Antelope Hills Declaration of protective covenants

 

ARTICLE IV - DUTIES AND POWERS OF MASTER ASSOCIATION

 

Section 4.1. General Duties and Powers of Master Association: The Master Association has been formed to further the common interests of the Owners. The Master Association, acting through the Board or through persons to whom the Board has delegated any authorized powers of the Board, shall have the duties and powers hereinafter set forth and, in general, the powers to perform its duties described in this Declaration and, subject to any limitation set forth in this Declaration, the power to do anything that may be necessary or desirable to further the common interests of the Owners, or to maintain, improve and enhance the Common Area and other Master Association properties.

 

Section 4.2. Duty to Accept Property and Facilities Transferred by the Declarant: The Master Association shall accept title to any Common Area, including any improvements thereon, and related real and personal property, transferred to the Master Association by the Declarant. together with the responsibility to perform any and all administrative functions associated therewith, provided that such property and functions are not inconsistent with the provisions contained in this Declaration. Property interests transferred to the Master Association by Declarant may include fee simple title, easements, leasehold interests and licenses to use.

 

Section 4.3. Duty to Manage and Care for Property:The Master Association shall manage, operate, care for, maintain and repair all Common Areas and related Master Association properties and keep them in a safe, attractive and desirable condition for the use and enjoyment of the Owners. and the cost of said management, operation, maintenance, care, and repair shall be a Common Expense. The Master Association shall not need prior approval of its Members to cause such maintenance to be accomplished. The Master Association shall have the irrevocable right to have access to each Lot from time to time during reasonable hours as may be necessary for the maintenance, repair, or replacement of any portion of the Common Area or to do any other work required or reasonably necessary under this Declaration for the proper performance of its duties hereunder, or at any time for making emergency repairs therein necessary to prevent damage to the Common Area or to another Lot. Damage to any part of a Lot resulting from the maintenance, repair, emergency repair, or replacement of any portion of the Common Area or as a result of emergency repairs to another Lot, at the instance of the Master Association, shall be a Common Expense of all of the Owners. No diminution or abatement of Common Expense Assessments shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or improvements or from action taken to comply with any law, ordinance, or order of a governmental authority. The damaged improvements shall be restored to substantially the same condition in which they existed prior to the damage. Notwithstanding the foregoing, if any such damage is the result of the carelessness or negligence of any Owner, then such Owner shall be solely responsible for the costs and expenses of repairing such damage.

 

Section 4.4. Duty to Pay Taxes: The Master Association shall pay all ad valorem taxes and governmental assessments levied upon the Common Area and other Master Association properties to which the Master Association holds fee simple title, and shall also pay all other taxes and assessments payable by the Master Association. Nevertheless, the Master Association shall have the right to contest in good faith any such taxes or assessments.

 

Section 4.5. Casualty Insurance:To the extent deemed desirable by the Board, the Master Association shall obtain and keep in full force and effect at all times, to the extent reasonably obtainable, casualty, fire and extended coverage insurance with respect to all insurable improvements of the Common Area and personal property owned by the Master Association, with the Master Association as the owner and beneficiary of such insurance. Insurance proceeds shall be used by the Master Association for the repair and replacement of the property for which the insurance was carried, unless otherwise provided in this Declaration. Premiums for all insurance carried by the Master Association shall be a Common Expense.

 

Section 4.6. Liability Insurance: To the extent deemed desirable by the Board, the Master Association shall obtain and keep in fill force and effect at all times, to the extent reasonably obtainable, broad form comprehensive liability insurance covering public liability for bodily injury and property damage in such amounts as the Board may from time to time determine, but not in an amount less than $1,000,000.00 per person, per occurrence, covering all claims for bodily injury and/or property damage. The policy shall contain a “severability of interests” endorsement.

 

Section 4.7. General Provisions Respecting Insurance: Insurance obtained by the Master Association may contain such deductible provisions as good business practice may dictate. Insurance obtained by the Master Association shall, to the extent reasonably possible without undue cost, contain a waiver of rights of subrogation as against the Master Association and each Owner, and against any officer, director, agent or employee of any of the foregoing, and waivers of any defense based on invalidity arising from any acts of an Owner, and shall provide that such policies may not be canceled or materially modified without at least thirty (30) days prior written notice to all of the insurers, including First Lienholders. Duplicate originals of all policies and renewals thereof, together with proof of payment of premiums, shall be delivered to all First Lienholders who have requested in writing the same at least ten (10) days prior to expiration of the then current policies. The insurance policy or policies shall identify the interest of each Owner (Owner’s name and Lot or (Home designation) and First Lienholder. To the extent reasonably possible, and provided the Declarant reimburses the Master Association for any additional premium payable on account thereof, insurance obtained by the Master Association shall name the Declarant as an additional insured and contain a waiver of rights of subrogation as against the Declarant and any officer, director, agent or employee of the Declarant. Casualty, fire and extended coverage insurance may be provided under blanket policies covering the Common Area and other Master Association properties and/or property of the Declarant. Insurance shall be written with companies licensed to do business in Colorado and having a Best’s Insurance Report rating of at least Class X-B, or BBB+, whichever is greater, covering at least the risks set forth herein. The Board shall not obtain any policy where: (i) under the terms of the insurance company’s charter, bylaws or policy, contributions or assessments may be made against the mortgagor, Lienholder or Lienholder’s designee, or become a Lien against the Liened property superior to a First Lien; or (ii) by the terms of carrier’s charter, bylaws or policy, lost payments are contingent upon action of the company’s board of directors, policy holders, or members; or (iii) the policy includes any limiting clauses (other than insurance conditions) which could prevent Lienholders or the mortgagor from collecting insurance proceeds. All policies shall contain a standard non-contributory Lienholder clause in favor of each First Lienholder of a Lot, which clause shall provide that the loss, if any, thereunder shall, be payable to, the Master Association, for the use and benefit of First Lienholders as their interest may appear. If it can be obtained without undue cost, the hazard insurance policy shall further contain an Agreed Amount Endorsement or its equivalent, and, if appropriate, an Increased Cost of Construction Endorsement or its equivalent. Insurance proceeds shall be used by the Master Association for the repair or replacement of the property for which the insurance was carried. Each Owner hereby irrevocably appoints the Master Association as attorney-in-fact for the purpose of purchasing and maintaining such insurance, including: (a) the collection and appropriate disposition of the proceeds thereof, (b) the negotiation of losses and execution of releases of liability; (c) the execution of all documents; and (d) the performance of all other acts necessary to accomplish such purpose. No distribution of any insurance proceeds shall be made to any Owner whose Lot is encumbered by a First Lien unless any such proceeds are made payable jointly to such Owner and such Owner’s First Lienholder, as their interest may then appear in the County’s real estate records.

 

Section 4.8. Fidelity Coverage: To the extent reasonably obtainable, the Master Association shall obtain and keep in fill force and effect at all times a fidelity policy or bond providing fidelity coverage against dishonest acts on the part of directors, officers, employees and volunteers of the Master Association responsible for handling funds collected and held for the benefit of the Owners or otherwise belonging to or administered by the Master Association. All such bonds shall contain waivers by the issuers of all defenses based upon the exclusion of persons serving without compensation from the definition of “employee(s)” or similar terms or expressions. The premium on all bonds required herein, except those maintained by a managing agent, shall be paid by the Master Association as a cost of insurance. The bonds shall provide that they may not be canceled or substantially modified (including cancellation for nonpayment of a premium) without at least ten (10) days prior written notice to the Master Association and to any First Lienholder who requests that such notice be given.

 

Section 4.9. Other Insurance and Bonds:if the Project is located in an area identified by the Secretary of Housing and Urban Development as an area having special flood hazards and the sale of flood insurance has been made available under the National Flood Insurance Act of 1968, as amended, the Master Association shall obtain a blanket policy of flood insurance on the Common Area, if within such identified area, in an amount which is the lesser of the maximum amount of insurance available under the Act, the aggregate unpaid principal balance of the First Liens on the Lots, or the value of the insurable improvements. The Master Association shall obtain and maintain workmen’s compensation and employer’s liability insurance as may be necessary to comply with applicable laws. The Master Association shall have the power to obtain such other insurance and such other fidelity, indemnity or other bonds as the Master Association shall deem necessary or desirable.

 

Section 4.10. Duty to Prepare Budgets: The Master Association shall prepare budgets as may be necessary or desirable in connection with the performance of any duties or the exercise of any powers of the Master Association under this Declaration.

 

Section 4.11. Duty to Levy and Collect Assessments:The Master Association shall levy and collect Assessments as elsewhere provided in this Declaration.

 

Section 4.12. Duty to Invest Funds: The Master Association shall invest its funds so as to achieve a reasonable rate of return in light of its needs for certain liquidity and the safety of such funds.

 

Section 4.13. Power to Acquire Property and Construct Improvements: Other than property received from Declarant (the conveyance of which is governed by Section 4.2 hereof), and subject to the limitations set forth in this Declaration, the Master Association may acquire property or interests in property for the common benefit of Owners, including improvements and personal property. Subject to the limitations set forth in this Declaration, the Master Association may construct improvements on property and may repair, maintain, remodel and demolish existing improvements.

 

Section 4.14. Power to Adopt Rules and Regulations: The Master Association, acting through the Board, or the Committee, may from time to time adopt, amend, repeal and enforce Rules and Regulations as may be deemed necessary or desirable with respect to the interpretation and implementation of this Declaration, the operation of the Master Association, or the use and enjoyment of the Common Area. Any such Rules and Regulations shall be reasonable and uniformly applied. Each Owner shall comply with such Rules and Regulations. In the event of any conflict between the Rules and Regulations and the provisions of this Declaration, the provisions of this Declaration shall prevail.

 

Section 4.15. Power to Enforce Declaration, Articles. Bylaws, and Rules and Regulations:The Master Association shall have the power to enforce the provisions of this Declaration and the provisions of the Articles, the Bylaws, and the Rules and Regulations and shall take such action as the Board deems necessary or desirable to cause such compliance by each Owner and each Related User. Without limiting the generality of the foregoing, the Master Association shall have the power to enforce the provisions of this Declaration, the Articles, the Bylaws, and of the Rules and Regulations by any one or more of the following means: (a) by commencing and maintaining actions and suits to restrain and enjoin any breach or threatened breach of the provisions of this Declaration, the Articles, the Bylaws or the Rules and Regulations, by mandatory injunction or otherwise; (b) by commencing and maintaining actions and suits to recover damages for breach of any of the provisions of this Declaration, the Articles, the Bylaws or the Rules and Regulations; (c) by levying and collecting penalty assessments; (d) by levying and collecting reasonable and uniformly applied fines and penalties, established in advance in the Rules and Regulations, from any Owner or Related User for breach of this Declaration, the Articles, the Bylaws or the Rules and Regulations by such Owner or such Related User; and (e) by exercising any remedy or remedies for nonpayment of Assessments pursuant to Sections 5.11 and 5.12 hereof.

 

Section 4.16. Power to Convey and Dedicate Property to Government Agencies: Subject to Section 2.1 of this Declaration, the Master Association shall have the power to grant, convey, dedicate or transfer any Common Area or Master Association properties or facilities to any public or Governmental agency or authority for public use; however, if the means of ingress to and egress from a Lot is through any such Common Area, then any such grant, conveyance, dedication or transfer shall be effected so as to provide continued ingress and egress for the benefit of the Owner of such Lot.

 

Section 4.17. Power to Borrow Money: Subject to the limitations contained in this Declaration, the Master Association shall have the power to borrow money and, with the prior approval of the Owners of not less than two-thirds (2/3) of the Lots then subject to this Declaration, the power to encumber Master Association properties as security for such borrowing. Further, the Owners shall obtain the approval of any First Lienholder prior to communicating his or her approval to the Master Association.

 

Section 4.18. Power to Employ Managers; Management Contracts: The Master Association shall have the power to retain and pay for the services of a manager or managers to undertake any of the management duties and functions for which the Master Association has responsibility, and the Master Association may delegate any of its duties, powers or functions to any such manager. Notwithstanding any delegation to a manager of any duties, powers or functions of the Master Association, the Master Association and the Board shall remain ultimately responsible for the performance and exercise of such duties, powers and functions.

 

Section 4.19. Power to Engage Employees, Agents and Consultants: The Master Association shall have the power to hire and discharge employees and agents and to retain and pay for legal, accounting and other services as may be necessary or desirable in connection with the performance of any duties or the exercise of any powers of the Master Association under this Declaration.

 

Section 4.20. General Corporate Powers: The Master Association shall have all of the ordinary powers and rights of a Colorado nonprofit corporation, including without limitation the power and right to enter into partnerships and other agreements, subject only to such limitations upon such powers as may be set forth in this Declaration or in the Articles or the Bylaws. The Master Association shall also have the power to do any and all lawful things which may be authorized, required or permitted to be done under this Declaration, or under the Articles, the Bylaws or Rules and Regulations, and to do and perform any and all acts which may be necessary or desirable for, or incidental to, the exercise of any of the express powers or rights of the Master Association under this Declaration or under the Articles, Bylaws or Rules and Regulations.

 

Section 4.21. Condemnation: if at any time or times during the continuance of ownership of the Common Area by the Master Association pursuant to this Declaration, all or any part of the Common Area shall be taken or condemned by any public authority or sold or otherwise disposed of in lieu of or in avoidance thereof, the following provisions of this Section 4.21 shall apply:

(a) Proceeds: All compensation, damages, or other proceeds received from an entity having the power of condemnation. pursuant to either a condemnation action or a sale in lieu of condemnation. is hereafter called the “Condemnation Award.”

(b) Complete Taking: In the event that the entire Common Area is taken or condemned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the Condemnation Award shall be used to replace the Common Area, if practicable. In the event it is not practicable to replace the Common Area, in the sole discretion of the Board, then the Condemnation Award shall be apportioned among the Owners on the same basis as set forth in Subsection (c) of this Section 4.21, provided, however, that if a standard different from the value of the property as a whole is employed as the measure of the Condemnation Award in the negotiation. judicial decree or otherwise, then in determining such shares the same standard shall be employed to the extent it is relevant and applicable. On the basis of the principle set forth in Subsection (c) below, the Master Association shall as soon as practicable determine the share of the Condemnation Award to which each Owner is entitled. Such shares shall be paid into separate accounts and disbursed as soon as practicable by check made payable jointly to Owners and their respective First Lienholders, as their interest may then appear in the County’s real estate records.

(c) Partial Taking: In the event that less than the entire Common Area is taken or condemned or sold or otherwise disposed of in lieu of or in avoidance thereof, and the Condemnation Award, in the sole discretion of the Board, is sufficient to completely rebuild and or replace the Common Area, and improvements thereon, damaged or taken by the condemning public authority, the Condemnation Award shall first be applied by the Master Association to the rebuilding and/or replacement of the Common Area, and improvements thereon, damaged or taken unless a “Declaration Not to Rebuild” signed by the Owners representing not less than sixty-seven percent (67%) of the votes in the Master Association and not less than sixty-seven percent (67%) of First Lienholders of record is recorded in the real property records of the County within one hundred (100) days of the date such property was taken or otherwise disposed of indicating their intention not to rebuild and replace. If the Board determines that the Condemnation Award is not sufficient to completely rebuild and/or replace the Common Area, and improvements thereon, damaged or taken, then the Board shall call a special meeting of the Members to approve a special assessment to fund any additional costs of rebuilding or replacement as is provided in Section 5.7 of this Declaration. If such special assessment is approved by the Members as provided in Section 5.7, the Master Association shall first apply the Condemnation Award and then the special assessment to the rebuilding and/or replacement of such Common Area, and improvements thereon. Any surplus of the special assessment not used for rebuilding and/or replacement shall be disbursed to the Owners in equal shares (or as close to equal shares as is reasonably practicable). If the special assessment is not approved by the Members, or if a proper “Declaration Not to Rebuild” is signed and recorded as provided above, the Condemnation Award shall be allocated and disbursed as hereinafter provided. Any surplus of the Condemnation Award or other portion thereof not used for rebuilding and replacement shall be allocated according to the following procedures. The Owners of each Lot shall be entitled to a share of the Condemnation Award to be determined in the following manner: As soon as practicable the Master Association shall reasonably and in good faith allocate the Condemnation Award between compensation, damages, or other proceeds and shall apportion the amounts so allocated among the Owners as follows: (i) the total amount allocated to the taking or injury to the Common Area shall be apportioned equitably among the Owners according to the loss suffered; (ii) the total amount allocated to severance damages shall be apportioned equitably to those Lots which were not taken or condemned; and (iii) the total amount allocated to consequential damages and any other takings or injuries shall be apportioned as the Master Association determines to be equitable in the circumstances. If the allocation of the Condemnation Award is already established in negotiations, judicial decree, or otherwise, then in allocating the Condemnation Award the Master Association shall employ such allocation to the extent it is relevant and applicable. Distributions of apportioned proceeds shall be disbursed as soon as practicable in the same manner as provided in Subsection (b) of this Section 4.21.

(d) Notice: The Master Association shall notify in writing each First Lienholder of any Lot that has requested in writing such notice, of the commencement of the condemnation proceedings against the Common Area and shall notify said Lienholders in the event of the taking of all or any part of the Common Area, if the value of the Common Area taken exceeds $10,000.00.

 

Section 4.22 Damage; Destruction of Common Area Improvements:

 

(a) Association as Attorney-in-Fact -- Damage and Destruction: -- Damage and Destruction. This Declaration does hereby make mandatory the irrevocable appointment of an attorney-in-fact to deal with the issue of the total or partial destruction to Common Area improvements. Title to any Lot is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed from the Declarant or from any subsequent Owner shall constitute appointment of the attorney-in-fact herein provided. All of the Owners irrevocably constitute and appoint the Master Association, in their names, place, and stead for the purpose of dealing with the issue of the total or partial destruction of the Common Area improvements as hereinafter provided. As attorney-in-fact, the Master Association, by its President and Secretary, shall have full and complete authorization, right and power to make, execute, and deliver any contract, deed or any other instrument with respect to the interest of an Owner which is necessary and appropriate to exercise the powers herein granted. Repair and reconstruction of the Common Area improvement(s) as used in the succeeding subsections means restoring the Common Area improvement(s) to substantially the same condition in which it existed prior to the damage. Except as otherwise herein provided, the proceeds of any insurance collected shall be available to the Master Association for the purpose of repair. restoration, or replacement unless the Owners and First Lienholders agree not to rebuild or repair in accordance with the provisions set forth hereinafter. Assessments by the Master Association for those purposes stated herein shall not be abated during the period of insurance adjustment and repair and reconstruction.

 

(b) Proceeds Sufficient: In the event of damage or destruction to the Common Area improvements to the extent of not more than sixty-six and two-thirds percent (66-2/3%) of the total replacement cost thereof, not including land, due to fire or other disaster, the insurance proceeds, if sufficient to reconstruct the Common Area improvement(s) shall be applied by the Master Association as attorney-in-fact, to such reconstruction, and the Common Area improvement(s) shall be promptly repaired and reconstructed. The Master Association shall have full authority, right, and power, as attorney-in-fact, to cause the repair and restoration of the Common Area improvements(s).

 

(c) Proceeds Insufficient; Not More Than 2/3 Damage: If the insurance proceeds are insufficient to repair and reconstruct the Common Area improvement(s), and if such damage is to the extent of not more than sixty-six and two-thirds percent (66-2/3%) of the total replacement cost of the Common Area improvement(s), not including land, such damage or destruction shall be promptly repaired and reconstructed by the Master Association, as attorney-in-fact, using the proceeds of insurance and the proceeds of an assessment to be made against all of the Owners. Such deficiency assessment shall be a Common Expense and made pro rata according to the number of Lots in the Master Association and shall be due and payable within thirty (30) days after written notice thereof. The Master Association shall have full authority, right, and power, as attorney-in-fact, to cause the repair or restoration of the Common Area improvement(s) using all of the insurance proceeds and such assessment. The deficiency assessment provided for herein shall be a debt of each Owner and a lien on his Lot and be enforced and collected as is provided in this Declaration with respect to special assessments. In addition thereto, the Master Association, as attorney-in-fact, shall have the absolute right and power to sell the Lot of any Owner refusing or failing to pay such deficiency assessment within the time provided, and if not so paid, the Master Association shall cause to be recorded a notice that the Lot of the delinquent Owner shall be sold by the Master Association, as attorney-in-fact. The proceeds derived from the sale of such Lot shall be used and disbursed by the Master Association, as attorney-in-fact, in the following order:

(1) for payment of the balance of the lien of any First Lien on the Lot;

(2) for payment of taxes and special assessment liens against the Lot, in favor of any assessing entity;

(3) for payment of unpaid Common Expenses assessed against the Lot;

(4) for payment of junior Liens and encumbrances on the Lot in the order of and to the extent of their priority; and

(5) the balance remaining, if any, shall be paid to the Owner.

 

(d) Proceeds Insufficient; More Than 2/3 Damage: If the insurance proceeds are insufficient to repair the Common Area improvement(s), and if such damage is more than sixty-six and two-thirds percent (66-2/3%) of the total replacement cost of all the Common Area improvement(s), not including land, such damage or destruction shall be promptly repaired and reconstructed by the Master Association, as attorney-in-fact, using the proceeds of a special assessment (which shall not require a vote of the Members) to be made against all of the Owners and their Lots; provided, however, that the Owners representing not less than sixty-seven percent (67%) of the votes in the Master Association and not less than sixty-seven percent (67%) of the First Lienholders of record may agree not to repair or reconstruct the Common Area improvement(s) by signing and recording in the real estate records of the County a “Declaration Not to Rebuild” within one hundred (100) days of the date of such damage. In such event, the insurance settlement proceeds shall be collected by the Master Association, such proceeds shall be divided by the Association equally, and such divided proceeds shall be paid into separate accounts, each such account representing one of the Lots. Each such account shall be in the name of the Master Association, and shall be further identified by Lot designation and the name of the Owner. From each separate account, the Master Association, as attorney-in-fact, shall use and disburse the total amount of each such account without contribution from one account to another as attorney-in-fact, for the same purpose and in the same order as is provided in subsection (c) of this Section 4.22.