These Covenants, Conditions and Restrictions (herein also called
"Protections") are issued pursuant to: (a) That certain
trust permit issued by the Ministry of Foreign Relations dated
November 15, 1974 (the "Trust Permit") and (b) the trust
agreement dated November 4, 1974, as amended on January 10, 1975
(the "Trust"), which Trust permit and Trust are recorded
in the Public Registry of Property and Commerce in Ensenada, Baja
California, Mexico under Number 14211, page 92 of Volume LIII,
and Number 14592, page 228 of Volume LIV, both of Section I, as
per respective entries dated December 2, 1974 and March 7, 1975
and (e) that certain Decree dated April 22, 1974, and executed
by the Governor of the State of Baja California, which was published
in the Official Periodical of the State of Baja California on
April 30, 1974. lt is intended that the ownership, use, enjoyment,
possession and improvement of the tourist development of Costa
Bajamar, (herein also called "Bajamar") shall be at
all times subject to the provisions of the aforesaid documents
and these Protections. Should there be any conflict between these
Protections and said documents, the provisions of such documents
shall take precedence.
Each
member of the Asociación de Usuarios Del Complejo Turístico
Costa Bajamar, A. C., who shall be known as a Member in Bajamar,
by acceptance of the "B" Beneficiary trust interest
in or legal title to the real property underlying his designated
unit, is bound to become and remain a member of the Association
and abide by these Protections, the Rules of Conduct, the Design
Rules, the Trust Permit, the Trust, and all laws applicable thereto
and agree that he will bind all his successors in interest thereto,
and in the event of his failure to abide by the above or to so
bind his successors, he agrees to be personally liable for all
resulting damages to the other Members and for the actual cost
of any resulting legal action or attorney’s fees.
These
Protections are issued Desarrollos Urbanos de Baja California,
S.A., as Developer of Costa Bajamar.
This beautiful and unspoiled coastal property as well as the uniqueness
of Baja California have inspired the Developer to plan and commence
construction of this tourism development. These Protections are
written to assure an orderly and attractive community, continuity
of the natural environment, and effective eventual Member management.
Through the Bajamar Association, the Supervisory Committee and
Design Committee process, the Developer seeks to perpetuate the
full enjoyment of the historical tradition and natural advantages
of Costa Bajamar. The Developer believes that this philosophy
serves both the public and private interests by creating a beneficial
land use that is sympathetic to the natural inheritance and creates
an atmosphere enriching the spirit of its participants.
It
is assumed that all Members are themselves similarly motivated
for their enjoyment and that of their fellow residents. It is
to promote the foregoing that these Protections are made and it
is the intention of the Developer that it will be In recognition
of the foregoing that these Protections will be understood and
construed.
Article
I. Definitions
The "Property" refers to the tourist development Costa
Bajamar, which is presently held in trust by Banco Azteca, S.
A., as trustee (the "Trustee") pursuant to the Trust.
“Bajamar”
shall mean that certain portion of the Property, a map of which
is attached hereto as Exhibit A.
"Parcel"
shall mean and refer to each of those plots of land into which
Bajamar has been divided.
"Unit"
shall mean and refer to any Parcel, other than a Common Area,
together with any improvements placed thereon by the Member holding
the interest thereto, together with the corresponding right to
use the Common Area and Restricted Common Area. When any Parcel
contains more than one individual dwelling structure, each of
which structures is intended to be occupied by one single family,
then each such individual dwelling structure shall be considered
to comprise a Unit for purposes of this definition.
"Private
Areas" shall mean the areas within a Parcel, other than Common
Area or Restricted Common Area, together with the improvements
from time to time constructed thereon, except to the extent designated
as Restricted Private Area.
"Common
Areas" shall mean all land improvements and facilities of
Bajamar which are held by the Trustee and administered for the
common use and enjoyment of the Members, as shown and designated
Common Areas, as such, on Exhibit A. For the purpose of maintenance
assessments and for the observance of all other provisions of
these Protections, the Common Areas shall also include all other
areas and facilities which have been dedicated to any governmental
entity or public utility company and which are located within
the boundaries of Bajamar.
"Restricted
Common Areas" shall mean those portions of multi-unit structures,
and the Parcels on which such structures are located, which are
constructed or operated in such a manner as to create certain
indivisible elements in common among the units comprising the
structure and Parcel. In such multi-unit structure those elements
may include all entry lobbies, corridors, stairs, structural elements
of floors and ceilings, bearing walls, columns, roofs, foundations,
elevator equipments and shafts, central heating, central air conditioning
equipment, tanks, pumps and other central services, pipes, ducts,
chutes, flues, conduits, wires, and other utility installations,
wherever located, except the outlets thereof located within the
interior living space of dwelling, all together with the ground
area of the Parcel or Parcels on which the structure is located.
Those elements shall not include doors or windows, or interior
finishing elements such as carpets, floor and wall tile, acoustical
ceiling cover, plaster, paint and all other elements of similar
nature within individual units all of which shall be the sole
responsibility of the individual, Member holding the right to
use thereof.
"Recreational
Facility" shall mean a facility developed pursuant to Section
7.02 below, or developed by the Developer in Developer’s
sole option and discretion.
“Participating
Facility” shall mean any organization that has entered into
an agreement with the Developer or the Association pursuant to
Section 8.02 below.
“Project”
shall mean a Parcel divided or to be divided into more than one
Unit.
"Project
Area" shall mean all of the real property within Bajamar
lying within the boundaries of any project and designated "Project
Area" by the Developer or the Design Committee.
"Project
Committee" shall mean the governing body of any project.
"Developer"
shall mean Desarrollos Urbanos de Baja California, S. A.
"Trustee"
shall mean and refer to Banco Azteca, S. A. , or its appointed
successors under the Trust referred to above.
“Member”
shall mean the holder of the beneficial trust interest or legal
title to any Unit. Any member may delegate his right to use and
enjoyment of his Unit and the Common Area to his family, invitees,
and tenants, subject to the requirements of the Trust, these Protections
and the Rules of Conduct.
“Guest”
shall mean any invitee of a Participating Facility, using the
accommodations thereof.
The
"Association" is the Association describes in Article
V below.
The
"Board of Directors" shall mean that boar of the “Asociación
de Usuarios del Complejo Turistico Costa Bajamar, A. C. ".
The
"Design Committee" shall mean that certain committee
of the Association describes in Section 4.01 below.
The
“Manager" shall mean the individual or entity describes
in Section 5.O6e below.
“Protections"
shall mean and refer to these Bajamar Covenants, Conditions and
Restrictions.
“Rules
of Conduct" shall mean the rules established by the Board
of Directors from time to time pursuant to Section 5.07 below.
“Design
Rules" shall mean the rules established by the Design Committee
from time to time pursuant to Section 4.04 below.
“Fiscal
year” shall mean the year from January 1st. through the
last day of December.
Article
II. Property Subject
to Protections
Section 2.01 These Protections shall apply to the entire property
included now or in the future within Bajamar.
Section
2.02 Developer may, subject to the provisions of this Article
II, from time to time and in its sole discretion, annex to Bajamar
all or any part of the Property and such other real property from
time to time acquired or controlled by the Developer in an area
not to exceed two kilometers from the outside boundaries of the
Property.
Section 2. 03 Annexation shall be Subject to, and shall take effect
upon satisfaction of, the following conditions:
a. Developer shall declare that such property shall be subject
to these Protections and such other regulations as Developer shall
prescribe for such property;
b. Developer shall have obtained all necessary governmental approvals
for the property to be annexed; and
c. Such annexation shall not substantially increase the assessments
to be paid by the Members of Bajamar prior to such annexation,
nor shall such annexation substantially increase the burden upon
the Common Areas without adding a proportionate amount of land
available for the purposes of Common Areas and, in any event,
such annexation or annexations shall not occur after the expiration
of five (5) years from the date of the last preceding "Public
Report" of the Department of Real Estate of the State of
California for a phase of the development of the Property. Any
annexation which fails to satisfy the requirements set forth above
in this Article II, shall require the consent of two-thirds of
the Members other than the Developer.
Section
2.04 Upon any annexation becoming effective, the property covered
by such annexation shall become and constitute a part of Bajamar,
and the Association shall have and shall accept and exercise jurisdiction
over such property as part of Bajamar. Any provision herein to
the contrary notwithstanding, the regulations referred to in Section
2.03 a. above may, with respect to all or any part of the property
describes in said regulations, provide for, or refer to one or
more documents creating any or all of the following provided such
are not inconsistent with the purposes of the development as stated
in these Protections,
the Trust Permit and the Subdivision Decree including, but not
limited to, residential and tourist recreational uses, private
home sites, townhouse and condominium multi-unit buildings or
completes, hotels, sport and commercial shopping, community and
public facility uses ancillary thereto:
a. Such new land classifications not then provided for in Article
III below, and such limitations, restrictions, covenants and conditions
with respect to the use thereof as Developer may deem to be appropriate
for the development of such property;
b. With respect to the land classification provided for in Article
III below, such additional or different limitations, restrictions,
covenants and conditions with respect to the use thereof as Developer
may deem to be appropriate for the development of such property,
provided, however, that such additional or different limitations,
restrictions, covenants and conditions applicable to common areas
lying within such property do not discriminate between Members
and Guests or between Members as to such property and other Members
as to any other property within Bajamar, and / or
c. Separate regulations applicable exclusively to a particular
project.
Article
III. Land Classifications
and Use
Section
3. 01 Land Classifications
All land within Bajamar has been classified into the following
areas: (a) Private Areas, (b) Restricted Private Areas, (c) Common
Areas, (d) Restricted Common Areas, and (e) Project Areas.
Section
3. 02 Private Areas
The Private Area of each Unit shall be for the exclusive use and
benefit of the Member relative to such Unit, subject to all of
the following limitations and restrictions:
a. The Association, the Developer, or their duly authorized agents
shall have the right at any time, without any liability to the
Member to enter upon any Private Area for the purpose (1) of maintaining
such Private Area, as provided for in paragraph a. of Section
5.06, (2) of removing any improvement constructed, reconstructed,
refinished, altered or maintained upon such Private Area in violation
of Section 3.03, (3) of restoring or otherwise reinstating such
Private Area as authorized by paragraph e. of Section 3.03, (4)
of otherwise enforcing, without any limitation, all of the restrictions
set forth in this Section and in Section 3.03, and (5) of crossing
the property by excavation, trenching or otherwise for the purpose
of installing o maintaining utility, community or common type
facilities or systems, such as, but not limited to, water, sewer,
gas lines, electricity, drainage, drainage swales and troughs,
telephone, cable television lines, etc. , so long as this right
does not interfere with existing building structures and further
provided the area of each unit in which said work was performed
shall thereafter be restored with all due respect to aesthetic
aspects and to the fullest extent commercially possible by the
Association or the Developer, as the case may be, to its former
condition, Upon such installation in each case, the right herein
shall become an easement in favor of the Developer or its assignees
in each case.
b. No improvement, excavation or other work which in any way alters
any Private Area (or disturbs the vegetation, surface or objects
of nature reposing thereon) from its natural or improved state
existing on the date such Private Area was first designated for
the benefit of or acquired by a Member shall be made or done or
caused to be made or done by a Member except upon strict compliance
with the Rules of Conduct, Design Rules, Section 3.03 or any other
applicable provision of these Protections.
c. The Private Area of each Parcel shall be used exclusively for
residential purposes, and no more than one family (including its
servants and transient visitors) shall occupy such private area;
provided, however, that nothing in this paragraph c. shall be
deemed to prevent:
(1) Any person from pursuing his professional calling upon a Private
Area if such person (aa) also uses such Private Area for residential
purposes, (bb) is self-employed and has no employees working in
such Private Area, and (cc) does not advertise or offer any product
or services for sale to the public upon or from such Private Area.
(2) The leasing of any Unit from time to time by the Member, according
to the Trust, subject also to the Rules of Conduct and all other
provisions which could otherwise be applicable to Members.
(3) The use by the Developer of residential buildings or Private
Areas for purposes of offices or activities of real estate brokers
or real estate sales and leasing. This right of use may also be
sublicensed to others by the Developer under such terms and conditions
as the Developer may deem reasonable and require in the Developer
own sole discretion.
d. Each Private Area, and any and all improvements from time to
time located thereon, shall be maintained, by the Member in good
condition and repair at such Member’s sole cost and expense
and each Member shall be liable for any taxes assessed thereon,
which taxes shall be paid directly to the taxing authority if
the property is separately assessed or shall be paid in the manner
set forth in paragraph d. of Section 5.05.
e. No activity which is deemed by the Board of Directors in its
reasonable discretion to be noxious or offensive shall be carried
on upon any Private Area, nor shall anything be done or placed
thereon which may be or become a nuisance to other Members in
the enjoyment of their Private or Restricted Private Areas, or
in their enjoyment of Common Areas, Restricted Common Areas and
Project Areas.
Section
3.03 Private Areas Construction
The right of a Member to construct, reconstruct, refinish, alter
or maintain any improvement upon, under or above any Private Area,
or to make or create any excavation or fill thereon, or to make
any change in the natural or existing surface drainage thereof
or to install any utility line (wire or conduit) thereon or there
over, is absolutely prohibited until and unless the Member first
obtains the written approval therefore from the Design Committee,
in addition to such Governmental and regulatory approvals as maybe
necessary. The Association shall correct any violation of this
prohibition and the Member shall reimburse the Association for
all expenses incurred in connection therewith.
a. Any Member proposing to construct or reconstruct, paint or
to refinish or alter any part of the exterior of, any improvement
on or within his Private Area, or to perform any work which required
the prior approval of the Design Committee, shall apply to the
Design Committee for approval as follows,
(1) The Member shall notify the Design Committee of the nature
of the proposed work.
(2) The Member shall submit to the Design Committee for approval
such plans and specifications for the proposed work as the Design
Committee may from time to time request, or as shall be required
by the Design Rules The Design Committee shall require that the
submission of plans and specification be accompanied by a reasonable
plans inspection fee.
b. Subject to the provisions of paragraph c. below the Design
Committee shall approve the plans, drawings and specifications
submitted pursuant to paragraph a. only if the following conditions
shall have been satisfied:
(1) The Member shall have strictly complied with the provisions
of paragraph a. above; and
(2) That the plans and specifications conform to these Protections,
and the Design Rules in effect at the time such plans were submitted
to the Design Committee.
All
such approvals shall be in writing and may be conditioned upon
the submission by the Member of such additional plans and specifications,
as the Design Committee shall deem appropriate.
Plans,
drawings and specifications which have not been rejected within
sixty (60) days from the date of submission thereof to the Design
Committee shall be deemed approved. This presumption of approval
however, shall not be effective until the Member applicant shall
have attended at the office of the Design Committee on or after
the 60th day to determine the answer of the Design Committee.
If at that time the answer received is disapproval, then the presumption
of approval shall not apply. The reason for this procedure is
to avoid misunderstandings which may arise where the Design Committee
does not have a means of conveniently communicating with a Member
applicant or where the notice may not be delivered for any reason.
It is of course in the best interest of the Member applicant to
maintain periodic communication with the Design Committee during
the application period.
c. Notwithstanding the provisions of paragraph b. above, if the
Members of the Design Committee, in their sole discretion, unanimously
find that the proposed work would for any reason whatsoever (including
the design, height or location of any proposed improvement and
the probable effect thereof on other Members in the use and enjoyment
of their Private, Restricted Private, Common, Restricted Common
or Project Areas) be incompatible with Bajamar, then the Design
Committee shall not approve the plans, drawings and specifications
submitted to it pursuant to paragraph a. above and shall so notify
the Member concerned in writing setting forth the reasons for
such disapproval.
d. The Member shall commence the construction, reconstruction,
refinishing alterations or other work pursuant to the approved
plans within one (1) year from the date of such approval. lf the
Member shall fail to comply with this paragraph any approval given
pursuant to paragraph C above shall be deemed revoked unless,
upon the written request of the Member prior to or after expiration
of said one (1) year period and upon a finding by the Design Committee
that there has been no change in circumstances, the time for sue
commencement is extended in writing by the Design Committee.
e. Upon the completion of any construction or reconstruction of,
or the alteration or refinishing of the exterior of, any improvement,
or upon the completion of any other work for which approved plans
are required under this Section, the Member shall give notice
thereof to the Design Committee, and within sixty (60) days thereafter
the Design Committee, or its duly authorized representative, may
inspect such improvement to determine whether it was constructed,
reconstructed, altered or refinished in substantial compliance
with approved plans. lf the Design Committee finds that such construction,
reconstruction, alteration, or refinishing was not done in substantial
compliance with approved plans or was not done in accordance with
the requirements or the spirit of these Protections or any applicable
rules and regulations, it shall notify the Member of such noncompliance
within such sixty (60) day period and shall require the Member
to remedy such non-compliance. If upon the expiration of sixty
(60) days from the date of such notification the Member shall
have failed to remedy such non-compliance the Design Committee
shall notify the Board of Directors of such failure, and the Association,
at its option shall either remove the improvement or remedy the
non-compliance, and the Member shall reimburse the Association
for all expenses incurred in connection therewith. If for any
reason the Design Committee fails to notify the Member of any
such non-compliance within sixty (60) days after receipt of said
notice of completion thereof, the improvement shall be deemed
to be in accordance with said approved plans, except that such
presumption shi not be effective unless the Member has established
that he has complied with the personal attendance procedure set
forth at the end of paragraph 3. 03b (2) above.
f. In the event that the construction or work planned for a Private
Area is such that the natural landscape within such area will
be destroyed, Developer shall have the right to remove such landscaping
for the Developer's use, unless the Member elects to remove and
properly store such landscaping for re-use.
Section
3. 04 Restricted Private Area
The Restricted Private Area of certain Parcels shall be for the
exclusive use and benefit of the Member owning title to or the
"B" Beneficial Interest in such Parcel, subject to all
of the following limitations and restrictions, and the Rules of
Conduct and Design Rules, the major purpose of which is to assure
that the Restricted Private Area is maintain in a manner that
is attractive when viewed and does not inhibit views to the adjacent
open space.
a. The Association, or its authorized agents, shall have the right
at any time, without any liability to the Member, to enter upon
any Restricted Private Area for the purpose (1) of maintaining
such Restricted Private Area, as provide for in paragraph b. of
Section 5.06, (2) of maintaining Private Areas, Common Areas,
and Restricted Common Areas, (3) of removing any improvement constructed,
reconstructed or maintained upon such Restricted Private Area
in violation of paragraph a. of Section 3.07, and (4) of otherwise
enforcing the restrictions set forth in this Section and Section
3. 07.
b. No improvement, excavation or other work which in any way alters
such Restricted Private Area (or disturbs the vegetation, surface
or objects of nature reposing on such Restricted Private Area)
from its natural or existing state on the date such Restricted
Private Area was first designated for the use and enjoyment of
or conveyed to a Member shall be made or done except upon strict
compliance with, and within the restrictions and limitations of,
the provisions of Section 3.07.
c. There shall be no use of Restricted Private Area whatsoever
except (1) any use contemplated by any improvement permitted under
paragraph b. above, and (2) natural recreational uses which do
not cause unreasonable disturbance to other Members in their enjoyment
of their Private and Restricted Private Areas, or in their enjoyment
of Common and Restricted Common and Project Areas.
d. Each Member shall be liable for any taxes levied or assessed
against the Restricted Private Area within the Parcel which is
owned by or for which the "B" Beneficial Interest is
held by such Member, which taxes shall be paid directly to the
taxing authority if the property is separately assessed or shall
be paid in the manner set forth in paragraph d. of Section 5.05.
Section
3.05 Common Area
The use of Common Areas shall be reserved exclusively and equally
to all Members and to Guests, subject, however, to the following
limitations and restrictions:
a. The use of Common Areas shall be subject to the Rules of Conduct.
b. The use of Common Areas shall be subject to such easements
and rights as shall be reasonably required by the Developer for
the construction and operation of Bajamar, to such road and public
utility easements and rights of way as may from time to time be
taken under power of eminent domain and to such other road and
public and private utility easements as may at any time be granted
by the Association pursuant to the provisions of paragraph d.
of Section 5.06.
c. No improvement, excavation or other work which in any way alters
any Common Area from its natural or existing state on the date
of commencement of these Protections shall be made or done except
upon street compliance with, and within the restrictions and limitations
of the provisions of Section 3. 07.
d. Any portion of a Common Area reserved for development of a
recreational facility may be developed into one or more recreational
facilities pursuant to the provisions of Article VII. Such portion
shall be used as a Common Area until such time as any such recreational
facility is developed. Upon the development of any such recreational
facility by the Association pursuant to the provisions of Section
7.02 such facility may be used by any Member or Guest, subject
to the provisions of the Rules of Conduct with respect to such
use.
e. Except to the extent otherwise permitted pursuant to the provisions
of paragraph d. above and Section 3.07, there shall be no use
of Common Areas, exclusive of roads or designated paths for horses,
bicycles or pedestrians, except natural recreational uses which
do not injure or scar the Common Area, or cause unreasonable disturbance
to Members in their enjoyment of their Private and Restricted
Private Areas. Additional limitations on the use of the Common
Areas shall be provided in the Rules of Conduct.
Section
3. 06 Restricted Common Area
The exclusive use of Restricted Common Areas shall be reserved
equally to the Members within Projects which are contiguous to
such Restricted Common Area; provided, however, that the limitations
and restrictions set forth in paragraphs a., b., c., and e of
Section 3.05 with respect to the use of common area by Members
and Guests shall be applicable to the use of Restricted Common
Areas by Members within Projects which are contiguous to such
Restricted Common Area.
Section
3.0 7 Common Area, Restricted Common Area and Restricted Private
Area Construction
No improvement, excavation or work which in any way alters any
Common Area. Restricted Common Area, or Restricted Private Area
from its natural or existing state on the date of these Protections,
shall be made or done except upon strict compliance with, and
within the restrictions and limitations as follows:
a. Except to the extent otherwise provided in these Protections,
no person other than the Association or the Developer or their
duly authorized agents or a Member in the case of Restricted Private
Area, shall construct, reconstruct refinish, alter or maintain
any excavation or fill upon, or shall change the natural o existing
drainage of or shall destroy of remove any tree, shrub or other
vegetation from, or plant any tree, shrub or other vegetation
upon, or disturb any object of nature reposing on, a Restricted
Private Area, Common Area or Restrict Common Area.
b. Except to The extent otherwise provided in paragraph e. below,
if the Association, or a Member in the case of Restricted Private
Area, proposes to construct or reconstruct, or to refinish or
alter the exterior of, any improvement located or to be located
upon a Common Area or Restricted Common Area, or if the Association
proposes to make o create any excavation or fill, or to change
the natural or existing drainage of surface waters, or to remove
any trees, shrubs or other vegetation, or to plant any trees,
shrubs or ground cover upon any Restricted Private Area, Common
Area or Restricted Common Area, the Association, or Member as
the case may be shall submit to the Design Committee for approval
two sets of plans and specifications for any such work in such
form and containing such information as the Design Committee may
at any time require. The Design Committee shall require that the
submission of plan and specifications be accompanied by a reasonable
plans inspection fee.
All
such approval shall be in writing; provided, however, that plans
which have not been rejected within sixty (60) days from the date
of submission there of to the Design Committee shall be deemed
approved, except that such presumption shall not be effective
unless the Member has established that he has complied with the
personal attendance procedure set forth at the end of paragraph
3.03b (2) above. Rejection of plans by the Design Committee shall
be in writing and shall set forth the reasons for such rejection.
c. At any time, Developer may construct, reconstruct, refinish
or alter any improvement upon, or make or create any excavation
or fill upon, or change the natural or existing drainage of, or
move or remove or plant any trees, shrubs, ground cover or object
of nature reposing upon any such Common Area, or Restricted Common
Area or if Developer shall determine that any such work: (1) is
reasonably necessary for any utility installation serving any
property within Bajamar or any participating facility, (2) is
reasonably necessary for the construction of any recreational
facility, (3) is desirable in order to provide or improve access
to or to enhance the use and enjoyment of such Common Area or
Restricted Common Area, (4) is desirable to protect, support or
preserve any property which constitute a part of Bajamar, or (5)
for any of the reasons provided in paragraph 3.02a above.
Section
3.08 Project Area
Project area shall be for the exclusive use and benefit of the
Members within the Project involved, subject, however, to all
of the following limitations and restrictions:
a. The Association, or its duly authorized agents, shall have
the right at any time, and from time to time, without any liability
to the Project Committee or to any Member within the Project to
enter upon any Project Area for the purpose of: (1) maintaining
all or any part of the project area, as provided for in paragraph
c. of Section 5.05, (2) maintaining Private Areas, Restricted
Private Areas, Common Areas and Restricted Common Areas, (3) removing
any improvement constructed, reconstructed, refinished, altered
or maintained upon such Project Area in violation of Section 3.09,
(4) restoring or otherwise reinstating such Project Area as authorized
by Section 3.09, and (5) en forcing the restrictions set forth
or incorporated in this Section 3.09.
b. No improvement, excavation or other work may be made or done
to or upon any Project Area except upon strict compliance with
the Rules of Conduct, the Design Rules, Section 3.09 and any other
applicable provisions of these Protections.
c. Project Areas shall be used exclusively for residential or
for related recreational-service purposes, and no more than one
family (including its servants and transient visitors) shall occupy
a unit within such project; provided, however, that nothing in
this paragraph c. shall be deemed to prevent:
(1) any person from pursuing his professional calling within his
unit if such person (aa) also uses such project area for residential
purposes, (bb) is self-employed and has no employees working in
such Project Area, and (cc) does not advertise or offer any product
or service for sale to the public upon or from such Project Area;
or
(2) the leasing of any unit from time to time by the Member, subject,
however, to the Rules of Conduct and the Trust.
(3) the use by the Developer of residential building or Private
Areas or Project Areas for the purpose of offices or activities
of real estate brokers or real estate sales and leasing. This
right of use may also be sub-licensed to others by the Developer
under such terms and conditions as the Developer may deem reasonable
and require in the Developer's own sole discretion.
d.
Each Project Area, and any and all improvements from time to time
located thereon, shall be maintained by the Members therein, in
good condition and repair at such Members' sole cost and expense,
and the Members shall be liable for any taxes assessed thereon,
which taxes shall be paid directly to the taxing authority if
the property is separately assessed or shall be paid in the manner
set forth in subparagraph d. of Section 5. 05.
e. No activity which is deemed by the Board of Directors in its
reasonable discretion to be noxious or offensive, shall be carried
on upon any Project Area, nor shall anything be done or placed
thereon which may be or become a nuisance to other Members in
the enjoyment of their Units or their Private or Restricted Private
Areas, or in their enjoyment of Common and Restricted Common Areas.
Section
3.09 Project Area: Construction and Alteration of Improvements
The right of a Member or Project Committee of the Project involved
to construct, reconstruct, refinish, alter or maintain any improvement
upon, under or above any Project Area, or to make or create any
excavation or fill thereon, or to make any change in the natural
or existing drainage thereof, or to install any utility line (wire
or conduit) thereon or there over, or to plant, destroy or remove
any tree or other vegetation there from, or disturb any object
naturally reposing on the surface, shall be subject to the Rules
of Conduct and the Design Rules, and all of the limitations, restrictions
and conditions set forth in paragraphs a. through f. inclusive,
of Section 3.03 with respect to Private Areas shall apply to Project
Areas; provided, however that all references in said paragraphs
to the Member shall include either the Member of the Project Area
or the Project Committee of the Project involved, whichever the
case may be.
Section
3. 1 0 Presumption of Compliance
All of the following improvements, excavations, fills and other
work shall, for all purposes of Bajamar Protections, be conclusively
presumed to be approved in compliance with the provisions of this
Article III.
a. Those existing or maintained within or upon any property within
Bajamar at the time such property became a part of Bajamar;
b. Those existing or maintained within or upon any Private Area
or Restricted Private Area at the time the ownership or "B"
Beneficial Interest in such Private Area or Restricted Private
Area was first acquired by a Member
c. Except in the case of residential structures as such, those
at any time constructed, reconstructed, refinished, altered, installed
or maintained within or upon any property within Bajamar by Developer
or pursuant to plans and specifications which have bee approved
by the Design Committee and which approval has not thereafter
been revoked.
Article
IV. Design Committee
Section
4.01 Organization
There shall be a Design Committee organized as follows:
a. The Design Committee shall consist of three Members or representatives
of the Developer. At least one member of the Design Committee
shall be an architect who shall be designated the architect member.
No other member of the Design Committee shall be required to meet
any qualification for a membership. Each of said persons shall
hold his office until such time as he has resigned or he has been
removed or his successor has been appointed, as set forth herein.
b. There shall also be three (3) alternate architect members of
the Design Committee, any one of whom may be designated by the
Design Committee to act in the place and stead of the architect
member in the event of his absence or disability.
c. Members and alternate members of the Design Committee shall
be appointed and removed by the Board of Directors. However, the
Association shall have the right to appoint the member of the
Design Committee at such times as the Developers ownership shall
be reduced to ten percent (10%) or less beneficial interest in
the Property within the Property.
d. Any member or alternate architect member of the Design Committee
may, at any time, resign from the Design Committee upon written
notice delivered to the Board of Directors.
Section
4. 02 Duties
lt shall be the duty of the Design Committee: (a) to study and
act upon the proposals or plans submitted to it pursuant to Sections
3.03, 3.07, 3.09 and 7.02, (b) to adopt Design Rules pursuant
to Section 4.04, and (e) to perform all duties delegated to it
by these Protections or the Rules of Conduct or Design Rules and
the Board of Directors.
Section
4.03 Meetings; Action; Compensation; Expenses
The Design Committee shall meet or vote separately by common arrangement
from time to time as necessary to properly perform its duties
hereunder. The vote or written consent of any two (2) members
shall constitute an act by the Design Committee; provided, however,
approval of plans, drawings, and specifications by the Design
Committee pursuant to paragraph e. of Section 3.03 shall require
the vote or written consent of the architect member and the vote
of anyone of the other members. The architect member and the alternate
architect members shall receive reasonable fees for professional
services rendered. Unless authorized by the Association, the other
members of the Design Committee shall not receive any compensation
for services rendered. All members shall be entitled to reimbursement
for reasonable expenses incurred by them in connection with the
performance of any Design Committee function.
Section
4.04 Design Rules
The Design Committee shall, from time to time and in its sole
discretion, adopt, amend and repeat by unanimous vote, rules and
regulations, to be know as "Design Rules", which, among
other things, interpret or implement the provisions of Sections
3.03, 3.07, and 3.09. However, it is understood that any changes
in the Design Rules shall be consistent with the basic theme expressed
in the initial Design Rules and with the overall standards container
therein. A copy of the initial Design Rules is attached hereto
as Exhibit B.
Article
V. The Bajamar Association
Section
5.01 Organization
The Association is a Mexican "Asociación Civil"
charged with the duties and empowered with the rights set forth
in its by-Iaws and herein.
Section
5.02 Membership
Each Member, so long as he is an owner of a Parcel or an owner
of a beneficial interest therein, shall be a Member of the Association.
Section 5. 03 Meetings of Members
a. In addition to the by-laws of the Association, the following
rules shall apply concerning meetings of Members.
(1) The basic governing authority of Bajamar shall be vested in
the Association acting through the Board of Directors of the Association
in accordance with these Protections.
(2) in order to attend and vote at a meeting of members, evidence
of ownership of legal title or beneficial trust interest as well
as ownership of membership, must be established with the Secretary
of the Meeting. lf any Members interest is held by two or more
persons, such persons shall agree as a condition to their right
to vote on the designation of a common representative.
(3) Members shall be represented at the meeting by an attorney
in-fact, pursuant to a general or special power of attorney executed
before a Notary Public, or by simple letter of proxy signed before
two witnesses.
Section
5. 04 Board of Directors
The rights, powers and authorities of the Association shall be
exercised by, and all business of the Association shall be conducted
or delegated by the Board of Directors of the Association.
Section
5.05 Duties and Obligations of the Association
The Association acting through the Board of Directors shall have
the obligation and duty, subject to these Protections, to do and
perform each and every one of the following for the benefit of
the Members and for the maintenance and improvement of Bajamar:
a. The Association shall accept as part of Bajamar, all property
annexed to Bajamar pursuant to Article II and shall accept all
Members as members of the Association.
b. The Association shall maintain, or provide for the maintenance
of, common area, restricted common area, and recreational facilities
area and all improvements of whatever kind and for whatever purpose
at any time located thereon in good order and repair; provided,
however, that notwithstanding the foregoing, while the Association
may elect to do so, it shall have no obligation to maintain in
good order and repair any improvement constructed upon Restricted
Common Area, or Restricted Private Area by any Member of a Project
area pursuant to Section 3.07.
c. The Association shall enter upon and maintain, or provide for
the maintenance of, any Private Area or Project Area which is
not maintained by the Member or Project Committee thereof in accordance
with the requirements of Sections 3.02 and 3.08, respectively.
d. To the extent not assessed to the Members, the Association
shall pay all real property taxes and assessments levied upon
any portion of Common Areas or upon any recreational facilities
to the extent not assessed to the Member pursuant to paragraph
d. of Section 3.02 or paragraph d. of Section 3.04, or paragraph
d. of Section 3.08. the Association may also pay all taxes levied
upon the Private Areas, Restricted Private Areas, and Project
Areas. Taxes shall be allocated based upon the relative value
of the land and improvements included within the Parcel which
is owned or in which the "B" Beneficial Trust Interest
is held by the Member or Members in a Project. The relative value
shall be based upon the following point system:
Land 0. 25 per m2
House Floor Area 1.0 per m2
Car Space and Walls 0. 1 0 per m2
Carport and Walled Parking 0. 25 per m2
Garage 0. 50 per m2
Deck or Pergola 0. 25 per m2
Side and Rear Property Line Walls 0. 10 per m2
Swimming Pool 0. 50 per m2
The
number of points allocable to the land and improvements of each
Parcel shall be determined by the Manager. Each Member or Members
in a Project shall be liable, as to each Parcel or Project, for
its pro rata share of all taxes levied against Private Areas,
Restricted Private Areas, and Project Areas, based upon the ratio
which the points allocable to such Parcel or Project beats to
the actual number of points within all of the Private Areas, Restricted
Private Areas, and Project Areas against which taxes are levied.
e. Unless adequately or sufficiently provided by a municipal,
state or other governmental body and unless the cost thereof is
assessed, directly or indirectly, against the Members by such
body, the Association shall contract for, employ or otherwise
provide police, volunteer fire, and refuse disposal services.
f. Without being responsible to do so, the Association shall obtain
and maintain in force policies of insurance in amounts and with
carriers approved by the Board of Directors.
g. The Association shall accept and act upon applications submitted
to it for the development of public recreational facilities.
h. The Association shall take such action, whether or not expressly
authorized by these Protections, Rules of Conduct, and Design
Rules, as may reasonably be necessary to respond to an emergency
and to enforce these Protections.
Section
5.06 Powers and Authority of the Association
Without limitation to its powers, the Association shall have all
of the powers to do any and all lawful things which may be authorized,
required or permitted to be done by the Association under and
by virtue of these, Protections 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 or
for the peace health, comfort, safety and or general welfare of
the Members and Guests of Bajamar. Without in any way limiting
the generality of the foregoing:
a. The Association shall have the power and authority at any time,
and without liability to any Member or Project Committee, to enter
upon any Private Area or Project Area for the purpose of enforcing
any and all of the provisions of Sections 3.03, 3.07, 3.08, and
3.09, or for the purpose of maintaining and repairing any such
area if for any reason whatsoever the Member or the Project Committee
of the Project involved fails to maintain and repair such area
as required by paragraph d. of Section 3.02 and paragraph d. of
Section 3.08, respectively. The Association shall also have the
power, authority, and responsibility, in its own name, on its
own behalf or on behalf of any Member or Members who consent thereto,
to commence and maintain actions and suits to restrain and enjoin
any breach or threatened breach of these Protections and to enforce,
by mandatory injunction or otherwise, all of the provisions of
these Protections.
b. To fulfill its obligations and duties under these Protections,
including, without limitations, the maintenance, repair, operation
or administration of Common Areas, Restricted Common Areas, and
recreational facilities, and only for remedial purposes, to the
extent necessitated by the failure of the Members thereof, Private
Areas, Restricted Private Areas and Project Areas, the Association
shall have the power and authority:
(1) to contract and pay for, or otherwise provide for, the maintenance,
restoration and repair of all improvements of whatever kind and
for whatever purpose at any time located upon Common Areas, Restricted
Common Areas or within any recreational facility.
(2) without being bound to, to obtain, maintain and pay for such
insurance policies or bonds as the Board of Directors shall deem
to be appropriate for the protection or benefit of Bajamar, the
Association, the members of the Board of Directors, the members
of the Design Committee, Members or Guests;
(3) to contract and pay for, or otherwise provide for, such utility
services including, but without limitation, water, sewer, garbage,
electrical, CATV, telephone and gas services, as may at times
be required;
(4) to contract and pay for, or otherwise provide for, the services
of architects, engineers, attorneys and certified public accountants
and such other professional and non-profession- al services as
the Association deems necessary;
(5) to contract and pay for, or otherwise provide for, fire, police
and such other protection services as the Association deems necessary
for the benefit of Bajamar, any property located within Bajamar,
Members and Guests;
(6) to contract and pay for, or otherwise provide for, materials,
supplies, furniture, equipment and labor as the Board of Directors
deems necessary; and
(7) to pay any or all liens at times placed or imposed upon any
Common Area, Restricted Common Area or recreational facility on
account of any work done or performed by the Association in the
fulfillment of its obligations and duties of maintenance, repair,
operation or administration.
c. In fulfilling any of its obligations, or in exercising any
of its rights, to construct improvements or other work upon any
Common Area, Restricted Common Area or in connection with the
development of any recreational facility pursuant to Article VII
of these Protections, the Association shall have the following
powers and authority:
(1) to contract and pay for, or otherwise provide for, the construction
of such improvements or other work upon such terms and conditions
as the Association shall deem appropriate.
(2) to obtain, maintain and pay for such insurance policies or
bonds, in addition to those obtained by the Association pursuant
to subparagraph (2) of paragraph b. above, as the Association
may deem appropriate for the protection or benefit of the Association,
the members of the Board of Directors, the members of the Design
Committee, Members and Guests;
(3) to contract and pay for, or otherwise provide for, the services
of architects, engineers, attorneys and certified public accountants
and other professional and non-professional services; and
(4) to pay any or all liens arising out of the constructor of
any improvement.
d. The Association shall have the power and authority to grant
and convey to any third party such easements, rights of way, parcels
or strips of land, in, on, over or under any Common Area, Restricted
Common Area or recreational facility, for the purpose of constructing,
erecting, operating and maintaining: (1) public roads, streets,
walks, driveways, and park areas; (2) poles, wires, and conduits
for the transmission of electricity for lighting, heating, power,
telephone, television and other purposes and for the necessary
attachments in connection therewith, and (3) public and private
sewers, storm water drains, land rains and pipe, water systems,
sprinkling systems, water, heating and gas lines or pipes and
any and all equipment in connection with the foregoing.
The
Association shall also have the power and authority to grant and
convey rights to any by-product of the Associations temporary
or permanent subjects of activity. To the extent it shall have
any authority over the sewage treatment plant or plants the Association
hereby grants the full right, without charge or cost, therefore,
to the Developer, all or any portion of the sewage effluent as
the Developer may elect.
e. The Association shall employ the services of a Manager to manage
the affairs of the Association upon such conditions as are deemed
advisable by the Board of Directors which may delegate to the
Manager any of its non-policy making powers under these Protections.
Any contract with the Manager shall contain reasonable terminator
provisions.
f. The Association may, from time to time and, upon such terms
and conditions as it may deem appropriate, agree with the Project
Committee of any project to manage the affairs of such Project
Committee with costs for these services above normal member service
costs charged to the project Members as an additional assessment.
Section
5. 07 The Rules of Conduct
a. The Board of Directors shall, subject to the provisions of
these Protections, adopt, amend, and repeal rules and regulations
to be known as the Rules of Conduct governing the use of any portion
of Bajamar.
b. with respect to paragraph a. above, the Bajamar Rules of Conduct
shall, without limitation and to the extent deemed necessary by
the Association preserve the benefits of Bajamar for all Members,
their families, invitee licensees, lessees, and for Guests, restrict
and or govern the use of Common Areas, Restricted Common Areas
and recreational facilities by any Guest, by any Member, by the
family of such Member, or by any invitee, licensee or lessee of
such Member; provided, however that with respect to use of Common
Areas and public recreational facilities, the Rules of Conduct
may not discriminate between Guests, Members, and the families,
invitees and lessees of Members.
c. A copy of the Rules of Conduct, subject to their being at times
amended or repealed, is attached hereto as Exhibit C, according
to the provisions of these Protections.
Article
VI. Funds and Assessments
Section
6. 01 Operating Fund
There shall be an operating fund, into which the following monies
shall be deposited:
a. maintenance assessments;
b. recreational assessments;
c. special assessments;
d. use fees paid by users of public recreational facilities;
e. use fees paid by Participating Facilities;
f. management fees paid by Project Committees under agreements
entered into pursuant to paragraph f. of Section 5.06;
g. reimbursement for property taxes paid pursuant to Section 5.
05d above
h. miscellaneous fees; and
i. income attributable to the operating fund;
and
from this operating fund the Association shall make disbursements
in performing the functions for which the foregoing assessments
are levied.
Section
6. 02 Maintenance Assessment
a. Within thirty (30) days prior to the commencement of each fiscal
year the Board of Directors shall estimate the costs and expenses
to be incurred by the Association during such fiscal year in performing
its functions under Article V (including a reasonable provision
for contingencies and replacements), and shall subtract from such
estimate:
(1) the estimate of costs and expenses referred to in Section
6.03
(2) an amount equal to the anticipated balance (exclusive of any
reserves for contingencies and replacements) in the operating
fund at the start of such fiscal year which is attributable to
maintenance assessments; and
(3) the estimated receipts for all use fees to be collected from
users of public recreational facilities and from participating
facilities during the next fiscal year.
b. The sum or net estimate determined pursuant to paragraph a.
above shall be assessed equally to the Members as a maintenance
assessment, except as to taxes assessed as provided in paragraph
d. of Section 5.05,
c. lf at any time, during any fiscal year, the maintenance assessment
proves inadequate for any reason, including non-payment of any
Member's share thereof, a further assessment may be levied in
the amount of such actual estimated inadequacy, which shall be
assessed to the Members in the manner set forth in paragraph b.
above.
d. Maintenance assessments shall be due and payable by the Members
in equal monthly installments, on the first day of each month
during the fiscal year or in such other manner as the Board of
Directors shall designate.
Section
6. 03 Recreational Assessment
a. Within thirty (30) days prior to the commencement of each fiscal
year the Board of Directors shall estimate the costs and expenses
to be incurred by the Association during such fiscal year in performing
its functions with respect to each recreational facility developed
pursuant to Article VII, and shall subtract from each such estimate
the amount, if any, of the anticipated balance in the operating
fund at the start of the next fiscal year attributable to recreational
assessments for each such recreational facility.
b. The sum or net estimate determined pursuant to paragraph a.
above for each recreative facility shall be assessed equally to
the Members as a recreational assessment.
c. lf at any time, during a fiscal year any recreational assessment
proves, or appears likely to prove, inadequate for any reason,
including nonpayment of any Member's share thereof, the Board
of Directors may levy a further assessment in the amount of such
actual or estimated inadequacy, which shall be assessed to each
Member in the manner and to the extent provided for in paragraph
b. above.
d. Recreational assessments shall be due and payable by Members
in equal monthly installments, on the first day of each month
during the fiscal year, or in such other manner as the Board of
Directors shall designate
Section
6. 04 Special Assessment
The Board of Directors shall levy a special assessment against
any Member as a direct result of whose acts, or failure or refusal
to act or to otherwise to comply with these Protections, the Rules
of Conduct or the Design Rules, and for such reasons monies were
expended from the operating fund, or services performed to or
because of such Member by Association employees in performing
its functions under these Protections. Such assessment shall be
in the amount so expended or in the value of the services performed
by Association employees, and shall be payable to the Association
when levied.
Section
6. 09 Development, Fund
There shall be a development fund, into which the Association
shall deposit all monies paid to it as:
a. Recreational facility development assessments;
b. Income attributable to the development fund;
From this fund the Association shall make disbursements in performing
the functions for which the foregoing assessments are levied.
Section
6.06 Recreational Facility Development Assessment
a. To provide for the development of recreational facilities,
the Board of Directors shall, subject to the provisions of paragraph
b. below, from time to time assess to the Members as a recreational
facility development assessment such amount or amounts as the
Board of Director may determine to be appropriate in the following
manner:
(1) an equal amount, to be fixed by the Association but not more
than twenty-five dollars ($25) for any fiscal year shall be assessed
to a Member as to each unit owned or in which a beneficial interest
is held by such Member, and (2) if the assessments made pursuant
to subparagraph (1) above are not adequate, an additional amount
may be assessed equally to the Members as a recreational facility
assessment pursuant to paragraph b. below.
b. No recreational facility development assessment pursuant to
subparagraph (2) of paragraph a. above shall be levied unless
the Members, exclusive of the Developer, shall by majority vote
have approved such assessment, provided the Developer shall also
have approved such assessment.
e. Recreational facility development assessments shall be due
and payable by the Members in such installments and during such
period or periods as the Board of Directors shall designate
Section
6. 07 Default in Payment of Assessments
Each assessment under this Article VI shall be a separate, distinct
and personal debt and obligation of the Member against whom it
is assessed. lf the Member does not pay such assessment or any
installment thereof when due, the Member shall be deemed to be
in default, and the amount of the assessment not paid, together
with the amount of any subsequent default, plus interest at eighteen
percent (18%) per annum or the average moratorium interest rate
or rates prevailing for the relative period among the principal
banking institutions in Tijuana, which ever is higher, and costs,
including reasonable attorney's fees, shall become a registered
debt upon the Unit of such Member, by virtue of being registered
in the Registry maintained by the Trustee and shall be subordinate
to the lien of a promissory note executed for the purchase of
a Unit. The foregoing remedy shall be in addition to any other
remedies provided by law for the enforcement of such assessment
obligations.
Article
VII. Development and Use of Recreational
Facilities
Section 7.01 Introduction
In order to promote the beneficial recreational use of Common
Areas in a manner which fosters the diverse recreational interests
of the Members and which is compatible with the rights of other
Members in their enjoyment of the environment of Bajamar, provision
is hereby made in this Article for the development by the Association
of recreational facilities, which shall be for the use and enjoyment
of any Member or Guest.
Section
7. 02 Recreational Facilities; Procedure for Development
a. One or more Members may at any time, petition the Board of
Directors for the development of a recreational facility on any
portion of Common Area reserved by the Developer for such development,
Such petition shall be in such form and shall contain such information
as the Board of Directors may require. The Board of Directors
may, at any time on its own motion, move for the development of
a recreational facility, in which case such motion shall be treated
as if it were a petition submitted by one or more Members.
b. The petition shall be approved by a majority of the Members
of the Association, exclusive of the Developer.
e. After approval by the Association of the petition, the Board
of Directors shall prepare, or cause to be prepared, and submit
to the Design Committee pursuant to paragraph b. of Section 3.
07, two sets of plans and specifications for the proposed recreational
facility.
d. Upon approval by the Design Committee of the plans and specifications,
the Board of Directors shall obtain firm bids on the total cost
of constructing and otherwise developing the proposed recreational
facility, and the lowest acceptable bid or bids shall be deemed
the estimated total cost of development of such facility.
e . lf the Design Committee rejects such plans and specifications,
the Board of Directors shall reconsider the petition in the light
of the reasons given by the Design Committee. If upon such reconsideration
the Board of Directors reaffirms the finding made pursuant to
parapagraph b. above, such plans and specifications shall be deemed
approved by the Design Committee.
f. The Board of Directors shall give final approval to the petition
if it finds, on the basis of the plans and specifications approved
by the Design Committee and the estimated total cost of development,
that the proposed recreational facility is financially feasible
and is compatible with the proposal approved by the Association.
In its final approval the Board of Directors may impose such restrictions
upon the use and operation of the facility, including reasonable
use fees to be charged Members and Guests for the use thereof,
as it may deem advisable to assure the satisfactory functioning
and financial stability of the facility, or to protect other Members
in their use and enjoyment of Bajamar.
g. After its final approval of the petition, the Board of Directors
shall allocate for the development of the proposed recreational
facility an amount equal to the total estimated cost of development
of such facility (including a reasonable provision for contingencies)
from the portion, if any, of the development fund attributable
to recreational facility development assessments levied for the
development of such facility. lf no such assessments have been
made, the Board of Directors shall allocate such amount from the
unallocated balance of such fund.
h. After allocation of monies pursuant to paragraph g. above,
the Board of Directors at such time and on such terms and conditions
as it may deem appropriate but not exceeding the estimate total
cost of development determined pursuant to paragraph d. above,
shall commence or contract for the development and construction
of the recreational facility in accordance with the plans and
specifications approved by the Design Committee.
i. lf the amount allocated from the development fund pursuant
to paragraph
g. above from time to time proves or appears to be inadequate
to cover the actual cost of development of the recreational facility,
the Board of Directors shall at its option and from time to time:
(1) levy an additional recreational al facility development assessment
pursuant to Section 6.06 in an amount sufficient to cover such
actual or estimated inadequacy and allocate such amount to the
development of such facility; or
(2) allocate an amount sufficient to cover such actual or estimated
inadequacy from the unallocated balance of the development fund
to the development of such facility.
j. Any monies allocated to the development of a given recreational
facility pursuant to paragraphs g. or i, above which are not needed
for such purpose shall, upon completion of the development of
such facility, become part of the unallocated balance of the development
fund.
k. lf for any reason the Board of Directors does not give final
approval to the petition subsequent to paragraph f. above, all
expenses incurred by the Board of Directors in obtaining plans
and specifications pursuant to paragraph c. above shall be paid
out of the unallocated balance of the development fund.
1.
Any improvement constructed or to be constructed by Developer
on any portion of Common Areas reserved for development as a recreational
facility shall be deemed to be a recreational facility developed
by the Association upon completion of such improvement by Developer.
Article
VIII. Participating
Facilities
Section
8.01 Introduction
In order to permit persons other than Members to enjoy and help
support in the many environmental and recreational benefits offered
by Bajamar, provision is hereby made in this Article for extending
the privilege of using Common Areas and recreational facilities
to Guests of Participating Facilities. In recognition of the rights
and interests of Members in their enjoyment of Bajamar, however,
provisions is also made to insure that such use by Guests will
not overburden Common Areas and recreational facilities. Among
the benefits which may accrue to Bajamar as a result of extending
use privileges to Guests are:
a. a more efficient use of Common Areas and recreational facilities
and a broader base for sharing the costs of operating and maintaining
the same, and
b. the attraction to the vicinity of Bajamar of the various services
which Participating Facilities may offer and of which Members
may avail themselves as members of the public but which, because
of the nature or cost of such services would not otherwise be
available to Members.
Section
8.02 Agreement Between Developed or Association and Participating
Facility
a. Developer, in its sole discretion, may, at any time enter into
an agreement with a Participant Facility, the purpose of which
is to extend to the Guests of such facility, subject to the provisions
of this Article, the privilege of using Common Areas o portions
thereof and Recreational Facilities.
b. Unless Developer shall give his written consent for the Association
to enter into an agreement with Participating Facility, the right
to enter into any such agreement is hereby reserved to, and vested
solely in Developer until such time as Developer owns ten percent
(10%) or less beneficial interest in property within the Property
or until Developer has delivered to the Trustee a declaration
waiving its rights hereunder, whichever is the first to occur.
When Developer waives or no longer has the right to enter info
such agreement, the right to enter into any such agreements shall
be vested solely in the Association.
Section
8.03 Provisions whish shall be included in Agreements with Participating
Facilities
Any agreement entered into pursuant to Section 8. 02 shall:
a. Be for a term not to exceed the terms of these Protections;
b. Designate the Common Areas and Recreational Facilities which
may be used by the Guests of the Participating Facilities,
c. Subject to Section 8.04, establish the allocation of Guest
cards to the Participating Facilities;
d. Establish the amount of the use fee to be paid by the Participating
Facilities to the Association for each fiscal year with respect
to each Guest card allocated to it which use fee shall be reasonably
relates or in proportion to the actual use by the Guest using
such cards; and
e. subject to these Protections, set forth such other terms and
conditions as may be appropriate concerning the use of Common
Areas and recreational facilities by Guests.
Section
8. 04 Limitation on Number of Guest Cards; Allocation
a. Each Participating Facility shall issue to each Guest, in such
numbers as allocated by the Developer or the Association (whichever
then has the right pursuant to paragraph b. of Section 8.02 to
contract with a Participating Facility) a Guest card evidencing
such Guest's privilege to use the Common Area and recreational
facilities designated in the agreement between such Participating
Facility and Developer or the Association. The aggregate number
of such Guest cards for all Participating Facilities shall not
exceed twice the total number of Parcels then within Bajamar.
For the purpose of this Section the use of roads for access to
a Participating Facility shall not be deemed to be use of Common
Area.
b. Any increase in the number of Parcels in Bajamar by reason
of the annexation of property pursuant to Section 2.02, shall
result in a like increase in the aggregate number of permissible
Guest cards. Developer or the Association, whichever then has
the right pursuant to paragraph b. of Section 8.02 to contract
with a Participating Facility, may allocate such additional Guest
cards to Participating Facilities which request such additional
Guest cards.
Section
8.05 Use Fees; Default; Termination
a. Each Participating Facility shall pay to the Association for
each fiscal year a use fee for each Guest card allocated to it.
Use fees for Guest cards allocated after the commencement of a
fiscal year shall be appropriately prorated. Use fees shall be
payable in monthly installments or in such other reasonable manner
as the Board of Directors may designate
b. The amount of the use fee for each Guest card shall be that
established in the agreement between such Participating Facility
and Developer or the Association, whichever then has the right
pursuant to paragraph b. of section 8.02 to contract with a Participating
Facility.
c. lf a Participating Facility does not pay any use fee or installment
thereof when due, it shall be deemed to be in default. Upon the
continuation of any default for two (2) or more successive months,
the Board of Directors may terminate the agreement to which the
default relates.
Section 8.06 Use Privileges, Conditions, Revocation
After a Participating Facility and Developer or the Association,
as the case may be, have entered into an agreement pursuant to
Section 8.02 and prior to the termination of such agreement, the
Guests of such Participating Facility, not to exceed the number
of Guest cards allocated to such Participating Facility, shall
have the privilege to use the Common Area and recreational facilities
designated in such agreement, subject to all of the limitations
and restrictions of these Protections; provided, however, that
such privilege shall be abated during the period of any default
pursuant to paragraph e. of Section 8.05; and provided further,
that noncompliance by any Guest with the limitations and restrictions
of these Protections shall automatically revoke such Guest's privilege
to use such Common Areas and recreational facilities.
Article
IX. Miscellaneous
Provisions
Section
9.01Amendment
a. In addition to the rights reserved to Developer pursuant to
Section 2.03 to modify or supplement these Protections with respect
to property annexed to Bajamar, and unless specifically provided
to the contrary herein, these Protections
or any part thereof, as in effect with respect to all or any part
of Bajamar, and with respect to any limitation, restriction, covenant
or condition thereof, may:
(1) be amended or repealed at the election of the Developer with
the approval of a majority of the Members, exclusive of the Developer,
to the extent necessary to change these Protections and this Association
to become a system under the Condominium Laws of the State of
Baja California as said laws may be constituted; or,
(2) be amended or repealed at the election of the Developer, to
the extent necessary in order to comply with the requirements
of any governmental agencies or laws of any jurisdictions with
which the Bajamar development or the Property may be registered
or licensed in order to be permitted to promote, solicit or sell
in said jurisdictions.
Section
9.02 Enforcement; Non-Waiver
a. Except to the extent otherwise expressly provided herein, the
Association or any Members shall have the right to enforce any
or all of the limitations, restrictions, covenants, conditions,
obligations, now or hereafter imposed by these Protections, upon
other Members, or upon any property within Bajamar. In the case
of the above right of the members, however, it is understood that
any such members shall be entitled to exercise such right only
after petition to the Association for enforcement thereof and
the Association, after being afforded a reasonable opportunity
shall not or is unable to do so.
b. Every act or omission whereby any restriction, condition or
covenants of these Protections is violated in whole or in part
may be enjoined or abated, whether or not the relief sought is
for negative or affirmative action, by the Association or by a
Member, as provided for in paragraph a. above; provided, however,
that any provision to the contrary notwithstanding, only the Association
or its duly authorized agents may enforce by self-help any limitation,
restriction, covenant, condition or obligation herein set forth.
c. The failure to enforce the provision of any limitation, restriction,
covenant, condition, obligation, lien or charge of these Protections
shall not constitute a waiver of any right to enforce any such
provision or any other provision of these Protections.
Section
9.03 Term
All of the limitations, restrictions, covenants and conditions
of these Protections shall commence upon the sale by Developer
of the first Unit at Bajamar to a Member and shall continue and
remain in full force and effect at all times, with respect to
all property and each part thereof included within Bajamar, and
with respect to the Members and to the Association, subject to
the right to amend and terminate as provided for in Section 9.01
above, until January 1, 2055.
Section
9. 04 Parcel Splitting; Consolidation
a. No Parcel within Bajamar of less than one hectare shall be
split. No other Parcel within Bajamar shall be split unless the
minimum area of each resulting Parcel is one-half of one hectare,
or if the parcel splitting is for a Project, the ratio of units
to hectares within the resulting Project Area does not exceed
16 to 1, and unless the consent of at least two of the three members
of the Design Committee shall be obtained.
b. No two or more parcels within Bajamar shall be consolidated
into one Parcel unless the consent of at least two of the three
members of the Design Committee shall be obtained.
Section
9. 05 Assignment Powers
Any and all of the rights and powers vested in Developer pursuant
to these Protections may be delegated, transferred, assigned,
conveyed or released in writing, by Developer to the Association,
and the Association shall accept the same, effective upon the
delivery to the Trustee by the Developer of a written notice of
such delegation, transfer, assignment, conveyance or release.
9.06
Condemnation of Common Areas and Restricted Common Areas
lf at any time, all or any portion of Common Areas or Restricted
Common Areas, or any interest therein, be taken for any public
or quasi-public use, under any statute, by right of eminent domain
or by private purchase in lieu of eminent domain, the entire award
in condemnation shall be paid to the Trustee for disposition pursuant
to the Trust.
Section
9. 07 Repair and Restoration
a. In the event of the damage or destruction of the improvements
within a Parcel, Private Area, Project Area, or Common Area (including
a recreational facility), the Member, Members within the Project,
or Association, as the case may be, shall be responsible to, either:
(1) Commence repair or reconstruction of the damage within 120
days from the date of occurrence according to the original plans
or pursuant to new plans approved by the Design Committee and
to diligently pursue such repair or reconstruction; or
(2) remove the improvements entirely and restore the Parcel to
a condition substantially compatible with its condition prior
to construction of the improvements.
Section
9. 08 Obligations of Owners; Avoidance, Termination
a. No Member, through his non use of any Common Area, Restricted
Common Area, Project Area or recreational facility, or by abandonment
of his Parcel, may avoid the burdens or obligations imposed on
him by these Protections by virtue of his being a Member.
b. Upon the conveyance, sale, assignment or other transfer of
a Parcel to a new Member, the transferring Member shall not be
liable for assessments levied with respect to such Parcel after
the date of such transfer, and no person, after the termination
of his status as a Member and prior to his again becoming a Member,
shall incur any of the obligations or enjoy any of the benefits
of a Member under these Protections following the date of such
termination.
Section
9.09 Notices; Documents; Delivery
Any notice or other document required by these Protections to
be delivered may be delivered either personally or by mail. lf
delivery is made by mail, it shall be deemed to have been delivered
twenty four (24) hours after a copy of same has been deposited
in the Mexican mail, postage prepaid, addressed as follows: (a)
if to the Association or to the Design Committee, in the name
of "Bajamar Association" or "Bajamar Design Committee,
'' as the case may be, Post Office Box 2211, Ensenada, Baja California,
Mexico; (b) if to a Member, at any parcel within Bajamar owned
by the Member or in which said Member has a beneficial interest,
(e) lf to Developer, at:
Desarrollos Urbanos de Baja California, S. A.
Administration Office
Club Campestre Bajamar - Kilómetro 76
Carretera Tijuana-Ensenada
P. 0. Box 2211
Ensenada, Baja California, México. However, any such address
may be changed at any time by any Member, by the Design Committee,
or by the Developer by notice in writing delivered to the Association,
or by the Board of Directors by notice in writing delivered to
all Members.
Section
9.10 Non-liability
No member of the Board of Directors or the Design Committee, or
of any other committee established pursuant to these Protections,
or their agents, shall be personally liable to any Member or to
any other person for any error or omission of any of the above
committees or of the Manager, their representatives or employees,
provided that such person has acted in good faith.
10.1
Added
The
Developer agrees for itself and its successors in interest to
the golf club:
a. To continue to use the golf course and the clubhouse for golf
course purposes during the life of the Trust and to make it available
to Members for membership at rates not higher than those charged
to the general public, and
b. To pay each month to the Association an amount equal to twenty
times the monthly per Parcel maintenance assessment (section 6.02)
for the year in question, for benefits received from the existence
of the roads and other related facilities and services.
EXHIBIT
C TO THE PROTECTIONS
BHOA RULES OF CONDUCT
The BHOA Rules of Conduct form part of the Costa Bajamar Covenants, Conditions and Restrictions (the “Protections”) issued by Desarrollos Urbanos de Baja California, S. A., February 1, 1976 and established pursuant to Section 5.07 of said Protections.
The attached “Rules of Conduct” are an updated interpretation of the “Rules of Conduct” included in the original CC & Rs of the Bajamar subdivision and apply to all properties located within Mision Todos Santos and Mision San Diego. A draft version of the update was sent to members in good standing for comment. All comments were considered and the majority incorporated
It is the Philosophy of the current Board of Directors that the Board and our staff should only be “proactive” in enforcing those rules which affect our streets and common areas. We believe that all other matters are better handled by a “neighbor to neighbor” approach and that the Board and our staff should only become involved if this approach fails.
Those rules marked with an asterisk * are the rules on which the Board has instructed our staff to take a proactive approach of enforcement. Enforcing the remainder will generally require that a Member in Good Standing make a more formal complaint or identify the problem to the Association’s Operations Manager. The Operations Manager will then determine if the rule has been violated, and if finding that it has, make either verbal or written contact with the Member who has violated a rule. If this does not resolve the issue, the Board will levy a fine against the property in question. Fines for unresolved issues will escalate as noted in Rule 17.
THE BHOA BOARD
OF DIRECTORS Alberto Delgado
Pete Salg
Jerry Hufford
Diane Steinberger
Joe Ustica
RULE 1: Pet
Policy.
*a)
All
dogs shall be on a leash in the control of a responsible
adult while using Mission streets and common areas.
*b)
Pet owners are
responsible for the clean up of any litter made by their
pets.
*c)
No
pets, other than legitimate service animals, are permitted
in the tennis courts, pool areas, BHOA office, or on
the property of another Member without that Member’s
permission.
d)
Pets shall not
interfere with the rights of any Member or resident to
the peaceful and quiet enjoyment of the community.
e)
Owners of pets
shall be financially responsible for any damage that their
pets cause to the common areas and the private property
of another Member.
f)
No domestic animals
other than a reasonable number of generally recognized
house pets shall be maintained on any private area.
RULE 2: Noise & Disturbances
a)
There shall be no activities which constitute a noise or disturbance that interfere with the rights of any Member or resident to the peaceful and quiet enjoyment of the community, common/private areas, and residences. For example, but without limitation, noise or disturbances from musical instruments, entertainment systems, tools (or other noise making devices). Excessive noise is inappropriate at any time, and especially after 10PM.
b)
There shall be no misconduct in common areas which shall constitute a threat to the health and safety of others or which unreasonably constitutes a threat to the comfort of others.
c)
A fine, to be determined by the Board, may be imposed for an infraction of this Rule.
RULE
3: Vehicles & Vehicle
Parking
a)
Rules for all Vehicles
i)
All vehicles must be driven in a safe and cautious manner,
follow road direction signs, and shall not exceed a speed
in excess of 30km/hr on Mission roads.
ii)
No vehicle is allowed to park in vacant lots, common
areas, or main access roads to/from Bajamar Missions.
iii) No vehicle
is allowed to park in a manner which may impede the natural
flow of traffic or block access to driveways, sidewalks,
side streets, or cul de sacs. If a vehicle is blocking
any of these areas, BHOA Security will notify the owner
that the vehicle must be moved immediately. If the vehicle
is not moved, a fine of US$25/day will be assessed against
the Member who owns the vehicle or whose residence is being
visited by the vehicle.
iv) No major
repair activity on any vehicle is allowed in the streets,
common areas, vacant lots, or main access roads to/from
Bajamar Missions.
b)
Rules
for Passenger Vehicles: cars, SUV’s, pickup trucks,
vans, mini vans, and other similar passenger vehicles.
i) Passenger
Vehicles shall park in the off street parking area provided
on the lot of each residence.
ii)
Permanent curbside parking is limited to two (2) Passenger
Vehicles in front of each residence.
iii) Visitor
parking shall be confined to the general area in front
of the visited residence.
*c)
Rules
for Recreation Vehicles: motor homes, trailers of all
types, boats, busses, and other similar recreation
vehicles.
i)
Temporary parking of an RV is allowed in the streets of Missions Todos Santos/San Diego for no more than one 72 hour period each month. When BHOA Security staff sees an RV parked on a street within these Missions a notice will be placed on the RV informing the owner that it must be removed from Bajamar in 72 hours. If not removed at the end of this period a fine of $5 per day will be assessed against the Member who owns the RV or whose residence is being visited by the RV.
ii)
Permanent and temporary parking of an RV is allowed within the limits of a residence lot provided it is parked in an enclosed garage or hidden behind 1.75m high walls and a 1.75m high driveway gate/door which is solid or opaque. Violation of this rule will require that the RV be removed from Bajamar within 72 hours. If not removed at the end of this period a fine of $5 per day will be assessed against the Member who owns the RV or whose residence is being visited by the RV.
iii) Living or sleeping in an RV is not allowed at any time. Violation of this rule will require that the RV be removed from Bajamar immediately.
RULE
4: Waste
Management
a)
BHOA
staff shall only remove household garbage and trash that
is placed inside covered containers within plastic garbage
bags. Containers shall not be visible from neighboring
properties and shall be located in service enclosures
that are built for this purpose. Removal of large waste
material is the responsibility of the homeowner. For
example, but without limitation, used refrigerators,
stoves, clothes washing and drying machines, water heaters,
furniture, packing boxes/crates, surplus building materials/rubble.
b)
The
accumulation of waste plant materials is prohibited except
in a compost pile which must be maintained in such a
manner so as not to be visible from neighboring properties.
*c)
The disposal
of any type of waste material on vacant lots is prohibited.
RULE 5: Laundry
Drying
Outside clothes lines and other outside cloth drying or airing facilities shall be maintained exclusively within a fence or service yard and shall not be visible from neighboring properties. No drying is allowed on visible railings or balustrades.
*
RULE 6: Fire
Restrictions
There shall be no exterior fires except for barbecue and incinerator
fires which are contained within receptacles designed for such
use.
* RULE 7: Camping
There shall be no camping on private or common areas, except
in areas, if any, developed for that purpose by the Association
or the Developer
RULE 8: House Occupancy
a)
There shall be no living or habitation in newly constructed houses or structures until an Occupancy Permit has been issued by the BHOA Design Committee. Consult the BHOA Design & Construction Rules for additional details.
b)
No house shall be occupied on a permanent basis by more than two (2) persons per bedroom plus one (1). Example: a three (3) bedroom house shall not have more than seven (7) permanent occupants.
RULE
9: Golf Cart Use
Private Golf Carts may be used upon the roads in Bajamar by licensed drivers (Mexico, USA or other country) but in a manner that does not interfere with normal traffic circulation. Carts shall not use the golf course for circulation to and from the Clubhouse.
RULE 10: Rental of
Homes
a)
No
home shall be rented for more than two (2) persons per
bedroom plus one (1). Example: a three (3) bedroom house
shall not be rented for more than seven (7) occupants.
b)
Renters
who are not in compliance with the Rules of Conduct are
in violation of their rental agreement and the owner
of the rental property shall be subject to the same corrective
action as all other property owners.
*
RULE 11: Pool & Tennis
Courts
a)
Use of mission tennis courts and swimming pool areas are limited to Members, and tenants or guests of Members, who have a valid access card issued by the BHOA office.
b)
Pools: Private parties at mission pools must be approved in advance by the BHOA office. Rules/fines regarding the use of Mission pools are posted on signs in each facility and details are available at the BHOA office and on the BHOA Web site.
c)
Tennis Courts: Tennis court use is limited to the game of tennis only with proper tennis shoes and apparel. Rules/fines regarding the use of mission tennis courts are posted on signs in each facility and details are available at the BHOA office and on the BHOA Web site.
* RULE 12: Fireworks
Fireworks are illegal in Mexico and are not allowed at any time
within the confines of Bajamar. Failure to comply may result
in action by Mexican Federal authorities.
RULE 13: Conduct
of Visitors and Tenants. Members are responsible for the conduct and any infractions by their family, guests or tenants. If you rent your house, a copy of these Rules of Conduct must be made available to your agent and tenants and must be visibly displayed within your house.
RULE
14: Construction
There shall be no construction undertaken on any property nor alterations made to the natural vegetation on any vacant lot without the approval of the BHOA Design Committee. Consult the BHOA Design and Construction Rules for additional details/fines.
* RULE 15: Signs
All signs shall be approved by the BHOA Design Committee. Consult
the BHOA Design & Construction Rules for additional details/fines
such as, but not limited, to the following:
a)
No
signs shall be permitted in common or private areas except
temporary signs such as "FOR RENT" or "FOR
SALE”.
b)
“SOLD” signs
shall not remain in place for more than 2 months.
c)
“Open
House” signs shall be removed from their display
area at the end of each day.
RULE
16: BHOA Dues
Bajamar Homeowner Association dues shall be paid each month or on a yearly basis. Consult the Bajamar Homeowner’s Handbook and/or BHOA office staff for payment amounts, discounts, late fees, and other related details.
RULE 17: Fines
a)
Unless stated within the rule itself the BHOA Board will levy fines for rule infractions as follows; 1st occurrence - a warning; 2nd occurrence - $25 USD; 3rd occurrence - $50 USD; 4th and subsequent occurrences - $75 USD. If twelve consecutive months go by since the last occurrence the process starts over.
b)
Fines are subject to the same interest and penalties associated with the payment of Association dues.
