HomeMy WebLinkAbout1.25 - 2015 Revised CCR Lake Springs Ranch
Subdivision Preliminary Plan & PUD Amendment June 2015
Exhibit 24 | Revised CCR’s (w/Track Changes)
AMENDED AND RESTATED DECLARATION OF
COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR
LAKE SPRINGS RANCH PUD
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AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR
LAKE SPRINGS RANCH PUD
TABLE OF CONTENTS
1 STATEMENT OF PURPOSE AND IMPOSITION OF COVENANTS .............................. 1
1.1 Amended and Restated………………………………………………….…..…………1
1.2 Purpose .................................................................................................................................... 1
1.3 Declarant's Intent ....................................................................................................... 1
1.4 Declaration ...................................................................................................................... 1
1.5 Covenants to Run with the Land ..................................................................... 1
1.6 Association .................................................................................................................. 1
2 DEFINITIONS ....................................................................................................... 2
2.1 Definition Reference ..................................................................................... 2
2.2 Act ............................................................................................................ 2
2.3 Articles of Incorporation ................................................................................. 2
2.4 Assessment ................................................................................................. 2
2.5 Association ................................................................................................. 2
2.6 Building Envelope ......................................................................................... 2
2.7 Bylaws ......................................................................................................... 2
2.8 Common Elements ....................................................................................... 2
2.9 Common Expenses ....................................................................................... 3
2.10 Declarant ..................................................................................................... 4
2.11 Declaration ................................................................................................... 4
2.12 Deed of Trust ............................................................................................... 4
2.13 Development Guidelines ............................................................................... 4
2.14 Development Review Committee ................................................................... 4
2.15 Eligible First Mortgagee ................................................................................. 4
2.16 Executive Board ......................................................................................... 4
2.17 First Mortgagee ............................................................................................ 4
2.18 Improvements .............................................................................................. 4
2.19 Lot ............................................................................................................... 5
2.20 Member ..................................................................................................... 5
2.21 Mortgage .................................................................................................... 5
2.22 Mortgagee ................................................................................................... 5
2.23 Mortgagor .................................................................................................. 5
2.24 Occupant ..................................................................................................... 5
2.25 Owner ......................................................................................................... 5
2.26 Person ......................................................................................................... 5
2.27 Plat ............................................................................................................. 6
2.28 Property ....................................................................................................... 6
2.29 Rules and Regulations .................................................................................. 6
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3 DESCRIPTION OF PLANNED COMMUNITY ............................................................ 6
3.1 Lots ............................................................................................................. 6
3.2 Lot Legal Description .................................................................................... 6
3.3 Allocated Interests ....................................................................................... 7
3.4 Agricultural Preserve .................................................................................... 7
4 COMMON ELEMENTS ............................................................................................ 7
4.1 Use and Enjoyment of Common Elements ...................................................... 7
4.2 Association Regulation of Use of Common Elements ........................................ 8
4.3 Association to Operate and Maintain Common Elements ................................... 8
4.4 No Partition of Common Elements .................................................................. 8
4.5 Owner Liability for Owner or Occupant Damage to Common Elements .............. 8
4.6 Damage or Destruction to Common Elements ................................................. 9
4.7 Condemnation of Common Elements ............................................................. 9
4.8 Title to Common Elements Upon Dissolution of Association ............................... 9
4.9 Mechanic's Liens on Common Elements ........................................................ 9
4.10 Reservation of Excess Capacity in Water System ............................................. 9
5 EASEMENTS ........................................................................................................ 10
5.1 Recorded Easements ................................................................................... 10
5.2 Owner's Easements .................................................................................... 10
5.3 Emergency Access Easement ...................................................................... 10
5.4 Utility Easements ....................................................................................................... 10
5.5 Easements for Incidental Encroachments ................................................................. 11
5.6 Maintenance Easement ............................................................................................... 11
5.7 Drainage Easement ..................................................................................... 11
5.8 Construction Easement ............................................................................... 11
5.9 Easements Deemed Created ....................................................................... 11
6 THE ASSOCIATION ............................................................................................. 11
6.1 Association ................................................................................................ 11
6.2 Association Executive Board ......................................................................... 12
6.3 Membership ................................................................................................ 12
6.4 Required Compliance ................................................................................... 12
6.5 Voting Rights of Members ........................................................................... 12
6.6 Authority ................................................................................................... 12
6.7 Powers ........................................................................................................................ 12
6.8 Obligations ............................................................................................................... 12
6.9 Water System .......................................................................................................... 13
6.10 Well Monitoring ........................................................................................... 13
6.11 Limited Liability ............................................................................................ 13
6.12 Declarant Control ....................................................................................... 13
7 ASSESSMENTS ................................................................................................... 13
7.1 Assessments ............................................................................................... 13
7.2 Annual Assessments ................................................................................... 13
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7.3 Apportionment of Assessments ................................................................... 13
7.4 Special Assessments ................................................................................... 14
7.5 Default Assessments ................................................................................... 14
7.6 Payment of Assessments ............................................................................. 14
7.7 Creation of Association Lien and Personal Obligation to Pay Assessments ....... 14
7.8 Effect of Non-Payment of Assessments .......................................................... 15
7.9 Open Space and Wildlife Conservation Fund ................................................. 15
7.10 Working Fund ............................................................................................ 15
8 PROPERTY USE RESTRICTIONS .......................................................................... 16
8.1 General Restriction ...................................................................................... 16
8.2 Limited Business Activities ............................................................................ 16
8.3 Construction and Alteration of Improvements ................................................. 16
8.4 Compliance With Laws ................................................................................. 16
8.5 Nuisance ................................................................................................... 16
8.6 No Hazardous or Unsafe Activities ............................................................... 16
8.7 Prohibition of Increases in Insurable Risks .................................................... 16
8.8 Prohibition against Damage or Waste ............................................................ 17
8.9 Vehicles ...................................................................................................... 17
8.10 Obstructions ............................................................................................... 17
8.11 No Firearms or Hunting .............................................................................. 17
8.12 Service Facilities ......................................................................................... 17
8.13 Maintenance of Landscaping ........................................................................ 17
8.14 Natural Vegetation Preservation ................................................................... 17
8.15 Animals and Pets ....................................................................................... 18
8.16 Signs .......................................................................................................... 19
8.17 Solid Waste ................................................................................................................ 19
8.18 Outside Burning ......................................................................................................... 19
8.19 Dust Control ................................................................................................................ 19
8.20 Noise ........................................................................................................................... 20
8.21 Odor ............................................................................................................................ 20
8.22 Lighting ...................................................................................................................... 20
8.23 Wells ........................................................................................................................... 20
8.24 Minerals ...................................................................................................................... 20
8.25 Excavation or Fill ........................................................................................................ 20
8.26 Drainage and Erosion Control ................................................................................... 20
8.27 Vegetation and Noxious Weed Control and Management ..................................... 20
8.28 Wildlife Protection Restrictions .................................................................................. 21
8.29 Geotechnical Restrictions ......................................................................................... 22
8.30 Wildfire Prevention ..................................................................................................... 23
8.31 Requirement for Pressure Reducer Valves ............................................................ 23
9 DEVELOPMENT REVIEW ..................................................................................... 24
9.1 Development Guidelines .............................................................................. 24
9.2 Development Review Committee .................................................................. 24
9.3 Meetings and Action of Development Review Committee ................................. 24
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9.4 Pre-submission Conference ..................................................................................... 24
9.5 Development Review ............................................................................................... 24
9.6 Development Review Expenses .............................................................................. 25
9.7 Decision of Committee .............................................................................................. 25
9.8 Prosecution and Completion of Work After Approval.............................................. 25
9.9 Limitation of Liability .................................................................................................. 26
10 CONSTRUCTION AND ALTERATION OF IMPROVEMENTS ................................... 26
10.1 General ....................................................................................................................... 26
10.2 Approval Required ................................................................................................... 26
10.3 Underground Utility Lines ........................................................................................ 26
10.4 Size Restrictions of Dwellings ................................................................................... 27
10.5 Specific Requirements for Dwellings ....................................................................... 27
10.6 Fireplaces and Stoves ............................................................................................... 27
10.7 Fences and Hedges .................................................................................................. 27
10.8 Landscaping .............................................................................................................. 27
10.9 Removal of Nonconforming Improvements ............................................................ 28
10.10 Fire Protection District Recommendation ................................................................ 28
11 MAINTENANCE .................................................................................................... 28
11.1 Owner's Maintenance Responsibility ....................................................................... 28
11.2 Owner's Negligence .................................................................................................. 28
11.3 Association's Maintenance Responsibility ............................................................... 28
12 INSURANCE ............................................................................................................................................ 29
12.1 Owner's Insurance Responsibility ........................................................................................... 29
12.2 Association's Insurance Responsibility ................................................................................... 29
12.3 Coverage .................................................................................................................................... 29
12.4 Required Provisions................................................................................................................... 29
12.5 Adjustment of Claims ................................................................................................................ 29
12.6 Copies of Policies ....................................................................................................................... 30
13 RESERVATION OF DEVELOPMENT RIGHTS ........................................................................... 30
13.1 Development and Withdrawal Rights ..................................................................................... 30
13.2 Construction Easement ............................................................................................................. 30
13.3 Reciprocal Easements .............................................................................................................. 30
13.4 Termination of Development Rights ........................................................................................ 31
13.5 Interference with Development Rights ................................................................................... 31
13.6 Transfer of Development Rights .............................................................................................. 31
14 SPECIAL DECLARANT RIGHTS ............................................................................. 31
14.1 Special Declarant Rights ............................................................................. 31
14.2 Additional Reserved Rights .......................................................................... 32
14.3 Limitations on Special Declarant Rights and Additional Reserved Rights ........... 32
14.4 Interference with Special Declarant Rights ..................................................... 33
14.5 Rights Transferable ...................................................................................... 33
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14.6 Declarant Control of Association ....................................................................... 33
14.7 Election by Owners ..................................................................................................................... 33
15 MORTGAGEE PROTECTIONS ............................................................................... 34
15.1 Introduction ................................................................................................. 34
15.2 Percentage of First Mortgagees .................................................................... 34
15.3 Notice of Actions .......................................................................................... 34
15.4 Consent Required ........................................................................................ 34
15.5 Notice of Objection ....................................................................................... 35
15.6 First Mortgagees' Rights ............................................................................. 34
15.7 Limitations on First Mortgagee's Rights .......................................................... 35
15.8 Special Declarant Rights ............................................................................. 35
16 ENFORCEMENT OF DECLARATION .................................................................... 35
16.1 Violation Deemed a Nuisance ..................................................................... 35
16.2 Compliance ................................................................................................ 35
16.3 Who May Enforce ...................................................................................... 35
16.4 Enforcement .............................................................................................. 36
16.5 Nonliability .................................................................................................. 36
16.6 Recovery of Costs ....................................................................................... 36
17 MISCELLANEOUS PROVISIONS ........................................................................... 36
17.1 Severability ............................................................................................. 36
17.2 Construction ........................................................................................... 36
17.3 Third Party Beneficiary ........................................................................... 36
17.4 Condemnation ........................................................................................ 36
17.5 Headings ................................................................................................ 36
17.6 Conflicts in Legal Documents ................................................................. 36
17.7 No Public Use Dedication ....................................................................... 37
17.8 Notices ................................................................................................... 37
17.9 Waiver or Delay in Enforcement ........................................................... 37
17.10 Choice of Law and Jurisdiction ............................................................... 37
18 DURATION OF COVENANTS AMENDMENT AND TERMINATION ........................... 37
18.1 Term ....................................................................................................... 37
18.2 Amendment of Declaration ..................................................................... 37
18.3 Execution of Amendments: Expenses .................................................... 38
18.4 When Modifications Permitted ................................................................ 38
18.5 Recording of Amendments ..................................................................... 38
18.6 Termination of the Planned Community ................................................. 38
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AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR LAKE SPRINGS RANCH PUD
THIS AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR Lake Springs Ranch PUD, to be effective
upon its recordation, is made by The Berkeley Family LLLP, a Colorado Limited Liability
Limited Partnership ("Declarant") as the owner of certain real property located in the
County of Garfield, Colorado, (the "Property") and more particularly described on Exhibit
"A" annexed hereto and incorporated herein by this reference.
1. STATEMENT OF PURPOSE AND IMPOSITION OF COVENANTS
1.1 Amended and Restated. This Declaration is intended to amend and restate the
Declaration of Covenants, Conditions, Restrictions and Easements for Lake Springs
Ranch PUD, Filing 1 recorded in the office of the Clerk and Recorder on December 8,
2004 in Book 1645 at Bake 315 at Reception No. 664631 and hereby replaces and
supersedes such document in its entirety.
1.2 Purpose. The purpose of this Declaration is to create a common interest community
for the Property, to be known as Lake Springs Ranch PUD (the "Planned Community") by
submitting the Property to the provisions of the Colorado Common Interest Ownership Act,
C.R.S. § 38-33.3-101, et seq., as amended from time to time (the "Act").
1.3 Declarant's Intent. Declarant intends to preserve and protect the value, desirability and
attractiveness of the Property, to restrain and minimize future impairment or deterioration of
the Property and to promote and safeguard the health, comfort, enjoyment, safety,
convenience and welfare of persons acquiring an interest in the Pr operty.
1.4 Declaration. Declarant hereby submits the Property, including all improvements,
appurtenances and facilities relating to or located on the Property now and in the future, as a
Planned Community under the Act, and hereby declares, makes, imposes and establishes the
following covenants, conditions, restrictions, reservations, easements and other provisions
(collectively the "Declaration"), upon all of the Property, which from this day forward shall be
held, sold, conveyed, encumbered, leased, rented, occupied and improved, subject to this
Declaration.
1.5 Covenants to Run with the Land. All provisions of this Declaration shall be covenants
running with the land, or as equitable servitudes, as the case may be. The benefits, burdens
and other provisions contained in this Declaration shall be binding upon and inure to the benefit
of all persons or entities having any right, title, or interest in all or any part of the Property, including
Declarant, all Owners and their respective heirs, executors, administrators, personal
representatives, successors, assigns, families, tenants, guests, employees, contractors, agents,
licensees and invitees.
1.6 Association. Declarant has created the Lake Springs Ranch Owners Association, a
Colorado nonprofit corporation, its successors and assigns (the "Association") to manage the
affairs of the Planned Community. The Association shall serve as the governing body of the
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Owners, shall hold title to that portion of the real estate within the Planned Community not
located within Lots, shall protect, improve, repair, administer, operate, maintain and preserve the
Common Elements, shall administer and enforce this Declaration, including, without limitation,
collecting and disbursing the assessments and charges created under this Declaration.
2 DEFINITIONS
2.1 Definition Reference. The definitions set forth in Section 38-33.3-103 of the Act shall be
used to interpret the provisions of this Declaration. The terms enclosed with quotation marks
which appear throughout this Declaration shall be used as abbreviations for the referenced
item when the item appears elsewhere in this Declaration. All definitions set forth in this
Declaration shall supplement the definitions in the Act and in the event of conflict between the
definitions provided in this Declaration and the Act, the Act shall control.
2.2 Act. "Act" shall mean the Colorado Common Interest Ownership Act as provided in C.R.S.
§ 38-33.3-101, et seq., as the same may be amended from time to time.
2.3 Articles of Incorporation. "Articles of Incorporation" or "Articles" means the Articles of
Incorporation of Lake Springs Ranch Owners Association, filed in the office of the Secretary of
State of the State of Colorado on May 3, 2001, and as the same may be amended from time
to time.
2.4 Assessment. "Assessment" means an Annual Assessment, Special Assessment or
Default Assessment, all of which shall be a Common Expense Liability as defined by the Act.
2.5 Association. "Association" means the Lake Springs Ranch Owners Association, a
Colorado nonprofit corporation, its successors and assigns.
2.6 Building Envelope. "Building Envelope" means that portion of each Lot which is
depicted and designated as the Building Envelope on a Plat. All structural Improvements shall
be located within the Building Envelope on a Lot, except that driveways, walks, pathways, other
similar features, fences, underground utilities, irrigation and drainage systems, and
landscaping may be located outside the Building Envelope.
2.7 Bylaws. "Bylaws" means the Bylaws of the Association adopted by the Executive Board
of the Association, as the same may be amended from time to time.
2.8 Common Elements. "Common Elements" means all portions of the real estate in the
Property owned by the Association other than Lots including all Improvements and amenities
and personal property thereon or associated therewith, which shall be held by the Association
for the use, enjoyment and benefit of the Owners. The Common Elements include, but are not
limited to, (i) all portions of the Property designated in this Declaration, or any Supplemental
Declaration or on a Plat or any Supplemental Plat as Common Elements or open space, (ii) all
easements created or reserved on any Plat or Supplemental Plat, or in this Declaration or in any
Supplemental Declaration, or in any separate agreement, for the use and benefit of the
Association, and (iii) any water rights, ditch rights and/or water production, treatment, storage
and delivery facilities (or interests therein) that may be owned by the Association or which the
Association may be entitled to use.
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2.9 Common Expenses. "Common Expenses" means any expenditures made or
liabilities incurred by or on behalf of the Association, together with any allocations to reserves,
including, but not limited to the following:
2.9.1 Costs of maintenance, management, operation, repair and replacement of
the Common Elements;
2.9.2 Costs of Improvements constructed from time to time by the Association
on the Common Elements;
2.9.3 Costs of maintaining the utility systems owned by the Association and the
costs of making capital repairs and replacements therein;
2.9.4 Costs of management and administration of the Association, including, but
not limited to, compensation paid by the Association to managers,
accountants, attorneys and employees;
2.9.5 Costs of utilities and services (including, but not limited to, treated or
untreated water, electricity, gas, sewer, trash pick-up and disposal and
recycling), which are provided to the Association or the Planned
Community and not individually metered or assessed to Lots, landscaping
maintenance, and other services which generally benefit and enhance the
value and desirability of the Planned Community and which are provided
by or on behalf of the Association;
2.9.6 Insurance premiums on policies maintained by the Association as required
or permitted herein or by the Act;
2.9.7 Reasonable reserves for contingencies, replacements and other proper
purposes as deemed appropriate by the Executive Board to meet
anticipated costs and expenses including, but not limited to, maintenance,
repair and replacement of those capital items owned by the Association
which must be maintained, repaired or replaced on a periodic basis;
2.9.8 Costs of bonding the members of the Executive Board, the officers of the
Association, any professional managing agent or any other Person
handling the funds of the Association;
2.9.9 Taxes paid by the Association;
2.9.10 Unpaid Assessments;
2.9.11 Amounts paid by the Association for discharge of any lien or encumbrance
levied against the Common Elements;
2.9.12 Costs incurred by the Development Review Committee, and by any other
committees that may be established from time to time by the Executive
Board;
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2.9.13 Other expenses reasonably incurred by the Association for any reason
whatsoever in connection with the Common Elements, or the costs of any
other item or service provided or performed by the Association pursuant to
this Declaration, the Articles or Bylaws of the Association, applicable Rules
and Regulations, or the Development Guidelines, or in furtherance of the
purposes of the Association or in the discharge of any duties or powers of
the Association.
2.10 Declarant. "Declarant" means The Berkeley Family LLP a Colorado Limited Liability
Limited Partnership, its successors and assigns. A Person shall be deemed to be a
"successor and assign" of Declarant if specifically designated as such in a duly recorded
instrument but only as to the expressly designated matters contai ned in such an instrument.
2.11 Declaration. "Declaration" means this instrument, together with any supplement or
amendment and any other recorded instrument however denominated, that exercises a
Development Right, executed and recorded by Declarant. The term Declaration includes all
Plats recorded with this Declaration and all amendments and supplements to such Plats
without specific reference thereto.
2.12 Deed of Trust. "Deed of Trust" means a Deed of Trust or a Mortgage.
2.13 Development Guidelines. "Development Guidelines" means the rules, procedures,
standards, guidelines, and requirements promulgated from time to time by the Development
Review Committee and all amendments thereto, governing the review and approval or
disapproval of proposed Improvements within the Planned Community. The Development
Guidelines shall include rules, procedures, standards, guidelines, and requirements that will
attempt to preserve the natural characteristics of each Lot, including trees, vegetation, particularly
the Harrington’s penstemon, and the natural setting surrounding the Lot. The Development
Guidelines include the entire contents of the approved, recorded Lake Springs Ranch Planned
Unit Development PUD Guide, as that document may be amended from time to time.
2.14 Development Review Committee. “Development Review Committee” means the body
created for the purpose of establishing and enforcing criteria for the construction of Improvements
within the Planned Community and is authorized to control all exterior modifications to
Improvements.
2.15 Eligible First Mortgagee. "Eligible First Mortgagee" means a First Mortgagee that has
notified the Association in writing of its name and address and status as a First Mortgagee and
has requested that it receive mortgagee protection notices as provided in this Declaration.
2.16 Executive Board. “Executive Board” means the governing body of the Association.
2.17 First Mortgagee. "First Mortgagee" means a holder of a Mortgage on a Lot which is the
first and most senior on such Lot.
2.18 Improvements. "Improvements" means any improvements, structural or otherwise,
alterations, additions, repairs, excavation, grading, landscaping or other work which in any way
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alter any property within the Planned Community, or the improvements located thereon, from its
natural or improved state existing on the date this Declaration was recorded, including, but not
limited to, dwelling units, buildings, outbuildings, additions, swimming pools, patio covers,
awnings, the painting or other change of any exterior surfaces of any visible structure,
walkways, outdoor sculptures or artwork, sprinkler or irrigation systems, garages, carports,
roads, driveways, parking areas, ponds, ditches, fences, screening walls, retaining walls, stairs,
decks, flag poles, fixtures, landscaping (including the addition, alteration or removal of any tree,
shrub or other vegetation), hedges, windbreaks, plantings, planted trees and shrubs, gardens,
poles, signs, tanks, solar equipment, wind harnessing or other energy generating equipment,
exterior air conditioning, water softener fixtures, utilities, antennae and satellite dishes or
receivers. Once an Improvement has been constructed or accomplished on a property within
the Planned Community, any subsequent alteration of or addition to or removal of that
Improvement shall also constitute an "Improvement" hereunder. "Improvements" do not include
repairs or alterations which do not change exterior colors or exterior appearances.
2.19 Lot. "Lot" means any part of the Property which is designated for separate ownership or
occupancy as a Lot with boundaries described upon a Plat, together with all Improvements
thereon and appurtenances thereto. For purposes of conforming the terms and provisions of
this Declaration to the terms and conditions of the Act, the term "Lot" as used in this Declaration
shall be analogous to the terms "Unit" as that term is defined in the Act.
2.20 Member. "Member" means each Lot Owner including Declarant.
2.21 Mortgage. "Mortgage" means any mortgage, deed of trust or other security instrument,
given voluntarily by the Owner of a Lot, creating a real property security interest in a Lot and duly
recorded in the records of the Clerk and Recorder of Garfield County. The term "Mortgage"
does not mean a statutory, tax or judicial lien. The term "Deed of Trust" when used herein shall
be synonymous with the term "Mortgage."
2.22 Mortgagee. "Mortgagee" means a mortgagee under a Mortgage or a beneficiary under
a Deed of Trust, as the case may be, and the assignees of such Mortgagee.
2.23 Mortgagor. "Mortgagor" means the maker, obligor or grantor of a Mortgage. The term
"Mortgagor" includes a trustor or grantor under a deed of trust.
2.24 Occupant. "Occupant" means any Person who is present within the Planned
Community as a family member, tenant, servant, employee, agent, licensee, guest or invitee of
an Owner.
2.25 Owner. "Owner" means the Person, including Declarant, or, if more than one, all
Persons collectively, who hold fee simple title of record to a Lot, (including contract sellers but
excluding contract buyers) but excluding any Person holding only a Mortgage in a Lot
unless and until such Person has acquired fee simple title to the Lot. The term "Owner"
shall be analogous to the term "Unit Owner", as that term is defined in the Act.
2.26 Person. "Person" means a natural person, a corporation, a partnership, a limited
liability company, an association, a trust, or any other legal entity or any combination
thereof.
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2.27 Plat. "Plat" means the Final Plat of Lake Springs Ranch, Filing 1, as recorded
December 8, 2004, at Reception No. 664629 in the Office of the Clerk and Recorder of
Garfield County, Colorado, as said Final Plat may be amended from time to time and
the Final Plat of the First Amended Lake Springs Ranch PUD, as recorded
________________ at Reception No. ________________ in the Office of the Clerk and
Recorder of Garfield County, Colorado as said Final Plat may be amended from time to
time. By this reference, said Plat is incorporated in this Declaration. Inasmuch as the
Property will be platted and developed in phases, the term "Plat" also means any
supplemental plat recorded by Declarant and all recorded amendments thereto.
2.28 Property. "Property" means the real property described on the attached Exhibit
"A"
2.29 Rules and Regulations. "Rules and Regulations" means written standards
adopted, amended, supplemented, suspended, repealed and otherwise promulgated from
time to time by the Executive Board, as provided by this Declaration for the
management, preservation, safety, control and orderly operation of the Planned
Community in order to effectuate the intent and to enforce the obligations set forth in this
Declaration.
3 DESCRIPTION OF PLANNED COMMUNITY
3.1 Lots. The Property is hereby divided into a maximum of 118 single family Lots,
one multi-family tract containing a maximum of 18 12 multi-family dwelling units and the
balance of the Property shall be allocated to the Common Elements, including an
Agricultural Preserve and other open space as shown on the Preliminary Plan and Final
Plat(s). All Lots shall be developed for residential purposes only in conformance with
this Declaration. Any multi-family Lots may be owned in the form of apartment
ownership or condominium or townhouse ownership. If condominium or townhouse
ownership then upon such development, each separate residence shall constitute a Lot
under this Declaration. Identification numbers and boundaries shall be shown on the
Plat, or Supplemental Plats, depicting each Lot as surveyed.
3.2 Lot Legal Description. Subsequent to the recording of this Declaration and the
Plat, contracts to convey, instruments of conveyance, and all other instruments affecting
title to a Lot shall be in substantially the following form, subject to such changes or other
provisions as may be required by any law, practice or usage:
Lot _________ , Lake Springs Ranch, Filing 1, according to the Plat recorded
December 8, 2004 as Reception No. 664629 and the Declaration of Covenants,
Conditions, Restrictions and Easements for Lake Springs Ranch, Filing 1,
recorded December 8, 2004 as Reception No. 664631 in the office of the Clerk
and Recorder of Garfield County, Colorado.
or
Lot ____, Lake Springs Ranch P.U.D., according to the Plat recorded
_________________, 2011 20__ as Reception No. ______________ and the
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Amended and Restated Declaration of Covenants, Conditions, Restriction and
Easements for Lake Springs Ranch P.U.D., recorded ____________, 2010 2___
at Reception No. __________ in the office of the Clerk and Recorder of Garfield
County, Colorado.
Every instrument of conveyance, Mortgage or other document affecting the title to
a Lot which legally describes the Lot substantially in the manner stated above shall be
construed to include the Lot, all fixtures and improvements contained in such Lot and to
incorporate all rights, powers, duties and liabilities incident to the ownership of a Lot
described in this Declaration.
3.3 Allocated Interests. The Common Expense Liability of each Lot shall be
determined by dividing the total number of Lots which have been described on a Plat
duly recorded as of the date of calculation into 1 and the result then multiplied by the
applicable Common Expenses or Assessment to determine each Lot's share of the
same. The Common Expense Liability for an Affordable Housing Lot may be modified
in accordance with Section 7.3.
3.4 Agricultural Preserve. The Agricultural Preserve depicted on the Plat, is reserved
to Declarant for agricultural activities and pursuits including the cultivation of agricultural
crops and rearing of livestock for profit. Declarant may continue to use any of the Property
for agricultural purposes, even if not shown on the Plat, until such time as the affected
Lots are sold and/or developed. No Owner shall have any right in or power with respect
to the Agricultural Preserve and such unplatted Property currently being used for
agricultural purposes, the use and enjoyment of which is reserved exclusively to
Declarant. Inasmuch as it is the declared policy of the State of Colorado to conserve,
protect and increase the development and improvement of agricultural lands for the
production of agricultural products, and a portion of the Property will remain in agricultural
production for an indefinite period of time, all Owners are charged with notice that certain
portions of the Property are agricultural lands upon which agricultural operations have
been continuing for more than one (1) year prior to the date of recordation of this
Declaration. In accordance with applicable Colorado law, no such agricultural operations
shall be deemed a private or public nuisance by reasons of development of the Property
or any other changed condition in or about the vicinity of the agricultural operation, except
in the case of (a) the negligent operation of the agricultural use, (b) a change of the
agricultural operation which would result in a private or public nuisance, or (c) upon a
substantial increase in the size of the agricultural operation.
4 COMMON ELEMENTS
4.1 Use and Enjoyment of Common Elements. Except as otherwise provided in this
Declaration, each Owner shall have the non-exclusive right to use and enjoy the
Common Elements in common with all other Owners for all purposes for which such
Common Elements were established, and as required for purposes of access and
ingress to and egress from Owner's Lot or Common Elements available for the Owner's
use. This right to use and enjoy the Common Elements shall extend to each Owner and
Occupant and shall be appurtenant to each Lot, subject at all times to the provisions of this
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Declaration (including Declarant's reserved rights hereunder), the Articles, Bylaws and
Rules and Regulations. No Owner or Occupant shall place any structure upon the Common
Elements, nor shall any Owner or Occupant engage in any activity which will temporarily or
permanently impair free and unobstructed access to all parts of the Common Elements by all
Owners.
4.2 Association Regulation of Use of Common Elements. The Association, acting through
the Executive Board, shall have the right and authority to regulate the use of the Common
Elements by the promulgation, enforcement and interpretation from time to time of such Rules and
Regulations as the Association considers necessary or appropriate for the protection and
preservation of the Common Elements and the enhancement of the use and enjoyment thereof
by the Owners and Occupants. Such Rules and Regulations may include, without limitation,
restrictions on uses of the Common Elements for environmental preservation purposes such as
protection and enhancement of wildlife corridors, winter wildlife ranges and natural wildlife
habitat. The Association, acting through the Executive Board, may suspend the right of any
Member not in good standing to use and enjoy the Common Elements. A "Member Not in Good
Standing" means a Member who is delinquent in the payment of Assessments or is in
violation of the terms and provisions of this Declaration, the Articles, Bylaws, Rules and
Regulations or the terms and provisions of any approvals granted by the Development Review
Committee.
4.3 Association to Operate and Maintain Common Elements. The Association shall operate
and maintain the Common Elements in good condition and shall repair and replace as necessary,
roads, gravel pedestrian trail, the domestic water system, irrigation facilities, drainage
structures and other Improvements on the Common Elements. The Association shall construct,
alter and remove such Improvements and landscaping upon the Common Elements as the
Association in its discretion considers necessary, desirable or appropriate from time to time,
and shall do all such other and further acts which the Executive Board deems necessary or
appropriate to preserve, protect and enhance the Common Elements in accordance with the
general objectives for the Planned Community as reflected in this Declaration. The Association
shall adopt and implement effective control and management of noxious weeds which appear on
the Common Elements.
4.4 No Partition of Common Elements. No Owner or other Person shall have any right to
partition or to seek the partition of the Common Elements or any part thereof.
4.5 Owner Liability for Owner or Occupant Damage to Common Elements. Each Owner shall
be liable to the Association for any damage to Common Elements or for any expense, loss or
liability suffered or incurred by the Association in connection with the Common Elements arising
from (a) the negligence or willful misconduct of such Owner or of any Occupant of such Owner, or
(b) any violation by such Owner or any Occupant of such Owner of any law, regulation, or code,
including without limitation any environmental law, or of any provisions of this Declaration or the
Rules and Regulations relating to the Common Elements. Each Owner shall indemnify, defend
and hold the Association harmless from any loss, damage, expense or liability arising from the
circumstances described in subparts (a) or (b) immediately above. The Association shall have
the power to levy and collect a Default Assessment against an Owner to recover the costs,
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expenses, damages, losses or liabilities incurred by the Association as a consequence of any
such negligence, willful misconduct or violation.
4.6 Damage or Destruction to Common Elements. In the event of damage to or
destruction of the Common Elements, including Improvements thereon, by fire or other
casualty, the Association shall repair or replace the same in accordance with the provisions of
this Declaration.
4.7 Condemnation of Common Elements. If any Common Elements or part thereof or
interest therein is taken under exercise of the power of eminent domain or by purchase in lieu
thereof, the portion of any award in condemnation or the price payable for the deed in lieu that
is attributable to the Common Elements taken or purchased shall be paid to the Association. The
Association shall have the exclusive right to participate in such condemnation proceedings and to
represent the interests of all Owners and other interested Persons therein. Any award or funds
received by the Association shall be held by the Association as a reserve for future
maintenance, repair, reconstruction, or replacement of Common Elements or may be used for
Improvements or additions to or operation of Common Elements or for such other uses as may
be deemed appropriate by the Executive Board. Except as may otherwise be provided by the Act,
no Owner or other Person shall be entitled to participate as a party or otherwise in any
condemnation proceedings nor to receive any proceeds therefrom.
4.8 Title to Common Elements Upon Dissolution of Association. In the event of dissolution
of the Association, the Common Elements shall, to the extent permitted by law and reasonably
possible, be conveyed or transferred to an appropriate public, governmental or quasi
governmental agency or organization or to a nonprofit corporation, association, trust, or other
organization, to be used, in any such event, for the common benefit of Owners for the purposes for
which the Common Elements were held by the Association. If the foregoing is not possible, the
Common Elements shall be sold or disposed of and the proceeds from the sale or disposition
shall be distributed to Owners in proportion to each Owner's allocated interest in the
Common Expenses of the Association.
4.9 Mechanic's Liens on Common Elements. Declarant shall be responsible for the release
of mechanics' liens filed with respect to Common Elements, or any part thereof, if such liens
arise from labor performed or materials furnished at the insistence of Declarant, its agents,
contractors or subcontractors during the Declarant’s control of the Planned Community.
Likewise, the Association shall be responsible for the release of mechanics' liens filed with respect
to Common Elements, or any part thereof, if such liens arise from labor performed or materials
furnished at the insistence of the Association, its directors, officers, agents, contractors or
subcontractors. No labor performed or materials furnished with respect to a Lot at the
insistence of the Owner shall be the basis for filing a lien against the Common Elements and
each Member shall be responsible for the release of any mechanics’ lien filed due to
Member’s nonpayment with respect to the Common Elements. No labor performed or
materials furnished with respect to the Common Elements at the insistence of the Executive Board
shall be the basis for filing a lien against any Lot.
4.10 Reservation of Excess Capacity in Water System. To the maximum extent and duration
permitted by law, Declarant reserves the right to use excess capacity of the water system, water
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and water rights, well and well rights, ditch and ditch rights, pumps, tanks, pipelines and other
equipment, fixtures and water supply facilities necessary for the exercise of any existing or
subsequently decreed water rights or augmentation plans together with any easements necessary
for the utilization of the same and to add to such water system or water rights as Declarant
deems appropriate, to amend or change any water court decree, and to substitute water source
or amount of water in any water right as may be subsequently decreed. The utilization of such
excess capacity shall be limited to the Property, including without limitation agricultural
operations of Declarant.
5. EASEMENTS
5.1 Recorded Easements. The Property shall be subject to all easements shown on the
Plat and to any other easements of record as of the date of the recordation of this Declaration.
5.2 Owner's Easements. Each Owner shall have an easement of enjoyment in the
Common Elements, subject to the limitations set forth in this Declaration, which shall be
appurtenant to and shall pass with the title to each Lot, including the right of access to and
from such Owner's Lot.
5.3 Emergency Access Easement. A general easement is hereby granted to all police,
sheriff, fire protection, ambulance and all other similar emergency agencies or persons to enter
upon the Property in the proper performance of their duties.
5.4 Utility Easements. Declarant reserves to Declarant and hereby grants to the
Association general non-exclusive easements upon, across, over, in and under the Common
Elements and those portions of Lots not contained within a Building Envelope. Such easements
may be used for ingress and egress and for installation, construction, replacement, repair and
maintenance of all utilities, including but not limited to water, sewer, gas, telephone, television and
electrical systems. By virtue of this Easement it shall be expressly permissible and proper for the
companies providing electrical, telephone and other communication services to install and
maintain necessary electrical, communications and telephone wires, circuits, and conduits in
any easement. No utility shall be installed or relocated on the surface of any Lot, except for
necessary surface facilities. Such utilities may be installed temporarily above ground during
construction. Any utility company using this general utility easement shall use its best efforts to
install and maintain the utilities provided for without disturbing the uses of the Owners, the
Association and Declarant; shall pursue its installation and maintenance activities as promptly
and expeditiously as possible; and shall restore the surface to its original condition when
possible after completion of its work. Should any utility company furnishing a service covered
by this general easement request a specific easement by separate recordable document, either
Declarant or the Association shall have, and are hereby given, the right and authority to grant
such easement upon, across, over or under any part of the Property without conflicting with
the terms of this Declaration. This general utility easement shall in no way affect, avoid,
extinguish or modify any other recorded easement on the Property. All service connections to
(including transformers) primary utility lines serving each Lot shall be the responsibility of the
Owner.
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5.5 Easements for Incidental Encroachments. If any portion of an Improvement constructed
within the Common Elements (for example, any portion of a road) encroaches on any Lot,
including any future encroachments arising or resulting from the repair or reconstruction of an
Improvement, a valid easement on the surface and for subsurface support below such surface
and for the maintenance of same, so long as it stands, shall and does exist for such incidental
encroachment.
5.6 Maintenance Easement. A maintenance easement is hereby reserved to Declarant
and granted to the Association upon, across, over, in and under the Property and a right to make
such use of the Property as may be necessary or appropriate to make emergency repairs or to
perform the duties and functions which the Association is obligated or permitted to perform
pursuant to this Declaration or the Act, including the right to enter upon any Lot for the purpose of
performing maintenance or repair of any utility service, including without limitation, any actions in
respect to the water distribution system. Reasonable efforts shall be made to use this
maintenance easement so as to minimize the disturbance of any affected Owner by prosecuting
any necessary work promptly and expeditiously, limiting interference with existing
Improvements; and restoring any affected areas to the condition existing before the work as
soon as possible following such work
5.7 Drainage Easement. A drainage easement is reserved to Declarant and granted to the
Association, its officers, agents, employees, successors and assigns to enter upon, across, over,
in and under any portion of the Property for changing, correcting or otherwise modifying any
existing drainage channels on the Property to protect the historic drainage pattern of water.
5.8 Construction Easement. A construction easement is reserved to Declarant for
construction purposes on the Common Elements including, without limitation, the right of traverse
and storage of materials and equipment, as may be necessary or incidental to the construction
of Improvements on the Property.
5.9 Easements Deemed Created. All conveyances of any part of the Property made after
the date of this Declaration, whether by Declarant or otherwise, shall be construed to grant and
reserve the easements contained in this Article though no specific reference to such
easements or to this Declaration appears in the instrument for such conveyance.
6. THE ASSOCIATION
6.1 Association. The Association has been formed as a Colorado nonprofit corporation under
the Colorado Nonprofit Corporation Act to manage the affairs of the Planned Community. The
Association shall serve as the governing body for all of the Owners for the protection,
improvement, alteration, maintenance, repair, replacement, administration and operation of the
Common Elements, the levying and collection of Assessments for Common Expenses, and such
other matters as may be provided in this Declaration, the Articles, Bylaws, and Rules and
Regulations. The Association shall not be deemed to be conducting a business of any kind, and all
funds received by the Association shall be held and applied by it for the Owners in accordance with
the provisions of this Declaration, the Articles and the Bylaws.
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6.2 Association Executive Board. The affairs of the Association shall be managed by an
Executive Board. The number, term, and qualifications of the members of the Executive Board
shall be fixed in the Articles of Incorporation or the Bylaws.
6.3 Membership. Every Person, by virtue of being an Owner and while such Person is an
Owner, shall be a member of the Association and shall remain a member for the period of the
Owner's ownership of a Lot. Membership shall be appurtenant to and may not be separated from
ownership of any Lot. No Owner, whether one or more Persons shall have more than one
membership per Lot owned, but all of the Persons owning a Lot shall be entitled to rights of
membership and use and enjoyment appurtenant to such ownership. Declarant shall hold a
membership in the Association for each Lot owned by Declarant.
6.4 Required Compliance. The benefits and burdens of membership in the Association
touch and concern the Property and shall be covenants running with each Lot for the benefit of
all other Lots. Each Owner shall adhere to and benefit from the obligations contained in the
Association's Articles, Bylaws, and Rules and Regulations.
6.5 Voting Rights of Members. Each Lot in the Planned Community shall be entitled to one
(1) vote in the Association.
6.6 Authority. The business affairs of the Planned Community shall be managed by the
Executive Board of the Association which shall be governed by the Association's Articles,
Bylaws and this Declaration, as the same may be amended from time to time. The Executive
Board may adopt, amend, supplement, suspend, repeal and otherwise promulgate Rules and
Regulations for the use of the Common Elements, easements, roads and access ways, central
water system, and general management, preservation, safety, control and orderly operation of
the Planned Community.
6.7 Powers. The Association shall have all of the powers, authority and duties necessary
to manage the business and affairs of the Planned Community and the Association, express or
implied, as permitted under applicable law including without limitation, the relevant provisions of
the Act as well as the Colorado Nonprofit Corporation Act, as such laws may be amended
from time to time, subject only to the limitations upon such powers as are contained in this
Declaration. More specifically, and without limiting the generality of the foregoing, the Association
shall have all of the powers and duties necessary (i) for the administration, maintenance,
management, governance and operation of the Planned Community and the Association and
(ii) to own, operate, improve, maintain, repair, manage, lease, encumber, and otherwise
deal with the Common Elements.
6.8 Obligations. The Association shall perform all duties and obligations expressly imposed
upon it by this Declaration, the Act and the Colorado Nonprofit Corporation Act or implied by an
express provision in this Declaration. The Association shall accept title to any real property,
including without limitation, water rights, as well as any Improvements and personal property
thereon including water systems and related facilities transferred to the Association by
Declarant.
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6.9 Water System. The Association shall own, operate and maintain the potable water supply
system for the Planned Community. Water service to each Lot shall be metered by devices
approved by the Association, which devices shall be installed and maintained at the sole cost of
the Owner. The Association shall establish potable water service rate schedules sufficient to
pay all costs and expenses of administering, operating, maintaining, improving and preserving
the central water system including all water rights associated therewith. The Association shall
have the power to charge and collect water service fees from Owners benefitted by such service.
The Association shall adopt, supplement and amend Water Service Rules and Regulations for
the provision of potable water service to Owners, which shall include the power to terminate
water service to any Lot for nonpayment of all service charges. In addition, water service charges
to a Lot shall be a personal obligation of the affected Owner and treated as an Assessment
under the provisions of this Declaration. The Association shall comply with and, with respect to
the Owners, be empowered to enforce all regulations promulgated by the Colorado Department
of Public Health and Environment and any other governmental agency having jurisdiction over
the water supply system, including without limitation, the prevention all of hazardous cross
connections. Each Lot shall be limited to not more than 2,500 square feet of outside lawn and
garden irrigated area.
6.10 Well Monitoring. The Association shall participate with other land owners in the Spring
Valley area in a ground water monitoring program to monitor water levels in the Spring Valley
Aquifer, as described in the Memorandum dated December 6, 2000, authored by Anne Castle
and Chris Thome of Holland & Hart, a copy of which is available at the Association's offices.
6.11 Limited Liability. The Association, the members of the Executive Board, members of the
Development Review Committee and the Association's officers shall not be liable to any Owner
or Occupant or to any other Person for any act or omission except for wanton and willful
acts or omissions.
6.12 Declarant Control. Declarant shall have all the powers reserved in Section 38-33.3-
303(5) of the Act to appoint and remove officers and members of the Executive Board to the full
extent and for the maximum period of time stated in the Act.
7. ASSESSMENTS
7.1 Assessments. The Association shall levy annual, special and default assessments
("Assessments") pursuant to this Declaration for the purpose of payment of Common
Expenses.
7.2 Annual Assessments. The Association shall levy Annual Assessments based upon the
budget of the Association's anticipated cash requirements for Common Expenses of the Planned
Community as required by the Act and this Declaration for the coming fiscal year.
7.3 Apportionment of Assessments. The total annual Assessments for any fiscal year of
the Association shall be determined based on the allocated interests subject to: (a) any
Common Expenses which are separately metered or are assessed to the Lots by third parties, (b)
Common Expenses or portions thereof benefitting fewer than all of the Lots which shall be
assessed exclusively against the Lots benefitted, (c) any increased cost of insurance based upon
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risk which shall be assessed to Lots in proportion to the risk, and (d) any Common Expense
caused by the misconduct of any Owner, which may be assessed exclusively (or on such other
equitable basis as the Executive Board shall determine) against such Owner. All such allocations
of Common Expense Liability to Lots allocated interests shall be made in writing by the
Executive Board. Assessments for affordable housing units shall be prorated as compared
to assessments owed by market rate Lot Owners. Assessments for affordable housing
units shall be prorated by either average lot size or average unit size in comparison to
market rate lots and/or units, whichever results in the lower cost for the affordable units,
or by a formula proposed by the applicant and approved by the Garfield County Housing
Authority and the Garfield County Board of County Commissioners. If a prorated
assessment is not possible, then the assessments for affordable housing units shall be
a maximum of 75 percent of the assessments owed by market rate unit owners.
7.4 Special Assessments. In addition to the annual Assessments authorized above, the
Executive Board may, at any time and from time to time, levy and assess in any fiscal year a
special Assessment for the purpose of defraying, in whole or in part, unbudgeted costs, fees
and expenses of any construction, reconstruction, repair, removal, replacement, renovation or
other maintenance of the Common Elements in the Planned Community. Amounts levied and
assessed pursuant to this Section shall be assessed to the Lots in the proportions set forth
above.
7.5 Default Assessments. All costs of enforcement of this Declaration which costs are incurred
with respect to an Owner or any other expense of the Association which is the obligation of an
Owner pursuant to this Declaration shall become a default Assessment assessed against the
Owner's Lot. Notice of the amount and demand for payment of such default Assessment shall be
sent in writing to the Owner prior to enforcing any remedies for nonpayment hereunder.
7.6 Payment of Assessments. Until the Association makes an Assessment for Common
Expenses, Declarant shall pay all Common Expenses. After an Assessment has been made
by the Association and unless otherwise determined by the Executive Board, Annual
Assessments shall be payable in monthly installments equal to 1/12 of the then current
Assessment, without notice and shall be due on the first day of each month at the office of the
Association. Default Assessments shall be due in full ten (10) days after notice is given to the
Owner of the amount owed.
7.7 Creation of Association Lien and Personal Obligation to Pay Assessments.
Declarant, for each Lot, hereby covenants, and each Owner of any Lot, by acceptance
of a deed therefor, whether or not it shall be so expressed in any such deed, are
deemed to covenant and agree to pay to the Association Assessments applicable to the
Lot. Such Assessments, as well as any fees, charges, late charges, attorney fees, fines
and interest charged by the Association shall be the personal obligation of the Owner as
of the time when the Assessment or other charges became or fell due. Two or more
Owners of a Lot shall be jointly and severally liable for such obligations. The personal
obligation to pay any past due sums due the Association shall not pass to a successor
in title unless expressly assumed by the successor. By acceptance of the deed or other
instrument of transfer of a Lot, each Owner irrevocably waives the homestead
exemption provided by C.R.S. 38-41-201 et seq., as amended. Each Assessment shall
15
be a continuing lien upon the Lot against which such Assessment is made, with or
without the actual recording of a lien. A lien under this Section is prior to all other liens
and encumbrances on a Lot except: (a) liens and encumbrances recorded before the
recordation of this Declaration; (b) a security interest on the Lot which has priority over
all other security interests on the Lot and which was recorded before the date on which
the Assessment sought to be enforced became delinquent; and (c) liens for real estate
taxes and other governmental assessments or charges against the Lot. This Section
shall not prohibit any civil action to recover sums for which this Section creates a lien or
prohibit the Association from taking a deed in lieu of foreclosure. Sale or transfer of a
Lot shall not affect the Association's lien thereon, except that sale or transfer of a Lot
pursuant to foreclosure of any first lien security interest, or any proceeding in lieu
thereof, including deed in lieu of foreclosure, or cancellation or forfeiture shall only
extinguish the Association's lien as provided in the Act. No such sale, transfer,
foreclosure, nor cancellation or forfeiture shall relieve a Lot from continuing liability for
any Assessments thereafter becoming due, nor from the lien thereof.
7.8 Effect of Non-Payment of Assessments. If any installment of an Assessment is
not be paid within ten (10) days after it becomes due and payable, the Executive Board
may assess a late charge of up to five percent (5%) of each past due installment,
default interest (not to exceed the rate allowed by the Act) or such other charges as the
Executive Board may fix by rule from time to time to defray extra expenses incurred in
handling a delinquent Assessment installment. Further, the Association may bring an
action at law or in equity, or both, against any Owner personally obligated to pay such
overdue assessments, charges or fees, or monthly or other installments thereof, and
may also proceed to foreclose its lien against such Owner's Lot. An action at law or in
equity by the Association against an Owner to recover a money judgment for unpaid
assessments, charges or fees, or monthly or other installments thereof, may be
commenced and pursued by the Association without foreclosing, or in any way waiving,
the Association's lien.
7.9 Open Space and Wildlife Conservation Fund. Included in the Annual
Assessments to be made beginning with the first Owner of each Lot (other than
Declarant), an Open Space and Wildlife Conservation fee shall be assessed. The initial
fee shall be $5.00 per month per Lot. Such fee shall be subject to increase on annual
basis based on the increase in the consumer price index. The Open Space and Wildlife
Conservation Fund shall be deposited in a separate interest-bearing account and
administered by the Executive Board. The Open Space and Wildlife Conservation Fund
shall be used solely for the conservation, preservation and enhancement of wildlife
habitat on the Property and in the general vicinity of the Property which could include
planting native vegetation species around ponds, improving wildlife migration corridors
and enhancing open space areas for wildlife on the Property or in the Spring Valley area
in consultation with the Colorado Division of Parks and Wildlife and other available
consultants.
7.10 Working Fund. The Association or Declarant shall require the first Owner of each Lot
(other than Declarant) to make a nonrefundable payment to the Association in an amount equal
to $100.00, which sum shall be held, without interest, by the Association as a "working fund.”
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The working fund shall be collected and transferred to the Association at the time of closing
of each sale by Declarant of each Lot. The working fund may be used from time to time by the
Executive Board for any Association purpose and thereafter replenished by inclusion in the
next annual Assessment. Such payment shall not be considered an advance payment of
annual Assessments and shall not relieve an Owner from making regular payments of the
Assessments when due.
8. PROPERTY USE RESTRICTIONS
8.1 General Restriction. Except for the Agricultural Preserve, the Planned Community shall be
used only for the private residential dwelling purposes in conformance with this Declaration and
subject to the applicable rules and regulations of all governmental authorities having
jurisdiction. The Agricultural Preserve may be used for any agricultural activity allowed under
applicable governmental laws, rules and r egulations.
8.2 Limited Business Activities. Subject to all applicable governmental regulations, and in
addition to residential purposes, in-home business activities or occupations not involving the
provision of on site services for customers or use of employees on site (other than Owners) shall
be allowed, provided such activities: (i) are conducted solely within the Lot, (ii) do not materially
increase motor vehicle traffic on the Property, (iii) do not create any external indication of an in-
home business, and (iv) do not generate any noise, smoke, dust, odors, heat or other offensive
or noxious emanations on the Property. Notwithstanding the foregoing, business activities
associated with the sale of Lots shall be allowed.
8.3 Construction and Alteration of Improvements. No Improvements in the Planned
Community shall be erected, placed, reconstructed, replaced, repaired or otherwise altered, nor
shall any construction, repair or reconstruction be commenced until plans for such
Improvement shall have been approved by the Association through the Development Review
Committee as provided in this Declaration.
8.4 Compliance With Laws. Subject to the rights of reasonable contest, each Owner shall
promptly comply with the provisions of all applicable laws, regulations and ordinances with
respect to the Property including, without limitation, all applicable environmental laws and
regulations.
8.5 Nuisance. No obnoxious or offensive activity shall be carried on within the Property,
and nothing shall be done or permitted which shall constitute a private or public nuisance.
8.6 No Hazardous or Unsafe Activities. No activity shall be conducted on the Property,
and no Improvement shall be constructed on any Lot which is or may be unsafe or hazardous
to any Person or property.
8.7 Prohibition of Increases in Insurable Risks. Nothing shall be done or kept on the Property
or on any Lot which would result in the cancellation or reduction of insurance on all or any
part of the Property or in an increase in the cost of such insurance, but for such activity, without
the prior written approval of the Association.
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8.8 Prohibition against Damage or Waste. No damage to or waste of the Property including
any portion of the Common Elements shall be committed by any Owner or Occupant. Each
Owner hereby agrees to indemnify and hold the Association and the other Owners harmless
against any damage or waste caused by such Owner and agrees to pay for or reimburse the
Association for any and all costs and expenses resulting from any damage or waste caused by
an Owner, Occupants or pets.
8.9 Vehicles. Not more than four (4) motor vehicles may be kept on each Lot. Each vehicle
shall be registered with the Association by type, year, color, license number and such other
identification as is appropriate. No commercial vehicles, trucks, trail bikes, recreational
vehicles, motor homes, motor coaches, snowmobiles, campers, trailers, boats or boat trailers,
or similar vehicles (other than passenger automobiles or pickup or utility trucks with a capacity
of one ton or less) or any other vehicles shall be parked, stored, or in any manner kept or placed
on any portion of the Property which vehicles are visible from a street or any other Lot except for
vehicles which are kept in an enclosed garage or screened enclosure. This restriction, however,
shall not be deemed to prohibit occasional parking of vehicles on driveways or commercial and
construction vehicles, in the ordinary course of business, from making deliveries or otherwise
providing service to the Property or for approved construction by Declarant or Owners. No
trail bikes, four wheelers, snowmobiles, other similar recreational vehicles, automobiles,
pickups, utility trucks or any other vehicles shall be operated on any portion of the Property
except for travel to and from a Lot to another location in a nonrepetitive fashion.
8.10 Obstructions. No person shall obstruct or interfere with the free use of any easement,
roadway, walkway, drainage structure, utility, the common water system or other Common
Elements, except as may be reasonably required for repairs and maintenance. The Association
shall promptly take such action as may be necessary to abate or enjoin any interference with or
obstruction of any easement or Common Element. The Association shall have a right of entry
on any part of the Property for the purposes of enforcing this Section. Any costs incurred by the
Association in connection with such enforcement shall be assessed to the persons responsible for
the interference.
8.11 No Firearms or Hunting. Except for animal control measures, the discharge of firearms
on any part of the Planned Community is expressly prohibited. Hunting on any part of the
Planned Community (including Lots) is expressly prohibited.
8.12 Service Facilities. All clothes lines, storage tanks, equipment, service yards and similar
service facilities shall be screened by adequate plantings or fencing so as to conceal same from
other Lots and streets and roads.
8.13 Maintenance of Landscaping. Each Owner shall keep the landscaping situate on such
Owner's Lot in a neat and well maintained fashion, shall properly irrigate the lawns and other
planting on such Lot and shall otherwise maintain the appearance of such Lot in a first class
condition.
8.14 Natural Vegetation Preservation. All Improvements within the Planned Community shall
be located, designed, and constructed so as to preserve and protect trees, plants and natural
shrubs, including Harrington’s penstemon which is on the Garfield County endangered plant list.
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In order to conserve the natural beauty of the area, no existing trees, plants or natural shrubs (e.g.,
cedar, pinon or gamble oak) may be removed or trimmed except with the prior written approval of
the Development Review Committee. This restriction shall not apply to essential clearing of a Lot
in connection with the construction of a residence (but not other Improvements) within the Building
Envelope within a Lot, provided the prior written approval of the Development Review Committee
has been obtained. Any violation of this Section shall subject the offending Owner to such
penalties, fines and/or other conditions as the Development Review Committee considers
appropriate, including without limitation the withdrawal or modification of previously granted
development approvals, or the requirement that replacement trees, plants or shrubs of equivalent
or different size and type be planted and maintained by the Owner. Any construction,
reconstruction or additions of an Improvement, or modification of a Building Envelope, shall be
conditioned upon identifying the existence of Harrington’s penstemon and any other endangered
vegetation. Owners shall be required to receive a statement of compliance with this section from
the Development Review Committee prior to any construction of Improvements.
8.15 Animals and Pets. No animal, livestock or poultry of any kind shall be kept, raised or bred
on any Lot, except that not more than (2) dogs and two (2) cats, and other typical small
household pets, such as birds and fish, shall be allowed. The Association shall be
empowered to adopt animal control rules and regulations. Nothing contained in this Declaration
or in any adopted rules and regulations shall limit the power of the Association with respect to
animal control including the right to determine that a particular animal is a nuisance and the
right to require its removal from the Planned Community. The following special requirements
shall apply to any dog permitted on any Lot:
8.15.1 Each dog shall be kept under the control of the Owner and on a leash at
all times when outside a fenced area or structure and shall not be
permitted to run free or to cause a nuisance on the Property. Pets
shall be fed inside an Improvement at all times.
8.15.2 No dog shall be allowed to bark excessively, which is defined as barking
more or less continuously during any fifteen (15) minute period not
including any momentary cessations.
8.15.3 Each dog shall be leashed, kept in a humane kennel or run at all times
or adequately restrained by an electronic barrier device. Metal chain
link fencing will be allowed for the purposes of kenneling a dog. The
location and style of each kennel or run shall be subject to review by the
Development Review Committee and shall not be in a location that any
Harrington’s penstemon has been mapped. If the penstemon has been
found, the location of the kennel or run shall be altered in order to avoid
the penstemon. A kennel or run shall be installed prior to issuance of a
Certificate of Occupancy for any Lot if the Owner possesses a dog at
such time and, in any event, prior to the introduction of a dog on any Lot.
8.15.4 All Owners shall keep dogs reasonably clean and free of disease and
each Lot shall be kept free of animal waste.
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8.15.5 Should any dog chase or molest deer, elk, poultry or any domestic
animals or persons, or destroy or disturb property of another, the
Association may prohibit the Owner from continuing to keep the
offending dog on such Owner's Lot. If necessary, to protect wildlife or
other Owners' domestic animals, persons or property, the Association
may take additional steps, including the destruction of the offending dog.
Except in an emergency or as provided by law, the owner of an offending
dog shall be provided written notice of such action at least five (5) days
before disposal occurs. Such notice shall be posted on the front door of
the residence of the Owner of the offending dog. Within such five (5) day
period, the offending dog may be kenneled at a licensed kennel with all
costs incurred by the Association assessed against the Owner.
8.15.6 The Association shall assess and enforce penalties against Owners
violating the restrictions applying to dogs as follows: One Hundred Dollars
($100.00) for the first violation. The fine shall be increased by One
Hundred Dollars ($100.00) for each succeeding violation. In addition, the
Association may impose fees for dog registration or other dog control
services, impose regulations regarding the keeping of dogs on any Lot,
and levy fines against Owners who violate this covenant or any of the
regulations promulgated hereunder or subsequently by the Association.
The schedule of fees and fines established shall be sufficient to recover
all of the costs of this animal control program on an annualized basis.
8.16 Signs. No signs of any kind shall be displayed to the public view on or from any portion
of the Property except those signs approved by the Executive Board, ordinary real estate
signs, business signs of Declarant or its affiliates, or signs required or allowed by law.
8.17 Solid Waste. No trash, ashes, garbage, rubbish, debris or other refuse shall be thrown,
dumped or otherwise accumulated on the Property. There shall be no burning of refuse. Each
Owner shall use the central receptacles for the temporary storage and collection of solid waste,
which shall be screened from public view and protected from wind, animals and other
disturbances. Each Lot shall be kept in a sanitary condition, free of offensive odors, rodent and
insect infestations at the Owner's sole cost. Composting is restricted to yard waste (i.e.,
leaves and grass clippings). Food waste shall be prohibited within the compost.
8.18 Outside Burning. There shall be no exterior fires, except for barbecues, outside
fireplaces and braziers. No Owner shall allow any condition upon such Owner's Lot which
creates a fire hazard or violates fire prevention regulations.
8.19 Dust Control. The Association shall control dust on the private roads in the Planned
Community. Owners shall be responsible for ongoing dust control of their private driveways. All
roads and driveways within the Planned Community shall be monitored by the Association to
achieve minimal dust pollution. Roads and driveways shall be treated as necessary with
magnesium chloride or other dust suppressants approved by the Garfield County Environmental
Health Department. The Association shall have the right to treat private driveways and charge
the responsible Owner, if the Owner fails to fulfill Owner's responsibility for individual dust
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control.
8.20 Noise. No exterior horns, whistles, bells or other sound devices, except security devices
approved in writing by the Executive Board, shall be placed or used on any portion of the Property.
Owners shall not allow any noise or disturbance on their respective Lots which is offensive,
disturbing or otherwise detrimental to any other person.
8.21 Odor. No odor shall be emitted from any Lot which is noxious or unreasonably
offensive to others.
8.22 Lighting. All exterior lighting installed or maintained on any Lot shall be placed so that the
light source is screened or shielded from the residence on any other Lot. No light shall be emitted
from any Lot which is unreasonably bright or causes unreasonable glare. Without limiting the
generality of the foregoing, no spotlights, floodlights or other high-intensity lights shall be
permitted within the Planned Community without the prior written approval of the
Development Review Committee. The Development Guidelines may contain standards for
exterior lighting including, without limi tation, standards for hue and intensity.
8.23 Wells. No well from which water, oil, or gas is produced shall be dug, nor shall storage
tanks, reservoirs, or any installation of power, telephone, or other utility lines (wires, pipe, or
conduit) be made or operated anywhere on the Property except in connection with water wells
and works installed by Declarant or the Association.
8.24 Minerals. No portion of the Property shall be used for the exploration, extraction or storage
of oil, gas, minerals, sand, gravel, rock, earth or other materials.
8.25 Excavation or Fill. No excavation or fill shall be made except in connection with
Improvements approved as provided in this Declaration. For purposes of this Section,
"excavation" shall mean any disturbance of the surface of the land (except to the extent
reasonably necessary for approved landscape planting) which results in a removal of earth, rock or
other substance a depth of more than 18 inches below the natural surface of the land. For the
purposes of this Section, "fill" shall mean any importation and placement of earth, rock or other
substance a height of more than eighteen inches (18") above the natural surface of the
land.
8.26 Drainage and Erosion Control. No Owner shall do or permit any work, construct any
Improvements, place any landscaping or suffer the existence of any condition whatsoever which
shall alter or interfere with the drainage pattern for the Property, or cause any discharge onto
any adjacent property, except to the extent such alteration and drainage pattern is approved in
writing by the Association and any other affected Owner. The surface of the Property,
including all Lots, shall be maintained in a condition which will minimize the risk of soil erosion.
8.27 Vegetation and Noxious Weed Control and Management. The Association and each
Owner shall implement and follow a long term program for noxious weed control of any plant
species included on the Garfield County Noxious Weed List, as the same may be revised from
time to time. Assistance in the development and implementation of a weed management
program will by sought through the Colorado State University Cooperative Extension Service
and from the Garfield County Office of Vegetation Management. Initially the Association shall
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implement and follow the Vegetation Management Plan on file in the Garfield County Planning
Department with the Subdivision Application for the Planned Community. The weed control and
vegetation management plan shall include the following components:
8.27.1 Prevention and Control. The quick revegetation of disturbed areas with
weed free grass seed and the maintenance of native or introduced
vegetation in a healthy, vigorous condition producing optimum v egetative
densities leaving noxious w eeds little opportunity to establish.
8.27.2 Inventory. Each Lot shall be inspected to identify any infestations of
noxious weeds. An accurate record shall be kept of the application and
success of weed infestation eradication efforts.
8.27.3 Eradication. Elimination of noxious weeds by:
8.27.3.1 Mechanical Controls to physically remove the entire weed plant
or eliminate the plant's ability to produce seed;
8.27.3.2 Biological Controls relying on organisms (insects or plant
pathogens) to interfere with weed growth; and
8.27.3.3 Chemical Controls using herbicides to eliminate weeds with
special care used to avoid damage to desirable plant species
and to avoid contamination of ground water.
8.27.4 Owner Responsibility. Each Owner shall implement a weed
management program within the Owner's Lot and adhere to the
Colorado Noxious Weed Act (C.R.S. § 35-5-102) and the Garfield
County Weed Management Plan to manage any noxious weeds. In the
event an Owner fails to effectively control noxious weeds on a Lot, the
Association shall have the right to enter upon any Lot and conduct a
weed control program within the area of such Lot.
8.28 Wildlife Protection Restrictions. In order to preserve, protect and promote the well being of
existing wildlife as well as enhance wildlife habitat on the Property:
8.28.1 No tree or vegetation removal shall be permitted within the Common
Elements except as may be necessary, in the determination of the
Association, to remove a dangerous condition or to control an invasive
species. No fruit bearing trees or shrubs shall be planted within the
Planned Community. Native vegetation shall be preserved to the
maximum extent possible.
8.28.2 The pet and animal restrictions set forth herein shall be rigorously
enforced.
8.28.3 No Owner or Occupant shall accumulate or store trash or garbage on a
Lot outside of a residential structure unless such trash or garbage is
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contained within a container certified as bear-proof by the North American
Bear Society, the National Park Service or Colorado Division ofParks and
Wildlife; provided, however, that Owners may use trash or garbage
containers which do not meet the certifications above described so
long as:
8.28.3.1 The containers are placed outside no earlier than one (1) hour
prior to the regularly scheduled time for trash collection by a
waste disposal service provider; and
8.28.3.2 The containers are returned to the interior of the residential
structure no later than one (1) hour after trash collection by the
waste disposal service provider.
8.28.4 No Owner or Occupant shall feed, bait, salt or utilize any other means
or artifice to attract wildlife to a Lot or the Property. This limitation shall not
apply to bird feeders or bird houses which may be located and utilized
within the Property.
8.28.5 The Association and Owners may restrict wildlife from landscaping and
other isolated sensitive areas by using temporary fencing and other passive
means which will not unreasonably restrict the general movement of
wildlife within the Property.
8.28.6 No Owner or Occupant may chase, scare, disturb, haze, worry or use any
other form of harassment to drive or coerce big game (such as deer and elk)
off of the Common Elements.
8.28.7 The Association and all Owners hereby waive, release and shall hold the
Colorado Division ofParks and Wildlife harmless from, any and all claims
for damages to landscaping improvements or ornamental plants located
on the Lots or Common Elements resulting from the activities of big game
such as deer and elk.
8.28.8 The Association and any affected Owner shall be responsible for the
removal and proper disposal of all large animal carcasses found upon the
Common Elements or Lots, as may be appropriate.
8.29 Geotechnical Restrictions. Site specific studies shall be conducted for individual lot
development. The need for site specific studies shall be disclosed on the plat in the
form of a plat note. Those recommendations include the following:
8.29.1 Prospective building owners should be made aware of the potential low
risk of evaporate deformation. If the low risk is not acceptable to building
owners, it can be reduced by the use of heavily reinforced foundation
system preferably without a basement.
8.29.2 It is recommended that Improvements not be located within 50 feet of the
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mapped fault trace identified in Figure 1 of the HP Geotech report dated
January 15, 2010 on file in the office of the registered agent of the
Association.
8.29.3 It is recommended that additional subsurface exploration be made in these
areas to evaluate the engineering characteristics of the lake deposits.
These areas include Lots 6, 7, and 8 of Block 2 and 200 feet of the
western most portion of Lake Springs Road.
8.29.4 The recommended foundation system will depend on the site specific
expansion potential. Also, a structural floor system over a crawlspace
may be warranted depending on the expansion potential at a specific
building site. A site specific foundation study by the individual Lot Owners
should be conducted for design level recommendations.
8.29.5 More extensive grading should be evaluated on a site specific basis. As
previously recommended, cut and fill should not exceed 10 feet deep and cut
and fill slopes should be 2: 1 (horizontal to vertical) or flatter. The
proposed grading plans, when available, shall be reviewed a geologist, civil
engineer or other applicable profession to determine if additional
subsurface exploration and analysis are needed.
8.29.6 Any channel crossing should be designed for the appropriate flood
discharge and include provisions for a high sediment concentration flooding.
Hydrologic analysis in these areas should also consider flood flow
velocities and the need for channel erosion stabilization to protect the
Lots
8.29.7 Occupied structures should be designed to withstand moderately strong
ground shaking with little or no damage and not to collapse under
stronger ground shaking. The region is in the Uniform Building Code,
Seismic Risk Zone 1.
8.30 Wildfire Prevention. In order to protect the Planned Community from the hazards
of wildfires, the Planned Community shall conform with the Wildfire Hazard Review on
file with the registered agent of the Association and submitted with the application for
subdivision submitted to the Garfield County Building and Planning Department
regarding defensible space, water supply, roofing materials, vents and roof lines, and
maintenance requirements. When implementing a plan to reduce flammable material
around structures in an area where Harrington’s penstemon exists, Owner must avoid
removing or trampling the penstemon. Owner shall submit proof of compliance to the
Development Review Committee prior to construction of any Improvement. All
Improvements shall also be required to have state approved fire sprinkler systems
installed and shall submit proof of compliance to the Development Review Committee.
8.31 Requirement for Pressure Reducer Valves. It has been determined that Lots 16,
17 and 18 of Block 3 shall be required to install individual water pressure reducing
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valves. Lots 19, 20 and 27 through 37 of Block 5 shall be required to install individual
water pressure booster pumps.
9. DEVELOPMENT REVIEW
9.1 Development Guidelines. The Association shall apply the Development Guidelines
when reviewing proposed Improvements on a Lot. The Development Guidelines shall not be
inconsistent with this Declaration, but shall more specifically define and describe the Development
standards for the Planned Community. The Development Guidelines may be modified or
amended from time to time by the Association to establish reasonable criteria, including,
without limitation, requirements relating to design, scale and color, as the Association may
deem appropriate in the interest of preserving the aesthetic standards of the Planned
Community. In addition, the Lake Springs Ranch Planned Unit Development PUD Guide (PUD
Guide), which is considered part of the Development Guidelines, may be amended pursuant to
approval by Garfield County in accordance with applicable standards and procedures of the
Garfield County Land Use and Development Code. Further, the Association, in its sole
discretion, may excuse compliance with the Development Guidelines that are not necessary or
appropriate in specific situations, provided that no aspect of the approved PUD Guide may be
varied from without prior approval of an amendment of the PUD Guide having been granted by
Garfield County in accordance with applicable standards and procedures of the Garfield County
Land Use and Development Code. Compliance with the Association's Development Review
process shall not be a substitute for compliance with applicable governmental building, zoning and
subdivision regulations. Each Owner shall be responsible for obtaining all approvals,
licenses and permits as may be required before commencing construction.
9.2 Development Review Committee. The Association shall have a Development Review
Committee, which shall consist of a minimum of three (3) members, each of whom shall either be
(i) a representative of Declarant, (ii) an Owner of a Lot in the Planned Community or (iii) a local
architect, landscape architect or engineer. All members of the Development Review Committee
shall be appointed and removed from time to time by the Executive Board in its discretion. A
member may be removed by the Executive Board at any time upon written notice, without
cause. Subject to the three (3) member minimum, the Executive Board may increase or
decrease the size of the Development Review Committee from time to time in its discretion. The
Executive Board may hire or appoint a secretary for the Development Review Committee, and
shall provide appropriate compensation for any such secretarial services.
9.3 Meetings and Action of Development Review Committee. The Development Review
Committee shall meet from time to time as necessary to perform its duties hereunder. A majority
of the members of the Development Review Committee shall constitute a quorum of the
Committee. Actions of the Committee shall be taken at a meeting at which a quorum is present
in person or by proxy, by the vote of a majority of such members constituting the quorum, but in
no event less than two (2) members. The Development Review Committee shall report in
writing to the Executive Board all final actions of the Development Review Committee, and the
Executive Board shall keep a permanent record of such reported actions.
9.4 Pre-submission Conference. Every Owner proposing to make Improvements to a Lot
shall meet in a pre-submission conference with the Development Review Committee to
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discuss the general nature and scope of the contemplated Improvements, the Development
Guidelines and the Committee's procedures prior to Owner's expenditure of significant design
fees. The Development Review Committee shall give priority to the scheduling of such pre-
submission conferences. The Owner's design prof essional should, if possible, attend the pre-
submission conference.
9.5 Development Review. The Development Review Committee shall review, study and
either approve or reject proposed Improvements in the Planned Community, in compliance with
this Declaration and the Development Guidelines. Each application for Development Review shall
include such plans and specifications and other information as may reasonably be required by
the Development Review Committee. In any Development Review, the Development Review
Committee shall exercise its best judgment to see that all Improvements conform and
harmonize with any existing structures as to external design, quality and type of construction,
materials, color, location of Improvements, height, grade and finished ground elevation and all
aesthetic considerations set forth in this Declaration and in the Development Guidelines. The
Development Review Committee may avail itself of technical and professional advice as it deems
appropriate. The Development Review Committee shall make reasonable Rules and Regulations
as it may deem appropriate to govern in such proceedings. The Development Review
Committee's exercise of discretion in approval or disapproval of plans or with respect to any other
matter before it, shall be conclusive and binding on all parties.
9.6 Development Review Expenses. The Association shall have the right to recover the
reasonable costs and expenses of any technical and professional advice required to properly
consider the application from the Owner Applicant.
9.7 Decision of Committee. Any decision of the Development Review Committee shall be
made within forty-five (45) days after receipt by the Development Review Committee of all
materials and information required by the Development Review Committee, unless such time
period is extended by mutual written agreement. The decision shall be in writing and if the
decision is not to approve the proposed Improvements, the reasons therefor shall be stated.
The decision of the Development Review Committee shall be promptly transmitted to the Owner
at the address furnished by the Owner to the Development Review Committee. Any written
request for approval of proposed Improvements shall be deemed approved, unless written
disapproval or a request for additional information or materials is transmitted to the Owner by
the Development Review Committee within sixty (60) days after the date of receipt by the
Development Review Committee of all required materials and information, unless such time
period is extended by mutual written agreement.
9.8 Prosecution and Completion of Work After Approval. Following an approval of any
proposed Improvements by the Development Review Committee, the proposed Improvements
shall be completed by the Owner: (a) in compliance with the Development Guidelines and with
all applicable laws, regulations and codes, (b) in strict conformance with all plans and
specifications and other materials presented to and approved by the Development Review
Committee; and (c) in accordance with any an d all conditions imposed by the Development
Review Committee. All Improvements approved by the Development Review Committee
shall be completed, including issuance of a Certificate of Occupancy and the removal of all
construction equipment, materials and debris within twenty-four (24) months from the date of
26
approval of such Improvements by the Development Review Committee, provided, however, that
any and all landscaping approved by the Development Review Committee which is related to
the initial construction of a residence on a Lot shall be completed no later than six (6) months
immediately following the issuance of the Certificate of Occupancy for such residence. Any
member or agent of the Development Review Committee or of the Executive Board, may, at any
reasonable time enter, without being deemed guilty of trespass, upon any Lot, after reasonable
notice to the Owner, in order to inspect Improvements constructed or being constructed on
such Lot, to ascertain whether such Improvements have been or are being built or changed in
compliance with the Development Guidelines, the approvals granted by the Development
Review Committee, and this Declaration. Failure to comply with the terms and conditions of
this Section shall constitute noncompliance with the terms and provisions of this Declaration and
the Executive Board shall have the right to invoke all rights and remedies available, including but
not limited to, the imposition of fines and penalties.
9.9 Limitation of Liability. The Association shall use reasonable judgment in accepting
or rejecting plans and specifications submitted to it for Development Review. Neither the
Association, Declarant, nor any officer, Executive Board member, Development Review
Committee member or individual Association member shall be liable to any person for any act of
the Association concerning submitted plans and specifications, except for wanton and willful acts.
Approval by the Association does not necessarily assure approval by any governmental
authority having jurisdiction. Notwithstanding Association approval of plans and specification,
neither the Association nor any of its members shall be responsible or liable to any Owner,
developer or contractor with respect to any loss, liability, claim or expenses which may arise
because of approval of the construction of the Improvements. Neither the Executive Board, the
Development Review Committee, the Association, nor Declarant, nor any of their employees,
agents or consultants shall be responsible in any way for any defects in any plans or
specifications submitted, revised or approved in accordance with the provisions of the Declaration,
nor for any structural or other defects in any work done according to such plans and
specifications.
10. CONSTRUCTION AND ALTERATION OF IMPROVEMENTS
10.1 General. Subject to all applicable local laws, regulations and codes, the
Development Guidelines and the provisions set forth in this Declaration shall govern the right
of a Owner to construct, reconstruct, refinish, alter or maintain any Improvement upon, under or
above any of the Property, and to make or create any excavation or fill on the Property, or
make any change in the natural or existing surface contour or drainage, or install any utility line or
conduit on or over the Pr operty. In order to protect the Harrington’s penstemon and other
native vegetation, all construction activity, storage of materials, fill and debris, parking of
vehicles and equipment shall occur within the building envelopes.
10.2 Approval Required. No Improvement in the Planned Community shall be erected, placed,
reconstructed, replaced, repaired or otherwise altered, nor shall any construction, repair or
reconstruction be commenced until plans for such Improvement shall have been approved by
the Association; provided, however, that Improvements and alterations which are completely
within a structure may be undertaken without such approval.
27
10.3 Underground Utility Lines. With respect to the new construction of any Improvements
within the Planned Community or the extension of any utilities, all utility pipes or lines within
the limits of the Planned Community shall be buried underground beneath roads and
driveways, or in such other locations that shall seek to avoid the Harrington’s penstemon, and
not be carried on overhead poles or above the surface of the ground. Any natural vegetation
disturbed by the installation of utility lines shall be revegetated within twelve (12) months of
completion of any Improvement by and at the expense of the Owner causing the installation of
such utilities.
10.4 Size Restrictions of Dwellings. The minimum living area of the dwelling on any Lot shall
be 1,800 square feet, exclusive of all areas utilized for garages, decks and open porches.
10.5 Specific Requirements for Dwellings. The maximum building height shall be as
determined and defined by the Lake Springs Ranch PUD Guide. All construction materials
shall be new, except for the limited use of antique treatments, fixtures and accessories. Log
homes which are to be erected on a log by log basis on a Lot which may have been originally
fitted together at a place other than the Lot may be approved by the Association. Without
limiting the generality of the foregoing or the right of the Development Review Committee to
impose additional limitations and conditions, reflective materials shall not be permitted on the
exterior of structures within the Planned Community without the prior written approval of the
Development Review Committee. No mobile homes shall be allowed on any Lot.
10.6 Fireplaces and Stoves. No open hearth solid fuel fireplaces shall be allowed. There
shall be no restrictions on the number of natural gas burning fireplaces or appliances. Each
dwelling unit will be allowed one (1) new wood-burning stove as defined by C.R.S. 25-7-401, et.
seq. and the regulations promulgated thereunder.
10.7 Fences and Hedges. The type and location of all fences and hedges will be subject to the
approval of the Development Review Committee prior to installation. Only wooden fences shall
be permitted within the Property, with limited exceptions for small gardens, kennels, play areas
for small children or otherwise and only in circumstances where a wooden fence would not
serve the required purpose. Barbed wire fencing shall be prohibited. The Development Review
Committee shall consider the effect on wildlife activity prior to approving any requested fencing.
Wood fencing shall not exceed forty-two (42) inches in height, shall not have more than two (2)
horizontal poles with spacing of at least eighteen inches (18") between rails and with the bottom
rail at least twenty-four inches (24") above the ground. Lot boundary perimeter fencing shall
not be allowed.
10.8 Landscaping. No landscaping shall be performed on any Lot unless a landscaping plan
therefor has received the prior written approval of the Development Review Committee. A
landscaping plan for each Lot must be approved by the Development Review Committee before
construction is commenced on the residence on that Lot. In each instance, an approved
landscaping plan shall be fully implemented and performed within the six (6) month period
immediately following (i) the issuance of a Certificate of Occupancy for a residence constructed
on a Lot, or (ii) the approval of the landscaping plan by the Development Review Committee in all
instances not involving the construction of a residence on a Lot. Notwithstanding the foregoing,
no review or approval shall be required for the replacement or replanting of the same or
28
similar kind of trees, or plants, or flowers, or other vegetation that has been previously approved by
the Development Review Committee for the Lot in question, in the previously approved location
therefor. Any material change in the type or location of approved landscaping vegetation shall
require the further approval of the Development Review Committee. Landscaping shall be
primarily indigenous plant life from a plant list to be established by the Development Review
Committee. Irrigation of landscaped areas shall be subject to guidelines promulgated by the
Development Review Committee. Each Owner shall diligently maintain, trim, weed, cultivate,
husband, protect, preserve and otherwise keep in a healthy and attractive condition the shrubs,
trees, hedges, grass, planters, gardens and other landscaping upon the Owner's Lot, including,
without limitation, the removal of dead and diseased branches and brush and the
performance of other tasks necessary to remove or eliminate material which constitutes or
creates a fire hazard or nuisance, and shall keep the Owner's Lot free of any prohibited plants.
Each Owner shall cooperate with the Association in its fire protection husbandry program for
reduction of fire hazard within the Planned Community. Each Owner shall also maintain all
paved, concrete and other synthetically surfaced areas within the Owner's Lot, including but
not limited to, driveway and parking areas, in good condition and repair.
10.9 Removal of Nonconforming Improvements. The Association, after reasonable notice to
the Owner, may remove any Improvement constructed, reconstructed, refinished, altered or
maintained violating this Declaration, and the Owner shall immediately reimburse the
Association for all expenses incurred in such removal.
10.10 Fire Protection District Recommendation. Each Owner shall adhere to the
recommendations of the Carbondale and Rural Fire Protection District.
11. MAINTENANCE
11.1 Owner's Maintenance Responsibility. Except as provided otherwise in this Declaration
or by written agreement with the Association, all maintenance of individual Lots including,
without limitation, all Improvements, utility systems, utility lines from the point of departure from
shared usage and landscaping shall be the sole responsibility of the respective Owners. Each Lot
shall be maintained in a good, cl ean, safe, attractive and sanitary condition and repair
consistent with the requirements of a first class residential development. An Owner shall not
allow any action or work that will impair the structural soundness of the Improvements or
impair the proper functioning of utilities or other services.
11.2 Owner's Negligence. In the event that any portion of the Common Elements requires
repair or replacement due to the negligent or willful act or omission of an Owner or Occupant,
then the expenses incurred by the Association for such repair or replacement shall be a personal
obligation of such Owner. If the Owner fails to pay the same within ten (10) days after notice is
given to the Owner of the amount owed, then the failure to so repay shall be a default by the
Owner and such expenses shall automatically become a default Assessment.
11.3 Association's Maintenance Responsibility. The Association shall maintain and keep all
portions of the Common Elements in good, clean, attractive, safe and sanitary condition and
repair consistent with the requirements of a first class residential development.
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12. INSURANCE
12.1 Owner's Insurance Responsibility. Each Owner shall be responsible for all insurance
coverage for the owner's Lot and all Improvements and betterments thereon. In addition,
each Owner shall be responsible for insuring all personal property within the Lot, as well as
general liability insurance and any other insurance coverage deemed appropriate by such Owner.
Each Owner's policy shall contain waivers of subrogation and provide further that the liability of
the carriers issuing insurance to the Association hereunder shall not be effected or diminished
by reason of any such insurance carried by any Owner.
12.2 Association's Insurance Responsibility. The Association shall maintain all insurance
coverage required by the provisions of C.R.S. 38-33.3-101, et. seq., as the same may be
amended from time to time, together with such other insurance as the Executive Board of the
Association shall deem advisable.
12.3 Coverage. Commencing not later than the first conveyance of a Lot to a purchaser and to
the extent reasonably available, the Association shall obtain and maintain insurance coverage
as set forth in this Article. If such insurance is not reasonably available, and the Executive Board
determines that any insurance described herein will not be maintained, the Executive Board shall
promptly cause notice of that fact to be hand delivered or sent prepaid by United States mail to all
Owners and Eligible First Mortgagees at their respective last known addresses.
12.4 Required Provisions. All insurance policies carried pursuant to the requirements of this
Article must provide that: (a) each Owner and each Eligible First Mortgagee is an insured person
under the policy with respect to liability arising out of such Owner's interest in the Common
Elements or membership in the Association; (b) the insurer waives its rights to subrogation under
the policy against any Owner or member of his household; (c) no act or omission by any
Owner or Eligible First Mortgagee, unless acting within the scope of such Owner's authority on
behalf of the Association, will void the policy or be a condition to recovery under the policy; (d) if, at
the time of a loss under the policy, there is other insurance in the name of an Owner
covering the risks covered by the policy, the Association's policy provides primary insurance;
(e) any loss covered by the policies must be adjusted with the Association; (f) the insurance
process for any loss shall be payable to an insurance trustee designated for that purpose, or
otherwise to the Association and not to any holder of a Security Interest; (g) the insurer shall
issue certificates or memoranda of insurance to the Association and, upon request, to any
Owner or holder of a Security Interest; and (h) the insurer issuing the policy may not cancel or
refuse to renew it until thirty (30) days after notice of the proposed cancellation or nonrenewal
has been mailed to the Association and any Owner(s) and holder(s) of Security Interests to
whom a certificate or memorandum of insurance has been issued at their respective last
know addresses.
12.5 Adjustment of Claims. The Association may adopt and establish written
nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for
deductibles and any other matters of claims adjustment. To the extent the Association settles a
property insurance claim, it shall have the authority to assess negligent Owners causing such
loss or benefitting from such repair or restoration all deductibles paid by the Association. In the
event more than one Lot is damaged by a loss, the Association in its reasonable discretion may
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assess each Owner a pro rata share of any deductible paid by the Association.
12.6 Copies of Policies. A copy of each insurance policy obtained by the Association shall be
made available for inspection by any Owner at reasonable times.
13. RESERVATION OF DEVELOPMENT RIGHTS
13.1 Development and Withdrawal Rights. Declarant expressly reserves the right to create
Lots and Common Elements (the "Additional Improvement"), to combine Lots, to subdivide Lots, to
convert Lots into Common Elements, to convert Common Elements into Lots on all or any
portion of the Property reserved for future development phases in this Declaration. Declarant
may exercise any or all of the Development Rights so reserved at any time with respect to all
or any of the Property marked subject to Development Rights on the Plat. No assurances are
made with respect to the boundaries of any Lots that may be developed or the order in which the
Lots may be developed. Exercise of a Development Right with respect to any one parcel does
not require exercise of a Development Right on any other parcel of the Property subject to
Development Rights. No assurances are made, however, that any further development will
occur. Declarant expressly reserves the right to withdraw all or any portion of the Property from
the Planned Community by recording a document evidencing such withdrawal in the records of
the Garfield County Clerk and Recorder; provided, however, that no portion of the Property may
be withdrawn after a Lot in that portion of the Property has been conveyed to a purchaser.
Real estate withdrawn from the Planned Community shall be subject to whatever easements, if
any, are reasonably necessary for access to or operation of the Planned Community. Declarant
shall prepare and record in the records of the Garfield County Clerk and Recorder whatever
documents are necessary to evidence such easements.
13.2 Construction Easement. Declarant expressly reserves the right to perform
construction work and to store materials in secure areas on the Common Elements and the right of
access thereto, until completion of all Improvements required for the Common Elements.
Declarant has such an easement through the Common Elements as may be reasonably
necessary for the purpose of discharging Declarant's obligations and exercising Declarant's
reserved rights in this Declaration. Such easement includes the right to construct underground
utility lines, pipes, wires, ducts, conduits and other facilities across the Property not designated as
reserved for future development in this Declaration or on the Plat for the purpose of furnishing utility
and other services to Improvements to be constructed on any of the Property reserved for future
development. Declarant's reserved construction easement includes the right to grant
easements to public utility companies and to convey improvements within those easements
anywhere in the Common Elements not occupied by an Improvement on a Lot.
13.3 Reciprocal Easements. If property is withdrawn from the Planned Community
("Withdrawn Property"): (a) the owners of the Withdrawn Property shall have whatever
easements are necessary or desirable, if any, for access, utility service, repair, maintenance and
emergencies over and across the Planned Community and (b) the Owners in the Planned
Community shall have whatever easements are necessary or desirable, if any, for access,
utility service, repair, maintenance and emergencies over and across the Withdrawn Property.
Declarant shall prepare and record in the records of the Garfield County Clerk and Recorder
whatever documents are necessary to evidence such easements. Such recorded easements
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shall specify that the owners of the Withdrawn Property and the Owners in the Planned
Community shall be obligated to pay a proportionate share of the cost of the operation and
maintenance of any easements utilized by either one of them on the other's property upon such
reasonable basis as Declarant shall establish in the easements.
13.4 Termination of Development Rights. The Development Rights reserved to Declarant
shall expire thirty (30) years after the date of recording this Declaration in the records of the
Garfield County Clerk and Recorder, unless the Development Rights are reinstated or extended
by the Association, subject to whatever terms, conditions and limitations the Executive Board
may impose on the subsequent exercise of the Development Rights by Declarant.
Declarant may at any time release and relinquish some or all of the Development Rights with
respect to all or any part of the Property subject to such rights by instrument executed by
Declarant and effective when recorded in the records of the Garfield County Clerk and
Recorder. Upon the expiration or other termination of the Development Rights, any Property then
subject to such rights shall become Common Elements or Lots, as applicable.
13.5 Interference with Development Rights. Neither the Association nor any Owner may take
any action or adopt any rules or regulations that will interfere with or diminish any
Development Rights reserved by this Article without the prior written consent of Declarant.
13.6 Transfer of Development Rights. Any Development Rights created or reserved under
this Article for the benefit of Declarant may be transferred to any person by an instrument
describing the rights transferred and recorded in the records of the Garfield County Clerk and
Recorder. Such instrument shall be executed by the transferor Declarant and the
transferee.
14. SPECIAL DECLARANT RIGHTS
14.1 Special Declarant Rights. Declarant hereby reserves the right, from time to time, to
perform the acts and exercise the rights hereinafter specified (the "Special Declarant Rights").
Declarant's Special Declarant Rights include the following:
14.1.1 Use of Property During Construction. It shall be expressly permissible
and proper for Declarant and any person acting with the prior written
consent of Declarant, and their respective employees, agents,
independent contractors, successors, and assigns involved in the
construction of all Improvements required for the Common Elements
and all Lots or the providing of utility service to the Property, to perform
such activities and to maintain upon portions of the Property as they
deem necessary, such facilities as may be reasonably required,
convenient, necessary or incidental to such construction and
development of the Property. This permission specifically includes,
without limiting the generality of the foregoing, maintaining business
offices, storage areas, construction yards and equipment, signs and
sales offices. However, no activity shall be performed and no facility shall
be maintained on any portion of the Property in such a way as to
unreasonably interfere with the use of any Lot.
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14.1.2 Exercise of Development Rights. The right to exercise any Development
Right reserved in this Declaration.
14.1.3 Sales, Management and Marketing. The right to locate, relocate and
maintain sales offices, management offices, signs advertising the
Planned Community, and models within any Lot or Lots and in the Common
Elements. Declarant shall have the right to show Lots and the Common
Elements to prospective purchasers.
14.1.4 Construction Easements. The right to use easements through the
Common Elements for the purpose of making Improvements within the
Planned Community.
14.1.5 Control of Association and Executive Board. The right to appoint or
remove any officer of the Association or any member of the Executive Board.
14.1.6 Amendment of Declaration. The right to amend this Declaration in
connection with the exercise of any Development Rights.
14.1.7 Amendment of Plat. The right to amend the Plat in connection with the
exercise of any Development Rights.
14.1.8 Signs. The right to maintain signs on the Common Elements advertising the
Planned Community.
14.1.9 Post-Sales. The right to use the Common Elements to maintain
customer relations and provide post-sale services to Owners.
14.2 Additional Reserved Rights. In addition to the Special Declarant Rights set forth
above, Declarant also reserves the following additional rights (the "Additional
Reserved Rights"):
14.2.1 Dedications. The right to establish, from time to time, by dedication or
otherwise, utility and other easements for purposes including but not
limited to streets, paths, walkways, drainage, parking areas, driveways and
to create other reservations, exception and exclusions for the benefit of
and to serve the Owners within the Planned Community.
14.2.2 Easement Rights. The rights to an easement through the Common
Elements as may be reasonably necessary for the purpose of discharging
Declarant's obligations arising under this Declaration or the Act.
14.2.3 Other Rights. The right to exercise any Additional Reserved Right
created by any other provision of this Declaration or of the Act.
14.3 Limitations on Special Declarant Rights and Additional Reserved Rights. Unless
sooner terminated by an amendment to this Declaration executed by Declarant, any Special
Declarant Right or Additional Reserved Rights may be exercised by Declarant so long as
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Declarant (a) is obligated under any warranty or obligation; (b) holds a Development Right; (c)
owns any Lot; or (d) holds a Security Interest in any Lot; provided, however, all Special Declarant
Rights and Additional Reserved Rights shall terminate thirty (30) years after the date of
recording this Declaration. Earlier termination of certain rights may occur pursuant to
requirements of the Act.
14.4 Interference with Special Declarant Rights. Neither the Association nor any Owners
may take any action or adopt any rule and/or regulation that will interfere with or diminish any
Special Declarant Rights or Additional Reserved Rights without the prior written consent of
Declarant.
14.5 Rights Transferable. Any Special Declarant Rights or Additional Reserved Right created
or reserved under this Article for the benefit of Declarant may be transferred to any person by an
instrument describing the rights transferred and recorded in the records of the Garfield County
Clerk and Recorder. Such instrument shall be executed by the transferor Declarant and
the transferee.
14.6 Declarant Control of the Association. There shall be a “Period of Declarant Control”
during which Declarant may appoint and remove the officers and members of the Executive
Board. The Period of Declarant Control commences upon the date of initial recording of the Plat
and terminates no later than the earlier of:
14.6.1 Sixty (60) days after conveyance of seventy-five percent (75%) of
all Lots that may be created to Owners other than the Declarant; or
14.6.2 Two (2) years after the last conveyance of a Lot by the Declarant in the
ordinary course of business to Owners other than the Declarant; or
14.6.3 Two (2) years after any right to add new Lots was last exercised; or
14.6.4 Five (5) years after the date of initial recording of the Lake Springs Ranch
Filing 2 Preliminary Plan.
Declarant may voluntarily surrender the right to appoint and remove officers and
members of the Executive Board before termination of the Period of Declarant Control. In that
event, the Declarant may require, for the duration of the Period of Declarant Control, that
specified actions of the Executive Board, as described in a recorded instrument executed by the
Declarant, be approved by the Declarant before they become effective.
14.7 Election By Owners.
14.7.1 Not later than sixty (60) days after conveyance of twenty-five
percent (25%) of the Lots that may be created to Owners other than
the Declarant, at least one member and not less than twenty-five
percent of the members of the Executive Board shall be elected by
Owners other than the Declarant.
14.7.2 Not later than sixty (60) days after conveyance of a total of fifty
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percent (50%) of the Lots that may be created to Owners other than
Declarant, not less than thirty-three and one third percent (33.3%)
of the members of the Executive Board must be elected by Owners
other than the Declarant.
14.7.3 Not later than the termination of the Period of Declarant Control, the
Owners shall elect an Executive Board of at least three (3)
members, at least a majority of whom shall be Owners other than
the Declarant. The Executive Board shall elect the officers of the
Association. The Owners’ Executive Board shall take office upon
termination of the Period of Declarant Control upon election.
15. MORTGAGEE PROTECTIONS
15.1 Introduction. This Article establishes certain standards and covenants which are for the
benefit of First Mortgagees. This Article is supplemental to, and not in substitution for, any
other provisions of this Declaration, but in the case of any conflict, this Article shall control.
15.2 Percentage of First Mortgagees. Unless specifically provided otherwise, wherever in this
Declaration the approval or consent of a specified percentage of Eligible First Mortgagees is
required, it shall mean the approval or consent of sixty-seven percent (67%) of Eligible First
Mortgagees. Each Eligible First Mortgagee shall be entitled to one vote for each Mortgage held
by such Eligible First Mortgagee.
15.3 Notice of Actions. If requested in writing to do so, the Association shall give prompt
written notice of the following to each Eligible First Mortgagee making such request: (a) any
condemnation loss or any casualty loss which affects a material portion of the Common
Elements or any Lot in which an interest is held by the Eligible First Mortgagee; (b) any
delinquency in the payment of Assessments which remains uncured for sixty (60) days by a
Owner whose Lot is encumbered by a Mortgage held by such Eligible First Mortgagee; (c) any
lapse, cancellation or material modification of any insurance policy or fidelity bond maintained
by the Association; (d) any proposed action which would require the consent of Eligible First
Mortgagees as set forth in this Article; (e) any judgment rendered against the Association; and (f)
a copy of any financial statement of the Association.
15.4 Consent Required. The Association may not take any of the following actions, except
as such rights have been specifically reserved by Declarant under the provisions of this
Declaration, without the consent of sixty-seven percent (67%) of the Eligible First Mortgagees: (a)
sale, conveyance or encumbrance of the Common Elements (provided, however, that the granting
of easements for public utilities, for construction and maintenance of roads within the Planned
Community, or for other purposes provided for in this Declaration will not be deemed a transfer
within the meaning of this clause); (b) restoration or repair of the Planned Community (after
hazard damage or partial condemnation) in a manner other than that specified in this
Declaration; (c) termination of this Declaration for reasons other than substantial destruction or
condemnation, subject to the approval percentages required for such termination; (d) merger of the
Planned Community with any other common interest community; or (e) any action not to repair
or to replace the Common Elements except as permitted in this Declaration.
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15.5 Notice of Objection. Unless an Eligible First Mortgagee provides the Secretary of the
Association with written notice of its objection, if any, to any proposed amendment or action
requiring the approval of Eligible First Mortgagees within thirty (30) days following the receipt of
notice of such proposed amendment or action, the Eligible First Mortgagee will be deemed
conclusively to have consented to or approved the proposed amendment or action.
15.6 First Mortgagees' Rights.
15.6.1 Advances. First Mortgagees, jointly or singly, may pay taxes or other
charges which are in default and which may or have become a charge
against any of the Common Elements or improvements thereon, and may
pay overdue premiums on hazard insurance policies, or secure new
hazard insurance coverage on the lapse of a policy, for the Common
Elements. First Mortgagees making such payments shall be owed immediate
reimbursement from the Association.
15.6.2 Cure Rights. First Mortgagees shall be entitled to cure any delinquency of
the Owner encumbered by a First Mortgage in the payment of Assessments.
In that event, the First Mortgagee shall be entitled to obtain a release
from the lien imposed or perfected by reason of such delinquency.
15.7 Limitations on First Mortgagee's Rights. No requirement for approval or consent by a First
Mortgagee provided in this Article shall operate to: (a) deny or delegate control over the general
administrative affairs of the Association by the Owners or the Executive Board; (b) prevent the
Association or Executive Board from commencing, intervening and/or settling any legal
proceeding; or (c) prevent any insurance trustee or the Association from receiving and
distributing any insurance proceeds.
15.8 Special Declarant Rights. No provision or requirement of this Article entitled
"Mortgagee Protections" shall apply to any Special Declarant Rights reserved to Declarant in
this Declaration.
16. ENFORCEMENT OF DECLARATION
16.1 Violation Deemed a Nuisance. Every violation of this Declaration is declared and deemed
to be a nuisance. All public and private remedies allowed at law or equity against anyone in
violation of this Declaration shall be available.
16.2 Compliance. Each Owner and Occupant shall comply with the provisions of this
Declaration as the same may be amended from time to time. Failure to comply with this
Declaration shall be grounds for an action to recover damages or for injunctive relief to cause
any such violation to be remedied, or both. Each Owner shall be responsible for the conduct
of the Owner's family, tenants, employees, guests, contractors, agents, licensees, invitees and
Occupants whether or not the Owner is present. Each Owner shall inform all such persons of
this Declaration. Any violation of this Declaration by any such person shall be deemed a
violation by the Owner.
16.3 Who May Enforce. Any action to enforce this Declaration may be brought by Declarant
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or the Executive Board in the name of the Association on behalf of the Owners. If, after a
written request from an aggrieved Owner, neither of the foregoing entities commence an
action to enforce this Declaration, then the aggrieved Owner may bring such an action.
16.4 Enforcement. Enforcement of the covenants, conditions, restrictions, easements,
reservations, rights-of-way and other provisions contained in this Declaration shall be through any
proceedings at law or in equity brought by any aggrieved Owner, the Association or Declarant
against the Association or any Owner. Such actions may seek remedy by injunction or restraint
of a violation or attempted violation, or an action for damages, or any of them, without the
necessity of making an election. Thus all the remedies set forth herein are cumulative and not
exclusive.
16.5 Nonliability. No member of the Executive Board, Declarant or any Owner shall be liable to
any other Owner for the failure to enforce this Declaration at any time.
16.6 Recovery of Costs. If legal assistance is obtained to enforce any provision of this
Declaration, or in any legal proceeding (whether or not suit is brought) for damages or for the
enforcement of this Declaration or the restraint of violations of this Declaration, the prevailing
party shall be entitled to recover all costs incurred, including reasonable attorney's fees.
17. MISCELLANEOUS PROVISIONS
17.1 Severability. The provisions of this Declaration shall be deemed to be independent and
severable, and the invalidity of any one or more of the provisions of it by judgment or court
order or decree shall in no way affect the validity or enforceability of any of the other provisions,
which provisions shall remain in full force and effect. Any provision which would violate the rule
against perpetuities and the rule prohibiting unlawful restraints on alienation shall be
construed in a manner as to make this Declaration valid and enforc eable.
17.2 Construction. In interpreting words in this Declaration, unless the context shall
otherwise provide or require, the singular shall include the plural, the plural shall include the
singular, and the use of any gender shall include all genders.
17.3 Third Party Beneficiary. Th is Declaration is submitted, imposed, and declared solely for
the benefit of Declarant, Owners, First Mortgagees and their respective successors, assigns,
heirs, executors, administrators and personal representatives. No party shall be deemed a third
party beneficiary of this Declaration.
17.4 Condemnation. If all or part of the Common Elements are 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 the provisions on eminent domain in the Act.
17.5 Headings. The headings and captions used in this Declaration are included only as a
matter of convenience and reference and shall not affect the meaning or interpretation of any
provision of this Declaration.
17.6 Conflicts in Legal Documents. In case of conflicts between the provisions in this
Declaration and the Articles or the Bylaws, this Declaration shall control. In case of conflicts in
37
the provisions in the Articles and the Bylaws, the Articles shall control. In case of conflicts
between the provisions in this Declaration and any Plat of the Property, including the plat notes
thereon, the provisions of said plat or plat notes shall govern and control and this Declaration
shall automatically be amended, but only to the extent necessary to conform the conflicting
provisions.
17.7 No Public Use Dedication. Except for roadways conveyed to and accepted by Garfield
County for public use, and except as otherwise expressly provided herein to the contrary,
nothing contained in this Declaration shall be deemed to be or constitute a dedication of any
part of the Property to the public or for any public use.
17.8 Notices. All notices or requests required shall be in writing. Notice to any Owner shall be
considered delivered and effective upon personal delivery, or three (3) days after posting when
sent by certified mail, return receipt requested, to the address of the Owner on file in the records
of the Association at the time of the mailing or if no such address is available, then to the
address shown by the County Assessor. Notice to the Executive Board or the Association shall
be considered delivered and effective upon personal delivery, or three (3) days after posting
when sent by certified mail, return receipt requested, to the Association, at the address as shall
be established by the Association from time to time by notice to the Owners. General notices
to all Owners need not be certified, but may be sent by regular first class mail.
17.9 Waiver or Delay in Enforcement. No failure by the Association or the Executive Board to
give notice of default or any delay in enforcement of any provision or in the exercise of any right or
remedy shall operate as a waiver. No waiver shall be effective unless it is in writing signed by
the Chairman of the Executive Board on behalf of the Executive Board.
17.10 Choice of Law and Jurisdiction. This Declaration shall be construed and interpreted in
accordance with the laws of the State of Colorado, and specifically, the provisions of the Act
and not the general common law (including remedies) of tenancy-in-common. Any legal action
brought in connection with this Declaration shall be commenced in the courts of Garfield County,
Colorado, and by acceptance of a deed to a Lot, the Owner voluntarily submits to the jurisdiction
of such courts.
18. DURATION OF COVENANTS AMENDMENT AND TERMINATION
18.1 Term. This Declaration shall remain in effect from the date of its recordation for a period
of fifty (50) years. Thereafter, this Declaration shall be automatically extended for successive
periods of ten (10) years each, unless otherwise terminated or modified as provided in this
Article.
18.2 Amendment of Declaration. This Declaration may be amended as follows:
18.2.1 Reserved Amendment Rights. To the extent that this Declaration and the
Act expressly permit or require amendments that may be executed by
Declarant or by the Association, this Declaration may be amended by
amendments executed solely by Declarant or solely by the Association. To
the extent permitted by the Act, Declarant may execute any amendment
to the Declaration required or necessary to comply with the
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requirements, standards, or guidelines of recognized secondary
mortgage markets, the Department of Housing and Urban
Development, the Federal Housing Administration, the Veterans
Administration, the Federal Home Loan Mortgage Corporation, the
Government National Mortgage Association, or the Federal National
Mortgage Association secondary mortgage market and Colorado state
regulatory requirements. Declarant may also amend the Declaration or a
Plat to correct clerical, typographical, or technical errors.
18.2.2 General Amendments. Subject to any applicable local regulations and
provisions of this Declaration requiring the consent of Declarant, this
Declaration, any Plat and any Supplement Plats may be amended only
by the vote or agreement of Owners to which more than fifty percent
(50%) of the votes in the Association are allocated. Any such
amendment must be consistent with the conditions of approval
imposed on the Planned Community by the Garfield County Board
of County Commissioners.
18.2.3 Special Amendments. Except to the extent expressly permitted or required
by other provisions of the Act (e.g., permitted Declarant or Association
amendments), the unanimous consent of Owners is required for any
amendment that (i) creates or increases Special Declarant Rights, (ii)
increases the number of Lots, or (iii) changes the boundaries of any Lot, the
Allocated Interests of a Lot or the uses to which any Lot is restricted.
18.3 Execution of Amendments: Expenses. Any amendment shall be prepared, executed
and recorded either by Declarant or by an officer of the Association designated for that purpose
or, in the absence of a designation, by the President of the Association. All expenses
associated with preparing and recording an amendment to this Declaration shall be the sole
responsibility of: (a) any Owners desiring an amendment as provided for in this Declaration or the
Act; (b) Declarant, to the extent the right to amend this Declaration is reserved to Declarant
and exercised by Declarant; or (c) in all other cases by the Association as a Common Expense.
18.4 When Modifications Permitted. Notwithstanding any other provision of this Declaration,
no amendment or termination of this Declaration shall be effective in any event during the
Period of Declarant Control, unless the written approval of Declarant is first obtai ned.
18.5 Recording of Amendments. Any amendment to this Declaration made in accordance
with this Article shall be immediately effective upon the recording of the executed amendment in
the records of the Garfield County Clerk and Recorder together with a duly authenticated
certificate of Declarant or the Secretary of the Association stating that the required vote of
Owners, if any, and required consents of First Mortgagees (and/or Eligible First Mortgagee, as
applicable) were obtained and are on file in the office of the Association.
18.6 Termination of the Planned Community. The Planned Community may only be
terminated as provided in the Act.
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IN WITNESS WHEREOF, Declarant has executed this Declaration this _____ day of
_____________________ 201220__.
The Berkeley Family Limited Partnership,
A Colorado Limited Partnership
B y :
Miriam M. Berkeley, General Partner
STATE OF COLORADO )
) S S .
COUNTY OF GARFIELD )
The foregoing instrument was acknowledged before me this ___ day of _____ ,
2012 20__ by Miriam M. Berkeley as General Partner of the Berkeley Family Limited
Partnership.
Witness my hand and official seal
My Commission Expires:
N o t a r y P u b l i c