HomeMy WebLinkAbout1.11 Covenants Conditions & Restrictions (REDLINED)
FIRST AMENDED AND RESTATED MASTER DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR SPRING VALLEY RANCH P.U.D.
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TABLE OF CONTENTS
Page
ARTICLE I DECLARATION ................................................................................................... 311
ARTICLE II DEFINITIONS ..................................................................................................... 412
2.1 Act. . .................................................................................................................. 412
2.2 Allocated Interests ........................................................................................... 412
2.3 Annexable Property . ........................................................................................ 513
2.4 Annexation Deed ............................................................................................... 513
2.5 Articles of Incorporation .................................................................................. 614
2.6 Assessment . ...................................................................................................... 614
2.7 Association Property ........................................................................................ 614
2.8 Budget ................................................................................................................ 614
2.9 Building Envelope ............................................................................................. 614
2.10 Bylaws .............................................................................................................. 715
2.11 Cabin Lot ........................................................................................................... 715
2.12 Cabin Interest ..................................................................................................... 715
2.13 Club Property ..................................................................................................... 715
2.14 Common Area .................................................................................................... 715
2.15 Common Expenses............................................................................................. 715
2.16 Common Interest Community............................................................................ 917
2.17 County ................................................................................................................ 917
2.18 Declarant .......................................................................................................... 1017
2.19 Declaration of Easements and Rights .............................................................. 1018
2.20 Deed of Trust ................................................................................................... 1018
2.21 Design Guidelines ............................................................................................ 1018
2.22 Design Review Committee .............................................................................. 1018
2.23 Estate Lot ......................................................................................................... 1018
2.24 Executive Board ............................................................................................... 1018
2.25 Featured Builder ............................................................................................... 1018
2.26 Household Pets................................................................................................. 1018
2.27 Improvements .................................................................................................. 1018
2.28 Lease ................................................................................................................ 1119
2.29 License Agreement .......................................................................................... 1119
2.30 Limited Common Area .................................................................................... 1119
2.31 Lot ................................................................................................................... 1119
2.32 Master Association ........................................................................................... 1119
2.33 Master Declaration ........................................................................................... 1119
2.34 Master Rules and Regulations ......................................................................... 1119
2.35 Member ............................................................................................................ 1219
2.36 Mortgage .......................................................................................................... 1220
2.37 Mortgagee ........................................................................................................ 1220
2.38 Mortgagor ........................................................................................................ 1220
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2.39 Mountain Lot ................................................................................................... 1220
2.40 Notice and Hearing .......................................................................................... 1220
2.41 Occupant .......................................................................................................... 1220
2.42 Owner ............................................................................................................... 1220
2.43 Permitted Exceptions ....................................................................................... 1220
2.44 Person ............................................................................................................... 1220
2.45 Plat ................................................................................................................... 1320
2.46 P.U.D. Plan ...................................................................................................... 1321
2.47 Real Estate Transfer Assessment ..................................................................... 1321
2.48 Registered Builder ........................................................................................... 1321
2.49 Record or Recorded ......................................................................................... 1321
2.50 Regular Assessment ......................................................................................... 1321
2.51 Reimbursement Assessment ............................................................................ 1421
2.52 Shared Driveway .............................................................................................. 1422
2.53 Special Assessment .......................................................................................... 1422
2.54 Special District ................................................................................................. 1422
2.55 Subassociation.................................................................................................. 1422
2.56 Subassociation Common Area ......................................................................... 1422
2.57 Supplemental Declaration ................................................................................ 1422
2.58 Supplemental Plat ............................................................................................ 1522
2.59 Water System ................................................................................................... 1523
2.60 Wildfire Mitigation Plan .................................................................................. 1523
2.625 Wildlife Mitigation Plan .................................................................................. 1523
ARTICLE III GENERAL RESTRICTIONS APPLICABLE TO THE COMMON
INTEREST COMMUNITY....................................................................... 1523
3.1 Master Development Control ........................................................................... 1523
3.2 Violation of Law, Insurance, Etc ..................................................................... 1624
3.3 General Maintenance of Common Interest Community .................................. 1624
3.4 Residential Use and Occupancy....................................................................... 1725
3.5 New Construction Required; No Temporary Buildings or Occupancy ........... 1825
3.6 Building Envelopes .......................................................................................... 1826
3.7 Design Guidelines ............................................................................................ 1826
3.8 Annoying Light, Sound or Odor ...................................................................... 1826
3.9 Noxious or Offensive Activities; Nuisances; Construction Activities ............ 1927
3.10 No Hazardous or Unsafe Activities ................................................................. 2028
3.11 No Woodburning Fireplaces or Stoves; Outside Burning; Fire Hazards ......... 2028
3.12 No Firearms or Hunting ................................................................................... 2028
3.13 No Unsightliness; Outside Personal Property Storage and Clothes Drying .... 2028
3.14 Vehicle Parking, Storage, Operation and Repair. ............................................ 2128
3.15 Garages ............................................................................................................ 2230
3.16 Restrictions on Equipment, Tanks, Antennae, Satellite Dishes, Etc ............... 2230
3.17 Restrictions on Mining or Drilling ................................................................... 2331
3.18 Excavations ...................................................................................................... 2331
3.19 No Interference with Waterways, Drainage or Irrigation Systems, or with
Wetlands/Riparian Habitats ............................................................................. 2431
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3.20 Lakes, Ponds, Creeks, Ditches ......................................................................... 2432
3.21 Lake Banks; Beaches ....................................................................................... 2432
3.22 Fences and Walls ............................................................................................. 2432
3.23 Tree and Natural Shrub Preservation ............................................................... 2533
3.24 Use of Easement Areas; Utility Installation ..................................................... 2633
3.25 Landscaping, Irrigation .................................................................................... 2634
3.26 Tennis Courts and Basketball Goals ................................................................ 2734
3.27 Swimming Pools, Spas, and Related Equipment ............................................. 2735
3.28 Signs and Advertising ...................................................................................... 2735
3.29 Camping and Picnicking .................................................................................. 2735
3.30 Soliciting .......................................................................................................... 2735
3.31 No Individual Water Wells or Individual Sewage Disposal Systems;
Exceptions ........................................................................................................ 2735
3.32 Regulation of Pesticides ................................................................................... 2836
3.33 Maintenance of Visibility at Street Intersections ............................................. 2836
3.34 Restoration of Improvements in the Event of Damage or Destruction ............ 2836
3.35 Leases ............................................................................................................... 2836
3.36 Right of Entry .................................................................................................. 3037
3.37 Damage by Owners During Construction ........................................................ 3038
3.38 Restrictions on Resubdivision, Property Restrictions, and Rezoning.............. 3038
3.39 Health, Safety and Welfare .............................................................................. 3139
3.40 Implementation and Variances ........................................................................ 3139
3.41 Declarant Activities ......................................................................................... 3240
3.42 Landowner Obligations .................................................................................... 3240
3.43 Recognition of Right-to-Farm.......................................................................... 3240
ARTICLE IV ROADS AND STREETS IN COMMON INTEREST COMMUNITY ........... 3341
4.1 Ownership and Maintenance ............................................................................ 3341
4.2 Easement for Access ........................................................................................ 3341
4.3 Reserved Declarant Rights ............................................................................... 3341
4.4 No Liability for Gatehouses or Entry Gate or Security Patrol ......................... 3442
4.5 Rights Appurtenant to Club Property .............................................................. 3442
ARTICLE V WATER AND SEWER SYSTEMS .................................................................. 3542
5.1 Water System ................................................................................................... 3542
5.2 Sewer System. .................................................................................................. 3543
5.3 Ownership and Maintenance of Systems ......................................................... 3543
5.4 Sprinkler Irrigation System .............................................................................. 3643
5.5 Ownership and Maintenance of Sprinkler Irrigation System .......................... 3644
5.6 Easements ........................................................................................................ 3644
ARTICLE VI DESIGN REVIEW COMMITTEE .................................................................. 3644
6.1 Establishment of Design Review Committee .................................................. 3644
6.2 Establishment of Subcommittees ..................................................................... 3745
6.3 Meetings and Action of Committee ................................................................. 3745
6.4 Compensation; Expenses ................................................................................. 3745
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6.5 Records of Actions ........................................................................................... 3845
6.6 Approvals in Annexed Areas ........................................................................... 3845
6.7 Design Guidelines ............................................................................................ 3845
6.8 Design Review Fee .......................................................................................... 3846
6.9 Registration of Builders ................................................................................... 3946
6.10 Design Review and Construction Process ....................................................... 3947
6.11 Submission of Plans, Specifications and Data ................................................. 3947
6.12 Criteria for Approval or Disapproval ............................................................... 4047
6.13 Decisions of Committee; Binding Effect ......................................................... 4048
6.14 Completion of Work After Approval ............................................................... 4048
6.15 Right to Inspect ................................................................................................ 4148
6.16 Notice of Completion; Inspection of Work; Correction of Defects. ................ 4149
6.17 Certificate of Compliance ................................................................................ 4250
6.18 Improvements Must Conform to Approvals .................................................... 4250
6.19 Committee Power to Grant Variances ............................................................. 4250
6.20 Nonliability for Approval or Disapproval of Plans and Specifications, for
Issuance of Certificates of Compliance, or for Registration of Builders ......... 4351
6.21 Featured Builders ............................................................................................. 4452
6.22 Enforcement ..................................................................................................... 4552
ARTICLE VII ASSOCIATION PROPERTY ......................................................................... 4552
7.1 Use and Enjoyment of Association Property ................................................... 4552
7.2 Recreational, Health and Social Facilities ....................................................... 4553
7.3 Master Association May Regulate Use of Association Property ..................... 4653
7.4 Master Association to Maintain and Improve Association Property ............... 4654
7.5 No Partition of Association Property ............................................................... 4754
7.6 Owner Liability for Owner or Occupant Damage to Association Property ..... 4754
7.7 Damage or Destruction to Association Property ............................................. 4755
7.8 Condemnation of Association Property ........................................................... 4755
7.9 Title to Association Property Upon Dissolution of Master Association .......... 4855
7.10 Mechanic's Liens on Association Property. ..................................................... 4855
ARTICLE VIII DECLARANT'S RESERVED RIGHTS ....................................................... 4856
8.1 Construction of Improvements ........................................................................ 4956
8.2 Sales, Marketing and Management .................................................................. 4957
8.3 Merger .............................................................................................................. 5057
8.4 Declarant Control of Master Association ........................................................ 5057
8.5 Annexation of Additional Properties ............................................................... 5058
8.6 Annexation Procedure ...................................................................................... 5058
8.7 Annexation of Additional Unspecified Real Estate ......................................... 5158
8.8 Withdrawal Rights and Procedure ................................................................... 5159
8.9 Effect of Expansion or Contraction ................................................................. 5259
8.10 Subdivision of Lots or Parcels ......................................................................... 5260
8.11 Transfer of Additional Property to Master Association ................................... 5360
8.12 Other Reserved Development Rights ............................................................... 5360
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8.13 Owner Review, Acceptance and Waiver of Rights Re: P.U.D. Plan and
Declarant's Reserved Rights ............................................................................ 5360
8.14 Declarant As Attorney-in-Fact for Owners...................................................... 5361
8.15 Transfer of Declarant's Reserved Rights ......................................................... 5461
8.16 Termination of Declarant's Reserved Rights ................................................... 5461
ARTICLE IX EASEMENTS ................................................................................................... 5462
9.1 Easements for Incidental Encroachments ........................................................ 5462
9.2 Blanket Master Association Utility and Drainage Easement Over Streets,
Roads, Shared Driveways, and Association Property ...................................... 5462
9.3 Master Association Administrative Easement Over Streets Roads Shared
Driveways, and Association Property .............................................................. 5562
9.4 Declarant Easement Over Streets, Roads, Shared Driveways, and
Association Property ........................................................................................ 5562
9.5 Utility, Drainage, and/or Irrigation Easements ................................................ 5563
9.6 Water Body Maintenance Easements .............................................................. 5663
9.7 Fence Maintenance Easements ........................................................................ 5663
9.8 Berm Maintenance Easements ......................................................................... 5663
9.9 Equestrian/Pedestrian Trail Easement ............................................................. 5664
9.10 Pedestrian/Bike Trail Easement ....................................................................... 5664
9.11 Conservation Easement .................................................................................... 5664
9.12 Open Space and Wildlife Movement Corridor Easements .............................. 5765
9.13 Defensible Space, Fuels Reduction Easements and Fuelbreak Easements ...... 5765
9.14 Meadow Parcel Easement ................................................................................ 5865
9.15 Park Easements ................................................................................................ 5865
9.16 Shared Driveway Easements ............................................................................ 5865
9.17 Easements for Benefit of Club Property .......................................................... 5966
9.18 Blanket Emergency Services Easement ........................................................... 5966
9.19 Easements Deemed Created. ............................................................................ 5966
9.20 Restrictions on Owners in Easement Areas ..................................................... 6067
9.21 Recorded Easements and Licenses .................................................................. 6067
ARTICLE X WILDFIRE MITIGATION PLAN .................................................................... 6067
10.1 Wildfire Mitigation Plan .................................................................................. 6067
10.2 Access, Inspection and Enforcement ............................................................... 6168
10.3 Defensible Space and Defensible Space Easement ......................................... 6168
10.4 Fuels Reduction Easement ............................................................................... 6168
10.5 Fuelbreak Easement ......................................................................................... 6168
10.6 Linked Defensible Space and Overlot Thinning. ............................................. 6269
10.7 Universal Construction Standards.................................................................... 6269
10.8 Specific Construction Standards ...................................................................... 6269
ARTICLE XI WILDLIFE MITIGATION PLAN ................................................................... 6269
11.1 Wildlife Mitigation Plan .................................................................................. 6269
11.2 Garbage, Trash; Compost, Containers ............................................................. 6269
11.3 Animals and Wildlife ....................................................................................... 6370
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11.4 Raptor Nest Protection ..................................................................................... 6471
11.5 Wildlife Damage .............................................................................................. 6471
11.6 Wetlands and Riparian Areas. .......................................................................... 6471
11.7 Golf Course and Open Space Management. .................................................... 6572
11.8 Trail Seasonal Use Restrictions ....................................................................... 6572
11.9 Tree and Natural Shrub Preservation ............................................................... 6572
11.10 Weed Control ................................................................................................... 6673
11.11 Residential Landscaped Areas ......................................................................... 6673
11.12 Security Enforcement ....................................................................................... 6673
ARTICLE XII REAL ESTATE TRANSFER ASSESSMENTS TO THE WILDLIFE
AND WILDFIRE TRUST ......................................................................... 6673
12.1 Establishment ................................................................................................... 6673
12.2 Purpose and Use of Transfer Assessments ...................................................... 6774
12.3 Definitions........................................................................................................ 6774
12.4 Exclusions ........................................................................................................ 6875
12.5 Payment and Reports ....................................................................................... 7178
ARTICLE XIII MASTER ASSOCIATION ............................................................................ 7279
13.1 Master Association ........................................................................................... 7279
13.2 Master Association Executive Board ............................................................... 7279
13.3 Membership in Master Association ................................................................. 7380
13.4 Voting Rights of Members ............................................................................... 7380
13.5 Period of Declarant Control of Master Association ......................................... 7481
13.6 Termination of Contracts and Leases of Declarant .......................................... 7683
13.7 Master Association/Subassociations ................................................................ 7683
ARTICLE XIV POWERS AND DUTIES OF MASTER ASSOCIATION ........................... 7683
14.1 General Powers and Duties of Master Association .......................................... 7683
14.2 Power to Grant Easements ............................................................................... 7784
14.3 Power to Convey or Encumber Association Property ..................................... 7784
14.4 General Power to Provide Services and Facilities to Owners .......................... 7784
14.5 Power to Provide Services to Subassociations ................................................. 7885
14.6 Power to Provide Special Services to Owners ................................................. 7885
14.7 Power to Charge for Special Association Property Uses and Special
Master Association Services. ........................................................................... 7885
14.8 Power to Acquire Property and Construct Improvements ............................... 7885
14.9 Power to Adopt Master Rules and Regulations ............................................... 7986
14.10 Power to Contract with Employees, Agents, Contractors, Districts,
Consultants and Managers ............................................................................... 7986
14.11 Power to Assign Future Income ....................................................................... 7986
14.12 Duty to Accent Property and Facilities Transferred by Declarant ................... 7986
14.13 Duty to Maintain and Care for Association Property ...................................... 8087
14.14 Duty to Pay Taxes ............................................................................................ 8087
14.15 Duty to Keep Master Association Records ...................................................... 8087
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14.16 Duty to Support Design Review Committee ................................................... 8188
14.17 Insurance .......................................................................................................... 8188
14.18 Damage to Common Interest Community ....................................................... 8693
ARTICLE XV ASSESSMENTS ............................................................................................. 8794
15.1 Assessment Obligation and Lien. .................................................................... 8794
15.2 Statutory Lien................................................................................................... 8794
15.3 Lien Superior to Homestead and Other Exemptions ....................................... 8895
15.4 Priority of Lien ................................................................................................. 8895
15.5 Perfection of Lien ............................................................................................ 8895
15.6 Regular Assessments. ...................................................................................... 8895
15.7 Master Association Budget .............................................................................. 9097
15.8 Reserves Fund Account ................................................................................... 9097
15.9 Special Assessments ........................................................................................ 9097
15.10 Reimbursement Assessments ........................................................................... 9198
15.11 Effect of Nonpayment of Assessments; Remedies of the Master
Association ....................................................................................................... 9198
15.12 Statement of Unsaid Assessments ................................................................... 9299
15.13 Assessments for Tort Liability ......................................................................... 9299
15.14 Working Capital Fund...................................................................................... 9299
ARTICLE XVI EMINENT DOMAIN .................................................................................. 93100
16.1 Definition of Taking ...................................................................................... 93100
16.2 Representation in Condemnation Proceedings of Association Property ....... 93100
16.3 Award for Association Property. ................................................................... 94101
16.4 Taking of Lots ................................................................................................ 94101
16.5 Miscellaneous ................................................................................................ 94101
ARTICLE XVII GENERAL PROVISIONS ......................................................................... 94101
17.1 Duration of Master Declaration ..................................................................... 94101
17.2 Termination of Common Interest Community .............................................. 94101
17.3 Amendment of Master Declaration and Plat .................................................. 94101
17.4 Compliance; Enforcement ............................................................................. 96103
17.5 Rights of First Mortgagees............................................................................. 97104
17.6 Club Property and Facilities........................................................................... 97104
17.7 Club Property Hazards, Risks and Liabilities; Disclosure, Assumption of
Risk, Release and Indemnification ................................................................ 98105
17.8 Notice ........................................................................................................... 100107
17.9 No Dedication to Public Use........................................................................ 101108
17.10 Interpretation of Master Declaration and Supplemental Declarations,
Conflicts with Act ........................................................................................ 101108
17.11 Conflict With Plats ....................................................................................... 101108
17.12 No Express or Implied Covenants on Lands Not Annexed. ........................ 101108
17.13 Violations Constitute a Nuisance ................................................................. 101108
17.14 Declarant's Disclaimer of Representations and Warranties ......................... 102109
17.15 Captions ....................................................................................................... 102109
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17.16 Singular Includes Plural ............................................................................... 102109
17.17 Remedies Cumulative .................................................................................. 102109
17.18 Costs and Attorneys' Fees ............................................................................ 102109
17.19 Governing Law; Jurisdiction ........................................................................ 102109
17.20 Severability. ................................................................................................. 103110
17.21 Disclaimer Regarding Safety ....................................................................... 103110
ARTICLE XVIII DISPUTE RESOLUTION ...................................................................... 103110
18.1 Alternative Method for Resolving Disputes ................................................ 103110
18.2 Claims .......................................................................................................... 103110
18.3 Exemptions .................................................................................................. 104111
18.4 Notice of Claim ............................................................................................ 104111
18.5 Timely Initiation .......................................................................................... 105112
18.6 Right to be Heard ......................................................................................... 105112
18.7 Right to Inspect and Repair .......................................................................... 105112
18.8 Good Faith Negotiations .............................................................................. 105112
18.9 Mediation. .................................................................................................... 106113
18.10 Arbitration. ................................................................................................... 106113
18.11 Consensus for Master Association Action ................................................... 109116
18.12 Liability for Failure to Maintain an Action .................................................. 109116
18.13 Utilization of Funds Resulting from the Cause of Action ........................... 110117
18.14 Exclusive Remedy ....................................................................................... 110117
18.15 Costs ............................................................................................................. 110117
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FIRST AMENDED AND RESTATED MASTER DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS FOR SPRING VALLEY RANCH P.U.D.
THIS FIRST AMENDED AND RESTATED MASTER DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR SPRING VALLEY RANCH
P.U.D. (the "Master Declaration"), effective this ____ day of __________, 2022 is made and
entered into by Spring Valley Holdings, LLC, a Delaware limited liability company (the
"Declarant").
RECITALS
1. Declarant is the owner of that certain real property situated in Garfield County,
Colorado, known as Spring Valley Ranch P.U.D. (Phase I), as more particularly described on
Exhibit A attached hereto and by reference made a part hereof (the "Common Interest
Community"). Declarant previously recorded the Master Declaration of Covenants, Conditions
and Restrictions for Spring Valley P.U.D. on October 21, 2010 as Reception No. 793245 of the
real estate records of Garfield County, Colorado (“Original CCRs”). Declarant hereby
supersedes and replaces the Original CCRs with this Master Declaration. The Original CCRs
shall be of no further force and effect; instead, this Master Declaration shall govern and control
the matters set forth herein.
2. Declarant is also the owner of certain contiguous and non-contiguous real
properties that are more particularly described on Exhibit B attached hereto and by reference
made a part hereof (the "Annexable Property").
3. The Common Interest Community and most of the Annexable Property have been
approved for development pursuant to a Planned Unit Development by the County of Garfield,
State of Colorado, pursuant to Resolution No. 2008-55, recorded as Reception No. 747015; and
Resolution No. 2008-56, recorded as Reception No. 747016; Resolution 2010-38 (correcting
Resolution No. 2008-55), recorded as Reception No. 786992; Resolution No. 2012-95,
recorded as Reception No. 828066; and Resolution No. 2017-31, recorded as Reception No.
894968 of the real estate records of Garfield County, Colorado and incorporated herein by this
reference (the "P.U.D. Plan").
4. Declarant intends to develop the Common Interest Community as a planned
community under the Colorado Common Interest Ownership Act. Declarant reserves the right,
but shall have no obligation, to annex to the Common Interest Community from time to time
some or, all of (i) the Annexable Property, and/or (ii) additional unspecified real estate to
develop such property as part of the planned community. Each such annexation shall be
accomplished by the recording of a Supplemental Declaration, together with a Supplemental Plat
or Map, which describe and depict any new Lots, Common Areas and/or Subassociation
Common Areas thereby added to the Common Interest Community, and which describe any
Common Elements or Limited Common Elements and any Cabin Interests thereby created. The
Supplemental Declaration shall incorporate this Master Declaration by reference and shall set
forth such amendments to the Master Declaration and such additional covenants, conditions,
uses, restrictions, and reserved development rights as may be applicable to the annexed property.
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5. Under the present P.U.D. Plan, Fourive Hundred EighFifty-TwoEight (55482)
legally separate Lots and Nineteen (19) multi-family units are permitted to be created and
developed. With the potential addition to the Common Interest Community of Annexable
Property that is not covered by the P.U.D. Plan, and of additional unspecified real estate, the
maximum number of Lots that may realistically be created and that Declarant reserves the right
to create within the Common Interest Community is Five Hundred SeventyFifty-SevenEight
(57758) Lots. Declarant reserves the right to further divide the Cabin Lots into undivided
interests to be known as "Cabin Interests." Within the Golf Property (Exhibit C, which is
specifically excluded from the Common Interest Community) and pursuant to the PUD Plan,
Developer may also create up to twenty (20) multi-family residential units. Further, on property
adjacent to the Common Interest Community and pursuant to the PUD Plan, Developer may
create up to Seventy-Five (75) single family and multi-family residential units in and in
compliance with the “Community Housing District” as described in the PUD Plan.
6. Spring Valley Ranch Community Master Association, a Colorado non-profit
corporation, has been formed as a master association to exercise the functions set forth herein
and to own, lease, hold, operate, care for and manage certain property for the common benefit of
Owners and Occupants of Lots within, and of any other person acquiring an interest in, the
Common Interest Community.
7. Declarant desires to establish covenants, conditions and restrictions upon the
Common Interest Community and all properties that may hereafter be annexed thereto, and
certain mutually beneficial restrictions and limitations with respect to the proper use, occupancy,
improvement and enjoyment thereof, all for the purposes of enhancing and protecting the value,
desirability and attractiveness of the Common Interest Community and enhancing the quality of
life within the Common Interest Community.
8. Declarant desires and intends that the Owners, Mortgagees, Occupants and all
other Persons hereafter acquiring any interest in the Common Interest Community shall at all
times enjoy the benefits of, and shall hold their interests subject to, the covenants, conditions,
restrictions, assessments, charges, servitudes, liens, reservations and easements contained in this
Master Declaration, as it may be supplemented or amended from time to time by Supplemental
Declaration or otherwise.
ARTICLE I
DECLARATION
NOW, THEREFORE, for the purposes set forth above and herein, Declarant for itself
and its successors and assigns hereby declares that the Common Interest Community and all
other property which becomes subject to this Master Declaration in the manner hereinafter
provided, and each part thereof, shall be owned, held, transferred, conveyed, sold, leased, rented,
hypothecated, encumbered, used, occupied, improved, altered, maintained and enjoyed subject to
the covenants, conditions, restrictions, assessments, charges, servitudes, liens, reservations,
exceptions, easements, privileges, rights and other provisions hereinafter set forth, for the
duration hereof, all of which are declared to be part of, pursuant to, and in furtherance of a
common and general plan of development, improvement, enhancement, use, occupancy and
enjoyment of the Common Interest Community, and all of which shall run with the land and be
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binding upon and inure to the benefit of (i) the Common Interest Community and every part
thereof, (ii) Declarant and its successors and assigns, (iii) the Master Association and its
successors and assigns, (iv) every Member of the Master Association, and (v) all Owners,
Occupants and other Persons having or acquiring any right, title or interest in or to the Common
Interest Community or any part thereof, or any Improvement thereon, and their respective heirs,
personal representatives, successors and assigns. Provided always, that to the extent this Master
Declaration provides that Declarant shall not be bound by or is exempt from the application of
certain covenants, conditions and restrictions contained herein, Declarant shall not be considered
subject to such covenants, conditions or restrictions.
Notwithstanding the foregoing, in no event shall the Annexable Property or any portion
thereof be burdened or benefited by or otherwise subject to any of the terms or provisions of this
Master Declaration until such property has been annexed to the Common Interest Community, at
Declarant's sole option and discretion, and expressly subjected to the terms and provisions hereof
(and any amendments hereof affecting the annexed property as may be contained in the
Supplemental Declaration therefore), all as more particularly provided herein. This Declaration
shall be recorded in Garfield County, Colorado and shall be indexed in the Grantee's index in the
name of Spring Valley Ranch and the Master Association and in the Grantor's Index in the name
of Spring Valley Holdings, LLC.
ARTICLE II
DEFINITIONS
Unless otherwise expressly provided herein, the following words and phrases when used
in this Master Declaration shall have the meanings hereinafter specified.
2.1 Act. "Act" shall mean the Colorado Common Interest Ownership Act as set forth
in C.R.S. 38-33.3-101, et seq., as the same may be amended from time to time.
2.2 Allocated Interests. "Allocated Interests" means the Common Expenses liability
and the votes in the Master Association allocated to each Lot and each Cabin Interest, which
interests are allocated as follows:
(a) The Common Expenses liability for each Lot is calculated on the basis of
a fraction, the numerator of which is one (1) and the denominator of which is the total
number of Lots in the Common Interest Community as of the date of the calculation. The
denominator may be increased from time to time by the Declarant upon the addition of
Lots to the Common Interest Community, which can be conveyed to third parties. Such
fraction is then multiplied by the Common Expenses or the Assessment in question to
determine that Lot's share thereof. The Common Expenses liability of a Lot is
determined without reference to the size, location, value or use of the Lot.
(b) If a Cabin Lot is divided into Cabin Interests pursuant to a Supplemental
Declaration, the Common Expenses liability for that Lot shall be reallocated in equal
shares amongst the Cabin Interests created for the Lot. For example, if a Lot is divided
into undivided one-fourth (1/4) Cabin Interests, the Common Expenses liability for each
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such Cabin Interest shall be 25 percent of the Common Expenses liability allocated to
that Lot.
(c) Four (4) votes in the Master Association are allocated to each Lot in the
Common Interest Community.
(d) If a Cabin Lot is divided into Cabin Interests pursuant to a Supplemental
Declaration, the votes allocated to that Cabin Lot should be reallocated equally amongst
the Cabin Interests created for the Lot. For example, if a Lot is divided into undivided
one-fourth (1/4) Cabin Interests, one (1) vote in the Master Association shall be allocated
to each such Cabin Interest.
(e) The foregoing allocations may not discriminate in favor of Lots or Cabin
Interests owned by Declarant or an affiliate of Declarant.
(f) If Lots are added to or withdrawn from the Common Interest Community,
(i) the Common Expenses liability for each Lot shall be reallocated on the basis of a
fraction, the numerator of which is one (1) and the denominator of which is the total
number of Lots in the Common Interest Community following the addition or withdrawal
of such Lots, and (ii) four (4) votes in the Master Association shall continue to be
allocated to each Lot in the Common Interest Community following the addition or
withdrawal of such Lots.
2.3 Annexable Property. "Annexable Property" means that certain real property
described on attached Exhibit B, which property has not yet been annexed to the Common
Interest Community or made subject to the terms and provisions of this Master Declaration. In
the sole discretion of Declarant, all or a portion of the Annexable Property may from time to time
be annexed to, and made a part of, the Common Interest Community in the manner provided in
this Master Declaration.
2.4 Annexation Deed "Annexation Deed" means, for each particular portion of the
Annexable Property, the first to occur any of (a) the first deed, executed by the Owner of such
portion other than the Declarant, which shall be recorded after the recordation of this Declaration
by which title to such portion of the Annexable Property shall be conveyed by such Owner to
another party, (b) another instrument executed by the Owner of such portion, and if such Owner
is other than Declarant, containing the executed and acknowledged written consent of Declarant
to such instrument, referring to this Declaration and stating that such instruments shall constitute
an Annexation Deed for such portion of the Annexable Property for the purposes hereof, or (c)
any deed made in connection with an involuntary transfer of such portion of the Annexable
Property, including, without limitation, any treasurer's deed made in connection with a tax sale of
such portion of the Annexable Property or any sheriff's deed or public trustee's deed made in
connection with any foreclosure, whether a judicial foreclosure or a foreclosure through the
public trustee, of a Mortgage, as defined in this Declaration, encumbering such portion of the
Annexable Property, or any deed in lieu of foreclosure of any such Mortgage; provided, however
that, notwithstanding the foregoing, the term "Annexation Deed" shall, without limitation, not
include any of (i) any deed from the Owner, other than Declarant, of such portion of the
Annexable Property to another party if such deed shall expressly refer to this Declaration and
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state that such deed shall not constitute an Annexation Deed for the purposes hereof and shall
contain the executed and acknowledged written consent of Declarant that such deed shall not
constitute an Annexation Deed for the purposes hereof, or (ii) any bona fide Mortgage
encumbering such portion of the Annexable Property, provided that, as is more particularly
provided above, a deed made in connection with, or in lieu of, a foreclosure of such Mortgage
shall constitute an Annexation Deed for the purposes hereof.
2.5 Articles of Incorporation. "Articles of Incorporation" or "Articles" means the
Articles of Incorporation of Spring Valley Ranch Community Master Association, which have
been filed with the office of the Secretary of State of the State of Colorado, as the same may be
amended from time to time.
2.6 Assessment. "Assessment" means a Regular Assessment, Special Assessment,
Reimbursement Assessment, or Real Estate Transfer Assessment.
2.7 Association Property. "Association Property" means, to the extent of the Master
Association's interest therein: (a) all real and personal property, including Improvements, now or
hereafter owned or leased by the Master Association, (b) all Common Areas now or hereafter
owned, leased or maintained by the Master Association, together with the Improvements thereon;
(c) all easements created or reserved on any Plat, or Supplemental Plat, or in this Master
Declaration or in any Supplemental Declaration, or in any separate agreement, for the use and
benefit of the Master Association and/or the Owners, and (d) any water rights, ditch rights, and
water systems, facilities and/or features (or interests therein) that may be owned, leased or
maintained by the Master Association or which the Master Association is entitled to use.
Association Property may be located within or outside the Common Interest Community. With
the exception of easements which are Association Property, Association Property does not
include the Lots or the Improvements constructed thereon, and is subject to the Permitted
Exceptions.
2.8 Authority Having Jurisdiction. The organization, office, or individual
responsible for approving equipment, an installation, or a procedure. Typically, where public
safety is primary, the authority having jurisdiction may be a federal, state, local, or other regional
department, or individual such as a fire chief, fire marshal, chief of a fire prevention bureau,
labor department, health department, building official, electrical inspector, or others having
statutory authority.
2.7
2.82.9 Budget. "Budget" means a written itemized estimate of the Common Expenses to
be incurred by the Master Association in performing its functions under this Master Declaration
and adopted by the Executive Board pursuant to Section 15.712.8 of this Master Declaration.
2.92.10Building Envelope. "Building Envelope" means that portion of a Lot which may
be depicted and designated as the "Building Envelope" on a Plat. If a Lot contains a platted
Building Envelope, all Improvements on that Lot must be located entirely within the Building
Envelope, including but not limited to dwellings, patios, decks, lawns, garages, kennels,
approved privacy and garden fences, approved fenced horse enclosures, swimming pools, storage
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buildings, and other out buildings, facilities and amenities associated with the residence, but
excluding roof overhangs. No disturbance shall be allowed outside the Building Envelope,
including without limitation excavation, grading or clearing activities, Improvements, and
landscaping, excepting the minimum disturbance required in connection with underground
utilities, irrigation and drainage systems, and access driveways, and driveway features approved
by the Design Review Committee including retaining walls, guard rails driveway lighting and
landscaping (including vegetation manipulation where required by the Wildfire Mitigation Plan),
and gate/entry features. In appropriate circumstances, as determined in each instance by the
Design Review Committee in the exercise of its sole discretion, individual sewage treatment
systems may be located partly or wholly outside the Building Envelopes on Lots for which such
systems are approved.
2.102.11 Bylaws. "Bylaws" means the Bylaws of the Master Association which
have been or will be adopted by the Executive Board of the Master Association, as the same may
be amended from time to time.
2.112.12 Cabin Lot. "Cabin Lot" means any Lot which is designated as a Cabin
Lot on a Plat, together with all Improvements thereon and appurtenances thereto
2.122.13 Cabin Interest. "Cabin Interest" means each undivided fee simple owners
rated with respect to a Cabin Lot (including the Improvements thereon) pursuant to a
Supplemental Declaration.
2.132.14 Club Property. "Club Property" means those certain properties adjacent
to the Common Interest Community which are owned by the Declarant, its successors and
assigns (the "Club Property Owner") and which are more particularly described on Exhibit C
attached hereto and made a part hereof by this reference, together with all golf, tennis,
swimming, clubhouse, other recreational, social and maintenance improvements and facilities
that may be located thereon from time to time. In no event shall the Club Property be deemed a
part of the Common Interest Community, or be burdened by this Master Declaration. The Club
Property is not Association Property. This Master Declaration does not grant or create any rights
to or for the benefit of the Owners or Occupants of Lots in the Common Interest Community to
use or enjoy the Club Property or any part thereof or improvement or facility thereon for any
purpose, except for such limited ingress and egress rights as may be expressly provided in the
License Agreement. THE CLUB PROPERTY SHALL NOT BE A COMMON AREA.
2.142.15 Common Area. "Common Area" means any portion of the Common
Interest Community designated in this Master Declaration or any Supplemental Declaration or on
a Plat or any Supplemental Plat as Common Area or Limited Common Area or Open Space and
which is owned or leased or maintained by the Master Association for the common use and
enjoyment of the Owners and Occupants or some of them, including, but not limited to,
pathways, trails, guard houses, and other security facilities and entry features.
2.152.16 Common Expenses. "Common Expenses" means any expenditures made
or liabilities incurred by or on behalf of the Master Association, together with any allocations to
reserves, including, but not limited to the following:
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(a) The costs of maintenance, management, operation, repair and replacement
of the Association Property, and of all other parts of the Common Interest Community
which are managed or maintained by the Master Association, but excluding any areas
being managed or maintained at the expense of a Subassociation or a Special District;
(b) The costs of Improvements constructed from time to time by the Master
Association on or in connection with Association Property, if such costs were included
within a duly adopted Budget;
(c) Unpaid assessments;
(d) The costs of management and administration of the Master Association,
including, but not limited to, compensation paid by the Master Association to managers,
accountants, attorneys and employees;
(e) The costs of utilities and services (including, but not limited to, treated or
untreated water, electricity, gas, sewer, trash pick-up and disposal and recycling), which
are provided to the Master Association or the Common Interest Community or parts
thereof and not individually metered or assessed to Lots, landscaping maintenance, and
other services which generally benefit and enhance the value and desirability of the
Common Interest Community or parts thereof and which are provided by or on behalf of
the Master Association, but excluding any such utilities or services that may be provided
by a Subassociation or a Special District;
(f) The costs of insurance maintained by the Master Association as required
or permitted herein, but excluding any insurance maintained by a Subassociation;
(g) Reasonable reserves for contingencies, replacements and other proper
purposes as deemed appropriate by the Executive Board to meet anticipated costs and
expenses including, but not limited to, maintenance, repair and replacement of
Association Property that must be maintained, repaired or replaced on a periodic basis.
(h) The costs of bonding the members of the Executive Board, the officers of
the Master Association, any professional managing agent or any other Person handling
the funds of the Master Association;
(i) Taxes paid by the Master Association;
(j) Amounts paid by the Master Association for the discharge of any lien or
encumbrance levied against Association Property or any portion thereof;
(k) The costs and expenses incurred by the Design Review Committee, and
compensation that may be paid by the Master Association to members of the Design
Review Committee or to such professional advisors of the Design Review Committee as
such Committee may require;
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(l) The costs and expenses incurred by any committees that may be
established from time to time by the Executive Board, and compensation that may be
paid by the Master Association to members of such committees;
(m) The costs of any security or security systems or services that may be
installed, operated, contracted for and/or monitored by the Master Association for the
benefit of the Common Interest Community or any part thereof,
(n) The costs of maintaining, operating and replacing informational,
recreational, cultural, health-related or similar facilities or enterprises available to or for
the benefit of all or a portion of the Common Interest Community;
(o) The costs of implementing and administering the Wildlife Mitigation Plan
and the Wildfire Mitigation Plan, to the extent such costs are incurred by or on behalf of
the Master Association;
(p) All expenses expressly declared to be Common Expenses by this Master
Declaration or by a Supplemental Declaration, and all expenses lawfully determined to be
Common Expenses by the Executive Board; and
(q) Other expenses incurred by the Master Association for any reason
whatsoever in connection with Association Property, or the costs of any other item or
service provided or performed by the Master Association pursuant to this Master
Declaration, any Supplemental Declaration, the Articles, Bylaws, Master Rules and
Regulations, or Design Guidelines, or in furtherance of the purposes of the Master
Association or in the discharge of any duties or powers of the Master Association. In the
event that any common services furnished to the Common Interest Community are part of
services that are provided to or benefit property in addition to the Common Interest
Community, Common Expenses shall only include the cost of such services reasonably
allocated to the services provided to the Common Interest Community. Costs and
expenses incurred by a Special District shall not be considered Common Expenses,
although charges made by a Special District to the Master Association for services
provided by the Special District pursuant to a contract with the Master Association shall
be Common Expenses.
2.162.17 Common Interest Community. "Common Interest Community" means
the Common Interest Community described on attached Exhibit A and any additional real
property which may from time to time be annexed to the Common Interest Community and made
subject to this Master Declaration by Supplemental Declaration and Supplemental Plat, including
all Lots, Cabin Interests, and Association Property, together with all Improvements and other
amenities now or hereafter located thereon, and together with all easements, rights,
appurtenances and privileges belonging or in any way pertaining thereto. If any property is
subsequently withdrawn from the Common Interest Community pursuant to the provisions of
this Master Declaration, the term "Common Interest Community" shall thereafter not include
said withdrawn property.
2.172.18 County. "County" means the County of Garfield, State of Colorado.
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2.182.19 Declarant. "Declarant" means Spring Valley Holdings, LLC, a Delaware
limited liability company, its successors, assigns, and affiliates. A Person shall be deemed to be
a "successor and assign" of Declarant if specifically designated in a duly Recorded instrument as
a successor or assign of Declarant under this Master Declaration and shall be deemed a successor
and assign of Declarant only as to the particular rights or interests of Declarant under this Master
Declaration which are specifically designated in that written instrument. The term "affiliate of
Declarant" shall have the meaning set forth in Section 38-33.3-103 (1) of the Act.
2.192.20 Declaration of Easements and Rights. "Declaration of Easements and
Rights" means that certain Declaration of Golf Facilities Development, Construction and
Operational Easement that may be made by Declarant and recorded in the Office of the Clerk
and Recorder of Garfield County, Colorado, which instrument may establish certain easements
and restrictions on the Common Interest Community for the benefit of the Club Property and
may establish certain easements and restrictions on the Club Property for the benefit of the
Common Interest Community, all as may be more specifically set forth therein.
2.202.21 Deed of Trust. "Deed of Trust" means a Mortgage.
2.212.22 Design Guidelines. "Design Guidelines" means the rules, regulations,
procedures, standards, guidelines and requirements promulgated from time to time by the Design
Review Committee, and all amendments thereto, governing the review and approval or
disapproval of proposed Improvements within the Common Interest Community, the
performance of construction activities, the registration of Builders, and such other matters as the
Design Review Committee considers necessary or appropriate.
2.222.23 Design Review Committee. "Design Review Committee" means the
Design Review Committee provided for in Article 6 of this Master Declaration.
2.232.24 Estate Lot. "Estate Lot" means any Lot which is designated as an Estate
Lot on a Plat, together with all Improvements thereon and appurtenances thereto.
2.242.25 Executive Board. "Executive Board" or "Board" means the Executive
Board of the Master Association.
2.252.26 Featured Builder. "Featured Builder" means the Owner of a Lot in the
Common Interest Community who (a) acquired such Lot from Declarant for the purpose of
constructing a residential dwelling for resale to the general public; (b) has submitted to and
obtained approval of plans and specifications for such residential dwelling from the Design
Review Committee, and has otherwise complied with the provisions of Article 6 of this Master
Declaration; and (c) has been designated in writing as a "Featured Builder" by Declarant. In
accordance with the provisions of Article 6 hereof, the designation of any Owner of a Lot as a
Featured Builder shall be in Declarant's sole and absolute discretion.
2.262.27 Household Pets. "Household Pets" means generally recognized
household pets such as dogs, cats, fish, birds, rodents, and non-poisonous reptiles.
2.272.28 Improvements. "Improvements" means any improvements, structural or
otherwise, alterations, additions, repairs, excavation, grading, landscaping or other work which
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in any way alters any property within the Common Interest Community, or the improvements
located thereon, from its natural or improved state existing on the date this Master Declaration or
a Supplemental Declaration for such property was first Recorded, including, but not limited to,
dwelling units, buildings, outbuildings, additions, swimming pools, patio covers, awnings, the
painting, staining or other change of any exterior surfaces of any visible structure, walkways,
outdoor sculptures or artwork, sprinkler or irrigation systems, garages, carports, roads,
driveways, parking areas, ponds, ditches, fences, screening walls, retaining walls, stairs, decks,
flag poles, fixtures, landscaping (including the addition, alteration or removal of any tree, shrub
or other vegetation), hedges, windbreaks, plantings, planted trees and shrubs, gardens, poles,
signs, tanks, solar equipment, wind harnessing or other energy generating equipment, exterior air
conditioning, water softener fixtures, utilities, antennae and satellite dishes or receivers. Once an
Improvement has been constructed or accomplished on a property within the Common Interest
Community, any subsequent alteration of or addition to or removal of that improvement shall
also constitute an "Improvement" hereunder.
2.282.29 Lease. "Lease" means and refers to any agreement for the leasing, rental,
use or occupancy of a residential dwelling located on a Lot within the Common Interest
Community. The required terms and procedures for Leases are more particularly set forth in
Section 3.357 below.
2.292.30 License Agreement. "License Agreement" means that certain Pedestrian
Egress and Ingress License, given by the Declarant for the benefit of the Lot Owners, which
agreement grants to Lot Owners a revocable license for egress and ingress over and across
certain portions of the Club Property, all as more particularly described therein.
2.302.31 Limited Common Area. "Limited Common Area" means a Common
Area that is designated by this Master Declaration, by a Supplemental Declaration, on the Plat, or
on a Supplemental Plat, for the exclusive use of one or more Lots in the Common Interest
Community but fewer than all of the Lots.
2.312.32 Lot. "Lot" means any part of the Common Interest Community which is
designated as a Lot (including without limitation a Mountain Lot, a Ranch Lot, an Estate Lot, or
a Cabin Lot) on a Plat or any Supplemental Plat or amendment, together with all Improvements
thereon and appurtenances thereto.
2.322.33 Master Association. "Master Association" means the Spring Valley
Ranch Community Master Association, a Colorado nonprofit corporation, its successors and
assigns.
2.332.34 Master Declaration. "Master Declaration" means this instrument and all
Supplemental Declarations, as this instrument and such Supplemental Declarations may be
amended from time to time.
2.342.35 Master Rules and Regulations. "Master Rules and Regulations" means
rules and regulations adopted from time to time by the Executive Board, as provided in
Section 7.3 of this Master Declaration.
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2.352.36 Member. "Member" means each Lot Owner or any Cabin Interest Owner,
including the Declarant. Membership in the Master Association shall be appurtenant to, and may
not be separated from, ownership of a Lot or a Cabin Interest.
2.362.37 Mortgage. "Mortgage" means any mortgage, deed of trust or other
security instrument, given voluntarily by the Owner of a Lot or a Cabin Interest, creating a real
property security interest in a Lot or Cabin Interest and Recorded in the records of the Clerk and
Recorder of the County. "First Mortgage" means a mortgage which is the first and most senior
of the Mortgages on the same Lot or Cabin Interest. The term "Mortgage" does not mean a
statutory, tax or judicial lien. The term "Deed of Trust" when used herein shall be synonymous
with the term "Mortgage."
2.372.38 Mortgagee. "Mortgagee" means a mortgagee under a Mortgage or a
beneficiary under a Deed of Trust, as the case may be, and the assignees of such Mortgagee.
2.382.39 Mortgagor. "Mortgagor" means the maker, obligor or grantor of a
Mortgage. The term "Mortgagor" includes a trustor or grantor under a Deed of Trust.
2.392.40 Mountain Lot. "Mountain Lot" means any Lot which is designated as a
Mountain Lot on a Plat, together with all Improvements thereon and appurtenances thereto.
2.402.41 Notice and Hearing. "Notice and Hearing" means a written notice and
public hearing before the Executive Board, or a panel appointed by the Executive Board, as set
forth in the Bylaws.
2.412.42 Occupant. "Occupant" means any Person who is a tenant in a residence
on a Lot or a Cabin Interest, pursuant to a Lease with the Owner thereof. "Occupant" also means
any Person who is present within the Common Interest Community as a family member, guest or
invitee of an Owner, an Occupant, the Declarant, or the Master Association.
2.422.43 Owner. "Owner" means the Person, including Declarant, or if more than
one, all Persons collectively, who hold fee simple title of record to a Lot or to a Cabin Interest,
including sellers under executory contracts of sale and excluding buyers thereunder, but does not
include a Mortgagee or the holder of an interest in a Lot or a Cabin Interest solely as security for
a debt. A reference herein to a "Lot Owner" shall also be deemed a reference (where applicable)
to the collective Owners of the Cabin Interests into which that Lot has been divided.
2.432.44 Permitted Exceptions. "Permitted Exceptions" means all liens,
encumbrances, reservations, restrictions, conditions, easements and other matters of record
which encumber the title to all or any part of the Common Interest Community, as of the date
this Master Declaration or a Supplemental Declaration is recorded. This Master Declaration and
any Supplemental Declaration shall be subject to such Permitted Exceptions.
2.442.45 Person. "Person" means a natural person, a corporation, a partnership, a
limited liability company, a trust, or any other entity capable of holding title to real property
pursuant to the laws of the State of Colorado.
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2.452.46 Plat. "Plat" means the Final Plat of Spring Valley Ranch P.U.D.
(Phase I), as recorded October 21__________, 2007 at Reception No. 793243__________ as
amended by First Amended Plat of Spring Valley Ranch P.U.D. Phase 1, Final Plat recorded
December 5, 2012 as Reception No. 828064 in the Office of the Clerk and Recorder of Garfield
County, Colorado, as said Final Plat may be further amended from time to time. By this
reference, said Final Plat is incorporated in this Master Declaration. The term "Plat" also means
each Supplemental Plat Recorded by Declarant and all Recorded amendments thereto.
2.47 P.U.D. Plan. "P.U.D. Plan" means that certain Planned Unit Development Plan
for Spring Valley Ranch P.U.D. as approved by the Board of County Commissioners of Garfield
County by Resolution No. 2008-55, recorded as Reception No. 747015; and Resolution No.
2008-56, recorded as Reception No. 747016; Resolution 2010-38 (correcting Resolution No.
2008-55), recorded as Reception No. 786992; Resolution No. 2012-95, recorded as
Reception No. 828066; and Resolution No. 2017-31, recorded as Reception No. 894968 of
the real estate records of Garfield County, Colorado and incorporated herein by this reference, as
said P.U.D. Plan may be amended from time to time. All Owners and Occupants shall comply at
all times with those restrictions and requirements contained in the P.U.D. Plan that restrict or are
to be complied with by Owners or Occupants.
2.48 Ranch Lot. "Ranch Lot" means any Lot which is designated as a Ranch Lot on a
Plat, together with all Improvements thereon and appurtenances thereto.
2.46
2.472.49 Real Estate Transfer Assessment. "Real Estate Transfer Assessment"
means a chanrge against the transferee of a Lot or Cabin Interest or interest therein and against
said transferee Owner's Lot or Cabin Interest, due and payable to the Master Association at the
time of transfer, in the amount and pursuant to the procedures set forth in Article
XIISection 12.14 hereof.
2.482.50 Registered Builder. "Registered Builder" means a general contractor that
has been registered to perform work within Spring Valley Ranch with the Design Review
Committee pursuant to the guidelines and procedures set forth herein and in the Design
Guidelines.
2.492.51 Record or Recorded. "Record" or "Recorded" means an instrument of
record in, or the act of recording an instrument with, the office of the Clerk and Recorder of
Garfield County.
2.502.52 Regular Assessment. "Regular Assessment" means a charge against an
Owner and the Owner's Lot or Cabin Interest for purposes of covering the annual costs of
operating and administering the Master Association and all other Common Expenses. Regular
Assessments are based on a Budget adopted by the Executive Board in accordance with
Section 15.72.6 below, and are allocated to the Lots and Cabin Interests in accordance with the
Allocated Interests, except that Common Expenses that in the judgment of the Executive Board
benefit fewer than all of the Lots or Cabin Interests shall be allocated exclusively to the Lots or
Cabin Interests benefited.
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2.512.53 Reimbursement Assessment. "Reimbursement Assessment" means a
charge against a particular Owner and the Owner's Lot or Cabin Interest for purpose of
reimbursing the Master Association for costs and expenses incurred by the Master Association in
connection with the enforcement of any provision hereof or the remedying of any violation by
the Owner or an Occupant of this Master Declaration or any amendment hereto or any
Supplemental Declaration, the Articles, Bylaws, Master Rules and Regulations, or Design
Guidelines, or any approvals granted by the Design Review Committee, or for other purposes set
forth in the Master Declaration, pursuant to Section 152.10 hereof, together with late charges and
interest as provided for herein. Reimbursement Assessment shall include without limitation any
Common Expense caused by the misconduct of any Lot or Cabin Interest Owner or of such
Owner's Occupants.
2.522.54 Shared Driveway. "Shared Driveway" means a driveway constructed
within a Shared Driveway Easement depicted on the Plat or on any Supplemental Plat.
2.532.55 Special Assessment. "Special Assessment" means a charge against an
Owner and the Owner's Lot or Cabin Interest for purposes of reimbursing the Master Association
for costs and expenses incurred or to be incurred by the Master Association for the purpose of
paying for the construction, reconstruction, repair, maintenance or replacement of capital
improvements to or upon or serving the Common Interest Community, the costs of which were
not included in a Regular Assessment, or for excess reconstruction costs or other extraordinary
expenses, or to acquire Association Property, or for funding any operating deficit of the Master
Association, as authorized by the Executive Board from time to time as provided herein. Special
Assessments shall be based on a Budget adopted by the Executive Board in accordance with
Section 15.72.8 below.
2.542.56 Special District. "Special District" means any special district that may be
formed under the Colorado Special District Act (C.R.S. Section 32-1-201 et seq.) to assist in
constructing, operating, maintaining, improving and/or replacing certain improvements within
the P.U.D., including without limitation the Landis Creek Metropolitan Districts No. 1 and No.
2, and the Spring Valley Sanitation District, as applicable.
2.552.57 Subassociation. "Subassociation" means any Colorado nonprofit
corporation, and its successors and assigns, organized and established by Declarant pursuant to
or in connection with any Supplemental Declaration.
2.562.58 Subassociation Common Area. "Subassociation Common Area" means
all real property interests (not just fee title and leasehold interests) and the Improvements or
amenities and personal property thereon which may from time to time be owned, leased or
maintained by a Subassociation or otherwise held by a Subassociation for the use, enjoyment and
benefit of the members of such Subassociation or some of them.
2.572.59 Supplemental Declaration. "Supplemental Declaration" means an
amendment to this Master Declaration which annexes real property to the Common Interest
Community, subjects such real property to this Master Declaration, and sets forth such
amendments to the Master Declaration and such additional covenants, conditions, uses and
restrictions as may be applicable to the annexed property, executed by Declarant and Recorded
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in the Office of the Clerk and Recorder of the County, and any Recorded amendments thereto.
In the discretion of Declarant, Cabin Interests may be created with respect to Cabin Lots annexed
to the Common Interest Community by Supplemental Declaration(s). A Supplemental
Declaration may also be used to create a Cabin Interest program for Cabin Lots that are already
within the Common Interest Community.
2.582.60 Supplemental Plat. "Supplemental Plat" means any land survey plat
which is Recorded by Declarant for the purpose of annexing the real property described therein
to the Common Interest Community, and any Recorded amendments to such Supplemental Plat.
Supplemental Plats shall include, without limitation, those Final Plats of subsequent phases of
Spring Valley Ranch, or those portions of such Final Plats, as are made subject to this Master
Declaration from time to time by Supplemental Declaration.
2.592.61 Water System. "Water System" means the domestic and irrigation water
delivery and augmentation system that serves the Common Interest Community and the Club
Property, including all related water rights, and all pumps, water collection and delivery
equipment and pipes, conduits, ponds and other water transmission components.
2.602.62 Wildfire Mitigation Plan. "Wildfire Mitigation Plan" means the Wildfire
Mitigation Plan described herein, which is attached to and made a part of the Master Rules and
Regulations, as it may be amended from time to time, which Wildfire Mitigation Plan is
incorporated in this Master Declaration by this reference. All Owners and Occupants shall
comply at all times with the terms and provisions of said Wildfire Mitigation Plan.
2.635 Wildlife Mitigation Plan. "Wildlife Mitigation Plan" means the Wildlife
Mitigation Plan, which is described herein and as may be supplemented by the Master Rules and
Regulations, which Wildlife Mitigation Plan is incorporated in this Master Declaration by this
reference. All Owners and Occupants shall comply at all times with the terms and provisions of
said Wildlife Mitigation Plan.
ARTICLE III
GENERAL RESTRICTIONS APPLICABLE TO THE
COMMON INTEREST COMMUNITY
It is the intention of Declarant to establish and impose a common and general plan for the
improvement, development, use and occupancy of the Common Interest Community, all in order
to enhance the value, desirability, and attractiveness of the Common Interest Community and to
promote the marketing, development and enjoyment thereof. Accordingly, Declarant hereby
declares the entire Common Interest Community, including but not limited, to all Lots and Cabin
Interests, shall be owned, held, used, occupied, improved, altered, maintained, conveyed, leased,
encumbered and enjoyed subject to the following covenants, conditions, restrictions,
reservations, easements, rights and other provisions, and to the further requirements and
restrictions set forth in the Design Guidelines, subject to such Declarant exemptions as may be
set forth herein.
3.1 Master Development Control. Except as otherwise expressly provided in this
Master Declaration or in any Supplemental Declaration, (i) no residence, building, structure,
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fence, wall, landscaping or other Improvement shall be commenced, made, done, permitted,
located, erected, improved, altered or removed within the Common Interest Community without
the prior written approval, of the Design Review Committee, and (ii) all subsequent additions to
or changes or alterations in any residence, building, structure, fence, wall, landscaping or other
Improvement, including without limitation exterior color scheme, and all changes in the grade of
Lots, shall also be subject to the prior written approval of the Design Review Committee. No
modifications from the approvals granted by the Design Review Committee shall be made
without the prior written approval of the Design Review Committee. Notwithstanding the
foregoing, in the event of an emergency or the sudden occurrence of unanticipated conditions
which threaten the health, safety or physical well-being of Persons or property within the
Common Interest Community, the Executive Board and/or the Design Review Committee shall
have the authority (without the prior approvals described above), to take whatever remedial
action may be necessary anywhere in the Common Interest Community to protect Persons and
property until such time as applicable notice and/or approval procedures can reasonably be
utilized. Further notwithstanding the foregoing, Design Review Committee approval shall not be
required for Improvements made by Declarant in the exercise of any development rights or
special Declarant rights reserved by Declarant in this Master Declaration or in any Supplemental
Declaration.
3.2 Violation of Law, Insurance, Etc. No Owner or Occupant or Person shall do
any act or cause or permit anything to be done or kept in or upon a Lot or a residence constructed
thereon, or the Association Property, which would result in the increase of, or cancellation of,
insurance maintained by the Master Association or would be in violation of any federal, state,
town or other law, ordinance, regulation or code of any governmental body having jurisdiction,
or of any Master Rule or Regulation promulgated by the Master Association, or of any provision
of this Master Declaration.
3.3 General Maintenance of Common Interest Community. All property within
the Common Interest Community, including without limitation all Lots (including unimproved
Lots, and Lots on which Improvements are under construction), Association Property,
Improvements, and landscaping, shall be kept and maintained in a clean and attractive condition
and in good order, condition and repair.
(a) Except as specifically set forth in this Section or in a Supplemental
Declaration, maintenance, repair, and upkeep of each Lot and the Improvements thereon
(including attractive painting and refinishing thereof at regular intervals) shall be the
responsibility of the Owner of the Lot or the Owners of the Cabin Interests into which a
Lot may be divided. Such maintenance and repair shall be performed by each Owner
whenever necessary or appropriate and at regular intervals in order to keep the Lot and
Improvements in substantially the same condition and appearance as existed at the time
of completion of construction, subject to normal wear and tear that cannot be avoided.
Said Owner obligations shall include all maintenance, repair or replacement required as a
consequence of any fire, wind, vandalism, theft or other casualty. With respect to a Lot,
this maintenance obligation extends to all lands and landscaping within the Lot lines, all
landscaping on any adjacent street right-of-way that is bounded by the front Lot line, the
paved portion of the street, and the continuation of the side Lot lines between the two,
and all landscaping on any land lying between the Lot and the water's edge of any natural
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or manmade body of water, excepting any areas or elements that are to be maintained by
the Master Association or a Special District. Unsightly conditions on a Lot shall
constitute a nuisance under this Master Declaration.
(b) Maintenance, repair, and upkeep of Association Property, including any
Improvements and landscaping thereon, shall be the responsibility of the Master
Association.
(c) The individual Owners and the Executive Board shall each use a
reasonable standard of care in providing for the repair, management and maintenance of
the properties for which they are responsible so that the entire Common Interest
Community will reflect a pride of ownership.
(d) If an Owner fails to perform any of such obligations within ten (10) days
following receipt of a written notice from the Design Review Committee or the Executive
Board requesting the same, the Design Review Committee or the Executive Board shall
have the right to enter upon the Lot of the Owner to cure the violation, to perform any
needed repairs or maintenance, or to otherwise cause compliance with this Section, and to
levy and collect a Reimbursement Assessment upon the Owner and its Lot (or Cabin
Interest) for the costs and expenses incurred by the Master Association in connection
therewith. The Design Review Committee or the Executive Board shall have no right to
enter into the interior of a residence without the consent of the Owner except in the case
of a clear emergency.
3.4 Residential Use and Occupancy. Each Lot shall be improved, occupied and
used only for private single-family residential purposes, except that multi-family or lodge units
may be built and occupied upon the Club Property. The creation of Cabin Interests with respect
to certain Lots in the Common Interest Community shall not violate this restriction. No
Accessory Dwelling Units (as defined in the Garfield County Land Use and Development Code)
shall be allowed on any Lot.
No structures whatsoever, other than those permitted by the P.U.D. Plan or by other
applicable Garfield County zoning regulations and approved in writing by the Design Review
Committee, shall be erected, placed or permitted to remain on any Lot. No office, business
and/or commercial structures shall be permitted within the Common Interest Community except
in those areas where such uses are allowed by applicable provisions of the P.U.D. Plan. No
business, professional or other non-residential or commercial use shall be made of any Lot, or
conducted in any residence constructed on a Lot, excepting in-home businesses or occupations
which do not involve (i) employees, (ii) the solicitation or invitation of the general public, or
(iii) the servicing of customers, and which activities are conducted entirely within the residence
and do not cause any additional traffic or parking within the Common Interest Community or
otherwise create a nuisance for neighboring Lots or the Common Interest Community. The
leasing of a residence in compliance with the provisions of Section 3.357 below shall not violate
this restriction. No equipment or materials incident to any business or occupation (whether
conducted within the residence or elsewhere) shall be kept or stored on any Lot except within the
residence, garage, barn, or other outbuilding approved by the Design Review Committee.
Notwithstanding the foregoing, activities normally associated with the sale by the Declarant or
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an Owner of an improved or unimproved Lot or a Cabin Interest shall be allowed, subject to any
limitations contained in this Master Declaration.
3.5 New Construction Required; No Temporary Buildings or Occupancy. All
Improvements constructed within or placed upon the Common Interest Community shall be new.
No used or temporary house structure, tent, teepee, or non-permanent out-building (specifically
including without limitation mobile homes and trailers) shall ever be placed, erected or allowed
to remain within the Common Interest Community except temporary structures or construction
trailers used for construction purposes during the construction of a residence, which temporary
facilities shall be removed immediately following completion of construction and in any event
no later than 18 months following commencement of construction or remodeling unless a written
extension is granted by the Design Review Committee. No trailer, mobile home, incomplete
residence or other structure other than a residence completed in accordance with approved plans
shall ever be used or occupied at any time for residential purposes, either temporarily or
permanently. No completed residence on a Lot shall be occupied in any manner until all
provisions of this Master Declaration and of the Design Guidelines and all conditions of
development approval have been complied with, and a Certificate of Compliance has been issued
pursuant to Section 6.17 below. The work of constructing, altering or remodeling any residence
on a Lot or any other Improvement within the Common Interest Community shall be prosecuted
diligently from the commencement thereof until the completion thereof.
Notwithstanding the foregoing, existing structures may remain or be relocated within the
Common Interest Community, in the discretion of Declarant. In addition, used materials (e.g.,
barnwood) and/or structures may be permitted on a Lot if (i) the Owner makes a specific written
request to the Design Review Committee for approval of such used materials and/or structures,
and (ii) the Design Review Committee determines that the criteria set forth in the Design
Guidelines have been met and specifically approves such request in writing.
All construction within Spring Valley Ranch P.U.D. shall in all respects be in accordance
with the International Fire Code, as amended and in effect. Prior to commencement of any new
construction involving excavation, the Owner of the Lot shall obtain a site specific geological
and geotechnical analysis; and all recommendations of such analysis shall be followed during
construction.
3.6 Building Envelopes. See the above definition of this term for the general
regulations applicable to Building Envelopes.
3.7 Design Guidelines. All excavation and other land disturbance, construction,
landscaping and irrigation activities within the Common Interest Community shall be strictly
governed by the procedures, standards, guidelines, restrictions and requirements set forth in the
Design Guidelines. A violation of the Design Guidelines shall constitute a violation of this
Master Declaration and may be enforced by the Design Review Committee or Executive Board
in accordance with the terms hereof.
3.8 Annoying Light, Sound or Odor. All exterior lighting will be the minimum
amount necessary and all exterior lighting will be directed inward and downward, towards the
interior of the subdivision, except that provisions may be made to allow for safety lighting that
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goes beyond the property boundaries. Lightpoles will be 12-15 feet in height or less, utilizing no
more than 150 watts per lightpole. All exterior lighting installed or maintained on any Lot or on
any Improvement located on a Lot shall be placed so that the light source is screened or shielded
from the residence on any other Lot and from the Association Property, and shall comply with
the Garfield County Lighting Code. No light shall be emitted from any part of the Common
Interest Community (including any Lot) which is unreasonably bright or causes unreasonable
glare. Without limiting the generality of the foregoing, no spotlights, floodlights or other high-
intensity lights shall be permitted within the Common Interest Community without the prior
written approval of the Design Review Committee. The Design Guidelines may contain
additional standards for exterior lighting including, without limitation, standards for hue and
intensity.
No sound shall be emitted from any part of the Common Interest Community (including
without limitation any Lot) which is unreasonably loud or annoying to others, and no odor shall
be emitted from any part of the Common Interest Community (including without limitation any
Lot) which is noxious or unreasonably offensive to others. Again, without limiting the generality
of the foregoing, no exterior speakers, horns, whistles, bells (excepting chimes), or other sound
devices, other than security devices used exclusively for security purposes, shall be located or
used within the Common Interest Community except with the prior written approval of the
Design Review Committee.
The Executive Board, in its sole discretion, shall have the right and authority to determine
the existence of any violation of this Section including the reasonableness of any light, sound or
odor.
3.9 Noxious or Offensive Activities; Nuisances; Construction Activities. No
noxious or offensive activity shall occur or be allowed at any time on any property within the
Common Interest Community, nor shall anything be done or placed thereon which is or may
become a nuisance or cause an unreasonable embarrassment, disturbance, or annoyance to
Owners, Occupants, Declarant or the Master Association; or which unreasonably interferes with
the peaceful enjoyment or possession and proper use of the Common Interest Community, or any
part thereof, by Owners or Occupants. Any activity on a Lot which interferes with satellite dish,
television, cable or radio reception on another Lot shall be deemed a nuisance and shall be a
prohibited activity. As used herein, the term "nuisance" shall not apply to any activities of
Declarant which are reasonably necessary or appropriate to the development, improvement,
maintenance, marketing and/or sale of the Common Interest Community or any part thereof. The
Executive Board, in its sole discretion, shall have the right and authority to determine the
existence of any nuisance or unreasonable embarrassment, disturbance or annoyance under this
Section.
Each owner shall comply with the Master Rules and Regulations and the requirements of
all health authorities and other governmental authorities having jurisdiction over the Common
Interest Community. Normal construction activities and parking, during daylight hours, in
connection with the building of Improvements on a Lot shall not be considered a nuisance or
otherwise prohibited by this Master Declaration unless they are in violation of the Design
Guidelines or other requirements of the Design Review Committee, but Lots and Association
Property shall be kept in a neat and tidy condition during construction periods, trash and debris
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shall not be permitted to accumulate, and supplies of brick, block, lumber and other building
materials shall be piled only in such areas as may be approved by the Design Review Committee.
In addition, construction equipment and building materials may only be stored or kept within the
Common Interest Community during and in connection with the construction of Improvements
thereon, and then may be kept only in areas approved by the Design Review Committee, which
also may require screening of the storage areas. All such equipment and materials shall be
removed immediately following completion of construction.
3.10 No Hazardous or Unsafe Activities. No activity shall be conducted on, and no
Improvement shall be constructed on, any property within the Common Interest Community
which is or might be unsafe or hazardous to any Person or property. Without limiting the
generality of the foregoing, and except as allowed below, no explosives, gasoline, fireworks, or
other volatile and/or incendiary materials or devices or any materials deemed hazardous or toxic
substances under applicable environmental laws, rules, or regulations shall ever be used, kept,
stored, permitted to remain or be released or disposed of on any Lot or elsewhere within the
Common Interest Community. Gasoline or fuel for an Owner'’s lawn mower, snowblower, and
the like may be maintained on an incidental basis in an enclosed structure on a Lot in an amount
not to exceed 10 gallons.
3.11 No Woodburning Fireplaces or Stoves; Outside Burning; Fire Hazards. No
woodburning fireplaces or woodburning stoves shall be permitted within the Common Interest
Community. No exterior fires shall be lighted or permitted on any property within the Common
Interest Community except in a contained barbecue unit while attended and in use for cooking
purposes or as a part of the operation and maintenance of a ditch or part thereof. No Owner shall
cause or permit any condition on his Lot which creates a fire hazard or is in violation of fire
prevention regulations, or which would increase insurance rates for Association Property or for
other Owners. Notwithstanding the foregoing, the Declarant and any Special District that serves
the Common Interest Community shall have the right to perform burning activities in connection
with the development, marketing and maintenance of the Common Interest Community.
3.12 No Firearms or Hunting. The use or discharge of firearms, including but not
limited to BB guns and pellet guns, on any part of the Common Interest Community (including
without limitation the Lots) is expressly prohibited. Hunting on any part of the Common Interest
Community (including without limitation the Lots) is expressly prohibited.
3.13 No Unsightliness; Outside Personal Property Storage and Clothes Drying.
All unsightly structures, facilities, equipment, objects, and conditions, all sporting equipment
(e.g., skis, snowb6oards, bikes, mountain bikes, kayaks, etc.), and all snow removal, garden or
maintenance equipment except when in actual use, shall be kept in an enclosed structure or .in a
screened area approved in writing by the Design Review Committee. Tasteful patio furniture
and accessories, barbecue grills, and playground equipment and other outside personal property
approved in writing in advance by the Design Review Committee, may be kept on the side or in
the rear of a Lot and must be kept in an attractive and good condition. No laundry or wash shall
be dried or hung outside on any Lot, excepting in the yard area behind a residence which is
screened from view from streets and other residences within the Common Interest Community
by screening approved in writing by the Design Review Committee, and then only on portable
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outdoor clothes-drying facilities approved in writing by the Design Review Committee, which
facilities must be stored indoors when not in use.
3.14 Vehicle Parking, Storage, Operation and Repair.
(a) Subject to applicable laws, rules and regulations, passenger automobiles
(including without limitation vans and SUVs) and one ton or smaller pickup trucks may
be parked in designated parking areas on the streets within the Common Interest
Community.
(b) No boats, trailers, buses, motor homes, mobile homes, campers (on or off
supporting vehicles), snowmobiles, recreational vehicles, all terrain vehicles, trucks,
industrial or commercial vehicles (both cabs or trailers), abandoned or inoperable
vehicles (as defined below), or any other similar vehicles (excepting passenger
automobiles and one ton or smaller pick-up trucks shall be parked or stored on a street or
upon any Lot in the Common Interest Community. The Master Association shall
establish and maintain a designated secure area or facility for the storage of such
recreational vehicles, and shall promulgate appropriate fees, rules and regulations
governing the use thereof.
(c) No motor vehicle of any kind shall be maintained, repaired, repainted,
serviced or rebuilt on Association Property or on any Lot except within a completely
enclosed garage which fully screens the sight and sound of the activity from the streets
and other Lots and Association Property. This restriction shall not prevent the non-
commercial washing and polishing of vehicles and boats, together with activities
normally incident thereto.
(d) No more than two (2) permitted vehicles (passenger automobiles and/or
one ton or smaller pick-up trucks) shall be parked at any time in the driveway of any Lot,
except during special occasions and then only for the duration thereof. Permitted
vehicles shall not be parked in any location on a Lot except the driveway or an enclosed
garage.
(e) Notwithstanding the foregoing, vehicles may be temporarily parked on
driveways on Lots and on streets within the Common Interest Community for loading,
delivery or emergency purposes, but only for the time required to accomplish such
purpose, and as necessary on a daily basis for the construction, maintenance or servicing
of Improvements within the Common Interest Community.
(f) An "abandoned or inoperable vehicle" shall mean any motorized vehicle
which does not display a current motor vehicle license, is on blocks or which has not
been driven under its own propulsion for a period of one (1) week or longer (excepting
otherwise permitted vehicles parked by Owners or Occupants on their Lot driveways
while on vacation or during a period of illness), or which does not have an operable
propulsion system within the vehicle.
(g) In the event that the Executive Board or the Design Review Committee
shall determine that a vehicle is abandoned or inoperable, or is otherwise in violation of
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the provisions of this Section, a written notice of violation describing said vehicle shall
be personally delivered to the vehicle owner (if such owner can be reasonably ascertained
and located) or shall be conspicuously placed upon the vehicle (if the owner cannot be
reasonably ascertained or located), and if the offending vehicle is not removed within
seventy-two (72) hours thereafter, the Executive Board or Design Review Committee (as
the case may be) shall have the right to remove and store the offending vehicle, or cause
the vehicle to be removed and stored, at the sole expense of the owner of the vehicle if
the vehicle is located on a street, or at the sole expense of the Owner of the Lot on which
the vehicle is located, and to enter upon an Owner's Lot for such purpose, all without
liability on the part of the Executive Board or the Design Review Committee.
(h) Snowmobiles, motorcycles, trail bikes, minibikes, dirt bikes, all-terrain
vehicles, and similar motorized vehicles shall not be used or operated (but may be
transported on trailers) within the Common Interest Community, except that, motorcycles
properly licensed for operation on public roads may be used on streets within the
Common Interest Community. The Master Association shall have the authority to adopt
Master Rules and Regulations governing the type and use and storage of golf carts within
the Common Interest Community. Notwithstanding the- foregoing, Declarant, the Master
Association and/or the Club Property Owner may operate such recreational vehicles
within the Common Interest Community solely for maintenance, construction, security or
similar purposes or in emergency circumstances.
(i) Pursuant to the Declaration of Easements and Rights, authorized users of
the Club Property shall have the right to operate golf carts on golf cart paths within the
Common Interest Community. The owner of the streets within the Common Interest
Community shall have the right to adopt rules and regulations governing the use of golf
carts on such streets, and the Master Association shall have the right to adopt Master
Rules and Regulations governing the use and storage of golf carts on other areas
(including the Lots) within the Common Interest Community.
(j) Notwithstanding anything in this Section 3.145 to the contrary, nothing in
this Section 3.145 shall be deemed to prohibit or impair the right to parking of any
vehicle, the owner of which has the statutory right to park within the Common Interest
Community pursuant to Section 106.5(1)(d) of the Act.
3.15 Garages. All garage doors shall be kept closed when not in use. No garage shall
be permanently enclosed, and no portion of a garage originally intended for the parking of an
automobile shall be converted into living space or storage space without the express prior written
approval of the Design Review Committee.
3.16 Restrictions on Equipment, Tanks, Antennae, Satellite Dishes, Etc. Heating,
air conditioning (including swamp coolers), air movement, wind collection, or refrigeration
equipment must be screened from the view of neighboring properties and must receive the prior
written approval of the Design Review Committee. It is expressly understood that except in
extenuating circumstances, as determined by the Design Review Committee, only central air
conditioning will be allowed within the Common Interest Community. The use of solar energy
systems (both passive and active) within the Common Interest Community is encouraged,
23
provided such systems comply with governmental guidelines for residential uses and meet the
same architectural criteria as are applied to other Improvements within the Common Interest
Community, and are approved in advance by the Design Review Committee. No tanks of any
kind, whether elevated or buried, shall be erected, placed or permitted to remain upon any Lot or
Association Property except in compliance with applicable federal and state regulations, and then
only with the prior written consent of the Design Review Committee. Any approved tank must
be located underground or adequately concealed from view by fencing or screening approved by
the Design Review Committee.
If an Owner wishes to install an antenna to receive video programming, the Owner shall
notify the Design Review Committee in writing of the proposed installation and location thereof
at least ten days before the installation. The antenna installation and location shall comply with
all fire, electrical and other applicable safety codes, and the installing Owner shall to the extent
feasible install the antenna in a location that minimizes its visibility from neighboring Lots,
Association Property, or Club Property. The installing Owner shall be obligated to paint the
antenna so that it blends into the background against which it is mounted and to plant and
maintain such reasonable landscaping as will screen the antenna, to the extent feasible, from
neighboring Lots, Association Property and the Club Property. Provided always, that in the
event that in any particular situation any of the foregoing requirements or restrictions cause an
unreasonable delay or cost in the installation, maintenance or use of the antenna, or prevent the
reception of acceptable quality signals, said requirements or restrictions shall be invalid as they
apply to that particular situation.
Subject to the Telecommunications Act of 1996 and the regulations promulgated
thereunder, satellite dishes that exceed one meter in diameter, and MDS antennas that exceed one
meter in diameter or diagonal measurement, shall not be allowed within the Common Interest
Community. Mast antennas that extend higher than 12 feet above the roof line and antennas that
are not used to receive video programming shall only be permitted within the Common Interest
Community if they receive the prior written approval of the Design Review Committee as to
design, location and screening from neighboring Lots, Association Property, and Club Property.
3.17 Restrictions on Mining or Drilling. No property within the Common Interest
Community shall be used for the purpose of mining, quarrying, drilling, boring, or exploring for,
developing or removing, water, geothermal resources, oil, gas, or other hydrocarbons, minerals,
rocks, stones, gravel, or earth, except drilling, exploring for, removing, distributing or storing
underground water by Declarant or the Master Association. Nothing contained herein shall be
construed to limit the rights of the owners of mineral interests severed from the surface of any
portion of the Common Interest Community prior to the recording of this Master Declaration.
3.18 Excavations. No excavation or other earth disturbance shall be performed or
permitted within the Common Interest Community except in connection with the construction of
Improvements, and then only with the prior written approval of the Design Review Committee.
Upon completion of construction, openings in the ground shall be backfilled and compacted and
all disturbed ground shall be graded and landscaped in accordance with the Design Guidelines
and the requirements of the Design Review Committee.
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3.19 No Interference with Waterways, Drainage or Irrigation Systems, or with
Wetlands/Riparian Habitats. No Owner or Occupant shall construct, install, maintain or
permit any fence or other improvement or obstruction or plant trees or take any other action
which damages or interrupts or interferes in any way with (i) the normal flow of water through
and along waterways and water features within the Common Interest Community, (ii) any
irrigation ditch, lateral, lake, pond or other water collection, storage or distribution system within
or serving the Common Interest Community or the Club Property, (iii) normal drainage patterns
within the Common Interest Community or the Club Property, or (iv) wetlands areas or within 75
feet of the high water mark of riparian corridors, subject always to the rights of owners of ditches
and other water rights and the requirements of the Design Review Committee. The Master
Association shall have the authority to take such action as may be necessary to abate or enjoin
any such damage or interference, and shall have the right to enter upon a Lot for purposes of
correcting or removing the same, and any costs incurred by the Master Association in connection
with such abatement, injunctive or corrective activities shall be assessed to the subject Lot
Owner in the form of a Reimbursement Assessment.
3.20 Lakes, Ponds, Creeks, Ditches. No swimming or boating or ice skating
activities shall be conducted or allowed on any lakes, ponds, creeks or ditches within the
Common Interest Community, excepting in recreational areas within Association Property that
may be established from time to time by the Master Association in its sole discretion, and then
subject to such Master Rules and Regulations as may be adopted by the Executive Board.
Fishing may be allowed in designated areas, but only in the sole discretion of the Master
Association, and then subject to such Master Rules and Restrictions as may be adopted by the
Executive Board.
3.21 Lake Banks; Beaches. All lake banks within the Common Interest Community
shall be properly sodded by the adjacent property owner promptly following completion of
construction of Improvements on the adjacent property, unless the Design Review Committee
otherwise directs in writing. No beach or sandy area contiguous to any lake, pond or canal shall
be created within the Common Interest Community without the prior written approval of the
Design Review Committee and any appropriate Governmental authority
3.22 Fences and Walls. These fencing restrictions shall not apply to retaining walls,
debris flow and rockfall barriers or other engineered structures necessary for the development
and protection of structures and common elements. Fencing is restricted throughout Spring
Valley Ranch to facilitate wildlife movement, to optimize habitat availability, and to reduce
wildlife mortality. Owners and Occupants shall comply with the following restrictions:
(a) Perimeter fences around Lots are prohibited.
(b) Except as approved by the Association with regard to horse enclosures, in
residential zone districts all fencing shall be contained within the designated Building
Envelopes pursuant to the Design Guidelines and shall not exceed 48 inches in height.
Fenced areas may not exceed the following area for each zone district:
(i) Residential/Mountain District – the area of the building envelope
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(ii) Residential/Ranch District – max. 15,000 sf.
(iii) Residential/Estate District – max. 10,000 sf.
(iv) Residential/Cabin District – max. 5000 sf.
(v) Residential/Pasture District – the area of the building envelope
(vi) Privacy fences or walls attached to the residence in any residential district
shall be permitted to enclose a maximum area of` 4,500 square feet of patio, lawn or
similar areas, for purposes of screening lawns, patios and similar features within the
Building Envelope on the Lot. Wildlife-proof fences are permitted to protect small
garden plots, which must be confined to within the Building Envelope.
(c) Except for temporary fencing to protect golf greens and tees, fences within
all Open Space Districts, including fencing to prevent domestic livestock from entering
the PUD or any area therein, shall be three-strand fences constructed and maintained in
accordance with guidelines of the Colorado Division of Wildlife, and Colorado law.
(d) Any existing internal barbed water fences used in the past ranching
operations shall be removed and may be replaced by three-strand fences constructed and
maintained in accordance with guidelines of the Colorado Division of Wildlife and
Colorado law.
(e) Fenced kennels or dog runs shall be permitted as provided herein.
(f) Lots within areas in which horses are allowed shall be permitted to have
fenced horse enclosures and turn-out areas as approved by the Design Review
Committee, which fencing must meet Colorado Division of Wildlife standards. Horses
shall be kept and maintained within these fenced enclosures.
No other fences or walls shall be permitted on Lots within Spring Valley Ranch unless
expressly authorized in writing by the Design Review Committee.
3.23 Tree and Natural Shrub Preservation. All Improvements within the Common
Interest Community shall be located, designed, and constructed so as to preserve and protect
trees and natural shrubs. Unless otherwise required by the Wildfire Mitigation Plan, in order to
conserve the natural beauty of the area, no existing trees or natural shrubs (e.g., pine, cedar,
piñon, other evergreens, gamble oak or sage brush) may be removed or trimmed except with the
prior, written approval of the Design Review Committee. This restriction shall not apply to the
removal or trimming of dead or diseased vegetation, or to essential clearing by an Owner in
connection with the construction of a residence (but not other Improvements) on a site previously
approved by the Design Review Committee. Any violation of this Section shall subject the
offending Owner to such penalties, fines and/or other conditions as the Design Review
Committee considers appropriate, including without limitation the withdrawal or modification of
previously granted development approvals, or the requirement that replacement trees or shrubs of
equivalent or different size and type be planted and maintained by the Owner.
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3.24 Use of Easement Areas; Utility Installation. All easements shown on a Plat or
Supplemental Plat covering any portion of the Common Interest Community have been created
or reserved for the purposes indicated on such Plat and/or in this Master Declaration. No Owner
or Occupant may erect any structure of any type whatsoever in such easement areas, nor may an
Owner or Occupant use the surface of such easement areas for any private use, other than
landscaping which will not interfere with the use of said easement by the Persons or entities for
whose benefit it has been created or reserved and which receives the prior written approval of the
Design Review Committee.
With respect to easements created for access and/or utility purposes either by the terms of
this Master Declaration or any other Recorded agreement or on a Plat, any and all bona fide
public and private utility service companies, Special Districts, and the Club Property Owner (but
only to the extent set forth in the Declaration of Easements and Rights), shall have the right of
access, ingress, egress, and use of such easement areas for the installation, operation and
maintenance of utility facilities serving the Common Interest Community and/or the Club
Property, subject to the following limitations. Except as to special street lighting or other aerial
facilities which may be required by the County, no aerial utility lines or facilities of any type
(except meters, risers, service pedestals and other surface installations necessary to maintain or
operate appropriate underground facilities) shall be erected or installed within the Common
Interest Community, whether upon Lots, Association Property, easements, streets, or rights-of-
way of any type, either by a utility company, a Special District, an Owner, the Master
Association, the Club Property Owner or any other person or entity (including but not limited to
any person owning or acquiring any part of the Common Interest Community) and all utility
lines and facilities (including but not limited to water, sewer, gas, electricity, telephone, and
cable tv) shall be buried underground. Provided, that during the construction of a residence on a
Lot a temporary overhead power line may be installed which shall be promptly removed upon
completion of construction.
3.25 Landscaping, Irrigation. No landscaping shall be performed on any Lot or on
Association Property unless a landscaping plan therefore has received the prior written approval
of the Design Review Committee, and all landscaping shall comply with the Design Guidelines.
No lawn or other landscaping shall be permitted outside of the Building Envelope on a Lot. A
landscaping plan for each Lot must be, approved by the Design Review Committee before
construction is commenced on the residence on that Lot. Such landscaping plan must include
landscaping to the waterline or any abutting lake or pond or ditch and to the pavement edge of
any abutting road or parking area. Any substantial change in the type or location of approved
landscaping vegetation shall require the further approval of the Design Review Committee. No
artificial grass, plants or other artificial vegetation shall be placed or permitted to remain within
the Common Interest Community (except indoors) without the prior written approval of the
Design Review Committee.
All irrigation practices within the Common Interest Community shall be governed by the
Design Guidelines. Each Lot shall be allowed a maximum amount of irrigated area, as more
specifically set forth in the Design Guidelines.
Each Owner shall diligently maintain, trim, weed, cultivate, husband, protect, preserve
and otherwise keep in a healthy and attractive condition the shrubs, trees, hedges, grass, planters,
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gardens and other landscaping upon or abutting the Owner's Lot, including, without limitation,
the removal of dead and diseased branches and brush and the performance of other tasks
necessary to remove or eliminate material which constitutes or creates a fire hazard or nuisance.
Each Owner shall also maintain all paved, concrete and other synthetically surfaced areas
within the Owner's Lot, including but not limited to, driveway and parking areas, in good
condition and repair.
3.26 Tennis Courts and Basketball Goals. Tennis courts, basketball goals,
backboards and nets shall not be allowed unless they comply with the Design Guidelines and the
written approval of the Design Review Committee is first obtained. Any permitted basketball
backboards must be professionally manufactured, and must be installed on black poles, with a
white or clear backboard. No garage or roof mounted basketball backboards shall be permitted.
3.27 Swimming Pools, Spas, and Related Equipment. Pools, spas or hot tubs may
be erected, constructed or installed on Lots within the Common Interest Community, provided
they comply with the Design Guidelines and receive the prior written consent of the Design
Review Committee. If a pool, spa or hot tub is approved, all service equipment shall be fenced
and located in either (a) a side yard between the front and rear boundaries of the residence, or
(b) in the rear yard adjacent to the residence, and shall be adequately screened from any
neighboring Lots, the Association Property, the Club Property, and all streets in the Common
Interest Community.
3.28 Signs and Advertising. With the exception of one entry/identification sign per
Lot during the period of actual construction on the Lot, which sign shall comply with the Design
Guidelines, no sign, poster, billboard or advertising device of any kind shall be allowed or
displayed upon any Lot or any Association Property within the Common Interest Community
except: (a) such signs as may be used by the Declarant in connection with the development,
marketing and sale of Lots or Cabin Interests in the Common Interest Community; (b) such signs
as may be required by legal proceedings, or the prohibition of which is precluded by law;
(c) such signs as may be required for traffic control and for regulation of Association Property;
(d) neighborhood monuments (e.g., entrance and directional signs) which are compatible with
the architecture of the area (e) such other signs as may be specifically authorized and regulated
by the Design Guidelines; and (f) signs, the prohibition of which is prohibited by the Act. All
permitted signs must comply with the Design Guidelines.
3.29 Camping and Picnicking. No camping or picnicking shall be allowed on
Association Property except in areas, if any, that may be designated for such purpose by the
Master Association.
3.30 Soliciting. No soliciting shall be permitted at any time within the Common
Interest Community.
3.31 No Individual Water Wells or Individual Sewage Disposal Systems;
Exceptions. No individual water wells, and no cesspools, septic tanks or other individual
sewage disposal systems, shall be drilled, constructed, maintained or permitted to remain within
the Common Interest Community, except such water and/or septic systems as may be installed
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by Declarant or Declarant's successor, assign or designee or the Master Association or a Special
District to serve the Common Interest Community or portions thereof. Notwithstanding the
foregoing, individual water wells shall be permitted as set forth in the P.U.D Plan. Approval.
Notwithstanding the foregoing, individual sewage treatment systems (“ISTS”) shall be permitted
as set forth in the P.U.D. PlanApproval and as designated on the Final Plat on Lots M1 through
M90 and Lot P1, provided they comply with the Design Guidelines and receive the prior written
approval of the Design Review Committee. Each Owner of a Lot with an allowable ISTS shall
comply with all applicable requirements of the ISTS Operation and Maintenance Plan adopted
by the Landis Creek Metropolitan District, which shall be incorporated into the Design
Guidelines. Each such Owner of a Lot with an allowable ISTSindividual sewage disposal
system shall execute a contract with the Landis Creek Metropolitan District No. 1 for the
performance of such responsibilities. The obligations of such Lot Owners shall be enforceable
by either the Master Association or the Landis Creek Metropolitan District No. 1. In accordance
with the P.U.D Plan, the Master Association shall contract with a third- party operator, who must
be at least a “Class C” operator to operate and maintain the Ranch Lot and Mountain Lot ISTS.
The operator and the contract employing the operator must be acceptable to Garfield County
Board of County Commissioners.
3.32 Regulation of Pesticides. The Design Review Committee may adopt reasonable
rules and regulations governing the use and application of pesticides, herbicides, fertilizers and
fungicides within the Common Interest Community.
3.33 Maintenance of Visibility at Street Intersections. No hedge, shrub, or planting
which obstructs the sight lines between two and six feet above the street shall be placed or
permitted to remain on any corner Lot within the triangular area formed by the street property
lines and the line connecting them at-points twenty-five feet (25') from the intersection of the
street lines or in the case of a rounded property corner from the intersection of the street lines as
extended. The same sight line limitation shall apply to any portion of a Lot lying within ten feet
(10') of the intersection of a street property line with the edge of a driveway pavement. No tree
shall be permitted to remain within the above-described restricted areas unless the foliage line is
maintained at or above six feet (6') above the street intersection elevation to prevent the
obstruction of sight lines.
3.34 Restoration of Improvements in the Event of Damage or Destruction. In the
event of damage to or destruction of any Improvement on any Lot the Owner(s) thereof shall
cause the damaged or destroyed Improvement to be promptly restored or replaced to its original
condition or such other condition as may be approved in writing by the Design Review
Committee, or the Owner(s) shall cause the damaged or destroyed Improvement to be promptly
demolished and the Lot to be suitably landscaped, subject to the approval of the Design Review
Committee, so as to present a pleasing and attractive appearance. Such Improvements shall be
repaired, restored or otherwise demolished and suitably landscaped within such reasonable time
frame as may be established by the Design Review Committee.
3.35 Leases. The leasing/rental of Cabin Interests shall be governed by the Cabin
Interest ownership documents, and shall not be affected by this Section (except that a Cabin
Interest shall not be leased for any term of one week or less). Any Owner shall have the right to
Lease his Lot under the following conditions:
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(a) All Leases shall be in writing, and must cover the entire Lot (i.e., no
Leases of bedrooms alone or otherwise covering less than all of the Lot shall be
permitted).
(b) No lease shall be for a term of less than one yearmonth, and no Owner
may lease a Lot more than six times in any consecutive 12-month period without the
prior written consent of the Executive Board. The foregoing notwithstanding, and Owner
may from time- to- time permit guests to occupy the residence, without consideration,
provided the Master Association is given prior written notice of such occupancy, and
further provided that such guest occupancies (in the aggregate) shall not exceed six
instances in any consecutive 12-month period without the prior written consent of the
Executive Board.
(c) All Leases shall provide (i) that the terms of the Lease and the tenant's
(Occupant's) use of the Lot shall be subject in all respects to the provisions of this Master
Declaration or any pertinent Supplemental Declaration, and the Articles, the Bylaws, and
the Master Rules and Regulations, and the Design Guidelines, (ii) that the Occupant has
received and reviewed copies of said documents, and (iii) that any failure by the
Occupant to comply with any of the aforesaid documents, in any respect, shall be a
default by Occupant under the Lease and a default by Occupant and Owner under said
documents which may be enforced against Occupant and/or Owner by the Executive
Board.
(d) Each Owner shall notify the Master Association immediately upon the
leasing of his Lot and shall provide the Master Association with a copy of the Lease and
with the name and mailing address of the Occupant and the mailing address (if changed)
of the Owner.
(e) Each Owner who leases a Lot shall be responsible for assuring compliance
by the Occupant with all of the provisions of this Master Declaration, any pertinent
Supplemental Declaration, the Articles, the Bylaws, the Master Rules and Regulations,
and the Design Guidelines, and shall be jointly and severally responsible with the
Occupant for any violations thereof by the Occupant.
(f) Each Lease shall expressly provide that the Master Association (via the
Executive Board) shall have the right to give the Occupant written notice that the
Occupant is in violation of one or more of the documents listed in subsection (c) above,
which notice shall specify a period of time (at least 5 days) in which the Occupant may
cure the violation. If the violation continues uncured, or if it is repeated within the
3-month period following the date of the first notice, the Lease shall provide that the
Owner gives to the Master Association an irrevocable power of attorney to act on the
Owner's behalf to give such statutory notices to the Occupant and to take such other
actions as may be necessary or appropriate to terminate the Lease and to evict the
Occupant from the Premises. If a Lease does not contain such provisions, the Owner
hereby irrevocably appoints the Master Association as its attorney-in-fact to act on its
behalf as set forth herein.
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3.36 Right of Entry. During reasonable hours and upon reasonable notice to the
Owner or Occupant of a Lot , any member of the Design Review Committee, any member of the
Executive Board, and any authorized representative of either of them, shall have the right to
enter upon and inspect any Lot , and the Improvements thereon, except for the interior portions
of any occupied dwelling (which shall require the permission of the Owner or Occupant, except
in case of emergency, when no notice or permission shall be required), for the purpose of
ascertaining whether or not the provisions of this Master Declaration (or of any Supplemental
Declaration) and of the Design Guidelines have been or are being complied with, or for the
purpose of exercising any rights or performing any responsibilities (maintenance, repair, etc)
established by this Master Declaration or any Supplemental Declaration, and such individuals
shall not be deemed guilty of trespass by reason of such entry.
3.37 Damage by Owners During Construction. Each Owner is responsible for any
damage caused to roads, streets, ditches, fences, trails, natural or constructed drainage courses,
utilities, Association Property, or to other Lots or Improvements thereon, during the construction
or alteration of Improvements upon the Owner's Lot, including without limitation damage caused
by any construction vehicles using the roads or streets within the Common Interest Community.
Damage shall include any degradation in the appearance or condition of such roads, streets,
Association Property, or other Lots or Improvements. The responsible Owner shall promptly
repair and clean up any such damage, at its sole expense. Each Owner shall also be responsible
for any damage caused by utility cuts in roads, and for washouts and runoff damage caused by
failure to properly install culverts, and to promptly repair any such damage. If the Owner fails to
repair any such damage within 10 days following receipt of a written notice from the Executive
Board requesting the same, the Executive Board shall have the right to perform such repairs on
behalf of the Owner, and to levy a Reimbursement Assessment upon the Owner and its Lot to
recover the costs thereof.
3.38 Restrictions on Resubdivision, Property Restrictions, and Rezoning. Except
as expressly permitted in this Master Declaration or in a Supplemental Declaration by which
additional property is annexed to the Common Interest Community, (i) no Lot shall ever be
further subdivided or replatted by an Owner into smaller Lots, and (ii) no physical portion less
than all of any such Lot, nor any easement or divided interest therein, shall be conveyed,
transferred or encumbered by the Owner, and (iii) no Lot may be combined with any other Lot
nor the boundary lines adjusted between any two Lots.
(a) Declarant reserves the right to subdivide or replat a Lot, or to combine two
Lots owned by Declarant, or to adjust or remove boundary lines between Lots owned by
Declarant, provided any necessary County approvals are obtained, all Declaration and
Plat amendments required by the Act and/or local land use laws are prepared, executed
and Recorded, and the necessary reallocation of Allocated Interests of the Owners is
accomplished. In the case of the subdivision of a Lot into two or more Lots, each Lot
created thereby shall constitute a Lot for purposes of reallocation of Common Expense
liability and voting interests. In the case of the combination of two Lots, such interests
shall be reallocated to reflect the fact that two Lots have been eliminated and one Lot
created in its place, unless the Executive Board requires that the combined Lots continue
to pay two Assessments. All costs relating to the foregoing activities shall be the sole
responsibility and obligation of Declarant, or of the Owner performing the same.
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Declarant's rights under this subsection (a) shall terminate upon the first to occur of
(i) the date which is fifty (350) years after the Recording of this Master Declaration, or
(ii) Declarant's relinquishing of these rights by a Recorded instrument.
(b) The boundaries between adjoining Lots may also be adjusted or removed
(i.e., the Lots combined) by the Owner(s) thereof other than Declarant, if (i) the written
consent of the Executive Board is first obtained, in the sole discretion of the Executive
Board, (ii) all applicable regulations and codes are complied with and all necessary
County approvals are obtained, (iii) the proposed adjustment or removal does not violate
the terms of any document evidencing a security interest in the subject Lots, (iv) all
Declaration and Plat amendments required by the Act and/or local land use laws are
prepared, executed and Recorded, and (v) the necessary reallocation of Allocated
Interests of the Owners is accomplished pursuant to the guidelines set forth above or as
otherwise required by the Executive Board. All costs relating to such activity (including
the attorneys' fees and costs incurred by the Executive Board in reviewing and acting
upon the matter) shall be the sole responsibility and obligation of the Owner(s) applying
for the same.
(c) No Owner of a Lot shall grant or convey any easement rights affecting any
portion of the Lot without the prior written consent of the Executive Board.
(d) No further covenants, conditions, restrictions or easements shall be
Recorded by any Owner (except Declarant in the exercise of its reserved rights) or other
Person against any Lot or any Cabin Interest without the provisions thereof having been
first approved in writing by the Executive Board for consistency with the Master
Declaration, any applicable Supplemental Declaration, and the general plan of
development for the Common Interest Community. Any covenants, conditions,
restrictions or easements Recorded without such approvals being evidenced thereon shall
be null and void. This provision does not apply to Mortgages.
(e) No application for rezoning of any Lot, and no application for any
variance or special use permit for any Lot, shall be filed with any governmental authority
by any Owner (except Declarant in the exercise of any reserved rights) unless the
proposed use of the Lot has first been approved in writing by the Executive Board and the
proposed use otherwise complies with the Master Declaration and any applicable
Supplemental Declaration.
3.39 Health, Safety and Welfare. In the event any uses, activities, or facilities within
the Common Interest Community are deemed by the Executive Board to be an unreasonable
annoyance or nuisance, or to adversely affect the health, safety or welfare of Owners or
Occupants, the Executive Board may amend the Master Rules and Regulations in order to
appropriately restrict and regulate such uses, activities or facilities within the Common Interest
Community. Such rules shall be consistent with the purposes and provisions of this Master
Declaration.
3.40 Implementation and Variances. The Executive Board may implement the
restrictions set forth in this Article 3, or otherwise restrict and regulate the use and occupancy of
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the Common Interest Community and the Lots and Cabin Interests by reasonable Master Rules
and Regulations of general application adopted by the Executive Board from time to time. The
Executive Board may, in its sole discretion and in extenuating circumstances, grant variances
from any of the restrictions set forth in this Article 3 (excepting any such restrictions with respect
to which the Design Review Committee has the authority to grant variances under Section 6.19
below), if the Executive Board determines, in its sole discretion, (a) either (i) that a particular
restriction creates a substantial hardship or burden on an Owner or Occupant, which hardship or
burden was not caused by said Owner or Occupant, or (ii) that a change of circumstances since
the Recordation of this Master Declaration has rendered such restriction obsolete, and (b) that the
activity permitted under the variance, in the judgment of the Executive Board, will not have any
material adverse effect on the Owners and Occupants of the Common Interest Community
(including neighboring Lots) and is consistent with the high quality of living intended to be
promoted hereby throughout the Common Interest Community. When an Owner applies for a
variance, the Board must give at least ten (10) days advance written notice of the variance
hearing, and of the nature of the variance requested, postage prepaid, by certified mail, return
receipt requested, to all Owners of Lots (including Cabin Interests) that are situated within a
radius of 300 feet of the Lot for which the variance is sought, at the current addresses for such
Owners reflected in the Master Association files. The applying Owner must provide the
Committee with an accurate list of the Owners to be so notified. If the foregoing notice
requirements are complied with, it is not necessary that the Owners actually receive the notice
that is mailed to them, such notices being deemed received upon mailing.
No variance shall conflict with the P.U.D. Plan or with ordinances or regulations of the
County. If a variance from the P.U.D. Plan, County laws or regulations is also required in
connection with a matter for which a variance is desired hereunder, it shall be the Owner's
responsibility to obtain such County variance before submitting a variance application to the
Executive Board.
3.41 Declarant Activities. Nothing contained in this Master Declaration is intended or
shall be construed to prevent, restrict, regulate or delay in any way Declarant's right and ability
to develop, improve, maintain, repair, regulate, operate, administer, manage; market, sell, lease,
encumber or dispose of the Common Interest Community, the Lots, the Cabin Interests, the
Association Property, the Annexable Property, additional unspecified real estate, or any part
thereof, including the right to construct Improvements and install signs thereon, all in the
complete discretion of Declarant.
3.42 Landowner Obligations. All owners of land, whether ranch or residence,
have obligations under State law and County regulations with regard to the maintenance of
fences and irrigation ditches, controlling weeds, keeping livestock and pets under control, using
property in accordance with zoning, and other aspects of using and maintaining property.
Residents and landowners are encouraged to learn about these rights and responsibilities and act
as good neighbors and citizens of the County. A good introductory source for such information
is A Guide to Rural Living & Small Scale Agricultural put out by the Colorado State University
Extension Office in Garfield County.
3.43 Recognition of Right-to-Farm. Colorado is a Right-to-Farm State pursuant
to C.R.S. 35-3-101, et.seq. Landowners, residents and visitors must be prepared to accept the
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activities, sights, sounds and smells of Garfield County’s agricultural operations as a normal and
necessary aspect of living in a County with a strong rural character and healthy ranching sector.
All must be prepared to encounter noises, odor, lights, mud, dust, smoke, chemicals, machinery
on public roads, livestock on public roads, storage and disposal of manure, and the application by
spraying or otherwise of chemical fertilizers, soil amendments, herbicides, and pesticides, any
one or more of which may naturally occur as part of a legal and non-negligent agricultural
operations.
ARTICLE IV
ROADS AND STREETS IN COMMON INTEREST COMMUNITY
4.1 Ownership and Maintenance. Declarant reserves the right from time to time to
convey some or all of the platted roads and streets in the Common Interest Community, together
with any associated road drainage easements and facilities, to the Landis Creek Metropolitan
Districts No. 1 and/or No. 2Garfield County for the use of the public, or to a Special District, or
to the Master Association. If the Declarant or the Master AssociationWhatever entity holds title
to a road or street, it shall contract to havebe responsible for the maintenance, repair and
replacement thereof performed by the Landis Creek Metropolitan District No. 1 and/or No. 2, or
although such entity may contract to have such services performed by a third party including, in
the case of Master Association ownership, by a Special District. With respect to any roads or
streets that are not conveyed or dedicated to Garfield County or a Special Landis Creek
Metropolitan District No. 1 and/or No. 2, the Master Association shall formally adopt a
maintenance and repair plan for the maintenance and repair of such privately owned roads or
streets.
4.2 Easement for Access. There is hereby created, granted and reserved for the use
and benefit of Declarant, the Master Association, all Owners and Occupants, and the Club
Property Owner and all Club Members and other authorized users or employees of the Club
Property, perpetual, nonexclusive easements and rights-of-way over, across and along all platted
roads and streets in the Common Interest Community for purpose of access, ingress and egress to
and from their respective properties. No road or street shall be used for access to any lands lying
outside the Common Interest Community, except the Club Property, unless Declarant expressly
grants such access rights to neighboring lands.
4.3 Reserved Declarant Rights. Declarant reserves the following rights with respect
to roads and streets in the Common Interest Community, which rights may be exercised by
Declarant from time to time in its sole discretion, and without requiring the consent of any
Owner or Mortgagee or Special District or the Master Association, to wit:
(a) The right to redesignate, relocate, replat or close any such roads or streets
that have not been conveyed to the County, so long as no Owner is denied reasonable
ingress and egress from its Lot to a public road by reason thereof. In the event Declarant
exercises such right, the access easement over such replatted (etc.) road or street shall
automatically terminate, and if necessary the Master Association or Special District shall
reconvey the original road or street to Declarant.
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(b) The right to limit, restrict or deny entry to and/or access over the roads and
streets or some of them to any person or persons (except Owners and Occupants) who, in
the sole judgment of Declarant, do not have legitimate business in the Common Interest
Community, or who may create or participate in a disturbance or nuisance within the
Common Interest Community, or who is otherwise undesirable, through use of a
controlled or guarded entrance way or limited access gate, or through such other means
and upon such terms and conditions as Declarant may determine to be reasonably
appropriate; the right to control and regulate all forms of vehicular and non-vehicular
traffic and parking on all or some of said roads and streets; the right to require the
removal of any shrub, bush, fence, wall, tree or other item of any sort which might, in the
sole judgment of Declarant, impair, or obstruct a motorist's vision on any road or street
within or adjacent to the Common Interest Community; and the right to adopt and enforce
such other rules and regulations governing the use of such roads and streets as Declarant
may consider necessary or appropriate form time to time.
(c) The right to grant temporary or permanent non-exclusive access easements
over roads and streets (or some of them) in the Common Interest Community for the use
and benefit of lands lying outside the Common Interest Community on such terms and
conditions as Declarant may consider appropriate.
(d) The right to assign any one or more of these reserved rights to the Master
Association or to a Special District.
(e) All of the foregoing rights shall be permissive only, and neither Declarant
nor any assignee of such rights shall have any obligation to exercise any of such rights.
4.4 No Liability for Gatehouses or Entry Gate or Security Patrol. If one or more
gatehouse (manned or unmanned) or limited access entry gates are provided at entrances to the
Common Interest Community, and/or if some form of security patrol is provided within the
Common Interest Community or any part thereof, neither the Declarant, the Master Association,
nor any Special District shall have any liability to any person for any injury, loss or damage of
any kind or nature whatsoever arising from the fact that any gatehouse is not manned or from the
failure of any person staffing a gatehouse or any mechanical or electrical entry system or any
security patrol personnel to prevent or detect a theft, burglary, or any other unauthorized entry
into or activity within the Common Interest Community.
4.5 Rights Appurtenant to Club Property. In addition to the access easement
established in Section 4.2 above, all platted roads and streets in the Common Interest Community
are subject to the access, parking and other rights granted to and enjoyed by the Club Property
Owner and all authorized users, invitees (including the public) and employees of the Club
Property as set forth in the Declaration of Easements and Rights, including without limitation the
right to use such roads and streets for ingress and egress to the Club Property and for parking at,
reasonable times before, during and following golf tournaments and other functions held upon
the Club Property. All such access, parking and other rights shall be subject at all times to such
reasonable rules and regulations as may be promulgated from time to time by the owner or
owners of the roads and streets (i.e., the Declarant, the County, the Master Association or a
Special District) governing the use of and parking upon the roads and streets, provided such rules
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and regulations do not substantially impair the rights granted to the Club Property Owner under
the Declaration of Easements and Rights.
ARTICLE V
WATER AND SEWER SYSTEMS
5.1 Water System. The Water System shall be used as the sole source of potable
water within the Common Interest Community, unless another source is expressly authorized by
the owner of the Water System. The Water System shall be constructed, maintained and
operated in conformance with the rules, regulations, approvals and permitting procedures of all
applicable governmental authorities, and the operation thereof shall be governed by such
reasonable rules and regulations as may be promulgated from to time by the owner/operator of
the Water System. Each Owner shall pay the tap fees and user charges established from time to
time by the owner/operator of the Water System.
No Owner shall make, install, use, maintain or permit to exist any cross connection
between the Water System, including the portion of the Water System that is contained within an
Improvement on a Lot, and any pipe, plumbing, fixture, tank, receptacle, equipment or other
appurtenance on or serving the Owner's Lot that is a source of contaminated or polluted water,
unless the Water System is protected with a backflow prevention assembly that is approved in
advance by the owner/operator of the Water System. No water service connection to any
Improvement shall be installed, maintained or used unless the Water System is protected in the
matter required by the owner/operator of the Water System. Said owner/operator shall
discontinue water service to any Improvements if it is determined that an unprotected cross
connection exists or that a proper backflow prevention assembly has not been installed or tested
or that any such assembly has been removed, bypassed, otherwise rendered ineffective, or
improperly maintained or tested. Service shall not be restored until such conditions or defects
have been corrected to the satisfaction of the owner/operator of the Water System.
Certain of the Lots within the Project will require booster pumps and/or pressure
reducing valves in the Water System serving those Lots. The costs associated with installation of
such booster pumps and/or pressure reducing valves shall be paid by the Lot Owner. For any Lot
which requires a booster pump or pressure reducing valve a note shall be on the Supplemental
Plat for such Lot indicating the need for a booster pump and/or a pressure reducing valves.
5.2 Sewer System. The central sewage collection and treatment system for the
Common Interest Community (excepting Lots with an ISTS) shall be constructed, maintained
and operated in conformance with the rules, regulations, approvals, and permitting procedures of
all applicable governmental authorities, and the operation thereof shall be governed by such
reasonable rules and regulations as may be promulgated from time to time by the owner/operator
of the system. Each Owner shall pay the user charges established from time to time by the
owner/operator of the system.
5.3 Ownership and Maintenance of Systems. The Water and/or Sewer Systems or
portions thereof may be conveyed at any time and from time to time to the County or other
appropriate governmental or quasi-governmental entity, a Special District, or the Master
Association, and shall be maintained, repaired, improved, replaced, operated and managed by the
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owner(s) thereof from time to time or by a third party pursuant to contract. Provided, that each
Owner shall be responsible for maintaining and repairing all portions of the Water System and
the Sewer System that are located within the boundaries of the Owner's Lot.
5.4 Sprinkler Irrigation System. An underground sprinkler system shall be
installed, maintained and used to irrigate all landscaping on Lots within the Common Interest
Community and all other landscaped areas which an Owner is responsible for maintaining. Said
Sprinkler Irrigation System shall be connected to and supplied by the Water System, unless
expressly prohibited by the County or other applicable authority or by the owner/operator of the
Water System, or unless another source is approved by the Master Association. If well water is
approved for irrigation use by applicable Colorado law and by the Master Association, any
underground sprinkler system which utilizes well water shall employ a rust inhibitor system
approved by the Design Review Committee so that rust deposits will not accumulate on any
building, wall or paved area. No Owner may have a connection between the Water System and a
line carrying water from a source other than the Water System, including a well. Each Owner
shall pay all user charges levied from time to time by the owner/operator of the Sprinkler
Irrigation System.
5.5 Ownership and Maintenance of Sprinkler Irrigation System. The Sprinkler
Irrigation System or portions thereof may be conveyed at any time and from time to time to the
Master Association or to a Special District, and shall be maintained, repaired, improved,
replaced, operated and managed by the owner(s) thereof from time to time or by a third party
pursuant to contract. Provided, that each Owner shall be responsible for maintaining and
repairing all portions of the Sprinkler Irrigation System (including the sprinkler heads) that are
located within the boundaries of the Owner's Lot. Each Owner shall also be responsible for
repairing (or paying for the repair of by the owner/operator of the System) any damage to the
Sprinkler Irrigation System caused by the Owner or any Occupant of the Owner's Lot. No
Owner shall make any Improvements to the Owner's Lot which damage or impair the
functioning of the Sprinkler Irrigation System as it serves the Lot or other parts of the Common
Interest Community, and any alterations in or changes that an Owner may wish to make to the
Sprinkler Irrigation System located on the Owner's Lot shall first receive the prior written
approval of the owner/operator of the System.
5.6 Easements. There are hereby created, granted and reserved to the Declarant, the
Master Association, and any applicable Special District, perpetual, non-exclusive easements
along the as-built alignment and in the as-built location of all elements and components of said
Water System, Sewer System, and Sprinkler Irrigation System, throughout the entire Common
Interest Community, for the construction, installation, operation, use, maintenance, repair,
removal and/or replacement thereof and for access thereto for such purposes.
ARTICLE VI
DESIGN REVIEW COMMITTEE
6.1 Establishment of Design Review Committee. The Common Interest
Community shall have a Design Review Committee, which shall consist of an odd number of
members with a minimum of three (3) members and a maximum of seven (7) members, each of
whom shall either be (i) a representative of the Declarant, (ii) an Owner or Occupant of a Lot or
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a Cabin Interest in the Common Interest Community, or (iii) a local architect, landscape architect
or engineer. For so long as Declarant owns any Lots in the Common Interest Community
(including annexations thereto), or until Declarant relinquishes said right to the Master
Association by written notice thereto, Declarant hereby reserves and shall have the sole right to
appoint, and to remove without cause, all members of the Design Review Committee, for such
terms as Declarant considers appropriate. Following the expiration or relinquishment or other
termination of Declarant's right to appoint members of the Design Review Committee, all such
members shall be appointed and removed from time to time by the Executive Board in its
discretion, and shall serve for such term as may be established by the Executive Board from time
to time. A member appointed by the Executive Board may be removed by the Executive Board
at any time upon written notice, without cause. Subject to the three (3) member minimum and
seven (7) member maximum, and to the membership criteria set forth above, Declarant, or
following termination of Declarant's rights under this Section the Executive Board, may increase
or decrease the size of the Design Review Committee from time to time in its discretion. The
Executive Board may hire or appoint a secretary for the Design Review Committee and shall
provide appropriate compensation for any such secretarial services.
6.2 Establishment of Subcommittees. The Design Review Committee shall have
the right but never the obligation to establish one or more subcommittees to perform one or more
of the functions of the Design Review Committee. For purposes of this Master Declaration, all
references to the Design Review Committee shall also refer to any subcommittee established by
the Design Review Committee. The procedures for establishment of subcommittees, the rights
and duties thereof, and the limitations thereon may be established and adopted by the Design
Review Committee from time to time, in its discretion.
6.3 Meetings and Action of Committee. The Design Review Committee shall meet
from time to time as necessary to perform its duties hereunder. The Design Review Committee
may from time to time, by resolution in writing adopted by a majority of the members, designate
a Committee Representative (who may but need not be one of its members) to take any action or
perform any duties for or on behalf of the Design Review Committee, except the granting of
approval for any Improvements and the granting of variances. The action of such Committee
Representative within the authority of such Committee Representative shall constitute the action
of the Design Review Committee. A majority of the members of the Design Review Committee
shall constitute a quorum of the Committee. Actions of the Committee may be taken (without a
meeting) by the written consent of a majority of the members thereof, or at a meeting at which a
quorum is present in person, by .the vote of a majority of such members constituting the quorum,
but in no event less than two (2) members.
6.4 Compensation; Expenses. The members of the Design Review Committee shall
be entitled to reasonable compensation for their services on the Design Review Committee,
which compensation shall be set by the Design Review Committee from time to time. The
members of the Design Review Committee shall also be entitled to reimbursement for reasonable
expenses incurred by them in the performance of their duties hereunder. All expenses of the
Design Review Committee, including reasonable compensation of the members thereof and
expenses related to professionals providing services to the Committee, shall be paid by the
Master Association and shall constitute a Common Expense.
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6.5 Records of Actions. The Design Review Committee shall keep a permanent
record of all final actions of the Design Review Committee.
6.6 Approvals in Annexed Areas. The Design Review Committee shall also be
responsible for reviewing and approving all proposed Improvements on Lots within properties
hereafter annexed to the Common Interest Community, unless a different reviewing body or
procedure is established in the Supplemental Declaration which annexes such property.
6.7 Design Guidelines. The Design Review Committee has established an initial set
of rules, procedures, standards, guidelines and requirements, including without limitation
architectural, design and development standards and guidelines, which shall govern the review
and approval or disapproval of proposed Improvements within the Common Interest Community,
and other matters provided for therein (the "Design Guidelines"). The Design Review
Committee may make such amendments, deletions or additions to the Design Guidelines as the
Committee deems necessary or appropriate from time to time to accomplish the purposes of (and
as are not in conflict with) this Master Declaration and of any pertinent Supplemental
Declaration and to ensure the orderly and attractive development of the Common Interest
Community. Upon its adoption, each such amendment shall be provided to the Executive Board.
The Design Guidelines (as they may be amended from time to time) are hereby incorporated
herein and shall be deemed to be a part of this Master Declaration and of all Supplemental
Declarations and shall be binding on the Common Interest Community, and on all Lot and Cabin
Interest Owners, Occupants, Members or other Persons as if expressly set forth herein. A copy
of the current Design Guidelines shall, at all times, be a part of the Master Association's records.
The Design Review Committee, in its sole discretion, shall have the authority and obligation to
determine the existence of any violation of the Design Guidelines or of any approvals granted or
other decisions made by, or other requirements of, the Design Review Committee, which
determination shall be binding on the Owners. The Design Review Committee, in its sole
discretion, shall also have the authority and obligation to resolve disputes involving any Shared
Driveway Easement designated on a Plat or on a Supplemental Plat, between the Owners of Lots
served by the Shared Driveway Easement, which resolution shall be binding on such Owners, as
provided in Section 9.146 below. The Design Guidelines shall at all times include “best
management practices” which minimize directly connected impervious areas for storm water
runoff within Lots and shall be consistent and comply with the P.U.D. Plan and Wildlife
Mitigation Plan.
6.8 Design Review Fee. The Design Review Committee shall adopt, and may from
time to time amend, a design review fee schedule which shall apply to requests for the original
construction of a residential improvement, and for each subsequent request for approval of an
Improvement on a Lot including remodels, renovations or other alterations of the original
approval, except that no fee shall be charged for any proposed alteration or addition to an
approved landscaping plan. The design review fee schedule shall be set forth in the Design
Guidelines. The applicable fee must accompany each request for approval of any proposed
Improvement. The Design Review Committee shall, not take any action on a request for
approval until all required fees are paid in connection therewith. All fees collected by the Design
Review Committee shall be remitted to the Master Association to help defray the expenses of the
Design Review Committee's operation.
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6.9 Registration of Builders. The construction or renovation of residential
improvements on Lots within the Common Interest Community shall be accomplished only by
general contractors who are "Registered Builders" as provided in this Section. Subcontractors
need not be Registered Builders. In order to register as a Registered Builder, a contractor must
submit to the Design Review Committee a signed "Registered Builder Statement" which recites
as follows:
(a) That the builder is a licensed general contractor in Garfield County,
Colorado;
(b) The names and addresses of the last 5 clients for whom the builder has
constructed homes or other structures;
(c) That the builder expressly authorizes each of said clients to speak to
representatives of the Design Review Committee and/or the Owner regarding the
builder's performance for that client, and further authorizes the Design Review
Committee to pass on any such performance information to the Owner;
(d) That the builder will provide the Owner with, a current financial
statement, if requested by the Owner;
(e) That the builder will allow the Owner to obtain a credit report on the
builder, if requested by the Owner; and
(f) That the builder will furnish the Owner with such other information about
the builder as the Owner may reasonably request.
Upon delivery of a Registered Builder Statement containing all of the required
information to the Design Review Committee, a contractor shall be deemed to be a Registered
Builder for purposes hereof. Before commencing work on the construction or renovation of a
residential improvement on a Lot, the Registered Builder shall obtain a Builder's Risk Insurance
Policy covering all Improvements to be constructed on the Lot, with the benefits payable to the
Owner, and shall deliver copies of the Policy to the Design Review Committee and to the Owner.
In the case of minor renovations where the Design Review Committee does not consider such
Policy necessary, the Design Review Committee may waive this requirement, in its sole
discretion.
6.10 Design Review and Construction Process. Every Owner proposing to make
Improvements on its Lot must comply with the design review and construction procedures that
are set forth in the Design Guidelines.
6.11 Submission of Plans, Specifications and Data. Prior to commencement of work
to accomplish any proposed Improvements, the Owner proposing to make such Improvements
shall submit to the Design Review Committee such descriptions, surveys, plot plans, excavation
plans, drainage plans, elevation drawings, construction plans, landscaping plans, waterscaping
plans, specifications, and samples of materials and colors as the Design Review Committee shall
reasonably request showing among other things the nature, kind, shape, height, width, exterior
design, color, materials, and location of the proposed Improvements. The Owner shall also
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inform the Design Review Committee of the identity of the Owner's proposed Builder, who shall
be a Registered Builder. All submissions shall conform to and be in accordance with the Design
Guidelines established pursuant to Section 6.7. The Owner shall be entitled to receive a receipt
for the same from the Design Review Committee or its authorized agent. The Design Review
Committee may require submission of additional plans, specifications, or other information prior
to approving or disapproving, the proposed Improvements. Until receipt by the Design Review
Committee of all required information and materials in connection with the proposed
Improvements and Builder, the Design Review Committee may postpone review of the
application.
6.12 Criteria for Approval or Disapproval. The Design Review Committee shall
approve any proposed Improvements only if it determines in the exercise of its reasonable
judgment that the P.U.D. Plan and the Design Guidelines have been complied with; that the
proposed Improvements will not be detrimental to the value or enjoyment of the surrounding
areas in the Common Interest Community; that the siting, design, appearance and overall
aesthetic impact of the proposed Improvements will be in harmony with the surrounding areas in
the Common Interest Community; that the proposed Improvements will enhance the quality,
wholesomeness, and attractiveness of the Common Interest Community and the enjoyment
thereof by Lot and Cabin Interest Owners; that the upkeep and maintenance of the proposed
Improvements will not become a burden on the Master Association; and that in the case of
construction or renovation of a residential dwelling, the work will be performed by a Registered
Builder. The Design Review Committee may condition its approval of any proposed
Improvements upon the making of such changes therein as the Design Review Committee may
deem reasonably appropriate, and may require that additional landscaping be performed on the
subject Lot.
The approval by the Committee of any Improvement shall in no event imply or require
that such approval will be granted again in the future for the same or a similar Improvement, and
the Committee shall have complete discretion, consistent with the standards and criteria
contained herein and in the Design Guidelines, to grant or deny such approval in each instance
on the merits of the particular application or proposal and considering the circumstances
surrounding the same.
6.13 Decisions of Committee; Binding Effect. Decisions of the Design Review
Committee shall be made in accordance with the procedures established in the Design
Guidelines, and shall be conclusive and binding on all interested parties.
6.14 Completion of Work After Approval. Following the approval of any proposed
Improvements by the Design Review Committee (and identification of the Registered Builder,
where required), the proposed Improvements shall be completed by the Lot Owner (using the
Registered Builder): (a) as promptly and diligently as possible but in no event in excess of the
time periods set forth below; (b) in compliance with the Design Guidelines and with all
applicable laws, regulations and codes, (c) in strict conformance with all plans and specifications
and other materials furnished to and approved by the Design Review Committee; and (d) in
accordance with any and all conditions imposed by the Design Review Committee. All
Improvements approved by the Design Review Committee shall be completed, including
issuance of a Certificate of Compliance and the removal of all construction equipment, materials
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and debris (i) within 18 months from the date of approval of such Improvements by the Design
Review Committee, or (ii) within such other time period as the Design Review Committee may
prescribe in its discretion. Provided, however, that any and all landscaping anti/or gardening
approved by the Design Review Committee which is related to the initial construction of a
residence on a Lot shall be completed no later than 90 days immediately following the issuance
of the Certificate of Occupancy for such residence. In all cases, the Design Review Committee
must issue a "Certificate of Compliance" before an Owner or Registered Builder applies to the
County for a Certificate of Occupancy. Failure to comply with the terms and conditions of this
Section shall constitute noncompliance with the terms and provisions of this Master Declaration
and the Design Review Committee and/or the Executive Board shall have the right to invoke all
rights and remedies provided to them hereunder, including but not limited to, the right to seek
injunctive relief and/or to impose fines and penalties.
6.15 Right to Inspect. Any member or authorized consultant of the Design Review
Committee or of the Executive Board, or any authorized officer, employee or agent of the
Declarant or of the Master Association, may (but shall not be obligated to) at any reasonable
time enter upon any Lot, without being deemed guilty of trespass, in order to inspect
Improvements constructed or being constructed on such Lot, to ascertain whether such
Improvements have been or are being built or changed in compliance with the Design
Guidelines, the approvals granted by the Design Review Committee, and this Master
Declaration.
6.16 Notice of Completion; Inspection of Work; Correction of Defects.
(a) Upon the completion of any Improvements (excepting the related
landscaping) for which plans and specifications have been approved by the Design
Review Committee, the Owner or the Registered Builder shall submit to the Committee a
written Notice of Completion, on a form to be provided by the Committee, which Notice
shall certify that the Improvements have been completed in accordance with all plans,
specifications and other materials furnished to and approved by the Committee, any
conditions imposed by the Committee, and with the Design Guidelines. Until receipt of
such Notice, the Committee shall not be deemed to have any notice regarding completion
of the Improvements.
(b) Within fourteen (14) days following receipt of the Notice of Completion,
the Design Review Committee or its duly authorized representative shall inspect the
Improvements. If the Committee finds that the Improvements have not been completed
as set forth in the Notice of Completion, it shall notify the Lot Owner in writing of such
noncompliance within said fourteen (14) day period, specifying the particulars of
noncompliance, and shall require the Owner to remedy the same. If for any reason other
than the Lot Owner's act or neglect, the Committee fails to notify the Owner of any
noncompliance prior to the expiration of said fourteen (14) day period, the Improvements
shall be deemed in compliance if the Improvements were, in fact, completed as of the
date of the Notice of Completion and the Owner or Registered Builder may proceed to
request a Certificate of Occupancy from the County.
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(c) If upon the expiration of thirty (30) days from the date of such notification
of non-compliance the Lot Owner shall have failed to remedy such noncompliance, the
Design Review Committee shall notify the Executive Board in writing of such failure.
Thereupon the Executive Board (and its duly authorized representatives), at the Executive
Board's option, may enter upon the Lot at any reasonable time after notice to the Owner,
without being deemed guilty of trespass, and remove the noncomplying Improvement or
otherwise remedy the noncompliance, and the Owner shall reimburse the Master
Association, upon demand, for all expenses, including interest on monies expended and
attorneys' fees incurred in connection therewith. If such expenses are not repaid by the
Owner to the Master Association within thirty (30) days following delivery of a written
demand therefore to the Owner, the Executive Board may levy a Reimbursement
Assessment against such Owner and the Owner's Lot for all such costs and expenses.
The right of the Master Association to remedy or remove any noncompliance shall be in
addition to all other rights and remedies which the Master Association may have at law,
in equity, or under this Master Declaration or any Supplemental Declaration; and the Lot
Owner shall have no claim for damages or otherwise on account of the entry upon the
property and remedying or removal of the noncomplying Improvement.
6.17 Certificate of Compliance. When the Design Review Committee is satisfied that
the Improvements have been completed in accordance with all plans, specifications and other
materials furnished to the Design Review Committee, any conditions imposed by the Committee,
and with the Design Guidelines, it shall issue to the Owner a Certificate of Compliance with
respect to said Improvements. Upon receipt of such Certificate, the Owner or Registered Builder
may proceed to request a Certificate of Occupancy from the County. No newly constructed
residence on a Lot shall be occupied until a Certificate of Compliance has been issued therefore
by the Design Review Committee and a Certificate of Occupancy has been issued therefore by
the County.
6.18 Improvements Must Conform to Approvals. No building, fence, wall,
structure, landscaping or other Improvement of whatever type shall be commenced, constructed,
erected, placed, installed, located, maintained or removed within the Common Interest
Community, nor shall there be any additions or changes to the exterior of any residence or other
structure or Improvement upon a Lot or the landscaping, grading or drainage thereof, including
without limitation, the painting or staining (other than painting or staining with the same color
and type of paint or stain as previously existed) of exterior walls, patio covers and fences, except
in accordance with plans and specifications therefore which have been submitted to and
approved by the Design Review Committee and in compliance with the Design Guidelines.
6.19 Committee Power to Grant Variances. The Design Review Committee may
grant variances from any of the restrictions set forth in this Master Declaration or any
Supplemental Declaration or the Design Guidelines pertaining to proposed Improvements and
the criteria therefore, including restrictions upon height, size, floor area, setbacks, location or
placement of structures, or similar restrictions, when (i) unique circumstances not created by the
Lot Owner, such as topography, natural obstructions, or aesthetic or environmental
considerations would otherwise result in substantial hardship or burden which is not suffered by
other similarly-situated Lots, or (ii) when a change of circumstances since the Recording of this
Master Declaration has rendered such restriction obsolete, and (iii) in either case, when the
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Design Review Committee determines that the activity allowed by the variance will not have any
material adverse effect on the Owners and Occupants of the Common Interest Community
(including neighboring Lots) and is consistent with the high quality of living intended to be
promoted hereby throughout the Common Interest Community. When an Owner applies for a
variance, the Committee must give at least ten (10) days written notice of the variance hearing,
and of the nature of the variance requested, postage prepaid, by certified mail, return receipt
requested, to all Owners of Lots (including Cabin Interests) that are situated within a radius of
300 feet of the Lot for which the variance is sought, at the current addresses for such Owners
reflected in the Master Association files. The applying Owner must provide the Committee with
an accurate list of the Owners to be so notified. If the foregoing notice requirements are
complied with, it is not necessary that the Owners actually receive the notice that is mailed to
them, such notices being deemed received upon mailing.
All variances that are granted by the Design Review Committee must be evidenced in
writing, must specify the Lot for which the variance is granted and the unique circumstances or
change in circumstances justifying the variance, and must be signed by at least a majority of the
members of the Committee. If any such variance is granted, no violation of the covenants,
conditions and restrictions contained in this Master Declaration or any Supplemental Declaration
or the Design Guidelines shall be deemed to have occurred with respect to the matter for which
the variance was granted. The granting of such a variance shall not operate to waive any of the
terms and provisions of this Master Declaration or of any Supplemental Declaration or the
Design Guidelines for any purpose except as to the particular property and particular provision
hereof covered by the variance. A copy of each variance request and approval, or denial, will be
kept on file at the Master Association offices.
The granting of a variance in a particular instance shall in no event imply or require that
such a variance will be granted again in the future in a similar situation, and the Committee shall
have complete discretion, consistent with the standards and criteria contained herein and in the
Design Guidelines, to grant or deny a variance in each instance on the merits of the particular
application and considering the circumstances surrounding the same.
No variance shall conflict with the P.U.D. Plan or with ordinances or regulations of the
County. If a variance from the P.U.D. Plan or County laws or regulations is also required in
connection with a matter for which a variance is desired hereunder, it shall be the Owner's
responsibility to obtain such County variance before submitting a variance application to the
Design Review Committee.
6.20 Nonliability for Approval or Disapproval of Plans and Specifications, for
Issuance of Certificates of Compliance, or for Registration of Builders. The criteria for
Design Review Committee approval of plans and specifications are set forth in Section 6.12
above. The Design Review Committee shall not be responsible for reviewing plans and
specifications with respect to engineering design or for compliance with zoning, building
ordinances, environmental laws, or any other applicable laws or regulations. By its approval of
any such plans and specifications, neither the Design Review Committee, the members thereof,
the Master Association, any Member, the Executive Board nor the Declarant assumes or shall
have any liability or responsibility with respect to engineering design or for compliance with
zoning, building ordinances, environmental laws, or any other applicable laws or regulations, or
44
for any defect in any Improvement constructed from such plans and specifications. Neither the
Design Review Committee, any member thereof, the Master Association, the Executive Board
nor the Declarant shall be liable to any Lot or Cabin Interest Owner, Occupant or other Person
for any injury, damage, loss or prejudice suffered or claimed on account of (a) the approval or
disapproval of any plans, drawings or specifications, whether or not defective, (b) the
construction or performance of any work, whether or not pursuant to approved plans, drawings
and specifications, (c) the issuance of a Certificate of Compliance, or (d) the development, or
manner of development of any property within the Common Interest Community. The approval
of plans and specifications by the Design Review Committee, and/or the issuance of a Certificate
of Compliance by the Design Review Committee, shall not under any circumstances constitute or
be deemed to be a representation or warranty that the plans, specifications or completed
Improvements comply with applicable laws, resolutions, ordinances or regulations, including but
not limited to, zoning ordinances and building codes and environmental laws.
Likewise, Builders shall register with the Design Review Committee in the manner set
forth in Section 6.9 above and in the Design Guidelines. By registering a Builder, the Design
Review Committee does not represent or warrant, either expressly or by implication, and
hereby disclaims any representations or warranties, that the Registered Builder will in fact
complete the Improvements on schedule, within the Owner's budget, or in a competent and
workmanlike manner, or that the Registered Builder is or will remain financially sound,
and the Lot Owners assume all risks regarding such matters. Neither the Design Review
Committee, the members thereof, the Master Association, any Member, the Executive
Board nor the Declarant shall be liable to any Lot or Cabin Interest Owner, Occupant or
other Person for any injury, damage, loss or prejudice suffered or claimed on account of
(a) the registration of any Builder, (b) defects or delays in the work performed by a
Registered Builder, (c) financial difficulties experienced by a Registered Builder, and/or
(d) any other problems arising from an Owner's use of a Registered Builder.
6.21 Featured Builders. Upon compliance with the provisions of this Article 6 and
the obtaining of all requisite Design Review Committee approvals, Featured Builders shall have
the right to construct or alter Improvements on any Lot(s) owned by the Featured Builder within
the Common Interest Community, and to post a sign incident to such activity, which sign has
been approved in advance by the Design Review Committee. Nothing contained herein shall
obligate the Declarant to designate a Lot Owner as a Featured Builder hereunder, and the
designation of any Person as a "Featured Builder" shall be in Declarant's sole and absolute
discretion. Furthermore, in no event shall the terms and provisions hereof be construed to
obligate Declarant to implement or, once initiated, to continue the Featured Builder program
contemplated hereby, which implementation and/or continuation shall be in Declarant's sole
discretion. DECLARANT HEREBY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATING TO THE
DESIGNATION OF ANY PERSON AS A FEATURED BUILDER HEREUNDER, AND
DECLARANT SHALL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR
RELATING IN ANY WAY TO THE DESIGNATION OF, OR FAILURE TO
DESIGNATE, ANY PERSON AS A FEATURED BUILDER.
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6.22 Enforcement. The requirements and provisions of this Article 6 and/or of the
Design Guidelines shall be enforceable in accordance with the rights and procedures set forth
herein.
ARTICLE VII
ASSOCIATION PROPERTY
7.1 Use and Enjoyment of Association Property. With the exception of Limited
Common Areas, and except as otherwise provided in this Master Declaration, in any
Supplemental Declaration, or in the Master Rules and Regulations, each Owner shall have the
non-exclusive right to use and enjoy Association Property in common with all other Owners.
This right to use and enjoy Association Property shall extend to each Owner, Occupant, and the
family members, guests and invitees of each Owner, and to such other users as may be
authorized by this Master Declaration or by the Executive Board from time to time, and shall be
appurtenant to each Lot or Cabin Interest, subject at all times to the provisions of this Master
Declaration (including Declarant's reserved rights hereunder), any applicable Supplemental
Declaration, the Articles, Bylaws, and the Master Rules and Regulations. No Owner or Occupant
shall place any structure or store or leave any materials or personal property upon Association
Property, nor shall any Owner or Occupant engage in any activity which will temporarily or
permanently impair free and unobstructed access to all parts of the Association Property
(excepting Limited Common Areas) by all Owners. Use of the Association Property is also
subject to any applicable terms of the Declaration of Easements and Rights.
With respect to Limited Common Areas, each Owner and Occupant of a Lot designated
by Declaration or Plat for the use of such Limited Common Area shall have the non-exclusive
right to use and enjoy the same in common with all other Owners and Occupants of Lots so
designated, for all purposes for which the Limited Common Area was created, subject to any
Master Rules and Regulations relating thereto.
7.2 Recreational, Health and Social Facilities. Declarant plans to provide certain
recreational, health and social facilities for the use and benefit of Owners and Occupants and
other persons authorized from time to time by Declarant or the Master Association, which
facilities may include, without limitation, an equestrian center, a trail system, parks, picnic areas,
and similar facilities. The location, design, timing, kind, value and nature of such facilities shall
be determined by Declarant in the exercise of its sole discretion, and Declarant reserves the right
to increase or add to such facilities or to expand or enlarge the facilities, without the consent of
the Owners, Mortgagees, or the Master Association. Such facilities may be located within or
outside the Common Interest Community, and if and when transferred to the Master Association
they shall constitute Association Property. Notwithstanding any other provisions of this Master
Declaration, Declarant and/or the Master Association expressly reserve and shall have the
following rights with respect to such facilities:
(a) Declarant shall have the right at any time and from time to time to use any
such facility, or portion thereof, for office or sales or professional purposes or functions,
in Declarant's sole discretion, for so long as Declarant owns any Lots or Cabin Interests
in the Common Interest Community (including annexations thereto).
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(b) The Master Association shall have the right to impose a fee or charge for
the use and enjoyment of any of such recreational, health or social facilities, or any
services offered therein, and may permit the use of any part thereof for private, charitable
or professional functions.
(c) The Master Association shall have the right to lease or grant concessions
or to contract with others to provide programs or services within such facilities for the
benefit of Owner and Occupants and such other persons as the Master Association may
authorize from time to time.
(d) Declarant, for so long as it owns any Lots or Cabin Interests in the
Common Interest Community (including annexations thereto), and the Master
Association, shall have the right to authorize and permit persons who are not Owners or
Occupants in the Common Interest Community (including, without limitation, the public)
to use the recreational, health or social facilities upon such conditions, and for such fees
and charges payable to the Master Association, as Declarant or the Master Association
may determine to be appropriate from time to time, in their discretion.
7.3 Master Association May Regulate Use of Association Property. The Master
Association, acting through the Executive Board, shall have the right and authority to regulate
the use of Association Property by the promulgation, enforcement and interpretation from time to
time of such Master Rules and Regulations relating thereto as the Master Association considers
necessary or appropriate for the protection and preservation of Association Property and the
enhancement of the use and enjoyment thereof by Owners and Occupants and other authorized
users, subject always to any rights or interests created by the Declaration of Easements and
Rights.
The Master Association, acting through the Executive Board, may for good cause
suspend the right of any person to use and enjoy Association Property, including without
limitation the right of a Member who or which is delinquent in the payment of any Assessments,
and the right of any Member or other authorized user who is in violation of the terms and
provisions of this Master Declaration or any Supplemental Declaration, the Articles, Bylaws,
Master Rules and Regulations, Design Guidelines or the terms and provisions of any approvals
granted by the Design Review Committee.
7.4 Master Association to Maintain and Improve Association Property. The
Master Association, its agents and employees, or a Special District, shall maintain and repair,
snowplow as necessary, and otherwise manage the Association Property (including the Limited
Common Areas), including, but not limited to, any Improvements, postal kiosks, landscaping,
paths, trails, parking areas, drives, lighting, signage, and recreational and other facilities located
thereon. The Master Association may construct, alter and remove such Improvements and
landscaping upon Association Property as the Master Association in its discretion considers
necessary, desirable or appropriate from time to time, and may do all such other and further acts
which the Executive Board deems necessary or appropriate to preserve, protect and enhance the
Association Property and the beauty thereof in accordance with the general objectives for the
Common Interest Community reflected in this Master Declaration. Separate bids shall be let for
the maintenance of Limited Common Areas so that the costs thereof can be assessed exclusively
47
to the Lots benefited thereby. As provided in Section 141.10 below, the Master Association may
contract with third parties, including a Special District, to perform any of the foregoing
responsibilities.
7.5 No Partition of Association Property. No Owner or other Person shall have any
right to partition or to seek the partition of Association Property or any part thereof.
7.6 Owner Liability for Owner or Occupant Damage to Association Property.
Each Owner shall be liable to the Master Association for any damage to Association Property or
for any expense, loss or liability suffered or incurred by the Master Association in connection
with Association Property arising from (a) the negligence or willful misconduct of such Owner
or of any Occupant, agent, employee, family member, guest or invitee of such Owner, or (b) any
violation by such Owner or any Occupant, agent, employee, family member, guest or invitee of
such Owner of any law, regulation, or code, including without limitation any environmental law,
or of any provisions of this Master Declaration, any Supplemental Declaration, or the Master
Rules and Regulations, relating to Association Property. Each Owner shall indemnify, defend
and hold the Master Association harmless from any loss, damage, expense or liability arising
from the circumstances described in subsections (a) or (b) immediately above. The Master
Association shall have the power to levy and collect a Reimbursement Assessment against a Lot
Owner to recover the costs, expenses, damages, losses or liabilities incurred by the Master
Association as a consequence of any such negligence, willful misconduct or violations.
7.7 Damage or Destruction to Association Property. In the event of damage to or
destruction of Association Property, including Improvements thereon, by fire or other casualty,
the Master Association shall repair or replace the same in accordance herewith. Repair,
reconstruction, or replacement of Association Property shall be accomplished under such
contracting and bidding procedures as the Master Association shall determine are appropriate. If
insurance proceeds available to the Master Association on account of damage or destruction
exceed the cost of repair, reconstruction, and replacement, the Master Association may use the
same for future maintenance, repair, improvement, and operation of Association Property or for
any other use deemed appropriate by the Executive Board.
7.8 Condemnation of Association Property. If any Association Property or part
thereof or interest therein is taken under exercise of the power of eminent domain or by purchase
in lieu thereof, the portion of any award in condemnation or the price payable for the deed in lieu
that is attributable to the Association Property taken or purchased shall be paid to the Master
Association. The Master Association shall have the exclusive right to participate in such
condemnation proceedings and to represent the interests of all Owners and Occupants and other
Persons therein. Any award or funds received by the Master Association shall be held by the
Master Association for the purposes stated in Section 7.7 above or as a reserve for future
maintenance, repair, reconstruction, or replacement of Association Property or may be used for
Improvements or additions to or operation of Association Property or for such other uses as may
be deemed appropriate by the Executive Board. Except as may otherwise be provided by the
Act, no Owner or other Person shall be entitled neither to participate as a party or otherwise in
any condemnation proceedings nor to receive any proceeds therefrom.
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7.9 Title to Association Property Upon Dissolution of Master Association. In the
event of dissolution of the Master Association, the Association Property shall, to the extent
permitted by law and reasonably possible, be conveyed or transferred to an appropriate public,
governmental or quasigovernmental agency or organization or to a nonprofit corporation,
association, trust, or other organization, to be used, in any such event, for the common benefit of
Owners for the purposes for which the Association Property was held by the Master Association.
If the foregoing is not possible, the Association Property shall be sold or disposed of and the
proceeds from the sale or disposition shall be distributed to Owners in proportion to each
Owner's Allocated Interest in the Common Expenses of the Master Association.
7.10 Mechanic's Liens on Association Property. Declarant shall be responsible for
the release of mechanics' liens filed with respect to Association Property, or any part thereof, if
such liens arise from labor performed or materials furnished at the instance of Declarant, its
agents, contractors or subcontractors. Likewise, the Master Association shall be responsible for
the release of mechanics' liens filed with respect to Association Property, or any part thereof, if
such liens arise from labor performed or materials furnished at the instance of the Master
Association, its directors, officers, agents, contractors or subcontractors. No labor performed or
materials furnished with respect to a Lot at the instance of the Lot Owner shall be the basis for
filing a lien against Association Property. No labor performed or materials furnished with
respect to Association Property at the instance of the Executive Board shall be the basis for filing
a lien against any Lot.
ARTICLE VIII
DECLARANT'S RESERVED RIGHTS
Declarant hereby expressly reserves to itself and its successors and assigns the following
described rights, which include development rights and special Declarant rights, any one or more
of which rights may be exercised, in the sole and absolute discretion of Declarant, at any time
and from time to time during the period commencing upon the Recording of this Master
Declaration in the County and ending on the date of termination of such rights established under
Section 8.16 below. It is expressly understood that Declarant shall not be obligated to exercise
any of these reserved rights, and that no consent shall be required from any Owner, Mortgagee,
Special District or the Master Association for the effective exercise of any of these reserved
rights.
Except as limited by this Article 8, such reserved rights may be exercised upon or in
connection with all or any portion of the Common Interest Community described on attached
Exhibit A, the Annexable Property described on attached Exhibit B, and/or the additional
unspecified real estate referred to in Section 8.7 below. Such rights may be exercised with
respect to different parcels of said real estate at different times, and in connection therewith
Declarant hereby states that (i) no assurances are made regarding the boundaries of said different
parcels or with respect to the order in which such parcels may be subjected to the exercise of
these reserved rights, even if a reference to a phase or phasing appears in a legal description,
Plat, P.U.D. Plan or other agreement relating to the property, and (ii) if a particular reserved right
is exercised in any portion of the real estate subject to that reserved right, that reserved right is
not required to be exercised in all or any portion of the remainder of that real estate.
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The reserved rights hereinafter set forth shall be prior and superior to any other
provisions of this Master Declaration or of any Supplemental Declaration, and may not be
amended, modified, terminated or otherwise altered in any way without the express prior written
consent of Declarant. All conveyances of Lots and Cabin Interests and other portions of the
Common Interest Community hereafter made, whether by Declarant or otherwise, shall be
deemed and construed to reserve to Declarant and/or to grant to Declarant all of the rights
reserved by and to Declarant in this Article 8 and elsewhere in this Master Declaration or in any
Supplemental Declaration, even though no specific reference to such rights appears in the
conveyancing instruments. Nothing in this Article 8 shall limit or impair any other rights granted
or reserved to Declarant by other provisions of this Master Declaration or of any Supplemental
Declaration.
The following rights are hereby reserved to Declarant and its successors and assigns:
8.1 Construction of Improvements. The right, but not the obligation, to construct
additional Improvements on Association Property at any time and from time to time for the
improvement and enhancement thereof for the benefit of the Master Association, the Owners, or
some of them, and/or pursuant to the Declaration of Easements and Rights. Furthermore, the
right throughout the Common Interest Community to complete Improvements indicated on the
Plat filed with this Master Declaration, and on any Supplemental Plats filed with any
Supplemental Declarations, as such Plats and Declarations may be amended from time to time.
Furthermore, the right to construct and complete Improvements required by the terms of the
Subdivision Improvements Agreement Recorded __________, in Book ____ at Page ____ in the
Office of the Clerk and Recorder of Garfield County, Colorado, and by the terms of any other
such Subdivision Improvements Agreements that may hereafter be executed by Declarant in
connection with annexations to the Common Interest Community, as suchaid Agreement or
Agreements may be amended from time to time. Furthermore, the right to create, grant and/or
use and enjoy additional non-exclusive easements, and to relocate existing platted or other
easements, upon or across any portion of the Common Interest Community (including Lots, but
excepting Building Envelopes), as may be reasonably required for the construction by Declarant
of the above-described Improvements or the effective exercise by Declarant of any of the other
reserved rights described in this Article 8.
8.2 Sales, Marketing and Management. The right to construct, locate or operate,
and to maintain upon, and to remove from, any part of the Common Interest Community
including Lots owned by Declarant and Association Property, in the discretion of Declarant, and
in such number, size and location as may be reasonably required by Declarant in connection with
the completion of Improvements, the management of the development, and/or the promotion,
marketing, sale or rental of Lots or Cabin Interests, the following:
(a) Sales offices, management offices, and/or construction offices, and
structures containing or relating to the same. Such offices, to the extent they are not
situated on a Lot, are hereby declared to be personal property of the Declarant and shall
in any case be removable by Declarant or its successors or assigns promptly upon the
Declarant or its successors or assigns ceasing to be a Lot or Cabin Interest Owner;
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(b) Signs identifying and advertising the Common Interest Community and
the Lots and/or Cabin Interests therein, or relating to development or construction
thereon;
(c) Model residences constructed or to be constructed on Lots;
(d) Parking areas and facilities, and lighting, necessary or desirable in the
marketing of the Common Interest Community and the Lots and Cabin Interests;
(e) Employees in offices; equipment; vehicles; and marketing and
construction materials.
Together with the right to attract, invite or bring prospective purchasers of Lots and/or
Cabin Interests into the Common Interest Community at all times, and to permit them to use and
enjoy the Association Property.
8.3 Merger. The right to merge or consolidate the Common Interest Community
with another common interest community of the same form of ownership.
8.4 Declarant Control of Master Association. The right to appoint or remove any
Executive Board member or officer of the Master Association, as more specifically set forth in
Section 130.5 below, but only for and during the "Period of Declarant Control of Master
Association" as defined in said section 130.5.
8.5 Annexation of Additional Properties. The right to annex to the Common
Interest Community all or any part of the Annexable Property described on attached Exhibit B.
Each Owner hereunder hereby grants to Declarant the right to annex all or any part of the
Annexable Property to the Common Interest Community and to modify such Owner's Allocated
Interests accordingly. Alternatively, Declarant shall have the right and is authorized to develop
portions of the Annexable Property and/or to convey, lease or mortgage portions of the
Annexable Property to such third party or parties as Declarant may deem appropriate, without
annexing them to the Common Interest Community, whether for purposes consistent with this
Master Declaration or otherwise. Declarant makes no assurances that all or any portion of the
Annexable Property will be added to the Common Interest Community and Declarant reserves
the right to annex all or any portion of the Annexable Property to the Common Interest
Community in any order it deems appropriate in its sole and absolute discretion.
8.6 Annexation Procedure. The annexation of additional real property to the
Common Interest Community shall be accomplished by the Recording by Declarant with the
Clerk and Recorder of Garfield County of an Annexation Deed or a Supplemental Declaration
containing a legal description of the land area to be added to the Common Interest Community
and amending this Master Declaration accordingly, together with a Supplemental Plat thereof. In
no event shall any annexation increase the number of Lots in the Common Interest Community
beyond the maximum stated in the Recitals to this Master Declaration. The Supplemental
Declaration shall describe any Association Property (including Limited Common Areas) thereby
created.
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The annexation of the Annexable Property may be accomplished by successive
Annexation Deeds or Supplemental Declarations, in no particular or pre-established order, and
may provide that property annexed thereby (the "Annexed Property") is phased so that it is made
subject to this Master Declaration at different times. Upon Recording of an Annexation Deed or
Supplemental Declaration, the Annexed Property described therein shall be subject to all of the
covenants, conditions, restrictions, limitations, reservations, exceptions, equitable servitudes, and
other provisions set forth in this Master Declaration. Any such Annexation Deed or
Supplemental Declaration may impose on the Annexed Property described therein additional
covenants, conditions, restrictions, limitations, reservations, exceptions, equitable servitudes, and
other provisions than those set forth in this Master Declaration, taking into account the unique
and particular aspects of the Annexed Property covered thereby and of the proposed
development thereof. Furthermore, Declarant shall have the right to reserve in such Annexation
Deed or Supplemental Declaration any development rights that Declarant considers necessary or
appropriate; provided that such provision shall not extend the termination date for the exercise of
Declarant's development rights as set forth in Section 8.16 below. A Supplemental Declaration
may provide for a Subassociation of Owners within the Annexed Property described in the
Supplemental Declaration and for the right of the Subassociation to assess such Owners for
common expenses unique to those Owners.
8.7 Annexation of Additional Unspecified Real Estate. The right to annex
additional, unspecified real estate to the Common Interest Community to the fullest extent
permitted by the Act. In the event that Declarant elects to annex any such additional unspecified
real estate, Declarant shall annex such property to the Common Interest Community in
accordance with the provisions of Section 8.6 above.
8.8 Withdrawal Rights and Procedure. The right at any time and from time to time
to withdraw from the Common Interest Community (and any annexations thereto) any Declarant-
owned Lot(s) or Association Property.
Withdrawal may only be accomplished by the recording by Declarant of an amendment
to this Master Declaration or any Supplemental Declaration affected by the withdrawal, and an
amendment to the Plat or any Supplemental Plat affected by the withdrawal. Upon the recording
of such amendments, the withdrawn Lots and/or Association Property shall no longer be part of
the Common Interest Community or subject to this Master Declaration or any applicable
Supplemental Declaration in any way.
Each Declarant-owned Lot, and each Declarant-owned Association Property, is hereby
described and declared to be a separate portion of real estate that is subject to this right of
withdrawal, and Declarant expressly reserves the right to withdraw one or more Declarant-
owned Lots and/or all or a portion of any Declarant-owned Association Property from the
Common Interest Community. Once a Lot has been conveyed to a Lot Owner other than
Declarant, that portion of the real estate is no longer subject to this right of withdrawal.
Likewise, once an Association Property has been conveyed to the Master Association, a Special
District, or the County, that portion of the real estate is no longer subject to this right of
withdrawal.
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The withdrawn property shall be subject to whatever easements, if any, may be
reasonably necessary for access or utility service to, or operation or management or use or
enjoyment of, the Common Interest Community or any part thereof. Similarly, the owner(s) of
the withdrawn property shall have whatever easements, if any, are reasonably necessary for
access or utility service to or for use or enjoyment of the withdrawn property over and across
Special District and/or Association Property within the Common Interest Community. At the
time any withdrawal of real estate is accomplished, Declarant shall record whatever documents
are necessary to establish such reciprocal easements in the Garfield County records.
8.9 Effect of Expansion or Contraction. In the event any real property is annexed
to the Common Interest Community as provided herein, or if any real property is withdrawn
from the Common Interest Community as provided herein, the definitions used in this Master
Declaration shall be automatically expanded or contracted to encompass and refer to the
Common Interest Community as expanded or contracted, e.g., "Common Interest Community"
shall mean the real property described herein plus any additional real property annexed thereto
and/or minus any real property withdrawn therefrom; similarly, "Association Property" and
"Lots" shall mean and include those areas as described herein as well as or less those so
designated on any Supplemental Declaration or Supplemental Plat (or any amendment to a
Declaration or Plat) relating to any real property which is annexed or withdrawn pursuant to this
Article 8. Association Property shall also mean and include all properties located from time to
time within the Annexed Property that fall within the definition of Association Property
contained in this Master Declaration, less any Association Property removed by withdrawal.
References to this Master Declaration shall mean this Master Declaration as so supplemented by
any Supplemental Declaration and any Supplemental Plat, or as amended. Every Owner of a Lot
or Cabin Interest in the area annexed to the Common Interest Community shall, by virtue of
ownership of such Lot or Cabin Interest and upon recordation of the Supplemental Declaration
annexing such property to the Common Interest Community, be a member of the Master
Association and, except as may be otherwise provided in the Supplemental Declaration, shall be
entitled to the same rights and privileges and subject to the same duties and obligations as any
other Master Association Member. Regular Assessments for Lots or Cabin Interests within the
Annexed Property shall commence as of the date of the Recording of the Supplemental
Declaration and shall be prorated as of such date.
The recording of amendments to the Master Declaration and Plat, whether in the form of
Supplemental Declarations and Supplemental Plats or otherwise, which reallocate the Allocated
Interests in the Common Interest Community, shall automatically:
(a) Vest in each existing Owner the reallocated Allocated Interests
appurtenant to the Owner's Lot or Cabin Interest; and
(b) Vest in each existing Mortgagee a perfected security interest in the
reallocated Allocated Interests appurtenant to the encumbered Lot or Cabin Interest.
8.10 Subdivision of Lots or Parcels. Declarant shall have and hereby reserves the
right to subdivide any Declarant-owned Lot or parcel located within the Common Interest
Community to create additional Lots, Association Property, and/or streets, subject to the
maximum number of Lots set forth in the Recitals to this Master Declaration; provided, however,
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that such subdivision is consistent with the P.U.D. Plan or that said P.U.D. Plan is amended if
necessary, and that the subdivision is accomplished in compliance with County subdivision
requirements. Upon the subdivision of any Lot or parcel in accordance with the terms and
conditions contained herein, the Allocated Interests of all Owners shall be reallocated in
accordance with the definition of Allocated Interests contained in this Master Declaration.
8.11 Transfer of Additional Property to Master Association. The right, but not the
obligation, to transfer additional real and personal property, and Improvements thereon, to the
Master Association from time to time in furtherance of this Master Declaration.
8.12 Other Reserved Development Rights. Subject to compliance with any
applicable County requirements, the right with respect to all or any Declarant-owned portion of
the Common Interest Community (including the Lots) to (a) create Association Property
(including Limited Common Areas); (b) create additional Lots, subject to the maximum set forth
in the Recitals to this Master Declaration; (c) create Cabin Interests; (d) subdivide Lots as set
forth in Section 8.10 above; (e) combine Lots; (f) reconfigure Lots and/or Association Property,
or otherwise modify or amend recorded Plats; (g) amend the P.U.D. Plan; (h) convert Lots into
Association Property and/or streets; and (i) convert Association Property into Lots and/or streets.
Additionally, in order to effectively exercise the rights reserved to Declarant under this Article 8,
the right to amend this Master Declaration (without the consent of Owners, Mortgagees or the
Master Association being required) for purposes of complying with or qualifying for federal or
state registration of the project (ii) satisfying title insurance requirements, or (iii) bringing any
provision or provisions of the Master Declaration into compliance with the Act.
8.13 Owner Review, Acceptance and Waiver of Rights Re: P.U.D. Plan and
Declarant's Reserved Rights. Each Owner, by its acceptance of a deed or other conveyance
vesting in the Owner an interest in a Lot or Cabin Interest in the Common Interest Community,
acknowledges that the Owner has carefully reviewed and understands the P.U.D. Plan (as it may
be amended from time to time) and the Declarant's reserved rights as set forth in this Article 8 or
elsewhere in this Master Declaration or in any Supplemental Declaration, that the Owner accepts
and approves such matters and appreciates any potential impacts that the implementation of the
P.U.D. Plan and/or the exercise of such reserved rights may have on the Owner's Lot or Cabin
Interest, and expressly waives any rights the Owner may have to object to or to interfere in any
way with the implementation of such P.U.D. Plan or the exercise of such rights.
8.14 Declarant As Attorney-in-Fact for Owners. Each Owner, by its acceptance of a
deed or other conveyance vesting in the Owner an interest in a Lot or Cabin Interest in the
Common Interest Community, does hereby irrevocably constitute and appoint Declarant (with
full power of substitution) as said Owner's attorney-in-fact, in said Owner's name, place and
stead, to take any and all actions and to execute and deliver any and all instruments as may be
necessary or appropriate to Declarant's exercise of the various rights reserved to Declarant under
this Article 8 or elsewhere in this Master Declaration or in any Supplemental Declaration,
specifically including without limitation Declarant's reserved right to use all existing easements
within the Common Interest Community, or to create, grant, use and/or replat and relocate
additional or existing easements across any portion of the Common Interest Community
excepting platted Building Envelopes.
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8.15 Transfer of Declarant's Reserved Rights. Any one or more rights created or
reserved for the benefit of Declarant under this Article 8 or elsewhere in this Master Declaration
or in any Supplemental Declaration may be transferred to any Person by an instrument
describing the right or rights transferred and Recorded in Garfield County. Such instrument shall
be executed by the transferor Declarant and the transferee. The provisions of
Section 38-33.3-304 of the Act shall apply to any transfer of special declarant rights.
8.16 Termination of Declarant's Reserved Rights. With the exception of Declarant's
right to appoint or remove Executive Board members and officers of the Master Association,
which is addressed in Section 10.5 below, the rights reserved to Declarant in this Article 8 shall
automatically terminate and expire upon the first to occur of (i) the date which is fifthirty (350)
years after the Recording of this Master Declaration, or (ii) Declarant's relinquishment and
surrender of such rights by Recorded instrument. Declarant may from time to time relinquish
and surrender one or more but less than all of the reserved rights, in which event the
unrelinquished reserved rights shall remain fully valid and effective for the remainder of the term
thereof. The Master Association may extend the time period for exercise of a development right,
or reinstate a lapsed development right, subject to whatever terms, conditions and limitations the
Master Association may impose on the subsequent exercise of the development right. The
extension or renewal of a development right and any terms, conditions and limitations shall be
included in an amendment executed by Declarant or the owner of the real estate subject to the
development right and the Master Association.
ARTICLE IX
EASEMENTS
9.1 Easements for Incidental Encroachments. If any portion of an Improvement
approved by the Design Review Committee encroaches in its approved location upon an
Association Property; including any future encroachments arising or resulting from the repair or
reconstruction of an Improvement subsequent to its damage, destruction or condemnation, a
valid easement on the surface and for subsurface support below such surface and for the
maintenance of same, so long as it stands, shall and does exist for such incidental encroachment.
9.2 Blanket Master Association Utility and Drainage Easement Over Streets,
Roads, Shared Driveways, and Association Property. There is hereby created, granted and
reserved to the Master Association, its agents, employees and assigns, a perpetual, non-exclusive
blanket easement over, across, upon and under all streets and roads and Shared Driveways in the
Common Interest Community and all Association Property for the construction, installation,
testing, operation, monitoring, management, administration, maintenance, repair, removal and
replacement of utilities and utility lines, irrigation lines and systems, water features, wetlands
areas, and drainage systems, pipes, wires, circuits, conduits, meters, facilities and systems for the
benefit of the Common Interest Community or any part thereof or neighboring lands, including
but not limited to drainage, domestic water, irrigation water, sewer, gas, telephone, electricity,
cable TV and other master TV and communication systems, if any, together with an easement for
access, ingress and egress to accomplish such purposes, and together with the right to grant any
such easement rights to utility companies and/or Special Districts. The Master Association or
other person or entity exercising such utility and drainage easement rights shall be obligated to
restore, reseed, replant and/or re-landscape the surface of the disturbed area to as close to its
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original condition as possible, as promptly as possible following completion of any utility or
drainage work.
9.3 Master Association Administrative Easement Over Streets Roads Shared
Driveways, and Association Property. There is hereby created, granted and reserved to the
Master Association, its agents, employees and assigns, a perpetual, non-exclusive easement over,
across, upon and under all streets and roads and Shared Driveways in the Common Interest
Community and all Association Property and a right to use the same for purposes of enabling the
Master Association to perform the duties and functions which it is obligated or permitted to
perform pursuant to this Master Declaration.
9.4 Declarant Easement Over Streets, Roads, Shared Driveways, and Association
Property. There is hereby created, granted and reserved to Declarant and its successors and
assigns a non-exclusive easement over, across, upon and under all streets and roads and Shared
Driveways in the Common Interest Community and all Association Property (including without
limitation all easements benefiting the Master Association), including a right of access, ingress
and egress thereto, and a right to use such streets, roads, Shared Driveways and Association
Property, and each and every part thereof, for all purposes reasonably related to (a) Declarant's
development, improvement, maintenance, management, marketing and sale of the Common
Interest Community and all portions thereof, including any annexations thereto, and/or
(b) Declarant's exercise and implementation of the rights reserved to Declarant under this Master
Declaration or any Supplemental Declaration, and/or (c) the discharge by Declarant of any of its
obligations under this Master Declaration or any Supplemental Declaration or under the
Subdivision Improvement Agreement recorded ___________________, in Book ____ at
Page ____ and any other Subdivision Improvement Agreements that may be executed by
Declarant in connection with properties annexed to the Common Interest Community, or any
other Declarant obligations relating to the Common Interest Community. Declarant's rights with
respect to this easement shall terminate upon the first to occur of (i) the date which is fifthirty
(350) years after the Recording of this Master Declaration, or (ii) Declarant's relinquishment of
all or a portion of this easement right by Recorded instrument.
9.5 Utility, Drainage, and/or Irrigation Easements. There are hereby created,
granted and reserved for the use and benefit of the Declarant, the Master Association, the Club
Property Owner, appropriate public utilities, and Special Districts, if any, perpetual, non-
exclusive easements over, upon, across and under those portions of the Common Interest
Community that are designated "Utility Easement", "Irrigation Easement", or "Drainage
Easement" on the Plat or any Supplemental Plat and over, upon, across and under all areas within
platted Lots that lie outside of the Building Envelopes. Utility Easements may be used for the
installation, operation, maintenance, repair, removal or replacement of underground utility lines
(and related surface facilities). Drainage Easements and Irrigation Easements may be used for
the installation, operation, maintenance, repair, removal or replacement of drainage and
irrigation systems and facilities, respectively. Except as may otherwise be provided in any
Subdivision Improvements Agreement between Declarant and the County or in any other
separate agreement between Declarant and a utility supplier, the party causing the disturbance
shall be obligated to restore, repair, reseed and/or relandscape any area disturbed by the exercise
of these easement rights to as close to its original condition as possible, as promptly as possible
following the completion of any work within a Utility, Drainage or Irrigation Easement.
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9.6 Water Body Maintenance Easements. There are hereby created, granted and
reserved for the use and benefit of Declarant and the Master Association perpetual, non-
exclusive "Water Body Maintenance Easements" in the locations shown on the Plat or on any
Supplemental Plat, for purposes of operating; maintaining, repairing and improving the bodies of
water (reservoirs, lakes, ponds, etc.) and associated improvements and facilities served by such
easements, as may be deemed necessary or appropriate from time to time by the Declarant or the
Master Association.
9.7 Fence Maintenance Easements. There are hereby created, granted and reserved
for the use and benefit of Declarant and the Master Association perpetual, non-exclusive " Fence
Maintenance Easements" in the locations shown on the Plat or on any Supplemental Plat, for
purposes of maintaining, repairing and improving fences, and for the control of vegetation within
the easements, as may be deemed necessary or appropriate from time to time by Declarant or the
Master Association.
9.8 Berm Maintenance Easements. There are hereby created, granted and reserved
for the use and benefit of Declarant and the Master Association perpetual, non-exclusive "Berm
Maintenance Easements" in the locations shown on the Plat or any Supplemental Plat, for
purposes of maintaining, repairing and improving berms, and for the control of vegetation within
the easements, as may be deemed necessary or appropriate from time to time by Declarant or the
Master Association.
9.9 Equestrian/Pedestrian Trail Easement. There is hereby created, granted and
reserved for the use and benefit of the Declarant, the Master Association, and all Owners and
Occupants, a perpetual, non-exclusive "Equestrian/Pedestrian Trail Easement" in the location
shown on the Plat and on any Supplemental Plat, for purposes of constructing, using and
maintaining an equestrian and pedestrian trail. Members of the public shall also have the right to
use the Equestrian/Pedestrian Trail Easement, for equestrian purposes only, provided they first
check in at the Equestrian Center. The Master Association shall be responsible for maintaining
the Equestrian/Pedestrian Trail Easement.
9.10 Pedestrian/Bike Trail Easement. There is hereby created, granted and reserved
for the use and benefit of the Declarant, the Master Association and all Owners and Occupants,
but not members of the public, a perpetual, non-exclusive "Pedestrian/Bike Trail Easement" in
the location shown on the Plat and on any Supplemental Plat, for purposes of constructing, using
and maintaining a non-motorized bicycle and pedestrian trail. The Master Association shall be
responsible for maintaining the Pedestrian/Bike Trail Easement.
9.11 Conservation Easement. There is hereby created, granted and reserved for the
use and benefit of the Association a perpetual, non-exclusive "Conservation Easement" upon all
portions of the Lots in all residential zone districts that lie outside of the platted Building
Envelopes, for purposes of preserving an enhancing the wildlife habitat in the Conservation
Easement area and the open space character of the Conservation Easement area. No disturbance
shall be allowed in the Conservation Easement area, including without limitation excavation,
grading or clearing activities, Improvements, and landscaping; provided, however, that the
following activities are expressly allowed within the areas subject to the Conservation Easement:
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(a) vegetation manipulation where required by the Wildfire Mitigation Plan or
as undertaken by the Wildlife and Wildfire Trust;
(b) disturbance required in connection with the construction and maintenance
of and access to underground utilities, irrigation and drainage systems, and access
driveways and driveway features approved by the Design Review Committee, including
retaining walls, guard rails, driveway lighting, landscaping, and gate/entry features;
(c) disturbance required in connection with the construction and maintenance
of and access to retaining walls, debris flow and rockfall barriers or other engineered
structures necessary for the development and protection of structures and common
elements;
(d) removal of deadfall and selective thinning of vegetation, including but not
limited to opening view corridors from the residence with the prior written approval of
the Design Review Committee
(e) construction, operation and maintenance of and access to individual
sewage treatment systems.
The Association shall have the obligation and authority to enforce these restrictions, and
shall be responsible for managing, administering and maintaining the Conservation Easement
areas in accordance with the purposes described above and in compliance with this Wildlife
Mitigation Plan.
9.12 Open Space and Wildlife Movement Corridor Easements. There are hereby
created, granted and reserved for the use and benefit of the Master Association perpetual, non-
exclusive Open Space and Wildlife Movement Corridor Easements over, across and upon those
portions of the Common Interest Community that are designated as "Open Space" or "Wildlife
Movement Corridor" on the Plat or on any Supplemental Plat, for purposes of preserving and
enhancing wildlife habitat and the open space character of the Open Space areas and of
preserving and enhancing wildlife movement along the Wildlife Corridor areas. In addition to
activities necessary or appropriate for the furtherance of such purposes, permitted uses in the
Open Space areas will be such trail uses as may be depicted on the Plat or any Supplemental
Plat, and permitted uses in the Wildlife Corridor areas will be such trail uses as may be depicted
on the Plat or any Supplemental Plat. The Master Association shall have the obligation and
authority to enforce these restrictions, and shall be responsible for managing, administering and
maintaining the Open Space and Wildlife Movement Corridor areas in accordance with the
purposes described above and in compliance with the provisions of the Wildlife Mitigation Plan.
The Declarant, in its sole discretion, and without requiring the consent of any Owner or
Mortgagee or Special District or the Master Association, may subject the Open Space areas to
conservation easements or allow the Open Space areas to be held for resource or wetland
mitigation land banking.
9.13 Defensible Space, Fuels Reduction Easements and Fuelbreak Easements.
The Defensible Space Easement, Fuels Reduction Easement and Fuelbreak Easement described
in the Wildfire Mitigation Plan, Article X, below.
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9.14 Meadow Parcel Easement. There is hereby created, granted and reserved for the
use and benefit of the Master Association a perpetual, non-exclusive "Meadow Parcel Easement"
over, across and upon the portion of the Common Interest Community that is designated as the
"Meadow Parcel" on the Plat, for purposes of preserving and enhancing the open-space character
of the Meadow Parcel. Permitted uses of the Meadow Parcel shall be in the discretion of the
Master Association, and may include without limitation the grazing of cattle and/or horses,
agricultural (hay or wheat) production, sleigh rides and hay rides, and underground utilities, and
such trail uses as may be depicted on the Plat. The Master Association shall have the obligation
and authority to enforce these restrictions, and shall be responsible for managing, administering
and maintaining the Meadow Parcel in accordance with the purposes generally described above
and in compliance with the provisions of the Wildlife Plan.
9.15 Park Easements. There are hereby created, granted and reserved for the use and
benefit of the Declarant, the Master Association and all Owners and Occupants, but not members
of the public, perpetual, non-exclusive "Park Easements" over, across and upon all portions of
the Common Interest Community that are designated as "Parks" on the Plat or on any
Supplemental Plat, for such park and recreational purposes as may be determined to be
appropriate from time to time by the Master Association. Permitted uses of the Parks may
include, without limitation, picnicking, picnic areas and shelters, gazebos, recreational activities
and facilities such as softball, soccer, volleyball and horseshoes, and such trail uses as may be
depicted on the Plat or any Supplemental Plat. The Master Association shall have the obligation
and authority to enforce these restrictions, and shall be responsible for managing, administering
and maintaining the Parks in accordance with the purposes generally described above.
9.169.14 Shared Driveway Easements. There are hereby created, granted and
reserved for the use and benefit of the Lots and Lot Owners served thereby, the Declarant, the
Master Association, and any Special Districts, perpetual, non-exclusive easements and rights-of-
way over, across, along and under the Shared Driveway Easements depicted on the Plat or on
any Supplemental Plat, for purposes of access, ingress and egress (both vehicular and pedestrian,
but not parking) to and from the Lots served thereby and for the installation, operation,
maintenance, repair and replacement of underground utilities that serve said Lots. The Declarant
shall be responsible for constructing a driveway within each Shared Driveway Easement. The
Master Association (or a Special District pursuant to a contract with the Master Association)
shall be responsible for snowblowing the driveways within the Shared Driveway Easements, and
for maintaining and repairing the driveways as closely as possible to the condition that existed
upon completion of construction thereof, ordinary wear and tear excepted. The costs and
expenses incurred by the Master Association in the performance of such services (or the charges
made by a Special District to the Master Association for performing such services) shall be
Common Expenses which shall be assessed in equal shares among all Lots (and Lot Owners)
served by Shared Driveway Easements, regardless of the length of particular driveways, the
number of Lots served thereby, the improved or unimproved state of the Lots served thereby, or
how much of a given driveway is actually used by a Lot Owner. The annual Assessments for
such Lot Owners shall also include a reasonable reserve for the estimated cost of periodically
resurfacing the driveways within the Shared Driveway Easements.
If an Owner or Occupant (or an employee, contractor or agent thereof) damages a
driveway within a Shared Driveway Easement, whether during the construction of improvements
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on the Owner's Lot or otherwise, said Owner shall be responsible for promptly repairing and
restoring the damaged driveway as closely as possible to the condition that existed immediately
prior to the occurrence of the damage. If an Owner fails to repair and restore a damaged
driveway within 30 days following receipt of written notice from the Design Review Committee
requesting the same, the Master Association shall have the authority and obligation to
accomplish such repair and restoration and to levy a Reimbursement Assessment on the Owner
and the Owner's Lot for all costs and expenses incurred by the Master Association (or a Special
District pursuant to contract) in connection therewith, together with attorney's fees and other
costs of collection.
If an Owner of a Lot served by a Shared Driveway Easement wishes to make additional
driveway improvements within the Shared Driveway Easement; he shall have the right to do so
at his sole cost (or to share such cost with any other Lot Owners that agree to do so), provided
that such improvements do not obstruct or interfere in any way with the driveway or with the
free flow of vehicular and pedestrian traffic over and upon the driveway, and provided that any
such improvements are consistent with the Design Guidelines and receive the prior written
approval of the Design Review Committee.
Each Owner of a Lot served by a Shared Driveway Easement shall be responsible for
obtaining and maintaining in effect at all times a policy of comprehensive public liability
insurance against claims for bodily injury, death or property damage occurring in or upon or in
connection with the use of the Shared Driveway Easement and the improvements thereon, in the
minimum amount of $1,000,000.00.
In the event of a dispute between the Owners of Lots served by a Shared Driveway
Easement relating to the use, maintenance or improvement of the Shared Driveway Easement,
which dispute cannot be resolved by good faith negotiations, any such Owner may submit the
dispute to the Design Review Committee for resolution, which resolution shall be binding on the
affected Owners. The Design Review Committee shall have exclusive jurisdiction with respect
to such disputes.
9.179.15 Easements for Benefit of Club Property. The Declaration of Easements
and Rights establishes certain non-exclusive easements over, across and upon portions of the
Common Interest Community for the use and benefit of the Club Property. Said easements shall
be used for the purposes and in the manner provided in the Declaration of Easements and Rights.
9.189.16 Blanket Emergency Services Easement. There is hereby created,
granted and reserved for the use and benefit of all police, sheriff, fire protection, ambulance and
other similar emergency agencies or persons, now or hereafter serving the Common Interest
Community and its Owners and Occupants, a perpetual, non-exclusive blanket Emergency
Services Easement over, upon, along and across all streets, roads, Shared Driveways, properties
and areas within the Common Interest Community, for use in the lawful performance of their
duties.
9.199.17 Easements Deemed Created. All conveyances of Lots and Cabin
Interests and Association Property hereafter made, whether by Declarant or otherwise, shall be
deemed and construed to grant and reserve all of the easements referred to in this Article 9 and
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elsewhere in this Master Declaration and in any Supplemental Declaration, even though no
specific reference to such easements appears in the conveyancing instruments.
9.209.18 Restrictions on Owners in Easement Areas. Owners of Lots and Cabin
Interests that are subject to any easements created by this Master Declaration, a Supplemental
Declaration, or a recorded Plat, shall acquire no right, title or interest in any cables, conduits,
mains, lines, or other equipment or facilities or improvements that may be installed upon, over or
under the easement area by a beneficiary of said easement rights. Moreover, Owners and
Occupants of Lots and Cabin Interests that are subject to any such easements are hereby
prohibited from constructing any improvements upon the easement areas, altering or obstructing
the flow of any water or drainage thereon, or landscaping the same, in any manner that might
interfere with the full and proper exercise of said easement rights by any beneficiary thereof.
Finally, said Owners and Occupants are hereby prohibited from violating any of the restrictions
relating to the use of the easement areas as may be set forth in this Master Declaration, any
Supplemental Declaration, the Wildfire Mitigation Plan or in the Wildlife Mitigation Plan. Any
Owner or Occupant violating any of these restrictions shall be obligated to remove the offending
improvement or landscaping and to restore the surface of the area to its original condition at the
Owner's cost and expense, or otherwise to remedy the violation, within 30 days following a
written request therefor from any easement beneficiary. If said Owner or Occupant fails to
comply with the request in a timely manner, the Master Association shall have the right to enter
upon the Owner's Lot to perform the necessary work and may assess the costs thereof against the
Owner and the Owner's Lot in the form of a Reimbursement Assessment.
9.219.19 Recorded Easements and Licenses. In addition to the easements
described in this Article 9 and elsewhere in this Master Declaration, the recorded and
prescriptive easements and licenses appurtenant to or included in the Common Interest
Community are set forth on Exhibit D attached hereto and made a part hereof by this reference
ARTICLE X
WILDFIRE MITIGATION PLAN
10.1 Wildfire Mitigation Plan. The potential for wildfire in Spring Valley Ranch
poses a risk to life, property, wildlife and habitat. The Association shall work closely with the
Landis Creek Metro District (“District”) and the Authority Having Jurisdiction to take necessary
and reasonable steps to mitigate such risk. In this regard, wildfire risk assessment and
recommended wildfire mitigation activities have been developed in the Wildfire Mitigation
Report prepared by Anchor Point Group, dated February 2007, which is part of the records of the
Zoning approval for Spring Valley Ranch in Garfield County, Colorado. The Association shall
contract with the District, the Authority Having Jurisdiction and a wildfire expert to review and
update the Wildfire Mitigation Report as appropriate on a regular periodic basis, but at least once
one year following the recordation of this Declaration, and once every three years thereafter.
The Wildfire Mitigation Plan may be revised upon the joint consent of the Board of Directors of
the Association, the District and the Authority Having Jurisdiction. The easements established
herein shall be blanket, variable easements over Spring Valley Ranch that shall be subject to
modification in accordance with the Wildfire Mitigation Report as the same may be revised from
time to time.
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10.2 Access, Inspection and Enforcement. All Lots shall be subject to inspection by
the Association, the Authority Having Jurisdiction and the District to assure compliance with the
Wildfire Mitigation Plan. The Association will notify the Owner and/or Occupant of any Lot on
which corrective actions must be taken. If the Owner or Occupant does not initiate compliance
with the Wildfire Mitigation Plan within 10 days, the Association may contract for the corrective
work to be performed by a third party. Any such third party shall have access to the Lot to
perform such work, and the Owner and Occupant shall hold such third party harmless from any
liability associated with such access and corrective work. All such work shall be at the expense
of the Owner of the Lot on which such work is performed, and the Association shall have a lien
on such Lot for such expenses.
10.3 Defensible Space and Defensible Space Easement. The Owners and Occupants
of all habitable structures in the Spring Valley Ranch shall develop and maintain defensible
space, in accordance with the guidelines in the Wildfire Mitigation Report, as said guidelines are
applied to actual field conditions from site to site within the Spring Valley Ranch and as the
Wildfire Mitigation Report may be revised as provided herein. Plans for the development of
defensible space shall be submitted to and approved by the Design Review Committee at the
time of initial approval of construction. No Owner or Occupant shall place or dispose of any
combustible materials or yard waste within a defensible space. There is hereby created, granted
and reserved for the use and benefit of the Owners and Occupants of Lots adjoining Open Space,
a non-exclusive Defensible Space Easement within the Open Space areas shown on Exhibit E__
attached hereto and incorporated herein by this reference, to allow Owners and Occupants to
extend and maintain defensible space beyond their property line if an extended distance is
required and approved by the Design Review Committee.
10.4 Fuels Reduction Easement. There is hereby created, granted and reserved for
the use and benefit of the Association and the District perpetual, non-exclusive Fuels Reduction
Easements within those areas generally depicted on Exhibit F__ attached hereto and incorporated
herein by this reference, having such variable width and for purposes of such vegetation
manipulation as may be consistent with the guidelines described in the Wildfire Mitigation
Report, as said guidelines are applied to actual field conditions from site to site within the Spring
Valley Ranch and as the Wildfire Mitigation Report may be revised as provided herein. The
implementation of the guidelines, based upon field conditions, and on-going annual inspection
and maintenance of the vegetation manipulation, shall be the responsibility of the Association,
the District, or a successor entity with such jurisdiction.
10.5 Fuelbreak Easement. There is hereby created, granted and reserved for the use
and benefit of the Association and the District perpetual, non-exclusive Fuelbreak Easements
within those areas generally depicted on Exhibit F__ attached hereto and incorporated herein by
this reference, having such variable width and for purposes of such vegetation manipulation as
may be consistent with the guidelines described in the Wildfire Mitigation Report, as said
guidelines are applied to actual field conditions from site to site within the Spring Valley Ranch
and as the Wildfire Mitigation Plan may be revised as provided herein. The implementation of
the guidelines, based upon field conditions, and on-going annual inspection and maintenance of
the vegetation manipulation, shall be the responsibility of the Association, the District, or a
successor entity with such jurisdiction.
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10.6 Linked Defensible Space and Overlot Thinning. Prior to the construction of
any habitable structure on Lots identified in the Wildfire Mitigation Report, as revised, as
requiring over-lot thinning and linked defensible space, the Owner or Occupant shall implement
and maintain over-lot thinning and linked defensible space on such Lots as said guidelines are
applied to actual field conditions from site to site within the Spring Valley Ranch and as the
Wildfire Mitigation Report may be revised as provided herein. The Design Review Committee
shall verify that such treatments have been completed before allowing construction and that such
treatments are maintained on such Lots.
10.7 Universal Construction Standards.
(a) All construction within Spring Valley Ranch shall utilize a Class “A” roof
covering. Class “A” roof assemblies is prohibited.
(b) Cedar siding and other use for cedar materials on the exterior of any
structure is prohibited.
10.8 Specific Construction Standards. Prior to the construction of any habitable
structure on Lots identified in the Wildfire Mitigation Plan, as revised, as having fuel model 6,
the Owner or Occupant shall implement and maintain over-lot thinning on these Lots sufficient
to convert the fuel model from 6 to fuel model 2. The Design Review Committee shall verify that
such treatments have been completed before allowing construction and that such treatments are
maintained on such Lots. If no over-lot thinning is undertaken on such Lots, structures built on
such Lots shall comply with Section 504 Class 1 ignition resistant construction as described in
the 2006 International Urban Wildland Interface Code, as the same may be amended.
ARTICLE XI
WILDLIFE MITIGATION PLAN
11.1 Wildlife Mitigation Plan. Recognizing that one of the primary attributes of the
Spring Valley Ranch is the wildlife that occupies the area, the development of the property has
been designed to minimize disturbances to wildlife habitat and to avoid disturbances to wildlife
to the extent reasonable and practicable. The Wildlife and Wildfire Trust established in these
Covenants also will serve to enhance wildlife habitat and undertake wildfire protection on the
property. In addition, Owners and Occupants of Spring Valley Ranch should recognize their
activities and use of their property will have impacts on wildlife. Therefore, all Owners and
Occupants shall comply at all times with the following terms and provisions of this Wildlife
Mitigation Plan.
11.2 Garbage, Trash; Compost, Containers. No refuse, garbage, trash, grass, shrub,
or tree clippings, plant waste, compost, metal, bulk materials, scrap, rubbish, or debris of any
kind shall be kept, stored, maintained or allowed to accumulate or remain on any Lot or on
Association Property except temporarily within an enclosed bear-proof structure approved by the
Design Review Committee, except that any approved container containing such materials may be
placed next to the street not earlier than 6:00 a.m. on the designated morning of garbage
collection and must be returned to its enclosed structure that same day. Notwithstanding the
foregoing, trash or garbage shall not be kept outdoors unless it is within a locked, roofed, "bear
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proof" enclosure or in a "bear proof" garbage container approved by the Colorado Division of
Wildlife. Compost piles must also be contained within "bear proof" enclosures. No garbage
containers, trash cans or receptacles shall be maintained in an unsanitary or unsightly condition,
and except when placed for pickup, they shall not be visible from another Lot or Association
Property. All such refuse, garbage, trash, plant waste, compost, metal, scrap materials, rubbish
and debris shall be promptly removed from Spring Valley Ranch and shall not be burned
thereon. Compost structures and containers shall not be placed on a Lot, other than on District
property, subject to the reasonable approval of the Design Review Committee.
11.3 Animals and Wildlife. Except as specifically permitted below, no animals,
reptiles, primates, fish, fowl or insects of any kind shall be kept, raised, bred, maintained or
boarded within or upon any part of Spring Valley Ranch.
(a) Each Lot shall be entitled to a maximum of one (1) dog, one (1) cat and a
reasonable number of other household pets, so long as such dog, cat or other household
pets are not kept for any commercial purpose, are not kept in unreasonable numbers, do
not cause an unreasonable amount of noise or odor, or do not otherwise become a
nuisance to other Owners or Occupants. Contractors, subcontractors, and authorized users
of the Club Property may not bring dogs, cats or other pets into Spring Valley Ranch. In
the event that the Garfield County Subdivision Regulations are ever amended so as to
prohibit dogs on some or all of the Lots in Spring Valley Ranch, then the more restrictive
of said Subdivision Regulations shall govern the issue of how many dogs are allowed on
each Lot.
(b) In order for a dog to be permitted on a Lot, the dog must either be kept
indoors at all times or in a fenced kennel or dog run (not exceeding 500 square feet in
size) constructed within the Building Envelope on the Lot pursuant to the prior written
approval of the Design Review Committee. Dogs may never be kept outdoors during the
night unless such fenced enclosure is safe from predators. A permitted dog, cat or other
household pet must be fenced or restrained at all times upon the Owner's or Occupant's
Lot, and shall not be permitted outside such Lot, except when on a leash not exceeding 12
feet in length or undergoing obedience training under the direct control of the pet's owner
or the owner's representative. The Association shall have the right to designate specific
areas within Spring Valley Ranch where pets may be walked on leashes. All household
pets shall be properly immunized and otherwise maintained and cared for as required by
applicable laws. All dogs and cats must be spayed or neutered, unless such dog or cat is
being competitively shown.
(c) The Owner(s) of a Lot where a household pet is kept, as well as the legal
owner of the pet (if not such Owner) shall be jointly and severally liable for any and all
damage and destruction caused by the pet, and for any clean-up of the Owner's Lot, other
Lots or property and streets and sidewalks necessitated by such pet.
(d) Pet food shall not be kept outdoors overnight. Bird feeders, including
specifically hummingbird feeders, shall not be kept outdoors overnight except during
bear hibernation season.
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(e) With the exception of bird feeders as provided herein, the feeding, baiting,
salting, or other means of attracting wildlife to Lots or development facilities is
prohibited.
(f) The Association shall be responsible for enforcing the restrictions set
regarding pets and shall have the right and authority: i) to determine in its sole discretion
that dogs, cats and other household pets are being kept for commercial purposes, or are
being kept in unreasonable numbers, or are causing an unreasonable amount of noise or
odor, or are otherwise a nuisance to other Owners or Occupants, or that an Owner or
Occupant is otherwise in violation of this Section; and ii) to take such action or actions as
it deems reasonably necessary to remedy the violation, including without limitation the
levying of fines and/or reimbursement assessments. Also, without limiting the generality
of the foregoing, the Association may require the owner or custodian of a dog that barks
or howls excessively, or of a dog, cat, or other household pet that harasses wildlife, has
other offensive habits or otherwise violates the restrictions regarding pets, to confine such
animal indoors, or to permanently remove such animal from Spring Valley Ranch.
(g) Horses may be kept on Lots where allowed by applicable zoning, subject
in each instance to such rules, regulations and conditions as may be adopted from time to
time by the Association. All hay storage must at a minimum be enclosed by an 8- foot
mesh fence at the expense of the Lot Owner which fencing must first be approved as to
location and materials by the Design Review Committee.
11.4 Raptor Nest Protection. Prior to initiation of construction of infrastructure or
facilities by the Declarant, Owner or Occupant, any district, utility provider, the Club or the
Association, a qualified biologist will be retained by the development or the Association to
conduct a raptor nesting survey. If an active raptor nest exists on Spring Valley Ranch, heavy
outdoor construction (e.g., earth-moving and exterior house construction) shall be prohibited
within a radius of either 300 feet (if the nest is located in a conifer) or 400 feet (if the nest is
located in an aspen or cottonwood) until the young have fledged or the nest naturally fails. A
typical fledgling date for the area is July 1.
11.5 Wildlife Damage. The Declarant, for itself and its successors and assigns,
including but not limited to all Owners and Occupants and the Association, hereby waives and
releases all claims against the State of Colorado, Division of Wildlife with regard to wildlife
damage in Spring Valley Ranch.
11.6 Wetlands and Riparian Areas.
(a) Plowing and storing of snow shall not occur on wetland or riparian areas,
except on bridges.
(b) No development shall occur within 75 feet of the high- water mark of the
riparian portions of Landis Creek.
(c) Any bridge construction that may impact streams will be restricted to the
period July 15 to October 15.
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11.7 Golf Course and Open Space Management.
(a) All persons within the PUD are prohibited from chasing, scaring,
frightening, disturbing or otherwise harassing wildlife as a part of efforts to force wildlife
off golf courses and open space areas during the winter feeding and spring/summer
production seasons.
(b) The owner/operator of the golf course has the right to locally restrict
wildlife from golf course tees, greens, landscaping clumps and other sensitive areas by
using temporary fencing and other passive means. Any fencing erected will not restrict
free movement of wildlife but will be used only in small, isolated areas to help direct
wildlife and/or people.
(c) The Best Management Practices Plan for the golf course will be
implemented to apply the proper procedures for the application of fertilizers, herbicides,
insecticides and any other chemicals.
(d) Disturbed ground caused by road construction will be reclaimed using
native vegetation that is less palatable to deer and elk.
11.8 Trail Seasonal Use Restrictions. Recognizing that the use of trails during
certain times of the year can have adverse effects on wildlife, the Association shall develop and
may revise in consultation with a wildlife biologist a seasonal trail usage plan. The plan shall
restrict pedestrian, biking, equestrian and vehicle trail usage as appropriate so as to minimize
disturbance to wildlife during critical periods such as the deer fawning and elk calving season
from May 1 to June 30, and deer and elk winter range period from December 1 through March
31. The plan shall apply to all areas of Spring Valley Ranch except the Residential/Cabin and
Open Space/Golf zone districts. The plan shall not apply to emergency vehicles and continued
access pursuant to existing easements for in-holdings and out-parcels not a part of Spring Valley
Ranch.
11.9 Tree and Natural Shrub Preservation. All Improvements within Spring Valley
Ranch shall be located, designed, and constructed so as to preserve and protect landmark trees to
extent reasonable and feasible under the circumstances. This restriction shall not apply to the
removal or trimming of dead or diseased vegetation, or to reasonable and necessary clearing by
an Owner in connection with the construction of improvements on a site previously approved by
the Design Review Committee. The Design Review Committee may approve the thinning of
trees within view corridors from the main house, but shall not grant such approval in locations
where a forest cover is essential for screening from neighboring home sites or from key points
along roads. Any violation of this Section shall subject the offending Owner to such penalties,
fines and/or other conditions as the Design Review Committee considers appropriate, including
without limitation the withdrawal or modification of previously granted development approvals,
or the requirement that replacement trees or shrubs of equivalent or different size and type be
planted and maintained by the Owner. The existing native vegetation shall be preserved in all
areas lying outside the platted Building Envelopes, except for such minimum disturbance as may
be required in connection with underground utilities, irrigation and drainage systems, and access
driveways and approved driveway features.
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The restrictions set forth in this Section shall not apply to activities undertaken pursuant to the
Wildfire Mitigation Plan or to activities of the Wildlife and Wildfire Trust that may be
performed from time to time by such Trust, Owners or Occupants, the Association, the District,
or their respective successors or assigns. Such activities shall not require the review or approval
of the Design Review Committee.
11.10 Weed Control. The Owner or Occupant of each Lot within a residential zone
district shall be responsible for maintaining healthy vegetation free of infestations of noxious
weeds. The Association may inspect Lots periodically and will notify the Owner and/or
Occupant of any Lot with a noxious weed infestation that corrective actions must be taken. If the
Owner or Occupant does not correct the weed infestation within 10 days, the Association may
contract for the corrective work to be performed by a third party. Any such third party shall have
access to the Lot to perform such work, and the Owner and Occupant shall hold such third party
harmless from any liability associated with such access and corrective work. All such work shall
be at the expense of the Owner of the Lot on which such work is performed, and the Association
shall have a lien on such Lot for such expenses.
11.11 Residential Landscaped Areas. The use of native vegetation that is less
palatable to deer and elk is encouraged within all residential landscaped areas. Lawns and
associated irrigated landscaping will be confined to the Building Envelopes, and shall be subject
to the following limitations:
(a) Residential/Mountain zone district – no more than 4,000 square feet per
Lot.
(b) Residential/Estate zone district – no more than 2,500 square feet per Lot.
(c) Residential/Ranch zone district – no more than 2,500 square feet per Lot.
(d) Residential/Cabin zone district – no more than 2,000 square feet per Lot.
(e) Residential/Pasture zone district – no more than 4,000 square feet per Lot.
11.12 Security Enforcement. IfFollowing the development and sale of all Lots of
Phase 2 of the Common Interest Community, the Association shall employs a private security
company within the Spring Valley Ranch, and shallthe Association may grant the security
company the necessary authority to enforce the provisions and restrictions of these Covenants,
including this Article 11, Wildlife Mitigation Plan.
ARTICLE XII
REAL ESTATE TRANSFER ASSESSMENTS TO THE WILDLIFE AND WILDFIRE
TRUST
12.1 Establishment. Transfer Assessments shall be levied on transfers of Lots or
Cabin Interests (or interests therein) in the manner provided in this Article, and shall provide
funding to a nonprofit organization established for such purposes and known as the Spring
Valley Wildlife and Wildfire Trust. Owner hereby covenants and agrees that, except as provided
in Section 12.4 below, a transfer assessment (“Transfer Assessment”) based on a percentage of
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the Consideration paid on the transfer of any portion of or interest in a Lot or Cabin Interest shall
be due and payable by the transferee of such interest at the time of transfer and shall apply to
each transfer of any portion of or interest in the Lot or Cabin Interest. The Transfer Assessment
shall be a minimum of two-tenths of one percent (0.2%) of the Consideration for such transfer.
Owner hereby waives, on behalf of itself and its successors in title, any right to challenge the
Transfer Assessment on any basis. Transfer Assessments shall not be paid with respect to the
transfer of any Lot or Cabin Interest from the Declarant or its successor as an initial sale, or to a
transfer by a Featured Builder. Transfer Assessments and any increase or decrease in the amount
of Transfer Assessments above two-tenths of one percent (0.2%) shall be made, established and
assessed as provided herein. The Association shall pay over to the Spring Valley Wildlife and
Wildfire Trust all Transfer Assessments immediately upon receipt. The Spring Valley Wildlife
and Wildfire Trust shall periodically review the Transfer Assessment program and make
recommendations to the Association regarding the amount thereof.
12.2 Purpose and Use of Transfer Assessments. The funds received by the Spring
Valley Wildlife and Wildfire Trust from the Transfer Fee shall be used (1) to acquire, through
itself or through qualified entities, open space within or adjacent to the Spring Valley Ranch
PUD, by deed, conservation easement, purchase of development rights or otherwise in order to
preserve the open, rural feeling of the Spring Valley Ranch PUD; (2) to undertake projects,
including in cooperation with state and federal agencies and other non-profit entities, for the
preservation, enhancement and mitigation of wildlife and wildlife habitat and the control of
weeds on common open space property located within the Spring Valley Ranch PUD and on
adjoining public and private lands; (3) to assist in the implementation of the Wildfire Mitigation
Plan, in accordance with the Wildfire Mitigation Report as the same may be revised from time to
time; (4) to develop wildlife education and enjoyment materials and facilities within the Spring
Valley Ranch PUD or for use by the owners, residents, guests and employees thereof; and (5) to
operate and maintain the Spring Valley Wildlife and Wildfire Trust, including pursuing actions
to collect and administer the Transfer Fee. Apportionment of the funds among these purposes
shall be determined by the Spring Valley Wildlife and Wildfire Trust in the exercise of its
discretion.
12.3 Definitions. For purposes of this Article XXII, the following words shall have the
meanings ascribed thereto.
(a) “Transfer" means and includes, whether in one transaction or in a series of
related transactions, any conveyance of ownership or title to any portion of or interest in a
Lot or fractional interest as evidenced by any deed or instrument or writing wherein or
whereby title to such Lot or fractional interest is granted or conveyed subject to the
exclusions provided herein, including but not limited to (i) the conveyance of fee simple
title to any Lot or fractional interest or interest therein (including any conveyance arising
out of an installment land contract or a lease containing an option to purchase), (ii) the
transfer of more than 50 percent of the outstanding shares of the voting stock of a
corporation (other than Declarant) which, directly or indirectly, owns one or more Lots or
fractional interests or interests therein, and (iii) the transfer of more than interest in net
profits or net losses of any partnership, limited liability company, joint venture or other
entity (each referred to hereinafter as a "Business Association") which, directly or
indirectly, owns one or more Lots or fractional interests or interests therein.
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(b) “Transferee" means and includes all parties to whom any interest in a Lot
or fractional interest passes by a transfer, and each party included in the term "transferee
shall have joint and several liability for all obligations of the transferee under this Article.
(c) The "fair market value" of the Lot or fractional interest or interest therein
subjected to transfer shall be the consideration, as such term is defined below, given for
the transfer.
(d) “Consideration" means and includes the total of money paid and the fair
market value of any property delivered, or contracted to be paid or delivered, in return for
the transfer of any Lot or fractional interest or interest therein, and includes any money or
property paid or delivered to obtain a contract right to purchase any Lot or fractional
interest or interest therein, and the amount of any note, contract indebtedness (including
without limitation, obligations which could be characterized as contingent land gain), or
rental payment received in connection with such transfer, whether or not secured by any
lien, mortgage, or other encumbrance, given to secure the transfer price or any part
thereof, or remaining unpaid on the property at the time of transfer, whether or not
assumed by the transferee. The term "consideration" does not include the amount of any
outstanding lien or encumbrance for taxes, special benefits or improvements in favor of
the United States, the State of Colorado, or a municipal or quasi-municipal governmental
corporation or district.
12.4 Exclusions. The Transfer Assessment shall not apply to any of the following,
except to the extent that they are used for the purpose of avoiding the Transfer Assessment:
(a) Any transfer to the United States, or any agency or instrumentality thereof,
the State of Colorado, any county, city and county, municipality, district or other political
subdivision of the State of Colorado;
(b) Any transfer in consequence of a gift of such property, where no
consideration other than love and affection, charitable donation or a nominal
compensation is evidenced by the terms of the instrument of transfer;
(c) Any transfer to Declarant, to any successor or assign of Declarant, to any
affiliate of Declarant, or to the Master Association;
(d) Any transfer, whether outright or in trust that is for the benefit of the
transferor or his or her relatives, but only if there is no more than nominal consideration
for the transfer. For the purposes of this exclusion, the relatives of a transferor shall
include without limitation all lineal descendants of any grandparent of the transferor, and
the spouses of the descendants. Any person's stepchildren and adopted children shall be
recognized as descendants of that person for all purposes of this exclusion. For the
purposes of this exclusion, a distribution from a trust shall be treated as a transfer made
by the grantors of the trust, in the proportions of their respective total contributions to the
trust;
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(e) Any transfer arising solely from the termination of a joint tenancy or the
partition of property held under common ownership, except to the extent that additional
consideration is paid in connection therewith;
(f) Any transfer or change of interest by reason of death, whether provided
for in a will, trust or decree of distribution;
(g) Any transfer made (aa) by a majority-owned subsidiary to its parent
corporation or by a parent corporation to its majority-owned subsidiary, or between
majority-owned subsidiaries of a common parent corporation, in each case for no
consideration other than issuance, cancellation or surrender of the subsidiary's stock; or
(bb) by a partner, member or a joint venturer (each a "Business Association Member") to
a Business Association in which the Business Association Member has not less than a 50
percent interest, or by a Business Association to a Business Association Member holding
not less than a 50 percent interest in such Business Association, in each case for no
consideration other than the issuance, cancellation or surrender of the interests in the
Business Association, as appropriate; or (cc) by a corporation to its shareholders, in
connection with the liquidation of such corporation or, distribution of property or
dividend in kind to shareholders, if the Lot or fractional interest is transferred generally
pro rata to its shareholders, and no consideration is paid other than the cancellation of
such corporation's stock; or (dd) by a Business Association to its Business Association
Members, in connection with a liquidation of the Business Association or other
distribution of property to the Business Association Members, if the Lot or fractional
interest is transferred generally pro rata to its Business Association Members, and no
consideration is paid other than the cancellation of the Business Association Members'
interests; or (ee) to a corporation or Business Association where such entity is owned in
its entirety by the persons transferring the Lot or fractional interest and such persons have
the same relative interests in the transferee entity as they had in the Lot or fractional
interest immediately prior to such transfer, and no consideration is paid other than the
issuance of each such persons' respective stock or other ownership interests in the
transferee entity; or (ff) by any person(s) or entity(ies) to any other person(s) or
entity(ies), whether in a single transaction or a series of transactions where the
transferor(s) and the transferee(s) are and remain under common ownership and control
as determined by the Executive Board in its sole discretion applied on a consistent basis;
provided, however, that no such transfer or series of transactions shall be exempt unless
the Executive Board finds that such transfer or series of transactions (x) is for no
consideration other than the issuance, cancellation or surrender of stock or other
ownership interest in the transferor or transferee; as appropriate, (y) is not inconsistent
with the intent and meaning of this Subsection, and (z) is for a valid business purpose and
is not for the purpose of avoiding the obligation to pay the Transfer Assessment. In
connection with considering any request for an exception, the Executive Board may
require the applicant to submit true and correct copies of all relevant documents relating
to the transfer setting forth all relevant facts regarding the transfer, stating that in their
opinion the transfer is exempt under said subsection, and setting forth the basis for such
opinion;
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(h) Any transfer made solely for the purpose of confirming, correcting,
modifying or supplementing a transfer previously recorded, making minor boundary
adjustments, removing clouds on titles, or granting easements, rights-of-way or licenses,
and any exchange of Lots or fractional interests between Declarant and any original
purchaser from Declarant of the one or more Lots or fractional interests being transferred
to Declarant in such exchange. To the extent that consideration in addition to previously
purchased Lots or fractional interests is paid to Declarant in such an exchange, the
additional consideration shall be a transfer subject to Assessment. To the extent that
Declarant, in acquiring by exchange Lots or fractional interests previously purchased
from Declarant, pays consideration in addition to transferring Lots or fractional interests,
the amount of such additional consideration shall be treated as reducing the original
assessable transfer original purchaser from Declarant, who exchanges with Declarant
Lots or fractional interests previously purchased from Declarant, to a refund steer
Association of the amount of the Transfer Assessment originally paid on that portion of
the original transfer;
(i) Any transfer pursuant to any decree or order of a court of record
determining or vesting title, including a final order awarding title pursuant to a
condemnation proceeding, but only where such decree or order would otherwise have the
effect of causing the occurrence of a second assessable transfer in a series of transactions
which includes only one effective transfer of the right to use or enjoyment of a Lot or
fractional interest;
(j) Any lease of any Lot or fractional interest (or assignment or transfer of
any interest in any such lease) for a period of less than thirty (30) years;
(k) Any transfer to secure a debt or other obligation or to release property
which is security for a debt or other obligation, including transfers in connection with
foreclosure of a deed of trust or mortgage or transfers in connection with a deed given in
lieu of foreclosure;
(l) The subsequent transfer(s) of a Lot or fractional interest involved in a "tax
free" or "tax deferred" exchange under the Internal Revenue Code wherein the interim
owner acquires property for the sole purpose of reselling that property within thirty (30)
days after the trade. In these cases, the first transfer of title is subject to Transfer
Assessment, and subsequent transfers will only be exempt as long as a Transfer
Assessment has been paid in connection with the first transfer of such Lot or fractional
interest in such exchange;
(m) The transfer of a Lot or fractional interest to an organization which is
exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue
Code, as amended (or any comparable statute), provided that the Executive Board
specifically approves such exemption in each particular case;
(n) Any transfer made by a corporation or other entity, for consideration, (1)
to any other corporation or entity which owns 100 percent of its equity securities (a
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"Holding Company"), or (2) to a corporation or entity whose stock or other equity
securities are owned, directly or indirectly, 100 percent by such Holding Company;
(o) Any transfer from a partially-owned direct or indirect subsidiary
corporation to its direct or indirect parent corporation where no consideration is paid for,
or in connection with, such transfer; however, unless such transfer is otherwise exempt,
such exemption shall apply only to the extent of the direct or indirect beneficial interest
of the transferee in the transferor immediately prior to the transfer. For example, if
corporation A owns 60 percent of corporation B, and corporation B owns 100 percent of
corporation C and corporation C conveys a Lot or fractional interest to corporation A for
$2,000,000, 60 percent of the price would be exempt and a Transfer Assessment would
be payable only on $800,000 (i.e., 40 percent of the $2,000,000 consideration);
(p) The consecutive transfer of a Lot or fractional interest or interest therein
wherein the interim owner acquires such Lot or fractional interest or interest for the sole
purpose of immediately reconveying such Lot or fractional interest or interest, but only to
the extent there is no consideration to such interim owner receives no right to use or
enjoyment of such Interest, provided the Executive Board specifically approves such
exemption each particular case. To the extent that consideration is paid to, or for the
benefit of, the interim owner, the additional consideration shall be a transfer subject to
Assessment. In these cases, the first transfer of title is subject to the Transfer Assessment
and subsequent transfers will only be exempt as long as a Transfer Assessment has been
paid in connection with the first transfer of such Lot or fractional interest or interest in
such consecutive transaction and only to the re is no consideration to the interim owner.
12.5 Payment and Reports. The Transfer Assessment shall be due and payable by the
transferee to the Association on the same day as the transfer giving rise to such Transfer
Assessment. Upon receipt of the Transfer Assessment, the Association shall pay all funds
received to the Spring Valley Wildlife and Wildfire Trust. With such payment, the transferee
shall make a written report to the Association and the Spring Valley Wildlife and Wildfire Trust
on forms prescribed by the Association and the Spring Valley Wildlife and Wildfire Trust, fully
describing the transfer and setting forth the true, complete and actual consideration for the
transfer, the names of the parties thereto, the legal description of the Lot or fractional interest or
interest transferred, and such other information as the Association and the Spring Valley Wildlife
and Wildfire Trust may reasonably require. If the full amount of the Transfer Assessment,
properly calculated, is not paid to the Association at the time of transfer of the Lot or fractional
interest (or interest therein) as provided herein, the delinquent Transfer Assessment shall bear
interest at the rate of twenty percent (20%) per annum from the date of transfer until paid in full,
shall constitute the personal, joint and several obligation and liability of the transferee(s), and the
Association shall have an Assessment Lien on the transferee's Lot or fractional interest for such
delinquent amount (together with accrued interest, and costs and attorneys' fees incurred in
collecting the same). The Association and the Spring Valley Wildlife and Wildfire Trust shall
obtain periodic reports of or check all transfers of record in the Office of the Clerk and Recorder
of Garfield County, Colorado for the purpose of verifying the Transfer Assessments due.
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ARTICLE XIII
MASTER ASSOCIATION
13.1 Master Association. The Master Association has been formed as a Colorado
nonprofit corporation under the Colorado Revised Nonprofit Corporation Act to manage the
affairs of the Common Interest Community. The Master Association shall serve as the
governing body for all of the Owners and Occupants for the protection, improvement, alteration,
maintenance, repair, replacement, administration and operation of Association Property, the
levying and collection of Assessments for Common Expenses and other expenses of the Master
Association, and such other matters as may be provided in this Master Declaration, any
Supplemental Declaration, the Articles, Bylaws, and Master Rules and Regulations. The Master
Association shall not be deemed to be conducting a business of any kind, and all funds received
by the Master Association shall be held and applied by it on behalf of the Owners in accordance
with the provisions of this Master Declaration, any Supplemental Declaration, the Articles and
the Bylaws.
13.2 Master Association Executive Board. The affairs of the Master Association
shall be managed by an Executive Board. The number, term, and qualifications of the members
of the Executive Board shall be fixed in the Articles of Incorporation or the Bylaws. A quorum
shall be deemed present throughout any meeting of the Executive Board if persons entitled to
cast at least fifty percent (50%) of the votes on the Executive Board are present at the beginning
of the meeting or grant their proxy as provided in C.R.S. Section 7-128-205(4). With the
exception of matters that may be discussed in executive session, as set forth in
Section 38-33.3-308(3-7) of the Act, all regular and special meetings of the Executive Board or
any committee thereof shall be open to attendance by all Members of the Master Association or
their representatives. Without limiting the generality of the foregoing, no Master Rule or
Regulation may be validly adopted during an executive session. Agendas for meetings of the
Executive Board shall be made reasonably available for examination by all Members of the
Master Association or their representatives.
The Executive Board shall have all of the powers, authority and duties granted or
delegated to it by the Act, this Master Declaration, any Supplemental Declaration, the Articles or
Bylaws. Except as provided in the Act, this Master Declaration, any Supplemental Declaration,
the Articles or Bylaws, the Executive Board may act in all instances on behalf of the Master
Association.
The Executive Board may not, however, act on behalf of the Master Association to
amend this Master Declaration, to terminate the Common Interest Community, or to elect
members of the Executive Board or determine the qualifications, powers and duties, or terms of
office of Executive Board members, but the Executive Board may fill vacancies in its
membership for the unexpired portion of any term.
The Executive Board may, by resolution, delegate portions of its authority to officers of
the Master Association, but such delegation of authority shall not relieve the Executive Board of
the ultimate responsibility for management of the affairs of the Master Association. If appointed
by Declarant, in the performance of their duties, the members of the Executive Board and the
officers of the Master Association are required to exercise the care required of fiduciaries of the
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Lot and Cabin Interest Owners. If not appointed by Declarant, no member of the Executive
Board and no officer shall be liable for actions taken or omissions made in the performance of
such member's or officer's duties except for wanton and willful acts or omissions.
13.3 Membership in Master Association. There shall be one Membership in the
Master Association for each Lot and each Cabin Interest within the Common Interest
Community. The Person or Persons who constitute the Owner of a Lot or Cabin Interest shall
automatically be the holder of the Membership appurtenant to that Lot or Cabin Interest, and
shall collectively be the "Member" of the Master Association with respect to that Lot or Cabin
Interest, and the Membership appurtenant to that Lot or Cabin Interest shall automatically pass
with fee simple title to the Lot or Cabin Interest. Declarant shall hold a Membership in the
Master Association for each Lot or Cabin Interest owned by Declarant. Membership in the
Master Association shall not be assignable separate and apart from fee simple title to a Lot or
Cabin Interest, and may not otherwise be separated from ownership of a Lot or Cabin Interest.
13.4 Voting Rights of Members. Each Lot in the Common Interest Community shall
be entitled to four (4) votes in the Master Association. If a Lot is divided into Cabin Interests
pursuant to a Supplement Declaration, the votes allocated to that Lot shall be reallocated equally
amongst the Cabin Interests created for the Lot, e.g., an undivided one-fourth Cabin Interest shall
have one vote in the Master Association. Occupants of Lots shall not have voting rights. If title
to a Lot or Cabin Interest is owned by more than one (1) Person, such persons shall collectively
cast their allocated vote(s). If only one of the multiple owners of a Lot or Cabin Interest is
present at a Master Association meeting, such owner is entitled to cast the vote(s) allocated to
that Lot or Cabin Interest. If more than one of the multiple owners is present, the vote(s)
allocated to that Lot or Cabin Interest may be cast only in accordance with the agreement of a
majority in interest of the owners. There is a majority agreement if any of the multiple owners
casts the vote(s) allocated to that Lot or Cabin Interest without protest being made promptly to
the person presiding over the meeting by any of the other owners of the Lot or Cabin Interest. In
the event of a protest made by one or more multiple owners, and a majority of the multiple
owners of the Lot or Cabin Interest cannot agree on how to cast their votes, any votes cast for
that Lot or Cabin Interest shall nevertheless be counted in determining the presence of a quorum
with respect to the issue being voted upon.
In accordance with Section 38-33.3-309 of the Act, and except as may otherwise be
provided in the Bylaws, a quorum is deemed present throughout any meeting of the Members of
the Master Association if persons entitled to cast at least twenty percent (20%) of the total
allocated votes in the Master Association are present, in person or by proxy, at the beginning of
the meeting.
Provided a quorum of allocated votes entitled to vote is present in person or by proxy, the
affirmative vote of a majority of the total allocated votes so present shall constitute approval of
any matter voted upon unless a different number is required on a particular matter by the Act,
this Master Declaration, any Supplemental Declaration, the Articles, or the Bylaws.
The vote(s) allocated to a Lot or Cabin Interest may be cast pursuant to a proxy duly
executed by a Lot or Cabin Interest Owner. If a Lot or Cabin Interest is owned by more than one
person, each owner of the Lot or Cabin Interest may vote or register protest to the casting of a
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vote by the other owners of the Lot or Cabin Interest through a duly executed proxy. A Lot or
Wi1derness Cabin Interest Owner may not revoke a proxy given pursuant to this Section except
by actual notice of revocation to the person presiding over a meeting of the Master Association.
A proxy is void if it is not dated or purports to be revocable without notice. A proxy shall
terminate eleven (11) months after its date, unless a different termination date is otherwise set
forth on its face.
No vote(s) allocated to a Lot or Cabin Interest owned by the Master Association may be
cast.
The Lot and Cabin Interest Owners, by a vote of sixty-seven percent (67%) of all
allocated votes present and entitled to vote at any meeting of the Lot and Cabin Interest Owners
at which a quorum is present, may remove any member of the Executive Board with or without
cause, other than a member appointed by Declarant.
13.5 Period of Declarant Control of Master Association. Notwithstanding any other
provisions hereof, Declarant shall have and hereby reserves the power to appoint and remove, in
its sole discretion, the members of the Executive Board and the officers of the Master
Association during the period commencing upon the Recording of this Master Declaration and
terminating no later than the earlier of (a) sixty (60) days after conveyance of seventy-five
percent (75%) of the Lots that may be created to Owners other than Declarant; or (b) two (2)
years after the last conveyance of a Lot by the Declarant in the ordinary course of business; or
(c) two (2) years after any right to add new Lots was last exercised by Declarant. For purposes of
determining said "Period of Declarant Control" under this Master Declaration and the Articles of
Incorporation and Bylaws of the Master Association, a Lot which is divided into Cabin Interests
shall be deemed conveyed by Declarant only upon the conveyance by Declarant of one hundred
percent (100%) of the Cabin Interests in such Lot.
During said Period of Declarant Control of the Master Association:
(a) Not later than sixty (60) days after conveyance of twenty-five percent
(25%) of the Lots that may be created to Owners other than 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 Lot and Cabin Interest Owners other than Declarant.
(b) Not later than sixty (60) days after conveyance of fifty percent (50%) of
the Lots that may be created to Owners other than Declarant, not less than thirty-three
and one-third percent (33-1/3%) of the members of the Executive Board must be elected
by Lot and Cabin- Interest Owners other than Declarant.
At any time prior to the termination of the Period of Declarant Control of the Master
Association, the Declarant may voluntarily surrender and relinquish the right to appoint and
remove officers and members of the Executive Board, but in such event Declarant may require,
for the duration of the Period of Declarant Control of the Master Association, that specified
actions of the Master Association or the Executive Board, as described in a Recorded instrument
executed by Declarant, be approved by Declarant before they become effective. As to such
actions, Declarant may give its approval or disapproval in its sole discretion and option, and its
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disapproval shall invalidate any such action by the Executive Board or the Master Association.
Not later than the termination of the Period of Declarant Control of the Master Association, the
Owners (including Declarant) shall elect an Executive Board of at least three (3) members, at
least a majority of whom must be Owners other than Declarant or designated representatives of
Owners other than Declarant, and the Executive Board shall elect the officers, with such
Executive Board members and officers to take office upon election. Pursuant to
Section 38-33.3-303(9) of the Act, within sixty (60) days after Owners other than Declarant elect
a majority of the members of the Executive Board, Declarant shall deliver to the Master
Association all property of the Owners and of the Master Association held or controlled by
Declarant, including without limitation the following items:
(a) The original or a certified copy of the recorded Master Declaration as
amended, the Master Association's Articles of Incorporation, Bylaws, minute books,
other books and records, and any rules and regulations which may have been
promulgated;
(b) An accounting for Master Association funds and financial statements from
the date the Master 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 Master 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 Master Association.
(c) The Master Association funds or control thereof;
(d) All of the Declarant's tangible personal property that has been represented
by the Declarant to be the property of the Master 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 Association Property, and inventories of these properties;
(e) A copy, for the nonexclusive use by the Master Association, of any 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 Owners, the Master
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;
(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 year prior to the date on which Lot and Cabin Interest Owners other than the
Declarant took control of the Master Association;
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(i) Written warranties of the contractor, subcontractors, suppliers, and
manufacturers that are still effective;
(j) A roster of Owners and Occupants and Mortgagees and their addresses
and telephone numbers, if known, as shown on the Declarant's records;
(k) Employment contracts in which the Master Association is a contracting
party; and
(l) Any service contract in which the Master Association is a contracting
party or in which the Master Association or the Owners have any obligation to pay a fee
to the persons performing the services.
13.6 Termination of Contracts and Leases of Declarant. The following contracts
and leases, if entered into before the Executive Board elected by the Owners pursuant to
Section 38-33.3-303(7) takes office, may be terminated without penalty by the Master
Association at any time after the Executive Board elected by the Owners pursuant to said
Section 38-33.3-303(7) takes office, upon not, less than ninety (90) days notice to the other
party: (i) Any management contract, employment contract or lease of recreational or parking
areas or facilities; (ii) Any other contract or lease between the Master Association and Declarant
or an affiliate of Declarant; or (iii) Any contract or lease that is not bona fide or was
unconscionable to the Owners at the time entered into under the circumstances then prevailing.
13.7 Master Association/Subassociations. Every Supplemental Declaration in which
a Subassociation is organized and/or established shall contain sufficient language pursuant to
Section 38-33.3-(220) of the Act delegating responsibilities and control and subordinating it to
the Master Association and to this Master Declaration to effectuate the purposes of this Master
Declaration. Each Supplemental Declaration shall provide that the Executive Board shall be
elected after the termination of the Period of Declarant Control of the Master Association by all
Owners of all Common Interest Communities subject to the Master Declaration. If both a
Subassociation and the Master Association have liens for Assessments created at any time on the
same Lots or Cabin Interests, the lien of the Master Association shall take priority over the lien
of any Subassociation.
ARTICLE XIV
POWERS AND DUTIES OF MASTER ASSOCIATION
14.1 General Powers and Duties of Master Association. The Master Association
shall have and may exercise all of the powers and rights and duties of a Colorado corporation
formed under the Colorado Revised Nonprofit Corporation Act, and all of the powers and duties
provided for in the Act including those enumerated in Section 38-33.3-302 of the Act, as such
laws may be amended from time to time, subject only to the limitations upon such powers as are
contained in this Master Declaration. More specifically, and without limiting the generality of
the foregoing, the Master Association shall have all of the powers and duties necessary (i) for the
administration, management, governance and operation of the Common Interest Community and
the Master Association, (ii) to own, operate, improve, maintain, repair, manage, lease, encumber,
and otherwise deal with Association Property, (iii) to improve, maintain and repair the Limited
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Common Areas, and (iv) to do any and all lawful things that may be authorized, required or
permitted to be done by the Master Association under the Act and/or under the provisions of this
Master Declaration and of any Supplemental Declarations.
14.2 Power to Grant Easements. The Master Association shall have the power to
grant access, utility, drainage, irrigation, and such other easements upon, over, across or under
Association Property as it deems necessary or desirable for the benefit of the Common Interest
Community or parts thereof, or for the benefit of all or less than all of the Owners, or for the
benefit of lands situated outside the Common Interest Community.
14.3 Power to Convey or Encumber Association Property. The Master Association
shall have the power to convey, or subject to a security interest, portions of the Association
Property if Owners entitled to cast at least sixty-seven percent (67%) of the allocated votes in the
Master Association, including sixty-seven percent (67%) of the votes allocated to Lots or Cabin
Interests not owned by Declarant, agree to that action, except that all Owner(s) of Lots to which
any Limited Common Area is allocated must agree in order to convey that Limited Common
Area or to subject it to a security interest. Proceeds of the sale are an asset of the Master
Association.
An agreement to convey, or subject to a security interest, Association Property must be
evidenced by the execution of an agreement, in the same manner as a deed, by the Master
Association. The agreement must specify a date after which the agreement will be void unless
approved by the required percentage of allocated votes. Any grant, conveyance or deed executed
by the Master Association must be Recorded in the County, and is effective only upon
Recordation. The Master Association, on behalf of the Owners, may contract to convey an
interest in an Association Property, but the contract is not enforceable against the Master
Association until approved, executed and ratified pursuant to this Section. Thereafter, the Master
Association shall have all the powers necessary and appropriate to effect the conveyance or
encumbrance, including the power to execute deeds or other instruments. Unless in compliance
with this Section any purported conveyance, encumbrance, judicial sale, or other transfer of
Association Property is void. A conveyance or encumbrance of Association Property pursuant to
this Section shall not deprive any Lot of its rights of (i) access, ingress and egress to the Lot, and
(ii) support of the Lot. A conveyance or encumbrance of Association Property pursuant to this
Section shall not affect the priority or validity of preexisting encumbrances.
14.4 General Power to Provide Services and Facilities to Owners. The Master
Association shall have the power, but not the obligation, to acquire, construct, operate, manage,
maintain, repair and administer services and facilities for the benefit of the Owners, or some of
them, including, without limitation, security, animal control, vegetation control, insect and pest
control, television service, parking facilities, transportation facilities, snow removal, signage,
(including entry monuments), lighting, (including seasonal lighting), fencing, landscape walls,
landscaping services and facilities, drainage facilities, including retention and detention ponds,
irrigation facilities; water features, trash and solid waste disposal services, including recycling
programs, utility services, recreational facilities and services, maintenance, and such other
services, functions and facilities as are deemed appropriate by the Executive Board. The
foregoing list shall not be deemed to be a representation by Declarant of services or facilities that
will in fact be available for use by the Owners. The Master Association may enter into such
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agreements and arrangements as it may deem appropriate with any provider of utilities or
services to the Common Interest Community or any portion thereof, including any Special
Districts that provide such services, and may form or join any districts created to provide such
services. The Master Association shall also have the right, but no obligation to enter into a "bulk
rate contract" for cable television and/or security monitoring services, in which case the Master
Association shall pay the contractual charges as a Common Expense.
14.5 Power to Provide Services to Subassociations. The Master Association shall
have the power, but not the obligation, to provide services to Subassociations. Such services to
any Subassociation shall be provided pursuant to an agreement in writing between the Master
Association and such Sub-association which shall provide for the payment by such
Subassociation to the Master Association of the costs and expenses of the Master Association of
providing such services to the Subassociation including a fair share of the overhead expenses of
the Master Association. Services which may be provided to a Subassociation may include,
without limitation, (a) the construction, care, operation, management, maintenance, repair, and
replacement of Improvements owned by the Subassociation; (b) the providing of services to the
area covered by the Subassociation; (c) the enforcement of the provisions of any Supplemental
Declaration for, on behalf of, and in the name of the Subassociation; (d) the collection of
assessments for, in the name of, and on behalf of a Subassociation; (e) the payment of taxes for a
Subassociation with funds of the Subassociation; (f) the obtaining of insurance for a
Subassociation; (g) the collection of charges for use of facilities of a Subassociation; and (h) the
appointment and supervision of a manager or managers for a Subassociation.
14.6 Power to Provide Special Services to Owners. The Master Association shall
have the power to provide services to an Owner or group of Owners. Any service or services to
an Owner or group of Owners shall be provided pursuant to an agreement in writing, or through
one or more Supplemental Declarations, which shall provide for payment to the Master
Association by such Owner or group of Owners of the costs and expenses of the Master
Association in providing such services, including a fair share of the overhead expenses of the
Master Association, and shall contain reasonable provisions assuring that the obligation to pay
for such services shall be binding upon any heirs, personal representatives, successors and
assigns of the Owner or group of Owners and that the payment for such services shall be secured
by a lien on the Lot(s) or Cabin Interest(s) of the Owner or a group of Owners.
14.7 Power to Charge for Special Association Property Uses and Special Master
Association Services. The Master Association shall have the power to establish reasonable
admission or other fees or charges for any special or extraordinary Association Property uses or
Master Association services such as special parking privileges, special recreation facilities,
conference rooms, instruction, or similar uses beyond the ordinary use of Association Property
and ordinary Master Association services. Such charges or fees shall be set forth in schedules of
charges and fees adopted from time to time by the Executive Board.
14.8 Power to Acquire Property and Construct Improvements. The Master
Association may acquire, hold, encumber and/or convey any right, title or interest in or to real or
personal property, including Improvements. The Master Association may construct
Improvements on Association Property and may demolish existing Improvements thereon.
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14.9 Power to Adopt Master Rules and Regulations. The Master Association may
adopt, amend, repeal, and enforce such Master Rules and Regulations as the Executive Board
may consider necessary, desirable or appropriate from time to time with respect to the
interpretation and implementation of this Master Declaration, the operation of the Master
Association, the use and enjoyment of Association Property (including Limited Common Areas),
and the use of any other property within the Common Interest Community, including Lots and
Cabin Interests. Any such Master Rules and Regulations shall be effective only upon adoption by
resolution at an open meeting of the Executive Board. Notice of the adoption, amendment, or
repeal of any Master Rule or Regulation shall be given in writing to each Owner, and copies of
the currently effective Master Rules and Regulations shall be made available to each Owner and
Occupant upon request and payment of the reasonable expense of copying the same. Each
Owner and Occupant (and all other Persons who are authorized users of Association Property)
shall comply with such Master Rules and Regulations, and each Owner shall see that Occupants
claiming through such Owner comply with such Master Rules and Regulations. Such Master
Rules and Regulations shall have the same force and effect as if they were set forth in and were
part of this Master Declaration. In the event of conflict between the Master Rules and
Regulations and the provisions of this Master Declaration, the provisions of this Master
Declaration shall govern. Such Master Rules and Regulations may establish reasonable and
uniformly applied penalties (including the levying and collection of fines) for the violation of
such Master Rules and Regulations or of any provision of this Master Declaration, the Articles,
or the Bylaws.
14.10 Power to Contract with Employees, Agents, Contractors, Districts,
Consultants and Managers. The Master Association shall have the power to contract with,
and/or to employ and discharge employees, agents, independent contractors and consultants,
including lawyers and accountants, and Special Districts, to perform any of the responsibilities of
the Master Association under this Master Declaration, including without limitation maintenance
responsibilities. The Master Association shall also have the power to retain and pay for the
services of a manager or managers, which may be an affiliate of Declarant, to undertake any of
the administrative or managerial responsibilities for which the Master Association may have
responsibility under this Master Declaration, to the extent deemed advisable by the Master
Association, and may delegate any of its duties, powers, or functions to any such manager.
Notwithstanding any delegation to a manager of any duties, powers, or functions of the Master
Association, the Master Association and its Executive Board shall remain ultimately responsible
for the performance and exercise of such duties, powers, and functions.
14.11 Power to Assign Future Income. The Master Association shall have the power
to assign its right to future income, including the right to receive Regular Assessments, but only
following the affirmative vote of at least fifty-one (51) percent of the total allocated votes in the
Master Association, at a duly-called meeting of the Members of the Master Association.
14.12 Duty to Accepnt Property and Facilities Transferred by Declarant. The
Master Association shall accept title to any real property, or interests in real property, including
any Improvements and personal property thereon, transferred to the Master Association by
Declarant, or Declarant's successors or assigns. Property interests transferred to the Master
Association by Declarant or its successors or assigns may include fee simple title, undivided
interests, easements, leasehold interests and licenses to use. Except as may otherwise be
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approved by the Executive Board, any property or interest in property transferred to the Master
Association by Declarant or its successors or assigns shall be within the boundaries of the
Common Interest Community; provided, however, that Declarant shall be entitled to transfer and
convey the beneficial use of an easement, subject to any obligations thereunder, located outside
of the Common Interest Community but which benefits the Master Association and the Owners.
Any property or interest in property transferred to the Master Association by Declarant
shall, except to the extent otherwise specifically approved by resolution of the Executive Board,
be transferred to the Master Association free and clear of all monetary obligations, liens and
encumbrances (other than the lien of property taxes and assessments not then due and payable),
but shall be subject to the terms of this Master Declaration, and easements, covenants,
conditions, restrictions, and equitable servitudes or other encumbrances of record or otherwise in
existence. Except as otherwise specifically approved by resolution of the Executive Board, no
property or interest in property transferred to the Master Association by Declarant shall impose
upon the Master Association any obligation to make monetary payments to Declarant or any
affiliate of Declarant, including, but not limited to, any purchase price, rent, charge, or fee.
Any Improvements or personal property transferred to the Master Association by
Declarant shall be in good working order, ordinary wear and tear excepted, and at the time of
transfer Declarant shall make any repairs reasonably required to bring the transferred property
into good working order. Subject only to the foregoing, the Master Association shall accept all
properties transferred to it by Declarant in their "Where Is, As Is" condition, without recourse of
any kind, and Declarant disclaims and shall not be deemed to make or to have made any
representations or warranties, express or implied, by fact or law, with' respect to the transferred
properties or any aspect or element thereof, including without limitation warranties of
merchantability, habitability, fitness for a particular purpose, or workmanlike construction.
14.13 Duty to Maintain and Care for Association Property. The Master Association
shall manage, operate, care for, maintain, repair and replace all Association Property and keep
the same in a functional, clean and attractive condition for the benefit and enjoyment of the
Owners. Except as otherwise specifically provided in this Master Declaration or in any
Supplemental Declaration, the Master Association shall also manage, operate, care for, maintain
and repair the Limited Common Areas.
14.14 Duty to Pay Taxes. The Master Association shall pay any taxes and assessments
levied upon Association Property (excepting Limited Common Areas) and any other taxes and
assessments payable by the Master Association before they become delinquent. The Master
Association shall have the right to contest any such taxes or assessments by appropriate legal
proceedings provided no sale or foreclosure of any lien for such tax or assessment occurs and
provided further that the Master Association shall keep and hold sufficient funds to pay and
discharge the taxes and assessments, together with any interest and penalties which may accrue
with respect thereto, if the contest of such taxes is unsuccessful.
14.15 Duty to Keep Master Association Records. The Master Association shall keep
financial records in sufficient detail to enable the Master Association to carry out its
responsibilities under this Master Declaration and to comply with the requirements of the Act,
including, but not limited to, current records of paid and unpaid Assessments for each Lot and
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Cabin Interest. All financial and other records of the Master Association shall be made
reasonably available for examination by the Owners and the authorized agents of the Owners.
14.16 Duty to Support Design Review Committee. The Master Association shall take
such actions, provide such funds, and do such other things as may be necessary or appropriate
from time to time to support and assist the Design Review Committee in the performance of its
responsibilities under this Master Declaration, and shall cooperate with said Committee to the
fullest extent possible in such matters.
14.17 Insurance. Commencing not later than the time of the first conveyance of a Lot
or Cabin Interest to a Person other than Declarant, the Master Association shall maintain and
keep in effect at all times the following types of insurance, and the cost of said coverage shall be
paid by the Master Association as a Common Expense:
(a) Casualty Insurance. To the extent reasonably available, property
insurance on all Association Property, including but not limited to Improvements and
personalty, owned or leased by the Master Association, and on all property that must
become Association Property. Such insurance shall be for broad form covered causes of
loss, including casualty, fire, and extended coverage insurance including, if available at
reasonable cost, coverage for vandalism and malicious mischief and, if available and if
deemed appropriate, coverage for flood, earthquake, and war risk. Such insurance shall,
to the extent reasonably obtainable, be for the full insurable replacement cost of the
insured property, less applicable deductibles at the time the insurance is purchased and at
each renewal date, exclusive of land, excavation, foundations and other items normally
excluded from property policies.
(b) Liability Insurance. Comprehensive general liability insurance against
claims and liabilities arising in connection with the ownership, existence, use,
maintenance or management of the Association Property (including the Limited Common
Areas), and covering public liability or claims of liability for injury to persons and/or
property, and death of any person or persons, and, if the Master Association owns or
operates motor vehicles, public liability or claims of liability for bodily injury (including
death) and property damage arising as a result of the ownership and operation of motor
vehicles. Such liability insurance for other than motor vehicle liability shall, to the extent
reasonably obtainable, (a) have limits of not less than Five Million Dollars
($5,000,000.00) per person and Five Million Dollars ($5,000,000.00) per occurrence;
(b) insure the Executive Board, the Design Review Committee, the Master Association
and its officers, the manager, if any, and their respective employees, agents and all
Persons acting as agents; (c) include the Declarant as an additional insured as its interests
may appear; (d) include the Owners as additional insureds, but only for claims and
liabilities arising in connection with the ownership, existence, use, maintenance or
management of Association Property; (e) cover claims of one or more insured parties
against other insured parties; (f) be written on an occurrence basis; and (g) shall name as
additional insureds such other parties as may be required by specific agreements.
(c) Contractual Liability Insurance. To the extent reasonably available,
contractual liability insurance covering such contractual obligations and liabilities,
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indemnifications, hold harmless agreements, and agreements to defend, as the Master
Association may have or be a party to from time to time, with coverage of at least Two
Million Dollars ($2,000,000.00) or such greater amount as the Executive Board shall
determine to be appropriate from time to time.
(d) Fidelity Bonds. To the extent reasonably available, fidelity bond coverage
against dishonest acts on the part of directors, officers, managers, trustees, agents,
employees or volunteers responsible for handling funds belonging to or administered by
the Master Association. If funds of the Master Association are handled by a management
agent, then fidelity bond coverage may also be obtained for the officers, employees, or
agents thereof handling or responsible for Master Association funds. The fidelity bond or
insurance must name the Master Association as the named insured and shall be written to
provide protection in an amount no less than the lesser of (a) one-half times the Master
Association's estimated annual operating expenses and reserves, (b) a sum equal to three
(3) months aggregate Regular Assessments, plus reserves, as calculated from the current
Budget of the Master Association; or (c) the estimated maximum amount of funds,
including reserves, in the custody of the Master Association (and its management agent)
at any one time. In connection with such coverage, an appropriate endorsement to the
policy to cover any person who serves without compensation shall be added if the policy
would not otherwise cover volunteers.
(e) Worker's Compensation. A Worker's Compensation policy, if necessary,
to meet the requirements of law.
(f) Directors and Officers Liability Insurance. Directors and officers liability
insurance with coverage of at least Two Million Dollars ($2,000,000.00) or such greater
amount as the Executive Board shall approve for all Master Association, Executive Board
and Design Review Committee directors, officers, members and managers, for any and
all errors and/or omissions and other covered actions that occur during their tenure in
office or employment. This insurance coverage shall be mandatory.
(g) Other Insurance. Such other insurance in such amounts as the Executive
Board shall determine, from time to time, to be appropriate to protect the Master
Association or the Owners, or as may be required by the Act.
(h) General Provisions Respecting Insurance. Insurance obtained by the
Master Association may contain such deductible provisions as good business practice
may dictate. If the insurance described is not reasonably available, or if any policy of
such insurance is canceled or not renewed without a replacement policy therefor having
been obtained by it, the Master Association shall promptly cause notice of that fact to be
delivered or sent prepaid by U.S. Mail to all Owners.
Insurance policies carried pursuant to Sections (a) and (b) above shall provide that
(i) each Owner is an insured Person under the policy with respect to liability arising out
of such Owner's interest in the Association Property or membership in the Master
Association; (ii) the insurer waives its rights of subrogation under the policy against the
Master Association, each Owner, and any Person claiming by, through, or under such
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Owner or any other director, agent, or employee of the foregoing; (c) no act or omission
by any Owner, unless acting within the scope of such Owner's authority on behalf of the
Master Association, will void the policy or be a condition to recovery under the policy,
and (d) if at the time of a loss under the policy, there is other insurance in the name of an
Owner covering the same risk covered by the policy, the Master Association's policy
shall be the primary insurance. An insurer that has issued an insurance policy for the
insurance described in Sections (a) and (b) above shall issue certificates or memoranda of
insurance to the Master Association and, upon request, to any Owner or holder of a
security interest. Unless otherwise provided by statute, the insurer issuing the policy may
not cancel or refuse to renew it until thirty (30) days after notice of the proposed
cancellation or nonrenewal has been mailed to the Master Association, and each Owner
and holder of a security interest to whom a certificate or memorandum of insurance has
been issued, at their respective last-known addresses.
Any loss covered by the property insurance policy described in Section (a) above must be
adjusted with the Master Association, but the insurance proceeds for that loss shall be
payable to any insurance trustee designated for that purpose, or otherwise to the Master
Association, and not to any holder of a security interest. The insurance trustee or the
Master Association shall hold any insurance proceeds in trust for the Master Association,
Owners and lienholders as their interests may appear. Subject to the provisions of
Section 38.33.3-313(9) of the Act, the proceeds must be disbursed first for the repair or
restoration of the damaged property, and the Master Association, Owners, and lienholders
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.
The Master Association may adopt and establish written nondiscriminatory policies and
procedures relating to the submittal of claims, responsibility for deductibles, and any
other matters of claims adjustment. To the extent the Master Association settles claims
for damages to real property, it shall have the authority to assess negligent Owners
causing such loss or benefiting from such repair or restoration for all deductibles paid by
the Master Association. In the event more than one Lot is damaged by a loss, the Master
Association in its reasonable discretion may assess each Lot Owner a pro rata share of
any deductible paid by the Master Association. Insurance obtained by the Master
Association shall, to the extent reasonably possible, and provided Declarant reimburses
the Association for any additional premium payable on account thereof, name Declarant
as an additional insured and shall contain a waiver of rights of subrogation as against
Declarant.
Insurance policies and insurance coverage shall be reviewed at least annually by the
Executive Board to ascertain whether coverage under the policies is sufficient in light of
the current values of the Association Property and in light of the possible or potential
liabilities of the Master Association and other insured parties. The aforementioned
insurance may be provided under blanket policies covering the Association Property and
property of Declarant.
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In no event shall insurance coverage obtained or maintained by the Master Association
obviate the need for Owners and Occupants to obtain insurance for their own benefit.
Furthermore, to the extent reasonably available, insurance policies obtained by the
Master Association shall contain the following provisions:
(i) The coverage afforded by such policies shall not be brought into
contribution or proration with any insurance which may be purchased by
an Owner, Occupant or Mortgagee.
(ii) The conduct of any one or more Owners or Occupants shall not constitute
grounds for avoiding liability on any such policies.
(iii) Each policy must contain a waiver of any defenses based on coinsurance
or on invalidity arising from the acts of the insured.
(iv) A "severability of interest" endorsement shall be obtained which shall
preclude the insurer from denying the claim of an Owner or Occupant
because of the conduct or negligent acts of the Master Association and its
agents or other Owners or Occupants.
(v) Any "no other insurance" clause shall exclude insurance purchased by
Owners, Occupants or Mortgagees.
(vi) Coverage must not be prejudiced by (i) any act or neglect of Owners or
Occupants when such act or neglect is not within the control of the Master
Association, or (ii) any failure of the Master Association to comply with
any warranty or condition regarding any portion of the Common Interest
Community over which the Master Association has no control.
(vii) Coverage may not be canceled or substantially modified without at least
thirty (30) days (or such lesser period as the Master Association may
reasonably deem appropriate) prior written notice to the Master
Association.
(viii) Any policy of property insurance which gives the carrier the right to elect
to restore damage in lieu of a cash settlement must provide that such
election is not exercisable without the prior written approval of the Master
Association, or when in conflict with the insurance trust provisions
contained herein, or any requirement of law.
(ix) A recognition of any insurance trust agreement entered into by the Master
Association.
(x) Each hazard insurance policy shall be written by a hazard insurance carrier
which has a financial rating as designated in Best's Key Rating Guide of
Class VI or better, or if such rating service be discontinued, an equivalent
rating by a successor thereto or a similar such rating service. Each
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insurance carrier must be specifically licensed or authorized by law to
transact business within the State of Colorado.
(i) Nonliability of Master Association or Executive Board. Notwithstanding
the duty of the Master Association to obtain insurance coverage, as stated herein, neither
the Master Association nor any Executive Board member, nor the Declarant, shall be
liable to any Owner, Occupant, Mortgagee or other Person, if any risks or hazards are not
covered by insurance, or if the appropriate insurance is not obtained because such
insurance coverage is not reasonably obtainable on the Master Association's behalf, or if
the amount of insurance is not adequate, and it shall be the responsibility of each Owner
and Occupant to ascertain the coverage and protection afforded by the Master
Association's insurance and to procure and pay for such additional insurance coverage
and protection as the Owner or Occupant may desire.
(j) Master Premiums. Premiums for insurance policies purchased by the
Master Association and other expenses connected with acquiring such insurance shall be
paid-by the Master Association as a Common Expense, except that (i) liability insurance
on Limited Common Areas shall be separately bid and the cost thereof shall only be
included in the Regular Assessments of the Lots entitled to use such Limited Common
Areas, and (ii) the amount of increase over any annual or other premium occasioned by
the use, misuse, occupancy or abandonment of a Lot or its appurtenances, or Association
Property, by an Owner or Occupant, may at the Executive Board's election, be assessed
against that particular Owner and his Lot or Cabin Interest as a Reimbursement
Assessment.
(k) Insurance Claims. The Master Association is hereby irrevocably
appointed and authorized, subject to the provisions contained herein, to adjust all claims
arising under insurance policies purchased by the Master Association and to execute and
deliver releases upon the payment of claims, and to do all other acts reasonably necessary
to accomplish any of the foregoing. The Executive Board has full and complete power to
act for the Master Association in this regard, and may, in its discretion; appoint an
authorized representative, or enter into an insurance trust agreement, wherein the trustee
shall have the authority to negotiate losses under any policy purchased by the Master
Association.
(l) Benefit. Except as otherwise provided herein, all insurance policies
purchased by the Master Association shall be for the benefit of, and any proceeds of
insurance received by the Master Association or any insurance trustee shall be held or
disposed of in trust for the Master Association, the Owners, or the Occupants, as their
interests may appear.
(m) Other Insurance to be Carried by Lot Owners. Insurance coverage on the
furnishings and other items of personal property belonging to a Lot or Cabin Interest
Owner or Occupant, public liability insurance coverage upon each Lot or Cabin Interest,
and casualty insurance coverage on the Improvements constructed on Lots, shall be the
responsibility of the Owner or Occupant of the Lot or Cabin Interest. No Lot or Cabin
Interest Owner or Occupant shall maintain any insurance, whether on its Lot or Cabin
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Interest or otherwise, which would limit or reduce the insurance proceeds payable under
the casualty insurance maintained by the Master Association in the event of damage to
the Improvements or fixtures on Association Property.
14.18 Damage to Common Interest Community. Any portion of the Common
Interest Community for which insurance is required under Section 38-33.3-313 of the Act
(except any portion on which insurance is carried by a Subassociation) which is damaged or
destroyed must be repaired or replaced promptly by the Master Association unless: (i) repair or
replacement is the responsibility of a Subassociation under a Supplemental Declaration, (ii) the
Common Interest Community is terminated; (iii) repair or replacement would be illegal under
any state or local statute or ordinance governing health or safety; (iv) sixty-seven percent (67%)
of the Lot Owners, including owners of every Lot that will not be rebuilt, vote not to rebuild; or
(v) prior to the conveyance of any Lot or Cabin Interest to a person other than Declarant, a
Mortgagee on the damaged portion of the Common Community rightfully demands all or a
substantial part of the insurance proceeds.
The cost of repair or replacement 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 to (the damaged Association Property 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 insurance proceeds
attributable to Lots that are not rebuilt must be distributed to the Owners of those Lots, or to
lienholders, as their interests may appear, and the remainder of the proceeds must be distributed
to all Owners or lienholders as their interests may appear in proportion to the Common Expense
liabilities of all the Lots and Cabin Interests.
In the event of damage to or destruction of all or a portion of the Association Property
due to fire or other adversity or disaster, the insurance proceeds, if sufficient to reconstruct or
repair the damage, shall be applied by the Master Association to such reconstruction and repair.
If the insurance proceeds with respect to such Association Property damage or destruction are
insufficient to repair and reconstruct the damage or destruction, the Master Association may levy
a Special Assessment in the aggregate amount of such deficiency, or if any Owner or group of
Owners is liable for such damage, may levy a Reimbursement Assessment against the Owner or
group of Owners responsible therefor, and shall proceed to make such repairs or reconstruction.
Such Assessment shall be due and payable as provided by resolution of the Executive Board, but
not sooner than sixty (60) days after written notice thereof. The Assessment provided for herein
shall be a debt of each Owner assessed and a lien on his Lot or Interest, and may be enforced and
collected in the same manner as any Assessment Lien provided for in this Master Declaration. If
the entire damaged Association Property is not repaired or replaced, the insurance proceeds
attributable to the damaged Association Property must be used to restore the damaged area to a
condition compatible with the remainder of the Common Interest Community. No distributions
of insurance proceeds shall be made unless made jointly payable to the Owners and first
Mortgagees of their respective Lots or Cabin Interests, if any.
141.19 Limited Liability. Neither the Master Association nor its past, present or future
officers or directors, nor any other employee, agent or committee member of the Master
Association shall be liable to any Owner or Occupant or to any other Person for actions taken or
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omissions made except for wanton and willful acts or omissions. Without limiting the generality
of the foregoing, the Master Association, the Executive Board and the Design Review
Committee shall not be liable to any Owner or Occupant or other Person for any action or for any
failure to act with respect to any matter if the action taken or failure to act was in good faith and
without malice. Acts taken upon the advice of legal counsel, certified public accountants,
registered or licensed engineers, architects or surveyors shall conclusively be deemed to be in
good faith and without malice. To the extent insurance carried by the Master Association for
such purposes shall not be adequate, the Owners severally agree to indemnify and to defend the
Master Association, the Executive Board and the Design Review Committee against claims,
damages or other liabilities resulting from such good faith action or failure to act.
ARTICLE XV
ASSESSMENTS
15.1 Assessment Obligation and Lien. Declarant, for each Lot and Cabin Interest,
shall be deemed to covenant and agree, and each Lot and Cabin Interest Owner, by acceptance of
a deed therefor (including a public trustee's or sheriff's deed), whether or not it shall be so
expressed in any such deed or other instrument of conveyance, shall be deemed to covenant and
agree, to pay to the Master Association: (1) Regular Assessments or charges, (2) Special
Assessments, (3) Reimbursement Assessments, and (4) Real Estate Transfer Assessments, such
assessments to be established and collected as hereinafter provided (collectively the
"Assessments"). No Owner shall have any right to set-off against an Assessment any claims that
the Owner may have or may claim to have against the Master Association. The Assessments,
together with interest, late charges, costs, and reasonable-attorneys' fees, shall be a continuing
lien and security interest upon the Lot or Cabin Interest against which each such Assessment is
charged. The obligation for such payments by each Lot or Cabin Interest Owner to the Master
Association is an independent covenant, with all amounts due from time to time payable in full
without notice (except as otherwise expressly provided in this Declaration) or demand, and
without set-off or deduction of any kind or nature. Each Lot and Cabin Interest Owner is liable
for Assessments made against such Owner's Lot or Cabin Interest during his period of ownership
of the Lot or Cabin Interest. Each Assessment, together with interest, late charges, costs and
reasonable attorneys' fees, shall also be the joint, several and personal obligation of each Person
who was an Owner of such Lot or Cabin Interest at the time when the Assessment became due.
Upon the transfer of title to a Lot or Cabin Interest, the transferor and the transferee shall be
jointly, severally and personally liable for all unpaid Assessments and other charges due to the
Master Association prior to the date of transfer, and the transferee shall be personally liable for
all such Assessments and charges becoming due thereafter.
15.2 Statutory Lien. The Master Association has a statutory lien pursuant to
Section 38-33.3-316 of the Act on the Lot or Cabin Interest of an Owner for all Assessments
levied against such Lot or Cabin Interest or fines imposed against such Lot's or Cabin Interest's
Owner from the time the Assessment or fine becomes due (the "Assessment Lien"). Fees,
charges, late charges, attorneys' fees, fines and interest charged by the Master Association
pursuant to the Act or this Master Declaration or any Supplemental Declaration are enforceable
as Assessments. The amount of the lien shall include all such items from the time such items
become due. If an Assessment is payable in installments, the Master Association has an
Assessment Lien for each installment from the time it becomes due, including the due date set by
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the Executive Board's acceleration of installment obligations. An Assessment Lien is
extinguished unless proceedings to enforce the lien are instituted within 6 years after the full
amount of Assessments becomes due.
15.3 Lien Superior to Homestead and Other Exemptions. An Assessment Lien
shall be superior to any homestead exemption now or hereafter provided by the laws of the State
of Colorado or any exemption now or hereafter provided by the laws of the United States. The
acceptance of a deed subject to this Master Declaration shall constitute a waiver of the
homestead and any other exemption as against said Assessment Lien.
15.4 Priority of Lien. With the exception of Assessment Liens relating to Real Estate
Transfer Assessments, an Assessment Lien is prior to all other liens and encumbrances on a Lot
or Cabin Interest except as follows:
(a) Liens and encumbrances Recorded before the recordation of this Master
Declaration;
(b) A security interest on the Lot or Cabin Interest which has priority over all
other security interests on the Lot or Cabin Interest and which was Recorded before the
date on which the Assessment sought to be enforced became delinquent. An Assessment
Lien is prior to the security interest described in the preceding sentence to the extent of an
amount equal to the Regular Assessments (based on a Budget adopted by the Master
Association pursuant to Section 15.72.8 below) which would have become due, in the
absence of any acceleration, during the six (6) months immediately preceding institution
by the Master Association or any party holding a lien senior to any part of the Master
Association lien created under this Article 152 of an action or a nonjudicial foreclosure
either to enforce or to extinguish the lien;
(c) Liens for real estate taxes and other governmental assessments or charges
against the Lot or Cabin Interest; and
(d) As may otherwise be set forth in the Act. The priority of mechanics' and
materialmen's liens is not affected by the Act.
This Article 152 does not prohibit an action or suit to recover sums for which this Article 152
creates a lien or prohibit the Master Association from taking a deed in lieu of foreclosure. Sale
or transfer of any Lot or Cabin Interest shall not affect the lien for an Assessment.
15.5 Perfection of Lien. The Recording of this Master Declaration and of each
Supplemental Declaration constitutes record notice and perfection of the statutory lien. No
further Recordation of any claim of lien for Assessments is required; however, a claim may be
Recorded at the Master Association's option, in which event costs and attorneys' fees incurred in
connection with the preparation and filing of such claim shall be assessed against the Lot or
Cabin Interest as a Reimbursement Assessment.
15.6 Regular Assessments.
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(a) A Regular Assessment shall be made annually against each Lot and Cabin
Interest, based upon an annual Budget prepared by the Executive Board, for purposes
paying (i) the annual costs of operating and administering the Master Association and all
other Common Expenses, (ii) reasonable reserves for contingencies, replacements, and
other proper purposes, (iii) the costs of services rendered or expenditures incurred by the
Master Association to or for less than all Lots or Cabin Interests, (iv) the costs of
improving or maintaining Limited Common Areas, and reasonable reserves for such
costs, which costs shall be assessed only to the Lots designated for the use of said
Limited Common Areas, (unless such costs are for the general benefit of the Common
Interest Community), and (v) such other matters as may be reasonably determined by the
Executive Board to be the subject of a Regular Assessment;
(b) Regular Assessments shall be allocated in accordance with the Allocated
Interests of each Lot and Cabin Interest in the Common Interest Community. Any
Common Expense or portion thereof benefiting fewer than all of the Lots or Cabin
Interests shall be assessed exclusively against the Lots or Cabin Interests benefited. If
Common Expense liabilities are reallocated, Common Expense Assessments and any
installment thereof not yet due shall be reallocated in accordance with the reallocated
Common Expense liabilities.
(c) Regular Assessments shall be levied on a calendar year basis, except that
the initial Regular Assessment period shall commence on the first day of the calendar
month or quarter in which the first Lot or Cabin Interest is conveyed by Declarant to a
Person other than Declarant. Regular Assessments shall be paid in installments on a
monthly, quarterly or semi-annual basis, as the Executive Board may determine from
time to time, and shall be due either on the first day of each calendar month or on the first
day of each calendar year quarter (January 1, April 1, July 1 and October 1), or on the
first day of a semi-annual period (e.g., January 1, July 1) as appropriate. Unless and until
changed to a monthly or semiannual system by the Executive Board, Regular
Assessments shall be due and payable on the first day of each calendar quarter. Any Lot
or Cabin Interest Owner acquiring a Lot or Cabin Interest between installment due dates
shall pay a pro rata share of the immediately preceding installment.
(d) The Executive Board shall fix the amount of the Regular Assessment,
using the Budget procedure described below, at least thirty (30) days before the end of
each calendar year. Written notice of the Regular Assessment shall be sent to each
Owner. Failure of the Executive Board timely to fix and levy the Regular Assessments
for any year or to send a notice thereof to any Owner shall not relieve or release any
Owner from liability for payment of Regular Assessments or any installments thereof for
that or subsequent years as soon as the Executive Board levies the Regular Assessment
and provides notice thereof. If a duly adopted Budget is amended during the calendar
year, the Executive Board shall provide written notice to the Owners of any changes
caused thereby in the remaining Regular Assessments due during that year.
(e) The Executive Board shall also mail to each Owner at least ten (10) days
prior to the due date thereof a written notice of the amount of the next quarterly (or
monthly or semi annual, as the case may be) installment of Regular Assessment that is
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due from such Owner, and the date on which such installment is due pursuant to
paragraph 152.6(d) above. Failure of the Executive Board to send timely notice to any
Owner of an installment of Regular Assessment due shall not relieve or release any
Owner from liability for payment of that installment as soon as the Executive Board in
fact provides such notice.
(f) In accordance with Section 38-33.3-314 of the Act, any surplus funds
remaining after payment of or provision for Master Association expenses and any
prepayment of or provision for reserves shall be carried forward as a credit against the
next year's budget.
15.7 Master Association Budget. Commencing in 2000, and during the last three (3)
months of each year thereafter, the Executive Board shall prepare or cause to be prepared an
operating budget (the "Budget") for the next calendar year. The Budget shall provide for the
allocation of any surplus funds remaining from any previous Budget period. The annual Budget
may provide for a Special Assessment in any calendar year, if considered necessary or
appropriate by the Executive Board. Alternatively, the Executive Board may at any time adopt a
Special Budget that provides for a Special Assessment. Within thirty (30) days after adoption of
any proposed Budget for the Master Association, the Executive Board shall mail, by ordinary
first-class mail, or otherwise deliver, a summary of the Budget to all Owners and shall set a date
for a meeting of the Owners to consider ratification of the Budget not less than fourteen (14) nor
more than sixty (60) days after the mailing or other delivery of the summary. Such meeting may,
but need not be, concurrent with the annual meeting of the Members as provided in the Bylaws.
Unless at that meeting sixty-seven percent (67%) of all allocated votes in the Master Association
reject the Budget, the Budget shall be ratified, whether or not a quorum of Owners is present. In
the event that the proposed Budget is rejected, the Budget last ratified by the Owners shall be
continued until such time as the Owners ratify a subsequent Budget proposed by the Executive
Board.
If the Executive Board considers it necessary or appropriate, a duly adopted Budget may
be amended during the calendar year by the Executive Board, provided the same notice and
ratification procedure is followed for the Amended Budget as is required for the annual Budget.
15.8 Reserves Fund Account. The Executive Board shall establish a separate bank
account (the “Reserves Fund Account”) for Master Association funds designated by the
Executive Board as reserves for the future periodic maintenance, repair or replacement of the
major components of the Common Areas. Declarant makes no representation or warranty that
the amount of in the Reserves Fund Account from time to time will fully or adequately fund, the
reserves required for the future periodic maintenance, repair or replacement of the items for the
reserves are maintained.. Neither Declarant nor any member, director, officer, employee or
agent of Declarant nor any person serving as a director or officer of the Master Association shall
be liable to the Master Association, any Member or any other Person as a result of such reserves
not being funded in excess of the amount of reserves held in the Reserves Fund Account.
15.9 Special Assessments. In addition to the other Assessments authorized in this
Article 152, the Executive Board may levy, in any assessment year, a Special Assessment
applicable to that year only for the purpose of defraying, in whole or in part, the cost of any
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construction, reconstruction, repair, maintenance or replacement of capital improvements
(including related fixtures and personal property and including without limitation irrigation
systems), to or upon or serving the Common Interest Community, or for excess reconstruction
costs or other extraordinary expenses, or to acquire Association Property, or for funding any
operating deficit of the Master Association. Special Assessments shall be allocated in the same
manner as Regular Assessments, that is, in accordance with the Allocated Interests of each Lot
and Cabin Interest in the Common Interest Community, and shall be due and payable to the
Master Association on the due date fixed by the Executive Board in the notice given to the
Owners of such Special Assessment, which due date shall be no earlier than thirty (30) days after
the giving of such notice. Any Special Assessment for an Improvement or other expenditure
which will benefit fewer than all of the Lots or Cabin Interests shall only be levied against the
Lots or Cabin Interests benefited; provided, that expenditures in connection with Association
Property (excepting Limited Common Areas) shall be deemed for the general benefit of all Lots
and Cabin Interests, wherever located. If fewer than all of the Interests will be subject to the
Special Assessment, then such Special be allocated equally amongst those Lots and Cabin
Interests.
15.10 Reimbursement Assessments. In addition to the other Assessments authorized
in this Article 152, the Executive Board may levy against any Owner or Owners, at any time and
from time to time, a Reimbursement Assessment for purposes of reimbursing the Master
Association for all costs and expenses incurred by it in enforcing any provision of or in
remedying any violation of this Master Declaration, or of any Supplemental Declaration, the
Articles, Bylaws, Master Rules and Regulations or Design Guidelines, or any approvals granted
by the Design Review Committee, by such Owner or Owners, their Occupant(s), or their agents,
employees or contractors. Reimbursement Assessments may also be made by the Executive
Board for any other purposes for which this Master Declaration provides for the levying of a
Reimbursement Assessment. Finally, and in addition to the foregoing, a Reimbursement
Assessment may also be levied in the form of a reasonable fine against an Owner for a violation
of this Master Declaration, a Supplemental Declaration, the Articles, Bylaws, or the Master
Rules and Regulations, but only after the Owner(s) to be so fined have been provided with
Notice and Hearing. Reimbursement Assessments shall be due and payable to the Master
Association on the due date fixed by the Executive Board in the notice given to the Owner(s) of
such Reimbursement Assessment, which date shall be no earlier than thirty (30) days after the
giving of such notice.
15.11 Effect of Nonpayment of Assessments; Remedies of the Master Association.
Any Assessment or portion or installment thereof which is not paid when due (or for which a bad
check is issued) shall be deemed delinquent and shall bear interest from and after the due date at
the rate of interest set by the Executive Board from time to time, which shall not be less than
twelve percent (12%) nor more than twenty-one percent (21%) per year, and the Executive
Board may also assess a bad check charge in the amount of 10 percent (10%) of the bad check or
$50.00, whichever is greater. The interest rate on delinquent Real Estate Transfer Assessments is
established in Section 12.514(e) abovebelow. The Executive Board may also elect to accelerate
the installment obligations of any Regular Assessment for which an installment is delinquent.
The Executive Board may also suspend the delinquent Owner's use of Association Property and
Master Association services or benefits. The delinquent Owner shall also be liable for all costs,
including attorneys' fees, which may be incurred by the Master Association in collecting a
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delinquent Assessment, which collection costs shall be added to the delinquent Assessment. The
Executive Board may but shall not be required to record a Notice of Delinquent Assessment or
charge against any Lot or Cabin Interest as to which an Assessment or charge is delinquent. The
Notice shall be executed by an officer of the Executive Board, and shall set forth the amount of
the unpaid Assessment or charge, the name of the delinquent Owner and a description of the Lot
or Cabin Interest.
The Assessment Lien may be foreclosed by the Master Association in the same manner
as a mortgage on real property. The Master Association shall be entitled to purchase the Lot or
Cabin Interest at foreclosure. The Master Association may also bring an action at law against the
Owner personally obligated to pay the delinquent Assessment and/or foreclose the lien against
said Owner's Lot or Cabin Interest in the discretion of the Master Association. No Owner may
exempt himself or otherwise avoid liability for the Assessments provided for herein by waiver of
the use or enjoyment of any of the Association Property or by abandonment of the Lot or Cabin
Interest against which the Assessments are made.
In any action by the Master Association to collect Assessments or to foreclose a lien for
unpaid Assessments, the court may appoint a receiver to collect all sums alleged to be due from
the Lot or Cabin Interest 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 Master Association during the
pending of the action to the extent of the Master Association's Regular Assessments.
15.12 Statement of Unpsaid Assessments. The Master Association shall furnish to an
Owner or such Owner's designee or to a holder of a security interest or its designee upon written
request, delivered personally or by facsimile transmittal or by certified mail, first class postage
prepaid, return receipt requested, to the Master Association, a written statement setting forth the
amount of unpaid Assessments currently levied against such Owner's Lot or Cabin Interest,
whether delinquent or not. The statement shall be furnished within fourteen (14) days after
receipt of the request and is binding on the Master Association, the Executive Board, and every
Owner. If no statement is furnished either delivered personally or by facsimile transmission or
by certified mail, first-class postage prepaid, return receipt requested, to the inquiring party, then
the Master Association shall have no right to assert a lien upon the Lot or Cabin Interest for
unpaid Assessments which were due as of the date of the request.
15.13 Assessments for Tort Liability. In the event of any tort liability against the
Master Association, which is not covered completely by insurance, each Owner shall contribute
for the payment of such liability as a Special Assessment. The Master Association may,
however, require a larger contribution from fewer than all Owners under any legal or equitable
principles regarding liability for negligent or willful acts or omissions.
15.14 Working Capital Fund. In addition to the various Assessments provided for, at
the time of closing of each conveyance of a Lot or Cabin Interest in the Common Interest
Community, including initial conveyances to the Lot or Cabin Interest Owners, and all
subsequent resales, the Lot or Cabin Interest purchaser shall be obligated to pay to the Master
Association a non-refundable contribution to the Master Association's working capital fund in
the amount of two (2) times the most recently adopted regular monthly assessment. Said
working capital fund may be used by the Master Association from time to time for any Master
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Association purpose deemed appropriate by the Executive Board, and need not be segregated or
accumulated. Such payment shall not be deemed to be a prepayment of any Assessment, and
shall not relieve the Owner from the obligation to pay all Assessments as and when due. At the
time of closing of a reconveyance of an Owner's Lot or Cabin Interest to a new Owner, the
selling Owner shall forfeit any right to the working capital fund and the new Owner shall pay an
additional non-refundable contribution to the working capital fund in the amount calculated as
above set forth.
Notwithstanding the foregoing, any builder acquiring an undeveloped Lot from Declarant
for the purpose of constructing a residential dwelling thereon and selling the same in the ordinary
course of the builder's business, and not for the builder's own residence, shall not be required to
pay the above-described contribution to the working capital fund until the first to occur of the
following: (a) the new residence on the Lot is occupied by a tenant or otherwise; or (b) the Lot is
sold to a third party, in which case the purchaser shall make the payment to the working capital
fund.
The following conveyances shall be exempt from the working capital fund contribution
obligation: Gift transfers and other transfers for no consideration, transfers for estate planning
purposes or public purposes, transfers by court order (including foreclosure sales) or by will or
intestacy, and transfers to a successor or assign of Declarant or an affiliate of Declarant.
If a working capital fund contribution is not timely paid to the Master Association as
above required, the delinquent contribution shall bear interest at the rate of twenty percent (20%)
from the date of the conveyance until paid in full, shall constitute the personal, joint and several
obligation and liability of the transferee(s), and the Master Association shall have a lien and
security interest on the title to the transferee's Lot or Cabin Interest in the amount of the
delinquent contribution, accrued interest thereon, and costs and attorneys' fees incurred in
collecting the same, which may foreclosed by the Master Association in the same manner as a
mortgage on real property.
ARTICLE XVI
EMINENT DOMAIN
16.1 Definition of Taking. The term "taking", as used in this Article 163, shall mean
condemnation by eminent domain or sale under threat of condemnation.
16.2 Representation in Condemnation Proceedings of Association Property. In the
event of a threatened taking of all or any portion of the Association Property, the Owners hereby
appoint the Master Association through such persons as the Executive Board may designate to
represent the Master Association and all of the Owners in connection therewith. The Master
Association shall act in its sole discretion with respect to any awards being made in connection
with the taking and shall be entitled to make a voluntary sale to the condemnor in lieu of
engaging in a condemnation action. Service of process on the Master Association shall
constitute sufficient notice to all Owners, and service of process on each individual Owner shall
not be necessary.
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16.3 Award for Association Property. Any awards received by the Master
Association on account of the taking of Association Property shall be paid to the Master
Association. The Master Association may, in its sole discretion, retain any award in the general
funds of the Master Association or distribute all or any portion thereof to the Owners as their
interests may appear. The rights of an Owner and the Mortgagee of a Lot or Cabin Interest as to
any such distribution shall be governed by the provisions of the Mortgage encumbering the Lot
or Cabin Interest.
16.4 Taking of Lots. If a Lot is acquired by eminent domain or part of a Lot is
acquired by eminent domain leaving the Owner with a remnant which may not practically or
lawfully be used for any purpose permitted by this Master Declaration, the award must include
compensation to the Owner for that Lot and its Allocated Interests whether or not any
Association Property was acquired. Upon acquisition, unless the decree otherwise provides, that
Lot's Allocated Interests are automatically reallocated to the remaining Lots (as appropriate) in
proportion to the respective Allocated Interests of those Lots before the taking. Any remnant of
a Lot remaining after part of a Lot is taken is thereafter Association Property. Otherwise, if part
of a Lot is acquired by eminent domain, the award must compensate the Owner for the reduction
in value of the Lot and its interest in the Association Property whether or not any Association
Property was acquired. Upon acquisition, unless the, decree otherwise provides:
(a) That Lot's Allocated Interests are reduced in proportion to the reduction in
the size of the Lot; and
(b) The portion of Allocated Interests divested from the partially acquired Lot
is automatically reallocated to that Lot and to the remaining Lots (as appropriate) in
proportion to the respective interests of those Lots before the taking, with the partially
acquired Lot participating in the reallocation on the basis of its reduced Allocated
Interests.
16.5 Miscellaneous. The court decree shall be recorded in Garfield County. The
reallocations of Allocated Interests pursuant to this Article shall be confirmed by an amendment
to the Master Declaration prepared, executed, and recorded by the Master Association.
ARTICLE XVII
GENERAL PROVISIONS
17.1 Duration of Master Declaration. The term of this Master Declaration shall be
perpetual.
17.2 Termination of Common Interest Community. The Common Interest
Community may be terminated only by the agreement of (i) Owners to which at least eighty
percent (80%) of the Master Association are allocated, and (ii) the holders of all First Mortgages
on Lots and Cabin Interests. In the event of such termination, the provisions of Section 38-33.3-
218 of the Act shall apply.
17.3 Amendment of Master Declaration and Plat. This Master Declaration and the
Plat may be amended pursuant to Section 38-33.3-217 of the Act. Under the Act, the Master
Declaration may be amended by Declarant in certain defined circumstances, including without
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limitation (a) when the Declarant is exercising reserved rights under Article 6 hereof, (b) for
purposes of correcting clerical, typographical or technical errors, or (c) to comply with the
requirements, standards, or guidelines of recognized secondary mortgage markets, the
Department of Housing and Urban Development, the Federal Housing Administration, the
Veterans Administration, the Federal Home Loan Mortgage Corporation, the Government
National Mortgage Association, or the Federal National Mortgage Association. The Act also
provides that the Master Declaration may be amended by the Master Association in certain
defined circumstances. Otherwise, and subject always to (i) any provisions of this Master
Declaration requiring the consent of Declarant, and (ii) the provisions above allowing Owners to
amend this Master Declaration (with the consent of the Master Association) in certain
circumstances (lot line adjustments), this Master Declaration and any Supplemental Declarations
(including the Plat and any Supplement Plats) may be amended only by the vote or agreement of
Owners to which more than fifty percent (50%) of the votes in the Master Association are
allocated. No amendment shall be effective to change, limit, impair, reduce or eliminate any
right of Declarant as provided in this Master Declaration or in any Supplemental Declaration
unless such amendment is approved in writing by Declarant.
Furthermore, Section 38-33.3-217(4) of the Act provides that except to the extent
expressly permitted or required by other provisions of the Act (e.g., permitted Declarant or
Master Association amendments), no amendment may (i) create or increase special Declarant
rights, (ii) increase the number of Lots, or (iii) change the boundaries of any Lot or the Allocated
Interests of a Lot or Cabin Interest in the absence of a vote or agreement of Owners to which at
least sixty-seven percent (67%) of the votes in the Master Association are allocated, including
sixty-seven percent (67%) of the votes allocated to Lots and Cabin Interests not owned by
Declarant.
Further, Section 38-33.3-217(4.5) of the Act provides that except to the extent expressly
permitted or required by other provisions of the Act, no amendment may change the uses to
which any Lot is restricted in the absence of a vote or agreement of Owners to which at least
sixty-seven percent (67%) of the votes in the Master Association are allocated.
No consent of any mortgage or trust deed holder shall be required to accomplish any such
amendments.
No amendment shall be inconsistent with the P.U.D. Plan. In the event of any such
inconsistency, the terms and conditions of the P.U.D. Plan shall control.
With the exception of amendments accomplished by Supplemental Declaration (when
lands are annexed to the Common Interest Community), an amendment to this Master
Declaration shall be in the form of a "First (or Second, etc.) Amendment to Master Declaration
and Plat of Spring Valley Ranch P.U.D." With the exception of Declarant amendments,
amendments to this Master Declaration shall be duly executed by the President and Secretary of
the Master Association and Recorded in the Office of the Clerk and Recorder of Garfield
County. All amendments to this Master Declaration shall be indexed in the Grantee's index in
the names of the Common Interest Community and the Master Association, and in the Grantor's
index in the name of each Person executing the amendment.
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17.4 Compliance; Enforcement. Every Owner and Occupant in the Common Interest
Community and every other Person who may be an authorized user of Association Property,
shall fully and faithfully observe, abide by, comply with and perform all of the covenants,
conditions and restrictions set forth in this Master Declaration, any Supplemental Declaration,
the Articles, Bylaws, Master Rules and Regulations, the P.U.D. Plan, the Design Guidelines and
all approvals granted by the Design Review Committee, as the same or any of them may be
amended from time to time. In addition to any other rights or remedies that may be provided to
any Person under the terms and provisions of this Master Declaration or of any Supplemental
Declaration, Declarant (for so long as it holds any of the rights set forth in Articles 6 and 8
hereof), the Master Association through its Executive Board, the Design Review Committee as
to matters involving (i) Improvements within the Common Interest Community, (ii) the Design
Guidelines, or (iii) any other matters arising under Article 6 hereof or with respect to which the
Design Review Committee is otherwise expressly given enforcement authority under this Master
Declaration or any Supplemental Declaration, and every Owner (except an Owner that is
delinquent in the payment of Assessments hereunder) shall have the right, acting alone or
together with others having such right, to enforce, by any proceeding at law or in equity, any or
all of the covenants, conditions, restrictions, assessments, charges, liens, servitudes, easements
and other provisions now or hereafter imposed by this Master Declaration, any Supplemental
Declaration, the Articles, Bylaws, Master Rules and Regulations, the P.U.D. Plan, the Design
Guidelines, and approvals granted by the Design Review Committee.
Such enforcement rights shall include without limitation the right to bring an injunctive
action for any form of injunctive relief available under Colorado law (including specific
performance), or an action for damages, or both. Injunctive relief may include, without
limitation, orders to stop work, orders to remove Improvements constructed in violation hereof,
orders to compel performance, and any other orders appropriate under the circumstances.
The Executive Board shall have the further right (a) to levy and collect, after Notice and
Hearing, reasonable fines for the violation of any of the foregoing matters, (b) to levy and collect
a Reimbursement Assessment against any Owner, (c) to enter upon any Lot within the Common
Interest Community, after giving the Owner or Occupant at least five (5) days' written notice of
the nature of the violation, (unless an emergency exists, in which case without notice), without
liability to the Owner or Occupant thereof, to enforce or cause compliance with such matters, at
the cost and expense of the Owner or Occupant in violation, and/or (d) where the violation has
continued for more than ninety (90) days after the Executive Board has given the Owner or
Occupant written notice of the violation, the Executive Board may temporarily cut off any or all
Master Association services or benefits to the subject Owner or Occupant and his Lot or Cabin
Interest , including the right to use Association Property (except access roads), until the violation
is cured.
In any action brought under this Section, the prevailing party shall be entitled to an award
of its reasonable attorneys' fees and costs incurred in connection therewith. Failure by any party
entitled to do so to exercise in a particular instance any of the rights available to it under this
Section shall in no event be deemed a waiver of the right to do so in any other instance.
Provided always, that no Owner shall have the right to bring an enforcement action
against another Owner or Occupant for a breach by that Owner or Occupant of any of such
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matters, or against Declarant, the Master Association or the Design Review Committee for a
breach by Declarant, the Master Association or the Design Review Committee of any of such
matters or for a. failure by the Declarant, Master Association or the Design Review Committee
to enforce compliance with such matters by others, until the aggrieved Owner has given the
offending Owner or Occupant, or Declarant, the Master Association and/or the Design Review
Committee at least thirty (30) days prior written notice of the aggrieved Owner's complaint and
the opportunity to resolve the problem during that thirty (30) day period.
And further provided, that notwithstanding any law to the contrary, no action shall be
commenced or maintained to enforce the terms of any building restriction contained in the
provisions of this Master Declaration or any Supplemental Declaration, the Bylaws, the Articles
of Incorporation, the P.U.D. Plan, the Design Guidelines, or the Master Rules and Regulations,
or to compel the removal of any building or Improvement because of the violation of the terms
of any such building restriction, unless the action is commenced within one year from the date
from which the person commencing the action knew or in the exercise of reasonable diligence
should have known of the violation for which the action is sought to be brought or maintained.
17.5 Rights of First Mortgagees. Upon the filing of a written request therefor with
the Master Association, the holder of a First Mortgage on any Lot or Cabin Interest in the
Common Interest Community shall be entitled to:
(a) Written notice from the Master Association that the Owner of the subject
Lot or Cabin Interest is delinquent in the payment of Assessments thereon;
(b) Inspect the books and records of the Master Association during normal
business hours;
(c) Receive copies of annual Master Association financial statements;
(d) Receive written notice of meetings of the Master Association where
matters will be considered that, if approved, will require the consent of First Mortgagees
or some of them;
(e) Receive written notice of condemnation proceedings affecting any
Association Property; and
(f) Receive written notice of the lapse of any insurance that the Master
Association is required to maintain under this Master Declaration.
In addition, any First Mortgagee shall be entitled to pay any taxes or other charges which
are in default and which may or have become a lien against Association Property and may pay
any overdue premiums on hazard or general liability insurance policies covering Association
Property, and shall be entitled to immediate reimbursement therefor from the Master
Association, unless the Master Association is contesting any unpaid taxes or other charges and
has set aside sufficient funds to pay the contested amounts if necessary.
17.6 Club Property and Facilities. In no event and for no purpose shall the Club
Property or any golf course improvements or other improvements or facilities constructed
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thereon or related thereto, be deemed to be a part of the Common Interest Community, to
constitute Association Property, or to be burdened by this Master Declaration or any
Supplemental Declaration. This Master Declaration does not grant or create any rights or
privileges to or for the benefit of the Owners or Occupants in the Common Interest Community
to use or enjoy the Club Property or any part thereof or improvements or facilities thereon for
any purpose, except for such limited ingress and egress rights as may be expressly provided in
the License Agreement. Without limiting the generality of the foregoing, no Lot or Cabin
Interest shall have any right (i) to have golf course or other improvements or facilities
constructed on the Club Property or some of them, or to have them constructed in any particular
location on the Club Property, (ii) to have or preserve a visual or sight easement over and across
any portion of the Club Property, and/or (iii) to have access to or across the Club Property in any
particular location or alignment.
The Club Property is private property owned and operated by the Declarant or its
successors or assigns and administered according to membership policies and rules and
regulations adopted by the Club Property Owner from time to time. The Club Property may
include, without limitation, golf courses, practice facilities, clubhouses, tennis courts, swimming
pools, and other recreational, social, maintenance and administrative improvements and
facilities. These facilities shall be developed and provided at the discretion of the Club Property
Owner. The Club Property Owner has the exclusive right to determine from time to time, in its
sole discretion and without notice or approval of any change, how and by whom these facilities
shall be used, if at all: By way of example, but not limitation, the Club Property Owner shall
have the right to approve users and determine eligibility for use, to reserve use rights, to
terminate any or all use rights, to change, eliminate or cease operation of any or all of the
facilities, to transfer any or all of the Club Property or the operation thereof to anyone (including
without limitation a member-owned or equity club) and on any terms, to limit the availability of
use privileges, and to require the payment of a purchase price, membership contribution,
initiation fee, membership deposit, dues, use charges and other charges for use privileges.
Ownership of a Lot or Cabin Interest or membership in the Master Association does not give any
vested right. or easement, prescriptive or otherwise, to use the Club Property, and does not grant
any ownership or membership interest therein.
17.7 Club Property Hazards, Risks and Liabilities; Disclosure, Assumption of
Risk, Release and Indemnification. The Club Property may be used as private or public golf
courses and related improvements, facilities and uses. By acceptance of a deed to a Lot or Cabin
Interest, each Owner acknowledges (i) that the use and operation of the Club Property as golf
courses and related facilities will involve certain risks to the Common Interest Community,
including but not limited to damage to property and improvements and personal injury and death
caused by errant golf balls that may be hit into the Common Interest Community, and (ii) that
while the Common Interest Community has been designed to minimize these risks to the extent
reasonably possible, it would be impossible to render the Common Interest Community free of
all golf course-related risks. Certain of the more common hazards associated with the operation
of a golf course are more particularly described in subsections (a) through (g) below (collectively
the "Golf Course Hazards"):
(a) Errant Golf Balls. Owners of Lots or Cabin Interests, particularly Lots or
Cabin Interests abutting the Club Property, acknowledge the inherent risks of errant golf
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balls (including without limitation property damage, personal injury and death), and
assume and accept such risks, including the associated trespasses. Owners acknowledge
that golfers have the right to enter upon Lots in the Common Interest Community to
retrieve golf balls that are visible from the fairway, and each Owner agrees to release and
waive any claims said Owner may have against the Declarant or the Club Property Owner
as a result of such entry and retrieval and any trespass associated therewith.
(b) View Impairment/Impairment of Privacy. Owners of Lots or Cabin
Interests, including Owners of Lots or Cabin Interests abutting the Club Property, have
no guarantee that their views over and across the Club Property or any part thereof will
be forever preserved without impairment, that the views from the Club Property will not
be impaired, or that their privacy will not be impaired. The Club Property Owner has no
obligation to the Owners to prune or not prune trees or other landscaping and such Club
Property Owner may change, add to or reconfigure the golf course(s) and related or
unrelated facilities and improvements on the Club Property, including without limitation
structural improvements, fences, trees, landscaping, practice facilities, tees, bunkers,
fairways, greens, clubhouses, tennis courts, swimming pools, and other recreational,
social, maintenance and administrative improvements and facilities, in any manner or
location and at any time deemed appropriate by said Club Property Owner, without
liability or obligation to the Owners.
(c) Pesticides and Fertilizers. Pesticides, fertilizers and other chemicals may
be utilized in connection with the operation and maintenance of the Club Property and
related landscaping and the Owners acknowledge, accept and assume the risks associated
with the use of pesticides, fertilizers and other chemicals.
(d) Overspray. Owners of Lots or Cabin Interests, particularly Lots or Cabin
Interests abutting the Club Property, may experience "overspray" from the Club Property
irrigation system, and such Owners acknowledge, accept and assume the risks associated
with such "overspray".
(e) Noise and Light; Tournaments. Owners of Lots or Cabin Interests,
particularly Lots or Cabin Interests in proximity to the golf course clubhouse(s), may be
exposed to lights, noises or activities resulting from the use of the golf course(s) for
tournaments, from the use of the clubhouse(s) for dining and entertainment, and from use
of the parking lot(s), and such Owners acknowledge, accept and assume the risks
associated with such uses.
(f) Maintenance. The Club Property and related improvements and facilities
will require daily maintenance, including mowing, irrigation and grooming, during early
morning, evening and night hours, including without limitation the use of tractors,
mowers, blowers, pumps, compressors and utility vehicles. Owners of Lots or Cabin
Interests, particularly Lots or Cabin Interests in proximity to the Club Property, will be
exposed to the noise and other effects of such maintenance, and such Owners
acknowledge, accept and assume the risks associated with such maintenance activities.
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IN CONSIDERATION FOR THE ABOVE-ACKNOWLEDGED ENHANCEMENT
IN VALUE, AND WITH FULL AWARF THESE AND OTHER RISKS, BY ACCEPTING
THE DEED TO A LOT OR CABIN INTEREST EACH LOT OR CABIN INTEREST
OWNER FOR HIMSELF AND HIS OCCUPANTS, INVITEES, LICENSEES,
SUCCESSORS AND ASSIGNS (COLLECTIVELY THE "OWNER'S RELATED
PARTIES") HEREBY (I) ACKNOWLEDGES, ACCEPTS AND ASSUMES THE RISKS
ASSOCIATED WITH SAID GOLF COURSE HAZARDS AND OF ANY DAMAGE TO
PROPERTY OR TO THE VALUE OF PROPERTY, DAMAGE TO IMPROVEMENTS,
PERSONAL INJURY OR DEATH, OR THE CREATION OR MAINTENANCE OF A
TRESPASS OR NUISANCE, CAUSED BY OR ARISING IN CONNECTION WITH ANY
OF SAID GOLF COURSE HAZARDS OR OTHER RISKS, HAZARDS AND DANGERS
ASSOCIATED WITH THE OPERATION OF PRIVATE OR PUBLIC GOLF COURSES
OR ARISING FROM THE DESIGN OF SUCH GOLF COURSES (COLLECTIVELY
THE "ASSUMED RISKS"), AND (II) RELEASES, WAIVES, DISCHARGES,
COVENANTS NOT TO SUE, INDEMNIFIES AND AGREES TO DEFEND AND HOLD
HARMLESS THE DECLARANT, THE MASTER ASSOCIATION, AND THE CLUB
PROPERTY OWNER, AND EACH OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, PARTNERS, SHAREHOLDERS, MEMBERS, AFFILIATES,
EMPLOYEES, CONTRACTORS, CONSULTANTS, AGENTS, SUCCESSORS AND
ASSIGNS (COLLECTIVELY, THE "RELEASED PARTIES") EACH OF THEM, FROM
ANY AND ALL LIABILITY TO THE LOT OR CABIN INTEREST OWNER OR
OWNER'S RELATED PARTIES FOR ANY DAMAGES, LOSSES, COSTS
(INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES), CLAIMS, DEMANDS,
SUITS, JUDGMENTS, ORDINARY NEGLIGENCE, OR OTHER OBLIGATIONS
ARISING OUT OF OR CONNECTED IN ANY WAY WITH ANY OF THE ASSUMED
RISKS. THIS RELEASE IS INTENDED TO BE A COMPREHENSIVE RELEASE OF
LIABILITY BUT IS NOT INTENDED TO ASSERT DEFENSES WHICH ARE
PROHIBITED BY LAW. NOTWITHSTANDING THE FOREGOING, HOWEVER,
THIS SECTION SHALL NOT LIMIT THE LIABILITY OF INDIVIDUAL GOLFERS
USING THE CLUB PROPERTY.
In addition to the foregoing, the Declaration of Easements and Rights also establishes
certain easements and restrictions upon portions of the Common Interest Community for the
benefit of the Club Property Owner and the Club Property, and each Owner acknowledges
having read that document and being familiar with the terms thereof.
The acknowledgments, assumptions of risk and agreements contained in this Section
shall be deemed to run with the title to each Lot and Cabin Interest within the Common Interest
Community.
17.8 Notice. Each Owner, and each First Mortgagee if it so elects, shall register its
mailing address from time to time with the Master Association. Except as otherwise specifically
provided in this Master Declaration, any notice permitted or required to be given hereunder shall
be in writing and may be delivered either personally, or by facsimile transmission, or by mail.
Notices delivered personally or sent by facsimile transmission shall be deemed given on the date
so delivered or sent. If delivery is made by mail, it shall be deemed to have been delivered two
(2) business days after a copy of the same has been posted in the first-class U.S. Mail with
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adequate postage affixed, addressed to the receiving party at the address last registered by such
party with the Master Association, or in the case of an Owner that has not provided such an
address, to the Lot of that Owner. Notices to the Master Association shall be sent to such address
as it may from time to time designate in writing to each Owner.
17.9 No Dedication to Public Use. Except as otherwise expressly provided herein or
therein to the contrary, nothing contained in this Master Declaration or in any Supplemental
Declaration shall be deemed to be or to constitute a dedication of all or any part of the Common
Interest Community to the public or to any public use.
17.10 Interpretation of Master Declaration and Supplemental Declarations,
Conflicts with Act. The provisions of this Master Declaration and of all Supplemental
Declarations shall be liberally construed to effectuate their purpose of creating a common and
general plan for the development, improvement, enhancement, protection and enjoyment of the
Common Interest Community, and to the extent possible, shall be construed so as to be
consistent with the Act. In the event that any of the terms and conditions of this Master
Declaration or of any Supplemental Declaration are determined to be inconsistent with the Act,
the Act shall control. Notwithstanding anything to the contrary in this Master Declaration or in
any Supplemental Declaration, no rights or powers reserved to Declarant hereunder or in any
Supplemental Declaration shall exceed the time limitations upon or the permissible extent of
such rights or powers under the Act, and in the event any of such reserved rights or powers are
determined to be inconsistent with the Act, the related provisions shall not be invalidated but
shall be modified to the extent required to comply with the Act.
17.11 Conflict With Plats. In the event of any conflict or inconsistency between the
provisions of this Master Declaration or any Supplemental Declaration and the Plat, or any
Supplemental Plat, including the Plat notes thereon, the provisions of said Plat or Supplemental
Plat or Plat notes, as the case may be, shall govern and control and this Master Declaration or
any Supplemental Declaration shall automatically be amended, but only to the extent necessary
to conform the conflicting provisions hereof with the provisions of said Plat, Supplemental Plat
or Plat notes.
17.12 No Express or Implied Covenants on Lands Not Annexed. Nothing in this
Master Declaration or in any Supplemental Declaration shall create, or be deemed to create, any
express or implied covenants upon or with respect to any real property or interest therein not
actually annexed to the Common Interest Community in the manner provided herein, including
without limitation the properties described in attached Exhibits B and C.
17.13 Violations Constitute a Nuisance. Any violation of any provision, covenant,
condition, restriction or equitable servitude contained, in this Master Declaration, or in any
Supplemental Declaration, whether by act or omission, is hereby declared to be a nuisance and
may be enjoined or abated, whether or not the relief sought is for negative or affirmative action,
by any Person entitled to enforce the provisions of this Master Declaration. This provision does
not limit the remedies that may be available under this Master Declaration or at law or in equity.
Failure of the Master Association to bring enforcement action to correct any violation of this
Master Declaration or any Supplemental Declaration shall not constitute a waiver of or estop the
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Master Association from bringing a future or subsequent enforcement action to correct such
violation or any other similar violation.
17.14 Declarant's Disclaimer of Representations and Warranties. No
representations or warranties of any kind, express or implied, have been given or made or shall
be deemed to have been given or made by Declarant or its agents or employees in connection
with the Common Interest Community, the Club Property, or any portion thereof or any
Improvements thereon, its or their physical condition, zoning, compliance with applicable laws,
fitness for intended use or operation, adequacy or availability of utilities, or in connection with
the subdivision, sale, improvement, operation, maintenance, cost of maintenance, taxes or
regulation thereof, unless and except as shall be specifically set forth in writing herein, in any
registration statement or purchase and sale agreement executed by Declarant, or in any closing
document related thereto. Furthermore, no such representations or warranties have been given or
made or shall be deemed to have been given or made by Declarant or its agents or employees
that the plans presently envisioned for the complete development of the Common Interest
Community, the Association Property, and/or the Club Property, can or will be carried out, or
that any land now owned or hereafter acquired by Declarant is or will be subjected to this Master
Declaration or that any such land (whether or not it is subjected to this Master Declaration) is or
will be committed to or developed for a particular (or any) use, or that if such land is once used
for a particular use, such use will continue in effect, unless and except as shall be specifically set
forth in writing herein, in any registration statement or purchase and sale agreement executed by
Declarant, or in any closing document related thereto.
17.15 Captions. Captions given to various Articles and Sections herein are for
convenience only and are not intended to modify or affect the meaning of any of the substantive
provisions hereof and shall not be considered in interpreting any of the provisions hereof.
17.16 Singular Includes Plural. Unless the context requires a contrary construction, as
employed in this Master Declaration the singular shall include the plural and the plural the
singular; and the masculine, feminine or neuter shall each include the masculine, feminine and
neuter.
17.17 Remedies Cumulative. Each remedy provided under this Master Declaration
and any Supplemental Declaration is cumulative and not exclusive.
17.18 Costs and Attorneys' Fees. In any action or proceeding involving the
interpretation or enforcement of any provision of this Master Declaration or of any Supplemental
Declaration, the prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs incurred in connection therewith.
17.19 Governing Law; Jurisdiction. The laws of the State of Colorado shall govern
the interpretation, validity, performance, and enforcement of this Master Declaration and any
Supplemental Declaration. Any legal action brought in connection with this Master Declaration
or any Supplemental Declaration shall be commenced in the District Court for Garfield County,
Colorado, and by acceptance of a deed to a Lot or Cabin Interest each Lot and Cabin Interest
Owner voluntarily submits to the jurisdiction of such court.
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17.20 Severability. Any determination by any court of competent jurisdiction that any
provision of this Master Declaration or of any Supplemental Declaration is invalid or
unenforceable shall not affect the validity or enforceability of any of the other provisions hereof.
Where any provision of this Master Declaration or of any Supplemental Declaration is alleged to
be or declared by a court of competent jurisdiction to be unconscionable, Declarant shall have
the right by amendment to this Master Declaration or Supplemental Declaration to replace such
provision with a new provision, as similar thereto as practicable but which in Declarant's
reasonable opinion would be considered not to be unconscionable.
17.21 Disclaimer Regarding Safety. DECLARANT AND THE MASTER
ASSOCIATION HEREBY DISCLAIM ANY OBLIGATION REGARDING THE SECURITY
OF ANY PERSONS OR PROPERTY WITHIN THE COMMON INTEREST COMMUNITY.
ANY OWNER OF PROPERTY WITHIN THE COMMON INTEREST COMMUNITY
ACKNOWLEDGES THAT DECLARANT AND THE MASTER ASSOCIATION ARE ONLY
OBLIGATED TO DO THOSE ACTS SPECIFICALLY ENUMERATED HEREIN, OR IN THE
ARTICLES OF INCORPORATION AND BYLAWS, AND ARE NOT OBLIGATED TO DO
ANY OTHER ACTS WITH RESPECT TO THE SAFETY OR PROTECTION OF PERSONS
OR PROPERTY WITHIN THE COMMON INTEREST COMMUNITY.
ARTICLE XVIII
DISPUTE RESOLUTION
18.1 Alternative Method for Resolving Disputes. Declarant, the Master Association,
its officers and directors and all Owners (each of the foregoing entities being referred to as a
"Party"), agree to encourage the amicable resolution of disputes involving the Common Interest
Community and all of its improvements and agrees to submit all Claims to the procedures set
forth in this Article XVIII.
18.2 Claims. Except as specifically excluded in Section 185.3 below, and except as
provided by applicable law, all claims, disputes and other controversies between the Master
Association and any Owner, or between two or more Owners, or between any Owner and
Declarant or between the Master Association and Declarant, including, without limitation, the
following:
(a) any purchase agreement between Declarant and any Owner (except as may
be expressly provided otherwise therein);
(b) purchase of a Lot or Cabin Interest from Declarant;
(c) interpretation, application or enforcement of Governing Documents
(except as provided in Section 185.3 below);
(d) the soils of any property that lies within the Common Interest Community,
including the Lots and Cabin Interests and Common Areas;
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(e) land development, design, construction, and/or alteration of the
improvements within the Common Interest Community, including the Lot or Cabin
Interests and Common Areas and/or any alleged defect therein;
(f) any rights, obligations and duties of any Party under the Governing
Documents;
(g) any personal injury or property damage that any Owner alleges to have
sustained on the Common Interest Community, including the Lot or Cabin Interests and
Common Areas;
(h) any limited warranty issued in connection with the sale of a Lot or Cabin
Interest by Declarant; and
(i) any breach of any of the foregoing.
18.3 Exemptions. The following shall not be Claims and shall not be subject to the
provisions of this Policy:
(a) the levying and collection of Assessments;
(b) any action by the Master Association enforce any provision of the this
Declaration or any of the other documents governing the Common Interest Community or
where time is of the essence in order to comply with applicable law or contractual
provision of a contract or lease or in the case of emergency; and
(c) any dispute that involves or that includes, through joinder, interpleader or
otherwise, any third parties, who are not Parties.
18.4 Notice of Claim. Any Party alleging a Claim ("Claimant") against any other
Party ("Respondent") shall submit all of its Claims by written notification delivered to each
Respondent, stating plainly and concisely:
(a) the nature of the Claim, including a list of any alleged construction
defects, the Persons involved and Respondent's role in the Claim;
(b) the legal or contractual basis of the Claim (i.e., the specific authority out
of which the Claim arises);
(c) the date on which the Claim first arose;
(d) the name and address of every Person, including without limitation any
current or former employees of Respondent, whom Claimant believes does or may have
information relating to the Claim; and
(e) the specific relief and/or proposed remedy sought.
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18.5 Timely Initiation. All Claims shall be initiated by the Claimant within a
reasonable time after the Claim has arisen, but in no event later than two years after the Claim
arises, regardless of the nature of the Claim.
18.6 Right to be Heard. Upon receipt of a Claim and prior to the Master Association
or any Owner asserting the Claim commencing any mediation or arbitration, Respondent shall
have the right to make a written response and be heard by Claimant, affected Owners, and
Master Association in an effort to resolve the Claim.
18.7 Right to Inspect and Repair. If the Claim is based on the land development,
design, construction and/or alteration of any improvements within the Common Interest
Community then, upon reasonable notice to any affected Owners (or the Master Association if
the affected area is owned by the Master Association), Respondent shall have the right to access
the affected area at a reasonable time(s) for purposes of inspecting the condition complained of
including but not be limited to, any investigative, invasive or destructive testing. In the exercise
of the inspection rights contained herein, the Party causing the inspection to be made
("Inspecting Party") shall:
(a) be careful to avoid any unreasonable intrusion upon, or harm, damage or
costs to the other party including, without limitation, using its best efforts to avoid
causing any damage to, or interference with, any improvements on the property being
inspected ("Affected Property");
(b) minimize any disruption or inconvenience to any person who occupies the
Affected Property;
(c) remove daily all debris caused by the inspection and located on the
Affected Property; and
(d) in a reasonable and timely manner, at the Inspecting Party's sole cost and
expense, promptly remove all equipment and materials from the Affected Property and
repair and replace all damage, and restore the Affected Property to the condition of the
Affected Property as of the date of the inspection, unless the Affected Property is to be
immediately repaired.
(e) In the event the Inspecting Party wishes to make repairs to resolve the
subject matter of the Claim, the Inspecting Party shall have the right, at its option, to do
so and to enter the Affected Property at a reasonable time(s) and upon reasonable notice
for such purpose. The Inspecting Party shall not permit any claim, lien or other
encumbrance arising from the exercise of its right to inspect and/or repair to accrue
against or attach to the Affected Property.
18.8 Good Faith Negotiations. The Parties shall make every reasonable effort to meet
in person and confer for the purpose of resolving the Claim by good faith negotiation. Any party
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may be represented by attorneys and independent consultants (at such Party's cost) to assist such
party in negotiations and to attend meetings.
18.9 Mediation.
(a) If the Parties do not resolve the Claim through negotiations within 30 days
after the date of submission of the Claim to Respondent(s), as may be extended upon
agreement of all affected Parties, any Party shall have 30 additional days to submit the
Claim to mediation under the auspices of an independent mediation service reasonably
acceptable to all Parties. If no Party submits the Claim to mediation within such time, or
does not appear for the mediation, Claimant shall be deemed to have waived the Claim,
and all Respondent(s) shall be released and discharged from any and all liability to
Claimant on account of such Claim.
(b) Any settlement of the Claim through mediation shall be documented in
writing by the mediator and signed by the Parties.
(c) If the Parties do not settle the Claim within 30 days after submission of the
matter to the mediation, or within such other time as determined by the mediator or
agreed to by the Parties, the mediator shall issue a notice of termination of the mediation
proceedings ("Termination of Mediation"). The Termination of Mediation notice shall
state that the Parties are at an impasse and the date that mediation was terminated.
(d) Within 10 days after issuance of a Termination of Mediation, Claimant
shall make a final written Settlement Demand to the Respondent(s), and the
Respondent(s) shall make a final written Settlement Offer to the Claimant. If the
Claimant fails to make a Settlement Demand, Claimant's original Claim shall constitute
the Settlement Demand. If the Respondent(s) fail to make a Settlement Offer,
Respondent(s) shall be deemed to have made a "zero" or "take nothing" Settlement Offer.
(e) Each Party shall bear its own costs, including attorney's fees, and each
Party shall share equally all charges rendered by the mediator(s) and all filing fees and
costs of conducting the mediation proceeding.
(f) If the Parties agree to a resolution of any Claim through negotiation or
mediation in accordance with this Policy and any Party thereafter fails to abide by the
terms of such agreement, then any other affected Party may file suit to enforce such
agreement without the need to again comply with the procedures set forth in this Policy.
In such event, the Party taking action to enforce the agreement shall be entitled to recover
from the non-complying Party all costs incurred in enforcing such agreement, including,
without limitation, reasonable attorney's fees and court costs.
18.10 Arbitration.
(a) If the Parties do not reach a settlement of the Claim within fifteen days
after issuance of any Termination of Mediation and reduce the same to writing, the
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Claimant shall have fifteen additional days to submit the Claim to binding arbitration in
accordance with the Procedures contained below ("Arbitration Procedures") and in
accordance with the Uniform Arbitration Act.
(b) The Parties agree that where any Claim, dispute or other controversy
existing between them is submitted to arbitration, and any other Party may have liability
with respect thereto, all Parties including any third Parties agree that the third Parties may
be joined as additional Parties in the arbitration, or if a separate arbitration exists or is
separately initiated, to the consolidation of all arbitrations. It is the intent of the Parties to
resolve all rights and obligations of all interested Parties at one time in one forum rather
than in multiple proceedings.
(c) Within 60 days after submission of the Claim, Claimant shall file with the
arbitrator and deliver to Respondent(s) a certified list of construction defects that are the
subject of the Claim, if applicable, which list shall be signed by the attorney for Claimant,
or if Claimant does not have an attorney, by Claimant, and shall include:
(i) a statement that (A) the Claimant, or his attorney, has consulted
with a Person not a Party to the Claim with expertise in the area of each construction
defect that is the subject of the Claim (the "Construction Consultant") and (B) the
Construction Consultant has inspected the improvements for which the construction
defects are claimed, has reviewed the known facts, including such records, documents
and other materials the Construction Consultant has found to be relevant to the
construction defects, and has concluded that the Claim has substantial justification based
on the Construction Consultant's inspection and review of the known facts;
(ii) a certification that the Construction Consultant can demonstrate by
competent evidence that, as a result of training, education, knowledge and experience, the
Construction Consultant is competent to testify as an expert and render an opinion as to
the alleged construction defects;
(iii) a certification signed by the Construction Consultant stating (A)
such Person's name, address, qualifications and credentials that render him or her
competent to express an expert opinion as to the alleged construction defect, (B) that he
or she has inspected each improvement and reviewed the known facts, including such
records, documents and other materials which he or she has found to be relevant to the
construction defects at issue, and (C) as to each improvement for which a construction
defect Claim is asserted, an identification of the owner of the improvement, the location
and date of construction of the improvement, and an identification of each claimed
construction defect and its specific location;
(iv) a computation of the damages alleged for each construction defect;
(v) an identification, with respect to each improvement and
construction defect, of each Party alleged to be responsible for such defect;
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(vi) a certification that each Party alleged to be responsible for the
alleged construction defect has been given written notice of the defect and an opportunity
to remedy the defect under the foregoing provisions of this Article and that the defect has
not been remedied; and
(vii) a copy of the notice of Claim served by Claimant on each Person
that is named as a Party to the Claim.
(d) If the parties are unable to agree upon an Arbitrator within 30 days from
the date of the Arbitration Notice, the presiding judge of the District Court in which the
Common Interest Community is located shall appoint a qualified arbitrator upon
application of a party.
(e) The award rendered by the Arbitrator shall be final and binding, may be
filed with any court of competent jurisdiction in the County in accordance with
applicable law and judgment obtained thereon, and execution may issue.
(f) Claimant shall notify Respondent(s) prior to retaining any Person or entity
as an expert witness for purposes of any arbitration or authorized litigation.
(g) All Claims subject to arbitration shall be decided by a single private party
arbitrator to be appointed by the parties.
(h) If the Claim is not timely submitted to arbitration, if Claimant fails to
appear for the arbitration proceeding, or if Claimant fails to file and deliver the certified
list of construction defects as provided in subparagraph (c) above, the Claim shall be
deemed abandoned, and Respondent(s) shall be released and discharged from any and all
liability to Claimant arising out of such Claims.
(i) No person shall serve as the arbitrator where that person has any financial
or personal interest in the result of the arbitration or any family, social or significant
professional acquaintance with any other party to the arbitration. Any person designated
as an arbitrator shall immediately disclose in writing to all Parties any circumstance
likely to affect the appearance of impartiality, including any bias or financial or personal
interest in the outcome of the arbitration ("Arbitrator Disclosure"). If any Party objects to
the service of any arbitrator within 14 days after receipt of that Arbitrator's Disclosure,
such arbitrator shall be replaced in the same manner in which that arbitrator was selected.
(j) The Arbitrator shall fix the date, time and place for the hearing. The
arbitration proceedings shall be conducted in the County in which the Common Interest
Community is located unless otherwise agreed by the Parties.
(k) No formal discovery shall be conducted in the absence of an order of the
Arbitrator or express written agreement among all the Parties. Oral statements, not made
during the arbitration proceeding, unless verified or authorized by a written document,
shall not be admissible in any arbitration proceeding.
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(l) Unless directed by the Arbitrator, there will be no post-hearing briefs.
(m) The Arbitration Award shall address each specific Claim to be resolved in
the arbitration, provide a summary of the reasons therefore and the relief granted, and be
rendered promptly after the close of the hearing and no later than 14 days from the close
of the hearing, unless otherwise agreed by the Parties. The Award shall be in writing and
shall be signed by the Arbitrator.
(n) The Arbitrator shall award the prevailing party such party's costs and
expenses, including reasonable attorney's fees. In the event that the arbitration is between
the Master Association and an Owner or Owners, and the Owner or Owners are the
prevailing parties, then the attorneys fees awarded shall be Common Expenses, but shall
not be assessed against those Owners that were the prevailing parties.
18.11 Consensus for Master Association Action. Except as otherwise provided for in
this Policy, the Master Association shall not commence any action, mediation or arbitration
against any Party for a Claim unless the Owners to which at least 67% of the votes in the Master
Association are allocated agree to such proceedings. However, such Owner consent must be
obtained by the Master Association only after the Board delivers written notice to all Members
of the Master Association in accordance with the procedures set forth in the Bylaws with respect
to meetings of Members; which notice shall include:
(a) a description of the nature of the Claim and the relief sought;
(b) a copy of any written response thereto, including any settlement proposal;
(c) a statement advising Owners of their duties to disclose to prospective
purchasers and lenders the Claim that the Master Association proposes to assert;
(d) a statement that any recovery from the action may not result in receipt of
funds to pay all costs of remedying the Claim as estimated by experts retained by the
Master Association;
(e) an estimate of the expenses and fees to the Master Association that the
Board anticipates will be incurred in prosecuting the claim;
(f) a description of the agreement with the attorneys whom the Board
proposes to retain to prosecute the cause of action; and
(g) any other information required to be disclosed pursuant to C.R.S. § 38-
33.3-303.5.
18.12 Liability for Failure to Maintain an Action. No director or officer of the
Master Association shall be liable to any Person for failure to institute or maintain or bring to
conclusion a cause of action, mediation or arbitration for a Claim if the following criteria are
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satisfied: (a) the director or officer was acting within the scope of his or her duties; (b) the
director or officer was acting in good faith; and (c) the act or omission was not willful, wanton or
grossly negligent.
18.13 Utilization of Funds Resulting from the Cause of Action. In the event the
Master Association receives funds as a result of any settlement, mediation, arbitration or
judgment based upon a cause of action, after payment of fees and costs incurred in connection
with prosecution of such action, the Master Association shall: (a) deposit the proceeds in a
special, interest-bearing account; and (b) utilize the proceeds only for the purpose of performing
remedial or repair work on the conditions which were the subject of the Claim or otherwise for
purposes of remedying the Claim.
18.14 Exclusive Remedy. The provisions contained in this Article shall be the sole and
exclusive remedy that the Master Association and other Parties shall have against Declarant for
any Claim, and Declarant, the Master Association and each Owner expressly waives any right it
may have to seek resolution of any Claim contemplated by this Article in any court of law or
equity and any right to trial by jury.
18.15 Costs. Should any Party commence litigation or any other action against any
other Party, in violation of the terms of this Article, such Party shall reimburse the costs and
expenses, including attorneys' fees, incurred by the other Party seeking dismissal of such
litigation or action. If Claim involves Declarant or the Master Association, no Party shall record
a memorandum or notice of lis pendens or similar instrument that would encumber or create a
lien on real property owned by either Declarant or the Master Association, and any recording of
the same shall be null and void and of no force or effect.
IN WITNESS WHEREOF, Declarant has executed this Master Declaration as of the day
and year first above written.
Spring Valley Holdings, LLC, a Delaware Limited
Liability Company
By:____________________________________________
Its:
2
STATE OF ____________ )
) ss.
COUNTY OF _________ )
The foregoing Master Declaration was acknowledged before me this ______ day of
______________, 2022, by ___________________________ as __________ of Spring Valley
Holdings, LLC, a Delaware Limited Liability Company, Declarant.
WITNESS my hand and official seal.
My commission expires:
(SEAL) __________________________________________
Notary Public
EXHIBIT A
LEGAL DESCRIPTION OF COMMON INTEREST COMMUNITY
Lot P1;
OSP Parcel A;
OSP Parcel B;
OSR Parcel A; and
OSR Parcel B,
Spring Valley Ranch P.U.D. (Phase I) according to the Final Plat of Spring Valley Ranch P.U.D.
(Phase I), recorded October 21, 2007 at Reception No. 793243 as amended by First Amended
Plat of Spring Valley Ranch P.U.D. Phase 1, Final Plat recorded December 5, 2012 as Reception
No. 828064 in the Office of the Clerk and Recorder of Garfield County, ColoradoSpring Valley
Ranch P.U.D. (Phase I), according to the Final Plat of said Phase I recorded
__________________, 2007 at Reception No. ____________ in the Office of the Clerk and
Recorder of Garfield County, Colorado, excepting and excluding:
(a) Club-1 Parcel, as depicted and described on said Final Plat.
(b) OS/G-1 through OS/G-4 Parcels, inclusive, as depicted and described on said Final Plat.
(c) Metro-1 Parcel and Metro-2 Parcel, as depicted and described on said Final Plat.
(d) Office-1 Parcel and Office-2 Parcel, as depicted and described on said Final Plat.
(e) IF-1 Parcel, as depicted and described on said Final Plat.
EXHIBIT B
LEGAL DESCRIPTION OF ANNEXABLE PROPERTY
Overall property description
EXCEPT Spring Valley Ranch P.U.D. (Phase I), according to the Final Plat of said Phase I
recorded __________________, 2007 at Reception No. ____________ in the Office of the Clerk
and Recorder of Garfield County, Colorado.
EXHIBIT C
LEGAL DESCRIPTION OF CLUB PROPERTY
Club-1 Parcel and OS/G-1 through OS/G-4 Parcels, inclusive, as depicted and described on
Spring Valley Ranch P.U.D. (Phase I), according to the Final Plat of said Phase I recorded
__________________, 2007 at Reception No. ____________ in the Office of the Clerk and
Recorder of Garfield County, Colorado.
68\1\1088974.3
EXHIBIT D
RECORDED EASEMENTS AND LICENSES
68\1\1088974.3 2
EXHIBIT E
DEFENSIBLE SPACE EASEMENTS
68\1\1088974.3 3
EXHIBIT F
DEFENSIBLE SPACE EASEMENTS