ROSAMOND SKYPARK ASSOCIATION
COVENANTS, CONDITIONS & RESTRICTIONS
THE ROSAMOND SKYPARK
As Revised by vote of the Membership: September 15, 1998 and recorded with the County of Kern on 08/10/2000 as Document #200098045
A First Amendment to this document was approved by vote of the membership 15 June 2003. This amendment modified the following paragraphs and is incorporated therein:
A Second Amendment to this document was approved by vote of the membership 10 September 2008. This amendment modified Sections 1.23 (Lot 10 Definition) and 7.04(a) (Basis of Maximum Common Assessment) and the amended text is incorporated therein. Both the first and second amendments were recorded simultaneously on October 15, 2008 as Doc# 0208163987 in the records of Kern County.
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR ROSAMOND SKYPARK IS BEING RE-RECORDED TO INCORPORATE CHANGES DESIRED BY THE OWNERS OF THE PROPERTIES AND SUPERSEDES, REPLACES AND, BY THE RECORDATION OF THIS DECLARATION, TERMINATES THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE ROSAMOND SKYPARK RECORDED OCTOBER 29, 1985 AS INSTRUMENT NO. 047580 IN BOOK 5810, PAGE 2266 TO 2539 INCLUSIVE OF THE OFFICIAL RECORDS OF KERN COUNTY, CALIFORNIA AND ALL AMENDMENTS THERETO (THE "SUPERSEDED CC&RS" ).
TERMINATION OF THE SUPERSEDED CC&RS AND RECORDATION OF THIS DECLARATION ARE IN COMPLIANCE WITH SECTION 15.05 OF THE SUPERSEDED CC&RS AND CALIFORNIA CIVIL CODE SECTION 1355.5.
TABLE OF CONTENTS
ARTICLE II ANNEXATION OF ADDITIONAL PROPERTIES
ARTICLE III COMMON AREA - PERMITTED USES AND RESTRICTIONS
ARTICLE IV MEMBERSHIP IN ASSOCIATION
ARTICLE V VOTING RIGHTS IN ASSOCIATION
ARTICLE VI JURISDICTION OF ASSOCIATION
ARTICLE VII COVENANT FOR MAINTENANCE ASSESSMENTS
ARTICLE VIII EFFECT OF NONPAYMENT OF ASSESSMENTS:
ARTICLE IX ARCHITECTURAL CONTROL
ARTICLE X MAINTENANCE AND REPAIR OBLIGATIONS
ARTICLE XI USE RESTRICTIONS
ARTICLE XII DAMAGE, DESTRUCTION OR CONDEMNATION OF COMMON AREA
ARTICLE XIII INSURANCE
ARTICLE XIV MORTGAGEE PROTECTION CLAUSE
ARTICLE XV GENERAL PROVISIONS
CERTIFICATION OF OFFICERS
ARTICLES OF INCORPORATION EXHIBIT A
BY-LAWS OF THE ASSOCIATION EXHIBIT B
DESCRIPTION OF THE ANNEXABLE AREA EXHIBIT C
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION is made this 13th Day of October, 1998 by the Rosamond Skypark Association
W I T N E S S E T H:
WHEREAS, the Rosamond Skypark Association is composed of Owners of certain properties and real property interests in the unincorporated area of the County of Kern, State of California, more particularly described as follows:
Lots 1 to 26, inclusive, and Lots 28 to 68, inclusive, of Tract No.4558, as shown on a Subdivision Map recorded on May 31, 1985, in Book 34, Pages 97 to 103, inclusive, of Maps in the Office of the County Recorder of Kern County, California;
WHEREAS, said Owners have deemed it desirable, for the efficient preservation of the values and amenities in the Properties, to operate a corporation under the Nonprofit Mutual Benefit Corporation Law of the State of California to which has been delegated and assigned the powers of owning, maintaining and administering the Common Area for the private use of the Members and their authorized guests, enforcing the covenants, conditions and restrictions and collecting and disbursing the assessments and charges hereinafter created. Such corporation, the Rosamond Skypark Association (the Association), the Members of which shall be the respective Owners of Lots in the First Subdivision and the Owners of Lots in real property annexed pursuant to this Declaration from the Annexable Area, has been formed for the purpose of exercising such functions;
WHEREAS, the Association intends to encourage continued development of the First Subdivision and the Annexable Area pursuant to a general plan for all of the Properties and subject to certain protective covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and charges, all running with the Properties as hereinafter set forth. The Properties will continue to be developed with residential homes, a restaurant and lodge and an airport, together with streets and walkways, taxiways, runways, landscaped park spaces and other amenities; open spaces and other amenities;
WHEREAS, the Owners, acting through the Association hereby declare that all of the Properties shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the following protective covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and charges, all of which are for the purpose of uniformly enhancing and protecting the value, attractiveness and desirability of the Properties, in furtherance of a general plan for the protection, maintenance, subdivision, improvement, sale and lease of the Properties, or any part thereof. The protective covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and charges hereinafter set forth shall run with the Properties, and every part thereof, and shall be binding upon all persons having any right, title or interest in the Properties, or any part thereof, and their heirs, executors, administrators, successors and assigns shall inure to the benefit of the Properties, and every part thereof and any interest therein; shall inure to the benefit of each Owner and their respective heirs, executors, administrators, successors and assigns; and may be enforced by each Owner or the Association.
Unless otherwise expressly provided, the following words and phrases when used herein shall have the meanings hereinafter specified.
Section 1.01. "Annexable Area" shall mean the real property described in Exhibit C attached hereto and incorporated herein by reference, all or any portion of which property may from time to time be made subject to this Declaration pursuant to the provisions of Article II.
Section 1.02. "Architectural Committee" shall mean the architectural and landscape committee created pursuant to Article IX.
Section 1.03. "Articles" shall mean the Articles of Incorporation of the Association filed in the office of the Secretary of State of the State of California, a copy of which is attached hereto as Exhibit A and incorporated herein by reference, as such Articles may be amended from time to time.
Section 1.04. "Assessment, Capital Improvement" shall mean a charge against each Owner and his Lot, including Lot 10 and Lot 11, representing a portion of the cost to the Association for installation or construction of any Improvement on any portion Of the Common Area or Structural Maintenance Areas which the Association may from time to time authorize, pursuant to the provisions of this Declaration.
Section 1.05. "Assessment, Common" shall mean the annual charge against each Owner and his Lot, including Lot 10 and Lot 11, representing a portion of the total, ordinary costs of maintaining, improving, repairing, replacing, managing and operating the Common Area and Structural Maintenance Areas which are to be paid by each Owner to the Association, pursuant to the provisions of this Declaration.
Section 1.06. "Assessment, Reconstruction" shall mean a charge against each Owner and his Lot, including Lot 10 and Lot 11, representing a portion of the cost to the Association for reconstruction of any Improvement on any portion of the Common Area or Structural Maintenance Areas, pursuant to the provisions of this Declaration.
Section 1.07. "Assessment, Special" shall mean a charge against a particular Owner and his Lot, including Lot 10 and Lot 11, directly attributable to that Owner, equal to the cost incurred by the Association for corrective action, pursuant to the provisions of this Declaration.
Section 1.08. "Association" shall mean Rosamond Skypark Association, a corporation formed under the Nonprofit Mutual Benefit Corporation Law of the State of California, and its successors and assigns.
Section 1.09. "Association Maintenance Funds" shall mean the accounts created for receipts and disbursements of the Association, pursuant to Article VII.
Section 1.10. "Beneficiary" shall mean a mortgagee under a mortgage or a beneficiary under a deed of trust, as the case may be, and the successors or assigns of such mortgagee or beneficiary.
Section 1.11. "Board" or "Board of Directors" shall mean the Board of Directors of the Association, elected in accordance with the By-Laws.
Section 1.12. "By-Laws" shall mean the By-Laws of the Association, as adopted by the Board initially in the form of Exhibit B attached hereto and incorporated herein by reference, as such By-Laws may be amended from time to time.
Section 1.13. "Close of Escrow" shall mean the date on which a deed or other such instrument conveying a Lot is recorded.
Section 1.14. "Common Area" shall mean all the real property and Improvements which are at any time owned by the Association, or over which the Association has an easement, for the common use and enjoyment of all of the Owners, as further provided in Article III. The Common Area so owned in fee simple by the includes that certain real property constituting approximately 44.06 acres located in the unincorporated County of Kern, State of California, described more particularly as follows:
Lots 26 (.66 acres), 65 (7.15 acres), 66 (2.71 acres), 67 (17.63 acres) and 68 (15.91 acres) of Tract No. 4558, as shown on a Subdivision Map recorded on May 31, 1985, in Book 34, Pages 97 to 103, inclusive, of Maps in the Office of the County Recorder of Kern County, California.
Section 1.15. "Common Expenses" shall mean the actual and estimated costs of maintenance, management, operation, repair and replacement of the Common Area and the Structural Maintenance Areas, including unpaid Special Assessments, Reconstruction Assessments and Capital Improvement Assessments, and further including those costs not paid by the Owner responsible for payment; the costs of any commonly metered utilities and other commonly metered charges for the Properties; the costs of management and administration of the Association, including, without limitation, compensation paid by the Association to managers, accountants, attorneys and other employees; the costs of all utilities, gardening and other services benefiting the Common Area and Structural Maintenance Areas; the costs of fire, casualty and liability insurance, workmen's compensation insurance, and other insurance covering the Properties; the costs of bonding the members of the management body; taxes paid by the Association; amounts paid by the Association for discharge of any lien or encumbrance levied against the Properties, or any part thereof; all prudent reserves; and the costs of any other item or items designated by the Association for any reason whatsoever in connection with the Properties for the benefit of all of the Owners.
Section 1.16."Declaration" shall mean this instrument as it may be amended from time to time.
Section 1.17."Deed of Trust" shall mean a mortgage or a deed of trust, as the case may be.
Section 1.18."Dwelling Unit" shall mean a building located on a Lot designated and intended for use and occupancy as a single family residence.
Section 1.19."First Subdivision" shall mean the real property described in the first Recital of this Declaration, which property the Original Developer intended to develop as a planned unit subdivision.
Section 1.20. "Grantor(s)" shall mean any Owner of the certain property or interest in property described on page 1 and includes those Members who have assigned certain rights of avigation hereunder.
Section 1.21. "Improvement" shall mean any structure and appurtenance thereto of every type and kind, including, without limitation, buildings, outbuildings, sprinkler pipes and other water fixtures or equipment, drainage facilities, hangars, garages, gazebos, barbecue pits, recreational facilities, streets, driveways, walkways, parking areas, taxiways, runways, fences, screening walls, retaining walls, stairs, decks, landscaping, antennae, lighting, hedges, windbreaks, plantings, planted trees and shrubs, poles, signs and exterior air conditioning and water-softening fixtures or equipment.
Section 1.22. "Lot" shall mean any lot or parcel of land, whether residential, commercial or industrial, including all Residential Lots and Lot 10 and Lot 11, shown upon any recorded subdivision map or recorded parcel map of the Properties, with the exception of the Common Area.
Section 1.23. "Lot l0" shall mean the 2 commercially zoned lots as shown on Parcel Map 7985 recorded on September 4, 1986 in Book 33, Page 141 of Maps in the Office of the County Recorder of Kern County, California; and which were intended to be used for the development thereon of a restaurant on Parcel 2, lodge and swimming pool on Parcel 1, and for visitor aircraft and vehicle parking on both parcels. (text per amendment 2)
Section 1.24. "Lot 11" shall mean an industrially zoned lot which is a part of the First Subdivision and which shall be used for the continued operation thereon of an aircraft Fixed Base Operation (FBO) substantially of the same scope as was performed by Aronson's Air Service, Inc.
Section 1.25. "Lot 27" shall mean a terminal drainage facility or drainfield which is a part of the First Subdivision and which has been conveyed by Original Developer to the County of Kern.
Section 1.26. "Manager" shall mean the Person appointed by the Association hereunder as its agent and delegated certain duties, powers or functions of the Association as further provided in this Declaration and in the By-Laws.
Section 1.27. "Member" shall mean any Person holding a membership in the Association, as provided in this Declaration.
Section 1.28. "Mortgage" shall mean any mortgage or deed of trust or other conveyance of a Lot or other part 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" when used shall be synonymous with the term "Mortgage."
Section 1.29. "Mortgagee; Mortgagor" shall mean a person or entity to whom a Mortgage is made and shall include the beneficiary of a Deed of Trust; "Mortgagor" shall mean a Person who mortgages his Lot to another (i.e., the maker of a Mortgage), and shall include the trustor of a Deed of Trust. The term "Trustor" shall be synonymous with the term "Mortgagor" and the term "Beneficiary" shall be synonymous with the term "Mortgagee."
Section 1.30. "Notice and Hearing" shall mean written notice and a public hearing before a forum appointed by the Board, at which the Owner concerned shall have an opportunity to be heard in person, or by counsel at Owner's expense, in the manner further provided in the By-Laws.
Section 1.30a "Original Developer" shall mean BVS Development Inc., a California corporation, and Woodland American Homes, Inc., a California corporation, who were the original developers and marketers of the Project.
Section 1.31. "Owner" shall mean the Person or Persons holding fee simple interest of record to any Lot which is a part of the Properties, including sellers under executory contracts of sale, but excluding those having such interest merely as security for the performance of an obligation.
Section 1.32. "Person" shall mean a natural individual, a corporation or any other entity with the legal right to hold title to real property.
Section 1.33. "Phase of Development" shall mean a portion of the Properties for which a Final Subdivision Public Report has been issued by the California Department of Real Estate.
Section 1.34. "Project", "Properties" shall mean all of the First Subdivision, together with such portion of the real property described in Exhibit E with respect to which a notice of addition of territory may hereinafter be recorded subjecting it to this Declaration and to the jurisdiction of the Association as provided herein.
Section 1.35. "Record"; "Recorded"; "Filed" or "Recordation" shall mean, with respect to any document, the recordation or filing of such document in the Office of the Kern County Recorder.
Section 1.36. "Residential Lot" shall mean any residential lot or residential parcel of land shown upon any recorded subdivision map or recorded parcel map of the Properties.
Section 1.37. "Restrictions" shall mean this Declaration and the Rules and Regulations of the Association from time to time in effect.
Section 1.38. "Rules and Regulations" shall mean the rules and regulations adopted by the Board pursuant to this Declaration, as they may be amended from time to time.
Section 1.39. "Structural Maintenance Areas" shall mean, as the same may from time to time exist, fences and walls, the taxiways and runways and the park and drainage facilities. Structural Maintenance Areas shall specifically exclude all glass areas.
Section 1.40. "Supplemental Declaration" shall mean any declaration of covenants, conditions and restrictions or similar document supplementing this Declaration which may be recorded pursuant to Article II or Section 15.05.
ANNEXATION OF ADDITIONAL PROPERTIES
Subdivision and Development. In the event that future
parcels are annexed to the Properties, the owners thereof
may, with respect thereto, record one or more Supplemental
Declarations which shall incorporate this Declaration
therein by reference and shall designate the use
classifications within the areas affected and which may
supplement this Declaration with such additional covenants,
conditions, restrictions, land uses and limitations as may
be deemed advisable for that Phase of Development. If said
Section 2.02. Annexation.
(a) The Association may, but shall not be required to, at any time or from time to time, and only upon the vote or written assent of at least two-thirds of the voting power of the Members, add to the property which is covered by this Declaration all or any portion of the Annexable Area then owned by the Association or by others participating in such expansion of the Project by recording a notice of addition of territory with respect to the property to be annexed (the "Added Territory").
(b) Upon the recording of a notice of addition of territory containing the provisions set forth herein, which notice may be contained within the Supplemental Declaration affecting the Added Territory, the covenants, conditions and restrictions contained in this Declaration shall apply to the Added Territory in the same manner as if the Added Territory were originally covered by this Declaration and originally constituted a portion of the Properties, and thereafter the rights, privileges, duties and liabilities of the Owners, lessees and occupants of Lots within the Added Territory shall be the same as in the case of the Lots originally affected by this Declaration. No notice of addition of territory shall have the direct effect of substantially increasing the Common Assessments provided for herein or substantially overburdening the Common Area amenities, unless an appropriate adjustment is made in the manner by which Common Assessments are computed with respect to the Added Territory.
(c) The notice of addition of territory shall contain at least the following provisions:
(i) A reference to this Declaration, which reference shall state the date of recordation and the book and page numbers of the Official Records of Kern County, California where this Declaration is recorded;
(ii) A statement that the provisions of this Declaration shall apply to the Added Territory as set forth herein;
(iii) An exact description of the Added Territory; and
(iv) A description of the Common Area, if any, located in the Added Territory.
Each notice or addition or territory must be signed by at least two officers of the Association, certifying that the vote or written assent of the requisite percentage of Members has been given.
COMMON AREA - PERMITTED USES AND RESTRICTIONS
Section 3.01. Owners' Right of Enjoyment. Every Owner and, to the extent permitted by such Owner, such Owner's family, guests, invitees, customers, lessees and contract purchasers who reside in such Owner's Dwelling Unit or, in the case of Lot 10 and Lot 11, who have the right to enter onto Lot 10 or Lot 11, shall have a right and easement of ingress to and egress from and of enjoyment in, to and over the Common Area which shall be appurtenant to and shall pass with title to every Lot, subject to the following provisions:
(a) The right of the Association to annex additional Common Area thereto pursuant to the terms of Article II.
(b) The right of the Association to reasonably limit the number of guests of Owners using the Common Area and facilities thereon.
(c) The right of the Association acting through the Board to establish uniform rules and regulations pertaining to the use of the Common Area and facilities thereon, including, without limitation, the right and obligation of the Association to enforce all parking restrictions within the Common Area as set forth in Section 3.03.
(d) The right of the Association in accordance with the Articles, the By-Laws and this Declaration, with the vote or written assent of two-thirds of the voting power of Members, to borrow money for the purpose of improving the Common Area and facilities thereon and, subject to the provisions of Article XIII, to mortgage, pledge, deed in trust or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred.
(e) Subject to the provisions of Article XIV, the right of the Association to dedicate, release, alienate or transfer the Common Area to any public agency, authority, utility or other Person for such purposes, with the vote or written assent of and subject to such conditions as may be agreed to by two-thirds of the voting power of Members. A certificate signifying such approval shall be executed and Recorded by at least two officers of the Association. Recordation of such certificate shall constitute prima facie evidence that such approval has been given.
(f) The right of the Board to suspend the voting rights and easements for use and enjoyment of the recreational facilities located on the Common Area of any Member and the Persons deriving such rights and easements from such Member for any period during which the payment of any Common, Special, Capital Improvement or Reconstruction Assessment against such Member and his Lot remains delinquent, and, after Notice and Hearing as provided in the By-Laws, to suspend such rights and easements for the period set forth in the By-Laws for any violation of the Restrictions, it being understood that any suspension for either non-payments of any Assessment or breach of such Restrictions shall not constitute a waiver or discharge of the Member's obligations to pay the Assessment as provided herein.
(g) The right of the Association acting through the Board to reconstruct, replace or refinish any Improvement, or any portion thereof, upon the Common Area in accordance with the original design, finish or standard of construction of such Improvement, but if not in accordance with such original design, finish or standard of construction only with the vote or written assent of two-thirds of the voting power of Members.
(h) The right of the Association to replace destroyed trees or other vegetation and plant trees, shrubs and ground cover upon any portion of the Common Area.
(i) The right of the Association acting through the Board to reasonably restrict access to areas of the Common Area.
(j) The right and reservation of the Association acting through the Board to grant non-exclusive easements for ingress to and egress from all of the Common Area to purchasers of Dwelling Units constructed in the Annexable Area.
In no event shall the provisions of this Article III be interpreted to allow or grant the power to any Owner or the Association to restrict use of the Common Area, including the taxiways and runways, in a manner which shall restrict or hinder the businesses operated on Lot 10 and the airport-related businesses operated on Lot 11, whether such businesses are being used by Owners, visitors or customers of Owners, as long as Lot 10 and Lot 11 are otherwise being operated in compliance with all applicable governmental statutes, rules and regulations.
Section 3.01.1 Easement for Avigation. There is hereby granted by each owner of individual parcels of property located within the property governed by these Covenants, Conditions and Restrictions (the Servient Tenements) to each other owner of property governed by these Covenants, Conditions and Restrictions, including the association created by these Covenants, Conditions and Restrictions of Record (the Dominant Tenements) an avigation easement as follows:
A joint and several, perpetual and assignable, easement and right-of-way, and certain rights appurtenant to said easement for the operation of aircraft as hereinafter set forth, in, on and over said Grantor(s) real property, lying above, in whole or in part, the horizontal limits of an imaginary surface defined by those civil airport imaginary surfaces described in Federal Aviation Regulations, Part 77, whether applicable or not to the Rosamond Skypark Airport, situated in the county of Kern, State of California, hereinafter referred to as the "Airport", which said parcel of real property (the "Airport") is described as follows:
Lots 1 to 26, inclusive, and Lots 28 to 68, inclusive, of Tract No. 4558, as shown on a Subdivision Map recorded on May 31, 1985, in Book 34, Pages 97 to 103, inclusive, of Maps in the Office of the County Recorder of Kern County, California.
It is the intent of this easement that the easement be for the benefit of the other owners of real property governed by these Covenants, Conditions and Restrictions, and for the benefit of the "Airport" Operator, and each of their successors and assigns, invitees, and licensees, to use the airspace above the Dominant and Servient Tenements for any and all types of aircraft to navigate to, from and about the Dominant and Servient Tenements, and to operate Soaring (Glider) Aircraft within the Dominant and Servient Tenements, all in accordance with appropriate Federal Aviation Regulations.
It is agreed by Grantor(s) that he/they shall not hereafter erect, enlarge or grow, or permit the erection, enlargement or growth of, or permit or suffer to remain, any building, structure, or other object, or any tree, bush, shrub or other vegetation, within or into the airspace above either the Dominant or Servient Tenements above said imaginary surfaces overlying said real property.
It is further agreed by Grantor(s) that the easement and rights hereby granted to the other owners of real property governed by these Covenants, Conditions and Restrictions and the Airport Operator are for the purpose of insuring that the airspace above the said imaginary surfaces shall remain free and clear of any building, structure or other object, and of any tree, bush, shrub or other vegetation, which could constitute an obstruction or hazard to the flight of aircraft of any kind within the airspace used for landing at, taking off from and/or operating in the vicinity of said "Airport", and shall be usable for aircraft operations, and that, to the extent that aircraft using the Dominant or Servient Tenements generate noise or other effects of flight into and upon the Servient Tenement, the right to do so is granted to the other owners of real property, including the "Airport" Operator, their successors and assigns, invitees and licensees, subject to the Covenants, Conditions and Restrictions. These rights shall include, but not be limited to, the following:
1. The right of flight or unobstructed passage of aircraft of any kind, for the use and benefit of the public and the other owners of real property subject to the Covenants, Conditions and Restrictions, above said imaginary surface, as may be inherent in the navigation or flight of aircraft (now known or hereafter developed or known), using said airspace for landing at, taking off from, or operating from, to, at, or over, or in the proximity of the Airport, together with the right to cause in or about such airspace and also within or on all land and airspace from the surface to the bottom line of the Servient Tenement, such noise, light, electromagnetic emissions, radio transmissions, vibrations, fumes, dust, fuel particles and all other effects as may be inherent in the navigation or flight of aircraft now or hereafter used or known, using said airspace for landing at, taking off from, or operating from, to, at, on or over said Airport.
2. The right of the association which is created by these Covenants, Conditions and Restrictions of Record or the "Airport" Operator to expand the use of the Airport and appurtenant airspace, either in type of aircraft, frequency of operation, time of operation, noise of operations, or in any other manner or amount deemed appropriate by the other, owners of real property acting as the Association subject to the Covenants, Conditions and Restrictions, and the owner of the Servient Tenement does hereby agree to accept any and all effects of such expansion as a right of the holders of the Dominant Tenement as set forth herein.
3. The right of flight for the unobstructed passages of aircraft and gliders, for the use and benefit of the public and the other owners of real property and the "Airport" Operator, their heirs and assigns, and their invitees or licensees, subject to the Covenants, Conditions and Restrictions in the airspace described as otherwise permitted herein, together with the right to cause, in or about the airspace between the surface and the top of navigable airspace such noise, light, electromagnetic emissions, radio transmissions, vibrations, fumes, dust, fuel particles and all other effects as may be inherent in the navigation or flight of aircraft (now known or hereafter developed or known) which may use said airspace for landing at, taking off from, or operating from, to, at, on, or over said Airport, per FAA regulations.
4. The right of the holders of the Dominant Tenement to conduct, on any ground portion of the Dominant Tenement, such ground operations as shall be necessary to the operation of aircraft on or about the Dominant Tenement, including, but not limited to, taxiing aircraft, repair and maintenance of aircraft and their various systems, including engines, aircraft engine runups, glider towing operations, glider ground staging operations, air shows and "fly-ins" and the right, in the conduct of any such operations, to cause, anywhere, at any time on the surface of the Dominant or Servient Tenements, to the top of navigable airspace such noise, light, electromagnetic emissions, radio transmissions, vibrations, fumes, dust, fuel particles and all other effects as may be inherent in the operation of an airport or "skypark" residential development.
5. Acts in violation of Federal Aviation Regulations by individual users of the easement while within the Dominant or Servient Tenement shall not be considered acts allowing the holder of the Servient Tenement to terminate the easement granted hereby.
The easement granted herein and all rights appertaining thereto are granted unto the other owners of any parcel of the real property governed by these Covenants, Conditions, and Restrictions, and the "Airport" Operator, its successors and assigns, as owners of the Dominant Tenement, which is legally described as Lots 1 to 68, inclusive, of Tract 4558 as shown on subdivision map recorded on May 31, 1985 in Book 34, pages 97-103, inclusive of Maps in the Office of the County Recorder of Kern County, California, until said Airport shall be abandoned and cease to be used for airport purposes for a period of at least five years, at which time it shall automatically revert to Grantor(s).
It is understood and agreed by Grantor(s) that this easement, and the covenants and restrictions contained herein, shall run with the land described above and shall be binding upon the heirs, successors and assigns of Grantor(s). For purposes of this easement, the above Grantor's real property shall be the Servient Tenement and the Airport and all other real property governed by these Covenants, Conditions and Restrictions of Record, and any hereafter acquired property used by Airport shall be the Dominant Tenement.
Section 3.02. Delegation of Use. Any Owner may delegate, in accordance with the By-Laws, his rights of enjoyment of the Common Area to such Owner's lessees or contract purchasers who reside in such Owner's Dwelling Unit, subject to reasonable regulation by the Board; provided, however, that such Member shall not be entitled to the use and enjoyment of the Common Area during the term of such delegation.
Section 3.03. Easements for Parking. Temporary guest or recreational parking shall be permitted within the Common Area only within spaces and areas clearly marked for this purpose. The Association acting through the Board is hereby empowered to establish "parking," "guest parking" and "no parking" areas within the Common Area in accordance with Section 22658 of the California Vehicle Code, or any similar statute hereafter enacted, as well as to enforce these parking limitations by all means lawful for such enforcement on county streets, including the removal of any violating vehicles by those so empowered.
Section 3.04. Easements for Vehicular Traffic. In addition to the general easements for use of the Common Area reserved herein, there shall be nonexclusive appurtenant easements for vehicular traffic over all streets within the Properties, subject to the parking provisions set forth in Section 3.03. The Association reserves the right to grant similar easements to purchasers of Dwelling Units constructed in the Annexable Area.
Section 3.05. Easements for County Public Service Use. In addition to the general easements for use of the Common Area reserved herein, there shall be easements for public services of the County of Kern, including, without limitation, the right of the police to enter upon any part of the Common Area for the purpose of enforcing the law and the right of the fire department to enter upon any part of the Properties for the purpose of fire protection.
Section 3.06. Waiver of Use. No Owner may exempt himself from personal liability for assessments duly levied by the Association, or release the Lot or other property 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 Lot or any other property in the Properties.
Section 3.07. Title to the Common Area. The Association shall hold in fee simple title to the Common Area, free and clear of any and all encumbrances and liens, but subject to reservations, easements, covenants, and conditions then of record, including those set forth in this Declaration.
Section 3.08. 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 each Lot. If any taxes or assessments may, in the opinion of the Association, nevertheless be a lien on the Common Area, or any part thereof, such taxes or assessments may be paid by the Association and each Owner shall be obligated to pay or to reimburse the Association for the taxes and assessments assessed by the County Assessor or other taxing authority against the Common Area and attributable to his Lot and interest in the Common Area.
MEMBERSHIP IN ASSOCIATION
Section 4.01. Organization. The Association is organized as a California corporation under the California Nonprofit Mutual Benefit Corporation Law. The Association is charged with the duties and vested with the powers prescribed by law and set forth in the Articles, the By-Laws and this Declaration. Neither the Articles nor the By-Laws shall, for any reason, be amended or otherwise changed so as to be inconsistent with this Declaration. In the event that there should exist any ambiguity in any provision of the Articles or the By-Laws, then such provision shall be construed, to the extent possible, so that such provision shall be consistent with the provisions of this Declaration.
Section 4.02. Membership. Every Owner of a Lot shall be a Member of the Association. Memberships in the Association shall not be assignable, except to the Person to which title to the Lot has been transferred, and every membership in the Association shall be appurtenant to and may not be separated from the fee ownership of such Lot. Ownership of a Lot shall be the sole qualification for membership in the Association.
Section 4.03. Transfer. The Association membership held by any Owner of a Lot shall not be transferred, pledged or alienated in any way, except upon the sale or encumbrance of such Owner's Lot, and then only to the purchaser or Mortgagee of such Lot. Any attempt to make a prohibited transfer is void and shall not be reflected upon the books and records of the Association. A Member who has sold his Lot to a contract purchaser under an agreement to purchase shall be entitled to delegate to such contract purchaser his membership rights in the Association. Such delegation shall be in writing and shall be delivered to the Board before such contract purchaser may vote. However, the contract seller shall remain liable for all charges and assessments attributable to his Lot until fee title to the Lot sold is transferred. In the event the Owner of any Lot should fail or refuse to transfer the membership registered in his name to the purchaser of such Lot upon transfer of fee title thereto, the Board shall have the right to record the transfer upon the books of the Association.
VOTING RIGHTS IN ASSOCIATION
Section 5.01. Voting Membership. The Association shall have one class of voting membership as follows:
(a) Members shall be all Owners. Members shall be entitled to one vote for each Lot owned and subject to assessment. When more than one Person holds an interest in any Lot, all such Persons shall be Members. The vote for such Lot shall be exercised in accordance with Section 5.02, and in no event shall more than one vote be cast with respect to any Lot.
(b) All voting rights shall be subject to the restrictions and limitations provided in this Declaration, the Articles of Incorporation and the By-Laws.
Section 5.02. Voting Distribution. Members shall be entitled to one vote for each Lot in which they hold the interest required for membership. When more than one Person holds such interest or interests in any Lot, all such co-owners shall be Members and may attend any meetings of the Association, but only one such co-owner shall be entitled to exercise the vote to which the Lot is entitled. Such co-owners may from time to time all designate in writing one of their number to vote. Fractional votes shall not be allowed, and the vote for each Lot shall be exercised, if at all, as a unit. Where no voting co-owner is designated or if such designation has been revoked, the vote for such lot shall be exercised as the majority of the co-owners of the Lot mutually agree. Unless the Board receives a written objection from a co-owner, it shall be presumed that the corresponding voting co-owner is acting with the consent of his co-owners. No vote shall be cast for any Lot where the majority of the co-owners present in person or by proxy and representing such Lot cannot agree to said vote or other action. The non-voting co-owner or co-owners shall be jointly and severally responsible for all of the obligations imposed upon the jointly owned Lot and shall be entitled to all other benefits of ownership. All agreements and determinations lawfully made by the Association in accordance with the voting percentages established herein or in the By-Laws shall be deemed to be binding on all Owners and their successors and assigns. Said voting rights shall be subject to all of the Restrictions and the further limitations provided in the Articles and the By-Laws.
JURISDICTION OF ASSOCIATION
Section 6.01 Powers and Duties. Subject to any provisions of the By-Laws to the contrary, the Association acting through the Board shall have the following powers and duties:
(a) Assessments. The power and duty to levy assessments on the Owners of Lots within the Properties and to enforce payment of such assessments in accordance with the Provisions of Article VIII.
(b) Repair and Maintenance of Property. The power and duty to paint, plant, maintain and repair, in a neat and attractive condition and in accordance with standards adopted by the Board, the Common Area and all Improvements thereon, the Structural Maintenance Areas and dedicated utility, drainage and road easements, and to pay for utilities, gardening service and other necessary utility or other services for the Common Area. Notwithstanding the foregoing, and except as otherwise provided in Sections 7.02, 7.09 and 10.02 below, the Association shall have no responsibility to provide the services referred to in this Section 6.01(b) with respect to any Improvement which is accepted for maintenance by any state, local, or municipal governmental agency or entity. Such responsibility shall be that of the Owner concerned, as provided in this Declaration, or the responsibility of the applicable agency or entity.
(c) Utility Service. The power and duty to obtain for the benefit of the Common Area, all commonly metered water, gas and electric services, and the right within the discretion of the Board to provide for all refuse collection and cable or master television service.
(d) Easements and Rights-of-Way. The power but not the duty to grant and convey to any Person, easements, rights-of-way, parcels or strips of land in, on, over or under any portion of the Common Area for the purpose of constructing, erecting, operating or maintaining thereon, therein and thereunder
(i) roads, streets, walkways, driveways, taxiways, runways, parkways, and park areas, (ii) overhead or underground lines, cables, wires, conduits, or other devices for the transmission of electricity for lighting, heating, power, sewer, television, telephone and other similar purposes, (iii) sprinkling systems, water, heating and gas lines or pipes and (iv) any similar public or quasi-public Improvements or facilities.
(e) Manager. The power but not the duty to employ or contract with a professional Manager to perform all or any part of the duties and responsibilities of the Association, and the power to delegate its powers to committees, officers and employees. Any such management agreement, or any agreement providing for services to the Association, shall be for a term not in excess of one year, shall be subject to cancellation by the Association for cause at any time upon not less than thirty days' written notice, and without cause, without penalty or payment of a termination fee, at any time upon not less than ninety days' written notice.
(f) Rights of Entry and Enforcement. The power but not the duty, after Notice and Hearing and without being liable to any Owner, to enter upon any Lot and Dwelling Unit for the purpose of enforcing by peaceful means the provisions of this Declaration or for the purpose of maintaining or repairing any such area if for any reason whatsoever the Owner thereof fails to maintain or repair any such area as required by the Restrictions. The cost of any such maintenance and repair which is the responsibility of the Owner shall be a Special Assessment and shall create a lien enforceable in the same manner as other assessments as set forth in this Declaration. The responsible Owner shall pay promptly all amounts due for such work and the costs and expenses of collection. Unless there exists an emergency, there shall be no entry into a Dwelling Unit without the prior consent of the Owner thereof. The Association may also commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of the Restrictions and to enforce, by mandatory injunctions or otherwise, all of the provisions of the Restrictions. In the event of any action brought by the Association, the prevailing party shall be entitled to costs and reasonable attorney's fees to be fixed by the Court, in accordance with California Civil Code Sections 1350 et seq.
(g) Other Services. The power and duty to maintain the integrity of the Common Area and Structural Maintenance Areas and to provide such other services, such as fire prevention services and security services, as may be necessary or proper to carry out the Association's obligations and business under the terms of this Declaration in order to enhance the enjoyment by the Members of the Common Area or to facilitate the use by all Members of the Common Area.
(h) Legal and Accounting Services. The power but not the duty, if deemed appropriate by the Board, to retain and pay for legal and accounting services necessary or proper for the operation of the Common Area, enforcement of the Restrictions or in performing any of the other duties or rights of the Association.
(i) Construction on Common Area. The power but not the duty, by action of the Board, to construct new Improvements or additions to the Common Area or to demolish existing Improvements, in accordance with the provisions of this Declaration.
(j) Audit. For any fiscal year in which the gross income to the Association exceeds $75,000, the duty to obtain an independent audit of the accounts of the Association performed by an independent public accountant and to deliver a copy of such audit to each Owner in the manner provided in the By-Laws. Any Owner, accompanied by an accountant, may at any time and at his own expense cause an audit or inspection to be made of the books and records of the Association; provided, however, that such audit or inspection shall be made during normal working hours and without unnecessary interference with the operations of the Manager or the Association.
In no event shall the provisions of this Article VI be interpreted to allow or grant the power to any Owner or the Association to maintain and repair the Common Area, including the taxiways and runways, or fail to do so, or take any other action which will unreasonably restrict or hinder the businesses operated on Lot 10 and the airport-related businesses operated on Lot 11, whether such businesses are being used by Owners, visitors or customers of Owners, as long as Lot 10 and Lot 11 are otherwise being operated in compliance with all applicable governmental statutes, rules and regulations.
Section 6.02. Rules and Regulations. The Board may adopt such rules and regulations, as it deems proper, for the use and occupancy of the Common Area. The Rules and Regulations shall be subject to change from time to time by the Board. A copy of the Rules and Regulations, as they may from time to time be adopted, amended or repealed, shall be posted in a conspicuous place in the Common Area and may be mailed or otherwise delivered to each Owner. Upon such mailing, delivery or posting, the Rules and Regulations shall have the same force and effect as if they were set forth and were a part of the Restrictions; provided, however, that the Rules and Regulations shall be enforceable only to the extent that they are consistent with this Declaration, the Articles and the By-Laws, and the Rules and Regulations may not be used to amend any of said documents. In addition, if any Owner has actual knowledge of any given Rules and regulations, such Rules and Regulations shall be enforceable against such Owner as though notice of such rules and regulations had been given pursuant to this Section 6.02.
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 7.01. Creation of the Lien and Personal Obligation of Assessments. Subject to the provisions of Section 7.07, each Owner of any Lot within the Properties, including Lot 10 and Lot 11, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree 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. Such assessments, together with interest, costs and reasonable attorneys' fees for the collection thereof, shall be a charge on the Lot and shall be a continuing lien upon the Lot against which such assessment is made. Each such assessment, together with interest, costs and reasonable attorneys' fees for the collection thereof, shall also be the personal obligation of the Person who was the Owner of such property at the time when such Assessment fell due. Subject to the provisions of this Declaration protecting first Mortgagees, the personal obligation for the delinquent assessments shall pass to the successors-in-title of such Owner. The Board of Directors shall establish no fewer than two separate Association Maintenance Funds into which shall be deposited all moneys paid to the Association and from which disbursements shall be made, as provided herein, in the performance of functions by the Association under the provisions of this Declaration. Each of the Association Maintenance Funds shall include (i) an operating fund for current expenses of the Association and (ii) a common area reserve fund for replacements, painting and repairs which would reasonably be expected to recur on an ongoing basis. The Board of Directors shall not commingle any amounts deposited into any of the Association Maintenance Funds with one another.
Section 7.02. Purpose of Common Assessments. The assessments levied by the Association shall be used exclusively to promote the common health, safety, benefit, recreation and welfare of the Owners and for the improvement and maintenance of the Common Area and the Structural Maintenance Areas, as provided herein. However, disbursements from the common area reserve fund shall be made by the Board of Directors only for the specific purposes specified in this Article VII. Disbursements from the operating fund shall be made by the Board of Directors for such purposes as are necessary for the discharge of its responsibilities herein for the common benefit of all of the Owners, other than those purpose for which disbursements from the common area reserve fund are to be used. Nothing in this Declaration shall be construed in such a way as to permit the Association to use any assessments to abate any nuisance or annoyance emanating from outside the boundaries of the Properties. Nothing contained herein shall limit, preclude or impair the establishment of additional Association Maintenance Funds by the Association, so long as the amounts deposited into any such fund are earmarked for specified purposes authorized by this Declaration. Common Assessments shall include, and the Association shall acquire and pay for out of the applicable funds derived from said annual Common Assessments, the following, which shall be shared equally by all Owners:
(a) Water, electrical, lighting and other necessary utility services for the Common Area and electrical services for street lighting.
(b) Maintenance and repair of private streets, walkways, taxiways, runways and parking areas lying within the Common Area.
(c) Painting, exterior maintenance and minor repair and replacement, as necessary, of the Structural Maintenance Areas.
(d) Landscape planting and maintenance by the Association of all landscaped and planted areas within the Common Area, Structural Maintenance Areas and dedicated utility, drainage and road easements, including irrigation and lighting.
(e) Fire and casualty insurance with extended coverage, as provided herein, covering the full insurable replacement cost of the Common Area facilities and, if approved by the Board, the Dwelling Units (provided that the cost of any insurance covering the Dwelling Units shall be included in Common Assessments levied only against Owners of Residential Lots).
(f) Liability insurance, as provided herein, insuring the Association against any liability to the public or to any Owner, their invitees or lessees incident to their occupation and use of the Common Area and the Structural Maintenance Areas, with limits of liability to be set by the Board, such limits and coverage to be reviewed at least annually by the Board and increased or decreased in its discretion.
(g) Such errors and omissions and directors and officers liability insurance as deemed necessary by the Board, pursuant to Article XIII.
(h) Worker's compensation insurance to the extent necessary to comply with any applicable laws, medical payments insurance, liquor liability insurance and any other insurance as deemed necessary by the Board, pursuant to Article XIII.
(i) Standard fidelity bonds covering all members of the Board and other employees of the Association as and in an amount as deemed necessary by the Board, pursuant to Article XIII.
(j) Painting, maintenance, repair and replacement of all buildings, equipment and landscaping in, on and of the Common Area, as deemed necessary by the Board.
(k) Any other material, supplies, furniture, labor, services, maintenance, repairs, structural alterations, insurance, taxes or assessments which the Association is required to secure or pay for pursuant to the terms of this Declaration, by law or which in the opinion of the Board shall be necessary or proper for the operation and maintenance of the Common Area and Structural Maintenance Areas or for the enforcement of the Restrictions.
Section 7.03. Damage to Common Area by Owners. The foregoing maintenance, repairs or replacements within the Common Area or Structural Maintenance Areas arising out of or caused by the willful or negligent act of the Owner, his family, lessees, guests or invitees shall be done at said Owner's expense, or, after Notice and Hearing, a Special Assessment therefor shall be made by the Board against the Owner and his Lot.
Section 7.04. Basis of Maximum Common Assessment.
(a) As of the 2008 Fiscal Year, the maximum annual Common Assessment under this Article VII for Residential Lots shall be $54 per month, the maximum annual Common Assessment under this Article VII for Lot 10 shall be $400 per month for Parcel 1 and $400 per month for Parcel 2, and the maximum annual Common Assessment under this Article VII for Lot 11 shall be $800 per month. (Para. (a) text per amendment 2)
(b) The maximum annual Common Assessment may be increased by the Board, above the maximum annual Common Assessment for the previous year, without a vote of the Members, as provided in subparagraph (c) below, in an amount no more than twenty percent.
(c) The maximum annual common Assessment may be increased above twenty percent by the vote or written assent of a majority of the voting power of Members.
(d) The Board of Directors may fix an annual Common Assessment in an amount not in excess of the maximum.
Section 7.05. Capital Improvement and Reconstruction Assessments. In addition to the Common Assessments authorized above, the Board may levy, in the manner provided in Section 7.08(a), in any assessment year, a Capital Improvement Assessment or Reconstruction 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 or other such addition upon the Common Area or Structural Maintenance Areas, including fixtures and personal property related thereto; provided, however, that whenever the aggregate Capital Improvement Assessments and Reconstruction Assessments in any fiscal year exceed five percent of the budgeted gross expenses of the Association for that fiscal year, such excess shall require the vote or written assent of a majority of the voting power of Members. The amount of the Capital Improvement Assessment or Reconstruction Assessment, as the case may be, for Lot 10 and Lot 11 shall be fixed in the following manner: The amount of the Capital Improvement Assessment or Reconstruction Assessment, as the case may be, for a Residential Lot shall be multiplied by a fraction, the numerator of which shall be the then-current monthly Common Assessment for Lot 10 or Lot 11, as the case may be, and the denominator of which shall be the then-current base monthly Common Assessment for a Residential Lot. The resulting quotient shall be the Capital Improvement Assessment or Reconstruction Assessment, as the case may be, for Lot 10 or Lot 11, as the case may be. An example of how to calculate the amount of the Capital Improvement Assessment for Lot 10 and Lot 11 is as follows:
(a) Assume that the amount of the Capital Improvement Assessment for a Residential Lot is $45.42.
(b) Assume that the amount of the then-current monthly Common Assessment for Lot 10 and Lot 11 is $800.00.
(c) Assume that the amount of the then-current monthly Common Assessment for a Residential Lot is $50.00.
(d) The Capital Improvement Assessment for Lot 10 and Lot 11 equals:
($45.42) X ($800.00)
The method of calculating the amount of the Reconstruction Assessment for Lot 10 and Lot 11 is identical, i.e., assuming that the amount of the Reconstruction Assessment for a Residential Lot is $55.57, the Reconstruction Assessment for Lot 10 and Lot 11 equals:
($55.57) X ($800.00)
Section 7.06. Notice and Quorum for any Action Authorized Under Sections 7.04 and 7.05. Written notice of any meeting called for the purpose of taking any action by the Members authorized under Sections 7.04 and 7.05 shall be sent to all Members not less than ten days, nor more than sixty days, in advance of the meeting.
Section 7.07. Uniform Rate of Assessment for Residential Lots. Common Assessments, Capital Improvement Assessments and Reconstruction Assessments provided for in this Article VII must be fixed at a uniform rate for all Residential Lots within the Properties, and according to the ratio of the Residential Lot to the total number of Residential Lots; provided, however, that the Association may, subject to the provisions of Section 7.03, levy Special Assessments against selected Owners who have caused the Association to incur maintenance, repair or replacement expenses due to willful or negligent acts of said Owners, his family, lessees, guests or invitees within the Common Area or Structural Maintenance Areas or to incur costs to bring an Owner and his Lot into compliance with the provisions of this Declaration, the Articles or the By-Laws, but any such Special Assessments shall be subject to the provisions of Section 2792.26(c) of Title 10 of the California Administrative Code, which provides that such Special Assessments may not become a lien against an Owner's Lot enforceable by a sale of the Lot in accordance with the provisions of Sections 2924, 2924(b) and 2924(c) of the California Civil Code. All installments of Common Assessments shall be collected in advance on a regular basis by the Board, at such frequency as the Board shall determine from time to time.
Section 7.08. Changes In Common Assessment.
(a) The Board shall fix the amount of the Common Assessment against each Lot at least thirty days in advance of each Common Assessment period. Written notice of any change in the amount of any annual Common Assessment shall be sent to every Owner subject thereof, not less than thirty days prior to the effective date of such change. The due dates shall be established by the Board of Directors. The Association shall, upon demand and for a reasonable charge, furnish a certificate signed by an officer or agent of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments against a Lot is binding upon the Association as of the date of its issuance.
(b) The Board of Directors shall cause to be prepared an annual report containing a balance sheet, an income statement reflecting income and expenditures of the Association for each fiscal year, including deposits in and withdrawals from the common area reserve fund and the operating fund, a statement of changes in financial position and a statement of the place where the names and addresses of the current Members are located. The Board shall cause to be distributed a copy of each such annual report to each Member and to each first Mortgagee who has filed a written request for copies of the same with the Board, in the manner provided in the By-Laws. The Board may cause financial statements to be distributed to all Members in such greater frequency and at such further intervals as it deems appropriate. At least sixty days prior to the beginning of each fiscal year, the Board shall prepare and distribute to all members a written, itemized estimate (budget) of the income and Common Expenses of the Association during such year in performing its functions under this declaration, including a reasonable provision for contingencies and deposits into the common area reserve fund, less any expected income and accounting for any surplus from the prior year's respective Association Maintenance Funds.
(c) Each annual Common Assessment shall constitute an aggregate of separate assessments for each of the Association Maintenance Funds, reflecting an itemization of the amounts assessed and attributable to prospective deposits into the common area reserve fund, the operating fund and any other Association Maintenance Fund established by the Association. If the estimated sums prove inadequate for any reason, including nonpayment of any Owner's annual Common Assessment, the Board may, at any time, levy supplemental Common Assessments, subject to the provisions of Section 7.04, for any of the Association Maintenance Funds which shall be assessed uniformly against the Owner of each Lot in the Properties.
(d) Each annual Common Assessment may be paid by the Owner to the Association in one check or in separate checks, as payments attributable to deposits into specified Association Maintenance Funds. In the event that any installment of a Common Assessment payment is less than the amount assessed and the payment does not specify the Association Maintenance Fund or Funds into which it should be deposited, the receipt by the Association from that owner shall be credited in order of priority first to the operating fund, until that portion of the Common Assessment has been satisfied, and second to the common area reserve fund.
(e) At the end of any fiscal year of the Association, the Members, by vote or written assent of a majority of the voting power of Members, may determine that all excess funds remaining in the operating fund, over and above the amounts used for the operation of the Properties, may be returned to the Members proportionately or may be retained by the Association and used to reduce the following year's Common Assessments. Upon dissolution of the Association incident to the abandonment or termination of the Properties, any amounts remaining in any of the funds shall be distributed proportionately to or for the benefit of the members as provided in the Articles and this Declaration.
Section 7.09. Exempt Property. The following property subject to this declaration shall be exempt from the assessments herein:
(a) All Properties dedicated to and accepted by a local public authority;
(b) The Common Area which is owned in fee simple from the Association.
EFFECT OF NONPAYMENT OF ASSESSMENTS:
REMEDIES OF THE ASSOCIATION.
Section 8.01. Effect of Nonpayment of Assessments: Remedies of the Association. Any installment of a Common Assessment, Capital Improvement Assessment, Special Assessment or Reconstruction Assessment not paid within thirty days after the due date shall bear interest from the due date until the date paid at the rate of ten percent per annum. If any such installment on an assessment is not paid within thirty days after it is due, the Owner responsible therefor may be required further by the Board to pay a late charge of $5.00 or five percent of the amount of the delinquent installment, whichever is greater. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the Lot; provided, however, that the levying of Special Assessments shall be subject to the provisions of Section 7.03; provided further, however, that no monetary penalty imposed as provided in Article VII or this Article VIII shall be treated in this Declaration, the Articles or the By-Laws as a lien against an Owner's Lot enforceable by a sale of the lot in accordance with the provisions of Section 2924, 2924(b) and 2924(c) of the California Civil Code. No monetary penalties, other than as provided in Article VII or this Article VIII, shall be imposed upon an Owner for unpaid assessments. No Owner may waive or otherwise escape liability for the assessments provided for herein by nonuse of the Common Area or abandonment of his Lot. If any installment of a Common Assessment is not paid within thirty days after its due date, the Board may mail an acceleration notice to the Owner and to each first Mortgagee of a Lot which has requested a copy of the notice. The notice shall specify (i) the fact that the installment is delinquent, (ii) the action required to cure the default, (iii) a date, not less than thirty days from the date the notice is mailed to the Owner, by which such default must be cured and (iv) that failure to cure the default on or before the date specified in the notice may result in acceleration of the balance of the installments of the Common Assessment for the then current fiscal year and sale of the Lot. The notice shall further inform the Owner of his right to cure after acceleration and to bring a court action to assert the non-existence o£ a default or any other defense of the Owner to acceleration and sale. If the delinquent installments of Common Assessments and any charges thereon are not paid in full on or before the date specified in the notice, the Board at its option may declare all of the unpaid balance of the annual Common Assessment to be immediately due and payable without further demand and may enforce the collection of the full Common Assessment and all charges thereon in any manner authorized by law and this Declaration.
Section 8.02. Notice of Assessment. No action shall be brought to enforce any assessment lien herein, unless at least thirty days has expired following the date a notice of assessment is deposited in the United States mail, certified or registered, postage prepaid, to the Owner of the Lot, and a copy thereof has been recorded by the Association in the office of the County Recorder of Kern County. The notice of assessment must recite a good and sufficient legal description of any such Lot, the record Owner or reputed Owner thereof, the amount claimed (which may at the Association's option include interest on the unpaid assessment at ten percent plus reasonable attorneys' fees and expenses of collection in connection with the debt secured by said lien), and the name and address of the claimant. The notice of assessment shall be signed and acknowledged by an officer of the Association, and said lien shall be prior to any declaration of homestead recorded after the date on which this Declaration is recorded. The lien shall continue until fully paid or otherwise satisfied.
Section 8.03. Foreclosure Sale. Any sale provided for above may be conducted by the Board, its attorneys or other persons authorized by the Board in accordance with the provisions of sections 2924, 2924a, 2924b, 2924c and 2924f of the Civil Code of the State of California, or in accordance with any similar statute hereafter enacted applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any manner permitted by law. The Association, through its duly authorized agents, shall have the power to bid on the Lot at the foreclosure sale, and to acquire and hold, lease, mortgage and convey the same.
Section 8.04. Curing of Default. Upon the timely curing of any default for which a notice of assessment was filed by the Association, the officers thereof shall record an appropriate release of lien upon payment by the defaulting Owner of a fee, to be determined by the Association, but not to exceed $50.00, to cover the cost of preparing and recording such release. A certificate executed and acknowledged by any two members of the Board stating the indebtedness secured by the liens upon any Lot created hereunder shall be conclusive upon the Association and the Owners as to the amount of such indebtedness as of the date of the certificate in favor of all persons who rely thereon in good faith. Such certificate shall be furnished to any Owner upon request at a reasonable fee, to be determined by the Board.
Section 8.05. Cumulative Remedies. The assessment liens and the rights to foreclosure and sell thereunder shall be in addition to and not in substitution for all other rights and remedies which the Association and its assigns may have hereunder and by law, including a suit to recover a money judgment for unpaid assessments, as above provided.
Section 8.06. Mortgage Protection. Notwithstanding all other provisions hereof, no lien created under this Article VIII, no breach of this Declaration nor the enforcement of any provision hereof shall defeat or render invalid the rights of the Beneficiary under any recorded first Deed of Trust (meaning any deed of trust with first priority over other deeds of trust) upon a Lot made in good faith and for value; provided, however, that after such Beneficiary or some other Person obtains title to such Lot by judicial foreclosure or by means of the powers set forth in such first Deed or Trust, excluding obtaining title by means of a deed in lieu of foreclosure, such Lot shall remain subject to the Declaration and the payment of all installments of assessments accruing subsequent to the date such Beneficiary or other Person obtains title, but any liens created under this Article VIII which were due and payable prior to the date such Beneficiary or other Person obtains title as provided shall be extinguished.
Section 9.01. Members of Committee. The Architectural Committee shall consist of three members. The Board shall have the power to appoint and remove all of the members of the Architectural Committee. Persons appointed to the Architectural Committee by the Board shall be Members. The Architectural Committee shall have the right and duty to promulgate reasonable standards against which to examine any request made pursuant to this Article IX, in order to ensure that the proposed plans conform harmoniously to the exterior design and existing materials of the buildings in the Properties.
Section 9.01.1 Minimum Residential Construction: Consistent with the status of the Development as a planned, aviation-oriented fly-in community, all construction shall consist of a permanent, site-built residence with a minimum living area of 1400 square feet, and each residence constructed shall concurrently include an aircraft hanger having minimum enclosed area of 1500 square feet. Both residence & hanger shall be of such style and material as to blend harmoniously with existing construction and shall be subject to design review as provided within this Article IX. The provisions of this Section 9.01.1 are not intended to apply to commercial activities on Lots 10 and 11.
Section 9.02. Review of Plans and Specifications. The Architectural Committee shall consider and act upon any and all plans and specifications submitted for its approval under this Declaration and perform such other duties as from time to time shall be assigned to it by the Board, including the inspection of construction in progress to assure its conformance with plans approved by the Architectural Committee. No construction, alteration, addition, modification, decoration, redecoration or reconstruction of any Improvement in the Properties or substantial landscaping of any Lot shall be commenced or maintained until the plans and specifications therefor showing the nature, kind, shape, height, width, color, materials and location of the same shall have been submitted to the Architectural Committee and approved in writing by the Architectural Committee. The address for submission of such plans and specifications shall be the address of the principal place of business of the Association. The Owner shall obtain a written receipt for the plans and specifications submitted from an authorized representative of the Architectural Committee. The Architectural Committee shall approve plans and specifications submitted for its approval only if it deems that (i) the construction, alteration, addition, modification, decoration, redecoration or reconstruction contemplated thereby in the locations indicated will not be detrimental to the appearance of the surrounding area of the Properties as a whole, (ii) the appearance of any structure affected thereby will be in harmony with the surrounding structures, (iii) the construction thereof will not detract from the beauty, wholesomeness and attractiveness of the Common Area or the enjoyment thereof by the Members and (iv) the upkeep and maintenance thereof will not become a burden on the Association. The Architectural Committee may condition its approval of proposals or plans and specifications for any Improvement (i) on such changes therein as it deems appropriate, (ii) upon the agreement by the Person (referred to in this Section 9.02 as "applicant") submitting the same to grant appropriate easements to the Association for the maintenance of the Improvement or (iii) upon the agreement of the applicant to reimburse the Association for the cost of such maintenance, or all three, and may require submission of additional plans and specifications or other information prior to approving or disapproving material submitted. The Architectural Committee shall propose for Board approval rules or guidelines setting forth procedures for the submission of plans for approval, requiring a fee payable to the Association to accompany each application for approval or additional factors which it will take into consideration in reviewing submissions. The guidelines may provide that the amount of such fee shall be uniform or that it be determined in any other reasonable manner, such as by the reasonable cost of the construction, alterations or additions contemplated. The Architectural Committee may require such detail in plans and specifications submitted for its review as it deems proper, including, without limitation, floor plans, site plans, drainage plans, elevation drawings and description or samples of exterior material and colors. Decisions of the Architectural Committee and the reasons therefor shall be transmitted by the Architectural Committee to the applicant at the address set forth in the application for approval within forty-five days after receipt by the Architectural Committee of all materials required by the Architectural Committee. Any application submitted pursuant to this Section 9.02 shall be deemed approved, unless written disapproval or a request for additional information or materials by the Architectural Committee shall have been transmitted to the applicant within forty-five days after the date of receipt by the Architectural Committee of such application or additional information. In no event shall the provisions of this Article IX be interpreted to allow or grant the power to any Owner, the Association or the Architectural Committee to withhold approval of the construction, alteration, addition, modification, decoration, redecoration or reconstruction of any Improvement in Lot 10 or Lot 11, the landscaping of Lot 10 or Lot 11 or the taking of any other action subject to approval under this Article IX, which will unreasonably restrict or hinder the businesses operated on Lot 10 and the airport-related businesses operated on Lot 11, whether such businesses are being used by Owners, visitors or customers of Owners, as long as Lot 10 and Lot 11 are otherwise being operated in compliance with all applicable governmental statutes, rules and regulations, but the Dwelling Unit on Lot 11 shall be fully subject to the provisions of this Article IX.
Section 9.03. Meetings of the Architectural Committee. The Architectural Committee shall meet from time to time as necessary to perform its duties hereunder. The Architectural Committee may from time to time, by resolution unanimously adopted in writing, designate an Architectural Committee representative (who may, but need not, be one of its members) to take any action or perform any duties for and on behalf of the Architectural Committee, except the granting of variances pursuant to Section 9.08. In the absence of such designation, the vote of a majority of the members of the Architectural Committee, or the written consent of a majority of the members of the Architectural Committee taken without a meeting, shall constitute an act of the Architectural Committee.
Section 9.04. No Waiver of Future Approvals. The approval of the Architectural Committee to any proposals or plans and specifications or drawings for any work done or proposed or in connection with any other matter requiring the approval and consent of the Architectural Committee shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, drawings or matter whatever subsequently or additional]y submitted for approval or consent.
Section 9.05. Compensation of Members. The members of the Architectural Committee shall receive no compensation for services rendered, other than reimbursement by the Association for expenses incurred by them in the performance of their duties hereunder.
Section 9.06. Correction of Defects. Inspection of work and correction of defects therein shall proceed as follows:
(a) Upon the completion of any work for which approved plans are required under this Article IX, the Owner shall give written notice of completion to the Architectural Committee.
(b) Within sixty days thereafter, the Architectural Committee or its duly authorized representative may inspect such Improvement. If the Architectural Committee finds that such work was not done in substantial compliance with the approved plans, it shall notify the Owner in writing of such noncompliance within such sixty-day period, specifying the particulars of noncompliance, and shall require the Owner to remedy the same.
(c) If upon the expiration of thirty days from the date of such notification the Owner shall have failed to remedy such noncompliance, the Architectural Committee shall notify the Board in writing of such failure. After affording such Owner 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 Owner shall remedy or remove the same within a period of not more than forty-five days from the date of announcement of the Board ruling. If the Owner does not comply with the Board ruling within such period, the Board, at its option, may record a notice of noncompliance in the Office of the Kern County Recorder and may peacefully remove the noncomplying Improvement or otherwise peacefully remedy the noncompliance, and the Owner shall reimburse the Association upon demand for all expenses incurred in connection therewith, including, without limitation, court costs and reasonable attorneys' fees. If such expenses are not promptly repaid by the Owner to the Association, the Board shall levy a Special Assessment against such Owner for reimbursement, in addition to all other rights and remedies which the Association may have at law, in equity or in this Declaration.
(d) If for any reason the Architectural Committee fails to notify the Owner of any noncompliance within sixty days after receipt of said written notice of completion from the Owner, the Improvement shall be deemed to be in accordance with the approved plans.
Section 9.07. Nonliability of Architectural Committee Members. Neither the Architectural Committee or any member of the Architectural Committee nor the Board or their duly authorized representative shall be liable to the Association or to any Owner for any loss, damage or injury arising out of or in any way connected with the performance of the Architectural Committee's duties hereunder, unless due to the willful misconduct or bad faith of such party. The Architectural Committee shall review and approve or disapprove all plans submitted to it for any proposed construction, alteration or addition solely on the basis of aesthetic considerations and the overall benefit or detriment which would result to the immediate vicinity and the Properties generally. The Architectural Committee shall take into consideration the aesthetic aspects of the architectural designs, placement of buildings, landscaping, color schemes, exterior finishes and materials and similar features. The Architectural Committee's approval or disapproval shall be based solely on the considerations set forth in this Article IX, and the Architectural Committee shall not be 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 or other codes.
Section 9.08. Variances. The Board may authorize variances from compliance with any of the architectural provisions of this 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 consideration may require. Such variances must be evidenced in writing, must be signed by at least a majority of the members of the Board, and shall become effective upon recordation in the Office of the Kern County Recorder. If such variances are granted, no violation of the covenants, conditions and restrictions contained in this Declaration shall be deemed to have occurred with respect to the matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular property and particular provision hereof covered by the variance, nor shall it affect in any way the Owner's obligation to comply with all governmental laws and regulations affecting his use of such property, including, without limitation, zoning ordinances and lot setback lines or requirements imposed by the County of Kern or any other governmental authority.
MAINTENANCE AND REPAIR OBLIGATIONS
Section 10.01. Maintenance Obligations of Owners. Subject to the duty of the Association to provide for maintenance as provided in Section 10.02, it shall be the duty of each Owner, at his sole cost and expense, subject to the provisions of this Declaration regarding Architectural Committee approval, to maintain, repair, replace and restore areas subject to his exclusive control in a neat, sanitary and attractive condition. Areas subject to the exclusive control of an Owner shall be deemed to include for a Residential Lot, without limitation, all glass and exterior and interior portions of the Owner's Dwelling Unit, the patio areas of the Residential Lot, if any, the landscaped portions of the Residential Lot, any walls or fencing and any air conditioning compressor located thereon, which are not defined as a portion of the Structural Maintenance Areas. Within one year after completion of construction of a residence on a Residential Lot, the Owner shall complete the landscaping and the patio area, if any, in accordance with the standards adopted by the Architectural Committee. In the event that any Owner shall fail to landscape his Residential Lot or permit any Improvement, which is the responsibility of such Owner to maintain, to fall into disrepair or not to be so maintained so as to create a dangerous, obstructed, unsafe, unsightly or unattractive condition, or to otherwise violate this Declaration, the Board shall have either the right to seek any remedies at law or in equity which it may have or the right, but not the duty, after Notice and Hearing, to enter upon such area to make such repairs or to perform such maintenance, and the cost thereof shall be charged to the Owner. Said cost shall be a Special Assessment and shall create a lien enforceable in the same manner as other assessments as set forth in this Declaration.
Section 10.02. Maintenance Obligations of Association. No Improvement, excavation or work which in any manner alters the Common Area or the Structural Maintenance Areas from their existing state shall be made or done by any Person other than the Association or its authorized agents. The Association shall maintain or provide for the maintenance of all of the Common Area and all Improvements thereon, including, without limitation, private streets, walkways, taxiways, runways, sewers, commonly metered utilities, storm drains, parking areas, fences and walls, in good order and repair, and shall likewise provide for the painting, exterior maintenance and minor repair and replacement as necessary for the Structural Maintenance Areas. The Association shall also be responsible for the maintenance and replacement of trees, shrubs, vegetation, irrigation systems, private storm drain systems, private street lighting facilities, mailboxes and any other landscaping Improvements located on the Structural Maintenance Areas. All of the foregoing obligations of the Association shall be discharged when and in such manner as the Board shall determine in its judgment to be appropriate.
Section 10.03. Damage and Destruction Affecting Dwelling Units -- Duty to Rebuild. Unless the Association is then maintaining blanket fire and casualty insurance over the Dwelling Units in accordance with Section 13.01, if all or any portion of any Lot or Dwelling Unit is damaged or destroyed by fire or other casualty, it shall be the duty of the Owner of said Lot or Dwelling Unit to rebuild, repair or reconstruct said Dwelling Unit in a manner which will restore it substantially to its appearance and condition immediately prior to the casualty.
All real property within the Properties shall be held, used and enjoyed subject to the following limitations and restrictions.
Section 11.01. Residential Purposes. Each Residential lot shall be used for residential purposes only.
Section 11.02. Business or Commercial Activity. No part of the Properties except for Lot 10 and Lot 11 shall ever be used, caused to be used or allowed or authorized to be used in any way, directly or indirectly, for any business, commercial, manufacturing, mercantile, storage, vending or other such non-residential purposes. Subject to approval by the Architectural Committee, an Owner may use his Dwelling Unit for professional and administrative occupations without external evidence thereof, for so long as such occupations are in conformance with all applicable governmental ordinances and are merely incidental to the use of the Dwelling Unit as a residence. No part of Lot 11 shall be used for restaurant or lodging purposes.
Section 11.03. Nuisances. No noxious or offensive activity, including, without limitation, the repair or painting of motor vehicles or aircraft shall be carried on, in or upon any Lot (unless carried on entirely in an enclosure or on legally allowable portions of Lot 11) or the Common Area, nor shall anything be done thereon which may be or may become an annoyance or a nuisance to any other Owner. Without limiting the generality of the foregoing provisions, no loud noises or noxious odors, no exterior speakers, horns, whistles, bells or other sound devices, other than security devices used exclusively for security purposes, unreasonably noisy or smokey vehicles or aircraft, large power equipment or large power tools, unlicensed off-road motor vehicles or items which may unreasonably interfere with television or radio reception of any Owner shall be located, used or placed on any portion of the Properties or exposed to the view of the Owners without the prior written approval of the Architectural Committee. The Board shall have the right to determine in accordance with the By-Laws whether any noise, odor, interference or activity producing such noise, odor or interference constitutes a nuisance. Every Owner hereby acknowledges, however, the commercial and airport-related uses which will be conducted on Lot 10 and Lot 11, and in no event shall the provisions of this Article XI be interpreted to allow or grant the power to any Owner or the Association to declare a nuisance or take other similar action which will unreasonably restrict or hinder the businesses operated on Lot 10 and the airport-related businesses operated on Lot 11, whether such businesses are being used by Owners, visitors or customers of Owners, as long as Lot 10 and Lot 11 are otherwise being operated in compliance with all applicable governmental statutes, rules and regulations.
Section 11.04. Signs. No sign, poster, display, billboard or other advertising device of any kind shall be displayed to the public view on any Residential Lot without the prior written consent of the Architectural Committee except one sign for each Dwelling Unit, of not larger than four square feet, advertising the Dwelling Unit for sale or rent, or any signs to advertise the Properties during construction and sales period. All signs or billboards and the conditions promulgated for the regulation thereof shall conform to the requirements of all applicable governmental ordinances. This Section 11.04 shall not be interpreted to unreasonably restrict the display of any sign, poster, display, billboard or other advertising device on Lot 10 or Lot 11, as long as such signs conform to the requirements of all applicable governmental ordinances.
Section 11.05. Parking and Vehicular Restrictions. No owners shall park (other than temporarily), store or keep on any property or street, public or private, within the Properties any large commercial-type vehicle, including, without limitation, any dump truck, cement mixer truck, oil or gas truck or delivery truck, any recreational vehicle, including, without limitation, any camper unit, house car or motor home, bus, trailer, trailer coach, camp trailer, boat, aircraft, mobile home, inoperable vehicle or any other similar vehicle or any vehicular equipment, mobile or otherwise, deemed to be a nuisance by the Board, upon any unenclosed parking space, so as to be visible from anywhere in the Properties. All aircraft shall be stored in the hangars located on each Lot. No Owner shall conduct repairs, painting or restorations of any motor vehicle, boat, trailer, aircraft or other vehicle upon any portion of any Lot (unless carried on entirely in an enclosure or on legally allowable portions of Lot 11) or upon the Common Area. Garage doors and hangar doors shall remain closed except for reasonable periods while the garages or hangars are being used, and garages and hangars shall be used for garage and hangar purposes only and shall not be converted to other uses. Vehicles owned, operated or within the control of any Owner shall be parked in the garage located on the Residential Lot of such Owner, to the extent of the space available therein, and each Owner, to the extent necessary, shall ensure that such garage is maintained so as to be capable of accommodating one full-sized automobile. Notwithstanding the foregoing, these restrictions shall not be interpreted in such a manner so as to permit any activity which would be contrary to any ordinance of the County of Kern.
Section 11.06. Animal Restrictions. No insects, reptiles, poultry or animals of any kind shall be raised, bred, or kept on any Lot or the Common Area, except that usual and ordinary dogs, cats, fish, birds and other household pets, excluding, without limitation, equine, bovine, sheep, swine, goats and other such animals, may be kept on Lots, provided that they are not kept, bred or maintained for commercial purposes or in unreasonable quantities or in violation of the Rules and Regulations. As used in this Declaration, "unreasonable quantities" shall ordinarily mean more than three small pets per household; provided, however, that the Board, the Architectural Committee or such other person or entity as the Board may from time to time designate may determine that a reasonable number in any instance may be more or less. The Association acting through the Board shall have the right to prohibit maintenance of any animal which constitutes, in the opinion of the Board, a nuisance to any other Owner. Animals belonging to Owners, their families, guests, lessees or invitees within the Properties must be either kept within an enclosure, an enclosed yard or on a leash being held by a person capable of controlling the animal. Furthermore, any Owner shall be absolutely liable to each and all remaining Owners, their families, guests, lessees and invitees, for any unreasonable noise or damage to person or property caused by any animals brought or kept upon the Properties by an Owner or his family, guests, lessees or invitees, and it shall be the absolute duty and responsibility of each such Owner to clean up after such animals which have used any portion of the Common Area.
Section 11.07. Trash. No rubbish, trash, garbage or other waste material shall be kept or permitted upon any Lot or Common Area, except in sanitary containers located in areas designated for such purpose, and no odor shall be permitted to arise therefrom so as to render the Properties, or any portion thereof, unsanitary, unsightly, offensive or detrimental to any other property in the vicinity thereof or to its occupants. There shall be no exterior fires whatsoever except barbecue fires contained within receptacles therefor and fire pits in the enclosed yards designed in such manner that they do not create a fire hazard. No clothing or household fabrics shall be hung, dried or aired in such a way in the Properties as to be visible to other property, and no lumber, grass, shrub or tree clippings, plant waste, metals, bulk material, scrap, refuse or trash shall be kept, stored or allowed to accumulate on any portion of the Properties except within an enclosed structure appropriately screened from view. No plants or seeds infected with noxious insects or plant diseases shall be brought upon, grown or maintained upon the Properties.
Section 11.08. Temporary Buildings; Fencing. No outbuilding, steel building, basement, tent, shack, shed or other temporary building or Improvement of any kind shall be placed upon any portion of the Properties either temporarily or permanently, except for aircraft hangars on the Residential Lots, unless approved by the Architectural Committee, and except for Improvements to Lot 10 and Lot 11 approved by the Architectural Committee (subject to the restrictions on such approval specified in Section 9.02). No garage, trailer, camper, motor home or recreation vehicle shall be used as a residence in the Properties, either temporarily or permanently. No fencing, walls or similar enclosures shall be installed, built, altered or maintained around the exterior of any Lot, except for such enclosures approved by the Architectural Committee.
Section 11.09. Association Control. Nothing shall be altered or constructed in or removed from the Common Area or Structural Maintenance Areas except upon the written consent of the Association. All patio or other outdoor furniture placed by an Owner in his patio or other area visible to the outside on a Residential Lot shall either be in accordance with criteria established by the standards of the Architectural Committee or approved in writing by the Architectural Committee as to color, design and condition. All window treatments or protective coverings, including conventional drapes, in Dwelling Units, shall either be in accordance with criteria established by Architectural Committee or approved in writing by the Architectural Committee as to exterior appearance.
Section 11.10. Outside Installations. No exterior radio antenna, "C.B." antenna, television antenna or other antenna of any type shall be erected or maintained on any Residential Lot or Dwelling Unit, unless approved by the Architectural Committee. A master antenna or cable television antenna may, but need not, be provided for the use of all Owners, and the Association may grant easements for such purposes. No projections of any type shall be placed or permitted to remain above the roof of any building on any Residential Lot or Dwelling Unit, except one or more chimneys and vent stacks, unless approved by the Architectural Committee. No basketball backboard or other fixed sports apparatus shall be constructed or maintained in the Properties without the prior approval of the Architectural Committee.
Section 11.11. Insurance Rates. Nothing shall be done or kept in the Properties which will increase the rate of insurance on any property insured by the Association without the approval of the Board, nor shall anything be done or kept in the Properties which would result in the cancellation of insurance on any property insured by the Association or which would be in violation of any law.
Section 11.12. Drilling. No oil drilling, oil development operations, oil refining, quarrying or mining operations of any kind shall be permitted upon or in any Lot, nor shall oil wells, tanks, tunnels or mineral excavations or shafts be permitted upon the surface of any Lot or within five hundred fifty feet below the surface of the Properties. No derrick or other structure designed for use in boring for water, oil or natural gas shall be erected, maintained or permitted upon any Lot.
Section 11.13. Further Subdivision. No Owner shall further partition or subdivide his Lot; provided, however, that this provision shall not be construed to limit the right of an Owner (i) to rent or lease all or any portion of his Lot, (ii) to sell his Lot or (iii) to transfer or sell any Lot to more than one person to be held by them as tenants-in-common, joint tenants, tenants by the entirety or as community property. The occupancy of a Lot by a Person pursuant to any lease or rental arrangement shall be subject in all respects to the provisions of this Declaration and the By-Laws, and any failure by the lessee of such Lot to comply with the terms of this Declaration or the By-Laws shall constitute a default under the lease.
Section 11.14. Drainage. There shall he no interference with the established drainage pattern over any Lot within the Properties, unless an adequate alternative provision is made for proper drainage. For the purposes hereof, "established" drainage is defined as the drainage which exists at the time that such Lot is conveyed to a purchaser from the Original Developer, which may include drainage from the Common Area over any Lot or Lots in the Properties. All Owners hereby acknowledge that Lots 2, 3, 4, 5, 6, 7, 67 and 68 are subject to drainage and flowage easements in favor of the Association, as shown on the Recorded map for the First Subdivision, and that the drainage and flowage easements on Lots 2, 3, 4, 5, 6, 7, 67 and 68 shall be maintained by the Association in accordance with the provisions of this Declaration.
Section 11.15. Water Supply Systems. No individual water supply or sewage disposal system shall be permitted on any Lot in the Properties.
Section 11.16. Use of Runways by Adjacent Property Owners. Each Owner hereby acknowledges that certain Persons who own lots adjacent and to the east of the Properties have the right, by recorded easement agreement, to use of the runways and to access to their property from the runways and that under the terms of the recorded easement agreement such Persons and visitors of such Persons whose visits extend beyond four weeks are obligated to pay to the Association a monthly fee not to exceed fifty percent of the monthly airport tie down fee from time to time in effect.
Section 11.17. Aircraft, Runway and Taxiway Restrictions. Use of aircraft and use of the runways and taxiways located on the Properties by every Owner and, to the extent permitted by such Owner, such Owner's family, guests, invitees, customers, lessees and contract purchasers who reside in such Owner's Dwelling Unit or, in the case of Lot 10 and Lot 11, who have the right to enter onto Lot 10 or Lot 11, shall be subject to the following provisions:
(a) All aircraft traffic shall be restricted to aircraft not to exceed fifteen thousand pounds gross weight or of greater than sixty feet over-all width.
(b) No aircraft shall use the taxiways for any purpose whatsoever except to taxi to or from the runway and the parking areas including Lot 11, at a safe speed using minimum power necessary to acoomplish the operation.
(c) No aircraft shall be permitted on the taxiways and/or runways without adequate brakes.
(d) No night operations shall be permitted on the taxiways and/or runways without adequate landing lights or headlights. " Night operations " are defined as any aircraft or vehicular movement during the period from thirty minutes after sundown to thirty minutes before sunrise.
DAMAGE, DESTRUCTION OR CONDEMNATION OF COMMON AREA
Section 12.01. Damage, Destruction or Condemnation of Common Area. Damage to or destruction or condemnation of all or any portion of the Common Area shall be handled in the following manner:
(a) In the event of damage to or destruction of the Common Area, and the insurance proceeds are sufficient to effect total restoration, then the Association shall cause such Common Area to be repaired and reconstructed substantially as it previously existed.
(b) If the insurance proceeds are within $50,000.00 or less of being sufficient to effect total restoration to the Common Area, then the Association shall cause such Common Area to be repaired and reconstructed substantially as it previously existed, and the difference between the insurance proceeds available and the actual costs of reconstruction shall be levied as a Reconstruction Assessment against each of the Owners, in accordance with the provisions of Section 7.05.
(c) If the insurance proceeds are insufficient by more than $50,000.00 to effect total restoration to the Common Area, then by vote or written assent of a majority of the voting power of Members, the Members shall determine whether (i) to rebuild and restore in substantially the same manner as the Improvements existed prior to damage and to raise the necessary funds over the insurance proceeds by levying Reconstruction Assessments against all Lots, (ii) to rebuild and restore in a way which utilizes all available insurance proceeds and an additional amount not in excess of $50,000.00 and which is assessable uniformly to all owners but which is less expensive than replacing these Improvements in substantially the same manner as they existed prior to being damaged or (iii) subject to the provisions of Article XII, to not rebuild and to distribute the available insurance proceeds equally to the Owners and Mortgagees of the Lots as their interests may appear.
(d) Each Member shall be liable to the Association for any damage to the Common Area not fully reimbursed to the Association by insurance proceeds which may be sustained by reason of the negligence or willful misconduct of said Member or the Persons deriving their right and easement of use and enjoyment of the Common Area from said member, or of his respective family, guests, invitees or lessees, both minor and adult. The Association reserves the right acting through the Board, after Notice and Hearing, to (i) determine whether any claim shall be made upon the insurance maintained by the Association and (ii) charge a Special Assessment equal to the increase, if any, in the insurance premium directly attributable to the damage caused by such member or the Persons for whom such Member may be liable as described herein. In the case of joint ownership of a Lot, the liability of such Owners shall be joint and several, except to the extent that the Association has previously contracted in writing with such joint Owners to the contrary. After Notice and Hearing, the cost of correcting such damage, to the extent not reimbursed to the Association by insurance, shall be a Special Assessment against the Lot and may be collected in the manner provided herein for the collection o£ Common Assessments.
(e) If at any time all or any portion of the Common Area, or any interest therein, be taken for any public or quasi-public use under any statute, by right of eminent domain or by private purchase in lieu of eminent domain, the award in condemnation shall be paid to the Association. Any such award payable to the Association shall be deposited in the operating fund. No Member shall be entitled to participate as a party or otherwise in any proceedings relating to such condemnation. The Association shall have the exclusive right to participate in such proceedings and shall, in its name alone, represent the interests of all Members.
Section 13.01. Casualty Insurance.
(a) The Association shall keep all buildings, Improvements and fixtures of the Common Area insured against loss or damage by fire for the full insurance replacement cost thereof and may obtain insurance against such other hazards and casualties as the Association may deem desirable. The Association may also insure any other property whether real or personal owned by the Association 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 insurance coverage with respect to the Common Area shall he written in the name of, and the proceeds thereof shall be payable to, the Association. Insurance proceeds shall be used by the Association for repair or replacement of the property for which the insurance was carried. Premiums for all insurance carried by the Association are Common Expenses included in the Common Assessments made by the Association.
(b) In addition to casualty insurance on the Common Area, the Association acting through the Board may elect to obtain and continue in effect, on behalf of all Owners, adequate blanket casualty insurance and fire insurance in such form as the Board deems appropriate in an amount as near as possible to the full replacement value, without deduction for depreciation or coinsurance, of all of the Dwelling Units, including structural portions and fixtures thereof, owned by such Owners. Insurance premiums from any such blanket insurance coverage, and any other insurance premiums paid by the Association, shall be a Common Expense of the Association to be included in the regular Common Assessments of the Owners of Residential Lots as levied by the Association. In the event such blanket insurance is obtained by the Association, and only for so long as such policy remains in effect, the provisions of Section 13.02 shall not be applicable.
Section 13.02. Insurance Obligations of Owners. In the event the Association does not maintain blanket casualty insurance upon the Dwelling Units, then each Owner shall insure his entire Dwelling Unit and hangar, including the structural portions of his Dwelling Unit and hangar, against loss or damage by fire or by any other casualty under the standard form of extended endorsement now in use in the State of California or under such other insurance as may be required by any Mortgagee of the Dwelling Unit. All such insurance shall be in an amount as near as practicable to the full replacement value of the Dwelling Unit and hangar, without deduction for depreciation or coinsurance. Each Owner shall, within thirty days after recordation of the conveyance of his Lot from its previous Owner and thereafter at least ten days prior to the expiration, termination, cancellation or modification of any existing policy, furnish to the Association duplicate copies of policies or certificates thereof showing that such insurance is currently in force and certified by the insurance company or by its duly authorized agent. All such policies shall contain a provision that the same shall not be canceled or terminated except upon at least ten days' written notice to the Association and to each first Mortgagee which has requested such notice, and each Owner shall notify the Association of the existence or non-existence of an assignment of such insurance maintained by said Owner upon the sale of his Lot.
Section 13.03. Replacement or Repair of Property.
(a) In the event of damage to or destruction of any part of the Common Area Improvements, the Association shall repair or replace the same from the insurance proceeds available or distribute such insurance proceeds, subject to the provisions of Article XII. If such insurance proceeds are insufficient to cover the costs of repair or replacement of the property damaged or destroyed, the Association may make a Reconstruction Assessment against all Owners to cover the additional cost of repair or replacement not covered by the insurance proceeds, in addition to any other Common Assessments made against such Owners, in accordance with the provisions of this Declaration.
(b) In the event that the Association is maintaining insurance on the Dwelling Units, the Association shall repair or replace the same from the insurance proceeds available. If such insurance proceeds are insufficient to cover the costs of such repair or replacement of the Dwelling Unit or Dwelling Units so damaged or destroyed, the Board may levy a Reconstruction Assessment uniformly against all of the Owners of Residential Lots, based on the number of lots owned, to cover such insurance deficiency.
(c) The Owner or Owners of any damaged Lot or Dwelling Unit, the Association and the Architectural Committee shall he obligated to proceed with all due diligence hereunder, and the responsible party shall commence reconstruction within three months after the damage occurs and complete reconstruction within six months after damage occurs, unless prevented by causes beyond their reasonable control.
Section 13.04. Waiver of Subrogation. All policies of physical damage insurance maintained by the Association shall provide, if reasonably possible, for waiver of (i) any defense based on coinsurance, (ii) any right of setoff, counterclaim, apportionment, proration or contribution by reason of other insurance not carried by the Association, (iii) any invalidity, other adverse effect or defense on account of any breach of warranty or condition caused by the Association or any Owner or any tenant of any Owner, or arising from any act, neglect or omission of any named insured or the respective agents, con- tractors and employees of any insured, (iv) any rights of the insurer to repair, rebuild or replace, and, in the event 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 or the fair market value thereof and (v) notice of the assignment of any Owner of its interest in the insurance by virtue of a conveyance of any Lot. As to each policy of insurance maintained by the Association which will not be voided or impaired thereby, the Association hereby waives and releases all claims against the Board, the Owners, the Manager, 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 of or breach of any agreement by said persons, but only to the extent that insurance proceeds are received in compensation for such loss.
Section 13.05. Liability and Other Insurance The Association shall have the power and duty to and shall obtain comprehensive public liability insurance, including medical payments and malicious mischief, in such limits as it shall deem desirable, insuring against liability for bodily injury, death and property damage arising from the activities of the Association or with respect to property under its jurisdiction, including, if obtainable, a cross-liability endorsement insuring each insured against liability to each other insured. The Association may also obtain through the Board worker's compensation insurance and other liability insurance as it may deem desirable insuring each Owner, the Association, the Board and the Manager from liability in connection with the Common Area and Structural Maintenance Areas, the premiums for which are a Common Expense included in the Common Assessments made against the Owners. All insurance policies shall be reviewed at least annually by the Board and the limits increased in its discretion. The Board may also obtain such errors and omissions insurance, indemnity bonds, fidelity bonds and other insurance as it deems advisable, insuring the Board, the officers of the Association and the Manager against any liability for any act or omission in carrying out their obligations hereunder or resulting from their membership on the Board or on any committee thereof. Notwithstanding any other provisions herein, the Association shall continuously maintain in effect such casualty, flood and liability insurance and a fidelity bond meeting the requirements for planned unit developments established by the Federal National Mortgage Association ("FNMA"), the Government National Mortgage Association ("GNMA") and The Mortgage Corporation ("TMC"), so long as any of which is a Mortgagee or an Owner of a Lot in the Properties, except to the extent such coverage is not available or has been waived in writing by the FNMA, GNMA and TMC, as applicable.
MORTGAGEE PROTECTION CLAUSE
Section 14.01. Mortgagee Protection Clause
(a) Notwithstanding any and all provisions hereof to the contrary, in order to induce FNMA, GNMA and TMC to participate in the financing of the sale of Lots within the Properties, the following provisions are added hereto (and to the extent these added provisions conflict with any other provisions of the Declaration, these added provisions shall control):
(i) Each first Mortgagee of a Mortgage encumbering any Lot, at its written request, is entitled to written notification from the Association of any default by the Mortgagor of such Lot in the performance of such Mortgagor's obligations under this declaration, the Articles or the By-Laws, which default is not cured within thirty days after the Association learns of such default.
(ii) Each Owner, including every first Mortgagee of a Mortgage encumbering any Lot which obtains title to such Lot pursuant to the remedies provided in such Mortgage, by foreclosure of such mortgage or by deed (or assignment) in lieu of foreclosure shall be exempt from any "right of first refusal."
(iii) Each first Mortgagee of a Mortgage encumbering any Lot which obtains title to such Lot pursuant to the remedies provided in such Mortgage, by foreclosure of such Mortgage or by deed (or assignment) in lieu of foreclosure shall take title to such Lot free and clear of any claims of unpaid assessments or charges against such Lot which accrued prior to the acquisition of title to such Lot by the Mortgagee.
(iv) Unless at least two-thirds of first Mortgagees (based upon one vote for each Mortgage owned) or Owners have given their prior written approval, neither the Association nor the Owners shall:
(A)Subject to California nonprofit corporation law to the contrary, by act or omission seek to abandon, partition, alienate, subdivide, release, hypothecate, encumber, sell or transfer the Common Area and the Improvements thereon which are owned by the Association; provided, however, that the granting of easements for public utilities or for other public purposes consistent with the intended use of such property by the Association as provided in this Declaration shall not be deemed a transfer within the meaning of this clause;
(B)Change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner or the method of allocating distributions of hazard insurance proceeds or condemnation awards;
(C)By act or omission change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to the architectural design of the exterior appearance of the Dwelling Units, the maintenance of the exterior walls or common fences and driveways or the upkeep of lawns and plantings in the Properties;
(D)Fail to maintain fire and extended coverage on insurable Common Area property on a current replacement cost basis in an amount as near as possible to one hundred percent of the insurance value, based on current replacement cost; or
(E)Use hazard insurance proceeds for losses to any Common Area property for other than the repair, replacement or reconstruction of such Improvements.
(v)First Mortgagees, upon written request, shall have the right to (A) examine the books and records of the Association during normal business hours, (B) require from the Association the submission of any audited annual financial reports and other financial data prepared by the Association, (C) receive written notice of all meetings of the Members and (D) designate in writing a representative to attend all such meetings.
(vi) All first Mortgagees who have filed a written request for such notice with the Board shall be given thirty days' written notice prior to the effective date of any proposed, material amendment to this Declaration, the Articles or the By-Laws and prior to the effective date of any termination of any agreement for professional management of the Properties following a decision of the Owners to assume self-management of the Properties and (B) immediate notice following any damage to the Common Area whenever the cost of reconstruction exceeds $10,000.00, and as soon as the Board learns of any threatened condemnation proceeding or proposed acquisition of any portion of the Properties.
(vii) 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 Common Area facilities 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.
(viii) The common area reserve fund must be funded by regular scheduled monthly, quarterly, semiannual or annual payments rather than by large Special Assessments.
(ix) The Board shall secure and cause to be maintained in force at all times a fidelity bond for any Person handling funds of the Association, including, without limitation, employees of any manager.
(x) Any breach of or amendment to the covenants, conditions or restrictions contained in this Declaration or in the By-Laws shall not affect or impair the lien or charge of any first Mortgage or Deed of Trust made in good faith and for value on any Lot or the improvements thereon; provided, however, that any subsequent Owner of such property shall be bound by said covenants, whether such Owner's title was acquired by foreclosure in a trustee's sale or otherwise.
(b) In addition to the foregoing, the Board may enter into such contracts or agreements on behalf of the Association as are required in order to satisfy the guidelines of FNMA, GNMA or TMC or any similar entity, so as to allow for the purchase, insurance or guaranty, as the case may be, by such entities of first Mortgages encumbering Lots with Dwelling Units thereon. Each Owner hereby agrees that it will benefit the Association and the membership of the Association, as a class of potential Mortgage borrowers and potential sellers of their Dwelling Units, if such agencies approve the Properties as a qualifying subdivision under their respective policies, rules and regulations, as adopted from time to time. Mortgagees are hereby authorized to furnish information to the Board concerning the status of any Mortgage encumbering a Lot. The provisions of this Article XIV may not be amended without the prior written approval of at least seventy-five percent of all first Mortgagees of Lots in the Properties.
Section 15.01. Enforcement. This Declaration, the Articles and the By-Laws may be enforced by the Association as follows:
(a) Breach of any of the covenants contained in this Declaration, the Articles or the By-Laws and the continuation of any such breach may be enjoined, abated or remedied by appropriate legal proceedings by any Owner, the Association or its successors-in-interest. Any judgment rendered in any action or proceeding pursuant hereto in favor of the prevailing party shall include a sum for attorneys' fees in an amount as the court may deem reasonable, as well as the amount of any delinquent payment, interest thereon, costs of collection and court costs.
(b) The result of every act or omission whereby any of the covenants contained in this Declaration, the Articles or the By-Laws are violated in whole or in part is hereby declared to be and constitutes a nuisance, and every remedy allowed by law and equity against a nuisance either public or private shall be applicable against every such result and may be exercised by any Owner, the Association or its successors-in-interest.
(c) The remedies herein provided for breach of the covenants contained in this Declaration, the Articles or the By-Laws shall be deemed cumulative, and none of such remedies shall be deemed exclusive.
(d) The failure of the Association to enforce any of the covenants contained in this Declaration, the Articles or the By-Laws shall not constitute a waiver of the right to enforce the same thereafter.
(e) If any Member, his family, guest, licensee, lessee, or invitee violates the Restrictions, the Board may, in addition to the other remedies available, impose a reasonable Special Assessment upon such Owner for each violation. Before invoking any such measure, the Board shall give such Member Notice and Hearing, as further provided in the By-Laws.
Section 15.02. Severability. Invalidation of any one of the covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect.
Section 15.03. Term. The covenants and restrictions of this Declaration shall run with and bind the Properties, and shall inure to the benefit of and be enforceable by the Association or the Owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of fifty years from the date this declaration is Recorded, after which time said covenants, conditions, restrictions, easements and equitable servitudes shall be automatically extended for successive periods of ten years, unless an instrument, signed by the then Owners of a majority of the Lots, has been Recorded, agreeing to change or terminate this Declaration in whole or in part.
Section 15.04. Interpretation. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development of a residential community and for the maintenance of the Structural Maintenance Areas and the Common Area. 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. Unless the context requires a contrary construction, the singular shall include the plural, and the plural the singular, and the masculine shall include the feminine and neuter.
Section 15.05. Amendments. This Declaration may be amended only by the vote or written assent of at least seventy-five percent of the voting power of the Members provided, however, that the specified percentage of a quorum or of the voting power of the Members necessary to amend a specific section or provision of this Declaration shall not be less than the percentage of affirmative votes prescribed for action to be taken under that section or provision. Any supplement, amendment or modification to this Declaration must be signed by at least two officers of the Association indicating that the requisite approvals have been obtained, and such amendment or supplement must be recorded in the Office of the Kern County Recorder.
Section 15.06. Use of Recreational Facilities. The Board shall have the right to limit the number of guests that an Owner may permit to use the recreational and parking facilities on the Common Area, and the Board shall have the right to set further reasonable restrictions on the time and manner o£ use of said parking spaces and other recreational facilities, in accordance with the Rules and Regulations.
Section 15.07. No Public Right or Dedication. Nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any part of the Properties to the public or for any public use.
Section 15.08. Constructive Notice and Acceptance. Every Person who owns, occupies or acquires any right, title, estate or interest in or to any Lot or other portion of the Properties does and shall be conclusively deemed to have consented and agreed to every limitation, restriction, easement, reservation, condition and covenant contained in the instrument by which such person acquired an interest in the Properties, or any portion thereof.
Section 15.09. Reservation of Easements. Reciprocal non-exclusive easements are hereby reserved for the benefit of adjoining Owners for the control, maintenance and repair of the utilities of adjoining Owners. The Association expressly reserves for the benefit of all of the real property in the Properties and the Owners, reciprocal, non-exclusive easements of access, ingress and egress over all Lots and over the Common Area for the purposes and enjoyment of the Lots in accordance with this Declaration, including, without limitation, for maintenance and repair of utility services, drainage over, across and upon adjacent Lots for water resulting from the normal use of adjoining Lots and maintenance and repair of any Dwelling Unit. In the event that any Dwelling Unit encroaches upon the Common Area and facilities as a result of construction, reconstruction, repair, shifting, settlement or movement of any portion of the Properties, a valid easement for encroachment and for maintenance of the same shall exist so long as the encroachment exists. The Owners of each Lot on said Lot line shall have an easement appurtenant to said Lot over the Lot line to and over the adjacent Lot for the purposes of accommodating any natural movement or settling of any Dwelling Unit located on said Lot, any encroachment of any Dwelling Unit due to minor engineering or construction variances, and any encroachment of eaves, roof overhangs and architectural features as parts of the original construction of any Dwelling Unit located on said Lot. The Association reserves for the benefit of each Owner, his guests and lessees an easement across that portion of the Common Area maintained as a driveway and extending from the garage or parking area located on his Lot to any portion of the Common Area maintained as a road for the purpose of parking and driving motor vehicles, for the exclusive use and enjoyment of such Owner and the Owner of the adjoining Dwelling Unit.
Section 15.10. 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 forty-eight hours after a copy of the same has been 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 or to the Dwelling Unit of such person if no address has been given to the Association. Such address may be changed from time to time by notice in writing to the Association.
Section 15.11. No Representation or Warranties. No representations or warranties of any kind, express or implied, have been given or made by the Association or its agents or employees in connection with the Properties, or any portion thereof or any Improvement thereon, its physical condition, zoning, compliance with applicable laws, fitness or intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof as a planned unit development, except as specifically and expressly set forth in this Declaration and except as may be filed from time to time with the California Department of Real Estate or with any other governmental authority.
Section 15.12. Water Rights and Utility Easements. Rights and easements on, over and under the Properties for the supplying, furnishing, installation and maintenance of electric, telephone, water, gas and sanitary sewer lines and facilities, and for drainage facilities as shown on the recorded maps of the Properties, and as may be hereafter required or need to service the Properties, are hereby reserved by the Association for the benefit of, and appurtenant to, the Properties, together with the right to grant and transfer such easements. Such rights and easements reserved to the Association shall specifically include, without limitation, the right to install one or more wells to be located upon the Common Area together with such pumps, pump stations, pump systems, electrical systems and distribution systems required in connection with such wells (which wells, pumps and systems are hereinafter collectively referred to as the "water systems") for the purpose of obtaining and providing water for irrigating, watering and maintaining the Common Area. The Association shall have the exclusive right to drill wells on and extract water from the Common Area. The water systems shall be and remain the property of the Association. The expense of repairing, maintaining and operating the water systems, including, without limitation, all electrical expenses, shall be paid by the Association.
Section 15.13. Non-Liability and Indemnification.
(a) No right, power or responsibility conferred on the Board the Architectural Committee by this Declaration, the Articles or the By-Laws shall be construed as a duty, obligation or disability charged upon the Board, the Architectural Committee or any member of the Board or the Architectural Committee or any other officer, employee or agent of the Association. No such Person shall be liable to any party (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 within what such Person reasonably believed to be the scope of his Association duties ("Official Acts"), except to the extent that such injuries or damage result from such Person's willful or malicious misconduct. No such Person shall be 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 negligence or willful or malicious misconduct.
(b) The Association shall pay all expenses incurred by, and satisfy any judgment or fine levied against, any Person as a result of any action or threatened action against such Person to impose liability on such Person for his Official Acts, provided that:
(i) The Board determines that such Person acted in good faith and in a manner such Person reasonably believed to be in the best interests of the Association;
(ii) In the case of a criminal proceeding, the Board determines that such Person had no reasonable cause to believe his conduct was unlawful; and
(iii) In the case of an action or threatened action by or in the right of the Association, the Board determines that such Person acted with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
(c) Any determination of the Board required under this Section 15.13 must be approved by a majority vote of a quorum consisting of Directors who are not parties to the action or threatened action giving rise to the indemnification. If the Board fails or refuses to make such determination, such determination may be made by the vote of a majority of a quorum of the Members of the Association voting at a meeting of the Association called for such purpose, provided that the Person to be indemnified shall not be entitled to vote.
(d) Payments made hereunder shall include amounts paid and expenses incurred in settling any such action or threatened action. This Section 15.13 shall be construed to authorize payments and indemnification to the fullest extent now or hereafter permitted by applicable law.
<End of Declarations>
IN WITNESS WHEREOF, the undersigned Officers of the Rosamond Skypark Association have executed this Declaration as of the date first hereinabove written.
Roger Hensley, President Robert Carlson, Vice President
STATE OF CALIFORNIA
COUNTY OF KERN
On ________________, 1999, before me, the undersigned, a Notary Public in and for said County and State, personally appeared Roger Hensley and Robert Carlson, personally known to me (or provided to me on the basis of satisfactory evidence) to be Officers of the ROSAMOND SKYPARK ASSOCIATION, the Corporation that executed the within instrument, personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument, on behalf of the Corporation herein named, and acknowledged to me that such Corporation executed the within instrument pursuant to its by-laws.
WITNESS my hand and official seal:
Notary Public in and for
said County and State
ROSAMOND SKYPARK ASSOCIATION
Dated March 8, 1985 and filed on March 11, 1985 as Document 1333702 in the Office of the Secretary of State of the State of California, these Articles are incorporated herein by reference.
ROSAMOND SKYPARK ASSOCIATION
Dated March 8, 1985, and filed on May 31, 1985 in Book 5674, Pages 1567 - 1594, inclusive, of the Records of Kern County, California, these By-Laws are incorporated herein by reference.
CLICK HERE for a PDF file copy of the By-Laws
LEGAL DESCRIPTION OF THE
The east half of the east half of the
(This is the parcel numbered "4" below)
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