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HomeMy WebLinkAbout1.0 Covenants, Conditions & RestrictionsDEC 05 '91 15:43 DATES,HUGHES 5 KHEEEV'ICH 4 • P.5/27 DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR EAST BANK COMMERCIAL CENTER This Declaration of Covenants, Conditions, and Restrictions is made this _ day of November, 1991, by Wayne G. Rudd and John J. Stanford, (hereinafter referred to as `Declarant"). RECITALS A, Declarant is the owner of certain real property located in Garfield County, Colorado, the legal description of which is attached hereto as Exhibit A (the "Property"). B. Declarant intends by this Declaration to impose upon the Property mutually beneficial restrictions under a general plan of improvement for the benefit of all owners of Lots within East Bank Commercial Center. C. Declarant desires to provide a flexible and reasonable procedure for the overall development of the Property and to establish a method for the administration, maintenance, preservation, use, and enjoyment of such Property. DECLARATION A_TION NOW, THEREFORE, Declarant hereby declares that all of the Property and any additional property as may by subsequent amendment be added to and subjected to this Declaration shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions which are for the purpose of protecting the value and desirability of the Property and which shall run with the Property and be binding on all parties having any right, title or interest in the Property. ARTICLE 1 Definitions 1.1 "Association" shall mean and refer to East Bank Commercial Center Owners' Association, Inc., a Colorado nonprofit corporation, its successors and assigns. 1.2 The "Board of Directors" or "Board" shall be the body having its normal meaning under Colorado corporate law. Each member of the Association shall automatically be a member of the Board of Directors upon his or her becoming a member of the Association. 1.3 "Property" shall mean and refer to the real property above described and shall further refer to such additional property as may hereafter be annexed by amendment to this Declaration or which is owned in fee simple by the Association. DEC 05 '91 15:48 OATES, HUGHES « KNE E'. ICH 1 P.5/27 1.4 "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of any Lot which is part of the Property, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. 1.5 "Common Area" shall mean all real and personal property now or hereafter owned by or otherwise coming under the responsibility of the Association for the common use and enjoyment of the Owners including, but not limited to, all common facilities, areas and improvements, designated roads and road improvements, wells, well permits, water, septic systems, sewer systems, storm water retention, drainage and utility easements and improvements. As part of the Common Area, the Declarant shall install separate water meters for each Lot. 1.6 "Lot" shall mean any portion of the Property intended for any type of separate independent ownership for use and occupancy as commercial property and shall in all cases include any building improvements thereon. 1.7 "Common Expenses" shall mean and include the actual and estimated expenses of operating the Association, including any reasonable reserve, all as may be found to be necessary and appropriate by the Board pursuant to this Declaration, the By -Laws, and the Articles of Incorporation. 1.8 "Member" shall mean and refer to a person or entity entitled to membership in the Association, as provided herein. 1.9 " Mortgage" shall include a deed of trust, as well as a mortgage. 1.10 "Mortgagee" shall include a beneficiary or holder of a deed of trust, as well as a mortgagee. 1.11 "Mortgagor" shall include the trustor of a deed of trust, as well as a mortgagor. 1.12 "Person" means a natural person, a corporation, a partnership, trustee, or other legal entity. 1.13 "Assessments". Assessments for common expenses provided for herein shall be used for the purposes of promoting the health, safety, welfare, common benefit, and enjoyment of the owners of the Lots and of maintaining the Common Area, all as may be specifically authorized from time to time by the Board of Directors and as more particularly authorized below. The Assessment shall be levied equally against the owners of Lots for such purposes that are authorized by this Declaration or by the Board of Directors from time to time. 2 DEC 05 '91 15:49 OATES,HUWHES « KNEEEVICH • • P.7/27 1.14 "Declarant" shall include Wayne G. Rudd and John J. Stanford, and their heirs and assigns. ARTICLE 2 Rights mmon 2.1 General. Every Owner shall have a non-exclusive right to the use and enjoyment in and to the Common Area subject to any restrictions or limitations concerning the use thereof herein contained or in any rules or regulations enacted by the Association. Any Owner may delegate his or her right of enjoyment to the members of his or her family, tenants, and social invitees subject to reasonable regulation by the Association and in accordance with procedures it may adopt. 2.2 No Partition. There shall be no physical partition of the Common Area or any part thereof, nor shall any person acquiring any interest in the Property or any part thereof seek any judicial partition. ARTICLE 3 Membership and Voting Rights Every person or entity (including Declarant) who is the record owner of a fee or undivided fee interest in any Lot that is subject to this Declaration shall be deemed a member in the Association. Membership shall be automatic upon the recording of any document transferring a legal or equitable interest in a Lot and shall be appurtenant to and may not be separated from such ownership. The foregoing is not intended to include persons who hold an interest merely as security for the performance of any obligation, and the giving of a security interest shall not terminate the Owner's membership. No Owner, whether one or more persons, shall have more than one membership per Lot owned. In the event of multiple Owners of a Lot, votes and rights of use and enjoyment shall be as provided herein. The rights and privileges of membership, including the right to vote, may be exercised by a Member or the Member's spouse, but in no event shall more than one (1) vote be cast for each Lot. The Declarant shall be entitled to one vote for each Lot that it owns. ARTICLE 4 Ownership and M.ai _ tenance of Common Areas The Association shall own all of the Common Areas, including, but not limited to, all common facilities, areas and improvements, designated roads and road improvements, wells, well permits, water, septic systems, sewer systems, h sbemciarant�shall inage nstall d separatility ewater meterssements aad improvements. As part of the Common Area, 3 27 DEC 05 '91 15:49 OHTES,HUi HES « KHEEE'IICH F. • for each Lot. The Association, shall maintain and keep the Common Area (and any personal property and improvements associated therewith) including all paved areas, all landscaped areas, and any other improvements to or upon the Common Area, such maintenance to be funded as hereinafter provided. This maintenance shall include, but not be limited to, periodic inspection and appropriate treatment of water systems, septic systems, drainage and storm water retention systems, maintenance, repair, and replacement, subject to any insurance then in effect, of all other structures, and improvements situated upon the Common Area (including filling all potholes that may develop in the Common Area roads), all to the end that the safety, appearance and quality of the Common Areas shall permanently endure. The Association shall (by enforcement of rules and regulations that it may from time to time adopt) insure the quality of the exterior appearance and aesthetic compatibility of the improvements within East Bank Com- mercial Center. The Association shall have the power to assess the Owners of Lots East Bank Commercial Center to defray common costs incurred in connection with the maintenance of the Common Area and the power specially to assess Owners whose failure to abide rules and regulations or otherwise properly to maintain the exteriors of any improvements to their Lots results in the Association having to perform such maintenance. All maintenance functions required to be performed by the Association may be contractually delegated to a managing agent, including a property management firm. The obligation herein of the Association to maintain the Common Area shall, as well, include the duty to pay all real and/or personal property taxes that may be assessed against such Property, unless such taxes are separately assessed against the Owners of Lots. ARTICLE 5 Insurance and Casualty Losses 5.1 Insurance. The Association's Board of Directors or its duly authorized agent shall have the authority to and shall obtain insurance for all insurable improvements on the Common Area against loss or damage by fire or other hazards, including extended coverage, vandalism, and malicious mischief. This insurance shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. The Board shall also obtain a public liability policy covering the Common Area, the Association, and its members for all damage or injury caused by the negligence of the Association or any of its members or agents, and, if reasonably available, directors' and officers' liability insurance. The public liability policy shall have at least a One Million Dollar ($1,000,000.00) per person limit, as respects bodily injury, a One Million Dollar ($1,000,000.00) limit per occurrence, and a Two Hundred Fifty Thousand Dollar ($250,000.00) minimum property damage limit. Premiums for all insurance on the Common Area shall be a Common Expense of the Association. The policy may contain a reasonable deductible, and the amount thereof shall be added to the face amount of the policy in determining whether the insurance at least equals the full replacement cost. Cost of insurance coverage obtained for the Common Area shall be included in the General Assessment. 4 DEC 05 '91 15:50 OATES, HLIGHES « KHEZEVICH P.9/27 • 5.2 Disbursement of Proceeds. Proceeds of insurance policies shall be disbursed as follows: (a) If the damage or destruction for which the proceeds are paid is to be repaired or reconstructed, the proceeds, or such portion thereof as may be required for such purpose, shall be disbursed in payment of such repairs or reconstruction, as hereinafter provided. Any proceeds remaining after paying such costs of repairs or reconstruction to the Common Area shall be paid to the affected Owner or Owners and their mortgagee(s), as their interests may appear or shall be retained by and for the benefit of the Association. This is a covenant for the benefit of any Mortgagee of a Lot and may be enforced by such Mortgagee. (b) If it is determined, as provided for in Section 5.3 of this Article, that the damage or destruction to the Common Area for which the proceeds are paid shall not be repaired or reconstructed, such proceeds shall be disbursed in the manner as provided for excess proceeds in Section 5.2(a) hereof. 5.3 Damage and Destruction. (a) Immediately after the damage or destruction by fire or other casualty to all or any part of the Common Area covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the same condition in which it existed prior to the fire or other casualty. (b) Any damage or destruction to the Common Area shall be repaired or reconstructed unless all of the Members of the Association shall decide within sixty (60) days after the casualty not to repair or reconstruct. If for any reason either the amount of the insur- ance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within such period, then the period shall be extended until such information shall be made available; provided, however, that such extension shall not exceed sixty (60) days. No Mortgagee shall have the right to participate in the determination of whether the Common Area damage or destruction shall be repaired or reconstructed. (c) In the event that it should be determined by the Association in the manner described above that the damage or destruction of the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, then and in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Common Area by the Association in a neat and attractive condition. 5.4 Repair and Reconstruction. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to 5 DEC 05 '91 15:51 OHTES,HUGHES & KNEZEVICH P.1D'27 • • defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the Association's Members, levy a special assessment against all Owners in the proportion that the square footage contained within each Lot bears to the total square footage contained within all Lots. Additional Assessments may be made in like manner at anytime during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the cost of repair, such excess shall be deposited to the benefit of the Association. ARTICLE 6 Cc,ndemnation Whenever all or any part of the Common Area shall be taken (or conveyed in lieu of and under threat of condemnation by the Board, acting on its behalf or on the written direction of all Owners of Lots subject to the taking, if any) by any authority having the power of condemnation or eminent domain, each Owner shall be entitled to notice thereof and to participate in the proceedings, incident thereto, unless otherwise prohibited by law. The award made for such taking shall be payable to the Association, as Trustee for all Owners, to be disbursed as follows: If the taking involves a portion of the Common Area on which improvements have been constructed, then, unless within sixty (60) days after such taking all of the voting Members of the Association shall otherwise agree, the Association shall restore or replace such improvements so taken on the remaining land included in the Common Area, to the extent lands are available therefore, in accordance with plans approved by the Board of Directors of the Association. If such improvements are to be repaired or restored, the above provisions in Article 5 hereof regarding the disbursement of funds in respect to casualty damage or destruction which is to be repaired shall apply. If the taking does not involve any improvements on the Common Area, or if there is a decision made not to repair or restore, of if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board of Directors of the Association shall determine, including, as the case may be, ultimate disbursement to the Owners. ARTICLE 7 Ri•h .AR •.ligations .f h- inion 7.1 The Common Area. The Association, subject to the rights of the Owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Area and all improvements thereon (including equipment related thereto), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions hereof. 6 DEC Cis '91 15:51 QATES.HUGHES « KNEEEVICH F.11/27 •411/ 7.2 Personal Pro 6 - . n+ R- . Pro rt f. . mm r n Use. The Association, through action of its Board of Directors, may acquire, hold and dispose of tangible and intangible personal property and real property. 7.3 Rules and Regal i on• . The Association, through its Board of Directors, may make and enforce reasonable rules and regulations governing the use of the Property, which rules and regulations shall be consistent with the rights and duties established by this Declaration. Sanctions may include reasonable monetary fines which shall constitute a lien upon the Owner's Lot and suspension of the right to vote and the right to use the Common Area. In addition, the Board shall have the power to seek relief in any court for violations or to abate unreasonable disturbances. 7.4 Implied Rights. The Association may exercise any right or privilege given to it expressly by this Declaration or the By -Laws, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effectuate any such right or privilege. ARTICLE 8 Assessment 8.1 Creation of General Assessment. There are hereby created Assessments for Common Expenses as may be from time to time specifically authorized by the Board of Directors. General Assessments shall be allocated among all Lots within the Association based on the proportion that the square footage contained within each Lot bears to the total square footage contained within all Lots. All such Common Expense shall be for expenses determined by the Board to be for the benefit of the Association as a whole. Each Owner, by acceptance of his or her deed, is deemed to covenant and agree to pay these Assessments. All such Assessments, together with interest at the highest rate in the circumstances allowable under the laws of Colorado, costs, and reasonable attorneys' fees shall be a charge on the land and shall be a continuing lien upon the Lot against which each Assessment is made. Each such Assessment, together with interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the person who was the owner of such Lot at the time the Assessment arose, and his or her grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance, except no first mortgagee who obtains title to a Lot pursuant to the remedies provided in the mortgage shall be liable for unpaid Assessments which accrued prior to such acquisition of title. Assessments shall be levied and paid on a quarterly basis unless and until the Association shall prescribe otherwise. 7 DEC 05 '91 15:52 UHTEE, HUGHES 5 KHEEEVICH • • P.12/27 8.2 Com utation of Assessment. If the Association incurs ongoing Common Expenses, the Board, or such other individual or firm to whom the Association may delegate the task, shall prepare an annual budget, and the following provisions shall apply: It shall be the duty of the Board, or whomever the task may be delegated to, at least thirty (30) days prior to the meeting at which the budget shall be presented to the membership, to prepare a budget covering the estimated costs of' operating the Association during the coming year. The budget shall include a capital contribution establishing a reserve fund, in accordance with a capital budget separately prepared. The Board shall cause a copy of the budget, and the amount of the Assessments to be levied against each Lot for the following year, to be delivered to each Owner. The budget and the Assessments shall become effective unless disapproved at the meeting by a vote of at least a majority of the total Association membership or otherwise modified by a majority vote. 8,3 Special Assessments. In addition to the Assessments authorized in Section 8.1, the Association may levy a Special Assessment for the purpose of defraying any costs incurred by the Association through its Board pursuant to the provisions of this Declaration, which was not included in the annual budget from which the general Assessment was levied. 8.4 Ljen for Assessments.. All such Assessments shall constitute a lien on each Lot prior and superior to all other liens, except (1) all taxes, bonds, assessments, and other levies which, by law, would be superior thereto, and (2) the lien or charge of any first Mortgage of record (meaning any recorded mortgage or deed of trust with first priority over other mortgages or deeds of trust) made in good faith and for value. The Association, acting on behalf of the owners, shall have the power to bid for the Lot at foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. During the period owned by the Association following foreclosure: (1) no right to vote shall be exercised on its behalf; (2) no Assessment shall be assessed or levied on it; and (3) each other Lot shall be charged, in addition to its usual assessment, its equal rata share of the Assessment that would have been charged such Lot had it not been acquired by the Association as a result of foreclosure. Suit to recover a money judgment for unpaid common expenses, rent and attorneys' fees shall be maintainable without foreclosing or waiving the lien securing the same. 8.5 Capital Budget and Contributio . The Board of Directors, or such other individual or firm to whom the Association may delegate the task, shall annually prepare a capital budget which shall take into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost. The Board shall set the required capital contribution, if any, in an amount sufficient to permit meeting the projected capital needs of the Association, as shown on the capital budget, with respect both to amount and timing by annual Assessments over the period of the budget. The capital contribution required shall be fixed by the Board and included within the budget and Assessment, as provided 8 DEC 05 '91 15.53 OTES, HUGHES 2 KNE EVICH P.13/27 • in Section 8.2. A copy of the capital budget shall be distributed to each Member in the same manner as the operating budget. ARTICLE 9 r hi ectural Standar 9.1 All property which is now or may hereafter be subjected to this Declaration is subject to architectural and environmental review. This review shall be in accordance with this Article and such standards as may be promulgated by the Board. The Board of Directors shall have the authority and standing on behalf of the Association to enforce in courts or competent jurisdictions any violation of the architectural standards promulgated by the Board. Notwithstanding anything in the By -Laws of the Association to the contrary, at any time that the Board is conducting itself in this architectural review or architectural standards setting capacity, the concurring vote of two of the three Board members (excluding the applicant member) shall be required, 9.2 New Construction. The Board shall promulgate Architectural and Environmental Standards and Application Procedures. It shall make these available to owners, builders and developers who seek to engage in development of or construction upon all or any portion of the Property and shall conduct its operations in accordance therewith. No construction shall occur other than within the building envelopes depicted on the Plat. 9.3 Modifications. The Board shall have exclusive jurisdiction over modifications, additions or alterations made on or to any building or landscaping improvements (including fences) from time to time installed on any Lot. The Board skull promulgate detailed standards and procedures governing its area of responsibility and practice in respect of modifications. In addition thereto, the following shall apply: plans and specifications showing the nature, kind, shape, color, size, materials and location of such modifications, additions or alterations shall be submitted to the Board for approval as to quality of workmanship and design and harmony of externaldesign to insure aesthetic and architectural compatibility with existing structures and as to location in relation to surrounding structures, topography and finish grade elevation. Nothing contained herein shall be construed to limit the right of an Owner to remodel the interior of his building or to paint the interior of his building any color desired. In the event the Board fails to approve or to disapprove such plans or to request additional information reasonably required within forty-five (45) days after submission, the plans shall be deemed approved. ARTICLE 10 Use Restrictions 10.1 Commercial Use. The Property shall be used only for commercial, and related purposes as may more particularly be set forth in this Declaration, or any amendments hereto. The Association, acting through the Board of Directors, shall have standing and the power to 9 DEC 05 '91 15: 53 GATES, HUGHES & KHEEEVICH • P.14/27 enforce use restrictions contained in any this Declaration as if such provision were a regulation of the Association. 10.2 Hazardous Mme. Each Owner shall keep or cause his or her Lot and the Common Area free of Hazardous Materials. Without limiting the foregoing, Owner shall not cause or permit his or her Lot or the Common Area to be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce, or process Hazardous Materials, except in compliance with all applicable federal, state, and local laws and regulations, nor shall Owner cause or permit, as a result of any intentional or unintentional act or omission on the part of Owner or any tenant, subtenant, or occupant, a release of Hazardous Materials onto his or her Lot or the Common Area. For purposes of this Declaration, the term "Hazardous Materials" shall mean any gasoline, petroleum products, explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, polychlorinated biphenyls or related or similar materials, asbestos or any material containing asbestos, or any other substance or material as may be defined as a hazardous or toxic substance by any environmental law, ordinance, rule, or regulation of any governmental authority, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (43 U.S.C. Sections 9601, et sea.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et sea,.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et sea.), the Federal Water Pollution Control Act (33 U.S.C. Sections 1251, et secs.), and the Clean Air Act (42 U.S.C. Sections 7401, et seci.), and in the regulations adopted and publications promulgated pursuant thereto, or any other federal, state, or local governmental law, ordinance, rule, or regulation. ARTICLE 11 Mortgagee Provisi n The following provisions apply to the Properties, and none may be amended without the consent of at least two-thirds (2/3) of the first Mortgagees: 11.1 Consent of Lenders Required. Unless two-thirds (2/3) of the institutional holders of first Mortgages on the Lots have given their prior approval, the Association shall not be entitled to: (a) by act or omission seek to abandon, release or encumber any Common Area owned, directly or indirectly, by the Association for the benefit of the Lots; provided, however, the granting of easements for public utilities or for other public purposes consistent with the intended use of such Common Area shall not be deemed a transfer within the meaning of this clause; (b) change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner; 10 DEC 05 '51 15:54 OHTES,HUGHES 5 KNEEE.ICH P.15/27 s (c) by act or omission change, waive or abandon the system of regulations and enforcement established in this Declaration for architectural design or the exterior appearance and maintenance of Lots, and the maintenance of the Common Area in the Property; or (d) use hazard insurance proceeds for losses to any Common Area for other than the repair, replacement or reconstruction of such Common Area. 11.2 Payment of Taxes. First Mortgagees of Lots may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Common Area and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for such Common Area. 11.3 No Priority. No provision of this Declaration gives or shall be construed as giving any Owner or any other party priority over any rights of the first Mortgagee of a Lot pursuant to its Mortgage in the case of a distribution to such owner of insurance proceeds or condemnation awards for losses to or a taking of Common Area. 11.4 Notice to Mortgagee. Notwithstanding anything contained herein which might otherwise be construed to the contrary, a first Mortgagee, upon request designating such Lot, will be entitled to written notification from the Association of any default in the performance by any Owner of a Lot in which such Mortgagee has an interest of any obligation under this Declaration which is not cured within sixty (60) days. 11.5 Management Agreement Limita i n• . Notwithstanding anything contained herein which night otherwise be construed to the contrary, any agreement for professional management of the Common Area, or any other agreement providing for services by others in respect of the functions and responsibility of the Association herein, may not exceed one (1) year and must provide for termination by either party without cause and without payment of a termination fee on thirty (30) days or fewer written notice. ARTICLE 12 figneral Provisions [2.1 Term. The covenants and restrictions of this Declaration shall run with and bind the Property, and shall inure to the benefit of and shall be enforceable by the Association or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns. 12.2 Amendment. This Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of Members representing all of the Members of the Association, together with any required affirmative approval of first Mortgagees as hereinabove provided in Article 11. Any amendment must be recorded among the land records of Garfield 11 DEC 5 '91 15:55 oHTES, HUGHES KNEEE'i ICH 5.16/-f • • County, Colorado. Notwithstanding anything to the contrary, no property may be annexed to East Bank Commercial Center without the approval of all Members of the Association. 12.3 Indemnification. The Association shall indemnify every officer and director against any and all expenses, including counsel fees, reasonably incurred by or imposed upon any officer or director in connection with any action, suit or outer proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer or director. The officers and directors shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct or bad faith. The officers and directors shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association, and the Association shall indemnify and forever hold each such officer and director free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any officer or director, or former officer or director, may be entitled. The Association shall, as a Common Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation. 12.4 Delegation of Use. Any Owner may delegate, in accordance with the By -Laws, Rules and Regulations of the Association, his or her right of enjoyment to the Common Area and facility to the members of his or her family, tenants and social invitees, or, in the case of a partnership, to the members of the partnership, their families, tenants and social invitees. 12,5 Owner's Right to ingress, Egress and Supnog. Each Owner and any customer, client, or other invitee of Owner shall have the right to ingress and egress over, upon and across the Common Area necessary for access to his or her Lot, and such rights shall be appurtenant to and pass with the title to each Lot. 12.6 Easements for Encroachments. There shall be and hereby are granted reciprocal appurtenant easements of encroachment as between each Lot and such portion or portions of the Common Area adjacent thereto to the extent any such easements may be necessary to maintain any improvements to the Common Area at the time hereof existing in their present configuration and proximity. 12.7 Easements for Utilities, Ete. Subject to the limitations below set forth, there is hereby reserved unto the Declarant the power to grant blanket easements across and over and under all of the Property for ingress, egress, installation, replacing, repairing and maintaining master television antenna systems, cable systems, security and similar systems, and all utilities, including, but not limited to, water, sewers, telephones and electricity. Should any entity furnishing a service covered by the general easement herein provided request a specific easement by separate recordable document, the Declarant, for so long as it shall be a Lot Owner, and thereafter the Board of Directors shall have the right to grant such easement on such property without conflicting with the terms hereof. The easements provided for in this Article shall in no way adversely affect any other recorded easement on the Property. Notwithstanding the 12 DEC 05 '91 15:55 O TES,HUGHES & KNE?EVICH P.17/E7 • • foregoing reservation, neither the laying out or establishing of any easement by the Declarant pursuant to this reservation shall impair or interfere with any surface improvements presently constructed on any of the Lots or on the Common Area and in laying out or establishing any such easement or in accessing any utilities that may be located therewithin, the Declarant or, as the case may be, any utility company, shall be required to locate all facilities underground and to restore the surface of any affected Lot to its condition existent prior to the laying out, establishing or accessing of any such easement. 12.8 Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. 12.9 Perpetuities. If any of the covenants, conditions, restrictions or other provisions of this Declaration shall be unlawful, void or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of the longest lived member of the presently constituted Board of County Commissioners of the City of Garfield County, Colorado. IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this day of December, 1991. Wayne G. Rudd John I. Stanford STATE OF COLORADO ) ) ss. COUNTY OF PITKJN ) The foregoing instrument was acknowledged before me this day of December , 1991, by John J. Stanford and Wayne G. Rudd. WITNESS my hand and official seal. My commission expires: (SEAL) Notary Public 13 DEC 05 '91 15:56 CATEE,HLIGHES 8 KHE E••/ICH P.18/27 • ENT OF MORTGAGE The undersigned, being the holder of a mortgage or deed of trust affecting all or any portion of the Property above described hereby (i) consents to the recording of the foregoing Declaration; (ii) agrees to be bound to the terms thereof upon its succession to the fee title to any portion of the Property through foreclosure or proceedings or arrangements in lieu thereof; and (iii) subordinates its interest in any insurance proceeds payable on account of any casualty or other loss under any insurance policy in which it may have an interest to the provisions of Article .5 of the Declaration. 14 DEC 05 '91 15:56 GATES, HUGHES & K'dEZE/ICH P.19/27 • • BY-LAWS OF EAST BANK COMMERCIAL CENTER OWNERS ASSOCIATION, INC. A Colorado Non-profit Corporation ARTICLE I Office and Corporation Sejil L. Principal Office. The principal office of the Association shall be maintained in the County of Garfield, State of Colorado. 2. Other Offices. Such other offices, both within and without the State of Colorado, shall be maintained as from time to time approved by the Board of Directors. 3. Seal. The Association's corporate seal shall have inscribed thereon the name of the corporation and the words "Seal" and "Colorado". Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced. ARTICLE a Members. 1. Class of Members. There shall be one class of Members who shall be the Directors of the Association. . Metnbershi . Any person or entity on acquiring title to a Lot within East Bank Commercial Center shall automatically become a Member of the Association, and Membership shall be mandatory. Membership shall terminate automatically without formal action when the Owner or entity ceases to own a Lot within East Bank Commercial Center. Termination shall neither relieve nor release the former Member from any liability or obligation incurred under or in any way connected with the Association during his, her or its membership, nor shall ter- mination impair any rights or remedies which the Association may have against the former Member arising out of or in any way connected with ownership of a Lot in East Bank Commercial Center, membership in the Association or the Declaration of Covenants, Conditions and Restrictions far East Bank Commercial Center ("Covenants") and obligations incident thereto. DEC 05 '91 15:57 OHTES;, HUGHES KHE7E' "ICH P.20/27 • • ARTICLE III Meetings and Voting 1. place of Meetings. Meetings of Members may be held at such place, either within or without this state, as may be provided by the Board of Directors. In the absence of any such provision, all meetings shall be held at the registered office of the corporation in this state. 2. Annual Meeting. An annual meeting of Members shall be held on the third Thursday of March of each year at 10:00 a.m.; provided, however, that should such day fall upon a iegai holiday, then any such annual meeting of Members shall be held at the same time and place or the next day thereafter which is not a legal holiday. At the annual meeting, directors shall be confirmed, reports of the affairs of the Association shall be considered, and any other business may be transacted which is within the powers of the Members. 'Failure to hold the annual meeting at the designated time shall not work a forfeiture or dissolution of the Association. 3. Special Meetings. Special meetings of the Members may be called by the President, Secretary or by the Board of Directors. Special meetings of the Members may also be called by Members having one-third of the votes entitled to be cast at such meetings. 4. Notice of Members' Meetings. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, the Secretary or the officers or persons calling the meeting, to each Member entitled to vote at that meeting. If mailed, such notice shall be deemed delivered when deposited in the United States mail addressed to the Member at his address as it appears on the records of the corporation, with postage thereon prepaid. 5, Waiver of Notice. When any notice is required to be given to any Member under the provisions of these By -Laws, a waiver thereof in writing signed by the person entitled to that notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. 6. Voting. There shall be one (1) vote allocable to each of the three (3) Lots within East Bank Commercial Center. Voting shall not be fractionalized and in the event a Lot is owned by more than one person or entity, the Owners thereof shall designate one person or entity to cast the vote allocable to the Lot involved. The designation shall be in writing, shall be maintained with the books and records of the Association, and shall be effective until revoked in writing. 7. Proxiesand Voting by Mail-. A Member entitled to vote may vote in person or may vote by proxy executed in writing by the Member or his duly authorized attorney-in-fact. 2 DEC 05 '91 i5:57 C' TES,HUGHES a KNEZE'JICH P.21•27 • • No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. Members may vote by mail for an amendment to the Articles of Incorporation or a proposed plan or merger, consolidation or dissolution, provided, however, that such vote shall require the affirmative vote of all of the votes entitled to be cast on that question. 8. Quorum. Members represented in person or by proxy holding a majority of the votes entitled to be cast on any matter to be voted upon, shall constitute a quorum. Nonetheless, in all matters that shall come before the Association for vote, and unless the Covenants specify a higher vote, the concurring vote of two (2) Members shall be required for passage, adoption or enactment, as the case may be, of or on any matter. ARTICLE IV Directors, Powers and Meetings Number of Directors. The property and business of the corporation shall initially be managed by a Board of two (2) Members, each of whom shall be an Owner (or a principal thereof) of a Lot in East Bank Commercial Center. In the event that Lot 2 is sold by Declarant, the Board of Directors shall be increased to three members. Thereafter, each Lot shall have a representative Member on the Board. In the event a Lot is owned by more than one person or by an entity, the Owners or the entity shall designate an individual to serve on the Board. Each Board Member shall serve until his or her successor has qualified and has been confirmed. 2. Directors Term. A Director's tenure on the Board shall expire automatically and he or she shall be deemed to have resigned upon the cessation of an ownership interest by him or her or by the entity in which he or she is a principal in a Lot in East Bank Commercial Center. 3. Annual Meeting and Notice. A meeting of each newly elected Board of Directors may be held without notice in each year immediately following the annual meeting of Members, and at the same place. No prior notice of such meeting, other than the notice of the Members' meeting, shall be necessary. Attendance of a Director at any meeting shall constitute a waiver of notice of the meeting, except when a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the Board of Directors need be specified in the notice or waiver of such meeting. 4. Quorum. A majority of the number of Directors in office shall constitute a quorum for the transaction of business. Nonetheless, in all matters that shall come before the Board for vote, and unless the Covenants specify a higher vote, the concurring vote of two (2) Members shall be required for passage, adoption or enactment, as the case may be, of or on any matter. 3 DEC 05 '91 15: 53 DATE, HUGHES « Kf•aEZE 5 ISH • 40 5.Committee . The Board of Directors by resolution may designate and appoint one or more committees, each of which shall consist of two or more Directors, which committees shall have all the authority of the Board of Directors, except that no such committee shall have the authority of the Board of Directors in reference to amending, altering or repealing the By - Laws; electing, appointing or removing any member of any such committee or any officer of Director of the Association; amending the Articles of Incorporation; restating the Articles of Incorporation; adopting a plan of merger or adopting a plan of consolidation with another corporation; authorizing the sale, lease, exchange or mortgage of all or substantially all of the property and assets of the Association; authorizing the voluntary dissolution of the Association or revoking proceedings therefor; adopting a plan for the distribution of the assets of the Association; or amending, altering or repealing any resolution of the Board of Directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors or any individual Director of any responsibility imposed upon him by law. 6. Compensation of Directors. Directors, as such, shall not receive any stated salary or compensation for their services; provided, however, that nothing herein contained shall be construed to preclude any Director from serving the Association in any other capacity and receiving compensation therefor. 7. Chairman of the Board. The President of the Association shall act as ex -officio Chairman of the Board of Directors, unless the Board of Directors elect one other of their number to fill the office of Chairman of the Board of Directors. 8. Bank Accounts. Anything hereinabove to the contrary notwithstanding, the Board of Directors may, except as may otherwise be required by law, authorize any officer or officers, agent or agents, in the name of and on behalf of the Association to sign checks, drafts or other orders for the payment of money or notes or other evidences of indebtedness, to endorse for deposit, deposit to the credit of the Association at any bank or trust company or banking institution in which the Association may maintain an account, cash, checks, notes, drafts or other bankable securities or instruments and such authority may be general or confined to specific instances as the Board may elect, but unless so authorized by the Board, no officer, agent or employee shall have power or authority to bind the Association by contract or engagement or to pledge its credit or to render it pecuniarily liable for any purpose or to any amount. 9. Powers and Duties. The Board shall have the powers and duties necessary for the administration of the affairs of the Association, and shall include but shall not be limited to the following, all of which shall be done for and in behalf of the Owners of the Lots: (a) To administer and enforce the Covenants and all other provisions set forth in the By -Laws of the Association, and supplements and amendments thereto. 4 DEC 05 '91 15:59 OHTEE,HLI' HE= KHEEE'.ICH P.2=1/27 (b) To establish, make and enforce compliance with such reasonable rules as may be necessary for the operation and use of East Bank Commercial Center with the right to amend the same from time to time. (c) To incur such costs and expenses as may be necessary to keep in good order, condition and repair the Common Area and all items of common personal property. (d) To insure and keep insured the insurable Common Area in an amount equal to its maximum replacement value. (e) To prepare, according to generally accepted accounting principles, a budget for the Association in order to determine the amount of the assessments payable by the Lot Owners to meet Common Expenses. To allocate and assess such assessments among the Lot Owners in the manner set forth in the Covenants. To cause the Association to provide for, among other things, the following services to be paid for out of the regular assessments (or special assessments, if necessary): the maintenance, repair, operation, additions, alterations and improvements of and to the Common Area, including expenses of management; insurance relative to the Common Area; legal and accounting services relative to the Common Area and the Association; snow removal; and other services deemed necessary by the Board for the proper maintenance of the Common Area and operation of the Association. (f) To record a lien against any Lot in respect of which assessments have been delinquent for thirty (30) days or more, and to collect delinquent assessments and interest thereon by suit or otherwise and to enjoin or seek damages from an Owner as is provided in the Covenants and these By -Laws. (g) To protect and defend in the name of the Association any part or all of the Common Area from loss and damage by suit or otherwise. (h) To borrower funds in order to pay for any expenditure or outlay required pursuant to the authority granted by the provisions of the Covenants and these By -Laws and to execute all such instruments evidencing such indebtedness as the Board may deem necessary, and such indebtedness shall be the several obligation of all the Lot Owners. (i) To enter into contracts within the scope of their duties and powers. (j) To establish a bank account for the common treasury and for all separate funds which are required or may be deemed advisable by the Board. (k) To keep and maintain full and accurate books and records showing all of the receipts, expenses or disbursements and to permit examination thereof by Lot Owners or their mortgagees at convenient weekday business hours. 5 DEC 05 '91 15:59 OATES, HUGHES % KNEZE'5'ICH P. 24%'27 • • (1) To prepare and deliver annually to each Member a statement showing all receipts, expenses or disbursements since the last such statement. (m) To maintain the Common Area; to make or cause to be made repairs, replacements, additions, alterations and improvements to the Common Area consistent with management thereof in a first-class manner and consistent with the best interests of the Lot Owners. (n) In general, to carry on the administration of this Association and to do all of those things necessary and reasonable in order to carry out the governing and the operation of East Bank Commercial Center. (o) To employ for the Association a Managing, Agent who shall have and exercise all of those powers granted to it by the Board, but not those powers which the Board, by law, may not delegate. ARTICLE V Officers and Agents 1. Officers. The officers of the Association shall be a President, one or more Vice - Presidents, a Secretary and a Treasurer, and such other officers as the Board of Directors shall deem proper. The same person may hold any two, but not more than two, offices, except that the offices of President and Secretary may not be held by the same person. 2. Election. The Board of Directors, at its first meeting after each annual meeting of Members, shall choose the officers and may, not inconsistent with the By -Laws, fix the powers and duties of any officer. Each officer so chosen shall hold office for one (1) year or until his successor shall be chosen and shall qualify, unless he shall sooner resign or be removed as herein in these By -Laws provided. 3. Removal of Officers. Any officer elected or appointed may be removed by the Board of Directors when in their judgment the best interests of the Association will be served thereby. The removal of an officer shall be without prejudice to the contract rights, if any, of the officer so removed. Election or appointment of an officer or agent shall not of itself create contract rights. 4. Agents. The Board may appoint such agents as it shall deem necessary, who shalt act as such for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. 5. Salaries. The salaries, if any, of the President, each Vice -President, the Secretary and the Treasurer shall be fixed by the Board of Directors. The salaries and wages of all other 6 DEC 05 '91 16:00 OHTEE, HUGHES & KNEZE./IC.H P.2',/27 4111 officers, agents and employees of the Association shall be fixed in regular course by the active management of the company, subject to approval of the Board of Directors. 6. Vacancies. If the office of any officer becomes vacant for any reason, the vacancy shall be filled by the Board of Directors. 7. The President. The President shall be the chief executive officer of the Association; he shall preside at any meetings of the Members at which he is present and, in the absence of the Chairman of the Board, shall preside at any meeting of the Board of Directors at which he is present; and he shall be an ex -officio Member of all standing committees. He shall have general and active management of the business of the Association and shall see that all orders and resolutions of the Board are carried into effect. 8. Vice -President. The Vice -President shall, in the absence or disability of the President, perform the duties and exercise the powers of the President and shall perform other such duties as the Board of Directors shall prescribe. 9. The_Secretarv. The Secretary shall attend all sessions of the Board and all meetings of the Members and record all votes and minutes of all proceedings in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the Members and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall operate. He shall keep in safe custody the seal of the Association and, when authorized by the Board, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the Treasurer or an Assistant Secretary. 10. The Treasurer. The Treasurer shall have the custody of the Association funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Association and shall deposit all monies and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Association as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and Directors, at the regular meetings of the Board, or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the Association. If required by the Board of Directors, the Treasurer shall give the Association a bond in such sum and with such surety or sureties as shall be satisfactory to the Board for the faithful performance of the duties of his office and for the restoration or removal from office, all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 7 DEC n5 '91 16:00 OHTES, HUGHES : KNEZEVICH P.26/27 • • 11. Assistant Treasurer. The Assistant Treasurer, if any, shall be chosen by the Board of Directors, shall in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties as the Board of Directors shall prescribe_ ARTTCLE VI Miscellaneous 1. Accounting Period. The Association shall keep its books and file its tax returns on a business year as determined by the Board of Directors. 2. Books and Records. The Association shall keep correct and complete books and records of account; shall keep minutes of the proceedings of its Members, Board of Directors and committees having any of the authority of the Board of Directors; and shall keep, at its registered office or principal office in this state, a record of the names and addresses of its Members entitled to vote. All books and records of a corporation may be inspected by any Member or his agent or attorney for any proper purpose at any reasonable time. 3. Dividend Prohibited. No dividend shall be paid and no part of the income or profit of this Association shall be distributed to the Association's Members, Directors or officers, The Association may pay compensation in a reasonable amount to its Members, Directors or officers for services rendered, may confer benefits upon its Members in conformity with its purposes and, upon dissolution or final liquidation, may make distributions to its Members as permitted by Colorado law, and no such payments, benefit or distribution shall be deemed to be a dividend or a distribution of income or profit. 4. Loans to Directors and Officers Prohibited. No loans shall be made by the Association to its Directors or officers. Any Director or officer who assents to or participates in the making of any such loan shall be liable to the Association for the amount of such loan until the repayment thereof. 5. Action by Members or Directors Without v_legtinz. Any action required to be taken at a meeting of the Members or Directors of the Association or any action which may be taken at a meeting of the Members or Directors may be taken without a meeting if a consent in writing setting forth the action so taken is signed by all of the Members or of the Directors entitled to vote with respect to the subject matter thereof, as the case may be. This consent shall have the same force and effect as a unanimous vote and may be stated as such in any articles or document filed with the Secretary of State. DEC 05 "91 15: 01 OHTES, HUGHES F{NEEEVICH P.27/27 • • 6. Liability of Directors Officers, Employees and Members. The Directors, officers, employees and Members of the Association shall not, as such, be liable on any of the obligations of the corporation. 7. Amendments. These By -Laws may be amended, altered or repealed from time to time by due action of the Board of Directors or by the due affirmative vote of a majority of the Members at any annual meeting of the Members or at any special meeting of the Members if notice of the proposed amendment, alteration or repeal is contained in the notice of such special meeting. 8. Inconsistency with Covenants. In the event of any inconsistency between these By -Laws and the Covenants, the provisions of the Covenants shall be deemed to control in all respects, including, but not limited to, those provisions relating to the role and authority of the Declarant therein. We, the undersigned, being the Directors of East Bank Commercial Center Homeowners Association, Inc., do hereby certify that we have, pursuant to the authority contained in the Articles of Incorporation thereof, adopted the foregoing By -Laws as and for the By -Laws of the Association. Dated: November , 1991. Wayne 0. Rudd John J. Stanford 9