20070235 CCR's 12032013 �
Return Address
City of Yelm
Tami Merriman
105 Yelm Avenue West
Yelm,WA 98597
Document title(s) (or transactions contained therein):
1. Declaration of Protective Covenants, Conditions, and Restrictions.
Reference Number(s) of Documents assigned or released:
(on page of documents(s))
Grantor(s) (Last name, first name, middle initial)
1. Fairway Estates
2. Mountain Terrace Builders, LLC
3. Kempinski, Michael, Manager
Grantee(s) (Last name, first name, middle initial)
1. City of Yelm
2.
Legal Description ( abbreviated: i.e. lot, block, plat or section, township, range)
NW '/4SE '/4S24, T17N, R1E
Assessors Property Tax Parcel/Account Number:
21724420503
4370983 Pages: 39
12/03/2013 04:�� PM Covenant
Thurston County Washington
CITY OF YELM
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DECLARATION OF PROTECTIVE COVENANTS, CONDITION, AND RESTRICTIONS
FOR FAIRWAY ESTATES
GRANTOR: Fairway Estates, LLC. A Washington Limited Liability Company
Grantee: Fairway Estates Homeowner's Association
Lot 3 of Short Subdivision No. SS-0175 as recorded September 11, 1975 under Auditor's File No.
946434.
Together with that portion set forth in judgment quieting title filed August 30th, 2007 under
Thurston County case no. 07-2-01251-3, described as follows:
The south 300.00 Feet of the Southeast Quarter of the Northeast Quarter of the Southeast
Quarter of Section 24, Township 17 North, Range 1 East of the Willamette Meridian, Lying west
of the west line of the City of Yelm Plat of Vista Green as Recorded November 17, 2006 under
Auditor's file no. 3881244; except the South 30.00 Feet for the City of Yelm road known as
Longmire Street SE;
In Thurston County Washington
The Declarant herein as the owner in fee of the real property legally described in this
Declaration, hereby covenants, agrees, and declares, that all of the properties and housing units
constructed on the properties are and will be held, sold and conveyed subject to this
Declaration which is made for the purpose for enhancing and protecting the value, the
desirability and attractiveness of the properties for the benefit of all the properties and their
° owners. The covenants, restrictions, and reservations, and conditions, contained in this
Declaration shall run with the land as easements and equitable servitudes and shall be binding
upon the properties and each portion thereof and all persons owning, purchasing, leasing,
subleasing or occupying any lot one the properties and upon their respective heirs, successors
and assigns.
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:
Section 1.1 "ACC "shall mean the Architectural Control Committee, as described in this
Agreement
Section 1.2 "Articles" shall mean the Association's articles of incorporation and any
amendments.
Section 1.3 "Association" shall mean the Homeowner's Association formed as a nonprofit
corporation for the purpose of administering this Declaration.
Section 1.4 "Board" or"Board of Directors" shall mean the Board of Directors of the
Association.
Section 1.5 "Bylaws" shall mean the Association's Bylaws and any amendments.
Section 1.6 "Common Areas" shall include but nor be limited to Tracts A and B, as delineated
on the plat of Fairway Estates. Common areas shall also mean all the property, both real and
persona, in which the Association has been granted an easement of right of control by any
written instrument including this Declaration or by delineation and Declaration of the same of
the plat map recorded under the above referenced recording number. Upon the subsequent
approval and recording of Fairway Estates, the Common areas described in Tracts A and B shall
also be Common areas for Fairway Estates. Any common areas which may be described as sub
in the Plats for Fairway Estates shall also be considered to be within the definition of Common
Areas as described herein, once such Plats are approved and are recorded.
Section 1.7 "Declaration" shall mean this Declaration of Protective Covenants, Conditions and
Restrictions.
Section 1.8 "Declarant" shall mean and refer to Fairway Estates, LLC. A Washington Limited
Liability Company.
Section 1.9 "Developer" The term "Developer" shall mean and refer to Declarant. However,
the term "Developer" shall also include any entity which purchases at least five (5) lots from
Declarant, within Fairway Estates for the purpose of construction residences thereon. Until
Such time as Declarant or any other entity purchasing multiple lots, has sold all the lots by that
party, then such party shall jointly exercise all rights reserved to a Developer as set forth in this
Declaration. At any time as such party has sold or conveyed all the lots held by that entity then
that party shall no longer be considered a Developer or a Declarant.
Section 1.10 "Development Period" shall mean the period of time from the date of recording of
this Declaration until 180 days after the date upon which 100%of the lots in Fairway Estates
have been sold by the Developer or any shorter period, as determined by the Declarant. A
partial delegation of authority by the Declarant of any of the management duties described in
this Declaration shall not terminate the development period. In the event any loans with
respect to any of the lots are insured through the Federal Housing Administration (FHA), the
Veteran's Administration (VA), the Federal National Mortgage Association (FNMA), and the
Federal Home Loan Mortgage Corporation, then in that event, the Development Period shall
terminate at such time as 75%of all of the lots in each respective Phase have been closed and
sold to other than Developer.
Section 1.11 "Housing Unit" shall mean the building occupying a Lot.
Section 1.12 "Institutional First Mortgagee" or Mortgagee" shall mean a blank 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
mortgage or deed of trust against a Lot or Housing Unit thereon.
Section 1.13 "Lot" or "lots" shall refer to one or more of the residential buildings lots located in
the Real Property described herein Fairway Estates.
Section 1.14 "Member" shall mean every person or entity that holds a membership in the
Association.
Section 1.15 "Mortgage" shall mean a mortgage or deed or trust encumbering a Lot or other
portion of the Properties.
Section 1.16 "Owner" shall mean the recorded owner of a Lot, whether on or more persons or
entities, but excluding those having such interest merely as security. A real estate contract
purchase shall be deemed the owner.
Section 1.17 "Person shall mean a natural person, a corporation, a partnership, trustee or other
legal entity.
Section 1.18 "Phase" shall mean and refer to each portion of the development of Fairway
Estates.
Section 1.19 "Real Property" that is the subject of this Declaration shall include Fairway Estates.
Lots 1 through Lot 8 of Fairway Estates.
The term "Real Property" shall also include and shall also apply to Fairway Estates subject to
and upon the subsequent approval and recording of the Plats of Fairway Estates.
Section 1.20 "Sale" or"Sold" shall mean the date upon which ownership of a Lot 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.
ARTICLE TWO:
MANAGEMENT OF COMMON AREAS AND ENFORCEMENT OF DECLARATION
Section 2.1 Development Period. During the development period of Declarant, Fairway
Estates, LLC. A Washington Limited Liability Company shall appoint the sole director of the
Association. The Declarant may also appoint members of the Association 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 lots then the Declarant may resign as a director
of the Association and from any other committees for the duration of the development.
The Declarant for the duration of the development period shall be entitled to appoint a
director to the association as well as a Member to the Architectural Control Committee.
Section 2.2 Purpose of Development Period. The Developer's control of the Association during
the Development Period is established in order to insure that the Properties and the
Association will be adequately administered in the initial phases of development, ensure an
orderly transition of Association operations, and to facilitate the Developer's completion of
construction of Housing Units.
Section 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 Areas and to enforce this Declaration. Such authority
shall include all authority provided for the Association's Articles, Bylaws, rules and regulation
and the 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 agreement.
Section 2.4 Delegation of Authority. The Board of Directors or the Developer may delagate any
of its managerial duties, powers or functions to any person, firm, or corporation. The Board
and the Developer shall not be liable for any breach or 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 Developer.
Section 2.5 Notice to the Owner. Not less than ten (10) nor more than (30) days prior to the
termination of the development, the Declarant or any Developer who then constitute the
Board, shall give written notice of termination of the Development Period to the Owner of each
lot. Said notice shall specify the date when the development period will terminate and that at
such time a meeting of the members shall be called in accordance with the Bylaws which
members shall then elect directors in accordance with the terms and provisions of the Articles
of Incorporation and Bylaws of this Declaration.
Article Three:
Membership
Section 3.1 Every person or entity who is an owner of any Lot within Fairway Estates agrees to
be a member of the Association by acceptance of a deed for such lot. Membership may not be
separation from ownership of any Lot. All members shall have rights and duties as specified in
this Declaration, and in the Articles and Bylaws of the Association.
ARTICLE FOUR:
VOTING RIGHTS
Section 4.1 Members shall be entitled to one vote for each Lot owned. No more than one vote
shall be cast with respect to any Lot. The voting rights of any Member may be suspended as
provided in the Declaration, or the Articles or Bylaws of the Association. Members' votes may
be solicited and tabulated by mail or facsimile.
ARTICLE FIVE:
COMMON AREAS
Section 5.1 Conveyance of Common Areas: Upon recording of this Declaration, and under the
terms of the Plat, all of the right,title and ownership is hereby dedicated and conveyed to the
Fairway Estates Homeowners Association; reserving, however, to the Declarant for the benefit
of the Declarant, its successors and assigns, those certain rights of use, ingress, egress, and
occupation and control, indicated elsewhere in this Declaration for the duration of the
development, at which time this reservation shall cease and then the Fairway Estates
Homeowner Association shall have complete control and authority with respect to those
Common Areas as more particularly set forth in this Declaration. These tracts and other
properties and improvements as described herein are referred to as the "Common Areas"
together with any other easements which are defined as being "Common Areas" under the
terms of this Declaration. Upon recording of the Plats for Fairway Estates, any additional
common areas shown on such Plats shall be deemed to be dedicated and conveyed to the
Fairway Estates Homeowner's Association subject to the same reservations described in above
as to the Common Areas.
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,
Section 5.2 Property Rights in Common Areas: The Association shall have the right and
obligation to maintain improvements (including fences and sound barriers), vegetation, signage
and utilities in and on all common areas subject to any restrictions delineated on the plat of the
properties. The Association shall have the exclusive right to use and manage the Common
Areas in a manner consistent with the Plat, this Declaration, the Articles and the Bylaws of the
Association.
ARTICLE SIX:
MAINTENANCE AND COMMON EXPENSES
Section 6.1 Standard of Maintenance—Common Areas and Streets. The Association shall
maintain the Common Areas in a manner consistent with good building, construction,
maintenance and nursery practices, and in compliance with all applicable codes and
regulations. The common areas shall include but not be limited as defined below together with
all easements which are for the benefit of the Homeowner's Association or for the benefit of all
Lot Owners of Fairway Estates. These Common Areas include but are not limited to the
following:
6.1.1 The park delineated on the Plat of Fairway Estates
6.1.2 The private storm drainage area delineated on the Plat of Fairway Estates.
6.1.3 Any entry, perimeter fencing, all berms, and any monument improvements
thereon which may be constructed by the Declarant.
6.1.4. All easements which have been established for the benefit of Lot Owners or the
Association or which may be delineated on the Plat of Fairway Estates, where and to the extent
that such easements are reserved for the benefit of all Lot owners 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.
6.1.5 All streets and private roads which are not dedicated to the public which have .
been established for the benefit of Lot Owners or the Association.
Section 6.2 Standard of Maintenance—Lots and Planting Strips. Each Lot Owner hereby
covenants and agrees to maintain his respective Lot (including as a part of said Lot the Planting
Strip located between the street and the sidewalk adjacent to the Owner's respective Lot, if
any) 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 Lot Owner shall perform at the Lot Owner's expense the maintenance and
upkeep of any drainage swales, underground drain lines, catch basins and decommissioned
wells installed on their lot.
Section 6.3 Remedies for Failure to Maintain. If any Lot Owner shall fail to conduct
maintenance on his Lot or the exterior of the Housing Unit located thereon, or fails to maintain
the lot and exterior of the Housing Unit in the same condition as reasonably prudent
homeowner, or in a manner which preserves the drainage for the other Lots, the Association
shall notify the Lot Owner in writing of the maintenance required. If the maintenance is not
performed within 30 days of the date notice is delivered, the Association shall have the right to
provide such maintenance, and to levy an assessment against the non-performing Lot Owner
and its Lot for the cost of providing the maintenance. The assessment shall constitute a lien
against the Lot owned by the non-performing Lot Owner and may be collected and foreclosed
in the same manner as any other delinquent monthly or special 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 Lot which poses 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 Lot
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, it not paid for by the Lot Owner, may
be collected by the Association in the manner provided for herein notwithstanding the failure
of the Association to give the Lot Owner the thirty (30) day notice.
Section 6.4 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 Low Owners, and shall be referred to
as Common Expenses. The Common Expenses shall be paid by the Association from funds
collected from assessments paid by Lot Owners. The Common Expenses shall include, but shall
not be limited to the following:
6.4.1 The cost of maintaining all required insurance coverage and fidelity bonds on any
common Areas, and for directors and officers of the Association and the ACC.
6.4.2 The cost of maintaining, repairing, and replacing all Common Area improvements,
including but not limited to signs, lights, perimeter fences, walls, open space tracts, and berms,
plantings, landscaping, and all portions of the storm water drainage systems and sanitary sewer
system which are located within individual lots or within the Common Areas,
6.4.3 The cost of maintaining the replacing streets, private roads and streetlights (if not
maintained by applicable governmental jurisdiction);
6.4.4 Payment of any real estate taxes assessed against the Common Areas;
6.4.5 Any other expenses which shall be designed as a Common Expense in the
Declaration, in its Exhibits, or from time to time by the association.
Section 6.5 Extraordinary Use Expenses. In the event that one or more Lot Owners should by
their use of the Common Areas cause it to be subjected to other than reasonable wear and tear
or by their actions damage those common areas or any improvements located thereon or
therein,then the individual subjecting the Common Area to such use shall have the obligation
to repair such damage upon demand by the Association and to restore such Common Areas to
the condition that existed prior to such use or action and all expenses therefore shall be paid by
such individual.
Section 6.6 Owners' Easement of Enjoyment. Each Owner shall have a right in an easement of
enjoyment n and to the Common Areas which shall be appurtenant in and to and shall pass
with title (or, if applicable, with the equitable title held by real estate contract purchaser)to
every lot subject to the following provisions.
6.6.1 The right of the Declarant or the Association to establish use and operation
standards for all Common Areas to be binding upon all Association members along with
enforcement standards.
6.6.2 The right of the Declarant during the Development Period (including any
Developer during the development period) or the Association after the development period to
suspend an Owner's right to vote and to use.
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 Areas
(including private roads and streets)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 at least
seventy five percent 75%of the Lots has been recorded.
6.6.4 Any owner may delegate their right of enjoyment to the common areas and
facilities to the members of their family,their tenants, or their guests, subject to the limitations
set forth above.
Section 6.7 Insurance, Nothing shall be done or kept in any common areas which will increase
the rate of insurance on the Common Areas or other lots or improvements without the prior
written consent of the Board. Nothing shall be kept in any Common Areas which will result in
cancellation of insurance on any part of the common areas or which would be in violation of
any laws or ordinances.
Section 6.8 Alteration of Common Areas and Common Maintenance Areas. Nothing shall be
altered or constructed in or removed from any common maintenance area or common Area
except upon prior written consent of the Board. There shall be no construction of any kind with
the common area except that communities improvements may be constructed in two-thirds of
the Members of the Association authorize (1)the construction of such improvements, and (2)
assessment for such improvements. Also, any such improvements would be subject to the
acquisition of tall 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 area 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.
Section 6.9 Dumping in Common Areas, Common Maintenance Areas, or Wetland and Buffer
Areas. 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 Areas, common maintenance areas 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.
Section 6.10 Landscaping and Fencing. No Permanent structures 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 delegated on the Platt of Fairway Estates except as deemed appropriate by
the Board. This prohibitation shall not apply to the landscaping and any improvements in the
common maintenance areas installed by the Declarant, nor shall this Section prohibit the
. _ _
Association from installing additional improvements or landscaping within the designed
Common Areas or common maintenance areas, 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 Lot areas encumbered by utility easements not otherwise
restricted in this Declaration, or on the Plat. Also, this prohibition shall not apply to landscaping
of front outside yards of lots extending to the edge of the curb or sidewalk and the public right
of way.
Section 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 of officer of the Association and may enter into such
management contracts or other services contracts to provide for the maintenance of the
common areas and common maintenance areas 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 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 of up to three years each. 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.
Section 6.12 Sanctions for Failure to Maintain Drainage Facilities. In the event the Fairway
Estates Homeowner's Association ("Association") in the judgment of The City of Yelm fails to
maintain drainage facilities within the Plat, or if the Association or successors willfully or
accidentally reduce the capacity of the drainage system or render any part of the drainage
system unusable,the Association or successors agree to the following remedy: After 30 days
notice by registered mail to the Association or successors, the applicable municipality will
assess financial sanctions 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 or the facitity 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 cotlect such payments, shall be borne by the
Association or successors.
ARTICLE SEVEN
ASSESSMENTS
Service 7.1 Covenants for Maintenance Assessments
7.1.1 Declarant shall not be liable for the payment of any duties-or assessments for any
Lot owned by it, and the Board and the Association shall make no claim against the Declarant
for the payment of such dues and assessments.
7.1.2 The annual or other regular and special assessments,together with interest, costs
and reasonable attorney's fees, shall be a charge and a continuing lien upon the Lot against
which each such assessment is made. Such lien may be foreclosed by the Association in like
manner as a Mortgage on real property, or as otherwise allowed by law.
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 lot assessed at
the time of assessment fell due. The personal obligation shall not pass to the Owner's
successor's 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 of transfer.
7.1.4 During all Applicable Development Periods and until all Lots are sold by the
Declarant, no Lot owned by a Declarant shall be subject to any annual or other assessments.
Section 7.2 Purpose of 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 Property, including the improvement, repair and maintenance of the Common
areas and the services and facilities related to the use and enjoyment of said areas, for the
payment of insurance premiums on the Common Areas, and for the maintenance of other areas
as provided for in the this Declaration.
Section 7.3 Board to Fix Annual or Regular Assessment. The Board of Directors shall fix the
regular or annual assessment at least thirty (30) days prior to the commencement of the annual
or regular assessment period. Written notice of the annual or regular assessment shall be sent
to every owner. In the event the Board fails to fix an annual or regular assessment for the prior
year shall automatically be continued until such time as the Board acts. The annual or regular
assessment established for the prior year shall automatically be continued until such time as
the Board acts. The annual or regular assessments shall be sufficient to meet the obligation
imposed by the Declaration and any supplementary declarations, and shall be sufficient to
establish an adequate reserve fund for the maintenance, repair and replacement of those
Common Areas which require such actions on a periodic basis. That in the event there is any
increase in the annual or regular assessment of more than ten percent (10%) of the annual or
regular assessment for the prior assessment period,then it must be approved as by the Owners
of at least sixty (60%) of the Lot Owners eligible to vote.
Section 7.4 Rate of Assessment. Both annually or regular and special assessments shall be
fixed at a uniform rate for all Lots.
Section 7.5 Street Repair, Maintenance, and Cleaning. All Developers or Owners shall use due
diligence to avoid placing unnecessary dirt, debris, and any other material washing onto or
coming on the road as a result of any construction activities and each Developer or Owner shall
at all times remain responsible for keeping the road clean or any such debris, dirt and material.
In addition, all Developers or Owners shall use due diligence to avoid causing any damage to
the road or sidewalks and all roads and sidewalks and other improvements constructed by the
Declarant as a condition for obtaining plat approval shall remain in the same condition as they
were as of the date of final plat approval. Any Developer or Owner who violates the provisions
of this paragraph shall reimburse the Declarant upon request for any expenses incurred by
Declarant because of the failure of the Developer or Owner to abide by the terms and
provisions of this Declaration. In the event any Developer or Owner does not pay the same
upon request,then the Declarant shall have a lien against the property of said Developer or
Owner to secure payment of said reimbursement. In the event it cannot be determined which
Developer or Owner was responsible for the violation of the above referenced provisions in
that event the Homeowners Association shall reimburse the Declarant for any expenses
incurred by the Declarant. Regardless of any other provision in this Declaration, this paragraph
cannot be amended for a period of ten (10) years after recording of this Declaration.
Section 7.6 Maintenance of Storm Drain System. All Developers or Owners shall use due
diligence to avoid mat4erials from washing into or being put into the storm water drain system
as a resulting of construction activities conducted by the Developer or Owner which would
include any sediment, cement slurry, or any other material washing off of coming off of any lot
upon which a Developer or Owner are constructing a residence and flowing into the storm
water drain system. In the event any Developer or Owner are in violation of the terms and
provisions of this paragraph, this Developer or Owner shall agree to pay a maintenance charge
to the Developer in an amount to be determined by the Developer but not to exceed $500 for
each such violation by a Developer or owner. In addition, each Developer or Owner agrees to
Indemnify the Declarant from any costs or charges which the Declarant may incur in connection
with the cleaning and maintenance of the storm water system as a result of any violation of this
paragraph by such Developer or Owner and that this liability on the part of the Developer or
Owner shall be joint and several. Any Developer or Owner who violates the provisions of this
paragraph shall reimburse the Declarant upon request for any expenses incurred by Declarant
because of the failure of the Developer or Owner to abide by the terms and provisions of this
Declaration. In the even any Developer or Owner does not pay the same upon request,then
the Declarant shall have a lien against the property of said Developer or Owner to secure
payment of said reimbursement. In the event if cannot be determined which Developer or
Owner was responsible for the violation of the above reference provisions, in that event the
Homeowners Association shall reimburse the Declarant for any expenses incurred by the
Declarant. Regardless of any other provision in this Declaration,this paragraph cannot be
amended for a period of ten (10) years after recording of this Declaration.
Section 7.7 Annual Assessments. The initial annual assessment shall be $240 per lot
commencing on January 15t of each year. Each Lot Owner purchasing from a Developer shall
pay the pro rata portion of the annual assessment, as of the closing date for such purchase.
Said annual assessment shall be due on or before January 30th or each year in which the
assessment is made. The above referenced annual assessment and all subsequent annual
assessments shall be paid to the Homeowners Association who shall then pay for the expenses
of the Association as required under the terms of this Declaration. The Declarant shall not be
responsible or liable for the payment of any assessment against any Lot owned by the
Declarant. During the Development Period,the Declarant shall have the authority to increase
the annual assessment to reflect (1) maintenance costs, (2) repair costs, or (3) Plat
management costs. All increases during the Development Period must directly reflect increases
in the above recited costs. During the Development Period, the Declarant shall have authority
to reduce the annual assessments as economic data supports such a reduction because of
reduced maintenance costs or other anticipated association expenses. After the Development
Period expires,the Board of Directors shall fix the annual assessment in accordance with the
above recited standards.
Section 7.8 Certificate of Payment. The Association shall, upon written demand, furnish a
certificate in writing setting forth whether the assessment on a specified Lot has been paid. 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.
Section 7.9 Special Assessments. In addition to the assessments authorized above,the
Association, by a simple majority of the Members eligible to vote at an annual or special
meeting called for the purpose, may levy, in any year, a special assessment applicable to that
year only,for the purpose of defraying the cost of any construction or reconstruction,
unexpected repair or replacement of facilities in the Common Areas. However, the Developer
and the Declarant shall not be obligated to pay any special assessments on Lots owned by the
Declarant. Assessments may be made based upon the estimate cost of such work, prior to the
work's commencement, provided such estimate has been provided by a contractor retained by
_ _
the Board for 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 approval by the Members, as provided by
the Bylaws.
Section 7.10. Fines Treated as Special Assessments. Any fines levied by the Association
pursuant to RCW Chapter 64.38 (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.
ARTICLE EIGHT:
COLLECTION OF ASSESSMENT
Section 8.1 Liens—Personal Obligation. All assessments,together with interest and the cost of
collection shall be a continuing lien upon the Lot 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 Lot at the time the assessment was due. No
Owner may waive or otherwise avoid liability for assessment by non-use of the Common Areas
or abandonment of the Lot.
Section 8.2 Delinquency. If any assessment is not paid within thirty (30) days after it's due
date,the assessment shall 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 the law. A late charge of five percent
(5%) of the amount overdue 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 all actions 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 action brought in the name of the Association in a like manner
as a mortgage of real proper 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 a
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 Lot obtained by the Association.
Section 8.3 Suspension of Voting Rights. In the event any Member shall be in arrears in the
payment of the assessments due or shall be in default of the performance of any of the terms
of the Articles and Bylaws of the Association,the rules or regulations adopted by the
Association, or the Declaration for a period of thirty (30) days, the Member's right to vote shall
be suspended and shall remain suspended until all payments are brought current and all
defaults remedied. In addition,the Association shall have such other remedies against such
delinquent Members as may be provided in the Articles, Bylaws or Declaration.
Section 8.4 Enforcement of Assessments. The Board may take such action as is necessary,
including the institution of legal proceedings,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.
ARTICLE NINE:
ARCHITECTURAL CONTROL
Section 9.1 Development Period. The Declarant hereby reserves the right to exercise any and
all powers and controls herein given to the Board of Directors, the ACC or its authorized
representative in this Article of the Decfaration, during the Development Period. At the
expiration of the Development Period, Declarant reserves the right to continue to exercise all
power and controls granted herein to the ACC and to appoint Members of the ACC until such
time as there has been constructed on all lots a residence and said residence has been sold and
conveyed by either a Developer or the Declarant.
Section 9.2 Authority of ACC After Relinquishment of Control by Declarant. At such time as all
residences have been constructed on all lots and said residences have been sold and conveyed
by either a Developer or the Declarant, 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 this Article and to enforce those covenants, conditions, and
restrictions. Such authority shall include all authority provided for the ACC in the Association's
Articles, Bylaws, Rules and Regulations as initially adopted or amended, and all authority
granted to the ACC by this Declaration.
Section 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.
Section 9.4 Appointment of ACC. The Declarant during the development period reserves the
right to act as the ACC or to appoint the Member(s) of the ACC. At such time as all of the lots
have been sold by the Declarant and/or Developer,then the Board of the Association shall
appoint at least one but not more than three Members of the ACC and if all the members of the
ACC shall resign and not replacements have been appointed by the Board,then the Board shall
act as the ACC until the members of the ACC are appointed by the Board.
Section 9.5 Approval by ACC Required. Except as to construction, alteration, or improvements
performed by the Declarant, no construction activity of any type including clearing and grading,
cutting or transplant of significant natural vegetation may begin on a Lot or Common Area and
no building, structure, fence, or other improvement shall be erected, placed or altered on any
Lot or Common Area until, at a minimum,the building plans, specifications, plot plans, and
landscaping plan showing the nature, kind, shape, height, materials, exterior color and location
of such building, structure or other improvements have been submitted and approved in
writing by the ACC or its authorized representative as to harmony of exterior design and
location in relation to and its effect upon surrounding structures and topography. Further, no
fences, hedges or wall 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.
Section 9.6 Delivery of Documents. The plans, specification and the other required
information shall be considered and submitted to the ACC upon personal delivery of three (3)
complete sets of all required information to the members of the ACC or to the persons
designated to receive such items by the ACC or by mail three days after deposit in the US 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.
Section 9.7 Donation of Time. No member of the ACC shall be entitled to any compensation
for services performed on behalf of the ACC. ACC members shall have no financial liability
resulting from ACC actions.
Section 9.8 Address of the ACC. The address of the ACC shall be at the registered office
address of the Association.
Section 9.9 Voting—ACC decisions shall be determined by a majority vote of the members of
the ACC.
Section 9.10 Submission of Plans—The written submission shall contain the name and address
of the Owner submitting the plans and specifications, shall identify the Lot involved, and shall
provide the following information about the proposed structures:
9.10.1 The location of the structure upon the Lot (plot plan);
9.10.2 The elevation of the structure with reference to the existing and finished Lot
grades;
9.10.3 The general design;
9.10.4 The interior layout;
9.10.5 The exterior finish materials and color, including room materials; and
9.10.6 Other information which may be required in order to determine whether the
structure conforms to the standards articulated in this Declaration and the standards employed
by the ACC in evaluating development proposals.
Section 9.11 Evaluating Development Proposals. The ACC shall have the authority to establish
aesthetic standards for evaluating development proposals. In addition to these guidelines, in
evaluating development proposals, the ACC shall determine whether the external design, color,
building materials, appearance, height, configuration, location on the Lot, and landscaping of
the proposed structure (the "design elements") harmonize with (1)the various features of the
natural and built environment, (2) the aesthetic character of the other homes in all phases of
Fairway Estates, and (3) any other factors which affect the desirability or suitability of a
proposed structure or alteration (collectively the "approval factors")The ACC shall decline to
approve any design in which (1)the design elements fail to harmonize with the approval factors
described in the previous sentence or which fail to meet any aesthetic standards promulgated
by the ACC, (2) impacts adversely on nearby Properties and Common Areas, or (3) is of a
temporary or non-permanent nature. ACC determinations may be amended by a majority vote
of the Board of Directors of the Association. Any changes subject to review per the terms set
forth herein which are undertaken without submission to the Architectural Control ACC shall be
deemed to have been disapproved. The ACC has the authority to stop further work as well as
the authority to have prior work undone.
Section 9.12 Exclusions The Declarant shall have the right to waive the plans and specifications
review for Developer in Fairway Estates. Any such waiver shall not exempt Developer from any
of the standards or restrictions articulated in this Declaration and all structures and
improvements shall meet all standards and restrictions contained in these declarations.
Section 9.13 Approval Procedure. Within sixty(60) days after the receipt of plans,
specifications, and the other required information the ACC shall either approve or disapprove
the proposed structure. The ACC may decline to approve phase and specifications which, in its
opinion, do not conform to restrictions articulated in this Declaration and criteria or to its
aesthetic standards. The ACC shall indicate its approval or disapproval on one of the copies of
the plans and specifications provided by the applicant and shall return the plans and
specifications to the address shown on the plans& specifications. In the event that no
disapproval of such plans and specifications is given within sixty (60) days of the submission of
the final documents which are required to have been submitted,the plans shall be deemed to
be approved. In any event,the Association shall hold the ACC members (and the Declarant)
harmless from any actions taken (or actions not taken) relative to the approval, disapproval, or
non-action on any plans submitted for review. "Non-action" on the part of the ACC shall not
exempt the applicant from any of the provisions of this Declaration or the restrictions
articulated herein. By purchasing a Lot in Fairway Estates,the Owners agree that, to the extent
permitted by law, the Declarant shall have no liability to the Owners or the Association for any
actions taken, or actions not taken, while acting as the ACC.
Section 9.14 Compliance with Codes/Environmental Laws. In all cases, ultimate responsibility
for satisfying all local building codes and requirements rests with the owner and contractor
employed by the Owner. The ACC has no responsibility for ensuring that plans and
specifications which it reviews comply with local building codes and requirements. The Owner
shall hold the ACC members (and Declarant) harmless in the event that a structure which the
ACC (or Declarant) authorized fails to comply with relevant building and zoning requirements of
these covenants and restrictions contained herein. No person on the ACC or acting on behalf of
the ACC, nor the Declarant acting as the ACC, or anyone acting on behalf of the Declarant shall
be held responsible for any defect in any plans or specifications which are approved by the ACC
or Declarant nor shall any member of the ACC or any person acting on behalf of the ACC or
Declarant be held responsible for any defect in a structure which was built pursuant to plans
and specifications approved by the ACC or by the Declarant. Neither the Declarant,the ACC,
nor any member of the ACC, nor the Association, nor anyone acting on behalf of the ACC or the
Association shall have any responsibility for compliance by the Owner (or any agent,
representative guest, or invitee of Owner) with any environmental laws, regulations, or rules,
including but not limited to those relating to hazardous waste and placement of underground
oil tanks.
Section 9.15 Variation. The ACC or the Board of Directors shall have the authority to approve
plans and specifications which do not conform to these restrictions in order to (1) overcome
practical difficulties or(2) prevent undue hardship from being imposed on an Owner as a result
of applying these restrictions. However, such variations may only be approved in the event that
the variation will not (1) detrimentally impact on the overall appearance of the development,
(2) impair the attractive development of the subdivision or (3) adversely affect the character of
nearby Lots. Granting such a variation shall not constitute a waiver of the restrictions
articulated in this Declaration Variations shall only be granted if the ACC determines that the
variation would further the purpose and intent of these restrictions. Variations shall only be
granted in extraordinary circumstances.
Section 9.16 Enforcement. The Association (including the Declarant of behalf of the
Association), Board or any Owner shall have the right to bring a suit for judicial enforcement of
a determination of the ACC or the Board, or after the Development Period, to seek an order
requiring the ACC to exercise its authority, and perform its functions, under this Article Nine. In
any judicial action to enforce a determination of the ACC, the losing party shall pay the
prevailing party's attorney's fees, expert witness fees, and other costs incurred in connection
with such a legal action or appeal.
Section 9.17 ACC& Declarant Liability. The Association shall hold the ACC Members and the
Declarant, if acting as the ACC, harmless from any actions taken (or actions not taken) under
any provision of this Declaration, including, but not limited to, actions taken (or not taken)
under this Article of this Declaration. By purchasing a Lot in Fairway Estates, the Owners agree
that,to the extent permitted by the law, neither the Declarant (nor any officer, director, or
representative of the Declarant), nor the ACC (nor any member of the ACC) shall have any
liability to the Owners or to the Association for any actions taken, or actions not taken, while
acting as the Declarant or the ACC under this Declaration. "Non-action" on the part of the ACC
or the Declarant shall not exempt the applicant from any of the provisions of this Declaration or
restrictions contained in this Declaration.
Section 9.18 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.
Section 9.19 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.
Section 9.20 Consultation. The ACC may retain and consult persons or entities to assist in the
evaluation of plans submitted to the Board for review.
Section 9.21 Appeals. After the Development Period,the Board shall serve as an appellate
panel to review decisions of the ACC upon request of a party aggrieved by the ACC's decision.
The Board shall provide through rules and regulations, a procedure by which decisions of the
ACC may be appealed to the Board. 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.
ARTICLE TEN:
LAND USE RESTRICTIONS
Section 10.1 Use of lots. All Lots within the Real Property shall be used solely for private
single-family residential purposes, provided, however, that with such single family residences
the Owner(s)thereof may, upon formal written application to the Board, request permission to
operate a licensed day care business. The board shall be authorized, but not obligated,to grant
such approval and such approval may only be granted by the Board, whose approval cannot be
unreasonably withheld, provided (1) all applicable governmental zoning and land use
classifications lawfully permit such usage AND, (2)the business and Owner(s) are licensed by all
applicable governmental authorities to operate such a day care business,AND (3)the day care
business will be operated only Monday through Friday AND (4) no more than four (4) children,
in addition to those of the Owner's immediate family, are enrolled in either a part or full time
capacity in such a day care AND (5)the Owner(s) such Lot(s) operating such day care facility will
fully oversee, strict and supervise all children enrolled and will limit such activities strictly
within the confines of their residence(s) and Lot(s) and not outside the same AND, (6)the
Owner(s) of said Lot(s) agree to indemnify and hold the Declarant and the Association fully
harmless from any and all liability and causes of action of whatever kind arising by virtue of the
Owner's operation of such a day care business AND (7)the Owner(s) of said Lot(s) will provide
the Association, prior to commencing such business operations, and at all times during such
business operations, with verification of liability insurance coverage in an amount not less than
$1,000,000 naming the Association and the Declarant and such other parties as the Association
may deem appropriate as additional insured AND, (8) such operation does not interfere or
otherwise violate any other provisions of this Declaration including, but not necessarily limited
to vehicle parking and signage restrictions. Should the Board give written authorization for
such usage, such authorization may be revoked by at least five (5) days prior written notice
delivered to Owner should the Owner(s) operating such day care business fail to strictly adhere
to the provisions contained within this Declaration as well as any additional Rules and
Regulations imposed, from time to time, by the Board. No other uses are permitted. 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
a day care business is authorized. That nothing contained herein shall permit an Owner from
conducting an "in home business" provided that all business activity is carried on within the
residence and that no employees, clients, customers, tradesmen, suppliers, or similar
individuals come to said residence and that no employees, clients, customers, tradesmen,
suppliers, or similar individual come to said residence or are situated therein during the
conduction of such business.
Section 10.2 Minimum Size of Residences. Each residence must have a private enclosed car
shelter for not less than two (2) cars; however, a portion of the interior of said garage may be
improved and/or finished for residential use by the Owner thereof provided that the exterior of
the garage shall not be removed or otherwise modified so as to eliminate the garage door that
provided access thereto. No single structure shall be altered to provide for more than on (1)
family. Residences shall contain at least 1,200 square feet of finished interior living space. In
computing the total square footage of a residence,the basement or daylight basement may be
included but garages and/or enclosed decks shall not be included.
Section 10.3 Use of lot Not To Interfere With Rights of Others. No Lot shall be used in a
fashion which unreasonably interferes with any other Owner's right to use and enjoy the other
Owner's Lots. The Board the ACC designed by it, or the Declarant during the Development
Period, shall determine whether any given use of a Lot unreasonably interferes with those
rights, such determination shall be conclusive.
Section 10.4 No Offensive Activity on Lots. No noxious or offensive activity shall be conducted
on any Lot, nor shall anything be done or maintained on any Lot which may become an activity
or condition which unreasonably interferes with the rights the Declarant gives other Owners to
use and enjoy any part of the Real Property. Nor shall any nuisances be allowed to exist or
remain on any Lot. No activity or condition shall be conducted or maintained on any port of the
Real Property which detracts from the value of the Real Property as a residential community.
No untidy or unsightly condition shall be maintained on any Lot. Untidy conditions shall
include, but are not limited to, publicly visible storage of wood, garbage receptacles, boats,
trailers, mobile homes, recreational vehicles, disabled vehicles of any kind whatsoever, except
where specifically provided for said purpose by the Declarant or the Board within the
community, if at all, landscaping which is not properly maintained. The Board (or the Declarant
during the development Period) shall make the final determination of any violations of this
section. Not withstanding anything in this Article Ten to the contrary, during the Development
Period the Declarant may permit trailers (temporary trailers) or home(s), which may be used by
the Declarant and its authorized representations,to be placed upon Owner's Lots to facilitate
the sale of the Lots and the construction of residences (and residence-associated
improvements) upon the Lots.
Section 10.5 Fences. Fences, walls or shrubs are permitted on side and rear property lines.
Fences shall not be placed within the greater of(i)twenty (20) feet of the front property line, or
(ii)the distance between the front Lot line and the front wall (fa�ade) at the garage of the
primary Residence, subject to (i) the material for the fence,the location, and the size and
construction details shall be subject to the approval of the ACC and (ii) determination whether
such fences, walls or shrubs would interfere with utility easements reflected on the face of the
Plat and other easements recorded elsewhere. In no event shall any fences be allowed
between the front Lot line and the front walt (fa�ade) or the primary Residence. No barbed
wire, chain link or corrugated fiberglass fences shall be erected on any Lot, except that chain
link fencing for any common areas may be considered for approval by the Declarant during the
Development Period or by the ACC thereafter. All fences, open and solid, are to be constructed
not to be considered as part of the dwelling, provided, however, that this shall not be
considered to permit any portion of a dwelling on a Lot to encroach any required setback by
local codes, or to encroach upon another Lot or upon any easements indicated on the face of
the Plat or as otherwise recorded, or upon the Common Areas or Common Maintenance Areas.
In no event shall any structures violate any provisions of any county zoning ordinance, or any
specific setbacks as set forth on the recorded plat map, or any setbacks imposed throught the
establishment of easements for utilities or access.
Section 10.6 Signs. No signs, billboards, or other advertising structures or device shall be
displayed to the public view on any lot except one (1) sign not to exceed three square feet in
area my be placed on a Lot to offer the property for sale or rent and with the exception of any
entry monument and signature which may be installed by the Declarant. Political yard signs on
lots, not more than three (3) square feet in area, of a temporary nature, not to exceed (30)
days, will be allowed during campaign periods on all residential Lots. Within five (5) days after
the date of the election to which the sign refers, such signs must be removed from the Lots.
This section 10.6 (including, but not limited to, the restrictions on the number of signs
and the sign size limit) shall not apply to signs approved under this Section 10.7 of Article Ten
by the Declarant during the Development Period. The Declarant may establish for the duration
of the Development Period, signage guidelines and standards for Lot identification signs, Real
Estate agent/broker identification signs, "for sale" signs and other signage that may be placed
by parties other than the Declarant on any part of the Lots within Fairway Estates,the Common
Ares, the common maintenance areas or public rights-of-way. The Declarant may also develop
an overall theme of 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 Fairway Estates 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 the plat of the Fairway Estates, including the adjacent rights-or-way.
Every Owner of a Lot in Fairway Estates and any Developer or rea) estate agent on
behalf of an Owner, shall submit any proposed signs to the Declarant for approval prior to
installation of the signs. Any signs not specifically approved by the Declarant found anywhere
within Fairway Estates, the Common Areas, the Common Maintenance Areas, on any Lot, or an
adjacent rights-of-way, may be removed and disposed of by the Declarant. The 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 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 sign(s)
removed by Declarant pursuant to this Section.
The Board or the ACC may cause any sign placed on the Property or any adjacent rights-
of-way, in violation of this Article Ten to be removed and destroyed without compensation of
any kind to anyone including, but not limited to, any persons having an 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 Lots or houses and to promote Declarant's project and company and
representatives. Notwithstanding anything in this Section 10.6 of Article Ten to the contrary,
signs placed by the Declarant shall not be subject to any sign restrictions and specifically shall
not be subject to the limitation set forth in this Article Ten on the number of signs and the size
of signs. The Declarant shall not be subject to any guidelines or standards established by
Declarant for other parties pursuant to this Section 10.6 of Article Ten.
Under no circumstances shall the Declarant be liable for, or be required to pay, for all or
any part of the construction, installation or maintenance of any signs which are placed upon
any Lot not owned by the Declarant. This Section shall apply even if Declarant requires an
Owner to place a sign pursuant to the Section 10.6 of Article Ten.
Section 10.7 Animals. No animals, except a maximum of two (2) dogs and (2) cats per Lot.
Cage birds, fish in tanks, and other small household pets, will also be permitted to be
maintained on the Lots. 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-ways when accompanied by their owners. The person accompanying the animal must
exercise "scooping" of animal waste. All pens and enclosures must be screened from view of
other Residences and Lots and must be approved by the ACC 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, the Declarant, during the Development Period, or the Board or
the ACC 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 of$25.00 per day. Any fine imposed by this Section
shall be the personal obligation of the fined Owner and a lien on the Lot of the fined Owner.
The Association shall be entitled to attorney's fees and costs for any action taken to collect such
fines in accordance with the provisions of this Declaration.
Section 10.8 Driveways. All driveways shall be paved with concrete, unless otherwise approved
by the ACC.
Section 10.9 Delegation of Use and Responsibilities. Any owner may delegate, to members of
his family or his tenants, in accordance with the Bylaws of Fairway Estates. Homeowners
Association,the Owner's right of enjoyment of Common Areas and Common Maintenance
Areas. In the event an Owner rents or leases his property, a copy of this Declaration, as well as
any rules and regulations that may be adopted by the Association, shall be made available by
the Owner to the prospective renter at the time of commitment to the rental agreement. Each
Owner shall also be responsible for informing guests and service personnel of the contents of
this Declaration, as well as any rules and regulations that may be adopted by the Association as
they may relate to appropriate community behavior. Each Owner personally and the Owner's
Lot, shall be responsible for any damages to any Common Areas and Common Maintenance
Areas (or any other area maintained by the Association) or to any other Association property
whether real or personal, caused by an Owner's family, guest, tenant, agent, workman,
contractor, or other licensee of invitee. The Association shall have a lien upon the Owner's Lot
the amount of the damages.
Section 10.10 Landscaping Standards. The entire front yard landscaping should be installed
prior to occupancy (weather permitting). The entire landscaping, including the remaining
portions of the side and rear yard shall be installed within twelve (12) months of the receipt of
a Certificate of Occupancy. Each Lot Owner shall be responsible for Installing and maintaining
the landscaping within the adjacent right of way. If inclement weather condition prevent the
timely installation of said landscaping improvements for either front or back yard, the Lot
Owner must make application to the ACC for an extension of time until weather conditions
sufficiently improve.
"Front yard" shall be defined as the lot area extending from the front property line back
to a line measure parallel with the front property line which would coincide with the front wall
of the main dwelling on the Lot, exclusive of any garage projections.
The front yard landscaping shall include all the adjacent public street right-of-way along
the Lot frontage and side frontage out to the edge of the curb or sidewalk in the public street.
Each lot Owner shall be responsible for installing and maintaining the landscaping within his
adjacent right-of-way, except as otherwise provided above.
Section 10.11 Antennas, Satellite Reception. Satellite dishes of no more than one meter in
diameter or diagonal measurement are permitted on the Lots with ACC approval of the location
of the satellite dish in the manner described in Article Nine. 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 Article Nine, and a showing by the
Owner that such installation will be visually shielded from the view of the residents traveling
upon streets located on the Properties.
Section 10.12 Setbacks. No building shall be located on any Lot nearer to the front lot line or
nearer to the side street than the minimum building setback lines adopted by the government
authority with jurisdiction over the Properties.
Section 10.13 Roofs. Roofs on all buildings must be finished with at least a twenty year
composition material,the color of which shall be approved by the ACC. Any other material
must be approved by the ACC.
Section 10.14. Underground Utilities Required. Except for any facilities or equipment provided
by the Declarant or any utility, all electrical service,telephone lines and other outdoor utility
lines shall be placed underground.
Section 10.15 Vehicle Parking and Storage. No Vehicle may be parked on any building Lot or
sidewalks, except on designated and approved driveways or parking areas which shall be hard
surfaced. Vehicles shall be parked only in garages or driveways located entirely on a Lot. No
storage of goods,vehicles, boats, trailers, trucks, campers, recreational vehicles or other
equipment or device shall be permitted in open view from any Lot or right-of-way. (Vehicles,
boats,trailers,trucks, campers and recreational vehicles shall be referred to as "Vehicles".)
This provision shall not exclude parking of up to a combination of two (2) automobiles and
regular sized pickup trucks owned or used by the lot Owner on the designated driveway areas
adjacent to the garages on the Lot. A lot Owner may also park on the driveway recreational
vehicles and/or boat trailers for a period not to exceed 48 hours. This paragraph is also not
meant to disallow permanent (more than 48 hours) parking or storage of vehicles on the Lots,
but if stored, vehicles shall be adequately screened from the view of adjacent rights-of-way and
Lots. Screening of such vehicles must have the approval of the ACC. Upon 48 hours' notice to
the Owner of the improperly parked vehicle,the Board has the authority to have towed, at the
Owner's expense, any vehicles, (except up to a combination of two automobiles and regular
sized pickup trucks owned or used by the Lot Owners) still visible from the right-of-way or
adjacent residences that have been parked on any Lot or within the right-of-way for more than
48 hours. 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 Lot 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.
Section 10.16 Easements for Enforcement Purpose. Owners hereby grant to the Association
an express easement for the purpose of going upon the Lots 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.
Section 10.17 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 Lot herein.
Section 10.18 Drainage. The Owner of any Lot shall not take any action which would interfere
with surface water drainage across that Lot 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 submitted to the ACC.
Section 10.19 Use During Construction. Except with the approval of the Board, no persons
shall reside upon the premises of any Lot until such time as the improvements to be erected
thereon in accordance with the plans and specifications approved by the Board have been
completed.
Section 10.20 Garbage and Refuse. No garbage, refuse, rubbish, cuttings or debris of any kind
shall be deposited on or left upon any Lot unless placed in an attractive container suitably
located and screened from public view. All equipment for the storage or disposal of such
materials shall be kept in a clean and sanitary condition.
Section 10.21 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 Lots, roads, or streets. All clothes lines,
garbage cans, equipment, coolers, wood piles, or storage piles shall be walled in or otherwise
suitably screened to conceal them from the view from neighboring Lots, roads, or streets.
Plans for all enclosures of this nature must be approved by the ACC prior to construction.
Section 10.22 Auto Repair. No auto repair shall be permitted except within enclosed garages
which are kept closed. The only repairs permitted on the balance of the Property are
occasional casual repairs and maintenance activities such as tune-ups or oil changes.
Section 10.23 Exterior Finish. The exterior finishes on the front of houses shall be approved by
the ACC. The entire residence must be painted or stained in colors approved by the ACC. All
metal fire place chimneys shall be either wood or stone wrap.
Section 10.24 Maintenance of Structures and Grounds. Each Owner shall maintain his Lot and
residence thereon in a clean and attractive condition, in good repair and in such fashion as not
to create a fire hazard.
Section 10.25 Firearms. The use of firearms, within Fairway Estates is expressly prohibited.
Section 10.26 Dirt Bikes and/or ATV. No unlicensed motor vehicles, including motorcycles, dirt
bikes, motor scooters, ATV's etc., shall be permitted on any road within the plat, nor shall dirt
bikes or ATV's be permitted to operate on any Owner's lot.
Section 10.27 Damage Repair. All Owners agree to repair immediately any damage to any
utilities adjacent to their lot or lots, in the event any of the utilities are cracked broken, or
otherwise damaged as a result of dwelling construction activities, or other activities by Owner,
by persons acting for Owner, or by persons in or around the property at the request or with the
consent of the Owner.
Section 10.28 Building Materials. All home constructed on each lot shall be built of new
materials with the exception of"decor" items such as used brick, weathered planking, and
similar items. The Committee will determine whether a used material is a "decor" item. In
making this determination,the Committee will consider whether the material harmonizes with
aesthetic character of Fairway Estates development 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 "LP" type siding, brick, authentic stone siding, OSB LAP or vinyl siding OR
concrete siding of a color approved by the Committee.
The exterior of all construction on any Lot 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 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 Committee or Board will establish an approval process and color guidelines. Any change of
color as to the exterior of any existing home within Fairway Estates will be subject to the same
approval process.
Section 10.29 Codes. All construction shall conform to the requirements of the State of
Washington's rules and regulations 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.
Section 10.30 Entry for Inspection. Any agent or member of the Declarant or any member of
the ACC may at any reasonable predetermined hour upon 24 hours notice and only during
construction or exterior remodeling, enter and inspect the structure to determine if there has
been complied 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 lots for the purpose of making and carrying out such inspections.
Section 10.31 Authority to Adopt Additional Rules and Restrictions. After the Development
Period, the Association shall have the authority to adopt additional written rules and
restrictions governing the use of the Properties, provided such rules and restrictions are
consistent with the purposes of the Declaration, and to establish penalties for violation of those
rules and restriction. If rules and restrictions are adopted,they, along with the established
penalties, shall be available to all Members upon request.
Section 10.32 Enforcement. The Association, or the Declarant during the Development Period,
may, but is not required to,take any 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 64.38, 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 64.38) 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 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 ELEVEN
EASEMENTS
Section 11.1 Easement for Encroachments. Each Lot is, and the Common Areas 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 as said improvements remain.
Section 11.2 Easements on Exterior Lot Lines. In addition to Easements reserved on any plat of
the properties or shown by instrument of record, easements for utilities and drainage are
reserved for the Declarant or its assigns, over a five-foot wide strip along each side of the
interior Lot lines, and seven feet over the rear and front of each Lot, and over, under, and on
the Common Areas. 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 easements, or which would interfere with the
Sound Barrier Wall. The easement area of each Lot and all improvements with it shall be
maintained continuously by the Owner of such a Lot, except those improvements for which a
public authority, utility company or the Association is responsible.
Section 11.3 Association's Easement of Access. The Association, the ACC, and its agents shall
have an easement for access to each Lot and to the exterior of any building located thereon
during reasonable hours as may be necessary for the following purpose: (a) cleaning,
maintenance, or repair of any home or Lot as provided in this Declaration; (b) repair,
replacement or improvement or any Common Area accessible from that Lot, including but not
limited to the repair, maintenance or replacement of the Sound Barrier Wall; (c) emergency
repairs necessary to prevent damage to the Common Areas or to another Lot, 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; and (e) all acts necessary to enforce these
Covenants.
Section 11.4 Easement for Declarant. Declarant shall have an easement across all Common
Areas 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 TWELVE
MORTGAGEE PROTECTION
Section 12.1 Mortgagees. Notwithstanding and prevailing over any other provisions of the
Declaration,the Association's Articles of Incorporation or Bylaws, or any rules, regulations 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 Lot or the improvement of any
Lot.
Section 12.2 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.
Section 12.3 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 Lot, 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.
Section 12.4 Acquisition of Lot by Mortgagee. At such time as the Mortgagee shall become
entitled to possession of the Lot, the Mortgagee shall be subject to all of the terms and
conditions of the Declaration, and the Articles, Bylaws, rules and regulations 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 Lot 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 Lot.
Section 12.5 Reallocation of Unpaid Assessment. If it is deemed necessary by the Association,
any unpaid assessment against a Lot foreclosed against may be treated as a common expense
of other lots. Any such unpaid assessment shall continue to exist as a personal obligation of the
defaulting Owner of the respective Lot to the Association.
Section 12.6 Subordination. The liens for assessments provided for in this instrument shall be
subordinate to the lien of any Mortgage, or other security interest placed upon a Lot or Housing
Unit as a construction loan security interest or as a purchase price security interest and the
Association will upon demand, execute a written subordination document to confirm the
particular superior security interest.
Section 12.7 Mortgagee's Rights. Any Mortgagee shall have the right on request therefore 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 ninety (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 meetings.
Section 12.8 Limitation on Abandonment of Common Areas. The Association shall not,
without the prior written approval of seventy five percent (75%) of the Mortgages, seek to
abandon the Common Areas for reasons other than substantial destruction or condemnation of
the property. Such abandonment shall also be subject to all applicable land use laws and rules.
Section 12.9 Notice. If such notice has been requested in writing, Mortgages shall be entitled
to timely written notice of(a) substantial damage or destruction of any Housing Unit or any
part of the Common Areas of facilities; (b) any condemnation or eminent domain proceedings
involving any Housing Units or any portion of Common Areas or facilities; (c) any default under
this Declaration or the Article, Bylaws or rules and regulations 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 Mortgagees.
ARTICLE THIRTEEN
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 deeps appropriate; however, any agreement for professional
management of the Properties, or any other contract providing for services by the Declarant
must provide for termination by either party without cause after reasonable notice.
ARTICLE FOURTEEN:
INSURANCE
Section 14.1 Coverage. The Association may purchase as a Common Area Expense and shall
have authority to and may obtain insurance for the Common Areas against loss or damage by
fire or other hazards in an amount sufficient to cover the full replacement value in the event of
damage or destruction. It may also obtain a comprehensive public liability policy covering the
Common Areas. The comprehensive public liability coverage shall be in an amount to be
determined by the Association. The minimum amount of such insurance shall be $500,000. It
may also obtain insurance to cover the Board,the ACC, its agents and employees from any
action brought against them arising out of actions taken in furtherance of the Association's
duties under this Declaration.
Following the development period, all such insurance coverage shall be written in the name of
the Association as trustee for each of the Members of the Association. The Association shall
review the adequacy of the Association's insurance coverage at least annually. All policies shall
review the adequacy of the Association's insurance coverage at least annually. All policies shall
include a standard mortgage's clause and shall provide that they may not be canceled or
substantially modified (including cancellation for nonpayment of premium)without at least ten
(10) days prior written notice to any and all insured named therein, including Owners and
Institutional First Mortgagees that have requested notice.
Section 14.2 Replacement, Repair After Loss. In the event of the damage or destruction of the
Common Areas 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 Areas to as good a
condition as they were when the loss occurred; provided, however that the Association's
election not to rebuild the Common Areas shall require the approval of seventy five percent
(75%) 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 Areas.
ARTICLE FIFTEEN:
RULES AND REGULATIONS
The Association and/or its Board of Directors is hereby authorized and empowered to adopt
rules and regulations governing the use of the Properties 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 64.38,the Bylaws and any resolutions passed by the Board.
All Lot Owners shall be given written notice of the rules and regulations in the manner required
by RCW Chapter 64.38
ARTICLE SIXTEEN
PRESERVATION OF REMEDIES
Section 16.1 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, ACC, or Declarant, are in addition to, and not limitation of, any other remedies
provided by law.
Section 16.2 No Waiver.The failure of the Association, the ACC, the Declarant or of any of their
duly authorized agents or any other 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 or 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 the resolution of the Board of
Directors.
ARTICLE SEVENTEEN
CONDEMNATION
In the event of the partial condemnation of the Common Areas, the proceeds shall be
used to restore the remaining Common Area, and any balance remaining shall be distributed to
the Association. In the event that the entire Common Area 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 Lot Owner or to any other party derogation of the rights
of the First Mortgagee of any Lot.
ARTICLE EIGHTEEN
GENERAL PROVISIONS
Section 18.1 Binding Effect. All present and future Owners or occupants of Lots shall be subject
to and shall comply with the provisions of this Declaration, and the Articles, Bylaws and rules
and regulations of the Association, as they may be amended from time to time, are accepted
and ratified by such Owner or occupant, 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 Lot, as though such provisions were recited and stipulated at length in each and
every deed and conveyance or lease thereof.
Section 18.2 Enforcement by Court Action. The Association,the Declaration,the ACC,the
Homeowner's Association, or any Lot Owner shall have the right to enforce, by any proceedings
at law in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or
hereafter imposed by the provisions of the Declaration. Should the Association or any Owner
employ council to enforce any of the foregoing covenants, conditions, reservations, or
restrictions, all costs incurred in such enforcement, including a reasonable fee of counsel, with
or without legal action, 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.
Section 18.3 Enforcement by Self Help. The Declarant,the ACC,the Association, or the duly
appointed agent of either, may enter upon any lot, 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.
Section 18.4 Condition Precedent to Action. Prior to taking action either by court or by self
help,written notice shall be given to the offending Lot 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 thirty (30) days.
Section 18.5 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 the lien upon such Lot, enforceable as other liens herein.
Section 18.6 Owner Obligation. Should the Lot Owner object to the complaints of the
Declarant, the Association or ACC in writing within a period of fifteen (15) days after the
complaint is made and, further, should the parties not agree on property maintenance or other
matters complained of, the matter shall be submitted to binding arbitration. The arbitration
shall be binding upon the parties. If the parties cannot agree upon an arbitrator, each party
shall choose on arbitrator and they, in turn, shall choose a third. The arbitration shall be
conducted in accordance with the rules of arbitration under the laws of the State of
Washington in existence at the time of any such arbitration, currently found in Chapter 7.04A
RCW.
Section 18.7 Costs and Attorneys 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, lawsuit,trial, appeals, and any action, negations,
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.
Section 18.8 Failure to Enforce. No delay or omission on the part of the Declarant of the
Owners of other Lots 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 Declarant for or on account of its failure to bring
any action for any breach of those covenants, conditions, reservations, or restrictions, or for
imposing restrictions which may be unenforceable.
Section 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.
Section 18.10 Interpretation. In interpreting this Declaration,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 Properties by providing a common plan for the development of Fairway
Estates.
Section 18.11 Term. This Declaration shall be effective for an initial term of twenty (20) years,
and thereafter by automatic extension for successive periods of five (5) years each, unless
terminated, or amended, at the expiration of the initial term or any succeeding five (5)year
term by a termination agreement or amendment executed by the then Owners of not less than
seventy-five percent (75%) of the Lots then subject to this Declaration. Any termination
agreement or amendment, must be in writing, signed by all the approving Owners, and must be
recorded with the Thurston County Auditor.
Section 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-on (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.
Section 18.13 Method of Notice. Any notice required by the Declaration or the Articles or
Bylaws of the Association or the rules and regulations adopted by the Association shall be
deemed properly given when personally delivered, deposited in the United States mail, postage
prepaid, or when transmitted by facsimile, or by overnight mail service.
Section 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
AMENDMENT AND REVOCATION
Section 19.1 Exclusive Method. This instrument may be amended and partial or completely
revoked only as herein provided or otherwise provided by law.
Section 19.2 Amendment by Declarant. Notwithstanding any other provision of this
Declaration,this Declaration can be amended at any time by the Declarant prior to the time
that seventy-five percent (75%) of the Lots have been sold to others than Declarant Developer.
That all Lot Owners agree to be bound by such amendment or amendments as made by the
Declarant pursuant to this provision. Thereafter this Declaration can be amended only as
provided for in this Declaration.
Section 19.3 Prior Approval by FHA/HUD. Regardless of whether or not seventy-five percent
(75%) of the lots have been sold to others than Declarant Developer, in the event any loan with
respect to any lot or building constructed thereon is insured through either the Federal Housing
Administration or the Department of Veterans Affairs or any programs sponsored by either
such agency, then the insuring agency must give written approval before any of the following
actions can be approved by either the Declarant or the Lot Owners: (i) Annexation of additional
properties; (ii) Dedication of any additional properties; and (iii) Amendment to this Declaration.
Section 19.4 Voting. This Declaration may be amended at any annual meeting of the
Association, or at special meeting called for such purpose, if seventy five percent (75%) 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 seventy five percent (75%) or more of the Owners vote for
such amendment by written ballot. Notice of any proposed amendment shall be given to all Lot
Owners not less than thirty (30) 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 Mortgages 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.
19.4.1 Voting Rights;
19.4.2 Assessments, assessment liens and subordination of such liens;
19.4.3 Reserves for maintenance, repair and replacement of Common Areas;
19.4.4 Insurance or fidelity bonds;
19.4.5 Responsibility for maintenance and repair,
19.4.6 Contraction of the project or the withdrawl of property from the Properties;
19.4.7 The boundaries of any Lot;
19.4.8 Leasing of Housing Units other than as set forth herein,
19.4.9 Imposition of any restrictions on the right of an Owner to sell or transfer his or
her Lot;
19.4.10 Any decision by the Association to establish self-management when
professional management had been required previously by an Institutional First Mortgages;
19.4.11 Restoration or repair (after hazard damage or partial condemnation) in a
manner other than that specified in this Declaration.
19.4.12 Any action to terminate the legal status of the properties after substantial
destruction or condemnation occurs; or
19.4.13 Any provisions which are for the express benefit of Institutional First
Mortgagees.
Section 19.5 Effective Date. Amendments shall take effect only upon recording with the Pierce
County Auditor of the county in which this Declaration is recorded.
Section 19.6 Protection of Declarant. For such time as Declarant shall own Lots located in the
Properties there shall be no amendments to the Declaration, the Articles of Incorporation, the
Bylaws of the Association, or any Rules and Regulations adopted by the Association which:
19.6.1 Discriminate or tend to discriminate against the Declarant's rights.
19.6.2. Change Article One ("Definition") in a manner which alters the Declarant's right
or status.
19.6.3 Alter the character and rights of inembership or the rights of the Declarant as set
forth in Article Two.
19.6.4 Alter its rights as set forth in Article Nine relating to architectural controls.
19.6.5 Alter the basis for assessments, or the Declarant's exemption from assessments.
19.6.6 Alter the number or selection of Directors as established in the Bylaws.
19.6.7 Alter the Declarant's rights as they appear under this Article.
Section 19.7 Notice. Any notice required hereunder shall be deemed effective when personally
delivered or three days after mailing by certified and regular mail to the owner of public record
at the time of such mailing to such Owner's address as it appears on the Pierce County
Assessor's tax records and to the street address of the lot(s) herein. 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 lien holder.