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HomeMy WebLinkAbout2.0 Covenants, Conditions & RestrictionsMASTER DECLARATION OF COVENANTSk CONDITIONS AND RESTRICTIONS FOR DAKOTA SUBDIVISION EAGLE DAKOTA SUBDIVISION THIS MASTER DECLARATION OF .COVENANTS, CONDITIONS AND RESTRICTIONS DAKOTA S�J�DIVISION AND EAGLE DAKOTA SUBDIVISION is made this 2 day of 1(/ , 1994, by DAKOTA PARTNERS LLC, a Colorado Limited Liability Company ("Declarant"). ARTICLE 1 DECLARATION - PURPOSES AND EFFECT 1.1 General Purposes. Declarant is the owner of real property in Garfield and Eagle Counties, Colorado described on Exhibit A attached hereto (hereinafter defined as and referred to as the "Property"). Declarant desires to submit the Property to this Declaration in order to provide for the use, operation, administration and Maintenance of certain facilities or functions common to the use or benefit of the Property. This Declaration establishes certain rights and obligations with respect to the Property for the Declarant and all present and future owners of the Property. Declarant intends that such owners, mortgagees and any other person or entity now or hereafter acquiring any interest in the Property shall hold their m interests subject to the rights, privileges, obligations, and 11'' restrictions established by this Declaration. All such rights, .p; , privileges, obligations and restrictions are declared to be in o • ° attractiveness desirability and attrac Pas a p eness of the roper y l`71r;ea o H1' community. Y- o a) o o s °1 1.2 Declar4tioxi. Declarant hereby 'submits the Property to d o 4 this Declaration and declares that the Property shall at all times o tibe owned, used or occupied subject to the provisions of this o o Declaration, and the provisions of the Plat which are incorporated agi oherein by reference, which provisions shall constitute covenants e ¢,d running with the land and shall be binding upon and inure to the o +1°i benefit of Declarant and any person or legal entity acquiring any .° z 4 interest in the Property. m. -i +2 .,-, H ARTICLE 2 H it g DEFINITIoNS � ( v The terms listed below, as used in this Declaration, shall o have the meanings set forth as follows: i 0006 .R.114 3 ) 567592 B-671 P-574 07/19/95 03:28P PG 1 OF 31 Sara J. Fisher Eagle County Clerk & Recorder REC DOC 156.00 2.1 "Articles" means the Articles of Incorporation of the Dakota Homeowners' Association, Inc. , as amended from time to time. 2.2 "Architectural Committee" means the Committee established pursuant to this Declaration, as more particularly defined hereafter. 2.3 "Association" means Dakota Homeowners' Association, Inc., a Colorado non-profit corporation, and its successors and assigns, agents and employees through which all Owners act as a group under the Articles, the Bylaws and this Declaration. 2.4 "Common Areas" means: (a) any real or personal property, .including without limitation the roads, private roads, owned, leased or maintained by the Association for the use, enjoyment and benefit of the all of the Owners, except the Lots and Townhouses as hereinafter defined and described; (b) any and all real property identified as Open Space on the Plat of Dakota Subdivision and Eagle Dakota Subdivision, or any subsequent amendment thereof, including but not limited to, Tract S, Dakota Subdivision as shown on the Plat of Dakota Subdivision and Eagle Dakota Subdivision; (c) any and all real property on Tract A, Dakota Subdivision, as shown on the Plat of Dakota Subdivision and Eagle Dakota Subdivision, or any amendment thereto, whether or not designated as Open Space on the Plat, or any amendment thereto, which is not specifically being utilized for the townhouses or for the common elements exclusively for the use of the townhouses, such as parking areas for the townhouses. 2.5 "Common Facilities" means any and all facilities or systems owned by the Association including, but not limited to, raw water irrigation systems, and other utas';' mechanisms. 2.6 "Board" or "Executive Board" means the governing board of the Association. 2.7 "Bylaws" means the Bylaws of the Association adopted and amended by the Board from time to time. 2.8 "Common Expenses" means the estimated and actual expenditures made or liabilities incurred by or on behalf of the Association, together with any allocations to reserves. 2.9 "Declarant" means Dakota Partners LLC, a Colorado Limited Liability Company, and its successors and assigns specifically designated as such by an instrument executed by Declarant and recorded in the office of the Clerk and Recorder of Eagle and Garfield Counties, Colorado. 0006.RJM 567592 B-671 P-574 07/19/95 03:28P PG 2 OF 31 2 2.10 "Declaration" means this Master Declaration of Covenants, Conditions and Restrictions for Dakota Subdivision and Eagle Dakota Subdivision, as amended from time to time. 2.11 "District" shall mean the Mid Valley Metropolitan District, a political subdivision of the State of Colorado whose address is 0031 Duroux Lane, Suite A, Basalt, Colorado 81621, and whose telephone number is 303/927-4077. 2.12 "Lot" means each single family residential Lot numbered from 1 through 9, inclusive, Block 1, Eagle Dakota Subdivision, as shown on the Plat of Dakota Subdivision and Eagle Dakota Subdivision, and also those numbered from 1 through 14, Block 2, Dakota Subdivision, as shown on the Plat of Dakota Subdivision and Eagle Dakota Subdivision_ 2.13 "Townhouse" means each unit in the multifamily development to be built by the Declarant, its successors or assigns, on Tract A, Dakota Subdivision, as shown on the Plat of Dakota Subdivision and Eagle Dakota Subdivision. 2.14 "Maintenance" means such operation, management, maintenance, repair, renovation, restoration, or replacement of any real property as may be necessary to maintain such real property in substantially the same condition as originally or subsequently constructed, altered or improved including the removal of snow as necessary for customary use and enjoyment. 2.15 "Mortgage" means any mortgage, deed of trust or other security instrument creating a real property security interest in the Common Areas, or any part thereof, or in any Lot or Townhouse, excluding any statutory, tax or judicial liens. "Mortgagee" shall include any grantee, beneficiary or assignee of a Mortgage, and "Mortgagor" shall include any grantor, trustor or a Mortgage. First Mortgagee means a Mortgagee having priority as a Mortgage against the property thereby but only if the Mortgagee of such Mortgage claims in a written notice delivered to the Association. 2.16 "Owner" means the person or legal entity holding fee simple title to a Lot or Townhouse. 2.17 "Plat" means the Plat of Dakota Subdivision and Eagle Dakota Subdivision recorded in the office of the Clerk and Recorder of Garfield and Eagle Counties, Colorado, or as the same may be hereafter amended. 2.18 "Property" means the real property described in Exhibit A attached hereto. 2.19 "Private Roads" means Dakota Court, Dakota Lane and Dakota Drive, as shown on the Plat. 2.20 "Subdivision Improvements Agreement" shall mean the agreement between the Declarant and the Counties of Garfield or 0006.RJM - 3 - 567592 B-671 P-574 07/19/95 03:28P PG 3 OF 31 Eagle, as the case may be, pertaining to the development of Dakota Subdivision_ ARTICLE 3 PROVISIONS APPLICABLE TQ THE PROPERTY 3.1 Use. The use of the Property shall comply with the provisions of this Declaration and of any and all rules and regulations adopted by the Association for the use of the Property. 3.2 firearms. The discharge or shooting of firearms is prohibited, except as may be permitted by rules and regulations promulgated by the Association. 3.3 No Mining, Drilling or Quarrying. No mining, quarrying, tunneling, excavating or drilling for any substances within the earth, including oil, gas, minerals, sand and gravel, shall be permitted. 3.4 Noxious or offensive Activity. No noxious or offensive activity or sound shall be carried on upon any portion of the Property at any time nor shall anything be done or permitted which may become a nuisance to, or unreasonably disturbed, the Owners, or be injurious to the reputation of the Property. 3.5 Reservation of Rights to Declarant. In order that the Declarant's work may be completed and the Property may be established as a fully developed community, Declarant reserves the following rights with respect to the Property (including the Common Areas, Common Facilities, the Lots and the property upon which the Townhouses are to be built), which rights shall be reserved to and remain vested in Declarant for fifty (50) years from the recording date of this Declaration, without restriction as to the order thereof, notwithstanding the conveyance of the Common Areas or Common Facilities by Declarant to the Association or the conveyance of the Lots by Declarant to any other persons or entities: (a) The right of Declarant, and its agents, employees and contractors, to enter upon the Property and to do whatever Declarant deems necessary or advisable in connection with the performance of the work to be performed by Declarant for the complete development of the Property, including, without limitation, the construction and installation of drainage and irrigation facilities, the installation of all utilities including trash storage and removal, the construction of all roads and bridges, the grading and landscaping of the Property, the construction of all other improvements to be constructed by Declarant such as the Townhouses, the erection or placement of temporary structures and the temporary storage of materials and fill dirt as may be reasonably necessary to facilitate the development of the Property, and the placement of such sign or signs on the Property by the Declarant as the Declarant may deem advisable in connection with the sale of, development of or construction on the Lots or Townhouses. 000b.RJM - 4 -- 567592 567592 B-671 P-574 07/19/95 03:28P PG 4 OF 31 (b) The right of Declarant to grant additional easements, and to relocate existing easements, utilities, trash storage and removal, irrigation, drainage, grading, access and similar purposes as may be reasonably required for the performance and completion of Declarant's development work; provided that no such easements shall be granted or relocated so as to encroach upon the Building Envelopes of the Lots. (c) The right of Declarant to develop and create townhouses or condominiums (herein defined as "Townhouses") on Tract A, Dakota Subdivision as shown on the Plat, in compliance with all applicable Garfield County regulations, which shall include the right to subject this Tract to a declaration creating a condominium community of ownership within the Dakota Subdivision, by the recording of a declaration and separate supplemental plat map defining the units of airspace, the common elements, if any, the allocation of interests in and to the common elements, in accordance with Paragraph 5.1 hereof, and to create a separate homeowners' association to govern, own and manage and maintain the common elements of the Townhouses pursuant to the provisions of the Colorado Common Interest Ownership Act. ARTICLE 4 PROVISIONS APPLICABLE TO THE LOTS 4.1 Residential Use. Each Lot• shall be used only for single family residential purposes and such accessory uses as may be permitted by the applicable zoning regulations of Garfield and Eagle Counties, as the case may be. Tract A, Dakota Subdivision, as shown on the Plat, may be developed for residential use for Townhouses in accordance with the applicable zoning regulations of the County of Garfield. 4.2 Compliance with Declaration. All buildings and other improvements constructed upon a Lot, and the use thereof, shall comply with the provisions of this Declaration. 4.3 Approval by Architectural Committee. No improvement rel shall be made to any Lot by an Owner without (i) the prior approval of the Architectural Committee as hereafter provided; and (ii) a building permit issued by the County of Garfield or Eagle, as the case may be, the application for which shall require a drainage plan and the construction thereof which is consistent with the then current applicable County requirements. (a) The Architectural Committee shall initially be comprised of three (3) persons appointed by the Declarant. Upon transfer by the Declarant of the Common Areas to the Association, in accordance with this Declaration, the Association, by its Executive Board, shall have the power to appoint all members of the Architectural Committee, and the Association may, in its discretion, increase the Architectural Committee to no more than five (5) members. 0006_RJM - 5 567592 B-671 P-574 07/19/95 03:28P PG 5 OF 31 (b) In the event of any vacancy in the Architectural Committee for any reason, the remaining members may continue to function and carry out the duties and obligations of the Architectural Committee. Any vacancy shall be filled within such time as may be reasonably practical by the Declarant or the Association, whichever is responsible for the appointment of such members. In the event that there are no persons willing or able to serve as members of the Architectural Committee, the duties of the Architectural Committee shall become the responsibility of the Declarant or the Executive Board of the Association, whichever is responsible for the appointment of members to the Architectural Committee. (c) The Architectural Committee shall have the following duties: (i) No building or other structures shall be constructed, erected or maintained on any Lot, nor shall any addition thereto or change or alteration thereof be made until the complete and final plans and specifications have been submitted to the Architectural Committee and approved by it in writing. Such plans and.specifications shall include, but not be limited to, a color rendering, geologic soils site investigation and foundation report, the floor, elevation, plot and grading plans, provisions for off-road parking and locations of driveways and driveway accesses, the specifications of principal exterior materials to be utilized, complete landscape plans, color schemes and the location, character and method of utilization of all utilities for the particular Lot development. (ii) The Architectural Committee shall be available to Lot Owners for consultation prior to and during the preparation of the plans and specifications for the proposed construction on the Lot in order to avoid delays in approval of such plans and specifications. (iii) The Architectural Committee shall be responsible, along with the Owner, of determining that each structure to be constructed, erected or maintained on a Lot shall be in strict conformance with the approved plans and specifications for the Lot. (iv) In reviewing such plans and specifications, the Architectural Committee shall take into consideration the suitability of the proposed building or other structures and the materials of which it is to be built on the Lot upon which those buildings or other structures are to be erected, the harmony thereof with the surroundings and the effect of such buildings and other structures upon the view, perspective and outlook of the adjacent or neighboring Lots. The Architectural Committee shall use reasonable judgment in reviewing and approving any plans and specifications, but the Architectural Committee shall not be liable to any person or 0006.RJM - 6 4 567592 B-671 P-574 07/19/95 03:28P PG 6 OF 31 owner for its actions in connection with the submitted plans and specifications, unless it is shown that the Architectural Committee acted with malice or wrongful intent. (d) Upon submission of a complete set of plans and specifications to the Architectural Committee, the Architectural Committee shall accept or reject such plans and specifications, in whole or in part, by giving notice thereof in writing to the Owner within forty-five (45) days after such submission. Such acceptance or rejection may be absolute or conditional upon required changes, and with or without recommendations for modification. In the event that the Architectural Committee shall fail to act within such forty-five (45) day period, the owner shall be entitled to a rebuttable presumption that the submission meets the general architectural control standards of the Association, but the Architectural Committee shall not be deemed to have approved such plans and specifications with respect to any substantial deviation therein from such standards. (e) Where the Architectural Committee has failed to act upon a submission within forty-five (45) days of submission thereof, an Owner shall make application to the Declarant or the Association, whichever has the power to appoint members of the Architectural Committee, for written approval of the plans and specifications. If the Declarant or Association has not acted upon such submission by providing written notice to the Owner of approval or rejection of such plans and specification, conditional or unconditional, within thirty (30) days thereafter, the Owner shall be entitled to a conclusive presumption that the submission meets the architectural control standards of the Association. (f) No owner may seek any building permit or commence construction of any improvements on his Lot unless and until he has received written approval, condition or unconditional, of such plans and specifications from the Architectural Committee, Declarant or Association. (g) The Architectural Committee shall have all powers required to meet it duties and obligations as set forth in this Article 4, and elsewhere in this Declaration, and may make such rules and regulations as it deems fit a proper to govern the submission of plans and specifications, the review of such plans and specifications, the conduct of meetings for the purpose of reviewing such plans and specifications, and the approval or rejection, conditional or unconditional, of such plans and specifications. (h) In the event of any litigation involving the duties and responsibilities of the Architectural Committee, and their exercise thereof, the successful party shall be entitled to recover any and all costs and expenses incident to such litigation, including reasonable attorneys' fees. 0006. R A - 7 567592 B-671 P-574 07/19/95 03:28P PG 7 OF 31 4.4 size of Dwelling- No residence built an any Lot shall contain less than one thousand five hundred (1,500) square feet of floor area, exclusive of garage. 4.5 Lighting. All exterior lighting shall be "down" lighting with a minimum glare visible from neighboring properties. There shall be no moving or flashing light systems permitted on any Lot. 4.6 Outdoor Fixtures. Outdoor fixtures, except for chimneys and weather vanes, shall not be permitted without the prior written permission of the Architectural Committee. 4.7 Reflective Finishes. Reflective finishes and reflective glass shall not be used on exterior surfaces, including, without limitations, walls, roofs, windows, doors, trim, retaining walls and fences; except that the foregoing shall not prohibit skylights. 4.8 Utilities. All water, sewer, gas, electrical, telephone, cable television and other utility pipes or lines shall be buried underground and shall not be carried on overhead poles or above the surface of the ground. Any areas of natural vegetation or terrain disturbed by the burying of utility lines shall be revegetated by and at the expense of the Owner causing the installation of the utilities no later than the next growing season following such installation. 4.9 Animals. No horses, cows, fowl or other farm animals or livestock shall be kept on any Lot_ Domestic pets, such as dogs and cats, shall be permitted, subject to the rules and regulations with respect thereto as may be promulgated from time to time by the Association or as may be otherwise provided herein. There shall be a limit of two (2) dogs and/or two (2) cats per Lot allowed in Eagle Dakota Subdivision and one (1) dog and/or two (2) cats per Lot allowed in the Dakota Subdivision. The Association shall have the right to enforce the above provisions by injunctive relief and any other remedy available at law or equity and may impose and collect fines of up to $500.00 for the first violation, $1,000.00 for the second violation, $1,500.00 for the third violation. In addition, the Association shall have the right to impose and collect at least the following fines for any dog caught running at large and/or for excessive barking: $75.00 for the first violation, $150.00 for the second violation, and $300.00 for the third violation. Upon the third violation for running at large and/or excessive barking, the dog(s) must be permanently removed from the Property. In the event that an Owner shall not recover an animal which has been impounded by the Association within ten (10) days of impoundment, the animal may be entrusted to the appropriate government agency or humane society chapter for permanent disposal. Any fines referred to herein may be collected by the use of any remedy available to the Association, including foreclosure of liens, as set forth in Article 8 hereafter. 4.10 Enclosure of Unsightly Facilities and Equipment. All unsightly facilities, equipment and other items, including but not 0006.RJM - 8 - 567592 B-671 P-574 07/19/95 03:28P PG 8 OF 31 limited to those specified below, shall be enclosed within a covered structure. Any motor home, trailer, boat, truck, tractor, snow removal or garden equipment and any similar items shall be kept at all times, except when in actual use, in an enclosed garage approved by the Association. Any refuse or trash containers, tanks, utility meters or other facilities, service area, or storage pile shall be enclosed within a structure or appropriately screened from view by planting or fencing approved by the Architectural Committee and adequate to conceal the same from neighbors and public and private roads. No lumber, metals, materials, scrap, refuse or trash shall be kept, stored or allowed to accumulate on any Lot, except building materials during the course of construction and only for such reasonable periods of time as is necessary prior to the collection of or disposal thereof. 4.11 No Water wells or Appropriation. Individual water wells shall not be permitted on any Lot and no owner shall be permitted to drill for water on his Lot. No Lot Owner shall divert water from any surface drainage or ditch for any use or any purpose, except as allowed by the Association. Each structure designed for occupancy or use by humans on any Lot shall connect with water services made available by Declarant or the Association at any time in the future. 4.12 Impairment of Drainage. No Owner shall do anything which shall impair or adversely affect the natural drainage of the Property, or divert drainage water unto another Lot, or deprive any other Lot of its natural drainage course. Each Owner shall install culverts where driveways cross road ditches, irrigation channels and other drainage ways as required by the Architectural Committee. 4.13 No subdivision. No Lot shall be subdivided into smaller Lots or conveyed or encumbered in any less than the full dimensions thereof as shown on the Plat, except as to the permitted condominiumization on Tract A, and except for a boundary line adjustment by Owners between two lots which may be permitted upon the: (a) approval of the Association and either Garfield or Eagle Counties as may be appropriate; and (b) the Owners desiring such adjustment shall pay all of the costs incident thereto, i:1cluding the preparation approval and recording "of any required amended Plat. 4.14 Private Roads. The Declarant shall, at Declarants cost, construct the private roads as shown on the Plat. Thereafter, the costs of the maintenance and repair of said private roads, including snow removal, shall be payable by the Owners of the Lots and Townhouses accessed by such private roads as provided for in Paragraph 5.9 below. 4.15 Emergency Access Easement. A nonexclusive easement for ingress and egress is hereby granted to all police, sheriff, fire protection, ambulance, and other similar emergency agencies of persons, now or hereafter servicing the planned community and its residents, to enter upon all roads, private roads, and driveways 0006.RMM 567592 B-671 P-574 07/19/95 03:28P PG 9 OF 31 - 9 - located in the planned community, and on any property in the planned community, in the lawful performance of their duties. 4.16 Easements. The Lots shall be subject to the easements shown and described on the Plat and to such further easements as are provided for and/or authorized in this Declaration. 4.17 Fences. Except as provided herein, no fence, wall or similar type barrier exceeding thirty-six (36) inches in height of any kind shall be constructed, erected, or maintained an any Lot, except such functional fences or walls as may be approved bythea Architectural Committee as an integral or decorative part building to be erected on a Lot. Any wire fence which is permitted shall have a twelve (12) inch kickspace between the two (2) top wires. The Architectural Control Committee may also approve higher fences for the enclosure of gardens or animals, buTtfeesse fences shall not enclose more than four hundred (400) square et. 4.18 signs. No signs, billboards or other advertising structure of any kind shallbe erected, constructed or maintained on any Lot or the Common Areas for any purpose whatsoever, except such signs as have been approved by the Architectural Committee or the Association, either for identification of residences or other approved uses and except as are in compliance with the regulations of Eagle and Garfield Counties as may be applicable. 4.19 Trash. No trash, ashes or other refuse shall be thrown or dumped anywhere on the Property. There shall be no burning or other disposal of refuse out of doors. There shall also be no burning of materials or refuse during construction. Each Lot owner shall provide suitable enclosed receptacles for the temporary storage and collection of refuse and all such receptacles shall be screened from public view and protected from disturbance. 4.20 Roof Height and Pitch Restrictions. All structures on Lots 1, 2 and 9, Block 1, Eagle Dakota Subdivision, as shown on the Plat, shall be height restricted so that the distance from the existing grade to the midpoint of the roof on all sides of each structure is no more than twenty-five (25) feet. The distance from the existing grade all of the pLoitch shallall be no roofs less thanar all arsixd (6) lto improvements o twelve (12) pitch. 4.21. Water Outside of Unit. Each Lot shall be provided with pressurized non -potable water via a pressurized water main that is to be used for all outside watering. Hose bibs will be allowed on the residences on the Lots from the main water supply to each residence for firefighting, washing of private vehicles, mainte- nance of driveways and walkways and maintenance of residences, but not for watering of yards or landscaping. This provision may not be amended without the express written permission of the District. This prohibition on the use of potable water and the oblige ation ants o use non -potable water for all outside watering, shall 0006.RJM - 10 - 567592 B-671 P-574 07/19/95 03:28P PG 10 OF 31 running with each lot, and shall bind the owners and persons in possession of each Lot. In the event of any violation of Paragraph 4.21 of this Declaration, the Association shall levy a fine of $50.00 per day for every day the violation exists or continues to exist, which fines shall be paid over to the District. Fines shall be imposed in accordance with Paragraph 7.8 of this Declaration, and, if unpaid, shall constitute a personal obligation and/or lien as provided in Paragraph 7.8. The Association agrees to enforce the provisions of Paragraph 4.21 upon request by the District. Furthermore, the District shall have the right to prosecute any action to enforce this Paragraph 4.21 or other restriction of this Declaration relating to limitations on the use of the District's potable water supply or the District's water and sewer system. Such right shall include the right to prosecute any action for injunctive relief and for damages by reason of any violation, and the failure to enforce any of the restrictions herein at the time of its violation shall not constitute a waiver of the right of enforcement. The prevailing party in any enforcement action shall be entitled an award of its reasonable attorneys' fees and costs. The District is made a third -party beneficiary of this Declaration of the provisions of this section. 4.22 Irrigation of Specific Lots. The maintenance of existing irrigated lands within the Property`is recognized to be important to the preservation of the integrity and beauty of the Property. To that end, the owners of Lots 1, 2, 7, 8, and 9, Block 1 of the Eagle Dakota Subdivision and Lots 1 through 7 inclusive, Block 2 of the Dakota Subdivision, shall be required to continue to irrigate, by use of the non -potable water irrigation system, at least seventy-five percent (75%) of the portion of each of these Lots which is not covered by improvements. 4.23 Parking of vehicles. There shall be no open parking of trucks, campers, trailers, recreational vehicles or similar vehicles on Lots or in the Common Areas without specific written approval of the Association. Such vehicles may be m_intained and parked within structures for that purpose and as approved by the Architectural Committee. Off road vehicle parking shall be provided on each Lot in a ratio of three (3) parking units for each Lot, (two (2) of which shall be enclosed), and two and one-half (2.5) parking units for each Townhouse erected on Tract A, Dakota Subdivision. Unless otherwise approved by the Architectural Committee, each parking unit shall contain a minimum of three hundred (300) square feet and shall be located entirely within the Lot. 4.24 Framing Materials. For environmental reasons, manufactured wood materials must be used for all nonvisible framing members above 2 x 6's. This restriction shall apply to 2 x 8's, 2 x 10's, 2 x 12's and floor framing materials. OQQ6.R.1M - 11 - L 567592 8-671 P-574 07/19/95 03:28P PG 11 OF 31 4.25 Fireplaces. All fireplaces in all dwellings on all Lots shall be gas fire except for any fireplaces maintained by the Association in any Common Areas. 4.26 Trees. All trees naturally existing upon any Lot, or the Common Areas, except to the extent necessary for construction purposes, shall not be cut, trimmed or removed from the properties, except that the Architectural Committee may recommend or approve some cutting, removing, thinning or trimming if it seems desirable. 4.27 setback Restrictions. All setbacks shall be as shown on the Plat and shall meet all Garfield County and Eagle County Subdivision setback restrictions, as are appropriate. 4.28 Landscaping. All surface areas disturbed by construction shall be returned promptly to their natural condition and replanted in native grasses; but the Architectural Committee may approve construction of gardens, lawns and similar appurtenant areas. A landscape fee of $1,000 shall be paid at time of construction to the Association as collateral for all site improvements. The fee will be returned when all landscape and driveway improvements have been completed. In addition, upon the construction of residential improvements, each Lot shall be landscaped with at least three (3) trees of a minimum six (6) feet in height and five (5) bushes of a five (5) gallon size. 4.29 Temporary structures. No temporary structure, excavation, basement, trailer or tent shall be permitted on the Property, except as may be determined to be necessary during construction and specifically authorized by the Architectural Committee and by Garfield County if in the Dakota Subdivision, in writing. 4.30 Continuity of Construction. All structures commenced on any Lot shall be prosecuted diligently to completion and shall be completed within twelve months of commencement unless an exception or extension is granted in writing by the Architectural Committee. 4.31 Nuisance. No noxious or offensive activity shall be -') carried on any Lot or an the Common Areas, nor shall anything be done or permitted which shall constitute a public nuisance therein. No chain saws may be used on any Lot except as permitted by the Association. 4.32 Damage by Owners. Each Owner is responsible for any damage caused to roads, ditches, fences, trails, natural draining courses, utilities, Association property, or to other Lots or property thereon during the construction of improvements upon his Lot by any vehicle belonging either to him or anyone using the roads while engaged in any activity benefiting the Owner. Each Owner shall also be responsible for any damage caused by utility cuts in roads, washouts and runoff damage caused by failure to properly install culverts, and to repair any such damage in a timely manner. 0006.RJM - 12 - 567592 0-671 P-574 07/19/95 03:28P PG 12 OF 31 4,33 Wetlands_ wetlands as shown on the Plat may not be altered in any way from their natural condition. The vegetation may be trimmed or mowed only. This provision may not be amended without the express written consent of the U_S. Army Corps of Engineers. 4.34 Pinning of Lots. The Declarant shall be responsible for the "pinning" of each Lot for the first purchaser thereof, but after the closing of said sale, neither the Declarant nor the Association shall have any responsibility to any subsequent purchaser of any Lot to either "pin" or to locate the corner of any Lot, nor shall either of them have any responsibility for locating sewer or water lines on any Lot to any subsequent purchaser. ARTICLE 5 PROVISIONS APPLICABLE TO THE COMMON AREAS 5.1 Allocation of Interest. The respective fractional interest of each Lot Owner in the Common Areas, if any, shall be an undivided 2/96 fractional interest, and shall be subject to the Articles and Bylaws of the Association as may be amended from time to time. The respective interest of each Townhouse Owner in the Common Areas, if any, shall be an undivided 1/96 fractional interest, and shall be subject to the Articles and Bylaws of the Association, and the declaration executed and recorded for the purpose of governing the management of the Townhouses upon completion, as amended from time to time, pursuant to the reservations contained in Paragraph 3.5 above. The combined fractional interests of the Lot Owners and Townhouse Owners shall equal one (1)_ 5.2 Benefit of Owners. The Common Areas as shown on the Plat shall be maintained and managed by the Association for the benefit of the Owners for the uses and purposes set forth in this Declaration. Appurtenant to each Lot and Townhouse shall be a nonexclusive easement to use the Common Areas, subject to the right of the Association to reasonably limit and regulate the use of the Common Areas by the Owners. 5.3 Development. The Common Areas may be developed in accordance with the Subdivision Improvements Agreements, the landscaping plan provided for therein, and all of the easements now and hereafter granted with respect thereto. 5.4 Easements. The Common Areas shall be subject to the easements as shown on the Plat and to such other and further easements as are provided for and/or authorized in this Declaration. The Association, upon acquiring ownership of the Common Areas, shall have the right to grant easements with respect thereto, either public or private, in furtherance of the intents and purposes of this Declaration. 5.5 Compliance with Law. No Owner, his lessees, nor his family members and guests, shall do anything, or keep anything, 0005.RJM - 13 - w 567592 B-671 P-574 07/19/95 03:28P PG 13 OF 31 in or on the Common Areas which would be in violation of this Declaration, or any statute, rule, ordinance, regulation, permit or other validly imposed requirement of any governmental or quasi - governmental body. 5.6 Obligations for Maintenance and Management. Except for those obligations to be performed by Declarant with respect to the development of the Common Areas and Common Facilities, the Association, upon acquiring ownership of the Common Areas and Common Facilities, shall assume and perform all obligations for the Maintenance of the common Areas as provided for in this Declaration, and Declarant shall automatically be released from said obligations. Such maintenance responsibility may be delegated by the Association to third parties subject to the terms of the Bylaws of the Association. 5.7 Conveyance of Common Areas and Common Facilities to Association. No later than upon the sale of fifty percent (50%) of the Lots and Townhouses, Declarant shall convey ownership of the Common Areas and Common Facilities to the Association as defined in this Declaration, together with all rights and easements appurtenant thereto, to the Association, subject to this Declaration and all reservations, exceptions, easements and restrictions pertaining thereto, but free from all monetary liens except the lien for general real estate taxes for the calendar year of such conveyance. Such conveyance shall be made without monetary consideration and may be made from time to time either before or after Declarant has constructed the improvements thereon to be constructed by Declarant pursuant to the Subdivision Improvements Agreements or elsewhere provided for herein; provided that the conveyance thereof shall not release Declarant of Declarant's obligations to construct such improvements. 5.8 Release of Declarant's Obligations. Upon the execution of an agreement between Declarant and the Counties of Eagle and Garfieldacknowledging that the Declarant has performed all of Declarant's obligations under the Subdivision Improvements Agreements for Dakota Subdivision or Eagle Dakota Subdivision. Declarant shall automati4ally be released of Declarant's obligation for the construction of the improvements -on the Common Areas and Common Facilities as provided for in the Subdivision Improvements Agreements. 5.91 Private Road Easements. Dakota Court, as shown on the Plat, is to provide access to, and is for the exclusive use and benefit of, the Lots accessed thereby. Dakota Drive, as shown on the Plat, is to provide access to, and is for the exclusive use and benefit of, the Lots and Townhouses accessed thereby. Dakota Lane, as shown on the Plat, is to provide access to, and is for the exclusive use and benefit of, the Townhouses accessed thereby. There is reserved to the Declarant and the Association permanent perpetual easements under, over, and across Dakota Court, Dakota Lane and Dakota Drive for the purposes of operating, installing, constructing, maintaining and repairing these roads, the water 0006.RJM A1 - 14 - 567592 B-671 P-574 07/19/95 03:28P PG 14 OF 31 distribution systems, other utilities, and for such other purposes as are described in this Declaration and on the Plat. The Association shall have the obligation to maintain said private roads in good condition and repair and to provide for snow removal; provided, however, that the cost of such maintenance and snow removal for such private roads shall be allocated and assessed exclusively to the owners of the Lots or Townhouses accessed by said private roads in proportion to the number of such Lots or Townhouses owned by each of them, and shall not constitute a common expense allocable and assessable to all of the Owners. Declarant shall convey the private roads to the Association and the Association shall be obligated to accept such conveyance and ownership upon completion of construction thereof. 5.10 Prohibited uses of Common Areas. The Association may, in its discretion, provide rules and regulations for the use of snow mobiles, motor bikes, and motorcycles, and for the engagement of recreational activities, such as cross country skiing, on the Common Areas. Except as specifically authorized by the Association, none of the aforementioned activities may be carried on in the Property. ARTICLE 6 VARIANCES 6.1 Variances. The Association may, by the majority .vote of the members of its Architectural Committee, grant reasonable variances from the strict compliance with the provisions of this Declaration in the case of undue hardship, but only if such variance is approved by the appropriate governing bodies of the Counties of Garfield or Eagle, as the circumstances dictate. ARTICLE 7 THE ASSOCI.TION 7.1 Business and Membership. The Executive Board of the Association shall consist of three (3) members. The Association through its Executive Board shall govern and manage the Common Areas and shall enforce the provisions or this Declaration. All Owners shall automatically be members of the Association, and such membership shall automatically cease upon termination of the Owner's interest in his Lot or Townhouse, and shall be subject to the right of the Declarant to appoint the Executive Board until all the Lots and Townhouses are sold. Membership shall be appurtenant to a Lot and Townhouse and shall not be separately conveyed, encumbered or abandoned. For so long as the Colorado Common Interest Ownership Act requires it, not later than sixty (60) days after the conveyance of twenty-five percent (25%) of the Lots and Townhouses to owners other than the Declarant, at least one member and not less than twenty-five percent (25%) of the Board shall be elected by Owners other than the Declarant. Not later than sixty (60) days after conveyance of fifty percent (50%) of the Lots and Townhouses to Owners other than the Declarant, not less than thirty-three and one-third percent (33113%) of the Board must be 0006.RJM V - 15 - 567592 13-671 P-574 07/19/95 03:28P PG 15 OF 31 lr elected by Owners other than Declarant, provided, however, the Owners, by a vote of sixty-seven percent (67%) of the quorum entitled to vote at any meeting may remove any member of the Board with or without cause, other than any member of the Board appointed by the Declarant. 7.2 Binding Effect. Each Owner, his lessees, their families and guests and any other persons using or occupying a Lot or Townhouse shall be bound by and shall strictly comply with the provisions of this Declaration, the Bylaws, the Articles, the Rules as defined hereafter, any deed restrictions and covenants and all rules, regulations and agreements lawfully made by the Association. The Association shall have the right and power to bring suit in its own name for either legal, equitable or injunctive relief for any lack of compliance with any such provisions. The failure of the Association to insist upon the strict performance of any such provisions or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future, of any such provision. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this Declaration, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. 7.3 Powers of the Association. Each Owner agrees that the Association has all the powers granted it by the Colorado Non - Profit Corporation Act and the Colorado Common Interest Ownership Act and any amendments thereto or replacements thereof. Such powers shall include, without limitation, levying assessments against Owners, imposing a lien on Lots for any unpaid or uncollected assessments or penalties, and foreclosing any such liens, enforcing any deed restrictions and covenants, acquiring, holding, owning, leasing, mortgaging and disposing of property including but not limited to real property or personal property used or as in connection with the Common Areas or Common Facilities, the adoption of rules and regulations, the defending, prosecuting or interv9ntion in litigation on behalf of all Owners, the borrowing of monies for Association purposes and the right to pledge future income in order to secure such borrowings. The term "pledge of future income" shall include the right to impose a special assessment for repayment of such borrowings and to assign such special assessment (and all lien and collection rights appurtenant thereto) to the lender as security for repayment thereof. The Association may exercise any other right, power or privilege given to it expressly by this Declaration, the Articles and Bylaws, or by the Colorado Common Interest Ownership Act, and every other right, power or privilege reasonably to be implied from the existence of any right, power or privilege given to it herein or reasonably necessary to effectuate any such right, power or privilege. 7.4 Association Rules. The Association may from time to time adopt, amend and repeal rules and regulations to be known as the 0006.RJH - 16 - 567592 B-671 P-574 07/19/95 03:28P PG 16 OF 31 "Dakota Association Master Association Rules" (hereinafter the "Rules") by the majority vote of the Board. The purpose of these Rules shall be to implement, supplement or otherwise carry out the purposes and intentions of this Declaration. The Rules shall be consistent with this Declaration. 7.5 Maintenance of common Areas and Common Facilities. The Association shall be responsible for Maintenance and operation of all Common Areas and Common Facilities as a Common Expense. (a) The Association shall have the right to suspend the right to the use of the Common Areas and Common Facilities and any recreational facilities or amenities thereon of a member or members of his family for any period during which any such member remains delinquent in the payment of any Association assessments. (b) The Association may also suspend or limit the right of any Owner or other person to use the Common Areas or Common Facilities and improvements or amenities thereon for any violation of these Covenants, conditions and Restrictions, the ByLaws or rules and regulations adopted by the Association or Architectural Committee; provided, however, that before suspending or limiting any such right, the Association shall give ten (lo) days written notice to the Owner or other person to cease or correct the violation. If the violation is corrected or ceased, the Association shall take no action to suspend or limit such use of the Common Areas or Common Facilities. (c) The Association shall have the right to limit the number of guests of the members using the Common Areas. (d) The Association shall have the right to dedicate or transfer all or any part of the Common Areas or Common Facilities or improvements thereon to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Owners; provided, however, that no such dedication or transfer shall be effective unless written notice of the proposed dedication or transfer is sent to every Owner at least twenty (20) days, and not more than sixty (60) days prior to the decision to make such dedication or transfer, and unless an instrument is signed by the Owners entitled to cast two-thirds (2/3) of the votes agreeing to such dedication or transfer. 7.6 Maintenance of Mid -Valley Metropolitan District Areas. The Association shall be responsible for the maintenance of certain trees and landscaping on real property owned by the District as set forth on the landscaping plan dated January 6, 1994 prepared by Isom and Associates (July 14, 1994 revision) and approved by the District as part of the Line Extension Agreement for the Property and as set forth in Paragraph 11 of the Pre -Inclusion Agreement recorded in the offices of the Clerk and Recorder of Eagle County in Book 638 at Page 176 as Reception No. 534227. The costs of such maintenance shall properly be the part of any assessments levied by 0006.vm 17 4 567592 B-671 P-574 07/19/95 03:28P PG 17 OF 31 the Association. The District is hereby made a third party beneficiary of the provision of this Paragraph 7.6. 7.7 Additional Association Functions. The Association may undertake, to the extent the Board, in its sole discretion so elects, to provide any other function for the benefit of or to further the interests of all, some or any Owners on a self- supporting, special assessment, or general assessment basis. The Board shall determine, in its sole discretion, whether the expenses in connection with any such function shall be designated as Common Expenses or as charges allocated solely to Owners utilizing such services. Any such charge shall be reasonable and shall be uniformly applied. Such functions may be provided by the Association's employees, or by an independent contractor retained by the Association. 7.8 Fines. In addition to the enforcement actions provided herein, the Executive Board of the Association shall have the right, after affording notice and an opportunity to be heard to an Owner, to fine the Owner, in a reasonable amount, for any violation of this Declaration. Any sum amounts that an Owner is fined shall be deemed a personal obligation and/or lien against such Owner or that Owner's Lot or Townhouse, and may be collected and foreclosed on in the same manner as is provided herein for the collection of common expense assessments, including reasonable attorney fees and costs. 7.9 Other Rights of the Association. The Association may exercise any other right, power or privilege given to it expressly by this Declaration, the Articles and Bylaws, or by law, and every other right, power or privilege reasonably to be implied from the existence of any right, power or privilege given to it herein or reasonably necessary to effectuate any such right, power or privilege. 7.10 r._ ,.. '.7.: w 7<: r. shall immediately report to the Association the need for any Maintenance which is the Association's responsibility to provide. In the event of any disagreement as to the need for or the responsibility of the Association to provide the Maintenance, the decision of the Board shall be final. 7.11 Mechanics Liens. Declarant shall be responsible for the release of all mechanics' liens filed with respect to the Common Areas, or any part thereof, if any such liens arise or are alleged to arise from labor performed or materials furnished at the instance of Declarant, its agents, contractors or subcontractors. Except as the result of labor performed or materials furnished at the instance of the Board, no labor performed or materials furnished with respect to the Common Areas, Common Facilities, Lots or Townhouses shall be the basis for filing a lien against the Common Areas or Common Facilities. No labor performed or materials furnished at the instance of the Board shall be the basis for filing a lien against any Lot or Townhouse. 0006.RJM 567592 B-671 P-574 07/19/95 03:28P PG 18 OF 31 - 18 - ARTICLE 8 ASSESSMENTS 8.1 Obligation to Pay Assessments. Each Owner of a Lot or Townhouse shall be subject to such general or special assessments as the Association may levy from time to time. The assessments collected shall be used exclusively to promote the operation, administration, Maintenance and management of the Common Areas, Common Facilities, and the Property for the use and benefit of all Owners. Each Owner shall be obligated to pay and agrees to pay all such assessments levied against his Lot or Townhouse and may not exempt himself from liability by waiver of the use and enjoyment of the Common Areas or by an abandonment of his Lot or Townhouse. 8.2 General Assessments. General assessments shall be based upon a budget for a fiscal year to be designated by the Board, shall include funds for the Common Expenses, and shall also include funds as a reserve for Maintenance which cannot be expected to occur on a regular annual basis. A brief summary of the annual budget shall accompany each annual general assessment notice and shall be ratified by the members as set forth in the Colorado Common Interest Ownership Act. The failure of the Board to establish a budget for the next fiscal year before the expiration of any fiscal year shall not release the Owners from their obligation to pay any assessments or installments thereof for that or any subsequent year. The budget and assessment installments established for a preceding year shall continue until a new budget is fixed. 2.3 special Assessments. If the estimated cash requirements set forth in the budget prove to be inadequate for any reason, including non --payment of any Owner's assessment, or there are inadequate funds in the reserve, the Board may levy special assessments from time to time. This Section shall not be construed as an independent source of authority for the Board to incur expenses, but shall be construed to prescribe the manner of assessing for expenses authorized by other Sections. 8.4 Apportionment of Assessments. Except as otherwise specifically provided in this Declaration with respect to the private road or otherwise, the amounts assessed pursuant to this Declaration as a common expense, shall be allocated and assessed among the Owners in accordance with the proportions set forth in Paragraph 5.1 hereof. Assessments which are attributable to only particular Lots or Townhouses may be allocated, in the sole judgment of the Board, on an appropriate equitable basis. 8.5 Refunds. If in any fiscal year the assessments collected by the Board exceed Common Expenses incurred, the Board shall have the right, but not the obligation, to make refunds or give credits against future assessments. Refunds or credits shall be apportioned in the same manner as the general and special assessments which created such surplus. Owners whose Lots or Townhouses were subject to this Declaration for less than the full 0006.RJM - 19 - 567592 B-671 P-574 07/19/95 03:28P PG 19 OF 31 fiscal year shall receive only a proportionate refund or credit based upon the number of days the Lot or Townhouse was subjected to this Declaration. 8.6 Assessments Adjustments. with respect to any assessment, credit or refund, the Board shall have the power to round off and make other minor adjustments of less than $10.00 in each Owner's allocation for the following purposes: (i) to create whole round numbers for the convenience of the payor; or (ii) to correct any discrepancy between the total of each Owner's allocation of any such assessment, credit, or refund, and the total amount of either the expenses actually subject to assessment or the surplus actually available for a refund or credit. 8.7 Collection and Enforcement Remedies. (a) All assessments or installments thereof and fines imposed under the Declaration or the rules and regulations of the Association shall be due and payable within twenty (20) days after the due date. Overdue assessments shall bear interest at eighteen percent (18%) per annum, or such other lawful rate or charge as the Board may determine from time to time. The payment of any assessment or fine payable in installments may be accelerated by the Board for failure to pay any installment when due. (b) An assessment or fine shall be the personal obligation of the Owner at the time the assessment or fine is levied against the Lot or Townhouse. A suit to recover a money judgement for unpaid assessments or fines may be maintained against any Owner without waiving or otherwise prejudicing the Association's right to pursue any other remedy provided herein or established by law. The Association shall be entitled to recover the costs, expenses and reasonable attorneys' fees as additional sums due under any lien which may be filed or otherwise which are incurred in enforcing any action for payment of assessments or fines or to enforce compliance with any provision contained herein including those set forth by rule and regulation adopted by the Association. (c) The Association shall have a lien against a Lot or Townhouse for any assessments or fines against the Lot or Townhouse which are due and unpaid from the date of the assessment or fine. Costs of collection, including without limitation, reasonable attorneys' fees and other court costs, shall be added to the assessment or fine lien amount. All amounts unpaid may be evidenced by a statement executed by the Association and recorded in the office of the Clerk and Recorder of Eagle or Garfield Counties, Colorado, as is appropriate. The assessment or fine lien against a Lot or Townhouse shall be subordinate only to the First Mortgage on the Lot or Townhouse, except as may be otherwise provided in the Colorado Common Ownership Interest Act. (d) For the purposes of this Section, the term "assessments" includes any amounts due in accordance with the terms 0006.R JM - 20 .. 567592 B-671 P-574 07/19/95 03:28P PG 20 OF 31 of this Declaration including any fines imposed hereunder or under the rules and regulations of the Association - The Association shall have the right to foreclose such lien in the manner provided by Colorado law for mortgages upon real property, to the appointment of a receiver and to the rental value of the Lot or Townhouse and its improvements during the period of delinquency through the period of foreclosure until expiration of the period of redemption. The Association shall have the power to bid on the Lot or Townhouse at a foreclosure sale and to acquire, hold, lease, mortgage and convey the same_ 8.8 Grantee and Mortgagee Assessment Obligations. No Owner shall convey or mortgage his Lot or Townhouse unless and until all sums due the Association, whether or not evidenced by a recorded statement, are currently paid, but no Mortgage transaction shall be voidable by the Association nor shall the superior position of a First Mortgagee be adversely affected by a lien of the Association. At least ten (10) business days prior to any conveyance or Mortgage, the Owner shall deliver written notice to the Association advising it of the proposed transaction and the names and addresses of all transferees and Mortgagees involved. If any assessment or fine is due and owing by the Owner, his grantee or Mortgagee shall apply the proceeds of any such transaction to the payment of delinquent amounts due the Association before paying or disbursing any amount to the Owner. The grantee of a Lot or Townhouse shall be jointly and severally liable with his grantor for all unpaid assessments against the latter up to the time of the grant or conveyance, without prejudice to the grantee's right to recover from the grantor any amounts paid by the grantee therefor. Upon written request and payment of such reasonable fee as may be set by the Association, the Association shall issue a written statement to such grantee or mortgagee verifying the status of all assessments and fines or charges affecting the Lot or Townhouse. Any statement as to the existence or amount of any delinquencies shall conclusively bind the Association. A First Mortgagee, who takes title to a Lot or Townhouse pursuant to the remedies in the deed of trust encumbering that Lot or Townhouse shall take such Lot or Townhouse free and clear of all unpaid assessments and the lien therefor. 8.9 Assessments for Tort Liability. In the event of any tort liability against the Association which is not covered completely by insurance, each Owner shall contribute for the payment of such liability as a special assessment in the proportion described in this Declaration. The Association may, however, require a larger contribution from fewer than all Owners under any legal or equitable principle regarding liability for negligent or willful acts or omissions. 0006.R.1M - 21 L. 567592 B-671 P-574 07/19/95 03:28P PG 21 OF 31 ARTICLE 9 INaURANCE 9.1 Types of Insurance. The Association shall obtain and keep in full force and effect, if appropriate, the following insurance coverage, individually naming the Declarant, as a Lot owner, and each Owner as an additional insured : (a) Property and fire insurance with extended coverage; and standard all --risk endorsements, including vandalism and malicious mischief, of the Common Areas. The total amount of insurance, after application of deductibles shall be one hundred percent (100%) of the replacement value of the insured property exclusive of land, foundations and other items normally excluded from property policies. (b) Public liability and property damage insurance, including medical payments insurance, in an amount to be determined by the Board from time to time, covering all occurrences commonly insured against for death, bodily injury and property damage arising out of or in connection with the ownership, operation or Maintenance, or other use of, Common Areas. This policy shall also cover operation of automobiles on behalf of the Association. (c) workmen's compensation and employer's liability' insurance in the amounts and in the forms required by law. (d) Fidelity coverage against the dishonesty of. employees, destruction or disappearance of money or securities, and, forgery. This policy shall also cover persons who serve the Association without compensation. (e) Coverage of members of the Board and officers of the Association against libel, slander, false arrest, invasion of privacy and errors and omissions and other forms of liability generally covered in officers and directors liability policies. The Declarant and Declarant's designees shall be included as an additional insured in such Declarant's capacity as a Board Member. (f) Coverage against such other risk of a similar or. dissimilar nature as the Board deems appropriate. 9.2 Conditions of Insurance. Such insurance shall be at standard premium rates as established by the Colorado insurance Commissioner and written with companies licensed to do business in Colorado having a Best insurance report rating of Class 6 or better. No policy shall be obtained where: (a) contributions or assessments may be made against the; Mortgagor (or Mortgagee's designee) under the terms of the, insurance company's charter, bylaws or policy; 0006,RJM 22 567592 B-671 P-574 07/19/95 03:28P PG 22 OF 31 (b) by the terms of the carrier's charter, bylaws or policy, loss payments are contingent upon action by the company's board of directors, policyholders or members; or (c) the policy includes any limiting clauses (other than insurance conditions) which could prevent Mortgagees from collecting insurance proceeds. 9.3 Named Insured and Interests. Policies of property insurance shall name the Association as the insured and the entity to which payment is to be made. The certificate or memoranda of insurance, duplicate originals of all policies and renewals, and proof of payment of premiums shall be issued to the Association, and upon request, to any Owner or Mortgagee. 9.4 Invalidation or Reduction of Coverage. Insurance policies carried pursuant to Paragraph 11.1(a) must provide the following: (a) that the insurer waives its right to subrogation under the policy against any Owner, any lessee and their families; (b) that no act or omission by any occupant will void the policy or be a condition to recovery under the policy, unless that person is acting within the .scope of his authority as an officer of the Association or as a member of the Board; (c) that if, at the time of a loss under the policy, there is other insurance in the name of an Owner or any lessee covering the same property covered by the policy, the policy is primary insurance not contributing to the owner's individual insurance; and (d) that each Owner is an insured person under the policy with respect to liability arising out of such Owner's membership in the Association. ARTICLE 10 DAMAGE, DESTRUCTION AND OBSOLESCENCE 10.1 Insurance Proceeds. The Association shall receive the proceeds of any insurance described in Paragraph 9.1(a) purchased by the Association as the owner of the Common Areas. Any proceeds shall be used for the purpose of Maintenance, unless the Owners decide to terminate this Declaration in accordance with the provisions set forth herein. 10.2 Mandatory Maintenance. In the event of damage or destruction due to fire or other disaster, if the insurance proceeds are sufficient to reconstruct the improvements, the Association shall promptly cause such Maintenance to occur. If the insurance proceeds are not sufficient for such purpose, the Association may levy special assessments against the Owners for such deficiency pursuant to this Declaration. 0006.RJM k, - 23 - 567592 B-671 P-574 07/19/95 03:28P PC 23 OF 31 10.3 Plan for Maintenance. Members holding two-thirds or more of the votes outstanding and entitled to be cast under the Bylaws may agree that the Common Areas, or any part thereof, are obsolete and may adopt a written plan for Maintenance. The Association shall duly record such plan in the offices of the Clerk and Recorder of Eagle and Garfield Counties, Colorado. 10.4 Payment for Maintenance. The expense of Maintenance shall be payable by all of the Owners as Common Expenses. Assessments for the estimated cost of Maintenance shall be levied pursuant to Article 8 hereof and shall be allocated and collected as provided in that Article. Further levies may be made in like manner if the amounts collected prove insufficient to complete the Maintenance. Dissenting Owners shall not be relieved of their obligation to pay their proportionate share of any Common Expenses. If the Association collects more money pursuant to this Section than is ultimately required for Maintenance, the Association shall return such excess to the Owners by a credit against the next installments of the annual assessment, or by a cash distribution to each Owner, in an amount proportionate to the respective amount collected from each Owner. The Association shall have full authority, right, and power to maintain, repair or replace the improvements on the Common Areas notwithstanding the failure of an owner to pay the assessment. ARTICLE 11. TAKING OF COMMON AREAS BY EMINENT DOMAIN If any portion of all of the common Areas is taken or condemned by any authority having the power of eminent domain, all compensation and damages on account of the taking of the Common Areas, exclusive of compensation for consequential damages to affected Lots or Townhouses, shall be payable to the Association as Owner of the Common Areas. Such proceeds shall be used promptly by the Association to the extent necessary for repair and reconstruction of such remaining Common Areas in as substantial compliance to the original plan of development as possible. If there is an award in excess of the amount necessary to so substantially repair or reconstruct such remaining Common Areas, it shall, at the Board's discretion, be either refunded or retained by the Association for such uses as it deems appropriate. ARTICLE 12 TERM, REVOCATION AND AMENDMENT OF DECLARATION 12.1 Term Of Declaration. The term of this Declaration shall be perpetual. 12.2 Revocation of Declaration. Except as restricted by the terms of the Colorado Common Interest Ownership Act and Paragraph 12.4 below, this Declaration may be revoked if seventy percent (70%) of the ownership interests in the Common Areas agree to such revocation by an executed, acknowledged instrument recorded in the offices of the Clerk and Recorder of Eagle and Garfield Counties, 0006.RJH 24 lea 567592 B-671 P-574 07/19/95 03:28P PG 24 OF 31 Colorado. The prior written approval of sixty percent (60%) of the First Mortgagees of Common Areas will be required for any such revocation, except in the case of obsolescence, substantial destruction by fire or other casualty, taking by condemnation or eminent domain, or abandonment or termination provided by law. 12.3 Disbursement of Proc@eds. Upon revocation of this Declaration, the Common Areas shall be sold by the Association, in whole or in parcels, as the Boardmay deem appropriate. All sales proceeds and all amounts recovered under any insurance policy shall be allocated among the Owners in the same proportion as is set forth in Paragraph 5.1 hereof. The funds shall be disbursed, without contribution from one Owner to another, by the Association for the following purposes and in the following order: (a) payment in full of the customary expenses of sale; (b) payment in full of the allocable taxes and special assessment liens in favor of any governmental assessing entity; (c) payment in full of the balance of the lien of any First Mortgage on the Common Areas; (d) payment in full of allocable unpaid Common Expenses and the unpaid costs, expenses,. andfees incurred by the Association; (e) payment in full of recorded junior liens and encumbrances on the Common Areas in the order of and to the extent of their priority; and (f) payment of any balance to the Owners. 12.4 Amendment of Declaration. Except as restricted by the terms of the Colorado Common Interest ownership Act, this Declaration may be amended if the Owners holding seventy percent (70%) pr more of the votes outstanding and entitled to be cast under the Bylaws agree thereto by an executed, acknowledged instrument recorded in the office of the Clerk and Recorder of Eagle and Garfield Counties, Colorado. The prior written approval of sixty percent (60%) of the First Mortgagees of all Lots and Townhouses will be required for any such amendment to take effect. No amendment to the Declaration may be made without Declarant's prior written consent. Notwithstanding the foregoing, the provisions of Paragraphs 4.11, 4.21, and 7.6 shall not be amended without the prior written approval of the District and any such attempt to amend shall be void ab initio. 12.5 Revocation/Amendment of Article 4 by Lot Owners. oncept as restricted by the terms of the Colorado Common Interest Ownership Act and Paragraph 12.4 above, in addition, any of the provisions of Article 4 of this Declaration may be revoked or amended if seventy percent (70%) of the ownership interests in the Common Areas held by the Lot Owners agree to such revocation or 0006.RJM - 25 567592 B-671 P-571 07/19/95 03:28P PG 25 OF 31 amendment by an executed, acknowledged instrument recorded in the offices of the Clerk and Recorder of Eagle and Garfield Counties, Colorado_ The prior written approval of sixty percent (60%) of the First Mortgagees of the Lots will be required for any such revocation or amendment of the provisions of Article 4 hereof. ARTICLE 13 MISQELLANEQUB 13.1 Declarants Rights Transferable. Any right or interest of the Declarant established or reserved in this Declaration may be transferred by Declarant either separately or with one or more of such rights or interests pursuant to the provisions of the Colorado Common Ownership Interest Act. 13.2 Provisions Incorporated in Deeds. Each provision contained in this Declaration shall be deemed incorporated in each deed or other instrument by which any right, title or interest in the Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. 13.3 Number and Gender. Unless the context shall otherwise provide, a singular number shall include the plural, a plural number shall include the singular, and the use of any gender shall include all genders. 13.4 Construction. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development of certain common facilities and functions and for the Maintenance of the Common Areas. 13.5 No Dedication. Nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any part of the Property to the public or for any public use. 13.6 Notices. Any notice permitted or required to be delivered as provided in this Declaration shall be in writing and may be delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered 48 hours after a copy of the same has been deposited in the United States mail, postage prepaid for first class mail and addressed to the receiving party at the address last given by such party to the Association. Any notice to the Association shall be sent to such address as it may from time to time designate in writing to each Owner or if not so designated, to its last known address. 13.7 Mortgagee Notice Rights. Any First Mortgagee will, upon request, be entitled to: (a) inspect the books and records of the Association during normal business hours; 0006_RJM u 567592 - 26 - R-671 P-574 07/19/95 03:28P PG 26 OF 31 (b) receive financial statements of the Association certified by the Association within 90 days following the end of any fiscal year; and (c) receive written notice of meetings of the Association and be permitted to designate a representative to attend all such meetings. 13.8 Successors and Assigns of Declarant. Any rights or responsibilities granted or retained by Declarant under these Covenants shall inure to and be binding on any successors in interest or assigns of Declarant, and any person or entity which accedes to the rights and obligations of Declarant with respect to the real property governed by this Declarant, including affiliates of the Declarant, as that term is defined in the Colorado Common Ownership Interest Act; and such rights and obligations shall become the obligations of such successor or assign, at which time the Declarant shall be relieved of any and all such obligations and liabilities except as may be otherwise provided by the Colorado Common Ownership Interest Act. 13.9 Disclaimer. No representations or warranties of any kind, express or implied, have been given or made by Declarant or its agents or employees in connection with the Property, or any portion thereof, or any improvement thereon, its physical condition, zoning, compliance with'the applicable laws, fitness or intended use, or in connection with the subdivision sale, operation, Maintenance, cost of Maintenance, taxes or regulations hereof as a planned unit development, except as expressly set forth in this Declaration_ 13.10 Limited Liability. The Association and the Board shall not be liable to any party for any action or for and, failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice. The Owners severally agree to indemnify the Association and the Board against loss resulting from such action or failure to act if the Association and the Board acted or failed to act in good faith and without malice. (a) Except as otherwise provided in the Colorado Common Interest Ownership Act or by this 'Declaration for Board members and officers appointed by the Declarant, neither the Association nor its past, present or future officers, directors, nor any other employee, agent or committee member of the Association shall be liable to any Owner or to any other person for actions taken or omissions made except for wanton and willful acts or omissions. Without limit to the foregoing, the Association and the Board shall not 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. Acts taken upon the advice of legal counsel, certified public accountants, registered or licensed engineers, architects or surveyors shall conclusively be deemed to be in good faith and without malice. To the extent insurance carried by the Association for such purposes shall not be 0006.R-iM - 27 - 567592 B-671 P-574 07/19/95 03:28P PG 27 OF 31 adequate, the Owners severally agree to indemnify the Association or Board against loss resulting from such action or failure to act, provided that the Association and the Board acted or failed to act in good faith and without malice. (b) Any member or officer of the Association appointed by th'e Declarant as provided for herein shall exercise in the performance of their duties the standard of care required of fiduciaries of the Owners. 13.11 Severability. Invalidation of any one of the provisions of this instrument by judgment or court order or decree shall in no way affect the validity of any of the other provisions which shall remain in full force and effect. 13.12 Rule Against Perpetuities. If any of covenants, conditions, easements, restrictions, uses, or obligations created by this Declaration shall be void for violation of: (a) the rule against statutory provisions; (b) the rule restricting restraints on alienation; or (c) any other statutory or common law rules imposing like or similar time limits, such provision shall continue only for the period of the life of Edward Podolak, his now living descendants, and the survivor of them, plus twenty-one (21) years. 13.13 Release of Liability. Declarant, for itself, its suc- cessors and assigns, the Association, the Board, and its members, their guests, invitees, agents, tenants and employees, hereby agree to hold the District harmless from all damages, direct or consequential, that occur as a result of the failure of the lift station servicing the Dakota Subdivision regardless of the cause of the failure, except in the event of the District's wilful or wanton negligence. Pursuant to the District's rules and regulations and this provision of which the District is hereby made a third party beneficiary, no claim for damage shall be made against the District, the District shall incur no liability by reason of the following occurrences, blockages in the system causing the backup of wastewater, damages caused by the "smoking" of lines to determine drainage connections to District lines, or for the interruption of sewer service and the conditions resulting therefrom or said interruption of services brought about by the request of the Declarant, interruption of electrical service, a failure of the lift station pump, or circumstances beyond the District's control, except in the event of the District's wilful or wanton negligence. 13.14 Run With the Land. Declarant, for itself, its successors and assigns, hereby declares that all of the Dakota Subdivision shall be held, used and occupied subject to the perpetuities the terms, limitations unlawful or or some analogous 0006.RJM - 28 -- 567592 B-671 P-574 07/19/95 03:28p PG 28 OF 31 this Declaration, and to the covenants and provisions of and that the provisions hereof shall restrictions contained herein, upon all persons who hereafter runewitht the land and be interestofany land or estate within the become the Owner of any Dakota Subdivision or Eagle Dakota Subdivision. IN WITNESS WHEREOF, Declarant has executed this Declaration the day and year first above written. DAKOTA PARTNERS LLC, a Colorado Limited Liabilompany By: STATE OF COLORADO ) ss_ ward Podolak, Manager COUNTY OF PITKIN ) At) The foregoing instrument was acknowledged Manager er re mo fthis -- da 1994, by Edward Dakota yof PartnexsI LLC, a Colorado Limited Liability Company, on behalf of said li7nie liability company. WZNES,S;m T - y hand and offiei-1 My\`a+tission expires: a _ • 0006.RJM -- 29 - 567592 B-671 P-574 07/19/95 03:28P PG 29 OF 31 cu,,,r.r ,- ,vGu.LLt/Bic 4g.158 EXHI'IIT "A" PROPERTY DESCRIPTION LOT 2 A PAROL OF LAND SITUATED ON LOTS 4 F SECTION 33, 6, THE 4TOWNSHIP THE7 S1J2NE1/4 AND IN THE SE1/4NW1/4NE1/4 SOUTH, RANGE 87 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTIES OF GARFIELD AND EAGLE, D TAS FOLLOWS COLORADO; SAID PARCEL BEING MORE PARTICULARLY DESCRIBE COMMENCING AT THE SOUTHEAST CORNER 3300.72 Qo . SAID FEETTION TO A 3, A BRASS CAP POINT ON THE IN PLACE; THENCE N 47°22'10" NORTHERLY RIGHT -0F -WAY OF NEW STATE HIGHWAY NO. 82, SA D POINT ALO BEING ON THE EASTERLYEGACOUNTY, FIT S a-GINNINS; THENCE LEVINGSAIDSTERLYLINEN°40'18"W ALONG F SAID NORTHERLY RICHT-OF-WAY 91.02 FEET; THENCE CONTINUING ALONG SAID NORTHERLY RIGHT-OF-WAY N 54°22'10" W 213.65 FEET; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY 26479 FOET AND ARCNG THE AOF A CENTRALRVE. TO ANGLE THE OF LEFT HAVING A RADIUS (CHORD BEARS N 63°29'53" W 15°27'09", A DISTANCE OF 799.59 FEET 797.17 FEET) TO A POINT ON THE EASTERLY LINE OF THAT PROPERTY DESCRIBED IN RECEPTION NO. 2 ��,VXNG SAID 01 OF THE GARFIELD NORTHERLYLYRIGHTTY EOFvwANAD RECORDER'S OFFICE; THENCE N 01°26'48" E ALONG THE EASTERLY EALY .�IAI ONOF G THE SAID RECEPTION LINNO. OF SAID 205501 1077.51 FEET; THENCE N 59°39'16" OF RECEPTION NO. 205501 823.51 zaCE�TION NO TOT 434E 84p OF THE NORTHWEST GARFIELD D COUNTY PROPERTY DESCRIBED IN RE CLERK AND RECORDERS OFFICE; THENCE LEAVING R C DPT U ERL 43411E S 15°29'05" W ALONG THE WESTERLY LINE OF SAID59.90 FEET; THENCE S 61°18'35" E ALONG THE SOUTHERLY LINE OF SAID RECEPTION NO. 434184 13 7 . 0S FEET �E40TO Q W IAI,ONG 5A I D EASTERLYNT ON THE EASTERLY NLYNE E OF GARFIELD COUNTY; THENCE 161.66 FEET THENCE LEAVING SAID EASTERLY LINE S 29°01'59" E ALONG THE SGUTHE{LY LINE OF SAID RECEPTION NO. 254334 2.02 FEET; THENCE C0NTI2UING ALONG SAID SOUTHERLY LINE S 58°00'15" E 129.181 FE 8$ THENCE CONTINUING ALONG SAID SOUTHERLY LINE S 75'26'24" FEET; THENCE N 18°43'24" E ALONG THE EASTERLY LINE OF SAID RECEPTION NO. 254334 520.69 FEET TO THE NORTHEAST CORNER OF SAID RECEPTION NO. 254334; THENCE N 00°39'52" E 663.47 FEET TO A POINT ON THE SOUTHERLY LINE OF THAT PROPERTY DESCRIBED IN RECEPTION NO. 495345; THENCE N 89°42'51" E ALONG SAID SOUTHE THEN � x,237.95 FAIT TO THE NORTHWEST CORNER OF BLUE LAKE P.U.D.; SOUTHERLY LINE S 00600'01" W ALONG THE WESTERLY LINE OF SAID BLUE LAKE P.U.D. 16a5.49 FEET; THENCE LEAVING SAID WESTERLY LINE N 77°11'26" W ALONG THE NORTHERLY LINE OF SAID RECEPTION No. 439189 57Z.38 FEET; THENCE CONTINUING ALONG SAID NORTHERLY LINE S 38°08'04" W 158.25 FEET TO A POINT ON THE WESTERLY LINE OF EAGLE COUNTY; THENCE S 000°OBEGO�ONG 5AIDAID I'ARCELTERLY LIE CONTAZNING731.12 42.508FEET TO Ttj TRUE POINT F INNING ACRES, MORE OR LESS. 923 Cooper Avenue Glenwood Springs, CO 81601 Telephone: 303-945-8676 - FAX: 303-945-255 67592 B-071 P-574 07/19/95 03:28P PG 30 OF 31 PAGE NO. 2 PROPERTY DESCRIPTION LOT 2 EXCEPTING FROM THE ABOVE DESCRIBED LOT THAT PORTION OF RECEPTION NO. 205501 AS RECORDED INE G SSD EX EPTI CIELD COUNTY LERK AND N CONTAINING RECORDER'S Q OFFICE WHICH AFFECTS SAID LOT; ACRES, MORE OR LESS. SAID PARCEL CONTAININGA NET ACREAGE OF 41.404 ARES, MORE QR LESS. 567592 B-671 P-574 07/19/95 03:28P PG 31 OF 31