DECLARATION OF RESTRICTIONS,
COVENANTS AND CONDITIONS
AND CHARGES, ASSESSMENTS
AND LIENS
OF DECATUR NORTHWEST
This
Declaration is made the ____ day of ____ , by Orcatur Associates,
a Washington general partnership (“Grantor”), as owner of a unique property which
is known as Decatur Northwest (herein referred to as “Decatur Northwest” or the
“Property”), encompassing approximately 485 acres and 2-1/4miles of waterfront on
the northwest side of Decatur Island in the San Juan Archipelago of the State of
Washington.
The Property is uncommonly beautiful, even
for the San Juan Islands, with dramatic changes in topography and vegetation, a
fresh water lake, beautiful beaches, plentiful fish life, abundant and varied wildlife,
and historic structures, all in an unspoiled environment. Preservation of these
qualities is an important objective of this development. For this reason, the Property
is being developed at a relatively low density; over 95 percent of the Property
will be held for the common benefit of the Owners, and restrictions on the use of
the Property are intended to minimize the degradation of the environment.
All who become Owners subject to this Declaration
must recognize the character of the natural environment in which the Property is
located and accept the principle that the development and use of the Property must
preserve that character for present and future enjoyment of all the Owners. Those
who are entrusted with the administration of the Property must discharge their trust
in full recognition of that principle and, to the extent consistent with that principle,
foster maximum flexibility and freedom of individual expression.
The
Grantor owns approximately 115 acres of undeveloped property immediately adjacent
to Decatur Northwest (herein referred to as the “Reserve Parcel”). The Grantor reserves
the right to add the Reserve Parcel to the Decatur Northwest development as set
forth later in this document, subjecting it to the restrictions, covenants, and
conditions and charges, assessments and liens contained in this Declaration. If
the Reserve Parcel is added to Decatur Northwest, it may be subdivided into no more
than twelve buildable parcels. If the Grantor (or his assignees) develops the Reserve
Parcel separately from Decatur Northwest but utilizes the common water and fire
control system of Decatur Northwest, then the maximum number of parcels into which
it may be subdivided is twenty-one. These reservations of rights are described in
Article VI of this document.
It is the intention of the Grantor that
this Declaration and all other supplemental declarations will be understood and
construed in recognition of the foregoing.
THE GRANTOR HEREBY DECLARES that all the
Property shall be held, sold, and conveyed subject to the following easements, restrictions,
covenants, and conditions and charges, assessments, and liens, which are imposed
for the purpose of protecting the value and desirability of the Property and which
shall run with the Property and be binding upon and inure to the benefit of all
parties having any right, title, or interest in the Property or any portion of the
Property, their heirs, successors, and assignees.
ARTICLE I: DEFINITIONS
Section 1.01: ARTICLES means the Articles of Incorporation of Decatur Northwest Community
Association filed with the Secretary of State, establishing the Association as a
nonprofit corporation.
Section 1.02: ASSOCIATION means the Decatur Northwest Community Association, its successors
and assigns.
Section 1.03: BYLAWS means the Bylaws adopted by Decatur Northwest Community Association.
Section 1.04: COMMON AREA means all the
real property, including easements, owned by the Association for the common use
and enjoyment of the Owners. The Common Area includes all real property contained
within the boundaries of the Plat exclusive of the Parcels.
Section 1.05: COMMON
PROPERTY is an inclusive term referring to all the
real and personal property owned by the Association.
Section 1.06: COMMUNITY
SEWERAGE SYSTEM means the community drainfields which serve
three or more Parcels and the sewer lines connecting the sewerage facilities of
the Parcels to the community drainfields.
Section 1.07: DECATUR
NORTHWEST means the real property described in the
Decatur Northwest Plat, recorded in Volume____, page____ of Plats, San Juan
County, State of Washington, also described by the legal description in attachment
A to this document and sometimes referred to herein as the “Property.”
Section 1.08: DECLARATION means the contents of this entire document and amendments.
Section 1.09: DESIGN
COMMITTEE means the committee provided for in Article
V of this Declaration.
Section 1.10: FIRE
CONTROL SYSTEM means the water system, the fire standpipes
and hydrants, and the fire-fighting equipment of the Association.
Section 1.11: GRANTOR means Orcatur Associates, a Washington
general partnership, its successors and assignees.
Section 1.12: OWNER means the recorded owner, whether one or more persons or entities,
of fee simple title to any Parcel, including Grantor and contract purchasers, but
excluding any party holding an interest in the property as security for the performance
of an obligation.
Section 1.13: PARCEL means each numbered lot shown upon the Plat recorded as described
above.
Section 1.14: PERMANENT
RESIDENT means an Owner who has a home on his/her
Parcel and who makes this home his/her principal residence. To qualify as a principal
residence, it must be the Owner's legal address and usually occupied by him/her
at least 250 days per year.
Section 1.15: PLAT is the recorded document setting forth the location of all Parcels,
easements, and common property of Decatur Northwest, and San Juan County restrictions
on the development of the Property.
Section 1.16: RESERVE
PARCEL means the real property of approximately
115 acres in size owned by the Grantor, located north/northeast of the Property
and more fully described by the legal description in Attachment B to this document.
Section 1.17: ROADS means the private roads shown on the Plat which provide access
to the driveways of the Parcels, Common Area, community facilities, and the rest
of Decatur Island.
Section 1.18: RULES means the Decatur Northwest Community Association Rules adopted
in accordance with this Declaration and the Bylaws of the Association.
Section 1.19: SEWERAGE
MANAGEMENT CONTRACT is an agreement
between the Grantor, the Association, and San Juan Title Company and approved by
the State of Washington, whereby the Association assumes the responsibility for
the management and maintenance of the Community Sewerage System.
Section 1.20: WATER
SYSTEM means the wells, well pumps and piping
that supply the water for the Property, the water storage tanks, and the distribution
lines that bring the water to the connection point for each Parcel.
ARTICLE II: PROPERTY RIGHTS
Section
2.0: Uses of Parcels. Each Parcel
may be used for residential purposes only, and only one single-family dwelling and
such outbuildings as may reasonably be necessary to such single-family residential
purposes may be constructed, subject to the following provisions:
(a) The Association shall have the right, without any liability
to the Owner, to enter any Parcel for the purposes of maintaining or protecting
any and all Common Areas or facilities and enforcing the provisions contained in
this Declaration or the Rules of the Association.
(b) The Association shall have the right to enter any Parcel
that is connected to the Community Sewerage System to inspect all sewerage facilities,
to assure their proper operation, and to carry out any repair, maintenance, or improvement
to the sewerage facilities that the Association may determine is necessary.
(c) Each Parcel and any and all improvements thereon shall be
maintained by the Owner in good condition and repair and in a manner which will
not create a fire hazard, become a nuisance, or cause unreasonable disturbance or
annoyance to other Owners.
(d) Notwithstanding any other rights of Owners, the Association
may maintain the grounds, walkways, and exteriors of improvements of Parcels SC-1,
2, 3, 9, 10, and 11. These Parcels are all
quite prominent within Sylvan Cove, the entry to the Property, making it important
that these Parcels and their improvements be of particularly high standards at all
times. The Association shall give 60 days' notice to these Owners of any repair,
maintenance or improvements required on the grounds or exteriors of the improvements.
If any required action is not completed within the 60-day period or such other time
beyond the 60 days as the Association may specify, the Association may do the repair,
maintenance, or improvement and charge the costs thereof to the Owner(s) of the
Parcel(s). This charge will be a special assessment as set forth in Article IV,
Section 4.07, and shall be due and payable immediately. Failure to make the payment
will be considered a default in an assessment and subject to the provisions of Article
IV, Section 4.09.
(e) No temporary shelter or facility is permitted on a Parcel
except those necessary for the construction of any permitted work or improvement
and a tent and tent platform which may be used as an occasional residence for up
to five years from the date of the closing of the sale for the Parcel on which the
tent or tent platform is located, together with any sanitation facilities required
and approved by the Design Committee.
(f) No house trailer, travel trailer, camper, or similar facility
may be maintained on a Parcel.
Section 2.01: Exceptions to Use Restrictions. Certain Parcels, due to their location, size, or role in the
development, are permitted a wider range of uses, as follows:
(a) Parcel SC-11 and 12 has been designated in the Plat for two
single-family residences, and therefore two single-family residences, either detached
or attached, may be built on this Parcel.
(b) Parcels SC-6, 7, & 8, and HRS-6, 7, & 8 are designated
in the Plat for three single-family residences each. Therefore, three single-family
residences, either detached or attached, may be built on each of these two Parcels.
(c) Parcel SC-1 may be used either for a single-family
residence or for the following commercial uses: lodging, restaurant, bar, seminars,
and conferences, subject to County approval.
(d) Parcel SR-I may be used for agricultural purposes in addition
to residential use, including the keeping, breeding, and raising of animals and
the planting, raising, harvesting, and storage of crops. Necessary outbuildings,
barns, fences, equipment, and materials may be kept for these agricultural purposes.
A guest house may also be constructed on the parcel.
The existing barn on Parcel SR-1 shall be maintained by the Owner
of this Parcel in a usable condition for the keeping of animals, providing that
there is no obligation to do a major rebuilding of the barn due to the effects of
aging that could not reasonably be prevented with ordinary maintenance or damage
from fire or other catastrophe. The Owner has the first priority for use of the
barn. However, to the extent that the Owner is not fully utilizing the barn, other
Owners or the Association may request, and the Owner of Parcel SR-l is authorized
to permit, the use by other Owners of portions of the barn for the keeping of horses
and other animals under reasonable rules and regulations set by the Owner of Parcel
SR-I in his sole discretion. These rules may include, but are not limited to, restrictions
on the kind and number of animals to be kept, cleaning of the barn, storage of feed
or other materials, fees or charges to offset costs of management, maintenance,
and repair, and other concerns relating to the management and care of the facility.
The barn may not be converted to a nonagricultural use without the prior approval
of the Board of the Association.
(e) A Parcel of the Grantor's choice may be used for a sales
office to market and sell the unsold or repossessed Parcels in Decatur Northwest.
Section
2.02: Construction and Alteration of Improvements, Excavations and Grading. The right of an Owner to make any improvement on any Parcel,
or to make any change in the existing topography, shall be subject to the terms
of this Declaration and specifically to the following:
(a) All County requirements for building permits, sewage permits
and any other applicable county regulations.
(b) Any construction, reconstruction, refinishing, or alteration
of any part of the exterior of any improvement, or any change in the existing topography,
or the removal or major pruning of trees with a diameter of two inches or more at
breast height outside the Parcels is prohibited until approved by the Design Committee.
(c) Vegetation removal on and around the Parcels shall be minimized.
To the extent necessary to protect the stability of slopes, stumps and roots of
any trees removed shall be retained and underbrush shall be undisturbed. To ensure
maintenance of adequate screening of structures from the shoreline and between Parcels,
thinning and liming for views shall be undertaken only upon approval or pursuant
to regulations of the Association.
(d) Foundation and grading plans for individual residential units
located within 200 feet of the shoreline shall be reviewed by qualified geological
consultants to evaluate possible effects on slope stability and drainage prior to
building permit approval. Written indication of acceptance by the geologist shall
be provided to the San Juan County Planning Department or its successor agency with
the building plans.
(e) All excavation shall be monitored by the caretaker who is
to have received training in identifying archaeological sites. If a significant
archaeological site is exposed, further excavation or disturbance shall be halted
immediately and for a period of fourteen days after notification thereof is received
by the state Office of Archaeological and Historic Preservation or its successor
agency so that it may make a determination as to whether or not any steps are to
be taken to remove the artifacts.
(f) Each residence shall be required to have an exterior waste
facility for the separation of garbage for recycling, composting, and waste removal.
The facility shall be constructed to standards prescribed by the Design Committee.
(g) Each residence shall be required to have an Owner provided
fire standpipe, fire hose reel and hose contained in a cabinet located within 150
feet of all exterior points of the residence. One fire cabinet may serve two residences
if it still meets the 150-foot distance requirement. The required standards for
the fire equipment and installation are set forth on pages 12/17 and 13/17 of the
water and sewer plans recorded with the San Juan County Auditor, and conformance
therewith will be the responsibility of the Design Committee.
(h) The Owner shall submit to the Design Committee plans and
specifications for any proposed work, including: a plot plan, grading plans, floor
plans, drawings showing all elevations; description of exterior materials and colors,
with samples if requested; locations of sewerage facilities, transformer, fire standpipe
and cabinet, and waste management facility; any plans for tree removal or major
pruning of trees; a proposed construction schedule; and any other information requested
by the Design Committee.
(i) The Design Committee may require that the submission of plans
and specifications be accompanied by a reasonable inspection fee.
(j) The Design Committee shall approve the plans submitted if
the Owner has complied substantially with the provisions of paragraph (f) above,
and if the plans and specifications conform to this Declaration and to the Design
Committee rules. All approvals shall be in writing and may be conditioned upon the
submission by the Owner of final plans and specifications in accordance with the
approved plans. Plans, drawings, and specifications which are not approved or rejected
within 45 days from the date of submission to the Design Committee shall be deemed
approved.
(k) If the Design Committee determines that the proposed work
does not satisfy the requirements of this Declaration, the Design Committee shall
notify the Owner in writing, specifying the reasons for disapproval.
(l) Any Owner may at any time, without first obtaining the approval
of the Design Committee, refinish or otherwise alter the interior of any existing
structure.
(m) Upon receipt of approval from the Design Committee, the Owner
shall commence work in accordance with approved plans within one year from the date
of approval, except that upon written request to the Design Committee and upon a
finding by the Design Committee that there has been no change in the Owner's approved
plans, applicable design rules, or the physical environment around the Parcel, the
time for commencement shall be extended in writing by the Design Committee.
(n) The Owner shall complete the exterior of any improvement,
hook up to the water supply, provide the fire cabinet, install and hook up all necessary
sewerage facilities, and provide an approved waste management facility within one
year after commencing construction, unless completion is rendered impossible or
would result in undue hardship to the Owner due to causes beyond the reasonable
control of the Owner.
(o) Upon completion of work for which approved plans are required
under this section, the Owner shall give notice to the Design Committee. Within
60 days the Design Committee may inspect the work to determine whether the layout,
exterior, and elevation are in substantial compliance with approved plans. The Design
Committee shall notify the Owner of any noncompliance within such 60 days and shall
require the Owner to remedy such noncompliance. If the Design Committee fails to
notify the Owner of any noncompliance within the 60-day period, the improvements
shall be deemed to be in accordance with the approved plans.
Section
2.03: Shared Utility Facilities.
The utility services for the Property were designed to minimize the costs to Owners
by making it possible to share some utilities. These include, but are not limited
to, transformers, sewerage holding tanks, pumps and piping, and fire cabinets. The
schedule set forth in Attachment C to this document lists those known facilities
which shall be shared by Parcels as shown therein.
(a) When an Owner submits plans to the Design Committee for a
Parcel which is listed as having a shared facility, the submission shall include
a letter from the other Parcel Owner sharing or to share the facility (referred
to as the “Cooperating Owner”) stating agreement or disagreement with the proposed
location of the shared facility(ies). If a letter has not been obtained from the
Cooperating Owner, or if there is a disagreement between the two Owners as to the
location, size, cost, or other feature of the common facility(ies), the Design Committee
shall determine all questions related to the facility(ies), and its decision shall
be final and binding on all parties.
(b) The costs of designing and installing the shared utility
facility(ies) shall be divided between the sharing Owners as follows:
(i) Where two Parcels are involved, the Owner initiating the
submission to the Design Committee shall pay 60% and the Cooperating Owner shall
pay 40%.
(ii) Where three Parcels are involved, the Owner initiating the
submission to the Design Committee shall pay 40% and each of the two Cooperating
Owners shall pay 30%.
(iii) If the Grantor owns the Parcel(s) that would share a common
facility, the Grantor shall pay as would a Cooperating Owner(s) The Association
shall pay the share or shares of the Cooperating Owner or Owners and assess that
cost to them on the next monthly assessment. The assessment shall be due and payable
immediately, and the provisions of Section 4.09 on effect of nonpayment shall apply.
Section
2.04: Special
Construction Limitations.
Certain sites have special siting, height, or sewerage restrictions due to their
location. These restrictions are as follows:
(a) Parcel P-5. All building construction is limited in
height to 10 feet above the highest point on the road due north of the western edge
of the Parcel. All building construction must also be held back 10 feet from the
southern edge of the Parcel.
(b) Parcel P-7. All building construction is limited in
height to 10 feet above the highest point on the road due north of the western edge
of the Parcel.
(c) Parcel P-9. All building construction is limited in
height to 10 feet above the highest point on the road due north of the center of
the Parcel.
(d) Parcel P-14. No tree removal or construction activity
may occur on this Parcel between January 1 and July 15 of any year, due to its proximity
to the eagle's nest.
(e) Parcels HRS-4, HRS-6, 7 & 8, HR-7, and SC-12 and 13.
The on-site sewerage systems for these Parcels shall comply with any special engineering
requirements of the San Juan County Sanitarian and with any shoreline permit requirements.
(f) Parcels SC-2, 3, 5, 9 & 10, Parcels SC-6, 7 &
8, HR1, WR2-6, all P Parcels, all L Parcels, all EC Parcels and all SB Parcels.
All toilets installed in any structure on these Parcels shall be of a type that
uses a maximum of 3 quarts of water per flush of the toilet. No garbage grinders
or disposals that would introduce meat or vegetable products into the sewerage system
may be installed in any residence on these Parcels.
Section
2.05: Limitations on Water Use.
The Association may limit the use of water from the community water system for all
purposes, except fire control, to 450 gallons per day for each residence or less
if necessary to equalize available water for those currently in residence at any
particular time. To determine the amount of water consumption, the Association may
require the installation of water meters, approved by the Association, at each Owner's
expense. Exceptions to these possible controls are as follows:
(a) Parcel SC-I, due to its permitted commercial use,
may not be limited to less than 1,800 gallons per day from the community water
system.
(b) Parcel SR-l, due to its permitted agricultural use,
may not be limited to less than 1,400 gallons per day from the community water
system. Also Parcel SR-l has the right to continued use of the spring located east
of this Parcel, which has been its historical source of water; the spring and piping
may be maintained, improved, or enlarged, and a storage tank or tanks may be added
at the spring to provide an adequate supply of water for the permitted agricultural
use.
ARTICLE III: COMMON PROPERTY
Section
3.0: Common Area Uses and Restrictions.
The use of the Common Area is reserved equally to all Owners and guests. The Common
Area shall be maintained in its existing natural state, subject to the other provisions
of this Declaration. County requirements for use or construction related permits
must be met before a commercial use may be undertaken or a building constructed.
Section
3.01: Roads and Utilities.
The Common Area may be used for such roads and utility systems as the Grantor or
Association may deem appropriate to serve the Owners' needs. The Common Area is
also subject to the public and private utility easements granted, conveyed, or reserved
by the Grantor or the Association.
Section
3.02: Owners' Driveways and Utilities.
Owners may use the Common Area for driveways and walkways from the roads to their
Parcels and for the location of transformers, pedestals for cable TV and telephone,
fire standpipes and cabinets, septic tanks, holding tanks and pumps for waste water,
drainfields, and connections to the water and waste water systems of the Association,
and for such other uses as are approved in advance by the Association. The plans
for these facilities shall be submitted to the Design Committee prior to their installation
and shall be reviewed and approved or disapproved by the Design Committee through
the same process as other proposed work.
Section
3.03: Community Facilities.
The Common Area may be used for the location of community facilities approved and
authorized by the Association, or by the Grantor prior to the time the Association's
Board of Directors is elected by the members thereof, including the following and
others determined to be appropriate:
(a) A house(s), office(s), and related outbuildings furnished
for the caretaker or other employees and agents of the Association or any common
enterprise or cooperative operated by the Association.
(b) Shops, equipment storage buildings, fuel storage areas, wood
storage facilities, parking areas, and boat storage areas.
(c) Recreational facilities, including but not limited to tennis
courts, picnic facilities, and swimming facilities, provided, however, that if a
swimming facility is developed by the Association or the Grantor, it shall be made
available to other Decatur Island residents by prior contact with and permission
of the caretaker or such other person as the Association may designate subject to
such rules as the Association may adopt in regard to such availability.
(d) Agricultural or aquicultural facilities reasonable for carrying
out any such enterprises by the Association or the Grantor.
Section
3.04: Moorage and Docking Facilities.
The Grantor or the Association may locate a community dock, floats, breakwater,
and buoys in Sylvan Cove and buoys in Brigantine Bay for the purpose of providing
moorage of boats owned by the Association or the Grantor and the loading and unloading
and temporary moorage of Owners' and Owners' guests' boats, and may establish rules
for the use of these facilities. Private mooring buoys shall not be permitted in
either of these areas and permanent moorage of Owners' boats shall not be permitted,
except that the Association may permit Owners who are Permanent Residents to moor
one boat for each single-family residence at a community buoy and all Owners to
moor on a permanent basis skiffs or small runabouts, although fees and charges may
be imposed for such moorages.
Section
3.05: Construction Activity of Owners.
During the construction of an Owner’s residence, materials and equipment necessary
for the construction of the residence and appurtenant facilities may be stored in
the Common Area, subject to the approval of the Design Committee as to the location
and conditions of storage of the materials and equipment and cleanup and restoration
of the area used.
Section
3.06: Construction Activity by the Grantor and His Successors and Assignees. The Grantor may use up to five acres, of the Grantor's choice,
in the vicinity of the Association's main water storage tank (location of which
is established as of the date of this Declaration) for a building construction staging
area and for the storage of building materials, a sawmill, a planer building, equipment,
and related items. The building construction facility shall be used only for the
construction of community facilities and residences within the Property and the
Reserve Parcel. At the conclusion of the Grantor's use of the building construction
staging area, the Grantor shall restore the area to a condition acceptable to the
Association. Notwithstanding any other provision of this Declaration in the construction
of community facilities, the Grantor, its successors, assignees, and subcontractors
may use the equipment and shop of the Association, reimbursing the Association for
the energy used and/or for any damage to equipment or tools, but not being required
to pay any other fees or charges.
Section
3.07: Logging of the Common Area.
The Association may enter into contracts to permit the logging of the Common Area
in a selective manner consistent with the principles underlying this Declaration,
in order to supply lumber or logs for the construction of community facilities or
residences on the Property. However, within 200 feet of the shoreline, no timber
is to be removed for construction or firewood purposes except fallen or dead wood.
Logging of the Property for the sale or use of logs or lumber off the Property shall
not be permitted until the year 2002, at which point the Association may enter into
a contract for logging in the form of selective thinning of the trees, provided
that the San Juan County government is given the opportunity to review any Class
II, III, or IV Forest Practice Permit application for such logging.
Section
3.08: Grantor's Aquiculture Activities in Common Areas. The Grantor reserves the right to carry out the breeding, raising,
and harvesting of fish and shellfish for purposes of supplying any restaurant possible
on site SC-l, for research and educational purposes, and for limited-scale commercial
sale of the harvest. The locations of these activities are limited to the fresh
water lake, the drainage of the lake to Sylvan Cove, and the beach and tidelands
of Sylvan Cove and Brigantine Bay. In carrying out these activities, the Grantor
shall:
(a) Forty-five (45) days prior to undertaking any new activity,
submit a plan for that activity to the Board of Directors of the Association for
review and comment;
(b) Avoid any significant restrictions of navigation or the utilization
of dock and moorage facilities;
(c) Avoid any significant conflict with existing or planned recreational
uses of the Sylvan Cove and Brigantine Bay beaches and the lake;
(d) Design any facilities so they reasonably blend with their
immediate environment and so that the need for related shore-side facilities is
minimal.
Section
3.09: Licensed Use of Common Area.
The Association may provide a license to an Owner (or Owners) for the Owner's (or
Owners') personal use of a portion of the Common Area for agricultural or recreational
uses. The use may include the fencing of an area, improving the Property, and building
structures and facilities for the licensed use. However it is not intended that
any significant amount of the Common Area be licensed for the exclusive use of an
Owner or Owners. If a license is granted for a use which would deny all use by others,
the area covered by the license will be quite small. A single Owner's woodshed would
be an example. However, a license for a fenced pasture which allows continued hiking
by other Owners could involve a large area. The Owner(s) seeking such a use of a
portion of the Common Area shall make application to the Association in accordance
with the following procedure and requirements:
(a) Application for a license for a specific use shall be made
to the Association by submitting a map showing the location of the Common Area involved,
indicating the precise location of the structures, improvements, and fences which
the Owner(s) wish(es) to place in the Common Area and the actual location of any
roads passing through the Common Area affected;
(b) The license applied for may be granted in the discretion
of the Board of Directors of the Association if the Board finds that the following
conditions exist:
(i) Fences, structures, improvements and uses on and of the licensed
area will not unreasonably interfere with the use and enjoyment of the Common Area
by all the Owners;
(ii) The proposed enclosure of the licensed area is reasonable
in terms of the topography;
(iii) Licensing will not cause any material restriction of passage
through the Common Area;
(iv) Licensing will not hinder the Association's activities nor
the operations of any common enterprise undertaken by the other Owners;
(v) All structures or improvements shall be approved in accordance
with Section 2.02;
(vi) In the opinion of the Board of Directors of the Association,
the licensing would be appropriate under all of the existing circumstances.
(c) Licenses granted by the Association
shall be subject to the following conditions:
(i) The license may be revoked at any time without cause by the
Owner (or Owners) who applied for the license or by the Association unless a term
is specified;
(ii) Upon revocation of a license, the Owner(s) shall remove
all fences and other improvements placed upon the licensed area and restore the
area as nearly as practicable to its original natural state with 120 days, and if
the Owner(s) does not do so the Association may remove the improvements and restore
the area to its original natural state with 120 days of any revocation.
(d) The licensee shall be responsible for:
(i) All costs incurred by the Owner(s) and Association relative
to the licensed area, the processing of the application, the issuing of the license,
and any and all costs incidental to the revocation of the license and the removal
of fences and other improvements and the restoration of the area to its original
natural state.
(ii) Any fire control required by the Association on the licensed
area;
(iii) All costs of maintenance of the licensed area, attributable
to any licensed use including, but without limitation, security services.
Section
3.10: Restrictions on Use of Vehicles.
Motorized vehicle usage on the Property shall be limited to small, slow moving,
electric-powered vehicles approved by the Association. These vehicles may be used
only on the roads of the Association, the driveways to Parcels, and the Parcels.
The following are the exceptions to this restriction:
(a) The Association may own and operate for the benefit of the
Association non-electric motor vehicles considered necessary for the transport of
Owners, guests, agents and employees, maintenance of the Common Area, construction
activities, agricultural and aquicultural activities and fire control.
(b) The Association may permit Owners to use nonelectric motor
vehicles in specified portions of the Common Area under licenses awarded to Owners
for the use of a portion of the Common Area, provided that the vehicles permitted
may not be used on the roads of the Association except as needed to transport the
vehicles and materials to the licensed Common Area.
(c) The Association may permit Owners and their agents the temporary
use of necessary nonelectric vehicles for the construction of their residences and
related improvements.
(d) The Association may permit utility service providers to use
nonelectric vehicles to the extent necessary to maintain their facilities, including
telephone and electrical facilities.
(e) The Grantor may use those nonelectric vehicles necessary
to the building construction activity authorized in Article III, Section 3.06, the
aquicultural activities authorized in Article III, Section 3.08, and the marketing
and sales of the unsold or repossessed Parcels, provided that these vehicles may
not otherwise be used for the general transporting of people.
(f) Nonelectric motorized vehicles may be operated in the Common
Area by the Owner of Parcel SR-l as necessary in support of garden or agricultural
activities on that Parcel, but not otherwise for the general transporting of people.
(g) The Association may permit Owners to operate the Association
vehicles in the Common Area for the purposes described in Article III, Section 3.09.
Section
3.11: Excavation Restriction.
All excavation in the Common Area shall be monitored by the caretaker. If a significant
archaeological site is exposed further excavation or disturbance shall be halted
immediately and for a period of fourteen days after notification thereof is received
by the state Office of Archaeological and Historic Preservation or its successor
agency so that it may make a determination as to whether or not any steps are to
be taken to remove the artifacts.
Section
3.12: Protection of an Archaeological Site. An Archaeological site is identified on the Plat Map north/northeast
of the beach of Brigantine Bay. This is an undisturbed area of Indian artifacts.
There shall be no excavation in or removal of artifacts from this area without the
prior approval of the State of Washington's Office of Archaeological and Historic
Preservation or its successor.
Section
3.13: Protection of Domestic Water Wells.
A restrictive covenant has been filed with the San Juan County Auditor prohibiting
within 100 feet of those wells on the Property being used for domestic water supply
any source of contamination, such as cesspools, sewers, privies, septic tanks, drainfields,
manure piles, garbage of any kind or description, barns, chicken houses, rabbit
hutches, pigpens, or other enclosures or structures for the keeping or maintenance
of fowls or animals, or storage of liquid or dry chemicals, herbicides, or insecticides.
The terms and provisions of this restrictive covenant are incorporated herein by
this reference.
Section
3.14: Protection of Community Drainfields.
The Community Drainfields and Reserve Areas as shown on the Water and Sewerage Plans
approved by San Juan County shall not be graded, compacted, covered with any structure
or otherwise rendered unsuitable for drainfield use.
Section
3.15: Protection of the Eagles Nest.
No logging or vegetation removal is permitted within 660 feet of the eagles nest
located north of site P-14 except for that permitted on and south of the P-14 site.
Section
3.16: Easements in Common Area.
The following utility easements have been granted across the Common Area and recorded
with the San Juan County Auditor, to wit:
(a) Joseph T. Jones, William Jones, and San Juan County have
been granted a 60-foot easement for the extension of County Road #138 through a
portion of Government Lots 4 and 5 and the Northwest Quarter of the Southwest Quarter
of Section 15; and Government Lots 2 and 3, and the North Half of the Southeast
Quarter of Section 16, all in Township 35 North, Range 1 West W.M.
(b) Orcas Power and Light has been granted an easement for the
installation and continued operation, maintenance, repair, and replacement of underground
electric distribution lines, with all necessary fixtures thereon, for a distance
of 10 feet on either side of the underground distribution line shown on the as-built
construction drawings filed as a part of the easement.
,
(c) Inter-Island Telephone Company has been granted an easement
for the installation and continued operation, maintenance, repair, and replacement
of underground telephone lines, switching facilities, and other necessary fixtures
for a distance of 10 feet on either side of the telephone lines and facilities shown
on the as-built construction drawings filed with the easement. These easements are
referred to by this reference for the purpose of notice only.
ARTICLE IV: ANNUAL MAINTENANCE AND OPERATION,
CAPITAL. AND SPECIAL ASSESSMENTS
Section
4.01: Authorization of Assessments or Charges and Personal Obligations of
Payment. The Parcels shall be subject to such assessments
or charges as shall be levied by the Association from time to time as provided for
in this Declaration. Each such assessment or charge imposed upon a Parcel together
with any interest, costs, and reasonable attorney's fees which may be added thereto
pursuant to this Declaration, shall also be the personal obligation of the person
who is the Owner of such Parcel at the time each such assessment or charge is due.
Section
4.02: Assessments of Parcels.
Each Parcel shall be assessed equally, except for those Parcels which are authorized
to construct more than one single-family residence (excluding guest houses). A Parcel
permitted two residences shall be assessed at twice the level of Parcels permitted
one residence, and Parcels permitted three residences shall be assessed at three
times the level of Parcels permitted one residence. Notwithstanding the above, unsold
or repossessed Parcels held by the Grantor are not subject to any assessments until
the Association elects the Board of Directors pursuant to the Bylaws of the Association.
After the Association elects the Board of Directors, the Grantor's Parcels shall
be assessed at an amount equal to fifty percent (50%) of the assessments levied
upon other Parcels in accordance with Sections 4.02 and 4.04. Any assessments or
liens outstanding against a Parcel which is repossessed by the Grantor are extinguished
upon repossession. There shall be added automatically to any assessment or charge
not paid when due interest thereafter at such rate as shall be established from
time to time by the Association and costs of collection including attorney fees
incurred.
Section
4.03: Maintenance, Operation and Service Assessment or Charges. There shall be maintenance, operation and service assessments
or charges to pay the costs of maintaining, operating, repairing, and replacing
the Association's Common Property and providing services to Owners.
(a) Estimated Expenses. Thirty (30) days prior to the
commencement of each fiscal year the Association shall estimate the costs and expenses
to be incurred by the Association during the succeeding fiscal year in performing
its maintenance, operation and service responsibilities, including but not limited
to the development and maintenance of a reasonable reserve for emergencies and major
repair and replacement of capital equipment and facilities. The Association shall
subtract from the estimate the anticipated remainder at the commencement of the
fiscal year, if any, in the maintenance, operation and service fund, excluding reserves,
and the estimated receipts for all user fees to be collected during the next fiscal
year. The balance shall be the regular maintenance, operation and service assessment
or charge for such fiscal year to be assessed against each Parcel and collected
through equal monthly installments payable the tenth (10th) day of each month. Written
notice of the new assessment level is to be sent to all Owners.
(b) Approval of Assessment Amounts. For the calendar year
1983, the maintenance, operation and service assessments shall not exceed $65 per
month for each single family residence Parcel subject to such assessments. This
assessment level per Parcel may be raised by the Board of the Association no more
than 10 percent per year without the approval of the Association given in a duly
held meeting of the members.
(c) Financial Obligations of Grantor. Since during the
period that the Grantor appoints the Board of Directors of the Association pursuant
to the Association's Bylaws the Grantor shall manage the financial affairs of the
Association, in carrying out these responsibilities, the Grantor shall have the
following responsibilities.
(i) A portion of each maintenance, operation and service assessment
per Parcel shall be set aside into a capital repair and replacement reserve. Expenditures
may be made from this account only for major life-extending repairs and the replacement
of capital equipment or facilities;
(ii) The balance of each such assessment may be used for costs
required to carry out the maintenance, operation and service responsibilities of
the Association. To the extent that the assessments do not cover these expenses
of the Association, the Grantor shall provide the additional revenue;
(iii) A monthly report of the receipts and expenditures of the
Association shall be provided to the member of the Board of Directors who is required
to be an Owner, and this monthly report shall be available for inspection by any
member of the Association;
(iv) When the Grantor
relinquishes control of the Board of Directors to the members of the Association,
the Grantor shall provide a $20,000.00 payment for the Capital Repair and Replacement
reserve.
Section
4.04: Supplemental Assessments.
If at any time during any fiscal year the maintenance, operation and service assessment
or charges prove inadequate for any reason, including nonpayment of an Owner's share
or extra-ordinary costs incurred by the Association, the Association may levy additional
assessments to equal the amount of the inadequacy. Collection of such supplemental
assessments shall be on such schedule as the Association shall determine.
Section
4.05: User Fees and Charges.
The Association may establish and collect user fees for Owners' and guests' use
of the ferry system, land vehicles, buoys, recreational facilities, laundry, woodshop
equipment, and any other community facilities; provided that in the case of the
ferry system, land vehicles, and laundry, the charges may not be any more than the
user's share of the energy cost to operate the service for the user's benefit. All
other costs of these services are to be included in the maintenance, operation and
service assessment described in Section 4.03.
Section
4.06: Capital Improvement Assessments.
The Association may levy capital improvement assessments for the purpose of defraying
the costs of constructing or purchasing any capital improvement or equipment to
be used for the common benefit of the members of the Association. The assessments
are to be levied in the same manner as the maintenance, operation and service assessments,
except that payment thereof shall be on such schedule as the Association shall determine.
Capital assessments require the approval of the Association given in a duly held
meeting of the members.
Section
4.07: Special Assessments.
The Association may levy special assessments against any Owner whose acts cause
money to be expended for unanticipated purposes by the Association in performing
its functions. These assessments shall be in the amount expended and shall be due
and payable to the Association immediately when levied.
Section
4.08: Assessments for Shared Utility Services. The Association shall levy an assessment against a Parcel for
its share of the costs, as determined by the Design Committee, of designing, purchasing,
and installing utility facilities to be shared with another Parcel for which utility
construction plans have been submitted to and approved by the Design Committee.
The Association shall establish the schedule for payment of this assessment.
Section
4.09: Liens, Collection of Assessments.
(a) Any assessment or charge levied by the Association against
any Parcel in Decatur Northwest, including interest on such charge or assessment
and collection costs, if any, shall constitute a lien upon such Parcel as soon as
such charge, assessment, interest or costs shall become due and payable. Such lien
shall be superior to any and all other liens at any time levied or imposed upon
such Parcel, except as provided in Section 4.10.
(b) Any assessment or charge imposed by the Association upon
any member who is the Owner of a Parcel or Parcels in Decatur Northwest, including
interest on such charge or assessment and collection costs, if any, shall be and
become a lien upon the Parcel or Parcels owned by such member as soon as such charge,
assessment, interest, or costs shall become due and payable. Such lien shall be
superior to any and all other liens at any time levied or imposed upon such Parcel
or Parcels, except as provided in Section 4.10.
(c) All liens herein provided for shall be enforceable by foreclosure
proceedings in the manner provided by law for the foreclosure of mortgages; provided,
however, that by the acceptance of a deed for any Parcel or Parcels, or by the signing
of a contract or agreement to purchase the same, whether from the present or subsequent
Owner thereof, such Owner shall thereby waive all rights of redemption and of homestead
in such Parcel or Parcels with respect to foreclosure of such liens. As an alternative
remedy to the foreclosure of such liens, the Association shall have the exclusive
right and option, at any time after the expiration of a period of sixty (60) days
during which any of such charges or assessments shall remain unpaid, to purchase
any Parcel upon which such lien or liens are imposed upon payment to the Owner of
such Parcel an amount equal to fifty percent (50%) of the price at which said Parcel
was sold by Grantor, less the sum of:
(i) The amount owed on the note, secured by deed of trust, for
sale of such Parcel or Parcels by Grantor, as vendor, plus
(ii) The amount of unpaid assessments or charges or any other
lien or encumbrance against such Parcel but in any event not less than one hundred
dollars ($100.00). Upon the exercise of said option by the Association, the Owner
of such Parcel shall convey to the Association all right, title, and interest which
such Owner may have in such Parcel. In any court proceeding to enforce such option,
the Association shall be entitled to have a decree of a specific performance entered
in its behalf. Furthermore, the Association shall have the right, at any time after
the expiration of 60 days during which any of such assessments and charges shall
remain unpaid and after ten (10) days' notice of intent to exercise this right,
to prohibit and prevent the Owner of any Parcel subject to such a lien, and such
Owner's guests, invitees, agents, representatives, and those using, by or with such
Owner’s permission, consent, or sufferance, the Common Property of Decatur Northwest
or the Owner's Parcel from using the Common Property of Decatur Northwest until
all assessments and charges are paid. Any Owner affected by such suspension shall
be afforded a reasonable opportunity of a hearing by the Board of Directors of the
Association regarding such suspension within thirty (30) days of delivery to the
Secretary or President of the Association of a written request for a hearing.
Section
4.10: Subordination of the Lien to Mortgages. The lien of the assessments and charges provided herein shall
be subordinate to the lien of any duly constituted and recorded first mortgage.
ARTICLE V: COMMUNITY SEWERAGE SYSTEM
Section
5.01: Participation. The following
Parcels will hook up their waste water systems to the Community System of main-line
pipes and community drainfields: All SB Parcels, all P Parcels, all EC Parcels,
all L Parcels, WR Parcels 2 – 6, HR-I, SC-2, 3, 5, 9, 10, and SC-6, 7, and 8. The
Owners of these Parcels are all participating members of the Community Sewerage
System. The management of the Community Sewerage System will be provided through
the Association and is governed by the terms of a Sewerage Management Contract.
Section
5.02: Assessments. There shall be two types of assessments
for the sewerage system, a maintenance assessment and an emergency repair assessment,
both of which are described below. These assessments shall be added to the monthly
assessments described in Article IV for the appropriate Parcels and shall become
liens against the Parcels in the same manner and to the same extent as the assessments
described in Article IV.
(a) Maintenance Assessment. Thirty (30) days prior to
the commencement of each fiscal year, the Association shall estimate the costs of
examinations, servicing, analysis, preventive maintenance, anticipated repairs and
system modifications and any other costs necessary to operate and maintain the system
to be incurred during the next fiscal year. Any balance anticipated in the Community
Sewerage maintenance fund at the commencement of the fiscal year shall be subtracted
from the total expenses and the balance, if any, shall be assessed equally against
the Parcels that are participants in the Community Sewerage System, except that
Parcels SC-6, 7, and 8 shall pay an assessment for each residence permitted on the
Parcel under the Plat.
(b) Emergency Repair Assessment. An emergency fund shall
be established to make significant unexpected repairs to the System. The amount
of this fund shall be determined by the Association. Assessments to develop and
maintain this fund may be through hook-up charges and/or monthly assessments. Monthly
assessments shall be made in the same manner as in Section 5.02(a) above. Hook-up
charges, if any, and their manner of payment shall be determined
by the Board of Directors.
Section
5.03: Records. The Association shall maintain separate
records and accounts for the maintenance and the emergency repair funds of the Sewerage
System. These funds are to be kept separate from the Association's other funds.
Reports on the revenue, expenses, and balances of the two funds are to be made annually
to the members of the Sewerage System, to San Juan Title Company in Eastsound, Washington,
and to appropriate governmental authorities.
Section
5.04: Management. The Association shall maintain the Community
Sewerage System, including inspection, monitoring, repair, and improvement or replacement
of facilities. The Association shall also inspect the septic tanks, holding tanks,
pumps and piping, and other portions of the sewerage facilities on private Parcels
that are within the Community Sewerage System for the proper operation of these
facilities. Each Owner shall carry out the maintenance, repair, improvement or replacement
activities required on the Owner's Parcel under the Association's supervision. If
the Association carries out the maintenance, repair, improvement or replacement
at the Owner's request, or because of the failure of the Owner to carry out the
required activity, the costs of that maintenance, repair, improvement or replacement
shall be an additional assessment upon the Parcel involved due immediately.
Section
5.05: Transfer of Responsibility.
The Association may turn over the management responsibilities for the Community
Sewerage System to a governmental agency, along with the authority for that governmental
agency to levy assessments for the management, maintenance, operation, improvement,
and replacement of the facilities of the Community Sewerage System. Such transfer
of responsibility shall be subject to the approval of San Juan County health authority.
ARTICLE VI: ADDITION
OF RESERVE PARCEL
Section
6.01: Reserve Parcel. The Reserve Parcel is more fully described by
the legal description in Attachment D to this document. The Grantor reserves the
right to subdivide the Reserve Parcel and either add the subdivided parcels and
common area to the Property or to keep the Reserve Parcel separate from the Property,
but utilize for the Reserve Parcel the water and fire protection systems servicing
the Property. The conditions of entering into either of these arrangements, in addition
to San Juan County subdivision approval, are described below.
Section
6.02: Adding the Subdivided Reserve Parcel to the Property. The Grantor may subdivide the Reserve Parcel into a maximum
of twelve (12) private parcels, plus common areas, if the Reserve Parcel is to be
added to the Property. The Grantor reserves a blanket easement across the Common
Area of the Property for the purposes of connecting roads and services of the Reserve
Parcel to the existing roads, power, telephone, cable TV, and water system of the
Property in the event the Reserve Parcel is added to the Property. The Grantor also
reserves the right to develop a water supply for the Reserve Parcel on the Common
Area of the Property if additional water supply is required to serve the Reserve
Parcel. No payments or charges may be required of the Grantor to add the parcels
or common area of the Reserve Parcel to the Property or for the aforesaid reservations.
Once the parcels in the Reserve Parcel are part of the Property, then (a) the assessments
and charges applicable to all other Parcels would apply to the new parcels on the
same basis, (b) each owner of a parcel in the Reserve Parcel shall become a member
of the Association on the same basis as all Owners within the Property, and (c)
the parcels and common area of the Reserve Parcel shall be subject to the same restrictions,
covenants, and conditions and charges, assessments, and liens as those of the Property,
except as follows:
(a) The new parcels may be larger in size and therefore permitted
a wider range of buildings and activities on the parcels.
(b) The new parcels may be permitted to have private buoys in
the waters adjacent to the Reserve Parcel.
Section
6.03: Utilizing the Water and Fire Protection System and Equipment of the Property. The Grantor reserves the right to use the Water System and
fire protection equipment of the Property for the benefit of the Reserve Parcel
in the event the Reserve Parcel is kept separate from the Property. The Grantor
also reserves
(i) a blanket easement across the Common Area of the Property
for the purpose of connecting the Reserve Parcel to the roads, power, telephone
and water system of the Property, and
(ii) the right to develop a water system on the Common Area of
the Property if additional water supply is required to facilitate such use of the
Property's water system and fire protection equipment. In the event the Property's
water system and fire protection equipment is to be used for the benefit of the
Reserve Parcel,
(a) the Reserve Parcel may be subdivided into a maximum of twenty-one
(21) private parcels, plus common area;
(b) no payments or charges are to be made to connect to or use
these facilities or services of the Property except that once such facilities or
services have been connected to the Reserve Parcel and are ready for use, pro-rata
assessments may be made against the parcels in the Reserve Parcel and the owners
thereof in the manner provided in Article IV to cover the costs of the water system
and fire protection equipment, which assessments are to be no more than the amount
assessed against the Parcels within the Property for the same facilities and services.
ARTICLE VII: GENERAL PROVISIONS
Section
7.01: Discipline and Suspension of Rights.
The Association may suspend the voting rights and right of any Owner to use any
common property for any period, not to exceed sixty (60) days, for any breach of
this Declaration or the published Rules. Suspension shall be only after such owner
is afforded a reasonable opportunity of a hearing by the Board of Directors of the
Association.
Section
7.02: Enforcement. The Association, or any Owner, shall have
the right to enforce, by any proceeding at law or in equity, all restrictions, covenants
and conditions now or thereafter imposed by the provisions of this Declaration.
Failure of the Association, or of any Owner, to enforce any restriction, covenant
or condition contained in this Declaration shall not be deemed a waiver of any later
rights.
Section
7.03: Severability. Invalidation
of any portion of this Declaration by judgment or court order shall not affect any
other provision, and the remainder of this Declaration shall remain in full force
and effect.
Section
7.04: Amendments. This Declaration may be amended at any
time by a duly recorded amendment executed by the Owners of sixty percent (60%)
of the Parcels within the Plat; PROVIDED, HOWEVER, that each and every change in
limitations or exclusions from assessments set forth in Section 4.02 hereof shall
require the approval of Orcatur, its successors to or assigns of substantially all
of its interests as distinguished from purchasers of Parcels from Orcatur.
Section
7.05: Binding Effect. All of the
provisions of this Declaration shall be deemed to be covenants and obligations running
with the land. Also Orcatur and all parties claiming by, through or under it shall
be taken to hold, agree, and covenant with Orcatur, its successors and assigns,
and with each of them, to conform to and observe all terms and conditions herein
contained.
IN WITNESS WHEREOF, this instrument is executed
on the day and year first above written.
ORCATUR
ASSOCIATES
By_______________________
James W. Youngren James W.
Youngren
Deed of Trust Beneficiary General Partner General Partner
By
_______________________
Philip
G. Sherburne
FIRST
INTERSTATE BANK OF
WASHINGTON,
N.A.
By
________________________
Victor
M. Magruder
Vice
President
Deed
of Trust Beneficiary