Section 17.01. Duration. The Covenants, Conditions, Restrictions and Easements of this Declaration shall run with and bind the Property and shall inure to the benefit of and be enforceable by the Association or any Owner, including the Declarant, for a term of fifty years from the date this Declaration is recorded, after which time said covenants, conditions, restrictions and easements shall be automatically extended for successive periods of five years, unless an instrument in writing, signed by a majority of the then Owners, has been recorded with the Recorder in the country of registry of the ship and World Yacht Club Ltd within ninty days prior to termination of the initial fifty year period or any successive period, agreeing to terminate said covenants, conditions, restrictions or easements in whole or in part. In the event a Condominium is owned by more than one Owner, any one of the co-owners may sign such instrument in writing on the behalf of all co-Owners. Notwithstanding the foregoing provisions, the right of ingress and egress to an Owner's Condominium provided for in this Declaration shall be perpetual so long as mortgages exist on the Property, except" to the extent such perpetuity has been waived in writing by all lenders holding an equity position on the property.
Section 17.02. Amendment. Subject to the other provisions of this Declaration,
(a) until such time as there is a Class A membership, this Declaration may be amended or cancelled by the Declarant;
(b) so long as there is a Class B membership, this Declaration may be amended only by the affirmative vote or written assent of not less than ninety percent of shareholders; and
(c) when the Class B membership becomes converted co Class A membership, this Declaration may be amended only by the affirmative vote or written assent of not less than
(i) ninety percent of the shareholders including the Declarant. Notwithstanding the foregoing, any provision of this Declaration, the Articles, Bylaws or Association Rules which expressly requires the approval of a specified percentage of the voting power of the Association for action to be taken under said provision, can be amended only with the affirmative vote or written assent of not less than the same percentage of the voting power of the Association. Any amendment that requires the vote or written assent of the Members shall be effective when executed by the President and Secretary of the Association who shall certify that the amendment has been approved in accordance with the requirements of this Section and recorded with the County Recorder. -
Section 17.03. Notices. Any notice sent to any Member, Owner or Mortgagee under the provisions of this Declaration shall be in writing and shall be deemed to have been properly sent when delivered personally or mailed, postage prepaid, if to an Owner or Member, to the last known address of the person who appears as such Member or Owner on the records of the Association at the time of such mailing, and, if to a Mortgagee, to the address furnished to the Association by such Mortgagee for the' purposes of notice or if no such address is furnished, to any office of the Mortgagee in the County, or if no such office is located in the County, to any office of the Mortgagee. In the case of co-Owners, any such notice may be delivered or sent to any one of the co-Owners.
Section 17.04. Enforcement.
(a) The Association or any Owner shall have the right to enforce by proceedings at law or in equity all Covenants, Conditions, Restrictions and Easements now or in the future imposed by this Declaration, the Articles and Bylaws, including without limitation, the right to prosecute a proceeding at law or in equity against the person or persons or entity or entities who have violated or are attempting to violate any of these covenants, conditions, restrictions or easements to enjoin or prevent them from doing so, to cause said' violation to be remedied and/or to recover damages for said violation.
(b) Should any Owner fail to comply with the provisions of this Declaration, the Articles, Bylaws or Association Rules and should any such failure continue for a period of thirty days following written notice of such failure from the Association. to the Owner, the Association shall have the right, but not the duty, to correct any such noncompliance, and the cost of such correction shall be borne by any such Owner. Such costs shall be reimbursed to the Association within thirty days after the Association has furnished a statement for such costs.
(c) The result of every action or omission by which any covenant, condition, restriction or easement is violate in whole or in part is hereby declared to be and to constitute a nuisance, and every remedy allowed by law or equity against an Owner, either public or private, shall be applicable against every such result and may be exercised by the Association or any Owner.
(d) In any legal or equitable proceeding for the enforcement or to restrain the violation of these covenants, conditions, restrictions or easements, the losing party or parties shall pay the attorneys' fees of the prevailing party or parties in such amount as may be fixed by the court in such proceedings.
(e) Failure by the Association or by any Owner to enforce any provision of this Declaration shall in no event be deemed a waiver of any breach or violation or a waiver of the right to do so after such failure.
(f) All remedies provided in this Declaration or at law or in equity shall be cumulative and not exclusive.
(g) Nothing contained in this Declaration shall be deemed to require any Owner to enforce any covenant, condition, restriction or easement.
(h) In any legal or equitable proceeding brought by the Association against Declarant, its successors or assigns, and/or any contractor, subcontractor, architect material men, or other person or entity involved in the planning development or construction of the Property or any part of the Property (collectively, "Defendants"), seeking damages, in whole or in part, with respect to the planning, development or construction of the Property or any part of the Property, not less than ninety percent (90%) of the amount of damages actually awarded against the Defendants or any of them, if any, as a result of such proceeding shall be used by the Association, solely and exclusively, for the construction, reconstruction, repair or replacement of the Property.
Section 17.05. Severability and Enforceability. Invalidation of any one or more of the provisions of this Declaration or the Condominium Plan by judgement or court order shall not in any way affect any other provisions, which shall remain in full force and effect. The Declarant makes no warranties or representations, express or implied, as to the binding effect or enforceability of all or any portion of this Declaration, the Condominium Plan, the Articles or Bylaws.
Section 17.06. Construction. The provisions of this Declaration and the Condominium Plan shall be liberally construed to effectuate this Declaration's purpose of creating a uniform general plan for the development and operation of an interrelated and interdependent residential real property development. Whenever the context of this Declaration requires, the singular shall include the plural and the masculine, feminine and neuter genders shall be deemed to include the other or others. The Article and Section headings contained in this Declaration are for purposes of reference and convenience only and shall not limit or otherwise affect the meaning of this Declaration. Unless otherwise indicated, all of the Article, Section and subsection references contained in this Declaration are references to Articles, Sections and subsections of this Declaration. All exhibits referred to in this Declaration are attached and incorporated by reference.
Section 17 07. Phased Development. It is the intention of the Declarant to develop the Property into a single interrelated and interdependent residential property development. The Declarant contemplates that it will construct the Property and/or cause it to be constructed in several phases and annex each phase to the Initial Property in accordance with the Article entitled "Annexation". Although the Declarant contemplates the annexation and construction of such additional phases, it shall in no way be obligated to either annex or construct such phases.
Section 17.08. Construction by Declarant. Nothing in this Declaration shall limit the right of the Declarant to commence and complete construction of improvements to the Property (including without limitation, constructing, maintaining and/or using temporary improvements during the course of such construction) or to alter the foregoing or the Condominiums or any Association Property or to construct such additional improvements as the Declarant deems advisable prior to the completion and sale of the entire Property. Without limiting the foregoing, the Declarant shall not be subject to the provisions of the Articles entitled "Architectural Control" or "General Restrictions". The Declarant may use any of the Property owned or leased by it for model dwelling units and for any other purpose for which the Declarant may use any of the Common Area or any Association Property as provided in this Section. The Declarant shall have the right and an easement to enter upon, use and enjoy and designate and permit others (including without limitation, the Declarant's agents, employees, representatives, contractors and prospective purchasers and tenants) to enter upon, use and enjoy any of the Common Area and any Association Property for any purpose in connection with or incidental to) the construction, development, sale, lease or other transfer of the Property (including without limitation, the erection, construction and maintenance of displays, sales offices and incidental parking, exhibits, signs and other structures, (b) the management, operation or maintenance of the Property and/or (c) the exercise of any rights or powers granted under this Declaration to the Declarant; provided, however, that the exercise of such right and easement shall not unreasonably interfere with the reasonable use and enjoyment of any of the Common Area and any Association Property by the Members or of any Condominium by any Member. Improvements shall be completed in 24 months after commencement of the project. The completion date shall be extended for extenuating and unavoidable circumstances. The Declarant reserves the right to alter its construction and development plans and designs as it deems appropriate. This Declaration shall not limit the right of the Declarant at any time prior to acquisition of title by a purchaser from the Declarant to establish on any of the Common Area or any Association Property additional licenses, easements, reservations and rights-of-way to itself, to utility companies, or to others as may from time to time be necessary or appropriate to the proper development and disposal of the Property. This Declaration shall not be amended to modify or eliminate this Section without the prior written approval of the Declarant and any attempt to do so shall have no effect.
Section 17.09. Nonliability of Officials. To the fullest extent permitted by law, neither the Board, and committees of the Association nor any member of said committees shall be liable to any Member or Owner or the Association for any damage, loss or prejudice suffered or claimed on account of any decision, approval or disapproval of plans or specifications (whether or not defective), course of action, act, omission, error, negligence or the like made in good faith within which such Board, committee or member reasonably believed to be the scope of their duties.
Section 17.10. Leases of Condominiums. Any Owner who shall lease or rent his Condominium to any person or entity shall be responsible for assuring compliance by any such person or entity with all of the provisions of this Declaration. Any lease or rental agreement between an Owner and a lessee must provide that the terms of the lease or rental agreement shall be subject in all respects to the provisions of this Declaration, the Articles and Bylaws, and that any failure by the lessee to comply with the terms of such documents shall be a default under the lease or rental agreement. All such leases or rental agreements shall be in writing. No Condominium shall be leased or rented for a period less than thirty days.
Section 17.11. Mergers and Consolidations. Upon a merger or consolidation of the Association with another association, its properties, rights and obligations may be transferred to the surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may, subject to the provisions of this Declaration, administer the covenants, conditions, restrictions and easements established by this Declaration, with respect to the Property, together with the covenants, conditions, restrictions and easements established upon any other property, as one general plan or in such other plan of administration as the surviving or consolidated corporation deems reasonable.
Section 17.12. Assignment of Rights and/or Duties. Any or all of the rights and/or duties, if any, of the Declarant under this Declaration may be assigned or delegated, respectively, to any other person or entity and upon any such assignment or delegation any such person or entity shall, to the extent of such assignment or delegation, have the same rights and/or duties as are given to and/or assumed by the Declarant under this Declaration and the Declarant shall be relieved of the performance of any further duty, if any, under this Declaration.
Section 17.13. Liquidation and Termination. If the project is terminated or liquidated at any time the proceeds from the termination or liquidation shall first to to the holder of the first mortgage. Any remainder shall be distributed to creditors and others in accordance with the laws of the country of registry.
rev 10/16/2008