HomeMy WebLinkAbout1.20 Draft CovenantsDECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
HALF MOON
TABLE OF CONTENTS
Contents
ARTICLE I ....................................................................................................................................................... 2
DEFINITIONS .............................................................................................................................................. 2
" ............................................................................................................................................................. 2
ARTICLE II ...................................................................................................................................................... 5
MEMBERSHIP AND VOTING RIGHTS ......................................................................................................... 5
ARTICLE III ..................................................................................................................................................... 6
EXECUTIVE BOARD NEMBERS AND OFFICERS........................................................................................... 6
ARTICLE IV ..................................................................................................................................................... 8
COVENANT FOR MAINTENANCE ASSESSMENTS ....................................................................................... 8
ARTICLE V .................................................................................................................................................... 12
ARCHITECTURAL REVIEW COMMITTEE ................................................................................................... 12
ARTICLE VI ................................................................................................................................................... 13
INSURANCE ............................................................................................................................................. 13
ARTICLE VII .................................................................................................................................................. 18
DAMAGE OR DESTRUCTION .................................................................................................................... 18
ARTICLE VIII ................................................................................................................................................. 19
EXTERIOR MAINTENANCE ....................................................................................................................... 19
ARTICLE IX ................................................................................................................................................... 21
RESTRICTIONS ......................................................................................................................................... 21
ARTICLE X .................................................................................................................................................... 27
PROPERTY RIGHTS IN THE COMMON ELEMENTS ................................................................................... 27
ARTICLE XI ................................................................................................................................................... 29
GENERAL PROVISIONS ............................................................................................................................ 29
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
HALF MOON
THIS DECLARATION is made and entered into by BATTLEMENT MESA PARTNERS, a Colorado general
partnership ("Declarant").
WITNESSETH:
THAT, WHEREAS, Declarant is the owner of that certain real property in the County of Garfield,
State of Colorado, which is described on Exhibit A, attached hereto and incorporated herein by this
Reference; and
WHEREAS, Declarant desires to subject and place upon the above-described property certain
covenants, conditions, restrictions, easements, reservations, rights-of-way, obligations, liabilities and
other charges set forth herein for the purpose of protecting the value and desirability of said property
and for the purpose of furthering a plan for the improvement, sale and ownership of said property, to
the end that a harmonious and attractive development of said property may be accomplished and the
health, comfort, safety, convenience and general welfare of the Declarant, its successors and assigns in
said property, or any portion thereof, may be promoted and safeguarded.
NOW, THEREFORE, Declarant hereby declares that all of the property described above shall be
held, sold, and conveyed subject to the following covenants, conditions, restrictions, easements, rights-
of-way, obligations, liabilities, charges and other provisions set forth herein, which are for the purpose
of protecting the value and desirability of, and which shall run with, the above-described property and
be binding on all parties having any right, title, or interest in the above-described property or any part
thereof, their heirs, personal representatives, successors, and assigns, and shall inure to the benefit of
each owner thereof.
ARTICLE I
DEFINITIONS
1. "Act" means the Colorado Common Interest Ownership Act, C.R.S. 38-33.3-101, et al., as
amended.
2. "Agencies" means and collectively refers to the Government National Mortgage Association
(GNMA), the Federal Home Loan Mortgage Corporation (FHLMC), the Federal National Mortgage
Association (FNMA), the Department of Housing and Urban Development (HUD), the Veterans
Administration (VA) or any other governmental or quasi-governmental agency or any other public,
quasi-public or private entity which performs (or may in the future perform) functions similar to those
currently performed by any of such entities.
3. "Allocated Interests" means the Common Expense Liability and votes in the Association
allocated to each Unit. The Allocated Interest of each Unit shall be equal to a fraction, the numerator of
which is 1 and the denominator of which is the total number of Units within the Common Interest
Community from time to time.
4. "Architectural Review Committee" means the committee appointed by the Declarant or by
the Association to review and approve or disapprove plans for Improvements, as more fully provided in
this Declaration.
5. "Association" means Canyon View Homeowners Association, Inc., a unit owners' association
organized under section 38-33.3-301 of the Act.
6. "Common Elements" means any real estate owned or leased by the Association other than
a Unit and shall expressly include, without limitation, the Limited Common Elements. The Common
Elements initially owned by the Association upon execution of this Declaration by Declarant are
described on Exhibit B attached hereto and incorporated herein by this reference.
7. "Common Expense Liability" means the liability for Common Expenses allocated to each
Unit based on its Allocated Interest.
8. "Common Expenses" means expenditures made or liabilities incurred by or on behalf of the
Association, together with any allocations to reserves.
9. "Common Interest Community" means the real estate described in Exhibit A to this
Declaration, as supplemented and amended from time to time, with respect to which a Person, by virtue
of such Person's ownership of a Unit, is obligated to pay for real estate taxes, insurance premiums,
maintenance, or improvement of other real estate described in this Declaration.
10. "Declarant" means Battlement Mesa Partners, a Colorado general partnership, and any
other Person or group of Persons acting in concert who:
(a) As part of a common promotional plan, offers to dispose of to a purchaser such Declarant's
interest in a Unit not previously disposed of to a purchaser; or
(b) Reserves or succeeds to any Special Declarant Right.
11. "Declaration" means this Declaration of Covenants, Conditions and Restrictions and any
other recorded instruments, however denominated, that create this Common Interest Community,
including any amendments to those instruments and also including, but not limited to, plats and maps.
12. "Development Rights" means any right or combination of rights reserved by a Declarant in
this Declaration to add real estate to this Common Interest Community and to create Units or Common
Elements within this Common Interest Community in connection with the addition of such real estate.
13. "Executive Board" means the body, regardless of name, designated in this Declaration and
the Bylaws of the Association to act on behalf of the Association.
14. "Improvements" means all exterior improvements, structures, and any appurtenances
thereto or components thereof of every type or kind, and all landscaping features, including, but not
limited to, buildings, patios, patio covers, awnings, solar collectors, painting or other finish materials on
any visible structure, additions, walkways, sprinkler systems, garages, drive- ways, screening walls,
retaining walls, stairs, decks, landscaping, hedges, windbreaks, plantings, trees, shrubs, flowers,
vegetables, sod, gravel, bark, exterior light fixtures, poles, signs, exterior tanks, and exterior cooling
equipment.
15. "Limited Common Elements" means those parts of the Common Elements which are
limited to and reserved for the exclusive use of the Unit Owner(s) of a particular Unit. Without limiting
the foregoing, the Limited Common Elements shall include each driveway which provides vehicular
access from the street to the garage of a particular Unit, and the walk leading from the front sidewalk or
street to the porch or front door of a particular Unit. Each Limited Common Element shall be used in
connection with the applicable Unit to the exclusion of the use thereof by the other Unit Owners, except
by invitation. No reference to any Limited Common Element need be made in any instrument of
conveyance, encumbrance or other instrument.
16. "Member" means each Unit Owner, membership in the Association shall be appurtenant to,
and may not be separated from, ownership of a Unit.
17. “Period of Declarant Control” means a length of time expiring ten (10) years after initial
recording of this Declaration in Garfield County, Colorado; provided, that the Period of Declarant Control
shall terminate no later than either sixty (60) days after conveyance of seventy-five percent (75%) of the
Units that May Be Created to Unit Owners other than a Declarant, two (2) years after the last
conveyance of a Unit by the Declarant in the ordinary course of business, or two (2) years after any right
to add new Units to the Declaration was last exercised.
18. "Person" means a natural person, a corporation, a partnership, a limited liability company,
an association, a trust, or any other entity or any combination thereof.
19. "Security Interest" means an interest in real estate or personal property created by
contract or conveyance which secures payment or performance of any obligation. The term includes a
lien created by a mortgage, deed of trust, trust deed, security deed, contract for deed, land sales
contract, lease intended as security, assignment of lease or rents intended as security, pledge of an
ownership interest in the Association, and any other consensual lien or title retention contract intended
as security for an obligation. For purposes of Article IV, Section 12 hereof, and, with respect to notice of
cancellation or substantial modification of certain insurance policies, to Article VI, Section 3, hereof,
"Security Interest" shall also mean and refer to any executory land sales contract wherein the
Administrator of Veterans Affairs, an Officer of the United States of America, is the seller, whether such
contract is recorded or not, and whether such contract is owned by the said Administrator or has been
assigned by the Administrator and is owned by the Administrator's assignee, or a remote assignee, and
the land records in the Office of the Clerk and Recorder of Garfield County, Colorado, show the
Administrator as having the record title to the Unit.
20. "Security Interest Holder" means any Person named as a mortgagee or beneficiary, or in a
similar capacity, under any Security Interest (including, for purposes of Article IV, Section 12 hereof, and,
with respect to notice of cancellation or substantial modification of certain insurance policies, to Article
VI, Section 3 hereof, the Administrator of Veterans Affairs, an Officer of the United States of America,
and his assigns under any executory land sales contract wherein the said Administrator is identified as
the seller, whether such contract is recorded or not and the land records of the Clerk and Recorder of
Garfield County, Colorado, show the said Administrator as having the record title to the Unit), or any
successor to the interest of any such Person under such Security Interest.
21. "Special Declarant Rights" means rights reserved for the benefit of a Declarant to perform
the following acts: To complete Improvements indicated on plats and maps filed with the Declaration, to
exercise any Development Right, to maintain sales offices, management offices, signs advertising the
Common Interest Community, and models, to use easements through the Common Elements for the
purpose of making Improvements within the Common Interest Community or within real estate which
may be added to the Common Interest Community; to make the Common Interest Community subject
to a master association, to merge or consolidate a Common Interest Community of the same form of
ownership; or to appoint or remove any officer of the Association or any Executive Board member
during any Period of Declarant Control. All of the Special Declarant Rights may be exercised by the
Declarant with respect to any portion of the property now or hereafter within the Common Interest
Community. Declarant may exercise any or all of these Special Declarant Rights at any time and from
time to time. Such rights shall terminate automatically on the earlier of the following events: (a)
conveyance of the last Unit by Declarant to a Unit Owner other than Declarant; (b) ten (10) years from
the date of recordation of this Declaration, except with respect to the appointment of officers and
directors which may only be exercised in accordance with Article III hereof.
22. "Unit" means any separate numbered lot shown upon any recorded subdivision map of the
real property described on the attached Exhibit A, or any other real property as may hereafter be
brought within the jurisdiction of the Association, with the exception of the Common Elements and any
public streets.
23. "Unit Owner" means the Declarant or other Person who owns a Unit, but does not include
a Person having an interest in a Unit solely as security for an obligation. The Declarant is the owner of
any Unit created by the Declaration until that Unit is conveyed to another Person who may or may not
be a Declarant under this Article.
24. "Units that day Be Created" means _________ (___) Units, which shall be the maximum
number of Units that may be subject to this Declaration, including those Units which may be included if
all of the property provided for in Article XI, Section 4 hereof is annexed to this Declaration.
ARTICLE II
MEMBERSHIP AND VOTING RIGHTS
1. Membership. The membership of the Association at all times shall consist exclusively of all
Unit Owners or, following termination of the Common Interest Community, of all former Unit Owners
entitled to distributions of proceeds under the Act or their heirs, personal representatives, successors or
assigns. Membership shall be appurtenant to and may not be separated from ownership of any Unit.
2. One Class of Membership. The Association shall have one class of voting membership.
Each Unit Owner shall be entitled to one (1) vote for each Unit owned in accordance with the Allocated
Interest attributable to such Unit, except that no votes allocated to a Unit owned by the Association may
be cast. The total number of votes which may be cast in connection with any matter shall be equal to
the total number of Units then existing within the Association. Except as otherwise provided in Article III
of this Declaration, during the Period of Declarant Control, the Declarant or Persons appointed by the
Declarant may appoint all officers and directors of the Association and may remove all officers and
directors of the Executive Board which have been appointed by such Declarant. A Declarant may
voluntarily surrender the right to appoint and remove officers and members of the Executive Board
before termination of the Period of Declarant Control; but, in that event, the Declarant may require, for
the duration of the Period of Declarant Control, that specified actions of the Association or Executive
Board, as described in a recorded instrument executed by the Declarant, be approved by the Declarant
before they become effective.
ARTICLE III
EXECUTIVE BOARD NEMBERS AND OFFICERS
1. Authority of Executive Board. Except as provided in this Declaration or the Association
Bylaws, the Executive Board may act in all instances on behalf of the Association.
2. Election of Unit Owners During Period of Declarant Control. No later than sixty (60) days
after conveyance of twenty- five percent (25%) of the Units that Nay Be Created to Unit Owners other
than a Declarant, at least one (1) member and not less than twenty-five percent (25%) of the members
of the Executive Board must be elected by Unit Owners other than the Declarant. Not later than sixty
(60) days after conveyance of fifty percent (50%) of the Units that Nay Be Created to Unit Owners other
than a Declarant, not less than thirty-three and one-third percent (33 1/3%) of the members of the
Executive Board must be elected by Unit Owners other than the Declarant.
3. Authority of Declarant. Except as otherwise provided in this Article, during the Period of
Declarant Control. the Declarant or Persons appointed by the Declarant may appoint all officers and
directors and may remove all officers and directors of the Executive Board appointed by it.
4. Termination of Period of Declarant Control. Not later than the termination of any Period
of Declarant Control, the Unit Owners shall elect an Executive Board of at least three members, at least
a majority of whom must be Unit Owners other than the Declarant or designated representatives of Unit
Owners other than the Declarant. The Executive Board shall elect the officers. The Executive Board
members and officers shall take office upon election.
5. Delivery of Documents by Declarant. Within sixty (60) days after the Unit Owners other
than the Declarant elect a majority of the members of the Executive Board, the Declarant shall deliver to
the Association all property of the Unit Owners and of the Association held by or controlled by the
Declarant, including, without limitation, the following items:
(a) The original or a certified copy of the recorded Declaration, as amended, of the Association's
Articles of Incorporation, Bylaws, minute book, other books and records, and any Association rules and
regulations which may have been promulgated,
(b) An accounting for Association funds and financial statements from the date the Association
received funds and ending on the date the Period of Declarant Control ends. The financial statements
shall be audited by an independent certified public accountant and shall be accompanied by the
accountant's letter expressing either the opinion that the financial statements present fairly the
financial position of the Association in conformity with generally accepted accounting principles or a
disclaimer of the accountant's ability to attest to the fairness of the presentation of the financial
information in conformity with generally accepted accounting principles and the reasons therefor. The
expense of the audit shall not be paid for or charged to the Association,
(c) The Association funds or control thereof;
(d) All of the Declarant's tangible personal property that has been represented by the Declarant
to be the property of the Association or all of the Declarant's tangible personal property that is
necessary for, and has been used exclusively in, the operation and enjoyment of the Common Elements,
and inventories of these properties,
(e) A copy, for the nonexclusive use by the Association, of the plans and specifications used in
the construction of the Improvements in the Common Interest Community,
(f) All insurance policies then in force in which the Unit Owners, the Association, or its directors
and officers are named as insured persons,
(g) Copies of any certificates of occupancy that may have been issued with respect to any
Improvements comprising the Common Interest Community,
(h) Any other permits issued by governmental bodies applicable to the Common Interest
Community and which are currently in force or which were issued within one (1) year prior to the date
on which Unit Owners other than the Declarant took control of the Association,
(i) Written warranties of the contractor, subcon- tractors, suppliers and manufacturers that are
still effective;
(j) A roster of Unit Owners and mortgagees and their addresses and telephone numbers, if
known, as shown on the Declarant's records;
(k) Employment contracts in which the Association is a contracting party; and
(l) Any service contract in which the Association is a contracting party or in which the
Association or the Unit Owners have any obligation to pay a fee to the Persons performing the services.
6. Budget. Within thirty (30) days after adoption of any proposed budget for the Common
Interest Community, the Executive Board shall mail, by ordinary first-class mail, or otherwise deliver a
summary of the budget to all the Unit Owners and shall set a date for a meeting of the Unit Owners to
consider ratification of the budget not less than fourteen (14) nor more than sixty(60) days after mailing
or other delivery of the summary. Unless at that meeting the vote of eighty percent (80%) of the Units
rejects the budget, the budget is ratified, whether or not a quorum is present. In the event that the
proposed budget is rejected, the periodic budget last ratified by the Unit Owners must be continued
until such time as the Unit Owners ratify a subsequent budget proposed by the Executive Board.
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS
1. Creation of the Lien and Personal Obligation for Assessments. Each Unit Owner,
including Declarant, by acceptance of a deed therefor, whether or not it shall be so expressed in such
deed, covenants and agrees and shall be personally obligated to pay to the Association: annual
assessments or charges, special assessments, and other charges, fines, fees, interest, late charges, and
other amounts, all as provided in this Declaration, with such assessments and other amounts to be
established and collected as hereinafter provided. The annual and special assessments, together with
interest, late charges, costs, and reasonable attorney's fees, shall be a charge on the land and shall be a
continuing lien upon the Unit against which each such assessment is made. The obligation for such
payments by each Unit Owner to the Association is an independent covenant with all amounts due,
from time to time, payable in full when due without notice or demand (except as otherwise expressly
provided in this Declaration), and without set-off or deduction. All Unit Owners of each Unit shall be
jointly and severally liable to the Association for the payment of all assessments, fees, charges and other
amounts attributable to their Unit. Each assessment, together with interest, late charges, costs, and
reasonable attorney's fees, shall also be the personal obligation of the Person who was the Unit Owner
of such Unit at the time when the assessment became due.
The personal obligation for delinquent assessments shall not pass to such Unit Owner's successors
in title unless expressly assumed by them. The Association's lien on a Unit for assessment shall
be superior to any homestead exemption now or hereafter provided by the laws of the State of
Colorado or any exemption now or hereafter provided by the laws of the United States. The
acceptance of a deed to land subject to this Declaration shall constitute a waiver of the homestead
and any other exemption as against said assessment lien.
2. Purpose of Assessments. The assessments levied by the Association shall be used
exclusively to promote the recreation, health, safety and welfare of the residents of the Units, and for all
of those purposes and activities which may be required of the Association or which the Association may
be empowered to pursue pursuant to this Declaration or the Articles of Incorporation or Bylaws of the
Association, or by law, provided, however, that such assessments levied during the Period of Declarant
Control may not be used for the purpose of constructing capital Improvements.
3. Initial Annual Assessment. Until the effective date of an Association budget ratified by the
Unit Owners with a different amount for the Common Expense assessment, as provided above, the
amount of the annual Common Expense assessment against each Unit shall be computed at the rate of
________________________________ ($___.00) per Unit per month.
4. Rate of Assessment. Annual and special assessments shall be fixed at a uniform rate for all
Units sufficient to meet the expected needs of the Association. The Common Expense assessments shall
include an adequate reserve fund for the maintenance, repair and replacement of those items that must
be maintained, repaired or replaced on a periodic basis, and for the payment of insurance deductibles.
All Common Expenses shall be assessed against all the Units in accordance with the Allocated Interests
set forth in this Declaration. If the Common Expense Liability is reallocated, Common Expense
assessments and any installment thereof not yet due shall be recalculated in accordance with the
reallocated Common Expense Liability.
5. Date of Commencement of Annual Assessments. Until the Association makes a Common
Expense assessment, the Declarant shall pay all Common Expenses. After any assessment has been
made by the Association, assessments shall be made no less frequently than annually and shall be based
on a budget adopted by the Association as provided above. The annual Common Expense assessments
shall be due and payable in monthly installments, in advance, or on such other dates, and with such
frequency (which may be other than monthly, but not less frequently than annually), as the Executive
Board determines in its discretion from time to time, provided that the first annual assessment shall be
adjusted to reflect the time remaining in the first Association fiscal year. Any Unit Owner purchasing a
Unit between Common Expense assessment due dates shall pay a pro rata share of the last payment
due.
6. Special Assessments. In addition to the annual Common Expense assessments authorized in
this Article, the Association, with the approval of two-thirds (2/3) of a quorum of Association votes cast
by Members voting in person or by proxy at a meeting duly called for this purpose, may levy, in any
fiscal year, a special assessment applicable to that year only, for the purpose of defraying in whole or in
part the cost of any construction, reconstruction, repair or replacement of a capital improvement upon
any portion of real property for which the Association has repair and/or reconstruction obligations,
including fixtures and personal property related thereto, or for repair or reconstruction of any damaged
or destroyed Improvements located on said real property, or for the funding of any operating deficit
incurred by the Association. Any such special assessment shall be set against each Unit in accordance
with the Allocated Interests set forth in this Declaration. A meeting of the Members called for the
purpose of considering the establishment of a special assessment shall be held in conformance with
Section 7 of this Article IV. Notwithstanding the foregoing, special assessments levied during the Period
of Declarant Control may not be used for the purpose of constructing capital Improvements.
7. Notice and Quorum for Any Special Assessments. Written notice of any meeting called for
the purpose of taking any action authorized under Section 6 of this Article shall be sent to all Members
not less than 30 days nor more than 60 days in advance of the meeting. At the first such meeting called,
the presence of Members or of proxies entitled to cast sixty percent (60%) of all the Membership votes
shall constitute a quorum. If the required quorum is now present, another meeting may be called
subject to the same notice requirement, and the required quorum at the subsequent meeting shall be
one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be
held more than 60 days following the preceding meeting.
8. Lien for Assessments.
(a) The Association has a statutory lien on a Unit for any assessment levied against that Unit or
for fines imposed against its Unit Owner. Fees, charges, late charges, attorney fees, fines and interest
charged pursuant to this Declaration are enforceable as assessments under this Article. The amount of
the lien shall include all those items set forth in this Section from the time such items become due. If an
assessment is payable in installments, each installment is a lien from the time it becomes due, including
the due date set by any valid Association acceleration of installment obligations.
(b) Recording of the Declaration constitutes record notice and perfection of the lien. No further
recordation of any claim of lien for assessments is required. However, the Executive Board or managing
agent of the Association may prepare, and record in Garfield County, Colorado, a written notice setting
forth the amount of the unpaid indebtedness, the name of the Unit Owner of the Unit, and a description
of the Unit. If a lien is filed, the costs and expenses thereof shall be added to the assessment for the Unit
against which it is filed and collected as part and parcel thereof. The Association's lien may be foreclosed
in like manner as a mortgage on real estate.
(c) A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are
instituted within six (6) years after the full amount of assessments become due.
(d) Unless the Declaration otherwise provides, if two(2) or more associations have liens for
assessments created at any time on the same property, those liens have equal priority.
9. Priority of Association Lien.
(a) A lien under this Article IV is prior to all other liens and encumbrances on a Unit except:
(1) Liens and encumbrances recorded before the recordation of the Declaration,
(2) A Security Interest on the Unit which has priority over all other Security Interests on
the Unit and which was recorded or perfected before the date on which the assessment
sought to be enforced became delinquent; and
(3) Liens for real estate taxes and other governmental assessments or charges against
the Unit.
(b) Subject to subsection (d) of this Section, a lien under this Section is also prior to the Security
Interests described in the preceding subsection (a) to the extent of an amount equal to the Common
Expense assessments based on a periodic budget adopted by the Association as provided above, which
would have become due, in the absence of any acceleration, during the six (6) months immediately
preceding institution by either the Association or any party holding a lien senior to any part of the
Association lien created under this Section of an action or a nonjudicial foreclosure either to enforce or
to extinguish the lien.
(c) This Section does not affect the priority of mechanics' or materialmen's liens or the priority
of liens for other assessments made by the Association. A lien under this Article is not subject to the
provisions of part 2 of Article 41 of Title 38, C.R.S., as amended, or to the provisions of Section 15-11-
201, C.R.S. 1973, as amended.
(d) The Association shall have the statutory lien described in subsection (a) of this Section for
any assessment levied or fine imposed after ___ __, ____. Such lien shall have the priority described in
subsection (b) of this Section if the other lien or encumbrance is created after ___ __, ____.
10. Receiver. In any action by the Association to collect assessments or to foreclose a lien for
unpaid assessments, the court may appoint a receiver of the Unit Owner to collect all sums alleged to be
due from the Unit Owner prior to or during the pending of the action. The court may order the receiver
to pay any sums held by the receiver to the Association during the pending of the action to the extent of
the Association's Common Expense assessments.
11. Certificate of Status of Assessments. The Association shall furnish to a Unit Owner or such
Unit Owner's designee or to a Security Interest Holder or its designee, upon written request delivered
personally or by certified mail, first class postage prepaid, return receipt, to the Association's registered
agent, a written statement setting forth the amount of unpaid assessments currently levied against such
Unit Owner's Unit. The statement shall be furnished within fourteen (14) calendar days after receipt of
the request and is binding on the Association, the Executive Board, and every Unit Owner. If no
statement is furnished to the Unit Owner or Security Interest Holder or their designee, delivered
personally or by certified mail, first class postage prepaid, return receipt requested, to the inquiring
party, then the Association shall have no right to assert a lien upon the Unit for unpaid assessments
which were due as of the date of the request.
12. Effect of Non-Payment of Assessments, Remedies of the Association. Any assessment
not paid within ten (10) days after the due date thereof may bear interest from the due date at the rate
of ____________ (__%) per annum, or at such lesser rate as may be set from time to time by the
Executive Board, and the Executive Board may assess thereon a late charge in such amount(s) per
month as may be set at any time, from time to tine, by the Executive Board, so long as such amount(s)
(in conjunction with the aforesaid delinquent interest) does not exceed the applicable usury rate
permitted by law at such time. The Association may bring an action at law against the Unit Owner
personally obligated to pay the same, or foreclose the lien against such Unit Owner's Unit. If a judgment
or decree is obtained, including without limitation in a foreclosure action, such judgment or decree shall
include interest on the assessment and a reasonable attorney's fee to be fixed by the court, together
with the costs of the action, and may include interest and late charges, as above provided. No Unit
Owner may be exempt from liability for payment of the assessments by waiver of the use or enjoyment
of any of the common Elements or by abandonment of the Unit against which the assessments are
made. This Article does not prohibit actions or suits to recover sums for which this Declaration creates a
lien or to prohibit the Association from taking a deed in lieu of foreclosure.
13. Surplus Funds. Any surplus funds of the Association remaining after payment of or
provision for Common Expenses and any prepayment of or provision for reserves shall be retained by
the Association for use as directed by the Executive Board in its discretion from time to time, and need
not be paid to the Unit Owners in proportion to their Common Expense Liability or credited to them to
reduce their future Common Expense Assessments.
14. Working Capital Fund. The Association or Declarant shall require the first Unit Owner of
any Unit who purchases that Unit from Declarant to make a non-refundable contribution to the
Association in the amount of ___________ and 00/100 Dollars ($___.00) (regardless of whether or not
assessments have commenced as provided in Section 5 of this Article). Said contribution shall be
collected and transferred to the Association at the time of closing of the sale by Declarant of each Unit
and shall, until use, be maintained in a segregated account with other such working capital funds for the
use and benefit of the Association, including, without limitation, to meet unforeseen expenditures or to
purchase additional equipment, property or services. Such contribution to the working capital fund shall
not relieve a Unit Owner from making regular payments of assessments as the same become due. Upon
the transfer of his Unit, a Unit Owner shall be entitled to a credit from his transferee (but not from the
Association) for the aforesaid contribution to working capital fund.
15. Assessments for Misconduct. If any common Expense is caused by the misconduct of any
Unit Owner, the Association may assess that Common Expense exclusively against such Unit Owner and
his Unit, and the amounts thereof shall be subject to all of the Association's rights with respect to the
collection and enforcement of assessments as provided in Article IV hereof.
ARTICLE V
ARCHITECTURAL REVIEW COMMITTEE
1. Composition of Committee. The Architectural Review Committee shall consist of three (3)
or more Persons appointed to the Executive Board; provided, however, that until all of the Units have
been conveyed by Declarant to the first Unit Owner thereof (other than Declarant), Declarant shall
appoint the Architectural Review Committee. The power to "appoint," as provided herein, shall include
without limitation the power to: constitute the initial membership of the Architectural Review
Committee, appoint member(s) to the Architectural Review Committee on the occurrence of any
vacancy therein, for whatever reason; and remove any member of the Architectural Review Committee,
with or without cause, at any time, and appoint the successor thereof. Each such appointment may be
made for such term(s) of office, subject to the aforesaid power of removal, as may be set from time to
time in the discretion of the appointor.
2. Review by Committee. No Improvements shall be constructed, erected, placed, planted,
applied or installed upon any Unit unless complete plans and specifications therefor (said plans and
specifications to show exterior design, height, materials, color, and location of the Improvements,
plotted horizontally and vertically, location and size of driveways, location, size, and type of landscaping,
walls, windbreaks and grading plan, as well as such other materials and information as may be required
by the Committee), shall have been first submitted to and approved in writing by the Architectural
Review Committee; provided, however, that the Declarant shall be exempt from seeking or obtaining
Architectural Review Committee approval during Declarant's development of, construction on, or sales
of any Unit or residence on any Unit. The Architectural Review Committee shall exercise its reasonable
judgment to the end that all Improvements conform to and harmonize with the existing surroundings,
residences, landscaping and structures. In its review of such plans, specifications and other materials
and information, the Architectural Review Committee may require that the applicant(s) reimburse the
Committee for the actual expenses incurred by the Committee in the review and approval process. Such
amounts, if any, shall be levied in addition to the Common Expense assessment against the Unit for
which the request for Architectural Review Committee approval was made, but shall be subject to the
Association's lien for assessments and subject to all other rights of the Association for the collection of
such assessments, as more fully provided in this Declaration.
3. Procedures. The Architectural Review Committee shall approve or disapprove all requests
for approval within forty-five (45) days after the complete submission of all plans, specifications, and
other materials and information which the Committee may require in conjunction therewith. If the
Architectural Review Committee fails to approve or disapprove any request within forty-five (45) days
after the complete submission of all plans, specifications, materials and other information with respect
thereto, approval shall not be required and this Article shall be deemed to have been fully complied
with.
4. Vote. A majority vote of the Architectural Review Committee is required to approve a
request for approval pursuant to this Article.
5. Records. The Architectural Review Committee shall maintain written records of all
applications submitted to it and all actions taken by it thereon, for a period of three (3) years after
submission of such application or the taking of such action, as applicable, and such records shall be
available to Members for inspection at reasonable hours of the business day.
6. Liability. The Architectural Review Committee and the members thereof, as well as any
representative of the Committee appointed to act on its behalf, shall not be liable in damages to any
Person submitting requests for approval or to any Unit Owner by reason of any action, failure to act,
approval, disapproval, or failure to approve or disapprove in regard to any matter within its jurisdiction
hereunder.
7. Variance. The Architectural Review Committee may grant reasonable variances or
adjustments from any conditions and restrictions imposed by this Article or Article IX hereof, in order to
overcome practical difficulties or prevent unnecessary hardships arising by reason of the application of
any such conditions and restrictions. Such variances or adjustments shall be granted only in case the
granting thereof shall not be materially detrimental or injurious to the other property or improvements
in the neighborhood and shall not militate against the general intent and purpose hereof.
8. Waivers. The approval or consent of the Architectural Review Committee, any
representative thereof, or the Executive Board, to any application for architectural approval shall not be
deemed to constitute a waiver of any right to withhold or deny approval or consent by the Committee,
any representative thereof, or the Executive Board, as to any application or other matters whatsoever as
to which approval or consent may subsequently or additionally be required.
9. Other Required Approvals. In addition to obtaining the approval of the applicable
governmental agencies and entities, certain planned Improvements must have the prior approval of the
Architectural Committee provided for in that certain recorded Amended and Restated Declaration of
Covenants, Conditions and Restrictions for Battlement Mesa, as supplemented and amended. Hence, in
addition to the requirements of this Article, applicants for Architectural Review Committee approval
must also comply with the requirements of said Amended and Restated Declaration in order to obtain
approval of the Architectural Committee as provided therein. However, approval of Improvements by
the Architectural Committee is not a guaranty of approval by the Architectural Review Committee, or
vice versa.
ARTICLE VI
INSURANCE
1. Insurance. The Association may maintain insurance in connection with parcels of real
property which the Association has an obligation to maintain, repair and/or reconstruct. The Association
may maintain the following types of insurance, to the extent that such insurance is reasonably available,
considering the availability, cost and risk coverage provided by such insurance, and the cost of said
coverage shall be paid by the Association as Common Expenses. Notwithstanding any of the specific
insurance requirements specified in this Article, the Association may also consider, in determining the
types and amount of insurance it needs to obtain, the then existing requirements of any of the Agencies
with respect to their insurance, guaranty, or purchase of Security Interests.
(a) A policy of property insurance covering all parcels of real property for which the Association
has the duty to repair and/or reconstruct, except for land, foundation, excavation and other matters
normally excluded from coverage, in an amount not less than necessary to comply with any co-
insurance percentage stipulated in the insurance policy. Further, said policy shall contain a
"Replacement Cost Endorsement" providing that any claim will be settled on a full replacement cost
basis without deduction for depreciation, and include an "Inflation Guard Endorsement" and an "Agreed
Amount Endorsement." The Association may also purchase any or all of the following: a "Demolition
Endorsement," an "Increased Cost of Construction Endorsement," a "Contingent Liability from Operation
of Building Laws Endorsement," a "Vacancy Permit Endorsement" or the equivalent, and coverage on
personal property owned by the Association including fixtures and building service equipment,
furnishings and supplies. Such insurance as maintained by the Association pursuant to this subsection
shall afford protection against at least the following:
(1) loss or damage by fire and other perils normally covered by the standard extended
coverage endorsement, and
(2) such other risks as shall customarily be covered with respect to projects similar in
construction, location and use, including all perils normally covered by the standard "all risk"
endorsement, where such is available.
(b) A comprehensive policy of public liability insurance covering parcels of real property which
the Association has the obligation to maintain, repair and/or reconstruct, insuring the Association in an
amount not less than One Million Dollars (S1,000,000.00) covering bodily injury, including death to
persons, personal injury and property damage liability arising out of a single occurrence. Such coverage
shall include, without limitation, legal liability of the insureds for property damage, bodily injuries and
deaths of persons in connection with the operation, maintenance or use of all parcels of real property
for which the Association has the obligation to maintain, repair and/or reconstruct, legal liability arising
out of lawsuits related to employment contracts of the Association, and protection against liability for
non-owned and hired automobiles. Such coverage may also include, if applicable, comprehensive
automobile liability insurance, garage keepers liability, liability for property of others, host liquor
liability, water damage liability, contractual liability, workmen's compensation insurance for employees
of the Association, and such other risks as shall customarily be required by private institutional
mortgage investors with respect to projects similar in construction, location and use. Such insurance
shall insure the Executive Board, Association, any managing agent, and their respective employees,
agents and all Persons acting as agents. The Declarant shall be included as an additional insured in such
Declarant's capacity as a Unit Owner and member of the Executive Board. The Unit Owners shall also be
included as additional insureds but only for claims and liabilities arising in connection with the
ownership, existence, use or management of the Common Elements or other property insured by the
Association from time to time. The insurance shall cover claims of one or more insured parties against
other insured parties.
(c) A policy providing comprehensive fidelity coverage or fidelity bonds to protect against
dishonest acts on the part of officers, directors, Unit Owners, trustees and employees of the Association
and/or any independent contractor employed by the Association for the purpose of managing the
Common Interest Community, in an amount at least equal to the estimated maximum of funds,
including maintenance reserves, in the custody of the Association at any given time, provided, however,
that such fidelity coverage or fidelity bonds shall not be in an amount less than two (2) months
aggregate Common Expense assessments on the Units, plus such reserve funds as calculated from the
current budget of the Association. The Association may carry fidelity insurance in amounts greater than
required hereinabove and may require any independent contractor employed for the purposes of
managing the Common Interest Community to carry more fidelity insurance coverage than required
hereinabove. Such fidelity coverage or bonds shall meet the following requirements:
(1) all such fidelity coverage or bonds shall name the Association as an obligee,
(2) such fidelity coverage or bonds shall contain waivers of any defense based upon the
exclusion of Persons who serve without compensation from any definition of "employee" or
similar expression.
In the event the Association has delegated some or all of its responsibility for the handling of
funds to a managing agent, the Association may require the managing agent to purchase, at its own
expense, a policy of fidelity insurance or bonds which fully complies with the provisions of this
subparagraph (c).
(d) If any parcels of real property which the Association has an obligation to repair or
reconstruct are located within an area identified by the Federal Emergency Management Agency as
having special flood hazards, and flood insurance coverage on such parcels has been made available
under the National Flood Insurance Program, then such a policy of flood insurance on such parcels in an
amount at least equal to the lesser of:
(1) the maximum coverage available under the National Flood Insurance Program for all
buildings and other insurable property located within a designated flood hazard area; or(2) one
hundred percent (100a) Of current replacement cost of all buildings and other insurable
property located within a designated flood hazard area.
(e) In addition, the Association may obtain insurance against such other risks of a similar or
dissimilar nature as it shall deem appropriate, to the extent that such coverage is reasonably available,
including, but not limited to, personal liability insurance to protect directors and officers of the
Association from personal liability in relation to their duties and responsibilities in acting as directors
and officers on behalf of the Association.
2. Insurance on the Structures on Units. The Executive Board or its agent may, but shall not
be obligated to, obtain and maintain, to the extent that such insurance is reasonably available,
considering the availability, cost and risk coverage provided by such insurance, a policy of property
insurance covering the structure(s) located on each Unit, except for land, foundation, excavation and
other items normally excluded from coverage. Said policy shall contain a "Replacement Cost
Endorsement" providing that any claim will be settled on a full replacement cost basis without
deduction for depreciation, an "Inflation Guard Endorsement," an "Agreed Amount Endorsement," and
may include other endorsement(s) as deemed appropriate by the Executive Board from time to time.
Such insurance as maintained by the Association pursuant to this section shall afford protection against
at least the following:
(a) loss or damage by fire and other perils normally covered by the standard extended coverage
endorsement; and(b) such other risks as shall customarily be covered with respect to projects similar in
construction, location and use, including all perils normally covered by the standard "All Risk"
endorsement, where such is available.
3. General Provisions of Insurance Policies. All policies of insurance carried by the
Association shall be carried in blanket policy form naming the Association as insured, or its designee as
trustee and attorney-in-fact for all Unit Owners, and each Unit Owner shall be an insured person under
such policies with respect to liability arising out of any Unit Owner's membership in the Association. The
policy or policies shall contain a standard non- contributory Security Interest Holder's clause in favor of
each Security Interest Holder and a provision that it cannot be cancelled or materially altered by either
the insured or the insurance company until thirty (30) days' prior written notice thereof is given to the
insured and each Security Interest Holder, insurer or guarantor of a Security Interest. The Association
shall furnish a certified copy or duplicate original of such policy or renewal thereof, with proof of
premium payment and a certificate identifying the interest of the Unit Owner in question, to any party
in interest, including Security Interest Holders, upon request. All policies of insurance carried by the
Association shall also contain waivers of subrogation by the insurer against any Unit Owner or member
of his household. All policies shall contain waivers of any defense based on invalidity arising from any
acts or neglect of a Unit Owner where such Unit Owner is not under the control of the Association.
4. Deductibles. The Association may adopt and establish written non-discriminatory policies
and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters
of claims adjustment.
(a) To the extent the Association settles claims for damages, it shall have the authority to assess
negligent Unit Owners causing such loss or benefiting from such repair or restoration all deductibles
paid by the Association. In the event that more than any one (1) Unit is damaged by a loss, the
Association, in its reasonable discretion, may assess each Unit Owner a pro rata share of any deductible
paid by the Association.
(b) Any loss to any Unit or to any property which the Association has the duty to maintain, repair
and/or reconstruct, and which falls within the deductible portion of such policy, shall be borne by the
Person who is responsible for the repair and maintenance of the property which is damaged or
destroyed. In the event of a joint duty of repair and maintenance of the damaged or destroyed
property, then the deductible may be apportioned among the Persons sharing in such joint duty or may
be partly or wholly borne by the Association, at the election of the Executive Board. Notwithstanding
the foregoing, after notice and hearing, the Association may determine that a loss, either in the form of
a deductible to be paid by the Association or an uninsured loss, resulted from the act or negligence of a
Unit Owner. Upon said determination by the Association, any such loss or portion thereof may be
assessed to the Unit Owner in question and the Association may collect the amount from said Unit
Owner in the same manner as any assessment.
5. Payment of Insurance Proceeds. Any loss covered by an insurance policy described in
Section 1 of this Article must be adjusted with the Association, but the insurance proceeds for that loss
shall be payable to any insurance trustee designated for that purpose, or otherwise to the Association,
and not to any Security Interest Holder. The insurance trustee or the Association shall hold any
insurance proceeds in trust for the Association, Unit Owners and Security Interest Holders as their
interests may appear. Subject to the provisions of Section 1 of Article VII of this Declaration, the
proceeds must be disbursed first for the repair or restoration of the damaged property; and the
Association, Unit Owners and Security Interest Holders are not entitled to receive payment of any
portion of the proceeds unless there is a surplus of proceeds after the property has been completely
repaired or restored or the Common Interest Community is terminated.
6. Association Insurance as Primary Coverage. If at the time of any loss under any policy
which is in the name of the Association, there is other insurance in the name of any Unit Owner and
such Unit Owner's policy covers the same property or loss, or any portion thereof, which is covered by
such Association policy, such Association policy shall be primary insurance not contributing with any of
such other insurance. A Unit Owner shall be liable to the Association for the amount of any diminution
of insurance proceeds to the Association as a result of policies of insurance of a Unit Owner, and the
Association may collect the amount from said Unit Owner in the same manner as any assessment. Any
such Unit Owner's policy shall also contain waivers of subrogation.
7. Acceptable Insurance Companies. Each hazard insurance policy purchased by the
Association must be written by a hazard insurance carrier which has a current rating by Best's Insurance
Reports of B/VI or better, or a financial rating of Class V provided it has a general policy holder's rating of
at least A, and is authorized by law to do business in the State of Colorado. The Association shall not
obtain any policy where (a) under the terms of the insurance company's charter, bylaws, or policy,
contributions or assessments may be made against the mortgagor or mortgagee's designee, or (b) under
the terms of the carrier's charter, bylaws, or policy, loss payments are contingent upon action by the
carrier's Board of Directors, policy holders or members, or (c) the policy includes any limiting clauses
(other than insurance conditions) which could prevent mortgagees or any Unit Owner from collecting
insurance proceeds.
8. Insurance to be Maintained by Unit Owners. An insurance policy issued to the Association
does not obviate the need for Unit Owners to obtain insurance for their own benefit. Insurance
coverage on each Unit and the Improvements thereon, if not carried by the Association in its discretion,
and the furnishings and other items of personal property belonging to a Unit Owner, and public liability
insurance coverage on each Unit, shall be the responsibility of the Unit Owner of such Unit. Unit Owners
shall also be responsible for obtaining any policies of title insurance required in connection with any sale
of a Unit other than the purchase by the initial Unit Owner from the Declarant.
9. Annual Review of Insurance Policies. All insurance policies carried by the Association shall
be reviewed at least annually by the Executive Board to ascertain that the coverage provided by such
policies adequately covers those risks insured by the Association. Prior to obtaining any policy of fire
insurance or renewal thereof, the Executive Board or the managing agent of the Association may obtain
a written appraisal from a duly qualified real estate or insurance appraiser, or other person
knowledgeable as to replacement costs, which appraiser shall reasonably estimate the full replacement
value of the Improvements to the insured for the purpose of determining the amount of insurance
required pursuant to the provisions of this Article. Any Security Interest Holder shall be furnished with a
copy of such appraisal upon request.
10. Notice of Cancellation. If the insurance described in Section 1 of this Article is not
reasonably available, or if any policy of such insurance is cancelled or not renewed without a
replacement policy therefor having been obtained, the Association promptly shall cause notice of that
fact to be hand delivered, or sent prepaid by United States mail, to all Unit Owners.
ARTICLE VII
DAMAGE OR DESTRUCTION
1. Damage or Destruction.
(a) Any portion of the Common Interest Community for which insurance is carried by the
Association under this Declaration, and which is damaged or destroyed, must be repaired or replaced
promptly by the Association unless:
(1) The Common Interest Community is terminated,
(2) Repair or replacement would be illegal under any state or local statute or ordinance
governing health or safety,
(3) Eighty percent (80%) of the Unit Owners, including every Unit Owner of a Unit that
will not be rebuilt, vote not to rebuild, or
(4) Prior to the conveyance of any Unit to a Person other than the Declarant, the holder
of a deed of trust or mortgage on the damaged portion of the Common Interest Community
rightfully demands all or a substantial part of the insurance proceeds.
(b) The cost of repair or replacement that is covered by insurance carried by the Association, but
which is in excess of insurance proceeds and reserves, is a Common Expense. If the entire Common
Interest Community is not repaired or replaced, the insurance proceeds attributable thereto must be
used to restore the damaged area to a condition compatible with the remainder of the Common
Interest Community and, except to the extent that other Persons will be distributees, the remainder of
the proceeds must be distributed to all the Unit Owners or lien holders, as their interests may appear, in
proportion to the Common Expense Liability of all the Units. If the Unit Owners vote not to rebuild any
Unit, that Unit's Allocated Interests are automatically reallocated upon the vote as if the Unit had been
condemned as provided in Article XI, Section 11 hereof, and the Association promptly shall prepare,
execute and record an amendment to this Declaration reflecting such reallocations.
2. Units. Any damage to or destruction of any structure located on a Unit on which insurance is
not carried by the Association shall, except as hereafter provided, be promptly repaired and
reconstructed by the Unit Owner thereof using insurance proceeds and personal funds of such Unit
Owner. “Repaired and reconstructed," as used in this Section 2, shall mean restoring the structure to
substantially the same condition in which it existed immediately prior to such damage or destruction,
including having the same boundaries as before. However, if a residence located on a Unit shall be
destroyed or so damaged that the residence is no longer habitable, then the Unit Owner of such Unit
shall, within a reasonable time not to exceed 120 days after the event resulting in such damage or
destruction, either commence and diligently pursue repair or reconstruction of the residence or
demolish the same. Demolition of a residence shall include removal of any foundation slab, basement
walls and floors, regrading of the Unit to a level condition, and the installation of such landscaping as
may be required by the Architectural Review Committee pursuant to a plan submitted to said
Committee by the Unit Owner of said Unit. If the Unit Owner of a Unit does not either commence repair,
reconstruction or demolition activities within a reasonable time, as provided above, and diligently
pursue the same in conformance with the plans approved by the Architectural Review Committee, then
the Association may, in its reasonable discretion, after providing the notice required in Article VIII,
Section 2 hereof, enter upon the Unit for the purpose of demolishing the residence and then landscape
the Unit in conformance with approved plans. The cost related to such demolition and landscaping shall
be the personal obligation of the Unit Owner of the Unit on which such work is performed and shall be
subject to all the terms and provisions applicable to assessments as provided in Article IV hereof,
including without limitation, interest, late charges and lien rights.
ARTICLE VIII
EXTERIOR MAINTENANCE
1. General.
(a) Maintenance, repair and replacement of Improvements located on all Common Elements,
including without limitation the Limited Common Elements, and of any drainage structure or facilities, or
other public Improvements required by the local governmental entity as a condition of development of
the Common Interest Community or any part thereof, shall be the responsibility of the Association
unless such Improvements have been dedicated to and accepted by the local governmental entity for
the purpose of maintenance, repair or replacement or unless such maintenance, repair or replacement
has been authorized by law to be performed by a special district or other municipal or quasi-municipal
entity. In addition, the Association shall provide, to the extent and with such frequency as determined
by the Executive Board in its discretion from time to time: landscape maintenance on the exterior of the
Units (to the extent that such landscaping was installed by or at the direction of the Declarant in its
development and construction of the Common Interest Community), exterior maintenance on the
structures on each Unit, including paint, repair, replacement and care of roofs, gutters, downspouts,
exterior building surfaces, and walks, but excluding exterior doors (except painting), window screens,
and windows or other glass surfaces; maintenance, reasonable repair (but not replacement) and
servicing of evaporative coolers; and removal of snow and ice on front walks and sidewalks. Further, the
Association may provide such other maintenance and repair as the Executive Board deems appropriate
from time to time. The costs to be expended for the maintenance, repair, replacement and servicing
described in this Section 1 shall, subject to Section 4 of this Article, be collected by the Association as
Common Expenses pursuant to Article IV hereof.
(b) Except as provided in subsection (a) above, the maintenance, repair and replacement of each
Unit, and the improvements thereon, including, but not limited to, the interior thereof, shall be the
responsibility of the Unit Owner of such Unit. The Association and each Unit Owner, and their agents
and contractors, are hereby granted an easement for the purpose of maintenance and repair of the Unit
Owner's Unit on, over, across, under and through any Unit upon reasonable notice to the Unit Owner
thereof. Any damage occurring to such Unit or the Improvements thereon in performing such repairs or
maintenance shall be the responsibility of the party performing or authorizing such repairs or
maintenance.
2. Association's Right to Repair, Maintain, Restore and Demolish. In the event any Unit
Owner shall fail to perform his maintenance, repair and/or reconstruction obligations in any manner
satisfactory to the Executive Board, the Association may, if said failure continues for a thirty (30) day
period after written notice to said Unit Owner by the Executive Board, enter upon said Unit subsequent
to the expiration of said thirty (30) day time period to perform any or all of such maintenance, repair or
restoration or, pursuant to Article VII, Section 2 hereof, to demolish a residence. The cost of such
maintenance, repair, reconstruction and/or demolition shall be the personal obligation of the Unit
Owner of the Unit on which such work is performed, and shall be subject to all of the terms and
provisions applicable to "assessments" as provided in Article IV hereof, including, without limitation,
interest, late charges and lien rights.
3. Access Easement. Each Unit Owner shall afford to the Association and the other Unit
Owners, and to their agents or employees, access through such Unit Owner's Unit reasonably necessary
for maintenance, repair and replacement of any Common Elements and any other property or
Improvements maintained, repaired or replaced by the Association. If damage is inflicted, or a strong
likelihood exists that it will be inflicted, on the Common Elements, any other property, or any Unit
through which access is taken, the Unit Owner responsible for the damage, or expense to avoid damage,
or the Association if it is responsible, is liable for the cost of prompt repair or the expense of avoidance.
Further, each Unit shall be subject to an easement in favor of the Association (including its agents,
employees and contractors) for performing maintenance, repair and/or reconstruction as provided in
this Article during reasonable hours after reasonable notice to the Unit Owners or occupants of any
affected Unit, except that no such notice shall be required in connection with maintenance of any
landscaping, walks, or other exterior non-intrusive maintenance, and except that in emergency
situations entry upon a Unit may be made at any time provided that the Unit Owner or occupants of
each affected Unit shall be warned of impending emergency entry as early as is reasonably possible.
A maintenance easement on the zero-lot-line edge of the property will be designated for each property.
This easement can be used for access to maintain the house with written notice of (x) days given to
neighbor. Roof projections of up to (10") are permissible in the easement, but all roof projections must
be guttered, and gutters must outlet onto owner’s own property. No sheds, lean-tos, or general storage
facilities may be placed in the easement, nor lean against a neighbor's structure. No vegetation shall
touch a neighbor's structure and irrigation for such vegetation will be no closer than 1' from a neighbor’s
structure and will not overspray onto a neighbor's structure.
4. Unit Owner's Negligence. Notwithstanding anything to the contrary contained in this
Declaration, in the event that the need for maintenance, repair or reconstruction of the Common
Elements, any Unit, any other property, or any Improvements located thereon, is caused by the willful or
negligent act or omission of any Unit Owner, or by the willful or negligent act or omission of any
member of such Unit Owner's family or by a guest or invitee of such Unit Owner, the cost of such repair,
maintenance, reconstruction or expense to avoid such damage shall be the personal obligation of such
Unit Owner to the extent that said Unit Owner would be liable for the acts of such Persons under the
laws of the State of Colorado, and any costs, expenses and fees incurred by the Association for such
maintenance, repair or reconstruction shall be added to the assessment to which such Unit Owner's Unit
is subject and shall be subject to all of the terms and provisions of Article IV of this Declaration. A
determination of the negligence or willful act or omission of any Unit Owner, or any member of a Unit
Owner's family or a guest or invitee of any Unit Owner, and the amount of the Unit Owner's liability
therefor, shall be determined by the Association at a hearing after notice to the Unit Owner, provided
that any such determination which assigns liability to any Unit Owner pursuant to the terms of this
Section may be appealed by said Unit Owner to a court of law.
5. Expenses for Property Subject to Development Rights. In addition to the liability that a
Declarant as a Unit Owner has under the Act, the Declarant alone is liable for all expenses in connection
with real estate subject to Development Rights until expiration of all Development Rights with respect to
such real estate. No other Unit Owner and no other portion of the Common Interest Community is
subject to a claim for payment of those expenses. Any income or proceeds from real estate subject to
Development Rights inures to the Declarant.
ARTICLE IX
RESTRICTIONS
l. General Plan. It is the intention of the Declarant to establish and impose a general plan for
the improvement, development, use and occupancy of the Units, all in order to enhance the value,
desirability, and attractiveness of the Units and subserve and promote the sale thereof.
2. Restrictions Imposed. This Common Interest Community is subject to the recorded
easements, licenses and other matters listed on Exhibit C attached hereto and incorporated herein by
this reference. In addition, the Declarant declares that all of the Units shall be held and shall henceforth
be sold, conveyed, used, improved, occupied, owned, resided upon and hypothecated, subject to the
following provisions, conditions, limitations, restrictions, agreements and covenants, as well as those
contained elsewhere in this Declaration.
3. Residential Use. Subject to Section 4 of this Article IX, Units shall be used for residential use
only, including uses which are customarily incident thereto, and shall not be used at any time for
business, commercial or professional purposes, provided, however, that a Unit Owner may use his Unit
for professional or home occupation(s) so long as the applicable zoning permits such use, there is no
external evidence thereof, and no unreasonable inconvenience to other residents of the Units is created
thereby. Confusing language as to what is and isn't allowed.
4. Declarant's Use. Notwithstanding anything to the contrary contained in this Declaration, it
shall be expressly permissible and proper for Declarant, its employees, agents, and contractors, to
perform such reasonable activities, and to maintain upon portions of the Units such facilities as
Declarant deems reasonably necessary or incidental to the construction and sale of Units, and
development and construction of Improvements, specifically including, without limiting the generality
of the foregoing, maintaining management offices, signs, model units and sales offices, in such
numbers, of such sizes, and at such locations as it determines in its reasonable discretion. However,
Declarant shall not perform any activity or maintain any facility on any portion of the Units in such a way
as to unreasonably interfere with or disturb any Unit Owner, or to unreasonably interfere with the use,
enjoyment or access of such Unit Owner, his family members, guests or invitees of and to his Unit and to
a public right-of-way.
5. Household Pets.
(a) No animals, livestock, birds, poultry, or insects of any kind, shall be raised, bred, kept or
boarded in or on any Unit, provided, however, that Unit Owners may keep a reasonable number of dogs,
cats, or other domestic animals which are bona fide household pets, so long as such pets are not kept
for any commercial purpose and are not kept in such number or in such manner as to violate any zoning
ordinance or other governmental requirements or to create a nuisance. Incessantly barking dogs,
whether inside or outside of a dwelling unit, shall be considered a nuisance and shall not be tolerated.
(b) When outside on any Unit or Common Elements, all household pets shall be restrained on a
leash and attended by the Unit Owner, and shall not be permitted to run freely. Pet kennels, pet runs,
pet houses, chain or cable tethers, and other similar enclosures or restraining devices, shall not be
permitted on any Unit or the Common Elements. Unit Owners shall be responsible to immediately clean
up pet litter behind their pets.
(c) The Association shall have, and is hereby given, the right and authority to determine in its
sole discretion that dogs, cats and other household pets are being kept for commercial purposes or are
being kept in such number or in such manner as to be unreasonable or to create a nuisance, or that a
Unit Owner is otherwise in violation of the provisions of this Section, and to take such action or actions
as the Association deems reasonably necessary to correct the violation. A Unit Owner's right to keep
household pets shall be coupled with the responsibility to pay for any damage caused by such pets, as
well as any costs incurred by the Association as a result of such pets, and any costs and damages shall be
subject to all of the Association's rights with respect to the collection and enforcement of assessments
as provided in Article IV hereof.
6. Construction.
(a) All construction shall be new construction and no previously erected buildings or other
structures shall be constructed at another location and then moved and set upon any Unit, except for
pre-assembled housing components approved in advance by the Architectural Review Committee.
(b) No tent, shack, temporary structure or temporary building shall be placed upon any Unit or
the Common Elements, except with the prior, discretionary written consent of the Architectural
Review Committee.
(c) Any building or structure on a Residential Site, other than the Dwelling Unit and garage, must
reside behind the yard fence out of sight and shall not exceed the height of the fence.
(d) The floor area of any single-family detached dwelling unit, exclusive of open porches and
garages, shall not be less than ____ square feet, outside measurement; and each dwelling unit shall
have an attached, enclosed garage not less than __ feet wide (1-1/2 car capacity) nor more than __ feet
wide (2 car capacity). The maximum height of any single-family detached dwelling unit and garage shall
not exceed __ feet as measured vertically from the lowest finish grade elevation to the highest roof
ridgeline elevation of the structure.
(e) The work of constructing, altering, or remodeling any structure or other Improvements shall
be prosecuted diligently from commencement until completion.
7. No Unsightliness. There shall be no outdoor storage of unsightly conditions, structures,
facilities, equipment or objects. Unsightly items, including wood piles, trash containers, snow removal
equipment and garden or maintenance equipment, shall be enclosed within the dwelling unit or
attached garage and screened from public view, except when actually in use.
8. Miscellaneous Improvements.
(a) No signs, posters, billboards, advertising devices or displays of any kind shall be erected,
placed, permitted, or maintained on any Unit other than a name plate of the occupant and a street
number, and except for a "For Sale," "Open House" or "For Rent" sign of not more than five (5) square
feet with the prior written approval of the Architectural Review Committee. Notwithstanding the
foregoing, signs, posters, billboards, advertising devices or displays used by the Declarant in connection
with the sale or rental of Units, or otherwise in connection with development of or construction in the
Common Interest Community, shall be permissible, provided that such use shall not interfere with the
Unit Owners' use and enjoyment of their Units or with their ingress or egress from a public way to their
Unit.
(b) No clothes lines, chain-linked (or other) dog runs, drying yards, service yards, wood piles or
storage areas shall be so located on any Unit as to be visible from a street or from any other Unit.
Without limiting the generality of the foregoing, the outdoor drying of clothes in public view is
prohibited.
(c) No types of refrigerating, cooling or heating apparatus shall be permitted on a roof, except
roof-mounted evaporative coolers, and no types of refrigerating, cooling or heating apparatus shall be
permitted elsewhere on a Unit, except when appropriately screened and approved in advance by the
Architectural Review Committee.
(d) No exterior radio antenna, television antenna, or other antenna, satellite dish, or audio or
visual reception device of any type shall be placed, erected or maintained on any Unit, except inside a
residence or otherwise concealed from view; provided, however, that any such devices may be erected
or installed by the Declarant during its sales or construction in the Common Interest Community.
(e) No fences shall be constructed, installed, erected or maintained on any Unit, except
pedestrian control and decorative landscape fencing by the Declarant or the Association, and
except equipment or safety control fencing by the Declarant or the Association. Wire fences are
prohibited and all fencing along the wash shall comply with CPW "Fencing with Wildlife in
Mind" guidelines.
(https://cpw.state.co.us/Documents/LandWater/PrivateLandPrograms/FencingWithWildlifeInMi
nd.pdf)
9. Vehicular Parking, Storage and Repairs.
( a ) No trailer, camping trailer, boat or boat accessories, snowmobiles, truck larger than one-ton rated
capacity, recreational vehicle or equipment or commercial vehicle, may be parked or stored anywhere
one a unit, Common Elements, or dedicated street right-of-way, except when fully screened from public
view in the side-yard behind fencing.
(b) No abandoned or inoperable vehicles of any kind shall be stored or parked anywhere on a
Unit, Common Elements, or dedicated street right-of-way, except when fully enclosed and screened
from public view within the attached garage. An "abandoned or inoperable vehicle" shall be defined as
any automobile, truck, motorcycle, van, trailer, camper, recreational vehicle or other device for carrying
passengers, goods or equipment, which has not been operated under its own propulsion for a period of
one (1) week or longer; provided, however, that any vehicle belonging to a Unit Owner which is
otherwise permitted will not be deemed to be abandoned while the Unit Owner is out of town or ill. If
the Association determines that a vehicle is abandoned or inoperable, a written notice calling for its
removal shall be delivered to the owner of the vehicle, if ownership can reasonably be ascertained, or
shall be placed in a conspicuous place on the vehicle if ownership cannot reasonably be ascertained. If
the abandoned or inoperable vehicle is not removed within seventy-two (72) hours after such notice is
delivered or posted, the Association shall have the right to remove and store the vehicle at the sole
expense of its owner, and any Unit Owner who is determined (after notice and hearing before the
Executive Board) to be responsible for the vehicle shall be subject to assessment therefor.
(c) No activity such as, but not limited to, maintenance, repair, rebuilding, dismantling, painting
or servicing of any kind of vehicle shall take place anywhere on a Unit, Common Elements, or dedicated
street right-of-way, except when fully enclosed and screened from public view within the attached
garage. This restriction shall not be deemed to prohibit washing and polishing of vehicles on driveways.
(d) There shall be no on-street parking during the period of November 1 through March 31
annually, during the hours of 11:00pm to 7:00am daily on the internal subdivision streets of ___ Streets,
to facilitate in-winter maintenance services. The Association shall have the right to
remove and store any vehicle parking in violation of the foregoing at the sole expense of its
owner, and any Unit Owner who is determined (after hearing before the Executive Board) to be
responsible for the vehicle shall be subject to assessment therefor.
10. Nuisances. No nuisance shall be permitted on any Unit nor any use, activity or practice
which is a source of annoyance or embarrassment to, or which offends or disturbs the residents of any
Unit or which interferes with the peaceful enjoyment or possession and proper use of any Unit, or any
portion thereof, by its residents. As used herein, the term "nuisance" shall not include any activities of
Declarant which are reasonably necessary to the development and construction of, and sales activities
in, the Common Interest Community; provided, however that such activities of the Declarant shall not
unreasonably interfere with any Unit Owner's use and enjoyment of his Unit, or with any Unit Owner's
ingress and egress to or from his Unit and a public way. No noxious or offensive activity shall be carried
on upon any Unit nor shall anything be done or placed on any Unit which is or may become a nuisance
or cause embarrassment, disturbance or annoyance to others. Further, no immoral, improper, offensive
or unlawful use shall be permitted or made of any Unit or any portion thereof. All valid laws, ordinances
and regulations of all governmental bodies having jurisdiction over the Units, or any portion thereof,
shall be observed.
11. Units Not to be Subdivided. No Unit shall be subdivided except for the purpose of
combining portions with an adjoining Unit provided that no additional building site is created thereby.
Not less than one entire Unit, as conveyed, shall be used as a building site.
12. No Hazardous Activities. No activities shall be conducted in the Common Interest
Community, or within Improvements constructed thereon which are or might be unsafe or hazardous to
any person or property. Without limiting the generality of the foregoing, no firearms shall be discharged
in the Common Interest Community and no open fires shall be lighted or permitted in the Common
Interest Community except in a contained firepit, chiminea, or barbecue unit while attended and/or in
use for cooking purposes or within an interior fireplace, or except such campfires or picnic fires on
property which may be designated for such use by the Association.
13. No Annoying Light, Sounds or Odors. No light shall be emitted from any Unit which is
unreasonably bright or causes unreasonable glare; no sound shall be emitted from any Unit which is
unreasonably loud or annoying; and no odor shall be permitted from any Unit which is noxious or
offensive to others.
14. Restrictions on Trash and Materials. No refuse, garbage, trash, lumber, grass, shrubs or
tree clippings, plant waste, metal, bulk materials, scrap or debris of any kind shall be kept, stored, or
allowed to accumulate in the Common Interest Community except when enclosed in a residence or
attached garage, except that any container with such materials may be placed outside at proper times
for garbage or trash pickup.
15. Minor Violations of Setback Restrictions. If upon the erection of any structure, it is
disclosed by survey that a minor violation or infringement of setback lines has occurred, such violation
or infringement shall be deemed waived by the Unit Owners of each Unit immediately adjoining the
structure which is in violation of the setback, and such waiver shall be binding upon all other Unit
Owners. However, nothing contained in this Section shall prevent the prosecution of a suit for any other
violation of the restrictions, covenants, or other provisions contained in this Declaration. A "minor
violation," for the purpose of this Section, is a violation of not more than one (1) foot beyond the
required setback lines or Unit lines. This provision shall apply only to the original structures and shall not
be applicable to any alterations or repairs to, or replacements of, any of such structures.
16. Rules and Regulations. Rules and regulations concerning and governing the Common
Elements, Units and/or this Common Interest Community may be adopted, amended or repealed from
time to time by the Executive Board, and the Executive Board may establish and enforce penalties for
the infraction thereof, including, without limitation, the levying and collecting of fines for the violation
of any of such rules and regulations.
17. Maintenance of Property, Hazardous Materials or Chemicals. No property shall be
permitted to fall into disrepair and all property, including Units, Improvements and landscaping, shall be
kept and maintained in a clean, safe, attractive and sightly condition and in good repair. No hazardous
materials or chemicals shall at any time be located, kept or stored in, on or at any Unit except such as
may be contained in household products normally kept at homes for use of the residents thereof and in
such limited quantities so as to not constitute a hazard or danger to person or property.
18. Leases. The term "lease," as used herein, shall include any agreement for the leasing or
rental of a Unit, or any portion thereof, and shall specifically include, without limitation, month- to-
month rentals and subleases. A Unit, or any portion thereof, may only be leased under the following
conditions:
(a) All leases shall be in writing and a copy of the lease delivered to the Executive Board or the
Association's managing agent, if any, and
(b) All leases shall provide that the terms of the lease and lessee's occupancy of the leased
premises shall be subject in all respects to the provisions of this Declaration, and the Articles of
Incorporation, Bylaws and rules and regulations of the Association, and that any failure by the lessee to
comply with any of the aforesaid documents, in any respect, shall be a default under the lease, and
(c) No lease shall be for less than thirty (30) days.
19. Management Agreements and Other Contracts. Any agreement for professional
management of the Association's business or other contract providing for the services of the Declarant
shall have a maximum term of ____ (_) years and any such agreement shall provide for termination by
either party thereto, with or without cause and without payment of a termination fee, upon not more
than ninety (90) days' prior written notice, provided, however, that any such management agreement(s)
entered into by the Association with a manager or managing agent prior to termination of the Period of
Declarant control shall be subject to review and approval by HUD or VA, if at the time such agreement is
entered into, HUD has insurance or VA has a guarantee(s) on one or more Security Interests, and shall
terminate absolutely, in any event, no later than thirty (30) days after termination of the Period of
Declarant Control.
20. Maintenance of Grade and Drainage; Easements for Drainage and Utilities.
(a) Each Unit Owner shall maintain the grading upon his Unit, and the Association shall maintain
the grading upon the Common Elements, at the slope and pitch fixed by the final grading thereof,
including landscaping and maintenance of the slopes. Each Unit Owner and the Association agree, for
themselves and their successors and assigns, that they will not in any way interfere with the established
drainage pattern over any such real property, from adjoining or other real property. In the event that it
is necessary or desirable to change the established drainage over any Unit or Common Elements, then
the party responsible for the maintenance of such real property shall submit a plan to the Architectural
Review Committee for its review and approval, in accordance with the provisions of Article V of this
Declaration. For purposes of this Section, "established drainage" is defined as the drainage which exists
at the time final grading of a Unit is completed.
(b) Easements for the installation and maintenance of utilities, drainage facilities, public or
private improvements and access thereto are reserved as shown on the recorded plats affecting the
Units and any amendments to such plats or as established by any other instrument of record. Declarant
hereby reserves, for itself and the Association, easements for drainage or drainage facilities across the
five (5) rear and five (5) side feet of each Unit. As more fully provided above in this Section, no
Improvements shall be placed or permitted to remain on any Unit nor shall any change in grading be
permitted to exist which may change the direction of flow or obstruct or retard the flow of water
through channels or swales within such rear and side yard drainage easements. Declarant reserves to
itself and to the Association the right to enter in and upon each five-foot rear and side yard drainage
easements and at any time to construct, repair, replace or change drainage structures or to perform
such grading, drainage or corrective work as Declarant or the Association may deem necessary or
desirable in their sole discretion from time to time.
21. Use of Common Elements. An easement is hereby granted to the Declarant through the
Common Elements as may be reasonably necessary for the purpose of discharging any of Declarant's
obligations or exercising any Special Declarant Rights. Subject to the immediately preceding sentence:
(a) No use shall be made of the Common Elements which will in any manner violate the statutes,
rules, or regulations of any governmental authority having jurisdiction over the Common Elements.
(b) No Unit Owner shall engage in any activity which will temporarily or permanently deny free
access to any part of the Common Elements to all Members, nor shall any Unit Owner place any
structure whatsoever upon the Common Elements.
(c) The use of the Common Elements shall be subject to such rules and regulations as may be
adopted from time to time by the Executive Board.
(d) No use shall ever be made of the Common Elements which will deny ingress or egress to
those Unit Owners having access to their Units only over Common Elements, and the right of ingress and
egress to said Units is hereby expressly granted.
22. Easement for Encroachments. To the extent that any Unit or Common Element
encroaches on any other Unit or Common Element, a valid easement for the encroachment exists. The
easement does not relieve a Unit Owner of liability in case of willful misconduct nor relieve a Declarant
or any other Person of liability for failure to adhere to the plats and maps.
23. Exterior Ornamentation. Personal exterior ornamentation of the Units is not permitted,
with the exception of state and national flags. However, normal and customary holiday decorations
which are temporarily installed for no more than thirty (30) days, and live potted plantings on Units, are
exempt from the submittal requirement herein.
ARTICLE X
PROPERTY RIGHTS IN THE COMMON ELEMENTS
1. Unit Owners' Easements. Subject to the provisions of this Article X, every Unit Owner shall
have a non-exclusive right and easement for the purpose of access to their Units and for use for all other
purposes, in and to the Common Elements, other than the Limited Common Elements, and such
easement shall be appurtenant to and shall pass with the title to every Unit.
2. Extent of Unit Owners' Easements. The rights and easements created hereby shall be
subject to the following:
(a) The right of the Association to borrow money for the purpose of improving the Common
Elements and to mortgage said property as security for any such loan; provided, however, that the
Association may not subject any portion of the Common Elements to a Security Interest unless such is
approved by Members casting at least eighty percent (80%) of the votes in the Association, including
eighty percent (80%) of the votes allocated to Units not owned by the Declarant, and
(b) The right of the Association to take such steps as are reasonably necessary to protect the
Common Elements against foreclosure; and
(c) The right of the Association to promulgate and publish rules and regulations with which each
Member shall strictly comply, including, but not limited to, the right of the Association to regulate
and/or restrict vehicular parking and Improvements; and
(d) The right of the Association to suspend the voting rights of a Member for any period during
which any assessment against his Unit remains unpaid and, for a period not to exceed sixty (60) days, for
any infraction of the Bylaws of the Association or the Association's rules and regulations; and
(e) The right of the Association to dedicate or transfer all or any part of the Common Elements
owned by the Association to any public agency, authority, or utility for such purposes and subject to
such conditions as may be agreed to by the Members, provided that no such dedication or transfer shall
be effective unless first approved by the Members entitled to cast at least eighty percent (80%) of the
votes in the Association, including eighty percent (80%) of the votes allocated to Units not owned by the
Declarant, and unless written notice of the proposed agreement and the proposed dedication or
transfer is sent to every Member at least thirty (30) days in advance of any action taken.
Notwithstanding the foregoing, the granting of permits, licenses and easements for public utilities, roads
or for other purposes reasonably necessary or useful for the proper maintenance or operation of the
Common Interest Community shall not be deemed a transfer within the meaning of this subsection (e),
and
(f) The right of the Association, through its Executive Board, to enter into, make, perform or
enforce any contracts, leases, agreements, licenses, easements and rights-of-way, for the use of real
property or Improvements by Unit Owners, other Persons, their family members, tenants, guests and
invitees, for any purpose(s) the Executive Board may deem to be useful, beneficial or otherwise
appropriate; and
(g) The right of the Association to close or limit the use of the Common Elements while
maintaining, repairing and making replacements in the Common Elements.
3. Use of Common Elements and Limited Common Elements.
(a) The Common Elements, except the Limited Common Elements, shall be available to all Unit
Owners, their family members and guests, for their general use and benefit involving activities such as
walking, hiking, jogging, bicycling, socializing, picnicking, family outings, photography, etc. which do not
adversely impact general use of the Common Elements by all Unit Owners. Unit Owners shall not be
permitted to construct any structures or place any permanent improvements upon the Common
Elements, or to enclose any portion of the Common Elements.
(b) The Limited Common Elements shall be available for the exclusive use of those Unit Owners,
their family members and guests, to whose Unit the subject Limited Common Element is appurtenant.
The Limited Common Elements in the Common Interest Community consist of certain driveways and
walks, as described in Article I, Section 15 hereof.
4. Delegation of Use. Any Unit Owner may delegate his rights of use of and access over the
Common Elements to the members of his family, his tenants, or contract purchasers who reside on his
Unit.
5. Payment of Taxes or Insurance by Security Interest Holders. Security Interest Holders
shall have the right, jointly or singly, to pay taxes or other charges or assessments which are in default
and which may or have become a lien against the Common Elements and may pay overdue premiums
on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for the
Common Elements, and any Security Interest Holders making any such payments shall be owed
immediate reimbursement therefor from the Association.
6. Conveyance or Encumbrance of Common Elements.
(a) Portions of the Common Elements may be conveyed or subjected to a Security Interest by
the Association only if Persons entitled to cast at least eighty percent (80%)of the votes in the
Association, including eighty percent (80%) of the votes allocated to Units not owned by a Declarant,
agree to that action.
(b) An agreement to convey Common Elements or subject them to a Security Interest must be
evidenced by the execution of an agreement, or ratification thereof, in the same manner as a deed, by
the requisite number of Unit Owners. The agreement must specify a date after which the agreement will
be void unless recorded before that date. The agreement and all ratifications thereof must be recorded
in every county in which a portion of the Common Interest Community is situated and is effective only
upon recordation.
(c) The Association, on behalf of all Unit Owners, may contract to convey an interest in the
Common Interest Community pursuant to subsection (a) of this section, but the contract is not
enforceable against the Association until approved, executed and ratified. Thereafter, the Association
has all powers necessary and appropriate to effect the conveyance or encumbrance, including the
power to execute deeds or other instruments.
(d) Unless in compliance with this Section, any purported conveyance, encumbrance, judicial
sale or other transfer of Common Elements is void.
(e) A conveyance or encumbrance of Common Elements pursuant to this Section shall not
deprive any Unit of its rights of ingress and egress to the Unit and support of the Unit.
(f) A conveyance or encumbrance of Common Elements pursuant to this section does not affect
the priority or validity of preexisting encumbrances.
ARTICLE XI
GENERAL PROVISIONS
1. Enforcement. Enforcement of the covenants, conditions, restrictions, easements,
reservations, rights-of-way, liens, charges and other provisions contained in this Declaration, the Articles
or Incorporation, Bylaws or rules and regulations of the Association, as amended, may be by any
proceeding at law or in equity against any Person (including, without limitation, the Association)
violating or attempting to violate any such provision. The Association and any aggrieved Unit Owner
shall have the right to institute, maintain and prosecute any such proceedings, and the Association shall
further have the right to levy and collect fines for the violation of any provision of any of the aforesaid
documents. In any action instituted or maintained under this section, the prevailing party shall be
entitled to recover its costs and reasonable attorneys' fees incurred pursuant thereto, as well as any and
all other sums awarded by the Court. Failure by the Association or any Unit Owner to enforce any
covenant, restriction or other provision herein contained, or any other provision of any of the aforesaid
documents, shall in no event be deemed a waiver of the right to do so thereafter.
2. Severability. All provisions of the Declaration, the Articles of Incorporation and Bylaws of
the Association are severable. Invalidation of any of the provisions of any such documents, by
judgment, court order or otherwise, shall in no way affect or limit any other provisions which shall
remain in full force and effect.
3. Conflict of Provisions. Except to the extent that any provision of this Declaration is
inconsistent with the Act, in case of any conflict between this Declaration, the Articles of Incorporation
or Bylaws of the Association, this Declaration shall control. In case of any conflict between the Articles
of Incorporation and the Bylaws of the Association, the Articles of Incorporation shall control.
4. Annexation.
(a) Additional residential property may be annexed to this Declaration with the consent of the
Members having two-thirds (2/3) of the Allocated Interests. Notwithstanding the foregoing, the
Declarant may annex to this Declaration additional property within the lands described on Exhibit D,
attached hereto and incorporated herein by this reference, until that date which is ten(10) years after
the date of recording of this Declaration in Garfield County, Colorado, without consent of any other Unit
Owners, Security Interest Holders, or any other Person, subject to a determination by HUD or VA that
the annexation is in accord with the general plan approved by them and that the structures to be
located thereon will be of comparable style, quality, size and cost to the existing Improvements (but
such determination by HUD or VA shall be required only if the Declarant seeks to obtain HUD or VA
approval of the property being annexed). Each such annexation shall be effected, if at all, by recording
of a plat or map of the property to be annexed (unless such plat or map has previously been recorded),
and by recording an Annexation of Additional Land and Declaration Amendment in the Office of the
Clerk and Recorder of Garfield County, Colorado, which document shall provide for annexation to this
Declaration of the property described in such Annexation of Additional Land and Declaration
Amendment, shall state that the Declarant is the owner of the Units thereby created, shall assign an
identifying number to each new Unit, shall describe any Common Elements within the property being
annexed, shall reallocate the Allocated Interests among all Units, and may include such other provisions
as Declarant deems appropriate. All provisions of this Declaration, including, but not limited to, those
provisions regarding obligations to pay assessments to the Association and any right to cast votes as
Members, shall apply to annexed property immediately upon recording an Annexation of Additional
Land and Declaration Amendment with respect thereto, as aforesaid. In addition to the foregoing, the
Declarant may amend this Declaration at any time during the ten (10) year period noted hereinabove, in
order to add additional real estate to the Common Interest Community from such locations as the
Declarant may elect in its sole discretion, so long as the total additional real estate so annexed to the
Common Interest Community pursuant to this sentence, and not described in the attached Exhibit D,
does not exceed ten percent (10%) of the total area described in the attached Exhibits A and D.
(b) The Declarant may exercise its development rights in all or in any portion of the property
described in the attached Exhibit D over which such rights have not already been exercised, and no
assurances are made as to the boundaries or order of exercise of any such development rights.
5. Duration, Revocation, and Amendment.
(a) Each and every provision of this Declaration shall run with and bind the land for a term of
______ (__) years from the date of recording of this Declaration, after which time this Declaration shall
be automatically extended for successive periods of ten (10) years each. Except as provided in
subsection (d) of this Section 5 or in Section 4 of this Article XI, this Declaration may be amended during
the first twenty (20) year period, and during subsequent extensions thereof, by a vote or agreement of
Unit Owners of Units to which at least sixty-seven percent (67%) of the votes in the Association are
allocated.
(b) No action to challenge the validity of an amendment adopted by the Association pursuant to
this Section may be brought more than one (1) year after the amendment is recorded.
(c) Every amendment to the Declaration must be recorded in Garfield County, Colorado, and is
effective only upon recordation.
(d) Except to the extent expressly permitted or required by other provisions of this Declaration,
no amendment may create or increase Special Declarant Rights, increase the number of Units, change
the boundaries of any Unit or the Allocated Interests of a Unit, or the uses to which any Unit is
restricted, in the absence of unanimous consent of the Unit Owners.
(e) Amendments to the Declaration that are required by this Declaration to be recorded by the
Association may be prepared, executed, recorded, and certified on behalf of the Association by any
officer of the Association designated for that purpose or, in the absence or designation, by the president
of the Association.
6. Registration of Mailing Address. Each Unit Owner and each Security Interest Holder,
insurer or guarantor of a Security Interest shall register his mailing address with the Association, and
except for annual statements and other routine notices, all other notices or demands intended to be
served upon a Unit Owner, or upon a Security Interest Holder, insurer or guarantor of a Security
Interest, shall be sent by either registered or certified mail, postage prepaid, addressed in the name of
such Person at such registered mailing address. However, if any Unit Owner fails to notify the
Association of a registered address, then any notice or demand may be delivered or sent, as aforesaid,
to such Unit Owner at the address of such Unit Owner's Unit. All notices, demands, or other notices
intended to be served upon the Executive Board or the Association shall be sent by registered or
certified mail, postage prepaid, c/o Half Moon Homeowners Association, Inc., P.O. Box ___, Battlement
Mesa, CO 81636, until such address is changed by the Association.
7. HUD or VA Approval. During the Period of Declarant Control, the following actions shall
require the prior approval of HUD or VA if, at the time any such action is taken, HUD has insurance or VA
has a guarantee(s) on one or more Security Interests: annexation of additional real property;
amendment of this Declaration, termination of this Common Interest Community, or merger or
consolidation of the Association.
8. Description of Units. A description of a Unit may set forth the name of the Common Interest
Community, the recording data for the Declaration, the county in which the Common Interest
Community is located, and the identifying number of the Unit. Such description is a legally sufficient
description of that Unit and all rights, obligations and interests appurtenant to that Unit which were
created by the Declaration or Bylaws of the Association. It shall not be necessary to use the term "unit"
as a part of a legally sufficient description of a Unit.
9. Termination of Common Interest Community.
(a) Except in the case of a taking of all the Units by eminent domain, a Common Interest
Community may be terminated only by agreement of Unit Owners of Units to which at least sixty-seven
percent (67%) of the votes in the Association are allocated.
(b) An agreement of Unit Owners to terminate must be evidenced by their execution of a
termination agreement or ratifications thereof in the same manner as a deed, by the requisite number
of Unit Owners. The termination agreement must specify a date after which the agreement will be void
unless it is recorded before that date. A termination agreement and all ratifications thereof must be
recorded in every county in which a portion of the Common Interest Community is situated and is
effective only upon recordation.
(c) Subject to the provisions of a termination agreement described in this Section, the
Association, on behalf of the Unit Owners, may contract for the sale of real estate in a Common Interest
Community following termination, but the contract is not binding on the Unit Owners until approved
pursuant to this Section. If any real estate is to be sold following termination, title to that real estate,
upon termination, vests in the Association as trustee for the holders of all interests in the Units.
Thereafter, the Association has all the powers necessary and appropriate to effect the sale. Until the
sale has been concluded and the proceeds thereof distributed, the Association continues in existence
with all the powers it had before termination. Proceeds of the sale must be distributed to Unit Owners
and lien holders as their interests may appear. Unless otherwise specified in the termination
agreement, as long as the Association holds title to the real estate, each Unit Owner and the Unit
Owner's successors in interest have an exclusive right to occupancy of the portion of the real estate that
formerly constituted the Unit. During the period of that occupancy, each Unit Owner and the Unit
Owner's successors in interest remain liable for all assessments and other obligations imposed on Unit
Owners by this Article or the Declaration.
(d) Following termination of the Common Interest Community, the proceeds of any sale of real
estate, together with the assets of the Association, are held by the Association as trustee for Unit
Owners and holders of liens on the Units, as their interests may appear.
(e) Creditors of the Association holding liens on the Units, which were perfected as a result of a
judgment before termination, may enforce those liens in the same manner as any lien holder. All other
creditors of the Association are to be treated as if they had perfected liens on the Units immediately
before termination.
(f) The respective interests of Unit Owners referred to in subsections (c), (d) and (e) of this
Section 9 are as follows:
(1) Except as provided in paragraph (2) of this subsection (f), the respective interests of
Unit Owners are the fair market values of their Units and Allocated Interests immediately before
the termination, as determined by one or more independent appraisers selected by the
Association. The decision of the independent appraisers shall be distributed to the Unit Owners
and becomes final unless disapproved within thirty (30) days after distribution by Unit Owners
of Units to which twenty-five percent (25%) of the votes in the Association are allocated. The
proportion of any Unit Owner's interest to that of all Unit Owners is determined by dividing the
fair market value of that Unit Owner's Unit and its Allocated Interests by the total fair market
values of all the Units and their Allocated Interests.
(2) If any Unit or any limited Common Element is destroyed, to the extent that an
appraisal of the fair market value thereof prior to destruction cannot be made, the interests of
all Unit Owners are their respective Common Expense Liability immediately before the
termination.
(g) Except as provided in subsection (h) of this Section, foreclosure or enforcement of a lien or
encumbrance against the entire Common Interest Community does not terminate, of itself, the
Common Interest Community. Foreclosure or enforcement of a lien or encumbrance against a portion of
the Common Interest Community other than withdrawable real estate does not withdraw that portion
from the Common Interest Community. Foreclosure or enforcement of a lien or encumbrance against
withdrawable real estate does not withdraw, of itself, that real estate from the Common Interest
Community, but the Person taking title thereto may require from the Association, upon request, an
amendment to the Declaration excluding the real estate from the Common Interest Community
prepared, executed and recorded by the Association.
(h) If a lien or encumbrance against a portion of the real estate comprising the Common Interest
Community has priority over the Declaration and the lien or encumbrance has not been partially
released, the parties foreclosing the lien or encumbrance, upon foreclosure, may record an instrument
excluding the real estate subject to that lien or encumbrance from the Common Interest Community.
The Executive Board shall reallocate interests as if the foreclosed sections were taken by eminent
domain by an amendment to the Declaration prepared, executed and recorded by the Association.
10. Transfer of Special Declarant Rights. A Special Declarant Right created or reserved under
this Declaration may be transferred only by an instrument evidencing the transfer recorded in Garfield
County, Colorado. The instrument is not effective unless executed by the transferee.
11. Eminent Domain.
(a) If a Unit is acquired by eminent domain or part of a Unit is acquired by eminent domain
leaving the Unit Owner with a remnant which may not practically or lawfully be used for any purpose
permitted by this Declaration, the award must include compensation to the Unit Owner for that Unit
and its Allocated Interests whether or not any Common Elements are acquired. Upon acquisition, unless
the decree otherwise provides, that Unit's Allocated Interests are automatically reallocated to the
remaining Units in proportion to the respective Allocated Interests of those Units before the taking. Any
remnant of a Unit remaining after part of a Unit is taken under this subsection (a) is thereafter Common
Elements.
(b) Except as provided in subsection (a) of this section, if part of a Unit is acquired by eminent
domain, the award must compensate the Unit Owner for the reduction in value of the Unit and its
interest in the Common Elements whether or not any Common Elements are acquired. Upon
acquisition, unless the decree otherwise provides:
(1) That Unit's Allocated Interests are reduced in proportion to the reduction in the size
of the Unit or on any other basis specified in this Declaration; and
(2) The portion of Allocated Interests divested from the partially acquired Unit is
automatically reallocated to that Unit and to the remaining Units in proportion to the respective
interests of those Units before the taking, with the partially acquired Unit participating in the
reallocation on the basis of its reduced Allocated Interests.
(c) If part of the Common Elements is acquired by eminent domain, that portion of any award
attributable to the Common Elements taken must be paid to the Association. For the purposes of
acquisition of a part of the Common Elements, service of process on the Association shall constitute
sufficient notice to all Unit Owners, and service of process on each individual Unit Owner shall not be
necessary.
(d) The court decree shall be recorded in Garfield County, Colorado.
(e) The reallocations of Allocated Interests pursuant to this Section shall be confirmed by an
amendment to the Declaration prepared, executed, and recorded by the Association without the
consent or approval of any Members or other Persons.
12. Association as Trustee. With respect to a third Person dealing with the Association in the
Association's capacity as a trustee, the existence of trust powers and their proper exercise by the
Association may be assumed without inquiry. A third Person is not bound to inquire whether the
Association has the power to act as trustee or is properly exercising trust powers. A third Person,
without actual knowledge that the Association is exceeding or improperly exercising its powers, is fully
protected in dealing with the Association as if it possessed and properly exercised the powers it purports
to exercise. A third Person is not bound to assure the proper application of trust assets paid or delivered
to the Association in its capacity as trustee.
13. Dedication of Common Elements. Declarant, in recording this Declaration of Covenants,
Conditions and Restrictions, has designated certain areas of land as Common Elements intended for
the common use and enjoyment of Unit Owners for recreation and other related activities. The
Common Elements owned by the Association is not dedicated hereby for use by the general public
but is dedicated to the common use and enjoyment of the Unit Owners, as more fully provided in
this Declaration of Covenants, Conditions and Restrictions.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto set its hand
and seal this _________ day of ___________, 2021.
DECLARANT:
BATTLEMENT MESA PARTNERS, a Colorado general partnership
By: RISING TIDES, LLC, a Colorado limited liability corporation
By: ________________________________________________
Its: ________________________________________________
STATE OF COLORADO )
) ss.
COUNTY OF ___________________ )
The foregoing instrument was acknowledged before me this ________ day of ______________,
2021, by ______________________ as ______________________of RISING TIDES, LLC., a Colorado
limited liability corporation, as general partner of BATTLENENT MESA PARTNERS, a Colorado general
partnership.
Witness my hand and official seal.
My commission expires:__________________________________________________________
__________________________________________________________
Notary Public