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MASTER DECLARATION OF PROTECTIVE COVENANTS,
CONDITIONS, AND RESTRICTIONS FOR
MILL POND VILLAGE
(A Planned Community)
THIS DECLARATION is made this day of , 1999, by Venerable Properties, Inc. ("Declarant").
Recitals:
A. Concurrent with the recordation of this Declaration, Declarant has recorded the plat of Mill Pond Village (the "Plat") in the plat records of Clatsop County, Oregon, in connection with the development of a community to be known as "Mill Pond Village."
B. Declarant desires to subject the property described on the Plat to the easements, covenants, conditions, restrictions and charges set forth in this Declaration for the benefit of such property and its present and subsequent Owners, and desires to submit such property to the provisions of ORS 94.550 to 94.783 (Oregon Planned Community Act, hereinafter the ãActä).
Declaration:
ARTICLE I
DEFINITIONS
As used in this Declaration the terms set forth below shall have the following meanings:
1.1 ãAssessment Unitsä means the number of units allocated to each Lot for (i) purposes of determining the liability of each Lot for common expenses and the distributable share of each Lot of common profits, and for (ii) purposes of determining the number of votes each Lot will have in the affairs of the Association.
1.2 "Association" means the nonprofit corporation to be formed to serve as the owners' association provided in Article VIII hereof, and its successors and assigns. Reference in this Declaration to the Association means the master association in the event any part of the Property includes a condominium development with a separate ownerâs association.
1.3 "Bylaws" means the Bylaws of the Association adopted pursuant to Section VIII as they may be amended from time to time.
1.4 "City" means the City of Astoria, Oregon.
1.5 "Committee" or "Mill Pond Village Architectural Committee" means the architectural review committee appointed pursuant to Article VII hereof.
1.6 "Common Property" means any real property or interest in real property within the planned community which is owned or leased by the Association or owned as tenants in common by the Lot Owners, or designated in the Declaration for transfer to the Association.
1.7 "Declarant" means Venerable Properties, Inc. and its successors and assigns if such successor or assign should acquire all of Declarant's rights under this Declaration pursuant to a recorded instrument executed by Declarant.
1.8 ãDeclarationä means this Master Declaration of Protective Covenants, Conditions, and Restrictions for Mill Pond Village.
1.9 "General Common Areas" means the areas in the Plat of Mill Pond Village designated as Common Property and used in common by all members of the Association.
1.10 "Improvement" means every structure or improvement of any kind, including but not limited to landscaping and any residence, fence, driveway, storage shelter or other product of construction efforts on or in respect to the Property (but does not include any television antenna or satellite dish).
1.11 "Living Unit" means a building or portion of a building, including (without limitation) a single family or multi-family residence, located upon a Lot and designated for primary residential occupancy. An apartment in an approved accessory building is not a Living Unit and may only be used for secondary residential occupancy.
1.12 "Lot" means a platted or partitioned lot within the Property, but does not include the Common Property or any other tracts not designated for residential and/or commercial use.
1.13 ãMaster Associationä means the Association provided for in this Declaration, which Association shall be defined as the master association in any governing documents of condominium developments within the Property.
1.14 "Mortgage" means a mortgage or trust deed; "mortgagee" means a mortgagee or a beneficiary of a trust deed; and "mortgagor" means a mortgagor or a grantor of a trust deed.
1.15 "Multi-family Structure" shall mean and refer to any building containing two or more Living Units on a single Lot and under one roof except when each unit is situated on its own individual Lot.
1.16 "Owner" means the person or persons, including Declarant, owning any Lot (including the holder of a vendee's interest under a land sale contract), but does not include a tenant or holder of a leasehold interest or a person holding only a security interest in a Lot (including the holder of a vendor's interest under a land sale contract). The rights, obligations and other entitlements granted to or imposed upon an Owner commence upon acquisition of the ownership of a Lot and terminate upon disposition of such ownership, but termination of ownership shall not discharge an Owner from obligations incurred prior to termination.
1.17 "Plat" has the meaning given in Recital A to this Declaration.
1.18 "Property" means the property legally described on the attached Exhibit A.
1.19 "This Declaration" means all of the easements, covenants, conditions, restrictions and charges set forth herein, as the same may be amended from time to time in accordance with the provisions hereof.
1.20 "Other Definitions." Capitalized terms which are not defined in this Section 1 but are defined elsewhere in this Declaration shall have the respective meanings given them in such provisions of this Declaration.
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ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
2.1 Initial Development. Declarant hereby declares that all of the real property described below is owned and shall be owned, conveyed, hypothecated, encumbered, used, occupied and improved subject to this Declaration:
All of that certain real property located in Clatsop County, Oregon, legally described on the attached Exhibit A.
The easements, covenants, conditions, restrictions and charges described in this Declaration shall run with such property and shall be binding upon all parties having or acquiring any right, title or interest in such property or any part thereof and shall inure to the benefit of each Owner thereof.
2.2 General Description of Development. It is anticipated by the Declarant that Mill Pond Village will be built out in approximately three (3) stages as a primarily residential development, with some allowance for commercial and mixed-use development, as follows:
(a) Stage 1 Plan of Development:
(i) Lots 1 through 16 shall be single family residential Lots with a maximum of 16 Living Units.
(ii) The Wauna Site shall be a commercial, multi-family residential, or mixed-use ground-story commercial and multi-story residential Lot, with the right to be subdivided into a maximum of two (2) Lots.
(iii) Tract A shall be dedicated to the City as park area, with maintenance responsibilities to remain an obligation of the Association.
(b) Stage 2 Plan of Development:
(i) Lots 17 through 44 shall be single family residential Lots with a maximum of 28 Living Units. It is anticipated that Lots 27 through 38 and their surrounding piers will be submitted to the provisions of the Oregon Condominium Act (ORS Chapter 100) and that a separate homeowners association will be formed for the purposes of administering the affairs of such condominium provided, however, that any such condominium and homeowner association shall be subject to the provisions of this Declaration and to the authority of the Master Association.
(ii) Lot 45 shall be a commercial, multi-family residential, or mixed-use commercial and multi-story residential Lot.
(iii) Clatsop Mill Pond is intended to become Common Property, with maintenance responsibities to be an obligation of the Association.
(c) Stage 3 Plan of Development:
(i) Lots 48 through 69 and 76 through 85 shall be single family residential Lots with a maximum of 32 Living Units.
(ii) Lots 70 through 75 shall be single family residential Lots with a maximum of 6 Living Units, with permissible commercial uses as provided in Section 5.3 (b) of this Declaration.
(iii) Lots 46 and 47 shall be commercial, multi-family residential, or mixed-use commercial and multi-story residential Lots.
(iv) A number of additional tracts shall be dedicated to the City for park area, with maintenance responsibilities to remain an obligation of the Association.
Declarant reserves the unconditional right to modify, in its sole discretion, the foregoing staged plan of development to accommodate development needs that may arise during the course of construction, including, but not limited to, modifying the order of annexed property into any stage of the plan of development. Declarant does not choose to limit Declarantâs rights to all Improvements not described in this Declaration.
2.3 Annexation by Declarant. For seven (7) years from the date of the recording of this Declaration, Declarant, its successors or assigns, shall have the right, without any requirement of Association approval, to bring within the scheme of this Declaration additional properties in future stages of development, provided that additions are in accord with the terms of this Declaration. Declarant shall not be limited on the number stages or number of lots or units, or common property, which Declarant may create or annex to the planned community, except that in no event shall the number of dwelling units exceed 350 units. This Declaration provides notice to any purchaser of any Lot within the Property of Declarant's right of annexation as stated in this Article II.
Improvements installed by Declarant in such annexed areas shall be consistent with the initial Improvements installed by Declarant in the initial development with respect to quality of construction.
2.4 Other Annexation. Notwithstanding the foregoing, additional lands may be annexed to the initial development pursuant to an affirmative vote of seventy-five percent (75%) of members voting or by proxy at a regular meeting of the Association or at a meeting duly called for this purpose.
2.5 Method of Annexation. The annexation of any such real property shall be accomplished as follows:
(a) The Owner or Owners of such real property shall record a supplemental declaration which shall be executed by or bear the approval of the owner of such property, and Declarant in the case of an annexation pursuant to Section 2.3, and the certificate of the chairperson and secretary of the Association if the annexation is pursuant to Section 2.4. The supplemental declaration shall, among other things, describe the real property to be annexed, establish any additional or different limitations, restrictions, covenants and conditions which are intended to be applicable to such property, and declare that such property is held and shall be held, conveyed, hypothecated, encumbered, used, occupied and improved subject to this Declaration. Unless approved pursuant to Section 12.2 hereof, such supplemental declaration shall not revoke, modify or add to the covenants established by this Declaration applicable to the Property described in Section 2.1 above.
(b) The property included by any such annexation shall thereby become a part of the Property, the supplemental declaration with respect thereto shall become part of this Declaration, and the Association shall have and shall accept and exercise administration of this Declaration with respect to such property. Upon recording of the supplemental declaration, voting rights in the Association shall accrue to Owners of annexed Lots and shall be allocated as stated in Section 8.5 herein. All lots annexed to the Mill Pond Village planned community pursuant to this Article II shall have the same allocation of undivided interest in the Common Property and shall be subject to the same formulas used for allocation of common expenses as provided in this Declaration.
(c) In the event annexation occurs during the course of the fiscal year, the Association assessments of the annexed Lots shall be prorated based on the number of months remaining in the fiscal year and on the number of assessment units following the annexation.
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ARTICLE III PROPERTY RIGHTS IN LOTS
3.1 Use and Occupancy. Except as otherwise expressly provided in this Declaration or in the Plat, the Owner of a Lot shall be entitled to the exclusive use and benefit of such Lot.
3.2 Restriction on Lot Division. All Lot Owners are prohibited from dividing any and all Lots subject to this Declaration, except as otherwise permitted on the Wauna Site and except that a Lot shall not be restricted from effecting a condominium or other statutory method of establishing multiple unit ownership on an individual Lot. Owners of any such newly created Lots or units shall be members of the Association and shall have all the rights and obligations of Association members as outlined in this Declaration. Any plat or declaration created for the purpose of effecting a condominium or other statutory method of establishing multiple unit ownership on an individual Lot must be consistent with this Declaration, the Association Bylaws and any rules or regulations adopted by the Association Board of Directors.
3.3 Recorded Documents.
(a) Prospective Purchaser Agreement. The Property is subject to a document entitled "Prospective Purchaser Agreement" recorded in the deed records of Clatsop County on February 12, 1999, DEQ No. 98-01 (Book 1000, Page 7). All Owners and occupants of property encumbered by this Declaration or any supplements recorded pursuant to Section 2.5 shall be bound by the terms and conditions of said document, which includes, but is not limited to, the following property use restrictions to protect the public and wildlife from contaminants existing on the property:
(1) Prohibited use of groundwater for any purpose, other than groundwater monitoring.
(2) Prohibited recreational use of the Clatsop Mill Pond, including swimming, boating and fishing.
(3) Nondisturbance of the capped areas and the contaminated soils/sediments unless prior written approval obtained from the Oregon Department of Environmental Quality.
Declarant retains the right to any and all rebates to which the Owners of the Property may be or become entitled relating to initial funding by Declarant for implementation of the Prospective Purchaser Agreement.
3.4 Easements Reserved. In addition to any easements shown on the Plat, Declarant hereby reserves the following easements for the benefit of Declarant, the Association, the Committee, and the Owners:
(a) Right of Entry. Declarant, the Association, and the Committee, and their respective representatives may at any reasonable time enter upon any Lot for the purpose of determining whether or not the use of and/or Improvements on such Lot are then in compliance with this Declaration. No such entry shall be deemed to constitute a trespass or conversion or otherwise create any right of action in the Owner of such Lot.
(b) Utility Easements. Declarant, the Association, or any public authority or utility provider shall have an easement on the Property for the installation, maintenance and development of utilities and drainage facilities. The easement area of each Lot and all Improvements therein shall be maintained continuously by the Owner of the Lot, except for those Improvements for which a public authority or utility provider is responsible.
( c ) Maintenance Easement. Due to minimal setbacks separating adjacent improvements as well as limited access due to the Clatsop Mill Pond, Owners shall have a general easement to access adjacent private property and Common Property within the Mill Pond Village for the purposes of maintenance, repair and improvement of the Ownerâs Lot, provided such access is reasonable in timing and scope so as to cause minimal disturbance to adjacent property. All reasonable efforts must be extended to minimize such disturbances and the Owner utilizing such easement shall be responsible for any resulting damage to adjacent property.
( d ) Overhang Easement. Each Owner shall have the easement right to construct roof overhangs up to a maximum of 18ä beyond the Ownerâs property line, at the height of the roof of either the first story or higher, within the setback of the contiguous Lot or Common Property. However, such easement shall not allow Owner to direct stormwater runoff off of Ownerâs roof onto the contiguous Lot.
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ARTICLE IV PROPERTY AND USE RIGHTS IN COMMON PROPERTY
4.1 Title to Common Property. Title to the Common Property shall be conveyed to the Association by Declarant, free and clear of liens and encumbrances, and subject to the Declaration and other restrictions of record, when determined by Declarant, but in any event not later than the date of the Turnover Meeting provided for in Section 8.7 herein.
4.2 Alienation of the Common Property. The Association shall not by act or omission seek to abandon, partition, subdivide, sell or transfer the Common Property owned directly or indirectly by the Association unless at least seventy-five (75) percent of Association members have given their prior written approval. The Association shall treat proceeds of any sale under this Section as an asset of the Association. This provision shall not apply to the easements described in Article III, nor to mortgages or other liens as provided in this Section 4.2. The Board of Directors shall have authority to approve the use of the Common Property as a security interest for loans or advances.
4.3 Extent of Owners' Rights. The rights of enjoyment in the Common Property shall be subject to the following and all other provisions of this Declaration:
(a) Rights of the Association. The Association shall have the right to enter upon the Common Property for construction, maintenance, repair, and use of the Common Property and any facilities thereon or therein.
(b) Rights of Declarant. So long as Declarant owns any Lot, Declarant reserves the right to enter upon and go under and across the Common Property in order to carry out development, construction, sales and rental activities necessary or convenient for the development of the Property or the sale or rental of Lots and for such other purposes as may be necessary or convenient for discharging Declarant's obligations or for exercising any of Declarant's rights hereunder.
(c) Utilities and Municipal Easements. Declarant and the Association may grant easements to utility providers or municipalities installing utility services within the Common Property and may grant free access thereon to police, fire and other public officials.
(d) Parking Prohibited Streets Sections. Certain areas within the planned community shall be designated as parking prohibited streets sections. Such areas shall be identified by signage or other means, such as painted curbs.
4.4 Condemnation. The Association Board of Directors shall have the sole authority to negotiate with any public or private body or person having the power of eminent domain; and to sue or defend in any litigation, involving such bodies or persons with respect to the Common Property.
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ARTICLE V USE, ARCHITECTURAL AND LANDSCAPING RESTRICTIONS
5.1 Association Authority to Enforce Use Restrictions. Notwithstanding the specific restrictions contained in this Article V, the Association Board of Directors shall have the authority to implement and enforce additional rules and regulations consistent with this Declaration and the Bylaws pursuant to Section 8.8 and the method of adoption of such rules and regulations as provided in the Association Bylaws.
5.2 Structures Permitted. Except to the extent expressly provided in this Declaration, no Improvements shall be erected or permitted to remain on any residential Lot except Improvements containing Living Units and Improvements normally accessory thereto, and only one Living Unit shall be permitted on any residential Lot other than on Lots effecting a condominium or other statutory method of establishing multiple unit ownership on an individual Lot. No television antenna or satellite dish shall be permitted on the roof of any Living Unit or within any Lot, except that a satellite dish shall be permitted if entirely out of public view and the prior approval of installation of the satellite dish is obtained from the Committee. No outdoor, overhead wire or service drop for the distribution of electricity or for telecommunication purposes, nor any pole, tower, or any other supporting structure, shall be erected or maintained on a Lot.
5.3 Residential and Commercial Uses.
(a) Residential Uses. Except as provided in Section 5.3 (b), residential lots shall be used only for residential purposes in accordance with, and subject to, the other provisions of this Declaration, and the Association Bylaws and rules and regulations. Except with the consent of the Committee, and as allowed by applicable City ordinances, agreements, or land use approvals, no trade, craft, business, profession, commercial or similar activity of any kind shall be conducted on any residential Lot (including, without limitation, operation of a daycare facility), nor shall any goods, equipment, vehicles, materials or supplies used in connection with any trade, service or business be kept or stored on any residential Lot. Nothing in this Section 5.3(a) shall be deemed to prohibit (a) activities relating to the rental or sale of Living Units, (b) the right of Declarant or any contractor or homebuilder to construct Living Units on any residential Lot and to store construction materials and equipment on such Lots in the normal course of construction in accordance with the other provisions of this Declaration, and (c) the right of an Owner to maintain his professional personal library, keep his personal business or professional records or accounts, handle his personal business or professional telephone calls or confer with business or professional associates, clients or customers, in his Living Unit.
(b) Commercial Uses. Lots 70 through 75 shall be used for residential purposes in accordance with the Section 5.3(a), except that such Lots may contain commercial uses, limited to neighborhood retail establishments, professional offices, arts and crafts studios and galleries, in a maximum area of 500 square feet per Lot. Only Lots 45, 46 and 47 and the Wauna Site may be used solely for commercial purposes.
5.4 Offensive or Unlawful Activities. No noxious or offensive activities shall be carried on upon any Lot, nor shall anything be done or placed on any Lot which interferes with or jeopardizes the enjoyment of other Lots, or which is a source of annoyance to residents of the Property. Without limitation of the foregoing, no noxious or offensive odors, sounds or noises shall be permitted to emanate from a Lot to other Lots. No unlawful use shall be made of a Lot or any part thereof, and all laws, zoning ordinances, and regulations of all governmental bodies having jurisdiction over the Property shall be observed.

5.5 Maintenance of Improvements. Each Owner shall maintain the Improvements located on that Owner's Lot in a clean and attractive condition, in good repair and in such fashion as not to create a fire hazard. Such maintenance shall include, without limitation, painting, repair, replacement and care for roofs, gutters, downspouts, exterior building surfaces, driveways, walks and other exterior improvements (including landscaping of yards, but excluding planting strips within the public right-of-way that will be maintained by the Association ) and glass surfaces. Damage caused by fire, flood, storm, earthquake, riot, vandalism, or other causes shall likewise be the responsibility of each Owner and shall be restored within a reasonable period of time. Each Owner shall likewise be responsible to repair damage from, and to maintain his Lot free of excessive accumulations of debris, water, ice, snow and the like.
5.6 Construction of Improvements. Beginning of construction of a Living Unit or any other permitted building on each Lot shall begin not later than twenty-four (24) months after conveyance of such Lot to the Owner. The construction of a Living Unit or any other permitted building, including painting and all exterior finish, shall be completed within twelve (12) months from the beginning of construction so as to present a finished appearance when viewed from any angle. In the event of undue hardship due to weather conditions, these periods may be extended for a reasonable length of time upon written approval from the Committee. The building areas shall be kept reasonably clean and in workmanlike order during the construction period. All construction activities shall conform with construction rules that may be adopted from time to time by the Committee. Failure to begin construction and/or to complete construction of Improvements within the time periods set forth in this section may subject the Lot Owner (the ãDefaulting Lot Ownerä) to a fine of up to $100 per month for each month that the Defaulting Lot Owner continues to fail to begin and/or to complete construction; provided, however, that the monthly fine applicable to Lots 45, 46 and 47 may be up to $500 per month. After a period of twenty-four (24) months of such continuing failure, the Declarant (until the Turnover Meeting) or the Association (after the Turnover Meeting) shall be entitled to take possession of such Lot, complete construction of a Living Unit or any other permitted building on the Lot, and assess the Owner for the entire cost of the work done.
5.7 Temporary Structures. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding (with the exception of a second-story apartment in a permitted accessory building) shall be used on any Lot at any time as a residence, either temporarily or permanently. Builders may place or erect temporary or portable sheds as toolhouses or in connection with construction of structures on a Lot, so long as such sheds are maintained in a good condition and removed no later than the date of completion of construction on such Lot.
5.8 Setback, Maximum Height, Minimum Yard, and Architectural Requirements. Each Lot shall be subject to the setback, maximum height, minimum yard and architectural requirements set forth in the Architectural Guidelines and in conformance with City requirements.
5.9 Fences. Fence material and design, as well as the location of fences, shall be in compliance with the Architectural Guidelines and City requirements.
5.10 Landscaping. Each Owner, at his or her expense, shall complete landscaping in conformance with the rules and regulations adopted by the Association, including but not limited to, Green Development Guidelines.
5.11 Signs. No commercial signs of any kind shall be displayed to public view on any Lot unless in connection with a permitted commercial use and in compliance with the Architectural Guidelines.
5.12 Leasing and Rental Activities. Leasing or rental of entire Living Units or less than entire Living Units shall be subject to rules and regulations adopted by the Association. All leases or rentals on any Lot shall be by written lease agreement, which shall provide that the terms of the lease shall be subject in all respects to the provisions of this Declaration, the Association Articles of Incorporation and Association Bylaws, and that any failure by the lessee or tenant to comply with the terms of such documents shall be a default under the lease. If the Board of Directors finds that a lessee or tenant has violated any provision of such documents or the rules and regulations, the Board may require the Owner to terminate such lease or rental agreement.
5.13 Miscellaneous. Miscellaneous provisions include:
(a) Street and alley stormwater runoff are directed into the Clatsop Mill Pond and therefore Owners shall not introduce pollutants into the streets and alleys as such pollutants will be transferred into the Clatsop Mill Pond and thereby the Columbia River. Activities to be avoided in the streets and alleys are vehicle tune-ups, vehicle washing (except with biodegradable detergents) leakage of vehicle fluids and any other activities having a similar effect.
(b) Improvements constructed upon structural piling shall install piling causing minimal disruption to adjacent properties. It is strongly suggested that steel pipe be installed using vibratory installation methods or other piles or methods be used that can be demonstrated to cause minimal disruption to adjacent properties. Under no circumstance may untreated wood pilings be used.
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ARTICLE VI ARCHITECTURAL GUIDELINES
The Mill Pond Village Architectural Committee may from time to time publish Architectural Guidelines or a similar document ("Architectural Guidelines"). Any such Architectural Guidelines are intended to augment and not replace the provisions of this Declaration, and to provide a synopsis, including, but not limited to, the requirements for square footage, building materials and exterior design. Any such Architectural Guidelines are subject to periodic review and revisions by the Committee in its sole discretion. Revisions, if any, of the Architectural Guidelines need not be recorded but shall be promptly provided without charge to any Owner requesting a copy. It is the responsibility of the Owner to ascertain that he or she has the most current copy of the Architectural Guidelines. The Architectural Guidelines, including any revisions, are subject to Article VII of this Declaration. Any apparent conflicts between the Architectural Guidelines and other provisions of this Declaration shall be interpreted and resolved by the Committee.
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ARTICLE VII MILL POND VILLAGE ARCHITECTURAL COMMITTEE
7.1 Architectural Committee. No Improvement shall be commenced, erected, placed, altered or maintained on any Lot until the design plans and specifications (including, without limitation, site plans, building plans (including elevations), grading plans, landscape plans, lighting plans, and color and/or material samples) showing the nature, shape, heights, materials, colors and proposed location of the Improvement have been submitted by the Lot Owner (also referred to as "Applicant") to and approved in writing by the Mill Pond Village Architectural Committee. It is the intent and purpose of this Declaration to achieve a high standard of quality of workmanship and materials and to assure harmony of external design with existing Improvements and location with respect to topography and finished grade elevations. In carrying out its delegated duties, the Committee will determine the Applicantâs conformance with the applicable rules and regulations, including but not limited to Architectural Guidelines or Green Development Guidelines.
7.2 Procedure. In all cases which require Committee approval or consent pursuant to this Declaration, the provisions of this Article VII shall apply. The procedure and specific requirements for Committee approval or consent may be set forth in the rules and regulations, including but not limited to Green Development Guidelines or Architectural Guidelines, adopted and/or amended from time to time by the Committee. The Committee may charge a reasonable fee to cover the cost of processing an application for its approval. The Committee may hire outside consultants as it deems necessary to assist with or otherwise delegate its duties described in this Article VII. Any and all costs associated with hiring outside consultants shall be charged to the Applicant.
7.3 Committee Decision. The Committee shall render its decision on an application for approval of the design of an Improvement or any other proposal submitted to it for approval or consent within thirty (30) calendar days after it has received a complete written application therefor. A complete application shall specify the approval or consent requested and be accompanied by all material reasonably required or desired by the Committee to make an informed decision on such application. If the Committee fails to render approval or disapproval of such application within thirty (30) calendar days after the Committee has received a complete application, or if no suit to enforce the terms of this Declaration has been commenced within one year after completion of construction of the Improvement, approval will not be required and the related provisions of this Declaration shall be deemed to have been fully complied with. The plans delivered to the Committee pursuant to this Article VII shall remain with the Committee at least until the date that is sixty (60) days following the date on which a certificate of completion for a Living Unit or other Improvement is received by the Committee or Declarant.
7.4 Committee Discretion. The Committee may, in its sole discretion, withhold consent to any proposed Improvement if the Committee finds the proposed Improvement will be inappropriate for the particular Lot or incompatible with the design standards that the Committee intends for Mill Pond Village. Consideration of siting, shape, size, color, design, height, solar access, impairment of the view from other Lots within Mill Pond Village, effect on the enjoyment of other Lots or the Common Property, disturbance of existing terrain and vegetation and any other factors which the Committee reasonably believes to be relevant, may be taken into account by the Committee in determining whether or not to approve or condition its approval of any proposed Improvement.
7.5 Membership; Appointment and Removal. The Committee shall consist of as many persons, but not less than three (3), as Declarant may from time to time appoint. Declarant may remove any member of the Committee from service any time and may appoint new or additional members at any time. The Association shall keep on file at its principal office a list of the names and addresses of the members of the Committee. Declarant shall delegate to the Board of Directors of the Association the right to appoint and remove members of the Committee on or prior to the date that Declarant turns over control to the Association. If Declarant fails to delegate to the Board of Directors the right to appoint and remove members of the Committee by the control turnover date, the Board of Directors shall assume responsibility for appointment and removal of members of the Committee on the control turnover date. If the Board of Directors has assumed the responsibility for appointment of the members of the Committee and fails to make such appointments, the Board of Directors shall serve as the Committee.
7.6 Majority Action. Except as otherwise provided herein, a majority of the members of the Committee shall have the power to act on behalf of the Committee, without the necessity of a meeting but after consulting or notifying the remaining members of the Committee. The Committee may render its decision only by written instrument setting forth the action taken by the members consenting thereto.
7.7 Liability. The scope of the Committee's review is not intended to include any review or analysis of structural, geophysical, engineering or other similar considerations. Neither the Committee nor any member thereof shall be liable to any Owner, occupant, builder, or developer for any damage, loss or prejudice suffered or claimed on account of any action or failure to act of the Committee or a member thereof, provided only that the member has, in accordance with the actual knowledge possessed by the Committee or by such member, acted in good faith.
7.8 Nonwaiver; Other Requirements. Consent by the Committee to any matter proposed to it or within its jurisdiction (a) shall never under any circumstance be deemed to constitute a precedent or waiver impairing its right to withhold approval as to any similar matter thereafter proposed or submitted to it for consent and (b) shall not be construed as an assertion or guaranty of compliance with governmental or other applicable requirements, which requirements must be satisfied by the Owner regardless of Committee approval.
7.9 Effective Period of Consent. The Committee's consent to any proposed Improvement shall automatically be revoked one (1) year after issuance unless construction of the work has been commenced or the Owner has applied for and received an extension of time from the Committee.
7.10 Construction by Declarant. Improvements constructed by Declarant on any property owned by Declarant are not subject to the requirements of this Article VII.
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ARTICLE VIII ASSOCIATION
Declarant shall organize an Association of all the Owners within Mill Pond Village. Such Association and its successors and assigns shall be organized under the name "Mill Pond Village Owners Association, Inc." or such other similar name as Declarant shall designate, and shall have such property, rights, powers and obligations as are set forth in this Declaration for the benefit of the Property and all Owners of property located therein.
8.1 Association Organization, Adoption of Bylaws. Declarant shall, not later than the date on which the first Lot is conveyed, organize the Association as a nonprofit corporation under the general nonprofit corporation laws of the State of Oregon, and shall adopt Bylaws for the Association. The Articles of Incorporation of the Association shall provide for its perpetual existence, but in the event the Association is at any time dissolved, whether inadvertently or deliberately, it shall automatically be succeeded by an unincorporated association of the same name. All of the property, powers and obligations of the incorporated Association existing immediately prior to its dissolution shall thereupon automatically vest in the successor unincorporated association. Such vesting shall thereafter be confirmed as evidenced by appropriate conveyances and assignments by the incorporated Association. To the greatest extent possible, any successor unincorporated association shall be governed by the Articles of Incorporation and Association Bylaws (as the same may be amended from time to time) as if they had been drafted to constitute the governing documents of the unincorporated association. The Association shall be governed by its Board of Directors as set forth in this Declaration and in the Articles of Incorporation and the Bylaws.
8.2 Powers, Duties and Obligations. The Association shall have, exercise and perform all of the following powers, duties and obligations:
(a) The powers, duties and obligations granted to the Association by this Declaration and the Bylaws.
(b) The powers and obligations of a nonprofit corporation pursuant to the general nonprofit corporation laws of the State of Oregon.
(c) Any additional or different powers, duties and obligations necessary or desirable for the purpose of carrying out the functions of the Association pursuant to this Declaration or otherwise promoting the general benefit of the Owners within the Property.
8.3 Membership. Every Owner of one or more Lots within the Property shall, immediately upon creation of the Association and thereafter during the entire period of such Owner's ownership of one or more Lots within the Property, be a member of the Association. Such membership shall commence, exist and continue simply by virtue of such ownership, shall expire automatically upon termination of such ownership, and need not be confirmed or evidenced by any certificate or acceptance of membership. When more than one person holds an interest in any Lot, all such persons shall be members.
8.4 Transfer of Membership. The Association membership of each Lot Owner (including Declarant) shall be appurtenant to the Lot giving rise to such membership, and shall not be assigned, transferred, pledged, hypothecated, conveyed or alienated in any way except upon the transfer of title to said Lot and then only to the transferee of title to such Lot. Any attempt to make a prohibited transfer shall be void. Any transfer of title to a Lot shall operate automatically to transfer the membership in the Association appurtenant thereto to the new Owner thereof.
8.5 Declarant Control; Voting after Turnover Meeting. Pursuant to ORS 94.600, Declarant hereby reserves control of the Association until Lots representing 75% of the votes of the Association have been conveyed, after which time control shall be turned over to the Association at the Turnover Meeting held pursuant to Section 8.7 herein and as outlines in the Bylaws. When control is turned over to the Association, each Lot shall be allocated the same number of votes in the affairs of the Association as such Lotâs allocated Assessment Units. If an Owner owns more than one Lot, he shall have as many votes as the total Assessment Units allocated to the Lots owned. The Declarant shall be entitled to vote as the Owner of any then existing Lots retained by Declarant, and the Association Board of Directors shall be entitled to vote on behalf of any Lot which has been acquired by or on behalf of the Association; provided, however, that the Association Board of Directors shall not be entitled to vote such Lots in any election of directors.
8.6 Liability. Neither the Association, any officer or member of its Board of Directors nor any member of the Mill Pond Village Architectural Committee shall be liable to any Owner for any damage, loss, prejudice suffered or claimed on account of any action or failure to act by the Association, any of its officers or any member of its Board of Directors or Committee, provided only that the officer or Board member or Committee member has acted in good faith in accordance with the actual knowledge possessed by him.
8.7 Advisory Committee; Turnover Meeting. As provided under ORS 94.604, Declarant shall form a transitional advisory committee to provide for the transition from administrative responsibility by Declarant under ORS 94.600 to administrative responsibility by te Association by calling a meeting of Owners for the purpose of selecting a transitional advisory committee not later than the 60th day after the later of:
(a) The date the Declarant conveys fifty percent (50%) or more of the Lots in the first or only phase of the planned community to Owners other than a successor Declarant; or
(b) The date Declarant has conveyed 10 lots in the planned community to Owners other than a successor Declarant.
The transitional advisory committee shall consist of three (3) or more members, with the Owners (other than Declarant) to select two (2) or more of the members and Declarant to select no more than one (1) member. The requirement for a transitional advisory committee shall not apply once the turnover meeting called under ORS 94.600 has been held.
No later than ninety (90) days after expiration of the period of Declarant control of the Association reserved by Declarant under ORS 94.6000 (the ãLatest Turnover Dateä), Declarant shall call a meeting by giving notice to each Owner as provided in the Association Bylaws for the purpose of turning over administrative responsibility for the Property to the Association (the ãTurnover Meetingä). Declarant may elect to turn over administrative responsibility of the Property to the Association at any time prior to the Latest Turnover Date by delivering to the Association Board of Directors written notice of such intent. If Declarant does not call the meeting required by this Section within the required period, any Owner may call such a meeting and give notice as required by this Section. At the Turnover Meeting the Association board of directors shall be elected by the Owners and Declarant as provided in this Declaration and in the Administrative bylaws. At the Turnover Meeting, Declarant shall also deliver to the Association those items in Declarant's possession relating to ownership of the Common Property or administration of the Association, as detailed in the Association Bylaws. Turnover shall take place at the Turnover Meeting notwithstanding the presence or absence of a quorum of Lot Owners. If Declarant has complied with this sec-tion, unless Declarant otherwise has sufficient voting rights as a Lot Owner to control the Association, Declarant shall be relieved of any further responsibility for the administra-tion of the Association except as Owner of any unsold Lots.
8.8 Association Rules and Regulations. The Association from time to time may adopt, modify, or revoke such rules and regulations governing the conduct of persons and the operation and use of Lots and the Common Property as it may deem necessary or appropriate in order to assure the peaceful and orderly use and enjoyment of the Property. A copy of the rules and regulations, upon adoption, and a copy of each amendment, modification or revocation thereof, shall be delivered by the Association Board of Directors promptly to each Owner and shall be binding upon all Owners and occupants of all Lots upon the date of delivery. The method of adoption of such rules shall be as provided in the Association Bylaws.
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ARTICLE IX CONSTRUCTION, MAINTENANCE, UTILITIES AND SERVICES
9.1 Construction and Maintenance of Common Property. The Declarant shall initially construct or cause to be constructed all Improvements of the Common Property. After the Turnover Meeting, the Association is authorized to and shall thereafter perform all construction within and maintenance upon the Common Property and upkeep of landscaping and other Improvements within such areas, including but not limited to grass, trees, pavement, walkways, trails, fences, artwork, piers, boardwalk, weir, pond, lighting and signs, playground equipment, and sports facilities, and shall perform such construction, maintenance, and upkeep unless the same is assumed by a public body or other third party. Declarant shall have the right to add Improvements not described in the Declaration.
9.2 Maintenance of Utilities. Each Owner shall be responsible for maintaining utility lines within his Lot, except for those lines for which a public authority or utility provider is responsible.
9.3 Maintenance of Park Areas and Planting Strips. The Association shall be responsible for maintaining the park areas dedicated to the City and the planting strips within the public right-of-way. Owners of Lots shall make no changes or replacements of landscaping on planting strips within the public right-of-way without prior approval of the Mill Pond Village Architectural Committee.
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ARTICLE X ASSESSMENTS
10.1 Assessment of Lot Owners. All Lot Owners, other than Declarant, shall be obliged to pay common expenses assessed to them by the Association Board of Directors on behalf of the Association pursuant to this Declaration and the Association Bylaws. Prior to the date of the Turnover Meeting, Declarant shall be obliged to pay assessments on a Lot owned by Declarant only in the event Declarant has made Improvements on such Lot and has obtained an occupancy permit or equivalent for that Lot. Following the Turnover Meeting, however, Declarant shall be assessed as the Lot Owner of any unsold Lot, but such assessment shall be pro-rated to the date of sale of the Lot. Upon the conveyance of a Lot, each new Owner shall make an initial contribution to the working capital of the Association equal to one (1) year of the Association's assess-ments, which initial contribution shall not be in addition to and not credited against regular annual assessments. Assessments may not be waived due to limited or nonuse of Common Property. The Association Board of Directors, on behalf of the Association, shall assess the common expenses against the Owners, from time to time and at least annually, as set by the Association Board of Directors for the Lots as provided in this Declaration. The Association shall take prompt action to collect from a Lot Owner any common expense due which remains unpaid by him for more than thirty (30) days from the due date for its payment. During the period of Declarant control under ORS 94.600. Declarant reserves the right to approve any special assessment for capital improvements or additions.
10.2 Annual Budgets. The Association Board of Directors shall from time to time, and at least annually, prepare an operating budget for the Association, taking into account the current costs of maintenance and service and future needs of the Association, any previous overassessment and any common profits of the Association. The budget shall provide for such reserve or contingency funds as the Association Board of Directors deems necessary or as may be required by this Declaration or by law. The Association Board of Directors shall also from time to time, and at least annually, prepare a budget with respect to the maintenance, repair, and replacement requirements for Common Property. The method of adoption of such budgets shall be as provided in the Bylaws.
10.3 Determination of Common Expenses. Common expenses shall include:
(a) Expenses of administration;
(b) Expenses of utilities to and maintenance, repair, or replacement of Common Property;
(c) Cost of insurance or bonds obtained in accordance with the Association Bylaws;
(d) A general operating reserve;
(e) Reserve for replacements and deferred mainten-ance as set forth in Section 10.6;
(f) Any deficit in common expenses applicable to the Association for any prior period;
(h) Any other items properly chargeable as an expense of the Association.
10.4 Association Assessment Unit Formula. Each Lot within the Property shall be allocated one (1) Assessment Unit for every five thousand square feet (5,000 sq. ft.), or portion thereof, of real property square footage contained within such Lot. For example, a 2,000 sq. ft. Lot and a 5,000 sq. ft. Lot will each be allocated one (1) Assessment Unit, but a 5,300 sq. ft. Lot and a 10,000 sq. ft. Lot will each be allocated two (2) Assessment Units, and so on. The amount assessed to each Lot for common expenses shall be determined by multiplying the number of Assessment Units allocated to such Lot by a fraction, the numerator of which is the amount of the annual budget or other aggregate assessment and the denominator of which is the total number of Assessment Units allocated to all Lots. The common profits of the Association shall be allocated on the same basis applied to common expense assessments in this Section 10.4. Notwithstanding the other provisions of this Section 10.4, the Association may assess a Lot for the full amount of any common expense which is incurred by the Association and is attributable to the negligence or misconduct of the Owner of such Lot, any resident thereof, or the family members or invitees of any such Owner or resident.
10.5 Common Property Reserve Assessments Account. Declarant shall establish a reserve account and portion of the common expense collected from each Lot Owner shall be placed in an account separate from the general operating account of the Association. The separate account is to be used only as a reserve account for major maintenance and replacement of the Common Property and park improvements, all or part of which would normally require replacement, in whole or in part, in more than three (3) or less than thirty (30) years , for exterior painting if the Common Property includes exterior painted surface, and for such other items as may be required by this Declaration or the Bylaws. The assessment under this Section begin accruing from the date the first Lot assessed is conveyed. Declarant may defer payment of the accrued assessment for a Lot under this Section until the date the Lot is conveyed. The books and records of the Association shall reflect the amount owing from Declarant for all reserve assessments.
The amounts assessed shall take into account the estimated remaining life of the items for which the reserve is created and the current replacement cost of those items. The Association is responsible for administering the account and for making periodic payments into it as needed. The Association shall adjust the amount of the payments at least annually to reflect changes in current replacement costs over time, The board of directors of the association shall conduct a reserve study, or review and update an existing study, of the Common Property components to determine the reserve account requirements. The reserve study shall include those matters required under ORS 94.595(4)(a)-(d),
Following the second year after the Turnover Meeting, future assessments for the reserve account may be reduced, eliminated, or increased by an affirmative vote of not less than seventy-five percent (75%) of the Lot Owners of the Property.
Notwithstanding the provisions of Section 10.1, the reserve portion of the Association budget shall be assessed to Declarant for all unsold Lots from the time of the conveyance of the first Lot to an Owner other than the Declarant. The Declarant, however, may elect to defer payment of the accrued reserve portion of the common assessment until conveyance to a purchaser.
The reserve account shall be used only for the purposes outlined in this section; provided, however, that after the Turnover Meeting the Association Board of Direc-tors may borrow funds from the reserve account to meet high seasonal demands on the regular operating funds or to meet other temporary expenses which will later be paid from special assess-ments or maintenance fees. The reserve account may be invested by the Board of Directors subject to normal prudent investment stan-dards.
Assessments paid into the reserve account shall be the property of the Association and are not refundable to an Owner who sells or otherwise conveys a Lot. Sellers of Lots may treat their outstanding share of the reserve account as a separate item in any agreement for the sale of their Lots.
10.6 Maintenance and Operations Fund. The Association shall establish separate general funds to be known as "Maintenance and Operations Funds" into which all funds not otherwise allocated to a separate account in this Declaration or by action of the directors of the Association shall be deposited. The Association shall use the Maintenance and Operations Fund exclusively for the purpose of promoting the recreation, health, safety and welfare of the residents within the Property, and the Improvement and maintenance of properties, services and facilities devoted to this purpose and related to the use and enjoyment of the Common Property and of the Lots situated upon the Property, including but not limited to:
(a) Maintenance, Utilities and Services. Payment of the cost of maintenance, utilities and services as described in Article IX, including the costs of the operation of the Association.
(b) Insurance. Payment of the cost of insurance as described in the Association Bylaws.
(c) Taxes. Payment of any taxes assessed against the Common Property and any Improvements thereon.
(d) Other Services. Payment of the cost of other services which the Association deems to be of general benefit to the Owners, including but not limited to accounting, legal and secretarial services.
10.7 Payment of Assessments. The Association shall, not less than annually, provide written notice to each Lot Owner of the amount of the assessment of such Lot calculated in accordance with Sections 10.4 of this Declaration. Assessments shall be due and payable on or before a date set forth in the notice which shall be not less than thirty (30) days after the date the notice is mailed or at such other time or times as the Association may specify in the notice in accordance with this Declaration or the Bylaws. The Association Board of Directors shall promptly provide any Lot Owner who makes a request in writing with a written statement of his unpaid common expenses.
10.8 Creation of Lien and Personal Obligation of Assessments. Each Owner of any Lot by acceptance of a conveyance thereof, whether or not so expressed in any such conveyance, shall be deemed to covenant to pay to the Association all assessments or other charges as may be fixed, established and collected from time to time in the manner provided in this Declaration or the Association Bylaws. Such assessments, charges, and other costs together with any interest, expense or attorneys' fees imposed pursuant to Article XI shall be a charge on the land and shall be a continuing lien upon the Lot against which each such assessment or charge is made. Such assessments, charges and other costs shall also be the personal obligation of the person who was the Owner of such Lot at the time when the assessment or charge became due and payable. Such liens and personal obligations shall be enforced in the manner set forth in Article XI.
10.9 Foreclosure of Liens for Unpaid Common Expenses. In any suit brought by the Association to foreclose a lien on a Lot because of unpaid assessments, the Owner shall be required to pay a reasonable rental for the use of the Lot during the pendency of the suit; and the plaintiff in such foreclosure suit shall be entitled to the appointment of a receiver to collect such rental. The Association Board of Directors, acting on behalf of the Association, shall have the power to purchase such Lot at the foreclosure sale and to acquire, hold, lease, mortgage, vote the votes appurtenant to, convey, or otherwise deal with the Lot. Arbitration, a suit, or any other action to recover a money judgment for unpaid common expenses shall be main-tainable without foreclosing the liens securing the same.
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ARTICLE XI ENFORCEMENT
11.1 Violations by Owners. In the event any Owner shall violate any provision of this Declaration, the Association Bylaws, or any rules or regulations adopted by the Association governing the use of Lots and Common Property, then the Association, acting through its Board of Directors, may notify the Owner in writing that the violations exist and that such Owner is responsible for them, and may, after affording the Owner reasonable notice and opportunity to be heard, do any or all of the following: (a) suspend the Owner's voting rights and right to use the Common Property for the period that the violations remain unabated, or for any period not to exceed sixty (60) days for any infraction of its rules and regulations, (b) impose reasonable fines upon the Owner, in the manner and amount the Board deems appropriate in relation to the violation, which fines shall be paid into the Maintenance and Operations Fund, or (c) utilize any enforcement remedy provided in this Declaration. Nothing in this Section, however, shall give the Association the right to deprive any Owner of access to and from such Owner's Lot(s).
11.2 Mediation and Arbitration. Any dispute among Owners concerning the provisions of this Declaration, the Bylaws, or any rule or regulation adopted by the Board of Directors of the Association shall be referred to the Board of Directors for resolution. The Board of Directors, in its sole discretion, shall have the option to hear the dispute or to decline to hear the dispute and require the disputing Owners to seek resolution through binding arbitration as provided herein. The Board's decision not to hear a dispute shall be effective either upon written notice to the Owners involved or if no such notice is given by the Board, at thirty (30) days after the dispute has been reported to the Board. If the Board chooses to hear the dispute, any decision by the Board shall be binding upon the parties.
Any dispute between any Owner(s) and the Association concerning this Declaration, the Bylaws, or any rule or regulation adopted by the Board of Directors of the Association shall first be subject to mediation at the election of either party to the dispute, and in such a situation mediation shall be a mandatory prerequisite to arbitration.
Unsuccessful mediation of disputes between any Owner(s) and the Association, and all disputes between Owners which the Board declines to hear, shall be settled by mandatory arbitration before a single arbitrator, using the rules of commercial arbitration of the American Arbitration Association. Arbitration shall occur in Clatsop County, Oregon. The parties shall be entitled to conduct discovery in accordance with the Federal Rules of Civil Procedure, subject to limitation by the arbitrator to secure just and efficient resolution of the dispute. If the amount in controversy exceeds $2,500.00, the arbitrator's decision shall include a statement specifying in reasonable detail the basis for and computation of the amount of the monetary award, if any. A party substantially prevailing in the arbitration shall also be entitled to recover such amount for its costs and attorney fees incurred in connection with the arbitration as shall be determined by the arbitrator. Judgment upon the arbitration award may be entered in any court having jurisdiction and there shall be no opportunity for appeal in any court except as provided in ORS 36.355 to 36.365. Nothing herein, however, shall prevent an Owner, the Association, or other interested party from resort to a court of competent jurisdiction in those instances where injunctive relief may be appropriate.
11.3 Nonqualifying Improvements and Violation of General Protective Covenants. In the event any Owner constructs or permits to be constructed on such Owner's Lot an Improvement contrary to the provisions of this Declaration, the Bylaws, or rules, regulations, or guidelines adopted by the Association or the Mill Pond Village Architectural Committee or causes or permits any Improvement, activity, condition or nuisance contrary to the provisions of this Declaration, the Bylaws, or rules, regulations, or guidelines adopted by the Association or the Committee to remain uncorrected or unabated on such Owner's Lot, then the Association, acting through its Board of Directors or through the Committee, may notify the Owner in writing of any such specific violations and may require the Owner to remedy or abate the same in order to bring the Owner's Lot, the Improvement thereon and the Owner's use thereof into conformance with this Declaration, the Bylaws, and such rules, regulations, and guidelines. If the Owner is unable or unwilling to comply with the Association's specific directives for remedy or abatement, or the Owner and the Association cannot agree on a mutually acceptable solution within the framework and intent of this Declaration, after the Owner has been afforded notice and opportunity to be heard, within sixty (60) days after such notice, the Association, acting through its Board of Directors or the Committee, shall have, in addition to any other rights or remedies provided in the Declaration, at law or in equity, the right to do any or all of the following:
(a) Fines. Impose reasonable fines against such Owner in the manner and amount deemed appropriate in relation to the violation.
(b) Remove Cause of Violation. Enter the offending Lot (which entry shall not subject the Association, the directors of the Association or any agent or representative thereof to liability for trespass, conversion or any other claim for damages) and remove the cause of such violation, or alter, repair or change the item which is in violation of the Declaration, Bylaws, or rules, regulations, or guidelines in such a manner as to make it conform thereto. In any such case the Association may assess such Owner for the entire cost of the work done, which amount shall be payable to the Maintenance and Operations Fund, provided that any alteration or demolition of any item of construction shall be subject to the provisions of Section 11.2 of this Declaration; and/or
(c) Arbitration or Suit for Injunction. Utilize binding arbitration pursuant to Section 11.2 or resort to a court of competent jurisdiction in those instances where injunctive relief may be appropriate.
11.4 Default in Payment of Assessments; Enforcement of Lien. If an assessment or other charge levied under this Declaration is not paid within thirty (30) days after its due date, such assessment or charge shall become delinquent and shall bear interest from the due date until paid at the rate set forth below and, in addition, the Association may exercise any or all of the following remedies:
(a) Suspension of Rights; Acceleration. The Association may suspend such Owner's voting rights and right to use the Common Property until such amounts, plus other charges under this Declaration or the Bylaws, are paid in full and may declare all remaining periodic installments of any annual assessment or any other amounts owed by such Owner to the Association immediately due and payable. In no event, however, shall the Association deprive any Owner of access to and from such Owner's Lot.
(b) Lien. The Association shall have a lien against each Lot for any assessment levied against such Lot and any fines or other charges imposed under this Declaration or the Bylaws against the Owner of the Lot from the date on which the assessment, fine or charge is due. The provisions regarding the attachment, notice recordation and duration of liens established on real property under ORS 87.352 to 87.382 shall apply to the Association's lien. The lien shall be foreclosed in accordance with the provisions regarding the foreclosure of liens under ORS Chapter 88. The Association, through its duly authorized agents, may bid on the Lot at such foreclosure sale, and may acquire and hold, lease, mortgage and convey the Lot. If any assessment is payable in installments, the full amount of the assessment is a lien from the date the first installment of the assessment becomes due.
(c) Suit or Action. The Association may bring an action to recover a money judgment for unpaid assessments, fines and charges under this Declaration or the Bylaws without foreclosing or waiving the lien described in paragraph (b) above. Recovery on any such action, however, shall operate to satisfy the lien, or the portion thereof, for which recovery is made.
(d) Other Remedies. The Association shall have any other remedy available to it by law or in equity.
11.5 Notification of First Mortgagee. The Board of Directors shall notify any first mortgagee of any individual Lot of any default in performance of the terms of this Declaration by the Lot Owner which is not cured within sixty (60) days.
11.6 Subordination of Lien to Mortgages. The lien for the assessments or charges provided for in this Declaration shall be subordinate to tax and assessment liens and to the lien of any mortgage or deed of trust on such Lot which was made in good faith and for value and which was recorded prior to the recordation of the notice of the lien. Sale or transfer of any Lot shall not affect the assessment lien.
Subject to the foregoing, where the purchaser or mortgagee of a Lot obtains title to the Lot as result of foreclosure of a first mortgage or by deed in lieu of foreclosure, such purchaser or mortgagee, his successors and assign shall not be liable for any of the common expenses chargeable to the Lot which became due prior to the acquisition of title by such mortgagee or purchaser. The unpaid expenses shall become a common expense of all Lot Owners, including such mortgagee or purchaser. Any such sale or transfer, however, shall not release the Lot for liability for any assessments or charges thereafter becoming due or from the lien of such subsequent assessments or charges.
11.7 Interest, Expenses and Attorneys' Fees. In the event of default by any Owner in paying to the Association any amount assessed pursuant to this Declaration or the Bylaws, such Owner shall be liable for a late payment charge the rate of twelve percent (12%) per annum from the due date thereof, or at such other rate as may be established by the Board of Directors, but not to exceed the lawful rate of interest under the laws of the State of Oregon. In addition, the defaulting Owner shall pay all expenses incurred by the Association in collecting any unpaid assessments or in defending the validity of a collected assessment, including attorney fees (whether or not arbitration or suit is instituted, and at trial or any appeal therefrom) and all other costs chargeable to an Owner pursuant to this Declaration or the Association Bylaws. All such expenses shall be an additional assessment on that Owner's Lot.
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ARTICLE XII MISCELLANEOUS PROVISIONS
12.1 Invalidity; Number; Captions. The invalidity of any part of this Declaration shall not impair or affect in any manner the validity, enforceability, or effect of the balance of this Declaration. As used herein, the singular shall include the plural and the plural the singular. The masculine and neuter shall each include the masculine, feminine, and neuter, as the context requires. All captions used herein are intended solely for convenience of reference and shall in no way limit any of the provisions of this Declaration.
12.2 Amendment Provisions.
(a) This Declaration, or any provision hereof, as from time to time in effect with respect to all or any part of the Property, may be amended or repealed (a) only with the consent of Declarant until the date of the Turnover Meeting or (b) by vote or written consent of not less than seventy-five percent (75%) of the Owners. In no event shall an amendment under this section create, limit or diminish any special Declarantâs rights, increase the number of Lots or units, or change the boundaries of any Lot or any uses to which any Lot or unit is restricted unless the Owners of the affected Lots unanimously consent to the amendment.
(b) Any such amendment or repeal shall become effective only upon recordation in the deed records of Clatsop County, Oregon, of a certificate of Declarant prior to the Turnover Meeting, and thereafter the president or secretary of the Association, setting forth in full the amendment, amendments or repeal so approved and certifying that said amendment, amendments or repeal have been approved in the manner required by this Declaration or as otherwise provided under the Act.
12.3 Regulatory Amendments. Notwithstanding the provisions of Section 12.2, until the conveyance of the last Lot owned by Declarant to a third party, Declarant shall have the right to amend this Declaration in order to comply with the requirements relating to the development of single-family and multi-family structures or commercial structures of any applicable statute, ordinance, regulation or guideline of the Federal Housing Administration, the Veterans Administration, the Farmers Home Administration of the United States, the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Home Loan Mortgage Corporation, any department, bureau, board, commission or agency of the United States, the State of Oregon or the City of Astoria, or any corporation wholly owned, directly or indirectly, by the United States, the State of Oregon or the City of Astoria which insures, guarantees or provides financing for a single-family or multi-family residential and/or commercial development or lots in a single-family or multi-family residential and/or commercial development.
12.4 Duration. This Declaration perpetually shall run with the land and shall be and remain in full force and effect at all times with respect to all property included within the Property and the Owners thereof. This Declaration may be terminated upon approval by the vote or written consent of not less than one hundred percent (100%) of all Owners, with the additional requirement of Declarant consent until the end of the sixth month following the conveyance of the last Lot owned by Declarant to a third party other than a builder. Any such termination shall become effective only if a certificate of the president or secretary of the Association, certifying that termination as of a specified termination date has been approved in the manner required herein, is duly acknowledged and recorded in the deed records of Clatsop County, Oregon.
12.5 Joint Owners. In any case in which two or more persons share the ownership of any Lot, regardless of the form of ownership, the responsibility of such persons to comply with this Declaration shall be a joint and several responsibility and the act or consent of any one or more of such persons shall constitute the act or consent of the entire ownership interest; provided, however, that in the event such persons disagree among themselves as to the manner in which any vote or right of consent held by them shall be exercised with respect to a pending matter, any such person may deliver written notice of such disagreement to the Board of Directors, and the vote or right of consent held by them shall be exercised with respect to a pending matter, any such person may deliver written notice of such disagreement to the Board of Directors, and the vote or right of consent involved shall then be disregarded completely in determining the proportion of votes or consents given with respect to such matter.
12.6 Lessees and Other Invitees. Lessees, invitees, contractors, family members and other persons entering the Property under rights derived from an Owner shall comply with all of the provisions of this Declaration restricting or regulating the Owner's use, improvement or enjoyment of such Owner's Lot and other areas within the Property. The Owner shall be responsible for obtaining such compliance and shall be liable for any failure of compliance by such persons in the same manner and to the same extent as if the failure had been committed by the Owner.
12.7 Nonwaiver. Failure by Declarant, the Association, the Committee, or any Owner to enforce any covenant or restriction contained in this Declaration shall in no event be deemed a waiver of the right to do so thereafter.
12.8 Notice of Sale, Mortgage, Rental, or Lease. Immediately upon the sale, mortgage, rental, or lease of any Lot, the Owner shall promptly inform the appropriate secretary or manager of the name and address of said vendee, mortgagee, lessee, or tenant.
12.9 Notices and Other Documents. All notices and other communications under this Declaration shall be in writing and shall be deemed to have been given on the date of delivery when delivered by personal service, or three business days after delivery to the United States mails, certified or registered mail, return receipt requested, addressed to the party to which such notice is directed at its address determined as provided in this Section 12.9
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My Commission Expires: 12.9.1 Addresses. All notices and other communications under this Declaration shall be given to the parties hereto at the following addresses:
(a) If to an Owner, then to the last address for such Owner shown in the Association's records.
b) If to Declarant, then to:
Venerable Properties, Inc.
c/o Art DeMuro
322 NW Fifth Ave., Suite 301
Portland, OR 97209
12.9.2 Change of Address. Any party hereto may change the address to which notices shall be directed by giving ten (10) days' written notice of such change delivered as provided herein.
IN WITNESS WHEREOF, Declarant has executed this Declaration this day of , 1999
VENERABLE PROPERTIES, INC By: Arthur DeMuro, President

STATE OF OREGON )) ss: County of )
The foregoing instrument was acknowledged before me on this day of , 1999, by Arthur DeMuro, who is President of Venerable Properties, Inc.

Notary Public for Oregon: My Commission Expires:

Voluntary Dedication of Wauna Site:
The undersigned, as owner of that certain real property parcel referred to on the Plat and herein as the ãWauna Siteä and legally described as set forth in the attached Exhibit B, hereby voluntary subjects the Wauna Site to the easements, covenants, conditions, restrictions, and charges set forth in this Declaration for the benefit of such property and its present and subsequent owners; provided, however, that the undersigned does not retain any of the rights of the Declarant or assume any of the liabilities of the Declarant pursuant to this Declaration.
WAUNA FEDERAL CREDIT UNION
By:Eileen Cheuvront, Chief Executive Officer STATE OF OREGON )) ss: County of
The foregoing instrument was acknowledged before me on this day of , 1999, by Eileen Cheuvront, who is Chief Executive Officer of Wauna Federal Credit Union.
Notary Public for Oregon