DECLARATION OF PROTECTIVE COVENANTS
THE DECLARATION is made this 20th day of September, 1979, by M.D.C.
CORPORATION, a
Colorado corporation, whose address is 3600 South Yosemite, Denver,
Colorado 80237,
hereinafter call “Declarant.”
WITNESSETH:
WHEREAS, Declarant is the present record title holder and owner of
that certain real property
situate in the County of Boulder, State of Colorado, which is more
particularly described on
Exhibit A attached hereto and incorporated herein by reference, hereinafter
referred to as the
“Property”; and WHEREAS, Declarant is desirous of subjection
the Property to the conditions, covenants,
restrictions and reservations hereinafter set forth to insure the
proper use and appropriate
development and improvement of the Property so as to: (a) protect
the Owners and tenants of
Building Sites; (b) prevent the erection on the Property of structures
constructed of improper or
unsuitable materials or with improper quality and methods of construction;
(c) insure adequate
and reasonably consistent development of the Property; (d) encourage
and insure the erection of
attractively designed permanent improvements appropriately located
within the Property in order
to achieve harmonious appearance and function; (e) provide adequate
off-street parking and
loading facilities; and (f) generally promote the welfare and safety
of the occupants, tenants and
Owners of Building Sites.
NOW, THEREFORE, Declarant hereby declares that all of the Property
and each and every
separate parcel thereof shall be held, sold, transferred, conveyed,
encumbered and used subject
to the following covenants, conditions, restrictions and reservations,
all of which are for the
purposed of protecting and preserving the value and desirability of,
and which shall run with the
Property, and all of which shall be binding upon and inure to the
benefit of all parties having any
right, title or interest in and to the Property or any part thereof,
their heirs, successors and
assigns.
ARTICLE I
DEFINITIONS
1.1. “ Building Site” shall mean any plot of
land within the Property, the size and
dimensions of which shall be established by the legal description
in the original conveyance from
Declarant to the first fee Owner of said plot of land, other than
Declarant. A Building Site may also
be established by Declarant by and instrument in writing, executed,
acknowledged and recorded
by the Declarant, which designates a plot of land as a Building Site
for the purpose of these
Protective Covenants.
1.2. “Declarant” means the Declarant named herein and
such successor or
successors as may be designated hereafter by Declarant by written
notice duly recorded.
1.3 “Improvements” shall mean and include, but shall not
be deemed to be limited
to, buildings, parking areas, parking structures, driveways, loading
areas, signs, utilities, fences,
walls, lawns, landscaping, hedges, mass plantings, poles, grading
changes, plazas, walkways,
bridges, tennis courts, swimming pools, recreational facilities, exterior
lighting facilities,
waterways, holding ponds and any other physical structures or changes
of any type or kind made
to or upon any land with the Property.
1.4 “Owner” shall mean and refer to the record owner,
whether one or more
personal or entities, of fee simple title to any Building Site, including
contract sellers, but
excluding those having such interest merely as security for the performance
of an obligation,
provided, however, that an Owner may, by written notice to Declarant,
assign all or part of his
rights, but not his duties, hereunder to such Owner’s tenant.
1.5 “Property Used in Common” shall mean and refer to
those areas of the
Property devoted to the common use and enjoyment of Owners of all
of the Building Sites,
including, but not limited to, any parks. median strips, private streets,
entrance parks, drainage
areas, bicycle paths and platted landscape easements.
1.6. “Owners Association” shall mean and refer to the
Colorado non-profit
corporation organized by Declarant pursuant to Paragraph 9.1 below.
ARTICLE II
PERFORMANCE STANDARDS AND PERMITTED USES
2.1. Performance Standards. No noxious, illegal, dangerous
or offensive trade,
services or activities shall be conducted on any Bluilding Site nor
shall anything be done thereon
which may be or become an annoyance or nuisance to the Owners, tenants
or occupants of other
Building Sites within the Property by reason of unsightliess or the
excessive emission of fumes,
odors, glare, vibration, gases, radiation, dust, liquid waste, smoke
or noise.
2.2. Permitted Uses. Building Sites shall be utilized only for engineering,
research
facilities, laboratories, light industrial uses, offices, distribution
and warehousing, and such other
uses allowed under local zoning ordinances which Declarant, or its
designee, shall permit in its
sole discretion.
2.3. Division or Combining of Building Sites. Except with respect
to land owned by
Declarant, no Building Site may be divided, subdivided or a fractional
portion thereof sold or
conveyed so as to be held in divided ownership (not including joint
ownership), nor may any
Building Site be combined with any other Building Site, without the
prior written discretionary
consent of Declarant. In connection with the consideration of a request
by an Owner for consent
to any such division or combination, Declarant may request such information
as Declarant deems
necessary or desirable to properly consider the request. After receipt
of such information, the
procedures and time periods for response contained in Paragraph 4.3
below shall be applicable.
ARTICLE III
REGULATION or IMPROVEMENTS
3.1. Improvements, Generally. No Improvements shall be constructed,
erected,
placed, altered, maintained or permitted on any Building Site until
plans and specifications
therefor have been approved by Declarant, or its designee, and the
City of Louisville, as more
fully set forth hereafter in Article IV of these Protective Covenants.
3.2. Limitation or Consent. No consent by Declarant to waive or grant
a variance
from any limitation, restriction, condition, or covenant pertaining
to the construction or
maintenance of any Improvement shall be effective where the result
of such consent would be
contrary to or inconsistent with any applicable zoning ordinance,
annexation or zoning
agreement, planned unit development plan, or other governmental ordinance,
rule or regulation,
unless prior consent thereto is granted by the appropriate governmental
body or official.
3.3. Setbacks. No building or structure shall at any time be erected
or permitted on
any Building Site within thirty (30) feet from the boundary line of
any street right-of-way adjoining
the same, or within ten (10) feet from the side boundary line of any
Building Site, or within twenty
(20) feet from the rear boundary line of any Building Site, except
that there shall be no such rear
setback required if railroad tracks exist along the rear lot line
of any Building Site. In the case of a
Building Site having more or less than four sides, Declarant shall
determine the required setbacks
with respect thereto, in a manner consistent with the intent of the
foregoing provisions. Subject to
the provisions of Section 3.2 above, Declarant may, at its sole and
absolute discretion, grant
variances, in writing, from the above setback requirements when same
would constitute an
unreasonable hardship when applied to a particular Building Site.
3.4 Off-Street Parking. No parking shall be permitted on any street
or road or at any
place other than on the paved parking spaces provided for and described
herein below. Each
Owner and tenant shall be responsible for compliance with the foregoing
by his employees and
visitors. Adequate off-street parking shall be provided by each Owner
and tenant for his
employees, customers and visitors. All off-street parking, access
drives and loading areas shall
be paved and properly graded to assure proper drainage. Parking shall
not be permitted within
twenty (20) feet of any street right-of-way. Proper visual screening
must be provided between any
parking lot and any street. Curb cuts (with X-pans) shall be utilized
as opposed to driveways.
Access shall be limited to one cut per off-street parking lot unless
special conditions merit more
cuts. Where possible, curb cuts on opposite sides of a street shall
be directly accross from each
other. Also, where possible, curb cuts shall be provided at the common
property line of two
adjoining Building Sites for joint access.
3.5. Loading Areas. Truck loading and receiving areas shall not be
permitted in the
front yard of a Building Site without the prior written consent of
Declarant. Proper visual screening
must be provided between any truck loading, receiving, service or
similar area and any street,
unless Declarant, in its sole and absolute discretion, approves the
absence of such screening,
subject to the provisions to Paragraph 3.2 above.
3.6. Outside Storage. No materials, supplies, equipment, finished
or semi-finished
products or articles of any nature shall be stored or permitted to
remain on any Building Site
without the prior written consent of Declarant. All such out-side
storage areas permitted and all
waste and rubbish storage facilities shall be properly screened and
shall have an all-weather
surface.
3.7. Landscaping.
A. Design. All Building Sites shall be landscaped only in accordance
with a plan
submitted to and approved in writing by Declarant prior to any development
of the Building Site.
Such landscaping plan shall include information regarding the type
of sodding, the type of
seeding, types of trees, hedges and shrubs and information regarding
other customary landscape
treatment for the entire Building Site, including fences, walls and
screening. Each Owner shall be
obligated to install on his Building Site “street trees”
in accordance with Section 16.20.020 of the
Louisville Municipal Code. It shall be the responsibility of the Owner
of a Building Site to
landscape and maintain the area between the boundary lines of said
Owner’s Building Site and
the curbs of any public roadways adjacent to such Building Site, including
any intervening
sidewalks. A twenty (20) foot minimum landscaped setback adjacent
to all streets shall be
created. Berms and landscaping on-site, in parking areas, and adjacent
to buildings shall be
utilized to minimize the impact of development. Undeveloped portions
of Building Sites shall be
maintained at least in natural grasses. All landscaping shall be undertaken
and completed in
accordance with such approved plan and said plan may not be altered,
amended or revised
without submitting the revised landscaping plan for the prior written
approval of Declarant. Said
approval shall be in general conformance and similarity to the typical
landscape plan of a Building
Site approved by the City of Louisville as a part of the Planned Unit
Development Plan for the
Property. Notwithstanding any of the foregoing to the contrary, it
shall be the responsibility of the
Owners Association, after same is formed, to maintain all landscaping
contained within any
platted landscape easements.
B. Completion. All landscaping required hereunder or otherwise to
be provided on
any Building Site shall be completed within sixty (60) days alter
the substantial completion of
construction of any buildings to be constructed on the Building Site;
provided, however, if weather
conditions do not at such time so permit, then such landscaping shall
be completed as soon
thereafter as weather conditions permit. Notwithstanding the foregoing,
all landscaping of each
Building Site shall be completed within one year of the issuance of
the Certificate of Occupancy
for the building on such Building Site. If any Owner fails to undertake
and complete his
landscaping within the time limit set forth above, Declarant may,
at its option, after giving the
Owner ten (10) days’ prior written notice forwarded to such
Owner (unless within said ten (1O)
day period the Owner of the Building Site shall proceed and thereafter
pursue with diligence the
completion of such landscaping) undertake and complete the landscaping
of the Building Site in
accordance with the approved landscaping plan. If Declarant undertakes
and completes such
landscaping because of the failure of an Owner to complete the same,
the costs of such
landscaping shall be assessed against the Owner, and if said assessment
is not paid within thirty
(30) days after written notice of such assessment from Declarant,
said assessment will constitute
a lien on the Building Site and may be enforced as set forth in Article
VI hereafter.
3.8. Maintenance.
A. Construction Period. During construction, a Building Site shall
be kept cleaned
upon a reasonable periodic basis, and all trash, rubbish, and debris
shall be promptly removed
therefrom after such construction or work is completed.
B. Site and Building Maintenance. Each Owner shall keep his Improvements
in a
safe, clean, and neat condition; shall remove, replace or restore
all such items not in such
condition, and shall comply in all respects with all government, health
and police requirements.
Each Owner, tenant or occupant shall remove at his own expense any
rubbish or trash of any
character which may accumulate on his property and shall keep unlandscaped
areas mowed.
Rubbish, trash, garbage or other waste shall be kept only in sanitary
containers. All equipment for
the storage or disposal of such materials shall be kept in a clean
and sanitary condition. No trash,
litter, junk, boxes, containers, bottles, cans, implements, machinery,
lumber or other building
materials shall be permitted to remain exposed on any Building Site
except as necessary during
the construction period. Rubbish and trash shall not be disposed of
at the Property by burning in
open fires or incinerators.
C. Landscape and Grounds Maintenance. The landscape development shall
be
maintained in a neat and adequate manner which shall include lawns
mowed, hedges trimmed,
adequate watering, replacement of dead, diseased or unsightly landscaping,
removal of weeds
from planted areas and appropriate pruning of plant materials.
3.9. Signs. No signs shall be permitted anywhere within the Property
without the prior
written approval of Declarant. All signs shall conform with sign standards
for the Property as
approved by the City of Louisville, and all applicable laws and governmental
regulations. Site
signs shall conform to a single design, variable by material and color
only.
3.10. Utility Connectlons. All utility connections, including all
electrical and telephone
connections and installations of wires to buildings, shall be made
underground from the nearest
available power source, except that during the construction of a building
structure, the contractor
or builder may install temporary overhead utility line which shall
be promptly removed upon
completion of construction. No transformer electric, gas or other
meter of any type or other
apparatus shall be located on any power pole nor hung on the outside
of any building, but the
same shall be placed on or below the surface of the Property and where
placed on the surface
shall be adequately screened and fenced. The Declarant hereby reserves
and shall have the
right, at any time, to grant on any Building Site easements for utilities
within the setbacks of any
Building Sites to other Owners of Building Sites or to the suppliers
of such utilities.
3.11. Mechanical Equipment. No heating, air conditioning, electrical
or other
equipment shall be installed on the roof of any building or structure
or hung on exterior walls
unless the same is screened, covered and installed in a manner which,
shall first have been
approved in writing by Declarant, except that solar energy collectors
or panels, if used, may be
installed on the roof of any building or structure or in any other
exposed location, if approved by
Declarant.
3.12. Height Restrictions. No improvement, building or appurtenance,
including, but
not limited to, water towers, standpipes, penthouses, elevators or
elevator equipment, stairways.
ventilating fans or similar equipment required to operate and maintain
any building, fire or parapet
walls, skylights, tanks, cooling or other towers, wireless radio or
television masts, or flagpoles,
shall exceed a height of 50 feet above the adjacent finished building
grade without the prior,
discretionary written approval of Declarant, not to be given in contravention
of any local
ordinances. rules or regulations.
3.13. On-Site Drainage. Each Building site Owner shall be required
to provided
adequate drainage facilities, including on-site ponds, if necessary,
The amount of ponding shall
be at least sufficient to accommodate the estimated change in storm
water runoff resulting from
the placement of buildings and parking areas on Building Sites. Said
ponding storage shall be the
difference between the amount of runoff generated by a five (5) year
frequency storm on
undeveloped ground and the runoff generated by a 100 year frequency
storm on the developed
ground. Discharge into on-site drainage channels, storm sewers and
streets shall be limited to the
runoff that should result from a five (5) year frequency storm over
undeveloped ground. The
change in storm water runoff between historical (undeveloped conditions)
and developed
conditions shall be measured as the increased flow resulting from
changes in coefficient of storm
water runoff and the time of concentration. An engineer’s report
comparing the before and after
conditions and recommending methods of detention and adequate methods
of drainage shall be
submitted by the Owner to Declarant for approval at the same time
as submission of the plans
and specifications for any building as herein provided. Detention
may be accomplished by
providing ponding storage of storm water on rooftops, in parking areas,
in the landscaped areas,
in graded drainage swales and by such other methods as may be approved
by the Declarant.
3.14. Mining. No derrick or other structure designed for use in boring
for oil or natural
gas shall be erected, placed, or permitted upon any part of any Building
Site, nor shall any oil,
natural gas, petroleum, asphaltum or hydrocarbon products or minerals
of any kind be produced
or extracted therefrom. No quarrying, mining, dredging or excavating,
of any type or nature, shall
be done on any Building Site.
3.15. Lighting. Lighting shall be of a type and installation such
that no direct glare is
viewed from adjoining properties both in and out of the Property.
3.16. Fences. Those fences facing any street shall be of a solid wood
type or of a type
with similar aesthetic appeal or screening from view with plant material.
Fences shall not be
located in the landscape setback.
3.17. Bicycle Storage. Adequate bicycle storage facilities shall be
provided at each
Building Site.
3.18. Vehicle Storage Restrictions. No Building Site, including drives
and parking
areas, shall be used as a storage, display or accommodation area for
any type of abandoned
vehicle, house trailer, camping trailer, boat trailer, hauling trailer,
running gear, boat or
accessories thereto, commercial truck, recreational vehicle, or any
type of commercial van except
as a temporary expedience for loading, delivery, emergency, etc.,
excluding the parking of
vehicles used in the normal course of business by the occupant of
the Building Site.
ARTICLE IV
ARCHITECTURAL CONTROL
4.1. Approval of Plans. No Improvement shall be commenced, constructed,
placed,
erected or maintained upon any Building Site, nor shall any exterior
addition to or change or
alteration thereof be made, unless and until complete construction
plans and specifications
therefor, as more fully described hereafter, shall have first been
submitted to and approved in
writing by Declarant and the City of Louisville. Subject to city approval,
the Declarant shall
exercise its sole and absolute discretion to see that all Improvements
conform and harmonize
with all other existing or proposed Improvements with respect to external
design, color scheme,
shape, height, type of materials, quality of workmanship, location
of Building Sites, topography,
finished grade elevation, circulation patterns, vehicular access,
pedestrian circulation, parking
and storage areas, landscaping and easements, so as to assure that
the Property will consist of
an attractive, integrated development wherein all Improvements are
designed to conform to and
complement natural topography and existing Improvements. All Improvements
shall be in strict
accordance with any and all federal, state and local laws, codes,
ordinances, rules and
regulations, including, but not limited to, the Annexation and Zoning
Agreement for the Property,
the Planned Unit Development Plan for the Property and any other applicable
zoning, subdivision
and building codes.
4.2. Plans and Specifications. The construction plans and specifications
to be
submitted to Declarant by an Owner, at such Owner’s expense,
shall include the following, and
shall be submitted in writing over the signature of the Owner or his
authorized agent:
a) Architectural plans and specifications, including type of materials,
colors,
mechanical Systems and structural Systems;
b) Site plan showing the location and design of all Improvements,
fences,
landscaping, streets, signs, roadways, parking areas, number, size
and layout of parking spaces,
loading areas, sidewalks, retaining walls, easements, utilities, driveways
and curb cuts;
c) Traffic and drainage engineering studies;
d) Complete grading and drainage plans, showing all relevant elevations,
drainage
and retention areas and point flows;
e) Proposed development schedule;
f) Description of proposed operations or uses, including number of
employees,
present pay scale and needed educational levels;
g) Characteristics of the process of the industrial type, with particular
emphasis on
measures that will be taken to mitigate adverse characteristics such
as water, noise and air
pollution;
h) Anticipated water and sewer needs;
i) Material transportation requirements (rail and/or truck); and
j) Such other information as Declarant or the City of Louisville may
deem pertinent
in the evaluation of the site plan, or may be required by Declarant
in order to perform its function
hereunder.
4.3. Procedures. Declarant shall approve or disapprove all plans and
specifications
within thirty (30) days after the submission of all such pertinent
materials, In the event Declarant
fails to approve or disapprove such plans and specifications within
thirty (30) days of the submittal
thereof, then Owner shall submit to Declarant a notice of nonaction.
In the event Declarant fails to
approve or disapprove such plans and specifications within ten (10)
days after receipt of a notice
of nonactlion, then such approval shall not be required, provided
that no Improvement which
violates any of the covenants or restrictions contained hereon shall
be erected or be allowed to
remain on any Building Site. The issuance of a building permit or
license, which may be in
contravention or these Protective Covenants, shall not prevent Declarant
from enforcing these
provisions.
4.4. Disclaimer of Liability. Neither Declarant, or its designee,
or their respective
successors or assigns, shall be liable in damages to anyone submitting
plans to them for
approval, or to any Owner of land affected by these Protective Covenants,
by reason of mistake
in judgment, negligence or nonfeasance arising out of or in connection
with the approval or
disapproval or failure to approve any such plans and specifications.
Every person who submits
plans for approval agrees, by submission of such plans and specifications,
and every Owner or
tenant of any of said Building Sites agrees, by acquiring title thereto
or an interest therein, that he
will not bring any action or suit against Declarant, its designee,
or their successors or assigns, to
recover any such damages.
ARTICLE V
RIGHT OF REPURCHASE BY DECLARANT
5.1. Right of Repurchase. If any Owner fails to commence
construction of a building
upon a Building Site purchased by such Owner within two-years from
the date of the conveyance
of the Building Site from Declarant to such Owner, other than Declarant,
Declarant shall have the
right to repurchase such Building Site at any time within one hundred
eighty (180) days after the
expiration of said two-year period upon giving to said Owner fifteen
(15) days’ prior written notice
of its intention to repurchase such Building Site. Such right of repurchase
shall under no
circumstances extend beyond twenty-one (21) years from the date of
recordation of these
Protective Covenants. The repurchase price shall be the price paid
by such Owner for the
Building Site, less the unpaid balance of any mortgage or deed of
trust or other amounts owing
with respect to such Building Site, the nonpayment of which may be
assessed as liens against
the Building Site. The provisions of this Article shall be specifically
enforceable by Declarant as
set forth in Article VI of these Protective Covenants. If Declarant
fails to give written notice
exercising its right of repurchase within the one hundred eighty (180)
day period aforesaid, said
right of repurchase shall be deemed waived. “Commencement of
construction of a building” as
used herein means that the Owner of the Building Site: (I) has obtained
the approval of Declarant
as set forth in Article IV hereof; (2) has obtained permits from the
appropriate governmental
authorities authorizing construction of a building and Improvements
as approved by Declarant; (3)
has entered into a construction contract with a contractor licensed
to do business in Colorado for
construction of a building; (4) has expended no less than the sum
of Ten Thousand Dollars
($10,000.00) pursuant to such construction contract for on-site construction
work, and (5) is
diligently pursuing the completion of the building.
ARTICLE VI
ENFORCEMENT
6.1. Abatement and Suit. The conditions, covenants, restrictions and
reservations herein
contained shall run with the land, and shall be binding upon and inure
to the benefit of Declarant
and the Owners of every Building Site on the Property. These conditions,
covenants, reservations
and restrictions may be enforced as provided hereinafter by each Owner
and/or by Declarant
acting for itself and as trustee on behalf all of the Owners. Each
Owner, by acquiring an interest
in the Properly, shall appoint irrevocably Declarant as his attorney
in-fact for such purposes.
Violation of any condition, covenant, restriction or reservation contained
herein shall give the
Declarant and to each Owner the right to bring suit in law of equity
against the party or parties
violating or intending to violate any such covenants, conditions,
restrictions and/or reservations,
to enjoin them from so doing. to cause any such violation to be remedied,
or to recover damages
resulting from such violation. In addition, violation of any condition,
covenant, restriction or
reservation here in contained shall give to Declarant the right to
enter upon the portion of the
Property wherein said violation or breach exists and to summarily
abate and remove at the
expense of the Owner any structure, thing or condition that may be
or exist thereon contrary to
the interest and meaning of the provisions hereof.
6.2. Deemed to Constitute a Nuisance. Every violation these Protective
Covenants
or any part thereof is hereby declared to be and to constitute a nuisance,
and every public or
private remedy allowed therefore by law or equity against a Owner,
tenant or occupant shall be
applicable against ever such violation and may be exercised by Declarant
or an Owner.
6. 3. Attorneys’ Fees. In any legal or equitable proceeding
for the enforcement hereof
or to restrain the violation of this Declaration or any provision
hereof, the losing party or parties
shall pay the reasonable attorneys’ fees of the prevailing party
or parties in the amount as maybe
fixed by the Court in such proceedings. All remedies provided herein
or at law or in equity shall be
cumulative and not exclusive.
6.4. Non-Waiver. The failure of Declarant or any Owner to enforce
any of the
conditions, covenants, restrictions or reservations herein contained
shall in no event be deemed
to be a waiver of the right to do so for subsequent violations or
of the right to enforce any other
conditions, covenants, restrictions or reservations, and Declarant
shall not be liable there-for.
ARTICLE VII
TERM, TERMINATION, MODIFICATION AND ASSIGNMENTS
7.1. Term. This Declaration, every provision hereof and
each and every covenant,
condition, restriction and reservation contained herein, shall continue
in full force and effect for a
period of twenty-five (25) years from the date of recordation hereof,
and shall thereafter be
renewed automatically from year to year unless and until terminated
as hereinafter provided.
7. 2. Termination and Modification. This Declaration or any provision
hereof, or any
covenant, condition, restriction, or reservation contained herein,
may be terminated, extended,
modified or amended, as to the whole of the Property or any portion
thereof, with the written
consent of the Owners of Sixty-Five-Percent (65%) of the Property,
on an acreage basis, (other
than Property Used in Common) subject to these restrictions; provided,
however, that during the
initial twenty-five (25) year term of these Protective Covenants,
no such termination, extension,
modification or amendment shall be effective without the prior written
approval of Declarant. Any
such termination, extension, modification or amendment shall be immediately
effective upon the
recording of a proper instrument in writing, executed and acknowledged
by such Owners (and by
Declarant if required herein) in the office of the Clerk and Recorder
of Boulder County, Colorado.
7. 3. Assignment orDeclarant’s Rights and Duties. All or any
part of the rights,
powers and reservations of Declarant herein contained maybe assigned
by Declarant, in whole or
in part, to any person, corporation or association, including, without
limitation, the Owners
Association, which will assume any or all of the duties of Declarant
hereunder and upon any such
person, Corporation or association’s evidencing its consent
in writing to accept such assignment,
said assignee shall, to the extent of such assignment, assume Declarant’s
duties hereunder,
have the same rights and powers and be subject to the same obligations
and duties as are given
to and assumed by Declarant herein, Any such assignment shall be recorded
in the Clerk and
Recorder’s Office of Boulder County, Colorado. Upon any such
assignment, and to the extent
thereof, Declarant shall be relieved from all liabilities, obligations
and duties so assigned and
assumed. The term “Declarant” as used herein includes
all such assignees and their heirs,
successors and assigns. If at any time Declarant ceases to exist and
has not made such an
assignment, a successor Declarant may be appointed by the Owners of
Sixty-Five Percent (65%)
of the Property, on an acreage basis, (other than Property Used in
Common) upon compliance
with the requirements of Paragraph 7.2 of this Article.VII.
ARTICLE VII!
EXTENSION OF PROTECTIVE COVENANTS
TO INCLUDE ADDITIONAL PROPERTY
8. I. Extension of Protective Covenants. Declarant may at any time,
without the
consent of any other Owner, make subject to these Protective Covenants
other properties now or
hereafter owned by Declarant, by executing an instrument in writing
making these Protective
Covenants applicable to such other properties and by recording the
same in the office of the
Clerk and Recorder of Boulder County, Colorado. Upon such recordation:
(1) these Protective
Covenants shall run with the Property already subject hereto and with
such additional property as
if such Protective Covenants had always applied to all of said land
from the date of the initial
recording of these Protective Covenants; and (2) whenever thereafter
in construing this
Declaration reference is made to the “Property”, said
term shall mean and refer to not only the
Property described in Exhibit A hereto, but also such additional properties,
including all Property
Used in Common thereon. Such additional properties may, but need not,
be contiguous to other
properties owned by Declarant and made subject to these Protective
Covenants.
ARTICLE IX
OWNERS ASSOCIATION
9. 1. Formation. At any time after the date hereof, so long
as Declarant has not
theretofore assigned its rights, powers and reservations hereunder
as provided in Paragraph 7.3
hereof, Declarant may, but shall not be obligated to, form a non-profit
Colorado corporation to act
as the Owners Association for the Property. The Owners Association,
if formed, shall have all of
the Owners as the members thereof, and shall be formed for the purpose
of assuming and
performing the duties and obligations of Declarant hereunder excluding
Declarant’s rights under
Article V hereof which shall remain with Declarant) and for the purpose
of providing for: (a) the
maintenance, improvement, and beautification of the Property Used
in Common, (b) the security
of the Property: and (c) the welfare and safety of the occupants,
tenants and Owners of Building
Sites. The Owners Association shall be authorized to hold title to
real property and shall accept
legal title to any Property Used in Common which may be deeded to
it, for the use and benefit of
the members of the Owners Association. The Owners Association shall
either undertake or
demand from those in fact responsible, the maintenance and upkeep
of such Property Used in
Common. The Owners Association shaIl pay, or arrange for payment directly
by its benefited
members, on an equitable basis, for such common utility services as
may be required for street
lighting, water fountains, sprinkler Systems and other uses in connection
with the Property Used
in Common. For these purposes, the Owners Association may assess its
members, provided
that: (a) such assessments shall be allocated among the members, according
to the prorata
share of the square footage of each Owner’s Building Site, as
it bears to the total square footage
of the Property, as determined from official county or other appropriate
governmental entity records,
and (b) such assessment for any Building Site does not exceed in any
one calendar year
one dollar for each $100.00 of assessed value of such property, as
determined for real property
tax purposes by the Boulder County assessor. For all members not assessed
for real property tax
purposes, the valuation for the purposes of this paragraph shall be
made by the Owners
Association on an equivalent basis. Notwithstanding anything set forth
herein to the contrary,
Declarant shall have no obligation to pay any of such assessments
to the Owners Association,
but Declarant shall pay to the Owners Association, on an annual basis,
a sum equal to the
difference between the cost of operating and maintaining the Property
Used in Common,
exclusive of any reserves or contingencies, and the amount of funds
payable by the other Owners
to the Owners Association. This obligation of Declarant to subsidize
the operations of the Owners
Association shall terminate when Declarant relinquishes its right
to appoint the Board of Directors
of the Owners Association, or on December 31, 1990, whichever event
first occurs. Subsequent
to the occurance of either of the aforesaid events, Declarant shall
be obligated as any other
Owner with respect to Building Sites then owned by Declarant to pay
the assessments imposed
by the Owners Association.
9.2. Assessments by the Owners Association. All members shall, within
30 days
after the date on which a notice of assessment from the Owners Association
is mailed or delivered,
remit the amount of such assessment to the Owners Association. Any
assessment not
paid within the aforesaid 30-day period from the date of such notice
shall bear interest after said
30 day period until paid at a per annum rate equal to the then prime
rate charged by the United
Bank of Denver on the date of assessment plus three (3%) percent.
All assessments not paid as
set forth herein, plus accrued interest, shall constitute a lien on
the real property subject thereto,
superior and prior to all other liens and encumbrances except the
lien for general taxes and
special assessments, and the lien of any first mortgage or first deed
of trust of record. To
evidence such lien, the Owners Association shall prepare a written
notice (the “Notice”) setting
forth the amount of such unpaid assessment, the name of the member
being assessed and a
legal description of the property on which the lien is filed. The
Notice shall be signed by an officer
of the Owners Association and mailed to the member in default. Thirty
days subsequent to such
mailing, if the assessment plus interest remains unpaid, an officer
of the Owners Association shall
record the Notice at the Clerk and Recorder’s Office, Boulder
County, Colorado. Any such lien
may be enforced by the foreclosure of the real property, including
Improvements, with respect to
which the assessment has not been paid in like manner as a mortgage
on real property is
foreclosed under the laws of the State of Colorado. In any such foreclosure,
the delinquent
member shall be required to pay the costs, expenses and reasonable
attorneys fees in
connection with the preparation and filing of the Notice as provided
herein and all costs and
reasonable attorneys fees incurred in connection with the foreclosure.
The Owners Association
shall have the power to bid on the real property, including Improvements,
being foreclosed upon.
The Owners Association shall notify any first mortgagee of the real
property, including
Improvements, being foreclosed, if such encumbrancer has furnished
its address in writing to the
Owners Association. Any mortgagee holding a lien on real property,
including Improvements,
being foreclosed upon may, but shall not be required to, pay any unpaid
assessment and upon
such payment, such encumbrancer shall have a lien on the real property,
including
improvements, for the amount paid, of the same rank as the lien of
the Owners Association. The
amount of the assessment assessed against each member shall also be
the personal and
individual debt of the member at the time the assessment is made,
and suit to recover money
judgment (together with reasonable attorneys’ fees and costs
as aforesaid) for unpaid
assessments may be maintainable without foreclosing or waiving tile
lien securing the same.
9. 3. Bylaws. The Owners Association, when formed, shall establish
bylaws for the
conduct of its affairs, which shall include reasonable notice to each
member prior to any meeting.
Decisions of the Owners Association shall be by majority or votes
cast at any meeting, except as
otherwise provided in the articles of incorporation or bylaws of same.
The aggregate number of
votes for all members of the Owners Association shall be one hundred
(100) and shall be divided
among the respective owners in accordance with the percentage which
the square footage of an
Owner’s Building Site is of the total square footage of all
of the Building Sites within the Property.
If a particular Building Site is owned by multiple fee Owners, either
joint!y or in common, only the
total votes attributable to such Building Site shall be allowed to
be exercised by such fee Owners
in such manner as they may determine. The real property records of
Boulder County, Colorado
shall at all times be conclusive as to ownership. Each Owner may assign
his voting rights to his
tenant or tenants upon such terms as they may determine. Notwithstanding
anything to the
contrary contained herein, until Declarant has sold and conveyed 100%
of the Property, as same
may be expanded in accordance with Paragraph 8.1 hereinabove, or December
31, 1990,
whichever first occurs, the members of the Board of Directors or the
Owners Association shall be
appointed by Declarant.
ARTICLE X
MISCELLANEOUS
10.1. Notice and Acceptance. Every person or entity which now or hereafter
owns or
acquires any right, title or interest in or to any portion of the
Property is and shall be conclusively
deemed to have consented to every covenant, condition, reservation
or restriction contained
herein, whether or not any reference to this Declaration is contained
in the instrument by which
such person or entity acquired an interest.
10.2. Severability. All of the conditions, covenants, restrictions
and reservations
contained in this Declaration of Protective Covenants shall be construed
together, but if it shall at
any time be held that any one of said conditions, covenants, restrictions
and reservations, or any
part thereof is invalid, or for any reason becomes unenforceable,
no other condition, covenant,
restriction or reservation or any part thereof shall be thereby affected
or impaired.
10, 3. Owner’s Liability Subsequent to Sale. Upon sale of a
Building Site, the Owner
so selling shall not have any further liability for the obligations
thereon which accrue against the
Building Site sold after the date of the conveyance; provided, however,
that nothing herein shall
be construed so as to relieve an Owner of any Building Site from any
liabilities or obligations
incurred prior to such sale pursuant to this Declaration of Protective
Covenants. Furthermore, any
such sale shall not enlarge or extend the time for commencement of
construction of a building
upon a Building Site nor modify Declarant’s right of repurchase
pursuant to Article V hereof, and
any subsequent Owner shall have only the time remaining, if any, to
comply with such Article V
10.4. Notices. Any notices required or permitted herein shall be in
writing and mailed,
postage prepaid, by registered or certified mail, return receipt requested,
and shall be directed as
follows: if intended for a Building Site Owner (I) to the address
of the Building Site, if improved;
(2) if the Building Site is not improved, to the address set forth
in the purchase contract or
purchase contract application; or (3) if none of the foregoing to
the last known address of the
Owner. If intended for Declarant, to the address previously set forth
herein.
10.5. Limited Liability. Neither the Declarant, the Owners Association,
if formed, their
successors or assigns, nor any director, officer, member, agent or
employee of any of these shall
be liable to any party for any action or failure to act with respect
to any matter concerning these
Protective Covenants.
10.6. Singular and Plural. Words used herein, regardless the number
and gender
specifically used, shall be deemed and construed to include any other
number, singular or plural,
and any other gender, masculine, feminine or neuter, as the context
requires.
10.7. Certificate of Compliance. Upon payment of a reasonable fee
set from time to
time by Declarant, and upon the written request of, or authorization
by, any Owner, Declarant
shall issue within 15 days from receipt of the request a certificate
in recordable form stating
whetheror not the Building Site of such Owner is in known violation
of any of these Protective
Covenants. Said written statement shall be conclusive upon the Declarant
in favor of the persons
who rely thereon in good faith. If Declarant fails to furnish such
statement within 15 days, it shall
be conclusively presumed that the Building Site is in conformance
with these protective
Covenants.
IN WITNESS WHEREOF, M.D.C. Corporation has executed this instrument
as of the day and
year first above written.
M.D.C. CORPORATION
a Colorado Corporation
By: /s/ Larry A. Mizel_______________________
Larry A. Mizel President
ATTEST:
_____/s/ Marshall A. Abrahams_________________
Marshall A. Abrahams Secretary
STATE OF COLORADO )
) SS
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 20th day
of September,
1979, by Larry A. Mizel as President and by Marsahll A. Abrahams as
Secretary of M.D.C.
Corporation, a Colorado Croporation.
WITNESS my hand and official seal.
My commission expires: August 9, 1980.__________________/s/
Patricia M. Wood________________________
Patricia M. Wood
Notary Public
EXHIBIT A
All of COLORADO TECHNOLOGICAL CENTER, FIRST FILING, County of Boulder,
State of
Colorado, EXCEPTING AND EXCLUDING Lot 19, Block 6 thereof.
AMENDMENTS TO DECLARATION
OF
PROTECTIVE COVENANTS
These Amendments to the Protective Covenants as recorded for the Colorado
Technological
Center on October 24, 1979 at Reception No. 367003, Film 1089 in the
records of the Boulder County
Clerk and Recorder's Office are duly adopted by the undersigned Owners
of Property and Declarants
affecting the real property known as:
All of COLORADO TECHNOLOGICAL CENTER, FIRST FILING,
County of Boulder, State of Colorado,
EXCEPTING AND EXCLUDING Lot 19, Block 6 thereof
ARTICLE I, Section 1.6 is hereby amended to read as follows:
1.6 Owners Association shall mean and refer to any Colorado non-profit
corporation
organized by Declarant pursuant to Paragraph 9.1 below.
ARTICLE IV, Section 4.1, is hereby amended to read as follows:
4.1 Approval of Plans. No Improvement shall be commenced, constructed,
placed, erected
or maintained upon any Building Site, nor shall any exterior addition
to or change or alteration thereof be made, unless and until complete
construction plans and specifications therefor, as more fully described
hereafter, shall have first been submitted to and approved in writing
by the appropriate Owners Association and the City of Louisville.
Subject to City approval, the appropriate Owners Association shall
exercise its sole and absolute discretion to see that all Improvements
conform and harmonize with the design standards and guidelines duly
adopted by the Owners Association for the Building Site. Any preexisting
Improvements, including renovations to, or additions to, existing
Improvements on the same site, shall be maintained in compliance with
the design standards and guidelines which were in effect and applicable
to the original construction of the Improvement. All Improvements
shall be in strict accordance with any and all federal, state and
local laws, codes, ordinances, rules and regulations, including, but
not limited to, the Annexation and zoning Agreement for the Property,
the Planned Unit Development Plan for the Property, and any other
applicable zoning, subdivision and building codes.
ARTICLE IV, section 4.2, is hereby amended to read as follows:
4.2 Plans and Specifications. The construction plans and specifications
to be submitted to
appropriate Owners Association by an Owner, at such Owner's expense,
shall include the following, and
shall be required to be submitted in writing over the signature of
the owner or his authorized agent:
a) Architectural plans and specifications, including type of materials,
color, mechanical
systems and structural systems;
b) Site plan showing the location and design of all improvements,
fences, landscaping,
street, signs, roadways, parking areas, number, size and layout of
parking spaces,
loading areas, sidewalks, retaining walls, easements, utilities, driveways
and curb cuts;
c) Traffic and drainage engineering studies;
d) Complete grading and drainage plans, showing all relevant elections,
drainage and
retention areas and point flows;
e) Proposed development schedule;
f) Description of proposed operations or uses, including number of
employees, present
pay scale and needed educational levels;
g) Characteristics of the process of the industrial type, with particular
emphasis on
measures that will be taken to mitigate adverse characteristics such
as water, noise and
air pollution;
h) Anticipated water and sewer needs;
i) Material transportation requirements (rail and/or truck), and
j) Such other information as Declarant or the City of Louisville may
deem pertinent in
the evaluation of the site plan, or may be required by Declarant in
order to perform its
function hereunder.
ARTICLE IV, Section 4.3, is hereby amended to read as follows:
4.3 Procedures. All plans and specifications shall be approved or
disapproved within fifteen
(15) days after the submission of all such pertinent materials. In
the event Declarant fails to approve or
disapprove such plans and specifications within fifteen (15) days
of the submittal thereof, then Owner
shall submit to Declarant a notice of nonaction. In the event Declarant
fails to approve or disapprove
such plans and specifications within ten (10) days after receipt of
a notice of nonaction, then such
approval shall not be required, provided that no improvement which
violates any of the covenants or
restrictions contained hereon shall be erected or be allowed to remain
on any Building Site. The issuance
of a building permit or license, which may be in contravention of
these Protective Covenants, shall not
prevent Declarant from enforcing these provisions.
ARTICLE VII, section 7.3, is hereby amended to read as follows:
7.3 Assignment of Declarant's Rights and Duties All or any part of
the rights, powers and
reservations of Declarant herein contained may be assigned by Declarant,
in whole or in part, to any
person, corporation or association, including, without limitation
the Owners Associations, which will
assume any or all of the duties of Declarant hereunder and upon any
such person, corporation or
associations evidencing its consent in writing to accept such assignment,
said assignee shall, to the
extent of such assignment, assume Declarant's duties hereunder, have
the same rights and powers and
be subject to the same obligations and duties as are given to and
assumed by Declarant herein. Any
such assignment shall be recorded in the Clerk and Recorder's Office
of Boulder County, Colorado. Upon
such assignment, and to the extent thereof, Declarant shall be relieved
from all liabilities, obligations and
duties so assigned and assumed. The term “Declarant” as
used herein includes all such assignees and
their heirs, successors and assigns. If at any time Declarant ceases
to exist and has not made such an
assignment, a successor Declarant may be appointed by the Owners of
sixty-Five Percent (65%) of the
Property, on an acreage basis, (other than Property Used in Common)
upon compliance with the
requirements of Paragraph 7.2 of this Article VII.
ARTICLE IX, Section 9.1, is hereby amended to read as follows:
9.1 Formation. At any time after the date hereof, so long as Declarant
has not theretofore
assigned its rights, powers and reservations hereunder as provided
in Paragraph 7.3 hereof, Declarant
may, but shall not be obligated to, form multiple nonprofit Colorado
corporations to act as the Owners
Associations for the Property based upon geographic areas. The Owners
Association, if formed, shall
have all of the Owners within the designated geographic area as the
members thereof, and shall be
formed for the purpose of assuming and performing the duties and obligations
of Declarant hereunder
(excluding Declarant's rights under Article V hereof which shall remain
with Declarant) and for the
propose of providing for: a) the maintenance, improvement, and beautification
of the Property Used in
Common b) the security of the Property; and c) the welfare and safety
of the occupants, tenants and
Owners of Building Sites. The Owners Associations shall be authorized
to hold title to real property within
its geographic area and shall accept legal title to any Property used
in common which may be deeded to
it, for the use and benefit of the members of that Owners Association.
The Owners Association shall
either undertake or demand from those in fact responsible, the maintenance
and upkeep of such Property
Used in Common. Each Owners Association shall pay, or arrange for
payment directly by its benefited
members, on an equitable basis, for such common utility services as
may be required for street lighting,
water fountains, sprinkler systems and other uses in connection with
the Property Used in Common. For
these purposes, each Owners Association may assess its members, provided
that such assessments
shall be allocated among the members, as determined by the Board of
Directors of each Owners
Association. Declarant shall be obligated as any other Owner with
respect to Building Sites then owned
by Declarant to pay the assessments imposed by the appropriate Owners
Association.
ARTICLE IX, Section 9.2, is hereby amended to read as follows:
9.2 Assessments bv the Owners Associations. All members shall, within
thirty (30) days after
the date on which a notice of assessment from the applicable Owners
Association is mailed or delivered,
remit the amount of such assessment that Owners Association. Any assessment
not paid within the
aforesaid 30-day period from the date of such notice shall bear interest
after said 30-day period until paid
at a per annum rate equal to other then prime rate charged by the
United Bank of Denver on the date of
assessment plus three percent (3%). All assessments not paid as set
forth herein, plus accrued interest,
shall constitute a lien on the real property subject thereto, superior
and prior to all other liens and
encumbrances except the lien for general taxes and special assessments,
and the lien of any first
mortgage or first deed of trust of record. To evidence such lien,
an Owners Association shall prepare a
written notice (the "Notice") setting forth the amount of
such unpaid assessment, the name of the member
being assessed and a legal description of the property on which the
lien is filed. The Notice shall be
signed by an officer of the appropriate Owners Association and mailed
to the member in default. Thirty
(30) days subsequent to such mailing, if the assessment plus interest
remains unpaid, an officer of the
appropriate Owners Association shall record the Notice at the Clerk
and Recorders Office, Boulder
County, Colorado. Any such lien may be enforced by the foreclosure
of the Real Property, including
Improvements, with respect to which the assessment has not been paid
in like manner as a mortgage on
real property is foreclosed under the laws of the State of Colorado.
In any such foreclosure, the
delinquent member shall be required to pay the costs, expenses and
reasonable attorney fees incurred in
connection with the foreclosure. The foreclosing Owners Association
shall have the power to bid on the
real property, including Improvements, being foreclosed upon. The
foreclosing Owners Association shall
notify any first mortgagee of the real property, including Improvements,
being foreclosed, if such
encumbrancer has furnished its address in writing to the Owners Association.
Any mortgagee holding a
lien on real property, including Improvements being foreclosed upon
nay, but shall not be required to, pay
any unpaid assessment and upon such payment, such encumbrancer shall
have a lien on the real
property, including Improvements, for the amount paid, of the same
rank as the lien of the Owners
Association. The amount of the assessment assessed against each member
shall also be the personal
and individual debt of the member at the time the assessment is made,
and suit to recover money
judgment (together with reasonable attorney fees and costs as aforesaid)
for unpaid assessments may be
maintainable without foreclosing or waiving the lien securing the
same.
ARTICLE IX, section 9.3, is hereby amended to read as follows:
9.3 Bylaws. Each Owners Association, when formed, shall establish
bylaws for the conduct
of its affairs, which shall include reasonable notice to each member
prior to any meeting. Decisions for
each Owners Association shall be by majority of votes cast at any
meeting, except as otherwise provided
in the articles of incorporation or bylaws of same. The aggregate
number of votes for all members of the
Owners Association shall be one hundred (100) and shall be divided
among the respective owners in
accordance with the percentage which the square footage of an Owner's
Building Site is of the total
square footage of all of the Building Sites within the designated
area for that Owners Association. If a
particular Building site is owned by multiple fee owners, either jointly
or in common, only the total votes
attributable to such Building Site shall be allowed to be exercised
by such fee Owners in such manner as
they may determine. The real property records of Boulder County, Colorado
shall at all times be
conclusive as to ownership. Each Owner may assign his voting rights
to his tenant or tenants upon such
terms as they may determine. Notwithstanding anything to the contrary
contained herein, until Declarant
has sold and conveyed 100% of the Property, as same may be expanded
in accordance with Paragraph
8.1 hereinabove, or December 31, 1990, whichever first occurs, the
members of the Board of Directors of
the Owners Association shall be appointed by Declarant.
ARTICLE IX, Section 9.4, is hereby amended to read as follows;
9.4 Merger of Owners Associations The multiple Owner Associations
created for the
Property may be merged into a single Owners Association upon the approval
of two-thirds of the Owners
within the Property as represented by the multiple Owners Association.
Upon a merger, the Owners by a
majority vote will approve the assessment structure for the new consolidated
Owners Association.
