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HomeMy WebLinkAboutSnowy Butte Station CC&Rs DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR SNOWY BUTTE STATION, A PLANNED COMMUNITY INVESTORS II, LLC, an Oregon limited liability company ("Declarant) is the owner, in fee simple of that real property located in the Jackson County, Oregon, known as Snowy Butte Station PUD Phases 1 and 2, as the same is particularly described in plat number on file with the County Clerk of Jackson County, Oregon, recorded in Vol. Page (Phases 1 and 2) The plat is attached hereto as Exhibit "A" and incorporated herein by reference. Phases 1 and 2 are part of a larger parcel of real property (the "Real Property") described in Exhibit "B", attached hereto and incorporated herein by this reference. Recitals, Intent and Purposes Snowy Butte Station Phases 1 and 2 is a Class I Planned Community, and is subject to the Planned Community Act (ORS 94.550 to 94.783). It is the desire and intention of Declarant to subject the Real Property to the covenants, ~, conditions and restrictions set forth in this Declaration. It is the desire and intention of Declarant to subdivide other portions of the Real Property. In so doing, Declarant may determine to make other portions of the Real Property subject to the covenants, conditions and restrictions set forth in this Declaration, and such additional or other limitations, covenants, conditions and restrictions applicable to such other portions of the Real Property so that the Phases 1 and 2 and such other portions of the Real Property shall be an integrated and interrelated project. This Declaration applies to all Lots within Phases 1 and 2, according to the official plat thereof, now of record. Declaration NOW, THEREFORE, Declarant declares that the Phases 1 and 2 and such other portions of the Real Property as may hereafter be developed as provided in Section 9 (all of which property now or hereafter subject to this Declaration is called "the Project") shall be held, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved, subject to the following covenants, conditions and restrictions, all of which are in furtherance of a plan for the subdivision, improvement and sale of the Project as an interrelated development, and which are established for the purpose of enhancing and perfecting the value, desirability and attractiveness of the Project. All of the covenants, conditions and restrictions herein set forth shall run with the Project and shall be binding on all parties having or acquiring any right, title or interest in the Project or any part thereof, and shall be for the benefit of each Owner of any g ~ "„ ~~ ~~ t Y,v. -~}{ portion of the Project, or any interest therein, and shall inure to the benefit of and be binding upon each successor in interest of such Owners. Name The name by which the Project shall be known is SNOWY BUTTE STATION PUD PHASES 1 AND 2. DEFINITIONS In addition to the terms elsewhere defined herein, the following terms shall have the following meanings whenever used in this Declaration: 1.1 Declarant. INVESTORS II LLC, an Oregon general partnership, is the Declarant. All rights and obligations of the Declarant pursuant to this Declaration shall be binding upon and inure to the benefit of the respective successors and assigns of Declarant. 1.2 Owner. The record Owner, or Owners, if more than one, of a Lot, including Declarant and including a vendee under a recorded land sale contract or recorded memorandum of land sale contract. 1.3 Real Property. The Real Property is described on Exhibits "A" through "B" attached hereto. 1.4 Project. The Real Property as described on Exhibit "A", attached hereto. 1.5 Lot. That discrete parcel of the Property conveyed or to be conveyed by the Declarant to an individual Owner in fee simple. For the purposes of this Declaration, a Lot shall exist from and after the date of recording of the Final Plat for the Property. 1.6 Dwellin Unit. The residential structure constructed on a Lot, including any garage, carport, patio, lanai or other physical appurtenance to such structure. 1.7 Common Area. All of the Project, excepting the Lots therein but including easements on Lots or other real property which have been or will be duly conveyed to the Association with the exceptions as described on the title report. The common area shall include the common areas designated and described on Exhibit "C". Some common area is designated for park usage and storm detention. These areas shall be owned and insured by the City of Central Point, but maintained by the Association. 1.8 Association. Snowy Butte Station Homeowner's Association. 1.9 Board. The Board of Directors of the Association. Page 2 ~' 1.10 Articles; Bylaws. The Articles of Incorporation and Bylaws of the Association, respectively. The Bylaws are marked Exhibit "D", incorporated herein and made a part hereof. 1.11 Declaration. This Declaration, as from time to time amended or supplemented. 1.12 Mortua~e. A mortgage or a deed of trust of record encumbering a Lot. The term "Mortgagee" shall include the beneficiary under a deed of trust and the vendor under a recorded land sale contract or recorded memorandum of land sale contract. 1.13 Architectural Committee. The Architectural Committee as created pursuant to Section 6. 1.14 Architectural Rules. A document or documents which specify architectural, landscape architectural and engineering guidelines as of the date of the sale of the first Dwelling Unit, and as maybe subsequently amended or supplemented upon recommendation by the Architectural Committee and approved by the Board. RESIDENTIAL COVENANTS FOR THE RESIDENTIAL AREA OF THE PUD ONLY 2.1 Land Use and Building Type Lots and Dwelling Units shall be used for mixed use and residential purposes, except as specifically provided for in this Declaration and zoned on ~, the plat. No building shall be erected, altered, placed, or permitted to remain on any lot without the approval of the Architectural Control Committee ("ACC"). The commencement of any construction prior to the written approval of the ACC shall constitute a violation of the CC&R's. All costs resulting from any required alteration to the plans by the ACC, including but not limited to construction, legal, architectural, engineering shall be the sole responsibility of the lot owner in violation of this requirement. One and two-story homes, in addition to a basement level, maybe approved. All homes shall be constructed on site. Mobile and modular homes shall not be permitted. No building shall be occupied until the building is 100% complete. The foregoing provisions shall not exclude construction of churches, schools, parks, walking trails, or amenities associated with same. The foregoing provisions shall not exclude construction of a private greenhouse, storage unit, private swimming pool, or other such structures typically associated with residential use, provided the location of such structures is in conformity with the ACC and applicable municipal regulations and is compatible in design and decoration with the residence constructed on such lot and has been approved by the ACC. 2.2 Dwellin Size. Unless approved in writing by the ACC, the ground floor of a one-story dwelling, exclusive of open porches and garage shall not be less than 1200 square feet Page 3 and for a multiple level dwelling, two-story dwelling, split-entry home, or daylight basement home, the principal living level shall have a minimum square footage of not less than 800 square feet, exclusive of open porches and garages. 2.3 Dwelling Locations & Building Setbacks. Setback requirements are specifically defined in the City of Central Point's TODD zone zoning ordinances, and are to be approved by the ACC. The ACC may increase the requirements established by the City of Central Point zoning ordinance. The requirements for the TODD zone are more defined in the ordinances of the City of Central Point. 2.4 Landscaping (a) Landscape Plan. The improvement of all Lots shall incorporate a landscape plan. Landscaping shall be designed, installed, and completed pursuant to standards adopted by the ACC. The plan, including soil removal or additions and contour grading, shall be approved in writing by the ACC prior to commencement of any landscape work being done. The landscape plan may include lawn in the park strips in the front yard. The owner shall install all landscaping within six (6) months from the date of completion of the residential dwelling. Landscape plans shall include a drainage plan. All drainage plans must be designed to eliminate excess water pooling or excess drainage to adjacent lots. All proposed retaining and feature walls must be ~ shown on the site plans and landscape plans. (b) Street Trees. Owners shall be required to plant two (1) street tree per Lot throughout the Property. Corner Lot Owners shall be required to plant four (2) street trees, two per each street, within thirty (30) days after completion of a Dwelling Unit, or within one (1) year after the recordation of final plat, whichever occurs first. Owners are required to plant trees conformity with the standards set forth by the City of Central Point, the approved street tree plan and pursuant to the landscaping plan approved by the ACC. In the event an Owner fails to install landscaping and trees consistent with the standards adopted by the ACC, and/or fails to install within the aforementioned timeframe, the Developer shall impose a penalty upon the Owner of $500.00 per day for each day that the landscape and trees are in violation of said standards, or not installed within the requisite time, unless a variance is granted in writing from the ACC. (c) Landscape Maintenance. Landscaping is to be well maintained and shall remain in conformance with the original approved plan unless changes are approved by the ACC. If the Owner(s) does not perform the required maintenance, the ACC may perform the necessary maintenance and or changes necessary. The Owner(s) who has failed to perform the required maintenance or changes as determined by the ACC shall be liable for all damages resulting therefrom, including, without limitation, all costs of completing the necessary Page 4 ~`-' maintenance or changes thereon. '`.~ 2.5 Easements. Each Lot shall be conveyed to Owners, other than Developer, and thereafter held by such Owners, their successors and assigns subject to any and all easements of record at the time of the initial conveyance of the particular Lot involved to an Owner other than Developer for the use and benefit of the several authorized public and/or other utilities, including but not limited to, cable television, sanitary sewers, water, gas, and electrical and drainage easements, and no Owner shall damage or interfere with the installation and maintenance of such utilities, or in any manner change the direction or flow of drainage channels in any such easements, or in any manner obstruct or retard the flow of water through drainage channels in any such easements. 2.6 Business or Commercial Uses. No trade, craft, business, profession, commercial or similar activity, except as a home occupation approved by the City of Central Point, shall be conducted on any lot. No heavy equipment, vehicles in excess of 12,000 G.V.W., materials, or supplies used in connection with trade, services, or business shall be kept or stored on or in front of any residential lot, except the right of any builder and the Developer to construct residences on any lot and to store construction equipment and materials on said lots in the normal course of said construction, and to use any residence as a sales office or model home for purposes of sales in Snowy Butte Station PUD Phases 1 and 2. This restriction does not apply to industrial or commercial lots. 2.7 Parking and Storage_Garage Doors shall remained closed unless in use. No vehicle of any type shall be parked or left on any portion of the Property other than within a Lot's driveway or garage. This provision does not exclude guest parking on streets provided such parking location is approved by the City of Central Point. All of the following vehicles and categories of vehicles shall be subject to the following special restrictions of this section in the residential portion of the PUD only: (a) Any commercial vehicle, including a bus or any vehicle which exceeds 12,000 pounds gross vehicle weight, or which has a wheelbase exceeding 133 inches. (b) Any farm vehicle or equipment; (c) Any boat; (d) Any trailer fitted or designated to be pulled by any other vehicle; (e) Any vehicle within the generally recognized category of recreational vehicle, including a camper or camper body which is or may be mounted upon apick-up truck; Page 5 `r (f) Any vehicle which is inoperable. No vehicle described above may be permanently or semi-permanently parked anywhere within the Property (including any street, driveway or yard area), unless it is enclosed within a garage, or parked behind a screened fence. Recreational vehicles maybe permitted for temporary periods of not more than twenty-four (24) hours each, and of not more than seventy-two (72) hours during any thirty (30) day consecutive period for loading and unloading purposes. Any Owner who parks or permits the prohibited parking of any such vehicle on the Project shall be deemed to commit a nuisance. No vehicle of any type (including regular passenger cars, motorcycles, bicycles or any other Vehicle) shall be parked on any street or other portion of the Property for the purpose of accomplishing repairs thereto or the reconstruction thereof, except for emergency repairs and then only to the extent necessary to enable movement of the vehicle. Violation of this prohibition against repairing vehicles shall also constitute a nuisance. An occasional, temporary period of parking allowed pursuant to this Section shall not be followed, within twenty-four (24) hours, by a subsequent, occasional, temporary period of parking. 2.8 Nuisances. No noxious or offensive activity shall occur on any lot nor shall anything be done thereon which maybe, or may become, an annoyance or nuisance to the neighborhood. 2.9 Temporary Structures. No trailer, tent, shack, garage, barn, motor home, or other ~,, temporary building or structure of any kind shall be used at any time for a residence either temporary or permanent. Temporary buildings, trailers or structures maybe used by Developer during the sales and construction or improvement of Lots, but shall be removed within a reasonable period of time after the completion of construction with that portion of the Property. 2.10 Fences and Hed es. Unless a variance is granted in writing from the ACC: (a) On residential lots, hedges or site-obscuring plantings shall not exceed three feet (3') in height in the front yard or on the side lot lines forward of the front building line. (b) No fences shall be constructed in the front yard or on the side lot lines within two feet (2') of the front building line. (c) No fences shall be constructed within ten feet (10') from the side lot line if said lot line abuts a street. The maximum height of a site obscuring fence or hedge shall not exceed six feet (6') in height. Fences shall be well constructed of suitable fencing materials, and approved by ACC. (d) Fence tops are to be constructed level, grade changes are to occur at the fence post. Any other grade changes of the fencing must be approved by ACC. The use of chain-link fencing maybe approved; however, vertical slats and/or powder Page 6 coating in an earth tone color must be incorporated into the fence. 2.11 Si s. No signs shall be erected or placed on any lot except one (1) "For Sale" or "For Rent" sign placed by the Owner, the Developer, or by a licensed real estate agent not exceeding twenty-four inches (24") in height and thirty-six inches (36") in width. This restriction shall not prohibit the temporary placement of two "political" signs of the same dimension on any lot by the Owner, or the placement of a professional sign by the Developer, which must comply with any applicable City of Central Point sign ordinances. 2.12 Animals, Livestock and Poultry. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any Lot. Dogs, cats, or other household pets maybe kept provided that they are not kept for breeding, or maintained for any commercial purposes, or in unreasonable numbers, and provided they do not create a public nuisance. Commercial areas will be controlled by City of Central Point ordinances for the TODD zone. All pets must be kept on a leash when on public ways. The owner or caretaker of such pet will be responsible for the cleanup of feces caused by the pet. No animal shall be walked without the caretaker/owner having a litter removal bag in their possession and visual to public view 2.13 Garbage and Refuse Disposal. No Lot shall be used or maintained as a dumping ~, ground for rubbish. Trash, garbage, or other waste, shall be kept in sanitary, covered containers. In no event shall trash containers be maintained so as to be visible from neighboring property. 2.14 Completion of Construction. Construction of any Dwelling Unit shall be completed, including exterior decoration, within ten months (10) from the date of the start of construction unless a written extension is granted by the ACC. All lots shall, prior to the construction of improvements thereof, be kept in a neat and orderly condition and free of brush, vines, weeds, debris, and the grass thereon cut or mowed at sufficient intervals to prevent the creation of a nuisance or fire hazard, and in accordance with the City of Central Point ordinances. No Dwelling Unit shall be occupied permanently or temporarily prior to 100% completion. 2.15 Sidewalks. Within thirty (30) days after completion of a Dwelling Unit, or within one (1) year after the recordation of the final plat, whichever occurs first, Owners are required to construct sidewalks along the front and side (corner lot) of the Lot in conformity with the standards set forth by the City of Central Point. 2.16 Retaining_Walls. It will be the responsibility of each Owner to retain his or her Lot on the uphill and downhill side of said Lot with suitable material to assure the stability of the Lot being retained if any excavation alters grade in such a manner that retaining becomes necessary. All retaining walls must be approved by ACC and, if required, by the City of Central Point. `r/ Page 7 2.17. Swimmin Pools. No swimming pool shall be constructed in any front yard of any lot in the Property. No inflated plastic enclosures or permanent pool enclosures of any kind maybe constructed or installed without the approval of the ACC. 2.18 Poles and Overhead Wires. No poles shall be permitted within the subdivision except poles that are installed by the City of Central Point as street light standards. Flags, official or decorative, are allowed when mounted on the front, side, or back of the house. Height and size restrictions shall apply. No overhead wires shall be erected or used for any purpose. No outside radio or television antennae will be allowed. Satellite discs maybe approved by the ACC if they are limited in size and the location and height is approved by the ACC. 2.19 Ri t of Inspection: Upon twenty-four (24) hours written notice (emergencies excepted) and during reasonable hours, any authorized member of the Board, or any authorized representative of the Board, shall have the right to enter upon and inspect the Lot and the exterior of the Dwelling Unit or any of the improvements thereon for the purpose of ascertaining whether or not the provisions of these Restrictions, the Bylaws and the rules and regulations adopted by the Board, have been or are being complied with, and such persons shall not be deemed guilty of trespass by reason of such entry or inspection. If such inspection is made by the Architectural Committee upon authorization by the Board, a report shall be made to the Board which will decide the action to be taken. These rights shall be exercised in such a manner as to reasonably \,,, minimize any adverse impact upon the Owner's right to enjoyment of his Lot. 2.20 Penalties for Violations: The Board may adopt a schedule of penalties which shall be imposed upon Owners for violations of the requirements and restrictions set forth in this Section 2, the remainder of this Declaration and the Bylaws of the Association. Following the adoption or revision of such schedule and at least thirty (30) days prior to the imposition of any penalties pursuant to such schedule, the Board shall cause a copy of the schedule to be mailed to all Owners. The penalties maybe imposed with or without further notice as provided in the schedule of penalties. Penalties imposed for such violations shall constitute a Special Lot Assessment, as provided in Section 4.4. 2.21 All buildings, structures, fencing and any other amenity located on commercial and/or industrial lots must be approved by the ACC and in a manner to stisfy the City of Central Point's TODD zone ordinance. ASSOCIATION 3.1 Organization. The Association is a nonprofit Oregon corporation charged with the duties and invested with the powers prescribed bylaw and set forth in the Articles, the Page 8 `. Bylaws, and this Declaration. Neither the Articles nor Bylaws shall, for any reason, be amended or otherwise changed or interpreted so as to be inconsistent with this Declaration. In the event of any such inconsistency, the provisions of this Declaration shall prevail. The Board of Directors of the Association, and such officers as the Board may elect or appoint, shall conduct the affairs of the Association in accordance with the Articles and Bylaws as from time to time amended. 3.2 Subsidiary Associations. Nothing in this Declaration shall prevent the creation, by provision therefore in Supplemental Declarations, of subsidiary associations to assess, regulate, maintain or manage portions of the Real Property subject to such Supplemental Declarations or to own or control portions thereof for the common use or benefit of Lots in the portion of the Real Property subject to such Supplemental Declarations. 3.3 Membership. Each Owner shall be a Member of the Association and shall be entitled to one membership for each Lot owned. Each Member shall have the rights, duties and obligations set forth in this Declaration, the Articles, the Bylaws and the Association Rules, as the same may from time to time be amended. The membership of each Owner in the Association shall be appurtenant to the Lot giving rise to such membership, and shall not be assigned, transferred, pledged, conveyed or alienated in any way except upon the transfer of title to such Lot, and then only to the transferee of title thereto. Any transfer of title to a Lot shall operate automatically to transfer the membership in the Association appurtenant thereto to the new Owner thereof. For purposes of membership, the recording of a land sale contract or memorandum thereof shall constitute a transfer of the title to a Lot. 3.4 Voting. (a) Members Entitled to Vote. Only Members of the Association shall be entitled to vote. The voting privileges of each Class of Members shall be as provided herein. Any action by the Association which must have the approval of the Association membership before being undertaken shall expressly require the vote or written assent of a prescribed percentage of the total voting power of the Association, as more particularly stated within the Declaration. (1) Class A Members. Class A Members shall have one (1) vote for each Lot. When more than one person owns a single Lot, all Owners shall be members of the Association. However, the vote for each Lot must be cast as a unit, and fractional votes shall not be allowed. In the event that joint Owners are unable to agree among themselves as to how their vote or votes shall be cast, they shall lose their right to vote on the matter in question. If any Owner (or Owners) casts a vote representing a certain Lot, it will thereafter be conclusively presumed for all purposes that such Owner(s) was acting with the authority and consent of any other Owners of said Lot. The right to vote may not be severed or separated from the lot ownership to which it is appurtenant, and any sale, transfer, or conveyance of such Lot to a new Owner or Owners shall operate to transfer the appurtenant vote without the requirement of any express reference thereto. Page 9 (2) Class B Member. The Class B Member shall be the Declarant, its successors and assigns. The Class B Member shall be entitled to three (3) votes for each Lot in which it holds the interest required for membership as provided in Section 3.4(a)(1) above. Class B membership shall be converted to Class A membership and shall forever cease to exist when seventy-five percent (75%) of the lots are conveyed to retail Owners other than Declarant. (b) Voting Procedures. Any vote may be cast in person or by proxy. All proxies shall be in writing, dated, signed by the Owners giving the proxy and filed with the Secretary before the commencement of any meeting. A proxy shall terminate one year after its date unless the proxy specifies a shorter term. Every proxy shall automatically cease upon the sale of the Lot by the Owner and upon the death or incapacity of the Member who executed the proxy. (c) Declarant's Right To Vote. Notwithstanding any other provision of this Declaration, and except as provided in Section 8.3, any provision of this Declaration which provides for approval by a prescribed percentage of Members' votes, other than the Declarant, shall be effective and construed also to require the affirmative vote of a majority of the total votes of all Members, including the Declarant. (d) Suspension of Voting_Ri ts. The voting rights of an Owner shall be suspended during such period as any assessment due hereunder from such Owner remains `r unpaid; provided, however, that the Board shall give any such Owner at least fifteen (15) days notice prior to such suspension, and such Owner shall be entitled to a hearing before the Board in accord with Section 3.4 of the Bylaws. 3.5 Initial Board of Directors. The initial Board shall be appointed by Declarant. Thereafter, the Board shall be elected as provided in the Bylaws. 3.6 Duties of the Association. The Association shall have the obligation and duties, subject to and in accordance with this Declaration, to do and perform the following acts for the benefit of its Members and for the maintenance and improvement of the Real Property. (a) Common Area and Lot Maintenance and O eration. To maintain and otherwise manage the Common Area, all other improvements located thereon, all easements for operation and maintenance purposes over the Common Area, and all easements for the benefit of Members of the Association within the Common Area. Common Area includes areas dedicated to the City of Central Point for open space, park land and storm detention. (b) Open Space/Retention Area. The Association is required to maintain the common area utilized for storm water retention, designated on the final plat. (c) Utilities. To acquire, provide and/or pay for water, sewer, garbage disposal, refuse pickup, electrical, telephone, gas and other necessary utility services for the Page 10 '\r Common Area. (d) Other. To perform such other acts, whether or not expressly authorized by this Declaration, as may be reasonably necessary to enforce any of the provisions of this Declaration and Association Rules. Each Owner hereby grants to the Association anon-exclusive easement of ingress and egress to that portion of his Lot as maybe reasonably required by the Association to exercise or otherwise perform its duties under this Section 3.6. 3.7 Powers and Authority of the Association . The Association shall have all of the powers of a nonprofit corporation organized under the General Non-profit Corporation Law of the State of Oregon, subject only to such limitations upon the exercise of such powers as are expressly set forth in the Articles, the Bylaws, or this Declaration. The Association shall have the power to do any and all lawful things which maybe authorized, required or permitted to be done by the Association under this Declaration, the Articles and the Bylaws, 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, including without limitation: (a) Assessments. To levy assessments on the Owners and to enforce payment of such assessments, all in accordance with the provisions of Sections 4 and 5. '\r (b) Ri t of Entrv and Enforcement. To enter upon any Lot or the Common Area for the purpose of performing the duties of the Association set forth in Section 3.6, enforcing by peaceful means any of the provisions of this Declaration or maintaining or repairing any area required to be maintained by an Owner if for any reason whatsoever such Owner fails to maintain or repair such area. Such entrance upon a Lot shall be a$er twenty-four (24) hours prior written notice to the Owner; provided, however, that such entrance shall be permitted upon consent of at least one Board member without any prior notice whatsoever in the event of an emergency. An emergency shall be deemed to exist when there is a condition causing peril or threat to persons or property. The Association shall also have the power and authority from time to time in its own name, on its own behalf or on 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 and to enforce, by mandatory injunction or otherwise, all of the provisions hereof. These rights shall be exercised in such a manner as to reasonably minimize any adverse impact upon the Owner's right to enjoyment of his Lot. (c) Easements and Rights-of--Way. To grant and convey to any third party easements and rights-of--way in, on, over and under the Common Area for the purpose of constructing, erecting, operating or maintaining thereon, therein or thereunder overhead or underground lines, cables, wires, conduits, or other devices for the transmission of electricity for lighting, heating, power, telephone and other purposes, public sewers, storm water drains and pipes, water systems, sprinkling systems, water, heating and gas lines or pipes, cable TV lines, security system lines and any similar public or quasi-public improvements or facilities. Page 11 (d) Employment of Manager. To employ the services of a person or firm to manage the Common Area and the affairs of the Association ("the Manager") to the extent deemed advisable by the Board. To employ the services of such other personnel as the Board shall determine to be necessary or proper for the operation of the Common Area, whether such personnel are employed directly by the Association or are furnished by the Manager. (e) Services. To contract for materials and/or services for the Common Area or the Association. Any such service contract or management contract pursuant to Section 3.7(d) shall be subject to termination by either party without cause upon thirty (30) days notice in writing to the other party. (f) Rules. By a majority vote of the Board, and from time to time, to adopt, amend, enforce and repeal such rules and regulations as the Board shall determine to be necessary or proper for the operation of the Project ("the Association Rules"). The Association Rules shall govern the use of the Lots and the Common Area by any Owner, by the family of such Owner, or by any invitee, licensee or tenant of such Owner; provided, however, that the Association Rules may not discriminate among Owners and shall not be inconsistent with this Declaration, the Articles or Bylaws. A copy of the Association Rules as they may from time to time be adopted, amended, or repealed, shall be mailed or otherwise delivered to each Owner. Upon such mailing or delivery, the Association Rules shall have the same force and effect as if set forth in and a part of this Declaration. The Association Rules shall not materially change the rights, preferences, or privileges of any person, or the restrictions on any Lot, as herein set forth. FUNDS AND ASSESSMENTS 4.1 Operating and Reserve Funds. The Association shall establish and maintain an operating fund into which shall be deposited all monies paid to the Association as regular, special and emergency Assessments and miscellaneous fees, and from which fund the Association shall make disbursements in the performance of its rights and duties as provided for in this Declaration. The Association shall also establish and maintain a reserve fund for replacement of all items of common property which will normally require replacement, in whole or in part, in more than three (3) and less than thirty (30) years. The items maybe identified in the reserve account as those which are insurable by a common carrier of all purpose risk insurance. The operating fund and the reserve fund shall be kept in separate accounts. All expenses of the Association for its performance of its rights and duties under this Declaration shall be paid from the operating fund and the reserve fund and shall be shared among the Owners as provided for the payment of assessments in this Section 4. All profits of the Association shall be deposited in the operating fund and reserve fund as maybe determined by the Board and shall be shared equally by the Owners. Page 12 4.2 Regular Assessments. Within forty-five (45) days prior to the beginning of each fiscal year, the Board shall estimate the costs and expenses to be incurred by the Association during such fiscal year in performing its rights and duties under this Declaration, which benefit the Association or all Owners, in general, as opposed to direct benefit to a Lot or the Owners of a Lot, including a reasonable provision for unanticipated expenses and replacements and less any anticipated surplus from the prior year's fund. Within thirty (30) days after adopting a proposed annual budget for the Association, the Board shall provide a summary of the budget to all Owners. The Board may not, without the vote or written assent of a majority of the voting power of the Association residing in members other than the Declarant, impose a regular annual assessment per Lot which is more than twenty percent (20%) greater than the regular assessment for the immediately preceding fiscal year. Such estimated amount shall be assessed equally to the Owners. The amount per Lot so assessed to each Owner is called "the Regular Assessment." 4.3 Special or Emergency Assessments. In addition to the Regular Assessments, the Board may levy during any fiscal year a Special or Emergency assessment applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair of any common watered areas or utilities, unexpected repair or replacement of the Common Area, including the necessary fixtures and personal property related thereto, or any extraordinary expense not contemplated by this Declaration of whatsoever nature which results in a benefit to the Association or all Owners, in general, as opposed to a direct benefit to a Lot or the Owners of a Lot, provided that, in any fiscal year, the Board may not, without the vote or written assent of a majority of the voting power of the Association residing in members other than the Declarant levy Special or Emergency assessments to defray the costs of any action or undertaking on behalf of the Association which in the aggregate exceed five percent (5%) of the budgeted gross expenses of the Association for that fiscal year. No Special or Emergency assessment shall be levied with respect to the initial construction of the Common Area, or with respect to the construction by the Declarant of additional Common Area hereafter annexed to the Project and made subject to this Declaration, it being understood that all such construction shall be at the sole cost and expense of the Declarant. Except as otherwise provided herein, Special and Emergency assessments shall be assessed to the Owners equally and shall be paid as the Board shall determine. The provisions herein with respect to Special and Emergency assessments do not apply in the case where the assessment against a member is a remedy utilized by the Board to reimburse the Association for costs incurred in bringing the Member and his Lot into compliance with the provisions of this Declaration or the Bylaws. 4.4 Special and Emer ency Lot Assessments. The Board may levy, during any fiscal year, Special or Emergency Lot Assessments for the purpose of defraying all costs and expenses incurred by the Association for the repair or maintenance necessitated by the failure of an Owner or tenant to maintain a Dwelling Unit or Lot and by the failure or breach by an Owner of the provisions of this Declaration, Association Rules or Bylaws and for the purpose of imposing penalties for violations of the provisions of this Declaration as provided in Section 2.18. ~r Page 13 4.5 Payment of Assessments. Each Owner shall be obligated to pay Regular Annual Assessments made pursuant to this Section 4 to the Association on or before the first day of January, in advance, or in such other manner as the Board shall designate. The Board shall provide each Owner with a statement of such assessment within thirty (30) days prior to the beginning of each fiscal year, but shall not be obligated to provide monthly statements to any Owner therea$er. Special or Emergency Assessments and Special or Emergency Lot Assessments shall be payable in such manner as the Board shall designate. A delinquent payment on an assessment shall accrue interest at the rate of twelve (12%) per annum commencing ten (10) days following the due date of the payment. In addition, a late fee of $5.00 per month, for each month that the assessment is not paid shall be charged to cover administration expenses. Accrued interest and late fees shall be deemed part of the assessment. 4.6 Commencement of Assessments. The Regular Assessments shall commence upon the close of the sale of the first Lot to someone other than Declarant. The first Regular Assessment shall be adjusted according to the number of months remaining in the fiscal year. The initial payment due with respect to a partial month from an Owner, other than Declarant, shall be prorated as of the close of escrow for the purchase of such Owner's Lot. All other assessments shall commence as the Board shall determine. The Association shall, within ten (10) days after demand and upon payment of a reasonable fee as determined by Resolution of the Board, furnish to an Owner a certificate signed by an officer of the Association stating whether assessments on his Lot have been paid. ENFORCEMENT OF ASSESSMENTS 5.1 Covenant to Pay Assessments. Declarant covenants for each Lot owned, and each Owner, other than Declarant, by acceptance of a deed to a Lot, shall be deemed to covenant to pay assessments levied in accordance with Section 4. 5.2 Enforcement. Each assessment levied hereunder shall be a separate, distinct and personal debt and obligation of the person who was the Owner of such Lot at the time such assessment became due and payable. In the event of a default in payment of any such assessment, the Association may enforce each such obligation by any and all remedies provided bylaw. In the event the Association brings an action to enforce each such assessment obligation, any judgment rendered in any such action shall include a sum for reasonable attorneys' fees in such amount as the Court may adjudge against the defaulting Owner, including reasonable attorneys' fees on appeal. At any time when an assessment of any type provided for by this Declaration or an installment thereof is delinquent, the Association, by and through its Board or designated agent, may file a notice of lien in the deed records of Jackson County, Oregon, against the Owner and Lot to which the assessment pertains as provided by ORS 94.709. Page 14 ~' ARCHITECTURAL CONTROL 6.1 Membership: Appointment and Removal The Architectural Control Committee, herein referred to as the ACC, shall consist of three (3) members, who shall be appointed by the Developer. The Developer shall appoint all of the initial members of the ACC and all replacements until one hundred percent (100%) of all Lots in the Development have been conveyed to Owners other than Developer and all Dwelling Units are constructed or ten (10) years from the date of this Declaration, whichever occurs first. C.A. Galpin, Dan Bunn and Angela Torano are hereby appointed as the initial members of the ACC. Developer may remove any member of the ACC at any time, and may appoint new members at any time. Developer shall keep on file at its principal office, a list of names and addresses of the members of the ACC. Upon the expiration of the initial ACC, the owner shall take control of the ACC and appoint members pursuant to paragraph 8 hereof. 6.2 Action. Except as otherwise provided herein, any two (2) members of the ACC shall have the power to act on behalf of the ACC, without a public meeting. 6.3 Duties. It shall be the duty of the ACC to consider and act upon any and all proposals or plans submitted to it pursuant to the terms hereof, to ensure that any painting or exterior coverings or improvements constructed, which shall also include landscaping and plantings, on the Property by anyone other than the Developer conforms to plans approved by the ACC. Except for the original construction by Developer and except for purposes of proper `,. maintenance and repair or as otherwise in this Declaration provided, it shall be prohibited to install, erect, attach, apply, paste, hinge, screw, nail, build, alter, plant, remove or construct any lighting, shades, railings, screens, awnings, patio covers, decorations, fences, sprinkler lines and heads, parking spaces, driveway aprons, hedges, landscaping features, aerials, antennas, radio or television broadcasting or receiving devices, slabs, sidewalks, curbs, gutters, patios, balconies, driveways, carports, covered parking spaces, walls, fireplaces, solar panels, gutters and downspouts, or to make any change or otherwise alter (including any alteration in color), in any manner whatsoever the exterior of any Lot or Dwelling Unit within the Property or to remove or alter any windows or exterior doors of any Dwelling Unit until the complete plans and specifications, showing the location, nature, shape, height, form of change shall have been submitted to and approved in writing as to safety, and harmony of design, color and location in relation to surrounding structures and topography, by the ACC. All plans approved by the ACC shall conform to the Design Guidelines adopted by the Architectural Committee. All exterior materials must also be approved by the ACC. 6.4 Application for Approval. Any Owner, except the Developer and its designated agents, proposing to perform any work of any kind whatever which requires the prior approval of the ACC pursuant to any provision in this Declaration, shall apply to the ACC for approval by notifying the ACC in writing of the nature of the proposed work and furnishing construction plans and specifications, showing the nature, shape, height, materials, colors, and an elevation from curb level, together with detailed plans showing the proposed location of the same on the particular building. All of the foregoing information must be submitted to the ACC Page 15 at least sixty days (60) prior to the commencement of any proposed construction. These plans must be stamped by the ACC prior to submitting to the City of Central Point for a building permit. Failure on the part of the ACC to act within said sixty-day (60) period shall be deemed an approval thereof. ACC will provide a written date of receipt to each plan. Roofing requirements and materials are controlled by the ACC and may include: 1. Architectural composition shingles (30 years or better). 2. Tile (concrete, or synthetic; in earth tones). Any other architectural features will be approved or disapproved upon submission of plans to the ACC. Architectural elements, such as masonry, may be required to enhance the exterior elevations of the home. All approvals or disapprovals given under this Article III shall be in writing. The ACC's decision shall be final. 6.5 Inspection of Work. Inspection of work and correction of defects therein shall proceed as follows: (a) Upon the completion of any construction or reconstruction or the alteration or refinishing of the exterior of any improvements, or upon the completion of any other ~, work for which approved plans are required under this Article, the Owner shall give written notice thereof to the ACC. (b) Within forty-five (45) days thereafter the ACC, or its duly authorized representatives, may inspect such improvement to determine whether it was constructed, reconstructed, altered, or refinished to substantial compliance with the approved plans. If the ACC finds that such construction, reconstruction, alteration, or refinishing was not done in substantial compliance with the approved plans, it shall notify the Owner in writing of such noncompliance, specifying particulars of noncompliance, and shall require the Owner to remedy such noncompliance. (c) If upon the expiration often (10) days from the date of such notification, the Owner shall have failed to remedy such noncompliance, the Developer, at its option, may either remove the noncomplying improvement or remedy the noncompliance, and the Owner shall reimburse the Developer for all expenses incurred in connection therewith upon demand. (d) If for any reason the ACC fails to notify the Owner of any noncompliance within forty-five (45) days after receipt of said notice of completion from the Owner, the improvement shall be deemed to be in accordance with said approved plans. 6.6 Liability. Neither the Developer, the ACC, or any member thereof or their Page 16 `rr delegates shall be liable to any Owner for any damage, loss or prejudice suffered or claimed on account of (a) the approval or disapproval of plans, drawings and specifications, whether or not defective, (b) the construction or performance of any work, whether or not pursuant to approved plans, drawings and specifications, (c) the development of any property within the Project or (d) the execution and filing of an estoppel certificate whether or not the facts therein are correct; provided, however, that such member has acted in good faith on the basis of such information as may be possessed by him. Without in any way limiting the generality of the foregoing, the ACC, or any member thereof, may, but is not required to, consult with or hear the views of any Owner with respect to any plans, drawings, specifications or any other proposal submitted to the ACC. Approval by the ACC does not mean said ACC is warranting or incurring any liability for the structural adequacy of the plans, drawings and specifications submitted to and approved by said ACC. Plans, specifications and drawings may require building permits and other entitlements from the appropriate governmental agencies. 6.7 Failure to Comply with ACC Requirements. Developer intends that the ACC be for the benefit of the Owners of the Property, to ensure construction that iswell-designed, attractive, and consistent throughout the community. As such, in the event an Owner fails to obtain approval prior to construction or reconstruction, and/or fails to construct in accordance with approved plans approved by the ACC, the Developer shall impose a penalty upon the Owner of $1,000.00 per day for each day that the construction continues or remains without approval or in violation of such approval. ~,- 6.8 Expiration of ACC's Duties. The powers and duties of the initial ACC shall continue for one (1) year after completion of all of the residential construction and the sale of said Lots to Owners other than Developer, in Snowy Butte Station PUD Phases 1 and 2 a planned community, or until ten (10) years from the date of this Declaration, whichever occurs first. At such time, the ACC shall call a meeting of the Owners for the purpose of turning over the ACC duties to Owners, other than Developer, and for Owners to nominate three (3) new members to the ACC. At the time of turnover, the ACC will otherwise continue to operate under the rules stated in the Declaration, or as otherwise amended by the Owners. 6.9 Non-Waiver. Consent by the ACC to any matter proposed to it and within its jurisdiction under these covenants shall not be deemed to constitute a precedent or waiver impairing its rights to withhold approval as to any similar matter thereafter proposed or submitted to it for its consent. PROPERTY RIGHTS AND EASEMENTS 7.1 Conveyance of Common Area. The Declarant hereby covenants for itself, its successors and assigns, that, prior to or at the Turnover Meeting required by ORS 94.609, it will convey title to the Common Area of Phases 1 and 2 to the Association, free and clear of all liens and encumbrances, except the covenants, conditions and restrictions herein set forth, easements and utility rights-of--way then of record. All of the Common Area shall be for the use and benefit Page 17 ``' of not only the residents of Phases 1 and 2, but also the residents of subsequent Phases when annexed as a part of the Project pursuant to Section 9. The Declarant further covenants for itself, its successors and assigns, that they will convey title to the Common Areas of subsequent Phases made subject to this Declaration free and clear of all liens and encumbrances, except the covenants, conditions and restrictions herein set forth and in applicable Supplementary Declarations and easements and utility rights-of--way then of record, prior to the turnover meeting required by ORS 94.609. 7.2 Easements in Common Area. Every Owner shall have a right and nonexclusive easement of enjoyment in and to the Common Area and any easements shown on the final plat, a nonexclusive easement for ingress and egress over and through the Common Area. Such easements shall be appurtenant to the following: (a) The rights and easements of Owners of Lots in subsequent portions of the Real Property annexed to the Project pursuant to Section 9, it being understood that all such Owners will possess the rights and easements of members of the Association specified in this Section 7.2. (b) The right of the Association to sell, transfer or encumber all or any portion of the Common Area to a person, firm or entity, whether public or private, and the right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authority, or utility for such purposes and subject to such conditions as maybe agreed to by the '~. Owners. No such sale, transfer, encumbrance or dedication shall be effective except upon the prior vote or written consent of Members representing sixty-six and two-thirds percent (66 2/3%) of the voting power of the Association and sixty-six and two-thirds percent (66 2/3%) of the voting power in members other than the Declarant; provided, however, that a dedication required by a governmental agency as a condition to a recording a final plat covering any portion of the Real Property shall require no such prior vote or written consent. 7.3 Dele ation. Any Owner may delegate his right of use and enjoyment to the Common Area to the members of his family or tenants who reside on his Lot. Tenants shall not have the right to further delegate the Owner's right to use and enjoy the Common Area. As to tenants, such Owner shall notify the Association in writing of such delegation and the names of such delegees. The rights and privileges of any delegee shall be in accordance with and subject to this Declaration; provided, however, that the Owner making such delegation (and his Lot) shall remain liable for the assessments herein provided for and subject to all of the terms and conditions of this Declaration. 7.4 Utility Easements. Each Lot shall be conveyed to Owners, other than Declarant, and thereafter held by such Owners, their successors and assigns subject to any and all easements of record at the time of the initial conveyance of the particular Lot involved to an Owner other than Declarant for the use and benefit of the several authorized public and/or other utilities, including but not limited to, cable television, sanitary sewers, water, gas, and electrical and drainage easements, and no Owner shall damage or interfere with the installation and Page 18 maintenance of such utilities, or in any manner change the direction or flow of drainage channels in any such easements, or in any manner obstruct or retard the flow of water through drainage channels in any such easements. DEVELOPMENT RIGHTS 8.1 Limitations of Restrictions. Declarant is undertaking the work of constructing commercial, industrial, and residential units, and incidental improvements upon the Lots included within the Project, including property which may be subsequently annexed thereto. The completion of that work and the sale, rental and other disposal of said Dwelling Units is essential to the establishment and welfare of said property. In order that said work maybe completed and said property be established as a fully occupied community as rapidly as possible, nothing in these Restrictions shall be understood or construed to: (a) Prevent Declarant, its contractors, or subcontractors, from obtaining reasonable access over and across the Common Area of the Project or from doing on any Lot or any portion of the Project, including property annexed thereto, whatever is reasonably necessary or advisable in connection with the completion of said work; or (b) Prevent Declarant or its representatives from erecting, constructing and maintaining on any part or parts of the Project, including property annexed thereto, such structures as may be reasonably necessary for the conduct of its business of completing said ``,, work and establishing said property as a mixed use community and disposing of the same in parcels by sale, lease, or otherwise; or (c) Prevent Declarant from conducting on any part of the Project, including property annexed thereto, its business of completing said work and of establishing said property as a mixed use community and of disposing of said property in parcels or lots by sale, lease or otherwise, including the right to maintain model homes and sales offices; or (d) Prevent Declarant from maintaining such signs within the Project, including property annexed thereto, as may be necessary for the sale, lease or disposition of the lots therein, including the right to maintain a sales and resale office in or on some portion of the Project owned by Declarant. 8.2 Declarant's Development Ri ts. Notwithstanding any other provision herein contained, Declarant expressly retains unalterable rights to develop the Project, in the manner deemed desirable by Declarant in Declarant's sole discretion, provided, however, that Declarant has or shall obtain governmental consents where required bylaw. This Declaration shall not in any manner constitute a limitation on Declarant's fee title rights to any of the Real Property, excepting Phases 1 and 2, prior to development hereunder, nor shall it impose any obligation on Declarant, or any other person or entity to improve or develop any of the Real Property. Upon development of all the Real Property Declarant shall have Page 19 '~• constructed or shall construct the following amenities which shall be a part of the Common Area: Open Space/Retention Area 2. Park Areas 3. Landscaping of Common Area 4. Lighting of Common Area 5. Irrigation of Common Area Said amenities shall be constructed no later than the time when all Lots have been sold by Declarant. It is anticipated that development of the Real Property will extend over a period of years, and for that reason the Declarant shall retain the flexibility to develop the Real Property in the manner deemed best by Declarant in Declarant's sole discretion. Declarant's reserved rights shall include the power to restrict access to portions of the Common Area as reasonably necessary during the course of construction, and thereafter, for health, safety, privacy and security purposes, as deemed appropriate by Declarant. There shall be no limitation other than that imposed by appropriate governmental agencies having jurisdiction upon Declarant's rights to ~„ develop and sell the property in any manner deemed appropriate by Declarant. Nothing in this Declaration shall limit the right of Declarant to commence and complete construction of improvements to the Project or to alter the foregoing or the Lots or Common Area or to construct such additional improvements (including fencing) as Declarant deems advisable prior to the completion and sale of the entire Real Property. Declarant shall have a matchline easement over and across all boundary lines in the Common Areas for the purpose of adding or removing materials to insure that the boundary lines between the Common Areas and the Lots in the Project are appropriately aligned. Provided, however, except as otherwise provided herein, after completion and acceptance by the Association of each parcel of the Common Area, it may be altered by Declarant only with approval of sixty-six and two-thirds percent (66 2/3%) of the Class A Members. Declarant may use any of the Lots within the Project owned by him for model homesites, sales offices, and parking therefor, and for any other purpose for which Declarant may use the Common Area as provided herein. Declarant may use any dwellings upon Lots owned by him as a temporary overnight residence and for promotional purposes in connection with its sales program. Declarant shall have the right and easement to enter upon, use and enjoy and designate and permit others (including without limitation, Declarant's agents, employees, representatives, contractors and prospective purchasers and lenders) to enter upon, use and enjoy the Common Area, including but not limited to, all streets, sidewalks, parking areas and open areas, for common driveway purposes, for drainage and encroachment purposes and for ingress to and ~r Page 20 °~. egress from the Common Areas for the purpose of completing improvements thereon or for the performance of necessary repair work and for entry onto adjacent property in connection with the development of additional Phases of the overall project; provided, however, that the exercise of such right and easement shall not unreasonably interfere with the reasonable use and enjoyment of the Common Area by the Members. Declarant reserves the right to alter his construction and development plans and designs as he deems appropriate, subject to applicable governmental approvals. The rights of Declarant under this Declaration maybe assigned to any successor or successors to all or part of said entity's respective interests in the Real Property, by an express assignment incorporated in a recorded deed, option or lease, as the case maybe, transferring such interest to such successor. This Declaration shall not limit the right of Declarant at any time prior to acquisition of title by a purchaser from Declarant to establish on any Lot additional licenses, reservations and rights-of- way to himself, to utility companies, or to others as may from time to time be reasonably necessary to the proper development and disposal of the Real Property. 8.3 Consent of Declarant to Amendments. Until Declarant shall sell all of the Lots in the Project, no amendment to this Declaration shall be effective to curtail or eliminate Declarant's development rights set forth herein without Declarant's consent. ANNEXATION OF ADDITIONAL PROPERTIES 9.1 Alternative Procedures . Additional property maybe annexed to and become subject to this Declaration, from time to time, by either of the following methods: (a) Upon approval in writing of the Association, pursuant to a sixty-six and two-third's (66 2/3's) majority of the voting power of its Members, and asixty-six and two-third's (66 2/3's) majority of the voting power in Members other than the Declarant, to add such additional property to the scheme of this Declaration and to subject it to the jurisdiction of the Association, by the filing of record a Supplementary Declaration, as described in Section 9.3 below. (b) All or any part of the Real Property maybe annexed to the Project by Declarant, from time to time, and made subject to the scheme of this Declaration and subject to the jurisdiction of the Association without the assent of the Association or its members subject to the following conditions: (1) The development of the additional properties shall be in accordance with a general plan of development approved by the County of Jackson, Oregon and the City of Central Point; (2) A Supplementary Declaration, as described in Section 9.3 below, shall be recorded covering the applicable portion of the Real Property; Page 21 (3) Any additional Common Area to be annexed as a part of the annexation of additional property maybe developed as determined at the sole discretion of Declarant; (4) Voting rights relating to membership in the Association will continue to be allocated on the basis of one (1) vote for each Lot except that Declarant shall continue to have three (3) votes for each Lot owned by Declarant; provided that this provision shall not limit the establishment of any sub-associations or the determination of voting rights in such sub-associations as it relates to the particular area of the Real Property that has been annexed; (5) Upon the annexation of any Lots, Common Area expenses shall continue to be apportioned equally among all Lots; (6) The proposed annexation will not result in an overburdening of the common interests. (7) The proposed annexation will not result in a substantial increase in assessments against existing Owners which was not disclosed to such Owners. 9.2 Deannexations. In order to correct any errors in legal descriptions or to correct any faulty annexations of property, Declarant may deannex, without the consent of the ~,-~ Association or Owners, any of the Real Property so annexed provided that such property is comprised of Lots, and the Lots have not been improved with Dwelling Units or have not been sold to a retail purchaser, or, if comprised of Common Area, has not been conveyed to the Association. Such right of deannexation shall not expire. Upon any such deannexation, voting rights relating to membership in the Association will continue to be allocated on the basis of one (1) vote for each Lot except that Declarant shall continue to have three (3) votes for each Lot owned by Declarant; provided that this provision shall not limit the establishment of any sub- associations or the determination of voting rights in such sub-associations as it relates to the particular area of the Real Property that has been annexed. Upon any such deannexation, Common Area expenses shall continue to be apportioned equally among all Lots. 9.3 Supplementary Declaration. The additions or deannexation authorized under this Section 9 above shall be made by filing of record a Supplementary Declaration of covenants, conditions and restrictions, or similar instrument, with respect to the additional properties, which instrument shall extend the framework of this Declaration to such properties. Each such Supplementary Declaration may contain such complementary additions and modifications of the covenants, conditions and restrictions contained in this Declaration as maybe necessary to reflect the different character, if any, of the added properties. In no event, however, shall any such Supplementary Declaration revoke, modify or add to the covenants, conditions and restrictions established by this Declaration as to Phase 3 except as herein otherwise provided. DAMAGE OR DESTRUCTION Page 22 ~r 10.1 Insurance Proceeds Sufficient . In the event of damage or the partial destruction of any of the Common Area improvements in the Project, and if the available proceeds of the insurance carried pursuant to the Bylaws are sufficient to cover not less than eighty-five percent (85%) of the cost of repair or reconstruction thereof, the damaged or destroyed improvements shall be promptly repaired and rebuilt substantially in accordance with the original design and standard of construction of the damaged or destroyed improvement, unless, within ninety (90) days from the date of such damage or destruction, at a duly constituted meeting of the Association, Members representing seventy-five percent (75%) of the total voting power of the Association determine that such repair and reconstruction shall not take place. 10.2 Insurance Proceeds Insufficient. If the available proceeds of such insurance are less than eighty-five percent (85%) of the cost of repair or reconstruction, such repair or reconstruction may, nevertheless, take place if, within ninety (90) days from the date of such damage or destruction, Members representing fifty-one percent (51%) of the total voting power of the Association so elect at a duly constituted meeting of the Association. 10.3 Assessments. If the Members determine to rebuild, either pursuant to Section 10.1 or Section 10.2 above, each Owner shall be obligated to contribute such funds as maybe necessary to pay his proportionate share of the cost of reconstruction, over and above the insurance proceeds. Such additional amount shall be assessed to each Owner in the manner provided in Section 4. 10.4 Failure to Rebuild. If rebuilding of the Common Areas shall not be authorized, either pursuant to Section 10.1 or Section 10.2, above, any available insurance proceeds shall be collected by the Association and used by the Association for such Common Area improvements, repair and other expenses associated with the Common Area as it shall deem appropriate. MORTGAGEE PROTECTION 11.1 Mortgages Permitted. Any Owner may encumber his Lot with Mortgages. 11.2 Subordination. Any lien created or claimed under the provisions of Oregon law or of this Declaration is expressly made subject and subordinate to the rights of any First Mortgage that encumbers any Lot or other portion of the Project, made in good faith and for value, and no such lien shall in any way defeat, invalidate, or impair the obligation or priority of such First Mortgage unless the First Mortgagee expressly subordinates his interest, in writing, to such lien. 11.3 Effect of Breach. No breach of any provision of this Declaration shall invalidate the lien of any Mortgage made in good faith and for value, but all of the covenants, conditions and restrictions shall be binding on any Owner whose title is derived through foreclosure sale, trustee's sale, or otherwise. Page 23 `'" 11.4 Non-Curable Breach. No Mortgagee who acquires title to a Lot by foreclosure or by deed in lieu of foreclosure or assignment-in-lieu of foreclosure shall be obligated to cure any breach of this Declaration that is non-curable or of a type that is not practical or feasible to cure. 11.5 Ri t to Appear at Meetings. Any Mortgagee may appear at meetings of the Members and the Board. 11.6 Right to Furnish Information. Any Mortgagee may furnish information to the Board concerning the status of any Mortgage. 11.7 Right to Examine Books and Records Etc. The Association shall make available to Owners, prospective purchasers and First Mortgagees, current copies of the Project Documents and the books, records and financial statements of the Association. "Available" means available for inspection, upon request, during normal business hours or under other reasonable circumstances. 11.8 Owners' Ri t to In~'ess and Egress. There shall be no restriction upon any Owners' right of ingress and egress to his Lot, which right shall be perpetual and appurtenant to his Lot Ownership. 11.9 First Mortgagee Assessment Liability. Any First Mortgagee who obtains title to a Lot pursuant to the remedies provided in the Mortgage or foreclosure of the Mortgage shall not ~ be liable for such Lot's unpaid Assessments or Individual Charges which accrue prior to the acquisition of title to such Lot by the Mortgagee. 11.10 Distribution: Insurance and Condemnation Proceeds. No provision of the Project Documents shall give a Lot Owner, or any other party, priority over any rights of the First Mortgagee of the Lot pursuant to its Mortgage in the case of a distribution to such Lot Owner of insurance proceeds or condemnation awards for losses to or a taking of the Lot and/or Common Area. AMENDMENTS 12.1 Procedure. Except as otherwise herein expressly provided, until the two (2) class voting structure of the Association is converted to one (1) class voting, this Declaration maybe amended by an instrument in writing signed and acknowledged by the President and Secretary of the Association, certifying that such amendment has been approved by members representing at least seventy-five percent (75%) of the total voting power of each class of membership of the Association. At such time as the two (2) class voting structure has been converted to one (1) class voting pursuant to the provisions hereof, any such amendment shall be approved by seventy-five percent (75%) of the total voting power of the Association and seventy-five percent (75%) of the votes of members other than the Declarant. Provided that, the percentage of the voting power necessary to amend a specific clause or provision shall not be less than the percentage of affirmative votes prescribed to take action under said clause or Page 24 ~ provision. Provided further that, the Declarant shall have the power and authority to amend this Declaration when required by a governmental agency as a condition to obtaining a permit. 12.2 Limitations. Notwithstanding the above, all Owners, their successors and assigns shall maintain all private streets, if any, within the Project. Private street improvements shall be maintained in a condition as good as the condition originally approved by the County. No amendment which would alter or remove the obligation to maintain such private roads maybe approved without first obtaining an amendment to the land use application with Jackson County. GENERAL PROVISIONS 13.1 Binding Effect; Term. The covenants, conditions and restrictions of this Declaration shall run with the land, and shall inure to the benefit of and be enforceable by the Association, or any Owner, their respective legal representatives, heirs, successors, and assigns. 13.2 Nuisance. Every act or omission whereby any provision of this Declaration is violated in whole or in part is hereby declared to be a nuisance and maybe enjoined or abated, whether the relief sought is negative or affirmative action, by Declarant, the Association or any Owner. 13.3 Violation of Law. Any violation of any state, municipal, or local law, ordinance or regulation, pertaining to the Ownership, occupation or use of the Project or any part thereof is "`.• hereby declared to be a violation of this Declaration and subject to any or all of the enforcement procedures set forth herein. 13.4 Condemnation of Common Area. If at any time all or any portion of any Common Area, 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 Association. Any such award to the Association shall be deposited into the operating fund of the Association. No Owner shall be entitled to any portion of such award, and no Owner shall be entitled to participate as a party, or otherwise, in any proceedings relating to such condemnation, such right of participation being herein reverted exclusively to the Association, or other holder of the fee title which shall, in its name alone, represent the interests of all Lot Owners to the extent such Lot Owners have any interest. 13.5 Obligations of Owner. No Owner may avoid the burdens or obligations imposed on him by this Declaration through non-use of the Common Area or by abandonment of his Lot. Upon the conveyance, sale, assignment or other transfer of a Lot to a new Owner, the transferring Owner shall not be liable for any assessments levied with respect to such Lot after the date of such transfer, and no person, after the termination of his status as an Owner and prior to his again becoming an Owner, shall incur any of the obligations or enjoy any of the benefits of an Owner under this Declaration. 13.6 Notice of Sale. Within five (5) business days after the consummation of the sale W Page 25 "`- of any Lot under circumstances whereby the transferee becomes an Owner thereof, the transferee shall notify the Association in writing of such sale. Such notification shall set forth (i) the name of the transferee and his transferor, (ii) the street address of the Lot purchased by the transferee, (iii) the transferee's mailing address, and (iv) the date of sale. Prior to receipt of such notification, any and all communications required or permitted to be given by the Association, the Board or the Architectural Committee shall be deemed to be duly made and given to the transferee if duly and timely made and given to his transferor. 13.7 Notices. Any written notice or other documents relating to or required by this Declaration maybe delivered either personally or by mail. If by mail, such notice or document shall be deemed to have been delivered and received five (5) calendar days after a copy thereof has been deposited in the United States postal service, postage prepaid, addressed as follows: (a) If to the Association, to the address designated by the Association as its principal office address in the Articles of Incorporation. (b) If to an Owner, to the address of any Lot owned, in whole or in part, by him or to any other address last furnished by an Owner to the Association: (c) If to Declarant: INVESTORS II LLC 744 Cardley Avenue, Suite 100 ~, Medford, OR 97504 Provided, however, that any such address maybe changed at any time by the party concerned by delivering a written notice of change of address to the Association. Each Owner of a Lot shall file the correct mailing address of such Owner with the Association, and shall promptly notify the Association in writing of any subsequent change of address. 13.8 Cumulative Remedies. Each remedy provided by this Declaration is cumulative and not exclusive. 13.9 Partial Invalidity. The invalidity or partial invalidity of any provision of this Declaration shall not affect the validity of enforceability of any other provision. 13.10 Number; Gender. The singular shall include the plural and the plural the singular unless the context requires the contrary, and the masculine, feminine and neuter shall each include the masculine, feminine or neuter, as the context requires. COMMERCIAL AND INDUSTRIAL USES 14.1 Commercial and Industrial Uses: The record owners, their heirs, legal representatives, assigns, and lessees hereby acknowledge and agree to accept by the placement of this covenant or the acceptance and recording of this instrument, that the property herein Page 26 'rr- described is situated near land planned and zoned by the City of Central Point and Jackson County for commercial and industrial land uses, and as such maybe subjected to common, customary, and accepted industrial processing and manufacturing processing and manufacturing practices that often occur on a 24-hour basis. Said practices ordinarily and necessarily produce noise, dust, heat, glare, heavy truck or other traffic, smoke, vapor, vibration, odors, fumes and other types of visual, odor, or noise impacts which lot owners and their assigns accepts as normal and necessary industrial practices and as part of the risk of purchasing, leasing or renting a structure and living hear near an industrial area. IN WITNESS WHEREOF, Declarant has executed this Declaration this _ day of February, 2006. INVESTO~j~II, LLC ~~ C.A. G lpm Dan Bunn, Individually and as Partner of Rubicon Investment Limited Partnership "Declarant" Personally appeared C.A. Galpin who acknowledged said instrument to be his and its ~„ voluntary act and deed. Before me: Notary Public for Oregon State of Oregon ) 2006 ss. County of Jackson ) Personally appeared Dan Bunn, individually and as Partner of Ribicon Investment Limited Partnership who, being duly sworn, did say that said instrument was signed on behalf of said partnership by authority of its Operating Agreement; and he acknowledged said instrument to be his and its voluntary act and deed. Before me: Notary Public for Oregon State of Oregon ) ss. County of Jackson ) 2006 Page 27