HomeMy WebLinkAbout7 RFPreserve_CC&Rs1111111E1111111E1111 r' 111111 111 11111 1111 101
604486 05/31/2002 09 54A B1359 P128 M ALSDORF 1
of 44 R 220.00 0 0 00 GARFIELD COUNTY CO
RESTATED
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND
EASEMENTS FOR ROARING FORK PRESERVE SUBDIVISION
ROARING FORK PRESERVE, LLC, a Colorado limited liability company
("Declarant"), as owner of certain real property in the County of Garfield, State of
Colorado, known as Roaring Fork Preserve Subdivision, as depicted on the Plat of
same recorded on May 23, 2002, as Reception No. 603992 in the records of the Clerk
and Recorder of Garfield County, Colorado ("the Plat"), and described in Exhibit A
attached hereto and incorporated herein by this reference ("the Property"), desires to
create a Common Interest Community, to be known as Roaring Fork Preserve
Subdivision, in which certain common property will be owned by the Roaring Fork
Preserve Homeowners Association, a Colorado non-profit corporation, its successors
and assigns (the "Association"). Declarant makes the following declarations:
ARTICLE 1
STATEMENT OF PURPOSE AND IMPOSITION OF COVENANTS
1.1 Imposition of Covenants. Declarant hereby makes, declares, and
establishes the following covenants, conditions, restrictions and easements
("Covenants") which shall affect all of the Property. From this day forward, the
Property shall be held, sold and conveyed subject to these Covenants. These
Covenants shall run with the land and shall be binding upon all persons or entities
having any right, title or interest in all or any part of the Property, including
Declarant, and their heirs, successors, assigns, tenants, guests and invitees. These
Covenants shall inure to and are imposed for the benefit of all Lot Owners of parcels
of land located within the Property. These Covenants create specific rights and
privileges which shall be shared and enjoyed by all owners and occupants of any part
of the Property. Declarant hereby submits Roaring Fork Preserve Subdivision to the
provisions of the Colorado Common Interest Ownership Act, Sections 38-33.3-101,
et. seq., Colorado Revised Statutes, as it may be amended from time to time (the
"Act"). In the event the Act is repealed, the Act, on the effective date of this
Declaration, shall remain applicable.
1.2 Declarant's Intent. Declarant wishes to ensure the attractiveness of
individual Lots and Improvements to be made within the Property, to prevent any
future impairment of the Property, and to preserve, protect and enhance the values
and amenities of the Property as a highly desirable, scenic and exclusive residential
area. It is the intent of Declarant to preserve the present beauty and views and to
guard against the construction on the Property of Improvements built of improper or
unsuitable materials or with improper quality or methods of construction. Declarant
intends to encourage the construction of attractive permanent Improvements of
advanced technological, architectural and engineering design, appropriately located to
preserve the harmonious development of the Property.
ARTICLE 2
DEFINITIONS
Each capitalized term not otherwise defined in this Declaration or on the Plat
shall have the meanings specified or used in the Act. The following terms, as used
in this Declaration, are defined as follows:
2.1 "Act" shall mean the Colorado Common Interest Ownership Act, as in
effect from time to time including any amendments to or replacements thereof. Any
reference to a particular section of the Act shall include any amendments to or
replacements of such section. When this Declaration makes reference to defined
terms appearing in the Act such terms shall, unless otherwise provided, have the
same meaning as provided in the Act.
2.2 "Annual Assessments" shall mean the charges levied and assessed each
year against a Lot.
2.3 "Articles" shall mean Articles of Incorporation and any amendments
thereto for the Roaring Fork Preserve Homeowners Association, a Colorado nonprofit
corporation.
2.4 "Assessments" shall mean Annual Assessments and Special
Assess-ments.
2.5 "Assessment Lien" shall mean the statutory lien for payment of
Assessments provided by the Act.
2.6 "Association" shall mean the Roaring Fork Preserve Homeowners
Association, a Colorado nonprofit corporation, formed and incorporated to be and
constitute the Association to which reference is made in this instrument to further the
common interests of owners of all property within the Roaring Fork Preserve
Subdivision.
2.7 "Board or Executive Board" shall mean the governing board of the
Association.
2.8 "Bylaws" shall mean the bylaws adopted by the Association and any
amendments thereto. In the event of any inconsistency or conflict between the
Bylaws and the Declaration, the provisions of the Declaration shall control.
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2.9 "Common Elements" shall mean the real property, other than Lots,
within the Roaring Fork Preserve Subdivision owned, leased, or maintained by the
Association, together with water rights and property rights owned by the Association.
2.10 "Common Expenses" shall mean estimated and actual expenditures
made or to be made by or on behalf of the Association, together with any allocations
to reserve or sinking funds.
2.11 "County" shall mean Garfield County, Colorado.
2.12 "Declarant" shall mean Roaring Fork Preserve, LLC, a Colorado limited
liability company and any party designated as a successor or assign of the Declarant
by a written instrument duly recorded in the real estate records of Garfield County,
Colorado. Such instrument may specify the extent and portion of the rights or
interests being assigned by Declarant.
2.13 "Declaration" shall mean this Restated Declaration of Covenants,
Conditions, Restrictions and Easements for Roaring Fork Preserve Subdivision as
recorded in the real estate records of Garfield County, Colorado, and as amended
from time to time. Reference to this Declaration shall include the Plat, which is
incorporated herein.
2.14 "Design Guidelines" shall mean the rules and regulations adopted by the
Association in conformance with and pursuant to this Declaration to maintain the
quality and architectural harmony of Improvements in Roaring Fork Preserve
Subdivision.
2.15 "Improvements" shall mean all buildings, parking areas, fences, walls,
hedges, plants, poles, antennae, driveways, signs, changes in any exterior color or
shape, excavation and all other site work, including, without limitation, grading,
roads, utility improvements, and removal of trees or plants. "Improvements" do
include both original improvements and all later changes and improvements.
"Improvements" do not include turf, shrub or tree repair or replacement of a
magnitude which does not change exterior colors or exterior appearances.
2.16 "Lot" shall mean any lot shown on the Plat of Roaring Fork Preserve
Subdivision which may be conveyed in conformance with the laws of the State of
Colorado. For purposes of conforming the terms and provisions of this Declaration
to the terms and conditions of the Act, the term "Lot" shall be analogous to the term
"Unit" as that term is defined in the Act.
2.17 "Lot Owner" shall mean an owner of a Lot shown on the Plat of Roaring
Fork Preserve Subdivision. For purposes of conforming the terms and provisions of
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this Declaration to the terms and conditions of the Act, the term "Lot Owner" shall
be analogous to the term "Unit Owner" as that term is defined in the Act.
2.18 "Mortgage" shall mean any mortgage, deed of trust or other security
instrument creating a real property security interest in any Lot, excluding any
statutory, tax or judicial liens.
2.19 "Mortgagee" shall mean any grantee or beneficiary of a Mortgage.
2.20 "Mortgagor" shall mean any grantor or trustor of a Mortgage.
2.21 "Plat" shall mean the Final Subdivision Plat for Roaring Fork Preserve
Subdivision recorded May 23, 2002, as Reception No. 603992 of the real estate
records of Garfield County, Colorado, and any amendments thereto as may be duly
approved by the County and recorded in the real estate records of Garfield County.
By this reference, the Plat is incorporated herein.
2.22 "Special Assessments" shall mean any special or extraordinary
Assessment levied and assessed pursuant hereto.
2.23 "Roads" shall mean the roads shown on the Plat.
ARTICLE 3
DESCRIPTION OF COMMON INTEREST COMIVIUNITY
3.1 Maximum Number of Lots. The maximum number of Lots in Roaring
Fork Preserve Subdivision is nine (9) single family Lots.
3.2 Common Elements. The Common Elements include:
A. All ditch and water rights appurtenant to or used upon or in
connection with the Property, including 51.9% of a 1/4 interest in the Slough Ditch
with the water and ditch rights appurtenant thereto.
B. All access, pedestrian, ditch and utility easements depicted on
the Plat of Roaring Fork Preserve Subdivision and other easements depicted on said
Plat or described below, all of which are designated by this Declaration for the
common use and enjoyment of Lot Owners and their families, tenants, guests and
invitees, and emergency service providers, but not for the public. The Association,
subject to the rights and obligations of the Lot Owners set forth in this Declaration,
shall be responsible for the management and control of the Common Elements.
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C. All domestic water wells, permits, appurtenant equipment and
common water storage tanks for fire protection purposes.
3.3 Allocated Interests. The undivided interest in the Common Elements,
the Common Expense liability, and votes in the Association allocated to each Lot
Owner shall be allocated to each Lot and calculated as follows:
A. the undivided interest in Common Elements, on the basis of an
equal interest for each Lot;
B. the percentage of liability for Common Expenses, on the basis
of equal liability for each Lot; and
C. the number of votes in the Association, on the basis of one vote
per Lot.
3.4 Conveyance of Water Rights. Prior to the sale of any lots, Declarant
shall transfer to the Association by quit claim deed all water and water rights
appurtenant to the Property described in Section 3.2 above. Such water and water
rights shall be held by the Association in trust for the use and benefit of the Lot
Owners and shall not be sold, leased, conveyed or encumbered by the Association.
3.5 Irrigation Water Rights. The Declarant obtained by quit claim deed
51.9% of a one-quarter (Y4) interest in and to those certain water rights decreed to
the Slough Ditch and Banning Lateral decreed in Garfield County, Colorado. This
water right shall be conveyed by quit claim deed from Declarant to the Association
immediately following the recordation hereof. The Association shall pay all ditch
assessments and shall be responsible to operate, repair and maintain said ditch for
the benefit of itself and the Lot Owners. The Association shall use said irrigation
right for the irrigation of the open space depicted as "irrigation easement" on the plat
at the entry into the subdivision and shall coordinate the use of said rights for the
irrigation of individual Lots in an amount as may be designated by the Association
on a year to year basis. Each Lot Owner will observe the following:
A. Each Lot Owner shall adhere to the terms of any water rights
decrees and permits affecting water service on and to the Property and other water
rights arising on or carried through the Property, including carriage rights of other
owners of interest in the Slough Ditch;
B. Without limiting the foregoing, the utilization of irrigation water
from the Slough Ditch shall be coordinated with the other owners of interests in such
water rights which include access easements for pipelines and along ditch rights of
way for repair, cleaning and maintenance;
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C. The irrigation system shall be regulated and operated at all
times in a manner so as to balance the use of the irrigation water by all persons
entitled to the benefit of such water;
D. Any capital improvements or modifications required to the
irrigation system due to any change to residential use made on Lots 1 through 9 shall be
paid exclusively by the Association if for the benefit of all such Lots, and if less than
all such Lots will be benefitted, then proportionately by the Lot Owners making such
capital improvements or modifications. In no event shall the remaining owners of
interests in the irrigation system be charged for such capital improvements or
modifications;
E. Each Lot Owner shall own and be responsible for all costs,
expenses and liabilities for ditch laterals which run from such Lot Owner's point of
connection and connect to the Association's distribution ditches and any other costs
associated with use of irrigation water on the Owner's Lot;
F. The Association may establish charges for water usage based on
consumption such that the irrigation system will be independently supported with
adequate reserves for capital replacements;
G. The Association, upon reasonable notice, through its agents,
shall have full and free access at all reasonable hours to read meters, examine water
facilities, determine water usage and take other necessary actions to assure
compliance with the rules of the Association, provided that in the event of
emergency, based on a good faith determination by the Association, reasonable
notice shall not be required, if impractical;
H. The Association shall have the right upon reasonable notice, to
shut off or curtail diversions of irrigation water for violation of these Covenants or
any Association rules.
3.6 Easements. Easements for all existing irrigation ditches over and across
the Property shall be recognized and maintained as shown on the final Plat. In
addition, the Association shall have the ability to construct lateral ditches over and
across the irrigation easements, roads and any Lot to effectively convey water to each
individual Lot for irrigation and/or for filling a pond on the individual Lots. All Lots
shall be subject to the right of the Association to so construct, operate, maintain,
repair and replace lateral ditches. Such lateral ditches may be located by the
Association for the benefit of one or more of the Lots anywhere on each of the Lots
so long as said location does not unreasonably interfere with existing Improvements
(not including landscaping) or the placement of Improvements in the building
envelope for the Lots. All Lot Owners shall own their Lots subject to the right of the
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Association's ability to construct, operate, maintain and repair lateral ditches to
convey Slough Ditch water across their Lots. All ditch easements shall be of a width
of forty (40) feet, twenty (20) feet either side of centerline unless otherwise
specified. The irrigation easement depicted on the Plat at the entry into the property
from County Road 100 shall include the right of the Association to construct and
maintain entry features, including signage, ponds, fencing and landscaping.
3.7 Pond. Each Lot Owner may file for and obtain water rights and an
augmentation plan for a pond to be located on his Lot. Such pond may be filled with
the Slough Ditch and Banning Lateral and/or groundwater, at the Lot Owner's sole
discretion and cost. In the event that the pond is to be filled with the Slough Ditch,
the Lot Owner shall be subject to all other senior water rights in said ditch and shall
be entitled to use said structure only in the event that there is existing excess capacity in
the ditch at any time without enlargement of the ditch structure. Such pond and
water right shall be owned by the individual Lot Owner and that Lot Owner shall be
solely responsible for the operation, maintenance, repair and replacement of said
pond at the Lot Owner's sole expense. The construction, installation and use of said
pond shall not interfere with any other Lot or other property of the Association. The
construction, installation and use of said pond shall not interfere with any other Lot or
the common open space or other property of the Association. No Lot Owner shall be
allowed to interfere with or change the natural or then existing water drainage
channels or the flow of water or groundwater as it exists or enters any other person's
property, without the consent of the Association, which consent shall not be
unreasonably withheld. Before construction, such Lot Owner shall obtain an
engineering analysis certified by a registered professional engineer which addresses
satisfactorily all possible effects of building the pond and storing water as to any
other Lot owner. Such report shall be provided to the Association for its review
before construction may occur. The Association shall have sixty (60) days to review
and provide comment and suggestions to the Lot Owner. The pond shall be
constructed to allow water to circulate or continuously flow through to prevent water
stagnation. Additionally, the pond shall be filled from time to time in ordef to
maintain the water level and thus the aesthetic quality of the pond as to other Lot
Owners.
3.8 Road Access. The roads depicted on the Plat for access to Roaring Fork
Preserve Subdivision to be known as Ponderosa Pines Way, Weeping Willows Lane,
and Silver Spruce Drive shall be dedicated to the public by Declarant. The
Association shall be responsible for the operation and maintenance of said roads in
conjunction with other users as set forth in a road maintenance agreement. The
Association shall not be responsible for maintenance of private drives located on any
Lot. The Executive Board shall cooperate with the applicable traffic and fire control
officials, and shall post the road with required traffic control, fire lane, and parking
regulation signs. Association costs of the operation and maintenance of the roads
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shall be borne equally by the Lot Owners of Lots 1 through 9 regardless of the length
of road serving a particular Lot.
3.9 Recorded Easements. The Property, and all portions thereof, shall be
subject to all easements shown on the recorded Plat affecting the Property, or any
portion thereof, and to any other easements of record as of the . date of the
recordation of this Declaration.
3.10 Utility Easements. Declarant reserves to Declarant and hereby grants
to the Association a general non-exclusive easement upon, across, over, in and under
the easements as shown and depicted on the Plat for ingress and egress and for
installation, replacement, repair and maintenance of all utilities, including, but not
limited to, domestic and irrigation 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 the easement. All water, sewer, gas, telephone,
electrical, or communications lines, systems, or facilities shall be installed or
relocated below the surface of any Property, except for necessary surface facilities.
Such utilities may be installed temporarily above ground during construction, if
approved by the Declarant or the Association. Any utility company using this general
easement shall use its best efforts to install and maintain the utilities provided for
without disturbing the uses of the Lot Owners, the Association and Declarant; shall
prosecute its installation and maintenance activities as promptly and expeditiously
as possible; and shall restore the surface to its original condition as soon as 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 or
all of the Property without conflicting with the terms of this Declaration. This
general easement shall in no way affect, avoid, extinguish or modify any other
recorded Easement on the Property. All service connections to primary utility lines
(including water curb stops, gas shutoff valves, electrical transformers and telephone
pedestals) serving each Lot shall be the responsibility of the Lot Owner.
3.11 Emergency Access Easement. A general easement is hereby granted to
all law enforcement, fire protection, ambulance and all other similar emergency
agencies or persons to enter upon the Property in the proper performance of their
duties.
3.12 Maintenance Easement. An easement is hereby reserved to Declarant,
and granted to the Association, its officers, agents and employees, successors and
assigns, upon, across, over, in and under the Property and a right to make such use
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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, including without limitation, any actions in respect to the irrigation
distribution system and individual sewage treatment systems (ISTS).
3.13 Drainage Easement. An easement is hereby 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 the purpose of
changing, correcting or otherwise modifying any existing drainage channels on the
Property to protect the historic drainage pattern of water. The change, correction, or
modification shall not unreasonably interfere with existing Improvements (not
including landscaping) or the placement of Improvements in the building envelope
for the Lots. Reasonable efforts shall be made to use this easement so as not to
disturb the uses of the Lot Owners, the Association and Declarant, as applicable, to
the extent possible; to prosecute such drainage work promptly and expeditiously; to
avoid interference with existing structures; and to restore any areas affected by such
work to the condition existing before the work as soon as possible following such
work. Declarant and Declarant's agents, employees, successors and assigns must
inform and obtain the written approval of the Executive Board and any affected
property owner. Such approvals shall be obtained prior to undertaking such
drainage work, which approvals shall not be unreasonably withheld.
3.14 Pedestrian Easement. A pedestrian easement for the sole benefit of
members of the Association which provides access to the Roaring Fork River has been
dedicated on the subdivision Plat. This easement allows for access to the Roaring
Fork River adjacent to lands within the subdivision. Unless otherwise prohibited by
law, a fisherman who has legal access to the river may wade within the river channel.
However, fishing from the river bank on any property requires permission of that
property owner. This easement may be used by pedestrians only, and use by motor
vehicles or horses is prohibited.
3.15 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 3 even
though no specific reference to such easements or to this Declaration appears in the
instrument for such conveyance.
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ARTICLE 4
THE ASSOCIATION
4.1 Formation of Association. The Association shall be a nonprofit
Colorado corporation charged with the duties and invested with the powers
prescribed by law and as set forth in its Articles, Bylaws, this Declaration and the Act.
The Association shall be a master association acting in the capacity of an association
described in Section 38-33.3-301 of the Act and may exercise all of the powers
described in Section 38-33.3-302. Neither the Articles nor Bylaws of the Association
shall, for any reason, be amended or otherwise changed or interpreted so as to be
inconsistent with this Declaration.
4.2 Membership. Every person, by virtue of being a Lot Owner and while
such person is a Lot Owner, shall be a member of the Association. Membership shall
be appurtenant to and may not be separated from ownership of any Lot. No Lot
Owner, whether one or more persons, shall have more than one membership per Lot
owned, but all of the persons owning each Lot shall be entitled to rights of
membership and use and enjoyment appurtenant to such ownership. The Associa-
tion shall be a membership association without certificates or shares of stock. The
membership of the Association shall at all times consist exclusively of all Lot Owners.
Membership in the Association shall automatically terminate when a Lot Owner
ceases to be an owner of a Lot.
4.3 Authority. The business affairs of Roaring Fork Preserve Subdivision
shall be managed by the Executive Board of the Association, and such officers as the
Executive Board may elect or appoint in accordance with the Articles and Bylaws as
the same may be amended from time to time. The Association by and through the
Executive Board shall govern and manage all Property conveyed or leased by
Declarant, other than the individual Lots, the Common Elements and any other
Association property and shall enforce the provisions of this Declaration.
4.4 Powers. The Association shall have all of the powers and authority
permitted under the Act necessary and proper to manage the business and affairs of
Roaring Fork Preserve Subdivision. Such powers shall include, without limitation,
levying Assessments against Lot Owners, imposing a lien on Lots for any unpaid or
uncollected Assessments or penalties, and foreclosing any such liens, enforcing any
deed restrictions and covenants, acquiring, holding, owning, leasing, mortgaging and
disposing of property, the adoption of rules and regulations, the defending,
prosecuting or intervention in litigation on behalf of all members, 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
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lender as security for repayment thereof. The Association shall also have the power to
enforce all provisions of this Declaration, including without limitation, Articles 8:10
and 8.11 hereof. The Association may exercise any other right, power or privilege
given to it expressly by this Declaration, the Articles and Bylaws, or by the Act, and
every other right, power or privilege reasonably to be implied from the existence of
any right, power or privilege given to it herein or reasonably necessary to effectuate
any such right, power or privilege.
4.5 Declarant Control. The 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 as defined in the Articles and Bylaws until the conveyance by the
Declarant of six (6) of the nine (9) Lots, anything in the Act to the contrary
notwithstanding. Declarant may voluntarily surrender the right to appoint and
remove officers and members of the Executive Board before termination of the
foregoing period of Declarant control, but in that event, the Declarant may require
for the duration of the period of Declarant control that any action specified in the
document by which Declarant voluntarily surrenders such rights be approved by the
Declarant prior to any such action becoming effective.
4.6 Association Rules. The Association may from time to time adopt,
amend and repeal rules and regulations to be known as the "Roaring Fork Preserve
Homeowners Association Rules" by a majority vote of the Executive Board. The
purpose of the Association Rules shall be to implement, supplement or otherwise
carry out the purposes and intentions of this Declaration. Rules shall not be
inconsistent with this Declaration.
4.7 Limited Liability. A. Except as otherwise provided in the Act or this
Declaration for Executive 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
Lot Owner or to any other person for actions taken or omissions made except for
wanton and willful acts or omissions. Without limit to the foregoing, the Association
and the Executive Board shall not be liable to any party for any action or for any
failure to act with respect to any matter if the action taken or failure to act was in
good faith and without malice. Acts taken upon the advice of legal counsel, certified
public accountants, registered or licensed engineers, architects or surveyors shall
conclusively be deemed to be in good faith and without malice. To the extent
insurance carried by the Association for such purposes shall not be adequate, the Lot
Owners severally agree to indemnify the Association or Executive Board against loss
resulting from such action or failure to act, provided that the Association and the
Executive Board acted or failed to act in good faith and without malice. Any
Executive Board member or officer of the Association appointed by the Declarant as
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provided for herein shall exercise in the performance of their duties the standard of
care required of fiduciaries of the Lot Owners.
4.8 Association Records. The Association shall maintain financial records
sufficient to enable the Association to carry out its responsibilities under this
Declaration and to comply with the requirements of the Act. All financial and other
records shall be made reasonably available for examination by any Lot Owner and
such Lot Owner's authorized agents.
4.9 Association Contracts. To the extent the Executive Board so elects, the
Association may enter into or accept the assignment of contracts to provide functions
or services for the benefit of or relating to the Roaring Fork Preserve Subdivision.
Such contractual obligations may be provided by the Association's employees or an
independent contractor retained by the Association. To the extent provided in any
such contract, the Executive Board shall charge and collect any fees or reimburse-
ments provided by such contracts.
4.10 Other Association Functions. The Association may undertake, to the
extent the Executive Board in its sole discretion so elects, to provide functions or
services for the benefit of all, or some, Lot Owners on such basis as the Executive
Board may reasonably determine. Such functions or other services may be provided
by the Association's employees or an independent contractor retained by the
Association.
4.11 Notice to Maintain. A Lot Owner shall immediately report to the
Association, in writing, the need for any maintenance, repair or replacement 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 said maintenance,
repair or replacement, the good faith decision of the Executive Board shall be final.
4.12 Mechanics' Liens. Declarant shall be responsible for the release of all
mechanics' liens filed with respect to the Association property, 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
Executive Board, no labor performed or materials furnished with respect to
Association property or Lots shall be the basis for filing a lien against any Association
property. No labor performed or materials furnished at the instance of the Executive
Board shall be the basis for filing a lien against any Lot.
4.13 Certain Provisions Regarding Association Property. Property Conveyed
or Leased by Declarant and any other Association property, including but not limited
to, Common Elements, the Roads, pedestrian and utility easements shall, at all times,
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be owned, operated, maintained and exercised by the Association consistent with the
provisions of this Declaration, the Plat and the Act and in trust for the use, benefit
and enjoyment of Lot Owners entitled to such use, benefit and enjoyment and their
family members, guests and invitees. The Association may not convey or subject to a
security interest any real property owned or leased by the Association without the
prior written consent of sixty-six and two-thirds percent (662/3%) of all Lot Owners
and with regard to any such conveyance or security interest shall otherwise comply
with the provisions of the Act.
4.14 Voting. Except as otherwise provided in this Section 4, a Lot Owner
shall have one (1) vote allocated of each Lot owned and the affirmative vote of a
majority of the total of all Lot Owners constituting a quorum in person or by proxy
and entitled to vote on any matter shall constitute approval of such matter unless a
different number is required on a particular matter by the Act, this Declaration, the
Articles or the Bylaws. Where there is more than one Owner of a Lot, the several
record Owners of such Lot shall be required to designate, by prior written notice to
the Association, the particular Lot Owner who shall cast the votes appurtenant to that
Lot. If the several Owners of any Lot are unable or unwilling to designate a
particular Lot Owner to vote, then the membership appurtenant to that Lot, shall not be
entitled to vote on any Association affairs until such designation is made.
4.15 Quorum. A quorum is deemed present throughout any meeting of the
Association if members entitled to cast (or proxies entitled to cast) fifty percent
(50%) of the votes of the Association are present at the beginning of the meeting. If,
however, such quorum is not present or represented at the meeting, the members
entitled to vote at the meeting will have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present or represented by proxy.
ARTICLE 5
COVENANTS FOR COMMON EXPENSE ASSESSMENTS
5.1 Creation of Association Lien and Personal Obligation to Pay Common
Expense Assessments and Special Expense Assessments. Declarant, for each Lot, hereby
covenants, and each Lot 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 annual Common Expense Assessments and Special Expense
Assessments. Such Assessments, including fees, charges, late charges, attorney's
fees, fines and interest charged by the Association shall be the personal obligation
of the Lot Owner at the time when the Assessment or other charges became or
fell due. Two or more Lot Owners of a Lot shall be jointly and severally liable for
such obligations. The personal obligation to pay any past due sums to the Association shall
not pass to a successor in title unless expressly assumed by them.
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The Common Expense Assessments and Special Expense Assessments of the
Association shall be a continuing lien upon the Lot against which each such
Assessment is made. 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 the Declaration; (b) a first lien Security Interest on the Lot recorded
before the date on which the Common Expense Assessment or Special Expense
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
does not prohibit an 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
any Lot shall not affect the Association's lien except that sale or transfer of any 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 any Lot Owner from
continuing liability for any Common Expense Assessments or Special Expense
Assessments thereafter becoming due, nor from the lien thereof.
5.2 Apportionment of Common Expenses. Common Expenses shall be
allocated and assessed against Lots on an equal share for each Lot.
5.3 Purpose of Assessments. Assessments levied by the Association shall
be used exclusively to promote the health, safety and welfare of the residents of
Roaring Fork Preserve Subdivision and for the improvement and maintenance of the
Common Elements, including, but not limited to: taxes and insurance on the
Common ,Elements, reserve accounts, the cost of labor, equipment, materials,
management and supervision, the salary or fee of any manager, utilities, transporta-
tion, professional fees and other customary charges.
5.4 Annual Assessment/Commencement of Common Expense Assessments.
Common Expense Assessments shall be made on an annual basis against all Lots and
shall be based upon the Association's advance budget of the cash requirements
needed by it to provide for the administration and performance of its duties during
such Assessment year. Common Expense Assessments shall be payable in monthly
installments and shall begin on the first day of the month in which conveyance of the
first Lot to a Lot Owner other than the Declarant occurs.
5.5 Effect of Non -Payment of Assessments. Any Assessment, charge or fee
provided for in this Declaration, or any monthly or other installment thereof, which is
not fully paid within ten (10) days after the due date thereof shall bear interest at the
rate as determined by the Executive Board. A late charge of up to five percent (5%)
of each past due installment may also be assessed thereon. Further, the Association
may bring an action at law or in equity, or both, against any Lot Owner
14
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
Lot Owner's Lot. An action at law or in equity by the Association against a Lot
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. The
delinquent member shall also be liable for all costs, including attorneys' fees, which
may be incurred by the Association in collecting a delinquent Assessment. The
Executive Board may also record a Notice of Delinquent Assessment or charge against
any Lot as to which an Assessment or charge is delinquent. The Notice shall be
executed by an officer of the Executive Board, set forth the amount of the unpaid
Assessment, the name of the delinquent Lot Owner and a description of the Lot. The
Assessment Lien may be foreclosed by the Association in the same manner as a
Mortgage on real property. The Association shall be entitled to purchase the Lot at
foreclosure. The Executive Board may establish a fixed fee to reimburse the
Association for the Association's cost in preparing and recording such notice,
processing the delinquency and recording a release of said lien, which fixed fee shall be
treated as part of the delinquent Assessment secured by the Assessment Lien. The
Association may bring an action at law against the Lot Owner personally obligated
to pay the delinquent Assessment and/or foreclose the lien against said Owner's Lot.
No Lot Owner may waive or otherwise avoid liability for the Assessments provided
for herein by non-use of the benefits derived from Assessments or abandonment of
his Lot. No delinquent member shall be entitled to vote on any Association matters
until the Assessment due, with interest and all other costs, shall be paid in full.
Where Assessments due from any member are more than six (6) months delinquent,
the Association may temporarily cut off any or all Association services or benefits,
until all delinquent Assessments are fully paid.
5.6 Working Fund. The Association or Declarant shall require the first Lot
Owner of each Lot (other than Declarant) to make a non-refundable payment in the
minimum amount of $2,500.00 per Lot to the Association, which sum shall be held,
without interest, by the Association as a "working fund." The working fund shall be
collected and transferred to the Association at the time of closing of each sale by
Declarant of each Lot and shall be maintained for the use and benefit of the
Association. Such payment shall not relieve a Lot Owner from making regular
payments of the Assessments when due. Upon the transfer of a Lot, a Lot Owner of
same shall be entitled to a credit from the transferee for any unused portion of the
working fund.
5.7 Special Expense Assessments. In addition to the Annual Assessment
authorized above, the Association may levy, in any Assessment period, a Special
Expense Assessment for the purpose of defraying, in whole or in part, the cost of any
construction, reconstruction, repair or replacement of a capital improvement, or for
15
other extraordinary expenses, provided that such Special Expense Assessment shall
not exceed Twenty -Five Thousand and No/100 U.S. Dollars ($25,000.00) (except in
the event of an emergency where there shall be no such limit). Special Expense
Assessments shall be allocated as provided herein. For purposes of this section, the
term "emergency" shall mean any circumstances or set of circumstances which poses
an imminent threat of loss or damage, actual or threatened, to persons or property.
Nothing contained herein shall allow the Declarant or the Association the ability to
levy a Special Assessment for the construction of any capital improvement which the
Declarant is required or committed to construct for the Property.
ARTICLE 6
DESIGN REVIEW
6.1 Design Guidelines. The Association shall adopt, establish and publish
from time to time Design Guidelines. The Design Guidelines shall not be inconsistent
with this Declaration, but shall more specifically define and describe the design
standards for Roaring Fork Preserve Subdivision. The Design Guidelines shall
include the requirement that all residential dwellings shall include individual fire
protection sprinklers, pursuant to NFPA Standard 13D, National Fire Protection
Association, as the same may be amended from time to time. The Association may
also 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 Roaring Fork Preserve Subdivision. The
Design Guidelines may be modified or amended from time to time by the Association.
Compliance with the Association's Design Review process shall not be a substitute
for compliance with applicable governmental building, zoning and subdivision
regulations. Each Lot Owner shall be responsible for obtaining all approvals, licenses
and permits as may be required before commencing construction.
6.2 Design Review. The Association shall review, study and either approve or
reject proposed Improvements in Roaring Fork Preserve Subdivision in compliance
with this Declaration and the Design Guidelines. In any Design Review, the
Association 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 Design Guidelines. The Association'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.
6.3 Design Review Procedures. The President or other executive officer of
the Association shall preside over all meetings for Design Review and shall provide
for reasonable notice to each member of the Association before any such meeting.
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The notice shall set forth the time and place of the meeting, and notice may be
waived by any member. The affirmative vote of the majority of the members of the
Association constituting a quorum either in person or by proxy shall govern its
actions and be the act of the Association. A quorum shall consist of a majority of the
members. Any applicant member seeking a Design Review nevertheless shall be
entitled to vote on any action or decision. The Association may avail itself of
technical and professional advice and consultants as it deems appropriate. The
Association shall make such rules as it may deem appropriate to govern such
proceedings.
6.4 Preliminary Approval. Lot Owners or other entities who anticipate
constructing Improvements on Lots shall be provided with the Design Guidelines and
shall submit preliminary sketches with a site plan of such Improvements to the
Association for informal and preliminary approval or disapproval. All preliminary
site and architectural sketches shall be submitted in at least four (4) sets, and shall
contain sufficient general information on those matters required to be in the
complete architectural and site development plans and specifications to allow the
Association to act intelligently in giving an informed preliminary approval or
disapproval. Persons contemplating the purchase of any Lot may submit preliminary
sketches with site plans for purposes of obtaining an informal approval hereunder.
The Association shall not be committed or bound by any preliminary or informal
approval or disapproval.
6.5 Final Approval. At least four (4) complete sets of the architectural and
site development plans and specifications shall be submitted to the Association along
with a complete list of all materials and colors to be used. All copies of the complete
plans and specifications shall be signed for identification by the Lot Owner or his
architect. The Association shall have the right to request whatever additional specific
information, plans, specifications, reports and the like it deems necessary to evaluate
the development proposal throughout the approval and construction process. The
Association shall certify to the Lot Owner, in writing, when the submittal is complete. In
the event the Association fails to take any action within sixty (60) days after four (4)
copies of the complete architectural and site development plans, specifications,
materials and colors have been submitted to it and the submittal has been certified in
writing by the Association as complete, all of such submitted architectural plans shall
be deemed to be approved. The Association shall not unreasonably disapprove
architectural plans. The Association shall disapprove any architectural and site
development plans submitted to it which do not contain sufficient information for it to
exercise the judgment required of it by these covenants.
6.6 Building Permit. A Lot Owner of a Lot may apply for a building permit
from the County at any time; provided, however, the Lot Owner shall have first
received final approval of plans pursuant to the Design Guidelines and the plans
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submitted to the County shall not differ in any way from the plans approved by the
Association. If the plans submitted to the County differ in any way from the plans
approved by the Association, all approvals of the Association shall be deemed
automatically revoked.
6.7 Variances. Subject to any restrictions contained in the governmental
resolutions approving the Roaring Fork Preserve Subdivision or any other applicable
covenants or restrictions, the Association may, by an affirmative vote of sixty six and
two-thirds (66-2/3%) of the members of the Association constituting a quorum either in
person or by proxy at a meeting of the Association, allow variances as to any of the
architectural controls contained in this Declaration and/or policies or rules
promulgated by the Association, or contained in the Design Guidelines, on such
terms and conditions as it shall require. Further, any matter requiring a variance
from County land use, building or zoning regulations shall also require an approval
from the Association.
6.8 General Standards. The Association shall evaluate, among other
things: (i) the materials to be used on the outside of buildings or structures, (ii)
exterior colors, (iii) harmony of architectural design with other structures within the
Roaring Fork Preserve Subdivision, (iv) height and other design features, (v) location
with respect to topography and finished grade elevations, (vi) harmony of
landscaping with the natural setting and native vegetation, and (vii) consistency with
the Design Guidelines.
6.9 Rules and Regulations. The Association may promulgate and adopt
rules and' regulations necessary to implement these covenants. These rules and
regulations may include submission requirements concerning the type of information,
reports, plans and specifications and the like which need to be submitted with any
application or site specific limitations. By way of illustration only and without
requirement to do so, the Association rules and regulations may address and the
Association shall have the power and authority to regulate any or all of the following:
application procedures and processing fees; charges by any outside professionals or
other costs incident to evaluating any application, bonds in the form of cash deposit,
letter of credit or otherwise regarding damage to Roads or other subdivision
infrastructure and for revegetation and restoration of lands; color and materials,
including, but not limited to, roofs, chimneys, siding, masonry and glazing; setbacks,
height limitations, building profiles and driveway locations; construction staging,
construction hours which may be controlled during certain times of the year, storage
for construction materials, location of temporary construction facilities such as
trailers, dumpsters and toilets; routing of utility extensions; drainage, grading and
erosion control; landscape and vegetation, fencing, lighting, signage, and trails;
concerns or objectives regarding maintenance of agricultural lands and preservation
of wildlife; and privacy and visual characteristics. Such rules and regulations shall
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be adopted, amended or replaced by affirmative vote of a majority of the members
of the Association constituting a quorum either in person or by proxy at a meeting
of the Association.
6.10 Written Records. The Association shall keep and safeguard complete
and permanent written records of all approved applications, including one set of the
finally approved architectural and site development plans, and of all actions of
approval or disapproval and all other formal actions taken by it under the provisions
of this instrument.
6.11 Inspection and Compliance. The Association shall have no duty or
obligation to make inspections of any construction; however, nothing herein shall
prevent the Association from making inspections prior to or after completion. Upon
the completion of any work for which approved plans and specifications are required,
the Lot Owner shall give written notice of completion to the Association. Within
thirty (30) days after receipt of such notice, the Association may inspect the work to
determine its compliance with the approved plans. If the Association finds that the.
work was not done in substantial compliance with the approved plans or any
construction or change in natural conditions on any Lot was undertaken without first
obtaining approval from Association, written notice shall be sent by the Executive
Board to such Lot Owner specifying the noncompliance and requiring the Lot Owner
to cure such noncompliance within thirty (30) days or any extension thereof granted.
If the Lot Owner fails to cure the noncompliance or to enter into an agreement to
cure on a basis satisfactory to the Association within said thirty (30) day period or
any extension thereof as may be granted, the Executive Board may, at its option,
cause the noncomplying improvement to be removed or the noncompliance to be
cured. The Lot Owner shall be assessed the costs and expenses incurred by the
Association in taking corrective action, plus all costs incurred, including reasonable
attorneys' fees and costs as a Special Assessment which, without waiver of any other
right or remedy, may be collected as an Assessment Lien. The Lot Owner shall be
personally liable for all such costs and expenses.
6.12 Design Review Expenses. The Association shall have the right to charge a
reasonable fee for each application submitted to it for Design Review, in an amount
which may be established by the Association from time to time, and recover the
reasonable costs and expenses of any technical and professional advice required to
properly consider the application and to generally defray the expenses of the
Association for this purpose.
6.13 Limitation of Liability. The Association shall use reasonable judgment
in accepting or rejecting plans and specifications submitted to it for Design Review.
Neither the Association, Declarant, nor any officer, Executive Board member or
individual Association member, shall be liable to any person for any act of the
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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 specifications, neither the Association nor any of its members shall be
responsible or liable to any Lot 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 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.
ARTICLE 7
CONSTRUCTION AND ALTERATION OF IMPROVEMENTS
7.1 General. The Design Guidelines and the provisions set forth in these
Covenants shall govern the right of a Lot Owner to construct, reconstruct, refinish,
alter or maintain any Improvement upon, under or above any of Roaring Fork
Preserve Subdivision, and to make or create any excavation or fill on Roaring Fork
Preserve Subdivision, or make any change in the natural or existing surface contour
or drainage, or install any utility line or conduit on or over Roaring Fork Preserve
Subdivision.
7.2 Approval Required. No Improvement in Roaring Fork Preserve
Subdivision 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.
7.3 Specific Requirements for Buildings. Subject to governmental
regulations, no buildings shall be placed, erected, altered or permitted to remain on
any Lot other than one (1) building containing a single family dwelling, one (1)
attached or detached garage, and one (1) other non-residential outbuilding other than
a garage not exceeding one thousand five hundred (1,500) square feet. The use of all
buildings must be uses by right or conditional or special uses approved pursuant to
the zoning regulations of the County. All buildings shall be located wholly within
the building envelope designated for a Lot as depicted on the Plat. The building size of
the building containing the principal dwelling on any Lot shall not be less than
three thousand (3,000) square feet nor more than seven thousand (7,000) square
feet, exclusive of all areas utilized for garages and open porches. No structure of any
kind shall be more than twenty-five (25) feet above natural grade. New construction
on each Lot will include plumbing fixtures using low water use
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technology. All Lots will utilize white or earth tones for exterior surfaces and
non-reflective roofing materials. All construction materials shall be new, except for
the limited use of antique treatments, fixtures and accessories. No building or
structure originally constructed at another location shall be moved onto any Lot.
Outside lawn/garden watering shall be limited to seven thousand five hundred (7,500)
square feet per Lot.
7.4 Domestic Water. Domestic water shall be supplied to each Lot by a
domestic water well drilled by the Declarant. The Declarant has obtained a domestic
water well permit for each Lot in the Subdivision, and has drilled a domestic water
well on each Lot pursuant to said permits.
7.5 Ownership and Use of Wells and Appurtenant Facilities. The
Association will own the water tights and the well permits for the benefit of the
Owners of all Lots. The individual Lot Owners using the well shall own the well
facilities, pump, meter and all individual storage tank and pipelines. Each Lot Owner
shall be the sole owner of any facilities used solely by that Lot. The individual Lot
Owners benefitted by any well shall be solely responsible to operate, maintain,
repair, and replace the well, pump, cistern, and water service lines. The Association
shall be allowed a reasonable right of inspection and right of ingress and egress to
and within each Lot for the purpose of inspection or administration or limiting the
operation of individual wells in accordance with the BWCD, well permit and any
subsequent plan for augmentation decreed as the same may be amended and in
accordance with the Articles, Bylaws, and Rules and Regulations of the Association,
and in accordance with these Protective Covenants.
7.6 Operation, Maintenance and Repair Costs. All operation, mainte-
nance, replacement and repair costs associated with any well, the pump, meter,
storage tank and associated facilities for the withdrawal of water from the wells shall be
paid by the Lot Owner using that well. All Lot Owners shall be solely responsible for
the costs of maintenance, operation, repair, and replacement of any facilities used
solely by that party, including individual service lines and storage tanks. The
Association shall be responsible to complete and pay the costs of any maintenance,
operation, repair, replacement, or improvement of common facilities that it
determines is necessary. In the event that the Association does not complete any
required maintenance, repair, replacement, or improvement, any user shall be
entitled to undertake the maintenance, repair, replacement or improvement
necessary and essential for proper functioning of the common facilities and shall be
entitled to reimbursement for the proportionate share of the costs that should be
borne by the other users. Each well owner shall be responsible to maintain and
repair his own well and facilities.
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7.7 Initial Expenses to Install Pump, Meter and Common Pipelines. The
wells have been drilled by Declarant. However should Declarant choose not install a
pump, meter or other common facilities necessary for the use and operation of a
well, a Lot Owner shall at his sole cost install all other workings as may be necessary.
Individual Lot Owners shall install and maintain at their sole expense such measuring
gauges on wells servicing their Lots within the Roaring Fork Preserve as may be
required by the Division Engineer to allow for the operation of the plans for
augmentation. Such measuring devices may include totalizing flow meters on
individual wells.
7.8 Use of Water. The Owner of each Lot shall be entitled to use water
from its respective well for one residential unit, seven thousand five hundred (7,500)
square feet of irrigation each. Lots 3 through 8 shall be entitled to have up to two (2)
horses per Lot and Lot 9 may have up to four (4) horses. An additional dwelling unit
or guest house may be built on Lots for which an accessory dwelling unit has been
approved. All such uses shall be made in accordance with the terms and conditions
of the well permit. Each Lot Owner shall be entitled to use so much of the water from
the well as that party needs so long as diversions from the well at no time exceed the
maximum allowed by the well permit.
7.9 Waste. No Lot Owner shall waste water, and each Lot Owner shall
exercise prudence and conservation in the use of water in order to allow for the
efficient and beneficial use of the well on his Lot.
7.10 Additional Wells. The Association shall allow any Lot Owner to drill an
individual well for his own use for his own Lot at his sole expense. In the event that
an individual Lot Owner wishes to drill his own well, such Lot Owner shall file and
obtain a well permit and an amendment to the Basalt Water Conservancy District
contract (and to bifurcate the contract into separate contracts) and an augmentation
plan, if necessary, at his own expense. Such new well shall be no less than one
hundred (100) feet away from all other wells in the subdivision. All Lot Owners
herein waive their right to have the well drilled at least six hundred (600) feet from
the existing wells. Each Lot Owner shall execute a waiver of six hundred (600) foot
spacing for the Division of Water Resources to allow for the issuance of a well permit
for the new well.
7.11 Basalt Water Conservancy District Contract. A Basalt Water Conser-
vancy District (BWCD) Contract has been obtained and is in full force and effect
providing augmentation water for the wells. The Association shall pay all costs of
said contract on an annual basis and shall abide by the terms and conditions of said
contract. The contract shall be owned by the Association. All Lot Owners shall be
required to pay their pro rata share regardless of water use. The Basalt Water
Conservancy District will prepare and file an augmentation plan for the wells for the
22
benefit of the Association. Such costs will be charged to the Association and the
Association shall pay said costs to ensure the continued legal viability of the
augmentation plan. In the event that the BWCD decides that it will no longer file
said augmentation plan and that each individual subdivision or owner shall be
responsible to file its own plan, the Association shall be responsible to file said plan
of augmentation and obtain a final decree at its own cost.
7.12 Wastewater Treatment. Wastewater treatment shall be supplied to
each Lot by individual sewage treatment system ("ISTS") installed by each Owner in
accordance with the ISTS Design and Performance Standards set forth in Article 8.10
and maintained by the Association in accordance with the provisions of the ISTS
Maintenance Plan set forth in Article 8.11. The Association shall be responsible for
setting all rates, fees or charges for inspecting, maintaining and repairing each
individual system and such rates, fees or charges assessed by the Association against
each Lot for such inspection, maintenance and repair shall be a personal obligation
of the Owner thereof which the Association shall have the power and duty to enforce.
7.13 Fireplaces and Stoves. In order to protect against air quality
degradation from the utilization of solid fuel burning devices, 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.
7.14 Wildfire Prevention. The guidelines of the Colorado State Forester for
wildfire prevention as presently specified in the pamphlet titled 'Wildfire Protection
in the Wildland Urban Interface" prepared by the Colorado State Forest Service
(C.S.F.S. #143-691) or any successor document shall be followed in the construction of
all future Improvements.
7.15 Fences and Hedges. The type and location of all fences and hedges will
be subject to the approval of the Design 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 Design 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. No fences or
hedges shall be constructed, grown or maintained on any Lot higher than six (6) feet
above ground level, but this restriction shall not apply to patio fences attached to
23
dwellings. Outside storage of hay shall be in an enclosed game -proof fence eight (8)
feet in height.
7.16 Fences Along Roads. Notwithstanding the provisions of Article 7.8
above, all Lot Owners shall be required to install along the portion of each Owner's
Lot where adjacent to public roads split rail cedar fencing with three (3) rails
consistent with the type of fencing installed by the Declarant at the entry into the
Subdivision from County Road 100.
7.17 Fences for Horses. In the event that any Owner of Lots 3 through 9
wishes to have horses on said Owner's property, prior to any horses being brought
onto the property, the Owner shall construct a boundary fence, together with gates
as may be necessary to adequately and securely keep the horse(s) inside the fence
and on the Owner's property. The Association may approve a single strand electrical
wire to be used in conjunction with wooden fencing on those Lots where horses are
kept.
7.18 Removal of Nonconforming Improvements. The Association, after
reasonable notice to the offender and to the Lot Owner, may remove any Improve-
ment constructed, reconstructed, refinished, altered or maintained violating these
Covenants, and the Lot Owner of the Improvement shall immediately reimburse the
Association for all expenses incurred in such removal.
7.19 Trees and Landscaping. There shall be no significant cutting or altering of
live trees or bushes or natural vegetation growing on any Lot, and no further
landscaping thereof except as may be authorized in writing by the Association, which
authorization shall not be unreasonably withheld unless as required by Garfield
County for fire protection. No irrigated yard and garden area shall exceed seven
thousand five hundred (7,500) square feet in size. To the extent reasonably possible,
all outside yard and garden irrigation shall utilize irrigation water from the Slough
Ditch.
ARTICLE 8
PROPERTY USE RESTRICTIONS
8,1 General Restriction. The Property shall be used only for the private
residential and other purposes as set forth in these Covenants as the same may be
amended from time to time, as permitted by the applicable regulations of the County
of Garfield and the laws of the State of Colorado •and the United States, or other
specific recorded covenants affecting all or any part of the Property. Notwithstand-
ing the foregoing, business activities associated with the sale of Lots or residences
constructed thereon shall be allowed. In addition and subject to any applicable
governmental regulation, in-home businesses or occupations not involving the
24
provision of services for customers or use of employees on site (other than the Lot
Owners) shall be allowed, provided such activities are conducted solely within an
enclosed structure and do not create or result in any nuisance or any unreasonable,
unwarranted or unlawful use or interference with public or private rights, including,
but not limited to, unreasonable or unwarranted use or interference with roads,
excessive traffic, increased parking requirements, or any other offensive or noxious
activities. Bed and breakfast operations shall not be permitted. This section shall not
be construed to prohibit property caretakers or personal assistants being employed
on the Property.
8.2 No Further Subdivision of Lots. No Lot described on the recorded Plat of
Roaring Fork Preserve Subdivision shall ever be further subdivided into smaller Lots
or conveyed or encumbered in any less than the full dimensions as shown on the
recorded Plat of Roaring Fork Preserve Subdivision; provided, however, conveyance or
dedications of easements for utilities may be made for less than all of one Lot.
Notwithstanding the above, a boundary line adjustment by Lot Owners between two
Lots shall be permitted provided that: (a) the approval of the Association and the.
County is first obtained; (b) the Lot Owners desiring such adjustment shall pay all
reasonable costs incident thereto, including preparation, approval and recording of
an amended Plat as may be required by the County and Declarant.
8.3 Vehicles. No 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, except for vehicles which are kept in
an enclosed garage or screened enclosure. This restriction, however, shall not be
deemed to prohibit 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 Lot Owners. No Lot Owner or other person
shall be permitted to operate snowmobiles or motorcycles which are not permitted
to be driven on public roads.
8.4 Excavation or Fill. No excavation or fill shall be made except in
connection with Improvements approved as provided in these Covenants. Any such
excavation or fill must be approved in advance by the Association. 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 eighteen
inches (18") 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.
25
Nothing contained herein shall be construed to diminish the ability of the Lot Owner
to smooth out the existing undulations of any Lot.
8.5 Erosion and Vegetation Control. The surface of the Property, including
all Lots, shall be maintained in a condition which will minimize the risk of soil
erosion and weed infestation. All excavations, fills and other construction which
disturb the existing vegetation shall be revegetated with weed free seed and mulch.
Any disturbed area on a Lot shall be fully restored by the Lot Owner.
8.6 Signs. No signs of any kind shall be displayed to the public view on
or from any portion of the Property, except ordinary real estate sale signs, signs
approved by the Association, or signs required by law.
8.7 Animals and Pets. Except as provided in Article 8.8, no animal,
livestock or poultry of any kind shall be kept, raised or bred on any Lot, except that
not more than one (1) dog, two (2) cats, and other typical small household pets,
such as birds and fish, shall be allowed. The following special requirements apply to
the dogs permitted on each Lot:
A. Each dog shall be kept under the control of the Lot 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.
No dog shall be allowed to bark excessively, which is defined as
barking more or less continuously during any fifteen (15) minute period.
C. Each dog shall be leashed or kept in a humane kennel or run at
all times. Metal chain link fencing will be allowed for the purposes of kenneling a
dog. The location and style of each kennel shall be subject to review by the Design
Review Committee. A kennel shall be installed prior to issuance of a Certificate of
Occupancy for any Lot if the Lot Owner possesses a dog at such time and, in any
event, prior to the introduction of a dog on any Lot.
D. All Lot Owners shall keep dogs reasonably clean and free of
disease and all Lots shall be kept free of animal waste.
E. 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 Lot 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
impoundment 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
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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.
F. 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.
8.8 Horses. Up to two (2) horses may be kept on Lots 3 through 9 and up to
four (4) horses may be kept on Lot 9, subject to the terms of these Covenants and any
rules established from time to time by the Association. The Lot Owner of any Lot with
horses shall be solely responsible for keeping the horse(s) on the Lot Owner's Lot
and for any damage or injury caused by said horse(s) if off of said Lot.
8.9 Drainage. No Lot 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 property owner.
8.10 ISTS Design and Performance Standards. Each ISTS installed within
the Property shall comply with the following requirements:
A. Each system shall be designed by a professional engineer
registered in the State of Colorado pursuant to C.R.S. 12-25-111 (1999). The
recommended supplier of ISTS systems is:
Cromaglass Corporation
P.O. Box 3215, 2902 North Beach Road
Williamsport, PA 17701
(570) 326-3396 - phone
(570) 326-6426 - fax
email: mailinfoOcromaglass.com
Web Site: www.cromaglass.com
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B. Each system design shall adequately address the soil percolation
conditions present at the Lot site, which percolation rates shall be verified through
appropriate on-site testing;
C. Each system shall be designed to adequately service at least four
(4) bedrooms;
D. Each system design, through the incorporation of recirculating
trickling filter, sequencing batch reactors and/or other accepted on-site wastewater
treatment system technologies, shall be capable of producing effluent quality which
meets or exceeds the requirements of the United States Environmental Protection
Agency for secondary wastewater treatment (30mg/L BOD and 30 mg/1. suspended
solids;
E. The tops of all tanks or risers extending therefrom shall be
surface accessible to facilitate system testing and maintenance; and
F. all absorption fields shall be sized to adequately service four (4)
bedrooms. Trench segments with at least six (6) feet of separation shall be used
whenever practically feasible. A minimum of three (3) similarly sized trench
segments should be installed with alternating values or a distribution box that allows
isolation of each segment. Monitoring pipes shall be installed at the far end of each
trench segment to allow inspection of field condition. If a bed must be utilized,
single dosed zones shall be acceptable. If mounding is required to establish four (4)
feet of suitable soil, a single pressure dosed zone shall be acceptable. If a bed or
mound is,used, a minimum of two (2) monitoring pipes shall be installed at the far
end of the bed or mound.
Following ISTS installation, each Lot Owner shall provide the Association with
as -built drawings depicting, in relation to the other Improvements on the Lot, the
location and dimensions of the ISTS facilities, including the absorption field and
monitoring pipes, all applicable design, operation and maintenance specifications of
the system's manufacturer and written certification from the designing engineer that
the ISTS was installed in conformance with the requirements above stated and all
applicable design specifications of the manufacturer.
In the event the Association fails to properly implement and enforce the design
and performance standards set forth in this Article 8.10, the Board of County
Commissioners for Garfield County, Colorado, and its duly authorized representatives
and agents, shall have all the right to enter upon the Property and implement and
enforce such standards at the expense of the Association or exercise any other right or
power afforded under this Declaration or the Act, including, but not limited to, the
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initiation of appropriate proceedings in the District Court for Garfield County,
Colorado, to compel enforcement of the same.
The provisions of this Article 8.10 shall not be amended or repealed by the
Declarant, Association or Lot Owners without the written consent of the Board of
County Commissioners for Garfield County, Colorado.
8.11 ISTS Management Plan.
A. In order to ensure that each ISTS installed within the Property is
inspected on a regular basis and properly maintained, the responsibility and
authority for such inspection and maintenance shall be vested exclusively within the
Association. This management plan is not intended to provide for common
ownership of the ISTS's or to provide common funding for the construction, repair
and maintenance thereof, such ownership and responsibility for construction, repair
and maintenance to remain with the Lot Owner.
B. In accordance with the above, the Association shall:
(1) retain at all times, the services of qualified personnel
holding, at a minimum, a Class C wastewater treatment operator's license issued by
the Colorado Department of Health and Environment to inspect the ISTS's and to
perform all maintenance and repairs necessary to ensure that same are installed
properly, remain in good operating condition and comply with the performance
requirements set forth within Article 8.10;
(2) inspect the operating components of each ISTS within
thirty (30) days of being placed in operation; thereafter, each ISTS shall be inspected at
least quarterly;
(3) test the BOD and TSS content of the effluent being
discharged by each ISTS at least biannually; and
(4) maintain at all times written or other permanent records
documenting the date each ISTS was inspected or tested, the results of such
inspections or tests and the extent of all maintenance and/or repairs performed. All
documents maintained by the Association pursuant to this provision shall at all times be
available for inspection by the Lot Owners and/or authorized representatives of the
Garfield County Department of Building and Planning.
C. The following provisions shall apply in the event the estimated
maintenance or repair costs required of any ISTS exceed $1,000.00 in total during
any one calendar year:
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(1) the Association shall give the Lot Owner written notice
of the nature and extent of the work necessary, to return the ISTS to good operating
condition and/or bring the ISTS System within the performance requirements set
forth within Article 8.10; and
(2) within thirty (30) days of receipt of such notice, Owner
shall, at his or her own expense, cause to be completed, the repairs set forth within
the notice. In the event Owner fails to complete such repairs within this time period to
the satisfaction of the Association, the Association shall have the authority, in
addition to any other remedy provided within this Declaration or the Act, to take any
of the following actions:
(a) to impose against Owner, a fine not to exceed
$200.00 for each day in which the System remains unrepaired; and/or
(b) to discontinue domestic water service to Owner's
Lot; and/or
(c) to complete on behalf of the Owner the required
repairs to the ISTS. All costs incurred by the Association in connection with the
restoration shall be reimbursed to the Association by the Owner of the Lot, upon
demand. All unreimbursed costs shall be a lien upon the Lot until reimbursement is
made. The lien may be enforced in the same manner as a lien for an unpaid
Assessment levied in accordance with Article 5 of this Declaration.
D. In the event the Association fails to properly implement and
enforce the provisions of this management plan set forth in this Article 8.11, the
Board of County Commissioners for Garfield County, Colorado, and its duly
authorized representatives and agents, shall have all the right to enter upon the
Property and implement and enforce such provisions at the expense of the
Association or exercise any other right or power afforded under this Declaration or
the Act including, but not limited to, the initiation of appropriate proceedings in the
District Court for Garfield County, Colorado, to compel enforcement of the provisions of
this management plan.
E. The provisions of this Article 8.11 shall not be amended or
repealed by the Declarant, Association or Lot Owners without the written consent of
the Board of County Commissioners for Garfield County, Colorado.
8.12 Sanitation. No trash, ashes, garbage, rubbish, debris or other refuse
shall be thrown, dumped or allowed to accumulate on the Property. There shall be
no burning of refuse. Each Lot Owner shall provide suitable receptacles for the
temporary storage and collection of refuse. All such receptacles shall be screened
30
from the public view and protected from wind, animals and other disturbances. Each
Lot shall be kept in a reasonably sanitary condition, free of offensive odors and
protected from rodent and insect infestations.
8.13 Temporary Structures. No temporary structures shall be permitted
except as may be determined to be necessary during construction and specifically
authorized by the Association.
8.14- Towers and Antennae.- No towers or exterior radio, television and
communications antennae shall be permitted without the prior written consent of the
Association. Dish receivers in excess of eighteen inches (18") in diameter shall be
screened from view.
8.15 Outside Burning. There shall be no exterior fires, except barbecues,
outside fireplaces and braziers. No Lot Owner shall permit any condition upon such
Lot Owner's Lot which creates a fire hazard or is in violation of fire prevention
regulations.
8.16 Noise. No exterior speakers, horns, whistles, bells or other sound
devices, except security devices, shall be placed or used on any portion of the
Property. Lot Owners shall not permit any noise or disturbance on their respective
Lots which is offensive, disturbing or otherwise detrimental to any other person.
8.17 Odor. No odor shall be emitted from any Lot which is noxious or
unreasonably offensive to others.
8.18 Lighting. All flood lighting, security lighting or other kind of high
intensity lighting shall be directed downward and toward the interior of the Property
and otherwise shielded to prevent glare on adjacent Lots or outside the Property.
8.19 Obstructions. There shall be no obstruction or interference with the
free use of the roadway, water system or any easement, except as may be reasonably
required for repairs. The Association shall promptly take such action as may be
necessary to abate or enjoin any interference with or obstruction of any easement.
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.
8.20 Service Facilities. All clothes lines, storage tanks, equipment, service
yards, wood piles and similar service facilities shall be screened by adequate planting
or fencing so as to conceal same from other Lots, adjoining properties, and roads.
Any refuse or trash containers, utility meters or other facilities, service areas, or
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storage piles shall be enclosed within a structure or appropriately screened from view
by planting or fencing approved by the Association and adequate to conceal the
same. No lumber, metals, boat materials, scrap, refuse or trash shall be kept, stored
or allowed to accumulate on any Lot, except building materials during the course of
construction and only for such reasonable periods of time as is necessary prior to
their collection or disposal, or except as are screened by adequate planting or fencing so
as to conceal the same from other Lots, adjoining properties, and roads.
8.21 Maintenance of Landscaping. Each Lot 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.
8.22 Continuity of Construction. All Improvements commenced on the
Property shall be prosecuted diligently to completion and shall be complete within
twelve (12) months of commencement, unless an exception is granted in writing by
the Association.
8.23 Hunting and Firearms. Firearms shall not be discharged on the
Property and no hunting shall be allowed.
8.24 Nuisances. No obnoxious or offensive activity shall be carried on
within the Property so as to unreasonably interfere with or disturb the use,
enjoyment and access of any other occupant of the Property, nor shall anything be
done, permitted or placed thereon which is or may become a nuisance or cause an
unreasonable offense, embarrassment or disturbance or annoyance to others.
8.25 Compliance With Laws. Subject to the rights of reasonable contest,
each Lot 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.
8.26 Underground Utility Lines. With respect to the new construction of any
Improvements within Roaring Fork Preserve Subdivision or the extension of any
utilities, all water, gas, electrical, telephone, and other utility pipes or lines within
the limits of Roaring Fork Preserve Subdivision shall be buried underground and not
be carried on overhead poles or above the surface of the ground. Any area of natural
vegetation or terrain in Roaring Fork Preserve Subdivision disturbed by the burying
of utility lines shall be revegetated within twelve (12) months of completion of any
Improvement by and at the expense of the Lot Owner or Owners causing the
installation of the utilities.
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8.27 Dust Control. The Association shall be responsible for ongoing dust
control of the private emergency access roads in Roaring Fork Preserve Subdivision.
Individual Lot Owners shall be responsible for ongoing dust control of their private
driveways. The private emergency access roads and driveways within Roaring Fork
Preserve Subdivision shall be monitored by the Association to insure 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 Owner, if the Owner fails to fulfill Owner's responsibility for
individual dust control.
8.28 No Mining, Drilling, or Ouarrying. Mining, quarrying, tunneling,
excavating, or drilling for any substances within the earth, including oil, gas,
minerals, gravel, sand, rock and earth, shall not be permitted within the limits of
Roaring Fork Preserve Subdivision except as allowed by this paragraph. Drilling for
water by the Declarant, the Association, and any individual Lot Owner or their
respective successors and/or assigns, for domestic purposes is hereby expressly
permitted within the limits of Roaring Fork Preserve Subdivision.
8.29 Weed Control/Vegetation Management Plan. The Association shall
implement and follow a program of noxious weed control which may address the
control and elimination of Canadian Thistle and other plant species included on the
Garfield County Noxious Weed List. In general, the weed control/vegetation
management plan should consist of the following components:
A. 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 vegetative densities
will leave noxious weeds little opportunity to establish. The use of hay that is
certified as weed free is also recommended.
B. Inventory. Each Lot should be inspected to identify any
infestations of noxious weeds. An accurate record should be kept of the application
and success of weed infestation eradication efforts.
C. Eradication. Elimination of noxious weeds can be achieved
through:
(1) Mechanical Controls physically remove the entire weed
plant or eliminate the plant's ability to produce seed.
(2) Biological Controls rely on organisms (insects or plant
pathogens) to interfere with weed growth.
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(3) Chemical Controls use herbicides to eliminate weeds.
Special care must be used with herbicides to avoid damage to desirable plant species
and to avoid contamination of ground water.
An effective weed management program may involve all three methods of
eradication as well as a long term commitment to prevention and control. Assistance in
the development and implementation of a weed management program is available
through the Colorado State University Cooperative Extension Service and from the
Garfield County Office of Vegetation Management.
It is the individual Lot Owner's responsibility, according to the Colorado
Noxious Weed Act and Garfield County's Weed Management Plan, to manage any
noxious weeds on his or her property. In the event a property owner fails to
effectively control noxious weeds on their Lot, the Association shall have the right to
enter upon any Lot and conduct a weed control program within the area of such Lot.
D. Vegetation Management Plan. The Association has obtained a
Vegetation Management Plan for Roaring Fork Preserve Subdivision, prepared by
Beech Environmental, LLC. A copy of this plan is available for inspection at the
offices of the Association. Said Vegetation Management Plan is incorporated herein
as if set forth verbatim. The Association shall implement and follow a program of
vegetation management as outlined by said Vegetation Management Plan, as the
same now exists or may be amended or supplemented from time to time.
8.30 Water Ouality Monitoring. Each well shall be constructed in
accordance with the State of Colorado Water Well Construction rules and regula-
tions. Water quality tests shall be performed based on applicable Colorado
Department of Public Health and Environment and the Environmental Protection
Agency standards for service level assigned to each well. As a minimum, the
Association will select one well within the Subdivision that will be tested on a semi-
annual basis for bacteria, nitrates, pesticides and herbicides.
8.31 Damage by Lot Owners. Each Lot Owner is responsible for any damage
caused to Roads, ditches, fences, trails, natural drainage courses, utilities, Association
property, or to other Lots or property thereon during the construction of Improve-
ments upon his Lot by any vehicle belonging either to him or any one using the
Roads while engaged in any activity benefitting the Lot Owner. Each Lot 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.
34
ARTICLE 9
MAINTENANCE
9.1 Association's Maintenance Responsibility. The Association shall
maintain and keep the Common Elements in good condition and repair, the cost of
which shall be included as part of the Common Expenses, subject to the Bylaws and
Association Rules. If, due to the act or neglect of a Lot Owner or a Lot Owner's
invitee, guest or any other occupant of a Lot, damage shall be caused to the Common
Elements or to a Lot owned by another, then such Lot Owner shall pay the costs of
repair and maintenance as may be determined necessary or appropriate by the
Association. Such obligation shall be an Assessment against such Lot Owner secured
by the lien provided for in Section 5.1 above.
9.2 Lot Owner's Maintenance Responsibility. Except as provided otherwise
in the Declaration or by written agreement with the Association, all maintenance of
individual Lots, including, without limitation, all Improvements, individual sewage
disposal systems (ISTS), utility systems and utility lines from the point of connection to
the common system shall be the sole responsibility of the respective Lot Owners.
Each Lot shall be maintained in a good, clean and attractive condition and repair
consistent with the requirements of a first class residential development. In the event a
Lot Owner should fail to keep any utility system (including any ISTS) in good
repair, the Association, without limiting any other remedy available under this
Declaration or applicable law, may enter upon said Lot for the purpose of inspecting
such utility system and if the Lot Owner refuses to make necessary repairs, the
Association may do so and the costs of such repairs shall be charged to the Lot Owner
and collected pursuant to Article 5 of this Declaration. Not less than biennially, each
Lot Owner shall provide the Association evidence of an inspection and necessary
pumping of such Lot Owner's ISTS.
ARTICLE 10
INSURANCE
10.1 Types of Insurance. The Association shall obtain and keep in full force
and effect the following insurance coverage, if determined appropriate by the
Executive Board:
A. Property and fire insurance with extended coverage and
standard all-risk endorsements, including vandalism and malicious mischief, on
Association property. 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.
35
B. Public liability and property damage insurance, including
medical payments insurance, in an amount determined to be sufficient in the
judgment of the Executive Board, covering all occurrences commonly insured against
for death, bodily injury and property damage arising out of or in connection with the
ownership, operation, maintenance or other use of Association property, including
but not limited to entryway and water features. This policy shall also cover
operation of automobiles or other vehicles or equipment on behalf of the Association.
This policy shall extend to the trail system set forth on the Plat.
C. Workmen's compensation and employer's liability insurance in
the amounts and in the forms required by law.
D. Fidelity coverage against the dishonesty of employees,
destruction or disappearance of money or securities, and forgery. This policy shall
also cover persons who serve the Association without compensation.
E. Coverage of members of the Executive 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.
F. Insurance against loss or damage to persons or property for
ditch or dam failure.
G. Coverage against such other risk of a similar or dissimilar nature
as the Executive Board deems appropriate.
H. If the insurance described in (A) or (B) is not reasonably
available or if any policy is canceled or not renewed without a replacement policy,
the Association shall promptly provide notice of any omitted coverage to all Lot
Owners either by personal delivery or by U.S. Mail, prepaid.
I. The insurance policies required pursuant to (A) and (B) above,
shall provide that each Lot Owner is an insured person under the policy with respect to
liability arising out of such Lot Owner's membership in the Association, shall waive the
right of subrogation against any Lot Owner or member of his household, and shall
provide that no act or admission by any Lot Owner, unless acting within the Lot
Owner's scope of such authority on behalf of the Association will void the policy or
be a condition to recovery under the policy. If at the time of a loss under any policy
pursuant to (A) and (B) above, there is other insurance in the name of a Lot Owner
covering the same risk covered by the policy, the Association's policy shall provide
primary insurance.
36
Nothing contained herein shall limit the authority of the Executive Board of the
Association to determine that different, greater, or lesser types of insurance coverage
are appropriate for the Association.
10.2 Named Insured and Interests. The Association shall be the named
insured under each of said policies. Where appropriate or required by the Act, the
named insured shall include the Declarant and the officers and directors of the
Association. Where appropriate or required by the Act, separate Owners shall also
be named insureds. 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 Declarant and to any Lot Owner who is a named
insured or to any eligible Mortgage holder.
10.3 Insurance Proceeds. The Association shall receive the proceeds of any
insurance purchased by the Association in trust for the Lot Owners and any
lienholders as their interests may appear. Subject to the provisions of the Act, 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 reconstruction to occur. If the insurance proceeds are not sufficient for such
purpose, the Association may levy a Special Assessment against the Lot Owners for
such deficiency. Any portion of the Common Elements for which insurance is
required under this Section which is damaged or destroyed shall be repaired or
replaced promptly by the Association unless: (i) The Roaring Fork Preserve
Subdivision is terminated; (ii) repair or replacement would be illegal under any local
statute or ordinance governing health or safety; (iii) eighty percent (80%) of the Lot
Owners vote not to rebuild; or (iv) prior to the conveyance of any Lot to a person
other than Declarant, the holder of a Mortgage on the damage portion of the
Common Elements rightfully demands all or substantial part of the insurance
proceeds.
10.4 Lot Owner's Insurance Responsibility. Each Lot Owner shall maintain
all insurance coverage for such Owner's Lot as deemed appropriate by such Lot
Owner. In addition, each Lot Owner shall be responsible for insuring all personal
property on the Lot, as well as general liability insurance and any other insurance
coverage deemed appropriate by such Lot Owner.
AR TICLE 11
ENFORCEMENT OF COVENANTS
11.1 Violation Deemed a Nuisance. Every violation of this Declaration or of
the rules promulgated by the Executive Board is deemed to be a nuisance and is
subject to all the remedies provided for the abatement of the violation. In addition,
all public and private remedies allowed at law or equity against anyone in violation
37
of these Covenants shall be available. In addition to all other remedies contained
herein, the Association shall have the right to impose on any Lot Owner monetary
fines for any lack of compliance with provisions of this Declaration or rules
promulgated by the Executive Board and where such fines are not paid within the
time provided, such fines may be collected as an Assessment Lien. 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 or the
enforcement thereof.
11.2 Compliance. Each Lot Owner and any other occupant of any part of
the Property shall comply with the provisions of these Covenants and the rules
promulgated by the Executive Board as the same may be amended from time to time.
Failure to comply with these Covenants or the rules promulgated by the Executive
Board shall be grounds for an action to recover damages or for injunctive relief to
cause any such violation to be remedied, or both.
11.3 Fines. In addition, the Association shall have the right to impose on
any Lot Owner monetary fines for any lack of compliance with provisions of this
Declaration or rules promulgated by the Executive Board or the Association and
where such fines are not paid within the time provided, such fines may be collected as
an Assessment Lien. 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 or the enforcement thereof.
11.4 Who May Enforce. Any action to enforce these Covenants or the rules
promulgated by the Executive Board may be brought by the Declarant or the
Executive Board in the name of the Association on behalf of the Lot Owners. If, after a
written request from an aggrieved Lot Owner, neither of the foregoing entities
commence an action to enforce these Covenants, then the aggrieved Lot Owner may
bring such an action.
11.5 Non-exclusive Remedies. All the remedies set forth herein are
cumulative and not exclusive.
11.6 Non -liability. No member of the Executive Board, the Declarant, the
Association or any Lot Owner shall be liable to any other Lot Owner for the failure
to enforce these Covenants at any time.
11.7 Recovery of Costs. If legal assistance is obtained to enforce any
provision of these Covenants, or in any legal proceeding (whether or not suit is
brought) for damages or for the enforcement of these Covenants or the restraint of
38
violations of these Covenants, the prevailing party shall be entitled to recover all
costs incurred, including reasonable attorney's fees.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 Severability. This Declaration, to the extent possible, shall be liberally
construed or reformed to give validity to all of its provisions. Any provision of this
Declaration found to be prohibited by law or unenforceable shall not invalidate any
other provision. Any determination by any court of competent jurisdiction that any
provision of this Declaration is invalid or unenforceable shall not affect the validity or
enforceability of any of the other provisions hereof. Where any provision of this
Declaration is declared by a court of competent jurisdiction to be contrary to or in
violation of the Act, this Declaration shall be automatically amended to replace such
provision with a new provision, as similar thereto as practicable, but which is not
contrary to or in violation of the Act.
12.2 Construction. In interpreting words in the 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.
12.3 Headings. The headings are included only for reference and shall not
affect the meaning or interpretation of this Declaration.
12.4 Notice. All notices or requests required shall be in writing. Notice to
any Lot 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 Lot Owner on file in the records of the Association at the time of
the mailing Notice to the Association or the Executive Board 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 or the Executive
Board at the address established by the Association from time to time by notice to the
Lot Owners. General notices to all Lot Owners need not be certified, but may be sent
by regular first class mail.
12.5 Waiver. No failure by the Association or the Executive Board to give
notice of default or any delay in exercising any right or remedy shall operate as a
waiver, except as specifically provided above. No waiver shall be effective unless it is
in writing signed by the President or Vice President of the Executive Board on
behalf of the Association.
12.6 Amendments. Except as otherwise provided by the Act (including
amendments by the Declarant and the Association which are expressly permitted by
39
the Act), this Declaration shall not be amended unless at least (i) sixty-six and
two-thirds percent (662/3%) of the Lot Owners and (ii) fifty-one percent (51 %) of the
First Mortgagees (based on one vote for each First Mortgage held) have given their
prior written approval. Notwithstanding the foregoing, and except to the extent
expressly permitted or required by the Act, no amendment may (i) create or increase
special Declarant rights, (ii) increase the number of Lots, (iii) change the allocated
interests of a Lot, or (iv) change the uses to which any Lot is restricted in the
absence of unanimous consent of the Lot Owners. Unless a First Mortgagee
provides the Secretary of the Association with written notice of its objection to a
proposed amendment within thirty (30) days following the First Mortgagee's receipt
of notice of such proposed amendment, the First Mortgagee will be deemed
conclusively to have approved the proposed amendment. The term "Mortgage" shall
include a Deed of Trust and the term "Mortgagee" shall include a beneficiary under a
Deed of Trust. No amendment which conflicts with the provisions of the resolutions for
the Roaring Fork Preserve Subdivision or the Plat shall be effective. Any instrument
amending this Declaration shall be in the form required by the Act and duly
executed by the President and Secretary of the Association and recorded in the real
property records of the County.
12.7 Term. This Declaration and any amendments or supplements hereto
shall remain in effect from the date of recordation until December 31, 2015.
Thereafter, these Covenants shall be automatically extended for five (5) successive
periods of ten (10) years each, unless otherwise terminated or modified as provided
herein or by the Act.
12.8 Indemnity. The Association shall indemnify and hold the Colorado
Division of Wildlife harmless from any and all claims for damage to landscaping
Improvements, fencing, ornamental and native plants, and garden plants resulting
from wildlife.
12.9 Variances. The Association may, by the majority vote of the members
constituting a quorum at a meeting of the Association, grant reasonable variances
from the strict compliance with the provisions of this Declaration in the case of
undue hardship or other reasons deemed valid by those voting in favor thereof . The
Lot Owners of all of the Lots shall be given at least twenty (20) days advance written
notice setting forth the time and place of the meeting of the Association at which
time any request for a variance is to be considered and describing the requested
variance. Lot Owners or their representatives shall be afforded the opportunity to
appear before the meeting of the Association and be heard with respect to the
requested variance.
12.10 Binding Effect. Each Lot Owner, his lessees, families and guests, the
heirs, successors or assigns of a Lot Owner, or any Mortgagee, and any other persons
40
using or occupying a Lot, shall be bound by and shall strictly comply with the
provisions of this Declaration, the Bylaws, the Articles, any deed restrictions and
covenants and all rules, regulations and agreements lawfully made by the Associa-
tion.
12.11 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 (i) the rule against perpetuities or some
analogous statutory provision, (ii) the rule restricting restraints on alienation, or (iii)
any other statutory or common law rules imposing like or similar time limits, such
provision shall continue only for the period of the life of David McMorris, his now
living descendants, and the survivor of them, plus twenty-one (21) years.
12.12 Termination. This Declaration may be terminated only if all the Lot
Owners and eligible Mortgage holders agree to such termination by an executed
acknowledged instrument duly recorded in the real estate records of Garfield County,
Colorado. This Declaration shall also terminate in the event of the taking of all of
The Roaring Fork Preserve Subdivision by condemnation or eminent domain or
abandonment or termination as provided by the Act. Any termination shall be in
accordance with the requirements of the Act.
12.13 Disbursement of Proceeds. Unless otherwise required by the Act, upon
the termination of this Declaration all property owned by the Association shall be
sold by the Association either in whole or in part as the Executive Board may deem
appropriate. The funds shall be disbursed without contribution from one Lot Owner to
another by the Association for the following purposes and in the following order:
A. payment of all customary expenses of the sale;
B. payment of all applicable taxes and special Assessment Liens in
favor of any governmental authority;
C. payment of the balance of any liens encumbering Association
property;
D. payment of any unpaid costs, expenses and fees incurred by the
Association; and
E. payment of any balance to' the Lot Owners in the same
proportion that they pay Association Assessments; provided, however, there shall be
deducted from any share due a Lot Owner any delinquent and unpaid Association
Assessments.
41
12.14 Condemnation of Association Property. If any Association property is
taken or condemned by any authority having the power of eminent domain, all
compensation and damages on account of the taking of the Association property,
exclusive of compensation for consequential damages to affected Lots, shall be
payable to the Association and such proceeds shall be used promptly by the
Association to the extent necessary for repair and reconstruction of remaining
Association property 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 Association property, it shall, at the Executive
Board's discretion, be either refunded or retained by the Association for such uses as it
deems appropriate.
12.15 Condemnation of Lots. If any Lot or a portion of any Lot is taken or
condemned by any authority having power of eminent domain, such taking shall be in
the manner provided for in the Act.
12.16 Applicable Law and Venue. The interpretation, enforcement or any.
other matters relative to this Declaration shall be construed and determined in
accordance with the laws of the State of Colorado. Any action to enforce, interpret
or otherwise pertaining to this Declaration shall be commenced in the District Court
for Garfield County, Colorado.
12.17 Conflict with Plat. In the event of any conflict or inconsistency between
the provisions of this Declaration and the Plat, including the Plat notes thereon, the
provisions of said Plat or Plat notes, as the case may be, shall govern and control and
this Declaration shall automatically be amended, but only to the extent necessary to
conform the conflicting provisions hereof with the provisions of the Plat, including
any Plat notes.
12.18 Provisions Incorporated in Deeds. Each provision contained in this
Declaration shall be deemed incorporated in each deed or other instrument by which
any right, title or interest in any Lot is granted, devised, conveyed or encumbered,
whether or not set forth or referred to in such deed or other instrument.
12.19 References to County Standards. Wherever in this Declaration there is
a reference to County land use regulations, zoning, other County standards, the
approval resolutions for the Roaring Fork Preserve Subdivision, any Plats approved
by the County or any other federal, state or local rule, law or regulation, such
references shall automatically be waived, released, modified or amended, as the case
may be, to correspond with any subsequent waiver, release, modification or
amendment of such regulations, zoning, other County standard, Plats or any other
rule or law.
42
LLW'as.
FAX NO. : 970 947 1078 May. 31 2002 10:02AM P2
12.20 Run with the Land. Declarant, for itself, its successors and assigns,
hereby declares that all of the Roaring Fork Preserve 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 Lot Owner of any interest in
the Roaring Fork Preserve Subdivision.
12.21 Supercedes and Replaces Previously Recorded Covenants. This
Restated Declaration of Covenants, Conditions, Restrictions and Easements for
Roaring Fork Preserve Subdivision supercedes and replaces in its entirety the
Declaration of Covenants, Conditions, Restrictions and Easements recorded on May
23, 2002, as Reception No. 603998 in Book 1357 at Page 225 of the records of the
Clerk and Recorder of Garfield County, Colorado, which previously recorded
Declaration shall be of no further force and effect.
TyW ofITNESS H OF, the Declarant has executed this Declaration this
, 2002.
STAIE OF COLORADO
ss.
COUNTY OF GARFIELD
ROARING FORK PRESERVE, LLC,
a Colorado limited liability company
,pw,s77,4eM(9,1,4
Dave McMorris, Manager
The foregoing instrument was acknowledged before me this 2 \ day of
(0(1 c , 2002, by Dave McMorris as Manager of Roaring Pork
Preserve, LLC, a Qplorado limited liability company.
WITNESS my hand and official seal.
My commission expires: 1 - 0 LI
5/31/02-CADataVan \wpdata\Rbedoc-J\rfirprotective covenants 3.wpd
43
Exhibit "A"
A parcel of land situated in Government Lots 12 and 13 in Section 35, and in Government Lots 14 and
15 in Section 36, Township 7 South, Range 88 West of the Sixth Principal Meridian, County of Garfield,
State of Colorado, said parcel lying northerly of the northerly right-of-way of Garfield County Road No.
100, and being more particularly described as follows:
Beginning at the North right-of-way line of Garfield County Road No. 100, from which the witness
corner for the South quarter corner of Section 35, a No. 6 rebar found in place bears South 81°49'57"
West 1416.62 feet (record tie: South 81°55' West 1417.05 feet); thence along said right-of-way South
87°28'17" East a distance of 425.14 feet; thence along said right-of-way South 88°35'41" East a
distance of 154.64 feet; thence along said right-of-way North 88°45'26" East a distance of 310.37 feet to
the TRUE POINT OF BEGINNING; thence North 01°14'34" West a distance of 1206.34 feet to a rebar and
cap, PLS #26950; thence North 67°39'44" West a distance of 478.58 feet to a point on an existing
fenceline being a rebar and cap, PLS #26950; thence along said fenceline North 00°40'07" East a
distance of 410.00 feet to a rebar and cap, PLS #26950; thence South 65°12'47" East a distance of
389.37 feet to a rebar and cap, PLS #26950; thence South 78°31'47" East a distance of 82.93 feet to a
rebar and cap, PLS #26950; thence South 62°09'01" East a distance of 155.56 feet to a rebar and cap,
PLS #26950; thence North 66°12'16" East a distance of 185.69 feet to a rebar and cap, PLS #26950;
thence South 78°29'52" East a distance of 277.46 feet to a rebar and cap, PLS #26950; thence South
65°19'05" East a distance of 252.12 feet to a rebar and cap, PLS #26950; thence South 89°58'08" East a
distance of 420.28 feet to a rebar and cap, PLS #26950; thence North 30°22'30" East a distance of
251.43 feet to a rebar and cap, PLS #26950; thence North 72°44'29" East a distance of 264.93 feet to a
rebar and cap, PLS #26950; thence North a distance of 740.00 feet to a rebar and cap, PLS #26950;
thence North 89°53'49" East a distance of 600.00 feet to a rebar and cap, PLS #18478 at the Northeast
corner of Government Lot 14 in Section 36; thence South 00°16'36" East a distance of 674.92 feet to the
Southeast Corner of Government Lot 14, also being the Northeast corner of Government Lot 15; thence
South 00°16'36" East a distance of 1413.08 feet along the easterly line of said Government Lot 15, to
the Northeast corner of that parcel of land described in Book 763 at Page 727; thence the following ten
(10) courses along the northerly and westerly lines of those parcels of land described in Book 763 at
Page 727 and in Book 765 at Page 933 of the. Garfield County Records:
1) South 22°04'22" West 22.78 feet;
2) South 02°38'40" West 115.26 feet;
3) South 78°591 7" West 220.50 feet;
4) South 81°58'57" West 266.62 feet;
5) North 81°47'11" West 67.60 feet;
6) North 84°42'56" West 88.95 feet;
7) North 84°42"56" West 114.68 feet;
8) South 79°02'17" West 120.81 feet;
9) North 87°27'14" West 227.54 feet;
10) South 15"25'16" West 192.83 feet to the northerly right-of-way of Garfield County Road No. 100;
thence along said right-of-way South 88°45'26" West a distance of 1028.69 feet to the TRUE
POINT OF BEGINNING