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HomeMy WebLinkAbout1.03 Declaration of Covenants, Conditions & RestrictionsDECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE LONG SUBDIVISION THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE LONG SUBDIVISION is made this day of 1998, by BERNARD R. LONG and MARTHA LONG and KEVIN J. LONG (hereafter, collectively the "Declarant"). ARTICLE 1 DECLARATION - PURPOSES AND EFFECT 1.1 General Purposes. Declarant is the owner of real property in Garfield County, Colorado described on Exhibit A attached hereto (hereinafter defined as and referred to as the "Property"). Declarant desires to submit the Property to this Declaration in order to provide for the use, operation, administration and maintenance of certain facilities or functions common to the use or benefit of the Property. This Declaration establishes certain rights and obligations with respect to the Property for the Declarant and all present and future owners of the Property. Declarant intends that such owners, mortgagees and any other person or entity now or hereafter acquiring any interest in the Property shall hold their interests subject to the rights, privileges, obligations, and restrictions established by this Declaration. All such rights, privileges, obligations and restrictions are declared to be in furtherance of a plan to promote and protect the value, desirability and attractiveness of the Property as a rural subdivision community. 1.2 Declaration. Declarant hereby submits the Property, together with any water or ditch rights historically associated with the Property which are owned by the Declarant or any one of them and together with all interest of Declarant in and to that certain Well Permit (Well Permit Number 168645), to this Declaration, and replaces any prior effective declarations, and declares that the Property shall at all times be owned, used or occupied subject to the provisions of this Declaration, and the provisions of the Plat which is incorporated herein by reference, which provisions shall constitute covenants running with the land and shall be binding upon and inure to the benefit of Declarant and any person or legal entity acquiring any interest in the Property. ARTICLE 2 DEFINITIONS The terms listed below, as used in this Declaration, shall have the meanings set forth as follows: 2.1 "Association" means the Long Subdivision Owners' Association, a Colorado unincorporated non-profit association pursuant to C.R.S. 7-30-101 et seq., and its successors and assigns, agents and employees (hereafter "LSOA" or the "Association") through which all Owners of Lots within the Subdivision act as a group under their governing documents and this Declaration. The Association shall be deemed to exist as of the date of the first conveyance of a Lot by the Declarant. 2.2 "Common Areas" means: (a) any real or personal property, including without limitation (i) the roads and private roads, (ii) all water and ditch rights historically used upon the lands subject hereto, and (iii) that certain well permit (Permit No. 168645), owned, leased or maintained by the Association for the use, enjoyment and benefit of all of the Owners, except as hereinafter may be specifically defined and described otherwise; (b) any and all real property identified as Open Space on the Plat of the Subdivision, or any subsequent amendment thereof. 2.3 "Common Facilities" means any and all facilities or systems owned by the Association including, but not limited to, domestic water and irrigation storage and delivery systems, and other utility distributions mechanisms. 2.4 "Board" or "Executive Board" means the governing board of the Association. 2.5 "Bylaws" means the governing document of the Association adopted and amended by the Board of the Association from time to time. 2.6 "Common Expenses" means the estimated and actual expenditures made or liabilities incurred by or on behalf of the Association, together with any allocations to reserves. 2.7 "Declarant" means Bernard R. Long, Martha Long and Kevin J. Long and their successors and assigns specifically identified as such by an instrument executed by said Declarant and recorded in the office of the Clerk and Recorder of Garfield County, Colorado. 2.8 "Declaration" means this Declaration of Covenants, Conditions and Restrictions for the Subdivision, as may be further amended from time to time. 2.9 "Unit" means each residential dwelling unit together with the real property appurtenant thereto within the Subdivision, as shown on the Plat, or as shown upon any resubdivision plat hereafter recorded in the office of the Clerk and Recorder of Garfield County, Colorado. 2.10 "Maintenance" means such operation, management, maintenance, repair, renovation, restoration, or replacement of any property as may be necessary to maintain such real property in substantially the same condition as originally or subsequently constructed, altered or improved including the removal of snow as necessary for customary use and enjoyment. 2.11 "Mortgage" means any mortgage, deed of trust or other security instrument creating a real property security interest in the Common Areas, or any part thereof, or in any Lot, excluding any statutory, tax or judicial liens. "Mortgagee" shall include any grantee, beneficiary or assignee of a Mortgage, and "Mortgagor" shall include any grantor, trustor or a Mortgagee. First Mortgagee means a Mortgagee having priority as a Mortgage against the property thereby but only if the Mortgagee of such Mortgage claims in a written notice delivered to the Association. 2.12 "Owner" means the person or legal entity holding fee simple title to a Unit. Said persons or entities may be referred to collectively as the "Owners". 2.13 "Plat" means the Plat of the Long Subdivision. Said Plat having been recorded in the office of the Clerk and Recorder of Garfield County, Colorado, on as Reception No. , as the same may hereafter be amended. 2.14 "Property" means the real property described in Exhibit A attached hereto. 2.15 "Rules and Regulations" means those rules, regulations and requirements, if any, imposed by the Association on the Owners and occupants of Lots in the Long Subdivision. 2.16 "Subdivision" means the Property, including Common Areas, the Common Facilities and all other benefits and attributes attendant to said Property as set forth upon the Plat, any amended plat and within this Declaration. 2 2.17 "Subdivision Improvements Agreement" shall mean the agreement, if any, between Declarant and the County of Garfield, Colorado, pertaining to the development of the Subdivision. 2.18 "Single Family" shall mean (i) any group of two or more persons directly related by blood or marriage, or (ii) two or three persons unrelated by blood, marriage or adoption, or (iii) a single individual. ARTICLE 3 PROVISIONS APPLICABLE TO THE PROPERTY 3.1 Use. The use of the Property, including use of the Common Areas and Common Facilities, shall comply with the provisions of this Declaration and of any and all Rules and Regulations adopted by the Association for the use of the Property. 3.2 Firearms. The discharge or shooting of firearms is prohibited, except as may be permitted by rules and regulations promulgated by the Association. 3.3 No Mining Drilling or Quarrying. No mining, quarrying, tunneling, excavating or drilling for any substances within the earth, including oil, gas, minerals, sand and gravel, shall be permitted. 3.4 Noxious or Offensive Activity. No noxious or offensive activity or sound shall be carried on upon any portion of the Property at any time nor shall anything be done or permitted which may become a nuisance to, or unreasonably disturb, the Owners or adjacent property owners, or be injurious to the reputation of the Property. 3.5 Restriction on Number of Dogs. Each Unit within the Subdivision shall be permitted to keep no more than one (1) dog at a given time. Each dog kept on a given Lot within the Subdivision shall be confined, at the subject Lot Owner's duty and expense, within the confines of the legal boundaries of said Lot. Each Owner of a Lot within the Subdivision shall have the right to enforce the restriction set forth in this Section 3.5, and shall be entitled to recover any costs, including a reasonable attorney's fee, in the event that legal action is required to enforce this covenant. It shall be a right of the objecting Owner to seek an order of a court of competent jurisdiction. 3.6 Reservation of Rights to Declarant. In order that the Declarant's work may be completed and the Property may be established as a fully developed community, Declarant reserves the following rights with respect to the Property (including the Common Areas, Common Facilities, and the Units), which rights shall be reserved to and remain vested in Declarant for five (5) years from the recording date of this Declaration, without restriction as to the order thereof, notwithstanding the conveyance of the Common Areas or Common Facilities by Declarant to the Association or the conveyance of the Units by Declarant to any other persons or entities: (a) The right of Declarant, and its agents, employees and contractors, to enter upon the Property of the Subdivision and to do whatever the Declarant deems necessary or advisable in connection with the performance of the work to be performed by said Declarant for the complete development of the Property, including, without limitation, the construction and installation of drainage and irrigation facilities, the installation of all utilities including trash storage and removal, the construction of all roads, the grading and landscaping of the Property, the construction of all other improvements to be constructed by Declarant, the erection or placement of temporary structures and the temporary storage of materials and fill dirt as may be reasonably necessary to facilitate the development of the Property, and the placement of such sign or signs on the Property by the Declarant as the Declarant may deem advisable in connection with the sale of, development of or construction on the Units. 3 (b) The right of Declarant to develop and create single family residential units, (hereinabove defined as "Units") within the Subdivision, in compliance with all applicable Garfield County regulations by the recording of this Declaration and the Plat map defining the Lots, the common elements, if any, the allocation of interests in and to the common elements, in accordance with Paragraph 5.1 hereof, and to create the Owners' association described above to govern, own and manage and maintain the common elements of the Subdivision pursuant to applicable laws. ARTICLE 4 PROVISIONS APPLICABLE TO THE UNITS 4.1 Residential and Agricultural Use. Each Lot shall be used only for single family residential purposes, appropriate and reasonable outbuildings, and such accessory agricultural uses as may be permitted by the applicable zoning regulations of the County of Garfield, Colorado. 4.2 Compliance with Declaration. All buildings and other improvements constructed as or upon the Property, and the use thereof, shall comply with the provisions of this Declaration. 4.3 Approval of Structures. No permanent improvement shall be made to any Lot by an Owner without (i) compliance with this Declaration; and (ii) a building permit issued by Garfield County, Colorado, the application for which shall require a drainage plan and the construction thereof which is consistent with the then current applicable County requirements. 4.4 Utilities.All individual septic disposal systems, water, gas, electrical, telephone, cable television and other utility pipes or lines solely within the boundaries of an individual Lot and providing no benefit to any other Lot shall be the exclusive responsibility of the owner of said Lot. 4.5 Impairment of Drainage. No Owner shall do anything which shall impair or adversely affect the natural drainage of the Property, or divert drainage water unto another Lot, or deprive any other Lot of its natural drainage course 4.6 No Subdivision. The Property is intended to used for the development of only single family units and agricultural uses. Declarant or any owner of a Lot within the Subdivision may further subdivide the existing lots of the Long Subdivision only with approval of, and in accordance with, the requirements of the Land Use Regulations of Garfield County, Colorado. Except as aforesaid, no Owner, other than Declarant shall subdivide such Owner's Lot into smaller units or convey or encumber in any less than the full dimensions thereof as shown on the Plat or any amended plat recorded prior to said Owner's acquisition of a Lot. 4.7 Private Roads. The Declarant has, at Declarant's cost, constructed the internal private roads providing each Lot within the Subdivision with access to a public way as shown on the Plat. Hereafter, the costs of the maintenance and repair of such commonly used private roads, including snow removal, shall be payable by the Owners through the Association by assessment. Provided, however, that any Lot owner may, at said Lot Owner's sole expense, upgrade, improve, widen, pave or otherwise enhance the internal private roads of the Subdivision (i) within the boundaries of such Owner's Lot, or (ii) outside the boundaries of such Owner's Lot upon approval of the Association. 4.8 Emergency Access Easement. A nonexclusive easement for ingress and egress is hereby granted to all police, sheriff, fire protection; ambulance, and other similar emergency agencies of persons, now or hereafter servicing the Subdivision and its residents, to enter upon all roads, private roads, and driveways located in the planned community, and on any property in the Subdivision in the lawful performance of their duties. 4 4.9 Easements. The Lots shall be subject to the easements shown and described on the Plat and to such further easements as are provided for and/or authorized in this Declaration; specifically an easement for the Declarant or the Association, their contractors or laborers, to enter upon the Property for purposes of maintenance, if such maintenance is determined by the Declarant or the Association to be necessitated by the Owner's neglect. Primary access to Lot 2 of the Long Subdivision shall be through the Access Road identified on the Plat in the northwestern section of the Subdivision; primary access to Lots 1 and 3 of the Long Subdivision shall be directly to County Road 312 at that Driveway Access point either existing and identified on the Plat or later designated by Garfield County; the easements herein described are hereby limited in scope to ingress and egress purposes only. 4.10 Signs. Other than signs of reasonable, standard size and format which advertise the sale or rental of a particular Lot or Unit, no signs, billboards or other advertising structure of any kind shall be erected, constructed or maintained on any part of the Property, for any purpose whatsoever, except such signs as have been approved by the Association, either for identification of residences or other approved uses and except as are in compliance with the regulations of Garfield County, Colorado. 4.11 Trash. No trash, ashes, abandoned vehicles or other such items or other refuse shall be thrown or dumped anywhere on the Property. The Property shall be maintained in a clean and sanitary condition. 4.12 Temporary Structures. No temporary structure, excavation, basement, trailer or tent shall be permitted on the Property, except as may be determined to be necessary during construction and specifically authorized by the Association and by Garfield County, in writing. 4.13 Nuisance. No noxious or offensive activity shall be carried on any part of the Property, or within or about any Unit, or on the Common Areas, nor shall anything be done or permitted which shall constitute a public nuisance therein. 4.24 Damage by Owners. Each Owner is responsible for any damage caused to roads, ditches, fences, trails, natural draining courses, utilities, Association property, or to other Units, or property thereon during the construction of improvements upon his land by any vehicle belonging either to him or anyone using the roads while engaged in any activity benefiting the Owner. Each Owner shall also be responsible for any damage caused by utility cuts in roads, washouts and runoff damage caused by failure to properly install culverts, and to repair any such damage in a timely manner. 4.25 Fireplaces, Stoves and Fuel Burning Appliances. No open hearth solid fuel fireplaces shall be permitted to be constructed within any Unit after the date of this Declaration. One (1) new solid -fuel burning stove as defined by C.R.S. 25-7-401, et. seq., and the effective regulations promulgated thereunder, may be used or constructed within a Unit. Each Unit is permitted to utilize an unrestricted number of natural gas burning stoves and appliances. 4.26 Exterior Lighting. All exterior lighting used or installed on a Unit shall be limited to the minimum amount necessary under the circumstances. Such exterior lighting, if any, shall be installed and constructed in a manner directing the light inward, toward the interior of the Subdivision, provided, however, that provisions may be made to permit safety lighting which may extend beyond the limits of the Subdivision. ARTICLE 5 PROVISIONS APPLICABLE TO THE COMMON AREAS 5.1 Allocation of Interest. Each of the three (3) Lots within the Long Subdivision is allocated a 1/3 fractional interest in the Common Areas; provided, however, that the Association shall allocate irrigation water rights from the Williams Ditch No. 2 on the basis of historical use. In the event that any Lot is 5 resubdivided and separately conveyed as two (2) Lots, each Owner of a re -subdivided Lot shall be allocated a 1/6 fractional interest in the Common Areas. The respective fractional interest of each Owner in the Common Areas shall be subject to this Declaration and the Bylaws of the Association as may be amended from time to time, for the purpose of governing the management of the Subdivision upon completion. The combined fractional interests of all the Owners shall equal one (1). The specific elements of allocation include: (i) domestic and irrigation water rights, well rights and ditch rights, including decrees, permits or other legal evidence of said rights and ownerships; (ii) all water supply storage and distribution structures; and (iii) all existing utility lines and easements benefiting the Subdivision. 5.2 Benefit of Owners. The Common Areas as shown on the Plat, including pre-existing access easements, ditch easements, water storage easements, utility easements, Well Permit # 168645 and the like shall be maintained and managed by the Association for the benefit of the Owners for the uses and purposes set forth in this Declaration. Appurtenant to each Lot shall be a nonexclusive easement to use the Common Areas, subject to the right of the Association to reasonably limit and regulate the use of the Common Areas by the Owners. 5.3 Development. The Common Areas shall be developed in accordance with the requirements of Garfield County, Colorado and as set forth on the Plat, in this Declaration, and in recognition of all of the easements now and hereafter granted with respect thereto. 5.4 Easements. The Common Areas shall be subject to the easements as shown on the Plat and to such other and further easements as are provided for and/or authorized in this Declaration. The Association, upon acquiring ownership of the Common Areas, shall have the right to grant easements with respect thereto, either public or private, in furtherance of the intents and purposes of this Declaration. 5.5 Compliance with Law. No Owner, his lessees, nor his family members and guests, shall do anything, or keep anything, in or on the Common Areas which would be in violation of this Declaration, or any statute, rule, ordinance, regulation, permit or other validly imposed requirement of any governmental or quasi -governmental body. 5.6 Obligations for Maintenance and Management. Except for those obligations to be performed by Declarant with respect to the development of the Common Areas and Common Facilities, the Association, upon acquiring ownership of the Common Areas and Common Facilities, shall assume and perform all obligations for the Maintenance of the Common Areas, and other areas of the Subdivision, as provided for in this Declaration, and Declarant shall automatically be released from said obligations. Such maintenance responsibility may be delegated by the Association to third parties subject to the terms of the Bylaws of the Association. 5.7 Conveyance of Common Areas and Common Facilities to Association. As early as is legally permitted, but in no event later than upon the separate ownership of fifty percent (50%) of the Lots as contemplated hereby, Declarant shall convey ownership of the Common Areas and Common Facilities to the Association as defined in this Declaration, together with all rights and easements appurtenant thereto and specifically including the water and ditch rights described above and Well Permit # 168645, to the Association, subject to this Declaration and all reservations, exceptions, easements and restrictions pertaining thereto, but free from all monetary liens except the lien for general real estate taxes for the calendar year of such conveyance. Such conveyance shall be made without monetary consideration and may be made from time to time either before or after Declarant has constructed the improvements thereon to be constructed by Declarant or his assigns pursuant to the County of Garfield's requirements and as set forth upon the Plat or elsewhere provided for herein. 5.8 Release of Declarant's Obligations. Upon the transfer of the Common Areas and Common Facilities by Declarant to the Association, Declarant shall automatically be released of its obligation for the construction of the improvements on the Common Areas and Common Facilities. 6 5.9 Private Road Easements. All roads as shown on the Plat, exist to provide access to, and are for the exclusive use and benefit of, the Lots of the Subdivision accessed thereby. There is reserved to the Declarant and the Association permanent perpetual easements under, over, and across said roads for the purposes of operating, installing, constructing, maintaining and repairing these roads, the water distribution systems and other utilities, and for such other purposes as are described in this Declaration and on the Plat. The Association shall have the obligation to maintain said private roads in good condition and repair and to provide for snow removal. 5.10 Prohibited Uses of Common Areas. The Association may, in its discretion, provide rules and regulations for the use of snow mobiles, motor bikes, and motorcycles, and for the engagement of recreational activities, such as cross country skiing, on the Common Areas. Except as specifically authorized by the Association, none of the aforementioned activities may be carried on in the Property. ARTICLE 6 THE ASSOCIATION 6.1 Business and Membership. The Executive Board of the Association shall consist of three (3) persons. The Association through its Executive Board shall govern and manage the Common Areas and shall enforce the provisions of this Declaration. All Owners shall automatically be Members of the Association, and such membership shall automatically cease upon termination of the Owner's interest in his Lot, and shall be subject to the right of the Declarant to appoint persons to the Executive Board until all the Lots are sold. Membership shall be appurtenant to a Lot and shall not be separately conveyed, encumbered or abandoned. Declarant shall continue to appoint members to the Executive Board until such time as the Declarant has sold, transferred and conveyed two-thirds (2/3) or more of the total aggregate number of Lots. Notwithstanding the foregoing, Declarant's rights and responsibilities with respect to the appointment of members of the Executive Board shall at all times be expressly subject to then applicable laws. 6.2 Binding Effect. Each Owner, his lessees, their families and guests and any other persons owning, using or occupying a Lot shall be bound by and shall strictly comply with the provisions of this Declaration, the Bylaws, the Rules and Regulations as hereafter adopted, any deed restrictions and covenants and all rules, regulations and agreements lawfully made by the Association. The Association shall have the right and power to bring suit in its own name for either legal, equitable or injunctive relief for any lack of compliance with any such provisions. The failure of the Association to insist upon the strict performance of any such provisions or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future, of any such provision. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this Declaration, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. 6.3 Powers of the Association. Each Owner agrees that the Association has all the powers granted it by the Colorado Unincorporated Non -Profit Association Act and the Colorado Common Interest Ownership Act and any amendments thereto or replacements thereof. Such powers shall include, without limitation, levying assessments against Owners, imposing a lien on Units for any unpaid or uncollected assessments or penalties, and foreclosing any such liens, enforcing any deed restrictions and covenants, acquiring, holding, owning, leasing, mortgaging and disposing of property including but not limited to real property or personal property used or in connection with the Common Areas or Common Facilities, the adoption of the Rules and Regulations, the defending, prosecuting or intervention in litigation on behalf of all Owners, the borrowing of monies for Association purposes and the right to pledge future income in order to secure such borrowings. The term "pledge of future income" shall include the right to impose a special assessment for repayment of such borrowings and to assign such special assessment (and all lien and collection rights appurtenant thereto) to the lender as security for repayment thereof. The Association may exercise any other right, power or privilege given to it expressly by this Declaration, the Bylaws, or by the laws of the State 7 of Colorado, and every other right, power or privilege reasonably to be implied from the existence of any right, power or privilege given to it herein or reasonably necessary to effectuate any such right, power or privilege. 6.4 Association Rules. The Association may from time to time adopt, amend and repeal Rules and Regulations to be known as the "Long Subdivision Owners' Association Rules" (hereinafter the "Rules") by the majority vote of the Board. The purpose of these Rules shall be to implement, supplement or otherwise carry out the purposes and intentions of this Declaration. The Rules shall be consistent with this Declaration. 6.5 Maintenance of Common Areas and Common Facilities. The Association shall be responsible for Maintenance and operation of all Common Areas and Common Facilities as a Common Expense. (a) The Association shall have the right to dedicate or transfer all or any part of the Common Areas or Common Facilities or improvements thereon to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Owners; provided, however, that no such dedication or transfer shall be effective unless written notice of the proposed dedication or transfer is sent to every Owner at least twenty (20) days, and not more than sixty (60) days prior to the decision to make such dedication or transfer, and unless an instrument is signed by the Owners entitled to cast two-thirds (2/3) of the votes agreeing to such dedication or transfer. 6.6 Fines. In addition to the enforcement actions provided herein, the Executive Board of the Association shall have the right, after affording notice and an opportunity to be heard to an Owner, to fine the Owner, in a reasonable amount, for any violation of this Declaration. Any sum amounts that an Owner is fined shall be deemed a personal obligation and/or lien against such Owner or that Owner's Lot, and may be collected and foreclosed on in the same manner as is provided herein for the collection of common expense assessments, including reasonable attorney fees and costs. 6.7 Other Rights of the Association. The Association may exercise any other right, power or privilege given to it expressly by this Declaration, the Bylaws, or by law, and every other right, power or privilege reasonably to be implied from the existence of any right, power or privilege given to it herein or reasonably necessary to effectuate any such right, power or privilege. 6.8 Notice to Maintain. An Owner shall immediately report to the Association the need for any Maintenance which is the Association's responsibility to provide. In the event of any disagreement as to the need for or the responsibility of the Association to provide the Maintenance, the decision of the Board shall be final. 6.9 Mechanic's Liens. Declarant shall be responsible for the release of all mechanics' liens filed with respect to the Common Areas, or any part thereof, if any such liens arise or are alleged to arise from labor performed or materials furnished at the instance of Declarant, its agents, contractors or subcontractors. Except as the result of labor performed or materials furnished at the instance of the Board, no labor performed or materials furnished with respect to the Common Areas, Common Facilities, or Units shall be the basis for filing a lien against the Common Areas or Common Facilities. No labor performed or materials furnished at the instance of the Board shall be the basis for filing a lien against any Lot or Unit. ARTICLE 7 ASSESSMENTS 7.1 Obligation to Pay Assessments. Each Owner of a Lot shall be subject to such general or special assessments as the Association may levy from time to time. The assessments collected shall be used exclusively to promote the operation, administration, Maintenance and management of the Common Areas, Common Facilities, and the Property for the use and benefit of all Owners. Each Owner shall be obligated to 8 pay and agrees to pay all such assessments levied against his Lot and may not exempt himself from liability by waiver of the use and enjoyment of the Common Areas or by an abandonment of his Lot. 7.2 General Assessments. General assessments shall be based upon a budget for a fiscal year to be designated by the Board, shall include funds for the Common Expenses, and shall also include funds as a reserve for Maintenance which cannot be expected to occur on a regular annual basis. A brief summary of the annual budget shall accompany each annual general assessment notice and shall be ratified by the members as set forth in the Association's governing documents. The failure of the Board to establish a budget for the next fiscal year before the expiration of any fiscal year shall not release the Owners from their obligation to pay any assessments or installments thereof for that or any subsequent year. The budget and assessment installments established for a preceding year shall continue until a new budget is fixed. 7.3 Special Assessments. If the estimated cash requirements set forth in the budget prove to be inadequate for any reason, including non-payment of any Owner's assessment, or there are inadequate funds in the reserve, the Board may levy special assessments from time to time. This Section shall not be construed as an independent source of authority for the Board to incur expenses, but shall be construed to prescribe the manner of assessing for expenses authorized by other Sections. 7.4 Apportionment of Assessments. Except as otherwise specifically provided in this Declaration with respect to the private road or otherwise, the amounts assessed pursuant to this Declaration as a common expense, shall be allocated and assessed among the Owners in accordance with the proportions set forth in Paragraph 5.1 hereof. Assessments which are attributable to only particular a Lot(s) may be allocated, in the sole judgment of the Board, on an appropriate equitable basis. 7.5 Refunds. If in any fiscal year the assessments collected by the Board exceed Common Expenses incurred, the Board shall have the right, but not the obligation, to make refunds or give credits against future assessments. Refunds or credits shall be apportioned in the same manner as the general and special assessments which created such surplus. Owners whose Units were subject to this Declaration for less than the full fiscal year shall receive only a proportionate refund or credit based upon the number of days the Lot was subjected to this Declaration. 7.6 Assessments Adjustments. With respect to any assessment, credit or refund, the Board shall have the power to round off and make other minor adjustments of less than $10.00 in each Owner's allocation for the following purposes: (i) to create whole round numbers for the convenience of the payor; or (ii) to correct any discrepancy between the total of each Owner's allocation of any such assessment, credit, or refund, and the total amount of either the expenses actually subject to assessment or the surplus actually available for a refund or credit. 7.7 Collection and Enforcement Remedies. (a) All assessments or installments thereof and fines imposed under the Declaration or the rules and regulations of the Association shall be due and payable within twenty (20) days after the due date. Overdue assessments shall bear interest at eighteen percent (18%) per annum, or such other lawful rate or charge as the Board may determine from time to time. The payment of any assessment or fine payable in installments may be accelerated by the Board for failure to pay any installment when due. (b) An assessment or fine shall be the personal obligation of the Owner at the time the assessment or fine is levied against the Lot. A suit to recover a money judgment for unpaid assessments or fines may be maintained against any Owner without waiving or otherwise prejudicing the Association's right to pursue any other remedy provided herein or established by law. The Association shall be entitled to recover the costs, expenses and reasonable attorneys' fees as additional sums due under any lien which may be filed or otherwise which are incurred in enforcing any action for payment of assessments or fines or to enforce compliance with any provision contained herein including those set forth by rule and regulation adopted by the Association. 9 (c) The Association shall have a lien against a Lot, and any improvements thereon, for any assessments or fines against the Unit which are due and unpaid from the date of the assessment or fine. Costs of collection, including without limitation, reasonable attorneys' fees and other court Costs, shall be added to the assessment or fine lien amount. All amounts unpaid may be evidenced by a statement executed by the Association and recorded in the office of the Clerk and Recorder of Garfield County, Colorado. The assessment or fine lien against a Lot shall be subordinate only to the First Mortgage on said Lot, except as may be otherwise provided by applicable laws of the State of Colorado. (d) For the purposes of this Section, the term "assessments" includes any amounts due in accordance with the terms of the Declaration including any fines imposed hereunder or under the Rules and Regulations of the Association. The Association shall have the right to foreclose such lien in the manner provided by Colorado law for mortgages upon real property, to the appointment of a receiver and to the rental value of the Unit and its improvements during the period of delinquency through the period of foreclosure until expiration of the period of redemption. The Association shall have the power to bid on the Unit at a foreclosure sale and to acquire, hold, lease, mortgage and convey the same. 7.8 Grantee and Mortgagee Assessment Obligations. No Owner shall convey or mortgage his Lot unless and until all sums due the Association, whether or not evidenced by a recorded statement, are currently paid, but no Mortgage transaction shall be voidable by the Association nor shall the superior position of a First Mortgagee be adversely affected by a lien of the Association. At least ten (10) business days prior to any conveyance or Mortgage, the Owner shall deliver written notice to the Association advising it of the proposed transaction and the names and addresses of all transferees and Mortgagees involved. If any assessment or fine is due and owing by the Owner, his grantee or Mortgagee shall apply the proceeds of any such transaction to the payment of delinquent amounts due the Association before paying or disbursing any amount to the Owner. The grantee of a Lot shall be jointly and severally liable with his grantor for all unpaid assessments against the latter up to the time of the grant or conveyance, without prejudice to the grantee's right to recover from the grantor any amounts paid by the grantee therefor. Upon written request and payment of such reasonable fee as may be set by the Association, the Association shall issue a written statement to such grantee or mortgagee verifying the status of all assessments and fines or charges affecting the Lot. Any statement as to the existence or amount of any delinquencies shall conclusively bind the Association. A First Mortgagee, who takes title to a Lot pursuant to the remedies in the deed of trust encumbering that Lot shall take such Lot free and clear of all unpaid assessments and the lien therefor. 7.9 Assessments for Tort Liability. In the event of any tort liability against the Association which is not covered completely by insurance, each Owner shall contribute for the payment of such liability as a special assessment in the proportion described in this Declaration. The Association may, however, require a larger contribution from fewer than all Owners under any legal or equitable principle regarding liability for negligent or willful acts or omissions. ARTICLE 8 INSURANCE 8.1 Types of Insurance. The Association shall obtain and keep in full force and effect, if appropriate, the following insurance coverage, individually naming the Declarant, as an Owner, and each Owner as an additional insured: (a) Property and fire insurance with extended coverage and standard all-risk endorsements, including vandalism and malicious mischief, of the Common Areas. The total amount of insurance, after application of deductibles shall be one hundred percent (100%) of the replacement value of the insured property exclusive of land, foundations and other items normally excluded from property policies. 10 (b) Public liability and property damage insurance, including medical payments insurance, in an amount to be determined by the Board from time to time, covering all occurrences commonly insured against for death, bodily injury and property damage arising out of or in connection with the ownership, operation or Maintenance, or other use of Common Areas. This policy shall also cover operation of automobiles on behalf of the Association. (c) Coverage of members of the Board and officers of the Association against libel, slander, false arrest, invasion of privacy and errors and omissions and other forms of liability generally covered in officers and directors liability policies. The Declarant and Declarant's designees shall be included as an additional insured in such Declarant's capacity as a Board Member. (d) Coverage against such other risk of a similar or dissimilar nature as the Board deems appropriate. 8.2 Named Insured and Interests. Policies of insurance shall name the Association as the insured and the entity to which payment is to be made. The certificate or memoranda of insurance, duplicate originals of all policies and renewals, and proof of payment of premiums shall be issued to the Association, and upon request, to any Owner or Mortgagee. 8.3 Invalidation or Reduction of Coverage. Insurance policies carried pursuant to this section must provide the following: (a) that the insurer waives its right to subrogation under the policy against any Owner, any lessee and their families; (b) that no act or omission by any occupant will void the policy or be a condition to recovery under the policy, unless that person is acting within the scope of his authority as an officer of the Association or as a member of the Board; (c) that if, at the time of a loss under the policy, there is other insurance in the name of an Owner or any lessee covering the same property covered by the policy, the policy is primary insurance not contributing to the owner's individual insurance; and (d) that each Owner is an insured person under the policy with respect to liability arising out of such Owner's membership in the Association. ARTICLE 9 DAMAGE. DESTRUCTION AND OBSOLESCENCE 9.1 Insurance Proceeds. The Association shall receive the proceeds of any insurance described in Paragraph 9.1(a) purchased by the Association as the owner of the Common Areas. Any proceeds shall be used for the purpose of Maintenance, unless the Owners decide to terminate this Declaration in accordance with the provisions set forth herein. 9.2 Mandatory Maintenance. In the event of damage or destruction due to fire or other disaster, if the insurance proceeds are sufficient to reconstruct the improvements, the Association shall promptly cause such Maintenance to occur. If the insurance proceeds are not sufficient for such purpose, the Association may levy special assessments against the Owners for such deficiency pursuant to this Declaration. 9.3 Payment for Maintenance. The expense of Maintenance shall be payable by all of the Owners as Common Expenses. Assessments for the estimated cost of Maintenance shall be levied pursuant to Article 8 hereof and shall be allocated and collected as provided in that Article. Further levies may be made in like manner if the amounts collected prove insufficient to complete the Maintenance. Dissenting Owners shall 11 not be relieved of their obligation to pay their proportionate share of any Common Expenses. If the Association collects more money pursuant to this Section than is ultimately required for Maintenance, the Association shall return such excess to the Owners by a credit against the next installments of the annual assessment, or by a cash distribution to each Owner, in an amount proportionate to the respective amount collected from each Owner. The Association shall have full authority, right, and power to maintain, repair or replace the improvements on the Common Areas notwithstanding the failure of an Owner to pay the assessment. ARTICLE 10 TAKING OF COMMON AREAS BY EMINENT DOMAIN If any portion of all of the Common Areas is taken or condemned by any authority having the power of eminent domain, all compensation and damages on account of the taking of the Common Areas, exclusive of compensation for consequential damages to affected Lots, shall be payable to the Association as Owner of the Common Areas. Such proceeds shall be used promptly by the Association to the extent necessary for repair and reconstruction of such remaining Common Areas in as substantial compliance to the original plan of development as possible. If there is an award in excess of the amount necessary to so substantially repair or reconstruct such remaining Common Areas, it shall, at the Board's discretion, be either refunded or retained by the Association for such uses as it deems appropriate. ARTICLE 11 TERM, REVOCATION AND AMENDMENT OF DECLARATION 11.1 Term Of Declaration. The term of this Declaration shall be perpetual. 11.2 Revocation of Declaration. Except as restricted by the laws of the State of Colorado and Paragraph 11.4 below, this Declaration may be revoked if seventy percent (70%) of the ownership interests in the Common Areas agree to such revocation by an executed, acknowledged instrument recorded in the offices of the Clerk and Recorder of Garfield County, Colorado. The prior written approval of sixty percent (60%) of the First Mortgagees of Common Areas will be required for any such revocation, except in the case of obsolescence, substantial destruction by fire or other casualty, taking by condemnation or eminent domain, or abandonment or termination provided by law. 11.3 Disbursement of Proceeds. Upon revocation of this Declaration, the Common Areas shall be sold by the Association, in whole or in parcels, as the Board may deem appropriate. All sales proceeds and all amounts recovered under any insurance policy shall be allocated among the Owners in the same proportion as is set forth in Paragraph 5.1 hereof. The funds shall be disbursed, without contribution from one Owner to another, by the Association for the following purposes and in the following order: (a) payment in full of the customary expenses of sale; (b) payment in full of the allocable taxes and special assessment liens in favor of any governmental assessing entity; (c) payment in full of the balance of the lien of any First Mortgage on the Common Areas; (d) payment in full of allocable unpaid Common Expenses and the unpaid costs, expenses, and fees incurred by the Association; 12 (e) payment in full of recorded junior liens and encumbrances on the Common Areas in the order of and to the extent of their priority; and (0 payment of any balance to the Owners. 11.4 Amendment of Declaration. Except as restricted by the terms of the laws of the State of Colorado, this Declaration may be amended if the Owners holding two-thirds (2/3) or more of the votes outstanding and entitled to be cast under the Bylaws agree thereto by an executed, acknowledged instrument recorded in the office of the Clerk and Recorder of Garfield County, Colorado. The prior written approval of sixty percent (60%) of the First Mortgagees of all Lots and will be required for any such amendment to take effect. No amendment to the Declaration may be made without Declarant's prior written consent. ARTICLE 12 MISCELLANEOUS 12.1 Declarant's Rights Transferable. Any right or interest of the Declarant established or reserved in this Declaration may be transferred by Declarant either separately or with one or more of such rights or interests pursuant to the provisions of the laws of the State of Colorado. 12.2 Provisions Incorporated in Deeds. Each provision contained in this Declaration shall be deemed incorporated in each or other instrument by which any right, title or interest in the Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. 12.3 Number and Gender. Unless the context shall otherwise provide, a singular number shall include the plural, a plural number shall include the singular, and the use of any gender shall include all genders. 12.4 Construction. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development of certain common facilities and functions and for the Maintenance of the Common Areas. 12.5 No Dedication. Nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any part of the Property to the public or for any public use. 12.6 Notices. Any notice permitted or required to be delivered as provided in this Declaration shall be in writing and may be delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered 48 hours after a copy of the same has been deposited in the United States mail, postage prepaid for first class mail and addressed to the receiving party at the address last given by such party to the Association. Any notice to the Association shall be sent to such address as it may from time to time designate in writing to each Owner or if not so designated, to its last known address. 12.7 Mortgagee Notice Rights. Any First Mortgagee will, upon request, be entitled to: (a) inspect the books and records of the Association during normal business hours; (b) receive financial statements of the Association within 90 days following the end of any fiscal year; and (c) receive written notice of meetings of the Association and be permitted to designate a representative to attend all such meetings. 12.8 Successors and Assigns of Declarant. Any rights or responsibilities granted or retained by Declarant under these Covenants shall inure to and be binding upon any successors in interest or assigns of Declarant, and any person or entity which accedes to the rights and obligations of Declarant with respect to the real property governed by this Declaration, including all affiliates of Declarant; and such rights and obligations shall become the obligations of such successor or assign, at which time the Declarant shall be relieved of any 13 and all such obligations and liabilities except as may be otherwise provided by the laws of the State of Colorado. 12.9 Disclaimer. No representations or warranties of any kind, express or implied, have been given or made by Declarant or its agents or employees in connection with the Property, or any portion thereof, or any improvement thereon, its physical condition, zoning, compliance with the applicable laws, fitness or intended use, or in connection with the Subdivision's sale, operation, Maintenance, costs of Maintenance, taxes or regulations hereof, except as expressly set forth in this Declaration. 12.10 Limited Liability. The Association and the Board shall not be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice. The Owners severally agree to indemnify the Association and the Board against loss resulting from such action or failure to act if the Association and the Board acted or failed to take action in good faith without malice. (a) Except as otherwise provided by the laws of the State of Colorado or by this Declaration for Board members and officers appointed by the Declarant, neither the Association nor its past, present or future officers, directors, nor any other employee, agent or committee member of the Association shall be liable to any Owner or to any other person for actions taken or omissions made except for wanton and willful acts omissions. Without limit to the foregoing, the Association and the Board shall not be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice. Acts taken upon the advise of legal counsel, certified public accountants, registered or licensed engineers, architects or surveyors shall conclusively be deemed to be in good faith and without malice. To the extent insurance carried by the Association for such purposes shall not be adequate, the Owners severally agree to indemnify the Association or Board against loss resulting from such action or failure to act, provided that the Association and the Board acted or failed to act in good faith and without malice. (b) Any member or officer of the Association appointed by the Declarant as provided for herein shall exercise in the performance of their duties the standard of care required of fiduciaries of the Owners. 12.11 Severability. Invalidation of any one of the provisions of this instrument by judgment or by court order or decree, shall in no way affect the validity of any of the other provisions hereof which shall remain in full force and effect. 12.12 Rule Against Perpetuities. If any of the terms, covenants, conditions, easements, restrictions, uses, limitations or obligations created by this Declaration shall be unlawful or void for violation of: (a) the rule against perpetuities or some analogous statutory provision; (b) the rule restricting restraints on alienation; or (c) any other statutory or common law rules imposing like or similar time limits, such provisions shall continue only for the period of the life of Bernard R. Long, his now living descendants, and the survivor of them, plus twenty-one (21) years. 12.13 Run With The Land. Declarant, for itself, its successors and assigns, hereby declares that all of the Long Subdivision shall be held, used and occupied subject to the provisions of this Declaration, and to the covenants and restrictions contained herein, and that the provisions hereof shall run with the land and be binding upon all persons who hereafter become the Owner of any interest of any land or estate within the Long Subdivision. 14 IN WITNESS WHEREOF, Declarant has executed this Declaration the day and year first above written. Bernard R. Long Martha Long Kevin Long STATE OF COLORADO ) ) Ss. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me this day of , 1998, by Bernard R. Long and Martha Long and Kevin J. Long, the Declarants. Witness my hand and official seal. My commission expires: Notary Public