Smoky Ridge
Smoky Ridge HOA Declaration
HOA Declaration
Recorded at 1:10 o'clock PM, March 11, 1985
Reception No. 2508582, MARJORIE PAGE, Recorder
Book 4387 Page 404
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
SMOKY RIDGE SUBDIVISION
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1 Agencies 2
Section 2 Architectural Control Committee 2
Section 3 Association 2
Section 4 Declarant 2
Section 5 Declaration 2
Section 6 First Mortgage 2
Section 7 First Mortgagee 3
Section 8 Lot 3
Section 9 Maintenance Property 3
Section 10 Member 3
Section 11 Owner 3
Section l2 Participating Builder 3
Section l3 Properties 4
Section l4 Residence 4
ARTICLE II
PROPERTY RIGHTS IN THE COMMON PROPERTY
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
Mortgagees 5
Book 4387 Page 405
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
Section 1 Membership 5
Section 2 Classes of Membership 5
Section 3 Reservation 6
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1 Creation of the Lien and Personal Obligation 6
Section 2 Purpose of Assessments 7
Section 3 Maximum Annual Assessment 7
Section 4 Special Assessments for Capital Improvements 9
Section 5 Individual Assessments 9
Section 6 Notice of Quorum for any Action
Authorized Under Sections 3 and 4 9
Section 7 Uniform 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 11
Section 11 Subordination of the Lien to Mortgages 12
ARTICLE V
INSURANCE
Section 1 Insurance on Maintenance Property 12
Section 2 Damage to Recreational Property 14
Section 3 Association Insurance as Primary Coverage 15
Section 4 Annual Review of Insurance Policies 15
ARTICLE VI
RESTRICTIONS
Section 1 General Plan 15
Section 2 Restrictions Imposed 15
Section 3 Use of Properties 15
Section 4 Declarant's Use 16
Section 5 Household Pets 16
Section 6 Temporary Structures 17
Section 7 Signs and Advertising 17
Section 8 Miscellaneous Structures 17
Section 9 Vehicular Parking, Storage and Repair 17
Section 10 Nuisances 18
Section 11 Underground Utility Lines 19
Section 12 No Hazardous Activities 19
Book 4387 Page 406
Section 13 No Annoying Light, Sounds or Odors 19
Section 14 Trash 19
Section 15 Clothes Lines and Storage 19
Section 16 Commercial Activity 19
Section 17 Resubdivision 20
Section 18 Prohibitions 20
Section 19 Mineral Exploration 20
Section 20 Drainage 20
Section 21 Leases 20
Section 22 Set Back Requirements 20
Section 23 Street Lighting 20
Section 24 Maintenance by Owner 21
Section 25 Roles and Regulations 21
ARTICLE VII
EASEMENTS
Section 1 Easement for Encroachments 21
Section 2 Maintenance Basement 21
Section 3 Utilities 21
Section 4 Rights of Declarant and Participating
Builders Incident to Construction 22
Section 5 Easements Deemed Created 22
ARTICLE VIII
FIRST MORTGAGEES
Section 1 Member and First Mortgagee Approval 22
Section 2 Notice of Action 25
Section 3 Financial Statement 25
ARTICLE IX
ARCHITECTURAL CONTROL COMMITTEE
Section 1 Committee Members 25
Section 2 Duties 26
Section 3 Review by Committee 26
Section 4 Standards for Review 26
Section 5 Standards for Residences 26
Section 6 Procedures 27
Section 7 Committee Liability 27
Section 8 Records 27
Section 9 Costs 28
Section 10 Rules 28
Book 4387 Page 407
ARTICLE X
GENERAL PROVISIONS
Section 1 Enforcement 28
Section 2 Severability 28
Section 3 Conflicts of Provisions 28
Section 4 Annexation 28
Section 5 Condemnation 29
Section 6 Duration, Revocation and Amendment 30
Section 7 Registration by Owner of Mailing Address 30
Section 8 HUD/VA Approval 31
Section 9 Dedication of Maintenance Property 31
Section 10 Superceding Effect 31
Section 11 Captions 31
Section 12 Gender 31
Section 13 Claims 31
Section 14 Successors 31
Section 15 Claims Against Declarant 31
Section 16 Compulsory Arbitration 32
Exhibit A Legal Description of the Properties 34
Exhibit B Legal Description of the Maintenance Property 35
Book 4387 Page 408
DECLARATION
OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR SMOKY RIDGE SUBDIVISION
THIS DECLARATION, made and entered into this 6th day of March, 1985, by SMOKY RIDGE CORPORATION, a Colorado corporation, hereinafter referred to as "Declarant."
WITNESSETH:
WHEREAS, Declarant is the owner of that certain parcel of real property located in the County of Arapahoe, State of Colorado, which is described on Exhibit A attached hereto and incorporated herein by this reference; and
WHEREAS, the real property described on Exhibit A is subject to a Declaration of Conditions, Restrictions and Protective Covenants, dated August 15, 1983, and recorded in the office of the Clerk and Recorder of Arapahoe County, Colorado on December 5, 1983, in Book 4036 at Page 535 (the "Prior Declaration"); and
WHEREAS, Declarant desires to terminate the Prior Declaration and the conditions, restrictions and covenants therein and replace them with the covenants, conditions and restrictions set forth hereinafter in this Declaration.
NOW, THEREFORE, Declarant hereby declares that the Prior Declaration is terminated, removed, superseded, and of no further force and effect and all of the properties described above shall be held, sold, and conveyed subject to the following easements, reservations, restrictions, covenants, and conditions which are for the purpose of promoting the common recreation, health and safety of the owners of the aforesaid properties and maintaining and enhancing the value, desirability, and attractiveness of the properties and all improvements and amenities located thereon and which shall run with the aforesaid properties and be binding on all parties having any right, title, or interest in the above-described properties or any part thereof, their heirs, personal representatives, successors and assigns, and shall inure to the benefit of each owner thereof.
Book 4387 Page 409
ARTICLE I
DEFINITIONS
Section 1. "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 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" or "Committee" shall mean and refer to the committee described in Article II of this Declaration.
Section 3. "Associations" shall mean and refer to Smoky Ridge Maintenance Association, Inc., a Colorado non-profit corporation, its successors and assigns.
Section 4. "Declarant" shall mean and refer to Smoky Ridge Corporation, a Colorado corporation, its successors and assigns, if such successors and assigns are specifically assigned any of Declarant's rights hereunder by instrument duly recorded in the Arapahoe County, Colorado, land records.
Section 5. "Declaration" shall mean and refer to this Declaration of Covenants, Conditions and Restrictions, as it may be amended from time to time.
Section 6. "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 the County of Arapahoe, Colorado, encumbering any Lot having priority of record 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 10 and with respect to notice of termination, subordination or modification of certain insurance policies, to Article V, Section 1, 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 assigned by the said Administrator and is owned by the Administrator's assignee, or a remote assignee, and the land records in the office of the Clerk and Recorder of the County of Arapahoe, Colorado, show the said Administrator as having the record title to the Lot.
Book 4387 Page 410
Section 7. "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 10 and with respect to notice of termination, subordination or modification of certain insurance policies, to Article V, Section 1, 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 in the Office of the Clerk and Recorder of the County of Arapahoe, 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 8. `"Lot" shall mean and refer to any plot of land which is shown upon any recorded subdivision map of the Properties or any portion thereof, with the exception of the Maintenance Property, and public streets, but together with all appurtenances and improvements now or hereafter thereon.
Section 9. "Maintenance Property" shall mean and refer to all property (including the improvements thereto) owned by the Association for the common use and enjoyment of the Owners, together with all publicly dedicated roads, streets, rights-of- way and easements located within or adjacent to the perimeter boundaries of the Properties which are to be maintained by the Association. The Maintenance Property to be owned by the Association at the time of the commencement of assessments hereunder is described on Exhibit B attached hereto and incorporated herein by this reference.
Section 10. "Member" shall mean and refer to each Owner of the 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 sales, but excluding those having such interest merely as security for the performance of an obligation.
Section 12. "Participating Builder" shall mean an Owner other than Declarant which acquires a portion of the Properties from Declarant for the purpose of reselling or leasing the Residences thereon including Pulte Home Corporation, a Delaware corporation, HDC Development Corporation, a Colorado corporation, and any other party who is designated in writing by Declarant as a Participating Builder by instrument duly recorded in the Arapahoe County, Colorado land records.
Book 4387 Page 411
Section 13. "Properties" shall mean and refer to that certain real property described on Exhibit A and such additions thereto as may hereafter be brought within the jurisdiction of the Association.
Section 14. "Residence" shall mean and refer to any single-family residence located on a Lot within the Properties.
ARTICLE II
PROPERTY RIGHTS IN THE MAINTENANCE PROPERTY
Section 1. Owners' 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 Maintenance Property and the improvements located thereon, 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 Maintenance Property and, with written consent both two-thirds (2/3) of the votes of of the Members hereunder other than Declarant and two-thirds (2/3) of the votes of the Members hereunder including Declarant, 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 Maintenance Property against foreclosure; and
(c) The right of the Association to promulgate and publish rules and regulations with which each Member shall strictly comply; and
(d) The right of the Association, as provided in its Articles and Bylaws, to suspend the voting rights of a Member for any period during which any assessment 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, subject to Section 8 of Article X, all or any part of the Maintenance Property to any public agency, authority, or utility for such purposes and subject to such conditions as it may determine, provided that no such dedication or transfer shall be effective unless first approved in writing
Book 4387 Page 412
by two-thirds (2/3) of the votes of the Members hereunder other than Declarant and two-thirds (2/3) of the votes of the Members hereunder including Declarant, 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 consistent with the intended use of the Maintenance Property and reasonably necessary or useful 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 to close or limit the use of the Maintenance Property, or portions thereof, while maintaining, repairing and making replacements in the Maintenance Property.
Section 3. Delegation of Use. Any Owner may delegate, in accordance with the Bylaws, his right of enjoyment to the Maintenance Property and facilities to the members of his family, his tenants, or contract purchasers who reside on his Lot.
Section 4. Payment of Taxes or Insurance by Mortgagees. First Mortgagees 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 Maintenance Property and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for the Maintenance Property, and any First Mortgagee making any such payment shall be owed immediate reimbursement therefor from the Association.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
Section 1. Membership. Every Owner of a Lot which is subject to assessment hereunder, shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot.
Section 2. Class of Membership. The Association shall have one class of voting membership: Class A Members shall be all Owners of Lots, including Declarant. Each Class A Member 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 case with respect to any such Lot.
Book 4387 Page 413
Section 3. Reservation. Notwithstanding the foregoing voting rights, Declarant hereby reserves the right to appoint the Board of Directors of the Association for the period hereinafter described. The Board of Directors shall have such powers and duties and shall have for such terms of office as are set forth in the Articles of Incorporation and Bylaws of the Association. This reserved right shall terminate upon the first to occur of the following events:
(a) one hundred twenty (120) days following the date when seventy-five percent (75%) of all Lots in the Properties have been conveyed by Declarant or a Participating Builder to the first owner thereof (other than Declarant or a Participating Builder);
(b) five (5) years from the date upon which this Declaration is recorded in the office of the Clerk and Recorder of Arapahoe County, Colorado or
(c) on a date certain set forth in written notice from the Declarant to the Secretary of the Association of its intent to terminate this reserved right 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.
ARTICLE IV
COVENANT FOR ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of a Lot including Declarant and any Participating Builders, 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 and (2) special assessments, such assessments to be established and collected as hereinafter provided. The annual and special 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 expense of such proceedings, including reasonable attorney's fees. The Board of Directors or managing agent of the Association 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 Association and may be recorded in the office of the Clerk and Recorder of the County of Arapahoe, Colorado. The lien for each unpaid assessment shall
Book 4387 Page 414
attach to each Lot at the beginning of each assessment 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 each 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 each Lot for assessments 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 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 and safety of the residents of the Properties, or the repair, replacement, and maintenance of all landscaped rights-of-way and medians within or adjacent to public or private streets within or abutting the Properties which are the responsibility of the Association to maintain, and for the Improvement repair, replacement and maintenance of the Maintenance Property and the appurtenances and improvements thereto and thereon, including without limitation, maintenance of landscaping located on the Maintenance Property, maintenance of greenbelt areas within the Maintenance Property, pruning trees and hedges located upon the Maintenance Property, maintaining all fences, lighting facilities, if any, and entryway signs located within the Maintenance Property, maintaining certain publicly dedicated easements located within the Maintenance Property, and maintaining, repairing and replacing all improvements and facilities located thereon. Assessments also may be used for any purpose incident to the exercise of the Association's powers, duties or obligations.
Section 3. Maximum Annual Assessment. Until commencement of the second annual assessment period, as established in Section 7 of this Article IV, the maximum annual assessment shall be One Hundred Dollars ($100.00) per "Assessment Unit", subject to the assessment rate on certain Lots owned by Declarant or a Participating Builder, as provided in Section 6 of this Article IV. For purposes of this Declaration, an "Assessment Unit" shall mean a Lot.
(a) Effective with commencement of the second and each subsequent annual assessment period, the maximum annual assessment shall be increased effective each annual assessment year in conformance with the rise, if any, of the Con-
Book 4387 Page 415
Washington D.C., for All Items and Major Group Figures for All Urban Consumers (1967-100), for the one-year period ending with the preceding month of March. 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 Association. 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.
(b) 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, 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 assent of both two-thirds (2/3) of the Members other than Declarant and two-thirds (2/3) of the Members including Declarant 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.
(c) Subject to the provisions of Section 6 of this Article IV relating to Declarant's and Participating Builders' obligations to subsidize the Association for certain shortfalls in assessments, the Board of Directors of the Association may, at any tine and from time and time, after consideration of the projected maintenance costs and other financial needs of the Association, and upon written notification to each Owner of the amount of the actual assessment to be levied, fix the actual assessment per each assessment Unit at an amount less than the maximum. In the event the Board of Directors of the Association determines, at any time and from time to time, during any annual assessment period in which the Association shall have levied an assessment in the amount less than the maximum, that the rate of assessment then in effect is less than may be necessary to adequately fund all maintenance costs and other financial needs of the Association, then the Board of Directors of the Association may increase the actual assessment per each Assessment Unit upon written notification thereof to each Owner, provided that the amount of the actual assessment per each Assessment Unit shall not be increased to an amount in excess of the maximum annual assessment for that annual assessment period.
Book 4387 Page 416
(d) The limitations hereof shall not apply to any change in the maximum and basis of the assessments undertaken as incident to a merger or consolidation in which the Association is authorized to participate under its Articles of Incorporation.
(e) The Association shall maintain an adequate reserve fund out of the annual assessments for the maintenance, repair and replacement of those elements or portions of the Maintenance Property that must be maintained, repaired or replaced on a periodic basis.
Section 4. Special Assessments for Capital Improvements. In addition to the annual 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 any capital improvement upon the Maintenance Property, 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 both two-thirds (2/3) of the votes of the Members other than Declarant and two-thirds (2/3) of the Members including Declarant who are voting in person or by proxy at a meeting duly called for this purpose and shall be levied equally against each Assessment Unit.
Section 5. Individual Assessments. The Association's Board of Directors shall have the right to add to any Owner's assessment as provided in this Article those amounts expended by the Association for the benefit of any individual Assessment Unit and the Owner thereof, including but not limited to, fines, repairs and replacements (to any Lot or improvements thereon or the Maintenance Property) caused by the negligent or willfull acts of said Owner, his family, guests, employees, licensees, lessees or invitees.
Section 6. 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 nor more than 60 days in advance of the meeting. The first such meeting called shall require the presence of the Declarant and Members or of proxies, entitled to cast sixty percent (60%) of all the votes of each class of membership to constitute a quorum. If the required quorum is not present, other meetings may be called subject to the same notice requirement, and the required quorum at each such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that until the Declarant's right to appoint the Board of Directors has expired pursuant to Section 3, of Article III, any
Book 4387 Page 417
such meeting shall require the presence of the Declarant to be effective. No such subsequent meeting shall be held more than 60 days following the preceeding meeting.
Section 7. Uniform Rate of Assessment. Annual and special assessments must be fixed at a uniform rate for all Assessment Units sufficient to meet the expected needs of the Association; provided, however, that notwithstanding anything to the contrary contained in this Declaration, the rate of annual and special assessments set for the Lots owned by Declarant and/or Participating Builders which are neither leased, nor rented, nor otherwise residentially occupied shall be fixed at 25% of the assessment rate for the other Lots. In the event that, prior to the termination of the Declarant's reserved right to appoint the Board of Directors of the Association, assessments for annual common expenses, exclusive of those amounts held by the Association for an adequate reserve fund and for working capital, fail to equal or exceed the actual expenses incurred by the Association during any particular annual assessment period because of such partial Declarant and/or Participating Builder assessment, then Declarant and all Participating Builders shall collectively pay a sufficient amount, upon demand by the Association, not to exceed the remaining 75% of the full assessment rate for the other Lots for each Lot subject to partial assessment, to the Association to meet any such shortfall so long as (a) demand is made by the Association within sixty (60) days following the termination of each fiscal year in which a shortfall occurs, including the year in which Declarant's reserved right to appoint the Board of Directors of the Association is terminated, and (b) Declarant and all Participating Builders shall have no obligation for any such shortfall caused by expenditures for capital improvements, or by an decrease in assessments, including without limitation, the levying of any assessment in an amount less than the maximum for any common expense assessment period, which amount is established subsequent to the termination of the Declarant's reserved right to appoint the Board of Directors of the Association, unless the same has previously been approved in writing by Declarant; provided, however, that at the time any
any Lot owned by Declarant and/or a Participating Builder is leased, rented or otherwise residentially occupied, that Lot shall be assessed at the uniform rate of assessment for privately owned Lots. In the event there are any Participating Builders or there is more than one Declarant, then, subject to the conditions hereinabove stated, each such Declarant and/or Participating Builder shall pay a pro rata share of the amount necessary to meet each such shortfall in Association assessments, up to the amount of full parity on such assessments, such pro rata share to be based on the amount of assessments due at such lesser rate for Lots owned by each Declarant and Participating Builder, compared with the amount of assessments due at such lesser rate from the Declarant and all Participating Builders during the applicable annual assessment period.
Book 4387 Page 418
Section 8. Date of Commencement of Annual Assessments. The initial annual assessment shall commence on the first day of the month following the leasing, renting or other residential occupancy of the first Residence within the Properties and the second and each subsequent annual assessment period shall correspond with the fiscal year of the Association. The annual assessments may be made due and payable in four quarterly installments per annum (or installments of such lesser frequency as the Board of Directors may decide) and shall be due on such dates as determined by the Board of Directors of the Association, provided that the first annual assessment 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 or portion thereof which is not paid when due shall be delinquent. Any assessment or portion thereof which is not paid within ten (10) days after the due date shall bear interest from the due date at the rate of eighteen percent (18%) per annum and the Association may assess a monthly late charge thereon in such reasonable amounts as determined from time to time by the Association. The Association may bring am 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 and late charges on the assessment, as above provided, and a reasonable attorney's fee to be fixed by the court, together with the costs of the action. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Maintenance Property or abandonment of his Lot.
Section 10. Working Capital. The Association or Declarant shall require the first Owner of each Lot (other than Declarant or a Participating Builder), who purchases that Lot from Declarant or a Participating Builder, to make a nonrefundable contribution to capital to the Association in an amount equal to one-sixth (1/6) of the maximum annual assessment effective at the time of conveyance of the Lot. All such contributions shall be held in a segregated account by the Association for its use and benefit 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. The Association may, at its discretion, use such contributions to pay any delinquent assessments owed to the Association by the Owner. Such deposit 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 in am amount equal to the unused portion of the first private Owner's payment into the working capital fund which remains in the fund. Upon demand by
Book 4387 Page 419
the Association, each Owner shall be required to repay any portion of his working capital contribution drawn on by the Association for purposes of paying such Owner's delinquent assessments and, upon demand, such amount shall be deemed an assessment against such Owner.
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 such executory land sales contract, or any proceeding in lieu thereof, including deed in lieu of foreclosure, shall extinguish the lien of assessments charges which became due prior to any such sale or transfer, or foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure; provided however, that any such delinquent assessment charges, including interest, late charges, costs and reasonable attorneys fees, which are extinguished as provided herein may be reallocated and assessed to all Assessment Units as a common expense and shall continue to be the personal obligation of the person who was the Owner of such Lot at the time when the assessment fell due. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure shall relieve any 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.
ARTICLE V
INSURANCE
Section 1. Insurance on Maintenance Property. The Association shall maintain insurance covering all insurable improvements located or constructed upon the Maintenance Property. 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,
(a) A policy of property insurance covering all insurable improvements located on the Maintenance Property, with a "Replacement Cost Endorsement" providing that any claim shall be settled on a full replacement cost basis without deduction for depreciation, and including an "lnflation Guard Endorsement" and an "Agreed Amount
Book 4387 Page 420
Endorsement." The Association may also purchase a "Demolition Endorsement," an "lncreased Cost of Construction Endorsement," a "Contingent Liability from Operation of Building Laws Endorsement" or the equivalent, and/or coverage on personal property owned by the Association. Such insurance as maintained by the Association pursuant to this subsection shall afford protection against at least the following:
(1) loss or damage by fire and other peril normally covered by the standard extended coverage endorsement; and
(2) 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.
(b) A comprehensive policy of public liability insurance covering all of the Maintenance Property, insuring the Association in an amount not less than $1,000,000.00 covering bodily 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 and use of the Maintenance Property, 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, garagekeeper's liability, liability for property of others, host liquor liability, water damage liability, contractual liability, workmen's compensation insurance for employees of the Association, and such other risks as shall customarily be covered with respect to projects similar in construction, location, and use.
(c) A policy providing adequate 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. 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.
Book 4387 Page 421
(d) If the Maintenance Property 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 Maintenance Property has been made available under the National Flood Insurance Program, then such a policy of flood insurance on the Maintenance Property in an amount at least equal to the lesser of:
(l) 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) A policy providing errors and omissions of officers and directors of the Association, in such amounts and containing such provisions as may from time to time be deemed necessary or desirable by the Board of Directors of the Association.
All such policies of insurance shall contain waivers of subrogation and waivers of any defense based on invalidity arising from any acts of a Member of the Association and shall provide that the policies may not be cancelled or substantially modified without at least thirty (30) days' prior written notice to the insured, as well as to the First Mortgagees of each Lot. Duplicate originals of all policies and renewals thereof, together with proof of payment of premiums, shall be delivered to any First Mortgagee of a Lot upon written request. The insurance shall be carried in blanket forms naming the Association, as the insured, 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 such Owner's membership in the Association.
Section 2. Damage to Maintenance Property. In the event of damage to or destruction of all or a portion of the Maintenance Property 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 Maintenance Property damage or destruction are insufficient to repair and reconstruct the damage or destruction, the Association shall cause such Maintenance Property to be promptly repaired and reconstructed, using the insurance proceeds and the proceeds of a special assessment which, notwithstanding the provisions of Article IV, Section 4 to the contrary, may be levied without a vote of the Members. The amount of such assessment shall be equal to the amount by which the cost of repair or reconstruction
Book 4387 Page 422
exceeds the sum of the insurance proceeds available and shall be assessed equally for each Assessment Unit. The 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 3. 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.
Section 4. 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.
ARTICLE VI
RESTRICTIONS
Section 1. General Plan. It is the intention of the Declarant to establish and impose a general plan for the improvement, development, and use of the Properties, in order to enhance the value, desirability, and attractiveness of the Properties.
Section 2. Restrictions Imposed. The Declarant hereby declares that the Properties shall be held and shall henceforth be sold, conveyed, used, improved, owned, and hypothecated upon, subject to the following provisions, conditions, limitations, restrictions, agreement, and covenants.
Section 3. Use of Properties.
(a) No use shall be made of the Properties which will in any manner violate the statutes, rules or regulations of any governmental authority having jurisdiction over the Properties.
(b) All Lots and improvements thereon shall be used for residential purposes only, subject to Section 4 of Article VI below, and in compliance with all applicable zoning regulations, governmental laws, ordinances and regulations and the final recorded plat of Smoky Ridge Subdivision, or amendments thereto.
Book 4387 Page 423
(c) No Owner shall place any structure whatsoever upon the Maintenance Property, except as provided herein, nor shall any Owner engage in any activity which will temporarily or permanently deny free access to any part of the Maintenance Property to all Members.
(d) The use of the Maintenance Property shall be subject to such rules and regulations as may be adopted from time to time by the Board of Directors of the Association.
(e) No use shall ever be made of the Maintenance Property which will deny ingress and egress to those Owners having access to a public street or to their Lots, only over Maintenance Property, and said rights of ingress and egress to all Lots are hereby expressly granted.
Section 4. Declarant's Use. Notwithstanding anything to the contrary contained in this Declaration, it shall be expressly permissible and proper for Declarant and any Participating Builder, their employees, agents, and contractors, to perform such reasonable activities, and to maintain on the Lots, such facilities as Declarant or such Participating builder deems reasonably necessary or incidental to the construction on and sale of Lots, and development of the Properties, specifically including without limiting the generality of the foregoing, maintaining business offices, maintenance facilities, storage areas, construction yards and equipment, signs, model units, sales offices, parking areas and lighting facilities. Furthermore, Declarant shall be entitled to use a Residence constructed upon a Lot for the purpose of maintaining and servicing Lots and Residences which are owned by Declarant and rented to third parties. 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 unreasonably interfere with the use, enjoyment or access of such Owner, his family members, guests or invitees of and to his Lot, parking areas, any facilities existing upon the Maintenance Property, and to a public right of way.
Section 5. Household Pets. No animals, livestock, poultry or bees, of any kind, shall be raised, bred, kept or boarded on any of the Lots except that dogs, cats, or other domestic household pets may be kept, provided that they are not kept, bred or maintained for any commercial purposes, and provided that they are kept in compliance with any applicable governmental ordinances of laws. Permitted household pets must be kept within the boundaries of the Lot unless accompanied by and under the leash control of the owner of the pet. Notwithstanding the foregoing, no more than two pets may be kept on a single Lot. Owners of Lots may take permitted household pets upon the Maintenance Property if such animals are controlled on a leash or similar
Book 4387 Page 424
device, subject to the obligation of each such Owner to immediately remove and dispose of all of such animal's solid bodily wastes and to the rules and regulations of the Association.
Section 6. Temporary Structures. Except as hereinafter provided, no structure of a temporary character, including but not limited to a house trailer, tent, shack, garage, or outbuilding shall be placed or erected upon any part of the Properties. However, this covenant shall not restrict the Declarant, a Participating Builder, or a building contractor retained or approved by either one of them from maintaining a temporary office, trailer, tool shed, lumber shed, and/or sales office on a Lot for the purpose of construction on or for the selling of the Lots. In no event shall any temporary structure be located on the Maintenance Property. The approval of the Architectural Control Committee shall be obtained prior to the placement of such temporary office, trailer, tool shed, lumber shed, and/or sales office on any part of the Properties. The work of constructing, altering, or remodeling any improvement on the Properties shall be prosecuted diligently from the commencement thereof until the completion thereof.
Section 7. Signs and Advertising. No signs, billboards, or other advertising structures of any kind shall be erected, constructed, or maintained on the Properties for any purpose whatsoever; provided, however, that an Owner may erect on his Lot standard for sale or rental signs or others approved in writing on a case by case basis by the Committee. Notwithstanding the foregoing, signs, billboards, or other advertising structures used by the Declarant or any Participating Builder in connection with its sale or rental of Lots and/or Residences otherwise in connection with the development of the Properties, shall be permissible, provided that such use shall not interfere with the Owners' use and enjoyment of the Maintenance Property, with their Lot, or with their ingress and egress from a public way to the Maintenance Property, or their Lot.
Section 8. Miscellaneous Structures. No tanks of any kind, elevated or buried, shall be erected, placed or permitted upon the Properties.
Section 9. Vehicular Parking, Storage and Repairs.
(a) No portion of the Properties, including but mot limited to streets, drives, or parking areas, unless specifically designated by the Board of Directors of the Association, therefor, or any Lot shall be used as a parking, storage, display, or accommodation area for any type of house trailer, camping trailer, boat trailer, hauling trailer, running gear, boat, or accessories thereto, truck larger than 3/4 ton, or self-contained motorized recreational vehicle, except as a temporary expedience for load-
Book 4387 Page 425
ing, delivery, or emergency. No such vehicle shall be stored or parked on any Lot except in an enclosed garage or screened from the view of any other Lots, streets, or other portion of the Properties by fence or other structure approved by the Committee. This restriction, however, shall not restrict trucks or other commercial vehicles upon the Properties which are necessary for the construction, delivery, or installation of Residences or for the maintenance of the Maintenance Property, Lots or any improvements located on the Properties.
(b) No abandoned or inoperable automobiles or vehicles of any kind shall be stored or parked on any portion of 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.
(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 on any portion of the Properties, except in a garage with the garage door closed.
Section 10. Nuisances. No nuisance shall be permitted on the Properties, nor any use or practice which is the source of annoyance to residents or which interferes with the peaceful enjoyment or possession and proper use of the Properties, or any portion thereof. As used herein, the term "nuisance" shall not include any activities of Declarant or any Participating Builder which are reasonably necessary to the development of and construction of the Properties. Such activities of the Declarant or a Participating Builder shall not unreasonably interfere with any Owner's use and enjoyment of his Lot or with any Owner's ingress and egress to or from his Lot and a public way. The Properties shall be kept in a clean and sanitary condition, and no rubbish, refuse, litter, junk or garbage shall be allowed to accumulate,
Book 4387 Page 426
nor any fire hazard to exist. Further, no immoral, improper, offensive or unlawful use shall be permitted or made of the Properties or any portion thereof, nor shall any activities be carried on which use or require the use of any type of lethal and dangerous weapon. All valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the Properties or any portion thereof, shall be observed.
Section 11. Underground Utility Lines. All electric, television, radio, and telephone line installations and connections on the Properties shall be placed underground, except that during the construction or installation of a Residence the contractor or builder may install a temporary overhead utility line which shall be promptly removed upon completion of construction.
Section 12. 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 within 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 a safe and well-designed interior fireplace, or except such campfires or picnic fires on property designated for such use by the Association.
Section 13. No Annoying Light, Sounds, or Odors. No light shall be emitted from the Properties which is unreasonably bright or causes unreasonable glare: no sound shall be emitted from the Properties which is unreasonably loud or annoying: and no odor shall be emitted from the Properties which is noxious or offensive to others.
Section 14. Trash. No garbage, trash, debris, rubbish, or cuttings shall be placed or deposited on any street, driveway, or Lot except in trash containers which may be placed curb side on the day of trash collection. All equipment for the lawful storage and disposal of such material shall be kept in a clean and sanitary condition. The burning of trash and garbage in outside incinerators, barbeque pits, or the like is prohibited.
Section 15. Clothes Lines and Storage. The placement of clothes lines on any Lot shall be prohibited unless approved by the Architectural Control Committee. Woodpiles and storage areas shall not be visible from any Residence, Lot, street, or the Maintenance Property and shall be subject to rules promulgated by the Association.
Section 16. Commercial Activity. No store, office or other place of business of any kind shall be erected nor any commercial activity permitted on any of the Lots or improvements
Book 4387 Page 427
thereon or any part thereof, except by Declarant, Participating Builders, or their authorized designee for the purpose of the sale of Late or constructing improvements on the Lots.
Section 17. Resubdivision. No Lot may be resubdivided by an Owner without the written consent of the Association and the County of Arapahoe, State of Colorado.
Section 18. Prohibitions. No person shall damage or commit waste on or to the Properties. Nothing shall be done within the Properties which would impair the structural integrity of any improvement located on any Lot.
Section 19. Mineral Exploration. No portion of the Properties shall be used to explore for or to remove any soil, hydrocarbons, or other materials or minerals of any sorts provided, however, that the Association may allow exploration for water if, in its sole and arbitrary discretion, it so elects.
Section 20. Drainage. No watering by any Owner on such Owner's Lot shall be allowed to adversely affect the Lot of any other Owner.
Section 21. Leases. Any Owner shall have the right to lease all, but not less than all, of the Owner's Lot upon such terms and conditions as the Owner may deem advisable, subject to the following. Any such lease shall be in writing and shall provide that the lease and the lessee are subject to the terms of this Declaration and that the premises shall be used for residential purposes only. Any failure of a lessee to abide by the terms of this Declaration shall be a default under the lease. An owner shall be responsible for any default of a lessee under this Declaration.
Section 22. Set Back Requirements. The set back requirements on each Lot shall be as shown on the final recorded plat or plats of the Smoky Ridge Subdivision or amendments thereto.
Section 23. Street Lighting. All Lots are subject to and bound by the appropriate governmental agency regulations and/or Intermountain Rural Electric Association tariffs which are on file with the Public Utilities Commission of Colorado. These tariffs relate to, among other things, street lighting in the Smoky Ridge Subdivision with rates, rules and regulations therein provided and subject to all future amendments and changes thereto. Each Owner shall pay as billed a portion of the cost of public street lighting in the Smoky Ridge Subdivision according to Intermountain Rural Electric Association rates, rules and regulations, including future amendments and changes on file with the Public Utilities Commission of the State of Colorado.
Book 4387 Page 428
Section 24. Maintenance by Owner. The Lot and any structures or improvements constructed on a Lot shall be maintained by the Owner in a neat, safe and attractive manner in accordance with this Declaration. Each Owner also shall be responsible for the maintenance of the portion of any easement, and any improvements located thereon, situated within such Owner's Lot except for those improvements for which a public authority or utility company is responsible. Upon an Owner's failure to maintain the Lot in a neat, safe, and attractive manner, the Association may, at its sole discretion, give written notice to the Owner, requesting that the same be improved or otherwise maintained.
Section 25. Rules and Regulations. Rules and regulations concerning and governing use of the Properties, may be adopted, amended and 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 or for the violation of any provision of this Declaration, the Articles of Incorporation or Bylaws of the Associations provided, however, that copies of such rules and regulations shall be furnished to Owners and shall be uniform and non-discriminatory except to the extent that such rules and regulations concern discretionary rights given to the Association or its Board of Directors in this Declaration, the Articles of Incorporation or Bylaws of the Association.
ARTICLE VII
BASEMENTS
Section 1. Easement for Encroachments. If any portion of a Residence or improvement encroaches upon the Maintenance Property, including any future encroachments arising or resulting from the repair or reconstruction of a Residence or improvements subsequent to their damage, destruction or condemnation, and such encroachment is minor and inadvertent, a valid easement on the surface and for subsurface support below such surface and for the maintenance of same, so
long as it stands, shall and does exist for such encroachment.
Section 2. Maintenance Easement. An easement is hereby granted to the Association, its officers, agents, employees and assigns upon, across, over, in and under the Maintenance Property, as may be necessary or appropriate to perform the duties and functions which it is obligated or permitted to perform pursuant to this Declaration.
Section 3. Utilities. Easements and rights-of-way for lighting, heating, electricity, gas, telephone, water, and any other kind of public or quasi-public utility service shall be
Book 4387 Page 429
reserved as shown on the final recorded plat or plats of the Smoky Ridge Subdivision or amendments thereto. The Declarant, Participating Builders, or their nominees shall have the right to construct, operate, and maintain water, sewer, gas, and telephone lines over and across any portion of such reserved easements or rights-of-way that may be required for the development of the Properties or any area adjacent to the Properties. No Owner shall obstruct or interfere with any easement reserved hereunder. 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 Maintenance Property, without conflicting with the terms hereof a provided, however, that such right and authority shall cease and determine upon conveyance by Declarant of the last Lot to the first Owner thereof (other than Declarant or a Participating Builder). The easement provided for in this Section 3 shall in no way affect, avoid, extinguish or modify any other recorded easement(s) on the Properties.
Section 4. Rights of Declarant and Participating Builders Incident to Construction. An easement is hereby retained by and granted to Declarant and any Participating Builder for access, ingress, and egress over, in, upon, under, and across the Maintenance Property, 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 or any such Participating Builder'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, tenants, or invitees, to or of that Owner's Lot or any improvements upon the Maintenance Property.
Section 5. Easements Deemed Created. All conveyances of Lots hereafter made, whether by the Declarant or otherwise, shall be construed to grant and reserve the easements contained in this Article VII, even though no specific reference to such easements or to this Article VII appears in the instrument of such conveyance.
ARTICLE VIII
FIRST MORTGAGEES
Section 1. Member and First Mortgagee Approval. Subject to the provisions of Article X, Sections 6(b) and 6(c) hereof, but notwithstanding anything to the contrary set forth elsewhere in this Declaration, the Association shall not unless it has obtained the prior written consent of at least two-thirds (2/3) of the Members other than Declarant, two thirds (2/3) of the
Book 4387 Page 430
Members including Declarant, and two-thirds (2/3) of the First Mortgagees of Lots (based upon one vote for each First Mortgage owned):
(a) by act or omission, change, waive, or abandon any scheme of architectural control, or enforcement thereof, as set forth in this Declaration,
(b) fail to maintain full current replacement cost fire and extended coverage insurance and liability insurance on the Maintenance Property,
(c) use hazard insurance proceeds for Maintenance Property property losses for purposes other than to repair, replace, or reconstruct such property,
(d) by act or omission, seek to abandon, partition, subdivide, encumber, sell, or transfer any 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 permitted in Section 2(e) of Article II, roads or other purposes consistent with the intended use of such property and reasonably necessary or useful for the proper maintenance or operation of the Properties or the Association),
(e) change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner;
(f) 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;
(i) voting rights;
(ii) assessments, assessment liens or subordination of such liens;
(iii) reserves for maintenance, repair and replacement of those elements of the Maintenance Property which must be maintained, repaired or replaced on a periodic basis;
(iv) insurance, including but not limited to fidelity bonds;
Book 4387 Page 431
(v) rights to use the Maintenance Property;
(vi) responsibility for maintenance and repair of any portion of the Maintenance Property;
(vii) expansion or contraction of the Properties or the addition, annexation or withdrawal of property to or from the Properties;
(viii) boundaries of any Lot;
(ix) interests in the Maintenance Property;
(x) convertibility of Lots or Residence into Maintenance Property or of Maintenance Property into Lots or Residences;
(xi) leasing of Residences;
(xii) imposition of any right of first refusal or similar restriction on the right of any Owner to sell, transfer or otherwise convey his Lot;
(xiii) any provisions which are for the express benefit of First Mortgagees, or insurers or guarantors of First Mortgages; or
(g) terminate professional management and assume self-management of the Association when professional management has previously been required by any First Mortgagee or insurer or guarantor of such a First Mortgage;
(h) terminate the legal status of the Properties as a planned unit development, provided that this subsection (8) shall not apply to amendments to this Declaration, the Articles of Incorporation or Bylaws of the Association made as a result of destruction, damage or condemnation of the Properties or improvements thereon;
(i) 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 specifications for the Properties and the construction of improvements thereon;
(j) terminate the legal status of the Properties after substantial destruction or a substantial taking in condemnation of the Properties.
Book 4387 Page 432
Section 2. Notice of Action. Upon written request to the Association1 identifying the name and address of the First Mortgagee or insurer or guarantor of the First Mortgage and the Residence address of the Property which is subject to such First Mortgage, each such First Mortgagee or insurer or guarantor of 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 Maintenance Property;
(b) any delinquency in the payment of assessments or charges under the Declaration or the Association's Articles of Incorporation or Bylaws owed to the Association by the Owner of a Lot which is subject to a First Mortgage where the Association has actual knowledge of such default and when such delinquency and/or default remains uncured for a period of sixty (60) days after notice from the Associations
(c) any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; and
(d) any proposed action which would require the consent of a specified percentage of First Mortgagees as provided in this Article VIII.
The Association's failure to notify one or more First Mortgagee of any of the foregoing shall not invalidate an action that otherwise has been properly taken and the Association shall not be liable for any damages caused by such failure.
Section 3. Financial Statement. The Association shall provide a financial statement for the immediately preceding fiscal year, free of charge to the party so requesting, to any First Mortgagee, or any insurer or guarantor of a First Mortgage, within a reasonable time after written request therefor by any such party.
ARTICLE IX
ARCHITECTURAL CONTROL COMMITTEE
Section 1. Committee Members. The Architectural Control Committee shall be composed of three persons who need not be Owners and shall be appointed by the Association's Board of Directors. The initial Committee member shall be Edward N. Slater, Richard D. Krull, and David W. VandenBrink. The Board of Directors shall have the right to remove and replace any Committee member, with or without cause, and fill any vacancy in the Committee.
Book 4387 Page 433
Section 2. Duties. It shall be the duty of the Architectural Control Committee and it shall have the power by the exercise of its best judgment to see that all structures, improvements, construction, decorating, and landscaping on the Properties conform to and harmonize with the existing surroundings and structures and otherwise conform with this Declaration.
Section 3. Review by Committee. No structure, including, without limitation, a Residence, accessory building, tennis court, swimming pool, antennae, flag pole, fence, mailbox, wall, exterior lighting, or other improvements, whether on a structure or on a Lot, shall be constructed or maintained upon any Lot and no alteration or repainting to the exterior of a structure shall be made and no landscaping performed to any portion of a Lot visible to any other Lot unless complete plans, specifications, and lot plans therefor shall have been submitted to and approved in writing by the Committee. The plans and specifications shall show, as applicable, the exterior design, height, building materials and color scheme thereof, the location of the structure plotted horizontally and vertically, the location and size of driveways, the general plan of landscaping, fencing, walls and windbreaks, the grading plan and such other items as the Committee shall request. No application shall be made to any governmental authority for a building permit prior to approval of plans by the Committee.
Section 4. Standards for Review. In approving or disapproving the plans submitted to it, the Committee shall take into consideration the design, style and construction of the proposed building, alteration or landscaping, its location on the Lot, the harmony of its design, architecture and location within the terrain and surrounding neighborhood and shall determine whether such proposed building, alteration or landscaping is consistent with the architecture and landscaping of other buildings and Lots located upon the Properties subject to this Declaration and whether the construction, installation, or alteration of said building or landscaping will adversely affect or decrease the value of other Lots because of its design, location, height or type of material used in construction. Plans for Residences which are modular or sectional homes submitted to the Committee shall not be disapproved merely because such home is modular or sectional and is not constructed on site. It is the intent of these Declarations that the Committee shall exercise broad discretion and powers hereunder and that its decision shall be final and conclusive.
Section 5. Standards for Residences. Each Residence erected, altered or placed upon any Lot shall be subject to the following minimum standards and restrictions:
(a) All Residences shall be detached single family dwellings;
Book 387 Page 434
(b) Each Residence shall have a cost of construction of not less than $35,000 based upon the costs of construction prevailing in the Denver metropolitan area on the date that this Declaration is recorded in the public records of Arapahoe County, State of Colorado. For purposes of determining the cost of construction for a modular or sectional home all costs associated with the purchase and placement of such home, including, without limitation, taxes, transportation, and installation costs, shall be included;
(c) No Residence shall have a ground floor area of less than 1,050 square feet for a one story Residence, nor less than 700 square feet for a Residence of more than one story, exclusive of open porches and garages, if any;
(d) No Residence shall exceed two stories in height nor have a garage designed to accommodate more than three automobiles.
Section 6. Procedures. The Committee shall approve or disapprove plans and specifications or request additional plans or other information within 30 days after complete plans and specifications are submitted. A majority vote of the members of the Architectural Control Committee is required for approval or disapproval of any proposed plans and specifications. The Committee may disapprove such plans and specifications if it determines insufficient or incomplete information has been submitted by the Owner. If the Committee fails to take any action within 30 days after all plans and specifications required hereunder have been submitted, approval shall not be required, and the Owner shall be deemed to have fully complied with this Article. All structures and landscaping shall be constructed, erected and maintained in strict accordance with approved plans and specifications and shall be completed within one year following commencement of work thereon. Construction shall commence within 180 days following approval by the Committee (or such later date as approved by the Committee).
Section 7. Committee Liability. The Architectural Control Committee and the members thereof shall not be liable for damages to any party by reason of any action, failure to act, or the approval, disapproval, or failure to approve or disapprove any plans and specifications submitted to them, and by accepting the deed to its Lot, each Owner waives any claim for any such damages.
Section 8. Records. The Committee shall maintain written records of all actions taken by it and shall require that a duplicate original of any plan approved by the Committee be deposited with the Committee for future reference.
Book 4387 Page 435
Section 9. Costs. The Committee shall have the right, but not the obligation, to hire consultants and experts to aid in its decision. The Committee shall have the right to require an Owner who is applying for Committee approval to pay a fee to the Committee; provided such fee shall not exceed the Committee's actual cost and expense incurred in reviewing the application, plans and specifications. No member of the Committee shall be compensated for acting as a member of the Committee.
Section 10. Rules. The Committee shall be entitled to promulgate reasonable rules and regulations concerning the use restrictions on the Lots and its operating procedures, review procedures and standards for review provided the rules and regulations are consistent with this Declaration.
ARTICLE X
GENERAL PROVISIONS
Section 1. Enforcement. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, including injunctive relief, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Declaration and shall be entitled to be awarded its costs and reasonable attorney's fees. Failure by the Association, or any Owner, to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Section 2. Severability. Invalidation of any provision of this Declaration 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. Conflicts of Provisions. In case of any conflict between this Declaration and any applicable laws, ordinances, rules, or regulations of any governmental entity, then the higher standard shall control. 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 4. Annexation. Additional real property and/or Maintenance Property may be annexed to the Properties pursuant to the procedure established in Section 1 of Article VIII and subject to Section 8 of Article X.
Book 4387 Page 436
Section 5. Condemnation.
(a) In the event proceedings are initiated by any government or agency thereof, seeking to take by eminent domain the Maintenance Property, any material part thereof or any interest therein, any improvement thereon, or any material interest therein, the Association shall give prompt notice thereof, including a description of the part of or interest in the Maintenance Property or improvement thereon sought to be so condemned, to all First Mortgagees of Lots, all insurers and guarantors of First Mortgages, all Members, and to the Declarant. The Association shall have full power and authority to defend in said proceedings, and if practicable to represent the Owners in any negotiations, settlements and agreements with a condemning authority for acquisition of the Maintenance Property or part thereof, as the attorney-in-fact for the Owners (the Owners, by their acceptance of a deed or other instrument of conveyance hereby constitute and appoint the Association their attorney-in-fact for such purposes), but the Association shall not enter into any such proceedings, settlement or agreements, pursuant to which the Maintenance Property or any part thereof or any interest therein, or any improvement thereon or any part thereof or any interest therein, is relinquished, without giving all first mortgagees of Lots, all Members, and Declarant at least fifteen (15) days prior written notice thereof.
(b) In the event, following such proceedings, there is such a taking in condemnation or by eminent domain of a part or all of the Maintenance Property, the award made for such taking, if such award is sufficient to repair and restore the Maintenance Property, shall be applied by the Association to such repair and restoration. If such award is insufficient to repair and restore the Maintenance Property, or if the full amount of such award is not expended to repair and restore the Maintenance Property, the Association shall disburse the net proceeds in equal shares to the Owners provided that the Association shall first pay out of the share of each Owner the amount of any unpaid liens or encumbrances on his Lot in the order of the priority of such liens or encumbrances. No provision of this Declaration or of any other documents 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 an Owner of insurance proceeds or condemnation award for losses to or taking of Maintenance Property.
Book 387 Page 437
Section 6. Duration, Revocation, and Amendment.
(a) Each and every provision of this Declaration shall run with and bind the land for a term of thirty (30) years from the date of recording of this Declaration, after which time this Declaration shall be automatically extended for five successive period of ten (10) years each. Except as otherwise provided, and subject to Section 8 of Article X, this Declaration may be amended during the initial thirty (30) year period, and during subsequent extensions thereof, by an instrument approved in writing by not less than fifty-one percent (51%) of the Members. Such amendment shall be effective when duly recorded in the County of Arapahoe, 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, 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 of Lots. 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 Declarant's reserved right to appoint the Board of Directors of the Association as provided in Article III, Section 3 hereof; and each such amendment must contain thereon the written approval of the VA or HUD.
(c) Declarant hereby reserves and is granted the right and power to record technical amendments to this Declaration at any time prior to the termination of the Declarant's reserved right to appoint the Board of Directors of the Association as provided in Article III, Section 3 hereof for the purposes of correcting spelling, grammar, dates or as is otherwise necessary to clarify the meaning of the provisions of this Declaration.
Section 7. Registration by Owner of Mailing Address. Each Owner and first mortgagee of a Lot and each insurer 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 shall be sent by either registered or certified mail, postage prepaid, addressed in the name of the Owner at such registered mailing address. If an Owner has not registered a mailing address it shall be deemed to be the address of the Lot. All notice, demands, or other notices intended to be served upon
Book 4387 Page 438
the Board of Director, of the Association or the Association shall be sent by certified mail, postage prepaid, to _______________ until such address is changed by the Association.
Section 8. FHA/VA Approval. As long as Declarant controls the Association, the following actions shall require the prior approval of the Federal Housing Administration of the U.S. Department of Housing and Urban Development or the Veterans Administration: annexation of additional properties, dedication of Maintenance Property, and amendment of this Declaration
Section 9. Dedication of Maintenance Property. Declarant in recording this Declaration, has designated certain areas of land as Maintenance Property intended for he common use and enjoyment of Owners for recreation and other related activities. The Maintenance Property 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.
Section 10. Superceding Effect. The Declaration of Conditions, Restrictions and Protective Covenants for Smoky Ridge Subdivision, dated August 15, 1983, and recorded in the office of the Clerk and Recorder of Arapahoe County, Colorado on December 8, 1983, in Book 4036 at Page 535, is hereby terminated, removed, and of no further force and effect and is superseded in its entirety by this Declaration.
Section 11. Captions. The captions herein are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Declaration or the intent of any provision hereof.
Section 12. Gender. The use of any gender in this Declaration shall be deemed to refer to the other gender, and the use of the singular shall be deemed to refer to the plural, and vice versa, when the context so requires.
Section 13. Claims. No claim or cause of action shall accrue in favor of any person in the event of the invalidity of any provision of this Declaration or for failure of the Association or Declarant to enforce any provision hereof. This Section may be pleaded as a full bar to the maintenance of any suit, action, or arbitration brought in violation of this provision.
Section 14. Successors. All rights of Declarant may be transferred to a successor Declarant if such successor is specifically assigned the rights of Declarant by Declarant.
Section 15. Claims Against Declarant. Any and all claims, demands and lawsuits against Declarant and his agents by any Owner, the Association or any other party concerning the Properties, and construction of improvements thereon, shall be
Book 4387 Page 439
deemed waived unless asserted within one year from the earlier of: (a) the date the entity or person becomes an Owner or (b) the date Declarant's right to appoint the Association's Board of Directors terminates pursuant to Article III, Section 3.
Section 16. Compulsory Arbitration.
(a) Agreement to Arbitrate. All controversies, claims and matters of difference, including all questions concerning whether the right to arbitrate any question exists, excepting those matters for which this Declaration specifically provides another method of settlement or enforcement, arising between or among the Owners or between the Owners and the Association shall, at the option of the Association (whether or not it is a party to such matter), be settled by arbitration in Arapahoe County, Colorado, according to the rules and practices of the American Arbitration Association from time to time in force. This submission and agreement to arbitrate shall be specifically enforceable. Arbitration may proceed in the absence of either party if notice of the proceedings has been given to such party.
(b) Awards. The parties agree to abide by all awards rendered in such proceedings. All awards shall be final and binding on all parties to the extent and in the manner provided by the Colorado Rules of Civil Procedure. The costs of arbitration, including reasonable attorney's fees, shall be borne by the losing party thereto unless the arbitrators specify otherwise. All awards of the arbitrators may be filed with the Clerk of the District Court of Arapahoe County, Colorado, as a basis of judgment and for the issuance of execution, and, at the election of the party making such filing, with the clerk of one or more other courts, state or federal, having jurisdiction over the party against whom such an award is rendered or its property. No party shall be considered in default hereunder during the pendency of arbitration proceedings relating to such default.
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.
Book 4387 Page 440
"DECLARANT"
Smoky Ridge Corporation,
a Colorado corporation
ATTEST:
______________________ By:________________________
Secretary Its:________________________
STATE OF COLORADO )
)
COUNTY OF ____________)
The foregoing instrument was acknowledged before me in the County of ______, State of Colorado, this ____ day of _____________, 1985, by ________________________ as __________________________ of SMOKY RIDGE CORPORATION, a Colorado corporation.
WITNESS my hand and official seal.
My commission expires: ____________________
______________________________
Notary Public
Book 4387 Page 441
EXHIBIT A
TO
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
SMOKY RIDGE SUBDIVISION
Legal Description of the Properties
Smoky Ridge according to the plat thereof recorded in Arapahoe County, Colorado
Book 4387 Page 442
EXHIBIT B
TO
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
SMOKY RIDGE SUBDIVISION
Legal Description of the Maintenance Property
Tracts A, B, C and D Smoky Ridge according to the recorded Plat thereof Arapahoe County, Colorado
Posted
by smokyr on 11/21/2000
- Advertise Here!
-
Promote Your Business or Product for $10/mo
For just $10/mo you can promote your business or product directly to nearby residents. Buy 12 months and save 50%!
