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              DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS


                                                                            for

                                                        BOARDWALK PHASE II

 

 

 

 

 

 

 

 

 

                                                                     Adopted by

                                                  Boulder-Larimer Properties, Inc.,

                                                                      Declarant

 

 

 

 

 

 

 

 

 

                                                                          as of

 

                                                                    April 7, 1989


 

 

 

                                                         TABLE OF CONTENTS


 

                                                                                                                                                     Page

                                                                       Article I

                                                                 DEFINITIONS ..........................................................    2

 

               1.1         "Architectural Review Committee" or "Committee"..............................................    2

               1.2         "Articles" or "Articles of Incorporation" ..............................................................    2

               1.3         "Assessment Lien" .............................................................................................    2

               1.4         "Assessment Notice" .........................................................................................    2

               1.5         "Association" ....................................................................................................    2

               1.6         "Building" ..........................................................................................................    2

               1.7         "Building Site" ...................................................................................................    2

               1.8         "Building Site Equivalent" ...................................................................................    3

               1.9         "Bylaws" ...........................................................................................................    3

               1.10       "Board of Directors" or "Board" ........................................................................    3

               1.11       "Common Area" ...............................................................................................    3

               1.12       "Declarant" .......................................................................................................    3

               1.13       "Declarant Control Period" ................................................................................    3

               1.14       "Declaration" .....................................................................................................    3

               1.15       "First Mortgage" ...............................................................................................    3

               1.16       "First Mortgagee" ..............................................................................................    3

               1.17       "Floor Area" .....................................................................................................    4

               1.18       "Improvement" ..................................................................................................    4

               1.19       "Major Repairs .................................................................................................    4

               1.20       "Managing Agent" .............................................................................................    4

               1.21       "Map" ...............................................................................................................    4

               1.22       "Mortgage" .......................................................................................................    5

               1.23       "Mortgagee" .....................................................................................................    5

               1.24       "Owner" ...........................................................................................................    5

               1.25       "Party Wall" ......................................................................................................    5

               1.26       "Perimeter Fence" .............................................................................................    5

               1.27       "Permittee" ........................................................................................................    5

               1.28       "Person" ...........................................................................................................    5

               1.29       "Project" ...........................................................................................................    5

               1.30       "Property" .........................................................................................................    5

               1.31       "Undeveloped Building Site" ..............................................................................    5

 

 

                                                                       Article II

                                                            THE ASSOCIATION .....................................................    6

 

               2.1         General Purposes and Powers ...........................................................................    6

               2.2         Board of Directors ............................................................................................    6

               2.3         Amplification by Bylaws ....................................................................................    7

               2.4         Management and Maintenance of Common Area ...............................................    7

               2.5         Maintenance Reserves ......................................................................................    7

               2.6         Driveways and Parking Areas ...........................................................................    7

               2.7         Undeveloped Building Sites ...............................................................................    7

               2.8         Entry onto Building Sites ...................................................................................    7

               2.9         Recovery from Owners .....................................................................................    8

               2.10       Labor and Services ...........................................................................................    8

               2.11       Special Services ................................................................................................    8

               2.12       Property of the Association ...............................................................................    8

               2.13       Implied Rights ...................................................................................................    8

               2.14       Right to Enforce ................................................................................................    9

 

 

                                                                      Article III

                                                 RIGHTS IN THE ASSOCIATION ..........................................    9

 

               3.1         Membership and Inseparability of Rights ............................................................    9

               3.2         Voting ..............................................................................................................    9

               3.3         Changes in Undeveloped Building Sites ............................................................   10

               3.4         Owners' Addresses for Notices ........................................................................   10

 

 

                                                                      Article IV

                                          COMMON AREA RIGHTS AND USAGE ..................................   10

 

               4.1         Rights and Easements in the Common Area ......................................................   10

               4.2         Easements for Access ......................................................................................   10

               4.3         Additional Easements, Licenses and Permits .....................................................   11

               4.4         Limitations and Restrictions ..............................................................................   11

               4.5         Association as Owner of the Common Area .....................................................   11

 

 

                                                                       Article V

                                                                ASSESSMENTS ........................................................   11

 

               5.1         Annual Budget .................................................................................................   11

               5.2         Regular Assessments ........................................................................................   11

               5.3         Notice to Owners ............................................................................................   12

               5.4         Special Assessments ........................................................................................   12

               5.5         Deposit for Reserves ........................................................................................   12

               5.6         Payment Terms, Late Charges, Interest and Collection Costs ............................   12

               5.7         Personal Obligation ..........................................................................................   13

               5.8         Remedies for Nonpayment ...............................................................................   13

               5.9         Lien for Assessments .......................................................................................   13

               5.10       Borrowing by Association ................................................................................   14

               5.11       Liability of Transferees .....................................................................................   15

               5.12       Certificate as to Status of Assessments .............................................................   15

 

 

                                                                      Article VI

                                                                  EASEMENTS ..........................................................   15

 

               6.1         Easements of Record .......................................................................................   15

               6.2         Easement for Encroachments ............................................................................   15

               6.4         Utility Easement ...............................................................................................   16

               6.5         Emergency Easement .......................................................................................   16

               6.6         Easements for Maintenance ..............................................................................   16

               6.7         Easements for Drainage ....................................................................................   17

               6.8         Easements for Restorations and Repairs ...........................................................   17

               6.9         Declarant's Rights Incident to Construction .......................................................   17

               6.10       Easements Deemed Created ............................................................................   18

 

 

                                                                     Article VII

                                       ARCHITECTURAL REVIEW COMMITTEE ...............................   18

 

               7.1         Committee .......................................................................................................   18

               7.2         Purpose ...........................................................................................................   18

               7.3         Aesthetic Considerations ..................................................................................   18

               7.4         Building Standards ...........................................................................................   19

               7.5         Criteria for Review ...........................................................................................   19

               7.6         Review Procedures ..........................................................................................   20

               7.7         Compliance with Legal Requirements ...............................................................   21

               7.8         Diligence in Completion ....................................................................................   21

               7.9         Noncompliance ................................................................................................   21

               7.10       Variances ........................................................................................................   22

               7.11       Approvals Set no Precedents ...........................................................................   23

               7.12       Meetings ..........................................................................................................   23

               7.13       Compensation of Members ..............................................................................   23

               7.14       Address ...........................................................................................................   23

 

 

                                                                    Article VIII

                                                               RESTRICTIONS .......................................................   23

 

               8.1         Building Sites to be Maintained .........................................................................   23

               8.2         Owners' Duty of Maintenance and Repair .........................................................   23

               8.3         Use of Common Area ......................................................................................   24

               8.4         Zoning Compliance ..........................................................................................   24

               8.5         Garbage and Refuse Disposal ...........................................................................   24

               8.6         Drainage ..........................................................................................................   24

               8.7         No Imperiling of Insurance ...............................................................................   24

               8.8         No Violation of Law ........................................................................................   24

               8.9         Underground Electric Lines ..............................................................................   25

               8.10       Parking Areas ..................................................................................................   25

               8.11       Declarant's Use ................................................................................................   25

               8.12       Determination of Violations ..............................................................................   25

 

 

                                                                      Article IX

                                                                PARTY WALLS ........................................................   25

 

               9.1         General Rules of Law to Apply ........................................................................   25

               9.2         Repair and Maintenance ...................................................................................   25

               9.3         Negligence .......................................................................................................   26

               9.4         Right to Contribution ........................................................................................   26

               9.5         Arbitration .......................................................................................................   26

 

 

                                                                       Article X

                                                                  INSURANCE ..........................................................   26

 

            10.1          Liability Insurance ............................................................................................   26

            10.2          Hazard Insurance on Common Area .................................................................   27

            10.3          Fidelity Insurance .............................................................................................   27

            10.4          Workers' Compensation and Employer's Liability Insurance ..............................   27

            10.5          Officers' and Directors' Liability Insurance ........................................................   27

            10.6          Other Insurance ...............................................................................................   27

            10.7          Insurance Standards .........................................................................................   27

            10.8          Insurance Reviews ...........................................................................................   28

            10.9          Premiums .........................................................................................................   28

            10.10        Waiver of Claims .............................................................................................   28

 

 

                                                                      Article XI

                            DAMAGE TO OR DESTRUCTION OF COMMON AREA ....................   29

 

            11.1          Notice to Owners. ...........................................................................................   29

            11.2          Segregation of Repair Funds ............................................................................   29

            11.3          Competitive Bids; Bonds; Exceptions ...............................................................   29

            11.4          Repair; Disposition of Surplus ..........................................................................   29

 

 

                                                                     Article XII

                                          CONDEMNATION OF COMMON AREA ..................................   30

 

            12.1          Consequences of Condemnation ......................................................................   30

            12.2          Notice to Owners ............................................................................................   30

            12.3          Complete Taking .............................................................................................   30

            12.4          Partial Taking ...................................................................................................   30

            12.5          Protection of First Mortgagees .........................................................................   30

 

 

                                                                    Article XIII

                                                             MISCELLANEOUS .....................................................   31

 

            13.1          Term of Declaration .........................................................................................   31

            13.2          Effect of Termination ........................................................................................   31

            13.3          Association as Attorney-in‑Fact .......................................................................   31

            13.4          Amendment of Declaration ...............................................................................   31

            13.5          Actions Requiring Special Approval .................................................................   32

            13.6          Surrender of Declarant Control ........................................................................   32

            13.7          Notice to Mortgagees ......................................................................................   32

            13.8          Separate Taxation ............................................................................................   33

            13.9          Indemnification .................................................................................................   33

            13.10        Covenants Run With Property ..........................................................................   33

            13.11        Conflicts in Legal Documents ...........................................................................   33

            13.12        Non-Waiver ....................................................................................................   33

            13.13        Number and Gender ........................................................................................   34

            13.14        Captions ..........................................................................................................   34

            13.15        Severability ......................................................................................................   34

 

 

EXHIBITS

 

Exhibit A ‑ Legal Description of Property

 

Exhibit B ‑ Building Sites

 

Exhibit C ‑ Undeveloped Building Sites

 

Exhibit D - Fractional Vote Allocation

 


              DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

                                                                            for

                                                        BOARDWALK PHASE II

 

 

                        THIS DECLARATION, made as of the 7th day of April, 1989, by BOULDER-LARIMER PROPERTIES, INC., a Colorado corporation, hereinafter sometimes referred to as the "Declarant",

                                                    W I T N E S S E T H   T H A T:

                        WHEREAS, Declarant is the owner of the real property in Larimer County, Colorado, described in Exhibit A attached hereto, and referred to in this Declaration as the "Property"; and

 

                        WHEREAS, Declarant's predecessor in title constructed certain office buildings and other improvements on the Property, and Declarant or its successors may construct office, retail or restaurant buildings, as well as certain other improvements, appurtenances and facilities, on the Property; and

 

                        WHEREAS, Declarant desires to subject and place upon the Property certain covenants, conditions, restrictions, ease­ments, reservations, rights-of-way and other charges set forth herein for the purpose of protecting the value and desirability of the Property, and for the purpose of furthering a compre­hensive plan for the appropriate improvement and development, ownership, maintenance and sale of the Property, and to

Tab set at 15

            (a)        Protect the Owners, tenants and occupants of Building Sites against improper development and use of surrounding Building Sites that might depreciate unreasonably the value and use of their Building Sites;

 

            (b)        Assure reasonably consistent development of the Property;

 

            (c)        Prevent the erection on the Property of structures con­structed of improper or unsuitable materials or with improper quality or methods of construction;

 

            (d)        Encourage the erection of attractively de­signed permanent improvements appropriately located within the Property in order to achieve a harmonious appearance and function; and

 

            (e)        Promote generally the welfare and safety of the Owners, tenants and occupants of Building Sites;

 

Tab at 15 removedall to the end that a harmonious and attractive development may be accomplished and the health, comfort, safety, convenience and general welfare of Owners and of Declarant and its successors and assigns may be promoted and safeguarded;

 

                        NOW, THEREFORE, in consideration of the premises, the provisions hereinafter contained, and other good and valuable consid­eration, the receipt and sufficiency of which are hereby acknowledged, Declarant does hereby publish and declare that the following terms, covenants, conditions, restrictions, easements, reservations, uses, rights-­of-way, limitations, obligations and other provisions shall run with title to the Property, and shall be a burden and a benefit, binding and benefiting all parties having any right, title or interest in the Property and their heirs, personal representatives, successors and assigns.

                                                                       Article I

                                                                 DEFINITIONS

                        As used in this Declaration, unless the context otherwise requires, the following terms shall have the following meanings:

 

                        .1            "Architectural Review Committee" or "Committee" means the Architectural Review Committee provided for in Article VII of this Declaration.

 

                        .2            "Articles" or "Articles of Incorporation" means the articles of incorporation of the Association.

 

                        .3            "Assessment Lien" means the lien on a Building Site to secure assessments due the Association, as provided in Section 5.9 of this Declaration.

 

                        .4            "Assessment Notice" means a notice of a regular or special assessment given by the Board to an Owner pursuant to Section 5.3 or Section 5.4 of this Declaration.

 

                        .5            "Association" means Boardwalk Phase II Association, Inc., a Colorado nonprofit corporation, the Articles and Bylaws of which, as herein defined, along with this Declaration, shall govern the administration of the Project.

 

                        .6            "Building" means any single or multi-story structure constructed by an Owner on a Building Site for permanent occupancy for office, restaurant, or retail purposes.

 

                        .7            "Building Site" means each of those parcels of land, the size and dimensions of which are more particularly described herein, on which a Building has been constructed or is approved by the City of Fort Collins to be constructed.  During the Declarant Control Period a Building Site may also be established, or an existing Building Site may be modified, by an instrument in writing, executed, acknowledged and recorded by Declarant, which designates a plot of land as a Building Site for purposes of these covenants.  The initial Building Sites are described in Exhibit B attached hereto.

 

                        .8            "Building Site Equivalent" means an integer determined by (a) dividing the Floor Area contained in the Building or Buildings on a Building Site (or approved for construction on an Undeveloped Building Site) by 7,000, and (b) rounding the quotient of that division to the nearest whole number.

 

                        .9            "Bylaws" means the Bylaws of the Association.

 

                        .10          "Board of Directors" or "Board" means the governing body of the Association.

 

                        .11          "Common Area" means the Prop­erty exclusive of the Building Sites.  The Common Area includes but is not limited to private streets, loading zones, common parking areas and facili­ties (whether surface or underground), Perimeter Fences, if any, utility lines, connec­tions and related facilities serving two or more Building Sites, and any playgrounds, recreation areas and walkways outside Building Site boundaries.

 

                        .12          "Declarant" means BOULDER-LARIMER PROPERTIES, INC., a Colorado corporation, and any successor or assignee that it may specifically designate as Declarant.  Declarant specifi­cally reserves the right to designate multiple successor Declarants whose rights, powers and obligations may be limited to specific portions of the Property, to specific subject matters, or both, but no such partial transfer of Declarant's rights shall be deemed to include Declarant's power to amend this Declaration pursuant to Section 13.4 of this Declaration.

 

                        .13          "Declarant Control Period" means the period beginning on the date the Association is incorporated and ending on the earlier of (a) December 31, 1994, or (b) 120 days after Declarant (and any successor Declarant designated with respect to any part of the Property) ceases to own any Building Site.

 

                        .14          "Declaration" means this Declaration of Covenants, Conditions and Restrictions, as it may be amended from time to time.

 

                        .15          "First Mortgage" means a Mortgage having priority of record over all other recorded Mortgages.

 

                        .16          "First Mortgagee" means the Mortgagee under a First Mortgage.

 

                        .17          "Floor Area" means, with respect to the Building on any Building Site or with respect to any building approved by the City of Fort Collins for construction on an Undeveloped Building Site, the product of (a) the area of such Building Site in square feet and (b) the number of floors in such Building or proposed building.

 

                        .18          "Improvement" means any structure and appurten­ances thereto of every kind and type, including but not limited to buildings, parking areas, loading areas, storage areas, signs, fences, walls, hedges, landscaping, mass plantings, outbuildings, walkways, sprinkler systems, roads, driveways, exterior surfaces of any visible structure, air conditioning equipment, poles, signs or any other change in the Property from its natural state; provided, that the term "Improvement" does not include any Building.

 

                        .19          "Major Repairs" means repairs or restorations of Improvements costing in excess of $5,000, for which the Association is responsible but for which the Association has insuffi­cient capital or reserves.

 

                        .20          "Managing Agent" means the Person, if any, employed by the Board to perform management functions for the Association, the Property or both.

 

                        .21          "Map" means any map or plat of Boardwalk at the Landings Phase II which the Declarant may choose to record in the real property records of Larimer County, Colorado.  If recorded, the Map must contain:

tab set at 15

                        .1  The legal description of the Property and a survey thereof;

 

                        .2  Legal descriptions of the parcels of real property identified as Building Sites; and

 

                        .3  Legal descriptions of the parcels of real property identified as the Common Area.

 

removed tab set at 15The Map, if any, and any supplement(s) thereto, shall contain a statement of an architect, engineer or registered land surveyor certifying that the Map fully and accurately depicts the layout, measurements and location of all of the Building Sites and Improvements, if any, and the Building Site designations at time of recording.  Declarant hereby reserves unto itself, without the consent of any Owner being required, and reserves unto the Board, the right to amend the Map and supplement(s) thereto from time to time, in order to show additional Building Sites and to conform the Map to the actual locations, as constructed, of any of Buildings, Improvements, utility easements, access road easements and parking spaces.

 

                        In interpreting any provisions of this Declaration or the Bylaws, subsequent to deeds to or Mortgages of Building Sites, the actual location of a Building Site shall be deemed conclusively to be the property intended to be conveyed, reserved or encumbered, notwithstanding any minor deviations from the location of such Building Site or Lot as indicated on the Map, if any.

 

                        .22          "Mortgage" means any mortgage or deed of trust recorded in the real property records of Larimer County, Colorado, by which the interest of an Owner in a Building Site or any part thereof is encumbered.

 

                        .23          "Mortgagee" means any Person named as a mortgagee or beneficiary in any Mortgage or any successor to the interest of any such Person under such Mortgage; provided, that such Person shall be deemed an Owner and not a Mortgagee if such Person acquires title to the encumbered property through or in lieu of foreclosure.

 

                        .24          "Owner" means any Person who is a record owner (including Declarant and including contract sellers but excluding contract purchasers and Mortgagees) of a fee simple interest in any Building Site.

 

                        .25          "Party Wall" means any wall that is a structural component of two or more Buildings.

 

                        .26          "Perimeter Fence" means any fence or wall that separates any Common Area from a public street or right-of-way or from property outside of the Project.

 

                        .27          "Permittee" means any tenant, lessee, agent, employee, customer, patron, licensee or invitee of an Owner or of a tenant or lessee of an Owner.

 

                        .28          "Person" means an individual, corporation, partnership, association, trust or other legal entity.

 

                        .29          "Project" means all of the Property, Building Sites and Common Area, together with all Buildings and Improvements thereon.

 

                        .30          "Property" means the land described in Exhibit A.

 

                        .31          "Undeveloped Building Site" means any of those Building Sites described in Exhibit C attached hereto.  Any such Building Site will cease to be an Undeveloped Building Site as soon as (i) a certificate of occupancy is issued by the approp­riate governmental authority for the Building constructed on such Building Site, and (ii) either such Building Site is conveyed to an Owner other than Declarant or space in the Building on such Building Site is occupied under a written lease.

                                                                       Article II

                                                            THE ASSOCIATION

                        .1            General Purposes and Powers.  The Association, through the Board or the Managing Agent, shall perform functions, and hold and manage property, as provided in this Declaration so as to further the interests of Owners.  The Association shall have all powers necessary or desirable to effectuate such purposes.

 

                        .2            Board of Directors.  The affairs of the Associa­tion shall be managed by the Board of Directors, which may by resolution delegate any portion of its authority to an executive committee or to a Managing Agent for the Association.  There shall be not less than three (3) members of the Board of Directors.  The composition of the Board shall be determined as follows:

 

Tab inserted at 15                      .1              During the Declarant Control Period, the Board shall have three members (or such larger number as may be determined by Declarant in its sole discretion), each of whom shall be appointed by Declarant and none of whom need be an Owner or a representative of an Owner.

 

                      .2              After the Declarant Control Period, the Board shall have a number of members equal to the number of Building Site Equivalents in the Project from time to time; the Board shall amend the Bylaws (and the Bylaws shall in any event be deemed to have been amended) from time to time to specify the number of Board members so determined.  Each Owner who is a natural person shall have the right to be a member of the Board, and each Owner who is other than a natural person, or whose Building Site consists of more than one Building Site Equivalent, shall have the right to designate one individual for each Building Site Equivalent to represent such Owner on the Board.  In the case of a Building Site owned by two or more individuals or by an individual and another Person, the Persons owning such Building Site shall designate one individual per Building Site Equivalent to represent them on the Board.

 

                      .3              Except in the case of members of the Board appointed by Declarant pursuant to Subsection 2.2.1 above, no Owner may participate in meetings of the Board until the meeting following such Owner's delivery to the Board of (a) evidence reasonably satisfactory to the Board of such Owner's ownership of a Building Site, and (b) if such Owner is other than a natural person or has the right to more than a single seat on the Board, a designation in writing of the individual or individuals who are to represent such Owner on the Board.

 

                      .4              Any Person who ceases, voluntarily or involun­tarily, to be an Owner shall forthwith notify the Board of that fact, and neither such Owner nor his representative, if any, shall thereafter participate in any meeting or action of the Board.

 

Tab at 15 removed                        .3            Amplification by Bylaws.  The purposes and powers of the Association and the rights and obligations with respect to Owners set forth in this Declaration may be amplified by the Bylaws of the Association.

 

                        .4            Management and Maintenance of Common Area.  Subject to the rights of Declarant and other Owners as set forth in this Declaration, the Association shall be exclusively responsible for the management, control, maintenance, repair, replacement and improvement of the Common Area (including the private streets, walkways, and parking areas and including facilities, furnishings and equipment related thereto) and shall keep the same in good, clean, attractive and sanitary condition, order and repair.  The Association shall maintain in a proper, first class manner all Improvements constituting part of the Common Area.

 

                        .5            Maintenance Reserves.  The Association shall establish and maintain, out of the annual assessments, an adequate reserve for the periodic maintenance, repair and replacement of Improvements on the Common Area.  The funds so reserved shall be deposited in a bank account other than the Association's regular operating account, and no withdrawal from the reserve account shall be made without the approval of the Board.

 

                        .6            Driveways and Parking Areas.  The Association shall be responsible for the maintenance, repair and restoration of any driveway or parking area leading from a street or the Common Area to a Building or Building Site, notwithstanding that some part of the driveway or parking area may be located on a Building Site.  Such maintenance shall include snow removal as needed.

 

                        .7            Undeveloped Building Sites.  The Association shall be responsible for providing routine maintenance to and management of the Undeveloped Building Sites.  The Undeveloped Building sites shall be maintained in a good, clean, attractive, proper and first-class manner.

 

                        .8            Entry onto Building Sites.  Solely for the purpose of performing the duties referred to herein, the Association, through its duly authorized agents or employees, shall have the right, after reasonable notice to the Owner, to enter upon any Building Site at reasonable hours.

 

                        .9            Recovery from Owners.  If the need for mainte­nance, repair or replacement affecting the Common Area or any Unimproved Building Site, or any part of either, results from the negligent or willful act or omission of an Owner or an Owner's Permittee, then the expenses incurred by the Association for such maintenance, repair or replacement shall be assessed against such Owner and shall be payable within fifteen (15) days after the Association gives written notice to the Owner of the amount due.  Any Owner subject to such an assessment may, by written notice to the Association within such 15‑day period, request a hearing before the Board to contest the finding of negligence, willful act or omission.  If such a hearing has been timely requested, no action to enforce the assessment shall be taken until the hearing has been held and the Board has announced its determination.

 

                        .10          Labor and Services.  The Association may (i) employ, directly or through a Managing Agent, such personnel as the Association shall determine to be necessary or desirable for the proper operation of the Project; (ii) obtain and pay for such legal and accounting services as it determines to be neces­sary or desirable in connection with the operation of the Project or the enforcement of this Declaration; and (iii) arrange with others to furnish lighting, heating, water, trash collection, sewer service and other common services to the Owners.

 

                        .11          Special Services.  The Association may, at the request of any Owner, undertake any activity, function or service for the benefit of such Owner on a self-supporting or special assessment basis.  Such activities, functions or services may include, without limitation, the provision of police or similar security services and janitorial or cleaning service for individual Buildings.  In the case of utility or other services supporting two or more but fewer than all of the Building Sites, the Association shall arrange for billings to be submitted to the Association and shall assess the amounts billed to the Owners of the Building Sites supported by such services in proportion to the Floor Area associated with each such Building Site.

 

                        .12          Property of the Association.  In addition to the Common Area, the Association may purchase, acquire, hold or lease real property and tangible and intangible personal property and may dispose of the same by sale or otherwise.

 

                        .13          Implied Rights.  The Association shall have and may exercise any right or privilege given to it expressly by this Declaration or the Articles or Bylaws, or reasonably to be implied by law, or which may be necessary or desirable to fulfill its duties, obligations, rights or privileges.

 

                        .14          Right to Enforce.  The Association may, to the extent permitted by law, take judicial action against any Owner to enforce compliance with this Declaration, the Articles, the Bylaws, and such rules and regulations as may be adopted by the Association and to obtain damages or such other relief as may be appropriate in the circumstances.  The Board shall also have the power to assess such monetary fines as it may deem reasonable for an Owner's infraction of any of the provisions of this Declaration, the Articles, the Bylaws or any rule or regulation of the Association.  Any Owner against whom a monetary fine is assessed may, within fifteen days after the Board has given notice of the proposed fine, request a hearing before the Board to contest the asserted infraction, and collection of the proposed fine shall in that event be stayed pending such hearing and the Board's announcement of its decision.

                                                                      Article III

                                                 RIGHTS IN THE ASSOCIATION

                        .1            Membership and Inseparability of Rights.  Every Owner of a Building Site shall be a member of the Association and shall remain a member so long as such Owner owns a Building Site.  No Person who is not an Owner shall be a member of the Associa­tion.  Membership in the Association shall be appurtenant to, and may not be separated from, ownership of a Building Site.  Upon the transfer of a Building Site the membership in the Association and all rights of the transferor Owner with respect to the Common Area and any facilities located thereon to which ownership of such Building Site relates shall automatically transfer to the transferee Owner.  Each Owner shall be entitled automatically to the benefits and subject to the burdens relating to membership in the Association appurtenant.  If fee simple title to a Building Site is held by more than one Person, each such Person shall be a member of the Association, but the aggregate voting rights of such Persons shall be based on the area of such Building Site as provided in Section 3.2, without regard to the number of Persons sharing such ownership.

 

                        .2            Voting.  The Owner (or Owners collectively, if more than one) of each Building Site shall be entitled to a fractional vote, the numerator of which shall be the Floor Area within the Building on such Building Site, or, in the case of an Undeveloped Building Site, the Floor Area approved by the City of Fort Collins for inclusion in a building or buildings to be constructed on such Undeveloped Building Site, and the denom­inator of which shall be the total Floor Area of all Buildings existing, or approved by the City of Fort Collins to be constructed, in the Project.  The initial fractional vote allocated to each Building or Undeveloped Building Site is as set forth on Exhibit D attached hereto.  However, such fractional votes may be modified as Buildings are completed on Undeveloped Building Sites, to reflect the actual Floor Area of such Buildings.

 

                        .3            Changes in Undeveloped Building Sites.  The Owner of any Undeveloped Building Site may request that the City of Fort Collins approve (a) construction of a Building on such Undeveloped Building site having a Floor Area that is larger or smaller than that previously allocated to such Building Site, or (b) the reallocation, combination or division of such Undeveloped Building Site into one or more different Undeveloped Building Sites, upon which Buildings different from those currently approved may be constructed; provided, that no such request for approval may be made during the Declarant Control Period without the prior written approval of Declarant.  If and to the extent such approval is finally granted by the City of Fort Collins, the Owner obtaining such approval shall forthwith notify the Association of that fact, and the fractional vote of such Owner shall thereupon be adjusted accordingly.

 

                        .4            Owners' Addresses for Notices.  If the Owner or Owners of a Building Site have notified the Association by registered or certified mail (return receipt requested) of the address or addresses to which notices are to be given, any notice or other document required or permitted to be given by the Association to such Owner or Owners shall be delivered, or shall be mailed by first class, registered or certified mail, to the address or addresses specified by such Owner(s).  Otherwise, any such notice or other document may be delivered or mailed to the address of the Building Site shown in the Association's records as being owned by such Owner(s).  Any notice or other written instrument given by the Association in accordance with the foregoing will be deemed to have been given on the date that it is delivered or mailed.

                                                                      Article IV

                                          COMMON AREA RIGHTS AND USAGE

                        .1            Rights and Easements in the Common Area.  Each Owner shall have the non-exclusive right and easement to use and enjoy the Common Area, in common with Declarant and the other Owners and their respective Permittees, which right and easement shall be appurtenant to and shall pass with title to such Owner's Building Site.

 

                        .2            Easements for Access.  Each Owner and his Permit­tees shall have, in common with all other Owners and their Permittees, non-exclusive rights and easements for ingress and egress over, across and upon the Common Area, for the purpose of access to his Building Site and parking areas and other public ways for both pedestrian and vehicular travel, which rights and easements shall be appurtenant to and pass with the transfer of title to an Owner's Building Site.

 

                        .3            Additional Easements, Licenses and Permits.  The Association may grant easements, licenses or permits affecting the Common Area, with or without charge, for utilities, roads and other purposes reasonably necessary or useful for the proper maintenance or operation of the Common Area or any Building Site; provided, that no such easement, license or permit shall be granted during the Declarant Control Period without the prior written approval of Declarant, nor shall any easement, license or permit that would unreasonably impair the rights or interests of any Owner be granted at any time.

 

                        .4            Limitations and Restrictions.  Notwithstanding anything to the contrary contained in Sections 4.1, 4.2 and 4.3, all such rights and easements shall be consistent with (a) the covenants, conditions, restrictions, reservations and other provisions con­tained in this Declaration, (b) the right of the Declarant, during the Declarant Control Period, and thereafter of the Association, to assign specific parking spaces to an Owner on an equitable and reasonable basis for the exclusive use of such Owner and his Permittees, and (c) the right of the Association to adopt, from time to time, reasonable rules and regula­tions concerning pedestrian and vehicular traffic and travel upon, in, under and across the Project.

 

                        .5            Association as Owner of the Common Area.  Not later than the end of the Declarant Control Period, Declarant will convey the Common Area to the Association, subject to non-delinquent real property taxes but free and clear of any other liens securing monetary obligations.

                                                                       Article V

                                                                ASSESSMENTS

                        .1            Annual Budget.  Within 60 days after the initial members of the Board have been appointed, the Board shall adopt, and shall distribute to the Owners, a budget for the expenses expected to be incurred by the Association during the remainder of the current calendar year in carrying out its duties under this Declaration.  Thereafter, not later than November 1 of each year, the Board shall adopt and distribute to the Owners a corresponding budget for the next calendar year.

 

                        .2            Regular Assessments.  Concurrently with the adoption of each budget the Board shall determine the level of assessments that will be necessary to cover the budgeted expenses and to make any appropriate addition to the reserves of the Association.  The amount so determined shall be allocated among the Owners in proportion to the actual or anticipated Floor Areas of the Buildings existing or to be constructed on their respective Building Sites, in the same manner as is provided with respect to voting rights in the Association under  Section 3.2 above, except that for purposes of this section (a) no change in such proportion that may occur during a given calendar year shall be effective until January 1 of the next calendar year, and (b) in calculating both the numerator and the denominator of the fraction referred to in Section 3.2, 75% of the Floor Area associated with Buildings yet to be constructed on Undeveloped Building Sites shall be disregarded.

 

                        .3            Notice to Owners.  Concurrently with the distribution of the budget for each year, the Board shall notify each Owner of the amount assessed against each Building Site in the Project for such year, and of the amount of the monthly payment required to discharge such assessment.  Such notice shall set forth the basis on which the aggregate amount of such assess­ments was allocated among the Building Sites pursuant to Section 5.2 above.

 

                        .4            Special Assessments.  In addition to special assessments made pursuant to Sections 2.9 and 2.11 above, the Board may, upon the affirmative vote of two-thirds of its members, make special assessments from time to time to pay for Major Repairs or to cover other unanticipated shortfalls in the revenues of the Association.  Except for special assessments made pursuant to Sections 2.9 or 2.11 (which shall be payable solely by the Owner or Owners affected), any such special assess­ment shall be allocated among the various Building Sites in the manner provided in Section 5.2 above.  The Board shall notify each affected Owner forthwith of the amount, payment terms and basis for allocation of any such assessment.

 

                        .5            Deposit for Reserves.  The Association may require each Owner, other than Declarant, to deposit with the Association an amount not greater than six times the amount of the estimated monthly installment of the regular annual assess­ment, to be held, without interest, by the Association as a reserve for expenses.  No such deposit shall excuse the regular monthly payment of the annual assessment.  The Association shall have no duty to refund any such deposit when the Building Site to which it relates is transferred, but the Owner of such Building Site may, if so provided in any agreement relating to the transfer, recover an amount equal to such deposit from his transferee.

 

                        .6            Payment Terms, Late Charges, Interest and Collection Costs.  Regular assessments shall be payable in monthly installments in advance, without notice, on the first day of each month during the year to which they relate.  Special assessments shall be payable in a lump sum or in installments over such period of time as the Board may determine and specify in the applicable Assessment Notice.  All assessments shall be payable to the Association at its office.  Any assessment or installment of an assessment not paid within five days after the date due shall be subject to a late charge of five percent of the amount due or $50.00, whichever is greater, and any such assessment or installment not paid within ten days after the date due shall, in addition to such late charge, bear interest from the date due until paid at the higher of (i) 18% per annum, or (ii) five percentage points per annum above the publicly-announced prime interest rate of First Interstate Bank of Denver, N.A., as of the date such Assessment was due.

 

                        .7            Personal Obligation.  Each Owner, by accepting title to a Building Site, shall be personally liable, and shall be deemed to have agreed, (a) to pay when due all amounts assessed against each Building Site owned by such Owner, as specified in any Assessment Notice issued while such Owner was an Owner of record of such Building Site, and (b) if any such amount is not paid when due, to pay late charges and interest on the delinquent amount as provided in Section 5.6, together with all costs of any fore­closure or other collection action taken by the Association, including attorneys' fees.  In the case of a Building Site owned by two or more Owners, such Owners shall be jointly and severally liable for payment of all such amounts.  Nothing in this section shall preclude an Owner from contracting with a tenant or other third party for such party's assumption of all or any part of such Owner's liability for assessments, but no such contract shall relieve such Owner of direct and primary liability to the Association for payment of the amounts referred to in this section.

 

                        .8            Remedies for Nonpayment.  If any assessment or installment of an assessment is not paid within ten days after the date due, the Board may declare the entire assessment due and payable in full, if the assessment was originally payable in installments, and may, with or without foreclosing the lien provided for in Section 5.9, institute in the name of the Association a civil action against the defaulting Owner or Owners to collect the assessment, together with late charges, interest and collection costs as provided above.  The Board may also suspend the voting rights of such Owner or Owners in the Association and on the Board until such time as all delinquent amounts are paid.

 

                        .9            Lien for Assessments.  Each assessment levied by the Association against a Building Site, together with any late charges, interest and collection costs that may subsequently relate to such assessment, shall, from the date of issuance of the applicable Assessment Notice, automatically be secured by a continuing Assessment Lien on such Building Site.  Any such Assessment Lien shall be subject to, and may be enforced in accordance with, the provisions of this section.

 

Tab inserted at 15                      .1              Any such Assessment Lien shall be senior and superior in priority to all other liens and encumbrances affecting such Building Site except (a) a lien securing tax and related obligations due any governmental taxing authority, to the extent such tax-related lien is legally perfected without recordation or filing of notice in any public records or is perfected by such recordation or filing prior to the issuance of the Assessment Notice that gave rise to such Assessment Lien, and (b) sums secured by a First Mortgage that was recorded prior to the recording of notice of the Assessment Lien in accordance with this section, including advances secured by the terms of such First Mortgage which the Mortgagee thereunder became obli­gated to make prior to the recording of notice of the Assessment Lien.

 

                      .2              If any assessment or installment of an assessment is not paid when due, the Association may sign and record, in the real property records of Larimer County, Colorado, a notice of such Assessment Lien, which notice shall refer to this Declaration and shall state the date and the amount of the delinquent Assessment, the name of the delinquent Owner, the name and address of the Association and the legal descrip­tion of the Building Site against which the delinquent Assessment was made.

 

                      .3              Any Assessment Lien may be foreclosed in accordance with the laws and rules of court applicable to foreclosure of mortgages on real property.

 

                      .4              If a Mortgagee has given notice to the Association pursuant to Section 13.7 below and has requested that the Association notify such Mortgagee of any default by the Owner(s) of such Building Site(s) in the payment of assessments due the Association, then the Association (a) shall accept any tender by such Mortgagee of the delin­quent amount, and (b) shall not take action to foreclose an Assessment Lien against such Building Site(s) unless the assessment remains delinquent for thirty days after the Association has notified such Mortgagee of the delinquency.

 

Tab at 15 removed                        .10          Borrowing by Association.  If an Owner has failed to pay a special assessment when due, or if the time for payment of a regular annual assessment has been accelerated as a result of an Owner's failure to pay required installments, the Board may, in addition to taking the other actions provided for in this article, authorize the Association to borrow an amount not exceeding the amount of the delinquent assessment, either from another Owner who is willing to loan such amount or from a third party.  Any such borrowing shall be on such terms as may be approved by the Board, which may include assignment to the lender of the Association's lien and other rights to enforce payment of the delinquent assessment.  Any Person who loans funds to the Association pursuant to this section and receives an assignment of the Association's rights shall, to the extent permitted by law, have all of the rights that would be available to a holder in due course of a negotiable instrument evidencing a debt equal to the amount of the delinquent assessment, and no claim, offset or defense that the delinquent Owner may have as against the Association shall be valid as against such Person.

 

                        .11          Liability of Transferees.  No transferee of a Building Site shall be personally liable for any assessment levied against such Building Site prior to such transferee's acquisition of title, but unless such transferee acquires title by foreclosure of a lien senior to the Assessment Lien securing such assessment, such transferee shall take title subject to such Assessment Lien and to the rights of the Association to enforce such Assessment Lien against such Building Site.

 

                        .12          Certificate as to Status of Assessments.  Upon request in writing by the Owner or a prospective purchaser or Mortgagee of any Building Site, and payment of such reasonable charge as may be determined from time to time by the Board, the Association shall issue a certificate setting forth (a) the amount of any unpaid assessments, late charges, interest and collection costs then secured by an Assessment Lien against such Building Site, (b) the amount of the current monthly installment of the regular annual assessment against such Building Site and the dates on which such installments are due, (c) the amount and due date of any special assessment that has been levied against such Building Site, (d) the amount of the deposit, if any, held by the Association with respect to such Building Site pursuant to Section 5.5 above, and (e) any other information deemed proper by the Board.  Any such certificate shall be binding on the Association unless it is obvious on the face of such certificate that it is erroneous.

                                                                      Article VI

                                                                  EASEMENTS

                        .1            Easements of Record.  In addition to any ease­ments or rights-of-way of recorded prior to this Declaration, the Property shall be subject to the easements and rights-of-way provided for in this Declaration.

 

                        .2            Easement for Encroachments.  All portions of the Project shall be subject to an easement for minor encroachments created by construction and overhangs as designed or constructed by Declarant, or Declarant's predecessor in interest, by settling or shifting of any Building or Improvement, or by reconstruction of any Building or Improvement following its partial or total destruction by fire or other casualty.  Such easement shall exist so long as the encroachment exists.

 

                        .3  Party Wall Easements.  Reciprocal easements are hereby established for the construction, existence, repair, maintenance and rebuilding of Party Walls between Buildings and other improvements constructed or to be constructed on any Building Site, which reciprocal easements shall be for the mutual benefit of the Owners of the Building Sites affected by any such Party Wall.

 

                        .4            Utility Easement.  There is hereby created for the benefit of Declarant and the Association a blanket easement upon, across, over, in and under all of the Property, for the installation, replacement, repair and maintenance of utility lines, including but not limited to water, sewer, gas, telephone, electric service and a master television antenna system, except that such easement shall not permit the installation of water, sewer or gas facilities within the Building Sites described on Exhibit B.  By virtue of this easement, companies providing electrical and telephone services may erect and maintain necessary equipment on the Property and to affix and maintain electrical and telephone wires, circuits and conduits on, above and across the roofs and exterior walls of the Buildings.  Notwithstanding anything to the contrary contained in this article, however, no such utility lines or facilities may be installed or relocated on the Property during the Declarant Control Period without the prior written approval of Declarant, nor shall such lines or facilities be installed in any manner prohibited by the provisions of Article VIII below.

 

                        .5            Emergency Easement.  A blanket easement is hereby granted to law enforcement, fire protection, ambulance and other emergency personnel to enter upon all streets, parking areas and upon the Common Area in the proper performance of their duties.

 

                        .6            Easements for Maintenance.  An easement upon, across, over, in and under the Common Area and the Undeveloped Building Sites is hereby granted to the Association and its designees, with the right to make such use of the Common Area and the Undeveloped Building Sites as may be necessary or appropriate to perform the duties and functions of the Association under this Declaration, including the right to construct and maintain on the Common Area maintenance and storage facilities for use by the Association.  The Association shall have an easement on such parts of each Building Site as may be necessary or appropriate for it to perform its obligations and exercise its rights with respect to such Building Site in accordance with the provisions of this Declaration.  Damage to any part of any Building Site or Building resulting from the maintenance, repair, emergency repair or replacement of any of the Common Area at the instance of the Association, shall be a common expense of all of the Owners.  No diminution or abatement of assessments shall be claimed or allowed for inconvenience or expense resulting from disruption caused by repairs or improve­ments made by the Association or from action taken to comply with any law, ordinance or order of any governmental authority.  In addition to the easement granted in this section to the Associa­tion, each Owner is hereby granted an easement to enter adjacent Building Sites and the Common Area, on reasonable notice to the Owners of such adjacent Building Sites or to the Association, as the case may be, for the purpose of maintaining and repairing such Owner's Building Site.  Any damage to an adjacent Building Site or the Common Area resulting from the exercise of such easement shall be repaired forthwith by the Owner performing the maintenance or repair.

 

                        .7            Easements for Drainage.  An easement is hereby granted to the Association and its designees upon, across, over, in and under any portion of the Property for the purpose of changing, correcting or otherwise modifying the grade of drainage channels of the Property so as to improve the drainage of water on the Property; provided, however, that such modifications shall not unreasonably disturb improvements on a Building Site, or impair Declarant's ability to develop undeveloped portions of the Property.

 

                        .8            Easements for Restorations and Repairs.  Each Owner and his contractors and agents, and the Association and its contractors, officers, agents and employees, shall have an easement onto all adjoining Building Sites as is reasonably necessary for the restoration and repair of the Building on such Owner's Building Site; provided, however, that (a) all reasonable precautions shall be taken by the Association or the restoring Owner, as the case may be, to minimize the effect of such repair or reconstruction work on adjoining Building Sites and the Common Area, and (b) such Owner shall immediately repair, and be liable for any damage caused by any failure to repair immediately, any damage to such adjoining Building Site or the improvements or other property thereon resulting from the exercise of this easement.

 

                        .9            Declarant's Rights Incident to Construction.  Declarant, for itself and for any purchaser of an Undeveloped Building Site, hereby retains and is granted a right and easement of ingress and egress over, in, upon, under and across the Common Area and the right to store materials thereon and to make such other use thereof as may be reasonably necessary or incidental to the construction of improvements on the Undeveloped Building Sites, provided, that no such rights shall be exercised by Declarant or any purchaser of an Undeveloped Building Site in such a way as to interfere unreasonably with the occupancy, use or enjoyment of a Building Site by the Owner of such Building Site and the Permittees of such Owner.  Nothing in this section shall be construed to exempt Declarant from the provisions of Section 2.9.

 

                        .10          Easements Deemed Created.  Each conveyance of a Building Site, whether by Declarant or otherwise, and the conveyance of the Common Area by Declarant to the Association, shall be construed to grant and reserve the easements provided for in this Article VI, whether or not the instrument of conveyance refers to such easements or to this Article VI.

                                                                     Article VII

                                       ARCHITECTURAL REVIEW COMMITTEE

                        .1            Committee.  An Architectural Review Committee consisting of three or more persons may be appointed by the Board and shall be responsible to the Board.  Unless and until the Board has appointed an Architectural Review Committee, the Board shall exercise all of the powers and perform all of the duties of that committee, and references in this Declaration to the "Architectural Review Committee" or the "Committee" shall be construed as references to the Board acting as the Architectural Review Committee.

 

                        .2            Purpose.  Subject to the rights of the Declarant during the Declarant Control Period, the Committee shall regulate the location of the Undeveloped Building Sites, the external design and appearance of Buildings and Improvements and the construction of Buildings and Improvements, so as to (a) promote those qualities in the environment that bring value to the Project and the Building Sites, and (b) foster the attractiveness and functional utility of the Project as a commercial develop­ment, including a harmonious relationship among structure, vegetation and topography.  Notwithstanding the foregoing, during the Declarant Control Period the Declarant shall have the exclusive power to regulate the location of Undeveloped Building Sites and the design, location and construc­tion of any Building or other improvement on any Undeveloped Building Site, and neither the Association nor the Committee shall have any authority over or responsibility for such regulation.

 

                        .3            Aesthetic Considerations.  No Improvements, buildings, projections or other structures, and no walls, patios, planters or other similar items shall be commenced, improved, constructed, maintained, erected, altered (as, for example, by painting or staining the exterior of any Building or glazing or tinting of any glass surface) or remodeled, nor shall any grading, excavation, tree removal, planting and/or exterior addition, change or alteration thereon be made, until plans and specifications accurately showing the nature, kind, shape, dimensions, materials, color (including color of paint or stain) and locations of the same shall have been submitted to and approved in writing by the Committee.  The Committee shall also have the right to review and approve landscaping plans.

 

                        .4            Building Standards.  Construction or alteration of all Buildings shall meet the following standards:

 

Tab inserted at 15                      .1              Any Building shall be of fire resistant construc­tion.  "Wood frame residential" type construction shall not be permitted.

 

                      .2              No heating, air conditioning, electrical or other equipment or apparatus shall be installed on the roof of any Building or structure or hung on the exterior walls unless the same is screened, covered and installed in a manner approved in writing by the Committee.

 

                      .3              All Buildings shall be constructed with exterior finish materials comparable to those used in the existing Buildings, or such other materials as may have been approved in writing by the Committee.  The Committee may, in its sole discretion, approve or disapprove all exterior finish materials.

 

Tab at 15 removed                        .5            Criteria for Review.  The Committee shall review all applications for alterations or improvements, considering:

 

Tab inserted at 15                      .1              the purpose of such design review as provided in this Declaration;

 

                      .2              the harmony, integrity and conformity of exterior design, color, and location relating to surrounding structures and topography;

 

                      .3              relation of the proposed improvements to the natural topography, grade and finished ground elevation;

 

                      .4              relation of the structure to that of neigh­boring structures and to natural features of the Property;

 

                      .5              relation to the overall community design of the Project;

 

                      .6              the character of the exterior materials, and the quality of the exterior workmanship to be employed;

 

                      .7              conformity of the plans and specifications to the purpose and general plan and intent of this Declaration; and

 

                      .8              maintenance responsibilities and duties of the Association as specified in this Declaration.

 

Tab at 15 removedThe Committee shall not arbitrarily or unreasonably withhold its approval of proposed improvements or alterations.  The Committee may, however, condition its approval of proposals or plans and specifications for any improvement (1) upon the applicant's furnishing the Association with security acceptable to the Association against any mechanic's lien or other encumbrance which may be recorded against the Property as a result of such work; (2) on such changes therein as it deems appropriate; (3) upon the agreement by the applicant to grant appropriate easements to the Association for maintenance purposes, or (4) upon the agreement of the applicant to reimburse the Association for the costs of maintenance, or all of the above.  Additionally, the Committee may require submission of additional plans and specifications or other information prior to approving or disapproving any proposal.

 

                        .6            Review Procedures.  The Committee shall adopt rules or guidelines setting forth procedures for the submission and review of plans for improvements or alterations.  Such procedures shall be consistent with the following:

 

Tab inserted at 15                      .1              The Committee may require that each application for approval be accompanied by a reasonable fee, which may be uniform or may be based upon any other reasonable criteria such as the estimated cost of the construction, alteration or addition contemplated.

 

                      .2              The Committee may require such detail in plans and specifications submitted for its review as it deems proper, including, without limitation, floor plans, site plans, drainage plans, elevation drawings and descriptions or samples of exterior material and colors.  Review of any plan submitted for approval may be postponed until the Committee has received any plans, specifica­tions or other materials referred to in this subsection.

 

                      .3              Decisions of the Committee and the reasons for the decisions shall be transmitted to the applicant at the address set forth in the application.  If the Committee fails to approve or disapprove such plans and specifications within 60 days after they have been submitted, then such plans and specifications shall be deemed to have been approved as submitted; provided, that for purposes of this subsection, such plans and specifications shall not be deemed to have been submitted until any additional informa­tion or detail requested by the Committee has been received by the Committee.

 

                      .4              In the case of a decision made by the Committee (as opposed to the Board acting as the Committee), the applicant may appeal an adverse decision to the Board, which may reverse or modify such decision by a two-thirds (2/3) vote of those directors present and voting at a meeting at which a quorum is present.

 

Tab at 15 removed                        .7            Compliance with Legal Requirements.  Approval by the Committee of any proposed alteration or improvement shall not be construed as a determination that the proposed work complies with the provisions of any building or zoning code or other governmental requirement.  The Owner proposing to undertake such construction or alteration shall be solely responsible for complying with all applicable governmental requirements and obtaining all necessary permits and approvals, and shall submit evidence of such compliance to the Committee on request.

 

                        .8            Diligence in Completion.  After obtaining approval by the Committee and satisfying all applicable govern­mental requirements, the Owner proposing any alteration or improvement shall proceed diligently with construction and shall notify the Committee of the completion of construction within ten days after such completion.

 

                        .9            Noncompliance.  The Committee shall have power to enforce compliance with this Article VII in accordance with the following provisions:

 

Tab inserted at 15                      .1              The Committee may request that the Board exercise its right to impose sanctions for violations of this Declaration and other rules and regulations of the Association, and, acting in the name of the Association, may apply to any court of competent jurisdiction injunctive or other equitable relief against any Owner who undertakes or threatens to undertake any alteration or improvement that has not been approved by the Committee.

 

                      .2              With the approval of the Board, the Committee may, at the initial cost of the Association, take such action as is reasonably necessary to remedy any noncom­pliance.  Upon completion of any such action, the Committee shall notify the Owner responsible for the noncompliance of the cost (including attorneys' fees and other professional fees, if any) of the remedial action, and such Owner shall reimburse the Association for such cost within 15 days after the date of such notice.  If such Owner fails to make such reimbursement within such 15‑day period, the Committee shall notify the Board of such failure, and the Board shall assess such cost against all Building Sites owned by such Owner in the manner and with the effect specified in Section 2.9 above.

 

                      .3              The Committee or its duly authorized representa­tive may at any time inspect any improvement for which approval of plans is required, except that the Committee's right to inspect improvements or alterations for which plans have been submitted and approved shall terminate 180 days after completion of such improvements or altera­tions.  The Committee's right to make inspections shall not terminate pursuant to this subsection if plans for such improvements or alterations were not approved by the Committee.

 

                      .4              If, as a result of an inspection conducted pursuant to Subsection 7.9.3, the Committee finds that an improvement or alteration was done without obtaining the Committee's approval or was not done in substantial compliance with plans approved by the Committee, it shall notify the Owner in writing of the failure to comply, specifying the particulars of noncompliance.

 

                      .5              If the Owner disputes the Committee's determina­tion of noncompliance, he may, within 30 days after the date of the Committee's notice, request a hearing before the Board.  If such a hearing has been timely requested, no action to enforce compliance shall be taken until the hearing has been held and the Board has announced its determination.

 

                      .6              Any Owner who is determined to have made altera­tions or improvements in violation of the provisions of this article shall remedy such violation within 30 days after the Committee has given notice of such violation or, if such Owner has requested a hearing before the Board pursuant to Subsection 7.9.5, within 30 days after the date of any notice that the Board has found such violation to exist.

 

                      .7              If for any reason the Committee fails to notify an Owner of noncompliance with previously submitted and approved plans within 180 days after the Committee has received written notice of completion from the Owner, the alteration or improvement shall be deemed, for purpose of this Section 7.9, to comply with the approved plans.

 

Tab at 15 removed                        .10          Variances.  The Committee shall have power to authorize variances from compliance with any of the architectural provisions of this Declaration, including restrictions on size, floor area or placement of structures, or similar restric­tions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental considerations may require.  Any such variance must be evidenced by a document signed by a majority of the members of the Committee and recorded in the records of the Clerk and Recorder of Larimer County, Colorado.  The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular property and particular provision hereof covered by the variance, nor shall any such variance limit any Owner's independent obligation to comply with all applicable governmental requirements.

 

                        .11          Approvals Set no Precedents.  The approval by the Committee of any plans, specifications, drawings or other proposal for any alteration or improvement shall not constitute approval of, or require the Committee to approve, any similar plans, specifications, drawings or other proposal pending concurrently or subsequently submitted for approval.

 

                        .12          Meetings.  The Committee shall meet from time to time as necessary to perform its duties hereunder, and shall meet whenever instructed by the Board to do so.  The quorum for any meeting of the Committee shall be a simple majority of the members of the Committee.  The Committee may from time to time by unanimous resolution designate a representative (who may, but need not, be one of its members) to take any action or perform any duties on behalf of the Committee, except that the Committee's power to grant variances pursuant to Section 7.10 may not be so delegated.  In the absence of such a designation, the vote of a majority of the members of the Committee at a meeting at which a quorum is present, or the unanimous written consent of the members of the Committee taken in lieu of a meeting, shall constitute the act of the Committee.

 

                        .13          Compensation of Members.  The members of the Committee shall receive no compensation for their services as such, other than reimbursement for actual expenses incurred by them in the performance of their duties hereunder.  Any represen­tative designated pursuant to Section 7.11 may be compensated in such manner and amount as may be approved by the Board.

 

                        .14          Address.  Unless the Committee shall otherwise specify by notice to all Owners, all requests for approval under this Article VII shall be submitted in person or by registered or certified mail to the principal office of the Association, directed to the attention of the Committee.

                                                                    Article VIII

                                                               RESTRICTIONS

                        .1            Building Sites to be Maintained.  Each Building Site at all times shall be kept in a clean, sightly, and orderly condition.  No trash, litter, junk, boxes, containers, bottles, cans, implements, machinery, lumber, or other building materials shall be permitted to remain exposed upon any Building Site so that the same are visible from any neighboring Building Site, from the Common Area or from any public or private street, except as necessary during periods of construction.

 

                        .2            Owners' Duty of Maintenance and Repair.  Except for routine maintenance provided by the Association to the Undeveloped Building Sites, the maintenance and repair of the exterior and interior of each Building and Building Site shall be the sole responsibility of the Owner thereof.  If any Owner fails to maintain his Building Site in accordance with the provisions of this article, the Board may issue a notice to such Owner, specifying the nature of such failure and the time within which it must be corrected, and, if the required work is not completed within the time specified in such notice, may cause such work to be done at the initial expense of the Association.  Upon comple­tion of any work, the Board shall notify the Owner responsible for the failure to maintain of the cost (including attorneys' fees and other professional fees, if any) of the remedial action, and such Owner shall reimburse the Association for such cost within 15 days after the date of such notice.  If such Owner fails to make such reimbursement within such 15‑day period, the Board shall assess such cost against the Building Site on which the work was done, in the manner and with the effect specified in Section 2.9 above.

 

                        .3            Use of Common Area.  No Owner shall obstruct the Common Area, keep or store anything on any part of the Common Area, without the approval of the Association.  Nothing shall be altered on, constructed in or removed from the Common Area by any Owner without the approval of the Association.

 

                        .4            Zoning Compliance.  No Building shall be used for residential, manufacturing or industrial purposes, or for any other purpose prohibited by applicable zoning or similar land use regulations.

 

                        .5            Garbage and Refuse Disposal.  No garbage, refuse, rub­bish, or cuttings shall be deposited on any street, or on any Building Site unless placed in a suitable container suitably located, solely for the purpose of garbage pickup.  All equip­ment for the storage or disposal of such materials shall be kept in clean and sanitary condition, and shall be screened by adequate planting or fencing so as to conceal them from public view.

 

                        .6            Drainage.  Except with the prior written permis­sion of the Board, no Owner shall alter or obstruct any drainage area, easement or swale constructed on the Property by Declarant or by Declarant's predecessors in interest.

 

                        .7            No Imperiling of Insurance.  Neither any Owner nor any Owner's Permittees shall do anything or cause anything to be done or to be kept in or on the Project which might or would result in an increase in the insurance premiums paid by the Association pursuant to this Declaration, or which might cause cancellation of any such insurance.

 

                        .8            No Violation of Law.  Neither any Owner nor any Owner's Permittees shall use any portion of the Project for any purpose or activity that violates any statute, ordinance, regulation, permit or other validly imposed requirement of any governmental body.

 

                        .9            Underground Electric Lines.  All electric, television, radio, and telephone line installations and connections from any property line of a Building Site to a Building or other Improvements shall be placed underground, except that during the construction of a Building or other Improvements the contractor or builder may install a temporary overhead utility line which shall be promptly removed upon completion of construc­tion.

 

                        .10          Parking Areas.  All driveways and parking areas shall be subject to reasonable regulation and control by the Association.  The Association may, among other things, designate and restrict certain parking areas for the exclusive use of certain classes of persons, such as employees, handicapped persons or patrons.

 

                        .11          Declarant's Use.  Notwithstanding any provision of this Declaration to the contrary, Declarant, and Declarant's Permittees involved in the development of or construction on the Undeveloped Building Sites, may perform such activities and maintain such facilities as may be reasonably required, necessary or incidental to the construction and sale of Building Sites and to the development of the Undeveloped Building Sites.  Such rights shall include, without limiting the generality of the foregoing, maintaining business offices, storage areas, construc­tion yards and equipment, signs, model units and sales offices; provided, that neither Declarant nor Declarant's Permittees shall perform any activity or maintain any facility on any portion of the Project in such a way as to interfere unreasonably with the ability of any Owner or his Permittees to obtain access to such Owner's Building Site and the Common Area.

 

                        .12          Determination of Violations.  Any determination as to whether a particular activity or occurrence constitutes a violation of this Article VIII shall be made by the Board and shall be final.

                                                                      Article IX

                                                                PARTY WALLS

                        .1            General Rules of Law to Apply.  To the extent not inconsistent with the provision of this article, the general rules of law in Colorado regarding party walls and liability for damage due to negligence or willful acts or omissions shall apply to all Party Walls.

 

                        .2            Repair and Maintenance.  The cost of normal repair and maintenance of each Party Wall shall be shared by the Owners of the Building Sites on which such Party wall is located, with each such Owner bearing a proportion of such cost equal to the number of linear feet of such Owner's Building enclosed by such Party Wall divided by the total number of linear feet of such Party Wall enclosing all Buildings.  By way of illustration, if a given Party Wall were 30 feet in length and enclosed ten linear feet of Building 1 and 15 linear feet of Building 2, the Owner of Building 1 would be responsible for 40% of normal repair and maintenance costs for the entire wall and the Owner of Building 2 would be responsible for 60% of such costs.

 

                        .3            Negligence.  Notwithstanding any other provision of this article, any Owner who by his negligent or willful act causes a Party Wall to be exposed to the elements or otherwise damaged shall bear the entire cost of repairing the damages caused thereby and furnishing the necessary protection against such elements.

 

                        .4            Right to Contribution.  The right of any Owner to contribution from any other Owner under this article (and the corresponding obligation to contribute) shall run with title to the affected Building Sites, benefiting and binding the respective successors in title of such Owners.

 

                        .5            Arbitration.  Any dispute between Owners concerning a Party Wall or concerning the provisions of this article shall arbitrated with finality by the Board under reason­able rules and procedures to be formulated by the Board.  No court shall have jurisdiction over any such dispute; provided, that the decision of the Board may be filed with any court of competent jurisdiction and may thereafter be enforced as a judgment of such court in accordance with applicable statutes and rules of court.

                                                                       Article X

                                                                  INSURANCE

                      .1              Liability Insurance.  The Association shall obtain and maintain in force an adequate comprehensive policy of public liability insurance covering all of the Common Area, as well as any Undeveloped Building Site until such time as any construction is commenced on such Undeveloped Building Site, in such limits as the Board or the Managing Agent may from time to time determine.  Coverage shall include, without limitation, liability for personal injuries and property damage occurring on the covered property, operation of automobiles on behalf of the Association, and activities in connection with the ownership, operation, maintenance and other use of the Project.  The liability insurance for the Undeveloped Building Sites shall name as insureds the Owners of such Undeveloped Building Sites and, if so requested in writing by the First Mortgagee of any Undeveloped Building Site, such First Mortgagee.  All other liability insurance shall name as insureds the Association, the members of the Board, the Managing Agent, if any, the officers of the Association and the Declarant.  The Association shall have no responsibility to obtain or pay for liability insurance with respect to Building Sites other than Undeveloped Building Sites.

 

                        .2            Hazard Insurance on Common Area.  The Association shall obtain full replacement cost fire and extended coverage insurance covering loss, damage or destruction affecting property owned by the Association, including the Common Area (without regard to whether the Association holds legal title to the Common Area); such insurance shall name as insureds the Association and, so long as the Declarant holds legal title to any part of the Common Area, the Declarant, as their interests may appear.

 

                        .3            Fidelity Insurance.  The Association shall obtain adequate fidelity coverage or fidelity bonds to protect against dishonest acts on the part of its officers, directors and employees and on the part of all others who handle or are responsible for handling the funds of the Association, including persons who serve the Association without compensation.

 

                        .4            Workers' Compensation and Employer's Liability Insurance.  At all times at which the Association has any employees, the Association shall maintain in force workers' compensation, employer's liability insurance and all other similar insurance with respect to its employees, in such amounts and forms as may be required by law.

 

                        .5            Officers' and Directors' Liability Insurance.  The Association may obtain officers' and directors' personal liability insurance to protect the officers and directors of the Association from personal liability in relation to actions as officers and directors of the Association.

 

                        .6            Other Insurance.  The Association may obtain insurance against such other risks, of similar or dissimilar nature, as it shall deem appropriate with respect to the Project.

 

                        .7            Insurance Standards.  Each insurance policy maintained by the Association shall comply with such of the following standards as are applicable to the type coverage provided by such policy:

 

Tab inserted at 15                      .1                Except as otherwise permitted by law with respect to workers' compensation insurance, each policy shall be issued by a financially responsible company authorized to do insurance business in the State of Colorado.

 

                      .2  To the extent reasonably obtainable, each policy shall contain a waiver by the insurer of any right of subrogation against any Person having any interest in all or any part of the Project.

 

                      .3  To the extent reasonably obtainable, each policy shall contain a waiver by the insurer of any defense, based on any act, omission, representation or statement of any Owner, as against the Association or any other Owner.

 

                      .4  Each policy shall provide that it may not be cancelled (or modified so as to reduce or eliminate any coverage) for any reason without at least 30 days' prior written notice to (a) the Association, (b) each Owner and (c) each Mortgagee insured under or identified in such policy.

 

                      .5                Except in the case of workers' compensation insurance, each policy shall contain a provision confirming that the coverage provided by such policy is primary coverage, as regards any overlapping coverage that may be maintained independently by any Owner.

 

                      .6  Each casualty insurance policy that includes any coinsurance provision shall also contain a provision by which the insurer agrees that the limits of coverage are sufficient to avoid application of the coinsurance provision.

 

Tab at 15 removed                      .8              Insurance Reviews.  The Board shall review at least annually the insurance carried on behalf of the Association for the purpose of determining whether the limits or coverages provided by any policy should be adjusted.  With respect to casualty insurance, the Board shall obtain, and shall base its determination on, an appraisal by a qualified real estate or insurance appraiser of the full replacement cost, without deduc­tion for depreciation, of all insurable portions of the Common Area and any other property owned by the Association.

 

                      .9              Premiums.  Premiums for each insurance policy maintained by the Association, including liability insurance with respect to the Undeveloped Building Sites, shall be an expense of the Association, to be budgeted for and recouped through assessments as provided in Article V above.

 

                      .10            Waiver of Claims.  To the extent that (a) the cost of repairing or replacing any part of the Project is covered by any insurance policy provided for in this article and containing an effective waiver of subrogation rights, and (b) the Association makes the proceeds of a claim under such policy avail­able for payment of such cost, no Owner shall assert against the Association or any other Owner, and, notwithstanding the provisions of Sections 2.9 and 8.2 above, the Association shall not assert against any Owner, any claim for payment of such cost.

                                                                      Article XI

                            DAMAGE TO OR DESTRUCTION OF COMMON AREA

                      .1              Notice to Owners.  As soon as practical after an event causing substantial damage to or destruction of any part of the Common Area, the Board shall obtain a reliable estimate of the cost of repairing such damage or destruction and the time required to complete such repairs, and shall notify each Owner of the occurrence of such event and of information contained in the estimate.

 

                      .2              Segregation of Repair Funds.  All insurance proceeds received by the Association as a result of any such damage or destruction shall be deposited in a special account with a federally-insured depository and, except as provided in Section 13.2 below, the funds in that account shall be used solely for the purpose of paying for repairs necessitated by such damage or destruction.  If the insurance proceeds are insuffi­cient to pay the full cost of such repairs, the Board shall levy a special assessment pursuant to Section 5.4 above to cover the shortfall in insurance proceeds, and all funds collected as a result of such special assessment shall be deposited in the special account referred to in the preceding sentence.

 

                      .3              Competitive Bids; Bonds; Exceptions.  If the estimated cost of repairing such damage or destruction exceeds $5,000, the Board shall not cause the Association to enter into any contract for such repairs without first advertising for sealed bids from licensed contractors capable of performing the repairs.  Any contract for such repairs shall require the contractor to provide performance and payment bonds for the benefit of the Association.  Notwithstanding any other provision of this section, however, the Board may, by unanimous action, authorize the Association to enter into a contract without seeking or obtaining competitive bids, to waive the bond requirement, or both.

 

                      .4              Repair; Disposition of Surplus.  As soon as the necessary funds have been collected, the Association shall proceed to have the damage or destruction repaired with all reasonable speed and diligence.  Any funds remaining in the special account established pursuant to Section 11.2 following completion of and payment for such repairs shall be transferred to the Association's reserves; provided, that if a special assessment was levied to pay for all or part of the cost of such repairs, the Board may by unanimous action direct that some part or all of such remaining funds be distributed to the Owners.  If the Board directs such a distribution to Owners, the distributable funds shall be distributed to the Owners in proportion to their actual contributions (exclusive of interest, late charges or collection costs attributable to delinquency in payment) to the special assessment.

                                                                     Article XII

                                          CONDEMNATION OF COMMON AREA

                      .1              Consequences of Condemnation.  If at any time or times during the term of this Declaration all or any part of the Common Area, or any facilities therein, shall be taken by eminent domain or transferred under threat of such a taking, all resulting compensation, damages or other proceeds (collectively referred to in this article as the "Condemnation Award") shall be payable to the Association and the provisions of this article shall apply.

 

                      .2              Notice to Owners.  Promptly after learning that a taking of all or any part of the Common Area is threatened, the Board shall notify each Owner of that fact, and shall continue to notify each Owner of significant developments relating to the proposed taking.

 

                      .3              Complete Taking.  If all or substantially all of the Common Area is taken, the Condemnation Award shall be applied first to the payment of any unpaid expenses incurred by the Association in negotiating or litigating and collecting the Condemnation Award, second to reimburse the Owners for amounts paid by them pursuant to any special assessment levied to finance the cost of negotiating or litigating and collecting the Condem­nation Award, and third, the balance shall be apportioned among and distributed to the Owners in proportion to the number of Building Site Equivalents owned by each.

 

                      .4              Partial Taking.  If less than substantially all of the entire Common Area is taken, the Condemnation Award shall be applied as provided in clauses "first" and "second" in Section 12.2 and the balance shall be apportioned among some or all of the Owners as the Board determines to be equitable under the circumstances; provided, that if the allocation of the balance of the Condemnation Award as among the Owners has been judicially determined, that determination shall control.

 

                      .5              Protection of First Mortgagees.  The portion of any Condemnation Award distributable to the Owner of any Building Site, the First Mortgagee of which has given notice to the Association pursuant to Section 13.7 below, shall be distributed by check payable jointly to such Owner and such First Mortgagee.

                                                                    Article XIII

                                                             MISCELLANEOUS

                      .1              Term of Declaration.  This Declaration shall continue in full force and effect for a period of 20 years from the date it is recorded in the office of the Clerk and Recorder of Larimer County, Colorado, and shall thereafter be automatically extended for four successive periods of ten years each unless, within the 12 months next preceding the beginning of any ten-year extension term, the Owners of at least two thirds of all Building Site Equiva­lents and their respective First Mortgagees, if any, agree in writing to terminate this Declaration by reason of the substantial destruction, condemnation or obsolescence of the Project; provided, that this Declaration shall terminate upon the condemnation or other taking at any time of all or substan­ti­ally all of the Common Area, except that the provisions of Article XII shall survive until all interested Persons have complied with such provisions.

 

                      .2              Effect of Termination.  Upon termination of this Declaration for any reason, any cash in the possession of the Association shall be distributed to the then Owners in proportion to the Building Site Equivalents owned by each, and, unless the Board unanimously directs otherwise, all other assets of the Association shall be distributed in the same proportions to such Owners as tenants in common.

 

                      .3              Association as Attorney-in‑Fact.  By acquiring title to any Building Site, each Owner shall be deemed automati­cally and irrevocably to have appointed the Association, acting through its president, as the attorney-in-fact for such Owner for purposes of executing any document or taking any other action relating to the Common Area following the substantial destruction, condemnation or obsolescence of the Project.

 

                      .4              Amendment of Declaration.  Except as otherwise provided in this section, this Declaration may be amended only by written instrument signed by the Owners of at least two thirds of all Building Site Equiva­lents and their respective First Mortgagees, if any, and recorded in the office of the Clerk and Recorder of Larimer County, Colorado.  Notwithstanding the preceding sentence, Declarant may, subject to the provisions of Section 13.5, unilaterally amend this Declaration at any time during the Declarant Control Period by executing an appropriate instrument and recording it in the office of the Clerk and Recorder of Larimer County, Colorado.  Any amendment adopted in accordance with the provisions of this section shall be binding on all Owners and all Mortgagees and others claiming under any Owner to the same extent as though all such Persons had executed and delivered such amendment.

 

                      .5              Actions Requiring Special Approval.  Notwith­standing any other provision of this Declaration, none of the following actions may be taken without the prior written approval of Owners of at least two thirds of all Building Site Equiva­lents and their respective First Mortgagees, if any:

 

Tab inserted at 15                      .1                Sale, transfer or encumbrance of any part of the Common Area, unless caused by condemnation or other taking, except that this provision shall not limit the Association's power to grant easements affecting the Common Area for utilities and similar purposes;

 

                      .2  Any amendment to this Declaration or to the Articles or Bylaws that would cause or permit a change in the method of allocating (a) assessments or other charges or revenues among the Building Sites, or (b) representa­tion of Owners on the Board;

 

                      .3                Any amendment to this Declaration that would relax the restrictions contained in Sections 7.3 and 7.4;

 

                      .4                Any merger of the Association with any other corporation, or amendment of this Declaration that would have the effect of expanding the definition of "Property"; or

 

                      .5  Any reduction, whether by amendment, waiver or otherwise, of any material aspect of the Association's duties under this Declaration, including but not limited to the Association's duties to maintain the Common Area and to maintain insurance coverage.

 

Tab at 15 removed                      .6              Surrender of Declarant Control.  Declarant may, in Declarant's sole discretion, waive before the end of the Declarant Control Period any or all of the rights, powers, privileges and immunities otherwise available to Declarant during the Declarant Control Period.  Any such waiver may be either revocable or irrevocable; in either case, it shall be evidenced only by written instrument referring to this Declaration and specifically identifying the right, power, privilege or immunity to be waived, signed and acknowledged by Declarant and recorded in the office of the Clerk and Recorder of Larimer County, Colorado.  To the extent any such waiver is by its terms revoc­able, any revocation of such waiver shall be evidenced in the same manner.

 

                      .7              Notice to Mortgagees.  Any Mortgagee may give written notice to the Association of such Mortgagee's identity, interest and address, accompanying such notice with a copy (showing the recording information) of the recorded mortgage or deed of trust evidencing such interest.  Until such time as the Association receives satisfactory evidence (which may consist of a certified copy of a recorded release of the mortgage or deed of trust) that the Person giving any such notice is no longer a Mortgagee, the Association shall send to such Mortgagee a copy of each notice (including Assessment Notices) given by the Associa­tion to the Owner of the Building Site encumbered for the benefit of such Mortgagee.  For purposes of this section, any notice given by the Board, the Managing Agent or the Architectural Review Committee shall be regarded as a notice given by the Association.  The giving of notices to Mortgagees pursuant to this section shall be regarded as an accommodation to the Owners and their Mortgagees, and the Association shall have no liability for the failure of any Mortgagee to receive any such notice, whether or not such failure is caused by the negligence of the Association.

 

                      .8              Separate Taxation.  Declarant shall request that the Assessor of Larimer County, Colorado, identify each Building Site as a separate parcel for real property tax purposes.  To the extent any tax or assessment is levied on a basis that treats two or more Building Sites having different Owners, or a Building Site and all or a portion of the Common Area, as a single tax parcel, the Board shall make an equitable allocation of such tax or assessment and shall notify the Owner or Owners affected of the amount for which each such Owner is responsible.  Such allocation by the Board shall be final and may be enforced by special assessment in the manner and with the effect specified in Section 2.9 above.

 

                      .9              Indemnification.  Subject to the provisions of Section 10.10 above, each Owner shall indemnify the Association and all other Owners against any loss, damage or expense, including reasonable attorneys' fees, resulting from any claim for injury to person or property occurring within the Project as a consequence of the negligence of the indemnifying Owner or of his Permittees.

 

                      .10            Covenants Run With Property.  The benefits, burdens and other provisions contained in this Declaration shall be regarded and enforced as covenants running with title to the Property and every part thereof, and shall bind and benefit each Owner, the Association and their respective heirs, personal representatives, successors and permitted assigns.

 

                      .11            Conflicts in Legal Documents.  In case of conflicts between the provisions of this Declaration and the Articles or the Bylaws, this Declaration shall control.  In case of conflicts between provisions in the Articles and the Bylaws, the Articles shall control.

 

                      .12            Non-Waiver.  Failure by Declarant, the Association or any Owner to enforce any covenant, condition, restric­tion, easement, reservation, right-of-way or other provision of this Declaration shall not be deemed to be a waiver of the right to do so thereafter.

 

                      .13            Number and Gender.  Unless the context otherwise requires, the use of the singular herein shall include the plural, the use of the plural shall include the singular, and the use of any gender shall include all genders.

 

                      .14            Captions.  The article and section captions in this Declaration, and the Table of Contents at the beginning of this Declaration, are included only as a matter of convenience and are not to be construed as defining or limiting the scope of this Declaration or the purpose of any provision hereof.

 

                      .15            Severability.  The provisions of this Declaration shall be deemed to be independent and severable, and no deter­mination that any provision hereof is invalid or unenforceable, in whole or part, shall affect the validity or enforceability of any other provision of this Declaration.

 

IN WITNESS WHEREOF, Declarant has executed this Declaration as of the date first mentioned above.

 

 

ATTEST:                                                              BOULDER-LARIMER PROPERTIES, INC., a Colorado corporation

 

 

 

                                                                             By                               

                        Secretary                                                Perry A. Stacks, Jr., President

 

 

 

 

 

 

STATE OF WASHINGTON  )

                                                )  ss.

COUNTY OF KING              )

 

                        The foregoing instrument was acknowledged before me this      day of April, 1989, by Perry A. Stacks, Jr. as President of Boulder-Larimer Properties, Inc., a Colorado corporation.

 

                        My commission expires:                                 

 

                        Witness my hand and official seal.

 

 

 

                                                                                                              

                                                                                                         Notary Public


                                                    CONSENT BY LIENHOLDER

 

 

                        The undersigned, as successor beneficiary under the deeds of trust recorded March 26, 1984 in Book 2264 at Page 1638 and in Book 2264 at Page 1665 (each of which encumbers portions of the Property referred to in the foregoing Declaration of Covenants, Conditions and Restrictions for Boardwalk Phase II), hereby consents to the adoption by the Declarant of that Declaration, and agrees that no rights of the Association or of any Owner (other than the named Declarant) shall be affected by any foreclosure of any such deed of trust.

 

                        Signed and delivered as of the     day of April, 1989.

 

 

                                                                             FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, as Receiver for Westside Federal Savings and Loan Association

 

 

 

                                                                             By                              

                                                                                       Perry A. Stacks, Jr., Special Representative

 

 

 

 

 

 

STATE OF WASHINGTON  )

                                                )  ss.

COUNTY OF KING              )

 

                        The foregoing instrument was acknowledged before me this      day of April, 1989, by Perry A. Stacks, Jr., as Special Representative of Federal Savings and Loan Insurance Corporation, as Receiver for Westside Federal Savings and Loan Association.

 

                        My commission expires:                                 

 

                        Witness my hand and official seal.

 

 

 

                                                                                                              

                                                                                                         Notary Public


                                                                    EXHIBIT A

                                                                             to

              DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

 

                                                       (Legal Description of Property)

 

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Beginning at the Northwesterly corner of said Block 1, said point also being the Northeasterly corner of Boardwalk Drive, as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Easterly along the Northerly line of said Block 1, North 56º34'21" East, 207.63 feet; thence South 90º00'00" East, 282.00 feet; thence departing said Northerly line and South 00º00'00" West, 111.50 feet; thence North 90º00'00" West, 30.56 feet; thence South 00º00'00" West, 92.50 feet; thence North 90º00'00" West, 7.00 feet; thence South 00º00'00" West, 84.00 feet; thence South 27º27'05" East, 53.39 feet; thence South 90º00'00" East, 120.95 feet; thence South 00º00'00" West, 313.60 feet; thence South 25º14'20" East, 97.81 feet to a point on the Northerly right‑of‑way line of Whalers Way; thence along said Northerly right‑of‑way line North 64º45'40" East, 91.50 feet; thence departing said Northerly right-of-way line and North 25º14'20" West, 173.48 feet; thence North 00º00'00" East, 69.51 feet; thence South 90º00'00" East, 214.50 feet to the Easterly line of said Block 1; thence along said Easterly line South 00º00'00" West, 165.63 feet to the Southeasterly corner of said Block 1, said point also being the Northeasterly corner of Whalers Way, as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Westerly along the Northerly right‑of‑way line of said Whalers Way along a curve to the left having a central angle of 05º54'14", a radius of 927.75 feet, and a long chord which bears South 67º42'47" West 95.56 feet, an arc distance of 95.60 feet; thence South 64º45'40" West, 322.51 feet; thence along a curve to the right having a central angle of 95º44'11", a radius of 15.00 feet, and a long chord which bears North 67º22'15" West 22.25 feet, an arc distance of 25.06 feet to the Easterly right-of-way line of Boardwalk Drive; thence Northerly along said Easterly right-of-way line along a curve to the left having a central angle of 08º15'58", a radius of 690.00 feet, and a long chord which bears North 23º38'08" West 99.46 feet, an arc distance of 99.55 feet; thence North 27º46'07" West, 315.27 feet; thence along a curve to the left having a central angle of 18º40'43", a radius of 1230.00 feet, and a long chord which bears North 37º06'28" West 399.21 feet, an arc distance of 400.98 feet to the Point of Beginning,

 

County of Larimer,

State of Colorado.


                                                                    EXHIBIT B

                                                                             to

              DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

 

                                                                   (Building Sites)

 

 

BANK BUILDING SITE:

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Southeasterly corner of said Block 1, said corner also being the Northeasterly corner of Whalers Way as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Westerly along the Northerly right-of-way line of said Whalers Way along a curve to the left having a central angle of 05º54'14", a radius of 927.75 feet, and a long chord which bears South 67º42'47" West 95.56 feet, an arc distance of 95.60 feet; thence South 64º45'40" West, 220.82 feet; thence departing said Northerly right-of-way line and North 25º14'20" West, 32.50 feet to the True Point of Beginning; thence South 64º25'52" West, 60.00 feet; thence North 25º34'08" West, 60.00 feet; thence South 64º25'52" West, 30.00 feet; thence North 25º34'08" West, 76.00 feet; thence North 64º25'52" East, 30.20 feet; thence South 25º34'08" East, 16.00 feet; thence North 64º25'52" East, 30.00 feet; thence South 25º34'08" East, 44.00 feet; thence North 64º25'52" East, 29.80 feet; thence South 25º34'08" East, 76.00 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

BUILDING SITE F:

 

That part of Block 1, First Replat of Boardwalk at The Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Northwesterly corner of said Block 1, said corner also being the Northeasterly corner of Boardwalk Drive, as platted in said First Replat of Boardwalk at The Landings P.U.D.; thence Easterly along the Northerly line of said Block 1, North 56º34'21" East, 207.63 feet; thence South 90º00'00" East, 198.51 feet; thence departing said Northerly line and South 00º00'00" West, 42.05 feet to the True Point of Beginning; thence North 89º54'13" East, 73.60 feet; thence South 00º05'47" East, 49.60 feet; thence South 89º54'13" West, 73.60 feet; thence North 00º05'47" West, 49.60 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

BUILDING SITE G:

 

That part of Block 1, First Replat of Boardwalk at The Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Northwesterly corner of said Block 1, said corner also being the Northeasterly corner of Boardwalk Drive, as platted in said First Replat of Boardwalk at The Landings P.U.D.; thence Easterly along the Northerly line of said Block 1, North 56º34'21" East, 207.63 feet; thence South 90º00'00" East, 186.54 feet; thence departing said Northerly line and South 00º00'00" West, 111.30 feet to the True Point of Beginning; thence North 89º57'53" East, 49.60 feet; thence South 00º02'07" East, 73.60 feet; thence South 89º57'53" West, 49.60 feet; thence North 00º02'07" West, 73.60 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

BUILDING SITE H:

 

That part of Block 1, First Replat of Boardwalk at The Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Northwesterly corner of said Block 1, said corner also being the Northeasterly corner of Boardwalk Drive, as platted in said First Replat of Boardwalk at The Landings P.U.D.; thence Easterly along the Northerly line of said Block 1, North 56º34'21" East, 207.63 feet; thence South 90º00'00" East, 161.27 feet; thence departing said Northerly line and South 00º00'00" West, 206.78 feet to the True Point of Beginning; thence North 89º51'48" East, 73.60 feet; thence South 00º08'12" East, 49.60 feet; thence South 89º51'48" West, 73.60 feet; thence North 00º08'12" West, 49.60 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

BUILDING SITE I:

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Northwesterly corner of said Block 1, said point also being the Northeasterly corner of Boardwalk Drive as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Easterly along the Northerly line of said Block 1, North 56º34'21" East, 207.63 feet; thence South 90º00'00" East, 91.81 feet; thence departing said Northerly line and South 00º00'00" West, 170.88 feet to the True Point of Beginning; thence North 89º50'15" East, 49.80 feet; thence South 00º09'45" East, 73.60 feet; thence South 89º50'15" West, 49.80 feet; thence North 00º09'45" West, 73.60 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

UNDEVELOPED BUILDING SITE J:

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Southeasterly corner of said Block 1, said point also being the Northeasterly corner of Whalers Way, as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Westerly along the Northerly right‑of‑way line of said Whalers Way along a curve to the left having a central angle of 05º54'14", a radius of 927.75 feet, and a long chord which bears South 67º42'47" West 95.56 feet, an arc distance of 95.60 feet; thence South 64º45'40" West, 5.06 feet; thence departing said Northerly right-of-way line and North 25º14'20" West, 33.50 feet to the True Point of Beginning; thence South 64º45'40" West, 49.25 feet; thence North 25º14'20" West, 73.25 feet; thence North 64º45'40" East, 49.25 feet; thence South 25º14'20" East, 73.25 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

UNDEVELOPED BUILDING SITE K:

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Southeasterly corner of said Block 1, said point also being the Northeasterly corner of Whalers Way, as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Northerly along the Easterly line of said Block 1, North 00º00'00" East, 20.80 feet; thence departing said Easterly line and North 90º00'00" West, 17.81 feet to the True Point of Beginning; thence South 64º45'40" West, 73.25 feet; thence North 25º14'20" West, 49.25 feet; thence North 64º45'40" East, 73.25 feet; thence South 25º14'20" East, 49.25 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

UNDEVELOPED BUILDING SITE L:

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Northwesterly corner of said Block 1, said point also being the Northeasterly corner of Boardwalk Drive as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Southerly along the Easterly right-of-way line of said Boardwalk Drive, along a curve to the right having a central angle of 16º46'04", a radius of 1230.00 feet and a long chord which bears South 38º03'48" East 358.68 feet, an arc distance of 359.96 feet; thence departing said Easterly right-of-way line and North 60º19'14" East, 151.77 feet to the True Point of Beginning; thence North 62º32'55" East, 72.94 feet; thence South 27º27'05" East, 53.39 feet; thence South 90º00'00" East, 114.05 feet; thence South 00º00'00" West, 140.00 feet; thence North 90º00'00" West, 122.44 feet; thence North 27º46'07" West, 173.77 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

UNDEVELOPED BUILDING SITE M:

 

That part of Block 1, First Replat of Boardwalk at The Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Northwesterly corner of said Block 1, said corner also being the Northeasterly corner of Boardwalk Drive, as platted in said First Replat of Boardwalk at The Landings P.U.D.; thence Easterly along the Northerly line of said Block 1, North 56º34'21" East, 207.63 feet; thence South 90º00'00" East, 130.70 feet to the True Point of Beginning; thence continuing along said Northerly line South 90º00'00" East, 21.30 feet; thence departing said Northerly line and South 33º25'39" East, 48.55 feet; thence South 00º00'00 West, 29.61 feet; thence South 56º34'21" West, 100.69 feet; thence North 33º25'39" West, 105.00 feet; thence North 56º34'21" East, 45.00 feet; thence South 33º25'39" East, 20.00 feet; thence North 56º34'21" East, 54.22 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 


                                                                    EXHIBIT C

                                                                             to

              DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

 

                                                        (Undeveloped Building Sites)

 

 

UNDEVELOPED BUILDING SITE J:

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Southeasterly corner of said Block 1, said point also being the Northeasterly corner of Whalers Way, as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Westerly along the Northerly right‑of‑way line of said Whalers Way along a curve to the left having a central angle of 05º54'14", a radius of 927.75 feet, and a long chord which bears South 67º42'47" West 95.56 feet, an arc distance of 95.60 feet; thence South 64º45'40" West, 5.06 feet; thence departing said Northerly right-of-way line and North 25º14'20" West, 33.50 feet to the True Point of Beginning; thence South 64º45'40" West, 49.25 feet; thence North 25º14'20" West, 73.25 feet; thence North 64º45'40" East, 49.25 feet; thence South 25º14'20" East, 73.25 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

UNDEVELOPED BUILDING SITE K:

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Southeasterly corner of said Block 1, said point also being the Northeasterly corner of Whalers Way, as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Northerly along the Easterly line of said Block 1, North 00º00'00" East, 20.80 feet; thence departing said Easterly line and North 90º00'00" West, 17.81 feet to the True Point of Beginning; thence South 64º45'40" West, 73.25 feet; thence North 25º14'20" West, 49.25 feet; thence North 64º45'40" East, 73.25 feet; thence South 25º14'20" East, 49.25 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

UNDEVELOPED BUILDING SITE L:

 

That part of Block 1, First Replat of Boardwalk at the Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Northwesterly corner of said Block 1, said point also being the Northeasterly corner of Boardwalk Drive as platted in said First Replat of Boardwalk at the Landings P.U.D.; thence Southerly along the Easterly right-of-way line of said Boardwalk Drive, along a curve to the right having a central angle of 16º46'04", a radius of 1230.00 feet and a long chord which bears South 38º03'48" East 358.68 feet, an arc distance of 359.96 feet; thence departing said Easterly right-of-way line and North 60º19'14" East, 151.77 feet to the True Point of Beginning; thence North 62º32'55" East, 72.94 feet; thence South 27º27'05" East, 53.39 feet; thence South 90º00'00" East, 114.05 feet; thence South 00º00'00" West, 140.00 feet; thence North 90º00'00" West, 122.44 feet; thence North 27º46'07" West, 173.77 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 

 

UNDEVELOPED BUILDING SITE M:

 

That part of Block 1, First Replat of Boardwalk at The Landings P.U.D., according to the recorded plat thereof, described as follows:  Commencing at the Northwesterly corner of said Block 1, said corner also being the Northeasterly corner of Boardwalk Drive, as platted in said First Replat of Boardwalk at The Landings P.U.D.; thence Easterly along the Northerly line of said Block 1, North 56º34'21" East, 207.63 feet; thence South 90º00'00" East, 130.70 feet to the True Point of Beginning; thence continuing along said Northerly line South 90º00'00" East, 21.30 feet; thence departing said Northerly line and South 33º25'39" East, 48.55 feet; thence South 00º00'00 West, 29.61 feet; thence South 56º34'21" West, 100.69 feet; thence North 33º25'39" West, 105.00 feet; thence North 56º34'21" East, 45.00 feet; thence South 33º25'39" East, 20.00 feet; thence North 56º34'21" East, 54.22 feet to the True Point of Beginning,

 

County of Larimer,

State of Colorado.

 


                                                                    EXHIBIT D

                                                                             to

              DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

 

                                                              (Allocation of Votes)

 

 

Building Site                                       Floor Area                                          Vote

 

        Bank                                                      8,172                                         8,172/87,188

           F                                                         7,301                                         7,301/87,188

           G                                                         7,301                                         7,301/87,188

           H                                                         7,301                                         7,301/87,188

            I                                                          7,331                                         7,331/87,188

           J                                                          7,215                                         7,215/87,188

           K                                                         7,215                                         7,215/87,188

           L                                                       24,813                                         24,813/87,188

          M                                                       10,539                                         10,539/87,188

 

                                    Totals                       87,188                                         87,188/87,188