HUNTINGTON HILLS FILING 2 COVENANTS, CONDITIONS, EASEMENTS, AND RESTRICTIONS
Effective DECEMBER 3, 1992
AMENDED AND RESTATED DECLARATION CREATING COVENANTS, CONDITIONS, EASEMENTS AND RESTRICTIONS FOR HUNTINGTON HILLS FILING 2
THIS DECLARATION of Covenants, Conditions, Easements, and Restrictions (the Declaration.) is made as of the 3rd day of December 1992, by HUNTINGTON HILLS CORPORATION, a Colorado corporation (“Declarant”).
A. Declarant is engaged in the endeavor of creating and marketing a high quality mixed-use project upon the lands described in Exhibit “B”, attached hereto and made a part hereof by reference. This project is known as Huntington Hills. To that end, Declarant is adopting a Land Use Master Plan, consistent with applicable zoning requirements & regulations for the development of various parcels within the overall project. Declarant desires and intends to continue the creation, development, and marketing of its project, to consist of village commercial areas, single-family residences and multi-family residential projects with recreational amenities.
B. Declarant plans to subdivide and develop the properties in accordance with the Land Use Master Plan (the “Master Plan”), reserving the following rights:
(i) The right to modify the Master Plan affecting those portions of Huntington Hills owned by Declarant, subject to approval by any Governmental authority having jurisdiction over the Properties.
(ii) The right to impose similar restrictions upon portions of additional property from time to time so that the property so encumbered may ultimately be developed, owned, used, occupied and improved as a single project for the benefit of every part thereof and interest therein under a uniform series of restrictions and covenants to preserve the natural amenities of the project, to assure the architectural harmony of the improvements and to preserve the environmental values inherent in the Master Plan.
(iii) The right to authorize the designation of specific portions of the overall development as a project with its’ homeowners association and that may also be a part of a master association to be formed in the future whenever a parcel or groups of parcels require imposition of special restrictions or management arrangements in order to accommodate special architectural controls, land uses, common elements, or other integrating factors.
C. The lands located in the city of Fort Collins, Larimer County, Colorado, more particularly described in Exhibit “A”, attached hereto and by this reference made a part hereof (the ”Property”) together with such other additional property as may hereafter be annexed to them pursuant to the provisions hereof are hereinafter referred to as Huntington Hills Filing 2.
D. Declarant desires to establish on the Property a single family residential planned community and certain other purposes set forth herein for the benefit of said community which are established by the granting of specific rights, privileges and easements of enjoyment to be shared and enjoyed by all residents of said community.
E. Declarant desires to insure the attractiveness of the individual Lots and all improvements within the Property, to prevent any future impairment thereof, to prevent nuisances, to preserve, protect and enhance the values of the Property and to provide for the maintenance of the Common Areas and landscaping located on the Common Areas. In order to achieve this, Declarant wants to subject the Property to the covenants, conditions, easements, restrictions, charges and liens set forth herein, each of which is for the benefit of the Property and each owner thereof.
F. In order to preserve, protect, and enhance the value of the Property and the Improvements thereon, and to insure the residents’ enjoyment of the specific rights, privileges and easements created by this Declaration, Declarant has deemed it desirable to create an association in the form of a non-profit corporation, which shall be delegated and assigned the powers of administering and enforcing the provisions of this Declaration, together with collecting, disbursing and accounting for the assessments and charges herein contemplated. To this end, Declarant has caused the Huntington Hills Filing 2 Homeowners Association, Inc. to be incorporated under the laws of the State of Colorado as a non-profit corporation for the purpose of exercising the aforesaid functions.
G. There were previous Covenants and Restrictions affecting the Property recorded on June 26, 1981, in Book 214 at Page 612, Amended and Restated Declaration and Restrictions for Huntington Hills Subdivision recorded December 21, 1982, in Book 2198 at Page 1421, and Amendment to Declaration of Covenants and Restrictions for Huntington Hills Subdivision recorded November 5, 1984, in Book 2296 at Page 2181, all in the records of Larimer County, Colorado, and by these Covenants, Conditions, Easements and Restrictions for Huntington Hills Filing 2 does amend, restate, and replace in toto such previously recorded Covenants and Restrictions, all Amendments thereto, and any other covenants and restrictions previously recorded on the Property all of which shall be hereafter void.
NOW, THEREFORE, the Declarant hereby submits the Property together with all improvements, appurtenances, and facilities thereto and now or hereafter thereon, to the following terms, provisions, covenants, conditions, restrictions, easements, reservations, uses, limitations and obligations, which shall be deemed to run with the Property and shall be a burden and a benefit to Declarant, its successors, assigns, and any person acquiring or owning an interest in the above-described Property, their grantees, successors, heirs, executors, administrators, devisees, or assigns.
The following terms when used in this Declaration or any supplementary declarations (unless the context shall prohibit or there shall be a specific statement to the contrary) shall have the following, meanings:
1.1 “Architectural Control Committee” shall mean and refer to the committee appointed pursuant to Article V herein.
1.2 “Association shall mean and refer to the Huntington Hills Filing 2 Homeowners Association, Inc., a Colorado non-profit corporation.
1.3 “Board” or “Directors” shall mean and refer to the Board of Directors of the Association.
1.4 “Builder” shall mean and refer to any person who acquires a Lot for the purpose of constructing a Building thereon for resale of the Lot and the Building.
1.5 “Building” shall mean and refer to any of the improvements located upon a Lot.
1.6 “Declarant” shall mean and refer to Huntington Hills Corporation, a Colorado corporation, and its successors and assigns.
1.7 “Common Areas” shall mean and refer to all land within the Property heretofore or hereafter in the possession of or maintained by the Association, and shall include, but not be limited to, all areas of the Property designated as Common Areas for the Huntington Hills Filing 2 Homeowners Association and the improvements and landscaping thereon. Common areas shall also mean areas which have been dedicated to the City of Fort Collins, or other governmental agencies, which Declarant or the Association has elected to maintain. Common ‘areas shall also include any other lands, facilities, improvements, or landscaping which , the Association has, by formal action of its’ Board of Directors, elected to improve or maintain for the use and benefit of the members of the Association.
1.8 “Declaration” shall mean and refer to this Declaration, Creating Covenants, Conditions, Easements, and Restrictions for Huntington Hills Filing 2.
1.9 “Utility Easements” shall mean and refer to all utility easements on the Property so designated on the plat for Huntington Hills Filing 2, which are for the benefit of the Declarant and all owners
1.10 “First Mortgagee” shall mean and refer to any person, I corporation, partnership, trust, company or other legal entity which takes, holds, owns or is secured by a Mortgage which has priority of record over all other recorded liens, except those governmental liens made superior by statute (such as general ad valorum tax liens and special assessments).
1.11 “Lot” shall mean and refer to any parcel of the Property shown on a recorded plat and identified therein as a lot or site in Huntington Hills Filing 2 (or on a recorded plat of any other property made subject to this Declaration).
1.12 “Mortgage shall mean and refer to any mortgage, deed of trust, or other document pledging a Lot as security for the payment of a debt or obligation.
1.13 “Owner” or “Member” shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any Lot situated within the Property which is subject to this Declaration, but notwithstanding any applicable theory relating to mortgages, deeds of trust, or other liens or encumbrances upon any such property Owner shall not include or refer to a mortgagee, beneficiary of a deed of trust, or lien holder unless and until such party has acquired title pursuant to foreclosure or any applicable procedure in lieu of foreclosure.
1.14 “Property” shall mean and refer to the Property which is described on Exhibit “A” attached hereto, plus any additional property from time to time made subject hereto pursuant to the terms of the Declaration.
1.15 “Residence” shall mean refer to a single-family home or other similar single-family residential unit constructed upon a Lot for the permanent occupancy of an Owner and his or her family.
1.16 “Architectural Design Guidelines” shall mean the current Architectural Design Guidelines for the Huntington Hills Filing 2 project, as they may be amended from time to time by the Architectural Control Committee.
2.1 EASEMENTS SHOWN ON PLAT. The Property, and all portions thereof, shall be subject to the easements as shown on the Plat for Huntington Hills Filing 2, or any other subsequent Plat made subject to this Declaration. No fence, wall, hedge, patio, barrier, or other improvement which interferes with the use and maintenance of any easement shall be erected or maintained along, on, across, or the areas reserved for such easement by an Owner without the prior written approval of the Association.
2.2 UNDERGROUND ELECTRIC SERVICE. All easements for the underground electrical service may be crossed by driveways and walkways provided that prior arrangement with the appropriate utility company furnishing such electrical service has been made. Such easements for the underground electrical service shall be clear of all other improvements, including Buildings, patios, or other paved improvements (other than crossing walkways or driveways) and “no electrical utility company using the easement shall be liable for any damage done by it or its agents or employees to shrubbery, trees, flowers, or other improvements of the Owner of the Lot covered by said easement.
2.3 EMERGENCY EASEMENT. An easement is hereby granted to all police, sheriff, fire protection, ambulance, and all other similar emergency agencies or persons to enter upon the Property in the performance of their duties; including, but not limited to, the right of police officials to issue parking and traffic tickets for violations occurring on or off of the Property.
2.4 EASEMENT FOR DRAINAGE MAINTENANCE. An easement is hereby granted to the Association, its officers, agents, and employees to enter upon, across, over, and under any Lot for the purpose of changing, correcting, or otherwise modifying the grade or drainage channels of a Lot to comply with the drainage plan in effect for the Property.
3.1 MEMBERS, EASEMENTS AND RIGHT OF ENJOYMENT. Subject to the provisions hereinafter set forth in this Article Ill, every member of the Association shall have a non-exclusive right and easement of enjoyment in and to the Common Areas and such easement shall be appurtenant to and shall pass with the title to every Lot within the Property, which is subject to this Declaration.
3.2 EXTENT OF MEMBERS RIGHTS IN COMMON AREAS. The rights and easements of enjoyment created hereby shall be subject to the following:
(a) The right of the Association, as provided in its By- Laws, to suspend the enjoyment rights of any member for any period during which any assessment remains unpaid, and for such period as it considers appropriate for any infraction of its published rules and regulations.
(b) The right of the Association or the Declarant to dedicate all or any part of the Common Areas to any public agency, authority, or utility company serving the Property, for such purposes and subject to such conditions as may be agreed to by the members; provided, that no such dedication, determination as to the purpose or as to the conditions thereof, if made by the Association shall be effective unless approved by fifty-one percent (51%) of the total votes outstanding, upon written ballot which shall be sent to all members at least thirty (30) days in advance of the vote thereof which shall set forth the reasons for such proposed action. The Declarant shall, however, have the right to make such dedication or cause the Association to do so, without such consent at any time prior to December 31, 2008, or until such time as Declarant voluntarily relinquishes such right, whichever occurs earlier.
(c) The easements set forth in Article II herein.
(d) The right of Declarant and the Association to grant temporary easements for storage of construction materials, dirt, and similar items to Owners of Lots or to the Declarant during the construction of improvements upon any areas within the Property, provided that following the completion of such construction such Owners and Declarant, whoever shall have been granted such privilege, shall forthwith proceed to remove all materials and dirt from the Common Areas and restore the same to the condition existing-before such use thereof, or to a condition acceptable to the Architectural Control Committee, all at the sole cost and expense of the Owner or the Declarant, as the case may be.
(e) The right of the Declarant to impose reasonable covenants, conditions, restrictions, easements, charges, liens and rights in respect to the Common Areas, in addition to those set forth herein.
(f) The right of the Declarant to enter into reciprocal agreements with other business entities and with governmental entities for the rental and use of equipment and exchange of services on fee basis or otherwise, together with the right of the Declarant to construct emergency facilities and to erect information and identification signs as Declarant deems appropriate.
(g) The right of the Association or the Declarant to enter 1 into agreements, including the maintenance and improvements of park and 1 recreational facilities and landscaping, with a master property owners association to be formed for the Huntington Hills project or with any other property or homeowner associations formed within the Huntington Hills property.
(h) The right of the Declarant and the Association to adjust or grant public or private easements in addition to or in substitution for other easements provided in this Declaration or the Plat for Huntington Hills Filing 2 if in the opinion of the Declarant or the Architectural Control Committee such adjustment or grant would be desirable.
(i) The right of the Association or the Declarant to enter into contractual agreements to provide services similar to those provided by the Association of other non-profit homeowners associations; provided, however, that the Association shall be fully reimbursed for its costs and expenses in providing such services. The Association shall have the right to enter into contractual agreements to exchange services with other non-profit homeowners associations on such basis as the Declarant or the Directors shall deem appropriate.
3.3 EXTENSION OF RIGHTS AND BENEFITS. Every member of the Association shall have the right, subject to the rules and regulations promulgated by the Directors, to extend the rights and easements of enjoyment vested in such member under this Article to each of such members, tenants, guests, household employees, and to each family member who resides with such member of the Association within the Property and to such other persons as may be permitted by the Association.
4.1 MEMBERSHIP. Every Owner of a Lot shall be a member of the Association and shall remain a member for the period of his ownership of a Lot; provided, however, that in no event shall more than one vote be cast for each such Lot except as provided in section 4.2 hereof. Membership in the Association shall be appurtenant to and may not be separated from ownership of a Lot.
4.2 CLASSES OF VOTING MEMBERSHIP. The Association shall have two (2) classes of voting membership as follows:
(a) The Class A members shall be all Owners, with the exception of Declarant, and shall be entitled to one vote for each Lot owned. If more than one Owner holds an interest in the Lot, all such Owners shall be members and the vote for such Lot shall be cast as the Owners thereof agree, but in no event shall more than one vote per question be cast with respect to such Lot. If the Owners of such Lot, do not agree as to the manner in which their vote should be cast when called upon to vote, then they shall be treated as having abstained.
(b) The Class B member(s) shall be Declarant, and shall be entitled to five (5) votes for each Lot owned by the Declarant. The Class B membership shall cease and be converted to Class A membership upon the happening of either of the following events, whichever occurs earlier:
(i) When the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership; or
(ii) December 31, 2004.
5.1 COVENANT OF PERSONAL OBLIGATION OF ASSESSMENTS. Except and to the extent provided in this paragraph with respect to the Declarant, every Owner of every Lot by acceptance of the deed or other .instrument of conveyance thereof (whether or not it shall be so expressed in such deed or other instrument of conveyance) is deemed to personally covenant and agree, jointly and severally, and hereby does also covenant and agree to pay to the Association: (a) periodic assessments for maintenance and upkeep; (b) special assessments including all costs necessary and incurred to correct an owner’s violations of the Declaration and Architectural Design Guidelines, and (c) default assessments applicable to such Lot; such assessments to be established and collected as hereinafter provided. No Owner may waive or otherwise escape personal liability for the payment of the assessments provided for herein by abandonment or leasing of such Owner’s Lot. Notwithstanding the foregoing provisions of this paragraph 5.1, each Lot owned by Declarant for so long as Declarant retains title thereto, whether improved or unimproved; provided that no improved Lot shall be used or occupied, shall be assessed, for assessment purposes, at a rate equal to twenty-five percent (25%) of the assessment otherwise applicable to Lots owned by persons other than -the Declarant.
5.2 PURPOSE OF ASSESSMENTS. The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety, convenience, and general welfare of the Owners, including the enforcement of any of the provisions contained in this Declaration. Proper uses of the assessments levied by the Association shall include, but are not limited to, the expenditures of funds for taxes, fees, expenses, charges, levies, premiums, expenditures, or other costs incurred by the Association for:
(a) Repairing, replacing, insuring and maintaining the Common Areas and improvements thereon, including without limitation, the landscaping, signage, recreational facilities, parks, sprinkling system and any fencing;
(b) Installation, maintenance, and repair of underground utilities upon, across, over and under any part of the Common Areas;
(c) Garbage and trash pickup and water and sewer service 11 furnished to the Common Areas by the Association;
(d) Providing services to the Common Areas such as mowing grass, caring for the grounds, sprinkling and irrigation system, 11 landscaping, maintenance, trees, shrubs, grass, walkways and pathways;
(e) Providing for the establishment of an adequate reserve fund for the maintenance, repair and replacement of improvements on the Common Areas on a periodic or “as needed” basis, which reserve fund shall be a part of the regular periodic assessments;
(f) Installing, preparing and maintaining any drainage easements and improvements on the Common Areas, including without limitation, detention ponds, swales, coverts and required landscaping, and
(g) Any other purposes and uses that the Board shall determine to be necessary to meet the primary purposes of the Association.
5.3 ASSESSMENT YEARS. The first assessment year for the levying of the Associations periodic assessments shall commence upon the first day of the month immediately following the date of the first conveyance of a Lot to an Owner other than Declarant and shall continue thereafter until the following 31st of December. Subsequent assessment years shall thereafter commence on the first day of January and continue until the following 31st of December.
5.4 MAXIMUM ANNUAL ASSESSMENT. [Amendment 1] Until January 1 of the year immediately following the conveyance of the first Lot to Owner, the maximum annual assessment shall be One Hundred Twenty Dollars ($120.00) per Lot.
(a) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may be increased each year not more than five percent (5%) above the maximum assessment for the previous year without a vote of the membership.
(b) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may be increased above five percent (5%) by a vote of two-thirds (2/3) of each Class of members who are voting in person or by proxy, at a meeting duly called for this purpose.
(c) The Board of Directors may fix the annual assessment at an amount not in excess of the maximum.
(d) Declarant or the Association shall have the right to increase the annual assessment above the amount stated in this Article V for the right to enter into a use agreement to utilize, maintain and improve any recreational, park, signage, or landscaping established or constructed for the benefit of all property owners located within the Huntington Hills property.
5.5 UNIFORM ASSESSMENT. The assessments to be levied by the Association shall be uniform for all Lots notwithstanding their respective sizes. At the time of closing of the sale of the Lots, the purchaser of that Lot shall deposit with the Association a sum equal to three {3} months assessments as a working capital fund in addition to payment of any other assessments.
5.6 DETERMINATION OF AMOUNT OF ASSESSMENTS. The Board, in its discretion, may determine and levy assessments in accordance with the guideline set forth herein. Assessments for each year shall be paid in advance and shall be due on the 1st day of January of each year.
5.7 SPECIAL ASSESSMENTS. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of any improvement on the Common Areas, including fixtures and personal property related thereto, provided that any such assessment shall have the approval of two-thirds (2/3) of the votes of each Class of members who are voting in person or by proxy at a meeting duly called for this purpose. Said two-thirds (2/3) vote shall not be necessary and applicable to any costs of reconstruction for damage or repair not covered by insurance as provided in paragraph 9.3 below.
5.8 NOTICE AND .QUORUM REQUIREMENTS FOR CERTAIN ACTIONS. written notice of any meeting required under section 5.4 or 5.7, above shall be given by the Board to each owner not less than ten (10) days prior to any meeting and shall notify the Owner of the purpose, date, time and location of such meeting. At any such meeting called the attendance in person or by proxy of at least sixty percent (60%) of the Class A membership of the Association and the Class B member thereof shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting
5.9 DUE DATES FOR ASSESSMENT PAYMENTS. Unless otherwise determined by the Board, the assessments and any special assessments, which are to be paid in installments, shall be paid in advance and shall be due and payable to the Association at its offices, without notice, on the first day of January of each year. If the conveyance of a Lot f occurs on other than this date, the Owner of that Lot shall pay at the closing a prorated portion of the current annual assessment. If any such assessment is not paid within fifteen (15) days after it shall become due and payable, then the Board may assess a late charge thereon in an amount not to exceed ten percent (10%) of the amount of the assessment due to cover the extra expenses involved in handling delinquent assessment payments and in addition may charge interest on the amount past due at the rate of twenty-four percent (24%) per annum from the due date.
5.10 LIENS FOR ASSESSMENTS and OTHER CHARGES. Declarant, for each Lot, shall be deemed to covenant and agree, and each Lot Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree, to pay to the Association all assessments as provided for herein. Such assessments, including fees, charges, late charges, attorney fees, fines and interest charged by the Association shall be the personal obligation of the unit Owner at the time when the assessment or other charges became or fell due. The personal obligation to pay any past due sums due the Association shall not pass to a successor in title except as permitted by law.
Periodic and special assessments provided for in this Article V together with any and all interests, penalties, fines, costs, late charges, expenses, and reasonable attorneys’ fees which may arise under this Article V and under Article X, shall be burdens running with, and a perpetual lien in favor of the Association upon the specific Lot and Residence to which such assessments apply. To evidence and perfect such lien upon a specific Lot and Residence, the Board shall prepare a written lien notice setting forth the description of the Lot, the amount of the assessments thereon which are unpaid as of the date of if such lien notice, the name of the owner thereof, an address for notice, to be given to the Association, and any and all other information that the Board may deem proper. The lien notice shall be signed by the president or a vice president of the Association or such other person as may be so authorized by the Board whose signature shall be attested by the secretary or an assistant secretary of the Association, and shall be recorded in the Office of the Clerk and Recorder of Larimer County, Colorado.
The assessments of the Association shall be a continuing lien upon the Lot against which each such assessment is made. A lien under this Article is prior to all other liens and encumbrances on a Lot except: (1) a first lien Security Interest on the Lot recorded before the date on which the Common Expense Assessment sought to be enforced became delinquent, and (2) liens for real estate taxes and other governmental, assessments or charges against the Lot. This Section does not prohibit an action to recover sums for which this section creates a lien or prohibit the Association from taking a deed in lieu of foreclosure. Sale or transfer of any Unit shall not affect the Association’s lien except that sale or transfer of any Unit pursuant to foreclosure of any first lien Security Interest, or any proceeding in lieu thereof, including deed in lieu of foreclosure, or cancellation or forfeiture shall only extinguish the Association’s lien as provided by law. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure, nor cancellation or forfeiture shall relieve any Unit from continuing liability or any Common Expense Assessments thereafter becoming due, nor from the lien thereof.
5.11 EFFECT OF NON-PAYMENT OF ASSESSMENTS. The Association may, within a reasonable time after perfecting its lien as described in Section 5.10 above, if such assessments or other charges remain unpaid, thereafter bring an action at law or in equity, or both, against any Owner personally obligated to pay the same and may also proceed to foreclose its lien against the specific Lot and Residence in the manner and form provided by Colorado for foreclosure of mechanic’s liens in and through the courts. In the event that the Association shall commence such an action (or shall counterclaim or cross claim in such action) or take any action to collect past due assessments against any Owner personally obligated to pay the same or shall proceed to foreclose its lien against the specific Lot and Residence, then the late charges under section 5.9, the Associations costs, expenses, and reasonable attorneys’ fees incurred in its collection attempts and in connection with preparing for, preparing and recording any lien notice, and the Association’s costs of suit, expenses, and reasonable attorneys’ fees incurred for any such action and foreclosure proceedings shall be taxed by the court as a part of the costs of any such action or proceeding and shall be recoverable by the Association from any Owner personally obligated to pay the same and from the proceeds from the foreclosure sale of the specific Lot and Residence in satisfaction of the Association’s lien. Foreclosure or attempted foreclosure by the Association of its assessment lien shall not be deemed to stop or otherwise preclude the Association from thereafter again foreclosing or attempting to foreclose its lien for any subsequent assessments which are not fully paid when due or for any subsequent default assessments. The Owner of any Lot being foreclosed upon shall be required to pay to the Association all assessments for the Lot accruing during the period of foreclosure, and the Association shall be entitled to have a receiver appointed to collect the same.
The Association shall have the power and right to bid in or purchase any Lot and Residence at foreclosure or other legal sale and to acquire and hold, lease, mortgage, vote the Association vote appurtenant to ownership thereof, convey, or otherwise deal with the same. An action at law or in equity by the Association against an Owner to recover a money judgment for unpaid assessments, charges or fees may be commenced and pursued by the Association without foreclosing, or in any way waiving, the Association’s lien therefor.
5.12 SUCCESSORS LIABILITY FOR ASSESSMENTS. Notwithstanding the personal obligation of each Owner of Lot to pay all assessments thereon and notwithstanding the Association’s perpetual lien upon a Lot for such assessments, all successors in interest to the fee simple title of a Lot shall be jointly and severally liable with the prior Owner thereof for any and all unpaid assessments, interest, late charges, fines, costs, expenses, and attorney’s fees against such Lot (as more fully described in section 5.11), without prejudice to any such successor’s right to recover from any prior Owner any amounts paid thereon by such successor; provided, however, that a successor in interest to the fee simple title of a specific Lot shall be entitled to rely upon the existence and status, or absence thereof, of unpaid assessments, interest, late charges, costs, expenses, and attorney’s fees as shown upon any certificate issued by the Association to such named successor in interest pursuant to section 5.13 below.
5.13 CERTIFICATE OF STATUS OF ASSESSMENTS. Upon request in writing by any person and payment of a reasonable charge therefor, the Association shall furnish within fourteen (14) days after such request is received, a certificate setting forth the amount of any unpaid assessments, interest, late charges, costs, expenses and attorney’s fees then existing against the specific Lot, the amount of the current assessments and the date that the next periodic assessment is due and payable in the amount of any special assessments and default assessments then existing against the Lot and the date of the payment or payments thereof. The Association shall have the right to charge reasonable fee, not to exceed Thirty-Five Dollars ($35.00), for providing such certificate. Upon the issuance of such a certificate signed by an officer or designated agent of the Association, the information contained therein shall be conclusive upon the Association.
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6.1 COMPOSITION OF ARCHITECTURAL CONTROL COMMITTEE. The Architectural Control Committee shall consist of a chairman and two (2) other members. The chairman shall appoint a secretary, who shall not be a member of the Architectural Control Committee. The chairman shall preside over all meetings of the Architectural Control Committee and shall be responsible for the coordination and direction of its work and for the promulgation of its rules and any amendments to the rules. The secretary shall keep the minutes of the Architectural Control Committee’s proceedings and its records. At the direction of the chairman, the secretary shall publish and disseminate such rules as may be necessary or desirable for the guidance of Owners and the enforcement of the provisions of this Declaration until such time as Declarant conveys all Lots in the Property (including any Lots subsequently made subject to this Declaration) to first Owners thereof (other than Declarant), Declarant shall have the sole right to appoint, replace, and remove members of the Architectural Control Committee. At such time as Declarant has conveyed all Lots in the Property (including any Lot subsequently made subject to this Declaration to the first Owners thereof (other than Declarant), appointments to the Architectural Control Committee shall be made by the Board of Directors of the Association.
6.2 ADDRESS OF ARCHITECTURAL CONTROL COMMITTEE MEMBERS. The address of the Architectural Control Committee shall initially be Huntington Hills Corporation, 650 South Cherry Street, Suite 435, Denver, Colorado 80222, Attn: Marcus Palkowitsh. The current record of the names, qualifications and business addresses of the members of the Architectural Control Committee shall be kept there or at such other locations as determined and designated by the Directors. The Architectural Control Committee shall meet at the convenience of the members thereof, by mail or phone, and as often as is necessary to transact its business, acting on the concurrence of two (2) of its three (3) members. Applicants for Architectural Control Committee may, but need not, be given an opportunity to be heard in support of their application.
6.3 WHEN APPROVAL REQUIRED. No work or improvement, grading, excavation, landscaping, tree or shrub removal shall be undertaken upon any Lot without the prior written approval of the Architectural Control Committee. All plans and specifications for any structure or improvement, whatsoever, either temporary or permanent, to be erected on or moved upon or to any Lot and the proposed location thereof on any Lot, the construction material, the roofs and exterior color schemes, any later changes or additions after initial approval thereof, and any remodeling, reconstruction, alterations or additions thereto on any Lot shall be subject to and shall require the approval in writing of the Architectural Control Committee, before any such work is commenced.
6.4 APPLICATIONS STANDARD OF REVIEW and ACTION BY ARCHITECTURAL CONTROL COMMITTEE. Applications for Architectural Control Committee approval, the standards by which such applications shall be reviewed, and the procedures for review shall be determined by the Architectural Control Committee, as may be amended from time-to-time. The standards of review shall require compliance with any and all drainage and grading plans approved for the Property, and all applications submitted for approval shall contain evidence of such compliance. Each application for construction of a Residence shall be accompanied by complete, detailed plans and specifications, grading and drainage plans, soil tests, and such other engineering tests and reports as are appropriate or deemed necessary by the Architectural Control Committee. The Architectural Control Committee shall have the right to charge persons submitting applications, other than Declarant or the Association, a reasonable fee for reviewing each application in an amount not to exceed One Hundred Dollars ($100.00) with respect to any single submittal with reference to construction or expansion of a dwelling on a Lot or remodeling thereof, and a fee not to exceed One Hundred Dollars ($100.00) for any application regarding approval of landscaping plans or modification to existing landscaping: provided, however, that no separate landscaping submittal fee shall be charged for landscaping plans submitted in connection with initial construction of a dwelling on a Lot.
6.5 DRAINAGE AND GRADING PLANS. The Architectural Control Committee shall be responsible for assuring that drainage and grading plans currently in effect for the property are available to Owners and their agents. The approved plans shall be kept at the Architectural Control Committee offices and shall be made available upon reasonable notice during normal business hours. All applications submitted to the Architectural Control Committee for the addition of improvements or the modification of existing improvements shall comply in all respects with the approved drainage and grading plans currently in effect and must have the prior written approval of the Architectural Control Committee before changes to the master drainage and grading plans can be constructed. The Architectural Control Committee shall also have the right to inspect Lots, at reasonable times and in a reasonable manner, to assure compliance with the drainage and grading plans.
6.6 NO DESIGN RESPONSIBILITY. Neither the Architectural Control Committee nor any member or agent thereof nor Declarant shall be responsible in any way for any defects in any plans or specifications submitted, revised, or approved in accordance with the foregoing provisions, or for any structural or other defects in any work done according to such plans and specifications.
6.7 LIMITATIONS. Notwithstanding anything to the contrary herein contained, any work performed upon any Lot which requires the prior approval of the Architectural Control Committee shall be deemed approved if no action has been taken by the Architectural Control Committee within thirty (30) days of the date of submittal of the application and all documents required by the Architectural Control Committee.
6.8 VARIATIONS. The Architectural Control Committee may authorize variances from compliance of any of the provisions, covenants, conditions and restrictions contained in this Declaration when circumstances such as topography, natural obstructions, or hardship so require. Such variances must be evidenced in writing and may be recorded. If such variances are granted, no violation of the provisions, covenants, restrictions and conditions contained in this Declaration shall be deemed to have occurred with respect to the matter of which the variance was granted and subsequent owners may rely on and shall be bound by the provisions set forth in the variance. The granting of such a variance shall not operate to waive any of the provisions, conditions, and restrictions contained in this Declaration for any purpose except as to the particular property and the particular provision covered by the variance.
6.9 ENFORCEMENT. The Association and the Architectural Control Committee shall have the right and responsibility to enforce the provisions of this Article VI. In addition to enforcement within the process of approval of building design, construction, and alteration, the Architectural Control Committee may receive the complaints of Owners, inform non-complying Owners of the nature of any noncompliance, and request that such non-complying Owners remedy any violation. In the event that the Architectural Control Committee is unsuccessful in any request to an Owner to remedy a violation, the Association or the Architectural Control Committee may use any of the remedies as set forth in Article X.
6.10 NON-LIABILITY. Neither the Architectural Control Committee nor the Declarant nor their respective successor or assigns shall be liable in damages to anyone submitting plans to them for approval, or to any Owner by reason of mistake in judgment, negligence, or nonfeasance in connection with the approval, disapproval, or failure to approve any plans and specifications. Approval by the Architectural Control Committee shall not be deemed to constitute compliance with the requirements of any local building codes, and it shall be the responsibility of the Owner or other person submitting plans to the Architectural Control Committee to comply therewith.
If any Owner or Builder, once commencement of construction of a Residence begins, fails to complete construction of such Residence and receive a certificate of Occupancy within twelve (12) months from the date of commencement, Declarant shall have the right to repurchase the Lot from the Owner at any time within forty-five (45) days after the expiration of said 12-month period upon giving to the Owner prior written notice of its intention to repurchase the Lot. No new 12-month period shall commence upon the conveyance from one Owner to another. If Declarant repurchases any Lot from Owner pursuant to this Article VII and reconveys the Lot to another Owner, a new 12-month period shall commence. The repurchase price shall be the price received by the Declarant for the Lot, less the unpaid balance of any mortgage or deed of trust, less other amounts owing with respect to the Lot, the nonpayment of which other amounts may be assessed as liens against the Lot, and less all closing costs, title insurance costs, and all legal, and other related costs incurred by Declarant. The provisions of this Article shall be specifically enforceable by Declarant. If Declarant fails to give written notice exercising its right of repurchase within the forty-five (45) day period, it shall waive its right to repurchase. Completion of the Residence shall be deemed to occur when the Owner has been issued a Certificate of Occupancy by appropriate governmental authorities. Declarant shall have no right to repurchase under this Article after December 31, 2008.
In the event of any conflict between the requirements of this Article VIII, the Residential Design Guidelines for Huntington Hills Filing 2, and the requirements of the zoning code of the City of Fort Collins, Colorado, the more restrictive of the requirements shall govern.
8.1 LOTS.
(a) Permitted Uses.
(i) No noxious or offensive activity shall be carried on at any Lot, nor shall anything be done or placed therein which may be or become a nuisance or cause unreasonable embarrassment, disturbance, or annoyance to other Owners in the enjoyment of their Lots.
(ii) No oil or gas drilling or the extraction thereof or mining operations shall be permitted on any Lot. No Lot Owner shall be permitted to drill a well intended for the extraction of water from the ground, nor construct a septic or sewage disposal system on any Lot without prior approval of the Architectural Control Committee. The Declarant shall install or cause to have installed water distribution and sewer collection lines to a point proximate to the property line of each Lot, and connection by the Lot Owner to the facilities shall be mandatory.
(iii) A Lot shall be used exclusively and solely for single family residential purposes. Each residence constructed on one Lot shall comply with the minimum setback and minimum dwelling area requirements of the zoning code of the city of Fort Collins, Colorado. In addition, each Residence shall have at least eleven hundred (1,100) Square feet of living area above grade for all ranch style homes and twelve hundred (1,200) square feet of living area above grade for all bi-level and two-story homes, and a two (2) car attached garage.
(iv) In order to preserve the natural quality and aesthetic appearance of the Property, fencing or plantings, simulating fencing shall be permitted only after approval of the Architectural Control Committee of the color, material, and design thereof in accordance with the procedures set forth in Article VI hereof to insure that such fencing or planting will be in keeping with the character of the Property.
(v) Clotheslines shall be placed within the Lot in such a manner as to be reasonably screened from view from platted roads, or other Lots, or by fencing or other screening approved by the Architectural Control Committee or as otherwise designated and comprised of materials approved by the Architectural Control Committee.
(vi) No exterior antenna or other communication receiving devices (e.g., satellite dish antenna) shall be permitted on any Lot which are visible from neighboring Lots, or platted roads, or which otherwise create a visual nuisance.
(vii) No elevated tanks, or similar permanently affixed equipment or machinery of any kind shall be erected, placed or permitted upon any part of a Lot. Any tank used in connection with any dwelling (e.g. for storage of gas, oil or water) and any type of refrigeration or heating apparatus must be located underground or concealed by appropriate fencing or screening to be approved by the Architectural Control Committee.
(viii) All electric, telephone, television, radio, and other utility lines shall be placed underground when extended from the street or Lot to any dwelling or other improvement on a Lot.
(ix) No mechanical or other equipment shall be located or placed on the roof of any dwelling or building on the Lot.
(x) All areas of Lots shall be maintained in a clean condition.
(xi) No light shall be emitted from any Lot or dwelling which is unreasonably bright or causes unreasonable glare beyond the boundaries of such Lot.
(xii) No modifications to any Lot shall be permitted which are inconsistent with any grading or drainage plan currently in effect for the property.
(b) Special Lot Restrictions.
(i) Height and Setback. All dwellings will be setback from the boundaries of the Lot as provided in the setback limitations set forth in the zoning code of the City of Fort Collins, Colorado or as is set forth on the Plat. No building shall encroach upon any utility or drainage easement provided for in this Declaration. Further, no dwelling and no other structure or above ground improvement on a Lot shall exceed the height as provided in the zoning code of the City of Fort Collins, Colorado. In the event a variance is requested from the City of Fort Collins, Colorado, of any of the aforesaid setback or height limitations, a like variance, approved in writing, must also be obtained from the Architectural Control Committee before such improvement may be constructed on a Lot.
(ii) Restrictions on Orientation of Residence. The Architectural Control Committee shall have the right to designate the direction in which a Residence shall face if constructed on a double frontage Lot and the right to designate the direction in which all garage doors shall face. Residences placed on Lots without a double frontage shall face a street located on the interior of the Property.
(iii) Pools and Tennis Courts. No swimming pool constructed on a Lot shall have lights for night use or other equipment which will constitute a nuisance to any other Owner, and no tennis court so constructed shall have lights for night use. All pools shall be enclosed by a fence or covered in a manner so as to prevent accidental injury and to avoid as being classified as an attractive nuisance. All pools and tennis courts will be kept in good repair and shall be used only at times and in such a manner as to not unreasonably disturb any other Owners.
(iv) Access Access to Lots shall be provided only from the platted roads within the Property.
(c) Pets No animals, livestock, poultry or insects or any kind shall be raised, bred, kept or boarded on the Property; provided, however, that dogs, cats or other generally recognized household pets not to exceed two (2) in number may be kept on each Lot so long as they are not kept for any commercial purpose and so long as such Owner complies with all additional restrictions upon such animals contained in this Declaration. If an Owner chooses to keep house or yard pets, said Owner shall at all times have them under his or her control, whether within the Owner’s Lot or in any other location within the Property. Animals shall not be permitted to roam at will, and at the option of the Association, steps may be taken to control any animals not under the immediate control of their Owners, including the right to impound animals not under such control and charge substantial fees to their Owner for their return. The Association shall have the right to adopt further rules and regulations to enforce this provision.
(d) Animal-Related Maintenance. Any animal allowed to be kept by an Owner pursuant to section 8.1(c) above shall not create or allow to occur any conditions upon the Property which are a nuisance to other Owners.
(e) Landscaping and Maintenance.
(i) No Lot shall be used or maintained as dumping ground for rubbish. No garbage or trash or other waste shall be placed anywhere other than in covered sanitary containers which shall be maintained in good and clean condition. Containers must be screened from view from roads and other Lots by plantings, fences, or in such other manner as approved by the Architectural Control Committee. No waste shall be burned upon any Lot.
(ii) No exterior fires shall be permitted except for barbeque fires contained within receptacles designed for that use. No coal or other type of fuel which gives off smoke, excepting wood and charcoal shall be used for heating, cooking, or any other purpose within a Lot.
(iii) A Lot and all improvements thereon shall be maintained at all times by the Owner in good condition and repair. The Owner shall cause all dwellings and other improvements to be refinished, resurfaced or repaired periodically as effects of damage, deterioration, or weather become apparent. Appearance, color, type of painting, or stain or other exterior condition shall not be changed without prior approval of the Architectural Control Committee. All appropriate repairs and replacements shall be made as often as necessary. Unsightly conditions shall constitute a nuisance as defined in section 8.1(a)(i) hereof.
(iv) At the time of or as soon as reasonably possible following construction of a Residence on a Lot but not later than the latter of seven (7) months or one (1) growing season after substantial completion of the Residence, the Lot shall be suitably landscaped with grass, shrubs, and trees. Thereafter, all grass, shrubs, and trees shall be kept and maintained in an attractive, healthy, live, and growing condition, and all dead or diseased grass areas, shrubs and trees shall be promptly removed and replaced with suitable replacement landscaping. Each Lot Owner shall maintain the landscaping as approved by the Architectural Control Committee upon his lot in good condition.
(f) Automobile. Boat and Camper Parking.
(i) Recreational vehicles, trucks, trailers, mobile homes, truck campers, boats and commercial vehicles shall not be kept, placed, or maintained upon any Lot or platted road in such a manner that such vehicle or boat is visible from neighboring Lots or platted roads. The provisions of this paragraph shall not apply to temporary construction shelters or facilities maintained during and used exclusively in connection with the construction of any building or improvement permitted by this Declaration. Commercial vehicles engaged in the delivery or pickup of goods or services shall be exempted from the provisions of this paragraph providing that they do not remain within a Lot in excess of the reasonable period of time required to perform such commercial function.
(ii) Each Residence shall include at least two (2) completely enclosed and two (2) outside parking spaces within the Lot. Side or rear yard parking is not permitted. Temporary parking shall be permitted on platted roads only in designated areas and may be prohibited from time to time in order to permit the clearance of snow accumulation on and maintenance of the platted road.
(iii) No trailer, vehicle or boat shall be constructed, reconstructed or repaired upon any Lot in such a manner that such activity is visible from neighboring Lots or platted roads.
(g) Signs No signs whatsoever shall be permitted within any Lot, with the exception of those listed below or as permitted by the zoning code of the city of Fort Collins, Colorado.
(i) Signs required by legal proceedings.
(ii) Residential identification signs constructed of materials which are compatible with the architecture of the area, and these shall be subject to the approval of the Architectural Control Committee prior to erection thereof.
(iii) Signs of the type usually used by contractors, subcontractors and tradesmen may be erected during the authorized time of construction; provided that such signs are of the style, color and material approved by Declarant and do not exceed a total face area of four (4) square feet.
(iv) “For Sale” signs on vacant Lots or for Residences under construction must be of the style, color and materials approved by Declarant. With reference to “For Sale” or “For Rent” signs for residential resales, the same may be erected upon a Lot, provided that no more than one (1) sign is erected and that such sign does not exceed a total face area of six (6) square feet unless otherwise approved in advance in writing by the Architectural Control Committee.
(v) No sign shall exceed a height of four (4) feet from grade.
(vi) The Architectural Control Committee shall have the right to promulgate standards for the color, style, materials and location of the foregoing signs (except signs required by legal proceedings) and in such event, all signs shall conform therewith.
8.2 SUBDIVISION AND COMBINING OF LOTS. No Lot may be divided or subdivided or a fractional portion thereof sold or conveyed so as to be held in divided ownership, except that adjoining Lot Owners may sell or purchase adjoining property to accomplish relocation of the boundary line between such Lots if first approved in writing by the Architectural Control Committee, if such sale and purchase will not cause a resulting violation of any setback, building or other restriction contained herein, and if such steps are taken as are necessary to comply with the building and zoning and subdivision codes for the City of Fort Collins, Colorado. In such cases, the new boundary line thus established shall be deemed a new boundary line between the respective Lots, but no setback line or easement established with respect to the former boundary line shall be shifted or changed by reason of the change of boundary line. Two (2) or more adjoining Lots which are under the same ownership may also be combined and developed as one (1) Lot, but only if first approved in writing by the Architectural Control Committee and if such approvals as may be necessary are obtained from the City of Fort Collins, Colorado. Setback lines along the common boundary line of the combined Lots shall be deemed removed and easements created or established along the common boundary line of the combined Lots may be changed without the consent of any person entitled to the use thereof if no improvements have been constructed and such easements provided by written consent of the Architectural Control Committee is first obtained. The Architectural Control Committee shall have the right to require alternative easements to be granted or created by the Owner of the combined Lots. If setback lines are removed or easements are changed along the common boundary line of the combined Lots, the combined Lots shall thereafter be deemed one (1) Lot, and may not thereafter be split or developed into two (2) or more Lots. Further, in the event that two (2) or more adjoining Lots are combined hereunder, they shall be deemed one (1) Lot for the purpose of voting rights, pursuant to Article IV and assessments pursuant to Article V hereof.
8.3 SALES MODEL Notwithstanding any provision to the contrary herein contained, Declarant (or its designated assigns) shall be allowed to use Privately Owned sites designated by it as sales and lease models, conducting therein through agents or employees sales activities customarily associated with model units for a period of twenty (20) years from the date this Declaration is recorded. In addition, Declarant (or its designated assigns) may maintain for said period such signs as may be required to advertise Privately Owned sites for sale and to direct prospective purchasers and lessees to the sales and lease models.
8.4 ORIGINAL SUBDIVISION AND DEVELOPMENT WORK. Nothing herein contained shall be deemed to limit or restrict the right of Declarant, or its designated assigns, their contractors, employees, materialmen or assigns from entering upon all or any portion of the Project for the purpose of conducting therein and thereon such work of subdivision, improvement, construction and development as Declarant may deem necessary or desirable; provided, however, that all such work shall be performed without cost or expense to any Owner other than Declarant or Declarant’s designated successor, except in such instances where another Owner or Owners have expressly contracted for the performance of said work.
9.1 PUBLIC LIABILITY AND ADDITIONAL INSURANCE COVERAGE.
(a) Each owner shall obtain in his own name and keep in force at all times during his ownership of a Lot public liability insurance in minimum amounts prescribed from time-to-time by the Association.
(b) Any Owner may, if he so desires and at the Owner’s sole expense, carry any and all other insurance coverage the Owner deems advisable.
9.2 ASSOCIATIONS DUTY TO OBTAIN AND MAINTAIN INSURANCE. The Association shall be required to maintain liability insurance insuring against injury to persons or property as a result of use of the Common Areas. Such insurance shall be maintained with a company licensed to do business in the state of Colorado and shall have a minimum limits of liability for injury or damage to persons or property in the amount of Five Hundred Thousand Dollars ($500,000.00), which amount may be adjusted periodically and increased if the same is required in the reasonable judgment of the Directors and if such increased amounts of insurance are available for purchase at such time.
9.3 DAMAGE OR LOSSES FROM ASSOCIATION’S INSURED HAZARDS. In the event of loss, damage or destruction by fire or other casualty to any property covered by insurance written in the name of the Association or for which the Association is named as co-insured, whether in its own name or as Trustee, the Board shall upon receipt of the insurance proceeds, contract to repair, reconstruct, or rebuild any damage or destroyed portions of the Common Areas to as good condition as formerly existed. All insurance proceeds received by the Association shall be deposited in a bank, savings and loan association, or other financial institution with a proviso agreed to by said bank, association, or institution that such funds may be withdrawn only by signature of at least two-thirds (2/3) of the members of the Board of Directors. The Board, or if it shall be agreed to by the Board, the insurance company or companies providing insurance proceeds, shall advertise for sealed bids from any licensed contractor, and then may negotiate with any contractor, who may be required to provide a full performance and payment bond for the repair, reconstruction or rebuilding or such destroyed Common Areas. If such insurance proceeds are insufficient to cover the cost of repair or replacement of the Common Areas so damaged or destroyed, the Association may make a Reconstruction Assessment against all Lot Owners at a uniform rate, to cover the additional cost of repair or replacement not covered by the Association proceeds, in addition to any other Common Assessments made against such Owners, said Reconstruction Assessment to be in effect upon an affirmative vote of the Board of Directors.
9.4 ANNUAL REVIEW OF POLICIES. All insurance policies shall be reviewed at least annually by the Board of Directors in order to ascertain whether the coverage contained in the policies is sufficient to make any necessary repairs or replacements of the property which may have been damaged or destroyed.
10.1 RIGHT TO ENFORCE. The provisions herein contained shall run with the land and be binding upon and inure to the benefit of the Declarant and the Owners of every Lot within the Property. These provisions may be enforced as hereinafter provided by Declarant acting for itself, the Architectural Control Committee, or as trustee on behalf of all of the Owners of Lots. These provisions may also be enforced by the Association upon the transfer to it of Declarant’s duties and responsibilities under the Declaration at any time after the termination of the Class B membership pursuant to the terms and conditions stated herein. Each Owner, by acquiring an interest in the Property, irrevocably appoints the Declarant as such Owner’s attorney-in-fact for such purposes; provided, however, that if an Owner notifies the Declarant in writing of a claimed violation of the provisions herein contained and Declarant falls to take action to remedy the violation within thirty (30) days after receipt of such notification, then, and in that event only, an Owner may separately at such Owner’s own cost and expense, enforce the provisions herein. Failure by the Declarant, Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. In addition, the Association shall have the right to commence proceedings for temporary or permanent injunctive relief to compel compliance with these Covenants and Restrictions. The Declarant, for itself, and for all future owners within Huntington Hills Filing 2 project, hereby waives the right to require the Association or Declarant to post a bond before securing a temporary injunction or restraining order. All costs and expenses incurred in connection with legal proceedings to enforce compliance with the Declaration shall be assessed against the delinquent Owner in the same fashion as a Special Assessment hereunder.
10.2 Remedies. Violation of any of the provisions of this Declaration shall give the Declarant and the Association the right:
(1) to enter upon the portion of the Property wherein said violation or breach exists and summarily abate and remove, at the expense of the Owner, any structure, thing, or condition that may exist thereon contrary to the intent and meaning of the provisions hereof;
(2) to take such actions as are necessary to bring the subject property into compliance with the provisions hereof or to hire services to effect such compliance upon an affirmative vote of two-thirds (2/3) of the Board of Directors of the Association;
(3) to prosecute a proceeding at law or in equity against the person or persons who have violated or are attempting to violate any of the provisions herein to enjoin or prevent them from doing so and to collect such damages as are appropriate; and
(4) to cause said violation to be remedied or to recover damages for said violation. The Association shall not take any action whatsoever with regard to the external repair of any improvements constructed on a Lot, unless said external repair is necessary for the health, safety and welfare of the remaining Lots and improvements constructed thereon. Any costs, expenses and attorneys’ fees incurred in connection with any actions taken pursuant to this Article X by Declarant or the Association shall be immediately due and payable to such party by the Owner or Owners of the Lot or Lots affected and all such costs, expenses and attorneys’ fees shall immediately become a lien against the Lots and the Residences thereon, which lien shall be treated in the same manner as liens discussed in Article V.
11.1 DURATION AND EXTENSION. This Declaration, every provision hereof and every covenant, condition, restriction and reservation contained herein shall run with and bind the land and shall continue in full force and effect for a period of fifty (50) years from the date hereof, and shall thereafter be automatically extended for successive periods of five (5) years unless otherwise terminated or modified as hereinafter provided.
11.2 ANNEXATIONS. Declarant is also developing and marketing the real property described on Exhibit B attached hereto (the “Additional Property”). The Declarant shall have the right, without the approval of any other Lot Owner, to make all or part of the Additional Property, from time to time, subject to the terms of this, Declaration by executing a supplement to this Declaration and recording the same with the Clerk and Recorder of Larimer County, Colorado. Upon the recording of said supplement, all of the real property described in the supplement shall be subject to and shall have the benefits of the terms of this Declaration.
11.3 AMENDMENT AND MODIFICATION. This Declaration or any provision hereof, or any covenant, condition or restriction contained herein, may be terminated, extended, modified or amended as to the whole of the Property or any portion thereof, with the written consent of the members holding at least sixty-six and two-thirds percent (66-2/3%) of the Class A membership in the Association during the first twenty-five (25) year period of these covenants and thereafter by not less than a majority of the Class A membership in the Association. Such termination, extension, modification or amendment shall be immediately effective upon recording the proper instrument in writing, executed and acknowledged by such Owners in the Office of the Clerk and Recorder of Larimer County, Colorado. Notwithstanding the foregoing provisions of this paragraph to the contrary, the Declarant may, after obtaining the written consent of any First Mortgagee, but without the necessity of obtaining the written consent of any Member, make such amendments and modifications to this Declaration as may be necessary or desirable in connection with the provisions of the Colorado Common Interest Ownership act, as it may be amended from time to time and in connection with qualification or continued qualification for Federal Housing Administration and Veterans Administration loan guaranties and for compliance with GNMA, FHLMC and FNMA requirements.
11.4 FHA/VA APPROVAL. As long as there is a Class B membership, the following actions will require prior approval of the Federal Housing Administration or the Veterans Administration: annexation of additional properties, dedication of Common Areas and amendment of this Declaration.
12.1 DRAINAGE AND GRADING PLANS. The Association shall maintain currently approved drainage and grading plans indicating the proper elevation, drainage easements, and drainage-related improvements for the Property. The plan shall be maintained by the Association and available in accordance with Section 6.5 above.
12.2 CONTROL OF DRAINAGE AND GRADING. No structure, planting or other materials shall be placed or permitted to remain or other activities undertaken which may damage or interfere with the established master grading and drainage plans for the Property or create erosion or sliding problems. Drainage areas of each Lot shall be constructed and maintained continuously by the Owners of each Lot, except for those improvements for which a public entity or utility company is responsible.
13.1 NON-WAIVER. Failure by the Declarant, the Association, the Architectural Control Committee or any Owner to enforce any covenant, condition, restriction, easement, reservation or other provision contained in this Declaration shall in no way or event be deemed to be a waiver of the right to do so thereafter.
13.2 SEVERABILITY. The provisions of this Declaration shall be deemed to be independent and severable, and the invalidity of anyone or more of the provisions hereof, or any portion thereof, by judgment or court order or decree shall in no way affect the validity of enforceability or any of the other provisions, which other provisions shall remain in full force and effect.
13.3 NUMBER AND GENDER. Unless the context provides or required to the contrary, the use of the singular herein shall include the plural, the use of the plural shall include the singular, and the use of any gender shall include all genders.
13.4 CAPTIONS. The captions to the sections are inserted herein only as a matter of convenience and for reference and are in no way to be construed to define, limit or otherwise describe the scope of this Declaration nor the intent of any provision hereof.
13.5 NOTICES. Any notice required to be sent to any member or Lot Owner under the provisions of this Declaration shall be deemed to have been properly sent when mailed, postage prepaid, to the last known address of the person who appears as such member or Owner on the records of the Association at the time of such mailing.
13.6 LIMITED LIABILITY. Neither Declarant, the Association, the Board of Directors of the Association, the Architectural Control Committee, nor any member, agent or employee of any of the same shall be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice and such parties shall be reimbursed by the Association for any costs and expenses, including attorneys’ fees, reasonably incurred by them with the prior approval of the Association (which approval shall not unreasonably be withheld) as a result of threatened or pending litigation in which they are or may be named as parties.
13.7 COVENANTS RUNNING WITH THE PROPERTY. The benefits, burdens, and other provisions contained in this Declaration shall be covenants running with and binding upon the Property.
13.8 INTERPRETATION. The provisions hereof shall be liberally construed to effectuate their purpose of creating a uniform plan for the development and operation of Huntington Hills Filing 2 project. Failure to enforce any provision hereof shall not constitute a waiver of the right to enforce said provisions of this Declaration and the terms of the Residential Design Guidelines, the more restrictive shall control. In determining which of the interpretations shall be deemed more restrictive the restriction which prevents the greatest variety and intensity of use shall be deemed the most restrictive.
13.9 BINDING UPON AND INURE TO SUCCESSORS. The benefits, burdens, and other provisions contained in this Declaration shall be binding upon, and inure to the benefit of the Declarant, the Association, and all Owners and upon and to their respective heirs, executors, administrators, successors and assigns.
13.10 NON-WAIVER. All of the conditions covenants, restrictions and reservations contained in this Declaration shall be construed together, but if it shall at any time be held that anyone of said conditions, covenants, restrictions and reservations, or any part thereof, is invalid, or for any reason become unenforceable, no other conditions, covenants, restrictions and reservations or any part thereof shall be thereby affected or impaired.
IN WITNESS WHEREOF, the parties hereunto placed their hands and seal the day and year first above written.
HUNTINGTON HILLS CORPORATION,
a Colorado corporation
By: /s/
Marcus Palkowitsh, President
Attest:
Richard Connell, Secretary
SEAL
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing Declaration Creating Covenants, Conditions, Easements, and Restrictions for Huntington Hills Filing 2 was acknowledged before me this 3 day of December 1992 by Marcus Palkowitsh as President of Huntington Hills Corporation, a Colorado corporation, the Declarant.
Witness my hand and official seal.
My Commission Expires: 5-25-93
SEAL
Jeanne T Liston
Notary Public
DESCRIPTION OF PROPERTY SUBJECT TO THE DECLARATION CREATING COVENANTS, CONDITIONS, EASEMENTS AND RESTRICTIONS FOR HUNTINGTON HILLS FILING 2
Lots 106 through 215 and Tract A inclusive in Huntington Hills Filing 2 in the City of Fort Collins, Larimer County, Colorado, according to Plat recorded June 20, 1984, Book 2277 at Page 523 of the Records of the Clerk and Recorder of Larimer County, Colorado.
A tract of land situated in section 12, Township 6 North, Range 69 West of the sixth P.M., and Section 7 Township 6 North, Range 68 West of the 6th P.M., being more particularly described as follows:
Considering the North Line of the NW1/4 of said section 12 as bearing South 89 degrees 06 minutes 33 seconds East and with all bearings contained herein relative thereto:
BEGINNING at the North Quarter Corner of said Section 12, proceed thence South 89 degrees 09 minutes 25 seconds East, 2683.95 feet along the North line of the NE ¼ of said Section 12 to Northeast Corner of said section 12;
thence South 00 degrees 02 minutes 19 seconds West, 1360.70 feet along the East line of the NE1/4 of said Section 12;
thence leaving said East line of the NE1/4 of said Section 12, South 89 degrees 57 minutes 41 seconds East, 30.00 feet;
thence South 26 degrees 22 minutes 41 seconds East, 570.20 feet;
thence South 09 degrees 35 minutes 47 seconds West, 216.64 feet;
thence South 23 degrees 08 minutes 19 seconds West, 554.90 feet;
thence North 89 degrees 57 minutes 41 seconds West, 30.00 feet to the existing East Quarter Corner of said Section 12;
thence South 00 deqrees 03 minutes 37 seconds West, 568.09 feet;
thence North 89 degrees 56 minutes 23 seconds West, 530.00 feet;
thence South 00 degrees 03 minutes 37 seconds West, 85.58 feet;
thence North 87 deqrees 29 minutes 45 seconds West, 258.21 feet;
thence North 87 degrees 29 minutes 30 seconds West, 7l5.82 feet;
thence North 87 degrees 47 minutes 30 seconds West, 750.07 feet;
thence North 60 degrees 08 minutes 29 seconds West, 509.70 feet;
thence North 00 degrees 15 minutes 13 seconds East, 343.38 feet more or less to the Center Quarter Corner of said Section 12;
thence North 89 degrees 40 minutes 22 seconds West, 2218.87 feet more or less along the South line of the NW1/4 of said Section 12 to the existing Southeast Corner of the Ke1mar Strip, Second Filing, a subdivision on file in the office of the Larimer County Clerk and Recorder, thence along the East line of said Kelmar Strip, Second Filing, North 00 degrees 24 minutes 32 seconds West, 1332.30 feet to the existing Northeast Corner of said Kelmar Strip, Second Filing;
thence South 88 degrees 57 minutes 22 seconds East, 1634.53 feet;
thence North 00 deqrees 29 minutes 24 seconds East, 344.09 feet;
thence North 64 degrees 37 minutes 06 seconds West, 239.99 feet;
thence North 31 degrees 12 minutes 14 seconds West, 353.28 feet;
thence North l8 degrees 52 minutes O4 seconds West, 298.33 feet;
thence North 10 degrees 23 minutes 28 seconds West, 295.53 feet;
thence South 89 degrees 06 minutes 33 seconds East, 1152.8l feet more or less along the North line at the NW1/4 of said section 12 to the North Quarter Corner of said Section 12 and the TRUE POINT OF BEGINNING.
County of Larimer, State of Colorado
EXCEPT a County Road right of way over the East 30 feet thereof as now is used:
EXCEPT land described in Book 2153 at Page 863;
EXCEPT the land described in Book 2249 at Paqe 2006;
EXCEPT all of HUNTINGTON HILLS FIRST PHASE, now known as HUNTINGTON HILLS P.U.D. FILING I,
and
EXCEPT all of HUNTINGTON HILLS, FILING TWO,
Being a portion of the ESTATES AT HUNTINGTON HILLS, FILING ONE, A P.U.D.
June 16, 1994
Mr. Scott Petrilla
348 Brinn Court
Fort Collins, CO 80525
RE: Huntington Hills Filing 2 Homeowners Association
Covenants, Conditions, Easements, and Restrictions
Dear Mr. Petrilla:
Enclosed per your request is a copy of the Huntington Hills Filing 2 Homeowners Association Covenants, Conditions, Easements, and Restrictions for your files. You should have received a copy of this material from the realtor or title insurance company included with your title insurance commitment.
Should you have any questions or problems, please contact Mike Rossi, Vice President of the Huntington Hills Filing 2 Homeowners Association. Mr. Rossi is also a resident of Huntington Hills. His address and phone number are as follows:
Mike Rossi
5900 Colby Street
Fort Collins, CO 80525
(303) 229-0670
If you need further assistance, please do not hesitate to contact our office.
Sincerely yours,
Marcus S. Palkowitsh
President, Huntington Hills Filing 2 Homeowners Association
MSP/dlh
Enclosure (1)
cc: Mike Rossi