HomeMy WebLinkAboutL_Draft_Legal_Documents_20170327_v1
51591131.2
FOSTER PEPPER PLLC
Attention: Gary Ackerman
1111 Third Avenue, Suite 3000
Seattle, Washington 98101
DECLARATION
OF
RESTRICTIVE COVENANTS, CONDITIONS,
RESTRICTIONS, RESERVATIONS AND EASEMENTS
FOR
MINTER TOWNHOMES
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#: [_____________]
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ............................................................................................................1
Section 1.1 Definitions....................................................................................................1
ARTICLE 2 OWNERS ASSOCIATION ........................................................................................4
Section 2.1 Establishment ...............................................................................................4
Section 2.2 Form of Association .....................................................................................4
Section 2.3 Articles and Bylaws .....................................................................................4
Section 2.4 Board of Directors ........................................................................................4
Section 2.5 Membership and Voting Rights ...................................................................4
Section 2.6 Transfer of Membership ..............................................................................4
Section 2.7 Books and Records ......................................................................................4
Section 2.8 Inspection of Association Documents, Books, and Records .......................5
ARTICLE 3 MANAGEMENT OF THE ASSOCIATION .............................................................5
Section 3.1 Administration of the Property ....................................................................5
Section 3.2 Authority and Duties of the Board ...............................................................5
Section 3.3 Adoption of Rules and Regulations .............................................................6
Section 3.4 Additional Powers of the Association ..........................................................6
ARTICLE 4 USE RESTRICTIONS AND MAINTENANCE OBLIGATIONS ............................6
Section 4.1 Maintenance of Townhomes and Lots .........................................................6
Section 4.2 Maintenance of Common Maintenance Areas. ............................................7
Section 4.3 Restrictions on Parking and Storage ............................................................7
Section 4.4 Residential Use; Timesharing Prohibited ....................................................7
Section 4.5 No Nuisances ...............................................................................................8
Section 4.6 Restriction on Further Subdivision ..............................................................8
Section 4.7 Garbage and Trash Removal ........................................................................8
Section 4.8 Animal Restrictions .....................................................................................8
Section 4.9 Changes to Townhomes ...............................................................................8
Section 4.10 Exterior Add-ons ..........................................................................................8
Section 4.11 Signs .............................................................................................................8
Section 4.12 Leasing .........................................................................................................9
Section 4.13 Zoning Regulations ......................................................................................9
Section 4.14 Protected Antennas ....................................................................................10
Section 4.15 Use and Disposal of Hazardous Substances ..............................................10
Section 4.16 Outdoor Fires .............................................................................................10
Section 4.17 Lighting ......................................................................................................10
Section 4.18 Exterior Security Devices ..........................................................................10
Section 4.19 Effect on Insurance ....................................................................................10
Section 4.20 Screened Service Areas ..............................................................................10
Section 4.21 Window Coverings ....................................................................................11
Section 4.22 Fences ........................................................................................................11
ARTICLE 5 ASSESSMENTS .......................................................................................................11
Section 5.1 Creation of the Lien and Personal Obligation of Assessments ..................11
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Section 5.2 Allocation of Assessments .........................................................................11
Section 5.3 Association Budgets ...................................................................................12
Section 5.4 Ratification of Budget ................................................................................12
Section 5.5 Supplemental Budget .................................................................................12
Section 5.6 Manner and Time of Payment; Late Charges ............................................12
Section 5.7 Initial Contribution to Working Capital .....................................................12
Section 5.8 Accounts ....................................................................................................12
Section 5.9 Lien ............................................................................................................13
Section 5.10 Waiver of Homestead ................................................................................13
Section 5.11 Special Assessments ..................................................................................13
Section 5.12 Financial Statements; Records ...................................................................13
Section 5.13 Certificate of Assessment ..........................................................................13
Section 5.14 Foreclosure of Assessment Lien; Attorneys Fees and Costs .....................14
Section 5.15 Curing of Default .......................................................................................14
ARTICLE 6 EASEMENTS ...........................................................................................................14
ARTICLE 7 INSURANCE ............................................................................................................15
[Note to Draft: To be updated depending on scope of insurance to be maintained by
Association.] 15
Section 7.1 General Requirements ................................................................................15
Section 7.2 Property Insurance .....................................................................................15
Section 7.3 Commercial General Liability Insurance ...................................................16
Section 7.4 Insurance Claims; Insurance Trustee; Power of Attorney .........................16
Section 7.5 Additional Policy Provisions .....................................................................16
Section 7.6 Fidelity Insurance .......................................................................................17
Section 7.7 Owners’ Individual Insurance ....................................................................17
ARTICLE 8 COMPLIANCE AND ENFORCEMENT ................................................................18
Section 8.1 Enforcement ...............................................................................................18
Section 8.2 No Waiver of Strict Performance ..............................................................18
Section 8.3 Remedies Cumulative ................................................................................18
ARTICLE 9 LIMITATION OF LIABILITY ................................................................................18
Section 9.1 No Personal Liability .................................................................................18
Section 9.2 Indemnification ..........................................................................................19
ARTICLE 10 MORTGAGEE PROTECTION ..............................................................................19
Section 10.1 Priority of Mortgages .................................................................................19
Section 10.2 Effect of Declaration Amendments ...........................................................19
Section 10.3 Rights of Lien Holders ...............................................................................19
Section 10.4 Copies of Notices .......................................................................................19
Section 10.5 Furnishing of Documents ...........................................................................20
ARTICLE 11 ABANDONMENT OF SUBDIVISION STATUS ................................................20
Section 11.1 Duration of Covenants ...............................................................................20
Section 11.2 Abandonment of Subdivision Status ..........................................................20
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ARTICLE 12 AMENDMENT OF DECLARATION ...................................................................20
Section 12.1 Declaration Amendment ............................................................................20
Section 12.2 Amendments to Conform to Construction .................................................20
ARTICLE 13 MISCELLANEOUS ...............................................................................................20
Section 13.1 Notices .......................................................................................................21
Section 13.2 Conveyance: Notice Required ...................................................................21
Section 13.3 Successors and Assigns ..............................................................................21
Section 13.4 Joint and Several Liability .........................................................................21
Section 13.5 Mortgagee’s Acceptance ............................................................................21
Section 13.6 Severability ................................................................................................22
Section 13.7 Construction ...............................................................................................22
Section 13.8 Captions .....................................................................................................22
Section 13.9 Effective Date ............................................................................................22
EXHIBIT A Description of Property
EXHIBIT B Common Expense Liability and Voting
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DECLARATION
OF
RESTRICTIVE COVENANTS, CONDITIONS,
RESTRICTIONS, RESERVATIONS AND EASEMENTS
FOR
MINTER TOWNHOMES
This Declaration of Covenants, Conditions, Restrictions, and Reservations and Easements
for Minter Townhomes is made as of this ____ day of __________________, 2017, 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 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 Townhome 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
Townhome.
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. For the purposes of this Declaration and any amendments
hereto, the following definitions shall apply.
“Articles” mean the articles of incorporation of the Association, as defined below.
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“Assessments” mean all sums chargeable by the Association against a Lot, including,
without limitation: (a) general and special Assessments for Common 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 the Minter Townhomes Association, a Washington nonprofit
corporation, as described more fully in Article 2, 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 Areas” means the Common Areas shown on the Plat.
“Common Expenses” shall mean all expenses and liabilities of the Association,
including, but not limited to, maintenance, painting, repair, and replacement of the Townhomes
as more particularly described in Section 4.1, and the expenses of the Association relating to
insurance and administration of the Association.
“Common Expense Liability” shall mean the allocation of Common Expenses to the
Owners of Townhomes, which shall be based on the projected relative living areas of
Townhomes, as stated in Exhibit B, as it may be amended by the Declarant to reflect material
differences between projected and actual areas of the Townhomes, as constructed. [Note to
Draft: There are multiple ways to allocate Common Expense Liability and Townhouse expenses.
Depending on relative area of Townhomes, Common Expense Liability could simply be allocated
evenly among the owners. The above definition allocates by area.]
“Common Maintenance Areas” has the meaning set forth in Section 4.2.
“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 Minter Townhomes 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.
“Lot” or “Townhome Lot” means any of the lots described in Exhibit A. Ownership of a
Lot or Townhome Lot shall include ownership of the Townhome and improvements now or
hereafter constructed on the Lot.
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“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
2.5.
“Mortgage” means a recorded mortgage or deed of trust that creates a lien against a
Townhome and shall also mean a real estate contract for the sale of a Townhome.
“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 Townhomes
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 Minter Townhomes, and any subsequently filed amendments,
corrections, or addenda thereto.
“Property” means the real property and improvements described on Exhibit A.
“Townhome” means any of the single family residential structures that are now or will in
the future be located on a Lot but shall not include the structural components of the portion of the
Podium located on the Lot.
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“Townhome Garage” means the garage for each Townhome located on the Lot for that
Townhome.
“Utility” shall mean any systems, fixtures, equipment, lines or courses relating to,
without limitation, water; storm sewer; sanitary sewer; television cable; fiber optic
communications; drainage; gas; electric; telephone; pipes; security systems; lighting; heating,
ventilation and air conditioning (“HVAC”); meters; miscellaneous utility conduits; and other
related or similar structures.
ARTICLE 2
OWNERS ASSOCIATION
Section 2.1 Establishment. There is hereby created an association called the Minter
Townhome Owners Association (the “Association”).
Section 2.2 Form of Association. The Association shall be a nonprofit corporation
formed and operated under the laws of the State of Washington.
Section 2.3 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 2.4 Board of Directors. The Association shall be managed by a Board of
Directors (the “Board”). Until Declarant has conveyed 75% of the Lots, Declarant shall appoint
the members of the Board; provided, however, Declarant may relinquish its right to appoint some
or all of the members of the Board by recording an amendment to this Declaration to that effect.
Thereafter, they shall be elected by the members of the Association, as set forth in the Bylaws.
Section 2.5 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 2.6 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 2.7 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
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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 2.8 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 3
MANAGEMENT OF THE ASSOCIATION
Section 3.1 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.
Section 3.2 Authority and Duties of the Board. On behalf of and acting for the
Association, the Board, for the benefit of the Property and the Owners, shall have all powers and
authority permitted to the Board under this Declaration including, but not limited to, the
following:
3.2.1 Levy, collect, and enforce the collection of, Assessments, as more
particularly set forth in Article 5 hereof, to defray expenses attributable to carrying out the duties
and functions of the Association hereunder.
3.2.2 Require any officer or employee of the Association handling or
responsible for Association funds to furnish adequate fidelity insurance, the premiums for which
shall be paid by the Association.
3.2.3 Impose and collect charges for late payment of Assessments as further
provided in Section 5.6 and, after Notice and 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 rules and regulations adopted by the Board, 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 rules and regulations
of the Association.
3.2.4 Enter into agreements with one or more qualified persons to assist it in
carrying out its obligations under this Declaration, collecting Assessments, sending notices to
Members, operating Association meetings, and other regular activities of the Association.
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3.2.5 Contract and pay for any materials, supplies, labor or services which the
Board should determine are necessary or proper for carrying out its powers and duties under this
Declaration, including legal, accounting or other services.
3.2.6 All checks, drafts, or other orders for the payment of money, notes, or
other evidences of indebtedness in the name of the Association shall be signed by such officer or
officers, agent or agents of the Association and in such manner as is from time to time
determined by the Board.
Section 3.3 Adoption of Rules and Regulations. When and to the extent it deems
advisable, the Board may adopt reasonable rules and regulations governing the operation,
maintenance or use of Lots and Townhomes and other matters of mutual concern to the
Members, which rules and regulations are not inconsistent with this Declaration and the Bylaws
and which treat all Members fairly and in a non-discriminatory manner.
Section 3.4 Additional Powers of the Association. In addition to the duties and
powers of the Association, as specified herein and elsewhere in this Declaration, but subject to
the provisions of this Declaration, the Association, acting through its Board, shall have the power
to do all other things which may be deemed reasonably necessary to carry out its duties and the
purpose of this Declaration.
ARTICLE 4
USE RESTRICTIONS AND MAINTENANCE OBLIGATIONS
Section 4.1 Maintenance of Townhomes and Lots. The Association shall be
responsible for maintenance, painting, repair and replacement of the exterior of the Townhomes,
and other exterior improvements on the Lots, and the Owners shall be responsible for the
interiors of their Townhomes, including the garage door. The exterior of the Townhomes shall
include the following: roof, exterior siding, window frames (but not the windows), exterior doors
(but not the garage doors), door frames, patio or deck, porch and exterior screen walls. [Note to
Draft: This assumes that the association will maintain the entire exterior of the Townhomes
(including the roof), which is slightly different from some of your prior, smaller projects. The
above language is what we would typically suggest for a project of this size.] Costs relating to
the exterior of the Townhomes shall be allocated among the Owners in accordance with their
Common Expense Liability. Except for those portions of the Townhomes and other
improvements to be maintained by the Association, each Owner, at the Owner’s cost and
expense, shall promptly and continuously maintain, repair, replace and restore all portions of the
interior of the Townhome on the Owner’s Lot in a sound, 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 has failed to
maintain, repair, replace or restore the portions of the Owner’s Townhome 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.
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Section 4.2 Maintenance of Common Maintenance Areas. The Association shall have
full responsibility for the maintenance, repair, replacement, and improvement 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: [Note to draft: The following list can be reviewed and
supplemented or revised. The below is meant as a suggested starting point.]
4.2.1 The Common Areas, including all private drives and alleys shown on the
Plat which have not been publicly dedicated.
4.2.2 Sidewalks, curbs, and drainage facilities within any private drives and
alleys.
4.2.3 Any private storm drainage facilities within the Plat.
4.2.4 All lawns, trees, shrubs, fences, planters and landscaping on the Property
(whether on the Lots or Common Areas), including the irrigation system, but not including
planters, pots and watering systems installed by Owners on their patios or decks.
4.2.5 Any retaining walls located on Common Areas.
4.2.6 Any fencing installed by Declarant as an amenity.
4.2.7 Any entry monument or signs installed by Declarant.
4.2.8 Any lighting facilities located within the Plat.
4.2.9 Mailboxes.
Section 4.3 Restrictions on Parking and Storage. Each Owner shall have the right to
use the Townhome Garage on the Owner’s Lot for the purpose of parking motor vehicles and for
storage. Parking and storage outside the Townhome or Townhome Garage is prohibited except
as may be permitted in the rules and regulations.
Section 4.4 Residential Use; Timesharing Prohibited. Except as provided below, all
Lots and Structures located thereon 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 Townhome 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 Townhome and Lot or (b) the value of the other Townhomes and
Lots; (iii) for the common social, recreational or other reasonable uses normally incident to such
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purposes; and (iv) for purposes of operating the Association and managing the Property.
Timesharing of Townhomes, as defined in RCW 64.36, is prohibited.
Section 4.5 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 occupants on the Property.
Section 4.6 Restriction on Further Subdivision. No Lot, or any portion of a Lot in the
Property, shall be divided and sold or resold, boundary line changed, or ownership changed or
transferred whereby the ownership of any portion of the Property shall be less than the area
required for the use district in which the Property is located; provided, the foregoing shall not
prohibit deeds of correction, deeds to resolve boundary disputes and similar corrective
instruments.
Section 4.7 Garbage and Trash Removal. No Lot shall be used as a dumping ground
for rubbish, trash, garbage, litter, junk and other debris. All garbage and trash shall be placed in
appropriate sanitary containers for regular disposal or recycling. Each Owner shall be
responsible for the prompt and regular disposal of all of garbage, trash, and junk from the
Owner’s Lot pursuant to the rules and regulations.
Section 4.8 Animal Restrictions. No insects, reptiles, poultry or animals of any kind
shall be raised, bred or kept in any Townhome, or on any Lot, except that domesticated dogs,
cats or other usual household pets (hereinafter referred to as “pets”) may be kept in a Townhome
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 on any Lot. 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 Townhome but on a Lot 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 4.9 Changes to Townhomes. Any changes to the exteriors of the Townhomes
and Lots are subject to prior written approval of the Board. This provision shall not apply to
Declarant during the construction of initial improvements on the Property. Any changes to the
structure of a Townhome or that might affect the structural integrity of a Townhome or the
transmission of sound from one Townhome to another shall also require the approval of the
Board.
Section 4.10 Exterior Add-ons. No awnings, air conditioning units, or other projections
or decorations shall be placed on or hang from the exterior surfaces of any Townhome, including
exterior doors and windows, unless they have been approved by the Board.
Section 4.11 Signs. No sign of any kind shall be displayed to the public view on or
from any Townhome or Lot without the prior consent of the Board. Advertising shall not be
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permitted from any Townhome 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 4.12 Leasing. With respect to the leasing, renting, or creation of any kind of
tenancy of a Townhome, 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 Townhome, 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. The Board may adopt a rule that requires any
Owner desiring to rent a Townhome to have any prospective tenant (other than a relative of the
Owner) screened, at the Owner’s cost, by a tenant screening service designated or approved by
the Board and to furnish the report of the tenant screening service to the Board or its designee
prior to Owner’s entering into a lease with the prospective tenant. All leases and rental
agreements shall be in writing. Copies of all leases and rental agreements shall be delivered to
the Association before the tenancy commences. If any lessee or occupant of a Townhome
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 Townhome 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
Townhome.
Section 4.13 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.
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Section 4.14 Protected Antennas. Owners may not install antennas, dishes or other
receiving devices in or on any portion of the Lots, except as provided in this Section. Each
Owner shall have the right to install a Protected Antenna (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) (but no other kind of antenna, dish or receiving device) on the
Owner’s Lot, subject to such reasonable rules and regulations as the Board may adopt; provided,
however, the Association may prohibit the installation of a Protected Antenna by Owners if the
Association provides a central antenna system that complies with the FCC Rule or any other law,
ordinance, rule or regulation that permits such prohibition. If the provisions of this Section
conflict with any applicable federal, state or local law, ordinance, rule or regulation, the terms of
such law, ordinance, rule or regulation shall prevail, but the conditions and limitations set forth
in this Section shall be enforced to the maximum extent permitted by law.
Section 4.15 Use and Disposal of Hazardous Substances. The Owner of each Lot 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. The owner of each Lot shall not dispose of or discharge any hazardous substance or
materials on any Lot, Common Area, adjacent public street or other area located within the
Property.
Section 4.16 Outdoor Fires. Outdoor barbecues (gas or electric only) may be used for
cooking on the Lots when permitted by law. Reasonable and adequate precautions against fires
must be taken. Excessive smoke or soot accumulation from fires shall not be allowed. No other
outdoor fires shall be permitted on the Property.
Section 4.17 Lighting. Except as may be permitted by Board, exterior lighting visible
from the street shall not be permitted except for (a) approved lighting as originally installed on
the Lot or Townhome; (b) street lights in conformity with an established street lighting program
for the community; (c) seasonal decorative lights (for a length of time permitted by Board); or
(d) front house illumination of model homes or for active construction purposes.
Section 4.18 Exterior Security Devices. No exterior security devices, including,
without limitation, window bars, shall be permitted on any Lot or Townhome. Signs placed on
the Lot or the exterior of a Townhome stating that the Townhome is protected by a security
system are permitted.
Section 4.19 Effect on Insurance. Nothing shall be done or kept in any Townhome 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 Townhome 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.
Section 4.20 Screened Service Areas. Unsightly items must be hidden from view
within a Townhome or Townhome Garage or within a fenced or screened area where they will
not be seen from any Lot or Common Area. Unsightly items shall include, but shall not be
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limited to, garbage and trash, clothes lines, bicycles, recreational gear, outdoor maintenance
equipment, firewood, and ladders. The design and materials used for any fenced or screened
area shall be consistent with the general appearance of the Townhome and must receive prior
approval from the Board.
Section 4.21 Window Coverings. Curtains, blinds, shutters or draperies visible from the
outside of a Townhome must be white or off-white unless otherwise provided in the Rules and
Regulations. Non-traditional or alternative window coverings such as, but not limited to blankets,
sheets, cardboard, towels, posters, stencils, artwork, etc. are prohibited, whether temporary or
permanent.
Section 4.22 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, (ii) fences installed by Declarant, (iii) [rear yard fences on Lots ____ through
____, if approved by the Board]. [Note to Draft: Above is subject to revision, depending on your
plan for fences etc.] 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.
ARTICLE 5
ASSESSMENTS
Section 5.1 Creation of the Lien and Personal Obligation of Assessments. Each
Owner of a Lot with a Townhome, 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 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 5.2 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 Townhome or Lot into compliance
with the provisions of this Declaration. Common Expenses shall be allocated to the Owners in
accordance with Common Expense Liability; provided, however, Declarant shall not be
obligated to pay any Assessment levied against any Lots owned by it unless a Townhome has
been constructed on the Lot and the Townhome is occupied. No Owner may exempt himself or
herself from liability for Assessments by abandoning his or her Townhome.
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Section 5.3 Association Budgets. The initial budget for the Association shall be
adopted by Declarant, which shall be based on a total development consisting of 62 Townhomes
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. Assessments
on each Lot shall commence upon the closing of the sale by Declarant of the Lot with a
completed Townhome or upon the occupancy of the Townhome, whichever is earlier. Until
Assessments have commenced on all Lots, Declarant shall pay to the Association an amount
equal to the excess, if any, of actual expenses of the Association over the amount of Assessments
levied by the Association for operating expenses, excluding amounts levied for reserves. The
Declarant shall be entitled to be reimbursed for any prepaid expenses of the Association.
Section 5.4 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 5.5 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 5.4.
Section 5.6 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.
Section 5.7 Initial Contribution to Working Capital. In connection with the closing of
the sale of each Lot with a completed Townhome, 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 5.8 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.
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Section 5.9 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 5.10 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 5.11 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 5.12 Financial Statements; Records. The Board shall prepare or cause to be
prepared for any fiscal year in which the Association levies or collects any Assessments, a
balance sheet and an operating (income/expense) statement for the Association which shall
include a schedule of delinquent Assessments identified by Lot; provided, however, such
documents need not be prepared by a certified public accountant unless requested by the Board
or a majority of the Owners. 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.
Section 5.13 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.
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Section 5.14 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 5.15 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 6
EASEMENTS
Section 6.1 Grant of 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 Utilities. 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 such Utility
serves another Lot or Lots.
Section 6.2 Use of Common Areas. Each Owner shall have the right to use the
Common Areas in common with all other Owners, subject to this Declaration, the Bylaws, any
rules and regulations adopted by the Association, including the right of the Association to totally
bar or restrict use of portions of the Common Maintenance Areas 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.
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Section 6.3 Delegation of Use. Any Member may delegate, in accordance with such
rules and regulations as the Association shall promulgate, his or her right of use and enjoyment
of the Easements to family members, guests, and tenants of such Member. Each Owner shall be
responsible for informing such 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 Easements.
Section 6.4 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 6.5 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 7
INSURANCE
[Note to Draft: The below represents our suggested insurance scheme for a project of this type.
This is slightly different from the insurance scheme used for some of your other, smaller
projects.]
Section 7.1 General Requirements. Commencing not later than the time of the first
conveyance of a Lot to a person other than the Declarant, the Association shall maintain, to the
extent reasonably available, a policy or policies and bonds necessary to provide: (a) commercial
general liability insurance; (b) fidelity insurance; (c) workers’ compensation insurance to the
extent required by applicable laws; (d) directors and officers liability insurance; and (e) such
other insurance as the Board deems advisable. 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, authorized to do business in
the state of Washington, and meet the specific requirements of FHLMC, FNMA, HUD and VA
regarding the qualifications of insurance carriers (so long as any of them is a holder of a
Mortgage or Owner of a Lot), except to the extent such coverage is not available or has been
waived in writing by them. All such insurance policies shall provide that coverage may not be
cancelled or substantially reduced without at least 45 days’ prior written notice (10 days for
cancellation for nonpayment of premium) to the Association as the first named insured therein.
The cost of all insurance obtained by the Association shall be a Common Expense.
Section 7.2 Property Insurance. The Association shall provide all risk or special cause
of loss coverage in an amount equal to the full replacement cost of the Townhomes, the interior
partitions, equipment, fixtures, betterments and improvements in or serving the Townhomes,
whether installed originally or later, intended as a permanent part of the Townhome and personal
property of the Association with an “Agreed Amount Endorsement” or equivalent endorsement
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and, if required by HUD, FNMA or FHLMC, construction code endorsements, such as a
“Demolition Cost Endorsement,” a “Contingent Liability from Operation of Building Laws
Endorsement,” an “Increased Cost of Construction Endorsement,” and such other endorsements
as HUD, FNMA or FHLMC deems necessary and are available.
Section 7.3 Commercial General Liability Insurance. The liability insurance coverage
shall insure the Board, the Association, the Owners, the Declarant, and the Managing Agent with
a “Severability of Interest Endorsement” or equivalent coverage that would preclude the insurer
from denying the claim of an Owner because of the negligent acts of the Association or of
another Owner. The limits of liability shall be in amounts generally required by Mortgagees for
projects of similar construction, location and use but shall be at least $1,000,000 combined single
limit for bodily injury and property damage per occurrence and $2,000,000 general aggregate.
Section 7.4 Insurance Claims; Insurance Trustee; Power of Attorney. The named
insured under the policies referred to in Section 7.3 shall be the Association, as trustee for each
of the Owners in accordance with their respective interests in the Lots. Whether claims are filed
under any insurance policy of the Association shall be at the Board’s reasonable discretion and
control; and only the Board is authorized to file claims under the Association’s policies. The
insurance proceeds may be made payable to any trustee with which the Association enters into
an insurance trust agreement, or any successor trustee, who shall have exclusive authority to
negotiate losses under the policies. Each Owner appoints the Association, or any insurance
trustee or successor trustee designated by the Association, as attorney-in-fact for the purpose of
purchasing and maintaining such insurance, including the collection and appropriate disposition
of the proceeds thereof, the negotiation of losses and execution of releases of liability, the
execution of all documents, and the performance of all other acts necessary to accomplish such
purposes.
Section 7.5 Additional Policy Provisions. The insurance obtained pursuant to Section
7.3 shall contain the following provisions and limitations:
7.5.1 Each Owner is an insured person under the policy with respect to
liability arising out of the Owner’s interest in the Owner’s Lot or membership in the Association.
7.5.2 Such policies shall not provide for contribution by or assessment
against Mortgagees or become a lien on the property superior to the lien of a first Mortgage.
7.5.3 If, at the time of the loss under the policy, there is other insurance
in the name of the Owner covering the same risk covered by the policy, the Association’s policy
provides primary insurance.
7.5.4 Coverage shall not be prejudiced by (a) any act, omission, or
neglect of the Owners of Lots when such act or neglect is not within the scope of the Owner’s
authority on behalf of the Association, or (b) failure of the Association to comply with any
warranty or condition with regard to any portion of the premises over which the Association has
no control.
7.5.5 A waiver of subrogation by the insurer as to any and all claims
against the Association, the Owner of any Lot, and/or their respective agents, members of the
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Owner’s household, employees, or lessees, and of any defenses based upon co-insurance or upon
invalidity arising from the acts of the insured.
7.5.6 A standard mortgagee clause which shall:
7.5.6.1 Provide that any reference to a mortgagee in the policy
shall mean and include all Mortgagees of any Lot in their respective order of preference, whether
or not named therein;
7.5.6.2 Provide that such insurance as to the interest of any
Mortgagee shall not be invalidated by any act or neglect of the Board or Owners or any persons
under any of them;
7.5.6.3 Waive any provision invalidating such mortgage clause by
reason of the failure of any Mortgagee to notify the insurer of any hazardous use or vacancy, any
requirement that the Mortgagee pay any premium thereon, and any contribution clause; and
7.5.6.4 Provide that, without affecting any protection afforded by
such mortgagee clause, any proceeds payable under such policy shall be payable to the
Association or the insurance trustee.
Section 7.6 Fidelity Insurance. The required fidelity insurance shall afford coverage
to protect against dishonest acts on the part of officers, directors, trustees, and employees of the
Association and all other persons who handle or are responsible for handling funds of or
administered by the Association. The Managing Agent shall maintain fidelity insurance for its
officers, employees, and agents who handle or who are responsible for handling funds of, or
funds administered by the Association. All such fidelity insurance shall name the Association as
an obligee and shall be not less than the estimated maximum of funds, including reserve funds, in
custody of the Association at any time during the term of each policy, but, in no event, shall the
aggregate amount of insurance be less than three months’ aggregate Assessments plus reserve
funds. The policy shall contain waivers of any defense based upon the exclusion of persons who
serve without compensation from any definition of “employee” or similar expression.
Section 7.7 Owners’ Individual Insurance. Each Owner of a Lot is required to obtain
and maintain an owner’s insurance comparable to a standard condominium owner’s insurance
policy. No Owner shall maintain insurance coverage in any manner that would decrease the
amount that the Association, or any trustee for the Association, on behalf of all of the Lot
Owners, would otherwise realize under any insurance policy which the Association may have in
force at any particular time. The Board may establish, in the Rules and Regulations of the
Association, the minimum coverage for Lot Owners’ policies, provide that minimum coverage
amount of each Owner’s individual property insurance policy shall not be less than the amount
of the deductible under the policy of property insurance obtained by the Association. The
Association shall have right but not the obligation to monitor the maintenance of such insurance
by Owners and obtain such insurance for the Owner if the Owner fails to obtain or maintain it
and specially assess the cost thereof to the Owner. At closing each purchaser of a Lot shall
deliver to the closing agent and the Association a certificate of insurance or other proof that such
insurance has been obtained. In addition, in order to maintain current records, the Board may
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request on an annual basis, and each Owner shall deliver, evidence that the Owner has obtained
and is maintaining the insurance coverage required by this Section. Failure to produce such
evidence may result in the Board’s exercising the procurement rights set forth in this Section
and/or levying fines for non-compliance as set forth in a previously approved schedule thereof.
ARTICLE 8
COMPLIANCE AND ENFORCEMENT
Section 8.1 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.
8.1.2 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 8.2 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 8.3 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.
ARTICLE 9
LIMITATION OF LIABILITY
Section 9.1 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 3 or
Article 7.
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Section 9.2 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 10
MORTGAGEE PROTECTION
Section 10.1 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 10.2 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
this Article conferring rights upon Mortgagees which is inconsistent with any other provision of
this Declaration shall control over such other inconsistent provisions.
Section 10.3 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 10.4 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
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notice of all meetings of the Association and be permitted to designate a representative to attend
such meetings.
Section 10.5 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 11
ABANDONMENT OF SUBDIVISION STATUS
Section 11.1 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 12.
Section 11.2 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 12
AMENDMENT OF DECLARATION
Section 12.1 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
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 12.2 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 13
MISCELLANEOUS
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Section 13.1 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:
13.1.1.1 If to a Member, other than Declarant: to the mailing address of
such Member maintained by the Association, pursuant to the Bylaws.
13.1.1.2 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
13.1.1.3 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 13.2 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.
Section 13.3 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 13.4 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 13.5 Mortgagee’s Acceptance.
13.5.1 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.
13.5.2 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
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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 13.6 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 13.7 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 13.8 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 13.9 Effective Date. The Declaration shall take effect upon recording.
[Remainder of page intentionally left blank; signatures follow.]
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IN WITNESS WHEREOF, the undersigned has caused this Declaration to be executed
effective as of the date of recording.
DECLARANT: [_____________],
a Washington limited liability company
By:
Name:
Title:
24
51591131.2
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 _________________________, 2017.
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary public in and for the state of Washington,
residing at
My appointment expires
EXHIBIT A
51591131.2
EXHIBIT A
MINTER TOWNHOMES
DESCRIPTION OF PROPERTY SUBJECT TO DECLARATION
EXHIBIT B
51591131.2
EXHIBIT B
MINTER TOWNHOMES
Common Expense Liability and Voting
Lot Residential Living Area CEL Votes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
2
51591131.2
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
3
51591131.2
60
61
62
Total: 100%
Legend:
CEL – Common Expense Liability