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HomeMy WebLinkAboutCUNNINGHAM CORNER PUD - Filed OA-OTHER AGREEMENTS - 2003-07-31A CREDIT AGREEMENT THIS AGREEMENT, is executed this ) day of September, 1986, by and between Metcalf, Ltd. (Metcalf) and the City of Fort Collins, Colorado (City). WITNESSETH WHEREAS, Metcalf is the owner/developer of Chestnut Village at Cunningham Corner PUD and Five Oaks Village at Cunningham Corner PUD (the Property); and WHEREAS, as a result of Metcalf's construction of certain storm drainage facilities with respect to the development of Five Oaks Village at Cunningham Corner PUD, and as outlined in Exhibit "B" of the Development Agreement of said PUD, Metcalf is entitled to storm drainage credits pursuant to Section 93-11 of the Code of the City of Fort Collins; and WHEREAS, the parties desire to provide for certain limited transferability of said credits. NOW THEREFORE, in consideration of the mutual covenants of the parties, and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, it is agreed as follows: 1. Any credits to which Metcalf is entitled pursuant to Section 93-11 of the Code of the City of Fort Collins with respect to storm drainage improvements constructed pursuant to the development requirements for the property are freely trans- ferable between Chestnut Village at Cunningham Corner PUD and Five Oaks Village at Cunningham Corner PUD and may be used to satisfy storm drainage basin fees applicable to either PUD to the extent that credits are available. Notwithstanding the foregoing, in the event that the devel- oper should transfer or convey, either voluntarily or through operation of law, either or both Planned Unit Developments to third parties, any unused credits shall be applied only to basin fees applicable to the Planned Unit Development from which the credit was originally earned. 2. This Agreement shall constitute the entire understand- ing of the parties with regard to the subject matter hereof and may be modified only in writing executed by the parties. This Agreement shall be deemed to run with the land and shall inure to the benefit of the parties, their heirs, successors, repre- sentatives and assigns. necessary to the newly elected Directors in order to legally constitute such meeting. 8. Regular Meetings. Regular meetings of the Board of Direc- tors may be called by the President or a majority of the Directors and may be held at such time and place as shall be determined, from time to time, by a majority of the Directors; but at least one such meeting shall be held during each calendar year. Notice of regular meetings of the Board of Directors shall be given to each Director, personally or by mail, telephone, or telegraph, at least three (3) days prior to the day named for such meeting, which notice shall state the time and place of said meeting. 4. Special Meetings. Special meetings of the Board may be called by the President on three (3) days' notice to each Director, given personally or by mail, telephone, or telegraph, which notice shall state the time, place and purpose of the meeting. Special meetings of the Board of Directors shall be called by the President or Secretary in like manner and on like notice on the written request of a majority of the Directors. 10. Waiver of Notice. Before or at any meeting of the Board of Directors, any Director may,.in writing, waive notice of such meeting; and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a Director at any meeting of the Board shall constitute a waiver of notice by him of the time and place thereof. If all the Directors are present at any meeting of the Board, no notice shall be required; and any business may be transacted at such meeting. 11. Board of Directors' Quorum. At all meetings of the Board of Directors, a majority of the Directors shall constitute a quorum for the transaction of business; and the acts of the majority of the Directors present at a meeting at which a quorum is present shall be the acts of the Board of Directors. If, at any meeting of the Board of Directors, there shall be less than a quorum present, the majority of those present may adjourn the meeting from time to time. If a quorum is present at such adjourned meeting subsequently held, any business which might have been transacted at the meeting as originally called may be transacted without further notice. 12. Fidelity Bonds. The Board of Directors may require that all officers and employees of the Association handling or respon- sible for Association funds shall furnish adequate fidelity bonds. The premiums on such bonds shall be paid by the Association. 13. Compensation. No compensation shall be paid to Directors, as such, for their services. however, any Director may be reim- bursed for his actual expenses incurred in the performance of his duties. 7 ARTICLE VI OFFICERS 1. Designation. The Officers of the Association shall be a President, a Vice President, a Secretary, and a Treasurer, all of whom shall be elected by and from the Board of Directors, and such assistant officers as the Board of Directors shall, from time to time, elect. 2. Election of Officers. The Officers of the Association shall be elected annually by the Board of Directors at the organi- zational meeting of each new Board and shall hold office at the pleasure of the Board. One person may hold concurrently any two offices provided, however, that the offices of President and Secretary shall not be held by the same person. The office of Vice President need not be filled. 3. Removal of Officers. Upon an affirmative vote of a majority of the members of the Beard of Directors, any Officer may be removed, either with or without cause, and his successor elected at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors called for such purpose. 4. Vacancies. A vacancy in any office because of death, resignation, removal,, disqualification, or otherwise may be filled by a majority vote of the members of the Board of Directors. S. President. The President shall be the principal executive officer of the Association, and, subject to the control of the Directors, shall in general supervise and control all of the busi- ness and affairs of the Association. lie shall preside at all meet- ings of the :Board of Directors and members. lie shall present, at each Annual Meeting of the members, a report of the conditions of the business of the Association. He shall cause to be called Regu- lar and Special Meetings of the members and Directors in accordance with these By -Laws. Ile shall appoint and remove, employ and dis- charge, and fix the compensation of all employees of the Associa- tion and shall have the power to appoint committees from among the members, from time to time, as he may, in his discretion, decide is appropriate to assist in the conduct of the affairs of the Associa- tion. He shall sign and make all contracts and agreements in the name of the Association. lie shall sign checks, notes, drafts, warrants, or other orders for the payment of money duly drawn by the Treasurer, and any deeds, mortgages, bonds, or other instru- ments which are required to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Directors to some other officer or agent of the Association, or shall be required by law or by the Declaration to be otherwise signed or executed. Ile shall enforce these By -Laws and perform all of the duties incident to the position and office and which are required by law. 0 6. Vice -President. The Vice -President shall have the powers and authority and shall perform all the functions and duties of the President in the absence of the President or his inability, for any reason, to exercise such powers and functions or perform such duties. 7. Secretary. The Secretary shall keep all the minutes of the meetings of the Board of Directors and the minutes of all meetings of the Association; he shall have charge of such Looks and Rapers as the Board of Directors may direct; and he shall, in general, perform all the duties incident to the office of Secretary. The Secretary shall compile and keep up-to-date at the princi- jDal office, of the Association a complete list of members and their last known addresses as shown on the records of the Association. Such list shall also show opposite each member's name the number or other appropriate designation of the Lot owned by such member. Such list shall be open to inspection by members and other persons lawfully entitled to inspect the same at reasonable times during business hours. S. Treasurer. The Treasurer shall have the responsibility for Association funds and shall'be responsible for keeping full and accurate accounts of all receipts and disbursements in books belonging to the Association. He shall be responsible for the deposit of all monies and other valuables in the name, and to the credit, of the Association in such accounts and depositories as may, from time to time, be designated by the Board of Directors. Withdrawals shall be made from such accounts by checks signed by the President, Treasurer, or such other person as the Board of Directors may designate. !Ie shall, in'general, perform all of the duties incident to the office of Treasurer. ARTICLE VII INDE14NIFICATION OF OFFICERS A14D DIRECTORS The Association shall indemnify every Director or Officer, his heirs, executors, and a:3ministrators, against all loss, costs, and expenses, including counsel fees, reasonably incurred by him in connection with any action, suit, or proceeding to which he may be made a party by reason of his being or having been a Director or Officer of the Association, except as to matters as to which he shall be finally adjudged in such action, suit, or proceeding to be liable for gross negligence or willful misconduct. In the event of a settlement:, indemnification shall be provided only in connection with such matters covered by the settlement as to which the Asso- ciation is advised by counsel that the person to be indemnified has not been guilty of gross negligence or willful misconduct in the performance of his duty as such Director or Officer in relation to the matter involved. The foregoing rights shall not be exclusive of the other rights to.which such Director or officer may be entitled. All liability, loss, damage, costs, and expense incurred or suffered by the Association by reason of or arising out of or in connection with the foregoing indemnification provisions shall be treated and handled by the Association as a Common Expense; provided, however, that nothing contained in this Article VII shall be deemed to obligate the Association to indemnify any member or Owner who is or has been a Director or Officer of the Association with respect to any duties or obligations assumed or liabilities incurred by him under and by virtue of the Declaration as member or Owner. ARTICLE VIII BILLS, NOTES, CHECKS, AND OTHER NEGOTIABLE INSTRUMENTS All bills payable, notes, checks, or other negotiable instru- ments of the Association shall be made in the name of the Associa- tion. Cheeks shall be signed by either the President or 'Treasurer of the Association and notes or other negotiable instruments of the Association shall be signed by the President and counter -signed by the Secretary. No officer or agent of the Association, either singly or jointly with others, shall have the power to make any bills payable, note, check, draft, or warrant, or other negotiable instruments, or endorse the same in the name of the Association, or contract or cause to be contracted any debt or liability in the name of or in behalf of the Association, except as expressly pre- scribed and provided by the Board of Directors. ARTICLE IX AI -I E N DIME IJ T These By -Laws may be amended by vote of a majority of the votes entitled to be cast by members present in person or by proxy at an Annual Meeting or.Special Meeting constituted for such purpose. ARTICLE X EVIDENCE OF OWNERSHIP, REGISTRATION OF MAILING ADDRESS, AND REQUIRED PROXIES 1. Proof of Ownership. Any person or other entity, upon becoming an Owner of a I,ot, shall furnish to the Board of Directors a photocopy or a certified copy of the deed or contract vesting that person with an interest of ownership, which instrument shall remain in the files of the Association. 2. Registration of Mailing Address. The Owner or Owners of each Lot shall have one registered mailing address to be used by the Association for mailing of statements of assessment, notices, 10 demands, and all other communications; and such registered address shall be the only mailing address of a person or persons, firm, corporation, partnership, association, or other legal entity or any combination thereof to be used by the Association. Such registered address shall. be furnished by such Owner or Owners to the Secretary within five 1:5) days after an ownership interest in a Lot is acquired, or after a change of address; and such registration shall be in written form and signed by all the Owners of the Lot or by such person as is authorized by law or designated by the other Owners to represent the interests of the Owners thereof. 3. Required Proxies. If ownership of a Lot is held by more than one person or by a firm, corporation, partnership, associa- tion, or other legal entity, or any combination thereof, such Owners shall execute a written statement appointing and authorizing one person or alternate persons to attend all Annual Meetings and Special Meetings of members and there at to cast whatever vote the members themselves might cast if they were personally present, and to sign all petitions, waivers, and other documents as herein provided, and otherwise to act as their representative. Such proxy (or written statement) shall be effective and remain in force unless voluntarily revoked, amended, or sooner terminated by operation of law provided, however, that within thirty (30) days after such revocation, amendment, or termination, the Owners shall reappoint and authorize one person or alternate persons to act as their representative as herein provided. The requirements herein contained in this Article shall be first met before a member shall be deemed in good standing and entitled to vote at any Annual Meeting or Special Meeting of members. ARTICLE XI This Association is not organized for profit. No member, member of the Board of Directors,. or Officer, shall receive or shall be lawfully entitled to receive any pecuniary profit from the operation thereof; and in no event, shall part of the funds or assets of the Association be paid as salary or compensation to, or distributed to, or inure to the benefit of, any member of the Board of Directors,. Officer, or member of the Association; provided, however, (1) that reasonable compensation may be paid to any member, Director, or Officer while acting as an agent or employee of the Association for services rendered in effecting one or more of the purposes of the Association, and (2) that any member, Director, or Officer may, from time to time, be reimbursed for his actual and reasonable expenses incurred'in connection with the administration of the affairs of the Association. 11 IN WITNESS WHEREOF, the undersigned have hereunto set their hands this 1,5-- day of 1979. OF DI„ZECTORS IL IL )$ULER$Y A'f l,i]T-Ti T n7 T "rinV .I 12 D bN Il b I ►,-_o.-ded JUN 1 5'1979v�'.�,�. —�0► Reception No. 31212s lames P. Thom#h PG ► 9 9 9, DECLARATION OF EASEMENTS, COVENANTS, CONDITIONS, AND RESTRICTIONS FOR CUNNINGHAM CORNER P.U.D. WHEREAS, Cunningham Corner Partnership, a General Partnership, hereinafter referred to as "the Developer," is the owner of that certain parcel of real property located in the County of Larimer, State of Colorado, legally described on Exhibit "A" attached hereto and incorporated herein by reference and hereinafter to as "the Property"; and WHEREAS, the Developer desire to create a residential community on the Property with common open spaces for the benefit of said community; and WHEREAS, the Developer desires to provide for the maintenance of the streets, buildings, and common open spaces and desires to establish certain standards for development of the Property as a planned residential community by means of protective covenants to insure the lasting beauty, value and enjoyment of the Property. To this end, together with such additions as may hereinafter be made thereto, for the benefit of the Property and the owners thereof, the Developer desires to adopt, and to subject the Property to the easements, covenants, conditions, restrictions, charges, and liens hereinafter :yet forth; and WHEREAS„ the Developer will incorporate under the laws of the State of Colorado as a non-profit corporation, the Cunningham Corner Homeowners' Association, hereinafter referred to as "the Association"„ for the efficient preservation of the values and facilities of the community, and will delegate and assign to the Association the powers and duties of maintaining the streets and common open spaces, enforcing the covenants and restrictions of this Declaration, and collecting and disbursing the charges and assessments hereafter created. NOW THEREFORE, the Developer hereby publishes and declares that the Property shall be held, sold, conveyed, transferred, leased, sub -leased, and occupied subject to the following ease- ments, covenants, conditions, restrictions, reservations, uses, locations, and obligations which shall run with the Property and every portion thereof and shall be binding upon the Developer and all parties }:laving any right, title, or interest in the Property or any portion thereof, their heirs, administrators, successors, and assigns, and shall inure to the benefit of the owners thereof. ARTICLE I: DEFINITIONS Section 1: "Plat' shall mean and refer to the recorded sub- division Plat. of the Cunningham Corner P.U.D., recorded in the Office of the Clerk and Recorder of the County of Larimer, State of Colorado, including any amendments thereto or replats thereof. Section 2: "Development Plan" shall mean and refer to the Final Development Plan for development of the Property as a Planned �U Unit Development, as approved by the City Council of the City of Fort Collins, Colorado. ti BK I S b 11 PU U I J U Section 3: "Lot" shall mean and refer to any Lot designated on the Plat, excluding and excepting the Common Open Spaces. Section 4: "Building" shall mean and refer to any Building constructed on a Lot or qroup of Lots as permitted by the Develop- ment Plan for residential purposes. Section 5: "Streets" shall mean and refer to all Streets shown on the Plat. All Streets shall be dedicated on the Plat to the public, but shall be maintained by the Association until such time as said Streets have been accepted for maintenance by the City of Fort Collins, Colorado, or other governmental agency having jurisdiction over the Property. SectjLon 6: "Developer" shall mean and refer to Cunningham Corner Partnership, a General Partnership, or any successor or assign of Cunningham Corner Partnership, to whom all or substan- tially all of the interest of Cunningham Corner Partnership, in the Property, or the right to develop the Property in accordance with the Development Plan, is assigned. Section 7: "Owner" shall mean and refer to the record Owner, whether one (1) or more persons or entities, of any Lot, including contract purchasers but excluding those having an interest merely as security for the performance of an obligation. Section B: "Common Open Spaces" shall mean and refer to all real property and the improvements presently located or susequently constructed thereon described and designated on the Plat and in the Development Plan for the common use and enjoyment of the Owners. The Developer may retain the legal title to the Common Open Spaces or any portion thereof, until such time as it has sold all Lots within the Property. The Developer hereby covenants and agress that it shall convey all Common Open Spaces to the Association free and clear of all liens and financial encumbrances upon the sale of all such Lots by the Developer. Section 9: "Common Expenses" shall mean and refer to the cost of maintenance and care of the Streets, Buildings, and Common Open Spaces which shall include, by way of example and not limitation, installation and maintenance of common lighting; repairs and reno- vations of any real or personal property owned by the Association and any structures located thereon; casualty, public liability, and other insurance; taxes; special assessments; water charges and other utility fees; repair, maintenance, and renovation of the Buildings and Streets; management and administration costs; wages; legal and accounting fees; operational fees; trash collection charges; expenses and liabilities incurred by the Association pursuant to or by reason of this Declaration or the Articles of Incorporation and By -Laws of the Association; the payment of any deficit remaining from a previous period; the creation of a reason- able contingency, reserve, sinking, or surplus fund; other sums declared Common Expenses by the provisions of this Declaration; and all other sums lawfully assessed by the Association pursuant to the Arrticles of Incorporation and By -Laws of the Association. Section 10: "Mortgage" shall mean and refer to any mortgage deed, deed of trust or other security instrument creating arlien against any Lot; and "Mortgagee" shall mean and refer to any grantee, beneficiary or assignee of a Mortgage. ARTICLE II: MEMBERSHIP AND VOTING RIGHTS Section 1: Members. Every Owner shall be a member of the Association.. Membership shall be appurtenant to and may not be separated from an ownership interest in any Lot. All members shall be subject to and shall abide by these covenants, the Articles of -2- DIN 10 U t rb IJ `I J I Incorporation and By -Laws of the Association, and all rules and regulations adopted by the Board of Directors of the Association and the Architectural Control Committee pursuant to this Declara- tion and the Articles of Incorporation and By -Laws of the Associ- ation. Membership shall pass by operation of law upon the sale of a Lot which may be by deed or installment land contract. Member- ship shall terminate upon such sale but such termination shall not relieve or release any former Owner from any liability or obli- gation incurred as a result of these covenants or in connection with membership in the Association nor shall such termination impair any rights or remedies which the Association or its members may have against such former Owner as a result of a breach of these covenants and the obligations incident thereto. Section 2: Voting Rights. The Association shall have two (2) classes of voting membership: Class A: Class A members shall be all Owners of Lots (excluding the Developer) and shall be entitled to votes equal to one vote for each Lot owned. Class B: The Class B member shall be the Developer which shall be entitled to one vote for each Lot owned within the Property or votes equal to one (1) more vote than all of t-he votes entitled to be cast by Class A members, whichever is greater, so long as the Developer owns any Lot designated on the Plat. Class B Membership shall cease upon written notice from the Developer to the Association or upon the conveyance by the Developer of all Lots designated on the Plat. When more than one (1) person or entity holds a beneficial interest in a Lot which shall include an interest by joint tenancy or tenancy in common, all such persons shall be members of the Association and shall be subject to these covenants and the Arti- cles of Incorporation and By -Laws of the Association; but the votes attributable to such Lot shall be cast as such persons among them- selves determine; and no division of the votes attributable to such Lot shall be permitted. ARTICLE III: COMMON OPEN SPACES Section 1: Obligations of the Association. The Association, subject to the rights of the Owners as set forth in this Declara- tion, shall be responsible for the exclusive management and control of the Streets, Common Open Spaces, and all improvements thereon, including furnishings and equipment related thereto, and shall be responsible for the maintenance and repair of.the Streets and Common Open Spaces and all improvements thereon, and shall keep the same in good, clean, attractive, and sanitary condition, order, and repair. Section 2: Owners' Easements of Enjoyment. Subject to the provisions herein, every Owner of a Lot shall have a right and easement of enjoyment in and to all of the Common Open Spaces which right and easement shall be appurtenant to and shall pass with title to every Lot. Any Owner may delegate his right and easement of enjoyment in and to the Common Open Spaces to members of hiss family, his guests, invitees, lessees, tenants, and sub -tenants who shall be subject to the Articles of Incorporation, By -Laws, and rules and regulations of the Association. Section 3:: Limitation on Owners' Easements. The Owners' easements of enjoyment created hereby shall not be exercised in any manner which substantially interferes with the purposes for which the Common Open Spaces are provided or with the right and easement of any other Owner with respect thereto and shall be subject to the following: -3- BKIbbI rbuiir. A. The right of the Association to establish reasonable rules and regulations and to charge reasonable admission and other fees for the use of the Common Open Spaces. B. The right of the Association to suspend the right of an Owner to use the Common Open Spaces for any period during which any assessment against his Lot remains unpaid or for a period not to exceed sixty (60) days for violation of the rules and regula- tions of the .Association by the Owner, members of his family, his guests, invitees, lessees, tenants, or sub -tenants. C. The right of the Association to dedicate or transfer all or any part of the Common Open Spaces to any public agency, authority, or utility for such purposes and subject to such con- ditions as mazy be agreed by the members. No such dedication or transfer shall be effective unless approved by two-thirds (2/3) of the Owners and all of the first Mortgagees. D. The right of the Association to mortgage all or any part of the Common Open Spaces for the purpose of making improve- ments in or repairs to the Common Open Spaces or other property owned by the Association. In the. event of a default under such mortgage, the mortgagee shall have the right, after taking posses- sion of the Common Open Spaces to charge reasonable admission or other fees as a condition to continued use and enjoyment of the Common Open Spaces by the members, and, if necessary, to permit the use and enjoyment of the Common Open Spaces by the general public until the mortgage debt is satisfied; whereupon the pos- session of the Common Open Spaces shall be returned to the Associ- ation and all rights of the members hereunder shall be fully restored. All first Mortgagees of Lots within the Property may, jointly or singly, but shall not be required to, pay any unpaid taxes or other charges which are or may become a lien against the Common Open Spaces and may pay overdue premiums on hazard insurance policies, or :secure new hazard insurance coverage on the lapse of the policy, for the Common Open Spaces, and any first Mortgagees making such payments shall be owed immediate reimbursement therefor from the Association. E. The right of the Association, with the approval of two-thirds (2/3) of the Owners of Lots and all first Mortgagees, to sell, transfer, or convey all or any portion of the Common Open Spaces. F. The right of the Association to permit members of the general public to use the Common Open Spaces and to charge such individuals a reasonable fee for the use of the Common Open Spaces. Section 4: Use of the Common Open Spaces. No Owner shall place any structure whatsoever upon the Common Open Spaces, without the written consent of the Association, nor in any way alter, damage, or injure the Common Open Spaces. No Owner shall deny, directly or indirectly, free access to any part of the Common Open Spaces to any member of the Association or other person entitled to use the Common Open Spaces. The Association shall have the right to make a special assessment upon any Lot in the event the Common Open Spaces or any improvements thereon are damaged or destroyed by an Owner or arty member of his family, his guests, invitees, lessees, tenants, or sub -tenants, for the cost of repairing such damage in a good and workmanlike manner in conformance with the original plans and specifications of the area involved or as the area may have been modified subsequently by the Association. ARTICLE IV: TOWNHOMES' Section 1: Townhome Maintenance: Portions,'of the Property are to be developed by constructing Townhomes on adjoining Lots as -4- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE CITY OF FORT COLLINS, COLORADO a municipalorpora io City Manager ATTEST: )alkv� 1� - ". - City Clerk ;APPROVE S TO FORM: istant City Attorney State of Colorado ) ) ss. County of Larimer ) Subscribed and sworn to before me this 19th day of Septemher , 19 86 , by Rich Shannon Witness my hand and official seal. My commission expires: October 28 1989 IT otary Public ATTEST: --zi Ronald Lustig, Secr tary METCALF, Ltd. By: Sibbald/Lustig Company General Partner By: Thomas Sibbald, President - 2 - dr% I u 0 1 ru u-i %1 .1 described and designated on the Plat and in the Development Plan. Such Townhome Units shall consist of individual living units on separate Lots joined with similar units on adjacent Lots by common walls (hereinafter referred to as "Townhome Units"). The Associ- ation shall be responsible for the maintenance and care of the exterior of all Townhome Units. The cost of such maintenance and repair shall be assessed as a general assessment as hereinafter provided. Section 2: Easements. The Association shall have a non-exclusive right and easement, over and across all Lots upon which Townhome Units are to be constructed as designated on the Plat and in the Development Plan, for the purpose of performing exterior maintenance and repair to such Townhome Units by the Association. The Associa- tion shall, after reasonable notice to the Owners of such Lots have the right, exercising due care, to enter upon such Lot and if necessary, the roof and exterior of any Townhome Unit or other structure upon such Lots for the purpose of performing exterior maintenance and repair to the Townhome Units. Section 3: Common Walls. Owners of Townhome Units shall own common walls jointly with the Owner of the adjacent Unit, each having an undivided one-half (1/2) interest in the common wall, and shall be jointly and equally responsible for the maintenance of the common wall. No Owner shall undertake any work in his Townhome Unit which would jeopardize the soundness or safety of the common walls between his Unit and adjacent Units, reduce the value thereof, or impair any easement thereon without the consent of the Owners of the adjacent Units. Structural alterations shall not be made by an Owner to his Townhome Unit without the prior written consent of the Board of Directors and the Owners of adjacent Units first having been obtained. The Association, and each Owner of a Townhome Unit, shall have an easement, which may be exercised for any Owner by the Association or its agent, for access through adjacent Townhome Units, from time to time,.during such reasonable hours as may be necessary for the maintenace, repair or replacement of all or any portion of the common wall separating such Units or for making emergency repairs thereto necessary to prevent damage to either of the adjacent Townhome Units. Damage to the interior or any part of A Townhome Unit resulting from the maintenance, repair, emergency repair or replacement of all or any portion of the common walls within any Townhome Unit shall be a Common Expense of the Owners of the Townhome Units sharing such common walls. No diminution or abatement of the general assessment shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or improvements to common walls or from action taken to comply with any law, ordinance or other governmental authority. Restoration of the damaged common wall shall be in substantially the same condi- tion as it existed prior to the damage. Section 5: Liens. No labor performed or materials furnished with the consent of or at the request of an Owner or his agent shall be the basis for the filing of a lien pursuant to law against the Lot or other property of an adjacent Lot Owner not expressly consenting to or requesting the same, and each Owner shall indemnify and hold adjacent Lot Owners harmless from and against liability or loss arising from the claim of any lien against the adjacent Lot Owners, or any part thereof, for labor performed or materials* furnished in work on such Owner's Lot, except that express consent_ shall be deemed given by the Owner of any Townhome Unit to the Association in the case of emergency repairs. At the written request of an adjacent Owner, the Association shall enforce such indemnity by collecting from the Owner of the Lot on which the labor was performed and materials furnished the amount necessary to discharge any such lien and all costs incident thereto, including reasonable attorneys' fees. If not promptly paid, the Association may proceed to collect the same in the manner provided herein for collection of assessments, for the purpose of discharging the lien. -5- U1% 1 0 o( rU u i o 9 Section 6: Encroachments. If any part of a Townhome Unit encroaches or shall hereafter enroach upon an adjacent Lot the Owner of that Townhome Unit shall and does have an easement for such encroachment and for the maintenance thereof. Such encroachments shall not be considered to be encumbrances on adjacent Lots. Encroachments referred to herein include, but are not limited to, encroachments caused by error in the original construction of any Townhome Unit by settling, rising or shifting of the earth, or by changes in position caused by repair or reconstruction of any such Townhome Unit. Section 7: Obsolescence. The Owners of all Townhome Units within any one Building may agree that the Townhome Units are obsolete and adopt a plan for the renewal and reconstruction of such Units, which ;plan shall have the unanimous approval of all first Mortgagees of record at the time of adoption of such plan. If a plan for renewal or reconstruction is adopted, the expenses thereof shall be payable equally by all Owners of the Townhome Units to be reconstructed. ARTICLE V: COVENANTS FOR MAINTENANCE; ASSESSMENTS Section 1: Covenant for Maintenance. The Developer hereby covenants and each Owner of any Lot by acceptance of a deed thereof, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay general assessments and special assess- ments for capital improvements which shall be established and collected by the Association as hereinafter provided. Section 2: General Assessments. A. Purpose of Assessment. The general assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the Owners of Lots within the Property and, in particular, for the improvement, main- tenance and operation of the Streets, Buildings, Common Open Spaces and any improvements thereon and for the payment of Common Expenses. It shall be mandatory for the Board of Directors to establish, out of the general. assessments, a contingency or reserve fund for the repair, and maintenance of the Streets, Buildings, Common Open Spaces and all. improvements located thereon which must be repaired or replaced periodically. B. Method of Assessment. The Board of Directors of the Association shall fix the total general assessment for each year which assessment shall be sufficient to meet the obligations imposed upon the Association by this Declaration. The Board shall provide for collection of annual assessments in monthly installments due in advance on the first day of each month; provided, however, that upon default in the payment of any one (1) or more monthly installments, the entire balance of the annual assessment may be accelerated at the option of the Association and be declared due and payable in full. The,Board of Directors shall prepare and deliver or mail to eAch Owner an itemized annual statement showing the various esti- mated or actual expenses for which the assessments are made. Any. Owner or Mortgagee may inspect the Association's records of receipts and expenditures at convenient weekday business hours. ' C. Basis for Assessment. The amount of the assessment which shall be paid by each Owner of a Lot shall be determined by dividing the total general assessment, as determined by the Board of Directors of the Association, by the total number of Lots within the Property; and the Owner of each Lot shall pay his proportionate share of said total general assessment based upon the number of Lots owned. No amendment to this Declaration shall alter the ratio of assessments against Lots and Owners as herein established without the approval of two-thirds (2/3) of the Owners and all first Mortgagees 6K I y b 1 rL; i"i J D. Commencement of Assessment. The general -'assessment provided for herein shall commence at the time of conveyance of the first Lot from the Developer. The Board of Directors of the Asso- ciation shall. fix the amount of the initial annual assessment as hereinabove provided. Section 3: Special Assessments for Capital Improvements. Ir, addition to the general assessments authorized hereinabove, the Association may levy in any assessment year a special assessment applicable to that year and not more than the next four (4) suc- ceeding years for the purpose of defraying, in whole or in part, the costs of any construction, reconstruction, repair, or replace- ment of the Streets or a capital improvement upon the Common Open Spaces including fixtures and personal property related thereto; provided, however, that any such assessment shall have the assent of two-thirds (2/3) of the votes entitled to be cast by members of the Association. Each Owner shall be assessed his proportionate share of any special assessments for capital improvements in the manner provided hereinabove for the apportionment of the general assessments. Section 4: Exempt Property. All property dedicated to and accepted by a local public authority and all property owned by a charitable or non-profit organization exempt from taxation by the laws of the United States or the State of Colorado shall be exempt from the assessments created herein. However, no lands or improve- ments devoted to residential use shall be exempt from said assess- ments. Section 5: Lien for Nonpayment of Assessments. It shall be the duty of each Owner of a Lot to pay his proportionate share of the general and special assessments and any and all other assess- ments levied by the Association when due, and the amount thereof shall constitute a lien on that Owner's Lot as set forth in the deed of conveyance to said Owner; and upon the recording of notice thereof by the Association, such lien shall be constituted upon such Owner's :interest in said Lot prior to all other liens and encumbrances, recorded or unrecorded, except (a) taxes, special assessments, and special taxes theretofore and thereafter levied by any political subdivision or municipal corporation of this State, any other state, or federal taxes which by law are a lien on the interest of such Owner prior to pre-existing recorded encumbrances thereon, and (b) all sums unpaid on a first Mortgage of record, including all unpaid obligatory sums as may be provided by such encumbrance, and including additional advances made thereon prior to the arising of this lien. Section 6: Evidence of Lien. To evidence such lien for unpaid assessments, the Asso— cia ion shall prepare a written notice setting forth the amount, the name of the Owner of the Lot and a description of the Lot. Such notice shall be signed on behalf of the Association by an officer of the Association and shall be recorded in the Office of the Clerk and Recorder of the County of Larimer, State of Colorado. Such lien shall attach from the date of recording'in the Office of the Clerk and Recorder and may be foreclosed by foreclosure by the Association of the defaulting Owner's Lot in like manner as mortgages on real property. The lien provided for herein shall be in favor of the Association and for the benefit of: all of the members of the Association. In any such foreclosure, the Owner shall be required to pay all costs and expenses of such proceedings; the costs, expenses, and attorneys' fees for filing the notice and claim of lien; and all reasonable attorneys' fees incurred by the Association in connection with such foreclosure. The Owner shall also be required to pay to the Association any assessments due and owing during the period of foreclosure, and the Association shall be entitled to the appoint- ment of a receiver to collect the same. The Association, on behalf of its members, shall have the power to bid on the Lot at`the foreclosure sale and to acquire, hold, lease, mortgage, and convey UNIy01 rGU4S6 the same. The Association shall provide each first Mortgagee with written notice of any default in the payment of any assessment on such Mortgagees' Lot which is not cured within sixty (60) days. The Association shall also send to each first Mortgagee a copy of the notice of lien provided for herein. Any encumbrancer holding a lien on a Lot may, but shall not be required to, pay any unpaid assessments due an owing with respect thereto; and upon such payment, such encumbrancer shall have a lien on such Lot for the amount paid of the same rank as the lien of his or its encumbrance. Section 7: Personal Obligation to Pay Assessments. Assess- ments made by the Association against each Owner of a Lot shall be the personal and individual obligation of the Owner at the time the assessment is made. Suit to recover a money judgment for unpaid assessments shall be maintainable without foreclosing or waiving the lien securing the same. No owner may exempt himself from payment of general or special assessments by waiver of the use or enjoyment of the Common Open Spaces or abandonment of his Lot. Section 8: Liability of Grantee. The Grantee of a Lot, except a first Mortgagee who acquires a Lot by foreclosure or by a deed in lieu of foreclosure, shall be jointly and severally liable with the grantor for all unpaid 'assessments against the Lot assessed and due prior to the time of grant or conveyance without prejudice to the grantees' right to recover from the grantor the amounts paid by the grantee; provided, however, that upon payment of a reason- able fee not to exceed Twenty Dollars ($20) and upon written request any such prospective grantee shall be entitled to a statement from the Association setting forth the amount of the unpaid assessments, if any, with respect to the subject Lot the amount of the current assessment, the period covered by the current assessment, the date the current assessment comes due, and the amount of any credit for advance payments or for prepaid items. Said statement shall be conclusive upon the Association. Unless such request for a state- ment of indebtedness shall be complied with by the Association within ten (1.0) days of such request, such grantee shall not be liable for, nor shall the Lot be conveyed subject to, the lien for any unpaid assessments against the subject Lot. Any first Mort- gagee who acquires a Lot by foreclosure of its Mortgage or by deed in lieu of foreclosure shall acquire title to such Lot free and clear of any lien for Common Expenses arisinq prior to the date upon which such first Mortgage receives a deed to the Lot. Section 9: Assessment Reserve. The Association may require an Owner, other than the Developer, to deposit with the Association up to an amount equal to one-fourth (1/4) of the amount of the estimated annual assessment, which sum shall be held, without interest, by the Association as a reserve to be used for paying such Owner's monthly installments and for working capital. Such an advance payment shall not relieve an Owner from makinq the regular monthly installment of the general assessments as the same come due. Upon the transfer of his Lot, an Owner, shall be entitled to a credit from his assignee or sub -lessee for any unused portion thereof. ARTICLE VI: ARCHITECTURAL CONTROL Section 1: Architectural Control Committee. An Architectural Control Committee (hereinafter referred to as "the Committee") is hereby established and shall be composed of Gil Ellerby and Gary Nordick,whose address for purposes of this Declaration, is 2000 Union Drive, Fort Collins, Colorado. A majority of the Committee may designate a representative to act for it. In the event of death or resignation of any member of the Committee, the remaining members shall have full authority to designate a successor. Neither the members of the Committee nor its designated representative shall be entitled to any compensation for services performed pursuant to this Declaration. Upon the sale by the Developer of all`Lots de- do I zi u i rb I, 7 J r signated on the Plat, the members of the Board of Directors of the Association shall serve as the Architectural Control Committee. Section 2: Approval. The Committee shall regulate the external design, appearance, use. location, and maintenance of the Property and of any improvements thereon. No alterations, repairs, change of paint colors, excavation, changes in grade, or other work which in any way alters the exterior of any Lot or the improvements located thereon, from its natrual or improved state existing on the date such Lot. was first conveyed by the Developer to an Owner shall be made or done without the prior approval of the Committee, unless otherwise expressly provided in this Declaration. No building, fence, wall, residence, structure or other improvement shall be erected, constructed, altered, or improved on any Lot until the construction plans and specifications and a plot plan, showing the location of the improvement, have been approved by the Committee as to the quality of workmanship and materials, harmony of external design with existing structures, location with respect to topo- graphy, finished grade elevations, and relationship to existing setback lines. Such plans and specifications shall also include the exterior surfaces and colors to be used in construction. The exterior surfaces of all Buildings and other structures shall be natural earth colors. In deciding whether to approve or disapprove plans and specifications submitted to it, the Committee shall use its best judgment to insure that all improvements, construction, landscap- ing, and alteration on any portion of the Property conform to and harmonize with the general plan of development as outlined in the Development Plan and with other structures presently constructed or planned for construction with the Property. The Committee may adoot development guidelines to inform Owners of the specific standards which will be applied in approving or disapproving pro- posed construction. Such guidelines may amplify but may not be less restrictive than the regulations and restrictions stated in this Declaration. Such guidelines shall include the rules and regulations of the Committee with respect to the submission of plans and specifications for approval, the time or times within which such plas or specifications must be submitted, and may state such other policies which the Committee will consider in approving or disapproving proposed construction of, or alternative to, Build- ings and other structures within the Property. Section 3: Procedures. An application together with plans and specifications for any such improvement, alteration, repair, or construction shall be submitted to the Committee which shall approve or disapprove such plans and specifications in writing within thirty (30) days after the submission to the Committee of all plans and specifications required by the Committee. In the event the Committee fails to approve or disapprove the plans and specifications submitted to it within said thirty (30) day period, then such approval shall not be required and shall be deemed to have been given. However, no Building or other structure shall be erected or allowed to remain on any Lot which violates any of the covenants or -restrictions contained herein. An applicant may appeal any adverse decision of the Committee to the membership of the Association which may reverse or modify such decision by a two- thirds (2/3) vote of all votes entitled to be cast by members.,of the Association. Section 4: Building Location. No Building shall be erected, altered, placed or permitted to remain on any Lot or group of Lots except as expressly permitted and designated in the Development Plan. . ME DRIUO1 rt;uy1 Section 5: Construction of Buildings. Construction of a Building upon any Lot or group of Lots as designated on the Plat and in the Development Plan shall commence within two (2) years from the date said Lots are first sold or -transferred from the Developer and shall be completed within a reasonable time thereafter. In the event construction is not commenced within said two (2) year period, and completed within a reasonable time thereafter, the Developer shall have the right to repurchase the Lot from the then Owner of said Lot at the original purchase price paid by the initial pur- chaser to the Developer for such Lot without interest thereon. Section 6: Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept on any portion of the Property or on any Lot, except shall dogs weighing thirty-five (35) pounds or less, cats and other similar household pets, may be kept on any Lot, provided that. such household pets are not kept, bred or maintained for any commercial purpose. Such household pets shall be subject to the rules and regulations adopted by the Association and any govern- mental ordinances or laws that are applicable to the Property. Dogs shall be kept. within a fenced area of the Lot or leashed at all. times when outside such fenced area. Household pets or other animals constituting a nuisance or kept on a Lot or within the Property in violation of this Declaration or the rules and regula- tions of the Association may be ordered removed from the Property by the Association. A written notice requesting such removal and the reasons thereof shall be personally served upon the Owner of the Lot upon which such animals are kept, or sent by registered or certified mail to the last known address of such Owner as indicated by the records of the Association (any such notice or other order provided for herein shall be deemed given when so mailed). Such notice shall designate a time and place for a hearing before the Board of Directors to consider the expulsion of such pet or animal from the Property. The Owner of the Lot and the owner of the pet in question shall have the right to be present and heard at such hearing. If after such hearing, the Board of Directors determines that the pet or animal in question should be removed from the Property, it shall so order which order shall be personally served upon the Owner of the Lot on which such pet or animal is kept or sent by registered or certified mail to the last known address of such Owner as indicated by the records of the Association. If the Owner shall fail or refuse to remove such pet or animal within ten (10) days after the personal delivery or mailing of such order as hereinabove provided, the Association shall have the right to remove the same without liability to the owner of the pet or the Owner of the Lot in question and any expenses incurred in connection with such removal shall be charged against the Owner of the Lot upon which such animals were kept and shall be collectible in the same manner as a general or special assessment upon such Lot as hereinabove provided. The Association reserves the right to restrict the number, size, and species of household pets that may be kept or maintained on any Lot and shall adopt rules and regulations relating to the presence of such household pets within the Common Open Spaces. Section 7: Advertising. No advertising, signs, or billboards, except signs offering a Lot for sale, nor other unsightly objects of nuisances shall be erected, placed, or permitted to remain in or on any portion of the Property without the express written consent of the Committee. No business activity of any kind whatsoever shall be conducted on any portion of the Property. Section :B: Mineral Extraction. No oil drilling, oil develop- ment operations, oil refining, quarrying, mining operations, or other mineral extraction of any kind shall be conducted on any Lot -10- BK{ Sb I M+1 `1 J y or other portion of the Property by the Developer or any person or entity acquiring an interest in the Property or a Lot subsequent to the recording of this Declaration in the Office of the Clerk and Recorder of Larimer County, Colorado. Section 9:: Sight Distances at Intersections. No fence, wall, hedge or shrub planting, which obstructs sight lines at elevations between two (2) and six (6) feet above the Streets shall be placed or permitted to remain on any corner Lot within the triangular area formed by the street property lines and a line connecting them at points twenty-five feet (25') from the intersection of the street lines, or, in the case of a rounded property corner, from the intersection of the street property lines extended except as speci- fically permitted or required by the City Council of the City of Fort Collins, Colorado in the Development Plan or any landscape plan approved for the Property. The same sight -line limitation shall apply on any Lot within ten (10) feet from the intersection of a street property line with the edge of a driveway, alley -way, or Common Open Space area. No trees shall be permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines. Section 10: Commercial Vehicles. No commercial vehicles except pickup trucks as defined by the Committee shall be stored or parked upon any Lot or other portion of the Property except in a closed garage or in areas designated by the Committee; nor shall such vehicles be parked on any Street except while engaged in transport to or, from a building or other structure. Section 11.: Unused Vehicles. Unused automobiles or other vehicles of any kind, including by example and not limitation, farm equipment, campers, trailers, boats, mobile homes and unused motor- cycles shall not be stored or parked on any Lot or other portion of the Property except in a closed garage or in areas designated by the Committee. The Committee shall have the right to require berming, fencing or other screening around any such permitted storage area. Unused vehicles shall not be parked on any Street. Unused vehicle shall be defined as.any vehicle which has not been driven under its own propulsion for a period of seventy-two (72) hours or longer. A written notice requesting such removal and the reasons thereof shall be personally served upon the Owner of the vehicle or the Owner of the Lot upon which such unused vehicles are kept, or sent by registered or certified mail to the last known address of such Owner as indicated by the records of the Associ- ation (any such notice or other order provided for herein shall be deemed given when so mailed). Such notice shall designate a time and place for a. hearing before the Board of Directors to consider the expulsion of such unused vehicle from the Property. The Owner of the Lot and the owner of the unused vehicle in question shall have the right to be present and heard at such hearing. If after such hearing, the Board of Directors determines that the unused vehicle in question should be removed from the Property, it shall order the Owner of the vehicle or of the Lot in question to remove said vehicle which order shall be personally served upon the Owner of the vehicle or the Lot on which such unused vehicle is kept or sent by registered or certified mail to the last known address of such Owner as indicated by the records of the Association. If*the Owner shall fail or refuse to remove such unused vehicle within seventy-two (72) hours after the personal delivery or mailing of such order as hereinabove provided, the Association shall have the right to remove the same without liability to the owner of the. unused vehicle or the Owner of the Lot in question and any expenses incurred in connection with such removal shall be charged against the Owner of the vehicle or the Lot upon which such unused vehicle was kept and shall be collectible in the same manner as a general or special assessment upon such Lot as hereinabove provided. Section 121: Recreational Vehicles. No automobile, pickup truck motorcycle, mini -bike, moped, snowmobile, or other motor driven vehicle on10o1 ruiiyb11 may be operated on any portion of the Common Open Spaces for access to a Lot, recreational purposes or any other purpose. Section. 13: Garba(;e and Refuse. No Lot or other portion of the Property may be used or maintained as a dumping ground for rubbish, trash, garbage, or other waste and the same shall be disposed of in a sanitary manner. All containers or other equip- ment for the -storage or disposal of garbage and trash shall be kept in a clean and sanitary condition. Trash containers for each Lot shall be kept within its appurtenant garage or other area desig- nated by the Committee except during days designated for pickup and disposal. The Committee shall have the right to require berming, fencing or other screening around any such permitted storage area. The burning of trash in outside incinerators, barbeque pits, or other structures is prohibited. Section 14: Temporary Structures. No structure of a tem- porary character, trailer, mobile home, basement, tent, camper, shack, garage, or accessory building shall be used on any Lot for human habitation during construction of a Building or at any other time. Section 15: Storage. I70 tanks for the storage of gas, fuel oil, or other matter shall be erected, placed or permitted on any Lot. No clothesline equipment, service yards, wood piles, or storage areas shall be permitted on any Lot or other portion of the Property without the approval of the Committee which may require enclosures such as privacy fences or other types of screening such as landscaping and berming, so as to conceal such areas from the view of neighboring Lots or adjacent Streets. Section 16: Lot Lighting. The Committee may adopt appro- priate standards for the liyhting of all Lots in conformance with the Development Plan. No exterior yard lights shall be permitted on any Lot which are offensive to neighboring Lot Owners. Section 17: Resubdivision. No Lot shall be resubdivided into smaller Lots nor conveyed or encumbered in any less than the full original dimensions as indicated on the Plat. This restriction shall not prevent the conveyance or encumbrance of adjoining or contiguous Lots or parts thereof in such manner as to create par- cels of land having a greater street frontage than the street frontage of either of the Lots shown on the Plat. Nothing herein contained shall prevent the dedication or conveyance of portions of Lots for additional easements for public utilities, nor prevent the Developer from replatting all or any portion of the Property. Section 18: Maintenance of Lots. Any Building completed on any Lot or group of Lots betweeen May 1st and September lst of any year shall have the yard brought to grade, and the lawn seeded and the landscaping installed as indicated in the Development Plan, the same year. All Buildings completed in other months shall seed the lawn to grass and install the landscaping within a reason- able time after such completion. All Owners of'Lots shall cut and control all weeds and vegetation growing on all Lots, whether vacant, occupied, under construction or fully improved and shall otherwise maintain and care for all landscaping within bis Lot. In the event the Association is not satisfied with the level of maintenance of any landscaping, or other structure situated upon a Lot, it shall so notify the Owner in writing, stating the reason thereof, which notice shall be personally served upon the Owner of the Lot or sent by registered or certified mail to the last known address of such Owner as indicated by the records of the Associ- ation (any such notice or other order provided for herein shall be deemed given when so mailed). The notice shall designate a time and place for a hearing before the Board of Directors to consider the maintenance of the Lot in question or the improvements thereon. The Owner of said Lot shall have the right to bey present and heard -1 2- UN y0 1 ruu -I u i at such hearing. if after such hearing the Board of Directors determines that the landscaping or other structure situated upon a Lot is not being properly maintained, it shall order that such maintenance or repairs be performed by the Owner within thirty (30) days after such hearing. Such order shall be personally served upon the Owner of the Lot or sent by registered or certified mail to the last known address of such Owner as indicated by the records of the Association and shall state in detail the maintenance or repairs that must be completed to bring the landscaping or other structure situated upon the Lot up to a level of maintenance accept- able to the Committee. If the Owner has failed to bring the Lot to an acceptable level of maintenance within said thirty (30) day period, or has not commenced said maintenance or restoration within said thirty (30) day period and proceeded to completion of such maintenance or restoration within a reasonable period of time thereafter, the Committee, or its designated employee or agent may perform, the necessary repair, maintenance and restoration; and all costs related to such repair, maintenance and restoration shall become a special assessment upon such Lot which assessment shall be collectible by the Association as hereinabove provided. Section 19: Planting or Gardening. No planting or gardening shall be permitted on any portion of the Common Open Spaces except as designated :in the Development Plan or as approved by the Committee. Section 20: Antennas. No exterior television or radio antennas of any sort shall be placed, allowed, or maintained upon any portion of any improvement or other structure located upon a Lot or any other portion of the Property. Section 21: Fences. No fences, hedges, or walls shall be erected or maintained on any Lot or other portion of the Property except as are installed by the Association or approved by the Committee. The Committee may require fences to be constructed on all Lots of uniform size and material. All fences shall be natural earth colors. The Association may construct such fences and assess the cost thereof as a common expense or may require the Owner of each Lot to construct such fence. Section 22: Liability. Neither the Board of Directors nor the Committee shall be liable for damages by reason of any action, inaction, approval, or disapproval by it with respect to any request made pursuant to this Article or the enforcement of any provision of this Declaration. ARTICLE VIZ: USE OF PROPERTY Section 1: Residential Use. All and devoted exclusively for residential wholesale, manufacturing, or other type offices, of any kind shall be permitted which may be or may become an annoyance on upop any Lot. or other portion of the Lots shall be used, improved, purposes. No retail, of business on any Lot. or nuisance Property. ARTICLE VIII: EASEMENTS or professional No activity shall be carried Easements for installation and maintenance of Streets, utili- ties, irrigation ditches, and drainage facilities are hereby expressly reserved as designated on the Plat. Within said ease- ments, no structure, landscaping, or other material shall be placed or permitted to remain which may damage or interfere with the installation or maintenance of utilities or which may change the direction or flow of drainage channels in'said easements or which may obstruct or retard the flow of water through drainage channels in said easements. The easement area within each Lot shall be landscaped and maintained by the Owner of said Lot except such improvements for which a public authority or utility company is responsible. -13- Ui% I U f fv ij The Association and the Committee shall have an easement and right of access over and across all Lots and the Common Open Spaces for the purpose of enforcing the terms, covenants, and conditions of this Declaration. ARTICLE IX: RESPONSIBILITY OF THE DEVELOPER Section 1: Developer's Work. The Developer is undertaking the work of developing a planned residential community in accord- ance with the Development Plan. The completion of that work and the sale and other disposal of the Lots is essential to the welfare of the Property. In order that said work may be completed and the Property developed as a planned residential community, nothing herein contained shall: A. Prevent the Developer, his contractors, or his sub- contractors from doing on the Property or on any Lot whatever is reasonably necessary or advisable in connection with the completion of said work; or B. Prevent the Developer or his representatives from erecting, constructing, and maintaining on any portion of the Property such structures as may be reasonably necessary for the conduct of his; business in completing said work and establishing the Property as a planned residential community and disposing of the Lots by sale or otherwise; or C. Prevent the Developer from maintaining such signs on any part of the Property as may be necessary for the sale or disposition thereof. ARTICLE X: INSURANCE The Board of Directors shall obtain and maintain at all times, to the extent obtainable, policies of insurance involving standard premium rates, established by the Colorado Insurance Commissioner, and written with companies licensed to do business in Colorado and having a Best's Insurance Report rating of A & XV, covering the risks set forth below. The types of coverage to be obtained and risks to be covered are as follows: A. Fire insurance, if appropriate, with extended coverage and risk endorsements, which endorsements shall include endorsements for vandalism, malicious mischief, and machinery with the minimum endorsement amount of Fifty Thousand Dollars ($50,000) per acci- dent/per location. Said casualty insurance shall insure the Common Open Spaces and all improvements located thereon together with all service equipment contained therein in an amount equal to the full replacement value, without deduction for depreciation. The pro- ceeds of any insurance award shall be used by the Association to repair or replace the damaged Property or improvements. i B. ;Public liability and property damage insurance in such limits as the Board of Directors may from time to time deter- mine, but not in an amount Less than five Hundred Thousand Dollars ($500,000) per injury, per person, per occurrence, with an umbrella limit of One Million Dollars ($1,000,000) per occurrence, covering claims for bodily injury or property damage. Coverage shall include without limitation, liability for personal injuries, operation of automobiles on behalf of the Association, and activi- ties in.connection with the ownership, operation, maintenance and other use of the Common Open Spaces. C. Workmen's compensation and employer liability insur- ance and all other similar insurance with respect to employees of the Association in the amounts and in the forms now or hereafter required by law. -ld- State of Colorado ) ) ss. County of Larimer ) Subscribed and sworn to before me this t&IKday of 19 �4-, by Thomas Sibbald, President of Sibbald/ Witness my hand and official seal. My commission expires: ,),I - kL, ���lIL�.�,2t' 1 � � � CQir� c s✓ Notary Public - 3 - urx I u b I rb U 1 0 1 D. '1:'he Association shall purchase, in an amount not less than one hundred percent (100%) of the Association's estimated annual operating expenses and reserves, fidelity coverage against dishonesty of Employees, destruction or disappearance of money or securities and forgery. Said policy shall also contain endorsements thereto covering any persons who serve the Association without compensation. E. The Association may obtain insurances against such other risks of a similar or dissimiliar nature as it shall deem appropriate with respect to the Property including insurance on any personal property of the Association located thereon. Owners may carry other insurance for their benefit and at their expense, provided that the liability of the carriers issuing insur- ance obtained by the Board of Directors shall not be effected or diminished by reason of any such additional insurance carried by any Owner. No Owner and no Owners' guests, invitees, tenants or sub- tenants shall do anything or cause anything to be kept in or on the Property which might result in an increase in the premiums of insurance obtained for the Common ,Open Spaces or which might cause cancellation of such insurance without the prior written consent of the Association first having been obtained. ARTICLE XI: CONDEMNATION Section 1: Consequences of Condemnation. If at any time or times during the continuance of: this Declaration, all or any part of the Common Open Spaces shall be taken or condemned by any public authority or sold or otherwise disposed of in lieu of or in advance thereof, the provisions of this Article shall apply. The Associ- ation shall give written notice to all first Mortgagees of the commencement of any condemnation action affecting any portion of the Common Open Spaces within ten (10) days of the date the Association receives notice of such action. Section 2: Proceeds. All compensation damages or other proceeds therefrom, the sum of which is hereinafter referred to as "the Condemnation Award," shall be payable to the Association. In the event that all or any portion of the Common Open Spaces is taken or condemned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the Condemnation Award shall be used for the purpose of purchasing additional Common Open Spaces, for the con- struction of improvements on the remaining Common Open Spaces, or for any other purpose determined by the Board of Directors to promote the recreation, health, safety and welfare of the Associ- ation and its members. If an allocation of the Condemnation Award is already established in negotiations, judicial decree or other- wise, then the Association shall employ such allocation to the extent it is relevant and applicable. ARTICLE XII: GENERAL PROVISIONS Section 1: Duration. The covenants and restrictions of this Declaration shall run with and bind the land for a period of thirty (30) years from the date this Declaration is recorded in the Office of the Clerk and Recorder of the County of Larimer, State of Colorado, after- which time they shall be automatically extended for successive periods of ten (10) years unless terminated by an instrument signed by Owners of two-thirds (2/3) of the Lots and all first Mortgagees. Any such instrument must be recorded in the Office of the Clerk and Recorder of the County of Larimer, State of Colorado. -15- UI\ I Z) U i f u i i 7 o Section 2: Amendment. Except as otherwise provided in this Declaration, this Declaration may be amended at any time by an instrument approved by two-thirds (2/3) of the votes entitled to be cast by members of the Association; provided, however, that Section 6 of this Article hII may be amended only with the consent of the City of Fort Collins, Colorado, or other governmental authority having jurisdiction over the property at the time of such amendment. Any such instrument must be recorded in the Office of the Clerk and Recorder of the County of Larimer, State of Colorado. Section 3: Enforcement. Enforcement of this Declaration and these covenants, conditions, and restrictions shall be by appro- priate proceedings at law or in equity against those persons vio- lating or attempting to violate any covenant or covenants. Such judicial proceeding shall be for the purpose of removing a viola- tion, restraining a future violation, for recovery of damages for any violation, for recovery of assessments due, or for such other and further relief as may be available. Such judicial proceeding may be prosecuted by any Owner or by the Association on behalf of its members and the Association may assess the costs of such pro- secution as a Common Exoense. The failure to enforce or to cause the abatement: of any violation of this Declaration shall not pre- clude or prevent the enforcement thereof of a future or continued violation whether such violation shall be of the same or of a different provision within these covenants. Section 4: Severability. Invalidation of any one (1) of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section S: Limitations on the Association. So long as the. Developer owns any Lot as designated in the Development Plan the Association may not use its resources or take a public position in Opposition to the general'plan for development of the Property as provided in the Development Plan. Nothing in this section shall be construed to limit the rights of the members acting as individuals or in affiliation with other members or groups. Unless two-thirds (2/3) of the Owners and all first Mortgagees of Lots within the Property have given their prior written approval, the Association shall not be entitled to: A. By actor omission seek to abandon, partition, sub -divide, encumber, sell or transfer all or any portion of the Common Open Spaces (the granting of easements for public utilitites and for other public purposes consistent with the intended use of the Common Open Spaces by the Association shall not be deemed a transfer within the meaning of this clause); B. Change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner; C. By act or omission change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to the architectural design or exterior appearance of Buildings or ol5-her structures, the exterior maintenance of such Buildings the main- tenance of the Common Open Spaces, common walks, common fences, or the upkeep of lawns and planting within the Property; D. Fail to maintain fire and extended coverage insurance on insurable Association Property on a current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value (based on current replacement costs)- E. Use hazard insurance proceeds for losses to any Association Property for other than the repair, replacement or reconstruction of such Property. -16- ON I zJ 0 1 r1i u -1 U ,) Section 6: Management of the Common Open Spaces. "The Associ- ation (a) may obtain and pay for the services of a managing agent to manage its affairs, or any part thereof, to the extent it deems advisable as well as such other personnel as the Association shall determine to be necessary or desirable for the proper management, operation and maintenance of the Streets, Common Open Spaces, Townhome Units and any other portion of the Property which is the responsibility of the Association, whether such personnel are furnished or employed directly by the Association or by any person with whom or which it contracts; provided, however, that any contract in regard to the hiring or employing of such a managing agent or other personnel. shall not be for a term in excess of three (3) years and shall. provide that the same shall terminate on sixty (60) days written notice with or without cause and without. payment of any termination fee; (b) may obtain and pay for legal and accounting services necessary or desirable in connection with the operation of the Project or the enforcement of this Declaration. Section 7: Provision for Maintenance by the City of Fort Collins, Colorado. As part of the development plan the Developer has submitted, and the City of Fort Collins, Colorado (hereinafter referred to as "the City") has approved, a plan for the landscaping of the Common Open Spaces (hereinafter referred to as "the Landscape Plan"). The Developer hereby agrees to install all grass, shrubs, bushes, trees, and other landscaping in accordance with the Landscape Plan. The Developer shall commence installation of such landscaping within each tract of the Common Open Spaces within a reasonable time after completion of construction of the Townhome Units adjacent to such tract and shall proceed in good faith to complete such Landscaping within a reasonable time thereafter. (For purposes of this section, the Townhome Units constructed on Lots 1 through 4 inclusive shall be considered to be adjacent to Tract A, the Townhome Units constructed on Lots 5 through 13 inclusive, shall be considered to be adjacent to Tract B, and the Townhome Units constructed on Lots 14 through 20 inclusivo, shall be considered.to be adjacent to Tract C.) Upon installation of the landscaping by the Developer, the Association shall be responsible for the continuing maintenance and care of all, landscaping in accordance with the Landscape Plan and shall further be responsible for the general maintenance and care of the Common Open Spaces. All landscaping shall be maintained by the Association in a good and husbandlike manner which shall include, by example and not limitation, the replacement of dead trees and shrubs as necessary. In the event the City shall determine that the Developer has failed to install, or the Association has.failed to maintain, the landscaping in accordance with the Landscape Plan, which determin- ation shall be made by the City arborist and shall not be capricious or unreasonable., the City shall so notify the Developer or the Association in writing who shall install or restore the landscaping in accordance with the Landscape Plan. If the Developer shall fail tosinstall or -the Association shall fail to restore, the landscaping in accordance with the Landscape Plan within thirty (30) days after receipt of such notice or to commence such installation or restoration within twenty (20) days after receipt of such notice and continue thereafter to use due diligence to complete such restoration, then the City shall have the right to enter upon the Property and perform the work necessary to install or restore the landscaping in accordance with the Landscape Plan and the Developer shall pay to the City such reasonable sums as are necessary to install such landscaping, or the Association shall pay to the City such reasonable sums as are necessary to pay for the labor and materials expended by the City in restoring the landscaping, in accordance with the Landscape Plan. Said payment shall be made to the City within thirty (30) days after receipt of a statement for the cost of labor and materials expended by the City. In the event it becomes necessary for the City to install or restore the landscaping in accordance with the Landscape Plan and in the event the Developer or the Association -17- U1% t a v I r u t1 1 p h shall fail to reimburse thL' City for the cost of labor and materials expended in completing such installation and restoration, the City shall have a lien upon that tract of the Common Open Space upon which installation or restoration was made and upon the recording of notice thereof by the City, such lien shall be constituted upon such tract so :improved. To evidence such lien, the City shall prepare a written notice of the amount due and owing to the City, the name of the Owner and a legal description of the tract upon which such installation or restoration was made. Such notice shall be signed on behalf of the City and shall be recorded in the office of the Clerk and Recorder of the County of Larimer, State of Colorado, and shall attach from the date of such recording. Such lien may be enforced by foreclosure by the City of the tract upon which the improvements were made in the manner provided for the foreclosure of mortgages on real property. Any assessment made by the City for the installation or restoration of landscaping shall be the personal and individual obligation of the Developer or the Association as the case may be at the time the assessment is made. Suit to recover money judgment for unpaid assessments shall be maintainable by the City without foreclosing or waiving the above -described lien. To secure the obligation.of the Developer to install and the Association to maintain, the landscaping in accordance with the Landscape Plan, the Developer has delivered to the City, a letter of credit issued by a National Bank or other lending institution. In addition to the foregoing lien, the City, for a period of two (2) years after approval of the Development Plan, may demand reim- bursement for the cost of installation or restoration of any land- scaping pursuant to said letter of credit. In the event funds are dispursed to the City pursuant to said letter of credit as a result of a breach by the Association of its duty to maintain t-he land- scaping, the Developer shall be entitled to reimbursement from the Association for all amounts so dispursed to the City and in the event. the Association shall fail or refuse to reimburse the Developer, the Developer shall have a ,lien against the Common Open Spaces. To evidence such lien, the Developer shall file in the office of the Clerk and Recorder of the County of Larimer, State of Colorado, a notice of such lien, which lien shall attach from the date of such recording and may be enforced by foreclosure in like manner as mortgages on real property. The Developer may, in addition, file suit to recover such amounts as are due and owing to the Developer without foreclosing or waiving the above -described lien. The Association shall also be responsible for the continuing maintenance and care of the Streets. In the event the City shall determine that the Association has failed to maintain the Streets in a reasonable order and condition, which determination shall be made by the City Engineer and shall not be capricious or unreasonable, the City shall so notify the Association in writing, which shall repair the Streets as required by the City. If the Association shall fail to repair the Streets within ninety (90) days after receipt of such notice or to commence such restoration within sixty (60) days after receipt of such notice and continue thereafter to use due diligence to complete such restoration, then the City shall have the right to enter upon the Property and perform the work necessary to restore the Streets to an acceptable level of mainte- nance. The Association shall be responsible for payment to the City of all costs incurred by the City in connection with the restoration or maintenace of the Streets as herein provided. Said payment shall be made to the City within thirty (30) days after receipt of a statement for the labor and materials so expended by the City. In the event the Association shall fail to make such payment, the City upon resolution adopted by a majority of the members of the City Council, may assess and collect the cost of any such maintenance or restoration in the same manner as the Association and shall have a lien against the Lot of any owner who shall fail or refuse to pay any such assessment when due as herein provided. -1 A- dR I�j 0 1 rb u -i u ( 0 IN WITNESS WHEREOF, the undersigned have executed this Decla- ration of Easements, Covenants, Conditions, and Restrictions for Cunningham Corner P.U.D. this ly. day of 1979. CUNNINGHAM CORNER PARTNERSHIP, a General Partnership By: LL LL Gil E lerb gener par r By C4,4 ,, D, Richard Ellerby general partner 0 ary Nordic STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) i The foregoing Declaration of Easements, Covenants, Conditions, and Restrictions for the Cunningham Corner P.U.D. was acknowledged before me by Gil Ellerby,, Richard Ellerby, and Gary Nordic, all as general partners of Cunningham Corner Partnership, a General Partnership.,,Oq, !9tl A-, _/ /Cf � { �/ � My commission expires: �,.� zy p2w i I,iIrTNESS my hand and official seal. s�4 . Notary Public r -19- 1�4• 96 1 Pc0y69 STATE OF COI.ORADO ) ss. COUNTY OF LARIMER ) The foregoing Declaration of Easements, Covenants, Conditions, and Restrictions for the Cunningham Corner P.U.D. was acknowledged before me by Gil Ellerby, a general partner of Cunningham Corner Partnership, a General Partnership. lg-t et �j7q My commission expires: `7)3��- -Zql ti90 WITNESS my hand and official seal. K• l+l STATE QF COLORADO COij ,OF LARIMER ) ss. g , Notary Public The foregoing Declaration of Easements, Covenants, Conditions, and Restrictions for the Cunningham Corner P.U.D. was acknowledged before me by Richard Ellerby; a general partner of Cunningham Corner Partnership, a General Partnership. -tk, !k*`' -t-'V7 7tca. I /y7y My commission expires: WITNESS my hand and official seal. Notary Public STATE,-._'9V COLORADO ) ss. COLIk,Ii�F LARIMER ) The foregoing Declaration of Easements, Covenants, Conditions, and Restrictions for the Cunningham Corner P.U.D. was acknowledged before me by Gary Nordick,a general partner of Cunningham Corner Partnership, a General Partnership. Zt, /9*:tL U A-7� lY?q My commission expires: WITNESS my hand and official seal. N�y- Pub is 1 BY-LAWS OF CUNNIGHAM CORNER HOMEOWNERS' ARTICLE I NAME The name of the corporation is "Cunningham Corner Homeowners (hereinafter referred to as "the Associatic:l") . ARTICLE II DEFINITIONS 1. "Declaration" shall mean and refer to the Declaration of Easements, Covenants, Conditions, and Restrictions for the Cunnig- ham Corner P.U.D., recorded in the office of the Clerk and Recorder, Larimer County, Colorado. 2. "Property" shall mean and refer to the real property located in the City of Fort Collins, County of Larimer, State of Colorado described on Exhibit "A" attached to the Declaration. 3. "Lot" shall mean and refer to any Lot designated on the plat of the Cunningham Corner P.U.D. recorded in the office of the Clerk and Recorder, Larimer County, Colorado, together with membership in the Association. 4. "Owner" shall mean and refer to the record owners, whether one or more persons or entities, of any Lot, including contract purchasers, but excluding those having such interest merely as security for the performance of an obligation. 5. "Plat" shall mean and refer to the Plat of the Cunningham Corner P.U.D. recorded in the Office of the Clerk and Recorder, Larimer County, Colorado and any amendments or replats thereof. 6. All other words and terms used in these By -Laws shall have the meaning given in the Declaration. ARTICLE III OFFICES The principal office of the Association shall be at 2000 Union Drive, Fort Collins, Colorado. The Association may have such other offices within the State of Colorado as the Board of 4 Di rectors mZI drsigjjjte or cis the business of the Association may, from time to time, require. ARTICLE IV MEIMBERSHIP AND MEETINGS 1. Membership. Ownership of a Lot is required in order to qualify for membership in the Association. Any person or entity, on becoming an Owner of a Lot, shall automatically become a member of the Association and be subject to these By -Laws. Membership in the Association shall be appurtenant to and may not be separate from ownership of said Lot. Such membership shall terminate with- out any formal Association action whenever such person ceases to be an Owner; but such termination shall not relieve or release any such former Owner from any liability or obligation incurred under or in any way connected with the Association during the period of such ownership and membership in the Association, or impair any rights or remedies which the Board of Directors of the Association or others may have against such former Owner and member, and the covenants and obligations incident thereto. No certificates of stock shall be issued by the Association; but the Board of Direc- tors may, if it so elects, issue one membership certificate Der Lot to the Owner of the Lot. Such membership certificate shall be surrendered to the Secretary whenever the Owner (member) transfers, conveys, or sells his interest in the Lot to another person or entity; and the new Owner shall then become a member of the Asso- ciation. 2. Voting. The Association shall have two (2) classes of voting membership: Class A: Class A members shall be all Owners of Lots (excluding the Developer) and shall be entitled to one vote for each Lot owned. Class B: The Class B member shall be the Developer which shall be entitled to votes equal to .the number of Lots owned or votes equal to one (1) more than all of the votes entitled to be cast by Class A members of the Association which ever is greater, so long as the Developer owns any Lots designated on the Plat. Class B Membership shall cease upon written notice from the Developer to the Association or upon the conveyance of all Lots designated on the Plat by the Developer to individual Owners. 3. Annual Meetings. be held on the day of pose of electing id rectors business as may come before Annual Meeting shall not be tion (legal holiday, etc.), The Annual Meeting of the members shall of each year for the Dur- and for the transaction of such other the meeting. If the day fixed for the a usual business day for the Associa- such meeting shall be held on the next 2 succeeding business clay. In the event that such Annual Meeting is omitted by oversight or otherwise on the date herein provided for, the Directors shall call a meeting in lieu thereof to be held as soon thereafter as conveniently may be; and any business trans- actions or elections held at such meetinq shall be as valid as if transacted or held at the Annual Meeting.- Such subsequent meeting shall be called in the same manner as provided for the Annual Meeting. 4. Special Meetings. Special Meetings of the members, for any purpose or purposes, unless otherwise prescribed by statute, may be called at any time by resolution of the Board of Directors or by the President of the Association and shall be called by the President upon written request of the members entitled to cast one - twentieth (1/20) of all votes entitled to be cast at such meeting, provided such written request shall also state the purpose of the meeting called and the business to be transacted at such meeting. S. Place of lieetincj. All meetings of members shall be held at the principal office of the Association unless the Board of Directors designates another location as the place of meeting for any Annual Meeting or Special Meeting. A waiver of notice signed by all members entitled to vote at a meeting may designate a place other than the principal office of the Association at which such meeting may be held. 6. Notice of meetings and Waiver of Notice. Written notice stating the place, day, and hour of the meeting and, in the case of a Special Meeting, the purpose for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (SO) days before the date of the meeting, either personally or by mail, by or at the direction of the President, the Directors, or by the President at the request of the members as provided in paragraph 4 above, to each member entitled to vote at that meeting. If mailed, such notice shall be deemed delivered when deposited in the United States Mail addressed to the member at his address as it appears on the records of the Association with postage thereon prepaid. The attendance of a member at a meeting shall constitute a waiver of notice of such a meeting except where a member attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Any meeting, of which all members shall at any time waive or have waived notice in writing, shall be a legal meeting for the trans- action of business notwithstanding that notice has not been given as hereinabove provided. 7. Quorum. Except as otherwise provided in these By -Laws, as provided in the Declaration or as provided by law, at any meeting of the members, the presence in person or by -proxy of members hold- ing one -tenth (1/10) of the votes entitled to be cast on the matter to be voted upon shall constitute a quorum. An affirmative vote, of a majority of the votes entitled to be cast on a matter to be voted upon by the members present or represented by proxy at a 3 meeting at which a (Itiorum is present, shall be necessary for the adoption thereof unless a greater portion is required by law, by the Articles of Incorporation, by the Declaration, or by these By- L iws . 3. Proxies. Members may vote at any meeting, either in person or by written proxy, which shall be filed by its holder with the Secretary of the Association before being voted. 9. Order of Business. The order of business for all meetings shall be as follows: (a) Roll Call (b) Proof of notice of Meeting or Waiver of Notice (c) Reading of Minutes (d) Reports of Officers (e) Reports of Committees (f) Unfinished Business (9) New Business ARTICLE V BOARD OF DIRECTORS 1. General Powers. The business and affairs of the Associa- tion shall be managed by its Board of Directors. The Board of Directors shall have the powers and duties necessary for the administration of the Association and for the operation and mainte- nance of the streets and common open spaces and for the administra- tion and enforcement of the covenants and restrictions contained in the Declaration. The Directors shall in all cases act as a Board; and they may adopt such rules and regulations for the conduct of their meetings and the management of the Association as they may deem proper, not inconsistent with these By -Laws, the Articles of Incorporation, the Declaration, or the laws of the State of Colorado. 2. Other Powers and Duties. The Board of Directors shall be empowered and shall have the duties as follows: (a) To administer and enforce the covenants, conditions, restrictions, easements, uses, limitations, obligations, and all other provisions of the Declaration. (b) To establish, make, and enforce compliance with such reasonable rules and regulations as may be necessary for the opera- tion and use of the streets and common open spaces. Said rules and regulations may be amended, from time to time, by the Board of Directors or by vote of the majority of the votes entitled to be cast by members present in person or by proxy at an Annual Meeting or Special Meeting. A copy of such rules and regulations shall be delivered or mailed to each member promptly upon the adoption or amendment thereof and to each new member upon becoming an Owner of a Lot. 4 (c) To fix, determine, levy, collect, and enforce the general and special assessments to be paid by each of the Owners as provi- ded in the Declaration; to adjust, decrease, or increase the amount of such assessments; and to remit or return any excess of the assessments over expenses and cash reserves to the Owners at the end of each operating year, except for necessary reserves and sinking funds as shall be required to insure the proper maintenance of the streets and common open spaces. (d) To collect delinquent assessments by suit or otherwise and to enjoin or seek damages from any Owner as provided in the Declaration. (e) To borrow funds in order to pay for any expenditure or outlay required pursuant to the authority granted by the provisions of the Declaration and to execute all such instruments evidencing such indebtedness as the Board of Directors may deem necessary; and such indebtedness shall be the several obligation of all the Owners. (f) To establish a bank account for the common treasury and for all separate funds which are required or may be deemed advis- able by the Board of Directors. (g) To keep and maintain, or to cause the same to be kept and maintained, detailed, accurate records in chronological order of receipts and expenditures affecting the streets and common open spaces, specifying and itemizing the maintenance and repair expenses of the streets and common open spaces and any other expenses incurred. Such records and the vouchers authorizing payments of such expenses shall be available for examination by the members at convenient hours. (h) To prepare and deliver annually to each member a state- ment showing all receipts, expenses, or disbursements since the last such statement. (i) To meet at least once a year. (j) To manage, control, operate, maintain, repair and improve the streets and common open spaces and to designate or hire the personnel necessary for such maintenance and operation of the streets and common open spaces and to enter into one (1) or more management agreements with third parties in order to facilitate efficient operation of the streets and common open spaces. it shall be the primary purpose of such management agreements to provide for the administration, management, repair, and maintenance of the streets, common open spaces and all improvements thereon and the receipt and disbursement of funds as may be authorized by the Board of Directors. (k) To enter into contracts for services, facilities, pur- chase of assets, both personal and real, for the benefit of the members, and do any and all acts that a natural person can do for the benefit of the members. 5 (1) In general, to carry on the administration of the Asso- ciation, to do all of those things necessary and reasonable in order to carry out the governing and operation of the Association, and to exercise for the Association all powers and authorities vested in or delegated to the Association and not reserved to the membership by other provisions of these By -Laws, the Articles of Incorporation, or the Declaration. 3. Number and Qualification. Initially, the Board of Direc- tors, as set forth in the Articles of Incorporation, shall consist of three (3) persons who shall hold office until the first Annual Meeting of the members or until their successors have been duly elected. The number of directors of the Association shall be not less than three (3) nor more than fifteen (15) as determined, from time to time, by vote of a majority of the votes entitled to be cast by members present in person or by proxy at an Annual Meeting or Special Meeting. 4. Election and Term of Office. At the first annual meeting of the Association, the term of office of one Director shall be fixed at three (3) years, the term of office of one Director shall be fixed at two (2) years, and the term of office of one Director shall be fixed at one (1) year. At the expiration of the initial term of office of each respective Director, his successor shall be elected to serve a term of three (3) years. The Directors shall hold office until their successors have been elected and hold their first meeting. The Directors shall be elected by vote of a majority of the votes entitled to be cast by members present in person or by proxy at an Annual Meeting or Special Meeting. 5. vacancies. Vacancies in the Board of Directors caused by any reason other than the removal of a Director by a vote of the Association shall be filled by vote of the majority of the remain- ing Directors, even though they may constitute less than a quorum; and each person so elected shall remain in office until the next Annual Meeting of the members at which time an election shall be held to fill the vacancy and unexpired term. 6. Removal of Directors. At any regular or special meeting duly called, any one or more of the Directors may be removed, with or without cause, by a vote of a majority of the votes entitled to be cast by members present in person or by proxy at such meeting; and a successor may then and there be elected to fill the vacancy and unexpired term thus created. Any Director whose removal has been proposed by the membership shall be given an opportunity to be heard at such meeting. 7. Organizational Meeting. The first meeting of a newly elected Board of Directors shall be held within ten (10) days of election at such place as shall be fixed by the Directors at the meeting at which such Directors are elected; and no notice shall be 2