Vista at Mill Pond CCRsPage 1 of 52
After Recording Return to:
Rush Residential
6622 Wollochet Dr.
Gig Harbor WA 98335
Recorded concurrently with Final Plat Recording No:___________________
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS, EASEMENTS AND RESERVATIONS
FOR VISTA AT MILL POND HOMEOWNERS
ASSOCATION
Grantor: Rush Residential, Inc., a Washington corporation
Grantee: The Public Owners of VISTA AT MILL POND
Legal Description (abbreviated): A PORTION OF THE NORTHEAST 1/4 OF THE
NORTHEAST, 1/4 OF SECTION 25; TOWNSHIP 17 NORTH, RANGE 01 EAST,W.M. CITY
OF YELM, THURSTON COUNTY, WASHINGTON
Assessor’s Tax Parcel No: PARCEL A: 21725111200 PARCEL B: 217525111100
VISTA AT MILL POND PLAT AS RECORDED UNDER THURSTON COUNTY
RECORDING NUMBER__________________________
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TABLE OF CONTENTS
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS, EASEMENTS AND RESERVATIONS FOR
VISTA AT MILL POND
Article Page
One: Definitions 4-8
Two: Development Period Management 8-9
Three: Association 9-11
Four: Voting Rights 11-12
Five: Common Elements 12-14
Six: Maintenance and Common Expenses 14-20
Seven: Assessments / Specially Allocated Expenses 21-24
Eight: Collection of Assessment / User Fee 25-26
Nine: Building, Use and Architectural Restrictions 27-39
Ten: Easements 39-40
Eleven: Mortgagee Protection 40-42
Twelve: Management Contracts 42
Thirteen: Insurance 42
Fourteen: Community Compliance Guidelines 43
Fifteen: Remedies and Waiver 43
Sixteen: Limitation of Liability 43-44
Seventeen: Condemnation 44
Eighteen: General Provisions 44-47
Article Nineteen: Construction and Sales by Declarant 47-49
Article Twenty: Amendment and Revocation 50-51
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DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS, EASEMENTS AND RESERVATIONS FOR
VISTA AT MILL POND
This Declaration of Covenants, Conditions, Restrictions, Easements and Reservations
for VISTA AT MILL POND the “Declaration” is made by Rush Residential, Inc., a
Washington corporation, the “Declarant” this _____ Day of ___________________ , _______
RECITALS
1. Declarant is the Owner of certain real property situated in Thurston County,
Washington and legally described as follows:
PARCEL A: THE SOUTH 528 OF THE EAST 330 FEET OF THE NORTHEAST
QUARTER OF THE NORTHEAST QUARTER OF SECTION 25, TOWNSHIP 17
NORTH, RANGE 1 EAST, W.M. EXCEPTING THERFROM THE EAST 20 FEET FOR
COUNTY ROAD KNOWN AS MILL ROAD.
PARCEL B: THAT PORTION OF THE NORTHEAST ONE-QUARTER OF THE
NORTHEAST ONE-QUARTER OF SECTION 25, TOWNSHIP 17 NORTH, RANGE 1
EAST, W.M. DISCRIBED AS FOLLOWS: BEGINNING AT A POINT 330 FEET WEST
OF THE SOUTHEAST CORNER OF SAID NORTHEAST ONE-QUARTER OF THE
NORTHEAST ONE-QUARTER; THENCE WEST 330 FEET, THENCE NORTH 238
FEET, THENCE EAST 150 FEET, THENCE NORTH 290 FEET, THENCE EAST 180
FEET; THENCE SOUTH 528 FEET TO THE POINT OF THE BEGINING.
The above-described property is referred to as the “Residential Property”.
2. The name of this community is “VISTA AT MILL POND”, and as defined by
the Act, is a plat community and the purpose of this Declaration is to subject the residential
property within the plat community to the provisions of this Declaration.
3. All of the Residential Property and housing units constructed on the Residential
Property are and will be held, sold, and conveyed subject to this Declaration which is made for
the purpose of enhancing and protecting the value, the desirability and attractiveness of the real
property for the benefit of all the real property and their Owners. The covenants, restrictions,
reservations, and conditions, contained in this Declaration shall run with the land as easements
and equitable servitudes, and shall be binding upon the real property and each portion thereof
and all persons owning, purchasing, leasing, subleasing or occupying any Unit on the real
property and upon their respective heirs, successors and assigns.
4. The Declarant has deemed it desirable for the efficient preservation of the values
of the improvements in and upon the Residential Property and for the maintenance and
preservation of the Common Elements to create a not for profit corporation under RCW 24.03
(hereinafter called the “Association”) to which shall be assigned the powers, responsibilities
and duties of maintaining and administering the Common Elements and enforcing the
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covenants, conditions, and restrictions herein contained, and collecting and disbursing the
assessments and charges hereinafter created.
In addition to the foregoing, Declarant has deemed it desirable for the efficient preservation of
values and quality of the property and its surrounding environment for the association and the
Owners to maintain the property, including the Common Elements, Units, and improvements.
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ARTICLE ONE: DEFINITIONS
For purposes of the Declaration, Articles of Incorporation and Bylaws of the Association,
certain words and phrases have particular meanings, which are as follows:
1. “ACC” shall mean the Architectural Control Committee, as described in this
agreement.
2. “Act” shall mean the 2018 Washington Uniform Common Interest Ownership Act
(WUCIOA) and in the event there is any conflict between the provisions of this
Declaration and the provisions of said Act, the provisions of said Act shall control
and supersede any provision in this Declaration.
3. “Articles” shall mean the Association’s Articles of Incorporation and any
amendments.
4. “Assessments” shall mean the Assessments imposed by the Association pursuant to
Article Seven below.
5. “Association” shall mean the VISTA AT MILL POND Homeowners Association
formed as a nonprofit corporation for the purpose of administering this Declaration.
6. “Board” or “Board of Directors” shall mean the Board of Directors of the
Association. For purposes of exercising the powers and duties assigned in this
Declaration to the Board during the development period, this term shall also mean
the “Temporary Board” or “Declarant” as provided in this Declaration unless the
language or content clearly indicates otherwise.
7. “Budget” shall mean the operating budget for the Association.
8. “Bylaws” shall mean the Association’s Bylaws and any amendments.
9. “Common Elements” shall mean all real property and improvements: (a) owned or
leased by the Association; (b) in which the Association has an easement for access or
maintenance (excepting easements for maintaining Units) for the use, enjoyment, and
benefit of the Members; (c) in which the Members have a right of control by any
written instrument, including this declaration, or by delineation and declaration of the
same on the Plat; (d) in which the Members of the Association have an undivided
interest; (e) or any area which is required to be maintained by the Association under
the terms of this Declaration, governmental authority, or any other recorded
document. The Common Elements may be improved by certain common facilities
and, if and when improved, shall include such common facilities. The Common
Elements may include (where applicable, if and when improved) common landscaped
or lawn areas and open space areas, including improvements thereon, streetlights,
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street trees and other landscaping. private roads, signs, recreational, picnic and
athletic facilities, pedestrian and hiking paths and trails, bicycle paths, private alleys,
irrigation systems located in public rights of way, drainage and storm water
detention/retention areas and sewer, water, storm drainage, and utility systems
located on or in the Common Elements.
10. “Common Expenses” shall mean all costs and expenses incurred by the Association,
including but not limited to, the following (a) expenses of administration,
maintenance, and operation, including but not limited to, reasonable compensation to
employees of the Association; (b) costs of repair or replacement of the Common
Elements or any improvements thereon; (c) premiums or deductibles for all insurance
policies and bonds required or permitted by this Declaration; (d) all real property
and other taxes and assessments on the Common Elements; (e) utility and service
charges; (f) funding of reserves for anticipated operational shortfalls or for
replacement of capital items; (g) funding of reserves for the start-up expenses and
operating contingencies of a nonrecurring nature; (h) expenses payable under this
Declaration; (i) legal fees and costs; (j) the costs of recovering unpaid assessments,
including legal fees and other costs of foreclosure of an association lien; (k) fees for
architectural services provided to the committee; (l) expenses of administration,
maintenance, operation, repair or replacement of landscaping performed by the
Association or the Association’s agent on the Owners’ Units; (m) costs payable under
this Declaration; (n) the costs of maintaining or repairing any storm water drainage
system; (o) maintenance and repair of plat perimeter fencing as constructed by the
Declarant and the irrigation of the Common Elements (p) Tract “A” –Open Space /
Storm/ Park. Tract “B” –EV Access / Utility. (q) Landscape and irrigation
maintenance and repair of Right of Way frontage buffer area along 104 AVE SE (r)
any other costs and expenses determined from time to time as reasonably necessary
by the board, or as otherwise incurred by the Association pursuant to this Declaration.
11. “Community Compliance Guidelines” The Community Compliance Guidelines
(CCG), commonly referred to as Rules and Regulations, are guidelines governing the
use of the Property and overall conduct within the community, in addition to the use
restrictions contained in this Declaration.
12. “Declarant” The Declarant shall mean Rush Residential, Inc., a Washington
corporation, or any other person or entity to whom the Declarant assigns by written
instrument its rights as a Declarant under the terms of this Declaration.
13. “Declaration” shall mean this Declaration of Covenants Conditions, Restrictions,
Easements and Reservations.
14. “Development Period or Period of Declarant Control” shall terminate not later than
the earliest of a) 60 days after conveyance of 75% of the Units that maybe created to
Unit Owners other than the Declarant, b) two years after the last conveyance of a
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Unit, c) two years after any right to add new units was last exercised, or d) the day
the Declarant after giving notice in a record to Unit Owners records an amendment
to the Declaration while voluntarily surrendering all rights to a point and remove
Officers and Board Members.
15. “Front yard” shall be defined as the Unit area extending from the front property line
back to a line measured parallel with the front property line which would coincide
with the front wall of the main dwelling on the Unit, exclusive of any garage
projections.
16. “Governing Documents” shall mean the Declaration, Bylaws of the Association,
Articles of Incorporation of the Association and any Rules or Regulations that have
been adopted by the Association.
17. “Housing Unit” shall mean the building occupying a Unit.
18. “Institutional First Mortgagee” or “Mortgagee” shall mean a bank or savings and loan
association or established Mortgage Company, or other entity chartered under federal
or state laws, any corporation or insurance company or state or federal agency which
holds a first note or deed of trust against a Unit or housing unit thereon.
19. “Majority Vote” shall mean a vote of the members of more than 50% of the total
number of votes allocated to the Association pursuant to Article Four.
20. “Member” shall mean every person or entity that holds a membership in the
Association.
21. “Mortgage” shall mean a mortgage or deed of trust encumbering a Unit or other
portion of the real property.
22. “Occupant” shall mean a lessee or licensee of an Owner or any other person or entity,
other than an owner, in lawful possession of a Unit, or a portion of a Unit, with the
permission of the owner.
23. “Owner” shall mean the recorded Owner(s) of a Unit, whether one or more persons
or entities, but excluding those having such interest merely as security.
24. “Participating Builder” shall mean a party that purchases unimproved Units from the
Declarant for purposes of building residences on such Units and offering such
residences for sale.
25. “Person” shall mean a natural person, a corporation, a partnership, trustee or other
legal entity.
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26. “Plat” shall mean the Residential Property of VISTA AT MILL POND.
27. “Prorata Share” shall mean for any particular Owner and for any particular
assessment an amount equal to the number of Units owned by an Owner divided by
the total number of Units subject to that particular assessment.
28. “Representative” shall mean an in individual or individuals appointed by the
Declarant (during the development period) to serve on the Board of Directors or on
any committee of the Association, including but not limited to, the architectural
control committee. Said representative need not be a member of the Association.
29. “Reserve Fund” The Reserve Fund shall mean a fund or account set aside to meet any
unexpected costs as well as costs for future or long-term upkeep or replacement.
30. “Reserve Study” shall mean a long-term capital budget planning study which
identifies the current status of the reserve fund and an equitable funding plan to offset
ongoing deterioration of Common Elements.
31. “Sale” or “Sold” shall mean the date upon which Ownership of a Unit is transferred
from an Owner to another person or entity by recordation of an instrument of transfer
such as a deed or real estate contract.
32. “Street” shall mean the private and public streets, driveway, lane (if located in a
public right of way or Common Element), place or other thoroughfare either as shown
on any recorded survey or plat of the property, however designated, or as so used as
a part of the Common Elements.
33. “Transition Date” shall mean within 30 days after the development period/Declarant
control terminates, or not later than a date which is 60 days after conveyance of 75%
of the Units to Unit Owners other than to Declarant, the Board of the Association
must schedule a transition meeting of the Members for the election by the Members
of a Board of Directors in accordance with the provisions of the governing documents
and the Act.
34. “Unit” means the physical portion of the VISTA AT MILL POND Plat designated
for separate ownership, the boundaries of which are set forth in the Plat Map of
VISTA AT MILL POND recorded with the Thurston County Auditor. The number
of Units created in this Plat is 21.
35. Unit Specially Allocated Expenses – Specially allocated expenses are maintenance
expenses allocated to a unit which benefits only that unit. (subject to change as
budgets change)
36. “Working Capital Fund” shall have the meaning ascribed to it in Article Seven.
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ARTICLE TWO: DEVELOPMENT PERIOD MANAGEMENT
2.1: Development Period /Declarant Control.
Not later than 60 days after conveyance of 25% of the Units to Unit Owners other than the
Declarant, at least one Unit Owner and not less than 25% of the members of the Board of Directors
of the Association must be elected by Unit Owners other than the Declarant. Not later than 60
days after conveyance of 50% of the Units to Unit Owners other than the Declarant, not less than
33-1/3% of the Members of the Board of Directors of the Association must be elected by Unit
Owners other than the Declarant. Until such Members are elected and take office, the existing
Board of the Association may continue to act on behalf of the Association.
Within 30 days after termination of any period of Declarant control as previously defined, or in
the absence of such a period, not later than a date that is 60 days after conveyance of 75% of the
Units to Unit Owners other than to Declarant, the Board of the Association must schedule a
transition meeting and provide notice to Unit Owners as required by the Act. At this transition
meeting, the Board elected by the Unit Owners must be elected in accordance with the provisions
of the Act.
Other than those Unit Owners that must be elected to the Board as set forth above, the declarant
shall appoint the other directors of the Association who need not be members of the Association
or non-Member representatives to other committees or positions in the Association,
during the development period the Declarant shall appoint the sole director or directors of the
Association who need not be members of the Association or non-member representatives to other
committees or positions in the Association as the Declarant deems appropriate to serve at the
Declarant’s discretion and may assign such responsibilities, privileges, and duties to the Members
as the Declarant determines for such time as the Declarant determines. Any member appointed by
the Declarant during the development period may be dismissed at the Declarant’s discretion. The
Declarant shall also appoint members to the Architectural Control Committee. At such time as the
Declarant has sold and conveyed all Units, then the Declarant may resign as a director of the
Association and from any other committee, until the Board schedules a transition meeting as set
forth above, and the Unit Owners elect the directors or the Association.
At such time at the occurrence of the transition meeting as set forth above, then the Board of
Directors, as elected, shall appoint one or more members to the Architectural Control Committee.
2.2: Purpose of Development Period.
The Declarant’s control of the Association during the Development Period is established in order
to ensure that the real property and the Association will be adequately administered in the initial
phases of development, and to facilitate the Declarant’s completion of construction of housing
units to ensure an orderly transition of Association operations,
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2.3: Authority of Association after Development Period.
At the expiration of Declarant’s management authority, the Association shall have the authority and
obligation to manage and administer the Common Elements and to enforce this Declaration. Such
authority shall include all authority provided for in the Association's Articles, Bylaws, Community
Compliance Guide and this Declaration. The Association shall also have the authority and obligation
to manage and administer the activities of the ACC in its responsibilities as described in this
Declaration. At the expiration of the Declarant’s management authority, any Bond that remains active
on the plat shall be the responsibility of the HOA to uphold and execute any terms of the active Bond.
If at the expiration of any Bond period, repair or replacement is required, it shall be the responsibility
of the HOA to satisfy those requirements.
2.4: Delegation of Authority.
The Board of Directors or the Declarant may delegate any of its managerial duties, powers, or
functions to any person, firm, or corporation. The Board or the Declarant shall not be liable for any
breach of duty, negligence, omission, intentional act or improper exercise by a person who is delegated
any duty, power or function by the Board of Directors or the Declarant.
ARTICLE THREE: ASSOCIATION
3.1: Formation.
The Association has been, or will be, incorporated under the name of VISTA AT MILL POND
Homeowners Association, as a non-profit corporation under Revised Code of Washington, Chapter
24 03.
3.2: Board of Directors.
The Association shall be managed by a Board of Directors, elected or appointed in accordance with
the provisions of this Declaration, the Act, the Articles, and the Bylaws of the Association. Other than
those members of the Board of Directors that must be elected by the Unit Owners, the Declarant shall
have the right to appoint all of the remaining members of the Board in its sole discretion, which
members need not be an Association member, until the Transition meeting as set forth above.
3.3: Delegation to Manager.
The Board may delegate any of its managerial duties, powers, or functions to any Person provided
that any management agreement shall be terminable by the Association for cause upon thirty (30) days
written notice, and without cause upon ninety (90) days written notice. The term of any such
agreement may not exceed one (1) year and may be renewed for up to one (1) year at a time. The
Board members shall not be liable for any omission or improper exercise by the manager of any duty,
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power, or function so delegated by written instrument authorized and entered by the requisite vote of
the Board.
3.4: Duties and Powers of Association.
The duties and powers of the Association are those set forth in its Articles and Bylaws, together with
its general and implied powers as a not for profit corporation, generally to do any and all things that a
corporation organized under the laws of the State of Washington may lawfully do which are necessary
or proper in operating for the peace, health, comfort, safety and general welfare of its Members,
subject only to the limitations upon the exercise of such powers as are expressly set forth in its Articles,
its Bylaws, and in this Declaration.
3.4.1 Purposes.
Specifically, but not by way of limitation, the Association shall effectuate the purposes of this
Declaration, including but not limited to: (i) adopting and enforcing Community Compliance
Guides (through action of the Board pursuant to Section 7; (ii) adopting an operating and
capital budget; (iii) controlling and administering the Association's funds, including the levy,
collection, and disbursement of Assessments/User Fees; and (iv) administering and enforcing
this Declaration. Subject to any dedications or other provisions of this Declaration, the
Association shall have the authority and obligation to establish, manage, repair, and administer
the Common Elements. Subject to the approval of any applicable governmental agency and to
the approval of the Committee, the Association may at any time, and from time to time;
construct, reconstruct, improve, replace and/or restore any Improvement or portion thereof
upon the Common Elements, and the Association may construct, reconstruct, improve and/or
replace destroyed trees or other vegetation and plant trees, shrubs, ground cover and other
landscaping upon the Common Elements. The Association may employ personnel necessary
for the effective operation and maintenance of the Common Elements, including the
employment of legal and accounting services.
3.4.2 Operating Costs.
The Association shall be responsible for the payment of the common expenses as defined
in this Declaration.
3.4.3 Reserve Study.
The Board shall complete a Reserve Study in accordance with the terms of the Act unless
exempted under the provisions of the Act.
3.5: Membership.
An Owner(s) of a Unit shall automatically be a Member of the Association and shall remain a
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Member until such time as Ownership ceases for any reason, at which time such Membership shall
automatically cease. Membership shall be appurtenant to and may not be separated from the
Ownership of each Unit. The Owners covenant and agree that the administration of the Property
shall be in accordance with the provisions of this Declaration, the Articles, and the Bylaws. Except
as may otherwise be provided herein, the rights, duties, privileges, and obligations of all Members
shall be as set forth in this Declaration, the Articles, and the Bylaws.
3.6: Transfer.
Membership held by any Owner shall not be transferred, pledged, or alienated in any way, except
upon the sale or encumbrance of such Owner's Unit and then only to the purchaser or Mortgagee of
such interest in such Unit. Any attempt to make a prohibited transfer is void and will not be reflected
upon the books and records of the Association.
3.7: Community Compliance Guidelines.
The Board shall have the power to adopt from time to time and to enforce Community Compliance
Guidelines governing the use of the Property and conduct within the community, in addition to the
use restrictions contained in this Declaration and whether expressly contemplated herein, provided
that such Community Compliance Guidelines shall not be inconsistent with this Declaration. The
Community Compliance Guidelines may not unreasonably differentiate among Owners. The Board
may prescribe penalties for the violation of such Community Compliance Guidelines, including but
not limited to suspension of the right to use the Common Elements or portions thereof. Any such
Community Compliance Guidelines, and/or amendments thereto, shall become effective thirty (30)
days after promulgation and shall be distributed to all Owners within thirty (30) days after
promulgation. A copy of the Community Compliance Guidelines in force at any time shall be
retained by the secretary of the Association and shall be available for any Owner during reasonable
business hours. Such guidelines shall have the same force and effect as if set forth herein.
ARTICLE FOUR: VOTING RIGHTS
The right to vote may not be severed or separated from any Unit, and any sale, transfer or conveyance
of a Unit to a new Owner or Co-Owners shall operate to automatically transfer the appurtenant vote
without the requirement of any expressed reference thereto. The Association shall have no
responsibility to accept any vote for such Unit if such vote is disputed among Co-Owners.
Notwithstanding the foregoing, the voting rights of any Member may be suspended as provided in this
Declaration, the Articles, or the Bylaws. Member votes may be tabulated by mail, facsimile, email, or
other electronic transmission as agreed to by the Owner. An Owner may, by written proxy delivered
to the Board, designate a voting representative for its voting rights if expressly permitted in the
Bylaws. Each Unit is entitled to one (1) vote. If the Declarant owns Units after termination of its
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Declarant rights, the Declarant shall be entitled to one (1) vote for each Unit owned by the Declarant.
ARTICLE FIVE: COMMON ELEMENTS
5.1: Association Control.
The Association shall have the sole management and control of all the Common Elements, although
each Unit shall be allocated an undivided interest in the Common Elements for real property tax
segregation purposes. The Association's appurtenant rights and duties with respect to the Common
Elements shall include, without limitation, the following:
5.1.1 Limits.
The right of the Association to reasonably limit the number of guests, patrons and invitees of
Owners using the Common Elements.
5.1.2 Rules.
The right of the Association to establish uniform Community Compliance Guidelines pertaining
to the use and conduct within the community.
5.1.3 Borrowings.
The right of the Association in accordance with the Articles, Bylaws and this Declaration, with
a Majority Vote of the Owners, to borrow money for the purpose of maintaining and preserving
the Common Elements, and in aid thereof to Mortgage any or all of its real or personal property
as security for money borrowed or debts incurred, provided that the right of any such Mortgagee
of the Association shall be subordinated to the rights of the Owners.
5.1.4 Use of Common Areas.
The right of the Association to suspend the right to use the Common Elements by an Owner(s)
for any period during which any Assessment/User Fee or fine for an infraction of the published
Community Compliance Guidelines, against the Owner and his Unit remains unpaid and
delinquent for a period of thirty (30) days, provided that any suspension of the rights to use the
Common Elements shall be made only by the Board, after notice and an opportunity for a
hearing, if any, as provided in the Bylaws is given.
5.1.5 Reserved Rights.
The right of the Declarant (and its sales agents, customers and representatives) to the
nonexclusive use of the Common Elements without charge, for sales, display, access, ingress,
egress and exhibit purposes, which right Declarant hereby expressly reserves.
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5.1.6 Reconstruction.
The right of the Association (by action of the Board) to reconstruct, replace or refinish any
Improvement or portion thereof upon the Common Elements, in accordance with the original
design, finish or standard construction of such Improvement, or of the general Improvements
within the Property, as the case may be; and not in accordance with such original design, finish
or standard of construction only with a Majority Vote of the members.
5.1.7 Replacement.
The right of the Association to replace destroyed trees or other vegetation and plant trees,
shrubs and ground cover, upon any portion of the Common Elements.
5.2: Easements for Public Use.
In addition to the foregoing there shall be, and Declarant hereby reserves and covenants for itself
and all future Owners within the Property, easements for public services and utilities, including
without limitation, the right of Thurston County, or other recognized governmental entity or utility
purveyors to install, maintain and repair public Streets, Street lights, curbs, gutters and sidewalks,
sanity sewer, storm water facilities and water systems, and the right of the police and other
emergency and public safety personnel to enter upon any part of the Common Elements for the
purpose of enforcing the law.
5.3: Waiver of Use.
No Owner may exempt himself from personal liability for Assessments/User Fees duly levied by
the Association, nor release the Unit or other property owned by him from the liens and charges
hereof, by waiver of the use and enjoyment of the Common Areas or by abandonment of his Unit or
any other property in the Property.
5.4: Trash and Other Debris.
No trash, debris, waste, grass clippings, or hazardous waste shall be dumped, deposited, or placed
in any Common Elements.
5.5: Taxes.
Each Owner shall execute such instruments and take such action as may reasonably be specified by
the Association to obtain a separate real estate tax assessment of each Unit. If any such taxes or
assessments may, in the opinion of the Association, nevertheless be a lien on the Common Elements,
or any part thereof, they shall be paid by the Association and each Owner shall be obligated to pay
or to reimburse the Association for, as the case may be, the taxes and assessments assessed by the
County Assessor or other taxing authority against the Common Elements and attributable to such
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Owner's Unit and interest in the Common Elements.
5.6: Permissive Use.
Any Owner may permit an Occupant to use the Common Elements in the same manner as an Owner.
All Owners shall be responsible for informing any Occupants of the contents of this Declaration and
the Community Compliance Guidelines regarding the Common Elements and shall be responsible
for requiring its Occupants to comply with this Article.
ARTICLE SIX: MAINTENANCE AND COMMON EXPENSES
6.1: Standard of Maintenance of Common Elements.
The Association shall maintain the common areas as identified and defined in this Declaration in a
manner consistent with good building and nursery practices, and in compliance with all applicable
codes and regulations. "Maintenance" shall include, but not be limited to, road surfacing, gates, stop
signs, speed limit signs, road name signs, storm drainage facilities, and vegetation control.
“Operation" shall include, but is not limited to, towing of improperly parked vehicles; removal of
obstructions within the easement or tract; assuring access for the local fire department; assuring that
necessary sight distances are maintained; and snow/ice removal.
These Common Elements include but are not limited to the following:
6.1.1 Common Element Property
All the Common Element property, or personal property, owned, leased, or in which the
Association has an easement, and which are maintained by the Association or the members of
the Association. To be maintained by the Association: Street or pathway lighting, whether
located in or adjacent to Common Element maintenance area, but not that adjacent to public
streets which are maintained by others; street drains within the plat, including tracts (tracts as
identified upon finalization of plat map); landscaping, signage, and irrigation facilities, if any,
within all common maintenance areas; improvements within all passive and active open space;
rights under any landscape or signage easement; all storm water management systems located in
common maintenance areas if any, including rain gardens and swales; and all wetlands,
including ponds, as delineated on the plat map.
6.1.2 Easements
All easements which have been established for the benefit of Unit Owners or the Association or
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reserved to the Declarant, which may be delineated on the plat of VISTA AT MILL POND, or
which easements are reserved on any other recorded document as well as easements which are
reserved for the benefit of the Association for the purpose of the installation, maintenance, and
repairing of any improvements or any other installations constructed within said easement areas
or any Common Elements as defined above.
6.1.3 Fence Maintenance
The Association shall maintain and repair the exterior Common Element perimeter fencing.
Each Owner shall maintain and repair all fencing around their Unit, including stain thereon if
required by the ACC. On Units that have fencing that adjoin Common Element, the Unit owner
and the HOA shall equally share repair and replacement expenses that are a result of normal use
and wear, Unit owners shall maintain the interior of such adjoining fences.
6.1.4: Standard of Unit Maintenance.
The Association shall be responsible for landscape maintenance of front yards and street trees.
The costs of landscape maintenance of the unit’s front yard is a specially allocated expense of
that unit. The front yard landscape maintenance mentioned above does not include costs of
irrigating front yards and street trees, irrigation repair/replacement or landscape replacement.
Each Unit Owner hereby covenants and agrees to maintain his respective Unit and the housing
unit located thereon in the same condition as a reasonably prudent homeowner would maintain
his own home so that the real property will reflect a high pride of Ownership. Each Unit Owner
shall perform at the Unit Owner’s expense the maintenance and upkeep of any drainage swales
and/or underground drain lines and catch basins installed on their Unit. Each Unit Owner is
responsible to maintain and repair their irrigation systems if installed, replace dead landscaping
and deteriorated bark or ground covering and to provide irrigation sufficient to support healthy
landscaping on the Unit.
6.1.5: Storm/Drain field maintenance
The Association shall be responsible for maintenance of Storm tract and catch basins as outlined
in the O&M manual.
6.1.6: Public Roads
The roads in the community are Public the City shall be responsible for maintenance and repair.
6.1.5: Septic System
The community is on a City maintained STEP system. Refer to STEP Dos and Don’ts.
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6.2: Remedies for Failure to Maintain.
If any Unit Owner shall fail to conduct maintenance and repair on his Unit or the exterior of the
housing unit located thereon, in the same condition as a reasonably prudent homeowner would, the
Association shall notify the Unit Owner in writing of the maintenance required. If the maintenance
is not performed within the time frame designated in the notice, the Association shall have the right
to provide such maintenance, and to levy an assessment against the non-performing Unit Owner for
the cost of providing the maintenance. The assessment shall constitute a lien against the Unit owned
by the non-performing Unit Owner and may be collected and foreclosed in the same manner as any
other delinquent assessment. The Association shall have all remedies for collection as provided in
this Declaration. In the event that emergency repairs are needed to correct a condition on a Unit
which pose a substantial risk of injury or significant property damage to others, the Association may
immediately perform such repairs as may be necessary after the Association has attempted to give
notice to the Unit Owner of the repairs necessary. Such notice in emergency circumstances shall be
sufficient if attempted orally or in writing immediately prior to the Association’s undertaking the
necessary repairs. Emergency repairs performed by the Association, if not paid for by the Unit
Owner, may be collected by the Association in the manner provided for herein notwithstanding the
failure of the Association to give the Unit Owner the thirty (30) day notice.
6.3: Common Expenses.
The Association shall perform such work as is necessary to carry out the duties described in this
Declaration and shall delegate the responsibility for management and supervision of such work to
the Board, the ACC or to a manager or agent hired by the Board for the purpose of such management
and supervision.
Expenses for such work shall be paid by the Association for the benefit of all Unit Owners and shall
be referred to as common expenses. The common expenses shall be paid by the Association from
funds collected from assessments/User Fees paid by Unit Owners. The common expenses shall
include, but shall not be limited to, the following:
6.3.1 Insurance
The cost of maintaining all required insurance coverage and fidelity bonds on any Common
Elements, and for directors and officers of the Association.
6.3.2 Common Element
The cost of maintaining, repairing and replacing all Common Element maintenance
improvements, including but not limited to, street trees, playground equipment, pedestrian
pathways and sidewalks including the right-of-way landscape buffer on 104th Ave SE SE, lights
constructed and installed to illuminate any pedestrian pathways, and any streetlights which are
not otherwise maintained by a public utility or public authority.
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6.3.3 Storm water & Drainage
The cost of maintaining, repairing and replacing all storm water facilities and improvements as
well as the cost of the implementation of a storm drainage plan required in order to obtain plat
approval as well as the cost of the maintenance of the implementation of the storm water
maintenance which may be attached to this Declaration and incorporated herein as though fully
set forth as Exhibit “A”, Map and plat agreement AFN_________________.
Failure to maintain – In the event that the Proponent, HOA (or successors), in the judgement
of the County, fails to maintain drainage facilities within the plat, or if the Proponent or the
successors willfully or accidentally reduce the capacity of the drainage system or render any part
of the drainage system unusable, the Proponent or successors agree to the following remedy:
After 30 days’ notice by registered mail to the Proponent or successor, the County will assess
financial sanctions (P.C.C.17A.10.220) and/or initiate enforcement proceedings. In the event
the County determines the lack of maintenance has resulted in a situation of imminent danger to
life, limb or property, the County will correct the problem as necessary to restore the full design
capacity of the drainage system. In this event, the County will bill the owners of the facility for
all costs associated with such work to include engineering, administration, legal fees,
construction, equipment, and personnel. Costs or fees incurred by the County, including
attorney’s fees and expert’s fees should legal action be required to collect such payments, shall
be borne by the proponent or successors.
6.3.4 Other
Any other expense which shall be designated as a common expense in the Declaration, or which
shall be designated as a homeowner’s association expense as a requirement for plat approval or
may be designated as a common expense from time to time by the Board on behalf of the
Association.
6.4: Extraordinary Use Expenses.
In the event that one or more Unit Owners or their occupants should by their or their occupants use
of the Common Elements cause it to be subjected to other than reasonable wear and tear or by their
actions damage those Common Elements or any improvements located thereon or therein, the Unit
owner subjecting the Common Element to such use shall have the obligation to repair such damage
upon demand by the Association and to restore such Common Element to the condition that existed
prior to such use or action and all expenses therefore shall be paid by the Unit Owner.
6.5: Utilities Easement.
There is hereby reserved and conveyed for the benefit of the Declarant, the Association, all Owners,
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and described Grantees, easements for the various utilities granted under and upon the areas set forth
in the Plat serving the property with electric, telephone, water, sanitary sewer, drainage, and utility
service.
6.6: Owners’ Easements of Enjoyment.
Each Owner shall have a right in an easement of enjoyment in and to the Common Elements which
shall be appurtenant to and shall pass with title (or, if applicable, with the equitable title held by real
estate contract purchaser) to every Unit subject to the following provisions:
6.6.1
The right of the Declarant or the Association to establish use and operation standards within the
Community Compliance Guidelines for all Common Elements and general community conduct,
to be binding upon all Association Members along with enforcement standards.
6.6.2
The right of the Declarant during the development period or the Association after the
development period to suspend an Owner’s to use any Common Element facilities for any period
during which assessments or fines against his or her Unit remain unpaid as stated in this
Declaration; Article 5.1.4.
6.6.3
The right of the Declarant (during the development period) or the Association (after the
development period) to dedicate or transfer all or any part of the Common Elements to any public
agency, authority or utility for such purposes and subject to such conditions as the Declarant or
Members as applicable may deem appropriate. After the development period, no such dedication
or transfer shall be effective unless the instrument agreeing to such dedication or transfer is
signed by Owners of two thirds of the Units that have been recorded.
6.6.4
Any Owner may delegate their right of enjoyment to the Common Elements and facilities to the
members of their family, their tenants, or their guests, subject to the limitations set forth above.
6.7: Insurance.
Nothing shall be done or kept in any Common Elements which will increase the rate of insurance
on the Common Elements or other Units or improvements without the prior written consent of the
board. Nothing shall be kept in any Common Element which will result in cancellation of insurance
on any part of the Common Elements, or which would be in violation of any laws or ordinances.
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6.8: Alteration of Common Elements.
Nothing shall be altered or constructed in or removed from any Common Elements except upon
prior written consent of the Board. There shall be no construction of any kind within the Common
Elements except that community improvements may be constructed if the Board so authorizes (1)
the construction of such improvements, and (2) assessment for such improvements. Also, any such
improvements would be subject to the acquisition of all required permits from governmental
agencies. This Section shall not limit or prohibit Declarant (and no Member’s consent shall be
necessary), during the development period, from constructing or altering any such improvements to
any Common Element or any common maintenance area, which Declarant in Declarant’s sole
discretion, deems for the benefit and enhancement of said areas in the Association in general.
6.9: Dumping in Common Elements or Easements.
No trash, construction debris, or waste, plant or grass clippings or other debris of any kind, nor any
hazardous waste, (as defined in federal, state or local law regulation) shall be dumped, deposited or
placed on any Common Elements or easements. The Declarant (during the Development Period)
and the Board, thereafter, shall retain the rights for enforcement and initiation of penalties for
violations of this policy.
6.10: Landscaping and Fencing.
No structures, items or landscaping of any kind, including fences, walls or shrubs, may be built or
placed within any right of way easements or other easements as delineated on the plat except as
deemed appropriate by the Board. This prohibition shall not apply to the landscaping and any
improvements in the Common Elements installed by the Declarant, nor shall this Section prohibit
the Association from installing additional improvements or landscaping within the designated
Common Elements, nor shall this section prohibit the installation of fences as may be otherwise
allowed in this Declaration, nor shall this section prohibit the installation of landscaping on private
Unit areas encumbered by utility easements not otherwise restricted in this Declaration. Also, this
prohibition shall not apply to landscaping of front or side yards of Units extending to the edge of the
curb or sidewalk.
6.11: Management.
Each Owner expressly covenants that the Declarant (during the development period) and the board
thereafter, may delegate all or any portion of management authority to a managing agent, manager
or officer of the Association and may enter into such management contracts or other service
contracts to provide for the maintenance of the Common Elements and any portion thereof. Any
management agreement or employment agreement for maintenance or management may be
terminable by the Association without cause upon not more than ninety (90) days written notice
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thereof. (However, this shall not be applicable if the management agreement provides for any other
specific termination.) The term of any such agreement shall not exceed one year, renewable by
Agreement of the parties for successive periods. Each Owner is bound to observe the terms and
conditions of any management agreement or employment contract, all of which shall be made
available for inspection by any Owner upon request. Any fees or salary applicable to any such
management employment or service agreement shall be assessed to each Owner.
ARTICLE SEVEN: ASSESSMENTS
7.1: Covenants for Maintenance Assessments.
7.1.1
Each Owner of a Unit by acceptance of a deed therefor, whether or not it shall be so expressed
in any deed or other conveyance, is deemed to pay to the Association any assessments duly
levied by the Association as set forth in this Declaration. Each Unit is allocated 1/29 of the
common expenses based on there being a total of 29 Units in the VISTA AT MILL POND Plat.
7.1.2
The assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge
and a continuing lien upon the Unit against which each such assessment is made. Such lien may
be foreclosed by the Association in like manner as a Mortgage or Deed of Trust on the property,
either judicially or non-judicially as set forth in this Declaration.
7.1.3
Each assessment, together with interest, costs, and reasonable attorney's fees, shall also be the
personal obligation of the person who was the Owner of the Unit assessed at the time the
assessment fell due. The personal obligation shall not pass to the Owner's successors- in-interest
unless expressly assumed by them. The new Owner shall be personally liable for assessments
which become due on and after the date of sale or transfer.
7.2: Purpose of Regular Assessments.
The assessments levied by the Association shall be used exclusively for the purpose of promoting
the recreation, health, safety and welfare of the residents of the real property, including the
improvement, repair and maintenance of the Common Elements and the services and facilities
related to the use and enjoyment of said areas, for the payment of insurance premiums on the
Common Elements, and for the maintenance of other areas as provided for in this Declaration.
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7.3: Board or Declarant to Fix Assessments.
7.3.1 Association Budget.
The Board of Directors shall prepare, or cause the preparation of, an operating budget (the
“Budget”) for the Association for each calendar year. The budget shall set forth sums required
by the Association, as estimated by the Board, to meet its monthly common expenses. Regular
assessments on each Unit shall be paid quarterly or annually as decided by the Board and shall
commence on all Units that have been created upon the conveyance of the first Unit; however,
the Declarant may delay commencement of assessments for some or all of the common expenses
in which event the Declarant must pay all the common expenses that have been delayed. The
members of the Association who are obligated to pay regular assessments based on a particular
budget may reject said budget at a special meeting of the Association by a majority vote. If a
budget is rejected, the prior year's budget shall remain in effect as provided herein.
7.3.2 Amount of Regular Assessment.
The Board shall make reasonable efforts to determine the amount of the regular assessment
payable by each Owner for an assessment period at least 30 days in advance of beginning of
such assessment period. Notice of the regular assessment shall thereupon be sent to each Owner;
provided, however, that failure to notify an Owner of the amount of a regular assessment shall
not render such regular assessment void or invalid and each Owner shall be obligated for such
regular assessment even if no notice is given, and/or notice is given late, Any failure by the
Board, before the expiration of any assessment period, to fix the amount of the regular
assessment hereunder for the next assessment period, shall not be deemed a waiver or
modification in any respect of the provisions hereof or a release of any Owner from the
obligation to pay the regular assessment, or any installment thereof, for that or any subsequent
assessment period.
7.3.3 Assessment Period.
The assessment period for regular assessments shall be a calendar year. The regular assessment
for the preceding assessment period shall continue until a new regular assessment is approved.
Upon any revision by the Association of the Budget during the assessment period for which each
Budget was prepared, the Board shall, if necessary, revise the regular assessment levied against
the Owners and give notice of the same in the same manner as the initial levy of a regular
assessment for the assessment period. The assessment period for any other Assessment shall be
as determined by the Board.
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7.3.4 Levy of Regular Assessment.
In order to meet the costs and expenses projected in its budget, the Board shall determine when it
shall levy upon every Unit Owner a regular assessment. The Association’s budget shall be
divided by the number of Units to determine the amount of the regular assessment applicable to
each Unit. The Association’s budget shall be divided by the number of Units to determine the
amount of the regular assessment applicable to each Unit.
7.3.5 Special Assessments.
In addition to the assessments authorized above, the Association by its Board of Directors may
levy, in any year, a special assessment applicable to that year only, for the purpose of replenishing
reserves, defraying or funding the cost of any construction or reconstruction, unexpected repair
or replacement of facilities in the Common Elements. Special Assessments maybe payable in a
lump sum or installments as determined by the Board. Assessments may be made based upon the
estimated cost of such work, prior to the work's commencement, provided such estimate has been
provided by a contractor retained by the Board for the purpose of such estimate. All special
assessments for construction of new facilities or acquisition of new equipment, which is not for
the upgrade, repair or replacement of existing construction or equipment, shall require the
approval as set forth in the By-Laws.
7.3.6 Specially Allocated Expense
Each Unit receiving front landscape maintenance shall pay to the Association a specially allocated
expense of $780.00 per year which shall be prorated if a Unit is sold during a year in which it is
receiving lawn maintenance. The expense shall be considered an assessment and shall be
collected as provided herein. (All fees/Assessments are subject to change based on current
association budgets.)
7.3.7 Rate of Assessment.
All specially allocated expenses, regular and special assessments shall be fixed at a uniform rate
for all Units, subject to dues.
7.4: Contribution to Working Capital Fund.
In connection with the close of escrow for the closing of the sale of each Unit to an Owner other
than the Declarant, the initial Owner of such Unit (including a participating builder who acquires
a Unit or Units from the Declarant) shall make a non-refundable working capital contribution
payment to the Association for the initial working capital fund (“Working Capital Fund”) which
contribution shall be in an amount equal to $750 per Unit (the “Initial Working Capital
Contribution”). The Initial Working Capital Contribution shall not be considered as an advance
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payment of any Assessments. An Owner that purchases from a Participating Builder a Unit for
which the Participating Builder made an Initial Working Capital Contribution shall reimburse
such amount to t he Participating Builder at the Close of Escrow for the purchase of such Unit
from the Participating Builder. The Working Capital Contribution may not be used to defray
expenses that are the obligation of the Declarant. (All fees/Assessments are subject to change
based on current association budgets.)
7.5: Waiver of Homestead or Exemption Rights under Law.
Each Owner hereby waives to the extent of any liens created pursuant to this Article, the benefit
of any homestead or exemption law in effect at the time any assessment or installment thereof
becomes due and payable pursuant to the terms hereof.
7.6: Certificate of Payment.
The Association shall, upon written demand, furnish a certificate in writing setting forth whether the
assessment(s) on a specified Unit has been paid or is owed. A reasonable charge may be made for
the issuance of the certificate. Such certificate shall be conclusive evidence of payment of any
assessment stated to have been paid or owed.
7.7: Fines Treated as Special Assessments.
Any fines levied by the Association pursuant to RCW Chapter 64.90 (or successor statute
authorizing the imposition of fines) shall be treated as a special assessment of the Owner fined and
may be collected by the Association in the manner described in this Declaration.
7.8: Negligence of Unit Owner.
To the extent that any expense of the Association is caused by the willful misconduct or gross
negligence of any Unit Owner or that Unit Owner’s tenant, guest, invitee or occupant, the
Association may assess that expense against the Unit Owner’s Unit after notice and an opportunity
to be heard, even if the Association maintains insurance with respect to that damage or common
expense. Furthermore, to the extent that any expense of the Association is caused by the negligence
of any Unit Owner or Unit Owner’s tenant, guest, invitee or occupant, the Association may assess
the expense against the Unit Owner’s Unit after notice and an opportunity to be heard to the extent
that the Association’s deductible and any expenses are not covered under any insurance policy
issued to the Association.
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ARTICLE EIGHT: COLLECTION OF ASSESSMENT
8.1: Lien Personal Obligation.
All assessments, together with interest and the cost of collection shall be a continuing lien upon the
Unit against which each such assessment is made. The lien shall have all the incidents of a mortgage
on real property. 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 the Unit at the time the
assessment was due. No Owner may waive or otherwise avoid liability for assessments by non-use
of the Common Elements or abandonment of the Unit.
8.2: Delinquency.
If any assessment is not paid within thirty (30) days after its due date, the assessment may bear
interest from said date at twelve percent (12%), or, in the event that twelve percent (12%) exceeds
the maximum amount of interest that can be charged by law, then the highest permissible rate as
provided for by law. A late charge of $100.00 per month shall be charged for any payment more
than ten (10) days past due. Each Member hereby expressly grants to the Association, or its agents,
the authority to bring an action against each Member personally for the collection of such
assessments as a debt and to enforce lien rights of the Association by all methods for the enforcement
of such liens, including foreclosure by an actions brought in the name of the Association in a like
manner as a mortgage of real property, and such Member hereby expressly grants to the Association
the power of sale in connection with such liens. The liens provided for in this section shall be in
favor of the Association and shall be for the benefit of the Association. The Association shall have
the power to bid at a foreclosure sale and to acquire, hold, lease, mortgage and convey any Unit
obtained by the Association. Checks returned as NSF shall incur a fee of $100.00 and may be
redeposited or returned at the Association’s option. In the event of a check being returned as NSF,
late fees and interest shall apply until dues are made current.
8.3: Enforcement of Assessments.
The Board may take such action as is necessary, including the institution of legal proceedings and
Rent Interception if the Unit Owner rents the Housing Unit, to enforce the provisions of this Article.
In the event the Board begins an action to enforce any such rights, the prevailing party shall be
entitled to its attorney’s fees, costs and expenses incurred in the course of such enforcement action
as provided in this Declaration.
8.4: Lien May be Foreclosed.
The lien for a delinquent assessment may be foreclosed by the Board acting on behalf of the
Association in the event the Unit Owner at the time the action is commenced owes a sum equal to
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at least three months of common expense assessments and the Board approves the commencement
of a foreclosure action specifically against that Unit. The Association’s lien may be foreclosed
judicially in accordance with Chapter 61.12 RCW subject to any rights of redemption under RCW
Ch. 8, 6.23 RCW. The lien may be enforced non-judicially in the manner set forth in Ch. 61.24
RCW for the non-judicial foreclosure of the Deed of Trust and acquired by the Act there is herein
granted the common interest community in trust to First American Title Insurance Company, 2910
S Meridian Avenue, Suite 210, Puyallup, WA 98373 to secure the obligations of the Unit Owners
to the Association for the payment of assessments. This grant does hereby include the power of sale
and specifically provides that the Units are not used principally for agricultural purposes, and
furthermore the power of sale herein is operative in the case of default on the obligation to pay
assessments. The Association may purchase the Unit at the foreclosure sale and acquire, hold, lease,
mortgage, or convey the Unit. Upon an expressed waiver in the complaint of any right to a
deficiency judgment in a judicial foreclosure action, the period of redemption is eight months. This
grant is given in accordance with Section 318(13)(b) of the Act.
ARTICLE NINE: BUILDING, USE, AND ARCHITECTURAL RESTRICTIONS
9.1: Appointment of ACC
The Declarant shall appoint either representatives or members of the Association to serve on the
ACC. The Declarant reserves the right to appoint one or more representatives or members of the
ACC. This right shall automatically terminate at such time as the Declarant has completed the
Transition within VISTA AT MILL POND. All decisions of the majority of the members of the
ACC shall be finalized by the Board of Directors, (unless the Board has waived such oversite) and
are binding. At the expiration of the time period in which the Declarant has the right to appoint
members to the ACC then the Board of the Association shall appoint up to three members of the
ACC or if members of the ACC resigns and no replacements assume that office then the Board shall
act as the ACC until members of the ACC are appointed or take office. Members of the Board of
Directors may also serve as members of the ACC, provided they have been appointed as set forth
above.
9.2 Authority of ACC after Development.
At the expiration of the Declarant’s management authority, the ACC shall have the authority and
obligation to manage and administer the review of building plans, specifications and plot plans and
such other submissions as described in Section Four herein, and to enforce these covenants,
conditions and restrictions. Such authority shall include all authority provided for the ACC in the
Association’s Articles, Bylaws, Community Compliance Guidelines, as initially adopted, or as
amended, and all the authority granted to the ACC by this Declaration.
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9.3: Delegation of Authority of ACC.
The ACC or the Declarant may delegate any of its duties, powers, or functions described in this
Article to any person, firm, or corporation.
9.4: Approval by ACC Required.
No construction activity of any type including clearing and grading, cutting or transplanting of
significant natural vegetation may begin on a Unit or Common Elements and no building, structure,
fence or other improvement shall be erected, placed or altered on any Unit or Common Elements
until, at a minimum, the building plans, specifications, Unit plans, and landscape plan showing the
nature, kind, shape, height, materials, exterior color and location of such building, structure or other
improvements have been submitted to the ACC and approved in writing by the Board or its
authorized representative. Further, no fences, hedges or walls shall be erected or altered, and no
significant exterior changes shall be made to any building including, but not limited to, exterior color
changes, additions or alterations until such written approval shall have been obtained.
9.5: Time Limits.
If the ACC or its authorized representative shall fail to notify the Owner of its action for a period of
thirty (30) days following the date of the submission of the required information to the ACC, or its
authorized representative, the Owner may proceed with the proposed work notwithstanding the lack
of written approval by the ACC or its authorized representative. The required information shall be
considered submitted to the ACC upon acknowledged delivery of a complete set of all required
information to the person designated to receive such items by the ACC or by mail three days after
deposit in the U.S. Mail, postage prepaid, certified, return receipt requested, to the ACC in care of
the Board of Directors of the Association at the address designated in the most recent notice of
assessment by the Board, or at such other address as is designated by the Board by written notice to
the Members.
9.6: Guidelines
The ACC may adopt and amend, subject to approval by the Board, written guidelines to be applied
in its review of plans and specifications, in order to further the intent and purpose of this Declaration
and any other covenants or restrictions covering real property. If such guidelines are adopted, they
shall be available to all interested parties upon request.
9.7: Meetings.
The ACC shall meet as is necessary to review any plans or specifications provided pursuant to this
Section and shall keep and maintain a record of all actions taken at meetings or otherwise.
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9.8: No Waiver.
Approval by the ACC of any plans, drawings or specifications shall not be a waiver of the right to
withhold approval of any similar plan, drawing, specification or matter submitted for approval.
9.9: Consultation.
The ACC may retain and consult persons or entities to assist in the evaluation of plans submitted for
review. Upon notice to the Unit Owner, the Unit Owner will be responsible to reimburse the
Association for any costs incurred for the consultation.
9.10: Appeals.
After the Development Period, upon written request of a party aggrieved by the Board decision of
an ACC’s submission, the Board and ACC will review the submission and based on a majority vote
of both the Board and the ACC, a final decision should be made. The Board shall provide, through
guidelines, a procedure by which a decision was made. The Board may choose, in its discretion, to
limit the scope of such appeal and provide time limitations for appeals to be made to the Board.
9.11: Enforcement.
The ACC may recommend and request that the Board initiate legal proceedings to enforce the terms
of these covenants or orders of the ACC. Legal proceedings may only be instituted, however, after
approval of the Board.
9.12: No Liability.
The ACC, its agents and consultants shall not be liable to the Association, to its members, to any
Owner or to any other person for any damage, loss or prejudice resulting from any action or failure
to act on a matter submitted to the ACC for determination, or for failure of the ACC to approve any
matter submitted to the ACC. The ACC shall not be liable for any damage, loss or prejudice resulting
from any action by a person who is delegated a duty, power or function by the ACC. Section 9.4
AND THE REVIEW BY THE ACC OR APPROVAL BY THE BOARD SHALL NOT BE
REQUIRED AS IT RELATES TO ANY IMPROVEMENT OR CONSTRUCTION
ACTIVITY UNDERTAKEN BY THE DECLARANT ON ANY UNIT OWNED BY THE
DECLARANT.
9.13: Fees.
The ACC may charge a fee for the review of any matter submitted to it. Any fee schedule adopted
by the ACC must be approved by the Board and notice sent to the Members.
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9.14: Temporary Structures Prohibited.
No basement, tent, shack, garage, barn or any outbuilding or buildings or any structure of a
temporary or moveable character erected or placed on the real property shall at any time be used as
living quarters except as specifically authorized by the ACC.
9.15: Nuisances.
No noxious or undesirable thing, activity or use of any Unit in the real property shall be permitted
or maintained. If the ACC or Board shall determine that a thing or use of property is undesirable or
noxious, such determination shall be conclusive. The ACC may recommend, and the Board may
direct, that steps be taken as is reasonably necessary, including the institution of legal action or the
imposition of fines in the manner authorized by RCW Chapter 64.90, to abate any activity, remove
anything or terminate any use of property which is determined or described in this Declaration to
constitute a nuisance.
9.16: Building Type.
No structures of any kind shall be erected or permitted to be maintained on any Unit other than single
family residences, garages, workshops and structures normally accessory to such residences which
have been approved in accordance with the provisions of the Declaration. No carports will be
allowed, and all garages must have doors. All dwellings shall be of a “stick-built” variety. Mobile
and manufactured homes, and modular homes are specifically not permitted. Each residence shall
incorporate a minimum two car garage unless otherwise approved by the ACC, designed and
constructed as an integral part of said residence. In special circumstances, a detached garage or
storage building may be approved by the ACC. Unless otherwise approved by the ACC, each
residence shall have a minimum of 2,000 square feet of living space.
9.17: Use of Units.
All Units within the real property shall be used solely for private single-family residential purposes
and not for business purposes, provided (a) home business subject to the approval of the Board may
be permitted provided that no customers, guests or business invitees come to the Unit on which said
home business is located and there aren’t any signs or advertising of any nature with respect to said
home business; and (b) that within such single family residences the said home business doesn’t
produce any noxious sounds or emissions. Day Care businesses, Animal boarding, breeding, and
grooming are expressly prohibited. Neither the Declarant, the Board and/or the Association shall be
deemed to be a partner or joint venture and/or an interest in such business operation to the extent
permission to operate such business is authorized.
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9.18: Limitation of Animals.
No animals, except dogs, cats, caged birds, fish in tanks, and other small household pets, will be
permitted on Units. Dogs shall not be allowed to run at large or to create a disturbance for other
Owners in the plat. No animals will be allowed to be leashed, chained, or otherwise tied to any
portion of the front or sides of residences. Leashed animals are permitted within rights-of-way when
accompanied by their Owners. The person accompanying the animal must exercise “scooping” of
animal waste. All pens, runs, and pet enclosures of any kind must be screened from view of other
Residences and Units and must be approved by the Architectural Control Committee prior to
construction and shall be kept clean and odor free at all times. If the investigation of the Board
indicates that animals are kept in violation of this Section or are creating a nuisance, the Declarant,
during the development period, or the Board, thereafter, will give the Owner ten (10) days written
notice of the violation. Such violation must be remedied by the Owner within such ten (10) day
period. Failure to comply with the written notice will result in a fine as outlined in the fine structure
for the Association. Any fine imposed by this Section shall be the personal obligation of the fined
Owner and a lien on the Unit of the fine owned. The Association shall be entitled to attorneys’ fees
and costs for any action taken to collect such fines in accordance with the provisions of this
Declaration.
9.19: Completion of Construction.
The construction of any building on any Unit, including painting and all exterior finish, shall be
completed within eight months of beginning of construction to present a finished appearance when
viewed from any angle. The building area shall be kept in a reasonably clean and workman-like
manner during construction. All Units shall be kept in a neat and orderly condition, free of brush,
vines, weeds and debris. The grass thereon shall be cut and mowed at sufficient intervals to prevent
creation of a nuisance or fire hazard.
9.20: Landscape Completion and Standards.
The entire yard, including up to the edge of the hard surface of the street fronting any Unit, shall be
landscaped in accordance with the provisions of this section and said landscaping shall be installed
and completed prior to the date of occupancy. “Front yard” shall be defined as the Unit area
extending from the front property line back to a line measured parallel with the front property line
which would coincide with the front wall of the main dwelling on the Unit, exclusive of any garage
projections. Unless otherwise approved by the ACC, at least fifty (50%) percent of every front yard
less driveway and walk shall be maintained as lawn.
The entire landscaping as approved by the ACC with regard to the remaining portions of the Unit
shall be installed within one hundred and twenty (120) days of occupancy. If inclement weather
conditions prevent the timely installation of said landscaping improvements for either side or back
yards, the Unit Owner must make application to the ACC for the extension of time until weather
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conditions sufficiently improve.
9.21: Antennas, Satellite Reception.
Satellite dishes of no more than one meter in diameter or diagonal measurement are permitted on
the real property with ACC approval of the location of the satellite dish in the manner described in
this Declaration. Except as provided above, no radio or television antenna or transmitting tower or
satellite dish shall be installed on the exterior of any home without approval of the ACC obtained
pursuant to Section Four, and a showing by the Owner that such installation will be visually shielded
from the view of the residents traveling upon streets located around the real property.
9.22: Setbacks.
No building shall be located on any Unit nearer to the front Unit line or nearer to the side street than
the minimum building setback lines adopted by the governmental authority with jurisdiction over
the real property.
9.23: Roofs.
All roofs are to be of a fire-resistant material, such as concrete shingles, tile, architectural grade
composition roofing (30 year minimum) of a color approved by the ACC or a similar material, unless
otherwise approved by the ACC and should match the overall look of the community.
9.24: Fences, Walls.
Fences, walls, or shrubs are permitted on side and rear property lines, up to within the greater of (i)
twenty feet of the front property line; or (ii) the distance between the front Unit line and the front
wall (facade) of the primary residence, subject to (i) the approval of the ACC; and (ii) determination
of whether such fence, walls or shrubs would interfere with utility easements reflected on the face
of the plat and other easements elsewhere recorded. In no event shall any fence be allowed between
the front Unit line and the front wall facade of the primary residence. Fences shall not be allowed
on portions of side yards of houses beyond the front line of the building constructed on a Unit. No
barb wire, chain-link, or corrugated fiberglass fence shall be constructed on any Unit, except that
chain-link fencing for a sports facility enclosure may be considered for approval by the ACC upon
request. This approval shall not be required for any fences constructed by the Declarant. All fences
of any size constructed on the premises and wherever located must be constructed, painted (or
stained, if applicable) in accordance with the Association guidelines for design and color. Any fence
constructed which fails to conform to the guidelines shall be removed by the Owner or modified to
conform to the guidelines. The board or the ACC may change these guidelines from time to time,
and upon adoption of the change in fence guidelines, this Article shall be deemed to have been
amended to conform to the new guidelines as adopted. In the event that an alternative type of fence
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(such a different design or chain-link material) is required to comply with the requirements of any
governmental jurisdiction, such alternative type of fence shall be exempt from these restrictions and
may be constructed as required by the governmental jurisdiction.
9.25: Underground Utilities Required.
Underground utilities are required. Except for any utility, facilities or equipment provided by the
Declarant, all electrical service, telephone lines and other outdoor utility lines shall be placed
underground.
9.26: Vehicle Parking and Storage.
Operable vehicles may be parked on streets and approved driveways or parking areas, which shall
be hard surfaced, or within garages. No storage of vehicles, boats, trailers, multi axle trucks,
campers, recreational vehicles or other equipment or device shall be permitted on any Unit or on
roads which are in open view from any Unit or right of way. This provision shall not exclude the
parking of up to a combination of two (2) automobiles and regular sized pick-up trucks on the
designated driveway or parking areas on the Unit as set forth above. A Unit Owner may park on the
driveway or the public road a recreational vehicle and/or boat trailer for a period not to exceed 24
hours. The storage of any boats, trailers, multi axle trucks, campers, and recreational vehicles must
be adequately screened from the view (behind a fence or similar screening material which must be
approved by the ACC) the storage of such vehicles must have the approval of the Board. Upon 48
hours’ notice to the Owner of an improperly parked vehicle, the Board has the authority to tow at
the Owner’s expense, said vehicle. Notwithstanding the foregoing, Owners who have visiting guests
intending to stay in such a vehicle may secure written permission from the Board for such guests to
park the vehicle upon the Unit owned by the Owner for a maximum period of one (1) week. Such a
privilege shall only exist, however, after the written permission has been obtained from the Board.
9.27: Signs.
No signs, billboards, or other advertising structures or device shall be displayed to the public view
on any Unit except one sign not to exceed three square feet in area may be placed on a Unit to offer
the property for sale or rent and with the exception of any entry monumentation and signage which
may be installed by the Declarant. Political yard signs, not more than three square feet in area, of a
temporary nature, not to exceed thirty days will be allowed during campaign periods on Units.
Within five days after the date of the election to which the sign refers, such signs must be removed
from Units. This section, including but not limited to the restrictions on the number of signs and
sign size limit shall not apply to signs approved under this Declaration by the Declarant during the
development period.
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The Declarant may establish, for the duration of the development, signage guidelines and standards
for Unit identification, realtor identification signs, “for sale” signs and other signage that may be
placed by parties other than the Declarant on any part of the Units within VISTA AT MILL POND,
the Common Elements, or the public rights-of-way. The Declarant may also develop an overall
theme for signage within the project, including specific requirements for physical sign installations
and size requirements, which theme will then become a part of the established guidelines and
standards for signage in VISTA AT MILL POND during the Development Period.
During the Development Period, the Declarant shall have the sole and exclusive right to approve, in
the Declarant’s sole discretion, any and all signage installations within any part of the real property
encompassed within VISTA AT MILL POND including the adjacent rights-of-way. Each Owner
of a Unit in VIST A AT MILL POND or real estate agent on behalf of an Owner shall submit any
proposed signs to the Declarant for approval prior to the installation of the signs.
Any signs not specifically approved by the Declarant found anywhere within VISTA AT MILL
POND, the Common Elements, or on any Unit, or on adjacent rights-of-way may be promptly
removed and disposed of by Declarant. This absolute right of the Declarant to remove unauthorized
signs from the property or adjacent rights-of-way specifically includes, but is not limited to, the
Declarant’s right to remove any and all signs placed by real estate agencies or their representatives,
including temporary reader board signs and other signage installations.
No person, including but not limited to, the person or persons owning any interest in the signs
removed, shall be entitled to compensation of any kind for signs removed by Declarant pursuant to
the section.
The Board may cause any sign placed on the property or any adjacent rights-of-way in violation of
this Declaration to be removed and destroyed without compensation of any kind to anyone including,
but not limited to any persons having any Ownership interest in the sign. This section shall not apply
to signage placed by Declarant.
Additional signage may be installed by Declarant during the development period to promote the sale
of Units or houses and to promote Declarant’s project and company and representatives.
Notwithstanding anything in this Declaration of the contrary, signs placed by the Declarant shall not
be subject to any sign restrictions and specifically shall not be subject to the limitations set forth in
this Declaration on the number of signs and size of signs. The Declarant shall also not be subject to
any guidelines or standards established by Declarant for other parties pursuant to this Declaration.
Under no circumstances shall the Declarant be liable for, or be required to pay, for all or any part of
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the construction, installation or maintenance of any signs which are placed on any Unit not owned
by the Declarant. This section shall apply even if Declarant requires an Owner to place a sign
pursuant to this Declaration.
9.28: Easements for Enforcement Purposes.
Owners hereby grant to the Association an express easement for the purpose of going upon the Units
of Owners for the purpose of removing vehicles or other similar objects which are parked or stored
in violation of the terms of this Declaration or the Community Compliance Guidelines.
9.29: Excavation and Fill.
Except with the permission of the ACC, or except as may be necessary in connection with the
construction of any approved improvement, no excavation or fill shall be made, nor shall any dirt
be removed from any Unit herein.
9.30: Drainage.
The Owner of any Unit shall not take any action which would interfere with surface water
drainage across that Unit either through natural drainage or by drainage easements. Any change of
drainage, either through natural drainage areas or through drainage easements must be approved
by the ACC. All drainage improvements must be completed prior to occupancy in accordance
with the drainage plan.
9.31: Garbage and Refuse.
No garbage, refuse, rubbish, cuttings or debris of any kind shall be deposited on or left to accumulate
upon any Unit. All equipment for the storage or disposal of such materials shall be kept in a clean
and sanitary condition. All clothes lines, garbage cans, equipment, coolers or wood piles shall be
walled in or otherwise suitably screened to conceal them from the view of neighboring Units,
Common Elements, or streets. Plans for all enclosures of this nature must be approved by the ACC
prior to construction.
9.32: Tanks, Etc.
No elevated tanks of any kind shall be erected, placed, or permitted on any part of such premises.
Any tanks for use in connection with any residence constructed on such premises, including tanks
for the storage of fuels, must be buried or walled sufficiently to conceal them from the view from
neighboring Units, streets, or streets and must have ACC approval. This section does not apply to
the Declarant while homes are being constructed.
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9.33: Auto Repair.
No auto repairs shall be permitted except within enclosed garages which are kept closed and must
not produce a sound nuisance to neighboring Units. The only repairs permitted on the balance of
the real property are occasional casual repairs and maintenance activities such as tune-ups or oil
changes.
9.34: Exterior Finish.
The exterior finishes on the houses shall be decided by the Declarant and any changes to the exterior
finishes after Transition shall be submitted to the ACC for approval. The entire residence must be
painted or stained in colors approved by the ACC.
9.35: Driveways.
All driveways shall be paved with the same type(s) of material originally installed by the declarant
and kept in a clean and safe condition. Any changes to the material used shall be approved by the
ACC.
9.36: Maintenance of Structures and Grounds.
Each Unit Owner shall maintain the Unit and the residence located thereon in a clean and attractive
condition, in good repair and in such fashion as not to create a fire hazard or a nuisance. Each Owner
shall be responsible for removing any support poles or other structures intended to support the early
growth of trees when they mature, however, no later than 1 year from occupancy or planting,
whichever is later.
9.37: Firearms or Fireworks.
The use of firearms is expressly prohibited. The use of Fireworks is expressly prohibited in any
Common Element and shall otherwise comply with local authority.
9.38: Dirt bikes and or ATVs.
No unlicensed motor vehicles, including motorcycles, motor scooters, ATV's etc., shall be permitted
on any street within the plat, nor on any Common Elements. Motorized bicycles and dirt bikes also
shall not be permitted on any Common Elements unless operated in areas specifically approved by
the Association.
9.39: Damage Repair.
All Owners agree to repair immediately any damage to any utilities adjacent to their Unit or Units,
in the event any of the utilities are cracked, broken, or otherwise damages as a result of dwelling
construction activities, or other activities by Owner, by persons acting for Owner, or by persons in
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or around the property at the request and/or with the consent of the Owner.
9.40: Building Materials.
All homes constructed on each Unit shall be built of new materials, with the exception of "decor"
items such as used brick, weathered planking, and similar items. The Architectural Control
Committee will determine whether a used material is a “décor” item. In making this determination,
the ACC will consider whether the material harmonizes with aesthetic character of VISTA AT MILL
POND and whether the material would add to the attractive development of the subdivision. All
siding and trim are to be re-sawn wood and/or vertical or horizontal LAP type siding, brick, authentic
stone siding, Hardie Board or equivalent, or LAP siding of a color approved by the ACC.
The exterior of all construction on any Unit shall be designed, built and maintained in such a manner
as to blend in with the natural surroundings and landscaping. Exterior colors must be approved by the
Architectural Control Committee. Exterior trim, fences, doors, railings, decks, eaves, gutters and the
exterior finish of garages and other accessory buildings shall be designed, built and maintained to be
compatible with the exterior of the structure they adjoin.
The Architectural Control Committee or Board will establish an approval process and color guidelines.
Any change of color as to the exterior of any existing home within VISTA AT MILL POND will be
subject to the same approval process.
9.41: Accessory Building.
No garden, tool, or outside sheds or structures shall be installed, constructed or placed on any Unit
without the prior approval of the ACC, who shall have the authority to grant or deny permission or
to grant permission subject to such conditions as in the discretion of the ACC they shall require as
it relates to location, color, and type of material.
9.42: Maintenance of Landscaping within Public Right of Way
The landscape maintenance of those portions of the public right of way buffer on 104th Ave SE SE
shall be the responsibility of the Association and the City of Yelm shall have no responsibility for
the maintenance or service of said landscaping, unless otherwise specified by agreement or condition
with the jurisdiction.
9.43: Codes.
All construction shall conform to the requirements of the State of Washington for installing electric
wires and equipment, and the uniform codes (building mechanical, plumbing), in force at the
commencement of the construction, including the latest revisions thereof.
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9.44: Entry for Inspection.
Any agent or member of the Declarant, the Architectural Control Committee, or the Board may, at
any reasonable predetermined hour upon 24 hours’ notice during construction or exterior
remodeling, enter and inspect the structure to determine if there has been compliance with the
provisions of this Declaration. The above recited individuals shall not be guilty of trespass for such
entry or inspection. There is created an easement over, under, and across, residential Units for the
purpose of making and carrying out such inspections.
9.45: Authority to Adopt Additional Rules and Restrictions.
The Association shall have the authority to adopt Community Compliance Guidelines governing
the use of the real property and conduct within the community, provided such guidelines are
consistent with the purposes of the Declaration, and to establish penalties/fines for violation of those
guidelines. If Community Compliance Guidelines are adopted, they, along with the established
penalties/fines, shall be available to all Members upon request.
9.46: Enforcement.
The Association, or the Declarant during the Development Period, may, but is not required to, take
an action to enforce the provisions of the Declaration available to it under law, including but not
limited to imposition of fines as authorized by RCW Chapter 64.90, specific performance, injunctive
relief and damages. Any Member may also enforce the terms of this Article (although a Member
may not impose a fine as authorized by RCW Chapter 64.90) but the Member must first obtain an
order from a court of competent jurisdiction entitling the Member to relief. In the event that a
Member takes any action to enforce the terms of this Article 9, the Association shall not be in any
way obligated to join in such action, or pay any of the attorney’s fees, costs and expenses incurred in
such action.
ARTICLE TEN: EASEMENTS
10.1: Easement for Encroachments.
Each Unit is, and the Common Elements are subject to an easement for encroachments created by
construction, settlement, and overhangs as designed or constructed by the Declarant, and a valid
easement for encroachments and for maintenance of the same as long as said improvements remain.
10.1: Easements on Exterior Unit Lines.
In addition to easements reserved on the plat of the real property or shown by instrument of record,
including the previous Declaration in which easements were granted and reserved which shall
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continue to be in full force and effect, easements for utilities and drainage are reserved for the
Declarant or its assigns. Within all of the easements, no structure, planting or fill material shall be
placed or permitted to remain which may, in the opinion of the Board or ACC, damage or interfere
with the installation and maintenance of utilities, or which may obstruct or retard the flow of water
through drainage channels and the easements. The easement area of each Unit and all improvements
within it shall be maintained continuously by the Owner of such Unit, except those improvements
for which a public authority, utility company or the Association is responsible.
10.2: Association’s Easement of Access.
The Association, the ACC, and its agents shall have an easement for access to each Unit and to the
exterior of any building located thereon during reasonable hours as may be necessary for the
following purposes: (a) cleaning, maintenance, or repair of any home or Unit as provided in this
Declaration; (b) repair, replacement or improvement of any Common Element accessible from that
Unit; (c) emergency repairs necessary to prevent damage to the Common Elements or to another
Unit, or to the improvements thereon; (d) cleaning, maintenance, repair or restoration work which
the Owner is required to do but has failed or refused to do; (e) cleaning, maintenance, repair and
restoration work, which the Association is obligated to perform under the terms of this Declaration;
and (f) all acts necessary to enforce these Covenants.
10.3: Easement for Declarant.
Declarant shall have an easement across all Common Elements for ingress, egress, storage and
placement of equipment and materials, and other actions necessary or related to the development or
maintenance of the real property.
ARTICLE ELEVEN: MORTGAGEE PROTECTION
11.1: Mortgagees.
Notwithstanding and prevailing over any other provisions of the Declaration, the Association’s
Articles of Incorporation or Bylaws, or any community compliance guideline or management
agreements, the following provisions shall apply to and benefit each Institutional First Mortgagee
(“Mortgagee”) which holds a Mortgage given for the purpose of obtaining funds for the construction
or purchase of a housing unit on any Unit or the improvement of any Unit.
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11.2: Liability Limited.
The Mortgagee entitled to the protection hereof shall not in any case or manner be personally liable
for the payment of any assessment or charge, nor for the observance or performance of any covenant,
restriction, rule, Association Article of Incorporation or Bylaw, or management agreement, except
for those matters which are enforceable by injunctive or other equitable relief, not requiring the
payment of money, except as hereinafter provided.
11.3: Mortgagee’s Rights during Foreclosure.
During the pendency of any proceeding to foreclose the Mortgage, the Mortgagee or the receiver, if
any, may exercise any or all of the rights and privileges of the Owner of the mortgaged Unit,
including but not limited to the right to vote as a Member of the Association to the exclusion of the
Owner’s exercise of such rights and privileges.
11.4: Acquisition of Unit by Mortgagee.
At such time as the Mortgagee shall become entitled to possession of the Unit, the Mortgagee shall
be subject to all of the terms and conditions of the Declaration, and the Articles, Bylaws, Community
Compliance Guidelines of the Association, including but not limited to the obligation to pay for all
assessments and charges accruing thereafter, in the same manner as any Owner; provided, however,
the Mortgagee shall acquire the title to said Unit free and clear of any lien authorized by or arising
out of any provisions of the Declaration which secure the payment of any assessment for charges
accrued prior to the date the Mortgagee became entitled to possession of the Unit.
11.5: Reallocation of Unpaid Assessment.
If it is deemed necessary by the Association, any unpaid assessment against a housing unit foreclosed
against may be treated as a common expense of other Units. Any such unpaid assessment shall
continue to exist as a personal obligation of the defaulting Owner of the respective Unit to the
Association.
11.6: Priority.
The lien of common expense assessments excluding any amounts for capital improvements which
shall become due in the absence of acceleration during six months immediately preceding the
institution of proceedings to foreclose the Association’s lien, shall have priority with respect to the
lien of any mortgage or other security interest placed on a Unit. The Association’s actual costs and
reasonable attorney’s fees incurred in foreclosing its lien but incurred after the notice the Association
has given the holder of said encumbrance under the provisions of Section 318(3)A to the extent said
reasonable attorney’s fees that have priority under the Act as defined above shall not exceed $2,000
or the amount equal to the six month’s dues referred to above, whichever is less.
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11.7: Mortgagee’s Rights
Any Mortgagee shall have the right on request therefor to (a) inspect the books and records of the
Association during normal business hours; (b) receive an annual audited financial statement of the
association within (90) days following the end of any fiscal year; and (c) receive written notice of
all meetings of the Association and designate a representative to attend all such meeting.
11.8: Limitation on Abandonment of Common Elements.
The Association shall not, without the prior written approval of sixty seven percent (67%) of the
Mortgagees, seek to abandon the Common Elements for reasons other than substantial destruction
or condemnation of the property.
11.9: Notice
If such notice has been requested in writing, Mortgagees shall be entitled to timely written notice
of: (a) substantial damage or destruction of any housing unit or any part of the Common Elements
or facilities; (b) any condemnation or eminent domain proceedings involving any housing units or
any portion of Common Elements or facilities; (c) any default under this Declaration or the Articles,
Bylaws or Community Compliance Guidelines of the Association by an Owner of any housing unit
on which it holds the mortgage which is not cured within thirty (30) days; (d) any sixty (60) day
delinquency in the payment of assessments or charges owed by the Owner of any housing unit on
which it holds the mortgage; (e) ten (10) days’ prior written notice of any lapse, cancellation or
material modification of any insurance policy or fidelity bond maintained by the Association; and
(f) any proposed action that requires the consent of a specific percentage of Mortgage
ARTICLE TWELVE: MANAGEMENT CONTRACTS
Each Member hereby agrees that the Association and the ACC may enter into agreements for the
performance of any or all of the functions of the Association and the ACC with such persons or
entities as the Association deems appropriate; however, any agreement for professional management
of the real property, or any other contract providing for services by the Declarant must provide for
termination by either party without cause after reasonable notice.
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ARTICLE THIRTEEN: INSURANCE
13.1 Coverage.
Commencing not later than the first conveyance of a Unit to a person other than the Declarant, the
Association must maintain in its own name to the extent reasonably available and subject to
reasonable deductions: a) property insurance on the Common Elements insuring against risks of
direct physical loss commonly insured against which insurance after application of any deductibles
must not be less than 80 percent of the actual cash value of the insured property at the time the
insurance is purchased and at each renewal date, exclusive of land, excavation and other items
normally excluded from property policies. In addition, the Association must maintain commercial
general liability insurance including medical payments, insurance in an amount to be determined by
the Board covering all occurrences commonly insured against for bodily injury and property damage
arising out of or in connection with the use, ownership, or maintenance of the Common Elements.
Any insurance policies procured must satisfy the requirements of Section 315(4) of the Act and any
loss must be adjusted as provided for under Section 315(5) of the Act.
13.2 Replacement, Repair after Loss.
In the event of the damage or destruction of the Common Elements covered by insurance written in
the name of the Association, the Association may, upon receipt of the insurance proceeds, and to
the extent of such proceeds contract to rebuild or repair such damaged or destroyed portions of the
Common Elements to as good a condition as they were when the loss occurred; provided, however,
that the Association’s election not to rebuild the Common Elements shall require the approval of
eighty percent (80%) of the Association. The Association may in its sole discretion contract with
any contractor for reconstruction or rebuilding of such destroyed portions of the Common Elements.
ARTICLE FOURTEEN: COMMUNITY COMPLIANCE GUIDELINES
The Declarant /or the Board of Directors is hereby authorized and empowered to adopt Community
Compliance Guidelines governing the use of the real property and the personal conduct of the
Members and their guests thereon, and to establish penalties for the infraction thereof, in the manner
described by RCW Chapter 64.90, the Bylaws and any resolutions passed by the Board. All Unit
Owners shall be given written notice of the Community Compliance Guidelines in the manner
required by RCW Chapter 64.90.
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ARTICLE FIFTEEN: REMEDIES AND WAIVER
15.1: Remedies Not Limited.
The remedies provided herein, including those for collection of any assessment or other charge or
claim against any Member, for and on behalf of the Association, the ACC, or Declarant, are in
addition to, and not in limitation of, any other remedies provided by law.
15.2: No Waiver.
The failure of the Association, the ACC, the Declarant or of any of their duly authorized agents or
any of the Owners to insist upon the strict performance of or compliance with the Declaration or any
of the Articles, Bylaws or rules or regulations of the Association, or to exercise any right or option
contained therein, or to serve any notice or to institute any action or summary proceedings, shall not
be construed as a waiver or relinquishment of such right for the future, but such right to enforce any
of the provisions of the Declaration or of the Articles, Bylaws or rules or regulations of the
Association shall continue and remain in full force and effect. No waiver of any provision of the
Declaration or of the Articles, Bylaws, rules or regulations of the Association shall be deemed to
have been made, either expressly or implied, unless such waiver shall be in writing and signed by
the Board of Directors of the Association pursuant to authority contained in a resolution of the Board
of Directors.
ARTICLE SIXTEEN: LIMITATION OF LIABILITY
So long as a member of the Board, the Committee, any of the Board's other committees, Declarant or
any agents of the foregoing has acted in good faith, without willful or intentional misconduct, upon
the basis of information possessed by such persons, then that person shall not be personally liable to
any Owner, the Association, or to any other person for any damage, loss, or claim on account of any,
omission, error, or negligence of such person, except this article shall not apply to the extent such acts,
omissions or errors are covered by the Association's insurance.
In connection with all reviews, acceptances, inspections, permissions, consents or approvals required
or permitted by or from either the Declarant, the Association or the Committee under this Declaration,
neither Declarant, the Association, nor the Committee shall be liable to any Owner or to any other
person on account of any claim, liability, damage or expense suffered or incurred by or threatened
against any Owner or such other person and arising out of or in any way relating to the subject matter
of any such review, acceptance, inspection, permission, consent or approval, whether given, granted,
withheld or denied.
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ARTICLE SEVENTEEN: CONDEMNATION
In the event of a partial condemnation of the Common Elements, the proceeds shall be used to restore
the remaining Common Elements, and any balance remaining shall be distributed to the Association.
In the event that the entire Common Elements is taken or condemned, or sold, or otherwise disposed
of in lieu of or in avoidance thereof, the condemnation award shall be distributed to the Association.
No proceeds received by the Association as the result of any condemnation shall be distributed to a
Unit Owner or to any other party derogation of the rights of the First Mortgagee of any Unit.
ARTICLE EIGHTEEN: GENERAL PROVISIONS
18.1: Binding Effect.
All present and future Owners or occupants of Units shall be subject to and shall comply with the
provisions of this Declaration, and the Bylaws and Community Compliance Guides of the
Association, as they may be amended from time to time and all such provisions shall be deemed and
taken to be covenants running with the land and shall bind any person having at the time any interest
or estate in such Unit, as though such provisions were recited and stipulated at length in each and
every deed and conveyance or lease thereof.
18.2: Enforcement by Court Action.
The Association, the Declarant, ACC, or any Unit Owner shall have the right to enforce, by any
proceedings at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges
now or hereafter imposed by the provisions of this Declaration. Should the Association or any Owner
employ counsel to enforce any of the foregoing covenants, conditions, reservations, or restrictions,
all costs incurred in such enforcement, including a reasonable fee for counsel, shall be paid by the
Owner found to be in violation of said condition, covenants, reservation, or restriction, or found to
be delinquent in the payment of said lien or charge.
18.3: Arbitration.
Any claim by the Association, any Owner or any occupant against the Declarant shall be settled by
arbitration in Thurston County in accordance with the arbitration rules and procedures set forth in
RCW 7.04 with a single arbitrator. In such arbitration, each party shall pay its own costs, witness
fees, and attorney’s fees and the fees charged by the arbitrator and costs of such proceeding shall be
borne equally.
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18.4: Enforcement by Self Help.
The Declarant, the ACC, the Association, or the duly appointed agent of either, may enter upon any
Unit, which entry shall not be deemed a trespass, and take whatever steps are necessary to correct a
violation of the provisions of this Declaration, provided, this provision shall not be construed as a
permission to breach the peace.
18.5: Condition Precedent to Action.
Prior to taking action either by court or by self-help, written notice shall be given to the offending
Unit Owner. Such notice shall specify the nature of the offense and shall also specify the action
necessary to cure. Such action shall also provide a reasonable opportunity to cure which, except in
the case of an emergency, shall not be less than 10 days.
18.6: Expenses of Action.
The expenses of any corrective action or enforcement of this Declaration, if not paid by the offending
Owner within thirty (30) days after written notice and billing, may be filed as a lien upon such Unit,
enforceable as other liens herein.
18.7: Costs and Attorney’s Fees.
In the event of legal action, the prevailing party shall be entitled to recover actual costs and attorney
fees. For the purposes of this Declaration "legal action" shall include arbitration, law suit, trial,
appeals, and any action, negotiations, demands, counseling or otherwise where the prevailing party
has hired an attorney. It is the intent of this provision to reimburse the prevailing party for all
reasonable attorney fees and actual costs incurred in defending or enforcing the provisions of this
Declaration, or the Owner's rights hereunder.
18.8: Failure to Enforce.
No delay or omission on the part of the Declarants or the Owners of other Units in exercising any
rights, power, or remedy provided in this Declaration shall be construed as a waiver or acquiescence
in any breach of the covenants, conditions, reservations, or restrictions set forth in the Declaration. No
action shall be brought or maintained by anyone whatsoever against the Declarants or the Board for
or on account of its failure to bring any action for any breach of these covenants, conditions,
reservations, or restrictions, or for imposing restrictions which may be unenforceable.
18.9: Severability.
Invalidation of any one of these covenants or restrictions by judgment or court order shall not affect
any other provisions which shall remain in full force and effect.
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18.10: Interpretation.
In interpreting this Declaration, the term "Person" may include natural persons, partnerships,
corporations, Associations, and personal representatives. The singular may also include the plural
and the masculine may include the feminine, or vice versa, where the context so admits or requires.
This Declaration shall be liberally construed in favor of the party seeking to enforce its provisions
to effectuate the purpose of protecting and enhancing the value, marketability, and desirability of
the real property by providing a common plan for the development of VISTA AT MILL POND.
18.11: Term.
This Declaration shall be effective for an initial term of 30 years, and thereafter by automatic
extension for successive periods of 10 years each, unless terminated, at the expiration of the initial
term or any succeeding 10-year term by a termination agreement executed by the then Owners of
not less than 75% of the Units then subject to this Declaration. Any termination agreement must be
in writing, signed by the approving Owners, and must be recorded with the County Auditor.
18.12: Perpetuities.
In the event that any provision of this Declaration violates the rule against perpetuities, such
provision shall be construed as being void and of no effect as of twenty one (21) years after the death
of the last surviving incorporator of the Association, or twenty one (21) years after the death of the
last survivor of all of the said incorporators’ children and grandchildren who shall be living at the
time this instrument is executed, whichever is later.
18.13: Method of Notice.
Any notice required by the Declaration or the Articles or Bylaws of the Association or the
Community Compliance Guides adopted by the Association shall be deemed properly given when
distributed by the owners preferred method of delivery if applicable or by personally delivered,
deposited in the United States mail, postage prepaid, or when sent electronically if provided by the
Unit Owner(s).
18.14: Successors and Assigns.
This Declaration binds and is for the benefit of the heirs, successors and assigns of Declarant, the
Declarant, the Members and the Owners.
ARTICLE NINETEEN: CONSTRUCTION AND SALES BY DECLARANT
Nothing in this Declaration shall limit, and as long as Declarant owns a Unit no Owner shall do
anything which shall interfere with, the right of Declarant to reasonably subdivide or re-subdivide
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any portion of the Property owned by Declarant, or to complete any construction of Improvements
on the Units owned by Declarant and the Common Elements, or to alter the foregoing and its
construction plans and designs, or to construct such additional Improvements on such Units and
Common Elements as Declarant deems advisable prior to completion and sale of the last Unit owned
by Declarant. Each Owner, by accepting a deed of a Unit from Declarant, hereby acknowledges that
the activities of Declarant may constitute a temporary inconvenience or nuisance to the Owners, but
nonetheless shall be permitted. Such right shall include, but shall not be limited to, erecting,
construction and maintaining on the Property such structures and displays as may be reasonably
necessary for the conduct of Declarant's business or completing the work of disposing of the Units
by sale, lease or otherwise.
Declarant may at any time use any Units owned by Declarant as models or real estate sales or leasing
and renting offices. This Declaration shall not limit the right of Declarant at any time prior to
conveyance of title by deed to the last Unit owned by Declarant to establish on the Units owned by
Declarant and the Common Elements additional easements, reservations and rights- of-way to itself,
to utility companies, or to other Persons as may from time to time be reasonably necessary to the
property development and disposal of the Units owned by Declarant. Such easements may be created
for the construction, installation, maintenance, removal, replacement, operation and use of utilities,
including without limitation sewers, water and gas pipes and systems, drainage lines and systems,
electric power and conduit lines and wiring, television, internet, telecommunication, and telephone
conduits, lines and wires, and other utilities, public or private, beneath the ground surface (except
vaults, vents, access structures and other facilities required to be above ground surface by good
engineering practice), including the right to dedicate, grant or otherwise convey easements for
rights-of-way to any public utility or governmental entity for such purposes. In the performance of
any work in connection with such utilities, Declarant shall not unreasonably interfere with or disrupt
the use of the Common Elements or the facilities located thereon and shall replace and restore the
areas and facilities as nearly as possible to the condition in which they were prior to the performance
of such work. All or any portion of the rights of Declarant hereunder may be assigned to any
successor or successors to all or part of Declarant's respective interest in the Property, by an express
written Recorded assignment.
19.1 PHASED DEVELOPMENT; DEVELOPMENT RIGHTS.
19.1.1 Subsequent Development.
Declarant reserves as a Development Right for itself, its successors and assigns, the right, by
adoption of amendments to this Declaration, to subject additional properties to this
Declaration or to withdraw undeveloped property from it. If the Declarant elects to subject
additional property to this Declaration, Declarant shall grant to the Owners of such additional
properties all of the rights and benefits to which Members of the Association are entitled.
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The rights reserved by Declarant in this section shall be exercised by Declarant at
Declarant’s sole discretion.
19.1.2 Consent to Adding or Subtracting Properties.
Declarant reserves as a Development Right the right to subject additional properties or to
withdraw any undeveloped properties to this Declaration at any time prior to termination of
the Development Period. Each Owner appoints and constitutes the Declarant as his/her
attorney-in-fact to adopt and file amendments to this Declaration necessary to add or subtract
such properties. The original VISTA AT MILL POND Owners shall be benefited by any
Common Elements on additional property the Declarant elects to add to VISTA AT MILL
POND, either through Association ownership and control of said additional Common
Element or by easements of use and enjoyment in favor of said original Owners on said
additional Common Elements. The Owners of such property added by Declarant to VISTA
AT MILL POND shall have an easement for use and enjoyment of the existing Common
Elements and shall have all the obligations to pay their prorata cost of maintaining the
Common Elements, unless otherwise provided herein. The Declarant shall also have as a
Development Right, the right to extend existing easements and may create new easements
over the Units still within the Declarant’s control so as to provide access to and service to the
additional properties. Neither the Association nor any Owners shall have any right in any
additional property, nor shall this Declaration have any effect on such additional property
until it is subjected to this Declaration by adoption of an amendment to this Declaration
specifically describing such additional property or by addition to the Plat Map of VISTA AT
MILL POND. The rights reserved by Declarant in this Section shall be exercised by
Declarant at Declarant’s sole discretion.
19.1.3 Rights and Obligations.
The owners of properties added to VISTA AT MILL POND shall be members of the
Association and shall be entitled to all benefits and subject to all obligations of a Member,
including, but not limited to, the right to vote in Association elections and the obligation to
pay assessments as set forth herein.
19.1.4 No Requirement to Include Additional Properties.
Nothing contained in this Declaration shall be construed to require the Declarant to subject
additional properties to this Declaration.
19.1.5 Control.
The Declarant shall have and hereby reserves as a Development Right for itself, its
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successors, and assigns, an easement for the right, during the Development Period and any
period thereafter in which Declarant is a Unit Owner, to utilize the Common Elements for its
business uses and purposes, including, but not limited to, uses and purposes related to the
construction, promotion, sale, and development of VISTA AT MILL POND. If additional
properties are subjected to this Declaration pursuant to this Section, Declarant shall have an
easement as described in this Section on Common Elements located therein. Upon
termination of the Development Period, said Declarant’s easement shall automatically
terminate except as to Units to which the Declarant retains title. Control and the
Management and administration of the Common Elements shall vest in the Association at the
end of the Development Period subject to the Declarants aforementioned rights of use.
19.1.6 Dedication to Governmental Entities.
Until the termination of the Development Period, Declarant reserves as a Development
Right, the right to withdraw any undeveloped part of the property from this Declaration and
to dedicate, transfer or convey it to any state, county, municipal or other governmental entity
any such part of the property or reserve it for Declarant’s use and/or sale. The rights
reserved by Declarant in this Section shall be exercised by Declarant at Declarant’s sole
discretion.
ARTICLE TWENTY: AMENDMENT AND REVOCATION
20.1: Exclusive Method.
This instrument may be amended, and partially or completely revoked only as herein provided or
otherwise provided by law.
20.2: Amendment by Declarant.
The Declarant may only amend the Declaration as provided for under Section 218(10), Section 209(2),
Section 210(12), Section 211 or Section 304(2)(d) of the Act. The Association may amend the
Declaration under Sections 106, 207(5), 209(3), 213(1), 214, or 218(11) of the Act. Certain Unit
Owners may amend under the provisions of Sections 209(2), 213(1), 214(2), or 219(2) of the Act.
Other than as set forth above and subject to the conditions set forth below, the Declaration may be
amended only by a vote or agreement of 67% of the Unit Owners.
Unless otherwise permitted or required under the Act, an amendment may not create or increase
special Declarant rights, increase the number of Units, change the boundaries of any Unit, or change
the allocated interest of a Unit without the consent of Unit Owners to which 90% of the votes in the
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Association are allocated including the consent of every Unit Owner of a Unit, the boundaries of
which are allocated interest of which is changed by the amendment.
20.3: Voting.
This Declaration may be amended at any annual meeting of the Association, or at a special meeting
called for such purpose, if sixty seven percent (67%) or more of the Owners vote for such
amendment, or without such meeting if all Owners are notified in writing of such amendment, and
if sixty seven percent (67%) or more of the Owners vote for such amendment by written ballot.
Notice of any proposed amendment shall be given to all Owners not less than fourteen (14) days
prior to the date of the annual meeting or of any special meeting at which the proposed amendment
shall be considered. Notwithstanding any of the foregoing, fifty one percent (51%) of all Institutional
First Mortgagees who have requested notification of amendments must give prior written approval
to any material amendment to the Declaration or Bylaws, including any of the following:
1. Voting rights.
2. Assessments, assessment liens and subordination of such liens.
3. Reserves for maintenance, repair, and replacement of Common Elements.
4. Insurance or fidelity bonds.
5. Responsibility for maintenance and repair.
6. Contraction of the project or the withdrawal of property from the real property.
7. The boundaries of any Unit.
8. Leasing of housing units other than as set forth herein.
9. Imposition of any restrictions on the right of an Owner to sell or transfer his or her
Unit.
10. Any decision by the Association to establish self-management when professional
management had been required previously by an Institutional First Mortgagee.
11. Restoration or repair (after hazard damage or partial condemnation) in a manner
other than that specified in this Declaration.
12. Any action to terminate the legal status of the real property after substantial
destruction or condemnation occurs; or
13. Any provisions which are for the express benefit of Institutional First Mortgagees.
20.4: Owner Liability and Duty.
Each Owner shall be liable to the Association for any injury to any person or damage to the Common
Elements or any equipment thereon which may be sustained by reason of the negligence of said
Owner or of his guests, employees, invitees, or tenants. The damage and costs incurred by the
Association as a result thereof shall become a Special Assessment against such Owner and his Unit,
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and shall be subject to levy, enforcement, and collection in accordance with the Association Lien
procedure provided for in this Declaration. The Association reserves the right to charge a Special
Assessment to such Owner equal to the increase, if any, in the insurance premium directly
attributable to the damage or injury caused by such Owner or by the use of the Unit of such Owner.
The Association shall hold each Owner harmless from liability for loss or injuries that are covered
by insurance then maintained by the Association.
20.5: Association Waiver.
Notwithstanding anything herein to the contrary, to the extent that any Owner waives any claims
against Declarant, or releases the Declarant from any claim with respect to a Unit, the Common
Elements, the Improvements, and/or the Community, then the Association shall be deemed to have
likewise released Declarant (and its officers, directors, shareholders, members, partners, employees,
agents and representatives) from any claim with respect to such Unit, the Common Elements, the
Improvements, and/or the Community on a pro rata basis applicable to each such Unit.
20.6: Effective Date.
Amendments to this Declaration shall take effect only upon recording with the Thurston County
Auditor.
20.7: Notice.
Any notice required hereunder must be provided in the form of a record and may be transmitted by
mail, private carrier, personal delivery, telegraph or teletype, or telephone, wire or wireless
equipment that transmit a facsimile of the notice. Notice to the Association may be addressed to the
Association’s registered agent at its registered office or to the Association at its principal office as
shown in its most recent annual report or provided by notice to Unit Owners, or to the President or
Secretary of the Association at the address shown in the Association’s most recent annual report or
provided by notice to the Unit Owners. Notice to a Unit Owner or occupant must be addressed to
the Unit address unless the Unit Owner or occupant has requested, in a record delivered to the
Association, that notices be sent to an alternate address or by any other method allowed by the Act
or this Declaration. Notice may be provided in electric transmission however it is effective only
upon the Unit Owners and Board members who have consented in the form of a record to receive
such electronically transmitted notices and have designated in the consent the address, location or
system to which such notices may be electronically transmitted, provided that such notice otherwise
complies with any other requirements of the Act and the Declaration. A Unit Owner or Board
member who has previously consented to the receipt of electronically transmitted notices may
revoke the consent by delivering revocation to the Association and also consent of any Unit Owner
or Board member as revoked as provided for in Section 324(3)(d) and (e) of the Act. Notice shall
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be effective as of the date of hand delivery, deposit with a carrier or when sent by fax. Notice
provided by electronically transmission is effective as of the date it is transmitted to that address
designated by the recipient. Notices to lenders shall be sent to the last address the lender has given
to the Association. The Association is not required to provide notice of any matter to any lender
who has not notified the Association in writing of such lender’s desire to receive notice, and/or has
not given the Association written notice of the lender’s address for receipt of notices. The
Association shall not undergo investigation outside of its own records into the name or location of
any lender or lienholder.
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IN WITNESS WHEREOF, the undersigned have caused this Declaration to be executed this _____
day of , 2022.
Rush Residential, Inc. a Washington
corporation
By:_________________________
Scott Walker, Vice President
STATE OF WASHINGTON )
)§
COUNTY OF PIERCE )
On this _____ day of , 20__, before me, the undersigned,
a Notary Public in and for the State of Washington, duly commissioned and sworn, personally
appeared Scott Walker, the Vice President of Rush Residential, Inc., the Washington corporation
that executed the foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act and deed of the corporation, for the uses and purposes therein mentioned, and on
oath stated that he is authorized to execute the said instrument.
WITNESS my hand and official seal hereto affixed the day and year first above written.
____________________________
Printed Name: ____________________________
NOTARY PUBLIC in and for the State of Washington,
Residing at: ____________________________
My Commission Expires: __________________________