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
(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;
all 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:
.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.
The 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:
.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.
.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.
.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.
.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:
.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.
.5 Criteria
for Review.
The Committee shall review all applications for alterations or
improvements, considering:
.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.
The 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:
.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.
.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:
.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.
.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:
.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.
.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:
.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.
.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