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HomeMy WebLinkAboutRC 20051221000412 V 01100111111101000101110 20051221000412 CITY OF RENTON RCOVE 53.00 PAGE001 OF 022 12/21/2005 10:55 KING COUNTY, WA Return Address: City Clerk's Office City of Renton 1055 S.Grady Way Renton,Washington 98055 Please print or type information Document Title(s) (or transactions contained therein):(all areas applicable to your document must be filled in) 1. DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS FOR ELMHURST Reference Number(s)of Related Documents: N/A Additional reference#'s on page of document Grantor(s) (Last name, first name,initials) 1.M.J.F.HOLDINGS,INC.,a Washington corporation 2. Additional names on page of document. Grantee(s) (Last name first,then first name and initials) 1.M.J.F.HOLDINGS,INC.,a Washington corporation Additional names on page of document. Legal description (abbreviated: i.e. lot,block,plat or section,township,range) Lots 1 through 64 and Tracts A and B of the plat of Elmhurst,as per plat recorded in Volume Z32of Plats,Pages Z$ through 32-,Records of King County,Washington. Additional legals are on Exhibit A of document. Assessor's Property Tax ParceUAccount Number ❑Assessor Tax#not yet assigned 5182100049,5182100050 and 5182100051 The Auditor/Recorder will rely on the information provided on the form. The staff will not read the document to verify the accuracy or completeness of the indexing information provided herein. 1 •• DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR ELMHURST THIS DECLARATION is made on the date hereinafter set forth by M.J.F. HOLDINGS, INC., a Washington corporation ("Declarant"), the owner of certain land situated in the State of Washington, City of Renton, King County, commonly known as ELMHURST, which is more particularly described as follows: Lots 1 through 64 and Tracts A and B of the plat of Elmhurst, as per plat recorded in Volume Z32 of Plats, Pages IZSL through 3'2_ Records of King County,Washington. In order to ensure preservation of the gracious residential environment at ELMHURST, Declarant agrees and covenants that all land and improvements now existing or hereafter constructed thereon will be held, sold, conveyed subject to, and burdened by the following covenants, conditions, restrictions, reservations, limitations, liens and easement, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of such lands for the benefit of all such lands and the owners thereof and their heirs, successors, grantees and assigns. All provisions of this Declaration shall be binding upon all parties having or acquiring any right, title or interest in such lands or any portion thereof and shall inure to the benefit of each owner thereof and to the benefit of the ELMHURST Homeowners'Association and shall otherwise in all respects be regarded as covenants running with the land. ARTICLE I DEFINITIONS For purposes of the Declaration and the Articles of Incorporation and the Bylaws of the ELMHURST Homeowners' Association, certain words and phrases shall have particular meanings as follows: Section 1. "Association"shall mean and refer to the ELMHURST Homeowners' Association, its successors and assigns. 2 Section 2. `Board" shall mean and refer to the Board of Directors of the Association, as provided for in Article VIII. For the purposes of exercising the powers and duties assigned in this Declaration to the Board, this term shall also mean the "Temporary Board" or "Declarant" as provided in Article III unless the language or context indicates otherwise. Section 3. "Properties" shall mean and refer to the real property described with particularity in Exhibit A. Section 4. "Lot" shall mean and refer to any plot of land shown upon any recorded subdivision map of the Properties. This term shall not include tracts designated on the face of the Plat. Section 5. "Declarant' shall mean and refer to MJF Holdings, Inc., its successors and assigns. Successors and assigns shall not include other developers who acquire one or more undeveloped lot from the Declarant for the purpose of development. Section 6. "Architectural Control Committee" shall mean and refer to the duly appointed or elected committee of the Board of Directors as outlined in Article XII of this Declaration, hereinafter referred to as the"Committee". Section 7. "Development Period" shall mean and refer to that period of time defined in Article III of this declaration. Section 8. "Plat" shall mean and refer to the plat of ELMHURST as recorded in Volume Z32. of Plats, Pages 241 through 3 inclusive, Records of King County, State of Washington. Section 9. "Residence"shall mean and refer to any buildings occupying any lot. Section 10. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee interest in any Lot, including the Declarant, but excluding mortgagees or other persons or entities only holding security interest in properties within the Plat. Purchasers or assignees under recorded real estate contracts shall be deemed Owners as against their respective sellers or assignors. Section 11. "Building setbacks" are areas designated on the face of the plat adjacent to sensitive areas, such as property lines or utilities. ARTICLE II PRE-EXISTING RESTRICTIONS The Properties shall continue to be subject to previous covenants, conditions, encumbrances and restrictions, to the extent that such restrictions are valid. 3 ARTICLE III DEVELOPMENT PERIOD; MANAGEMENT RIGHTS OF DECLARANT DURING DEVELOPMENT Section 1. Management by Declarant. "Development period" shall mean that period of time from the date of recording this Declaration until (1) a date five years from the date of recording this Declaration or (2) the thirtieth day after Declarant has transferred title to the purchasers of the Lots representing 99 percent of the total voting power of all Lot owners as then constituted or (3) the date on which Declarant elects to permanently relinquish all of Declarant's authority under this Article by written notice to all Owners, whichever date first occurs. During the Development Period, the Declarant shall appoint the Board of Directors of the Association. Section 2. Notices to Owners. Before the termination of the Development Period, the Declarant will give written notice of the termination of the Development Period to the Owner of each Lot. Said notice shall specify the date when the Development Period will terminate and shall further notify the Owners of the date, place and time when a meeting of the Association will be held. The notice shall specify that the purpose of the Association meeting is to elect new Officers and Directors of the Association, notwithstanding any provision of the Articles or Bylaws of the Association to the contrary, for the purpose of this meeting, the presence, either in person or by proxy, of the Owners of the number of lots as specified in the by-laws shall constitute a quorum. The Board of Directors and officers of the Association may be elected by a majority vote of said quorum. If a quorum is not present, the Development Period shall nevertheless terminate on that date specified in said notice and it shall thereafter be the responsibility of the Lot Owners to provide for the operation of the Association. Section 3. Temporary Board. Declarant may in its sole discretion, and at such times as the Declarant deems appropriate, appoint a minimum of three persons who may be Owners, or representatives of corporate entities or other entities which are Owners, as a Temporary Board. During the Development Period, members of the Board of Directors need not be Owners. The Temporary Board shall have full authority and all rights, responsibilities, privileges and duties to manage the properties under this Declaration and shall be subject to all provisions of this Declaration, the Articles and the Bylaws. Section 4. Appointment of Manager. Declarant may appoint a managing agent, which shall have the power and authority to exercise all powers necessary to carry out the provisions of this Declaration, including but not limited to contracting for required services, obtaining property and liability insurance, and collecting and expending all assessments and Association funds. Any such managing agent or the Declarant shall have the exclusive right to contract for all goods and services, payment for which is to be made from any monies collected from assessments. Section 5. Acceptance of Management Authority. The purpose of this management arrangement is to ensure that the properties will be adequately managed 4 during the initial stages of development. Acceptance of an interest in a lot evidences acceptance of this management agreement. ARTICLE IV EASEMENTS, OPEN SPACES AND PRIVATE TRACTS Section 1. Drainage Easement Restrictions. Various drainage easements are indicated on the face of the Plat. Structures, fills, and obstructions, including, but not limited to decks, patios and buildings, overhangs, and trees shall not be permitted within drainage easements. The easements give the easement holder the right to enter upon said easements, and the area immediately adjacent to said easements, in order to effectuate the purposes of the easement, or to construct a hard surface road upon the easements. Section 2. Utility Easements. Various utility easements are designated on the face of the Plat for the purpose of providing Lots within the Plat with electric, telephone, gas, cable television service and water. These easements give the easement-holders the right to enter upon these Lots at all times to effectuate the purposes of the easements. No utility lines shall be placed on any Lot unless underground or in a conduit attached to a building. Structures may only be placed on easements with the permission of the Architectural Control Committee and the entity to which the easement was granted. No planting material, fill, or other substances may be placed on the utility easement, which will interfere with such utility service. Section 3. Storm Drainage. access roads, street lighting and common improvements. The Association shall always have the responsibility to maintain the plat drainage facilities, street lighting and common improvements unless these improvements either have been or are subsequently deeded or sold to a government agency for ownership and maintenance responsibility. (Also, see Section 5 of this Article IV.) Section 4. Structures Prohibited in Rights-of—Way. No structures may be placed in rights-of-way within the Plat. Section 5. Tracts public and / or private. Tract A is hereby dedicated to the ELMHURST Homeowners Association for ownership and maintenance. A non-exclusive easement for the installation, operation, maintenance, repair and reconstruction of a stormwater detention and water quality pond, other drainage facilities, fencing and landscaping (collectively, "Drainage Improvements") is hereby declared over, under, along and across Tract A. This easement shall run with the land, benefiting all of the Lots within this plat and burdening Tract A. The Drainage Improvements located within Tract A shall be owned, operated and maintained by the Elmhurst Homeowners Association until such time (if ever) the City of Renton assumes operation and maintenance responsibility for them. 5 Prior to an assumption by the City of Renton of operation and/or maintenance responsibilities of the Drainage Improvements located within Tract A, (a) the City of Renton shall have the right to enter Tract A to repair any deficiencies in such improvements in the event the Elmhurst Homeowners Association fails to maintain or repair them and (b) the cost of such repairs made by the City of Renton shall be reimbursed to the City by the Elmhurst Homeowners Association within 90 days of the City's demand. After (and to the extent of) an assumption by the City of Renton of operation and/or maintenance responsibilities of some or all of the Drainage Improvements located within Tract A, the City of Renton shall have the right to enter Tract A to operate, maintain and repair the improvements at the City's cost. Tract B is hereby dedicated to the ELMHURST Homeowners Association for ownership and maintenance. A non-exclusive easement for the installation, operation, maintenance, repair and reconstruction of the portion of the storm drainage discharge facilities in Tract B that extend downstream toward Maplewood Creek (an ephemeral stream)from the Drainage Improvements in Tract A is hereby declared over, under, along and across Tract B. This easement shall run with the land, benefiting all of the Lots within this plat and burdening Tract B. The Elmhurst Homeowners Association shall have the duty to maintain and repair Tract B, including without limitation the duty to maintain and repair when needed (1) the stream channel of the portion of Maplewood Creek lying within Tract B, (2) the storm drainage discharge facilities in Tract B that extend downstream toward Maplewood Creek from some of the Drainage Improvements in Tract A, (3) the fence along the east and north edges of Tract B (including the City-required stream buffer notice signage on that fence) and (4) the trees planted in conjunction with this plat within the stream buffer along the east and north sides of Maplewood Creek within Tract B. Prior to an assumption by the City of Renton of operation and/or maintenance responsibilities of the storm drainage discharge facilities in Tract B that extend downstream toward Maplewood Creek from some of the Drainage Improvements in Tract A, (1) the City of Renton shall have the right to enter Tract B to repair any deficiencies in such facilities in the event the Elmhurst Homeowners Association fails to maintain or repair them and (b) the cost of such repairs made by the City of Renton shall be reimbursed to the City by the Elmhurst Homeowners Association within 90 days of the City's demand. After (and to the extent of) an assumption by the City of Renton of operation and/or maintenance responsibilities of some of all of the storm drainage discharge facilities in Tract B that extend downstream toward Maplewood Creek from some of the Drainage Improvements in Tract A, the City of Renton shall have the right to enter Tract B to operate, maintain and repair the facilities at the City's cost. 6 Section 6. Consequences of (1) Homeowners Association Dissolution or (2) Failure to pay property taxes for Tracts A & B. In the event that the Elmhurst Homeowners Association is dissolved or otherwise fails to meet its property tax payment obligations with respect to Tract A and/or Tract B for a period of eighteen (18) months following the date that property taxes are due to be paid to King County for those tract(s), then, in such event, (1) each of the Lots in this plat shall be deemed to have automatically assumed an equal and undivided ownership interest in Tract A and/or Tract B (as the case may be) and (2) the owners of the Lots shall be deemed to have automatically assumed a joint obligation to perform all of the maintenance responsibilities previously borne by the Elmhurst Homeowners Association including all of the financial responsibilities attendant thereto. ARTICLE V ASSESSMENTS Section 1. Creation of Lien and Personal Obligation. Each Owner of any Lot by acceptance of a deed therefore, whether or not it shall be expressed in such deed, is deemed to covenant and agree to pay the Association (1) annual assessments or charges and (2) special assessments. Annual and special assessments shall be established and collected in accord with the following provisions. The annual and special assessments, together with interest, costs and reasonable attorneys' fees, shall be a charge on the land and shall be a continuing lien upon the property against which such assessment is made. Each assessment, together with the interest, costs and reasonable attorneys' fees incurred to collect such assessments, shall be the personal obligation of the individual who is the Owner of the Lot at the time that the assessment fell due. Section 2. Purpose of Assessments. The assessments imposed by the Association shall be used (1) to promote the recreation, health, safety and welfare of the residents of the properties, (2) for the cost of maintaining the Recreational area(s) or other tracts dedicated to the Association within the Plat, (3) for legal fees or damages incurred in any action in which the Association or a member of the Board of Architectural Control Committee, acting in behalf of the Homeowners' Association is named as a party, (4) for legal fees incurred by the Homeowners Association, (5) for any other reasonable expenses incurred by the Homeowners'Association. Section 3. Annual Assessment. The initial annual assessment shall be $180.00 per Lot payable in one annual payment; six percent of the assessment shall be allocated and paid to the Declarant for Plat management services provided by the Declarant to the Association or by a Professional management firm. Such allocated funds to the Declarant shall cease when the Development Period expires and the Association assumes collection costs, bookkeeping and other management responsibilities, which are described with particularity in the Bylaws of the Association. The annual assessment may be increased during the Development Period to reflect increased (1) maintenance costs, (2) repair costs, (3) Association and plat 7 management costs, (4) legal costs. All increases in the annual assessment during the Development Period must directly reflect increases in the above-recited costs. During the Development Period, it shall not be necessary to amend this Declaration to raise the annual assessments. During the Development Period, the Declarant shall give members of the Association notice of any increases in the annual assessment thirty days before the date that the assessment becomes effective. (a) After the Development Period expires, any increases in the annual assessment, which exceeds 10 percent, requires the vote of the members of the Association. (b) After the Development Period expires, any increases in the annual assessment, which exceeds 10%, requires the approval of 51% of the members of the Association. (c) After the Development Period expires, the Board of Directors shall fix the annual assessment in accord with the above-recited standards. Section 4. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement to the Recreational area(s) within the Plat including fixtures and personal property related thereto, provided that any such assessment shall have the assent of 51 percent of the members of the Association who are voting in person or by proxy at a meeting held duly called for this purpose. Any capital improvements, which exceed $15,000, must be approved by 51 percent of the Owners. Section 5. Special Assessments for Legal Fees and Damages. In addition to the special assessment authorized in Section 4, the Declarant or the Association may levy in any assessment year a special assessment for the purpose of defraying, in whole or in part, (1) legal fees and costs incurred in any action in which the Association is a party, (2) legal fees and costs incurred in any action in which a member of either the Board or the Architectural Control Committee is named as a party as a result of a decision made or action performed while acting in behalf of the Homeowners' Association, or (3) any other reasonable expenses incurred by the Homeowners' Association. This assessment shall require the consent of 51 percent of the Association who are voting in person or by proxy at a meeting duly called for this purpose. Section 6. Notice and Quorum for Any Action Authorized Under Section 4 and 5. Written notice of any meeting called for the purpose of taking any action authorized under Sections 4 and 5 of this Article shall be sent to all members not less than 30 days and nor more than 60 days in advance of the meeting.At the first meeting called, the presence of 51 percent of the members of the Association or of proxies entitled to cast 51 percent of the votes of the Association shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same 8 • notice requirement; the required quorum at the subsequent meeting shall be one-half of the required quorum at the preceding meeting. Section 7. Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots. Section 8. _ Date of Commencement of Annual Assessment, Due Dates. The annual assessments described in this Article shall commence on January 1, 2005. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. Written notice of the Quarterly assessment shall be sent to every Owner subject to such assessments. The Board of Directors shall establish the due date. The Association shall, upon demand and for reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessment on a specific Lot has been paid. A properly executed certificate of the Association as to the status of assessments on a Lot is binding upon the Association as of the date of its issuance. Section 9.Effect of Non-Payment of Assessments: Remedies of the Association. Any assessment not paid within 30 days after the due date shall bear interest at the rate of 12 percent per annum. Each owner hereby expressly vests in the Association or its agents the right and power to bring all actions against such Owners personally for the collection of such assessments as debts and to enforce lien rights of the Association by all methods available for the enforcement of such liens, including foreclosure by an action brought in the name of the Association in like manner as a mortgage of real property. Such Owner hereby expressly grants the Association the power of sale in connection with such liens. The liens provided for in this section shall be in favor of the Association and shall be for the benefit of the Association. The Association shall have the power to bid in an interest at foreclosure sale and to acquire, hold, lease, mortgage and convey the same. The Owner is responsible for payment of all attorneys' fees incurred in collecting past due assessments or enforcing the terms of assessment liens. No Owner may waive or otherwise escape liability for the assessments provided herein by non-use of the Recreational area(s) or abandonment of his Lot. The Association shall have the right to suspend the voting rights of an Owner for any period during which any assessment against the Lot remains unpaid and for a period not to exceed 60 days for any infraction of the of the terms of either this Declaration, the Articles or the Bylaws of the Association. Section 10. Subordination of the Lien to Mortgage. The lien for assessments, provided for in this Article, shall be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to a mortgage foreclosure, or any proceeding in lieu thereof, shall extinguish the lien created pursuant to this Article as to payments, which become due prior to such sale or transfer. No sale or transfer, however, shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. 9 • Section 11. Exempt Property. All property dedicated to and accepted by local public authority shall be exempt from assessments provided by this Article. ARTICLE VI MAINTENANCE OF LOTS Section 1. Exterior Maintenance by Owner.Owners shall maintain each Lot and Residence in a neat, clean and attractive condition at all times. (a). Street Trees. The street trees planted within and / or abutting individual Lots shall be owned and maintained by the Owners of said Lots and the trees planted within and / or abutting the private and public tracts within the Plat shall be owned and maintained by the ELMHURST Homeowners Association. (b). Refuse. All Lots shall be kept free of debris. All refuse shall be kept in sanitary containers screened from view of any Lot in the Plat;the containers shall be regularly, emptied and the contents disposed of off the Properties. No grass cuttings, leaves, limbs, branches, and other debris from vegetation shall be dumped or allowed to accumulate on any part of the Properties, except that a regularly tended compost heap shall be permitted if the compost heap is concealed from view of any of the properties. (c). Storage of goods and Vehicles. 1.) Owners may not store goods or equipment in open view of any Lot, or portion of the Community, or allow others to do so. No house trailer, camping trailer, boat trailer, hauling trailer, boat or accessories thereto, truck or commercial vehicle (larger than one ton), self contained motorized recreational vehicle, or other type of recreational vehicle or equipment, may be parked or stored in ELMHURST unless such parking or storage is within the garage area of any Lot or is suitable screened from view in accordance with the requirements of the Architectural Control Committee, except that any such vehicle may be otherwise parked as a temporary expedient for loading, delivery, or emergency, but not over night. This restriction, however, shall not restrict trucks or other commercial vehicles, which are necessary for the construction or for the maintenance of any portion of ELMHURST or any improvements located thereon. No overnight"on street" shall be permitted on any roadway or street in ELMHURST where such parking is prohibited by King County, The City of Renton or where the Board has prohibited such parking. No overnight "on street" parking of any personal passenger vehicles shall be allowed on any road, shoulder, within any private road right of ways, cul-de-sac, turnaround or their prospective right of ways at ELMHURST Personal passenger vehicles are defined as but not limited to autos, vans,trucks, motorcycles and all similar vehicles used primarily and regularly for transportation by the occupants of the lot or their guests. 2.) Except as herein provided, no abandoned or inoperable automobiles or vehicles of any kind shall be stored or parked in ELMHURST. An "abandoned or 10 inoperable vehicle" shall be defined as any automobile, truck, motorcycle, or other similar vehicle, which has not been driven under its own propulsion for a period of (48) hours or longer, or does not have an operable propulsion system installed therein, or which is not currently licensed and registered. 3.) In the event the Association shall determine that a vehicle is parked or stored in violation of subsections (1) or (2) of this section, then a written notice describing said vehicle shall be personally delivered to the owner thereof(if such owner can be reasonably ascertained) or shall be conspicuously placed upon the vehicle (if the owner thereof cannot be reasonably ascertained), and if the vehicle is not removed within twenty-four (24) hours thereafter, the Association shall have the right to remove the vehicle at the sole expense of the owner thereof. 4.) No activity such as, but not limited to, maintenance, repair, rebuilding, dismantling, repainting or servicing of any vehicles, trailers or boats, may be performed or conducted in ELMHURST unless it is done within completely enclosed structure(s) which screen the sight and sound of the activity from the street and from adjoining property. The forgoing restriction shall not be deemed to prevent, on a lot, washing and polishing of any motor vehicle, boat, trailer, motor driven cycle, or other vehicle, together with those activities normally incident and necessary to such washing and polishing. (d). Temporary Parking by Owners. This section does not prevent Owners from parking passenger automobiles and trucks on driveways when the Owners are out of town. Section 2. Easement for Enforcement Purposes. Owners hereby irrevocably grant to the Association permission for purposes of going upon the Lots of Owners for the purpose of removing vehicles or other similar objects, which are parked or stored in violation of the terms of this Declaration. Section 3. Lot Maintenance by the Association. In the event that an owner shall fail to maintain the exterior of his premises and the improvements situated thereon in a manner consistent with maintenance standards of the ELMHURST community, the Board shall, upon receipt of written complaint of any Owner, and subsequent investigation which verifies that complaint, have the right through its agents and employees to enter upon the offending Owner's Lot and repair, maintain and restore the Lot and the exterior of the improvements on that Lot if the owner shall fail to respond in a manner satisfactory to the Board within 45 days after mailing of adequate notice by certified mail to the last known address of the Owner. The cost of such repair, maintenance or restoration shall be assessed against the Lot, and the Board shall have the right to cause to be recorded a notice of lien for labor and materials furnished, which lien may be enforced in the manner provided by law. In the event that the estimated cost of such repair should exceed one-half of one percent of the assessed value of the Lot and improvements on that Lot, the Board shall be required to have the assent of 51 percent of the members before undertaking such repairs. 11 Section 4. Construction Exemption. This Article does not apply to the construction activities, storage of construction materials, construction debris, or the use and parking of construction vehicles by the Declarant or its contractors during the Development period. ARTICLE VII HOMEOWNERS ASSOCIATION Section 1. Nonprofit Organization. The Association is a nonprofit corporation under the laws of the State of Washington. Section 2. Membership. Every Owner of any Lot shall become a member of the Association. Membership shall be appurtenant to the Lot and may not be separated from ownership of any Lot shall not be assigned or conveyed in any way except upon the transfer of title to said Lot and then only to the transferee of title to the Lot. All Owners shall have the rights and duties specified in this Declaration, the Article and the Bylaws of the Association. Section 3. Voting rights. Owners, including the Declarant, shall be entitled to one vote for each Lot owned. When more than one person or entity owns an interest in any Lot, the vote for that Lot shall be exercised as the Owners decide to exercise that vote, but in no event shall more than one vote be cast with respect to any Lot nor shall any vote be divided. The voting rights of any Owner may be suspended as provided for in this Declaration, the Article and the Bylaws of the Association. Section 4. Meetings. Meetings shall be conducted in accordance with the Bylaws of the ELMHURST Homeowners'Association and RCW 64.38. ARTICLE VIII MANAGEMENT BY BOARD Section 1. Expiration of the Development Period. Upon expiration of the Declarant's management authority under Article III, all administrative power and authority shall vest in a Board of three directors who must be owners. The Association, by amendment of the Covenants, may increase the number of directors. All Board positions shall be open for election at the first annual meeting after termination of the Development Period. At the first meeting of the permanent Board of Directors, the new Board shall adopt Bylaws. The Board will make copies of the Bylaws available to Lot Owners upon request. Section 2. Terms. The terms of the Board are defined in the Bylaws. Section 3. Powers of the Board. All powers of the Board must be exercised in accord with the Bylaws. The Board, for the benefit of all the Properties and the Lot Owners, shall enforce the provisions of this Declaration and the Bylaws. In addition to 12 the duties and the powers imposed by the Bylaws and any resolution of the Association that may be hereafter adopted, the Board shall have the power and be responsible for the following, in way of explanation but not limited to: (a) Insurance. Obtain policies of general liability insurance. (b) Legal and Accounting Services. Obtain legal and accounting services if necessary for the administration of the Association affairs, administration of the Recreational area(s)within the Plat, or enforcement of this Declaration. (c) Maintenance of Lots. If necessary, maintain any Lot if such maintenance is reasonably necessary in the judgment of the Board to preserve the appearance and value of the Properties or Lot. The Board may authorize such maintenance activities if the Owner or Owners of the Lot have failed or refuse to perform maintenance within a reasonable time after written notice of the necessity of such maintenance has been delivered by the Board to the Owner or Owners of such Lot, provided that the Board shall levy a special assessment against the Owner or Owners of such Lot for the cost of such maintenance. (d) Discharge of Liens. The Board may also pay any amount necessary to discharge any lien or encumbrance levied against the entire Properties or any part thereof, which is claimed or may, in the opinion of the Board, constitute a lien against the Properties or against the Recreational area(s) within the Plat rather than merely against the interest therein of particular Owners. Where one or more Owners are responsible for the existence of such liens, they shall be jointly and severally liable for the cost of discharging it and any costs or expenses, including reasonable attorney's fees and the costs of title search incurred by the Board by reason of such lien or liens. Such fees and costs shall be assessed against the Owner or Owners and the Lot responsible to the extent of their responsibility. (e)Security. Pay all costs deemed appropriate by the Board to ensure adequate security for the Lots constituting the residential community created on the Properties. (f) Right to Contract. Have the exclusive right to contract for all goods and services, maintenance, and capital improvements provided, however, that such right of contract shall be subject to Association approval. (g) Right of Entry. Enter any Lot when reasonably necessary, in the event of emergencies or in connection with any maintenance, landscaping or construction for which the Board is responsible. Except in cases of emergencies, the Board, its agents or employees shall attempt to give notice to the Owner or occupant of any Lot 24 hours prior to such entry. Such entry must be made with as little inconvenience to the Owner as practicable, and any damage caused thereby shall be repaired by the Board if the entry was due to an emergency(unless the emergency was caused by the Owner of the Lot entered, in which case the cost shall be specially assessed to the Lot) If the repairs 13 or maintenance activity were necessitated by the Owner of the Lot entered, in which case the cost shall be specially assessed to that Lot. If another Owner of another Lot caused the emergency or the need for maintenance or repair, the cost thereof shall be specially assessed against the Owner of the other Lot. (h) Promulgation of Rules. Adopt and publish rules and regulations governing the members and their guests and establish penalties for any infraction thereof. (i) Declaration of Vacancies. Declare the office of a member of the Board to be vacant in the event that a member of the Board is absent from three consecutive regular meetings of the Board. (j) Employment of Manager. Employ a manager, an independent contractor, or such other employees, as the Board deems necessary and describe the duties of such employees. (k) Payment for Goods and Services. Pay for all goods and services required for the proper functioning of the Recreational area(s) within the Plat and the Association. (I) Impose Assessments. Impose annual and special assessments. (m) Bank Account. Open a bank account on behalf of the Association and designate the signatories required. (n) Legal Actions. Commence legal actions for the enforcement of these covenants or any other legal action that the Board of Directors deems necessary for the protection of the Plat. The board also has the authority to defend against legal actions initiated against the Association. (o) Exercise of Powers. Duties and Authority. Exercise for the Association all powers, duties and authority vested in or delegated to the Association and not reserved to the membership by other provisions of the Bylaws, Articles of Incorporation, or this Declaration. The Board shall have all powers and authority permitted to it under this Declaration and the Bylaws. However, nothing herein contained shall be construed to give the Board authority to conduct a business for profit on behalf of all the Owners or any of them. ARTICLE IX LAND USE RESTRICTIONS Section 1. Residential Restrictions. All lots within the Properties shall be used solely for private single-family residential purposes. Each residence must have a private enclosed car shelter for not less than two cars. No single-family structure shall be altered to provide residence for more than one family. No Lot in ELMHURST shall be further divided. 14 Section 2. Property Use Restrictions. No Lot shall be used in a fashion that unreasonably interferes with the other Owners' right to use and enjoy their respective Lots. The Board, the Committee designated by it, or the Declarant during the Development Period, shall determine whether any given use of a Lot unreasonably interferes with those rights; such determinations shall be conclusive. Section 3. Prohibition Of Nuisances and Untidy Conditions. No noxious or offensive activity or condition shall be conducted on any Lot nor in any common areas or Recreational area(s), nor shall anything be done or maintained on the Properties which may be or become an activity or condition which unreasonably interferes with the right of other Owners to use and enjoy any part of the Properties. No untidy or unsightly condition shall be maintained on any property. Untidy conditions shall include, but are not limited to, publicly visible storage of wood, boats, trailers recreational vehicles and disabled vehicles of any kind. Section 4. Fences, Walls & Shrubs. Fences, wall or shrubs are permitted to delineate the lot lines of each Lot, subject to (1)The approval of the Architectural Control Committee and (2) determination whether such fences, walls or shrubs would interfere with utility easements reflected on the face of the Plat and other easements elsewhere recorded. No barbed wire or corrugated fiberglass fences shall be erected on any Lot. All fences, including chain link fences, open and solid, are to meet the standards set by the Committee and must be approved by the Committee prior to construction or installation. No fences shall be constructed in the front yard or front yard setbacks. Fences or rails shall be erected and maintained at the top of any area where they create a vertical or nearly vertical retaining wall or slope over three feet(3'). Section 5. Temporary Structures. No structure of a temporary character or trailer, recreational vehicle, basement, tent, shack, garage, barn, or other outbuildings shall be used on any Lot at any time as a residence, either temporarily or permanently. No vehicles parked in public right-of-way may be used temporarily or permanently for residential purposes except as provided in Article VI. Section 6, Mining. No oil drilling, oil development operations, oil refining, quarrying, or mining operation of any kind shall be permitted on or in any Lot, nor shall oil wells, tanks, tunnels, mineral excavation or shafts be permitted on or in any Lot. No derricks or other structure designed for use in boring for oil or natural gas shall be erected, maintained or permitted upon any Lot. Oil storage for residential heating purposes is permissible if the storage tank is buried. Section 7. Signs. No signs, billboards, or other advertising structure or device shall be displayed to the public view on any Lot except one sign not to exceed five square feet in area may be placed on a Lot to offer the property for sale or rent.A builder to advertise the property during the construction and sale period also may use signs. Political yard signs of a temporary nature will be allowed on Lots during campaign periods. Within five days of the occurrence of the election, such signs must be removed 15 from Lots. The Board may cause any sign placed on Properties in violation of this provision to be removed and destroyed. Section 8. Animals. No animals other than dogs, cats, caged birds, tanked fish, and other conventional small household pets may be kept on Lots. Dogs shall not be allowed to run at large. The Owner or other person accompanying the animal shall remove animal waste deposited on lawns, sidewalks, trails, Recreational area(s) and rights-of-way. All animal pens and enclosures must be approved by the Committee prior to construction and shall be kept clean and odor free at all times. If the investigation of the Board indicates that animals are kept in violation of this section, the Board will give the Owner 10 days' written notice of the violation. The Owner must remedy such violations within 10 days. Failure to comply with the written notice will result in a fine of $25 per day. The Association shall be entitled to attorneys' fees for any action taken to collect such fines in accord with the provisions of Article XIII, Section 4. ARTICLE X BUILDING RESTRICTIONS Section 1. Building Materials. Homeowners who do not have MJF Holdings, Inc. or the contractor MJF Holdings, Inc. designated to construct homes for it ("MJF Holdings, Inc. Contractor) shall be obliged to use materials of a quality equivalent to those materials which MJF Holdings, Inc. Contractor has utilized for the construction of homes in the Plat. If inferior materials are utilized, the Committee will require that such materials be replaced. The (1) grade of materials and (2) price of materials shall be relevant considerations in determining whether the materials are of equivalent quality. Section 2. Permits. No construction or exterior addition or change or alteration of any structure may be started on any portion of the Properties without the Owner first obtaining a building permit and other necessary permits from the proper local government authority and written approval of such permits from the Board, Architectural Control Committee or the Declarant. The Committee must approve the plans for all construction or alteration proposals (see Article XII). Section 3. Codes. All construction must conform to the requirements of the State of Washington, Uniform Bodes (building, mechanical, plumbing) and King County codes and requirements, in force at the commencement of the construction, including the latest revisions thereof. Section 4. Time of Completion. The exterior of any structure, including painting or other suitable finish and initial landscaping, shall be completed within eight months of the beginning of construction so as to present a finished appearance when viewed from any angle. The construction area shall be kept reasonably clean during the construction period. Section 5. Entry for Inspection. Any agent, officer or member of the Board, Committee, or the Declarant may, at any reasonable predetermined hour upon 24 hours 16 notice during the construction or exterior remodeling, enter and Inspect the structure to determine if there has been compliance with the provisions of this Declaration. The above-recited individuals shall not be deemed guilty of trespass for such entry or inspection. There is created an easement over, upon and across the residential Lots for the purpose of making and carrying out such inspections. Section 6. Contractor. No home may be constructed on any Lot other than by a contractor licensed as general contractor under the statutes of the State of Washington without the prior approval of the Committee. ARTICLE XI UTILITIES Section 1. Antennas. No radio or television antennas, transmitters or parabolic reflectors (satellite dish antennae)shall be permitted unless approved by the Committee. ARTICLE XII ARCHITECTURAL CONTROL Section 1. Architectural Control Committee. (Committee"). Upon termination of the Development Period, the Board shall appoint a Committee. The Committee shall consist of not less than three and not more than five members. It is not a requirement that members of the Committee be (1)Owners or(2) members of the Association. During the Development Period, the Declarant may elect to exercise and perform the functions of the Committee. If the Declarant elects not to perform this function, or at any time elects to no longer perform this function, the Declarant or the Board shall appoint the Committee to function as herein provided. After termination of the Development Period, the Board shall perform the functions of the Committee until such time as the Board shall appoint and designate the Committee. The Committee shall be appointed within one month of the election of the Board following the termination of the Development Period. Section 2. Jurisdiction and Purpose. The Committee or the Declarant shall review proposed plans and specifications for Residences, accessory structures (e.g., garden sheds, tools sheds, doll houses, tree houses, gazebos, and playground equipment), fences, walls, appurtenant recreational facilities (e.g., hot tubs, spas, basketball courts, basketball hoops, tennis courts, swimming pools, bath houses, animal pens, or enclosures), or other exterior structures to be placed upon the Properties. No exterior addition or structural alteration may be made until plans and specifications showing the nature, kind, shape, height, materials, and location of the structure or alteration have been submitted to and approved, in writing, by the Committee. The Committee also shall review proposals to change the exterior color of homes in the Plat. The Committee shall determine whether the exterior design and location of the proposed structure, alteration, or color change harmonizes with the (1) surrounding structures, (2) surrounding natural and built environment, and (3) aesthetic character of other homes in the Plat. 17 Section 3. Membership. The Board shall designate the Committee. An election to fill either a newly created position on the Committee or a vacancy on the Committee requires the vote of the majority of the entire Board. However, the Board is not obligated to fill a vacancy on the Committee unless the membership of the Committee numbers less than three persons. Section 4. Designation of a Representative. The Committee may unanimously designate one or more of its members or a third party to act on behalf of the Committee or a Committee member with respect to both ministerial matters and discretionary judgments. Section 5. Donation of Time. No member of the Committee shall be entitled to any compensation for services performed on behalf of the Committee. Committee members or representatives shall have no financial liability resulting from Committee actions. Section 6. Address of the Committee. The address of the Committee shall be the registered office address of the Association. Section 7. Voting. Committee decisions shall be determined by a majority vote by the members of the Committee. Section 8. Submission of Plans. All plans and specifications required to be submitted to the Committee shall be submitted by mail to the address of the Committee in duplicate. The written submission shall contain the name and address of the Owner submitting the plans and specifications, identity of the Lot involved, and the following information about the proposed structure: (a)The location of the structure upon the Lot; (b) The elevation of the structure with reference to the existing and finished Lot grade; (c)The general design; (d)The interior layout; (e)The exterior finish materials and color, including roof materials; (f)The landscape plan; (g) Other information which may be required in order to determine whether the structure conforms to the standards articulated in the Declaration and the standards employed by the Committee in evaluating development proposals. 18 Section 9. Plan Check Fee. All individuals submitting plans to the Committee shall be obliged to pay a reasonable plan check fee to cover the administrative costs of reviewing such development proposals. It will be necessary to pay the plan check fee upon submitting plans and specifications to the Committee. A plan check fee of$100 will be charged to review plans and specifications for Residences. A fee of $25 will be charged for the review of other structures. Section 10. Evaluating Development Proposals. The Committee shall have the authority to establish aesthetic standards for evaluating development proposals. In addition to such standards, in evaluating development proposals, the Committee shall determine whether the external design, color, building materials, appearance, height, configuration, and landscaping of the proposed structure harmonize with (1) the various features of the natural and built environment, (2) the aesthetic character of the other homes in ELMHURST, and (3) any other factors which affect the desirability or suitability of a proposed structure or alteration. The Committee shall decline to approve any design, which fails to meet the above-recited standards and any other aesthetic standards promulgated by the Committee. The Committee will not approve temporary or non-permanent structures. Committee determinations may be amended by a majority vote of Committee members. Section 11. Exclusions. The Committee is not required to review plans and specifications for homes constructed by MJF Holdings, Inc., or MJF Holdings, Inc. Contractor. Section 12. Approval Procedures. Within 30 days after the receipt of plans and specifications, the Committee shall approve or disapprove the proposed structure. The Committee may decline to approve plans and specifications, which, in its opinion, do not conform to restrictions articulated in this Declaration or to its aesthetic standards. The Committee shall indicate its approval or disapproval on one of the copies of the plans and specifications provided by the applicant and shall return the plans and specifications to the address shown on the plans and specifications. Section 13. Compliance with Codes. In all cases, ultimate responsibility for satisfying all local building codes and requirements rests with the Owner and contractor employed by the Owner. The Committee has no responsibility for ensuring that plans and specifications, which it reviews, comply with local building codes and requirements. The Committee shall be held harmless in the event that a structure, which it authorizes, fails to comply with relevant building and zoning requirements. No person on the Committee or acting on behalf of the Committee shall be held responsible for any defect in any plans or specifications which are approved by the Committee nor shall any member of the Committee or any person acting on behalf of the Committee be held responsible for any defect in a structure which was built pursuant to plans and specifications approved by the Committee. 19 Section 14. Variation. The Committee shall have the authority to approve plans and specifications, which do not conform to these restrictions in order to (1) overcome practical difficulties or(2) prevent undue hardship from being imposed on an Owner as a result of applying these restrictions. However, such variations may only be approved in the event that the variation will not (1) detrimentally impact on the overall appearance of the development, (2) impair the attractive development of the subdivision or (3) adversely affect the character of nearby Lots. Granting such variations shall only be granted if the Committee determines that the variation would further the purposes and intent of these restrictions. Variations shall only be granted in extraordinary circumstances. Section 15. Enforcement. In any judicial action to enforce a determination of the Committee, the losing party shall pay the prevailing party's attorneys' fees, expert witness fees, and other costs incurred in connection with such legal action or appeal. ARTICLE XIII GENERAL PROVISION Section 1. Covenants Running with the Land. These covenants are to run with the land and be binding on all parties and persons claiming under them for a period of 30 years from the date these covenants are recorded, after which time the covenants shall be automatically extended for successive period of 10 years unless an instrument signed by a majority of the individuals then owning Lots has been recorded which reflects their intent to amend the covenants in whole or in part. Section 2. Amendment. This Declaration and the Bylaws may be amended during the initial 30-year period if 51 percent of the members vote to amend particular provisions of either instrument except for those items in Article IV Sections 3 and 5 may not be amended as it relates to storm drainage facilities, street lighting or common improvements, unless the assignee and the City of Renton consent in writing. This Declaration may be amended during the Development Period by any instrument signed by both the Declarant and the Owners of 51 percent of the Lots, including those owned by the Declarant. The provisions expressly referring to the Declarant may not be amended without the Declarant's approval. All amendments must be filed with the office of the King County Records Department or its successor agency. Section 3. Enforcement. The Association,the Board, or any Owner shall have the right to enforce, by any legal proceeding, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Section 4. Attorneys' Fees. In the event that it is necessary to seek the services of an attorney in order to enforce any(1) provision of this Declaration or (2) lien created pursuant to the authority of this Declaration, the individual against whom enforcement is sought shall be obliged to pay any attorneys'fees incurred. If the Owner fails to pay such fees within 60 days, such fees shall become a lien against the Owner's Lot. 20 In any legal action commenced in order to enforce the provisions of this Declaration, the prevailing party shall be entitled to recover all reasonable attorneys' fees and expert witness fees incurred in order to enforce the provisions of this Declaration.The prevailing party shall also be entitled to recover all costs. Section 5. Successors and Assigns. The covenants, restrictions and conditions articulated in this Declaration shall run with the land and shall accordingly be binding on all successors and assigns. Section 6. Severability. The invalidity of any one or more phrases, clauses, sentences, paragraphs or sections hereof shall not affect the remaining portions of this Declaration or any part thereof. In the event that one or more of the phrases, clauses, sentences, paragraphs or sections contained herein should be invalid; this Declaration shall be construed as if the invalid phrase, clause, sentence, paragraph or section had not been inserted. IN WITNESS WHEREOF the undersigned, being the Declarant herein, has hereunto set his hand and seal this / z' day of December, 2005. Declarant MJF Holdings, Inc., a Washington corporation By: 6/ 1/14 to, -712441 Michael J. Feuert.rn President STATE OF WASHINGTON )ss, COUNTY OF KING On this _L!! day of December, 2005, before me, the undersigned, a notary public in and for the State of Washington, personally appeared Michael J. Feuerborn, President of MJF Holdings, Inc, a Washington corporation, the corporation that executed the within and foregoing instrument, and he acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he is authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation. 21 4 • WITNESS my hand and official se. her-/.f e e day and year first written above. Notary Public -- -- - ------- ----_- State of Washington -- - itch + RSaN__(Printed Name) ALFRED E CARSON N.tary Public in and for the State of MY COMMISSION EXPIRES ' Washington OCTOBER 29,2008 ; Residing at:___PICA.Ce_-�0, My commission expires:_QtT CONSENT OF DEED OF TRUST BENEFICIARY EXCHANGE COUNSEL, INC., a Washington corporation, the holder of a deed of trust beneficiary's interest in the land hereby subdivided (King County Recording No. 20050707001746), hereby consents to the above-stated DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR ELMHURST. EXCHANGE COUNSEL, INC., a W. hington corporation By: Mark E. Hodges, President STATE OF WASHINGTON) ) ss. COUNTY OF_KIN, -_) I certify that I know or have satisfactory evidence that MARK E. HODGES is the person who appeared before me and acknowledged that he signed the instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as President of EXCHANGE COUNSEL, INC., a Washington corporation, to be the free and voluntary act of such corporation for the uses and purposes mentioned in the instrument. Dated: De-c.emblzr /5- .2t,05 • 4P' • ' NOTARY PUBLIC Signature n,.. j� 1 STATE OF WASHINGTON ►]gid MICHELE J. ROBERTS Name (Print) ; My Appointment Expires Nov.15,2006 Notary Public j�� Title ! 5 , , 1.5- 421)0 6 My Appointment Expires C:\CF\2009\074\CC&Rs\CCRS ELMHURST Final(9-7-05).doc 22