HomeMy WebLinkAboutL_Draft_Legal_Documents_190917_V1.pdf53383827.1
FOSTER PEPPER PLLC
Attention: Gary Ackerman
1111 Third Avenue, Suite 3000
Seattle, Washington 98101
DECLARATION
OF
RESTRICTIVE COVENANTS, CONDITIONS,
RESTRICTIONS, RESERVATIONS AND EASEMENTS
FOR
CANOPY
Grantor/Declarant: BLUE FERN DEVELOPMENT, LLC,
a Washington limited liability company
Additional names on pg. N/A
Grantee: BLUE FERN DEVELOPMENT, LLC,
a Washington limited liability company
Additional names on pg. N/A
Legal Description: ________________________________
Official legal description on Exhibit A
Tax Parcel ID#: ____________________________
i
53383827.1
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ............................................................................................................1
Section 1.1 Definitions....................................................................................................1
ARTICLE 2 COMMON ELEMENTS .............................................................................................4
Section 2.1 Description of Common Elements ...............................................................4
Section 2.2 Description of Limited Common Elements .................................................4
Section 2.3 Dedication of Common Elements ................................................................4
Section 2.4 Use of Common Elements ...........................................................................4
Section 2.5 Delegation of Use ........................................................................................5
ARTICLE 3 OWNERS ASSOCIATION .........................................................................................5
Section 3.1 Establishment ...............................................................................................5
Section 3.2 Form of Association .....................................................................................5
Section 3.3 Articles and Bylaws .....................................................................................5
Section 3.4 Board of Directors........................................................................................5
Section 3.5 Membership and Voting Rights ....................................................................6
Section 3.6 Transfer of Membership ...............................................................................6
Section 3.7 Books and Records ......................................................................................6
Section 3.8 Inspection of Association Documents, Books, and Records .......................6
ARTICLE 4 MANAGEMENT OF THE ASSOCIATION ..............................................................6
Section 4.1 Administration of the Property ....................................................................6
Section 4.2 Powers of the Association ............................................................................7
ARTICLE 5 ARCHITECTURAL CONTROL ...............................................................................8
Section 5.1 Construction and Exterior Alterations or Repairs ........................................8
ARTICLE 6 USE RESTRICTIONS AND MAINTENANCE OBLIGATIONS ...........................10
Section 6.1 Maintenance of Homes and Lots ...............................................................10
Section 6.2 Maintenance of Common Maintenance Areas. ..........................................11
Section 6.3 Damage to Common Maintenance Areas ..................................................11
Section 6.4 Residential Use; Timesharing Prohibited ..................................................11
Section 6.5 No Nuisances .............................................................................................11
Section 6.6 Quiet Enjoyment ........................................................................................12
Section 6.7 Garbage and Trash Removal ......................................................................12
Section 6.8 Animal Restrictions ...................................................................................12
Section 6.9 Signs ...........................................................................................................12
Section 6.10 Rental .........................................................................................................12
Section 6.11 Zoning Regulations ....................................................................................13
Section 6.12 Temporary Dwelling ..................................................................................13
Section 6.13 Oil and Mining Operations ........................................................................13
Section 6.14 Use and Disposal of Hazardous Substances ..............................................13
Section 6.15 Exterior Add-ons ........................................................................................13
Section 6.16 Exterior Changes ........................................................................................13
Section 6.17 Window Coverings ....................................................................................14
ii
53383827.1
Section 6.18 Protected Antennas ....................................................................................14
Section 6.19 Unsightly Items ..........................................................................................14
Section 6.20 Fences ........................................................................................................14
Section 6.21 Effect on Insurance ....................................................................................14
ARTICLE 7 ASSESSMENTS .......................................................................................................14
Section 7.1 Creation of the Lien and Personal Obligation of Assessments ..................14
Section 7.2 Allocation of Assessments .........................................................................15
Section 7.3 Association Budgets...................................................................................15
Section 7.4 Ratification of Budget ................................................................................15
Section 7.5 Supplemental Budget .................................................................................15
Section 7.6 Specially Allocated Expenses ....................................................................15
Section 7.7 Manner and Time of Payment; Late Charges.............................................15
Section 7.8 Initial Contribution to Working Capital .....................................................16
Section 7.9 Accounts ....................................................................................................16
Section 7.10 Lien ............................................................................................................16
Section 7.11 Waiver of Homestead .................................................................................16
Section 7.12 Special Assessments...................................................................................16
Section 7.13 Financial Statements; Records ...................................................................16
Section 7.14 Certificate of Assessment ...........................................................................17
Section 7.15 Foreclosure of Assessment Lien; Attorneys Fees and Costs ......................17
Section 7.16 Curing of Default .......................................................................................17
ARTICLE 8 EASEMENTS ...........................................................................................................17
Section 8.1 Utility Easements .......................................................................................17
Section 8.2 Easement for Encroachments .....................................................................18
Section 8.3 Association Functions ................................................................................18
ARTICLE 9 INSURANCE ............................................................................................................18
Section 9.1 Association Insurance ................................................................................18
Section 9.2 Owners’ Insurance .....................................................................................18
ARTICLE 10 COMPLIANCE AND ENFORCEMENT ...............................................................19
Section 10.1 Enforcement ...............................................................................................19
Section 10.2 No Waiver of Strict Performance ...............................................................19
Section 10.3 Remedies Cumulative ................................................................................19
ARTICL E 11 LIMITATION OF LIABILITY ...............................................................................20
Section 11.1 No Personal Liability .................................................................................20
Section 11.2 Indemnification ..........................................................................................20
ARTICLE 12 MORTGAGEE PROTECTION ..............................................................................20
Section 12.1 Priority of Mortgages .................................................................................20
Section 12.2 Effect of Declaration Amendments ............................................................20
Section 12.3 Rights of Lien Holders ...............................................................................21
Section 12.4 Copies of Notices .......................................................................................21
Section 12.5 Furnishing of Documents ...........................................................................21
iii
53383827.1
ARTICLE 13 ABANDONMENT OF SUBDIVISION STATUS ..................................................21
Section 13.1 Duration of Covenants ...............................................................................21
Section 13.2 Abandonment of Subdivision Status ..........................................................21
ARTICLE 14 AMENDMENT OF DECLARATION OR PLAT ...................................................21
Section 14.1 Declaration Amendment ............................................................................21
Section 14.3 Amendments to Conform to Construction .................................................22
ARTICLE 15 MISCELLANEOUS................................................................................................22
Section 15.1 Notices .......................................................................................................22
Section 15.2 Conveyance: Notice Required ...................................................................22
Section 15.3 Successors and Assigns ..............................................................................23
Section 15.4 Joint and Several Liability .........................................................................23
Section 15.5 Mortgagee’s Acceptance ............................................................................23
Section 15.6 Severability ................................................................................................23
Section 15.7 Construction ...............................................................................................23
Section 15.8 Captions .....................................................................................................23
Section 15.9 Effective Date ............................................................................................23
EXHIBIT A Description of Property
1
53383827.1
DECLARATION
OF
RESTRICTIVE COVENANTS, CONDITIONS,
RESTRICTIONS, RESERVATIONS AND EASEMENTS
FOR
CANOPY, A PLAT COMMUNITY
This Declaration of Covenants, Conditions, Restrictions, and Reservations and Easements
for Canopy, a plat community, is made as of this ____ day of _______________, 2019, by Blue
Fern Development, LLC, a Washington limited liability company (“Declarant”).
RECITALS
A. Declarant owns certain real property located at _______________ in the City of
Renton, King County, Washington, which is legally described in Exhibit A attached hereto (the
“Property”).
B. Declarant is developing the Property as a townhouse development and, in
connection therewith, for the benefit and protection of the Property and to enhance its value and
attractiveness, Declarant provides herein for a comprehensive system of land-use and building
controls within the Property.
SUBMISSION OF THE PROPERTY TO THIS DECLARATION
Declarant, being the sole owner of the Property, hereby makes this Declaration for the
purpose of submitting the Property to this Declaration and the Act, and declares that the Property
described above shall be held, sold, conveyed, encumbered, leased, rented, occupied and
improved subject to the following covenants, conditions, restrictions, reservations, grants of
easement rights, rights of way, liens, charges and equitable servitudes, which are for the purpose
of protecting the value and desirability of the Property and shall be binding on all parties having
any right, title or interest in the Property or any part thereof, and shall inure to the benefit of each
Owner thereof. This Declaration shall run with the land and bind Declarant, its successors and
assigns, all subsequent owners of the Property or any part thereof, together with their grantees,
successors, heirs, executors, administrators, devisees, or assigns. Any conveyance, transfer, sale,
assignment, lease, or sublease of a Lot shall and hereby is deemed to incorporate by reference all
provisions of this Declaration. The provisions of this Declaration shall be enforceable by
Declarant, any Owner, the Association, and any first Mortgagee of any Lot.
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. For the purposes of this Declaration and any amendments
hereto, the following definitions shall apply.
“Act” means the Washington Uniform Common Interest Ownership Act, RCW 64.90.
“Articles” mean the articles of incorporation of the Association, as defined below.
2
53383827.1
“Assessments” mean all sums chargeable by the Association against a Lot, including,
without limitation: (a) general and special Assessments for Common Expenses and Specially
Allocated Expenses; (b) charges and fines imposed by the Association; (c) interest and late
charges on any delinquent account; and (d) costs of collection, including reasonable attorneys’
fees, incurred by the Association in connection with the collection of a delinquent Owner’s
account.
“Association” means Canopy Owners Association, a Washington nonprofit corporation,
as described more fully in Article 3, and its successors and assigns.
“Board” means the board of directors of the Association.
“Bylaws” mean the bylaws of the Association as they may from time to time be amended.
“City” means the City of Renton, State of Washington.
“Common Elements” means portions of the Plat described in Section 2.1.
“Common Expenses” shall mean all expenses and liabilities of the Association, including,
but not limited to, maintenance, repair, and replacement of the Common Maintenance Areas, the
expenses of the Association relating to insurance and administration of the Association.
“Common Expense Liability” shall mean the liability for allocation of Common
Expenses to the Owners of Lots, which shall be equally among the Lots.
“Common Maintenance Areas” means the portions of the Property described in Section
6.2 for which the Association has maintenance responsibility.
“County” shall mean the King County, State of Washington.
“Declarant” shall mean Blue Fern Development, LLC, a Washington limited liability
company, and its successors and assigns if such successors or assigns should be specifically
assigned the rights and duties of Declarant by written instrument in recordable form.
“Declaration” shall mean this Declaration of Covenants, Conditions, Restrictions and
Reservations and Easements for Canopy, a plat community, and any amendments thereto.
“First Mortgagee” means, with respect to each Lot, the Mortgagee whose Mortgage on
the Lot is prior to all other Mortgages on the Lot.
“Home” means a dwelling and any associated buildings constructed on a Lot.
“Limited Common Elements” means those Common Elements the exclusive use of which
is restricted to one or more, but fewer than all, of the Lot Owners, as described in ___________.
“Lot ” means any of Lots 1 - 56 shown on the Plat. Ownership of a Lot shall include
ownership of the Home and other Structures and improvements now or hereafter constructed on
the Lot.
3
53383827.1
“Managing Agent” means the person designated by the Board of the Association as the
management company for the Association.
“Member” means a person entitled to membership in the Association pursuant to Section
3.5.
“Mortgage” means a recorded mortgage or deed of trust that creates a lien against a Lot
and shall also mean a real estate contract for the sale of a Lot.
“Mortgagee” means the beneficial owner, or the designee of the beneficial owner, of an
encumbrance on a Lot created by a Mortgage and shall also mean the vendor, or the designee of
vendor, of a real estate contract for the sale of a Lot. For the purpose of determining the
percentage of First Mortgagees approving a proposed decision or course of action, a Mortgagee
shall be deemed a separate Mortgagee for each Lot on which it holds a Mortgage which
constitutes a first lien on the Lot. Mortgagees shall have the same voting rights as the Owners of
any Lot subject to a Mortgage.
“Notice and Opportunity to be Heard” means the procedure wherein the Board shall give
written notice of the proposed action to all Owners, tenants, or occupants of the Lots whose
interest would be significantly affected by the proposed action. The notice shall include a
general statement of the proposed action and the date, time and place of the hearing, which shall
be not less than five days from the date notice is delivered by the Board. At the hearing, the
affected person shall have the right, personally or by a representative, to give testimony orally, in
writing or both (as specified in the notice), subject to reasonable rules of procedure established
by the Board to assure a prompt and orderly resolution of the issues. Such evidence shall be
considered in making the decision but shall not bind the Board. The affected person shall be
notified of the decision in the same manner in which notice of the meeting was given.
“Owner” means the owner of record, whether one or more persons or entities, of a fee
simple title to any Lot and, except as may be otherwise expressly provided herein, shall, in the
case of a Lot which has been sold pursuant to a real estate contract, include any person of record
holding a vendee’s interest under such real estate contract, to the exclusion of the vendor
thereunder; provided, however, any person or entity having such an interest merely as security
for the performance of an obligation shall not be considered an Owner.
“Person” includes natural persons, partnerships, corporations, limited liability companies,
associations, trusts, personal representatives, or other legal entities.
“Plat” means the Plat for Canopy recorded under King County Recording No.
[_____________].
“Property” means the property described in Exhibit A.
“Rules and Regulations” means the Rules and Regulations for the Property, if any, as
adopted by the Board.
“Structure” means any Home, fence, wall, pole, driveway, walkway, patio, swimming
pool, or the like constructed on a Lot.
4
53383827.1
“Specially Allocated Expenses” means any expenses charged to an Owner under this
Declaration on some basis other than Common Expense Liability, as provided in Section 7.6.
ARTICLE 2
COMMON ELEMENTS
Section 2.1 Description of Common Elements. The Common Elements, as shown on
the Plat, are comprised of the following:
Tract A Storm Retention/Open Space/Entry Signage
Tract B Open Space
Tract D Open Space/Entry Signage
Tract E Open Space
Tract F Open Space
Tract G Open Space
Tract H Storm Retention/Open Space/Entry Signage
Tract I Open Space
Tract Q Open Space
Alley 1 Access
Alley 2 Access
Alley 3 Access
Section 2.2 Description of Limited Common Elements. The following portions of the
Common Elements are designated as Limited Common Elements, the exclusive use of which is
restricted to the Owners of the Lots indicated:
Alley 1 Lots 1 - 7
Alley 2 Lots 42 - 48
Alley 3 Lots 18 - 30
Section 2.3 Dedication of Common Elements. Declarant, by recording the Plat,
dedicates and conveys the Common Elements to the Association.
Section 2.4 Use of Common Elements. Each Owner shall have the right to use the
Common Elements, other than the Limited Common Elements, in common with all other
Owners, subject to this Declaration, the Bylaws, any Rules and Regulations adopted by the
Association, and the following:
The Association may totally bar or restrict use of portions of the
Common Element where ordinary use could be dangerous, unreasonably increase
Association costs, or be detrimental to the environment, or is inconsistent with its
designated use on the Plat.
The Association shall have the right to suspend the voting rights by
any Owner for any period during which any assessment against such Owner’s Lot remains
unpaid, and for a period not to exceed 60 days for any, and for each separate, infraction of
the Association’s published Rules and Regulations.
5
53383827.1
The Association shall have the right to dedicate or transfer all or
any portion of the Common Elements, including easements thereon, to any public agency,
authority, or utility for such purposes and subject to such conditions as may be agreed to
by the Owners. No such dedication or transfer shall be effective unless Owners holding
two-thirds of the votes in the Association vote or consent in writing to such dedication or
transfer. The instrument dedicating or transferring all or any portion of the Common
Element shall be executed by the president and secretary of the Association who shall
certify that the requisite vote or consent has been obtained.
Section 2.5 Delegation of Use. Any Owner may delegate, in accordance with such
Rules and Regulations as the Association shall promulgate, his or her right of use and enjoyment
of the Common Elements and Limited Common Elements to family members, guests, and tenants
of the Owner. Each Owner shall be responsible for informing the Owner’s family members,
guests, tenants, and service personnel of the contents of this Declaration as well as any Rules and
Regulations that may be adopted by the Association as they may relate to the use and enjoyment
of the Common Elements and Limited Common Elements. Each Owner shall be personally liable
for any damage to any Common Elements, Limited Common Elements or any other area
maintained by the Association or to any other property of the Association, whether real or
personal, caused by the Owner or the Owner’s family member, guest, tenant, agent, workman,
contractor or other licensee or invitee. The Association may have a lien upon the Owner’s Lot for
the amount of such damages as determined by the Board after Notice and Opportunity to be
Heard.
ARTICLE 3
OWNERS ASSOCIATION
Section 3.1 Establishment. There is hereby created an association called Canopy
Owners Association (the “Association”).
Section 3.2 Form of Association. The Association shall be a nonprofit corporation
formed and operated under the laws of the State of Washington.
Section 3.3 Articles and Bylaws. Declarant will adopt Articles of Incorporation and
will propose to the initial Board of Directors the adoption of Bylaws to supplement this
Declaration and to provide for the administration of the Association and the Property and for
other purposes not inconsistent with this Declaration. In the event of any conflict between this
Declaration and the Articles for such nonprofit corporation, the provisions of this Declaration
shall prevail. Bylaws for the administration of the Association and the Property, and to further
the intent of this Declaration, shall be adopted or amended by the Owners at regular or special
meetings; provided that the initial Bylaws shall be adopted by the Board of Directors. In the
event of any conflict between this Declaration and any Bylaws, the provisions of this Declaration
shall prevail.
Section 3.4 Board of Directors. The Association shall be managed by a Board of
Directors (the “Board”). Until the transition date, as determined below, the Declaration shall
appoint all of the members of the Board. The transition date shall be no later than the earlier of:
6
53383827.1
(a) 60 days after conveyance of 75% of the Lots to Owners other than the Declarant; (b) five
years after the date of recording of this Declaration; (c) two years after the last conveyance of a
Lot; or (d) the date on which the Declarant records an amendment to this Declaration pursuant to
which the Declarant voluntarily surrenders the right to further appoint and remove officers and
members of the Board; provided, however, that (a) not later than 60 days after conveyance of
25% of the Lots to Owners other than the Declarant, at least one member and not less than 25%
of the members of the Board must be elected by Owners other than the Declarant; and (b) not
later than 60 days after conveyance of 50% of the Lots to Owners other than the Declarant, not
less than one-third of the members of the Board must be elected by Owners other than the
Declarant. Thereafter, members of the Board shall be elected by the members of the Association,
as set forth in the Bylaws.
Section 3.5 Membership and Voting Rights. Each Owner of a Lot (including each Lot
owned by Declarant) shall automatically be a member of the Association and shall have one vote
for each Lot owned.
Section 3.6 Transfer of Membership. The membership in the Association of each
Owner (including Declarant) shall be appurtenant to the Lot giving rise to such membership, and
shall not be transferred in any way except upon the transfer of title to the Lot, and then only to
the transferee of title to the Lot. Any attempt to make a prohibited transfer shall be void. Any
transfer of title to a Lot shall operate automatically to transfer the membership in the Association
to the new Owner.
Section 3.7 Books and Records. The Board shall cause to be kept complete, detailed,
and accurate books and records of the receipts and expenditures of the Association, in a form that
complies with generally accepted accounting principles. The Board or a majority of the Owners
may at any time require an annual audit prepared by an independent certified public accountant
which shall be paid for by the Association.
Section 3.8 Inspection of Association Documents, Books, and Records. The
Association shall make available to Owners, Mortgagees, prospective purchasers and their
prospective mortgagees, and the agents or attorneys of any of them, current copies of this
Declaration, the Articles, the Bylaws, and other rules, books, records, and financial statements of
the Association, and the most recent annual audited financial statement, if one is prepared.
“Available” shall mean available for inspection upon request, during normal business hours or
under other reasonable circumstances. The Association may require the requesting party to pay a
reasonable charge to pay the cost of making the copies and deliveries.
ARTICLE 4
MANAGEMENT OF THE ASSOCIATION
Section 4.1 Administration of the Property. The Owners covenant and agree that the
administration of the Property shall be in accordance with the provisions of this Declaration and
the Bylaws of the Association which are made a part hereof. Administrative power and authority
shall be vested in the Board.
7
53383827.1
Section 4.2 Powers of the Association. In addition to those actions authorized
elsewhere in this Declaration, the Association, acting through its Board unless otherwise
provided, shall have the power to:
Adopt and amend Bylaws, provided that amendment of the Bylaws
shall be governed by;
Adopt, amend and repeal Rules and Regulations for the
Association;
Adopt and amend budgets for revenues, expenditures, and reserves,
and impose and collect Assessments for Common Expenses;
Hire and discharge or contract with Managing Agents and other
employees, agents, and independent contractors;
Institute, defend, or intervene in litigation or administrative
proceedings in its own name on behalf of itself or two or more Unit Owners on matters
affecting the Association; provided, however, (a) the approval of Owners holding a
majority of the votes in the Association shall be required before the Association may
institute, commence or intervene in any litigation or administrative proceeding, including
arbitration, other than litigation or other proceedings against Owners for collection of
delinquent Assessments or for enforcement of this Declaration, the Bylaws or the Rules
and Regulations, but Owner approval shall not be required for settlement of such litigation
or administrative proceedings;
Make contracts and incur liabilities;
Provide or regulate the use, maintenance, repair, replacement, and
modification of Common Elements and Limited Common Elements;
Cause additional improvements to be made as a part of the
Common Elements and acquire, hold, encumber, convey, and dispose of, in the
Association’s name, right, title, or interest to real or tangible and intangible personal
property, and arrange for and supervise any addition or improvement to the Common
Elements, provided that if the estimated cost of any separate property acquisition,
addition, or improvement to the Common Elements exceeds $10,000, the approval of the
Owners holding a majority of the votes in the Association shall be required;
Grant easements, leases, licenses, and concessions through or over
the Common Elements and petition for or consent to the vacation of streets and alleys;
Impose and collect any payments, fees, or charges for the use,
rental, or operation of the Common Elements and for services provided to Owners;
Impose and collect reasonable fees relating to conveyance or
change in occupancy of Units, such as move-in fees and transfer fees;
8
53383827.1
Acquire and pay for all goods and services reasonably necessary or
convenient for the efficient and orderly functioning of the Association;
Impose and collect charges for late payment of Assessments as
further provided in. and, after Notice and an Opportunity to be Heard by the Board or by
such representative designated by the Board and in accordance with such procedures as
provided in this Declaration, the Bylaws, or the Rules and Regulations, levy reasonable
fines in accordance with a previously established schedule thereof adopted by the Board
and furnished to the Owners for violations of this Declaration, the Bylaws, and the Rules
and Regulations;
Impose and collect reasonable charges for the preparation and
recording of amendments to this Declaration, resale certificates required by
RCW 64.90.640, and statements of unpaid Assessments;
Provide for the indemnification of its officers and Board, and
maintain directors and officers liability insurance;
Assign its right to future income, including the right to receive
Assessments;
Exercise any other powers conferred by this Declaration or the
Bylaws;
Exercise all other powers that may be exercised in this state by the
same type of corporation as the Association; and
Exercise any other powers necessary and proper for the governance
and operation of the Association.
ARTICLE 5
ARCHITECTURAL CONTROL
Section 5.1 Construction and Exterior Alterations or Repairs.
All Structures (including, without limitation, any concrete or
masonry walls, rockeries, driveways, fences, hedges, swimming pools) to be constructed,
erected, placed or altered within the Property, all exterior alterations and repairs
(including, but not limited to, re-roofing or repainting) of any Structures on the Property
and visible from any street or other Lot, and any construction or alteration of landscaping
on the Property must be approved by the Board or an Architectural Control Committee
(“ACC”) composed of three or more representatives appointed by the Board; provided,
that until completed Homes have been constructed on all of the Lots, Declarant shall act as
the ACC. Complete plans and specifications of all such proposed buildings, structures,
exterior alterations and repairs, or landscaping together with detailed plans showing the
proposed location of the same on the particular building site and other data requested by
the ACC shall be submitted to the ACC before construction, alteration or repair is begun.
9
53383827.1
Construction, alteration or repair shall not be started until written approval thereof is given
by the ACC.
The ACC will review submittals as to the quality of workmanship
and materials planned and for conformity and harmony of the exterior design with
proposed or existing structures on the Lots and, as to location of the building, with respect
to topography, finish grade elevation and building setback restrictions and compliance
with the Plat, in accordance with architectural guidelines to be adopted by the ACC.
All plans and specifications submitted for approval by the ACC
must be submitted in duplicate at least 30 days prior to the proposed construction or
exterior alteration or repair starting date. In the event the ACC fails to approve or
disapprove such design and location within 30 days after said plans and specifications
have been submitted to it, the ACC will be deemed to have given its approval.
The maximum height of any building shall be established by the
ACC as part of plan approval and shall be given in writing together with the approval. If
the ACC has failed to disapprove such design and location within the 30 day limit, and
such design and location is thereby deemed approved, the maximum height of any
building shall be no greater than ___ feet and must also comply with local zoning, land
use and building codes.
The ACC may require that all plans or specifications be prepared by
an architect or a competent house designer approved by the ACC. One complete set of the
plans and specifications shall in each case be delivered to and permanently left with the
ACC. All buildings or structures shall be erected or constructed, and all exterior
alterations or repairs made, by a contractor, house builder or other person or entity
approved by the ACC. The ACC shall have the right to refuse to approve any design, plan
or color for such improvements, construction or exterior, alteration or repair visible from a
street or other Lot which is not suitable or desirable, in the ACC’s opinion, and such
refusal may be based entirely on aesthetic or other factors.
In evaluating any design, the ACC may consider the suitability of
the proposed building or other structure, the material of which it is to be built, the exterior
color scheme, the site upon which such buildings or structures are proposed to be built, the
harmony thereof with the surroundings, and the effect or impairment that such building or
structure will have on the view or outlook of surrounding Lots, compliance with the Plat,
and any and all other factors which, in the ACC’s opinion, shall affect the desirability or
suitability of such proposed structure, building, improvements, or exterior alteration or
repair.
The ACC shall have the right to disapprove the design or
installation of a swimming pool or any other recreational structure or equipment deemed
undesirable, in the ACC’s reasonable opinion, based on aesthetic factors or otherwise.
The ACC may consider the visual impact of the proposed structure or equipment and the
noise impact of the related activities upon all nearby Lots or Common Elements. Any
enclosure or cover used in connection with such a recreational structure or equipment
10
53383827.1
whether temporary, collapsible, or seasonal, shall be treated as a permanent structure for
purposes of these covenants, and shall to be subject to all the conditions, restrictions, and
requirements as set forth herein for all buildings and structures.
The ACC may require, at the Owner’s expense, the trimming,
topping or, if deemed necessary by the ACC, removal of any tree, hedge or shrub on the
Owner’s Lot which the ACC determines is reasonably blocking or interfering with the
view or access to sunlight of another Lot or any Common Element.
Declarant (including any successor in interest to Declarant’s status
as Declarant) shall not be subject to the restrictions of this Section 5.1 as to any Lot owned
by Declarant.
By majority vote, the ACC may adopt or amend architectural
guidelines consistent with this Declaration for making its determinations hereunder.
No Structure shall be erected, altered, placed or permitted to remain
on any Lot unless the Structure complies with the Plat and with applicable building codes.
The ACC may require that the Owner furnish the ACC with evidence that all necessary
permits have been obtained from the County for any work on a Lot for which ACC
approval is required under this Section prior to commencement of the work.
Section 5.2 Declarant Facilities. Notwithstanding any provision in this Declaration to
the contrary, Declarant and its agents, employees and contractors shall be permitted to maintain
during the period of sale of Lots or Homes upon such portion of the Property (other than Lots sold
by Declarant) as Declarant may choose, such facilities as in the sole opinion of the Declarant may
be reasonably required, convenient or incidental to the construction, sale or rental of Lots and
Homes, including but not limited to a business office, storage area, signs, model units, sales
office, construction office and parking areas for all prospective tenants or purchasers of Declarant.
ARTICLE 6
USE RESTRICTIONS AND MAINTENANCE OBLIGATIONS
Section 6.1 Maintenance of Homes and Lots. Except for such maintenance and repairs
which are to be performed by the Association pursuant to the provisions of this Declaration, each
Owner, at said Owner’s cost and expense, shall promptly and continuously maintain, repair,
replace and restore the Home and other Structures or improvements on the Owner’s Lot in a good,
clean, attractive, safe and sanitary condition and in full compliance with all applicable laws, the
provisions of this Declaration, and any Rules and Regulations of the Association. If any Owner
fails to maintain, repair, replace or restore the Owner’s Home, other Structures located on the Lot,
the Association may, after Notice and Opportunity to be Heard, at the Owner’s cost and expense,
maintain, repair, replace or restore such items or areas and the Owner shall pay or reimburse the
Association on demand for all such costs and expenses. All trees, hedges, shrubs, and flowers
shall be kept in an attractive, neat, trimmed and pruned condition. Owners shall not allow their
Lots to become overgrown or unkempt so as to create a visual nuisance. Leaves, clippings, dead
plants and other yard waste shall be placed in a compost pile or appropriate containers for
disposal. If any Owner has failed to maintain, repair, replace or restore the portions of the
11
53383827.1
Owner’s Home or other Structures or improvements on the Owner’s Lot for which the Owner is
responsible, after written request from the Board and a reasonable opportunity to do so, the
Association may, after Notice and Opportunity to be Heard, maintain, repair, replace or restore
such items or areas at the Owner’s expense. The Association shall levy a special Assessment
against the Owner for all such expenses.
Section 6.2 Maintenance of Common Maintenance Areas. The Association shall have
the responsibility for the operation, maintenance, repair and replacement of the Common
Maintenance Areas. All such areas and facilities shall be reasonably maintained for their
intended use, subject to applicable governmental restrictions. The Common Maintenance Areas
are comprised of the following:
The Common Elements and Limited Common Elements and any
improvements located thereon.
Street trees and sidewalks adjacent the public streets.
The landscaping on Lots.
Mailboxes.
Section 6.3 Damage to Common Maintenance Areas. Except to the extent covered by
the Association’s insurance, each Owner shall be liable for any damage to any Common
Maintenance Area caused by the Owner or the Owner’s family member, guest, tenant, agent,
workman, contractor or other licensee or invitee. The Association may have a lien upon the
Owner’s Lot for the amount of such damages as determined by the Board after Notice and
Opportunity to be Heard.
Section 6.4 Residential Use; Timesharing Prohibited. Except as provided below, all
Lots and the Structures located on Lots shall be used, improved and devoted exclusively for
residential purposes only, including: (i) sleeping, eating, food preparation for on-site
consumption by occupants and guests, entertaining by occupants or personal guests, and similar
activities commonly conducted within a residential dwelling, (without regard to whether the
Owner or occupant uses a Lot as a primary or secondary personal residence, on an ownership,
rental, lease or invitee basis) or such other reasonable ancillary purposes commonly associated
with residential dwellings and otherwise in compliance with this Declaration and all applicable
laws for residential dwellings; (ii) for use as home offices or for home occupations not involving
use by nonresident employees or regular visits by customers or clients, unless the Board
determines that such use would not adversely affect (a) the right of the other Owners to the quiet
enjoyment of their Lot and Lot or (b) the value of the other Lots and Lots; (iii) for the common
social, recreational or other reasonable uses normally incident to such purposes; and (iv) for
purposes of operating the Association and managing the Property. Timesharing of Lots, as
defined in RCW 64.36, is prohibited.
Section 6.5 No Nuisances. No noxious or offensive conditions shall be permitted upon
any Lot or improvement thereon, nor shall anything be done thereon which is or may become an
annoyance or nuisance to other residents of the Property.
12
53383827.1
Section 6.6 Quiet Enjoyment. No Owner shall permit anything to be done or kept in
the Owner’s Home, the Owner’s Lot, or elsewhere on the Property that would interfere with the
right of quiet enjoyment of the other residents of the Property.
Section 6.7 Garbage and Trash Removal. No portion of the Property may be used as a
dumping ground for rubbish, trash, garbage, litter, junk and other debris. Each Owner shall be
responsible for the prompt and regular disposal of all of garbage, trash, and junk from the
Owner’s Lot. All garbage, trash, and yard waste shall be placed in appropriate sanitary containers
for regular disposal or recycling.
Section 6.8 Animal Restrictions. No insects, reptiles, poultry or animals of any kind
shall be raised, bred or kept in any Home or on any Lot, except that domesticated dogs, cats or
other usual household pets (hereinafter referred to as “pets”) may be kept in a Home subject to
Rules and Regulations adopted by the Board. An Owner may keep no more than two dogs, two
cats or one dog and one cat in any Home. The Board may prohibit dangerous breeds of dogs. No
dog houses, kennels, dog runs or the like may be kept or maintained on any Lot. All pets when
outside a Home shall at all times be kept on an adequate leash or other means of physically
controlling the pet by a person capable of controlling the pet. Owners shall clean up after their
pets. Any Owner whose pet violates these provisions or who causes any unreasonable noise or
damage to persons or property shall be liable to all such harmed Owners and their families,
guests, and invitees. The Board may at any time require the removal of any pet at the Owner’s
sole expense which the Board finds is disturbing other Owners unreasonably, and may exercise
this authority for specific pets even though other pets are permitted to remain.
Section 6.9 Signs. Except as permitted by permitted by RCW 64.90.510, no sign of
any kind shall be displayed to the public view on or from any Home or Lot without the prior
consent of the Board. Advertising shall not be permitted from any Home or Lot, including, but
not limited to, decks, windows or doors. Unless otherwise authorized in the Rules and
Regulations, Owners are prohibited from posting signs on the Property to advertise Lots for sale
or lease. The Board may establish a master directory on the Property for the purpose of
advertising Lots that are for sale or lease. This Section shall not apply to the Declarant who may
post such signs on the Property as it deems necessary or appropriate for the sale or lease of Lots
as long as the Declarant owns a Lot.
Section 6.10 Rental. With respect to the leasing, renting, or creation of any kind of
tenancy of a Lot, the Owner (except for a lender in possession of a Lot and improvements located
thereon following a default in a first Mortgage, a foreclosure proceeding, or any deed of trust sale
or other arrangement in lieu of a foreclosure) shall be prohibited from leasing or renting less than
the entire Home, and for any term less than six months, provided that this shall not prohibit an
Owner having a roommate (and receiving rent or payments from the roommate). Any lease or
rental agreement must provide that its terms shall be subject in all respects to the provisions of the
Declaration, the Bylaws, and Rules and Regulations of the Association and that any failure by the
tenant to comply with the terms of such documents, rules, and regulations shall be a default under
the lease or rental agreement. If any lease under this Section does not contain the foregoing
provisions, such provisions shall nevertheless be deemed to be part of the lease and binding upon
the Owner and the tenant by reason of their being stated in this Declaration. All leases and rental
agreements shall be in writing. Copies of all leases and rental agreements shall be delivered to
13
53383827.1
the Association before the tenancy commences. If any lessee or occupant of a Lot violates or
permits the violation by his guests and invitees of any provisions hereof or of the Bylaws or of the
Rules and Regulations of the Association, and the Board determines that such violations have
been repeated and that a prior notice to cease has been given, the Board may give notice to the
lessee or occupant of the Lot and the Owner thereof to forthwith cease such violations. If the
violation is thereafter repeated, the Board shall have the authority, on behalf and at the expense of
the Owner, to evict the tenant or occupant if the Owner fails to do so after Notice from the Board
and an Opportunity to be Heard. The Board shall have no liability to an Owner or tenant for any
eviction made in good faith. The Association shall have a lien against the Owner’s Lot for any
costs incurred by it in connection with such eviction, including reasonable attorney fees, which
may be collected and foreclosed by the Association in the same manner as Assessments are
collected and foreclosed under this Declaration. Other than as stated in this Section, there is no
restriction on the right of any Owner to lease or otherwise rent his Lot.
Section 6.11 Zoning Regulations. Zoning regulations, building regulations,
environmental regulations and other similar governmental regulations applicable to the Property
subject to this Declaration shall be observed. In the event of any conflict between any provision
of such governmental regulations and restrictions of this Declaration, the more restrictive
provision shall apply.
Section 6.12 Temporary Dwelling. No outbuilding, basement, tent, shack, garage,
trailer, shed or temporary building of any kind shall be used as a dwelling either temporarily or
permanently.
Section 6.13 Oil and Mining Operations. No oil drilling, oil development operations, oil
refining, quarrying, or mining operations of any kind shall be permitted upon or in any Lot, nor
shall oil wells, tanks, tunnels, mineral excavations, or shafts be permitted upon or in any Lot. No
derrick or other structure designed for use in boring for oil or natural gas shall be erected,
maintained, or permitted upon any Lot.
Section 6.14 Use and Disposal of Hazardous Substances. Owners shall comply with all
state, federal, and local laws and regulations governing or in any way relating to the handling,
storage, use, dumping, discharge, or disposal of any hazardous substance or material on their Lots
and the Property. Owners shall not dispose of or discharge any hazardous substance or materials
on any Lot, adjacent public street, or other area located within the Property.
Section 6.15 Exterior Add-ons. No awnings, air conditioning units, or other projections
shall be placed on or hang from the exterior surfaces of any Home or other Structure unless
approved by the Board.
Section 6.16 Exterior Changes. Declarant has designed and constructed the Home and
other improvements, including landscaping, on the Lots, to be harmonious, compatible and
complementary to each other. Any material alteration or addition to the exteriors of the initial
Homes or to the other improvements or landscaping on the Lots (including, without limitation,
concrete or masonry walls, walkways, rockeries, driveways, fences, hedges, patios, decks, planter
or landscaping) to be constructed, erected, placed or altered within the Property must be approved
by the Board.
14
53383827.1
Section 6.17 Window Coverings. Unless otherwise provided in the Rules and
Regulations, curtains, blinds, draperies and window treatments visible from outside the windows
of a Home shall be neutral, white or off-white, and the Owners shall not replace the screens in the
windows or doors of the Homes except with materials of similar color and quality to those
originally installed.
Section 6.18 Protected Antennas. Owners of Lots may install antennas, dishes or other
receiving devices on their Lot or Lots only to the extent that right is provided for Protected
Antennas, as defined by the provisions of 47 C.F.R. § 1.4000 (“FCC Rule”) as it now exists or is
hereafter amended or replaced, or any other federal, state or local law, code, rule or regulation that
preempts, prohibits or limits restrictions on, or conditions to, the installation, maintenance or
repair of telecommunications equipment desired by an Owner and further provided that any
Protected Antenna shall be screened from view from the public streets and from the other Lots
and Lots to the to the greatest extent such screening is permitted under the FCC Rule.
Section 6.19 Unsightly Items. Unsightly items must be hidden from view within a Lot
they will not be seen from any other Lot or the public street. Unsightly items shall include, but
shall not be limited to, garbage and trash, clothes lines, bicycles, recreational gear, outdoor
maintenance equipment, firewood and ladders.
Section 6.20 Fences. No fence or wall shall be erected on any Lot, except that nothing
shall prevent the erection of (i) a retaining wall approved by the Board and necessary for the
retention of soil, and (ii) fences installed by Declarant. At no time shall any fence, wall, hedge, or
mass planting functioning as a hedge, where permitted, extend higher than six (6) feet above the
ground without the approval of the Board. Fences shall be strictly in compliance with design
guidelines established by the Board, which standards may provide for limited acceptable styles,
materials, and/or specifications. All fences shall be of approved designs and color as established
by the Board.
Section 6.21 Effect on Insurance. Nothing shall be done or kept in any Home or on any
Lot that will increase the rate of insurance on the Property without the prior written consent of the
Board. Nothing shall be done or kept in any Home or on any Lot that will result in cancellation of
insurance on any part of the Property, or that would be in violation of any laws.
ARTICLE 7
ASSESSMENTS
Section 7.1 Creation of the Lien and Personal Obligation of Assessments. Each
Owner of a Lot, by acceptance of a deed therefore, whether or not it shall be so expressed in such
deed, is deemed to covenant and agree to pay to the Association any Assessment duly levied by
the Association as provided herein. Such Assessments, together with interest, costs, late charges
and reasonable attorney’s fees, shall also be a charge on the land and shall be a continuing lien
upon the Lot against which each such Assessment is made. Each such Assessment, together with
interest, costs, late charges and reasonable attorneys’ fees, shall also be the personal obligation of
the person who was the Owner of the Lot at the time when the Assessment fell due. The
personal obligation for delinquent Assessments shall not pass to his successor title unless the lien
for such delinquent Assessments had been properly recorded prior to title transfer or unless
15
53383827.1
expressly assumed by that party. When ownership of a Lot changes, Assessments which have
been established for the current fiscal year shall be prorated between the Buyer and Seller based
on a 365 day year.
Section 7.2 Allocation of Assessments. Any Assessments which may be levied from
time to time pursuant to the authority of the Board shall be established in accordance with this
Article, except for Assessments levied against an Owner for the purpose of reimbursing the
Association for costs incurred in bringing the Owner or his Lot or Lot into compliance with the
provisions of this Declaration. Common Expenses shall be allocated to the Owners in
accordance with Common Expense Liability. No Owner may exempt himself or herself from
liability for Assessments by abandoning his or her Lot.
Section 7.3 Association Budgets. The initial budget for the Association shall be
adopted by Declarant, which shall be based on a total development consisting of 42 Lots
according to Declarant’s current plans. Subsequent budgets shall be prepared by the Board,
subject to ratification by the members of the Association as provided below. The budgets shall
set forth sums required by the Association for the completed development, as estimated by the
Board, to meet its annual costs for Common Expenses, including a reasonable sum for reserves
for future major repairs and replacements for which the Association is responsible. Monthly
Assessments shall begin accruing for all Units upon the first conveyance of a Lot by Declarant,
provided that the Declarant may delay the commencement of Assessments and pay all actual
Common Expenses.
Section 7.4 Ratification of Budget. Within 30 days after adoption of any proposed
budget for the Association after the initial budget adopted by Declarant, the Board shall provide a
summary of the budget to all the Owners and shall set a date for a meeting of the Owners to
consider ratification of the budget not less than 14 nor more than 60 days after mailing of the
summary. Unless at that meeting the Owners to which a majority of the votes in the Association
are allocated reject the budget, the budget is ratified, whether or not a quorum is present. In the
event the proposed budget is rejected or the required notice is not given, the prior budget shall
continue until such time as the Owners ratify a subsequent budget proposed by the Board.
Section 7.5 Supplemental Budget. If during the year the budget proves to be
inadequate for any reason, including nonpayment of any Owner’s Assessments, the Board may
prepare a supplemental budget for the remainder of the year. A supplemental budget shall be
subject to ratification by the Owners pursuant to Section 7.4.
Section 7.6 Specially Allocated Expenses. The cost of maintenance, repair and
replacement of each of the Limited Common Element alleys, including reserves, shall be
specially allocated equally among the Owners of Lots served by each alley.
Section 7.7 Manner and Time of Payment; Late Charges. Assessments shall be
payable in such reasonable manner as the Board shall designate. Any Assessment or installment
thereof which remains unpaid for ten days after the due date thereof shall bear interest at the rate
of 12% per annum, and the Board may also assess a late charge in an amount not exceeding 25%
of any unpaid Assessment which has been delinquent for more than ten days.
16
53383827.1
Section 7.8 Initial Contribution to Working Capital. In connection with the closing of
the sale of each Lot, the first purchaser thereof shall pay to the Association, as a nonrefundable
contribution to an initial working capital fund, an amount equal to two times the initial monthly
Assessment (including reserves) against the Lot, which amount shall not be considered as an
advance payment of regular Assessments. Declarant shall not use any of the working capital
fund to defray any of its expenses, reserve contributions or construction costs.
Section 7.9 Accounts. Any Assessments collected by the Association shall be
deposited in one or more federally insured institutional depository accounts established by the
Board. The Board shall have exclusive control of such accounts and shall maintain accurate
records thereof. No withdrawal shall be made from said accounts except to pay for charges and
expenses authorized by this Declaration.
Section 7.10 Lien. In the event any Assessment or installment thereof remains
delinquent for more than 30 days, the Board may, upon 15 days’ prior written notice to the
Owner of the Lot of the existence of the default, accelerate and demand immediate payment of
the entire Assessment. The amount of any Assessment assessed or charged to any Owner plus
interest, costs, late charges and reasonable attorneys’ fees, shall be a lien upon the Lot. A notice
of Assessment may be recorded in the office where real estate conveyances are recorded for the
county in which this property is located. Such notice of Assessment may be filed at any time at
least 15 days following delivery of the notice of default referred to above in this Section. The
lien for payment of such Assessment and charges shall have priority over all other liens and
encumbrances, recorded or unrecorded, limited as otherwise provided herein. Suit to recover a
money judgment for unpaid Assessments or charges shall be maintainable without foreclosure or
waiver of the lien securing the same. Said liens may be foreclosed as a mortgage.
Section 7.11 Waiver of Homestead. Each Owner hereby waives, to the extent of any
liens created pursuant to this Article, the benefit of any homestead or exemption law in effect at
the time any Assessment or installment thereof becomes delinquent or any lien is imposed
pursuant to the terms hereof.
Section 7.12 Special Assessments. For those Common Expenses which cannot
reasonably be calculated and paid on a monthly basis, the Board may levy special Assessments
for such expenses against the Owners on the same basis as general Assessments for such
expenses. To the extent that any Common Expense is caused by the misconduct of an Owner or
tenant of any Lot, the Association may, after Notice and Opportunity to be Heard, levy a special
Assessment for the expense against the Owner of the Lot.
Section 7.13 Financial Statements; Records. The Board shall cause detailed and
accurate records of the receipts and expenditures of the Association to be kept specifying and
itemizing the maintenance, operating, and any other expense incurred. Such records, copies of
this Declaration, the Articles and the Bylaws, and any resolutions authorizing expenditures of
Association funds shall be available for examination by any Owner at convenient weekday
hours. At least annually, the Association shall prepare, or cause to be prepared, a financial
statement of the Association in accordance with accrual based accounting principles. The
financial statement must be audited annually by a certified public accountant; provided that if the
annual assessments were less than $50,000, the audit may be waived annually by owners other
17
53383827.1
than the declarant holding a majority of the votes in the Association, excluding votes held by the
Declarant.
Section 7.14 Certificate of Assessment. A certificate executed and acknowledged by
the treasurer or the president of the Board (or an authorized agent thereof, if neither the president
nor treasurer is available) stating the indebtedness for Assessments and charges or lack thereof
secured by the Assessments upon any Lot shall be conclusive upon the Association as to the
amount of such indebtedness on the date of the certificate, in favor of all persons who rely
thereon in good faith. Such a certificate shall be furnished to any Owner or any Mortgagee of a
Lot within a reasonable time after request, in recordable form, at a reasonable fee. Unless
otherwise prohibited by law, any Mortgagee holding a lien on a Lot may pay any unpaid
Assessments or charges with respect to such Lot, and, upon such payment, shall have a lien on
such Lot for the amounts paid of the same priority as its lien.
Section 7.15 Foreclosure of Assessment Lien; Attorneys Fees and Costs. The Board (or
authorized agent), on behalf the Association, may initiate an action to foreclose the lien of, or
collect any Assessment. In any action to foreclose the lien of, or otherwise collect delinquent
Assessments or charges, any judgment rendered in favor of the Association shall include a
reasonable sum for attorneys’ fees and all costs and expenses reasonably incurred in preparation
for or in the prosecution of said action, in addition to all costs permitted by law. Said liens may
be foreclosed as a mortgage.
Section 7.16 Curing of Default. The Board shall prepare and record a satisfaction and
release of the lien for which a notice of Assessment has been filed and recorded in accordance
with this Article upon timely payment or other satisfaction of all delinquent Assessments set
forth in the notice and all other Assessments which have become due and payable following the
date of such recordation with respect to the Lot to which such notice of Assessment was
recorded, together with all costs, late charges and interest which have accrued thereon. A fee of
fifty dollars ($50.00) or such other amount as may from time to time be set by the Board
covering the cost of preparation and recordation shall be paid to the Association prior to such
action. The satisfaction and release of the lien created by the notice of Assessment shall be
executed by the president or treasurer of the Association or by any authorized representative of
the Board. For the purpose of this paragraph, the term “costs” shall include costs and expenses
actually incurred or expended by the Association in connection with the cost of preparation and
recordation of the notice of Assessment and any efforts to collect the delinquent Assessments,
including a reasonable sum for attorneys’ fees and costs.
ARTICLE 8
EASEMENTS
Section 8.1 Utility Easements. Declarant grants easements for all typical utility and
service purposes, including, but not limited to, electrical power lines, water pipelines, drainage
pipes and related equipment, cable, natural gas, HVAC condensers and condensate lines, mail
service, address markers, security systems, telephone and meters to all Lots, for the Utilities as
constructed, whether or not the location is specifically called or identified as an easement area on
the Plat. These easements grant to Owners and suppliers of utilities a reasonable right of access
and right to make necessary improvements, repairs and replacement of component parts of the
18
53383827.1
utilities. Except to the extent performed by the utility, the Owner(s) of the Lot(s) served by the
utilities shall bear the cost of such repair and replacement and are obligated to restore ground
surface, vegetation, or Structures to the same condition as existed immediately prior to such
repair or replacement. The fact that a utility is located on one specific Lot shall not impose any
greater obligation of maintenance of that utility upon the Owner of that Lot than on any other
Owner(s) if the utility serves another Lot or Lots.
Section 8.2 Easement for Encroachments. Each Lot shall have an easement for any
minor encroachments that may extend onto adjoining Lots or Common Elements, such as eaves,
window sills, bay windows, and similar features purposefully designed to encroach over
individual Lot lines within the Plat.
Section 8.3 Association Functions. There is hereby reserved to Declarant and the
Association or their duly authorized agents and representatives such easements as are necessary
to perform the duties and obligations of the Association as are set forth in the Declaration, or in
the Bylaws, and Rules and Regulations adopted by the Association.
ARTICLE 9
INSURANCE
Section 9.1 Association Insurance. The Board shall cause the Association to purchase
and maintain at all times as a common expense a policy or policies necessary to provide
comprehensive liability insurance; fidelity insurance; worker’s compensation insurance to the
extent required by applicable laws; insurance against loss of personal property of the Association
by fire, theft, or other causes with such deductible provisions as the Board deems advisable; and
such other insurance as the Board deems advisable. The Board may also, in its sole discretion,
cause the Association to purchase and maintain insurance, if available, for the protection of the
Association’s directors, officers, and representatives from personal liability in the management
of the Association’s affairs. The Board shall review at least annually the adequacy of the
Association’s insurance coverage. All insurance shall be obtained from insurance carriers that
are generally acceptable for similar projects and licensed to do business in the state of
Washington. All such insurance policies and fidelity bonds shall provide that coverage may not
be cancelled or substantially modified (including cancellation for nonpayment of premium)
without at least 30 days’ prior written notice to any and all insureds named therein, including
Owners, holders of mortgages, and designated servicers of mortgagees.
Section 9.2 Owners’ Insurance.
All Owners shall obtain and maintain property insurance, liability
insurance, and such other insurance as the Board deems advisable. All insurance shall be
obtained from insurance carriers that are generally acceptable for similar residential
properties and authorized to do business in the state of Washington. All such insurance
policies shall provide that coverage may not be cancelled or substantially modified
(including cancellation for nonpayment of premium) without at least 30 days’ prior
written notice to the Association. All Owners shall provide the Association with proof of
insurance upon the request of the Association.
19
53383827.1
The property insurance maintained by each Owner shall, at the
minimum, provide all risk or special cause of loss coverage in an amount equal to the full
replacement cost of each Home and all fixtures and improvements located thereon, with
such reasonable deductibles and exclusions from coverage as the Board may from time to
time approve or by rule or regulation establish.
The liability insurance coverage maintained by each Owner shall
cover liability of the insureds for property damage and bodily injury and death of persons
arising out of the operation, maintenance, and use of the Lot and such other risks as are
customarily covered for similar residential properties with a limit of liability of at least
$300,000.
Any portion of the Home or Lot for which insurance is required
under this Article which is damaged or destroyed shall be repaired or replaced promptly
by the Owner pursuant to Error! Reference source not found. Unless the subdivision is
terminated or repair or replacement would be illegal under any state or local health or
safety statute or ordinance.
ARTICLE 10
COMPLIANCE AND ENFORCEMENT
Section 10.1 Enforcement.Each Member, Board member and the Association shall
comply strictly with the provisions of this Declaration and with the Bylaws and
administrative Rules and Regulations adopted by the Association (as the same may be
lawfully amended from time to time). Failure to comply may result in a claim for
damages or injunctive relief, or both, by the Board (acting through its officers on behalf of
the Association and the Owners) or by the aggrieved Owner on his own, against the party
(including an Owner or the Association) failing to comply.
In any action or arbitration to enforce the provisions of this Section
or any other provision of this Declaration, the Articles or the Bylaws, the prevailing party
in such action or arbitration shall be entitled to an award for reasonable attorneys’ fees and
all costs and expenses reasonably incurred in preparation for prosecution of said action or
arbitration, in addition to all costs permitted by law.
Section 10.2 No Waiver of Strict Performance. The failure of the Board or Declarant,
as applicable, in any one or more instances to insist upon or enforce the strict performance of any
of the terms, covenants, conditions or restrictions of this Declaration, or of any Bylaws or
administrative rules or regulations, shall not be construed as a waiver or a relinquishment for the
future of such term, covenant, condition or restriction, but such term, covenant, condition or
restriction shall remain in full force and effect. No waiver by the Board of any provision hereof
shall be deemed to have been made unless expressed in writing and signed by the Board.
Section 10.3 Remedies Cumulative. The remedies provided herein are cumulative, and
the Board may pursue them concurrently, as well as any other remedies which may be available
under law although not expressed herein.
20
53383827.1
ARTICLE 11
LIMITATION OF LIABILITY
Section 11.1 No Personal Liability. So long as a Board member, Association committee
member, Association officer, or authorized agent(s) has acted in good faith, without willful or
intentional misconduct, upon the basis of such information as may be possessed by such person,
no person shall be personally liable to any Member, or other party including the Association, for
any damage, loss or prejudice suffered or claimed on account of any act, omission, error,
negligence (except gross negligence), any discretionary decision or failure to make a
discretionary decision, by such person in such person’s official capacity; provided, however, that
this Section shall not apply where the consequences of such act, omission, error or negligence
are covered by insurance or bond obtained by the Board pursuant to Article 4 or Article 9.
Section 11.2 Indemnification. Each Board member (including members appointed by
the Declarant) or Association committee member, or Association officer, and their respective
heirs and successors, shall be indemnified by the Association against all expenses and liabilities,
including attorneys’ fees, reasonably incurred by or imposed in connection with any proceeding
to which he or she may be party, or in which he or she may become involved, by reason of being
or having held such position at the time such expenses or liabilities are incurred, except in such
cases wherein such person is adjudged guilty of intentional misconduct, or gross negligence or a
knowing violation of law in the performance of his or her duties, and except in such cases where
such person has participated in a transaction from which said person will personally receive a
benefit in money, property, or services to which said person is not legally entitled; provided,
however, that in the event of a settlement, indemnification shall apply only when the Board
approves such settlement and reimbursement as being in the best interests of the Association.
Nothing contained in this Section shall, however, be deemed to obligate the Association to
indemnify any Member who is or has been a Board member or officer of the Association with
respect to any duties or obligations assumed or liabilities incurred by him or her under and by
virtue of the Declaration as a Member or Owner of a Lot.
ARTICLE 12
MORTGAGEE PROTECTION
Section 12.1 Priority of Mortgages. Notwithstanding all other provisions hereof, the
liens created under this Declaration upon any Lot for Assessments shall be subject to tax liens on
the Lot in favor of any assessing and/or special district and be subject to the rights of the secured
party in the case of any indebtedness secured by a First Mortgage which were made in good faith
and for value upon the Lot. A Mortgagee of a Lot, or other purchaser of a Lot, who obtains
possession of a Lot as a result of foreclosure or deed in lieu thereof will be liable for any
Assessment accruing after such possession. Such unpaid share of Assessments shall be deemed
to be Common Expenses and collectible from all of the Owners including such possessor, his
successor and assigns.
Section 12.2 Effect of Declaration Amendments. No amendment of this Declaration
shall be effective to modify, change or limit or alter the rights expressly conferred upon
Mortgagees in this instrument with respect to any unsatisfied Mortgage duly recorded unless the
amendment shall be consented to in writing by the holder of such Mortgage. Any provision of
21
53383827.1
this Article conferring rights upon Mortgagees which is inconsistent with any other provision of
this Declaration shall control over such other inconsistent provisions.
Section 12.3 Rights of Lien Holders. A breach of any of the provisions, conditions,
restrictions, covenants, easements or reservations herein contained shall not affect or impair the
lien or charge of any bona fide Mortgage made in good faith for value on any Lot; provided,
however, that any subsequent owner of the Lot shall be bound by these provisions whether such
owner’s title was acquired by foreclosure or trustee’s sale or otherwise.
Section 12.4 Copies of Notices. If the First Mortgagee of any Lot has so requested of
the Association in writing, the Association shall give written notice to such First Mortgagee that
an Owner/mortgagor of a Lot has for more than 60 days failed to meet any obligation under this
Declaration. Any First Mortgagee shall, upon written request, also be entitled to receive written
notice of all meetings of the Association and be permitted to designate a representative to attend
such meetings.
Section 12.5 Furnishing of Documents. The Association shall make available to
prospective purchasers, Mortgagees, insurers, and guarantors, at their request, current copies of
the Declaration, Bylaws, and other rules governing the Property, and the most recent balance
sheet and income/expense statement for the Association, if any has been prepared.
ARTICLE 13
ABANDONMENT OF SUBDIVISION STATUS
Section 13.1 Duration of Covenants. The covenants contained herein shall run with and
bind the land and be perpetual, unless modified by an instrument executed in accordance with
Article 14.
Section 13.2 Abandonment of Subdivision Status. The Association shall not, without
the prior written approval of the governmental entity having jurisdiction over the Property and
without prior written approval of 100% of all first Mortgagees and Owners (other than the
sponsor, developer or builder) of record, seek by act or omission to abandon or terminate the
subdivision status of the Property as approved by the governmental entity having appropriate
jurisdiction over the Property.
ARTICLE 14
AMENDMENT OF DECLARATION OR PLAT
Section 14.1 Declaration Amendment. Amendments to this Declaration shall be made
by an instrument in writing entitled “Amendment to Declaration” which sets forth the entire
amendment. Except as provided elsewhere in this Declaration, this Declaration may be amended
only with the approval of Owners holding 67% of the votes in the Association and the Declarant
as long as the Declarant owns a Lot. The members’ approval may be obtained by a special vote
of the members at a meeting of the Association, or the written consent of the requisite percentage
of members. The amendment shall be executed by the president and secretary of the Association
who shall certify that the requisite vote or consent has been obtained. Notwithstanding any of
the foregoing, the prior written approval of 51% of all First Mortgagees shall be required for any
amendment to the Declaration of a material adverse nature to Mortgagees. It is specifically
22
53383827.1
covenanted and understood that any amendment to this Declaration properly adopted will be
completely effective to amend any or all of the covenants, conditions and restrictions contained
herein which may be affected and any or all clauses of this Declaration unless otherwise
specifically provided in the section being amended or the amendment itself.
Section 14.2 Plat. The Plat may be amended only by an instrument approved and
executed by the Owners of 67% of the Lots, approved by the City and recorded in the
appropriate County offices.
Section 14.3 Amendments to Conform to Construction. Declarant, upon Declarant’s
sole signature, and as an attorney-in-fact for all Lot Owners with irrevocable power coupled with
an interest, may at any time, until all Lots have been sold by Declarant, file an amendment to the
Declaration to conform data depicted therein to improvements as actually constructed and to
establish, vacate and relocate easements.
ARTICLE 15
MISCELLANEOUS
Section 15.1 Notices.Any written notice or other documents as required by this
Declaration, may be delivered personally or by certified mail. If by mail, such notice,
unless expressly provided for herein to the contrary with regard to the type of notice being
given, shall be deemed to have been delivered and received 48 hours after a copy thereof
has been deposited in the United States mail, postage prepaid, addressed as follows:
15.1.1.1 If to a Member, other than Declarant: to the mailing address of
such Member maintained by the Association, pursuant to the Bylaws.
15.1.1.2 If to Declarant, whether in its capacity as a Member, or in any
other capacity, the following address (unless Declarant shall have advised the Board in writing of
some other address):
Blue Fern Development LLC
11232 120th Ave NE, Ste 204
Kirkland, WA 98033
15.1.1.3 Prior to the organization of the Association, notices to the
Association shall be addressed as set forth above. Thereafter, notices to the Association shall be
addressed to the official mailing address furnished by written notice from the Association. In
addition, from and after the organizational meeting, notice of the address of the Association shall
be given by the Board to each Owner, within a reasonable time after the Board has received
actual notice of such Owner’s purchase of a Lot.
Section 15.2 Conveyance: Notice Required. The right of an Owner to sell, transfer, or
otherwise convey his or her Lot shall not be subject to any right of approval, disapproval, first
refusal, or similar restriction by the Association or the Board, or anyone acting on their behalf. If
a Lot is being sold, the Board shall have the right to notify the purchaser, the title insurance
company, and the closing agent of the amount of unpaid Assessments and charges outstanding
against the Lot, whether or not such information is requested.
23
53383827.1
Section 15.3 Successors and Assigns. This Declaration shall be binding upon and shall
inure to the benefit of the heirs, personal representatives, successors and assigns of Declarant,
and the heirs, personal representatives, grantees, lessees, sublessees and assignees of the
Member.
Section 15.4 Joint and Several Liability. In the case of joint ownership of a Lot, the
liability of each of the Owners thereof in connection with the liabilities and obligations of
Owners, set forth in or imposed by this Declaration, shall be joint and several.
Section 15.5 Mortgagee’s Acceptance.
This Declaration shall not initially be binding upon any Mortgagee
of record at the time of recording of said Declaration but rather shall be subject and
subordinate to said Mortgagee’s Mortgage.
Declarant shall not consummate the conveyance of title of any Lot
until the Mortgagee of the Lot shall have accepted the provisions of this Declaration and
made appropriate arrangements for partial release of the Lot from the lien of the
Mortgage. The issuance and recording of the first such partial release by said Mortgagee
shall constitute its acceptance of the provisions of this Declaration and the status of the
Lots remaining subject to its Mortgage as well as its acknowledgment that such
appropriate arrangements for partial release of Lots has been made; provided, that, except
as to Lots so released, said Mortgage shall remain in full force and effect as to the entire
property.
Section 15.6 Severability. The provisions hereof shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforceability of any one provision or
portion thereof shall not affect the validity or enforceability of any other provision hereof.
Section 15.7 Construction. The provisions of this Declaration shall be liberally
construed to effectuate its purpose of creating a uniform plan for the operation and maintenance
of the Property.
Section 15.8 Captions. Captions given to the various articles and sections herein are for
convenience only and are not intended to modify or affect the meaning of any of the substantive
provisions hereof.
Section 15.9 Effective Date. The Declaration shall take effect upon recording.
IN WITNESS WHEREOF, the undersigned has caused this Declaration to be executed
effective as of the date of recording.
DECLARANT: BLUE FERN DEVELOPMENT, LLC
a Washington limited liability company
By:
Name:
Title:
24
53383827.1
STATE OF WASHINGTON
COUNTY OF ___________
ss.
I certify that I know or have satisfactory evidence that _________________________ is
the person who appeared before me, and said person acknowledged that said person signed this
instrument, on oath stated that said person was authorized to execute the instrument and
acknowledged it as the _________________________ of BLUE FERN DEVELOPMENT, LLC,
a Washington limited liability company, to be the free and voluntary act of such entity for the
uses and purposes mentioned in the instrument.
Dated this ____ day of _________________________, 2019.
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary public in and for the state of Washington,
residing at
My appointment expires
53383827.1
EXHIBIT A
CANOPY, A PLAT COMMUNITY
DESCRIPTION OF PROPERTY SUBJECT TO DECLARATION
[Add legal]