Section 1. Creation of a Lien - Personal Obligation of Assessments
Subject to the provisions of the Declaration, each member is deemed to covenant and agree to pay the Association:
(a) regular monthly assessments or charges;
(b) special assessments for capital improvements; and
(c) emergency assessments.
The regular, special and emergency assessments, together with such interest thereon and costs of collection thereof, shall be a charge on the land and shall be a continuing lien on the property against which each such assessment is made. However, any holder of a first mortgage or any third party purchaser who comes into possession of the condominium pursuant to the remedies provided in the mortgage or foreclosure of the mortgage, shall take the property free of any claim for unpaid assessments or charges against the mortgaged condominium which accrue prior to the time such person comes into possession of the condominium. Each such assessments, together with interest, costs, and reasonable attorney's fees shall also be the personal obligation of the person who was the owner of such property when the assessment fell due.
Section 2. Purpose of Assessments
Assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety and welfare of members of the Association and in particular, for improvement and maintenance, in a first class condition and in a good state of repair, the properties, services and facilities devoted to this purpose and related to the use and enjoyment of the Common Area and facilities and, to the extent provided for herein, of the units situated upon the properties. Additionally, the purposes of assessments shall not only be for the benefit of each of the owners of the properties, but shall also run in favor of the City as well as for the benefit of the entire project and of each person having an interest therein.
Section 3. Basis of Regular Assessments
(a) At least sixty (60) days prior to the beginning of each calendar year, the Board shall estimate the charges required to be paid by the Association in performing its functions for the project during each calendar year, including a reasonable provisions for contingencies and reserves and less any surplus form the prior years funds. Said estimated cash requirement shall be assessed to all owners in the same proportionate share as their respective interests in the Common Area, in December of each year for the following year. If said estimated sum proves inadequate for any reason, including non-payment of owner's assessments, the Board may at any time levy a further assessment which shall be assessed to the owners in the same manner. Each owner shall be obligated and by accepting his deed to a unit agrees, to pay assessments levied pursuant to this Article, to the Board in equal monthly installments commencing on the first day of January in the calendar year following assessments.
(b) As promptly as possible following its election, the Board shall determine the estimated cash requirement, as hereinabove defined, for the balance of the calendar year. Assessments shall be levied against the then owners in the manner provided herein. Any such assessments charged or levied and which become payable with respect to the unit prior to the initial sale thereof by Declarant, shall be the obligation of Declarant as the owner thereof.
(c) All funds collected hereunder, together with special and emergency assessments or charges shall be controlled by Declarant prior to the organizational meeting of members and thereafter by the Board and shall constitute then maintenance fund as of the end of the year.
Section 4. Special Assessments for Capital Improvements
In addition to the regular assessments authorized above, the Association may levy, in any calendar year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, unexpected repair or replacement of a described capital improvement on the Common Area, including the necessary fixtures and personal property related thereto; provided however that, on any proposed special assessment ion an fiscal year, the Board may no, without the vote or written assent of a majority of the voting power residing in members other than Declarant, levy special assessments to defray the costs of any action or undertaking on behalf of the Association which in the aggregate exceed five (5%) percent of the budgeted gross expenses of the Association for that fiscal year.
Section 5. Emergency Assessments
In case of regular assessments described in Section 3. are insufficient for any reason, the Board shall have authority to levy and emergency assessment to make up the deficiency in the maintenance fund on the same basis as a special assessment for Common Area capital improvements.
Section 6. Rate of Assessment
As and when the Association's budget shall increase or decrease, such assessments shall be adjusted so that the owners of each unit bear the same relative proportion of the total budget as that initially borne. An owner shall also bear the same relative proportion of any special assessment.
Section 7. Date of Commencement of Regular Assessments
Regular assessments provided herein shall commence as to all units covered by the Declaration, including those owned by Declarant, on the first day of the month following the close of the first sale escrow.
Section 8. Certificate of Payment
The Association shall, on demand, furnish to any owner liable for assessments a certificate in writing ,signed by an officer of the Association, setting forth whether the regular, special or emergency assessments on a specified unit have been paid and the amount of delinquency, if any. A reasonable charge may be made by the Board for the issuance of the certificates. Such certificate shall be conclusive evidence of any assessments herein stated to have been paid.
Section 9. Effect of Non-Payment of Assessments - Remedies
Any assessments provided for herein or in the Declaration, which is not paid on the due date as established by the Board, shall be delinquent. With respect to each assessment not paid within fifteen (15) days after its due date, the Board may, at its election, require the delinquent owner to pay a late charge of not less that ten ($10.00) dollars or ten (10%) of the amount of the delinquent assessment, whichever is greater, together with interest at the maximum rate permitted by law on the delinquent sums, calculated from the date of delinquency to and including the date full payment is received by the Association. If any assessment is not paid within thirty (30) days after the delinquency date, the Association may, at its option, bring an action at law against the owner personally obligated to pay the same, or upon compliance with the notice provisions of the Declaration, foreclose the lien against the unit and there shall be added to the assessment amount, costs of preparing and filing the complaint in the action, and in the event a judgment is obtained, the judgment shall include interest and a reasonable attorney's fee, together with the costs of the action. Each owner vests in the Association or its assigns, the right and power to bring all actions at law or lien foreclosures against the owner or other owners for collection of delinquent assessments. No owner may waive or otherwise escape liability for assessments provided for herein by non-use of the Common Area or by abandonment of his condominium.
Section 10. Subordination of Assessment Lien
If any unit subject to a monetary lien created by any provision of the Declaration, shall be subject to a lien of any prior recorded first mortgage or deed of trust:
(a) the foreclosure of any lien created by anything set forth in the Declaration, shall not operate to impair the lien of such mortgage or deed of trust;
(b) on foreclosure of the lien of such mortgage or deed of trust by the mortgagee, the lien thereof for said charges as shall have accrued up to the foreclosure shall be subordinate to the lien of the mortgage of deed of trust, with the foreclosure-purchaser taking title free of the lien thereof for all said charges that have accrued prior to the foreclosure. Grantee shall not be obligated to pay any dues, fees, assessments or other charges levied or assessed by the Association prior to the time the encumbrancer-mortgagee acquired title to the unit and any lien therefore shall be discharged as to such grantee; the grantor-encumbrancer shall no be obligated to pay any dues, fees or assessment or other like charges levied or assessed by the Association after such conveyance.