THE DOCUMENT THAT FOLLOWS HAS BEEN APPROVED BY THE BOARD AND WAS SUBMITTED TO OWNERS FOR A VOTE AT THE ANNUAL MEETING ON AUGUST 16, 2005 AND APPROVED BY THE OWNERS. INSUBSTANTIAL CHANGES MAY BE MADE TO THIS THE DOCUMENT.
TABLE OF CONTENTS
ARTICLE 1 - DEFINED TERMS
Section 1.1 Allocated Interests
Section 1.2 Articles of Incorporation
Section 1.3 Association
Section 1.4 Board: Board of Directors
Section 1.5 Bylaws
Section 1.6 Common Elements
Section 1.7 Common Expenses
Section 1.8 Common Expense Assessment: Assessment
Section 1.9 Community
Section 1.10 Covenants
Section 1.11 Declaration
Section 1.12 Design Guidelines
Section 1.13 First Mortgage
Section 1.14 Governing Documents
Section 1.15 Improvement
Section 1.16 Mortgage
Section 1.17 Owner
Section 1.18 Party Walls
Section 1.19 Plat
Section 1.20 Real Estate
Section 1.21 Record: Recorded
Section 1.22 Related User
Section 1.23 Rules
Section 1.24 Unit
ARTICLE 2 - DESCRIPTION OF REAL ESTATE, UNITS AND COMMON ELEMENTS
Section 2.1 Description and Type
Section 2.2 Number of Units
Section 2.3 Identification of Units/Unit Descriptions
Section 2.4 Owners' Use of the Common Elements
Section 2.5 Delegation of Use
Section 2.6 Party Walls
ARTICLE 3 -THE ASSOCIATION
Section 3.1 Membership
Section 3.2 General Purposes. Powers and Authority of the Association
Section 3.3 Specific Powers
Section 3.4 Promulgation of Rules
Section 3.5 Indemnification
ARTICLE 4 - EASEMENTS
Section 4.1 Easement for Utilities
Section 4.2 Easement for Encroachments
Section 4.3 Easements for the Board of Directors
Section 4.4 Emergency Easements
Section 4.5 Owners' Easements of Enjoyment
Section 4.6 Delegation of Use
Section 4.7 Reciprocal Easements Granted to Owners
ARTICLE 5 - MAINTENANCE. REPAIR AND IMPROVEMENT
Section 5.1 Owners' Responsibilities Within Units
Section 5.2 Association's Responsibilities Within Units
Section 5.3 Association Responsibility for Common Elements
Section 5.4 Scope of Association Maintenance
Section 5.5 Right of Access
ARTICLE 6 - COVENANT FOR COMMON EXPENSE ASSESSMENTS
Section 6.1 Creation of Association Lien and Personal Obligation to Pay Common Expense Assessments
Section 6.2 Purpose of Assessments
Section 6.3 Apportionment of Common Expenses
Section 6.4 Default Assessments
Section 6.5 Annual Assessment
Section 6.6 Installments: Assessments
Section 6.7 Special Assessments
Section 6.8 Lien Priority
Section 6.9 Reserves/Surplus
Section 6.10 Effect of Non-Payment of Assessments
Section 6.11 No Waiver or Abandonment
Section 6.12 Declaration is Notice
ARTICLE 7 - RESTRICTIONS ON USE, ALIENATION AND OCCUPANCY
Section 7.1 Absolute Authority of the Board of Directors
Section 7.2 Use Restrictions
Section 7.3 Owners' Acknowledgment
Section 7.4 Rights of Owners
7.4.2 Religious and Holiday Displays
7.4.3 Activities Within Dwelling
7.4.4 Pets
7.4.5 No Restrictions on Sale of a Unit
7.4.6 No Restrictions on Mortgaging of a Unit
Section 7.5 Initial Use Restrictions
7.5.1 Subdivision
7.5.2 Conditions to Conduct Business
7.5.3 Leases
7.5.4 Restrictions on Vehicles
7.5.5 Nuisances
7.5.7 No Hazardous Activities
7.5.8 Compliance with Insurance Requirements
7.5.9 Restriction on Signs and Advertising Devices
7.5.10 Pet Restrictions
7.5.11 Restriction of Exterior Improvement
ARTICLE 8 - INSURANCE/CONDEMNATION
Section 8.1 Insurance Carried
Section 8.2 Liability Insurance
Section 8.3 Fidelity Insurance
Section 8.4 Owners' Insurance
Section 8.5 Worker's Compensation and Employer's Liability Insurance
Section 8.6 Officers' and Directors' Liability Insurance
Section 8.7 Other Insurance
Section 8.8 Insurance Premium
Section 8.9 Managing Agent Insurance
Section 8.10 Waiver of Claims Against Association
Section 8.11 Annual Insurance Review
Section 8.12 Adjustments by the Association
Section 8.13 Duty to Repair
Section 8.14 Condemnation and Hazard Insurance Allocations and Distributions
ARTICLE 9 - DESIGN REVIEW
Section 9.1 Design Review
Section 9.2 Notice of Noncompliance
Section 9.3 Nonliability of the Board of Directors Members
Section 9.4 Variances
Section 9.5 Scope of Judicial Review
ARTICLE 10 - ALLOCATED INTERESTS
ARTICLE 11 - AMENDMENT AND TERMINATION
Section 11.1 Technical. Clerical. Typographical or Clarification Amendment
Section 11.2 Necessary to Exercise Authority of Association Documents
Section 11.3 Attorney in Fact
Section 11.4 Amendment of Declaration by Owners
Section 11.5 Recording of Amendments
Section 11.6 Expenses
Section 11.7 Termination
ARTICLE 12 - GENERAL PROVISIONS
Section 12.1 Enforcement
Section 12.2 Right to Pay Taxes and Insurance Premiums
Section 12.3 Severability
Section 12.4 Interpretation
Section 12.5 Singular Includes the Plural
Section 12.6 Captions
Section 12.7 Term of Declaration
EXHIBIT A - DESCRIPTION OF THE REAL ESTATE
AMENDED AND RESTATED DECLARATION
FOR
PINE TERRACE
A Planned Community
THIS AMENDED AND RESTATED DECLARATION is dated August 16, 2005 and shall be effective the date this instrument is recorded.
I. This Common Interest Community was originally established pursuant to that certain "Declaration of Covenants, Conditions and Restrictions Affecting the Real Property Known as Pine Terrace Phase One, recorded February 1, 1984 in Book 3830 at Page 1043 in the office of the El Paso County Clerk and Recorder, and as supplemented and amended by that certain, "Annexation of Additional Property (pine Terrace Phase Two, Three and Four) recorded November 27, 1985 in Book 5094 at Page 0149 in the office of El Paso County Clerk and Recorder, El Paso County, Colorado [we will include the recording information for all documents per title company report not yet received) (collectively, the "Original Declaration").
II. The Original Declaration imposed upon the real property described in the Original Declaration, certain terms, provisions, covenants, conditions, restrictions, easements, reservations, uses, limitations and obligations, which run with and are binding upon said real property. Said property is more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Real Estate").
III. Formed in 1984, this Common Interest Community is a "pre-existing community" as that term is defined by the Colorado Common Interest Ownership Act, C.R.S. 38-33.3-10 1 et seq. (the "Act"), and as such, is subject to certain provisions of the Act.
IV. The Owners and the Association desire to amend and restate all provisions of the Original Declaration by virtue of this Amended and Restated Declaration (the "Declaration"), and intend upon the recording of this Declaration, that the Original Declaration shall be superseded entirely by this Declaration.
V. The Association has obtained approval of this Amended and Restated Declaration from the requisite percentage of Owners (and holders of first mortgages).
ARTICLE 1
DEFINED TERMS
Each capitalized term in this Declaration shall have the meaning specified or used in the Act, unless otherwise defined in this Declaration. In supplementation of the definitions set forth in the Act, the following terms shall have the meanings as set forth below:
Section 1.1 Allocated Interests. The Common Expense Liability and Votes in the Association allocated to each Unit pursuant to the terms of this Declaration in accordance with the formula set forth in Article 10.
Section 1.2 Articles of Incorporation. The Amended and Restated Articles of Incorporation for the Association filed with the Colorado Secretary of State, as the same may be further amended from time to time.
Section 1.3 Association. PINE TERRACE HOMEOWNERS ASSOCIATION.
Section 1.4 Board: Board of Directors. The elected body that governs the Association (referred to in the Act, as the "Executive Board").
Section 1.5 Bylaws. The Amended and Restated Bylaws of the Association as the same may be further amended from time to time.
Section 1.6 Common Elements. All real and personal property which the Association owns, leases or otherwise holds possessory or use rights, or easement rights over across and upon as provided in this Declaration or the Plat, in and for the common use and enjoyment of the Owners. The term, "Common Elements" includes all streets, curbs, common lawns, common driveways, and all landscaping of such areas within the Common Elements and also includes "Limited Common Elements," i.e., those Common Elements which are reserved for the exclusive use of one more, but fewer than all, Units.
Section 1.7 Common Expenses. As used in this Declaration, this term includes all charges levied by and for the benefit of the Association pursuant to the Governing Documents, including, but not limited to: (i) annual costs and expenses of the Association resulting from owning, leasing, using, maintaining, or otherwise controlling any real or personal property and the Common Elements; (ii) expenses incurred by the Association pursuant to Section 6.2; (iii) large, single item expenditures of the Association (including but not limited to,
capital expenditures and "Special Assessments," as defined in Section 6.7); and (iv) amounts necessary to fund reserves pursuant to Section 6.9 below.
Section 1.8 Common Expense Assessment: Assessment. In addition to the definition included in the Act, these terms shall include the following items levied against a particular Owner and Unit: (i)
the Owner's Allocated Interest in the Common Expenses (i.e., the "Common Expense Liability," subject to reapportionment pursuant to Section 6.3; (ii) late charges, attorneys' fees, fines, and interest charged by the Association at the rate as determined by the Board of Directors; (iii) charges against a particular Owner and the Unit for the purpose of reimbursing the Association for expenditures and other costs of the Association in curing any violation of the Governing Documents by the Owner or Related Users; (iv) charges levied against an Owner pursuant to Section 6.4 due to Owner's negligence or misconduct ("Default Assessment"); and (v) any sums permitted by the Governing Documents or the Act to be assessed against a particular Owner or Unit.
Section 1.9 Community. The common interest community known as, "PINE TERRACE."
Section 1.10 Covenants. Collective term for all promises, restrictions, reservations, conditions, terms, easements, and rights-of-way specifically set forth or referenced in this Declaration and set forth in the Governing Documents, as the same may be adopted and amended from time to time. Each and every Covenant shall be given the same force and effect at law or equity without regard to which Governing Document such provision is set forth.
Section 1.11 Declaration. This Declaration, and any and all duly executed amendments, supplements, or additions to this Declaration recorded in the office of the Clerk and Recorder for the County of El Paso, State of Colorado, and including the Plat.
Section 1.12 Design Guidelines. Collective reference to all written design and development guidelines, policies and procedures, application and review procedures and fee schedules, and all architectural controls which shall apply to all construction and all other Improvement activities within the Units, and which are enacted by the Board of Directors pursuant to its rule-making authority.
Section 1.13 First Mortgage. A Mortgage which is subject only to governmental liens, the lien for real property taxes, a portion of the Common Expense Assessment pursuant to the Act, and other liens made superior by Colorado law. The holders, insurers, and guarantors of a First Mortgage are collectively referred to as "First Mortgagees" and an "Institutional First Mortgagee" shall refer to any of the following: bank, insurance company, mortgage lender, real estate mortgage investment trust, pension fund, an agency of the United States Government (including "VA" or "FHA"), mortgage banker, the Federal National Mortgage Association ("FNMA"), the Federal Home Loan Mortgage Corporation ("FHLMC") or any other lender generally recognized as an institutional lender, holding a First Mortgage or any insurer or guarantor of a First Mortgage.
Section 1.14 Governing Documents. Collective reference to those documents which govern the operation of the Association, including: (i) the Articles of Incorporation; (ii) the Bylaws; (Hi) the Rules (including Design Guidelines); (iv) the Plat; and (v) this Declaration, as one or more of the same may be amended from time to time.
Section 1.15 Improvement. Physical structures and all landscaping installed within or upon all or a portion of the Real Estate, and specifically including the Patio Homes.
Section 1.16 Mortgage. Any mortgage instrument, deed of trust, or other security instrument duly Recorded creating a lien on any Unit, together with each and every collateral obligation secured by such instrument. A "Mortgagee" is a holder, insurer or guarantor of a Mortgage.
Section 1.17 Owner. Any one or more individuals or entities that holds fee title to a Unit.
Section 1.18 Party Walls. Each wall which is built as a part of the original construction of a Unit and
placed on or about the horizontal or vertical boundary line between two Units or between one or more Units and a portion of the Common Elements. To the extent not inconsistent with the provisions of this Declaration and the Act, 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 1.19 Plat. Collective reference to those plat maps for Pine Terrace Phases One through Six, recorded in the real property records for the County of El Paso, State of Colorado, as the same may be amended from time to time. The "notes" on the various sheets comprising the Plat are hereby incorporated herein by this reference and shall be fully enforceable as though set forth herein.
Section 1.20 Real Estate. The property described in Exhibit A, together with all easements, rights, and appurtenances thereto and the Improvements thereon, together with all easements, rights, and appurtenances thereto.
Section 1.21 Record: Recorded. Filed in the real property records in the Office of the Clerk and Recorder for the County of El Paso, State of Colorado.
Section 1.22 Related User. Any person who: (i) resides with an Owner within the Unit; (ii) is a guest or invitee of an Owner; (iii) is an occupant or tenant of a Unit; and (iv) any family member, guest, invitee or cohabitant of the foregoing.
Section 1.23 Rules. All rules, policies, and regulations (including by way of example only, use restrictions, Design Guidelines, and enforcement procedures) enacted by the Board of Directors pursuant to this Declaration, the Bylaws, and the Act.
Section 1.24 Unit. A physical portion of the Community, designated for separate ownership, shown as a Lot on the Plat and includes the Lot and all Improvements thereon, if any. Reference to a Unit shall specifically include any "Patio Home" constructed within the Lot.
ARTICLE 2
DESCRIPTION OF REAL ESTATE, UNITS AND COMMON ELEMENTS
Section 2.1 Description and Type. The Community is a Planned Community located in the County of El Paso, State of Colorado. The Real Estate of the Community is described in Exhibit A. All easements and licenses to which the Community is presently subject are recited in Exhibit A. In addition, the Community may be subject to other easements or licenses granted pursuant to the Governing Documents, or granted by authority reserved in any Recorded document or established in the Act.
Section 2.2 Number of Units. The number of units included in the Community is fifty-one (51).
Section 2.3 Identification of Units/Unit Descriptions. Every contract for sale, and every deed, lease, Mortgage, or other another legal instrument shall legally describe a Unit by its identifying Lot number as shown on the Plat.
Section 2.4 Owners' Use of the Common Elements. Every Owner shall have a right to use and enjoy the Common Elements, subject to the following provisions:
2.4.1 The Governing Documents;
2.4.2 The right of the Association to exercise all powers and duties pursuant to Article 3 below, other applicable provisions of the Governing Documents, and the Act;
2.4.3 The right of the Board of Directors to adopt and amend, from time to time, Rules concerning all or any portion of the Real Estate and any Improvement located thereon, as the Association may determine is necessary or prudent;
2.4.4 The right of the Association to enter into and execute contracts with any party for the purpose of providing management, maintenance or other materials and services to the Association and the Owners consistent with the purposes of the Association, this Declaration and the Act;
2.4.5 The right of the Association to grant permits, licenses and easements over the Common Elements for such purposes deemed appropriate by the Board of Directors;
2.4.6 The right of the Association to mortgage, pledge, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, subject to the approval requirements set forth below; and
2.4.7 The right of the Association to close or limit the use of the Common Elements while maintaining, repairing and making replacements.
Section 2.5 Delegation of Use. Any Owner may delegate his right of enjoyment of the Common Elements to Related Users. An Owner who does not reside at his Unit but permits occupancy of the Unit by a Related User pursuant to a lease in form permitted by this Declaration shall be deemed to have delegated his rights to use the Common Elements to such Related User.
Section 2.6 Party Walls. The cost of maintenance, repair, alteration, improvement and replacement of each Party Wall shall be shared equally by the Owners of the Units adjoining such Party Wall. The right of an Owner to contribution from another Owner pursuant to this
Declaration or the Act, shall be appurtenant to the land and such rights and obligations shall pass to the Owners' successors in title.
2.6.1 If a Party Wall is destroyed or damaged by fire or other casualty, any Owner whose Unit adjoins such Party Wall may repair or restore it, and the other Owner shall immediately upon receipt of written demand therefore, pay his or her portion of such costs to the Owner making such restoration or repair.
2.6.2 In the event of damage or destruction of a Party Wall from any cause, other than the negligence or willful misconduct of an Owner, the sharing Owners shall, as an expense equally shared between the two Owners, repair or rebuild said wall to its previous condition, which specifically includes the previous sound transmission coefficient, and the sharing Owners, their successors and assigns shall have the right to the full use of said wall so repaired and rebuilt. If an Owner's negligence or willful misconduct shall cause damage to or destruction of such Party Wall, such negligent party shall bear the entire cost of repair and reconstruction.
ARTICLE 3
THE ASSOCIATION
Section 3.1 Membership. Every person who is an Owner of a fee interest in any Unit which is subject to this Declaration shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Unit. Ownership of such Unit shall be the sole qualification for such membership. Where more than one person holds an interest in any Unit, all such persons shall be members.
Section 3.2 General Purposes. Powers and Authority of the Association. The Association, acting solely through its Board of Directors, shall perform functions and manage the Community including its business affairs as provided in the Governing Documents so as to protect the value and desirability of the Community and to further the interests of the Owners and Related Users. Any purchaser of a Unit shall be deemed to have assented to, ratified and approved such designation and management. The Association shall have all power necessary or desirable to effectuate such purposes. The Association shall be governed by the Act and the Governing Documents. The Board of Directors may, by written resolution, delegate authority to a manager or managing agent for the Association, provided no such delegation shall relieve the Board of final responsibility.
Section 3.3 Specific Powers. The Association shall have the powers, authority and duties as follows and as necessary and proper to manage the business and affairs of the Community:
3.3.1 The Association shall have all of the powers, authority and duties permitted or set forth in the Act and in the Colorado Revised Nonprofit Corporation Act.
3.3.2 The Association shall have the power to assign its right to future income, (including but not limited to the right to assign its right to receive Common Expense Assessments), but only upon the affirmative vote of the Owners of Units to which at least fifty-one percent (51 %) of the Votes in the Association are allocated who are either present at a meeting called for that purpose or who vote affirmatively by mail ballot pursuant to the Bylaws.
Section 3.4 Promulgation of Rules. The Board of Directors may adopt, amend, repeal and enforce Rules and to impose fines for violations of the Governing Documents, as it deems desirable with respect to the interpretation and implementation of this Declaration and the operation of the Association, including Units, in accordance with the following:
3.4.1 The Rules shall be reasonable and uniformly applied.
3.4.2 The Rules shall be effective fifteen days after delivery of Notice of the adoption, amendment or repeal of any Rule, in writing to each Owner. Copies of the currently effective Rules shall be made available to each Owner in accordance with the Act.
3.4.3 Each Owner shall comply with the Rules and shall see to it that Related Users comply with the Rules.
3.4.4 The Rules shall have the same force and effect as if they were stated in full in this Declaration. In the event of conflict between the Rules and this Declaration, this Declaration shall prevail, but only to the extent that such Rule invalidates a specific provision in this Declaration.
Section 3.5 Indemnification. To the full extent permitted by law, each officer, director and committee member of the Association shall be and are hereby indemnified by the Owners and the Association against all expenses and liabilities including attorneys' fees, reasonably incurred by or imposed upon them in any proceeding to which they may be a party, or in which they may become involved, by reason of being or having been an officer or director, or committee member or any settlements thereof, whether or not they hold such position at the time such expenses are incurred; except in such cases wherein such person is adjudged guilty of willful misfeasance or malfeasance in the performance of his or her duties.
ARTICLE 4
EASEMENTS
Section 4.1 Easement for Utilities. Each and every Unit is subject to an easement upon each Unit for installing, replacing, repairing, and maintaining common water, sewer and other utility lines. By virtue of this easement, it shall be expressly permissible for the utility companies or municipalities supplying such utility service or the Association to erect and maintain the necessary equipment within the Real Estate and to affix, repair and maintain water and sewer pipes, gas, electric and telephone wires, circuits, conduits and meters. This easement and related obligations and duties shall be appurtenant to and pass with title to each Unit.
Section 4.2 Easement for Encroachments. If any portion of a Unit encroaches upon any Common Element or adjoining Unit, a valid easement for such encroachment and for the maintenance of same, shall and does exist provided such easements do not exceed ten (10) feet within the boundaries of such Common Element or adjoining Unit; and such encroachments do not interfere with the enjoyment of the Common Element or the adjoining Unit. Similarly, if any portion of the Common Elements encroaches upon a Unit, a valid easement for the encroachment and for the maintenance of same, shall and does exist. Such encroachments and easements shall not be considered or determined to be encumbrances either on the Common Elements or any Units affected thereby. Further, such easements shall be deemed to run with the land upon which the Improvements may be
found.
Section 4.3 Easements for the Board of Directors. Each Unit shall be subject to an easement in favor of the Board of Directors (including its agents, employees and contractors) to allow for their performance of obligations in the Governing Documents or the Act.
Section 4.4 Emergency Easements. A nonexclusive easement for ingress and egress is hereby granted to all police, sheriff, fire protection, ambulance, and other similar emergency agencies or persons, now or hereafter servicing the Community, to enter upon any part of the Community in the performance of their duties.
Section 4.5 Owners' Easements of Enjoyment. Every Owner shall have a right and easement for access to their Unit and of enjoyment in and to any Common Elements and such easement shall be appurtenant to and shall pass with the title to every Unit, subject to the following provisions:
4.5.1 The right of the Association to promulgate and publish Rules with which each Owner and their Related Users shall strictly comply.
4.5.2 The right of the Association to suspend the voting rights of an Owner for any period during which any Assessment against their Unit remains unpaid; and for a period not to exceed sixty (60) days for any infraction of the Rules.
4.5.3 The right, power and authority of the Association to grant any easement, right-of-way, license, lease, dedication, transfer or conveyance or grant of any similar interest affecting the Common Elements, to the extent permitted by the Act.
4.5.4 The right of the Association to close or limit the use of the Common Elements or portions of Units which the Association is required to maintain pursuant to Section 5.2 below while maintaining, repairing and making replacements in or to these portions of the Community.
Section 4.6 Delegation of Use. Any Owner may delegate his right of enjoyment to the Common Elements to Related Users.
Section 4.7 Reciprocal Easements Granted to Owners. Reciprocal easements which may be granted to Owners of adjoining Units shall be in addition to the easements granted in this Declaration and the Act. To the extent any provision of the Act or any provision of the Governing Documents conflict with any such reciprocal easements between Owners, the provisions of the Act or the provision of the Governing Documents prevail.
ARTICLE 5
MAINTENANCE, REPAIR AND IMPROVEMENT
Section 5.1 Owners' Responsibilities Within Units. Except as otherwise provided in Section 5.2 below, Owners are responsible for securing the maintenance, repair, replacement and improvement of the real and personal property located within the Unit, including the Patio Home and all courtyards, decks and patios within the Lot, and to pay the costs thereof located. Each Unit, at all times, shall be kept well maintained, in good repair, and replacement, and in a clean, sightly, and sanitary condition. Trash, litter, junk boxes, containers, bottles, cans, implements, machinery, lumber or other building materials shall not be permitted to remain exposed upon or within any Unit so that the same are visible from any neighboring Unit, or any street, except as necessary during a period of construction. The Association, and its agents, shall have the authority to enter, replace, maintain, repair and clean up Units which do not conform to the provisions of this Section, and to charge and collect from the Owners thereof all reasonable costs related thereto as an Assessment, as more particularly provided in Article 5 of the Bylaws.
Section 5.2 Association's Responsibilities Within Units. The Association shall have the sole control over, and shall assume the cost of trash removal from the Community and the enhancement, upkeep, maintenance, repair and reconstruction (which shall include the making of capital improvements to and the snow removal from, as the case may be) within Units only as provided in this Section 5.2 and as the Association may otherwise assume in the Rules. Accordingly, the Association shall be responsible for only the following portions of Units:
5.2.1 Repair and replacement of the outermost layer of the roof (e.g., the tile but not the felt, flashing or structure);
5.2.2 Gutters, and drain-spouts;
5.2.3 Fogging or painting of stucco surfaces of exterior walls (including courtyard and terrace walls and chimneys).
5.2.4 Concrete driveways and sidewalks outside of courtyards and adjacent retaining walls;
5.2.5 Painting or staining (including prep work) of window frames, window shelves, thresholds, front doors, and garage doors;
5.2.6 Light fixtures and bulbs on garages and mail posts;
5.2.7 Box posts (including address numerals);
5.2.8 Snow removal within courtyards; and
5.2.9 Any other items the Board elects to undertake as set forth in the Rules. However, in the event that the need for maintenance or repair of any area which the Association is required to complete is caused through the willful or negligent act of an Owner, or through the willful or negligent act of a Related User, the cost of such maintenance or repair shall be added to and become part of the Assessment to which that Unit or Owner is subject.
Section 5.3 Association Responsibility for Common Elements. The Association shall be solely responsible for the maintenance, repair, replacement and improvement of the Common Elements.
Section 5.4 Scope of Association Maintenance. The Board of Directors of the Association shall determine the specifications, scope, extent, nature and parameters of the Association's maintenance responsibilities.
Section 5.5 Right of Access. Provided that (i) requests for entry are made in advance and that any entry is at a time reasonably convenient to the affected Owner; and (ii) in case of an emergency, no request or notice is required and the right of entry shall be immediate, and with as much force as is reasonably necessary to gain entrance, whether or not the Owner is present at the time:
5.5.1 Any person authorized by the Board shall have the right of access to all portions of the Community for the purpose of performing emergency repairs or to do other work reasonably necessary for the proper maintenance of the Community, for the purpose of performing installations, alterations or repairs, and for the purpose of reading, repairing and replacing utility meters and related pipes, valves, wires and equipment.
5.5.2 Any Owner or his Related User shall have the right of access to all portions of an immediately adjacent Unit for the purpose of performing emergency repairs or to do other work reasonably necessary for the proper maintenance of his or her Patio Home or a Party Wall.
ARTICLE 6
COVENANT FOR COMMON EXPENSE ASSESSMENTS
Section 6.1 Creation of Association Lien and Personal Obligation to Pay Common Expense Assessments. Each Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay Assessments pursuant to the Governing Documents. Such Assessments shall be the personal obligation of the Owner of such Unit at the time when the Assessment or other charges became due. The Assessments shall be a charge on each Unit and shall be a continuing lien upon the Unit against which each such Assessment is made. If any Assessment is payable in installments, the full amount of the Assessment is a lien from the time the first installment becomes due. The personal obligation to pay any past due sums shall not pass to a successor in title unless expressly assumed by them. No Owner may become exempt from liability for payment of the Assessments by waiver of the use or enjoyment of the Common Elements or by abandonment of the Unit against which the Assessments are made. All Assessments shall be payable in the amounts specified in the levy thereof, and no offsets or reduction thereof shall be permitted by any reason including, without
limitation, any claim that the Association or the Board of Directors is not properly exercising its duties and powers under this Declaration.
Section 6.2 Purpose of Assessments. In addition to such other purposes as set forth in the Act, Assessments shall be used for the purposes of promoting the safety and general welfare of Owners and Related Users, and in particular:
6.2.1 To enforce all provisions of the Governing Documents;
6.2.2 To exercise all rights and powers and to discharge all duties and obligations pursuant to the Act and the Governing Documents;
6.2.3 To discharge all expenses incurred by the Association in the alteration, enhancement, construction, reconstruction, repair, maintenance or replacement
of the Common Elements and portions of the Units the Association is required to maintain pursuant to Section 5.2 above and all Improvements located thereon, including fixtures and personal property related thereto;
6.2.4 To discharge all expenses incurred by the Association in the alteration, maintenance, repair and replacement of any property the Association may elect to so alter, maintain, repair or replace pursuant to the Governing Documents; and
6.2.5 To fund any operating deficit or reserves the Association deems necessary to meet its financial obligations.
Section 6.3 Apportionment of Common Expenses. Except as provided below and elsewhere in this Declaration, all Common Expense Assessments shall be assessed against all Units in accordance with the formula for liability for the Common Expenses as set forth in this Declaration in Article 10 below:
6.3.1 Any Common Expense for services provided by the Association to an individual Unit pursuant to the Governing Documents or at the request of the Owner maybe assessed against that Unit (i.e., maintenance and improvement to exterior portions of Patio Homes pursuant to Section 5.2 above may be assessed against the benefited Units).
6.3.2 Any Common Expense for insurance may be assessed in proportion to risk.
6.3.3 Any Common Expense for utility services may be assessed in proportion to usage.
6.3.4 If a Common Expense is caused by the misconduct of an Owner, the Association may assess that expense exclusively against that Owner and that Unit, in addition to sums charged to the Owner pursuant to Section 6.4 below.
6.3.5 Fees, charges, taxes, impositions, late charges, fines, attorneys' fees, collection costs and interest charged against an Owner are enforceable as Common Expense Assessments.
Section 6.4 Default Assessments. In the event that the need for maintenance, repair, or replacement of the Common Elements, or any portion thereof, or any other portion of the
Community, is caused by or in any way results from the negligent or willful act or failure to act, or the misconduct of an Owner or an Owner's Related User, then the expenses, costs, and fees incurred by the Association for such maintenance, repair, or replacement shall be a personal obligation of such Owner, and such obligation shall be considered a Default Assessment, collectible as a Common Expense Assessment.
Section 6.5 Annual Assessment. The Common Expense Assessment shall be made on an annual basis against all Units based upon the Association's advance budget of the cash requirements needed by it to provide for the administration and performance of its duties during such Assessment year. The omission or failure of the Board of Directors to levy the Assessment for any period shall not be deemed a waiver, modification or a release of the Owners from their obligation to pay.
Section 6.6 Installments: Assessments. The Board of Directors may determine that any Common Expense Assessment shall be payable in installments and may also elect to accelerate the installments remaining for such Assessment.
Section 6.7 Special Assessments. The Board of Directors may at any time, from time to time, determine, levy and assess a Special Assessment applicable to that particular assessment year for the purpose of defraying, in whole or in part, payments for any operating deficit and/or unbudgeted costs, fees and expenses of any construction, reconstruction, repair, demolition, replacement or maintenance of a capital improvement and any fixtures or personal property related thereto, and any acquisition of real property. Such Special Assessment shall be levied as follows:
6.7.1 Any such Assessment shall have the assent of two-thirds (2/3) of the votes of members who are present (as that term is defined in the Bylaws) and voting at a meeting duly called for that purpose. Any such Special Assessment shall be due and payable as determined by the Board of Directors. The term "capital improvements," as used herein, shall mean the construction, erection, installation, maintenance, repair or replacement of Common Elements (including those which may hereafter be constructed, erected or installed on the Real Estate) and of those portions of Units the Association is required to maintain pursuant to Section 5.2 above. Notice in writing setting forth the amount of such Special Assessment per Unit and the due date for payment thereof shall be given to the Owners not less than thirty (30) days prior to such due date.
6.7.2 Written notice of any meeting called for the purpose of taking any action authorized under Subsection 6.7.1 above, shall be sent to all Owners not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of Owners representing sixty percent (60%) of the votes in the Association shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (!h) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting.
Section 6.8 Lien Priority. The Assessment lien of the Association is prior to all other liens and encumbrances on a Unit except: (i) restrictions and easements Recorded before February 1, 1984; (ii) First Mortgages Recorded prior to July I, 1992; (iii) First Mortgages Recorded on or after July 1, 1992 to the extent set forth in the Act; and (iv) liens for real estate taxes and other governmental assessments or charges against the Unit. This Section does not affect the priority of mechanics or materialmens' liens. The lien of the Association under this Article is not subject to the provisions of
any Homestead exemption as allowed by state or federal law. Sale or transfer of any Unit shall not affect the lien for Assessments except that the sale or transfer of any Unit pursuant to foreclosure of any First Mortgage or any proceeding in lieu thereof, including deed in lieu of foreclosure, or cancellation or forfeiture shall only extinguish the lien of Assessment as provided by applicable law. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure, nor cancellation or forfeiture shall relieve any Owner from continuing liability for any Assessment charges thereafter becoming due nor from the lien thereof.
Section 6.9 Reserves/Surplus. The Association shall establish an adequate reserve fund for the maintenance, repair and replacement of those Common Elements and the portions of Units the Association is required to maintain pursuant to Section 5.2 above, that must be periodically maintained, repaired or replaced. Such reserve fund shall be funded through the monthly payments of the annual Common Expense Assessments. Any surplus funds derived from Assessments shall be transferred to the reserve fund or used for Association operations, in the Board of Director's sole discretion and by acceptance of a deed to his or her Unit, each Owner hereby directs the Board of Directors to make this determination each year.
Section 6.10 Effect of Nonpayment of Assessments. Any Assessment provided for in this Declaration, or any installment thereof, which is not fully paid within ten (10) days after the due date thereof, shall bear interest at the rate of twenty-one percent (21%) per annum or at such lesser rate as may be set by the Board of Directors from time to time from the due date, and the Association may assess a monthly late charge thereon. Failure to make payment within the sixty (60) days of the due date thereof shall cause the total amount of such Assessment for the remainder of that fiscal year to become immediately due and payable at the option of the Board. Further, the Association may bring an action at law or in equity, or both, against any Owner obligated to pay such overdue Assessment(s), or monthly or other installments thereof; and may also proceed to foreclose its lien against such Owner's Unit. An action at law or in equity by the Association against an Owner to recover a money judgment for unpaid Assessments, or any monthly or other installment thereof, may be commenced and pursued by the Association without foreclosing or in any way waiving the Association's lien therefor. The Association's costs of suit, expenses and reasonable attorneys' fees incurred simply by virtue of the failure of the Owner to timely pay Assessments when due, including attorneys' fees and costs for consultation and for preparing and Recording any lien notice, and the Association's costs of suit, expenses and reasonable attorneys' fees incurred for any such action and/or foreclosure proceedings, shall be included as part of the delinquent Assessment, shall be taxed by the court as a part of the costs of such action or foreclosure proceedings, and shall be recoverable by the Association from such Owner obligated to pay the same and from the proceeds of the foreclosure sale of such Owner's Unit. Foreclosure, whether completed or commenced but not completed, by the Association of its lien shall not be deemed to estop or otherwise preclude the Association from thereafter again foreclosing or commencing an action to foreclose its lien for any subsequent Assessments, or monthly or other installments thereof, which are not fully paid when due. The Association shall have the power and right to bid on or purchase any Unit at foreclosure or other legal sale, and to acquire and hold, lease, mortgage, and cast the votes appurtenant to such Unit, and to convey or otherwise deal with the same. Any grantee of a Unit (excluding the Association) shall be jointly and severally liable with the grantor for all unpaid Assessments against the Unit which was assessed prior to the conveyance, without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee therefore. If a foreclosure action is filed to foreclose any Assessment lien, and an Owner abandons or leaves vacant his or her Unit, the Board may take possession and rent said Unit or apply for the appointment of a receiver for the Unit without prior notice to the Owner. The rights of the Association shall be expressly subordinate to the rights of any First Mortgagee as set forth in its deed of trust or mortgage (including any assignment of rents), to the extent permitted under the Act.
Section 6.11 No Waiver or Abandonment. No Owner may be exempt from liability for payment of the Common Expenses by waiver of the use or enjoyment of any of the Common Elements or by abandonment of the Unit against which the Assessments are made. Section 6.12 Declaration is Notice. Recording of the Declaration constitutes record notice and perfection of the lien for Assessments. No further recordation is required. However, the Board of Directors may prepare and Record, a written notice setting forth the amount of any unpaid indebtedness, the name of the Owner, and a description of the Unit.
ARTICLE 7
RESTRICTIONS ON USE, ALIENATION AND OCCUPANCY
Section 7.1 Absolute Authority of the Board of Directors. The Board of Directors shall have complete authority and control to issue and amend restrictions on use, occupancy and alienation of the Units in addition to those contained in this Declaration. The Association shall have complete authority and control over the maintenance, repair, alteration and improvement of all Common Elements and Units (excluding the interior of Patio Homes) whether or not the Association is liable for the costs thereof. The strict application of the following limitations and restrictions in any specific case may be modified or waived, in whole or in part, by the Board of Directors or by an appropriate committee (subject to review by the Board of Directors) if such strict application would be unreasonable or unduly harsh under the circumstances. Any such modification or waiver must be in writing or must be contained in written guidelines or rules. Further, the Board of Directors has absolute authority to promulgate Rules concerning restrictions on use, occupancy or alienation which are not contrary to restrictions contained within this Declaration in accordance with the Act. It is expected that the Rules will govern the operations of the Community, the Owners and the Association in greater detail than this Declaration, and a specific provision of a Rule shall only be invalid to the extent that its strict application would contradict a specific provision in this Declaration. The Board of Directors may establish and enforce penalties for the infraction thereof. Owners shall be responsible for fines assessed against their Related Users. All monetary penalties enforced pursuant to this Declaration or the Rules shall be collectible as Assessments.
Section 7.2 Use Restrictions. Initial use restrictions applicable to the Real Estate are set forth in Section 7.5 below. However, in accordance with the duty to exercise reasonable business judgment, the Board of Directors may adopt Rules which modify, limit, create exceptions to, or expand the initial use restrictions set forth in Section 7.5 below.
Section 7.3 Owners' Acknowledgment. All Owners and Related Users of Units are given notice that use of their Units is limited by provisions of each of the Governing Documents as they may be amended, expanded and otherwise modified from time to time. Each Owner, by acceptance of a deed, acknowledges and agrees that the use and enjoyment and marketability of his or her Unit can be affected by this provision and that all restrictions upon the use and occupancy of a Unit may change from time to time.
Section 7.4 Rights of Owners. The Board of Directors shall not adopt any restriction on use alteration or occupancy in violation of the following provisions:
7.4.1 Speech. The rights of Owners to display political signs and symbols in or on their Units of the kinds normally displayed in or outside of residences located in single-family residential neighborhoods shall not be abridged, except that the Association may adopt reasonable time, place, and manner restrictions for the purpose of minimizing damage and disturbance to other Owners and Related Users which are in accordance with the Act.
7.4.2 Religious and Holiday Displays. The rights of Owners to display religious and holiday signs, symbols, and decorations inside structures on their Units of the kinds normally displayed in residences located in single-family residential
neighborhoods shall not be abridged, except that the Association may adopt reasonable time, place, and manner restrictions for the purpose of minimizing damage and disturbance to other Owners and Related Users.
7.4.3 Activities Within Dwelling. No rule shall interfere with the activities carried on within the confines of dwellings on the Units, except that the Association may prohibit activities not normally associated with property restricted to residential use, and it may restrict or prohibit any activities that create monetary costs for the Association or other Owners, that create a danger to the health or safety of occupants of other Units, that generate excessive noise or traffic, that create unsightly conditions visible outside the Unit, that block the views from other Units, or that create an unreasonable source of annoyance.
7.4.4 Pets. The Association may adopt reasonable Rules (including those which limit the number of dogs and/or cats) which are designed to minimize damage and disturbance to other Owners and occupants, including Rules requiring damage deposits, waste removal, leash controls, noise controls, occupancy limits based on size and facilities of the Unit and fair share use of the Common Elements. Nothing in the provision shall prevent the Association from requiring removal of any animal that presents an actual threat to the health or safety of resident or from requiring abatement of any nuisance or unreasonable source of annoyance in the Board of Directors' sole discretion.
7.4.5 No Restriction on Sale of a Unit. The right of an Owner to sell, transfer or otherwise convey their Unit shall not be subject to any right of first refusal or similar restriction and such Unit may be sold free of any such restrictions.
7.4.6 No Restrictions on Mortgaging of a Unit. No Rule shall impose any restriction on the right of the Owners to mortgage or otherwise encumber their Unit, nor shall there be a requirement for the use of a specific lending institution or particular type of lender.
Section 7.5 Initial Use Restriction. The following activities are prohibited within the Community unless expressly authorized (and in such cases, subject to such conditions as may be imposed) by the Board of Directors:
7.5.1 Subdivision. Subdivision of a Unit into two or more Units, or changing the boundary lines of any Unit;
7.5.2 Conditions to Conduct Business. Any business, profession, trade, or similar activity, except that an Owner may conduct business activities within the Unit so long as:
(a) the existence or operation of the activity is not apparent or detectable by sight, sound, or smell from outside the Unit;
(b) the activity conforms to all zoning requirement for the Community;
(c) the activity does not involve regular visitation of the Unit by clients, customers, suppliers, or other business invitees or door-to-door solicitation of Owners or Related Users; and
(d) the activity is consistent with the residential character of the Real Estate and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other Owners or Related Users, as may be determined in the reasonable discretion of the Board of Directors.
7.5.3 Leases. The term "lease", as used herein, shall include any agreement for the leasing or rental of a Unit and shall specifically include, without limitation, a month-to-month rental. Owners shall have the right to lease their Units only under the following conditions:
(a) All leases shall be in writing.
(b) All leases shall provide that the terms of the lease and the tenant's occupancy of the Unit shall be subject in all respects to the provisions of the Governing Documents, as the same may be amended from time to time, and that any failure by such tenant to comply with the provisions of these instruments, in any respect, shall be a default under the lease, said default to be enforceable by the Board of Directors, the Owner/landlord, or both.
(c) No lease shall be a term of less than ninety (90) days.
(d) Any Owner's right to lease is expressly conditional upon applicable Rules.
(e) Any Owner who leases his Unit shall forward a copy of the lease to the Association within ten (10) days after the execution by Owner and the tenant/lessee.
7.5.4 Restrictions on Vehicles. Parking or storing of vehicles within the Real Estate shall be subject to Rules enacted by the Board of Directors and provisions of this Declaration, additionally:
(a) No Unit and no Common Element shall be used as a parking, storage, display or accommodation area for any type of house trailer, camping trailer, boat trailer, hauling trailer, motor home, running gear, boat or accessories thereto, or any type of cargo or commercial van.
(b) No abandoned or inoperable vehicles of any kind shall be stored or parked within the Community. An "abandoned or inoperable vehicle" shall be defined as any automobile, truck, motorcycle, van, recreational vehicle or other device for carrying passengers, goods or equipment which has not been driven under its own propulsion for a period of two weeks or longer, or which does not have installed within it an operable propulsion system.
7.5.5 Nuisances. Any use, activity, or practice which is the source of or unreasonably interferes with the peaceful enjoyment or possession of a Unit or any portion of the
Common Elements or any portion of the Community. All valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the Community or a portion thereof shall be observed and may be enforced by the Association as if the same were contained in the Governing Documents.
7.5.6 No Annoying Lights, Sounds or Odors. No light shall be emitted from any portion of the Community which is unreasonably bright or causes unreasonable glare, and no sound or odor shall be emitted from any portion of the Community which would reasonably be found by others to be noxious or offensive. Without limiting the generality of the foregoing, no exterior spot lights, searchlights, speakers, horns, whistles, bells or other light or sound devices shall be located or used on any portion of the Community except with the prior written approval of the Board of Directors.
7.5.7 No Hazardous Activities. No activity shall be conducted on any portion of the Community which is or might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms shall be discharged upon any portion of the Community and no open fires shall be lighted or permitted on any portion of the Community.
7.5.8 Compliance with Insurance Requirements. Except as may be approved in writing by the Board of Directors, nothing shall be done or kept on the Community which may result in a material increase in the rates of insurance or would result in the cancellation of any insurance maintained by the Association.
7.5.9 Restriction on Signs and Advertising Devices. No sign, poster, billboard, advertising device or display of any kind shall be erected or maintained anywhere within the Community except such sign or signs as may be approved in writing by the Board of Directors.
7.5.10 Pet Restrictions. No animals except an aggregate of two (2) domesticated dogs or cats shall be permitted, excepting also domesticated birds and fish and other small domestic animals permanently confined indoors all in accordance with the Rules described in Subsection 7.4.4 above.
7.5.11 Restriction of Exterior Improvements. No Improvement to a Unit shall be constructed, erected, placed or installed within the Community, unless complete plans and specifications thereto shall have been first submitted to and approved in writing by, and in the sole discretion of, the Board of Directors.
ARTICLE 8
INSURANCE/CONDEMNATION
Section 8.1 Insurance Carried. The Association shall obtain and maintain in full force and effect at all times certain property, casualty, liability and other insurance as prescribed by the Act. All such insurance shall be obtained, to the extent possible, from responsible companies duly authorized and licensed to do insurance business in the State of Colorado, and shall:
8.1.1 Provide for a waiver of subrogation by the insurer as to claims against the Association, its members of the Board of Directors, officers, employees, agents and Owners.
8.1.2 Contain a severability of interest clause that the insurance cannot be canceled, invalidated or suspended because of the negligent or intentional acts of the Association, its officers, members of the Board of Directors, employees and agents.
8.1.3 Provide that the policy of insurance shall not be terminated, canceled or substantially modified with no less than thirty (30) days prior written notice to the Association. Any insurance policy may contain such deductible provisions as the Association deems consistent with good business practice and which shall be consistent with the requirements of any Institutional First Mortgagees. Any loss falling within the deductible portion of a policy shall be borne by the Owner of the property damaged or the party suffering the loss. The cost and expense of all insurance obtained by the Association shall be paid for out of Association funds collected by Assessments and otherwise as provided in this Declaration.
Section 8.2 Liability Insurance. The Association shall obtain adequate comprehensive policy of public liability and property damage liability insurance covering the Common Elements, including structural coverage of the Units, in such limits as the Board may from time to time determine, but not in any amount less than One Million Dollars ($1,000,000.00) per injury, per person, and per occurrence, and in all cases covering all claims for bodily injury or property damage. Coverage shall include, without limitation, liability for personal injuries, operation of automobiles on behalf of the Association, and activities in connection with the ownership, operation, maintenance and other uses of the Community. The foregoing liability insurance shall name the Association as the insured.
Section 8.3 Fidelity Insurance. The Association shall obtain adequate fidelity coverage or fidelity bonds to protect against dishonest acts on the parts of its officers, members of the Board of Directors, trustees and employees and on the part of all others who handle or are responsible for handling the funds of the Association, including persons who serve the Association with or without compensation. The fidelity coverage or bonds should be in an amount sufficient to cover the maximum funds that will be in the control of the Association, its officers, members of the Board of Directors, trustees and employees.
Section 8.4 Owners' Insurance. Each owner shall be responsible for obtaining property, casualty/hazard and public liability insurance for the Owner's Unit and all personal property and furnishings belonging to the Owner and the Improvements thereon and the Association shall not be responsible for providing any such insurance. In the event the Owner fails to obtain such insurance.
Section 8.5 Worker's Compensation and Employer's Liability Insurance. The Association shall obtain worker's compensation and employer's liability insurance and all other similar insurance with respect to its employees in the amounts and forms as may now or hereafter be required by law.
Section 8.6 Officers' and Directors' Liability Insurance. The Association shall obtain officers' and directors' personal liability insurance to protect the officers and directors from personal liability in relation to their duties and responsibilities in acting as officers and directors on behalf of the Association. Neither the term "officers" nor the term "directors" shall include
any officer, director, agent or employee of any professional manager or managing agent heretofore or hereafter employed by the Association but shall include all members of committees of the Board.
Section 8.7 Other Insurance. The Association may obtain insurance against such other risks, of similar or dissimilar nature, including flood insurance, as it shall deem appropriate with respect to the Association responsibilities and duties.
Section 8.8 Insurance Premium. Except as assessed in proportion to risk, if permitted under the terms of this Declaration, insurance premiums for the above provided insurance shall be a Common Expense to be included as a part of the annual Assessments levied by the Association.
Section 8.9 Managing Agent Insurance. The manager or managing agent, if any, shall be adequately insured for the benefit of the Association, and shall maintain and submit evidence of such coverage to the Association.
Section 8.10 Waiver of Claims Against Association. As to all policies of insurance maintained by or for the benefit of the Association and Owners, the Association and the Owners hereby waive and release all claims against one another and the Board, to the extent of the insurance proceeds available, whether or not the insurance damage or injury is caused by the negligence of or breach of any agreement by and of said persons.
Section 8.11 Annual Insurance Review. The Board shall review the insurance carried by and on behalf of the Association at least annually, for the purpose of determining the amount of insurance required.
Section 8.12 Adjustments by the Association. Any loss covered by an insurance policy described above shall be adjusted by the Association, and the insurance proceeds for that loss shall be payable to the Association, and not to any Institutional First Mortgagee or other such holder of a First Mortgage. The Association shall hold any insurance proceeds in trust for the Association, Owners and Institutional First Mortgagees or other holders of First Mortgages as their interests may appear. The proceeds must be distributed first for the repair or restoration of the damaged property, and the Association, Owners and Institutional First Mortgagees or other holders of First Mortgages are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the damaged property has been completely repaired or restored. The Rules may include nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment. To the extent the Association settles claims for damages to real property, it shall have the authority to assess negligent Owners causing such loss or benefiting from such repair or restoration all deductibles paid by the Association. In the event that more than one Unit is damaged by a loss, the Association in its reasonable discretion may assess each Owner a pro rata share of any deductible paid by the Association. Further, each and every Owner hereby assigns to the Board his or her statutory right to submit claims to companies providing the Association with insurance coverage.
Section 8.13 Duty to Repair. Any portion of the Community for which insurance is required or permitted under this Article which is damaged or destroyed must be properly repaired or replaced as provided in the Act.
Section 8.14 Condemnation and Hazard Insurance Allocations and Distributions. In the
event of a distribution of condemnation proceeds or hazard insurance proceeds to the Owners, the distribution shall be as the parties with interests and rights are determined or allocated by record, and pursuant to the Act.
ARTICLE 9
DESIGN REVIEW
Section 9.1 Design Review. Each Owner, by acceptance of a deed or other instrument conveying an interest in a Unit, agrees Improvements within the Community must be made in accordance with the Design Guidelines adopted by the Board.
Section 9.2 Notice of Noncompliance. If, as a result of inspections or otherwise, the Board finds that any Improvement has been done without obtaining approval, or was not done in substantial compliance with the Design Review Guidelines, the Board shall provide notice of the particulars of the noncompliance and shall require the Owner of the Unit upon which such Improvements have been made to take such action as may be necessary to remedy the noncompliance. At the sole election of the Board of Directors, if such noncompliance is not remedied within thirty (30) days of the date set forth on the notice, the notice may be recorded.
Section 9.3 Nonliability of the Board of Directors Members. Neither the Board of Directors nor any member thereof shall be liable to the Association or to any Owner or person for any loss, damage or injury arising out of or in any way connected with the performance of the Board of Directors' duties under this Declaration or the Governing Documents unless due to an act or omission not in good faith or which involves intentional misconduct or a knowing violation of a law. The Board of Directors shall not be responsible for reviewing, nor shall its approval of any plans and specifications be deemed approval of, structural safety, engineering soundness, or conformance with building codes or any other laws or standards.
Section 9.4 Variances. The Board may authorize variances from compliance with any of the architectural provisions, Guidelines or Rules, when circumstances so warrant. Such variances must be evidenced in writing and must be signed by at least a majority of all the members of the Board of Directors. If such a variance is granted, no violation of the Covenants shall be deemed to have occurred with respect to the matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular property and particular provision in the particular instance covered by the variance.
Section 9.5 Scope of Judicial Review. The scope of judicial review of any action taken by the Association pursuant to this Article 9, including but not limited to the promulgation and enforcement of Design Guidelines and review, shall be limited to cases of fraud, bad faith, or lack of due process.
ARTICLE 10
ALLOCATED INTERESTS
The Common Expenses and the Votes in the Association shall be allocated to each Unit, calculated as follows: (i) The Common Expense Liability: On the basis of a fraction, the numerator is one and the denominator is the total number of Units within the Community (expressed as a percentage); and (ii) The Votes in the Association: On the basis of one Unit, one vote; cast in accordance with the provisions of the Bylaws.
ARTICLE 11
AMENDMENT AND TERMINATION
Section 11.1 Technical, Clerical, Typographical or Clarification Amendment. If the Board of Directors shall determine that any amendments to this Declaration shall be necessary in order to make non-material changes, such as for the correction of a technical, clerical or typographical error or clarification of a statement, then, subject to the following sentence of this Section 11.1, the Board of Directors shall have the right and power to make and execute any such amendments without obtaining the approval of any Owner.
Section 11.2 Necessary to Exercise Authority of Association Documents. The Board of Directors shall have the authority to execute amendments to this Declaration or to the Plat which are reasonably necessary in order to perform duties authorized by this Declaration.
Section 11.3 Attorney in Fact. In furtherance of the foregoing, a power coupled with an interest is hereby reserved and granted to the Board of Directors to make or consent to an amendment under this Article 11 on behalf of each Owner and holder of a Mortgage. Each deed, Mortgage, other evidence of obligation or other instrument affecting a Unit and the acceptance thereof shall be deemed to be a grant and acknowledgment of, and a consent to the reservation of, the power of the Board of Directors to make, execute and Record an amendment under this Section.
Section 11.4 Amendment of Declaration by Owners. Except as otherwise provided in this Declaration, and subject to provisions elsewhere contained in this Declaration requiring the consent of others, any provision, covenant, condition, restriction or equitable servitude contained in this Declaration may be changed or repealed, and any such provision added to this Declaration at any time and from time to time upon approval of the Board of Directors and the Owners representing one more than half of all Units.
Section 11.5 Recording of Amendments. To be effective, all amendments to or termination of this Declaration must be Recorded and must contain evidence of approval thereof. One method of satisfying the requirements of this Section is to Record a certificate of the Secretary of the Association, certifying that Owners representing the requisite percentage of the Units have given their written consent to the amendment. The Secretary must further certify that originals of such written consent by Owners along with the Recorded amendment are in the corporate records of the Association and available for inspection. No action to challenge the validity of an amendment adopted by the Association pursuant to this Article may be brought more than one (1) year after the amendment is recorded.
Section 11.6 Expenses. All expenses associated with preparing and recording an amendment to the Declaration shall be the sole responsibility of the Association as a Common Expense. Section 11.7 Termination. The Community may be terminated upon an affirmative vote of the Owners holding 100% of the Allocated Interests, and in accordance with Section 38-33.3-218 of the Act.
ARTICLE 12
GENERAL PROVISIONS
Section 12.1 Enforcement. The Association or an Owner or Owners may enforce the Covenants by proceedings at law or in equity against any person or persons, either to recover damages for such violation, including reasonable attorneys fees incurred in enforcing the Covenants, or to restrain such violation or attempted violation. Failure of the Association or of 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. The Board of Directors may post on a bulletin board at a conspicuous place within the Common Elements notices of any covenant violations by members and copies of any Recorded statements. Failure to post shall not affect the validity of any lien or covenant violation. Disputes which do not involve payment of sums and charges due to the Association, upon approval of both the Owner(s) and the Board of Directors, may be submitted to binding arbitration.
Section 12.2 Right to Pay Taxes and Insurance Premiums. Any Institutional First Mortgagee or other holder of a First Mortgage shall be entitled to pay any Assessments, taxes or other charges which are in default and which mayor have become a lien against a Unit.
Section 12.3 Severability. Each of the provisions of this Declaration shall be deemed independent and severable. If any provision of this Declaration or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of this Declaration which can be given effect without the invalid provisions or applications.
Section 12.4 Interpretation. The provisions of this Declaration shall be liberally construed to effectuate their purposes of creating a uniform plan for the development of the Units and of promoting and effectuating the fundamental concepts as set forth in the recitals of this Declaration. This Declaration shall be construed and governed under the laws of the State of Colorado.
Section 12.5 Singular Includes the Plural. Unless the context otherwise requires, the singular shall include the plural, and the plural shall include the singular, and each gender referral shall be deemed to include the masculine, feminine and neuter.
Section 12.6 Captions. All captions and titles used in this Declaration are intended solely for convenience of reference and shall not enlarge, limit or otherwise affect that which is set forth in any paragraph, section or article hereof.
Section 12.7 Term of Declaration. The provisions of this Declaration (and all Covenants) shall run with and bind the Real Estate in perpetuity, unless terminated pursuant to Section 11.7 above.
IN WITNESS WHEREOF, the president of the Association states that the foregoing Amended and Restated Declaration has been duly approved by the Owners and the requisite percentage of holders of First Mortgages, and, upon Recording, supersedes the Original Declaration, in its entirety.
PINE TERRACE HOMEOWNERS ASSOCIATION, a Colorado nonprofit corporation
by /s/ Robert Holzwarth its Vice President
EXHIBIT A DESCRIPTION OF THE REAL ESTATE
County of El Paso
State of Colorado.
Subject to only the terms, conditions, obligations and provisions of the following documents or exceptions to title: All taxes and assessments for the year 2005 and subsequent years, a lien, but not yet due or payable.