THIRD RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF TAHOE DONNER SKI BOWL CONDOMINIUM ASSOCIATION

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1 THIRD RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF TAHOE DONNER SKI BOWL CONDOMINIUM ASSOCIATION That certain Second Restated Declaration of Covenants, Conditions and Restrictions of Tahoe Donner Ski Bowl Condominium Assocation, recorded in the Official Records of Nevada County, California on May 10, 2001, as Document No , and (the Second Declaration ), is hereby amended and restated in its entirety to read as follows: RECITALS A Declarant was the original owner of that certain real property located in the Town of Truckee, County of Nevada State of California, that is more particularly described on Exhibit A attached hereto and incorporated herein by reference. Said real property is referred to herein as the Property. B. To implement the Declarant s plan of development of the Property as a condominium project, as defined in California Civil Code section 1351(f)/4125 (the Project ) the Declarant recorded a Condominium Plan prepared in accordance with Civil Code section 1351, and attached to and recorded with the the Original Declaration of Covenants, Conditions and Restrictions, Tahoe Donner Ski Bowl Condominium Association, recorded December 20, 1972, in Book 627, at Page 576 of the Official Records of Nevada County (the Original Declaration ). The Project consists of 130 condominium units, as well as parking areas and other Common Facilities that are more particularly described below. C The Declarant deemed it desirable to impose a general plan for the development, maintenance, Improvement, protection, use, occupancy and enjoyment of the Condominium Units and Common Areas of the Project and to establish, adopt and impose covenants, conditions and restrictions upon the Property and the Project for the purpose of enforcing, protecting and preserving the value, desirability and attractiveness of the Property and the Improvements erected thereon by the Declarant. That general plan was set forth by the Declarant in the Original Declaration. D The Original Declaration was subsequently refined by (i) that certain Amendment to Declaration recorded on July 2, 1973, at Book 650, at Page 394 of the Official Records of Nevada County, and (ii) that certain Supplemental Condominium Declaration, Tract II, Tahoe Donner Ski Bowl Condominiums recorded on March 21, 1974, at Book 682, Page 495 in the Official Records of Nevada County. Thereafter, the Original Declaration and subsequent amendments/supplemental declarations were amended and restated in their entirety by that certain First Restated Declaration of Covenants, Conditions and Restrictions recorded on May 30, 1995 as Instrument No in the Official Records of Nevada County (the First Declaration ). The First Declaration was then amended and restated in its entirety by the Second Second Declaration. The Original Declaration, the First Declaration, and the Second Declaration are being amended and restated in their entirety by this Third Restated Declaration, and this 1

2 Third Declaration supersedes and replaces all prior recorded covenants, supplements or amendments thereto in their entirety. E The Declarant also formed a nonprofit mutual benefit corporation, known as the the Tahoe Donner Ski Bowl Condominium Assocation, a California nonprofit mutual benefit corporation (the Association ) which was delegated and assigned the powers of administering and enforcing the covenants, conditions and restrictions set forth in the Original Declaration, the First Declaration, the Second Declaration and this Third Declaration, as such covenants, conditions and restrictions may be duly amended from time to time and to manage and maintain the Common Areas and Common Facilities of the Project in accordance with this Third Declaration and the other Governing Documents of the Association. F This Third Restated Declaration of Restrictions of the Tahoe Donner Ski Bowl Condominium Assocation (this Third Declaration ) was presented to the Members for approval in order to improve and update the Second Declaration in the following respects: (i) to update the Second Declaration to reflect changes in underlying statutory law relating to California common interest projects and their owners associations; (ii) to align current and desired Association practice and procedure with the requirements of this Second Declaration, and to eliminate uneeded and unused procedures. Each and all of the covenants, conditions, restrictions, easements, reservations, liens and charges (hereinafter collectively referred to as the covenants ) set forth in this Third Restated Declaration (which shall subsequently be referred to herein as the Declaration ) shall run with the land comprising the the Property and the Project, and shall inure to the benefit of and be binding upon the Association, the current Owners of Condominium Units in the Project, and all subsequent Owners of all or any portion of the Property and the Project, together with their grantees, successors, heirs, executors, administrators, devisees and assigns. G On, 2013, a majority of the Owners voted by secret written ballot in accordance with California Corporations Code section 7513 and California Civil Code section to amend and restate, in its entirety, the Second Declaration, all in accordance with the procedures for amendment set forth in Article XII, Section 5 of the Second Declaration. In approving this Third Declaration it was the intention of the Owners to replace the Second Declaration, in its entirety, without, however, altering the priority of the Covenants in the chain of title to the Property. The Owners' action to amend and restate the Second Declaration as set forth herein, and the fact that the requisite percentage of affirmative votes required in the Second Declaration was achieved, is attested by the execution of this Declaration by duly authorized officers of the Association, as required by section 1355(a) of the California Civil Code. As so amended and restated, these Covenants shall run with the Property and shall be binding upon all parties having or acquiring any right, title or interest in the Property, the Project, or any portion thereof, and shall inure to the benefit of each Owner thereof. ARTICLE I DEFINITIONS Section Articles means the Articles of Incorporation of the Association, which are filed in the Office of the Secretary of State of California, as such Articles may be amended from time to time. 2

3 Section Assessment means any Regular, Special, Special Individual or Emergency Assessment made or assessed by the Association against an Owner and the Owner's Condominium in accordance with the provisions of Article IV, below. Section Association means and refers to Tahoe Donner Ski Bowl Condominium Association, a California nonprofit mutual benefit corporation its successors and assigns. The Association is an association as defined in California Civil Code section 1351(a). Section Association Rules means the rules and regulations adopted by the Board of Directors of the Association pursuant to Section 3.08, below, as the same may be in effect from time to time. Section the Association. Board of Directors or Board means the Board of Directors of Section Bylaws means the Second Restated Bylaws of the Association as such Bylaws may be amended from time to time. Concurrently with this Third Declaration, the Association has circulated Third Restated Bylaws of the Association for approval of the membership to supersede and replace the Second Restated Bylaws. Section Town means the incorporated Town of Trukcee, in the County of Nevada, State of California, and its various departments, divisions, employees and representatives. Section Common Area means the entire Project other than the Units, as defined herein or as shown on the Condominium Plan, including, without limitation, the Condominium Common Area and the Project Common Area. Portions of the Common Area including, without limitation, shutters, awnings, doorsteps, stairs, front and rear porches (including railings, deckings and appurtenances thereto and the airspace to a height of eight feet above each porch within the permiter), balconies, patios, exterior doors, door frames, garages, storage areas and hardware incidental thereto, screens and windows are set aside and allocated for the exclusive use and enjoyment of the Units which are adjacent to such Common Area, all as more particularly designated on the Condominium Plan. Such Common Areas shall be referred to herein as Exclusive Use Common Areas. Section Condominium Common Area means all the real property including improvements and air space not a part of the Units, including bearing walls, columns, floors, roofs, foundations, reservoirs, tanks, pumps, and other central services, meters, pipes, decks, flues, chutes, conduits, wires and other utility installation serving multiple Units. The Condominium Common Area is owned by the Owners of property within the development as tenants-in-common. Section Project Common Area means such common area owned by the Association and consists of the roads and the recreation building, swimming pool, parking area, landscaped and open space areas and appurtenances and is more particularly described in Exhibit attached hereto. 3

4 Section Common Expense means any use of Common Funds authorized by Article IV, below, and Article IX of the Bylaws and includes, without limitation: (a) all expenses or charges incurred by or on behalf of the Association for the management, maintenance, administration, insurance, operation, repairs, additions, alterations or reconstruction of the Property as incurred or as may be estimated from time to time by the Association's Board of Directors; (b) any amounts reasonably required to be set aside as reserves for maintenance, repair and replacement of the Common Areas and Common Facilities and for nonpayment of any Assessments; and (c) the use of such funds to defray costs and expenses incurred by the Association in the performance of its functions or in the proper discharge of the responsibilities of the Board as provided in the Governing Documents. Section Common Facilities refers to the facilities that are not part of any Unit such as: the administration building, recreation building, swimming pool, pump house and apron area, spa, sauna, Jacuzzi, parking areas, garagres, child play areas, greenbelt areas, and to the trees, hedges, plantings, lawns, shrubs, landscaping, fences, utilities, beams, pipes, lines, exterior lighting fixtures, buildings, structures, master antenna system and other facilities constructed or installed, to be constructed or installed, or currently located on or within any portion of the Common Area. The Common Facilities shall also include any residential building structure that is not defined as a Unit. Common Funds means all funds collected or received by the Association: (a) for use in the maintenance, management, administration, insurance, operation, replacement, repair, addition to, alteration or reconstruction of all or any portion of the Common Area and Common Facilities; and (b) for use in discharging any and all of the Association's duties as provided in the Governing Documents. Section Condominium means an estate in real property as defined in California Civil Code section 783 and section 1351(f), consisting of an undivided interest as a tenant-in-common in a portion of the Common Area, as described in the Condominium Plan, together with a separate interest in a space designated as a Unit and described in the Condominium Plan. Section Condominium Plan means the plan of Condominium and any amendments thereto Recorded pursuant to California Civil Code section 1351(e) with respect to the Property. Section Contract Purchaser means the buyer of fee simple title of an entire interest in a Unit under a bona fide purchase and sale agreement with a current Member as seller. Section County means the County of Nevada, State of California, and its various departments, divisions, employees and representatives. Davis-Stirling. Davis-Stirling shall mean the Davis-Stirling Common Interest Development Act. All citations to Davis-Stirling shall include the current citation located in Civil Code section 1350 et seq., and also a citation to the new Davis-Stirling numbering in the Civil Code as effective January 1, 2014 (Civil Code section 4000 et seq.). In the event Davis- Stirling is further amended, then the Bylaws shall be deemed to reference the updated Davis- Stirling citations. 4

5 Section time to time. Declaration means this instrument as it may be amended from Section Emergency Assessment means and refers to an Assessment imposed by the Association s Board of Directors in order to provide funding to respond to and remedy an emergency situation as defined in Section 4.05, below. Section Exclusive Use Common Area shall mean those portions of the Common Area that are assigned to and/or used exclusively by the residents of any given Unit, such as: shutters, awnings, window boxes, door steps, stoops, porches, enclosed porches, stairs, enclosed patio areas, balconies, exterior doors, door frames and hardware incidental thereto, screens, windows, storage spaces and garages. Section Family means one or more persons each related to the other by blood, marriage or legal adoption, or a group of not more than three persons not so related who maintain a common household in a Condominium Unit. Section Governing Documents refers collectively to this Declaration, the Condominium Plan, the Articles and the Bylaws of the Association and the Association Rules, and all amendments thereto. Section Lease means any agreement (written or verbal) under which a person is permitted to occupy a Unit for compensation of any kind, including, without limitation, any fee, service, gratuity, money, exchange or other consideration. The verb leasing shall include the above arrangements where a person other that the Owner is allowed to use the Unit. Section Map means that certain Subdivision Map entitled Tract 4623, The Poplars, a Condominium Project, recorded July 15, 1974, in Book 170, at Pages 49 through 50, Nevada County Records, State of California. Section Majority of a Quorum means the vote of a majority of the votes cast at a meeting or by written ballot when the number of Members attending the meeting in person or by proxy or casting written ballots equals or exceeds the quorum requirement for Member action, as specified in the Bylaws or otherwise by statute. Section Member means every Owner who holds a membership in the Association and whose rights as a Member are not suspended pursuant to Section 14.05, below. Section Mortgage means any security device encumbering all or any portion of the Property, including any deed of trust. Section Mortgagee shall refer to a beneficiary under a deed of trust as well as to a mortgagee in the conventional sense. Section Owner means any person, firm, corporation or other entity (including contract sellers, but excluding any person or entity holding such interest merely as security for the payment of a debt or the performance of an obligation) which holds a fee simple 5

6 interest in any Condominium and includes (except when the context otherwise requires) the Family, guests, tenants and invitees of such Owner. Section Project means the entire parcel of real property described on the Map which is dividied into Condominiums, including all structures and all improvements that are located within the Property, as shown on the Condominium Plan, including, without limitation, the Units, the Condominium Common Area and the Project Common Area. Section Property means the real property described in Recital A, including all structures and Improvements located thereon. The Property, together with the improvements thereon, are a statutory condominium project as defined in California Civil Code section 1351(f)/4075 et seq. Section Record, Recorded, and Recording means, with respect to any document, the recordation or filing of such document in the Office of the County Recorder. Section Regular Assessment means an Assessment levied against an Owner and his or her Condominium in accordance with Section 4.02, below. Section Single Family Residential Use means occupancy and use of a Unit for single family dwelling purposes in conformity with this Declaration and the requirements imposed by applicable zoning laws or other state or municipal rules and regulations. In no event shall a Unit be occupied by more individuals than permitted by applicable law, zoning or regulation. Section Special Assessment means an Assessment levied against an Owner and his or her Condominium in accordance with this Declaration. Section Special Individual Assessment means an Assessment levied against an Owner and his or her Condominium in accordance with this Declaration. Section Unit means the elements of a Condominium that are not owned in common with the other Owners. Each such Unit shall be a separate estate consisting of the space bounded by and contained within the unfinished interior surfaces of the perimeter walls, floors, ceilings, windows and doors of each Unit. Accordingly, the boundaries of each Unit begin at the gypsum finishing, plaster, paint, wallpaper or paneling on the perimeter walls and ceilings of the Unit and with any vinyl, hardwood or carpet finishing, if any, on the floors of the Unit. The respective elements and the boundaries of each Unit are more particularly described in the Condominium Plan. In interpreting deeds and plans, the existing physical boundaries of a Unit, or of a Unit reconstructed in substantial accordance with the original plans, shall be conclusively presumed to be the Unit's boundaries rather than the description expressed in the deed or plans, regardless of minor variances between the boundaries as shown on the plans or the deed and those of the building containing the Unit and regardless of settling or lateral movement of the building. Whenever reference is made to a Unit, whether in this Declaration, the Condominium Plan, any deed or elsewhere, it shall be assumed that such reference is made to the Unit as a whole, including each of its component elements (including the airspace so encompassed), and to 6

7 any and all Exclusive Use Common Areas, if any, appurtenant to the Unit. The term Unit does not include those areas of the Property that are defined herein as Common Area or Common Facilities. ARTICLE II DECLARATION AND PROPERTY RIGHTS Section Ownership of Condominium; Easements. The interest of every Owner of a Condominium within the Property shall include a Unit, the respective undivided interest in the Condomnium Common Area, a membership in the Association, and any exclusive or nonexclusive easements appurtenant to such Unit over the Common Area as described in this Declaration or the Condominium Plan. The common interest portion of a Condominium appurtenant to each Unit is declared to be permanent in character and cannot be altered without the consent of all Owners and the first Mortgagees of such Owners as expressed in a duly adopted amendment to this Declaration. For so long as the prohibition against severability of the component interests of a Condominium is in effect pursuant to Article XII, below, the common interest portion of a Condominium cannot be separated from the Unit to which it is appurtenant. Section Owners' Nonexclusive Easements of Enjoyment. Every Owner of a Condominium shall have a nonexclusive right and easement of enjoyment in and to the Common Area, including ingress and egress to and from the Owner's Unit. However, such nonexclusive easements shall be subordinate to, and shall not interfere with, Exclusive Use Common Area easements appurtenant to other Condominiums. Each such nonexclusive easement shall be appurtenant to and shall pass with the title to every Condominium, subject to the following provisions: (a) The right of the Association to assign, rent, license, lease, charge reasonable fees for, and to otherwise designate and control the use of any unassigned parking and storage spaces situated within the Common Area and to charge reasonable admission or user fees, or limit the number of Member guests who may use recreational Common Facilities. (b) The right of the Association to adopt rules and regulations as provided in Section 3.08, below, (the Association Rules ) and, in the event of a breach of the Association Rules or of any other Governing Document provision, to initiate disciplinary action against the violating Owner or tenant in accordance with Section 13.06, below. Such action may include the levying of fines and/or the temporary suspension of an Owner's voting rights and/or the right of an Owner and the Owner's tenants and guests to use any recreational Common Facilities. (c) The right of the Association to dedicate or transfer all or any part of any private street or roadway within the Common Area to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed by the Owners. No such dedication or transfer shall be effective unless an instrument, approved by at least two-thirds of the voting power of the Members and their first Mortgagees, which consents to such dedication or transfer has been Recorded. Furthermore, no dedication shall be permitted that impairs the ingress and egress to any individual Unit. Any instrument approving a dedication hereunder may be executed in counterpart so long as each counterpart is in recordable form. 7

8 (d) The right of the Association, in accordance with its Articles and Bylaws, to borrow money for the purpose of improving the Common Area and Common Facilities, provided, however, that any such indebtedness shall be considered an expense of the Association for purposes of the Special Assessment provisions of Section 4.03, below. (e) The rights of individual Unit Owners with respect to the use and enjoyment of any Exclusive Use Common Areas that are appurtenant to the Owner s Unit. Section Delegation of Use. (a) Delegation of Use and Leasing of Condominium Units. Any Owner may delegate his or her rights to use and enjoy the Common Area and Common Facilities to his or her Family members or tenants, lessees or contract purchasers who reside in the Unit; provided, however, that any rental or lease may only be to a single family for Single Family Residential Use. During any period when a Unit has been rented or leased, the Owner-lessor, his or her Family, guests and invitees shall not be entitled to use and enjoy the Common Areas or Common Facilities of the Property (other than roads), except to the extent reasonably necessary to perform the Owner's responsibilities as a lessor of the Unit; provided, however, that this restriction shall not apply to any Owner-lessor who is contemporaneously residing in another Condominium Unit within the Property. Any rental or lease of a Condominium Unit shall be subject to the provisions of the Governing Documents all of which shall be deemed incorporated by reference in the lease or rental agreement. Each Owner-lessor shall provide any tenant or lessee with a current copy of all Governing Documents and shall be responsible for compliance by the Owner's tenant or lessee with all of the provisions of the Governing Documents during the tenant's/lessee's occupancy and use of the Unit. With the exception of the right of use of any roads within the Project, the Board shall have the right to impose monetary penalties or to temporarily suspend (which may continue during the period of non-compliance and up to one year thereafter)) the use and enjoyment of any recreational Common Facilities for the failure of a Member to pay any Assessments when due under the Declaration, or to comply with any other rule or regulation imposed upon such Member, his or her tenants or guests, pursuant to the Governing Documents; provided, however, that any such suspension shall only be imposed after the Member has been afforded the notice and hearing rights more particularly described in Section of the Declaration. Such notice and hearing rights shall not apply to invitees or guests. (b) Discipline of Lessees. Subject to subparagraph (c) below, in the event that any tenant or lessee fails to honor the provisions of any Governing Document, the Association shall be entitled to take such corrective action as it deems necessary or appropriate under the circumstances which may include the temporary or permanent suspension of the tenant's privileges to use any Common Facilities and/or the imposition of fines and penalties against the Owner or tenant, which may include the temporary suspension (up to one year) of the Owner s privileges to use the Common Facilities subject to the due process procedures described in (d) below. (c) Due Process Requirements for Disciplinary Action of Owner-lessor. Except for circumstances in which immediate corrective action is necessary to prevent damage or 8

9 destruction to the Property or to preserve the rights of quiet enjoyment of other Owners, the Association shall have no right to initiate disciplinary action against an Owner-lessor (or the Owner's lessee or tenant) on account of the misconduct of the Owner's lessee or tenant unless and until the following conditions have been satisfied: (i) the Owner has received written notice from the Board, the Association's property manager or an authorized committee of the Board detailing the nature of the lessee's/tenant's alleged infraction or misconduct and advising the Owner of his or her right to a hearing on the matter in the event the Owner believes that remedial or disciplinary action is unwarranted or unnecessary; (ii) the Owner has been given a reasonable opportunity to take corrective action on a voluntary basis or to appear at a hearing, if one is requested by the Owner; and (iii) the Owner has failed to prevent or correct the tenant's objectionable actions or misconduct. Any hearing requested hereunder shall be conducted in accordance with Section 13.06, below. Section Obligations of Owners. Owners of Condominium Units within the Property shall be subject to the following: (a) Owner's Duty to Notify Association of Tenants and Contract Purchasers. Each Owner shall notify the secretary of the Association or the Association's property manager, if any, of the names of any contract purchaser or tenant residing in the Owner's Unit. Each Owner, contract purchaser or tenant shall also notify the secretary of the Association of the names of all persons to whom such Owner, contract purchaser or tenant has delegated any rights to use and enjoy the Property and the relationship that each such person bears to the Owner, contract purchaser or tenant. (b) Contract Purchasers. A contract seller of a Condominium Unit must delegate his or her voting rights as a Member of the Association and his or her right to use and enjoy the Common Area and Common Facilities to any contract purchaser in possession of the Unit. Notwithstanding the foregoing, the contract seller shall remain liable for any default in the payment of Assessments by the contract purchaser until title to the property sold has been transferred to the purchaser. (c) Notification to Prospective Purchasers Regarding Governing Documents. (i) As more particularly provided in California Civil Code section 1368/4525 et seq., as soon as practicable before transfer of title or the execution of a real property sales contract with respect to any Condominium, the Owner thereof must give the prospective purchaser: Rules); (A) a copy of the Governing Documents (including any Operating (B) a copy of the most recent documents distributed by the Association pursuant to California Civil Code section 1365/5300 et seq. (see Article XII of the Bylaws); (C) a true statement ( delinquency statement ) in writing from an authorized representative of the Association as to: (1) the amount of the Association s current regular and special assessments and fees; (2) the amount of any assessments levied upon the Owner s Condominium that remain unpaid as of the date of the delinquency statement and any 9

10 monetary fines or penalties levied upon the Owner s Condominium an unpaid as of the date of the delinquency statement. The delinquency statement shall also include true information on late charges, interest, and costs of collection that, as of the date of the delinquency statement, are or may become a lien against the Owner s Condominium pursuant to Civil Code sections 1367 and /5650 et seq.; (D) a copy or a summary of any notice previously sent to the Owner pursuant to Civil Code section 1363(h)/5850(a), that sets forth any alleged violations of the Governing Documents that remain unresolved at the time of the request; and (E) a statement disclosing any change in the Association's current Regular and Special Assessments and fees which have been approved by the Board but have not become due and payable as of the date the information is provided. (F) If requested by the prospective purchaser, a copy of the minutes of the meetings (excluding executive session meetings) of the Association s Board of Directors, which were conducted during the twelve (12) months prior to the date when the information is provided (ii) Within ten (10) days of the mailing or delivery of a request for the information described in subparagraph (c)(i), above, the Association shall provide the Owner with copies of the requested items. The items required to be made available pursuant to this subparagraph (c) may be maintained in electronic form and the requesting parties shall have the option of receiving them by electronic transmission or in machine readable storage media if the Association maintains the requested items in electronic form. The Association may charge a reasonable fee for this service based upon the Association s actual cost to procure, prepare, and reproduce the requested items. (iii) The provisions of this subparagraph (c), except for those provisions relating to the furnishing of a delinquency statement, shall not apply to any Owner who is subject to the requirements of California Business and Professions Code section (i.e., the obligation to provide prospective purchasers with a California Department of Real Estate Public Report in connection with the sale of a Condominium). (d) Payment of Assessments and Compliance with Rules. Each Owner shall pay when due each Regular, Special, Emergency, and Special Individual Assessment levied against the Owner and his or her Condominium Unit and shall observe, comply with and abide by any and all rules and regulations set forth in, or promulgated by the Association pursuant to, any Governing Document for the purpose of protecting the interests of all Owners or protecting the Common Area and Common Facilities. (e) Discharge of Assessment Liens. Each Owner shall promptly discharge any Assessment lien that may hereafter become a charge against his or her Condominium Unit. (f) Joint Ownership of Condominium Units. In the event of joint ownership of any Condominium Unit, the obligations and liabilities of the multiple Owners under the Governing Documents shall be joint and several. Without limiting the foregoing, this subparagraph (f) shall 10

11 apply to all obligations, duties and responsibilities of Owners as set forth in this Declaration, including, without limitation, the payment of all Assessments. (g) Termination of Obligations. Upon the conveyance, sale, assignment or other transfer of a Condominium Unit to a new Owner, the transferor-owner shall not be liable for any Assessments levied with respect to such Unit which become due after the date of Recording of the deed evidencing the transfer and, upon such Recording, all Association membership rights possessed by the transferor by virtue of the ownership of the Unit shall automatically cease. ARTICLE III HOMEOWNERS ASSOCIATION Section Formation. The Association is a California nonprofit mutual benefit corporation. The Association is charged with the duties and invested with the powers set forth in the Governing Documents, including, but not limited to, control, maintenance and repair of the Common Area and Common Facilities. Section Association Action; Board of Directors and Officers. With the exception of those matters requiring approval of Members under the Governing Documents or California law, the affairs of the Association shall be conducted by or under the direction of the Board of Directors and such officers as the Board may elect or appoint. Except as otherwise provided in the Governing Documents or California law, all matters requiring the approval of Members shall be deemed approved if approved by a Majority of a Quorum of the Members. Section Membership. (a) Qualifications. Each Owner of a Condominium Unit shall be a Member of the Association. An Owner shall hold one (1) membership in the Association for each Condominium Unit he or she owns. Sole or joint ownership of a Unit or interest in it shall be the sole qualification for membership in the Association. Each Owner shall remain a Member of the Association until his or her ownership of, or ownership interest, in all Condominium Units in the Project ceases, at which time the Owner's membership in the Association shall automatically cease. Persons or entities who hold an interest in a Unit merely as security for performance of an obligation are not Members. (b) Voting Rights of Members. Each Member of the Association shall be entitled to one vote for each Unit owned by said Member. When more than one person holds an interest in any Unit all such persons shall be Members, although in no event shall more than one vote be cast with respect to any Condominium Unit. An Owner's voting rights may be temporarily suspended under those circumstances described in Section 13.06, below. Section Transfer of Memberships. Membership in the Association shall not be transferred, encumbered, pledged or alienated in any way, except upon the sale of the Condominium Unit to which it is appurtenant, and then only to the purchaser. In the case of a sale, the membership appurtenant to the transferred Unit shall pass automatically to the purchaser upon Recordation of a deed evidencing the transfer of title. A Mortgagee does not have membership rights until he or she becomes an Owner by foreclosure or deed in lieu thereof. Any 11

12 attempt to make a prohibited transfer of a membership is void. If any Owner fails or refuses to transfer the membership registered in his or her name to the purchaser of the Condominium Unit, the Association shall have the right to record the transfer upon its books and thereupon any other membership outstanding in the name of the seller shall be null and void. Section Assessments. The Association shall have the power to establish, fix and levy Assessments and to enforce payment of such Assessments as more particularly provided in Article IV, below. Any Assessments levied by the Association against its Members shall be levied in accordance with and pursuant to the provisions of this Declaration. Section Powers and Authority of the Association. (a) General Statement of Association Powers. The Association shall have the responsibility of managing, maintaining, and when necessary repairing and replacing the Common Areas and Common Facilities of the Project, and discharging the other duties and responsibilities imposed on the Association by the Governing Documents. In the discharge of such responsibilities and duties, the Association shall have all of the powers of a nonprofit mutual benefit corporation organized under the laws of the State of California in operating and managing the Property and the Project and in otherwise discharging its responsibilities for the benefit of its Members, subject only to such limitations upon the exercise of such powers as are expressly set forth in the Governing Documents. The Association and its Board of Directors shall have the power to do any and all lawful things which may be authorized, required or permitted to be done under and by virtue of the Governing Documents and to do and perform any and all acts which may be necessary or proper for, or incidental to, the exercise of any of the express powers of the Association for the peace, health, comfort, safety or general welfare of the Members in common. The specific powers of the Association and the limitations thereon shall be as set forth in Article IX of the Bylaws. The additional powers and rights described in subparagraphs (b) through (f), below, are not intended to limit the general statement of Association authority set forth in this subparagraph (a), but rather to more particularly describe certain rights and powers that are of particular importance to the proper discharge of the Association s responsibilities to the other Owners and the Project. (b) Association's Limited Right of Entry. (i) Right of Entry, Generally. It is expressly agreed that the right of the Association, or its agents, when necessary, shall have the right to enter any Unit in order to: (A) perform the Association's obligations under this Declaration, including its obligation to enforce the covenants and restrictions set forth herein to construct, maintain and repair Common Facilities as necessary for the benefit of the Common Areas or the Owners in common; (B) to remove any Improvement which is erected or constructed by an Owner or tenant without first receiving approval of the Architectural Committee pursuant to Article V, below; or (C) to make necessary repairs that an Owner has failed to perform which, if left undone, will pose a threat or nuisance to, or cause an unreasonable interference 12

13 with, the Owners in common or any portions of the Project which the Association is obligated to repair or maintain. (ii) Limitations on Exercise of Right. The Association's right of entry pursuant to this subparagraph (b) shall be subject to the following: (A) The right of entry may be exercised immediately and without prior notice to the Owner or resident in case of an emergency originating in or threatening the Owner s Unit where entry is required or any adjoining Units or Common Areas. The Association's work may be performed under such circumstances whether or not the Owner or his or her lessee is present. (B) In all non-emergency situations involving routine repair and/or maintenance activities, the Association or its agents shall furnish the Owner or his or her lessee with at least twenty-four (24) hours prior written notice of its intent to enter the Unit, specifying the purpose and scheduled time of such entry, and shall make every reasonable effort to perform its work and schedule its entry in a manner that respects the privacy of the persons residing in the Unit. This obligation to provide prior notice can be modified by any rental management contract between the Association and an Owner. For purposes of this Section, written notice includes notice by facsimile, or other means of electronic transmission to the Unit Owner so long as a record is created to confirm that the transmission has been received and that the recipient s address or facsimile number is that of the Unit Owner. (C) In all non-emergency situations involving access by the Association for purposes of enforcing the Governing Documents against an Owner in default, the Association's entry shall be subject to observance of the notice and hearing requirements imposed by Section 13.06, below. (c) Designation of Association as Attorney-in-Fact. The Association is hereby irrevocably appointed as the attorney-in-fact for the Owners of each and every Unit to: (i) manage, control and deal with the interest of such Owners in the Common Area so as to permit the Association to fulfill all of its duties and obligations hereunder and to exercise all of its rights hereunder; (ii) to delegate property management functions and responsibilities to a property manager or management company; (iii) deal with the Property and the Project upon their destruction or obsolescence as hereinafter provided; and (iv) to deal with and handle insurance claims and insurance proceeds, as provided in Article X, below, and condemnation and condemnation awards, as provided in Article XII, below. The acceptance by any person or entity of any interest in any Unit shall constitute an appointment of the Association as the Owner's attorney-in-fact as provided above. (d) Management Contracts. The Association shall have the authority to contract with a Manager for the performance of bookkeeping, maintenance and repair and for conducting other activities on behalf of the Association as may be determined by the Board. Section Association Action; Board of Directors and Officers. Except as to matters which under the Governing Documents require the approval of Members, the affairs of the Association shall be conducted by the Board and such officers as the Board may elect or 13

14 appoint. Such election or appointment shall be in accordance with this Declaration and the Bylaws. Section Association Rules (a) Rule Making Power. The Board may, from time to time and subject to the provisions of this Declaration, propose, enact and amend rules and regulations of general application to the Owners ( Association Rules ). The Association Rules may concern, but need not be limited to: (i) matters pertaining to use of the Common Area and Common Facilities; (ii) architectural control iii) regulation of pet, parking, signs, collection and disposal of refuse and other matters subject to regulation and restriction under Article VIII, below; (iv) collection of delinquent Assessments; (v) minimum standards of maintenance of Units in the Project; (vi) the conduct of disciplinary proceedings in accordance with Section 13.06, below; (vii) Architectural Rules adopted pursuant to Section 5.05, below; and (viii) and any other subject or matter within the jurisdiction of the Association as provided in the Governing Documents. Notwithstanding the foregoing grant of authority, the Association Rules shall not be inconsistent with or materially alter any provision of the Governing Documents or the rights, preferences and privileges of the Owners thereunder. In the event of any material conflict between any Association Rule and the provisions of any other Governing Document, the conflicting provisions contained in the other Governing Document shall prevail. All Association Rules specified in Civil Code section (a) shall only be adopted, amended and repealed (as the case may be) in good faith and in substantial compliance with this Declaration and California Civil Code sections through /4350 through 4370, or any successor statute governing rule adoption. The Association shall adopt operating rules for elections as required by law (Civil Code section /5105 et seq.). (b) Distribution of Rules. A copy of the Association Rules, as they may from time to time be adopted, amended or repealed, shall be mailed or otherwise delivered to each Owner. (c) Adoption of Other Association Rules. Any other Association Rules other than those certain rules specified in Civil Code sections (a) may be adopted or amended from time to time by majority vote of the Board; provided, however, that no Association Rule or amendment thereto shall be adopted by the Board until at least thirty (30) days after the proposed rule or rule amendment has been distributed in writing to each Member, along with a description of the purpose and effect of the proposed Association Rule or amendment thereto. The notice describing the proposed rule or amendment shall also set forth the date, time and location of the Board meeting at which action on the proposal is scheduled to be taken. Any duly adopted rule or amendment to the Association Rules shall become effective immediately following the date of adoption thereof by the Board, or at such later date as the Board may deem appropriate. Any duly adopted rule or rule amendment shall be distributed to the Owners by mail or personal delivery. (i) Prohibition on Adoption of Certain Rules. In accordance with Civil Code section /4730, any rule or regulation of an association that arbitrarily or unreasonably restricts an Owner's ability to market his or her Condominium Unit is void. Without limiting the foregoing, in no event shall the Association be entitled to impose an Assessment or fee in 14

15 connection with the marketing of an Owner's Condominium in an amount that exceeds the Association's actual and direct costs (see also, Section 4.01(e), below). (d) Breach of Rules or Restrictions. Any breach of the Association Rules or of any other Governing Document provision shall give rise to the rights and remedies set forth in Section 13.06, below. Section Limitation on Liability of the Association's Directors and Officers. (a) Claims Regarding Breach of Duty. No director or officer of the Association (collectively and individually referred to as the Released Party ) shall be personally liable to any of the Members or to any other person, for any error or omission in the discharge of his or her duties and responsibilities or for his or her failure to provide any service required under the Governing Documents; provided that such Released Party has, upon the basis of such information as he or she possessed, acted in good faith, in a manner that such person believes to be in the best interests of the Association and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. Without limiting the generality of the foregoing, this standard of care and limitation of liability shall extend to such matters as the establishment of the Association's annual financial budget, the funding of Association capital replacement and reserve accounts, repair and maintenance of Common Areas and Common Facilities and enforcement of the Governing Documents. (b) Other Claims Involving Tortious Acts and Property Damage. No person who suffers bodily injury (including, without limitation, emotional distress or wrongful death) as a result of the tortious act or omission of a volunteer director or volunteer officer of the Association shall recover damages from such director or officer if all of the following conditions are satisfied: (i) The director or officer owns no more than two (2) Units; (ii) The act or omission was performed within the scope of the volunteer director's or officer's Association duties; (iii) (iv) The act or omission was performed in good faith; The act or omission was not willful, wanton, or grossly negligent; (v) The Association maintained and had in effect at the time the act or omission occurred and at the time a claim is made general liability insurance with coverage of at least One Million Dollars ($1,000,000.00). The payment of actual expenses incurred by a Board member or officer in the execution of such person's Association duties shall not affect such person's status as a volunteer Board member or officer for the purposes of this section. The provisions of this subparagraph (b) are intended to reflect the protections accorded to volunteer directors and officers of community associations pursuant to California Civil Code section In the event said Civil Code 15

16 section is amended or superseded by another, similar provision of the California statutes, this subparagraph (b) shall be deemed amended, without the necessity of further Member approval, to correspond to the amended or successor Civil Code provision. ARTICLE IV ASSESSMENTS Section Assessments Generally. (a) Covenant to Pay Assessments. Each Owner of one or more Units, by acceptance of a deed or other conveyance therefor (whether or not it shall be so expressed in such deed or conveyance), covenants and agrees to pay to the Association any: (i) Regular Assessments; (ii) Special Assessments; (iii) Emergency Assessments; and (iv) Special Individual Assessments duly imposed in accordance with this Article. (b) Extent of Owner's Personal Obligation for Assessments. All Assessments, together with late charges, interest, and reasonable costs (including reasonable attorneys' fees) for the collection thereof shall be a debt and a personal obligation of the person who is the Owner of the Unit at the time the Assessment is levied. Each Owner who acquires title to a Unit (whether at judicial sale, trustee's sale or otherwise) shall be personally liable only for Assessments attributable to the Unit which become due and payable after the date that the person acquires title. Accordingly, when a person acquires title to a Unit, the new Owner shall not be personally liable for delinquent Assessments of prior Owners of the same Unit unless the new Owner expressly assumes the personal liability of a prior Owner. However, if the acquired Unit is conveyed subject to a valid lien for delinquent Assessments and related costs of collection (i.e., the lien is not removed from record prior to close of escrow in the sale of the Unit), the Association may continue to exercise its foreclosure remedies against the Unit, regardless of the change of ownership, and/or the Association may pursue its collection remedies against the prior Owner, individually. (c) Creation of Assessment Lien. All Assessments, together with late charges, interest, and reasonable costs (including reasonable attorneys' fees) for the collection thereof, shall be a charge on the Unit and may become a lien upon the Unit against which such Assessment is made from and after the date that the Association causes to be Recorded in the Office of the County Recorder a Notice of Delinquent Assessment pursuant to Section 4.10(b)(v), below. Any lien for unpaid Assessments created pursuant to the provisions of this Article may be subject to foreclosure to the extent and as provided in Section 4.10(b) below. (d) No Avoidance of Assessment Obligations. No Owner may exempt himself/herself from personal liability for Assessments duly levied by the Association, nor release the Owner s Unit from the liens and charges hereof by waiver of the use and enjoyment of the Common Area or any facilities thereon or by abandonment or non-use of his/her Unit or any other portion of the Property. (e) Improper Assessment. The Association shall not impose or collect an Assessment, penalty or fee which exceeds the amount necessary for the purpose or purposes for which it is levied. 16