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Home My WebLink About1.09 Master DeclarationFlying M Ranch Planned Unit Development Application Garfield County, Colorado Exhibit I Master Declaration for The Flying M Ranch P.U.D. MASTER DECLARATION FOR THE FLYING M RANCH PLANNED UNIT DEVELOPMENT [Draft for Application Purposes; Subject to Modification – Version 11-30-22] [Insert table of contents] MASTER DECLARATION FOR THE FLYING M RANCH PLANNED UNIT DEVELOPMENT THIS MASTER DECLARATION FOR THE FLYING M RANCH PLANNED UNIT DEVELOPMENT (the "Declaration") dated December 2, 2022, shall be effective upon recordation and is made by Eastbank, LLC, a Colorado limited liability company ("Declarant"). Declarant is the owner of certain real property in Garfield County, Colorado, more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"). Declarant hereby makes the following grants, submissions, and declarations: ARTICLE I IMPOSITION OF COVENANTS Section 1.01 Purpose. The purpose of this Declaration is to create a Planned Community under the Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-101 et seq. (the “Act”), known as the “Flying M Ranch Planned Unit Development” (the "Project"). Section 1.02 Intention of Declarant. Declarant desires to protect the value and desirability of the Project, to further a plan for the improvement, sale and ownership of the Lots in the Project, to create a harmonious and attractive development and to promote and safeguard the health, comfort, safety, convenience, and welfare of the Owners. Section 1.03 Submission to Declaration. To accomplish the purposes and intentions recited above, Declarant hereby imposes upon all of the Property the covenants, conditions, restrictions, easements, reservations, rights-of-way, and other provisions of this Declaration, and Declarant hereby declares that all of the Property shall be owned, held, sold, conveyed, encumbered, leased, rented, occupied, maintained, and improved subject to the provisions of this Declaration. Section 1.04 Covenants Running With the Land. All provisions of this Declaration shall be deemed to be covenants running with the land, or as equitable servitudes, as the case may be. The benefits, burdens, and other provisions contained in this Declaration shall be binding upon and shall inure to the benefit of Declarant, all Owners and their respective heirs, executors, administrators, personal representatives, successors, and assigns. ARTICLE II DEFINITIONS The following words, when used in this Declaration, shall have the meanings designated below unless the context expressly requires otherwise: Section 2.01 "Act" means the Colorado Common Interest Ownership Act as defined in ARTICLE I hereof. It is the intent of Declarant that Flying M Ranch Planned Unit Development be entitled to the exemption for new small planned communities as set forth in C.R.S. § 38-33.3-116(2)(2018) to the extent permitted by law. Section 2.02 "Additional Reserved Rights" has the meaning set forth in Section 11.02. Section 2.03 "Allocated Interests" means the undivided interest in the Common Elements, the Common Expense Liability, and the votes in the Association allocated to each of the Lots in the Project. The formulae used to establish the Allocated Interests are described in ARTICLE IV. The Allocated Interests for each Lot are set forth on Exhibit B attached hereto and incorporated herein by this reference. Section 2.04 "Articles of Incorporation" means the Articles of Incorporation of the Flying M Ranch Planned Unit Development Association, Inc. filed with the Colorado Secretary of State, as amended from time to time. Section 2.05 "Assessments" means the annual, special and Default Assessments levied Pursuant to this Declaration. Section 2.06 "Association" means the Flying M Ranch Planned Unit Development Association, Inc., a Colorado nonprofit corporation, and its successors and assigns. Section 2.07 "Board of Directors" or "Board" means the governing body of the Association, as provided in this Declaration and in the Articles of Incorporation and Bylaws of the Association, and defined as the "executive board" in the Act. Section 2.08 "Budget" means the annual budget of the projected revenues, expenditures (both ordinary and capital) and reserves for the Association. Section 2.09 "Bylaws" means the bylaws adopted by the Association, as amended from time to time. Section 2.10 "Common Elements" means all portions of the Project excluding the Lots, General Common Elements, and Limited Common Elements. The Common Elements shall be owned by the Owners, each Lot being allocated an undivided interest in the Common Elements as allocated pursuant to ARTICLE IV. Section 2.11 "Common Expenses" means expenditures made or liabilities incurred by or on behalf of the Association, including General Common Expenses and Limited Common Expense. Section 2.12 "Common Expense Liability" means the liability for Common Expenses allocated to each Lot pursuant to this Declaration. Section 2.13 "Project Documents" means the basic documents creating and governing the Project, including, but not limited to, this Declaration, the Articles of Incorporation and Bylaws, the Map, and any Rules and Regulations, and any other Documents or provisions adopted under such documents by the Association or the Board of Directors. Section 2.14 "Costs of Enforcement" means all monetary fees, late charges, interest, expenses, costs, including receiver's and appraiser's fees, collection agency fees, and reasonable attorneys' fees and disbursements, including legal assistants' fees, incurred by the Association in connection with the collection of Assessments or in connection with the enforcement of the terms, conditions and obligations of the Project Documents. Section 2.15 "County" means the County of Garfield, Colorado. Section 2.16 "Declarant" means Eastbank, LLC, a Colorado limited liability company, and its successors and assigns as the same may be specified in a recorded instrument specifically describing those rights of Declarant transferred to a successor or assignee. Section 2.17 "Declaration" means this Declaration, together with any supplement or amendment to this Declaration, and any other recorded instrument however denominated that exercises a Development Right and is executed by Declarant and recorded in the Records. The term Declaration includes the Map, any certificate of completion (as defined in the Act) that is separate from the Map, and all amendments and supplements to this Declaration, the Map, and any separate certificate of completion without specific reference thereto. Section 2.18 "Deed" means each initial deed recorded after the date hereof by which Declarant conveys a Lot and, after the initial sale by Declarant, any deed or other instrument by which an Owner transfers title to a Lot (expressly excluding an instrument creating a Security Interest). Section 2.19 "Default Assessment" means an Assessment levied pursuant to this Declaration in connection with an unpaid amount for which an Owner is responsible including, without limitation, for Costs of Enforcement, overdue amounts charged by the Association to an Owner, liability for negligence and indemnification obligations. Section 2.20 "Development Agreement" means that document entitled "________________" which is recorded with the Clerk and Recorder for Garfield County, Colorado, on ___________ at Reception No. _________, as amended or supplemented from time to time. Section 2.21 "Eligible First Mortgagee" means a First Mortgagee that has notified the Association in writing of its name and address and status as a First Mortgagee and has requested that it receive the notices provided for in ARTICLE XV entitled "Mortgagee Protections." Section 2.22 "Fine" means a monetary penalty imposed by the Association against an Owner for violating terms, conditions, or provisions of the Project Documents. Interest on overdue amounts, late charges, other Costs of Enforcement and Default Assessments (other than any portion thereof which is designated as a Fine) are expressly excluded from the definition of, and shall not be deemed to be, Fines. Section 2.23 "First Mortgagee" means a holder of a Security Interest in a Lot which has priority over all other Security Interests in the Lot. Section 2.24 "General Common Elements" means those portions of the Project depicted on the Plat as General Common Elements. The General Common Elements shall be owned by the Owners, each Lot being allocated an undivided interest in the General Common Elements as allocated pursuant to ARTICLE IV. Section 2.25 "General Common Expenses" means expenditures made or liabilities incurred by or on behalf of the Association pertaining to the General Common Elements, together with any allocations to reserves for the General Common Elements, including, without limiting the generality of the foregoing, the following items: (a) expenses of administration, insurance, operation, and management, repair or replacement of the General Common Elements except to the extent such repairs and replacements are responsibilities of an Owner as provided in this Declaration; (b) expenses identified as General Common Expenses by the provisions of this Declaration or the Bylaws; (c) expenses agreed upon as General Common Expenses by the members of the Association. Section 2.26 "Improvement(s)" means the building(s) (including all fixtures and improvements contained within it) located on the Property in which Lots or Common Elements are located, together with landscaping and hardscaping located on the Property. Section 2.27 "Limited Common Elements" means those parts of the Common Elements that are limited to and reserved for use in connection with one or more, but fewer than all, of the Lots. Without limiting the foregoing, the Limited Common Elements shall include any item designated as "Limited Common Elements" or "LCE" in this Declaration or on the Plat, if any. All Limited Common Elements shall be used in connection with the appurtenant Lot(s) to the exclusion of the use thereof by the other Owners, except by invitation and except as otherwise set forth in ARTICLE X. No reference to Limited Common Elements need be made in any instrument of conveyance or encumbrance in order to convey or encumber the Limited Common Elements appurtenant to a Lot. Section 2.28 "Lot" means a physical portion of the Project which is designated for separate ownership or occupancy and the boundaries of which are described in or determined by this Declaration and depicted on the Plat. Each Lot shall be designated by a separate number, letter, address or other symbol or combination thereof that identifies only one Lot in the Project as more specifically set forth on Exhibit B. Section 2.29 "Majority of Owners" means a majority of the Total Voting Power (rather than a majority of those present or voting by proxy at a meeting or the majority of a quorum). Votes allocated to any Lots owned by the Association may not be cast and shall not be included in any calculation of voting power. Section 2.30 "Management Agreement" means any contract or arrangement entered into for purposes of discharging the responsibilities of the Board of Directors of the Association, relative to the operation, maintenance, and management of the Project. Section 2.31 "Managing Agent" means a person, firm, corporation or other entity employed or engaged as an independent contractor pursuant to a Management Agreement to perform management services for the Association. Section 2.32 "Nonprofit Act" means the Colorado Revised Nonprofit Corporation Act, Articles 121-137, Title 7, Colorado Revise Statutes, as may be amended and supplemented from time to time. Section 2.33 Occupant" means any member of an Owner's family or an Owner's guests, invitees, servants, tenants, employees, or licensees who occupy a Lot or are on the Common Elements for any period of time. Section 2.34 "Owner" means Declarant or any other Person who owns record title to a Lot (including a contract seller but excluding a contract purchaser) but excluding any Person having a Security Interest in a Lot unless such Person has acquired record title to the Lot pursuant to foreclosure or other proceedings or by conveyance in lieu of foreclosure. Section 2.35 "Period of Declarant Control" means the maximum period of time defined and limited by Section 6.05 of this Declaration during which Declarant may, at its option, control the Association. Section 2.36 "Person" means an individual, association, partnership, limited liability company, corporation, trust, governmental agency, political subdivision or other legal entity or any combination thereof Section 2.37 “Plat” means the Final Plat of the Flying M Ranch PUD, recorded in the records of Garfield County, Colorado as Reception No. ______________. Section 2.38 "Project" has the meaning set forth in Section 1.01 hereof. Section 2.39 "Property" means the real property described in the attached Exhibit A. Section 2.40 “PUD Guide” means that certain Flying M Ranch PUD Guide approved by the Garfield County Board of County Commissioners recorded in the Records on ________________ as Reception No. ____________. Section 2.41 "Real Estate" means any leasehold or other estate or interest in, over, or under land, including structures, fixtures, and other improvements and interests that, by custom, usage or law, pass with the conveyance of land though not described in the contract of sale or instrument of conveyance. Section 2.42 "Records" means the Office of the Clerk and Recorder of Garfield County. Section 2.43 "Rules and Regulations" means the rules and regulations promulgated by the Association for the management, preservation, safety, control, and orderly operation of the Project in order to effectuate the intent and to enforce the obligations set forth in the Project Documents, as amended and supplemented from time to time. Without limiting the generality of the foregoing, the phrase Rules and Regulations as used in the Project Documents shall not be limited to the provisions of the document(s) entitled Rules and Regulations but instead shall include all policies, procedures, rules, regulations, and/or guidelines as the same may be adopted or amended from time to time by the Board of Directors and shall expressly include, without limitation, any corporate governance policies, and/or any architectural control guidelines. Separate Rules and Regulations may be promulgated to apply to respective Subassociations. Section 2.44 "Security Interest" means an interest in Real Estate or personal property created by contract or conveyance which secures payment or performance of an obligation. The term includes a lien created by a mortgage, deed of trust, trust deed, security deed, contract for deed, land sales contract, lease intended as security, assignment of lease or rents intended as security, pledge of an ownership interest in an Association, and any other consensual lien or title retention contract intended as security for an obligation. The holder of a Security Interest includes any insurer or guarantor of the obligation secured by a Security Interest. Section 2.45 "Special Declarant Rights" has the meaning set forth in Section 14.1 hereof. Section 2.46 "Subassociation(s)" means any other Colorado nonprofit corporation, and its successors and assigns, organized and established pursuant to or in connection with any Supplemental Declaration. Section 2.47 "Subassociation Common Elements" means any interest in real property depicted on a Supplemental Declaration as a Subassociation Common Element. The Subassociation Common Elements shall be owned by the Owners within the respective Subassociation, each Lot being allocated an undivided interest in the Subassociation Common Elements as allocated pursuant to ARTICLE IV. Section 2.48 "Total Voting Power" means the aggregate number of votes of the members of the Association or a Subassociation, as applicable, that are eligible and entitled to vote on or consent to or reject the decision or action in question. ARTICLE III GENERAL RESTRICTIONS APPLICABLE TO THE COMMON INTEREST COMMUNITY Section 3.01 Use and Occupancy of Lots. All Lots shall be used in accordance with the Development Agreement, Project Documents, PUD Guide, and any other applicable laws. Each Owner shall be entitled to the exclusive ownership and possession of his or her Lot, subject to the rights of the Declarant and the Association provided in this Declaration. Section 3.02 Compliance with Laws, Ordinances, Development Agreement and Association Documents. No Lot shall be used for any purpose not permitted by the PUD Guide for the Project, the Development Agreement, or this Declaration. Section 3.03 Use of Common Elements. Except as may be permitted in the Limited Common Elements pursuant to the Project Documents, there shall be no obstruction of the Common Elements, nor shall anything be kept or stored on any part of the Common Elements by any Owner without the prior written approval of the Board of Directors. Nothing shall be altered on, constructed in, or removed from the Common Elements by any Owner without the prior written approval of the Board of Directors. Section 3.04 Prohibition of Increases in Insurable Risks and Certain Activities. Nothing shall be done or kept in any Lot or in or on the Common Elements, or any part thereof, which would result in the cancellation of the insurance on all or any part of the Project or in an increase in the rate of the insurance on all or any part of the Project over what the Association, but for such activity, would pay, without the prior written approval of the Board of Directors. Nothing shall be done or kept in any Lot or in or on the Common Elements which would be in violation of any Applicable Law. No damage to or waste of the Common Elements shall be committed by any Owner or Occupant, and each Owner shall indemnify and hold the Association and the other Owners harmless against all loss resulting from any such damage or waste caused by such Owner or an Occupant of such Owner's Lot (including all Costs of Enforcement incurred in the defense of claims arising by reason of this Section or incurred in establishing the right to indemnification). Failure to so indemnify shall be a default by such Owner under this Section and shall give rise to a Default Assessment against such Owner's Lot. At its own initiative or upon the written request of any Owner, if the Association determines that further action by the Association is proper, the Association shall enforce the foregoing indemnity as a Default Assessment levied against such Lot. Section 3.05 Improvements to General Common Elements. In the event the Board of Directors makes a decision to make improvements to the General Common Elements that were not in place at the time of expiration of the Period of Declarant Control, if possible and practicable, those improvements shall be made in a consistent manner throughout the General Common Elements and the costs of the installment of those improvements and subsequent maintenance, repair and replacement costs shall be allocated as set forth in Section 4.2 and Exhibit B. Section 3.06 Lighting. No lights shall be emitted which are unreasonably bright or cause unreasonable glare; no sound shall be emitted which is unreasonably loud or annoying; and no odor shall be emitted which is nauseous or unreasonably offensive to others. The Association may adopt additional restrictions regarding these matters in the Rules and Regulations or in a separate policy. Section 3.07 Subdivision of Lots; Relocation of Boundaries Between Adjoining Lots. Except as expressly otherwise set forth in connection with the Reserved Declarant Rights, Owner(s) may only subdivide their Lots, relocate boundaries between their Lot and an adjoining Lot, and/or reallocate Limited Common Elements between or among Lots after obtaining the prior approval of the Garfield County Board of County Commissioners, and only up the prior approval of the Board of Directors pursuant to the Rules and Regulations, as well as the consent of all Owners and Eligible First Mortgagees of the Lots affected by such change (a) Creation of Subassociation for Management of Subassociation Common Elements. In the event of future subdivision of a Lot by an Owner, such Owner shall create a Subassociation to manage such Lot’s common facilities. (b) Creation of Subassociation for Lots A1-A4. Lots A1 through A4 (Business Park), shall create a Subassociation contemporaneously with the creation of the Master Association to manage the Lot A Subassociation Common Elements depicted on the Plat. (c) Undivided Interest in the Subassociation Common Elements. The percentage of the undivided interest in the Subassociation Common Elements shall be allocated based on the number of lots within the Subassociation. For example, Lot A Subassociation will split interests equally among Lot A1, Lot A2, Lot A3, and Lot A4. (d) Subassociation Common Expense Liability. The percentage of Subassociation Common Expense Liability shall be allocated by a Supplemental Declaration governing such Subassociation. ARTICLE IV ALLOCATED INTERESTS Section 4.01 Allocation of interests. The Allocated Interests assigned to each Lot are set forth on Exhibit B. These interests have been allocated in accordance with the formulae set out in Section 4.02 below. These formulae are to be used in reallocating interests if Lots are added to the Project, if Lots are converted to a different type of Lot or if Lots are converted to Subassociation Common Elements, General Common Elements or Limited Common Elements. Section 4.02 Formulae for the Allocation of Interests. The interests allocated to each Lot have been calculated by the following formulae and are shown on Exhibit B. (a) Undivided Interest in the General Common Elements. The percentage of the undivided interest in the General Common Elements shall be allocated among all Lots as set forth in Exhibit B. (b) General Common Expense Liability. The percentage of General Common Expense Liability shall be allocated among all Lots in the same manner as the percentage of the undivided interest in the General Common Elements, as set forth in Exhibit B. Allocations for General Common Expense Liability may be further adjusted as set forth in Section 8.4 of this Declaration. (c) Votes. Each Lot shall be allocated a vote as set forth in Exhibit B in the same matter as allocations of undivided interests in the General Common Elements and undivided interests in the Subassociations, as applicable. Section 4.03 Rounding Convention. The total of all Allocated Interests shall be deemed to equal to one hundred percent (100%) for purposes of this Declaration. ARTICLE V LEGAL DESCRIPTION AND TAXATION OF LOTS Section 5.01 Contracts to Convey and Conveyances Subsequent to Recording of Declaration and Map. Subsequent to the recording of this Declaration and the Map, contracts to convey, instruments of conveyance of Lots, and every other instrument affecting title to a Lot shall be in substantially the following form with such omissions, insertions, recitals of fact, or other provisions as may be required by the circumstances or appropriate to conform to the requirements of any governmental authority, practice or usage or requirement of law with respect thereto: Lot _______, according to the Declaration for Flying M Ranch Planned Unit Development, recorded _____________, 2023, at (Reception No. ____________) and the Map recorded ____________, 2023, (Reception No. ________________) in the office of the Clerk and Recorder of Garfield County, Colorado. Section 5.02 Conveyance Deemed to Include an Undivided Interest in Common Elements. Every instrument of conveyance, Security Interest, or other instrument affecting the title to a Lot which legally describes the Lot substantially in the manner set forth above shall be construed to include the Lot, together with the undivided interest in the Common Elements appurtenant to such Lot, as allocated on Exhibit B, and together with all fixtures and improvements contained in such Lot, and to incorporate all the rights incident to ownership of a Lot and all the limitations of ownership as described in the covenants, conditions, restrictions, easements, reservations, rights-of-way, and other provisions contained in this Declaration and the other Project Documents, including the easement of enjoyment to use the Common Elements. Section 5.03 Separate Tax Assessments. Upon the filing for record of this Declaration and the Map in the Records, Declarant shall deliver a copy of this Declaration to the assessor of each county specified in the Records as provided by law. The lien for taxes assessed shall be confined to the Lot(s). No forfeiture or sale of any Lot for delinquent taxes, assessments, or other governmental charge shall divest or in any way affect the title to any other Lot, including, without limitation, the Common Elements appurtenant to any other Lot. ARTICLE VI MEMBERSHIP AND VOTING RIGHTS IN MASTER ASSOCIATION Section 6.01 Master Association Membership. The Articles of Incorporation shall be filed no later than the date Declarant delivers the first Deed conveying a Lot in the Project. Every Owner shall be a member of the Association and shall remain a member for the period of the Owner's ownership of a Lot. No Owner, whether one or more Persons, shall have more than one membership per Lot owned, but all of the Persons owning a Lot shall be entitled to rights of membership and of use and enjoyment appurtenant to ownership of a Lot. Membership in the Association shall be appurtenant to, and may not be separated from, ownership of a Lot. If title to a Lot is held by more than one Person, such Persons shall appoint and authorize one Person or alternate Persons to represent the Owners of the Lot pursuant to the Bylaws, and there shall be a single registered address for each Lot, as applicable, for notice and delivery purposes as further set forth in the Bylaws. Section 6.02 Voting Rights and Meetings. Each Lot in the Project shall have the votes allocated in accordance with Section 4.02; provided, however, no vote allocated to a Lot owned by the Association may be cast. Cumulative voting shall not be allowed in the election of the Board of Directors or for any other purpose. The voting power required for any action or determination shall be calculated in accordance with the Bylaws. A meeting of the Association shall be held at least once each year, and special meetings of the Association may be called in accordance with the Bylaws. Section 6.03 Meeting to Approve Annual Budget. Prior to the first annual meeting of the Association, and thereafter at the annual meeting of the Association or at a special meeting of the Association called for such purpose, the Owners shall be afforded the opportunity to review the Budget proposed by the Board of Directors, which shall include separate Budgets for Subassociation Common Expenses for the Association's next fiscal year. Only the members of the Board of Directors elected by each Subassociation will be entitled to vote to approve the Budgets applicable to their Subassociation Common Expenses. If for any reason the Owners within a Subassociation are unable to elect the members of the Board of Directors, as the context requires, to represent their interests regarding Subassociation issues, after diligent attempts to do so, then the remaining members of the Board of Directors will be authorized to approve the Budget for Subassociation Common Expenses. A summary of the proposed Budgets approved by the Board of Directors shall be delivered to the Owners within ninety (90) days after approval by the Board of Directors along with a notice of a meeting of the Association to be held not fewer than ten (10) nor more than fifty (50) days after delivery of the summary to the Owners. Unless at the meeting at least sixty-seven percent (67%) of the Total Voting Power reject the proposed Budgets, as applicable, such Budget shall be deemed ratified whether or not a quorum is present at the meeting. In the event a proposed Budget is rejected, the then existing Budget shall continue in effect until such time as a subsequent Budget is proposed by the Board of Directors and is not rejected in accordance with the above procedures. Only the Owners of each separate Subassociation will be entitled to vote to reject the Subassociation Budget in accordance with this Section. Section 6.04 Transfer Information. All Persons who acquire Lot(s) other than from Declarant shall provide written notice of the transfer, together with all information required under the Bylaws and/or the Rules and Regulations, to the Association within ten (10) days after the date of transfer. Such Person shall also provide a true and correct copy of the recorded instrument conveying or transferring the Lot or such other evidence of the conveyance or transfer as is reasonably acceptable to the Association. The Association or Managing Agent shall have the right to charge the Person a reasonable administrative fee for processing the transfer in the records of the Association. Section 6.05 Declarant Control of the Association. There shall be a Period of Declarant Control of the Association, during which Declarant, or Persons designated by Declarant, may appoint and remove the officers of the Association and the members of the Board of Directors. The Period of Declarant Control shall commence upon filing of the Articles of Incorporation and shall terminate no later than the earlier of: (a) sixty (60) days after conveyance of seventy-five percent (75%) of the Lots that may be created to Owners other than a Declarant; (b) two (2) years after Declarant's last conveyance of a Lot in the ordinary course of business; or (c) two (2) years after any right to add new Lots was last exercised. Declarant may voluntarily surrender the right to appoint and remove officers and members of the Board of Directors before the termination of the Period of Declarant Control, but in that event, Declarant may require, for the duration of the Period of Declarant Control, that specified actions of the Association or Board of Directors, as described in a recorded instrument executed by Declarant, be approved by Declarant before they become effective. Section 6.06 Required Election of Owners. Not later than sixty (60) days after conveyance of twenty-five percent (25%) of the Lots that may be created by Declarant to Owners other than Declarant, at least one (1) member and not fewer than twenty-five percent (25%) of the members of the Board of Directors shall be elected by Owners other than Declarant. Not later than sixty (60) days after conveyance of fifty percent (50%) of the Lots that may be created by Declarant to Owners other than Declarant, not fewer than thirty-three and one-third percent (33-1/3%) of the members of the Board of Directors must be elected by Owners other than Declarant. For the avoidance of doubt, the foregoing restrictions on Declarant are not intended to restrict the Declarant, to the extent it then owns one or more Lots, from voting or from running for the Board of Directors as a Lot Owner. Not later than the termination of the Period of Declarant Control, the Owners shall elect all members of the Board of Directors, at least a majority of whom shall be Owners other than Declarant or Designated Representatives of Owners other than Declarant. In order to assure representation of each Subassociation in the affairs of the Association and to protect the valid interests of the Owners within each Subassociation in the operation of the Project following the termination of the Period of Declarant Control, the Owners within each Subassociation, to the extent the same exists, shall be entitled to elect one member of the Board of Directors. The Board of Directors shall elect the officers. The members of the Board of Directors and officers shall take office upon election. Each member of the Board of Directors shall serve for the term specified in the Bylaws and may be removed only in accordance with the Bylaws. Section 6.07 Requirements for Turnover of Declarant Control. Within sixty (60) days after the Owners other than Declarant elect a majority of the members of the Board of Directors, Declarant shall deliver to the Association (a) all property of the Owners and of the Association held by or controlled by Declarant. Section 6.08 Subassociation Voting. All Subassociation issues shall be voted upon or otherwise acted upon by the Owners in the applicable Subassociation at a regular or special meeting of the Association or at such other special meeting of the Subassociation as may be called by the members of the Board of Directors elected by such Subassociation. ARTICLE VII MASTER ASSOCIATION POWERS AND DUTIES Section 7.01 Association Management Duties. Subject to the rights and obligations of Declarant and other Owners as set forth in this Declaration, the Association shall be responsible for the administration and operation of the Project and for the exclusive management, control, maintenance, repair, replacement, and improvement of the Common Elements. The Association shall keep the same in good, clean, attractive, and sanitary condition, order, and repair. The expenses, costs, and fees of such management, operation, maintenance, and repair by the Association shall be part of the Assessments, and prior approval of the Owners shall not be required in order for the Association to pay any such expenses, costs, and fees. The Association shall establish and maintain, out of the installments of the annual Assessments, an adequate reserve account for maintenance, repair, or replacement of those Common Elements that must be maintained, repaired and/or replaced on a periodic basis. The Association shall adopt and amend, annually and in accordance with the provisions hereof, a Budget which will be the basis for collection of Assessments from Owners. The Association shall keep financial records sufficiently detailed to enable the Association to comply with the requirement to provide statements of status of Assessments, as described in Section 8.11. All financial and other records of the Association shall be made reasonably available for examination by any Owner and such Owner's authorized agents and requesting First Mortgagees, all in accordance with the Project Documents. Section 7.02 Association Powers. The Association shall have, subject to the limitations contained in this Declaration, the Bylaws, and the Act, all powers necessary or appropriate for the administration of the affairs of the Association and the upkeep of the Project, which shall include, but not be limited to, the following: (a) Adopt and amend the Bylaws and the Rules and Regulations; (b) Adopt and amend the Budgets; (c) Collect Assessments from Owners; (d) Suspend the voting interests allocated to a Lot, and the right of an Owner to cast such votes, or by proxy the votes of another, during any period in which such Owner is in default in the payment of any Assessment, or during any time in which an Owner is in violation of any other provision of the Project Documents; (e) Subject to Section 7.03, hire and discharge Managing Agents pertaining to a Subassociation and delegate to such Managing Agents the power and duty to enforce the Rules and Regulations and other powers and duties of the Association, subject to the requirements of the Act; (f) Subject to Section 7.03, hire and discharge employees, independent contractors and agents pertaining to a Subassociation other than Managing Agents; (g) Institute, defend or intervene in litigation or administrative proceedings or seek injunctive relief for violations of the Project Documents in the Association's name, on behalf of the Association or on behalf of two or more Owners in matters affecting the Project; (h) Adjust and settle insurance claims; (i) Receive notices, join in any litigation or administrative proceeding, and execute any and all documents in the Association's name, on behalf of the Association, or on behalf of the two or more Owners, in connection with any change in zoning, annexation, subdivision approval, building permit, or other type of govemmental approval required to accomplish or maintain the purposes of the Association; (j) Make contracts and incur liabilities; (k) Regulate the use, maintenance, repair, replacement, and modification of all Common Elements (expressly including the Limited Common Elements), all Association property within the Project or any property which serves the Project but which is outside its boundaries; (l) Establish policies and procedures for entry into Lots under authority granted to the Association in the Project Documents for the purpose of cleaning, maintenance and repair (including emergency repair) and for the purpose of abating a nuisance, or a known or suspected dangerous or unlawful activity; (m) Cause additional improvements to be made as a part of the Common Elements; (n) Acquire, hold, encumber and convey, in the Association's name, any right, title or interest to real estate or personal property (provided that Common Elements may be conveyed or subjected to a Security Interest only pursuant to Section 38-33.3-312 of the Act); (o) Grant easements, including permanent easements, and grant leases, licenses and concessions, through or over the Common Elements; (p) Impose and receive a payment, fee, or charge for (i) services provided to Owners, and (ii) for the use, rental or operation of the Common Elements (other than for the use or rental of the Limited Common Elements); (q) Establish, from time to time, and thereafter impose, charges for late payment of Assessments or any other sums due and, after notice and hearing, levy a Fine for a violation of the Project Documents; (r) Impose a reasonable charge for the preparation and recording of amendments to the Declaration or statements of unpaid Assessments and for services provided to Owners; (s) Recover Costs of Enforcement for collection of Assessments and other actions to enforce the powers of the Association, regardless of whether or not suit was initiated; (t) Provide for the indemnification of the Association's officers and the Board of Directors to the extent permitted by law and maintain directors' and officers' liability insurance; (u) Assign the Association's right to future income, including the right to receive Assessments; (v) Except with respect to members of the Board of Directors appointed by Declarant during the Period of Declarant Control (who may be removed only by Declarant), declare the office of a member of the Board of Directors to be vacant in the event such member is absent from three (3) regular meetings of the Board of Directors during any one-year period; (w) Appoint any committee as required or permitted by the Project Documents, and by resolution, establish committees, permanent and standing, to perform any of the above functions under specifically delegated administrative standards as designated in the resolution establishing the committee; (x) By resolution, set forth policies and procedures which provide for corporate actions and powers which are different than those set forth in the Nonprofit Act, which are permitted to be "otherwise set forth in the Bylaws." Such resolutions shall be given the same force and effect as if specifically enumerated in the Declaration or the Bylaws; (y) Exercise any other powers conferred by the Project Documents, the Act, or the Nonprofit Act or that may otherwise be exercised by entities of the same type as the Association under Colorado law; and (z) Exercise any other power necessary or proper for the governance and operation of the Association. Section 7.03 Actions by Board of Directors. Except as specifically otherwise provided in this Declaration, the Bylaws or the Act, the Board of Directors may act in all instances on behalf of the Association. In the avoidance of doubt, all Subassociation issues shall be voted on and acted upon by the Owners in the applicable Subassociation, or by the member(s) on the Board of Directors elected by the Owners within such Subassociation, in accordance with the Declaration, the Bylaws and the Act. Section 7.04 Board of Directors Meetings. All meetings of the Board of Directors, at which action is to be taken by vote, will be open to the Owners and Eligible First Mortgagees, and agendas for meetings of the Board of Directors shall be made reasonably available for examination by all members of the Association or their representatives and Eligible First Mortgagees, except as set forth in the Bylaws. Section 7.05 Right to Notice and Hearing. Whenever the Project Documents require that an action be taken after "notice and hearing," the following procedure shall be observed: The party proposing to take the action (e.g., the Board of Directors, a committee, an officer, a Managing Agent, etc.) shall give notice of the proposed action to all Owners and Eligible First Mortgagees whose interests the proposing party reasonably determines would be significantly affected by the proposed action. The notice shall be given not less than three (3) days before the proposed action is to be taken. The notice shall include a general statement of the proposed action and the date, time and place of the hearing. At the hearing, the affected Person shall have the right, personally or by a representative, to give testimony orally and/or in writing, subject to reasonable rules of procedure established by the party conducting the hearing to assure a prompt and orderly resolution of the issues. Such evidence shall be considered in making the decision but shall not bind the decision makers. The affected Person shall be notified of the decision in the same manner in which notice of the hearing was given. Any Owner or Eligible First Mortgagee having a right to notice and hearing shall have the right to appeal to the Board of Directors from a decision of a proposing party other than the Board of Directors by filing a written notice of appeal with the Board of Directors within ten (10) days after being notified of the decision. The Board of Directors shall conduct a hearing within forty-five (45) days, giving the same notice and observing the same procedures as were required for the original hearing. Section 7.06 Payments to Working Capital Account. In order to provide the Association with adequate working capital funds, the Association may collect from purchasers, at the time of the initial sale by Declarant of each Lot, an amount not to exceed three (3) months' worth of annual Assessments based on the Association's Budget in effect at the time of the conveyance. Such payments to this fund shall not be considered advance payments of annual Assessments. ARTICLE VIII ASSESSMENTS Section 8.01 Covenant of Personal Obligation for Assessments. Declarant, by creating the Lots pursuant to this Declaration, and all other Owners, by acceptance of the Deed or other instrument of transfer of such Owner's Lot (whether or not it shall be so expressed in such Deed or other instrument of transfer), are deemed to personally covenant and agree with all other Owners and with the Association, and hereby do so covenant and agree to pay to the Association the (a) annual Assessments, (b) special Assessments, and (c) Default Assessments applicable to the Owner's Lot. No Owner may waive or otherwise escape personal liability for the payment of the Assessments provided for in this Declaration by not using the Common Elements or the facilities located on or in the Common Elements or by abandoning or leasi.ng such Owner's Lot. Section 8.02 Lien for Assessments; Assignment of Rents. All Assessments (including installments of the Assessments) arising under the provisions of the Project Documents shall be burdens running with, and a perpetual lien in favor of the Association upon, the specific Lot to which such Assessments apply. To further evidence such lien upon a specific Lot, the Association may prepare a written lien notice setting forth the description of the Lot, the amount of Assessments on the Lot unpaid as of the date of such lien notice, the rate of default interest as set by the Rules and Regulations, the name of the Owner or Owners, and any and all other information that the Association may deem proper. The lien notice shall be signed by a member of the Board of Directors, an officer of the Association, or the Managing Agent and shall be recorded in the Records. Any such lien notice shall not constitute a condition precedent or delay the attachment of the lien, but such lien is a perpetual lien upon the Lot and attaches without notice at the beginning of the first day of any period for which any Assessment is levied. Upon any default in the payment of any Assessments, the Association shall also have the right to appoint a receiver to collect all rents, profits, or other income from the Lot payable to the Owner and to apply all such rents, profits, and income to the payment of delinquent Assessments. Each Owner, by ownership of a Lot, agrees to the assignment of such rents, profits and income to the Association effective immediately upon any default in the payment of annual, special, or Default Assessments. Section 8.03 Annual Assessments. The Association shall levy annual Assessments to pay for the Common Expense Liability allocated to each Lot pursuant to this Declaration. The total annual Assessments shall be based upon the Budget. Any surplus funds of the Association remaining after payment of or provision for Common Expenses and after any prepayment of or provision for reserves, as determined by the Board of Directors, shall be refunded to the Owners in proportion to their Common Expense Liability or credited to them to reduce their future Assessments for Common Expenses, as determined by the Board of Directors in its discretion. Section 8.04 Apportionment of Annual Assessments. The total annual Assessments for any fiscal year of the Association shall be assessed to the Lots in proportion to their percentage of Common Expense Liability as allocated pursuant to Section 4.02, subject to: (a) Common Expenses which are separately metered or assessed to the Lots by third parties or pursuant to service agreements with third parties; (b) General Common Expenses shall be assessed against each Lot as set forth on Exhibit B; (c) Subassociation Common Expenses shall be assessed against each Lot within the relevant Subassociation as set forth on Exhibit B; (d) Common Expenses associated with the operation, maintenance, repair or replacement of Limited Common Elements, which shall be assessed equally or on such other equitable basis as the Board of Directors shall determine to the Lots to which the specific Limited Common Elements are appurtenant; (e) Common Expenses or portions thereof (including Subassociation Common Expenses) benefiting fewer than all of the Lots which shall be assessed exclusively against the Lots benefited, and Common Expenses or portions thereof which benefit certain Lots more than others which shall be allocated in proportion to such benefit; (f) any increased cost of insurance based upon risk which shall be assessed to Lots in proportion to the risk; (g) any Common Expense caused by the misconduct of any Owner(s) or their Occupants, which may be assessed exclusively or on such other equitable basis as the Board of Directors shall determine against such Owner(s); and (h) any expenses which are otherwise charged equally to the Lots. All such allocations of Common Expense Liability to the Lots on a basis other than the Lots' percentage of Common Expense Liability shall be determined by the Board of Directors, by the members of the Board of Directors elected by the Owners of a Subassociation, as applicable. Section 8.05 Special Assessments. In addition to the annual Assessments authorized above, the Board of Directors may at any time and from time to time determine, levy, and assess in any fiscal year a special Assessment applicable to that particular fiscal year (and for any such longer period as the Board of Directors may determine) for the purpose of defraying, in whole or in part, the unbudgeted costs, fees, and expenses of any construction, reconstruction, repair, demolishing, replacement, renovation or maintenance of the Project, specifically including any fixtures and personal property related to it and any other unbudgeted or unanticipated costs of the Association. Any amounts determined, levied, and assessed pursuant to this Declaration shall be assessed to the Lots pursuant to the provisions in Section 6.03, Section 8.02 and Section 8.03 above. In the avoidance of doubt, costs, fees and expenses for work on only Lots within a Subassociation shall be borne only by such Owners. Costs, fees and expenses for work on only Subassociation Common Elements shall be borne by the Owners within the Subassociation only in accordance with their Allocated Interests for Subassociation Common Expenses. Section 8.06 Due Dates for Assessment Payments. Unless otherwise determined by the Board of Directors, the Assessments which are to be paid in installments shall be paid quarterly in advance and shall be due and payable to the Association at its office or as the Board of Directors may otherwise direct in any Management Agreement, without notice (except for the initial notice of any special Assessment), on the date and in the installments determined by the Board of Directors, as set forth in the Rules and Regulations. The Board of Directors may establish different installments for different types of Lots or for Owners of multiple Lots of any type. If any such installment shall not be paid when due and payable, then the Board of Directors may assess a late charge, default interest charges (not to exceed the rate from time to time allowed by Section 38-33.3-315 of the Act or other Applicable Law), fee, or such other charge as the Board of Directors may fix by rule from time to time to cover the extra expenses involved in handling such delinquent Assessment installment. An Owner's Assessment shall be prorated if the ownership of a Lot commences or terminates on a day other than the first day or last day, respectively, of the applicable payment period. However, if the Common Expense Liability is re-allocated in accordance with this Declaration, any installment(s) of an Assessment not yet due shall be recalculated to reflect the re-allocated Common Expense Liability. Section 8.07 Default Assessments. All Costs of Enforcement assessed against an Owner pursuant to the Project Documents, any Fines, and any expense of the Association which is the obligation of an Owner pursuant to the Project Documents and is not paid when due shall become a Default Assessment assessed against the Owner's Lot. Section 8.08 Remedies for Nonpayment of Assessments. If any Assessment (or any installment of the Assessment) is not fully paid when due, then as often as the same may happen, default interest, late charges, and Costs of Enforcement will accrue as set forth in the Rules and Regulations. In addition, if any Assessment (or any installment of the Assessment) is not fully paid within thirty (30) days after the same becomes due and payable, then as often as the same may happen, (a) the Association may declare due and payable all unpaid installments of the annual Assessment or any special Assessment otherwise due during the fiscal year during which such default occurred, (b) the Association may thereafter bring an action at law or in equity, or both, against any Owner personally obligated to pay the same, (c) the Association may proceed to foreclose its lien pursuant to the power of sale granted to the Association by this Declaration or in the manner and form provided by Colorado law for foreclosure of real estate mortgages, (d) the Association may suspend the Owner's right to vote in Association matters until the Assessment is paid, and (e) the Association may pursue any other remedies available pursuant to the Project Documents or Applicable Law. An action at law or in equity by the Association (or counterclaims or cross- claims for such relief in any action) against an Owner to recover a money judgment for unpaid Assessments (or any installment thereof) may be commenced and pursued by the Association without foreclosing or in any way waiving the Association's lien for the Assessments. Foreclosure or attempted foreclosure by the Association of its lien shall not be deemed to estop or otherwise preclude the Association from again foreclosing or attempting to foreclose its lien for any subsequent Assessments (or installments thereof) which are not fully paid when due or for any subsequent Default Assessments. The Association shall have the power and right to bid in or purchase any Lot at foreclosure or other legal sale and to acquire and hold, lease, mortgage, and to convey, or otherwise deal with the Lot acquired in such proceedings. Section 8.09 Purchaser's Liability for Assessments. Notwithstanding the personal obligation of each Owner to pay all Assessments on the Lot, and notwithstanding the Association's perpetual lien upon a Lot for such Assessments, all purchasers of a Lot shall be liable with the prior Owner(s) of such Lot for any and all unpaid Assessments against such Lot, without prejudice to any such purchaser's right to recover from any prior Owner any amounts paid thereon by such purchaser. A purchaser's obligation to pay Assessments shall commence upon the date the purchaser becomes the Owner. For Assessment purposes, the date a purchaser becomes the Owner shall be determined as follows: (a) in the event of a conveyance or transfer by foreclosure, the date a purchaser becomes the Owner shall be deemed to be upon the expiration of all applicable redemption periods; (b) in the event of a conveyance or transfer by deed in lieu of foreclosure a purchaser shall be deemed to become the Owner of the Lot upon the execution and delivery of the deed or other instruments conveying or transferring title to the Lot, irrespective of the date the deed is recorded; and (c) in the event of conveyance or transfer by Deed, a purchaser shall be deemed to become the Owner upon the execution and delivery of the Deed or other instruments conveying or transferring title of the Lot, irrespective of the date the Deed is recorded. However, such purchaser shall be entitled to rely upon the existence and status of unpaid Assessments as shown upon any certificate issued by or on behalf of the Association to such named purchaser pursuant to the provisions of this Declaration. Section 8.10 Waiver of Homestead Exemption; Subordination of Association's Lien for Assessments. By acceptance of the Deed or other instrument of transfer of a Lot, each Owner irrevocably waives the homestead exemption provided by Part 2, Article 41, Title 38, Colorado Revised Statutes, as amended. The Association's perpetual lien on a Lot for Assessments shall be superior to all other liens and encumbrances except the following: (a) real property ad valorem taxes and special assessment liens duly imposed by a Colorado governmental or political subdivision or special taxing Subassociation, or any other liens made superior by statute; (b) liens recorded prior to this Declaration unless otherwise agreed by the parties thereto; (c) the lien of any First Mortgagee except to the extent the Act grants priority for Assessments to the Association. Any First Mortgagee who acquires title to a Lot by virtue of foreclosing a First Mortgage or by virtue of a Deed or assignment in lieu of such a foreclosure, or any purchaser at a foreclosure sale of the First Mortgage, will take the Lot free of any claims for unpaid Assessments and Costs of Enforcement against the Lot which accrue prior to the time such First Mortgagee acquires title to the Lot except to the extent the amount of the extinguished lien may be reallocated and assessed to all Lots as a Common Expense and except to the extent the Act grants lien priority for Assessments to the Association. All other Persons not holding liens described in this Section and obtaining a lien or encumbrance on any Lot after the recording of this Declaration shall be deemed to consent that any such lien or encumbrance shall be subordinate and inferior to the Association's lien for Assessments and Costs of Enforcement as provided in this Article, whether or not such consent is specifically set forth in the instrument creating any such lien or encumbrance. The sale or other transfer of any Lot shall not affect the Association's lien on such Lot for Assessments due and owing prior to the time such purchaser acquired title and shall not affect the personal liability of each Owner who shall have been responsible for the payment thereof except (a) as provided above with respect to First Mortgagees, (b) in the case of foreclosure of any lien enumerated in this Section, and (c) as provided in the next Section. Further, no such sale or transfer shall relieve the purchaser of a Lot from liability for, or the Lot from the lien of, any Assessments made after the sale or transfer. Section 8.11 Statement of Status of Assessments. Within fourteen (14) calendar days after receipt of written notice to the Managing Agent or, in the absence of a Managing Agent, to the Board of Directors and payment of a reasonable fee set from time to time by the Board of Directors as set forth in the Rules and Regulations, any Owner, holder of a Security Interest, prospective purchaser of a Lot or their designees shall be furnished a statement of the Owner's account setting forth: (a) the amount of any unpaid Assessments then existing against a particular Lot; (b) the amount of the current installments of the annual Assessment and the date that the next installment is due and payable; (c) the date(s) for payment of any installments of any special Assessments outstanding against the Lot; and (d) any other information, deemed proper by the Association, including the amount of any delinquent Assessments created or imposed under the terms of this Declaration. Upon the issuance of such a certificate signed by a member of the Board of Directors, by an officer of the Association, or by a Managing Agent, the information contained therein shall be conclusive upon the Association as to the Person or Persons to whom such certificate is addressed and who rely on the certificate in good faith. Section 8.12 Liens. Except for Assessment liens as provided in this Declaration, mechanics' liens (except as prohibited by this Declaration), tax liens, judgment liens and other liens validly arising by operation of law, and liens arising under Security Interests, there shall be no other liens obtainable against the Common Elements or against the interest of any Owner in the Common Elements (except a Security Interest in the Common Elements that may be granted by the Association pursuant to the requirements of the Act). ARTICLE IX MECHANICS' LIENS Section 9.01 Mechanics' Liens. Subsequent to recording of this Declaration and the filing of the Map in the Records, no labor performed or materials furnished for use and incorporated in any Lot with the consent of or at the request of the Owner or the Owner's agent, contractor or subcontractor, shall be the basis for the filing of a lien against a Lot of any other Owner not expressly consenting to or requesting the same, or against any interest in the Common Elements except as to the undivided interest therein appurtenant to the Lot of the Owner for whom such labor shall have been performed or such materials shall have been furnished. Each Owner shall indemnify and hold harmless each of the other Owners and the Association from and against any liability or loss arising from the claim of any mechanics' lien or for labor performed or for materials furnished in work on such Owner's Lot, against the Lot of another Owner or against the Common Elements, or any part thereof. Section 9.02 Enforcement by the Association. At its own initiative or upon the written request of any Owner, if the Association determines that further action by the Association is proper, the Association shall enforce the indemnity provided by the provisions of this ARTICLE XI by collecting from the Owner of the Lot on which the labor was performed or materials furnished the amount necessary to discharge by bond or othe1wise any such mechanics' lien, to pay all costs and reasonable attorneys' fees incidental to the lien, and to obtain a release of such lien. If the Owner of the Lot on which the labor was performed or materials furnished refuses or fails to indemnify within five (5) days after the Association shall have given notice to such Owner of the total amount of the claim, then the failure to so indemnify shall be a default by such Owner under the provisions of this ARTICLE XI, and such amount to be indemnified shall automatically become a Default Assessment determined and levied against such Lot, and enforceable by the Association pursuant to this Declaration. ARTICLE X EASEMENTS Section 10.01 Easement of Enjoyment; Common Elements. Every Owner shall have a perpetual non-exclusive right and easement for the use and enjoyment of, and for access over, across, and upon, any portion of the Common Elements designated for common use, which includes the benefit of a non-exclusive easement of access over, across and upon the Common Elements for the purpose of access to and from the Lot from public ways for both pedestrian and, where appropriate, vehicular travel, which right and easement shall be appurtenant to and pass with the transfer of title to such Lot; provided, however, that such right and easement shall be subject to the following: (a) the covenants, conditions, restrictions, easements, reservations, rights-of-way, and other provisions contained in this Declaration, and the Map; (b) the right of the Association from time to time to assign on an equitable basis portions of the Common Elements such as parking spaces or storage for the exclusive use of the Owner of a particular Lot by a resolution of the Board or other appropriate written instrument; (c) the right of the Association to adopt, from time to time, Rules and Regulations concerning vehicular traffic and travel upon, in, under, and across the Project; (d) the right of the Association to adopt, from time to time, such Rules and Regulations concerning the Project as the Association may determine are necessary or prudent for the management, preservation, safety, control, orderly operation, or use of the Project for the benefit of all Owners; and (e) the agreement of all Owners, pursuant to this Declaration, to use reasonable and good faith efforts not to interfere with the use and enjoyment of other Owners of the Common Elements and such other Owners' respective Lots. Section 10.02 Easement of Enjoyment; Limited Common Elements. Subject to the provisions of this Declaration and the Rules and Regulations, every Owner shall have the right to use and enjoy the Limited Common Elements appurtenant to such Owner's Lot. Section 10.03 Easement of Enjoyment; Subassociation Common Elements. Subject to the provisions of this Declaration and the Rules and Regulations, every Owner within the relevant Subassociation shall have the right to use and enjoy the Subassociation Common Elements appurtenant to such Subassociation. Section 10.04 Delegation of Use. Any Owner may delegate, in accordance with the Project Documents, the Owner's right of enjoyment in the Common Elements to an Occupant of the Owner's Lot. Section 10.05 Recorded Easements. The Property shall be subject to any easements as shown on any recorded plat affecting the Property, as shown on the recorded Map, or as reserved or granted under this Declaration. The recording data for recorded easements and licenses appurtenant to or included in the Property as of the date of this Declaration is set forth on Exhibit C attached hereto and incorporated herein by this reference. Section 10.06 Easements for Encroachments. The Project, and all portions of it, is subject to easements hereby created for encroachments between Lots and the Common Elements as follows: (a) in favor of all Owners, so that they shall have no legal liability when any part of the Common Elements encroaches upon a Lot; (b) in favor of each Owner, so that the Owner shall have no legal liability when any part of such Owner's Lot encroaches upon the Common Elements or upon another Lot; and (c) in favor of all Owners, the Association, and the Owner of any encroaching Lot for the maintenance and repair of such encroachments. Encroachments referred to in this Section 10.06 include, but are not limited to, encroachments caused by error or variance from the original plans in the construction of the Improvements or any Lot constructed on the Property, by error in the Map, by settling, rising, or shifting of the earth, or by changes in position caused by repair or reconstruction of any part of the Project. Such encroachments shall not be considered to be encumbrances upon any part of the Project; provided, however, that encroachments created by the intentional act of an Owner shall not be deemed to create an easement on the Property and shall be considered an encroachment upon the Project. Such encroachment shall be removed at Owner's expense immediately upon notice from the Association. In the event such encroachment is not timely removed, the Association may effect removal of the encroachment and the expense thereof shall be a Default Assessment to the Owner. Section 10.07 Utility Easements. There is hereby created a general non-exclusive easement upon, across, over, in, and under all of the Lots and Common Elements for the purpose of installation, replacement, repair, and maintenance of all utilities and services for the Owners, including but not limited to water, sewer, gas, telephone, electricity, security systems, cable television, cable, and other communication systems, and for ingress and egress in connection therewith. By virtue of this easement, it shall be expressly permissible and proper for the companies providing such utilities to erect and maintain the necessary equipment on the Common Elements and to affix and maintain electrical, communications, and telephone wires, circuits, and conduits under the Property. Any utility or service company using this general easement shall (i) use its best efforts to install and maintain the utilities provided without disturbing the uses of other utilities, the Owners, the Association, or Declarant; (ii) complete its installation and maintenance activities as promptly as reasonably possible; and (iii) restore the surface to its original condition as soon as possible after completion of its work. Should any utility or service company furnishing a service covered by this general easement request a specific easement by separate recordable document, Declarant and the Association (subject to Declarant's approval during the Period of Declarant Control), shall each have the right and authority, but not the obligation, to grant such easement upon, across, over, or under any part or all of the Property without conflicting with the terms hereof. The easements provided for in this Section shall in no way void, extinguish, or modify any other recorded easement on the Property. Section 10.08 Emergency Access Easement. A general easement is hereby granted to all police, sheriff, fire protection, ambulance, and all other similar emergency agencies or Persons to enter upon the Property in the proper performance of their duties. Section 10.09 Maintenance Easement. An easement is hereby granted to the Association and any Managing Agent and their respective officers, agents, employees and assigns upon, across, over, in, and under the Common Elements and a right to make such use of the Common Elements as may be necessary or appropriate to perform the duties and functions which they are obligated or permitted to perform pursuant to this Declaration. Section 10.10 Easements of Access for Repair, Maintenance, and Emergencies. Some of the Common Elements are or may be located within the Lots or may be conveniently accessible only through the Lots. The Owners and the Association shall have the irrevocable right, to be exercised by the Association as the Owners' agent, to have access to each Lot and to all Common Elements from time to time during such reasonable hours as may be necessary for the maintenance, repair, removal, or replacement of any of the Common Elements therein or accessible therefrom or for making emergency repairs therein necessary to prevent damage to the Common Elements or to any Lot. Unless caused by the negligent or willful act or omission of an Owner or Occupant, damage to the interior of any part of a Lot resulting from the maintenance, repair, emergency repair, removal, or replacement of any of the Common Elements or as a result of emergency repair within another Lot at the instance of the Association or of the Owners shall be a Common Expense. In order to effectuate this right, the Association shall retain a pass key or other access device to each Lot and an Owner shall not change the exterior lock or other access system on its Lot without the Board's prior written consent and providing the Association with a replacement key or access device to accommodate the new lock or other access system. Section 10.11 Easements Deemed Created. All conveyances of Lots hereafter made, whether by Declarant or otherwise, shall be construed to grant and reserve the easements contained in this ARTICLE X, even though no specific reference to such easements or to this ARTICLE X appears in the instrument for such conveyance. Section 10.12 Open Space. With respect to the areas designated as “Open Space” on Map or any supplement thereto, title shall be conveyed to the Association upon recording of the Map or any supplement thereto. Open Spaces shall thereafter be considered a General Common Element, and there is hereby created, granted and reserved for the use and benefit of the Association, Owners, and the Occupants of Lots, a perpetual, non-exclusive easement over, upon and across Open Spaces. Open Spaces may be used and enjoyed for passive recreational purposes, and shall be improved and sustained by the Association. Section 10.13 Additional Easements. In the event an additional easement is reasonably requested by an Owner or the Association for purposes consistent with the intent of this Declaration, each Owner and the Association, as applicable, will act reasonably and in good faith in evaluating the request and will not unreasonably withhold its consent to the granting of any such easement. ARTICLE XI SPECIAL DECLARANT RIGHTS AND ADDITIONAL RESERVED RIGHTS Section 11.01 Special Declarant Rights. Declarant hereby reserves the right, from time to time, to perform the acts and exercise the rights hereinafter specified (the "Special Declarant Rights"). Declarant's Special Declarant Rights include the following: (a) Completion of Improvements. The right to complete Improvements indicated on the Plat. (b) Easements. The right to create and grant easements through the Common Elements to any party for any purpose including, without limitation, for purposes of (i) making Improvements within the Project, and/or (ii) the construction and development of Real Estate which may be added to the Project. (f) Subassociation(s). The right to create one or more subassociations to govern particular types of Lots, including the right to record additional declarations applicable thereto. (g) Control of Association and Board of Directors. During the Period of Declarant Control, the right to appoint or remove any officer of the Association or any member of the Board of Directors appointed by Declarant. (h) Amendment of Declaration. The right to amend this Declaration in connection with the exercise of any Development Rights. (i) Amendment of Plat. The right to amend the Plat in connection with the exercise of any Development Rights. Section 11.02 Additional Reserved Rights. In addition to the Special Declarant Rights set forth in Section 11.01 above, Declarant also reserves the following additional rights (the "Additional Reserved Rights"): (a) Dedications. The right to establish, from time to time, by grant, dedication or otherwise, utility and other easements for purposes including but not limited to streets, paths, walkways, tramways, drainage, recreation areas, parking areas, driveways, ducts, shafts, flues, conduit installation areas, and to create other reservations, exceptions and exclusions for the benefit of and to serve the Owners within the Project. (b) Use Agreements. The right to enter into, establish, execute, amend, and otherwise deal with contracts and agreements for the use, lease, repair, maintenance or regulation of parking and/or recreational facilities, which may or may not be a part of the Project, for the benefit of the Owners and/or the Association. (c) Easement Rights. The right to grant easements in, on, over or through the Common Elements to any third party for the development or improvement of the Property or other Real Estate, as determined by Declarant. Section 11.03 Limitations on Special Declarant Rights and Additional Reserved Rights. Special Declarant Rights and Additional Reserved Rights may be exercised at any time during the period described below in this Section unless sooner terminated (i) by an amendment to this Declaration executed by Declarant; (ii) pursuant to a specific provision for earlier termination set forth above; or (iii) if and to the extent otherwise required under the Act. Any Special Declarant Right or Additional Reserved Rights may be exercised by Declarant so long as Declarant (a) is obligated under any warranty or obligation; (b) holds a Development Right; (c) owns any Lot or any interest therein; or (d) holds a Security Interest in any Lot(s); provided, however, all Special Declarant Rights and Additional Reserved Rights shall terminate thirty (30) years after the date of recording this Declaration Section 11.04 Interference with Special Declarant Rights or Additional Reserved Rights. Neither the Association nor any Owner nor any Subassociation may take any action or adopt any rule and/or regulation that will interfere with or diminish any Special Declarant Rights or Additional Reserved Rights without the prior written consent of Declarant. Section 11.05 Rights Transferable. Any Special Declarant Rights or Additional Reserved Right created or reserved under this ARTICLE XI for the benefit of Declarant may be transferred, in whole or in part, to any Person by an instrument expressly describing the rights transferred and recorded in the Records. Such instrument shall be executed by the transferor Declarant and the transferee. ARTICLE XII INSURANCE Section 12.01 Coverage. Commencing not later than the first conveyance of a Lot to a purchaser and to the extent reasonably available, the Association shall obtain and maintain insurance coverage as set forth in this Article. The Association shall have the power and authority to obtain additional policies or coverages not specified herein in the Board's discretion. If such insurance is not reasonably available, or if any policy of such insurance is canceled or not renewed without a replacement policy, or if the Board of Directors determines that any insurance described herein will not be maintained, the Board of Directors shall promptly cause notice of that fact to be delivered to all Owners and Eligible First Mortgagees at their respective last known addresses. (a) Property Insurance. The Association shall maintain property insurance on the Project for special form covered causes of loss (or such equivalent coverage as may hereafter be customarily offered in the insurance industry) in an amount not less than the full insurable replacement cost of the insured property (as determined by the Board of Directors) less applicable deductibles at the time insurance is purchased and at each renewal date, exclusive of land and other items normally excluded from property insurance policies. Co-insurance shall not be permitted. (b) Liability Insurance. The Association shall maintain commercial general liability insurance against claims and liabilities arising in connection with the ownership, existence, use, or management of the Project, insuring the Board of Directors, the Association, the Managing Agent, and their respective employees, agents and all Persons acting as agents therefor. The Declarant shall be included as an additional named insured in Declarant's capacity as an Owner and member of the Board of Directors. Owners shall be included as additional insureds but only for claims and liabilities arising in connection with the ownership interest in, existence, use or management of the Common Elements or membership in the Association. The insurance shall cover claims of one or more insured parties against the other insured parties. (c) Fidelity Insurance. The Association shall maintain fidelity insurance on all persons who control or disburse funds of the Association. Coverage shall not be less in the aggregate than two months' current annual Assessments plus reserves, as calculated from the current Budget of the Association. Any person employed as an independent contractor by the Association, including the Managing Agent, shall be an insured employee in the policy of fidelity insurance specified above. (d) D&O Coverage. The Association shall maintain directors and officers coverage for members of the Board of Directors and any other parties that the Board of Directors elects to cover by such insurance, which may include, without limitation, the Managing Agent, committee members, volunteers, and Declarant representatives. (e) Other Insurance. The Board of Directors may also procure insurance against such additional risks of a type normally carried with respect to properties of comparable character and use that the Board of Directors deems reasonable and necessary in order to protect the Project, the Association and the Owners. (f) Owners' Policies. Each Owner of a Lot is encouraged to obtain additional insurance at such Owner's own cost for such Owner's own benefit covering all personal property within such Owner's Lot and all Improvements within the interior finished boundaries of such Owner's Lot. All such policies shall contain waivers of subrogation and provide further that the liability of the carriers issuing insurance to the Association hereunder shall not be affected or diminished by reason of any such insurance carried by any Owner. Each Owner waives and releases all claims against the Association to the extent such claim is covered by applicable insurance policies, regardless of whether damage loss or injury arose from the negligence or breach of any agreement by the Association. Each Owner acknowledges that insurance obtained by the Association does not obviate the need for an Owner to obtain separate insurance for such Owner's benefit. Each Owner may also obtain general liability insurance at such Owner's own cost for such Owner's own benefit covering operations and activities within such Owner's Lot. Such coverage may also extend to cover any legal liability imposed on an Owner due to such Owner's interest in the Common Elements. Section 12.02 Required Provisions. All insurance policies carried by the Association pursuant to the requirements of this ARTICLE must provide that: (a) each Owner and each Eligible First Mortgagee is an insured Person under the policy with respect to liability arising out of such Owner's interest in the Common Elements or membership in the Association; (b) the insurer waives its rights to subrogation under the policy against any Owner or member of an Owner's household; (c) no act or omission by any Owner or Eligible First Mortgagee, unless acting within the scope of such Owner's authority on behalf of the Association, if any, will void the policy or be a condition to recovery under the policy; (d) if, at the time of a loss under the policy, there is other insurance in the name of an Owner covering the risks covered by the policy (other than an Owner's policy covering such Owner's personal property), the Association's policy provides primary insurance; (e) any loss covered by the policies must be adjusted with the Association; (f) the insurance proceeds for any loss shall be payable to an insurance trustee designated for that purpose, or otherwise to the Association and not to any holder of a Security Interest; (g) the insurer shall issue certificates or memoranda of insurance to the Association and, upon request, to any Owner or holder of a Security Interest; and (h) the insurer issuing the policy may not cancel or refuse to renew the policy until thirty (30) days after notice of the proposed cancellation or non-renewal has been delivered to the Association and any Owner(s) and holder(s) of Security Interests to whom a certificate or memorandum of insurance has been issued at their respective last known addresses. Section 12.03 Claims by Owner. An Owner may file a claim against the policy of the Association to the same extent, and with the same effect, as if the Owner were a named insured if the following conditions are met: (a) the Owner has contacted the Board of Directors or Managing Agent in writing, and in accordance with any applicable association policies or procedures for owner-initiated insurance claims, regarding the subject matter of the claim, (b) the Owner has given the Association at least fifteen (15) days to respond in writing, and, if so requested, has given the Association's agent a reasonable opportunity to inspect the damage; and (c) the subject matter of the claim falls within the Association's insurance responsibilities. The Association's insurer, when determining premiums to be charged to the Association, shall not take into account any request by an Owner for a clarification of coverage. Section 12.04 Adjustment of Claims. The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment. To the extent the Association settles a property insurance claim, it shall have the authority to assess negligent Owners causing such loss or benefiting from such repair or restoration all deductibles paid by the Association. In the event more than one Lot is damaged by a loss, the Association, in its reasonable discretion, may assess each Owner a pro rata share of any deductible paid by the Association. Section 12.05 Copies of Policies. A copy of each insurance policy obtained by the Association shall be made available for inspection by any Owner at reasonable times. ARTICLE XIII RESTORATION UPON DAMAGE OR DESTRUCTION Section 13.01 Duty to Restore. Any portion of the Project, for which the Association is required to carry insurance under the Act, or for which insurance carried by the Association is in effect, that is damaged or destroyed must be repaired or replaced promptly by the Association unless: (a) the Project is terminated; (b) repair or replacement would be illegal under Applicable Law or prohibited under the Project Documents; (c) sixty-seven percent (67%) of the actual Total Voting Power of the Owners vote not to rebuild (unless a lesser percentage is required by Applicable Law and cannot be varied by Agreement, in which case such lesser percentage shall apply but such lesser percentage shall be required to include the vote not to rebuild of every Owner of a Lot or Limited Common Element that will not be rebuilt; or (d) prior to the conveyance of any Lot to a purchaser, the holder of a Security Interest on the damaged portion of the Project rightfully demands all or a substantial part of the insurance proceeds. In the event the Project is not repaired or replaced as allowed by Subsections (a), (b) and (c) above, then the Real Estate in the Project shall be sold and the proceeds distributed pursuant to the procedures provided for in the Act for termination of condominium projects. Section 13.02 Cost. The cost of repair or replacement in excess of insurance proceeds and reserves is a Common Expense. Section 13.03 Plans. The Property must be repaired and restored in accordance with either the original plans and specifications or other plans and specifications which have been approved by the Board of Directors and any percentage of Owners required to approve the same under the Act. Section 13.04 Replacement of Less Than Entire Property. If only a portion of the Project (rather than the entire Project) is repaired or replaced, the insurance proceeds attributable to the damaged Common Elements shall be used to restore the damaged area to a condition compatible with the remainder of the Project and any remaining proceeds (after any other distribution required by Applicable Law) shall be distributed or credited as follows: (a) the insurance proceeds attributable to a Lot and Limited Common Elements that are not rebuilt must first be distributed or credited to the Owner(s) of the Lot and to the Owner(s) of the Lot to which the Limited Common Elements were allocated, or to holders of Security Interests, as their interests may appear; (b) the remainder of the proceeds must be distributed or credited to each Owner or holder of a Security Interest, as their interests may appear, in proportion to the Allocated Interests in the Common Elements of all the Lots; and (c) if the Owners vote not to rebuild a Lot, the Allocated Interests of the Lot shall be reallocated as if the Lot had been condemned, and the Association promptly shall prepare, execute and record an amendment to this Declaration reflecting the reallocation. Section 13.05 Insurance Proceeds. The insurance trustee, or if there is no insurance trustee, then the Board of Directors, acting by the President, shall hold any insurance proceeds in trust for the Association, Owners and holders of Security Interests as their interest may appear. Subject to the provisions of the Sections above, the proceeds shall be disbursed first for the repair or restoration of the damaged Property, and the Association, Owners and holders of Security Interests are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the Property has been completely repaired or restored, or the Project is terminated, in which event the surplus proceeds will be distributed as provided in this Declaration and the Act. Except to the extent otherwise required by the Act, no provision of the Project Documents shall be construed to grant to any Owner, any priority over any rights of any First Mortgagees pursuant to the terms of their Security Interests in the case of the distribution to Owners of insurance proceeds for losses to Lots and/or the Common Elements or any portions thereof. Section 13.06 Certificates by the Board of Directors. The insurance trustee, if any, may rely on the following certifications in writing made by the Board of Directors: (a) whether or not damaged or destroyed Property is to be repaired or restored; and (b) the amount or amounts to be paid for repairs or restoration and the names and addresses of the parties to whom such amounts are to be paid. Section 13.07 Certificates by Attorneys or Title Insurance Companies. If payments are to be made to Owners or holders of Security Interests, the Board of Directors, and the insurance trustee, if any, shall obtain and may rely on a title insurance company or attorney's ce1tificate of title or a title insurance policy based on a search of the Records from the date of recording of this Declaration stating the names of the Owners and the holders of Security Interest. ARTICLE XIV CONDEMNATION If all or part of the Project is taken by any power having the authority of eminent domain, all compensation and damages for and on account of the taking shall be payable in accordance with the provisions on eminent domain in the Act. ARTICLE XV MORTGAGEE PROTECTIONS Section 15.01 Introduction. This ARTICLE establishes certain standards and covenants which are for the benefit of Eligible First Mortgagees. This ARTICLE is supplemental to, and not in substitution for, any other provisions of this Declaration, but in the case of any conflict, this Article shall control. To the extent permitted under Colorado law and as applicable, necessary or proper, the provisions of this Article apply to this Declaration and also to the Articles, Bylaws and Rules and Regulations of the Association. Section 15.02 Percentage of First Mortgagees. Unless specifically provided otherwise, wherever in this Declaration the approval or consent of a specified percentage of Eligible First Mortgagees is required, it shall mean the approval or consent of the stated percentage of the voting power of Eligible First Mortgagees. Each Eligible First Mortgagee shall be entitled to the same voting power as allocated to the encumbered Lot. Section 15.03 Notice of Actions. Any First Mortgagee and any Agency which holds, insures or guarantees a First Mortgage, upon written request to the Association (which shall include the Agency's name and address and Lot number), will be entitled to timely written notice of: (a) any condemnation loss or any casualty loss which affects a material portion of the Common Elements or any Lot in which an interest is held by the Eligible First Mortgagee; (b) if requested by such Eligible First Mortgagee, any delinquency in the payment of Assessments which remains uncured for sixty (60) days by an Owner whose Lot is encumbered by a Security Interest held by such Eligible First Mortgagee; (c) any lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association; (d) any proposed action which would require the consent of Eligible First Mortgagees as set forth in this Article; (e) any judgment rendered against the Association having a material effect on the ability of the Association to perform its obligations herewith; and (f) if requested by such Eligible First Mortgagee, a copy of any financial statement of the Association. Section 15.04 Consent Required. The Association may not take any of the following actions, except as such rights have been specifically reserved by Declarant under the provisions of this Declaration, without the consent of sixty-seven percent (67%) of the Eligible First Mortgagees: (a) sale, conveyance or encumbrance of the Common Elements (provided, however, that the granting of easements for public utilities, for construction and maintenance of roads within the Project, or for other purposes provided for in this Declaration will not be deemed a transfer within the meaning of this clause); (b) restoration or repair of the Project (after hazard damage or partial condemnation) in a manner other than that specified in this Declaration; (c) termination of this Declaration for reasons other than substantial destruction or condemnation, subject to the approval percentages required for such termination; (d) merger of the Project with any other common interest community; or (e) any decision not to repair or to replace the Common Elements when repair or replacement is othe1wise required under this Declaration. Section 15.05 Notice of Objection. Unless an Eligible First Mortgagee provides the Secretary of the Association with written notice of its objection, if any, to any proposed action requiring the approval of Eligible First Mm1gagees within sixty (60) days following the receipt of notice of such proposed action, the Eligible First Mortgagee will be deemed conclusively to have consented to or approved the proposed amendment or action. Section 15.06 First Mortgagees' Rights. (a) Advances. First Mortgagees, jointly or singly, may pay taxes or other charges which are in default and which may or have become a charge against any of the Common Elements or improvements thereon, and may pay overdue premiums on hazard insurance policies for the Common Elements. First Mortgagees making such payments shall be owed immediate reimbursement from the Association. (b) Cure Rights. First Mortgagees shall be entitled to cure any delinquency of the Owner of a Lot encumbered by a First Mortgage in the payment of Assessments. In that event, the First Mortgagee shall be entitled to obtain a release from the lien imposed or perfected by reason of such delinquency. In addition, First Mortgagees of Declarant shall be entitled to cure, following written notice, any violation, breach of, or failure to comply with any provision of the Project Documents by Declarant before the Association or its Managing Agent may exercise remedies against the Declarant or the Declarant's Lots. Section 15.07 Limitations on First Mortgagee’s Rights. No requirement for approval or consent by a First Mortgagee provided in this ARTICLE shall operate to: (a) deny or delegate control over the general administrative affairs of the Association by the Owners or the Board of Directors; or (b) prevent the Association or Board of Directors from commencing, intervening and/or settling any legal proceeding. Section 15.08 Reserved Declarant Rights. No provision or requirement of this ARTICLE XIX shall apply to or contravene any Reserved Declarant Rights reserved to Declarant in this Declaration. Section 15.09 Lien Protection for Mortgages. Except as set forth in the Act or as required by other Applicable Law, no violation or breach of or failure to comply with any provision of the Declaration and no action to enforce any such provision shall affect, defeat, render invalid or impair the lien of any Security Interest taken in good faith or for value and perfected by recording in the Records, nor shall such violation, breach, failure to comply or action to enforce affect, defeat, render invalid or impair the title or interest of the holder of any such Security Interest or the title or interest acquired by any purchaser upon foreclosure of any such Security Interest or other lien. Section 15.10 Audited Financial Statement. Upon written request from any Agency or First Mortgagee which has an interest or prospective interest in any Lot or the Project, the Association shall prepare and furnish within ninety days an audited financial statement of the Association for the immediately preceding fiscal year at the at the expense of such First Mortgagee. ARTICLE XVI DISPUTE RESOLUTION Section 16.01 Mediation of Disputes between Owners and Association. (a) Prior to pursuing any of the enforcement proceedings set forth below, any disputes between the Association and one or more Owners shall be submitted to non-binding mediation. Such mediation shall be conducted by the Judicial Arbiter Group ("JAG") in Denver, Colorado, pursuant to the mediation standards established by JAG. Such mediation shall be governed by the laws of the State of Colorado. The parties shall select a mediator and shall conduct and complete the mediation within 45 days after the date JAG is first contacted by either party. Notwithstanding anything to the contrary set forth herein, the mediator shall not have the authority to impose a settlement on the parties. (b) If the mediation provided for in Section 16.01(a) does not result in a settlement of such dispute between the Association and one or more Owners, the following enforcement provisions shall apply: (i) Enforcement of the terms and conditions of this Declaration with respect to the Association or the Common Elements shall be enforceable by any Owner by a proceeding for injunctive relief. (ii) Enforcement of the terms and conditions of this Declaration with respect to an Owner or a Lot shall be enforceable by Declarant or by the Association by: (A) a proceeding for injunctive relief; (B) a suit or action to recover damages; and/or (C) in the discretion of the Association, for so long as any Owner fails to comply with any such provisions, exclusion of such Owner and its Occupants from the use of any Common Elements and from participation in any Association affairs. (c) By acceptance of a deed to a Lot, an Owner agrees to be bound by the terms and conditions of this Declaration. In addition to all other remedies provided to the Association in this Declaration, if an Owner fails to perform or observe any covenant or condition to be performed or observed by such Owner under this Declaration or any other Association Document, the Association shall have the following special rights and remedies: (d) The Association may, but is not obligated to, cure such failure to comply at the Owner's sole cost and expense. If the Association cures any such failure to comply, the Owner shall pay to the Association the amount of all costs incurred by the Association in connection therewith within 30 days after the Owner receives a written notice of a Default Assessment therefor from the Association. (e) The Association may, after notice and opportunity to be heard, fine the Owner, as a Default Assessment, an amount not to exceed $100 per day that such violation remains uncured for each violation. The Owner shall pay any such fine to the Association within 30 days after the Owner receives written notice of a Default Assessment therefor from the Association. (f) With respect to an Owner's failure to pay an installment of any Assessment, the Association may accelerate the due date for the payment of the full amount of the Assessment. (g) The Association shall have all other rights and remedies available to it under this Declaration, at law or in equity. (h) Notwithstanding anything to the contrary contained in this Declaration, any sums paid to the Association by an Owner shall be applied in the following order: first, to costs incurred by the Association to collect outstanding unpaid sums due to the Association; second, to satisfy any outstanding Default Assessments or other fines; third, to satisfy any outstanding interest accrued on any assessed but unpaid Assessments; and fourth, to satisfy any assessed but unpaid Assessments other than Default Assessments. (i) All rights and remedies of the Association shall be cumulative and the exercise of one right or remedy shall not preclude the exercise of any other right or remedy. (j) The Association may adopt such Rules and Regulations as the Board of Directors deems necessary or appropriate to administer and enforce the terms and conditions of this Declaration and the other Project Documents. Section 16.02 Attorneys' Fees. In the event of any dispute under or with respect to this Declaration or any other Condominium Document, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses in connection therewith, including the fees and disbursements of any attorneys, accountants, engineers, appraisers or other professionals engaged by the prevailing party. Section 16.03 Interest. If an Owner fails to pay to the Association any Assessment or other amount due to the Association as and when the same becomes due, the Owner shall pay to the Association interest on such unpaid amount at the rate of 18% per annum, or such other rate as the Board of Directors may establish from time to time, from the due date of such unpaid amount until the date paid. Section 16.04 Nonwaiver. Failure by the Association or any Owner to enforce any covenant, condition, restriction, reservation, easement, assessment, charge, lien or other provision of this Declaration or any other Condominium Document shall in no way be deemed to be a waiver of the right to do so thereafter. ARTICLE XVII DURATION OF COVENANTS; AMENDMENT AND TERMINATION Section 17.01 Term. The covenants, conditions, restrictions, reservations, easements, assessments, charges and liens set forth in this Declaration shall run with and bind the Property until this Declaration is terminated pursuant to the te1ms hereof. Section 17.02 Amendment of Declaration. This Declaration may be amended as follows: (a) General Amendments. Except as otherwise expressly permitted or restricted by this Section and as provided for in ARTICLE XV, this Declaration may be amended by a vote or agreement of a Majority of Owners. To the extent the proposed amendment involves an issue subject to the Subassociation voting, a majority of a quorum of the Owners in the affected Subassociation will also be required, such that the Majority of Owners must include a majority of a quorum of the Owners in such Subassociation. Notwithstanding the foregoing provision, the percentage of the Total Voting Power necessary to amend a specific clause or provision of this Declaration shall not be less than the percentage of affirmative voting power prescribed for action to be taken under that clause or provision. The Association and the Owners may not, while any Reserved Declarant Right exists, amend this Declaration in any matter that restricts or reduces Declarant's rights or increases or expands Declarant's obligations or liabilities hereunder without Declarant's written consent. (b) Permitted Use Amendments. Except to the extent otherwise expressly permitted or required in this Declaration, this Declaration may be amended to change the uses to which any Lot is restricted only by a vote or agreement of Owners holding at least sixty-seven percent (67%) of the Total Voting Power. (c) Allocated Interest Amendments. Except to the extent otherwise expressly permitted or required in this Declaration or under the Act, this Declaration may be amended to increase Reserved Declarant Rights, increase the number of Lots or change the boundaries of any Lot or the Allocated Interests of a Lot only by a vote or agreement of Owners holding at least sixty-seven percent (67%) of the Total Voting Power, including sixty-seven percent (67%) of the voting power allocated to Lots not owned by Declarant. (d) Reserved Amendment Rights. To the extent that this Declaration and the Act expressly permit or require amendments that may be executed by Declarant or by the Association, this Declaration may be amended by amendments executed solely by Declarant or solely by the Association. To the extent not prohibited by the Act, Declarant may execute any amendment required or necessary to comply with Applicable Law and any amendment required or appropriate to comply with the secondary mortgage market or Colorado state regulatory requirements. In the event of an amendment by Declarant in connection with the exercise of the Reserved Declarant Rights pursuant to the terms of this Declaration, recording of such amendments to this Declaration and any associated supplement to the Map in the Records shall automatically: (i) vest in each existing Owner the reallocated Allocated Interests appurtenant to such Owner's Lot; and (ii) vest in each existing holder of a Security Interest a perfected Security Interest in the reallocated Allocated Interests appurtenant to the encumbered Lot. Upon the recording of such an amendment to this Declaration, the definitions used in this Declaration shall automatically be extended to encompass and to refer to the Property, as expanded. All conveyances of Lots after such expansion shall be effective to transfer rights in all Common Elements as expanded, whether or not reference is made to any amendment to this Declaration or supplement to the Map. Reference to this Declaration and Map in any instrument shall be deemed to include all amendments to this Declaration and supplements to the Map without specific reference thereto. Section 17.03 Amendment of Other Documents. The Articles of Incorporation and Bylaws may be amended in accordance with the terns of such documents and the Nonprofit Act. The Rules and Regulations may be amended as determined by the Board of Directors. While any Reserved Declarant Right exists, the Project Documents may not be amended in any matter that restricts or reduces Declarant's rights or increases Declarant's obligations or liabilities thereunder without Declarant's written consent. Section 17.04 Execution of Amendments; Expenses. Any amendment shall be prepared, executed and recorded either by Declarant or by an officer of the Association designated for that purpose or, in the absence of a designation, by the President of the Association. All expenses associated with preparing and recording an amendment to this Declaration shall be the sole responsibility of: (a) any Owners desiring an amendment as provided for in this Declaration or the Act; (b) Declarant, to the extent the right to amend this Declaration is reserved to Declarant and exercised by Declarant; or (c) in all other cases by the Association as a Common Expense. Section 17.05 When Modifications Permitted. Notwithstanding the provisions of Section 17.02 above, no amendment or termination of this Declaration shall be effective in any event during the Period of Declarant Control, unless the written approval of Declarant is first obtained. Section 17.06 Recording of Amendments. Any amendment to this Declaration made in accordance with this ARTICLE shall be immediately effective upon the recording of the executed amendment in the Records together with a duly authenticated certificate of Declarant or the Secretary of the Association, as applicable, stating that the required vote of Owners, if any, and required consents of First Mortgagees (and/or Eligible First Mortgagee, as applicable), if any, were obtained and are on file in the office of the Association or were not required to be obtained pursuant to this Declaration or the Act. The amendment must be indexed in the grantee's index in the name of the Project and the Association and in the grantor's index in the name of each Person or entity executing the Amendment. Section 17.07 Rights of Declarant. Notwithstanding anything to the contrary contained herein, and to the extent permitted by the Act, no amendment or modification to, or impairment of any of the rights contained in ARTICLE XI, Section 17.05, this Section nor any provision of this Declaration reserving or creating any Reserved Declarant Right shall be effective or enforceable without the prior consent of Declarant during the longer of the Period of Declarant Control or the period in which Declarant continues to hold Reserved Declarant Rights. Section 17.08 Rights of Eligible First Mortgagees. To the extent allowed by the Act, Eligible First Mortgagees shall have the rights to approve specified action of the Owners or the Association as a condition to the effectiveness of those actions as provided in ARTICLE XV entitled "Mortgagee Protections" in the Act. ARTICLE XVIII MISCELLANEOUS Section 18.01 Enforcement. The provisions of the Act and the provisions of the Project Documents may be enforced by any Person subject to this Declaration through proceedings at law or in equity against any Person subject to this Declaration who has violated or is violating or attempting to violate such provisions, all as more specifically set forth in the Act. Section 18.02 Notices. All notices, demands, or other communications required or permitted to be given hereunder shall be in writing, and any and all such items shall be deemed to have been duly delivered upon personal delivery; upon actual receipt, in the case of notices forwarded by certified mail, return receipt requested, postage prepaid; as of 12:00 Noon on the immediately following business day after deposit with Federal Express or a similar overnight courier service; or as of the third business hour (a business hour being one of the hours from 8:00a.m. to 5:00p.m. on business days) after transmitting by telecopier, facsimile, or electronic mail. Section 18.03 Nonwaiver. Failure by Declarant, the Association, or any Owner or Eligible First Mortgagee to enforce any covenant, condition, restriction, easement, reservation, right-of- way, or other provision contained in the Project Documents shall in no way or event be deemed to be a waiver of the right to do so thereafter. Section 18.04 Severability. The provisions of this Declaration shall be deemed to be independent and severable, and the invalidity of any one or more of the provisions of this Declaration by judgment or court order or decree shall in no way affect the validity or enforceability of any of the other provisions, which provisions shall remain in full force and effect. Any provision which would violate the rule against perpetuities and the rule prohibiting unlawful restraints on alienation shall be construed in a manner as to make this Declaration valid and enforceable. Section 18.05 Number and Gender. Unless the context provides or requires to the contrary, the use of the singular herein shall include the plural, the use of the plural shall include the singular, and the use of any gender shall include all genders. Section 18.06 Captions. The captions to the Articles and Sections and the Table of Contents at the beginning of this Declaration are inserted only as a matter of convenience and for reference, and are in no way to be construed to define, limit, or otherwise describe the scope of this Declaration or the intent of any provision of this Declaration. Section 18.07 Conflicts in Legal Documents. In case of conflicts between the provisions in this Declaration and the Articles of Incorporation or the Bylaws, this Declaration shall control. In case of conflicts in the provisions in the Articles of Incorporation and the Bylaws, the Articles of lncorporation shall control. Section 18.08 Exhibits. All the Exhibits attached to and described in this Declaration are incorporated in this Declaration by this reference. Section 18.09 Choice of Law. This Declaration shall be construed and interpreted in accordance with the laws of the State of Colorado, and specifically, the provisions of the Act and not the general common law (including remedies) of tenancy-in-common. Section 18.10 Third Party Beneficiary. This Declaration is submitted, imposed, and declared solely for the benefit of Declarant, Owners, First Mortgagees, and their respective successors, assigns, heirs, executors, administrators, and personal representatives. No party shall be deemed a third party beneficiary of this Declaration. [Remainder of Page Intentionally Left Blank] Executed as of the ___ day of _________________, 2023. Eastbank, LLC, a Colorado limited liability company By: STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me this ____ day of ________,2023, by _____________, as Authorized Representative of _____________________________. Witness my hand and official seal. My Commission Expires: MORTGAGEE'S CONSENT The undersigned hereby consents to the execution and recording of the foregoing Declaration and hereby subordinates the lien of its Deed of Trust, dated _________________ and recorded ________________________ at Reception No. ________________ in the records of Garfield County, Colorado, to this Declaration and the effect hereof. Dated: ____________________________________ STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me this ____ day of ________,2023, by _____________, as Authorized Representative of _____________________________. Witness my hand and official seal. My Commission Expires: Exhibit A To Declaration LEGAL DESCRIPTION The Property referred to in the Declaration is described as follows: [ ] Exhibit B to Declaration TABLE OF ALLOCATED INTERESTS FOR MASTER ASSOCIATION Lot No. Percentage Share of General Common Elements Percentage Share of General Common Expenses Votes in the Affairs of Master Association [Update upon Subdivision] Exhibit C to Declaration EASEMENTS AND LICENSES OF RECORD 1. Any and all unpaid taxes and assessments and any unredeemed tax sales. 2. [Insert Exceptions from Title Commitment]