY: ~:c:·•!~.--,~ LA~RY WALKER
6/27/2007
8:00 AM
MD
Vf~. • "" · Auditor/Controller - Recorder
' 803 LandAmerica Commonwealth
LandAmerica Commercial Services Doc#: 2007 - 0380257 Titles: 1 Pages:
Fees 206.00
WHEN RECORDED, MAIL TO:
Taxes 0.00
Other 0.00
PAID $206.00
DZIDA, CAREY & STEINMAN (SDH)
3 Park Plaza, Suite 750
Irvine, CA 92614
(Space Above For Recorder's Use)
DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND RESERV AT.ION
OF EASEMENTS FOR
WATERMAN BUSINESS CENTER
NOTICE: THIS DOCUMENT REQUIRES THAT OWNERS AND THE ASSOCIATION
RESOLVE ALL DISPUTES WITH THE DECLARANT AND ITS AFFILIATES THROUGH ARBITRATION AND NOT BY A JURY TRIAL.
SDH\30447.0001\361227.7 6/7/2007
67 DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND RESERVATION
OF EASEMENTS FOR
WATERMAN BUSINESS CENTER
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; INTERPRETATION ........................................................................ 2
1.1. Definitions ................................................................................................................ 2
1.2. Priorities and Inconsistencies ................................................................................... 7 ARTICLE II OWNER AND ASSOCIATION OBLIGATIONS AND ENTITLEMENTS ........... 7
2.1. Owners' Rights of Enjoyinent ................................................................................. 7
2.2. Common Driveways ................................................................................................ 8
2.3. Party Walls ............. ; ................................................................................................. 9
2.4. Easements for Drainage ........................................................................................... 9
2.5. Waiver of Use .......................................................................................................... 9
2.6. Taxes ...................................................................................................................... 10
2. 7. Hazardous Materials .............................................................................................. 10
2.8. Pollutant Discharge ................................................................................................ 10
2.9. Signage ................................................................................................................... 10
2.10. Outside Storage ...................................................................................................... 10
2.11. Owner's Statement of Use ..................................................................................... 10 ARTICLE III ASSOCIATION ...................................................................................................... 11
3.1. Organization ........................................................................................................... 11
3.2. Membership ........................................................................................................... 11 ARTICLE IV FUNCTIONS OF ASSOCIATION; MAINTENANCE STANDARDS; APPROVAL OF SIGNAGE ................................................................................ 12
4.1. Permitted Functions ............................................................................................... 12
4.2. Powers and Duties .................................................................................................. 12
4.3. Rules and Regulations ..................................................... ; ...................................... 13
4.4. Off site Nuisances ................................................................................................... 14
4.5. Violating Owner Participation ............................................................................... 14
4.6. Board Approval of Signage ................................................................................... 14
4. 7. Maintenance By Owners ........................................................................................ 14 ARTICLE V FUNDS AND ASSESSMENTS .............................................................................. 14
5.1. Obligation .............................................................................................................. 15
5.2. Maintenance Funds ................................................................................................ 15
5.3. Association Property Damage or Neglect; Other Special Assessments ................ 15
5.4. Common Assessments ........................................................................................... 15
5.5. Commencement of Common Assessments ............................................................ 16
5.6. Advanced Assessment Upon Transfer ................................................................... 16 SDH\30447.0001\361227.7 6/7/2007 -1-
TABLE OF CONTENTS
Page
5.7. Capital Improvement Assessments ........................................................................ 17
5.8. Exempt Property .................................................................................................... 17
5.9. Nonpayment of Assessments ................................................................................. 17
5.10. Mortgage Protection-Liens .................................................................................... 20
ARTICLE VI DESTRUCTION OR CONDEMNATION OF ASSOCIATION
PROPERTY ......................................................................................................... 20
6.1. Damage by Owners ................................................................................................ 20
6.2. Repair of Damages ................................................................................................. 21
6.3. Condemnation of Association Property ................................................................. 21
6.4. Condemnation of a Lot .......................................................................................... 21
6.5. Notice to Owners and Listed Mortgagees .............................................................. 21 ARTICLE VII DECLARANT EXEMPTION ............................................................................... 21 ARTICLE VIII INSURANCE ....................................................................................................... 22
8.1. Casualty Insurance ................................................................................................. 22
8.2. Insurance Obligations of Owners ........................................................................... 23
8.3. Waiver of Subrogation ........................................................................................... 23
8.4. Liability and Other Insurance ................................................................................ 23 ARTICLE IX MISCELLANEOUS ............................................................................................... 24
9.1. Term and Tenn.ination ........................................................................................... 24
9.2. Amendments .......................................................................................................... 24
9.3. Mortgagee Protection-General ............................................................................... 25
9.4. Notices ................................................................................................................... 26
9.5. Enforcement and Non-Waiver ............................................................................... 27
9.6. Interpretation .......................................................................................................... 28
9. 7. Reservation of Easements ...................................................................................... 28
9.8. No Public Right of Dedication ............................................................................... 29
9.9. Disclosures ............................................................................................................. 29
9.10. No Representations or Warranties ......................................................................... 29
9.11. Standard of Care, Nonliability ............................................................................... 29
9.12. Arbitration of Disputes .......................................................................................... 30 ..
SDH\30447.0001\361227.7 6/7/2007 -11-
DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND RESERVATION
OF EASEMENTS
FOR
WATERMAN BUSINESS CENTER
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATION OF EASEMENTS ("Declaration', is made by WATERMAN BP, LLC, a California limited liability company ("Declarant',. Except as otherwise specified herein, the capitalized words and phrases used in this Declaration shall have the meanings specified in Article I hereof.
A. Declarant is the owner of certain real property in the City of San Bernardino, County of San Bernardino, State of California, more particularly described as ("Properties'') follows:
Lots l through 12, inclusive, of Tract No. 18083, as shown on a subdivision map on file in Book 32t:/ , Pages 27 to 32-, inclusive, of Maps, in the Office of the San Bernardino County Recorder.
B. A copy of sheet 3 of 6 sheets of the approved Tract Map 18083 for the Properties is attached hereto as Exhibit "A". All of the Properties will be developed as a commercial/industrial complex with certain common objectives designed to preserve the value of and to benefit all the property within the Properties. The common development plan imposes reciprocal burdens and benefits on all of the Properties, such that each portion and the entirety of the Properties are both burdened by the provisions of this Declaration for the benefit of each other portion of the Properties, and benefited by the burdens imposed on each other portion of the Properties.
C. Declarant further declares all of the Properties shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the easements, restrictions, covenants, conditions and equitable servitudes contained in this Declaration, all of which are for the purpose of preserving and protecting the value, attractiveness and desirability of the Properties, in furtherance of a comprehensive plan for the protection, maintenance, subdivision, improvement use and sale of the Properties, or any portion thereof. The covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and charges set forth herein shall (1) run with the Properties; (2) be binding upon all persons having any right, title or interest in the Properties, or any part thereof, their heirs, successive owners and·assigns; (3) inure to the benefit of every portion of the Properties and any interest therein; (4) inure to the benefit of and be binding upon Declarant and their successive owners and each Owner and his or her respective successors-in-interest; and (5) may be enforced by Declarant, any Owner or the Association (subject to any express limitations set forth herein).
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ARTICLE I
DEFINITIONS; INTERPRETATION
1.1. Definitions. Unless otherwise expressly provided, the following words and phrases when used in this Declaration shall have the meanings hereinafter specified.
1.1.1 Approved Plans. Approved Plans means the drawings Approved For Construction dated December 8, 2006 prepared by Ware Malcomb (Sheets AO.I - A8.6) and Plotnik & Associates (grading plan - sheets #1-15, sewer improvement plans - sheets #1-2).
1.1.2 Articles. Articles mean the Articles of Incorporation of the Association on file with the California Secretary of State, as amended from time to time. :;¥-
1.1.3 Assessment. Assessment(s) means Common Assessment(s), Capital improvement Assessment(s), Reconstruction Assessment(s) and/or Special Assessment(s), as applicable.
1.1.4 Association. Association means Waterman Business Center Association, a California nonprofit corporation (formed pursuant to the Nonprofit Mutual Benefit Corporation Law), its successors and assigns. The Association is an "Association" as defined in Section 135l(a) of the California Civil Code. The Association will be formed by Declarant prior to the first Close of Escrow for the sale of a Lot or Condominium Unit in the Properties.
1.1.5 Association Property. The Association shall have easements over the Properties for the use, maintenance, repair and replacement of the "Association Property" described in Exhibit "B" attached hereto. Common Expenses for the Association Property shall be assessed against all Owners in proportion to the percentage shares of "Project Common Expenses" allocated to the Owners on Exhibit "D," as further provided in Article V. Declarant may designate additional Association Property in a Supplemental Declaration. Concurrently herewith, Declarant is recording a Supplemental Declaration covering only Lots 1 and 2 of Tract No. 18083 ("Condo Supplemental Declaration"), which among other things, (a) designates ~dditional Association Property within Lots 1 and 2 as being reserved for the exclusive use of Owners of Condominium Units within such Lots 1 and 2, (b) provides that Common Expenses attributable to Improvements and maintenance responsibilities of the Association under the Condo Supplemental Declaration shall be allocated solely among the Owners of Condominium Units within Lots 1 and 2, and (c) establishes certain additional covenants, conditions, restrictions and easements applicable only to Lots 1 and 2.
1.1.6 Beneficiary. Beneficiary means a Mortgagee under a Mortgage or a beneficiary under a deed of trust, as the case may be, and the assignees of such Mortgagee or beneficiary.
1.1. 7 Board or Board of Directors. Board or Board of Directors means the Association Board of Directors elected in accordance with the Association Bylaws and this Declaration.
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1.1.8 Budget. Budget means a written, itemized estimate of the Association's income and Common Expenses prepared pursuant to the Bylaws.
1.1.9 Bylaws. Bylaws means the Association's Bylaws adopted by the Board of Directors, as amended from time to time. ~
1.1. l O Capital Improvement Assessment. Capital Improvement Assessment means a charge against the Owners and their Lots or Condominium Units (as applicable), representing the Association's costs to install or construct any Improvements on any portion of the Association Property.
1.1.11 City. City means the City of San Bernardino and its various departments, divisions, employees and representatives.
1.1.12 Close of Escrow. Close of Escrow means the date on which a deed or long term ground lease or other such instrument is Recorded by Declarant conveying a Lot or Condominium Unit in the Properties to a third-party purchaser, with the exception of deeds between Declarant and any successor to the rights of Declarant hereunder.
1.1.13 Common Assessment. Common Assessment means the annual or supplemental charge against each Owner and his Lot or Condominium Unit, representing a portion of the ordinary Common Expenses for maintaining, improving, repairing, replacing, managing and operating the Association Property, which charge shall be levied among all Owners and their respective Lots or Condominium Units (as applicable), as provided herein.
Common Assessments shall include all late payment penalties, interest charges, attorneys' fees or other costs incurred by the Association in its efforts to collect all assessments authorized pursuant to this Declaration.
1.1.14 Common Driveways. Common Driveways means those driveway areas within the Properties designated for common use by the Owners of two (2) Lots (which are limited to the Common Driveway Lots described in Section l. l .15 below) and described and/or depicted on Exhibit "C" attached hereto.
1.1.15 Common Driveway Lots. The following pairs of Lots of Tract No. 18083 share a common driveway and are referred to as "Common Driveway Lots:" Lots 4 and 5; Lots 6 and 7; Lots 9 and 10; and Lots 11 and 12.
1.1.16 Common Expenses. Common Expenses means, subject to Article V, the actual and estimated costs of: maintaining, managing, operating, insuring, repairing and replacing the Association Property Improvements, managing and administering the Association and performing the Association's other obligations under this Declaration, unpaid Special Assessments, Reconstruction Assessments and Capital Improvement Assessments, including those costs not paid by the Owner responsible for payment.
1.1.17 Common Fire Water System. Common Fire Water System means the portions of the project fire water system that are not Individual Building Fire Water Systems (as defined below).
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1.1.18 Condominium Unit. Condominium Unit means a separate·interest in space as defined in Section 1351(f) of the California Civil Code and shown on a recorded condominium plan covering Lots 1 and 2 of Tract No. 18083, together with an undivided tenant in common interest in the common area described on such condominium plan.
1.1.19 County. County means the Co_unty of San Bernardino, in the State of California, and its various departments, divisions, employees and representatives.
1.1.20 Declarant. Declarant means Waterman BP, LLC, a California limited liability company, and its successors, and any other Person to which it assigns its rights hereunder by an express written and Recorded assignment. Any such assignment may include only specific rights of the Declarant hereunder and may be subject to such conditions and limitations as Declarant may impose in its sole and absolute discretion. As used in this Section, "successor" means any Person who acquires Declarant or substantially all of its assets, or who merges with Declarant by sale, merger, reverse merger, consolidations, sale of stock or assets, operation of law or otherwise.
1. 1.21 Declaration. Declaration means this Declaration of Covenants, Conditions, Restrictions and Reservation of Easements, as amended from time to time.
1.1.22 Deed of Trust. Deed of Trust means a Mortgage.
1.1.23 Design Committee Rules. Design Committee Rules means the Design Committee design standards, procedures, rules and guidelines which may be adopted by the Board pursuant to this Declaration, as amended from time to time.
1.1.24 Hazardous Materials. Hazardous Materials means any toxic substance, material or waste which is or becomes (i) regulated by any local governmental authority, the State of California or the United States Government; or (ii) defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "Non-RCRA hazardous waste," "RCRA h_azardous waste" or "recyclable material" under any federal, state or local statute or regulation promulgated thereunder.
1.1.25 Improvement. Improvement means all structures, landscaping and appurtenances thereto within the Properties, including but not limited to, as applicable, buildings, fixtures, outbuildings, signs, walkways, irrigation systems, storm drainage systems, streets, driveways, slopes, sidewalks, curbs and gutters, storm drain lines, catch basins, slopes, drains and appurtenances that collect and transport runoff from private property, sewer laterals, street lights, driveway and parking signage and striping improvements, parking areas, fences, trash enclosures, screening walls, retaining walls, stairs, hedges, windbreaks, plantings, planted trees and shrubs, and entry monumentation.
1.1.26 Individual Building Fire Water Systems. Individual Building Fire Water Systems means the portion of the project fire water system that is dedicated to an individual building and is downstream of that building's Pressure Indicator Valve (PIV).
1.1.27 Local Governmental Agency. Local Governmental Agency means the City, the County and any other local or municipal governmental entity or agency including, SDH\30447.0001\361227.7 6n/2007 -4-
without limitation, any special assessment district, maintenance district or community facilities district.
1.1.28 Lot. Lot means any lot or parcel of land shown upon any Recorded subdivision map or Recorded parcel map of any portion of the Properties (as such lot or parcel may be modified by any Recorded lot line adjustment), together with the Improvements, if any, thereon. For purposes of this Declaration references to "Lot" shall not include any Association Property and shall not include Lots 1 and 2 of Tract No. 18083.
1.1.29 Maintenance Funds. Maintenance Funds means the accounts created for Association receipts and disbursements pursuant to Article V hereof.
1.1.30 Manager. Manager means the Person, firm or agent employed as an independent contractor by the Association to perform functions of the Association, as limited by the Restrictions and the terms of the agreement between the Association and such Person.
1.1.31 Member. Member means every Person holding a Membership in the Association .. Membership means the voting and other rights and privileges of Members as provided in the Restrictions, together with the correlative duties and obligations contained therein.
1.1.32 Membership. Membership means the voting and other rights and privileges of members of the Association, as provided in the Restrictions, together with their correlative duties.
1.1.33 Mortgage. Mortgage means any mortgage or deed of trust or other conveyance of a Lot or Condominium Unit or other portion of the Properties to secure the performance of an obligation, which will be reconveyed upon the completion of such performance. The term "Deed of Trust" or "Trust Deed" is synonymous with the term "Mortgage."
1.1.34 Mortgagee/Mortgagor. Mortgagee means a Person to whom a Mortgage is made and includes the beneficiary of a Deed of Trust. Mortgagor means a Person who mortgages property to another (i.e., the maker of a Mortgage), and includes the Trustor of a Deed of Trust. The term "Trustor" is synonymous with the term "Mortgagor," and the term "Beneficiary" is synonymous with the term "Mortgagee."
1.1.35 Notice and Hearing. Notice and Hearing means written notice and a hearing before the Board, as further provided in the Bylaws.
1.1.36 Owner. Owner means a Person or Persons, including Declarant, holding a fee simple or long-term ground leasehold interest of Record to a Lot or a Condominium Unit.
The term "Owner" includes a seller under an executory contract of sale, but excludes Mortgagees. For purposes of this Declaration, a "long-term ground leasehold interest" means a leasehold interest having a term often (10) or more years.
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1.1.3 7 Owner Representative. Owner Representative means the partners, members officers, directors, employees, agents, patrons, guests, customers, invitees, contractors, lessees, sublessees and licensees of an Owner.
1.1.38 Party Wall. Party Wall means each common_ wall shared by the buildings located on the following pairs of Lots in Tract No. 18083: Lots 3 and 4; Lots 5 and 6; Lots 8 and 9; and Lots 10 and 11.
1.1.39 Person. Person means a natural individual, a corporation, partnership or any other entity with the legal right to hold title to real property.
1.1.40 Properties. Properties is defined in Preamble Paragraph A above. The Properties are classified as a "common interest development" as defined in Section 1351(c) of the California Civil Code.
1.1.41 Reconstruction Assessment. Reconstruction Assessment means a charge against each Owner and such Owner's Lot or Condominium Unit representing a portion of the Association's cost to reconstruct any Improvements on the Association Property resulting from a casualty, pursuant to the provisions of this Declaration.
1.1.42 Record, Filed, Recordation. Record, Filed or Recordation means, with respect to any document, the recordation or filing of such document in the Office of the County Recorder.
1.1.43 Restrictions. Restrictions mean this Declaration, applicable Supplemental Declarations(s), the Articles, the Bylaws, the Rules and Regulations, the Sign Criteria, and restrictions (if any) set forth in a grant deed of a Unit or Lot from Declarant to an Owner.
1.1.44 Rules and Regulations. Rules and Regulations means the rules and regulations adopted by the Board as provided in the Restrictions.
1.1.45 Sign Criteria. Sign Criteria means the Sign Criteria for the Properties adopted by Declarant, as amended by Declarant and/or the Board from time to time.
1.1.46 Special Assessment. Special Assessment means a charge against a particular Owner and such Owner's Lot or Condominium directly attributable to or reimbursable by such Owner as provided in the Restrictions or equal to the cost incurred by the Association for corrective action performed pursuant to the Restrictions, or levied by the Board as a reasonable fine or penalty for noncompliance with the Restrictions, plus interest and other charges on such Special Assessment as provided for in this Declaration.
1.1.47 Supplemental Declaration. Supplemental Declaration means any declaration of covenants, conditions and restrictions and reservation of easements or similar document supplementing this Declaration which may be Recorded by Declarant from time to time. Declarant (and the Owner of the property subject thereto if other than Declarant) may record a Supplemental Declaration which incorporates this Declaration by reference and which may supplement this Declaration with such additional covenants, conditions, restrictions and SDH\30447.0001\361227.7 6/7n007 -6-
easements. Supplemental Declarations may modify this Declaration as it applies to the property encumbered by the Supplemental Declaration.
1.2. Priorities and Inconsistencies. If there are conflicts or inconsistencies between this Declaration and the Articles of Incorporation, the Bylaws or the other Restrictions, the terms and provisions of this Declaration shall prevail.
ARTICLE II
OWNER AND ASSOCIATION OBLIGATIONS AND ENTITLEMENTS
2.1. Owners' Rights of Enjoyment. Every Owner and its Owner Representative(s) shall have a right to use the Association Property in accordance with the Restrictions, which right shall be appurtenant to and shall pass with title to every Lot and Condominium Unit, subject to the Association's right to exercise exclusive jurisdiction over and control of the Association Property (other than dedicated to and/or maintained by a Local Governmental Authority) and the following provisions:
2.1.1 Additional/Modification of Association Property. The right of Declarant to designate additional Association Property, modify the Association Property and/or designate Association Property within Lots 1 and 2 of Tract No. 18083 as being for the exclusive use of the Owners of Condominium Units on such Lots by recordation of an amendment to this Declaration or a Supplemental Declaration.
2.1.2 Rules and Regulations. The Association's right to establish reasonable Rules and Regulations pertaining to the use of the Association Property and any facilities located thereon.
2.1.3 Association Property Transfers. The Association's rights set forth in Section 4.2.4 of this Declaration and Declarant's rights set forth in Article VII hereof.
2.1.4 Use By Declarant. The right of Declarant (and its employees, sales agents, prospective purchasers, customers and representatives) to enter upon the Association Property, for the benefit of Declarant or any other property owned by Declarant, or any combination thereof, to complete the construction of any landscaping or other Improvement to be installed thereon.
2.1.5 Reconstruction of Improvements. The Association's right (by action of the Board) to reconstruct, replace or refinish any Improvement or portion thereof upon the Association Property, in accordance the original design, finish or standard of construction of such Improvement or of the other Improvements or, if not in accordance with the original design, finish or standard of construction, only with the approval of fifty-one percent (51 %) of the Association voting power with respect to Association Property described in this Declaration.
2.1.6 Maintenance. The Association's right to maintain and repair the Association Property.
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2.1.7 Restricted Areas. The Association's right, acting through the Board, to reasonably restrict access to landscaped areas, drainage facilities, maintenance facilities and similar areas of the Association Property. The Association shall have exclusive control over all of the Association Property.
2.2. Common Driveways. (Note: This Section 2.2 applies only to Lots 4 through 7 and 9 through 12 of Tract No. 18~83.)
2.2.1 Common Driveway Easements. Declarant hereby reserves, for the benefit of each Owner of a Common Driveway Lot and their respective Owner Representatives, nonexclusive reciprocal easements appurtenant to each such Common Driveway Lot, for vehicular and pedestrian access, ingress and egress over the Common Driveway, for the maintenance, repair and replacement of Improvements within the applicable Common Driveway, and for access to and use of the trash dumpster located in the enclosure on the common boundary of each respective Common Driveway Lot.
2.2.2 Common Driveway Use and Maintenance. There shall be no parking within any Common Driveway, and no Owner of a Common Driveway Lot shall interfere with or obstruct or permit its Owner Representatives to interfere with or obstruct the reasonable use of the Common Driveway by the other Owner of such Common Driveway Lot and such other Owner's Owner Representatives. Without limiting the generality of the foregoing, no gates or fences shall be constructed on any Common Driveway. The Owners of Common Driveway Lots shall jointly maintain, repair, replace and reconstruct, or cause to be maintained, repaired, replaced and reconstructed ( collectively, "Common Driveway Maintenance''), the Common Driveway serving such Owner's Lot substantially as originally constructed and improved by Declarant. Except as provided in Section 2.2.3 below, the cost of Common Driveway Maintenance shall be shared equally by the Owners of the Lots served by the applicable Common Driveway. The Owners of Lots served by a Common Driveway shall perform such Common Driveway Maintenance as they mutually agree on or, if they cannot so agree, as may be determined to be necessary by the Board following a petition to the Board by the Owner desiring to have Common Driveway Maintenance performed. If any Owner of a Common Driveway Lot refuses to join in any Common Driveway Maintenance ( after it has been agreed to in writing by such Owner or after the Board has approved a petition for such Common Driveway Maintenance) ("Non-Repairing User''), the other Owner of the Lot served by the Common Driveway ("Repairing User'') may undertake the Common Driveway Maintenance. In such event, the Non-Repairing User shall reimburse the Repairing User for its share of the cost of the Common Driveway Maintenance within five (5) business days after the Non-Repairing Users have received a written statement from the Repairing User which describes the Common Driveway Maintenance and the cost of the Common Driveway Maintenance incurred by the Repairing User. Any amount not paid when due shall bear interest at rate equal to the lesser of ten percent (10%) per annum or the maximum nonusurious rate permitted by applicable law.
2.2.3 Repair Required Due to Negligence. Notwithstanding anything to the contrary in Section 2.2.2 above, if any Common Driveway Maintenance is required as a result of the negligent or willful misconduct of an Owner ("Negligent Owner'') or the Owner Representatives of such Owner, the Common Driveway Maintenance shall be the sole responsibility of the Negligent Owner at its sole cost and expense. The Negligent Owner shall SDH\30447.0001\361227.7 6/7/2007 -8-
. perform any such Common Driveway Maintenance as soon as reasonably possible after the negligence or misconduct. In the event the Negligent Owner fails or refuses to perform the required Common Driveway Maintenance, upon ten (10) days' prior written notice to the Negligent Owner, the Owner of the other Common Driveway Lot served by the Common Driveway may perform the Common Driveway Repair and the Negligent Owner shall reimburse such repairing Owner or the Association, as applicable, for the cost of the Common Driveway Maintenance within five (5) business days after the Negligent Owner has received a written statement describing the Common Driveway Maintenance and the cost incurred therefor. Any amount not paid when due hereunder shall bear interest at the highest non-usurious rate permitted by law.
2.3. Party Walls. (Note: This Section applies only to Lots 3 through 6 and 8 through 11.) No Owner may undertake any modification of a Party Wall without the consent of the Owner of other Lot sharing such Party Wall and the prior approval of the Building and Safety Division of the City. All modifications to a Party Wall shall be made in compliance with all applicable building codes and all other requirements (if any) of the Building and Safety Division of the City. To the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions apply to Party Walls. The Owners of Lots sharing a Party Wall shall jointly repair and maintain such Party Wall, and the cost of reasonable repair and maintenance of a Party Wall shall be shared equally by the Owners of the Lots connected by such Party Wall; provided, however, that each Owner shall be solely responsible for maintaining the surface of any Party Wall within the interior of the building on such Owner's Lot. The Owners of Lots sharing a Party Wall shall perform such Party Wall repair and maintenance as they mutually agree on or, if they cannot so agree, as may be determined to be necessary by the Board following a petition to the Board by the Owner desiring to have Party Wall repair or maintenance performed. If a Party Wall is destroyed or damaged by fire or other casualty, any Owner whose Lot is affected thereby may restore it, and the Owner of the other Lot affected thereby shall contribute equally to the cost of restoration thereof. An Owner who by its negligent or willful act causes a Party Wall to be damaged, destroyed or to deteriorate or require repair or replacement shall bear the whole cost of furnishing the necessary repairs or replacement. The right of any Owner to contribution from any other Owner under this Section is appurtenant to the land and passes to such Owner's successors in title.
2.4. Easements for Drainage. Declarant hereby reserves to itself, and to the Association and every Owner and their respective Owner Representatives and successors, nonexclusive easements for drainage of water in accordance with the "established drainage" of the Properties. The term "established drainage" means the water drainage pattern and system shown on the Approved Plans. No Owner may alter the established drainage for the Properties unless it establishes an alternative drainage pattern that is approved in writing by the Board.
2.5. Waiver of Use. No Owner may exempt himself from personal liability for assessments duly levied by the Association, nor release his Lot or Condominium Unit or other property in the Properties from the liens and charges hereof, by waiver of the use and enjoyment of the Association Property or any facilities thereon or by abandonment of his Lot or Condominium Unit or any other property in the Properties.
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2.6. Taxes. Each Owner shall execute such instruments and take such action as may reasonably be specified by the Association to obtain separate real estate tax assessment of his Lot or Condominium Unit. If, in the Association's opinion, any taxes or assessments constitute a lien on the Association Property, or any part thereof, they may be paid by the Association and each Owner shall be obligated to pay or to reimburse the Association for, as the case may be, the taxes and assessments assessed by the County Assessor or other taxing authority against the Association Property and attributable to his own Lot or Condominium Unit and interest in the Association Property.
2.7. Hazardous Materials. All Hazardous Materials shall be properly used and disposed of within the Properties in compliance with applicable law, including any applicable Storm Water Pollution Prevention Plan and any program established by the Association with respect thereto. Toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, anti freeze, solvents, paints, paint thinners, wood preservatives and other such fluids shall not be discharged into any street or any storm drain or storm water conveyance system within the Properties. Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers and other such chemical treatments shall meet Federal, State and County requirements as prescribed in their respective containers.
2.8. Pollutant Discharge. The Properties are subject to all Federal, State and local requirements of the National Pollutant Discharge Elimination System ("NPDES'') adopted pursuant to the Federal Clean Water Act including without limitation any Water Quality Management Plan for the Properties ("Water Management Plan'') which identifies certain Best Management Practices ("BMP'') to reduce the discharge of pollutants to storm water facilities, before, during and after construction on the Properties in completed. The Association shall comply with all BMPs applicable to the Association Property and perform all maintenance imposed the Water ·Management Plan with respect to the Association Property and all other governmental requirements, as amended. The costs of such maintenance, if any, shall be treated as Common Expenses. Each Owner of a Lot, at its sole cost and expense, shall comply with all BMPs applicable to such Owner's Lot and shall perform all maintenance of such Owner's Lot and Improvements thereon required under the Water Quality Management Plan and all other applicable governmental requirements applicable to such Owner's Lot, as amended from time to time.
2.9. Signage. All signs, banners, and advertising media in the Properties which are or will be externally visible shall comply with the Sign Criteria, all City ordinances, codes and statutes and shall be subject to the approval of the Board pursuant to Section 4.6 below.
2.10. Outside Storage. Outside storage shall be permitted on any Lot provided that such outside storage (a) complies with all applicable ordinances and requirements of the City, and (b) is contained within private yard areas.
2.11. Owner's Statement of Use. Each Owner will prepare and submit to the San Bernardino City Fire Department an "Owner's Statement of Use" on the Fire Department's current standard form prior to the sale or leasing of such Owner's Lot or Condominium Unit.
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ARTICLE III
ASSOCIATION
3 .1. Organization. The Association is organized as a California corporation under the Nonprofit Mutual Benefit Corporation Law. The Association is charged with the duties and vested with the powers prescribed by law, subject to the limitations and provisions of the Articles, Bylaws, and this Declaration. Neither the Articles nor Bylaws shall, for any reason, be amended or otherwise changed so as to be inconsistent with this Declaration. If there is any ambiguity in any provision of the Articles or Bylaws, then such provision shall be construed, to the extent possible, so as to be consistent with the provisions of this Declaration.
3.2. Membership. Members of the Association are (i) Declarant, for so long as Declarant is entitled to cast a Class C vote pursuant to this Section, (ii) each Owner (including Declarant) of one (1) or more Lots or Condominium Units in the Properties. Membership in the Association is subject to the Restrictions. Except for the Class C Membership, all Memberships in the Association held by Owners are appurtenant to the Lot or Condominium Unit owned by each Owner, and ownership of a Lot or Condominium Unit is the sole qualification for Membership in the Association.
3.2.1 Classes of Membership. The Association shall have three (3) classes of voting Membership as follows:
(i) Class A. The Class A Members are all Owners of Lots, except Declarant. Each Class A Member is assigned one (1) vote for each one percent (1 %) (rounded up to the nearest one percent (1%)) of the share of Project Common Expenses allocated to each such Owner's Lot as set forth in Exhibit "D" hereto.
(ii) Class B. The Class B Members are all Owners of Condominium Units, except Declarant. Each Class B Member is assigned one ( 1) vote for each one percent (1 %) (rounded up to the nearest one percent (1 %)) of the share of Project Common Expenses allocated to each such Owner's Condominium as set forth in Exhibit "D"hereto. (iii) Class C. The Class C Member is Declarant for so long as Declarant owns any Lot or Condominium Unit in the Properties. The Class C Member is assigned three (3) votes for each vote allocated to the Class A Members and Class B Members in the aggregate regardless of how many Lots or Condominium Units Declarant owns.
The Board is comprised of three (3) directors, one elected by the Class A Members, one elected by the Class B Members, and one elected by the entire voting power of the Association. Notwithstanding anything to the contrary in the foregoing or in the Bylaws, Declarant shall have the right to appoint (a) the Class A director for so long as Declarant owns any Lot, and (b) the Class B director for so long as Declarant owns any Condominium Unit.
3.2.2 Transfer of Membership. An Owner's Association Membership shall not be assigned, transferred, pledged or alienated in any way, except upon the transfer of title to the Owner's appurtenant Lot or Condominium Unit, and then only to the purchaser or Mortgagee of such Lot or Condominium Unit. Any attempt to make a prohibited Membership transfer is SDH\30447.0001\361227.7 6/7/2007 -11-
void and will not be reflected on the books of the Association. Notwithstanding the foregoing, a Member who has sold his Lot or Condominium Unit to a contract purchaser under an installment land sale contract may delegate his membership rights to the contract purchaser. Such delegation shall be in writing and must be delivered to the Board before such contract purchaser may exercise Membership privileges. However, the contract seller remains liable for all charges and assessments attributable to his Lot or Condominium Unit until fee title to the Lot or Condominium Unit is transferred. If the Owner of any Lot or Condominium Unit fails or refuses to transfer the Membership (registered in his name) to the purchaser of such Owner's Lot or Condominium Unit upon transfer of fee title thereto, the Board of Directors may record the transfer on the Association's books. The Association may levy a reasonable transfer fee against new Owners and their Lots or Condominium Units (which fee shall be added to the Common Assessments chargeable to such new Owners) to reimburse the Association for the administrative costs of transferring the Memberships to the new Owners on the Association's records.
3.2.3 Suspension of Membership Rights. The Board may suspend the Membership rights of any Member, including the right to vote at any meeting of the Members, for any period during which any Common Assessment, Capital Improvement Assessment or Reconstruction Assessment against such Member and the Lot or Condominium Unit owned by such Member is delinquent. Any such suspension for nonpayment of any assessment shall not constitute a waiver or discharge of the Member's obligation to pay the assessments provided for herein.
ARTICLE IV
FUNCTIONS OF ASSOCIATION; MAINTENANCE STANDARDS;
APPROVAL OF SIGN AGE
4.1. Permitted Functions. The Association is formed exclusively for those social welfare purposes and activities which are specifically and directly related to (i) equipping, maintaining, operating and utilizing the Association Property, including the Improvements thereon, (ii) collecting assessments to finance the maintenance and utilization of the Association Property, and (iii) administering and enforcing the Restrictions ( collectively, the "Permitted Functions''). Notwithstanding the foregoing, Permitted Functions do not include those activities prohibited by Section 4.4 below. The funds and resources of the Association shall be utilized solely and exclusively for the direct costs of Permitted Functions.
4.2. Powers and Duties. The Association has all of the powers of a California Nonprofit Mutual Benefit Corporation, subject only to such limitations upon the exercise of such powers as are expressly set forth in the Restrictions. Subject to the Restrictions, the Association has the power to perform any and all lawful acts which may be necessary or proper for or incidental to the exercise of any of the express powers of the Association. Subject to the foregoing provisions, the Association, acting through the Board, has:
4.2.1 Assessments. The power and duty to levy assessments on the Owners and to collect and enforce payment of such assessments in accordance with the provisions of Article V hereof.
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4.2.2 Repair and Maintenance. The power and duty to maintain, replace and repair, as applicable, in a neat and attractive condition, the Association Property. The power and duty, following a written petition from an affected Owner, to determine whether repairs specified in such Owner's petition with respect to a Common Driveway and/or a Party Wall are necessary.
4.2.3 Firewater Fees; Firewater Monitoring Services; Trash Services. The power and duty to (a) to procure and pay water utility fees associated with the Common Fire Water System, (b) to procure and pay for monitoring services associated with the Common Fire Water System, including telephone charges and monitoring system rental fees, and (c) procure and pay for trash dumpster pickup service for the Properties. If at any time the Association determines that any Owner and/or its Owner Representatives is generating a volume of trash that requires an increase in the size of a dumpster and/or an increase in the number of times per month that the dumpster is emptied, then the Association may levy a Special Assessment against such Owner and its Lot or Condominium in an amount equal to the increased costs incurred by the Association for the disproportionate use.
4.2.4 Easements and Rights-of-Way. The power but not the duty to grant and convey to any Person easements, licenses or rights-of-way in, on, over or under the Association Property and fee title to parcels or strips of land which comprise a portion of the Association Property, for purposes consistent with the terms of this Declaration.
4.2.5 Manager. The power and duty to contract with a professional Manager for the Association.
4.2.6 Insurance. The power and duty to obtain and maintain insurance for the Association and Association Property in accordance with Article VIII.
4.2.7 Legal and Accounting Services. The power but not the duty, if deemed appropriate by the Board, to retain and pay for legal (subject to Section 4.2.9 below) and accounting services necessary or proper in operating the Association Property, enforcing the Restrictions, and performing any of the other Association duties or rights.
4.2.8 Audit. The power and duty to permit any Owner, who may be accompanied by an accountant or other consultant, at said Owner's sole expense to audit or inspect the Association's books and records; provided that such audit or inspection is made during normal business hours and without unnecessary interference with the operations of the Manager or the Association.
4.2.9 Litigation. Except as otherwise provided in this Declaration, the power but not the duty to initiate, defend, settle or intervene in mediation, arbitration, judicial or administrative proceedings on behalf of the Association in matters solely pertaining to (i) the application or enforcement of the Restrictions and (ii) damage to the Association Property. Any recovery by the Association with respect to any damage to or defect in the Association Property shall be utilized solely for the purpose of paying for the costs of obtaining the recovery and for correcting such Association Property damage or defect.
4.3. Rules and Regulations. The Board may adopt such Rules and Regulations as it deems proper regarding the Owners' use, occupancy and maintenance of the Properties. To be SDH\30447.0001\361227.7 6n/2007 -13-
. effective, a copy of the Rules and Regulations, as adopted, amended or repealed, must be posted in a conspicuous place in the Association Property or must be mailed or otherwise delivered to each Owner. When mailed, delivered or posted, the Rules and Regulations shall have the same force and effect as if they were set forth herein; provided, however, that the Rules and Regulations shall be enforceable only to the extent that they are consistent with the Restrictions.
4.4. Offsite Nuisances. The Association shall not use any assessments or expend Association funds or resources to abate any annoyance or nuisance emanating from outside the physical boundaries of Properties.
4.5. Violating Owner Participation. No Owner who is in violation of the Restrictions shall be entitled to participate and/or vote as a Board in any action to be taken by the Association to remedy, penalize or otherwise act in connection with such Owner's violation of the Restrictions.
4.6. Board Approval of Signage. Except for "Approved Signage" (defined below), no flags, banners, balloons or advertising, address and/or identification signs, materials or items (collectively "Signage") shall be maintained on any portion of the Properties that is externally visible. All Signage in the Properties on the Association Property or which can be seen from any portion of the Association Property or any area outside of the Properties shall comply with the Sign Criteria and all Signage requirements and restrictions of the City. The term "Approved Signage" means Signage which the Board has determined in writing in advance to be in conformance with the Signage Criteria. Each Owner shall maintain its Approved Signage in good working order and in a clean and safe condition. The Board shall review proposed Signage solely for conformance with the Sign Criteria. The Board is not responsible for reviewing, nor shall its approval of any plan or design be deemed approval of, any plan or design from the standpoint of structural safety or conformance with building codes or City and/or other governmental requirements and restrictions.
4. 7. Maintenance By Owners. Each Owner of a Lot shall repair and maintain its Lot and the Improvements thereon (including, without limitation, landscaping and Individual Building Fire Water System) or constituting a part thereof in clean, sanitary and attractive condition and in good repair in keeping with the standards of all applicable Local Governmental Authorities (except to the extent such Improvements are part of the Association Property). In addition, each Owner shall keep the parkway landscaping area in the right of way adjacent to such Owner's Lot mowed, weeded and neatly trimmed, as applicable, and clear of all rubbish, trash and debris and perform such other maintenance, repair and replacement as is necessary to keep such parkway area in a neatly landscaped and sightly condition. If any Owner fails to maintain the landscaping on its Lot and/or the parkway landscaping adjacent such Owner's Lot as required under this Section, the City shall have the right, but not the obligation, to enter upon such Lot and/or parkway area, as applicable, to perform such landscaping and charge the Owner therefor.
ARTICLE V
FUNDS AND ASSESSMENTS
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5.1. Obligation. By acceptance of a deed or other conveyance of a Lot or Condominium Unit, whether or not it shall be so expressed in such deed or such other instrument, every Owner is deemed to covenant to pay to the Association (i) annual Common Assessments for Common Expenses, (ii) Capital Improvement Assessments, (iii) Special Assessments, and (iv) Reconstruction Assessments; such assessments to be established and collected as hereinafter provided. All assessments, together with interest, costs, and reasonable attorneys' fees for the collection thereof, shall be a charge on the land and shall be a continuing lien upon the Lot or Condominium Unit against which such assessment is made. The personal obligation of assessments shall not pass to the successors-in-title to any Owner, unless expressly assumed by them.
5.2. Maintenance Funds. The Board shall Budget, establish and maintain at least the following separate accounts (the "Maintenance Funds") into which shall be deposited all monies paid to the Association, and from which disbursements shall be made, as provided herein, in the Association's performance of its functions under the Restrictions. All amounts deposited into the Maintenance Funds must be used solely for ~he purposes authorized by the Restrictions. Disbursements from the particular Maintenance Funds shall be limited to specific purposes as follows:
5.2. l General Operating Fund. A General Operating Fund for current expenses of the Association. Disbursements from the General Operating Fund shall be made for such purposes as are necessary for the discharge of the Association's responsibilities under the Restrictions, for the common benefit of all Owners. The General Operating Fund shall exclude current expenses attributable to Improvements and maintenance responsibilities of the Association under the Condo Supplemental Declaration ("Condominium Property Expenses'").
Nothing contained herein shall preclude the establishment of additional Maintenance Funds by the Association earmarked for specified purposes authorized by the Restrictions.
5.2.2 Other Funds. Any other M:;tintenance Funds which is required pursuant to any Supplemental Declaration or which the Board of Directors may deem necessary.
5.3. Association Property Damage or Neglect; Other Special Assessments. If any maintenance, repair or replacement of the Association Property is necessitated in the sole judgment of the Board as a result of the willful or negligent act or neglect of an Owner or an Owner Representative of such Owner, such maintenance, repairs or replacements shall be performed at the expense of such Owner, after Notice and Hearing, and a Special Assessment therefore shall be levied against such Owner. The Board may also levy Special Assessments as provided in Section 9.5.6 below.
5.4. Common Assessments. Each annual Common Assessment shall constitute an aggregate of separate assessments for each of the Maintenance Funds, reflecting an itemization of the amounts assessed and attributable to prospective deposits into the General Operating Funds, and any other Maintenance Fund(s) established by the Association. The Common Expenses of the Association (exclusive of Condominium Property Expenses) shall be allocated among all of the Lots and Condominium Units and the Owners thereof based on the percentage of shares of Project Common Expenses set forth in Exhibit "D" attached hereto. Condominium SDH\30447.0001\361227.7 6/7/2007 -15-
Property Expenses shall be allocated only among the Condominium Units within Lots 1 and 2 of Tract No. 18083 in accordance with the Condo Supplemental Declaration.
5.5. Commencement of Common Assessments.
5.5.1 Commencement Date. Common Assessments shall commence as to all Lots and Condominium Units on the date on which the first Close of Escrow for a Lot or Condominium Unit occurs. Notwithstanding anything to the contrary set forth in this Declaration, no Owner shall be responsible for the payment of any Common Assessments until the first day of the month following the completion of a building on the applicable Lot or the Close of Escrow for such Lot. Notwithstanding the foregoing, each Owner shall be responsible for any Special Assessments from and after the date on which such Owner acquires title to such Lot or Condominium Unit.
5.5.2 Payment Procedure. The Board shall fix the amount of the annual Common Assessment to be levied against each Lot and Condominium Unit at least thirty (30) days in advance of each Common Assessment period. However, unless otherwise established by the Board, the initial annual Common Assessment shall be levied in accordance with the most recent Budget. Written notice of any increase in the amount of the annual Common Assessment or any Capital Improvement or Reconstruction Assessment shall be sent by first class mail to every Owner subject thereto, not less than thirty (30) prior to the increased assessment becoming due. All installments of Common Assessments shall be collected in advance on a regular basis by the Board, at such frequency and on such due dates as the Board determines from time to time in its sole and absolute discretion. Each installment of a Common Assessment may be paid to the Association in one ( 1) check. If any payment of a Common Assessment installment is less than the amount assessed, the payment received by the Association from that Owner shall be credited in order of priority first to the General Operating Fund until that portion of the Common Assessment has been satisfied, then to the Condominium Association Property Operating Fund (if any) applicable to such Condominium Unit Owner until that portion of the Common Assessment has been satisfied, then to any other Maintenance Funds established by the Association.
5.5.3 Excess Funds. Unless otherwise approved by a majority of the voting power of the Association, any excess funds remaining in the Operating Fund, over and above the amounts used for the operation of the Properties, shall be used to reduce the following year's Common Assessment attributable to such Maintenance Funds.
5.6. Advanced Assessment Upon Transfer. Upon the transfer of any Lot or Condominium Unit, the Association will have the right to collect, in advance, up to two (2) months' Common Assessment allocable to the Lot or Condominium Unit being transferred.
Such amounts shall be due and payable at the time of transfer and shall be applied to the Common Assessment installments payable with respect to the applicable Lot or Condominium for the period after the date of the transfer. Each Owner will provide the Association with not less than thirty (30) days' prior written notice of any contemplated transfer of its Lot or Condominium Unit.
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5.7. Capital Improvement Assessments. The Board may levy, in any fiscal year, a Capital Improvement Assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a Capital Improvement upon the Association Property, including fixtures and personal property related thereto; provided that all proposed Capital Improvement Assessments shall require a majority of votes at a meeting or written ballot of the Owners at which more than fifty percent (50%) of the total voting power of the Association is represented. Notwithstanding the foregoing, the Board may levy in any fiscal year a Capital Improvement Assessment applicable to that fiscal year without the vote of the Members if such Capital Improvement Assessment is necessary for addressing a Capital Improvement necessary to address an imminent threat to property or the safety of persons within the Properties. All Capital Improvement Assessments must be levied against all Lots and Condominium Units in the same manner and in the same proportions as Common Assessments are levied, and they shall be collected in the manner and frequency determined by the Board.
5.8. Exempt Property. The following property subject to this Declaration shall be exempt from the assessments herein: those portions of the Properties dedicated in fee and accepted by a public body, agency or authority; the Association Property, if any, owned in fee by the Association.
5.9. Nonpayment of Assessments.
5.9.1 Delinquency. Assessments are delinquent if not paid within fifteen (15) days after the due date established by the Association. Assessments not paid within thirty (30) days after the due date, plus all reasonable costs of collection (including attorneys' fees) and late charges bear interest at the maximum rate permitted by law commencing thirty (30) days after the due date.until paid. The Association may also require the delinquent Owner to pay a late charge in accordance with California Civil Code Section 1366(e)(2). 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.
5.9.2 Creation and Release of Lien.
(i) Priority of Lien. All sums assessed in accordance with this Declaration constitute a lien on the respective Lot or Condominium prior and superior to (i) any declaration of homestead Recorded after the Recordation of this Declaration, and (ii) all other liens, except (1) all taxes, bonds, Assessments and other levies which, by law, would be superior thereto, and (2) the lien or charge of any first Mortgage of Record (meaning any Recorded Mortgage with first priority or seniority over other Mortgages) made in good faith and for value and Recorded before the date on which the "Notice of Delinquent Assessment" (described in this Section) against the respective Lot or Condominium was Recorded. (ii) Prerequisite to Creating Lien. Before the Association may place a lien on an Owner's Lot or Condominium to collect a past due Assessment, the Association must comply with (i) the notification requirements of California Civil Code Section 1367. l(a) and (ii) the procedural requirements of California Civil Code Section 1367.l(c).
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(iii) Notice of Delinquent Assessment. The lien becomes effective on Recordation by the Board or its authorized agent of a Notice of Delinquent Assessment ( "Notice of Delinquent Assessment', securing the payment of any Assessment or installment thereof levied by the Association against any Lot or Condominium Owner, as provided in Section 1367 of the California Civil Code. The Notice of Delinquent Assessment must identify (i) the amount of the Assessment and other authorized charges and interest, including the cost of preparing and Recording the Notice of Delinquent Assessment, (ii) the amount of collection costs incurred, including reasonable attorneys' fees, (iii) a sufficient description of the Lot or Condominium that has been assessed, (iv) the Association's name and address, (v) the name of the Owner of the Lot or Condominium that has been assessed, and (vi) if the lien is to be enforced by nonjudicial foreclosure, the name and address of the trustee authorized by the Association to enforce the lien by sale. The Notice of Delinquent Assessment must be signed by an authorized Association officer or agent and must be mailed in the manner required by Section 2924b of the California Civil Code to the Owner of record of the Lot or Condominium no later than (10) calendar days after Recordation. The lien relates only to the individual Lot or Condominium against which the Assessment was levied and not to the Properties as a whole. (iv) Exceptions. Assessments described in Section 1367(c) of the California Civil Code and Section 2792.26(c) of the California Code of Regulations may not become a lien against an Owner's Unit enforceable by sale of the Unit under Sections 2924, 2924(b) and 2924(c) of the California Civil Code.
(v) Application of Payments. Delinquent Assessments paid by an Owner shall be applied first to Assessments owed and then to interest, late charges and collection costs. If requested by an Owner, the Association shall provide the Owner with a receipt for payment of delinquent Assessments which receipt shall include the date of receipt of payment and the name of the individual receiving receipt. The Association shall provide a mailing address for overnight payment of Assessments.
(vi) Release of Lien. Within twenty-one (21) days following (a) payment of the full amount claimed in the Notice of Delinquent Assessment, or other satisfaction thereof, or (b) discovery by the Board that the lien was recorded in error, the Board shall cause to be Recorded a Notice of Satisfaction and Release of Lien ("Notice of Release', stating the satisfaction and release of the amount claimed. The Board may require the Owner to pay a reasonable charge for preparing and Recording the Notice of Release. Any purchaser or encumbrancer who has acted in good faith and extended value may rely on the Notice of Release as conclusive evidence of the full satisfaction of the sums identified as owed in the Notice of Delinquent Assessment.
5.9.3 Enforcement of Liens. Except as otherwise provided herein and in any applicable provisions of the California Civil Code, the Association may enforce the collection of amounts due under this Declaration as follows:
(i) Judicial or Non-Judicial Foreclosure. If (i) the amount of a delinquent Assessment exceeds eighteen hundred dollars ($1,800.00) ( excluding accelerated Assessments, late charges, fees and costs of collection, attorneys' fees and interest) or (ii) an Assessment is more than twelve (12) months past due, the Association may enforce collection of SDH\30447.0001\361227.7 6/7/2007 -18-
the amount due by using judicial or nonjudicial foreclosure, provided that the Association must comply first with the requirements of Section 1367.4(c) of the California Civil Code. The foreclosure sale shall be conducted in accordance with the provisions of the California Civil Code applicable to the exercise of powers of sale in Mortgages, or in any manner permitted by law. The Association may sue to foreclose the lien if (a) at least thirty (30) days have elapsed since the date on which the Notice of Delinquent Assessment was Recorded and (b) at least ten (10) days have elapsed since a copy of the Notice of Delinquent Assessment was mailed to the Owner affected thereby. The Association may bid on the Lot or Condominium at foreclosure sale, and acquire and hold, lease, mortgage and convey the same. On completion of the foreclosure sale, the Association or the purchaser at the sale may file suit to secure occupancy of the defaulting Owner's Lot or Condominium, and the defaulting Owner shall be required to pay the reasonable rental value for the Lot or Condominium during any period of continued occupancy by the defaulting Owner or any persons claiming under the defaulting Owner.
Notwithstanding the foregoing, a nonjudicial foreclosure by the Association to collect a debt for delinquent Assessments shall be subject to a right of redemption. The redemption period shall expire ninety (90) days after the foreclosure sale.
(ii) Civil Action in Small Claims Court. If the amount of a delinquent Assessment does not exceed eighteen hundred dollars ($1,800.00) ( excluding accelerated Assessments, late charges, fees and costs of collection, attorneys' fees and interest), the Association may not enforce the collection of the amount due by judicial or nonjudicial foreclosure, but may collect such amount by a civil action in small claims court pursuant to Sections 116.110 et seq. of the California Code of Civil Procedure. The amount of a delinquent Assessment which may be recovered in small claims court may not exceed the jurisdictional limits of the court and shall be the sum of (i) the amount owed as of the date of filing of the complaint in the proceeding and (ii) in the discretion of the court, an additional amount equal to the amount owed for the period from the date the complaint is filed until satisfaction of the judgment, which total amount may include without limitation any reasonable late charges, fees and costs of collection, attorneys' fees and interest.
(iii) Other Legal Remedies. Subject to the limitations set forth in Section 1367.4 of the California Civil Code, the Association may enforce the collection of amounts due under this Declaration in any other manner provided by law. Any suit to recover a money judgment does not affirm the adequacy of money damages. Any recovery resulting from a suit at law or in equity initiated pursuant to this Section may include reasonable attorneys' fees as fixed by the court.
5.9.4 Priority of Assessment Lien. Mortgages Recorded before a Notice of Delinquent Assessment have lien priority over the Notice of Delinquent Assessment. Sale or transfer of any Lot or Condominium does not affect the Assessment lien, except that the sale or transfer of any Lot or Condominium pursuant to judicial or nonjudicial foreclosure of a first Mortgage extinguishes the lien of such Assessments as to payments which became due before such sale or transfer. No sale or transfer relieves such Lot or Condominium from liens for any Assessments thereafter becoming due. No Person who obtains title to a Lot or Condominium pursuant to a judicial or nonjudicial foreclosure of the first Mortgage is liable for the Assessments chargeable to such Lot or Condominium which became due before the acquisition SDH\30447.0001\361227.7 6/7/2007 -19-
of title to the Lot or Condominium by such Person. Such Assessments are a Common Expense collectible from all Owners including such Person.
5.9.5 Receivers. In addition to the foreclosure and other remedies granted the Association in this Declaration, each Owner, by acceptance of a deed to such Owner's Lot or Condominium, conveys to the Association all of such Owner's right, title and interest in all rents, issues and profits derived from and appurtenant to such Lot or Condominium, subject to the right of the Association to collect and apply such rents, issues and profits to any delinquent Assessments owed by such Owner, reserving to the Owner the right, before any default by the Owner in the payment of Assessments, to collect and retain such rents, issues and profits as they may become due and payable. On any such default the Association may, on the expiration of thirty (30) days following delivery to the Owner of the "Notice of Delinquent Assessment" described in this Declaration, either in person, by agent or by receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness secured by the lien described in this Declaration, (a) enter in or on and take possession of the Lot or Condominium or any part thereof, (b) in the Associat~on's name sue for or otherwise collect such rents, issues and profits, including those past due and unpaid, and (c) apply the same, less allowable expenses of operation, to any delinquencies of the Owner, and in such order as the Association may determine. The entering upon and taking possession of the Lot or Condominium, the collection of rents, issues and profits and the application thereof, shall not cure or waive any default or notice of default under this Declaration or invalidate any act done pursuant to such notice.
5.10. Mortgage Protection-Liens. Subject to Section 5.9.2(i) above, no lien created under this Article V, nor any breach of this Declaration, nor the enforcement of any provision hereof shall defeat or render invalid the rights of the Beneficiary under any Recorded Deed of Trust upon a Lot or Condominium Unit, made in good faith and for value. After a Beneficiary or other Person obtains title to a Lot or Condominium Unit by judicial foreclosure or by means of the powers set forth in such Deed of Trust, the Lot or Condominium Unit shall remain subject to the Restrictions and the payment of all installments of assessments and other obligations, accruing after the date the Beneficiary or other Person obtains title.
ARTICLE VI
DESTRUCTION OR CONDEMNATION
OF ASSOCIATION PROPERTY
Damage to, destruction or condemnation of all or any portion of the Association Property shall be handled in the following manner:
6.1. Damage by Owners. To the extent permitted by law, each Owner is liable to the Association for any damage to the Association Property not fully reimbursed to the Association by insurance (including any insurance policy deductible amounts) if the damage is sustained because of the negligence, neglect, willful misconduct or unauthorized or improper installation or maintenance of any Improvement by the Owner, and its Owner Representatives or any other Persons deriving their right and easement of use and enjoyment of the Association Property from the Owner, or Owner Representative. However, the Association, acting through the Board, may determine whether any claim will be made upon the insurance maintained by the Association, and after Notice and Hearing the Association may levy a Special Assessment equal to the SDH\30447.0001\361227.7 6/7/2007 -20-
increase, if any, in insurance premiums directly attributable to the damage caused by the Owner or the Person for whom the Owner may be liable as described above. In the case of joint ownership of a Lot or Condominium Unit, the liability of the Owners is joint and several, except to the extent that the Association has previously contracted in writing with the joint Owners to the contrary. After Notice and Hearing, the cost of correcting the damage, to the extent not reimbursed to the Association by insurance, shall be a Special Assessment.
6.2. Repair of Damages. If Association Property Improvements are damaged by fire or other casualty, any insurance proceeds payable by reason thereof shall be paid to the Association, which thereupon shall contract for the repair or replacement of all the Association Property Improvements so damaged. The Association shall levy a Reconstruction Assessment on Owners to satisfy any deficiency between insurance proceeds and the actual cost of repair or replacement in the same manner and proportion that Common Assessments are levied against and collected from Owners.
6.3. Condemnation of Association Property. If all or any portion of the Association Property, or any interest therein, is taken by right of eminent domain or by private purchase in lieu of eminent domain, the award in condemnation shall be paid to the Association and deposited in the applicable Maintenance Fund.
6.4. Condemnation of a Lot. If there is a taking of a Lot, the award in condemnation shall be paid to the Owner of the Lot; however, such award shall first be applied to the balance then due on any Mortgages encumbering such Owner's Lot, in order of priority.
6.5. Notice to Owners and Listed Mortgagees. The Board of Directors immediately upon learning of any taking by eminent domain of any Association Property, or any threat thereof, shall promptly notify all Owners whose Lots or Condominium Units are subject to Common Assessments for the maintenance of such Association Property, and all Record holders of first Mortgages on such Owners' Lots or Condominium Units. The Board, immediately upon learning of any damage or destruction affecting a material portion of the Association Property, shall promptly notify all Owners whose Lots or Condominium Units are subject to Common Assessments for the maintenance of such Association Property, and all holders of first Mortgages on Lots or Condominium Units who have filed a written request for such notice.
ARTICLE VII
DECLARANT EXEMPTION
Each Owner of a Lot or Condominium Unit which is part of the Properties acknowledges by acceptance of a deed or other conveyance therefore, whether or not it shall be so expressed in any such deed or other instrument, that Declarant has a substantial interest in assuring compliance with and enforcement of, the covenants, conditions, restrictions and reservations contained in this Declaration and any amendments thereto. Notwithstanding any other provisions of the Restrictions, until Declarant no longer owns a Lot or Condominium Unit in the Properties, neither the Association nor any of its Members shall do anything to interfere with Declarant's development activities for the Properties (including without limitation those described below), and nothing in this Declaration shall be understood or construed to: (a) prevent Declarant or its contractors or subcontractors, from doing on any Lot or Condominium SDH\30447.0001\361227.7 6/7/2007 -21-
Unit owned or controlled by Declarant whatever Declarant determines to be necessary or advisable in connection with the completion of such work, including without limitation the alteration of construction plans and designs as Declarant deems advisable in the course of development; or (b) prevent Declarant or its representatives, from erecting, constructing and maintaining on any portion of the Properties owned or controlled by Declarant, or its contractors or subcontractors, such structures as may be reasonably necessary for the conduct of its business of completing such work and disposing of the Lots and Condominium Units by sale, resale, lease or otherwise; or (c) prevent Declarant or its contractors or subcontractors, from conducting on any Lot owned or controlled by Declarant, its business of developing, altering, subdividing, grading and constructing Improvements to and on any portion of the Properties and of disposing thereof by sale, resale, lease or otherwise; or (d) prevent Declarant or its contractors or subcontractors, from maintaining such sign or signs on any portion of the Properties owned or controlled by Declarant as may be necessary in connection with the sale, resale, lease or other marketing of Lots and Condominium Units in the Properties; or (e) prevent Declarant, at any time prior to acquisition of title to a Lot or Condominium Unit by a purchaser from Declarant, to establish on that Lot or Condominium Unit additional licenses, reservations and rights-of-w~y to itself, to utility companies, or to others as may from time to time be reasonably necessary to the proper development and disposal of the Properties.
Without limiting the generality of the foregoing, no approval or consent of the Association or its Members shall be required for any change by Declarant of the Improvements on the Association Property or the Association Property, including without limitation any relocation or modification of driveways or walkways thereon. Prospective purchasers and Declarant may use any and all portions of the Association Property for access to the sales and leasing facilities of Declarant. All or any portion of the rights of Declarant, hereunder and elsewhere in these Restrictions may be assigned by Declarant, to any successor in interest to any portion of Declarant's interest in any portion of the Properties by an express Recorded written assignment which specifies the rights of Declarant so assigned.
ARTICLE VIII
INSURANCE
8.1. Casualty Insurance. The Board shall obtain and maintain fire and casualty insurance with extended coverage for loss or damage to all insurable Improvements which are a part of, or are located on, the Association- Property for the full replacement cost thereof without deduction for depreciation or coinsurance, and may obtain insurance against such other hazards and casualties as the Association may deem desirable. The Association may also insure any other real or personal property it owns against loss or damage by fire and such other hazards as the Association may deem desirable, with the Association as 'the owner and beneficiary of such insurance. The policies insuring the Association Property must be written in the name of, and the proceeds thereof must be payable to the Association. Unless the applicable insurance policy provides for a different procedure for the filing of claims, all claims made under such policy must be sent to the insurance carrier or agent, as applicable, by certified mail and be clearly identified as a claim. The Association shall keep a record of all claims made. The Association shall use insurance proceeds to repair or replace the property for which the insurance was carried.
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8.2. Insurance Obligations of Owners. Each Owner of a Lot shall obtain adequate casualty insurance and fire insurance in an amount as near as possible to the replacement cost, without deduction for depreciation or coinsurance, of all of the Improvements owned by such Owner. Each Lot and Condominium Unit Owner shall maintain fire and extended coverage insurance on the personal property and fixtures and other Improvements located within such Lot or Condominium Unit. Each Owner shall carry public liability insurance to cover its individual liability for damage to persons or property occurring upon its Lot or within its Condominium Unit, as applicable, or elsewhere upon the Properties, in any manner arising out of the use of such Owner's Lot or Condominium Unit. Such insurance shall be obtained and maintained with commercially reasonable limits and deductibles. If any loss intended to be covered by insurance carried by the Association shall occur and the proceeds payable thereunder shall be reduced by reason of insurance carried by any Owner, such Owner shall assign the proceeds of such insurance carried by him to the Association, to the extent of such reduction, for application by the Board to the same purposes as the reduced proceeds are to be applied.
8.3. Waiver of Subrogation. All policies of physical damage insurance the Association maintains must provide, if reasonably possible, for waiver of: (i) any defense based on coinsurance; (ii) any right of setoff, counterclaim, apportionment, proration or contribution due to other insurance not carried by the Association; (iii) any invalidity, other adverse effect or defense due to any breach of warranty or condition caused by the Association, any Owner or any tenant of any Owner, or arising from any act or omission of any named insured or the respective agents, contractors and employees of any insured; (iv) any rights of the insurer to repair, rebuild or replace, and, if any Improvement is not repaired, rebuilt or replaced following loss, any right to pay under the insurance an amount less than the replacement value of the Improvements insured; (v) notice of the assignment of any Owner of its interest in the insurance by virtue of a conveyance of any Lot or Condominium Unit; (vi) any denial of an Owner's claim because of negligent acts by the Association or other Owners; or (vii) prejudice of the insurance by any acts or omissions of Owners that are not under the Association's control. As to each policy of insurance the Association maintains which will not be voided or impaired thereby, the Association hereby waives and releases all claims against the Board, the Owners, the Association Manager and Declarant, and the agents and employees of each of the foregoing, with respect to any loss covered by such insurance, whether or not caused by negligence or breach of any agreement by such Persons, but only to the extent that insurance proceeds are received in compensation for such loss.
8.4. Liability and Other Insurance. The Association shall obtain comprehensive public liability insurance, including medical payments and malicious mischief, in such limits as it deems desirable with such minimum limits as are set forth in Section 1365.9 of the California Civil Code, insuring against liability for bodily injury, death and property damage arising from the Association's activities or with respect to property the Association maintains or is required to maintain including, if obtainable, a cross-liability endorsement insuring each insured against liability to each other insured. The Association may also obtain Worker's Compensation insurance and other liability insurance as it may deem desirable. The Board shall review all· insurance policies at least annually and adjust the limits in its discretion. The Board may also obtain such errors and omissions insurance, indemnity bonds, fidelity insurance and other insurance as it deems advisable, insuring the Board, the Association's officers and the Association Manager against any liability for any act or omission in carrying out their SDH\30447.0001\361227.7 6/7/2007 -23-
obligations hereunder, or resulting from their membership on the Board or on any committee thereof. However, fidelity insurance coverage which names the Association as an obligee must be obtained by or on behalf of the Association for any Person handling Association funds, including, but not limited to, Association officers, directors, employees and agents and Association Manager employees, whether or not such Persons are compensated for their services, in an amount not less than the estimated maximum of funds, in the Association's or Association Manager's custody during the term of such fidelity insurance. The aggregate amount of such bonds may not be less than one-fourth (1/4) of the Common Assessments on all Lots and Condominium Units in the Properties.
ARTICLE IX
MrscELLANEOUS
9.1. Term and Termination. This Declaration continues in full force until an instrument terminating this Declaration satisfying the requirements of an amendment to this Declaration as set forth in Section 9.2 of this Article is Recorded. 9 .2. Amendments.
9.2.1 By Declarant. So long as Declarant owns all or any portion of the Properties, this Declaration may be amended by Recording a written instrument signed by Declarant setting forth such amendment. Such amendment by Declarant shall not require the . approval of the other Owners.
9.2.2 By Owners. The provisions of this Declaration may be amended by Recording an instrument, signed and acknowledged by Declarant (for so long as Declarant owns a Lot or Condominium Unit in the Properties) and two (2) officers of the Association, setting forth the amendment and certifying that such amendment has been approved by Owners representing more than fifty percent (50°/o) of the voting power of the Association and the requisite percentage of holders and insurers of first Mortgages, in the case of those amendments which this Declaration requires to be approved by first Mortgagees. Amendments shall be effective upon Recordation. So long as Declarant owns a Lot or Condominium Unit in the Properties there shall be no amendment to the Restrictions without Declarant's written approval.
9.2.3 Approval of First Mortgagees. Notwithstanding the foregoing, any of the following amendments, to be effective, must be approved by more than fifty percent (50%) of first Mortgagees who have requested the Association to notify them of proposed action requiring the consent of a specified percentage of first Mortgagees, based upon the Class A and/or Class B votes allocated to a Lot or Condominium Unit, as applicable, pledged as security for the respective first Mortgage:
• (i) Rights of Lenders. Any amendment which affects or purports to affect the validity or priority of encumbrances or the rights or protections granted to .
Beneficiaries _of first Mortgages.
(ii) Lien Priority. Any amendment which would necessitate a Mortgagee after it has acquired a Lot or Condominium Unit through foreclosure to pay more SDH\30447.0001\361227.7 6/7/2007 -24-
than its proportionate share of any unpaid assessment or assessments accruing after such foreclosure.
(iii) Forfeitures and Taxes. Any amendment which would or could result in (a) an encumbrance being cancelled by forfeiture, or (b) an individual Lot or Condominium Unit not being separately assessed for tax purposes. (iv) Insurance and Condemnation. Any amendment relating to the insurance provisions of Article VIII, to the application of insurance proceeds or the disposition of any money received in any taking under condemnation proceedings. (v) Termination and Subdivision. Any amendment which would or could result in termination or abandonment of the Properties or partition or subdivision of a Lot in any manner inconsistent with the provisions of this Declaration; provided that termination of the legal status of the Properties as a common interest development for reasons other than substantial destruction or condemnation of the Properties must be approved by the institutional Record holders of more than fifty percent ( 50%) of the first Mortgages at the time of such amendment.
Any approval by a holder of a first Mortgage required under this Section 9.2.3, or required pursuant to any other provisions of the Restrictions, must either be given in writing, or is deemed given if, within thirty (30) days after receipt of written notice of the proposed action sent via registered or certified mail, return receipt requested, the holder does not submit a written response to the notice.
9.2.4 Certification. A certificate, signed and sworn to by two (2) officers of the Association that Members representing more than fifty percent (50%) of the voting power of the Association have voted for any amendment adopted as provided in 9.2.2 above, w~en Recorded, shall be conclusive evidence of that fact. The certificate reflecting any termination or amendment which requires the consent of any of the record holders of first Mortgages shall include a certification that the requisite approval of such holders of first Mortgages has been obtained or waived. The certificate reflecting any termination or amendment requiring Declarant's consent shall be signed and acknowledged by Declarant. The Association shall maintain in its files the record of all such votes and Mortgagee consent solicitations and disapprovals for a period of at least four (4) years.
9.3. Mortgagee Protection-General. Notwithstanding any other provision of this Declaration, no amendment or violation of this Declaration will defeat or render invalid the rights of the BenefiGiary under any Deed of Trust made in good faith and for value, and Recorded prior to the Recordation of such amendment ( or a Notice of Delinquent Assessment Recorded pursuant to Section 5.9). After the foreclosure of any such Deed of Trust such Lot or Condominium Unit remains subject to this Declaration, as amended. Notwithstanding any and all provisions of this Declaration to the contrary, in order to induce Lenders to participate in the financing of Lots and Condominium Units within the Properties, the following provisions are added hereto:
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9.3.1 Notice of Default. Each Beneficiary of a first Mortgage encumbering any Lot or Condominium Unit upon filing a written request for notification with the Board, is entitled to written notification from the Association of (i) any condemnation or casualty loss which affects either a material portion of the Properties or the Lot or Condominium Unit securing the respective first Mortgage; (ii) any delinquency of sixty (60) days or more in the performance by the Owner of such Lot or Condominium Unit of any obligation arising pursuant to this Declaration, including without limitation the payment of assessments or charges owed by the Owner of the Lot or Condominium Unit securing the respective first Mortgage, which notice each Owner hereby consents to and authorizes; (iii) a lapse, cancellation, or material modification of any policy of insurance or fidelity bond maintained by the Association; and (iv) any proposed action of the Association which requires consent by a specified percentage of first Mortgagees.
9.3.2 Lien Priority. Each first Mortgagee of a Mortgage encumbering any Lot or Condominium Unit and Recorded prior to a Notice of Delinquent Assessment pursuant to Section 5.9 which obtains title to such Lot or Condominium Unit pursuant to judicial foreclosure or the powers provided in such Mortgage takes title to such Lot or Condominium Unit free and clear of any claims for unpaid assessments or charges against such Lot or Condominium Unit which accrued prior to the time such Mortgagee acquires title to such Lot or Condominium Unit.
9.3.3 Books and Records. All Beneficiaries of first Mortgages on Lots or Condominium Units, upon written request to the Association, may examine current copies of the Association's books, records and financial statements and the Restrictions during normal business hours, and may require the Association to submit an annual financial statement for the preceding fiscal year without expense to the entity requesting the statement within one hundred twenty ( 120) days of the end of the fiscal year.
9.3.4 Mortgagee Notices. All Beneficiaries of first Mortgages who have filed a written request with the Association shall be given (i) written notice prior to the effective date of any proposed, material amendment to this Declaration or the Articles or Bylaws; (ii) written notice of all meetings of the Members and the right to designate in writing a representative who shall be authorized to attend all such meetings; and (iii) immediate written notice as soon as the Board receives notice or otherwise learns of any damage to the Association Property whenever the cost of reconstruction exceeds One Hundred Thousand Dollars ($100,000), and as soon as the Board receives notice or otherwise learns of any condemnation or eminent domain proceedings or other proposed acquisition, with respect to any portion of the Properties.
9.3.5 Association Property Taxes. First Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Association Property and may pay any overdue premiums on hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy, for such property, and first Mortgagees making such payments shall be owed immediate reimbursement therefor from the Association.
9.4. Notices. Any notice permitted or required to be delivered as provided herein shall be in writing and may be delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered two (2) business days after a copy of the same has been SDH\30447.0001\361227.7 6/7/2007 -26-
deposited in the United States mail, postage prepaid, addressed to any Person at the address given by such Person to the Association for the purpose of service of such notice of such Person if no address has been given to the Association. Such address may be ch_anged from time to time by notice in writing to the Association.
9.5. Enforcement and Non-Waiver.
9.5.1 Right of Enforcement. Subject to Sections 1354 and 1375 of the California Civil Code and Sections 9.5.7, 9.5 .. 8 and 9.12 below, the Association, the successors in-interest of the Association, any Owner and Declarant (so long as Declarant owns a Lot or Condominium Unit in the Properties), may enforce any of the provisions of the Restrictions against any portion of the Properties which is in noncompliance, and against each Owner, the Association, or any other Person responsible for the noncompliance. Such right shall include proceedings for damages, as well as proceedings to enjoin any violation of the Restrictions. The City shall also have the right, but not the obligation, to enforce any provisions of this Declaration.
9.5.2 Violations are Nuisance. Every act or omission whereby any provision of the Restrictions is violated in whole or in part is declared a nuisance and every remedy allowed by law or equity against a nuisance, either public or private, is applicable against every such violation and may be exercised as provided in Section 9.5.1 above.
9.5.3 Violation of Law. Any violation of any state, municipal or local law, ordinance or regulation pertaining to the ownership, occupation or use of any of the Properties is a violation of the Restrictions and subject to all of the enforcement procedures set forth in the Restrictions.
9.5.4 Remedies Cumulative. Each remedy provided by the Restrictions is cumulative and not exclusive. The Association may, without waiving the right to enforce its lien against the Lot or Condominium Unit, bring a suit at law to enforce each assessment obligation.
9.5.5 No Waiver. Failure to enforce any provision of the Restrictions does not waive the right to enforce that provision, or any other provision thereof.
9.5.6 Special Assessment. If any Owner violates the Restrictions, the Board may, after Notice and Hearing and in addition to the other remedies available, impose a reasonable Special Assessment upon such Owner for each violation and may as further provided in the Bylaws. The Board may also adopt a schedule of reasonable fines or penalties which, in its reasonable discretion, it may assess against an Owner for failure of the Owner or such Owner Representatives, to comply with any provision of the Restrictions, other than Article V hereof.
Such fines or penalties may only be assessed by the Board after Notice and Hearing.
9.5.7 Notice of Noncompliance. After notice and hearing, the Board may direct the officers of the Association to Record a notice of noncompliance against a Lot or Condominium Unit owned by any Member of the Association who has violated any provision of this Declaration. The notice shall include a legal description of the Lot or Condominium Unit and shall specify the provision of this Declaration that was violated, the violation committed, and the steps required to remedy the noncompliance. Once the noncompliance is remedied or the SDH\30447.0001\361227.7 6/7/2007 -27-
noncomplying Owner has taken such other steps as reasonably required by the Board, the Board shall direct the officers of the Association to Record a notice that the noncompliance has been remedied.
9.5.8 Limitation on Expenditures. The Association may not incur litigation expenses, including without limitation attorneys' fees, or borrow 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 approval of more than fifty percent (50%) of the 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 Section 1354 of the California Civil Code. Such approval is not necessary if the legal proceedings are initiated (i) to enforce the design control provisions contained in Article IV, (ii) to collect any unpaid assessments levied pursuant to this Declaration, or (iii) as a cross-complaint in litigation to which the Association is already a party. If the Association decides to borrow funds to pay for any litigation or pay for litigation from funds other than operating funds, such notice shall provide an explanation of why the litigation is being initiated or defended, why operating funds cannot be used, how and when the loan or other funds will be repaid, and a proposed budget for the litigation. The notice must state that the Members have a right to review an accounting for the litigation which will be available at the Association's office. The accounting shall be updated monthly.
9.6. Interpretation.
9.6.1 Restrictions Construed Together. The Restrictions shall be liberally construed to effectuate the fundamental concepts of the Properties as set forth in the Preamble to this Declaration. The Restrictions shall be interpreted so as to be consistent with applicable laws and regulations, including ordinances and regulations of the City, the County and other applicable governmental entities. The Restrictions shall be construed and governed by the laws of the State of California.
9.6.2 Restrictions Severable. Notwithstanding the provisions of Section 9.6.1, each of the provisions of the Restrictions is independent and severable, and the invalidity or partial invalidity of any provision or portion thereof shall not affect the validity or enforceability of any other provision.
9.6.3 Singular Includes Plural. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular; and the masculine, feminine or neuter shall each include the masculine, feminine and neuter.
9.6.4 Captions. All captions and titles in this Declaration are solely for convenience of reference and do not affect that which is set forth in any of the provisions hereof.
9.6.5 Time Periods. Except as otherwise expressly provided herein, any reference in this Declaration to time for performance of obligations or to elapsed time means consecutive calendar days, months, or years, as applicable.
9. 7. Reservation of Easements. Declarant hereby reserves to itself together with the right to transfer same easements of access, ingress and egress over the Properties for installation SDH\30447.0001\361227.7 6/7/2007 -28-
and maintenance of utilities and drainage facilities shown on a Subdivision Map or Maps for the Properties and for construction, installation, operation, replacement, repair and maintenance of all utility and service lines, systems and other devices and other Improvements which may be reasonably necessary for the development and marketing of Lots and Condominium Units within the Properties, including, but not limited to, water, sewer, gas, telephone, electrical, television and storm drain and water lines (collectively the "Facilities"). Within the location of the Facilities' easements and rights of way, no Improvement shall be planted or placed which may interfere with the use, maintenance or operation of the Facilities or which may be in violation of any ordinance or law of any applicable governmental authority.
9.8. No Public Right of Dedication. Nothing in this Declaration is a gift or dedication of all or any part of the Properties to the public, or for any public use:
9.9. Disclosures. Every person who owns, occupies or acquires any right, title, estate or interest in or to any Lot or Condominium Unit or other portion of the Properties agrees to every limitation, restriction, easement, reservation, condition and covenant contained herein, whether or not any reference to this Declaration is contained in the instrument by which such person acquired an interest in the Properties.
9.10. No Representations or Warranties. No representations or warranties of any kind, express or implied, have been given or made by Declarant or its agents or employees in connection with the Properties or any portion of the Properties, or any Improvement thereon, its physical conditions, zoning, compliance with applicable laws, fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof, except as specifically and expressly set forth in this Declaration.
9.11. Standard of Care, NonliabiHty.
9.11.1 Scope of Powers and Standard of Care.
(i) General Scope of Powers. Rights and powers conferred on the Board or other committees or representatives of the Association by the Restrictions are not duties, obligations or disabilities charged upon those Persons unless the rights and powers are explicitly identified as including duties, obligations or disabilities in the Restrictions or in applicable law. Unless a duty to act is imposed on the Board, or other committees or representatives of the Association by the Restrictions or applicable law, the Board and the committees have the right to decide to act or not act. Any decision to not act is not a waiver of the right to act in the future.
(ii) Business Affairs. This Subsection 9.11.1 (ii) 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 such 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 his duties, a Board member is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by:
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(1) One or more officers or employees of the Association whom the Board member believes to be reliable and competent in the matters presented; (2) Counsel, independent accountants or other Persons as to matters which the Board member believes to be within such Person's professional or expert competence; or
(3) A committee of the Board upon which the Board member does not serve, as to matters within its designated authority, which committee the director believes to merit confidence, so long as, in any such case, the director acts in good faith, after reasonable inquiry when the need therefore is indicated by the circumstances and without knowledge that would cause such reliance to be unwarranted. (4) This Subsection 9.11. l(ii) is intended to be a restatement of the business judgment rule established in applicable law as it applies to the Association. All amendments, modifications, restatements and interpretations of the business judgment rule appl_icable to the Association shall be interpreted to amend, modify, restate or interpret this Subsection 9.11. l(ii).
(iii) Association Governance. This Subsection 9.11.1 (iii) applies to Board actions and committee decisions in connection with interpretation and enforcement of the Restrictions, architectural and landscaping control, regulation of uses within the Properties, rule making and oversight of committees. Actions taken or decisions made in connection with these matters shall be reasonable, fair and nondiscriminatory.
9.11.2 Nonliability.
(i) General Rule. No Person is liable to any other Person (other than the Association or a party claiming in the name of the Association) for injuries or damage resulting from such Person's acts or omissions when the acts or omissions are within what the Person reasonably believed to be the scope of the Person's Association duties ("Official Acts''), except to the extent that injuries or damage result from the Person's willful or malicious misconduct. No Person is liable to the Association (or to any party claiming in the 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 such Person's willful or malicious misconduct.
The Association is not liable for damage to property in the Properties unless caused by the negligence of the Association, the Board, the Association's officers, the Manager or the Manager's staff.
(ii) Nonliability of Volunteer Board Members and Officers. A volunteer Board member or volunteer Association officer shall not be personally liable to any Person who suffers injury, including without limitation bodily injury, emotional distress, wrongful death or property damage or loss as a result of the tortious act or omission of the volunteer officer or Board member if all of the applicable conditions specified in Section 1365. 7 of the California Civil Code, as modified, amended, or replaced, are met.
9.12. Arbitration of Disputes. Any disputes between all or any of (a) the Association and/or any Owner(s) and (b) the Declarant or any member, director, officer, partner, agent or SDH\30447.0001\361227.7 6/7/2007 -30-
employee of Declarant ( collectively, "Declarant Parties") arising under this Declaration or relating to the Properties ( excluding disputes solely between Declarant and any other Declarant Party or Parties and disputes regarding payment of assessments) shall be submitted to final and binding arbitration before Judicial Arbitration and Mediation Services, Inc. ( "JAMS', or its successor, pursuant to the United States Arbitration Act, 9 U.S.C. Section I et seq. ("Arbitration',. Any party may commence the Arbitration process by filing a written demand for arbitration with the JAMS office located in the County, with a copy to the other party(ies).
The parties will cooperate with the JAMS and with one another in selecting an arbitrator from the JAMS panel of arbitrators, and in scheduling the Arbitration proceedings. The parties will share equally in its costs, unless the arbitrator orders otherwise. The provisions of this Section may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, to be paid by the party(ies) against whom enforcement is ordered. EACH OWNER, BY ACCEPTANCE OF A DEED TO A LOT OR
CONDOMINIUM, AND THE ASSOCIATION, BY ACCEPTANCE OF A DEED TO THE
ASSOCIATION PROPERTY, ACKNOWLEDGES AND AGREES THAT (A) ALL
DISPUTES DESCRIBED ABOVE SHALL BE RESOLVED BY ARBITRATION AND (B)
TO THE EXTENT PERMITTED BYLAW, EACH SUCH OWNER AND THE
ASSOCIATION, AS APPLICABLE, IS GIVING UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. [SIGNATURES ON FOLLOWING PAGE}
SDH\30447.0001\361227.7 6/7/2007 -31-
[SIGNATURE PAGE TO
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENTS FOR
WATERMAN BUSINESS CENTER]
Declarant has executed this D.eclaration as of the date set forth below.
Dated: CfW1e..--I 2- , 2007
SDH\30447.0001\361227.7 6/7/2007
WA TERMAN BP, LLC, a California limited
liability company
By: SEVENTH STREET DEVELOPMENT,
LLC, a California limited liability company
Its: Manager
By:
Its:
-32-
ST ATE OF CALIFORNIA )
COUNTY OF I t,S ~ 1_3 ~ ss
On .\ )Y'\, a . \ 1- , 200.J.,. before me, ~....:::e~u...a....Lv:o..::::.:....__'\--+-·-'-M....::::.....:....!.. 1 :].-0~ ..... ~f._-_;J
Notary Public, personally appeared -----= t!..i'---'~-'-O-\=~--=-+-S-J..L-::=-V-=------0-11-; 3.-.J.,.S.,__ _______ _ personally known to me ~f J'ffl (ea te me on the basis of satisfaetory e•,•teenee~ to be the perso~ whose nam~ islftre.subscribed to the within instrument and acknowledged to me that he~she/they executed the same in hisfher/thcii authorized capacity(ies), and that by hi~,'hctftheir signatur~ on the instrument the personfs'), or the entity upon behalf of which the perso~ acted, executed the instrument.
'
WITNESS my hand and official seal.
ST A TE OF CALIFORNIA
COUNTY OF _____ _
)
) ss
)
(SEAL)
On ________ , 200_, before me, _____________ ___,
Notary Public, personally appeared ____________________ _ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person( s ), or the entity upon behalf of which the person( s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature _____________ _
(SEAL)
SDH\30447.0001\361227.7 6/7/2007 -33-
ILLEGIBLE NOTARY SEAL DECLARATION
GOVERNMENT CODE 27361.7
I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows:
. Name of Notary __ ___.,_( .... M...:...L~(;\-=------'-Y-'-.__..:]);:__r_i_-zo-=--5=------------- Commission Number ____ _.i_7-=.....3o<Q'-=U;.._3=-?L-L? ____________ _ Date Commission Expires. ___ ....aN_O"'----'-\/_,_J-_o ___ , -=J-o __ l_D __________ _ County Where Bond is Filed. ___ ----'--L_o;:;...._;;_s_____;A-vl....:......:.....:.,,B~e::;......,..:fes""""'"----------- Place of Execution of this Declaration Irvine CA 92614 ~=--=-'--""=-=-='-'-------------- Date. ____ ____,,Ji~IAM ............... :t:,...""'---=i_,,&½/.___,,r/:...._~:e::.....co:e::.....c7~--------- ~ Q_ ~~
LandAmerica Commercial Services
SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in and under that certain Deed of Trust dated October 24, 2005, and recorded on October 27, 2005, in the Official Records of San Bernardino County, California, as Instrument No. 2005-0807833, which Deed of Trust is between Waterman BP, LLC, a California limited liability company, as Trustor, Commonwealth Land Title Company, as Trustee, and JPMorgan Chase Bank, N.A., as Beneficiary, hereby expressly subordinates such Deed of Trust and its beneficial interests thereunder to the foregoing Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Waterman Business Center ("Declaration'') and to all easements to be conveyed to the Association in accordance with the Declaration. By executing this Subordination, the undersigned agrees that should the undersigned acquire title to all or any portion of the Properties by foreclosure (whether judicial or nonjudicial), deed-in-lieu of foreclosure or any other remedy in or relating to the Deed of Trust, the undersigned will acquire title subject to the provisions.of the Declaration, which shall remain in full force and effect. •
-Dated: _) "'/' {.. ) '3 , 2007 JPMORGAN CHASE BANK, N.A., a national banking
By:
By:
SDH\30447.000 I \361227.7 6/7/2007 -34-
STATE OF CALIFORNIA
COUNTY OF :tf\o._r ~ct9~
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) ss
)
On :S, , "L \ ~ , 200 ..J.., before me, ~~~.,_:::~~~~~~~~__, Notary Public, personally appeared _i;;-~OL,J~:'.!:::a~u_k_:~~~1&:c~---.t.l...L..J:..L..-1..;~l...O!..~r:__ personally known to me ( or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
,
Signature_..:.-.,.c~~~~~~~~-----
STA TE OF CALIFORNIA
COUNTY OF 1¥\0l.ttcdf-
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) ss
)
OFFICIAL SEAL
KELLY A. JACKOWSKI
NOTARY PUBLIC.-ARIZONA
MARICOPA COUNTY
MY Comm. Expires Oct. 10, 2009
(SEAL)
0~ d ,>ct l?J , 20(Q_, beforeruie,µ~-....C...:...µ~~=LI1¥.:~~·--' N otary Puhl ic, personally appeared .L.~LJ/\l!t)~o-~-~L::....:....-.2.1\.l~: ~~~~.-l~~----1..i:b:~~~l.._ __ personally known to me ( or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person( s ), or the entity upon behalf of which the person( s) acted, executed the instrument.
WITNESS my h d and official seal.
'
OFFICIAL SEAL
KELLY A. JACKOWSKI
_ NOTARY PUBLIC -ARIZONA
~ i· ·,.,,, j MARICOPA COUNTY
My Comm. Expires Oct. 10, 2009
(SEAL)
SDH\30447.0001\361227.7 6/7/2007 -35-
EXHIBIT "A"
TRACT MAP
SDH\30447.0001\361227.7 6/7/2007
SCALE: 1 "=80' SHEET J OF 6 SHEETS
IN THE CITY OF SAN BERNARDINO, SAN BERNARDINO COUNTY, CALIFORNIA LEGEND
TRACT MAP NO. 18083
FOR OFFICE/CONDOMINIUM PURPOSES, LOTS 1 & 2 ONLY. 14 UNITS PER LOT BEING A SUBDMSION OF LOTS 9 TO JO, INCLUSIVE, or TRACT 6548, IN THE CITY or SAN BERNAROINO, COUNTY or SAN BERNARDINO, ST4T[ OF CALIFORN14, AS PER PLAT RECORDED IN BOOK 84, PAGES 39 AND 40 INCLUSIVE or I.IAPS. IN THE OfFICE or THE COUNTY RECORDER or SAID COUNTY. rtl E(ll911.M)IW(t
~-~&:'Kl!i-,
fl 141•621.
SC~LE: \"=80'
-=::r---'Z; :p.
80UNOARr or fHC
------LJ,.tr,'O 8trNC SU8UMOtO
BY' rH1S MAP \.._ __________ a_lK_:::::,,~------
------ N(W lOT UN(
- - -- -- - tAS!l.l(NT LIN!
-- - - -- [X,SllNC t.Ol I.IN(
AO\//
-- - -- SUt[[T CCNJ[Rc,.tNC
@ UO£l1U FOJNO "'.0/.v,qnT AS NOTiO
0 SCI J;t' (1,0,J MON PiK., TAGGID "ICl "60♦"
D sna-·o.o,Jt.P.1,fAGSTN'IP£011:CE n&otON.o.n·
{ , IU<O~ DAU. fta TIUiCT I«) 6W "-'I 800( &4 PAGH 19-IO MONUMENT t-lOTE:
VICINITY MAP
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J;•· {10 J ~ 'l'l, RC( lt60t, TO IE Sn' f\l/SMAl AU. F(()t."f AA"O RW LOT COMDS AHO N«:U: POINTS. Pl nu:cvoo TkAT A J/ ◄ "(11) I tllOt~ ~ CAV.OT&t SlT. A l£A0 l>t0 TAG, .a "604 SI-WJ. IE $ET
TOTM. ~ WITHIN TlilS MAP ■ 513,338 SJ!.
EASEMENTS
0 NI (AS(rJ(kl IN rAYOR Of lH[ Pu8t.lC ovtR NtJ [J:!Sfl'.IC ~DS Lr.NC WITMIN SM) UNO. 8l,AKI((( IN Nl,.TUR[.
© II n. S[W(R: U.S[U[NI tO ltt( Cll'V or SAN
etRKMOINO. SH OCT~lS ~ ~t1£tl ,.
@ PRl'."At( 2, n RCCIPROCAI. ACC(SS (Jr.S(U(P(I roR TK[ scm:rn or lOTS I .lNO l SH O(TM.5 011 SH[tt 4
@ E>.SC"[r<I Of SOUlHCRN CJ.l~ORN~ CDISO.S CO.,,,ANT fOR POL! UN! Al<O/OQ CCN()UIT R(C 1/16/196l IN 8K. ~J~. PC 867, 0.R. (!) (AS(U(NI 01 (tf( cm Of w, 8(Rn.lR01t10 rQSf SAN1TAR'( 5[W(R PURPOSCS P(R 1R.t.CT Pl() ~a. we. 8'/39-CO,
@ Ct.SMHl TO Th{ CITY OT $.\>. 8[il;.lQl)l.'vO (OR WAl(R UN[ PtmPOS!~ C(OICA1CO H[A(O."I. SC[ 0£lAll ON Sl-t((T 6
BASIS OF B[ARINGS
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369 sso·06·2~·c
20J S80'26'25"(
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0.96 seo•06'25tc
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3000 SO\l'~l.J5'W
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WATERMAN
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AVENUE
MB. Yl2
FOR BOUN04RY ESTABLISHMENT OETAll, SE[ SHEET 2
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EXHIBIT "B"
ASSOCIATION PROPERTY
The gravel infiltration trench, appurtenant catch basins and filter(s) servicing Lots 2 through 12 of Tract No. 18083 and the catch basins, storm drain pipes and filters on Lots 1 and 2 of Tract No. 18083.
The Common Fire Water System.
SDH\30447.0001\361227.7 6/7/2007
EXHIBIT "C"
DRAWINGS SHOWING COMMON DRIVEWAYS
SDH\30447.0001\361227.7 6/7/2007
\.,'" SIEEI E BQAD
. I
'
I I - 1111 I 11 I n I I I I I I I 8 I I I I I I I I I I I I • •-~ j ., 11111111 lllllllllU 11111111 1111 II 11- ~
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I ~ ~ ----J:I'-.~- m LEGEND
j I I I
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~ COMMON DRIVEWAYS
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6 _11E_ll::;;;ll;f_Qlfl_~ll&;·ls ~\~ 11;;;0;;11~11:;;;l;;;;l l;;;;I ;;:;0;;;; II= 11= 11=1= lr7~~~L::j -------------=======----~-- ---- --- ---- ~ )"-----, ... '--- WATERMAN AV .... ENIJ.Jl'-£,IJE ___ _
- - -18710 S. Wilmington Ave., Suite 203 - EXHIBIT "C" Plot-nil< -g- - Associates
Rancho Dominguez, California 90220
Tel: (310) 605-6657
Fax: (310) 605-6658
www.plotnik.com
DRAWING SHOWING COMMON DRIVEWAYS
SCALE: 1 "= 150' DATE: 4/27 /07
• CIVIL ENGINEERING • LAND SURVEYING
BY: ' JEK JOB NO.: 278.00
• EXHIBIT "D"
PERCENTAGE SHARE OF COMMON EXPENSES
Percentage Share of.
Lot Common Expenses
3 8.51%
4 6.71%
5 5.77%
6 5.00%
7 5.01%
8 7.17%
9 6.85%
10 ,5.74%
11 5.88%
12 7.98%
SDH\30447.000l\361227.7 6/7fl.007
Condo Unit
A-1
A-2
A-3
A-4
A-5
A-6
A-7
A-8
A-9
A-10
A-12
A-13
A-14
B-1
B-2
B-3
B-4
B-5
B-6
B-7
B-8
B-9
B-10
B-11
B-12
B-13
B-14
Total for Lots
and Condos:
Percentage Share of
Common Expenses
2.20%
1.08%
1.10%
1.10%
1.08%
1.08%
1.09%
1.09%
1.08%
1.08%
1.10%
1.08%
1.89%
2.36%
1.11 %
1.13%
1.13%
1.11 %
1.11 %
1.12%
1.12%
1.11 %
1.11%
1.13%
1.13%
1.11 %
2.45%
100.00%
E>CH ,a,r '1 e: II
ARTICLES OF INCORPORATION
OF
WATERMAN BUSINESS CENTER ASSOCIATION
ONE: The name of this corporation ("Corporation" herein) is WA TERMAN BUSINESS CENTER ASSOCIATION.
TWO:
A. This Corporation is a nonprofit mutual benefit corporation organized under the Nonprofit Mutual Benefit Corporation Law. The purpose of this corporation is to engage in any lawful act or activity, other than credit union business, for which a corporation may be organized under such law.
B. The specific purpose of this Corporation is to operate an owners association to manage a common interest development under the Davis-Stirling Common Interest Development Act.
THREE: The name and address in the state of California of this Corporation's initial agent for service of process is: Craig Furniss, 3780 Kilroy Airport Way, Suite 125, Long Beach, CA 90806.
FOUR: Notwithstanding any of the above statements of purposes and powers, the Corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the specific purpose of this Corporation.
FIVE: This Corporation is an association formed manage a common interest development under the Davis-Stirling Common Interest Development Act.
SIX: This Corporation does not have a business office. The nine-digit zip code of the common interest development is 92408-0000. The front street and the nearest cross street to the common interest development are Industrial Road and Waterman A venue.
SEVEN: The name and address of the association's managing agent is Mar West Real Estate, 202 Fashion Ln., Suite 221, Tustin, CA 92780.
SDH\30447.0001\359624.I 6/7/2007 1
The undersigned, who is the incorporator of the Corporation, has executed these Articles of Incorporation on :[yV)e, 12- , 2007.
SDH\30447.0001\359624.J 6/7/2007
P~N~e: __ Q_~-~-\-~~~f-~_r_~_1&~5~_
"Incorporator"
2 BYLAWS
OF
WA TERMAN BUSINESS CENTER ASSOCIATION
DESCRIPTION
TABLE OF CONTENTS
FOR BYLAWS
OF
WATERMAN BUSINESS CENTER ASSOCIATION
PAGE
ARTICLE I PLAN OF OWNERSHIP ...................... 7 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 1
1.1. Definitions and Interpretation .................................................................................. 1
1.2. Name ........................................................................................................................ l
1.3. Application .................................. ............................................................................. 1 ARTICLE II BOARD OF DIRECTORS ......................................................................................... I
2.1. Number .................................................................................................................... !
2.2. Qualifications for Holding Office ............................................................................ 1
2.3. Election .................................................................................................................... 3
2.4. Term of Office ......................................................................................................... 3
2.5. Vacancies ................................................................................................................. 3
2.6. Removal of Directors ............................................................................................... 3
2. 7. Compensation .......................................................................................................... 4
2.8. Powers and Duties .................................................................................................... 4
2.9. Special Powers and Duties ....................................................................................... 4
2.10. Distribution of Information ...................................................................................... 5
2.11. Meetings ................................................................................................................... 6
2.12. Action Without Meeting ........................................................................................... 8
2.13. Quorum and Adjournment ....................................................................................... 8
2.14. Committees .............................................................................................................. 8 ARTICLE III OFFICERS ................................................................................................................ 8 3 .1. Designation .............................................................................................................. 8 3 .2. Election of Officers .................................................................................................. 8
3.3. Removal of Officers ................................................................................................. 8 3 .4. Compensation .......................................................................................................... 8
3. 5. . President ................................................................................................................... 9 3 .6. Vice President .......................................................................................................... 9
3. 7. Secretary ..................................... ............................................................................. 9 3 .8. Treasurer .................................................................................................................. 9 ARTICLE IV OWNERS ................................................................................................................ 10
4.1. Voting Rights ......................................................................................................... 10
4.2. Majority of Quorum ............................................................................................... 10
4.3. Quorum .................................................................................................................. 10
4.4. Proxies .................................................................................................................... 10
4.5. Place of Meetings of Owners ................................................................................. 10 SDH\30447.0001\361335.2 6nl2007 -1-
DESCRIPTION PAGE
4.6. Annual Meetings of Owners .................................................................................. 10
4. 7. Special Meetings of Owners .................................................................................. 11
4.8. Notice ..................................................................................................................... 11
4.9. RecordDateS ................................................................... : ...................................... 11
4.10. Adjourned Meetings ............................................................................................... 11
4.11. Order ofBusiness ................................................................................................... 12
4.12. Action Without Meeting .................. ." ..................................................................... 12 4 .13. Consent of Absentees ............................................................................................. 12
4.14. Minutes, Presumption of Notice ............................................................................ 12
4.15. Inspector of Election .............................................................................................. 13 ARTICLE V AMENDMENTS ...................................................................................................... 13 ARTICLE VI MISCELLANEOUS ............................................................................................... 13
6. l . Checks, Drafts and Documents .............................................................................. 13
6.2. Conflicts ................................................................................................................. 14
6.3. Execution ofDocuments ........................................................................................ 14
6.4. Availability of Association Documents ................................................................. 14
6.5. FiscalYear ............................................................................................................. 15 ARTICLE VII NOTICE AND HEARING PROCEDURE .......................................................... .15
7. l . Initial Complaint .................................................................................................... 15 7 .2. Scheduling Hearings ............................................................................................... 15 7 .3. Conduct of Hearing ................................................................................................ 15
7.4. Imposition of Sanctions ......................................................................................... 15
7.5. Limits on Remedies ............................................................................................... 16 SDH\30447.0001\361335.2 617/2007 -11-'
BYLAWS
OF
WATERMAN BUSINESS CENTER ASSOCIATION
ARTICLE I
PLAN OF OWNERSHIP
1.1. Definitions and Interpretation. Unless otherwise provided in these Bylaws, the capitalized terms used in these Bylaws have the same meanings as in the Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Waterman Business Center ("Declaration'J· These Bylaws shall be interpreted in accordance with Section 1.2 of the Declaration.
1.2. Name. The name of the corporation is Waterman Business Center Association.
The principal office of the Association shall be located in such location as is designated by the Board.
1.3. Application. These Bylaws apply to the commercial project known as Waterman Business Center, located in the County of San Bernardino ("County'J· All Persons who use the facilities of the Properties in any manner are subject to the regulations in these Bylaws and in the Declaration, Recorded in the Official Records of the County against the Properties. Use of any Lot or Condominium in the Properties signifies acceptance and ratification of these Bylaws.
ARTICLE II
BOARD OF DIRECTORS
2.1. Number; Election by Class. The property, business and affairs of the Association shall be governed and managed by a Board of Directors initially composed of three (3) persons, each of whom must be either an Owner or an agent of Declarant until Declarant no longer owns a Lot or Condominium in the Properties. One Director shall be elected by the Class A Members, one Director shall be elected by the Class B Members, and one Director shall be elected by the entire voting power of the Association. The authorized number of Directors may be increased to five (5) upon the Board's adopting a resolution so increasing the authorized number of Directors. If the authorized number of Directors is increased to five (5), then two Directors shall be elected by the Class A Members, two Directors shall be elected by the Class B Members, and one Director shall be elected by the entire voting power of the Association. Any other change in the authorized number of Directors shall require a duly adopted amendment to these Bylaws. Notwithstanding anything to the contrary in the foregoing or in the Declaration, Declarant shall have the right to appoint (a) the Class A director(s) for so long as Declarant owns any Lot, and (b) the Class B director(s) for so long as Declarant owns any Condominium Unit.
2.2. Qualifications for Holding Office. Each Director, except for those initially appointed by Declarant to serve as interim Directors until the first annual meeting, must either be SDH\30447.0001\361335.2 6/7(2007 -1-
an Owner who meets the qualifications in this Section 2.2 or, as long as Declarant owns any portion of the Properties, an agent of Declarant.
2.2. l Candidacy Requirements for Owners. Owners who meet the following criteria are qualified to be elected to the Board of Directors: • (a) The Owner must be in compliance with the Restrictions for the three (3) months immediately preceding the date of the election at which the Owner is being considered for election to the Board of Directors or during such Owner's period of ownership if the Owner acquired its Lot or Condominium Unit within such three (3) month period. To be in compliance, the Owner must correct, within five (5) days after receipt of notice by the Association, any violation of the Restrictions for which the Owner has been determined to be responsible pursuant to applicable due process requirements; and (b) The Owner must be current in the payment of all Assessments for the three (3) months immediately preceding the date of the election at which the Owner is being considered for election to the Board of Directors or during such Owner's period_ of ownership if the Owner acquired its Lot or Condominium Unit within such three (3) month period.
2.2.2 Incumbent Requirements. To remain qualified to serve on the Board of Directors, an Owner who has been elected to the Board of Directors must:
(a) Not be absent from more than three (3) consecutive regularly scheduled meetings of the Board; •
(b) Attend at least seventy-five percent (75%) of the Board meetings held during the year and attend the entire meeting each time; (c) Comply with every duly approved action of the Board; (d) Comply with the Restrictions and correct, within five (5) days after receipt of notice by the Association, any violation of the Restrictions for which that Director has been determined to be responsible pursuant to applicable due process requirements; (e) Not be more than three (3) months in arrears in the payment of any Assessment;
(f) Exhibit respect, professionalism and courteous behavior to Owners, committee members, vendors, the Manager and its staff, and any other Persons associated with or retained by the Association;
(g) Refuse any type of gain, such as money, services, products, gifts or gratuities of a significant value, as determined by a majority vote of the Directors who meet all of the required qualifications to serve as such, which gain is offered in relation to the Owner's service as a Director. In addition, the Owner must disclose such offers at an open meeting of the Board. Compensation for services duly approved by the Board and unrelated to duties as a Director or Officer of the Association, and reimbursement of expenses associated with services to the Association, do not constitute prohibited gain within the meaning of this subsection; and SDH\30447.0001\361335.2 6nf2.007 -2-
(h) Not act in a manner determined by a majority vote of the Directors to be grossly detrimental to the general safety, health or welfare of the Association and its members.
2.3. Election.
2.3.1 General Procedure. At the first annual meeting of the Owners, and at each annual meeting thereafter, the Owners shall elect new Directors to fill vacancies on the Board. If an annual meeting is not held, or all positions on the Board are not filled at the annual meeting, Board members may be elected at a special meeting of the Owners.
2.3.2 Voting. Voting shall be by secret written ballot. After Declarant ceases to appoint Directors, an Owner may cumulate his votes for any candidate for the Board in any election in which more than two (2) Directors are to be elected if (a) the candidate's name has been placed in nomination before the voting, and (b) an Owner has given notice at the meeting before the voting of such Owner's intent to cumulate votes. If an Owner cumulates his votes, such Owner may cast a number of votes equal to the Owner's share of the voting power multiplied by the number of Directors to be elected.
2.4. Term of Office. Each Director shall hold office until the earlier to occur of (a) the end of the Director's term of office after a successor has been elected, or (b) his death, resignation, removal or judicial adjudication of mental incompetence. At the first annual meeting, the term of office of each Director elected two (2) years; provided that until Declarant no longer owns a Unit in the Properties Declarant shall be entitled to appoint all Directors. The term of office of each Director elected to fill a vacancy created by expiration of a Director's term of office shall be two (2) years. The term of office of each Director elected or appointed to the Board for any other reason shall be the balance of the unserved term. Any person serving as a Director may be reelected. There is no limit on the number of terms which a Director may serve.
2.5. Vacancies. A vacancy on the Board is deemed to exist in case of death, resignation, removal or judicial adjudication of mental incompetence of any Dir:ector or if the Owners fail to elect the full number of authorized Directors at any meeting at which a Directors election is to take place. Vacancies on the Board caused by any reason other than the removal of a Director may be filled by either (a) vote of a majority of the remaining Directors, even though they may constitute less than a quorum, or (b) by vote of the Owners at a meeting; provided that until Declarant no longer owns a Unit in the Properties all vacancies shall be filled by Declarant.
Any vacancy caused by the removal of a Director must be filled by a vote of the Owners. A Director may resign at any time by giving notice to the President, the Secretary or the Board.
Any Director who ceases to be an Owner or an agent of Declarant is deemed to have resigned from the Board.
2.6. Removal of Directors. After Declarant no longer owns a Unit in the Properties, at any meeting of the Owners, any individual Director or the entire Board may be removed before the expiration of their terms of office with or without cause by the vote of Owners representing a majority of the Association's voting power (including votes attributable to Declarant). However, if the entire Board is not removed as a group pursuant to a single vote, no individual Director may be removed if the number of votes cast against removal would be SDH\30447.0001\361335.2 6/7/2007 -3-
sufficient to elect such Director if voted cumulatively at an election at which the same total number of votes were cast and the entire number of Directors authorized at the time of the Director's most recent election were then being elected. Any Director whose removal has been proposed by the Owners must be given an opportunity to be heard at the meeting. If any Directors are removed, new Directors may be elected at the same meeting. However, any Director elected to office solely by the votes of Owners other than Declarant may be removed only by the vote of at least a simple majority of the Association's voting power represented by Owners other than Declarant. Any Director elected or appointed to office solely by Declarant may only be removed by Declarant.
2.7. Compensation. Directors may not receive any compensation for their services as Directors unless such compensation is first approved by Owners representing at least a majority of the Association's voting power. However, (a) nothing in these Bylaws precludes any Director from serving the Association in some other capacity and receiving compensation therefor, and (b) any Director may be reimbursed for actual expenses incurred in performance of Association duties, and (c) no officer, employee or director of Declarant or any affiliate ofDeclarant may receive any compensation for service as a Director of the Association.
2.8. Powers and Duties. The Board has the powers and duties necessary to administer the Association's affairs. All the Association's powers shall be exercised by the Board except those powers specifically reserved to the Owners.
2.9. Special Powers and Duties. Without limiting the scope of the Board's general powers and duties, the Board is granted the following powers and duties:
2.9.1 Officers, Agents and Employees. The power and duty to select, appoint and remove all Association officers, agents and employees, to prescribe such powers and duties for them as may be consistent with law and with the Restrictions, to fix their compensation, to require from them such security for faithful service as the Board considers advisable, and to contract to provide them with such indemnification as the Board determines is appropriate.
2.9.2 Contracts.
(a) The power to enter into contracts. This includes contracts (a) for maintenance, landscaping, and common utilities services, (b) materials, supplies and other Common Expenses relating to the Lots or Condominiums, (c) employing personnel necessary to manage the Properties, including legal and accounting services, and ( d) paying for Improvements on the Association Property.
(b) The power to enforce the Restrictions and any agreements entered into by the Association and to impose sanctions against Owners for violating the Restrictions.
2.9.3 Principal Office, Place of Meetings, Seal. The power, but not the duty, to move the Association's principal office to any location selected by the Board; to designate any place in the County for holding any meetings of Owners consistent with the provisions of Section 4.5; and to adopt and use a corporate seal and to alter the form of such seal.
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2.9.4 Assessments. The power and duty to fix and levy Assessments and identify the due date for payment of Assessments. The Board may incur Common Expenses.
The Association's funds shall be held in trust for the Owners.
2.9.5 Insurance. The power and duty to contract and pay for insurance in accordance with the Declaration, covering and protecting against such damages or injuries as the Board considers advisabl~ (which coverage may include medical expenses of persons injured on the Association Property). The Board shall review, not less frequently than annually, all insurance policies and bonds obtained by the Board on the Association's behalf.
2.9.6 Delegation. The power, but not the duty, to delegate its powers according to law.
2.9.7 Bylaws. The power and duty to adopt these Bylaws.
2.9.8 Records. The power and duty to keep a complete record of Association acts and corporate affairs.
2.9.9 Sale of Property. The power, but not the duty, to sell property of the Association. Approval from Owners representing at least a majority of the Association's voting power must be obtained before property of the Association having an aggregate fair market value greater than ten percent ( 10%) of the Association's budgeted gross expenses for the Fiscal Year is sold in a single Fiscal Year.
2.9.10 Manager. The power to engage a professional Manager for the Association at a compensation established by the Board to perform such duties and services as the Board authorizes.
2.9.11 Agreements with Declarant. The power, but not the duty, to negotiate and enter into agreements with Declarant. •
2.9 .12 Adoption of Election Rules. The power and duty to adopt election rules in accordance with Section 1363.03(a) of the California Civil Code.
2.10. Distribution of Information. The Board shall distribute the following financial information to all Owners (and any Beneficiary, insurer and guarantor of a first Mortgage on request), regardless of the number of Owners or the amount of assets of the Association:
2.10.1 Budget. A pro forma operating budget for each Fiscal Year consisting of at least the following information must be distributed to the Members annually not less than thirty (30) nor more than ninety (90) days prior to the beginning of each Fiscal Year:
(a) Estimated revenue and Common Expenses computed on an accrual basis.
(b) A summary of the Association's reserves (if any).
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(c) All other information required under California Civil Code Section 1365.2.5.
2.10.2 Financial Report. A report consisting of the following must be distributed within one hundred twenty (120) days after the close of the Fiscal Year. (a) A balance sheet as of the end of the Fiscal Year.
(b) An operating (income) statement for the Fiscal Year. ( c). A statement of changes in financial position for the Fiscal Year. (d) Any information required to be reported under Section 8322 of the California Corporations Code.
(e) A statement of the place where the names and addresses of the current Owners are located.
If the report referred to in Section 2.10.2 is not prepared by an independent accountant, it must be accompanied by the certificate of an authorized Association officer stating that the statement was prepared from the Association's books and records without independent audit or review.
2.10.3 Accounts. On at least a yearly basis, the Board shall: (a) cause to be completed and review a current reconciliation of the Association's accounts, (b) review the. income and expense statement for the Association's accounts.and (c) review the most current account statements prepared by the financial institutions where the Association keeps its accounts.
2.11. Meetings.
2.11.1 Organization Meeting. The first regular ("organization") meeting of a newly elected Board must be held within thirty (30) days of election of the Board, at such place as is fixed and announced by the Directors at the meeting at which such Directors were elected, to organize, elect officers and transact other business. No notice is necessary to the newly elected Directors to hold such meeting; provided that (a) a majority of the whole Board is present when the time and place are announced at the annual meeting and (b) the meeting is held on the same day and at the same place as the annual meeting of the Owners at which the newly constituted Board was elected.
2.11.2 Regular Meetings. Regular meetings may be held at such time and place in the Properties as is determined by a resolution adopted by a majority of a quorum of the Directors no less frequently than may be required by law from time to time. Notice of the time and place of regular meetings of the Board shall be given to each Director at least four ( 4) days before the date of the meeting. Notices may be given personally or by telephone, including a voice messaging system or other system or technology designed to record and communicate messages, facsimile, electronic mail, or other electronic means or posted at a prominent place or places in the Association Property.
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2.11.3 Special Meetings. Special meetings may be called by the President or by any two (2) Directors by posting notice at least four (4) days before such meeting at a prominent place or places in the Association Property or on four (4) days' notice by first-class mail or forty eight (48) hours' notice delivered personally or by telephone, including a voice messaging system or other system or technology designed to record and communicate messages, telegraph, facsimile, electronic mail, or other electronic. means. The notice must state the time, place and the purpose of the meeting.
2.11.4 Executive Sessions. The Board may convene in executive session to (a) discuss and vote upon personnel matters, litigation, matters relating to the formation of contracts with third parties, or Owner discipline or (b) meet with an Owner, upon the Owner's request, regarding the Owner's payment of Assessments, as specified in California Civil Code Section 1367 or 1367.1. The nature ofbusiness to be considered in executive session must first be announced in an open session and must be generally noted in the minutes of the Board. In any matter relating to the discipline of an Owner, the Board shall meet in executive session if requested by that Owner. The Owner may attend the executive session.
2.1 1.5 Other Meetings. Any congregation of a majority of the members of the Board at the same time and place to hear, discuss, or deliberate on any item of business scheduled to be heard by the Board, except those matters that may be discussed in executive session, shall constitute a meeting of the Board. All Owners shall have the right to attend any regular, special or other meeting of the Board, ·except an executive session. Owners who are not Directors may not participate in any deliberation or discussion at such meetings unless authorized by a vote of a majority of a quorum of the Board. However, at each Board meeting, except for executive sessions, the Board must set aside time for Owners to speak, subject to reasonable limits imposed by the Board.
2.11.6 Notice to Owners. Generally, if a meeting of the Board is not a regular or special meeting, Owners shall be given notice of the time and place of the meeting at least four (4) days before the meeting. Notice required by this Section may be given by posting the notice in a prominent place or places in the Association Property, by mail or delivery of the notice to each Lot or Condominium in the Properties, or by newsletter or other similar means of communication. If there are circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the Board and which of necessity make it impractical to provide notice to the Owners, then an emergency meeting of the Board may be called by the President or any two (2) other members of the Board without providing notice to the Owners.
2.11.7 Waiver of Notice. Before or at any meeting of the Board, any Director may, in writing, waive personal notice of such meeting. Attendance by a Director at any Board meeting waives the requirement of personal notice. If all Directors are present at a Board meeting, no notice to Directors is required and any business may be transacted at such meeting.
The transactions of any Board meeting, however called and noticed or wherever held, are valid as though had at a meeting duly held after regular call and notice, if (a) a quorum is present, (b) notice to the Owners of such meeting was posted as provided in Sections 2.11.2, 2.11.3 or 2.11.6, and (c) either before or after the meeting, each of the Directors not present signs a written waiver of notice, a consent to holding such meeting, or an approval of the Minutes thereof. The SDH\30447.0001\361335.2 6/7/2007 -7-
Secretary shall file all such waivers, consents and approvals with the Association's records or make them a part of the Minutes of the meeting.
2.12. Action Without Meeting. The Board may act without a meeting if all Directors consent in writing to such action. Written consents must be filed with the minutes of the Board.
Each action by written consent has the same effect as a unanimous vote of such Directors.
Within three (3) days after the written consents of all Directors have been obtained, an explanation of any action taken by unanimous written consent without a meeting must be either (a) posted by the Board in a prominent place or places in the Association Property, or (b) communicated to the Owners by other means the Board determines to be appropriate.
2.13. Quorum and Adjournment. Except as otherwise expressly provided in these Bylaws, at all meetings of the Board, a majority of the Directors constitutes a quorum for the transaction of business, and the acts of a majority of the Directors present at a meeting at which a quorum is present are the acts of the Board. At any meeting of the Board when less than a quorum present, the majority of those present may adjourn the meeting to another time. At any such reconvened meeting, any business which might have been transacted at the meeting as originally called may be transacted without further notice if a quorum is present.
2.14. Committees. The Board may by resolution establish such committees as it desires, and may establish the purposes and powers of each such committee created. The resolution establishing the committee must (a) provide for the appointment of its members and a chairman, (b) state the purposes of the committee, and (c) provide for reports, termination and other administrative matters as the Board considers appropriate.
ARTICLE III
OFFICERS
3.1. Designation. The Association's principal officers are a President, a Vice President, a Secretary, and a Treasurer, all elected by the Board. The Board may appoint an Assistant Treasurer, an Assistant Secretary and such other officers as it determines to be necessary. Officers other than the President need not be Directors. Any person may hold more than one office.
3.2. Election of Officers. The Board shall annually elect the Association's officers at the new Board's organization meeting. Each officer shall hold his office at the pleasure of the Board, until he resigns or is removed, is otherwise disqualified to serve or a successor is elected and qualified to serve.
3.3. Removal of Officers. On an affirmative vote of a majority of the entire Board, any officer may be removed, either with or without cause, and a successor elected at any meeting of the Board. Any officer may resign at any time by giving written notice to the Board or to the President or Secretary. Any such resignation is effective on the date of receipt of such notice or at any later time specified therein. Unless specified in the notice, acceptance of the resignation by the Board is not necessary to make it effective.
3.4. Compensation. No officer may receive any compensation for services performed in the conduct of the Association's business unless such compensation is approved by the vote or SDH\30447.0001\361335.2 6/7fl.007 -8-
written consent of Owners representing at least a majority of the Association's voting power; however (a) nothing in these Bylaws precludes any officer from serving the Association in some other capacity and receiving compensation therefor, and (b) any officer may be reimbursed for actual expenses incurred in the performance of Association duties. Appointment of any officer does not create contractual rights of compensation for services performed by such officer. No officer, employee or director of Declarant or any affiliate of Declarant may receive any compensation for service as an officer of the Association.·
3.5. President. The President is the chief executive officer of the Association and shall (a) preside at all Association and Board meetings, (b) have the general powers and duties which are usually vested in the office of the President of a corporation, including but not limited to the power to appoint committees ·from among the Owners as the President decides is appropriate to assist in the conduct of the Association's affairs, and (c) subject to the control of the Board, have general supervision, direction and control of the Association's business. The President is ex officio a member of all standing committees and has such other powers and duties as may be prescribed by the Board or these Bylaws.
3.6. Vice President. The Vice President shall take the President's place and perform the President's duties whenever the President is absent, disabled, fails or refuses to act. If neither the President nor the Vice President is available to perform the President's duties, the Board shall appoint another member of the Board to do so on an interim basis. The Vice President has such other powers and duties as may be prescribed by the Board or these Bylaws.
3.7. Secretary. The Secretary shall (a) keep the Minutes of all meetings of the Board and of the Association at the Association's principal office or at such other place as the Board may order, (b) keep the Association's seal in safe custody, (c) have charge of such books and papers as the Board may direct, ( d) in general, perform the duties incident to the office of Secretary, (e) give, or cause to be given, notices of meetings of the Owners and of the Board required by these Bylaws or by law to be given, (f) keep a record book of Owners, listing the names, mailing addresses and telephone numbers of Owners, as furnished to the Association ("Membership Register"), and (g) record in the Membership Register the termination or transfer of ownership by any Owner, together with the date of the transfer. The Secretary has such other powers and duties as may be prescribed by the Board or these Bylaws.
3.8. Treasurer. The Treasurer is the Association's chief financial officer and is responsible for Association funds. The Treasurer shall (a) keep, or cause to be kept, full and accurate accounts and tax and business records of the Association, including accounts of all assets, liabilities, receipts and disbursements, (b) be responsible for the deposit of all funds in the name of the Association in such depositories as the Board designates, (c) disburse the Association's funds as ordered by the Board, and ( d) render to the President and Directors, on request, an account of all transactions as Treasurer and of the Association's financial condition.
The Treasurer has such other powers and duties as may be prescribed by the Board or these Bylaws.
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ARTICLE IV
OWNERS
4.1. Voting Rights. The Association has three (3) classes of voting Membership, as described in the Declaration.
4.2. Majority of Quorum. Unless otherwise provided in the Restrictions, any action which may be taken by the Association may be taken by a majority of a quorum of the Owners.
4.3. Quorum. Except as otherwise provided in these Bylaws, the presence in person, by proxy or by ballot pursuant to California Civil Code Section 1363 .03(b) of at least twenty-five percent (25%) of the Association's voting power constitutes a quorum of the Membership.
Owners present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, despite the withdrawal of enough Owners to leave less than a quorum, if any action taken ( other than adjournment) is approved by at least a majority of a quorum. If a meeting is actually attended, in person, by proxy or by ballot pursuant to California Civil Code Section 1363.03(b), by Owners having less than one-third (1/3) of the Association's voting power, then no matter may be voted on except matters which were generally described in the notice of the meeting. No action by the Owners on any matter is effective if the votes cast in favor are fewer than the minimum number of votes required by the Restrictions to approve the action.
4.4. Proxies. Except as provided below, votes may be cast in person, by proxy or by written ballot pursuant to California Civil Code Section 1363.03. Proxies must be in writing and filed with the Secretary in advance of each meeting. Every proxy is revocable and automatically ceases after completion of the meeting for which the proxy was filed. Any form of proxy or written ballot distributed by any Person to the Owners must afford the opportunity to specify a choice between approval and disapproval of each matter or group of matters to be acted on, except it is not mandatory that a candidate for election to the Board be named in the proxy or written ballot. The proxy or written ballot must provide that, when the Owner specifies a choice, the vote shall be cast in accordance with that choice. The proxy must also identify the person authorized to exercise the proxy and the length of time it will be valid. No proxy is valid with respect to a vote on any matter described in Section 7613(g) of the California Corporations Code unless the general nature of the proposal was described in the proxy. Proxies may not be used in connection with voting in any election regarding those subjects specified in California Civil Code Section 1363.03(b).
4.5. Place of Meetings of Owners. Meetings of the Owners shall be held on the Properties, or such other suitable place as proximate thereto as practical and convenient to the Owners, as designated by the Board.
4.6. Annual Meetings of Owners. The first annual meeting of Owners shall be held within six (6) months after the Close of Escrow for the sale of the first Lot or Condominium in the Properties. Thereafter, the annual meetings shall be held on or about the anniversary date of the first annual meeting. Each first Mortgagee may designate a representative to attend all annual meetings.
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4.7. Special Meetings of Owners. The Board shall call a special meeting of the Owners (a) as directed by resolution of a majority of a quorum of the Board, (b) by request of the President of the Association, or ( c) on receipt of a petition signed by Owners representing at least five percent (5%) of the Association's total voting power. The Secretary shall give notice of any special meeting within twenty (20) days after adoption of such resolution or receipt of such request or petition. The notice must state the date, time and place of the special meeting and the general nature of the business to be transacted. The special meeting must be held not less than thirty-five (35) nor more than ninety (90) days after adoption of such resolution or receipt of such request or petition. No business may be transacted at a special meeting except as stated in the notice. Each first Mortgagee may designate a representative to attend all special meetings.
4.8. Notice. The Secretary shall send to each Owner of record, and to each first Mortgagee who has filed a written request for notice with the Secretary, a notice of each annual or special meeting. The notice must be sent by first-class mail, at least ten (10) but not more than thirty (30) days before the meeting. The notice must state the purpose for the meeting as well as the day, hour and place where it is to be held. The notice may establish time limits for speakers and nominating procedures for the meeting. The notice must specify those matters the Board intends to present for action by the Owners, but, except as otherwise provided by law, any proper matter may be presented for action at the meeting. The notice of any meeting at which Directors are to be elected must include the names of all nominees when the notice is given to the Owners. The mailing of a notice, postage prepaid, in the manner provided in this Section, shall be considered notice served, forty-eight ( 48) hours after the notice has been deposited in a regular depository of the United States mail. Such notice must be posted in a conspicuous place on the Association Property and is deemed served on an Owner on posting if no address for such Owner has been then furnished to the Secretary.
Notwithstanding any other provision of these Bylaws, approval by the Owners of any of the following proposals, other than by unanimous approval of those Owners entitled to vote, is not valid unless the general nature of the proposal was stated in the notice or in any written waiver of the notice: (a) removing a Director without cause; (b) filling vacancies on the Board; ( c) approving a contract or transaction between the Association and one or more Directors, or between the Association and any entity in which a Director has a material financial interest; (d) amendment of the Articles; or (e) electing to wind up and dissolve the Association.
4.9. Record Dates. The Board may fix a date in the future as a record date for determining which Owners are entitled to notice of any meeting of Owners. The record date so fixed must be not less than ten ( 10) nor more than sixty ( 60) days before the date of the meeting.
If the Board does not fix a record date for notice to Owners, the record date for notice is the close of business on the business day preceding the day on which notice is given. In addition, the Board may fix a date in the future as a record date for determining the Owners entitled to vote at any meeting of Owners. The record date so fixed must be not less than ten ( 10) nor more than sixty (60) days before the date of the meeting. If the Board does not fix a record date for determining Owners entitled to vote, Owners on the day of the meeting who are otherwise eligible to vote are entitled to vote at the meeting.
4.10. Adjourned Meetings. If a quorum is not present at the time and place established for a meeting, a majority of the Owners who are present, either in person, by proxy or SDH\30447.0001\361335.2 6/7(1.007 -11-
by ballot pursuant to California Civil Code Section 1363.03(b), may adjourn the meeting to a time not less than five (5) nor more than thirty (30) days from the original meeting date, at which meeting the quorum requirement is the presence in person, by proxy or by ballot pursuant to California Civil Code Section 1363.03(b) of Owners holding at least twenty-five percent (25%) of the Association's voting power. Such an adjourned meeting may be held without the notice required by these Bylaws if notice thereof is given by announcement at the meeting at which such adjournment is taken.
4.11. Order of Business. Meetings of Owners must be conducted in accordance with a recognized system of parliamentary procedure or such parliamentary procedures as the Association may adopt. The order of business at all meetings of the Owners is as follows: (a) roll call to determine the voting power represented at the meeting; (b) proof of notice of meeting or waiver of notice; ( c) reading of minutes of preceding meeting; ( d) reports of officers; ( e) reports of committees; (t) election of Directors (at annual meetings or special meetings held for such purpose); (g) unfinished business; and (h) new business.
4.12. Action Without Meeting. Except for election of Directors, any action not subject to California Civil Code Section l 363.03(b) which may be taken at a meeting of the Owners may be taken without a meeting by written ballot of the Owners. Ballots must be solicited in the same manner as provided in these Bylaws for giving of notice of meetings to Owners. Such solicitations must specify (a) the number of responses needed to meet the quorum requirements, (b) the percentage of approvals necessary to approve the action, and ( c) the time by which ballots must be received to be counted. The form of written ballot must afford an opportunity to specify a choice between approval and disapproval of each matter and must provide that, where the Owner specifies a choice, the vote shall be cast in accordance therewith.
Receipt within the time period specified in the solicitation of (i) ballots which equal or exceed the quorum which would be required if the action were taken at a meeting, and (ii) approvals which equal or exceed the number of votes which would be required for approval if the action were taken at a meeting at which the total number of votes cast was the same as the total number of ballots cast, constitutes approval by written ballot.
4.13. Consent of Absentees. The actions taken at any meeting of Owners, however called and noticed, are valid as though taken at a meeting duly held after regular call and notice, . if (a) a quorum is present either in person, by proxy or by ballot pursuant to California Civil Code Section 1363.03(b), and (b) either before or after the meeting, each of the Owners not present in person, by proxy or by ballot pursuant to California Civil Code Section 1363.03(b) signs (i) a written waiver of notice, (ii) a consent to the holding of such meeting, or (iii) an approval of the minutes thereof. The Secretary shall file all such waivers, consents or approvals with the corporate records or make them a part of the minutes of the meeting.
4.14. Minutes, Presumption of Notice. Minutes or a similar record of the proceedings of meetings of Owners, when signed by the President or Secretary, shall be presumed truthfully to evidence the matters described therein. A recitation in the Minutes executed by the Secretary that proper notice of the meeting was given constitutes prima facie evidence that such notice was gtven.
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4.15. Inspector of Election. Prior to any meeting of Owners, the Board shall appoint an inspector of election for that meeting in accordance with California Civil Code Section l 363.03(c). There shall be at least one (1) inspector of election. Any report or certificate of the inspector of election is prima facie evidence of the matters stated therein. An inspector of election does not have to be an Owner. If the Board does not appoint an inspector of election or if an inspector fails to appear at a meeting, the chairman of the meeting of Owners may appoint the inspector of election. If the chairman fails to appoint the inspector of election, then any Owner may request that the inspector of election be appointed. If an Owner makes such a request, then the inspector of election shall be elected by Owners representing a majority of the Owners present. In case of an action to be taken by the Owners by written ballot, the Board shall also appoint an inspector of election to count the ballots in accordance with Section 1363.03 of the California Civil Code. The results of the election shall be promptly reported to the Board, recorded in the minutes of the next meeting of the Board and made available for review by Owners. Within fifteen (15) days, the Board shall publicize the results of the election in a communication directed to all Owners.
The inspector of election shall (a) determine the number of Memberships outstanding and the voting power of each, (b) the number of Owners represented at the meeting and the existence of a quorum, (c) the authenticity, validity and effect of proxies, (d) receive votes, ballots or consents, (e) hear and ·determine all challenges and questions in any way arising in connection with the right to vote, (f) count and tabulate all votes or consents, (g) determine when the polls shall close, (h) determine the results of the election, and (i) do such acts as may be proper to conduct the election or vote, with fairness to all Owners in accordance with Section 1363.03(c) of the California Civil Code. The inspector of election shall perform his/her duties impartially, in good faith, to the best of his/her ability and as expeditiously as is practical.
ARTICLE V
AMENDMENTS
These Bylaws may be amended by the vote or written consent of Owners representing at least (a) a majonty of the voting power of each class of the Owners, and (b) a majority of the Association's voting power represented by Owners other than Declarant; provided that the specified percentage of each class of Owners necessary to amend a specific provision of these Bylaws may not be less than the percentage of affirmative votes prescribed for action to be taken under that provision. These Bylaws may be amended by a majority of the entire Board, (i) at any time before the Close of Escrow for the sale of the first Lot or Condominium, or (ii) if the amendment is within the Board's power to adopt without Owner approval pursuant to the California Corporations Code and either (a) the proposed amendment conforms the Bylaws to California law or (b) the proposed amendment corrects a typographical error in the Bylaws.
ARTICLE VI
MISCELLANEOUS
6.1. Checks, Drafts and Documents. All checks, drafts, orders for payment of money, notes and other evidences of indebtedness issued in the name of or payable to the Association must be signed or endorsed in the manner and by the person or per.sons the Board designates by resolution.
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6.2. Conflicts. If any of these Bylaws conflict with any laws of the State of California, such conflicting Bylaws shall be void on final court detennination to such effect, but all other Bylaws shall remain in full force. In case of any conflict between the Articles of Incorporation and these Bylaws, the Articles of Incorporation shall control. In case of any conflict between the Declaration and these Bylaws, the Declaration shall control.
6.3. Execution of Documents. The Board may authorize any officer or officers, agent or agents to enter into any contract or execute any instrument in the name and on behalf of the Association. Such authority may be general or confined to specific instances. Unless so authorized by the Board, no officer, agent, committee member or employee may bind the Association by any contract or pledge its credit or render it liable for any purpose in any amount.
6.4. Availability of Association Documents.
6.4.1 Records To Be Maintained. The Association shall keep at its principal office (or at such other place in or near the Properties as the Board may prescribe) (a) the Restrictions and (b) any documents or items (i) defined under Section 1365.2 of the California Civil Code as "association records" and "enhanced association records" or (ii) required to be kept pursuant to any other applicable provision of the California Civil Code and the California Corporations Code (collectively, the "Association Documents'), each of which shall be made available for inspection and copying by any Owner or the Owner's duly appointed representative for a purpose reasonably related to the Owner's interest as an Owner, all in accordance with applicable provisions of the California Civil Code and California Corporations Code.
6.4.2 Limits on Availability. The Board may establish reasonable rules regarding (a) notice to be given to the custodian.of the Association Documents by the Owner desiring to make the inspection, (b) hours and days of the week when such an inspection may be made, and (c) payment of the cost of copying any of the Association Documents requested by an Owner; provided that every Director may at any reasonable time inspect all Association Documents and the physical properties owned or controlled by the Association, and make extracts and copies of documents.
6.4.3 Time of Availability. The minutes, minutes that are proposed for adoption that are marked to indicate draft status, or a summary of the minutes, of any meeting of the Board (other than an executive session) must be available to Owners within thirty (30) days of the meeting. The minutes, proposed minutes or summary minutes must be distributed to any Owner on request and on reimbursement of the Association's cost in making that distribution.
6.4.4 Distribution to Owners. No later than ten (10) days after the Association receives written request from any Owner, the Association shall provide to that Owner a copy of each of the documents listed in California Civil Code Section 1368(a) that have been requested by the Owner. Owners must be notified in writing when the budget required in Section 2.10.1 is distributed or at the time of any general mailing to the entire Association Membership of their right to have copies of the minutes of meetings of the Board and how and where those minutes may be obtained.
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6.5. Fiscal Year. The Board shall select the Association's Fiscal Year. The Fiscal Year is subject to change as the Board determines.
ARTICLE VII
NOTICE AND HEARING PROCEDURE
7 .1. Initial Complaint. Persons who believe a violation of the Restrictions has occurred may file a complaint with a Person designated by the Board on a form approved by the Board. The Board will commence the enforcement process. In its discretion, the Board may issue one or two violation letters to the Person alleged to have committed the violation ("respondent") or set a hearing described in Section 7.2 below. The Board may direct the Manager to assist the Board in any of the steps the Board chooses to talce in enforcing the Restrictions except that decisions made at hearings must be made by the Board. 7 .2. Scheduling Hearings. A hearing before the Board to determine whether a sanction should be imposed may be initiated by the Board after receipt of at least one complaint.
To initiate a hearing, the Board must deliver to the respondent a notice which includes the following: •
7.2. l Complaint. A written statement setting forth in ordinary and concise language the acts or omissions with which the respondent is charged,
7.2.2 Basis for Violation. A reference to the specific provisions of the Restrictions which the respondent is alleged to have violated,
7.2.3 Hearing Schedule. The date, time and place of the scheduled hearing, 7 .2.4 Sanctions. A list of sanctions which may be imposed at the hearing.
The date for the hearing may be no less than fifteen (15) days after the date the notice of hearing is mailed or delivered to the respondent. The respondent is entitled to attend the hearing, submit a statement of defense to the Board in advance of the hearing, or present a statement of defense and supporting witnesses at the hearing. If the respondent does not attend the hearing, the respondent waives these rights.
7 .3. Conduct of Hearing. The Board shall conduct the hearing in executive session, affording the respondent a reasonable opportunity to be heard. Prior to· the effectiveness of any sanction hereunder, proof of notice and the invitation to be heard must be placed in the minutes of the meeting. Such proof is adequate if a copy of the notice together with a statement of the date and manner of delivery is entered by the Association officer or Board member who mailed or delivered such notice. The record of the meeting must contain a written statement of the results of the hearing and the sanction, if any, imposed. 7 .4. Imposition of Sanctions. After affording the respondent an opportunity for a hearing before the Board, the Board may impose any one or more of the following sanctions: (a) levy a Special Assessment as authorized in the Declaration; (b) suspend the respondent's voting privileges established under the Declaration; (c) enter upon a Lot or Condominium to perform maintenance which, according to the Declaration, is the responsibility of the respondent; or ( d) SDH\30447.0001\361335.2 6/7/2007 -15-
record a notice of noncompliance if allowed by law. Any suspension of Membership privileges may not be for a period of more than _thirty (30) days for any noncontinuing infraction, but in the case of a continuing infraction (including nonpayment of any assessment after the same becomes delinquent) may be imposed for so long as the violation continues. Written notice of any sanctions to be imposed must be delivered to the respondent personally via first class mail within fifteen (15) days following the date of the decision to impose the sanction. No action against the respondent arising from the alleged violation may take effect prior to five (5) days after the hearing.
7.5. Limits on Remedies. The Board's failure to enforce the Restrictions does not waive the right to enforce them. The remedies provided by the Restrictions are cumulative and not exclusive. However, any individual Owner must exhaust all available internal Association remedies prescribed by the Restrictions before that Owner may resort to a court of law for relief with respect to any alleged violation of the Restrictions by another Owner.
SDH\30447.0001\361335.2 6n/2007 -16-
CERTIFICATE OF SECRETARY
I, the undersigned, certify that:
1. I am the duly elected and acting Secretary of WATERMAN BUSINESS CENTER ASSOCIATION, a California nonprofit corporation ("Association"); and
2. The foregoing Bylaws comprising 17 pages including this page constitute the Bylaws of the Association duly adopted by Consent of Directors in Lieu of First Meeting dated J:1.A.MC-: \ 2- , 2007.
IN WITNESS WHEREOF, I have hereunto subscribed my hand and affixed the seal of the Association this \'2..-tl- day of UJ..lMee- , 2007 . •
(SEAL)
SDH\30447.0001\361335.2 6/7/2007 -17-
Recorded In Official Records, County of San Bernardi no RECORDING REQUESTED BY: ~- _ LARRY WALKER ~S,.~'§ Auditor/Controller - Recorder 6/27/2007
8:00 AM
MD
LandAmerica Commercial Services
9 803 LandAmerica Commonwealth
Doc#: 2007 - 0380258 Titles: 1 Pages: 23
WHEN RECORDED, MAIL TO:
DZIDA, CAREY & STEINMAN (SDH)
3 Park Plaza, Suite 750
Irvine, CA 92614
II I I I I I I II I I I I I
Fees
Taxes
Other
PAIO
74.00 0.00
0.00 $74.00
(Space Above For Recorder's Use)
SUPPLEMENTAL DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND RESERVATION
OF EASEMENTS FOR
WATERMAN BUSINESS CENTER
(LOTS 1 AND 2)
SDH\30447.0001\36273l.4 6/7/2007
THIS SUPPLEMENTAL DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATION OF EASEMENTS ("Declaration') is made by WA TERMAN BP, LLC, a California limited liability company ("Declarant').
A. Declarant is the owner of certain real property in the City of San Bernardino, County of San Bernardino, State of California, more particularly described as ("Condominium Properties') follows:
The "Units," "Association Property," and "Common Area" as defiped in 2) and shown on the Condominium Plan lof-1., f ~ d/'"!nl~-r 17/~ /~ tJ f' recorded on ~ne.pl 7, 2007, as Instrument No -.:Joo7, ~?tJ";{f Official Records of San Bernardino County, California. Such Condominium Plan covers Lots I and 2 of Tract No. 18083, as shown on a subdivision map on file in Book 3 2-'I Pages 2'1 to 32., inclusive, of Maps, in the Office of the San Bernardino County Recorder. -B. Concurrently herewith, Declarant is recording in the Official Records of San Bernardino County, California, that certain Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Waterman Business Center ("Declaration'). The Declaration, which is incorporated herein by this reference, covers the Condominium Properties and other real property more particularly described therein. This Supplemental Declaration establishes covenants, conditions, restrictions and easements applicable to the Condominium Properties which are in addition to those established under the Declaration.
C. Declarant declares all of the Condominium Properties shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the easements, restrictions, covenants, conditions and equitable servitudes contained in this .
Supplemental Declaration, all of which are for the purpose of preserving and protecting the value, attractiveness and desirability of the Condominium Properties, in furtherance of a comprehensive plan for the protection, maintenance, subdivision, improvement use and sale of the Condominium Properties, or any portion thereof. The covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and charges set forth herein shall (I) run with the Condominium Properties; (2) be binding upon all persons having any right, title or interest in the Condominium Properties, or any part thereof, their heirs, successive owners and assigns; (3) inure to the benefit of every portion of the Condominium Properties and any interest therein; (4) inure to the benefit of and be binding upon Declarant and their successive owners and each Condominium Owner within the Condominium Properties and his or her respective successors in-interest; and (5) may be enforced by Declarant, any Condominium Owner or the Association.
1. Defined Terms. Capitalized terms used but not defined in this Supplemental Declaration shall have the meanings assigned to such terms in the Declaration. The following words and phrases when used in this Supplemental Declaration shall have the meanings hereinafter specified.
1 ·.1 Building Structure and Systems. Building Structure and Systems means the structural portions of the buildings in which the Condominiums are located and/or the SDH\30447.0001\362731.4 6/7/2007 -1-
mechanical, electrical, life safety and plumbing systems and components but excluding the HV AC systems serving individual Condominium Units.
- 1.2 City Easement Deed. City Easement Deed means the Easement Deed and Agreement between Declarant and the City of San Bernardino recorded in the Official Records of San Bernardino County, California, on Oet: ~ , 2006, as Instrument No.
2.00'1·0"8h03S . Declarant's obligations under the City Easement Deed have been or will be assigned to the Association.
1.3 Common Wall. Common Wall means any wall separating one Condominium Unit from an adjacent Condominium Unit. The cost incurred by the Association in repairing any Common Wall shall, subject to Sections 5.3 and 6.1 of the Declaration, be borne equally by the Condominium Owners of the Condominium Units separated by such Common Wall.
1.4 Condominium Association Property. Condominium Association Property means the property and Improvements described in Exhibit "l" attached hereto.
1.5 Condominium Owner. Condominium Owner means the Owner of a Condominium Unit within the Condominium Properties.
1.6 Design Committee. Design Committee means the committee established pursuant to Section IO below.
I . 7 Design Committee Rules. Design Committee Rules means the Design Committee design standards, procedures, rules and guidelines which may be adopted by the Board, as amended from time to time.
2. Designation of Additional Association Property. The Condominium Association Property is hereby designated as "Association Property" under the Declaration, subject to the covenants, conditions, restrictions, easements and other terms set forth in this Supplemental Declaration.
3. Condominium Owners Rights of Enjoyment. Every Condominium Owner and, to the extent permitted by such Condominium Owner pursuant to the Restrictions, its Owner Representative(s), shall have a right of ingress and egress and of enjoyment in, to and over the Condominium Association Property which shall be appurtenant to and shall pass with title to every Condominium Unit, subject to the Association's right to exercise exclusive jurisdiction over and control of the Condominium Association Property. Owners of Lots 3 through 12 of Tract No. 18083 shall not have the right to use the Condominium Association Property.
4. Condominium Owner Easements over Loading and Parking Areas Adjacent t9 Condominium Buildings. Exhibit "2" hereto generally depicts the "Loading and Parking Area" adjacent to the buildings containing the Condominium Units. Declarant hereby reserves to itself, and every Condominium Owner and their respective Owner Representatives and successors the exclusive right to use that portion of the Loading and Parking Area adjacent to such Condominium Owner's Condominium Unit for loading purposes and parking purposes, subject to such Condominium Owner's compliance with all applicable requirements of the City SDH\30447.0001\362731.4 6nl2007 -2-
and the Restrictions. No Condominium Owner shall interfere with the reasonable use of or access to the portion of the Loading and Parking Area adjacent to any other Condominium Owner's Condominium Unit.
5. Easement for HV AC Units of Condominium Units. Declarant hereby reserves, for the benefit of each Condominium Owner, an easement for the maintenance, repair, replacement and operation over those portions of the Condominium Association Property on which Declarant has installed heating, ventilation and air conditioning systems serving each Condominium Unit. This easement is appurtenant to and passes with title to each Condominium Unit. This easement is subject to the restrictions, rights and other easements in the Restrictions.
6. Use Restrictions.
6.1 Prohibited Uses. No part of the Condominium Properties shall be used or caused to be allowed or authorized in any way for any purpose not authorized for the Condominium Properties by the zoning ordinances, special use permit(s), planned industrial permit(s) and other governmental regulations applicable to the Condominium Properties. No portion of the Condominium Properties shall be used for any permanent or temporary residential purposes. No part of the Condominium Properties shall be used for the display, manufacture, production, duplication, distribution or sale of what is commonly referred to as "pornographic," "obscene," and/or "adult" material. No rubbish or debris of any kind may be placed or permitted to accumulate anywhere within the Condominium Properties, and no odor may be permitted to arise therefrom so as to render the Condominium Properties or any portion thereof unsanitary, unsightly, or offensive from any public or private street or from any Condominium Unit in the vicinity thereof or to its occupants. No noise, odor, vibration or other nuisance shall be permitted to exist upon or emanate from any portion of the Association Property or any Condominium Unit within the Condominium Properties so as to be offensive or detrimental to any other Condominium Unit in the Condominium Properties or to any Condominium Owner or its Owner Representative. The Board is entitled to determine if any noise, odor, or activity producing such noise or odor constitutes a nuisance. Each Condominium Owner shall comply with all requirements of the local or state health authorities and with all other applicable governmental ordinances regarding occupancy and use of a Condominium Unit. Each Condominium Owner is accountable to the Association and other Owners for the conduct and behavior of Owner Representatives. Any damage to the Association Property, personal property of the Association, or property of another Owner caused by such Persons, shall be repaired at the sole expense of the Condominium Owner of the Condominium Unit where such Persons are working or visiting.
6.2 No Outside Storage. No outside portions of the Condominium Association Property (including Loading and Parking Area) shall be used for the storage of goods or materials.
7. Maintenance of Condominium Units.
7.1 Owner Maintenance. Each Condominium Owner shall maintain, at its sole expense, such Condominium Owner's Condominium Unit, including all windows (including glass, frame, weather stripping, panes and sheathing), doors (including hardware, weather- SDH\3044 7.000I\362731.4 6n/2007 -3-
proofing, sheathing, frame and any glass), light fixtures actuated from switches controlled from, or separately metered to, such Condominium Unit, and the interior surfaces of the walls, ceilings, floors and fixtures, in a clean, sanitary and attractive condition, in accordance with the Condominium Plan and the original construction design of the Improvements in the Condominium Properties and Restrictions. However, no utility systems, Common Wall or other portions of the Building Structure and Systems may be pierced or otherwise altered or repaired without approval from the Design Review Committee. Each Condominium Owner shall, at its sole expense, keep the portion of the Loading and Parking Area adjacent to such Condominium Owner's Unit in good condition and repair, clean and free from debris. However, the Association (as provided in Section 8.1 below) shall be responsible for the resurfacing of paved portions of the Loading and Parking Area unless such resurfacing is required due to the negligence, willful misconduct or excessive use of such paved portion of the Loading and Parking Area by such Condominium Owner or its Owner Representatives. 7 .2 Association Right to Maintain. If an Condominium Owner fails to perform any maintenance, repair or installation required by this Article, the Association or its delegates may, but shall not be obligated to, cause such maintenance, repair and installation to be accomplished in accordance with the following: (a) upon finding by the Board of a deficiency in such maintenance, repair or installation, the Board shall give notice of such deficiency to the Condominium Owner (however in the case of immediate risk of injury to persons or serious damage to property no such notice shall be required); (b) the Condominium Owner shall have no more than thirty (30) days ( "Period") following the receipt thereby of written notice of such election from the Board or such committee to select a day or days upon which such maintenance, repair or installation work shall be accomplished; ( c) the date which said Condominium Owner selects to cure the deficiency shall be no more than thirty (30) days from the end of the Period, or a reasonable time thereafter if such deficiency cannot be readily cured within such time; ( d) unless the Condominium Owner and the Board otherwise agree, such maintenance or installation to cure the deficiency shall take place only during daylight hours on any day, Monday through Friday, excluding holidays; and (e) if the Association pays for all or any portion of such maintenance or installation, such amount shall be a Special Assessment against the affected Condominium Owner and its Condominium Unit. The Association shall also have the right to require that the Condominium Owner cure any deficiencies in maintenance of such Condominium Owner's Condominium Unit and/or the Improvements located thereon.
8. Additional Maintenance Funds; Assessments.
8.1 Condominium Association Property Operating Fund. The Board shall Budget, establish and maintain a Condominium Association Property Operating Fund for current expenses of the Condominium Association Property. Disbursements from the Condominium Association Property Operating Fund shall be made solely for the purpose of funding the current operating Common Expenses of the Condominium Association Property. Unless otherwise approved by a majority of the voting power of the Condominium Owners, any excess funds remaining in the Condominium Association Property Operating Fund, over and above the amounts used for the operation of the Condominium Association Property, shall be used to reduce the following year's "Condominium Assessment Component" (defined below).
SDH\30447.0001\362731.4 6/7/2007 -4-
8.2 Condominium Assessment Component. Common Assessments levied against the Condominium Owners and their respective Condominium Units shall be comprised of (a) that portion of the Common Expenses of the Association comprising Condominium Association Property Operating Funds and other Maintenance Funds (if any) Budgeted to the Condominium Association Property ("Condominium Assessment Component'); and (b) the Common Assessments established under the Declaration. The Condominium Assessment Component shall be allocated solely among the Condominium Owners based on the percentage share of Condominium Common Expenses set forth in Exhibit "3" hereto.
8.3 Capital Improvement Assessments. A Capital Improvement Assessment with respect to Condominium Association Property Improvements shall require a majority of votes at a meeting or written ballot of the Condominium Owners at which more than fifty percent (50%) of the total voting power attributable to Condominium Units is represented.
Notwithstanding the foregoing, the Board may levy in any fiscal year a Capital Improvement Assessment applicable to that fiscal year without the vote of the Members if such Capital Improvement Assessment is necessary for addressing a Capital Improvement necessary to address an imminent threat to property or the safety of persons within the Condominium Properties.
8.4 Reconstruction Assessment. A Reconstruction Assessment for the Condominium Association Property shall be assessed only against the Condominium Owners (in the same proportion as the Condominium Assessment Component).
9. Additional Association Powers and Duties.
9.1 Commonly Metered Utilities. The Association shall have the power and duty to (a) obtain commonly metered utility services necessary for the Condominium Units (as part of the obligations pertaining to the Condominium Association Property), and (b) maintain the sewer and water lines (including laterals) within the Condominium Properties for the benefit of the Condominium Owners (as part of the obligations pertaining to the Condominium Association Property). If at any time the Association determines that any Condominium Owner and/or its Owner Representatives is using a disproportionate amount of any commonly metered utilities, then the Association may levy a Special Assessment against such Condominium Owner and its Condominium in an amount equal to the increased costs incurred by the Association for the disproportionate use. If the Association determines that any repair or maintenance of a sewer and/or water line (including a lateral) was required as a result the acts of a Condominium Owner or its Condominium Owner Representatives, then the Association may levy a Special Assessment against such Condominium Owner and its Condominium in an amount equal to the costs incurred by the Association for the applicable repair or maintenance.
9.2 Rights of Entry and Enforcement. The power, but not the duty, after Notice and Hearing, to enter any Condominium Unit (forty-eight (48) hours after delivery of advance written notice to the Condominium Owner of the Condominium Unit of such entry including the reasons therefore, with the exception of circumstances involving immediate risk of injury to persons or serious damage to property in which case the right of entry shall be immediate) or Association Property without being liable to any Condominium Owner for the purpose of enforcing by peaceful means the Restrictions or for the purpose of maintaining or SDH\30447.0001\36273l.4 6/7/2007 -5-
repairing the Association Property and/or performing maintenance of any Condominium Unit or the Improvements located thereon where the Condominium Owner fails to do so; provided that no items of construction on any such Condominium Unit or Condominium Association Property may be altered or demolished except pursuant to judicial proceedings. The cost of any enforcement action or any maintenance and repair completed in compliance with these provisions is the responsibility of the Condominium Owner and may be assessed against the responsible Condominium Owner as a Special Assessment. The responsible Condominium Owner shall pay promptly all amounts due for such work, and the costs and expenses of collection. The Association may also commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of the Restrictions by the Condominium Owner of any Condominium Unit and its Owner Representatives and to enforce, by mandatory injunctions or otherwise, all of the provisions of the Restrictions. If an action is brought by the Association, the prevailing party is entitled to recover reasonable attorneys' fees. 9 .3 Condominium Association Traffic and Parking Rules and Regulations. The Board is empowered to establish restricted "visitor parking," temporary and/or "no parking," areas within parking improvem_ents located on the Condominium Association Property in accordance with Section 22658 and Section 22658.2 of the California Vehicle Code, or any similar statute hereafter enacted, as well as to enforce these parking limitations. The Board is also empowered to establish one-way traffic limitations for all or any portion of the drive aisles within the Condominium Association Property. 9 .4 Fire Alarm Monitoring; Service Contracts. The Association shall have the power and duty to contract for fire alarm monitoring services and equipment for the Condominium Association Property and the power to enter into such other services contracts as are necessary or appropriate for services provided to the Condominium Association Property.
10. Design Review. No Construction Activity (defined below) may be commenced or maintained within the Condominium Properties until the plans and specifications therefor showing the nature, design, kind, shape, height, width, color, materials, location and other aspects of the same have been submitted to the Design Committee and approved in writing by the Design Committee in accordance with Section 4.6 of the Declaration and the additional criteria and conditions set forth in this Section 10. The term "Construction Activity(ies)" shall mean any alteration, addition, installation, modification, construction, or reconstruction of any Improvement that would in any way affect the Building Structure and Systems; the exterior of the Condominium Unit and/or any Common Wall between Condominium Units whether or not any of the same are externally visible.
10.1 Membership; Appointment. The Design Committee shall consist of three (3) members. Members of the Design Committee may be removed at any time without cause by the Person appointing such member as provided herein. Unless changed by resolution of the Board, the address of the Design Committee for all purposes, including the submission of plans for approval, is the principal office of the Association as designated by the Board pursuant to the Bylaws. Dec.larant may appoint and remove a majority of the members of the Design Committee, which appointees need not be Members of the Association, until the date on which Declarant no longer owns a Lot or Condominium Unit. The Board may appoint and remove those members of the Design Committee which Declarant is not authorized to appoint until such S DH\3044 7 .000 I \362731.4 6/712007 -6-
time as Declarant's rights of appointment shall have expired, and thereafter the Board may appoint and remove all members of the Design Committee. Design Committee members appointed by the Board must be Condominium Owners (or agents of Condominium Owners) at all times during their service on the Design Committee, and shall serve for a term of one (I) year or until their respective successors are appointed.
10.2 Design Committee Rules. The Board may adopt, supplement and amend Design Committee Rules imposing design and materials standards, submittal procedures, review criteria and other factors to be considered and followed by the Design Committee and the Condominium Owners in connection with Construction Activities.
I 0.3 Exemptions/Declarant Approval. Notwithstanding any other provision of the Restrictions, Declarant, need not seek Design Committee approval with respect to its construction or development activities of any kind, including without limitation any activity which would be classified as a "Construction Activity." I 0.4 Application. The Person submitting plans and specifications to the Design Committee ("Applicant'') must obtain a dated, written receipt for such plans and specifications and furnish the Design Committee with the address to which further communications from the Design Committee are to be directed. The Design Committee Rules may set forth application fees and deposits and procedures for the submission of plans for approval, require a fee to accompany each application for approval (or request for a certificate stating that Design Committee approval is not required), or establish additional factors which the Design Committee will take into consideration in reviewing submissions. The Design • Committee Rules may provide that the amount of any fee and/or deposit may be determined in any reasonable manner, such as based upon the cost of the construction, alterations or installations contemplated and/or the reasonable cost of architectural or other professional fees incurred by the Association in reviewing plans.
10.5 Criteria. The Design Committee shall consider and act upon all plans and specifications submitted for its approval under this Declaration and may perform such other duties as are specified in this Declaration, including the inspection of construction in progress to assure its conformance with the plans approved by the Design Committee. The Design Committee may approve plans and specifications submitted for its approval only if it determines that (i) the Construction Activity is in conformance with the Design Committee Rules, (ii) the Construction Activity in the locations indicated will not be detrimental to the appearance or use of other Condominium Units or the Condominium Properties as a whole, (iii) the appearance of any structure affected thereby will be in harmony with the surrounding structures, (iv) the Construction Activity and the product thereof will not detract from the attractiveness of the Association Property or the use thereof by the Members, and (v) the upkeep and maintenance thereof will not become a burden on the Association.
10.6 Conditions. The Design Committee may condition its approval of plans and specifications for any Improvement upon any of the following: (i) such changes therein as it deems appropriate, (ii) the grant of appropriate easements to the Association for the maintenance of the Improvement and access to all Condominium Association Property, (iii) the Applicant's agreement to reimburse the Association for the cost of reviewing the proposed Improvement SDH\30447.0001\362731.4 6/7/2007 -7-
(including legal and consultant costs) and for the cost of maintaining the Improvement, (iv) the Applicant's agreement to complete the proposed work within a stated period of time, and/or (v) the Applicant's furnishing the Association with a bond or other security acceptable to the Design Committee in an amount reasonably sufficient to (a) assure the completion of such Improvement or the availability of funds adequate to remedy any nuisance or unsightly conditions occurring as a result of the partial completion of such Improvement, and (b) to protect the Association and the other Condominium Owners against mechanic's liens or other encumbrances which may be Recorded against their respective interests in the Condominium Properties or damage to the Condominium Association Property as a result of such work. In addition to the foregoing, the Design Committee may require submission of additional plans and specifications or other information prior to approving or disapproving materials submitted.
10. 7 Review Period. The Design Committee may require such detail in plans and specifications submitted for its review as it deems proper. Until the Design Committee receives all required plans and specifications, the Design Committee may postpone review of any plan submitted for approval or determination of exemption. The Design Committee shall transmit its decision and the reasons therefore or a request for further information to the Applicant at the address furnished by the Applicant, within forty-five (45) days after the date of the receipt issued by the Design Committee for materials submitted to the Design Committee and the Design Committee determines that such application is complete. Subject to appeal procedures which may be adopted by the Board, any application or request for certificate of exemption submitted pursuant to this Section shall be deemed approved, unless the Design Committee transmits written disapproval or a request for additional information or materials to the Applicant within forty-five (45) days after the date of receipt by the Design Committee of the Applicant's submitted materials.
10.8 Meetings of the Design Committee. The Design Committee shall meet and/or otherwise confer as necessary to perform its duties hereunder. The vote or written consent (which may be transmitted by facsimile or email) of a majority of the members of the Design Committee constitutes an act of the Design Committee. The Design Committee may engage architects, landscape architects, designers, planners and such similar professionals and consultants and appoint such subcommittees as the Design Committee deems appropriate to assist the Design Committee in the evaluation of plans, specifications and other items submitted for Design Committee approval pursuant to the Declaration. The Applicant shall be responsible for the cost of any such professionals and/or consultants engaged with respect to such Applicant's plans and specifications.
10.9 No Waiver of Future Approvals. Design Committee approval of any proposals or plans and specifications or drawings for-any Construction Activity done or proposed or in connection with any other matter requiring Design Committee approval does not waive any right to withhold approval of any similar proposals, plans and specifications, drawings or matters subsequently or additionally submitted for approval or consent.
10.10 Compensation of Members. The Design Committee members shall receive no compensation for services rendered, other than reimbursement by the Association for expenses incurred by them in performing their duties. The foregoing shall not preclude payment of compensation approved by the Board to architects or similar professionals engaged to assist SDH\30447.0001\36273 l.4 6/7/2007 -8-
the Design Committee or the Design Committee Representative or to perform the function of the Design Committee member pursuant to this Section 10.10.
10.11 Correction of Defects. Inspection of work and correction of defects therein shall proceed as follows:
I 0.11.1 Notice of Completion. The Design Committee or its duly appointed representative may at any time inspect any Improvement or Construction Activity for which approval of plans is required under this Article. The Design Committee's right of inspection of Improvements for which plans have been submitted and approved shall terminate sixty (60) days after the work of Improvement has been completed and the Design Committee has received written notice of such completion. The Design Committee's rights of inspection shall not terminate pursuant to this paragraph if plans for the work of Improvement have not previously been submitted to and approved (or determined exempt) in writing by the Design Committee. If the Design Committee finds that an Improvement was done without obtaining written approval of the plans therefor or was not done in substantial compliance with the plans approved by the Design Committee, it shall notify the Condominium Owner in writing of failure to comply with this Section 4.6, specifying the particulars of noncompliance. The Design Committee may require the Condominium Owner to take such action as may be necessary to remedy a noncompliance. •
I 0.11.2 Noncompliance. If the Condominium Owner fails to remedy the noncompliance within sixty (60) days from the date the Design Committee's notice of noncompliance is deemed received by the Condominium Owner, the Design Committee shall notify the Board in writing of such failure. Upon Notice and Hearing, the Board shall determine whether there is a noncompliance and, if so, the nature thereof and the estimated cost of correcting or removing the same. If a noncompliance exists, the Condominium Owner must remedy or remove the same_within a period of not more than forty-five (45) days from the date that notice of the Board ruling is given to the Condominium Owner. If the Condominium Owner does not comply with the Board ruling within that period, the Board may Record a notice of noncompliance and may commence a lawsuit for damages or injunctive relief, as appropriate, to remedy the noncompliance.
I 0.11.3 Compliance. If the Design Committee fails to notify the Applicant of any noncompliance with previously submitted and approved plans within sixty (60) days after receipt of written notice of completion from the Applicant, the Construction Activity shall be deemed to be in accordance with such approved plans.
10.11.4 Prosecution of Work. The Design Committee approval for any particular Construction Activity expires and the plans and specifications therefor must be resubmitted for Design Committee approval pursuant to this Section 10 if substantial work pursuant to the approved plans and specifications is not commenced within six (6) months after the Design Committee's approval of such Construction Activity. All Construction Activities shall be performed as promptly and diligently as possible and, unless an earlier completion date is specified in the Design Committee approval, must be completed within one (1) year after the date on which the work commenced.
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10.12 Scope of Review. The Design Committee shall review and approve or disapprove all plans submitted to it for any proposed Construct1on Activity solely on the basis of the considerations set forth in this Declaration. The Design Committee is not responsible for reviewing, nor shall its approval of any plan or design be deemed approval of, any plan or design from the standpoint of structural safety or conformance with building codes or other governmental requirements.
10.13 Variances. The Design Committee may recommend variances from compliance with any of the architectural provisions of the Declaration and/or this Supplemental Declaration, including, without limitation, restrictions upon height, size, floor area or placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental considerations may require. Such variances must be approved by the Board, evid_enced in writing, and signed by at least two (2) officers of the Association certifying such Board approval, and are effective upon Recordation. No violation of the Restrictions shall exist with respect to any Construction Activity for which a variance is granted. The granting of such a variance does not waive any of the terms and provisions of this Declaration or of any Supplemental .Declaration for any purpose except as to the particular property and particular provision hereof covered by the variance, nor does it affect the Condominium Owner's obligation to comply with all governmental laws and regulations.
10.14 Pre-Approvals. The Board may authorize the pre-approval of certain specified types or classes of Construction Activities in the Design Committee Rules if, in the exercise of the Board's judgment, pre-approval of such types or classes of Improvements is appropriate in carrying out the purposes of this Declaration.
10.15 Appeals. The Board may adopt polices and procedures for the appeal of Design Committee decisions to the Board. The Board has no obligation to adopt or implement any appeal procedures, and in the absence of Board adoption of appeal procedures, all Design Committee decisions are final.
11. Insurance. The public liability insurance to be carried by Condominium Owners under Section 8.2 of the Declaration shall be in an amount not less than Two Million Dollars ($2,000,000), combined single limit, or in such other minimum amount as the Board may determine, covering all claims for personal injury and property damage arising out of a single occurrence with.the amount of any deductible approved by the Board. Each Condominium Owner shall review annually the limits of his insurance coverage and increase such limits as appropriate. Each Condominium Owner shall cause the Association to be named as additional insured under such Condominium Owner's liability policy(ies) and shall furnish the Association with a current certificate of such insurance at all times.
12. Condemnation of Condominium Association Property and/or Condominium Units.
12.1 Condemnation of Condominium Association Property an~or Condominium Units. If all or any portion of the Condominium Association Property, or any interest therein, is taken by right of eminent domain or by private purchase in lieu of eminent domain, the award in condemnation shall be paid to the Association and deposited in the SDH\30447.0001\362731.4 6/7/2007 -10-
applicable Operating Fund. The Association has the exclusive right to participate in such proceedings and shall, in its name alone, represent the interests of all Members_ with respect to the Condominium Association Property.
12.2 Minor Takings of Condominium Units Within Limits. If (a) there is a taking of a portion of one or more Condominiums such that the intended use of the Condominiums is not substantially and adversely affected, and (b) restoration of such Condominiums can be accomplished at a cost less than or equal to the sum of (i) the amount of the condemnation awards for such takings plus (ii) any amounts the Condominium Owners of the partially taken Condominiums wish to contribute to restoration plus (iii) an amount less than or equal to five percent (5%) of the Budgeted gross expenses of the Association for that Fiscal Year ( collectively, the "Allowable Cost'), then (provided that the applicable Condominium Owners have made their agreed upon contributions) the Board shall contract for such restoration and levy a Reconstruction Assessment against the applicable Condominium Owners in an amount equal to the Allowable Cost minus the amount of the condemnation awards and applicable Condominium Owners' contributions. The condemnation awards, Condominium Owners' contributions and Reconstruction Assessment shall be applied to such restoration. If the restoration is accomplished at a cost less than the amount of the condemnation awards, then that portion of the condemnation awards which exceeds the restoration costs shall be paid to the Condominium Owners of the partially taken Condominiums in proportion to the decreas¥s in the fair market values of their Condominiums; however, such awards shall first ~e applied to the balance then due on any Mortgages encumbering such Condominium Owners' Condominiums, in order of priority. •
12.3 Minor Takings of Condominium Units Exceeding Limits. If(a) there is a taking of a portion of one or more Condominiums such that the intended use of the Condominiums is not substantially and adversely affected, and (b) restoration cannot be accomplished at a cost less than or equal to the Allowable Cost, then the Board shall call a Special Meeting of the Condominium Owners of Condominium Units. If more than fifty percent (50%) of the voting power of the Condominium Owners of Condominium Units of the taken Condominium Units is represented at such Special Meeting, either in person or by proxy, and a majority of the votes of the taken Condominium Units cast at such Special Meeting in favor of levying a Reconstruction Assessment in an amount equal to the restoration costs minus the sum of the amount of the condemnation awards and the amounts the Condominium Owners of the taken Con_dominiums wish to contribute to such restoration, then upon the receipt by the Association of all contributions agreed to by the applicable Condominium Owners, the Board shall contract for such restoration and levy a Reconstruction Assessment, and the condemnation awards, applicable Condominium Owners' contributions and Reconstruction Assessment shall be applied to such restoration.
12.4 Major Takings of Condominium Association Property. If the requisite approval is not obtained at the Special Meeting referred to above, or if there is a taking of a portion of one or more Condominiums such that the Condominiums are not capable of being restored without the intended use of the Condominiums being substantially and adversely affected, then the award in condemnation shall be paid to the Condominium Owners of the taken Condominiums; however, such award shall first be applied to the balance then due on any Mortgages encumbering such Condominium Owner's Condominium, in order of priority. The SDH\30447.0001\36273 l.4 6/7/2007 -11-
Board shall have the remaining portions of the taken Condominiums razed. The remaining portions of the taken Condominiums shall become part of the Condominium Association Property, and the Condominium Owners of such taken Condominiums, by acceptance of the award allotted to them in taking proceedings, relinquish (a) to the other Condominium Owners, on the basis of their relative Condominium Ownership of the Common Area therein, such Condominium Owners' undivided interest in the Common Area, and (b) to the Association, the remaining portions of the Condominiums. Each Condominium Owner relinquishing his interest in the Common Area pursuant to this Section shall, at the Board's request and at the Association's expense, execute and acknowledge such deeds and other instruments which the Board considers necessary or convenient to evidence such relinquishment. Each Condominium Owner of a taken Condominium is not liable for Assessments under the Declaration (and this Supplemental Declaration) which accrue on or after the date such Condominium Owner accepts his condemnation award.
13. Unsegregated Real Property Taxes. To the extent not assessed to or paid by the Condominium Owners, the Association shall pay all real and personal property taxes and Assessments levied on the Condominium Properties. If any Condominiums are taxed under a tax bill covering more than one Condominium, then each Condominium Owner shall pay his 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 allocate taxes among the Condominium Owners and their Condominiums, based on the percentage share of Common Expenses allocated to each Condominium as compared to the total number percentage of Common Expenses allocated to all Condominiums subject to the unsegregated tax bill. The Association shall, at least forty-five ( 45) days before the delinquency date of any tax installment, deliver to each Condominium Owner a copy of the tax bill, along with a written notice setting forth the Condominium Owner's obligation to pay his share of the tax installment and the potential additional charges to the Condominium Owner for failure to comply. The Association shall pay the taxes on behalf of any Owner who does not pay his share. The Association shall add to the Annual Assessment of a delinquent Owner the amount of any sum advanced, 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, which late charge results from the failure of the delinquent Condominium Owner to make timely payment of his share of the taxes.
14. Conflicts. In the event of any conflict between any provision of the Declaration and any provision of this Supplemental Declaration, this Supplemental Declaration shall prevail and control.
15. Amendment.
15.1 Amendment by Declarant. So long as Declarant owns all or any portion of the Condominium Properties, this Supplemental Declaration may be amended by Recording a written instrument signed by Declarant setting forth such amendment. Such amendment by Declarant shall not require the approval of the other Owners.
SDH\30447.0001\36273 l.4 6/7/2007 -12-
15.2 Amendments by Owners. The provisions of this Supplemental Declaration may be amended by Recording an instrument, signed and acknowledged by Declarant (for so long as Declarant owns a Condominium Unit in the Condominium Properties) and two (2) officers of the Association, setting forth the amendment and certifying that such amendment has been approved by (a) Owners representing more than fifty percent (50%) of the voting power of the Association, (b) Condominium Owners representing more than fifty percent (50%) of the voting power of the Condominium Owners, and (c) the requisite percentage of holders and insurers of first Mortgages encumbering the Condominium Properties, in the case of those amendments which this Supplemental Declaration requires to be approved by first Mortgagees, as described in Section 15.3 below. Amendments shall be effective upon Recordation. So long as Declarant owns a Lot or Condominium Unit in the Properties there shall be no amendment to the Restrictions without Declarant's written approval.
15.3 Approval of First MortgageesNotwithstanding anything to the contrary in Section 15 .2 above, any of the following amendments, to be effective, must be approved by more than fifty percent (50%) of first Mortgagees of Condominium Units who have requested the Association to notify them of proposed action requiring the consent of a specified percentage of first Mortgagees, based upon the Percentage Share of Condominium Common Expenses allocated to a Condominium Unit pledged as security for the respective first Mortgage: (a) any amendment which affects or purports to affect the validity or priority of encumbrances or the rights or protections granted to Beneficiaries of first Mortgages of Condominium Units; (b) any amendment which would necessitate a Mortgagee after it has acquired a Condominium Unit through foreclosure to pay more than its proportionate share of any unpaid assessment or assessments accruing after such foreclosure; ( c) any amendment relating to the insurance provisions of this Supplemental Declaration, the application of insurance proceeds or the disposition of any money received in any taking under condemnation proceedings; ( d) any amendment which would or could result in termination or abandonment of the Condominium Properties or partition or subdivision of a Lot in any manner inconsistent with the provisions· of this Supplemental Declaration; and/or (e) any amendment which would or could result in (i) an encumbrance being cancelled by forfeiture, or (ii) an individual Condominium Unit not being separately assessed for tax purposes ..
Any approval by a holder of a first Mortgage required under this Section 15 .3 must either be given in writing, or is deemed given if, within thirty (30) days after receipt of written notice of the proposed action sent via registered or certified mail, return receipt requested, the holder does not submit a written response to the notice.
SDH\30447.0001\362731.4 6/7/2007 -13-
Declarant has executed this Supplemental Declaration as of the date set forth below.
Dated: J (AM'--= I '2- , 2007
SDH\30447.0001\362731.4 6/7/2007
WA TERMAN BP, LLC, a California limited
liability company
By: SEVENTH STREET DEVELOPMENT,
LLC, a California limited liability company
Its: Manager
By:
Its:
-14-
STATE OF CALIFORNIA )
) ss
COUNTY OF L@ ~w
On ..)'--'t\ o ~ \ 1- , 200]_, before me, -~e,~(}«.:.:Yic....c0.-=------_\(-1-•-1)-=-=--n--'--'7.QS---==----'' Notary Public, personally appeared __ ....::C..~'Yi~<A-~~-~...\-----=h.J--=....:.v.....!V'\!........!...!.;-=~:...5!.....-______ _ personally known to me (~r f>FO¥@a te me on the basis of satisfact6fj' evidefl:cc) to be the perso~ whose namets') isfttre subscribed to the within instrument and acknowledged to me that hefsfleftiirey executed the same in hisfher/tneir authorized capacity(ics), and that by hi~/their signaturets) on the instrument the personfs'), or the entity upon behalf of which the perso~ acted, executed the instrument.
WITNESS my hand and official seal.
SDH\30447.0001\362731.4 6/7/2007 -15-
CMA ,. DIIJOI I
comm1111on ti 1706311
t We • Callfomle
(SEAL)
ILLEGIBLE NOTARY SEAL DECLARATION
GOVERNMENT CODE 27361.7
I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows:
Name of Notary ___ ___,,,~=-.;;;.:.....:tA..=-=.._'l....<.....,:..____.D■-<....l.o...J· .... 2""""""0 .... S~---------- Commission Number ___ 1_7..........,,D~(p~3'-~~7~------------- • Date Commission Expires. __ _,Nc.......:....J/J~V_•______,(h...__,Qoe-,,-->e-d::--'0=--cl---'O=-----------7 County Where Bond is Filed, __ ___.:;_L-__:o:...;.s=------'-A-Yl.:....:......_,5,....._,d=..:....::.~..::=<...----------- Place of Execution of this Declaration =Irv....:...:.:.ain=e,_C=A'-'--"'9=2-=-61=-4.,__ ____________ _ LandAmerica Commercial Services
SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in and under that certain Deed of Trust dated October 24, 2005, and recorded on October 27, 2005, in the Official Records of San Bernardino County, California, as Instrument No. 2005-0807833, which Deed of Trust is between Waterman BP, LLC, a California limited liability company, as Trustor, Commonwealth Land Title Company, as Trustee, and JPMorgan Chase Bank, N.A., as Beneficiary, hereby expressly subordinates such Deed of Trust and its beneficial interests thereunder to the foregoing Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Waterman Business Center ("Declaration'') and to all easements to be conveyed to the Association in accordance with the Declaration. By executing this Subordination, the undersigned agrees that should the undersigned acquire title to all or any portion of the Condominium Properties by foreclosure (whether judicial or nonjudicial), deed-in-lieu of foreclosure or any other remedy in . . or relating to the Deed of Trust, the undersigned will acquire title subject to the provisions of the Declaration, which shall remain in full force and effect. -Dated: ..) v.f' < ) 3
SDH\30447.000 I \362731.4 6/7/2007
, 2007 JPMORGAN CHASE BANK, N.A.,
a national banking ass ciation
By:
By:
-16-
ST ATE OF CALIFORNIA )
) ss
) i.~ 1 /
On :-S, 1 l'.\l. I':> , 200l, before m~, .~') A -~~bJCo.u ,£,,~ • Notary Public, personally appeared EDt .,_10 U) ,r;. (~ ... ~ 1 VtCL ~c{a4 ,
personally known to me ( or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
ST A TE OF CALIFORNIA
COUNTYOF'/'lA.o._1.'~
)
) ss
)
OW, I/\L l~ , 200:1, before ..
(SEAL)
Notary Public, personally appeared _L.!.!' "~~.b.:..~~~~~.:U~-lL-~:___µ~~l.lUA.A:___ personally known to me ( or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person( s ), or the entity upon behalf of which the person( s) acted, executed the instrument.
WITNESS my h d and official seal.
,
(SEAL)
SDH\30447.0001\36273l.4 6/7/2007 -17-
EXHIBIT "1"
CONDOMINIUM ASSOCIATION PROPERTY
The ':Association Property" as defined and described in the Condominium Plan recorded on .:::fun., -c51,7 _, 2007, as Instrument No. ol/JIJ7-t75$'tJ.;24'"~uch Association Property includes, without limitation, Common Walls, other bearing walls, roofs, all other structural elements of the buildings in which the Condominium Units are located; the parking and landscape areas located on Lots 1 and 2 of Tract 18083; the water and sewer systems serving such Lots 1 and 2 ( excluding storm drain catch basins and related filter systems located on Lot 1 ); and the exterior lighting located on Lots 1 and 2.
The parkway landscaping within the right-of-way bordering Lots 1 and 2 of Tract 18083.
The Condominium Association Property includes for maintenance purposes the "City Property" as defined in, and subject to the terms and conditions of, the Easement Deed and Agreement between Declarant and the City of San Bernardino recorded in the Official Records of San Bernardino County, California, on Oct. ~ , 200·6, as Instrument No. 20DD-O<c8~03S-:
The Individual Building Fire Water Systems (including, without limitation, monitoring equipment) for Lots 1 and 2 of Tract No. 18083.
SDH\30447.0001\362731.4 6/7/2007
SDH\30447.0001\362731.4 6/7/2007
EXHIBIT "2"
LOADING AND PARKING AREA
w ::> z
'W
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0 a:
~
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w w er w I-
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LL,
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12'-0"
Ill
LOT I
Ill
l!l
- _COMf0ERC/~L ROAD
--
12'-0"
LOT2
PROPERTY
LINE
(PUBLIC STREET) -----
EXHIBIT 2 - LOADING AND PARKING AREAS
~ LOADING AND P.ARKING AREA
-- -- -
Ill
Ill
----
DATE: 4.27.2007
EXHIBIT "3"
PERCENTAGE SHARE OF CONDOMINIUM COMMON EXPENSES
Percentage Share of
Condo Unit Condominium Common Ex~enses
A-1 6.20%
A-2 3.06%
A~3 3.10%
A-4 3.10%1
A-5 3.06%
A-6 3.06%
A-7 3.08%
A-8 3.08%
A-9 3.06%
A-10 3.06%
A-11 3.10%
A-12 3.10%
A-13 3.06%
A-14 5.33%
B-1 6.65%
B-2 3.15%
B-3 3.19%
B-4 3.19%
B-5 3.15%
B-6 3.15%
B-7 3.17%
B-8 3.17%
B-9 3.15%
B-10 3.15%
B-11 3.19%
B-12 3.19%
B-13 3.15°/o
B-14 6.90%
Total 100%
SDH\30447.0001\362731.4 6/7/2007