Declarations
FIRST AMENDED AND RESTATED DECLARATION FOR
LAKESIDE AT POLE CREEK TOWNHOMES
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TABLE OF CONTENTS
Recitals 5
ARTICLE I--Definitions 6
1.01 Definitions 6
(a) Act 6
(b) Annual Assessment 6
(c) Association 6
(d) Building 6
(e) Common Elements 6
(f) Common Expenses 6
(g) Common Interest Community 6
(h) Design Guide 6
(i) Design Review Community 6
(j) Development 6
(k) Documents 6
(l) Executive Board 7
(m) Maintenance Fund 7
(n) Map or Plat 7
(o) Member 7
(p) Party wall 7
(q) Property 7
(r) Residential Unit 7
(s) Special Assessment 7
(t) Subdivision 7
(u) Unit 7
(v) Unit Owner 7
ARTICLE II--Property Subject to this Declaration 8
2.01 The Property 8
2.02 Mergers 8
2.03 Description of Community and Association 8
2.04 Maximum Number of Units 8
2.05 Description of Unit 8
ARTICLE III--Property Rights in Easements and Amenities Thereto 9
3.01 Easements and Party Walls 9
(a) Owner's Easement Across Common Elements 9
(b) Easements Reserved and Restrictions on Drainage Easements 9
(c) Easements and Restrictions Pertaining to Party Walls 9
3.02 Common Expenses
3.03 Formulas for Allocation of Interest
10 10
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3.04 Further Subdivision of Units 11
3.05 Combining Units 11
ARTICLE IV--Rights and Obligations of Individual Unit owners 12
4.01 Individual Units 12
4.02 Limited Common Elements 12
4.03 Repairs Resulting from Negligence 12
ARTICLE V--Association 13
5.01 Organizational Structure and Purpose of the Association 13
(a) General Purposes and Powers 13
(b) Power to Maintain Insurance 13
(c) Membership and Voting 13
(d) Executive Board 14
(e) Legal and Accounting 14
(f) Removal of Executive Board 14
(g) Security Services 14
5.02 Duties of the Association 14
(a) Garbage and Trash Removal 14
(b) Insurance Availability 15
(c) Cash Basis 15
(d) Easement Management 15
(e) Maintenance and Repair 15
(f) Rights of Access 15
(g) Common Elements 15
(h) Signatory Requirements for Association Funds 15
ARTICLE VI--Membership in Association 16
6.01 Unit Owners as Members 16
6.02 Termination of Ownership Status 16
6.03 No Avoidance By Non-Use 16
6.04 Voting Rights 16
6.05 Proxies 16
6.06 Designation of a Voting Representative-Proxy 17
6.07 Quorum
6.08 Cumulative Voting
6.09 No Voting Rights for Tenants
6.10 Voting Eligibility
ARTICLE VII --Association Powers
7.01 Exclusive Power
7.02 Project Management
17 17 17 17
18
18 18
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7.03 Utilities Services 18
7.04 Right to Cure Owners' Defaults 18
7.05 Spending Authority 19
7.06 Additional Powers 19
ARTICLE VIII--Assessments 20
ARTICLE IX--Enforcement Powers of Association 20 9.01 Suit at Law or in Equity 20 9.02 Lien 21 9.03 Interest 21
ARTICLE X--Rights Upon Foreclosure 21 ARTICLE XI--Construction of Improvements 22 ARTICLE XII --Restriction of Use 22
12.01 Use
(a) Residential use only 22
(b) Conformance to Applicable laws 22
12.02 Vehicles 22
12.03 Maintenance/Trash 23
12.04 No Signs 23
12.05 Animals and Pets 23
12.06 Drainage and Landscaping 23
12.07 Compliance With Laws 23
12.08 No Outside Clotheslines 23
12.09 Parking 23
12.10 Antennae and Satellite Dishes 24
12.11 Work Affecting Exterior Appearance 24
12.12 Preservation of Trees and Shrubs 24
12.13 Noise 24
12.14 No Lien on Easement or Land of Association 24
12.15 Restriction on Alienation 24
(a) (b)
ARTICLE ARTICLE ARTICLE ARTICLE ARTICLE
Leases and Rental Agreements 24 Assignment to the Association as Landlord 24
XIII--Condemnation 25 XIV--Audit of Books and Records 25
XV—Severability XVI—Governing Law XVII—Binding Effect
25 25 25
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22
FIRST AMENDED AND RESTATED DECLARATION FOR
LAKESIDE AND POLE CREEK TOWNHOMES
THIS FIRST AMENDED AND RESTATED DECLARATION for Lakeside at Pole Creek Townhomes is made this ____________ day of ______________, 2007, by the Association (“The Lakeside at Pole Creek Townhomes Association, a Colorado non- profit corporation”), as authorized agent of the Owners.
RECITALS
WHEREAS, the Declaration for Lakeside at Pole Creek Townhomes was recorded December 13, 2000 at Reception No. 2000-011498 (“Original Declaration”) by Tabernash Meadows, LLC, the original Declarant and Owner of Lakeside at Pole Creek Townhomes; and
WHEREAS, subsequently, a stranger to title, Grand County Custom Homebuilding, LLC, recorded another set of declarations on July 20, 2001 at Reception No. 2001-006846 also purporting to encumber Lakeside at Pole Creek Townhomes (“GCCH Declaration”); and
WHEREAS, more than 67% of the Owners and 51% of the First Mortgagees within Lakeside at Pole Creek Townhomes desire to remove any ambiguity from the public record concerning which declaration encumbers Lakeside at Pole Creek Townhomes; and
WHEREAS, more than 67% of the Owners and 51% of the First Mortgagees desire to remove from the public records any effect or encumbrance on Lakeside at Pole Creek Townhomes, whatsoever, resulting from the recordation of the GCCH Declaration; and
WHEREAS, more than 67% of the Owners and 51% of the First Mortgagees desire to amend and restate the Original Declaration in its entirety.
NOW, THEREFORE, the Association, in accordance with the authority granted it by more than 67% of the Owners and 51% of the First Mortgagees, hereby declares (1) that the GCCH Declaration shall cease to be an encumbrance on the Property, and (2) that the Original Declaration is hereby amended and restated in its entirety as set forth herein, such that this Amended and Restated Declaration shall henceforth be the one and only declaration affecting or encumbering the Property.
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ARTICLE I Definitions
1.01 Definitions
The following words when used in these Covenants and/or supplemental Declarations (unless the context shall prohibit) shall have the following meanings:
(a) “Act” shall mean the Colorado Common Interest Ownership Act set forth in C.R.S. § 38-33.3-101 et seq., as amended.
(b) “Annual Assessment” shall mean the annual assessment amount due from each Unit Owner for that Unit Owner’s proportionate share of expense associated with the enhancement, maintenance and repair of Common Elements within the Community.
(c) “Association” shall mean and refer to the homeowner’s association for The Lakeside at Pole Creek Townhomes Association, a Colorado non-profit corporation, its successors and assigns, acting as the homeowners association for the Community.
(d) “Building” shall mean the separate structures identified on the Map on which one or more Units are located.
(e) Common Elements shall mean all real estate within the Common Interest Community owned or leased by the Association other than a Unit.
(f) “Common Expenses” means expenses for maintenance, repair, operation, management, administration of the common elements and other costs for implementation of architectural and use restrictions, as may be fully described in Article V.
(g) “Common Interest Community” or “Community” shall mean the planned community known as Lakeside at Pole Creek Townhomes.
(h) “Design Guide” shall mean Lakeside at Pole Creek Design Guide adopted by the Pole Creek Valley Design Review Committee.
(i) “Design Review Committee” shall mean the Lakeside at Pole Creek Townhomes Design Review Committee formed to perform the duties and functions delegated and assigned to herein.
(j) “Development” shall mean the real property described on Exhibit A to be known as Lakeside at Pole Creek Townhomes.
(k) “Documents” shall mean the Declarations and Covenants of Lakeside at Pole Creek Townhomes.
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(l) “Executive Board” or “Board” shall mean the Board of Directors of the Association.
(m) “Maintenance Fund” means the fund created by the assessments levied upon Units pursuant to the Bylaws of the Association to provide the Association with the monies from which to purchase the goods and services required.
(n) “Map” or “Plat” shall mean and refer to the document titled “Lakeside at Pole Creek Townhomes.” and referenced on Exhibit A.
(o) “Member” shall mean and refer to each Unit Owner.
(p) “Party Walls” shall mean all common boundaries between Units.
(q) “Property” shall mean the same as defined in Exhibit A
(r) “Residential Unit,” “Dwelling Unit,” “Unit,” “Lot,” or “Parcel” shall
mean any one of the individually designated duplex townhouse units shown on the Map of the Property as referenced on Exhibit A or any subsequent recorded remapping of a portion of the Property.
(s) “Special Assessment” shall mean the assessment amount due from each Unit Owner for that Unit Owner’s proportionate share of an extraordinary expense associated with the enhancement, maintenance and repair of Common Elements within the Community.
(t) “Subdivision” shall mean Lakeside at Pole Creek Townhomes.
(u) “Unit” shall mean the separate physical portions of the Community
designated for separate ownership as defined in Section 2.05.
(v) “Unit Owner” or “Owner” shall mean and refer to each record owner, whether one or more persons or entities, of the fee title of any Unit, but whether such title interest shall be sole, joint, common, by the entireties, or fractional, and, notwithstanding any applicable theory of the Mortgage, shall not mean or refer to the Mortgage unless and until such Mortgage has acquired fee simple title to the Unit pursuant to foreclosure or proceeding in lieu of foreclosure.
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ARTICLE II
Property Subject to this Declaration
2.01 The Property
The Property which is, and shall be held, transferred, sold, conveyed and occupied, subject to these Covenants is located in Grand County, Colorado and is more particularly described on Exhibit A, attached hereto.
2.02 Mergers
Upon a merger or consolidation of the Association with another association, the properties, rights and obligations of the merged or consolidated association(s) shall be added to and become the properties, rights and obligations of the surviving association. The surviving or consolidated association shall administer the covenants established by these Covenants with the Property. No such merger or consolidation shall affect a revocation, change or addition to the covenants established by these Covenants within the Property, except as hereinafter provided.
2.03 Description of Community and Association
The Common Interest Community is a planned community, known as Lakeside at Pole Creek Townhomes, and shall be operated by the Association.
2.04 Maximum Number of Units
The Common Interest Community contains 56 Units, comprised of 28
duplexes.
2.05 Description of Unit
A Unit is the physical portion of the Common Interest Community designated for separate ownership or occupancy as shown on the Map of the Property. The boundaries of each Unit created by the Declaration are shown on the Map as numbered Lots, identifying number, and are more particularly described on the plat referenced on Exhibit “A”.
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ARTICLE III
Property Rights in Easements and Amenities Thereto
3.01 Easements and Party Walls, General Rules of Law to Apply
(a) Owner’s Easement Across Common Elements – Every Owner shall have a right in easement for ingress to and egress from such Owner’s Unit over and across the Common Elements, which easement shall be appurtenant to and shall pass with the title to every unit, subject to the right of the Association to dedicate or transfer all or part of the Common Elements to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Association. No such dedication or transfer by the Association shall be effective unless an instrument signed by 67% of the Unit Owners agreeing to such dedication or transfer has been recorded in the records.
(b) Easements Reserved and Restrictions on Drainage Easements – Easements and rights-of-way are reserved on, over, and under the Common Elements and the Units as shown on the Map, for construction, maintenance, repair, replacement, and reconstruction of holes, wires, pipes, conduit for electricity, gas, telephone, drainage, sprinklers and any other public or quasi- public utility service purposes, and for sewer and pipes of various kinds.
(c) Easements and Restrictions Pertaining to Party Walls.
(1) Each Unit within a Building is adjacent to another Unit and is separated by a Party Wall. Party Walls exist along and over the common boundaries between the Units and include the footings underlying and a portion of the roof thereover. Party walls form a structural part of and physically join the Improvements on the adjoining Units.
(2) The Owners of adjacent Units shall be deemed to own the necessary easements for the perpetual lateral and subjacent support, maintenance, repair, and inspection of the respective Party Wall with equal rights of joint use.
(3) No Unit Owner shall have the right to destroy, remove, or make any structural changes to a Party Wall which would jeopardize the structural integrity of each of the Units sharing such Party Wall without the prior written consent of (1) the Association, (2) the adjacent Unit Owner, and (3) any first mortgagee with respect to such adjacent property; nor shall any Unit Owner subject a Party Wall to the insertion of or placement of timbers, beams or other materials in such a way as to affect adversely the Party Wall’s structural integrity. No Unit Owner shall subject a Party Wall to any use, which in any manner whatsoever may interfere with equal use and enjoyment of the Party Wall by an adjoining Unit Owner.
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(4) Should a Party Wall be structurally damaged by the intentional or unintentional act or negligence, of a Unit Owner or the responsible Unit Owner’s agent, contractor, employee, tenant, family member, licensee, guest, or invitee, the responsible unit owner shall promptly rebuild and/or repair the Party Wall at the responsible Unit Owner’s expense.
(5) To the extent not inconsistent with the terms and conditions of this Declaration, general rules of law of the State of Colorado concerning party walls shall be applicable hereto.
3.02 Common Expenses
The Common Expenses are the expenses or financial liabilities for the operation of the Common Interest Community. Common Expense assessments are the funds that are required to be paid by each Unit Owner in payment of such Owner’s Common Expense liability and may take the form of either an Annual Assessment or a Special Assessment. These expenses include:
(a) Expenses of administration, maintenance, construction, improvement, repair, or replacement of the Common Elements;
(b) Expenses declared to Common Expenses by the Documents or by the Act;
(c) Expenses agreed upon as Common Expenses by the Association;
(d) Such reasonable reserves, as may be established by the Association, whether held in trust or by the Association, for repair, replacement, or addition to the Common Elements, or any other real or personal property acquired or held by the Association;
(e) The costs and expenses imposed on the Association, benefiting fewer than all the Units, shall be a Common Expense, but assessed exclusively against those Units benefited.
3.03 Formulas for Allocation of Interest
The interest allocated to each Unit has been calculated by the following formula:
(a) Undivided Interest in the Common Elements – The percentage of the undivided interest in the Common Elements allocated to each Unit is based on one share to each Unit compared with the total shares allocated to all the Units in the Common Interest Community.
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(b) Liability for Common Expenses – The percentage of liability for Common Expenses allocated to each Unit is based upon one share to each Unit compared with the total shares allocated to all the Units in the Common Interest Community. Nothing contained in this subsection shall prohibit certain Common Expenses from being apportioned to particular Units under Sections 3.05 or 4.03 of this Declaration.
3.04 Further Subdivision of Units
A Unit Owner shall not further subdivide a Unit.3.05 Combining Units
If an Owner combines two Units with the intent of creating one Unit
therefrom, such resulting Unit shall continue to have the full Allocated Interest originally assigned to the Units so combined.
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ARTICLE IV
Rights and Obligations of Individual Unit Owners
4.01 Individual Units
It shall be the duty and obligation of the each Unit Owner, at such Unit Owner’s expense, to beautify and keep neat, attractive, sightly, and in good order such Owner’s Unit and the exterior portions of the Unit, including driveways, and to maintain, repair, and replace the same to the extent such duties are not the responsibility of the Association. If the Owner does not discharge this obligation, then, following notice and hearing, the Association may arrange to have the work done and assess the Owner for the cost of such work, plus twenty-five (25%) of such costs for inspection, administrative costs, legal costs and overhead of the Association and other incidental expenses. Such obligation shall include the Unit Owner’s obligation, at the Unit Owner’s expense, to maintain, repair, and replace all portions of such Owner’s Unit.
4.02 Limited Common Elements
Each Unit Owner shall be responsible for removing snow, leaves, and debris from all patios, driveways and balconies that are pertinent to such Owner’s Unit.
4.03 Repairs Resulting From Negligence
Each Unit Owner will reimburse the Association for any damages to the Common Elements caused intentionally, negligently, or by such Unit Owner’s failure to properly maintain, repair, or make replacements to such Unit Owner’s Unit or to those Limited Common Elements for which such Unit Owner is responsible. The Association will be responsible for damage to the Units that is caused by the Association’s intentional acts, or gross negligence.
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ARTICLE V ASSOCIATION
5.01 Organizational Structure and Purpose of the Association
The Association, created to provide the services and benefits described herein, shall have the following organizational structure, purposes, powers and authority:
(a) General Purposes and Powers – The Association, through the Executive Board or managing agent, shall perform functions and hold and manage property as provided in this Declaration so as to further the interest of Owners of Units in the project. The Association shall have all the powers necessary or desirable to effectuate such purposes, limited to common landscaping and sprinklers, fencing, and entrance monuments.
Further, each individual owner shall be responsible for the following common repairs and replacements, (1) The roof of each two unit town home building every 20 years; (2) The re-staining, of the exterior, of each two unit town home building every 7 years as adjusted by the Lakeside at Pole Creek board of Directors based upon experience. All other maintenance or repairs to either the inside or outside of each individual unit and associated driveways shall also be the sole responsibility of each individual owner.
It is understood that the Lakeside at Pole Creek Townhomes Association is established as a subordinate homeowners association to Pole Creek Valley Owner’s Association (“Master Association”), and is subject to the terms and conditions set forth in the Master Association’s “Declaration of Covenants, Conditions and Restrictions for Pole Creek Valley”. Each unit owner shall be assessed separately by each home owner’s association for different services, dues and costs.
(b) Power to Maintain Insurance - The Association shall have the power to obtain and keep in force and effect, property insurance on all insurable improvements and personal property owned by the Association. The Association also shall have the power and the obligation to obtain and keep in full force and effect general liability insurance against claims and liabilities arising in connection with the ownership, existence, use, or management of the Association Properties, including, but not limited to the open space. The Association shall obtain such other insurance as may be required by law and shall have the power to obtain such other insurance and such fidelity, indemnity or other bonds as the Association shall deem necessary or desirable.
(c) Membership and Voting – Each Unit Owner shall automatically be a Member of both Pole Creek Valley Owner’s Association and Lakeside at Pole Creek Townhomes Association. Said membership is appurtenant to the Unit of
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said Owner, and title to the ownership of the membership for that Unit automatically passes with fee simple title to the Unit. If the fee simple title to a Unit is held by more than one person, the membership as to such Unit shall be joint, and a single membership for such Unit shall be issued in the names of all Owners, and they shall designate to the Association in writing the name of one natural person 18 years of age or older who shall have the power to vote said membership at any meeting of Members. Membership in the Association shall be limited to Owners of Units in the project, and each Unit shall be entitled to the voting rights allocated to that Unit in the Bylaws.
(d) Executive Board – The affairs of the Association shall be managed by an Executive Board, which may by resolution delegate any portion of its authority to the Executive Committee or to a managing agent for the Association. There shall be no fewer than five (5) Members of the Executive Board, all of whom shall be Owners or residents of a Unit. In the event of an absence of a quorum, being three (3) Members of the Executive Board, at a regularly scheduled board meeting, the meeting may, at the discretion of those Members present, proceed and the business of the Association acted upon. In such event, the Board will notify homeowners of the absence of the quorum and the business that was transacted. If no objection in writing is received within 30 days, the action taken at the meeting will stand as approved.
(e) Legal and Accounting - Legal and accounting services may be engaged, as the Board deems necessary or desirable in connection with the operation of the Association or enforcement of the provisions hereof,
(f) Removal of the Executive Board - Notwithstanding any provision of this Declaration, following notice under C.R.S. § 38-33.3-308, the Unit Owners, by a vote of 67% of all Unit Owners present and entitled to vote at a meeting of the Unit Owners at which a quorum is present may remove a Member of the Executive Board with or without cause.
(g) Security Services - If deemed necessary by affirmative vote of the Association, procurement of security services for the protection of the Units.
5.02 Duties of the Association
The Association, in addition to any duties and obligations otherwise set forth in these Declarations, shall have the following duties, for the benefit of the Members, to provide, directly or through suppliers, the following on a basis which does not discriminate between or among any individual Members or classes of Members, and which does not give priority to any individual or groups:
(a) Garbage and Trash Removal – Garbage and trash removal service for the Units are the responsibility of the unit owner to the extent that such services are not provided by public agencies, public utility companies or other
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service companies, and such other services and materials of a public utility nature as are not provided by a public utility, public agency or other private service company for the Units.
(b) Insurance Availability - To the extent reasonably available, the Executive Board shall obtain and maintain insurance coverage as set forth in this Article. If such insurance is not reasonably available, and the Executive Board determines that any insurance described in this Article will not be maintained, the Executive Board shall cause notice of that fact to be delivered to all Unit Owners.
(c) Cash Basis – All business of the Association shall be upon a cash basis and it shall not pledge or lien its assets on borrowings or otherwise.
(d) Easement Maintenance – The Association shall maintain at common expense entryway signage, fencing, and buried conduit and pipelines as necessary for the sprinkler systems.
(e) Maintenance and Repair – The Association shall maintain, repair, replace, beautify, and keep neat, attractive, sightly, and in good order, to the extent that such functions are not expected to be performed by Grand County or any other political subdivision thereof or of the State of Colorado, the Entry Monument, perimeter fencing and the common sprinkler system. The Association may from time to time hire and/or contract with third parties to achieve the objectives of this Section 5.02
.
(f) Right of Access – Any person authorized by the Executive Board shall have the right of access to a Unit for the purpose of performing emergency repairs. In case of an emergency, no request or notice is required, and the right of entry shall be immediate, whether or not the Unit resident is present at the time. This provision is in addition to the provisions in Section 3.01 (b)(3) concerning the Party Walls.
(g) Common Elements – The Association shall maintain all of the Common Elements, except the portions of the Limited Common Elements that are required by this Declaration or the Act to be maintained, repaired, or replaced by the Unit Owners. The Association has no responsibility for landscaping put in by Unit Owners.
(h) Signatory requirements for Association funds - Two Directors must sign any check written on the operating and maintenance account for an amount over $500.00.
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ARTICLE VI Membership in Association
6.01 Unit Owners as Members
Every Unit Owner shall be a Member of the Association. Status as a Unit Owner is the sole qualification for membership.
6.02 Termination of Ownership Status
Rights to a membership and status as a Member terminates upon termination of status as a Unit Owner. Upon sale or other conveyance of the Unit Owner’s interest in such Unit Owner’s Dwelling Unit(s), the selling or conveying Unit Owner(s) shall be relieved of liability for assessments levied from and after the date of such sale; provided, however, that no such sale or assignment shall relieve an Unit Owner of liability arising prior to the date such sale or assignment is consummated. Acceptance by a purchaser or assignee of such sale or assignment evidences such purchase or assignee’s assumption of personal liability for all assessments arising from and after the date such sale or assignment is consummated. A sale or assignment of a Unit Owner’s interest shall be deemed to have occurred for all purposes of these Covenants and agreement upon delivery of a deed or document of assignment, or upon recording in the public records an instrument of conveyance of such interest.
6.03 No Avoidance By Non-Use
No Unit Owner may avoid the obligations of membership during the period of ownership by renunciation or abandonment of such Unit Owner’s Dwelling Unit, or any other act of abandonment or renunciation.
6.04 Voting Rights
Ownership of each Unit shall carry with it one (1) vote. If more than one person holds an interest in any Unit, all such persons shall be Members; however, the vote for such Unit shall be exercised as they among themselves shall determine, but in no event shall more than one (1) vote be cast with respect to any Unit. If any Owner has a record title interest in more than one Unit, that Owner shall have a voting right with respect to each such Unit in which he has an ownership interest.
6.05 Proxies
At all meetings of Members votes may be cast in person or by proxy, but no proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. All proxies must be filed with the
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Secretary of the Association, in writing or via fax or email, at or before the appointed time of each meeting. Every proxy shall be revocable and shall automatically cease upon conveyance by the Member of his Unit.
6.06 Designation of a Voting Representative – Proxy
If title to a Unit is held by more than one individual, by a firm, corporation, partnership, association, or other legal entity, or any combination thereof, a proxy must be executed and filed with the Association appointing and authorizing one (1) person or alternate persons to attend all annual and special meetings of Association Members and thereat to cast the voting interest allocated to that Unit as provided in these Covenants.
6.07 Quorum
Except as otherwise provided in these Covenants or by the Articles of Organization or the Bylaws, the presence in person or by proxy of Association Members possessing a sufficient voting interest to constitute fifty percent (50%) of the votes shall constitute a quorum, and such Members present in person or by proxy shall constitute the Members entitled to vote upon any issue presented at a meeting at which a quorum is present. If a quorum exists, the action of the majority of the votes present shall be sufficient to make decisions binding on all Unit Owners, unless a different number or method of voting is expressly required by statute or by these Covenants.
6.08 Cumulative Voting
Cumulative voting is prohibited.6.09 No Voting Rights for Tenants
Tenants shall have no vote in Association affairs solely on account of their
status as tenants. Tenants shall have such right to appear at Association meetings and be heard as may be determined by the Association through its rules. A tenant may hold the proxy of the Unit Owner subject to the requirements of Sections 6.05 and 6.06, supra.
6.10 Voting Eligibility
No Unit Owner may vote unless all dues and assessments are current and the Unit Owner is in compliance with the provisions of this declaration.
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7.01 Exclusive Power
ARTICLE VII Association Powers
Except as expressly otherwise provided herein, the duties of the Association enumerated in Article V shall be exclusively performed by the Association, and any duty to be performed or right to be exercised by the Association, as enumerated therein, shall not be performed by any Owner individually without the written consent of the Association. The Association shall have the exclusive right and obligation to contract for all goods, services and insurance, payments for which are to be made from the operating fund and assessed pro rata to all Unit Owners as a Common Expense.
7.02 Project Management
The Association shall have the power to contract with the various contractors to provide the management services required to be performed for the benefit of the Units.
7.03 Utilities Services
The Board shall have the right to permit the provision of any goods or services from any public utility or public utility company and such contract or arrangement shall constitute performance on the part of the Board of its obligation with respect to such goods or services until such time as the contract or arrangement is terminated. To effectuate the foregoing, the Board may grant such utility easements as may be required, over, along, across, under and through the private roadways for the provision of such utility service.
7.04 Right to Cure Owners’ or Additional Property Owners’ Defaults
Where any Unit Owner has an obligation hereunder to perform any act of maintenance, preservation, construction, alteration or repair on such Owner’s Unit or with respect to any Improvements thereon, and such Owner fails to perform such work within thirty (30) days after notice of the need to perform the same and demand for such performance from the Association (or fails to commence to perform such work and diligently proceeds to complete the same where completion cannot be accomplished within said thirty (30) days period), then the Association shall have a right to enter upon the Unit to perform the work for the account of the delinquent Owner. All costs and expenses incurred in connection therewith shall be paid by the Owner upon receipt of an invoice for such work assessed against the delinquent Owner as a special assessment.
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7.05 Spending Authority
The Board shall have the authority to spend amounts as delineated in the approved annual budget. Any expenditure beyond the approved budget in excess of 10% of that budget must be approved by the membership.
7.06 Additional Powers of the Association
In addition to the forgoing enumerated powers, the Association shall also have full power and authority to take the following actions:
(a) Adopt and amend budgets for revenues, expenditures, and reserves, and establish and collect Annual and Special Assessments from Members;
(b) Hire and terminate Managing Agents and other employees, agents, and independent contractors;
(c) Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more Members on matters affecting the Common Interest Community;
(d) Make contracts and incur liability;
(e) Regulate the use, maintenance, repair, replacement and
modification of Common Elements;
(f) Cause Additional Improvements to be made as a part of the Common Elements;
(g) Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property, except that Common Elements may only be conveyed or subjected to a security interest pursuant to C.R.S. § 38-33.3- 312;
(h) Grant easements, leases, licenses and concessions through, over or across the Common Elements;
(i) Impose and receive any payments, fees, or charges for the use, rental or operation of the Common Elements located outside the Units’ boundaries.
(j) Impose charges for late payment of assessments, recover reasonable attorneys’ fees and other legal costs for collection of assessments and other actions to enforce the power of the Association, regardless of whether suit was initiated, and, after notice and an opportunity to be heard, levy reasonable
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fines for violations of the Declaration, Bylaws, and rules and regulations of the Association;
(k) Impose reasonable charges for the preparation and recordation of Amendments to the Declaration or statements of unpaid assessments;
(l) Provide for the indemnification of its officers and Executive Board and maintain directors and officers liability insurance; and
(m) Invest and reinvest Association reserves in short term instruments or money market funds.
(n) Act in the capacity of the Design Review Committee or to delegate the responsibility to a committee to act on its behalf is such capacity.
ARTICLE VIII Assessments
8.01. Initial Capital Contribution. A one-time initial assessment per Unit shall be made in the amount of six hundred nineteen and 80/100 dollars ($619.80). The initial assessment shall be due and payable to the Association upon conveyance of a completed Unit from the builder to the first Unit Owner. Thereafter, the amount of any additional dues and/or assessments, whether Annual or Special in nature, shall be determined in accordance with this Declaration.
ARTICLE IX Enforcement Powers of Association
Each Annual Assessment and each Special Assessment shall be a separate, distinct and personal debt and obligation of the Member against whose Unit(s) the same are assessed and shall be immediately due when made and notice thereof delivered to the Member by mail or hand delivery. In the event of a breach of any covenant rule or regulation of the Association or default(s) in payment of any Annual or Special Assessment in addition to any other remedies herein or by law provided, the Association may enforce each such obligation as follows:
9.01 Suit at Law or in Equity
The Association may bring a suit at law for unpaid assessments or damages or in equity to enjoin a breach of these Covenants. Each such action must be authorized by a majority vote of the Board of Directors. Any judgment rendered in any such action shall include a sum for reasonable attorneys’ fees incurred by the Association in any such cause of action, regardless of whether the Association is deemed to be the substantial prevailing party.
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9.02 Lien
Upon determination of the existence of a default in payment of assessment or breach of any Covenant, the Board may deliver written notice to the defaulting Member, stating the date and the amount of the delinquency. If such delinquency is not paid within thirty (30) days after delivery of such notice, the Board may lien the Unit of such delinquent Member by filing a Notice of Assessment and Lien Statement (“Lien Statement”) with the Clerk and Recorder of Grand County, which shall be a valid lien. All Members waive the right to claim or assert a homestead exemption as against any such claim of lien.
Such claim of lien shall state (i) the name of the delinquent Member, (ii) a legal description of the Unit against which claim of lien is made, and (iii) that the claim of lien is made by the Board pursuant to these Covenants and agreement in an amount equal to the delinquency stated in claim. The lien so claimed shall immediately attach as of the due date of the Assessment, subject to perfection by recordation of the statement of lien in the Records. Each default shall constitute a separate basis for a lien. Any such lien may be foreclosed by appropriate action in court in the manner provided by law for the foreclosure of a Mortgage. In such action, reasonable attorneys’ fees shall be awarded to the Association.
9.03 Interest
Any such delinquent Assessments shall bear interest at the lesser rate of two percent (2%) per month or the maximum rate allowable by law, from the date of delinquency until the date the Assessment is paid in full, such amount to be added to the judgment recovered by exercise of the rights set forth in Article IX.
ARTICLE X Rights Upon Foreclosure
In the event a Mortgagee or its nominee succeeds to the interest in a Unit through foreclosure (whether judicial or non-judicial) or by deed or other conveyance in lieu of foreclosure, such Mortgagee or its nominee shall be a Member of the Association and subject to all burdens and benefits thereof.
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ARTICLE XI Construction of Improvements
No change of colors or materials, no work of improvement, grading, excavation, landscaping, fencing, tree or shrub planting or removal shall be undertaken upon any Unit by or on behalf of a Unit Owner without the prior written approval of the Design Review Committee. All such changes, improvements, grading, excavation, landscaping, fencing, tree or shrub planting and any construction related thereto, including any remodeling, reconstruction, alterations or additions to the outside of any Unit, shall first be subject to Design Review Committee written approval.
ARTICLE XII Restrictions on Use
12.01 Use
(a) Each Unit shall be used as a residence and accessory uses as permitted herein, no industry, business, trade, or commercial activities other than home professional pursuits without employees, public visits, or nonresidential storage, mail, or other use of a Unit shall be conducted, maintained, or permitted in any part of a Unit. For the purposes thereof, leasing or renting of a Unit for residential purposes shall not constitute a commercial use or enterprise notwithstanding the provisions of hotel or resort type services in connection with such leasing or renting.
(b) No immoral, improper, offensive, or unlawful use may be made of the Property; Unit Owners shall comply with, and conform to, all applicable laws and regulations of the United States and of the State of Colorado and all ordinances, rules, and regulations of Grand County. The violating Unit Owner shall hold harmless the Association and other Unit Owners from all fines, penalties, costs, and prosecutions for any violation or non-compliance.
12.02 Vehicles
No trucks, trail bikes, recreational vehicles, motor homes, snowmobiles, campers, trailers, boats or boat trailers, or vehicles other than passenger vehicles or utility trucks with a capacity of one (1) ton or less shall be parked, stored, or in any manner kept in open view on an easement or by or on any Unit within Lakeside at Pole Creek, except in a closed approved garage.
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12.03 Maintenance/Trash
All Unit Owners shall maintain their Units in a clean and well-maintained condition. No storage of trash will be permitted in or outside any Unit in a manner which may permit the spread of fire, odors, seepage, or encouragement of vermin.
12.04 No signs
No signage of any kind shall be displayed to the public view on or from any Unit designated for the residential use on the Development plan, except signs associated with the sale of the Unit.
12.05 Animals and Pets
No animals, birds, or reptiles of any kind may be brought within the Community, except for a maximum of two dogs, two cats or other indoor household pets. Pets must be kept on a leash when on the Common Elements.
12.06 Drainage and Landscaping
No Owner shall do any work, construct any improvement, place any landscaping, or suffer the existence of any condition whatsoever which will alter or interfere with the drainage pattern or the landscaping of the Development.
12.07 Compliance With Laws
Subject to the rights of reasonable contest, each Owner shall promptly comply with the provisions of all applicable statutes, ordinances, administrative rulings, or regulations pertaining to each Owner’s Unit.
12.08 No Outside Clotheslines
No laundry or wash shall be dried or hung outside any Building.12.9 Parking
No resident shall park any automobile(s) in any street or upon any Unit or
Lot, except within garages, carports, or driveways for more than 6 continuous hours.
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12.10 Antennae and Satellite Dishes
No exterior antennae or satellite dishes in excess of 36 inches diameter shall be permitted without the prior written approval of the Design Review Committee. No activity shall be conducted on any Lot or in any Unit that materially interferes with television or radio reception of any other Unit.
12.11 Work Affecting Exterior Appearance
No work shall be undertaken (other than routine maintenance and repair) that may result in changes in the exterior appearance of any Building or Dwelling Unit (including, without limitation, erection of fences, planting of shrubs or installation of paving, or other cement flatwork) without the prior written consent of the Design Review Committee.
12.12 Preservation of Trees and Shrubs
No trees or shrubs shall be removed from any Common Elements without prior approval of the Design Review Committee.
12.13 Noise
No exterior horn, whistles, bells, or other sound devices except security devices used exclusively to protect the security of the Dwelling Unit shall be used.
12.14 No Lien on Easement or Land of Association
No Unit Owner shall cause or permit any Common Element or Easement, nor any item of Association-owned personality to be subject to any lien or charge of any nature whatsoever, except that a first mortgage or Deed of Trust or secondary financing may be placed upon a Unit Owner’s property, which encumbrance shall be subject to the terms and provisions of these Covenants.
12.15 Restrictions on Alienation
The following restrictions on alienation apply to all Units and to the Common Elements:
(a) Any lease or rental agreement permitted under these Declarations shall be in writing and subject to the requirements of the Documents and the Association.
(b) All leases of a Unit shall include a provision that the tenant will recognize and assign to the Association as landlord, solely for the purpose of having the power to enforce a violation of the provisions of the Documents
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against the tenant, provided the Association gives the Owner of such leased Unit notice of the Association’s intent to so enforce and a reasonable opportunity to cure the violation directly prior to the commencement of the enforcement action.
ARTICLE XIII Condemnation
If part or all of the Common Interest Community is taken by any power having the authority of eminent domain, all compensation and damages for and on account of the taking shall be payable in accordance with C.R.S. § 38-33.3-107.
ARTICLE XIV Audit of Books and Records
The Association shall have an annual accounting of the Association funds and financial statement prepared and presented to the Association by a public accountant or a certified public accountant.
ARTICLE XV Severability
The provisions hereof shall be deemed independent and severable, and invalidity or partial invalidity or unenforceability of any one provision or portion hereof shall not affect the validity or enforceability of any other provision hereof.
ARTICLE XVI Governing Law
This Document and any interpretation of the same shall be pursuant to the laws of the State of Colorado. Any legal proceedings shall be brought in Grand County District Court, State of Colorado.
ARTICLE XVII Binding Effect
The terms, covenants and conditions herein contained shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. The provisions hereof shall constitute covenants running with the land, burdening and benefiting each and every part of the Property and every interest therein. In addition, the provisions hereof shall be enforceable in equity and equitable servitude upon the land and as covenants in an agreement between Owners. The failure to enjoin a breach or previous breach shall not prevent an action to damages upon any subsequent breach. Each owner, each mortgagee, and each beneficiary of any trust deed by acceptance of a conveyance which is subject to these Covenants and Restrictions waives the rights to assert defenses of waiver, estoppel, with respect to any failure to enforce a prior breach.
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IN WITNESS WHEREOF, the undersigned, being the President of the Association, has executed these Covenants this ____ ____day of ____________, 2007.
THE LAKESIDE AT POLE CREEK TOWNHOMES ASSOCIATION, a Colorado non-profit corporation
By: ______________________________________________________ President
STATE OF COLORADO )
) ss.
COUNTY OF GRAND )
The foregoing instrument was acknowledged before me this ___ day of _____________, 2007 by _____________________, as President of The Lakeside at Pole Creek Townhomes Association, a Colorado non-profit corporation.
My Commission expires: _____________ Witness my hand and official seal.
____________________________________ Notary Public
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EXHIBIT A
LAKESIDE AT POLE CREEK TOWNHOMES, FINAL PLAT, BEING A REPLAT OF LOT MF 1, POLE CREEK VALLEY SUBDIVISION, according to the plat recorded December13, 2000 at Reception No. 2000-011490.
County of Grand, State of Colorado
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