Draft Protective Covenants

COMMON INTEREST COMMUNITY AMENDED DECLARATION OF THE ZAPATA SUBDIVISION, A PLANNED COMMUNITY THE ZAPATA HOMEOWNERS ASSOCIATION, INC., a Colorado non-profit corporation (“Declarant”), being made up of the landowners of the following-described real property located in the County of Alamosa, State of Colorado: A plat of The Zapata, being a replat of the Hampton, Unit 1, on December 15, 1975, under reception number 185643, and a plat of The Zapata, Unit 2, on July 29, 1976, under reception number 188563 and amended final plat filed June 9, 1977, under reception number 192727 including appurtenant easements, does hereby submit such real property and all improvements thereon to the provisions of the Colorado Common Interest Ownership Act, C.R.S., §§ 38-33.3-101 et seq., for the purpose of creating The Zapata Subdivision, a planned community, and making the improvements shown on the Plat, and does hereby DECLARE that such property and all improvements thereon shall be held and conveyed subject to the following terms, amended covenants, which supersede covenants filed by The Zapata Land Company covering The Hampton Unit 1 on August 8, 1975, in reception number 184006, The Zapata Unit 1 being intended as a replat of The Hampton Unit 1 covering the same property under reception number 184006 August 8, 1975, The Zapata Unit 2, recorded March 11, 1981, under reception number 211702, restrictions, and conditions: THIS DECLARATION, made this (Current Date), by the ZAPATA HOMEOWNERS ASSOCIATION, hereby called the Declarant. [1] No property other than that described above shall be deemed subject to this Declaration, unless and until specifically made subject hereto. The Declarant may, from time to time, subject additional real property to the conditions, restrictions, covenants, reservations, liens and charges herein set forth by appropriate reference hereto. FOR ERICH/SURVEYOR TO CHECK ARTICLE 1 DEFINITIONS 1.1 Act. The Act is the Colorado Common Interest Ownership Act, C.R.S., § 38-33.3-101 et seq., Colorado Revised Statutes, as it may be amended from time to time. 1.2 AC or Architectural Committee refers to the committee of the Association created pursuant to Article 8 of this Declaration. 1.3 Association. The Association is The Zapata Homeowners Association, Inc., a Colorado non-profit corporation. It is hereby designated as the Association of Lot Owners pursuant to C.R.S., § 38-33.3-301. The Association shall have the following powers: (a) to operate the Common Interest Community in accordance with the Act as applicable and this Declaration; (b) to promote the health, safety, welfare and common benefit of the owners and residents of the Common Interest Community; and the real property described in Clause I hereof is subject to the covenants, restrictions, conditions, reservations, liens and charges hereby declared to insure the best use and the most appropriate development and improvement of each building site thereof; to protect the owners of building sites against such improper use of the surrounding building sites as will depreciate the value of their property; to preserve so far as practicable the natural beauty of said property; to protect the environment; to guard against the erection thereon of poorly designed or proportioned structures built of improper materials; to obtain harmonious color schemes; to insure the highest and best development of said property; to encourage and secure the erection of attractive homes thereon, with appropriate locations thereof on building sites; to prevent haphazard and inharmonious improvements of building sites; to secure and maintain proper setbacks from streets, and adequate free spaces between structures; and in general to provide adequately for a high type and quality of improvement in said property, and thereby to enhance the values of investments made by purchasers of building sites therein. (c) to do any and all permitted acts and to have and exercise any and all powers, rights, and privileges that are granted to an Association of Lot Owners under the laws of the State of Colorado, this Declaration, the Bylaws, the Policies, the Guidelines, and any other governing documents of the Common Interest Community and the Association. 1.4 Building. The structures, as defined in the architectural guidelines. Building site shall mean any lot, or portion thereof, or any two or more contiguous lots, or a parcel of land recorded and in a single ownership and upon which a dwelling may be erected in conformance with the requirements of these Covenants. 1.5 Bylaws. The Bylaws are the Bylaws of the Association, as they may be amended from time to time. 1.6 Common Elements. The Common Elements are all the real estate of the Common Interest Community other than Lots, including, but not limited to, private streets, traffic control facilities, perimeter fences, drainage facilities, greenbelts, lakes, and appurtenant easements, all of which shall be owned by the Association. 1.7 Common Expenses. The Common Expenses are the expenses or financial liabilities for the operation of the Common Interest Community. Common Expense Assessments are the funds required to be paid by each Lot Owner in payment of such Owner's Common Expense liability. These expenses include: (a) expenses of administration, maintenance, construction, improvement, repair, or replacement of the Common Elements; (b) expenses of utilities not separately metered and billed directly to the Lot Owners; (c) expenses declared to be Common Expenses by the Documents or by the Act; (d) expenses agreed upon as Common Expenses by the Association; and (e) reasonable reserves established by the Association, whether held in trust or by the Association, for repair, replacement, or addition to the Common Elements or any other real or personal property acquired or held by the Association. In addition, the costs and expenses imposed on the Association, benefiting fewer than all the Lots, shall be a Common Expense but, except as otherwise stated herein, assessed exclusively against those Lots benefited. 1.8 Common Interest Community. The Common Interest Community is the real property described in the first paragraph of, and subject to, this Declaration. 1.9 Declarant. The Declarant is Zapata Homeowners Association, Inc., a Colorado corporation, or its successor, as defined in C.R.S., § 38-33.3-103(12). 1.10 Declaration. The Declaration is this document, including any amendments. 1.11 Development Rights. Development Rights are the rights reserved by the Declarant under Article 6 of this Declaration. 1.12 Director. A Director is a member of the Executive Board. 1.13 Documents. The Documents are this Declaration and the Plat recorded and filed pursuant to the provisions of the Act, the Articles of Incorporation of the Association, the Bylaws, Guidelines and the Rules, as they may be amended from time to time. Any exhibit, schedule, or certification accompanying a Document is a part of that Document. 1.14 Eligible Insurer. (applies to us?). An Eligible Insurer is an insurer or guarantor of a first Security Interest in a Lot. An Eligible Insurer must notify the Association in writing of its name and address and inform the Association that it has insured or guaranteed a first Security Interest in a Lot. It must provide the Association with the Lot number and address of the Lot on which it is the insurer or guarantor of a Security Interest. Such notice shall be deemed to include a request that the Eligible Insurer be given the notices and other rights described in Article 14. (I don’t think this applies to us. Erin) 1.15 Eligible Mortgagee (applies to us?). The Eligible Mortgagee is the holder of a first Security Interest in a Lot when the holder has notified the Association, in writing, of its name and address and that it holds a first Security Interest in a Lot. The notice must include the Lot number and address of the Lot on which it has a security interest. This notice shall be deemed to include a request that the Eligible Mortgagee be given the notices and other rights described in Article 14. (I don’t think this applies to us. Erin) 1.16 Executive Board. The Executive Board is the board of directors of the Association. 1.17 Improvements. Improvements are any construction, structure, equipment, fixture, or facilities existing, or to be constructed on the Property that is included in the Common Interest Community, including, but not limited to, residences, buildings, trees, and shrubbery planted by the Owner, the Declarant, or the Association, paving, utility wires, pipes, and light poles. 1.18 Lot. If used herein, the term “Lot” shall mean Unit and be synonymous with the term “Unit” as the same is used in the Act. (I disagree with this use of “Unit.” Erin) It is Declarant's intent that the Unit numbers assigned on the Plat correspond to the Lot numbers assigned on the Subdivision Plat (i.e., Lot 1, Block 1, as shown on the Subdivision Plat is the same as Unit 1, Block 1, on the Plat being recorded in conjunction with this Declaration). 1.19 Majority or Majority of Lot Owners. The Majority or Majority of Lot Owners means the Owners of more than 50 percent of the votes in the Association. 1.20 Manager. A Manager is a person, firm, or corporation employed or engaged to perform management services for the Common Interest Community and the Association. 1.21 Member. A Member is an individual, corporation, trust, partnership, limited liability company, association, joint venture, government, government subdivision or agency, or other legal or commercial entity authorized by law to hold title to real property in Colorado. Must be in good standing to vote. 1.22 Notice and Comment. (check against enforcement policy) Notice and Comment is the right of a Lot Owner to receive notice of an action proposed to be taken by, or on behalf of, the Association and the right to comment thereon. The procedures for Notice and Comment are set forth in Section 20.1 of this Declaration. 1.23 Notice and Hearing (check against enforcement policy). Notice and Hearing is the right of a Lot Owner to receive notice of an action proposed to be taken by, or on behalf of, the Association and the right to be heard thereon. The procedures for Notice and Hearing are set forth in Section 20.2 of this Declaration. 1.24 Party Walls. A Party Wall is the wall along the dividing line between two Units that lies within a Building. 1.25 1.26 Plat.(check) Plat means that certain document entitled “Common Interest Community Plat of The Zapata Subdivision, a Planned Community,” to be recorded in the Records, as distinguished from the Subdivision Plat, as hereafter defined. 1.27 Property. Property is the land and all Improvements, easements, rights, and appurtenances that have been submitted to the provisions of the Act by this Declaration, as described in the first paragraph hereof. 1.28 Records. The Records are the real estate records in the Office of the Clerk and Recorder of Alamosa County, Colorado. 1.29 Residence. A Residence shall be the building for single-family living, constructed on a Lot, (including garage thereon, and the appurtenant private drive.) 1.30 Responsible Lot Owner. 1.31 Rules. The Rules are the regulations for the use of Common Elements and for the conduct of persons within the Common Interest Community, as may be adopted by the Executive Board from time to time pursuant to this Declaration. 1.32 Security Interest. A Security Interest is an interest in, and encumbrance upon, real estate or personal property, created by contract or conveyance, that secures payment or performance of an obligation. The term includes a lien created by a mortgage, deed of trust, installment land contract, lease intended as security, assignment of lease or rents intended as security, pledge of an ownership interest in the Association, and any other consensual lien intended as security for an obligation. A nonconsensual lien does not create a Security Interest. 1.33 Special Declarant Rights. Special Declarant Rights are the rights reserved for the benefit of the Declarant under Article 6 of this Declaration. 1.34 Subdivision Plat.(check) The Subdivision Plat is that certain document entitled Final Plat of The Zapata Subdivision, recorded in the Records on ____________, _______, in Plat Book ____________ at Pages ____________.This plat defines the boundaries of The Zapata Subdivision, encompassing Unit 1 and Unit 2. 1.35 Trustee. The Trustee is the entity that may be designated by the Executive Board as the Trustee for the receipt, administration, and disbursement of funds derived from insured losses, condemnation awards, special assessments for uninsured losses, and other sources as defined in the Bylaws. If no Trustee has been designated, the Trustee will be the Executive Board acting by majority vote. ARTICLE 2 NAME AND TYPE OF COMMON INTEREST COMMUNITY AND ASSOCIATION 2.1 Name and Type of Common Interest Community. The name of the Common Interest Community is The Zapata Subdivision. The Zapata Subdivision is a planned community. 2.2 Association. The name of the Association is The Zapata Homeowners Association, Inc., a Colorado non-profit corporation. ARTICLE 3 DESCRIPTION OF LAND The entire Common Interest Community is situated in the County of Alamosa, State of Colorado, and is located on the Property. ARTICLE 4 UNIT AND BOUNDARY DESCRIPTIONS 4.1 Number of Units. The Common Interest Community initially contains Unit 1 and Unit 2, containing platted lots. Nothing contained in this Section shall prohibit the Owner of two or more adjacent lots from combining them or portions thereof. 4.2 Boundaries. The boundaries of each lot created by the Declaration are shown on Plats, and each lot is identified with its identifying number. 4.3 Description of a Lot. Every deed, lease, mortgage, will, or other instrument shall legally describe a lot by its identifying number together with a reference to the Plat and this Declaration, in the following form: Lot (number), Block (number) Zapata, Unit_(number), County of Alamosa, State of Colorado, including an undivided interest in The Common Property. The Zapata Subdivision, as shown and described on the Common Interest Community Plat, a Planned Community, filed on ____________, 20___, at Reception No. ____________, in accordance with and subject to the Common Interest Community Declaration of The Zapata Subdivision, a Planned Community, recorded ____________, 20___, at Reception No. ____________ of the records in the Office of the Clerk and Recorder of the County of Alamosa, State of Colorado. Every such description shall be good and sufficient for all purposes to sell, convey, transfer, encumber, or otherwise affect not only the Lot but also any easements appurtenant to such Lot. The reference to the Plat and Declaration in any instrument shall be deemed to include any and all supplements or amendments to the Plat and/or Declaration, without specific reference thereto. (Need to look at this again.) ARTICLE 5 MAINTENANCE OF THE PROPERTY 5.1 Individual Lots. It shall be the duty and obligation of each Lot Owner, at such Lot Owner's expense, to beautify and keep neat, attractive, sightly, and in good order such Owner's Lot and/or Residence and the exterior portions of the Residence, and to maintain, repair, and replace the same to the extent such duties are not the responsibility of the Association. The Lots and structures shall be maintained used and constructed so as not to be annoying or unsightly or a nuisance. No refuse or junk of any kind shall be kept on the Lots. If the Owner does not discharge this obligation, then, following Notice and Hearing, the Association may arrange to have the work done and assess the Owner for the cost of such work plus twenty-five percent (25%) of such cost for inspection, administrative costs, and overhead of the Association and other incidental expenses. 5.2 Duties of Association. The Association shall maintain, repair, replace, beautify and keep neat, attractive, sightly, free from snow and in good order, to the extent that such functions are not expected to be performed by Alamosa County or any other political subdivision thereof or of the State of Colorado, all of the Common Elements, including, but not limited to roads, culverts, greenbelts, lakes, gates, common property structures and the landscaped areas of the property outside of the lot boundaries. The Association may, from time to time, hire and/or contract with third parties to achieve the objectives of this Section 5.2. If such expense is attributable to a lot Owner, such expense will be assessed following Notice and Hearing. 5.3 Right of Access. Any person authorized by the Executive Board shall have the right of access to all portions of the Property outside the Residences, and/or structures constructed on a lot for the purpose of performing emergency repairs or to do other work reasonably necessary for the proper maintenance of the Common Interest Community as set forth herein, provided that requests for entry are made in advance and that any entry is at a time reasonably convenient to the affected lot Owner. In case of an emergency, no request or notice is required, and the right of entry shall be immediate whether or not the lot Owner is present at the time. 5.4 Repairs Resulting From Negligence. Each lot Owner will reimburse the Association for any damages to the Common Elements caused intentionally, negligently, or by such Owner's failure properly to maintain, repair, or make replacements to the lot and/or residence. If such expense is caused by misconduct, it will be assessed following Notice and Hearing. The Association will be responsible for damage to lots and/or residences that is caused by the Association intentionally, negligently, or by the Association's failure to maintain, repair, or make replacements to the Common Elements. ARTICLE 6 DEVELOPMENT RIGHTS AND OTHER SPECIAL DECLARANT RIGHTS 6.1 Reservation of Development Rights. The Declarant reserves the following Development Rights: (a) the right by amendment to this Declaration or the Plat to create Common Elements in the locations identified on the Plat; (b) the right to construct underground utility lines, pipes, wires, ducts, conduits, and other facilities on existing easements of the lots for the purpose of furnishing utility, drainage, and other services to Residences or any lot; (c) the right to withdraw and grant easements and licenses to public and quasi-public utility companies or districts and to convey Improvements within the Common Elements in the Common Interest Community for the purposes mentioned above; and (d) the right to allow combining two or more lots or divide one lot for the purpose of combining portions of said divided lot with adjoining lots, thereby in both cases reducing the total number of lots, and thereby changing the Allocated Interests of all of the lots. 6.2 Phasing of Development Rights. The Declarant makes no assurances as to whether the Declarant will exercise its Development Rights or the order in which such Development Rights will be exercised. The exercise of Development Rights as to some portions of the Property will not obligate the Declarant to exercise them as to other portions. 6.3 Special Declarant Rights. The Declarant reserves the following Special Declarant Rights, to the maximum extent permitted by law, which may be exercised, where applicable, anywhere within the Common Interest Community: (a) to complete any Improvements indicated on the Plats; (b) to exercise a Development Right reserved in the Declaration; (c) to maintain a management office, and common element structures; (d) to use existing easements through the Common Elements and lots, as platted, for the purpose of making Improvements within the Common Interest Community; and 6.4 The Declarant, may construct a management office on any lot owned by Declarant or on any portion of the Common Elements. ARTICLE 8 ARCHITECTURAL DEVELOPMENT 8.1 Approval of project. No building shall be erected, placed, or the exterior altered on any premise in said development until the Declarant has approved the development plans. Development plans must be in accordance with the Architectural Guidelines, and submitted through the Architectural Committee. 8.2. Completion of work. Upon commencement of construction of any building, the work on the structure shall be diligently pursued in a workmanlike manner. No construction shall commence until a building permit for said construction has been obtained from the local governing body having jurisdiction. All construction shall be completed within 24 months from the date of commencement of such construction. 8.3 Compensation of Members of AC. Neither the members of the AC nor its designated representative shall receive compensation for services performed, but may, with prior approval of the board, be reimbursed for actual and reasonable expenses incurred by them in the performance of their duties. 8.4 Non-Liability of AC Members. None of the AC, any member thereof, or the Executive Board shall be liable to any Owner or to any other person for any loss, damage, or injury arising out of, or in any way connected with, the performance of the AC's duties under this Declaration. By granting its approval of proposed improvements, the AC will not be deemed to have approved or to have made any representation as to the safety, structural soundness, or compliance with local building codes or other governmental laws or regulations concerning the proposed Improvements. ARTICLE 9 RESTRICTIONS ON USE, ALIENATION, AND OCCUPANCY 9.1 Improvements to lots. Subject to the Special Declarant Rights reserved under Article 6, the following restrictions on construction of Improvements apply to all lots: (a) Zoning. Zoning laws, ordinances, resolutions, rules, and regulations are considered to be a part hereof, and no provision of this Declaration shall be valid or be interpreted to violate any present or future zoning laws, ordinances, resolutions, rules, or regulations. Alamosa County and 51% of the lot owners must approve rezoning requests. In event of conflict between these Protective Covenants and Zoning Regulations of the County of Alamosa, 1975, as amended, and Alamosa County Subdivision Regulations adopted 1971 as amended to April 15, 1975, January 1, 1981, the more restrictive shall apply. (b) No structures shall be erected, altered, placed or permitted to remain on any building site other than one detached single-family dwelling, not to exceed two and one-half stories in height, a private garage for not more than three cars [in compliance with garage requirements 9.1(a)], and other outbuildings incidental to residential use of the premises. All structures shall be built on a continuously poured concrete foundation. Expansion joints may be used if the soil conditions require. (c) No building shall be located on any building site less than 30 feet from the front lot line for all sites covered by these covenants, nor less than 30 feet from any side street line. No building shall be located less than 10 feet from any side lot line or 20 feet from any building on the same site, except a detached garage or other outbuilding located in the rear yard may be placed 10 feet from the side line. No residence shall be located as to reduce the rear yard of the plot on which it is located less than 30 feet. No residential structure shall be erected or placed on any building site which a width of less than 20 feet at the front building setback line for interior lots, and less than 15 feet for corner lots. (d) Garage and Private Drive.[in compliance with 9.1). A garage is required and shall be of a size at least large enough to enclose passenger automobiles, but not larger than 900 sq. ft. An attached or detached unenclosed carport will be permitted. (e) No Temporary Structures or Building Materials. Except during construction, as set forth above, no shack, temporary structure, or temporary building or building materials shall be placed, stored, or maintained upon the lot. No non-conforming outbuildings, trailers, barns or other structures shall be maintained on any lot. (f) No basement, shack, garage, barn, or other building or structure of a temporary nature erected on a building site covered by these Covenants shall at any time be used for human habitation. Temporary use of a tent or RV is permitted as long as the tent or RV is hidden from view of the road as well as possible, sanitary conditions are kept, and the property owner is present. (g) Except for mobile homes as covered below, no residential building structure shall be permitted on any building site covered by these covenants, the habitable floor area of which, exclusive of basements, porches, and garages, is less than 950 square feet in the case of a one-story structure or less than 1200 square feet in the case of a one and one-half, two, or two and one-half story structure. (h) No mobile home shall be used for residential purposes except on the following property: (keep this?) Block 47, Lots 51 through 60 Block 48, Lots 1 through 67 Block 49, Lots 1 through 41 Block 50, Lots 4 through 25 On the above property, mobile homes shall be allowed only if the entire exterior surface of such mobile home is nonmetallic and the interior floor space of such mobile home is 720 square feet or larger. In addition all wheels shall be removed and the mobile home shall be skirted with material identical to the siding of the mobile home. Such skirting shall be installed when the mobile home is brought upon the property (i) No fence, wall, hedge, or mass planting shall be permitted to extend beyond the minimum building setback line except decorative wood fencing less than 3 feet in height (j) Wells and Mineral Excavation.(edit wording in this paragraph) No portion of the Property, including, without limitation, any area within a lot, shall be used to explore for or to remove any, soil, hydrocarbons, or other minerals of any kind. or Oil drilling, oil development operations, refining, mining operations of any kind, or quarrying shall not be permitted upon or in any of the building sites in subdivision described herein, nor shall oil wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any of the building sites covered by these covenants. (k) Each lot owner shall be responsible for drilling his own well for in-house use. Each lot has been approved for such a well. Notwithstanding anything herein to the contrary, the conduct of water exploration tests, or core drilling, or the drillings, maintenance and operation of water wells by the Declarant, or any political subdivision thereof shall not be deemed a violation of these conditions. (l) No water shall be used for lawns and irrigation. (take out? This is a Division of Water Resources issue) (m) Each lot owner is responsible for providing gas, electric, and other utilities to his lot. (n) Each lot owner shall be solely responsible for the installation, maintenance and approval of the on-site sewage disposal system intended for use on his premises. Because the soil for normal septic tank filter field type systems is unsuitable in areas of this property, the lot owner shall consult directly with the Colorado State Health Department or its local representative for soil percolation tests and proof of suitability for the intended systems. In areas unsuitable for direct percolation treatment, other sewerage disposal means such as the evapotranspirative process may be used, provided the aforementioned approval of such system is secured prior to installation. In Unit 1, the following are restricted from septic tank filter filed type systems: (is this still applicable?) Block 1, Lots 1,4,5,9, 10, ll,& 16 Block 2, Lots 1,3, 4, 7, 8, 11, 12, 14 through 30 Block 3, Lots 1,7 through 12, 21 through 26, and 40 Block 6, Lots 1,16 through 23, and 25 through 28 Block 10, Lot 1 Block 14, Lots 1 &2 Block 15, Lots 1 through 14, and 16 Block 16, Lot 1 Block 18, Lots 7 through 11 Block 19, Lots 1 through 13 (o) Maintaining of Drainage. There shall be no interference with the established drainage pattern as planned by Declarant for the entire Subdivision. Lot entrances shall not block drainage. Culverts are required where drainage is impacted. 9.2 Use Restrictions. Subject to the Special Declarant Rights reserved under Article 6, the following use restrictions apply to all lots and to the Common Elements: (a) Single-Family Residence. (single family or long term room rentals allowed? See 9.3) Each lot is restricted to use as a single family Residence location and accessory uses as permitted herein. A single-family Residence is defined as a single housekeeping unit. Nothing contained in this Section, however, shall be construed as preventing the renting or leasing of a Unit in its entirety to a single family, in which event a copy of the written lease shall be delivered to the Association.[ see 9.3(b) leases] A. All building sites in the tract shall be known and described as residential building sites, except multiple, commercial, recreational and common areas. (b) No Commercial Pursuits. Except for those activities conducted as a part of the marketing of a residence, all commercial pursuits operated from a residence will be evaluated by the board and may be authorized on a case- by-case basis. Evaluation criteria will parallel Alamosa County restrictions and include visual, audible, and physical impacts to the subdivision. Commercial lots, defined in original plats, and zoned commercial, may be improved in accordance with commercial architectural guidelines established by the AC. No commercial development will have negative impact on the Subdivision environment. (c) Compliance with Laws. No improper or unlawful use, which may constitute a violation of federal, state, or county laws, regulations, codes, ordinances or restrictions, or disturb the peace and comfort of other occupiers, may be made of the property. The violating lot Owner shall hold harmless the Association and other lot Owners from all fines, penalties, costs, and prosecutions for any violation or noncompliance. (d) Offensive Activities. No noxious, offensive, or immoral, activity shall be carried on upon any portion of the Subdivision nor shall anything be done, either willfully or negligently, or placed thereon, that is or may become a nuisance or cause an unreasonable embarrassment, disturbance, or annoyance to other lot Owners, residence occupants, or to the neighborhood. (e) No Hazardous Activities. There shall be no activity or improvement on any portion of the subdivision that is or might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms shall be discharged upon the subdivision, and fires shall be governed by existing policies. (f) Compliance with Insurance Requirements. Nothing shall be done or kept on the Property that could result in a material increase in the rates of insurance or would result in the cancellation of insurance maintained by the Association without the prior approval of the Association. (g) Annoying Sounds or Odors. No sound or odor, including those caused by house pets and animals, shall be emitted from any portion of the Property that is noxious or offensive to, or would interfere with the rights, comforts, or convenience of other lot owners or occupants. Without limiting the generality of the foregoing, no exterior speakers, horns, whistles, bells, or other sound devices, other than security devices used exclusively for security purposes, shall be located or used on any lot except with the prior written approval of the AC. (h) Storage of Vehicles. Other than short-term guests or agents of lot Owner whose vehicles may be parked for no more than 72 hours, and subject to the public-policy-based permissions contained in C.R.S., § 38-33.3-106.5, no more than one vehicle shall be regularly kept on the lot in view from the roadway. Garage doors shall remain closed when not in use. No boat, camper (on or off supporting vehicles), trailer, tractor, truck, towed trailer unit, motorcycle, disabled, junked, or abandoned vehicle, motor home, mobile home, recreational vehicle, or any other vehicle, the primary purpose of which is for recreational, sporting, or commercial use, shall be parked or stored in, on, or about any street within the subdivision. Declarant shall have the right to remove and store, at the Owner's expense, vehicles in violation of this Section. The Owner shall be entitled to Notice and Hearing prior to such action. (i) Vehicle Repairs. No maintenance, service, repair, dismantling, or repainting of any type of vehicle, boat, machine, or device may be carried on for more than 48 hours except within a completely enclosed structure that screens the sight and sound of the activity from the street and from other lots. (j) Pets. No animals of any kind other than house pets shall be kept or maintained on any part of said property, except that no more than two (2) horses may be kept or maintained on parcels five (5) acres or larger. Members of the subdivision shall abide by Alamosa County pet ordinances. (k) Access to Common Elements. No Owner shall engage in any activity that would temporarily or permanently deny free access to any part of the Common Elements by all Owners. No use shall ever be made of the Common Elements that would deny ingress or egress by any Owner to such Owner's lot. (l) Prohibition Against Discrimination. Anything to the contrary herein notwithstanding, these covenants shall be construed as omitting restrictions, if any, based on race, color, national origin, creed, sex, marital status, ancestry, familial status, or disability. (m) Restrictions on Garbage and Trash. No refuse, garbage, trash, lumber, grass, shrub or tree clippings, plant waste, compost, metal, bulk materials, scrap, refuse, or debris of any kind shall be kept, stored, or allowed to accumulate on any lot except within an enclosed structure or area appropriately screened from view, except that any container containing such materials may be placed outside at such times as may be necessary to permit garbage or trash pick-up for removal. This does not include firewood storage. No open burning is permitted. (n) No Unsightliness. All unsightly structures, facilities, equipment, objects, and conditions shall be enclosed within a structure, including snow removal equipment and garden or maintenance equipment except when in actual use. Clotheslines are permitted on the rear of the property out of site from the roadway. (o) Further Subdivision/Consolidation of Units. The Owner of a lot shall not further subdivide that lot; provided, however, that nothing in this subsection shall prohibit the Declarant from subdividing a lot for the sole purpose of annexing all subdivided portions of such lot to other adjacent Units as allowed by Alamosa County. No lots shall be consolidated without the prior written consent of the Declarant. (p) Restoration in the Event of Damage or Destruction. In the event of damage or destruction of any Improvement on a lot, the Owner thereof shall cause the damaged or destroyed Improvement to be restored or replaced to its original condition or such other condition as may be approved in writing by the AC, or the Owner shall cause the damaged or destroyed Improvement to be demolished and the Lot to be suitably landscaped, subject to the approval of the AC, so as to present a pleasing and attractive appearance. (q) Restrictions on Signs and Advertising. Subject to the public-policy-based permissions contained in C.R.S., § 38-33.3-106.5, no sign, poster, billboard, advertising device, or display of any kind shall be erected or maintained anywhere within the Property so as to be evident to public view without the approval of the Declarent except for a name plate, standard commercial realtor “for sale” sign, or sign not exceeding 1158 square inches in area within the lot boundary. (r) Electronic Equipment: No owner or operator of electronic equipment may erect a receiving and sending mast and antenna, other than a two-foot diameter dish, without prior written approval of the AC and the local governing body. No equipment generating electromagnetic energy, which may interfere with communication reception, shall be permitted unless equipped with an adequate suppresser. 9.3 Restrictions on Alienation. The following restrictions on alienation apply to all Units and to the Common Elements: (a) No Time–Sharing Plan. A lot or residence may not be conveyed pursuant to a time-sharing plan. (b) Leases. A Residence or portion thereof may not be leased or rented for a term of less than 60 days. [see 9.2(a)]All leases and rental agreements shall be in writing and subject to the requirements of the Documents and the Association. All leases of a residence shall include a provision that the tenant will recognize and attorn to the Association as landlord solely for the purpose of having the power to enforce a violation of the provisions of the Documents against the tenant; provided the Association gives the Owner of such leased residence notice of the Association's intent to so enforce and a reasonable opportunity to cure the violation directly prior to the commencement of an enforcement action. (c) Summary Process. The Association will have the right and power to exercise the landlord's rights of summary process against any tenant of a residence or lot Owner who violates the Rules; provided the landlord has received Notice and Hearing and is given a reasonable opportunity to cure the violation following the hearing. ARTICLE 10 EASEMENTS AND LICENSES 10.1 Existing Easements. All easements or licenses to which the Common Interest Community are subject are shown on the Plat. 10.2 Owner's Easement Across Common Elements. Every Owner shall have an unrestricted right and easement for ingress to, and egress from, the Common Elements, which easement shall be appurtenant to and shall pass with the title to every lot, subject to the right of the Declarant and/or the Association. 10.3 Easements Reserved and Restrictions on Drainage Easements. Easements and rights-of-way are reserved on, over, and under the Common Elements and the lots as shown on the original plats, for construction, maintenance, repair, replacement, and reconstruction of poles, wires, pipes and conduits for lighting, heating, air conditioning, electricity, gas, telephone, drainage and any other public or quasi-public utility service purposes, for sewer and pipes of various kinds, and for any other necessary maintenance or repair. [An easement is hereby reserved over the side five feet of each building site for utility installation and maintenance, and the front 10 feet of each building site where it shares a common boundary with a street right-of-way. Check for accuracy against 9.1] 10.4 Easement for Emergency Access. There is hereby created a right of access across all portions of the subdivision for the passage of emergency vehicles and police, fire, and other emergency service workers. ARTICLE 11 AMENDMENTS TO DECLARATION 11.1 In General. These covenants shall affect and run with the land and shall exist and be binding upon all parties and persons claiming under them in perpetuity. This Declaration and the Plat may be amended only by vote or agreement of at least 67% percent of the lot Owners. The procedure for amendment must follow the procedures of C.R.S., § 38-33.3-217. 11.2 Limitation of Challenges. An action to challenge the validity of an amendment adopted by the Association pursuant to this Article may not be brought more than one year after the amendment is recorded. 11.3 Recordation of Amendments. Each amendment to the Declaration must be recorded in the Records, and the amendment is effective only upon recording. (I question the use of the word “recordation.” Why not just “recording”? Erin) 11.4 Unanimous Consent. Except to the extent expressly permitted or required by other provisions of the Act or this Declaration, an amendment may not create or increase Special Declarant Rights, increase the number of lots, change the boundaries of a subdivision or units, the allocated interests of a lots, or the uses to which a lot is restricted except by unanimous consent of the lot Owners. 11.5 Execution of Amendments. An amendment to the Declaration required by the Act to be recorded by the Association, which has been adopted in accordance with this Declaration and the Act, must be prepared, executed, recorded, and certified on behalf of the Association by an officer of the Association designated for that purpose or, in the absence of designation, by the president of the Association. 11.6 Special Declarant Rights. Provisions in this Declaration creating Special Declarant Rights may not be amended without the consent of the Declarant. 11.7 Consent of Holders of Security Interests. Amendments to the Declaration are subject to the consent requirements of Article 14. ARTICLE 13 TERMINATION Termination of the Common Interest Community may be accomplished only in accordance with C.R.S., § 38-33.3-218. ARTICLE 15 ASSESSMENT AND COLLECTION OF COMMON EXPENSES Each member of the ZHA shall pay assessments and dues necessary for the continued operation, repair, and maintenance of roads and common areas, for administrative purposes, and for the furtherance of the best interests of the community as a whole. 15.1 Apportionment of Common Expenses. Assessments are set by Bylaw and Policy. 15.2 Common Expenses Attributable to Fewer than all Lots. (a) Any Common Expense for services approved by the Executive Board and provided by the Association to an individual lot, or some lots, but fewer than all the lots, at the request of the particular lot Owner or Owners shall be assessed against the requesting lot(s). (b) An assessment to pay a judgment against the Association may be made only against the lots in the Common Interest Community at the time the judgment was entered in proportion to their Common Expense liabilities. (c) If a Common Expense is incurred by the action or inaction of a lot Owner, the Association may assess that expense exclusively against that lot Owner. (d) Fees, charges, taxes, impositions, late charges, fines, collection costs, and interest charged against a lot Owner pursuant to the Documents and the Act are enforceable as Common Expense Assessments. 15.3 Lien. (a) The Association is hereby granted, and shall have, a lien on a lot, and as a personal obligation, for a Common Expense Assessment levied against the lot or fines imposed against its lot Owner. (b) The method of imposing liens is described by policy. 15.4 Ratification of Nonbudgeted Common Expense Assessments. If the Executive Board votes to levy Common Expense Assessments not included in the current budget in an amount greater than 15 percent of the current annual operating budget, other than a Common Expense Assessment enumerated in Section 15.2 of this Declaration, or a Common Expense Assessment for the working capital fund described in Section 15.12 below, or a Common Expense Assessment for the Reserve Fund described in Section 15.13 below, the Executive Board shall submit this Common Expense to the lot Owners for ratification in the same manner as a budget 15.5 15.5 Annual Payment of Common Expenses. All Common Expenses assessed under Sections 15.1 and 15.2 of this Declaration shall be due and payable annually before April 30th, unless otherwise determined by the Executive Board. 15.6 No Waiver of Liability for Common Expenses. No lot Owner may become exempt from liability for payment of the Common Expense Assessments by waiver of the use or enjoyment of the Common Elements or by abandonment of the lot against which the Common Expense Assessments are made. 15.7 Personal Liability of Lot Owners. The Owner of a lot, at the time a Common Expense Assessment or portion of the assessment is due and payable, is personally liable for the Common Expense Assessment. Personal liability for the Common Expense Assessment shall not pass to a successor in title to the lot unless the successor agrees to assume the obligation. 15.8 Reserve for Working Capital Fund. The Association shall maintain a reserve fund to meet unforeseen expenditures and/or to purchase any additional equipment or services (the “Working Capital Fund”). This amount is set by policy. 15.9 Reserve Fund for Replacement of Improvements. The Association shall establish and maintain an adequate reserve fund for the replacement of improvements to the Common Elements (the “Reserve Fund”). This Reserve Fund shall be a line item in the periodic budget and shall be collected from and as part of the regular Common Expense Assessments. ARTICLE 17 PERSONS AND UNITS SUBJECT TO DOCUMENTS 17.1 Compliance with Documents. All lot Owners, tenants, occupants of residences, and, to the extent they own lots, mortgagees, and the Declarant shall comply with the Documents and shall be subject to all rights and duties under the Documents. The acceptance of a deed or the exercise of any incident of ownership or the entering into of a lease or the occupancy of a residence constitutes agreement that the provisions of the Documents are accepted and ratified by that lot Owner, tenant, mortgagee, or occupant. All provisions recorded in the Records are covenants running with the land and shall bind any persons having at any time any interest or estate in any lot. Enforcement of these conditions shall be by proceedings at law and/or in equity to restrain violation and/or damages from any persons violating or attempting to violate any covenants herein contained. Such provisions, restrictions or covenants also shall be binding and effective against any lessee or sub lessee of said property whose interest thereto is acquired by assignment, inheritance or otherwise. Every person acquiring legal or equitable title to any lot covered by these covenants shall automatically become a member of the ZHA and with such ownership every such person becomes subject to the requirements and limitations imposed in these covenants and to the regulations and assessments of the ZHA, with the exception, however, of such person or persons who hold an interest in any property merely as a security for the performance to pay money, e.g., mortgages, deeds of trust, or real estate contract purchases. However, if such a person should realize upon his security and become the real owners of the lot within the development, he will be then subject to all the requirements and limitations imposed in these covenants on owners’ lots within the property and on members of the ZHA. 17.2 Adoption of Rules. The Executive Board may adopt Rules regarding the use of the Common Elements and the activities of members, subject to notice and comment. 17.3 Enforcement. In addition to, but not intended to contradict, the provisions of C.R.S., § 38-33.3-123, the Association, as well as any aggrieved lot Owner, is hereby granted a right of action against any lot Owner who fails to comply with the provisions of the Documents or to comply with decisions, policy and bylaws, made by the Association. Each and every lot Owner is also granted a similar right of action against the Association. In any action maintained under this Section, the prevailing party shall be awarded its reasonable attorneys' fees and costs. See policy # 26 “Enforcement of Governing Documents”. Provided further, that if any paragraph, sentence or other portion of said Conditions herein contained shall be or become illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portion shall remain in full force and effect. ARTICLE 18 INSURANCE 18.1 Coverage. The Association shall obtain and maintain insurance coverage as set forth in this Article. 18.2 Property Insurance Coverage. Property insurance will cover: (a) the facilities, consisting of all Common Elements and structures, (b) all personal property owned by the Association. 18.3 Liability Insurance. Liability insurance, including medical payments insurance, will be maintained in an amount determined by the Executive Board, but in no event shall it be less than $1,000,000. This insurance shall cover all occurrences commonly insured against for death, bodily injury, and property damage arising out of, or in connection with, the use, ownership, or maintenance of the Common Elements and the activities of the Association. 18.4 Workers' Compensation Insurance. The Executive Board shall obtain and maintain Workers' Compensation Insurance to meet the requirements of the laws of the State of Colorado. 18.5 Directors' and Officers' Liability Insurance. The Executive Board shall obtain and maintain directors' and officers' liability insurance covering all of the Directors and officers of the Association. This insurance will have limits determined by the Executive Board. ARTICLE 19 DAMAGE TO OR DESTRUCTION OF PROPERTY 19.1 Duty to Restore. A portion of the Common Interest Community for which insurance is required under C.R.S., § 38-33.3-313, or for which insurance carried by the Association is in effect, whichever is more extensive, that is damaged or destroyed, must be repaired or replaced promptly by the Association unless: (a) the Common Interest Community is terminated; (b) repair or replacement would be illegal under a state statute or municipal ordinance governing health or safety; or (c) 67 percent of the lot Owners, including each Owner of a residence that will not be rebuilt, vote not to rebuild. 19.2 Cost. The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. 19.3 Plans and Specifications. The Property must be repaired and restored in accordance with either the Plat or other plans and specifications that have been approved by the Executive Board, a majority of lot Owners, and 51 percent of Eligible Mortgagees. 19.4 Insurance Proceeds. The Executive Board of the Association, shall hold any insurance proceeds in trust for the Association, lot Owners, and lien holders as their interests may appear. Subject to the provisions of Subsection 19.1(a) through Subsection 19.1(c) of this Declaration, the proceeds shall be disbursed first for the repair or restoration of the damaged Property. The Association, lot Owners, and lien holders are not entitled to receive payment of any portion of the proceeds unless there is a surplus after the Property has been completely repaired or restored or unless the Common Interest Community is terminated. 19.5 Replacement of Less Than Entire Property. (a) The insurance proceeds attributable to the damaged Common Elements shall be used to restore the damaged area to a condition compatible with the remainder of the Common Interest Community. (b) Except to the extent that other persons will be distributees: 1. the insurance proceeds attributable to a lot/residence that is not rebuilt must be distributed to the Owner of the lot or to lien holders as their interests may appear; and 2. the remainder of the proceeds must be distributed to each lot Owner or lien holder, as their interests may appear, in proportion to the Common Expense Assessment percentages of all the lots. (c) If the lot Owners vote not to rebuild a lot/residence, the Allocated Interests of the lot are reallocated upon the vote as if the lot/residence had been condemned under C.R.S., § 38-33.3-107(1), and the Association promptly shall prepare, execute, and record an amendment to the Declaration reflecting the reallocations. 19.6 Certificates By Executive Board. The Trustee, if any, may rely on the following certifications in writing made by the Executive Board: (a) whether or not damaged or destroyed Property is to be repaired or restored; and (b) the amount or amounts to be paid for repairs or restoration and the names and addresses of the parties to whom such amounts are to be paid. 19.7 Certificates by Attorneys or Title Insurance Companies. If payments are to be made to lot Owners or mortgagees, then the Executive Board, and the Trustee, if any, shall obtain and may rely on a title insurance company's or attorney's title certificate or a title insurance policy based on a search of the Records from the date of the recording of the original Declaration, stating the names of the lot Owners and the mortgagees. 19.8 Association as Attorney-in-Fact—Damage and Destruction. All of the lot Owners irrevocably constitute and appoint the Association as their attorney-in-fact, for them and in their names, respectively, to deal with the Common Interest Community upon its destruction, repair, or obsolescence as herein provided. As attorney-in-fact, the Association, by its president and secretary, acting pursuant to authorization from the Executive Board, shall have full and complete authority, right, and power to receive the proceeds of any insurance in the names of the lot Owners or the Association, and to make, execute, and deliver any contract, deed, or any other instrument with respect to the interest of a lot Owner that is necessary and appropriate to exercise the powers herein granted. ARTICLE 20 NOTICE AND COMMENT; NOTICE AND HEARING 20.1 Right to Notice and Comment. Before the Executive Board amends the Bylaws, Rules/Policies, whenever the Documents require that an action be taken after “Notice and Comment,” and at any other time the Executive Board determines, the lot Owners have the right to receive notice of the proposed action and the right to comment orally or in writing. Notice of the proposed action either shall be given to each lot Owner in writing, delivered personally or by mail to all lot Owners at such address as appears in the records of the Association, or it shall be published, on the website, in a newsletter or similar publication that is routinely circulated to all lot Owners. The notice shall be given not less than five days before the proposed action is to be taken. It shall invite comment to the Executive Board orally or in writing before the scheduled time of the meeting. The right to Notice and Comment does not entitle a lot Owner to be heard at a formally constituted meeting. 20.2 Right to Notice and Hearing. Whenever the Documents require that an action be taken after “Notice and Hearing,” the following procedure shall be observed. The party proposing to take the action (e.g., the Executive Board, a committee, an officer, the Manager, etc.) shall give written notice of the proposed action to all lot Owners or occupants of residences whose interest would be significantly affected by the proposed action. The notice shall include a general statement of the proposed action and the date, time, and place of the hearing. At the hearing, the affected person shall have the right, personally or by a representative, to give testimony orally, in writing, or both (as specified in the notice), subject to reasonable rules of procedure established by the party conducting the meeting to assure a prompt and orderly resolution of the issues. Any evidence shall be duly considered but is not binding in making the decision. ARTICLE 21 EXECUTIVE BOARD The association shall be run by an Executive Board. The authorities, duties, and responsibilities of the Board are delineated in the Bylaws. ARTICLE 22 OPEN MEETINGS Addressed in bylaws ARTICLE 23 CONDEMNATION If part or all of the Common Interest Community is taken by any power having the authority of eminent domain, all compensation and damages for, and on account of the taking, shall be payable in accordance with C.R.S., § 38-33.3-107. ARTICLE 24 MISCELLANEOUS PROVISIONS 24.1 Captions. The captions contained in the Documents are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of the Documents or the intent of any provision thereof. 24.2 Gender. The use of the masculine gender refers to the feminine gender, and vice versa, and the use of the singular includes the plural, and vice versa, whenever the context of the Documents so require. 24.3 Waiver. No provision contained in the Documents is abrogated or waived by reason of any failure to enforce the same irrespective of the number of violations or breaches that may occur. 24.4 Invalidity. The invalidity of any provision of the Documents does not impair or affect in any manner the validity, enforceability, or effect of the remainder, and if a provision is invalid, all of the other provisions of the Documents shall continue in full force and effect. 24.5 Conflict. The Documents are intended to comply with the requirements of the Act. If there is any conflict between the Documents and the provisions of the statutes, the provisions of the statutes shall control. In the event of any conflict between this Declaration and any other Document, this Declaration shall control. IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed this ____________ day of ____________, 20___. ZAPATA HOMEOWNERS ASSOCIATION INC. a Colorado Non-Profit corporation By: _____________________________________________ President ATTEST: ___________________ Secretary STATE OF COLORADO ) ) ss. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this ____________ day of ____________, 20___, by ____________ as President of The Zapata Homeowners Association, Inc., a Colorado non profit corporation. Witness my hand and official seal. My commission expires: ____________. ___________________ Notary Public IN WITNESS WHEREOF, the Declarant has caused their corporate names and seals to be affixed hereto by its Presidents and Secretaries, hereunto authorized this Current date Zapata Homeowners Association BY PRESIDENT BY SECRETARY ACKNOWLEDGMENT FOR CORPORATIONS State of Colorado County of Alamosa The foregoing instrument was acknowledged before me this … Notary Public [1 ] This copy of the Covenants is provided as a service to the property owner. For legal interpretation obtain a true copy on file with the Alamosa County Clerk & Recorder in Book 239 Pages 296-302. [2] The Hampton was renamed "Zapata - Unit 1" in December of 1975. [3] Ask for copy of ZHA Board Policy if you own lots in this list. IN WITNESS WHEREOF, these Protective Covenants are made this 10th day of March, 1981. signed John W. Howell STATE OF COLORADO) ) ss. COUNTY OF ALAMOSA) The foregoing instrument was acknowledged before me this 10th day of March, by John W. Howell. WITNESS my Hand and official seal. signed Paul E Motz Notary Public My Commission expires June 19, 1983. FOR ERICH END OF DOCUMENT