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7.1.F. - Page 130
<br /> of at least (a) ninety percent (90%) of the voting power of the Members of the Association other
<br /> than Declarant, and (b) at least ninety percent (90%) of the First Lenders.
<br /> F. Amendments — Commercial Units: Notwithstanding anything to the contrary
<br /> in this Section 9.4, and notwithstanding anything to the contrary in this Declaration or the
<br /> Condominium Documents, any amendment to this Declaration or any of the Condominium
<br /> Documents that adversely affects the rights of the Commercial Unit Owners, including but not
<br /> limited to the provisions of Sections 2.1.B, 2.2.A, 2.2.F, 2.4.B, 2.5, 2.6.H, 4.5.B, 4.5.D(2), 5.2.A,
<br /> 5.2.C, 5.2.D, 6.4, 6.5, 7.2, 7.4.B, 7.4.F, 7.5.B, 7.9, 7.11, 7.13, 7.15.B, 7.23, 7.37, 8.1 and
<br /> Section 9.4.F, shall not be effective without the prior written consent of all of the Commercial Unit
<br /> Owners.
<br /> G. No Amendment Without City Consent: Notwithstanding the foregoing,
<br /> however, no amendment to any of the following provisions of this Declaration shall be made
<br /> without the express prior written consent of the City: Sections 1.8 (Association Common Area),
<br /> Section 1.12 (Building Common Area), Section 1.23 (Common Area(s)), Section 1.24 (Common
<br /> Expenses), Section 1.78 (Residential Use Common Area), Article VI (Utilities), and Section 9.4
<br /> (Amendments). City hereby delegates to its City Manager the authority to approve or deny
<br /> modifications to any or all of the foregoing, with final language subject to City Attorney approval.
<br /> 9.5. Encroachment Rights: If any portion of the Common Area encroaches on any Unit
<br /> or any part of a Unit, or any portion of a Unit encroaches on any Common Area due to
<br /> engineering errors, errors or adjustments in original construction, reconstruction, repair, settlement,
<br /> shifting, or movement of the building, or any other cause, the owner of the encroachment shall
<br /> have the right to maintain, repair or replace the encroachment, as long as it exists, and the rights
<br /> and obligations of Owners shall not be altered in any way by that encroachment, settlement or
<br /> shifting; provided, however, that no right shall be created in favor of an Owner or Owners if that
<br /> encroachment occurred due to the intentional conduct of such Owner or Owners other than
<br /> adjustments by Declarant in the original construction. In the event a structure is partially or totally
<br /> destroyed, and then repaired or rebuilt, the Owners agree that minor encroachments over adjoining
<br /> Condominiums or Common Area shall be permitted and that there shall be appropriate rights for
<br /> the maintenance of those encroachments so long as they shall exist. In the event that an error in
<br /> engineering, design or construction results in an encroachment of a Building into the Common
<br /> Area, or into a required setback area, a correcting modification may be made in the subdivision
<br /> map and/or Condominium Plan. Such modification may be in the form of a certificate of
<br /> correction and shall be executed by Declarant (so long as Declarant is the sole Owner of the
<br /> Project) and by Declarant's engineer (in the case of a condominium plan) and, in addition, by the
<br /> City Engineer (in the case of a subdivision map or parcel map). The modification may also be
<br /> made by lot line adjustment, if more appropriate.
<br /> 9.6. Rights of First Lenders: No breach of any of the covenants, conditions and
<br /> restrictions contained in this Declaration, nor the enforcement of any of its lien provisions, shall
<br /> render invalid the lien of any First Lender on any Condominium made in good faith and for value,
<br /> but all of those covenants, conditions and restrictions shall be binding upon and effective against
<br /> any Owner whose title is derived through Foreclosure or trustee's sale, or otherwise.
<br /> Notwithstanding any provision in the Governing Documents to the contrary, First Lenders shall have
<br /> the following rights:
<br /> A. Amendments:
<br /> (1) Amendments of a material adverse nature to First Lenders require the
<br /> approval of at least fifty-one percent (51%) of First Lenders (based on one (1) vote for each First
<br /> Mortgage owned);
<br /> (2)any action to terminate the legal status of the Project, or to use
<br /> insurance proceeds for any purpose other than to rebuild, requires approval of at least fifty-one
<br /> percent (51%) of First Lenders (based on one (1) vote for each First Mortgage owned); and,
<br /> (3) Implied approval may be assumed when a Mortgagee fails to submit a
<br /> response to any written proposal for an amendment within sixty (60) days after the Mortgagee
<br /> actually receives proper notice of the proposal, provided the notice was delivered by certified or
<br /> registered mail, with a "return receipt" requested.
<br /> Notwithstanding the foregoing the provisions of this Declaration shall not be amended without the
<br /> prior written approval of the beneficiary of the Declarant Mortgage defined in Section 9.6.D.
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