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BYLAWS OF LTE II OWNERS ASSOCIATION, INC. (A Nonprofit Corporation) ARTICLE I Name This organization shall be known as LTE II OWNERS ASSOCIATION, INC., a nonprofit Colorado Corporation, hereinafter referred to as the “Corporation”.
ARTICLE II Office The principal office of the Corporation shall be at 100 W. 29th St., Loveland, Colorado 80538, or such other location within the State of Colorado as the Board of Directors may determine from time to time.
ARTICLE III Application and Definitions The provisions of these Bylaws are applicable to Lakeside Terrace Estates P.U.D. Second Addition and Subdivision located in the City of Loveland, County of Larimer, Colorado. All present and future Owners and their tenants, future tenants, employees, assigns, guests, invitees, and any other person who might use the facilities in the Property in any manner, are subject to the regulations set forth in these Bylaws and in the Declaration of Protective Covenants recorded, or to be recorded in the Office of the Larimer County, Colorado, Clerk and Recorder’s Office.
Unless otherwise specifically provided herein, the capitalized terms in these Bylaws shall have the following meanings:
Articles of Incorporation. The Articles of Incorporation of the Association as the same may be amended from time to time.
Association. LTE II Owners Association, Inc., a Colorado nonprofit corporation, the members of which shall be all of the several Owners of the Lots within the Property.
Board. The duly elected Board of Directors of the Association.
Bylaws. The duly adopted Bylaws of the Association as the same may be amended from time to time.
Colorado Common Interest Ownership Act. The applicable provisions of Colorado statues known as the “Colorado Common Interest Ownership Act”, which is now codified as Article 33.3 of Title 38, Colorado Revised Statues, as may from time to time hereafter be amended.
Common Elements. Tracts “B,” “E,” “F,” “G,” “H,” and “I” of the Property and the Pedestrian Access and all irrigation and drainage facilities, including, without limitation, the detention pond and drainage facilities located from time to time on Tract “A” of the Property, and any additions to the Common Elements which may hereafter be made.
Declarant. The Owner of the Property whose signature is affixed to this Declaration, and any successor of assign to Declarant’s Rights hereunder with respect to any Development Rights, Special Declarant’s Rights, or Declarant Control of the Association.
Declaration. The Declaration of Protective Covenants for Lakeside Terrace Estates P.U.D. Second Addition and Subdivision as amended, changed, or modified from time to time.
Lots. Lots 1-3, Block 1; Lots 1-23, Block 2; Lots 1-25, Block 3, Lots 1-4, Block 4; and Lots 1-4, Block 5 as shown on the plat, and any other Lots hereafter created within or added to the Property.
Owner. The record fee Owner, or Owners if more than one of a Lot, including Declarant so long as Declarant owns any Lot. Owner shall include the seller of a Lot under any executor contract for sale or installment sale contract. Owner shall not include any person keeping an interest solely as security for satisfaction of an obligation.
Pedestrian Access. The walkway between McKenzie Court and Amber Drive, lying on the south side and a portion of the east side of Lot 10, Block 3 and the north side of Lot 4, Block 3. of the east side of Lot 10, Block 3 and the north
Plat. The Plat of Lakeside Terrace Estates P.U.D. Second Addition and Subdivision to the City of Loveland, Colorado as recorded in the records of the Larimer County Clerk and Recorder.
Property. All of the real Property shown on the Plat.
Successor. One or more persons who have been assigned or otherwise succeeded to all or a portion of the Declarant’s Development Rights, Special Declarant Rights and/or rights to control the Association.
ARTICLE IV Purposes In accordance with the provision of the Declaration, the Corporation shall have the responsibility of constructing, maintaining, repairing, replacing, operating, and otherwise providing for the continued use and operation of the Common elements; adopting the budgets, establishing and collecting all assessments; otherwise providing for and regulating the use of the Common Elements; and carrying out such functions, and exercising such powers as are granted by the Declaration, the Articles of Incorporation, the Colorado Nonprofit Corporation Act, and the applicable provisions of the Colorado Common Interest Ownership Act.
ARTICLE V Membership 5.01 Every Owner of a Lot shall, by virtue of such ownership, automatically be a member of the Corporation eligible for the rights and benefits of such membership.
Membership shall be appurtenant to and may not be separated from ownership of the Lot, and the transfer of ownership of a Lot shall not release the transferee from any obligations to the Corporation incurred prior to the time of such transfer.
5.02 Suspension. In addition to all other remedies provided for by the Declaration, and Colorado law, the Board of Directors shall have the power to suspend the privileges of membership of any member for failure to timely pay assessments or charges, or if, as provided in these Bylaws, a majority of the Board of Directors determines that a member or any agent, guest, or invitee has violated the Declaration, these Bylaws, or the rules and regulations for use of the Common Elements adopted by the Board.
ARTICLE VI Notice and Hearing Procedure 6.01 Suspension of Privileges and Levy of Fines. Pursuant to the Declaration, no vote may be cast or counted for an Lot for which assessments, fees, dues or other monies are in default of payment at the time votes are counted. In addition, in the event of a violation of the Declaration, these Bylaws, or the rules and regulations adopted pursuant to these Bylaws, the Board of Directors shall have the right, upon an affirmative vote of the majority of all Directors of the Board, in addition to all other remedies available pursuant to the Declaration, and the laws of the State of Colorado, to take all or any one or more of the following actions:
1) Suspend or condition the right of said member to use any of the Common Elements;
2) Suspend said member’s voting privileges as a member;
3) Levy appropriate fines and charges for such violation.
The member shall be given written notice of the violations, the effective date of any suspension, and the conditions or requirements to be met by the member in order to remove the suspension. Unless the Board determines by majority vote that the violation is of such nature as to require immediate suspension, the effective date of any such suspension shall be no earlier than thirty (30) days following mailing of the notice to the member by first class mail, or by certified mail, return receipt requested, at the address shown in the records of the Corporation for the member. Suspension resulting from non-payment of assessments, dues or fees shall be removed upon payment by the member of all amounts currently due, including interest, costs and attorney fees. The conditions and requirements for removing suspension for reasons other than non-
payment shall be left to the discretion of the Board of Directors and shall be reasonably related to and appropriate for the violation.
6.02 Hearing. Upon request of the member so suspended and/or fined, the Board of Directors shall hold a hearing no less than fifteen (15) days following receipt of the request for hearing. The hearing shall be held before the Board in an executive session and the member shall be given a reasonable opportunity to be heard upon the facts concerning the violation, and the appropriateness of fines or charges and any
condition or requirements placed upon the member to remove the suspension of privileges.
6.03 No Waiver, Remedies Cumulative, Exhaustion of Remedies. The failure of the Board to enforce the rules and regulation of the Association, these Bylaws, or the Declaration shall not constitute a waiver of the right to enforce the same thereafter. The remedies set forth in this Article and otherwise provided by these Bylaws and the Declaration, shall be cumulative and none shall be exclusive. However, the individual member must exhaust all available internal remedies of the Corporation prescribed by these Bylaws and any rules and regulations adopted by the Board, before that member may resort to a Court of law with respect to any action by the Board.
ARTICLE VII Voting 7.01 Voting Rights. Declarant has reserved the right to appoint and remove the members of the Board of Directors and the Officers of the Association and the members of the Architectural Control Committee, as set forth in the Declaration and Article IX hereafter subject to such rights of Declarant, and further subject to actions to be taken by Lot Owners other than Declarant as provided in the Declaration, these Bylaws or the Colorado Common Interest Ownership Act, each Lot whose membership is in good standing shall be entitled to cast one (1) vote.
7.02 Designation of Voter. For each Lot, there shall be designated by the Owner one person authorized to cast all votes allowed the parcel. Such designation shall be in writing and shall be signed by all persons deemed necessary by the Board of Directors and delivered to the Secretary of the Corporation prior to the time the votes are cast. If no such designation has been made, the vote for such Lot may be cast as set forth in Section 38-33.3-310, of the Colorado Common Interest Ownership Act.
7.03 Manner of Voting. No votes shall be cast or allowed for any parcel whose Owner membership is not in good standing. All votes shall be cast in person, unless pursuant to voting by mail in accordance with these Bylaws, or by written proxy executed in writing by the person shown upon the records of the Corporation to be designated by the Owner to cast such votes, or his or her duly authorized attorney-in- fact.
7.04 No Cumulative Voting. Cumulative voting shall not be permitted.
ARTICLE VIII Membership Meetings 8.01 Annual Meetings. A regular annual meeting of the members of the Corporation may be held in November, 1994, and unless otherwise established by the Board of Directors each subsequent regular annual meeting of the members shall be held in November of each year thereafter in the State of Colorado at a time and location to be designated by the Board of Directors. The place of the meeting shall be shown on the notice to the members of such meeting.
8.02 Special Meetings. Special meetings of the members of this Corporation may be called at any time by the President or a majority of the Board of Directors or upon the written request of members holding not less than twenty percent (20%) of the votes which may be cast.
8.03 Notice. A written or printed notice of all regular or special meetings of the members shall be prepared by the Secretary of the Corporation and by him or her delivered personally to each member or mailed to the last known post office address of record of each member not less than ten (10) days nor more than fifty (50) days before the date of such meeting. All notices of meetings shall state the purposes and agenda of the meeting including the general nature of any proposed amendment to the Declaration of these Bylaws, any budget changes, and any proposal to remove an officer or a member of the Board.
8.04 Quorum. A quorum is deemed present throughout any meeting of the Association if persons entitled to cast twenty percent (20%) of the votes which may be cast for election of the Board are present, in person or by proxy, at the beginning of the meeting. If less than a quorum be present, the meeting may be adjourned by those present without notice other than announcement to those members present or represented, until some subsequent date, not more than sixty (60) days following the preceding meeting. Unless otherwise provided in the Declaration, the Articles of Incorporation or elsewhere in these Bylaws, the affirmative vote of a majority of memberships in good standing and represented in person or by written proxy at a meeting at which a quorum is present shall be necessary to transact business and to adopt decisions binding on all members.
8.05 Proxies. Representation by written proxy shall be allowed and the instrument authorizing the proxy to act at the meeting shall be exhibited at the time of such meeting when called and filed with the Secretary. All proxies shall be revocable and shall automatically terminate upon conveyance by the member of his ownership of a Lot. A proxy is void if it is not dated or it is purports to be revocable without notice. No proxy shall be valid after eleven (11) months from its date of execution unless otherwise provided for in the proxy. A proxy may be revoked only by actual notice to the person presiding over a meeting of the Association.
8.06 Waiver of Notice. Any member may at any time waive any notice required to be given under these Bylaws. All the members may take action unanimously by signing a written consent thereto.
8.07 Action Without Meeting. Any issue, question, election of directors or other proposition that might be brought before an annual or special meeting of members may be decided by ballot distributed and voted by mail, pursuant to instructions adopted by resolution of the Board of Directors; provided that at least fifty-one (51%), or such other percentage as may be required by the Declaration, these Bylaws or the Colorado Common Interest Ownership Act for the action under consideration, of the eligible votes shall be validly cast by return mail addressed to the Secretary of the Corporation or delivered to the Secretary.
8.08 Minutes. Minutes or a similar record of the proceedings of meetings, when signed by the President or Secretary, shall be presumed truthfully to evidence the matters set forth therein. A recitation in the minutes of any such meeting that notice of the meeting was properly given shall be prima facie evidence that such notice was given.
ARTICLE IX Directors 9.01 Board of Directors, number and Election of Board Members. The Declarant shall, for the period of time hereafter provided, retain the right to appoint and remove the members of the Board of Directors and the officers of the Association and the members of the Architectural Control Committee (“Declarant Control”). The initial Board of Directors shall consist of three (3) persons appointed by the Declarant, each of whom shall serve at the pleasure of the Declarant or until his or her successor(s) is appointed by the Declarant; subject to the following:
a. Within sixty (60) days after conveyance to Purchasers of twenty-five percent (25%) of the Lots by Declarant, the Board of Directors shall be increased to four (4) members by the addition of one member to be elected by Owners other than Declarant, and thereafter three (3) Board members shall be appointed by the Declarant and one (1) Board member shall be elected annually by the Owners other than Declarant; and b. Within sixty (60) days after conveyance of 50% (fifty percent) of the Lots by Declarant, the Board of Directors shall be increased to six (6) members by the addtion of one (1) member appointed by the Declarant and one (1) member to be elected by Owners other than the Declarant, and thereafter four (4) Board members shall be appointed by the Declarant and two (2) Board members shall be elected by Owners other than the Declarant.thin sixty (60) days after conveyance of 50% (fifty percent) of the Lots by Declarant, the Board of Directors shall be increased to six (6) members by the addtion of one (1) member appointed by the Declarant and one (1) member to be elected by Owners other than the Declarant, and thereafter four (4) Board members shall be appointed by the Declarant and two (2) Board members shall be elected by Owners other than the Declarant.
member appointed by the Declarant and one (1) member to be elected by Owners other than the Declarant, and thereafter four (4) Board members shall be appointed by the Declarant and two (2) Board members shall be elected by Owners other than the Declarant.
9.01.1 Period of Declarant Control. The period of Declarant Control with respect to the Board shall terminate ten (10) years from the date of the first conveyance of a Lot to a Purchaser by Declarant, or the earlier occurrence of an event requiring termination under the Colorado Common Interest Ownership Act. Declarant may at any time voluntarily surrender the right to appoint and remove Board members, and in such event the Declarant may require for the duration of Declarant control that specified actions of the Board, as described in a recorded instrument executed by Declarant, be approved by Declarant before they become effective. Notwithstanding the foregoing, the period of Declarant Control to solely appoint the members of the Architectural Control Committee shall continue until the conveyance to a Purchaser of the last Lot in the Property not previously conveyed to a Purchaser, unless the provisions of the Colorado Common Interest Ownership Act otherwise require earlier termination. 9.01.2 Upon termination of the period of Declarant Control with respect to the Board, the Owners shall elect a Board of Directors of at least three (3) members, at least a majority of whom must be Owners other than Declarant. The Board members so elected shall elect the Officers of the Association. The Board members and Officers, unless otherwise required by the Colorado Common Interest Ownership Act shall take office upon election. Upon termination of the period of Declarant Control with respect to the Architectural Control Committee, the Board shall establish the number of members such of such Committee and appoint such members. 9.01.3 For purposes of determining the percentage of conveyance of Lots as it affects the Declarant’s rights of control to appoint and remove the members of the Board of Directors and the Officers of the Association, a conveyance of a Lot shall only be counted if such conveyance is to a Purchaser who has purchased a Lot with intent to reside thereat, and no transfer by Declarant shall be deemed as a conveyance for such purposes if the transferee is not such a Purchaser, or if such transferee is a Dealer or is a person who intends to dispose of or participate in the disposal to Purchasers of Lots owned by the Declarant or a successor to the Declarant. 9.02 Number and Term. Each Director shall hold office for one (1) year following his or her election. Directors may be re-elected to additional terms and there shall be no limit to the number of terms a duly elected member may serve.
9.03 Qualifications of Directors. Except for those members appointed by the Declarant, Directors shall be Owners (or persons designated to represent Owners who are not living persons) of Lots.
9.04 Vacancies and Removals. During the period of Declarant Control, the Declarant shall have the power to remove any of the members of the Board of Directors, and to fill any vacancy occurring in the Board of Directors; provided, that any member of the Board of Directors elected by Lot Owners other than the Declarant shall be removed, and any vacancy for such member filled, by a vote of sixty-seven (67%) of Lot Owners other than the Declarant present and entitled to vote at a meeting of the Owners of the Association at which a quorum is present. ARTICLE X Duties of Directors 10.01 General Powers and Duties. It shall be the duty of the Board of Directors to exercise general supervision over the management of the affairs of the Corporation, to establish the fees, duties and assessments to be paid by memberships to achieve the purposes of the Corporation, and to receive and pass upon the reports of the President, Secretary and Treasurer, and to direct the officers there of in the general conduct of the Corporation. The Board shall have control of any books, papers, or documents of the Corporation in the hands of the officers.
10.02 Special Powers and Duties. In addition to and without limitation of the foregoing general powers and duties, and such powers and duties as are vested in the Board of Directors by virtue of the Declaration, the Articles of Incorporation, and the laws of the State of Colorado, the Board of directors is vested with, and responsible for, the following powers and duties:
A. Subject to the rights reserved to the Declarant during the period of Declarant Control, selection, appointment and removal of all officers, agents and employees of the Corporation and the fixing of compensation therefore. B. The power and duty to make and enforce such rules and regulations consistent with law, the Articles of Incorporation, the Declaration, and these Bylaws as the Board may deem necessary or advisable, for the use of the Common Elements and to establish penalties for the infraction thereof, including such fines, suspension of usage and suspension of voting rights as the Board may deem appropriate.
the Articles of Incorporation, the Declaration, and these Bylaws as the Board may deem necessary or advisable, for the use of the Common Elements and to establish penalties for the infraction thereof, including such fines, suspension of usage and suspension of voting rights as the Board may deem appropriate. C. To suspend the voting rights of a member, and the right to use of the Common Elements, during any period in which the member is in default in the payment of any assessments, charges or fines levied by the Association. D. With the approval of members representing at least eighty percent (80%) of the votes of memberships in good standing, the power, but not the duty to convey or encumber the Common Elements and borrow money and to incur indebtedness for the purposes of the Corporation, and to cause and to be executed and delivered therefore, in the Corporation’s name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, assignments, and hypothecations or other evidence of debt and securities therefore.
the votes of memberships in good standing, the power, but not the duty to convey or encumber the Common Elements and borrow money and to incur indebtedness for the purposes of the Corporation, and to cause and to be executed and delivered therefore, in the Corporation’s name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, assignments, and hypothecations or other evidence of debt and securities therefore. E. The power and duty to fix and levy assessments upon the members as provided in the Declaration for the purpose of the Corporation; including the payment of taxes and assessments upon real and personal property interests of the Corporation, and the establishment and maintenance of adequate reserves for replacements, emergency expenditures, and anticipated capital expenditures.
Declaration for the purpose of the Corporation; including the payment of taxes and assessments upon real and personal property interests of the Corporation, and the establishment and maintenance of adequate reserves for replacements, emergency expenditures, and anticipated capital expenditures. F. The power and duty to enforce the provisions of the Declaration, these Bylaws, rules and regulations adopted by the Board and other agreements of the Corporation.
and regulations adopted by the Board and other agreements of the Corporation. G. The power to contract for and pay for, as reasonably necessary, fire, casualty, blanket liability, malicious mischief vandalism, errors and omissions, and other insurance insuring members, the Corporation, the Board of Directors, the officers, agents, and employees of the Corporation, and other interested parties as the Board deems advisable.
liability, malicious mischief vandalism, errors and omissions, and other insurance insuring members, the Corporation, the Board of Directors, the officers, agents, and employees of the Corporation, and other interested parties as the Board deems advisable. H. The power to grant rights of use of the Common Elements.
I. To exercise for the Association all powers, duties and authorities vested in or delegated to the Association and not reserved to the Declarant or the membership by the other provisions of these Bylaws, the Articles of Incorporation, or the Declaration.
delegated to the Association and not reserved to the Declarant or the membership by the other provisions of these Bylaws, the Articles of Incorporation, or the Declaration. J. To exercise all powers and rights granted by the Colorado Nonprofit
Corporation Act, and the applicable provisions of the Colorado Common Interest Ownership Act not reserved to the Declarant or the membership.
Ownership Act not reserved to the Declarant or the membership. K. To employ a manager as the Board may deem necessary from time to time, and to prescribe the duties and delegate to such a manager as appropriate.
prescribe the duties and delegate to such a manager as appropriate. L. To designate and remove independent contractors or employees or agents as may be appropriate for the operation, maintenance and replacement of the Common Elements.
be appropriate for the operation, maintenance and replacement of the Common Elements. M. To cause or require all Officers, employees or agents having fiscal responsibilities to be bonded, as the Board may deem appropriate.
be bonded, as the Board may deem appropriate. 10.03 Books. The Board of Directors shall cause to be maintained a full set of books and records showing the financial condition of the affairs of the Corporation in a manner consistent with generally accepted accounting principles. A balance sheet and an operating (income) statement of the Corporation shall be prepared and distributed to members within ninety (90) days of the last day of the Corporation’s fiscal year. All financial statements contained in any such annual report for any fiscal year in which the gross income of the Corporation exceeds $75,000.00 shall be audited by an independent public accountant.
All books, records and papers of the Corporation shall be available for inspection and copying by any member of his or her duly appointed representative at the principal office of the corporation or at such other place within the property as the Board may prescribe, subject to reasonable rules established by the Board for the time of inspection and payment of costs of reproduction. Any appropriate Officer may issue, upon written demand by any Owner of a Lot or such Owner’s designee, or to a holder of a security interest in a Lot or its designee, and upon payment of a fee of $25.00, or such other reasonable fee as established by resolution hereafter by the Board from time to time, a certificate setting forth the amount of unpaid assessments currently levied against such Lot. If a certificate states an assessment has been paid, such certificate shall be conclusive evidence of such payment, such statement shall be furnished within fourteen (14) calendar days after receipt of the request, and shall have such binding effect as set forth in the Colorado Common Interest Ownership Act.
The Corporation shall keep and maintain in its office a book containing the name and address of each member and the person authorized to cast any votes on behalf of such member. Termination or transfer of membership shall be recorded in the book, together with such other information as the Board may deem necessary or appropriate.
10.4 Budget. The Board shall adopt, no less than annually, a periodic budget. Within thirty days (30) after adoption of any proposed budget the Board shall cause to be mailed by ordinary first class mail, or otherwise delivered, a summary of the budget to all Owners and shall set a date for a meeting of the Owners to consider ratification of the budget not less than fourteen (14), nor more than sixty (60) days after mailing or other delivery of the summary. Unless at that meeting Owners representing at least a majority of the votes eligible to be cast reject the budget, the budget is ratified, whether or not a quorum is present. In the event that the proposed budget is rejected, the periodic budget last ratified by the Owners shall be continued until such time as the Owners ratify a subsequent budget proposed by the Board.Within thirty days (30) after adoption of any proposed budget the Board shall cause to be mailed by ordinary first class mail, or otherwise delivered, a summary of the budget to all Owners and shall set a date for a meeting of the Owners to consider ratification of the budget not less than fourteen (14), nor more than sixty (60) days after mailing or other delivery of the summary. Unless at that meeting Owners representing at least a majority of the votes eligible to be cast reject the budget, the budget is ratified, whether or not a quorum is present. In the event that the proposed budget is rejected, the periodic budget last ratified by the Owners shall be continued until such time as the Owners ratify a subsequent budget proposed by the Board.
ARTICLE XI Officers 11.1 Designation and Term. The officers of this Corporation shall consist of a President, a Vice President, a Treasurer, and a Secretary, who shall during the period of Declarant control be designated by the Declarant. Upon termination of Declarant Control, the officers shall be elected by majority vote of the Board of Directors at their first meeting following each annual meeting of the members of the Board. The officers so elected shall be elected from the members of the Board of Directors or other persons as the :Board determines appropriate. Such officers shall hold their respective offices for the term of one year or until their successors are elected and shall qualify, unless they shall resign, be removed, or become disqualified.Secretary, who shall during the period of Declarant control be designated by the Declarant. Upon termination of Declarant Control, the officers shall be elected by majority vote of the Board of Directors at their first meeting following each annual meeting of the members of the Board. The officers so elected shall be elected from the members of the Board of Directors or other persons as the :Board determines appropriate. Such officers shall hold their respective offices for the term of one year or until their successors are elected and shall qualify, unless they shall resign, be removed, or become disqualified.
The following persons are hereby designated as the initial officers of the Corporation:
President: Lynn Bell
Vice President: Steven L. Buckner
Secretary: Herbert J. Bell
Treasurer: Herbert J. Bell
11.02 Multiple Officers. Any two of the said officers, except the offices of President and Secretary, may be held by the same person if the Board of Directors shall so determine.
11.03 Vacancies. In case a vacancy or acancies shall occur in any of said officers, the same may be filled for the remainder of the unexpired term of the Board of Directors.
11.04 Removal of Officers. Subject to the rights reserved to the Declarant during the period of Declarant Control, upon affirmative vote of the majority of the entire Board of Directors, any officer may be removed, either with or without cause, and his or her successor elected at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors called for such purpose.
11.05 Other Officers. During the period of Declarant Control of the Declarant, and after the period of Declarant Control the Board of Directors, may from time to time appoint other officers of the Corporation, who shall perform such duties as may be assigned them. They shall hold such offices at the pleasure of the Declarant, or the Board, as applicable.
11.06 Compensation. No officer shall receive any compensation for services performed in the conduct of the Corporation’s business unless such compensation is approved by the vote of written consent of the Class B member and that of members representing at least a majority of the eligible votes of the Class A members in good standing; provided, that (1) nothing herein contained shall be construed to preclude any officer from serving the Association in some other capacity and receiving compensation therefore; and (2) any officer may be reimbursed for his or her actual expenses incurred in the performance of his or her duties.
11.07 Committees. The Board may appoint such committees as deemed appropriate in carrying out its purpose.
11.08 Delegation of Duties and Powers. Upon resolution duly adopted, the Board may delegate any of its powers and duties or that of the Officers of the Association to other persons or to a managing agent. If any power relating to collection, deposit, transfer, or disbursement of Association funds to other persons or to a managing agent is made, the Board shall require the following:
a. The person or agent to whom the power or duty is delegated shall maintain fidelity insurance coverage or a bond in the amount not less
than $50,000.00 or such higher amount as the Board may require; and
b. That such person shall maintain all funds and accounts of the Association separate from the funds and accounts of all others and shall maintain all reserve accounts of the Association separate from the operational accounts of the Association; and, Association separate from the funds and accounts of all others and shall maintain all reserve accounts of the Association separate from the operational accounts of the Association; and,
c. That an annual accounting for Association funds and a financial statement be prepared and presented to the Association by the
managing agent, a public accountant, or a certified public accountant.
The foregoing requirements shall be mandatory for so long as the same may be required by the Colorado Common Interest Ownership Act, and thereafter shall be discretionary with the Board. required by the Colorado Common Interest Ownership Act, and thereafter shall be
ARTICLE XII Duties of Officers 12.01 Duties of President. It shall be the duty of the President to preside at all meetings of the members and Directors of the Corporation. The President shall sign all contracts and other instruments in writing authorized by the Board of Directors to be executed. The President shall be ex-officio a member of all committees and shall have the active management of and general supervision over the affairs of the Corporation. The President shall perform such other duties as may be required of the President by law, by these Bylaws, and by the Board of Directors, and in general shall perform the duties and functions usually pertaining to and vested in the president of a corporation.
12.02 Duties of Vice President. It shall be the duty of the Vice President in case of absence, sickness, or other disability preventing the President from performing, or the refusal of the President to perform, the duties of that office, to perform and discharge the duties and functions of the President, and such other duties as may be required of the Vice President by the Board of Directors.
12.03 Duties of Secretary. The Secretary shall be ex-officio Secretary of the Board of Directors, and of all standing committees. It shall be the duty of the Secretary to give proper notice of all meetings of the members and of the Board of Directors of the Corporation, and to attend all such meetings and act as the clerk thereof: to keep, record, and preserve the minutes of all meetings of the members and directors in appropriate books; to sign all such minutes as Secretary, and to perform like duties for any standing committees when required; to have the custody of the corporate seal and records of the Corporation; to attest the affixing of the seal to all contracts and other instruments in writing executed under the corporate of the Corporation no properly belonging in the custody of the Treasurer; and generally to perform such duties as usually pertain to the office of the Treasurer: and such as may be specifically assigned
by the Board of Directors. The Secretary shall also attend to the filing of all papers and
reports required by law to be filed.
12.04 Duties of the Treasurer. The Treasurer shall be the custodian of the funds of the Corporation, and all securities, valuable papers and documents connected with and pertaining to the business of the Corporation which shall be kept in such depositories and in such manner as directed by the Board of Directors. The Treasurer shall disburse the funds of the Corporation in accordance with directions from the Board of Directors. The Treasurer shall keep a complete and proper record and account thereof, and vouchers for all funds disbursed, all of which shall be accessible for inspection by other officers or by the Board of Directors. The Treasurer shall render to the Board of Directors, whenever they may require, an account of all transactions and the financial condition of the Corporation, and perform such other duties as may be prescribed by the Board of Directors. At the discretion of the Board of Directors, the Treasurer may be required to give a good and sufficient bond with sureties thereon for the faithful performance of the duties of the office.
ARTICLE XIII Meetings of Directors 13.01 Regular Meetings. The Board of Directors shall meet regularly, at least annually, at a place in the State of Colorado designated by the Board.
13.02 Special Meetings. A special meeting of the Board of Directors may be called by or at the request of the President or any two (2) Directors upon less than three (3) days notice to each Director.
13.03 Quorum. A quorum is deemed present throughout any meeting of the Board if persons entitled to cast fifty percent (50%) of the votes on that Board are present at the beginning of the meeting, and if a lesser number of the Directors are present at said meeting, a majority of the Directors present may adjourn the meeting without further notice. In instances of a tie vote of a quorum of Directors, the way in which the President (or Vice President, if acting as President) voted shall carry; if neither the President or vice President is present, the way in which the Secretary voted shall carry, and if the Secretary is not present, the way the Treasurer voted shall carry. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number, is required by law or by these Bylaws..In instances of a tie vote of a quorum of Directors, the way in which the President (or Vice President, if acting as President) voted shall carry; if neither the President or Vice President is present, the way in which the Secretary voted shall carry, and if the Secretary is not present, the way the Treasurer voted shall carry. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by these Bylaws. sent, the way in which the Secretary voted shall carry, and if the Secretary is not present, the way the Treasurer voted shall carry. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number, is required by law or by these Bylaws..
13.04 Notice. Any Director may at any time waive the notice required to be given under these Bylaws, or action may be taken by unanimous written consent thereto without meeting. Any Board member may participate in a meeting by conference telephone or other communications equipment by which all persons participating can hear each other at the same time, and such participating shall constitute presence in person at the meeting.
ARTICLE XIV Obligations of Members 14.01 Payment of Assessments. All members are obligated to pay, in accordance with the provisions of the Declaration, all assessments and other charges, fees or fines imposed by the Corporation. All delinquent payments due shall be enforced, collected, and foreclosed in the manner provided in the Declaration.
14.02 Notice of Address and Mortgages. Every member shall give written notice to the Secretary of the Corporation of his or her current address, and any change in such address. In addition, each member who encumbers his or her Lot shall notify the Secretary of the Corporation of the name and address of the beneficiary of such encumbrance, and shall like wise notify the Secretary of any release or discharge of such encumbrance.
14.03 Notice of Ownership Transfer. Every member shall report to the Secretary of the Corporation any change in ownership of a Lot, and shall provide any new designation of the person authorized to cast the vote for such Lot. The full names and addresses of all Owners and the person designated to cast the vote for a Lot shall also be provided at the time of any change in ownership, or any change in address or designation of the person authorized to cast the vote.
14.04 Rules and Regulations. Each member is required to comply with the rules and regulations adopted by the Board, and to further obtain compliance with such rules and regulations by all tenants, invitees, guests and other persons making use of the Property under authorization or invitation from such member.
ARTICLE XV Corporate Seal The Board of Directors shall have the power to select, and to alter at the pleasure of the Board, a corporate seal as it may deem appropriate.
ARTICLE XVI Indemnification and Bonding 16.01 Indemnification. The Corporation shall indemnify its Directors, Officers, employees, agents and members to the fullest extent allowed by law, including but not necessarily limited to that provided by Section 7-22-101.5, Colorado Revised Statues, and other statute or rule of law applicable. The Directors, Officers and voting members of the Corporation shall have the benefit of the limitations on personal liability for injury to person or property as provided by law, including but not necessarily limited to Section 38-33.3-311, and Sections 7-5-119 and 7-108-402, Colorado Revised Statues, and any other applicable statue or rule of law.
16.02 Fidelity Bonds. The Board of Directors may require that all officers and employees of the Corporation handling or responsible for Corporation funds shall furnish adequate fidelity bonds. The premiums on such bonds shall be paid by the Corporation.
ARTICLE XVII Authorization No officer or member of this Corporation shall authorize or incur any debt or obligation on its behalf by order of or pursuant to authority granted by the Board of Directors.
ARTICLE XVIII Fiscal Procedures 18.01 Execution of Documents. All written obligations of the Corporation, including acceptances, contracts, agreements, deeds and all other instruments in writing shall be signed with the corporate name by the President, or in the President’s absence, sickness, or other disability, by the Vice President, and the corporate seal shall be affixed and attested by the Secretary.
18.02 Checks and Funds. All checks drawn on Corporation funds shall be signed with the corporate name by those officers, one or more, as may be authorized by the Board of Directors from time to time. The funds of this Corporation shall be deposited in such bank or banks, as the Board of Directors may from time to time determine.
18.03 Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors, and having so determined, is subject to change from time to time as the Board of Directors shall so determine.
18.04 Reserves. The funds collected by the Board of Directors from the members which are attributable to the replacement reserves, for maintenance costs which cannot normally be expected to occur on an annual basis, for emergency expenses, and for capital improvements, shall at all times be held in trust for the members and shall not be commingled with other assessments collected from the members.
ARTICLE XIX Public Entity Assumes Obligations At any time as any governmental or quasi-governmental entity shall undertake to maintain the Common Elements, the Board of Directors may dissolve the corporation, which dissolution shall be made a matter of public record.
ARTICLE XX General Provisions 20.01 Amendments. Except as may otherwise be required by the Declaration, the Articles of Incorporation, or the applicable provisions of the Colorado Common Interest Ownership Act, these Bylaws, or any part thereof, may be amended, added to, or modified:
1) during the period of Declarant Control by the majority vote of the Board of Directors if also consented to by the Declarant; and
2) after the period of Declarant Control, at any regular or special meeting of the membership at which a majority of the total votes of memberships qualified to vote is cast in favor of such amendment or modification; provided, however, that the proposed amendment shall be set forth in full in the notice of such meeting, and further provided that, no amendment shall be effective which is in contravention to the Declaration, or the Articles of Incorporation and no amendment affecting the rights of the Declarant shall be effective unless consented to in writing by the Declarant. The President, Vice President, or Secretary of the Association may each prepare, execute, certify and record amendments to the Declaration on behalf of the Association.
20.02 Coordination With Other Provisions. In the case of any conflict between the Articles of Incorporation and these Bylaws, the Articles shall control; and in the case of any conflict between the Declaration and these Bylaws, the Declaration shall control;
and in the case of any conflict between rules or regulations adopted by the Board and these Bylaws, these Bylaws shall control.
THE UNDERSIGNED, being all of the members of the Board of Directors of the Corporation hereby confirms that the foregoing Bylaws of said Corporation were adopted by our act on the 21st day of April, 1994. [original signed by]
STEVEN L. BUCKNER, DIRECTOR
[original signed by]
HERBERT J. BELL, DIRECTOR
[original signed by]
LYNN BELL, DIRECTOR
CERTIFICATE OF SECRETARY I, undersigned, do certify that:
1. I am the duly approved and acting Secretary of LTE II OWNERS ASSOCIATION;
and
2. The foregoing Bylaws, comprised of fifteen 15) 1 pages including this page,
constitute the Bylaws of the Corporation duly adopted organizational meeting of the
foregoing signed persons being all of the members of the Board of Directors of the
corporation as of the 21st day of April, 1994.
IN WITNESS WHEREOF, I have hereunto subscribed my hand and affixed the
seal of the Corporation this 21st day of April, 1994.
[original signed by]
HERBERT J. BELL, SECRETARY
1 The original typed copy of the Bylaws was 15 pages long.
This retyped copy covers seventeen (17) pages, not including the attached disclaimer.
DISCLAIMER Why this copy?
• It became apparent that not every current homeowner had been furnished with a copy of the
Bylaws.
• The copies of the Covenants being furnished were of poor size and quality.
• The Board felt it necessary to have copies of both the Bylaws and Covenants in electronic format for easy transmission. (Electronic copies will be available in Adobe Acrobat to prevent tampering.)
Therefore, it was decided by the Board to retype the original documents word for word,
and to furnish a clean copy of both documents to each member of LTE II Owners
Association.
These documents have been checked and rechecked for errors, omissions, etc., to the best of our ability. Should there be a discrepancy between these retyped documents and the original documents on file with the Larimer County Clerk, the original documents shall be considered correct.
Please forward information on any errors in these documents to any member of the
Board. If necessary, an errata sheet will be published and sent to each member within 90 days of publication. Subsequent errata sheets will be done yearly in conjunction with the annual HOA meeting held in November.
Respectfully submitted,
Glen A. Cox
President, LTE II Owner’s Association
December, 2009
DECLARATION OF PROTECTIVE COVENANTS
FOR LAKESIDE TERRACE ESTATES P.U.D. SECOND ADDITION AND SUBDIVISION
TO THE CITY OF LOVELAND, COLORADO 80537
(Registered 4/25/1994 at 16:24 at Larimer County Recorder’s Office)
Fee: $145.00
RECITALS
1. Declarant is the Owner in fee of all the lands according to and identified in the plat of Lakeside Terrace Estates P.U.D. Second Addition and Subdivision to the City of Loveland, County of Larimer, State of Colorado. Such development and lands being sometimes referred to hereafter as the “Property”.
2. It is the intention and desire of the Declarant to set forth this Declaration of Protective Covenants in order to promote the harmonious and attractive development of the Property for the health, comfort, safety, convenience, and general welfare of the present and subsequent Owners of the Property and each portion thereof.
NOW THEREFORE, Declarant hereby declares that the Property is subject to the following protective covenants which shall run with the land for the benefit of and be binding upon each present and subsequent Owner of any right, title or interest in any portion of the Property and their respective heirs, grantees, successors, representatives, and assigns.
ARTICLE I
DEFINITION OF TERMS
As used in this Declaration, the following terms shall have the meanings indicated:
Architectural Control Committee (ACC). The committee described in Article VIII of the Declaration. (p. 25)
Articles of Incorporation. The Articles of Incorporation of the Association as the same may be amended from time to time.
Association. LTE II Owners Association, Inc., a Colorado nonprofit corporation, the members of which shall be all of the several Owners of the Lots within the Property.
Board. The duly elected Board of Directors of the Association.
Bylaws. The duly adopted Bylaws of the Association as the same may be amended from time to time.
Colorado Common Interest Ownership Act. The applicable provisions of Colorado statutes known as the “Colorado Common Interest Ownership Act”,” which is now codified as Article 33.3 of Title 38, Colorado Revised Statutes, as may from time to time hereafter be amended.
Common Elements. Tracts “B,” “E,” “F,” “G,” “H,” and “I” and the Pedestrian Access, and all irrigation and drainage facilities, including, without limitation, the detention pond and drainage facilities located from time to time on Tract “A,” and any additions to the Common Elements which may hereafter be made.
Dealer. Means a person in the business of constructing homes or selling Lots for such person’s own account.
Declarant. The Owner of the Property whose signature is affixed to this Declaration, and any successor or assign to Declarant’s Rights hereunder with respect to any Development Rights, Special Declarant’s Rights, or Declarant Control of the Association.
Declaration. This Declaration as amended, changed, or modified from time to time.
Lot. Lots 1-3, Block 1; Lots 1-23, Block 2; Lots 1-25, Block 3; Lots 1-4, Block 4; and Lots 1-4, Block 5 as shown on the Plat, and any other Lots hereafter created within or added to the Property.
Owner. The record fee Owner, or Owners if more than one of a Lot, including Declarant so long as Declarant owns any Lot. Owner shall include the seller of a Lot under any executory contract for sale or installment sale contract. Owner shall not include any person keeping an interest solely as security for satisfaction of an obligation.
Pedestrian Access. The walkway between McKenzie Court and Amber Drive, lying on the south side and a portion of the east side of Lot 10, Block 3, and the north side of Lot 4, Block 3.
Plat. The Plat of Lakeside Terrace Estates P.U.D. Second Addition and Subdivision to the City of Loveland, within the County of Larimer, State of Colorado as in the records of the Larimer County Clerk and Recorder.
Property. All of the real Property shown on the Plat, and any other property hereafter added.
Purchaser. Purchaser means a person, other than a Declarant or a Dealer who by means of a transfer acquires a legal or equitable interest in a Lot, other than: (a) a leasehold interest in a Lot of less than forty (40) years, including renewal options, with the period of the leasehold interest, including renewal options, being measured from the date the initial term commences; or (b) a security interest.
Successor. One or more persons who have been assigned or otherwise succeeded to all or a portion of the Declarant’s Development Rights, Special Declarant Rights and/or rights to control the Association.
Tract ”A”. Tract “A” as shown on the Plat.
ARTICLE II
LAND USE CONTROL
2.01 Land Use and Building Type. Except as may expressly be provided elsewhere in this Declaration, no Lot shall be used except for residential purposes except that doctors, lawyers, architects, accountants, real estate brokers and professional consultants may maintain professional offices within their homes so long as they do not have employees working on the premises who reside off the premises. No building other than outbuildings permitted by paragraph 2.02, shall be erected, altered, placed, or permitted to remain on any Lot other than one (1) detached single family dwelling, which must include a private attached or detached garage for no less than two (2) and no more than three (3) vehicles. The Architectural Control Committee may authorize a garage for more than three automobiles if the Architectural Control Committee determines that the same is compatible with the harmonious and attractive development of the Property. Dwellings must be built on-site, and no pre-fabricated, previously built, or modular homes shall be permitted upon the Property. Dwelling and garage construction must be commenced no later than three (3) years from the date the Owner obtains title to a Lot and must be completed within one (1 year after the date of construction commencement.
2.02 Out Buildings. Subject to the prior approval of the ACC, permitted out buildings are pool houses, or other structures determined by the ACC to be compatible with the purposes and intent of this Declaration. In no case shall out buildings exceed the height of one (1) story above finished grade level. Out buildings shall have shake shingles or slate or tile roofs and must be of similar color, design, and quality with the principal dwelling on the Property. Storage sheds are not permitted out buildings.
2.03 Dwelling Quality and Size. Except where constructed on a slope permitting a full walkout, no building shall be erected on any Lot which exceeds the height restrictions hereafter set forth, and in no event shall any building be erected on any Lot which exceeds two (2) stories when viewed from the ground floor level. For purposes of this section, the ground floor level shall be that level of the dwelling at or closest to finished grade level which is most immediately reached by the front entrance to the dwelling. If any dispute arises as to what constitutes the ground floor level of a dwelling, the decision of the ACC shall be conclusive and controlling. No trailer, basement, tent, shack, garage, barn, or other building other than a completed dwelling shall be used as a residence, temporarily or permanently at any time, nor shall any structure of a temporary character be used as a residence. Unless otherwise approved by the ACC, the front exterior of all buildings shall be not less than thirty percent (30%) masonry and shall have shake, tile, slate or 40-50 year warranted composition roofs. (Amended April, 2004) The preferred roof pitch is six-twelfths (6/12ths) and unless otherwise approved by the ACC the minimum roof pitch shall be five-twelfth (5/12ths). The ACC may in its discretion approve other roof pitches. Buildings shall meet the following height and size criteria:
2.03.1 All Lots in Block 1 and 2: Except for multi-level homes, the principal dwelling shall have a minimum fully enclosed ground floor area devoted to living purposes exclusive of porches, terraces and garages of 1400 square feet for a one story dwelling and a minimum of 1050 square feet on the ground floor of a two story dwelling. Multi-level homes shall have a minimum of 1800 square feet of finished area excluding any fourth level.
2.03.2 All Lots in Block 3: Except for multi-level homes, the principal dwelling shall have a minimum fully enclosed ground floor area devoted to living purposes exclusive of porches, terraces and garages of 1600 square feet for a one story dwelling, and a minimum of 1100 square feet on the ground floor of a two story dwelling. Multi-level homes shall have a minimum of 2000 square feet of finished area excluding any fourth level.
2.03.3 All Lots in Block 4 and 5: These Lots shall be limited to one story dwellings and garages only. The principal dwelling shall have a minimum fully enclosed ground floor area devoted to living purposes exclusive of porches, terraces and garages of 1600 square feet. The ACC shall have the discretion to withhold approval of proposed buildings which meet the foregoing criteria if the Committee determines in the exercise of its discretion that the elevations or design elements are otherwise not compatible with the surroundings and development of the Property.
2.04 Architectural Control Committee (ACC) Approval. No building, fence, out building, or other structure shall be erected, placed, or altered on any Lot, nor shall any building permit therefore be sought, until the proposed building plans, specifications, exterior color and finish, plot plan (showing the proposed location of such building or structure, drives and parking areas, fencing and landscaping plans and materials), and construction materials shall have been approved by the ACC. The ACC shall have the full discretion to approve and deny such plans so as to insure the best use and the most appropriate development and improvement of each building site, to protect the Owners of building sites against inappropriate use of surrounding building sites as will depreciate the value of the Property; to preserve, so far as is practicable, the natural beauty of the Property; to guard against the erection of poorly designed structures, and structures built of improper or unsuitable materials; to obtain a harmonious relationship of structures, color schemes, vegetation, fencing and overall design of the development; to insure the highest and best development of said Property; to encourage and secure the erection of attractive homes and other permitted structures thereon, with appropriate locations thereon of building sites; to prevent haphazard and inharmonious improvement of building sites; to secure and maintain proper setbacks from streets and in general to provide adequately for a high type and quality of improvements on said Property and thereby enhance the value of improvements on the Property. In addition to the other provisions of this Declaration, the ACC shall consider the following guidelines in reviewing the matters submitted to it:
2.04.1 Architectural Guidelines:
a. Materials and Color: Exterior colors will be approved only if the proposed color is in harmony with the other existing homes in the community or if the color is similar to the colors originally employed in the community. In general, only those areas on a structure that are painted may be repainted; only those areas that are stained may be re-stained; unpainted surfaces and unstained areas such as brick shall remain unpainted and unstained.
b. The ACC can approve alternatives if they meet the desired quality of design.
c. Refusal of approval of plans, location, or specifications may be based by the ACC upon any reasonable grounds, including purely aesthetic considerations, which in the sole and uncontrolled discretion of the ACC shall seem sufficient, reasonable, and not capricious.
2.04.2 Design parameters. The ACC shall evaluate each submittal based on the individual merits of the application and shall base its judgment of acceptable design upon the objectives and criteria stated elsewhere in this Declaration and the following additional parameters:
a. Validity of the Concept. The basic idea of the proposal must be sound and appropriate to its surroundings and must not detract from the aesthetic or property values of the Property.
b. Design Compatibility. The proposal must be compatible with the architectural characteristics of the Property buildings and grounds. Compatibility is defined as similarity in architectural style and quality of workmanship; and similarity in use of materials, color and construction details.
c. Protection of Neighbors. The proposal must contain reasonable provisions for such matters as surface water drainage; sound and sight buffers; the preservation of views, light and air; and those aspects of design not adequately covered by other regulations, which may have substantial effects on common areas.
d. Preservation of Health and Safety. The proposal must create no health hazard nor any dangerous or unsafe condition such as a weakening of the structural soundness of any buildings, a blocking of common area passageways, an overloading of electrical circuits, or other similar condition.
e. Timing. Properties which remain uncompleted for long periods of time are visually objectionable and can be a nuisance and safety hazard for neighbors and the community.
f. Compliance with City, County, State or Other Laws. It is the responsibility of the applicant to present evidence that the proposal shall not circumvent any city, state, county or national laws or regulations.
2.05 Drainage and Soil Conditions.
2.05.1 Soil Conditions. Many soils within the State of Colorado consist of both expansive soils and low-density soils which may adversely affect structures if the structure is not properly designed and maintained and appropriate drainage provided and maintained. The soils can consist of soils that swell, as well as soils that shrink. Soils may also contain substances producing radon gas.
2.05.2 Action by Owner. It is recommended that the Owner of each Lot obtain plans and specifications from a qualified engineer for the foundation of any structures, as well as recommendations of such engineer for the grading and other methods of control of water flow on and across the Lot in compliance with the grading and drainage plan for the Property approved by the City of Loveland. Each Owner is required to comply with such grading and drainage plan and to at all times take appropriate action to not impede or hinder waters flowing across the Lot in the manner intended by the applicable grading and drainage plans and recommendations for the Lot and the grading and drainage plan approved by the City of Loveland for the entire Property.
2.05.3. Declarant Not Liable. The Declarant shall not be liable for any loss or damage arising from or in any way connected with soil conditions on any Lot, including by way of example and not in limitation, radon gas, expansive or shrinking soils, subsurface water conditions or the flow or detention of waters on, across, through or under any lands in the Property.
2.05.04 Detention Area. Tract “A” is subject to a temporary easement for detention of storm waters, and contains a drainage detention area and related facilities. The Association shall be responsible for maintaining the detention area and facilities in unobstructed and good condition and shall not modify the detention area unless adequate provisions are made to deal with such drainage.
2.06. Antennas, Solar and Other Devices, Paved and Patio Areas, Retaining Walls.
No antennas, satellite dishes or other receiving/transmitting apparatus or equipment may be erected on the exterior of any structure or on the Lot itself, except that ‘mini-dish’ satellite receiving dishes measuring 1 meter or less in diameter may be installed if not higher than the eaves line for a single story house, or above the first story of a two-story house. Such dishes shall be inconspicuous when viewed from the public streets or common open space within the neighborhood, placed on deck railings, or located within the building envelope of the sides or rear of the house. Dishes shall not be located in the front of a house or on a freestanding pole or fences in the yard area of aLot. Any deviation from this policy must be approved by the Architectural Control Committee.” (Amended November 1998). Solar collection apparatus or equipment shall be designed to be incorporated into the actual roof lines of the structure and shall not be permitted where this objective cannot be met. All heating, ventilating, air conditioning, and other exterior mechanical equipment servicing any structure on a Lot shall be either incorporated into the enclosed portion of the structure or be screened in such fashion as is approved by the ACC. Hard surfaced private driveway and parking areas are required. Asphalt or concrete, or other paving patterns or materials approved by the ACC shall be used for such paving. Extensions, widening or rerouting of existing driveways, patios or sidewalks shall require the approval of the ACC prior to commencing any work. Any retaining walls shall require the approval of the ACC prior to commending any work. Retaining walls and other structures or landscaping which divert ground water or surface water onto adjoining properties or which otherwise substantially change the existing patterns will not be approved.
2.07 Setbacks. Buildings shall not be erected in the minimum setback areas provided in this section. Cornices, eaves and similar architectural feature may extend three feet (3’) into the required setbacks except that no cornice, eave or architectural feature shall be designed to extend over a Lot line or easement. For purposes of this Declaration, the ACC shall determine which Lot lines constitute the front, side and rear Lot lines or any Lot.
2.07.1 For all Lots with front entry garages, the setback minimum to the building closest to the front Lot line shall be twenty feet (20’) as measured from the back of the curb. Side entry garages shall have a thirteen and a half feet (13 1/2’) as a minimum, as measured from the back of the curb.
2.07.2 Side Yard Setbacks.
a. For all Lots where a side yard is adjacent to a street, the setback minimum to the building closest to the street shall be thirteen and a half feet (13 1/2’) as measured from the back of the curb.
b. For all other Lots where a side yard is adjacent to a street and a front entry garage will gain access from the street, the side yard setback minimum to the building closest to the street shall be twenty feet (20’) as measured from the back of the curb.
c. All other side yards may be zero (zero Lot line) provided that a minimum of ten feet (10’) is maintained between structures. If a zero Lot line structure is proposed, prior to the issuance of a building permit, the applicant shall be responsible for providing a separate secondary manhole for the Lot in conformance with the City of Loveland standards and for acquiring and recording with the Larimer County Clerk and Recorder an easement meeting the requirements of Section 3.04 for construction and maintenance on the adjacent affected Lot or Lots of no less in width than that required to meet the said ten foot (10’) minimum separation.
2.07.3 Rear Yard Setbacks. The minimum setback shall be ten feet (10’) as measured from the rear Lot line.
2.08 Landscaping. All landscaping and plantings must receive prior written approval from the ACC and shall comply with the following criteria:
2.08.1 Front Yard Landscaping.
a. Lots fronting on McKenzie Court are not required to have a tree in the front yard. All other Lots shall have a minimum of one 2 1/2” caliper tree in the front yard.
b. All trees adjacent to streets shall be planted fourteen feet (14’) to sixteen feet (16’) from the back of the curb.
c. the species of trees adjacent to streets to be planted on each Lot shall be derived from the City of Loveland Site Development Standards on file in the City of Loveland Planning Division.
d. Fifty percent (50%) of the area of the front yard of each Lot shall be landscaped with living plant materials, the predominant element which shall be sod of a grass or groundcover approved by the ACC.
e. That portion of the street right-of-way that lies between the Lot line and the back of the curb shall be landscaped in a manner comparable to the remainder of the front yard.
f. All front yard landscaping shall be installed within three (3) months of the start of the next planting season following the issuance of a Certificate of Occupancy by the City of Loveland for the dwelling on the Lot.
g. The City of Loveland Light and Power Department will be placing above ground electrical transformers nine inches (9”) from the back of the curb in various locations throughout the development. One transformer will serve approximately ten (10) Lots. Shrubs may be placed around the sides and rear of the transformer, but not in front.
h. The use of fertilizers and pesticides will be minimized around the homes on McKenzie Drive to minimize the impact to the adjacent wetlands.
2.08.2 Side Yard Landscaping.
a. All Lots with side yards that front on a street shall have a minimum of one 2 1/2” caliper tree in the side yard.
b. All trees adjacent to streets shall be planted fourteen feet (14’) to sixteen feet (16’) from the back of the curb.
c. The species of trees adjacent to streets to be planted on each Lot shall be derived from the City of Loveland Site Development on file in the City of Loveland Planning Department.
d. Fifty percent (50%) of the area of each side yard which is adjacent to a street shall be landscaped with living plant materials, the predominant element of which shall be sod of a grass or groundcover approved by the ACC.
e. For side yards that are adjacent to a street, that portion of the street right-of-way that lies between the property line and the back of the curb shall be landscaped in a manner comparable to the remainder of the yard, the predominant element of which shall be sod of a grass or groundcover approved by the ACC.
f. All side yard landscaping that is adjacent to a street shall be installed within three (3) months of the start of the next planting season following the issuance of a Certificate of Occupancy by the City of Loveland for the dwelling on the Lot.
2.08.3 Common Element Areas. The predominant groundcover in all Common open space areas shall be sod. Deciduous trees, evergreen trees and shrubs shall be planted to soften the edges of the open space. Trees and shrubs are not to be rigidly spaced, but shall be placed in naturalistic groupings within the open space.
2.08.4 Minimum Plant Sizes at Time of Planting. Except as may otherwise be required above for trees adjacent to streets, the following minimum plant sizes for plantings on the Property shall be met:
a. Deciduous Trees: 2 1/2” caliper
b. Aspen Clumps: 10’ - 12’ high
c. Evergreen Trees: 1 1/2” caliper
d. Flowering Trees: 1 1/2” caliper
e. Shrubs: 5 gallon containers
2.08.5 Removal and Planting of Trees. No tree or trees, whether now growing or hereafter grown upon any part of the subject property shall be cut down without prior written approval of the ACC, provided, however, that this restriction shall not apply unless such tree is more than two (2) inches in diameter as measured one (1) foot above grade, and provided further that this restriction shall not be construed to limit in any way reasonable trimming of any trees upon property. Each Owner of a Lot shall plant and maintain those trees required and described above. In the event the Owner fails to plant and maintain such trees, the Declarant or the Association may do so and recover the costs thereof from the Owner.
2.09 Maintenance of Landscaping.
2.09.1 Common Elements. The responsibility for irrigation and maintenance of all landscaping and appurtenances within the Common Elements, including the frontage along South Taft Avenue shall be that of the Association, as further described herein and in Article VII.
2.09.2 Street Rights-of-Way.
a. Until the streets are fully developed and accepted for maintenance by the City of Loveland, the Owner of each adjacent Lot shall be responsible for ongoing maintenance of the full width and length of all platted street rights-of-way.
b. When streets have been installed and accepted by the City of Loveland, the maintenance of the portion of the right-of-way adjacent to such Lot shall become the responsibility of the Lot Owner.
c. Where Common Elements adjoin a street, the Association shall be responsible for ongoing maintenance of that portion of the street right-of-way that lies between the back of the curb and the Common Elements.
d. Along South Taft Avenue, the Association shall be responsible for ongoing maintenance of that portion of the South Taft Avenue right-of-way that lies between the Property and the edge of the street. The edge of the street is defined as the edge of the gravel shoulder, back of the curb or back of the walk, whichever applies.
2.09.3 Undeveloped Ground. The Owner(s) of any undeveloped ground within the Property shall be responsible for controlling and cutting weeds to maintain a neat and orderly appearance at all times.
2.10 Trash Storage and Removal. Each Owner of a Lot shall provide a fully enclosed area for containment of trash, garbage, bottles, leaves, or other refuse. Each Owner of a Lot must provide for regular removal of garbage, and each Lot at all times shall be kept in a clean, attractive, and wholesome condition and weeds shall be kept mowed. No trash, litter, junk, boxes, containers, bottles, cans, furniture, implements, machinery, lumber, or other building materials shall be permitted to remain exposed upon any Lot so they are visible from any neighboring Lot or the street, except as reasonably necessary during the period of construction. In the event any structure is destroyed either wholly or partially by fire or other casualty, said structure shall be promptly rebuilt or remodeled to conform to this Declaration or all debris and remaining portions of the structure shall be promptly removed from the Property.
2.11 Repairs. Any repairs to or reconstruction of dwellings, out buildings, fences, etc., whether due to wear and tear or natural causes (such as wind, hail, fire, flood, etc.), shall be subject to and in accordance with the covenants herein. Removal of damaged structures, or the repair and reconstruction of such damaged structures, shall be promptly undertaken and completed no later than one (1) year from the date of damage.
2.12 Nuisance. No Lot shall be used in such a manner as to obstruct or interfere with the enjoyment of Owners of other Lots or annoy them by uncontrolled weeds, unreasonable noises, lights, odors, or otherwise, nor shall any nuisance or illegal activity be committed or permitted to occur on any Lot. No exterior horn, whistle, bell, or other sound devices except security devices used exclusively to protect the security of the Property and the Owners or occupants thereof shall be placed or used on any part of the Property.
2.13 Animals. The Board may from time to time adopt rules and regulations as it deems appropriate regarding the keeping of household pets on any part of the Property. The Board is not required to allow the keeping of any animals and except as may be specifically permitted by such rules and regulations for household pets, no pets, livestock, poultry, swine or other animals may be kept on any part of the Property.
2.14 Litter and Damage. Each Owner shall be responsible for cleaning up litter and repairing damage caused by pets or people from that Owner’s Lot and failure to do so shall subject the Owner to assessments by the Association for the cleanup expenses incurred and for any damage caused and also to assessment of a reasonable penalty if so provided by the Rules and Regulations established from time to time by the Board.
2.15 Oil and Mining Operations. No oil or natural gas drilling, development operations, or refining, and no quarrying or mining operations of any kind shall be permitted upon or in any Lot or the Common Elements. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, maintained, or permitted upon any Lot or the Common Elements.
2.16 Declarant’s Reservation of Use for Offices and Facilities during Sales Period. Not withstanding any provisions herein contained to the contrary, it shall be expressly permissible for the Declarant and its builders, agents, employees and assigns to maintain on the Property during the period of construction and sale of the Lots, such signs and such facilities as in the sole opinion of Declarant may be reasonably required, convenient, or incidental to the construction, management and sale of the Lots, including but not limited to, a business office, storage areas, construction yards, model homes, and sales office (“facilities”). This reservation of Special Declarant Rights shall terminate at the earlier of ten (10) years from the date of the first conveyance of a Lot to a Purchaser, or upon conveyance to a Purchaser of the last Lot in the Property which has not previously been conveyed to a Purchaser. The initial sales office facility shall be located at Lot 1, Block 1, and additional facilities may be created and maintained by Declarant elsewhere on the Property. The Declarant shall not maintain at any time more than ten (10) such facilities, all of which shall be located on Lots owned by Declarant or upon Tract “A.” Any such facility shall not cover an area in excess of three thousand (3,000) square feet. All such facilities may be relocated from time to time as Declarant deems appropriate.
2.17 Signs. No sign of any kind shall be displayed to the public view on any Lot except:
i) one sign of not more than five (5) square feet advertising a Lot previously conveyed to a Purchaser for sale or rent,
ii) signs used by Declarant or builder to advertise the Property and any Lots on the Property during the construction and sales period, and
iii) such other signs as the Board may, from time to time approve. Declarant reserves the right to place signs on the Common Elements advertising the Property and Lots.
2.18 Fences. No fence, or shrubs, walls, hedges or plantings having the effect or function of a fence (herein collectively referred to as “fences”) shall be erected without having first obtained approval by the ACC. All fences adjacent to roads shall be in compliance with any applicable site line requirements established by the governmental authority having jurisdiction. All fences shall be maintained in a clean, neat, and orderly condition at all times. The application of any paint, finish, color or stain to any fence proposed to be constructed or any existing fence shall receive prior written approval from the ACC. All fences or screens constructed on a Lot shall be stained, painted and/or bricked as appropriate to complement the color and material of the dwelling unit.
2.18.1 Adjacent to patios, solid fencing with a maximum height of six feet (6’) shall be permitted. Such fencing shall conform to the style of the home and shall not be installed unless first approved by the ACC prior to installation. The fence shall not enclose an area larger than six hundred square feet (600’) unless otherwise approved by the ACC.
2.18.2 All fencing shall be set back from the street the same distance as the actual structure itself. For example, if a structure on a corner Lot is set back thirty feet (30’) from one street and twenty-five feet (25’) from the other, the minimum setback for the fences shall also be thirty feet (30’) and twenty-five feet (25’), respectively.
2.18.3 The ACC may in its discretion allow fencing for dog pens or runs if it finds the proposed material, location, and size to be compatible with the character of the development of the Property.
2.18.4 With the prior approval of the ACC, fences may be installed on the Lot lines of Lots 4 – 9, inclusive of Block 2, Lots 6, 7, 17 and 18 of Block 3, and Lot 4 of Block 5. No other Lot shall be permitted to have fencing along the Lot lines.
2.19 Vehicles, Parking and Motorized Equipment. There shall be no on-street parking anywhere on the Property except in the parking bays designed and provided for that purpose. Each Lot shall provide no less than four (4) off-street parking spaces on the Lot, at least two of which shall be within a garage and the balance in a driveway. No work of automobile repair or maintenance shall be performed except that performed by an Owner on his own vehicles within the confines of an Owner’s garage. No abandoned, inoperable, or junk vehicle may be stored on any part of the Property. Except for equipment used in construction of improvements on the Property, all motorized equipment including power equipment, tractors, lawn equipment, snow blowers and any other motorized equipment used on any Lot must be properly equipped with mufflers so as to reduce to the greatest degree practicable the noise of operation. The hours of operation of any motorized equipment shall be confined to the period of time commencing at 7:00 a.m. and ending at 7:00 p.m., unless the Board establishes different hours hereafter. Except for equipment used in construction of improvements on the Property, no boat, trailer, motor home, van, recreational vehicle, farm or construction equipment, bus, large commercial-type vehicle (including, but not limited to, any truck with a capacity of more than one tone, dump truck, cement mixer truck, oil or gas truck, delivery truck, backhoe, bulldozer, or semi-tractor or trailer) shall be parked, stored or kept anywhere on the Property. Notwithstanding the foregoing:
i) visitors may park non-conforming recreational type vehicles, for a period not to exceed seventy-two (72) hours of aggregate duration over any three (3) consecutive calendar weeks, provided that no parked vehicle shall at any time be parked so as to occupy more than one (1) parking space, or extend into a fire lane or the traveled portion of any road; and
ii) non-conforming vehicles may be kept on a Lot by the Owner in a completely enclosed structure if the ACC has approved the construction of such a structure for that purpose. The Board shall provide for signs giving notice of the prohibition of on-street parking, which signs shall include the words “Fire Lane No Parking,” and such other signs regarding parking as the Board from time to time deems appropriate. The Board shall have the power to undertake all legal means to enforce the parking prohibitions, and to assess against the Owner of any Lot the costs of enforcement for any violation occurring on the Lot or by the occupants or visitors of that Lot, including reasonable attorney fees and costs and other charges, penalties, costs or assessments which may elsewhere in this Declaration be provided for violation of this Declaration.
2.20 Fires and Firearms. There shall be no exterior fires permitted on the Property except barbecue fires contained within elements or receptacles specifically designed for such purposes, or those fires for which a permit has been granted by governmental authority. No Owner shall permit any conditions on his Lot which create a fire hazard or are in violation of fire prevention regulations. No firearms shall be discharged within the Property.
2.21 Subdivision of Lots, Relocation of Boundaries. No Lot shall hereafter be subdivided. Relocation of boundaries between Lots may be made in the manner provided by the Colorado Common Interest Ownership Act.
2.22 Sidewalks. No sidewalks are required, except along the west side or Amber Drive and also a four (4) foot wide Pedestrian Access sidewalk which shall be installed along the south side and a portion of the east side of Lot 10, Block 3 and along the north side of Lot 4, Block 3 for pedestrian access from McKenzie Court to Amber Drive. It shall be the responsibility of the Lot Owners upon whose Lots the Pedestrian Access is located to maintain the walks in a clean and orderly condition and to remove snow and ice in a timely manner. It shall be the responsibility of the Association to carry out and pay for any repair or replacement of the Pedestrian Access sidewalk. The responsibility for maintenance, repair and replacement of the sidewalk on Amber Drive shall be that of the Lot Owners upon whose Lots the sidewalk is located.
2.23 Exterior Maintenance. In the event an Owner of any Lot shall fail to maintain the premises and the improvements situated thereon in a manner satisfactory to the Board of Directors of the Association, after approval by two-thirds (2/3) vote of the Board of Directors, the Board shall have the right, through its agents and employees, to enter upon said Lot and to repair, maintain, and restore the Lot and the exterior of the buildings and any other improvements erected thereon. The cost of such exterior maintenance shall be added to and become a part of the assessment to which such Lot is subject.
ARTICLE III
EASEMENTS
3.01 Utility Easements. Easements for the installation and maintenance of public utilities over and across the Lots and Common Elements shall be those shown upon the Plat and such other easements as may be established pursuant to the provisions of this Declaration or as may hereafter be granted over and across the Common Elements by the Board of Directors of the Association. Within these easements, unless approved by the Board, no structure, planting, or other materials shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities, or which may change the direction of flow, or obstruct or retard the flow of water in and through the easements. The easement area of each Lot and all improvements in it shall be maintained continuously by the Owner of the Lot. The Association shall have the right to enter upon such easements from time to time as the Board may determine necessary or appropriate to construct, maintain or repair any ditches, pipes, wiring, or other Elements which benefit the Association. The Association shall not be responsible for any damage to any property or landscaping of any Lot Owner, including any damage occurring outside the easement area from equipment or operations, if such damages are reasonably unavoidable. If any such work is done by the Association as a result of failure of a Lot Owner to comply with these covenants or to properly maintain the easement area, the cost shall be assessed against such Owner and shall be recoverable by the Association in the same manner and fashion as other assessments with all the remedies and rights for recovery and collection as provided in this Declaration.
3.02 Pedestrian Access. A Pedestrian Access easement exists along portions of Lots 10 and 4 in Block 3.13
3.03 Declarant’s Easements. Anything to the contrary herein notwithstanding, the Declarant hereby reserves an easement and right-of-way over all Common Elements and all Lots not conveyed for the sole use of constructing improvements, utilities, and other matters including the right to erect temporary buildings to store any and all materials. Declarant, for itself and its successors and assigns, further reserves the right to use any completed structure for the purpose of sales office or model home for demonstration purposes; provided however, the right to the use of completed structures by the Declarant shall not extend to any recreational facilities which may be erected. This reservation of Special Declarant Rights shall terminate as provided in Section 2.16.
3.04 Special Easements. Due to the possibility of zero side yard setbacks, and the anticipated style of improvements to be placed on certain Lots, an improvement may be located on or so near its property line so as to make entry upon an adjoining Lot or Lots a necessity incident to the construction and maintenance of such improvement. The Owner proposing such improvements shall be responsible for acquiring from the adjacent affected Lot(s) Owner(s) the easement required by Section 2.07.2 above. Unless otherwise approved by the ACC, such easement or easements:
i) shall be over and across the affected Lot or Lots immediately adjoining the Lot upon which such improvement is so located; and,
ii) shall extend the full depth of the adjoining Lot or Lots; and,
iii) shall extend into so much of the adjoining Lot or Lots as is necessary to provide the minimum structure separation set forth in 2.07.2 above.
Construction of any structure shall be prohibited within these easements unless first approved in writing by the ACC. Anything to the contrary in this Declaration notwithstanding, if any portion of a roof overhang, cornice, eave or other feature of an improvement as initially constructed by the Declarant, its successors, assigns or its agents encroaches upon an adjoining Lot or Lots, a valid easement for such encroachment and the construction, maintenance, repair, replacement, and reconstruction shall and does exist. For title and other purposes, such easements shall not be considered or deemed to be encumbrances upon such adjoining Lot.
3.05 Drainage Detention Easement. There shall be a non-exclusive temporary easement in favor of the Association for a drainage detention area and related facilities on Tract “A.” Such easement is for the purpose of maintaining, replacing and repairing the detention area and related facilities. At such time as downstream drainage improvements have been completed, the Association shall have the responsibility to connect the drainage facilities to such downstream improvements, and the easement for use of the property for a detention area shall thereupon terminate. The location of any permanent drainage facilities on Tract “A” shall be at a place agreed upon by the Declarant, and in such location as will allow the use of Tract “A” as a residential dwelling lot. The Declarant reserves the right to usage of Tract “A” which is not unreasonably in interference with the temporary easement of the Association. The Declarant reserves the right to at any time convey to the Association Tract “A” as an addition to the Common Elements. For so long as the Association has an easement for purposes of the detention area, it shall be the responsibility of the Association to maintain the surface of Tract “A” in a clean and orderly condition, including the control of weeds and the maintenance of its appearance. During such time s the Association has an easement for the maintenance of the detention area, and any temporary or permanent drainage facilities on Tract “A,” the Association shall indemnify and defend and hold harmless the Declarant, its successors and assigns, from any claim, action, judgment, loss or other claim of whatsoever nature arising from or in connection with the actions or omissions of the Association or the operation, maintenance or condition of the detention area and drainage facilities. If requested by Declarant, the Association shall name the Declarant as an additional insured on any insurance policies to the extent of coverage for liabilities related to such detention area, facilities and activities of the Association.
ARTICLE IV
PROPERTY RIGHTS IN THE COMMON ELEMENTS
4.01 Owner Easement of Enjoyment. Subject to the provisions of Section 4.04 below, every Owner shall have a right and easement of enjoyment in and to the Common Elements and such easement shall be appurtenant to and shall pass with the title to the Lot.
4.02 Title to the Common Elements. The Declarant hereby covenants for itself, its successors and assigns, that it will convey to the Association fee simple title to the common Elements, free and clear of all encumbrances and liens within the time required by an applicable law, and in no event no later than sixty (60) days after the last Lot not previously conveyed to a Purchaser is conveyed by the Declarant, its successors or assigns to a Purchaser.
4.03 Assignment of Use by Owners. Any Owner may assign, in accordance with the Bylaws and Rules and Regulations from time to time adopted by the Association, his right of enjoyment to the Common Elements and facilities to the members of his family, his tenants, guests or purchasers under installment land contracts who reside on the Property.
4.04 Extent of Owners’ Easements. The rights and easements of enjoyment created hereby shall be subject to the following:
4.04.1 The Association shall have the right to limit the number of guests of Owners utilizing the Common Elements provided such limitation is the same for all Owners.
4.04.2 The Association shall have the right, in accordance with its Articles and Bylaws and the Colorado Common Interest Ownership Act, to borrow money for the purpose of improving the Common elements and in aid thereof to mortgage said Common Elements. In the event of a default upon any such mortgage the lender’s rights hereunder shall be limited to a right, after taking possession of such properties, to charge admission and other fees as a condition to continued enjoyment by the Owners (all such proceeds received to be applied to the indebtedness) and, if necessary, to open the enjoyment of such properties to a wider public until the mortgage debt is satisfied whereupon the possession of such properties shall be returned to the Association and all rights of the Owners hereunder shall be fully restored.
4.04.3 The Association shall have the right to take such steps as are reasonably necessary to protect the above-described properties against foreclosure.
4.04.4 The Association shall have the right, as provided in its Articles and Bylaws, to suspend the enjoyment rights of any Owner for any period during which any assessment remains unpaid, and for any period not to exceed thirty (30) days for any infraction of its published rules and regulations.
4.04.5 The Association shall have the right, as provided in its Articles and Bylaws, to charge reasonable admission and other fees for the use of the Common Elements by Owners and non-owners.
4.04.6 The Association shall have the right to dedicate or transfer all or any part of the Common Elements to any public agency, authority, or utility or other entity for such purposes and subject to such conditions as may be established by the Association. No such dedication or transfer shall be effective unless the requirements of consent by Owners as set forth in the Colorado Common Interest Ownership Act have been met.
ARTICLE V
RESERVATION OF DEVELOPMENT RIGHTS TO DECLARANT
5.01 Development Rights. The Declarant reserves the right to add additional unspecified real estate to be subject to this Declaration, and to create no more than ten (10) additional Lots and to create new or add to Common Elements, and to subdivide Lots, and to convert Lots into Common Elements, and to withdraw real estate from this Declaration. The Declarant hereby reserves to itself all such rights which may sometimes be referred to in this Declaration as “Development Right.” The Declarant also reserves the right to create an additional Lot for dwelling purposes by conversion of Tract “A” to such purposes. The Declarant reserves such right for a period which will terminate three (3) years following the date that the Association carries out its obligation to connect drainage facilities to downstream improvements. The Declarant further reserves the right to convey said Tract “A” to the Association as an additional Common Element, and the Declarant may exercise that right at any time, either before or after the expiration of the period reserved to Declarant for conversion of the land to usage as a residential dwelling lot. Development Rights may be exercised by the Declarant at different times, an for all or any portion of, different parcels and in such order as Declarant deems appropriate. Exercise of a Development Right in all or any portion of a parcel shall not require exercise of Develpment Rights in the balance of such parcel, or any other parcel.
5.02 Special Declarant Rights. The Declarant reserves to itself certain rights (herein occasionally referred to as “Special Declarant Rights”) to complete improvements indicated on the Plat; to exercise any development rights; to maintain sales offices, management offices, signs advertising the Property, and models; to establish, exercise and use easements through the Common Elements for the purpose of making improvements within the Property or within real estate which may be added to the Property; to appoint or remove the members of the Board and any Officer of the Association and the members of the ACC; and to make such amendments to this Declaration as appropriate in connection with the Development Rights and Special Declarant Rights reserved by Declarant. Certain Special Declarant Rights may be elsewhere referred to and reserved in this Declaration, and to the extent not so reserved elsewhere, the Declarant hereby reserves to itself all such Special Declarant Rights.
5.03 Period of Reservation. The periods of time for which Declarant reserves Development Rights and Special Declarant Rights and Declarant Control of the Association are as elsewhere set forth in this Declaration, and to the extent not otherwise so set forth such rights shall be extinguished at the earlier of ten (10) years from the first conveyance of a Lot to a Purchaser, or the time of conveyance to a Purchaser of the last Lot in the Property which has not previously been conveyed to a Purchaser.
5.04 Transfer of Rights. The Declarant reserves the right ot transfer all or any real property of the Declarant in the Property, and all or any part of the Development Rights and Special Declarant Rights reserved to Declarant, to one or more successors or assigns (“Successor”) who re not a Purchaser, and to the extent of such transfer, such successor shall have all the rights and powers reserved to the Declarant in this Declaration as have been so transferred by the Declarant to such successor. Such successor shall also have the right to make such transfers to subsequent successors who are not Purchasers.
ARTICLE VI
OWNERS ASSOCIATION
6.01 Formation of the Association. The Declarant has formed, or will form after the recording of this Declaration and before the date that a Lot is first conveyed to a Purchaser, a Colorado non-profit corporation (The Association”). Each Owner of each Lot within the Property shall be a member of the Association. Status as an Owner of a Lot is the sole qualification for membership, such membership being deemed an incident of Ownership of a Lot. Individuals who jointly own a Lot shall be deemed to constitute a single Owner of a Lot. An Owner’s membership in the Association shall commence as of the date that fee title to a Lot is conveyed to the Owner and shall terminate on the date of termination of Ownership of a Lot.
6.02 Classes of Membership and Voting Rights. The Association shall have one (1) class of voting membership composed of the Owners of Lots. Except as elsewhere provided herein regarding certain actions to be taken or approved by Owners other than the Declarant, each Owner shall be entitled to cast one (1) vote for each Lot owned. In the event a Lot is owned by two (2) or more persons, whether by joint tenancy, tenancy in common, or otherwise, the vote for such Lot shall be exercised as the Owners thereof shall determine but the vote attributable to such Lot shall be cast by only one (1) of the Owners of such Lot who shall be designated by the several Owners of such Lot in writing prior to or at the time the vote is cast. In the absence of such designation by such multiple Owners the vote for such Lot may be cast as provided by the Colorado Common Interest Ownership Act. No vote may be cast or counted for any Lot for which assessments, fees, dues, or other monies are in default of payment at the time votes are counted.
6.03 Board of Directors. The affairs of the Association shall be conducted by a board of Directors (the “Board”). The powers and duties of the Board shall include, but not be limited to the following:
A. To enforce all of the applicable provisions of this Declaration.
B. To maintain the Common Elements.
C. To contract for and pay for the cost of providing the functions of the Association out of funds collected by the Board.
D. To levy and collect the costs of maintenance as provided in this Declaration and to make or authorize the expenditures therefrom.
E. To receive and process complaints from Owners with respect to any provisions of this Declaration.
F. To adopt such rules and regulations as the Board from time to time may deem necessary or appropriate to carry out the provisions of this Declaration.
G. To render such discretionary decisions as are vested in the Board pursuant to this Declaration.
H. To impose charges for late payment of assessments, recover costs of enforcement including reasonable attorney fees and other legal costs for collection of assessments and other actions to enforce the power of the Association, regardless of whether or not suit was initiated, and, after notice and an opportunity to be heard, levy reasonable fines for violations of the Declaration, Bylaws, and Rules and Regulations of the Association, and to establish the rate of interest to be assessed for all sums which may be payable to the Association.
I. To obtain and keep in force such insurance as the Board may from time to time deem appropriate including, but not limited to, casualty and liability, worker’s compensation, errors and omissions coverage for officers, directors, employees, agents and members of the Association, insurance for indemnification of officers, directors and members of the Association acting on behalf of and for the benefit of the Association, and such other insurance that the Board may deem appropriate.
J. Subject to the other provisions of this Declaration, to exercise al powers and rights granted to the Association by the provisions of the Colorado Common Interest Ownership Act, as from time to time amended.
K. To take such other action or to incur such other obligations whether or not herein expressly specified as shall be reasonably necessary to perform the Association’s obligations hereunder.
6.04 Number and Election of Board Members, Declarant Control. The initial Board of Directors shall consist of three (3) persons appointed by the Declarant, each of whom shall serve at the pleasure of the Declarant or until his or her successor(s) is appointed by the Declarant.
6.04.1 The Declarant shall, for the period of time hereafter provided, retain the right to appoint and remove the members of the Board of Directors and the officers of the Association and the members of the Architectural Control Committee (“Declarant Control”); provided that:
a. Within sixty (60) days after conveyance to Purchasers of twenty-five percent (25%) of the Lots by Declarant, the Board of Directors shall be increased to four (4) members by the addition of one member to be elected by Owners other than Declarant, and thereafter three (3) Board members shall be appointed by the Declarant and one (1) Board member shall be elected annually by the Owners other than Declarant; and
b. Within sixty (60) days after conveyance of fifty percent (50%) of the Lots by Declarant, the Board of Directors shall be increased to six (6) members by the addition of one (1) member appointed by the Declarant and one (1) member to be elected by Owners other than the Declarant, and thereafter four (4) Board members shall be appointed by the Declarant and two (2) Board members shall be elected by Owners other than the Declarant.
6.04.2 The period of Declarant Control with respect to the Board and Officers of the Association shall terminate ten (10) years (until 2005) from the date of the first conveyance of a Lot to a Purchaser, or the occurrence of an event requiring termination under the Colorado Common Interest Ownership Act. Declarant may at any time voluntarily surrender the right to appoint and remove Officers and Board members, and in such event the Declarant may require for the duration of Declarant control that specified actions of the Association and the Board, as described in a recorded instrument executed by Declarant, be approved by Declarant before they become effective. Notwithstanding the foregoing, the period of Declarant Control to solely appoint the members of the ACC shall continue until the conveyance to a Purchaser of the last Lot in the Property not previously conveyed to a Purchaser, unless the provisions of the Colorado Common Interest Ownership Act otherwise require earlier termination.
6.04.3 Upon termination of the period of Declarant Control with respect to the Board or Officers of the Association, the Owners shall elect a Board of Directors of at least three (3) members, at least a majority of whom must be Owners other than Declarant. The Board members so elected shall elect the Officers of the Association. The Board members and Officers, unless otherwise required by the Colorado Common Interest Ownership Act shall take office upon election. Upon termination of the period of Declarant Control with respect tot he ACC, the Board shall establish the number of members of such Committee and appoint such members.
6.04.4 For purposes of determining the percentage of conveyance of Lots as it affects the Declarant’s rights of control to appoint and remove the members of the Board of Directors and the Officers of the Association, a conveyance of a Lot shall only be counted if such conveyance is to a Purchaser who has purchased a Lot with the intent to reside thereat, and no transfer by Declarant shall be deemed as a conveyance for such purposes if the transferee is not such a Purchaser, or if such transferee is a Dealer or is a person who intends to dispose of or participate in the disposal to Purchasers of Lots owned by the Declarant or a successor to the Declarant.
6.05 Meetings of the Association and Officers. Meetings of the Association shall be held at least once each year. Special meetings of the Association may be called by the President, by a majority of the Board, or by Owners having twenty percent (20%) of the votes in the Association. Not less than ten (10) nor more than fifty (50) days in advance of any meeting, the Secretary or other Officer specified in the Bylaws shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address of each Lot or to any other mailing address designated in writing by the Lot Owner. The notice of any meeting shall state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment tot he Declaration or Bylaws, any budget changes, and any proposal to remove an Officer or a member of the Board or the ACC. The number and type of officers, and the provisions for regular and special meetings of the Association not inconsistent with the foregoing shall be as provided from time to time by the Bylaws and the Articles of Incorporation of the Association.
6.06 Quorum. Unless he Bylaws provide otherwise, a quorum is deemed present throughout any meeting of the Association if persons entitled to cast twenty percent (20%) of the votes which may be cast for election of the Board are present, in person or by proxy, at the beginning of the meeting. Unless the Bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the Board if persons entitled to cast fifty percent (50%) of the votes on that Board are present at the beginning of the meeting.
6.07 Coordination with Bylaws and Rules and Regulations. Except as may be otherwise provided herein for action of the Board regarding interest upon unpaid assessments, the provisions of this Declaration provide the minimum substantive terms for the enforcement of this Declaration by the Board and the ACC. Further and additional provisions for the operation of the Board and the ACC may in the future be set forth by the Bylaws of the Association, and by appropriate resolutions or rules and regulations adopted by the Board or the ACC which supplement and further the intent and purposes of this Declaration. In the event any conflict occurs between the provisions of this Declaration and such Bylaws or resolutions, then this Declaration shall control and to the extent possible, the conflicting Bylaws, resolutions or rules and regulations shall be construed to be effective where it promotes the interest of the provisions of this Declaration and invalid where in derogation of these Declarations.
6.08 Transfer. The membership held by any Owner shall not be transferred, pledged or alienated in any way, except upon the sale of the Owner’s Lot, and then only to the purchaser of such Lot. A prohibited transfer is void and will not be reflected upon the books and records of the Association.
6.09 Delegation of Use. The Board may from time to time establish rules and regulations regarding the delegation by an Owner of rights of use and enjoyment of the Common elements to such Owner’s tenants or purchasers.
6.10 Notices. Notice of matters affecting the Property may be given to Owners by the Association, or by other Owners, by personal delivery or by mailing with postage prepaid to the mailing address of each Lot, or to any other mailing address designated by the Owner in writing.
ARTICLE VII
MAINTENANCE, BUDGET, ASSESSMENTS
7.01 Maintenance of Common elements. The Association shall be responsible for the maintenance of the Common Elements until and unless such maintenance obligation is assumed by the City of Loveland, Colorado, or by any other governmental or quasi-governmental body. The Association shall also be responsible for the repair and replacement of the Pedestrian Access sidewalk.
7.02 Failure of the Association to Maintain Common Elements. In the event the Association shall fail to maintain the Common Elements in a reasonable order and condition the City of Loveland (“City”) may serve written notice upon the Association, or upon the Owners, setting forth the manner in which the Association has failed to maintain the Common Elements in a reasonable condition, and said notice shall include a demand that such deficiencies of maintenance be cured within thirty (30) days thereof, and shall state the date and place of a hearing thereon, which shall be held within fourteen (14) days of the notice. At such hearing, the City may modify the terms of its original notice as to the deficiencies, and may give an extension of time within which they shall be cured. If the deficiencies set forth in the original notice or in the modifications thereof are not cured within said thirty (30) days, or any extension thereof, the City, in order to preserve the taxable values of the Property and to prevent the Common Elements from becoming a public nuisance and public liability, may undertake to maintain the same for a period of one (1) year. Before the expiration of said year, the City, upon its initiative or upon the written request of the Association, shall call a public hearing upon notice to the Association and to the Owners, to be held by the City Council of the City of Loveland, at which hearing such Association, or the Owners, shall show cause why such maintenance by the City shall not, at the election of the City, continue for a succeeding year. If the City Council of the City of Loveland shall determine that the Association is ready and able to maintain the Common Elements in a reasonable condition, the City shall cease to maintain the Common Elements at the end of said year. If the City Council of the City of Loveland shall determine that the Association is not ready and able to maintain the Common Elements in a reasonable condition, the City may, in its discretion, continue to maintain said Common Elements during the next succeeding year subject to a similar hearing and determination in each year thereafter. The cost of such maintenance by the City shall be allocated to each Lot in an equal amount, and any unpaid assessments shall become a tax lien upon the Lot owned by a defaulting Owner. The City shall file a notice of such lien in the Office of the County Clerk and Recorder upon the Property affected by such lien within the subdivision, and shall certify such unpaid assessments to the County Treasurer for collection, enforcement, and remittance in the manner provided by law for the collection, enforcement, and remittance of general Property taxes.
7.03 Allocation of Common Expenses to Lots. The expenses of functions imposed on the Association pursuant to this Declaration, together with the expenses of administration and operation of the Association and its Boards and Committees (including any appropriate indemnity to members thereof), and such other items of expense as contained in the budgets adopted by the Association, shall be allocated equally among the Lots, with each Lot to bear an equal percentage of the expenses of the Association, so that the sum of the percentages allocated to all Lots, subject to minor variations for rounding, shall equal one hundred percent (100%). In the event of withdrawal of any Lot(s), or the addition of any Lot(s), assessments will be re-allocated to comply with the foregoing provisions for equal assessment, commending on a date fixed by the Board in its discretion. Each Owner, by the acceptance of a conveyance of a Lot, shall be personally obligated to pay such percentage share of such expenses. An Owner shall be responsible for payment of the full share of any assessments for a Lot whether or not the Lot has improvements.
7.04 Establishment of Common Expenses Budget. The Board will, not less than annually, establish a proposed budget and shall submit each such proposed budget to the members of the Association for ratification. Notice of such prepared budget, and meetings of Owners for ratification shall be in accordance with the provisions of the Colorado Common Ownership Interest Act. The amount of each maintenance budget shall be assessed equally against each Lot and shall be payable in monthly, quarterly, annually or such other periodic installments as adopted from time to time by the Board. Should the Association fail to ratify a budget prior to the commencement of the proposed budget period, the periodic budget last ratified shall be continued until such time as the Owners ratify a subsequent budget proposed by the Board. Without in any way limiting the nature and type of expenses upon which the budget may be based, the budget may include anticipated expenses for reasonable contingency reserve and working capital and sinking funds, legal and other professional expenses, for casualty and liability insurance for the Common Elements, and for errors and omission or other insurance protection designed to provide defense and insurance coverage to the Board members, Officers, agents and employees of the Association in connection with any matters arising from Association business and the performance by such persons of their duties to the Association or related to their status as Board members, Officers, employees or agents of the Association.
7.05 Special Assessments, Acceleration of Payments on Default. In addition to the Common Expenses to be assessed against each Lot, the Board may, from time to time, levy and collect special assessments to remedy any default by an Owner of the Owner’s obligations under this Declaration. Such costs and expenses for an Owner’s default may be assessed against such Owner without establishment of any supplemental budget, and may be collected d from
such Owner in the same manner as provided in paragraph 7.07 and
paragraph 7.08 below. Any charges imposed for late payment, attorney
fees and costs, and fines shall be deemed to be assessments against the
Owner’s Lot and recoverable and subject to the same rights and remedies
available to the Association for all other assessments. In addition to
all other penalties, fines, costs, fees, expenses and charges which may
be assessed, if an Owner is in default of payment of assessments as due,
the Officers of the Association may elect to accelerate and call due
and payable in full all installment payments of assessments to be paid
by such defaulting Owner, for the budget period for which the default
exists.f
7.06 Accounting and Surplus Funds. All funds collected by the Association shall be promptly deposited into a commercial bank account and/or a savings and loan account in an institution to be selected by the Board. No later than ninety (90) days from the end of each calendar year the Board shall distribute to each Owner an operating statement reflecting the income and expenditures of the Association for the previous calendar year. The Board shall maintain complete and accurate books and records of its income and expenses in accordance with generally accepted accounting principles consistently applied and shall file such tax returns and other reports as shall be required by any governmental entity. The books and records shall be kept at the office of the Association and shall be open for inspection by any Owner or by the holder of any first deed of trust or mortgage of record at any time during normal business hours following reasonable advance notice of the request for inspection. If surplus funds remain after payment of the Association’s expenses and prepayment of or provision for sinking funds and reserves, the Board may, but is not required to, pay all or a portion of such surplus to the Owners or credit to the Owners’ future assessments, in proportion to each Owner’s percentage liability for Common Expenses.
7.07 Creation of Lien and Foreclosure. The Common Expenses Assessments, together with any special assessment or other penalty, cost or charges which an Owner is obligated to pay (“assessments”), shall be a debt of such Owner to the Association on the date when each installment thereof becomes due. In the event of the default of any Owner in the payment of any installment of assessments, such amount, any accelerated payments called due, and any subsequently accruing unpaid assessments, together with interest thereon at the rate of eighteen percent (18%) per annum, or such other rate as may hereafter from time to time be established by the Board, and together with all costs which may be incurred by the Association in the collection of such amount, together with reasonable attorneys’ fees shall be and become a lien on the interest of the defaulting Owner in his Lot. The Association may, but is not required to, execute and record in the Larimer County Recorder’s Office of a Notice of Assessment Default setting forth the name of the defaulting Owner as indicated by Association records, the amount of the delinquency, and the fact that additional delinquencies may accrue and increase such amount, and the legal description of the Lot or Lots affected. The lack of recording any such notice shall not in any way affect the validity and enforceability of the lien in favor of the Association or its rights with respect thereto. Such lie shall attach and be effective from the due date of the assessment, and may be enforced by foreclosure by the Association of the defaulting Owner’s interest in the Property. The lien provided herein shall be in favor of the Association for the benefit of all Owners who are Association members. In any such foreclosure, the defaulting Owner shall be required to pay the costs and expenses of such proceedings, the costs and expenses for filing any notice or claim of lien, and all reasonable attorneys’ fees in connection with such foreclosure. The lien shall include and the defaulting Owner shall also be required to pay to the Association the assessments for the Lot whose payment comes due during the period of foreclosure, and the Association shall be entitled to a receiver to collect the assessments alleged to be due. The Association, on behalf of the member Owners, shall have the power to bid on the Lot at foreclosure sale and to acquire, hold, lease, mortgage, and sell the same. Such lien provided herein shall have the priority provided by the Colorado Common Interest Ownership Act. The Association may, but is not required to send notice of default to an Owner, and a copy of such notice may, but is not required to, be mailed to the holder of any deed of trust or mortgage of record constituting a lien on such Lot. The lack of provision of such notice shall not in anyway affect the validity and enforceability of the lien or obligation of the Owner, or the Association’s rights with respect thereto. Upon the payment of the amounts due, if the Association recorded a Notice of Assessment Default, the Association shall cause to be recorded a certificate setting forth the satisfaction of such lien, the cost of preparation and recording of which shall be paid by the Owner. The remedies of the Association for recovery by foreclosure of its lien rights, and by action against the persons personally liable for payment or for any other remedy available by law or in equity are cumulative and independent of each other. Pursuit of one does not waive or restrict pursuit of another remedy, and such remedies may be undertaken by the Association in any sequence and without the necessity for joinder of any claims or remedies. The lien of the Association shall not expire for the greater of six (6) years, or such longer period as may be provided by any applicable statute, from the date upon which the full amount of assessments become due.
7.08 Owner’s Obligation for Payment of Assessments. The amounts assessed by the Association against each Lot and any interest, costs, and attorney fees in connection with default in payment thereof, shall be the personal and individual debt of the Owner thereof at the time the assessment is made. Each person, if more than one (1), composing the Owner shall be jointly and severely liable therefore. Suit to recover a money judgment for unpaid expenses shall be maintainable without foreclosing or waiving the lien securing same. No Owner may be exempted from liability for assessments by a waiver of the use or enjoyment of the Common Elements or by abandonment of the Lot against which the assessment is made.
7.09 Statement of Assessment Status. Upon payment to the Association of a reasonable fee, as may from time to time be established by the Board, accompanied by the written request of the Owner or any mortgagee or prospective Owner of a Lot, the Association shall issue a written statement setting forth the amount of unpaid assessments and any other charges outstanding with respect to the subject Lot, and the date when the same became due. Such statement shall also include credit for any advanced payments of assessments, but no credit shall be given for any accumulated amounts for reserves or sinking funds, if any. The statement issued by the Association shall be binding upon the Association and its officers and each Owner in favor of persons who rely thereon in good faith. The manner and time for providing such statements shall be as provided by the terms of the Colorado Common Interest Ownership Act, as from time to time amended.
7.10 Liability Upon Transfer. Any Owner who sells his or her Lot in good faith and for value shall be relieved of the obligation for payment of assessments thereafter attributable to the Lot, as of the date of the recordation of the deed transferring such Lot to the subsequent purchaser. Except as may otherwise be provided by the Colorado Common Interest Ownership Act, as from time to time amended, the Owner transferring, and the purchaser of the transferred Lot, shall be jointly liable for payment of all assessments and any related interest, costs and attorney fees attributable to the Lot accrued from the date of execution of the deed through the date of such recordation, and the lien for recovery of the same shall remain in force against such Lot.
ARTICLE VIII
APPOINTMENT OF ARCHITECTURAL CONTROL COMMITTEE (ACC)
8.01 Appointment of Committee, Declarant Control. The Declarant has established an ACC, the initial members of which are Steven L. Buckner, Herbert J. Bell and Lynn Bell. Unless otherwise required by the Colorado Common Interest Ownership Act, until the earlier of ten (10) years from the date of the first conveyance of a Lot to a Purchaser, or on the conveyance to a Purchaser of the last Lot not previously conveyed to a Purchaser, the Declarant shall appoint the ACC, which may consist of one (1) or more persons as determined by the Declarant. At such time as the period of Declarant Control expires as above described, the number of members of the ACC shall be established and all such members shall be appointed by the Board. No member of the ACC shall be entitled to any compensation for services as a member of the Committee. The address of the ACC shall be at the principal office of the Association.
8.02 Architectural Control. No building, fence, out building, landscaping or other permanent improvements shall be erected, placed, or altered on any Lot until the construction plans and specifications and a plan showing the location of the improvements and landscaping plans have been approved by the ACC as to quality of workmanship, quality and type of materials, the esthetics and harmony of exterior design with the character of the community and the existing structures, and as to location of structures with respect to topography and finished grade elevation, and compliance with this Declaration.
8.03 Rules of Procedure. The ACC may adopt rules and regulations from time to time establishing design criteria not inconsistent with this Declaration. The ACC shall meet at the convenience of the members thereof as often as necessary to transact its business. Request for approval of design shall be made to the Committee in writing, accompanied by two (2) complete sets of plans and specifications for any and all proposed improvements to be constructed on any Lot. Such plans shall include plot plans showing landscaping, drainage and grading plans, the location on the Lot of the building, wall, fence, or other structure proposed to be constructed, altered, placed, or maintained thereon, together with the proposed construction material, color scheme for roofs and exteriors thereof, architectural renderings, and proposed landscape plantings. The ACC may require submission of additional plans, specifications, and of samples of materials and colors prior to approving or disapproving the proposed improvement. Until receipt by the ACC of all the required materials in connection with the proposed improvement to the Property, the Committee may postpone review of any material submitted for approval.
8.04 Approval of Plans. The ACC shall approve or disapprove plans, specifications, and details within thirty (30) days from the receipt all materials requested by the Committee and shall notify the Owner submitting them of such approval or disapproval in writing. If all samples, plans, specifications, and details requested by the Committee have been submitted and are not approved or disapproved within such thirty (30) day period they shall be deemed approved as submitted. One set of plans and specifications and details with the approval or disapproval of the ACC endorsed thereon shall be returned to the Owner submitting them and the other copy thereof shall be retained by the ACC for its permanent file. Applicants for ACC action may, but need not, be given the opportunity to be heard in support of their application. Refusal of approval of plans, location, or specifications may be based by the ACC upon any reasonable grounds, including purely aesthetic considerations, which in the sole and uncontrolled discretion of the ACC shall seem sufficient, reasonable, and not capricious. The
Committee may condition its approval of any proposed improvement to property upon the making of such changes therein as the Committee may deem appropriate.
8.05 Filing Fees. As a means of defraying its expenses, the ACC may require a reasonable filing fee to accompany the submission of plans to it in an amount to be fixed by the Board of Directors of the Association from time to time. No additional fees shall be required for resubmission of plans revised in accordance with ACC recommendations.
8.06 Completion of Improvements. Any improvements approved by the ACC shall be timely commenced and in no event commenced later than one (1) year from the date of such approval. If not commenced within such time, the approval of the Committee shall automatically expire and the applicant must thereafter resubmit all plans to the Committee for reconsideration. The fact that a proposed improvement has previously been approved by the Committee shall not require the Committee to again approve such proposed improvement if the approval has expired pursuant to the terms of this paragraph. Once approved improvements have been commenced all such improvements shall be completed no later than one (1) year from the date of commencement.
8.07 Inspection of Work and Notice of Completion. The members of the ACC, and any agent or representative thereof, shall have the right to inspect any improvement to property prior to and after completion, provided that the right of inspection shall terminate three days after the Committee has received from the applicant a notice of completion.
8.08 Estoppel Certificates. Upon the reasonable request of any interested party accompanied by Payment of any fee established by the Board therefore, and after confirming any necessary facts wit the ACC, the Board shall furnish a certificate with respect to the approval or disapproval of any improvement to property or with respect to whether any improvement to property is made in compliance herewith. Any person without actual notice to the contrary shall be entitled to rely on said certificate with respect to all matters set forth therein.
8.09 Non-Liability. No member of the ACC, the Board, the Association, or any other agents, shall be liable for any loss, damage or injury arising out of or in any way connected with the performance of the ACC. In reviewing any matter, the ACC is not responsible for reviewing, nor shall its approval of any improvement to property be deemed to be, an approval of the improvement to property from the standpoint of safety, whether structural or otherwise, or conformance with any building, zoning or other codes or governmental laws or regulations.
ARTICLE IX
GENERAL PROVISIONS
9.01 Term. These covenants as set forth in this Declaration are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five (25) years from the date they are recorded after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by sixty-seven percent (67%) of the then Owners of the Lots has been recorded agreeing to terminate said covenants or change them in whole or in part.
9.02 Amendments.
9.02.1 Amendments by Declarant. Declarant shall have the right to amend this Declaration from time to time in connection with the exercise of any development right reserved to Declarant in this Declaration, or to add additional property to become subject to this Declaration, or for any other purpose for which Declarant is permitted by the Colorado Common Interest Ownership Act to make amendments, whether or not such rights or purposes have been specifically reserved to Declarant elsewhere in this Declaration. Declarant hereby states its intention to reserve, and by this statement does so reserve, all Development Rights, Special Declarant Rights, Declarant Control, and other rights and powers available to Declarant under the Colorado Common Interest Ownership Act.
9.02.2 Amendments by Board. The Board may make such amendments to this Declaration as specifically provided by the Colorado Common Interest Ownership Act in connection with relocation of boundaries or exclusion of any real estate which may be withdrawn following foreclosure and request for exclusion by a lienholder.
9.02.3 Amendments by Owners. Except as otherwise provided above and in this Section 9.02, or by the specific provisions of the Colorado Common Interest Ownership Act, the Owners of sixty-seven percent (67%) of the Lots may at any time modify, amend, augment, or delete any of the provisions of this Declaration provided however that:
A. No amendment may impair any right or power of the Declarant reserved in this Declaration unless the Declarant has consented in writing thereto.
B. No amendment shall be effective with respect to any person not having actual knowledge thereof, until such time as notice of such amendment is filed for record in the Office of the Larimer County Clerk and Recorder.
C. No amendments may be adopted which would be inconsistent with any condition or covenants imposed as a condition f approval of the platting and subdivision of the Property.
D. The Association may not be dissolved without the prior permission of the City Council of the City of Loveland.
E. No amendment may be adopted which affects the obligations of the Association to maintain drainage detention areas and drainage facilities or to comply with any mined land reclamation plan or requirements related to water augmentation plans, preservation of wetlands or other natural resources.
F. Any of the following amendments to be effective must be approved in writing by the record holders of all encumbrances on the Lots at the time of such amendment:
i.) Any amendment which affects or purports to affect the validity or priority of any encumbrance; or
ii.) Any amendment which would necessitate a mortgagee after it has acquired a residential Lot to pay any portion of any unpaid assessment or assessments accruing prior to foreclosure, to the extent the amounts would exceed the priority of such assessments over that provided by the Colorado Common Interest Ownership Act, as amended from time to time.
9.03 Mortgagee Protection Clause. Except as otherwise provided by the terms of the Colorado Common Interest Ownership Act with respect to the priority and enforceability of the lien for assessments, no breach of the covenants or restrictions herein contained, nor the enforcement of any lien provided for herein, shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value, but all of said covenants and restrictions together with any preexisting liens for maintenance assessments shall be binding upon and effective against any Owner whose title is derived through foreclosure or through trustee sale or through deed given in lieu thereof.
9.04 Enforcement. The provisions of these covenants may be enforced in proceedings brought by any Owner or by the Board of Directors of the Association or the ACC. In addition to the provisions for lien foreclosure and recovery against Owners for assessments, enforcement may be by proceedings at law or in equity against any person or persons violating or attempting to violate any of these covenants either to restrain violation, or to recover damages, or both. All remedies provided are cumulative, and pursuit of one shall not bar pursuit of any other independently, or jointly, and in any sequence.
9.05 Severability. Invalidation of any clause, sentence, phrase, or provision of these covenants by judgment or court order shall not affect the validity of any other provisions of this Declaration which shall remain in full force and effect.
9.06 Application of Colorado Common Interest Ownership Act – Conflicts and Provisions. Notwithstanding the provisions of 38-33.3-203, C.R.S., if a conflict arises between the terms of this Declaration, and the provisions of Colorado Common Interest Ownership Act, this Declaration shall control unless the Colorado Common Interest Ownership Act specifically provides that such provisions of the Colorado Common Interest Ownership Act are mandatory or not subject to the ability of the Declarant to elect not to apply such provisions. This Declaration and the Colorado Common Interest Ownership Act are to be construed and applied in such a way as to be complementary and supplemental to each other, and the remedies provided by this Declaration and the Colorado Common Interest Ownership Act shall be deemed to exist by virtue of the lack of any specific provision appearing in either, and a conflict shall only arise if specific provisions of the two cannot be reasonably reconciled. The Board shall have the power and authority to determine and resolve any such conflicts in accordance with the foregoing principles.
IN WITNESS WHEREOF, this Declaration has been executed by the Declarant who is the Owner of all lands in the Property, and mortgagees holding any lien against the Property, whose signatures and identification of Ownership interest are set forth below.
DECLARANT:
BELL HOMES, LLC, a Colorado Limited
Liability Company
By:___(Signature)_________________
STEVEN L. BUCKNER, Manager
STATE OF COLORADO )
(seal) ) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this 19th ay of April, 1994, by STEVEN L. BUCKNER.
WITNESS my hand and official seal. My commission expires: 8/26/95
(Patsy J. Hannah)
Notary Public
