HomeMy WebLinkAbout01.0 Declaration of Protective Covenants111111111111111111 1111111111111111 ILUL 111 VIII 11111111
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DECLARATION OF PROTECTIVE COVENANTS
OF
WHITECLOUD RIDGE SUBDIVISION
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TABLE OF CONTENTS
ARTICLE 1.
PURPOSE OF COVENANTS 5
Common Interest Community 5
Purposes of Declaration 5
Declaration
5
ARTICLE 2.
DEFINITIONS 2
Act 2
Allocated Interests 2
Annexable Property 3
Architectural Committee 3
Articles of Incorporation 3
Assessment 3
Association 3
Association Properties 3
Board of Directors 3
Budget 3
Building Envelope 3
Bylaws 4
Common Area 4
Common Expenses 4
Common Interest Community 5
Declaration 5
Declarant 5
Improvement 6
Lot 6
Member 6
Mortgage 6
Mortgagee 6
Mortgagor 6
Notice and Hearing 6
Owner 6
Person 7
Plat 7
Public Functions 7
Record, Recordation, Recorded or Recording 7
Regular Assessment 7
Reimbursement Assessment 7
Rules and Regulations 8
Special Assessment 8
Subassociation 8
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Supplemental Declaration 8
Supplemental Plat 8
ARTICLE 3.
USE RESTRICTIONS 8
Permitted Uses 8
Accessory Dwelling Units 8
Duplexes/Multi-Family Structures 9
Auxiliary Buildings 9
ARTICLE 4.
ARCHITECTURAL COMMITTEE 9
Architectural Committee 9
Approval by Architectural Committee 9
Improvements — Site Location 10
Building Permit 11
Variances 11
General Requirements 11
Site Location 11
Fencing 11
Lighting 12
Requirements for Protecting Structures from Wildfire 12
Construction Specifications 13
Defensible Space 13
Preliminary Approvals 14
Architectural and Site Development Plans 15
Architectural Committee Not Liable 15
Written Records 15
Authority to Promulgate Rules and Regulations 15
ARTICLE 5.
RESTRICTIONS AND PROTECTIVE COVENANTS 15
No Further Subdivision 15
Domestic Animals 15
Underground Utility Lines 16
Service Yards and Trash 16
No Mining, Drilling or Quarrying 16
Trees 17
Shiny Materials 17
Hunting 17
ARTICLE 6.
WATER SYSTEM 17
Water System Operating Agreement 17
Monitoring of Wells 17
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ARTICLE 7.
RESTRICTIONS ON LOTS 18
Completion of Construction 18
Used or Temporary Structures 18
Enclosure of Unsightly Facilities and Equipment 18
Noxious Activity or Sounds 18
Air Quality Restrictions 18
Firearms 19
No Commercial Activities 19
ARTICLE 8.
ASSOCIATION PROPERTIES 19
Owners' Rights of Use and Enjoyment Generally 19
No Partition of Association Properties 19
Liability of Owners for Damage by Member i9
Association Duties if Damage, Destruction, or Required Improvements 20
Association Powers in the Event of Condemnation 20
Title to Association Properties on Dissolution of Association 20
ARTICLE 9
DECLARANT'S RIGHTS AND RESERVATIONS 21
Period of Declarant's Rights and Reservations 21
Right to Construct Additional Improvements on Association Properties 21
Declarant's Rights to Use Association Properties in Promotion and Marketing of
Common Interest Community 21
Declarant's Rights to Complete Development of Common Interest Community 22
Declarant's Approval of Conveyances or Changes in Use of Association Properties .. 22
Declarant's Rights to Grant and Create Easements 22
Declarant's Right to Convey Additional Property to Association 23
Annexation of Additional Properties 23
Right to Annex Additional Property 23
Effect of Expansion 24
Annexation of Additional Unspecified Real Estate 24
Withdrawal of Annexed Property 25
Expansion or Contraction of Annexable Property 25
ARTICLE 10.
ASSOCIATION OPERATION 25
Association 25
Association Board of Directors 26
Membership in Association 26
Voting Rights of Members 26
Determination of Member Voting Privileges 27
Registration of Owners 27
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ARTICLE 11.
DUTIES AND POWERS OF ASSOCIATION 27
General Duties and Powers of Association 27
Duty to Accept Property and Facilities Transferred by Declarant 27
Duty to Manage and Care for Association Properties 28
Duty to Pay Taxes 28
Duty to Maintain Casualty Insurance 28
Duty to Maintain Liability Insurance 28
General Provisions Respecting Insurance 29
Other Insurance and Bonds 29
Duty to Prepare Budgets 30
Duty to Levy and Collect Assessments 30
Duty to Keep Association Records 30
Duties with Respect to Architectural Committee Approvals 30
Power to Acquire Property and Construct Improvements 30
Power to Adopt Rules and Regulations 30
Power to Enforce Declaration and Rules and Regulations 30
Power to Grant Easements 31
Power to Convey and Dedicate Property to Governmental Agencies 31
Power to Borrow Money and Mortgage Property 32
Power to Engage Employees, Agents, and Consultants 32
General Corporate Powers 32
Power to Provide Public Functions 32
Power to Provide Special Services to Members 32
Power to Charge for Association Properties, Facilities and Services 33
Power to Employ Managers 33
Powers Provided by Law 33
ARTICLE 12.
ASSESSMENTS 33
Assessment Obligation and Lien 33
Statutory Lien 34
Lien Superior to Homestead and Other Exemptions 34
Priority of Lien 34
Perfection of Lien 35
Regular Assessments 35
Association Budget 36
Special Assessments 36
Reimbursement Assessments 37
Effect of Nonpayment of Assessments; Remedies of the Association 37
Statement of Unpaid Assessments 38
Assessments for Tort Liability 38
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ARTICLE 13.
EASEMENTS AND OPEN SPACE 39
Easements Shown on Plat 39
Easements for Access and Repairs 39
No Access To or From Sunset Lane 39
Open Space Area 39
ARTICLE 14.
GENERAL PROVISIONS 39
Declaration to Run 39
Termination of Declaration 39
Amendment of Declaration 40
Severability 40
Paragraph Headings 40
Limited Liability 40
Alternative Dispute Resolution 40
Rights of First Mortgagees. 41
Association Right to Mortgage Information 41
Notice 41
Persons Entitled to Enforce Declaration 42
Interpretation of Declaration and Supplemental Declarations 42
Violations Constitute a Nuisance 42
Enforcement of Self -Help 42
Violations of Law 42
Remedies Cumulative 43
Costs and Attorneys' Fees 43
No Representations or Warranties 43
Governing Law; Jurisdiction 43
Number and Gender 43
Disclaimer Regarding Safety 43
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DECLARATION OF PROTECTIVE COVENANTS
FOR WHITECLOUD RIDGE SUBDIVISION
THIS DECLARATION OF PROTECTIVE COVENANTS FOR WHITECLOUD RIDGE
SUBDIVISION is made and entered into this day of 2000.
ARTICLE 1.
PURPOSE OF COVENANTS
1.1 Common Interest Community. Declarants are the Owners of that certain parcel of
real property located in the Garfield County, Colorado, more particularly described on Exhibit A,
attached hereto and incorporated herein by this reference (hereinafter the "Common Interest
Community"). The Common Interest Community is a "planned community" as defined in the Act,
and its name shall be Whitecloud Ridge Subdivision. Declarants intend to develop the Common
Interest Community as a highly desirable scenic residential area with a strong sense of security,
neighborhood and community. The maximum number of Lots to be located within the Common
Interest Community shall not exceed 25.
1.2 Purposes of Declaration. This Declaration is executed (a) to protect and enhance
the quality, value, desirability and attractiveness of the Common Interest Community; (b) to provide
for an Association which will act as a vehicle to hold, maintain, care for and manage Association
Properties; (c) to create rules and a decision making process to strengthen the Common Interest
Community; (d) to preserve the present natural beauty, character and views of the Common Interest
Community to the greatest extent reasonably possible; (e) to define certain duties, powers and rights
of Owners; and (f) to comply with and effectuate the terms and provisions of the Act.
1.3 Declaration. Declarants, for themselves, their heirs, successors and assigns, hereby
declare that the Common Interest Community and all property which shall become subject to this
Declaration in the manner hereinafter provided, and each part thereof', shall, from the date the same
becomes subject to this Declaration, be owned, held, transferred, conveyed sold, leased, rented,
hypothecated, encumbered, used, occupied, maintained, altered and improved subject to the
covenants, conditions, restrictions, limitations, reservations, exceptions, equitable servitudes and
other provisions set forth in this Declaration, for the duration hereof, all of which are declared to be
part of, pursuant to, and in furtherance of a common and general plan of development, improvement,
enhancement and protection of the Common Interest Community. Notwithstanding the foregoing,
in no event shall the Annexable Property, or any portion thereof, be deemed to be burdened by, or
subj ect to, the terms of this Declaration until such property has been annexed to the Common Interest
Community, at Declarants' sole option, as more particularly provided herein. The provisions of this
Declaration are intended to and shall run with the land, and until their expiration or termination in
accordance with the terms hereof, shall bind, be a charge upon and inure to the mutual benefit of (a)
the Common Interest Community and all property which may become part of the Common Interest
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Community, (b) Declarants and their successors and assigns, (c) the Association and its successors
and assigns, and (d) all Persons having or acquiring any right, title or interest in any property which
is or becomes part of the Common Interest Community. This Declaration shall be recorded in
Garfield County, Colorado in accordance with applicable provisions of the Act.
ARTICLE 2.
DEFINITIONS
2.1 Act. "Act" shall mean the Colorado Common Interest Ownership Act as provided
in C.R.S. 38-33.3-101, et seq., as the same may be amended from time to time.
2.2 Allocated Interests. "Allocated Interests" means the Common Expenses liability and
the votes in the Association allocated to each Lot, which interests are allocated as follows:
2.2.1 The Common Expenses liability for each Lot is calculated on the basis of a
fraction, the numerator of which is one (1) and the denominator of which is the total number
of Lots in the Common Interest Community as of the date of the calculation. The
denominator may be increased from time to time by the Declarant upon the addition of Lots
to the Common Interest Community which can be conveyed to third parties. Such fraction
is then multiplied by the Common Expenses or the Assessment in question to determine that
Lot's share thereof. The Common Expenses liability of a Lot is determined without
reference to the size, location, value or use of the Lot. Adjustments in Common Expense
liabilities pursuant to the provisions of Subsection 12.6.2.(i) and (ii) shall not affect the
calculation or definition of "Allocated Interests."
2.2.2 One (1) vote in the Association is allocated to each Lot in the Common
Interest Community.
2.2.3 The foregoing allocations may not discriminate in favor of Lots owned by
Declarant or an affiliate of Declarant.
2.2.4 If Lots are added to or withdrawn from the Common Interest Community, (i)
the Common Expenses liability for each Lot shall be reallocated on the basis of a fraction,
the numerator of which is one (1) and the denominator of which is the total number of Lots
in the Common Interest Community following the addition or withdrawal of such Lots, and
(ii) one vote in the Association shall continue to be allocated to each Lot in the Common
Interest Community following the addition or withdrawal of such Lots.
The Allocated Interests for the Common Interest Community are specifically set forth on Exhibit B
attached hereto and made a part hereof by this reference, as said Exhibit B may be amended from
time to time.
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2.3 Annexable Property. "Annexable Property" shall mean that real property which is
more particularly described on Exhibit C, attached hereto and incorporated herein by reference, and
may include such other property which may be annexed to and made a part of the Common Interest
Community, as more particularly provided herein.
2.4 Architectural Committee. "Architectural Committee" shall mean a committee
provided for in Article 4 of this Declaration.
2.5 Articles of Incorporation. "Articles of Incorporation" shall mean the Articles of
Incorporation of Whitecloud Ridge Homeowners Association, which have been filed with the office
of the Secretary of State of the State of Colorado, as the same may be amended from time to time.
2.6 Assessment. "Assessment" shall mean a Regular Assessment, Special Assessment
or Reimbursement Assessment.
2.7 Association. "Association" shall mean Whitecloud Ridge Homeowners Association,
a Colorado nonprofit corporation, its successors and assigns.
2.8 Association Properties. "Association Properties" shall mean: (a) all real and
personal property, including, without limitation, Improvements now or hereafter owned by the
Association; (b) all Common Areas, as may now or hereafter exist; and (c) all real or personal
property with respect to which the Association holds an easement, lease or license for the use, care,
or maintenance thereof, or for which the Association has a right or duty to maintain, and which
property is held or maintained for the common use and enjoyment of the Members pursuant to the
terms and provisions of this Declaration.
2.9 Board of Directors. `Board of Directors" or "Board" shall mean the Board of
Directors of the Association.
2.10 Budget. "Budget" shall mean a written itemized estimate of the revenues, reserves,
and expenses to be generated or incurred by the Association in performing its functions under this
Declaration and prepared pursuant to Section 12.7 of this Declaration.
2.11 Building Envelope. "Building Envelope" shall mean that portion of each Lot which
is designated on the Plat as suitable for construction of habitable living space thereon. As more fully
provided herein, all Improvements to be constructed on a Lot, with the exception of Improvements
which are necessary to facilitate ingress to and egress from a Lot or Improvements which are
otherwise expressly authorized by the Architectural Committee, shall be located within the Building
Envelope designated for such Lot.
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2.12 Bylaws. "Bylaws" shall mean the Bylaws of the Association which have been or will
be adopted by the Board of Directors of the Association, as the same may be amended from time to
time.
2.13 Common Area. "Common Area" or "Common Areas" shall mean any portion of the
Common Interest Community owned or maintained by the Association for the common use and
enjoyment of the Owners, including, but not limited to, all streets, rights -of -ways, roads, entry ways,
entry features, sidewalks, drainage ways, pathways, trails, gardens, landscaped areas or other open
space, and such other easements for the use and benefit of the Owners as may be provided in the
Declaration. The land on which such Common Area is located may be owned: (a) by the
Association; or (b) separately or jointly by individual Owners over which the Association may have
an easement for maintenance purposes.
2.14 Common Expenses. "Common Expenses" means any expenditures made or
liabilities incurred by or on behalf of the Association, together with any allocations to reserves,
including, but not Iimited to the following:
2.14.1 The costs of maintenance, management, operation, repair and replacement of
the Common Areas;
2.14.2 The costs of Improvements constructed from time to time by the Association
on Common Area;
2.14.3 Unpaid Assessments;
2.14.4 The costs of management and administration of the Association, including,
but not limited to, compensation paid by the Association to managers, accountants, attorneys
and employees;
2.14.5 The costs of utilities and services {including, but not limited to, treated or
untreated water, electricity, gas, sewer, trash pick-up and disposal and recycling), which are
provided to the Association or the Common Interest Community and not individually
metered or assessed to Lots, landscaping maintenance, and other services which generally
benefit and enhance the value and desirability of the Common Interest Community and which
are provided by or on behalf of the Association;
2.14.6 The costs of insurance maintained by the Association as required or permitted
herein;
2.14.7 Reasonable reserves for contingencies, replacements and other proper
purposes as deemed appropriate by the Board to meet anticipated costs and expenses
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including, but not limited to, maintenance, repair and replacement of those Association
Properties which must be maintained, repaired or replaced on a periodic basis.
2.14.8 The costs of bonding the members of the Board, the officers of the
Association, or any professional managing agent of any other Person handling the funds of
the Association;
2.14,9 Taxes paid by the Association;
2.14.10 Amounts paid by the Association for discharge of any lien or
encumbrance levied against the Common Area or Association Properties;
2.14.11 The costs incurred by the Architectural Committee, and by any other
committees that may be established from time to time by the Board;
2.14.12 The costs of any security systems or services that may be installed,
operated or contracted for by the Association for the benefit of the Common Interest
Community; and
2.14.13 Other expenses incurred by the Association for any reason whatsoever
in connection with the Common Areas or the costs of any other item or service provided or
performed by the Association pursuant to this Declaration, any Supplemental Declaration,
the Articles, Bylaws, or Rules and Regulations or in furtherance of the purposes of the
Association or in the discharge of any duties or powers of the Association. In the event that
any common services furnished to the Common Interest Community are part of services that
are provided to or benefit property in addition to the Common Interest Community, Common
Expenses shall only include the cost of such services reasonably allocated to the services
provided to the Common Interest Community.
2.15 Common Interest Community. "Common Interest Community" or "Subdivision"
mean the real property described on attached Exhibit A and any additional real property which may
from time to time be annexed to the Common Interest Community and made subject to this
Declaration by Supplemental Declaration and Supplemental Plat.
2.16 Declaration. "Declaration" shall mean this instrument as it may be amended from
time to time.
2.17 Declarant. "Declarant" or "Declarants" shall both mean Thomas W. Levitt and
Molly G. Levitt, their heirs, successors and assigns. A Person shall be deemed to be a "successor
and assign" of Thomas W. Levitt and Molly G. Levitt, as Declarant only, if specifically designated
in a Recorded instrument as a successor or assign of Declarant under this Declaration and shall be
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deemed a successor and assign of Declarant only as to the particular rights or interests of Declarant
under this Declaration which are specifically designated in the written instrument.
2.18 Improvement. "Improvement" shall mean all structures and any appurtenances
thereto of every type or kind, including, but not limited to, dwelling units, buildings, outbuildings,
swimming pools, patio covers, awnings, painting of any exterior surfaces of any visible structure,
additions, walkways, outdoor sculptures or artwork, sprinkler pipes, garages, carports, roads, ditches,
driveways, parking areas, fences, screening walls, retaining walls, stairs, decks, fixtures, landscaping,
kennels, hedges, windbreaks, plants, planted trees and shrubs, poles, signs, conduits, exterior tanks,
solar equipment, exterior air conditioning equipment, antennae, satellite dishes and water softener
fixtures.
2.19 Lot. "Lot" shall mean any lot within the Common Interest Community which is
shown upon any Plat, or any Supplemental Plat. 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.
2.20 Member. "Member" shall refer to the members of the Association and shall mean
the Person or, if more than one, all Persons collectively who constitute the Owner of a Lot.
2.21 Mortgage. "Mortgage" shall mean any mortgage or deed of trust or other such
instrument, given voluntarily by the Owner of a Lot, encumbering the Lot to secure the performance
of an obligation or the payment of a debt and which is required to be released upon performance of
the obligation or payment of the debt. The term "Deed of Trust" when used herein shall be
synonymous with the term "Mortgage."
2.22 Mortgagee. "Mortgagee" shall mean a mortgagee under a Mortgage or a beneficiary
under a Deed of Trust, as the case may be, and the assignees of such mortgagee.
2.23 Mortgagor. "Mortgagor" shall mean the Person who mortgages his or its property
to another (i.e., the maker or grantor of a Mortgage). The term "Mortgagor" shall include a trustor
or grantor under a Deed of Trust.
2.24 Notice and Hearing. "Notice and Hearing" shall mean a written notice and public
hearing before the Board, in the manner provided in the Bylaws.
2.25 Owner. "Owner" shall mean the Person, including Declarant, or, if more than one,
all Persons collectively, who hold the Recorded fee simple title to a Lot, including sellers under
executory contracts of sale and excluding buyers thereunder.
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2.26 Person. "Person" shall mean a natural person, a corporation, a partnership, a trust,
a limited liability company, or any other entity capable of holding title to real property pursuant to
the laws of the State of Colorado.
2.27 Plat. "Plat" shall mean the land survey plat Recorded contemporaneously herewith
(and any amendments thereto) which depicts all or a portion of the Common Interest Community
and which further depicts and locates thereon the location of Lots, Building Envelopes, Common
Area, and such other items as may be required by the Act. The Plat, and any amendments or
supplements thereto, are hereby incorporated herein and made a part hereof by reference. For the
purposes of this Declaration, the term "Plat" shall also mean and include each Supplemental Plat
recorded by Declarant for the purposes of annexing all or a portion of the Annexable Property to the
Common Interest Community.
2.28 Public Functions. "Public Functions" shall mean and include, but not be limited to,
the act of providing, installing, operating, administering, managing, and overseeing public services
and functions for the benefit of Owners, including repairs, replacements and maintenance obligations
commonly associated with municipal or other local governmental or quasi -governmental
organizations, including, without limitation, repair and maintenance of streets, sidewalks, bicycle
and pedestrian paths and walkways, security, including the provision of gated entrances and guard
houses, animal control, vegetation control, insect and pest control, television service, parking
facilities, public transportation facilities, including paths and trails, street cleaning, snow removal,
sign age, including entry monuments, lighting, including seasonal lighting, project and perimeter
fencing, landscape walls, landscaping services and facilities, drainage facilities, including retention
and detention ponds, trash and solid waste disposal services, including recycling programs, utility
services, and such other services, functions and activities, as are deemed appropriate by the Board
of Directors. The foregoing list shall not be deemed to be a representation by Declarant of services
or facilities which will be available for use of the Owners.
2.29 Record, Recordation, Recorded or Recording. "Record," "Recordation,"
"Recorded," or "Recordation" shall mean the filing for record of any documents in the office of the
Clerk and Recorder of Garfield County.
2.30 Regular Assessment. "Regular Assessment" shall mean a charge against an Owner
and the Owner's Lot for purposes of covering the annual costs of operating and administering the
Association and all other Common Expenses. Regular Assessments are based on a Budget adopted
by the Board in accordance with Section 12.7 below, and are allocated to the Lots in accordance with
the Allocated Interests, subject to Subsection 12.6.2.
2.31 Reimbursement Assessment. "Reimbursement Assessment" shall mean a charge
against a particular Owner and his Lot for the purpose of reimbursing the Association for
expenditures and other costs of the Association in curing any violation, directly attributable to the
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Owner, of the Declaration or the Rules and Regulations, pursuant to Section 12.9 hereof, together
with late charges and interest as provided for herein.
2.32 Rules and Regulations. "Rules and Regulations" shall mean written rules,
regulations and requirements adopted and amended from time to time by the Board for the regulation
of the Common Interest Community, including, without limitation, the use of Association Properties
and Association services.
2.33 Special Assessment. "Special Assessment" shall mean a charge against each Owner
and his Lot representing a portion of the costs of the Association for the purpose of funding capital
improvements, excess construction costs, extraordinary expenses or operating deficits, or for any
other purpose authorized by the Board of Directors as provided in Section 12. Special Assessments
are allocated to the Lots in accordance with the Allocated Interests.
2.34 Subassociation. "Subassociation" shall mean any Colorado corporation, nonprofit
corporation, or unincorporated association, and its successors and assigns, organized and established
or authorized pursuant to, or in connection with, one or more Supplemental Declarations and of
which the membership is composed of Owners of Lots within all or part of the area covered by such
Supplemental Declarations.
2.35 Supplemental Declaration. "Supplemental Declaration" shall mean a written
instrument containing covenants, conditions, restrictions, reservations, easements, or equitable
servitudes, or any combination thereof, which may be recorded for any portion of the Annexable
Property in accordance with Section 9.8 of this Declaration.
2.36 Supplemental Plat. "Supplemental Plat" shall mean any land survey plat which is
Recorded by Declarant for the purpose of annexing the property described therein to the Common
Interest Community.
ARTICLE 3.
USE RESTRICTIONS
3.1 Permitted Uses. Only one (1) single-family dwelling, together with structures
appurtenant or accessory thereto, shall be constructed on any Lot. The minimum size of a single-
family dwelling shall be two thousand (2,000) square feet, exclusive of basements, open porches,
decks, carports and garages. The maximum size of any single-family dwelling shall be ten thousand
(10,000) square feet, exclusive of basements, open porches, decks, carports and garages.
3.2 Accessory Dwelling Units. Accessory dwelling units shall be permitted only on Lots
12 and 13 of the Subdivision and are subject to the provisions of Garfield County zoning,
subdivision and building regulations. The maximum size of an accessory dwelling unit shall be the
smaller of two thousand five hundred (2,500) square feet or the size allowed at the time of
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construction by Garfield County in the applicable zone district, exclusive of basements, open
porches, decks, carports and garages. The square footage of any such accessory dwelling unit shall
not be included in the minimum or maximum amounts of square footage for dwellings as provided
in paragraph 3.1 above.
3.3 Duplexes/Multi-Family Structures. Duplexes and multi-family structures are
prohibited in the Subdivision. An accessory dwelling unit, whether or not attached to a residential
structure, shall not cause the structures on a Lot to be considered a duplex or multi-family structure.
3.4 Auxiliary Buildings. Auxiliary buildings such as greenhouses, tool sheds, work
areas, detached garages and the like shall be permitted within the Subdivision, provided that no
individual auxiliary building shall exceed one thousand two hundred (1,200) square feet, and
provided further that the total square footage of auxiliary buildings on any Lot shall not exceed two
thousand four hundred (2,400) square feet. In addition to the auxiliary buildings described above,
a livestock barn of up to two thousand (2,000) square feet shall be permitted on each of Lots 11, 12,
and 13. No such auxiliary building shall exceed eighteen (18) feet in height at the ridge line. Except
for an accessory dwelling unit connected thereto, no auxiliary building shall contain living facilities
or be used as a dwelling, but auxiliary buildings may include bathrooms.
ARTICLE 4.
ARCHITECTURAL COMMITTEE
4.1 Architectural Committee. The Architectural Committee shall be composed of
between three (3) and five (5) natural persons. Prior to Declarant's sale of ten (10) Lots, Declarant
may from time to time appoint and remove the members of the Architectural Committee in
Declarant's sole discretion, and the Board shall have no authority to remove any member so
appointed. Upon the sale of the tenth (10th) Lot, any new members of the Architectural Committee
shall be appointed by the Board. The persons serving on the Architectural Committee shall serve
at the pleasure of the Board who may remove a member of the Architectural Committee, except a
member appointed by Declarant, and appoint a new member at any time, provided there shall at all
times be at least three (3) persons serving on the Architectural Committee. The members of the
Architectural Committee may also be directors of the Association and need not be Members. The
Architectural Committee shall have and exercise all the powers, duties and responsibilities set out
in this instrument.
4.2 Approval by Architectural Committee. No Improvements of any kind, including,
but not limited to, dwelling units, greenhouses, garages, tool sheds, work areas, fences, walls,
driveways, towers, antennae, satellite dishes, kennels, exterior lighting, corrals, flagpoles, curbs and
walks shall be constructed, erected, altered or permitted to remain within the Subdivision, nor shall
any grading, excavating, tree cutting and clearing or landscaping be done within the Subdivision,
unless the complete architectural and site development plans and specifications therefor (and such
other items as are included in the "Plans" defined below) are approved by the Architectural
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Committee prior to the commencement of such work, except as Declarant may be specifically
permitted to do by this Declaration or required to do by any subdivision improvements agreement
between the Declarant and Garfield County. In particular, but without limiting the generality and
scope of the foregoing, no roof may be placed on any structure unless the finished exterior material
and color of such roof are specifically approved by the Architectural Committee. Revegetation of
all infills and cuts will be required. Plans addressing the revegetation of infills and cuts shall provide
for adequate weed control, the use of native grasses, shrubs or trees, and the use of certified, weed -
free seed. Such Plans will be submitted to the Architectural Committee prior to any excavation, and
the Architectural Committee's approval of such Plans shall be required before such excavation
begins.
At least three (3) complete sets of the architectural and site development plans and
specifications shall be submitted to the Architectural Committee along with a grading and drainage
plan, a soils and foundation report and an individual sewage disposal system (ISDS) design both
prepared and certified by a professional engineer, and a fire management plan consistent with the
provisions hereof and Plat Note No. 10 of the Plat and approved by the Carbondale and Rural Fire
Protection District or its successor, and a complete list, with attached samples, of all finished exterior
materials and colors to be used (collectively referred to herein as the "Plans"). All copies of the
Plans shall be signed and dated for identification by the Owner or his architect. The Architectural
Committee shall have the right to request whatever additional information, plans, specifications,
reports and the like it deems necessary to evaluate the development proposal and its completion
throughout the approval and construction process. In addition, the Architectural Committee may
adopt rules and regulations which shall specify additional information, reports, plans, specifications
and the like required to be submitted to the Architectural Committee and to be deemed part of the
Plans for all purposes hereunder. In the event the Architectural Committee fails to take any action
within sixty (60) days after three (3) copies of the Plans have been submitted to it and the submittal
has been certified in writing by the Architectural Committee as complete, then all of such submitted
architectural plans shall be deemed to be approved. The Architectural Committee shall not
unreasonably disapprove any Plans . The majority vote of the full number of members of the
Architectural Committee then in office shall be required for any approvals described herein, and
unless such majority votes to approve, the vote of two members of the Architectural Committee to
disapprove shall constitute disapproval. In the event the Architectural Committee shall disapprove
any Plans, the person or entity submitting such Plans may appeal the matter to the next annual or
special meeting of the Members of the Association where a vote of sixty-six and two-thirds percent
(652/3%) of the votes entitled to be cast at said meetings shall be required to change the decision of
the Architectural Committee.
4.3 Improvements — Site Location. All structures shall be constructed within the
Building Envelopes. No Improvements, other than fences or walks, shall be constructed on forty
percent (40%) or greater slopes.
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4.4 Building Permit. An Owner may apply for a building permit from the Garfield
County Building Department at any time; provided, however, that the Plans approved by the
Building Department shall not differ in any substantial way from the Plans approved by the
Architectural Committee. If the plans approved by the Building Department differ in any substantial
way as determined by the Architectural Committee, then all approvals of the Architectural
Committee shall be deemed automatically revoked.
4.5 Variances. Unless specifically prohibited by a provision of this Declaration, the
Architectural Committee may, by an affirmative vote of a majority of the full numbers of members
of the Architectural Committee then in office, allow reasonable variances as to any of the covenants
and restrictions governing architectural control contained in this Declaration and/or policies or rules
promulgated by the Architectural Committee, on such terms and conditions as it shall require. No
variance shall be granted which contravenes any provision of this Declaration which was required
by an approval obtained by Declarant from Garfield County for the Subdivision or which violates
the Garfield County Land Use and Building Codes. No variance shall be granted unless written
notice of the request for such variance (together with a detailed description of such variance and the
date, time and place of the variance hearing) is provided thirty (30) days prior to the hearing for said
variance to all Owners. Notice to such Owners shall be deemed effective when placed in the United
States mail, first-class postage prepaid, certified with return receipt requested, and addressed to the
last known address for each Owner as provided to the Association.
4.6 General Requirements. The Architectural Committee shall exercise its best
judgment to see that all Improvements, construction, alterations, grading, excavating, tree -cutting
and clearing and landscaping within the Subdivision harmonize reasonably with the natural
surroundings within the Subdivision and with other structures and improvements within the
Subdivision as to design, materials, color, siting, height, grade, finished ground elevation of
neighboring lots and other design features. It shall encourage "xeriscape" landscaping which
emphasizes the use of indigenous foliage.
4.7 Site Location. Subject to the other provisions of this Declaration, the Architectural
Committee shall exercise its judgment to preserve the natural characteristics of each Lot including
trees, vegetation, and the natural setting of each building site. The Architectural Committee shall
evaluate the relationship of any proposed structure or Improvement to topography, the impact of any
proposed structure or Improvement upon existing drainage patterns (particularly those of other Lots),
the viewsheds of and relationships to other existing or potential structures and Improvements in the
Subdivision.
4.8 Fencing. Barbed wire and chain link fencing shall be prohibited. Only wooden
fencing shall be permitted within the Subdivision, with limited exceptions pertaining specifically to
gardens, kennels or other elements where a wooden fence would not serve the purpose desired, such
as to keep animals in an enclosed area or to keep wildlife out of an enclosed area, and to areas in
close proximity to the primary or secondary structure where a masonry fence or wall may be used
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in addition to wood to create privacy or to provide visual screening. The type and location of all
fencing must be approved by the Architectural Committee. In consideration of allowing the free
movement of wildlife through the Subdivision, the following additional fence design criteria shall
apply.
4.8.1 Lots 1 through 10. No fencing shall exceed forty-two (42) inches in height
when located outside of the Building Envelope. Within the Building Envelope, fencing may
exceed this height only as approved by the Architectural Committee for the purpose of
providing privacy, screening, containing domestic animals or excluding wildlife.
4.8.2 Lots 11, 12, and 13. There shall be no fencing in excess of forty-two (42)
inches in height between the Building Envelope and Whitecloud Road. Within the Building
Envelope and in the sideyards or the rear yard up to the boundaries of the respective Lots:
4.8.2.1 Fences designed to contain livestock shall be of a rail type design,
shall not exceed sixty (60) inches in height, and shall have openings between rails of
a minimum of eighteen (18) inches, provided that livestock corrals within the
building envelope enclosing 3,000 square feet or less may have a different design,
taller height or smaller openings if approved by the Architectural Committee; and
4.8.2.2 Other fencing may not exceed forty-two (42) inches in height unless
approved by the Architectural Committee for the purpose of providing privacy,
screening, containing domestic animals or excluding wildlife.
4.9 Lighting. The Architectural Committee shall consider exterior lighting plans and,
with possible exception for lighting necessary for safety, will require that all exterior lighting be
directed downward and towards the applicant's property. The Architectural Committee may
establish various standards for exterior lighting, including, without Iimitation, standards for hue and
intensity. It will also recommend that all Owners make every effort possible to limit the use of
exterior lighting at night. It shall encourage Owners to build in such a fashion that all light sources
not be directly visible from outside of the Owner's respective Lot. The intent behind these
considerations is to preserve the rural character of the Subdivision by limiting exterior lighting as
much as possible while maintaining a safe atmosphere.
4.10 Requirements for Protecting Structures from Wildfire. Wildfire is a fact of nature,
and nothing can guarantee that persons or property within the Subdivision will be free from injury
or damage due to wildfire. The requirements of this Section are intended to reduce the risk of
damage or injury from wildfire without representation or warranty of any kind. Each dwelling shall
be located in compliance with Plat Note No. 10 and the fire management plan approved by the
Carbondale and Rural Fire Protection District or its successor. All structures shall be designed and
constructed in a manner to minimize the possibility of ignition from wildfire. The following design
criteria shall be required for construction in the Subdivision.
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4.10.1 Construction Specifications.
4.10.1.1 Roofs: Roof construction and materials shall meet a fire
resistance classification of "Class C" (as defined in the Uniform Building Code) or
its equivalent.
4.10.1.2 Vents: Undereave vents shall be located near the roof line
rather than near the wall to prevent flames from entering the house through these
openings. The vents shall be screened with corrosion resistant, noncombustible wire
mesh with the mesh not to exceed, on a nominal basis, 1/4 inch in size.
4.10.1.3 Overhangs: Eaves, the undersides of cantilevered balconies
and similar undersides of overhangs including stilt supported decks shall be enclosed
with materials that equal or exceed '/2 inch nominal sheathing.
4.10.1.4 Exterior Walls: Exterior walls shall be constructed of at least
'/z inch nominal sheathing or equivalent material with a fire resistance rating of one
to two hours and shall extend from ground to roof line. Stucco, brick and rock are
recommended on sides of structures where the wildfire hazard may be higher.
4.10.1.5 Glazed Openings: Dual pane or triple pane glazing or its
equivalent is recommended on all glazed openings. Fire -resistive shutters which can
be closed in the event of fire are recommended on sides of the structures exposed to
a wildfire threat.
4.10.1.6 Chimneys and Flues: Chimneys and flues which serve solid
fuel appliances shall be provided with an approved spark arrester.
4.10.2 Defensible Space.
4.10.2.1 Each dwelling unit on Lots 4-13, inclusive, shall have a
minimum defensible space as specified herein of thirty (30) feet and each dwelling
unit on Lots 1-3, inclusive, shall have a minimum defensible space of forty (40) feet.
4.10.2.2 Defensible space is defined as an area surrounding a structure
where certain modifications have been made and restrictions imposed to reduce or
eliminate the presence of flammable material. The Colorado State Forest Service has
recommended downslope fuel modification for a distance of one hundred feet or
more for structures located at the top of slopes. The following fuel modification
procedures shall be followed in the creation of a defensible space.
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4.10.2.3 Large native trees, shrub groups and clumps of small trees
within the defensible space should be thinned to provide 10 feet of separation
between the vegetation canopies.
4.10.2.4 New plantings should be placed to maintain 10 feet of
separation of the vegetation canopies at the mature growth of the plants.
4.10.2.5
inches or less.
Grasses within the defensible space should be mowed to 4
4.10.2.6 All trees taller than 18 feet should have lower branches pruned
to a height of 6 feet.
4.10.2.7 Shrubs and trees should be thinned along driveways to assure
access by emergency vehicles.
4.10.2.8 If not enclosed within a fire resistant structure, woodpiles
should not be located within 30 feet from any structures, and flammable vegetation
should be cleared for a distance of 10 feet around any woodpile.
4.10.2.9 Construction materials, leaves and flammable debris should
be removed from the defensible space.
4.10.2.10 Leaves and debris should be removed from roofs at least once
a year.
4.10.2.11 Branches should be separated from chimneys by at least 10
feet.
4.10.2.12 All liquid propane gas tanks should be buried.
4.11 Preliminary Approvals. Owners who anticipate constructing or modifying
Improvements on a Lot or grading, excavating, tree -cutting and clearing or landscaping on a Lot may
submit preliminary sketches or plans thereof to the Architectural Committee for informal and
preliminary approval or disapproval. All preliminary sketches should be submitted in at least three
(3) sets and should contain sufficient general information on those matters required to be in the
complete Plans to allow the Architectural Committee to act intelligently in giving an informed
preliminary approval or disapproval. The Architectural Committee shall never be committed or
bound by any preliminary or informal approval or disapproval. The preliminary approval process
is offered as an accommodation only, and the Architectural Committee may set fees for this service.
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4.12 Architectural and Site Development Plans. The Architectural Committee shall
disapprove any Plans submitted to it which do not contain sufficient information for it to exercise
the judgment required of it by this Declaration.
4.13 Architectural Committee Not Liable. Neither the Architectural Committee nor any
member thereof shall be liable for damages to any person or entity submitting any Plans for approval,
or to any Owner, by reason of any action, failure to act, approval, disapproval or failure to approve
or disapprove with regard to such Plans. Neither the Architectural Committee nor any member
thereof shall have any liability or responsibility for any representations made to any Owner or
prospective Owner by any third parties. The decisions of the Architectural Committee shall be
governed by this Declaration and any rules or regulations duly adopted by the Architectural
Committee pursuant to this Declaration.
4.14 Written Records. The Architectural Committee shall keep, safeguard and make
accessible to any Owner, for at least five (5) years complete permanent written records of all
approved applications, including one (1) set of the finally approved Plans, and of all actions of
approval or disapproval and all other formal actions taken by it under the provisions of this
Declaration.
4.15 Authority to Promulgate Rules and Regulations. The Architectural Committee
may promulgate and adopt rules and regulations necessary to implement this Declaration. These
rules and regulations may, without limitation, include submission requirements concerning the type
of information, reports, plans and specifications, necessary to make an informed decision regarding
requests for development, alterations and the like.
ARTICLE 5.
RESTRICTIONS AND PROTECTIVE COVENANTS
5.1 No Further Subdivision. No Lot shall ever be further subdivided into smaller lots
or conveyed or encumbered in less than the full dimensions as shown on the Plat; provided, however,
that conveyances or dedications of easements, if approved by the Architectural Committee, may be
made for less than the full dimensions of a Lot. Notwithstanding the foregoing, a lot line adjustment
between two (2) Lots shall be allowed, subject, however, to any reviews or approvals that may be
required by the Garfield County Land Use Code, the procedures and actions required by the Act, and
the prior approval of the Architectural Committee and the Board.
5.2 Domestic Animals. Except as expressly limited herein, domestic animals such as
dogs, cats, rabbits, caged birds and fish shall be permitted subject to any rules and regulations which
may be promulgated by the Board of Directors. Livestock such as horses, cattle, llamas, goats, pigs,
sheep, chicken and other poultry shall be permitted only on Lots 11, 12 and 13 of the Subdivision
and shall be kept and maintained in accordance with the Rules and Regulations.
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Owners shall be entitled to keep a maximum of one (1) mature dog and three (3)
mature cats on each Lot. A mature dog shall be considered to be any dog older than four (4) months
old. A mature cat shall be considered to be any cat older than three (3) months. The neutering of
dogs is strongly encouraged. Cats and dogs shall be kept under the control of the Owner at all times
and shall not be permitted to run free or to cause a nuisance in the Subdivision. No cats or dogs shall
be allowed beyond the boundaries of the respective Owner's Lot or within the area of any access,
roadway, drainage or open space easement within the Subdivision shown on the Plat unless
accompanied by a person in full control of such cat or dog. Dogs shall be leashed, chained, fenced,
electrically kenneled or housed at all times.
The Association shall have the right to assess and enforce penalties against Owners
violating these restrictions applying to dogs and cats as specified in the Rules and Regulations.
Should any dog be found chasing any or molesting deer or elk or any domestic animals or livestock
of any Owners other than the Owner of the dog or cat in question, the Association shall be authorized
to prohibit the Owner from continuing to maintain the offending animal on his property and may
dispose of that animal, if necessary, to protect wildlife or other Owners' domestic animals or
livestock.
Areas where an Owner keeps any animals shall be kept reasonably clean and free of
refuse, insects and waste at all times. No commercial animal breeding activities of any kind shall
be permitted within the Subdivision.
Notwithstanding the foregoing, no animal(s) may be kept on or within a Lot (whether
or not within a structure) which, in the good faith judgment of the Board of Directors, result(s) in
any annoyance or are obnoxious to Owners or other residents in the vicinity of the Subdivision.
5.3 Underground Utility Lines. All water, sewer, gas, electrical, telephone, cable
television and other utility pipes or lines within the limits of Subdivision shall be buried underground
and not be carried on overhead poles or above the surface of the ground. Any areas of natural
vegetation or terrain in the Subdivision disturbed by the burying of utility lines shall be revegetated
by and at the expense of the respective Owners causing the installation of the utilities no later than
the next growing season following installation.
5.4 Service Yards and Trash. Equipment, service yards or storage piles on any Lots
may be permitted during construction if they receive Architectural Committee approval. Otherwise,
no lumber, metals, equipment or bulk materials shall be kept, stored or allowed to accumulate
outside on any Lot. All scraps, refuse and trash shall be removed from all Lots, shall not be allowed
to accumulate and shall not be burned thereon.
5.5 No Mining, Drilling or Quarrying. Mining, quarrying, tunneling, excavating or
drilling for any other substances within the earth, including, without limitation, oil, gas, minerals,
gravel, sand, rock and earth, shall not be permitted within the limits of the Subdivision, except
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drilling, exploring for or removing underground water by Declarant or by the Association, provided
that any such water may be used only for the benefit of the Association. No individual water wells,
except the well existing on Lot 13 as of the date hereof, shall be permitted on any Lot, and no Owner
shall be permitted to drill for water on his Lot, unless specific written approval shall have been
obtained from the Association.
5.6 Trees. No Owner shall remove any healthy, living trees without first having obtained
the approval of the Architectural Committee. All construction, landscaping and development on any
Lot shall seek to minimize the removal of trees and maximize the preservation of trees to the greatest
extent possible consistent with requirements for a defensible space, wildlife protection and the
reasonable immediate plans of the Owner of the respective Lot to improve, develop or redevelop it.
5.7 Shiny Materials. No Improvements shall contain exterior roofs or siding materials
which are reflective or shiny.
5.8 Hunting. Hunting shall be prohibited within the Subdivision. With the approval of
the Association, an Owner may, consistent with the requirements of law, destroy or remove wildlife
which constitutes a nuisance.
ARTICLE 6.
WATER SYSTEM
6.1 Water System Operating Agreement. Each Lot shall obtain domestic water from
the Whitecloud Ridge Domestic Water System in accordance with the Whitecloud Ridge Domestic
Water System Operating Agreement recorded in the Records of the Garfield County Clerk and
Recorder on c $7 2 a -Zoo o , as Reception No. 5- 7//5-13 (the Water System Operating
Agreement). The Association is hereby authorized and obligated to undertake, perform and receive
the benefits of all terms and conditions of the Water System Operating Agreement, specifically
including, without limitation, the Administration of the Water System and the obligation to provide
water service to all users of the Water System, all is defined and set forth in detail in the Water
System Operating Agreement; provided, however, that the Association shall not serve, nor hold itself
out as serving or ready to serve, all members of the public, nor take any action which would cause
it to be classified as a public utility under the laws of the State of Colorado.
6.2 Monitoring of Wells. The Association shall cause the water level of each well which
is a component of the Water System to be measured on a monthly basis. The Association shall retain
the records of such water level measurements for at least three (3) years. If no significant non-
seasonal reduction in water level is observed for a period of three (3) years after a dwelling is
constructed upon each Lot in the Subdivision, the Association may reduce the frequency with which
it takes such well measurements to one time per calendar quarter.
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ARTICLE 7.
RESTRICTIONS ON LOTS
7.1 Completion of Construction. Any construction activity on any Lot shall be
completed, fully cleaned up and landscaped within eighteen (18) months from the issuance of a
building permit, unless the Owner of the Lot shall first obtain a variance from the Architectural
Committee to allow for a longer period of construction upon proof of due diligence. In the event a
variance is not secured and eighteen (18) months from issuance of a building permit has passed, the
Board of Directors may assess penalties in any amount it deems appropriate.
7.2 Used or Temporary Structures. Except within an enclosed garage, no mobile
home, manufactured home or used or previously erected or temporary house or structure shall be
permitted in the Subdivision, nor may a variance from this provision be granted. The foregoing
prohibition shall not be interpreted as a general prohibition of modular construction. Furthermore,
the foregoing prohibition shall not apply to construction trailers which shall be permitted for eighteen
(18) months from the date of commencement of construction or until the issuance of a certificate of
occupancy, whichever first occurs; provided, however, construction trailers may only be used for
construction, office and storage purposes and shall not be occupied as a residence for any period of
time.
7.3 Enclosure of Unsightly Facilities and Equipment. Except for livestock equipment
on Lots 11, 12 and 13, all unsightly structures, facilities, equipment and other items, including, but
not Iimited to, those specified below, shall be enclosed within a solid structure sufficient to screen
such things from view from the common roads and neighboring homes to the greatest extent
possible. Any motor home, trailer, camper, recreational vehicle, boat, truck (excluding pick-up
trucks), tractor, motorcycle, all terrain vehicle, snow removal or garden equipment and any similar
items shall be kept at all times, except when in actual use, in an enclosed garage. Any propane or
other fuel storage tanks shall be buried. Any trash containers, utility meters or other similar
facilities, shall be enclosed within a structure or appropriately screened from view by plants or
fencing approved by the Architectural Committee and adequate to conceal the same from neighbors,
streets and private roads.
7.4 Noxious Activity or Sounds. No noxious activity or sounds shall be carried on upon
any portion of the Subdivision at any time, nor shall anything be done or permitted which may be
or become a nuisance to other property or Owners by smell, sight or sound, provided that the Board
of Directors may authorize the use of sound and sound -generating devices to control or manage
wildlife, livestock or domestic animals or to promote security or safety.
7.5 Air Quality Restrictions. In order to protect against the degradation which occurs
to air quality as a result of the utilization of wood -burning devices, the following restrictions apply:
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7.5.1 No open hearth solid fuel fireplaces will be allowed anywhere within the
Subdivision.
7.5.2 All dwellings within the Subdivision will be allowed an unrestricted number
of natural gas burning fireplaces or appliances.
7.5.3 All dwellings within the Subdivision will be allowed one (1) new wood -
burning stove as defined by Colorado Revised Statutes 25-7-401 et seq., and the regulations
promulgated thereunder.
7.6 Firearms. The discharge or shooting of firearms is prohibited in the Subdivision
except as may be permitted by the Rules and Regulations.
7.7 No Commercial Activities. No business, professional or other non-residential or
commercial use shall be made of any Lot, or conducted in any residence constructed on a Lot,
excepting in-home businesses or occupations which do not involve (i) more than one non -Owner,
non-resident employee, (ii) the solicitation or invitation of the general public, or the servicing of
customers, and which activities are conducted entirely within the residence, and (iii) do not cause
any additional traffic or parking within the Common Interest Community or otherwise create a
nuisance for neighboring Lots or the Common Interest Community. No equipment or materials
incident to any business or occupation (whether conducted within the residence or elsewhere) shall
be kept or stored on any Lot except within the residence, garage, or other outbuilding approved by
the Architectural Committee.
ARTICLE 8.
ASSOCIATION PROPERTIES
8.1 Owners' Rights of Use and Enjoyment Generally. Unless otherwise provided in
this Declaration, all Owners, their immediate family, dependants, and their guests may use the
Association Properties, subject to the provisions of this Declaration and the Rules and Regulations.
8.2 No Partition of Association Properties. No Owner shall have the right to partition
or seek partition of the Association Properties or any part thereof.
8.3 Liability of Owners for Damage by Member. Each Owner shall be liable to the
Association for any damage to Association Properties or for any expense or liability incurred by the
Association which may be sustained by reason of the negligence or willful misconduct of such
Owner or any Person using the Association Properties through such Owner and for any violation by
such Owner or any such Person of this Declaration or any Rule and Regulation adopted by the
Association. Each Owner shall indemnify and hold the Association harmless from any and all loss,
damage, expense, or liability arising from any negligence or willful misconduct of any Owner or
Persons using the Association Properties through such Owner. The Association shall have the
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power, as elsewhere provided in this Declaration, to levy and collect a Reimbursement Assessment
against a Member, after Notice and Hearing, to cover the costs and expenses incurred by the
Association on account of any such damage or any such violation of this Declaration or of such
Rules and Regulations or for any increase in insurance premiums directly attributable to any such
damage or any such violation.
8.4 Association Duties if Damage, Destruction, or Required Improvements. In the
event of damage to Association Properties by fire or other casualty or in the event any governmental
authority shall require any repair, reconstruction, or replacement of any Association Properties, the
Association shall have the duty to repair, reconstruct, or replace the same, to the extent funds are
available to do so. Any insurance proceeds payable by reason of damage or destruction of
Association Properties by fire or other casualty shall be paid to the Association and shall be used,
to the extent necessary , to pay the costs of repair, reconstruction, or replacement. If funds from
insurance proceeds or from reserves for replacement are insufficient to pay all costs of such repair,
reconstruction, or replacement, or if the Association is required to make repairs, replacements, or
improvements by governmental authorities, the Association may, in order to make up any deductible
or deficiency in the insurance proceeds or to pay for the required repair, replacement, or
improvement, levy a Special Assessment in accordance with Section 12.8, or if an Owner or group
of Owners are liable for such damage, levy a Reimbursement Assessment against the Owner or group
of Owners responsible therefor, to provide the additional funds necessary. Repair, reconstruction,
or replacement of Association Properties and the construction of such required improvements shall
be done under such contracting and bidding procedures as the Association shall determine are
appropriate. If insurance proceeds available to the Association on account of damage or destruction
exceed the cost of repair, reconstruction, and replacement, the Association may use the excess for
future maintenance, repair, improvement, and operation of other Association Properties or any other
use deemed appropriate by the Board.
8.5 Association Powers in the Event of Condemnation. If any Association Properties
or interests therein are taken under exercise of the power of eminent domain or by private purchase
in lieu thereof, the award in condemnation or the price payable shall be paid to the Association,
except to the extent payable to any other Person with an interest in such property, including, without
limitation, any Mortgagee of such property. The Association shall have the exclusive right to
participate in such condemnation proceedings and to represent the interests of all Owners or other
Persons therein. Any award or funds received by the Association shall be held by the Association
as determined by the Board, as a reserve for future maintenance, repair, reconstruction, or
replacement of Association Properties or may be used for Improvements or additions to or operation
of Association Properties or such other uses as may be deemed appropriate by the Board. Except
as may otherwise be provided by the Act, no Owner shall be entitled to participate as a party or
otherwise in any condemnation proceedings nor to receive any proceeds therefrom.
8.6 Title to Association Properties on Dissolution of Association. In the event of
dissolution of the Association, the Association Properties shall, to the extent permitted by law and
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reasonably possible, be conveyed or transferred to an appropriate public, governmental or quasi -
governmental agency or organization or to a nonprofit corporation, association, trust, or other
organization, to be used, in any such event, for the common benefit of the Owners for similar
purposes for which the particular Association Property was held by the Association. To the extent
the foregoing is not possible, the Association Properties shall be sold or disposed of and the proceeds
from the sale or disposition shall be distributed to the Owners and any lien holders as their interests
may appear, based on each Owner's interest in the Association Properties as heretofore allocated.
ARTICLE 9
DECLARANT'S RIGHTS AND RESERVATIONS
9.1 Period of Declarant's Rights and Reservations. Declarant shall have, retain, and
reserve certain rights as hereinafter set forth with respect to the Common Interest Community, the
Association and the Association Properties from the date hereof, until (a) the time that the last Lot
which may be created within the Common Interest Community has been sold and conveyed by
Declarant to Persons other than Declarant or affiliates of Declarant, or (b) the date which is thirty
(30) years from the date this Declaration is Recorded, whichever event occurs first. The rights,
reservations and easements hereinafter set forth shall be deemed excepted and reserved in each
conveyance of property by Declarant to the Association whether or not specifically stated therein and
in each deed or other instrument by which any property within the Common Interest Community is
conveyed by Declarant. The rights, reservations, and easements hereinafter set forth shall be prior
and superior to any other provisions of this Declaration and may not, without Declarant's prior
written consent, be modified, amended, rescinded, or affected by any amendment of this Declaration.
Declarant's consent to any one such amendment shall not be construed as consent to any other
subsequent amendment.
9.2 Right to Construct Additional Improvements on Association Properties.
Declarant shall have and hereby reserves the right, but shall not be obligated to, construct additional
Improvements on Association Properties at any time and from time to time in accordance with this
Declaration for the improvement and enhancement thereof and for the benefit of the Association and
the Owners. Declarant shall convey or transfer such Improvements to the Association and the
Association shall be obligated to accept title to, care for, and maintain the same as Association
Properties as elsewhere provided in this Declaration. Nothing in this Declaration shall require
Declarant to obtain any approval of the Architectural Committee to construct any such
Improvements.
9.3 Declarant's Rights to Use Association Properties in Promotion and Marketing
of Common Interest Community. Declarant shall have and hereby reserves the right to reasonable
use of the Association Properties and of services offered by the Association in connection with the
promotion and marketing of the Common Interest Community. Without limiting the generality of
the foregoing, Declarant may (a) erect and maintain on any part of the Association Properties such
signs, temporary buildings, and other structures as Declarant may reasonably deem necessary or
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proper in connection with the promotion, development, and marketing of real property within the
Common Interest Community; (b) use vehicles and equipment on Association Properties for
promotional purposes; (c) permit prospective purchasers of property within the boundaries of the
Common Interest Community who are not Owners to use Association Properties at reasonable times
and in reasonable numbers; and (d) refer to the Association Properties, the Association and services
offered by the Association in connection with the development, promotion, and marketing of
property within the boundaries of the Common Interest Community.
9.4 Declarant's Rights to Complete Development of Common Interest Community.
No provision of this Declaration shall be construed to prevent or limit Declarant's rights, which
Declarant hereby retains and reserves, to complete development of property within the boundaries
of the Common Interest Community; to construct or alter Improvements on any property owned by
Declarant within the Common Interest Community, including temporary buildings; to maintain
model homes, temporary buildings, construction trailers, or offices for construction or sales
purposes, or similar facilities on any property owned by Declarant or owned by the Association
within the Common Interest Community; or to post signs incidental to development, construction,
promotion, marketing, or sales of property within the boundaries of the Common Interest
Community. Nothing contained in this Declaration shall limit Declarant's rights (which Declarant
hereby retains and reserves) or require Declarant to obtain approvals from the Architectural
Committee, the Board or the Association (a) to excavate, cut, fill, or grade any property owned by
Declarant or to construct, alter, demolish, or replace any Improvements on any property owned by
Declarant; (b) to use any structures on any properties owned by Declarant as a construction or
management office, model home, or real estate sales office in connection with the sale of any
property within the boundaries of the Common Interest Community; or (c) remove from the
Common Interest Community any structures referred to in subparagraph (b) above as long as such
removal takes place promptly after Declarant ceases to be an Owner or at any earlier time. Nothing
in this Declaration shall limit or impair the reserved rights of Declarant as elsewhere provided in this
Declaration.
9.5 Declarant's Approval of Conveyances or Changes in Use of Association
Properties. Until such time as Declarant has lost the right to appoint members of the Architectural
Committee as provided in Section 4.1 hereof, the Association shall not, without first obtaining the
prior written consent of Declarant, convey, change, or alter the use of Association Properties,
Mortgage the Association Properties, or use Association Properties other than solely for the benefit
of Members or as otherwise specifically allowed hereunder.
9.6 Declarant's Rights to Grant and Create Easements. Declarant shall have and
hereby reserves the right to grant or create temporary easements or to relocate existing easements
for (a) access to and egress from or through the Common Interest Community; (b) utilities, including,
but not limited to, water, sewer and electrical lines; (c) drainage, including, but not limited to,
drainage and ditch lateral easements; (d) access across private roads located within the Common
Interest Community to the Annexable Property; and (e) other purposes incident to the development
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and sale of the Common Interest Community (collectively the "Easements"). Such Easements may
be located by Declarant in, on, under, over, and across, Lots within the Common Interest Community
so long as such easements do not lie within any Building Envelope. Declarant shall further have the
right to grant to public or quasi -public entities the right to construct certain storage or other similar
facilities on Common Areas in connection with the provision of utilities or other services to the
Common Interest Community. Any such facilities so located, and all distributions lines located in
any easements created pursuant to the provisions hereof, or otherwise, shall, in all events, belong to
the provider of such services.
9.7 Declarant's Right to Convey Additional Property to Association. Declarant shall
have and hereby reserves the right, but not the obligation, to convey additional real or personal
property, including, without limitation, Improvements thereon to the Association at any time and
from time to time in accordance within this Declaration.
9.8 Annexation of Additional Properties.
9.8.1 Right to Annex Additional Property. Declarant shall have and hereby
reserves the right, for a period of thirty (30) years from the date of the Recording of this
Declaration to annex all or any portion of the Annexable Property to the Common Interest
Community. In accordance with the foregoing, each Owner of a Lot hereunder hereby grants
to Declarant the right to annex the Annexable Property to the Common Interest Community
and to modify such Owner's rights to the Common Areas accordingly, as more particularly
set forth in this Section. Notwithstanding the foregoing, Declarant is authorized to convey
portions of the Annexable Property as it may acquire, prior to its annexation hereto, to such
third party or parties as it may deem appropriate, whether for purposes consistent with the
Declaration or otherwise. Declarant makes no assurances that all or any portion of the
Annexable Property will be added to the Common Interest Community and Declarant
reserves the right to annex all or any portion of the Annexable Property to the Common
Interest Community in any order it deems fit in its sole and absolute discretion. Any such
annexation shall not make or constitute any amendment or modification to this Declaration
except as may otherwise be provided herein. The annexation of additional real property to
the Common Interest Community shall be accomplished by Recording a Supplemental
Declaration containing a legal description of the land area to be added to the Common
Interest Community, together with any Supplemental Plats applicable thereto. The
Supplemental Declaration shall incorporate the covenants, conditions and restrictions set
forth herein and contain such additional covenants, conditions and restrictions as may be
applicable to the property annexed thereby, including any special or particular uses thereof
The annexation of the Annexable Property may be accomplished by successive Supplemental
Declarations, in no particular or pre -established order, and may provide that the property
annexed thereby (the "Annexed Property") is to be phased so that it is to be made subject to
this Declaration at different times. Any such Supplemental Declaration may impose on the
Annexed Property described therein additional covenants, conditions, restrictions,
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limitations, reservations, exceptions, equitable servitudes, and other provisions than those
set forth in this Declaration, taking into account the unique and particular aspects of the
proposed development of the Annexed Property covered thereby. Furthermore, the Declarant
shall have the right to reserve in such Supplemental Declaration any such development rights
which are necessary or appropriate to complete the development of the Annexed Property or
which are otherwise necessary to meet the unique and particular aspects of the Annexed
Property. Upon Recordation of a Supplemental Declaration, the Annexed Property shall be
subject to all of the covenants, conditions, restrictions, limitations, reservations, exceptions,
equitable servitudes, and other provisions set forth in this Declaration, except to the extent
specifically stated in the Supplemental Declaration, but in no event shall the covenants,
conditions and restrictions of such Supplemental Declaration be less stringent than those set
forth herein.
9.8.2 Effect of Expansion. In the event any real property is annexed to the
Common Interest Community as provided herein, the definitions used in this Declaration
shall be automatically expanded to encompass and refer to the Common Interest Community
as expanded; e.g., "Common Interest Community" shall mean the real property described
herein plus any additional real property annexed thereto; similarly, "Common Area" and
"Lots" shall include those areas as described herein as well as those so designated on any
Supplemental Declaration or Supplemental Plat relating to any real property which is
annexed pursuant hereto. References to this Declaration shall mean this Declaration as so
supplemented by any Supplemental Declaration. Every Owner of a Lot in the area annexed
to the Common Interest Community shall, by virtue of ownership of such annexed property
and upon Recordation of the Supplemental Declaration annexing such property to the
Common Interest Community, be a Member of the Association and shall be entitled to the
same rights and privileges and subject to the same duties and obligations as any other
Association Member. The Recording of the Supplemental Declaration shall operate
automatically to grant, transfer, and convey to all Owners of Lots located within the existing
Common Interest Community and Owners of Lots within the annexed property thereto, their
respective, appurtenant, undivided rights, titles, interests, privileges, duties and obligations
in and to both the existing Common Areas and any additional Common Areas added to the
existing Common Areas by virtue of such annexation, if any. Annual assessments for Lots
within the area annexed to the Common Interest Community shall commence as of the date
of the Recording of the Supplemental Declaration and shall be reallocated in accordance with
the provisions of Section 12.6 hereof. Upon recording of the Supplemental Declaration and
any Supplemental Plat, the additional Lots and Common Areas shall be subject to the terms
and provisions of this Declaration.
9.9 Annexation of Additional Unspecified Real Estate. Declarant hereby reserves the
right, for a period of thirty (30) years from the date of the Recording of this Declaration, to annex
additional, unspecified real estate to the Common Interest Community to the fullest extent permitted
by the Act. In the event that Declarant elects to annex such additional property, Declarant shall
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annex such property to the Common Interest Community in accordance with the provisions of
Section 9.8.
9.10 Withdrawal of Annexed Property. Annexed Property for which a Supplemental
Declaration has been Recorded may be withdrawn from the Common Interest Community and from
this Declaration by Declarant at any time prior to the time any Lot contained in the Annexed Property
has been conveyed to a third party. Such withdrawal may be accomplished by the execution,
acknowledgment, and Recordation of a Notice of Withdrawal. The Notice of Withdrawal (a) shall
executed and acknowledged by the Owner of the Annexed Property; (b) shall, if the Annexed
Property is not then owned by Declarant, contain the executed and acknowledged written consent
of Declarant for so long as Declarant owns any property in the Common Interest Community and has
the power to annex additional property to the Common Interest Community; (c) shall contain an
adequate legal description of the Annexed Property being withdrawn; (d) shall contain a reference
to the Supplemental Declaration for the Annexed Property being withdrawn which reference shall
state the date thereof, the date of Recordation thereof, and the book and page of the Records in the
office of the Clerk and Recorder of the county where the Supplemental Declaration was Recorded;
and (e) shall contain a statement and declaration that the Annexed Property is withdrawn from the
Common Interest Community and shall not be thereafter subject to this Declaration or the
Supplemental Declaration for the Annexed Property. The withdrawal shall be effective upon
Recording of the Notice of Withdrawal Annexed Property and, upon Recording of the Notice of
Withdrawal, the annexed property described therein shall no longer be part of the Common Interest
Community or subject to this Declaration or to the Supplemental Declaration for the Annexed
Property.
9.11 Expansion or Contraction of Annexable Property. Subject to any limitations of
the Act, the Annexable Property may be expanded or contracted to add or delete real property
effective upon the Recordation of a written instrument, executed by Declarant, describing such real
property and declaring that such real property shall thereafter be added to or deleted from the
Annexable Property.
ARTICLE 10.
ASSOCIATION OPERATION
10.1 Association. The Association has been formed as a Colorado nonprofit corporation
under the Colorado Revised Nonprofit Corporation Act. The Association has been organized prior
to the date the first Lot is conveyed to a Purchaser, as that term is defined in the Act. The
Association shall have the duties, powers, and rights set forth in the Act, the Colorado Revised
Nonprofit Corporation Act, this Declaration and in its Articles of Incorporation and Bylaws. As
more specifically set forth hereinafter, the Association shall have a Board of Directors to manage its
affairs. Except as may be provided herein, the Articles of Incorporation or the Bylaws, the Board
of Directors shall be elected by Owners acting in their capacity as Members of the Association.
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10.2 Association Board of Directors. The affairs of the Association shall be managed
by a Board of Directors. The number, term, and qualifications of the Board of Directors shall be
fixed in the Articles of Incorporation and Bylaws. The Board of Directors may, by resolution,
delegate portions of its authority to officers of the Association, but such delegation of authority shall
not relieve the Board of Directors of the ultimate responsibility for management of the affairs of the
Association. Action by or on behalf of the Association may be taken by the Board of Directors or
any duly authorized executive committee, officer, agent, or employee without a vote of Members,
except as otherwise specifically provided in this Declaration.
10.3 Membership in Association. Each Owner of a Lot within the Common Interest
Community shall be a Member of the Association. There shall be one Membership in the
Association for each Lot within the Common Interest Community. The Person or Persons who
constitute the Owner of a Lot shall automatically be the holder of the Membership appurtenant to
that Lot, and the Membership appurtenant thereto shall automatically pass with fee simple title to
the Lot. Declarant shall hold a Membership in the Association for each Lot owned by Declarant.
Membership in the Association shall not be assignable separate and apart from fee simple title to a
Lot except that an Owner may assign some or all of his rights as an Owner and as a Member of the
Association to a tenant or Mortgagee and may arrange for a tenant to perform some or all of such
Owner's obligations as provided in this Declaration, but no Owner shall be permitted to relieve
himself of the responsibility for fulfillment of the obligations of an Owner under this Declaration.
1 0.4 Voting Rights of Members. Each Member shall have the right to cast one vote for
each Lot owned by such Member in accordance with the Bylaws, provided in no event shall there
be more than one (1) vote per Lot. If title to a Lot is owned by more than one (1) Person, such
persons shall collectively vote their interest as a single vote. Notwithstanding the foregoing,
Declarant shall be entitled to select and appoint, in its sole discretion, Directors (the "Declarant's
Control Period"), in accordance with the Bylaws, until the expiration of the Declarant's Control
Period as hereinafter provided; provided, however, that not later than sixty (60) days after
conveyance of twenty-five percent (25%) of the total number of Lots that may be created within the
Common Interest Community by Declarant to Owners other than Declarant, at least one Member,
and not less than twenty-five percent (25%) of the Members of the Board of Directors must be
elected by Owners other than Declarant and that no later than sixty (60) days after the conveyance
of fifty percent (50%) of the total number of Lots that may be created within the Common Interest
Community to Owners other than Declarant, not less than thirty-three and one-third percent (331/3%)
of the Members of the Board of Directors must be elected by Owners other than Declarant. The
Declarant's Control Period shall cease on the happening of any of the following events, whichever
occurs earlier: (a) when seventy-five percent (75%) of the total number of Lots that may be created
within the Common Interest Community have been conveyed to Persons other than Declarant and
certificates of occupancy have been issued for residences constructed thereon; (b) two (2) years after
the last conveyance of a Lot by Declarant in the ordinary course of business; (c) two (2) years after
any right to add new units was exercised by Declarant; or (d) when, in its discretion, Declarant so
determines.
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10.5 Determination of Member Voting Privileges. Notwithstanding anything to the
contrary contained herein, only Members whose voting rights are in good standing under the
Association's Bylaws (e.g., voting rights which have not been suspended as provided therein) shall
be entitled to vote on Association matters. In accordance therewith, any and all provisions contained
herein requiring the approval of a requisite percentage of Members of the Association shall be
deemed satisfied when the requisite percentage of Members entitled to vote has been met.
10.6 Registration of Owners. Each Owner shall register with the Association upon such
Owner's acquisition of a Lot within the Common Interest Community. Such registration shall be
completed by such Owner at the time such Owner closes the purchase of a Lot within the Common
Interest Community and shall be delivered to the Association within seven days of the date of such
closing. Such registration shall be in a form prescribed by the Association and shall include: (1) a
mailing address where notices or demands intended to be served upon such Owner may be mailed
by the Association; (2) a designation of a voting representation for such Lot; and (3) an
acknowledgment that such Owner has: (a) received a copy of this Declaration and the Bylaws of the
Association; (b) that such Owner has read and understands the same; and (c) that such Owner is
bound by the terms and provisions of the Declaration and Bylaws.
ARTICLE 11.
DUTIES AND POWERS OF ASSOCIATION
11.1 General Duties and Powers of Association. The Association has been formed to
further the common interests of the Members. The Association, acting through the Board or Persons
to whom the Board has delegated such powers, shall have the duties and powers hereinafter set forth
and, in general, the power to do anything that may be necessary or desirable to further the common
interests of the Members, to maintain, improve, and enhance the common interests of the Members,
to maintain, improve, and enhance Association Properties, and to improve and enhance the
attractiveness, aesthetics, and desirability of the Common Interest Community.
11.2 Duty to Accept Property and Facilities Transferred by Declarant. The
Association shall accept title to any real property, including any Improvements thereon and personal
property transferred to the Association by Declarant, and equipment related thereto, together with
the responsibility to perform any and all Administrative and Public Functions associated therewith,
provided that such property and functions are not inconsistent with the terms of this Declaration.
Property interests transferred to the Association by Declarant may include fee simple title,
easements, leasehold interests, and license to use. Any property or interest in property transferred
to the Association by Declarant shall be within the boundaries of the Common Interest Community;
provided, however, that Declarant shall be entitled to transfer and convey the beneficial use of an
easement, subject to, any obligations thereunder, located outside of the Common Interest Community
but which benefits the Association and the Owners. Any property or interest in property transferred
to the Association by Declarant shall, except to the extent otherwise specifically approved by
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resolution of the Board of Directors, be transferred to the Association free and clear of all monetary
obligations, liens and encumbrances (other than the lien of property taxes and assessments not then
due and payable), but shall be subject to the terms of this Declaration, and easements, covenants,
conditions, restrictions, and equitable servitudes or other encumbrances of record. Except as
otherwise specifically approved by resolution of the Board of Directors, no property or interest in
property transferred to the Association by Declarant shall impose upon the Association any
obligation to make monetary payments to Declarant or any affiliate of Declarant, including, but not
limited to, any purchase price, rent, charge, or fee.
11.3 Duty to Manage and Care for Association Properties. The Association shall
manage, operate, care for, maintain, and repair all Association Properties and keep the same in an
attractive and desirable condition for the use and enjoyment of the Members.
11.4 Duty to Pay Taxes. The Association shall pay all taxes and assessments levied upon
the Association Properties and all taxes and assessments payable by the Association. The
Association shall have the right to contest any such taxes or assessments provided that the
Association shall contest the same by appropriate legal proceedings which shall have the effect of
preventing the collection of the tax or assessment and the sale or foreclosure of any lien for such tax
or assessment and provided that the Association shall keep and hold sufficient funds to pay and
discharge the taxes and assessments, together with any interest and penalties which may accrue with
respect thereto, if the contest of such taxes is unsuccessful.
11.5 Duty to Maintain Casualty Insurance. The Association shall obtain and keep in
full force and effect at all times, to the extent reasonably obtainable, property insurance on all
insurable Association Properties, including, but not limited to, improvements and personal property
owned by the Association or that must be owned by the Association in the future. Such insurance
shall be for broad form covered causes of loss, including, casualty, fire, and extended coverage
insurance with respect to all insurable Improvements and personal property owned by the
Association including, if available at reasonable cost, coverage for vandalism and malicious mischief
and, if available and if deemed appropriate, coverage for flood, earthquake, and war risk. Such
insurance shall, to the extent reasonably obtainable, be for the full insurable replacement cost of the
insured property, less applicable deductible at the time the insurance is purchased and at each
renewal date, exclusive of land, excavation, foundations and other items normally excluded from
property policies.
11.6 Duty to Maintain Liability Insurance. The Association shall obtain and keep in
full force and effect at all times, to the extent reasonably obtainable, general liability insurance
against claims and liabilities arising in connection with the ownership, existence, use, or
management of the Association Properties and covering public liability for bodily injury and property
damage and, if the Association owns or operates motor vehicles, public liability for bodily injury and
property damage arising as a result of the ownership and operation of motor vehicles. Such liability
insurance for other than motor vehicle liability shall, to the extent reasonably obtainable, (a) have
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limits of not less than Five Hundred Thousand Dollars ($500,000.00) per person and One Million
Dollars ($1,000,000.00) per occurrence; (b) insure the Board, the Association, the Manager, if any,
and their respective employees, agents and all Persons acting as agents; (c) include the Declarant as
an additional insured in such Declarant's capacity as a Member or Board member; (d) include the
Members as an additional insured, but only for claims and liabilities arising in connection with the
ownership, existence, use, or management of Association Properties; and (e) cover claims of one or
more insured parties against other insured properties.
11.7 General Provisions Respecting Insurance. Insurance obtained by the Association
may contain such deductible provisions as good business practice may dictate. If the insurance
described is not reasonably available, or if any policy of such insurance is canceled or renewed
without a replacement policy therefor having been obtained by it, the Association shall promptly
cause notice of that fact to be delivered to all Members. The Association may carry any other type
of insurance it considers appropriate in amounts it deems appropriate, to insure the interests of
Association. Insurance policies carried pursuant to Sections 11.6 and 11.7 shall provide that (a) each
Member is an insured Person under the policy with respect to liability arising out of such Member's
interest in the Association Properties or membership in the Association; (b) the insurer waives its
right of subrogation under the policy against the Association, each Member, and any Person claiming
by, through, or under such Member or any other director, agent, or employee of the foregoing; (c)
no act or omission by any Member, unless acting within the scope of such Member's authority on
behalf of the Association, will void the policy or be a condition to recovery under the policy; and (d)
if at the time of a loss under the policy, there is other insurance in the name of a Member covering
the same risk covered by the policy, the Association's policy shall be the primary insurance. The
Association may adopt and establish written nondiscriminatory policies and procedures relating to
the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment.
To the extent the Association settles claims for damages to real property, it shall have the authority
to assess negligent Owners causing such loss or benefitting from such repair or restoration for all
deductibles paid by the Association. Insurance obtained by the Association shall, to the extent
reasonably possible, and provided Declarant reimburses the Association for any additional premium
payable on account thereof, name Declarant as an additional insured and shall contain a waiver of
rights of subrogation as against Declarant. Insurance policies and insurance coverage shall be
reviewed at least annually by the Board of Directors to ascertain whether coverage under the policies
is sufficient in light of the current values of the Association Properties and in light of the possible
or potential liabilities of the Association. The aforementioned insurance may be provided under
blanket policies covering the Association Properties and property of Declarant. In no event shall
insurance coverage obtained or maintained by the Association be bought into contribution with
insurance purchased by Owners, occupants or their Mortgagees.
11.8 Other Insurance and Bonds. The Association shall obtain such other insurance as
may be required by law, including workmen's compensation insurance, and shall have the power to
obtain such other insurance and such fidelity, indemnity, or other bonds as the Association shall
deem necessary or desirable.
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11.9 Duty to Prepare Budgets. The Association shall prepare Budgets for the
Association as elsewhere provided in this Declaration.
11.10 Duty to Levy and Collect Assessments. The Association shall levy and collect
Assessments as elsewhere provided in this Declaration.
11.11 Duty to Keep Association Records. The Association shall keep financial records
sufficiently detailed to enable the Association to comply with the Act, including, but not limited to,
financial records sufficiently detailed to provide a statement setting forth the amount of any unpaid
Assessment currently levied against an Owner.
11.12 Duties with Respect to Architectural Committee Approvals. The Association
shall perform functions to assist the Architectural Committee as elsewhere provided in this
Declaration.
11.13 Power to Acquire Property and Construct Improvements. The Association may
acquire property or interests in property for the common benefit of Owners including Improvements
and personal property. The Association may construct Improvements on property and may demolish
existing Improvements.
11.14 Power to Adopt Rules and Regulations. The Association may adopt, amend,
repeal, and enforce Rules and Regulations as may be deemed necessary or desirable with respect to
the interpretation and implementation of this Declaration, the operation of the Association, the use
and enjoyment of Association Properties, and the use of any other property within the Common
Interest Community, including Lots. Any such Rules and Regulations shall be effectively only upon
adoption by resolution of the Board of Directors. Notice of the adoption, amendment, or repeal any
Rule or Regulation shall be given in writing to each Member at the address for notices to Members
as elsewhere provided in this Declaration or the Bylaws, and copies of the currently effective Rules
and Regulations shall be made available to each Member upon request and payment of the
reasonable expense of copying the same. Each Member shall comply with such Rules and
Regulations and shall see that Persons claiming through such Member comply with such Rules and
Regulations. Such Rules and Regulations shall have the same force and effect as if they were set
forth in and were part of this Declaration. In the event of conflict between the Rules and Regulations
and the provisions of this Declaration, the provisions of this Declaration shall prevail. Such Rules
and Regulations may contain provisions relating to control over limiting access to the Common
Interest Community to Owners, their guests and invitees, establishing traffic safety and parking
regulations and a system of fines for noncompliance.
11.15 Power to Enforce Declaration and Rules and Regulations. The Association shall
have the power to enforce the provisions of this Declaration and the Rules and Regulations and shall
take such action as the Board deems necessary or desirable to cause such compliance by each
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member and each Person claiming by, through, or under such Member ("Related User"). Without
limiting the generality of the foregoing, the Association shall have the power to enforce the
provisions of this Declaration and the Rules and Regulations by any one or more of the following
means: (a) by entry upon any property within the Common Interest Community after Notice and
Hearing (unless a bona fide emergency exists), without liability to the Owner thereof or the
Association, for the purpose of enforcement or causing compliance with this Declaration or the Rules
and Regulations; (b) by commencing and maintaining actions and suits to restrain and enjoin any
breach or threatened breach of the provisions of this Declaration or the Rules and Regulations, by
mandatory injunction or otherwise; (c) by commencing and maintaining actions and suits to recover
damages for breach of any of the provisions of this Declaration or the Rules and Regulations; (d) by
suspension, after Notice and Hearing, of the voting rights of a Member during and for up to ten (10)
days following any breach by such Member or a Related User of such Member of this Declaration
or the Rules and Regulations, unless the breach is a continuing breach in which case such suspension
shall continue for so long as such breach continues; (e) by levying and collecting, after Notice and
Hearing, a Reimbursement Assessment against any Member for breach of this Declaration or the
Rules or Regulations by such Member or Related User of such Member; and (f} uniformly applied
fines and penalties, established in advance in the Rules and Regulations of the Association, from any
Member or Related User for breach of this Declaration for the Rules and Regulations by such
Member or Related User of such Member. In the event that the Association fails to enforce the
provisions of this Declaration as provided for herein, each Member shall, upon thirty (30) days
written notice to the Association, have the power (a) to enforce the provisions hereof by commencing
and maintaining actions and suits to restrain and enjoin any breach or threatened breach of the
provisions of this Declaration, by mandatory injunction or otherwise; or (b) to commence or
maintain actions and suits to recover damages for breach of any of the provisions of this Declaration.
11.16 Power to Grant Easements. The Association shall have the power to grant access,
utility, drainage, water facility, and such other easements in, on, over, or under Association
Properties as it deems necessary or desirable for the benefit of the Common Interest Community.
The Association shall have the further power to designate portions of the Association Properties as
limited Common Area for the benefit of specific Lot owners.
11.17 Power to Convey and Dedicate Property to Governmental Agencies. The
Association, with the approval of Members representing at least eighty percent (80%) of the Owners
entitled to vote (exclusive of the Declarant), shall have the power to grant, convey, dedicate, or
transfer any Association Properties or facilities to any public, governmental or quasi -governmental
agency or authority for such purposes and subject to such terms and conditions as the Association
shall deem appropriate, subject to the provisions elsewhere contained in this Declaration for approval
of the same by Declarant with respect to property transferred to the Association by Declarant.
Further, to the extent that any easement or right-of-way is required under or across any Association
Properties which would no impair or hinder the use thereof, the Association shall have the right to
grant or convey the same without the consent of the Members.
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11.18 Power to Borrow Money and Mortgage Property. The Association shall have the
power to borrow money and, with the approval of Members representing at least eighty percent
(80%) if the Owners entitled to vote (exclusive of the Declarant), to encumber Association Properties
as security for such borrowing, subject to provisions elsewhere contained in this Declaration with
respect to required approvals and consents to such action. An Agreement to convey, or subject the
Association Properties to a security interest in accordance with this Section and Section 11.18 above
shall be evidenced by the execution of an agreement, or ratification thereof, in the same manner as
a deed, by the requisite number of Owners. The agreement shall specify a date after which the
agreement will be void unless Recorded before that date and shall be effective upon Recordation.
11.19 Power to Engage Employees, Agents, and Consultants. The Association shall
have the power to hire and discharge employees and agents and to retain and pay for management,
(e.g., management company), legal and accounting services as may be necessary or desirable in
connection with the performance of any duties or the exercise of any powers of the Association under
this Declaration.
11.20 General Corporate Powers. The Association shall have all of the ordinary powers
and rights of a Colorado corporation formed under the Colorado Revised Nonprofit Corporation Act,
including, without limitation, entering into partnership and other agreement, subject only to such
limitation upon such powers as may be set forth in this Declaration or in the Articles of Incorporation
or Bylaws. The Association shall also have the power to do any and all lawful things which may be
authorized, required, or permitted to be done under this Declaration or Articles of Incorporation or
Bylaws and to do and perform any and all acts which may be necessary or desirable for, or incidental
to, the exercise of any of the express powers or rights of the Association under this Declaration and
the Articles of Incorporation or Bylaws.
11.21 Power to Provide Public Functions. The Association shall have the power to
acquire, construct, operate, manage, maintain, repair, and replace public facilities and to provide
Public Functions as defined in this Declaration. The Association may enter into such cooperative
agreements and arrangements as it may deem necessary and appropriate with any provider of utilities
or public services to Owners, including any special municipal or quasi-municipal districts created
for the purpose of providing such services.
11.22 Power to Provide Special Services to Members. The Association shall have the
power to provide services to a Member or group of Members. Any service or services to a Member
or group of Members shall be provided pursuant to an agreement in writing, or through one or more
Supplemental Declarations, which shall provide for payment to the Association by such Member or
group of Members of the reasonably estimated costs and expenses of the Association of providing
such services, including a fair share of the overhead expenses of the Association and shall contain
reasonable provisions assuring that the obligation to pay for such services shall be binding upon any
heirs, personal representatives, successors and assigns of the Member or group of Members and that
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the payment for such services shall be secured by a lien on the property of the Member or group of
Members.
11.23 Power to Charge for Association Properties, Facilities and Services. The
Association shall have the power to establish reasonable and uniformly applied charges for the use
of Association Properties, facilities and services. The charges may include reasonable admission or
other fees for any special or extraordinary use of Association Properties, facilities or services of the
Association such as special parking privileges, special recreation facilities, conference rooms,
instruction, day care or child care services, or similar uses beyond the ordinary use of Association
Properties, facilities, and services. Such charges or fees shall be set forth in schedules of charges and
fees adopted from time to time by the Board of Directors.
11.24 Power to Employ Managers. The Association shall have the power to retain and
pay for the services of a manager or managers, which may be an affiliate of Declarant, to undertake
any of the management or Public Functions for which the Association has responsibility under this
Declaration to the extent deemed advisable by the Association, and may delegate any of its duties,
powers, or functions to any such Manager. Any contract or agreement with any such Manager shall
be terminable by the Association for cause on no more than thirty (30) days prior written notice, and
shall be terminable by the Association without cause and without payment of a termination fee on
no more than ninety (90) days prior written notice. Any such contract or agreement shall be for a
term of no more than one (1) year and may be subject to renewal for succeeding terms of no more
than one (1) year each. Notwithstanding any delegation to any such manager of any duties, powers,
or functions of the Association, the Association and its Board of Directors shall remain ultimately
responsible for the performance and exercise of such duties, powers, and functions.
11.25 Powers Provided by Law. In addition to the above -referenced powers, the
Association shall have full power to take and perform any and of all actions which may be lawfully
taken by the Association under the Colorado Revised Nonprofit Corporation Act and the Colorado
Common Interest Ownership Act, as either may be amended from time to time.
ARTICLE 12.
ASSESSMENTS
12.1 Assessment Obligation and Lien. Declarant, for each Lot shall be deemed to
covenant and agree, and each Lot Owner, by acceptance of a deed therefor (including a public
trustee's or sheriff's deed), whether or not it shall be so expressed in any such deed or other
instrument of conveyance, shall be deemed to covenant and agree, to pay to the Association: (1)
Regular Assessments or charges, (2) Special Assessments, and (3) Reimbursement Assessments,
such assessments to be established and collected as hereinafter provided (collectively the
"Assessments"). The Assessments, together with interest, late charges, costs, and reasonable
attorneys' fees, shall be a continuing lien and security interest upon the Lot against which each such
Assessment is charged. The obligation for such payments by each Lot Owner to the Association is
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an independent covenant, with all amounts due from time to time payable in full without notice
(except as other wise expressly provided in this Declaration) or demand, and without set-off or
deduction of any kind or nature. Each Lot Owner is liable for Assessments made against such
Owner' s Lot during his period of ownership of the Lot. Each Assessment, together with interest, late
charges, costs and reasonable attorneys' fees, shall also be the joint, several and personal obligation
of each Person who was an Owner of such Lot at the time when the Assessment became due. Upon
the transfer of title to a Lot, the transferor and the transferee shall jointly, severally and personally
liable for all unpaid Assessments and other charges due to the Association prior to the date of
transfer, and the transferee shall be personally Iiable for all such Assessments and charges becoming
due thereafter.
12.2 Statutory Lien. The Association has a statutory lien pursuant to Section 38-33.3-316
of the Act on the Lot of an Owner for all Assessments levied against such Lot or fines imposed
against such Lot's Owner from the time the Assessment or fine becomes due (the "Assessment
Lien"). Fees, charges, late charges, attorneys' fees, fines and interest charged by the Association
pursuant to the Act or this Declaration or any Supplemental Declaration are enforceable as
Assessments. The amount of the lien shall include all such items from time to time such items
become due. If an Assessment is payable installments, the Association has an Assessment Lien for
each installment from the time it becomes due, including the due date set by the Board's acceleration
of installment obligations. An Assessment Lien is extinguished unless proceedings to enforce the
lien are instituted within 6 years after the full amount of Assessments becomes due.
12.3 Lien Superior to Homestead and Other Exemptions. An Assessment Lien shall
be superior to any homestead exemption now or hereafter provided by the laws of the State of
Colorado or any exemption now or hereafter provided by the laws of the United States. The
acceptance of a deed to a Lot shall constitute a waiver of the homestead and any other exemption as
against said Assessment Lien.
12.4 Priority of Lien. An Assessment Lien is prior to all other liens and encumbrances
on a Lot except as follows:
12.4.1 Liens and encumbrances Recorded before the recordation of this Declaration;
12.4.2 A security interest on the Lot which has priority over all other security
interests on the Lot and which was Recorded before the date on which the Assessment sought
to be enforced become delinquent. An Assessment Lien is prior to the security interest
described in the preceding sentence to the extent of an amount equal to the Regular
Assessments (based on a Budget adopted by the Association pursuant to Section 12.7 below)
which would have become due, in the absence of any acceleration, during the six (6) months
immediately preceding institution by the Association or any party holding a lien senior to any
part of the Association lien created under this Article 12 of an action or a nonjudicial
foreclosure either to enforce or to extinguish the lien;
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12.4.3 Liens for real estate taxes and other governmental assessments or charges
against the Lot; and
12.4.4 As may otherwise be set forth in the Act. The priority of mechanics' and
materialmen's liens is not affected by the Act.
This Article 12 does not prohibit an action or suit to recover sums for which this Article 12 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 lien for an Assessment.
12.5 Perfection of Lien. The Recording of this Declaration constitutes record notice and
perfection of the statutory lien. No further Recordation of any claim of lien for Assessments is
required; however, a claim may be Recorded at the Association's option, in which event costs and
attorneys' fees incurred in connection with the preparation and filing of such claim shall be assessed
against the Lot as a Reimbursement Assessment.
12.6 Regular Assessments.
12.6.1 A Regular Assessment shall be made annually against each Lot based upon
an annual Budget prepared by the Board, for purposes of paying (i) the annual costs of
operating and administering the Association and all other Common Expenses, (ii) reasonable
reserves for contingencies, replacements, and other proper purposes, (iii) the costs of services
rendered or expenditures incurred by the Association to or for less than all Lots, which costs
and expenses shall be assessed only the Lots benefitted and then equally among them, (iv)
such other matters as may be reasonably determined by the Board to be the subject of a
Regular Assessment;
12.6.2 Regular Assessment shall be allocated in accordance with the Allocated
Interests of each Lot in the Common Interest Community, except that (i) any Common
Expense or portion thereof benefitting fewer than all of the Lots shall be assessed exclusively
against the Lots benefitted, and (ii) the costs of insurance shall be assessed in proportion to
risk, and the costs of utilities shall be assessed in proportion to usage. If Common Expense
liabilities are reallocated, Common Expense Assessments and any installment thereof not yet
due shall be reallocated in accordance with the reallocated Common Expense liabilities.
12.6.3 Regular Assessments shall be levied on a calendar year basis, except that the
initial Regular Assessment period shall commence on the first day of the calendar month or
quarter in which the first Lot is conveyed by Declarant to a Person other than Declarant.
Regular Assessments shall be paid in installments on a monthly, quarterly or semi-annual
basis, as the Board may determine from time to time, and shall be due either on the first day
of each calendar month or on the first day of each calendar year quarter (January l , April 1,
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July 1, and October 1), or on the first day of a semi-annual period (e.g., January 1, July 1) as
appropriate. Unless and until changed to a monthly or semi-annual system by the Board,
Regular Assessments shall be due and payable on the first day of each calendar quarter. Any
Owner acquiring a Lot between installment due dates shall pay a pro rata share of the
immediately preceding installment.
12.6.4 The Board shall fix the amount of the Regular Assessment, using the Budge
procedure described below, at least thirty (30) days before the end of each calendar year.
Written notice of the Regular Assessment shall be sent to each Owner. Failure of the Board
timely to fix and levy the Regular Assessments for any year or to send a notice thereof to any
Owner shall not relieve or release any Owner from liability for payment of Regular
Assessments or any installments thereof for that or subsequent years as soon as the Board
levies the Regular Assessments and provides notice thereof.
12.6.5 In accordance with Section 38-33.3-314 of the Act, any surplus funds
remaining after payment of or provision for Association expenses and any prepayment of or
provision for reserves shall be credited to the Owners to reduce their future Regular
Assessments.
12.7 Association Budget. No later than October 15th of each year, the Board shall prepare
or cause to be prepared an operating budge (the "Budget") for the next calendar year. The Budget
shall provide for the allocation of any surplus funds remaining from any previous Budget period.
Within thirty (30) days after adoption of any proposed Budget for the Association, the Board shall
mail, by ordinary first-class mail, or otherwise deliver, a summary of the Budget to all the Lot
Owners and shall set a date for a meeting of the Owners to consider ratification of the Budget not
less than fourteen (14) nor more than sixty (60) days after the mailing or other delivery of the
summary. Such meeting may, but need not be, concurrent with the annual meeting of the Members
as provided in the Bylaws. Unless at that meeting sixty-seven percent (67%) of all Lot Owners reject
the Budget, the Budget shall be ratified, whether or not a quorum of Owners is present. In the event
that the proposed Budget is rejected, the Budget last ratified by the Owners shall be continued until
such time as the Owners ratify a subsequent Budget proposed by the Board.
12.8 Special Assessments. In addition to the Regular Assessments and Reimbursement
Assessments authorized in this Article 12, the Board may levy, in any assessment year, a Special
Assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of
any construction, reconstruction, repair, maintenance or replacement of capital improvements
(including related fixtures and personal property and including, without limitation, irrigation
systems, ditches and ditch systems) to or upon or serving the Common Interest Community, or for
excess reconstruction costs or other extraordinary expenses, or for funding any operating deficit of
the Association. Except in the event of an emergency, where no membership vote shall be required,
the Board shall not levy a Special Assessment without the approval of the Lot Owners in the
Common Interest Community as provided below.
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Written notice of any meeting called for the purpose of levying a Special Assessment
shall be sent to all Owners no less than thirty (30) or more than fifty (50) days before the meeting.
At the meeting, the presence of Owners in person or by proxy that are entitled to cast sixty percent
(60%) of the total votes in the Association shall constitute a quorum. If the required quorum is not
present, another meeting may be called pursuant to the same notice requirement, and the required
quorum at this second meeting shall be only thirty percent (30%) of the total votes in the
Association. No such second meeting shall be held more than sixty (60) days following the date of
the first meeting.
Provided a quorum of Owners entitled to vote is present in person or by proxy, in
accordance with the quorum requirements set forth in the preceding paragraph, then the affirmative
vote of a majority of the Owners so present shall constitute approval of the proposed Special
Assessment.
For purposes of this Section 12.8, the term "emergency" shall mean any
circumstances or set of circumstances which pose an imminent threat of loss, damage or injury,
actual or threatened, to persons or property. Special Assessments shall be allocated in the same
manner as Regular Assessments, that is, in accordance with the Allocated Interests of each Lot in
the Common Interest Community, and shall be due and payable to the Association on the due date
fixed by the Board in the notice given to the Owners of such Special Assessment, which due date
shall be no earlier than thirty (30) days after the giving of such notice.
12.9 Reimbursement Assessments. In addition to the Regular and Special Assessments
authorized hereunder, the Board may levy against any Owner or Owners, at any time and from time
to time, a Reimbursement Assessment for purposes of reimbursing the Association for all costs and
expenses incurred by it in enforcing any provision of or in remedying any violation of this
Declaration, or of any Supplemental Declaration, the Articles, Bylaws, Rules and Regulations or any
approvals granted by the Architectural Committee, by such Owner or Owners, their Occupant(s), or
their agents, employees or contractors. Reimbursement Assessments may also be made by the Board
for any other purposes for which this Declaration provides for the levying of a Reimbursement
Assessment. Finally, and in addition to the foregoing, a Reimbursement Assessment may also be
levied in the form of a reasonable fine against an Owner for a violation of this Declaration, a
Supplemental Declaration, the Articles, Bylaws, or the Rules and Regulations, but only after the
Owner(s) to be so fined have been provided with Notice and Hearing. Reimbursement Assessments
shall be due and payable to the Association on the due date fixed by the Board in the notice given
to the Owner(s) of such Reimbursement Assessment, which date shall be no later than thirty (30)
days after the giving of such notice.
12.10 Effect of Nonpayment of Assessments; Remedies of the Association. Any
Assessment or portion or installment thereof which is not paid when due (or for which a bad check
is issued) shall be deemed delinquent and shall bear interest from and after the due date at the rate
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of interest set by the Board from time to time, which shall not be less than twelve percent (12%) nor
more than twenty-one percent (21 %) per year, and the Board may also assess a late charge (and/or
a bad check charge) thereon. The Board may also elect to accelerate the installment obligations of
any Regular Assessment for which an installment is delinquent. The Board may also suspend the
delinquent Owner's use of the Common Areas and Association services or benefits. The delinquent
Owner shall also be liable for all costs, including attorneys' fees, which may be incurred by the
Association in collecting a delinquent Assessment, which collection costs shall be added to the
delinquent Assessment. The Board may but shall not be required to 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 Board, and shall set forth the amount of the unpaid
Assessment or charge, the name of the delinquent 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 Association may also bring an action at law against the Owner personally obligated to pay the
delinquent Assessment and/or foreclose the lien against said Owner's Lot in the discretion of the
Association. No Owner may exempt himself or otherwise avoid liability for the Assessments
provided for herein by waiver of the use or enjoyment of any of the Common Area or by
abandonment of the Lot against which the Assessments are made. Where Assessments that are due
from any Owner are more than ninety (90) days delinquent, the Board may temporarily suspend any
or all Association services or benefits to the delinquent Owner and his Lot including the right to use
Common Area, until all delinquent Assessments are fully paid.
In any action by the Association to collect Assessments or to foreclose a lien for
unpaid Assessments, the court may appoint a receiver to collect all sums alleged to be due from the
Lot Owners prior to or during the pending of the action. The court may order the receiver to pay any
sums held by the receiver to the Association during the pending of the action to the extent of the
Association's Regular Assessments.
12.11 Statement of Unpaid Assessments. The Association shall furnish to an Owner or
such Owner's designee or to a holder of a security interest or its designee upon written request,
delivered personally or by facsimile transmittal or by certified mail, first class postage prepaid, return
receipt requested, to the Association, a written statement setting forth the amount of unpaid
Assessments currently levied against such Owner's Lot, whether delinquent or not. The statement
shall be furnished within fourteen (14) days after receipt of the request and is binding on the
Association, the Board, and every Owner. If no statement is furnished either delivered personally
or by facsimile transmission or by certified mail, first-class postage prepaid, return receipt requested,
to the inquiring party, then the Association shall have no right to assert a lien upon the Lot for unpaid
Assessments which were due as of the date of the request.
12.12 Assessments for Tort Liability. In the event of any tort liability against the
Association which is not covered completely by insurance, each Owner shall contribute for the
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payment of such liability as a Special Assessment. The Association may however, require a larger
contribution from fewer than all Owners under any legal or equitable principles regarding liability
for negligent or willful acts or omissions.
ARTICLE 13.
EASEMENTS AND OPEN SPACE
13.1 Easements Shown on Plat. The Association is entitled to use such easements as are
reflected on the Plat. The Association shall have no obligation to pay any amount for the use and
enjoyment of such easements. The Association shall pay for the cost of maintaining and repairing
any Improvements which it places on any easements.
13.2 Easements for Access and Repairs. The Association shall be entitled to an
easement across any of the Lots for the purposes of accessing any Association Properties, protecting
any Association Properties, making necessary repairs and replacements, investigating and responding
to emergency circumstances and conducting brush -clearing, tree -pruning and other fire protection
husbandry programs for the reduction of fire hazards in the Subdivision. The Association may
access all Lots at reasonable times to determine compliance with the conditions of approvals of the
Subdivision granted by the Garfield County Commissioners and to determine and enforce
compliance with all of the provisions of this Declaration.
13.3 No Access To or From Sunset Lane. All but emergency access shall be prohibited
through Sunset Lane (east of the Subdivision) for so long as said road remains a private road.
13.4 Open Space Area. Neither the Owners of Lots 7, 8, 9 or 10 nor any other Person will
be permitted to disturb in any way the open space easement upon such Lots. This easement is a
perpetual, non-exclusive easement for purposes of drainage and open space which shall be
maintained by the Association as open space for the use and benefit of the Members and their guests
in accordance with the Rules and Regulations. The Association may construct and maintain such
landscaping, recreational and other Improvements within the open space easement as are not
inconsistent with the drainage purposes of the easement.
ARTICLE 14.
GENERAL PROVISIONS
14.1 Declaration to Run. All of the covenants, conditions and restrictions contained in
this Declaration shall be a burden on the title to all of the lands in the Subdivision, the benefits
thereof shall inure to the Owners, and the benefits and burdens of all said covenants, conditions and
restrictions shall run with the title to all of the lands in the Subdivision.
14.2 Termination of Declaration. In the event this Declaration has not been sooner
lawfully terminated pursuant to any applicable laws of the State of Colorado and Garfield County,
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Colorado, and the provisions herein contained, this Declaration may be terminated on January 1,
2025, by a vote of seventy-five percent (75%) of the votes entitled to be cast by the Members of the
Association at a meeting of the Members duly held. If this Declaration is not so terminated, then it
shall continue to be in full force and effect for successive twenty-five (25) year periods unless, at the
close of a twenty-five (25) year period, this Declaration is terminated by a vote of seventy-five (75%)
of the votes entitled to be cast by the Members of the Association at a meeting of the Members duly
held. In the event of any such termination by the members, a properly certified copy of the resolution
of termination shall be Recorded not more than six (6) months after the meeting at which such vote
is cast.
14.3 Amendment of Declaration. Until the first Lot subject to this Declaration has been
conveyed by Declarant by a Recorded deed, any of the provisions, covenants, conditions, restrictions
and equitable servitudes contained in this Declaration may be amended or terminated by Declarant
by the Recordation of a written instrument, executed by Declarant, setting forth such amendment or
termination. Thereafter, this Declaration may only be amended by a vote of seventy-five percent
(75%) of the votes entitled to be cast by the Members of the Association, said vote to be cast at a
meeting of the Members duly held, provided a properly certified copy of the resolution of
amendment be Recorded no more than six (6) months after said meeting.
14.4 Severability. Should any part or parts of this Declaration be declared invalid or
unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of
the remaining provisions of this Declaration.
14.5 Paragraph Headings. The paragraph headings within this Declaration are for
convenience only and shall not be construed to be a specific part of the terms hereof.
14.6 Limited Liability. The Association and the Board of Directors 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 without malice. The Owners severally agree to indemnify the
Association and the Board against loss resulting from such action or failure to act if such action or
failure to act was in good faith and without malice.
14.7 Alternative Dispute Resolution. Except as may otherwise be provided herein and
alter exercising all rights and remedies provided hereunder or under the Bylaws, any claim,
controversy, or dispute over any Special Assessment or Reimbursement Assessment, or any decision
of the Architectural Committee, or any other matters as the Association and the affected party may
agree, shall be resolved by binding arbitration in accordance with the Colorado Arbitration Act. The
parties to such dispute shall agree upon a single arbitrator who shall be an experienced operator or
manager of a planned community as defined by the Act. In the event the parties are unable to agree
upon an arbitrator within sixty (60) days after written notice, the presiding Judge of the District
Court of Garfield County shall appoint an arbitrator qualified as set forth herein upon application by
a party. Judgment upon the determination of the arbitrator shall be entered by the District Court for
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Garfield County. Any and all discovery conducted in conjunction with such arbitration shall be in
accordance with the limited discovery provisions of the Colorado Rules of Civil Procedure.
14.8 Rights of First Mortgagees. Upon the fling of a written request therefor with the
Association, the holder of a first Mortgage on any Lot in the Common Interest Community ("First
Mortgagee") shall be entitled to:
14.8.1 Written notice from the Association that the Owner of the subject Lot is
delinquent in the payment of Assessments thereon;
hours;
14.8.2 Inspect the books and records of the Association during normal business
14.8.3 Receive copies of annual Association financial statements;
14.8.4 Receive written notice of meetings of the Association where matters will be
considered that, if approved, will require the consent of First Mortgagees or some of them;
14.8.5 Receive written notice of condemnation proceedings affecting any Common
Areas; and
14.8.6 Receive written notice of the lapse of any insurance that the Association is
required to maintain under this Declaration.
In addition, any First Mortgagee shall be entitled to pay any taxes or other charges which are
in default and which may or have become a lien against the Common Areas and may pay any
overdue premiums on hazard or general liability insurance policies covering the Common Areas, and
shall be entitled to immediate reimbursement therefore from the Association, unless the Association
is contesting any unpaid taxes or other charges and has set aside sufficient funds to pay the contested
amounts if necessary.
14.9 Association Right to Mortgage Information. Each Owner hereby authorizes any
First Mortgagee holding a Mortgage on such Owner's Lot to furnish information to the Association
concerning the status of such First Mortgage and the loan which it secures.
14.10 Notice. Each Lot Owner, and each First Mortgagee if it so elects, shall register its
mailing address from time to time with the Association. Except as otherwise specifically provided
in this Declaration, any notice permitted or required to be given hereunder shall be in writing and
may be delivered either personally, or by facsimile transmissions, or by mail. Notices delivered
personally or sent by facsimile transmission shall be deemed given on the date so delivered or sent.
If delivery is made by mail, it shall be deemed to have been delivered two (2) business days after a
copy of the same has been posted in the first-class U.S. Mail with adequate postage affixed,
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addressed to the receiving party at the address last registered by such party with the Association, or
in the case of a Lot Owner that has not provided such an address, to the Lot of that Owner. Notices
to the Association shall be sent to such address as it may from time to time designate in writing to
each Owner.
14.11 Persons Entitled to Enforce Declaration. The Association, acting by authority of
the Board, and any Member entitled to vote (as more fully provided herein) shall have the right to
enforce any or all of the provisions, covenants, conditions, restrictions, and equitable servitudes
contained in this Declaration against any property within the Common Interest Community and the
Owner thereof. Notwithstanding the foregoing, prior to the enforcement of the terms and provisions
of this Declaration by any Member, such Member shall provide the Association with thirty (30) days
prior written notice of such Member's intention to do so. Such notice will state such Member's
claim for enforcement under the Declaration. In the event the Association fails to initiate action on
such Member's claim for enforcement within thirty (30) days of the Association's receipt of such
notice, such Member shall be entitled to proceed with the enforcement of such claim individually.
The rights of enforcement provided herein shall include the right to levy fines and/or penalties as the
Board may reasonably determine and/or bring an action for damages as well as an action to enjoin
any violation of any provision of this Declaration.
14.12 Interpretation of Declaration and Supplemental Declarations. The provisions
of this Declaration and of any Supplemental Declaration shall be liberally construed to effectuate its
purposes of creating a common and general plan for the development, improvement, enhancement,
protection and enjoyment of the Common Interest Community, and to the extent possible, shall be
construed so as to be consistent with the Act. In the event that any of the terms and conditions of
this Declaration or of any Supplemental Declaration are determined to be inconsistent with the Act,
the Act shall control.
14.13 Violations Constitute a Nuisance. Any violation of any provision, covenant,
condition, restriction, and equitable servitude contained in this Declaration, whether by act or
omission, is hereby declared to be a nuisance and may be enjoined or abated, whether or not the
relief sought is for negative or affirmative action, by any Person entitled to enforce the provisions
of this Declaration.
14.14 Enforcement of Self -Help. Declarant or the Association, or any authorized agent
of either of them, may enforce, by self-help, any of the provisions, covenants, conditions, restrictions
and equitable servitudes contained in this Declaration, provided such self-help is preceded by Notice
and Hearing.
14.15 Violations of Law. Any violation of any federal, state, municipal, or local law,
ordinance, rule or regulation, pertaining to the ownership, occupation, or use of any property within
the Common Interest Community is hereby declared to be a violation of this Declaration and shall
be subject to any and all enforcement procedures set forth in this Declaration.
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14.16 Remedies Cumulative. Each remedy provided under this Declaration is cumulative
and not exclusive.
14.17 Costs and Attorneys' Fees. In any action or proceeding under this Declaration, the
prevailing party shall be entitled to recover its costs and expenses in connection therewith including
reasonable attorneys' fees.
14.18 No Representations or Warranties. No representations or warranties of any kind,
express or implied, shall be deemed to have been given or made by Declarant or its agents or
employees in connection with any portion of the Common Interest Community, or any Improvement
thereon, its or their physical condition, zoning, compliance with applicable laws, fitness for intended
use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes
or regulation thereof, unless and except as shall be specifically set forth in writing herein, in any
purchase agreement executed by Declarant, or in any closing document related thereto.
14.19 Governing Law; Jurisdiction. This Declaration shall be construed and governed
under the laws of the State of Colorado. Any legal action brought in connection with this
Declaration or any Supplemental Declaration shall be commenced in either the County Court or the
District Court, as appropriate, for Garfield County, Colorado, and by acceptance of a deed to a Lot
each Lot Owner voluntarily submits to the jurisdiction of such Court.
14.20 Number and Gender. Unless the context requires a contrary construction, the
singular shall include the plural, and the plural, the singular, and the masculine, feminine, or neuter
genders shall each include the masculine, feminine, and neuter genders.
14.21 Disclaimer Regarding Safety. DECLARANT AND THE ASSOCIATION
HEREBY DISCLAIM ANY OBLIGATION REGARDING THE SECURITY OF ANY PERSONS
OR PROPERTY WITHIN THE COMMON INTEREST COMMUNITY. ANY OWNER OF
PROPERTY WITHIN THE COMMON INTEREST COMMUNITY ACKNOWLEDGES THAT
DECLARANT AND THE ASSOCIATION ARE ONLY OBLIGATED TO DO THOSE ACTS
SPECIFICALLY ENUMERATED HEREIN, OR IN THE ARTICLES OF INCORPORATION
AND BYLAWS, AND IS NOT OBLIGATED TO DO ANY OTHER ACTS WITH RESPECT TO
THE SAFETY OR PROTECTION OF PERSONS OR PROPERTY WITHIN THE COMMON
INTEREST COMMUNITY.
Declaration of Protective Covenants
Whitecloud Ridge Subdivision Page 43 of 44
1 111111 11111 111111 11111 111111 11111 111111111111111111111
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IN WITNESS WHEREOF, this Declaration of Protective Covenants for Whitecloud Ridge
Subdivision has been executed as of the day and year first above written.
Niewtoo /-e-v,
THOMAS W. LEVITT
STATE OF
COUNTY 0
)
) ss.
MOI' ',Y G. LEVITT
034The fore _LC ing instrument was acknowledged and sworn to before me this
v{,OP.k , 2000, by THOMAS W. LEVITT and MOLLY G. LEVITT.
d ..;��1 eoal.
RAILOSICI
yP —Notary Sall
STATE OF MISSOURI
Jackson Coney
My Commission Expires: June 15,
Address: t 51 i
My commission expires:��
itt(--
day of
tY1_ ., -42
d awp-d oc 11 g J l evi tticove nan t. 3 51
Declaration of Protective Covenants
Whitecloud Ridge Subdivision Page 44 of 44
EXHIBIT A
LEGAL DESCRIPTION OF COMMON INTEREST COMMUNITY
Lots 1-13, inclusive, Whitecloud Ridge Subdivision, according to the
Final Plat thereof recorded in the records of Garfield County,
Colorado on October 20, 2000, as Reception No. 57//55-
EXHIBIT B
oo ALLOCATED INTERESTS
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' a Lots 1-13, inclusive Each Lot: 1/13 Each Lot: 1 vote
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EXHIBIT C
LEGAL DESCRIPTION OF ANNEXABLE PROPERTY
A PARCEL OF LAND SITUATED IN THE SWI/4 AND THE W1/2SE1/4 OF SECTION 28,
TOWNSHIP 7 SOUTH, RANGE 87 WEST OF THE SIXTH PRINCIPAL MERIDIAN,
COUNTY OF GARFIELD, STATE OF COLORADO; SAID PARCEL BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SECTION 28, A GARFIELD
COUNTY SURVEYOR BRASS CAP IN PLACE; THENCE N 63°50'49" E 1573.54 FEET TO
A POINT ON THE EASTERLY LINE OF THE SW1/4SW1/4 OF SAID SECTION 28, THE
TRUE POINT OF BEGINNING; THENCE N 03°23'54" E ALONG SAID EASTERLY LINE
114.62 FEET; THENCE LEAVING SAID EASTERLY LINE S 62°14'46" W 15.12 FEET;
THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
500.00 FEET AND A CENTRAL ANGLE OF 17°43'43" A DISTANCE OF 154.71 FEET
(CHORD BEARS S 71°06'37" W 154.09 FEET); THENCE S 79°58'28" W 155.83 FEET;
THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
170.00 FEET AND A CENTRAL ANGLE OF 68°26'41" A DISTANCE OF 203.08 FEET
(CHORD BEARS N 65°48'11" W 191.22 FEET); THENCE N 31°34'50" W 76.82 FEET;
THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 400.00
FEET AND A CENTRAL ANGLE OF 05°08'52" A DISTANCE OF 35.94 FEET (CHORD
BEARS N 34°09'16" W 35.93 FEET); THENCE N 36°43'42" W 100.68 FEET; THENCE
ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 280.00 FEET
AND A CENTRAL ANGLE OF 17°47'49" A DISTANCE OF 86.97 FEET (CHORD BEARS
N 38°13'21" E 86.62 FEET); THENCE N 29°19'26" E 99.23 FEET; THENCE ALONG THE
ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 220.00 FEET AND A
CENTRAL ANGLE OF 52°15'54" A DISTANCE OF 200.68 FEET (CHORD BEARS
N 55°27'23" E 193.80 FEET); THENCE N 81°35'20" E 281.45 FEET; THENCE ALONG
THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 120.00 FEET AND A
CENTRAL ANGLE OF 77°47'32" A DISTANCE OF 162.93 FEET (CHORD BEARS
N 42°41'34" E 150.70 FEET) TO A POINT ON THE EASTERLY LINE OF THE
NW1 /4SW1 /4 OF SAID SECTION 28; THENCE N 03°23'54" E ALONG SAID EASTERLY
LINE 105.57 FEET; THENCE LEAVING SAID EASTERLY LINE S 89°45'54" E 603.84
FEET; THENCE N 69°11'09" E 876.78 FEET TO A POINT ON THE CENTERLINE OF
HARMONY LANE; THENCE THE FOLLOWING THIRTEEN (13) COURSES ALONG SAID
CENTERLINE:
1. S 00°34'25" W 226.26 FEET
2. S 02°28'40" E 91.04 FEET
3. S 06°19'45" E 119.31 FEET
4. N 89°44'08" W 5.95 FEET
1111111 11111 111111 11111 111111 11111 11111 111 1111111 11 1111
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5. S 01°14'48" E 280.88 FEET
6. S 02°01'27" W 115.18 FEET
7. S 00°39'06" W 148.53 FEET
8. S 01°44'55" E 133.99 FEET
9. S 04°29'01" E 106.53 FEET
10. ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF
1475.00 FEET AND A CENTRAL ANGLE OF 03°53'15" A DISTANCE OF
100.08 FEET (CHORD BEARS S 06°25'38" E 100.06 FEET)
11. S 08°22'15" E 67.98 FEET
12. ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
126.84 FEET AND A CENTRAL ANGLE OF 43°01'03", A DISTANCE OF
95.23 FEET (CHORD BEARS S 13°08'18" W 93.01 FEET)
13. S 38°11'47" W 18.82 FEET
THENCE LEAVING SAID CENTERLINE S 89°43'12" W 30.74 FEET; THENCE
N 01°52'30" E 329.19 FEET; THENCE N 89°58'25" W 110.00 FEET; THENCE
N 02°06'23" E 49.20 FEET; THENCE S 89°56'49" W 1353.02 FEET TO THE TRUE
POINT OF BEGINNING; SAID PARCEL CONTAINING 36.607 ACRES, MORE OR LESS.