DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS
OF
Section Page
ARTICLE I
Section 1 Agencies. . . . . . . . . . . . . . . . .
. . . . 1
Section 2 Architectural Control Committee . . . . .
. . . . 2
Section 3 Association . . . . . . . . . . . . . . .
. . . . 2
Section 4 Common Area . . . . . . . . . . . . . . .
. . . . 2
Section 5 Declarant . . . . . . . . . . . . . . . .
. . . . 2
Section 6 Declaration . . . . . . . . . . . . . . .
. . . . 2
Section 7 First Mortgage . . . . . . . . . . . . . . . . . 2
Section 8 First Mortgagee . . . . . . . . . . . . .
. . . . 3
Section 9 Lot . . . . . . . . . . . . . . . . . . .
. . . . 3
Section 10 Member . . . . . . . . . . . . . . . . . . . . . 3
Section 11 Owner
. . . . . . . . . . . . . . . . . . . . . . 3
Section 12 Properties . . . . . . . . . . . . . . . . . . . 3
Section 13 Residence
. . . . . . . . . . . . . . . . . . . . 3
PROPERTY RIGHTS IN THE COMMON AREA
Section 1 Owners’ Easements of Enjoyment . . . . . . . . . 4
Section 2 Extent of Owners’ Easements . . . . . . .
. . . . 4
Section 3 Delegation of Use . . . . . . . . . . . .
. . . . 5
Section 4 Payment of Taxes or Insurance by
Mortgagees . . . 6
MEMBERSHIP AND VOTING RIGHTS
Section 1 Membership . . . . . . . . . . . . . . . . . . . 6
Section 2 Class of Membership . . . . . . . . . . .
. . . . 6
Section 1 Creation of the Lien and Personal
Obligation of Assessments . . . . . . . . . . .7
Section 2 Purpose of Assessments . . . . . . . . . . . . . 8
(i)
Section Page
Section 3 Maximum Annual Assessment . . . . . . . .
. . . 8
Section 4 Special Assessments . . . . . . . . . . .
. . . 9
Section 5 Notice and Quorum for Any Action
Authorized Under Sections 3 and 4 . . . . .
. 10
Section 6 Reconstruction Assessments . . . . . . . . . . 10
Section 7 Rate of Assessment . . . . . . . . . . . . . . 10
Section 8 Date of Commencement of Annual
Assessments . . . . . . . . . . . . . . . . . 11
Section 9 Effect of Nonpayment of Assessments;
Remedies of the Association . . . . . . . .
. 11
Section 10 Working
Capital Fund . . . . . . . . . . . .
. 12
Section 11 Subordination
of the Lien to Mortgages . . . . 12
Section 1 Composition of Committee . . . . . . . . . . . 13
Section 2 Review by Committee . . . . . . . . . . .
. . . 13
Section 3 Procedures . . . . . . . . . . . . . . . . . . 13
Section 4 Vote and Appeal . . . . . . . . . . . . .
. . . 14
Section 5 Records . . . . . . . . . . . . . . . . .
. . . 14
Section 6 Liability . . . . . . . . . . . . . . . .
. . . 14
Section 7 Variance
. . . . . . . . . . . . . . . . . . .
14
Section 8 Waivers . . . . . . . . . . . . . . . . .
. . . 15
INSURANCE
Section 1 Insurance on Common Areas . . . . . . . .
. . . 15
Section 2 Insurance on the Structures on Lots . . .
. . . 17
Section 3 General Provisions of Insurance
Policies . . . 18
Section 4 Deductibles . . . . . . . . . . . . . . .
. . . 18
Section 5 Insurance Trustee . . . . . . . . . . . .
. . . 19
Section 6 Association Insurance as Primary
Coverage
. . . . . . . . . . . . . . . . . .
19
Section 7 Acceptable Insurance Companies . . . . . . . . 19
Section 8 Insurance to be Maintained by Owners . . . . .
19
Section 9 Annual Review of Insurance Policies . . .
. . . 20
Section 1 Damage to Common Area . . . . . . . . . .
. . . 20
Section 2 Destruction of Improvements on Lot . . . . . .
20
(ii)
Section Page
PARTY WALLS
Section 1 Definition . . . . . . . . . . . . . . . . . . 21
Section 2 General Rules of Law to Apply . . . . . .
. . . 21
Section 3 Sharing of Repair and Maintenance . . . .
. . . 21
Section 4 Destruction by Fire or Other Casualty . .
. . . 21
Section 5 Weatherproofing . . . . . . . . . . . . .
. . . 22
Section 6 Right to Contribution Runs with Land . . . . .
22
Section 7 Arbitration . . . . . . . . . . . . . . .
. . . 22
EXTERIO[I]R MAINTENANCE
Section 1 General . . . . . . . . . . . . . . . . .
. . . 22
Section 2 Access Easement . . . . . . . . . . . . .
. . . 22
Section 3 Maintenance of Landscaping . . . . . . . . . . 23
Section 4 Owner’s Negligence . . . . . . . . . . . . . . .23
RESTRICTIONS
Section 1 General Plan . . . . . . . . . . . . . . . . . .23
Section 2 Restrictions Imposed . . . . . . . . . . . . . .23
Section 3 Use of Common Area . . . . . . . . . . . . . . .24
Section 4 Residential Use . . . . . . . . . . . . .
. . . .24
Section 5 Declarant’s Use . . . . . . . . . . . . .
. . . .24
Section 6 Household Pets . . . . . . . . . . . . . . . . .24
Section 7 Lots to be Maintained . . . . . . . . . .
. . . .25
Section 8 Temporary Structures . . . . . . . . . . . . . .25
Section 9 Miscellaneous Structures . . . . . . . . . . . .25
Section 10 Vehicular
Parking, Storage and Repairs . . . .
.26
Section 11 Nuisances
. . . . . . . . . . . . . . . . . . . .27
Section 12 Lots
Not be Subdivided . . . . . . . . . . .
. .27
Section 13 No
Hazardous Activities . . . . . . . . . . . . .27
Section 14 No
Annoying Light, Sounds or Odors . . . .
. . .27
Section 15 Garbage
and Refuse Disposal . . . . . . . . . . .28
Section 16 Leases . . . . . . . . . . . . . . . . . . . . .28
Section 17 Minor
Violations of Setback
Restrictions . . . . . . . . . . . . . . . . .28
Section 18 Rules
and Regulations . . . . . . . . . . . . . .28
Section 19 Management
Agreements and Other
Contracts . . . . . . . . . . . . . . . . .
. .29
(iii)
Section Page
FIRST MORTGAGEES
Section 1 Member and First Mortgagee Approval . . .
. . . 29
Section 2 Notice of Action . . . . . . . . . . . . . . .
31
Section 3 Audit . . . . . . . . . . . . . . . . . .
. . . 32
Section 1 Enforcement . . . . . . . . . . . . . . .
. . . 32
Section 2 Severability . . . . . . . . . . . . . . . . . 33
Section 3 Construction and Maintenance Easement . .
. . . 33
Section 4 Utilities . . . . . . . . . . . . . . . .
. . . 33
Section 5 Conflict of Provisions . . . . . . . . . . . . 33
Section 6 Annexation . . . . . . . . . . . . . . . . . . 33
Section 7 Condemnation . . . . . . . . . . . . . . . . . 34
Section 8 Duration, Revocation and Amendment . . . . . .
35
Section 9 Rights of Declarant Incident to
Construction . . . . . . . . . . . . . . . .
36
Section 10 Easement
for Encroachments . . . . . . . . .
. 36
Section 11 Registration
by Owner of Mailing
Address . . . . . . . . . . . . . . . . . .
. 36
Section 12 FHA/VA
Approval . . . . . . . . . . . . . . . .
36
Section 13 Dedication
of Common Areas . . . . . . . . .
. 36
Exhibit A Phase
I Legal Description
Exhibit B Phase
I Common Area Legal Description
Exhibit C Annexable
Area Legal Description
(iv)
DECLARATION
TOWN AND COUNTRY VILLAGE TOWNHOMES
THIS DECLARATION is
made and entered into this 21st day of September 1983, by
PULTE HOME CORPORATION, a Delaware corporation, hereinafter referred to as
“Declarant.”
WITNESSETH:
WHEREAS, Declarant is
the owner of that certain real property in the County of Douglas, State of
Colorado, which is described on Exhibit A attached hereto and incorporated
herein by this reference; and
WHEREAS, Declarant
desires to subject and place upon the above-described property certain
covenants, conditions, restric- tions, easements, reservations, rights-of-way,
obligations, liabilities and other charges set forth herein for the purpose of
protecting the value and desirability of said property and for the purpose of
furthering a plan for the improvement, sale and ownership of said property, to
the end that a harmonious and attractive development of said property may be
accomplished and the health, comfort, safety, convenience and general welfare
of the Declarant, its successors and assigns in said property, or any portion thereof,
shall be promoted and safeguarded.
NOW, THEREFORE, Declarant hereby declares that all of the properties described above shall be held, sold, and conveyed subject to the following covenants, conditions, restrictions, easements, rights-of-way, obligations, liabilities, charges and other provisions set forth herein, which are for the purpose of protecting the value and desirability of, and which shall run with, the above-described property and be binding on all parties having any right, title, or interest in the above-described property or any part thereof, their heirs, personal representa- tives, successors, and assigns, and shall inure to the benefit of each owner thereof.
DEFINITIONS
Section l. Agencies. “Agencies” shall mean and collectively refer
to, the Federal National Mortgage Association (FNMA), the Government National
Mortgage Association (GNMA), the federal Home Loan Mortgage Corporation
(FHLMC), the Department of Housing and Urban Development (HUD), the Veterans
Administration (VA) or any other governmental or quasi-governmental agency or
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any other public, quasi-public or private entity which performs (or may perform in the future) functions similar to those currently performed by such entities.
Section 2. “Architectural Control Committee” shall
mean and refer to the committee appointed by the Declarant or by the Board of
Directors of the Association, as more fully provided in Article V hereof.
Section 3. “Association” shall mean and refer to
Town and Country Village Homeowners Association, Inc., a Colorado non-profit
corporation, its successors and assigns.
The Association shall act by and through its Board of Directors and
officers.
Section 4.
“Common Area” shall mean all property (including the improvements
thereto) owned by the Association for the common use and enjoyment of the
Owners. The Common Area to be owned by
the Association at the time of the conveyance of the first Lot is described on
Exhibit B attached hereto and incor- porated herein by this reference.
Section 5. “Declarant” shall mean and refer to
Pulte
Home Corporation, a Delaware corporation, its successors and
assigns, if such successors or assigns should acquire more than one undeveloped
Lot from the Declarant for the purpose of development; provided, however, that
for the purposes of Article V, Section 1, and Article XII, Sections 4, 6, 8(b)
and 8(c) of this Declaration, no person or entity shall be considered a
Declarant under the aforesaid provisions, unless said person or entity shall
first be designated by Pulte Home Corporation, as a Declarant for said purposes
by a written instrument duly recorded in Douglas County, Colorado.
Section 6. “Declaration” shall mean and refer to
this Declaration of Covenants, Conditions and Restrictions, as the same may be
amended from time to time.
Section 7. “First Mortgage” shall mean and refer to
any unpaid and outstanding, mortgage, deed of trust or other security
instrument recorded in the records of the office of the Clerk and Recorder of
Douglas County, Colorado, having priority of records over all other recorded
liens except those governmental liens made superior by statute (such as general
ad valorem tax liens and special assessments).
“First Mortgage,” for purposes of Article IV, Section 12 and, with
respect to notice of cancel- lation or substantial modification of certain
insurance policies, to Article VI, Section 3 hereof, shall also mean and refer
to any executory land sales contract wherein the Administrator of Veterans Affairs,
an Officer of the United States of America is the seller, whether such contract
is recorded or not, and whether such contract is owned by the said
Administrator or has been
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assigned by the said Administrator and is owned by the Admin- istrator’s assignee, or a remote assignee, and the land records in the Office of the Clerk and Recorder of Douglas County, Colorado show the said Administrator as having the record title to the Lot.
Section 8. “First Mortgagee” shall mean and refer
to
any person named as a mortgagee or beneficiary under any First
Mortgage (including, for purposes of Article IV, Section 12 and, with respect
to notice of cancellation or substantial modifica- tion of certain insurance
policies, to Article VI, Section 3 hereof, the Administrator of Veterans
Affairs, an Officer of the United States of America, and his assigns under any
executory land sales contract wherein the said Administrator is identified as
the seller, whether such contract is recorded or not and the land records of
the Clerk and Recorder of Douglas County, Colorado show the said Administrator
as having the record title to the Lot), or any successor to the interest of any
such person under such First Mortgage.
Section 9. “Lot” shall mean and refer to any
separate numbered lot or plot of land shown upon any recorded subdivision map
of the Properties or any portion thereof, as the same may be amended from time
to time, with the exception of the Common Area and any public streets, but
together with all appurtenances and improvements now or hereafter thereon.
Section 10. “Member” shall mean and refer to each
Owner
of a Lot that is subject to assessment hereunder; membership in the Association shall be appurtenant to, and may not be separated from, ownership of a Lot.
Section 11. “Owner” shall mean and refer to the
record owner, whether one or more persons or entities, of fee simple title to
any Lot which is a part of the Properties, including contract sellers, but
excluding those having such interest merely as security for the performance of
an obligation.
Section 12. “Properties” shall mean and refer to
that certain real property described on Exhibit A hereto and such additions
thereto as may hereafter be brought within the juris- diction of the Association.
Section 13. “Residence” shall mean and refer to the
structure erected upon a Lot which is intended for use in accordance with
Article X, Section 4 hereof.
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Section 1.
Owner’s Easements of Enjoyment.
Subject to the provisions of Section 2 of this Article, every Owner
shall have a nonexclusive right and easement of enjoyment in and to the Common
Area and such easement shall be appurtenant to and shall pass with the title to
every Lot.
Section 2. Extent of Owners’ Easements. The rights and easements of enjoyment
created hereby shall be subject to the following:
(a) The right of the Association, in
accordance
with its Articles and Bylaws, to borrow money for the purpose of
improving the Common Area and, with written consent of the Members entitled to
vote two-thirds (2/3) of the votes of each class of membership, to mortgage
said property as security for any such loan; and
(b) The right of the Association to
take such
steps as are reasonably necessary to protect the Common Area
against foreclosure; and
(c) The right of the Association to
promulgate and publish rules and regulations which each Member shall strictly
comply with, including, but not limited to, the right of the Association to
establish reasonable charges and/or admission fees for the use of any
recreational facilities located on the Common Area; and
(d) The right of the Association,
as provided in
its Articles and Bylaws, to suspend the voting rights and the
right to the use of recreational facilities, if any, within the Common Area, of
a Member for any period during which any assess- ment against his Lot remains
unpaid and, for a period not to exceed sixty (60) days, for any infraction of
its published rules and regulations; and
(e) The right of the Association to
dedicate or transfer all or any part of the Common Area to any public agency,
authority, or utility for such purposes and subject to such conditions as may
be agreed to by the Members, provided that no such dedication or transfer shall
be effective unless first approved in writing by the Members entitled to vote
two-thirds (2/3) of the votes of each class of membership hereunder, and unless
written notice of the proposed agreement and action thereunder is sent to every
Member at least thirty (30) days in advance of any action taken. Notwithstanding the foregoing, the granting
of permits, licenses and easements for public utilities, roads and/or for other
purposes reasonably necessary or useful
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for the proper maintenance or operation of the Properties shall
not be deemed a transfer within the meaning of this Subsection (e); and
(f) The right of the Association,
through its
Board of Direc[c]tors, to enter into, make, perform or
enforce: contracts, leases, agreements,
licenses, easements and/or rights-of-way, for the use by Owners, other persons,
their family members, guests and invitees, of real property, and any facili-
ties or improvements thereto and thereon, for pedestrian and vehicular access,
ingress and egress to and from the Properties, or any portion thereof, for
vehicular parking, or for recrea- tional use and enjoyment; and/or contracts,
leases, licenses or other agreements for cable or satellite television service
to the Properties, or any portion thereof.
Any of such contracts, leases, licenses, agreements, easements and/or
rights-of-way, as provided for in this subsection (f), shall be upon such terms
and conditions as may be agreed to from time to time by the Board of Directors
of the Association, which may include provisions by which the Association
covenants and agrees that it shall pay part or all of the costs and expenses of
maintaining and repairing such real property, and the facilities and
improvements thereto and thereon, providing such cable or satellite television
service, or other amounts which the Board determines are reason- ably necessary
to secure any such contracts, leases, licenses, agreements, easements and/or
rights-of-way, and any such costs shall be treated by the Association as common
expenses pursuant to Article IV hereof.
(g) The right of the Association to
assign the
right to use certain parking spaces located upon the Common Area to the Owner(s) of a particular Lot; provided, however, that any such assignment shall be permanent unless individual Owners of Lots agree to exchange such assigned parking spaces. Any such assignments shall appear in the books and records of the Associa- tion, but such assignments need not be evidenced by the recorda- tion of a deed or similar instrument of conveyance. Notwith- standing the foregoing, the Owner(s) of each Lot shall at all times have the right to utilize at least one (1) garage or parking space upon the Properties.
(h) The right of the Association to
close or limit the use of the Common Area while maintaining, repairing and
making replacements in the Common Area.
Section 3. Delegation of Use. Any Owner may delegate
his right of enjoyment to the Common Area and facilities to the
members of his family, his tenants, or contract purchasers who reside on his
Lot.
-5-
Section 4. Payment of Taxes or Insurance by
Mortgagees. First Mortgagees of
Lots shall have the right, jointly or singly, to pay taxes or other charges or
assessments which are in default and which may or have become a lien against
the Common Area and may pay overdue premiums on hazard insurance policies or
secure new hazard insurance coverage on the lapse of a policy for the Common
Area, or the Lot which secures said First Mortgage if the policy therefor is
held by the Association, and any First Mortgagees making any such payment shall
be owed immediate reimbursement therefor from the Association.
Section 1. Membership. Every Owner of a Lot which is subject to
assessment hereunder shall be a Member of the Associa- tion. Membership shall be appurtenant to and may
not be separ- ated from ownership of any Lot.
Section 2. Class of Membership. The Association shall have two classes of
voting membership.
Class A. Class A Members shall be all Owners, with
the exception of Declarant, and shall be entitled to one vote for each Lot
owned. When more than one person holds
an interest in any Lot, all such persons shall be Members, and the vote for
such Lot shall be exercised as they determine, but in no event shall more than
one vote be cast with respect to any such Lot.
Class B. The Class B Member(s) shall be Declarant and
shall be entitled to three (3) votes for each Lot owned which is neither
leased, rented, nor otherwise occupied as a residence. Leasing, renting, or allowing entry for
residential occupancy shall terminate the Declarant’s weighted voting advantage
in relation to any Lot so leased, rented, or occupied as a resi- dence, and
will limit Declarant in relation to any such Lots to the same voting rights as
a Class A Member. The C[l]ass B
membership shall cease and be converted to Class A membership on the happening
of any of the following events, whichever occurs earliest:
(a) when the total votes
outstanding in the Class
A membership equal the total votes outstanding in the Class B
membership; provided, however, that if within one hundred twenty (120) days of the
occurrence of this event, additional real property shall be annexed to this
Declaration pursuant to Article XII, Section 6 hereof, such that after such
annexation there would be more votes outstanding in the Class B membership than
in the Class A membership, then the Class B membership shall be deemed not to
cease and not [be] have been converted to Class A membership; or
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(b) on that date which is Five (5)
years after
the date of recording of this Declaration in the office of the
Clerk and Recorder of Douglas County, Colorado; or
(c) in the event that there is
neither any new
unit construction initiated nor evidence of any continuing
construction, within the Properties, for a continuous period of six (6) months;
or
(d) On a date certain set forth in
written notice from the Declarant to the Secretary of the Association of its
intent to terminate its Class B voting rights as of such date; provided,
however, that in the event there is more than one Declarant, such notice must
be signed by all such Declarants.
Section 1. Creation of the Lien and Personal
Obligation
of Assessments. Each Owner of any Lot, including Declarant,
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 to the Association: (1) annual assessments or charges, (2)
special assessments and (3) reconstruction assessments, such assessments to be
established and collected as hereinafter provided. The annual, special and reconstruction assessments, together with
interest, late charges, costs, and reasonable attorney’s fees, shall be a
charge on the land and shall be a continuing lien upon the Lot against which
each such assessment is made. The lien
may be enforced by foreclosure of the defaulting Owner’s Lot by the Association
in like manner as a mortgage on real property.
In any such foreclosure the Owner shall be required to pay the costs and
expenses of such proceedings, including reasonable attorney’s fees. The Board of Directors or managing agent of
the Associa- tion may prepare a written notice setting forth the amount of such
unpaid indebtedness, the name of the Owner of the Lot and a description of the
Lot. Such a notice shall be signed by
one of the Board of Directors or by the managing agent of the Associa- tion and
may be recorded in the office of the Clerk and Recorder of the County of Douglas,
Colorado. The lien for each unpaid assessment
attaches to each Lot at the beginning of each assess- ment period and shall
continue to be a lien against such Lot until paid. The costs and expenses for filing any notice of lien shall be
added to the assessment for the Lot against which it is filed and collected as
part and parcel thereof. Each
assessment, together with interest, late charges, costs, and reasonable
attorney’s fees, shall also be the personal obligation of the person who was
the Owner of such Lot at the time when the assessment became due. The personal obligation for delinquent
assessments shall not pass to such Owner’s successors in title unless expressly
assumed by them. The Association’s lien
on a Lot
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for assessment shall be superior to any homestead exemption now or hereafter provided by the laws of the State of Colorado or any exemption now or hereafter provided by the laws of the United States. The acceptance of a deed to land subject to this Declaration shall constitute a waiver of the homestead and any other exemption as against said assessment lien.
Section 2. Purpose of Assessments. The assessments
levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Properties, and for all of those purposes and activities which may be required of the Association or which the Association may be empowered to pursue pursuant to this Declaration, the Articles of Incorporation or Bylaws of the Association, including without limitation the improvement and maintenance of the Common Area and any facilities located thereon.
Section 3. Maximum Annual Assessment.
(a) Until commencement of the
second annual assessment period, the maximum annual assessment shall be Nine
Hundred Dollars ($900.00) for each Lot upon which there exists a Residence
containing less than 1200 square feet of finished living space and One Thousand
Thirty-Two Dollars ($1,032.00) for each Lot upon which there exists a Residence
containing at least 1200 square feet of finished living space.
(b) Effective with commencement of
the second and each subsequent annual assessment period, the maximum annual
assessment against each Lot shall be increased effective each annual assessment
year in conformance with the rise, if any, of the Consumer Price Index
published by the U.S. Department of Labor, Washington, D.C., for All Items and
Major Group Figures for All Urban Consumers (1967 = 100), for the one (1) year
period ending with the preceding month of July; this annual increase in the
maximum annual assessment shall occur automatically upon the commencement of
each annual assessment year without the necessity of any action being taken
with respect thereto by the Associa- tion.
In the event the aforesaid Consumer Price Index is not published, for
whatever reason, then the increase in the maximum annual assessment, as
provided herein, shall be calculated by using a substantially comparable index
designated by the Board of Directors of the Association.
(c) Effective with commencement of
the second and each subsequent annual assessment period, the maximum annual
assessment may be increased above that established by the Consumer Price Index
formula by a vote of the Members for the next succeeding annual assessment year
and at the end of each such annual assessment period, for each succeeding
annual assessment year, provided that any such increase shall have the
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assent of two-thirds (2/3) of each class of Members who are voting in person or by proxy, at a meeting duly called for this purpose, written notice of which shall be sent to all Members not less than 30 days nor more than 60 days in advance of such meeting setting forth the purpose therefor and provided, further, that any such increase shall maintain the principle of staggered assessment rates as contained in subsection (a) of this Section 3.
(d) Subject to the terms and
provisions of Section
7 of this Article IV relating to the obligation of the Declarant to pay to the Association amounts sufficient to meet certain shortfalls in assessments, the Board of directors of the Associa- tion may, at any time and from time to time, after consideration of the projected maintenance costs and other financial needs of the Association, fix the actual assessment against each Lot in an amount less than the maximum; provided, however, that written notice of any change in the amount of the actual assessment (whether to an amount less than or equal to the maximum) shall be sent to every Owner at least thirty (30) days in advance of the effective date of such change; provided, further, however, that any such decrease in assessments shall maintain the principle of staggered assessment rates as contained in subsection (a) of this Section 3.
(e) The limitations contained in
this Section 3
shall not apply to any change in the maximum, actual and basis of the assessments undertaken as an incident to a merger or consol- idation in which the Association is authorized to participate under its Articles of Incorporation.
(f) The Association shall maintain an
adequate reserve fund out of the annual assessments for the maintenance, repair
and replacement of those elements of the Common Area that must be maintained,
repaired or replaced on a periodic basis.
Section 4. Special Assessments. In addition to the
annual and reconstruction assessments authorized in this Article
IV, the Association may levy, in any assessment year, a special assessment
applicable to that year only, for the purpose of defraying, in whole or in
part, the cost of any construction, reconstruction, repair, or replacement of a
capital improvement upon the Common Area, including fixtures and personal
property related thereto, or for the funding of any operating deficit incurred
by the Association. Any such assessment
shall have the assent of two-thirds (2/3) of the votes of each class of Members
who are voting in person or by proxy at a meeting duly called for this purpose,
and shall be set against each Lot in accordance with the principle contained in
Section 3(a) of this Declaration, subject to the rate of assessment on Lots
owned by Declarant as more fully provided in Section 7 of this Article IV.
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Section 5. Notice and Quorum for Any Action
Authorized Under Sections 3 and 4. Written notice of any meeting called for the purpose of taking any
action authorized under Sections 3 or 4 of this Article shall be sent to all
Members not less than 30 days or more than 60 days in advance of the
meeting. At the first such meeting
called, the presence of Members or of proxies entitled to cast sixty percent
(60%) of all the votes of each class of membership shall constitute a
quorum. If the required quorum is not
present, another meeting may be called subject to the same notice requirement,
and the required quorum at the subsequent meeting shall be one-half (1/2) of
the required quorum at the preceding meeting.
No such subsequent meeting shall be held more than 60 days following the
preceding meeting.
Section 6. Reconstruction Assessments. In addition to
the annual and special assessments authorized in this Article
IV, the Association may levy, in any assessment year during which insurance
proceeds are insufficient to repair or reconstruct any damaged or destroyed
structures located on Lots or improvements on the Common Area, which are covered
by a policy of property insurance carried by the Association, reconstruction
assessments for the purpose of repair or reconstruction of such damaged or
destroyed structures. All such
reconstruction assessments shall be equal to the amount by which the cost of
repair or reconstruc- tion of such structure(s) or improvements exceeds the sum
of the insurance proceeds awarded for the damage or destruction thereof and
shall be set against each Lot in accordance with the princi- ple contained in
Section 3(a) of this Article IV. Such
recon- struction assessments shall be due and payable as provided by resolution
of the Board of Directors, but not sooner than thirty (30) days after written
notice hereof; provided, however, that, in appropriate circumstances, the
Association may proceed directly against any Owner pursuant to Article IX,
Section 4 hereof for any such amount.
Section 7. Rate of Assessment. Annual, special and reconstruction
assessments shall be fixed, in accordance with the principle contained in
Section 3(a) of this Article IV, at rates sufficient to meet the expected needs
of the Association. Notwithstanding
anything to the contrary contained in this Declaration, however, the rate of
annual and special assessments set for the Lots owned by Declarant which are
either undeveloped or upon which there exists a Residence which is neither
leased, rented, nor otherwise residentially occupied, shall be fixed at
one-quarter (1/4) of the assessment rate for the other Lots upon which
Residences of comparable size to the Residence now exist- ing, or contemplated
in the future to be constructed; provided, however, that at the time any Lot
owned by Declarant is leased, rented, or residentially occupied, that Lot shall
be assessed at the same rate of assessment as privately owned Lots upon which
Residences of comparable size to the Residence now existing, or contemplated in
the future to be constructed. In the
even that, prior to the termination of the Class B membership, assessments
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for annual common expenses, exclusive of those amounts held by the Association for an adequate reserve fund and for the working capital fund, fail to equal or exceed the actual expenses incurred by the Association during any particular annual assess- ment period because of such partial Declarant assessment, then Declarant shall pay a sufficient amount, up to the amount of full parity on such assessments, to the Association to meet any such shortfall so long as: (a) written notice must be given by the Association to the Declarant within sixty (60) days following the termination of the then-current fiscal year of the Association at the time of the termination of the Class B membership, but in no event more than one (1) year following the termination of such Class B membership, and (b) Declarant shall have no obligation for any such shortfall caused by expenditures for capital improvements or by any decrease in assessments, including without limitation the levying of any assessment in an amount less than the maximum for any annual assessment period, unless the same has previously been approved in writing by Declarant. In the event there is more than one Declarant, then, subject to the conditions hereinabove stated, each such Declarant shall pay a pro rata share of the aforesaid shortfall, such pro rata share to be based on the total amount of assessments due from each Declarant compared to the total amount of assessments due from all Declarants, during the applicable annual assessment period.
Section 8. Date of Commencement of Annual
Assessments. The initial annual
assessment shall commence on the first day of the month following conveyance of
the Common Area by Declarant to the Association, and the second and each
subsequent annual assessment period shall correspond with the fiscal year of
the Association. The annual assessments
shall be made due and payable in twelve monthly installments per annum on such
dates as determined by the Board, provided that the first annual assess- ment
shall be adjusted according to the number of months in the first annual
assessment year. Any Owner purchasing a
Lot between installment due dates shall pay a pro rata share of the last
installment due.
Section 9. Effect of Nonpayment of Assessments;
Remedies of the Association. Any assessment not paid
within ten (10) days after the due date thereof shall bear interest from the
due date at the rate of eighteen percent (18%) per annum, or at such lesser
rate as may be set from time to time by the Associa- tion, and the Association
may assess a monthly late charge thereon.
The Association may bring an action at law against the Owner personally
obligated to pay the same, or foreclose the lien against such Owner’s Lot, and
in the event a judgment is obtained, such judgment shall include interest on
the assessment and a reasonable attorney’s fee to be fixed by the court,
together with the costs of the action, and may include late charges, as above
provided. No Owner may waive or
otherwise escape liability for the assessments provided for herein by non- use
of the Common Area or abandonment of his Lot.
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Section 10. Working Capital Fund. The Association or Declarant shall require
the first Owner of any Lot who purchases that Lot from Declarant to make a
payment to the Association in an amount equal to the greater of One Hundred
Fifty Dollars ($150.00) or two (2) times the monthly installment of the maximum
annual assessment (one-sixth of the maximum annual assessment) against that Lot
in effect at the time of conveyance of the Lot, which sum shall be held by the
Association as a working capital fund.
The Association shall have no obligation to pay interest on said funds
to any Owner. Said working capital fund
shall be collected and transferred to the Association at the time of closing of
the sale by Declarant of each Lot, as aforesaid, and all such funds shall be
maintained in a segregated account for the use and benefit of the Association
as it deems desirable, including but not limited to the use to insure that the
Board of Directors of the Association will have cash available to meet
unforeseen expenditures, or to acquire additional equipment or services deemed
necessary or desirable by the Board.
Such payment to the working capital fund shall not relieve an Owner from
making the regular payment of assessments as the same become due. Upon the transfer of his Lot, an Owner shall
be entitled to a credit from his transferee for the unused portion of the
aforesaid payment to working capital fund.
Section 11. Subordination of the Lien to Mortgages.
The lien of the assessments provided for herein, including
without limitation any fees, costs, late charges or interest which may be
levied by the Association in connection with unpaid assessments, shall be
subordinate to the lien of any First Mortgage.
Sale or transfer of any Lot shall not affect the liens for said
assessment charges except that sale or transfer of any Lot pursuant to
foreclosure of any such First Mortgage, or any proceeding in lieu thereof,
shall extinguish the lien of such assessment charges which became due prior to
any such sale or transfer, or foreclosure or any proceeding in lieu thereof;
provided, however, that any such delinquent assessment charges, including
interest, late charges, costs and reasonable attorney’s fees, which are
extinguished as provided herein, may be realloc- ated and assessed to all Lots
as a common expense. No such sale,
transfer, foreclosure, or any proceeding in lieu thereof, shall relieve such
Lot from liability for any assessment charges thereafter becoming due, nor from
the lien thereof; provided, however, that in the event of foreclosure of a
First Mortgage or the taking of a deed in lieu thereof, such First Mortgagee
shall not be liable for unpaid assessments or other charges which accrue prior
to the acquisition of title to the Lot in question by such First Mortgagee.
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Section 1. Composition of Committee. The Architectural
Control Committee shall consist of three (3) or more persons appointed by the Board of Directors of the Association; provided, however, that until all Lots have been conveyed to the first Owner thereof (other than Declarant), Declarant shall appoint and/or remove the members of the Architectural Control Committee as it, in its sole discretion, deems necessary. A majority of the Committee may designate a representative to act for it.
Section 2. Review by Committee. No structure or any attachment to an
existing structure, whether a residence, any building, a tennis court, a
swimming pool, fences, walls, canopies, awnings, roofs, exterior lighting
facilities, athletic facility, or other similar improvements or attachments,
shall be constructed, erected, placed or installed upon the Properties, no
alteration of the exterior of a residence or other structure shall be made, and
no change in the final grade, nor the instal- lation of or any change in any
landscaping, shall be performed, unless complete plans and specifications
therefor (said plans and specifications to show exterior design, height,
materials, color, location of the structure or addition to the structure,
plotted horizontally and vertically, location and size of driveways, general
plan of landscaping, fencing, walls, windbreaks and grading plan, as well as such
other materials and information as may be required by the Committee) shall have
been first submitted to and approved in writing by the Architectural Control
Com- mittee. The Architectural Control
Committee shall exercise its reasonable judgment to the end that all
attachments, improve- ments, construction, landscaping and alterations to
residences, other structures, and property, within the Properties, conform to
and harmonize with the existing surroundings, residences, landscaping and
structures. In its review of such
plans, specifications and other materials and information, the Archi- tectural
Control Committee may require that the applicant(s) reimburse the Committee for
the actual expenses incurred by the Committee in the review and approval process. Such amounts, if any, shall be levied as
part of the common expense assessment against the Lot for which the request for
Architectural Control Committee approval was made and, as such, shall be
subject to the Association’s lien for assessments and subject to all other
rights of the Association for the collection thereof, as more fully provided in
this Declaration.
Section 3. Procedures. The Architectural Control Committee shall
approve or disapprove all requests for archi- tectural control approval within
forty-five (45) days after the complete submission of all plans,
specifications, and other materials and information which the Committee may
require in
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conjunction therewith. In the event that the Architectural Control Committee fails to approve or disapprove any request within forty-five (45) days after the complete submission of all plans, specifications, materials and other information with respect thereto, approval shall not be required and this Article shall be deemed to have been fully complied with.
Section 4. Vote and Appeal. A majority vote of the Architectural Control
Committee is required to approve a request for architectural approval pursuant
to this Article, unless the Committee has designated a representative to act
for it, in which case the decision of such representative shall control. In the event a representative acting on
behalf of the Architectural Control Committee denies a request for
architectural approval, the applicant(s) thereof shall have the right to an appeal
of such denial to the full Committee, upon a request therefor submitted to the
Committee within thirty (30) days after such applicant(s) receive notice of the
denial of their architectural application from said representative. In the event an applica- tion for
architectural approval is denied by the Architectural Control Committee,
whether pursuant to an original request for approval or on appeal from a
decision of a representative of the Committee, the applicant(s) therefor shall
have the right of appeal to the Board of Directors of the Association, if a
written request for a hearing on an appeal of the same shall be submitted to
the Board of Directors of the Association within thirty (30) days after the
applicant(s) for such architectural approval receive notice of the Committee’s
denial of their application.
Section 5. Records. The Architectural Control Com-
mittee shall maintain written records of all applications submitted to it and all actions taken by it thereon, and such records shall be available to Members for inspection at reason- able hours of the business day.
Section 6. Liability. The Architectural Control
Committee and the members thereof, as well as any representative
of the Committee designated to act on its behalf, shall not be liable in
damages to any person submitting requests for approval or to any Owner, by
reason of any action, failure to act, approval, disapproval, or failure to
approve or disapprove in regard to any matter within its jurisdiction
hereunder.
Section 7. Variance. The Architectural Control
Committee may grant reasonable variances or adjustments from any
conditions and restrictions imposed by this Article or Article X hereof, in
order to overcome practical difficulties and prevent unnecessary hardships
arising by reason of the application of the conditions and restrictions
contained in this Article or Article X hereof.
Such variances or adjustments shall be granted only in case the granting
thereof shall not be materially detrimental or
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injurious to the other property or improvements in the neighbor- hood and shall not militate against the general intent and purpose hereof.
Section 8. Waivers. The approval or consent of the Architectural
Control Committee, any representative thereof, or the Board of Directors of the
Association, to any application for architectural approval shall not be deemed
to constitute a waiver of any right to withhold or deny approval or consent by
the Committee, any representative thereof, or said Board of Directors, as to any
application or other matters whatsoever subsequently or additionally submitted
for approval or consent hereunder.
INSURANCE
Section 1. Insurance on Common Area. The Association shall maintain insurance
covering all insurable improvements located or constructed upon the Common
Area. The Association shall maintain
the following types of insurance, to the extent that such insurance is
reasonably available, considering the availability, cost and risk coverage
provided by such insurance, and the cost of said coverage shall be paid by the
Association as a common expense.
Notwithstanding any of the specific insurance requirements specified in
this Article VI, the Association may also consider in determining the types and
amount of insurance it needs to obtain, the then-existing requirements of HUD,
VA, FNMA, and FHLMC with respect to their insurance, guaranty, or purchase of
First Mortgages secured by Lots.
(a) A policy of property insurance
coverage all insurable improvements located on the Common Area, except for
land, foundation, excavation and other matters normally excluded from coverage,
in an amount not less than necessary to comply with any co-insurance percentage
stipulated in the insurance policy.
Further, said policy shall contain a “Replacement Cost Endorsement”
providing that any claim will be settled on a full replacement cost basis
without deduction for depreciation, and include an “Inflation Guard
Endorsement” and an “Agreed Amount Endorsement.” The Association may also purchase a “Demolition Endorsement,” an
“Increased Cost of Construction Endorsement,” a “Contingent Liability from
Operation of Building Laws Endorse- ment,” a “Vacancy Permit Endorsement” or
the equivalent, and/or coverage on personal property owned by the Association
including fixtures and building service equipment, furnishings and
supplies. Such insurance as maintained
by the Association pursuant to this subsection shall afford protection against
at least the following:
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(1) loss or damage by
fire and other perils normally covered by the standard extended coverage
endorsement; and
(2) such other risks
as shall customarily be covered with respect to projects similar in construc-
tion, location and use including all perils normally
covered by the standard “all risk” endorsement, where such is
available.
(b) A comprehensive policy of
public liability insurance covering all of the Common Area, insuring the
Associa- tion in an amount not less than $1,000,000.00 covering bodily injury,
including death to persons, personal injury and property damage liability
arising out of a single occurrence.
Such coverage shall include, without limitation, legal liability of the
insureds for property damage, bodily injuries and deaths of persons in connection
with the operation, maintenance or use of the Common Area, legal liability
arising out of lawsuits related to employment contracts of the Association, and
protection against liability for non-owned and hired automobiles; such coverage
may also include, if applicable, comprehensive automo- bile liability
insurance, garagekeeper’s liability, liability for property of others, host
liquor liability, water damage liabi- lity, contractual liability, workmen’s
compensation insurance for employees of the Association, and such other risks
as shall customarily be required by private institutional mortgage investors
with respect to projects similar in construction, location and use.
(c) A policy providing
comprehensive fidelity coverage or fidelity bonds to protect against dishonest
acts on the part of officers, directors, trustees and employees of the
Association and all others who handle or are responsible for handling funds of
the Association, in an amount at least equal to the estimated maximum of funds,
including maintenance reserves in the custody of the Association at any given
time; provided, however, that such fidelity coverage or fidelity bonds shall
not be in an amount less than the greater of three (3) months aggregate
assessments on all Lots, plus such reserve funds, or one hundred and fifty
percent (150%) of the Association’s estimated annual operating expenses and
reserves. Such fidelity coverage or
bonds shall meet the following requirements:
(1) all such fidelity
coverage or bonds shall name the Association as an obligee;
(2) such fidelity
coverage or bonds shall contain waivers of any defense based upon the exclusion
of persons who serve without compensation from any definition of
“employee” or similar expression.
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In the event the Association has delegated some or all of its
responsibility for the handling of funds to a managing agent, the Association
may require the managing agent to purchase at its own expense, a policy of
fidelity insurance or bonds which fully complies with the provisions of this
subparagraph (c).
(d) If the Common Area, or any
portion thereof, is located within an area identified by the Federal Emergency
Management Agency as having special flood hazards, and flood insurance coverage
on the Common Area has been made available under the National Flood Insurance
Program, then such a policy of flood insurance on the Common Area in an amount
at least equal to the lesser of:
(1) the maximum
coverage available under the National Flood Insurance Program for all buildings
and
other insurable property located within a designated
flood hazard area; or
(2) one hundred
percent (100%) of current replacement cost of all buildings and other insurable
property located within a designated flood hazard
area.
(e) In addition, the Association
may obtain
insurance against such other risks of a similar or dissimilar nature as it shall deem appropriate, to the extent that such coverage is reasonably available, including but not limited to personal liability insurance to protect directors and officers of the Association from personal liability in relation to their duties and responsibilities in acting as directors and officers on behalf of the Association and, if appropriate, coverage for loss or damage resulting from steam boiler equipment or air conditioning equipment accidents in an amount not less than $100,000.00 per accident per location or such greater amount as may be deemed prudent by the Association based on the nature of the property.
Section 2. Insurance on the Structures on Lots. The
Board of Directors of the Association or its agent shall obtain
and maintain, to the extent that such insurance is reasonably available,
considering the availability, cost and risk coverage provided by such
insurance, a policy of property insurance covering the structure(s) located on
each Lot, except for land, foundation, excavation and other items normally
excluded from coverage, with an amount not less than that necessary to comply
with any co-insurance percentage stipulated in the insurance policy. Further, said policy shall contain a
“Replacement Cost Endorsement” providing that any claim will be settled on a
full replacement cost basis without deduction for depreciation, and
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including an “Inflation Guard Endorsement” and an “Agreed Amount
Endorsement.” The Association may also
purchase a “Demolition Endorsement,” an “Increased Cost of Construction
Endorsement,” a “Contingent Liability from Operation of Building Laws Endorse-
ment,” and/or a “Vacancy Permit Endorsement” or the equivalent. Such insurance as maintained by the
Association pursuant to this section shall afford protection against at least
the following:
(a) loss or damage by fire and
other perils
normally covered by the standard extended coverage endorsement; and
(b) such other risks as shall
customarily be
covered with respect to projects similar in construction,
location and use, including all perils normally covered by the standard “all
risk” endorsement, where such is available.
Section 3. General Provisions of Insurance Policies.
All policies of insurance carried by the Association shall be
carried in blanket policy form naming the Association as insured, or its
designee as trustee and attorney-in-fact for all Owners, and each Owner shall
be an insured person under such policies with respect to liability arising out
of any Owner’s membership in the Association.
The policy or policies shall contain a standard non-contributory First
Mortgagee’s clause in favor of each First Mortgagee and a provision that it
cannot be cancelled or materially altered by either the insured or the
insurance company until thirty (30) days’ prior written notice thereof is given
to the insured and each First Mortgagee, insurer or guarantor of a First
Mortgage on a Lot. The Association
shall furnish a certified copy or duplicate original of such policy or renewal
thereof, with proof of premium payment and a certificate identifying the
interest of the Owner in question, to any party in interest, including First
Mortgagees of Lots, upon request. Any
such Owner’s policy shall also contain waivers of subroga- tion. All policies shall contain waivers of any
defense based on invalidity arising from any acts or neglect of an Owner where
such Owner is not under the control of the Association.
Section 4. Deductibles. No policy of insurance of
which the Association or its designee is the beneficiary shall
include a deductible clause in an amount greater than $500.00 or 1% of the face
amount of the policy. Any loss falling
within the deductible portion of such policy shall be borne by the person or
entity who is responsible for the repair and maintenance of the property which
is damaged or destroyed. In the event
of a joint duty of repair and maintenance of the damaged or destroyed property,
then the deductible shall be borne by the Association. Notwithstanding the foregoing, after notice
and hearing, the Association may determine that a loss, either in the form of a
deductible to be paid by the Association or an uninsured loss,
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resulted from the act or negligence of an Owner. Upon said determination by the Association,
any such loss or portion thereof may be assessed to the Owner in question and
the Associa- tion may collect the amount from said Owner in the same manner as
any annual assessment.
Section 5. Insurance Trustee. The Association may authorize a
representative to act for it, including any trustee or successor thereto, who
shall have exclusive authority to negotiate losses under any policy providing
property or liability insurance. Such
insurance trustee shall act as attorney-in-fact for the purpose of purchasing
and maintaining insurance, includ- ing:
the collection and appropriate disposition of the proceeds thereof; the
negotiation of losses and execution of releases of liability; the execution of
all documents; and the performance of all other acts necessary to accomplish
such purpose. Said party may also
receive, hold or otherwise properly dispose of any proceeds of insurance in
trust for Owners and their First Mortgagees as their interest may appear.
Section 6. Association Insurance as Primary Coverage.
If at the time of any loss under any policy which is in the name
of the Association, there is other insurance in the name of any Owner and such
Owner’s policy covers the same property or loss, or any portion thereof, which
is covered by such Association policy, such Association policy shall be primary
insurance not contributing with any of such other insurance. An Owner shall be liable to the Association
for the amount of any diminution of insurance proceeds to the Association as a
result of policies of insurance of an Owner, and the Association may collect
the amount from said Owner in the same manner as any annual assessment. Any such Owner’s policy shall also contain
waivers of subrogation.
Section 7. Acceptable Insurance Companies. Each hazard insurance policy purchased by
the Association must be written by a hazard insurance carrier which has a
current rating by Best’s Insurance Reports of B/VI or better, or a financial
rating of Class V provided it has a general policy holder’s rating of at least
A, and is authorized by law to do business in the State of Colorado. The Association shall not obtain any policy
where (a) under the terms of the insurance company’s charter, bylaws, or
policy, contributions or assessments may be made against the mortgagor or
mortgagee’s designee or (b) under the terms of the carrier’s charter, bylaws,
or policy, loss payments are contin- gent upon action by the carrier’s Board of
Directors, policy holders or members, or (c) the policy includes any limiting
clauses (other than insurance conditions) which could prevent mortgagees or any
Owner from collecting insurance proceeds.
Section 8. Insurance to be Maintained by Owners.
Insurance coverage on the furnishings and other items of
personal
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property belonging to an Owner shall be the responsibility of the Owner thereof. Owners shall also be responsible for obtaining such policies of title insurance related to any sale of a Lot other than the purchase by the initial Owner from the Declarant.
Section 9. Annual Review of Insurance Policies. All insurance policies carried by the
Association shall be reviewed at least annually by the Board of Directors of
the Association to ascertain that the coverage provided by such policies
adequately covers those risks insured by the Association. Prior to obtain- ing any policy of fire
insurance or renewal thereof, the Board of Directors or the managing agent of
the Association may obtain a written appraisal from a duly qualified real
estate or insurance appraiser, or other person knowledgeable as to replacement
costs, which appraiser shall reasonably estimate the full replacement value of
the improvements to the insured for the purpose of determining the amount of
insurance required pursuant to the provisions of this Article. Any First Mortgagee of a Lot shall be
furnished with a copy of such appraisal upon request.
DAMAGE OR DESTRUCTION
Section 1. Damage to Common Area. In the event of
damage or destruction to all or a portion of the Common Area due to fire or other adversity or disaster, the insurance proceeds, if sufficient to reconstruct or repair the damage, shall be applied by the Association to such reconstruction and repair. If the insurance proceeds with respect to such Common Area damage or destruction are insufficient to repair an[d] reconstruct the damaged or destroyed Common Area, the Association shall levy a reconstruction assessment in the aggregate amount of such insuf- ficiency pursuant to Article IV, Section 6 hereof and shall proceed to make such repairs or reconstruction, unless the Owners and First Mortgagees of Lots agree not to repair and reconstruct such damage, in accordance with the terms and provisions of Article XI hereof. No distributions of insurance proceeds shall be made unless made jointly payable to the Owners and First Mortgagees of their respective Lots, if any. The reconstruction assessment provided for herein shall be a debt of each Owner and a lien on his Lot and the improvements thereon, and may be enforced and collected in the same manner as any assessment lien provided for in this Declaration.
Section 2. Destruction of Improvements on Lot. In the event of damage or destruction to any
structure located on a Lot due to fire or other adversity or disaster, the
insurance
proceeds shall be adjusted with the Association and paid or
payable to the Association as trustee for the Owners, but to be held by the
Association in trust for Owners and First Mortgag[a]es as their interests may
appear. “Repair and reconstruction” of
any
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structure, as used in this Section 2, shall mean restoring the
improvements to substantially the same condition in which they existed prior to
such damage or destruction, with each such structure having the same boundaries
as before.
(a) If such insurance proceeds are
sufficient to repair or reconstruct any damaged or destroyed structure, the
Association shall promptly authorize the necessary repair and reconstruction
work, and the insurance proceeds shall be applied by the Association to defray
the cost thereof.
(b) If such insurance proceeds are
insufficient to repair or reconstruct any damaged or destroyed structure, such
damage or destruction shall be promptly repaired and recon- structed by the
Association, using the insurance proceeds and the proceeds of a reconstruction
assessment levied as provided in Article IV, Section 6 hereof. The reconstruction assessment provided for
herein shall be a debt of each Owner and a lien on such Owner’s Lot and the
improvements thereon, and shall be enforced and collected as provided in
Article IV hereof.
Section 1. Definition. For purposes of this Article
VIII, “Party Wall” shall mean and refer to any wall which is
part of the original construction of the structures located on Lots and is
placed on or immediately adjacent to a Lot line and which separates two (2) or
more structures.
Section 2. General Rules of Law to Apply. To the extent not inconsistent with the
provisions of this Article, the general rules of law regarding Party Walls and
liability for property damage due to negligence or willful acts or omissions
shall apply thereto.
Section 3. Sharing of Repair and Maintenance. The cost
of reasonable repair and maintenance of a Party Wall shall be shared by the Owners who make use of the Party Wall in proportion to such use.
Section 4. Destruction by Fire or Other Casualty. If a Party Wall is destroyed or damaged by
fire or other casualty, any Owner who has used the Party Wall may restore it,
and if the other Owners thereafter make use of the Party Wall, they shall
contribute to the cost of restoration thereof in proportion to such use without
prejudice, however, to the right of any such Owners to call for a larger
contribution from the others under any rule of law regarding liability for
negligent or willful acts or omissions.
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Section 5. Weatherproofing. Notwithstanding any other provision of this Article,
an Owner who by his negligent or willful act causes a Party Wall to be exposed
to the elements shall bear the whole cost of furnishing the necessary
protection against such elements.
Section 6. Right to Contribution Runs with Land. The right of any Owner to contribution from
any other Owner under this Article shall be appurtenant to and run with the
land and shall pass to such Owner’s successors in title.
Section 7. Arbitration. In the event of any dispute arising
concerning a Party Wall, under the provisions of this Article, each party shall
choose one arbitrator, and such arbitrators shall choose one additional
arbitrator, and the decision shall be by a majority of all the
arbitrators. Should any party refuse to
appoint an arbitrator within 10 days after written request therefor by an
Owner, the Board of Directors of the Association shall select an arbitrator for
the refusing party. The parties to the
arbitration shall share the costs thereof, but each party shall pay its own
attorneys’ fees.
EXTERIOR
MAINTENANCE
Section 1. General. The Association shall provide exterior
maintenance upon the structures of each Lot which is subject to assessment
hereunder, as follows: paint, repair,
replacement and care of roofs, gutters, downspouts, exterior building surfaces,
walks, and/or other exterior improvements, with the nature and extent of such
maintenance to be as may be established from time to time by the Board of
Directors; pro- vided, however, that such exterior maintenance shall not
include windows or other glass surfaces.
The costs of such exterior maintenance shall be common expenses of the
Association as provided in Article IV hereof, and the amount of the actual
assessments levied by the Association pursuant to Article IV shall be adjusted
accordingly, with regard to the anticipated costs of providing such maintenance
and any reserve requirements which may be incident thereto.
Section 2. Access Easement. Each Lot shall be subject
to an easement in favor of the Association (including its agents, employees and contractors) for performing maintenance as provided in this Article IX during reasonable hours after reasonable notice to the Owners or occupants of any affected Lot, except that in emergency situations entry upon a Lot may be made at any time, provided that the Owners or occupants of affected Lots shall be warned of impending emergency entry as early as is reasonably possible. The interior of any Residence located on a Lot shall not be subject to such easements as provided for in this Section 2.
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Section 3. Maintenance of Landscaping. Each Owner
shall be responsible for landscaping his Lot, subject to first having received the written approval of the Architectural Control Committee pursuant to the provisions of Article V. Any Owner who fails to maintain his Lot in a manner satisfactory to the Association shall be subject to the remedies contained in Section 4 of this Article IX. The Association shall be responsible for the landscaping and maintenance of the Common Area, including having the grass, weeds, trees, and vegetation cut and/or trimmed when necessary. No Owner shall, in whole or in part, change the landscaping of his Lot or any portion of the Common Area by the addition or removal of any items thereon without the prior written approval of the Architectural Control Committee.
Section 4. Owner’s Negligence. Notwithstanding
anything to the contrary contained in this Declaration, in the
event that the need for maintenance or repair of the Common Area, a Lot, or any
improvement(s) located thereon, is caused by the willful or negligent act or
omission of any Owner, or by the willful or negligent act or omission of any
member of such Owner’s family or by a guest or invitee of such Owner, the cost
of such repair or maintenance shall be the personal obligation of such Owner,
and any costs, expenses and fees incurred by the Association for such
maintenance, repair or reconstruction shall be added to and become part of the
assessment to which such Owner’s Lot is subject and shall become a lien against
such Owner’s Lot as provided in Article IV of this Declaration. A determination of the negligence or willful
act or omission of any Owner or any member of an Owner’s family or a guest or
invitee of any Owner, and the amount of the Owner’s liability therefor, shall
be determined by the Association at a hearing after notice to the Owner,
provided that any such determination which assigns liability to any Owner
pursuant to the terms of this Section may be appealed by said Owner to a court
of law.
Section 1. General Plan. It is the intention of the Declarant to
establish and impose a general plan for the improve- ment, development, use and
occupancy of the Properties, all thereof in order to enhance the value,
desirability, and attrac- tiveness of the Properties and subserve and promote
the sale thereof.
Section 2. Restrictions Imposed. The Declarant hereby declares that all of
the Properties shall be held and shall henceforth be sold, conveyed, used,
improved, occupied, owned, resided upon, and hypothecated, subject to the
following pro- visions, conditions, limitations, restrictions, agreements, and
covenants, as well as those contained elsewhere in this Declara- tion.
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Section 3. Use of Common Area.
(a) No use shall be made of the
Common Area which will in any manner violate the statutes, rules, or
regulations of any governmental authority having jurisdiction over the Common
Area.
(b) No Owner shall engage in any
activity which
will temporarily or permanently deny free access to any part of
the Common Area to all Members, nor shall any Owner place any structure
whatsoever upon the Common Area.
(c) The use of the Common Area
shall be subject to such rules and regulations as may be adopted from time to
time by the Board of Directors of the Association.
(d) No use shall ever be made of
the Common Area which will deny ingress and egress to those Owners having
access to Lots only over Common Area, and the right of ingress and egress to
said Lots is hereby expressly granted.
Section 4. Residential Use. Subject to Section 5 of
this Article X, Lots shall be used for residential purposes only, including uses related to the convenience and enjoyment of such residential use, and no business or profession of any nature shall be conducted on any Lot or in any structure located thereon.
Section 5. Declarant’s Use. Notwithstanding anything
to the contrary contained in this Declaration, it shall be
expressly permissible and proper for Declarant, its employees, agents, and
contractors, to perform such reasonable activities, and to maintain upon
portions of the Properties such facilities as Declarant deems reasonably
necessary or incidental to the construction and sale of Lots and development of
the Properties, specifically including without limiting the generality of the
foregoing, maintaining business offices, storage areas, construc- tion yards
and equipment, signs, model units, sales offices, parking areas and lighting
facilities. Notwithstanding the
foregoing, Declarant shall not perform any activity or maintain any facility on
any portion of the Properties in such a way as to unreasonably interfere with
or disturb any Owner, or to unrea- sonably interfere with the use, enjoyment or
access of such Owner, his family members, guests or invitees of and to his Lot,
the Common Area, parking areas and to a public right of way.
Section 6. Household Pets. No animals, livestock,
poultry or insects, of any kind, shall be raised, bred, kept or
boarded in or on the Properties; provided, however, that the Owners of each Lot
may keep a reasonable number of dogs, cats, fish, or other domestic animals
which are bona fide household
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pets, so long as such pet(s) are not kept for any commercial purpose and are not kept in such number or in such manner as to create a nuisance to any resident(s) of the Properties. The Association shall have, and is hereby given, the right and authority to reasonably determine that dogs, cats or other household pets are being kept for commercial purposes or are being kept in such number or in such manner as to be unreasonable or to create a nuisance to any resident(s) of the Properties, or that an Owner is otherwise in violation of the provisions of this Section 6, and to take such action or actions as it deems reasonably necessary to correct the same. An Owner’s right to keep household pets shall be coupled with the responsibility to pay for any damage caused by such Owner’s pet(s).
Section 7. Lots to be Maintained. Each Lot at all
times shall be kept in a clean, sightly, and wholesome condition. No trash, litter, junk, boxes, containers, bottles, cans, implements, machinery, lumber, or other building materials shall be permitted to remain exposed upon any Lot so that the same are visible from any neighboring Lot, the Common Area, or any street, except as necessary during the period of construction.
Section 8. Temporary Structures. Except as hereinafter provided, no structure
of a temporary character, including but not limited to a house trailer, tent,
shack, or outbuilding shall be placed or erected upon any Lot, and no residence
shall be occupied in any manner at any time prior to its being fully completed,
nor shall any residence when completed be in any manner occupied until made to
comply with all requirements, conditions, and restrictions herein set forth;
provided, however, that during the actual construction, alteration, repair or
remodeling of a residence, necessary temporary structures for storage of
materials may be erected and maintained by the person doing such work. The work of constructing, altering or
remodel- ing any residence shall be prosecuted diligently from the commencement
thereof until the completion thereof.
Section 9. Miscellaneous Structures.
(a) No advertising or signs of any
character shall
be erected, placed, permitted, or maintained on any Lot other
than a name plate of the occupant and a street number, and except for a “For
Sale,” “Open House,” or “For Rent” sign not to exceed five (5) square feet;
notwithstanding the foregoing, reasonable signs, advertising, or billboards
used by the Declarant in connection with its sale or rental of Lots, or
otherwise in connection with its development of the Properties, shall be
permissible, provided that such use by the Declarant shall not interfere with
the Owners’ use and enjoyment of their Lot, the Common Area, or with their
ingress or egress from a public way to the Common Area or their Lot.
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(b) All types of refrigerating,
cooking, or
heating apparatus shall be concealed.
(c) Except as may otherwise be
permitted by the Architectural Control Committee, all antennae shall be
installed inside any residence.
(d) No clotheslines, dog runs,
drying yards,
service yards, wood piles or storage areas shall be so located on any Lot as to be visible from a street, any other Lot, or from the Common Area.
Section 10. Vehicular Parking, Storage and Repairs.
(a) Any house trailer, camping
trailer, boat
trailer, hauling trailer, running gear, boat, or accessories
thereto, motor-driven cycle, truck (larger than 3/4 ton), self- contained
motorized recreational vehicle, or other type of recreational vehicle or
equipment, may be parked or stored on the Properties only if such parking or
storage is done wholly within the enclosed garage, if any, located on a Lot, or
within any area which may, from time to time, be designated by the Association
for the parking or storage of such vehicles, except that any such vehicle may
be otherwise parked as a temporary expedience for loading, delivery, or
emergency. This restriction, however,
shall not restrict trucks or other commercial vehicles within the Properties
which are necessary for construction or for the maintenance of the Common Area,
Lots, or any improvements located thereon.
(b) Except as hereinabove provided,
no abandoned
or inoperable automobiles or vehicles of any kind shall be
stored or parked on the Properties. An
“abandoned or inoperable vehicle” shall be defined as any automobile, truck,
motorcycle, boat, trailer, camper, housetrailer, self-contained motorized
recreational vehicle, or other similar vehicle, which has not been driven under
its own propulsion for a period of two (2) weeks or longer, or which does not
have an operable propulsion system installed therein; provided, however, that
otherwise permitted vehicles parked by Owners while on vacation or during a
period of illness shall not constitute abandoned or inoperable vehicles. In the event the Association shall determine
that a vehicle is an abandoned or inoperable vehicle, then a written notice
describing said vehicle shall be personally delivered to the owner thereof (if
such owner can be reasonably ascertained) or shall be conspicuously placed upon
the vehicle (if the owner thereof cannot be reasonably ascertained), and if the
abandoned or inoperable vehicle is not removed within 72 hours thereafter, the
Association shall have the right to remove the vehicle at the sole expense of
the owner thereof.
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(c) No activity such as, but not
limited to, maintenance, repair, rebuilding, dismantling, repainting, or
servicing of any kind of vehicles, trailers or boats, may be performed or
conducted on the Properties, unless it is done within completely enclosed
structure[s](s) which screen the sight and sound of the activity from the
street and from adjoining property. The
foregoing restriction shall not be deemed to prevent washing and polishing of
any motor vehicle, boat, trailer, or motor-driven cycle, together with those
activities normally incident and necessary to such washing and polishing.
Section 11. Nuisances. No nuisance shall be permitted
on the Properties, nor any use, activity or practice which is the source of annoyance or embarrassment to, or which offends or disturbs, any residents of the properties, or which interferes with the peaceful enjoyment or possession and proper use of the Properties, or any portion thereof, by its residents. As used herein, the term “nuisance” shall not include any activities of Declarant which are reasonably necessary to the development of and construction on the Properties; provided, however, that such activities of the Declarant shall not unreasonably interfere with any Owner’s use and enjoyment of his Lot or the Common Area, or with any Owner’s ingress and egress to or from his Lot and a public way. Further, no immoral, improper, offensive or unlawful use shall be permitted or made of the Properties or any portion thereof. All valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the Properties, or any portion thereof, shall be observed.
Section 12. Lots Not to be Subdivided. No Lot shall be subdivided, except for the
purpose of combining portions with an adjoining Lot provided that no additional
building site is created thereby. Not
less than one entire Lot, as conveyed, shall be used as a building site.
Section 13. No Hazardous Activities. No activities
shall be conducted on the Properties or within improvements constructed on the Properties 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 of the Properties and no open fires shall be lighted or permitted on the Properties except in a contained barbecue unit while attended and in use for cooking purposes or within an interior fireplace, or except such campfires or picnic fires on property which may be designated for such use by the Association.
Section 14. No Annoying Light, Sounds or Odors. No
light shall be emitted from any Lot which is unreasonably bright or causes unreasonable glare; no sound shall be emitted from any Lot which is unreasonably loud or annoying; and no odor shall be permitted from any Lot which is noxious or offensive to others.
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Section 15. Garbage and Refuse Disposal. No garbage, refuse, rubbish, or cuttings
shall be deposited on any street, the Common Area, or any Lot, unless placed in
a suitable con- tainer suitably located, solely for the purpose of garbage
pickup. All equipment for the storage
or disposal of such materials shall be kept in a clean and sanitary
condition. No garbage or trash cans or
receptacles shall be maintained in an exposed or unsightly manner.
Section 16. Leases. The term “lease,” as used herein, shall include any agreement for
the leasing or rental of a Lot or any portion thereof, and shall specifically
include, without limitation, a month-to-month rental. Any Owner shall have the right to lease his Lot under the
following conditions:
(a) All leases shall be in writing;
and
(b) All leases shall provide that
the terms of the lease and lessee’s occupancy of the Lot shall be subject in
all respects to the provisions of this Declaration, and the Articles of
Incorporation, Bylaws and Rules and Regulations of the Association, and that
any failure by the lessee to comply with any of the aforesaid documents, in any
respect, shall be a default under the lease; and
(c) No lease shall be for an
initial term of less than six (6) months or a subsequent term of less than one
(1) month.
Section 17. Minor Violations of Setback Restrictions.
If upon the erection of any structure, it is disclosed by survey that a minor violation or infringement of setback lines has occurred, such violation or infringement shall be deemed waived by the Owners of Lots immediately adjoining the Lot containing the structure which is in violation of the setback, and such waiver shall be binding upon all other Owners. However, nothing contained in this Section 17 shall prevent the prosecution of a suit for any other violation of the restrictions contained in this Declaration. A “minor violation,” for the purpose of this Section, is a violation of not more than three (3) feet beyond the required setback lines or Lot lines. This provision shall apply only to the original structures and shall not be applicable to any alterations or repairs to any of such structures.
Section 18. Rules and Regulations. Rules and regula- tions concerning and
governing the Properties or any portion thereof may be adopted, amended or
repealed, from time to time by the Board of Directors of the Association, and
the Board of Directors may establish and enforce penalties for the infraction
thereof, including without limitation the levying and collecting of fines for
the violation of any of such rules and regulations.
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Section 19. Management Agreements and Other Contracts. Any agreement for professional management of
the Association’s business or other contract providing for the services of the
Declarant shall have a maximum term of three (3) years and any such agreement
shall provide for termination by either party thereto, with or without cause
and without payment of a termina- tion fee, upon thirty (30) days’ prior
written notice; provided, however, that any such management agreement(s)
entered into by the Association with a manager or managing agent prior to the
termination of the Class B membership shall be subject to review and approval
by HUD or VA, and shall terminate absolutely, in any event, no later than
thirty (30) days after termination of the Class B membership.
FIRST MORTGAGEES
Section 1. Member and First Mortgagee Approval.
Subject to Article XII, Sections 8(b) and 8(c) of this Declara-
tion, but notwithstanding any other provisions of this Declara- tion to the
contrary, the Association shall not:
(a) unless it has obtained the
prior written
consent of at least sixty-seven percent (67%) of each class of
Members and sixty-seven percent (67%) of the First Mortgagees of Lots (based
upon one vote for each First Mortgage owned):
(1) by act or
omission, change, waive, or abandon any scheme of architectural control, or
enforce- ment thereof, as set forth in this Declaration, regard-
ing the design or maintenance of the Lots, improvements thereon
or the Common Area;
(2) fail to maintain
full current replacement cost fire and extended insurance coverage on the
Common Area;
(3) use hazard insurance
proceeds for Common Area property losses for purposes other than to repair,
replace, or reconstruct such property;
(4) by act or
omission, seek to abandon, partition, subdivide, encumber, sell, or transfer
any
common property owned, directly or indirectly, by the
Association for the benefit of the Owners (excluding the granting of permits,
licenses and easements for public utilities, roads, or other purposes
reasonably necessary or useful for the proper maintenance or operation of the
Properties or the Association);
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(5) change the method
of determining the obligations, assessments, dues, or other charges which
may be levied against an Owner; or
(6) terminate the
legal status of the
Properties as a planned unit development, provided that
this subsection (6) shall not apply to amendments to
this Declaration, the Articles of Incorporation or
Bylaws of the Association made as a result of destruc-
tion, damage or condemnation of the Properties or improvements
thereon; provided, however, that any distribution made as a result of said
termination shall
be accomplished on a reasonable and equitable basis.
(b) unless it has obtained the prior written
consent of at least sixty-seven percent (67%) of each class of Members, and fifty-one percent (51%) of the First Mortgagees of Lots (based upon one vote for each First Mortgage owned):
(1) add or amend any
material provisions of
this Declaration, the Articles of Incorporation or
Bylaws of the Association which establish, provide for, govern
or regulate any of the following, provided that
such additions or amendments shall not be considered material if
they are for the purpose of correcting
technical errors or for clarification only;
(A) voting rights;
(B) assessments,
assessment liens or sub- ordination of such liens;
(C) reserves for maintenance, repair and replacement of
those elements of the Common Area which must be maintained, repaired or
replaced on a periodic basis;
(D) insurance, including but not limited to fidelity bonds;
(E) rights to use of the Common Area;
(F) responsibility for maintenance and repair of any
portion of the Properties;
(G) expansion or contraction of the Prop-
erties or the addition, annexation or withdrawal of property to
or from the Properties;
(H) boundaries of any Lot;
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(I) interests in the Common Area;
(J) convertibility of Lots into Common Area or of Common
Area into Lots;
(K) leasing of Lots or dwellings constructed thereon;
(L) imposition of any right of first refusal or similar
restriction on the right of any Owner to sell, transfer or otherwise convey his
Lot;
(M) restore or repair the Properties, or any portion thereof,
including but not limited to improvements located thereon, after a partial
condemnation or damage due to an insurable hazard, other than substantially in
accordance with this Declaration and the most recent plans and specifi- cations
for the Properties and the construction of improvements therein;
(N) terminate the legal status of the Properties as a
Planned Unit Development after substantial destruction or a substantial taking
in condemnation of the Properties.
(O) any provisions which are for the express benefit of
First Mortgagees, or insurers or guarantors of First Mortgages; or
(2) effectuate any decision to
terminate profes-
sional management and assume self-management of the Association,
when professional management has previously been required by any First
Mortgagee of a Lot or insuror
or guarantor of such a First Mortgage;
Section 2. Notice of Action. Upon written request to
the Association, identifying the name and address of the First Mortgagee or insuror or guarantor of the First Mortgage and the residence address of the property which is subject to such First Mortgage, each such First Mortgagee of a Lot, or insuror or guarantor of such a First Mortgage, shall be entitled to timely written notice of:
(a) any condemnation loss or
casualty loss which affects a material portion of the Properties or any Lot
subject to a First Mortgage held, insured or guaranteed by such First
Mortgagee, insuror or guarantor of a First Mortgage;
(b) any delinquency in the payment
of assessments
or charges owed to the Association by the Owner of the Lot
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subject to a First Mortgage held, insured or guaranteed by such
First Mortgagee, insuror or guarantor, or any default by such Owner in any
obligation under the Declaration, Articles of Incorporation or Bylaws of the
Association and the Board of Directors of the Association has actual knowledge
of such default, when such delinquency and/or default remains uncured for a
period of sixty (60) days;
(c) any lapse, cancellation or
material modifica-
tion of any insurance policy or fidelity bond maintained by the Association;
(b) any proposed action which would
require the consent of a specified percentage of First Mortgagees as provided
in this Article XI.
Section 3. Audit. At any time after that date on which the Project has been
expanded, pursuant to Article XII, Section 6 hereof, to include fifty (50) or
more Lots, the Association shall provide an audited financial statement for the
immediately preceding fiscal year, free of charge to the party so requesting,
to any First Mortgagee of any Lot, or any insuror or guarantor of such a First
Mortgage, within a reasonable time after written request therefor made by any
such First Mortgagee, insuror or guarantor of such a First Mortgage. So long as the Project includes less than
fifty (50) Lots, fifty-one percent (51%) or more of the First Mortgagees of
Lots shall be entitled to have such an audited financial statement prepared at
their expense if one is not otherwise available.
Section 1. Enforcement. Enforcement of the
covenants, conditions, restrictions, easements, reservations, rights-of-way,
liens, charges and other provisions contained in this Declara- tion, the
Articles of Incorporation, Bylaws or Rules and Regula- tions of the
Association, as amended, may be by any proceeding at law or in equity against
any person or persons violating or attempting to violate any such
provision. The Association and any
aggrieved Owner shall have the right to institute, maintain and/or prosecute
any such proceedings, and the Association shall further have the right to levy
and collect fines for the viola- tion of any provision of any of the aforesaid
documents; in any action instituted or maintained under this Section, the
prevail- ing party shall be entitled to recover its costs and reasonable
attorneys’ fees incurred pursuant thereto, as well as any and all other sums
awarded by the Court. Failure by the
Association or any Owner to enforce any covenant or restriction herein con-
tained, or any other provision of any of the aforesaid documents, shall in no
event be deemed a waiver of the right to do so thereafter.
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Section 2. Severability. Invalidation of any of these covenants or
restrictions by judgment or court order shall in no way affect or limit any
other provisions which shall remain in full force and effect.
Section 3. Construction and Maintenance Easement. If
any portion of any exterior wall of a structure is situated within five feet of any adjoining Lot line, a valid easement shall and does exist, five feet in width along the adjoining Lot and adjacent to the said Lot line, which easement may be used for the purpose of construction, reconstruction, maintenance and repair of said exterior wall of a structure that is situated within five feet from the nearest point of said easement.
Section 4. Utilities. There is hereby created a
blanket easement upon, across, over and under the Properties for
utilities and the installation, replacement, repair and mainte- nance of
utilities, including but not limited to water, sewer, gas, telephone,
electricity, master television antenna systems, and cable television, provided
that said blanket easement shall not extend upon, across, over or under any
structure located on any Lot. By virtue
of this blanket easement, it shall be expressly permissible to erect and
maintain the necessary facilities, equipment and appurtenances on the
Properties and to affix, repair, and maintain water and sewer pipes, gas,
electric, telephone and television wires, circuits, conduits and meters. In the event any utility or quasi-utility
company furnishing a service covered by the general easement created herein
requests a specific easement by separate recordable document, Declarant
reserves and is hereby given the right and authority to grant such easement
upon, across, over or under any part or all of the Common Area without
conflicting with the terms hereof, provided, however, that such right and
authority shall cease and determine upon conveyance by Declarant of the last
Lot to the first purchaser thereof (other than Declarant).
Section 5. Conflict of Provisions. In case of any conflict between this
Declaration, the Articles of Incorporation or Bylaws of the Association, this
Declaration shall control. In case of
any conflict between the Articles of Incorporation and the Bylaws of the
Association, the Articles of Incorporation shall control.
Section 6. Annexation. Additional residential property and/or
Common Area may be annexed with the consent of two-thirds of each class of
Members. Notwithstanding the foregoing,
the Declarant may annex additional residential property and Common Area within
the lands described on Exhibit C attached hereto and incorporated herein by
this reference, until that date which is Five (5) years after the date of
recording of this Declaration
in Douglas County, Colorado, without consent of the individual
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Owners, subject to a determination by HUD or VA that the annexa- tion is in accord with the general plan heretofore approved by them. Each such annexation shall be effected, if at all, by recording an annexation of additional land in the Office of the Clerk and Recorder of the County of Douglas, Colorado, which document shall provide for annexation to this Declaration of the property described in such annexation of additional land, and may include such other provisions as deemed appropriate by the Declarant. All provisions of this Declaration, including but not limited to those provisions regarding obligations to pay assess- ments to the Association and any right to cast votes as Members, shall apply to annexed property immediately upon recording an annexation of additional land with respect thereto, as aforesaid. Prior to transferring ownership of the first Lot conveyed in the Properties and in any property which is annexed by Declarant pursuant to this Section 6, Declarant shall convey the Common Area contained in the Properties or in such annexed property, as applicable, to the Association.
Section 7. Condemnation. In the event proceedings are initiated by
any government or agency thereof, seeking to take by condemnation or the power
of eminent domain the Common Area, any part thereof or any interest therein,
any improvement thereon, or any interest therein, the Association shall give
prompt notice thereof, including a description of the part of or interest in
the Common Area or improvement thereon sought to be so condemned, to all
Members. The Association shall have
full power and authority to defend in said proceedings, and to represent the
Owners in any negotiations, settlements and agreements with a condemning
authority for acquisition of the Common Area, and part thereof, or any interest
therein, and each Owner hereby appoints the Association as his attorney-in-fact
for such purposes. Any award or
proceeds of settlement shall be payable to the Associa- tion for the use and
benefit of the Members and their mortgagees as their interest may appear.
(a) In the even that all of the
Common Area is
taken or condemned, or sold or otherwise disposed of, in lieu of
or in avoidance thereof, any award or settlement shall be apportioned by the
Association on a reasonable basis as the Association determines to be equitable
in the circumstances, or as determined by judicial decree. If the allocation of condemna- tion award is
already established in the negotiations, judicial decree, or otherwise, then in
allocating the condemnation award the Association shall employ such allocation
to the extent that it is relevant and applicable.
(b) In the event that less than the
entire Common
Area is taken or condemned or sold or otherwise disposed of in
lieu of or in avoidance thereof, the condemnation award shall first be applied
by the Association to the rebuilding and
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replacement of those improvements on the Common Area damaged or
taken by the condemning public authority, unless sixty-seven percent (67%) of
the Owners and sixty-seven percent (67%) of the First Mortgagees of Lots (based
upon one vote for each First Mortgage held) agree otherwise. Any surplus of the award or other portion
thereof not used for rebuilding and replacement shall be distributed by the
Association on the same basis as indicated in subparagraph (a) of this Section
7. No provision of the Declaration or
any other document relating to the Properties shall be deemed to give an Owner
or any other party priority over the rights of a First Mortgagee, pursuant to a
First Mortgage, in the case of a distribution to any Owner of insurance
proceeds or condemnation award for losses to or taking of Lots or Common Area
or both.
Section 8. Duration, Revocation, and Amendment.
(a) Each and every provision of
this Declaration shall run with and bind the land for a term of twenty (20)
years from the date of recording of this Declaration, after which time this
Declaration shall be automatically extended for successive periods of ten (10)
years each. Except as provided in
Article XI hereof, this Declaration may be amended during the first twenty (20)
year period, and during subsequent extensions thereof, by any instrument
approved in writing by not less than fifty-one percent (51%) of the Members of
each class. Such amendment shall be
effective when duly recorded in Douglas County, Colorado.
(b) Notwithstanding anything to the
contrary contained in this Declaration, if Declarant shall determine that any
amendments to this Declaration or any amendments to the Articles of
Incorporation or Bylaws of the Association shall be necessary in order for
existing or future mortgages, deeds of trust or other security instruments to
be acceptable to any of the Agencies, then, subject to the following sentence
of this Section, Declarant shall have and hereby specifically reserves the
right and power to make and execute any such amendments without obtaining the
approval of any Owners or First Mortgagees.
Each such amendment of this Declaration or of the Articles of
Incorporation or Bylaws shall be made, if at all, by Declarant prior to
termination of the Class B membership as provided in Article III, Section 2 of
this Declaration; and each such amendment must contain thereon the written
approval of VA or HUD.
(c) Declarant hereby reserves and
is granted the right and power to record technical amendments to this Declara-
tion at any time prior to the termination of the Class B member- ship, for the
purposes of correcting spelling, grammar, dates or as is otherwise necessary to
clarify the meaning of the pro- visions of this Declaration.
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Section 9. Rights of Declarant Incident to Construc-
tion.
An easement is hereby retained by and granted to Declarant, its
successors and assigns, for access, ingress, and egress over, in, upon, under,
and across the Common Area, including but not limited to the right to store
materials thereon and to make such other use thereof as may be reasonably
necessary or incidental to Declarant’s construction on the Properties;
provided, however, that no such rights or easements shall be exercised by
Declarant in such a manner as to unreasonably interfere with the occupancy,
use, enjoyment, or access by any Owner, his family members, guests, or
invitees, to or of that Owner’s Lot.
Section 10. Easement for Encroachments. If any portion
of a structure encroaches upon the Common Area or upon any adjoining Lot, including any future encroachments arising or resulting from the repair or reconstruction of a structure subsequent to its damage, destruction or condemnation, a valid easement on the surface and for subsurface support below such surface and for the maintenance of same, so long as it[s] stands, shall and does exist.
Section 11. Registration by Owner of Mailing Address. Each Owner and each First Mortgagee, insuror
or guarantor of a First Mortgage, shall register his mailing address with the
Association, and except for monthly statements and other routine notices, all
other notices or demands intended to be served upon an Owner, or each First
Mortgagee, insuror or guarantor or a First Mortgage shall be sent by either
registered or certified mail, postage prepaid, addressed in the name of the
Owner at such registered mailing address.
All notices, demands, or other notices intended to be served upon the
Board of Directors of the Association or the Association shall be sent by
certified mail, postage prepaid, to 14901 East Hampden Avenue, Aurora, Colorado
80014, until such address is changed by the Association.
Section 12. FHA/VA Approval. As long as there is a
Class B membership, the following actions shall require the prior approval of the HUD or VA: annexation of additional properties, dedication of Common Area, levying special assessments for capital improvements and amendment of this Declaration.
Section 13. Dedication of Common Area. Declarant in recording this Declaration of
Covenants, Conditions and Restric- tions has designated certain areas of land
as Common Area intended for the common use and enjoyment of Owners for recrea-
tion and other related activities. The
Common Area is not dedicated hereby for use by the general public but is
dedicated to the common use and enjoyment of the Owners, as more fully provided
in this Declaration of Covenants, Conditions and Restrictions.
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IN WITNESS WHEREOF, the undersigned, being the Declarant
herein, has hereunto set its hand and seal as of the day and year
first above written.
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
The foregoing
instrument was acknowledged before me this
21st
day of September_____, 1983
by ________Craig H. Johnson_______
as ________President_______ and __________Steven S.
Benson_________
as ________Attorney-in fact________ of the Investment
Builders Division
of PULTE HOME CORPORATION, a Delaware corporation.
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EXHIBIT
A
DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF
TOWN AND
COUNTRY VILLAGE TOWNHOMES
Phase I
Legal Description:
That part of the Northeast quarter of
Section 22, Township 6 South, Range 66
West of the 6th P.M., County of Douglas,
State of Colorado, more particularly described as follows:
Commencing at the Northeast corner of said Section 22, thence N89º39’06”W, along the North line of said Section 22, 1158.87 feet;
thence S36º43’57”W,
749.85 feet to the Point of Beginning;
thence N89º25’45”W,
26.26 feet;
thence N85º55’45”W,
170.00 feet;
thence S83º45’33”W,
149.81 feet;
thence SOº34’15”W,
198.77 feet to a point on a curve.
thence along said
curve to the right having a radius of 186.00 feet, a central angle of
53º45’02”, a chord bearing of N63º41’44”E, a chord length of 168.16 feet,
174.49 feet;
thence S89º25’45”E,
176.16 feet to a point of curve;
thence along said
curve to the left having a radius of 15.00 feet, a central angle of 90º00’00”,
23.56 feet;
thence NOº34’15”E,
67.31 feet to a point of curve;
thence along said
curve to the right having a radius of 325.00 feet, a central angle of 8º27’50”,
48.01 feet to the Point of Beginning, County of Douglas, State of Colorado.
That part of the
Northeast quarter of Section 22, Township 6 South, Range 66 West of the 6th
P.M., County of Douglas, State of Colorado, more particularly described as
follows:
Commencing at the
Northeast corner of said Section 22, thence N89º39’06”W along the North line of
said Section 22, 30.00 feet;
thence S45º18’12”W,
1032.80 feet to the Point of Beginning;
thence N73º16’51”W,
145.08 feet;
thence N89º58’48”W,
62.00 feet;
thence SOº01’12”W,
98.10 feet to a point on a curve;
thence along said
curve to the right having a radius of 176.01 feet, a central angle of
17º19’16”, a chord bearing of S79º24’35”E, a chord length of 53.01 feet, 53.21
feet to a point of reverse curve;
thence along said
curve to the left having a radius of 119.00 feet, a central angle of 86º22’31”,
179.40 feet to the Point of Beginning, County of Douglas, State of Colorado.
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EXHIBIT
B
DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF
TOWN AND
COUNTRY VILLAGE TOWNHOMES
Phase I
Common Area Legal Description:
That part of the Northeast quarter of
Section 22, Township 6 South, Range 66
West of the 6th P.M., County of Douglas,
State of Colorado, more particularly described as follows:
Commencing at the Northeast corner of said Section 22, thence N89º39’06”W, along the North line of said Section 22, 1158.87 feet;
thence S36º43’57”W,
749.85 feet to the Point of Beginning;
thence N89º25’45”W,
26.26 feet;
thence N85º55’45”W,
170.00 feet;
thence S83º45’33”W,
149.81 feet;
thence SOº34’15”W,
198.77 feet to a point on a curve.
thence along said
curve to the right having a radius of 186.00 feet, a central angle of
53º45’02”, a chord bearing of N63º41’44”E, a chord length of 168.16 feet,
174.49 feet;
thence S89º25’45”E,
176.16 feet to a point of curve;
thence along said
curve to the left having a radius of 15.00 feet, a central angle of 90º00’00”,
23.56 feet;
thence NOº34’15”E,
67.31 feet to a point of curve;
thence along said
curve to the right having a radius of 325.00 feet, a central angle of 8º27’50”,
48.01 feet to the Point of Beginning, except Lots 1 through 6 inclusive, Town
and Country Village Subdivision, Filing No. 1, County of Douglas, State of
Colorado.
That part of the
Northeast quarter of Section 22, Township 6 South, Range 66 West of the 6th
P.M., County of Douglas, State of Colorado, more particularly described as
follows:
Commencing at the
Northeast corner of said Section 22, thence N89º39’06”W along the North line of
said Section 22, 30.00 feet;
thence S45º18’12”W,
1032.80 feet to the Point of Beginning;
thence N73º16’51”W,
145.08 feet;
thence N89º58’48”W,
62.00 feet;
thence SOº01’12”W,
98.10 feet to a point on a curve;
thence along said
curve to the right having a radius of 176.01 feet, a central angle of
17º19’16”, a chord bearing of S79º24’35”E, a chord length of 53.01 feet, 53.21
feet to a point of reverse curve;
thence along said
curve to the left having a radius of 119.00 feet, a central angle of 86º22’31”,
179.40 feet to the Point of Beginning, except Lots 1 through 4 inclusive, Town
and Country Village Subdivision, Filing No. 2, County of Douglas, State of
Colorado.
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EXHIBIT C
TO
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF
TOWN AND COUNTRY VILLAGE TOWNHOMES
Annexable Area Legal Description
Parcel A: Town and Country Village Subdivision, Filing
No. 1, except the
real property described as Parcel 1
on Exhibit A to
this Declaration
Parcel B: Town and Country Village Subdivision, Filing
No. 2, except
the real property described as
Parcel 2 on Exhibit A to
this Declaration
Parcel C: Town and Country Village Subdivision, Filing
No. 3.
Parcel D: Town and Country Village Subdivision, Filing
No. 4.
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