Protective
covenants, conditions and restrictions for the
Bentalit Village Subdivision
KNOW ALL MEN BY THESE PRESENTS, that whereas the undersigned are the
sole owners of properties comprising the Bentalit Village Subdivision
and
WHEREAS, the undersigned desire to assure the continued development of
the Bentalit
Village Subdivision on a high level for the benefit of the future
property owners and, for protection of property values therein, do
desire to place on and against certain real property within the
Bentalit Village Subdivision certain protective covenants regarding the
improvements and/or use of the same;
NOW,THEREFORE, the undersigned do hereby establish and record the
following declarations, reservations, protective covenants,
limitations, conditions, restrictions, and provisions regarding the use
and/or improvements of the property located in Bentalit Village
Subdivision as show on Plat#
___________________________,
dated_______________________, Talkeetna Recording District,
Third Judicial District, State of Alaska.
NOW THEREFORE, it is hereby declared that all of the Subject Property
above shall be held, sold and conveyed subject to the following
covenants, conditions and restrictions, which are for the purpose of
protecting the value and desirability of, and which shall run with, the
real property and be binding on and inure to the benefit of all parties
having any right, title or interest in the Subject Property or any part
thereof, including their legal representatives, heirs, successors and
assigns.
GENERAL PROVISIONS
TERM
These covenants are to run with the land and shall be binding on all
parties and all persons claiming under them for a period of twenty-five
(25) years from the date these covenants are recorded, after which time
said covenants shall be automatically extended for successive periods
of ten (10) years unless an instrument signed by a majority of the then
owners of the lots has been recorded, agreeing to change said covenants
in whole or in part. The purchase of any lot in this subdivision
shall constitute an agreement on the part of such purchaser to be bound
by these protective covenants in their entirety and to abide by the
same.
ENFORCEMENT
Enforcement shall be by proceedings at law or in equity against any
person or person violating or attempting to violate said covenants by
any affected person, including any owner, either to restrain violation
or to recover damages. Failure by any owner to enforce any
covenant or restriction herein contained shall in no event be deemed a
waiver of the right to do so thereafter. Suit to enforce the
provisions may be brought by the Bentalit Village Subdivision
Homeowners Association, or by any individual or individuals aggrieved
by a violation of these provisions.
USE
No lot shall ever be used in a fashion which unreasonably interferes
with the other lot owners' right to the use and enjoyment of their
respective properties. The Board of Directors of the Homeowners
Association shall determine whether any given use of a lot unreasonably
interferes with those rights and such determination shall be conclusive.
LOT USAGE
All lots shall be used for occasional or permanent residential or
recreational purposes only and shall not interfere in any manner with
the use of other lots in the Bentalit Village Subdivision, except for
Lot Five (5), Block Two (2) and Lot Ten (10) Block Two (2) on which a
lodging operation is permitted. Natural vegetation and contours
of any lot or property shall not be disturbed except as reasonably
necessary for the esthetic development of the property. Clearing
for defensible fire space protection, building sites, lawns, driveways,
gardens and aircraft and/or boat parking is permitted. No lot
shall be re-subdivided, split or broken up in part or parcel or
recombined into larger lots for sale or resale, lease, or rent.
SEVERABILITY
Invalidation of any one of these covenants by judgment of court order
shall in no way affect any of the other provisions which shall remain
in full force and effect.
HOMEOWNER'S ASSOCIATION
MANDATORY MEMBERSHIP
A Homeowners' Association is hereby established to provide for the
operation and maintenance of the subdivision, as is
appropriate. Said Association shall be responsible for providing
such services as are otherwise not available through the State, a
political subdivision or by private contractual arrangement or such
services as are authorized by the Association. Such services may
include, but are not limited to the following: snow
removal: street improvement or repairs; enforcement of
conditions, covenants and restrictions applicable to the subdivision;
subdivision improvements; enforcement of safety conditions as may
be authorized by the Association; and any other services so
authorized by the Association. Every purchaser, his heirs,
assigns, and successors in the ownership of lots in this subdivision
agrees as a condition of purchase that he is automatically a member of
the Homeowners Association. All lot owners shall abide by the
policies now set and as later amended by a majority decision of the
membership of the Association. They will support such policies
and will pay such assessments as may from time to time be levied.
The Homeowners Association shall be operated by the undersigned until
such time as the undersigned choose to relinquish control to the
membership or July 1, 2007, whichever first occurs, at which time the
Association shall be activated and there will be an election of
directors and officers, and dues will be established and levied as
determined by the Board of Directors. The Homeowner Association
will be named Bentalit Village Homeowners Association .
VOTING RIGHTS
The Association shall have one class of voting rights. Each lot
owner, whether such owner is an entity, person or more than one person,
shall be entitled to one vote and only one vote for each lot owned,
regardless of the number of individuals or entitles jointly owning each
lot. Where more than one person or entity holds an interest in
any lot, such persons or entitles shall decide among themselves how the
vote for such lots shall be exercised and by whom. Eligible votes
may be cast on all matters that may come before a meeting of the
Association.
CREATION OF LIEN AND PERSONAL OBLIGATIONS FOR ASSESSMENTS
Lot owners for each lot owned within the subdivision hereby covenant,
and each owner of any lot by acceptance of a deed therefore, whether or
not it shall be so expressed in such deed, is deemed to covenant
and agree to pay the Association: (1) Annual assessments or
charges, and (2) Special assessments for capital improvements, such
assessments to be established and collected as hereinafter provided.
CONVEYANCE AND SUBORDINATION
The association shall have the power to assess fees to the lot owners
to achieve the objectives of the Homeowners' Association. The
lien of the assessments provided for herein shall be subordinate
to the lien of any mortgage. Sale or transfer of any lot shall
not effect the lien. However, the sale or transfer of any lot
pursuant to mortgage foreclosure, or any proceeding in lien thereof,
shall extinguish the lien of such assessments as to payments which
became due prior to such sale or transfer. No sale or transfer
shall relieve such lot from liability for any assessment or installment
thereof thereafter becoming due or from the lien thereof.
PURPOSE OF ASSESSMENTS
The assessments levied by the Association shall be used exclusively for
the purpose of promoting the recreation, health, safety, enjoyment and
welfare of the owners, including the enforcement of these covenants,
conditions and restrictions, and for the improvement and maintenance of
roads and property.
EFFECT OF NONPAYMENT ASSESSMENT, REMEDIES OF THE ASSOCIATION
Any assessment not paid within thirty (30) days after the due date as
established by the Board of Directors shall bear interest from the due
date at the rate of TEN AND ONE-HALF PERCENT (10 ½) per
annum. The Association may bring an action at law against the
Owner personally obligated to pay the same, or foreclose the lien
against the property. No Owner may waive or otherwise escape
liability for the assessment provided for herein by non-use or
abandonment of his lot.
NUISANCES
No noxious or offensive activity shall be carried on upon such lot, nor
shall anything be done thereon which may be or may become an annoyance
or nuisance to the neighborhood. No trade or business of an
offensive nature shall be permitted upon any lot nor shall any trade or
business requiring a license or permit for hunting, fishing or
outfitting be permitted on any lot unless such trade or business is
located on Lot Five (5), Block Two (2) or Lot Ten (10) Block Two
(2).
ANIMALS
No animals, livestock or poultry may be raised, bred or kept on any lot
for commercial purpose. A maximum of two dogs may be kept on any
lot or tract. No animal may be kept or housed closer than 25 feet
to any lot line unless within the principal residence. No vicious
animal may be kept on the premises. All animals must be confined
to the premises at all times except when under the direct physical
control of the owner. No animal may be kept unless the reasonable
expectation of other occupants and owners to peace, quiet and a
sanitary environment is maintained, so that no other occupants or
owners of properties within the subdivision are subjected to unsightly
premises or to noises or odors. Any person who fails to keep an
animal in accordance with those covenants more than 10 days after
written notice from an affected owner protected under these covenants
shall immediately remove the offending animal and may not keep that or
a similar animal on the premises for a period of 12 months.
INDEMINIFICATION
The subdividers, their agents, employees, successors, and assigns
shall be held harmless from all claims, damages, liabilities and losses
arising out of or as a result of the planning, management, design,
construction and/or installation of any aspect of the subdivision as
provided for in this document.
PRIVATE AIRSTRIP
The Airstrip shown on Plat #____________________ as
Tract A is owned by Bentalit Village Homeowners
Association.. The Board of Directors of the Bentalit
Village Homeowners Association, will set policy governing the usage,
maintenance, landing fees, insurance and all other aspects of the
runway. The Tract A will be continued as an active aircraft
take off/landing area in perpetuity.
SECURITY AND INSURANCE
The Board of Directors of the Association will set policy on all
matters of security and insurance.
BUILDING SIZE AND VALUE
TEMPORARY STRUCTURES
No structure of a temporary character, trailer, basement, tent, shack,
garage, barn, or other outbuilding, shall be used on any lot as a
permanent residence.
GARBAGE AND REFUSE DISPOSAL
No lot shall be used or maintained as a dumping ground for
rubbish. Trash, garbage or other waste shall not be kept except
in sanitary containers or burn pits. All incinerators, burn pits,
or other equipment for the storage or disposal of such material shall
be kept in a clean and sanitary conditions.
SEWAGE DISPOSAL
No individual sewage-disposal system shall be permitted on any lot
unless such system is designed, located and constructed in accordance
with the requirement, standards and recommendation of the DEC
(Department of Environmental Conservation).
DWELLING QUALITY AND SIZE
No dwelling shall be permitted on any lot of less than three hundred
twenty (320) square feet. All outbuildings, garages, storage
buildings, shall be of the same quality and workmanship as the
recreational/residential dwelling. All buildings or structures in the
subdivision shall be built in compliance with applicable building codes
and any other applicable regulations of any governmental entity having
regulatory control of such functions.
BUILDING LOCATIONS
No buildings shall be located on any lot nearer than 75 feet of any
shoreline of any lake. No building shall be located nearer than
ten (10) feet to any interior lot line. No sewage disposal system
of whatever kind, shall be located nearer any water course or shoreline
than one-hundred (100) feet. For the purpose of the
covenant, eaves, steps, and open porches shall not be considered
as part of a building, provided, however, that this shall not be
construed to permit any portion of a building on a lot to encroach upon
another lot. No building shall be located nearer than 30 feet of
the edge of Tract A nor in the approach zone to Tract A (the
runway), nor on any easement designated for trails.
SEWER AND WATER
Sewer and water installations shall in all cases meet or exceed minimum
requirements of governmental entities having regulatory control of
same, and as required, shall be approved by such entity.
RESERVATION OF RIGHT TO ADD PROPERTY
Tom B. Brion or William F. Brion, their heirs, assigns or agents
reserve the right to add property to the subdivision and the owners of
lots thereby created will become members of Bentalit Village
Homeowners, with full voting rights and membership privileges.
BY-LAWS OF BENTALIT VILLAGE
HOMEOWNERS ASSOCIATION
ARTICLE I
NAME AND PLACE
SECTION 1
The Project: The provisions of these BY-Laws are applicable to
the lots in the project known as Bentalit Village Subdivision,
consisting of that certain parcel of land and all improvements situated
thereon, located in the state of Alaska, and more particularly
described as follows:
Legal description goes here.
SECTION 2
The Association: The name of the Association is Bentalit Village
Homeowners' Association, hereinafter referred to as the
"Association", organized as a non profit corporation under the
laws of the State of Alaska, and whose membership shall be comprised of
all owners of lots within any phase of the project, or within any
additions or annexations thereto.
SECTION 3
Applicability of By-Laws: The provisions of these By-Laws are
applicable to all phases of the project, and any additions and
annexations thereto. All present and future owners of any lot in
the project, and other persons who at any time shall use any part of
the project, are subject to these By-Laws. The mere acquisition,
lease, rental or occupancy of any of the lots of the project shall
signify that these By-Laws are accepted and ratified, and compliance
with such By-Laws shall be undertaken.
ARTICLE II
DEFINITIONS
SECTION 1
Project. The project shall mean Bentalit Village Subdivision as
described and established in the certain Declaration dated,
_____________, and recorded in Book _____, at Page ______, in the
Records of the Palmer Recording District, Third Judicial District,
State of Alaska, and such additional properties as set forth in the
Declaration.
SECTION 2
Association. The Association shall mean and refer to the Bentalit
Village Homeowners Association, its successor and assigns.
SECTION 3
Common Area. The common area shall mean all real property now or
hereafter owned by the Association for the common use and enjoyment of
the owners, whether or not said real property is actually owned by the
Association; the criteria being that its use will benefit the Owners in
common and will be available for the use of all Owners.
SECTION 4
Lot. Lot, as used herein, shall mean the individual parcel of land
within the project, as described and numbered on subdivision plats
filed, or to be filed, and recorded in the Palmer Recording District,
State of Alaska, pertaining to land within the project, including all
improvements thereon and such other additional properties as set forth
in the Declaration, but not including any part of the common area or
other tracted areas.
SECTION 5
Owner. Owner shall mean and refer to the record owner, whether
one or more persons or entities, of a fee simple title to any lot which
is part of the Properties, including contract sellers, but excluding
those having such interest merely as security for the performance of an
obligation. Owner shall further include one or more persons or
entities who are purchasing pursuant to an installment or land sales
contract and who will not be entitled to receive fee simple title of
record until they have performed the terms of said installment or land
sales contract (hereinafter referred to as "land sale contract" and/or
"land sale contract purchaser").
SECTION 6
Declaration. The Declaration shall mean and refer to the Declaration of
Covenants, Conditions and Restrictions applicable to the project, and
recorded in the Palmer Recording District, Third Judicial District,
State of Alaska: the Declaration shall mean and include the
Declaration dated __________ and filed for record in Book ____ , at
Page ______, records of the Palmer Recording District, Third Judicial
District, State of Alaska, as it may from time to time be amended.
SECTION 7
Member. Member shall mean and refer to those persons
entitled to membership as provided Article III, Section 1.
SECTION 8
Mortgage and Deed of Trust. Mortgage and Deed of Trust as used
herein, shall be deemed to be equivalent, and the use of one such term
shall where the sense requires be deemed to also mean the other, both
meaning a real property security interest in one or more lots located
within the project.
ARTICLE III
MEETINGS OF MEMBERS
SECTION 1
Membership. All owners of lots within the project shall
constitute the Association of Owners, here called the
Association. The owner of any lot shall automatically become a
member of the Association and shall remain a member thereof until such
time as his ownership of such lot ceases for any reason;
provided, however, that to such extent and for such purposes, including
the exercise of voting rights, as shall be provided by agreement of
sale of any lot and which is filed with the Board of Directors of the
Association, the purchaser of such lot shall be deemed to be the owner
thereof. Each owner of a lot in the Bentalit Village Subdivision,
shall be entitled thereby to the non severable use and enjoyment of the
common areas and facilities of the development, subject to rules and
regulations governing the use and enjoyment thereof, as are set out
herein and in the Declaration establishing the subdivision or as may
otherwise by provided by the Board of Directors of the Association.
SECTION 2
Notice of Mortgages. Upon special request for notice of the
meeting of members, or the Board of Officers/Directors, of the
Association, the holder of any duly recorded mortgage against any lot
shall be entitled to receive a copy of any and all notices permitted or
required to be given to members, in order that the holder of any
mortgage requesting such notice may receive such notices sent to the
members from and after receipt by the Association of such request,
until such request is withdrawn, or said mortgage is discharged of
record.
SECTION 3
Failure of Notice. If notice is given pursuant to the provisions
of this article, the failure of any member, or mortgagee, to receive
actual notice of the meeting shall in no way invalidate the meeting or
any proceedings thereat.
a. The failure of any member of the Association to inform the Secretary
as their correct name and address to be used for the service of notice
of meetings, shall constitute a waiver of all notice requirements of
these By-Laws, and any meetings of the Board or members of the
Association held during the continuance of such failure, shall be valid
notwithstanding the lack of notice of such meetings to any such member.
b. The presence of a member, in person or by proxy, at any meeting of
the Board, or of the Association membership, shall constitute a waiver
of any other notice of the meeting, unless such member shall at the
opening of such meeting, object of the holding of the same for
noncompliance with the notice provision of these By-Laws.
c. The presence of all members, in person or by proxy, at any meeting
shall render the same a valid meeting, unless any member shall at the
opening of such meeting, object to the holding of the same for
noncompliance with the notice provisions of these By-Laws. Any
meeting so held without objection, shall be valid for all purposes,
notwithstanding the fact that no notice of meeting was given, or that
the notice given was improper, and any general business may be
transacted and any action my be taken at such meeting; provided
however, that where a member has pledged his vote by mortgage, Deed of
Trust, or agreement of sale, only the presence of the pledgee will be
counted in determining whether notice is waived with regard to business
dealing with such matters upon which the member's vote is so pledged.
SECTION 4
Quorum. Three Officers/Directors must be present to
constitute a quorum at any meeting of the Association. Two
affirmative votes are required for any action to be taken. If An
Officer/Director cannot attend a telephone vote or written proxy shall
suffice as a valid vote.
SECTION 5
Voting. Any person, firm, corporation, trust or other legal
entity, or a combination thereof, owning any lot in said project in his
or its name shall be a member of the Association, and either in person
or by proxy entitled to one (1) vote for each lot so owned at all
meetings of the Association. Any provisions to the contrary
notwithstanding co-owners or joint owners shall be deemed one
owner. The authority given by a member to another person to
represent such member at meetings of the Associations shall be in
writing, signed by such member or if a lot is jointly owned, then
by all join owners, or if such member is a corporation, by the proper
officers thereof, and shall be filled with the Secretary, and unless
limited by its terms, such authority shall be deemed good until revoked
in writing. An executor, administrator, guardian, or trustee may
vote in person or by proxy at any meeting of the Association with
respect to any lot owned or held by him in such a capacity whether or
not the same shall have been transferred to his name by a duly recorded
conveyance. In case such lot shall not have been transferred to
his name, he shall satisfy the Secretary that he is the executor,
administrator, guardian, or trustee holding such lots in such
capacity. Whenever any lot is owned by two or more jointly
according to the record of the Association, the vote therefore may be
exercised by any one of the owners present in the absence of protest by
the other or others, PROVIDED, HOWEVER, that when the vote of owner or
owners has been pledged by mortgage, deed of trust, or agreement of
sale of any lot or interest therein, an executed copy of which is
on file with the Board of Directors of the Association, only the vote
of the pledge will recognized upon those matters upon which the owner
or owners' vote is so pledged.
SECTION 6
Adjournment. Any meeting of the Association may be adjourned from
time to time to such place and time as may be determined by majority
vote of the members present, whether a quorum be present or not,
without notice other than the announcement at the meeting. At any
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted by a quorum at the meeting
as originally called.
SECTION 7
Annual Meeting. The annual meeting of the Association shall be
held at a time and place stated in each annual assessment letter which
is to be posted no later than January 31st of each year.
ARTICLE IV
BOARD OF DIRECTORS/OFFICERS
SECTION 1
Officers/Directors. The number of the Officers/Directors shall be
three (3). The dual positions are needed due to the remote
location of the Association. This number was decided on to enable
business of the association to be handled. Officer and Director
as used herein, shall be deemed to be equivalent, and the use of one
such term shall be deemed to also mean the other. The principal
directors/officers of the Association shall be a President, Vice
President, a Secretary and a treasurer, all of whom shall be elected by
the Association. the Secretary and Treasurer may be combined into
one office.
SECTION 2
Term of Office. The members present at the annual meeting
shall elect a President/Director, Vice-President/Director and
Secretary-Treasurer/Director every year.
SECTION 3
Vacancies. Except as otherwise provided, any vacancies occurring
by an Officer/Director either by resignation or removal, shall be
filled by a majority vote of the members present at the next meeting.
SECTION 4
Removal of Officers/Directors. Any Officer/Director may be
removed by a majority vote of the members present at the next meeting,
when in their judgement the best interests of the Association would be
served doing so.
SECTION 5
President/Director. The President will be the principal
Officer/Director of the Association and shall, in general, supervise
and control all business and affairs of the Association. The
President shall preside at all meetings. The President shall sign
contracts.
SECTION 6
Vice-President/Director. In the absence of the President, or in
the event of his/her inability to act or refusal to act, the
Vice-President/Director will perform the duties of the
President/Director, and when so acting, will have all the powers of and
be subject to all the restrictions upon the President/Director.
SECTION 7
Secretary/Director. The Secretary/Director shall:
a. Keep a journal of proceedings of the Association, record all votes
at the meetings of the Association.
b. Provide for the standardization and maintenance of all forms, books,
and records of the Association.
c. Keep the corporate seal and affix the seal to all contracts to be
executed by the Association.
SECTION 8
Treasurer. The Treasurer/Director shall:
a. Manage, deposit, and invest all funds of the Association, as
voted on by a majority vote of the Officers/Directors.
b. Disburse money for all Association obligations.
c. Keep regular books or accounts of all Association financial reports
or audits.
ARTICLE V
CONTRACTS, CHECKS, DEPOSITS, FUNDS AND RECORDS
SECTION 1
Contracts. The Officers/Directors may authorize any agent or
agents of the association, in addition to the Officers/Directors so
authorized by these By-Laws, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Association,
and such authority may be general or confined to specific instances as
authorized by the Officers/Directors.
SECTION 2
Checks, Drafts, Etc. All checks, drafts, or orders for payment of
money, notes or other evidence of indebtedness issued in the name of
the Association and in such manner shall from time to time be signed by
an Officer/Director.
SECTION 3
Deposits. All funds of the Association shall be deposited from
time to time to the credit of the Association in such banks, trust
companies or other depositories as the Officers/Directors may select.
SECTION 4
Gifts. The Officers/Directors may accept on behalf of the
Association any contribution, gift, bequest or device for any special
purpose of the association.
SECTION 5
Books & Records. The Association shall keep correct and
complete records of financial transactions and accounts and shall also
keep minutes of the proceedings of its Officers/Directors. All
books and records of the Association may be inspected by any member, or
his agent attorney for any proper purpose at any reasonable time as
long as an Officer/Director is present.
SECTION 6
Fiscal Year. The fiscal year of the association shall begin on
the first day of January and end on the last day of December of the
same year.
ARTICLE VI
OBLIGATIONS OF THE OWNERS,
THE ASSOCIATION AND THE BOARD
SECTION 1
Expenses, Assessments.
a. Every owner of a lot within the project shall contribute pro rata
toward the expense of administration of the Association, including but
not limited to all types of insurance that the Association is required
to maintain, the cost of operation, maintenance, taxes, utilities
billed or charged to the Association, repair and replacement of
the common area facilities, and including adequate reserve funds for
same. The Board of Directors shall establish the annual budget of
the Association, including the total estimated amount required for the
cost of wages, taxes, materials, insurance, services and supplies which
will be required during the ensuring fiscal year for the rendering of
all services, together with a reasonable amount considered by the Board
to be necessary for reserves for contingencies and replacements, and
such other expenses as the Board may deem proper, and shall notify each
lot owner in writing as to the amount of such estimated annual budget,
with reasonable itemization thereof. When adopted by the Board of
Directors, the annual budget shall be assessed to the lot owners pro
rata, on a per lot basis, except as other wise provided in the
Declaration. The Board of Directors shall fix the amount of the
annual assessment against each lot at the beginning of each new fiscal
year; each lot owner shall be billed for such annual charges, and such
annual charges shall be payable not later than March 31st of each
year. Written notice of the annual assessment shall be sent to
each owner subject thereto. However the absence of such written
notice does not relieve the Owner of their obligation for the
assessment. As collected, the funds shall be allocated and
segregated into a reserve fund for the replacement of common area
components, and into a working capital fund to cover the anticipated
routine operating expenses of the Association. All assessments
levied by the Board of Directors shall be governed by the provisions of
the Declaration, the Articles of incorporation and the By-Laws of the
Association.
b. The Board shall provide for charges to build up and maintain a
reasonable reserve for contingencies and replacements as may be
required by reasonable business prudence and/or the holders of the
beneficial interest of first deeds of trust or mortgages on the
lots. Extraordinary expenditures not originally included in the
annual budget which may become necessary during the year shall be
charged first against such reserves, if any. If said annual
budget proves inadequate for any reason, including nonpayment of any
owner's assessment, the Board may at any time levy a special
assessment, which shall be assessed to the lot owners on a per lot
basis, provided however, that any such special assessment shall have
the assent of two-thirds (2/3) of the votes of each member who are
voting in person or by proxy at a meeting duly called for the
purpose. The Board shall serve notice of such special assessment
on all lot owners by a statement in writing giving the amount and
reasons therefore, and such special assessment shall become effective
with the first payment which is due more than thirty (30) days after
the delivery or mailing of such notice of special assessment. All
lot owners shall be obligated to pay any special assessments in the
same manner as regular assessments are paid.
c. All such charges shall bear interest at the maximum legal rate of
interest from the due date until paid and, together with such
interests, costs and charges, shall be a lien on the lot assessed,
prior in right to all other liens, charges, assessments and
encumbrances of every nature, except that the lien at the Associations
shall be subordinate to the lien of any first mortgage or first deed of
trust, and to the lien of any governmental entity for taxes due and
unpaid.
d. The Board shall supply to all lot owners an itemized account of the
maintenance expenses for the preceding calendar year actually incurred
and paid, together with a tabulation of the amounts collected pursuant
to the estimates provided and showing the net amount over or short of
the actual expenditures plus reserves.
e. When the first Officer elected hereunder takes office, it shall
determine the estimated budget, as hereinafter defined, for the period
commencing thirty (30) days after said election and for the balance of
the Association's current fiscal year. Charges shall be levied
against the lot owners during the said period as provided in this
Article.
f. The failure or delay of the Officers to prepare or serve the annual
or adjusted budget on the lot owners shall not constitute a waiver or
release in any manner of the lot owner's obligation to pay the
maintenance and other costs and necessary reserves as herein provided,
whenever the same shall be determined, and in the absence of any annual
budget or adjusted budget, the lot owners shall continue to pay the
charges at the then existing annual rate established for the previous
period until the first charge after such new annual or adjusted budget
shall have bee mailed or delivered.
g. Nothing in these By-Laws shall prohibit the return of
previously paid charges pro rata prior to the end of the Association
tax year, or to make any suitable arrangement for the handling of
reserve funds collected so as to avoid unfavorable tax consequences to
the Association and/or its members; provided, however, that any funds
to be returned shall only be done with the consent of the holders of
first mortgages or first deeds of trust covering one hundred percent
(100%) of the lots in the project.
SECTION 2
Maintenance and repairs.
a. Every owner must perform promptly all maintenance and repair
work on his own lot, which if omitted would affect the project in its
entirely or in a part belonging to other owners, and is expressly
responsible for the damages and liabilities that his failure to do so
may engender.
b. An owner shall reimburse the Association for any expenditures
incurred in repairing or replacing any common areas or facilities
damaged through his fault.
SECTION 3
Conduct of Owners. All owners agree to and shall conduct
themselves in accordance with the provisions of these By-Laws, the
Declaration of Conditions, Covenants and Restrictions, and the Articles
of Incorporation of the Association. All owners agree to abide by
and to observe reasonable rules and regulations adopted by the Board of
Directors for the Administration of the project, as hereinafter
provided.
SECTION 4
Rules and Regulations. In order to assure the peaceful and
orderly use and enjoyment of the common areas, and the reasonably
efficient administration of the affairs of the Association, the Board
of Directors may from time to time adopt reasonable rules and
regulations (including the modification and revocation thereof),
establishing procedures for the operation of the Association and
establishing standards and guidelines for the conduct of the members
thereof. Such rules and regulations shall be published and
distributed to the members of the Association, and shall be effective
upon the date set by the Board of Directors following a comment period,
which comment period shall be not less than thirty (30) days, unless an
emergency is declared in the resolution adopting the particular rule or
regulation. When an emergency is declared in the resolution
adopting the particular rule or regulation, the rule or regulations may
be declared effective immediately, but in such event, the Board of
Directors shall allow a period of time for comment or objection by
members of the Association, which period of time shall be not less than
thirty (30) days and the Board of Directors shall consider all comments
and objections received and determine whether such rule or regulation
should be modified, amended or revoked, in whole or in part. All
rules and regulations adopted by the Board of Directors, and every
amendment, modification, and revocation thereof, shall be published and
delivered to each member of the Association, and shall be binding upon
all members of the Association.
SECTION 5
Foreclosure of Lien. The lien of the Association may be enforced
by an action at law against the delinquent member of the Association,
or by foreclosure and sale in the same manner and subject to the same
procedures as applied to the foreclosure of a Deed of Trust, or
mortgage, securing an interest in real property. The remedies of
the Association to enforce its lien shall be cumulative and not
alternative, and no waiver or election of remedies shall arise from the
exercise or failure to exercise any one or more of the Association's
remedies. In any suit to foreclose the lien against any owner of
a lot, the Association, may represent itself through its manager or
Board of Directors in like manner to any mortgagee of real property or
any trustee under a Deed of Trust securing an interest in real
property. The manager or Board of Directors acting on behalf of
the Association shall have the power to bid and acquire such lot at the
foreclosure sale. Suit to recover a money judgment for unpaid
assessments, including all costs and reasonable attorney's fees, shall
be maintainable without foreclosing or waiving the lien securing the
same. Anything in the foregoing or elsewhere to the contrary
notwithstanding, any lien arising in favor of the Association on
account of charges, assessments, costs, and expenses, shall be, and is,
subordinate and inferior to the liens for unpaid sums due on first
Deeds of Trust and first mortgages of record. If a mortgagee of a
recorded mortgage, or a trustee of a recorded Deed of Trust, or other
purchaser of a lot, obtains title to a lot as a result of foreclosure
of the first mortgage or first Deed of Trust, or by deed of assignment
in lieu of foreclosure, such title holder, his successors and assigns
are not liable for the share of the common expenses or assessments
levied by the Associations, and chargeable expenses or assessments
levied by the Association, and chargeable to the lot, which became due
before the title was acquired. This unpaid share of common
expenses and assessments, is a common expense collectable from all of
the lot owners, including the possessor, his successors and assigns.
SECTION 6
Right of Entry.
a. The Association, the manager and any person authorized by the Board
of Directors, may enter any lot when necessary in connection with any
maintenance, landscaping or construction, for which the Board of
Directors is responsible. Such entry shall be made with as little
inconvenience to the owners as practicable and any damage caused
thereby shall be repaired by the Board of Directors out of the common
expense fund.
b. The Association, its agents, employees and contractors, shall
have the right to enter each lot in case of any emergency originating
in or threatening such lot or other lots, and to effect maintenance and
repairs which may be required to protect the lot and structures
thereon, or other lots and structures, from damage or destruction; when
the required maintenance or repairs are attributable to the negligence
or misconduct of the lot owner, or are of the kind that the unit owner
would normally be required to make, but has failed to make, the
Association may charge the lot owner responsible, and such lot owner
shall reimburse the Association for all costs, expenses and damage
incurred; any such charges, cost, expenses, or damage , incurred
on account of, or for the benefit of, an individual lot owner, shall be
a charge against the particular lot and shall be secured by the lien of
the Association against such lot, in the same manner and to the same
extent as are other charges and assessments against such lots. As
used in this paragraph, the term "lot" shall include any and all
buildings thereon and the term "emergency" shall specifically include
any and all servicing or repair to plumbing, heating and electrical
components and facilities.
SECTION 7
Mortgages.
a. Any first mortgagee of a lot may file a copy of its mortgage with
the Board of Directors through the manager or Secretary, who shall
maintain such information in the record of ownership of the
Association. After the filing of the mortgage, the Board of
Directors shall be required to give such mortgagee prompt notice of any
default in the lot mortgagor's obligations, under the By-Laws or
Articles of Incorporation of the Association or otherwise, not
cured within thirty (30) days of the date of default, and the
mortgagee, its option, may pay any delinquent charges, assessments,
costs and expenses.
b. The holders of the first mortgages shall have the right to examine
the books and records of the Owner's Association, and to require the
submission of annual reports and other reasonably pertinent financial
data to it, and such holders shall determine what information is
"reasonably pertinent".
SECTION 8
Accounting for Expenditures. The Board of Directors, and
the manager, shall keep detailed and accurate records in chronological
order of the receipts and expenditures of the Association. All
books and records shall be kept in accordance with good accounting
procedure, and shall be audited at least once a year by an auditor
outside the Association.
SECTION 9
Non-Exemption for Common Expenses. No lot owners may
exempt himself, herself or itself from liability for contributions
towards the pro rata share of the common expenses of common areas and
facilities by waiver or the use or enjoyment of any of the common areas
or facilities, or by abandonment of the lot.
ARTICLE VII
EXECUTION OF INSTRUMENTS
SECTION 1
Instruments Generally. All checks, drafts, notes bonds,
acceptances, contracts, and all other instruments except conveyances,
shall be signed by such person or persons as shall be designated by
resolution of the Board of Directors.
ARTICLE VIII
LIABILITY OF OFFICERS
SECTION 1
Exculpation. No director or officer of the Association shall be
liable for acts or defaults of any other officer or member of the
Association or for any loss sustained by the Association or any other
member thereof, unless the same has resulted from his own willful
misconduct or negligence.
SECTION 2
Indemnification. Every director, and officer of the Association
shall be indemnified against all reasonable costs, expenses, and
liabilities (including counsel fee) actually and necessarily incurred
by or imposed upon him in connection with any claim, action, suite,
proceeding, investigation, or inquiry of whatever nature, in which he
may be involved as a party or otherwise, by reason of his having been
an officer or member of the Board of the Association, whether or not he
continues to be such director, or officer of the Association at the
time of the incurring or imposition of such costs, expenses, or
liabilities, except in relation to matters as to which he shall be
finally adjudged in such action, suit proceeding, investigation or
inquiry to be liable for willful misconduct or gross negligence to the
Association. The foregoing right of indemnification shall be in
addition to and not in limitation of all rights to which such persons
may be entitled as a matter of law and shall inure to the benefit of
the legal representative of such person. The Association shall
provide adequate insurance for such purpose as the Board of Directors
may from time to time determine.
ARTICLE 1X
AMMENDMENT AND INTERPRETATION
SECTION 1
Amendment. These By-Laws may be amended by the Board of Directors
by a majority vote of a quorum of directors at any duly constituted
meeting of the Board of Directors.
SECTION 2
Designation of Registered Agent and Principal Office. The Board
of Directors may when deemed necessary, designate a new registered
agent and/or a new principal office for the Association, by a majority
vote of a quorum of directors at any duly constituted meeting of the
Board of Directors, but without the assent of the members or
mortgagees; provided , however, that the designation of a new
registered agent and/or a new principal office shall be reflected in
the minutes of the Board of Directors meeting at which such action was
taken, and notice of such action shall be promptly given to the
appropriate Office of the Department of Commerce, State of Alaska.
SECTION 3
Conflict. In the event of any conflict between these By-Laws and
the Articles of Incorporation, the Articles shall govern; in the
event of any conflict between the Articles of Incorporation or these
By-Laws and the Declaration, the Declaration shall govern; in the
event of any conflict between any of the foregoing documents and the
provisions of any applicable statue or ordinance, the later shall
govern and apply.