Second Restatement of Declaration of Restrictive Covenants of Glencairn Association, Inc.

Transcription

1 Second Restatement of Declaration of Restrictive Covenants of Glencairn Association, Inc. Table of Contents ARTICLE I DEFINITIONS... 1 SECTION 1. ASSOCIATION SECTION 2. OWNER... 2 SECTION 3. PROPERTIES SECTION 4. COMMON AREA... 2 SECTION 5. BUILDING SITES SECTION 6. VALUE AND DESIRABILITY ARTICLE II PROPERTY RIGHTS... 2 SECTION 1. OWNERS' EASEMENTS OF ENJOYMENT SECTION 2. DELEGATION OF USE SECTION 3. RESPONSIBILITIES FOR DELEGATION OF USE SECTION 4. INDEMNIFICATION SECTION 5. REQUIREMENT OF INDIVIDUAL LIABILITY INSURANCE SECTION 6. ASSOCIATION RESPONSIBILITIES...'"... 4 ARTICLE III MEMBERSHIP AND VOTING RIGHTS... 4 SECTION 1. VOTING MEMBERS SECTION 2. CLASSES OF VOTING MEMBERSHIP ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS... 5 SECTION 1. CREATION OF A LIEN AND PERSONAL OBLIGATION OF ASSESSMENTS... 5 SECTION 2. PURPOSE OF ASSESSMENTS SECTION 3. MAxiMUM ANNUAL ASSESSMENT SECTION 4. SPECIAL ASSESSMENTS...:... 5 SECTION 5. VOTING AGAINST A SPECIAL ASSESSMENT... 6 SECTION 6. PAYMENT OF SPECIAL ASSESSMENTS SECTION 7. WINTER USE ASSESSMENTS... 6 SECTION 8. NOTICE AND QUORUM FOR ANy ACTION AUTHORIZED UNDER SECTIONS 3 AND SECTION 9. UNIFORM RATE OF ASSESSMENT SECTION 10. DATE OF COMMENCEMENT OF ANNuAL ASSESSMENTS... 6 Second Restatement of Declaration of Restrictive Covenants /12/ 06

2 SECTION 11. EFFECT OF NON-PAYMENT OF ANNuAL ASSESSMENT SECTION 12. SUBORDINATION OF THE LIEN TO MORTGAGES..., 7 SECTION 13. EFFECT OF NON-PERFORMANCE OF LABOR... 7 ARTICLE V ARCHITECTURAL CONTROL... 7 SECTION 1. RESTRICTIONS AND APPROVAL... 7 SECTION 2. ARCHITECTURAL CONTROL COMMITTEE... 7 ARTICLE VI GENERAL PROVISIONS... 8 SECTION 1. ENFORCEMENT... 8 SECTION 2. SEVERABILITy SECTION 3. AMENDMENT SECTION 4. ANNEXATION... 8 SIGNATURE PAGE... 9 Second Restatement of Declaration of Restrictive Covenants -11-

3 SECOND RESTATEMENT OF DECLARATION OF RESTRICTIVE COVENANTS OF GLENCAIRN ASSOCIATION, INC. The following Second Restatement of the Declaration of Restrictive Covenants shall amend and supersede the Declaration of Restrictive Covenants previously executed by the GLENCAIRN ASSOCIATION, INC. and duly filed with the State of Idaho, Kootenai County on March 22 nd, THIS DECLARATION, made on the date hereinafter set forth by PATRICK A. CONDON, MARY E. CONLEY, JOHN J. CONDON, KATHLEEN GREEN, BRIDGET D. BROCKMEYER, MICHELL C. WINGARD, WILLIAM J. CONDON, and DANIEL H. CONDON, et ai., hereinafter referred to as DECLARANTS. WITNESSETH WHEREAS, Declarants are the owners of certain property in Hayden Lake, County of Kootenai, State of Idaho, which is more particularly described as: Block 1, Glencairn Planned Unit Development, as recorded according to the Plat Book G, Page 72-72A, records of Kootenai County, Idaho, and lying within Lot 17, A.E. Powell Tracts, Section 22, Township 51 N, Range 3 W., B.M. NOW THEREFORE, Declarants hereby declare that all of the properties described above shall be held, sold or conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purposes of protecting the described properties' value and desirability. The foregoing shall run with the real property and bind all parties having any right, title, or interest in the described properties or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof. Article I Definitions Section 1. Association "Association" shall mean and refer to GLENCAIRN ASSOCIATION, INC., its successors and assigns. -1-

4 Section 2. Owner "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Building Site which is part of the Lots 1-8, Block 1, Glencairn P.UD., as recorded according to the Plat Book G, Page 72-72A, records of Kootenai County, Idaho, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation. Section 3. Properties "Properties" shall mean and refer to that certain real property hereinbefore described, and such additions thereto as may hereafter be bought within the jurisdiction of the Association. Section 4. Common Area "Common Area" shall mean and refer to all real property, including improvements thereto, owned by the Association for the common use and enjoyment of the owners. The Common Area to be owned by the Association at the time of the conveyance of the first lot is described as follows: All of Block 1, Glencairn Planned Unit Development, as recorded according to the Plat Book G, Page 72-72A, records of Kootenai County, Idaho, lying within Lot 17, A.E. Powell Tracts, Section 22, T 52 N, R 3 W, B.M., with the exception of Building Sites 1,2,3,4,5,6,7, and 8. Section 5. Building Sites "Building Sites" shall mean and refer to any plot of land shown upon any recorded subdivision map of the properties with the exception of the Common Area. Section 6. Value and Desirability "Value and Desirability," as written above in the statement of purpose, shall mean and incorporate by reference the statement of purpose as written in Article I of the Articles of Incorporation of the Glencairn Association, Inc. Section 1. Owners' Easements of Enjoyment Article II Property Rights Every owner shall have a right of easement and enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Building Site, subject to the following provisions: -2-

5 (a) the right of the Association to charge reasonable maintenance and other fees for the use of any recreational facility situated upon the Common Area; (b) the right of the Association to dedicate or transfer any part of the Common Area to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the members. No such dedication or transfer shall be effective unless an instrument agreeing to such dedication or transfer is signed by a seventy-five percent (75%) majority of the owners as recorded. Section 2. Delegation of Use Any owner may delegate, in accordance with the By-Laws of Glencairn Association, Inc., his/her right of enjoyment to the Common Area and facilities to the members of his family and guests, or contract purchasers who reside on the property subject to the permission and presence of one (1) or more Association members. Section 3. Responsibilities for Delegation of Use Each member and/or guest assumes all responsibilities and liabilities associated with the use or the delegation of the right of enjoyment to the Common Area and facilities. This shall include, but not be limited to, the following: a. Reasonable rents for use of the Common Area and facilities. b. Liability for injuries resulting from such use an not related to any unreasonably dangerous conditions. c. Damage to Common Area property and facilities resulting from such use. d. Care and maintenance required after such use. e. Injuries arising from the unsupervised use of such property by member's guests. Section 4. Indemnification Each member agrees to hold harmless the Association, its officers and members against all expenses and liabilities, including attorney's fees, reasonably incurred or imposed upon the Association, its officers or members by judgment or settlement in connection with any proceeding to which the Association, its officers or members may be a party, or in which the Association, its officers or members may become involved, where a member's guest is seeking damages for injuries arising in connection with unsupervised or otherwise unauthorized use of the Glencairn properties. -3-

6 Section 5. Requirement of Individual Liability Insurance Each member agrees to carry individual liability insurance covering their building site and one eighth (1/8) interest in the Common Area. Section 6. Association Responsibilities The members of the Association agree that the Association owes no duty of care to keep the land safe for entry or use by its members or their guests for any recreational purpose or to give any warning of dangerous condition, use, structure or activity on the land to members or their guests entering thereon for any such purpose. Where the Association either directly or indirectly invites or permits any member or their guests to use the land for any recreational purpose, the Association does not thereby extend any assurance that the land is safe for any purpose; confer upon such member or guest the legal status of an invitee or licensee to whom a duty of care is owed, or; assume responsibility for or incur liability for any injury, death or loss to any person or property caused by an act or omission of that person. Article III Membership and voting Rights Section 1. Voting Members Every owner of a building site which is subject to assessment shall be a voting member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any building site which is subject to assessment. Section 2. Classes of Voting Membership The Association shall have one class of voting membership. All owners shall be entitled to one vote for each building site owned. When more than one person holds an interest in any building site, all such persons shall be members. The vote for such building site shall be exercised as they determine, but in no event shall more than one vote be cast with respect to any building site for any matte relevant to this Declaration, the Glencairn Association Agreement or its By-Laws. Each building site member group shall submit to the Association in writing the name and address of the voting member and the signature of all other members with an interest in that building site. This submission shall expressly permit on member to vote on behalf of the building site group and specify what matters may be voted on. -4-

7 Article IV Covenant for Maintenance Assessments Section 1. Creation of a Lien and Personal Obligation of Assessments Each owner of a building site is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges, and (2) special assessments for capital improvements, as prescribed by this Declaration, the Articles of Incorporation and the By Laws. Such assessments shall be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs and reasonable attorney's fees shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of the person who was the owner of such property at the time the assessment fell due. The personal obligation for delinquent assessments shall not pass to successors in title unless expressly assumed by them. Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents in the properties and for the improvement and maintenance of the Common Area. Section 3. Maximum Annual Assessment The annual assessment shall be fixed by a vote of a majority (more than 50%) of the owners at the annual meeting. Those assessments shall be limited to those required by (1) law, (2) liability, and (3) essential utilities. Voting procedures shall be controlled by Article VII, Voting Rights and Elections of the By-Laws.. Section 4. Special Assessments In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of seventy-five percent (75%) of the owners as prescribed in Article VI of the Articles of Incorporation and Article IX, Section 5, Paragraph 4 of the By-Laws, at a meeting duly called for this purpose. -5-

8 Section 5. Voting Against a Special Assessment In the event a member or members choose not to vote for a special assessment either for financial or for health reasons, but are not otherwise opposed to a project, a special assessment shall be levied only against those voting in favor. Those voting against will not be subject to assessments or liens resulting from the project. Use and enjoyment of the project's benefit shall, however, inure to all members according to their interest in the Association. Each members' use shall not exceed reasonable use thereof. Section 6. Payment of Special Assessments Where a member is unable to contribute to special assessment and the voting members agree, a member may opt to contribute with labor toward completion of the project. Section 7. Winter Use Assessments The Common Area and facilities shall be closed for general use on September 15 and reopened on April 1 each year. Members wishing to use the properties during the closed months shall be assessed reasonable fees for needed utilities, general wear and tear, and snow plowing, if required, according to their respective use. Section 8. Notice and Quorum for Any Action Authorized Under Sections 3 and 4 Written notice of any meeting called for the purpose of taking any action authorized under Sections 3 and 4 shall be sent to all members not less than 30 days nor more than 60 days in advance of the meeting. The presence of one voting member per building site for all building sites or their legal delegate shall constitute a quorum. A failure to participate in the vote either in person or by proxy shall be governed by Article III of the By-Laws. Section 9. Uniform Rate of Assessment Annual assessments must be fixed at a uniform rate for all building sites and may be collected on a monthly basis. Special assessments may be fixed in the same manner as annual assessments 0 as negotiated for labor under Section 6 of this Article. Section 10. of Commencement of Annual Assessments The annual assessments provided for herein shall commence for all building sites on the first day of the month following the conveyance of the Common Area. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. Written notice of the annual assessment shall be sent to every owner subject thereto by mailing it to the address listed with the Association. -6-

9 Section 11. Effect of Non-Payment of Annual Assessment No owner may waive or otherwise escape liability for any assessments provided for herein by non-use of the Common Area or abandonment of the owner's building site. The Association will effect their right to place an automatic lien on the building site of the owner in default as set forth in Article 11, Section 2 of the By-Laws. Section 12. Subordination of the Lien to Mortgages The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any building site shall not affect the assessment lien. However, sale or transfer of any building site pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such building site from liability for any assessments thereafter becoming due or from the lien thereof. Section 13. Effect of Non-Performance of Labor Where a member has agreed to contribute labor toward the completion of a special assessment project and fails to perform in a timely and satisfactory manner, the member shall be assessed monetary damages sufficient to complete the portion of labor they agreed to contribute. Article V Architectural Control Section 1. Restrictions and Approval No building, fence, wall or other structure shall be commenced, erected or maintained upon the Association properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted in to the voting members of the Association. Section 2. Architectural Control Committee The Association shall have the power to designate a committee for the purposes of establishing and enforcing rules and regulations governing land use management and architectural standards within the Glencairn Association properties. -7-

10 Article VI General Provisions Section 1. Enforcement The Association shall have the right to enforce, by any proceeding at law orin equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to doso thereafter. Section 2. Severability Invalidation of anyone of the covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall be in full force and effect. Section 3. Amendment The covenants and restrictions of this Declaration shall run with and bind the land, for a term of twenty (20) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amended during the first twenty (20) year period by an instrument signed by not less than a simple majority (more than 50%) of the voting members. However, the percentage of voting power necessary to amend a specific clause or provision shall not be less than the prescribed or affirmative votes required for action to be taken under that specific clause. Any amendment must be recorded. Section 4. Annexation Additional residential property and Common Area may be annexed to the Properties with the consent of one hundred percent (100%) of the voting members. -8-

11 Signature Page IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. PATRICK A. CONDON 2525 E 53rd Apt B 103 Spokane, WA MARY E. CONLEY Little Spokane Drive Colbert, WA JOHN J. CONDON 2923 S. Howard Spokane, WA MARY E. CONLEY Little Spokane Drive Colbert W A In Trust for the Family of KATHLEEN GREEN BRIDGET D. BROCKMEYER 6981 E. Glencairn Court Hayden Lake, ID CHARLES E. WINGARD 3550 Riverview Drive Pacific City, OR WILLIAM J. CONDON Jr., et al East 19 th Street Spokane, WA DANIEL H. CONDON, et al. West 1415 Viewmont Road Spokane, WA