Clearview HOA

AMENDED AND RESTATED
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR
CLEARVIEW of TALENT – A CLASS I PLANNED COMMUNITY

THIS AMENDED AND RESTATED DECLARATION is adopted this (add date), by CLEARVIEW of TALENT RESIDENTIAL ASSOCIATION, an Oregon nonprofit mutual benefit corporation.

RECITALS

1. CLEARVIEW of TALENT is a Class I Planned Community on certain real property located in the City of Talent, Jackson County, Oregon, described on the attached Exhibit “A” (hereinafter the “Property”), known as CLEARVIEW of TALENT, comprised of lots for family homes and mixed-use commercial and residential “live-work” units, together with permanent roadways, utility installations, and open spaces for the benefit of the entire community.
2. On February 9, 2010, the Declaration of Covenants, Conditions, & Restrictions for CLEARVIEW OF TALENT, was recorded as Jackson County Official Records Doc. #2010-00601 (“CLEARVIEW OF TALENT’S Declaration” or “the Declaration”).
3. On July 7, 2014, the Declarant recorded the first Amendment to CLEARVIEW of TALENT’S Declaration Jackson County Official Records Doc. #2014-016986, making certain amendments to Section 1.2 and Section 3.3 of CLEARVIEW of TALENT’S Declaration of CCRs.
4. On July 21, 2015, the Declarant recorded the second Amendment to CLEARVIEW of TALENT’S Declaration of CCRs recorded as Jackson County Official Records Doc. #2015-024576, making certain additional amendments to Section 1.2 and Section 3.3 of CLEARVIEW of TALENT’S Declaration of CCRs.
5. On April 11, 2016, the Declarant recorded the third Amendment to CLEARVIEW of TALENT’S Declaration of CCRs as Jackson County Official Records Doc. #2016-010652, making certain amendments to Section 13.5 and Section 13.6 of CLEARVIEW OF TALENT’S Declaration of CCRs.
6. Thereafter, the Declarant convened the initial meeting of CLEARVIEW OF TALENT RESIDENTIAL ASSOCIATION (hereafter, the “Association”), and at that time transferred administrative responsibility and control of CLEARVIEW OF TALENT to the Association.
7. Like the Declarant, the Association desires to provide for the preservation and enhancement of the property values, amenities, and opportunities in the Property and for the maintenance of the Property and improvements thereon, and to this end subjects the Property to the covenants, restrictions, easements, charges, and liens hereinafter set forth, each of which is for the benefit of the Property and each owner of any lot thereon. The Association is assigned the powers of owning, maintaining, and administering the Association’s Common Property and facilities; administering and enforcing the provisions set forth in the Declaration of CCRs, as amended; collecting and disbursing the assessments and charges as set forth in the Declaration ; and promoting the recreation, health, safety, and welfare of the occupants of the planned community.

ARTICLE 1 – DEFINITIONS

1.1 “Commercial Association” shall mean the CLEARVIEW of TALENT COMMERCIAL ASSOCIATION, an Oregon mutual-benefit, nonprofit corporation, comprised of Members owning Lots intended for commercial or mixed residential and commercial use. “Commercial Board” shall mean the board of directors of the Commercial Association. “Commercial Articles” shall mean the Articles of Incorporation for the Commercial Association; “Commercial Bylaws” shall mean the Bylaws of the Commercial Association; and “Commercial Rules and Regulations” shall mean rules and regulations promulgated by the Commercial Association. “Commercial Unit” shall mean any portion of a structure situated upon the Property designated, at least in part, for commercial use, including mixed-use “live-work” structures.

1.2 “Common Property” shall mean those tracts of land shown on the recorded Phase 1 plat of the Property as CP “A”, “B”, “C”, “E”, and “G” and CP “D1” on the recorded Phase VII and VIII Plat, including any improvements thereon, which are intended to be devoted to the common use and enjoyment of the members of the Association (the “Members”), as more particularly defined herein, and which land has been conveyed to the Residential Association.

1.3 “Declaration” shall mean the covenants, conditions, restrictions, and all other provisions set forth in the 2010 Declaration of Covenants, Conditions, and Restrictions for the Property, as thereafter amended by the 2014, 2015, and 2016, and this 2023 Amended and Restated Declaration. The Declaration shall apply to all Residential Members.

1.4 “Living Unit” shall mean any portion of a structure situated upon the Property designed and intended for single family residential purposes, including any attached townhouse-style homes.

1.5 “Lot” shall refer to Lots 1 through 64 on the Property, as set forth in the General Plan of Development; provided, however, that no Lot shall be considered a legal tax lot unless and until one or more supplemental plats subdividing the property designated as “Future Phase” on the Plat, is or are recorded in the Official Records of Jackson County, Oregon. “Lot” shall not include any lot depicted on any plat of the Property, which is designated for use as Common Property on any plat or Declaration of the Property.

1.6 “Member” shall mean the record owner, whether one or more persons or entities, of the fee simple title to any Lot, or a purchaser in possession under a land sale contract. None of the foregoing shall include persons or entities who hold an interest in any Lot or condominium unit merely as security for the performance of an obligation.

1.7 “;Planned Community”; means CLEARVIEW of TALENT, a Class I Planned Community under the provisions of ORS Chapter 94, known as the Oregon Planned Community Act.

1.8 “Residential Association” or “Association” shall mean the CLEARVIEW of TALENT RESIDENTIAL ASSOCIATION, an Oregon mutual-benefit, nonprofit corporation, comprised of 54 Members owning lots intended exclusively for residential use. “Residential Board” shall mean the board of directors of the Residential Association. “Residential Articles” shall mean the Articles of Incorporation for the Residential Association; “Residential Bylaws” shall mean the Bylaws of the Residential Association; and “Residential Rules and Regulations” shall mean rules and regulations promulgated by the Residential Association.

ARTICLE 2 – PROPERTY SUBJECT TO THIS DECLARATION

The real property which is subject to this Declaration is described on the attached Exhibit “A,” and consists of Lots and Common Property.

ARTICLE 3 – GENERAL PLAN OF DEVELOPMENT

3.1 General Description of Project

The fifty-four (54) Lots are reserved exclusively for residential use. Each Lot, including each Living Unit, and condominium unit thereon, if any, shall be served by the City of Talent, Oregon services, including public water, sewer, storm drainage, natural gas, electric service, telephone, and cable television service, where each is applicable.

3.2 Ownership of Common Property

The Residential Association shall hold title to all Common Property in the Planned Community. The legal description of the Common Property of the Associations is set forth on Exhibit “B” attached hereto. In the event that the Common Property is assessed for property tax purposes separately from the Lots, the Residential Board shall assess the relevant Members for their share of such taxes and to pay such property taxes on a current basis.

3.3 Improvements in the Common Property

The Common Property shall consist of those portions of the Property designated on the recorded Phase 1 of the Property as CP “A”, “B”, “C”, “E”, “G” and CP “D1” on the recorded Phase VII and VIII Plat. All roads on the Property, namely, Clearview Parkway, Wintersage Circle, and Poppy Bay Place, including all alleys, are public, and shall not be considered Common Property. The parking lots serving the Commercial Lots are located on such Commercial Lots, and are also not considered Common Property of the Planned Community.

ARTICLE 4 – USE RESTRICTIONS; ARCHITECTURAL CONTROLS AND MAINTENANCE RESPONSIBILITIES

4.1 Governmental Restrictions

All uses, whether commercial or residential, including occupancy, construction, and other activities conducted on any Lot, shall conform with and be subject to applicable zoning, use restrictions, setback requirements, and construction and building codes of all local, state, and federal public authorities.

4.2 Restrictions on Use

All restrictions on the use of each Lot, Living Unit or condominium unit shall be governed by this Declaration, the Bylaws of the Association, and the Rules and Regulations promulgated by the Board of Directors.

4.3 Division

No Member shall have the right to divide any Lot.

4.4 Use

Lots 11-64 shall be used for residential purposes only,

4.5 Common Property

No Member shall construct or place any structure, material, planting, equipment, or any object of any kind on any portion of the Common Property, unless granted written permission by the Board of Directors, and then only in strict compliance with such authorization. Owners of Residential Lots shall be entitled to use and enjoy all Common Property. Owners of Commercial Lots shall be entitled to use and enjoy only the Common Property park, designated on the plat as Common Property “A.”

4.6 Associations’ Maintenance Responsibilities

  4.6.1 Residential Association
The Residential Association shall perform all maintenance, planting, pruning, mowing, and cleaning of all fencing, lawns, and landscaping on all Residential Lots and on all Common Property, with the exception of any landscaping and lawns on a Member’s Lot which is enclosed by fencing, and which constitutes a Member’s private rear or side yard. The Residential Association shall also be responsible for the repair and replacement of all drip irrigation and sprinkling systems (provided the homeowner grants access to the irrigation controller), all street lighting, and all sidewalks located on Residential Lots, and for sanitary sewer lines and water service lines from the connection with the main service line owned and maintained by the service provider to a point within or under a Member’s Living Unit. The Residential Association shall assess the Commercial Association for 1/3 of the cost of maintaining, repairing, and replacing any landscaping and improvements located on the Common Property park, designated on the plat BS Common Property “A.”

  4.6.2 Member Responsibilities

Each Member in title to a Living Unit shall perform all maintenance, repair, and replacement of the exterior of each Member’s Living Unit or condominium unit, if any, and of sanitary sewer lines and water service lines within and under each Member’s Living Unit or condominium unit. Each Member shall be responsible for the cleaning, maintenance, repair, and replacement of the Member’s private rear and side yard, and the interior elements of the Member’s Living Unit or condominium unit, including all mechanical, electrical, and plumbing systems located within the Living Unit’s boundaries. Each above element shall be kept, at all times, clean and in good repair, and every Member shall promptly perform all maintenance, repair, and replacement responsibilities to prevent any negative effects on other Living Units and Common Property; and every Member shall be responsible for the damages and liabilities that his or her failure to maintain and repair may cause, including, but not limited to, damage caused by plugged toilets and bath drains, overloaded electrical outlets, and clothes washer and dishwasher overflow.

In addition thereto, each Member shall be personally responsible for mold, rust, dry rot, and water infiltration, to the extent that reasonable maintenance or other act by the Member could have prevented or mitigated such damage to the Living Unit, another Member’s Unit, or to the Common Property. In accordance with same, all repairs of internal installations of each Living Unit, such as water, HVAC, lights, gas, power, sewage, telephones, air conditioners, heaters, sanitary installations, doors, windows, lamps and all other installations, accessories, and appliances belonging to the Living Unit area, shall be the sole responsibility of the Lot owner. A Member must reimburse the Association for any and all expenditures incurred in the event the Association has repaired, maintained, or replaced any Common Property or other facility that was damaged through such Member’s fault, and that is not otherwise covered by insurance policies carried by the Member or the Association for the Member’s and the Association’s benefit.

The Association may make repairs, replacements, and maintenance that a Member is obligated to make and that such Member does not make within a reasonable time. The Association shall indemnify their agents, employees, and other representatives from any and all liability to any Member incurred by reason of any reasonable exercise of the right of entry afforded in this Declaration or in the Bylaws to effect emergency repairs. The Association shall have no liability to a Member for any use of its right of entry or right to make emergency repairs, if the Association has reasonable cause to believe that such action is required. Each Member shall be deemed to have consented to having such repairs done to such Member’s Living Unit by the Association. A Member will be specially assessed and must reimburse the Association for all such repair, replacement, and maintenance costs except to the extent covered by insurance, including any legal or collection costs incurred by the Association to collect the costs of such repairs, replacement, and maintenance. All such sums of money will bear interest from the due date thereof at the default rate provided in the Declaration and may otherwise be collected in the same manner as regular common expense assessments. If repairs are required due to an emergency, and the Association does not immediately commence the required replacement, maintenance, or repairs, the Member may do so, and such Member will have all the rights of the Association described in this Section.

4.7 Leases/Rentals

Each Member shall have the right to lease or rent his or her Lot, and any constructed improvements thereon on a monthly basis, or for such other period of time as is authorized or required by this Declaration, or local, state, and federal laws, and as restricted by the rules and regulations governing the Lot. A Member may not rent the Member’s Lot without first giving notice to the Association of the dates during which the Lot is or will be rented, the person(s) to whom the Lot will be rented, and their email address, provided however, that the right to notice shall not be construed as requiring the Association to review or otherwise approve of the rental agreement or the tenant(s). No sub-rentals or any other form of occupancy right other than a direct rental from a Member are allowed. All such leases or rental agreements shall be in writing and shall be deemed to provide that their terms shall be subject in all respects to the provisions of this Declaration, the relevant Bylaws, and the Rules and Regulations of the Association, and that any failure by the lessee or renter to comply with the provisions of such documents shall constitute a default under said lease or rental agreement. The lessee’s or renter’s use and enjoyment of the Common Property under such lease or rental agreement shall be subject to suspension by the Board for any of the causes set forth elsewhere in this Declaration, including, without limitation, the nonpayment of assessments with respect to the Lot occupied by the lessee or renter. If any Member rents a Living Unit to any person or entity who, during the term of such rental, violates any of the provisions of this Declaration, the relevant Bylaws, or any Rules or Regulations established by the Association, then the Board may order that no such Unit be rented to such person or entity in the future. Such restriction is for the overall benefit of the Property and is intended to maintain quality in rental activities, and to restrict traffic, excessive numbers of occupants, and the excessive use of the property by persons other than the Member. Any lessee or renter occupying a Residential Living Unit shall be entitled to the use and enjoyment of the Common Property. Lessees or renters making use of a Commercial Unit shall be entitled to the use and enjoyment of only the Common Property park, designated on the Plat as Common Property “A.” A Member may not sever the right to such enjoyment of the Common Property, as defined herein, from the right to occupy a Lot and the improvements thereon, by means of a lease, rental agreement, or otherwise.

4.8 Architectural Review Board

  4.8.1 Composition

The Board of Directors shall appoint and replace, when necessary, an Architectural Review Board “ARB”), comprised of no less than three persons. The Association shall annually elect two (2) members of the ARB, and the Commercial Association shall annually elect one (1) member of the ARB.

  4.8.2 Duties

It shall be the duty of the ARB to regulate the external design, appearance, location, and maintenance of all the Property, including all Residential Lots, and of all improvements thereon, whether on a Lot or Common Property, and to regulate use of such Property as described in this Declaration. The ARB shall adopt general rules to implement the purposes and interpret the covenants of this Article, including, but not limited to, rules not less restrictive than those contained in this Declaration, if any, to regulate commercial uses, animals and tenants, storage and use of vehicles and recreational vehicles, storage and use of machinery, use of outdoor drying lines, trash containers, planting, maintenance, and removal of vegetation of the Property.

(n.b. Note, revision is needed here: in Oregon, outdoor drying lines are legal: https://soapboxie.com/social-issues/Right-to-Dry-States-Clotheslines-and-Green-Initiatives.)

  4.8.3 Approval Required

No building, fence, wall, sign, or other structure of any type shall be erected upon the Property, nor shall any exterior addition to, change in, painting or staining of, or alteration to any Unit, outbuilding, fence, wall, sign, or other structure on the Property of any type be made until the plans and specifications showing the nature, kind, shape, height, materials, color, and location of the same shall have been submitted to and approved in writing by the ARB as to the harmony of external design, materials, color, and location in relation to surrounding structures and topography. The Board reserves the right to correct any alteration not approved by the ARB. The reasonable cost necessary for such repairs shall become a special assessment upon the Lot of the Member who caused or is otherwise responsible for such alteration.

  4.8.4 Procedure

A Member wishing to take any action requiring approval under this Article shall give notice of such proposed action to the ARB, together with complete plans and specifications therefor. The ARB shall meet to review the Member’s request within 20 days of receipt and shall render a decision by the vote of a majority of ARB board members present within 30 days of receipt. Interested Members shall have an opportunity to comment on the request at all such meetings, which shall be open to all Members. If the ARB fails to render a written decision within the time allowed, the request shall be deemed to be approved.

  4.8.5 Appeal

The decision of the ARB under this Article (including any failure to approve or disapprove within the time allowed) shall be subject to appeal by any interested Member as set forth in this Article. Upon the payment of a reasonable fee established by the ARB to cover administrative costs, any interested Member may appeal the decision of the ARB to the Association Membership. The appeal shall be made in writing and shall be filed with the Secretary of the Association within 30 days of the decision of the ARB, The Association’s board of directors shall call a special or ballot meeting to be held after 10 days notice and within 30 days after the appeal has been filed with the secretary of the Association. It shall require a vote of at least a majority of the votes of the Association Members to reverse or modify the decision of the ARB.

  4.9 Party Walls

    4.9.1 General Rules of Law to Apply

Each wall dividing attached townhouse-style, zero lot line Living Units, and placed upon the dividing line between the Lots, which was built as a part of the original construction of the Units or as part of reconstruction pursuant to this Declaration, shall constitute a “party wall,” and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls shall apply thereto,

    4.9.2 Sharing of Repair and Maintenance

The cost of repair and maintenance of a party wall shall be shared equally by the Members whose Living Units are divided by such wall.

    4.9.3 Destruction by Fire or Other Casualty; Weatherproofing

If a party wall is destroyed or damaged by fire or other casualty, the provisions of this Declaration shall apply with regard to repair or reconstruction of such wall. Notwithstanding any other provision of this Article, a Member who by his or her negligent or willful act causes the party wall to be exposed to the elements, shall bear the whole cost of furnishing the necessary protection against such elements.

    4.9.4 Right to Contribution Runs With Land

The right of any Member to contribution from any other Member under this Article shall be appurtenant to the land and shall pass to such Member’s successors in title.

    4.9.5 Arbitration

in the event of any dispute arising concerning a party wall, or concerning the obligations of the Members or either Association pursuant to the provisions of this Article, each party shall choose an arbitrator, and the arbitrators so chosen shall choose one additional arbitrator, and the dispute shall be resolved by a majority of all the arbitrators,

ARTICLE 5 – ASSOCIATION MEMBERSHIP AND VOTING RIGHTS

Each owner of a Residential Lot shall be a mandatory member of the Residential Association. Voting rights in the Association shall be as set forth in the Bylaws governing same.

ARTICLE 6 – DECLARANT CONTROL

The Declarant previously convened the initial turnover meeting of the Association, and at that time relinquished all Declarant control provided in the 2010 Declaration, as provided in the Bylaws.

ARTICLE 7 – COMMON PROPERTY

  7.1 Obligations of the Residential Association

Subject to the rights of Members set forth in this Declaration, the Residential Association shall be individually responsible for the exclusive management, control, maintenance, and repair of the Common Property of the Planned Community, including any and all improvements thereon as set forth in the Bylaws of the Residential Association.

  7.2 Members’ Easement of Enjoyment

Subject to the provisions of this Declaration, the Bylaws, and Rules and Regulations of the Association, each Residential Member shall have a nonexclusive right and easement of enjoyment in and to the Common Property. In addition, each Member of the CLEARVIEW of TALENT COMMERCIAL ASSOCIATION shall have a nonexclusive right and easement of enjoyment in and to the Common Property park, designated on the plat as Common Property “A.” The easements described in this section shall be considered appurtenant to, and shall pass with the title to, each Lot, whether Residential or Commercial.

  7.3 Extent of Members’ Easements

The Members’ easements of enjoyment created hereby shall be subject to the following:

    7.3.1 Subject to Rules and Fees

The Residential Association shall have the right to establish reasonable rules and regulations, and to charge reasonable assessments and fees for capital expenditures on the Common Property tracts, for the maintenance and upkeep of the Common Property, and for the payment of all Residential Association expenses.

    7.3.2 Suspension of Member’s Right

The Residential Association may suspend the right of any Member or any occupant of a Lot, whether Residential or Commercial, to use the Common Property and facilities thereon for any period during which any assessment against such Member or occupant’s Lot remains unpaid for more than 30 days after notice of such nonpayment; provided, however, that no such suspension pursuant to this subsection shall deprive a Member of access to his or her Lot.

    7.3.3 Sale of Common Property

The Residential Association shall not have the authority to sell, dedicate, or otherwise transfer any portion of the Common Property, or create a security interest therein. All Common Property of the Planned Community shall retain its classification as such, in perpetuity, except as is otherwise authorized by the Members and by the City of Talent, Oregon.

  7.4 Declaration of Use

Any Member may delegate his or her right of enjoyment to the Common Property to the Member’s family and tenants, and to a reasonable number of guests, subject to rules and regulations as may be established by the Association.

  7.5 Damage or Destruction of Common Property by Member

In the event any Common Property is damaged or destroyed by a Member or any of his or her guests, tenants, licensees, agents, or members of his or her family, in a manner that would subject such Member to liability for such damage under Oregon law, such Member does hereby authorize the Residential Association to repair such damage. The Residential Association shall repair damage in a good and workmanlike manner as originally constituted or as the area may be modified or altered subsequently by the said Association in the discretion of the said Association, The reasonable cost necessary for such repairs shall become a special assessment upon the Lot of the Member who caused or is otherwise responsible for such damage.

ARTICLE 8 – COVENANTS FOR MAINTENANCE ASSESSMENTS/SPECIAL ASSESSMENTS, AND COMMON PROFITS

  8.1 Creation of the Lien and Personal Obligation of Assessments.

The Declarant hereby covenants, and each Member of any Lot or condominium unit located on a Lot, by acceptance of a deed thereof, whether or not it shall be so expressed in such deed, is deemed to covenant and agrees to pay the relevant Association, (1) regular assessments or charges for common expenses, and (2) special assessments as provided herein. All assessments, together with interest thereon at the rate established from time to time by resolution of the Boards of Directors and together with all costs, fees, charges, and fines allowed by law, shall be a lien and charge on the land and shall be a continuing lien upon the Lot or condominium unit, if any, against which each such assessment is made, Such lien shall exist and be executed, recorded, and foreclosed in the manner provided by law.

  8.2 General Assessments

8.2.1 Purpose of Assessments. The assessments levied under this Article shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare of the Members, and for the improvement and maintenance of such Property, including payment of premiums for insurance of the Association, to fund replacement reserves for those items of which the Association has maintenance responsibility, and for payment of any common operating expenses such as landscaping, maintenance, Association water, sewer, power, garbage collection, management services, legal and accounting services, and the like. Neither the Association, nor any assessments of the Members, shall be used to engage in lobbying or to exert political influence.

    8.2.2 Basis for Assessment. The assessments shall include the following items:

1. Expenses of administration;
2. Expenses of maintenance, repair, and replacement of all improvements and buildings on the Common Property;
3. Expenses of maintenance, repair, and replacement of those portions of the Lots for which each Association has responsibility, as more particularly set forth herein;
4. Any deficit in common expenses for any prior period;
5. Utilities for the Common Property and other utilities with a common meter or commonly billed, such as water and sewer;
6. The cost of any professional management, bookkeeping or attorney services desired by the Boards of Directors;
7. Any other items properly chargeable as an expense of the Associations; and
8. Reserve items as more particularly set forth in the reserve study, prepared by Declarant, and as updated and amended by Boards from time to time.

    8.2.3 Method of Assessment

All initial, general, and special assessments shall be evenly allocated among the Lots by the Board. In the event that a regular or special assessment shall confer disproportionate benefit among the Members, the Board of Directors of the Association shall have the authority to allocate said assessment appropriately according to relative benefit. If the Board determines that any common expenses are the fault of any Member, it may assess the expense exclusively against the Lot of that Member. As described hereinabove, all assessments associated with the Common Property park, designated as Common Property “A” on the plat, shall be paid 1/3 by the Commercial Association and 2/3 by the Residential Association.

The assessment amount shall be established by the Board of Directors of the Association (the “Board”) and may be modified at any time, provided each Member receives 30 days written notice of same, and provided that the assessments shall be sufficient to meet the obligations imposed by the Declaration and the relevant Bylaws. The budgets shall be presented to the Association and may be amended by a majority of the votes of the Members of the Association. The Board shall each set the date(s) such assessment shall become due. The Board may provide for collection of assessments annually, or in monthly, quarterly, or semi-annual installments; provided, however, upon the default in the payment of any one or more installments, the entire balance of such assessment may be accelerated at the option of the Board and be declared due and payable in full, together with interest and attorney fees and costs as hereinafter provided.

Notwithstanding any other provisions of this section, the general assessments of the Association may not be increased by more than 20% in any one year without approval of a majority of the Association’s Members, at a meeting at which a quorum exists, or a majority of the votes of all the relevant class of Members, if the vote is taken by written ballot.

  8.3 Reserve Studies

The Board shall conduct an annual update to the Reserve Studies, to determine the reserve account requirements, and may adjust the amount of payments as indicated by the study or update and provide for other reserve items that the Board may deem appropriate. The study shall include identification of all items for which reserves are required to be established, their estimated remaining useful life, the estimated cost of maintenance, repair, and replacement of each item at the end of its useful life, and a 30-year plan to meet that maintenance, repair, and replacement schedule.

  8.4 Reserve Accounts

The assessment against each Lot shall include an amount allocated to a reserve account established for the purpose of funding replacements of those elements or items that will normally require replacement, in whole or in part, in more than 3 and less than 30 years, The account shall be in the name of the Residential Association, and shall be separated from other funds, it shall be used only for the purposes for which the reserves have been established. The account shall also fund other items, whether or not involving Common Property, if the Association has responsibility to maintain the items, unless they could reasonably be funded from operating assessments. Amounts assessed with respect to reserves shall take into account the estimated remaining life of the items for which the reserve is created and the current replacement cost of such items based on the results of the Reserve Studies described herein. The reserve account need not include reserves for those items for which one or more Members are responsible for maintenance and replacement under the provisions of this Declaration or the relevant Bylaws. The assessments for Residential Members, pursuant to this section, shall accrue from the date of conveyance of the Residential Lot. The Boards may borrow funds from the reserve accounts to meet high demands on the regular operating funds or to meet other unexpected increases in expenses. The Boards shall repay such funds according to a written payment plan adopted no later than the date the budget is adopted for the following year, said plan providing for repayment within a reasonable period. The Association may, on an annual basis, by a unanimous vote of all Association Members, elect not to fund the reserve account. By a vote of at least 75% of the Association’s Members, the Association may also elect to reduce or increase future assessments for the account.

  8.5 Special Assessments

The Declarant shall have the power to levy special assessments against Members of the Board’s Association, in the following manner, for the following purposes:

1. To correct a deficit in the operating budget;
2. To collect amounts due to an Association from a Member for breach of the Member’s obligations under the Declaration, the Bylaws, or any relevant Rules and Regulations;
3. To make repairs or renovations to the Common Property anchor to those portions of the Lots for which the Association has responsibility for maintenance and replacement, if sufficient funds are not available from the operating budget or replacement reserve accounts; and
4. To make capital acquisitions, additions, or improvements, provided they are approved by vote of at least 50% of the Members.

  8.6 Effect of Non-Payment of Assessments

Remedies of the Associations. Any assessment unpaid within 20 days of its due date shall incur a late fee of 10% of the delinquent installment, in addition to any other remedies provided by law, the Association may bring an action at law against a Member personally obligated to pay the same or foreclose a lien upon the Member’s Lot. No such action or judgment entered therein shall be a waiver of the lien of the Association. The Board shall have authority to compromise overdue assessment claims if it benefits the Association. No Member may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Property or abandonment of his or her Lot or condominium unit. A Member may not claim to offset an assessment for failure of the Association to perform that Association’s obligations.

  8.7 Subordination of the Lien to Mortgages

1. The lien with respect to any assessment provided for herein shall be prior to any homestead exemption and all other liens and encumbrances on a Lot, except:
2. A lien for real estate taxes and other governmental assessments or charges; and
3. A first mortgage or trust deed of record.

Sale or transfer of any Lot shall not affect the assessment lien.

  8.8 Common Expenses and Profits

Profits arising from any operation or from the sale of any Association asset shall be shared among the Association’s Members in proportion to their liability for payment of assessments, as provided in the Association budget, prepared herein, Common expenses shall be similarly allocated.

ARTICLE 9 – DAMAGE AND DESTRUCTION

  9.1 Insurance Proceeds Sufficient to Cover Loss

In case of fire, casualty, or any other damage and destruction to the Common Property, the insurance proceeds of the Association’s insurance policy, if sufficient to reconstruct the damaged or destroyed improvements, shall be applied to such reconstruction, which shall commence within 120 days of such damage, or as soon thereafter as proceeds are available. Reconstruction of the damaged or destroyed improvements, as used in this section, means restoring the improvements to substantially the same condition in which they existed prior to the fire, casualty or disaster. Such reconstruction shall be accomplished under the direction of the Board of Directors.

  9.2 Insurance Proceeds Insufficient to Cover Loss

If the insurance proceeds are insufficient to reconstruct the damaged or destroyed improvements, the damage to, or destruction of, such improvements shall be promptly repaired and restored under supervision of the Board of Directors, using the proceeds of insurance, if any, on the improvements for that purpose and all the Members shall be liable for assessment for any deficiency for such reconstruction, such deficiency to take into consideration as the Member’s contribution any individual policy insurance proceeds provided by such Member. Such reconstruction shall commence within 120 days of such damage, or as soon thereafter as proceeds are available

ARTICLE 10 – CONDEMNATION OF COMMON PROPERTY

In the event that all or any portion of the Common Property is appropriated as the result of condemnation or threat or imminence thereof, the following rules and guidelines shall apply.

  10.1 Representation by Association

The Board of Directors of the Residential Association shall have the sole authority, right, and duty to represent the Members for the purpose of negotiating and contesting, if it deems so doing to be necessary or appropriate, any condemnation award offered by the condemning authority in question and may authorize expenditures and assessments to retain adequate counsel or other experts for such purposes.

  10.2 Allocation of Condemnation Award

The Board of the Residential Association shall allocate and distribute any condemnation award received by it with respect to the Common Property, to its Members in proportion to the diminution in fair market value incurred by them with respect to their Lots and improvements as a result of said condemnation.

  10.3 Arbitration

In the event of any controversy by, among, or between any Member or Members and the Board of Directors arising under this section, each of the disputing parties shall choose one (1) arbitrator, and such arbitrators shall choose one (1) additional arbitrator, The three (3) arbitrators shall resolve the controversy by majority vote and said decision shall be final, binding, and unappealable upon the disputing parties. Any action or decision of the Board of Directors pursuant to this section shall carry a rebuttable presumption of correctness for purposes of arbitration pursuant to this section. The disputing parties each shall pay all the fees and expenses of the arbitrator designated by each of them, and shall pay equally all fees and expenses of the third arbitrator. The disputing parties each shall pay their own expenses in connection with the arbitration.

  10.4 Retention of Rights

No provision of this section shall be construed as negating the right of the individual Members to such incidental relief as the law may provide as a result of the condemnation of the Common Property.

ARTICLE 11 – DISCLOSURES; DISCLAIMERS

  11.1 Vegetation

Grass, trees, and other vegetation, if any, even if remaining at close of purchase and occupancy of a particular Lot or Living Unit, may not survive, and may need to be replaced at the sole expense of the Association or the Member. No warranty of quality or survival is given by Declarant with respect to grass, trees, and other vegetation. Further, Members are advised that native trees are often subject to governmental regulation and may not necessarily be removed at will.

  11.2 Sound Transmission

It is normal to experience some transmission of sound between Lots and Living Units. Declarant makes no warranty regarding soundproofing, transmission of sound between Living Units, and/or levels or adequacy of sound insulation, and that transmission of sound between Living Units shall not be considered a construction defect. Each Member in title to a Lot attests that the Member has had ample opportunity to discern to the Member’s satisfaction the level of sound and sound transmission on the Lot or in the Living Unit at various times of day, that sound levels may differ over time depending on a variety of factors, and that the Member accepts current and potential future sound levels.

  11.3 Light, Air, and View

Declarant made no representation or warranty regarding the existence of or changes in the level of light, air, or view benefitting or burdening the Lots or Living Units specifically or the Planned Community generally. Declarant will have no liability if the current level of light, air, or view affecting the Lots or Living Units changes due to future developments.

  11.4 Mold

Mold is a commonly occurring natural substance that can grow anywhere water infiltration and humidity exist. There is controversy regarding whether and to what extent certain types of mold are toxic to humans. Declarant will not be liable for any damage or bodily injury suffered by a Member or the occupants or guests in a Living Unit resulting from or related to the presence of mold. Members are advised to inspect for mold or any other dangerous condition on a regular basis. Members should take prompt action to remedy underlying water infiltration and humid conditions that are causing or have the potential to cause mold and thereby avoid any possibility of damage or injury from long-term exposure to mold.

  11.5 Utility Failure

Except to the extent covered by insurance obtained by the Board pursuant to this Declaration or the Bylaws, neither the Association nor the Board shall be liable for: (i) any failure of any utility or other service to be obtained and paid for by the Board; (ii) injury or damage to person or property caused by the elements, or resulting from electricity, noise, smoke, water, rain or other liquid, dust, or sand which may leak or flow from the outside or from any parts of Unit structures, or from any of its pipes, drains, conduits, appliances, or equipment, or from any other place; or (iii) inconvenience or discomfort resulting from any action taken to comply with any law, ordinance, or orders of a governmental authority. No diminution or abatement of common expense assessments shall be claimed or allowed for any such utility or service failure, or for such injury or damage, or for inconvenience or discomfort.

ARTICLE 12 – EASEMENTS

  12.1 Associations’ Easements

The Association shall have a blanket easement with respect to all Lots on the Property for the purpose of maintaining, repairing, and replacing utility and irrigation lines and facilities located on the Lots and carrying out the Associations’ responsibilities described herein. The easement granted in this section shall be perpetual and shall run with the land.

  12.2 Declarant’s Easements

The Association hereby reserves to itself and its designees a blanket easement over, upon, through, and under the Property, including, without limitation, all Lots and Common Properties, for all purposes reasonably required in carrying out and maintain the General Plan of Development including, without limitation, ingress and egress, the construction, alteration, completion, and decoration of Units or improvements developed on the Property, the installation, maintenance, repair, and replacement of all utility and service lines and systems serving Units, and the sale of Lots and Units. The easement herein reserved shall include the right to store materials on the Common Property at such places and for such periods as may be reasonably required to effect the purposes for which this easement is reserved. The easement shall be perpetual and shall run with the land and shall be freely assignable by the Declarant.

  12.3 Member’s Easements

The Association hereby grants to each Member an easement over the Common Property and over other Lots for roof overhangs, driveways, fences. HVAC units, and other minor encroachments into the Common Property or other Lots arising from the Unit and its accessory components having not been constructed, or not having been reconstructed, precisely within the lot line. The Declarant further grants to each Member, an easement for private and public utility lines, irrigation lines, installations, junction boxes, and meters, over, under, upon, through, and across all other Lots, Living Units, and the Common Property. The easements created by this section shall be non-exclusive and perpetual, and shall run with the land.

  12.4 Private Drive Access

Subject to the provisions of this Declaration, the Owners of 100 Poppy Bay, 108 Poppy Bay, and 116 Poppy Bay shall each have a nonexclusive right and easement of enjoyment (including Ingress and egress) in and to every part of the private driveway across Common Property “DI”; as shown on the final plat serving lots 52, 53 and 54, which shall be appurtenant to and shall pass with the title to each respective lot. Said driveway shall not be blocked by fencing or other obstruction. The Owners of 100 Poppy Bay, 108 Poppy Bay, and 116 Poppy Bay shall have the sole responsibility for the maintenance of the entire driveway and shall share equally in the cost of periodic maintenance and necessary repairs of the entire driveway.

  12.5 Private Drive Repairs

Maintenance and repair of driveway access to 100 Poppy Bay, 108 Poppy Bay, and 116 Poppy Bay shall be performed on a prompt, diligent and regular basis in accordance with the generally accepted street and road maintenance standards then in use by the City of Talent, Oregon, including but not limited to prompt patching or filling of damage to the pavement and resurfacing as needed. If an Owner of 100 Poppy Bay, 108 Poppy Bay, or 116 Poppy Bay fails to perform its respective share of any such necessary maintenance and repairs as required, the other parties, upon thirty (30) days prior written notice, may cause such work to be performed with a right of reimbursement for all sums necessarily and properly expended to remedy such failure.

ARTICLE 13 – GENERAL PROVISIONS

  13.1 Enforcement

The Board, the Association, and the Members within the Property or any mortgagee on any Lot shall have the right to enforce all the covenants, conditions, restrictions, reservations, easements, liens, and charges now or hereinafter imposed by any of the provisions of this Declaration as may pertain specifically to such parties or Members by any proceeding at law or in equity. Failure by the Board, the Association or by a Member or mortgagee to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of their right to do so thereafter. In the event suit or action is commenced to enforce the terms and provisions of this Declaration, the prevailing party shall be entitled to its attorney fees and costs in such suit or action, to be fixed by the trial court, and in the event of an appeal, the cost of the appeal, together with reasonable attorney fees, to be set by the appellate court. In addition thereto, the Board and the Association shall be entitled to their reasonable attorney fees incurred in any enforcement activity taken to collect delinquent assessments, whether or not suit or action is filed. The same shall apply in any litigation brought by the Board, the Association, or a Member to enforce compliance with Rules and Regulations of the Planned Community.

  13.2 Severability

Invalidation of any one of these covenants or restrictions by judgment or court order shall not affect the other provisions hereof, and the same shall remain in full force and effect.

  13.3 Duration

The covenants, conditions, and restrictions of this Declaration shall run with and bind the land for a term of 35 years from the date of this Declaration being recorded, after which time they shall be automatically extended for successive periods of 10 years, unless rescinded by a vote of at least 90% of all Members of the Planned Community; provided however, amendments which do not constitute rescission of the Planned Community may be adopted as provided in Section 13.4 below.

  13.4 Non-Merger

This Declaration, including all easements and other rights and obligations set forth herein, is intended to survive merger at its creation, at the recording of the Partition Plat, and upon the sale to subsequent third parties, notwithstanding the concurrent ownership of all of the parcels described herein by the Declarant.

  13.5 Amendment

An amendment to the Declaration or recorded Plat may be proposed by a majority of either Board or by at least 30% of all Members of the Association. Except as otherwise provided herein, this Declaration or the recorded Plat may be amended at any time by an instrument approved by not less than a majority of the total votes of all Members of the Association that are eligible to vote. Any amendment must be executed and certified on behalf of the Association by the President and Secretary as being adopted in accordance with the Declaration and applicable law. It shall be acknowledged as for deeds and recorded as the Declaration is recorded. It shall be effective only upon recording; provided, however, that no amendment of this Declaration shall effect an amendment of the Residential Bylaws without compliance with the provisions of such documents, and the Oregon Non-Profit Corporation Act. Provided further, no amendment affecting any special right of the Declarant herein contained may be effected without the express written consent of the Declarant or its successors and assigns. Provided further, no amendment changing the boundaries or uses of any Lot, including rental restrictions and commercial uses, may be effected unless the owners of the affected Lots unanimously consent to the amendment.

  13.6 Rights of Mortgagees

Any holder of a first mortgage or equivalent lien on any Lot and/or the improvements located thereon, upon written request to the Board of Directors of the relevant Association, shall have the right to:

1. Receive timely written or emailed notice of meetings of the relevant Association;
2. Receive timely written or emailed notice of any proposed abandonment, termination, or contraction of this Planned Community;
3. Receive timely written or emailed notice of any material amendment of the Declaration or the Articles of Incorporation or Bylaws of the Associations;
4. Receive timely written or emailed notice of any decision by an Association to terminate professional management and to assume self-management of the Property, if the Association previously has retained professional management services;
5. Inspect the financial records and similar documents of the relevant Association at reasonable intervals during normal business hours;
6. Receive written or emailed notice of substantial damage or destruction of any Lot and/or the improvements thereon or the Common Property and/or any improvements thereon; and
7. Receive timely written or emailed notice of any condemnation or eminent domain proceeding affecting the Common Property or any portion thereof.

  13.7 Unilateral Amendment by Declarant

The Association may amend this Declaration in order to comply with the requirements of the Federal Housing Administration of the United States, the United States Department of Veterans Affairs, the Farmers Home Administration, the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Home Mortgage Loan Corporation, any department, bureau, board, commission or agency of the United States or the State of Oregon, or any other state in which the Lots are marketed and sold, or the City and County in which the project is situated, or any corporation wholly owned, directly or indirectly, by the United States or the State of Oregon, or such other state, the approval of which entity is required in order for it to insure, guarantee or provide financing in connection with the development of the Property and sale of Lots.

  13.8 HUD/VA Financing

If any Living Units are subject to financing through HUD or Federal VA programs, there shall be no annexation of additional properties, dedication of Common Property, or amendment of this Declaration without prior approval of said agency.

IN WITNESS WHEREOF, the undersigned have executed this instrument this (add date).

Clearview of Talent Residential Association, by:

(add name), President of Clearview of Talent Residential Association

(add name), Secretary of Clearview of Talent Residential Association

EXHIBIT A – LEGAL DESCRIPTION OF PLANNED COMMUNITY

THAT TRACT OF LAND DESCRIBED WITHIN INSTRUMENT NO. 02-68426 OF THE OFFICIAL RECORDS OF JACKSON COUNTY, OREGON, LYING SITUATE WITHIN THE SOUTHEAST QUARTER OF SECTION 23, TOWNSHIP 38 SOUTH, RANGE 1 WEST OF THE WILLAMETTE MERIDIAN IN JACKSON COUNTY, OREGON, MORE PARTICULARLY DESCRIBED AND BOUNDED AS FOLLOWS, TO WIT:

BEGINNING AT AN ALUMINUM CAPPED IRON PIN AT THE SOUTHWEST CORNER OF THAT TRACT OF LAND DESCRIBED WITHIN INSTRUMENT NO. 02-68426 OF THE OFFICIAL RECORDS OF JACKSON COUNTY, OREGON, SAID POINT BEING ALONG THE NORTHEASTERLY LINE OF RELOCATED PACIFIC HIGHWAY NO. 99; THENCE NORTH 00°12’16” EAST, LEAVING SAID NORTHEASTERLY LINE, A DISTANCE OF 358.13 FEET TO A 5/8 INCH IRON PIN (DEED RECORD NORTH 00°12’70” EAST, 358.12 FEET); THENCE NORTH 00°06’04” EAST 149.93 FEET TO A 5/8 INCH IRON PIN AT THE NORTHWEST CORNER OF SAID DESCRIBED TRACT (DEED RECORD NORTH 00°07’10” EAST, 150.00 FEET); THENCE SOUTH 89°53’31” EAST, ALONG THE SOUTH LINE OF DONATION LAND CLAIM NO. 59, A DISTANCE OF 344.25 FEET TO A BRASS CAP MONUMENT AT THE SOUTHEAST CORNER OF SAID CLAIM NO. 59 (DEED RECORD SOUTH 89°52’51r EAST, 344.11 FEET); THENCE NORTH 00°04’59” WEST, ALONG THE EAST LINE OF SAID CLAIM NO, 59, A DISTANCE OF 16.04 FEET TO A 5/8 INCH IRON PIN AT THE SOUTHWEST CORNER OF THAT TRACT OF LAND DESCRIBED WITHIN INSTRUMENT NO. 73-08666 OF SAID OFFICIAL RECORDS (DEED RECORD NORTH 00°05’20” WEST, 16.04 FEET); THENCE SOUTH 89°59’00” EAST, 274.46 FEET TO A 5/8 INCH IRON PIN AT THE SOUTHEAST CORNER OF SAID DESCRIBED TRACT (DEED RECORD SOUTH 89°’59’00” EAST, 274.45 FEET); THENCE SOUTH 00°04’07” EAST, 920.48 FEET TO A 5/8 INCH IRON PIN (DEED RECORD SOUTH 00°04’10” EAST, 920.50 FEET); THENCE SOUTH 89°44’10” WEST, 99.56 FEET TO A 5/8 INCH IRON PIN ON THE NORTHEASTERLY LINE OF RELOCATED PACIFIC HIGHWAY NO, 99 (DEED RECORD NORTH 89°59’35” WEST, 100.11 FEET); THENCE NORTH 52°41’40” WEST, ALONG SAID NORTHEASTERLY LINE, A DISTANCE OF 655.97 FEET (DEED RECORD NORTH 52°41’30” WEST, 655.22 FEET) TO THE INITIAL POINT OF BEGINNING.

CONTAINING 10.61 ACRES, MORE OR LESS

EXHIBIT B – LEGAL DESCRIPTION OF COMMON PROPERTY

The Common Property, as depicted on the Official Plat for Clearview of Talent Planned Community, recorded 02/09/2010, as Plat No. V36 P1, Instrument No. 2010-4604 in the official records of Jackson County, Oregon.

AMENDED AND RESTATED
BYLAWS
OF
CLEARVIEW OF TALENT RESIDENTIAL ASSOCIATION

AN OREGON NON-PROFIT CORPORATION

ARTICLE I – ASSOCIATION MEMBERSHIP

  1. Definition of Terms

All definitions contained in the Declaration of Covenants and Restrictions for CLEARVIEW of TALENT; a Class I Planned Community, recorded herewith, shall be considered incorporated herein.

  2. Membership and Voting Rights

Every person or entity who is a record owner of a fee simple or life estate interest in any Lot within this Planned Community, which is intended exclusively for residential use, and which is subject, by covenants of record, to assessment by the Clearview of Talent Residential Association, and as defined in the Declaration, shall be a Member of the Clearview of Talent Residential Association. No person holding an interest in a Lot solely as security for the performance of an obligation shall be entitled to membership. Membership shall be appurtenant to, and may not be separated from, ownership of any Lot which is subject to assessment by the Residential Association. Ownership of such Lot shall be the sole qualification for membership. Membership shall automatically commence upon a person’s acquisition of ownership and shall automatically terminate when such ownership shall terminate or be transferred.

  3. Suspension of Membership

During any period in which a Member shall be in default of the payment of any regular or special assessment levied by the Residential Association, as set forth below, the right of use of the Common Property by such Member may be suspended by the Board until such assessment has been paid in full. Such rights of a Member may also be suspended, after notice and hearing before the board, for a period not exceeding 60 days, for each infraction of any Rule or Regulation which has been established and published by the Residential Association concerning the use of the Common Property.

ARTICLE II – POWERS OF THE RESIDENTIAL ASSOCIATION

  1. The purpose of the Residential Association is to serve as a means through which the Members owning Residential Lots may take action with regard to the administration, management, and operation of the Residential portions of the Planned Community, including the use, maintenance, repair, of the Residential Lots and all Common Property. The Residential Association shall have the following powers:

1. Adopt and amend the Bylaws for the Residential Association, and the Rules and Regulations governing the use of the Living Units on Residential Lots;
2. Adopt and amend budgets for revenues, expenditures, and reserves, and collect assessments from Residential Members for common expenses and reserve accounts;
3. Hire and terminate managing agents and other employees, agents, and independent contractors;
4. Defend against any claims, proceedings, or actions brought against it;
5. Initiate or intervene in litigation or administrative proceedings in its own name and without joining the individual Residential Members in the following:
   1. Matters relating to the collection of assessments and the enforcement of governing documents;
   2. Matters arising out of contracts to which the Residential Association is a party;
   3. Actions seeking equitable or other non-monetary relief regarding matters that affect the common interests of the Members, including but not limited to the abatement of nuisance;
   4. Matters relating to or affecting Common Property, including but not limited to actions for damage, destruction, impairment, or loss of use of any Common Property; and
   5. Any other matter to which the Residential Association has standing under law or pursuant to the Declaration or these Bylaws.
6. Make contracts and incur liabilities;
7. Regulate the use, maintenance, repair, replacement, and modification of the Common Property;
8. Cause additional improvements to be made as a part of the Common Property;
9. Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property, except as is otherwise provided in the Declaration Property;
10. Grant easements, leases, licenses, and concessions through and over the Common Property;
11. Modify or discontinue the use of any Common Property, regardless of whether such Common Property is mentioned in the Declaration, provided that:
    1. Nothing in this paragraph is intended to limit the authority of the Residential Association to seek approval of the modification, closure, removal, elimination, or discontinuance by the Members; and
    2. Modification, closure, removal, elimination, or discontinuance, other than on a temporary basis, of any swimming pool, spa, or recreation or community building or recreation apparatus must be approved by at least a majority of Members voting on the matter at a meeting or by written ballot held in accordance with, the Declaration or these Bylaws.
12. impose and receive any payments, fees or charges for the use, rental, or operation of the Common Property and services provided to Members;
13. Adopt rules regarding the termination of utility services paid for out of assessments of the Residential Association and access to and use of recreational and service facilities available to Members and, after giving notice and an opportunity to be heard, terminate the rights of any Members to receive such benefits or services until the correction of any violation covered by such rule has occurred;
14. Impose charges for late payments and reimbursement of attorney fees related to the collection of assessments and, after giving written notice and an opportunity to be heard, levy reasonable fines for violations of the Declaration, these Bylaws, and Rules and Regulations of the Residential Association if the charge imposed or the fine levied is used on a schedule set forth in the Rules and Regulations, or contained in the Declaration or these Bylaws or an amendment to either, that is delivered to each Member, mailed to the mailing address of each Member or mailed to the mailing addresses designated in writing by the Members, or based on a resolution of the Residential Association or its board of directors that is delivered to each Residential Member, mailed to the mailing address of each Member;
15. Impose reasonable charges for the preparation and recordation of amendments to the Declaration;
16. Provide for the indemnification of its officers and the board of directors, and maintain liability insurance for directors and officers;
17. Assign its right to future income, including the right to receive common expenses assessments; and
18. Exercise any other powers necessary and proper for the administration and operation of the Residential Association.

  2.

1. Before initiating litigation or an administrative proceeding in which the Residential Association and a Member have an adversarial relationship, the party that intends to initiate litigation or an administrative proceeding shall offer to use any dispute resolution program available within Jackson County, Oregon that is in substantial compliance with the standards and guidelines adopted under ORS 36.175. The written offer to use such program must be hand-delivered or mailed by certified mail, return receipt requested, to the address, contained in the records of the Residential Association, for the other party,
2. If the party receiving the offer does not accept the offer within 10 days after receipt by written notice hand-delivered or mailed by certified mail to the address contained in the records of the Association for the other party, the initiating party may commence the litigation or other proceeding. The notice of acceptance of the offer must contain the name, address, and telephone number of the body administering the dispute resolution program.
3. If a qualified dispute resolution program exists within Jackson County, Oregon, and an offer to use the program is not made as required under paragraph a) of this subsection, litigation or an administrative proceeding may be stayed for 30 days upon a motion of the non-initiating party. If the litigation or administrative action is stayed under this paragraph, both parties shall participate in the dispute resolution process.
4. Unless a stay has been granted under paragraph c) of this subsection, if the dispute resolution process is not completed within 30 days after receipt of the initial offer, the initiating party may commence litigation or an administrative proceeding without regard to whether the dispute resolution is completed.
5. Once made, the decision of the court or administrative body arising from litigation or an administrative proceeding may not be set aside on the grounds that an offer to use a dispute resolution program was not made.
6. The requirements of this subsection do not apply to circumstances in which irreparable harm to a party will occur due to delay or to litigation or an administrative proceeding initiated to collect assessments, other than assessments attributable to fines.

ARTICLE III – MEMBERSHIP MEETINGS

  1. Annual Meetings

The Board shall set a date for each annual meeting, and notify all members, by email. At all meetings of the Residential Association, the president shall preside.

  2. Special Meetings

Special meetings of the Members may be called by the president, by a majority of the board, or upon written request of at least 30% of the Members. Notice of such meeting must be hand-delivered, mailed, or emailed to each Lot not less than 10 nor more than 50 days before the meeting. Business transacted at a special meeting shall be confined to the purposes stated in the notice.

  3. Notice of Meetings

Written notice of each meeting of the Members shall be given by the secretary to each Member, by personally delivering, faxing, mailing, or emailing, a copy of such notice, at least 10 days, but not more than 50 days, prior to such meeting to the Members’ addresses, fax numbers, or email addresses last appearing on the books of the Association, or supplied by such Member to the Residential Association for the purpose of this notice. Such notice shall specify the place, day, and hour of the meeting, and, in the case of the special meeting, the purpose of the meeting. It shall also state the items on the agenda, including the general nature of any proposed amendment to the Declaration or Residential Bylaws, any budget changes, or any proposal to remove a director or officer. Notices shall be similarly delivered to all mortgagees that have requested such notice, and each may designate a representative to attend the meetings.

  4. Quorum

The presence at the meeting of Members representing a majority of the votes of the membership, the use of proxies being permitted, shall constitute a quorum for any action except as otherwise provided in these Bylaws.

  5. Votes and Proxies

At all meetings of Residential Members, each Member may vote in person, by absentee ballot, or by proxy. All proxies shall be in writing, executed by the Member and dated and filed with the Secretary. Every proxy shall be revocable and is deemed revoked one year from execution if not revoked before. Each Member shall be entitled to vote on the basis of one vote per Lot. If a Member holds title to more than one Lot, that Member shall possess more than one vote. Except as otherwise provided herein, the majority vote of Members present at a meeting where a quorum has been met or exceeded, shall be necessary and sufficient to pass a specific proposal. “Majority” as used herein shall mean and refer to no less than 51%, currently 28 of 54 members. An executor, administrator, guardian, or trustee may vote, in person or by proxy, at a meeting of the Association with respect to a Lot owned in a fiduciary capacity, so long as the Secretary is satisfied as to the fiduciary’s appointment. Co-owners of a Lot shall share one vote, and may vote or grant a proxy in the absence of protest by the other co-owner(s). Any disagreement between co-owners concerning the vote will either result in the vote being disregarded in its entirety, or a court may establish the authority of co-owners to vote.

  6. Actions Taken Without Meeting

1. Any action that may be taken at any annual or special meeting of the Residential Association may be taken without a meeting if the Residential Association delivers a written ballot describing each proposed action to every Member that is entitled to vote on the matter. The board must provide Members with at least 10 days’ notice before written ballots are mailed or otherwise delivered. If, at least 3 days before written ballots are scheduled to be mailed or otherwise distributed, at least 20% of the Members petition the board for secrecy, a written ballot must be accompanied by a secrecy envelope, a return identification envelope to be signed by the Member and instructions for marking and returning the ballot. Written ballots that are returned in secrecy envelopes may not be examined or counted before the deadline for returning ballots has passed. A written ballot shall set forth each proposed action and provide an opportunity to vote for or against each proposed action.
2. Matters that may be voted on by written ballot shall be deemed approved or rejected as follows:
   1. If approval of a proposed action otherwise would require a meeting at which a certain quorum must be present and at which a certain percentage of total votes cast is required to authorize the action, the proposal shall be deemed to be approved when the date for the return of ballots has passed, a quorum of Members has voted and the required percentage of approving votes has been received. Otherwise, the proposal shall be deemed to be rejected;
   2. If approval of a proposed action otherwise would require a meeting at which a specified percentage of Members must authorize the action, the proposal shall be deemed to be approved when the percentage of total votes cast in favor of the proposal equals or exceeds such required percentage. The proposal shall be deemed to be rejected when the number of votes cast in opposition renders approval impossible or when both the date for return of ballots has passed and such required percentage has not been met.
      The votes may be counted from time to time before the final return date to determine whether the proposal has passed or failed by the votes already cast on the date they are counted.
3. All solicitations for votes by written ballot shall state the following:
   1. If approval of a proposal by written ballot requires that the total number of votes cast equal or exceed a certain quorum requirement., the number of responses needed to meet such quorum requirement; and
   2. If approval of a proposal by written ballot requires that a certain percentage of total votes cast approve the proposal, the required percentage of total votes needed for approval.
4. All solicitations for votes by written ballot shall specify the period during which the Association shall accept written ballots for counting, which period shall end on the earliest of the following dates:
   1. If approval of a proposed action by written ballot requires that a certain percentage of the Members approve the proposal, the date on which the Residential Association has received a sufficient number of approving ballots;
   2. If approval of a proposed action by written ballot requires that a certain percentage of the Members approve the proposal, the date on which the Residential Association has received a sufficient number of disapproving ballots to render approval impossible; or
   3. In all cases, the date certain on which all ballots must be returned to be counted.
5. A written ballot may not be revoked.

  7. Robert’s Rules of Order

1. Meetings of the Residential Association shall be conducted according to the latest edition of Robert’s Rules of Order published by the Robert’s Rules Association.
2. A decision of the Residential Association may not be challenged because the appropriate rules of order were not used unless a person entitled to be heard was denied the right to be heard and raised an objection at the meeting in which the right to be heard was denied.
3. A decision of the Residential Association is deemed valid without regard to procedural errors related to the rules of order one year after the decision is made, unless the error appears on the face of a written instrument memorializing the decision.

ARTICLE IV – BOARD OF DIRECTORS

  1. Number

The affairs of this Residential Association shall be managed by a board selected from among the Members. The Board shall consist of an odd number of members, at least five (5) and not more than seven (7), comprised of Officers and Directors.

  2. Election of Directors and Officers

At each annual meeting, the Residential Association Members, by majority vote, shall elect a President, a Treasurer, and a Secretary, plus 1 or 3 directors for a term of one year. One Director is selected by the Clearview of Talent Commercial Association.

  3. Removal

Any director may be removed from the board, with or without cause, by a majority vote of the Members of the Residential Association. No removal of a director is effective unless the matter of removal is an item on the agenda and stated in the notice for the meeting. Any director shall also be considered suspended from the directorship for such period of time as that director’s Association membership is suspended pursuant to Article 1 above. In the event of the death, resignation, suspension, or removal of a director, his or her successor shall be elected by the Residential Association membership, and shall serve for the unexpired term of the parting director.

  4. Compensation

No director shall receive compensation for any service rendered to the Association as a director. However, any director shall be reimbursed for actual expenses incurred in the performance of duties.

  5. Qualification

To qualify for participation on the board, each director shall be a Member in good standing of the Residential Association and shall be current in his or her assessment payments account. There are no restrictions upon a director’s re-election.

  6. Duties

Duties of the specific officers of the board are as follows:

1. President: The president shall preside at all meetings of the board; shall oversee all work of our Property Manager, shall see that orders and resolutions of the board are carried out; shall as circumstances require, sign all leases, mortgages, deeds, contracts, instruments of conveyance, or any other written instruments pursuant to the instructions of the board; and shall perform such duties of the other directors as circumstances may require from time to time,
2. Secretary: The secretary shall record the votes and keep the minutes of all meetings and proceedings of the board and of the Members; serve notice of meetings of the board and of the Members; keep current records showing the membership of the Association, together with addresses; perform such other duties as required by the board; and serve as president of the Association in the event of the president’s absence or incapacity, pending the election of a successor,
3. Treasurer: The treasurer shall oversee all work of our Bookkeeper, who shall receive and deposit, in appropriate bank accounts, all moneys of the Association, and shall disburse such funds as directed by resolution of the board; shall sign all checks and promissory notes of the Association; shall keep proper books of account; shall prepare and file all needed tax forms, and shall prepare a quarterly budget and statement of income and expenditures to be presented to the Board and membership at regular meetings.

ARTICLE V – DIRECTORS’ MEETINGS

  1. Regular Meetings

Regular meetings of the board shall be held monthly or, at the option of the directors, quarterly, and shall be held at such place, date, and hour as may be fixed from time to time by resolution of the board. In order to meet in executive session (without Members present) the board shall first vote in an open meeting whether to meet as such, except in the case of an emergency. If the board votes to meet in executive session, the president shall state the nature of the action to be considered and, as precisely as possible, when and under what circumstances the deliberations can be disclosed to Members. All other meetings of the board of directors shall be open to all Members of the Residential Association. Executive session shall be appropriate for the following:

1. Consultation with legal counsel concerning the rights and duties of the Residential Association regarding existing or potential litigation or criminal matters;
2. Personnel matters, including salary negotiations and employee discipline; and
3. The negotiation of contracts with third parties.

  2. Emergency Meetings

Emergency meetings of the board shall be held when called by the president, or by any two directors. The meeting and notice requirements in this section may not be circumvented by chance or social meetings or by any other means.

  3. Quorum

A majority of the board shall constitute a quorum for the transaction of business. Every act done, or decision made by a majority of the directors present at a duly held meeting at which a quorum is present, shall be regarded as the act of the board.

  4. Notice

For other than emergency meetings, notice of meetings of the board shall be provided to all Members. Such delivery may be by hand delivery, email, or fax no less than 3 days prior to each meeting, or may be made by regular mail no less than 5 days prior to each meeting. Emergency meetings of the board may be held only with actual notice to each director and may be conducted by telephonic communication. For all emergency meetings held without notice to the Members, the reason for the emergency must be stated in the minutes of the meeting. The board shall maintain a current email and mailing list of all Members.

  5. Robert’s Rules of Order

1. Meetings of the board of directors shall be conducted according to the latest edition of Robert’s Rules of Order published by the Robert’s Rules Association.
2. A decision of the board of directors may not be challenged because the appropriate rules of order were not used unless a person entitled to be heard was denied the right to be heard and raised an objection at the meeting in which the right to be heard was denied.
3. A decision of the board of directors is deemed valid without regard to procedural errors related to the rules of order one year after the decision is made, unless the error appears on the face of a written instrument memorializing the decision.

ARTICLE VI – POWERS AND DUTIES OF THE BOARD OF DIRECTORS

  1. Powers

The board shall have power to:

1. Recommend to the membership at annual or special meetings administrative Rules and Regulations governing the details of the maintenance, operation, and use of the Residential Lots and the Common Property, which shall be adopted by majority vote of the Members, the use of proxies being allowed, and amended in similar fashion. Once adopted, said Rules and Regulations shall be published and distributed to all Members.
2. Exercise all powers, duties, and authority not reserved to the membership by other provisions of these Bylaws so that Association business and affairs may be effectively managed on a daily basis, always exercising the care required of fiduciaries.
3. Employ such person, persons, or corporations as it may deem necessary for the proper administration, management, and maintenance of the Common Property and affairs of the Residential Association, as well as to obligate the Residential Association to reasonable compensation for same. Any such contract shall provide for termination upon 30 days written notice, with or without cause, and shall not be for a term in excess of 3 years.
4. Borrow money for Association purposes, and on behalf of the Residential Association, provided that such liability shall not exceed twice the Residential Association’s monthly assessment income unless the board has first obtained the approval of 75% percent of the Residential Association membership either at a special meeting convened for that purpose, or at a quarterly meeting.

  2. Duties

It shall be the duty of the board to:

1. Cause to be compiled a record of all acts of the board and Residential Association affairs, and to present a statement thereof to the Members at the annual meetings of the membership;
2. Supervise all officers, agents and employees of this Association, and to see that their duties are properly performed;
3. Within 90 days after the end of the fiscal year, distribute to each Member, and to each mortgagee upon written request, a copy of an annual financial statement consisting of a balance sheet and income and expense statement for the preceding fiscal year, as well as the current operating budget. Additionally, the board shall timely prepare or have prepared all necessary income tax returns for the Residential Association.
4. As more fully provided herein, adopt an annual budget and fix the amount of the regular Lot assessment at least 30 days in advance of the close of the Residential Association’s fiscal year. Written notice of the budget and regular Lot assessment shall be sent by regular mail to every Member at least 30 days in advance of the close of the Residential Association’s fiscal year.
5. Issue, upon demand of any Member, secured party, or bona fide purchaser, a certificate setting forth the state of the Member’s assessment account. A reasonable charge may be made by the board for the issuance of these certificates. If a certificate states an assessment has been paid, such certificate shall be conclusive evidence of such payment;
6. Upon written request of a prospective purchaser, make available for examination and duplication, the most recent financial statement and current operating budget of the Residential Association;
7. Cause all officers or employees having fiscal responsibilities to be bonded, as it may deem appropriate;
8. Maintain all property for which the Residential Association has responsibility according to the Declaration in a clean and orderly state, repair or replace such property as it deems appropriate, and correct any dangerous conditions which may be discovered upon the premises. The board shall be responsible for payment of such expenses, and may delegate such authority to the treasurer, who shall submit payment vouchers for the board’s ratification at each regular meeting. Assessments shall be allocated as provided in the Declaration;
9. Enforce, among the Members and the Residential Association in general, any and ail restrictive covenants to which the Members and the Association may be lawfully subject;
10. Furnish a copy of the Statement of Planned Community Information, if any, created in accordance with ORS 94.667, within 14 days after receiving a written request from a Member, the Declarant, or a prospective purchaser.

  3. Insurance

The board shall annually review the Association’s insurance coverage. The board shall procure insurance for all insurable improvements in the Common Property against loss or damage by fire or other hazards, including extended coverage, vandalism and malicious mischief. The insurance shall cover the full replacement costs of any repair or reconstruction in the event of damage or destruction from any such hazard if the insurance is available at reasonable cost, as well as a public liability policy covering all Common Property and all damage or injury caused by the Association’s negligence. Premiums shall be a common expense of the Residential Association and the policy may contain a reasonable deductible and the amount thereof shall be added to the face amount of the policy in determining whether the insurance equals at least the full replacement cost. Each Member must maintain the equivalent insurances respecting that Member’s property from the point at which it bears improvements. The insurance maintained by the Residential Association shall not be brought into contribution with insurance policies purchased by Members or their mortgagees. The board shall obtain, if reasonably available, insurance policies which provide for a waiver of subrogation by the insurer as to any claims against the board or any Member or guest of a Member. The policies shall also contain a waiver by the insurer of its right to repair and reconstruct instead of paying cash. The policies shall further provide that they shall not be canceled, invalidated, or suspended because of any action of a Member or of a director, officer, or employee of the Residential Association unless the usurer gives the Residential Association a prior written demand that the Association correct the defect and allow the Association a reasonable time to make the correction. Further, any “other insurance” clause in any policy shall exclude from its coverage all Members’ policies.

ARTICLE VII – COLLECTION OF ASSESSMENTS

  1. Payment

Regular monthly assessments shall become due and payable on the first day of each month. In the event of nonpayment by the 10th day of each month, the treasurer shall notify each Member of that Member’s failure to remit the assessment to the treasurer. Such notification shall be written and delivered personally to the Member or emailed, faxed, or mailed to same at the address to which notices of meetings are sent.

  2. Request for Accounting

At the request of any Member, the Residential Association shall provide a written statement of the Member’s account within 30 business days of receipt of the request. The statement shall provide amount of assessments due and unpaid, interest rate on assessments unpaid, and late payment charges accruing. The Association need not comply with such a request if it has commenced litigation against the Member, and such litigation is pending when the statement is due.

  3. Special Assessments

Special assessments as assessed by the board shall be paid and collected in a manner specified by the board at the time the assessment is made.

  4. Default

Failure by a Member to pay any assessment of the Association shall be a default by such Member of his or her obligations pursuant to these Bylaws and the Oregon Planned Community Act. In addition to the interest which may be charged on delinquent assessments, the board, at its option, may impose a late charge penalty in respect to any monthly assessment not paid within 10 days from the due date. Such penalty may not exceed the sum of 10% of the monthly assessment. The Association shall be entitled to a lien, which may be enforced upon compliance with the provisions of the Oregon Planned Community Act. In any foreclosure suit by the Residential Association with respect to such lien, the Residential Association shall be entitled to the appointment of a receiver if the Member is generating rent from the Living Unit or Lot.

  5. Attorney Fees

Members shall be obliged to pay reasonable fees and costs including, but not limited to, attorney fees incurred in connection with efforts to collect from that Member, any delinquent unpaid assessments. In addition to the monthly assessment for operating expenses, such assessments may include fees, late charges, fines, and interest imposed pursuant to the Oregon Planned Community Act. In the event suit or action is commenced by the directors for the collection of any amounts due pursuant to these Bylaws or for the enforcement of any provisions of the Declaration, Bylaws, or of the Oregon Planned Community Act, the Member or Members, jointly and severally, shall, in addition to all other obligations, pay the costs of such suit or action, including reasonable attorney fees to be fixed by the trial court and, in the event of an appeal, the cost of the appeal, together with reasonable attorney fees in the appellate court to be fixed by such court.

ARTICLE VIII – BOOKS AND RECORDS

The books, records, and papers of the Residential Association shall at all times be retained within the state of Oregon, and shall be subject to inspection and duplication by any Member or mortgagee during reasonable business hours, The Declaration, Articles of Incorporation, Association Rules and Regulations, and these Bylaws, along with all amendments or supplements thereto, shall be available for inspection and duplication by any Member, mortgagees or prospective purchasers at the principal office of the Residential Association and copies may be purchased at a reasonable cost, In particular, the Residential Association shall maintain a copy of the most recent financial statement, and the current operating budget. The Board intends to maintain current copies of public records on our website: https://clearviewoftalent.com/.

ARTICLE IX – AMENDMENTS

Amendments to these Bylaws may be proposed by a majority of the Residential Board or by at least 30% of the Residential Members of the Planned Community, The Bylaws may be amended, at annual or special meetings of the Members, by an affirmative vote of not less than a majority of all Residential Members, in person, by proxy, or by written ballot. Any such amendment shall not be effective until a copy of the Bylaws as amended, or the amendment thereto, certified by the president and secretary of the Residential Association as having been adopted in accordance with the Bylaws and applicable law, is recorded in the official records of Jackson County, Oregon.

CERTIFICATION

the undersigned, do hereby certify:

That the undersigned are the Declarant of CLEARVIEW of TALENT, a Class I Planned Community, and that the foregoing Bylaws constitute the revised Bylaws of CLEARVIEW of TALENT RESIDENTIAL ASSOCIATION.

IN WITNESS WHEREOF, the undersigned have executed this instrument this (add date).

Clearview of Talent Residential Association, by:

Susan Newman, President of Clearview of Talent Residential Association

Valerie Atchison, Secretary of Clearview of Talent Residential Association

(return to top)