THIS AMENDED AND RESTATED DECLARATION is made on the date hereinafter set forth by the MANCHESTER PARK TOWNHOUSE OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation (the “Association”).
NOW THEREFORE, the Original Declaration is Amended and Restated as follows:
Each capitalized term in this Declaration or in the Plat shall have the meaning specified or used in the Act, unless otherwise defined in this Declaration.
Section 1.1 “Act” shall mean and refer to the Colorado Common Interest Ownership Act, C.R.S, § 38-33.3-101 et seq. as it may be amended from time to time.
Section 1.2 “Articles” shall mean and refer to the Articles of Incorporation of the Manchester Park Townhouse Owners Association, Inc., as amended.
Section 1.3 “Association” shall mean and refer to the Manchester Park Townhouse Owners Association, Inc., a Colorado Corporation, not for profit, its successors and assigns.
Section 1.4 “Board” shall mean and refer to the Board of Directors of the Association.
Section 1.5 “Budget” shall mean a written, itemized estimate of the income to be derived and the expenses to be incurred by the Association on an annual basis in performing its functions under this Declaration and prepared pursuant to Article V of this Declaration.
Section 1.6 “Building” shall mean a structure constructed on the Property which contains one or more Residences.
Section 1.7 “Bylaws” shall mean and refer to the Bylaws of the Association
Section 1.8 “Common Area” shall mean those portions of the Property designated on the Plats or |any Supplemental Plat as Tracts, or Open Space, if any, and which are owned or maintained by the Association for the common use and enjoyment of the Members, including, but not limited to, parks, tracts or other open or landscaped space and easements for the use and benefit of the Owners, as more fully described in Exhibit B attached hereto.
Section 1.9 “Common Expenses” means (i) all expenses expressly declared to be Common Expenses by this Declaration, or the Bylaws of the Association; (ii) all other expenses of administering, servicing, conserving, managing, maintaining, repairing or replacing the Common Area or any other items for which the Association is responsible for maintaining; (iii) insurance premiums for the insurance carried under Article XI; and (iv) all expenses lawfully determined to be Common Expenses by the Board.
Section 1.10 “Common Expense Assessments, or Assessments” shall mean Annual, Special and Default Assessments as further defined in this Declaration, the Bylaws and the Act, and shall include late charges, attorneys’ fees, fines and interest charged by the Association.
Section 1.11 “Common Garage” shall mean the underground parking facility constructed under each Building, but not including Individual Garages as defined herein.
Section 1.12 “Deed of Trust” shall mean a Mortgage.
Section 1.13 “Eligible First Mortgagee “means any First Mortgagee who has registered with the Association in accordance with Section 14.3 of this Declaration.
Section 1.15 “First Mortgage” means any Mortgage upon a Lot which is not subject to any prior or senior lien or encumbrance, except this Declaration, liens for taxes or other liens which are given priority by statute.
Section 1.16 “First Mortgagee” means any person or entity named as a mortgagee or beneficiary in any First Mortgage, or any successor to the interest of any such person under such First Mortgage.
Section 1.17 “Guest” shall mean and refer to any agent, tenant, employee, family member, guest, licensee or invitee of an Owner, or the family, licensee or invitee of an Owner’s tenant who enters upon the Property.
Section 1.18 “Improvement” shall mean all structures and improvements located upon or made to a Lot and any appurtenances thereto of every type or kind, including, but not limited to, buildings, patio covers, awnings, the painting or staining of any exterior surfaces of any visible structure, roofing, satellite dishes, additions, walkways, screens or storm doors, outdoor sculptures or artwork, sprinkler pipes, roads, driveways, parking areas, fences, screening walls, retaining walls, stairs, decks, fixtures, landscaping, hedges, windbreaks, plantings, planted trees and shrubs, poles, signs, exterior tanks, solar equipment and exterior air conditioning.
Section 1.19 “Individual Garage” shall mean any of individual, enclosed parking spaces within the Common Garage, including, without limitation, the perimeter walls, floors, ceiling and garage door and frame.
Section 1.20 “Lot” shall mean a physical portion of the Property which is designated for separate ownership or occupancy and the boundaries of which are depicted upon the Plats or any Supplemental Plat together with a nonexclusive easement for use and enjoyment in the Common Area. For the purposes of conforming the terms and provisions of this Declaration of the terms and provisions of the Act, the term “Lot” shall be interchangeable with the term “Unit” as that term is defined in the Act. The term “Lot” shall not include: (a) any property owned by a public body; or (b) Association Properties.
Section 1.21 “Member” shall mean and refer to every person or entity who holds membership in the Association.
Section 1.22 “Owner” shall mean and refer to the record owner, whether one or more persons or entities of a fee simple title to any Lot which is a part of the Properties, and contract sellers, but excluding those having such interest merely as security for the performance of an obligation (i.e. a Mortgagee).
Section 1.23 “Plat” shall mean the Plat or Subdivision Map of Manchester Park Subdivision, Filing No. 1, recorded in Book 43, Page 53 of the Real Property records of Arapahoe County, Colorado on January 11, 1980 at Reception No. 1936308, and any subsequent amendments, supplements or annexations.
Section 1.24 “Property or Properties” shall mean and refer to that certain real property described in the Original Declaration, as more particularly described in Exhibit “A” attached hereto and incorporated by this reference, and such additions thereto as may hereafter be brought within the jurisdiction of the Association, together with all easements, rights, and appurtenances thereto, and the buildings and Improvements erected or to be erected thereon.
Section 1.25 “Residence” shall mean and refer to a single residential dwelling unit, conforming, more or less to the Lot lines of a single, particular Lot as shown upon any Plat of the Properties.
Section 1.26 “Mortgage” shall mean any mortgage, deeds of trust, contract of sale or other document pledging a Lot as security for the payment of a debt or obligation.
Section 1.27 “Mortgagee” shall mean any person, corporation, partnership, trust, company or other legal entity which takes, holds, owns, or is secured by a mortgage.
Every Owner of a Lot which is subject to assessment shall be a member of the Association. No Owner shall have more than one membership. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment by the Association. Ownership of a Lot shall be the sole qualification for membership.
Each Lot shall be allocated one (1) vote. When more than one person holds an interest in any Lot, all such persons shall become Members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot.
Every Owner shall have a right and easement of enjoyment in and to the Common Area, and such easement shall be appurtenant to and shall pass with the title to every Lot; provided, however, that such right and easement of enjoyment in and to the Common Area shall be subject to the following:
Any Owner may delegate, in accordance with the Bylaws, his right of enjoyment to the Common Area and facilities to Guests, including the members of his family, his tenants, or contract purchasers who reside on the Property.
Except as hereinabove provided, the Common Area shall not be sold, abandoned, subdivided, hypothecated, transferred or otherwise encumbered by the Association without the written consent of two-thirds (2/3) of the Members and two-thirds (2/3) of the Eligible First Mortgagees of the Lots within the Properties (based upon one vote for each mortgage); provided, however, that the granting of easements for public utilities or for other public purposes consistent with the intended use of such Common Area shall not be a prohibited transfer within the meaning of this section.
Each Owner of any Lot situated within the Property, by acceptance of a deed therefore, whether or not it shall be expressed in any such deed or other conveyance, is deemed to covenant and agree to pay the Association Annual Assessments, Special Assessments, Default Assessments, and such other Assessments as imposed by the Association. Such Assessments, including fees, charges, late charges, attorney fees, fines and interest charged by the Association shall be the personal obligation of the Owner of such Lot at the time when the Assessment or other charges became or fell due. The Association annual Common Expense Assessments and such other Assessments as imposed by the Association, including fees, charges, late charges, attorney fees, fines, and interest charged by the Association shall be a charge on each Lot and shall be a continuing lien upon the Lot against which each such Assessment or charge is made. If any Assessment is payable in installments, the full amount of the Assessment is a lien from the time the first installment becomes due. No Owner may become exempt from liability for payment of the Common Expense Assessment by waiver of the use of the Common Area or abandonment of the Lot against which the Common Expense Assessments are made. All Assessments shall be payable in amounts specified in the levy thereof, and no offsets or reduction thereof shall be permitted for any reason.
The Common Expense Assessment shall be made on an annual basis against all Lots and shall be based upon the Association’s advance budget of the cash requirements needed by it to provide for the administration and performance of its duties during such assessment year, including reasonable reserves. The Board shall cause to be prepared, at least once each fiscal year, a Budget for such fiscal year, including a reasonable provision for contingencies and deposits into the operating fund and the reserve fund. The Budget shall show, in reasonable detail, the categories of expenses and the amount of expenses in each maintenance fund, and shall reflect any expected income of the Association for the coming calendar or such fiscal year and any expected surplus from the prior year and any existing surplus in any reserve fund. The Budget may include an amount for contingencies and amounts deemed necessary or desirable for deposits to create, replenish, or add to the proper reserve fund for major capital repairs, replacements, and improvements for Association Properties. Within sixty (60) days after adoption of any proposed Budget, the Board shall mail, by ordinary first-class mail, or otherwise deliver a summary of the Budget to all the Owners and shall set a date for a meeting of the Owners to consider ratification of the Budget. The meeting shall be held not less than fourteen (14) nor more than sixty (60) days after mailing or other delivery of the summary. The summary shall include the total, projected annual income and the total, projected annual expenditures including amounts to be applied to operating expenses and reserves. At that meeting, unless a majority of all Members entitled to vote reject the Budget, the Budget is ratified, whether or not a quorum is present. In the event that the proposed Budget is rejected, the annual Budget last ratified by the Owners must be continued until such time as the Owners ratify a subsequent Budget proposed by the Board.
In addition to the Annual Assessments authorized by this Article, the Association may levy in any fiscal year one or more Special Assessments, payable over such a period as the Association may determine, for the purposes of defraying, in whole or in part, the cost of any construction or reconstruction, repair or replacement of Improvements within the Common Area or any Area which the Association maintains, or for any other expense incurred or to be incurred as provided in this Declaration. This Section shall not be construed as an independent source of authority for the Association to incur expenses, but shall be construed to prescribe the manner of assessing expenses authorized by other sections of this Declaration, and in acting under this Section, the Association shall make specific references to this Section. Any amounts assessed pursuant to this Section shall be assessed to Owners in the same proportion as provided for Annual Assessments. The Association shall not levy a Special Assessment without the approval of the two-thirds of the Owners present, in person or by proxy at a special meeting called for that purpose. The quorum at such meeting shall be fifty-one percent (51%) of the Owners entitled to vote. In the event a quorum is not obtained at any special meeting called pursuant to this Section, the meeting may be adjourned and rescheduled at which time the quorum shall be reduced by fifty percent (50%) of the original quorum. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting. Notice in writing of the amount and time for payment of the Special Assessments shall be given promptly to the Owners, and no payment shall be due less than thirty (30) days after such notice shall have been given.
All monetary fines assessed against an Owner pursuant to the Declaration, Bylaws, Articles of Incorporation or Rules and Regulations, or any expense of the Association which is the obligation of an Owner or which is incurred by the Association on behalf of an Owner shall be a Default Assessment and shall become a lien against such Owner’s Lot which may be foreclosed or otherwise collected as provided in this Declaration. Notice of the amount and due date of such default Assessment shall be sent to the Owner subject to such Assessment at least thirty (30) days prior to the due date.
The Assessments levied by the Association through its Board shall be used exclusively for: the purposes of promoting the recreation, health, safety, and welfare of the Owners and the residents on the Property; the payment of water and sewer charges; the maintenance, repair and upkeep of the Common Areas; the exterior of the Residences; the repairing, reconstructing, replacing and maintaining of, sidewalks, footpaths, utilities, landscaping; and any other maintenance obligation which may be deemed necessary by the Association for the common benefit of the Owners, or the maintenance of property values, or which may be incurred by virtue of agreement with, or by requirement of the City, County or other governmental authorities. The Assessments shall further be used to provide adequate insurance as more fully provided in Article XI of this Declaration. Also, a portion of the Assessments shall be used to provide an adequate reserve fund for the replacement, repair, and maintenance of those portions of the Common Area, and those portions of the Residences for which the Association is liable for maintenance which must be replaced on a periodic basis, and the Board shall be obligated to establish such reserve fund.
Both Annual and Special Assessments must be fixed at a uniform rate for all Lots.
Any Assessments which are not paid when due shall be delinquent. If an assessment installment is not paid within fifteen (15) days after the due date, said assessment installment shall be considered late and shall be subject to a late charge as may be imposed by the Board. Further, late installments shall bear interest from the date of delinquency at a rate to be determined by the Board, but not to exceed twenty-one percent (21%) per annum. The Association may bring an action at law against the Owner personally obligated to pay the delinquent installments. In addition to such action or as an alternative thereto, the Association may file with the Clerk and Recorder of Arapahoe County, a Statement of Lien with respect to the Lot, setting forth the name of the Owner, the; legal description of the Lot, the name of the Association, and the amount of delinquent Assessments then owing, which Statement shall be duly signed and acknowledged by the President or Vice-President of the Association or the Association’s duly authorized Manager or Attorney, and which shall be served upon the Owner of the Lot by first class mail, postage prepaid, mailed to the address of the Lot or at such other address as the Association may have in its records for the Owner of the Property. Thirty (30) days following the mailing of such notice, the Association may proceed to foreclose the Statement of Lien in the same manner as provided for the foreclosure of mortgages on real property under the statutes of the State of Colorado. In either a personal or foreclosure action, the Association shall be entitled to recover as a part of the action, delinquent interest, costs and reasonable attorney fees. 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.
The lien of the Association under this Article is prior to all other liens and encumbrances on a Lot except: (1) liens and encumbrances recorded before the recordation of the Declaration; (2) a First Mortgage on the Lot (except as allowed by the Act with regard to the limited lien priority allowed to the Association); and (3) liens for real estate taxes and other governmental assessments or charges against the Lot. This Section does not affect the priority of mechanics’ or materialmens’ liens. The lien of the Association under this Article is not subject to the provision of any homestead exemption as allowed under State or Federal law. Sale or transfer of any Lot shall not affect the lien for said Assessments or charges except that the sale or transfer of any Lot pursuant to foreclosure of any First Mortgage, or any proceeding in lieu thereof, including deed in lieu of foreclosure, or cancellation or forfeiture shall only extinguish the lien of assessment charges as provided by applicable State law. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure, nor cancellation or forfeiture shall relieve any Lot from continuing liability for any assessment charges thereafter becoming due, nor for the lien thereof.
Upon written request of a First mortgagee of any Lot, and upon payment of reaisonable compensation therefore, the Association shall report to such First Mortgagee any unpaid Assessments or other defaults under the terms of this Declaration which are not cured by said mortgagee’s mortgagor within thirty (30) days.
Mutual reciprocal easements are hereby established, declared, and granted for all party walls between Improvements constructed or to be constructed on Lots, which reciprocal easements shall be for mutual support, and shall be governed by this Declaration. Every deed, whether or not expressly so stating, shall be deemed to convey and to be subject to such reciprocal easements.
Each wall which is built as a part of the original construction or restoration of the Residences upon the Property and placed on the dividing line between the Lots shall constitute a party wall.
The cost of reasonable repair and maintenance of any party wall shall be borne in proportion to their use of the wall by the Owners on either side of the party wall.
If a party wall is destroyed or damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the other Owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use, without prejudice, however, to the right of any such Owners to call for a larger contribution from the other Owners under any rule of law regarding liability for negligent or willful acts or omissions.
Notwithstanding any other provision of this Article, an Owner who, by his negligent or willful act, causes the party wall to be exposed to the elements, shall bear the whole cost of furnishing the necessary protection against such elements.
The right of any Owner to contribution from any other Owner shall be appurtenant to the land and shall pass to such Owner’s successor in title.
In the event of any dispute arising concerning a party wall, or under the provisions of this Article, each party shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator. The three arbitrators shall act as a Board of Arbitration and the decision shall be by a majority vote of the Board of Arbitration after an arbitration hearing. No legal action with respect to a party wall dispute shall be commenced or maintained unless and until the provisions of this arbitration clause have been met. The appointment of arbitrators hereunder shall be made within twenty (20) days after notice by one party to the other party that a dispute exists, which notice shall not be given after any applicable statute of limitations concerning such dispute shall have expired.
The Architectural Control Committee shall consist of no fewer than three (3) persons appointed by the Board of the Association. Board members may serve on the Architectural Control Committee. A majority of the Committee may designate a representative to act for it.
No structure or any attachment to an existing structure, whether a Residence, any accessory building, fences, walls, exterior lighting equipment, athletic equipment, or other similar Improvements or attachments, shall be constructed upon the Property and no alteration of the exterior of a structure shall be made and no change in the final grade, nor the installation of any landscaping shall be performed, unless the complete plans and specifications therefore shall have been first submitted to and approved in writing by the Architectural Control Committee. Such plans and specifications are to show exterior design, height, materials, color, location of the structure or addition to the structure, plotted horizontally and vertically, general plan of landscaping, fencing, walls, windbreaks and the grading plan. Plans and specifications shall be submitted in duplicate, with one copy retained for the Association’s records and the second copy to be returned to the Owner within thirty (30) days of submission. The Architectural Control Committee shall exercise its best judgment to the end that all attachments, Improvements, construction, landscaping and alterations to structures and on lands within the Property conform to and harmonize with the existing surroundings and structures.
The Architectural Control Committee shall approve or disapprove all plans within thirty (30) days after submission. In the event that the Architectural Control Committee fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with.
A majority vote of the Architectural Control Committee is required to approve a proposed Improvement, unless the committee has designated a representative to act for it, in which case the decision of the representative shall control.
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.
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.
The Architectural Control Committee may grant reasonable variances or adjustments from any conditions imposed by this Article in order to overcome practical difficulties and prevent unnecessary hardships arising by reason of the application of the restrictions contained in this Article. 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.
If upon the erection of any Residence upon any of the Lots which are subject to these restrictions, it is disclosed by survey that a minor violation or infringement of setback lines has occurred, such violation or infringement shall be deemed waived by the Owners of the Lots immediately adjoining the Lot upon which the violation or infringement occurs, and such waiver shall be binding upon all other Owners who are subject to this Declaration. Nothing herein contained shall prevent the prosecution of a suit for any other violation of the restrictions contained in this Declaration. A “minor violation” for purpose of this Section is a violation of not more than one (1) foot beyond the required setback lines or Lot lines. This provision shall apply only to the original structures and shall not be applicable to any alterations or repairs to such structure.
Except for repair, replacement and maintenance expressly designated herein as the Association’s responsibility, all repair, replacement and maintenance of the interior and exterior of each Residence and all other Improvements, equipment, utilities and structures located within the Lot boundaries shall be the sole responsibility of the Owner. In addition, Owners shall be solely responsible for maintenance, repair and replacement of the following:
All exterior repair, replacement and maintenance of the Residences and Improvements, structures, and landscaping shall be subject to the rules and regulations promulgated by the Board.
Each Owner is responsible for the maintenance, repair, and replacement of any utility, plumbing, mechanical, or electrical fixture, wiring, piping, chute, flue, duct, conduit, or related or supporting system or components of the above, including sanitary sewer systems (“Utilities”), which serve only that Owner’s Residence. Except as otherwise provided below, Owners shall be responsible for maintenance repair and replacement under this section beginning at the point at which such Utilities are identifiable as serving only the Owner’s Residence. By way of example, an Owner shall be responsible for the maintenance of a water or sewer line beginning at the point at which said line “tees” or branches off of a main line serving more than a single Residence, provided that the line which “tees” or branches off serves only that Owner’s Residence. Notwithstanding the foregoing, Owners shall be responsible for natural gas supply lines beginning at the point where such lines enter the Owner’s Residence, and Owners shall be responsible for electrical lines serving only that Owner’s Residence beginning at, and including the electric meter for the Residence.
Determination of whether any such repair or maintenance is the obligation of the Association shall rest solely with the Board, which shall also have the sole and exclusive right to determine the timing, scope and parameters of such maintenance as the Association is obligated to perform including the kind and type of materials used in such repair and maintenance.
If the need for maintenance, replacement or repair is caused through the willful or negligent act of any Owner, his agent, family, Guests or invitees, the cost of such maintenance or repairs shall be added to and become part of the Assessment to which such Owner’s Lot is subject.
The use of the Common Area, Lots and Improvements thereon shall be subject to the restrictions hereinafter set forth.
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 or the Association.
No use shall be made of the Common Area or the Lots which would in any manner violate the statutes, rules, regulations, orders or decrees of any court or governmental authority having jurisdiction over the Common Area.
No Owner shall place any structures upon the Common Area, nor shall any Owner do any act which would temporarily or permanently deny free access to any part of the Common Area to any or all Owners.
No use shall ever be made of the Common Area which will deny ingress and egress to those Owners having access to Lots only over Common Area and the right of ingress and egress to said Lots is hereby expressly granted.
No business or commercial activity of any kind whatever shall be conducted on any Lot or upon any portion of the Property, unless:
No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any Lot, except that dogs, cats or other commonly maintained household pets of a type and quantity as permitted by the ordinances and regulations of the City of Aurora may be kept, provided that they are not kept, bred or maintained for any commercial purpose and do not make objectionable noises or otherwise constitute a nuisance or inconvenience to any other resident. Each Owner of a household pet shall be financially responsible and liable for any damage caused by said household pet or any expense incurred by the Association as a result of the keeping of such pet.
No advertising signs, billboards, unsightly objects or nuisances shall be erected, placed or permitted to remain on the Common Area or any Lot; provided, however that Owners shall be permitted one temporary sign of not more than five square feet and containing the words “For Sale,” “For Lease” or “For Rent” per Lot which is placed in a window of the Residence, or on a front porch or patio, or placed on the Common Area in conformance with rules adopted and published by the Board. Such permitted signs shall be affixed in a manner which does not damage the Common Area or the exterior of the Residence. Any damage caused by improperly affixing such a sign shall be the responsibility of the Owner pursuant to Section 8.5 of this Declaration.
All exterior placement or installation of antenna, satellite dishes and other over- the-air reception devices less than one meter in diameter, designed for reception of video signals within the Property shall be subject to the rules and regulations to the extent permitted by federal law. Devices over one meter in diameter, and radio reception devices may be installed only with the prior written approval of the Board.
Damage to any portion of the Common Areas and Improvements located thereon caused by an Owner or his family or Guests shall be paid for by said Owner after due notice and hearing. The term “damage” shall not include ordinary wear and tear.
The Owner of any Lot shall not permit any noxious or offensive activity to be conducted, carried on or practiced on his Lot or within his Residence or the Common Areas, or which constitute nuisance as provided by law, or that will detract from the residential value, reasonable enjoyment or quality of the Property.
No activities shall be conducted on the Property and on Improvements constructed on the Property which might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms shall be discharged upon the Property and no open fires shall be lighted or permitted on the Property.
No light shall be emitted from any Lot which is unreasonably bright or causes unreasonable glare; no sound shall be emitted on any Lot which is unreasonably loud or annoying; no odor shall be emitted on any Lot which is noxious or offensive to others.
No unsightly article shall be permitted to remain on any Lot so as to be visible from adjoining Lots, the street or the Common Area. No garbage, refuse, rubbish, or debris shall be allowed to accumulate on any Lot, nor shall it be deposited on the Property, or on any street within the Property unless placed in a suitable container, as may be defined by the Board from time to time, and suitably located, solely for the purpose of garbage pickup. All equipment for the storage or disposal of such materials shall be subject to the Association’s published Rules and Regulations and shall be kept in a reasonably clean and sanitary condition.
No parking or storage of any type of house trailer, camper, camping trailer, boat trailer, running gear, boat, truck exceeding a rated load capacity of one (1) ton, self- contained motorized recreational vehicle or accessories thereto, or commercial vehicle with conspicuous signs, graphics or accessories thereto shall be permitted on any Lot, parking area, street, or drive, unless specifically designated by the Association therefore, unless contained in an enclosed Individual Garage. Such vehicles may be parked as a temporary expedient for loading, delivering, emergency, etc. (However, this restriction shall not restrict trucks or other commercial vehicles within the Properties which are necessary for the construction of residential dwellings or maintenance of the Common Area.)
No abandoned or inoperable automobiles or vehicles of any kind shall be stored or parked within the Property except in an enclosed Individual Garage. The definition of an “abandoned or inoperable vehicle” shall include, without limitation, any automobile, truck or other vehicle which does not have an operable propulsion system installed therein, or which is otherwise inoperable, or which has an invalid registration or expired license plate. In the event that the Association shall determine that a vehicle is an abandoned or inoperable vehicle, then a written notice describing said vehicle shall be personally delivered to the Owner thereof or shall be conspicuously placed upon the vehicle. If the abandoned or inoperable vehicle is not removed within 72 hours after providing such notice, the Association shall have the right to remove the vehicle, and the owner thereof shall be solely responsible for all towing and storage charges as incurred by the Association.
Any Owner who leases his Lot or the Improvements constructed thereon shall be required to provide in his Lease that the terms of the lease shall be subject in all respects to the provisions of this Declaration, the Association’s Articles of Incorporation, By-Laws and Rules and Regulations, and that any failure by the lessee to comply with the terms of such documents shall be a default under the lease. All leases shall be required to be in writing and shall be for a minimum term of three (3) months. No lease shall permit use of the Residence as temporary or transient housing.
In addition to the Owners’ easement of enjoyment as more fully described in Section 4.1 of this Declaration, the easements over and across the Common Area shall be those shown or provided for upon the recorded Plat, and such other easements as may be established pursuant to the provisions of this Declaration of Covenants, Conditions and Restrictions.
Each Owner of a Lot hereby grants to each of the other Owners of a Lot within the same Building, and to the Association, a non-exclusive, reciprocal easement for the installation, maintenance, repair or replacement of Utility lines and equipment for Utilities, including, without limitation, water, sewer, gas, telephone, electricity, cable television, data transmission of any type, and heating and ventilation; and for vehicular and pedestrian ingress and egress on, over and across that portion of the Common Garage situated on his Lot, more particularly described as follows:
“A strip of land, twenty four feet (24’) in width, to and from each Lot within a Building, the centerline of which being the bearing reference line as delineated upon each Lot within a Building situated within Manchester Park Subdivision, as depicted on the Plat, said bearing reference line is ninety-four feet (94.00’) in length.
“Further, there is hereby created an easement for ingress and egress over and across that portion of the Common Area upon which a driveway is constructed, for entrance and exit purposes from the Common Garage to the public street.”
The Garage Easement shall be appurtenant to the designated Lot and any conveyance of a Lot shall pass title to the appropriate Garage Easement whether or not expressly so stated in the conveyance of the Lot. Should the Owner of the Lot on which the Garage Easements exists ever own an easement on such Lot, there shall be no merger so as to extinguish such easement, but it shall continue to exist and be appurtenant to the Lot as designated on the Plat. The use of Common Garages and Individual Garages shall be subject to the reasonable Rules and Regulations of the Association. No Owner of a Individual Garage, a portion of the Common Garage, or Garage Easement shall make any change, alteration or modification to the structure thereon which will in any way damage or impair the Building or any Residence constructed on the Lot, including, without limitation, utilities, access to utilities, and structural elements necessary for the existence or support of the Residence. The Association and Owner of the Lots within any given Building shall, at all times, have reasonable access to the Common Garage to perform maintenance as required in this Declaration.
Each Lot and the Common Area shall be subject to: (1) an easement for encroachment of Residences, including without limitation, downspouts, air conditioning equipment, chimneys and fences onto adjoining Lots or the Common Area; (2) encroachment of the Common Area onto any Lot; (3) overhangs, as designed or constructed, by the Declarant; and (4) any encroachments occurring thereafter as a result of settling or shifting of any structure. A valid easement shall also exist for said encroachments and overhangs for their maintenance, repair and replacement. If any structure is partially or totally destroyed and then rebuilt, the Owners of the Lots agree that minor encroachments of parts of construction onto adjoining Lots or the Common Area due to the reconstruction shall be permitted and that a valid easement for such overhangs and the maintenance thereof shall exist.
There is hereby created a blanket easement upon, across, over and under the Common Area for installation, replacing, repairing and maintaining all utilities, including but not limited to water, sewer, gas, telephone, electricity, cable television antenna system, or data transmission lines, if any. By virtue of this easement, it shall be expressly permissible for the providing utility companies or municipalities supplying such utility service or the Association to erect and maintain the necessary equipment on the Property and to affix, repair and maintain water and sewer pipes, gas, electric and telephone wires, circuits, conduits and meters.
Each Lot and the Common Area shall be subject to an easement in favor of the Association (including its agents, employees and contractors) for providing maintenance as provided for herein during regular business days after twenty four (24) hours’ notice to the occupants of any affected Lots except where the occupants have no objections to earlier entry for repairs. In emergency situations earlier entry is authorized; however, the occupants of affected Lots shall be warned of impending emergency entry as early as is reasonably possible.
There is hereby granted to each Owner an easement on, over and across the Common Area and adjoining Lots as may be reasonably necessary to enable such Owner to perform maintenance, repair and other work upon any air conditioning unit, or other similar device located upon the roof of the Residence on said Owner’s Lot.
Certain Lots within the Properties are burdened by or encroached upon by driveways, private streets, water and sanitary sewer lines, and an easement for the installation, maintenance, repair, operation and use of such drives, water and sanitary sewer lines are hereby granted to the Owners and users of the same.
The Board or its agent shall obtain and maintain at all times insurance of the type and kind hereinafter provided: A policy of property insurance in an amount equal to the full replacement value (i.e. 100% of current “replacement cost" exclusive of the land, and other items normally excluded from coverage) of the Residences located on each Lot with a “Demolition Endorsement” or its equivalent, and if necessary, an “Increased cost of construction Endorsement” or “Contingent Liability from Operation of Building Law Endorsement” or the equivalent, such insurance to afford protection against at least the following:
The insurance shall be carried in blanket policy form naming the Association, as insured, as attorney in fact for all Lot Owners. The policy or policies shall identify the interests of each Lot Owner (Owner’s name and residence address and/or Lot number designation) and shall contain a standard non-contributory Mortgagee’s clause in favor of each First Mortgagee, and a provision that it cannot be cancelled or materially altered by either the insured or the insurance company without (10) days prior written notice to each Owner and each Eligible First Mortgagee. The Association shall furnish a certified copy of such blanket policy, the certificate identifying the interest of the Owner, to any party in interest upon request. All blanket policies of insurance shall provide that the insurance thereunder shall be invalidated or suspended only in respect to the interest of a particular Owner guilty of a breach of warranty, act, omission, negligence or non-compliance with any provision of such policy, including payment of the insurance premium applicable to that Owner’s interest or who permits or fails to prevent the happening of any event whether occurring before or after a loss, which under the provisions of such policy would otherwise invalidate or suspend the entire policy, but the insurance under any such policy as to the interest of all other insured Owners not guilty of such an act or omission shall not be invalidated or suspended and shall remain in full force and effect.
Each Owner shall carry and maintain insurance in a type and amount reasonably sufficient to insure against loss or damage to personal property on his Lot and for liability for injury, death or damage occurring inside his Lot, and liability for damage to the Common Area or to other Lots or to personal property within other Lots. “Personal property” shall include, but is not limited to, upgrades, additions, or property not provided as part of the initial construction, all furnishing, carpeting, draperies, appliances, and other items of personal property belonging to an Owner or an Owner’s Guests. Any such policy shall contain waivers of subrogation and shall be so written that the liability of the carriers issuing insurance obtained by the Association shall not be affected or diminished thereby.
The Board may, in its discretion, choose to submit a claim under the Association's insurance policy. If a claim is submitted, the payment of the deductible amount for claims which the Association is responsible for insuring, shall be as follows:
The Association shall maintain insurance covering all Improvements located of constructed upon the Common Area. The Association shall maintain the following types of insurance on the Improvements located on the Common Area:
All such policies of insurance shall contain waivers of subrogation and waivers of any defense based on invalidity arising from any acts of a member of the Association and shall provide that the policies may not be cancelled or substantially modified without at least ten (10) days’ prior written notice to all insureds, including the Eligible First Mortgagees of any Lot. Duplicate originals of all policies and renewals thereof, together with proof of payment of premiums, shall be delivered to any Eligible First mortgagee of any Lot upon written request. The insurance shall be carried in blanket forms naming the Association, as the insured, as trustee for each of the Owners.
The Association shall, at least once a year, obtain an appraisal for insurance purposes which shall be maintained as a permanent record, showing that the insurance in any year represents one hundred percent (100%) of the full replacement value of the Improvements on each Lot and on the insurable Common Area.
The Association shall notify each Eligible First Mortgagee of a Lot whenever: (1) damage to any improvement on a Lot exceeds $5,000.00 and/or, (2) damage to the Common Areas and the Improvements situated thereon exceeds $10,000.00. Said notification shall be delivered within twenty (20) days after the event causing the damage.
The Association shall obtain and maintain workers’ compensation and employer’s liability insurance and all other similar insurance with respect to employees of the Association in the amount and in forms now or hereafter required by law.
The Association shall purchase Directors’ and Officers’ liability insurance in an amount reasonably necessary to protect the Directors and Officers.
The Association may obtain insurance against such other risks, of similar or dissimilar nature, including flood insurance, as it shall deem appropriate with respect to the Association’s responsibilities and duties.
In the event of damage or destruction to all or a portion of the Common Area due to fire or other 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 Areas, the Association shall present to the members a notice of a special assessment for approval by the membership in accordance with Article V, Section 5.3. If such assessment is approved, the Association shall make such assessment and proceed to make repairs or reconstruction. If such assessment is not approved, the insurance proceeds may be applied in accordance with the wishes of the membership as expressed by written consent of sixty-seven percent (67%) of the Owners, except that the proceeds shall not be distributed to the Owners, unless made jointly payable to Owners and the First Mortgagees of their respective Lots, if any. The assessment as to each Owner and Lot shall be equal to the assessment against every other Owner and Lot. Such assessment shall be due and payable as provided by resolution of the Board, but not sooner than sixty (60) days after written notice thereof. The 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.
If at any time or times during the continuance of ownership pursuant to this Declaration all or any part of the Common Areas shall be taken or condemned by any public authority or sold or otherwise disposed of in lieu of or in avoidance thereof, the following provisions of this Article shall apply:
Any First Mortgagee, upon written request to the Association and payment of a reasonable fee to cover the costs thereof shall be entitled to timely written notice of:
Any consent of First Mortgagees required under the Declaration, Bylaws or Articles of Incorporation shall be solicited by sending a request for approval by Certified Mail, return receipt requested to the address provided therefore to the Association by such First Mortgagee. Any failure to respond to such written request for approval within thirty (30) days after the request is mailed shall be deemed and implied approval.
A holder, insurer or guarantor of a First Mortgage who has delivered a written request to the Association containing its name, address, the legal description and the address of the Lot upon which its holds a First Mortgage, shall be considered an “Eligible First Mortgagee.” Insurers and guarantors of a First Mortgage shall have the same rights as |an Eligible First Mortgagee.
The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any rights hereunder shall in no event be deemed a Waiver of the right to do so thereafter.
Except as otherwise provided by the Act or this Declaration, The provisions of this Declaration may be amended, in whole or in part, at any time and from time to time, by vote or agreement of Owners holding at least fifty-one percent (51%) of the votes in the Association, and at least fifty-one percent (51%) of the Eligible First Mortgagees, based upon one vote per Lot; provided, however, that any amendment which changes the uses to which any Lot is restricted, changes the boundaries or the allocated interests of any Lot, or which creates or increases any special declarant right shall require approval by vote or agreement of Lot Owners holding at least sixty-seven percent (67%) of the votes in the Association, and at least fifty-one percent (51%) of the Eligible First Mortgagees, based upon one vote per Lot. Amendments to the Declaration required by this Article to be recorded by the Association shall be prepared, executed, recorded and certified on behalf of the Association by an officer of the Association designated for that purpose or, in the absence of such designation, by the President of the Association.
The provisions, covenants, conditions, restrictions and equitable servitudes contained in this Declaration shall run with and bind the land in perpetuity.
This Declaration shall not be revoked nor shall the Association be dissolved unless approved in writing by Owners holding 80% or more of the total vote hereunder and by approval of 67% the Eligible First Mortgagees based upon one vote per Lot. Such revocation shall be effective when duly recorded in the office of the Clerk and Recorder of Arapahoe County; provided, however that any amendment or revocation must comply with the Statutes of Colorado and the resolutions and Ordinances of Arapahoe County, Colorado, or of any governmental entity having jurisdiction over the Property.
In any proceeding at law or in equity against any person or persons violating or attempting to violate any provisions of this Declaration, the Bylaws or the Articles of Incorporation, either to restrain violation and/or recover damages, or to enforce any lien or right created by this Declaration, the prevailing party shall be entitled to recover its costs, including reasonable attorneys’ fees. In any action wherein the Association is awarded costs and/or attorneys’ fees against an Owner such costs and/or fees shall become an Assessment against said Owner’s Lot.
The terms of this Declaration shall be liberally construed to effectuate their purposes of creating a uniform plan for the administration of the Common Interest Community and of promoting and effectuating the fundamental concepts as set forth in the recitals of this Declaration. This Declaration shall be construed and governed under the laws of the State of Colorado.
Unless the context otherwise requires, the singular shall include the plural, and the plural shall include the singular, and each gender referral shall be deemed to include the masculine, the feminine and neuter.
All captions and titles used in this Declaration are intended solely for convenience of reference and shall not enlarge, limit or otherwise affect that which is set forth in any paragraph, section or article hereof.
In case of any conflict between this Declaration and the Articles of Incorporation or Bylaws of the Association, this Declaration shall control. In case of conflict between the provisions of the Articles of Incorporation and the Bylaws, the Articles shall control.
Each Owner, each tenant residing on the Property and each First Mortgagee shall register his or her mailing address with the Association. Unless otherwise provided in the Act, the Declaration, Articles or Bylaws of the Association, and except for monthly statements and other routine notices, all other notices or demands intended to be served upon an Owner or upon a First Mortgagee shall be sent by First Class Mail, postage prepaid, addressed in the name of the Owner at such registered mailing address.
All challenges to the validity of this amendment must be made within one (1) year after the date of recording of this document.
Invalidation of any one of the provisions, covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect.