REGULAR SYSTEM AFTER RECORDATION, RETURN BY MAIL ( ) PICKUP ( ) TO:

Transcription

1 ELADSUORT-LARTNEC scod s(on AWAKURUF I iawi DMA.uaiaM akotom otog uaiaw rebil UAIAW RAEL RELGEIS ECINREB UAIAW - 01:30 IHAUAP '1 R-1116 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED APR 30, 1993 PM Doc ) /s/ S. REGISTRAR OF CONVEYANCES CONVEYANCE TAX: $0.00 LAND COURT SYSTEM REGULAR SYSTEM AFTER RECORDATION, RETURN BY MAIL ( ) PICKUP ( ) TO: JOHN A. MORRIS, ESQ.,, & Morris Suite 502, okesahcenter 820 inalilimstreet Honolulu, HI Tel: (801) Morris \ FIRST RESTATEMENT OF THE GARDEN VILLA AMENDED DECLARATION OF CONDOMINIUM PROPERTY REGIME UNDER THE CONDOMINIUM PROPERTY ACT WHEREAS, THE TRUSTEES OF THE ESTATE OF BISHOP, herein called the "Lessor," and CENTRAL OAHU LAND CORPORATION, a Hawaii corporation, and PROPERTIES, INC., a Delaware corporation authorized to do business in Hawaii, which corporations are associated in a joint venture known as, herein called "Developer", submitted certain parcels of land located at, Ewa, City and County of Honolulu, State of Hawaii, to Declarations of Condominium Property Regimes, as follows: (a) Lot 2, area 110,024 square feet, as shown on File Plan 1655 filed in the Bureau of Conveyances of the State of Hawaii, under the name of PHASE 1, GARDEN VILLA (being FHA Project No ), which Declaration was dated August 7, 1980 and recorded in said Bureau of Conveyances in at Page 674 in accordance with plans filed in said Bureau as Condominium Map No. 749;

2 ;IV-I IV-I (b) Lot 1, area 43,108 square feet, as shown on said File Plan 1655, under the name of PHASE II, WAIAU GARDEN VILLA (being FHA Project No ), which Declaration was dated August 7, 1980 and recorded in said Bureau of Conveyances in Liber at Page 732, in accordance with plans filed in said Bureau as Condominium Map No. 750; (c) Lot 3, area 62,999 square feet, as shown on said File Plan 1655, under the name of PHASE III, WAIAU GARDEN VILLA (being FHA Project No ), which Declaration was dated September 26, 1980 and recorded in said Bureau of Conveyances in Liber at Page 298, in accordance with plans filed in said Bureau as Condominium Map No. 761; (d) Lot 4, area 52,761 square feet, as shown on said File Plan 1655, under the name of PHASE IV, WAIAU GARDEN VILLA (being FHA Project No ), which Declaration was dated September 26, 1980 and recorded in said Bureau of Conveyances in Liber at Page 357, in accordance with plans filed in said Bureau as Condominium Map No. 762; (e) Lot 6, area 105,792 square feet, as shown on said File Plan 1655, under the name of PHASE V, WAIAU GARDEN VILLA (being FHA Project No ), which Declaration was dated December 1, 1980 and recorded in said Bureau of Conveyances in Liber at Page 1, in accordance with plans filed in said Bureau as Condominium Map No. 781; and (f) Lot 5, area 50,548 square feet, as shown on said File Plan 1655, under the name of PHASE VI, WAIAU GARDEN VILLA (being FHA Project No ), which Declaration was dated December 1, 1980 and recorded in said Bureau of Conveyances in Liber at Page 55, in accordance with plans filed in said Bureau as Condominium Map No (the Condominium Maps above referred to are herein collectively referred to as the "Condominium Map"); WHEREAS, pursuant to a Certificate of Merger, Phases were merged into one single project to be known as WAIAU GARDEN VILLA without reference to Phases WHEREAS, the aforesaid Declarations provided Lessor and Developer with the irrevocable right to amend the Declaration for each phase in its entirety for the sole purpose of showing the merged project with a consolidated description of the land, buildings, apartments, common elements, limited common elements and -2-

3 common interests, without otherwise changing the form or content of such Declarations and By-Laws except for amendments required by law; WHEREAS, Lessor and Developer recorded the Waiau Garden Villa Amended Declaration of Condominium Property Regime Under the Condominium Property Act, dated October 21, 1981, for the merged projects in Liber 16016, page 1, (the "Declaration") in said Bureau; (See Endnotes 1 and 2) WHEREAS, Section 514A-82.2, Hawaii Revised Statutes, empowers the Board of Directors of the Association of Apartment Owners of the Waiau Garden Villa Condominium (the "Association"), which was established by the By-Laws attached to the Declaration, to restate the Declaration to include therein any amendments to it, and to conform its provisions to the provisions of Chapter 514A, Hawaii Revised Statutes, and any other statute, ordinance, rule, or regulation enacted by any governmental authority, by a resolution adopted by the Board of Directors; and WHEREAS, at a meeting duly held on January 12, 1993, the Board of Directors resolved to restate the Declaration, pursuant to Sections 514A-82.2(a) and (b), Hawaii Revised Statutes, in the manner set forth herein and further resolved (1) that the restatement has been adopted for the purposes of information and convenience; and (2) that in the event of any conflict the restated Amended Declaration shall be subordinate to the aforesaid statute; and WHEREAS, this document sets forth the corresponding provisions of the original Amended Declaration, as amended, and supersedes it and all prior amendments thereto; NOW THEREFORE, the Declaration is hereby restated to read as follows: (NOTE: Paragraphs 5.06 and 24 of the original Declarations have been omitted herein and paragraph has been amended herein because such paragraphs contain references to the park and recreational facilities situate on Lot 5 of File Plan Said Lot 5 has been condemned by the City and County of Honolulu for public use as set forth in Judgment and Final Order of Condemnation, filed with Civil No (Eminent Domain) in the First Circuit Court of the State of Hawaii on December 18, 1980 an December 22, 1980, respectively.) (See Endnote 3) 1. Declaration. In order to create a condominium project consisting of said land and improvements (herein called the "project") and to be known as WAIAU GARDEN VILLA (being FHA Project Nos , , , , , and ), the Lessor and Developer hereby submit said property to the Condominium Property Regime established -3-

4 by the Condominium Property Act, Chapter 514A, Hawaii Revised Statutes, as amended, and in furtherance thereof make the hereinafter stated declarations as to divisions, limitations, restrictions, covenants and conditions and hereby declare and agree that said property is held and shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied and improved subject to said declarations, which declarations shall constitute covenants running with the land and shall be binding on and for the benefit of the parties hereto, their respective successors and assigns, and all subsequent owners and lessees of all or any part of the project and their respective successors, heirs, personal representatives, executors, administrators and assigns. 2. Description of Land. The land submitted to the Condominium Property Regime is more particularly described as follows: ALL of those certain parcels of land (being portions of Royal Patent 4475, Land Commission Award 7713, Apana 35 to V. Kamamalu situate at Waiau, Ewa, City and County of Honolulu, State of Hawaii, being Lots 1 through 6, inclusive, containing a total area of approximately 425,232 square feet, as shown on File Plan 1655 filed in the Bureau of Conveyances of the State of Hawaii. SUBJECT, HOWEVER, to that certain Declaration of Restrictive Covenants dated November 30, 1979, recorded in said Bureau of Conveyances in Liber at Page 777, as amended by instrument dated September 4, 1980, recorded in said Bureau of Conveyances in Liber at Page 666, which applies to that certain park and recreation area of approximately 23,597 square feet, as shown on said Condominium Map and also referred to in Paragraph (5.06) hereof. SUBJECT, ALSO, to all easements shown on said File Plan or as now or hereinafter required by Lessor and excepting and reserving all rights-of-way over, across and under said easements now or hereafter required by Lessor or granted to any public utility or governmental authority to construct, install, operate or repair lines and other transmission facilities and appurtenances for electricity, gas, telephone, water, sewer, drainage and similar public services and utilities and the right to enter for such purposes and to trim any trees in the way of such lines. -4-

5 .stnemtrapa B e 3. Description of Buildings.The twenty (20) residential buildings constructed on said land, as shown on said Condominium Map and being designated thereon by the numbers Building 1 through Building 20, inclusive, are two and one-half story structures constructed principally of double wall construction, with drywall interiors and masonite exteriors, on concrete and wooden floors, and contain a total of two hundred apartments and a resident manger's apartment (Apartment No. 81). In addition, the building as shown and designated on said Condominium Map as the recreation center is a wooden building on a concrete slab with an area of 1248 square feet containing a storage room, pool equipment room, men's restroom and women's restroom. The recreation building is enclosed on three sides with the fourth side facing the swimming pool open except for a 3 foot 10 inch railing. There is a swimming pool within the recreation center. The recreation center is enclosed with a redwood fence. 4. (4.01) Two Hundred (200) freehold estates are established in the spaces within the perimeter walls, floors and ceilings of the 200 apartments in said buildings. The 200 apartments shall not include the undecorated or unfinished surfaces of the perimeter walls or of the interior load-bearing walls, the floors and perimeter ceilings surrounding each apartment, or any pipes, wires, ducts, conduits, or other utility or service lines running through such apartments which are utilized for or serve more than one apartment, all of which are common elements as provided in paragraph 5 hereof. Each apartment shall include the walls and partitions which are not load-bearing and which are within its perimeter walls; doors and door frames; windows and window frames; the inner decorated or finished surfaces of walls, floors and ceilings, adjoining and connected thereto; lanai; and all fixtures originally installed therein. Notwithstanding the designation of the limits of the apartments, the square footage of each respective apartment as enumerated below is measured from the exterior face of exterior walls and the center line of party walls, and no reduction is made to account for interior load-bearing walls, ducts, vent shafts and the like, located within the perimeter walls. (4.02) All apartments are numbered and located as shown on said Condominium Map. (4.03) Each of the 200 apartments has immediate access or through a hall and stairway to a walkway on the grounds of the Project. (4.04) Each of the 200 apartments is one of four (4) types, designated Models A, Exhibit "A" attached hereto and incorporated herein by reference., and C as enumerated in -5-

6 (4.05) The number of rooms, approximate area and total number of each model in the project are enumerated in said Exhibit "A". 5. Common Elements. One freehold estate is designated in all of the remaining portions and appurtenances of the project, herein called the "common elements," including specifically, but not limited to: (5.01) Said land in fee simple. (5.02) All foundations, floor supports, columns, girders, beams, supports, unfinished perimeter walls and loadbearing walls and roofs of the residential buildings. (5.03) All yards, grounds and landscaping, roads, walkways, load areas, parking areas, driveways and all refuse facilities. (5.04) All ducts, electrical equipment, wiring, pipes and other central appurtenant transmission facilities, installations over, under and across the project which serve more than one apartment for services such as power, light, water, gas, sewer, telephone and radio and television signal distribution. (5.05) Any and all apparatus and installations of common use and all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use. (5.06) An easement for park and recreational purposes in the park and recreation area of approximately 23,597 square feet, as shown on said Condominium Map, together with the recreation center consisting of a building with men's and women's restrooms, storage room, pool equipment room, outdoor shower, and swimming pool, subject to and with the benefit of that certain Declaration of Restrictive Covenants dated November 30, 1979, which was recorded in said Bureau of Conveyances in Liber at Page 777, as amended by instrument dated September 4, 1980, recorded in said Bureau of Conveyances in Liber at Page 666. In the event that said park and recreation area shall be conveyed to or condemned by the City and County of Honolulu, this easement shall automatically terminate. (See Endnote 4) (5.07) Apartment No. 81 in Building 9 together with Parking Space No. 131 for the use of the resident manager. (5.08) The storage facility located in that area between the swimming pool and the south parking lot consists of, (1) a two-story building containing an upper level enclosed floor area of 314 square feet, an upper level open air work deck of 190 square feet, and a lower level storage area of 171 square feet, for -6-

7 a total area of 675 square feet; and (2) a paint locker located adjacent to the storage facility, and all as more particularly described in the storage facility drawings filed with the Bureau of Conveyances, State of Hawaii with Condominium Map No. 49. (See Endnote 5) 6. Limited Common Elements. Certain parts of the common elements, herein called and designated "limited common elements," are set aside and reserved for the exclusive use of certain apartments and such apartments shall have appurtenant thereto exclusive easements for the use of such limited common elements. The limited common elements so set aside and reserved are as follows: (6.01) One (1) or more automobile parking spaces shall be assigned to each apartment upon the original conveyance thereof and shall be appurtenant to and for the exclusive use of such apartment. The initial parking space assignment for each apartment is shown on Exhibit "B" attached hereto and incorporated herein by reference. Each apartment shall always have at least one parking space appurtenant to it but otherwise any automobile parking space easement may be transferred form apartment to apartment in the project. (6.02) Privacy yard areas as shown on said Condominium Map. (6.03) Common entry ways outside of each main entrance to each building shall be appurtenant to the apartments located in that building. (6.04) All other common elements of the project which are rationally related to less than all of said apartments shall be limited to the use of such apartments. 7. Other Easements.In addition to the exclusive easements established in the limited common elements, the apartments shall also have and be subject to the following easements: (7.01) Each apartment shall have appurtenant thereto nonexclusive easements in the common elements designed for such purpose for ingress to, egress from, utility services for and support of such apartment; in the other common elements for use according to their respective purposes, subject always to the exclusive or limited use of the limited common elements as herein provided; and in all other apartments of its building for support. (7.02) If any part of the common elements encroaches upon any apartment or limited common elements, a valid easement for such encroachment and the maintenance thereof, so long as it continues, shall and does exist. In the event any buildings -7-

8 3( 0 B i epyt of the project shall be partially or totally destroyed and then rebuilt, minor encroachments of any parts of the common elements due to construction shall be permitted, and valid easements for such encroachments and the maintenance thereof shall exist. (7.03) Each apartment shall be subject to an easement in favor of the owners of all other apartments for access to any common elements located in such apartment. 8. Common Interest. Each of the two hundred (200) apartments shall have appurtenant thereto an undivided percentage interest in all the common elements of the project, such interest being defined and referred to herein as the "common interest" and the same proportionate share in all common profits and expenses of the project and for all other purposes, including voting, as follows: Apartment Undivided Interest Three Bedroom, 2 Bath Walk-up Unit Model A Two Bedroom, 2 Bath End Unit % % Model B 0 second floor unit) Two Bedroom, 2 Bath Interior Unit Model (B 1-2, second floor unit) Three Bedroom, 1-1/2 Bath End Unit Model C % % 9. Purposes and Restrictions. The purposes for which said building and other improvements and each of the apartments are intended and shall be restricted as to use are as follows: (9.01) The common interest and easements appurtenant to each apartment shall have a permanent character, shall not be altered without the consent of all owners of apartments affected thereby and Lessor as expressed in an amendment to this Declaration duly recorded, except as provided in Paragraph 8 above, shall not be separated from such apartment and shall be deemed to be conveyed or encumbered with such apartment even though not expressly mentioned or described in the conveyance or other instrument; excepting, however, the exclusive easements for the use of parking stalls. As long as at all times (or, in the case of an exchange of parking stalls between apartments, immediately,2- -8-

9 subsequent to such an exchange) there shall be at least one (1) parking stall appurtenant to each apartment, any such exclusive easement for the use of a parking stall may be conveyed to another apartment owners by a written instrument expressly identifying the apartment to which the parking stall is appurtenant as well as the apartment to which the parking stall will become appurtenant, which written instrument shall be denominated as an amendment of this Declaration. Such amendment need only be executed by lessees directly affected, their Mortgagees and Lessor. The Lessor's joinder in such amendment will be necessary, but such joinder will not unreasonably be withheld, although a reasonable service charge may be made therefor. To the extent that the joinder of apartment owners in addition to those directly affected may be required in order to validate the amendment of declaration for the limited purpose of transferring such easements, such joinder shall be accomplished by power of attorney from each of the owners not affected to the affected owners, the acceptance of ownership of an apartment subject to this Declaration being a grant of such power and the grant, being coupled with an interest, being irrevocable. The transfer and amendment of declaration shall be effective upon recording of the same in the Bureau of Conveyances of the State of Hawaii. A copy of said conveyance and amendment of declaration shall be given to both the Lessor and the Association by the affected owners within fifteen (15) days of the filing thereof. (9.02) The common elements shall remain undivided, and no right shall exist to partition or divide any part thereof except as provided by said Condominium Property Act. (9.03) The apartments shall be occupied and used only for residential purposes and no apartment shall be used as a tenement or rooming house or for or in connection with the carrying on of any business, trade or profession whatsoever. The respective apartments shall not be rented by the owners thereof for transient or hotel purposes, which shall be defined as (a) rental for any period less than thirty (30) days; or (b) any rental in which the occupants of the apartment are provided customary hotel services, such as room service for food and beverage, maid service, furnishing laundry and linen, and bellboy service. Other than the foregoing obligations and the restriction set forth in Paragraph (9.04), the owners of the respective apartments shall have the absolute right to lease same provided that said lease is made subject to the covenants and restrictions contained in this Declaration and further subject to the By-Laws and Regulatory agreement attached hereto. (9.04) The apartments in the project or any interest therein shall not be sold, transferred, conveyed, leased, occupied, rented or used for or in connection with any time-sharing purpose or under any time-sharing plan, arrangement or program, including without limitation any so-called "vacation license," travel club membership" or "time-interval ownership" arrangement. -9-

10 The term "time sharing" as used herein shall be deemed to include, but is not limited to, any plan, program or arrangement under which the right to use, occupy, own or possess an apartment or apartments in the project rotates among various persons on a periodically recurring basis according to a fixed or floating interval or period of time, whether by way of deed, lease, association or club membership, license, rental or use agreement, co-tenancy agreement, partnership or otherwise. (9.05) The owner of each apartment upon acquiring title thereto automatically shall become a member of the Association of Apartment Owners, herein called the "Association," and shall remain a member thereof until such time as his ownership of such apartment ceases for any reason, at which time his membership in the Association automatically shall cease; provided, however, that if and to the extent a lease of any apartment registered under Chapter 501 or recorded under Chapter 502 of the Hawaii Revised Statutes (filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii or recorded in the Bureau of Conveyances of the State of Hawaii) so provides, the lessee of such apartment shall be deemed to be the owner thereof. (9.05) a. At his/her expense, an owner of an apartment may install window security bars over the windows of that owner's apartment after receiving approval by a majority of the members of the Board of Directors at any duly called meeting of the Board. The Board of Directors shall base the approval upon a written set of standards which shall be established by the Board no later than 30 days from the effective date of this Amendment. b. The standards shall include specifications related to design, color, size, general appearance, and location of the security bars. A copy of the standards shall be kept at the Lessor's and Managing Agent's office, and shall be provided to an owner upon request. c. Prior to installing any window security bars and at the same time that Board approval is requested, each and every owner of the apartment that will have any windows covered by security bars shall present an executed release, waiver of liability and indemnification agreement indemnifying the Lessor and the Association for the installation, construction, use and maintenance of the security bars in a form approved by the Board of Directors. The form of the agreement shall be established by the Board no later than 30 days from the effective date of this Amendment. A copy of the form of the agreement shall be kept at the Lessor's and Managing Agent's office, and shall be provided to an owner upon request. The Managing Agent shall be the custodian of the original executed agreements. -10-

11 d. Prior to removing any window security bars from an apartment, each and every owner of the apartment so affected will obtain the approval by a majority of the members of the Board of Directors at any duly called meeting of the Board. Said approval shall not be unreasonably withheld. Said removal shall be at the sole expense of all of the owners of the apartment and the owners shall indemnify the Association for any and all damages related to the removal including personal and property damages. (See Endnote 6) 10. Administration. Administration of the project shall be vested in the Association, consisting of all apartment owners of the project, in accordance with the By-Laws of the Association attached to the original Declaration as Exhibit "C" and now recorded separately, and shall be subject to the terms of the Regulatory Agreement, the form of which is attached to the original Declaration as Exhibit "D". (See Endnote 7) Immediately after this Declaration is recorded in the Bureau of Conveyances of Hawaii and/or filed with the Assistant Registrar of the Land Court of Hawaii, the Association and the Federal Housing Commissioner shall execute and the Association shall record and/or file the Regulatory Agreement in said place or places. Operation of the project and maintenance, repair, replacement and restoration of the common elements, and any additions and alterations thereto, shall be in accordance with the provisions of said Condominium Property Act, this Declaration, the By-Laws and the Regulatory Agreement, and specifically but without limitation the Association shall: (10.01) Make, build, maintain and repair all fences, sewers, drains, roads, curbs, sidewalks and parking areas which may be required by law to be made, built, maintained and repaired upon or adjoining or in connection with or for the use of the project or any part thereof. Upon the request by a handicapped person, the Lessor and Association shall approve the construction of, or renovations to the common areas, limited common areas, or easements to accommodate handicapped persons as required under State and Federal law. The handicapped person making said request shall be responsible for construction of, or renovations to the common areas, limited common areas, or easements to accommodate handicapped persons as required under State and Federal law including the expense of such construction or renovation. (See Endnote 8) (10.02) Keep all common elements of the project in a strictly clean and sanitary condition, and observe and perform all laws, ordinances, rules and regulations now or hereafter made by any governmental authority for the time being applicable to the project or the use thereof. (10.03) Well and substantially repair, maintain, preserve, amend and keep all common elements of the project, including without limitation the buildings thereof, with all

12 necessary reparations and amendments whatsoever in good order and condition except as otherwise provided herein, and maintain and keep said land and all adjacent land between any street boundary of the project and the established curb or street line in a neat and attractive condition and all trees, shrubs and grass thereon in good cultivation and replant the same as may be necessary, and repair and make good all defects in the common elements of the project herein required to be repaired by the Association, of which notice shall be given by any owner or his agent, within 30 days after the giving of such notice. (10.04) Not make or suffer any strip or waste or any unlawful, improper, or offensive use of the project. (10.05) Not erect or place on the project any building or structure, including fences and walls, nor make additions or structural alterations to, or exterior changes of, any common elements of the project, nor place or maintain thereon any signs, posters or bills whatsoever, except in accordance with plans and specifications, including detailed plot plan, prepared by a licensed architect if so required by Lessor, first approved in writing by Lessor and also approved by a majority of apartment owners (or such larger percentage as required by law or this Declaration) including all owners of apartments thereby directly affected, as determined by the Board, and complete any such improvements diligently after commencement thereof. (See Endnote 9) (10.06) Not commit any act or neglect whereby the project or any part thereof at any time becomes subject to any attachment, judgment, lien, charge or encumbrance whatever. (10.07) Before commencing or permitting construction of any improvement to the project, obtain and deposit with Lessor a bond naming as obligees Lessor and collectively all apartment owners as their respective interests may appear with a responsible corporate surety authorized to do business in the State of Hawaii, which bond shall guarantee completion of such construction in accordance with the contract therefor free and clear of all mechanics' and materialmen's liens and shall be in a penal sum not less than one hundred per cent (100%) of the cost of such construction. (See Endnote 10) (10.08) Have the right, to be exercised by its Board of Directors (herein called the "Board") or its designee, to enter any apartments and limited common elements from time to time during reasonable hours as may be necessary for the operation of the Project or for making emergency repairs therein required to prevent damage to any apartments or common elements or for the installations, repair or replacement of any common elements, -12-

13 including the right to enter any apartment in case of any emergency originating in or threatening such apartment, whether or not the owner or tenant of such apartment is present. (10.09) Observe any setback lines affecting the project and shall not erect, place, or maintain any building or structure whatever between any street boundary of the project and any setback line along such boundary except approved fences or walls. (10.10) Not erect, place or maintain any television or other antennas on said project visible from any point outside of the project. 11. Managing Agent and Service of Process. Operation of the project shall be conducted for the association by a responsible corporate Managing Agent who shall be appointed by the Association in accordance with the By-Laws except that the initial Managing Agent shall be appointed by the Developer. The Managing Agent is hereby authorized to receive service of legal process in all cases provided in said Condominium Property Act. In addition, process may be served upon any member of the Board of Directors of the Association who has a residence or place of business within the City and County of Honolulu, State of Hawaii. TROPIC SHORES REALTY, LTD., whose principal place of business and post office address is 33 South King Street, Suite 206, Honolulu, Hawaii is hereby designated as the agent to receive service of process until such time as the Board of Directors of the Association is elected. 12. Common Expenses. (12.01) All charges, costs, and expenses incurred by the Association for or in connection with the administration of the project, including, without prejudice to the generality of the foregoing, operation of the project and maintenance, repair, rebuilding, and restoration of the common elements, including the park and recreational facilities mentioned in Paragraph (5.06), and any additions and alterations thereto; all labor, services, materials, utility services and equipment therefor; all liability whatever for loss or damage arising out of or in connection with the common elements or any accident, fire, or any nuisance thereon; and all premiums for fire and extended coverage and liability insurance required herein with respect to the project; and the cost of all utility services, including water, electricity and gas, garbage disposal and any other similar service unless separately metered; shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests. Rent and real property taxes and special assessments referred to in Section 514A-6, Hawaii Revised statutes as amended, shall not be common expenses of the condominium property regime hereby created and no payments thereof shall be -13-

14 payments of such common expenses. The Board shall from time to time assess the common expenses against all the apartments in their respective proportionate shares, and the unpaid amount of such assessments against any apartment shall constitute a lien against such apartment which may be foreclosed by the Board or Managing Agent as provided by said Condominium Property Act, provided that 30 days prior written notice of intention to foreclose shall be mailed, postage prepaid, to the Lessor and all other persons having any interest in such apartment as shown in the Association's record of ownership. All assessments of common expenses attributable to casualty and liability insurance, when collected, shall be escrowed separately and used only for insurance premiums. (12.02) No apartment owner may exempt himself from liability for his contribution toward the common expenses by waiver of the use or enjoyment of any of the common elements or by abandonment of his apartment. (12.03) All sums chargeable as common expenses to any apartment but unpaid shall constitute a lien on such apartment prior to all other liens, except only (1) liens for taxes and assessments lawfully imposed by governmental authority against such apartment, and (2) liens for sums unpaid on mortgages of record recorded prior to the recordation of a notice of the Association's lien. Such lien may be foreclosed by suit by the Association or the Managing Agent on its behalf, in like manner as a mortgage or real property, provided that thirty (30) days' prior written notice of intention to foreclose shall be mailed by registered mail to Lessor, mortgagees of record and all other persons having any interest in such apartment as shown by the Association's records. The Managing Agent, acting on behalf of the Association and as directed by the Board of Directors, shall be entitled to bid on such apartment at foreclosure sale and to acquire, hold, lease, mortgage, and convey such apartment. Suit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing such expenses. (See Endnote 11) (12.04) When the mortgagee of a mortgage of record or other purchaser of any apartment acquires title to such apartment as a result of a forfeiture or as a result of foreclosure of the mortgage, they and their respective heirs, successors, legal representatives and assigns shall not be liable for the share of the common expenses or assessments chargeable to such apartment which became due prior to such acquisition of title. Such unpaid share shall be deemed common expenses collectible from all apartment owners, including such mortgagee or such other purchaser and their respective heirs, successors, legal representatives, and assigns. -14-

15 13. Compliance with Declaration, By-Laws and Regulatory Agreement. All apartment owners, their tenants, families, servants and guests, and any other persons who may in any manner use the project, shall be bound by and comply strictly with the provisions of this Declaration, the By-Laws of the Association, the Regulatory Agreement and all agreements, decisions and determinations of the Association as lawfully made or amended from time to time, and failure to comply with any of the same shall be grounds for an action to recover sums due, for damages or injunctive relief, or both, maintainable by the Board or Managing Agent on behalf of the Association or, in a proper case, by any aggrieved apartment owners. (See Endnote 12) 14. Insurance - Casualty and Liability. (14.01) The Board, on behalf of the Association, at its common expense, shall purchase and at all times keep all buildings, improvements and fixtures of this project, including the common elements and, whether or not part of the common elements, all exterior and interior walls, exterior glass, floors and ceilings, in accordance with the as-built condominium plans and specifications, (See Endnote 13) insured against loss or damage by fire and such other hazards with extended coverage (including flood insurance under the provisions of the federal Flood Disaster Protection Act of 1973, if the property is located in an identified flood hazard area as designated by the federal Department of Housing and Urban Development) in an insurance company authorized to do business in Hawaii having a financial rating by Best's Insurance Reports of Class VI or better, in an amount sufficient to provide for the full repair or full replacement thereof without deduction for depreciation, with an inflation guard endorsement and a water damage endorsement, in the event of such loss of apartments and appurtenant common interests, in the name of the Association and naming Lessor as additional assured, and payable in case of loss to such bank or trust company authorized to do business in Hawaii as the Board shall designate for the custody and disposition as herein provided of all proceeds of such insurance, and from time to time cause to be deposited promptly with the Lessor true copies of such insurance policies or current certificates thereof, without prejudice to the right of each apartment owner to insure his apartment for his own benefit. Except as provided in Paragraph (16.01) hereof, in every case of such loss or damage, all insurance proceeds shall be used as soon as reasonably possible by the Association for rebuilding, repairing or otherwise reinstating the same buildings in a good and substantial manner according to the original plan and elevation thereof or such modified plans conforming to laws and ordinances then in effect as shall be first approved as herein provided, and the Association at its common expense shall make up any deficiency in such insurance proceeds. Every such policy of insurance shall: -15-

16 (1) Provide that the liability of the insurer thereunder shall not be affected by, an that the insurer shall not claim any right of set-off, counterclaim, apportionment, proration, or contribution by reason of any other insurance obtained by or for any apartment owner; (2) Contain no provision relieving the insure from liability for loss occurring while the hazard to such buildings is increased, whether or not within the knowledge or control of the Board, or because of any breach of warranty or condition or any other act or neglect by the Board or any apartment owner or any other persons under either of them; (3) Provide that such policy may not be canceled or reduced by amount or type of coverage (whether or not requested by the Board) except by the insurer giving at least 60 days prior written notice thereof to the Board, Lessor, any mortgagee, and every other person in interest who shall have requested such notice of the insurer; (4) Contain a waiver by the insurer of any right of subrogation to any right of the Board, Lessor or apartment owners against any of them or any other persons under them; (5) Contain a waiver by the insurer of any right to deny liability because of vacancy of any apartment or apartments; (6) Contain a provision requiring the insurance carrier, at the inception of the policy and on each anniversary date thereof, to provide the Board of Directors with a written summary in layman's terms of the policy. The summary shall include the type of policy, a description of the coverage and limits thereof, amount of annual premium, and renewal dates. The Board shall provide this information to each apartment owner. shall: (7) Contain a standard mortgagee clause which (a) provide that any reference to a mortgagee in such policy shall mean and include all holders of mortgages of any apartment or apartment lease of the project, in their respective order and preference, whether or not named therein; (b) provide, that such insurance as to the interest of any mortgagee shall not be invalidated by any act or neglect of the Board, Lessor, or apartment owners or any persons under any of them; (c) waive any provision invalidating such mortgagee clause by reason of the failure of any mortgagee to notify the insurer of any hazardous use or vacancy, any requirement -16-

17 that the mortgagee pay any premium thereon, any contribution clause; and (d) provide that, without affecting any protection afforded by such mortgagee clause, any proceeds payable under such policy shall be payable to said bank or trust company designated by the Board. (14.02) The Board, on behalf of the Association at its common expense, shall also effect and maintain at all times comprehensive general liability insurance covering all apartment owners with respect to the project and naming the Lessor as additional insured in a responsible insurance company authorized to do business in Hawaii having a financial rating by Best's Insurance Reports of Class VI or better, with minimum limits of not less than $1,000, for injury to one or more persons in any one accident or occurrence and $300, for property damage, or such higher limits as the Lessor may from time to time establish with due regard to then prevailing prudent business practice in the State of Hawaii as reasonably adequate for Lessor's protection, and from time to time upon receipt thereof deposit promptly with the Lessor current certificates of such insurance, without prejudice to the right of any apartment owners to maintain additional liability insurance for their respective apartments. (14.03) The Board shall review not less frequently than annually the adequacy of its insurance program and shall report in writing the Board's conclusions and any action taken on such review to the owner of each apartment and to the holder of any mortgage on any apartment who shall have requested a copy of such report. 15. Condemnation. In case at any time or times the project or any part thereof shall be taken or condemned by any authority having the power of eminent domain, or shall be sold to such authority under threat of condemnation, all compensation and damages for or on account of any land shall be payable to and be the sole property of Lessor, and all compensation and damages for or on account of any improvements of the project shall be payable to such bank or trust company authorized to do business in Hawaii as the Board shall designate as trustee for all apartment owners and mortgagees according to the loss or damage to their respective apartments and appurtenant common interests and shall be used promptly by the Association to the extent necessary for restoring or replacing such improvements on the remaining land according to plans therefor first approved as herein provided unless such restoration or replacement is impractical in the circumstances. Unless such restoration or replacement is undertaken within a reasonable time after such taking, condemnation or sale, the Association at its common expense shall remove all remains of such improvements on the remaining land and restore the site thereof to good orderly condition and even grade. -17-

18 16. Insured Casualty and Uninsured Casualty. (16.01) Insured Casualty. In case at any time or times any improvements of the project shall be damaged or destroyed by any casualty herein required to be insured against, such improvements shall be rebuilt, repaired or restored unless (a) 80% or more of the apartments and (b) apartments to which are appurtenant 80% or more of the common interest shall vote against rebuilding, repairing or otherwise reinstating the buildings as aforesaid, which vote shall be taken at a meeting of the Association held prior to commencement of the rebuilding, repair or other reinstatement of the buildings and within 90 days after such loss or damage or such later date which is within 30 days after the insurance loss has been finally adjusted, and Lessor and all mortgagees shall consent thereto in writing, then and in such event the provisions of Section 514A-21 shall apply and the Association, within a reasonable time thereafter, at its common expense, shall remove all remains of improvements so damaged or destroyed and restore the site thereof to good orderly condition and grade. Any such restoration of the common elements shall be completed diligently by the Association at its common expense and the apartment owners shall be solely responsible for any restoration of their respective apartments so damaged or destroyed, according to the original plans and elevation thereof, or such other plan first approved as provided herein. (16.02) Uninsured Casualty. In case at any time or times any improvements of the project shall be damaged or destroyed by any casualty not herein required to be insured against, such improvements shall be rebuilt, repaired or restored if twenty-five per cent (25%) of the apartment owners affirmatively vote for the rebuilding, repairing or restoration. Any such approved restoration of the common elements shall be completed diligently by the Association at its common expense and the apartment owners shall be solely responsible for any restoration of their respective apartments so damaged or destroyed, according to the original plans and elevation thereof, or such other plan first approved as provided herein. Unless such restoration is undertaken within a reasonable time after such casualty, the Association at its common expense shall remove all remains of improvements so damaged or destroyed and restore the site thereof to good orderly condition and even grade. 17. Alteration of Project. Restoration or replacement of the project or of any building, or construction of any additional building or structural alteration or addition to any structure, different in any material respect from said Condominium Map of the Project, shall be undertaken by the Association or any apartment owners only pursuant to an amendment of this Declaration, duly executed by or pursuant to the affirmative vote of seventyfive (75%) percent of the apartment owners and accompanied by the written consent of the holders of all liens affecting any of the -18-

19 apartments, and in accordance with complete plans and specifications therefor first approved in writing by Lessor and the Board, and promptly upon completion of such restoration, replacement or construction, the Association shall duly record or file of record such amendment together with a complete set of floor plans of the project as so altered, certified as built by a registered architect or professional engineer; provided, however, that any alterations or additions within an apartment or within a limited common element appurtenant to and for the exclusive use of such apartment may be undertaken without an amendment to this Declaration or filing of a complete set of floor plans of the project as so altered. Apartment owners may also make non-material structural alterations, including the installation of solar energy devices, as permitted by Article V, Section 3(p) of the Restated By-Laws. Alterations of any portion of the project or an apartment to accommodate a handicapped person or persons, as defined by State and federal law, either residing or to reside in an apartment in the project shall be permitted so long as the renovations comply with County, State, and Federal laws related to health, safety, and building code standards. The renovations by handicapped persons shall be subject to the same approval and recordation requirements as set forth in this Declaration. In the event that the handicapped person requesting the alteration no longer resides in an apartment in the project, that person shall be responsible for the restoration of the project to its original condition including the expense of such restoration. This responsibility may be delegated to another person upon the approval by the Board of Directors by a majority of its members at a duly called meeting. The person to whom that responsibility is delegated must consent to the assumption of the restoration and the expense of the restoration in writing signed by that person and submitted to the Board of Directors before such approval is to be considered. (See Endnote 14) 18. Maintenance Reserve Fund. Subject to the requirements of Chapter 514A, Hawaii Revised Statutes, relating to reserves, the Board of Directors of the Association shall establish and maintain a Maintenance Reserve Fund by the monthly assessment against and payment by all the apartment owners in proportion to their respective common interests, of such annual amount as the Board determines to be adequate to provide for the common utilities, insurance, maintenance, repair, restoration, and replacement of the common elements and other expenses of administration of the project, and the furniture, fixtures, and mechanical equipment thereof, and for such other purposes as the Board deems necessary, all of which shall be deemed conclusively to be a common expense of the project. The Board may include reserves for contingencies in such assessment, and such assessment may from time to time be increased or decreased at the discretion of the -19-

20 Board. All assessments attributable to insurance shall be escrowed separately and used only for insurance premiums. The amount of the common expenses allocated, used or to be used for capital improvements, or any other capital expenditure, shall not be deemed income to the Association but shall be credited upon the books of the Association to the paid-in surplus account as a capital contribution by the apartment owner. The proportionate interest of each apartment owner in said Fund shall not be withdrawn or assigned separately but shall be deemed to be transferred with such apartment even though not mentioned or described expressly in the instrument of transfer. If the condominium property regime established hereby is terminated or waived, said Fund remaining after full payment of all common expenses of the Association shall be distributed to all apartment owners, except for the owners of apartments reconstituted as a new condominium property regime, in proportion to their respective common interest. (See Endnote 15) 19. Amendment of Declaration. Except as otherwise provided herein or in said Condominium Property Act this Declaration may be amended by affirmative vote or written consent of seventy-five per cent (75%) of the apartment owners and the written consent of Lessor and shall be effective only upon the recording of an instrument setting forth such amendment and vote duly executed by such owners or by the proper officers of the Association. (See Endnote 16) The Trustees of the Estate of Bernice Pauahi have signed or approved this Restatement in their fiduciary (or trustee) capacity and not in their individual (or personal) capacity. Any liability of the Trustees which may arise as a result of such Trustees signing or approving this Restatement is a liability of the Estate of Bernice Pauahi Bishop and not the personal liability of such Trustees. In other words, the Trustees are not personally liable for their consent to this Restatement. 20. Definitions. The terms "majority" or "majority of apartment owners" herein mean the owners of apartments to which are appurtenant more than fifty per cent (50%) of the common interests, and any specified percentage of the apartment owners means the owners of apartments to which are appurtenant such percentage of the common interest. 21. Latent Defects. The Lessor and Developer hereby agree to take no action which would adversely affect the rights of the Association of Apartment Owners with respect to the assurances against latent defects in the property or other right assigned to the Association by reason of the establishment of this condominium property regime. -20-

21 l coinrcb yadrtq TNEDISERP ECM ihauap flah lc inatekoc atobus yesdnil 22. Invalidity. the invalidity of any provision of this Declaration shall not be deemed to impair or affect in any manner the validity, enforceability or effect of the remainder of this Declaration, and in such event, all of the other provisions of this Declaration shall continue in full force and effect as if such provision had never been included herein. IN WITNESS WHEREOF, Associatio and the Lessor have executed these presents this of ASSOCIATION OF APARTMENT OWNERS OF WAIAU GARDEN VILLA By Its: Bruce W. Hi By Its: :./ Bert K. Treasurer to Peters Bishop Myron Bennett Thompson Trustees of the Estate of Bernice Pauahi Bishop LESSOR "Lessor"

22 ,1 a yad* 1.s v 4v94,,2191,191,nwo4k,nwpnk 1. / laiv 1-9 / rm A fo/v - Pqdik rmr6$eir r STATE OF HAWAII CITY AND COUNTY OF HONOLULU ) this before me appeared, to e personally w o, being by me duly sworn, did say tha he/she is the of the ASSOCIATION OF APARTMENT OWNERS OF WAIAU GARDEN VILLA, an unincorporated association, that said Association has no seal, and that said instrument was executed on behalf of said Association by authority of its Board of Directors and said officer acknowledged that he/she executed said instrument as the free act and deed of the ASSOCIATION OF APARTMENT OWNERS OF WAIAU GARDEN VILLA. rfon e of Hawaii My commission expires: STATE OF HAWAII CITY AND COUNTY OF HONOLULU ) ss. this day of, before me appeared K. 87a J, to e personally who, being by me duly sworn, did say that he/she is the of the ASSOCIATION OF APARTMENT OWNERS OF WAIAU GARDEN VILLA, an unincorporated association, that said Association has no seal, and that said instrument was executed on behalf of said Association by authority of its Board of Directors and said officer acknowledged that he/she executed said instrument as the free act and deed of the ASSOCIATION OF APARTMENT OWNERS OF WAIAU GARDEN VILLA. Notary State My commission expires: awaii of ink- -22-