KB Declaration of Covenants, Conditions, and Restrictions

THIS DECLARATION, made this 30th day of May, 1996, by A&B PROPERTIES, INC., a Hawaii corporation, whose place of business and post office address is 822 Bishop Street, Honolulu, Hawaii 96813 (hereinafter referred to as "Declarant"),

W I T N E S S E T H :

WHEREAS, Declarant is the fee owner of certain property at Pa'ia, County of Maui, State of Hawaii, which is more particularly described in Exhibit "A" attached hereto and made a part hereof (hereinafter called the "Subdivision"); and

WHEREAS, Declarant intends to subdivide the Subdivision into approximately 92 single-family residential lots (hereinafter called "Lots" or "Lot") and other lots for use for other purposes; and

WHEREAS, Declarant intends to organize a Hawaii nonprofit corporation to be known as "Ku'au Bayview at Paia Homeowners' Association" (hereinafter called the "Association"), to operate, manage, administer, maintain, repair, replace, landscape, and improve Common Areas and Improvements and Facilities (as those terms are hereinafter defined) for the use and benefit of some or all of the owners and occupants of the Lots, to control the exterior design of other improvements within the subdivision, to perform and provide for services necessary or desirable for the benefit of the Subdivision and the owners and occupants of the Lots, and to perform all of the obligations of the Association described in this Declaration;

NOW, THEREFORE, Declarant, in order to establish a plan for the operation, use, and maintenance of the Subdivision, the Common Areas and the Improvements and Facilities, as provided herein, hereby declares that the Subdivision, each and every lot thereof, and each and every interest therein, shall hereafter be held, leased, mortgaged, conveyed, used, occupied, and improved subject to and with the benefit and protection of the following terms, restrictions, covenants, conditions, and provisions, which terms, restrictions, covenants, conditions, and provisions shall be deemed covenants running with the land:

1. DEFINITIONS

• (a) "Association": The Ku'au Bayview at Paia Homeowners Association, a Hawaii nonprofit corporation, and its successors and assigns.
• (b) "Board" or "Board of Directors": The Board of Directors of the Association.
• (c) "Bylaws": The Bylaws of the Association, as the same may be from time to time duly amended.
• (d) "Articles": The Articles of Incorporation of the Association, as the same may be from time to time duly amended.
• (e) "Committee": The Design Committee established under paragraph 12.
• (f) "Common Areas": The Common Areas described in paragraph 3(a).
• (g) "Declarant": A&B Properties, Inc., a Hawaii corporation ("A&B"), and its successors and assigns, and such other persons to whom A&B, or its successors or assigns, may assign its rights as Declarant. (For purposes of this definition of "Declarant", A&B's "successors and assigns" shall not include any person to whom A&B conveys or leases a Lot, unless the rights of "Declarant" expressly have been assigned to such person.)
• (h) "Enforcing Persons": The Enforcing Persons described in paragraph 11(a).
• (i) "HRS": Hawaii Revised Statutes, as amended.
• (j) "HUD": The U.S. Department of Housing and Urban Development.
• (k) "Improvements and Facilities": The Improvements and Facilities described in paragraph 3(b).
• (l) "Lot": Each single-family residential lot in the Subdivision.
• (m) "Lot in the Subdivision": Each lot in the Subdivision, including all single-family residential lots, roadway lots, access lots, utility lots and all other lots.
• (n) "Owner": The record owner of fee simple title to each Lot.
• (o) "Paramount Liens": The Paramount Liens described in paragraph 8(i).
• (p) "Person": Any person, individual, or entity (including, without limitation, any trustee, mortgagee, personal representative, profit or nonprofit corporation, general or limited partnership, unincorporated association, joint venture or trust).
• (q) "Plot Plan": The individual plot plan given to the initial purchaser of each Lot. Each Lot has its own Plot Plan.
• (r) "Structure": All buildings, fences, walls and improvements of every description, whether above, on, or below ground.
• (s) "Subdivision": The property described in Exhibit "A" attached hereto, to be known as the "Ku'au Bayview at Paia Subdivision."

2. PROPERTY SUBJECT TO DECLARATION.

• (a) Property Subject to Declaration. The property subject to this Declaration shall be all of the property described in Exhibit "A" attached hereto and made a part hereof (and all subdivided portions thereof), together with improvements now or hereafter located thereon.
• (b) No Other Property Subject to this Declaration. Nothing herein or in any amendment hereto shall be deemed to be a representation, warranty, or commitment that Declarant will commit or subject to this Declaration any property it may now own or hereafter acquire other than that property described in Exhibit "A".
• (c) Withdrawal of Property. Real property may be withdrawn by the Declarant from the real property subject to this Declaration thereby releasing such real property from all covenants, conditions, limitations, and restrictions contained in this Declaration. The Declarant may make such withdrawals without the consent of the Owners provided that the Declarant is the sole owner of the property to be withdrawn. Such withdrawal of real property from the Declaration shall be effective upon the execution and recordation of a document which describes the property withdrawn and declares that such property is released from the provisions of this Declaration.

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3. ADMINISTRATION OF COMMON AREAS AND IMPROVEMENTS.

(a) Common Areas.

• "Common Areas" shall mean all property, real and personal, in which the Association owns or holds an interest or which the Association is obligated to maintain or elects to maintain for the use and/or enjoyment of all or some of the owners or occupants of the Lots and others so entitled, and may include, without limitation, estates in fee, estates for a term of years, easements, leases, licenses, and permits.
• Every Owner shall have a right and easement for enjoyment in and to the Common Areas, which easement shall be appurtenant to and shall pass with the title to each Lot.
• The Association shall be obligated to accept any property or interest therein (including, without limitation, leases, easements, rights-of-way, and licenses) which is conveyed or transferred to it, whether as a Common Area or otherwise, by Declarant, and the Association may, at its election, accept any property or interest therein which is conveyed or transferred to it by any other Person.
• Common Areas which are real property and which have been conveyed or transferred to the Association by Declarant shall not be consolidated, subdivided, or rezoned, except with the written consent of Declarant.
• Common Areas and any interest therein shall not be conveyed, assigned, dedicated, or in any way transferred by the Association except as provided herein.
• No part of the Common Area shall be mortgaged or conveyed without the prior consent of at least two-thirds (2/3) of the Owners (excluding the Declarant).
• Unless approved by both the Board and Declarant, residences or other structures for habitation shall not be constructed or placed upon any Common Area nor shall the Common Areas be used by the Association for commercial or business purposes.
• The Association shall at all times operate and maintain, irrigate, fertilize, landscape, plant, and replant the Common Areas and maintain all improvements in the Common Areas (including, but not limited to, roads, utility systems, irrigation systems, and right-of-way areas between the boundary line of all Lots and the curb of all public or private roadways adjacent to such Lots to the extent not dedicated to and maintained by governmental entities or public utility companies or required by law or agreement to be maintained by individual Lot owners), and do all things as are reasonably necessary to insure the fullest possible use and/or enjoyment of the Common Areas by the owners and occupants of the Lots and others so entitled and, except as otherwise provided herein, shall be solely responsible for the care, maintenance and preservation of the Common Areas.
• Without limiting the generality of the foregoing, the Association shall periodically pump and clean the retention basin located at the intersection of Lae Street and Hana Highway to prevent overflows, remove silt therefrom, inspect and maintain the basin, and keep it free of debris.
• The Association shall have an easement for access purposes over and across each Lot to the extent necessary to enable the Association to perform its maintenance, repair, and other Common Area obligations.
• The Association shall at all times maintain, irrigate, fertilize, landscape, plant, and replant the Common Areas at a superior level and standard of maintenance and appearance which is consistent with that of a first-class residential development. However, no Owner shall be or be deemed to be absolutely liable for damage to the Common Areas or any Lot in the Subdivision.
• Nothing contained in this Declaration conflicts with or shall be deemed to conflict with HUD's requirement that the Common Areas must be conveyed to the Association free and clear of all encumbrances before HUD insures the first mortgage in the Subdivision.

(b) Improvements and Facilities.

• The Association shall at all times maintain, repair, and replace, in good order, condition and appearance, all Improvements and Facilities which are transferred to or owned by the Association, or which are located within the Common Areas or which are located within easements across, over, or upon lots within the Subdivision and which run in favor of the Association.
• "Improvements and Facilities" shall include, without limitation, all roadways, pavement, curbs, gutters, sidewalks, sewer systems, storm drain systems, drainage systems, trash enclosures, walls, fences, signs, equipment, street lighting systems (other than those owned by a utility company), landscape irrigation systems (including the cost of electricity and water to operate the landscape irrigation systems), and other similar systems, facilities, and improvements.
• "Improvements and Facilities" shall not include improvements or systems which have been dedicated to or are owned by the County of Maui (or any department thereof) or a private or public utility such as Maui Electric Company, Hawaiian Telephone Company, or a private cablevision company; provided, however, the Association shall maintain, irrigate, fertilize, plant, and replant all grass, plants, and landscaping in the areas in which such improvements or systems are located, at a superior level and standard of maintenance and appearance consistent with that of a well maintained residential development.
• In the event an Owner of a Lot has placed any driveway or other improvement within or over any Common Area, any removal, repair, or replacement of such improvements shall be at the cost of and be the responsibility of the Owner and not the Association.

(c) Wall and Fence Easement.

Without limiting the foregoing provision, the Association shall be granted the following easements:

• (i) along the boundary of each Lot in the Subdivision fronting Hana Highway, for the purpose of maintaining, repairing, and replacing the wall and fence to be constructed along Hana Highway by Declarant, and
• (ii) along the northern boundary of the Subdivision, for the purpose of maintaining, repairing, and replacing the fence to be constructed along such boundary by Declarant.
• Subject to the obligation of the Lot Owner to maintain the interior surface of such wall or fence, the grant of easements shall obligate the Association to maintain, repair, and replace the wall and fence in good order and condition, and to maintain the landscaping located between the wall and Hana Highway.

(d) Easements.

The Association shall be required to grant and convey to any third parties easements, licenses, rights-of-way, or other rights, benefits, or interests in, on, over, or under any Common Areas and Improvements and Facilities (without payment to the Association) whenever required by Declarant; provided, however, that such easements, licenses, rights-of-way, or interests must be exercised in such manner as not materially to interfere with the use to which the Association has devoted such Common Areas and Improvements and Facilities.

(e) Insurance. To the extent available and obtainable at a reasonable cost, the Association shall maintain the following insurance upon all Common Areas and Improvements and Facilities:

• (i) Fire and hazard insurance covering the full replacement cost (with a reasonable deductible) of all Improvements and Facilities;
  
• (ii) Liability insurance with combined single limit coverage of not less than $1,000,000 per occurrence for bodily injury or death to one or more persons and for property damage, naming the Association and Declarant as insureds, subject to increase from time to time as required by Declarant in its reasonable business judgment; and
• (iii) Fidelity insurance with respect to the acts or omissions of the directors and officers of the Association.
• The Association shall also maintain such other insurance as may be from time to time determined by the Board of Directors.

(f) Rules and Regulations.

The Board shall have the right to adopt, amend, modify, or revoke such rules and regulations as it deems necessary or desirable for the proper maintenance and operation of the Common Areas and Improvements and Facilities, including without limitation suitable regulations for and restrictions on the use of Common Areas and Improvements and Facilities, and penalties for the violation thereof; provided, however, there shall be no rule or regulation which may in any manner adversely affect or limit Declarant's use and enjoyment of the Common Areas and Improvements and Facilities, or Declarant's rights, privileges, powers, and interests with regard to the Common Areas and Improvements and Facilities, as such rights may have been reserved to Declarant in any deed, declaration, or other document relating to the Common Areas and Improvements and Facilities. The Association, through the Board, may enforce such rules and regulations by any lawful means.

(g) No Delegation of Duties.

The obligations of the Association set forth in this Declaration shall not be assigned, delegated, or transferred by the Association either in whole or in part; however, the Board may enter into contracts or other similar arrangements with any Person for the performance of duties to be undertaken by the Association pursuant hereto.

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4. POWERS OF THE ASSOCIATION.

The Association (acting by and through the Board) and the Board shall have all the powers set forth in the Articles and the Bylaws, together with all legal general powers permitted a nonprofit corporation, and the power to do any and all things which may be authorized, required, or permitted to be done by the Association or the Board under or by virtue of this Declaration, including the power to levy and collect assessments as hereinafter provided. Without in any way limiting the generality of the foregoing, the Association (acting through the Board) and the Board shall have the following powers:

• (a) Powers of Enforcement. The Association shall have the power and authority, from time to time in its own name, on its own behalf, or in the name and behalf of any Owner or Owners who consent thereto, to commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of this Declaration, or to enforce by mandatory injunction, declaratory judgment, or otherwise any provision of this Declaration, or to recover damages or obtain any other relief available at law or in equity as a result of any breach of this Declaration.
• (b) Powers of Administration and Management. In fulfilling any of its duties under this Declaration, including its duties for administering and managing the Association, and for the maintenance, repair, operation, or administration of the Common Areas and Improvements and Facilities, the Association shall have the following powers and authority:
• (i) To obtain, maintain, and pay for such insurance policies or bonds as are required by this Declaration to be obtained by the Association or as the Association may deem to be appropriate for the protection or benefit of the Association, Declarant, the members of the Board, or the Owners;
• (ii) To contract for and pay for, or otherwise provide for, such utility and other services including, without limitation, water, sewer, trash, electrical, telephone, and gas services as the Association may from time to time deem desirable;
• (iii) To contract for and pay for, or otherwise provide for, the services of architects, engineers, attorneys and certified public accountants or such other professional or non-professional services as the Association may deem desirable;
• (iv) To contract for and pay for, or otherwise provide for, fire, police, security, sanitary, communications, transportation and such other services as the Association deems desirable; and
• (v) To contract for and pay for, or otherwise provide for, such materials, supplies, furniture, equipment, services and labor as and to the extent the Association deems desirable, and to pay and discharge any and all liens placed upon any Common Areas or Improvements and Facilities on account of any work performed by the Association.
• (c) Employment of Manager. The Association may, from time to time, employ the services of a manager to manage the affairs of the Association and employees and agents; provided, however, the Association cannot delegate to such manager the power to execute any contract binding on the Association for a sum in excess of Ten Thousand Dollars ($10,000.00) for any one job or service; nor for the performance of any work or services which cannot be completed within sixty (60) days; nor the power to sell, convey, transfer, mortgage, or encumber any Common Areas or Improvements and Facilities. The Declarant shall have the right to appoint the initial manager, which may be the Declarant or a company affiliated with Declarant, provided that the term of such initial management contract shall expire upon the earlier to occur of five (5) years from the date of this Declaration or recordation of the conveyance of all Lots by Declarant to individual Owners unrelated to the Declarant.
• (d) Taxes and Assessments. The Association shall have the right to pay, compromise, or contest any or all taxes and assessments levied against all or any part of the Common Areas and Improvements and Facilities.

5. LIMITATION OF LIABILITY.

No member of the Board or officer of the Association shall be personally liable to any Owner or any other Person for any act, error, or omission of such Board member or Association officer, or for any act, error, or omission of the Association or the Board, or their representatives, employees, agents, and contractors, the Committee or the manager; provided that such member or officer has not acted in bad faith.

6. ASSOCIATION MEMBERSHIP.

• (a) Members of Association. Membership in the Association shall always consist of and be limited to the record Owners of the fee simple title to each Lot; provided, however, that an Owner may, to the extent provided for in any recorded agreement of sale, assign such Owner's membership rights (including voting rights) to the vendee under the agreement of sale, but in no event shall such assignment serve to (i) release the Owner of any of the Owner's obligations and liabilities under this Declaration (including the Owner's personal liability for the payment of all assessments levied by the Association), (ii) diminish or impair any liens created by this Declaration upon the Owner's fee simple title to the Owner's Lot or the priority of such liens, or (iii) diminish or impair any of the Association's rights under this Declaration (including the right to foreclose its lien upon the Owner's fee simple title to the Lot). Any such assignment shall not become effective unless and until a true and correct copy of the recorded agreement of sale has been delivered to the Board.
• (b) Corporate or Partnership Members. For purposes of voting, directorships, officerships, and the exercise of membership privileges, a corporate or partnership Owner may act through or be represented by an officer, director, partner, employee, or other designated representative.
• (c) No Avoidance of Obligations. No Owner may avoid the obligations of membership by nonuse of the Common Areas or Improvements and Facilities, renunciation or abandonment of the Owner's Lot, or any other act of abandonment or renunciation.
• (d) Termination of Membership. No membership shall be terminated, forfeited, or transferred and no member shall be expelled, except upon transfer of the Owner's entire interest in the Owner's Lot.
• (e) Articles and Bylaws. The membership status, rights, duties, privileges, and obligations of an Owner as a member of the Association shall be as set forth in this Declaration and the Articles and Bylaws. Each Owner of a Lot shall at all times comply with and observe all of the provisions of the Articles and Bylaws.
• (f) Suspension of Voting Rights. The voting rights of any Owner may be suspended by action of the Board of Directors during the period when the Owner shall be in default in (i) the payment of any assessment owed under this Declaration, or (ii) the observance of any provision of this Declaration; provided, however, that (A) upon the curing of such default, such Owner's voting rights automatically shall be restored, and (B) prior to suspending such Owner's voting rights, the Board shall give the Owner not less than fifteen (15) days written notice of the Board's proposed action and the reasons therefor, and an opportunity to be heard by the Board, orally or in writing, not less than five (5) days before the effective date of the suspension.

7. LIMITATIONS AND RESERVATIONS.

Declarant specifically reserves unto itself, its successors, and assigns, the right at any time and from time to time, in its sole determination and discretion:

• (a) Easements, Licenses, Etc. To designate and grant to any Person, and/or reserve unto Declarant, easements, licenses, permits, and rights-of-way for public or private access and/or utility purposes, sewer, drainage, gas distribution systems, pedestrian walkways, roadways, electrical, telephone and television-cables, and other or similar purposes and uses in, over, across, through, and under any Common Areas and Improvements and Facilities as Declarant deems appropriate or necessary. In connection with the foregoing reservations, each Owner irrevocably appoints Declarant as such Owner's attorney-in-fact to file maps designating such easements and to grant such easements and rights and to do all things necessary or convenient in connection therewith, and upon Declarant's request, each Owner, promptly and for no additional consideration, shall execute all documents which may be requested by Declarant to designate such easements on any map and to grant such easements and rights.
• (b) Entry and Use. To enter on and use any Common Areas and Improvements and Facilities for the purpose of selling Lots, or of constructing any improvements or changes in or appurtenant to the Common Areas and Improvements and Facilities as it may deem appropriate or necessary, provided that the work is performed in a good and workmanlike manner and free and clear of all liens.
• (c) Assignment of Rights. To assign and transfer, in whole or in part, all or any of its rights, privileges, powers, reservations, interests, and obligations hereunder to any other Person, including without limitation, to any successor designated by Declarant or to the Association.
• (d) Approval of Amendments. To approve or disapprove any proposed amendment to this Declaration.
• (e) Approval of Changes to Common Areas, Etc. To approve or disapprove any change in use of the Common Areas and the Improvements and Facilities, and further to approve or disapprove any and all improvements, alterations, and other work performed to, in, on, over, under, and across the Common Areas and the Improvements and Facilities.
• (f) Transfer to Association of Common Areas, Etc. To transfer from time to time to the Association ownership, possession, and the obligation to maintain, landscape, repair, and replace Common Areas and Improvements and Facilities and other real and personal property and interests (including, without limitation, leases, easements, rights-of-way, and licenses).

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8. ASSESSMENTS.

• (a) Responsibility. Each Owner of a Lot, by acceptance of fee simple title to such Lot, whether or not it shall be expressed in any deed to such Lot or any other conveyance instrument, shall be deemed to covenant and agree to pay such Owner's proportionate share of assessments in accordance with the provisions of this Declaration. No mortgagee of a Lot shall be required to collect assessments.
• (b) General Assessments. At least thirty (30) days prior to the date set for each annual meeting of the Association, the Board shall prepare or cause to be prepared a budget for the upcoming fiscal year of the Association; provided, however, that in the case of the initial budget of the Association, the Board shall have the right (but not the obligation) to adopt such budget at any time (in the Board's sole discretion) after the recordation of this Declaration. Such budget shall cover all of the then applicable estimated costs of all operations, activities, and obligations of the Association, including the cost of operating and maintaining the Common Areas and Improvements and Facilities, as provided herein, the payment of any taxes, insurance, and other expenses of the Association, the cost of performing all of the Association's obligations under this Declaration, amounts for capital expenditures and reserves (if any), and the cost of performing all necessary or desired services. Assessments based on such budget shall be allocated equally among each of the Lots (regardless of such factors as the size, value, or location of the Lots or, except as expressly set forth in Section 8(d), the degree to which a particular Lot may or may not be benefiting from the services performed by the Association). The initial assessments shall commence as of a date determined by the Board in its sole discretion, and no delay in the commencement of such assessments shall in any manner affect, impair, or waive the right of the Board to commence later such assessments. Similarly, the failure to include any particular item or expense within such assessment shall not preclude the inclusion of such item or expense in any later assessment. A copy of the Board's budget and the amount of assessments to be paid by the Owners shall be sent to each Owner at least twenty (20) days before the commencement of the fiscal year (or other period of time) for which such budget applies, or as soon as practicable thereafter; provided, however, that a copy of the initial budget need not be distributed by the Board to the Owners until such budget has been adopted by the Board. If for any reason the Board should fail to adopt a budget for the upcoming fiscal year, then the assessments to be paid by the Owners automatically shall continue on the basis of the last budget in effect; provided, however, that the Board shall have the right to levy supplemental assessments as provided below. Each Owner shall pay the assessments to the Association, in advance, in monthly, quarterly, or semi-annual installments, or in such other reasonable manner and installments as the Board shall designate.
• (c) Supplemental Assessments. In the event that the general assessments payable under subparagraph (b) above prove inadequate for any reason, including nonpayment of any Owner's share thereof or unanticipated damage to any Common Areas or Improvements and Facilities (such as by Acts of God or by Owners or nonowners), the Board may prepare or cause to be prepared a supplemental budget and levy further assessments in the amount of such actual or estimated inadequacy, allocating such supplemental assessments equally among the Owners of each Lot. Such assessments shall be due and payable by the Owners within twenty (20) days after the date of levy, or on such installment basis as may be determined by the Board.
• (d) Special Assessments. In addition to the assessments authorized above, the Board may also levy an assessment against any Owner or limited group of Owners for monies expended by the Association in performing any act, function, or duty (i) directly or indirectly caused by such Owner's or limited group's act, or failure or refusal to act, or failure to comply with this Declaration, the Articles, the Bylaws or the rules and regulations of the Association or (ii) which benefits only such Owner or group and which provide no benefit to other members of the Association as determined by the Board. Such assessment shall be in the amount so expended plus an amount to cover the Association's overhead equal to ten percent (10%) of the amount so expended (or such other amount for overhead as may be determined by the Board), and shall be due and payable to the Association within ten (10) days after the date of levy. Monies so expended shall include, without limitation, reasonable engineers', architects', attorneys', and accountants' fees incurred by the Association.
• (e) Interest and Late Charges. All sums not paid when due from an Owner shall bear interest from the due date until paid in full at the rate of one percent (1%) per month, or at such other interest rate as may be set from time to time by the Board. In addition, each Owner shall be subject to a late charge of five percent (5%) of the unpaid amount if not paid within fifteen (15) days of its due date, or such other late charge as may be set from time to time by the Board. The failure by the Association to collect such interest or late charge shall not constitute a waiver of the right to do so at any time thereafter. An Owner's failure to pay assessments when due shall not constitute a default under a HUD-insured mortgage.
• (f) Lien and Default. Each assessment (whether regular, supplemental or special) and all other sums owed by an Owner under this Declaration shall be a separate, distinct and personal debt and obligation of such Owner. Each assessment or any installment thereof when due, all other sums owed under this Declaration, together with all costs and expenses of collection, including all reasonable attorneys' fees, shall also be and are a continuing and perpetual lien and charge upon the fee simple title to such Owner's Lot and upon the Owner's interest in such Lot. Upon an Owner's failure to pay any such assessment (or installment thereof) or other sums due under this Declaration, the Association may, but need not, record a Notice of Default and Lien in the Bureau of Conveyances of the State of Hawaii. The Association's lien shall be subject and subordinate to the lien of the Paramount Liens as more particularly set out in subparagraph (i) below, but shall be prior to all other liens, encumbrances and interests upon or in the Lot or the Owner's interest in the Lot, including any leases and agreements of sale. The Association's lien may be foreclosed through suit in like manner as a mortgage on real property (including by foreclosure pursuant to Chapter 667, HRS), and the Association shall have the power to bid on the Lot at foreclosure sale and to acquire and hold, lease, mortgage or convey the same. A suit to recover a money judgment for damages or for unpaid assessments and other sums shall also be maintainable without foreclosing or waiving the lien securing the same. The foregoing remedies shall be in addition to any other remedies provided by law or in equity for the enforcement of each Owner's obligations.
• (g) Voluntary Conveyances; Co-Owners. In a voluntary conveyance of any Lot, the transferee of the Lot shall be jointly and severally liable with the transferor for all unpaid assessments and other sums, interest, late charges, and costs of collection, without prejudice to the transferee's right to recover from the transferor the amounts paid therefor by the transferee. If more than one Person owns a Lot or interest therein, all such Persons shall be jointly and severally liable for the payment of all assessments, sums, interest, late charges, and costs of collection.
• (h) Estoppel Certificate. When requested by an Owner or the holder of a first or second mortgage in favor of any institutional lender on such Owner's Lot, the Association shall execute a certificate stating the amount of any delinquent or unpaid assessment owed by the Owner. Such certificate shall, except as to the amount of any unpaid assessments which such certificate failed to reflect due to any checks which, within thirty (30) days before or after the date of the certificate, have been or are dishonored or not otherwise paid, be conclusive upon the Association in favor of all Persons who may in good faith rely thereon, as to the amount of such delinquency as of the date of the certificate. The Association shall be entitled to a reasonable servicing charge as a condition to issuing the certificate. No such certificate, however, shall constitute any representation or agreement by the Association that the Owner is in compliance with any other provision of this Declaration.
• (i) Paramount Liens. Notwithstanding all other provisions of this Section:
• (i) A lien created hereunder upon any Lot shall be subject and subordinate to the following liens and indebtedness secured by such liens (such liens being herein called "Paramount Liens"): the lien of any recorded first or second mortgage in favor of any institutional lender (meaning a mortgage having first or second priority over other mortgages) upon the fee simple interest in the Lot made in good faith and for value. If a Lot should be conveyed pursuant to a foreclosure of a Paramount Lien encumbering such Lot, the purchaser at such foreclosure sale shall not be liable for any assessments or other sums payable under this Declaration and accruing prior to the date of recordation of the conveyance instrument, but shall be liable for all assessments and other sums accruing thereafter. No such conveyance shall relieve the prior Owner of personal liability for the payment of all such assessments and sums accruing prior to such conveyance.
• (ii) No amendment to this subparagraph (i) shall affect the rights of the holder of any Paramount Lien who does not join in the execution thereof.
• (iii) By written subordination agreement authorized by the Board, the benefits of (i) and (ii) above may be extended by the Board to mortgages and other liens not otherwise entitled thereto.

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9. INDEMNITY.

The Association and all Owners and occupants of Lots shall defend, indemnify, and hold harmless Declarant from and against all claims and demands for loss or damage, including property damage, personal injury, or wrongful death, arising out of or in connection with the exercise by them or their agents, contractors, servants, guests, or invitees of any easements and rights hereby created, and shall use and permit the use of the Common Areas and the Improvements and Facilities at their sole risk without any obligation or responsibility whatsoever of Declarant for the condition, control, or other use thereof, and shall jointly and severally reimburse Declarant for any and all costs and expenses, including reasonable attorneys' fees, incurred in connection with the defense of any such claim or demands, or incurred in connection with any act or failure to act by the Association, or in case Declarant, without any fault on its part, shall be made a party to any litigation commenced by or against the Association.

10. USE OF OWNER'S LOT; COMPLIANCE WITH LAWS.

Each Owner and occupant of a lot in the Subdivision shall at all times comply with all applicable laws. In addition, each Owner and occupant shall at all times comply with and observe each of the following provisions; provided, however, that in the event of any conflict between or among the provisions set forth below and applicable laws, the most restrictive provision or law shall control:

10. (a) Use and Site Development Restrictions and Requirements.

• (i) Land Use and Building Type. Each Lot shall be used only for single-family residential purposes, regardless of whether applicable zoning or other laws permit a more intensive or different use. No Lot or residence or other building constructed on any Lot may be sold, transferred, conveyed, leased, occupied, rented or used for or in connection with any time-sharing purpose or under any time-sharing plan, arrangement or program, including without limitation any so called "vacation license," "travel club membership" or "time-interval ownership" arrangement. The term "time-sharing" as used herein shall be deemed to include, but is not limited to, any plan, program or arrangement under which the right to use, occupy, own or possess a Lot or residence or other building upon the Lot rotates among various persons on a periodically recurring basis according to a fixed or floating interval or period of time, whether by way of deed, lease, association or club membership, license, rental or use agreement, co-tenancy agreement, partnership or otherwise. No building shall be placed, altered or permitted to remain on any Lot other than one single-family dwelling and a private garage without the written consent of the Board of Directors of the Association. Any exterior alteration of the Lot or dwelling must first be approved by the Board of Directors of the Association.
  (ii) Further Rezoning Subdivision or Consolidation. No Lot shall be rezoned or subdivided or consolidated with another Lot without Declarant's consent.
  (iii) Utilities. Except for propane gas and trash collection, utility services will be provided to the boundary of each Lot in a completely underground distribution and/or collection system. Propane gas must be kept underground or within an enclosure approved by the Committee. Trash receptacles shall be screened from view of adjacent properties and roadways.
  (iv) Individual Lot Plot Plans. Plot Plans for individual Lots will be furnished to the Owners. Such Plot Plans shall be limited to only a general and graphical representation of utility locations and contours. All grades and contours indicated thereon are approximate and subject to verification by the Owner. It shall be the Owner's responsibility to examine the Plot Plans.
  (v) Easements. Easements for the installation and maintenance of utilities and drainage facilities are as set forth in or are as shown on (a) subdivision map entitled "Makana Subdivision," (b) the deed conveying the Lot to the Owner, and/or (c) the Plot Plan for each Lot. No improvements roof eaves or overhangs, or major plantings shall be placed on, below or above these easements (except by Declarant) without the prior consent of the Committee and any applicable governmental authority.
  (vi) Grading. The Owner shall accept the condition of the Lot in "as is" condition, as of the date of completion of all contracts for the grading, roadway and utility improvements for the Subdivision. All subsequent site work performed by the Owner shall be in strict accordance with plans as approved by the Committee.
  (vii) Lot Drainage. The flow of surface and/or subsurface drainage onto, across or from each Lot shall not be obstructed. Such run-off shall be dispersed or channeled by surface swales or other facilities in such a manner as to prevent erosion and damage to adjacent or nearby properties. No alteration may increase the flow of water into an adjoining Lot. Any changes to the design for Lot drainage facilities proposed by the Owner shall be subject to the prior approval of the Committee. Designs which, in the Committee's opinion, are impractical or do not adequately consider the possible adverse effects on adjoining property, will be disapproved.
  The Owner shall be responsible for any changes in the design of all drainage facilities for the Owner's Lot and will be liable for all claims for damages resulting therefrom. The Committee shall not review the drainage plan for adequacy of engineering technical data or computation, and shall not be responsible for damages to nearby or adjacent properties resulting from inadequate or improper drainage and grading. Drainage design shall require an architect's or engineer's recommendation.
  (viii) Temporary Structures and Surplus Materials. Temporary structures, trailers and construction materials shall be placed on a Lot only at the commencement of initial construction of a dwelling on a Lot and are to be completely removed from the Lot no later than thirty (30) days from the "date of completion," as that term is defined in Section 507-43, HRS. Upon the request of the Committee a refuse disposal bin shall be placed on site and shall be serviced on a weekly basis.

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10. (b) CONSTRUCTION AND ARCHITECTURAL STANDARDS.

• (i) Prior Notice to Committee. The Owner shall give the Committee two (2) weeks advance written notice of the Owner's intent to commence any construction, alteration, or site improvements whatsoever. Prior to commencement of any construction, alteration, or site improvement, the Owner will deposit a copy of the County building permit with the Committee. For additional items, see subparagraph (e) below.
• (ii) Materials and Quality. All lumber shall be treated against termite infestation and shall be guaranteed in writing for a period of three (3) years.
• (iii) Minimum Dwelling Size. Each dwelling constructed upon a Lot, exclusive of garages and attached or detached lanai(s), shall have a minimum of 1,000 square feet of enclosed living area and shall contain a minimum of two (2) bedrooms and one (1) bath.
• (iv) Building Height. No structure shall be constructed on any Lot in excess of two (2) stories in height. In no event shall any structure exceed 30 feet in height measured from the highest point of the roof (but exclusive of chimney).
• (v) Lot Coverage. The maximum lot coverage shall be 50% of the Lot area. The term "lot coverage" shall mean the sum of the gross horizontal areas included within the exterior walls of all structures (including garages) on the Lot, plus any area within the exterior posts supporting a trellis or solid overhead roof or covering.
• (vi) Garage. A garage for at least two (2) cars containing not less than 400 square feet of parking area under roof, shall be attached to each dwelling; provided, however, that such garage may be detached in cases where an attached garage is not practically feasible in the opinion of the Committee, which opinion must be in writing. All garages shall be fully enclosed with roll-up doors or covered doors. Carports shall not be permitted.
• (vii) Ground Termite Treatment.
  (A) Soil under all concrete slabs on the ground and under all building floors, whether on ground or over air space, and under all footings and masonry foundation walls, shall be treated against subterranean termites by a reliable, established, and duly licensed termite control company.
  (B) Treatment shall be guaranteed in writing by said company against termite infestation for a period of three (3) years. The guarantee shall include annual inspection and retreatment of infested areas. A copy of this guarantee shall be delivered to the Committee.
  (C) Chemicals used outside of the buildings or in accessible spaces under the buildings, shall be nonpoisonous to humans, plants, and pets.
• (viii) Foundations. Ground settlement of the filled areas is possible. The Owner and Owner's architect, engineer, and contractor shall give due consideration to the design of the foundation systems of all structures (home, walls, swimming pools, etc.). It is the Owner's responsibility to conduct an independent investigation of all soil on the Owner's Lot.
• (ix) Finished Floor Elevations. To avoid massive retaining walls on street elevations and to control the height of improvements, grading and cutting shall be limited as follows:
  (A) Grading shall be limited as shown on the individual Plot Plans for each Lot. Cuts of greater than 3'-0" or fills of greater than 2'-0" shall require a plan by a civil engineer duly registered as such by the State of Hawaii.
  (B) Cutting and filling shall be kept to a minimum. Grading shall be contoured, with no cut or fill banks greater than thirty percent (30%), unless specifically approved by the Committee to meet unusual site conditions. Pads for homes shall utilize stepped foundations to avoid massive cuts or fills. Cut or fill greater than 1,000 cubic yards shall require special Committee approval, and will not be permitted except under unusual circumstances.
• (x) Antennas. No visible antennas are allowed.
• (xi) Driveways. Alterations to driveways and drop curbs shall be constructed by the Owner following County standards prior to any other work being done, and shall be used during construction to prevent damage to existing concrete gutters, curbs, sidewalks, common area sprinkler systems, and any underground utility lines. Any damage caused by the Owner or the Owner's contractors, employees, or agents shall be the responsibility of the Owner, and shall be immediately and completely repaired to the original condition.
• (xii) Mailboxes. All mailboxes shall be recessed into a designed structure with location and height of box as per postal regulations. House number and name signs shall be of attractive and superior quality design and installed flush with wall surfaces where possible, and shall in no event exceed an aggregate of one square foot in size.
• (xiii) Exterior Lighting. There shall be no exterior lighting of any type, either installed or maintained, the light source of which is visible from neighboring property, except as permitted by the Committee. Colored lights (non-white), fluorescent or high intensity discharge exterior lights are not permitted.
• (xiv) Exterior Sound Devices/Noise. The level of noise or sound pressure emanating from any Lot shall not exceed the maximum level permitted for single-family residential districts under applicable County ordinances, or if no such ordinance exists, then the maximum level permitted under the ordinances of the City and County of Honolulu. Should undue noise result from the operation of the Owner's air conditioning and/or swimming pool filtering pump unit or units, the Owner shall without delay or upon request of the Committee, design additional soundproofing methods, and shall upon prior approval of these methods by the Committee, proceed expeditiously with necessary adjustments. Noise in excess of permitted limits shall be terminated immediately.
• (xv) Swimming-Pools, Spas and Ponds. Swimming pools and ponds shall be kept operable in accordance with the rules and regulations of the State Department of Health. If abandoned or if a pool or pond becomes a nuisance, the owner shall demolish, remove the pool or pond, and, insofar as is practicable, restore the land to a condition approximating that which existed prior to the construction of the pool or pond, and properly landscape and maintain the restored area. The method of demolishing the pool or pond shall be subject to prior Committee approval. Pool equipment rooms shall be sound treated to prevent noise nuisance.
• (xvi) Solar Energy and Heat Pumps. Solar energy installations shall be, as much as practicable, hidden from view by recessing them into the roof or incorporating them into a flat roof section, and shall be installed at the same angle of slope and plane as the roof. The intent is to create an architecturally pleasing integration of the solar panels into the roofline. Roof mounted composite solar collector and water storage tanks systems are not allowed.
• (xvii) Vehicles, Trailers, and Watercraft. Cars, vehicles, trailers, and watercraft shall not be parked continuously or regularly on roadway lots within the Subdivision. Without limiting the foregoing, any vehicle, trailer, or watercraft parked on a roadway lot for more than 24 consecutive hours shall be in violation of this provision. Only occasional parking by guests or by vehicles servicing a Lot shall be permitted on such roadway lots.
• (xviii) Vehicle Repair. No automobile or other vehicle, watercraft, or other equipment, may be dismantled, repaired, or serviced on any Lot so as to be visible from adjoining or neighboring Lots or from any roadway.
• (xix) Abandoned Construction or Alteration. If construction or alteration of a dwelling is at any time abandoned, the Lot Owner shall cause the Lot to be cleared and landscaped (in the case of initial construction) or evidence of alteration removed so as to present a neat appearance, and shall thereafter so maintain the Lot until the recommencement of construction or alteration.
• (xx) Roof Materials, Pitch, and Overhang. Built up tar and gravel roofing is discouraged, and in any case will be permitted only for flat roof construction. Only flat roofs of exceptional design and quality will be considered for approval. Pitch roofs shall use shake, shingle, or tile material. The following roof materials are not permitted: rolled roofing, fiberglass, or plastic. A tile sample shall be submitted for Committee approval as to color, style, and texture. Roof overhangs, as measured horizontally, shall not exceed six (6) feet. Corrugated metal, steel, or aluminum and other roof materials may be approved on a case-by-case basis in the discretion of the Committee. Color should be consistent with the surrounding neighborhood. White, reflective, and bright primary colors will be discouraged.
• (xxi) Exterior Walls/other Materials/Colors. No garish, reflective, or stark white colors shall be allowed. Color chips must be submitted to the Committee for review and prior approval.
• (xxii) Fences, Walls, Hedges, and Trees. Retaining walls and foundations of more than three (3) feet in height or where placed upon embankments or filled areas, shall be designed by a duly registered architect or civil/structural engineer. All fences, walls, and incidental garden structures except those constructed by Developer shall be approved by the Committee and designed so as to be attractive from all viewable sides with a height limit of seven (7) feet as measured from finished grade level. If a wall is located at the street frontage, the area between the wall and the property line shall be adequately landscaped. Property line fences shall be developed in common with adjacent property Owners to eliminate double fencing. No tree shall exceed a height of thirty (30) feet. The provisions of this subparagraph (xxii) shall not apply to any walls constructed by Declarant.

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10. (c) CONSTRUCTION REQUIREMENTS.

• (i) Blasting. No blasting shall be permitted except by Declarant.
• (ii) Dumpsters. No dumpsters or construction materials and debris may be left in the streets, Common Areas, or adjacent property without the prior approval of the Committee.
• (iii) Contractor's Acknowledgment. Each Owner shall be required to have his or her contractor contact the Committee prior to commencing any construction, alteration, or other work upon the Owner's Lot if the cost of such work exceeds $10,000. The contractor shall be provided with a copy of the applicable design and construction requirements and shall be required, prior to commencing any construction, alteration, or other work, to acknowledge in writing the contractor's receipt of, and agreement to comply with, such requirements.

10. (d) LANDSCAPING STANDARDS.

• (i) Required Landscaping. The Lot shall be landscaped and maintained in a manner consistent with that of a first-class residential development. Landscaping shall be commenced on or before ninety (90) days after initial occupancy of the dwelling and shall be completed on or before one (1) year after initial occupancy of the dwelling.
• (ii) Top Soil. Top or fill soil material brought to the site by the Owner shall be free of clay, termites, and/or other deleterious matter.

10. (e) LOT MAINTENANCE.

Each Owner of a Lot in the Subdivision shall at all times keep and maintain the Lot in an attractive manner, free of tall grass or weeds, trash, litter, and debris and shall not store or keep upon the Lot any vehicle(s), watercraft(s), or unsightly material. Without limiting other rights of enforcement provided in this Declaration, if an Owner fails or neglects to comply with the requirements of this subparagraph, the Association, after fifteen (15) days written notice to the Owner(s), may, directly or by way of contract(s) with others, do all acts and things necessary or convenient to bring such Lot into compliance with this subparagraph including but not limited to the cutting of grass and weeds and the removal of the litter, trash, debris, or other unsightly material. The Association may charge the cost and expense of bringing the Lot into compliance to the Owner(s) of such Lot as provided herein.

10. (f) APPROVALS, PROCEDURES, AND REQUIREMENTS.

• (i) Architectural Controls. No structure shall be erected, placed, or altered on any Lot until construction plans and specifications referred to in subparagraph (iii) below, prepared under the immediate and direct supervision and stamped by an architect with a current license to practice in the State of Hawaii, have been submitted to and approved by the Committee, and the Owner submits to the Committee a written acknowledgment (the form of which shall be prepared or approved by the Committee) from both the Owner and the Owner's general contractor, that they have received a copy of, and agree to abide by, this Declaration. Committee approval shall also be required of landscaping plans before any landscaping or planting is permitted. It is recommended that the approvals described above be obtained before any materials are ordered or purchased for such structure or the Lot. In the event the proposed improvement or alteration is for repainting (decorating the exterior of any structure in a manner affecting only the exterior color thereof), it shall only be necessary to obtain Committee approval of the color scheme prior to the commencement of such work. The approval of the Committee may be withheld, without limitation, upon any of the following grounds:
  (A) The work of construction or alteration shown on the plans and specifications and other materials submitted, fails to comply with the conditions, covenants and restrictions set forth herein or in any other applicable document which is administered by the Committee.
  (B) The improvements shown on the plans and specifications and other materials submitted, are deemed unsatisfactory in location, design, exterior design, or color, or would not be in harmony with the other improvements located within the Subdivision.
  Approval of any plans and specifications shall not be deemed to waive the right of the Committee to object to the same or similar plans or specifications or any feature or element embodied therein, if and when the same or similar plans, specifications, features, or elements are submitted for approval for use on other Lots in the Subdivision.
• (ii) Procedures for Submitting Plans. For any construction or alteration the cost of which exceeds $20,000.00 each Owner shall be required to have the Owner's architect submit to the Committee not less than the following items for the Committee's review and approval prior to commencing any such construction, alteration or other work upon the Owner's Lot:
• (A) Preliminary Plans. Preliminary plans must include but are not limited to the following:
  1) One-1/4" scale floor plan.
  2) Four-1/8" scale exterior elevations with materials indicated.
  3) Two-1/8" scale site/building cross sections elevations and roof height elevations noted.
  4) One-1/8" scale site plan showing building placement, roof overhangs, building square footage, access, percentage of allowable buildable area covered, finish floor elevations with adjacent exterior corner grade elevations, drainage design, preliminary grades, conceptual landscape plan, compass, tradewind and solar orientations, drive-way, retaining walls, fences, lanais, deck, patios, easements and building setbacks, existing street tree locations, utility hookups, all site dimensions, and lot number.
• (B) Final Plans. Final plans must include but are not limited to the following:
  1) Final working drawings.
  2) Landscape and irrigation plans.
  3) Specifications.
  4) 100% performance bond and 100% labor and materials payment bond.
  Upon securing the Committee's approval for all of the above, the Owner shall submit a copy of the building permit prior to the commencement of construction.
• (iii) Applicable Laws. The Owners or their respective architects, engineers, or other professionals, shall be responsible for all submissions to the appropriate state and county agencies and for complying with all applicable laws, regulations, ordinances, and codes, and shall acquire all permits and approvals necessary before commencement of any construction or alteration.

10. (g) RESERVATIONS AND LIMITATIONS.

• (i) Variances and Amendments. The Committee reserves the right at any time in its sole discretion to amend, modify, waive, grant variances to, or not enforce any requirements herein specified with respect to any Lot or Lots without any liability whatsoever to the Owners or occupants of any other Lots or to any other Person and without impairing or otherwise affecting such requirements with respect to all other Lots.
• (ii) Delegation of Authority. The Committee shall have the right to delegate the administration (including the right to approve or reject designs, colors, plans, and specifications) and/or enforcement of part of all of those standards and restrictions to any other Person, including Declarant. The written decision or disposition of any such delegates shall be binding upon the Committee.
• (iii) Nonliability. Neither Declarant nor the Committee nor any director, officer, employee, agent, or member of Declarant or the Committee, shall be liable to the Association, or to any Owner, or to any other Person, for any damage, loss, or prejudice suffered or claimed on account of (i) the approval or rejection of, or the failure to approve or reject, any plans, drawings, and specifications, or other request submitted by an Owner pursuant to this Declaration, whether or not defective, (ii) the construction of any improvement or performance of any w