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DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
HALFMOON VILLAGE SUBDIVISION
CONTENTS
ARTICLEI...................................................................................................................................................2
DEFINITIONS.......................................................................................................................................... 2
ARTICLEH.................................................................................................................................................. 5
MEMBERSHIP AND VOTING RIGHTS............................................................................................... 5
ARTICLEIII................................................................................................................................................. 5
EXECUTIVE BOARD NEMBERS AND OFFICERS............................................................................ 5
ARTICLEIV................................................................................................................................................ 7
COVENANT FOR MAINTENANCE ASSESSMENTS.........................................................................7
ARTICLEV......................................................................................................................I......................... II
ARCHITECTURAL REVIEW COMMITTEE...................................................................................... I I
ARTICLEVI..............................................................................................................................................12
INSURANCE..........................................................................................................................................12
ARTICLEVII .............................................................................................................................................16
DAMAGE OR DESTRUCTION............................................................................................................16
ARTICLEVIII............................................................................................................................................17
EXTERIOR MAINTENANCE...............................................................................................................17
ARTICLEIX..............................................................................................................................................19
RESTRICTIONS....................................................................................................................................19
ARTICLEX................................................................................................................................................25
PROPERTY RIGHTS IN THE COMMON ELEMENTS...................................................................... 25
ARTICLEXI.............................................................................................................................................. 27
GENERALPROVISIONS.....................................................................................................................27
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DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
HALFMOON VILLAGE SUBDIVISION
THIS DECLARATION is made and entered into by Halfmoon Village LLC, a Colorado Limited Liability
Corporation ("Declarant").
WITNESSETH:
THAT, WHEREAS, Declarant is the owner of that certain real property in the County of Garfield,
State of Colorado, which is described on Exhibit A, attached hereto and incorporated herein by this
Reference; and
WHEREAS, Declarant desires to subject and place upon the above -described property certain
covenants, conditions, restrictions, easements, reservations, rights -of -way, obligations, liabilities and other
charges set forth herein for the purpose of protecting the value and desirability of said property and for the
purpose of furthering a plan for the improvement, sale and ownership of said property, to the end that a
harmonious and attractive development of said property may be accomplished and the health, comfort,
safety, convenience and general welfare of the Declarant, its successors and assigns in said property, or any
portion thereof, may be promoted and safeguarded.
NOW, THEREFORE, Declarant hereby declares that all of the property described above shall be
held, sold, and conveyed subject to the following covenants, conditions, restrictions, easements, rights -of -
way, obligations, liabilities, charges and other provisions set forth herein, which are for the purpose of
protecting the value and desirability of, and which shall run with, the above -described property and be
binding on all parties having any right, title, or interest in the above -described property or any part thereof,
their heirs, personal representatives, successors, and assigns, and shall inure to the benefit of each owner
thereof.
ARTICLE I
FOINS-RU-1 CORK
1. "Act" means the Colorado Common Interest Ownership Act, C.R.S. 38-33.3-101, et al., as
amended.
2. "Agencies" means and collectively refers to the Government National Mortgage Association
(GNMA), the Federal Home Loan Mortgage Corporation (FHLMC), the Federal National Mortgage
Association (FNMA), the Department of Housing and Urban Development (HUD), the Veterans
Administration (VA) or any other governmental or quasi -governmental agency or any other public, quasi -
public or private entity which performs (or may in the future perform) functions similar to those currently
performed by any of such entities.
3. "Allocated Interests" means the Common Expense Liability and votes in the Association
allocated to each Unit. The Allocated Interest of each Unit shall be equal to a fraction, the numerator of
which is 1 and the denominator of which is the total number of Units within the Common Interest
Community from time to time.
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4. "Architectural Review Committee" means the committee appointed by the Declarant or by the
Association to review and approve or disapprove plans for Improvements, as more fully provided in this
Declaration.
5. "Association" means Halfmoon Village Homeowners Association, Inc., a unit owners'
association organized under section 38-33.3-301 of the Act.
6. "Common Elements" means any real estate owned or leased by the Association other than a Unit
and shall expressly include, without limitation, the Limited Common Elements. The Common Elements
initially owned by the Association upon execution of this Declaration by Declarant are described on Exhibit
B attached hereto and incorporated herein by this reference.
7. "Common Expense Liability" means the liability for Common Expenses allocated to each Unit
based on its Allocated Interest.
8. "Common Expenses" means expenditures made or liabilities incurred by or on behalf of the
Association, together with any allocations to reserves.
9. "Common Interest Community" means the real estate described in Exhibit A to this Declaration,
as supplemented and amended from time to time, with respect to which a Person, by virtue of such Person's
ownership of a Unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or
improvement of other real estate described in this Declaration.
10. "Declarant" means Halfmoon Village LLC, a Colorado limited liability corporation, and any
other Person or group of Persons acting in concert who:
(a) As part of a common promotional plan, offers to dispose of to a purchaser such Declarant's
interest in a Unit not previously disposed of to a purchaser; or
(b) Reserves or succeeds to any Special Declarant Right.
11. "Declaration" means this Declaration of Covenants, Conditions and Restrictions and any other
recorded instruments, however denominated, that create this Common Interest Community, including any
amendments to those instruments and also including, but not limited to, plats and maps.
12. "Development Rights" means any right or combination of rights reserved by a Declarant in this
Declaration to add real estate to this Common Interest Community and to create Units or Common Elements
within this Common Interest Community in connection with the addition of such real estate.
13. "Executive Board" means the body, regardless of name, designated in this Declaration and the
Bylaws of the Association to act on behalf of the Association.
14. "Improvements" means all exterior improvements, structures, and any appurtenances thereto
or components thereof of every type or kind, and all landscaping features, including, but not limited to,
buildings, patios, patio covers, awnings, solar collectors, painting or other finish materials on any visible
structure, additions, walkways, sprinkler systems, garages, drive- ways, screening walls, retaining walls,
stairs, decks, landscaping, hedges, windbreaks, plantings, trees, shrubs, flowers, vegetables, sod, gravel,
bark, exterior light fixtures, poles, signs, exterior tanks, and exterior cooling equipment,
15. "Limited Common Elements" means those parts of the Common Elements which are limited to
and reserved for the exclusive use of the Unit Owner(s) of a particular Unit. Without limiting the foregoing,
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the Limited Common Elements shall include each driveway which provides vehicular access from the street
to the garage of a particular Unit, and the walk leading from the front sidewalk or street to the porch or
front door of a particular Unit. Each Limited Common Element shall be used in connection with the
applicable Unit to the exclusion of the use thereof by the other Unit Owners, except by invitation. No
reference to any Limited Common Element need be made in any instrument of conveyance, encumbrance
or other instrument.
16. "Member" means each Unit Owner, membership in the Association shall be appurtenant to, and
may not be separated from, ownership of a Unit.
17. "Period of Declarant Control" means a length of time expiring ten (10) years after initial
recording of this Declaration in Garfield County, Colorado; provided, that the Period of Declarant Control
shall terminate no later than either sixty (60) days after conveyance of seventy-five percent (75%) of the
Units that May Be Created to Unit Owners other than a Declarant, two (2) years after the last conveyance
of a Unit by the Declarant in the ordinary course of business, or two (2) years after any right to add new
Units to the Declaration was last exercised.
18. "Person" means a natural person, a corporation, a partnership, a limited liability corporation,
an association, a trust, or any other entity or any combination thereof.
19. "Security Interest" means an interest in real estate or personal property created by contractor
conveyance which secures payment or performance of any 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 the
Association, and any other consensual lien or title retention contract intended as security for an obligation.
For purposes of Article IV, Section 12 hereof, and, with respect to notice of cancellation or substantial
modification of certain insurance policies, to Article VI, Section 3, hereof, "Security Interest" shall also
mean and refer to any executory land sales contract wherein the Administrator of Veterans Affairs, an
Officer of the United States of America, is the seller, whether such contract is recorded or not, and whether
such contract is owned by the said Administrator or has been assigned by the Administrator and is owned
by the Administrator's assignee, or a remote assignee, and the land records in the Office of the Clerk and
Recorder of Garfield County, Colorado, show the Administrator as having the record title to the Unit.
20. "Security Interest Holder" means any Person named as a mortgagee or beneficiary, or in a
similar capacity, under any Security Interest (including, for purposes of Article IV, Section 12 hereof, and,
with respect to notice of cancellation or substantial modification of certain insurance policies, to Article VI,
Section 3 hereof, the Administrator of Veterans Affairs, an Officer of the United States of America, and his
assigns under any executory land sales contract wherein the said Administrator is identified as the seller,
whether such contract is recorded or not and the land records of the Clerk and Recorder of Garfield County,
Colorado, show the said Administrator as having the record title to the Unit), or any successor to the interest
of any such Person under such Security Interest.
21. "Special Declarant Rights" means rights reserved for the benefit of a Declarant to perform the
following acts: To complete Improvements indicated on plats and maps filed with the Declaration, to
exercise any Development Right, to maintain sales offices, management offices, signs advertising the
Common Interest Community, and models, to use easements through the Common Elements for the purpose
of making Improvements within the Common Interest Community or within real estate which may be added
to the Common Interest Community; to make the Common Interest Community subject to a master
association, to merge or consolidate a Common Interest Community of the same form of ownership; or to
appoint or remove any officer of the Association or any Executive Board member during any Period of
Declarant Control. All of the Special Declarant Rights may be exercised by the Declarant with respect to
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any portion of the property now or hereafter within the Common Interest Community. Declarant may
exercise any or all of these Special Declarant Rights at any time and from time to time. Such rights shall
terminate automatically on the earlier of the following events: (a) conveyance of the last Unit by Declarant
to a Unit Owner other than Declarant; (b) ten (10) years from the date of recordation of this Declaration,
except with respect to the appointment of officers and directors which may only be exercised in accordance
with Article III hereof.
22. "Unit" means any separate numbered lot shown upon any recorded subdivision map of the real
property described on the attached Exhibit A with the exception of the Common Elements and any public
streets.
23. "Unit Owner" means the Declarant or other Person who owns a Unit, but does not include a
Person having an interest in a Unit solely as security for an obligation. The Declarant is the owner of any
Unit created by the Declaration until that Unit is conveyed to another Person who may or may not be a
Declarant under this Article,
24. "Units that day Be Created" means forty-eight (48) Units, which shall be the maximum number
of Units that may be subject to this Declaration.
ARTICLE II
MEMBERSHIP AND VOTING RIGHTS
1. Membership. The membership of the Association at all times shall consist exclusively of all
Unit Owners or, following termination of the Common Interest Community, of all former Unit Owners
entitled to distributions of proceeds under the Act or their heirs, personal representatives, successors or
assigns. Membership shall be appurtenant to and may not be separated from ownership of any Unit.
2. One Class of Membershim The Association shall have one class of voting membership. Each
Unit Owner shall be entitled to one (1) vote for each Unit owned in accordance with the Allocated Interest
attributable to such Unit, except that no votes allocated to a Unit owned by the Association may be cast.
The total number of votes which may be cast in connection with any matter shall be equal to the total
number of Units then existing within the Association. Except as otherwise provided in Article III of this
Declaration, during the Period of Declarant Control, the Declarant or Persons appointed by the Declarant
may appoint all officers and directors of the Association and may remove all officers and directors of the
Executive Board which have been appointed by such Declarant. A Declarant may voluntarily surrender the
right to appoint and remove officers and members of the Executive Board before termination of the Period
of Declarant Control; but, in that event, the Declarant may require, for the duration of the Period of
Declarant Control, that specified actions of the Association or Executive Board, as described in a recorded
instrument executed by the Declarant, be approved by the Declarant before they become effective.
ARTICLE III
EXECUTIVE BOARD NEMBERS AND OFFICERS
1. Authorfty of Executive Board. Except as provided in this Declaration or the Association Bylaws,
the Executive Board may act in all instances on behalf of the Association.
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2. Election of Unit Owners During Period of Declarant Control. No later than sixty (60) days after
conveyance of twenty- five percent (25%) of the Units that may be created to unit owners other than a
Declarant, at least one (1) member and not less than twenty-five percent (25%) of the members of the
Executive Board must be elected by Unit Owners other than the Declarant. Not later than sixty (60) days
after conveyance of fifty percent (50%) of the Units that may be created to unit owners other than a
Declarant, not less than thirty-three and one-third percent (33 1/3%) of the members of the Executive Board
must be elected by Unit Owners other than the Declarant.
3. Authority of Declarant. Except as otherwise provided in this Article, during the Period of
Declarant Control. the Declarant or Persons appointed by the Declarant may appoint all officers and
directors and may remove all officers and directors of the Executive Board appointed by it.
4. Termination of Period of Declarant Control. Not later than the termination of any Period of
Declarant Control, the Unit Owners shall elect an Executive Board of at least three members, at Ieast a
majority of whom must be Unit Owners other than the Declarant or designated representatives of Unit
Owners other than the Declarant. The Executive Board shall elect the officers. The Executive Board
members and officers shall take office upon election.
5. Delivery of Documents by Declarant. Within sixty (60) days after the Unit Owners other than
the Declarant elect a majority of the members of the Executive Board, the Declarant shall deliver to the
Association all property of the Unit Owners and of the Association held by or controlled by the Declarant,
including, without limitation, the following items:
(a) The original or a certified copy of the recorded Declaration, as amended, of the Association's
Articles of Incorporation, Bylaws, minute book, other books and records, and any Association rules and
regulations which may have been promulgated,
(b) An accounting for Association funds and financial statements from the date the Association
received funds and ending on the date the Period of Declarant Control ends. The financial statements shall
be audited by an independent certified public accountant and shall be accompanied by the accountant's
letter expressing either the opinion that the financial statements present fairly the financial position of the
Association in conformity with generally accepted accounting principles or a disclaimer of the accountant's
ability to attest to the fairness of the presentation of the financial information in conformity with generally
accepted accounting principles and the reasons therefor. The expense of the audit shall not be paid for or
charged to the Association,
(c) The Association funds or control thereof,
(d) All of the Declaranfs tangible personal property that has been represented by the Declarant to
be the property of the Association or all of the Declarant's tangible personal property that is necessary for,
and has been used exclusively in, the operation and enjoyment of the Common Elements, and inventories
of these properties,
(e) A copy, for the nonexclusive use by the Association, of the plans and specifications used in the
construction of the Improvements in the Common Interest Community,
(f) All insurance policies then in force in which the Unit Owners, the Association, or its directors
and officers are named as insured persons,
(g) Copies of any certificates of occupancy that may have been issued with respect to any
Improvements comprising the Common Interest Community,
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(h) Any other permits issued by governmental bodies applicable to the Common Interest
Community and which are currently in force or which were issued within one (1) year prior to the date on
which Unit Owners other than the Declarant took control of the Association,
(i) Written warranties of the contractor, subcontractors, suppliers and manufacturers that are still
effective;
6) A roster of Unit Owners and mortgagees and their addresses and telephone numbers, if known,
as shown on the Declarant's records;
(k) Employment contracts in which the Association is a contracting party; and
(1) Any service contract in which the Association is a contracting party or in which the Association
or the Unit Owners have any obligation to pay a fee to the Persons performing the services.
6. Budaet. Within thirty (30) days after adoption of any proposed budget for the Common Interest
Community, the Executive Board shall mail, by ordinary first-class mail, or otherwise deliver a summary
of the budget to all the Unit Owners and shall set a date for a meeting of the Unit Owners to consider
ratification of the budget not less than fourteen (14) nor more than sixty(60) days after mailing or other
delivery of the summary. Unless at that meeting the vote of eighty percent (80%) of the Units rejects the
budget, the budget is ratified, whether or not a quorum is present. In the event that the proposed budget is
rejected, the periodic budget last ratified by the Unit Owners must be continued until such time as the Unit
Owners ratify a subsequent budget proposed by the Executive Board.
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS
1. Creation of the Lien and Personal Obligation for Assessments. Each Unit Owner, including
Declarant, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants
and agrees and shall be personally obligated to pay to the Association: annual assessments or charges,
special assessments, and other charges, fines, fees, interest, late charges, and other amounts, all as provided
in this Declaration, with such assessments and other amounts to be established and collected as hereinafter
provided. The annual and special assessments, together with interest, late charges, costs, and reasonable
attorney's fees, shall be a charge on the Iand and shall be a continuing lien upon the Unit against which each
such assessment is made. The obligation for such payments by each Unit Owner to the Association is an
independent covenant with all amounts due, from time to time, payable in full when due without notice or
demand (except as otherwise expressly provided in this Declaration), and without set-off or deduction. All
Unit Owners of each Unit shall be jointly and severally liable to the Association for the payment of all
assessments, fees, charges and other amounts attributable to their Unit. Each assessment, together with
interest, late charges, costs, and reasonable attorney's fees, shall also be the personal obligation of the Person
who was the Unit Owner of such Unit at the time when the assessment became due.
The personal obligation for delinquent assessments shall not pass to such Unit Owner's successors
in title unless expressly assumed by them. The Association's lien on a Unit for assessment shall be superior
to any homestead exemption now or hereafter provided by the laws of the State of Colorado or any
exemption now or hereafter provided by the laws of the United States. The acceptance of a deed to land
subject to this Declaration shall constitute a waiver of the homestead and any other exemption as against
said assessment lien.
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2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively
to promote the recreation, health, safety and welfare of the residents of the Units, and for all of those
purposes and activities which may be required of the Association or which the Association may be
empowered to pursue pursuant to this Declaration or the Articles of Incorporation or Bylaws of the
Association, or by law, provided, however, that such assessments levied during the Period of Declarant
Control may not be used for the purpose of constructing capital Improvements.
3. Initial Annual Assessment. Until the effective date of an Association budget ratified by the Unit
Owners with a different amount for the Common Expense assessment, as provided above; the amount of
the annual Common Expense assessment against each Unit shall be computed at the rate of Five Hundred
Dollars and No cents ($500.00) per Unit Year.
4. Rate of Assessment. Annual and special assessments shall be fixed at a uniform rate for all Units
sufficient to meet the expected needs of the Association. The Common Expense assessments shall include
an adequate reserve fund for the maintenance, repair and replacement of those items that must be
maintained, repaired or replaced on a periodic basis, and for the payment of insurance deductibles. All
Common Expenses shall be assessed against all the Units in accordance with the Allocated Interests set
forth in this Declaration. If the Common Expense Liability is reallocated, Common Expense assessments
and any installment thereof not yet due shall be recalculated in accordance with the reallocated Common
Expense Liability,
5. Date of Commencement of Annual Assessments. Until the Association makes a Common
Expense assessment, the Declarant shall pay all Common Expenses. After any assessment has been made
by the Association, assessments shall be made no less frequently than annually and shall be based on a
budget adopted by the Association as provided above. The annual Common Expense assessments shall be
due and payable in monthly installments, in advance, or on such other dates, and with such frequency
(which may be other than monthly, but not less frequently than annually), as the Executive Board
determines in its discretion from time to time, provided that the first annual assessment shall be adjusted to
reflect the time remaining in the first Association fiscal year. Any Unit Owner purchasing a Unit between
Common Expense assessment due dates shall pay a pro rats share of the last payment due,
6. Special Assessments. In addition to the annual Common Expense assessments authorized in this
Article, the Association, with the approval of two-thirds (2/3) of a quorfun of Association votes cast by
Members voting in person or by proxy at a meeting duly called for this purpose, may levy, in any fiscal
year, a special assessment applicable to that year only, for the purpose of defraying in whole or in part the
cost of any construction, reconstruction, repair or replacement of a capital improvement upon any portion
of real property for which the Association has repair and/or reconstruction obligations, including fixtures
and personal property related thereto, or for repair or reconstruction of any damaged or destroyed
Improvements located on said real property, or for the funding of any operating deficit incurred by the
Association. Any such special assessment shall be set against each Unit in accordance with the Allocated
Interests set forth in this Declaration. A meeting of the Members called for the purpose of considering the
establishment of a special assessment shall be held in conformance with Section 7 of this Article IV.
Notwithstanding the foregoing, special assessments levied during the Period of Declarant Control may not
be used for the purpose of constructing capital Improvements.
7. Notice and Ouorum for Any Special Assessments. Written notice of any meeting called for the
purpose of taking any action authorized under Section 6 of this Article shall be sent to all Members not less
than 30 days nor more than 60 days in advance of the meeting. At the first such meeting called, the presence
of Members or of proxies entitled to cast sixty percent (60%) of all the Membership votes shall constitute
a quorum. If the required quorum is now present, another meeting may be called subject to the same notice
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requirement, and the required quorum at the subsequent meeting shall be one-half (112) of the required
quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following
the preceding meeting.
8. Lien for Assessments.
(a) The Association has a statutory lien on a Unit for any assessment levied against that Unit or for
fines imposed against its Unit Owner. Fees, charges, late charges, attorney fees, fines and interest charged
pursuant to this Declaration are enforceable as assessments under this Article. The amount of the lien shall
include all those items set forth in this Section from the time such items become due. If an assessment is
payable in installments, each installment is a lien from the time it becomes due, including the due date set
by any valid Association acceleration of installment obligations.
(b) Recording of the Declaration constitutes record notice and perfection of the lien. No further
recordation of any claim of lien for assessments is required. However, the Executive Board or managing
agent of the Association may prepare, and record in Garfield County, Colorado, a written notice setting
forth the amount of the unpaid indebtedness, the name of the Unit Owner of the Unit, and a description of
the Unit. If a lien is filed, the costs and expenses thereof shall be added to the assessment for the Unit
against which it is filed and collected as part and parcel thereof. The Association's lien maybe foreclosed
in like manner as a mortgage on real estate.
(c) A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are
instituted within six (6) years after the full amount of assessments become due.
(d) Unless the Declaration otherwise provides, if two(2) or more associations have liens for
assessments created at any time on the same property, those liens have equal priority.
9. Priority of Association Lien.
(a) A lien under this Article 1:V is prior to all other Iiens and encumbrances on a Unit except:
(1) Liens and encumbrances recorded before the recordation of the Declaration,
(2) A Security Interest on the Unit which has priority over all other Security Interests on
the Unit and which was recorded or perfected before the date on which the assessment
sought to be enforced became delinquent; and
(3) Liens for real estate taxes and other governmental assessments or charges against the
Unit.
(b) Subject to subsection (d) of this Section, a Iien under this Section is also prior to the Security
Interests described in the preceding subsection (a) to the extent of an amount equal to the Common Expense
assessments based on a periodic budget adopted by the Association as provided above, which would have
become due, in the absence of any acceleration, during the six (6) months immediately preceding institution
by either the Association or any party holding a lien senior to any part of the Association lien created under
this Section of an action or a nonjudicial foreclosure either to enforce or to extinguish the lien.
(c) This Section does not affect the priority of mechanics' or materiahnen's liens or the priority of
liens for other assessments made by the Association. Alien under this Article is not subject to the provisions
of part 2 of Article 41 of Title 38, C.R.S., as amended, or to the provisions of Section 15-11-201, C.R.S.
1973, as amended.
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(d) The Association shall have the statutory Iien described in subsection (a) of this Section for any
assessment levied or fine imposed. Such lien shall have the priority described in subsection (b) of this
Section.
10. Receiver. In any action by the Association to collect assessments or to foreclose a Iien for
unpaid assessments, the court may appoint a receiver of the Unit Owner to collect all sums alleged to be
due from the Unit Owner prior to or during the pending of the action. The court may order the receiver to
pay any sums held by the receiver to the Association during the pending of the action to the extent of the
Association's Common Expense assessments.
11. Certificate of Status of Assessments. The Association shall furnish to a Unit Owner or such
Unit Owner's designee or to a Security Interest Holder or its designee, upon written request delivered
personally or by certified mail, first class postage prepaid, return receipt, to the Association's registered
agent, a written statement setting forth the amount of unpaid assessments currently levied against such Unit
Owner's Unit. The statement shall be furnished within fourteen (14) calendar days after receipt of the
request and is binding on the Association, the Executive Board, and every Unit Owner. If no statement is
furnished to the Unit Owner or Security Interest Holder or their designee, delivered personaIIy or by
certified mail, first class postage prepaid, return receipt requested, to the inquiring party, then the
Association shall have no right to assert a lien upon the Unit for unpaid assessments which were due as of
the date of the request.
12. Effect of Non -Payment of Assessments, Remedies of the Association. Any assessment not paid
within ten (10) days after the due date thereof may bear interest from the due date at the rate of eight percent
(M) per annum, or at such lesser rate as may be set from time to time by the Executive Board, and the
Executive Board may assess thereon a Iate charge in such amount(s) per month as may be set at any time,
from time to time, by the Executive Board, so Iong as such amount(s) (in conjunction with the aforesaid
delinquent interest) does not exceed the applicable usury rate permitted by law at such time. The
Association may bring an action at law against the Unit Owner personally obligated to pay the same, or
foreclose the lien against such Unit Owner's Unit. If a judgment or decree is obtained, including without
limitation in a foreclosure action, such judgment or decree shall include interest on the assessment and a
reasonable attorney's fee to be fixed by the court, together with the costs of the action, and may include
interest and late charges, as above provided. No Unit Owner may be exempt from liability for payment of
the assessments by waiver of the use or enjoyment of any of the common Elements or by abandonment of
the Unit against which the assessments are made. This Article does not prohibit actions or suits to recover
sums for which this Declaration creates a lien or to prohibit the Association from taking a deed in lieu of
foreclosure.
13. Surplus Funds. Any surplus funds of the Association remaining after payment of or provision
for Common Expenses and any prepayment of or provision for reserves shall be retained by the Association
for use as directed by the Executive Board in its discretion from time to time and need not be paid to the
Unit Owners in proportion to their Common Expense Liability or credited to them to reduce their future
Common Expense Assessments.
14. Working Capital Fund. The Association or Declarant shall require the fast Unit Owner of any
Unit who purchases that Unit from Declarant to make a non-refundable contribution to the Association in
the amount of Five Hundred and 00/100 Dollars ($500.00.00) (regardless of whether or not assessments
have commenced as provided in Section 5 of this Article). Said contribution shall be collected and
transferred to the Association at the time of closing of the sale by Declarant of each Unit and shall, until
use, be maintained in a segregated account with other such working capital funds for the use and benefit of
the Association, including, without limitation, to meet unforeseen expenditures or to purchase additional
equipment, property or services. Such contribution to the working capital fund shall not relieve a Unit
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Owner from making regular payments of assessments as the same become due. Upon the transfer of his
Unit, a Unit Owner shall be entitled to a credit from his transferee (but not from the Association) for the
aforesaid contribution to working capital fund.
15. Assessments for Misconduct. If any common Expense is caused by the misconduct of any Unit
Owner, the Association may assess that Common Expense exclusively against such Unit Owner and his
Unit, and the amounts thereof shall be subject to all of the Association's rights with respect to the collection
and enforcement of assessments as provided in Article IV hereof.
ARTICLE V
ARCHITECTURAL REVIEW COMMITTEE
1. Composition of Committee. The Architectural Review Committee shall consist of three (3) or
more Persons appointed to the Executive Board; provided, however, that until all of the Units have been
conveyed by Declarant to the first Unit Owner thereof (other than Declarant), Declarant shall appoint the
Architectural Review Committee. The power to "appoint," as provided herein, shall include without
limitation the power to: constitute the initial membership of the Architectural Review Comrilittce, appoint
member(s) to the Architectural Review Committee on the occurrence of any vacancy therein, for whatever
reason; and remove any member of the Architectural Review Committee, with or without cause, at any
time, and appoint the successor thereof. Each such appointment may be made for such term(s) of office,
subject to the aforesaid power of removal, as may be set from time to time in the discretion of the appointor.
2. Review by Committee. No hnprovements shall be constructed, erected, placed, planted, applied
or installed upon any Unit unless complete plans and specifications therefor (said plans and specifications
to show exterior design, height, materials, color, and location of the Improvements, plotted horizontally and
vertically, location and size of driveways, location, size, and type of landscaping, walls, windbreaks and
grading plan, as well as such other materials and information as may be required by the Committee), shall
have been first submitted to and approved in writing by the Architectural Review Committee; provided,
however, that the Declarant shall be exempt from seeking or obtaining Architectural Review Committee
approval during Declarant's development of, construction on, or sales of any Unit or residence on any Unit.
The Architectural Review Committee shall exercise its reasonable judgment to the end that all
Improvements conform to and harmonize with the existing surroundings, residences, landscaping and
structures. In its review of such plans, specifications and other materials and information, the Architectural
Review Committee may require that the applicant(s) reimburse the Committee for the actual expenses
incurred by the Committee in the review and approval process. Such amounts, if any, shall be levied in
addition to the Common Expense assessment against the Unit for which the request for Architectural
Review Committee approval was made, but shall be subject to the Association's lien for assessments and
subject to all other rights of the Association for the collection of such assessments, as more fully provided
in this Declaration.
3. Procedures. The Architectural Review Committee shall approve or disapprove all requests for
approval within forty-five (45) days after the complete submission of all plans, specifications, and other
materials and information which the Committee may require in conjunction therewith. If the Architectural
Review Committee fails to approve or disapprove any request within forty-five (45) days after the complete
submission of all plans, specifications, materials and other information with respect thereto, approval shall
not be required and this Article shall be deemed to have been fully complied with.
4. Vote. A majority vote of the Architectural Review Committee is required to approve a
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request for approval pursuant to this Article.
5. Records. The Architectural Review Committee shall maintain written records of all applications
submitted to it and all actions taken by it thereon, for a period of three (3) years after submission of such
application or the taking of such action, as applicable, and such records shall be available to Members for
inspection at reasonable hours of the business day.
6. Liability. The Architectural Review Committee and the members thereof, as well as any
representative of the Committee appointed to act on its behalf, shall not be liable in damages to any Person
submitting requests for approval or to any Unit Owner by reason of any action, failure to act, approval,
disapproval, or failure to approve or disapprove in regard to any matter within its jurisdiction hereunder.
7. Variance. The Architectural Review Committee may grant reasonable variances or adjustments
from any conditions and restrictions imposed by this Article or Article IX hereof, in order to overcome
practical difficulties or prevent unnecessary hardships arising by reason of the application of any such
conditions and restrictions. Such variances or adjustments shall be granted only in case the granting thereof
shall not be materially detrimental or injurious to the other property or improvements in the neighborhood
and shall not militate against the general intent and purpose hereof.
8. Waivers. The approval or consent of the Architectural Review Committee, any representative
thereof, or the Executive Board, to any application for architectural approval shall not be deemed to
constitute a waiver of any right to withhold or deny approval or consent by the Committee, any
representative thereof, or the Executive Board, as to any application or other matters whatsoever as to which
approval or consent may subsequently or additionally be required.
9. Other Required Approvals. In addition to obtaining the approval of the applicable governmental
agencies and entities, certain planned Improvements must have the prior approval of the Architectural
Committee provided for in that certain recorded Amended and Restated Declaration of Covenants,
Conditions and Restrictions for Battlement Mesa, as supplemented and amended. Hence, in addition to the
requirements of this Article, applicants for Architectural Review Committee approval must also comply
with the requirements of said Amended and Restated Declaration in order to obtain approval of the
Architectural Committee as provided therein. However, approval of Improvements by the Architectural
Committee is not a guaranty of approval by the Architectural Review Committee, or vice versa.
ARTICLE VI
INSURANCE
1. Insurance. The Association may maintain insurance in connection with parcels of real property
which the Association has an obligation to maintain, repair and/or reconstruct. The Association may
maintain the following types of insurance, to the extent that such insurance is reasonably available,
considering the availability, cost and risk coverage provided by such insurance, and the cost of said
coverage shall be paid by the Association as Common Expenses. Notwithstanding any of the specific
insurance requirements specified in this Article, the Association may also consider, in determining the types
and amount of insurance it needs to obtain, the then existing requirements of any of the Agencies with
respect to their insurance, guaranty, or purchase of Security Interests.
(a) A policy of property insurance covering all parcels of real property for which the Association
has the duty to repair and/or reconstruct, except for land, foundation, excavation and other matters normally
excluded from coverage, in an amount not less than necessary to comply with any co-insurance percentage
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stipulated in the insurance policy. Further, said policy shall contain a "Replacement Cost Endorsement"
providing that any claim will be settled on a full replacement cost basis without deduction for depreciation,
and include an "Inflation Guard Endorsement" and an "Agreed Amount Endorsement." The Association
may also purchase any or all of the following: a "Demolition Endorsement," an "Increased Cost of
Construction Endorsement," a "Contingent Liability from Operation of Building Laws Endorsement," a
"Vacancy Permit Endorsement" or the equivalent, and coverage on personal property owned by the
Association including fixtures and building service equipment, furnishings and supplies. Such insurance
as maintained by the Association pursuant to this subsection shall afford protection against at least the
following:
(1) loss or damage by fire and other perils normally covered by the standard extended
coverage endorsement, and
(2) such other risks as shall customarily be covered with respect to projects similar in
construction, location and use, including all perils normally covered by the standard "all risk"
endorsement, where such is available.
(b) A comprehensive policy of public liability insurance covering parcels of real property which
the Association has the obligation to maintain, repair and/or reconstruct, insuring the Association in an
amount not less than One Million Dollars (S1,000,000.00) covering bodily injury, including death to
persons, personal injury and property damage liability arising out of a single occurrence. Such coverage
shall include, without limitation, legal liability of the insureds for property damage, bodily injuries and
deaths of persons in connection with the operation, maintenance or use of all parcels of real property for
which the Association has the obligation to maintain, repair and/or reconstruct, legal liability arising out of
lawsuits related to employment contracts of the Association, and protection against liability for non -owned
and hired automobiles. Such coverage may also include, if applicable, comprehensive automobile liability
insurance, garage keepers' liability, liability for property of others, host liquor liability, water damage
liability, contractual liability, workmen's compensation insurance for employees of the Association, and
such other risks as shall customarily be required by private institutional mortgage investors with respect to
projects similar in construction, location and use. Such insurance shall insure the Executive Board,
Association, any managing agent, and their respective employees, agents and aII Persons acting as agents.
The Declarant shall be included as an additional insured in such Declarant's capacity as a Unit Owner and
member of the Executive Board. The Unit Owners shall also be included as additional insureds but only for
claims and liabilities arising in connection with the ownership, existence, use or management of the
Common Elements or other property insured by the Association from time to time. The insurance shall
cover claims of one or more insured parties against other insured parties.
(c) A policy providing comprehensive fidelity coverage or fidelity bonds to protect against
dishonest acts on the part of officers, directors, Unit Owners, trustees and employees of the Association
and/or any independent contractor employed by the Association for the purpose of managing the Common
Interest Community, in an amount at least equal to the estimated maximum of funds, including maintenance
reserves, in the custody of the Association at any given time, provided, however, that such fidelity coverage
or fidelity bonds shall not be in an amount less than two (2) months aggregate Common Expense
assessments on the Units, plus such reserve funds as calculated from the current budget of the Association.
The Association may carry fidelity insurance in amounts greater than required hereinabove and may require
any independent contractor employed for the purposes of managing the Common Interest Community to
carry more fidelity insurance coverage than required hereinabove. Such fidelity coverage or bonds shall
meet the following requirements:
(1) all such fidelity coverage or bonds shall name the Association as an obligee, and
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(2) such fidelity coverage or bonds shall contain waivers of any defense based upon the
exclusion of Persons who serve without compensation from any definition of "employee" or similar
expression.
In the event the Association has delegated some or all of its responsibility for the handling of funds
to a managing agent, the Association may require the managing agent to purchase, at its own expense, a
policy of fidelity insurance or bonds which fully complies with the provisions of this subparagraph (c).
(d) If any parcels of real property which the Association has an obligation to repair or reconstruct
are located within an area identified by the Federal Emergency Management Agency as having special
flood hazards, and flood insurance coverage on such parcels has been made available under the National
Flood Insurance Program, then such a policy of flood insurance on such parcels in an amount at least equal
to the lesser of-
(1) the maximum coverage available under the National Flood Insurance Program for all
buildings and other insurable property located within a designated flood hazard area; or
(2) one hundred percent (100%) Of current replacement cost of all buildings and other
insurable property located within a designated flood hazard area.
(e) In addition, the Association may obtain insurance against such other risks of a similar or
dissimilar nature as it shall deem appropriate, to the extent that such coverage is reasonably available,
including, but not limited to, personal liability insurance to protect directors and officers of the Association
from personal liability in relation to their duties and responsibilities in acting as directors and officers on
behalf of the Association.
2. Insurance on the Structures on Units. The Executive Board or its agent may, but shall not be
obligated to, obtain and maintain, to the extent that such insurance is reasonably available, considering the
availability, cost and risk coverage provided by such insurance, a policy of property insurance covering the
structure(s) located on each Unit, except for land, foundation, excavation and other items normally excluded
from coverage. Said policy shall contain a "Replacement Cost Endorsement" providing that any claim will
be settled on a full replacement cost basis without deduction for depreciation, an "Inflation Guard
Endorsement," an "Agreed Amount Endorsement," and may include other endorsement(s) as deemed
appropriate by the Executive Board from time to time. Such insurance as maintained by the Association
pursuant to this section shall afford protection against at least the following:
(a) loss or damage by fire and other perils normally covered by the standard extended coverage
endorsement; and
(b) such other risks as shall customarily be covered with respect to projects similar in construction,
location and use, including all perils normally covered by the standard "All Risk" endorsement,
where such is available.
3. General Provisions of Insurance Policies. All policies of insurance carried by the Association
shall be carried in blanket policy form naming the Association as insured, or its designee as trustee and
attorney -in -fact for all Unit Owners, and each Unit Owner shall be an insured person under such policies
with respect to liability arising out of any Unit Owner's membership in the Association. The policy or
policies shall contain a standard non- contributory Security Interest Holder's clause in favor of each Security
Interest Holder and a provision that it cannot be cancelled or materially altered by either the insured or the
insurance company until thirty (30) days' prior written notice thereof is given to the insured and each
Security Interest Holder, insurer or guarantor of a Security Interest. The Association shall furnish a certified
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copy or duplicate original of such policy or renewal thereof, with proof of premium payment and a
certificate identifying the interest of the Unit Owner in question, to any parry in interest, including Security
Interest Holders, upon request. All policies of insurance carried by the Association shall also contain
waivers of subrogation by the insurer against any Unit Owner or member of his household. All policies
shall contain waivers of any defense based on invalidity arising from any acts or neglect of a Unit Owner
where such Unit Owner is not under the control of the Association.
4. Deductibles. The Association may adopt and establish written non-discriminatory policies and
procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims
adjustment.
(a) To the extent the Association settles claims for damages, it shall have the authority to assess
negligent Unit Owners causing such loss or benefiting from such repair or restoration all deductibles paid
by the Association. In the event that more than any one (1) Unit is damaged by a loss, the Association, in
its reasonable discretion, may assess each Unit Owner a pro rata share of any deductible paid by the
Association.
(b) Any loss to any Unit or to any property which the Association has the duty to maintain, repair
and/or reconstruct, and which falls within the deductible portion of such policy, shall be borne by the Person
who is responsible for the repair and maintenance of the property which is damaged or destroyed. In the
event of a joint duty of repair and maintenance of the damaged or destroyed property, then the deductible
may be apportioned among the Persons sharing in such joint duty or may be partly or wholly borne by the
Association, at the election of the Executive Board. Notwithstanding the foregoing, after notice and hearing,
the Association may determine that a loss, either in the form of a deductible to be paid by the Association
or an uninsured loss, resulted from the act or negligence of a Unit Owner. Upon said determination by the
Association, any such loss or portion thereof may be assessed to the Unit Owner in question and the
Association may collect the amount from said Unit Owner in the same manner as any assessment.
5. Payment of Insurance Proceeds. Any loss covered by an insurance policy described in Section
1 of this Article must be adjusted with the Association, but the insurance proceeds for that loss shall be
payable to any insurance trustee designated for that purpose, or otherwise to the Association, and not to any
Security Interest Holder. The insurance trustee or the Association shall hold any insurance proceeds in trust
for the Association, Unit Owners and Security Interest Holders as their interests may appear. Subject to the
provisions of Section 1 of Article VII of this Declaration, the proceeds must be disbursed first for the repair
or restoration of the damaged property; and the Association, Unit Owners and Security Interest Holders 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 Common Interest Community is terminated.
6. Association Insurance as Primary Coverage. If at the time of any loss under any policy which
is in the name of the Association, there is other insurance in the name of any Unit Owner and such Unit
Owner's policy covers the same property or loss, or any portion thereof, which is covered by such
Association policy, such Association policy shall be primary insurance not contributing with any of such
other insurance. A Unit Owner shall be liable to the Association for the amount of any diminution of
insurance proceeds to the Association as a result of policies of insurance of a Unit Owner, and the
Association may collect the amount from said Unit Owner in the same manner as any assessment. Any
such Unit Owner's policy shall also contain waivers of subrogation.
7. Acce table Insurance Companies. Each hazard insurance policy purchased by the Association
must be written by a hazard insurance carrier which has a current rating by Besfs Insurance Reports of B
or better, or a financial rating of Class V provided it has a general policy holder's rating of at least A, and
is authorized by law to do business in the State of Colorado. The Association shall not obtain any policy
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where (a) under the terms of the insurance company's charter, bylaws, or policy, contributions or
assessments may be made against the mortgagor or mortgagee's designee, or (b) under the terms of the
carrier's charter, bylaws, or policy, loss payments are contingent upon action by the carrier's Board of
Directors, policy holders or members, or (c) the policy includes any limiting clauses (other than insurance
conditions) which could prevent mortgagees or any Unit Owner from collecting insurance proceeds.
8. Insurance to be Maintained by Unit Owners. An insurance policy issued to the Association does
not obviate the need for Unit Owners to obtain insurance for their own benefit. Insurance coverage on each
Unit and the Improvements thereon, if not carried by the Association in its discretion, and the furnishings
and other items of personal property belonging to a Unit Owner, and public liability insurance coverage on
each Unit, shall be the responsibility of the Unit Owner of such Unit. Unit Owners shall also be responsible
for obtaining any policies of title insurance required in connection with any sale of a Unit other than the
purchase by the initial Unit Owner from the Declarant.
9. Annual Review of Insurance Policies. All insurance policies carried by the Association shall be
reviewed at least annually by the Executive Board to ascertain that the coverage provided by such policies
adequately covers those risks insured by the Association. Prior to obtaining any policy of fire insurance or
renewal thereof, the Executive Board or the managing agent of the Association may obtain a written
appraisal from a duly qualified real estate or insurance appraiser, or other person knowledgeable as to
replacement costs, which appraiser shall reasonably estimate the full replacement value of the
Improvements to the insured for the purpose of determining the amount of insurance required pursuant to
the provisions of this Article. Any Security Interest Holder shall be furnished with a copy of such appraisal
upon request.
10. Notice of Cancellation. If the insurance described in Section 1 of this Article is not reasonably
available, or if any policy of such insurance is cancelled or not renewed without a replacement policy
therefor having been obtained, the Association promptly shall cause notice of that fact to be hand delivered,
or sent prepaid by United States mail, to all Unit Owners.
ARTICLE VII
DAMAGE OR DESTRUCTION
1. Damage or Destruction.
(a) Any portion of the Common Interest Community for which insurance is carried by the
Association under this Declaration, and which is damaged or destroyed, must be repaired or replaced
promptly by the Association unless:
(1) The Common Interest Community is terminated,
(2) Repair or replacement would be illegal under any state or local statute or ordinance
governing health or safety,
(3) Eighty percent (80%) of the Unit Owners, including every Unit Owner of a Unit that
will not be rebuilt, vote not to rebuild, or
(4) Prior to the conveyance of any Unit to a Person other than the Declarant, the holder of
a deed of trust or mortgage on the damaged portion of the Common Interest Community rightfully
demands all or a substantial part of the insurance proceeds.
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(b) The cost of repair or replacement that is covered by insurance carried by the Association, but
which is in excess of insurance proceeds and reserves, is a Common Expense. If the entire Common Interest
Community is not repaired or replaced, the insurance proceeds attributable thereto must be used to restore
the damaged area to a condition compatible with the remainder of the Common Interest Community and,
except to the extent that other Persons will be distributees, the remainder of the proceeds must be distributed
to all the Unit Owners or lien holders, as their interests may appear, in proportion to the Common Expense
Liability of all the Units. If the Unit Owners vote not to rebuild any Unit, that Unit's Allocated Interests
are automatically reallocated upon the vote as if the Unit had been condemned as provided in Article XI,
Section 11 hereof, and the Association promptly shall prepare, execute and record an amendment to this
Declaration reflecting such reallocations.
2. Units. Any damage to or destruction of any structure located on a Unit on which insurance is
not carried by the Association shall, except as hereafter provided, be promptly repaired and reconstructed
by the Unit Owner thereof using insurance proceeds and personal funds of such Unit Owner. "Repaired and
reconstructed," as used in this Section 2, shall mean restoring the structure to substantially the same
condition in which it existed immediately prior to such damage or destruction, including having the same
boundaries as before. However, if a residence located on a Unit shall be destroyed or so damaged that the
residence is no longer habitable, then the Unit Owner of such Unit shall, within a reasonable time not to
exceed 120 days after the event resulting in such damage or destruction, either commence and diligently
pursue repair or reconstruction of the residence or demolish the same. Demolition of a residence shall
include removal of any foundation slab, basement walls and floors, regrading of the Unit to a Ievel
condition, and the installation of such landscaping as may be required by the Architectural Review
Committee pursuant to a plan submitted to said Committee by the Unit Owner of said Unit. If the Unit
Owner of a Unit does not either commence repair, reconstruction or demolition activities within a
reasonable time, as provided above, and diligently pursue the same in conformance with the plans approved
by the Architectural Review Committee, then the Association may, in its reasonable discretion, after
providing the notice required in Article VIII, Section 2 hereof, enter upon the Unit for the purpose of
demolishing the residence and then landscape the Unit in conformance with approved plans. The cost
related to such demolition and landscaping shall be the personal obligation of the Unit Owner of the Unit
on which such work is performed and shall be subject to all the terms and provisions applicable to
assessments as provided in Article IV hereof, including without limitation, interest, late charges and lien
rights.
ARTICLE VIII
EXTERIOR MAINTENANCE
1. General.
(a) Maintenance, repair and replacement of Improvements Iocated on all Common Elements,
including without limitation the Limited Common Elements, and of any drainage structure or facilities, or
other public Improvements required by the local governmental entity as a condition of development of the
Common Interest Community or any part thereof, shall be the responsibility of the Association unless such
Improvements have been dedicated to and accepted by the local governmental entity for the purpose of
maintenance, repair or replacement or unless such maintenance, repair or replacement has been authorized
by law to be performed by a special district or other municipal or quasi -municipal entity.
(b) Except as provided in subsection (a) above, the maintenance, repair and replacement of each
Unit, and the improvements thereon, including, but not limited to, the interior thereof, shall be the
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responsibility of the Unit Owner of such Unit. The Association and each Unit Owner, and their agents and
contractors, are hereby granted an easement for the purpose of maintenance and repair of the Unit Owner's
Unit on, over, across, under and through any Unit upon reasonable notice to the Unit Owner thereof. Any
damage occurring to such Unit or the Improvements thereon in performing such repairs or maintenance
shall be the responsibility of the party performing or authorizing such repairs or maintenance.
2. Association's Right to Repair, Maintain, Restore and Demolish. In the event any Unit Owner
shall fail to perform his maintenance, repair and/or reconstruction obligations in any manner satisfactory to
the Executive Board, the Association may, if said failure continues for a thirty (30) day period after written
notice to said Unit Owner by the Executive Board, enter upon said Unit subsequent to the expiration of said
thirty (30) day time period to perform any or all of such maintenance, repair or restoration or, pursuant to
Article VII, Section 2 hereof, to demolish a residence. The cost of such maintenance, repair, reconstruction
and/or demolition shall be the personal obligation of the Unit Owner of the Unit on which such work is
performed, and shall be subject to all of the terms and provisions applicable to "assessments" as provided
in Article IV hereof, including, without limitation, interest, late charges and lien rights.
3. Access Easement. Each Unit Owner shall afford to the Association and the other Unit Owners,
and to their agents or employees, access through such Unit Owner's Unit reasonably necessary for
maintenance, repair and replacement of any Common Elements and any other property or Improvements
maintained, repaired or replaced by the Association. If damage is inflicted, or a strong likelihood exists that
it will be inflicted, on the Common Elements, any other property, or any Unit through which access is taken,
the Unit Owner responsible for the damage, or expense to avoid damage, or the Association if it is
responsible, is liable for the cost of prompt repair or the expense of avoidance. Further, each Unit shall be
subject to an easement in favor of the Association (including its agents, employees and contractors) for
performing maintenance, repair and/or reconstruction as provided in this Article during reasonable hours
after reasonable notice to the Unit Owners or occupants of any affected Unit, except that no such notice
shall be required in connection with maintenance of any landscaping, walks, or other exterior non -intrusive
maintenance, and except that in emergency situations entry upon a Unit may be made at any time provided
that the Unit Owner or occupants of each affected Unit shall be warned of impending emergency entry as
early as is reasonably possible.
4. Zero -Lot Line Maintenance Easement. Each Unit Owner with a building envelope abutting the
lot line ("Zero Lot Line") is hereby granted a nonexclusive maintenance easement over and across the
neighboring Lot on the zero -lot -line edge of the property three feet into said adjacent Lot ("Zero Lot Line
Maintenance Easement"). The Zero Lot Line Maintenance Easement may be utilized for access to, and
maintenance of, Improvements on such Unit Owner's property. Such Owner shall provide written notice
to the neighboring property at Ieast seven days prior to utilizing the Zero Lot Line Maintenance Easement.
The Unit Owner shall not otherwise occupy or utilize the Zero Lot Line Maintenance Easement, except that
roof projections of up to twelve (12") are permissible. All such roof projections must be' guttered, and
gutters must outlet onto the Unit Owner's own property. No sheds, lean-tos, or general storage facilities
may be placed in the Zero Lot Line Maintenance Easement, nor lean against a neighbor's structure. No
vegetation shall touch a neighbor's structure and irrigation for such vegetation will be no closer than P from
a neighbor's structure and will not overspray onto a neighbor's structure. Additionally, structure walls on
and adjacent to zero lot lines are to be constructed in accordance with one -hour wall and opening limitations
per the currently adopted building codes.
S. Unit Owner's Negligence. Notwithstanding anything to the contrary contained in this
Declaration, in the event that the need for maintenance, repair or reconstruction of the Common Elements,
any Unit, any other property, or any Improvements located thereon, is caused by the willful or negligent
act or omission of any Unit Owner, or by the willful or negligent act or omission of any member of such
Unit Owner's family or by a guest or invitee of such Unit Owner, the cost of such repair,. maintenance,
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reconstruction or expense to avoid such damage shall be the personal obligation of such Unit Owner to the
extent that said Unit Owner would be liable for the acts of such Persons under the laws of the State of
Colorado, and any costs, expenses and fees incurred by the Association for such maintenance, repair or
reconstruction shall be added to the assessment to which such Unit Owner's Unit is subject and shall be
subject to all of the terms and provisions of Article IV of this Declaration. A determination of the
negligence or willful act or omission of any Unit Owner, or any member of a Unit Owner's family or a
guest or invitee of any Unit Owner, and the amount of the Unit Owner's liability therefor, shall be
determined by the Association at a hearing after notice to the Unit Owner, provided that any such
determination which assigns liability to any Unit Owner pursuant to the terms of this Section may be
appealed by said Unit Owner to a court of law.
6. Expenses for PropeM Subject to Development Rights In addition to the liability that a Declarant
as a Unit Owner has under the Act, the Declarant alone is liable for all expenses in connection with real
estate subject to Development Rights until expiration of all Development Rights with respect to such real
estate. No other Unit Owner and no other portion of the Common Interest Community is subject to a claim
for payment of those expenses. Any income or proceeds from real estate subject to Development Rights
inures to the Declarant.
ARTICLE IX
RESTRICTIONS
1. General Plan. It is the intention of the Declarant to establish and impose a general plan for the
improvement, development, use and occupancy of the Units, all in order to enhance the value, desirability,
and attractiveness of the Units and subserve and promote the sale thereof.
2. Restrictions Imposed. This Common Interest Community is subject to the recorded easements,
licenses and other matters listed on Exhibit C attached hereto and incorporated herein by this reference. In
addition, the Declarant declares that all of the Units shall be held and shall henceforth be sold, conveyed,
used, improved, occupied, owned, resided upon and hypothecated, subject to the following provisions,
conditions, limitations, restrictions, agreements and covenants, as well as those contained elsewhere in this
Declaration.
3. Residential Use. Subject to Section 4 of this Article IX, Units shall be used for residential use
only, including uses which are customarily incident thereto, and shall not be used at any time for business,
commercial or professional purposes, provided, however, that a Unit Owner may use his Unit for
professional or home occupation(s) so long as the applicable zoning permits such use, there is no external
evidence thereof, and no unreasonable inconvenience to other residents of the Units is created thereby.
Confusing language as to what is and isn't allowed.
4. Declarant's Use. Notwithstanding anything to the contrary contained in this Declaration, it shall
be expressly permissible and proper for Declarant, its employees, agents, and contractors, to perform such
reasonable activities, and to maintain upon portions of the Units such facilities as Declarant deems
reasonably necessary or incidental to the construction and sale of Units, and development and construction
of Improvements, specifically including, without limiting the generality of the foregoing, maintaining
management offices, signs, model units and sales offices, in such numbers, of such sizes, and at such
locations as it determines in its reasonable discretion. However, Declarant shall not perform any activity or
maintain any facility on any portion of the Units in such a way as to unreasonably interfere with or disturb
any Unit Owner, or to unreasonably interfere with the use, enjoyment or access of such Unit Owner, his
family members, guests or invitees of and to his Unit and to a public right -of --way.
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5. Household Pets.
(a) No animals, livestock, birds, poultry, or insects of any kind, shall be raised, bred, kept or boarded
in or on any Unit, provided, however, that Unit Owners may keep a reasonable number of dogs, cats, or
other domestic animals which are bona fide household pets, so long as such pets are not kept for any
commercial purpose and are not kept in such number or in such manner as to violate any zoning ordinance
or other governmental requirements or to create a nuisance. Incessantly barking dogs, whether inside or
outside of a dwelling unit, shall be considered a nuisance and shall not be tolerated.
(b) When outside on any Unit or Common Elements, all household pets shall be restrained on a
leash and attended to by the Unit Owner and shall not be permitted to run freely. Pet kennels, pet runs, pet
houses, chain or cable tethers, and other similar enclosures or restraining devices, shall not be permitted on
any Common Elements. Unit Owners shall be responsible to immediately clean up pet litter behind their
pets.
(c) The Association shall have, and is hereby given, the right and authority to determine in its sole
discretion that dogs, cats and other household pets are being kept for commercial purposes or are being kept
in such number or in such manner as to be unreasonable or to create a nuisance, or that a Unit Owner is
otherwise in violation of the provisions of this Section, and to take such action or actions as the Association
deems reasonably necessary to correct the violation. A Unit Owner's right to keep household pets shall be
coupled with the responsibility to pay for any damage caused by such pets, as well as any costs incurred by
the Association as a result of such pets, and any costs and damages shall be subject to all of the Association's
rights with respect to the collection and enforcement of assessments as provided in Article IV hereof.
6. Construction.
(a) All construction shall be new construction and no previously erected buildings, or other
structures shall be constructed at another Iocation and then moved and set upon any Unit, except for pre -
assembled housing components approved in advance by the Architectural Review Committee.
(b) No tent, shack, temporary structure or temporary building shall be placed upon any Unit or the
Common Elements, except with the prior, discretionary written consent of the Architectural
Review Committee.
(c) Any building or structure on a Residential Site, other than the Dwelling Unit and garage, must
reside behind the yard fence and shall not exceed the height eight (8) feet in height above the adjacent grade
and must have roofing and siding to match the main residence.
(d) The floor area of any single-family detached dwelling unit, exclusive of open porches and
garages, shall not be less than 1,000 square feet, outside measurement; and each dwelling unit shall have
an attached, enclosed garage not less than 15 feet wide (1-1/2 car capacity) nor more than 26 feet wide (2
car capacity). The maximum height of any single-family detached dwelling unit and garage shall not exceed
32 feet as measured vertically from the lowest finish grade elevation to the highest roof ridgeline elevation
of the structure.
(e) The work of constructing, altering, or remodeling any structure or other Improvements shall be
prosecuted diligently from commencement until completion.
(f) All structures and any allowed out -buildings or storage buildings erected upon any Unit shall be
located within the building envelopes or setback lines shown on the plat of the subdivision.
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7. No Unsightliness. There shall be no outdoor storage ofunsightly conditions, structures, facilities,
equipment or objects. Unsightly items, including wood piles, trash containers, snow removal equipment
and garden or maintenance equipment, shall be enclosed within the dwelling unit or attached garage and
screened from public view, except when actually in use.
8. Miscellaneous Improvements.
(a) No signs, posters, billboards, advertising devices or displays of any kind shall be erected, placed,
permitted, or maintained on any Unit other than a name plate of the occupant and a street number, and
except for a "For Sale," "Open House" or "For Rent" sign of not more than five (5) square feet with the
prior written approval of the Architectural Review Committee. Notwithstanding the foregoing, signs,
posters, billboards, advertising devices or displays used by the Declarant in connection with the sale or
rental of Units, or otherwise in connection with development of or construction in the Common Interest
Community, shall be permissible, provided that such use shall not interfere with the Unit Owners' use and
enjoyment of their Units or with their ingress or egress from a public way to their Unit.
(b) No clothes lines, chain -linked (or other) dog runs, drying yards, service yards, wood piles or
storage areas shall be so located on any Unit as to be visible from a street or from any other Unit. Without
limiting the generality of the foregoing, the outdoor drying of clothes in public view is prohibited.
(c) No types of refrigerating, cooling or heating apparatus shall be permitted on a roof, except roof -
mounted evaporative coolers, and no types of refrigerating, cooling or heating apparatus shall be permitted
elsewhere on a Unit, except when appropriately screened and approved in advance by the Architectural
Review Committee.
(d) No exterior radio antenna, television antenna, or other antenna, satellite dish, or audio or visual
reception device of any type shall be placed, erected or maintained on any Unit, except inside a residence
or otherwise concealed from view; provided, however, that any such devices may be erected or installed by
the Declarant during its sales or construction in the Common Interest Community.
(e) No fences shall be constructed, installed, erected or maintained on any Unit, except pedestrian
control and decorative landscape fencing by the Declarant or the Association, and except equipment or
safety control fencing by the Declarant or the Association. Wire fences are prohibited and all fencing along
the wash shall comply with CPW "Fencing with Wildlife in Mind" guidelines.
h salc w.state.co.us/Documents/LandWater/PrivateLandPro ams/Fencin WithWildlifeInMind. d
9. Vehicular Parking, Storage and Repairs.
(a) No trailer, camping trailer, boat or boat accessories, snowmobiles, truck larger than one -ton
rated capacity, recreational vehicle or equipment or commercial vehicle, may be parked or stored anywhere
one a unit, Common Elements, or dedicated street right-of-way, except when fully screened from public
view in the side -yard behind fencing.
(b) No abandoned or inoperable vehicles of any kind shall be stored or parked anywhere on a Unit,
Common Elements, or dedicated street right-of-way, except when fully enclosed and screened from public
view within the attached garage. An "abandoned or inoperable vehicle" shall be defined as any automobile,
truck, motorcycle, van, trailer, camper, recreational vehicle or other device for carrying passengers, goods
or equipment, which has not been operated under its own propulsion for a period of one (1) week or longer;
provided, however, that any vehicle belonging to a Unit Owner which is otherwise permitted will not be
deemed to be abandoned while the Unit Owner is out of town or ill. If the Association determines that a
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vehicle is abandoned or inoperable, a written notice calling for its removal shall be delivered to the owner
of the vehicle, if ownership can reasonably be ascertained, or shall be placed in a conspicuous place on the
vehicle if ownership cannot reasonably be ascertained. If the abandoned or inoperable vehicle is not
removed within seventy-two (72) hours after such notice is delivered or posted, the Association shall have
the right to remove and store the vehicle at the sole expense of its owner, and any Unit Owner who is
determined (after notice and hearing before the Executive Board) to be responsible for the vehicle shall be
subject to assessment therefor.
(c) No activity such as, but not limited to, maintenance, repair, rebuilding, dismantling, painting or
servicing of any kind of vehicle shall take place anywhere on a Unit, Common Elements, or dedicated street
right-of-way, except when fully enclosed and screened from public view within the attached garage. This
restriction shall not be deemed to prohibit washing and polishing of vehicles on driveways.
(d) There shall be no on -street parking during the period of November 1 through March 31 annually,
during the hours of 11:00pm to 7:00am daily on the internal subdivision streets of Luna Lane and Crescent
Court, to facilitate in -winter maintenance services. The Association shall have the right to remove and store
any vehicle parking in violation of the foregoing at the sole expense of its owner, and any Unit Owner who
is determined (after hearing before the Executive Board) to be responsible for the vehicle shall be subject
to assessment therefor.
10. Nuisances. No nuisance shall be permitted on any Unit nor any use, activity or practice which
is a source of annoyance or embarrassment to, or which offends or disturbs the residents of any Unit or
which interferes with the peaceful enjoyment or possession and proper use of any Unit, or any portion
thereof, by its residents. As used herein, the term "nuisance" shall not include any activities of Declarant
which are reasonably necessary to the development and construction of, and sales activities in, the Common
Interest Community; provided, however that such activities of the Declarant shall not unreasonably interfere
with any Unit Owner's use and enjoyment of his Unit, or with any Unit Owner's ingress and egress to or
from his Unit and a public way. No noxious or offensive activity shall be carried on upon any Unit nor
shall anything be done or placed on any Unit which is or may become a nuisance or cause embarrassment,
disturbance or annoyance to others. Further, no immoral, improper, offensive or unlawful use shall be
permitted or made of any Unit or any portion thereof. All valid laws, ordinances and regulations of all
governmental bodies having jurisdiction over the Units, or any portion thereof, shall be observed.
11. Units Not to be Subdivided. No Unit shall be subdivided except for the purpose of combining
portions with an adjoining Unit provided that no additional building site is created thereby. Not less than
one entire Unit, as conveyed, shall be used as a building site.
12. No Hazardous Activities. No activities shall be conducted in the Common Interest Community,
or within Improvements constructed thereon which are or might be unsafe or hazardous to any person or
property. Without limiting the generality of the foregoing, no firearms shall be discharged in the Common
Interest Community and no open fires shall be lighted or permitted in the Common Interest Community
except in a contained firepit, chiminea, or barbecue unit while attended and/or in use for cooking purposes
or within an interior fireplace, or except such campfires or picnic fires on property which may be designated
for such use by the Association.
13. No Annoying Li t Sounds or Odors. No light shall be emitted from any Unit which is
unreasonably bright or causes unreasonable glare; no sound shall be emitted from any Unit which is
unreasonably loud or annoying; and no odor shall be permitted from any Unit which is noxious or offensive
to others.
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14. Restrictions on Trash and Materials. No refuse, garbage, trash, lumber, grass, shrubs or tree
clippings, plant waste, metal, bulk materials, scrap or debris of any kind shall be kept, stored, or allowed to
accumulate in the Common Interest Community except when enclosed in a residence or attached garage,
except that any container with such materials may be placed outside at proper times for garbage or trash
pickup.
15. Minor Violations of Setback Restrictions. If upon the erection of any structure, it is disclosed
by survey that a minor violation or infringement of setback lines has occurred, such violation or
infringement shall be deemed waived by the Unit Owners of each Unit immediately adjoining the structure
which is in violation of the setback, and such waiver shall be binding upon all other Unit Owners. However,
nothing contained in this Section shall prevent the prosecution of a suit for any other violation of the
restrictions, covenants, or other provisions contained in this Declaration. A "minor violation," for the
purpose of this Section, is a violation of not more than one (1) foot beyond the required setback lines or
Unit lines. This provision shall apply only to the original structures and shall not be applicable to any
alterations or repairs to, or replacements of, any of such structures.
16. Rules and Regulations. Rules and regulations concerning and governing the Common
Elements, Units and/or this Common Interest Community may be adopted, amended or repealed from time
to time by the Executive Board, and the Executive Board may establish and enforce penalties for the
infraction thereof, including, without limitation, the levying and collecting of fines for the violation of any
of such rules and regulations.
17. Maintenance of Propg1ty, Hazardous Materials or Chemicals. No property shall be permitted
to fall into disrepair and all property, including Units, Improvements and landscaping, shall be kept and
maintained in a clean, safe, attractive and sightly condition and in good repair. No hazardous materials or
chemicals shall at any time be located, kept or stored in, on or at any Unit except such as may be contained
in household products normally kept at homes for use of the residents thereof and in such limited quantities
so as to not constitute a hazard or danger to person or property.
18. Leases. The term "lease," as used herein, shall include any agreement for the leasing or rental
of a Unit, or any portion thereof, and shall specifically include, without limitation, month- to -month rentals
and subleases. A Unit, or any portion thereof, may only be leased under the following conditions:
(a) All leases shall be in writing and a copy of the lease delivered to the Executive Board or the
Association's managing agent, if any, and
(b) All leases shall provide that the terms of the lease and lessee's occupancy of the leased premises
shall be subject in all respects to the provisions of this Declaration, and the Articles of Incorporation,
Bylaws and rules and regulations of the Association, and that any failure by the lessee to comply with any
of the aforesaid documents, in any respect, shall be a default under the lease, and
(c) No lease shall be for less than thirty (30) days.
19. Management A eements and Other Contracts. Any agreement for professional management
of the Association's business or other contract providing for the services of the Declarant shall have a
maximum term of two (2) years and any such agreement shall provide for termination by either party
thereto, with or without cause and without payment of a termination fee, upon not more than ninety (90)
days' prior written notice, provided, however, that any such management agreement(s) entered into by the
Association with a manager or managing agent prior to termination of the Period of Declarant control'shall
be subject to review and approval by HUD or VA, if at the time such agreement is entered into, HUD has
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insurance or VA has a guarantee(s) on one or more Security Interests, and shall terminate absolutely, in
any event, no later than thirty (30) days after termination of the Period of Declarant Control.
20. Maintenance of Grade and Drainage, Easements for Drainage and Utilities.
(a) Each Unit Owner shall maintain the grading upon his Unit, and the Association shall maintain
the grading upon the Common Elements, at the slope and pitch fixed by the final grading thereof, including
landscaping and maintenance of the slopes. Each Unit Owner and the Association agree, for themselves
and their successors and assigns, that they will not in any way interfere with the established drainage pattern
over any such real property, from adjoining or other real property. In the event that it is necessary or
desirable to change the established drainage over any Unit or Common Elements, then the party responsible
for the maintenance of such real property shall submit a plan to the Architectural Review Committee for its
review and approval, in accordance with the provisions of Article V of this Declaration. For purposes of
this Section, "established drainage" is defined as the drainage which exists at the time final grading of a
Unit is completed.
(b) Easements for the installation and maintenance of utilities, drainage facilities, public or private
improvements and access thereto are reserved as shown on the recorded plats affecting the Units and any
amendments to such plats or as established by any other instrument of recordAs more fully provided above
in this Section, no Improvements shall be placed or permitted to remain on any Unit nor shall any change
in grading be permitted to exist which may change the direction of flow or obstruct or retard the flow of
water through channels or swales within such rear and side yard drainage easements. Declarant reserves to
itself and to the Association the right to enter in and upon each five-foot rear and side yard drainage
easements and at any time to construct, repair, replace or change drainage structures or to perform such
grading, drainage or corrective work as Declarant or the Association may deem necessary or desirable in
their sole discretion from time to time.
(c) Each Unit will be required to construct and maintain the three (3) foot drainage and maintenance
easement, as shown on the Halfmoon Village Subdivision Final Plat, in such a manner as to direct
stormwater and drainage runoff away from the downstream neighboring property by use of swale,
infiltration system or other. This condition is to be kept and maintained by all future Unit owners and future
buyer's of Unit.
21. Use of Common Elements. An easement is hereby granted to the Declarant through the
Common Elements as may be reasonably necessary for the purpose of discharging any of Declarants
obligations or exercising any Special Declarant Rights. Subject to the immediately preceding sentence:
(a) No use shall be made of the Common Elements which will in any manner violate the statutes,
rules, or regulations of any governmental authority having jurisdiction over the Common Elements.
(b) No Unit Owner shall engage in any activity which will temporarily or permanently deny free
access to any part of the Common EIements to all Members, nor shall any Unit Owner place any structure
whatsoever upon the Common Elements.
(c) The use of the Common Elements shall be subject to such rules and regulations as may be
adopted from time to time by the Executive Board.
(d) No use shall ever be made of the Common Elements which will deny ingress or egress to those
Unit Owners having access to their Units only over Common Elements, and the right of ingress and egress
to said Units is hereby expressly granted.
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22. Easement for Encroachments. To the extent that any Unit or Common Element encroaches on
any other Unit or Common Element, a valid easement for the encroachment exists. The easement does not
relieve a Unit Owner of liability in case of willful misconduct nor relieve a Declarant or any other Person
of liability for failure to adhere to the plats and maps.
23. Exterior Ornamentation. Personal exterior ornamentation of the Units is not permitted, with the
exception of state and national flags. However, normal and customary holiday decorations which are
temporarily installed for no more than thirty (30) days, and live potted plantings on Units, are exempt from
the submittal requirement herein.
ARTICLE X
PROPERTY RIGHTS IN THE COMMON ELEMENTS
1. Unit Owners' Easements. Subject to the provisions of this Article X, every Unit Owner shall
have a non-exclusive right and easement for the purpose of access to their Units and for use for all other
purposes, in and to the Common Elements, other than the Limited Common Elements, and such easement
shall be appurtenant to and shall pass with the title to every Unit.
2. Extent of Unit Owners' Easements. The rights and casements created hereby shall be subject to
the following:
(a) The right of the Association to borrow money for the purpose of improving the Common
Elements and to mortgage said property as security for any such loan; provided, however, that the
Association may not subject any portion of the Common Elements to a Security Interest unless such is
approved by Members casting at least eighty percent (80%) of the votes in the Association, including eighty
percent (80%) of the votes allocated to Units not owned by the Declarant, and
(b) The right of the Association to take such steps as are reasonably necessary to protect the
Common Elements against foreclosure; and
(c) The right of the Association to promulgate and publish rules and regulations with which each
Member shall strictly comply, including, but not limited to, the right of the Association to regulate and/or
restrict vehicular parking and Improvements; and
(d) The right of the Association to suspend the voting rights of a Member for any period during
which any assessment against his Unit remains unpaid and, for a period not to exceed sixty (60) days, for
any infraction of the Bylaws of the Association or the Association's rules and regulations; and
(e) The right of the Association to dedicate or transfer all or any part of the Common Elements
owned by the Association to any public agency, authority, or utility for such purposes and subject to such
conditions as may be agreed to by the Members, provided that no such dedication or transfer shall be
effective unless first approved by the Members entitled to cast at least eighty percent (80%) of the votes in
the Association, including eighty percent (80%) of the votes allocated to Units not owned by the Declarant,
and unless written notice of the proposed agreement and the proposed dedication or transfer is sent to every
Member at least thirty (30) days in advance of any action taken. Notwithstanding the foregoing, the granting
of permits, licenses and easements for public utilities, roads or for other purposes reasonably necessary or
useful for the proper maintenance or operation of the Common Interest Community shall not be deemed a
transfer within the meaning of this subsection (e), and
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(f) The right of the Association, through its Executive Board, to enter into, make, perform or enforce
any contracts, leases, agreements, licenses, easements and rights -of -way, for the use of real property or
Improvements by Unit Owners, other Persons, their family members, tenants, guests and invitees, for any
purpose(s) the Executive Board may deem to be useful, beneficial or otherwise appropriate; and
(g) The right of the Association to close or limit the use of the Common Elements while
maintaining, repairing and making replacements in the Common Elements.
3. Use of Common Elements and Limited Common Elements.
(a) The Common Elements, except the Limited Common Elements, shall be available to all Unit
Owners, their family members and guests, for their general use and benefit involving activities such as
walking, hiking, jogging, bicycling, socializing, picnicking, family outings, photography, etc. which do not
adversely impact general use of the Common Elements by all Unit Owners. Unit Owners shall not be
permitted to construct any structures or place any permanent improvements upon the Common Elements,
or to enclose any portion of the Common Elements.
(b) The Limited Common Elements shall be available for the exclusive use of those Unit Owners,
their family members and guests, to whose Unit the subject Limited Common Element is appurtenant. The
Limited Common Elements in the Common Interest Community consist of certain driveways and walks, as
described in Article I, Section 15 hereof.
4. Delegation of Use. Any Unit Owner may delegate his rights of use of and access over the
Common Elements to the members of his family, his tenants, or contract purchasers who reside on his Unit.
5. Pa ent of Taxes or Insurance by Security Interest Holders. Security Interest Holders shall have
the right, jointly or singly, to pay taxes or other charges or assessments which are in default and which may
or have become a lien against the Common Elements and may pay overdue premiums on hazard insurance
policies or secure new hazard insurance coverage on the lapse of a policy for the Common Elements, and
any Security Interest Holders making any such payments shall be owed immediate reimbursement therefor
from the Association.
6. Conveyance or Encumbrance of Common Elements.
(a) Portions of the Common Elements may be conveyed or subjected to a Security Interest by the
Association only if Persons entitled to cast at least eighty percent (80%) of the votes in the Association,
including eighty percent (80%) of the votes allocated to Units not owned by a Declarant, agree to that
action.
(b) An agreement to convey Common Elements or subject them to a Security Interest must be
evidenced by the execution of an agreement, or ratification thereof, in the same manner as a deed, by the
requisite number of Unit Owners. The agreement must specify a date after which the agreement will be
void unless recorded before that date. The agreement and all ratifications thereof must be recorded in every
county in which a portion of the Common Interest Community is situated and is effective only upon
recordation.
(c) The Association, on behalf of all Unit Owners, may contract to convey an interest in the
Common Interest Community pursuant to subsection (a) of this section, but the contract is not enforceable
against the Association until approved, executed and ratified. Thereafter, the Association has all powers
necessary and appropriate to effect the conveyance or encumbrance, including the power to execute deeds
or other instruments.
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(d) Unless in compliance with this Section, any purported conveyance, encumbrance, judicial sale
or other transfer of Common Elements is void.
(e) A conveyance or encumbrance of Common Elements pursuant to this Section shall not deprive
any Unit of its rights of ingress and egress to the Unit and support of the Unit.
(f) A conveyance or encumbrance of Common Elements pursuant to this section does not affect the
priority or validity of preexisting encumbrances.
ARTICLE XI
GENERAL PROVISIONS
1, Enforcement. Enforcement of the covenants, conditions, restrictions, easements, reservations,
rights -of -way, liens, charges and other provisions contained in this Declaration, the Articles or
Incorporation, Bylaws or rules and regulations of the Association, as amended, may be by any proceeding
at law or in equity against any Person (including, without limitation, the Association) violating or
attempting to violate any such provision. The Association and any aggrieved Unit Owner shall have the
right to institute, maintain and prosecute any such proceedings, and the Association shall further have the
right to levy and collect fines for the violation of any provision of any of the aforesaid documents. In any
action instituted or maintained under this section, the prevailing party shall be entitled to recover its costs
and reasonable attorneys' fees incurred pursuant thereto, as well as any and all other sums awarded by the
Court. Failure by the Association or any Unit Owner to enforce any covenant, restriction or other provision
herein contained, or any other provision of any of the aforesaid documents, shall in no event be deemed a
waiver of the right to do so thereafter.
2. Severability. All provisions of the Declaration, the Articles of Incorporation and Bylaws of the
Association are severable. Invalidation of any of the provisions of any such documents, by judgment, court
order or otherwise, shall in no way affect or limit any other provisions which shall remain in full force and
effect.
3. Conflict of Provisions. Except to the extent that any provision of this Declaration is inconsistent
with the Act, in case of any conflict between this Declaration, the Articles of Incorporation or Bylaws of
the Association, this Declaration shall control. In case of any conflict between the Articles of Incorporation
and the Bylaws of the Association, the Articles of Incorporation shall control.
4. Duration, Revocation, and Amendment.
(a) Each and every provision of this Declaration shall run with and bind the land for a term of ten
(10) years from the date of recording of this Declaration, after which time this Declaration shall be
automatically extended for successive periods of ten (10) years each. Except as provided in subsection (d)
of this Section 5 or in Section 4 of this Article XI, this Declaration may be amended during the first twenty
(20) year period, and during subsequent extensions thereof, by a vote or agreement of Unit Owners of Units
to which at least sixty-seven percent (67%) of the votes in the Association are allocated.
(b) No action to challenge the validity of an amendment adopted by the Association pursuant to
this Section may be brought more than one (1) year after the amendment is recorded.
(c) Every amendment to the Declaration must be recorded in Garfield County, Colorado, and is
effective only upon recordation.
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(e) Amendments to the Declaration that are required by this Declaration to be recorded by the
Association may be prepared, executed, recorded, and certified on behalf of the Association by any officer
of the Association designated for that purpose or, in the absence or designation, by the president of the
Association.
5. Registration of Mailing Address. Each Unit Owner and each Security Interest Holder, insurer
or guarantor of a Security Interest shall register his mailing address with the Association, and except for
annual statements and other routine notices, all other notices or demands intended to be served upon a Unit
Owner, or upon a Security Interest Holder, insurer or guarantor of a Security Interest, shall be sent by either
registered or certified mail, postage prepaid, addressed in the name of such Person at such registered mailing
address. However, if any Unit Owner fails to notify the Association of a registered address, then any notice
or demand may be delivered or sent, as aforesaid, to such Unit Owner at the address of such Unit Owner's
Unit. All notices, demands, or other notices intended to be served upon the Executive Board or the
Association shall be sent by registered or certified mail, postage prepaid, c/o HaIfinoon Village
Homeowners Association, Inc., P.O. Box 300, Battlement Mesa, CO 81635, until such address is changed
by the Association.
6. HUD or VA Approval. During the Period of Declarant Control, the following actions shall
require the prior approval of HUD or VA if, at the time any such action is taken, HUD has insurance or VA
has a guarantee(s) on one or more Security Interests: amendment of this Declaration, termination of this
Common Interest Community, or merger or consolidation of the Association.
7. Description of Units. A description of a Unit may set forth the name of the Common Interest
Community, the recording data for the Declaration, the county in which the Common Interest Community
is located, and the identifying number of the Unit. Such a description is a legally sufficient description of
that Unit and all rights, obligations and interests appurtenant to that Unit which were created by the
Declaration or Bylaws of the Association. It shall not be necessary to use the term "unit" as a part of a
legally sufficient description of a Unit.
8. Termination of Common Interest Communi
(a) Except in the case of a taking of aII the Units by eminent domain, a Common Interest
Community may be terminated only by agreement of Unit Owners of Units to which at least sixty-seven
percent (67%) of the votes in the Association are allocated.
(b) An agreement of Unit Owners to terminate must be evidenced by their execution of a
termination agreement or ratifications thereof in the same manner as a deed, by the requisite number of
Unit Owners. The termination agreement must specify a date after which the agreement will be void unless
it is recorded before that date. A termination agreement and all ratifications thereof must be recorded in
every county in which a portion of the Common Interest Community is situated and is effective only upon
recordation.
(c) Subject to the provisions of a termination agreement described in this Section, the Association,
on behalf of the Unit Owners, may contract for the sale of real estate in a Common Interest Community
following termination, but the contract is not binding on the Unit Owners until approved pursuant to this
Section. If any real estate is to be sold following termination, title to that real estate, upon termination, vests
in the Association as trustee for the holders of all interests in the Units. Thereafter, the Association has all
the powers necessary and appropriate to effect the sale. Until the sale has been concluded and the proceeds
thereof distributed, the Association continues in existence with all the powers it had before termination.
Proceeds of the sale must be distributed to Unit Owners and lien holders as their interests may appear.
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Unless otherwise specified in the termination agreement, as long as the Association holds title to the real
estate, each Unit Owner and the Unit Owner's successors in interest have an exclusive right to occupancy
of the portion of the real estate that formerly constituted the Unit. During the period of that occupancy, each
Unit Owner and the Unit Owner's successors in interest remain liable for all assessments and other
obligations imposed on Unit Owners by this Article or the Declaration.
(d) Following termination of the Common Interest Community, the proceeds of any sale of real
estate, together with the assets of the Association, are held by the Association as trustee for Unit Owners
and holders of liens on the Units, as their interests may appear.
(e) Creditors of the Association holding liens on the Units, which were perfected as a result of a
judgment before termination, may enforce those liens in the same manner as any lien holder. All other
creditors of the Association are to be treated as if they had perfected liens on the Units immediately before
termination.
(f) The respective interests of Unit Owners referred to in subsections (c), (d) and (e) of this Section
9 are as follows:
(1) Except as provided in paragraph (2) of this subsection (f), the respective interests of
Unit Owners are the fair market values of their Units and Allocated Interests immediately before
the termination, as determined by one or more independent appraisers selected by the Association.
The decision of the independent appraisers shall be distributed to the Unit Owners and becomes
final unless disapproved within thirty (30) days after distribution by Unit Owners of Units to which
twenty-five percent (25%) of the votes in the Association are allocated. The proportion of any Unit
Owner's interest to that of all Unit Owners is determined by dividing the fair market value of that
Unit Owner's Unit and its Allocated Interests by the total fair market values of all the Units and
their Allocated Interests.
(2) If any Unit or any limited Common EIement is destroyed, to the extent that an appraisal
of the fair market value thereof prior to destruction cannot be made, the interests of all Unit Owners
are their respective Common Expense Liability immediately before the termination.
(g) Except as provided in subsection (h) of this Section, foreclosure or enforcement of a lien or
encumbrance against the entire Common Interest Community does not terminate, of itself, the Common
Interest Community. Foreclosure or enforcement of a lien or encumbrance against a portion of the Common
Interest Community other than withdrawable real estate does not withdraw that portion from the Common
Interest Community. Foreclosure or enforcement of a lien or encumbrance against withdrawable real estate
does not withdraw, of itself, that real estate from the Common Interest Community, but the Person taking
title thereto may require from the Association, upon request, an amendment to the Declaration excluding
the real estate from the Common Interest Community prepared, executed and recorded by the Association.
(h) If a lien or encumbrance against a portion of the real estate comprising the Common Interest
Community has priority over the Declaration and the lien or encumbrance has not been partially released,
the parties foreclosing the lien or encumbrance, upon foreclosure, may record an instrument excluding the
real estate subject to that lien or encumbrance from the Common Interest Community. The Executive Board
shall reallocate interests as if the foreclosed sections were taken by eminent domain by an amendment to
the Declaration prepared, executed and recorded by the Association.
9. Transfer of Special Declarant Rights. A Special Declarant Right created or reserved under this
Declaration may be transferred only by an instrument evidencing the transfer recorded in Garfield County,
Colorado. The instrument is not effective unless executed by the transferee.
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10. Eminent Domain.
(a) If a Unit is acquired by eminent domain or part of a Unit is acquired by eminent domain leaving
the Unit Owner with a remnant which may not practically or lawfully be used for any purpose permitted by
this Declaration, the award must include compensation to the Unit Owner for that Unit and its Allocated
Interests whether or not any Common Elements are acquired. Upon acquisition, unless the decree otherwise
provides, that Unifs Allocated Interests are automatically reallocated to the remaining Units in proportion
to the respective Allocated Interests of those Units before the taking. Any remnant of a Unit remaining after
part of a Unit is taken under this subsection (a) is thereafter Common Elements.
(b) Except as provided in subsection (a) of this section, if part of a Unit is acquired by eminent
domain, the award must compensate the Unit Owner for the reduction in value of the Unit and its interest
in the Common Elements whether or not any Common Elements are acquired. Upon acquisition, unless the
decree otherwise provides:
(1) That Unit's Allocated Interests are reduced in proportion to the reduction in the
size of the Unit or on any other basis specified in this Declaration; and
(2) The portion of Allocated Interests divested from the partially acquired Unit is
automatically reallocated to that Unit and to the remaining Units in proportion to the
respective interests of those Units before the taking, with the partially acquired Unit
participating in the reallocation on the basis of its reduced Allocated Interests.
(c) If part of the Common Elements is acquired by eminent domain, that portion of any award
attributable to the Common Elements taken must be paid to the Association. For the purposes of acquisition
of a part of the Common Elements, service of process on the Association shall constitute sufficient notice
to all Unit Owners, and service of process on each individual Unit Owner shall not be necessary.
(d) The court decree shall be recorded in Garfield County, Colorado.
(e) The reallocations of Allocated Interests pursuant to this Section shall be confirmed by an
amendment to the Declaration prepared, executed, and recorded by the Association without the consent or
approval of any Members or other Persons.
11. Association as Trustee. With respect to a third Person dealing with the Association in the
Association's capacity as a trustee, the existence of trust powers and their proper exercise by the Association
may be assumed without inquiry. A third Person is not bound to inquire whether the Association has the
power to act as trustee or is properly exercising trust powers. A third Person, without actual knowledge that
the Association is exceeding or improperly exercising its powers, is fully protected in dealing with the
Association as if it possessed and properly exercised the powers it purports to exercise. A third Person is
not bound to assure the proper application of trust assets paid or delivered to the Association in its capacity
as trustee.
12. Dedication of Common Elements. Declarant, in recording this Declaration of Covenants,
Conditions and Restrictions, has designated certain areas of land as Common Elements intended for the
common use and enjoyment of Unit Owners for recreation and other related activities. The Common
Elements owned by the Association is not dedicated hereby for use by the general public but is dedicated
to the common use and enjoyment of the Unit Owners, as more fully provided in this Declaration of
Covenants, Conditions and Restrictions.
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IN WITNF,SS WHEREOF, the undersigned, being the Declarant herein, has hereunto set its hand
and seal this day of '' 2023.
DECLARANT:
HALFMOON VILLAGE, LLC
a Colo'ado limited liability corporation
LAA
Tammie VanDeusen, Managing Member
STATE OF COLORADO )
SS.
COUNTY OF GARFIELD )
The foregoing instrument was acknowledged before me this ��0 day of r
2023, by Tammie VanDeusen as Managing Member of Halfrnoon Village, LLC, a Colorado IlYnited liability
corporation.
Witness my hand and official seal.
My commission expires: If f og'r?A2S
Notary Public
DANIELT. MEDINA
NOTARY PUBLIC - STATE OF COLORADO
NOTARY 0 20174046271
MY COMMISSION EXPIRES NOV S, 2025
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Exhibit A — Legal Description of Property
Final Plat of Halfmoon Village Subdivision, a Resubdivision of Restricted Reserve Parcel "C",
Monument Creek Village, Section Two, according to the Plat recorded on
a P-J—e Maee b , 2023 as Reception No. q E� �) Z
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Exhibit B — Common EIements
1. Open Space 1 Parcel, as depicted on the PIat of Halfinoon Village.
2. Open Space 2 Parcel, as depicted on the PIat of Halfmoon Village.
3. Open Space 3 Parcel, as depicted on the Plat of Halfmoon Village.
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Exhibit C - Exceptions
1. Right of the Proprietor of a Vein or Lode to extract and remove his ore therefrom, should the same be
found to penetrate or intersect the premises hereby granted, as reserved in United States Patent recorded
December 11, 1897, in Book 12 at Page 468.
2. Right of way for ditches or canals constructed by the authority of the United States, as reserved in United
States Patent recorded December 11, 1897, in Book 12 at Page 468, and March 21, 1904, in Book 56 at
Page 495.
3. An undivided 112 interest in all oil, gas and other mineral rights, as reserved by The Federal Land Bank
of Wichita in the Deed to Clyde M. Morrow and Mary Belle Morrow recorded December 18, 1944, in Book
213 at Page 269, and any and all assignments thereof or interests therein.
4. An undivided 112 interest in all oil, gas and other mineral rights, as reserved by Carl Davidson in the
Deed to Rea L. Eaton recorded June 12, 1957, in Book 301 at Page 212, and any and all assignments thereof
or interests therein.
5. Easement and right of way for electric transmission Iines purposes, as granted by Rea L. Eaton to Public
Service Company of Colorado by instrument recorded October 20, 1960, in Book 330 at Page 554.
6. An undivided 1132 interest in all oil, gas and other mineral rights, as reserved by Julia V. Morrow and
Ruth V. Keithley in the Deed to John W. Sarage recorded November 10, 1961, in Book 337 at Page 480,
and any and all assignments thereof or interests therein.
7. All interest in all oil, gas and other mineral rights, as reserved by The Exxon Corporation in the Deed to
Battlement Mesa Inc. recorded April 9, 1981, in Book 569 at Page 301, and any and all assignments thereof
or interests therein.
8. Restrictions as contained in instrument recorded October 5, 1981 in Book 582 at Page 721.
15. Restrictions as contained in instrument recorded October 15, 1981, in Book 583 at Page 456, as amended
by instruments recorded April 19, 1982, in Book 597 at Page 423, and August 26, 2003 in Book 1510 at
Page 748.
9. Easements, rights of way and all other matters as shown on the Plat of Monument Creek Village, Section
Two, filed October 5, 1981 as Reception No. 319920.
10. Terms, agreements, provisions, conditions and obligations as contained in Annexation to Battlement
Mesa recorded May 3, 1992, in Book 598 at Page 557.
11. An undivided 40% interest in all oil, gas and other mineral rights, as conveyed by Exxon Corporation
to Tosco Corporation by Deed recorded June 22,1982 in Book 601 at Page 658, and any and all assignments
thereof or interests therein.
12. Restrictions as contained in instrument recorded August 13, 1991 at Reception No. 426419, as amended
and supplemented by instruments recorded April 27, 1999 at Reception No. 544590, November 11, 2001
at Reception No. 592295, March 28, 2002 at Reception No. 600070, October 31, 2002 at Reception No.
613708, August 26, 2003 at Reception No. 631973, March 1, 2004 at Reception No. 647410, April 25,
2005 at reception No. 672848, January 13,m 2006 at Reception No. 690448, February 27, 2006 at Reception
No. 692885, August 3, 2009 at Reception No. 772654, October 21, 2011 at Reception No. 809699 and
October 4, 2019 at Reception No. 926453.
13. Terms, agreements, provisions, conditions and obligations as contained in Resolution No. 93-041
recorded May 18, 1993 at Reception No. 447570.
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14. Terms, agreements, provisions, conditions and obligations as contained in Surface Use Agreement
recorded July 8, 1999 at Reception No. 548481 and amendments recorded August 20, 2010 at Reception
No. 790390, June 10, 2015 at Reception No. 863878 and July 25, 2017 at Reception No. 895194, Partial
Assignment recorded May 15, 2017 at Reception No. 892360.
15. Easement and right of way for broadband communication system purposes, as granted by Comcast of
Colorado/Florida, Inc. to Battlement Mesa Partners, by instrument recorded March 8, 2005 at Reception
No. 669853, said easement being more particularly described therein.
16. Terms, agreements, provisions, conditions and obligations as contained in Resolution No. 2008-33
recorded March 12, 2008 at Reception No. 744451.
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