THIS DECLARATION is made this 19 day of July, 1977, by JOSEPH E. BERNOLFO, III.
I. PURPOSE OF COVENANTS.
1.1 It is the intention of the Declarant, expressed by execution of this instrument, that the Property within the Northstar Subdivision be developed and maintained as a highly desirable residential area. It is the purpose of these covenants that the present natural beauty, view and surroundings of Northstar Subdivision shall always be protected insofar as is possible in connection with the uses and structures permitted by this instrument. Joseph E. Bernolfo, III hereby declares that the Property and every part thereof is held and shall be held, conveyed, devised, leased, rented, encumbered, used, occupied and improved and otherwise affected in any manner subject to the provisions of this Declaration, each and all of which provisions are hereby declared to be in furtherance of the general plan and scheme of ownership referred to herein and are further declared to be for the benefit of the Property and every part thereof and for the benefit of each Owner thereof. All provisions hereof shall be deemed to run with the land as covenants running with the land or as equitable servitudes as the case may be, and shall constitute benefits and burdens to the Declarant, his successors and assigns, and to all parties hereafter owning any interest in the Property.
When used in this Declaration (including the foregoing), the following terms shall have the meaning set forth in this Article II:
2.1 Declaration. "Declaration" shall mean and refer to this "Declaration" of Protective Covenants For The Northstar Subdivision.
2.2 Declarant. "Declarant" means Joseph E. Bernolfo, III, together with heirs, personal representatives, successors and assigns.
[-1-BOOK M97 PAGE 387]
2.3 Property. "Property" means that certain real property located in Summit County, Utah, described in Exhibit A attached hereto.
2.4 Building. "Building" means any building constructed on the Property.
2.5 Lot. A "Lot" shall mean and refer to any of the ten separately numbered parcels of property shown as such on the recorded Subdivision plat.
2.6 Subdivision. "Subdivision" shall mean the Northstar Subdivision recorded as Entry No. 138365, in the records of Summit County, Utah.
2.7 City. "City" shall mean Park City Municipal Corporation.
2.8 Owner. "Owner" shall mean and refer to each person or entity who owns of record (as shown by the real property records of Summit County, Utah, maintained in the office of the said County Recorder) fee title or an undivided fee title interest in and to a Subdivision Lot. Notwithstanding any applicable theory relating to a mortgage, trust deed, or like instrument, the term Owner shall not mean or include a mortgage, or a beneficiary or trustee under a trust deed unless and until such party has acquired fee title pursuant to foreclosure or any arrangement or proceeding in lien thereof.
III. NORTHSTAR HOMEOWNER ASSOCIATION.
3.1 General Purposes and Powers. Northstar Homeowners Association ("Association") has been formed and incorporated as a Utah nonprofit corporation to be constituted and to perform functions as provided in this Declaration and to further the common interest of all Owners of property which may be subject, in whole or in part, to any or all of the provisions, covenants, conditions, and restrictions contained in this Declaration. The Association shall be obligated to and shall assume and perform all functions and obligations imposed on it or contemplated for it under this Declaration and any similar functions or obligations imposed on it or contemplated for it under any Supplemental or Amended Declaration with respect to any Property now or hereafter subject to this Declaration. The Association shall have all powers necessary or desirable to effectuate these purposes. It shall not engage in commercial, profit making activity.
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3.2 Membership in Northstar Homeowners Association. Every Owner shall automatically be a member of the Association. Membership in the Association shall be mandatory, shall be appurtenant to the Subdivision Lot in which the Owner has the necessary interest, and shall not be separated from the Subdivision Lot to which it appertains. No shares of stock or membership certificates shall issue to evidence membership in the Association, but membership shall be determined by reference to the real property records of Summit County, Utah, maintained in the office of the said County Recorder. The conveyance or other disposition by an Owner of his fee title or undivided fee title interest in and to said Subdivision Lot shall automatically convey to said Owner's successor in interest said Owner's appurtenant membership in the Association.
3.3 Voting. On all matters coming before the Association members for a vote, the Owners of each Subdivision Lot shall be collectively entitled to only one vote, and it shall be necessary for said Owners to act unanimously in order to cast the single vote to which they are entitled.
IV. MUNICIPAL SERVICES
4.1 Restricted Municipal Services. The Declarant has dedicated to the City, the requisite rights of way for streets and utilities. However, the blacktop paved portion of said street rights of way may not meet City standards for width purposes. Consequently, pursuant to the terms of that certain "Release, Waiver and Agreement of Proposed North Star Subdivision" entered into between Declarant and the City dated the 29th day of April, 1977, and recorded as Entry No. 138366, Book M95, Page 290-293, of official records of Summit County, Utah, it may be that the City will not maintain the paved streets within the Subdivision; and it may be that the City will not provide snow removal, or garbage and refuse collection services within the Subdivision.
4.2 Release of Liability. The Declarant, for himself, and any and all transferees, assigns, buyers and all others deriving title from Declarant or holding any rights, or interest to any Subdivision Lot or Property, and any of their heirs, personal representatives, successors and assigns hereby RELEASE, ACQUIT, AND FOREVER DISCHARGE the said City from any and all actions, causes of action, claims, demands, damages, costs, medical expenses, expenses and compensation, or suits, on account of, or in any way arising out of, and any property [- 3 -BOOK M97 PAGE 389] damage of any kind whatsoever, arising out of the inability of the City to provide fire, medical or other emergency services, customarily provided by the City in and upon the streets of this Subdivision because and solely because the said streets of the Subdivision may not be sufficiently wide to enable the City to bring upon said streets the vehicles necessary to provide said services.
V. COVENANT FOR ASSESSMENT.
5.1 Creation of Lien and Personal Obligation for Assessments. The Declarant, for each Lot within the Subdivision, hereby covenants, and each Owner of any Subdivision Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay the Association: (1) annual assessments or charges; and (2) special assessments for capital improvements; such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge upon every Subdivision Lot and shall be a continuing lien upon every Subdivision Lot against which each such assessment is made. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of each person or entity who was the Owner of a Subdivision Lot at the time the assessment fell due.
5.2 Purpose of Assessments. The assessments levied by the Association shall be used exclusively to provide for snow removal, and/or garbage and refuse collection services, for the maintenance and improvement of the paved streets within the Subdivision, and for such other customary City services as the City shall refuse to provide to Subdivision Lot Owners by agreement or otherwise, and for such other expenditures as may be necessary to orderly carry out the purposes for which the Association was organized.
5.3 Annual Assessment. Until
January 1st of the year immediately following the occupancy of the
first residential dwelling constructed on any Subdivision Lot by an
Owner, the annual assessment for each Subdivision Lot shall not
exceed $300.00 per Lot (the "rate").
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The maximum annual assessment rate may be increased
effective on January 1st of each succeeding year if there has been an
increase in the Consumer Price Index published by the U.S. Department
of Labor. If the Consumer Price Index for the month of December in
the succeeding year is greater than the same Index for the month of
August in the base year, then the maximum annual assessment rate may
be increased by the same proportion as the Consumer Price Index for
the month of August in the succeeding year, is greater than the same
Index for the month of August in the base year without a vote of the
Association members. The base year for assessment purposes shall be
the year immediately preceding the year for which the assessment rate
is to be fixed. The annual assessment rate may be increased above
said maximum annual assessment rate by an affirmative vote of 2/3 of
the votes which Association members are entitled to cast at a special
meeting duly called for this purpose. The Association may fix the
annual assessment at a rate not to exceed the maximum authorized
herein. The Index of the Consumer Price Index to be used for this
purpose shall be the U.S. City Average for all items. If publication
of the Index is discontinued, the Association shall designate and use
comparable statistics as they shall be published by an agency of the
United States of America or by a responsible financial periodical of
recognized authority most nearly reflecting the results of the
discontinued Index. [SEE 1st_Amendment_to_DPC_NS
, January 21, 1998] "Section 5.3 is amended and restated in its
entirety to read as follows:
5.3 Annual Assessment. The amount of the annual assessment for 1997 is $500.00 per Lot. The amount of the annual assessment for succeeding years shall be set by the Governing Board based upon the financial status of the Association and an expectation of expenses for the ensuing calendar year. However, in no year shall the Governing Board set the annual assessment at an amount greater than 120 percent of the amount (maximum annual assessment) for the year immediately preceding the year for which the assessment is being set. At no time shall the Governing Board set the annual assessment above $1,500.00 (assessment cap). The annual assessment may be increased above said maximum annual assessment or assessment cap by an affirmative vote of 2/3 of the votes which Association members are entitled to cast at the annual meeting or special meeting duly called for this purpose."
5.4 Special Assessments For Capital Improvements. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purposes of defraying, in whole or part, the cost of any construction, reconstruction, repair or replacement of any paved street located within the Subdivision not maintained by the City, upon an affirmative vote of 2/3 of the votes which Association members are entitled to cast at a special meeting duly called for this purpose.
5.5 Uniform Rate of Assessment.
Both annual and special assessments must be fixed at a uniform rate
and may be collected on a monthly basis. [SEE
1st_Amendment_to_DPC_NS , January 21, 1998]
"Section 5.5 is repealed in its entirety." 5.6 Annual Assessment Commencement and Due
Dates. As to Subdivision Lots 1 through 9, the
annual assessment provided for herein shall commence on the first day
of the month following the conveyance by Park City Development
Company, Inc. to [- 5 -BOOK M9 7 PAGE
391] an Owner of each respective Lot. As to
Subdivision Lot 10, the annual assessment provided for herein shall
commence on the first day of the month following the conveyance by
Declarant to an Owner of said Lot, or the first day of the month
following the last of Subdivision Lots 1 through 9 to be conveyed by
Park City Development Company, Inc. to any Owner, whichever event
first occurs. The annual assessment period shall be based on a
calendar year. The first annual assessment shall be adjusted
according to the number of days remaining in the assessment year. The
Governing Board of the Association shall fix the rate of the annual
assessment at least 30 days in advance of each annual assessment
period. Written notice of the annual assessment shall be sent to
every Subdivision Lot Owner subject thereto. The due dates shall be fixed annually by the Governing
Board of the Association. Any assessment not paid within 30 days
after the due date shall bear interest at the rate of 8 percent per
annum until paid. The Association shall, upon demand, and for a
reasonable charge, furnish a certificate signed by an officer of the
Association stating whether the assessments on a specified
Subdivision Lot have been paid, and, if not, stating for each
assessment period the amount in arrears. [SEE
1st_Amendment_to_DPC_NS , January 21, 1998]
"Section 5.6 is amended and restated in its entirety to read as
5.6. Annual Assessment and Due Dates. The annual assessment period shall be based on a calendar year. The Governing Board of the Association shall fix the amount of the annual assessment at least 30 days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Subdivision Lot-Owner subject thereto. The due dates shall be fixed annually by the Governing Board of the Association. Any assessment not paid within 30 days after the due date shall bear interest at the rate of 8 percent per annum until paid. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association stating whether the assessments on a specific Subdivision Lot have been paid, and, if not, stating for each assessment period the amount in arrears."
5.7 Remedies For Non-Payment of Assessments. The Association may bring an action at law against the Owner obligated to pay the assessments, or foreclose the lien against the property, or both. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use or abandonment of his Subdivision Lot.
5.8 Subordination of Lien. The lien of any assessment provided for herein shall be subordinated to the lien of any first mortgage or trust deed. The sale or transfer of any Subdivision Lot shall not affect any assessment lien. However, the sale or transfer of any Subdivision Lot pursuant to the foreclosure of any first mortgage or trust deed or any proceeding in lien thereof, shall extinguish the lien of any such assessment as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Subdivision Lot or subsequent Owners from liability for any assessments thereafter becoming due or from the lien thereof.
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VI. ARCHITECTURAL COMMITTEE.
6.1 Architectural Committee. The
Architectural Committee shall consist of three members. The initial
committee shall consist of two members selected by Declarant (one of
whom may but need not be the Declarant himself) and one member
selected by the Northstar Homeowners Association. So long as
Declarant shall continue to own any of the Lots in the Northstar
Subdivision he shall continue to have the power to appoint successors
to the initial members selected by him and may require the
resignation of any member appointed by him. The Northstar Homeowners
Association shall have the power to require the resignation of
members appointed by it and shall have the power to appoint
successors to the members appointed by it. Upon such time the
Declarant shall no longer have any ownership interest in any Lot in
said Subdivision then the successor members shall be selected by the
Northstar Homeowners Association. [SEE 1st_Amendment_to_DPC_NS
, January 21, 1998] "Section 6.1 is amended and restated in its
entirety to read as follows: Section
6.1. Architectural Committee. The Architectural Committee shall consist of three owners who are elected by the Association for a term of one year at each annual meeting of the Association. Each Association owner shall be entitled to vote for three candidates with the three candidates receiving the largest number of votes being elected to the Architectural Committee."
6.2 Approval by Architectural Committee. No improvements of any kind, including but not limited to dwelling houses, swimming pools, ponds, building pads, parking areas, fences, walls, tennis courts, garages, drives, bridges, antennae, flag poles, curbs, and walks shall ever be erected, altered or permitted to remain on any Subdivision Lot or Property, nor shall any excavating, alteration of any stream, clearing, removal of trees, or shrubs, or landscaping be done on any Subdivision Lot or Property, unless the complete plans and specifications therefor are approved by the Architectural Committee prior to the commencement of such work. A fee of $50.00 shall be paid to the Architectural Committee to cover costs and expenses of review. Improvements to be done after the initial improvements costing less than $500 shall be submitted as directed to the Architectural Committee for approval but the fee of $50 shall not be required. The Architectural Committee shall consider the materials to be used on the exterior features of said buildings and structures, including exterior colors, harmony of external design with existing structures within said Subdivision, location with respect to topography and finished grade elevations and harmony of landscaping with the natural setting and surrounding native trees, bushes and other vegetation. The complete architectural plans and specifications must be submitted in duplicate, must include at least four different elevation views. One complete copy of the plans and specifications shall be signed for identification by the Owner and left with the Architectural Committee. In the event the Architectural Committee fails to take any action within 45 days after the complete plans for such work have [-7-BOOK M97 PAGE 393] been submitted to it, then all of such submitted plans shall be deemed to be approved. In the event the Architectural Committee shall disapprove any plans, the person submitting such plans may appeal the matter at the next annual or special meeting of the members of the Association, where an affirmative vote of at least 2/3 of the membership shall be required to change the decision of the Architectural Committee.
6.3 Variances. Where circumstances, such as topography, hardship, location of property lines, location of trees, brush or other matters require, the Architectural Committee may, by an affirmative vote of a majority of the members of the Architectural Committee, allow reasonable variances as to any of the covenants and restrictions contained in this instrument, on such terms and conditions as it shall require.
6.4 General Requirements. The Architectural Committee shall exercise its best judgment to see that all improvements, construction, landscaping, and alterations on any Subdivision Lot or Property conform and harmonize with the natural surroundings and with existing structures as to external design, materials, color, siting, height, topography, grade and finished group elevation.
6.5 Preliminary Approvals. Persons who anticipate constructing improvements on any Subdivision Lot or Property whether they already own Subdivision Lots or Property or are contemplating the purchase of such Subdivision Lots or Property may submit preliminary sketches of such improvements to the Architectural Committee for informal and preliminary approval or disapproval. All preliminary sketches shall be submitted in duplicate and shall contain a proposed site plan together with sufficient general information on all aspects that will be required to be in the complete plans and specifications to allow the Architectural Committee to act intelligently on giving an informed and preliminary approval or disapproval. The Architectural Committee shall never be finally committed or bound by any preliminary or informal approval or disapproval until such time as complete plans are submitted and approved or disapproved.
6.6 Plans. The Architectural Committee shall disapprove any plans submitted to it which are not sufficient for it to exercise the judgment required of it by these covenants.
[- 8 -BOOK M97 PAGE 394]
6.7 Architectural Committee Not Liable. The Architectural Committee shall not be liable in damages or otherwise to any person submitting any plans for approval, or to the Association or to any Owner or Owners of any Subdivision Lot or Property, by reason of any action, failure to act, approval, disapproval, or failure to approve or disapprove, with regard to such plans. Any person acquiring the title to any Subdivision Lot or Property or any person submitting plans to the Architectural Committee for approval, by so doing shall be deemed to have agreed and covenanted that he or it will not bring any action or suit to recover damages or other relief against the Architectural Committee, its members as individuals, or its advisors, employees, or agents.
6.8 Written Records. The Architectural Committee shall keep and safeguard complete written records of all applications for approval submitted to it (including one set of all preliminary sketches and all architectural plans so submitted) and of all actions of approval or disapproval and all other actions taken by it under the provisions of this instrument which records shall be maintained for a minimum of five years after approval or disapproval.
6.9 Occupancy. No Building within any Subdivision Lot or Property shall be occupied until and unless the Owner of any Building shall first have obtained a written final inspection and approval from the Architectural Committee stating that the Owner has completed the Building in accordance with, and complied with, all approved plans and is entitled to occupancy.
VII. GENERAL RESTRICTIONS ON ALL PROPERTY.
7.1 Zoning Regulations. No Subdivision Lot or Property shall ever be occupied or used by or for any building or purpose or in any manner which is contrary to the zoning regulations applicable thereto validly in force from time to time.
7.2 Business Uses. The Subdivision Lots or Property shall be used exclusively for residential living purposes and such other uses as are not inconsistent with the exclusive purpose and are permitted by the zoning regulations applicable thereto validly in force from time to time, such purposes to be confined to approved residential Buildings within the Property. No Subdivision Lot or Property shall ever be occupied or used for any commercial or business purposes, provided, [- 9 -BOOK M97 PAGE 395] however, that nothing in this Paragraph 7.2 shall be deemed to prevent (a) Declarant, Park City Development Company, Inc., or their duly authorized agents from using any Subdivision Lot owned by Declarant or Park City Development Company, Inc. as a sales office, sales model, property management office, rental office, or maids quarters, or (b) any Owner or his duly authorized agent from renting or leasing said owner's residential Building from time to time, subject to all of the provisions of this Declaration, or (c) the construction of a double family (duplex) unit as permitted by Section 8.1 hereof.
7.3 Restriction on Signs. With the exception of a sign no larger than three square feet identifying the architect and a sign of similar dimension identifying the prime contractor to be displayed only during the course of construction and a sign no larger than three square feet for the Owner to advertise his home or Subdivision Lot for sale, no signs or advertising devices, including but without limitation, commercial, political, informational or directional signs or devices, shall be erected or maintained on any Subdivision Lot or Property, except signs approved in writing by the Architectural Committee as to size, materials, color and location: (a) as necessary to identify ownership of the Subdivision Lot and its address; (b) as necessary to give directions; (c) to advise of rules and regulations; (d) to caution or warn of danger; and (e) as may be required by law.
7.4 No Resubdivision. No Subdivision Lot shall be resubdivided and no Building shall be contracted or allowed to remain on any tract that comprises less than one full Subdivision Lot.
7.5 Underground Utility Lines. All water, gas, electrical, telephone and other electronic pipes and lines and all other utility lines within the limits of the Subdivision Lots or Property must be buried underground and may not be exposed above the surface of the ground.
7.6 Service Yards. All clothes lines, equipment, service yards or storage piles on any Subdivision Lot or Property shall be kept screened by approved planting or fencing so as to conceal them from the view of neighboring Lots, streets, access roads and areas surrounding the Subdivision Lots or Property.
7.7 No Noxious or Offensive Activity. No noxious or offensive activity shall be carried on upon any Subdivision Lot or Property nor shall anything be done or placed on any Subdivision Lot or Property which is or may become a nuisance or cause embarrassment, disturbance or annoyance to others.
[- 10 - BOOK M97 PAGE 396]
7.8 No Hazardous Activities. No activities shall be conducted on any Subdivision Lot or Property and no improvements constructed on any Subdivision Lot or Property which are or might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms shall be discharged upon any Subdivision Lot or Property; and no open fires shall be lighted or permitted on any Subdivision Lot or Property except in a contained barbecue unit while attended and in use for cooking purposes or within a safe and well-designed interior fireplace.
7.9 No Unsightliness. No unsightliness shall be permitted upon any Subdivision Lot or Property. Without limiting the generality of the foregoing, (a) any unsightly structures, facilities, equipment, tools, boats, vehicles other than automobiles, objects and conditions shall be enclosed within an approved Building or appropriately screened from view, except equipment and tools when in actual use for maintenance or repairs; (b) no trailers, mobile homes, tractors, truck campers or trucks other than pickup trucks shall be kept or permitted to remain upon any Subdivision Lot or Property; (c) no vehicle, boat or equipment shall be constructed, reconstructed, repaired or abandoned upon any Subdivision Lot or Property; (d) no lumber, grass, shrub or tree clippings, plant waste, metals, bulk materials or scrap shall be kept, stored or allowed to accumulate on any Subdivision Lot or Property, except in service yards meeting the requirements of Section 7.6; (e) refuse, garbage and trash shall be placed and kept at all times in a covered container and such container shall be kept within an enclosed structure or appropriately screened from view; (f) hanging, drying or airing of clothing or household fabrics shall not be permitted within Buildings, or on any Subdivision Lot or Property if visible from Buildings, or areas surrounding the Property.
7.10 No Annoying Lights, Sounds or Odors. No light shall be emitted from any Subdivision Lot or Property which is unreasonably bright or causes unreasonable glare; no sound shall be emitted from any Subdivision Lot or Property which is unreasonably loud or annoying including but without limitation, speakers, horns, whistles, bells or other sound devices, except security and fire alarm devices used exclusively to protect any of the Property or Buildings; and no odors shall be emitted from any Subdivision Lot or Property which are noxious or offensive to others.
[- 11 - BOOK M97 PAGE 937]
7.11 No Cesspools or Septic Tanks. No cesspools or septic tanks shall be permitted on any Subdivision Lot or Property. Any other type of sewage disposal system shall be installed only after approval by the Architectural Committee and all governmental health authorities having jurisdiction.
7.12 Maintenance of Property. All Subdivision Property and all improvements on any Subdivision Lot shall be kept and maintained by the owner thereof in clean, safe, attractive and sightly condition and in good repair.
7.13 Rules and Regulations. No owner shall violate the rules and regulations for the use of the Lots as adopted from time to time by the Association. No such rules or regulations shall be established which violate the intention or provisions of this Declaration or which shall unreasonably restrict the use of any Subdivision Lot by the owner thereof.
VIII. RESTRICTIONS ON SUBDIVISION LOTS.
8.1 Number and Location of Buildings. No Building or structures shall be placed, erected, altered, or permitted to remain on any Subdivision Lot other than one single family or one double family dwelling, and one garage together with related nonresidential structures and improvements of the types described in Section 6.2 hereof. Each Subdivision Lot must be improved with a garage with at least a two-car capacity at the time of construction of the single family or one double family dwelling on the Subdivision Lot.
The location of the building for all such Buildings and structures shall be established by the Architectural Committee. In approving or disapproving the building site, the Architectural Committee shall take into consideration the locations with respect to topography, trees, brush, and finished grade elevations and the effect thereof on the setting and surrounding of the Subdivision.
8.2 Trees and Brush. No living tree or scrub oak shall be destroyed or removed from any Subdivision Lot or Property until and unless the owner of such Subdivision Lot or Property first obtains the approval therefor from the Architectural Committee as herein provided and such owner otherwise complies with all of the provisions in this section.
[- 12 -BOOK M9 7 P AGE 398]
8.3 Residence Floor Area. The residence structure which may be constructed on a Subdivision Lot shall have a minimum living floor area, exclusive of garages, balconies, porches, and patios of 1,800 square feet.
8.4 Dwelling House to be Constructed First. No garage or other structure shall be constructed on any Subdivision Lot until after commencement of construction of the dwelling house on the same Subdivision Lot except as otherwise specifically permitted by the Architectural Committee. All construction and alteration work shall be prosecuted diligently, and each Building, structure, or improvement which is commenced on any Subdivision Lot shall be entirely completed within 18 months after commencement of construction.
8.5 Setbacks. All front, side and rear yard dimensions shall conform to the Building location hereto established in accordance with Section 8.1 hereof.
8.6 Height Limitations. No building or structure shall be placed, erected, altered or permitted to remain on any Subdivision Lot which exceeds a height of 28 feet measured vertically from the average finished grade elevation of the foundation of such building or structure.
8.7 Towers and Antennae. No towers, and no exposed or outside radio, television or other electrical antennae, with the exception of television receiving antennae shall be allowed or permitted to remain on any Subdivision Lot.
8.8 Used or temporary Structures. No used or previously erected or temporary house, structure, house trailer, mobile home, camper, or nonpermanent outbuilding shall ever be placed, erected, or allowed to remain on any Subdivision Lot except during construction periods, and no dwelling house shall be occupied in any manner prior to its completion and approval in accordance with Section 6.9 hereof.
8.9 Fences. It is the general intention that all perimeter fencing within the Property have a continuity of appearance in keeping with the setting and surroundings of the Property. The term "perimeter fencing" is defined to mean fences along or near Subdivision Lot lines or fencing not connected with a Building or structure. All perimeter fencing shall be of a type specified by the Architectural Committee. No fence shall be allowed to be constructed or remain across [- 13 - BOOK M97 PAGE 399] a stream on the Property. Interior fences, screens or walls which are associated or connected with a Building or structure may be of such design, material and height as may be approved by the Architectural Committee.
8.10 Flashings and Roof Gutters. Flashings or roof gutters or other metal fittings on the exterior of Buildings shall be of wood or brick texture in those colors commonly referred to as earth tones.
8.11 Damage. Any structure which is destroyed or damaged, in whole or in part, by or as a result of any cause, must be rebuilt or restored with reasonable diligence, and/or debris and waste materials must be removed from the Subdivision Lot and the structure and/or Subdivision Lot restored to a safe and sightly condition.
8.12 Limitation on Driveway Access. Driveway access from Lowell Avenue to Subdivision Lots 1, 2, 3, 4, 5, 6 is specifically prohibited. Driveway access to Subdivision Lots 1, 2, and 3 is limited to the lower access easement. There shall be no access to Subdivision Lots 6 and 7 from any adjoining property and the roadway shown on the plat of this Subdivision shall not be extended across any portion of either Subdivision Lot 6 or 7 to provide access to or from any adjoining property.
9.1 Enforcement and Remedies: The obligations, provisions, covenants, restrictions and conditions contained in this Declaration or any Supplemental or Amended Declaration with respect to the Association or Subdivision Lots shall be enforceable by Declarant or by any Owner of a Subdivision Lot subject to this Declaration by a proceeding for a prohibitive or mandatory injunction. The obligations, provisions, covenants, restrictions and conditions contained in this Declaration or any Supplemental or Amended Declaration with respect to a person or entity or property of a person or entity other than the Association or Declarant shall be enforceable by Declarant or the Association by a proceeding for a prohibitive or mandatory injunction. If court proceedings are instituted in connection with the rights of enforcement and remedies provided in this Declaration, the prevailing party shall be entitled to recover its costs and expenses in connection therewith, including reasonable attorney's fees.
[- 14 - BOOK M97 PAGE 400]
9.2 Protection of Encumbrancer. No violation or breach of any provision, restriction, covenant or condition contained in this Declaration or any Supplemental or Amended Declaration and no action to enforce the same shall defeat, render invalid or impair the lien of any mortgage or trust deed taken in good faith and for value and perfected by recording prior to the time of recording of an instrument giving notice of such violation or breach or the title or interest of the holder thereof or the title acquired by any purchaser upon foreclosure of any such mortgage or trust deed. Any such purchaser shall, however, take subject to this Declaration or any Supplemental or Amended Declaration except only that violations or breaches which occur prior to such foreclosure shall not be deemed breaches or violations hereof with respect to such purchaser, his heirs, personal representatives, successors and assigns.
9.3 Limited Liability. Neither Declarant, the Association, the Board of Trustees of the Association, the Architectural Committee nor any member, agent or employee of any of the same shall be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice.
X. GENERAL PROVISIONS.
10.1 Duration of Declaration. Any provision, covenant, condition or restriction contained in this Declaration or any Supplemental or Amended Declaration which is subject to the common law rule sometimes referred to as the rule against perpetuities, shall continue and remain in full force and effect for the period of fifty years or until this Declaration is terminated as hereinafter provided, whichever first occurs. All other provisions, covenants, conditions and restrictions contained in this Declaration or in any Supplemental or Amended Declaration shall continue and remain in full force and effect until January 1, 2027 A.D., provided, however, that unless at least one year prior to said time of expiration, there is recorded an instrument directing the termination of this Declaration, executed by the Owners of not less than 2/3 of the Subdivision Lots then subject to this Declaration, said other provisions, covenants, conditions and restrictions shall continue automatically for an additional ten years and thereafter for successive periods of ten years unless, at least one year prior to the expiration of any such extended period of duration, this Declaration is terminated by recorded instrument directing termination signed by the Owners of not less than 2/3 of the Subdivision Lots then subject to this Declaration as aforesaid.
[- 15 - BOOK M97 PAGE 401]
10.2 Amendment or Revocation. At any time while any provision, covenant, condition or restriction contained in this Declaration or any Supplemental or Amended Declaration is in of a written instrument specifying the amendment or the repeal, executed by the Owners of not less than 2/3 of the Subdivision Lots then subject to this Declaration. No such amendment to repeal shall be effective with respect to the holder or successor or assign of the holder of a mortgage or trust deed recorded prior to the recording of the instrument specifying the amendment or repeal unless such holder executes said instrument.
10.3 Severability. Invalidity or unenforceability of any provision of this Declaration or of any Supplemental or Amended Declaration in whole or in part shall not affect the validity or enforceability of any other provision or valid and enforceable part of a provision of this Declaration.
10.4 Captions. The captions and headings in this instrument are for convenience only and shall not be considered in construing any provision, restriction, covenant or condition contained in this Declaration.
10.5 No Waiver. Failure to enforce any provision, restriction, covenant or condition in this Declaration or in any Supplemental or Amended Declaration shall not operate as a waiver of any such provision, restriction, covenant or condition or of any other provision, restriction, covenant or condition.
IN WITNESS WHEREOF, Joseph E. Bernolfo, III has executed this Declaration the day and year first above written.
JOSEPH E. BERNOLFO, III
STATE OF UTAH
COUNTY OF SALT LAKE
On the 11 day of July, 1977 personally appeared before me, Joseph E. Bernolfo, III, the above Declarant, who duly acknowledged to me that he executed [-16-BOOK M97 PAGE 402 ] the within and foregoing Declaration of Protective Covenants for the Northstar Subdivision.
My Commission Expires:
Notary Public Residing at:
[-17- BOOK M97 PAGE 403]
The real property referred to in Paragraph 2.3 of the Declaration of Protective Covenants For The Northstar Subdivision is more fully described as follows:
Blocks 31, 32, 33, 40 and 41 of Snyder's Addition to Park City; Park City, Utah, together with the following vacated streets and avenues: Crescent Street from Lowell Avenue Southwesterly to the center line of Quaking Asp Avenue; Halladay Street from Lowell Avenue Southwesterly to the center line of Quaking Asp Avenue; Shepherd Street from Lowell Avenue Southwesterly to the center section line of Section 16; the Easterly one-half of Quaking Asp Avenue from the center section line Northwesterly to the Northerly line of Crescent Street; Pacific Avenue from the center section line Northwesterly to the Northwesterly line of Crescent Street. All the above being more particularly described as follows: Beginning at a point South 89°53'05'' West along the center section line 2637.36 feet from the East Quarter Corner of Section 16, Township 2 South, Range 4 East, Salt Lake Base and Meridian, said point also being on the Westerly right of way of Lowell Avenue, running thence South 89°53'05'' West along said center section line 462.75 feet; thence North 35°59'00'' West 675.15 feet; thence North 54°01'00'' East 375.00 feet to a point on the Westerly right of way line of Lowell Avenue; thence South 35°59'00'' East along said right of way line 946.285 feet to the point of beginning. Together with an easement for access beginning at a point which is South 89°53'05'' West along the center of section line 2637.36 feet from the East Quarter Corner of Section 16, Township 2 South, Range 4 East, Salt Lake Base and Meridian and North 35°59' West along the Westerly right of way line of Lowell Avenue 946.285 feet; and running thence South 54°01' West 20.535 feet; thence North 32°15' West 85.00 feet; thence North 54°01' East 15.00 feet; thence South 35°59' East 84.82 feet to the point of beginning.
[-18- BOOK M97 PAGE 404]
DECLARATION OF PROTECTIVE COVENANTS
FOR THE NORTHSTAR SUBDIVISION
At the Annual Meeting of the Northstar Homeowners Association held on December 15, 1997, the Owners of the Subdivision Lots subject to the Declaration of Protective Covenants for the Northstar Subdivision, dated July 19, 1977, and recorded as Entry No. 139189 in Book M97 at Pages 387 to 404 of the official records of Summit County, Utah, amended said Declaration of Protective Covenants as follows.
Section 5.5 is repealed in its entirety.
Susan Truxes hereby certifies that she is the duly elected, qualified and acting Secretary of the Northstar Homeowners Association, a non-profit corporation duly organized and existing under the laws of the State of Utah, that the amendments contained in the preceding First Amendment to the Declaration of Protective Covenants for the Northstar Subdivision were adopted by the Owners of the Northstar Subdivision Lots at the Annual Meeting of the Northstar Homeowners Association held on December 15, 1997, by the unanimous vote of all nine Lot Owners in attendance thereat, as evidenced by the Minutes of said Annual Meeting and the written ratifications and approvals of said Minutes executed by the respective Owners, which Minutes and written ratifications and approvals are on file and made a part of the records of the Northstar Homeowners Association.
Dated: January 21, 1998
STATE OF UTAH
On this 21st day of January, 1998, personally appeared before me, SUSAN TRUXES, personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the above instrument, and acknowledged to me that she executed the same in her authorized capacity, and that she signed the same of her own free act and deed.
NORTHSTAR HOMEOWNERS ASSOCIATION
A NON-PROFIT CORPORATION