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HomeMy WebLinkAboutD-1563 K-5 Commerce Park - Tract 1714 - 053-231-026 Recorded 11/05/1997RECORDING REQUESTED BY: J. J. Parsons -� fk AND WHEN RECORDED MAIL TO: City Clerk 990 Palm St. San Luis Obispo, Ca. 93401 APN: 0.53- 231 -026 'Doc No: 1997- 062962 Rpt No: 000801201 Official Records ;RF -1 103.00 San Luis Obispo Co. Julie L. Rodewald j Recorder Nov 05, 1997 Time: 08:00 ; [ 331 ;TOTAL 103.00 J DECLARATION OF O COVENANTS CONDITIONS AND RESTRICTIONS Establishing a Plan of Condominium Ownership of K -5 COMMERCE PARK TRACT 171' P/5V3 0 0 TABLE OF CONTENTS ARTICLE Page I. DEFINITIONS 1 Section 1.01 Architectural Rules 1 1.02 Articles, Bylaws 2 1.03 Association 2 1.04 Association rules 2 1.05 Board or Board of Directors 2 1.06 Condominium 2 1.07 Condominium Plan 2 1.08 Common Area 2 1.09 Declarant 2 1.10 Declaration 2 1.11 Member 2 1.12 Owner 2 1.13 Project 2 1.14 Mortgage; Mortgagee 2 1.15 Person 3 1.16 Subdivider 3 II. DESCRIPTION OF PROJECT; CREATION OF UNITS AND COMMON AREAS 3 Section 2.01 Division of Property 3 III. MEMBERSHIP IN ASSOCIATION 5 Section 3.01 Membership 5 3.02 Termination of Membership 5 3.04 Successor To Declarant 5 IV. ORGANIZATION OF THE ASSOCIATION, ELECTION AND MEETING 5 Section 4.01 Organization Meeting 5 4.02 Voting 5 4.03 Elections 6 4.04 Board Meetings 6 4.05 Bylaws 6 V. MANAGEMENT BY THE ASSOCIATION 6 Section 5.01 General Authority of Board 6 5.02 Enforcement 7 5.03 Contracts 7 5.04 Board Prohibited Acts 7 5.05 Budget and Financial Statements 8 5.06 Collections 9 5.07 Acquisition of Personal Property 9 Section 5.08 Insurance 9 i VI. VII. VIII. IX. X. MAINTENANCE • 10 Section 6.01 Maintenance by Association 10 6.02 Right of Entry 1.0 6.03 Association Powers Exclusive 12 6.04 Owner Maintenance 12 6.05 City's Remedies 12 MAINTENANCE ASSESSMENTS 13 Section 7.01 Covenant to Pay Assessments 13 7.02 Basis of Regular Assessment 13 7.03 Special Assments for Capital Improvement 1.4 7.04 Limitation on Regular and 17 9.05 Special Assessments 14 7.05 Uniform Rate of Assessment 14 7.06 Date of Commencement of 17 9.07 Regular Assessments 1.4 7.07 Certificate of Payment 15 ENFORCEMENT OF ASSESSMENTS 15 Section 8.01 8.02 8.03 8.04 8.05 Due Dates, Late Charges, And Interest 15 Assessment Lien 15 Foreclosure of Lien 16 Legal Action 16 Mortgage Protection 16 PROPERTY RIGHTS AND EASEMENTS 16 Section 9.01 Undivided interest in ii Common Areas 16 9.02 Rights in Common Areas 17 9.03 Declarant's Use of Common Area for Sales Activities 17 9.04 Delegation of Use 17 9.05 Waiver of Use 17 9.06 Additional Provisions Relating to Common Area 17 9.07 Utility Easements 17 9.08 Parking Spaces 18 ARCHITECTURAL CONTROL 18 Section 10.01 Architectural Committee 18 10.02 Membership 18 10.03 Duties of Committee 18 10.04 Meetings 19 10.05 Architectural Rules 1.9 10.06 Waiver 19 Section 10.07 Liability 19 10.08 Board Review 19 ii XI. XII. XIII. 0 • USE RESTRICTIONS 20 Section 11.01 Condominium Use 20 1.1.02 Signs 20 11.03 Lawful Use 20 11.04 Temporary Structures, Boats 22 12.04 and Vehicle Restrictions 20 11.05 Advertising Activities 20 11.06 Permissible Uses 20 11.07 Alteration of Common Area 21 11.08 Antennas and Equipment 21 11.09 Animals - 21 11.10 Trash Removal 21 11.11 Liability for Guests 21 11.12 Combustible or Toxic 24 GENERAL /MISCELLANEOUS PROVISIONS Materials 21 DAMAGE OR DESTRUCTION 22 Section 12.01 Bids and Insurance Proceeds 22 12.02 Sufficient- Insurance Proceeds 22 12.03 Insurance Proceeds Partially Sufficient 22 12.04 Insurance Proceeds Less Than 85% of the Cost to Restore 23 12.05 Minor Repair and Reconstruction 23 12.06 Reconstruction 23' 12.07 Certificate of Intention 23 12.08 Revision of Condominium Documents 24 12.09 Interior Repairs 24 GENERAL /MISCELLANEOUS PROVISIONS 24 Section 13.01 Binding Effect 24 13.02 Nuisance 24 13.03 Violation of Law 24 13.04 Amendments 24 13.05 Condemnation 25 13.06 Rights of Mortgagee 25 13.07 Construction 25 13.08 Notices 25 13.09 Cumulative Remedies 26 13.10 Costs and Attorney Fees 26 13.11 Partial Invalidity 26 Number, Gender 26 .13.12 13.13 Notice of Transfer 26 13.14 Liability 26 13.15 Joint and Several Liability 27 iii DECLARATION OF COVENANTS CONDITIONS AND RESTRICTIONS Establishing a Plan of Condominium Ownership of K -5 COMERCE PARK J. J. Parsons, an individual, hereafter referred to as Declarant is the owner of the real property ( "Project ") subject to this Declaration, located in the City of San Luis Obispo, County of San Luis Obispo, State of California, and more particularly described as follows: UNITS 1 THROUGH 25 OF TRACT 1714, IN THE CITY OF SAN LUIS OBISPO, IN THE COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, ACCORDING TO THE MAP RECORDED nOV 5 Iga-I , IN BOOK I Qj , PAGE -j3 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,. Declarant declares: 1. Declarant has improved the Project for commercial condominium purposes and hereby establishes a plan for the individual ownership within the Project of condominiums as defined in California Civil Code Section 783. 2. Declarant hereby establishes a plan of condominium ownership as described in Title 6 (commencing with Section 1350) of Part 4 of Division 2 of the California Civil Code. 3. NOW THEREFORE, it is hereby declared that the Project shall be held, sold, conveyed, leased, used, occupied, improved, mortgaged and encumbered subject to the following Declaration as to division, easements, rights, liens, charges, covenants, servitudes, restrictions, limitations, conditions and uses to which the Project may be put, hereby specifying that such Declaration shall operate for the mutual benefit of all owners of the Project and shall constitute covenants to run with the land and shall be binding on, and for the benefit of Declarant, its successors and assigns, the Association, its successors and assigns, and all subsequent owners of all or any part of the Project, together with their grantees, successors, heirs, executors, administrators, devisees and assigns, for the benefit of the Project, and shall, further, be imposed upon all of the Project as a servitude in favor of each and every other owner thereof as the dominant tenement. ARTICLE I DEFINITIONS Whenever used in this Declaration the following terms shall have the following meanings: Section 1.01. Architectural rules: Rules and regulations of the committee described in Article X, Section 10.05. 1 • • Section 1.02. Articles, Bylaws: The Articles Of Incorporation and the Bylaws of the Association, as the same may be duly amended from time to time. Section 1.03. Association: K -5 COMMERCE PARK OWNERS ASSOCIATION, a California Nonprofit Mutual Benefit Corporation, its successors and assigns. Section 1.04. Association rules: Rules and regulations adopted by the Board from time to time for the use and enjoyment of the common area. Section 1.05. Board or Board Of Directors: The Board Of Directors of the Association. Section 1.06. Condominium: A condominium as defined in Section 783 of the Civil Code of California, consisting of: (a) A separate fee simple interest in a Unit, and (b) An undivided interest in the common area as a tenant in common. Section 1.07. Condominium Plan: The Condominium Plan for Tract 1714 recorded 6nVCMhf!r C-) IG - as Instrument No. I q 9 7 - 06,2 961) of Official Records, in the office of the County Recorder of San Luis Obispo County, California. Section 1.08. Common area: The Project, excepting all of the Units. Section 1.09. Declarant: J. J. Parsons, an individual. Section 1.10. Declaration: This Declaration, as from time to time amended, modified or changed. Section. 1.11. Member: Every person or entity holding membership in the Association. Section 1.12. Owner: The record owner (including Declarant) or owners, if more than one, of a condominium in the Project, excluding those persons or entities having such interest merely as security for the performance of an obligation. If a condominium has been sold by a contract of sale, the word "owner" shall refer to the contract vendee only if the contract has been recorded in the office of the recorder for San Luis Obispo County, California, and complies with the provisions of Sections 2985 through 2985.6 of the California Civil Code in effect on the date of the contract; otherwise, the word "owner" shall refer to the contract vendor. Section 1.13. Proiect: The Property including all structures and improvements thereon, fixtures, installations and plantings now or hereafter constructed or installed, which. Project shall be commonly known as K -5 COMMERCE PARK. Section 1.14. Mortgage; Mortgagee: Mortgage means a mortgage or deed of trust encumbering a condominium or other portion of the Project. A mortgagee shall include the beneficiary under a deed of trust and any guarantor or insurer 2 • • of a mortgage. An "institutional" mortgagee is a mortgagee that is a bank or savings and loan association or mortgage company or other entity chartered or licensed under'federal or state laws whose principal business is lending money on the security of real property or investing in such loans, or any insurance company or any federal or state agency or instrumentality, including, without limitation, the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation. A "first" mortgage, or "first" mortgagee is one having priority as to all other mortgages or holders of mortgages encumbering the same condominium or other portion of the Project. Section 1.15. Person: The term person means a natural person, corporation, partnership, association, firm or other entity as the context may require. Section 1.16. Subdivider: Subdivider shall mean and be synonymous with the word "Declarant," and the same may be used interchangeably with the same meaning. ARTICLE. II DESCRIPTION OF PROJECT; CREATION OF UNITS AND COMMON AREAS Section 2.01. Division Of Property. The Project is hereby divided into the following separate freehold estates: (a) Commercial Units: Each of the Units, as separately numbered or lettered and designated on the condominium plan, shall be a separate freehold estate and shall be defined and referred to herein as a "Unit." Each Unit consists of the airspace bounded by and contained within the interior unfinished surfaces of the perimeter walls and including any individual works of improvement located within the defined airspace of said Unit, including bathrooms and all related plumbing, offices, fixtures and equipment (including any respective roof mounted equipment), all above -slab pipes including incoming domestic water service and above -slab sewer pipes, vents, flues, above -slab electrical conduits, outlets, electric and telephonic service panels, their above ground and their underground wires to the point of origination at the main service panel for each building, and all circuit breakers and fuses thereof, any above floor natural gas transmission pipes, when located within the Unit, or within the "Easement Premises" of any other Unit, and any surface noted herein which may form a part of a component element of a Unit, i.e. floors, walls, and ceilings, including ceiling insulation materials. Also included as part of a Unit are all windows, doors and door jambs (both walk -thru. and roll-up) , including their trim metal, and all appurtenant sidewall sheet metal skin (40.0 ft. each end of all Units) and endwall sheet metal skin. (85.0 ft. applicable only to: Units 1, 6, 7, 12, 13, 18, 19, and 25), said sidewall and endwall metal skins which are deemed to be a part of a Unit are those which are up to 14.5 feet above finished floor ( finished slab) elevation, fire sprinklers and fire sprinkler transmission piping which are after -the -fact additions to the basic building shell Fire Sprinkler System. (It should be noted that the basic shell system includes one pipe and sprinkler head for one bathroom per Unit) . 3 If a boundary wall has not been constructed for a Unit, or if a boundary wall has been removed, the boundaries of the Unit shall be as described on the condominium plan. The following are not a part of a Unit: Roofs, interior and exterior parapet walls 14.5 feet or more above finished slab floor elevation, gutters, downspouts, bearing walls, plumbing walls, bearing columns, bearing trusses, beams, girders and girder trusses, roof trusses, side wall wind trusses, sidewall and endwall purlins, flange braces, cable braces, vertical and horizontal supports, foundations, floors, sub - surface pipes, sub - surface conduits for electrical and communications wires, and other such utility installations, meters and service panels, wherever located (including any conduits, wires, or outlets for the transmission of power for "common area" lighting and related "common area" utilities) , basic "shell building" fire sprinklers, fire sprinkler transmission piping, water delivery system, standpipes, controls, valves, and monitoring systems located within the interior of a Unit are common area and not part of a Unit, except for the finished surfaces. A Unit does not include any of the area defined as "common area" in this Declaration. A Unit does not include sidewalks, loading pads, bicycle areas, utility rooms, and parking spaces. The owner of two or more contiguous Units may, with consent of the Architectural Committee, remove one or more bathrooms and the common wall or walls separating such Units in order to more efficiently use space. Removal shall be at the expense of the owner, and no bearing walls, structural walls, plumbing walls, columns or trusses shall be removed or altered. An easement for ingress and egress through the common area space occupied by the removed wall shall exist for the benefit of such owner until the removed bathrooms and walls are replaced. In interpreting deeds, Declarations and the condominium plan, the existing physical boundaries of a Unit or of a Unit reconstructed in substantial accordance with the original condominium plan shall be conclusively presumed to be its boundaries rather than the description expressed in the deed or condominium plan, regardless of minor variances between boundaries shown on the plan or in the deed and those of the building, and regardless of settling or lateral movement of the building. Whenever reference to a Unit is made in this Declaration, in the condominium plan, in any deed or elsewhere, it shall be assumed that such reference is made to the Unit as a whole, including each of its component elements, and to all restricted easements appurtenant to such Unit over common areas, if any. ( b ) Common areas: A freehold estate consisting of an undivided interest in the remaining portion of the Project is described and referred to herein as the "common areas" or "common area". The common areas shall include, without limitation, the Project's structures (except for the Units), the solid earth of the lot upon which the structures are located, exterior landscaping, parking and driveway areas, wells, pumps, tanks, valves, hydrants, pipes, utility service equipment, meters, panels, controls, alarms, and any improvements related thereto, signs and directories not located within or upon a Unit, and utility installations not located within and exclusively servicing a Unit. Ell 0 • ARTICLE III MEMBERSHIP IN ASSOCIATION Section 3.01. Membership. Every owner shall be a member of the Association, which shall be a nonprofit mutual benefit corporation. There shall be no qualifications for membership other than ownership of a condominium. Section. 3.02. Termination Of Membership. A member's membership in the Association shall cease upon the termination of such member's status as an owner, whether by the sale, assignment or conveyance of his ownership interest or otherwise. An owner shall have no liability for assessments levied after the date on which his status as an owner is terminated. Section 3.03. Avoiding Membership. An owner may not avoid the obligations of membership in the Association. Without limiting the application of the foregoing, an owner's non use of all or part of the common area, renunciation or abandonment of his Unit or condominium, or any other act of abandonment or renunciation shall not relieve him of the obligations of membership. Section 3.04. Successor To Declarant. The immediate successors to the Declarant herein, being the first purchasers of condominiums, shall be liable for assessments only from the date of acquisition of title to their condominiums unless otherwise agreed. ARTICLE IV ORGANIZATION OF THE ASSOCIATION ELECTION AND MEETING Section 4.01. Organization Meeting. The owners of the condominiums shall hold an organization meeting of the Association within ninety (90) days following the sale by Declarant of fifty -one percent (51 %) or more of the condominium Units within. the Project. The Declarant shall call the organization meeting in the manner prescribed in the Bylaws for a regular meeting. Written notice shall be given by Declarant at least ten (10) days and not more than forty -five (45) days prior to the date of such meeting. Thereafter, meetings of such owners shall be held at such times as shall be determined by action of the Association's Board Of Directors. The secretary of the Association shall give at least ten (10) days prior written notice of each annual meeting. Special meetings may be called as hereafter provided. Section 4.02. Voting. There shall be one vote for each Unit in the Project. Fractional votes shall not be allowed. If more than one person is the owner of a Unit and such persons are unable to agree among themselves as to how their vote or votes shall be cast, they shall lose their right to vote on the matter in question. If less than all of the persons jointly owning a certain Unit cast a vote representing that Unit, it will thereafter conclusively be presumed for all purposes that the vote was cast with the authority and consent of all of the owners of that Unit. In the event more than one vote is cast for a particular Unit, such votes shall be void and not be counted. 5 Section 4.03. Elections. At the first organization meeting the members shall elect a Board Of Directors to serve until the first annual meeting, and thereafter at each annual meeting the members shall elect a Board Of Directors for a term of one year, all of whom shall be owners or agents of owners of condominiums in the Project. Every owner entitled to vote at any election of the Board Of Directors may cumulate his vote and give one candidate a number of votes equal to the number of Directors to be elected, or may distribute his vote on the same principle among as many candidates as he desires. An owner shall have separate voting rights for each Unit owned. (a) Vacancies in the Board Of Directors caused by any reason other than removal of a Director by a vote of the Association shall be filled by a majority vote of the remaining Directors, even though they may constitute less than a quorum. (b) The Association shall file with the city clerk the names and addresses of all officers of the Association within fifteen (15) days of any change in officers of the Association. Section 4.04. Board Meetings. The Board shall conduct its organization meeting immediately upon the adjournment of the organization meeting of the owners. The annual meeting of the Board shall be held immediately upon adjournment of the annual meeting of the owners. Regular meetings shall be held as set forth in the Bylaws of the Association. The Board of Directors shall elect from among them a president, vice president, secretary and treasurer of the Association. The treasurer may be, but need not be, a member of the Board. Section 4.05. Bylaws. Except as herein provided, all matters relating to membership and voting rights in the Association, and operation of the Association, shall be as provided in the Bylaws. ARTICLE V MANAGEMENT BY THE ASSOCIATION Section 5.01. General Authority Of Board. In general, the Board shall have authority to conduct all business affairs of common interest to all owners. The powers of the Board shall include, but shall not be limited to, the authority to: collect the monthly maintenance charge from the owners, contract for and pay for all common area utilities, monitoring, lighting, pumping, sewage disposal, repairs, landscaping, gardening, common area trash and garbage removal, legal and accounting services, comply with requirements of the County of San Luis Obispo Department of Public. Health regarding water wells and private water supply monitoring requirements, comply with requirements of the San Luis Obispo City Fire Department regarding fire alarms, systems, fire department access and requirements, and such other services and expenses as shall be reasonably required for the maintenance of the common area; purchase and pay for insurance as hereafter provided; purchase and pay for fidelity bonds for its officers and employees; purchase and pay for necessary supplies and personal property for the common area; pay taxes and special assessments which are or could become a lien on the common area or a portion thereof; establish a reserve for replacements 2 • • for the various components and elements of the common areas; and formulate rules for the operation and use of the common area, monitor individual owners' compliance with regard to repairs of damaged or unsightly exteriors and orderly operating conditions which might affect other owners. Section 5.02. Enforcement. The Association, or any member, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration or any amendment thereto; provided, however, that the Association shall have the exclusive right to enforce assessment liens. Failure by the Association or by any owner to enforce any covenant or restriction herein contained shall not be deemed a waiver of the right to do so thereafter. The Association shall not cause a forfeiture or abridgment of an owner's full use and enjoyment of his or her Unit because of the failure of the owner to comply with the Articles, Declaration, Bylaws and Association Rules, except by (i) a judgment of a court, (ii) a decision arising out of arbitration, or (iii) on account of a foreclosure or sale under a power of sale for failure of the owner to pay assessments duly levied by the Association. Section 5.03. Contracts. The Board shall have authority to contract with qualified persons or corporations for the professional handling of all or any part of the services required for the maintenance of the Project and /or the handling of the Association's financial affairs. The Board shall not enter into, nor shall the members ratify, any such contract with a term in excess of one year unless reasonable cancellation provisions are included in the contract. The professional manager may be authorized to file any notice and to take any legal action on behalf of the members, which is within the power and authority of the Board. Section 5.04. Board Prohibited Acts. The Board shall be prohibited from taking any of the following actions, except with the vote or written assent of a majority of the voting power of the Association: (a) Entering into a contract for goods or services to be furnished to the common area or the owners' Association for a term longer than one year with the following exceptions: (1) A contract with a public utility company if the rates charged for the materials or services are regulated by the Public Utilities Commission provided, however, that the term of the contract shall not exceed the shortest term for which the supplier will contract at the regulated rate. (2) Prepaid casualty and /or liability insurance policies of not to exceed three (3) years duration, provided that the policy permits short-rate cancellations by the insured. (b) Incurring aggregate expenditures for capital improvements to the common area in any fiscal year in excess of ten percent (10 %) of the budgeted gross expenses of the Association for that fiscal year. (c) Selling during any fiscal year property of the Association having an aggregate fair market value greater than ten percent (10 %) of the budgeted gross expenses of the Association for that year. 7 ® • (d) Paying compensation to members of the Board or to officers of the Association for services performed in the conduct of the Association's business provided, however, that the Board may cause a member or officer to be reimbursed for expenses incurred in carrying on the business of the Association. Section 5.05. Budget And Financial Statements. A pro forma operating statement (budget) for each fiscal year shall be distributed to each member not less than forty -five (45) days nor more than sixty (60) days before the beginning of the fiscal year. The budget shall include the following information: (a) Estimated revenue and expenses on an accrual basis. (b) The amount of the total cash reserves of the Association currently available for replacement or major repair of common facilities and for contingencies. (c) An itemized estimate of the remaining life of, and the methods of funding to defray the costs of, repair, replacement or additions to major components of the common areas and facilities for which the Association is responsible. (d) A general statement setting forth the procedures used by the Board in the calculation and establishment of reserves to defray the costs of repair, .replacement or additions to major components of the common areas and facilities for which the Association is responsible. A balance sheet and an operating statement shall be distributed to the members. The operating statement shall include a schedule of assessments received and receivable, identified by the number of the Unit and the name of its owner. A balance . sheet as of the last day of the Association's fiscal year, an operating statement for the fiscal year, and a statement of changes in financial position for the fiscal year shall be distributed to the members within one hundred twenty (120) days after the close of the fiscal year. The report shall be prepared in accordance with generally accepted accounting principles. If the report is not prepared by an independent accountant, it shall be accompanied by the certificate of an authorized officer of the Association that the statements in the report were prepared from the books and records of the Association without independent audit or review. For any fiscal year in which the gross income of the Association exceeds seventy -five thousand dollars ($75,000), the report shall be prepared by a licensee of the California State Board of Accountancy. Any member may at any time and at his own expense cause an audit or inspection to be made of the books and records of the Board Of Directors or any manager appointed by the Board Of Directors. In addition to financial statements, the Board Of Directors annually shall distribute within sixty (60) days of the beginning of the fiscal year, a statement of the Association's policies and practices in enforcing its remedies against members for defaults in the payment of regular and special assessments, including the recording and foreclosing of liens against members' Units. 0 Section 5:06. Collections. The Board Of Directors may delegate to a bank, qualified financial or accounting firm, or other qualified person, the collection of maintenance charges, the disbursement thereof, and the preparation of annual financial statements. Section 5.07. Acctuisition Of Personal Property. The Board may acquire and hold, for the benefit of the members, tangible and intangible personal property and may dispose of the same by sale or otherwise. Title to said personal property shall be taken in the name of the Association. The beneficial interest in said property shall not be transferable by a member except in connection with the sale of his Unit, or where such property is being disposed of for the benefit of the members. A sale of a Unit shall transfer to the purchaser ownership of the transferor's beneficial interest in such personal property. Section 5.08. Insurance. The Association shall acquire the following insurance policies for the benefit of the Units and owners: (a) Casualty: A policy or policies of insurance for the full insurable replacement value, without deduction for depreciation, of all common area improvements, for the interest of and naming as insured the Association for the use and benefit of the owners, as their interests may appear. In any event, the amount of coverage shall be sufficient so that insurance proceeds from a covered loss shall provide at least the lesser of: (i) the full amount of the covered damage or loss, or (ii) compensation to the first mortgagee of each Unit equal to the full unpaid balance of the mortgage. Such policy or policies shall: (1) Provide coverage against the perils of fire, extended coverage, vandalism and malicious mischief, as minimum requirements; (2) Provide for a separate loss payable endorsement in favor of the mortgagee or mortgagees of each Unit as their interests may appear; (3) Contain a waiver of subrogation rights by the insurer as against the Association, its officers the Board and the owners; (4) Be primary to and shall not be affected by any right of offset, proration or contribution by reason of any insurance held by an owner. (b) Public liability: A policy insuring the Association, its officers, the Board and owners against any liability to the public or to the owners, their guests, invitees or tenants, incident to the ownership or use of the common area. Limits of liability under such policy or policies of insurance shall be in such amounts as the Board deems prudent. Said policy or policies shall contain severability of interest endorsements which shall preclude the insurer from denying the claim of named insured because of any neglect or other act or omission of another named insured (c) Workers' compensation: Workers' compensation insurance, including employer's liability insurance to the extent necessary to comply with applicable laws. z • (d) The Association shall obtain such other insurance for the protection of the Association and directors, officers and employees and agents, and for the protection of the owners, as the Board may deem advisable. ARTICLE VI MAINTENANCE Section 6.01. Maintenance By Association. The Association shall maintain all of the common areas, including, but not limited to, common area signs and directories, common area lighting, electrical service panels, meters, monitoring equipment, utility lines, pipes and conduits, drainage and sewer easements, and all common area facilities including roofs, gutters, downspouts, exterior building surfaces located 14.5 feet or more above finished floor, (but not exterior glass of the Units) , wells, pumps, tanks and appurtenances thereto, basic • fire sprinkler systems, pumps, tanks, valves, hydrants, and fire alarm monitoring systems, common area driveways, loading areas, parking areas, bicycle areas, trash areas, utility rooms, storage rooms, landscaping and all property that may be acquired by the Association. Maintenance shall include painting, resurfacing, repairing and replacement, when required by normal wear or deterioration. Any and all lighting shall be directed away from public roads and adjacent properties. The Association shall have the authority to service, and may grant easements where necessary for any utilities, communications, and sewer facilities over the common area to serve the common areas and the condominiums. The Association shall not be obligated to repair or replace any part of the common area which has been damaged or destroyed in whole or in part by any willful misconduct or negligent act or omission of any owner, employee, guest or invitee, if and to the extent such loss is not compensated for by insurance paid to the Association. Said excluded items shall be the primary responsibility of the owner whose Unit is involved or to whom the causative willful misconduct or negligence is attributable. If any owner should fail to perform any maintenance, repair or replacement work which is his responsibility, and if the Board Of Directors notifies such owner in writing that in its judgment the performance of such work is necessary to preserve and protect the value and attractive appearance of the Project, or the health, welfare and safety of other owners, and if such work is then not performed and completed by such owner within thirty (30) days after such notice is given, or such longer period as may be allowed by the Board, the Association shall have the right ( but not the obligation) to provide such maintenance or make such repairs or replacement, and the cost thereof shall be payable to the Association by the owner and shall be added to the assessments chargeable to the owners Unit. Section 6.02. Right Of Entry; General and Special. The Association or any other person authorized by the Board shall have the right ( but not the obligation) to enter an owner's Unit in case of an emergency situation originating in and threatening that owner's Unit, or any adjacent owner's Unit, such as, but not limited to, the discharge or malfunction of a portion of the fire sprinkler system; natural gas or electrical delivery system. The Association shall make every effort to control the emergency situation without actual entry into the Unit, and then failing all remedy, the Association shall, first, make every possible 10 • • effort to contact the owner (or owner's representative) prior to entry. However, the Association agent's discretion with regard to time and urgency shall prevail, and this right of entry shall exist whether the owner is present or not. In the case of a dire emergency threatening bodily harm or an extreme safety hazard, such right of entry shall be immediate. In non - emergency cases, an owner shall permit the Association, an Association representative, or another owner (when and only when accompanied by at least one Association representative) , to enter his Unit, only when necessary, for the purpose of performing installations, alterations or repairs to the mechanical, plumbing, electrical, gas and other utility services, provided that such requests for entry are made at least twenty -four (24) hours in advance for repairs of existing malfunctioning systems, and a minimum of seven (7) days in advance for new installation (s) or alteration(s), and that such entry is at a time convenient to the owner, for which the owner shall not unreasonably withhold consent. (a) Units 6, 7, 18 and 19 contain and house fire sprinkler control valves, pressure gauges, and monitoring equipment which control and monitor the fire sprinkler system and alarms for each respective building. Those specified Units shall be bound by the following "emergency right of entry" provisions, relative to those fire systems only: (1) A fire sprinkler or delivery pipe malfunction, leak, or discharge into any Unit within that building which is of an emergency nature, threatening the safety of the occupants, the contents, or the destruction of the Unit itself (or a Unit serviced by that portion of the system) containing the discharge. In the event of an emergency entry by the Association (or Association .representative) , the Association will make every reasonable effort to be accompanied by the Unit owner, or if immediately unavailable, a Board member, or if immediately unavailable by another owner, unless prior written owners authorization has been provided to the Association, in advance, designating such parties the right of entry. (2) The Association shall at all times be provided an operable key to the Unit, as well as any codes necessary to circumvent any security alarm systems, and the Association shall have the immediate right of entry into Units 6, 7, 18 and 19 for the sole purpose of emergency access to water flow control valves and alarm monitoring equipment and only under the conditions set forth above. (b) Units 3, 10, 15 and 22 contain devices known as "inspector test valves" for each building, relative to the fire systems and equipment set forth in Section 6.02 (a) above, and the Association shall have a right of entry for the purpose of performing various random tests as required by the San Luis Obispo Fire Department and their officials, persons qualified and licensed as fire alarm companies performing routine tests as regularly required by the San Luis Obispo Fire Department, or by any agent of any fire insurance company that shall be providing insurance upon any owner's Unit within that building. This right of entry shall be subject to the 24 hour owners notification and escorted as described in the requirements of 6.02 (a) (1) above, unless prior written permission and a key has been delivered, in advance, to the Association. 11 • • In the event that any of the above mentioned "affected Unit owners" willfully fail to cooperate with any testing agent, provided that proper and timely owners notification has been given, he shall reimburse any extra costs incurred by and grant to the Association the right of emergency and immediate entry subject to escort as described herein. Section 6.03. Association Powers Exclusive. Except as otherwise provided to the contrary in this Declaration, the powers and duties enumerated in this Article shall be exclusively those of the Association. No owner shall exercise such powers or perform such duties without the written consent of the Board. The Association shall have the exclusive power and duty to contract for all services, goods, insurance and other items for which payment is to be made from the maintenance fund. Section 6.04. Owner Maintenance. It shall be the obligation of each condominium owner to maintain, repair and replace, if required, at his own expense, all external installations and components of his Unit including, but not limited to, exterior building "skin" (metal siding), doors, roll-up doors, door jambs, trim metals, and any roof mounted equipment pertaining to that respective Unit. It shall be the obligation of each condominium owner to maintain, repair and replace, if required, at his own expense, all internal installations and components of his Unit including, but not limited to all demising walls, all improvements not provided at the time of purchase, all existing bathrooms, offices, rooms, partition walls, electrical equipment, switches, wiring, heating units, outlets, fans, windows (interior and exterior), all above -slab plumbing fixtures and pipes, interior floor, wall, and ceiling surfaces, including ceiling insulation materials, lighting installations, electrical appliances and communications service equipment. Each owner shall be responsible for the repair and maintenance of all improvements which are part of his or her Unit and which are occasioned by the presence of wood - destroying pests or organisms. All maintenance and repair shall be of a high workmanlike quality and shall be performed in a manner complying with the requirements of any applicable departments of the government of the City of San Luis Obispo. Excepted from the provisions of this section shall be the malfunctioning of any system which is a part of the common area and in which the problem necessitating work or service is caused by a malfunction originating within the common area. An owner shall reimburse the Association for any expenditures incurred in repairing or replacing any part of the common area or property located thereon, including, but not limited to, all parking lots, loading areas, and landscaping belonging to the Association which has been damaged through the fault, default, or negligence of the Unit owner, his employees, customers, guests or invitees. Section 6.05. City's Remedies. If the Association fails to perform, or provide for the performance of, its maintenance obligations created hereunder the City, upon thirty (30) days written notice to the Association of its intent to do so, may (but shall not be required to) enter the Project and perform such maintenance, including but not limited to maintenance of exterior building surfaces, common area driveways, loading areas, parking areas, trash areas and landscaping. 12 • • (a) In order to pay the costs incurred by the City in performing said maintenance obligations, the City is hereby expressly empowered to levy special assessments for such costs in accordance with Section 7.03 of this Declaration, and shall further be vested with full power to enforce such assessments pursuant to Article VIII of this Declaration. Such acts by the City shall be taken on behalf of the Association, and this provision appoints the Association and /or City as the attorney in fact and agent of each Owner for all such purposes. (b) Nothing contained in this article shall be construed to limit the City's power to impose assessments in any other manner permitted by law. (c) If the City exercises any of the remedies afforded to it under this section, any sums recovered from such suit or foreclosure sale or judicial foreclosure proceedings shall be applied first to cover the City's. costs of suit for foreclosure including, but not limited to, filing fees, title company charges, miscellaneous foreclosure charges and reasonable attorney's fees. The balance of any sums so recovered shall next be applied to payment of obligations then lawfully owing to the City for enforcement hereof. All remaining sums shall belong to the .Association. ARTICLE VII MAINTENANCE ASSESSMENTS Section 7.01. Covenant To Pay Assessments. Declarant covenants for each condominium owned by Declarant, and each owner other than Declarant by acceptance of a deed to a condominium shall be deemed to covenant, to pay regular assessments and special assessments for capital improvements levied as hereafter provided. The regular and special assessments together with interest and costs of collection as hereafter provided shall be a charge on the real property and shall be a continuing lien upon the condominium against which each such assessment is made. Each such assessment, together with such interest and costs, shall also be the personal obligation of the person who was the owner of such Unit at the time such assessment became due and payable. Section 7.02. Basis Of Regular Assessment. Before the beginning of each fiscal year of the Association, the Board shall estimate the cash required to meet the net charges to be paid during such year by the Association in the exercise of its powers and the performance of its duties, including a reasonable reserve for contingencies and replacements after taking into account any expected income and any surplus from the prior year's fund. The estimated cash requirement for the year shall be assessed to each condominium and its owner equally. Each owner shall be obligated to pay such regular assessments to the Association in equal monthly installments on or before the first day of each month during the fiscal year, or in such other reasonable manner as the Board shall designate. In the event the Board shall fail to estimate the net charges to be paid during the fiscal year within thirty (30) days before the beginning of such year, the assessment for such fiscal year shall be in the amount of the assessments for the prior year, but only until such time as new assessments are fixed by the Board. (a) Prior to the organization meeting of the Association the regular monthly assessment shall be set by Declarant and paid by each owner to Declarant. As 13 • • promptly as possible following its election the Board shall determine the estimated cash requirement for the balance of the fiscal year. Assessments shall be levied against the then owners in the manner herein provided. Any assessments levied and which become payable with respect to a condominium prior to the initial sale thereof by Declarant shall be the obligation of Declarant as the owner thereof. (b) All funds collected hereunder, together with special assessments or charges elsewhere provided for in this Declaration, shall be controlled by the Declarant prior to the organization meeting of the members, and thereafter by the Board, and shall constitute the maintenance fund referred to herein. Section 7.03. Special Assessments For Capital Improvements. In addition to the regular assessments authorized above, the Association may levy special assessments if the estimated cash requirement proves inadequate or for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of a. capital improvement upon the common area, including the necessary fixtures and personal property related thereto. Section 7.04. Limitation. On Regular And Special Assessments. In any fiscal year the Board may not levy, except as provided below, a regular assessment that is more than ten percent (10%) greater than the regular assessment for the preceding fiscal year, or levy special assessments which in the aggregate exceed five percent (5 %) of the budgeted gross expenses of the Association for that fiscal year, unless such assessments are approved by owners casting a majority of the votes at a meeting or election of the Association conducted in accordance with Chapter 5 ( commencing with Section 7510) of Part 3 of Division 2 of Title 1 of the Corporations Code and Section 7613 of the Corporations Code. Assessment increases shall not be limited as set forth above if they are levied for the following purposes: (a) The maintenance or repair of the common areas or other areas which the Association is obligated to maintain or repair, including, but not limited to, the payment of insurance premiums, the payment of utility bills, the costs incurred in maintaining or repairing structures or improvements, and funding reserves. (b) Addressing emergency situations. (c) A special assessment against a member utilized as a remedy by the Board to reimburse the Association for costs incurred in bringing the member and his interest in the Project into compliance with this Declaration and /or the Association Bylaws or other governing instruments of the Association. Such special assessment as a remedy to reimburse the Association shall not become a lien enforceable by a sale in accordance with Sections 2924, 2924 (b) and 2924(c) of the Civil Code. Section 7.05. Uniform Rate Of Assessment. Both regular and special assessments shall be allocated equally between the Units. Section 7.06. Date Of Commencement Of Regular Assessments. The regular assessments provided for herein shall commence as to all condominiums on the 14 • • first day of the month following the conveyance of the first condominium to an owner other than Declarant. Voting rights attributable to a condominium shall not be vested until an assessment has been levied against the condominium by the Association. Section 7.07. Certificate Of Payment. The Association, upon demand, shall furnish to any owner liable for said assessment, a certificate in writing signed by an officer of the Association setting forth whether the regular and special assessments on a specified condominium have been paid, and the amount of any delinquency. A reasonable charge may be made by the Board for the issuance of the certificates. Such certificates shall be conclusive evidence of payment of any assessment therein stated to have been paid. ARTICLE VIII ENFORCEMENT OF ASSESSMENTS Section 8.01. Due Dates, Late Chartres, And Interest. At least ten (10) days prior to the commencement of any regular or special assessment, the Board shall give each owner written notice of the amount of assessment, and the due date (or due dates if paid in installments) and the amount of each installment. The notice need only be given once for any assessment paid in installments. Unless the Board specifies otherwise, the installment due dates shall be the first day of each month. Each regular and special assessment levied pursuant to this Declaration is delinquent ten (10) days after its due date. The Association at its election may require the owner to pay a "late charge" in a reasonable sum to be determined by the Association, but not to exceed ten percent (10 %) of the delinquent assessment or ten dollars ($10) , whichever is greater. In any action to enforce payment of a delinquent assessment, the delinquent owner shall pay reasonable attorney fees and costs incurred by the Association. Interest shall accrue on all sums imposed in accordance with this Article VIII, including the delinquent assessment, reasonable costs of collection, and late charges, at a monthly percentage rate of one and one half percent (1.5$) or at such other rate as the Board may impose from time to time. Interest shall begin to accrue thirty days after the assessment becomes due. Section 8.02. Assessment Lien. The amount of any delinquent assessment, plus costs of collection, late charges, and interest, shall be a lien on the owner's condominium interest upon the recordation with the County Recorder of San Luis Obispo County, California, of a notice of delinquent assessment, which shall state the amount of the assessment and other sums imposed in accordance with this Article. VIII, a description of the owner's condominium interest against which the assessment and other sums are levied, the name of the record owner of the condominium interest against which the lien is imposed, and, in order for the lien 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 shall be signed by the person designated by the Association for that purpose, or if no one is designated, by the President of the Association. Upon payment of the sums specified in the notice of delinquent 15 assessment, the Association at the expense of the owner shall cause to be prepared and recorded a further notice stating the satisfaction and release of the lien encumbering the owner's interest. Section 8.03. Foreclosure Of Lien. The Association or its agent may enforce any lien established pursuant to Section 8.02 above by sale, such sale to be conducted in accordance with the provisions of Sections 2924, 2924b and 2924c of the Civil Code, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner permitted by law. In the event the enforcement of such lien is by action in Court, reasonable attorney fees shall be allowed to the extent permitted by law. In the event of enforcement in the manner provided by law for the exercise of powers of sale in mortgages and deeds of trust, the Association shall be entitled to actual expenses and fees incurred. If any such default is cured prior to sale or other enforcement of such lien, the Board shall cause to be recorded a certificate setting forth the satisfaction and release of such lien, upon payment by the delinquent owner of actual expenses incurred by the Association, including reasonable attorney fees. Section 8.04. Legal Action. In addition to the right of lien herein set forth, the Association may bring a suit at law against a delinquent owner to enforce his assessment obligation Any judgment rendered in such an action shall include costs and a sum for reasonable attorney fees in such amount as the Court may adjudge against the delinquent owner. Section 8.05. Mortgage Protection. Any lien created hereunder shall be subject and subordinate to and shall not affect the rights of the holder of a first mortgage recorded prior to the recording of a notice of assessment lien pursuant to Section 8.02 of this Article VIII. The foreclosure of any such lien created hereunder shall not operate to affect or impair the lien of such mortgage. Upon the sale or transfer of any condominium pursuant to the foreclosure of any such first mortgage, the purchaser in such foreclosure shall take title to the condominium free of the lien hereunder for accrued assessments to the date of such foreclosure, but subject to the lien hereunder for assessments accruing after the date of such foreclosure. ARTICLE IX PROPERTY RIGHTS AND EASEMENTS Section 9.01. Undivided. interest In Common Areas. Ownership of each condominium shall include a Unit, an undivided one - twenty fifth (1 /25th) interest in the common area, a membership in the Association, and any exclusive or nonexclusive easement or easements appurtenant to such Unit over the common area as described in this Declaration, or the deed to the Unit. Declarant, its successors, assigns and grantees, covenant and agree the undivided interests in the common area and the fee title to the respective condominiums conveyed therewith shall not be separated or separately conveyed, and each such undivided interest shall be deemed to be conveyed or encumbered with its respective condominium even though the description in the instrument of conveyance or encumbrance may refer only to the fee title to the condominium. 16 • • Section 9.02. Rights In Common Area. Every owner of a condominium shall have a nonexclusive easement of use and enjoyment in, to and throughout the common area of the Project and for ingress, egress and support over and through the common area. Each such easement shall be appurtenant to and pass with the title to every Unit, subject to the right of the Association to adopt Association rules regulating the use and enjoyment of the common area by the members, their invitees, licensees and lessees. Section 9.03. Declarant's Use Of Common Area. For Sales Activities. Declarant, its sale agents and representatives shall have a right to the nonexclusive use of the common area and the facilities thereon for display and exhibit purposes in connection with the sale of condominiums, which right shall be for a period of not more than three (3) years after the conveyance of the first condominium; provided further, that no such use by Declarant, its sale agents or representatives shall unreasonably restrict the owners in their use of the common area. Section 9.04. Delegation Of Use. Any owner may delegate his right of enjoyment to the common area to his tenants or contract purchasers who occupy his Unit. Section 9.05. Waiver Of Use. No owner may exempt himself from personal liability for assessments duly levied by the Association, nor release the condominium owned by him from the liens and charges hereof, by waiver of the use and enjoyment of the common area, or by abandonment of his Unit. Section 9.06. Additional Provisions Relating To Common Area. The Declarant, its successors and assigns, and all future owners of condominiums, by acceptance of their respective deeds, covenant and agree as follows: (a) The common area shall remain undivided. No owner shall bring any action for partition, except as permitted by Civil Code Section 1359, it being agreed that this restriction is necessary in order to preserve the rights of the owners with respect to the operation and management of the Project. If a condominium is owned by two or more cotenants, nothing contained herein shall prevent a judicial partition between the cotenants. (b) If any portion of the common area encroaches upon the Units, there shall be a valid easement for the encroachment and for the maintenance thereof, so long as it exists. In the event a structure is partially or totally destroyed, and then rebuilt, the owners agree that minor encroachments on parts of the common area due to construction shall be permitted and that valid easements for such encroachments and the maintenance thereof shall exist. (c) Each Unit shall have an easement over adjoining Units and the common area to accommodate minor encroachments resulting from minor engineering errors, minor errors in original construction, or reconstruction, provided that the encroachment does not occur from the willful misconduct of the owner of the encroaching Unit, or his agents. Section 9.07. Utility Easements. Easements on, over and under the Project for. the installation and maintenance of electric, telephone, water, gas and sewer 17 lines and facilities, for cable and antenna facilities, and for drainage facilities as shown on the recorded map of the Project, and as may be hereafter required or needed to service the Project, are hereby reserved by Declarant, together with the right to grant and transfer such easements. Section 9.08. Parking Spaces. Surface parking within the project shall be allocated by resolution of the Board. Until amended by subsequent resolution of the board, the parking spaces contiguous to the front and rear of each Unit ( excepting any fire lanes designated by the City Fire Department) shall be deemed to be for the exclusive use and enjoyment of the Unit to which they are contiguous. Parking areas shall not be used for purposes other than parking, circulation and /or loading. (a) The City is hereby vested with the power to tow away vehicles parked in unauthorized areas of the Project when the City receives a complaint from an Owner or from the Association. The parking areas shall be for the use and enjoyment of the owners, and no more than SEVEN (7) spaces per Unit shall be allotted to the exclusive use and enjoyment of any one Unit. ARTICLE X ARCHITECTURAL CONTROL Section 10.01. Architectural Committee. There shall be an Architectural Committee ( the "Committee ") which shall consist of at least three (3) persons. Section 10.02. Membership . Declarant shall have the right to appoint, remove and replace all members of the Committee until such time as thirteen condominiums have been sold. Thereafter the Board shall have the right to appoint, remove and replace members of the Committee. The term of office of members of the Committee appointed by the Declarant or by the Board shall be three (3) years. In case of the death or resignation of any member of the Committee appointed by the Board, the Board shall appoint a successor to serve for the unexpired term of such member. Members appointed to the Architectural Committee by Declarant need not be members of the Association, but all persons appointed to the Architectural Committee by the Board must be members of the Association . Section 10.03. Duties Of Committee. It shall be the duty of the Committee to consider and act upon any and all proposals or plans submitted to it pursuant to the terms hereof, to insure that any improvements constructed on the Project by anyone other than the Declarant conform to plans approved by the Committee, to adopt architectural rules, and to perform other duties imposed upon it by this Declaration. Notwithstanding anything contained in this Declaration expressly or impliedly to the contrary, no building, fence, wall or other structure or improvement shall be commenced, constructed or maintained upon the Project, nor shall any exterior addition, change or alteration be made in, on or to the Project, or any part thereof, including antennas (but excluding the interior of any Unit) and signs, by anyone other than Declarant, until the plans and specifications showing the nature, height, color scheme, design, shape, dimensions, materials and location of the same shall have been approved in writing by the Committee as is • • to harmony of design, height, color scheme and location in relation to surrounding improvements and topography. To obtain Committee approval, all improvements, including signs, must comply with ordinances of the City of San Luis Obispo. If the Committee fails to approve or disapprove such plans and specifications (or any corrected or amended plans and specifications) within thirty (30) days after submission to it, approval of the submitted plans and specifications will not be required and this Section 10.03 will be deemed to have been complied with if construction of the improvements shown on the plan are completed within six (6) months after submission of the plan to the Committee. The Committee may, on behalf of the Association, exercise all available legal and equitable remedies to prevent or remove any unauthorized and unapproved improvements on the Project. Section 10.04. Meetings. The Committee shall meet from time to time as necessary to perform its duties hereunder. The vote or written consent of a majority of the members, at a meeting or otherwise, shall constitute the act of the Committee unless the unanimous decision of the Committee is required by any other provision of this Declaration. The Committee shall maintain a written record of all actions taken by it at such meetings or otherwise. .Members of the Committee shall not receive any compensation for services rendered. Section 10.05. Architectural Rules. The Committee may, from time to time, and in its sole and absolute discretion, adopt, amend and repeal, by majority vote or written consent, rules and regulations to be known as "architectural rules". The architectural rules shall interpret and implement this Declaration by setting forth the standards and procedures for Committee review and the guidelines for design and placement of improvements. Section 10.06. Waiver. The approval by the Committee of any plans, drawings or specifications for any work done or proposed, or for any other matter requiring the approval of the Committee shall not be deemed to constitute a waiver of any right to withhold approval of any similar plan, drawing, specification or matter subsequently submitted for approval. Section 10.07. Liability. Neither the Committee nor any member thereof shall be liable to the Association, any owner, or to any other party, for any damage, loss or prejudice suffered or claimed on account of (a) the approval or disapproval of any plans, drawings or specifications, or (b) the construction or performance of any work, whether or not pursuant to approved plans, drawings and specifications; provided that with respect to the liability of a member, such member has acted in good faith on the basis of actual knowledge possessed by him. SECTION 10.08. Board Review. All decisions of the Architectural Control Committee are subject to review by the Board of. Directors and may be appealed to the Board. The Committee shall notify the Board of all violations of this Article and of any noncompliance with its rulings or with the plans and specifications submitted to and approved by it, after which the board shall take such actions as it deems necessary in accordance with the provisions of this Declaration. 19 • 0 ARTICLE XI USE RESTRICTIONS In addition to restrictions established by law and by regulations which may be promulgated from time to time by the Board Of Directors, the following restrictions are hereby imposed upon the use of the Project and each condominium therein, and shall be binding upon all owners and occupants: Section 11.01. Condominium Use. The condominiums shall be used as permitted by applicable zoning laws. No portion of the common area shall be used for sales activity. No activity shall be allowed in the common area which interferes with the use and enjoyment of the common area by all owners. _ Section 11.02. Signs. No sign or billboard of any kind shall be displayed to the public view or any portion of any condominium except those approved by the Board or the Architectural Committee, other than signs used by Declarant, its successors or assigns, to advertise the project or condominium during the sales period. All signs shall be in conformance with the governmental codes of the City of San Luis Obispo. Section 11.03. Lawful Use. No noxious, offensive or unlawful activity shall be carried on in or upon any condominium or any part of the Project, nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood, or which shall in any way interfere with the quiet enjoyment of each of the owners of his respective condominium, or which shall in any way increase the rate of insurance on the project or any part thereof. Section 11.04. Temporary Structures, Boats and Vehicle Restrictions. No structure or outbuilding of a temporary character, shed, tent or shack, trailer, camper, mobile home, boat, inoperable vehicles, or similar equipment shall be permitted to remain upon any area within the Project. No noisy or smoky vehicles shall be operated on the property. No storage of vehicles or maintenance or repair of vehicles (except for emergency service) shall be permitted in the parking lot or parking spaces. No parking spaces shall be fenced off. Section 11.05. Advertising Activities. No advertising or promotional activities which may interfere with the quiet use and enjoyment of the Project by other owners and their tenants, such as pennants, lights, and amplified sound or music, shall be permitted without the advance written consent of the Board of Directors or of a committee appointed by the Board and authorized to give such approvals. Section 11.06. Permissible Uses. Only such uses as are permissible under applicable governmental zoning and land use laws and which have obtained all necessary governmental permits shall be permitted within the project. No owner or occupant shall permit or suffer anything to be done or kept in any Unit or on any part of the common area which will (i) increase the rate of insurance on any other Unit or on the common area or common facilities, or (h) cause any improvements to be uninsurable against loss by fire and other perils covered by any insurance policy carried by the Association, or (iii) cause any policy or policies representing such insurance to be canceled or suspended, or cause the 20 insurer issuing the policy to refuse a renewal of the policy. Section 11.07. Alteration Of Common Area. No modification of or alteration or addition to any portion of the common area or common facilities shall be made by any owner or occupant without the written permission of the Board Of Directors. Section 11.08. Antennas And Equipment. Without the prior written permission of the Board. Of Directors, and with such limitations as the Board may consider appropriate, no person shall install, attach or hang on or from any Unit any exterior television, radio or other antenna, or any air conditioning Unit or other equipment which is visible from any portion of the common area or from streets adjacent to the Project. Section 11.09. Animals. No animals, reptiles, rodents., birds, fish, livestock, or poultry shall be kept in or on any subdivision interest or elsewhere within the project. If an unauthorized animal(s) is determined by the Board to be a nuisance within the project, the Board shall, in its sole discretion, determine whether any animal within the project is or constitutes a nuisance. Upon such determination, the owner of said animal or the owner of the Unit in which the animal is kept shall, upon written notice of such determination, permanently remove the offending animal(s) from the project. SECTION 11.10. Trash Removal. All rubbish, trash and garbage shall be regularly removed from the Units and shall not be allowed to accumulate thereon. There shall be no outside storage of trash or trash containers by any owner or tenant thereof except in areas designated for such storage by the Association. Trash, garbage and rubbish shall be kept only in sanitary containers, and all trash containers shall be kept within the enclosed portion(s) of the Unit at all times except the morning of the day on which such trash is regularly collected. SECTION 11.11. Liability for Guests. Each owner shall be liable to the Association for any damage to the common area or to any of the equipment or improvements thereof and to the other owners for any damage to their respective Unit which may be sustained by reason of the negligence or willful misconduct of said owner or of his guests, patrons, invitees, or lessees to the extent that any such damage shall not be covered by insurance. In the case of joint ownership of a Unit, the liability of such owners shall be joint and several. Section 11.12. Combustible or toxic materials. Combustible or toxic materials, whether liquid, gaseous, or solid, including but not limited to, fertilizers, nitro cellulose, pesticides, resins, paint, thinners, gasoline, kerosene, cleaning solvents, and other flammable liquids, acetylene, and oxygen gas, may be stored in any Unit; provided however, that such materials are in amounts and in containers approved for such use by the Fire Department of the City of San Luis Obispo. All Unit owners expressly covenant and agree, prior to the installation, storage, and use of any questionable toxic or combustible materials, that the owner shall have verified with an official of, and shall, at all times, comply with the requirements of the Fire Department of the City of San Luis Obispo or any other such governmental regulatory agency, as may be required or as may be 21 • • amended from time to time. If the Board determines that any such toxic, combustible, or otherwise dangerous materials are improperly stored or utilized, the board may order the immediate emergency removal of all such materials at the sole expense of the Unit owner. ARTICLE XII DAMAGE OR DESTRUCTION Section 12.01. Bids And Insurance Proceeds. As soon as practicable after the damage or destruction of all or any portion of the common area, the Board shall (i) obtain bids from at least two (2) reputable contractors, properly licensed for that type of work by the Department of Consumer Affairs in California, which bids shall set forth in detail the work required to repair, reconstruct and restore the damaged or destroyed portions of the common area to substantially the same condition as they existed prior to such damage and the itemized cost of such work, and (h) determine the amount of all insurance proceeds available to the Association, as trustee or otherwise, for the purpose of effecting such repair, reconstruction and restoration and the amount of proceeds of insurance purchased by the Association which will not be made available to the Association for such purpose by reason of the payment of such proceeds to Mortgagees holding Mortgages encumbering condominiums within the Project. Section 12.02. Sufficient- Insurance Proceeds. In the event that all or a portion of the common area is damaged or destroyed, and the insurance proceeds available to the Association, as trustee or otherwise (when added to any sums actually received by the Association as the result of any special assessment) , are sufficient to effect the total repair, reconstruction and restoration of the damaged or destroyed common area, then the Association shall cause such common area to be repaired, reconstructed and restored to substantially the same condition as the same existed prior to such damage or destruction. Section 12.03. Insurance Proceeds Partially Sufficient. In the event that all or any portion of the common area is damaged or destroyed, and the insurance proceeds available to the Association, as trustee or otherwise (when added to any sums actually received by the Association as the result of any special assessment), are sufficient to cover at least eighty -five percent (85 %) of the cost of such repair, reconstruction and restoration, the Association shall promptly cause the common area to be repaired, reconstructed and restored to substantially the same condition as said common area existed prior to such damage, and the difference between the insurance proceeds available to the Association for such purpose and the actual cost of such repair, reconstruction and restoration shall be specially assessed to each. owner equally; provided that, notwithstanding anything herein contained to the contrary, no repair, reconstruction or restoration provided for in this Section shall be conducted if, within thirty (30) days from the date of such damage or destruction, the Owners otherwise entitled to vote, which Owners hold in the aggregate more than a seventy -five percent (75 %) interest in the common area, determine that such repair, reconstruction and /or restoration shall not take place. In such event the insurance proceeds shall be distributed as set forth in Section 12.04(b) below. 22 • • Section 12.04. Insurance Proceeds Less Than Eighty -Five Percent (85 %) Of The Cost To Restore. If the proceeds of insurance available to the Association, as trustee or otherwise (when added to any sums actually received by the Association as a result of any special assessment), are insufficient to cover at least eighty -five percent (85 %) of the cost of repair, reconstruction and restoration to the damaged or destroyed common area, then the Owners otherwise entitled to vote, which Owners hold in the aggregate seventy -five percent (75 %) interest in the common area, shall determine whether (a) to repair, reconstruct and restore the damaged or destroyed common area and specially assess (without regard to the ten percent limit set forth in Article 7.03) all Owners equally for all additional funds needed for such purpose, or (b) not to repair, reconstruct or restore the damaged common area but to distribute the insurance proceeds available for such reconstruction together with any other sums otherwise available to the Association for such purpose to the Owners (including Declarant with respect to any retained or unsold condominium) , subject to (i) the rights of Mortgagees holding Mortgages encumbering condominiums within the Project, as their interests may appear, and (ii) all unpaid regular and /or special assessments together with any interest charges, late charges and costs attributable thereto. If 75% or more of Owners do not agree to either rebuild as in (a) , above, or not to rebuild as in (b) , above, then the Owners shall be deemed to have agreed to rebuild. If the Owners elect not to rebuild and (b) above is carried out, insurance proceeds shall be distributed by the Association among Owners and their respective mortgagees according to the relative values of the Units at the time of the destruction. The relative values shall be fair market values determined by an independent appraiser selected by Owners who hold in the aggregate seventy -five percent (75 %) or more of the voting power of the Association. Section 12.05. Minor Repair And Reconstruction. The Association shall have the right to repair and reconstruct improvements, without the consent of owners and irrespective of the amount of available insurance proceeds, in all cases of partial destruction when the estimated cost of repair and reconstruction does not require the levy of special assessments in excess of the limit set forth in Article 7..03; namely ten percent (10 %) of the budgeted gross expenses of the Association for that fiscal year. Section 12.06. Reconstruction. If repair, reconstruction and restoration are to take place in accordance with the provisions hereof, the Board shall (i) enter into a written contract with a contractor properly licensed by Consumer Affairs in California and submitting the lowest reasonable bid for such repair, reconstruction and restoration (ii) disburse insurance proceeds available for said work and funds collected by reason of special assessments authorized therefor in appropriate progress payments and (iii) take all steps necessary to ensure the commencement and completion of such repair, reconstruction and restoration in a lawful, workmanlike manner at the earliest possible date. Section 12.07. Certificate Of Intention. After any vote of the Owners, as provided in this Article XII, with respect to whether to repair and restore or not to repair and restore all or any portion of the common area, the Board shall, within thirty (30) days after such vote, cause to be executed, acknowledged and recorded in the Office of the County Recorder for the County of San Luis Obispo, State of California, a certificate setting forth the intention to repair and restore 23 0 • the common area or not to repair and restore the common area. Immediately upon the recordation of such a certificate setting forth the intention of the Owners not to repair and restore the damaged portions of the common area, the right of partition shall be revived. Section 12.08. Revision Of Condominium Documents. In the event it is the determination and vote of Owners, as provided herein, not to repair, reconstruct or restore any damaged portion of the common area, the Board shall, as soon as practicable after the recordation of the certificate of intention described in Section 12.07, cause to be prepared, filed and /or recorded any revised subdivision map, condominium plan or other documents, reports, schedules or exhibits necessary to show the change or altered status of the Project, including, without limitation, the elimination of one or more of the Units, as a result of such damage. The cost (including attorneys' fees) of the preparation, filing and /or recordation of any document, map report, schedule or exhibit referred to herein shall be specially assessed to the Owners equally. Section. 12.09. Interior Repairs. Any reconstruction undertaken pursuant to the foregoing provisions shall cover only the exterior and structural components of the damaged or destroyed Units, and such other damage to such Units as may be covered by insurance maintained by the Association. If a destroyed Unit is so rebuilt, the owner of such Unit shall be obligated to repair and rebuild the damaged portions of the interior of his Unit in a good and workmanlike manner at such owner's expense. ARTICLE XIII GENERAL / MISCELLANEOUS PROVISIONS Section 13.01. Binding Effect. The covenants, conditions and restrictions of this Declaration shall run with the land, and shall inure to the benefit of and be enforceable by the Association, or any owner, their respective legal representatives, heirs, successors and assigns. Section 13.02. Nuisance. Every act or omission whereby any provision of this Declaration is violated in whole or in part is hereby declared to be a nuisance and may be enjoined or abated, whether the relief sought is negative or affirmative action, by Declarant, the Association, or any owner., Section 13.03. Violation Of Law. Any violation of any State, municipal or local law, ordinance or regulation, pertaining to the ownership, occupation or use of the Project or any part thereof is hereby declared to be a violation of this Declaration and subject to any or all of the enforcement procedures set forth herein. Section 13.04. Amendments. Before the close of the first sale of a condominium in the Project to a purchaser other than Declarant, this Declaration may be amended from time to time in any respect or revoked by execution by Declarant and any mortgagee of record of an instrument amending or revoking the Declaration, and recordation of the instrument in the official records of San Luis Obispo County, California. 24 After the close of the first sale of a condominium in the Project to a purchaser other than Declarant, this Declaration may be amended by an affirmative vote of a majority of members including Declarant. Notwithstanding the foregoing, the percentage of the voting power necessary to amend a specific clause or provision shall not be less than the percentage of affirmative votes required for action to be taken under that clause. No amendment to this Declaration shall be valid which would tend to defeat the priority position of a mortgagee with respect to its lien unless consent is obtained in writing from such mortgagee. An amendment shall be effective when (1) the required percentage of owners has given its approval, and (2) that fact has been certified in a writing executed and acknowledged by the officer designated by the Association for that purpose, or if no one has been designated, by the president of I the Association; and (3) the writing has been recorded in San Luis Obispo County. This Declaration may also be amended pursuant to the provisions of California Civil Code Section 1356. No amendment to this Declaration shall be effective without the prior approval of the City Council of the City of San Luis Obispo, which affects any provisions hereof required by the City of San Luis Obispo(sections 6.05 and 9.08(a)). Section 13.05. Condemnation. If all or any part of the Project is taken by any authority under the power of eminent domain, all compensation and damages shall be paid to the Association as trustee for all condominium Owners. If such compensation and damages is not allocated among the Owners by court judgment or by agreement of the affected Owners and the condemning authority, it shall be distributed among the affected Owners according to the relative values of the condominium Units affected by the condemnation. The relative values shall be fair market values determined by an independent appraiser selected by a majority of the affected Owners. Payment of any award shall be subject to (i) the rights of mortgagees holding mortgages encumbering condominium Units within the Project, and (ii) all unpaid regular and special assessments, together with costs, interest charges and late charges. Section 13.06. Rights Of Mortgagee. No breach of the covenants, conditions or restrictions herein contained, nor the enforcement of any lien provisions herein, shall defeat or render invalid the lien of any mortgage made in good faith and for value, but all of such covenants, conditions and restrictions shall be binding upon and effective against any owner whose title is derived through foreclosure, trustee's sale or otherwise. Section 13.07. Construction. The provisions of this Declaration shall be liberally construed to effectuate the purpose of creating a uniform plan for the development of condominiums and for the maintenance of common areas. The article and section headings have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction. Section 13.08. Notices. Any written notice or other documents relating to or required by this Declaration may be delivered either personally or by mail. If other provisions of this Declaration and the Bylaws do not specify a time when 25 notice by mail is deemed to be delivered and received, it shall be deemed to have been delivered and received forty -eight (48) hours after a copy thereof has been deposited in the United States mail, postage prepaid, addressed as follows: (a) If to the Association, at 3641 Sacramento Drive, #16, San Luis Obispo, California 93401. (b) If to the Committee, at 3641 Sacramento Drive, #16, San Luis Obispo, California 93401. (c) If to an owner, to the address of any Unit owned, in whole or in part, by him or to any other address last furnished by an owner to the Association. (d) If to the Declarant, at 3641 Sacramento. Drive, #16, San Luis Obispo, California 93401. Any such address may be changed at any time by the party concerned by delivering a written notice of change of address to the Association. Each owner shall file the correct mailing address of such owner with the Association, and shall promptly notify the Association in writing of any subsequent change of address or name. Section 13.09. Cumulative Remedies. Each remedy provided by this Declaration is cumulative and not exclusive. Section 13.10. Costs And Attorney Fees. In any action or proceeding brought to enforce or interpret any provision of this Declaration, the court may award to any party to such action or proceeding such attorney fees and other costs as it may deem just. Section 13.11. Partial Invalidity. The invalidity or partial invalidity of any provision of this Declaration shall not affect the validity or enforceability of any other provision. Section 13.12. Number, Gender. The singular shall include the plural and the plural the singular unless the context requires the contrary, and the masculine, feminine and neuter shall each include the masculine, feminine or neuter, as the context requires. Section 13.13. Notice of transfer. Upon the lease, sale or other transfer of a Unit, the owner who transfers the Unit shall promptly notify the Association in writing of the name and address of the transferee, the nature of the transfer and the Unit involved, as well as such other information relative to the transfer and the transferee as the Association may reasonably request. An executed copy of the instrument of transfer shall be transmitted to the Association. The Association may charge a fee in connection with such transfer in an amount equal to its reasonable costs to change its records. Section 13.14. Liability. Neither declarant or any of his agents or employees nor the Association or any of its directors, officers or members shall be liable for any failure to provide any service or perform any duty, function or 26 responsibility stated or provided for in this declaration. or the bylaws for any injury to or death of any person or loss or damage to the property of any person on the properties or by any other cause, unless the same is attributable to its o_ r his own willful misconduct or gross negligence. Section 13.15. Joint and several liability. In the event a Unit is owned by more than one person or entity, each such owner shall be jointly and severally liable for the performance of all of the duties, obligations and liabilities created or imposed by this declaration. DECLARANT DATED: September 8, 1997 )kV,.,--- J. J. 1parsons STATE OF C .IFORATIA i � }ss } COUNTY OF On 77 before me, �' . personally appeared J. J. PARSONS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person s'�whose name(zl'is /are subscribed to the within instrument and acknowledged to me that zhe/thsy executed the same in his/her74thetr authorized capacity(ie&), and that by his /herAheir signaturefal'on the instrument the person(lly or the entity upon behalf of which the personal acted, executed the instrument. WITNESS my hand and official seal. 27 CORA G. POLLICK COMM. x`1128725 Notary Public- California San Luis Obispo County My Comm. Exp. Mar. 5, 2001 LENDER /BENEFICIARY LOS PADRES SAVINGS BANK, a California Corporation STATE OF F� baron )ss. }. COUNTY OF F r. On (Y4 Z�- , C�� , before me, �� 0.�K,4 � er ovally appeared WILL_ IAM D. ROSS and sZ� 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. EMS OMPSON COMM. #1080849 kMWR=-C&F0ft SWABARBA cuM 14►Ganm. 6q� Deg 11.19A9 28 CERTIFICATE OF APPROVAL DECLARATION OF COVENANTS, CONDITIONS, & RESTRICTIONS TRACT NO. 1714 3621 Sacramento Drive Date of approval O. 29 I9ej� Approved as to form: Approved as to content: City Attorney CITY OF SAN LUIS OBISPO . - Rita) Community Development Director CIMSANLUIS OBISPO Arnold B. Jona EW OF DOCUMENT