DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR SOUTH MAIN PLACE PHASES 1 AND 4 A PLANNED COMMUNITY

Transcription

1 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR SOUTH MAIN PLACE PHASES 1 AND 4 A PLANNED COMMUNITY PDK PROPERTIES, LLC an Oregon limited liability company and MICHAEL KOHN (collectively "Declarants") are the Owners in fee simple of that real property located in the City of Talent, County of Jackson, State of Oregon, known as South Main Place Phases 1 and 4 (the Project ) and more particularly described in Exhibit A attached hereto and incorporated herein by reference. Phases 1 and 4 are part of a larger planned unit development (the PUD ) described in Exhibit B attached hereto and incorporated herein by reference. Recitals, Intent and Purpose SOUTH MAIN PLACE is a Class I Planned Community, and is subject to the Planned Community Act (ORS to ). South Main Place PUD is a mixed use development consisting of both townhome and commercial development. It is the desire and intention of Declarant to subject the Project to the covenants, conditions, and restrictions set forth in this Declaration. This Declaration applies to Phases 1 and 4 according to the official plat thereof, now of record. Declaration NOW, THEREFORE, Declarants hereby declare that 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 portion of the Project, or any South Main Place Commercial Owners Association CCRS Page 1

2 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 SOUTH MAIN PLACE PHASES 1 AND 4. ARTICLE 1 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. PDK PROPERTIES, LLC and MICHAEL KOHN and their heirs, personal representatives, successors and assigns, except that no person or entity shall have any rights as Declarant merely by virtue of Declarant s sale of a Lot to that person or entity. All rights and obligations of the Declarants pursuant to this declaration shall be binding upon and inure to the benefit of the respective successors and assigns of Declarants. 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 PUD. South Main Place PUD, Phases 2 and 3, as more particularly described on Exhibit B hereto. 1.4 Project. Phases 1 and 4 of SOUTH MAIN PLACE, a planned community. 1.5 Lot. That portion of the Project 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 an instrument making such Lot subject to this Declaration. 1.6 Commercial Unit. The commercial structure constructed on a Lot including physical appurtenance to such structure. 1.7 Common Area. Lot 21, as depicted on the Plat, which contains parking areas, walkways, and common open space. 1.8 Association. South Main Place Commercial Owners Association. 1.9 Board. The Board of Directors of the Association. South Main Place Commercial Owners Association CCRS Page 2

3 1.10 Articles; Bylaws. The Articles of Incorporation and Bylaws of the Association. The Bylaws are marked Exhibit "C", attached hereto, incorporated herein and made a part hereof Declaration. This Declaration, as from time to time amended or supplemented Mortgage. 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 Architectural Committee. The Architectural Committee as created pursuant to Section 6. ARTICLE 2 USE RESTRICTIONS The use of the Lots and the Common Area shall be restricted in accordance with the following provisions in addition to all other covenants, conditions and restrictions herein contained. 2.1 Use of Unit. The Lots and Commercial Units shall be used for commercial purposes only, consistent with city zoning, except as specifically provided for in this Declaration. 2.2 Occupants. Occupancy of each Commercial Unit shall be restricted to commercial enterprises duly authorized to do business in the State of Oregon and allowed by the applicable zoning regulations of the City of Pheonix, Oregon. 2.3 Maintenance/Insurance. Each Owner shall maintain and repair its Commercial Unit in a clean, sanitary and attractive condition. Each Owner shall maintain the exterior of its building and all sidewalks, decks and patios on the Owner s Lot. Such maintenance shall include the removal of debris and cutting of weeds and grass so as to keep the unimproved Lot in a clean, sanitary and attractive condition. In order to provide for repair or reconstruction following casualty damage, Owners shall carry such insurance coverage as is required by the Bylaws of the Association Phase 1 - Maintenance of Courtyard. The maintenance cost for the courtyard located between Building A and Building B shall be shared equally between the Owners of such Units Phase 4 Maintenance of Lot. The Owner of the Commercial Unit located in Phase 4 shall be solely responsible to maintain the landscaping, parking and maneuvering areas within Phase 4. South Main Place Commercial Owners Association CCRS Page 3

4 2.4 Residential Use Prohibited. Unless expressly approved by the Board of Directors of the Association, no person(s) may inhabit any Commercial Unit as a personal dwelling. 2.5 Animals. No animals shall be maintained on any Lot without the permission of the Board. 2.6 Utility Service. Unless approved by the Architectural Committee, no lines, wires, antennae or other devices of any kind for the communication or transmission of electric current or power, including telephone, television and radio signals, shall be constructed, placed or maintained anywhere in or upon any Lot unless the same shall be contained in conduits or cables constructed, placed and maintained underground or concealed in, under or on buildings or other approved structures. Nothing herein shall be deemed to forbid the erection and use of temporary power or telephone services incident to the construction of approved improvements. 2.7 Temporary Occupancy. No trailer, basement of any incomplete building, tent, shack, garage, and no temporary building or structure of any kind shall be used at any time for a commercial unit either temporary or permanent. Temporary buildings, trailers or structures may be used by Declarant during the sale and construction or improvement of Lots and the Common Area, but shall be removed within a reasonable time after the completion of construction within that portion of the Project. 2.8 Parking of Vehicles. No vehicle described below shall be parked or left on any portion of the Project. (a) (b) (c) Any farm vehicle or equipment; Any boat; Any trailer fitted or designated to be pulled by any other vehicle; (d) Any vehicle within the generally recognized category of recreational vehicle, including a camper or camper body which is or may be mounted upon a pick-up truck; (e) Any vehicle which is inoperable. No vehicle described above may be permanently or semi-permanently parked anywhere within the Project (including any street, driveway or yard area). Except for occasional, temporary periods of not more than ten (10) hours, any Owner who parks or permits the prohibited parking of any such vehicle on the Project shall be deemed to commit a nuisance and shall be subject to the penalties or sanctions adopted by the Board of Directors pursuant to the Bylaws. 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 Project for the purpose of accomplishing repairs thereto or the South Main Place Commercial Owners Association CCRS Page 4

5 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 and shall be subject to the penalties or sanctions adopted by the Board of Directors. 2.9 Trash Containers and Collection. All refuse shall be placed and kept in covered containers of a type and style which shall be approved by the Board. The Owner of the Commercial Unit in Phase 4 shall subscribe to regular refuse pick-up services on a weekly basis, or such other periodic basis as the Board may determine at said Owner s sole cost. The Association at its sole election shall have the right to subscribe for such services on behalf of all Lot Owners and determine the placement of all trash receptacles Basketball Standards. No basketball standards or fixed sports apparatus of any nature shall be attached to any Commercial Unit or garage or be erected on any Lot Antennae. No antenna for transmission or reception of television, radio, shortwave signals or any other form of electromagnetic radiation shall be erected, used or maintained outdoors, whether attached to a building or structure or otherwise, unless approved by the Architectural Committee. Satellite dishes or other antenna to receive video programming for transmission of television are permitted subject to the following: 1) The dish may not be installed on Association common area unless prior approval is obtained from the ACC. 2) The Owner can be required to temporarily relocate, at the Owner(s) expenses, a dish anytime the Association needs to maintain or repair a given area. In such event, the Association shall not be responsible for any damage to the satellite dish. 3) The Owner agrees the Association shall be relieved of all responsibility for the satellite dish. 4) The Owner agrees to indemnify and hold the Association harmless for any damage to any portion of a structure or property which the Association is responsible for maintaining resulting from the installation of said satellite dish. 5) Dishes must be less than one meter in diameter Mailboxes. There shall be no exterior newspaper tubes or freestanding mailboxes, except as may have been initially installed by or pursuant to plans previously approved by Declarant or thereafter approved by the Architectural Committee Access. Primary access to the Project is taken directly off Highway 99. Additional secondary access is available off Oak Street, within the PUD. Commercial truck traffic is restricted to the Highway 99 accesses. The Association shall maintain the South Main Place Commercial Owners Association CCRS Page 5

6 Highway 99 accesses at its sole cost. The Residential Association for the PUD shall maintain the access off Oak Street at its sole cost Diseases and Insects. No Owner shall permit any thing or condition to exist upon his Lot which shall induce, breed, or harbor infectious plant diseases or noxious insects Growing and Processing Of Marijuana Prohibited. The Association desires to ensure the peace and enjoyment of property owners within their Lots and to reduce nuisance created from odors as a result of growing, cultivating and/or processing marijuana, and to protect the safety, welfare and benefit of existing and future Owners of the Lots within the Property. To that end, all outdoor growth, cultivation and processing of marijuana is prohibited within the Property. In the event this provision is challenged in a court of law or other proceeding, the Board may, in its sole discretion, amend this Declaration without a vote of the members to delete this restriction, if it determines that it would be in the best interest of the Association to avoid the costs of such defense Restrictions on Further Subdivision. Except as otherwise provided herein, no Lot shall be further subdivided nor shall less than all of any such Lot be conveyed by an Owner thereof. No Owner, except Declarant, may grant an easement or other interest in a Lot without the prior written approval of the Board Signs. No signs whatsoever (including without limitation, commercial, political, family "crest" or name signs, and all such similar signs) which are visible from neighboring property shall be erected or maintained on any Lot except: (a) Such signs as may be required by legal proceedings; (b) Such commercial identification signs as are installed in the initial construction of the Commercial Units, subject to the review of the Architectural Committee and approval by the Board as to suitability; (c) Project signs and building directories installed by Declarants; (d) During the time of construction of any office or other improvement by Declarant, job and sales identification signs; and (e) Not more than one "for sale" sign having dimensions not to exceed eighteen (18) by twenty-four (24) inches, pursuant to the Rules of the Association, so long as the posts or standards for said signs do not damage or destroy lawns or plantings. (f) Additional signs as approved by the Architectural Committee Storage. There shall be no obstruction of the common areas. Nothing shall be stored in the common areas without the prior consent of the Board of Directors. South Main Place Commercial Owners Association CCRS Page 6

7 2.19 Insurance. Nothing shall be done or kept in any unit or in common areas which will increase the rate of insurance on the common areas without the prior consent of the Association. No Owner shall permit anything to be done or kept in his unity or in the common areas, or which will be in violation of any law Nuisances. No noxious or offensive activity shall be carried on in any unit or in the common areas, nor shall anything be done therein which may be or become any annoyance or nuisance to the other owners. All parts of the Lot will be kept in a clean and sanitary condition, and no rubbish, refuse or garbage allowed to accumulate, nor any fire hazard allowed to exist. No waste shall be committed in the common areas Construction. Nothing shall be altered or constructed in, or removed from, the common areas, except upon the written consent of the Association Improper, Offensive or Unlawful Use. No improper, offensive or unlawful use will be made of or on the Project nor any part of it; and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction will be observed. The responsibility of meeting the requirements of governmental bodies for maintenance, modification or repair of the planned community property will be carried out and paid for in the same manner as the responsibility for the maintenance and repair of the property concerned Landscape Maintenance. The Owner of Phase 4 shall maintain all landscaping within Phase 4 at said Owner s cost. The Association shall maintain all landscaping within Phase 1 and shall assess the Owners of Commercial Lots within Phase 1 in equal shares for such costs Skate Boarding. Skate boarding or the operation of any motorized transportation device, excepting motor vehicles (as defined by Oregon law) and golf carts, shall not be allowed within the Project Right of Inspection. Upon twenty-four (24) hours written notice (emergencies excepted) and during reasonable business 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 Commercial 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, 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 its Lot 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 South Main Place Commercial Owners Association CCRS Page 7

8 Association. Following the adoption or revision of such schedule and at least 30 days prior to the imposition any penalties pursuant to such schedule, the Board shall cause a copy of the schedule to be mailed to all Owners. The penalties may be imposed with or without further notice as provided in the schedule of penalties. Penalties imposed for such violations shall constitute a Reimbursement Assessment, as provided in Section 4.4. ARTICLE 3 ASSOCIATION 3.1 Organization. The Association is a nonprofit Oregon corporation charged with the duties and invested with the powers prescribed by law and set forth in the Articles, the 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 Project 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 Project 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. The Association shall have two classes of voting membership: South Main Place Commercial Owners Association CCRS Page 8

9 (1) Class A Members. Class A Members shall have one (1) vote for each 250 square feet of each building on each Lot owned by the Member. 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 shall be cast, or an entity that is an Owner is unable to cast a vote due to lack of majority within such entity, the Owner(s) 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 unless circumstances indicate otherwise. 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. (2) Class B Member. The Class B Member shall be the Declarant. The Class B Member shall be entitled to two (2) votes for each 250 square feet of each building on each Lot in which it holds an 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 Declarant or his heirs or assigns cease to own any Lot(s). Fractional votes shall not be allowed for square footage less than 250 square feet. (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) Declarants 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 Declarants. (d) Suspension of Voting Rights. The voting rights of an Owner shall be suspended during such period as any assessment due hereunder from such Owner remains 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 Declarants. Thereafter, the Board shall be elected as provided in the Bylaws. South Main Place Commercial Owners Association CCRS Page 9

10 3.6 Duties of the Association. The Association shall have the right, 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 Project. (a) Common Area and Lot Maintenance and Operation. To maintain and otherwise manage the Common area after such property is conveyed or otherwise transferred to it, all other improvements located thereon, landscaping on all Lots, 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. (b) Utilities. To acquire, provide and/or pay for water, sewer, garbage disposal, refuse pickup, electrical, telephone, gas and other necessary utility services for the Common Area. (c) Walkways, Mailboxes, Etc. The Association shall, after construction thereof by Declarants as a part of the initial development of the Project, maintain, repair, replace, reconstruct and relocate pathways, sidewalks, lighting, street signs, any mail and post boxes, as initially designated on the plans filed with the Association or as initially constructed by Declarants. Each Owner hereby grants to the Association, a non-exclusive easement of ingress and egress to that portion of its Lot as may be reasonably required by the Association to exercise or otherwise perform its rights under this Section 3.6(c). Each Owner hereby further grants to each other Owner a nonexclusive right of passage on and over such pathways or sidewalks that traverse over its Lot to an adjoining accessway, Lot or Lots and for the further purpose of access to and from any such mail or post boxes. (d) Parking Spaces. To assign or designate parking spaces in Phase 1 of the Common Area if deemed necessary at the sole discretion of the Association, for use by Owners, invitees and guests and to establish rules for the use of such parking spaces and for the enforcement of same. (e) Maintenance of Utility Easements. The Association shall have responsibility to maintain and make any repairs to any Utility (as defined in Section 3.7(c)) lines, laterals and other conduits for the provision of Utility services to the Project. The Association shall impose assessments upon the Lots pursuant to Section 4 of this Declaration for purposes of accomplishing such repair and maintenance duties. (f) Storm Water Detention. To repair, replace & maintain the storm water detention area which serves the Project and the PUD. The Association shall be responsible to assess Phase 1 of the Project and the South Main Place Homeowners Association, for their respective share of the maintenance costs as provided in that Maintenance Agreement recorded in the official records of Jackson County as Document No. (hereinafter the Easement Maintenance Agreement ). (g) Parking Lot and Access Maintenance. The Association shall maintain the parking area and drive aisles within Phase 1, and the ingress/egress South Main Place Commercial Owners Association CCRS Page 10

11 driveways located on Highway 99, and as further depicted on the plat, and shall assess the Owners of Commercial Units within the Project for such maintenance costs in equal shares, as further provided in that Easement Maintenance Agreement. (h) Garbage. The Association shall arrange for periodic refuse service for the Owners of the Commercial Units in Phase 1 and shall assess the Owners of Phase 1 in equal shares for the shared cost of such garbage service. (i) 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 a non-exclusive easement of ingress and egress to that portion of its Lot as may be reasonably required by the Association to exercise or otherwise perform its duties under this Section 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 may be 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, in accordance with the provisions of Sections 4 and 5. (b) Right of Entry 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 after 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 its Lot. South Main Place Commercial Owners Association CCRS Page 11

12 (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 as may be deemed necessary or appropriate in the future (collectively Utilities ). (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, as well as 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. ARTICLE 4 FUNDS AND ASSESSMENTS 4.1 Operating and Reserve Fund. 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 may be identified in South Main Place Commercial Owners Association CCRS Page 12

13 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 expenditures of the Association for its performance of its rights and duties under this Declaration shall be paid from the operating 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 may be determined by the Board and shall be shared equally by the Owners. 4.2 Regular Assessments. Within thirty (30) 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. The Regular Assessment shall include a provision designated for the reserve fund described in Section 4.1. 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 Declarants, 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 to the Owners, in proportion to the square footage of each Building. The amount per Building so assessed to each Owner is called "the Regular Assessment." Phase 4. Notwithstanding the foregoing, Phase 4 shall not be assessed a share of the cost for storm water detention, maintenance of the courtyard located in Phase 1; refuse service for Phase 1; or landscape maintenance for Phase Phase 1. Owners of Commercial Units in Phase 1 shall not be assessed any Lot maintenance, or refuse service for Phase Special or Emergency Assessments. In addition to the Regular Assessment applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction (including reconstruction costs in excess of insurance proceeds), repair or maintenance necessitated by the failure of the Owner or tenant to maintain its Commercial Unit or Lot, repair of any common watered areas, repair of any Utilities or Utility transmission lines, pipes, or laterals, unexpected repair or replacement of a capital improvement upon the Common Area, including the necessary fixtures and personal property related thereto, or any extraordinary expense not contemplated by this Declaration of whatsoever nature. 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 Declarants levy special or emergency South Main Place Commercial Owners Association CCRS Page 13

14 assessments to defray the costs of any action or undertaking on behalf of the Association which in the aggregate exceed ten percent (10%) of the budgeted gross expenses of the Association for that fiscal year. Except as otherwise provided herein, Special and Emergency Assessments shall be assessed to the Owners in proportion to the square footage of each Building 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 Special Assessment against a member is a remedy utilized by the Board to reimburse the Association for costs incurred in bringing the member and its Lot into compliance with the provisions of the Declarations or Bylaws. 4.4 Reimbursement Assessments. The Board may levy, during any fiscal year, Reimbursement 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 Commercial 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 Payment of Assessments. Each Owner shall be obligated to pay Regular Assessments made pursuant to this Section 4 to the Association in equal monthly installments on or before the first day of each month, in advance, or in such other manner as the Board shall designate. The Board may determine to require payment of Regular Assessments monthly, in advance. The Board shall provide each Owner with a statement of such assessment within ten (10) days prior to the beginning of each fiscal year, but shall not be obligated to provide quarterly statements to any Owner thereafter. Special or Emergency Assessments and Reimbursement 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 $50.00 shall be imposed for any payment on an assessment which is not paid within ten (10) days following the due date of the payment. Accrued interest and late fees shall be deemed part of the assessment. 4.6 Commencement of Assessments. The Regular Assessments shall commence as to each Lot upon the filing and approval of the final plat for the Project. The first Regular Assessment shall be adjusted according to the number of months remaining in the fiscal year and the initial payment due with respect to a partial month from an Owner, other than Declarants, shall be prorated as of the close of escrow for the purchase of such Owner's Lot. 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 its Lot have been paid. ARTICLE 5 ENFORCEMENT OF ASSESSMENTS South Main Place Commercial Owners Association CCRS Page 14

15 5.1 Covenant to Pay Assessments. Declarants covenants for each Lot owned, and each Owner, other than Declarants, by acceptance of a deed to a Lot, shall be deemed to covenant to pay assessments levied in accordance with Section 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 by law. 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 ARTICLE 6 ARCHITECTURAL CONTROL 6.1 Membership; Architectural Committee. There shall be an Architectural Committee comprised of at least one (1) Member. Declarants shall serve as the initial Member of the Architectural Committee unless and until the Declarants no longer own any Lot(s) within the Project or otherwise confer the right to appoint the Architectural Committee to the Board. Thereafter, the Board shall have the power to appoint the members of the Architectural Committee. Any Member appointed to the Architectural Committee by the Board need not be members of the Association. The Architectural Committee, with the approval of the Board, shall have the right to hire a licensed architect, a landscape architect, an engineer or such other professionals as may be required to advise the Architectural Committee in carrying out its duties pursuant to this Section 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. Notwithstanding the foregoing, during the period of Declarant control, any one (1) member of the initial ACC shall have the power to act on behalf of the ACC, without a public meeting. 6.3 Duties of Architectural Committee/Restriction on Alteration of Lots. It shall be the duty of the Architectural Committee to consider and act upon any and all proposals or plans submitted to it pursuant to the terms hereof, to insure that any painting or exterior coverings or improvements constructed, which shall also include landscaping and plantings, on the Project by anyone other than the Declarants conform to plans approved by the Architectural Committee. Except for the original construction of the South Main Place Commercial Owners Association CCRS Page 15

16 Project by Declarants and the existing Commercial Unit in Phase 4, 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, and hedges, landscaping features, aerials, antennas, radio or television broadcasting or receiving devices, slabs, sidewalks, curbs, gutters, patios, balconies, driveways, carports, 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, Commercial Unit, or upon any of the Common Areas within the project or to remove or alter any windows or exterior doors of any Commercial Unit or do anything which will materially increase the cost of operating or insuring the Association property or impair any easement, until the complete plans and specifications, showing the location, nature, shape, height, form of change (including, without limitation, any other information specified by the Board of Directors) shall have been submitted to and approved in writing as to safety, the effect of any such alterations on the cost of maintaining and insuring the Association property and harmony of design, color and location in relation to surrounding structures and topography, by the Architectural Committee. All plans approved by the Architectural Committee shall conform to the Design guidelines adopted by any Architectural Committee. 6.4 Application for Approval of Improvements. Any Owner, except the Declarants and their designated agents, proposing to perform any work of any kind whatever which requires the prior approval of the Architectural Committee pursuant to any provision in this Declaration, shall apply to such Architectural Committee for approval by notifying the Architectural Committee of the nature of the proposed work in writing and furnishing such information as the Architectural Committee may require. 6.5 Approval/Disapproval. All approvals given under this Section 6 shall be in writing. If a request for approval has not been granted within forty-five (45) days from the date of submission of all information requested by the Architectural Committee, the proposal shall be deemed approved. The Architectural Committee s decision shall be final. 6.6 Completion of Work. The Owner shall complete the construction, reconstruction, refinishing or alteration of any such improvement within six (6) months after commencing construction thereof, except and for so long as such completion is rendered impossible or would result in great hardship to the Owner due to strikes, fires, national emergencies, natural calamities or other supervening forces beyond the control of the Owner or his agents. If the Owner fails to comply with this Section 6.6, the Architectural Committee shall notify the Board of such failure, and the Board shall proceed in accordance with the provisions of Section 6.7 as though the failure to complete the improvement were a noncompliance with approved plans. 6.7 Inspection of Work. Inspection of work and correction of defects therein shall proceed as follows: South Main Place Commercial Owners Association CCRS Page 16

17 (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 Section 6, the Owner shall give written notice thereof to the Architectural Committee. (b) Within thirty (30) days thereafter the Architectural Committee, 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 and shall report its findings and recommendation to the Board. If the Board 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 of ten (10) days from the date of such notification, the Owner shall have failed to remedy such noncompliance, the Declarant or the Association, at its option, may either remove the non-complying improvement or remedy the noncompliance, and the Owner shall reimburse the Declarant or the Association for all expenses incurred in connection therewith upon demand. (d) If for any reason the Board fails to notify the Owner of any noncompliance within thirty (30) days after receipt of said notice of completion from the Owner, the improvement shall be deemed to be in accordance with said approved plans. 6.8 Liability. Neither the Architectural Committee, Declarant or Association, nor any member thereof or their delegates shall be liable to the Association or 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 Architectural Committee, or any member thereof, may, but is not required to, consult with or hear the views of the Association or any Owner with respect to any plans, drawings, specifications or any other proposal submitted to the Architectural Committee. Approval by the Architectural Committee does not mean said Architectural Committee is warranting or incurring any liability for the structural adequacy of the plans, drawings and specifications submitted to and approved by said Architectural Committee. Plans, specifications and drawings may require building permits and other entitlements from the appropriate governmental agencies. South Main Place Commercial Owners Association CCRS Page 17

18 ARTICLE 7 PROPERTY RIGHTS AND EASEMENTS 7.1 Conveyance of Common Area. The Declarants hereby covenant for themselves, their successors and assigns, that, following final plat approval of the Project by the City of Phoenix, they will convey fee simple title to the Common Area of the Project to the Association, subject to 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 of the Owners of Lots in the Project. 7.2 Easements in Common Area. There exists a blanket public utility easement on the Common Area. To the extent not already conferred in the public utility easement, Declarants grant and convey easements for all existing Utilities (as defined in Section 3.7(c) in place in the Common Area. Every Owner shall have a nonexclusive easement and a right 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, and a nonexclusive easement for ingress and egress over and through the Common Area. Such easements shall be subject to the right of the Association to sell, transfer, 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 may be 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 seventy-five percent (75%) of the voting power of the Association and seventy-five percent (75%) of the voting power in members other than the Declarants; provided, however, that a dedication required by a governmental agency as a condition to a recording a final plat covering any portion of the Project shall require no such prior vote or written consent. (a) Ingress Egress Access. Access to the PUD and the Project shall be subject to reciprocal cross access easements as depicted on the Plat. 7.3 Delegation. Any Owner may delegate its right of use and enjoyment to the Common Area to tenants who occupy its 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 delegates, and such member shall not thereafter be entitled to use and enjoy the Common Area so long as its right shall be so delegated. The rights and privileges of any delegate shall be in accordance with and subject to this Declaration; provided, however, that the Owner making such delegation (and its Lot) shall remain liable for the assessments herein provided for and subject to all of the terms and conditions of this Declaration. 7.4 Overhang Easement. Each Commercial Unit in the Project shall have an overhang easement over the Common Areas for the purpose of accommodating any present or future encroachment as a result of construction, reconstruction, repairs, South Main Place Commercial Owners Association CCRS Page 18