Summit Park Townhomes
Summit Park Declaration
Declaration
reception 2242155 Marjorie Page, Recorder BOOK 3784 PAGE 225 (thru 259)
DECLARATION
OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
SUMMIT PARK TOWNHOMES
THIS DECLARATION, made and entered into this 25th day of January 1983, by M.Q.P. Corp., a
Colorado corporation, herein after referred to as "Declarant".
WITNESSETH:
WHEREAS, Declarant is the owner of that certain real property in the County of Arapahoe, State of Colorado, which is described on Exhibit A attached hereto and incorporated herein by the reference.
NOW, THEREFORE, Declarant hereby declares that all of the properties described above shall be
held, sold, and conveyed subject to the following easements, restrictions, convenience, and conditions which are for the purpose of protecting the value and desirability of, and which shall run with, the above-described properties and be binding on all parties having any right, title, or interest in the above-described properties or and part thereof, their heirs, successors, and assigns, and shall inure to the benefit of each owner thereof.
ARTICLE I
DEFINITIONS
Section 1. "Association" shall mean and refer to Summit Park Townhomes Association, Inc., A
Colorado non-profit corporation, its successors and assigns.
Section 2. "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, as said term is hereinafter defined, including
Contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
Section 3. "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 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 first Lot is described on Exhibit B attached hereto and incorporated herein by this reference.
Section 5. "Lot" shall mean and refer to any numbered plot of land shown upon any recorded
subdivision map of the Properties, with the exception of the Common Area, Common Property, as hereinafter defined, and any public streets, but together with all appurtenances and improvements now or hereafter thereon.
Section 6. "Declarant" shall mean and refer to M.Q.P. Corp., a Colorado corporation, its successors and assigns if such successors or assigns should acquire more than on undeveloped Lot from the Declarant for the purpose of development.
Section 7. "Member" shall mean and refer to each Owner of a Lot that is subject to assessment;
membership in the Association shall be appurtenant to, and may not be separated from, ownership of a Lot.
Section 8. "Architectural Control Committee" shall mean the committee appointed by Declarant or by the Board of Directors of Summit Park Townhomes Association, Inc.
Section 9. "First Mortgagee" 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 Arapahos County, Colorado, having priority of record over all other recorded liens, except those governmental liens made superior by statute (such as general ad valorem tax liens made superior by statute (such as general ad advalorem tax liens and special assessments). "First Mortgage" 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 Arapahoe County, Colorado show the said Administrator as having the record title to the Lot.
Section 10. "First Mortgagee" shall mean and refer to any person named as a mortgagee or beneficiary under and First Mortgage (including 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 Arapahoe County, Colorado show the said Administrator as having the record tittle to the Lot), or any successor to the interest of any such person under such First Mortgage.
Section 11. "Master Declaration" shall mean and refer to the Master Declaration of Covenants,
Conditions and Restrictions of Summit Park, which has been executed by Declarant and record in the office of the Clerk and Recorder of the County of Arapahoe, State of Colorado.
Section 12. "Master Association" shall mean and refer to the Summit Park Community Association, Inc., a Colorado non-profit corporation, created pursuant to the Master Declaration, its successors and assigns.
Section 13. "Common Property" shall mean and refer to all property (including improvements thereto) owned by the Master Association for the common use and enjoyment of the members thereof.
ARTICLE II
PROPERTY RIGHTS IN THE COMMON AREA
Section 1. Owners' Easements of Enjoyment. Subject to the provisions of Section 2 of the Article, ever 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
© 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 for the use of any recreational facilities; 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 within the Common Area, 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 all or any part of the Common Area to the Master Association, 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 thereunder, 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 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 Common Area while maintaining, repairing and making replacements in the Common Area.
Section 3. Delegation of Use. Any Owner may delegate, in accordance with the Bylaws, 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.
Section 4. Payment of Taxes or Insurance by Mortgagees. First Mortgagees of Lots shall have the right, jointly or singly, to pay taxed 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 it the Mortgagees 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 shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot.
Section 2. Classes 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. Each Class A Member shall be entitled to one vote for each Lot owned. When more than one person holds a 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 shall be Declarant and such Class B Member shall be entitled to three (3) votes for each Lot owned which is neither leased, nor rented, nor otherwise occupied as a residence. Leasing, renting, or allowing entry for residential occupancy shall terminate the Declarant weighted voting advantage in relation to any Lot so leased, rented, or occupied as a residence, and will limit Declarant in relation to any such Lots to the same voting rights as a Class A Member. The Class 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; or
(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
© in the event that there is neither any new residence construction initiated nor evidence of any continuing construction, within the Properties, for a continuous period of six (6) months.
(no Class B member left)
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS
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 charge on the land and shall 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 cost and expenses 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 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 against such 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, cost, 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 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 any Lot 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 and welfare of the residents of the Properties, 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 providing for blanket hazard insurance coverage on the
Structures located on each Lot, as more fully provided in Article VI Section 2 hereof, and for the
Improvement and maintenance of the Common Area.
Section 3. Maximum Annual Assessment. Until commencement of the second annual assessment
period, the maximum annual assessment shall be Six Hundred Twenty-Four Dollars ($624.00) per 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 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 November: 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 by a vote of the Members for the next succeeding one (1) year and at the end of each such one (1) year period, for each succeeding period of one (1) year, provided that any such increase shall have the 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 thirty (30) days nor more than sixty (60) days in advance of such meeting setting forth the purpose therefor.
(c) Subject to the provisions of Section 7 of this Article IV pertaining to Declarant’s obligation to subsidize the Association for shortfalls in assessments, the Board of Directors of the Association may, at any time and from time to time, after consideration of the projected maintenance costs and the other financial needs of the Association, fix the actual assessment against each Lot 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 an 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 against each Lot upon written notification thereof to each Owner, provided that the amount of the actual assessment against each Lot shall not be increased to an amount in excess of the maximum annual assessment for that annual assessment period.
(d) 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 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 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.
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 an action authorized under Sections 3 or 4 of this Article shall be sent to all Members not less than thirty (30) days or more than sixty (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, other meetings may be called subject to the same notice requirement, and the required quorum at each such subsequent meeting shall be one-half (½) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (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 residences or improvements on Lots or 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 residences or improvements. All such reconstruction assessments shall be equal to the amount by which the cost of repair or reconstruction of such residence(s) or improvements exceeds the sum of the insurance proceeds awarded for the damage or destruction thereof. Such reconstruction assessments shall be assessed equally against each Lot and shall be due and payable as provided by resolution of the Board of Directors, but not sooner than thirty (30) days after written notice thereof; provided, however, that the Association may proceed directly against any responsible Owner pursuant to Article IX, Section 4 hereof.
Section 7. Uniform Rate of Assessment. Annual, special and reconstruction assessments must be fixed at a uniform rate for all Lots sufficient to meet the expected needs of the Association, provided that, notwithstanding any provision to the contrary contained in this Declaration, the rate of annual and special assessments set for the Lots owned by Declarant which are neither leased, rented, nor otherwise occupied as a residence shall be fixed at one-quarter (1/4) of the assessment rate for the other Lots. In the event that, prior to the termination of the Class B membership, 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 assessment, then Declarant shall pay a sufficient amount, up to the amount of full parity on such assessment, to the Association to meet any such shortfall so long as (a) written notice must be given by the Association 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, including, without limitation, the levying of any common expense assessments in an amount less than the maximum for any common expense assessment period, which amount is established subsequent to the termination of the Class B membership, unless the same has previously been approved in writing by Declarant; and further provided, that at the time any Lot owned by Declarant is leased, rented, or occupied as a residence, that Lot shall be assessed at the uniform rate of assessment for privately owned Lots.
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 first Lot by Declarant to an Owner other than Declarant, 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 (12) monthly installments per annum on such dates as determined by the Board, 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 not paid within ten (10) days after the due date thereof shall bear interest from the due date at the rate of twelve percent (12%) 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 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 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 Common Area or abandonment of his Lot.
Section 10. Working Fund. The Association or Declarant shall require the first Owner of any Lot who purchases that Lot from Declarant to make a non-refundable payment to the Association in an amount equal to two (2) times the monthly installment of the maximum annual common expense assessment in effect at the closing thereof, which sum shall be held by the Association as a Working Fund. Said payment shall be collected and transferred to the Association at the time of the closing of acquisition of such Lot and shall be maintained in a segregated account for the use and benefit of the Association. Such payment 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 an amount equal to that portion of the first private Owner’s payment into the Working Fund which remains in the account, which amount shall be calculated by multiplying such first private Owner’s payment to the Working Fund by a fraction, the numerator of which is equal to the amount in the fund as of the date of the Association’s last financial statement (or, if readily available, such amount as of a more current date) and the denominator of which is equal to the total amount which would have been in such account had there been no expenditures as of such date.
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, including without limitation any executory land sales contract wherein the Administrator of Veterans Affairs (Veterans Administration) is seller, whether such contract is owned by the Veterans Administration or its assigns, and whether such contract is recorded or not. 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, or cancellation or forfeiture of any such executory land sales contract, 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, including deed in lieu of foreclosure, or cancellation or forfeiture of any such executory land sales contract; 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 reallocated and assessed to all Lots as a common expense. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure, nor cancellation or forfeiture of any such executory land sales contract, 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.
Section 12. Subordination of the Lien to Lien of Master Association. 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 amounts, shall be subordinate to the lien of the Master Association, in accordance with the Master Declaration.
ARTICLE V
ARCHITECTURAL CONTROL COMMITTEE
Section 1. Composition of Committee. The Architectural Control Committee shall consist of three (3) persons appointed by the Board of Directors of the Association; provided, however, that until the entire project is completed and all Lots have been conveyed to the first Owner thereof (other than Declarant), Declarant shall appoint the Architectural Control Committee. 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, garage, carport, any accessory building, a tennis court, a swimming pool, fences, walls, exterior lighting facilities, recreational or athletic facility, or other similar improvements or attachments, shall be constructed upon the Properties, except upon the Common Property, and no alteration of the exterior of a structure shall be made and no change in the final grade, nor the installation of any landscaping to any part of the Properties, except the Common Property, shall be performed, unless complete plans and specification 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 the grading plan) shall have been first submitted to and approved in writing by the Architectural Control Committee. The Architectural Control Committee shall exercise its best judgment to the end that all attachments, improvements, construction, landscaping and alterations to structures and on lands located within the Properties conform to and harmonize with the existing surroundings and structures.
Section 3. Procedures. The Architectural Control Committee shall approve or disapprove all plans within thirty (30) days after submission. In the event the Architectural Control Committee fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with.
Section 4. Vote. A majority vote of the Architectural Control Committee is required to approve a proposed change or improvement, unless the Committee has designated a representative to act for it, in which case the decision of the representative shall control.
Section 5. Records. The Architectural Control Committee 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 reasonable hours of the business day.
Section 6. Liability. The Architectural Control Committee and the members thereof 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 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 injurious to the other property or improvements in the neighborhood and shall not militate against the general intent and purpose hereof.
Section 8. Minor Violations of Setback Restrictions. If upon the erection of any residence upon any of the Lots which are subject to these restrictions, 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 the Lots immediately adjoining the Lot upon which the violation or infringement occurs, and such waiver shall be binding upon all other Owners who are subject to this Declaration. Nothing herein contained 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.
ARTICLE VI
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:
(a) A policy of property insurance covering all insurable improvements located on the Common Area, with a "Replacement Cost Endorsement" providing that any claim will be settled on a full replacement cost basis without deduction for depreciation, and 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 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 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 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 Common Area, insuring the Association in an amount not less than $1,000,000 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 law suits related to employment contracts of the Association, and protection against liability for non-owned and hired automobile; 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.
(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.
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 any Lot. Duplicate originals of all policies and renewals thereof, together with proof of payment of premiums, shall be delivered to any First Mortgagee of any 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. Insurance on the Structures on Lots. The Board of Directors of the Association or its agent shall obtain and maintain, at all times with respect to residences located on Lots, insurance of the type and kind hereinafter provided, to the extent that such insurance is reasonably available: A policy of property insurance covering the residences located on each Lot with a "Replacement Cost Endorsement" providing that any claim will be settled on a full replacement cost basis without deduction for depreciation, and including an "Inflation Guard Endorsement" and an "Agreed Amount Endorsement." The Association may also purchase a "Demolition Endorsement," an "Increased Cost of Construction Endorsement" and/or a "Contingent Liability from Operation of Building Laws 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.
Such insurance shall be carried in blanket policy form naming the Association as insured, as trustee and attorney-in-fact for all Owners. The policy or policies shall contain a standard noncontributory 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. The Association shall furnish a certified copy of such blanket policy and a certificate identifying the interest of the Owner in question, to any party in interest upon request. All blanket policies of insurance shall provide that the insurance thereunder shall be invalidated or suspended only in respect to the interest of a particular Owner guilty of a breach of warranty, act, omission, negligence or non-compliance with any provision of such policy, including payment of the insurance premium applicable to that Owner’s interest, or who permits or fails to prevent the happening of any event whether occurring before or after a loss, which under the provisions of such policy would otherwise invalidate or suspend the entire policy, but the insurance under any such policy as to the interest of all other insured Owners not guilty of any such act or omission shall not be invalidated or suspended and shall remain in full force and effect.
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. Other Insurance to be Maintained by Owners. Insurance coverage on the furnishings and other items of personal property belonging to an Owner and public liability insurance coverage upon each Lot shall be the responsibility of the Owner thereof.
Section 5. 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 VII
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 and reconstruct the same, the damaged or destroyed Common Area shall be promptly repaired and reconstructed by the Association, using the insurance proceeds and the proceeds of a reconstruction assessment, unless two-thirds (2/3) of the Class A Members agree not to cause such damage and destruction to be repaired. The amount of such reconstruction assessment shall be equal to the amount by which the cost of repair or reconstruction exceeds the sum of the insurance proceeds available and shall be assessed equally against each Lot; provided, however, that in appropriate circumstances, the Association may proceed directly against the responsible Owner pursuant to Article IX, Section 4 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 2. Destruction of Improvements on Lot. In the event of damage or destruction to a residence 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 the applicable Owners and First Mortgagees as their interests may appear. "Repair and Reconstruction" of any residence located on a Lot, 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 residence having the same boundaries as before.
(a) If such insurance proceeds are sufficient to repair or reconstruct any damaged or destroyed residence, 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 the insurance proceeds are insufficient to repair or reconstruct any damaged or destroyed residence located on a Lot, such damage or destruction shall be promptly repaired and reconstructed by the Association, using the insurance proceeds and the proceeds of a reconstruction assessment. The amount of such reconstruction assessment shall be equal to the amount by which the cost of repair or reconstruction of such residence(s) exceeds the sum of the insurance proceeds allocable to such residence(s) and shall be assessed equally against each Lot; provided, however, that in appropriate circumstances, the Association may proceed directly against the responsible Owner pursuant to Article IX, Section 4 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.
ARTICLE VIII
PARTY WALLS
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 residences upon the Properties and is placed on or immediately adjacent to a Lot line.
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.
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.
ARTICLE IX
EXTERIOR MAINTENANCE
Section 1. General. The Association shall provide all maintenance, repair and replacement necessary upon the Common Area and all structures and other improvements located thereon. Each Owner shall provide all exterior maintenance, repair and replacement upon all improvements and structures located upon such Owner’s Lot, including, without limitation, the following: painting; repair; replacement and care of roofs; gutters, down spouts, exterior building surfaces, fences, walks, doors, windows, other glass surfaces and all other exterior improvements located upon such Owner’s Lot. In addition to the foregoing, each Owner is required to paint the exterior building surfaces of the residence located upon his Lot, not less often than once each three (3) years, commencing upon the conveyance of such Lot by the Declarant to the original Owner thereof other than Declarant. Such exterior surfaces shall be painted with paint of the same finish, color and hue as the original paint utilized in painting the same by the Declarant, unless the Architectural Control Committee authorizes the use of another color, in accordance with Article V hereof. Further, each Owner shall be responsible for arranging for and paying for the regular collection of all garbage and other refuse which accumulates within the residence on his or her Lot or otherwise on such Lot outside of such residence, provided that prior to contracting with or otherwise arranging for such garbage collection service, the entity providing such service must be approved in writing by the Board of Directors or managing agent of the Association in order to enable the Association to regulate the number of garbage collection vehicles within the Project and protect the paved surfaces therein. In the event any Owner does not provide such garbage collection, exterior maintenance, repair and replacement, as is required hereby, including without limitation, the painting of all exterior surfaces of the residence located on his Lot, the Association, acting through its Board of Directors, or managing agent, shall be entitled to undertake such garbage collection, maintenance, repair or replacement at such Owner’s expense and all costs, expenses and fees incurred by the Association for such maintenance, repair, and replacement shall be a personal obligation of the applicable Owner and shall be added to and become part of the Assessment to which such Owner’s Lot is subject and shall be a lien on such Owner’s Lot and the improvements thereon, and shall be enforceable and collected, as provided in Article IV hereof. Any damage occasioned to an adjoining Lot or improvement thereon caused by an Owner undertaking the foregoing obligations shall be the responsibility of the Owner performing the maintenance or repair.
Section 2. Maintenance of Landscaping. The Association shall be responsible for the landscaping and maintenance of the Common Area. Each Owner shall be responsible for the landscaping and maintenance of his Lot, including having the grass, weeds, trees and vegetation, located thereon, cut or trimmed when necessary. In the event any Owner does not provide such landscaping maintenance, as is required hereby, the Association, acting through its Board of Directors, or managing agent, shall be entitled to undertake such maintenance, repair or replacement at such Owner’s expense and all costs expenses and fees incurred by the Association shall be a personal debt of the applicable Owner and shall be added to and become part of the Assessment to which such Owner’s Lot is subject and shall be a lien on such Owner’s Lot and the improvements thereon, and shall be enforceable and collected, as provided in Article IV hereof. 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 3. Access Easement. Each Lot shall be subject to an easement in favor of the Association, the Master Association and the Owners of all adjoining Lots (including their agents, employees and contractors) for performing maintenance as provided in this Article IX and for performing maintenance in accordance with the Master Declaration during reasonable hour 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.
Section 4. Owner’s Negligence. Notwithstanding anything to the contrary contained in this Article IX, in the event that the need for maintenance or repair of the Common Area, a Lot, or any improvement 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 or repair 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 therefore, 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.
ARTICLE X
RESTRICTIONS
Section 1. General Plan. It is the intention of the Declarant to establish and impose a general plan for the improvement, development, use and occupancy of the Properties, all thereof in order to enhance the value, desirability, and attractiveness of the Properties and serve 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 upon, subject to the following provisions, conditions, limitations, restrictions, agreements, and covenants.
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 place any structure whatsoever upon the Common Area, nor shall any Owner engage in any activity which will temporarily or permanently deny free access to any part of the Common Area to all Members.
(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. Lots shall be used for residential purposes only; no business or profession of any nature shall be conducted on any Lot or in any structure constructed thereon, except as hereinafter provided. Notwithstanding the foregoing, Declarant may use Lots and residences erected thereon for show homes and sales offices, field construction offices, storage facilities, general business offices, and for parking areas incident to any of the aforesaid.
Section 5. Animals. No animals, livestock, poultry, or bees of any kind, shall be kept or maintained on any Lot, except that Owners may keep dogs, cats, fish, or other household pets so long as such pets are not kept for commercial purpose, do not make objectionable noises or are not kept in such number or manner as to otherwise constitute a nuisance or inconvenience to any residents of the Properties, and are kept in compliance with all existing applicable local ordinances. Each Owner shall be responsible for the immediate removal and disposal of all solid animal waste of his pet from his Lot or any other area within the Properties. No animals shall be permitted upon the Common Area or Common Property, except as controlled on a leash or similar device held by its Owner. The Association shall have, and is hereby given, the right and authority to reasonably determine that any household pets are being kept for commercial purposes, are making objectionable noises, or are being kept in such number or manner as to constitute a nuisance or inconvenience to any resident of the Properties, and to take such action or actions as it deems reasonably necessary to correct the same.
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 Lot, and no residence placed or erected upon any Lot 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 or alteration of a structure on any Lot, necessary temporary structures for storage of materials may be erected and maintained by the person doing such work. The work of constructing, altering, or remodeling any structure on any part of any Lot shall be prosecuted diligently from the commencement thereof until the completion thereof.
Section 7. Miscellaneous Restrictions.
(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" or "For Rent" sign not to exceed five (5) square feet. Notwithstanding the foregoing, Declarant shall be permitted to use larger and different signs such as will not unreasonably interfere with Owners’ use of the Common Area, until all Lots including Lots located on property annexed to the Properties are conveyed to the first Owner thereof (other than Declarant).
(b) Except as may otherwise be permitted by the Architectural Control Committee, 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 the improvement on any Lot.
(d) Except as may otherwise be permitted by the Architectural Control Committee, no fence shall be constructed, erected or maintained on any Lot.
Section 8. Lots to be Maintained. Each Lot shall at all times 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 or street, except as necessary during the period of construction.
Section 9. Lots Not to be Subdivided. No Lot shall be subdivided, except for the purpose of combining portions of a Lot 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 10. Underground Utility Lines. All electric, television, radio, and telephone line installations and connections from any property line of a Lot to a residence or other structure shall be placed underground, except that during the construction of a residence the contractor or builder may install a temporary overhead utility line which shall be promptly removed upon completion of construction.
Section 11. No Noxious or Offensive Activity. No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done or placed on any Lot which is or may become a nuisance or cause embarrassment, disturbance, or annoyance to others.
Section 12. No Hazardous Activities. No activities shall be conducted on the Properties and on 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 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 any Lot which is unreasonably bright or causes unreasonable glare; no sound shall be emitted on any Lot which is unreasonably loud or annoying; and no odor shall be emitted on any Lot which is noxious or offensive to others.
Section 14. Restrictions on Parking and Storage. Each automobile, house trailer, camping trailer, boat trailer, hauling trailer, running gear, boat, or accessories thereto, motor-driven cycle, truck, self-contained motorized recreational vehicle, van, or other type of vehicle or vehicular or recreational equipment, parked or stored on the Properties shall be parked or stored, at any one time, wholly within the boundaries of one (1) parking space within an area authorized for vehicular parking as designated by the Association or within a garage, except that any 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 or Lots. The provisions of this Section 14 shall be subject to, and may be modified and/or supplemented by, any rules and regulations of the Association.
Section 15. Clotheslines and Storage. 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 and/or public view and/or from the Common Area.
Section 16. Garbage and Refuse Disposal. No garbage, refuse, rubbish, or cuttings shall be deposited on any street, or on any Lot, unless placed in a suitable container suitably located, solely for the purpose of garbage pickup. All equipment for the storage or disposal of such materials shall be kept in clean and sanitary condition.
Section 17. Repair. No activity such as, but not limited to, maintenance, repair, rebuilding, dismantling, repainting, or servicing of any kind of vehicles, trailers, boats, may be performed on any Lot or on the Common Area, unless it is done within completely enclosed structures 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 18. Tanks. No tanks of any kind, either elevated or buried, shall be erected, placed, or permitted upon any Lot.
Section 19. Maintenance and Repair. The maintenance and repair of the interior and exterior of each residence situated on a Lot, shall be the responsibility of the Owner thereof. Each Owner, its agents and contractors, are hereby granted an easement for the purpose of maintenance and repair, in and upon adjacent Lots on reasonable notice to the Owners thereof. Any damage occasioned to the adjacent Lot or improvements thereon in exercising said easement shall be the responsibility of the Owner performing the maintenance or repair.
Section 20. Leases. No Lot or any structure located thereon, or any portion thereof, may be leased or rented for a period of less than ninety (90) days and may not be used for hotel or transient purposes. All lease agreements between an Owner and a lessee shall provide that the terms of such lease shall be subject in all respects to the provisions of this Declaration, the Articles of Incorporation and Bylaws of the Association, and that any failure by the lessee to comply with any terms or provisions of any of such documents shall be a default under the lease. Further, all leases shall be in writing and a copy thereof shall be delivered to the offices of the Association within ten (10) days of the execution date thereof.
Section 21. Management Agreements and Other Contracts.
(a) The Association may utilize professional management in performing its duties hereunder. Any agreement for professional management of the Association’s business shall have a maximum term of one (1) year and shall provide for termination by either party thereto, with or without cause and without payment of a termination fee, upon thirty (30) days prior written notice. Any such management contracts entered into by the Association with a manager or managing agent while there is a Class B membership shall be subject to review and approval by the Federal Housing Administration of the U.S. Department of Housing and Urban Development or the Veterans Administration, and shall terminate absolutely, in any event, not later than thirty (30) days after termination of said Class B membership.
(b) Any contracts, licenses or leases entered into by the Association while there is a Class B membership shall provide for termination by either party thereto, with or without cause and without payment of a termination fee, at any time after termination of the Class B membership, upon ninety (90) days prior written notice; provided, however, that any contract entered into at any time by the Association providing for services of the Declarant shall provide for termination at any time by either party thereto without cause and without payment of a termination fee upon ninety (90) days’ prior written notice. Notwithstanding anything to the contrary contained in this Section 21(b), the Association may enter into contracts, licenses and leases in violation of this Section 21(b) upon a waiver of any requirements contained herein by the Veterans Administration and the Federal National Mortgage Association.
Section 22. Rules and Regulations. Reasonable rules and regulations 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. The Association or any aggrieved Owner may take judicial action against any Owner to enforce compliance with such rules and regulations, to collect fines and/or obtain damages for noncompliance, or for injunctive relief, or both, all to the extent permitted by law; in any such action the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees incurred pursuant thereto.
ARTICLE XI
FIRST MORTGAGEES
Section 1. Member and First Mortgagee Approval. 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 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 enforcement thereof, as set forth in this Declaration, regarding 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 consistent with the intended use of such common property and reasonably necessary or useful for the proper maintenance or operation of the Properties or the Association);
(5) change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner;
(6) 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 any First Mortgagee who receives a written request to approve any of such documents and who does not deliver or post to the requesting party a negative response within thirty (30) days of its receipt of such request, shall be deemed to have approved such request, and further 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, and finally 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 destruction, damage or condemnation of the Properties or the improvements thereon:
(a) voting;
(b) assessments, assessment liens or subordination 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 Properties or the addition, annexation or withdrawal of property to or from the Properties;
(h) boundaries of any Lot;
(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) any provisions which are for the express benefit of First Mortgagees, or insurors or guarantors of First Mortgages; or
(7) effectuate any decision to terminate professional management and assume self-management of the Association, when professional management has previously been required by any First Mortgagee of a Lot or insurer or guarantor of such a First Mortgage;
(8) 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;
(9) 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; or
(10) terminate the legal status of the Properties after substantial destruction or a substantial taking in condemnation of the Properties.
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 insurer 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, insurer 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 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 modification of any insurance policy or fidelity bond maintained by the Association;
(D) any proposed action which would require the consent of a specified percentage of First Mortgagees as provided in this Article XI.
Section 3. Audit. The Association shall provide an audited financial statement for the immediately preceding fiscal year, free of charge to the party so requesting, including any First Mortgagee of a Lot, or any insurer or guarantor of such a First Mortgage, within a reasonable time after written request therefor by any such party.
Section 4. Association Books and Records. The Association shall make available to Owners, First Mortgagees of Lots, and insurers or guarantors of any such First Mortgage, current copies of this Declaration, and the Articles of Incorporation, Bylaws, rules and regulations, books, records and financial statements of the Association. "Available" shall mean available for inspection, upon request, during normal weekday business hours or under other reasonable circumstances.
ARTICLE XII
GENERAL PROVISIONS
Section 1. Enforcement. Enforcement of the covenants, conditions, restrictions, easements, reservations, rights-of-way, liens, charges and other provisions contained in this Declaration, the Articles of Incorporation or Bylaws of the Association, shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate any such provision, to enjoin or restrain such violation or attempted violation or to recover damages, or both, and the Association and any aggrieved Owner shall have the right to institute, maintain and/or prosecute any such proceedings; in any such action the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees incurred pursuant thereto. Failure by the Association or any Owner to enforce any provision of this Declaration or the Articles of Incorporation or Bylaws of the Association shall in no event be deemed a waiver of the right to do so thereafter.
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 residence is situated within five feet of any adjoining Lot line, a valid easement for the benefit of the Owner of such residence is hereby created, five feet in width along the adjoining Lot and adjacent to the said Lot line, which easement may be used by such Owner for the purpose of construction, reconstruction, maintenance and repair of the exterior of the residence that is situated within five feet from the nearest point of said easement.
Section 4. Easement for Encroachments. If any portion of a residence encroaches upon the Common Area, the Common Property or upon any adjoining Lot, including any future encroachments arising or resulting from the repair or reconstruction of a residence 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 stands, shall and does exist.
Section 5. Utilities. There is hereby created a blanket easement upon, across, over and under the Properties for utilities and the installation, replacement, repair and maintenance of utilities, including but not limited to water, sewer, gas, telephone, electricity and master television antenna systems, if any, 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 even 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 6. Rights of Declarant Incident to Construction. 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 from that Owner’s Lot or any recreational facility completed upon the Common Area.
Section 7. Conflicts 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 8. Annexation. Additional Lots and Common Area may be annexed to the Properties with the consent of two-thirds of each class of Members. Notwithstanding the foregoing, the Declarant may annex additional Lots and Common Area to the Properties within the lands described on Exhibit C attached hereto and incorporated herein by this reference, until five (5) years from the date this Declaration is recorded in the Arapahoe County land records, without consent of the individual Owners, subject to a determination by the Federal Housing Administration of the U.S. Department of Housing and Urban Development and/or the Veterans Administration that the annexation is in accord with the general plan heretofore approved by them. Each such annexation shall be effected, if at all, by recording a document in the Office of the Clerk and Recorder of the County of Arapahoe, Colorado, which document shall provide for annexation to this Declaration of the property described in such document. All provisions of this Declaration, including but not limited to those provisions regarding obligations to pay assessments to the Association and any right to cast votes as Members of the Association, shall apply to property annexed to the Properties, including but not limited to all Lots contained therein, immediately upon recording an annexation document with respect thereto, as aforesaid. Improvements which are constructed by Declarant on any property annexed to the Properties by Declarant shall be consistent, in terms of quality of construction with improvements constructed on the original Properties by Declarant prior to such annexation, unless construction of improvements inconsistent in quality, as aforesaid, has been approved by the Federal National Mortgage Association. Prior to transferring ownership of the first Lot conveyed in the Properties and in any property which is annexed by Declarant to Properties pursuant to this Section 8, Declarant shall convey the Common Area contained in the Properties or in such annexed property, as applicable, to the Association.
Section 9. Condemnation. In the event proceedings are initiated by any government or agency thereof, seeking to take by condemnation or by the power of eminent domain the Common Area, any material part thereof or any material interest therein, the Association shall give prompt notice thereof, including a description of the part of or interest in the Common Area sought so to be 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, any part thereof, any improvements thereon, or any interest therein, and each Owner hereby appoints the Association as its attorney in fact for such purposes. Any award of proceeds of settlement shall be payable to the Association to be used as herein provided.
(a) In the event all the Common Area is taken, condemned, sold or otherwise disposed of, in lieu of or in avoidance thereof, any award or settlement shall be apportioned by the Association among the Members and their Mortgagees on a reasonable basis as the Association determines to be equitable in the circumstances, or as determined by judicial decree. If the allocation of condemnation 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 less than the entire Common Area is taken condemned, 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 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, (based upon one vote for each mortgage held) agree otherwise. Any surplus of the award or other portion thereof not used for rebuilding and replacement, which is less than or equal to Five Thousand Dollars ($5,000.00), shall be retained by the Association to offset normal operating expenses and any excess shall be distributed by the Association on the same basis as indicated in subparagraph (a) of this Section 9. 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 the Owner of insurance proceeds or condemnation awards for losses to or taking of Lots or Common Area or both.
Section 10. Duration, Revocation, and Amendment. 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 otherwise 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 Arapahoe County, Colorado.
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 the Veterans Administration, the Federal Housing Administration of the U.S. Department of Housing and Urban Development, the Government National Mortgage Association, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, 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 hereof; and each such amendment must contain thereon the written approval of the Veterans Administration or the Federal Housing Administration of the U.S. Department of Housing and Urban Development.
Section 11. Registration by Owner of Mailing Address. Each Owner 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. 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 3600 South Yosemite, Suite 750, Denver, Colorado 80237, 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 Federal Housing Administration or the Veterans Administration: annexation of additional properties to the Properties, dedication of Common Area, and amendment of this Declaration.
Section 13. Dedication of Common Area. Declarant in recording this Declaration of Covenants, Conditions and Restrictions has designated certain areas of land as Common Area intended for the common use and enjoyment of Owners for recreation 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.
Section 14. Subassociation and Supplemental Declaration. This Declaration shall be and hereby is deemed to be a Supplemental Declaration, as defined in the Master Declaration and the Association shall be and is hereby deemed to be a Subassociation, as defined in the Master Declaration. This Declaration shall at all times be subordinate and subject to the Master Declaration and to the extent that this Declaration conflicts with or modifies the Master Declaration, the Master Declaration shall control and prevail
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.
M.Q.P. CORP.,
[SEAL] A Colorado corporation
By:
Title Vice President
ATTEST:
By:
Title Assistant Secretary
STATE OF COLORADO )
) ss.
COUNT OF Denver )
The foregoing instrument was acknowledged before me this 25th day of January , 19 83 by Steven B. Chotin as Vice President and Robert T. Rosen as Assistant Secretary of M.Q.P. Corp., a Colorado corporation.
WITNESS my hand and official seal.
My commission expires: October 13, 1986
Notary Public
Address of Notary:
3600 S. Yosemite
Denver, CO 80237
Posted
by lmeriweather on 02/19/2001
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