OF COVENANTS, CONDITIONS AND RESTRICTIONS
FIRST AUGUST FINANCIAL CO.
All Property Owners of
Now known as
(Reflecting all amendments through July, 2001 - 24 pages)
E C I T A L S:
1. Otter Village Phase I
and II, now known as Sea Crest pursuant to replat and Otter Woods are planned
unit developments or subdivisions in Lincoln County, Oregon pursuant to plats
and replats recorded therein, and Declarant is the successor in interest to
Otter Rock Development Co., Inc. and Far West Federal Bank, S.B.
The balance of the undersigned are all of the remaining property owners
of Otter Village Phase I and II now known as Sea Crest owning the property
shown opposite their signature on the last page
2. Declarant, with the express consent of the other property owners, has filed a Replat of Otter Village Phase I and II, which Replat has modified or changed certain of the common area, including certain of infrastructure contained therein.
3. Contemporaneously with the filing of said replat, Declarant and the undersigned do hereby make this Declaration. This Declaration is intended by Declarant and the undersigned to supercede, modify and amend all previous Declarations of Covenants, Conditions and Restrictions of Otter Rock Development Co. dated May 18, 1981, filed in Book 124, Pages 248-281, and Declaration of Covenants, Conditions and Restrictions dated June 5, 1985, filed in Book 125, Pages 433-452, Deed Records, Lincoln County, Oregon.
4. This Declaration further supersedes and renders null and void and of no further effect the Bylaws of Otter Village Association as the same were recorded in Book 124, Pages 282-297 and the Bylaws of Otter Recreation Association, Inc. as the same were recorded in Book 125, Pages 453-467, Deed Records, Lincoln County, Oregon.
TO THE PUBLIC:
KNOW ALL MEN BY THESE PRESENTS, as used herein, the term “Declarant” shall mean and refer to First August Financial Co. or its successors in interest as developer of the Properties. Properties shall mean all property located in Otter Village Phase I and II, now known as Sea Crest, a subdivision, and Otter Woods, a subdivision, Replats of which are recorded in Lincoln County, Oregon, and all other plats contiguous thereto or joined thereto by successive contiguous plats, which in the future may be recorded by Declarant, and all lots or parcels of real property, whether or not platted, contiguous to the heretofore recorded plats, or replats, and to which these Covenants, Conditions and Restrictions are made applicable by declaration or deed reference of Declarant respecting any such plat or any such other lot or parcel; which plats, lots and parcels individually and collectively are referred to herein as the “Properties.” Further as used herein, the term “residential unit” shall mean and refer to any residential lot, whether or not the lot is improved. Each and all of these Covenants, Conditions and Restrictions shall run with any land to which they are applicable and shall inure to the benefit of, be imposed upon, and pass to the successor in interest of each and all of said residential units as a servitude in favor of and enforceable by Declarant and the owner or owners of any other of such residential units.
1.0 COVENANTS, CONDITIONS AND RESTRICTIONS
1.1 OBJECTIVES. Declarant, by the Replat of Otter Village Phase I and II, now known as
Crest, intends to create a residential development in Lincoln County, Oregon of
high standard and quality for residential purposes only.
Declarant further hopes to create Otter Woods, an adjacent subdivision
owned by Declarant, and may develop adjacent real property as additional
residential developments. As to all
of these developments, whether currently platted or to be platted and developed
at a later time, Declarant believes that property owners in these properties
will benefit from sharing the costs of common recreation and service facilities
and intends to construct thereon certain recreational facilities for the use and
benefit of all of the property owners in the properties.
By requiring proper maintenance and management of improvements and grounds within the common area, Declarant hopes to enable the property owners to continue to use and enjoy the common areas. Funds for the maintenance and management of the common area will be provided through assessments against the property owners in the residential developments.
1.2 LAND USE. The general plan for location of lots and areas for public or common use shall be as specified in the recorded replat for Sea Crest, and any future plat to which this Declaration is made applicable. Only residential structures, and amenities related thereto, shall be constructed or maintained in areas designated “for residential purposes only:” provided, exceptions or variances may be granted by the granting authority as provided in Section 1.13. Regulations, restrictions and conditions legally imposed by relevant government authorities and applicable to any property subject hereto shall at all times be observed. The development plan contemplates that the landscaping and exterior vistas will be generally a common and unified concept flowing across the entirety of the subdivision with minimal identification of the boundaries of individual ownerships. There shall be no access ways created from the Properties to the beach.
1.3 ARCHITECTURAL COMMITTEE. For the purposes of further assuring the development and continued existence of the Properties as an area of high standards, the Declarant reserves as herein provided the power to control the buildings, structures and other improvements and landscaping placed, erected or maintained in the Properties, as well as to make such variances and exceptions to these Conditions, Restrictions and Regulations as the Declarant or the Board of Directors shall deem necessary or proper as provided in Section 1.13. As part of that purpose, Declarant or the Board of Directors shall establish an Architectural Committee which shall exist with jurisdiction and authority as provided in this Section 1.3.
1.3.1 So long as Declarant owns any property in the Properties, Declarant may alter the jurisdiction of the Committee and establish such additional committees as Declarant in its sole discretion deems advisable. The Architectural Committee shall consist of three (3) or more members, at least half of whom must be owners of one or more residential lots in the Properties and the majority of whom cannot concurrently be serving as members of the Sea Crest Board of Directors. At all times until the Declarant shall no longer own any property in the Properties, the Declarant shall have full authority to designate and appoint each of the members of the Committee and the members, respective, shall serve at the pleasure of the Declarant. When the Declarant shall no longer own any property in the Properties, or at an earlier time upon waiver by Declarant of its authority to designate and appoint, the jurisdiction of each committee and each member of each Committee shall be designated and appointed by the Board of Directors of the Sea Crest Association and shall serve at the pleasure of the Board.
1.3.2 Subject to the rights of the granting authority as provided in Section 1.13, the Committee shall have the full and complete power to control every matter which affects the exterior and exterior appearance of any property in the Properties, any structure on any residential unit and the plantings, walls, fences and structures or improvements of any other kind which may or might tend to alter in any way the nature or appearance of any residential unit site within its jurisdiction. No change or alteration of any structure or site within the jurisdiction of the Committee shall be made by any person without first having secured the written consent of the Committee.
1.4 NEW CONSTRUCTION. Before any improvement may be constructed on the Properties or any unit therein, the owner must apply for and obtain the written approval of the Architectural Committee. The Architectural Committee may require that the owner pay a fee, in an amount determined by the Board, at the time of submission of the application to defray the cost of processing the application. Current fee amounts will be noted in Bylaws.
Persons designing structural plans for the Properties should be aware that water, in the form of creeks, springs, and heavy winter rains, may present both opportunities and challenges during construction. Any substantial excavation involves the risk of unearthing springs, the runoff from which will have to be controlled. The Committee will support owners in the creative use and/or control of water on their lots.
1.4.1 The application must be submitted with:
a. A complete site plan showing lot dimensions, easements, major trees, significant topographical features, and accurate contour map, all proposed improvements, including driveways and walks and their location on the site, all improvements of adjoining properties and their locations, floor line elevations proposed and any existing grade modifications.
b. A preliminary floor plan and all exterior elevations showing sufficient detail to establish character of building, including siding material, roof material, window type and configuration, rafter material, facial material and size, exposed masonry or chimney material, deck material, fence or screening material and all colors (in sample form). All plans for new residential construction should show a minimum of 1500 square feet of enclosed living space and an attached garage for at least two cars. These drawings must be submitted at a scale of not less than 1/8"- 1'.
c. Two complete sets of plans and specifications, one of which shall remain with the Committee;
d. A perspective drawing if the Committee deems it necessary to allow adequate review of the exterior design.
The final contracts, drawings and specifications submitted to the Architectural Committee after preliminaries are approved, must match the preliminary drawings in all respects as to the exterior appearance. Once approval is obtained, no changes affecting matters covered in the these C.C.& R.s can be made without the written approval of the Architectural Committee.
In the event the Committee fails to approve or disapprove the application within thirty (30) days of receipt by the Committee of all data required by it to be submitted for approval, including the perspective drawing set forth in 1.4.1.e., the Committee’s approval can be presumed to have been given provided, however, that all other restrictions and conditions set forth herein shall remain in full force and effect.
e. Once the preparation of the lot has begun, the construction project must be completed within a time period of two (2) years. The Committee shall be empowered to extend this time frame for one six-month period at their discretion. Completion shall be deemed accomplished when an approved final inspection is logged by the county. Any structures remaining unfinished after Committee permission has expired must be torn down at the property owners expense, leaving the property in as near to natural condition as possible.
f. The owner of each improved residential unit shall, at the owner’s expense, provide a mail box and paper box with house number and shall provide and maintain a lamp post and lamp, together with a light-sensitive or timed device that activates the lamp at dusk and deactivates it at dawn, at such locations on the unit as the Architectural Committee shall designate. The mail box, paper box, house number, lamp post and lamp shall be of a uniform design selected by the Committee. The owner of improved residential units shall, at his sole expense, maintain the lamp in an operable condition and keep the lamp lit from dusk of each day to dawn of the next day. Specific plans for compliance with this provision must be a part of building application.
g. All exterior light fixtures at entry doors, decks, driveways or other locations on the property shall have their light source shielded from horizontal view.
1.4.2 The following criteria shall serve as general guidelines for the Committee in approving or disapproving the application. Notwithstanding these criteria, however, variances or exceptions thereto may be granted on such terms and conditions as the granting authority in its sole discretion may deem appropriate, as provided in Section 1.13.
a. Building height limitations will be twenty-five feet (25') and shall be measured according to Lincoln County residential building height determination guidelines.
Views afforded by these height restrictions and by the abundant common areas of the Properties shall be protected by the Committee. However, nothing in that statement shall be interpreted to cause the enforcement of view easements by one or more owners over the property of another. No such view easements exist in the Properties and none shall be presumed without the full written and recorded consent of the property owner giving that right. Heights in excess of 25' can be allowed by the Committee, at their sole discretion, where such excess will not block the ocean view, from any voting lot, as afforded by the common areas.
b. Building setbacks shall generally be as follows: Front yard - 20', side yard - 10', rear yards - 20', side yards abutting paved streets - 15', however, such setback requirements may be modified or waived by the Committee where property abuts common areas in recognition of situations where such common areas may be said to act as ample set-back. Each proposal will be reviewed on the basis of its effect on other improvements in the development, both existing and anticipated.
The following stakes shall be placed at the building site in preparation for construction, and maintained until their removal is approved in writing by the Architectural committee, to facilitate monitoring of the requirements of paragraphs 1.4.2. a & b: survey stakes at lot corners; a 3' stake at each exterior corner of the proposed foundation; and a pole set to show the highest approved point of the proposed structure.
c. All exterior chimneys should be of wood, brick, stone, or metal; a metal chimney must be of such a color as to blend in aesthetically with the residence and will be subject to approval by the Architectural Committee;
d. Indigenous natural wood species or brick or stone masonry should be used for all exterior walls. All exterior wood sidings should be treated with preservatives of semi-transparent or solid body stains of natural earth tones. Solid body stains must be used for trim. Exterior colors must harmonize with the surrounding landscape and all colors are subject to approval by the Architectural Committee. Wood siding types automatically approved (preferably rough sawn or resawn textures) are as follows:
1 x 4 T&G cedar - applied vertically
1 x 6 T&G cedar - applied vertically
1 x 4, 6, 8 cedar - beveled siding, horizontally
1 x 4, 6 cedar - channel siding - vertically
Shingles, cedar - 8" to weather
Shakes, cedar - 8-10" to weather
Plywood with battens, rough sawn cedar or fir battens 8" - 12" on center
e. All reflective metal such as chimney stacks, flashings, exhaust vents and pipes must be coated to match or blend with surrounding materials. Aluminum windows, door frames, and skylights must be color anodized in earth tones. Steel window and door frames must be painted to match or blend with surrounding materials;
f. Wood, tile or masonry shingles shall be used as roof material, provided that the color of all tile and masonry shingles must be approved by the Architectural Committee;
With regard to paragraphs c. through f. here, the Architectural Committee shall have full latitude in approving or disapproving the use of new construction materials which shall become available from time to time, so long as the quality is acceptable and the appearance of said new materials is harmonious with others in the Properties.
g. No property line fencing shall be allowed, however, privacy and wind screening within the normal yard setbacks may be approved where adjacent properties are not adversely affected. All exterior garbage and waste storage must be screened from public view.
1.5 ALTERATION, ADDITIONS. No exterior alteration or addition, however slight, shall be made to any residential unit or premises without propr written consent of the committee; provided, that exceptions may be granted by the granting authority as provided in Section 1.13. Without limitation on the generality of the foregoing, the term “exterior alteration” includes a change in color of paint on the exterior of any structure.
1.6 TEMPORARY STRUCTURES. No structure of temporary character shall be erected or maintained on any lot or building at any time, nor shall any such structure or basement, garage or trailer be used at any time for living quarters; provided, however, that a temporary structure may be maintained during such period and to such extent as may be reasonably necessary to construct on the lot an improvement approved by the Architectural Committee.
1.7 TRUCKS, RECREATIONAL VEHICLES, ETC. No unlicensed or inoperable truck, pick-up truck, automobile or other motor vehicle shall be parked outside of a garage in the Properties overnight. No licensed, operable vehicle shall be parked on the streets overnight. No commercial vehicle, camper, trailer, boat or recreational vehicle shall be parked on any lot or on any street except within an enclosed garage structure at a residential premises, except that the Board may set aside and designate an area or areas on the Properties for such storage and parking. Nothing in this section is intended to nor does it exclude guest parking on a temporary basis only. In this case, “temporary” shall mean a time frame of two weeks or less per year, per vehicle unless prior, written consent for a longer time frame is obtained from the Board. If any truck, automobile, camper, trailer, boat, recreational vehicle or other vehicle is stored or parked in any area on the Properties or elsewhere designated for that purpose by the Architectural Committee or Declarant, such storage or parking shall be solely at the risk of the owner and neither the Declarant or any other person, firm or corporation shall have any responsibility therefore, whether or not any fee or charge is made or paid for the privilege of such storage of parking.
1.8 ANIMALS. Other than household pets, no animals or fowl shall be kept or allowed to be kept on any lot or residential unit. Household pets may not be kept, bred or maintained for a commercial purpose. Permitted dogs, cats, and other pets shall be confined to the dwelling or restrained by hand-held leash and shall not be permitted to run free or otherwise to be or become a nuisance or source of annoyance to other residents.
1.9 SIGNS No sign shall be erected or displayed upon any residential lot without prior written consent as provided in Section 1.13; provided, such permission shall not be required for one sign no larger than 6 inches by 24 inches displaying the name or address of the occupant; or for one temporary sign no larger than 16 inches by 24 inches of a previously approved design, advertising the property for sale or; or for temporary community decorations of reasonable time. Signs advertising the property for sale or rent shall be removed upon the sale or rental of the unit, and such temporary community decorations as are permitted shall be removed upon conclusion of the community project. Members owning three or more lots which are for sale at one time, may submit a proposal to the Committee for approval of one larger sign showing all lots said member has for sale. If approved, this sign would be used instead of multiple individual signs on those lots.
1.10 USE OF PROPERTY. No dwelling shall be used for the conduct of business or for any purpose other than residential purposes unless prior written consent is obtained. No oil or gas well, mine or quarry, or equipment therefore, and no appliance or structure for business purposes shall be located or operated on any of the Properties designated by the Architectural Committee as residential premises. Installation of unsightly apparatus such as drying lines, flag poles, radio poles, exterior-mounted television antennae, exterior machinery for cooling and/or heating, and structures detached from the dwelling unit are prohibited on buildings or residential units unless prior written consent is obtained as provided in Section 1.13. Satellite receiver dishes measuring 18" or less shall be permitted provided they are not mounted on the fronts of houses or garages or conspicuously visible from the streets. All drapery linings and window coverings which are visible from the street or neighboring properties should be of materials and colors which harmonize with the surroundings.
Garbage and other waste shall be kept in sanitary containers away from public view, except on regularly scheduled pick-up days, and regularly disposed of. Nothing shall be done which may constitute a nuisance to the neighborhood or other occupants. Burn barrels or containers for the outdoor burning of waste materials are prohibited.
1.11 LANDSCAPE AND MAINTENANCE. Landscaping of residential units shall be completed within a reasonable time after building completion but not more than ninety (90) days and shall conform to the general pattern of others in the community as established pursuant to Section 1.2 and to such standards, if any, as may be published by the Architectural Committee.
Lot clearing shall be done so as to leave a minimum of 6" of ground cover to prevent erosion. No existing tree measuring more than 4" in diameter (which is 12 5/8" in circumference) at a point 3' above the surrounding ground level shall be removed from the Properties unless prior written consent as provided in Section 1.13 shall have been obtained. Trees which are removed shall be cut or ground flush with the surrounding ground level, leaving no protruding stumps. Person wishing to clear or excavate lots to bare dirt or use mechanical equipment which is not hand-held must first post cash or bond in an amount stated in the Bylaws, or Certificate of Insurance providing protection for the Association against road damage, erosion and other concerns of the Board. All yards and growth thereon shall be maintained, cultivated and kept free of weeds insects and diseases.
1.12 OCCUPANCY OF RESIDENTIAL UNITS. No residential unit on the Properties shall be occupied by any person who is not a Proprietary or Associate Member of the Sea Crest Association; provided, this restriction shall not prohibit temporary and social visitation of a residential unit by persons not so qualified to be occupants. Variances from the restrictions on occupancy defined herein may be granted on such terms and conditions as the Board may deem appropriate, as provided in Section 1.13. Variances will not be given for short-term or nightly rental of residential structures in the Properties.
1.13 GRANT OF WAIVERS OR CONSENTS. Jurisdiction and authority to grant or extend exceptions, variances, waivers, or consents contemplated by the foregoing Sections 1.2 through 1.13 inclusive shall be primarily in the Declarant and the Board of Directors during such period as Declarant shall own any real property in the Properties. The jurisdiction and authority for insuring compliance with those sections shall be primarily in the Architectural Committee. Any disputed committee decision may be reviewed by and/or appealed to the Board of Directors, in which case the decision of the Board shall be final. It is expected that such exceptions will be rare and will not include designs considered by the granting authority to be extremely unconventional.
2.0 PROPERTY RIGHTS IN COMMON AREAS.
2.1 The term “Common Area” shall include: (a) all land in the Properties not platted as a part of a lot or site for a residential structure and not actually occupied by any part of a residential structure; and (b) all buildings, streets, roads, paths, utility lines and other improvements of whatever kind or nature, through or over any such land; and (c) any other or additional common areas or facilities in the Properties.
2.2 Appurtenant to each residential unit in the Properties shall be a nonexclusive right and easement of enjoyment to be shared in common with others in and to the Common Area, which right and easement shall pass with the title to such residential unit. The right and easement shall be subject at all times to terms and conditions of the Declaration and the Bylaws of the Sea Crest Association, and to the following provisions and limitations:
2.2.1 The Board of Directors of Sea Crest Association shall have the right to limit the number of persons permitted to use at any one time a particular part of the Common Area.
2.2.2 The Board of Directors of Sea Crest Association shall have the right 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 upon by the Board of Directors.
2.2.3 The Board of Directors of Sea Crest Association shall have the right to promulgate reasonable rules and regulations governing such rights of use and easements, from time to time, in the interest of securing maximum safe usage of the Common Area by those entitled to make use thereof without unduly infringing upon the privacy or enjoyment of the owner or occupant of any part of the Properties including, without limitation, rules restricting persons under or over designated ages from using certain portions of the Common area during certain times, and reasonable regulations and restrictions respecting the use, parking and speed of automobiles in the Common Area. The Board of Directors and members of the Association shall have the right (but not the duty) to enforce any such rules, regulations or restrictions.
2.2.4 The Board of Directors of Sea Crest Association shall have the right by unanimous vote, to trade, transfer or encumber small portions of the Common Area (1) to assist and enable owners to improve lots which are difficult to improve because of terrain or topography, or (2) when the board deems it necessary or in the best interest of the Association.
2.3 COMMON AREA IMPROVEMENTS. Declarant or the Sea Crest Association (through its Board of Directors) may construct improvements on the Common Area for the use, service or benefit, in common, of the members of the Association. These improvements may include, but are not limited to, an outdoor lighting system, streets, roads or roadways not accepted by any city or municipality for public maintenance or otherwise incorporated into its road system, sidewalks, foot paths or other improvements.
2.4 CONVEYANCE OF THE COMMON AREA. At such time or times as the Declarant shall deem appropriate, it may convey to the Sea Crest Association, subject to all easements and agreements of record, some or all of the Common Area: provided, that any part so conveyed shall be unencumbered by any debt encumbrance at the time of conveyance. In accordance with the May, 1996 Settlement Agreement, the Sea Crest Association has accepted each such conveyance and shall thereafter be vested with authority to govern the Area so conveyed and shall continue to be responsible to operate and maintain the Area, and the Declarant thereafter shall have no obligation or responsibility, financial or otherwise, with respect thereto.
2.5 INDIVIDUALS’ RIGHTS TO DELEGATE USE OF COMMON AREA. The owner(s) of any residential unit in the Properties may assign, in accordance with rules and regulations adopted from time to time by the Board of Directors of Sea Crest Association, the owner’s right of use and enjoyment of the Common Area to his tenants or guests on the property pursuant to such rules and regulations as may be prescribed from time to time by the Board of Directors of the Association.
2.6 RIGHT TO ENTER INTO AGREEMENTS WITH RESPECT TO THE USE OF THE COMMON AREA. Subsequent to Declarant’s conveyance of the Common Area to the Association, the Board of Directors shall have the right to enter into agreements with other entities, individuals, and associations, including those associations which may be formed as separate homeowners associations for contiguous subdivisions or plats which in the future may be recorded by the Board, to provide them right of use and enjoyment of the Common Area. These agreements may be on such terms as the Board, in its sole discretion, deems appropriate. Without limitation on the foregoing, these agreements may provide for reciprocal use and maintenance of the Common Area and common area facilities or services owned or operated by those entities, individuals or associations. These agreements may be for a perpetual term or for a shorter term. The Board of Directors shall have the right to enter into such agreements or to negotiate to modify such existing agreements as the Board in its sole discretion, deems appropriate, provided the best interests of the membership is a primary consideration. All such agreements shall be binding upon all members of the Association.
2.7 LOT 48 From July 6, 2001 forward, Lot 48 shall be designated, in perpetuity, as Sea Crest common area, subject to all rights and limitations as stated in Section 2 of this Declaration.
3.0 SEA CREST ASSOCIATION. Sea Crest Association shall be duly formed and incorporated as an Oregon nonprofit corporation. It shall be administered as an Oregon nonprofit corporation. It shall be administered by a Board of Directors pursuant to its Articles of Incorporation and its Bylaws.
3.1 MEMBERSHIP Memberships in the Association shall be divided into two groups: Proprietary members and Associate members.
3.1.1 [This paragraph has been deleted in its entirety. Class A and Class B membership classifications were terminated, effective July 31, 1999.]
3.1.2 Membership classes defined:
22.214.171.124 Proprietary members. Each owner of a residential unit in the Properties, including Declarant, shall be a Proprietary Member of the Association; provided that the purchaser(s) of a residential unit under a duly recorded land sale contract shall be deemed the “owner” of such residential unit for these purposes. Each Proprietary Member shall be entitled to one vote per residential unit owned by such member: provided that if two (2) or more Proprietary Members shall own any residential unit in any form of common ownership, the common owners collectively are entitled to one vote, and the common owners shall designate in writing filed with the secretary of the Association the name of the common owner who shall exercise the voting right for such residential unit.
The rights and privileges of a Proprietary Membership shall terminate when the holder of any such Proprietary Membership ceases to qualify as an owner, and his certificate of membership shall thereupon be void.
126.96.36.199 Associate members . Each lessee, renter, or other occupants of a residential unit in the Properties not eligible for Proprietary Membership, but who satisfies the conditions of the bylaws of the Association and of the Declaration respecting residence in the Properties, shall be an associate Member, which status shall continue in effect during such period as the Associate Member shall be an authorized nonproprietary tenant of a residential unit in the Properties. Associate Membership shall carry all the rights and privileges, and shall be subject to all obligations and responsibilities of Proprietary Membership, except the right to vote. At any time an Associate Member shall cease to be a resident of the Properties, or shall become a Proprietary Member, his right and privileges as an Associate Member shall thereupon terminate.
3.1.3 [Paragraph 3.1.3 is has been deleted in its entirety.]
3.2 ASSESSMENTS, PURPOSE OF ASSESSMENTS, LIENS AND COLLECTIONS.
3.2.1 Assessments. The Association is vested with power and authority to, and shall, assess and collect from time to time from its Proprietary Members; (1) monthly assessments or charges; and (2) special assessments for capital improvements or maintenance, such assessments to be fixed, assessed and collected as hereinafter provided. Such monthly and special assessments shall be chargeable equally against the respective residential units in the Properties; provided, however, that no assessments shall be assessed on residential units while owned by Declarant until a residential structure has been constructed thereon and until said structure is occupied by a resident. Each such assessment, together with interest at the legal rate from the due date on unpaid balances of the assessment and costs and expenses, and also including a reasonable attorney’s fee (whether or not suit is filed, and in event of appeal), incurred in the collection thereof, shall become a charge against the respective residential unit against which the assessment is made, which lien may be enforced in accordance with law. Each owner of a residential unit, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed or other conveyance, is deemed to covenant and agree to pay to the association each such monthly or special assessment, and each such assessment shall be a lien against the residential unit. No owner may avoid liability for the assessments provided for herein by non-use of the community facilities by himself or any occupant of the residential unit against which the assessment is levied.
188.8.131.52 The association has a lien on a lot for any assessment levied against the lot, or any fines imposed under the Declarations or Bylaws against the owner of the lot, from the date on which the assessment and any installment thereof, or the fine is due. At any time when any assessment, lien, late fees or fine of any type provided for by this declaration or the Bylaws, or installment thereof is delinquent, the association, by and through its Board, may file a Notice of Lien in the records of Lincoln County, Oregon, against the lot in respect to which the delinquency pertains. Once filed, such liens shall accumulate all future assessments or installments, interest, late fees, penalties, fines, attorney’s fees (whether or not suit or action is instituted), and other appropriate costs properly chargeable to an owner by the association, until such amounts are fully paid. Said lien may be foreclosed at any time, but not later than six (6) years after the latest lienable charge has been imposed. In addition, the association specifically adopts by reference and incorporates herein, the provisions of ORS 94.709.
3.2.2 Purpose of Assessments. The assessments levied by the association shall be used exclusively for the purpose of promoting the recreation, health, safety, welfare and protection of the residents in the Properties and in particular for procurement and maintenance of a general liability policy insuring the Association, its members and directors, against liability arising out of any accident, occurrence or event upon or in any Common Area, and for the repair and maintenance of the Common Area and improvements thereon, including outdoor lighting, water system, fire hydrants, drainage or storm sewer system, roads, streets, planted parkways, and for all other purposes related to the use and enjoyment of the Common Area and operation of the Association.
3.2.3 Basis of Assessments. Subject to change as hereinafter provided, the monthly assessment shall start at Thirty dollars ($30) per residential unit. The monthly assessment may be increased or decreased effective January 1 or July 1 of each calendar year by action of the Board of Directors of the Association.
3.2.4 Special Assessments for Capital Improvements. In addition to the monthly assessments authorized above, the Board of Directors may levy, effective January 1 or July 1 of each calendar year, a special assessment for the purpose of defraying in whole or in part the cost of any construction or reconstruction, repair, maintenance or replacement of any capital improvement described in the notice of the Board meeting at which such action shall be considered; provided, however, that no assessments shall be assessed on residential units while owned by Declarant until a residential structure has been constructed thereon and said structure is occupied by a resident.
3.2.5 Uniform Rate of Assessment. Unless otherwise provided by action of the Board, both monthly and special assessments shall be fixed at a uniform rate per residential unit and may be collected on a monthly basis, or such other basis as the Board shall determine. During any period when the Declarant shall own any real property in the Properties, any action of the Board of Directors fixing any assessment per residential unit shall be ineffective unless the Declarant shall in writing concur with that action. The following property shall be exempt from the paying of assessments created herein: (a) all properties expressly dedicated to and accepted by a local public authority; (b) the Common Area; and (c) all other properties owned by the Sea Crest Association.
3.2.6 Sea Crest Association Option to Remedy Violations. The Board of Directors, at its option, shall have the power and right at all times , following reasonable notice to the owner by Certified U.S. mail, to enter upon property to abate and correct any violation of the Conditions, Restrictions and Regulations applicable to the Properties. Said notice shall include a description of the violation and a stated compliance period of not more than four (4) months. These possible corrections include, without limitations, the right to plant or replant, trim, cut back, remove, replace, cultivate or maintain hedges, trees, shrubs, plants or lawns; and to clean, paint, repair, replace and generally maintain the appearance of residential unit and improvements thereon and to keep said residential unit or any building and improvement thereon in neat and good order to conform with the general attractive character of the area. Any and all expenses which may be incurred by the Association pursuant to this Section 3.2.6 shall be a charge and lien against the residential unit involved with a lien enforceable as above provided.
4.0 STREETS AND ROADWAYS.
The Association shall maintain the streets and roadways within the Properties so long as the streets and roadways remain private. Notwithstanding paragraph 2.2.2 herein, upon the request of the appropriate public authorities for dedication of roadways and streets to the public, the Board of Directors shall promptly make such dedication; provided, however, that upon such dedication, the responsibility for maintenance and upkeep of the dedicated streets and roadways shall rest solely on the public authorities; and further provided that said public authorities agree that the Properties will remain a gated community.
5.0 EASEMENTS AND ENCROACHMENTS.
5.1 Each conveyance of land situated in the Properties made by Declarant, and by any person claiming by, through or under Declarant, shall be subject to the conditions, restrictions, covenants and regulations defined herein, whether or not the same be expressed in the instruments of conveyance, and each and every such instrument of conveyance shall likewise be deemed to grant and reserve, whether or not the same be declared therein, mutual and reciprocal easements over and across and under and through the Common Area and all other parts of the Properties (excepting that any portion of the Properties which may now or hereafter be occupied by a residence, carport, garage, patio, deck or other permitted structure shall not thereafter be subject to any easement not theretofore applied to use), for the purpose of building, constructing and maintaining thereon underground or concealed electric or telephone lines, gas, water, sewer, storm drainage lines, radio or television cables or other services now or hereafter commonly supplied by public utilities or municipal or private corporations or for the purpose of constructing and maintaining on any part thereof sidewalks, driveways, roads, vehicular turning areas and parking areas. Each of said easements shall be for the benefit of all present and future owners of lots or sites in the Properties; said easements, however, shall not be unrestricted, but shall be subject to reasonable rules and regulations governing rights of use as adopted from time to time by the Board of Directors of the Association in the interest of securing maximum safe usage of said property without unduly infringing upon the rights or privacy of the owner occupant of any part of said property.
5.2 If any residential structure located primarily on a platted lot (“dominant lot”) as actually constructed shall have any portion thereof which extends over or across its lot line and encroaches on an adjacent platted lot (“servient lot”) the dominant lot, and its owner, shall have a perpetual right and easement, which shall run with the dominant lot, to maintain the encroaching construction through the life of such construction and all replacements, and such right and easement shall be an encumbrance upon the servient lot.
5.3 The owner and occupant of a residential unit will permit access, by the owner or occupant of an adjoining or adjacent site and Sea Crest Association employees or any contractor hired by the Association, to slopes or drainageways on the property of the former to maintain slopes or drainage facilities for the protection and use of such adjoining or adjacent site. Each owner will not block, hinder or interfere with the established drainage pattern over his land from adjoining or adjacent land.
5.4 So long as Declarant owns any property in the Properties, Declarant shall have a continuing easement over and across and under and through the Common Area for the purpose of constructing improvements on or development of residential units owned by Declarant.
6.0 [this section is has been deleted in its entirety.]
7.0 EXTERIOR MAINTENANCE.
7.1 Each owner shall be responsible for maintenance, in a manner consistent with the policy of land use applicable to the Properties, of his residential unit and the improvements thereon, including appropriate care for trees, shrubs, grass, landscaped areas, walks and other exterior improvements. Damage caused by fire, flood, storm, earth movement, earthquake, riot, vandalism or other cause shall be also the responsibility of the owner responsible for maintenance and not included in any maintenance provided or furnished by the Association. The Association shall have the right, following notice to the owner by Certified U.S. mail, to enter upon any residential unit for the purpose of performing exterior maintenance not performed by the owner at reasonable hours on any day except Sunday. Said notice shall include a description of the violation and a stated compliance period of not more than four (4) months.
Each owner shall be responsible for maintaining and keeping in good order
and repair the interior of any building located upon residential unit owned by
him, to the extent that any such interior is visible from the street or
neighboring residential units or when failure to perform such maintenance
creates a nuisance, disturbance or danger to neighbors.
7.3 In the event any owner shall fail or neglect to perform any maintenance or repair responsibility imposed upon him, the Sea Crest Association, through its Board of Directors, without obligation so to do, may undertake to perform such function, in which event the cost of such maintenance or repairs may, in the discretion of the Directors, be added to and become a part of the assessment to which the residential unit is subject, and a part of the lien enforceable with respect thereto.
8.0 DECLARANT’S EASEMENT
Declarant and its agents and independent contractors shall have an easement over and upon the Common Area as may be reasonably necessary for the purpose of completing construction of common facilities and landscaping.
9.0 RULES AND REGULATIONS
The Board of Directors may adopt, amend or repeal rules and regulations to provide for the manner in which the common area and facilities thereon shall be used. The rules and regulations will be applicable on a nondiscriminatory basis. However, provisions uniformly applicable to a class of persons, such as children of particular ages, will not be deemed discriminatory.
10.1 The Association shall procure and maintain the general liability policy referred in section 3.2.2.
10.2 The owner of every building on a residential unit located upon any part of the Properties shall at all times cause the same to be insured with fire insurance with extended coverage and special form endorsements for the full replacement value thereof.
10.3 The Association may procure such other insurance as the Board of Directors deems necessary or proper, including insurance for error and omissions of directors and officers, and insurance for fire and extended coverage on Common Area improvements.
11.0 MAINTENANCE OF DRAINAGE AND STORM SEWER SYSTEM
The Board of Directors shall cause to be maintained the drainage and storm sewer system on the Properties as that system is indicated on the recorded plats. The cost of this maintenance shall be an Association expense.
12.0 GENERAL PROVISIONS
12.1 TERMS All of the restrictions, covenants and agreements herein contained shall apply to all residential units in the Properties and shall be binding upon all parties claiming under Declarant until January 1, 2000, at which time they shall automatically extend for successive periods of five (5) years; unless effective January 1, 2000, or at the end of any such five-year (5) extension, the membership of the Sea Crest Association, by two-thirds (2/3) vote of those present and voting, at a special meeting called for the purpose, shall resolve to terminate these restrictions; provide, that, with the concurrence of Declarant during such period as it shall own any real property in the Properties, the restrictions may be changed, supplanted or rescinded in any or all particulars at any time by a vote of three-fifths (3/5) of the Board of Directors of the Sea Crest Association at any regular or special meeting called for such purpose, whereupon such change shall be binding upon such owners of residential units in the Properties and their successors in interest and the occupant of such residential units; provided that no change or rescission shall prejudice or limit any easement or mortgage of record.
12.2 ENFORCEMENT The Board shall have the ability to enforce these CC&R’s by the imposition of fines or other sanctions in accordance with the standards and procedures provided in the Bylaws.
The Sea Crest association, the owners or Declarant or its successor shall have the right to enforce all of the covenants, conditions, restrictions, reservations, easements, liens and charges now or which hereinafter may be imposed by any of the provisions of this declaration as may pertain specifically to such parties or owners by any proceeding at law or equity. Failure by the association, any owner or the Declarant or its successor to enforce any covenants, condition or restriction herein contained shall in no event be deemed to be a waiver of its right to do so thereafter.
In addition to seeking damages or other legal remedies, any owner, the association, or the Declarant or its successor shall have the authority to seek equitable remedies, including, without limitation, prohibitory and mandatory injunctions and specific enforcement. In the event the association brings suit or action to enforce the terms and provisions of this declaration, the association shall be entitled to its attorney’s fees and costs if such suit or action be fixed by the trial court and in the event of an appeal, the cost of the appeal, together with reasonable attorney’s fees to be set by the appellate court. In addition thereto, the association shall be entitled to its reasonable attorney’s fees incurred in any enforcement activity taken to collect delinquent liens or assessments, whether or not suit or action is filed.
12.3 SUBORDINATION Any breach of the covenants and restrictions contained herein, a re-entry by reason thereof, or judgment or lien resulting therefrom shall be subordinate to any mortgage or deed of trust executed prior to such breach, re-entry, judgment or lien, in good faith and for value encumbering a unit, but shall be binding upon and effective against a subsequent purchaser thereof.
A bona fide purchaser for value or mortgagee, without actual or constructive notice of an existing breach of the conditions and restrictions contained herein shall not be bound thereby; provided the Association, through its Board of Directors, may execute, acknowledge and record a Notice of Claim of Breach, setting forth the facts thereof with any monetary amount involved, description of the unit against which the lien is claimed, and name or names of the reputed owners thereof. Such notice, recorded in Lincoln County shall be public notice of such breach, and constructive notice to any subsequent purchaser, but if no action for enforcement thereof has been commenced within one hundred twenty (120) days after recording, such notice shall expire and the breach described presumed to have been remedied.
12.4 SEVERABILITY Invalidation by judgment or decree of any one or more of these restrictive covenants herein defined or as hereafter duly amended, shall in no way affect any of the remaining provisions which shall remain in full force and effect.
12.5 BINDING EFFECT The provisions contained in this Declaration, as herein defined or as hereafter duly amended, shall bind and inure to the benefit of and be enforceable by, the Declarant, the owner or owners of any residential unit in the Properties, and their respective representatives, successors or assigns.
12.6 ASSIGNMENT BY DECLARANT Any or all rights, powers, and reservations of Declarant herein contained may be assigned to the Association or to any other corporation or association which is now organized or which may hereafter be organized and which will assume the duties of Declarant hereunder pertaining to the particular rights, powers and reservations assigned; and upon any such corporation or association evidencing its intent in writing to accept such assignment and assume such duties, it shall, to the extent of such assignment, have the same rights and powers and be subject to the same obligations and duties as are given to and assumed by Declarant herein. All rights of Declarant hereunder reserved or created shall be held and exercised by the Declarant alone, so long as it owns any interest in any portion of the Properties.
12.7 NON-WAIVER Failure or delay to enforce any covenant or restriction shall not be deemed a waiver of the right to do so.
AMENDMENT TO DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
PURSUANT TO a special meeting of the Board of Directors of the Sea Crest Homeowners Association this 22nd day of August, 1995, the Declaration of Covenants, Conditions and Restrictions as set out in Book 199, Page 0323 of the microfilm records of Lincoln County, Oregon and amended by instrument recorded in Book 236, Page 132 and 146, microfilm records of Lincoln County, Oregon, be and hereby are amended in the following particulars:
1. The Board of Directors of the Sea Crest Homeowners Association is authorized to arrange for ongoing operation, maintenance and improvement of any water distribution system within the roads or common areas of Sea Crest and to assess and collect assessments therefor.
2. The Board of Directors of the Sea Crest Homeowners Association is authorized to arrange for the ongoing operation, maintenance and improvement of the sewage collection and treatment system within the common areas and roads of Sea Crest, and to assess and collect assessments therefor.
3. The Board of Directors of the Sea Crest Homeowners Association shall have the right and obligation to appoint representatives (two board members) to the Johnson Creek Water Company Board and to remove such representatives and appoint new representatives upon an affirmative vote of 60 percent of the Board of Directors of the Sea Crest Homeowners Association.
4. The Board of Directors of the Sea Crest Homeowners Association is authorized to act on behalf of the Association in negotiating contracts and arrangements for water and sewer services.
5. The Board of Directors of the Sea Crest Homeowners Association is specifically authorized to act on behalf of the Sea Crest Homeowners Association in negotiating with the owners of the subdivision known as “Otter Village Phase II”, and other properties in the area, with regard to any and all matters, including but not limited to, membership in the Sea Crest Homeowners Association, assessments, maintenance of roads, storm sewer drainage systems, sanitary sewer systems, water systems, and use of facilities owned and/or controlled by the Sea Crest Homeowners Association. This paragraph 5 shall be in addition to and shall not limit the powers, rights and duties as set forth in Section 2.6 on page 13 of said Covenants, Conditions and Restrictions.
6. After such time as the office, position and/or status of the “Declarant” is terminated, expires, and/or no longer exists, the Sea Crest Homeowners Association may amend these Covenants, Conditions and Restrictions and/or the Plat of “Sea Crest at the Otter Rock, a re-plat of Otter Village” upon the vote or written agreement of the members representing 75 percent of the total votes in the Association. When the Association adopts an amendment to the Declaration, the Association shall record the amendment in the microfilm records of Lincoln County, Oregon. An amendment of the Declaration is effective only upon recordation. Amendments to the Declaration shall be executed, recorded and certified on behalf of the Association by any officer of the Homeowners Association designated for that purpose, or in the absence of designation, by the president of the Board of Directors of the Association. A person may not bring an action to challenge the validity of an amendment as set out herein later than one (1) year after the date on which the amendment is recorded. However, nothing shall prevent the Association from further amending the amended Declaration or Plat.
7. The Board of Directors of the Sea Crest Homeowners Association is specifically authorized to enter into a settlement of Lincoln County Circuit Court Case No. CV921083 with respect to a writing entitled “Agreement Creating Easement”, recorded at Book 185, Page 1385 in the microfilm records of Lincoln County, Oregon and involving real property adjacent to the Inn at Otter Crest and sewer and water facilities located thereon. The Board is also authorized to implement by Board action any settlement of said lawsuit, said lawsuit being filed in the Circuit Court of Lincoln County, Oregon.
8. Within 30 days after the Board of Directors of the Sea Crest Homeowners Association adopts a proposed annual budget, the Board of Directors shall provide a summary of the budget to all owners. If the Board of Directors is petitioned by owners representing 20 percent of the votes of the Association, the Board shall call a meeting of the owners to consider rejection of the budget. The date of the meeting shall be not less than 14 days nor more than 30 days after the summary is provided to the owners. At the meeting, whether or not a quorum is present, the budget shall be adopted unless a majority of the votes of the Association rejects the budget. If the proposed annual budget is rejected, the last annual budget shall continue in effect until the owners approve a subsequent budget. This paragraph 8 shall only take effect at such time as the office, position and/or status of the “Declarant” is terminated, expires, and/or no longer exists.
9. Voting by proxy shall be permitted at any regular or special meeting and for any purpose, including but not limited to voting for Directors, amending the Declaration or Bylaws, voting on budget matters, and any and all other matters voted upon by members of the Sea Crest Homeowners Association.
10. To the extent of a conflict between this document entitled “Amendment to Declaration of Covenants, Conditions and Restrictions” and the previously recorded (as set out above) Conditions, Covenants and Restrictions and Bylaws, this amendment shall control.