CORPORATE CHARTER
I, DEAN HEALER, the duly elected and qualified Nevada Secretary of State, do hereby certify that TENAYA CREEK HOMEOWNERS ASSOCIATION did on January 18, 2002 file in this office the original Articles of Incorporation; that said Articles are now on file and of record in the office of the Secretary of State of the State of Nevada, and further, that said Articles contain all the provisions required by the law of said State of Nevada.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of State, at my office, in Carson City, Nevada, on January 22, 2002.
ARTICLES OF INCORPORATION
OF
TENAYA CREEK HOMEOWNERS ASSOCIATION
Article II. The Corporation shall be considered a Non Profit corporation, incorporated pursuant to the provisions of Chapter 82.
Article III. The Corporation may engage in any lawful activity, subject to such limitations set forth in the Declaration of Restrictions, Covenants and Conditions for the "Tenaya Creek" Subdivision, filed in the Office of the CountyRecorder, County of - Washoe, State of Nevada and recorded on or about the 31.51 day of March, 1999, as File. No. 2323117, as may be amended from time to time.
Article IV. The initial Resident Agent of the Corporation shall be:
Leo A. Poggione
8060 South Virginia StreetReno, Nevada89511
Article V. The Board of Directors of the Corporation shall consist of at least three, but nor more than five, Directors elected by the Members, and shall include executive board offices of President, Secretary and Treasurer, and the Directors shall have such rights and duties as set forth in the Declaration of Restrictions, Covenants and Conditions for the "Tenaya Creek" Subdivision, filed in the Office of the County Recorder, County of Washoe, State of Nevada and recorded on or about the 3151 day of March, 1999, as File No. 2323117, as may be amended from time to time.
Article VI. The first Board of Directors shall consist of the following persons:
Leo A. Poggione, President
P.O. Box 33301Reno, Nevada89533Larry Lowe, Treasurer
P.O. Box 33301Reno, Nevada89533Kellie Condon, Secretary
P.O. Box 33301Reno, Nevada89533Article VII. The Members of the Corporation shall include all persons owning any of the 110 individual lots in the Tenaya Creek Subdivision, as identified on the map thereof, filed in the Office of the County Recorder; County of Washoe; State of Nevada and recorded on or about the 31st` day of March, 1999, as File No. 2323116, and the Members shall have such rights as set forth in the Declaration of Restrictions, Covenants and Conditions for the "Tenaya Creek" Subdivision, filed in the Office of the County Recorder. County of Washoe, State of Nevada and recorded on or about the 31 S` day of March, 1999, as File No. 2323117, as may be amended from time to time.
Article VII. The name and address of the Incorporator of the Corporation is as follows:
Article IX. The Corporation shall indemnify its Directors and Members to the full extent permitted by law.
IN WITNESS WHEREOF, I have hereunto subscribed my name this, day of January, 2002.
Steven P. Brazelton
1495 Ridgeview Dr., Ste. 220Reno, Nevada89509
BYLAWS
OF
TENAYA CREEK HOMEOWNER'S ASSOCIATION
ARTICLE 1
GENERAL PLAN OF OWNERSHIP
Section L 1. Name. The name of the corporation is TENAYA CREEK HOMEOWNER'S ASSOCIATION, hereinafter referred to as the "Association." The principal office of the Association shall be located in Reno, Nevada, or at such other place in Washoe County, Nevada, as the Board may from time to time fix by majority vote.
Section 1.2. Application. The provisions of these Bylaws are applicable to the Planned community known as the Tenaya Creek Subdivision, located in the City of Reno. County of Washoe, State of Nevada (the "Project"). All present and future Owners and their tenants, future tenants, employees and any other Person who might use the facilities of the Project in any manner are subject to the regulations set forth in these Bylaws and in that certain Amended and Restated Declaration of Covenants. Conditions, Restrictions for the Tenaya Creek Subdivision (the "Declaration") Recorded or to be Recorded in the office of the Washoe County Recorder. The mere acquisition or lease of any Lot in the Project will signify that the acquirer or tenant accepts, ratifies and agrees to comply with these Bylaws.
Section 1.3. Meaning of Terms. Capitalized terms used herein and not otherwise defined herein shall have the same meanings given to them in the Declaration.
ARTICLE II
VOTING BY ASSOCIATION MEMBERSHIP
SectionIL 1. Voting. The classes of voting Memberships and the number of votes (i.e., voting power) held by each Member, and the manner in which voting is accomplished shall be as set forth in the Declaration. Voting membership shall consist of all Members entitled to cast votes.
Section 11.2. Majority of Quorum. Unless otherwise expressly provided in these Bylaws or the Declaration, any action which may be taken by the Voting Membership may be taken by a majority of a Quorum of the Members or, when applicable, the Delegates of the-Association. - Any reference to a specified percentage of votes shall mean votes representing such specified percentage of the total voting power of the Membership.
Section 11.3. Quorum. Except as otherwise provided in these Bylaws, Quorum shall mean (a) the presence at the beginning of any meeting of the Members (whether or not such Members remain present throughout the meeting) of Persons entitled to cast at least twenty percent (20%) of the total votes, and, for so long as the Declarant owns at least seventy-five percent of the Lots in the Subdivision, the presence of Declarant, in person or by proxy or (b) the presence at the beginning of any meeting of the Board of Directors (whether or not such members of the Board of Directors remain present throughout the meeting) of Persons entitled to cast at least fifty percent (50%) of the votes on the Board of Directors.
ARTICLE III
ADMINISTRATION
Section 111.1. Association Responsibilities. In accordance with the provisions of the Declaration, the responsibilities of the Association shall include, without limitation, the responsibility of administering the Association Property, approving the Budget, establishing and collecting all assessments authorized under the Declaration. and arranging for overall architectural control of the Properties.
Section 111.2. Place of Meetings of Association. Meetings of the Association shall be held at the Properties or such other suitable place as close thereto as practicable, as may be designated from time to time by the Board of Directors.
Section 111.3. Meetings of Voting Membership. The first meeting of the Voting Membership of the Association shall be held no later than nine (9) months after the date of commencement of Common Assessments by the Association. Subsequent meetings shall be held every six (6) months ("Semi Annual Meeting") and twelve (12) monthly ("Annual Meeting") from the date of such first meeting. At each Annual Meeting there shall be elected, by ballot of the Voting Membership, a Board of Directors, in accordance with the requirements of Section IV.5 of these Bylaws. The Voting Membership may also transact such other business of the Association as may properly come before them. The Semi-Annual Meetings and Annual Meetings of the Members shall be open to attendance by all Members and, to the extent of the permissible capacity of the meeting room, Mortgagee representatives.
Section 111.4. Special Meetings of Voting Membership. It shall be the duty of the Board of Directors to call a special meeting of the Voting Membership ("Special Meeting") as directed by the President, resolution of a majority of the Board of Directors, or upon a petition signed by Persons representing at least five percent (5%) of the total voting power of the Association. The Special Meeting shall be held not less than thirty-five (35) days nor more than ninety (90) days after adoption of such resolution or receipt of such petition. No business shall be transacted at a Special Meeting- except as stated in - the notice.
Section 111.5. Notice of Meetings of Voting Membership. It shall be the duty of the Secretary to send a notice of each meeting to each Member of record and to each holder, insurer or guarantor of First Mortgages who has filed a written request for notice with the Secretary. The notice shall be sent by first-class mail, postage prepaid, at least ten (10) but not more than sixty (60) days prior to such meeting, and shall state the purpose of the meeting as well as the day, hour and place that the meeting is to be held and the items on the agenda, including, but not limited to, the general nature of any proposed amendment to the Declaration or these Bylaws, any fees or assessments to be imposed or increased by the Association, any budgetary changes and any proposal to remove an officer or member of the Board of Directors. The notice must include notification of the right of a Member to have a copy of the minutes or a summary of the minutes distributed to such Member upon request if such Member pays the Association the cost of making the distribution. The notice may also set forth time limits for speakers and nominating procedures for the meeting. The notice of any meeting at which Directors are to be elected shall include the names of all those who are nominees at the time the notice is given. Such notice shall also be posted in a conspicuous place on the Association Property, and upon posting shall be deemed served upon any Member who has not furnished the Secretary with a current mailing address.
Section 111.6. Adjourned Meeting. If any meeting of the Voting Membership cannot be organized because a Quorum is not present, a majority of the Voting Membership present may adjourn the meeting to a time not less than five (5) days nor more than thirty (30) days from the time the original meeting was called. Such an adjourned meeting may be held without notice thereof as otherwise required by this Article III, provided that notice is given by announcement at the meeting at which such adjournment is taken.
Section 111.7. Order of Business. The order of business at all meetings of the Voting Membership shall be as follows: (a) roll call or registration to determine the voting power represented at the meeting; (b) proof of notice of meeting or waiver of notice; (c) reading of minutes of preceding meeting; (d) reports of officers; (e) reports of committees; (f) election of inspector of election (at meetings where elections take place); (g) election of members of the Board of Directors (at meetings held for such purpose); (h) unfinished business; and (i) new business. Meetings shall be chaired by the most senior officer of the Association present at such meeting. For purposes of this Section 111.7, the order of seniority of officers shall be President, Vice President, Secretary and Treasurer.
Section 111.8. Action Without Meeting. Any action, which may be taken at a meeting of the Voting Membership (except for the election of members of the Board of Directors) may be taken without a meeting if authorized by the written consent of Persons representing at least a majority of the voting power of the Association; provided, however, that if any greater proportion of the voting power of the Association is required by the Declaration, these bylaws or otherwise for such action, then such greater proportion of written consent shall be required.
Section 111.9. Ratification of Action at Meeting. The transactions at any meeting of the Voting Membership, however called and noticed, shall be as valid as though transacted at a meeting duly held after regular call and notice; provided that all Persons entitled to vote at such a meeting consent by either (a) a writing on the records of the meeting or a writing filed with the Secretary; (b) presence at such meeting and oral consent entered in the minutes of such meeting; or (c) taking part in the deliberations at such meeting without objection. At such meeting, any business may be transacted which is neither excepted from the written consent nor objected to for want of notice at the time the business is considered. If any meeting is irregular for want of notice or of consent. provided a Quorum was present at such meeting all Persons having the right to vote at such meeting may sign a writing waiving the defect and ratifying and approving the proceedings of the meeting.
Section IIL 10. Minutes. Presumption of Notice. Minutes or a similar record of the proceedings of meetings of the Voting Membership, when signed by the President or Secretary, shall be presumed to truthfully evidence the matters set forth therein. A recitation in the minutes of any such meeting that notice of the meeting was properly given shall be prima facie evidence that such notice was given. Not more than thirty (30) days after any meeting of the Voting Membership, the Secretary shall cause the minutes or a summary of the minutes to be made available to the Members. A copy of the minutes or summary of the minutes must be provided to any Member who pays the Association the cost of providing the copy to him.
Section 111 .11. Waiver of Notice. Whenever any notice is required to be given under this Article III, a waiver thereof in writing, signed by the Member entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE IV
BOARD OF DIRECTORS
Section IV. 1. Number and Qualification. The property, business and affairs of the Association shall be governed and managed by a Board of Directors. Any individual Owner, an officer, employee, agent or director of a corporate Owner, a member, manager, employee or agent of a limited liability company Owner, a trustee or designated beneficiary of a trust that owns a -Lot, a partner of a partnership that owns a Lot, a fiduciary of an estate that owns a Lot or any officer, employee, agent, designated appointee, member or manager of Declarant may be a member of the Board of Directors. The Board of Directors shall, prior to the first Annual Meeting of the Voting Membership, be composed of three (3) Persons. At any subsequent Annual meeting of the Voting Membership determined by the Board of Directors, the Board may decide to increase the number of Board members to five (5) Persons, and the Board of Directors shall thereafter be composed of five (5) Persons. The authorized number of Directors may be changed by a duly adopted amendment to these Bylaws. Directors shall not receive any salary or compensation for their services as Directors unless such compensation is first approved by the vote or written consent of Persons representing at least a majority of a Quorum of the Association; provided, however, that (a) nothing herein contained shall be construed to preclude any Director from serving the Association in some other capacity and receiving compensation therefore, and (b) any Director may be reimbursed for his actual expenses incurred in the performance of such Director's duties.
Section IV2. Powers and Duties. The Board of Directors has the powers and duties necessary for the administration of the affairs of the Association and may do all such acts and things as are not by law or by these Bylaws directed to be exercised and done exclusively by the Members.
Section IV.3. Special Powers and Duties. Without prejudice to such foregoing general powers and duties and such powers and duties as are set forth in the Declaration, the Board of Directors is vested with the following powers and duties:
(a) The powers and-duty to select, appoint and remove all officers, agents and employees of the Association; to prescribe such powers and duties for them as may be consistent with all applicable laws, with the Articles, the Declaration and these Bylaws; to fix their compensation; and to require from them security for faithful service when deemed advisable by the Board of Directors.
(b) The power and duty to conduct. manage and control the affairs and business of the Association; and to make and enforce such rules and regulations therefore consistent with all applicable laws, with the Articles, the Declaration and these Bylaws, as the Board of Directors may deem necessary or advisable.
(c) The power but not the duty to change the principal office for the transaction of the business of the Association from one location to another within the County of Washoe, as provided in Article I hereof; to designate any place within said County for the holding of any meeting of the Members consistent with the provisions of Article III hereof; and to adopt and use a corporate seal and to alter the form of such seal from time to time, as the Board of Directors, in its sole judgment, may deem best, provided that such seal shall at all times comply with the provisions of law.
(d) With the approval of a majority of a Quorum of the Association, the power but not the duty to borrow money and to incur indebtedness for the purposes of the Association, and subject to the Declaration, to cause to be executed and delivered therefore, in the Association's name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations -or other-evidences of debt and securities therefore.
(e) The power and duty from time to time to fix and levy Common Assessments, Special Assessments and Capital Improvement Assessments upon the Members as provided in the Declaration; and to determine and fix the due date for the payment of such assessments and date upon which the same shall become delinquent.
(f) The power and duty to enforce the provisions of the Declaration. these Bylaws and all other agreements of the Association.
(g) The power and duty to contract and pay for fire, casualty, errors and omissions, blanket liability, workers' compensation, fidelity bonds. malicious mischief, vandalism, and other insurance, insuring the Members, the Association, the Board of Directors and other interested parties, in accordance with the provisions of the Declaration, covering and protecting against such damages or injuries as the Board of Directors deems advisable (which may include without limitation, medical expenses of persons injured on the Association Property). The Board of Directors shall review, not less frequently than annually, all insurance policies and bonds obtained on behalf of the Association by the Board of Directors or by agents of the Association.
(h) The power and duty to contract for and pay for maintenance. management, gardening, utilities, materials and supplies. and services relating to the Association Property and to employ personnel necessary for the operation and maintenance of the Association Property, including, without limitation, legal and accounting services, and to contract for and pay for the construction, maintenance, repair, reconstruction, replacement and demolition of the Association Property.
(i) Subject to the Declaration, the power but not the duty to delegate its powers according to law and these Bylaws.
(j) Subject to the Declaration, the power but not the duty to grant easements, licenses, permits or rights-of-way where necessary for utilities. sewer facilities and other public purposes over the Association Property.
(k) The power and duty to adopt such Rules and Regulations as the Board may deem necessary for the management of the Project, which Rules and Regulations shall become effective and binding after (i) they are adopted by a majority of the Board at a duly called meeting, and (ii) they are posted in a conspicuous place on the Association Property. Such Rules and Regulations may concern, without limitation, use of the Association Property; signs, parking restrictions, minimum standards of property maintenance consistent with the Declaration and the procedures of the Architectural Committee; and any other matter within the jurisdiction of the Association as provided in the Declaration; provided, however, that such Rules and Regulations shall be enforceable only to the extent that they are consistent with-the -Declaration the Articles and these Bylaws.
(1) The power and duty to keep or cause to be kept, a complete record of all acts and corporate affairs of the Association and to present a statement thereof to the Voting Membership at the Annual Meeting and at any other time that such statement is requested by at least ten percent (10%) of the voting power of the Association.
(m) Subject to the Declaration, the power but not the duty to sell all or any portion of the Association Property.
(n) Provided, however, the Board of Directors shall not have the power to (i) amend the Declaration, (ii) terminate the Project as a common-interest community (as defined in the Act) or (iii) elect members of the Board of Directors or determine their qualifications, powers, duties or terms of office, but the Board of Directors may fill vacancies in its membership for the unexpired portion of any term.
Section IV.4. Management Agent. Subject to the Declaration, the Board of Directors may engage, at a compensation established by the Board of Directors, a Manager for the Association, whose duty it shall be to perform such duties and services as the Board shall authorize, including, but not limited to, the duties listed in Section IV.3 hereof.
Section IV.S. Election and Term of Office. At the first Annual Meeting of the Voting Membership, and thereafter at each Annual Meeting, or any Special Meeting at which Directors are to be elected, new Directors shall be elected in accordance with the following procedure: Declaration: each Member shall cast, for the Director(s) of his choice, the number of votes to which he is entitled, pursuant to the Declaration. If an Annual Meeting is not held, or the Board of Directors is not elected thereat, the Board of Directors may be elected at any Special meeting held for that purpose. Each Director shall hold office until his successor has been elected or until his death, resignation, removal or a judicial adjudication of mental incompetence. The term of office of the three (3) Directors receiving the highest number of votes at the first Annual Meeting shall be two (2) years, and the term of office of the two (2) Directors receiving the next highest number of votes at the first Annual Meeting shall be one (1) year. At each Annual Meeting thereafter, new Directors shall be elected to fill vacancies created by the death, resignation, removal, judicial adjudication of incompetence or expiration of the terms of past Directors. The term of office shall be two (2) years for each Director elected to fill a vacancy created by the expiration of the term of office of the respective past Director. The term of office of each Director elected or appointed to fill a -vacancy created by the resignation, death or removal of his predecessor shall be the balance of the unserved term of his predecessor. Any Person serving as a Director may be reelected, and there shall be no limitation on the number of terms which he may serve. Cumulative voting shall be used in each election of Directors. If a Member cumulates his votes, such Member may give any one (1) candidate, or divide among any number of candidates, a number of votes equal to such member's total share of the voting power multiplied by the number of Directors to be elected. Notwithstanding anything in this Section IV.5 to the contrary, the voting procedures, including without limitation, those with respect to cumulative voting, specified in the Declaration shall prevail and control regarding the right of the Declarant to elect all or a majority of the Board of Directors.
Section IV.6. Books and Audit.
(a) The Board of Directors shall cause to be maintained, in a manner consistent with generally accepted accounting principles, a full set of books and records showing the financial condition of the affairs of the Association sufficiently detailed to enable the Association to comply with applicable law. Within thirty (30) days after adoption of any Budget, the Board of Directors shall provide a summary of such Budget to all Members and shall set a date for a meeting of the Members to consider ratification of the Budget not less than fourteen (14) nor more than thirty (30) days after a mailing of such summary, as more fully set forth in the Declaration. The Board of Directors shall cause to be kept and make available to the Members a ledger of Members revised annually, containing the names, alphabetically arranged, showing their places of Residence and the class of membership held by each.
(b) All books, records and papers of the Association shall be made available for inspection, examination, photocopying and audit by any Member, prospective purchaser, First Mortgagee and any insurer or guarantor of any First Mortgage, or their duly appointed representative, at such Member's sole cost and expense, and at any reasonable time and for a purpose reasonably calculated to be in his interest as a Member (but excluding any commercial or other purpose not related to his interest as a Member), at the office of the Association or at such other place within the Project as the Board of Directors may prescribe. The Board of Directors shall establish reasonable rules with respect to (i) notice to be given to the custodian of the records by the Member desiring to make the inspection, (ii) hours and days of the week when such inspection may be made, (iii) payment of the cost of reproducing copies of documents requested by a Member and (iv) the reasonable costs incurred by the Association in connection therewith. Every Director shall have the absolute right at any reasonable time to inspect all books, records and documents of the Association, and the physical properties owned or controlled by the Association.
Section IV. 7. Vacancies. Vacancies in the Board of Directors caused by any reason may be filled for the unexpired portion of any term by a majority of the remaining Directors, though less than a Quorum. Any vacancy not filled by the Directors may be filled by a vote of the Voting Membership at the next Annual Meeting, Semi-Annual Meeting or at a Special Meeting called for such purpose.
Section IV.8. Removal of Directors. Other than a Director appointed by Declarant, any Director may be removed from office by the vote-or written-consent of at least two-thirds (2/3) of all Persons present and entitled to vote at any meeting of Members at which a Quorum is present.
Section IV.9. Organizational Meeting of Board. The first regular meeting ("Organizational Meeting") of a newly constituted Board of Directors shall be held within ten (10) days of election of any new Director(s), at such place as shall be fixed and announced by the Directors at the meeting at which such Director(s) is elected, for the purpose of organization, election of officers and the transaction of other business. No notice shall be necessary to the newly elected Director(s) in order to legally constitute such meeting; provided that (a) a majority of the entire Board shall be present when the time and place are announced at an Annual Meeting and (b) the meeting is held on the same day and at the same place as the Annual Meeting at which the newly constituted Board was elected.
Section IV. 10. Regular Meetings of Board. Regular meetings of the Board of Directors shall be open to all of the Voting Membership: provided that Members who are not Directors may not participate in any deliberations or discussions at such regular meetings unless expressly so authorized by a vote of a majority of a Quorum of the Board of Directors. Regular meetings may be held at such time and place within the Project as shall be determined, from time to time, by a resolution adopted by a majority of a Quorum of the Board of Directors. Notice of the time and place of regular meetings of the Board of Directors shall be given to each Director, personally or by mail, telephone, facsimile or telegraph at least twelve (12) hours prior to the date named for such meeting. Members who are not Directors need not be given notice of the regular or special meetings of the Board of Directors, but upon request by any Member, such Member shall be informed as to the time, place and purpose of any such meeting.
Section IV. 11. Special Meeting of Board. Special meetings of the Board of Directors shall be open to all Members; provided that Members who are not Directors may not participate in any deliberations or discussions at such Special Meetings, unless expressly so authorized by a vote of a majority of a Quorum of the Board of Directors. Special Meetings may be called by the President (or, if he is absent or refuses to act, by the Vice President) or by any two (2) Directors. At least twelve (12) hours' notice shall be given to each Director, personally or by mail, telephone or telegraph, which notice shall state the time, place (as here in above provided) and the purpose of the meeting. If served by mail, each such notice shall be sent, postage prepaid, to the address reflected on the records of the Association, and shall be deemed given. if not actually received earlier, at 5:00 o'clock p.m. on the second day after it is deposited therein. Whenever any Director has been absent from any Special Meeting of the Board, an entry in the minutes to the effect that notice has been duly given shall be conclusive and incontrovertible evidence that due notice of such meeting was given to such Director, as required by law - and as provided herein.
Section IV. 12. Ratification of Actions at Meeting. The transactions at any -meeting of Board of Directors, either regular or Special Meetings, however called and noticed, shall be as valid as though transacted at a meeting duly held after regular call and notice if all Directors entitled to vote at any meeting consent to the transaction at the meeting either by (a) a writing on the records of the meeting or a writing filed with the Secretary of the Association; (b) presence at such meeting and oral consent entered in the minutes of such meeting; or (c) taking part in the deliberations at such meeting without objection. At such meeting any business may be transacted which is neither objected to for want of notice at the time the business is considered nor excepted from the written consent. Furthermore, if any meeting is irregular for want of notice or consent, but a Quorum was present at such meeting and all of the Directors having the right to vote at such meeting signed a writing waiving the defect and ratifying and approving the proceedings of the meeting, then such proceedings shall be held as valid as though transacted at a meeting duly held with proper notice and consent. Consent or approval of the Directors may be by written proxy or by written power of attorney.
Section IV-13. Quorum and Adjournment. Except as otherwise expressly provided herein, at all meetings of the Board of Directors, a majority of the Directors shall constitute a Quorum for the transaction of business, and the act of the majority of the Directors present at a meeting at which a Quorum is present shall be the act of the Board of Directors. If at any meeting of the Board of Directors, there is less than a Quorum present, the majority of those present may adjourn the meeting from time to time. At any such reconvened meeting, provided a Quorum is present, any business which might have been transacted at the meeting as originally called may be transacted without further notice. The Board of Directors may, with the approval of a majority of a Quorum of the Board of Directors, adjourn a meeting and reconvene in executive session without presence of Members who are not Directors, to discuss and vote upon personnel matters, litigation in which the Association is or may become involved and orders of business of a similar nature. The nature of any and all business to be considered in executive session shall first be announced in open session.
Section IV. 14. Committees. The Board of Directors, by resolution from time to time, may designate such advisory and other committees as it shall desire, and may establish the purposes of and powers of each such committee created. The resolution designating and establishing the committee shall provide for the appointment of its members, as well as a Chairman, shall state the purposes of the committee, and shall provide for reports, termination and other administrative matters as deemed appropriate by the Board of Directors. Each committee must have at least one member of the Board of Directors. No committee may act in violation of Section 82.206 of the NRS. Unless required by applicable law, the provisions of this Section IV. 14 shall not apply to the Architectural Committee created pursuant to the Declaration.
Section IV. 1 5. Waiver of Notice. Whenever any notice is required to be given under this Article IV, a waiver thereof in writing, signed by the Director entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE V OFFICERS
Section V.1. Designation. The principal officers of the Association shall be a President, a Secretary and a Treasurer, all of whom shall be elected by the Board of Directors. The Board of Directors may also appoint a Vice President, Assistant Treasurer, an Assistant Secretary and such other officers as in their judgment may be necessary. Officers other than the President need not be Directors. One person may hold more than one office.
Section V.2. Election of Officers. Prior to the termination of Declarant's control upon the sale of seventy five percent of the Lots in the Subdivision, as set forth in the Declaration (the "Control Termination Date"), Declarant shall be solely entitled to appoint the-officers of the Association and-subsequent to -that Control Termination Date, the officers of the Association shall be elected annually by the Board of Directors at the Organization Meeting of each new Board of Directors, and each officer shall hold his office until he shall resign at the pleasure of the Board of Directors, or until he shall be removed or otherwise disqualified to serve or his successor shall be elected and qualified to serve.
Section V.3. Removal of Officers. Prior to the Control Termination Date, Declarant shall be solely entitled to remove the officer of the Association and subsequent to the Control Termination Date, an officer may be removed either with or without cause upon an affirmative vote of a majority of the entire Board of Directors and his successor elected at any regular meeting of the Board of Directors, or at any Special Meeting of the Board of Directors called for such purpose. Any officer may resign at any time by giving written notice to the Board or to the President or Secretary of the Association. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified in said notice, acceptance of such resignation by the Board of Directors shall not be necessary to make it effective.
Section V.4. Compensation. Officers, agents and employees shall receive such reasonable compensation for their services as may be authorized or ratified by the Board of Directors; provided, however, that no officer shall receive any compensation for services performed in the conduct of the Association's business unless such compensation is approved by the vote or written consent of at least a majority of a Quorum of the Association; and provided further that (a) nothing herein contained shall be construed to preclude any officer from serving the Association in some other capacity and receiving compensation therefore, and (b) any officer may be reimbursed for actual expenses incurred in the performance of his duties for the Association. Appointment of any officer, agent or employee shall not of itself create contractual rights of compensation for services performed by such officer, agent or employee.
Section V.5. President. The President shall be the chief executive officer of the Association, and subject to the control of the Board of Directors, the President shall have
the general supervision, direction and control of the business of the Association. The President shall preside at all meetings of the Association and of the Board of Directors and shall have all of the general powers and duties which are usually vested in the office of the President of a corporation, including but not limited to the power, subject to the provisions of Section IV.14, to appoint committees from among the Members from time to time as he may in his discretion decide is appropriate to assist in the conduct of the affairs of the Association. The President shall be ex officio a member of all standing committees (other than the Architectural Committee), and he shall have such other powers and duties as may be prescribed by the Board of Directors or these Bylaws. The President shall sign all leases, mortgages, deeds and other instruments, and shall co-sign all checks and promissory notes, unless persons other than the President are authorized to do so in accordance with Section XI. I hereof. The President shall have the power to prepare, execute, certify and Record amendments, if any, to the Declaration on behalf of the Association, subject to the provisions of the Declaration.
Section V.6. Vice President. The Vice President shall take the place of the President and perform his duties whenever the President shall be absent or disabled or refuses or is unable to act. If neither the President nor the Vice President is able to act, the Board of Directors shall appoint some other member of the Board of Directors to do so on an interim basis. The Vice President shall also perform such other duties as shall from time to time be imposed upon him by the President, the Board of Directors or these Bylaws.
Section V.7. Secretary. The Secretary shall, in general, perform all of the duties incident to the office of Secretary. Without limiting the generality of the foregoing, the Secretary (a) shall keep minutes of all meetings of the Board of Directors and all meetings of the Association, which minutes shall be kept at the principal office of the Association or at such other place as the Board of Directors may order, (b) shall keep the seal of the Association in safe custody, (c) shall have charge of such books and papers as the Board of Directors may direct, (d) shall give, or cause to be given, notices of meetings of the Association and of the Board of Directors required by these Bylaws or by law to be given and (e) shall perform such other duties as may be prescribed by the President or the Board of Directors.
Section V.8. Treasurer. The Treasurer shall be the chief financial officer of the Association and shall have responsibility for Association funds and securities and shall be responsible for keeping, or causing to be kept, full and accurate accounts, tax records and business transactions of the Association, including accounts of all assets, liabilities, receipts and disbursements in books belonging to the Association. The Treasurer shall be responsible for the deposit of all monies and other valuable effects in the name, and to the credit, of the Association in such depositories as may from time to time be designated by the Board of Directors. The Treasurer shall disburse the funds of the Association as may be ordered by the Board of Directors, in accordance with the Declaration, shall render to the President and the Board of Directors, upon request, an account of all of his transactions as Treasurer and of the financial conditions of the Association, and shall have such other powers and perform such other duties as may be prescribed by the President, the Board of Directors or these Bylaws. The Treasurer shall sign all checks
and promissory notes unless persons other than the Treasurer are authorized to do so in accordance with Section XI. I hereof.
ARTICLE VI OBLIGATIONS OF MEMBERS
Section VL1. Assessments.
(a) All Members are obligated to pay, in accordance with the provisions of the Declaration, all assessments imposed by the Association.
(b) All delinquent assessments shall be enforced, collected or foreclosed in the manner provided in the Declaration.
Section VI.2. Maintenance and Repair.
(a) Every Member must perform promptly, at his sole cost and expense, such maintenance and repair work on his Lot as is required under the provisions of the Declaration.
(b) As further provided in the Declaration, each Member shall reimburse the Association for any expenditures incurred in repairing or replacing any portion of the Association Property which is damaged through the fault of such Member or otherwise in enforcing the terms of the Declaration as against such Member, after Notice and Hearing. Such expenditures shall include all court costs and reasonable attorneys' fees incurred in enforcing any provision of these Bylaws or the Declaration.
ARTICLE VII
AMENDMENTS TO BYLAWS
These Bylaws may be amended only by the vote of at least fifty-one percent (51 %) of the voting power of the Association; provided that these Bylaws may be amended by a majority of the entire Board of Directors, at any time prior to the Close of Escrow for the sale of the first Lot to a purchaser from Declarant. In the event Declarant obtains VA or FHA approval of the Subdivision, for so long as Declarant has effective control of the Association, any amendment to these Bylaws shall also require the prior written approval of the VA and FHA, as applicable. Finally, the prior written approval of holders and insurers of fifty-one percent (51 %) of all First Mortgages on Lots in the Subdivision must be secured before any material amendment to these Bylaws is made affecting matters requiring such approval in the Declaration. Notwithstanding the foregoing, (i) if a holder or insurer of a First Mortgage or other Mortgage receives a written request from the Association to approve a proposed amendment or amendments to these Bylaws and does not deliver a negative response to the Association within thirty (30) days of the mailing of such request by the Association, such holder or insurer of a First Mortgage shall be deemed to have approved the proposed amendment or amendments and (ii) such approval only shall be required if such holder or insurer of a First Mortgage shall deliver to the Association written request for notice of amendments to these Bylaws.
ARTICLE VIII MORTGAGEES
Section VIII. 1. Notice to Association. Upon request, a Member who consents to a Mortgage on his Lot shall notify the Association through the Manager or through the Secretary if there is no Manager, of the name and address of his Mortgagee, and the Association shall maintain such information in a book entitled "Mortgagees." Upon request, any such Member shall likewise notify the Association as to the release or discharge of any such Mortgage.
Section VIII. Notice of Unpaid Assessments. The Board of Directors shall at the written request and upon payment of a reasonable fee furnish to a Mortgagee of a Lot a report setting forth any unpaid Assessments due from the Owner of such Lot, in accordance with the provisions of the Declaration.
ARTICLE IX
CONFLICTING PROVISIONS
In case any provision of these Bylaws conflicts with any provision of the laws of the State of Nevada, such conflicting provisions of the Bylaws shall be null and void, but all other provisions of these Bylaws shall remain in full force and effect. In case of any conflict between the Articles and these Bylaws, the Articles shall control, and in the case of any conflict between the Declaration and these Bylaws, the Declaration shall control.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Board of Directors may authorize the Association to pay expenses incurred by, or to satisfy a judgment or fine levied against, any present or former Director, member of the Architectural Committee, officer, employee or agent of the Association to the extent and under the circumstances provided in the Declaration.
ARTICLE XI
MISCELLANEOUS
Section XI. I. Execution of Documents. The Board of Directors may authorize any officer or agent to enter into any contract or execute any instrument in the name and on behalf of the Association, and such authority may be general or confined to specific instances. Unless so authorized by the Board of Directors, no officer, agent, committee member or employee shall have any power or authority to bind the Association by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount.
Section XI.2. Inspection of Articles and Bylaws. The Board of Directors shall keep at the principal place of business for this Association the original or a copy of the Articles and these Bylaws as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by all Members, prospective purchasers, First Mortgagees and insurers and guarantors of First Mortgages, or their duly appointed representative, in accordance with Section IV.6 hereof.
Section XI.3. Assessment Year. The Assessment Year of the Association shall be determined by the Board of Directors and shall be subject to change from time to time as the Board of Directors shall determine.
Section XI.4. Membership Book. The Board of Directors shall keep and maintain at the principal office of business for the Association, a book containing the name and address of each Member. Termination or transfer of Membership shall be recorded in the book, together with the date on which such ownership was transferred.
ARTICLE XII
NOTICE AND HEARING PROCEDURE
Section XII. 1. Suspension of Privileges. In the event of an alleged violation of these Bylaws, or the Restrictions, and after written notice of such alleged failure is delivered (in the manner prescribed in the Declaration) to the Member or any agent of the Member ("respondent") alleged to be in default, the Board of Directors shall have the right, after affording the respondent an opportunity for an appropriate hearing as hereinafter provided, and upon an affirmative vote of a majority of a Quorum of the Board of Directors to take any one or more of the following actions ("Sanctions"): (a) levy a Special Assessment as provided in the Declaration; (b) suspend or condition the right of said Member to use any facilities owned, operated or maintained by the Association, as provided in the Declaration; (c) suspend said Member's voting privileges as a Member, (d) enter upon such Member's Lot to make necessary repairs or to perform maintenance which, according to the Declaration; is the responsibility of the Owner thereof; or (e) Record a notice of noncompliance encumbering the Lo of the respondent. Any suspension in accordance with division (b) or (c) above shall be for a period of not more than sixty (60) days for any noncontinuing infraction, but in the case of a continuing infraction (including nonpayment of any assessment after it becomes delinquent) may be imposed for so long as the violation continues. The failure of the Board of Directors to enforce these Bylaws or the Restrictions shall not constitute a waiver of the right to enforce the same thereafter. The remedies set forth above and otherwise provided by these Bylaws or the Restrictions shall be cumulative and none shall be exclusive. Any individual Member, however, must exhaust all available internal remedies of the Association prescribed by these Bylaws, the Restrictions and NRS 38.300, if applicable, before that Member may resort to a court of law for relief with respect to any alleged violation of these Bylaws or the Restrictions. If the Association adopts a policy imposing Special Assessments on Members for violation of these Bylaws or the Restrictions, the Secretary shall prepare and cause to be hand-delivered or sent prepaid by United States mail to the mailing address of each Member or to any other mailing address designated in writing by the Member, a schedule of Special Assessments that may be imposed for such violations.
Section XII. 2. Written Complaint. A hearing to determine whether a right or privilege of the respondent under these Bylaws or the Declaration should be suspended or conditioned, or whether a Special Assessment should be levied, shall be initiated by the filing by any Member or by any officer or member of the Board of Directors of a written complaint ("Complaint") with the President of the Association or other presiding member of the Board of Directors.--The Complaint-shall constitute a written statement of charges which shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged. and a reference to the specific provisions of these Bylaws or the Restrictions which the respondent is alleged to have violated. A copy of the Complaint shall be delivered to the respondent in accordance with the notice procedure set forth in the Declaration, together with a statement which shall be substantially in the following form:
Unless a written request for a hearing signed by or on behalf of the Person named as respondent in the accompanying Complaint is delivered or mailed to the Board of Directors within fifteen (15) days after the date of this notice, the Board of Directors may proceed upon the Compliant without a hearing, and you will have thus waived your right to a hearing. The request for a hearing may be made by delivering or mailing the enclosed form entitled "Notice of Defense" to the Board of Directors at the following address:
You may, but need not, be represented by counsel at any or all stages of these proceedings. If you desire the names and addresses of witnesses or an opportunity to inspect any relevant writings or items on file in connection with this matter in the possession, custody or control of the Board of Directors, you may contact
The Notice of Defense shall be in the form proposed by the Board of Directors. The respondent shall be entitled to a hearing on the merits of the matter if the Notice of Defense is timely filed with the Board of Directors.- The respondent may file a separate statement by way of mitigation, even if he does not file a Notice of Defense.
Section XII. 3. Notice of Hearing. If the Notice of Defense is timely filed and a hearing is requested by the respondent, the Board shall serve a notice of hearing, as provided herein, on all parties at least ten ( 10) days prior to the hearing. The hearing shall be held no sooner than thirty (30) days after the Complaint is mailed or delivered to the respondent as provided in Section XIL2. The notice to the respondent ("Notice of Hearing") shall be substantially in the following form but may include other information:
You are hereby notified that a hearing will be held before the Board of Directors of the Tenaya Creek Homeowner’s Association at on the day of at the hour of
upon the charges made in the Complaint served upon you. You may be present at the hearing, and you may but need not be represented by counsel. You may present any relevant evidence at the hearing and will be given full opportunity to cross-examine all witnesses testifying against you. You are entitled to request the attendance of witnesses and the production of books, documents or other items by applying to the Board of Directors of the Association.
Section XII. 4. Hearing. If the Notice of Defense is timely filed, the hearing shall be held before the Board of Directors, or by a forum of Members appointed by the Board of Directors, in executive session on the date specified in the Notice of Hearing delivered to the respondent and Sanctions, if any, shall be imposed at the hearing or at such later date, time and place provided the respondent has notice of the same and may be present. If the Notice of Defense is not timely filed, the respondent's right to a hearing shall be deemed waived and the Board of Directors, in executive session, may proceed upon the Complaint without a hearing; provided, however, that prior to the effectiveness of any Sanction, proof of notice and invitation to be heard shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if a copy of the notice together with a statement of the date and manner of delivery is entered by the Person who mailed or delivered such notice. All notice requirements shall be deemed satisfied if the respondent appears at the hearing. The minutes of the hearing or meeting, as applicable, shall contain a written statement of the results and the Sanctions, if any, imposed.
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify that:
1. I am the duly elected and acting Secretary of I TENAYA CREEK HOMEOWNER'S ASSOCIATION, a Nevada non-profit corporation ("Association"); and
2. The foregoing Bylaws, comprising of 18 pages including this page, constitute the Bylaws of the Association duly adopted at a Special Meeting of the Board of Directors of the Association held on February 5, 2002.
IN WITNESS WHEREOF; 1-have hereunto subscribed-my-hand and affixed the seal of the Association this 5h day of February, 2002.
AMENDED AND RESTATED DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR THE
TENAYA CREEK SUBDIVISION
Whereas, S&S Developers, LLC (hereinafter defined as "Declarant") did record with the Washoe County Recorder's Office that certain "DECLARATION OF RESTRICTIONS, COVENANTS, AND CONDITIONS FOR THE "TENAYA CREEK" SUBDIVISION on or about March 31, 1999 as File No. 2323117 with the Washoe County Recorder's Office, affecting the properties commonly known as the Tenaya Creek Subdivision in the County of Washoe, State of Nevada, and more particularly - described as follows:
Each of the 110 Lots shown in Phases A through D, Association Property parcels shown as Parcels 1 through 4, and those certain streets designated as "TENAYA CREEK LANE, MT. DANA DRIVE, TUOLOUMNE LANE, TUOLOUMNE COURT, BUD LAKE LANE, and DIAMOND "0" DRIVE, inclusive, of TENAYA CREEK SUBDIVISION, according to the map thereof, filed in the Office of the County Recorder, County of Washoe, State of Nevada and recorded on the 31St day of March, 1999, as File No. 2323116;
Whereas, the Tenaya Creek Subdivision is a Planned Community, pursuant to NRS Chapter 116.
Whereas, more than 75% of the Association Members have voted to amend and restate the Tenaya Creek CC&Rs.
Whereas, the Declarant has consented to the recordation of this amended and restated Declaration.
Whereas, Declarant has deemed it desirable, for the efficient preservation of the values and amenities in the Tenaya Creek Subdivision to create a corporation under the laws of the State of Nevada to which shall be delegated and assigned the powers of (1) owning, maintaining and administering the Association Property (as hereinafter defined) for the private use of its Members, authorized guests, and general public as authorized hereunder, (2) administering and enforcing the Restrictions (as defined herein), and (3) collecting and disbursing the assessments and charges hereinafter created.
Whereas, Declarant will cause or has caused such corporation, the Members of which shall be the respective Owners of Lots in the Tenaya Creek Subdivision, to be formed for the purpose of exercising such functions.
Whereas, Declarant intends to establish a residential community and to develop and convey all of the Properties pursuant to a general plan for the maintenance, care, use and management of the Properties, and subject to certain protective covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and charges, all running with the Properties as hereinafter set forth.
Whereas, this Declaration is designed to create equitable servitudes and covenants appurtenant to and running with all of the Properties.
Whereas, if developed as planned, the Properties will ultimately contain single-family residential dwelling units, but there is no guarantee that the Properties will ultimately be developed as presently planned.
Now, therefore, Declarant hereby declares that all of the Properties shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the following easements, restrictions, covenants, conditions and equitable servitudes, all of which are for the purpose of uniformly enhancing and protecting the value, attractiveness and desirability of the Properties, in furtherance of a general plan for the protection, maintenance, subdivision; improvement, sale and lease of the Properties, or any portion thereof. The covenants, conditions, restrictions, reservations, easements, and equitable servitudes set forth herein shall run with the Properties and shall be binding upon all persons having any right, title or interest in the Properties, or any part thereof, their heirs, successive Owners and assigns; shall inure to the benefit of every portion of the Properties and any interest therein; and shall inure to the benefit of and be binding upon Declarant, its successive owners and each Owner and his or her respective successors-in-interest, and may be enforced by any Owner or by the Association, and that the following conditions, restrictions and covenants shall supersede and replace in their entirety the previously recorded declaration referenced above.
ARTICLE I
DEFINITIONS
Unless otherwise expressly provided, the following words and phrases when used in this. Declaration, whether used in the Preamble above or hereinafter, shall have the meanings hereinafter specified.
1.1 "Architectural Committee " shall mean the architectural and landscaping committee created pursuant to this Declaration.
1.2 "Architectural Committee Rules " shall mean the rules adopted by the Architectural Committee pursuant to this-Declaration.
1.3 "Articles " shall mean the Articles of Incorporation of the Association as filed or to be filed in the Office of the Secretary of State of the State of Nevada.
1.4 "Assessment, Capital Improvement "shall mean a charge against each Owner and his Lot , representing a portion of the costs. to the Association for installation or construction of any Improvements on any portion of the Association Property which the Association may from time to time authorize, pursuant to the provisions of this Declaration.
1.5 "Assessment, Common " shall mean the annual charge against each Owner and his Lot, representing a portion of the total costs of maintaining, improving, repairing, replacing, managing and operating the Association Property, which are to be paid by each Owner to the Association, as provided herein.
1.6 "Assessment. Reconstruction " shall mean a charge against each Owner and his Lot, representing a portion of the cost to the Association for reconstruction of any portion of the Improvements on the Association Property, pursuant to the provisions of this Declaration.
1.7 "Assessment, Special " shall mean a charge against a particular Owner and his Lot, directly attributable to or reimbursable by the Owner, equal to the cost incurred by the Association for corrective action performed pursuant to the provisions of this Declaration, or levied by the Board as a reasonable fine or penalty for noncompliance with the Restrictions, plus interest and other charges on such Special Assessment as provided for in this Declaration.
1.8 "Association" shall mean the Tenaya Creek Homeowners Association, a non profit Nevada corporation created for the purposes described in this Declaration.
1.9 "Association Property " shall mean all the real and personal property and Improvements, including certain landscaping areas in the Properties, which are owned in fee simple at any time by the Association, or over which the Association has an easement or license for the use, care or maintenance thereof. "Association Property" shall also include (i) the entry monumentation for the Properties, if any, and (ii) the sidewalks and landscaping along the private streets in the Properties. The Association Property shall include the property shown as "Open Space" shown as parcels I through 4 on Exhibit "A's hereto, to the extent not dedicated to the City of Reno or other entity, and the "Subdivision Streets" shown as "TENAYA CREEK LANE,-MT.-DANA DRIVE, TUOLOUMNE LANE, TUOLOUMNE COURT, BUD LAKE LANE, and DIAMOND "0" DRIVE, on Exhibit "A" hereto.
1.10 "Beneficiary " shall mean a mortgagee under a mortgage or a beneficiary under a deed of trust, as the case may be, and the assignees of such mortgagee or
beneficiary.
1.11 "Board " shall mean the Board of Directors of the Association, elected in accordance with the Bylaws of the Association and this Declaration.
1.-12 "Bylaws "shall mean the Bylaws of the Association which have or will be adopted by the Board initially, as such Bylaws may be amended from time to time.
1.13 "Close of Escrow " shall mean the date on which a deed or other such instrument conveying a Lot in the Properties is Recorded.
1.14 "Common Expenses " shall mean the actual and estimated costs of: maintenance, management, operation, repair and replacement of the Association Property (including unpaid Special Assessments, Reconstruction Assessments and Capital Improvement Assessments), including those costs not paid by the Owner responsible for payment; costs of management and administration of the Association including, but not limited to, compensation paid by the Association to managers, accountants, attorneys and other employees; the costs of all utilities, gardening, and other services benefiting the Association Property; the costs of fire, casualty and liability insurance, worker's compensation insurance, and other insurance covering the Association Property; the costs of bonding the members of the management body; taxes paid by the Association; amounts paid by the Association for discharge of any lien or encumbrance levied against the Association Property, or portions thereof, including, without limitation, real property taxes, if any, levied against the Association Property; all prudent reserves; and the costs of any other item or items designated by the Association for any reason whatsoever in connection with the Association Property, for the benefit of the Owners.
1.15 "Declarant " shall mean S&S Developers, LLC, its successors, and any other Person to which it shall have assigned any rights hereunder by an express written assignment. Any such assignment may include only specific rights of the Declarant hereunder and may be subject to such conditions and limitations as S&S Developers, LLC may impose in its sole and absolute discretion.
1.16 "Family " shall mean (1) a group of natural Persons related to each other by blood or legally related to each other by marriage or adoption, or (2) a group of natural Persons not all so related who maintain a common household in a Residence on a Lot.
1.17 "Improvement " shall mean all structures and appurtenances thereto of every type and kind, including but not limited to dwelling units, buildings, outbuildings, walkways, sprinkler pipes, garages swimming pools, Jacuzzi spa's and other_ recreational facilities, carports, roads, driveways, the paint on all exterior surfaces, parking areas, fences, screening walls, retaining walls, stairs, decks, landscaping, hedges, windbreaks, plantings, planted trees and shrubs, poles, signs, exterior air conditioning and water softener fixtures or equipment.
1. 18 "Lot " shall mean any lot or parcel of land shown upon any Recorded Subdivision map or Recorded parcel map of the Properties, together with the Improvements, if any, thereon, but excepting the Association Property.
1.19 "Maintenance Funds " shall mean the accounts created for receipts and disbursements of the Association pursuant to this Declaration.
1.20 "Manager " shall mean the Person, firm or agent, whether an employee or independent contractor, employed by the Association pursuant to the Bylaws, and delegated the duties, power or functions of the Association as limited by the Restrictions.
1.21 "Member " shall mean every Person holding a membership in the Association, pursuant to this Declaration.
1.22 "Mortgage " shall mean any mortgage or deed of trust or other conveyance of a Lot, Condominium or other portion of the Properties to secure the performance of an obligation, which conveyance will be reconveyed upon the completion of such performance. The term "Deed of Trust" or "Trust Deed" when used shall be synonymous with the term "Mortgage."
1.23 "Mortgagee " shall mean a person or entity to whom a Mortgage is made and shall include the beneficiary of a Deed of Trust; "Mortgagor" shall mean a Person who mortgages his or its property to another i.e., the maker of a Mortgage), and shall include the Trustor of a Deed of Trust. The term "Trustor" shall be synonymous with the term "Mortgagor," and the term "Beneficiary" shall be synonymous with the term "Mortgagee."
1.24 "Notice and Hearing " shall mean written notice and a hearing before the Board or the Architectural Committee, as applicable, at which the Owner concerned shall have an opportunity to be heard in person, or by counsel at the Owner's expense, in the manner further provided in the Bylaws.
1.25 "Open Space" shall mean the real property shown as Association Property parcels I through 4 on Exhibit "A" hereto.
1.26 "Owner " shall mean the Person or Persons, including Declarant, holding a fee simple interest or a long-term ground leasehold interest of record to a Lot which is a part of the Properties, excluding those persons holding title as security for the performance of an obligation other than sellers under executory contracts of sale.
1.27 "Person," shall mean a natural_ individual, a corporation or any other entity with the legal right to hold title to real property.
1.28 "Properties " shall mean all real property described in Exhibit "A" hereto, together with all Improvements thereon.
1.29 "Record ," "Recorded ," "Filed " and "Recordation," shall mean, with respect to any document, the recordation or filing of such document in the Office of the Washoe County Recorder.
1.30 "Residence " shall mean a dwelling on a Lot, intended for use and occupancy by a single Family.
1.31 "Residential Area " shall mean any of the real property in the shown as Lots I through 110 on Exhibit "A" hereto.
1.32 "Residential Lot " shall mean a Lot located within a Residential Area, together with the Improvements, if any, thereon.
1.33 ."Restrictions " shall mean this Declaration, the Articles, the Bylaws and the Rules and Regulations of the Association from time to time in effect.
1.34 "Subdivision" shall have the same meaning as the "Tenaya Creek Subdivision".
I:35 "Subdivision Streets" shaIl mean those streets designated as Tenaya Creek Lane, Mt. Dana Drive, Tuoloummne Lane, Bud Lake Lane, and Diamond "0" Drive, in Exhibit "A" to this Declaration.
1.36 "Tenaya Creek Subdivision" shall mean all of the real property described in Exhibit "A" hereto.
Article II
PURPOSE; SCOPE
2.1 Public Benefit. The intent of this Declaration is to establish, for the mutual benefit of the Owners in the Subdivision and general public of the Truckee Meadows region, a corporation under the laws of the State of Nevada which shall be delegated and assigned the powers of (1) owning, maintaining and administering the Association Property for the use of its Members and the general public, (2) administering and enforcing the Restrictions (as defined herein), and (3) collecting and disbursing the assessments and charges hereinafter created.
_ 2.2 Scope. These Restrictions apply only to the Subdivision, and nothing contained herein shall be interpreted as requiring Declarant to subject any other property _presently owned or hereinafter acquired by Declarant to these Restrictions, unless consented to by Declarant and set forth in a Recorded amendment to this Declaration.
Article III
ASSOCIATION PROPERTY
3.1 Title to the Association Property . Declarant hereby covenants for itself, its successive owners and assigns, that it will convey or cause to be conveyed to the Association and or a public agency, consistent with the covenants set forth in this Declaration, the Association Property free and clear of any and all encumbrances and liens, subject to reservations, easements, covenants, and conditions then of record, including those set forth in this Declaration, prior to the sale of all Lots in the Subdivision.
3.1 The Open Space. The Open Space shall be maintained as such by Declarant and/or Association until it is offered for dedication and accepted by the City of Reno, County of Washoe, or other public or non-profit. This Open Space shall not have any structures built upon it with the possible exception of public utility facilities and the maintenance thereof. The boundary lines of this Open Space may be adjusted and finalized when Final Maps are presented to the City of Reno for approval. The Association shall be responsible for the maintenance of the Open Space in the event the City of Reno or other entity refuses to accept the dedication of the Open Space, or any portion thereof, or should the Declarant adjust the boundaries of the Open Space and dedicate a portion thereof to the Association.
3.2 The Subdivision Streets. The Subdivision Streets are to be conveyed by the Declarant to the Association and shall be maintained by the Association. Declarant and/or the Association Board, without further approval of the Association, may elect to dedicate the Subdivision Streets to the City of Reno or County of Washoe.
3.3 Easement for Preservation. Each Owner as well as the general public is hereby granted a revocable license over the Subdivision Streets, and the Open Space to the extent permitted by the City of Reno, Washoe County, or other public or non-profit entity after conveyance of the fee title thereof from the Declarant, for the purpose of the natural preservation of the Open Space, subject to the following provisions:
(a) The right of the Association to reasonably limit the number of guests and invitees of Owners, or members of the general public, using the Association Property and any facilities thereon.
(c) The right of the Association to establish rules and regulations pertaining to the use of the Association Property.
(d) The right of the Association in accordance with the Articles, Bylaws and this Declaration, to borrow money for the purpose of improving, repairing or adding to the Association Property and facilities and in aid thereof, and, to mortgage, pledge, deed in trust, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred.
(e) The right of the Association to dedicate, release, alienate or -transfer all or any portion of the Association Property to any public agency, authority, utility or other Person for the purposes set forth in this Declaration or for such purposes and subject to such conditions as may be agreed to by the Members.
(f) The right of Declarant (and its sales agents, customers and representatives) to the nonexclusive use of the Association Property and the facilities thereon, without charge, for sales, display, access, ingress, egress and exhibit purposes, which right Declarant hereby reserves, which use shall not unreasonably interfere with the rights of enjoyment of the other Owners as provided herein.
(g) The right of the Association (by action of the Board) to reconstruct, replace or refinish any Improvement or portion thereof upon the Association Property.
(h) The right of the Association to replace destroyed trees or other vegetation and plant trees, shrubs and ground cover upon any portion of the Association Property.
(i) The right of the Association, acting through the Board, to reasonably restrict access to the Association Property.
3.4 Easements for Parking . Temporary guest or recreational parking shall be permitted within the Association Property only within spaces and areas clearly marked for such purpose, if any. The Association, through its officers, committees and agents is hereby empowered to establish "parking" and "no parking" areas within the parking areas of the Association Property, if any, as well as to enforce these parking limitations by all means lawful for such enforcement on public streets.
3.5 Easements for Vehicular Traffic. In addition to the general easements for use of the Association Property reserved herein, there shall be, and Declarant hereby reserves and covenants for itself and all future Owners within the Properties, that Declarant and each and every Owner and their respective agents, employees, guests, invitees and successors shall have nonexclusive appurtenant easements for vehicular and pedestrian traffic over any private drives or parking areas and walkways within the Association Property, subject to the parking provisions set forth herein.
3.6 Taxes. Each Owner shall execute such instruments and take such action as may reasonably be specified by the Association to obtain separate real estate tax assessment of his Lot . If any taxes or assessments may, in the opinion of the Association, constitute a lien on the Association Property, or any part thereof, they may be paid by the Association and each Owner shall be obligated to pay or to reimburse the Association for, as the case may be, for the taxes and assessments assessed by the County Assessor or other taxing authority against the Association Property and attributable to his own Lot and interest in the Association Property.
Article IV
GENERAL RESTRICTIONS ON USE OF RESIDENTIAL AREAS
4.1 Slopes. No slopes, embankments or retaining walls shall be permitted on any lot or property line that does not comply, in full, with Chapter 70 of the Uniform Building Code (as amended) which has been adopted by WashoeCounty or the City of Reno.
4.2 Residential Use Only. The Lots in the Subdivision may be used for single-family residential purposes only. There shall not exist on any time more than one first class dwelling home, being no more than two stories in height, together with the following improvements, or structures used in connection with such residence: swimming pool; patio; terrace; fences; garage; carport; and customary outbuildings provided that such outbuilding structures will not, afterwards, be converted into rental units, nor reconvened as separate dwellings, all as otherwise subject to the Restrictions.
4.3 Commercial Use Prohibited. No hospital, sanitarium, rest home, hotel or lodging house, store, dog kennels, -butchers shop, grocery store, saloon, cocktail lounge, bar, church, or other business, commercial or public enterprise, shall be maintained, carried on or conducted upon the Properties, or any portion thereof, nor shall any business, profession, or occupation be carried on or conducted upon the same. The exception to this " no commercial " clause shall be the construction work necessary to build the subdivision, renting their property by owners, the sales office and sale models set up to sell the units in the subdivision and the related commercial activity attached to these efforts.
4.4 Noxious Activities. No noxious, offensive or disturbing activity of any kind (including barking and/ or vicious dogs) shall be permitted within any structure or upon any Lot within the Subdivision.
4.5 No Partial Construction. Upon commencement of construction or set-up of any dwelling unit within the subdivision, all reasonable speed and diligence shall de employed by the owner to complete said construction, and said construction shall in all cases be- completed within twelve (12) months.
4.6 Limitations On Manufactured Homes. With the exception of the Declarant's sales offices and/or temporary construction offices / storage units used by contractors building in the Subdivision, all manufactured homes shall comply with each of the following requirements:
(a) No manufactured home may be smaller then twenty-four (24') feet in width.
(b) No manufactured home that has metal siding or metal roofing regardless of the age of the home.
(c) No pre-owned manufactured homes which are more than ten (10) years old are permitted on the Properties unless that home has been inspected and approved by the Architectural Control Committee and furthermore completes any upgrades to older manufactured home as required by the Architectural Control Committee. Upgrades may include, but not be limited to, shutters, roofing, painting, or other improvements required to maintain the quality and value in the Subdivision.
(d) All manufactured homes within the Subdivision must be placed upon permanent foundations and converted to real property, in accordance with all local and State laws, regulations and guidelines; all tongues, wheels, axles, brakes, and transportation lights be removed from the home.
4.7 Pets. No cattle, swine, or other livestock, fowl, or other animals, other than dogs, cats, two or less, or other common and ordinary household pets may be kept within the Subdivision unless specifically restricted or prohibited by municipal, county, or state regulation. No household pets or other animals whatsoever may be kept or bred for commercial purposes. Furthermore, household pets shall not interfere with the reasonable comfort and safety of adjoining neighbors. Other livestock shall not be allowed on the property. Many people indicate that there is no more annoying sound than that of a constantly barking dog. Dogs are a frequent cause of disputes between neighbors. If your pet unreasonably interferes with the use and enjoyment of the Properties, such interference shall be deemed to constitute a nuisance under Nevada law and the pet must be removed from the Lot.
4.8 Other Nuisances. All nuisance ordinances enacted by Washoe County or the City of Reno shall be considered to be Restrictions and shall be strictly enforced and referred for prosecution Barking dogs, dog droppings, vicious dogs, loud music, other noise, junk cars, trucks, or motorcycles, or parts thereof, weeds, rubbish, trash, and obnoxious or ill mannered kids are prohibited. Working on cars, trucks or motorcycles must be conducted within a garage.
4.9 Fences. No fences shall be erected or permitted to remain between the street and the front setback line in excess of -four feet in height, nor shall any fence, well or hedge placed or erected on a Lot be more that six feet in height, nor shall any fence be allowed to be a sight barrier at any Subdivision Street intersection.
4.10 Lots Adjacent to Railroad Tracks. The Lots adjacent to the railroad tracks shall be planted with two trees within five feet of the rear property line, such trees to be furnished and installed by Declarant. The two trees shall be irrigated and maintained by the Owners of these Lots, as a covenant running with the land.
4.11 Outbuildings. No portion of any uncompleted building, nor any tent, garage or outbuilding erected or maintained on Properties shall ay any time be used as a residence, temporarily or permanently, nor shall any residence of a temporary character be permitted upon the Properties; provided, however , this paragraph shall not be construed to prevent the use of a temporary construction shed or trailer, and an adequate sanitary toilet facility for workmen or sales people during the period of actual construction of any structure on the Properties.
4.12 Soil Removal. Except for the, purpose of actual construction in the Subdivision, no sand, gravel or soil shall be removed from the Properties. Unless suitable retaining walls are constructed to support the earth , the natural angle of repose of the ground shall not be altered by excavation within ten feet of the boundary line of subject premises.
4.13 Natural Vegetation. Only so much of the natural cover and brush situated upon the Properties shall be removed as is necessary to permit construction of permitted improvements upon the Properties and the construction of necessary access roads and driveways, except that additional natural cover and brush may be removed to accommodate the planting of lawns and to permit the installation of landscaping, shrubs and vegetation. When any natural cover or brush is removed, the property so cleared shall be landscaped within ninety (90) days of the removal of said cover and brush, and said landscaping shall be permanent. Nothing herein contained shall prohibit the construction of a firebreak ten feet in width surrounding the any individual parcel.
4.14 Weeds/Brush. No rubbish, brush (other than naturally living brush now situated on the Properties), weeds, undergrowth, uncultivated, diseased or infected vegetation or debris of any kind or character shall ever be placed or permitted to accumulate upon any Lot.
4.15. Fire Damage. No building or other structure damaged by fire or otherwise so that it becomes unsightly shall be permitted to remain on the Properties, and in the event of fire damage, any burned structures shall either be promptly rebuilt, refinished or torn down and removed within ninety (90) days.
4.16 Signs. No signs or other advertising device of any character shall be erected or maintained upon any Lot in the Subdivision, except the following, or as otherwise required to be permitted by law:
(a) On anyone parcel one sign, not larger than four square feet, advertising the property for sale, may be erected and maintained behind the setback line of such parcel to any street
(b) Signs necessary for the sales models and sales offices, construction job signs, and the two billboard signs near the U.S. highway.
4.17 Subdivision. No Lot may be divided, subdivided or re-subdivided to a size less than four thousand square feet, and in no cases may any Lot be subdivided without the prior written approval of the Board.
4.18 Home Appearance. All homes must comply with the following requirements and restrictions:
(a) All exterior base colors must be approved by the Architectural Committee.
(b) All exterior trim must be painted white.
(c) All cooling units must be out of sight from the
Subdivision Street in front of the home, and contained behind side or rear yard fencing. No roof mounted cooling units will be permitted in the Residential Areas.(d) All roofs must be black, and no " 3 tab shingles" will be permitted in the Residential Areas.
4.19 Right of Surface Entry. There shall be no "Right-of-Surfaces-Entry' for mining or exploration purposes within the Subdivision.
4.20 Development of Nearby Land. Each Owner, by acceptance of conveyance of title to the Lot, covenants to not oppose or in any way interfere with: (a) the development of other property, within 2,000 feet of the Subdivision, owned by Declarant; (b) the development for sale or lease of any land on the same side of the railroad tracts within or adjacent to the Subdivision; (c) future additions to the Subdivision as set forth in a Recorded Amendment to this Declaration; or (d) the formation and execution of any special assessment district established by the City of Reno or County of Washoe.
Article V
TENAYA CREEK ASSOCIATION.
5.1 Organization. The Association is a non-profit Nevada membership corporation created for the purposes, charged with the duties, and invested with the power prescribed by law or as set forth in its Articles of Incorporation and Bylaws, or in this Declaration, the latter of which shall control any conflict in said documents.
5.2 Membership. Only Owners shall be Members of the Association, and each Owner shall automatically be a member of the Association without the necessity of any further action on his part, and membership shall be appurtenant to and shall run with to the property interest. Membership may not be severed from, or in any way transferred, pledged, mortgaged or alienated except together with the title to the property interest, and then only to the transferee of title to said property interest, transferee of title to said property interest. Any attempt to make a prohibited severance, transfer, pledge, mortgage or alienation shall be void.
5.3 Voting Rights. Until the earlier of ten (10) years or such time as Declarant transfers title to at least seventy five percent (75%) of the Lots to residential Owners, Declarant shall be entitled to cast four (4) votes for each Lot owned by Declarant for the election of the Board; thereafter, Declarant shall be entitled to one vote per Lot for the election of the Association Board. On all other matters, Declarant shall have one vote per Lot owned by Declarant. All other Owners shall be entitled to one vote per Lot owned by that Owner for all matters for which Association Members are entitled to vote.
5.4 Meetings of Members. The Association shall hold an annual regular meeting of the Members. Said annual regular "meeting may be held at any reasonable place or time as may be designated and noticed by the Board in accord with Nevada law, or the Bylaws of the Association. A special meeting of the Members may be called at any reasonable time and place by notice by the Board or by notice by the Members Board in accord with Nevada law, or the Bylaws of the Association. Quorums for all meetings shall be established in accorded with Chapter 116 of the Nevada Revised Statutes, or as otherwise provided in the Bylaws of the Association.
5. 5 Powers and Duties of the Association. The Association shall have all of the powers given to such a corporation by law, subject only to such limitations upon the exercise of such powers as are expressly set forth in the Restrictions. The Association shall have the power to perform in any and all lawful acts which may be necessary or proper for or incidental to the exercise of any of the express powers of the Association. Without in any way limiting the generality of the foregoing provisions, the Association, acting through the Board, shall have the following powers and duties:
(a) Members. The Association shall accept all Owners as Members.
(b) Association Property. The Association shall accept from Declarant, own, operate, maintain and pay all applicable taxes, utilities and other expenses on and relating to, the Open Space (until, and to the extent not accepted by the City of Reno, County of Washoe or other public or non-profit entity) and the Subdivision Streets, together with the improvements thereon (collectively, the "Association Property"). The Association shall have all rights granted by law to contest the legality and the amount of any taxes or assessments levied against Association property. Until title to the Association Property is conveyed to the Association, the Association shall have an easement for the purpose of and the obligation to maintain the Association Property.
(c) Title to Association Property Upon Dissolution. Upon its dissolution, the Association shall pay over or convey the assets of the Association to one or more exempts organizations of the kind described in s 501 (c) of the Internal Revenue code of 1954, as extended from time to time.
(d) Insurance. The Association Board shall cause the Association to comply with the Insurance requirements of this Declaration.
(e) Manager. The power but not the duty to employ or contract with a professional Manager to perform all or any part of the duties and responsibilities of the Association, and shall have the power to delegate its powers to committees, officers and employees. Any such management agreement, or any agreement providing for services by Declarant to the Association, shall be for a term not in excess of one (1) year, renewable by agreement of the parties for successive 1-year periods, and any such agreement shall be terminable by the Association, acting through the Board, at any time (a) for cause upon thirty (30) days written notice thereof, and (b) without cause or the payment of a penalty or termination fee upon ninety (90) days written notice.
(f) Right of Entry and Enforcement of Restrictions. The Association shall enforce, in its own behalf and in behalf of all Owners, all of the covenants, conditions and restrictions set forth in this Declaration, under an irrevocable agency (hereby granted) couple with an interest, as beneficiary of said covenants, conditions and restrictions, and as assignee of Declarant, and, to perform all other acts, whether or not any where expressly authorized, as may be reasonably necessary to enforce any of the provisions of the Restrictions. The Association shall have the power but not the duty to, after Notice and Hearing and upon reasonable notice, to enter upon any Lot and the Improvements thereon without liability to anyone, for the purpose of enforcing any of the provisions of this Declaration, or for the purpose of maintaining and repairing the Improvements located thereon as provided in this Declaration or, if for any reason required by this Declaration to be maintained or repaired by said Owner. The Association shall also have the power and authority from time to time in its own name, commence and maintain actions and suits to restrain and enjoin any breach or otherwise, all of the provision of this Declaration. The costs of any such action or suit, including reasonable attorney's fees, shall be paid to the prevailing party as part of its judgment.
(g) Financing. The Association may execute mortgages and deeds of trust, both construction and permanent, for construction of facilities, including improvements, on the Association Property. Such financing may be affected through conventional mortgages or deeds of trust, the issuance and sale of development or other bonds, or in any other form or manner as may be deemed appropriate by the Board of Directors of the Association. The debt secured by such mortgage, deed of trust or other security instrument may be retired from revenues generated by the Common Assessments of the Members as may be deemed appropriate by the Association, subject to the limitations imposed by this Declaration.
(h) Easements and Rights of Way. The power but not the duty to grant and convey to any third party easements, licenses for use and rights of way, in, on, over or under any Association Property conveyed or otherwise transferred to the Association or under its jurisdiction, upon the affirmative vote-or-written-consent of seventy-five percent (75%) of its voting Members.
(i) Services. To pay for water, sewer, garbage removal, electricity, telephone, gas, snow removal, landscaping, gardening, and all other utilities, services and maintenance for property owned by or leased to the Association. The Board shall have the power to provide for and engage the services of others for the maintenance, protection and preservation of Association Property, including groundskeepers, painters, plumbers and such other maintenance personnel, as the nature and character of such Association Property may require, and including any such necessary personnel as the nature and character of any recreational facilities within such Association Property may require; provided, however, that no contract for such services shall be for a duration of more than one (1) year, except with the approval of a majority of the Members of the Association, and in no event for a term greater than -three -(3 years.-Said- contract shall provide for termination for cause on thirty (30) days notice and for termination without cause upon ninety (90) days notice.
(j) Other Property. The power to acquire and hold, as trustee for the benefit of its Members, tangible and intangible personal property and to dispose of the same by sale or otherwise.
(k) Mergers. The power, to the extent permitted by law, to participate in mergers and consolidations with other non-profit corporations organized for the same purposes as the Association, provided that any such merger or consolidation shall have the approval by affirmative vote or written consent of seventy-five percent (75%) of all Members of the Association.
(1) Dedication. The Association shall have the power to dedicate any of the Association Property to an appropriate public authority for public use, provided that, except as otherwise authorized in this Declaration, any such dedication shall have the approval either by affirmative vote or written consent of seventy-five (75%) of all the Members of the Association, and such dedication is subject to the existing easements and rights of use of all the Members of the Association.
(m) Delegation. The Board may delegate any of its powers to any such committees, officers or employees as it deems necessary and proper.
(n) Construction on Association Property. The Association shall have the power to construct new improvements or additions to Association Property, or demolish existing Association Property or Improvements, subject to the approval of the Architectural Committee as is required in this Declaration.
(o) Conveyances. To grant and convey to any person real property and interests therein, including fee title, leasehold estates, easements, rights of way, mortgages and deeds of trust, out of, in, on, over or under any Association Property for the purpose of constructing, erecting, operating or maintaining thereon, therein or there under: (a) parks, parkways, or other recreational facilities; (b) roads, streets, walks, driveways, trails, and paths; (c) lines, cables, wires, conduits, pipelines or other devices for utility purposes; (d) sewers, water systems, storm water drainage systems, sprinkler systems, and pipelines; and (e) any similar public, quasi-public, or private improvements or facilities.
(p) Legal and Accounting Services. To retain and pay for legal and accounting services necessary or proper in the operation of this Association, the operation and management of its property, or in the performance of any other duty, right, power or authority of the Association.
(q) Architectural Committee. To establish an Architectural Committee whose function shall be to enforce the Restrictions, establish Rules and Regulations governing the use of the Properties, and oversee the maintenance of the Association Property.
(r) Recreational Facilities. To own and operate any and all types of facilities for both active and passive recreation.
(s) Other Services and Properties. To obtain and pay for any other property and services, and to pay any other taxes or assessments which the Association or the Board is required to secure or to pay for pursuant to applicable law.
(t) Contracts. To enter into contracts with Declarant and other Persons on such terms and provisions as the Board shall determine, to operate and maintain any Association Property, or to provide any service or perform any function on behalf of Declarant.
(u) Diseased Trees, The Association may enter upon any Residential Area at any reasonable time to inspect for, prevent and control diseased trees and other plant life and insect infestation of trees and other plants. If any diseased or insect infested trees or other plant life are found, the Association may spray, remove diseased trees and other plant life, and take such other remedial measures as it deems expedient. The' cost thereof attributable to any one or more Lots may be levied against each such Lot(s) by the Association as a Special Assessment pursuant to this Declaration.
(v) Rules and Regulations. The Board may adopt such Rules and Regulations as it deems proper for the use and occupancy of the Association Property and the Residential Areas. A copy of the Rules and Regulations, as they may from time to time be adopted, amended or repealed, may be posted in a conspicuous place in the Association Property or may be mailed or otherwise delivered to each Owner. Upon such mailing delivery or posting, the Rules and Regulations shall have the same force and effect as if they were set forth herein; provided, however, that the Rules and Regulations shall be enforceable only to the extent that they are consistent with this Declaration, the Articles and the Bylaws, and the Rules and Regulations may not be used to amend any of such documents.
Article VI
FUNDS AND ASSESSMENTS
6.1 Personal Obligation of Assessments . Declarant and each Owner of any Lot, by acceptance of a deed or other conveyance therefore, whether or not it shall be so expressed in such deed or such other instrument, is deemed to covenant and agree to pay to the Association (1) annual Common Assessments for Common Expenses, (2) Capital Improvement Assessments, (3) Special Assessments, and (4) Reconstruction Assessments; such assessments to be established and collected as hereinafter provided. All Assessments other than Special Assessments, together with interest, costs, and reasonable attorney’s fees for the collection thereof, shall be a charge on the land and shall be a continuing lien upon-the Lot- against which such assessment is made. The personal obligation for delinquent Assessments shall not pass to any new Owner unless expressly assumed by such new Owner.
6.2 Maintenance Funds . The Board shall establish and maintain at least the following separate trust accounts (the "Maintenance Funds") with a Nevada bank or other recognized depository in the State of Nevada into which shall be deposited all movies paid to the Association, and from which disbursements shall be made, as provided herein, in the performance of functions by the Association under the Restrictions: (1) An Operating Fund for current expenses of the Association, (2) a Reserve Fund for replacements, repaying, painting and repairs of the landscaping, streets and other Improvements within the Association Property, and (3) any other funds which the Board of Directors may establish, to the extent necessary under the provisions of the Restrictions. To qualify for higher returns on accounts held at banking or savings institutions, the Board may commingle any amounts deposited into any of the Maintenance Funds with amounts deposited into any other Maintenance Fund, provided that (i) the integrity of each individual Maintenance Fund shall be preserved on the books of the Association by accounting for disbursements from, and deposits to, each Maintenance Fund separately, and (ii) the portions of the Maintenance Funds attributable to the maintenance, repair and replacement of the Association Property shall not be commingled with any other portions of the Maintenance Funds. Each of the Maintenance Funds shall be established as separate trust savings or trust checking accounts.
6.3 Purpose of Assessments . All amounts deposited into the Operating Fund and the Reserve Fund must be used solely for the purposes authorized by the Restrictions, as they may be amended from time to time. Disbursements from the Reserve Fund shall be made by the Board only for the respective purposes specified in this Declaration. Disbursements from the Operating Fund shall be made by the Board for such purposes as are necessary for the discharge of its responsibilities herein, other than those purposes for which disbursements from the Reserve Fund are to be used. Nothing in this Declaration shall be construed in such a way as to permit the Association to use any assessments to abate any annoyance or nuisance emanating from outside the physical boundaries of those portions of the Properties designated as Phases of Development. Nothing contained
herein shall limit, preclude or impair the establishment of additional Maintenance Funds by the Association earmarked for specified purposes authorized by the Restrictions.
6.4 Damage to Association Property by Owners. Maintenance, repairs or replacements within the Association Property arising out of or caused by the willful or negligent act of an Owner, his family, guests, tenants or invitees shall be done at such Owner's expense, after Notice and Hearing, and a Special Assessment therefore shall be levied against such Owner; provided, however, that the liability of an individual Owner for such damage to the Association Property shall not be absolute, but shall only be that for which the Owner is legally responsible under State law.
6.6 Common Assessments. Each annual Common Assessment shall constitute an aggregate of separate assessments for each of the applicable Maintenance Funds, reflecting-an itemization of the amounts assessed and attributable to prospective deposits into the Reserve Fund, Operating Fund and any other Maintenance Fund established by the Association. Sums sufficient to pay Common Expenses shall be allocated among the Owners and their respective Lots based upon the number of assessment units chargeable to each such Owner. The Owner of each single-Family Lot shall be charged with one (1) assessment unit for each such Lot owned by him. Each Owner's proportionate share of the Common Assessment shall be a fraction, the numerator of which shall be the number of assessment units charged to such Owner and the denominator of which shall be the total number of assessment units charged to all Lots and s subject to assessment. The Subdivision is hereby charged with one hundred ten (110) assessment units. If the number of Lots constructed in the Subdivision is less than one hundred ten (110), the amount of any Capital Improvement Assessments, Common Assessments or Reconstruction Assessments which would have been levied against unobstructed Lots in the Subdivision shall be reallocated equally among the Lots actually constructed in the Subdivision.
6.7 Date of Commencement of Common Assessments. Common Assessments shall commence as to each Lot on the first day of the first month following the month in which the first Close of Escrow occurs for the sale of a Lot or on the first day of the first month following the month in which the Association Property, if any, is conveyed to the Association, whichever occurs first. Each such Lot shall thereafter be subject to its share of the then established annual Common Assessment as set forth herein. The first annual Common Assessment shall be adjusted according to the number of months remaining in the fiscal year as set forth in the Bylaws. The Board shall fix the amount of the annual Common Assessment to be levied against each Lot at least thirty (30) days in advance of each Common Assessment period. Written notice of any change in the amount of the annual Common Assessment shall be sent to every Owner subject thereto, at least thirty (30) days prior to the effective date of such change. All installments of Common Assessments shall be collected in advance on a regular basis by the Board, at such frequency and on such due dates as the Board shall determine from time to time in its sole and absolute discretion. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer or agent of the Association, setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments against a Lot shall be binding upon the Association as of the date of its issuance. Each installment of a Common Assessment may be paid by the Owner to the Association in one check or in separate checks, as payments attributable to deposits into specified Maintenance Funds. If any payment of a Common Assessment installment is less than the amount assessed and the
payment does not specify the Maintenance Fund into which it should be deposited, the payment received by the Association from that Owner shall be credited in order of priority first to the Operating Fund, until that portion of the Common Assessment has been satisfied, and second to the Reserve Fund.
From time to time the Board of Directors may determine that all excess funds remaining in the Operating Fund, over and above the amounts used for the operation of the Properties may be retained by the Association and used to reduce the following year's Common Assessment. Upon dissolution of the Association incident to the abandonment
or termination of the maintenance of the Properties, any amounts remaining in any of the Maintenance Funds shall be distributed proportionately to or for the benefit of an entity organized pursuant to Section 501 (c)(3) of the Internal Revenue Code, or a governmental entity, for the benefit of the maintenance of the Association Property.
6.7 Capital Improvement Assessments. The Board, with the vote of Delegates representing at least fifty-one percent (51 %) of the voting power of the Association, may levy, in any fiscal year, a Capital Improvement Assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a Capital Improvement upon the Association Property, including fixtures and personal property related thereto. All Capital Improvement Assessments shall be levied among the Owners based upon the number of. assessments units (determined pursuant to Section 6.5) chargeable to each Owner.
6.8 Special Assessments. The Association shall also have authority to levy assessments against specific local areas and improvements to be expanded for the benefit of the properties so assessed. The assessments levied under this shall be levied in proportion to the benefit conferred or to be conferred, as determined by the Board, and therefore the amount levied against each parcel of land or Improvement need not be equal. Any such assessments shall constitute a lien on the properties so assessed.
Section 6.8. Exempt Property . The following property subject to this Declaration shall be exempt from the Assessments herein:
(a) Those portions of the Properties dedicated to and accepted by a local authority or non-profit entity; and
(b) The Association Property.
6.9 Remedies of the Association. Any installment of a Common Assessment, Capital Improvement Assessment, Special Assessment, or Reconstruction Assessment not paid within thirty (30) days after it is due, shall bear interest from the due date until paid at a date of up to twelve percent (12%) per annum. The Board may require a delinquent Owner to pay a late charge in addition to the interest described above to compensate the Association for increased bookkeeping, billing and other administrative costs. No such late charge shall exceed the maximum amount allowable by law. If any installment of an assessment is not paid within thirty (30) days after it is due, the Association may bring an action at law against the Owner personally obligated to pay the same, or may foreclose the lien against his Lot. No Owner may waive or otherwise escape liability for the assessments provided for herein by nonuse of the Association Property or abandonment of his Lot . If any installment of an Assessment is not paid within thirty (30) days after its due date, the Board may mail an acceleration notice to the Owner and to each first Mortgagee of the Owner's Lot which has requested a copy of the notice. The notice shall specify (1) the fact that the installment is delinquent, (2) the action required to cure the default, (3) the date, not less than thirty (30) days from the date-the notice is mailed t6 the Owner, by which such default may be cured, and (4) that failure to cure the default on or before the dale specified in the notice may result in acceleration of the balance of the installments of the Assessment for the then current fiscal year, and sale of the Lot or. The notice shall further inform the Owner of his right to cure after acceleration. If the delinquent installment of Assessments and any charges thereon are not paid in full on or before the date specified in the notice, the Board, at its option, may declare all of the unpaid balance of the Assessment levied against such Owner and such Owner's Lot to be immediately due and payable without further demand, and may enforce the collection of the full Assessment and all charges thereon in any manner authorized by law and this Declaration.
6.10 Notice of Lien. No action shall be brought to enforce any assessment lien herein, unless a Notice of Lien is deposited in the United States mail, certified or registered, postage prepaid, to the Owner of the Lot , and a copy thereof has been Recorded by the Association. Such Notice of Lien must recite (a) a description of the Lot against which the assessment was made, (b) the name of the record Owner of the Lot and (c) the amount of the assessment and interest, costs (including attorney’s fees) and penalties. The Notice of Lien shall be signed and acknowledged by an officer of the Association. The lien shall continue until fully paid or otherwise satisfied.
6.11 Foreclosure Sale . Any such sale provided for above may be conducted by the Association, its agent or attorney in accordance with the provisions of Covenants No. 6, 7 and 8 of NRS 107.030 and 107.090 insofar as they are consistent with the provisions of NRS 278A.160, or in any other manner permitted bylaw. The Association shall have the power to bid on the Lot at the foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. Upon completion of the foreclosure sale, an action may be brought by the Association or the purchaser at the sale in order to secure occupancy of the defaulting Owner's Lot or, and the defaulting Owner shall be required to pay the reasonable rental value-of such-Lot during any period of continued occupancy by the defaulting Owner. Unless otherwise permitted by law, no sale to foreclose an assessment lien may be conducted until (1) the Association, its agent or attorney has first executed and Recorded a notice of default and election to sell the Lot or cause its sale ("Notice of Default") to satisfy the assessment lien, and (2) the delinquent Owner or such Owner's successor in interest has failed to pay the amount of the delinquent assessment and interest, costs (including attorneys fees) and expenses incident to its enforcement for a period of sixty (60) days. Such sixty (60) day period shall commence on the first day following the day upon which the Notice of Default is Recorded and a copy thereof is mailed by certified mail with postage prepaid to the Owner or such Owner's successor in interest at his address, if the address is known, and otherwise to the address of the Lot. The Notice of Default must describe the deficiency in payment. The Association, its agent or attorney shall, after the expiration of such sixty (60) day period and before the foreclosure sale, give notice of the time and place of the sale in the manner and for a time not less than that required by law for the sale of real property upon execution, except that a copy of the notice of sale must be mailed on or before the first publication or posting by certified mail with postage prepaid to the Owner or such Owner's successor in interest at his address if known, and otherwise to the address of the Lot or.
6.12 Curing of Default. Upon the timely curing of any default for which a Notice of Lien was filed by the Association, the Association shall Record an appropriate Release of Lien, upon payment by the defaulting Owner of a reasonable fee to be determined by the Board, to cover the cost of preparing and Recording such release. A certificate, executed and acknowledged by any two (2) members of the Board or the Manager stating the indebtedness secured by the liens upon any Lot created hereunder, shall be conclusive upon the Association and the Owners as to the amount of such indebtedness as of the date of the certificate in favor of all persons who rely thereon in good faith. Such certificate shall be furnished to any Owner upon request at a reasonable fee, to be determined by the Board.
6.13 Cumulative Remedies . The assessment liens and the rights of foreclosure and sale thereunder shall be in addition to and not in substitution for all other rights and remedies which the Association and its assigns may have hereunder and by law, including a suit to recover a money judgment for unpaid assessments, as above provided.
6.14 Mortgage Protection . Notwithstanding all other provisions hereof, no lien created hereunder, nor any breach of this Declaration, nor the enforcement of any provision hereof shall defeat or render invalid the rights of the Beneficiary under any Recorded Deed of Trust upon a Lot or, made in good faith and for value; provided that (i) such Deed of Trust is Recorded prior to any notice of lien or notice of noncompliance Recorded pursuant to this Declaration, and (ii) after such Beneficiary or some other Person obtains title to such Lot or by judicial foreclosure or by means of the powers set forth in such Deed of Trust, such lot or shall remain subject to the Restrictions and the payment of all installments of Assessments, accruing subsequent to the date such Beneficiary or other Person obtains title.
6.15 Priority of Assessment Lien. The lien of the assessments, including interest and costs (including attorney’s fees) as provided for herein, shall be subordinate to the lien of any first Mortgage upon any Lot. The sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to judicial or nonjudicial foreclosure of a first Mortgage shall extinguish the lien of such assessment as
to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from lien rights for any assessments thereafter becoming due. Where the beneficiary of a first Mortgage of Record or other purchaser of a Lot obtains title, the Person who acquires title and his successors and assigns shall not be personally liable for the share of the Common Expenses or assessments by the Association chargeable to such Lot which became due prior to the acquisition of title to such Lot by such Person.
6.16 Capital Contributions to the Association. Unless VA waives this requirement in writing, upon acquisition of record title to a Lot, each Owner of such Lot shall contribute to the capital of the Association an amount equal to one-sixth (1/6) of the amount of the then Common Assessment for said Lot. This amount shall be deposited by the buyer into the purchase and sale escrow and disbursed therefrom to the Association or to Declarant on behalf of the Association.
ARTICLE VII INSURANCE
7.1 Insurance Obligations. The-Association Board shall cause to be obtained and maintained adequate blanket public liability insurance (including medical payments), with such limits as required by Nevada law or as may be considered acceptable to the Federal National Mortgage Association (not less than one million dollars covering all claims for personal injury and property damage arising out of a single occurrence), insuring against liability for bodily injury, death and property damage arising from the activities of the Association and its Members, with respect to the Association Property and any other property under its jurisdiction. The Board shall also cause to be obtained and maintained fire and casualty insurance with extended coverage, without deduction for depreciation, in an amount as near as possible to the full replacement value of the Association Property. Such insurance shall be maintained for the benefit of the Association, the Owners, and the Mortgagees, as their interests may appear as named insured, subject, however, to loss payment requirements as set forth herein. The Board of Directors shall purchase such other insurance, as necessary, including, but not limited to, errors and omissions, directors, officers and agents liability insurance, plate glass insurance, medical payments, malicious mischief, liquor liability and vandalism insurance, fidelity bonds and workers_ compensation, and such other risks as shall customarily be covered with respect to projects similar in construction, location, and use. Fidelity bond coverage, as set forth below, must be obtained by or on behalf of the Association for any person or entity handling funds of the Association, including, but not limited to, officers, directors, trustees, and employees of the Association, whether or not such persons are compensated for their services, and employees of the Manager, whether such Manager is an employee or an independent contractor. The aggregate amount of such fidelity bonds shall not be less than a sum equal to three (3) months aggregate Common Assessments on all Lots in the Properties, plus the amount of the Reserve Fund. Notwithstanding any other provision herein, the Association shall continuously maintain in effect such casualty, flood, and liability insurance and a fidelity bond, meeting the insurance and fidelity bond requirements established by the Federal National Mortgage Association ("FNMA"), the Government National Mortgage Association ("GNMA"), the Federal Home Loan Mortgage Corporation ("FHLMC"), VA and FHA, so long as any of which is an Owner of a Lot or a Beneficiary, insurer or guarantor of a Mortgage on a Lot in the Properties, except to the extent such coverage is not available or has been waived in writing by the FNMA, GNMA, FHLMC, VA and FHA as applicable. Certificates of insurance shall be issued to each Owner and Mortgagee upon written request.
7.2 Waiver of Claims Against Association. As to all policies of insurance maintained by or for the benefit of the Association and the Owners, the Association and the Owners hereby waive and release all claims against one another, the Board of Directors, and Declarant to the extent of the insurance proceeds available, whether or not the insurable damage or injury is caused by the negligence of or breach of any agreement by any of such persons.
7.3 Notice of Expiration Requirements. If available, all of the policies of insurance maintained by the Association shall contain a provision that such policy or policies shall not expire nor be cancelled, terminated, or materially modified without at least ten (10) days prior written notice to the Board, Declarant, and Owners and those Beneficiaries, insurers or guarantors of first Mortgages and Owners who have filed a written request with the carrier for such notice, and every other person in interest who requires such notice of the insurer. Fidelity bond coverage shall not be cancelled or substantially decreased unless each FNMA servicer servicing first Mortgages held by FNMA on Lots and the insurance trustee, if any, appointed have received ten (10) days written notice of such cancellation or decrease in fidelity bond coverage.
7.4 Insurance Premiums. Insurance premiums for any insurance coverage obtained by the Association and any other insurance deemed necessary by the Board of Directors shall be a Common Expense to be included in the Common Assessments levied by the Association and collected from the Owners. That portion of the Common Assessments necessary for the required insurance premiums shall be separately accounted for by the Association in the Reserve Fund, to be used solely for the payment of premiums of required insurance as such premiums become due.
7.5 Trustee for Policies. The Association, acting through its Board of Directors, is hereby appointed and shall be deemed-trustee . of the interests of all named insureds under policies of insurance purchased and maintained by the Association. All insurance proceeds under any such policies as provided for in this Declaration shall be paid to the Board of Directors as Trustees. The Board shall have full power to receive and to receipt for the proceeds and to deal therewith as provided herein. Insurance proceeds shall be used by the Association for the repair or replacement of the property for which the insurance was carried. The Board is hereby granted the authority to negotiate loss settlements with the appropriate insurance carriers, with participation to the extent they desire, of first Mortgagees who have filed written requests within ten (10) days of receipt of notice of any damage or destruction. Any two (2) Directors of the Association may sign a loss claim form and release form in connection with the settlement of a loss claim, and such signatures shall be binding on all the named insureds. Notwithstanding the foregoing, there may be named as-an -insured a representative chosen by the Board, including a trustee with whom the Association may enter into an insurance trust agreement or any successor to such trustee, who shall have exclusive authority to negotiate losses under any policy providing property or liability insurance and to perform such other functions as are necessary to accomplish this purpose.
7.6 Actions as Trustee. Except as otherwise specifically provided in this Declaration, the Board, acting on behalf of the Association and all Owners, shall have the exclusive right to bind such parties in respect to all matters affecting insurance carried by the Association, the settlement of a loss claim, and the surrender, cancellation, and modification of all such insurance. Duplicate originals or certificates of all policies of fire and casualty insurance maintained by the Association and of all renewals thereof, together with proof of payment of premiums, shall be delivered by the Association to all Mortgagees who have requested the same in writing.
7.7 Annual Insurance Review. The Board shall review the insurance carried by or on behalf of the Association, at least annually, for the purpose of determining the amount of the casualty and fire insurance.
7.8 Required Waiver. All policies of physical damage insurance shall provide, if reasonably possible, for waiver of the following rights to the extent that the respective insurers would have the rights without such waivers:
(a) subrogation of claims against the Owners and tenants of the Owners;
(b) any defense based upon co-insurance;
(c) any right of setoff, counterclaim; apportionment, proration or contribution by reason of other insurance not carried by the Association;
(d) any invalidity, other adverse effect or defense on account of any breach of warranty or condition caused by the Association, any Owner or any tenant of any Owner, or arising from any act, neglect, or omission of any named insured or the respective agents, contractors and employees_ of any insured;
(e) any right of the insurer to repair, rebuild, or replace, and, if the Improvement is not repaired, rebuilt, or replaced following loss, any right to pay under the insurance an amount less than the replacement value of the Improvements insured;
(f) notice of the assignment of any Owner of his interest in the insurance by virtue of a conveyance of any Lot; and
(g ) any right to require any assignment of any mortgage to the Insurer.
ARTICLE VIII
MISCELLANEOUS
8.1 Term. The covenants and restrictions of this Declaration are designed to create equitable servitudes and covenants appurtenant to and running with the land and they shall run with and bind the Properties, and shall inure to the benefit of and be enforceable by the Association or the Owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of fifty (50) years from the date this Declaration is Recorded, after which time such covenants, conditions, reservation of easements, equitable servitudes and restrictions shall be automatically extended for successive periods of ten (10) years, unless a Declaration of Termination meeting the requirements of an amendment to this Declaration as set forth hereunder has been Recorded.
8.2 Amendments to Declaration.
(a) By Declarant. Prior to the commencement of Common Assessments, the provisions of this Declaration may be amended or terminated by recordation of a written instrument signed by Declarant setting forth such amendment or termination.
(b) By Members. After commencement of Common Assessments, this Declaration may be amended or terminated by recordation of a written instrument signed by the Association setting forth such amendment or termination and attesting that at least seventy five percent (75%) of the members have consented to the amendment or termination; provided, however, that the Restrictions shall not be modified, abrogated, rescinded or terminated without the prior written consent of the Declarant, so long as Declarant shall be the owner of any one Lot in the Tenaya Creek Subdivision.
(c) Approval of First Mortagees / Beneficiaries of Deeds of Trust. Notwithstanding the foregoing, any amendment which would or could result in an encumbrance being cancelled by forfeiture, or an individual Lot not being assessed separately for tax purposes, in order to be effective, must be approved by the record holders and insurers of seventy five percent (75%) of the first Mortagees at the time of the amendment, based upon one (1) vote for each Mortgage or Deed of Trust owned or insured.
8.3 Enforcement and Non-Waiver.
(a) Right of Enforcement. Except as otherwise expressly provided herein, the Association, the successors-in-interest of the Association and any Owner, including Declarant (so long as Declarant owns a Lot in the Properties), shall have the right to enforce any or all of the provisions of the Restrictions against any property within the Properties and the Owners thereof. Such right shall include an action for damages, as
well as an action to enjoin any violation of the Restrictions. Each Owner shall have a right of action against the Association for its failure to comply with the Restrictions.
(b) Violations and Nuisance. Every act or omission whereby any provision of the Restrictions is violated in whole or in part is hereby declared to be a nuisance and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result and may be exercised by any Owner, by the Association, or its successors-in-interest.
(c) Violation of Law. Any violation of any state, municipal or local law, ordinance or regulation pertaining to the ownership, occupation or use of any property within the Properties is hereby declared to be a violation of the Restrictions and subject to all of the enforcement procedures set forth in the Restrictions.
(d) Remedies Cumulative . Each remedy provided by the Restrictions is cumulative and not exclusive. The Association may, at its option, without waiving the right to enforce its lien against the Lot, bring a suit at law to enforce each assessment obligation.
(e) Non-Waiver. The failure of the Association to enforce any of the provisions of the Restrictions at any time shall not constitute a waiver of the right thereafter to enforce any such provision or any other provisions of the Restrictions.
(f) Mortgages . Any breach or amendment of the covenants, conditions or restrictions contained in the Restrictions shall not affect or impair the lien or charge of any first Mortgage or Deed of Trust made in good faith and for value on any Lot or the Improvements thereon; provided, however, that any subsequent Owner of such property shall be bound by such covenants, whether such Owner's title was acquired by foreclosure in a trustee's sale or otherwise.
(g) Attorneys Fees. Any judgment rendered in any action or proceeding hereunder shall include a sum for attorneys fees in such amount as the Court may deem reasonable, in favor of the prevailing party, as well as the amount of delinquent payment (if applicable), interest thereon, late charges (if any) and Court costs.
(h) Special Assessment . If any Member or his Family, guests, licensees, lessees or invitees violates the Restrictions, the Board may, after Notice and Hearing and in addition to the other remedies available, impose a reasonable Special Assessment upon such Owner for each violation and may as further provided in the Bylaws, suspend or condition such Member's right to use any portion of the Association Property. Any such suspension or conditional suspension shall be for a period of not more than thirty (30) days for any noncontinuing infraction, but in the-ease-of a--continuing infraction (including nonpayment of any assessment after the same becomes delinquent) may be imposed for so long as the violation continues. The Board may also adopt a schedule of reasonable fines or penalties which, in its reasonable discretion, it may assess against an Owner for failure of a resident of or visitor to his Lot to comply -with any provision of the Restrictions, other than Article 6 hereof. Such fines or penalties may only be assessed by the Board after Notice and Hearing.
8.4 Interpretation .
(a) Restrictions Construed Together. All of the provisions of the Restrictions shall be liberally construed together to promote and effectuate the fundamental concepts of the Properties as set forth in the Preamble to this Declaration. The Restrictions shall be construed and governed by the laws of the State of Nevada.
(b) Restrictions Severable. Notwithstanding the provisions of the foregoing subparagraph (a), each of the provisions of the Restrictions shall be deemed independent and severable, and the invalidity or partial invalidity of any provision or portion thereof shall not affect the validity or enforceability of any other provision.
(c) Singular Includes Plural . Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular; and the masculine, feminine or neuter shall each include the masculine, feminine and neuter.
8.5 Captions. All captions and titles used in this Declaration are intended solely for convenience of reference and shall not affect that which is set forth in any of the provisions hereof.
8.6 Reservation of Easements. Declarant expressly reserves for the benefit of all of the Properties reciprocal easements for access, ingress and egress for all Owners to and from their respective Lots, for installation and repair of utility services; for encroachments of Improvements constructed by Declarant or authorized by the Architectural Committee over the Association Property, for drainage of water over, across and upon adjacent Lots or the Association Property resulting from the normal use of adjoining Lots or the Association Property and for necessary maintenance and repair of any Improvement. Such easements may be used by Declarant, its successors, purchasers, the Association, and all Owners, their guests, tenants and invitees, residing on or temporarily visiting the Properties, for pedestrian walkways, vehicular access and such other purposes reasonably necessary for the use and enjoyment of a Lot or the Association Property.
8.7 Constructive Notice and Acceptance . Every person who owns, occupies or acquires any right, title, estate or interest in or to any Lot or other portion of the Properties does and shall be conclusively deemed to have consented and agreed to every limitation, restriction, easement, reservation, condition and covenant contained herein, whether or not any reference to this Declaration is contained in the instrument-by which such person acquired an interest in the Properties, or any portion thereof.
8.8 No Representations or Warranties. No representations or warranties of any kind, express or implied, have been given or made by Declarant or its agents or employees in connection with the Properties or any portion of the-Properties, or any Improvement thereon, its physical conditions, zoning, compliance with applicable laws, fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof, except as specifically and expressly set forth in this Declaration and except as may be filed by Declarant from time to time with a governmental authority.
8.9 Nonliability and Indemnification. No member of the Board shall be personally liable to any of the other Board Members, to the Members or to any other person, including Declarant, for any error or omission of the Association, its representatives and employees. Provided that such Board member has, upon the basis of such information as may be possessed by him, acted in good faith. Except to the extent such liability, damage or injury is covered by any type of insurance, the Association's Officers, Directors,, agents and employees, including members of the Architectural Committee, shall be indemnified by the Members and the Association against all expenses and liabilities, including attorneys fees, reasonably incurred by or imposed upon any of them in connection with any proceeding to which any of them may be a party, or in which any of them may become involved, by reason of their being or having been an Officer, Director or employee of the Association, or any settlement thereof, whether or not they are an Officer, Director or employee at the time such expenses are incurred, except in such cases wherein such person is adjudged to have committed willful misfeasance or malfeasance in the performance of his duties. Notwithstanding the foregoing, in the event of a settlement, the indemnification shall apply only when the Board of Directors of the Association determines that such settlement and reimbursement is in the best interest of the Association.
8.10 Priorities and Inconsistencies . If there are conflicts or inconsistencies between this Declaration and either the Articles of Incorporation or the Bylaws of the Association, the terms and provisions of this Declaration shall prevail.
