DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR THOSE PORTIONS OF COBBLESTONE RIDGES DESCRIBED HEREIN
THIS DECLARATION is made and entered into this 7th day of November, 1996, by COBBLESTONE RIDGES, LLC, a Colorado limited liability company hereinafter referred to as the “Declarant.”
A. The Declarant is the owner of the following described real property in Mesa County, Colorado (“Property”).
Lots 1-20, Block 1, Cobblestone Ridges;
Losts 1-4, Block 2, Cobblestone Ridges;
Lots 1-2, Block 3, Cobblestone Ridges;
Tracts A, B, and C, Cobblestone Ridges;
Lots 1-11, Block 1, Cobblestone Ridges Phase 2;
Lots 1-8, Block 2, Cobblestone Ridges Phase 2; and
Lots 1-2, Block 3, Cobblestone Ridges Phase 2;
County of Mesa, State of Colorado.
B. The Declarant desires to create a planned community upon the Property, and to subject the Property to the covenants, conditions and restrictions set forth herein and pursuant to the Colorado Common Interest Ownership Act, section 38-33.3-101, et seq., C.R.S. (“Common Interest Act”).
NOW, THEREFORE, the Declarant hereby declares that the Property shall be held, sold and conveyed subject to the covenants, conditions and restrictions set forth herein which shall run with the Property and be binding on all parties having any right, title or interest in the Property or any part thereof, their heirs, personal representatives, successors and assigns, and shall insure to the benefit of each owner thereof.
ARTICLE I. DEFINITIONS
Section 1, “Agencies” shall mean collectively refer to the Federal National Mortgage Association (FEMA), the Government National Mortgage Association (GNMA), the Federal Home Loan Mortgage Corporation (FHLMC), the Veterans Administration (VA), and the Federal Housing Administration (FHA), or any other public, quasi public or private entity which performs (or may perform in the future) functions similar to these currently performed by such entities.
Section 2, “Architectural Control Committee” shall mean and refer to the committee appointed by Declarant or by the Board of Directors of the Association, as more fully provided in Article V hereof.
Section 3, “Association” shall mean or refer to Cobblestone Ridges Owners Association, Inc., a Colorado nonprofit corporation, its successors and assigns. The Association shall act by and through its Board of Directors and officers.
Section 4, “Declarant” shall mean and refer to Cobblestone Ridges, LLC, a Colorado limited liability company, its successors and assigns, provided such successors or assigns acquire more than one (1) unimproved Lot from the Declarant for the purpose of development and resale, and provided such person or entity shall first be designated by the Declarant, as a Declarant for such purposes by a written instrument duly recorded in the real property records of Mesa County, Colorado.
Section 5, “Declaration” shall mean and refer to this Declaration of Covenants, Conditions and Restrictions, as the same may be amended from time to time.
Section 6, “First Mortgage” shall mean and refer to any unpaid and outstanding mortgage, deed of trust or other security instrument encumbering a Lot recorded in the records of the Office of the Clerk and Recorder of the County of Mesa, Colorado, having priority of record over all other recorded liens except those government liens made superior by statute (such as general ad valorem tax liens and special assessments).
Section 7, “First Mortgagee” shall mean and refer to any person named as a mortgagee or beneficiary under any First Mortgage, or any successor to the interest of any such person under such First Mortgage.
Section 8, “Lot” shall mean and refer to any separate numbered lot or plot of land shown upon any recorded map or plat of the Property or any portion thereof, as the same may be amended from time to time, together with all appurtenances and improvements now or hereafter thereon, with the exception of the Common Area, as defined herein.
Section 9, “Dwelling Unit” shall mean or refer to any residential improvement constructed within the Property, including, but not limited to, single-family residences, condominium units, townhouse units or patio homes.
Section 10, “Common Area” shall mean those portions of the Property designated on the plat or map thereof as common area, including a pressurized pipline irrigation system and all property designated as Open Space, but exluding any portion of the Property dedicated for public use such as roads, streets, curbs, sidewalks and bike paths.
Section 11, “Member” shall mean and refer to each Owner of a Lot that is subject to assessment hereunder and Declarant. Membership in the Association shall be appurtenant to, and may not be separated from, ownership of a Lot.
Section 12, “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Property, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
Section 13, “Property” shall mean and refer to that certain real property described in the Recitals of this Declaration and as further shown and described on a plat or map thereof, together with such additions thereto, if any, as may hereafter be brought within the jurisdiction of the Association.
Section 14, “Special Declarant Rights” shall mean and refer to the development and other rights expressly reserved for the benefit of Declarant in accordance with the terms and conditions of this Declaration.
Section 15, “Political Signs” means a sign that carries a message intended to influence the outcome of an election, including supporting or opposing the election of a candidate, the recall of a public official, or the passage of a ballot issue.
ARTICLE II. PROPERTY RIGHTS IN THE COMMON AREA
Section 1, Owners’ Right of Enjoyment. Subject to the provisions of Section 2 of this Article, every Owner shall have a nonexclusive right to enjoy and use the facilities, if any, within the Common Area and such right shall be appurtenant to and shall pass with the title to every Lot.
Section 2, Extent of Owners’ Right. The right of enjoyment created hereby shall be subject to the following:
(a) The right of the Association to promulgate and publish rules and regulations with which each Member shall strictly comply; and
(b) The right of the Association, as provided in its Articles and Bylaws, to suspend the voting rights of a Member for any period during which any assessment against his Lot remains unpaid and, for a period not to exceed sixty (60) days, for an infraction of its published rules and regulations; and
(c) The right of the Association to close or limit the use of the Common Area while maintaining, repairing, and making replacement in the Common Area.
Section 3, Delegation of Use. Any Onwer may delegate, in accordance with the Bylaws, his right of enjoyment to the Common Area to the members of his family, his tenants or contract purchasers who reside on his Lot.
ARTICLE III. MEMBERSHIP AND VOTING RIGHTS: THE ASSOCIATION
Section 1, Association. The Association shall be and constitute the entity having the exclusive right to undertake and perform the duties and exercise the powers of the Association as set forth in this Declaration, including, but not limited to, all powers set forth in the Common Interest Act.
Section 2, Membership. Every Owner of a Lot which is subject to assessment hereunder shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot. Each Owner shall be entitled to one vote.
Section 3, Directors of the Association. The affairs of this Association shall be managed by a board of three (3) directors (the “Board”) initially. Directors shall meet the qualifications described in the Articles of Incorporation and Bylaws of the Association.
Section 4, Management of the Association. From date of formation of the Association until the termination of Declarant’s control as provided below, Declarant shall have the right to appoint and remove all members of the Board and all officers of the Association. The period of Declarant’s control of the Association shall terminate upon the first to occur of sixty (60) days after conveyance of seventy-five percent (75%) of the Lots to Owners other than Declarant, two (2) years after the last conveyance of a Lot by Declarant in the ordinary course of business, or two (2) years after any right to add new Lots was last exercised. Declarant may voluntarily surrender the right to appoint and remove officers of the Association and members of the Board before termination of the period of Declarant’s control, but in that event Declarant may require, for the duration of the period of Declarant’s control, that specified actions of the Association or the Board, as described in a recorded instrument executed by Declarant, be approved by Declarant before they become effective. Not later than sixty (60) days after conveyance of twenty-five percent (25%) of the Lots to Owners other than Declarant, at lease one member and not less than twenty-five percent (25%) of the members of the Board will be elected by Owners other than Declarant. Not later than sixty (60) days after the conveyance of fifty percent (50%) of the Lots to Owners other than Declarant, not less than thirty-three and one-third percent (33-1/3%) of the members of the Board will be elected by Owners other than Declarant. Not later than the termination of the period of Declarant’s control as provided above, the Owners (including Declarant) shall elect a Board of at least three (3) members, at least a majority of whom must be Owners other than Declarant or designated representatives of Owners other than Declarant and the Board shall elect the officers, with such Board members and officers to take office upon election. Within sixty (60) days after Owners other than Declarant elect a majority of the Board, Declarant shall deliver to the Association all property of the Owners and the Association held or controlled by Declarant, including, without limitation, those items specified in section 38-33.3-303(9), C.R.S., of the Common Interest Act.
Votes for positions on the Board shall be taken by secret ballot and, upon the request of one or more Owners, a vote on any other matter affecting the Association on which all Owners are entitled to vote shall be by secret ballot. Ballots shall be counted by a neutral third party or by an Owner who is not a candidate, who attends the meeting at which the vote is held, and who is elected at random from a pool of two ore more such Owners. The results of the vote shall be reported without reference to names, addresses, or other identifying information (38-33.3-310).
Section 5, Officers of the Association. The officers of this Association shall be as set forth in the Bylaws of the Association.
Section 6, Board Member and Officers – Powers and Duties – Audit (38-33.3-303).
(a) Except as provided in the declaration, the bylaws, or subsection (d) of this section or any other provisions of this article, the Board may act in all instances on behalf of the Association.
(b) If appointed by the Declarant, in the performance of their duties, the officers and members of the Board are required to exercise the care required of fiduciaries of the Owners.
(c) If not appointed by the Declarant, no member of the Board and no officer shall be liable for actions taken or omissions made in the performance of such member’s duties except for wanton and willful acts or omissions.
(d) The Board may not act on behalf of the Association to amend the declaration, to terminate the Association, or to elect members of the Board or determine the qualifications, powers and duties, or terms of office of Board members, but the Board may fill vacancies in its membership for the unexpired portion of any term.
(e) The books and records of the Association shall be subject to an audit, using generally accepted auditing standards, or a review, using statements on standards for accounting and review services, at least once every two years (2) by a person selected by the Board. Such person need not be a certified public accountant except in the case of an audit.
(1) An audit shall be required under this paragraph only when both of the following conditions are met:
(A) The Association has annual revenues or expenditures of at least two hundred fifty thousand dollars; and
(B) An audit is requested by the Owners of at least one-third (1/3) of the units represented by the Association.
(2) Copies of an audit or review under this paragraph shall be made available upon request to any Owner beginning no later than thirty days (30) after its completion.
Section 7, Voting – Proxies (38-33.3-310).
(a) If only one of the multiple owners of a unit is present at a meeting of the Association, such owner is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the owners, unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.
(b) Votes for positions on the Board shall be taken by secret ballot and, upon the request of one or more Owners, a vote on any other matter affecting the common interest community on which all Owners are entitled to vote shall be by secret ballot. Ballots shall be counted by a neutral third party or by an Owner who is not a candidate, who attends the meeting at which the vote is held, and who is selected at random from a pool of two or more such Owners. The results of the vote shall be reported without reference to names, addresses, or other identifying information.
(c) Votes allocated to a unit may be cast pursuant to a proxy duly executed by an Owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. An Owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the Association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates eleven months (11) after its date, unless it provides otherwise.
(d) Votes allocated to a unit may be cast pursuant to a proxy duly executed by an Owner. A proxy shall not be valid if obtained through fraud or misrepresentation. Unless otherwise provided in the declaration, bylaws, or rules of the Association, appointment of proxies may be made substantially as provided in section 7-127-203, C.R.S.
(e) If a unit is owned by more than one person, each Owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. An Owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the Association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates eleven months (11) after its date, unless it provides otherwise.
(f) The Association is entitled to reject a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s authority to sign for the Owner.
(g) The Association and its officer or agent who accepts or rejects a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation in good faith and in accordance with the standards of this section are not liable in damages for the consequences of the acceptance or rejection.
(h) Any action of the Association based on the acceptance or rejection of a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation under this section is valid unless a court of competent jurisdiction determines otherwise.
(i) If the declaration requires that votes on specified matters affecting the Association be cast by lessees rather than Owners of leased units:
(1) The provisions of subsections (a through j) of this section apply to lessees as if they were Owners;
(2) Owners who have leased their units to other persons may not cast votes on those specified matters; and
(3) Lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were Owners.
(4) Owners must also be given notice, in the manner provided in section 38-33.3-308, of all meetings at which lessees are entitled to vote.
(j) No votes allocated to a unit owned by the Association may be cast.
Section 8, Board – Conflict of Interest (38-33.3-310.5).
(1) If any contract, decision, or other action taken by or on behalf of the Board would financially benefit any member of the Board or any person who is a parent, grandparent, spouse, child, or sibling of a member of the Board or a parent or spouse of any of those persons, that member of the Board shall declare a conflict of interest for that issue. The member shall declare the conflict in an open meeting, prior to any discussion or action on that issue. After making such declaration, the member may participate in the discussion but shall not vote on that issue.
(2) Any contract entered into in violation of this section is void and unenforceable.
(3) This section shall not be construed to invalidate any provision of the declaration, bylaws, or other documents that more strictly defines conflicts of interest or contains further limits on the participation of Board members who may have conflicts of interest.
Section 9, Association Records. All financial and other records shall be made reasonably available for examination by any Owner and such owner’s authorized agents.
(1) (a) The Association shall keep financial records sufficiently detailed to enable the Association to comply with section 38-33.3-316 (8) concerning statements of unpaid assessments.
(b) The Association shall keep as permanent records minutes of all meetings of Owners and the Board, a record of all actions taken by the Owners or Board by written ballot or written consent in lieu of a meeting, a record of all actions taken by a committee of the Board in place of the Board on behalf of the Association, and a record of all waivers of notices of meetings of Owners and of the Board or any committee of the Board.
(c) The Association or its agent shall maintain a record of Owners in a form that permits preparation of a list of the names and addresses of all Owners, showing the number of votes each Owner is entitled to vote.
(d) The Association shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time.
(2) All financial and other records shall be made reasonably available for examination and copying by any Owner and such owner’s authorized agents.
(3) The Association may charge a fee, not to exceed the Association’s actual cost per page, for copies of Association records.
(4) As used in this section, “reasonably available” means available during normal business hours, upon notice of five (5) business days, to the extent that:
(a) The request is made in good faith and for a proper purpose;
(b) The request describes with reasonable particularity the records sought and the purpose of the request; and
(c) The records are relevant to the purpose of the request.
(5) In addition to the records specified in subsection (1) of this section, the Association shall keep a copy of each of the following records at its principal office:
(a) Its articles of incorporation, if it is a corporation, or the corresponding organizational documents if it is another form of entity;
(b) The declaration;
(c) The covenants;
(d) Its bylaws;
(e) Resolutions adopted by its Board relating to the characteristics, qualifications, rights, limitations, and obligations of Owners or any class or category of Owners;
(f) The minutes of all Owners’ meetings, and records of all action taken by Owners without a meeting, for the past three (3) years;
(g) All written communications within the past three (3) years to Owners generally as Owners;
(h) A list of the names and business or home addresses of its current directors and officers;
(i) Its most recent annual report, if any; and
(j) All financial audits or reviews conducted pursuant to section 38-33.3-303 (4) (b) during the immediately preceding three (3) years.
(6) This section shall not be construed to affect:
(a) The right of a Owner to inspect records:
(I) Under corporation statutes governing the inspection of lists of shareholders or members prior to an annual meeting; or
(II) If the Owner is in litigation with the Association, to the same extent as any other litigant; or
(b) The power of a court, independently of this article, to compel the production of Association records for examination on proof by an Owner of proper purpose.
(7) This section shall not be construed to invalidate any provision of the declaration, bylaws, the corporate law under which the Association is organized, or other documents that more broadly defines records of the Association that are subject to inspection and copying by Owners, or that grants Owners freer access to such records.
ARTICLE IV. COVENANT AND MAINTENANCE ASSESSMENTS
Section 1, Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot, including Declarant, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges, (2) special assessments, and (3) reconstruction assessments, such assessments to be established and collected as hereinafter provided. The annual, special and reconstruction assessments, together with interest, late charges, costs and reasonable attorneys’ fees, shall be a charge on the land and shall be a continuing lien upon the Lot against which such assessment is made. The obligation for such payments by each Owner to the Association is an independent covenant, with all amounts due from time to time payable in full without notice (except as otherwise expressly provided in this Declaration) on demand, and without setoff or deduction. The lien may be enforced by foreclosure of the defaulting Owner’s Lot by the Association in like manner as a mortgage on real property. In any such foreclosure, the Owner shall be required to pay the costs and expenses of such proceedings, including attorneys’ fees. The Board or managing agent of the Association may prepare a written notice setting for the amount of such unpaid indebtedness, the name of the Owner of the Lot and a description of the Association and may be recorded in the Office of the Clerk and Recorder of the County of Mesa, Colorado. The lien for each unpaid assessment attaches to each Lot at the beginning of each assessment period and shall continue to be a lien against such Lot until paid. The costs and expenses for filing any notice of lien shall be added to the assessment for the Lot against which it is filed and collected as part and parcel thereof. Each assessment, together with interest, late charges, costs and reasonable attorneys’ fees, shall also be the personal obligation of the person who was the Owner of such Lot at the time when the asessment became due. The personal obligation for deliquent assessments shall not pass from them. The Association’s lien on a Lot for assessment shall be superior to any homestead exemption now or hereafter provided by the laws of the State of Colorado or any excemption now or hereafter provided by the laws of the United States. The acceptance of a deed to land subject to this Declaration shall constitute a waiver of the homestead and any other exemption as against said assessment lien.
Section 2, Purpose of Assessments. The Assessments levied by the Association shall be used to promote the health, safety and welfare of the residents of the Property and, to the extent not performed by any applicable governmental entity, for the maintenance and insurance of the Common Area, including, but not limited to, entryways, parkways, greenbelts, parks, common landscaped areas and irrigation water system, and all other purposes stated in this Declaration.
Section 3, Annual Assessments. Until the Association makes a common expenses assessment, the Declarant shall pay all common expenses. After any assessment has been made by the Association, assessment shall be made no less frequently than annually and shall be based upon a budget adopted no less frequently than annually by the Association. The amount of the assessment shall be determined by the Board after consideration of rejected maintenance costs and other financial needs of the Association. Within ninety (90) days after adoption of any proposed budget for the Association, the Board shall mail, by ordinary first-class mail, or otherwise deliver a summary of the budget to all Owners and shall set a date for a meeting of the Owners to consider radification of the budget not less than fourteen (14) nor less than sixty (60) days after mailing or other delivery of the summary. Unless at that meeting a majority of all Owners reject the budget, the budget shall be ratified, whether or not a quorum of members is present. In the event, 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. The Association shall maintain an adequate reserve fund out of the annual assessments for the repair and replacement of those elements of the Common Area that must be repaired and replaced on a periodic basis.
Section 4, Special Assessments. In addition to the annual and reconstruction assessments authorized in this Article IV, the Association may levy, in the Association fiscal year, a special assessment applicable to that year only, for the purpose of defraying in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, or for the funding of any operating defiicit incurred by the Association. Any such assessment shall have the assent of two-thirds (2/3) of the votes of the Members who are voting in person or by at a meeting duly called for this purpose and shall be set equally against each Lot.
Section 5, Reconstruction Assessments. In addition to the annual and special assessments authorized in this Article IV, the Association may levy a reconstruction assessment for the purpose of repair or reconstruction of damaged or destroyed improvements. All such reconstruction assessments shall be equal to the net amount of the cost of repair or reconstruction of such improvements and shall be calculated by subtracting from the total cost of repair or reconstruction the sum of the insurance proceeds awarded for the damage or destruction thereof, and payable as provided by resolution of the Board, but not sooner than thirty (30) days after written notice hereof; provided, however, that, in appropriate circumstances, the Association may proceed direclty against any Owner pursuant to Article VIII, Section 3 hereof for any such amount.
Section 6, Rate of Assessment. Annual and special assessments shall be fixed at a uniform rate for all Lots and shall be allocated to each Lot on the basis of a fractional share per Lot, the numerator of which fraction shall be one and the denominator of which shall be the number of Lots contained within the Property, and shall be in an amount sufficient to meet the expected needs of the Association.
Section 7, Date of Commencement of Annual Assessments. The initial assessment shall be commenced on the first day of the month following ratification of the assessment pursuant to Section 3 of this Article IV. The annual assessment shall be due and payable with such frequency and on such dates as determined by the Board, but no more frequently than monthly, provided that the first annual assessment shall be adjusted according to the number of months in the first Association fiscal year.
Section 8, Effect of Nonpayment of Assessments; Remedies of the Association. Any assessment not paid within ten (10) days after the due date thereof shall bear interest from the due date at the rate of eighteen percent (18%) per annum, or at such lesser rate as may be set from time to time by the Association, and the Association may also assess a monthly late charge thereon. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against such Owner’s Lot, and in the event a judgement is to be fixed by the court, together with the costs of the action. No Owner may waive or otherwise escape liability for the assessments provided for herein by nonuse of the Common Area or abandonment of his Lot.
Section 9, Working Capital Fund. The Association or Declarant shall require the first Owner of any Lot to make a nonrefundable payment to the Association in an amount of One Hundred Dollar ($100.00), all of which shall be held by the Association and maintained in a segregated account for the use and benefit of the Association, including, but not limited to, the use to meet unforeseen expenses. Such payment shall not be deemed to be prepayment of any assessment but shall be deemed a payment to the working capital fund and shall not relieve an Owner from making the regular payment of assessments as the same become due. The payment to the working capital fund shall be due on the date of the commencement of the general assessment. Upon the transfer of his Lot, an Owner shall be entitled to a credit from his transferee (but not from the Association) for the aforesaid payment to working capital fund.
Section 10, Lien for Assessments.
(a) Under the Common Interest Act, the Association has a statutory lien on a Lot for any assessments levied against that Lot and for fines imposed against its Owner for the time each assessment or fine becomes due. In addition, fees, charges, late charges, attorneys’ fees, fines and interest charged pursuant to this Declaration or the Common Interest Act are enforceable as assessments. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment thereof becomes due.
(b) The statutory lien for assessments is prior to all other liens and encumbrances on a Lot except: (i) liens and encumbrances recorded before the recordation of this Declaration; (ii) a lien of a First Mortgage which was recorded before the date on which the assessment sought to be enforced became delinquent; and (iii) liens for real estate taxes and other governmental assessments or charges against the Lot. Notwithstanding the foregoing, the statutory lien for assessments is also prior to the lien of a first mortgage to the extent of an amount equal to the assessments based on a periodic budget adopted by the Association which would have become due, in the absence of any acceleration, during the six (6) months immediately preceding institution by either the Association or any party holding a lien senior to any part of the Association lien created under this section of an action or a nonjudicial foreclosure either to enforce or to extinguish the lien.
(c) The recording of this Declaration constitutes record notice and perfection of the statutory lien. No further recordation of any claim of lien or assessment is required; however, a claim may be recorded at the Association’s option, in which even costs and attorney’s fees incurred in connection with the preparation of filing of such claim shall be assessed against the Owner’s Lot as a default assessment.
Section 11, Alternative Dispute Resolution (38-33.3-124). Legislative declaration – alternative dispute resolution encouraged.
(1) The general assembly finds and declares that the cost, complexity, and delay inherent in court proceedings make litigation a particularly inefficient means of resolving neighborhood disputes. Therefore, the Association is encouraged to adopt protocols that make use of mediation or arbitration as alternatives to, or preconditions upon, the filing of a complaint between an Owner and Association in situations that do not involve an imminent threat to the peace, health, or safety of the community.
(2) (a) Any controversy between an Association and a Owner arising out of the provisions of this article may be submitted to mediation by either party to the controversy prior to the commencement of any legal proceeding.
(b) The mediation agreement, if one is reached, may be presented to the court as a stipulation. Either party to the mediation may terminate the mediation process without prejudice.
(c) If either party subsequently violates the stipulation, the other party may apply immediately to the court for relief.
(3) The declaration, bylaws, or rules of the Association may specify situations in which disputes shall be resolved by binding arbitration under the “Uniform Arbitration Act”, part 2 of article 22 of title 13, C.R.S.
Section 12, Mediation – when required (38-33.3-124).
(1) Any controversy between an Association and an Owner arising out of the provisions of this article may be submitted to mediation by either party to the controversy prior to the commencement of any legal proceeding.
(2) The mediation agreement, if one is reached, may be presented to the court as a stipulation. Either party to the mediation may terminate the mediation process without prejudice.
(3) If either party subsequently violates the stipulation, the other party may apply immediately to the court for relief.
ARTICLE V. ARCHITECTURAL CONTROL COMMITTEE
Section 1, Composition of Committee. The Architectural Control Committee shall consist of three (3) or more persons appointed by the Board of the Association; provided, however, that until Declarant has conveyed all Lots to Owners other than the Declarant, Declarant shall appoint the Architectural Control Committee. A majority of the Committee may, from time to time, designate a representative to act for it. The power of the Declarant to “appoint,” as provided herein, shall include without limitation the power to: initially constitute the membership of the Architectural Control Committee, appoint members(s) to the Architectural Control Committee upon the occurrence of any vacancy therein, for whatever reason remove any member of the Architectural Control Committee, with or without cause, at any time, and appoint the successor thereof; and each such appointment may be made for such term(s) of office, subject to the aforesaid power of removal, as may be set from time to time in the discretion of the Declarant. All improvements within the Property constructed by Declarant during the period in which it appoints the Architectural Control Committee shall be deemed approved by the Committee without the issuance of any writing evidencing such approval.
Section 2, Review by Committee. No structure or any attachment to an existing structure, landscaping, any building, fences, walls, canopies, awnings, roofs, exterior lighting facilities, athletic facility or other similar improvements or attachments, shall be constructed, erected, placed or installed upon the Property and no alternation of the material or appearance (including color) of the exterior of a residence or other structure shall be made, and no change in the final grade of any Lot shall be performed, unless copies of plans and specifications therefore (said plans and specification to show exterior design, height, colors, materials, location of the structure or addition to the structure, as well as such other materials and information as may be required by the Committee) shall have been first submitted to and approved in writing by the Architectural Control Committee. The plans and specifications so submitted shall comply in all respects with the building and zoning regulations of the City of Grand Junction and Mesa County Clerk and Recorders records at Book 1318, Page 22 as further amended. The Architectural Control Committee shall exercise its reasonable judgment to the end that all attachments, improvements, construction, landscaping and alterations to residences, other structures and property, within the Property, conform to and harmonize with the existing surroundings, residences, landscaping and structures. In its review of such plans, specifications and other materials and information, the processing fee for the actual expenses incurred by the Committee in the review and approval process. Such amounts, if any, may be levied as part of the common expense assessment against such, shall be subject to the Association’s lien for assessments and subject to all other rights of the Association for the collection thereof, as more fully provided in this Declaration. Notwithstanding the foregoing, no Owner shall have the right to materially alter or modify the original fencing, landscaping or grading installed by Declarant within the Common Area; provided, however, that the foregoing prohibition shall not prevent the repair or maintenance of the same.
Section 3, Procedures. The Architectural Control Committee shall approve or disapprove all requests for architectural control approval within thirty (30) days after the complete submission of copies of all plans, specifications and other materials which the Committee may require in conjunction therewith. In the event that the Architectural Control Committee fails to approve or disapprove any request within thirty (30) days after the complete submission of all plans, specifications, materials and other information with respect thereto, approval shall not be required and this Article V shall be deemed to have been fully complied with.
Section 4, Vote and Appeal. A majority vote of the Architectural Control Committee is required to approve a request for architectural approval pursuant to this Article V. An Owner may appeal the decision of the Architectural Control Committee to the Board if the Board is composed of different members than the Architectural Control Committee, and, in such event, the decision of the Board shall be final.
Section 5, Records. The Architectural Control Committee shall maintain written records of all applications submitted to it and all actions taken by it thereon, and such records shall be available to Members for inspection at reasonable hours of the business day.
Section 6, Liability. The Architectural Control Committee and the members thereof shall not be liable in damages to any person submitting requests for approval or to any Owner, by reason of any action, failure to act, approval, disapproval or failure to approve or disapprove in regard to any matter within its jurisdiction hereunder.
Section 7, Variance. The Architectural Control Committee may grant reasonable variances or adjustments from any conditions and restrictions imposed by this Article V or Article IX hereof, in order to overcome practical difficulties and prevent unnecessary hardships arising by reason of the application of the conditions and restrictions contained in this Article V or Article IX hereof. Such variances or adjustments shall be granted only in case the granting thereof shall not be materially detrimental or injurious to the other property or improvements in the neighborhood and shall not militate against the general intent and purpose hereof.
Section 8, Waivers. The approval or consent of the Architectural Control Committee to any application for architectural approval shall not be deemed to constitute a waiver of any right to withhold or deny approval or consent by the Committee as to any application or other matters whatsoever subsequently or additionally submitted for approval or consent hereunder.
ARTICLE VI. INSURANCE
Section 1, Insurance on Common Area. To the extent not maintained by the applicable governmental entity, the Association shall maintain insurance covering all insurable improvements located or constructed upon the Common Area. The Association shall maintain the following types of insurance, to the extent that such insurance is reasonably available, considering the availability, cost and risk coverage provided by such insurance, and the cost of the specific insurance requirements specified in this Article VI, the Association may also consider in determining the types and amount of insurance it needs to obtain the then existing requirements of any of the Agencies.
(a) A policy of property insurance covering all insurable improvements, if any, located on the Common Area, except for land, foundations, excavations and other matters normally excluded from coverage, in an amount no less than the full insurable replacement cost of the Common Area less deductibles. Further, said policy shall contain a “Replacement Cost Endorsement” and an “Agreed Amount Endorsement.” Such insurance as maintained by the Association pursuant to this subsection shall afford protection against at least the following:
(i) loss or damage by fire and other perils normally covered by the standard extended coverage endorsement; and
(ii) such other risks as shall customarily be covered with respect to projects similar in construction, location and use.
(b) A comprehensive policy of public liability insurance covering all of the Common Area, insuring the Association in an amount not less than $1,000,000.00 covering bodily injury, including death to persons, personal injury and property damage liability arising out of a single occurrence.
(c) A policy providing comprehensive fidelity coverage or fidelity bonds to protect against dishonest acts on the part of officers, directors, trustees and employees of the Association and all others who handle or are responsible for handling funds of the Association, in an amount at least equal to the estimated maximum of funds, including maintenance reserves in the custody of the Association at any given time; provided, however, that such fidelity coverage or fidelity bonds shall not be in an amount less than three (3) months aggregate assessments on all Lots, plus such reserve funds. Such fidelity coverage or bonds shall meet the following requirements:
(i) all such fidelity coverage or bonds shall name the Association an obligee; and
(ii) such fidelity coverage or bonds shall contain waivers of any defense based upon the exclusion of persons who serve without compensation from any definition of “employee” or similar expression.
In the event the Association has delegated some or all of its responsibility for the handling of funds to a managing agent, the Association may require the managing agent to purchase, at its own expense, a policy of fidelity insurance or bonds which fully complies with the provisions of this subparagraph (c).
(d) If the Common Area, or any portion thereof, is located within an area identified by the Federal Emergency Management Agency as having special flood hazards, and flood insurance coverage on the Common Area has been made available under the National Flood Insurance Program, then such a policy of flood insurance on the Common Area in an amount at least equal to the less of:
(i) the maximum coverage available under the National Flood Insurance Program for all buildings and other insurable property located within a designated flood hazard area; or
(ii) one hundred percent (100%) of current replacement cost of all buildings and other insurable property located within a designated flood hazard area.
(e) In addition, the Association may obtain insurance against such other risks of a similar or dissimilar nature as it shall deem appropriate, to the extent that such coverage is reasonably available, including, but not limited to, personal liability insurance to protect directors and officers of the Association from personal liability in relation to their duties and responsibilities in acting as directors and officers on behalf of the Association.
Section 2, General Provisions of Insurance Policies. All policies of insurance carried by the Association shall be carried in blanket policy from naming the Association as insured, or its designee as trustee and attorney-in-fact for all Owners, and each Owner shall be an insured person under such policies with respect to liability arising out of any Owner’s membership in the Association. The Association’s policies shall contain a standard noncontributory first Mortgagee’s clause in favor of each First Mortgagee and a provision that it cannot be canceled or materially altered by either the insured and each First Mortgagee, insurer or guarantor of a First Mortgage. The Association or any Owner, as applicable, shall furnish a certified copy or duplicate original of the policy, or renewal thereof, which is in the name of such Owner or the Association, with proof of premium payment and a certificate identifying the interest of the Owner in question or the Association, to any party in interest, including First Mortgagees, upon request. Any such Owner’s policy shall also contain waivers of subrogation. All policies shall contain waivers of any defense based on invalidity arising from any acts or neglect of any Owner where such Owner is not under the control of the Association.
Section 3, Deductibles. No policy of insurance of which the Association or its designee is the beneficiary shall include a deductible clause in an amount greater than the greater of One Thousand Dollars ($1,000.00) or one percent (1%) of the face amount of the policy. Any loss falling within the deductible portion of such policy shall be borne by the person or entity who is responsible for the repair, and maintenance of the property which is damaged or destroyed. In the event of a joint duty of repair and maintenance of the damaged or destroyed property, then the deductible shall be borne by the Association. Notwithstanding the foregoing, after notice and hearing, the Association may determine that a loss, either in the form of a deductible to be paid by the Association or an uninsured loss, resulted from the act or negligence of an Owner. Upon said determination by the Association, any such loss or portion thereof may be assessed to the Owner in question and the Association may collect the amount from said Owner in the same manner as any annual assessment; provided, however, that any such determination which assigns liability to any Owner pursuant to the terms of this Section 3 may be appealed by said Owner to a court of law.
Section 4, Insurance Trustee. The Association may authorize a representative to act for it, including any trustee or successor thereto, who shall have exclusive authority to negotiate losses under any policy providing property or liability insurance. Such insurance trustee shall act as attorney-in-fact for the purpose of purchasing and maintaining insurance, including the collection and appropriate disposition of the proceeds thereof, the negotiation of losses and execution of releases of liability, the execution of all documents, and the performance of all other acts necessary to accomplish such purpose. Said party may also receive, hold or otherwise properly dispose of any proceeds of insurance in trust for Owners and their First Mortgagees as their interest may appear.
Section 5, Association Insurance as Primary Coverage. If at the time of any loss under any policy which is in the name of the Association, there is other insurance in the name of any Owner and such Owner’s policy covers the same property or loss, or any portion thereof, which is covered by such Association policy, such Association policy shall be primary insurance not contributing with any of such other insurance. An Owner shall be liable to the Association for the amount of any dimunition of insurance proceeds to the Association as a result of policies of insurance of an Owner, and the Association may collect the amount from said Owner in the same manner as any annual assessment. Any such Owner’s policy shall also contain waivers of subrogation.
Section 6, Acceptable Insurance Companies. Each hazard insurance policy purchased by the Association must be written by a hazard insurance carrier which has a current rating by Best’s Insurance Reports of B/VI or better, or a financial rating of Class V provided it has a general policy holder’s rating of at least A, and is authorized by law to transact business within the State of Colorado. The Association shall not obtain any policy where (a) under the terms of the insurance company’s charter, bylaws or policy contributions or assessments may be made against the mortgagor or mortgagee’s designee, or (b) under the terms of the carrier’s charter, bylaws or policy loss payments are contingent upon action by the carrier’s Board of Directors, policy holders or members, or (c) the policy includes any limiting clauses (other than insurance conditions) which could prevent mortgagees or any Owner from collecting insurance proceeds.
Section 7, Insurance to be Maintained by Owners. Insurance coverage on the structures located upon a Lot, as well as the furnishings and other items of personal property belong to an Owner shall be the responsibility of such Owner. Owners shall also be responsible for obtaining such policies of public liability insurance, and title insurance related to any sale of a Lot other than the purchase by the initial Owner from the Declarant.
Section 8, Annual Review of Insurance Policies. All insurance policies carried by the Association shall be reviewed at least annually by the Board to ascertain that the coverage provided by such policies adequately covers those risks insured by the Association.
ARTICLE VII. DAMAGE OR DESTRUCTION OF COMMON AREA
In the event of damage or destruction to any improvement installed by the Association within the Common Area due to fire or other adversity or disaster, the insurance proceeds, if sufficient to reconstruct or repair the damage, shall be applied by the Association to such reconstruction and repair. If the insurance proceeds with respect to such Common Area damage or destruction are insufficient to repair and reconstruct the damaged or destroyed Common Area, the Association may levy a reconstruction assessment in the aggregate amount of such deficiency pursuant to Article IV, Section 5 hereof and shall proceed to make such repairs or reconstruction, unless:
(a) the planned community is terminated;
(b) repair or replacement would be illegal under any state or local statute or ordinance governing health or safety;
(c) eighty percent (80%) of the Owners, including every Owner of a Lot that will not be built, vote not to rebuild; or
(d) prior to that conveyance of any Lot to a person other than Declarant, the holder of a deed of trust or mortgage on the damaged portion of the Common Area rightfully demands all or a substantial part of the insurance proceeds.
No distributions of insurance proceeds shall be made unless made jointly payable to the Owners and First Mortgagees of their respective Lots, if any. The reconstruction assessment provided for herein shall be a debt of each Owner and a lien on his Lot and the improvements thereon, and may be enforced and collected in the same manner as any assessment lien provided for in this Declaration.
ARTICLE VIII. MAINTENANCE OBLIGATION
Section 1, General. Except as otherwise provided herein, the maintenance and repair of each Lot, including, but not limited to, landscaping, the interior and exterior of the residence, improvements constructed thereon and the interior of any fence on the common boundary line of any of the Common Areas and a Lot shall be the responsibility of the Owner(s) thereof. It shall be the duty and obligation of the Owner of each Lot to landscape the front yard of his or her Lot within ninety (90) days from issuance of a Certificate of Occupancy and the backyard of his or her Lot within one (1) year from issuance of a Certificate of Occupancy. The front yard landscaping shall include an automatic sprinkler system, at least two (2) trees, one of which shall be a “street tree” at least six (6) feet in height as defined by Declarant for each Lot, and eight (8) shrubs. The time limits contained herein may be extended in writing by the Architectural Control Committee pursuant to the provisions of Article V hereof. The Association shall have the right, but not the obligation, to undertake and complete any maintenance and repair of the exterior of any residence, the installation and maintenance of landscaping or the maintenance of any other improvement upon any Owner’s Lot in the event such Owner fails or refuses to perform such maintenance and repair or installation in accordance with the provisions of this Section 1. In the event the Association undertakes such maintenance, repair or installation, any costs, expenses and fees incurred by the Association for such maintenance, repair or installation shall be added to and become a part of the assessment to which such Owner’s Lot is subject and shall become a lien against such Owner’s Lot as provided in Article IV of this Declaration. Prior to undertaking any repair, maintenance or installation pursuant to this Section 1, the Association shall give thirty (30) days written notice to such Owner of its intent to undertake such maintenance, repair or installation if not undertaken and completed by such Owner within the thirty (30) days.
During a period of water use restrictions declared by the jurisdiction in which the Association is located, in which case the Owner shall comply with any watering restrictions imposed by the water provider for the common interest community;
(a) Enforcement shall be consistent within the community and not arbitary or capricious; and
(b) Once the drought emergency is lifted, the Owner shall be allowed a reasonable and practical opportunity, as defined by the Associations Board, with consideration of applicable local growing seasons or practical limitations, to reseed and revive turf grass before being required to replace it with new sod., the Association must suspend any enforcement against owners whose landscaping dies a give a “reasonable and practical” opportunity to revive dying grass (37-60-126).
Section 2, Maintenance of Common Area. Subsequent to the installation of improvements to the Common Area by Declarant, and to the extent not performed by the applicable governmental entity of any Owner, the Association shall be responsible for the landscaping and maintenance of the Common Area, including, but not limited to, repair of signage, fencing, masonry columns, irrigation equipment, lighting and electrical fixtures and equipment and plantings. No Owner shall, in whole or in part, change the landscaping, grade or fencing or in any way change the retaining wall on any portion of the Common Area.
Section 3, Owner’s Negligence. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the need for maintenance or repair of the Common Area is caused by the willful or negligence act or omission of any Owner, or by the willful or negligent act or omission of any member of such Owner’s family or by a guest or invitee of such Owner, the cost of such repair or maintenance, repair or reconstruction shall be added to and become part of the assessment to which such Owner’s Lot is subject and shall become a lien against such Owner’s Lot as provided in Article IV of this Declaration. A determination of the negligence or willful act or omission of any Owner or any member of an Owner’s family or a guest or invitee of any Owner, and the amount of Owner’s liability therefor, shall be determined by the Association at a hearing after notice to the Owner, provided that any such determination which assigns liability to any Owner pursuant to the terms of this Section 3 may be appealed by said Owner to a court of law.
ARTICLE IX. RESTRICTIONS
Section 1, General Plan. It is the intention of the Declarant to establish and impose a general plan for the improvement, development, use and occupancy of the Property, in order to enhance the value, desirability and attractiveness of the Property and to promote the sale thereof.
Section 2, Restrictions Imposed. The Declarant hereby declares that all of the property shall be held and shall henceforth be sold, conveyed, used, improved, occupied, owned, resided upon and hypothecated, subject to the following provisions, conditions, limitations, restrictions, agreements and covenants, as well as those contained elsewhere in this Declaration.
Section 3, Use of Common Area.
(a) No use shall be made of the Common Area which will in any manner violate the statutes, rules or regulations of any governmental authority having jurisdiction over the Common Area.
(b) No Owner shall engage in any activity which will temporarily or permanently deny free access to any part of the Common Area to all Members, nor shall any Owner place any structure or fence, except those installed by Declarant, whatsoever upon the Common Area.
(c) The use of the Common Area shall be subject to such rules and regulations as may be adopted from time to time by the Board.
Section 4, Residential Use. Subject to Section 5 of this Article IX, Lots shall be used for residential purposes only, including all ancillary uses permitted by applicable zoning ordinances.
Section 5, Use. Notwithstanding anything to the contrary contained in this Declaration, it shall be expressly permissible and proper for Declarant, its employees, agents, contractors and designees to perform such activities, and to maintain upon portions of the Property designated by Declarant such facilities or other improvements reasonably necessary or incidental to the construction and sale of Lots and development of the Property. Without limiting the generality of the foregoing, Declarant may maintain business offices, storage areas, construction yards and equipment and trailers, signs, up to thirteen (13) model units to be located on a Lot owned by Declarant or Declarant’s designee, up to four (4) sales offices and two (2) management offices, which shall belocated on a Lot owned by Declarant or Declarant’s designee, and parking facilities and reasonable lighting facilities related thereto. Sales offices, model units and management offices may be relocated from time to time to other Lots within the Property and shall be of a size compatible with the development of the Property. At such time as Declarant ceases to be a Owner, Declarant shall remove any temporary structures used for sale offices, model units or management offices.
Section 6, Household Pets. No animals, livestock, reptiles, poultry or insects, or any kind, shall be raised, bred, kept or boarded in or on the Property; provided, however, that the Owners of each Lot may keep a reasonable number of dogs, cats, fish or other domestic animals which are bona fide household pets, so long as such pet(s) are not kept for any commercial purpose and are not kept in such number or in such manner as to create a nuisance to any resident(s) of the Property. An Owner’s right to keep household pets shall be coupled with the responsibility to pay for any costs to the Association for any damages caused by such Owner’s pet(s).
Section 7, Lots to be Maintained. Except during any period of construction or reconstruction, each Lot at all times shall be kept in a clean, slightly and wholesome condition. No trash, litter, junk, boxed, containers, bottles, caps, implements, machinery, lumber or other building materials shall be permitted to remain exposed upon any Lot so that the same are visible from any neighborhood Lot, the Common Area or any street.
Section 8, Temporary Structures. Except as hereinafter provided, no structure of a temporary character, including but not limited to, a house trailer, tent, shack or outbuilding shall be placed or erected upon any Lot, and no residence shall be occupied in any manner at any time prior to its being fully completed, nor shall any residence when completed be in any manner occupied until made to comply with all requirements, conditions and restrictions herein set forth; provided, however, that during the actual construction, alteration, repair or remodeling of a residence, necessary temporary structures for storage of materials may be erected and maintained by the person doing such work. The work of constructing, altering or remodeling any residence shall be prosecuted diligently from the commencement thereof until the completion thereof.
Section 9, Miscellaneous Structures.
(a) No advertising or signs of any character, except political signs as permitted below, shall be erected, placed, permitted or maintained on any Lot other than a name place of the occupant and a street number and except for a “For Sale” or “For Rent” sign not to exceed five (5) square feet; notwithstanding the foregoing, signs, advertising, or billboards used by the Declarant or its designees in connection with the sale or rental of Lots, or otherwise in connection with any development of the Property, shall be permissible provided that such use by the Declarant or its designees shall not unreasonably interfere with any Owner’s use and enjoyment of his Lot, the Common Area or with such Owner’s ingress or egress from a public way to the Common Area or his Lot. One political sign per political office or ballot issue that is contested in a pending election, with the maximum dimensions of thirty-six (36) inches by forty-eight (48) inches, on an Owner’s property may be displayed no earlier than forty-five (45) days before the day of an election and no later than seven (7) days after an election day (38-33.3-106.5).
(b) Except as may otherwise be permitted by the Architectural Control Committee, all antennae, including satellite receivers, shall be installed inside any residence.
(c) No clothesline, dog runs, drying yards, service yards, wood piles or storage areas shall be so located on any Lots as to be visible from a street.
(d) Any accessory building shall be a maximum of six (6) feet in height and shall be of materials and color approved by the Architectural Control Committee.
Section 10, Vehicular Parking, Storage and Repairs.
(a) No house trailer, camping trailer, boat trailer, hauling trailer, running gear, boat or accessories thereto, motor-driven cycle, truck (larger than one ton), self-contained motorized recreational vehicle, or other type of recreational vehicle or equipment, may be parked or stored on or within any Lot unless such parking or storage is done wholly within the enclosed garage located on a Lot or is otherwise screened so as to not negatively impact views from the street, from the adjoining Lot Owner or from any Common Area adjoining such Lot. Any such vehicle may be parked as a temporary expedience for loading, delivery or emergency. This restriction, however, shall not restrict trucks or other commercial vehicles within the Property which are necessary for construction or for the maintenance of the Common Area, Lots or any improvements located thereon. This restriction, however, shall not restrict the parking of a motor vehicle by an Owner on a street, driveway, or guest parking area in the common interest community if the vehicle is required to be available at designated periods at the Owner’s residence as a condition of the Owner’s employment and all of the following criteria are met:
(1) The vehicle has a gross vehicle weight rating of ten thousand (10,000) pounds or less;
(2) The Owner is a bona fide member of a volunteer fire department or is employed by an emergency service provider, as defined in section 29-11-101 (1.6), C.R.S.;
(3) The vehicle bears an official emblem or other visible designation of the emergency service provider; and
(4) Parking of the vehicle can be accomplished without obstructing emergency access or interfering with the reasonable needs of other Owners to use streets and driveways within the common interest community (38-33.3-106.5).
(b) Except as hereinabove provided, no abandoned or inoperable automobiles or vehicles of any kind shall be stored or parked on or within the Property, unless such abandoned or inoperable vehicles are kept within an enclosed garage. An “abandoned or inoperable vehicle” shall be defined as any automobile, truck, motorcycle, boat, trailer, camper, house trailer, self-contained motorized recreational vehicle, or other similar vehicle, which has not been driven under its own propulsion for a period of two (2) weeks or longer, or which does not have an operable propulsion system installed therein; provided, however, that otherwise permitted vehicles parked by Owners while on vacation or during a period of illness shall not constitute abandoned or inoperable vehicles. In the event the Association shall determine that a vehicle is an abandoned or inoperable vehicle, then a written notice describing said vehicle shall be personnaly delivered to the Owner thereof (if such Owner can be reasonably ascertained) or shall be conspicuously placed upon the vehicle (if the Owner thereof cannot be reasonably ascertained), and if the abandoned or inoperable vehicle is not removed or enclosed within seventy-two (72) hours thereafter, the Association shall have the right to remove the vehicle at the sole expense of the Owner thereof.
(c) No activity such as, but not limited to, maintenance, repair, rebuilding, dismantling, repainting or servicing of any kind of vehicles, trailers or boats, may be performed or conducted on or within the Property, unless it is done within a twenty-four (24) hour time period or within completely enclosed structure(s) which screen the sight and sound of the activity from the street, from adjoining property and the rear of any Lots. The foregoing restrictions shall not be deemed to prevent washing and polishing of any motor vehicle, boat, trailer or motor-driven cycle, together with those activities normally incident and necessary to such washing and polishing.
(d) All garages shall be a minimum of two (2) car and a maximum of three (3) car.
Section 11, Nuisances. No nuisance shall be permitted on or within the Property, nor any use, activity or practice which is the source of annoyance or embarrassment to, or which offends or disturbs, any residents of the Property, or which interferes with the peaceful enjoyment or possession and proper use of the Property, or any portion thereof, by its residents. As used herein, the term “nuisance” shall not include any activities or Declarant or its designees which are reasonably necessary to the development of and construction on the Property; provided, however, that such activities of the Declarant or its designees shall not unreasonably interfere with any Owner’s use and enjoyment of his Lot or the Common Area, or with any Owner’s ingress and egress to or from his Lot and a public way.
Section 12, Lots Not to be Subdivided. Not Lot shall be subdivided, except for the purpose of combining portions with an adjoining Lot, provided that no additional building site is created thereby. No less than one entire Lot, as conveyed, shall be used as a building site.
Section 13, Underground Utility Lines. All electric, television, radio and telephone line installations shall be placed underground, except that during the construction of any residence the contractor or building may install a temporary overhead utility line which shall be promptly removed upon completion of construction.
Section 14, No Hazardous Activities. No activities shall be conducted on the Property or within improvements constructed on or within the Property which are or might be unsafe or hazardous to any person or property.
Section 15, No Annoying Light, Sounds or Odors. No light shall be emitted from any Lot which is unreasonably bright or causes unreasonable glare when viewed from the street, adjacent property or Common Area. No sound shall be emitted from any Lot which is unreasonably loud or annoying and no odor shall be permitted from any Lot which is noxious or offensive to others. The Declarant retains the right, however, to install decorative or commercial lighting on all model units or model complexes.
Section 16, Garbage and Refusal Disposal. No garbage, refuse, rubbish or cuttings shall be deposited on any street, the Common Area or any Lot, unless placed in a suitable container suitably located, solely for the purpose of garbage pickup. All containers shall be removed from the street the same day. All equipment for storage or disposal of such materials shall be kept in a clean and sanitary condition. No garbage or trash cans or receptacles shall be maintained in an exposed or unsightly manner. All trash receptacles shall be screened from view from the street.
Section 17, Leases. The term “lease,” as used herein, shall include any agreement for the leasing or rent of a Lot or any portion thereof, and shall specifically include, without limitation, a month-to-month rental. Any Owner shall have the right to lease his Lot under the following conditions:
(a) All leases shall be in writing;
(b) All leases shall provide ??? the terms of the ??? lessee’s occupancy of the Lot shall be subject in all respects to the provision??? declaration, and the Articles of Incorporation, Bylaws and rules and regulations of the Association, and that any failure by the lessee to comply with any of the aforesaid documents, in any respect, shall ? default under the lease; and
(c) No lease shall be for less than thirty (30) days.
Section 18, Rules and Regulations. Rules and regulations concerning and governing the Property or any portion thereof may be adopted, amended or repealed, from time to time by the Board, and the Board may establish and enforce penalties for the infraction thereof, including without limitation, the levying and collecting of fines for the violation of any of such rules and regulations.
Section 19, Management Agreement and Other Contracts.
(a) The Association may utilize professional management in performing its duties hereunder. Any agreement for professional management of the Association’s business or any contract providing for the services of Declarant shall have a maximum term of three (3) years and shall provide for termination by either party thereto, with or without cause and without payment of a termination fee, upon thirty (30) days’ prior written notice.
(b) Subject to Article IX, Section 19(a) hereof, any contracts, licenses or leases entered into by the Association while the Declarant controls the Association shall provide for termination of either party thereto, with or without cause and without payment of a termination fee, at any time after termination of the Declarant’s control or the Association, upon thirty (30) days’ prior written notice.
(c) Notwithstanding anything to the contrary contained in this Section 19, the Association may enter into contracts, licenses and leases in violation of Section 19(b) hereof upon a waiver of any requirements contained herein by the Federal National Mortgage Association.
Section 20, No Mining or Drilling. No mining, drilling, quarrying, digging or excavating for the purpose of testing for the existence of, or extracting oil, gas, coal or minerals of any kind shall be performed upon or within the Property.
Section 21, Irrigation. The Association shall have, to the extent permitted by the provider of irrigation water, sole and exclusive control of the irrigation system delivering of irrigation water to Lots within the Property. The Association may promulgate and adopt rules and regulations concerning the location, use and conservation of the irrigation water to protect the geologic integrity of the Property and all improvements erected thereon, and the protection of drainage. Such restrictions may include, but are not limited to, restrictions upon the maximum number of square feet permitted in lawn area and the amount of irrigation water permitted to be used on or applied to each Lot over any duration of time chosen by the Association.
Section 22, Drainge. No Lot Owner shall release any contaminant or hazardous material into the subdivision drainage system, nor shall any Lot Owner interfere, obstruct or alter the subdivision drainage system. The Association may, but without obligation, undertake to correct, remediate or clean up any release of contaminants or hazardous materials, or the obstruction or alteration of the subdivision drainage system, and all costs, expenses and fees incurred by the Association therefor shall be added to the annual assessments for the Lot Owner causing the same under Article IV, payable, however, as the Assocation determines to be reasonable.
Section 23, Geotechnical Requirements. All construction of residences and other improvements upon the Lot shall meet the geotechnical requirements of any applicable governmental authority.
ARTICLE X. FIRST MORTGAGES
Section 1, Member and First Mortgagee Approval. Unless it has obtained the prior written consent of at least sixty-seven percent (67%) of the Members and sixty-seven percent (67%) of the First Mortgagees (based upon one vote for each First Mortgage owned), the Association shall not:
(a) by act or omission, waiver or abandon any scheme of architectural control or enforcement thereof, as set forth in this Declaration, regarding the design or maintenance of Lots, improvements thereon or the Common Area;
(b) fail to maintain full current replacement cost fire and extended insurance coverage on the Common Area;
(c) use hazard insurance proceeds for the Common Area property losses for purposes other than to repair, replace or reconstruct such property;
(d) by act or omission seek to abandon, partition, subdivide, encumber, sell or transfer any common property owned, directly or indirectly, by the Association for the benefit of the Owners (excluding the granting of permits, licenses and easements for public utilities, roads or other purposes reasonably necessary or useful for the proper maintenance or operation of the Property or the Association);
(e) change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner;
(f) add or amend any material provisions of this Declaration, the Articles of Incorporation or Bylaws of the Association which establish, provide for, govern or regulate any of the following provided that any First Mortgagee who receives a written request to approve any additions or amendments to any of such documents and who does not deliver or post to the requesting party a negative response within thirty (30) days after receipt of such a request shall be deemed to have approved such request, and provided that such additions or amendments shall not be considered material if they are for the purpose of correcting technical errors or for clarification only, and further provided that this subsection (f) shall not apply to amendments to this Declaration, the Articles of Incorporation or Bylaws of the Association made as a result of destruction, damage or condemnation of the Property or the improvements thereon;
(2) assessments, assessment liens or subordination of such liens;
(3) reserve of maintenance, repair and replacement of those elements of the Common Area which must be maintained, repaired or replaced on a periodic basis;
(4) insurance, including, but not limited to, fidelity bonds;
(5) rights to use of the Common Area;
(6) responsibility for maintenance and repair of any portion of the Property;
(7) expansion or contraction of the Property or the addition, annexation or withdrawal of the Property to or from the Property;
(8) interests in the Common Area;
(9) convertibility of Lots into Common Area or of Common Area into Lots;
(10) leasing of Lots or dwellings constructed thereon;
(11) imposition of any right of first refusal or similar restriction on the right of any Owner to sell, transfer or otherwise convey his Lot;
(12) any provisions which are for the express benefit of First Mortgagees, or insurers or guarantors of First Mortgages;
(g) restore or repair the Common Area, or any portion thereof, including, but not limited to, improvements located thereon, after a partial condemnation or damage due to any insurable hazard, other than substantially in accordance with this Declaration and the most recent plans and specifications for the Common Area and the construction of improvements thereon;
Section 2, Notice of Action. Upon written request to the Association identifying the name and address of the First Mortgagee or insurer or guarantor of the First Mortgage and the residence address of the property which is subject to such First Mortage, each such First Mortgage or insurer or guarantor of such a First Mortage shall be entitled to timely written notice of:
(h) any condemnation loss or casualty loss which affects a material portion of the Property or any Lot subject to a First Mortgage held, insured or guaranteed by such First Mortgagee; insurer or guarantor of a First Mortage;
(i) any delinquency in the payment of assessments or charges owed to the Association by the Owner of the Lot subject to a First Mortgage held, insured or guaranteed by such First Mortgagee, insurer or guarantor, or any default by such Owner in any obligation under the Declaration, Articles of Incorporation or Bylaws of the Association and the Board has actual knowledge of such default, when such delinquency and/or default remains uncured for a period of sixty (60) days;
(j) any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association;
(k) any proposed action which would require the consent of a specified percentage of First Mortgagees as provided in this Article X. In this event, a dated, written notice and a copy of any proposed amendment shall be sent by certified mail to each first mortgagee at its most recent address as shown on the recorded deed of trust or recorded assignment thereof. In addition, the Association shall cause the dated notice, together with information on how to obtain a copy of the proposed amendment, to be printed in full at least twice, on separate occasions at least one week apart, in a newspaper of general circulation in the county in which the common interest community is located. A first mortgagee that does not deliver to the Association a negative response within sixty (60) days after the date of the notice shall be deemed to have approved the proposed amendment (38-33.3-217).
Section 3, Audit. The Association shall provide an audited financial statement for the immediately preceding fiscal year at the cost of the requesting party to any First Mortgagee, insurer or guarantor of a First Mortgage within a reasonable time after written request therefor.
ARTICLE XI. GENERAL PROVISIONS
Section 1, Enforcement. Enforcement of the covenants, conditions, restrictions, easements, reservations, rights-of-way, liens, charges and other provisions contained in this Declaration, the Articles of Incorporation, Bylaws or rules and regulations of the Association, as emended, shall be by any proceeding at law or in equity against any person or persons, including without limitation the Association, violation or attempting to violate any such provision. The Association and any aggrieved Owner shall have the right to institute, maintain and/or prosecute any such proceedings, and the Association shall further have the right to levy and collect fines for the violation of any provision of the aforesaid documents in any action instituted or maintained under this Section, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees incurred pursuant thereto, as well as any and all other sums awarded by the court. Failure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Section 2, Severability. Invalidation of any of the covenants, restrictions or other provisions contained in this Declaration by judgment or court order shall in no way affect or limit any other provisions which shall remain in full force and effect.
Section 3, Easements. Easements for the installation and maintenance of utilities, irrigation and drainage facilities are reserved as shown on the recorded plat of the Property, or any portion thereof, or other duly recorded instrument(s). Within these easements no structure, planting or other material 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 of drainage channels in the easements. Declarant hereby reserves the right to enter upon the Property to correct any flow of water and to establish and reestablish drainage channels.
Section 4, Conflict of Provisions. In case of any conflict between this Declaration, the Articles of Incorporation or Bylaws of the Association, this Declaration shall control. In case of any conflict between the Articles of Incorporation and the Bylaws of the Association, the Articles of Incorporation shall control.
Section 5, Street Lighting. Unless street lighting and the cost thereof is provided by the community in which jurisdiction this subdivision is situated, all Lots shall be subject to and bound to Public Service Company tariffs which are now and may in the future be filed with the Public Utilities Commission of the State of Colorado relating to street lighting in this subdivision, together with rates, rules and regulations therein provided and subject to all future amendments and changes on file with the Public Utilities Commission of the State of Colorado.
Section 6, Declarant’s Development Rights.
(a) Declarant reserves the development right to expand and annex to the Property all or any portion of the real property described on Exhibit A attached hereto and incorporated herein by reference (“Expansion Property”) which is not now included in the Property and to create up to one hundred twenty (120) single-family, condominium, townhouse or patio home Lots or units within the Expansion Property. Declarant shall exercise the development rights reserved hereunder to expand the Property by the annexation of the Expansion Property on or before ten (10) years from the date of recording of the Declaration.
(b) Such expansion shall be accomplished by the filing for record by Declarant in the Office of the Clerk and Recorder of Mesa County, Colorado, one or more supplemental declarations describing those portions of the Expansion Property to be included in the expansion, together with any covenants, conditions, restrictions and easements particular to the property. The expansion may be accomplished in stages by successive supplements or in one supplemental expansion.
(c) In the event of such expansion, the definitions used in this Declaration shall be expanded automatically to encompass and refer to the Property subject to this Declaration as so expanded. For example, “Lot” shall mean the Lots described in Article I, Section 8 above, plus any additional Lots added by a supplemental declaration or Declarations, and reference to this Declaration shall mean this Declaration as supplemented. All conveyances of Lots shall be effective to transfer rights in the Property as expanded. The recordation in the records of Mesa County, Colorado of a supplemental parcel map or maps incident to any expansion shall operate automatically to grant, transfer and convey to the Association any new Common Area added to the Property as the result of such expansion. The allocation for assessments shall be amended pro rata to reflect the increase in the number of Lots added to the Declaration.
(d) The new Lots shall be subject to all the terms and conditions of this Declaration and of any supplemental declaration, upon placing the supplemental parcel map(s) depicting the Expansion Property and supplemental declaration(s) of public record in the real estate records of Mesa County, Colorado.
(e) No Lot Owner or other Member of the Association, or the Association or its Board, officers or agents, shall have any right to object to the exercise of the development rights set forth herein.
Section 7, Duration, Revocation and Amendment.
(a) Each and every provision of this Declaration shall run with and bind the land for the term of twenty (20) years from the date of recording of this Declaration, after which time this Declaration shall be automatically extended for successive periods of ten (10) years each. Except as provided in Article X hereof and in subsections (b) and (c) of this Section 7, this Declaration may be amended during the first twenty (20) year period, and during subsequent extensions thereof, by any instrument approved in writing by not less than sixty-seven percent (67%) of the Members. Such amendment shall be effective when duly recorded in Mesa County, Colorado.
(b) If Declarant shall determine that any amendments to this Declaration or any amendments to the Articles of Incorporation or Bylaws of the Association shall be necessary in order for existing or future mortgages, deeds of trust or other security instruments to be acceptable to any of the Agencies, Declarant shall have and is hereby specifically granted the right and power to make and execute any such amendments without obtaining the approval of any Owners or First Mortgages. Each such amendment of this Declaration or of the Articles of Incorporation or Bylaws shall be made, if at all, by Declarant prior to termination of the Declarant’s control or the Association.
(c) Declarant hereby reserves and is granted the right and power to record technical amendments to this Declaration, Articles of Incorporation or Bylaws of the Association at any time prior to the termination of Declarant’s control or the Association, for the purposes of correcting spelling, grammar, dates, typographical errors or as may otherwise be necessary to clarify the meaning of any provisions of any such document.
Section 8, Rights of Declarant Incident to Construction. An easement is hereby retained by and granted by Declarant, its successors and assigns, for access, ingress and egress over, in, upon, under and across the Common Area, including, but not limited to, the right to store materials thereon and to make such other use thereof as may be reasonably necessary or incidental to Declarant’s or its designees’ construction on the Property; provided, however, that no such rights or easements shall be exercised by Declarant in such a manner as to unreasonably interfere with the occupancy, use, enjoyment or access by any Owner, his family members, guests or invitees to or of that Owner’s Lot. Declarant, for itself and its successors and assigns, hereby retains a right to store construction materials on Lots owned by Declarant and to make such other use thereof as may be reasonably necessary or incidental for the purpose of the completion or improvement of the Property, the performance of Declarant’s obligations hereunder and the sale of the Lots. Any special Declarant rights created or reserved under this Article XI or elsewhere in this Declaration for the benefit of Declarant may be transferred to any person by an instrument describing the rights transferred and recorded in the Officer of the Clerk and Recorder of the County of Mesa, Colorado. The rights of Declarant reserved in this Section 8 shall continue in effect so long as Declarant owns any Lot within the Property. Any rights granted to Declarant under this Declaration shall expire on the date which is ten (10) years from the recording date of this Declaration, unless otherwise provided herein.
Section 9, Easement for Encroachments. If any portion of a structure encroaches upon the Common Area or upon any adjoining Lot, or if any portion of the Common Area encroaches upon any Lot, including any future encroachments arising or resulting from the repair or reconstruction of a structure subsequent to its damage, destruction or condemnation, a valid easement on the surface and for subsurface support below such surface and for the maintenance of same, so long as its stands, shall and does exist.
Section 10, Registration by Owner of Mailing Address. Each Owner shall register his mailing address with the Association, and except for statements and other routine notices, all other notices or demands intended to be served upon an Owner shall be sent by either registered or certified mail, postage prepaid, addressed in the name of the Owner at such registered mailing address. However, if any Owner fails to so notify the Association of a registered address, then any notice or demand may be sent to such Owner at the address of such Owner’s Lot. All notices, demands or other notices intended to be served upon the Board or the Association shall be sent by certified mail, postage prepaid, Post Office Box 1267, Grand Junction, Colorado 81502, until such address is changed by the Association.
Section 11, Public Disclosure (38-33.3-209.4).
(1) The Association shall provide to all Owners, at least once per year, a written notice stating the name of the Association; the name of the Association’s designated agent or management company, if any; and a valid physical address and telephone number for both the Association and the designated agent or management company, if any. The notice shall also include the name of the common interest community, the initial date of recording of the declaration, and the reception number or book and page for the main document that constitutes the declaration. If the Association’s address, designated agent, or management company changes, the Association shall provide all Owners with an amended notice within ninety (90) days after the change.
(2) Within ninety (90) days after assuming control from the Declarant pursuant to section 38-33.3-303 (5), and within ninety (90) days after the end of each fiscal year thereafter, the Association shall make the following information available to Owners upon reasonable notice in accordance with subsection (3) of this section:
(a) The date on which its fiscal year commences;
(b) Its operating budget for the current fiscal year;
(c) A list, by unit type, of the Association’s current assessments, including both regular and special assessments;
(d) Its annual financial statements, including any amounts held in reserve for the fiscal year immediately preceding the current annual disclosure;
(e) The results of any financial audit or review for the fiscal year immediately preceding the current annual disclosure;
(f) A list of all Association insurance policies, including, but not limited to, property, general liability, Association director and officer professional liability, and fidelity policies. Such list shall include the company names, policy limits, policy deductibles, additional named insureds, and expiration dates of the policies listed.
(g) All the Association’s bylaws, articles, and rules and regulations;
(h) The minutes of the Board and member meetings for the fiscal year immediately preceding the current annual disclosure; and
(i) The Association’s responsible governance policies adopted under section 38-33.3-209.5.
(3) It is the intent of this section to allow the Association the widest possible latitude in methods and means of disclosure, while requiring that the information be readily available at no cost to Owners at their convenience. Disclosure shall be accomplished by one of the following means: Posting on an internet web page with accompanying notice of the web address via first-class mail or e-mail; the maintenance of a literature table or binder at the Association’s principal place of business; or mail or personal delivery. The cost of such distribution shall be accounted for as a common expense liability.
Section 12, Sale of Unit.
(1) Disclosure to Buyer (38-35.7-102). Except in the case of a foreclosure sale, the seller of a unit in the Association shall mail or deliver to the purchaser, on or before the title deadline, copies of all of the following in the most current form available:
(a) The bylaws and the rules of the Association;
(b) The declaration;
(c) The covenants;
(d) Any party wall agreements;
(e) Minutes of the most recent annual Owners’ meeting and of any Board meetings that occurred within the six (6) months immediately preceding the title deadline;
(f) The Association’s operating budget;
(g) The Association’s annual income and expenditures statement; and
(h) The Association’s annual balance sheet.
(2) The Association shall use its best efforts to accommodate a request by the seller for documents that are within the Association’s control, in accordance with section 38-33.3-317. Requests for such documents must be made by the Owner or First Mortgagee and will be provided to the Owner or First Mortgagee.
(3) Written notice of any unsatisfactory provision in any of the documents listed in subsection (1) of this section, which notice is signed by the buyer or on behalf of the buyer and given to the seller on or before the governing documents objection deadline, shall be cause for termination of the contract of purchase and sale of the unit. If the seller does not receive such written notice of objection on or before the governing documents objection deadline, the buyer shall be deemed to have accepted the terms of said documents, and the buyer’s right to terminate the contract on this basis is waived.
(4) The time periods specified in this section may be altered by mutual agreement of the parties.
(5) Requirement for Architectural Approval. In every purchase and sale of residential real property in the Association:
(a) The seller shall cause to be furnished to the buyer, at the seller’s expense, all documents required by section 38-33.3-223 at least ten (10) days before closing in the case of a sale by owner or within the time limits set forth in section 38-33.3-223 in the case of a brokered transaction.
(b) (I) The seller shall provide the buyer with a disclosure statement in bold-faced type that is clearly legible and in substantially the following form:
“THE BUYER HEREBY ACKNOWLEDGES THAT THE BUYER HAS RECEIVED COPIES OF THE DECLARATION, COVENANTS, BYLAWS, AND RULES AND REGULATIONS OF THE OWNERS’ ASSOCIATION OF THE [NAME OF COMMON INTEREST COMMUNITY], IN WHICH THE PROPERTY IS LOCATED, AND THE BUYER UNDERSTANDS THAT THESE DOCUMENTS CONSTITUTE AN AGREEMENT BETWEEN THE ASSOCIATION AND THE BUYER. BY SIGNING THIS STATEMENT, THE BUYER ACKNOWLEDGES THAT THE BUYER HAS READ AND UNDERSTANDS THE ASSOCIATION’S DECLARATION, COVENANTS, BYLAWS, AND RULES AND REGULATIONS. THE BUYER ALSO UNDERSTANDS THAT BY COMPLETING THIS PURCHASE, THE BUYER IS RESPONSIBLE FOR PAYING ASSESSMENTS TO THE ASSOCIATION. IF THE BUYER DOES NOT PAY THESE ASSESSMENTS, THE ASSOCIATION COULD PLACE A LIEN ON THE PROPERTY AND POSSIBLY SELL IT TO COLLECT THE DEBT.
THE BUYER ALSO UNDERSTANDS THAT ANY CHANGE TO THE EXTERIOR OF THE PROPERTY MAY BE SUBJECT TO ARCHITECTURAL REVIEW AND APPROVAL. FAILURE TO SECURE SUCH REVIEW AND APPROVAL COULD BE A VIOLATION OF THE DECLARATION AND COULD RESULT IN REMEDIAL ACTION BEING TAKEN BY THE ASSOCIATION.”
(II) It shall be the responsibility of the seller to obtain from the purchaser a signed acknowledgment of receipt of the information and disclosure statement described in this section, whether such acknowledgment is incorporated in the contract of purchase and sale or otherwise, at the time of closing and to deliver such signed acknowledgment to the Association as soon as is practicable thereafter. In the event of the failure by the seller to provide such information and disclosure statement, the purchaser shall have a claim for relief against the seller for all damages to the purchaser resulting from such failure plus court costs; except that, to the extent that the buyer’s damages resulted from the Association’s failure or refusal, without legal justification, to provide documents within its control to the seller despite the good faith efforts of the seller to obtain them, or because the Association did not maintain records as required by section 38-33.3-317, the seller shall not be liable.
Section 13, Meetings (38-33.3-308).
(1) Meetings of the Owners, as the members of the Association, shall be held at least once each year. Special meetings of the Owners may be called by the president, by a majority of the Board, or by Owners having twenty percent, or any lower percentage specified in the bylaws, of the votes in the Association. Not less than ten nor more than fifty days in advance of any meeting of the Owners, 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 unit or to any other mailing address designated in writing by the Owner. The notice of any meeting shall be physically posted in a conspicuous place, to the extent that such posting is feasible and practicable, in addition to any electronic posting or electronic mail notices that may be given pursuant to paragraph (b) of subsection (2) of this section. The notice shall state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove an officer or member of the Board.
(2) (a) All regular and special meetings of the Association’s Board, or any committee thereof, shall be open to attendance by all members of the Association or their representatives. Agendas for meetings of the Board shall be made reasonably available for examination by all members of the Association or their representatives.
(b) The Association is encouraged to provide all notices and agendas required by this article in electronic form, by posting on a web site or otherwise, in addition to printed form. If such electronic means are available, the Association shall provide notice of all regular and special meetings of Owners by electronic mail to all Owners who so request and who furnish the Association with their electronic mail addresses. Electronic notice of a special meeting shall be given as soon as possible but at least twenty-four hours before the meeting.
(2.5) (a) Notwithstanding any provision in the declaration, bylaws, or other documents to the contrary, all meetings of the Association and Board are open to every Owner of the Association, or to any person designated by an Owner in writing as the Owner’s representative, and all Owners or designated representatives so desiring shall be permitted to attend, listen, and speak at an appropriate time during the deliberations and proceedings; except that, for regular and special meetings of the board, Owners who are not Board members may not participate in any deliberation or discussion unless expressly so authorized by a vote of the majority of a quorum of the board.
(b) The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a Owner or a Owner’s designated representative to speak before the board takes formal action on an item under discussion, in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue.
(3) The members of the Board or any committee thereof may hold an executive or closed door session and may restrict attendance to Board members and such other persons requested by the Board during a regular or specially announced meeting or a part thereof. The matters to be discussed at such an executive session shall include only matters enumerated in paragraphs (a) to (f) of subsection (4) of this section.
(4) Matters for discussion by an executive or closed session are limited to:
(a) Matters pertaining to employees of the Association or the managing agent’s contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the Association;
(b) Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceedings or matters that are privileged or confidential between attorney and client;
(c) Investigative proceedings concerning possible or actual criminal misconduct;
(d) Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
(e) Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy;
(f) Review of or discussion relating to any written or oral communication from legal counsel.
(4.5) Upon the final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may elect to preserve the attorney-client privilege in any appropriate manner, or it may elect to disclose such information, as it deems appropriate, about such matter in an open meeting.
(5) Prior to the time the members of the Board or any committee thereof convene in executive session, the chair of the body shall announce the general matter of discussion as enumerated in paragraphs (a) to (f) of subsection (4) of this section.
(6) No rule or regulation of the board or any committee thereof shall be adopted during an executive session. A rule or regulation may be validly adopted only during a regular or special meeting or after the body goes back into regular session following an executive session.
(7) The minutes of all meetings at which an executive session was held shall indicate that an executive session was held and the general subject matter of the executive session.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto set its hand and seal as of the day and year first above written.
The Expansion Property is described as:
Lot 1, Block 23, a Replat of Lots 48A-73A, Block 9; Lots 31B-56A, Block 13;
Lots 3B-40A, Block 23; Lots 1A-7A, Block 28; The Ridges Filing #6;
Lot 2, The Ridges Filing 6A;
Lots 1A, 2A, 4A and 5A, The Ridges Filing 6B, a re-plat of Lots 41A, 42A, 43A,
44A, 45, 46A, and 47A, Block 9, The Ridges Filing 6;
County of Mesa, State of Colorado.